PRACTICE PAPER CL307

Supreme Court Practice and Procedure

Edited by
Louise Gehrig
Solicitor of the Supreme Court of Victoria
Senior Associate, Mills Oakley Lawyers

Revised by
John Molloy BA, LLB (Hons), LLM (Melb)
Lawyer of the Supreme Court of Victoria
Lecturer, The College of Law Victoria

September 2023

© 2023 The College of Law Limited

This publication is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication
may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright
owner. Neither may information be stored electronically in any form whatsoever without such permission.
Disclaimer
The practice papers have been prepared as practice guides primarily for students at The College of Law and also
for legal practitioners. They are not intended to be a comprehensive statement of the law or practice and should
not be relied upon as such. If advice on the law or practice is required or required to be given, professional advice
should be sought and practitioners should undertake their own legal research.
 CL307 Supreme Court Practice and Procedure

CONTENTS
1 INTRODUCTION ......................................................................................................... 7
1.1 Court rules .................................................................................................................. 7
1.2 Practice notes.............................................................................................................. 7
2 JURISDICTION ........................................................................................................... 7
2.1 Inherent jurisdiction...................................................................................................... 7
2.2 Monetary jurisdiction .................................................................................................... 7
2.3 Geographical jurisdiction .............................................................................................. 8
2.4 Equitable jurisdiction .................................................................................................... 8
3 USE OF TECHNOLOGY .............................................................................................. 8
4 SPECIALIS T LIS TS ..................................................................................................... 9
5 CASE MANAGEMENT – PECULIA RITIES OF VARIOUS LISTS .................................... 10
5.1 Commercial Court ...................................................................................................... 10
5.2 Technology, Engineering and Construction List ............................................................ 11
5.3 Intellectual Property List ............................................................................................. 11
5.4 Judicial Review and Appeals List................................................................................. 12
5.5 Costs Court ............................................................................................................... 12
6 JURISDICTION OF JUDICIAL OFFICERS ................................................................... 13
6.1 Judicial officers .......................................................................................................... 13
6.2 Associate judges........................................................................................................ 13
7 PRE-COMMENCEMENT CONS IDERATIONS ............................................................. 13
7.1 Civil Procedure Act 2010 ............................................................................................ 13
7.2 Costs agreements...................................................................................................... 14
7.3 Money in trust account ............................................................................................... 14
7.4 Preservation of assets – f reezing orders ...................................................................... 14
7.5 Preservation of evidence – search orders..................................................................... 15
7.6 Preliminary discovery ................................................................................................. 15
7.7 Joinder of parties ....................................................................................................... 15
7.8 Joinder of causes....................................................................................................... 16
8 SPECIAL PARTIES.................................................................................................... 16
8.1 Person under disability ............................................................................................... 16
8.2 Business names, sole proprietors and partnerships....................................................... 16
8.3 Corporations.............................................................................................................. 16
8.4 Trustees, executors and administrators........................................................................ 17
8.5 Benef iciaries and other representative actions .............................................................. 17
9 COMMENCEMENT AND DOCUMENTS ...................................................................... 17
9.1 Modes of commencement........................................................................................... 17

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9.2 Writ ...........................................................................................................................18

9.3 Originating motion ......................................................................................................18
9.4 Choice of writ and originating motion ............................................................................19
9.5 Pleadings...................................................................................................................19
9.6 Particulars..................................................................................................................21
9.7 Aff idavits ....................................................................................................................21
9.8 Exhibits......................................................................................................................22
9.9 Amendment ...............................................................................................................22
10 SERVICE OF PROCESS ............................................................................................23
10.1 Key considerations .....................................................................................................23
10.2 Service outside Australia .............................................................................................24
10.3 Proof of service ..........................................................................................................25
11 LODGMENT OF APPEARANCE AND DEFENCE .........................................................25
11.1 Time f or appearance ...................................................................................................25
11.2 The def ence...............................................................................................................26
11.3 Method of pleading in def ence .....................................................................................26
12 DISPOSAL OF A CASE WITHOUT A HEARING ...........................................................26
12.1 Settlement between parties .........................................................................................26
12.2 Documenting the settlement agreement........................................................................28
12.3 Summary disposal ......................................................................................................29
12.4 Summary judgment.....................................................................................................29
12.5 Summary stay or strike out of a pleading ......................................................................30
12.6 Mediation...................................................................................................................31
13 PREPARATION FOR TRIAL........................................................................................31
13.1 Directions hearings .....................................................................................................31
13.2 Discovery, inspection of documents and notices to produce ...........................................32
13.3 Medical examinations..................................................................................................33
13.4 Expert reports.............................................................................................................33
13.5 Notice to admit ...........................................................................................................34
13.6 Subpoenas.................................................................................................................35
13.7 Court book .................................................................................................................35
13.8 Interlocutory applications .............................................................................................35
14 PRACTICE COURT ....................................................................................................36
15 SETTING DOWN FOR HEARING ................................................................................36
15.1 Trial directions date ....................................................................................................36
15.2 Arbitration ..................................................................................................................37
15.3 Ref erees ....................................................................................................................37

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16 THE TRIAL AND ITS AFTERMA TH ............................................................................. 37

16.1 Adjournments and postponements .............................................................................. 37
16.2 Evidence at trial ......................................................................................................... 38
16.3 Judgment and orders ................................................................................................. 39
16.4 Costs ........................................................................................................................ 39
17 ENFORCEMENT OF JUDGMENTS ............................................................................ 39
17.1 Enforcement processes .............................................................................................. 39
17.2 Examination .............................................................................................................. 40
17.3 Attachment of debt/attachment of earnings................................................................... 40
17.4 Warrants of execution ................................................................................................ 40
18 APPEALS ................................................................................................................. 41
18.1 Types of appeals ....................................................................................................... 41
18.2 Lodgment of appeals or leave to appeal....................................................................... 41
18.3 Eff ect of lodgment of an appeal ................................................................................... 42
19 COMMON APPLICATIONS ........................................................................................ 42
19.1 Commencing common applications ............................................................................. 42
19.2 Administration and Probate Act 1958 ........................................................................... 42
19.3 Transf er of Land Act 1958 and Property Law Act 1958 .................................................. 42
19.4 Trustee Act 1958 ....................................................................................................... 42
19.5 Corporations Act 2001 (Cth)........................................................................................ 43
19.6 Adoption Act 1984...................................................................................................... 43
19.7 Appeals f rom other courts and tribunals ....................................................................... 43
20 CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 .......................... 43
21 LOCA TION OF USEFUL INFORMA TION .................................................................... 44
APPENDICES ........................................................................................................................ 45
APPENDIX 1 – SIMPLE FORM OF RELEASE........................................................................... 45
APPENDIX 2 – TERMS OF SETTLEMENT ............................................................................... 46

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ABBREVIATIONS

Charter Charter of Human Rights and Responsibilities Act 2006 (Vic)

Corporations Act Corporations Act 2001 (Cth)

CPA Civil Procedure Act 2010 (Vic)

OAA Oaths and Affirmations Act 2018 (Vic)

SCA Supreme Court Act 1986 (Vic)

SCGCPR Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Chapter I of
the Rules of the Supreme Court). Note that all ref erences to the Rules of
the Supreme Court are to Chapter I unless otherwise stated

SCIPR Supreme Court (Intellectual Property) Rules 2016 (Vic) (Chapter VIII of the
Rules of the Supreme Court)

SCMCPR Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic)

(Chapter II of the Rules of the Supreme Court)

REFERENCES

LexisNexis, Civil Procedure Victoria (looseleaf and online)

LexisNexis, Discovery and Interrogatories Australia (looseleaf and online)
LexisNexis, Legal Costs Victoria (looseleaf and online)

ACKNOWLEDGMENTS
This practice paper was edited by Louise Gehrig and is regularly reviewed and updated (as necessary)
by College of Law academic staf f and other legal practitioners. Previous reviewers include Ian Angus
LLB (Syd), FCIS in 2005, College of Law academic staf f in 2006, Kristof fer Greaves BA, LLB (Hons)
(UNE), GDLP (Leo Cussen) in 2007–2010, Tim Connard BSc, LLB in May 2011, Vivian Moroney
BA (Hons), LLB (Melb) in November 2011, Madeleine Dupuche BA, LLB (Hons) (Melb), DipEd (Mon)
in 2012–2013, David Kim LLB (Hons) (Melb), LLM (Melb) in 2014–2016 and 2018–2020, David Velleley
BA (Syd), LLB (UNSW) in 2017 (joint review) and 2021, Andrew Freadman BA, LLB, Masters Tax in
2017 (joint review), and Rodney Hepburn BBus, LLB (Hons), LLM (Melb) in 2022.
Current revision by John Molloy, September 2023.

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1 INTRODUCTION
1.1 Court rules
The Supreme Court of Victoria is the highest court in the Victorian court hierarchy. It is the most varied
of any court in the state and includes supervision of the decisions of lower courts. Clients may obtain
certain usef ul remedies they seek only in the Supreme Court.
The array of matters heard and determined in the court might overwhelm a newly admitted lawyer. This
is both a challenge and an opportunity f or interesting and varied legal practice. There is nothing routine
about practising in the Supreme Court. Taking the time to learn the practices and procedures of the
Supreme Court will provide its own rewards by way of a satisf ying legal practice.
The legislation governing general civil procedure and practice in the Supreme Court is set out in the
Supreme Court (General Civil Procedure) Rules 2015 (Vic) (SCGCPR). These rules constitute Chapter
I of the Rules of the Supreme Court.
Lawyers should be aware that the Rules of the Supreme Court include other chapters, f or example:
• Chapter II – Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (SCMCPR); and
• Chapter V – Supreme Court (Corporations) Rules 2023 (Vic).
This practice paper provides an overview of the general civil jurisdiction and the procedures of the
Supreme Court to help newly admitted lawyers become f amiliar with the range of matters the court
undertakes.
You should be f amiliar with the Civil Procedure Act 2010 (Vic) (CPA).

1.2 Practice notes

The Supreme Court issues practice notes that provide inf ormation about particular aspects of the
court’s practice, procedure and organisation. They sit alongside the rules of court to provide guidance
in relation to the conduct of proceedings. Lawyers conducting proceedings are expected to be familiar
with their content and act in accordance with that guidance unless directed otherwise. Lawyers who
bring or def end matters in the Supreme Court must be f amiliar with the practice notes.

2 JURISDICTION
2.1 Inherent jurisdiction
The Supreme Court is a superior court of record with inherent jurisdiction to administer justice. In its
inherent jurisdiction, it can admit and strike of f lawyers and charge persons with contempt of court.
Section 85 of the Constitution Act 1975 (Vic) provides that the court will have unlimited jurisdiction in
(or in relation to) Victoria, its dependencies and its adjacent areas. The court’s jurisdiction is wide and
cannot be conf ined or kept in closed categories other than by enactment which must meet criteria
specif ic to s 85. Theref ore, the court can deal with all situations arising, even though there may be no
power to do so contained in the Constitution Act 1975 (Vic) or the Supreme Court Act 1986 (Vic) (SCA),
if the acts are done in pursuit of the administration of justice.

2.2 Monetary jurisdiction

There are no monetary limits placed upon the jurisdiction of the Supreme Court or the County Court.
You need to ascertain the correct court f or your client by the nature of the case. If you determine that
specialist expertise is required due to the complexity of the case, you will f ile your initiating proceedings
in the Supreme Court. This dif f ers f rom other state jurisdictions where monetary value solely
determines the hierarchy of the court. The upper limit of the Magistrates’ Court jurisdiction is currently

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$100,000 (the $100,000 jurisdiction limit does not include any legal costs in respect of the proceedings
that the court may award in addition to the claimed amount).

2.3 Geographical jurisdiction

The Supreme Court can hear and determine any matter that f alls within its geographical jurisdiction
(Victoria, its dependencies and its adjacent areas), including proceedings:
• whose causes of action arose in Victoria; or
• where the subject matter is a contract and:
– the contract is made in Victoria;
– a party to the contract resides or carries on business in Victoria;
– breach of the contract occurred in Victoria; or
– it is governed by the law of Victoria; or
• where there is property to which the cause of action occurred and the property is in Victoria.
Theref ore, it is possible that two parties residing outside Victoria can bring an action in the Supreme
Court on the basis that part or all of the subject property the action relates to is situated in Victoria. The
property is not limited to real property. It can include money on deposit in a bank in Victoria and any
other type of property situated in Victoria.

2.4 Equitable jurisdiction

Section 29(1) of the SCA provides that “every court exercising jurisdiction in Victoria in any civil
proceeding must continue to administer law and equity on the basis that, if there is a conf lict or variance
between the rules of equity and the rules of the common law concerning the same matter, the rules of
equity prevail”.
The Supreme Court is not limited to making orders f or the payment of money. In addition, the court
may make orders f or specific performance, injunction or possession of land – the types of orders that
clients might seek to redress or avoid a wrong when payment of money is an inadequate remedy.
The Supreme Court also has power to make a variety of orders, such as:
• winding up of corporations;
• appointment of receivers and liquidators;
• dissolution of partnerships;
• adoption orders f or children;
• orders directing trustees, administrators and executors to do something or ref rain f rom doing
something;
• orders arising out of loss/damage sustained to a ship, marine insurance matters and the carriage
of goods by ship; and
• orders in relation to proprietary interests in property.
A client can approach the Supreme Court f or one or more of these monetary and non-monetary orders,
even where small amounts of money are involved.

3 USE OF TECHNOLOGY
The Supreme Court encourages the use of inf ormation technology in its processes to improve the
ef f iciency of civil litigation. Lawyers or litigants can electronically lodge, process and retrieve court
documents relating to civil cases in the Supreme Court of Victoria. Electronic f iling is mandatory for
proceedings in the Common Law Division, Commercial Court and Costs Court (see Practice Note
SC Gen 19 RedCrest and RedCrest-Probate Electronic Case Management Systems) and f or all

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criminal proceedings in the Criminal Division of the Supreme Court (see Notice to the Prof ession
Electronic Filing in the Criminal Division (24 January 2019)). Copies of the relevant practice notes are
available on the Supreme Court of Victoria website.
The aim of Practice Note SC Gen 5 Technology in Civil Litigation is to “promote the ef f ective use of
technology in the conduct of civil litigation to reduce time and costs”: para 1.2. The general principles
of the practice note are outlined at para 4, which states that “[d]ealings in hard copy are to be the
exception rather than the rule in all aspects of civil litigation in the Court”: para 4.3. Parties are
encouraged to use technology as much as possible, including in service and correspondence (para 5),
communications with the court (para 6), court f iling (para 7) and discovery (para 8).
For matters bef ore the Commercial Court, Practice Note SC Gen 19 RedCrest and Red-Crest Probate
Electronic Case Management Systems sets out a protocol f or electronically f iling documents and
setting up f or electronic trials.
Parties wanting to obtain a hearing date f or an application in the Practice Court (Common Law) must
apply electronically by completing an online application f orm (Practice Court (Common Law)
Application Inf ormation Form): see Practice Note SC CL 10 Practice Court (Common Law).
The SCGCPR requires parties in civil matters to include an email address f or service in documents
f iled with the court and that ordinary service may be ef f ected by email to that address: rr 5.07 and
6.06.2. These requirements supplement the provisions of the Electronic Transactions (Victoria) Act
2000 (Vic) by f acilitating the ef f icient and timely use of email f or service of documents.

4 SPECIALIST LISTS
The Supreme Court is divided into the Court of Appeal and the Trial Division. This practice paper
f ocuses on parts of the Trial Division.
The Trial Division is divided into:
• Common Law Division;
• Commercial Court; and
• Criminal Division.
Within the Common Law Division, the f ollowing lists are administered (each managed by judicial
of f icers with specialist expertise in the area):
• Civil Circuit List;
• Conf iscation and Proceeds of Crime List;
• Dust Diseases List;
• Employment and Industrial List;
• Group Proceedings List (cross-divisional list);
• Institutional Liability List;
• Judicial Review and Appeals List;
• Major Torts List;
• Personal Injuries List;
• Prof essional Liability List;
• Property List;
• Testators Family Maintenance List;
• Trusts, Equity and Probate List; and
• Valuation, Compensation and Planning List.

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Within the Commercial Court, the f ollowing lists are administered:

• General Commercial Lists, which are each managed by a judge of the Commercial Court;
• Admiralty List;
• Arbitration List;
• Commercial and Retail Leases List (cross-divisional list);
• Corporations List;
• Group Proceedings List (cross-divisional list);
• Insurance List;
• Intellectual Property List;
• Taxation List; and.
• Technology, Engineering and Construction (TEC) List.

5 CASE MANAGEMENT – PECULIARITIES OF VARIOUS LISTS

5.1 Commercial Court
The Commercial Court manages and tries any “commercial proceeding” within the meaning of
SCMCPR O 2 and corporations cases brought under provisions of the Corporations Act or the
Australian Securities and Investments Commission Act 2001 (Cth).
Rule 2.01 of SCMCPR def ines “commercial proceeding” as any proceeding commenced by writ or
originating motion:
(a) which arises out of ordinary commercial transactions, including any proceeding relating to—
(i) the construction of commercial, shipping or transport documents;
(ii) the export or import of merchandise;
(iii) the carriage of goods for the purpose of trade or commerce;
(iv) insurance;
(v) banking;
(vi) finance;
(vii) commercial agency;
(viii) commercial usage; or
(b) in which there is a question that has importance in trade or commerce.
In line with the CPA’s overarching purpose, the Commercial Court must f urther this purpose when
making orders or giving directions by identif ying controversial issues early and adopting appropriate
and timely procedures (including dispute resolution) in a f lexible manner: Practice Note SC CC 1
Commercial Court (Practice Note SC CC 1) paras 1.2 and 1.3.
The Commercial Court aims to bring unresolved proceedings to trial within 9 months of issue: para 4.2.
However, at any stage of a proceeding (including during trial) the court may order that proceedings be
ref erred f or appropriate dispute resolution: para 13.
Rule 1.07 of SCMCPR states:
1.07 Rules of general procedure
Except so far as is otherwise provided by these Rules or any Act, Chapter I of the Rules of the
Supreme Court for the time being in force and the general practice of the Court apply so far as
practicable in relation to a proceeding to which these Rules apply.
Practice Note SC CC 1 provides a practical introduction to procedural matters in commercial disputes
generally and may be usef ul f or entry-level lawyers. For example, para 12 relates to urgent applications,
paras 11.3 and 11.4 to circumstances when applications may be made upon notice rather than by

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summons and para 11.5 to situations when applications must be made by summons. Schedules
attached to the practice note include types of standard orders, such as a typical f orm of trial order: Sch 8.

5.2 Technology, Engineering and Construction List

The Technology, Engineering and Construction (TEC) List is suitable f or proceedings in which a
substantial issue is raised in relation to technology, engineering or building construction works.
It also manages proceedings f or breaches of warranties of perf ormance of contract relating to a
technical component in a contract, and matters involving an alleged f ailure of a technical device due
to underperf ormance or malf unction, of ten requiring technical expert evidence.
Rule 3.01 of SCMCPR def ines “technology, engineering and construction case or TEC case” to mean
any proceeding in relation to:
(a) the design or carrying out of TEC works;
(b) the supervision or inspection of the construction of TEC works;
(c) the performance by an architect, designer, engineer, quantity surveyor or other expert of any other
services in relation to the design or construction or the supervision or inspection of TEC works;
(d) the manufacture or provision of any materials for inclusion in TEC works;
(e) the performance of anything produced, manufactured or constructed as a result of TEC works which
involves or is likely to involve expert evidence of a technical nature;
(f) the sale or supply of anything produced, manufactured or constructed as a result of TEC works which
involves or is likely to involve expert evidence of a technical nature—
but does not include any proceeding that includes a claim for personal injury[.]
“Technology” includes:
(a) telecommunications equipment, devices, systems and networks;
(b) computers, computer modules, computer systems and networks and computer software;
(c) electrical circuits and circuit boards;
(d) machines or machinery;
(e) processing operations and facilities;
(f) any component, module, equipment, machine or system which is produced by the application of
technology, mechanics or applied science.
See Supreme Court Practice Notes SC CC 1 and SC CC 2 TEC List Security for Payments for
guidance on TEC List proceedings.
See Practice Note SC Gen 19 RedCrest and Red-Crest Electronic Case Management Systems f or an
outline of the conduct of proceedings initiated on RedCrest as well as the electronic lodgment, court
f ile and case administration system used in civil proceedings.

5.3 Intellectual Property List

The Intellectual Property List is a judge-managed list under Rules of the Supreme Court Ch VIII –
Supreme Court (Intellectual Property) Rules 2016 (Vic) (SCIPR).
Rule 1.06 of SCIPR def ines an “intellectual property case” to mean:
(a) a proceeding for the infringement, or the determination of the validity, of—
(i) a patent granted under the Patents Act or the Patents Act 1952 of the Commonwealth;
(ii) a trade mark registered under the Trade Marks Act;
(iii) a design registered under the Designs Act;
(iv) EL rights allegedly subsisting under the Circuit Layouts Act;
(v) the design of a logo provided for by the Advance Australia Logo Protection Act;
(vi) a protected design provided for by the Olympic Insignia Protection Act; or
(vii) copyright allegedly subsisting under the Copyright Act;

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(b) an application, appeal or other proceeding under a subject Act, whether or not joined with any other
claim or cause of action;
(c) a proceeding seeking the protection or exploitation of confidential information[.]
A matter is entered into the list:
• by marking the originating process with the words “Intellectual Property List”;
• on application by a party within 14 days af ter appearance, if the judge is satisf ied there are no
good reasons f or not making an order entering the proceeding into the list;
• in any other proceeding by any party or other recognised persons under SCIPR applying to the
judge f or an order entering the proceeding into the list and satisfying the judge that there are good
reasons f or making the order; or
• by the judge’s own motion directing that the proceeding be entered into the list if the judge is
satisf ied that it should be heard and determined in the list: r 2.02.
A judge has the discretion to give any directions f or the conduct of the proceeding in the Intellectual
Property List that they consider conducive “to its ef f ective, complete, prompt and economical
determination”: r 2.04. See r 2.04(2) f or a non-exhaustive list of the matters the judge may give
directions about.

5.4 Judicial Review and Appeals List

Matters appropriate f or the Judicial Review and Appeals List of the Common Law Division include:
• judicial review applications made pursuant to the Administrative Law Act 1978 (Vic) or
SCGCPR O 56;
• appeals f rom a f inal order of the Magistrates’ Court on a question of law pursuant to Magistrates’
Court Act 1989 (Vic) s 109 or Criminal Procedure Act 2009 (Vic) s 272;
• appeals f rom an order of the Victorian Civil and Administrative Tribunal on a question of law
pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148;
• appeals f rom a f inal order of the Children’s Court on a question of law pursuant to Children, Youth
and Families Act 2005 (Vic) ss 329 or 427;
• ref errals f or the determination of a question of law under Charter of Human Rights and
Responsibilities Act 2006 (Vic) (Charter) s 33; and
• other proceedings of a similar nature, being proceedings in the nature of judicial review or appeals
to the Trial Division of the court on a question of law, including applications for leave to appeal to
the court or f or extensions of time in such proceedings, where required.
Lawyers intending to manage a case in this list should caref ully read the specif ic procedural
requirements set out in Practice Note SC CL 9 Judicial Review and Appeals List.

5.5 Costs Court

The Courts Legislation Amendment (Costs Court and Other Matters) Act 2008 (Vic) amended the SCA
and established the Costs Court in the Trial Division of the Supreme Court: see SCA Pt 2 Div 2B.
Supreme Court Practice Notice SC Gen 11 Costs Court sets out practice in relation to various matters
in the Costs Court.
Order 63 of the SCGCPR f acilitates the taxation of costs in the Costs Court. Part 8 of O 63 enables
assessment of costs in appropriate matters without appearance and the provision of an objection to
the assessment if required by a party, as well as mediation of appropriate costs matters by costs
registrars: r 50.07(2.1).

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6 JURISDICTION OF JUDICIAL OFFICERS

6.1 Judicial officers
A judge of the court can undertake all the f unctions of the Supreme Court. However, to make more
ef f icient use of judges’ time, associate judges and judicial registrars undertake some of the court’s
judicial f unctions.
The proper preparation of cases includes determining which level of judicial of ficer has the power to
hear and determine a matter.

6.2 Associate judges

Part 7 of the SCA concerns the of f ice of associate judge. Under SCA s 17(1A), the Trial Division
constituted by an associate judge may hear and determine all matters, whether civil or criminal, not
required by or under the SCA or any other Act or rules to be heard and determined by the Court of
Appeal or by the Trial Division constituted by a judge of the court.
Sections 109A–113B set out the f unctions of associate judges and SCGCPR O 77 covers their
authority. Rule 77.01(2) of the SCGCPR provides f or associate judges to hear and determine
applications and exercise powers under specif ic provisions.
Rule 77.03 provides:
77.03 Associate Judge to hear application
(1) Subject to paragraph (2), an application in a proceeding for any judgment or order which may,
in accordance with this Order, be given or made by an Associate Judge shall be made to an
Associate Judge, not a Judge of the Court.
(2) A judgment or order to which paragraph (1) applies may be given or made by a Judge of the
Court on—
(a) a reference by an Associate Judge to a Judge of the Court under Rule 77.04;
(b) an application made by special leave of a Judge of the Court;
(c) an appeal from an Associate Judge referred to in Rule 77.06;
(d) the trial of the proceeding.
Consequently, an associate judge will hear and determine interlocutory (bef ore trial) applications:
• f or summary judgment;
• f or dismissal of proceedings;
• to add parties;
• to amend pleadings;
• f or substituted service; and
• f or preliminary discovery.
See Practice Note SC Gen 8 Appeals from Associate Judges.

7 PRE-COMMENCEMENT CONSIDERATIONS
7.1 Civil Procedure Act 2010
You must have regard to the overarching purpose and obligations contained within the CPA and advise
your clients accordingly.
The courts have introduced certif ication requirements, f orms, directions and notices pursuant to the
CPA. See, f or example, SCGCPR O 4 Pt 2 and Forms 4A and 4B in relation to overarching obligations
certif ication and proper basis certif ication.

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7.2 Costs agreements

You should enter into a costs agreement with your client disclosing an estimate of anticipated
prof essional f ees pursuant to Legal Prof ession Unif orm Law (Legal Profession Uniform Law Application
Act 2014 (Vic) Sch 1) Pt 4.3. Among other things, you must also disclose to a client:
• basis on which legal costs will be calculated;
• manner and f requency of billing;
• anticipated disbursements;
• rate of interest (if any) that may be charged on overdue costs; and
• if the matter is litigated, estimate of the costs that may be recoverable or payable if the client is
successf ul or unsuccessf ul.
If you will brief counsel, you must disclose to your client the basis on which counsel’s f ees will be
charged and include a f ee estimate in the costs estimate you provide.
In “no win, no f ee” matters, you should enter into a conditional costs agreement under Legal Prof ession
Unif orm Law s 181 (and s 182, if applicable).
Section 183 of the Legal Prof ession Unif orm Law prohibits contingency f ee agreements (where the
lawyer’s f ees are calculated by ref erence to the amount of any award or settlement recovered in the
proceeding). In a group proceeding, however, the Supreme Court may make a “group costs order”
calculating the legal costs payable to the law practice representing the plaintiff and the group members
as a percentage of the amount of any award or settlement that may be recovered in the proceeding:
SCA s 33ZDA.

7.3 Money in trust account

Many cases involve expensive legal work and the engagement of counsel and other experts, so
matters can last f or several years. It is prudent to ensure that the client makes f unds available in
advance in respect of expenses legitimately incurred on the client’s behalf (such as experts’ f ees and
search f ees) and f or legal f ees (such as counsel’s f ees). Lawyers are personally liable to third parties
retained on the client’s behalf unless the retainer with the third party expressly stipulates otherwise.

7.4 Preservation of assets – freezing orders

Af ter obtaining judgment, your client will not benef it f rom complex and expensive litigation if the
def endant has no assets against which you can enf orce the judgment. You should obtain instructions
to investigate whether property exists in the jurisdiction f rom which a judgment can be satisfied
and whether that property is likely to disappear by being disposed of or moved to f rustrate a
judgment creditor.
It might be appropriate to apply f or a f reezing order (f ormerly known as a Mareva injunction), which, if
granted, would prevent dissipation of assets until the proceedings are resolved. See SCGCPR O 37A
and Practice Note SC Gen 17 Freezing Orders.
The f reezing order is designed to preserve the assets to ensure that they are available to satisfy a f inal
order. Once the f inal order is satisf ied, or if the substantive claim f ails, the defendant restrained under
a f reezing order will be f ree to deal with the assets previously restrained without any encumbrance.
The object of O 37A is not to provide a f orm of security but to prevent f rustration or abuse of process:
Practice Note SC Gen 17 Freezing Orders para 4.2. The court will not grant such relief lightly, and you
should caref ully f ollow the requirements of O 37A and the practice note. You must support the
application f or the order by af f idavit, addressing the matters set out in O 37A.02(5) and Practice Note
SC Gen 17 Freezing Orders para 4.18. For f urther commentary regarding f reezing orders, see Civil
Procedure Victoria (LexisNexis, looseleaf and online).

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7.5 Preservation of evidence – search orders

Assess the risk of certain evidence that is currently in the other party’s possession and critical to your
client’s case being destroyed or disappearing. For example, in a case concerning illegal importation of
DVDs breaching copyright, the actual DVDs could be critical f or your client to prove its case.
Consider seeking a search order (f ormerly known as an “Anton Piller” order) pursuant to SCGCPR
O 37B. See Practice Note SC Gen 16 Search Orders, which states:
4.1 Ordinarily, a search order is made without notice and compels the respondent to permit persons
specified in the order (‘search party’) to enter premises and to search for, inspect, copy and remove
the things described in the order. The order is designed to preserve important evidence pending the
hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the
applicant against the respondent or against another person. The order is an extraordinary remedy
in that it is intrusive, potentially disruptive, and made without notice and prior to judgment.
Lawyers should caref ully f ollow the requirements of O 37B and Practice Note SC Gen 16 Search
Orders. For f urther commentary regarding search orders, see Civil Procedure Victoria.

7.6 Preliminary discovery

Usually, the plaintif f can identif y the party to be sued, but sometimes the plaintif f is not certain who is
the proper def endant. The plaintif f may have dealt with a particular individual but is unsure whether
that person is a principal, an agent or an employee of another entity.
Preliminary discovery pursuant to SCGCPR r 32.03 provides a limited f orm of discovery to enable a
party to identif y the appropriate party against whom to commence the action. Rule 32.03(2) provides
that the court may order a person or, in the case of a corporation, an appropriate of f icer, to:
(a) attend before the Court to be orally examined in relation to the description of the person concerned;
(b) make discovery to the applicant of all documents which are or have been in his, her or its possession
relating to the description of the person concerned.
In the example given above, it may be possible to summons the person the plaintif f was dealing with
to question that person and to cross-examine on documents to determine if the person was the
principal, an agent or an employee of a person or other entity and who that person or other entity is.
Af ter this procedure, the plaintif f is in a better position to f ile and serve documents on the appropriate
def endant in the f irst instance.
To do otherwise (that is, to sue all persons who could be a def endant) is to invite a costs order in f avour
of the parties wrongly sued.
The scope of O 32 extends beyond simply identif ying the correct def endant to an action. Rule 32.05
provides f or discovery of any document f rom a prospective def endant. The purpose is to help the
applicant decide whether it has the right to obtain relief where inspection of the document would help
the person make that decision.
You commence an application under r 32.03 or r 32.05 by way of originating motion (see rr 32.08(1)
and 5.02(2)) supported by an af f idavit. If made, the order must be served and conduct money tendered
bef ore the person can be compelled to attend.

7.7 Joinder of parties

Rule 9.02 of the SCGCPR permits two or more def endants or plaintif f s to be joined in a proceeding
where, if separate proceedings were brought by or against each of them:
• a common question of law or f act would arise in all the proceedings and the relief claimed in the
proceeding arises out of the same transaction or series of transactions; or
• if the court gives leave.

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Under r 9.04, the court may intervene if the joinder will embarrass or delay the trial, cause prejudice to
any party or is otherwise inconvenient.
It is pref erable to issue the proceeding with all parties named as def endants where there is a common
question of law or where the parties are involved in the same cause of action. This saves a multitude
of proceedings and the costs consequences of this f or your client.

7.8 Joinder of causes

Similarly, it is possible to include in the one action against the same def endant a multitude of causes
of action. You can commence actions this way f rom the beginning or you can join actions later with or
without leave under SCGCPR r 9.01 (subject again to the court’s power to intervene under r 9.04).
You can only amend a statement of claim without leave once bef ore the close of pleadings:
r 36.04(1)(a). You may otherwise amend pleadings at any time with the leave of the court or the consent
of all parties: r 36.04(1)(b).

8 SPECIAL PARTIES
8.1 Person under disability
Under SCGCPR O 15, a “person under disability” means a minor or a “person who is incapable, by
reason of injury, disease, senility, illness or physical or mental inf irmity, of managing that person’s
af f airs in relation to the proceeding”.
Except where otherwise provided under another Act, a person under disability must have a litigation
guardian to commence or def end proceedings: r 15.02(1). The procedures relating to the appointment
of a litigation guardian are set out in r 15.03. The litigation guardian must act by a solicitor (r 15.02(3))
and must seek the leave of the court to any compromise (settlement) of the proceeding: r 15.08.

8.2 Business names, sole proprietors and partnerships

Order 17 of the SCGCPR applies to proceedings concerning partnerships and sole proprietors trading
under a business name. Rule 17.01 allows f or proceedings to be commenced against the partners in
the business’s name. Where a business name has been registered (on the national business names
register established under the Business Names Registration Act 2011 (Cth) and administered by
ASIC), the person who is the business name holder can be served in accordance with SCGCPR
r 17.03.
Proceedings can be commenced against a sole proprietor in their business name under r 17.10. Where
r 17.10 applies, rr 17.02–17.09 also apply with any necessary modif ication.
Rule 17.01 applies to partnerships but r 17.01 is excluded under r 17.10. Consequently, an individual
can be sued under the business name pursuant to r 17.10 but cannot sue under the business name –
whereas partners can sue or be sued under the name of the f irm.
In either situation, the business trading under a business name is not a legal entity so a proceeding
against the person and/or partners in the business name is a proceeding against them individually.
Where partners sue under a business name, they sue personally, jointly and severally.

8.3 Corporations
It is important to adequately describe a party that is a company under the Corporations Act.
Section 161 of the Corporations Act provides that a change of name under the Corporations Act will
not af f ect the company’s rights and obligations and any legal proceedings that might have commenced
or continued by or against the company under its f ormer name. Theref ore, the company can be

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pursued under its new name. It is important to include the ACN (Australian Company Number) of any
corporation in the court heading as this is a key identif ier. See also Corporations Act s 153.
A company (whether or not a party) must not take any step in a proceeding except by a solicitor, unless
otherwise provided by any Act or the SCGCPR: SCGCPR r 1.17. One exception is that a corporation
may, through a person duly authorised by that corporation, f ile and serve a notice of appearance
(r 8.03(2)), but this is generally the only step the company can take. This rule is in place to satisf y the
court that the person having the conduct of the proceedings is in a position to ensure that the company
abides by any orders the court makes during the conduct of the proceedings.

8.4 Trustees, executors and administrators

Trustees, executors and administrators can sue and be sued in the same way as if they were parties
to the proceedings: SCGCPR O 16 generally.

8.5 Beneficiaries and other representative actions

In cases involving the construction of wills or in other cases where a number of persons have the same
interest in the proceedings, it is possible to commence proceedings by appointing one or more of them
as the representative of them all: SCGCPR r 18.02. This avoids a multiplicity of actions or a multiplicity
of parties to the one action. Any judgment or order entered will be binding on all represented persons.
The essential pre-condition to this arrangement is that all parties have exactly the “same interest”. See
O 18 generally.

Group proceedings
Group proceedings (sometimes ref erred to as class actions) involving seven or more persons may also
be commenced. Section 33C(1) of the SCA provides:
(1) Subject to this Part, if—
(a) seven or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related
circumstances; and
(c) the claims of all those persons give rise to a substantial common question of law or fact—
a proceeding may be commenced by one or more of those persons as representing some or all of them.
See generally SCA Pt 4A, SCGCPR O 18A and Supreme Court Practice Note SC Gen 10 Conduct of
Group Proceedings (Class Actions).

9 COMMENCEMENT AND DOCUMENTS

9.1 Modes of commencement
In the Supreme Court, there are two primary modes of commencement:
• writ; and
• originating motion.
Some more obscure causes of action and appeals are commenced other than by writ or originating
motion: see Civil Procedure Victoria.
It is important to check the relevant rules. Under Supreme Court (Corporations) Rules 2023 (Vic) r 2.2,
a matter is commenced by an “originating process” which must be in accordance with Form 2 of the
rules (such as an application to set aside a creditor’s statutory demand), whereas an interlocutory
application within a proceeding already commenced must be made by f iling an “interlocutory process”
in accordance with Form 3 of the rules.

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In some types of matters, the SCGCPR specif y the method to commence the proceedings and dif ferent
procedures attached to it; in other cases, the choice is open to the plaintif f . However, the majority of
proceedings f or non-urgent relief are commenced by writ. There are a number of prescribed f orms
which can be f ound in the Court Forms section of Civil Procedure Victoria, being Writ Form 5A and
Originating Motion Forms 5B–5G.
Pursuant to the CPA, the Supreme Court has certif ication requirements. See, f or example, SCGCPR
O 4 Pt 2 and Forms 4A and 4B (the relevant f orms f or overarching obligations certification and proper
basis certif ication).
The overarching obligations certif icate signed by the party must generally be f iled with the “f irst
substantive document” f iled in the proceeding: CPA s 41. The practitioner signs the proper basis
certif icate and a certif icate must be f iled when any substantive pleading is f iled: CPA s 42.
A ”substantive document” includes an originating motion, writ, def ence or notice of def ence, a
counterclaim or answer to counterclaim, a third-party notice and a summons or af f idavit which
commences a civil proceeding or a summons or an af f idavit which is the f irst response of a party in a
civil proceeding: CPA s 3.
Section 44 of the CPA provides f or certain exceptions in matters of urgency. Section 45 provides that
a matter may proceed (unless a court otherwise orders) despite a f ailure to comply with a certif ication
requirement. However, the f ailure to comply is a f actor f or the court to consider in determining the costs
of a proceeding, making procedural orders or any other order the court deems appropriate: CPA s 46.

9.2 Writ
Rule 4.04 of the SCGCPR provides that every proceeding must be commenced by writ, except as
provided by rr 1.12, 4.05, 4.06 and O 58.
There is only one f orm of writ: Form 5A. Forms 5B–5G are originating motions. Pleadings and
discovery f acilitate the resolution of issues of f act, and these two processes attach automatically to
proceedings commenced by writ. Theref ore, a writ is the appropriate means of commencement where
there is a dispute of f act in most circumstances. The majority of claims in contract and tort are
commenced by writ, and statement of claim and discovery by the parties f ollows. Evidence is oral
unless otherwise ordered. An advantage of a writ over an originating motion is the availability of the
procedure f or summary judgment under r 22.01.
Rule 5.04(1) states that a writ must contain an indorsement of claim. The indorsement of claim must be:
• a statement of claim (which is necessary to obtain judgment by default for failure to f ile a notice of
appearance or serve a def ence); or
• “a statement suf f icient to give with reasonable particularity notice of the nature of the claim and
the cause” and the relief or remedy sought: see r 5.04(2) and (3).
Indorsements of claim are sometimes used where the expiration of a statute limit is imminent.

9.3 Originating motion

An originating motion is required (SCGCPR r 4.05) where:
• there is no def endant (f or example, a proceeding under Property Law Act 1958 (Vic) s 84 f or the
discharge or modif ication of a restrictive covenant);
• an application is authorised to be made to the court by or under any Act (f or example, the
appointment of a trustee under Trustee Act 1958 (Vic) s 48); or
• the SCGCPR requires it (f or example, a summary proceeding f or the recovery of land under
r 53.02(2)).

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Proceedings commenced by originating motion are supported by af fidavits rather than oral evidence.
Theref ore, originating motions are not suitable where there are f acts in dispute (because there are no
pleadings) and discovery is not as of right and can only be obtained by leave: r 29.07(2). In relation to
interrogatories, see r 30.02(3).
The f ive dif f erent types of originating motion are (note there is no Form 5F):
• Form 5B – appropriate f or the most common f orm of proceeding by originating motion, a
proceeding between the parties: r 5.02(2);
• Form 5C – used f or proceedings commenced under rr 41.19 (applications f or taking evidence
abroad) and 45.05(2)(b), which include urgent injunction matters where it may save time and
expense f or the parties and cases where the def endant consents: r 5.02(2));
• Form 5D – used where there is no def endant;
• Form 5E – used in a summary proceeding f or the recovery of land pursuant to O 53: rr 5.02(2)
and 53.02(3); and
• Form 5G – used f or commencing judicial review proceedings under O 56.
An originating motion sets out the orders the applicant is seeking from the court together with the relief
or remedy sought and the Act (if any) under which the claim is made. Where it includes the answer to
a question, the question must be stated.
Proceedings commenced by originating motion typically specif y a return day appointed by the
Prothonotary’s Of f ice upon f iling, which is never the case with a writ.
The important point in relation to draf ting an originating motion is that the f orm of orders sought must
be caref ully draf ted so that if the court agrees with the f acts and evidence presented in the af f idavit by
the applicant, it may make the orders exactly as sought.
Each order must be concise and precise. For example, if you are seeking to restrain a person f rom an
activity, you should specif y:
• who is to be restrained;
• what actions they are to be restrained f rom perf orming;
• duration of the restraint; and
• consequences of non-compliance.

9.4 Choice of writ and originating motion

In some cases, the plaintif f can select which mode of commencing proceedings to use. It is pref erable
to adopt originating motion procedure where:
• it is unlikely there will be any substantial dispute of f act; and
• f or that reason, it is appropriate that there be no pleadings or discovery.
Where a proceeding is commenced by originating motion but should have been commenced by writ,
the court may order that:
• the proceeding continue by way of pleadings;
• the af f idavits already f iled stand as pleadings: SCGCPR r 4.07(1)(a); and
• the proceeding will be taken to have been commenced on the day the originating motion was f iled:
r 4.07(1)(b).

9.5 Pleadings
The statement of claim typically f iled with a writ must specif y the relief claimed and/or the question for
determination by the court. Near the end of the statement of claim, the request to the court usually

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f ollows the words: “The plaintif f claims” or “And the plaintif f claims”. If two or more types of relief are
sought, they should be set out in separate paragraphs.
You should specifically claim interest under SCA ss 58 or 60. Frequently, in practice this is denoted by
the words “Interest pursuant to statute”. However, you should avoid this because if you identif y the
statute there is no conf usion as to the basis on which you claim interest. It is important to consider the
provisions of the relevant section. For example, SCA s 58 might be preferred in certain circumstances.
Under SCGCPR O 13, certain rules must be f ollowed in relation to pleadings. The f ormal requirements
under r 13.01 are:
• every pleading must bear on its f ace the description of the pleading and the date on which it is
served: r 13.01(1);
• each pleading must be divided into paragraphs consecutively numbered and each allegation so
f ar as practicable must be contained in a separate paragraph: r 13.01(2); and
• a pleading settled by counsel must be signed by that counsel and, if not so settled, signed by the
solicitor who will be responsible to the court f or the matter on behalf of the party and the practice
or, where the client is self -represented, by the party themselves: r 13.01(3).
Rules 13.02–13.15 deal with the content of pleadings and include the f ollowing:
• Every pleading must contain, in summary f orm, a statement of the material f acts the party relies
on but not the evidence by which the f acts will be proved: r 13.02(1)(a).
• Where any claim or def ence arises by or under any Act, the specif ic provision must be identif ied:
r 13.02(1)(b).
• The relief or remedy claimed must be clearly stated: r 13.02(1)(c).
• A party may f irst, by their pleading, raise a point of law and, second, plead a conclusion of law if
the material f acts supporting the conclusion are pleaded: r 13.02(2).
• The ef f ect of any document or purport of any conversation should be pleaded as brief ly as
possible, and the precise words should not be pleaded unless those words are themselves
material: r 13.03.
• A party need not plead any f act if it is presumed by law to be true or the burden of disproving it
lies on the opposite party unless the other party has specif ically denied it in their pleadings: r 13.04.
• An allegation of the perf ormance or occurrence of any condition precedent necessary f or the claim
or def ence of a party will be implied in the pleading: r 13.05.
• Where a contract or “relation” between parties is to be implied f rom a series of letters or
conversations or other circumstances, it is sufficient to allege the contract or relation as a f act and
ref er generally to the letters, conversations or circumstances without setting them out in
detail: r 13.06.
• Generally, a party is under an obligation to plead a matter that, if not pleaded, may take a party
by surprise: r 13.07(1)(b).
Where a document f or use in the court contains scandalous, irrelevant or otherwise oppressive matter,
the court may order:
• that the matter be struck out; or
• if the document has been f iled, that it be taken of f the f ile: r 27.07.
Rule 23.02 provides that a pleading may be struck out 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 the process of the Court[.]

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A number of def ences/partial def ences must be specifically pleaded, with particulars, including f raud,
contributory negligence, agency (want of authority), justif ication or privilege in def amation proceedings.
For f urther inf ormation regarding pleadings, see O 13 and the relevant commentary in Civil Procedure
Victoria. For the f ormal requirements of court documents, see O 27 generally.

9.6 Particulars
Order 13 of the SCGCPR govern the way particulars of any pleadings are to be given.
A party must provide particulars of any f act or matter pleaded, to allow the opposite party to define the
questions f or trial and to avoid surprise at trial: r 13.10(2).
Specif ically, a party must plead particulars of the f ollowing alleged matters:
• misrepresentation, f raud, breach of trust, wilf ul def ault or undue inf luence: r 13.10(3)(a); and
• disorder or disability of the mind, malice, f raudulent intention or other condition of the mind,
including knowledge or notice: r 13.10(3)(b).
Under r 13.11(1), the court may order a party to serve on any other party particulars or f urther and
better particulars. Under r 13.11(3), the court may ref use to make an order if the party applying did not
f irst apply by letter f or the particulars they need. The court will not usually order particulars bef ore a
def ence is served unless the particulars are necessary f or the def endant to plead its def ence or for
some other special reason: r 13.11(2).

9.7 Affidavits
Order 43 of the SCGCPR specif ies requirements f or af f idavits to be f iled at court. In summary:
• The af f idavit should be in the f irst person: r 43.01(1).
• Unless otherwise ordered by the court, the af f idavit must state:
– deponent’s place of residence: r 43.01(2);
– deponent’s occupation: r 43.01(2);
– that the deponent is a party to the proceeding or an employee of a party if that is the case:
r 43.01(2); or
– if made in the deponent’s prof essional/occupational capacity, the deponent’s place of
business, the position the deponent holds and the name of the business or employer (if any):
r 43.01(3).
• The af f idavit should be divided into consecutively numbered paragraphs, and each paragraph
should contain only one f act/event/issue: r 43.01(4).
• Both the deponent and the witness must sign the jurat portion of the af f idavit: r 43.01(5).
• The witness must sign each page of the af f idavit: r 43.01(6). (The Oaths and Affirmations Act
2018 (Vic) (OAA) requires both the deponent and the witness to sign each page of the af f idavit,
as noted below.)
• On the f inal page, the witness must, below their signature in the jurat, legibly write, type or stamp
their name, address and the capacity in which they have authority to take the af f idavit: r 43.01(7).
• Special provisions as to signing apply if the deponent has a vision impairment, is unable to read
or write or has a cognitive impairment: r 43.02.
• Where an interpreter is required, the interpreter must include in the jurat (or a separate af f idavit)
the matters set out in r 43.02.1(2). See also O 44A and Form 44AA (Expert witness code of
conduct).
The SCGCPR is not the only document to consider when preparing and/or witnessing af f idavits. The
OAA has re-enacted and modernised the law in Victoria relating to oaths, af f irmations, af fidavits and
statutory declarations. Among other things, the OAA prescribes:

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• bef ore whom an af f idavit may be sworn, f or use in any Victorian court: s 19;
• bef ore whom an af f idavit should be sworn outside Victoria, f or use in a Victorian court: s 21;
• where and when the deponent and witness should sign the af f idavit – both the deponent and the
witness must sign each page of the af f idavit: ss 25 and 26;
• the use of electronic signatures and initials: s 18A;
• how the deponent and witness should sign the jurat: s 27; and
• the process in respect of an af f idavit by a deponent who has a vision impairment, is unable to read
or write or has a cognitive impairment: s 28.

9.8 Exhibits
Rule 43.06(2) of the SCGCPR sets out the requirement f or the documents ref erred to in an af f idavit to
be annexed to the af f idavit as a bundle exhibit.
A Certif icate Identif ying Exhibit or Exhibits (Form 43A) must be attached to the bundle of documents:
see SCGCPR r 43.06(5). You should make copies of the exhibit and the exhibit sheet for the other party
and f or your own use. See also Practice Note SC CC 1 in respect of documents filed in the Commercial
Court. For example, correspondence between practitioners to be relied on f or an interlocutory
application need not be exhibited to an af f idavit.

9.9 Amendment
There are wide powers f or amendment of pleadings once they are f iled and served on a party. Under
SCGCPR r 36.04(1), a party may amend any pleading served by the party:
• once bef ore the close of pleadings; and
• at any time:
– by leave of the court; or
– with the consent of all other parties.
If a party amends a pleading in accordance with r 36.04(1)(a), the other party may apply within 21 days
af ter service of the amended pleading to disallow the amendment: r 36.04(2).
If a writ or other originating process has not yet been served, the procedure f or amendment is set out
in r 36.03. It requires an af f idavit to be f iled stating that service has not occurred, all sealed copies of
the writ or other originating process (and other documents f iled) to be returned to the court and each
amendment made in a way that distinguishes that amendment f rom the original writ or other originating
process.
Under r 36.01(1), the court may at any stage of the proceedings, of its own motion or at a party’s
request, order that any document may be amended or that any party have leave to amend f or the
purpose of :
• determining the real question in controversy between the parties;
• correcting any def ect or error in a proceeding; or
• avoiding a multiplicity of proceedings.
Where the court has given a party leave to amend a document, that order ceases to have ef f ect:
• when the time limit imposed by the court has expired; or
• if there is no time limit in the order, 21 days f rom the date of the order.
See r 36.02.

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Rule 63.17 provides:

Where a pleading is amended (whether with or without leave) the costs of and occasioned by the amendment
and the costs of any application for leave to make the amendment are the parties’ costs in the proceeding,
unless the Court otherwise orders.
The procedure f or amending a pleading as set out in r 36.05 is:
• Either the copy of the pleading filed in the court is amended or a copy of the pleading as amended
is f iled (r 36.05(1)(a)) and a copy of the amended pleading is served on all parties (r 36.05(1)(b)).
• The party amending must distinguish the amendments f rom the original and any previous
amendment: r 36.05(4). This is typically done using the Word track changes f unction.
• Where the pleading is amended under r 36.05(1)(a), it must be indorsed with a statement to the
ef f ect that the amended copy has been substituted (r 36.05(2)), f or example, “Statement of Claim
amended pursuant to r 36.05(1)(a) and f iled on 7 February 20xx”.
• If the amendment is made pursuant to an order of the court, the amendment should be indorsed
as appropriate: r 36.05(3). For example, where the amendment is pursuant to r 36.04(1)(b), below
the title of the document (in this case, “Amended Statement of Claim”) should be the words
“Statement of Claim amended on 7 February 20xx pursuant to the Order of Justice Smith made
on 5 February 20xx”.
• Where the amendment is by consent of all parties pursuant to r 36.04(1)(b), the indorsement
should read: “Statement of Claim amended by consent of all parties pursuant to r 36.04(1)(b) and
f iled on 7 February 20xx”.
Where leave is requested in a proceeding where a limitation period has expired since the proceeding
was commenced, the court must be satisf ied, bef ore granting leave (r 36.01(6)):
• that any other party to the proceeding would not be prejudiced in the conduct of their claim or
def ence by the order; and
• that the prejudice can be f airly met by an adjournment, an award f or costs or otherwise.
The court may at any time correct a clerical mistake in a judgment or order or an error arising in a
judgment or order f rom an accidental slip or omission: r 36.07.
The amendment of pleadings must be considered in light of the overarching purpose and obligations
in the CPA and the court’s case management powers in CPA Pt 4.2. If a person contravenes a case
management direction or order given under Pt 4.2, the court may strike out or amend any document
f iled by the person, either in whole or in part: CPA s 51(d). In addition, the court may dismiss the civil
proceeding, order costs, or make any other order it considers appropriate: s 51(a), (f ) and (g).

10 SERVICE OF PROCESS
10.1 Key considerations
Order 14 of the SCGCPR contains the rules relating to service of pleadings in the Supreme Court.
Under r 5.11, the originating process must be filed and sealed by the court. See also r 28.03 regarding
indorsement of the date and time of f iling by the court and r 28.04 f or seal of the court. For electronic
f iling of documents in RedCrest, including in any proceeding in the Commercial Court and most
Common Law Division matters, see O 28A.
In the Supreme Court, a writ used to commence an action may be indorsed with either:
• a claim; or
• a statement of claim.

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Where a writ has indorsed the words “Statement of Claim” on page 2 that is in compliance with r 5.04(3)
(a f ull statement of claim set out in the writ), there is no need to serve a separate statement of claim:
SCGCPR r 14.01.
Where a writ has the word “claim” on page 2 that does not constitute a statement of claim in accordance
with r 5.04 and the def endant f iles an appearance, the plaintif f must serve a statement of claim on that
def endant within 30 days af ter the def endant’s appearance, unless the court otherwise orders: r 14.02.
Where the statement of claim in a proceeding has been commenced by writ, the plaintif f may alter,
modif y or extend the claim endorsed on the writ without amendment of the actual indorsement which
appears on the writ: r 14.03(1).
The court may also by order allow the plaintif f to serve a statement of claim, the ef f ect of which will be
to add a new cause of action to, or substitute a new cause of action f or, a cause of action disclosed in
the writ: r 14.03(2).
Note the provisions in the SCGCPR relating to service of pleadings:
• def ence: r 14.04;
• reply: r 14.05;
• pleading af ter reply: r 14.06;
• def ence to counterclaim: r 14.07;
• close of pleadings: r 14.08;
• order as to pleadings: r 14.09; and
• f iling of pleadings: r 14.10.
Order 6 contains the rules relating to personal service of documents.
The originating process is to be served personally (in other words, the document must be given to or
lef t with the person named in the originating process): r 6.02(1). Most other documents (except
subpoenas) may be served by ordinary service.
Service of any proceeding against a company incorporated under the Corporations Act is by leaving
the originating process at, or posting it to, the registered of f ice of the company: see Corporations Act
s 109X. A solicitor acting on a corporation’s or entity’s behalf can also accept service on behalf of a
corporation (or any entity): SCGCPR r 6.09.
If a party is to be served outside Victoria but within Australia, you must take into account:
• SCGCPR r 6.17 (Af f idavit of service); and
• Service and Execution of Process Act 1992 (Cth) ss 11 and 16.
A notice under Service and Execution of Process Act 1992 (Cth) s 16 must be served with the
originating process: see Form 1 in Service and Execution of Process Regulations 2018 (Cth) Sch 1.
See also Civil Procedure Victoria.

10.2 Service outside Australia

Order 7 of the SCGCPR governs service outside Australia. The rules in O 7 Pt 1 relate to when service
is allowed out of Australia and the rules in O 7 Pt 2 relate to requirements f or service in a f oreign
country.
Originating process may be served out of Australia without the order of the court in a wide variety of
circumstances as detailed in r 7.02, including where:
• relief is sought against a person domiciled in Australia;
• the subject matter of the proceeding is land situated in Australia; and
• the proceeding concerns a contract that was by its terms or by implication to be governed by
Australian law or to be enf orceable in an Australian court.

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Originating process served on a defendant out of Australia must be served with a notice in Form 7AAA
inf orming the person of (r 7.05):
(a) the scope of the jurisdiction of the Court in respect of claims against persons who are served out of
Australia; and
(b) the grounds alleged by the plaintiff to found jurisdiction; and
(c) the person’s right to apply for an order setting aside the originating process or its service on the person
or dismissing or staying the proceeding.
Service of originating process out of Australia need not be personal but must be in accordance with
the law of the country it is served in: r 7.09. Civil Procedure Victoria notes that service of originating
process on a def endant out of Australia “should ordinarily be personal”.
Order 7A deals with trans-Tasman proceedings under the Trans-Tasman Proceedings Act 2010 (Cth).
Part 2 of the Act applies to service in New Zealand of initiating documents issued by Australian courts
and tribunals.
Order 80 of the SCGCPR deals with service under the Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters, opened f or signature 15 November 1965,
658 UNTS 163 (entry into f orce 10 February 1969).

10.3 Proof of service

Proof of service is provided by the f iling of an af f idavit of service.
The court f orms of af f idavits of service are af f idavits of :
• personal service of originating process;
• service of originating process on an of f icer of a corporation;
• service by post;
• substituted service by advertisement;
• service of summons; and
• service of summons by post where the def endant has no address f or service.
For examples, see Civil Procedure Victoria Pt 3 Author’s Precedent Forms and Documents.

11 LODGMENT OF APPEARANCE AND DEFENCE

11.1 Time for appearance
A def endant cannot take any step in the proceedings until they f ile an appearance: SCGCPR r 8.02.
Unless the court otherwise orders, the time f or f iling an appearance under SCGCPR r 8.04 must be:
(a) where the originating process is to be served in Victoria, not less than 10 days after service;
(b) where the originating process is to be served out of Victoria and in another part of Australia, 21 days
after service;
(c) where the originating process is to be served in Papua New Guinea, not less than 28 days after service;
(d) where the originating process is to be served in New Zealand under Part 2 of the Trans-Tasman
Proceedings Act 2010 of the Commonwealth—
(i) 30 working days (within the meaning of that Act) after service; or
(ii)if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the
period so fixed;
(e) in any other case, not less than 42 days after service.

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There are two types of appearances:

• an unconditional appearance ref erred to as a notice of appearance (r 8.05(1), Form 8A), by which
the def endant waives any objection to jurisdiction of the court and to any irregularity in the process
known to the def endant; and
• a conditional appearance in Form 8B (r 8.08(2)), required when a def endant objects to the
jurisdiction of the court or the proceeding as irregular. The def endant then has 14 days af ter the
f iling of the conditional appearance to apply by summons to seek appropriate orders: SCGCPR
r 8.08(4).
The def endant must serve (in accordance with r 6.07(1)) a sealed a copy of the notice of appearance
on the plaintif f on the date the appearance was f iled: r 8.05(3).

11.2 The defence

The CPA certif ication requirements apply to all parties, including the def endant: CPA Pt 4.1.
If the plaintif f’s statement of claim is indorsed on the writ, the def ence must be served within 30 days
af ter f iling the appearance: SCGCPR r 14.04(a).
If the statement of claim was served separately, the def ence must be served within 30 days af ter
service of the statement of claim: r 14.04(b).
If the def endant sets up a counterclaim in the def ence, the plaintiff or any person joined as a defendant
to the counterclaim must serve a reply and def ence to counterclaim or a def ence to counterclaim within
30 days af ter service of the def ence and counterclaim unless the court orders otherwise: r 14.07.

11.3 Method of pleading in defence

The same rules of pleading that apply to a statement of claim also apply to a def ence and counterclaim.
Under SCGCPR r 13.12:
• every allegation of f act in any pleading will be taken to be admitted unless it is denied specif ically
or by necessary implication or is stated to be not admitted: r 13.12(1);
• if a party pleading intends to prove f acts different f rom those pleaded by the opposite party, then
the party pleading must plead those f acts they intend to prove: r 13.12(2); and
• any allegation that a party has suf f ered damage and any allegation as to the amount of damages
will be taken to be denied unless specif ically admitted: r 13.12(3).

12 DISPOSAL OF A CASE WITHOUT A HEARING

12.1 Settlement between parties
Most cases are settled prior to a contested trial as a result of negotiations between the parties’
respective legal representatives. The courts have long encouraged this approach, and it is especially
reinf orced by the overarching purpose and some overarching obligations under the CPA.

Offer of compromise
Order 26 of the SCGCPR provides an of f er of compromise procedure.
Either party can serve an of fer of compromise upon the other. The object is to compel the of feree to
seriously consider the of fer. There can be costs consequences f or the of f eree if they reject the offer
and then later obtain no better result in the proceeding.
If the plaintif f makes the of f er in proceedings that relate to a claim f or damages f or or arising out of
death or bodily injury and obtains a result equal to or better than that contained in the of fer, unless the

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court otherwise orders, the plaintif f will be entitled “to an order against the def endant f or the plaintiff’s
costs in respect of the claim taxed on an indemnity basis”: r 26.08(2)(a).
If the plaintif f makes the of f er in proceedings (other than those involving damages f or death or bodily
injury) and obtains a result equal to or better than that contained in the of f er, unless the court otherwise
orders, the plaintif f will be entitled “to an order against the def endant f or the plaintif f’s costs in respect
of the claim bef ore 11.00 a.m. on the second business day af ter the of f er was served, taxed on the
ordinarily applicable basis and f or the plaintif fs’ costs thereaf ter taxed on an indemnity basis”:
r 26.08(2)(b).
If the def endant makes the of f er in proceedings and the plaintiff obtains a result no more f avourable to
the plaintif f than the def endant’s of f er:
• the plaintif f is entitled “to an order against the def endant f or the plaintif f’s costs in respect of the
claim bef ore 11.00 a.m. on the second business day af ter the of f er was served, taxed on the
ordinarily applicable basis”: r 26.08(3)(a); and
• the def endant is entitled “to an order against the plaintiff for the defendant’s costs in respect of the
claim thereaf ter taxed on the ordinarily applicable basis”: r 26.08(3)(b).
The of fer must be in writing, comply with rr 27.02 and 27.04 and expressly state that it is made in
accordance with O 26: r 26.02(3). The of fer can be expressed to be open f or a limited time but not less
than 14 days f rom the date that the of f er was served on the of f eree: r 26.03(3).
The of fer cannot be withdrawn during the time it is open f or acceptance unless the court orders
otherwise: r 26.03(5). The of f er is presumed to be made “without prejudice” unless the of fer expressly
states otherwise: r 26.04.
The of f er of compromise is not f iled at court. The existence of the of f er should not be disclosed in any
pleading or af f idavit, or communication to the court, until af ter all questions of liability and the relief
to be granted have been determined unless the of f er is expressly stated as not made without
prejudice: r 26.05.

Calderbank letter
A Calderbank letter is an inf ormal of fer of compromise made without prejudice save as to the question
of costs. It takes its name f rom the f amily law case Calderbank v Calderbank [1976] Fam 93. The letter
is tendered to the court on the question of costs af ter determination of the trial.
You must take care when draf ting Calderbank letters. A Calderbank of fer contained in a letter must be
“clear, precise and certain” (Kemp v Ryan [2012] ACTCA 12 [13]) and the letter must set out (among
other things) the basis on which it would be unreasonable f or the of feree to reject the of f er. If a court
f inds that a party has unreasonably rejected a Calderbank of f er, it may order costs on an indemnity
basis. In Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435,
442 [25]; [2005] VSCA 298, the Court of Appeal stated that a court considering whether rejection of a
Calderbank letter was unreasonable should have regard to:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s
rejecting it.

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Terms of settlement
It is open to the parties to settle the dispute on terms at any point during the proceedings. It is common
to reduce the settlement agreement to terms of settlement and to request the court to make consent
orders to that ef f ect.
You must take considerable care with the draf ting of the terms of settlement. See Court Forms
Precedents and Pleadings Victoria (LexisNexis, online) f or a checklist and summary.

12.2 Documenting the settlement agreement

There are various methods of documenting a settlement agreement, such as a deed of settlement and
release, consent orders and terms of settlement f or f iling with the relevant court.
To understand which method is appropriate, it is necessary to identif y the stage a dispute has reached.
There are essentially two stages to a dispute:
• where proceedings have not been commenced – the only method to document any settlement
reached is by a written agreement (usually in the f orm of a release) recording the terms of the
settlement; and
• where proceedings have been commenced – any settlement agreement should include
arrangements f or bringing the court proceedings to an end by f iling either terms of settlement or
consent orders (f or practical purposes, these terms are synonymous) or a notice of
discontinuance. It may also be appropriate to have a collateral settlement agreement in the f orm
of a release. The documents recording the terms of the settlement must be draf ted with particular
care so that they clearly operate to release the parties f rom all causes of action arising out of the
matter.
Where proceedings have been commenced, SCGCPR O 25 provides that they can be discontinued or
any part withdrawn bef ore the close of pleadings or at any time with the leave of the court or the consent
of all other parties.
While a notice of discontinuance does discontinue the court proceedings, it does not af f ect a res
judicata or a release. Unless a collateral settlement agreement documents a release between the
parties, those proceedings can be re-activated in the f uture or new proceedings can be commenced.
If the parties are not intending to prepare a collateral settlement agreement, they should f ile terms of
settlement or consent orders containing a f ull release.
When consent orders are granted, they become orders of the court. When draf ting the consent orders,
lawyers must theref ore ensure that the court has jurisdiction to make and enf orce the orders sought.
In court proceedings, the def ault position is f or the terms of settlement to require consent orders f or a
monetary judgment, which then can be readily enf orced with well-established court enf orcement
procedures.
However, where the court does not have the jurisdiction to enf orce a particular order sought (which is
necessary to f inalise the matter) or if there are reasons why the parties do not wish judgment to be
entered (such as conf identiality), a separate or collateral written agreement (terms of settlement)
recording the settlement reached should be draf ted. The reasons may be:
• commercial;
• related to issues of conf identiality; or
• that a party does not want to risk acquiring an adverse credit rating f rom the f act that a judgment
has been recorded.
A settlement agreement is of ten prepared in the f orm of a deed to avoid any issues arising out of lack
of consideration. However, a deed is not strictly necessary in most cases as there is usually no doubt
in the context of the settlement of a commercial dispute that the requirement f or consideration to pass

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is satisf ied. Giving up the right to commence legal proceedings constitutes valuable consideration.
Mutual releases would be necessary where there was a claim and counter-claim involved.
When draf ting a settlement agreement, you must consider:
• the issues to be covered by the release or mutual releases; and
• whether it is just the claim at hand (that is, the cause of action giving rise to the claim) or other
issues (all possible causes of actions arising f rom a set of f actual circumstances, for example, in
a debt situation, all issues arising out of the contract under which the debt was created) that needs
to be addressed.
One set of f acts may spawn several causes of action, so a release covering the claim arising f rom just
the cause of action at hand may not be suf f icient. There may be several causes of action arising out
of a set of facts although not all of them are pleaded in the proceedings. A lawyer must always ensure
that they include a f ull and f inal release in any settlement agreement and that the issues released are
properly covered in accordance with the client’s instructions.
For example, in a settlement agreement of a litigious matter arising over a dispute relating to a contract
(usually, in a commercial setting, a debt arising out of the sale of goods), the release needs to address
whether it is to operate as a release of all issues arising out of the contract or just a release of the
cause of action. The def ault position would be a release of all issues arising out of the contract. The
def inition section of the release document would need to def ine with certainty what the release covered.
In other words, the release might be of all issues arising under a contract or the “proceedings”, which
might be def ined to cover either the cause of action or all causes of action arising out of the f actual
matters pleaded in the proceedings between the parties (def ined by ref erence to court and matter
number).
A settlement agreement may be draf ted conditionally. For example, it may provide that certain pre-
conditions must be met by a certain date and that, when they have been complied with, a f ull release
or mutual releases applies and the court proceedings discontinued. Alternatively, the condition might
be that terms of settlement are signed (under which judgment is ef f ected) but that such terms will not
be f iled with the court pending the conditions being met. Either approach maintains conf identiality,
avoids any issue with court orders and jurisdiction and enables the proceedings or enf orcement
proceedings to continue if the conditions are not complied with.
In short, draf ting terms of settlement requires detailed consideration of all causes of action that may
arise in relation to the dispute between the parties to ensure that no claims may be brought in the f uture.
See Appendix 1 f or an example of a simple release f or a matter where no proceedings have been
commenced and Appendix 2 f or an example of terms of settlement f or a matter where Supreme Court
proceedings have been commenced. Both appendices are simple documents provided as example
starting points f or draf ting terms of settlement. Any terms of settlement must be caref ully draf ted to
ref lect the specif ic circumstances of the dispute.

12.3 Summary disposal

Several methods of summary disposal are available and worth considering. In the appropriate case, a
matter can be resolved very early in the litigation. Applications are made by way of summons and
af f idavits in support.

12.4 Summary judgment

Part 4.4 of the CPA provides that a plaintif f or def endant may apply f or summary judgment on the
grounds that all or part of the opposing party’s claim or defence has “no real prospect of success”: see
ss 60–62. Subject to CPA s 64, the court may order summary judgment f or a party on application of a
party or on the court’s own motion: s 63. The court retains a discretion to allow a matter to proceed to

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trial if the court is satisf ied that, despite there being no real prospects of success, the matter should
not be disposed of by summary judgment because it would not be in the interests of justice to do so or
because only a f ull hearing on the merits of the case would be appropriate: s 64.
Part 2 of SCGCPR O 22 applies where a plaintif f seeks summary judgment against a defendant in any
civil proceedings, including those commenced by writ: r 22.01. The application must be made by
summons and supported by an af f idavit:
• verif ying the f acts that the claim or part of the claim the application relates to is based on; and
• stating that, in the belief of the deponent, the def endant’s def ence to the claim or to the relevant
part of the claim has no real prospects of success or has no real prospects of success except as
to the amount of the claim or the amount of the relevant part of the claim: r 22.04(1).
In the supporting af f idavit, the plaintif f should depose f acts within their personal knowledge. The
af f idavit may also contain statements of fact based on inf ormation 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: r 22.04(3).
On the hearing of the application, the court has the power to make a number of orders, including an
order dismissing the application, giving judgment f or the plaintif f on the claim or part of the claim as
appropriate or giving the def endant leave to def end the claim or part of the claim: r 22.08.
Part 3 of O 22 applies where the def endant applies f or summary judgment under CPA s 62.
The High Court in Trkulja v Google LLC (2018) 263 CLR 149, 158 [23]; [2018] HCA 25 stated (notes
omitted):
In Victoria, the test for summary judgment is prescribed by s 62 of the Civil Procedure Act: whether the
plaintiff’s claim has “no real prospect of success”. Consistently with Spencer, the view taken in Victoria is
that the power to dismiss an action summarily is not lightly to be exercised but that, like the test applicable
to s 31A of the Federal Court of Australia Act, the “no real prospect of success” test is to some degree more
liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff’s case
is not “hopeless” or “bound to fail”, it does not have a real prospect of succeeding.
See also Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29]; [2013] VSCA
158 and Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 [127], which sets out the
f ollowing principles f or summary determination under CPA s 63 (notes omitted):
(a) the test for summary judgment is whether the respondent to the application has a ‘real’ as opposed to
a ‘fanciful’ chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with
the ‘hopeless’ or ‘bound to fail test’ put forward in General Steel Industries Inc v Commissioner for
Railways (NSW);
(c) it should be understood, however, that the test is, to some degree, a more liberal test than the ‘hopeless’
or ‘bound to fail’ test put forward in General Steel; and
(d) the power of summary dismissal is to be exercised with caution unless it is clear that there is no real
question to be tried (that is, a question which realistically might result in the respondent to an application
for summary judgment succeeding in the proceeding).

12.5 Summary stay or strike out of a pleading

The def endant may apply to have the matter stayed if it appears that:
• the action commenced by the plaintif f is scandalous, vexatious or f rivolous;
• there is no reasonable cause of action disclosed; or
• the action is an abuse of the court’s process: SCGCPR r 23.01.
On the same basis, the court may order that part or all of a pleading be struck out or amended: r 23.02.

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In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580, 592 [35]; [2020] VSCA 186, the Court of
Appeal said:
35 … [W]here there is a contentious or debatable point of law which arises on a pleading, it is usually
inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application,
particularly where the answer may depend upon the factual context.

12.6 Mediation
The court can ref er a case to mediation with or without the parties’ consent at any stage in the
proceeding: SCGCPR r 50.07.
In practice, all matters are ref erred to mediation unless the parties provide compelling reasons. Where
a court ref ers a proceeding or any part of a proceeding to mediation, unless all parties who attend
agree in writing, no evidence will be admitted at the hearing of the proceeding of anything said or done
by any person at the mediation: SCA s 24A.
Mediation is a structured negotiation process where the impartial mediator attempts to help the parties
resolve their dispute through def ining and/or narrowing the issues in dispute and generating options
f or resolution. The mediator’s role:
• is undertaken with the intention of assisting the parties to resolve their dif f erences; and
• may ultimately result in a settlement without the necessity of a hearing.
This process does not impinge on the parties’ ability to independently make their own alternative or
early dispute resolution arrangements. The overarching obligations imposed by CPA s 22 require the
parties to make reasonable ef f orts to do so.
Practice Note SC Gen 6 Judicial Mediation Guidelines sets out the guidelines f or the ref erral process
and the procedures f or the conduct of judicial mediations (mediation conducted by the court). Judicial
mediation is not intended to replace traditional mediation but may be another option f or dispute
resolution in appropriate cases (such as where there has been an earlier unsuccessf ul mediation, one
party has limited resources or there is a risk that the costs and time of a trial would be disproportionately
high compared to the amount in dispute or the subject matter of the dispute).

13 PREPARATION FOR TRIAL

13.1 Directions hearings
Practice notes issued by the court are updated periodically and provide guidance on civil case
management in the Supreme Court. It is imperative that lawyers f irst read and f ollow the practice
note(s) specif ic to the list in which the matter is bef ore the court. Subject to the requirements set out in
list-specif ic practice notices, there are generally two directions hearings:
• initial directions hearing (f irst directions hearing); and
• f urther directions hearing (there may be more than one).
Bef ore the initial directions hearing, a party may (without leave) f ile and serve a proposed timetable,
setting out all steps that are to be taken in the proceeding before the case is given a date f or trial. The
timetable must be f iled and served af ter f iling of appearance and on all other parties that have
appeared. The court expects that generally the parties should settle initial directions “on the papers”.

Initial directions hearing

Each list may have its own procedures f or the initial directions hearing. Lawyers need to review the
current practice notes and directions applicable to the relevant list to ensure that they f ollow the correct
procedures.

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Generally, the initial directions hearing is used to:

• set the trial direction date;
• determine the timetable of interlocutory steps f or the matter;
• determine whether an order should be made f or the separate trial of any question; and
• determine whether the matter should be ref erred to mediation and, if so, when.
This initial directions hearing usually occurs af ter the def endant has f iled a notice of appearance and
def ence and any counterclaim. The court receives the f ile and considers what directions should be
given f or the f uture conduct of the proceeding.
None of the management steps proposed at the initial directions hearing will operate as a stay of
proceedings. The times f ixed by the SCGCPR will continue to run pending the giving of directions.
As the client’s legal representative, you need to check with the court whether:
• you must attend at the initial directions hearing; or
• the court will not hear the parties or receive any written submissions at the initial directions hearing.
If the court deems a directions hearing held at the request of a lawyer unnecessary, this may result in
a costs order against the lawyer.
See Practice Note SC CC 1 in respect of how the f irst and f urther directions hearings are managed in
the Commercial Court.

13.2 Discovery, inspection of documents and notices to produce

Civil Procedure Victoria [I 29.01.10] (Meaning of discovery) states:
In civil procedure, discovery means the compulsory disclosure to a party before trial of information relating
to the questions for determination in the proceeding which could assist the party to establish the claim or
defence of the party.
In many cases, documents are crucial to the determination of issues in the case. The procedure for
discovery and inspection enables a party to gain access to documents that are relevant to the issues
between the parties.
Part 4.3 of the CPA relates to disclosure and discovery. Some key sections are outlined below:
• Discovery in civil proceedings must be in accordance with the court rules: s 54.
• The court has broad discretion to make orders or directions in relation to discovery that it considers
necessary or appropriate: s 55(1).
• Section 55(2) and (3) sets out a non-exhaustive list of examples of the kind of orders or directions
the court may make (f or example, in relation to the scope of documents to be discovered,
timetabling, presentation and f acilities f or inspection).
• The CPA provides f or sanctions for non-compliance, including initiating proceedings for contempt,
adjournment, costs, restriction on use of documents, preventing a party f rom taking any step in
the proceedings and awarding compensation: s 56.
• The deponent to an affidavit of documents may (unless the court orders otherwise) be cross-examined
in relation to interpretation of discovery obligations or f ailure to disclose discoverable documents,
provided there is a reasonable basis f or the cross-examination: s 57.
• The powers of a court under CPA Pt 4.3 are in addition to, and do not derogate from, any powers
a court has under rules of court in relation to discovery or disclosure of documents: s 59.
Order 29 of the SCGCPR deals with discovery. Subject to certain exceptions, r 29.01.1(3) limits the
scope of the documents to be discovered to:
• documents the party relies on;
• documents that adversely af f ect the party’s own case;

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• documents that adversely af f ect another party’s case; and

• documents that support another party’s case.
Absent court directions, the process for discovery starts with the service of a notice f or discovery: see
r 29.02(2) and (3). This rule provides that a party to proceedings may, by notice of discovery
(Form 29A) served on any other party, require the party served to make discovery of all documents
that are or have been in that party’s possession. If the notice f or discovery is served bef ore the
pleadings are closed, it shall be taken to have been served on the day af ter pleadings close: r 29.02(3).
The party the notice is served on (or against whom the order is made) is required within 42 days af ter
service of the notice to prepare a sworn af f idavit of documents (Form 29B): r 29.04. Discovery is
usually made by the f iling and service of a sworn af f idavit of documents with schedules containing a
list of discoverable documents and may be made in electronic f orm: see Practice Note SC Gen 5
Technology in Civil Litigation paras 8.1–8.6 and 8.10–8.13. Paragraph 4.3 of the practice note states
that the court is guided by a general principle that dealings in hard copy are to be the exception rather
than the rule in all aspects of civil litigation in the court.
Take care preparing the schedule of documents or classes of documents sought to be discovered.
In complex or specialist cases, it would be prudent to seek a barrister’s advice when preparing
the schedule.
When an af f idavit of documents is served on a party, the party can inspect the discovered documents
by serving a notice to produce (SCGCPR r 29.09(3); Form 29C) requiring that the documents ref erred
to in the af f idavit be produced f or inspection (r 29.09(1)). The party receiving the notice to produce
must, within 7 days, serve a notice (there is no prescribed f orm) appointing a time and place within the
next 7 days where the inspection can take place: r 29.09(2). You can also use a notice to produce to
obtain copies of documents ref erred to in pleadings: r 29.10.
In practice, court directions of ten govern the process of discovery: see, f or example, Practice Note
SC CC 1 paras 9.1–9.4. Such directions given pursuant to practice notes obviate the need to serve a
notice f or discovery.
Practice Note SC CC 1 reminds practitioners that (para 9.1):
… The process of discovery does not affect the overarching obligation to disclose documents critical to the
resolution of the dispute in the proceeding under s 26 of the Civil Procedure Act.

13.3 Medical examinations

Where a party claims damages in respect of bodily injury, one party may require another party to submit
to a medical examination by a medical practitioner of their choice: SCGCPR O 33. The requesting
party must bear the expense of the medical examination. The court may stay the proceedings if the
party to be examined unreasonably ref uses to comply with the request: r 33.04(2).

13.4 Expert reports

An expert report is a statement that sets out the expert’s opinion and the f acts the opinion is based on.
An “expert” is a person who has specialised knowledge based on training, study or experience:
SCGCPR r 44.01. Essentially the expert report contains the substance of the evidence the expert will
give at the trial. The most common expert reports are those of :
• medical experts;
• accounting experts; and
• building and engineering experts.
The parties must exchange the expert reports they rely on not later than 30 days bef ore the day f ixed
f or trial: r 44.03(1)(b).

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The court may order the parties’ experts to conf er and provide the court with a report specif ying the
matters they agree on and those they do not agree on and the reasons f or non-agreement: r 44.06(1).
See r 44.06 in relation to conf identiality of the conf erence, binding agreement (if any) and attendance
by legal representatives.
Rule 44.03 governs the way to commission experts and how their reports are to be draf ted. In particular,
the expert must be provided with the expert witness code of conduct at the time the expert is retained
or shortly af terwards: r 44.03(1)(a).
In Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [2014] VSC 567, the Supreme
Court addressed concerns by the trial judge in relation to an expert’s report, as to whether the expert
and the lawyers retaining that expert had discharged their paramount duty to the court. The expert had
produced two different versions of a report, only one of which was provided to the court. In discussing
the expert’s obligation to assist the court and the parties in their understanding of the issues in dispute
rather than to advocate f or the party they represent, the court noted that the expert witness code of
conduct is not limited to reports that are used in evidence and that, under the CPA, the expert’s duties
to the court must also be observed bef ore trial when preparing reports.
Further, even though the barrister submitted that the instructing solicitor had no knowledge of the
version of the report that was not submitted to the court, the court nonetheless f ound that the solicitor
had breached her overarching obligations under CPA s 26:
[226] Put another way, where a solicitor has arranged matters so that the retained counsel undertakes on
her behalf dealings with an expert witness, the solicitor not only authorises the barrister to perform all
necessary steps but also places the barrister in the position of acquiring firsthand knowledge of relevant
facts. At the same time, the solicitor deprived herself of the opportunity of acquiring such firsthand
knowledge. If the dealings by the barrister invest him with actual personal knowledge of the document, those
dealings will bind the solicitor with that knowledge. Where the barrister’s awareness of the document is
unequivocal and arises in performance of his retainer, at the time when the barrister is aware that he is in
possession, custody or control of the document, the solicitor will be aware of the document in the sense
required by s 26 of the Civil Procedure Act. The duly authorised conduct of the barrister, who has acquired
the relevant knowledge, will, without either conduct or actual knowledge on the solicitor’s part, constitute an
effective awareness of the document.
More recently, in Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 the court said
(notes omitted):
2125 Experts, like advocates, enjoy a position of particular privilege. Manipulation of expert evidence has
long been endemic in civil litigation and remains a concern to courts. In the heat of litigation, the
persuasiveness of expert opinion as advocacy is as beguiling, for litigant and legal practitioner alike, as the
siren’s song was for Ulysses. But like the sweeter music of Orpheus, the duty to the administration of justice
must always prevail.
2126 It must again be said that it misconceives an expert’s duty if it be solely defined by a retainer for a party
in litigation, as a commitment to advance only the interests of that party. The duty is of a different, wider
nature, owed to the community through the paramount interest in the administration of justice. The
overarching obligations in the Civil Procedure Act now sit with the Expert Code of Conduct to remind the
expert of their paramount duty to the administration of justice and of the new ways in which it is enforceable.

13.5 Notice to admit

A party may serve on another party a notice to admit the authenticity of a f act or a document: SCGCPR
rr 35.03 and 35.05. The notice must state that, unless the other party (within a time set out in the notice
but not less than 14 days) disputes the f act or document, then f or the purposes of the current case
only, that document or f act will be taken to be admitted.
Where the f act or document is disputed and its authenticity is proven at trial, the liability f or costs of
proving the authenticity shall be determined in accordance with r 63.18. Unless the court otherwise

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orders, the party disputing the f act or document that is later proved in the proceeding must pay the
costs of proof .

13.6 Subpoenas
Order 42 of the SCGCPR governs the issue of subpoenas. The person requesting the issue of
the subpoena is “the issuing party” and the person to whom the subpoena is addressed is “the
addressee”: r 42.01.
The court may order that the addressee attend to give evidence or produce documents: r 42.02(1).
The requirement to produce certain documents or to attend court to give evidence constitutes a written
court order.
Use Form 42A where the addressee must personally attend court, Form 42B where the addressee
must produce documents, and Form 42C where the addressee must do both: see r 42.03(1).
The subpoena must be served not later than 5 days bef ore the earliest date on which the addressee
is expected to comply with the subpoena or such other date determined by the court: r 42.03(8)(a).
The addressee must be given conduct money at the time of service, or at a reasonable time bef ore the
return of the subpoena before the court, otherwise the person will be excused f rom complying with the
subpoena: r 42.06(1). “Conduct money” means (r 42.01):
… a sum of money or its equivalent, such as prepaid travel, sufficient to meet the reasonable expenses of
the addressee of attending court as required by the subpoena and returning after so attending[.]
Order 42A applies where a non-party to the proceeding is required to produce documents for evidence
to the Prothonotary. Form 42AA must be used: r 42A.03. The addressee complies with this f orm of
subpoena by delivering or sending the document to the Prothonotary on or before the day specif ied in
the subpoena: r 42A.05(1). Order 42 applies to an O 42A subpoena so f ar as is practicable:
r 42A.01(2).
Subpoenas issued f or the production of documents must not be draf ted too widely and constitute a
“f ishing expedition” or a substitute f or discovery. A subpoena addressed to a non-party that is very
wide, or that is so vague that it requires the person to decide which documents relate to the issues
between the parties, is not suf f iciently precise and may be set aside: see rr 42.04(1) and 42A.07 and
the commentary at Civil Procedure Victoria [I 42.01.35].
Subpoenas must be returned to the Prothonotary bef ore the trial of the proceeding. If a subpoena is
being returned by post, the Prothonotary must receive it not less than 2 clear business days before the
day specif ied in the subpoena f or attendance and production: r 42.06(4)(b).

13.7 Court book

The usual directions (made in many cases, if not most, as the result of agreed consent orders) require
a f ormal court book to be prepared to assist the trial process: see Practice Note SC CC 1 para 15,
which details the requirements f or court books in the Commercial Court. See also the schedules to the
practice note that provides examples of the appropriate orders that the parties should generally agree
as well as in relation to court books.

13.8 Interlocutory applications

It might be necessary to make an interlocutory application for orders to compel a party to comply with
directions or to gain some f orensic advantage.
An interlocutory application is commenced by summons (see SCGCPR O 46), which sets out the relief
sought and the rule or legislation under which the relief is sought. An af f idavit should support the
summons: see O 43.

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Common types of interlocutory applications are f or:

• expedited hearing – used where a plaintif f or a main witness is likely to die or to become
unavailable shortly;
• security f or costs – used when the plaintif f is a person who normally resides outside of the
jurisdiction and there are no f unds f rom which a costs order could be satisfied or where a corporate
plaintif f may be unable to meet any costs order made against it;
• limiting the scope of documents produced under subpoena – used when the subpoena is too wide;
• amendment with leave – used to amend an originating process or defence or to add a party out of
the time when such amendment cannot occur as of right;
• stay of proceedings – used to prevent f urther progress in the proceeding;
• narrowing the scope of interrogatories – used when they are too wide or vexatious;
• application to set aside judgment – used when a def ault judgment has been entered when there
was a good reason f or the def ence not being lodged in time and where there is a good def ence
on the merits available;
• application f or enf orcement or sanctions f or f ailure to comply with directions – used when one
party has not complied with directions, subpoenas, orders or a timetable to ensure compliance;
and
• injunctions – used when it is necessary to urgently prevent a party f rom doing an act that, if not
prevented, will prevent the court f rom doing justice between the parties.

14 PRACTICE COURT
The judge sitting in the Practice Court hears urgent applications, such as:
• injunction and f reezing order applications;
• caveat removal applications;
• initial applications under the Confiscation Act 1997 (Vic) and the Proceeds of Crime
Act 2002 (Cth); and
• ref errals f rom an associate judge.
Urgent applications are def ined as applications that must be determined within 2 business days:
Practice Note SC CL 10 Practice Court (Common Law) para 3.1.
Parties wishing to obtain a hearing date f or an application in the Practice Court (Common Law) must
apply electronically by completing an online application f orm (Practice Court (Common Law)
Application Inf ormation Form): see Practice Note SC CL 10 Practice Court (Common Law) para 4.1.
The Practice Court (Common Law) does not hear urgent Commercial Court matters. Ref er to
Practice Note SC CC 1 para 12 in regard to urgent applications.

15 SETTING DOWN FOR HEARING

15.1 Trial directions date
It is important to note that each list may have its own procedures f or trial directions in addition to the
SCGCPR and practice notes that operate generally. Lawyers need to review the current practice notes
and directions applicable to the relevant list to ensure that they f ollow the correct procedures.
Generally, at the initial directions hearing, an order is prepared setting out the dates on which
interlocutory steps are to be taken. It may or may not allocate a trial date. If the trial date is to be set
down at a later stage in the proceeding, the parties will need to appear bef ore the court at a f urther
directions hearing where the court will set down the trial date.

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Subject to specif ic procedures applicable to individual lists:

• unless the proceeding has been discontinued or f inal orders have been made disposing of the
proceeding, the matter will be called bef ore the listing judge in charge of the list f or directions for
trial; and
• each lawyer having the carriage of the matter on a party’s behalf must attend the directions hearing
ref erred to in the order.
There is a less common method where a plaintif f may have the proceedings set down f or trial at any
time af ter the close of pleadings by filing a duly completed and signed Notice of Trial (Form 48A) or, if
the court so orders, Form 48B. This process is available under SCGCPR r 48.02. Importantly, O 48
does not apply to a proceeding in any of the f ollowing lists:
• Admiralty List;
• TEC List;
• Commercial List;
• Corporations List;
• RedCrest Corporations List;
• Intellectual Property List; and
• Valuation, Compensation and Planning List.

15.2 Arbitration
At any stage of a proceeding, the court may ref er the proceeding or a question within the proceeding
to arbitration (with the parties’ consent): SCGCPR r 50.08. Such arbitration can be conducted in
accordance with the Commercial Arbitration Act 2011 (Vic) or the International Arbitration Act
1974 (Cth). See Practice Note SC CC 3 Commercial Arbitration Business.

15.3 Referees
The court may ref er any question to a special ref eree to decide the question or provide an opinion,
subject to the right to trial by jury where it exists: SCGCPR r 50.01(1).
The special ref eree will enquire into the matters the subject of the ref erence and provide the court with
a report stating the ref eree’s opinion on the questions put to them and the reasons f or the opinion. The
court has discretion to either adopt or decline a special ref eree’s report: r 50.04. The report has no
ef f ect unless and until it is adopted by the court in whole or in part.

16 THE TRIAL AND ITS AFTERMATH

16.1 Adjournments and postponements
The court has the inherent power to grant adjournments on such terms as it thinks f it to do justice
between the parties: SCGCPR r 49.03.
The court’s power to grant an adjournment is discretionary. Do not assume a request f or adjournment
will be granted. The discretion is exercised on the basis of whether a party would be seriously
prejudiced if the adjournment were not granted. A party seeking an adjournment must be prepared to
have a costs order made against it f or costs thrown away by the adjournment.
An application f or adjournment must be based on clear and persuasive grounds, such as:
• the unexpected unavailability of a witness;
• discovery of new evidence; or
• to ef f ect amendments to pleadings.

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Mere inconvenience to a party or a party’s legal representatives is not suf f icient grounds. In considering
whether to grant an adjournment, the court will take into account the CPA’s overarching purpose and
the rules of court “to f acilitate the just, efficient, timely and cost-effective resolution of the real issues in
dispute”: CPA Pt 2.1 s 7.

16.2 Evidence at trial

The court may give directions as to the order of evidence, addresses and the conduct of the trial:
SCGCPR r 49.01(1). Subject to this rule, where the burden of proof on:
• any question lies with the plaintif f , the plaintif f will commence; and
• all issues lies with the def endant, the def endant will begin.
Under r 49.01, the general procedure is:
(a) The party commencing f irst will open its case with an opening address (f irst party).
(b) That party will then call its witnesses, who will give evidence-in-chief .
(c) The other party may cross-examine the witnesses (second party).
(d) If the second party does not adduce evidence, the first party will make closing addresses and then
the second party may make an address.
(e) If the second party wishes to adduce evidence, it will f ollow the same process as set out in (a)–(c)
above.
(f ) Af ter calling all witnesses in its case, the second party will make closing addresses and the f irst
party will then make closing addresses.
As the court has a discretion to determine the trial procedure f or individual cases, lawyers should not
assume that the above procedures will be strictly f ollowed. For example, the court may require the
parties to articulate their case at the start of trial by hearing the opening addresses of both parties
(which may include considering a chronology and list of issues of dispute) bef ore the parties adduce
evidence.
The court may order that evidence of any particular f act must be given at the trial or at any stage of a
proceeding in such manner as it directs: r 40.05(1). The court has the power to direct that a person
may appear bef ore, or give evidence or make a submission to, the court by audiovisual link or audio
link if good reason is shown as to why the witness should not attend: Evidence (Miscellaneous
Provisions) Act 1958 (Vic) s 42E.

Expert evidence
Where expert reports have been properly served in accordance with SCGCPR O 44, they are admitted
into evidence at trial. If an expert report has not been served in accordance with the rules bef ore the
start of the trial, leave must be sought to serve it. If leave is ref used, it cannot be used and the expert
cannot be called to give evidence.

Documentary evidence
If a party holds a relevant document the other party wishes to use in the trial, that party can serve a
Notice to Produce (Form 29C) document at the trial: r 29.09.

Views
The court may inspect or (in a trial with a jury) authorise the jury to inspect any place, process or thing
during or bef ore the commencement of a trial: r 40.13. The court has discretion whether to hold a view.

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Citation of cases
Where ref erence is made to a case or judgment, a copy (in either paper or electronic f orm) must be
made available to the court and opposing counsel. Practice Note SC Gen 3 Citation of authorities and
legislation provides:
5.1 Where a judgment is reported in an authorised series of law reports, all references and citations
must be to, and any copy provided to the Court must be a copy of, the authorised report.

16.3 Judgment and orders

Any judgment or order given or made by the court with the parties’ consent (by def ault or decision of
the court af ter hearing the proceeding and making a determination) must be authenticated f or it to be
capable of enf orcement: SCGCPR O 60. Frequently, the parties are asked to prepare minutes of
judgment or order ref lecting the contents of the judgment or orders and to f ile them: rr 60.02(2) and
60.08; Forms 60A–60L. If the matter goes to a hearing, the judge must give reasons f or the orders to
be made, either in open court or by delivering a copy of the reasons to the parties.
If there is an error on the f ace of the orders, the “slip rule” applies. That is, on the application of a party
or of its own motion, the court may correct the mistake or error: r 36.07. The court, however, does not
have jurisdiction to correct an authenticated judgment under the slip rule: Lollis v Loulatzis (No 3) [2008]
VSC 231 [12]–[34].

16.4 Costs
The Supreme Court has power to award costs in f avour of one party over the other: SCA s 24. The
awarding of costs is discretionary. Usually, the costs will f ollow the event – in other words, the
unsuccessf ul party in the litigation will be ordered to pay the costs (generally taxed on the “standard
basis”) of the successful party. If the discretion is exercised in f avour of the awarding of costs, this will
be included in the orders made. See SCGCPR O 63.
There are many f actors that can af f ect the making of costs orders, including whether:
• there have been any of f ers of compromise;
• there was a submitting appearance by one party;
• there have been any interlocutory applications during the proceedings; and
• there has been non-admission of f acts or documents that should have been admitted, thereby
setting the other party to the expense of proving those f acts.
A detailed study of the costs regime is beyond the scope of this practice paper. For further commentary
see, f or example, Legal Costs Victoria (LexisNexis, online) and Civil Procedure Victoria [I 63.01.0]ff.
In relation to the assessment and taxation of costs, see comments regarding the Costs Court above.
See also SCGCPR O 62, Re Credit Clear Ltd [2021] VSC 287 and Colmax Glass Pty Ltd v Polytrade
Pty Ltd [2013] VSC 311 in relation to security f or costs.

17 ENFORCEMENT OF JUDGMENTS
17.1 Enforcement processes
Having obtained a judgment, you may need to advise your client about ways to enf orce it. You may
also advise your client on how inf ormation can be obtained about the judgment debtor’s f inancial
circumstances.
Your client may have obtained judgment f or payment of money or other relief . The orders included in
the judgment determine the mechanisms available f or its enf orcement.

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In relation to a judgment f or the payment of money (excluding payments into court), SCGCPR
r 66.02(1) provides:
(1) A judgment for the payment of money not within paragraph (2) may be enforced by one or more of the
following means—
(a) warrant of seizure and sale;
(b) attachment of debts under Order 71;
(c) attachment of earnings under Order 72;
(d) charging order under Order 73;
(e) appointment of a receiver under Order 74; and
(f) where Rule 66.05 applies, and subject to Rule 66.10—
(i) committal; and
(ii) sequestration.
See O 68, which sets out the rules regarding warrants of execution generally (including the
requirements f or an application f or the grant of a warrant and other particulars relating to the issue of
a warrant).

17.2 Examination
Order 67 of the SCGCPR permits examination of a judgment debtor in the Supreme Court as discovery
in aid of enf orcement. A similar procedure exists in the County and Magistrates’ Courts. On application
by summons f rom the judgment creditor, a judgment debtor can be ordered to:
• attend bef ore the court and be orally examined on material questions; and
• produce any document or thing in their possession, custody or power relating to the material
questions.
See r 67.02(1) and Civil Procedure Victoria [I 67.01.0] (Scope of order).

17.3 Attachment of debt/attachment of earnings

A judgment creditor may apply to the court by summons f or an attachment of debt. This is a process
that allows a debt payable by a third person to the judgment debtor to be applied in or toward
satisf action of the judgment creditor’s debt: SCGCPR r 71.02.
A judgment creditor may apply by summons f or an attachment of earnings order pursuant to r 72.02.
Subject to receipt of the judgment debtor’s statement of f inancial situation (Form 72C) or an
examination, the judgment debtor must be lef t with a minimum of 80% of their net income per pay
period intact and unaf f ected by the order: r 72.05(4). The remaining 20% of their income can be the
subject of an order, but how much of that 20% the judgment creditor will ultimately have attached is at
the court’s discretion (having regard to the needs and living expenses of the judgment debtor). See
O 72 generally.

17.4 Warrants of execution

In the Supreme Court, there are three types of warrants of execution. All are addressed to the sheriff,
who is an of f icer of the court. The three types of warrant are:
• warrant of seizure and sale – which seeks seizure and sale of goods, chattels and property,
including land: SCGCPR r 66.02 and O 69;
• warrant of possession – which seeks possession of land: r 66.03 and O 70; and
• warrant f or delivery – which requires the delivery of goods or the recovery of their assessed
value: r 66.04.

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18 APPEALS
18.1 Types of appeals
The Court of Appeal hears and determines appeals against decisions made by a single judge of the
Supreme Court, the County Court, some Victorian Civil and Administrative Tribunal matters and some
decisions made by associate judges: SCA s 10. Order 64 of the SCGCPR governs the process
of appeals.
There are two types of appeals in the Supreme Court:
• appeals as of right; and
• appeals by leave of the Court of Appeal.
There is a general requirement that appeals bef ore the Court of Appeal f irst require leave to appeal.
Section 14A of the SCA requires that the Court of Appeal grant leave in any civil appeal except as
specif ied in s 14A(2) (see also SCGCPR r 64.20). Under s 14A(2), leave to appeal is not required for
an appeal f rom a ref usal to grant habeas corpus, f or an appeal under the Serious Sex Offenders Act
2018 (Vic) or if the SCGCPR provide that leave to appeal is not required, whether in any particular
class of application or proceeding or generally.
Section 17A of the SCA sets out other matters that are not subject to appeal to the Court of Appeal
except by leave of the Court of Appeal. For criminal matters, leave to appeal is required in all cases of
appeal against conviction or sentence: Criminal Procedure Act 2009 (Vic) ss 274, 278 and 283.

18.2 Lodgment of appeals or leave to appeal

The SCGCPR provide f or the preparation and f iling of appropriate documents by both parties bef ore
the hearing of the appeal: SCGCPR O 64. Deadlines f or the completion of tasks in the Court of Appeal
are strictly enf orced and f ailure to meet some deadlines can result in the dismissal of an appeal or
leave to appeal.
Under r 64.02(1), you commence an appeal to the Court of Appeal by f iling:
(a) a notice of appeal in accordance with Form 64A;
(b) a written case; and
(c) any additional document required by any applicable practice note.
Rule 64.03(1) sets out the documents you must file to start the leave to appeal process and they mirror
the documents required under r 64.02(1).
The notice of appeal or application f or leave to appeal must contain all inf ormation required under
r 64.04. Among other things, the appellant’s written case must set out detailed contentions and
supporting papers. It must be specif ic and concise, and there is a page limit that must be complied
with: see Practice Note SC CA 3 Civil Appeals.
An application f or leave to appeal (or, where leave to appeal is not required, a notice of appeal) and
other required documents must be f iled within 28 days af ter the date of the decision that is sought to
be appealed or within such f urther time as the Court of Appeal or the Registry may allow: r 64.05 (see
also SCA s 14B(1) f or civil appeals and Criminal Procedure Act 2009 (Vic) ss 275(1), 279(1) and
284(1)). There are strict time requirements f or respondents to f ile reply papers: SCGCPR r 64.11.
For civil leave to appeals, the Court of Appeal will grant leave only if it is satisf ied that the appeal has
a real prospect of success: SCA s 14C. Importantly, the Court of Appeal may determine a civil leave
to appeal with or without an oral hearing of the parties: SCA s 14D(1). Theref ore, it is imperative that
you caref ully prepare appeal documents so that you clearly and succinctly articulate the grounds of
appeal and arguments in support.

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For civil appeals, lawyers should read SCGCPR O 64, SCA Pt 2 Div 2 and Practice Note SC CA 3
Civil Appeals.

18.3 Effect of lodgment of an appeal

The institution of an appeal does not in itself act as a stay of execution: SCGCPR r 64.39(a). The court
may stay execution of a judgment: rr 66.14 and 66.16.

19 COMMON APPLICATIONS
19.1 Commencing common applications
Due to the varied nature of Supreme Court practice, it is usef ul to look at some of the more common
applications under various Acts made to the Supreme Court. These actions are generally commenced
by originating motion: SCGCPR r 4.05(1)(b).

19.2 Administration and Probate Act 1958

Under the powers granted to the court under the Administration and Probate Act 1958 (Vic), the
Supreme Court can:
• grant probate of a will and letters of administration in respect of intestacy;
• construe ambiguous provisions of a will;
• decide on contested wills, challenged because of their f orm or the testator’s testamentary capacity;
and
• grant f oreign probates and letters of administration.
See Supreme Court (Administration and Probate) Rules 2014 (Vic) and Practice Note SC CL 6 Trusts,
Equity and Probate List f or more details about the Supreme Court’s powers under the Administration
and Probate Act 1958 (Vic).
Note that all grants issued af ter 1 July 2020 are issued electronically, with paper applications no longer
accepted, as RedCrest-Probate enables electronic f iling of all applications f or probate and
administration.

19.3 Transfer of Land Act 1958 and Property Law Act 1958
There are a number of applications that can be brought under the Transfer of Land Act 1958 (Vic) and
the Property Law Act 1958 (Vic):
• modif ication of restrictive covenants: Property Law Act 1958 (Vic) s 84;
• removal of caveat: Transfer of Land Act 1958 (Vic) s 90(3); and
• recovery of deposit money, compensation claims under a contract of sale: Property Law Act
1958 (Vic) s 49.

19.4 Trustee Act 1958

Under the Trustee Act 1958 (Vic), you can apply to the Supreme Court to:
• appoint a new trustee: s 41;
• make vesting orders: s 51;
• empower trustees to enter into advantageous dealings where the trust instrument does not allow
it. Similarly, it can permit trustees to sell property, postpone the sale of property or carry on a
business where it is not otherwise possible within the terms of the trust: s 63; and
• vary trusts: s 63A.

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19.5 Corporations Act 2001 (Cth)

The court has power to wind up companies, appoint receivers and liquidators and deal with all other
applications relating to companies pursuant to the Corporations Act. Ref er to the Supreme Court
(Corporations) Rules 2023 (Vic) and SCGCPR O 73.

19.6 Adoption Act 1984

Under Adoption Act 1984 (Vic) s 6, all applications f or an adoption order can be heard in the Supreme
Court or the County Court at the option of the applicant.

19.7 Appeals from other courts and tribunals

As the Supreme Court is a superior court of record, it has the power to supervise inf erior courts. It does
this through the process of hearing appeals f rom those other courts and tribunals.
Section 10 of the SCA provides that the Supreme Court hears appeals f rom a single judge of the
County Court, as does County Court Act 1958 (Vic) s 74.
Acts that establish tribunals also state that appeals lie to the Supreme Court. These include the
Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Generally, the appeals f rom such courts and tribunals only approach to the Supreme Court on
questions of law.

20 CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES

ACT 2006
Pursuant to s 33 of the Charter, a party may apply to ref er to the Supreme Court on a question of law
that relates to the application of the Charter or to the interpretation of a statutory provision in
accordance with the Charter.
Order 23 of SCMCPR applies to ref erral of a question pursuant to s 33. A plaintif f implements the
ref erral by f iling an originating motion in SCMCPR Form 2-23A. The plaintif f must also f ile a summons
f or directions in Form 2-23B returnable bef ore an associate judge. The originating motion and
summons must be served on each def endant within 7 days.
If an application is made to the Supreme Court pursuant to s 33 (or if a question of law arises that
relates to the application of the Charter or a question with respect to the interpretation of a statutory
provision in accordance with the Charter in the case of a County Court or Supreme Court proceeding),
a party to the proceeding must give notice in the prescribed form to the Victorian Attorney-General and
the Victorian Equal Opportunity and Human Rights Commission. The Charter of Human Rights and
Responsibilities (General) Regulations 2017 (Vic) specif ies the prescribed f orm. A copy is also
available in the schedule to Supreme Court Practice Note SC Gen 14 Notification of Matters under the
Charter of Human Rights and Responsibilities Act 2006, which applies to such applications.
Practice Note SC Gen 14 states:
5.1 Practitioners are expected to assess at the commencement of a proceeding, or upon receiving
instructions to act for a party to a proceeding, whether notice pursuant to s 35 is required.
It also states:
4.8 Compliance with the requirements of this Practice Note will be taken into account, where relevant,
in relation to the question of costs.
Lawyers must exercise care when making such applications.

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21 LOCATION OF USEFUL INFORMATION

Usef ul inf ormation is available on the Supreme Court of Victoria website, and in Civil Procedure
Victoria, which contains:
• practice notes issued f rom time to time by the Supreme Court – these can be highly relevant and
usef ul in respect of the practice and procedure in the various lists of the Supreme Court;
• relevant parts of judgments of the Supreme Court dealing with practice and procedure, which are
usef ul in helping to understand the principles behind some of the rules of the court;
• all the prescribed f orms of the court (which you can use as pro f ormas) and the rules they relate
to; and
• precedents and procedural tables, which can be of assistance to newly admitted lawyers.

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APPENDICES
APPENDIX 1 – SIMPLE FORM OF RELEASE

FORM OF RELEASE
[where no proceedings commenced]

DATE

PARTIES

[Name and Address] in the State of Victoria (“Releasor”)

AND

[Name and Address] in the State of Victoria (“Releasee”)

AGREEMENT
1. In consideration of payment by Releasee of [amount in words] ([amount in $ figures]) to Releasor, paid
solely to avoid the expense and inconvenience of litigation and with a denial of liability and in FULL
satisfaction of any claim [detail of the claim sufficient to cover all causes of action which may arise from
the matter].
2. I/We Releasor do hereby release and forever discharge Releasee from any claim for damages, interest
and costs whatsoever arising from or connected with the claim [amend as appropriate to the
circumstances of the matter].
3. And I/We Releasor further agree to indemnify and forever hold harmless Releasee from any claims,
actions, suits or demands lodged against them by any person who may claim to have an interest in, or
to have suffered loss and/or damage in connection with the claim [amend as appropriate to the
circumstances of the matter].

Signed at ____________________________________________ in the State of Victoria

Releasee ____________________________________________
Witness ____________________________________________
Releasor ____________________________________________
Witness ____________________________________________

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APPENDIX 2 – TERMS OF SETTLEMENT

IN THE SUPREME COURT

OF VICTORIA

AT MELBOURNE

COMMERCIAL COURT No CI-__-____

BETWEEN:

AB PLAINTIFF

-and-

CD DEFENDANT

TERMS OF SETTLEMENT
1. The Plaintiff and Defendant consent to the following orders being made by the Supreme Court of Victoria in
proceeding No C1 12-XXXXX (‘the Proceeding’);
a. The Proceeding be struck out with a right of reinstatement.
b. There be no order as to costs.
2. The Defendant shall pay to the Plaintiff the sum of $#### (‘the Settlement Sum’) in full and final settlement
of any claims the Plaintiff may have against the Defendant in relation to the Proceeding, inclusive of interest
and costs.
3. The Defendant shall pay the Settlement Sum by bank cheque or immediately available funds:
a. Care of [solicitors]
b. On or before [date]
4. In the event that the Settlement Sum is not paid by 4pm on [date] in the manner specified in clause 3, the
Plaintiff shall be entitled, without notice to the Defendant to:
a. Have the Proceeding reinstated; and
b. Obtain judgment against the Defendant for the sum of [$ agreed amount – usually an amount higher
than the settlement sum] and in the event of the Plaintiff so doing the Defendant consents to these
terms of settlement being produced to the Court by the Plaintiff as evidence of the defendant’s
consent to:
i. The Plaintiff applying to have the Proceeding reinstated in this Court;
ii. The Plaintiff moving for and having judgment entered in the proceeding for the sum of [$ agreed
amount]
5. Subject to and conditional upon the Defendant complying with the obligations imposed upon it by clause 3,
the Plaintiff hereby releases and forever discharges the Defendant from and against any and all claims,
actions, suits, demands, causes of action, liabilities and costs whatsoever which the Plaintiff may have
against the Defendant arising out of or in respect of the claims made in the Proceeding.
6. These terms remain confidential to the parties, save to their legal, financial and accounting advisers or
otherwise as required by law.
7. These terms contain the entire agreement and understanding between the Plaintiff and the Defendant as to
the subject of these terms.

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8. Other than in proceedings taken to enforce these terms of settlement, these terms of settlement may be
pleaded as a bar to any action or proceeding mentioned in clause 5 upon satisfaction of the conditions under
clause 3.
9. The parties shall bear their own costs in relation to these terms of settlement.

Dated the day of 20xx

Signed on behalf of the Plaintiff by

Witness

Signed on behalf of the defendant by

Witness

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