VCE Legal Studies Unit 4Area of study 2

Supreme Court civil pre-trial procedures: an

overview

By Jules Aldous, Shelford Girls’ Grammar

Chapter I Supreme Court (General Civil Procedure) Rules 2005

Chapter II Supreme Court (Miscellaneous Civil Proceedings) Rules 2008

http://www.supremecourt.vic.gov.au/home/practice+and+procedure/supreme+court+rules/

The Supreme Court Rules:

– set out the practice and procedures of the Supreme Court

– are written by Supreme Court judges

– are a guide to proceedings before the Supreme Court

Writ

4.04 When writ required

Except as provided by Rules 1.12, 4.05 and 4.06 and Order 58, every proceeding shall be commenced by writ.

4.05 When originating motion requiredA proceeding shall be commenced by originating motion—(a)where there is no defendant to the proceeding;(b)where by or under any Act an application is authorised to be made to the Court; or(c)where required by these Rules.4.06 Optional commencement by originating motionA proceeding may be commenced by originating motion where—(a)it is unlikely that there will be any substantial dispute of fact; and(b)for that reason it is appropriate that there be no pleadings or discovery.

PLEADINGS

Statement of claim (may be endorsed on writ)

Defence

Reply

Counterclaim

THE WRIT

Informs the defendant that an action is being taken against them

Where the trial will be held

The mode of trial— judge or judge and jury

Can include either a general statement as to the nature of the claim and the remedy sought or a statement of claim is attached

Endorsement of claim on writ

5.04 Endorsement of claim on writ

(1)A writ shall contain an endorsement of claim.

(2)The endorsement of claim shall be

(a)a statement of claim; or(b)a statement sufficient to give

with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.

(3) An endorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed ‘Statement of Claim’.

NOTICE OF APPEARANCE

Informs the court and the plaintiff that the defendant intends to defend the claim

If the defendant fails to file a notice of appearance within a specified time a default judgment can be made

DEFENCE14.04 Service of defence

In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence

(a) where the endorsement of a claim on a writ constitutes a statement of claim in accordance with Rule 5.04, within 30 days after filing the appearance;

(b) where the plaintiff serves a statement of claim, within 30 days after service of the statement of claim; or

(c) within such time as the Court directs.

COUNTERCLAIM

A defendant may make a claim against the plaintiff

This claim will usually be heard at the same time as the original claim

10.02 When counterclaim allowed(1) A defendant who has a claim against the plaintiff may counterclaim in the proceeding.

(2) Rule 9.01 applies to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff.

(3) A defendant who counterclaims shall plead the defendant's defence and the counterclaim in one document called a defence and counterclaim.

REPLY

This is optional—to clarify facts or issues

14.05 ReplyWhere the plaintiff is required to serve a reply, it shall be served within 30 days after service of the defence, unless the Court otherwise orders.

14.06 Pleading after replyNo pleading subsequent to reply shall be served without an order of the Court.

14.07 Defence to counterclaimWhere the defendant sets up a counterclaim in the defence, the plaintiff or any person joined as defendant to the counterclaim who is already a party to the proceeding shall serve a reply and defence to counterclaim or a defence to counterclaim within 30 days after service of the defence and counterclaim, unless the Court otherwise orders.

FURTHER AND BETTER PARTICULARS

This is optional

A request for more details in relation to the statement of claim

13.11 Order for particulars

(1) The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party's pleading or in an affidavit filed on that party's behalf ordered to stand as a pleading.

(2) The Court shall not make an order under paragraph (1) before service of the defence unless the order is necessary or desirable—(a) to enable the defendant to plead; or(b) for some other special reason.

(3) The Court may refuse to make an order under paragraph (1) if the party applying for the order did not first apply by letter for the particulars the party requires.

DISCOVERY

Disclose information so the parties are fully informed about the claim

All parties have copies of relevant documents

Assess the strength of the case

Promote an out-of-court settlement

Discovery of documents

Interrogatories

Discovery by oral examination

Medical reports

DISCOVERY OF DOCUMENTS

Can be requested by either side

Parties can be ordered to make discovery at the first directions hearing

Allows parties to assess the strength of a case

QUESTIONS RELATING TO THE FACTS OF THE CASE

Interrogatories

Oral examination

Medical reports

DIRECTIONS

May be before a judge or associate judge

May refer the parties to mediation

Set a timeline for the completion of pre-trial stages

Order 34DIRECTIONS

34.01 Powers of Court

(1) At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

DIRECTIONSHEARING

Key knowledgeKey knowledge Key skillsKey skills

Supreme Court civil pre-trial procedures, including pleadings, discovery and directions hearings and the purposes of these procedures

Define key legal terminology and use it appropriately

Describe the pre-trial procedures for the resolution of criminal cases and civil disputes and compare their relative purposes

Evaluate the extent to which court processes and procedures contribute to an effective legal system

WHAT DOES THE STUDY DESIGN SAY?VCE Legal Studies Unit 4, Area of Study 2