Supreme Court (General Civil Procedure) Rules 2015FILE/15-103sr.docx · Web viewmeans make an affidavit of ... a copy of the originating process is served on the defendant in accordance

Supreme Court (General Civil Procedure) Rules 2015

Endnotes


S.R. No. 103/2015


S.R. No. 103/2015

table of provisions

RulePage

i

Order 1Preliminary1

Part 1Citation, commencement and revocation1

1.01Title and object1

1.02Authorising provisions1

1.03Commencement and revocation1

Part 2Application of Rules2

1.04Definitions2

1.05Application2

1.06Jurisdiction not affected2

1.12Order to review3

Part 3Interpretation3

1.13Definitions3

Part 4Miscellaneous6

1.14Exercise of power6

1.14.1Exercise of powers of Registrar by Associate Judge6

1.15Procedure wanting or in doubt7

1.16Act by corporation7

1.17Corporation a party7

1.18Power to act by solicitor8

1.19Continuation of address for service8

Order 2Non-compliance with the Rules9

2.01Effect of non-compliance9

2.02Originating process9

2.03Application to set aside for irregularity9

2.04Dispensing with compliance10

Order 3Time, sittings and Court office11

3.01Calculating time11

3.02Extension and abridgement11

3.03Fixing time12

3.04Process in vacation12

3.05Time for service12

3.06Proceedings after a year12

3.07Sittings and vacation13

3.08Office13

3.09Office hours13

Order 4Process in the Court14

Part 1General14

4.01How proceeding commenced14

4.02Interlocutory application14

4.03Names of parties14

4.04When writ required15

4.05When originating motion required15

4.06Optional commencement by originating motion15

4.07Continuance as writ of proceeding by originating motion16

4.08Urgent case16

Part 2Certification requirements for proceedings17

4.09Overarching obligations certification17

4.09.1Certification of prior overarching obligations certification17

4.10Proper basis certification17

Order 5Content, filing and duration of originating process18

5.01Definitions18

5.02Form of originating process18

5.03Appearance18

5.04Indorsement of claim on writ19

5.05Indorsement of claim on motion19

5.06Indorsement as to capacity19

5.07Address of parties19

5.08Place and mode of trial20

5.09Stay on payment of costs20

5.10Petition21

5.11Filing of originating process21

5.12Duration and renewal of originating process23

Order 6Service25

6.01When personal service necessary25

6.02Personal service of originating process25

6.03How personal service effected25

6.04Service on particular defendants26

6.05Motor car death or bodily injury27

6.06Address for service27

6.06.1Solicitor changing address28

6.07How ordinary service effected28

6.08Identity of person served31

6.09Acceptance of service by solicitor31

6.10Substituted service31

6.11Confirmation of informal service32

6.12Service by filing32

6.13Service on agent32

6.14Service under contract33

6.15Recovery of vacant land33

6.16Service of notice by the Court34

6.17Affidavit of service34

Order 7Service out of Australia36

Part 1When service out is allowed36

7.01For what claims36

7.02Indorsement on originating process38

7.03Mode of service out of Australia39

7.04Leave to proceed where no appearance39

7.05Stay, setting aside service etc.40

7.06Service of other process by leave40

7.07Service of counterclaim or third party notice41

7.08Application for leave41

Part 2Service in foreign country42

7.09Application42

7.10Documents required42

7.11Translation43

7.12Request and undertaking43

7.13Procedure on lodgment and filing44

7.14Evidence of service44

7.15Order for payment of expenses45

Order 7ATrans-Tasman proceedings46

7A.01Definitions46

7A.02Application of Order46

7A.03Commencement of proceeding for order under Trans-Tasman Proceedings Act47

7A.04Interlocutory application under Trans-Tasman Proceedings Act47

7A.05Application for interim relief47

7A.06Application for leave to serve subpoena in New Zealand48

7A.07Form of subpoena49

7A.08Application to set aside subpoena50

7A.09Application for issue of certificate of noncompliance with subpoena50

7A.10Form of certificate of non-compliance51

7A.11Notice of registration of NZ judgment51

7A.12Application for extension of time to give notice of registration of NZ judgment51

7A.13Application to set aside registration of NZjudgment52

7A.14Application for stay of enforcement of registered NZjudgment to enable liable person to appeal52

7A.15Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal53

7A.16Application for order for use of audio link or audiovisual link53

Order 8Appearance54

8.01Application54

8.02Appearance before taking step54

8.03Who to file appearance54

8.04Time for appearance54

8.05Mode of filing appearance55

8.06Address for service of defendant55

8.07Late appearance56

8.08Conditional appearance57

8.09Setting aside writ or originating motion57

Order 9Joinder of claims and parties58

9.01Joinder of claims58

9.02Permissive joinder of parties58

9.03Joinder of necessary parties58

9.04Joinder inconvenient59

9.05Effect of misjoinder or non-joinder of party60

9.06Addition, removal, substitution of party60

9.07Procedure for addition of party60

9.08Defendant dead at commencement of proceeding61

9.09Change of party on death, bankruptcy63

9.10Failure to proceed after death of party64

9.11Amendment of proceedings after change of party65

9.12Consolidation or trial together66

9.13Conduct of proceeding67

Order 10Counterclaim68

10.01Application of Order68

10.02When counterclaim allowed68

10.03Counterclaim against plaintiff and another person68

10.04Procedure after counterclaim against another person68

10.05Trial of counterclaim70

10.06Counterclaim inconvenient70

10.07Stay of claim70

10.08Counterclaim on stay etc., of original proceeding70

10.09Judgment for balance71

Order 11Third party procedure72

11.01Claim by third party notice72

11.02Statement of claim on third party notice72

11.03Time for appearance72

11.04Filing and service of third party notice73

11.05Time for third party notice73

11.06Leave to file third party notice74

11.07Other requirements for service74

11.08Appearance by third party75

11.09Defence of third party75

11.10Counterclaim by third party76

11.11Default by third party76

11.12Discovery and trial77

11.13Third party directions78

11.14Judgment between defendant and third party79

11.15Claim against another party79

11.16Fourth and subsequent parties80

11.17Counterclaim80

Order 12Interpleader81

12.01Definitions81

12.02Stakeholder's interpleader81

12.03Sheriff's interpleader82

12.04Sheriff's summons to state claim82

12.05Notice to execution creditor83

12.06Admission of claim83

12.07Interpleader summons84

12.08Powers of Court84

12.09Default by claimant85

12.10Neutrality of applicant86

12.11Order in several proceedings86

12.12Trial of interpleader question87

Order 13Pleadings88

13.01Formal requirements88

13.02Content of pleading88

13.03Document or conversation89

13.04Fact presumed true89

13.05Condition precedent89

13.06Implied contract or relation89

13.07Matter which must be pleaded89

13.08Subsequent fact90

13.09Inconsistent pleading90

13.10Particulars of pleading90

13.11Order for particulars92

13.12Admission and denials92

13.13Denial by joinder of issue93

13.14Money claim as defence93

13.15Counterclaim94

Order 14Service of pleadings95

14.01Statement of claim indorsed on writ95

14.02Statement of claim not indorsed on writ95

14.03Alteration of claim as indorsed on writ95

14.04Service of defence95

14.05Reply96

14.06Pleading after reply96

14.07Defence to counterclaim96

14.08Close of pleadings96

14.09Order as to pleadings97

14.10Filing of pleadings97

Order 15Persons under disability98

15.01Definitions98

15.02Litigation guardian of person under disability98

15.03Appointment of litigation guardian98

15.04No appearance by person under disability100

15.05Application to discharge or vary certain orders100

15.06Pleading admission by person under disability100

15.07Discovery100

15.08Compromise of claim by a person under disability101

15.09Execution against money in court102

15.10Counterclaim and claim by third party notice103

Order 16Executors, administrators andtrustees104

16.01Representation of unascertained persons104

16.02Beneficiaries105

16.03Deceased person106

Order 17Partners and sole proprietors107

17.01Partners107

17.02Disclosure of partners107

17.03Service of originating process108

17.04Appearance by partners108

17.05No appearance except by partners109

17.06Appearance under objection of person sued as partner109

17.07Enforcement of judgment110

17.08Enforcement between partners111

17.09Attachment of debts111

17.10Person using the business name111

17.11Charge on partner's interest112

Order 18Representative proceeding113

18.01Application113

18.02Proceeding by or against representative113

18.03Order for representation by defendant113

18.04Effect of judgment113

Order 18AGroup proceeding115

18A.01Application115

18A.02Consent to be group member115

18A.04Opting out115

18A.05Order involving notice115

Order 19Notice of constitutional matter116

19.01Definitions116

19.02Notice116

19.03Filing and service116

Order 20Change of solicitor118

20.01Notice of change118

20.02Party appointing solicitor118

20.03Solicitor ceasing to act118

20.04Removal of solicitor from record119

20.05Address for service120

20.06Death, retirement etc., of Victorian Government Solicitor121

Order 21Judgment in default of appearance or pleading122

21.01Default of appearance122

21.02Default of defence122

21.03Judgment for recovery of debt, damages or property123

21.04Judgment other than for recovery of debt, damages or property124

21.05Proceeding continued against other defendants125

21.06Default of defence to counterclaim125

21.07Setting aside judgment125

Order 22Summary judgment126

Part 1General126

22.01Scope of Order126

22.02Interpretation126

Part 2Application by plaintiff for summary judgment126

22.03Application by plaintiff for judgment126

22.04Summons and affidavit in support126

22.05Defendant to show cause127

22.06Affidavit in reply128

22.07Cross-examination on affidavit128

22.08Hearing of application128

22.09Assessment of damages129

22.10Judgment where debt amount unascertained129

22.11Directions130

22.12Continuing for other claim or against other defendant130

22.13Judgment for delivery up of chattel130

22.14Relief against forfeiture131


Part 3Application by defendant for summary judgment131

22.16Application by defendant for judgment131

22.17Summons131

22.18Affidavit in support131

22.19Plaintiff to show cause132

22.20Affidavit in reply132

22.21Cross-examination on affidavit133

22.22Hearing of application133


Part 4Application by or against third or subsequent party134

22.24Third or subsequent party134

Order 23Summary stay or dismissal of claim and striking out pleading135

23.01Stay or judgment in proceeding135

23.02Striking out pleading135

23.04Affidavit evidence136

23.05Declaratory judgment136

Order 24Judgment on failure to prosecute or obey order for particulars or discovery137

24.01Judgment on dismissal137

24.02Failure to obey order137

24.03Stay on non-payment of costs138

24.04Counterclaim and third party claim138

24.05Inherent jurisdiction138


Order 25Discontinuance and withdrawal140

25.01Withdrawal of appearance140

25.02Discontinuance or withdrawal of proceeding or claim140

25.03Proceeding not commenced by writ141

25.04Notice of discontinuance or withdrawal141

25.05Costs141

25.06Discontinuance or withdrawal no defence142

25.07Stay on non-payment of costs142

Order 26Offers of compromise and offers to compromise on appeal143


26.01Definitions143

Part 2Offers of compromise143

26.02Offers of compromise generally143

26.03Time for making, accepting etc. offer144

26.03.1Time for payment145

26.04Effect of offer145

26.05Disclosure of offer to Court146

26.06Party under disability146

26.07Withdrawal of acceptance146

26.07.1Failure to comply with accepted offer147

26.07.2Multiple defendants147

26.08Costs consequences of failure to accept148

26.08.1Pre-litigation offers151

26.10Contributor parties151

26.11Transitional152

Part 3Offer to compromise on appeal152

26.12Appeal to Court of Appeal152

Order 27Content and form of Courtdocuments154

27.01Conformity with Rules154

27.02Heading and title of document154

27.03Form of document155

27.04Numbers157

27.05Copies on request158

27.06Prothonotary refusing to seal or accept document158

27.07Scandalous matter159

Order 28Filing and sealing of Courtdocuments160

Part 1General160

28.00Application of this Part160

28.01How document filed160

28.02Proceedings commenced outside Melbourne160

28.03Date of filing161

28.04Seal of Court161

28.05Inspection of documents162

28.06Production of Court document163

Part 2Electronic filing other than in RedCrest163

28.07Application of Part163

28.08Definitions163

28.09Authorised provider may make documents available163

28.10Prothonotary may accept a document for filing164

28.11Prothonotary may reject a document165

28.12Authorised user may make copies165

28.13Documents that may not be filed electronically165

28.14Evidence of filing166

28.15Production of original document166

28.16Retention of original documents166

28.17Authorised provider167

Order 28AElectronic filing in RedCrest168

28A.01Application of this Order168

28A.02Definitions168

28A.03Exclusive method of filing168

28A.04How document filed168

28A.05Time of filing170

28A.06Non-compliance with Rules and documents that may be set aside etc.171

28A.07Seal of the Court171

28A.08Signatures on documents172

28A.09Production of original document172

28A.10Retention of original signed document172

28A.11Authentication of judgments and orders in RedCrest173

28A.12Access to RedCrest174

28A.13Limited access174

28A.14Refusal to issue and cancellation of username and password175

28A.15Review by Court of access to RedCrest176

28A.16Order for electronic service176

28A.17Confidentiality and privacy176

Order 29Discovery and inspection of documents177

29.01Application and definition177

29.01.1Scope of discovery177

29.02Notice for discovery178

29.03Discovery after notice178

29.04Affidavit of documents179

29.05Order limiting discovery180

29.05.1Order for general discovery180

29.05.2Order for expanded discovery180

29.06Co-defendants and third party180

29.07Order for discovery181

29.08Order for particular discovery181

29.09Inspection of documents referred to in affidavit of documents182

29.10Inspection of documents referred to in pleadings and affidavits183

29.11Order for discovery184

29.12Direction as to documents185

29.12.1Default notice186

29.13Inspection of document by Court187

29.14Default on discovery187

29.15Continuing obligation to make discovery187

29.16Discovery after directions188

29.17Transitional provisionSupreme Court (Chapter I Amendment No.18) Rules2010188

Order 30Interrogatories189

30.01Definitions189

30.02When interrogatories allowed189

30.03Statement as to who to answer189

30.04Filing interrogatories and time for answers190

30.05Source for answers to interrogatories190

30.06How interrogatories to be answered192

30.07Ground of objection to answer192

30.08Who to answer interrogatories193

30.09Failure to answer interrogatories194

30.09.1Default notice194

30.10Non-compliance with order195

30.11Answers as evidence195

30.12Interrogatories after directions196

Order 31Discovery by oral examination197

31.01Definitions197

31.02When available197

31.03Party a corporation197

31.04How consent given198

31.05Effect of consent198

31.06Appointment of examiner198

31.07Attendance on examination199

31.08Party a corporation199

31.09Powers of examiner199

31.10Record of examination199

31.11How party to be examined200

31.12Procedure on objection to question201

31.13Order to answer question201

31.14Costs201

Order 32Preliminary discovery and discovery from non-party202

32.01Definitions202

32.02Privilege202

32.03Discovery to identify a defendant202

32.04Party an applicant203

32.05Discovery from prospective defendant203

32.06Party an applicant204

32.07Discovery from non-party204

32.08Procedure205

32.09Inspection of documents205

32.10Directions as to documents205

32.11Costs206

Order 33Medical examination and service of hospital and medical reports207

33.01Application207

33.02Counterclaim207

33.03Definitions207

33.04Notice for examination209

33.05Expenses209

33.06Report of examination of plaintiff210

33.07Service of reports by plaintiff210

33.08Service of reports by defendant211

33.08.1Other medical reports to be served212

33.09Opinion on liability212

33.10Material for Court213

33.11Medical report admissible213

33.12No evidence unless disclosed in report215

Order 34Directions216

34.01Powers of Court216

34.02Nature of directions216

34.03Admissions and agreements216

34.04Duty to obtain directions217

Order 35Admissions218

35.01Definition218

35.02Voluntary admission of facts218

35.03Notice for admission of facts218

35.04Judgment on admissions219

35.05Notice for admission of documents219

35.06Cost of non-admission of fact or document220

35.07Restrictive effect of admission220

35.08Notice to produce documents220

Order 36Amendment221

36.01General221

36.02Failure to amend within time limited222

36.03Amendment of writ or other originating process before service and disallowance of amendment222

36.04Amendment of pleading and disallowance of amendment223

36.05How pleading amendment made224

36.06Pleading to an amended pleading224

36.07Amendment of judgment or order225

Order 37Inspection, detention and preservation of property226

37.01Inspection, detention etc. of property226

37.02Inspection from prospective defendant227

37.03Procedure228

37.04Disposal of perishable property229

37.05Payment into Court in discharge of lien229

37.06Interim distribution of property or income229

37.07Jurisdiction of Court not affected230

Order 37AFreezing orders231

37A.01Definitions231

37A.02Freezing order231

37A.03Ancillary order232

37A.04Respondent need not be party to proceeding233

37A.05Order against judgment debtor or prospective judgment debtor or third party233

37A.06Jurisdiction of Court not limited235

37A.07Service235

37A.08Costs236

37A.09Application to be heard by Judge of the Court236

Order 37BSearch orders237

37B.01Definitions237

37B.02Search order237

37B.03Requirements for grant of search order237

37B.04Jurisdiction of Court not limited239

37B.05Terms of search order240

37B.06Independent solicitors241

37B.07Costs241

37B.08Service242

37B.09Application to be heard by Judge of the Court242

Order 38Injunctions243

38.01When Court may grant243

38.02Application before trial243

38.03Costs and expenses of non-party243

38.04Ouster of office243

Order 39Receivers245

39.01Application and definitions245

39.02Appointment of receiver245

39.03Service of order245

39.04Consent of receiver245

39.05Security by receiver246

39.06Remuneration of receiver246

39.07Receiver's accounts246

39.08Default by receiver247

39.09Directions to receivers248

Order 40Evidence generally249

40.01Definition249

40.02Evidence of witness249

40.03Contrary direction as to evidence249

40.04Examination on affidavit250

40.05Evidence of particular facts250

40.06Revocation or variation of order251

40.07Deposition as evidence251

40.08Proof of Court documents252

40.09Evidence of consent252

40.10Defamation253

40.11Subsequent use of evidence at trial253

40.12Attendance and production253

40.13View254

Order 41Evidence before trial255

Part 1Evidence by deposition255

41.01Order for witness examination255

41.02Documents for examiner255

41.03Appointment for examination255

41.04Conduct of examination256

41.05Examination of additional persons256

41.06Objection257

41.07Taking of depositions257

41.08Authentication and filing258

41.08.1Confidentiality of deposition259

41.09Report of examiner259

41.10Default of witness259

41.11Witness allowance260

41.12Perpetuation of testimony260

41.13Letter of request260

41.14Translation261

41.15Undertaking262

41.16Order for payment of expenses262

Part 2Applications for taking evidence abroad under Part 2 of the Foreign Evidence Act 1994 of the Commonwealth263

41.17Definition263

41.18Application263

41.19How application made263

41.20Directions263

41.21Notice of application263

Order 41AApplication to use audio visual link or audio link264

41A.01Application of Order264

41A.02Form of application264

41A.03Filing264

41A.04Service264

41A.05Duty of applicant264

41A.06Payment of costs264

Order 42Subpoenas265

42.01Definitions265

42.02Issuing of subpoena265

42.03Form of subpoena266

42.03.1Alteration of date for attendance or production267

42.04Setting aside or other relief268

42.05Service268

42.06Compliance with subpoena268

42.07Production otherwise than upon attendance270

42.08Removal, return, inspection, copying and disposal of documents and things270

42.09Inspection of, and dealing with, documents and things produced otherwise than on attendance270

42.10Disposal of documents and things produced272

42.11Costs and expenses of compliance273

42.12Failure to comply with subpoenacontempt of court274

42.13Documents and things in the custody of a court274

Order 42ASubpoena for production to Prothonotary276

42A.01Application276

42A.02Issuing subpoena276

42A.03Form of subpoena276

42A.04Affidavit of service276

42A.05Compliance with subpoena277

42A.06Receipt for document277

42A.07Objection by addressee or other person277

42A.08Objection by party to inspection by other party278

42A.09Procedure after objection278

42A.10Inspection of document produced278

42A.11Removal of document279

42A.12Return of document279

42A.13Production of document at trial280

42A.14Subpoena for trial not affected280

Order 43Affidavits281

43.01Form of affidavit281

43.02Affidavit by illiterate or blind person282

43.03Content of affidavit282

43.04Affidavit by two or more deponents282

43.05Alterations283

43.06Annexures and exhibits283

43.07Time for swearing284

43.08Irregularity284

43.09Filing284

Order 44Expert evidence285

44.01Definitions285


44.03Report of expert285

44.04Other party's report as evidence287

44.05No evidence unless disclosed in report288

44.06Conference between experts288

Order 45Originating motion289

45.01Definitions289

45.02Evidence by affidavit289

45.03Judgment where no appearance289

45.04Proceedings after appearance290

45.05Special procedure290

Order 46Applications293


46.02Application by summons293


46.04Form and filing of summons293

46.05Service294

46.05.1Day for hearing294

46.06Adjournment295

46.07Absence of party to summons295

46.08Setting aside296

Order 47Place and mode of trial297

47.01Place of trial297

47.02Mode of trial297

47.03Payment of jury fees297

47.04Separate trial of question298

47.05Judgment after determination of preliminary question299

Order 48Fixing a date for trial300

48.01Application300

48.02Fixing a date300

48.03Notice of trial300

48.04Default by plaintiff300

48.04.1Payment of setting down fees301

48.05Subsequent interlocutory steps301

48.06Vacating date for trial302

48.07Pre-trial conferences302

Order 49Trial304

49.01Order of evidence and addresses304

49.02Absence of party305

49.03Adjournment of trial306

49.04Death before judgment306

Order 50References307

50.01Reference to special referee307

50.02Directions as to procedure307

50.03Report on reference308

50.04Use of report308

50.05Committal308

50.06Remuneration of special referee309

50.07Reference to mediator309

50.07.1Mediation by Associate Judge310

50.07.2Mediation by Costs Registrars311

50.07.3Mediation by Prothonotary or Deputy Prothonotary311

50.07.4Mediation by judicial registrar312

50.08Reference to arbitration312

Order 51Assessment of damages or value314

51.01Mode of assessment314

51.02Notice to other party314

51.03Procedure on assessment314

51.04Order for damages314

51.05Default judgment against some defendants315

51.06Continuing cause of action315

51.07Value of goods315

Order 52Accounts and inquiries316

52.01Account or inquiry at any stage316

52.02Directions for account316

52.03Form and verification of account317

52.04Filing and service of account317

52.05Notice of charge, error in account317

52.06Allowances317

52.07Delay318

52.08Fund distribution before all entitled ascertained318

52.09Restrictive covenant318

Order 53Summary proceeding for recovery of land319


53.02Originating process319

53.03Who to be defendant319


53.05Service320

53.06Occupier made a party320

53.07Judgment for possession321

53.08Warrant of possession321

Order 54Administration of estates and execution of trusts322

54.01Definitions322

54.02Relief without general administration322

54.03Parties323

54.04Notice of proceeding and judgment324

54.05Relief in proceeding by originating motion324

54.06Judgment in administration proceeding325

54.07Conduct of sale326

Order 55Sale of land by order of Court327

55.01Definition327

55.02Power to order sale327


55.04Manner of sale327

55.05Certifying result of sale328

55.06Mortgage, exchange or partition329

Order 56Judicial review330

56.01Judgment or order instead of writ330

56.02Time for commencement of proceeding331

Order 57Habeas corpus332

57.01Definition332

57.02Application for writ332

57.03Order on application333

57.04Further application for writ333

57.05Service333

57.06Disobedience334

57.07Return to the writ334

57.08Person detained before Court334

57.09Other habeas corpus335

57.10Departing debtor335

Order 58Appeals from lower jurisdictions336

Part 1Appeals from the County Court336

58.01Procedure336

Part 2Appeals from an associate judge of the County Court336

58.02Appeal from associate judge of the County Court by leave336

58.03Application for leave336

58.04Hearing of appeal337

58.05Stay338

Part 3Appeals on a question of law338


58.07Commencement of appeal338

58.08Notice of appeal338

58.09Appellant to file affidavit339

58.10Directions340

58.11Leave to appeal341

58.12Stay341

58.13Expedition342

58.14Report342

Part 4Appeals under section 271 of, or clause13or 18 of Schedule 1 to, the Children, Youthand Families Act 2005342


58.18Institution of appeal342


58.20Hearing343

58.21Stay343

Part 5Appeals under section 328 of the Children, Youth and Families Act 2005344


58.23Definitions344

58.24Notice of appeal and undertaking to prosecute344

58.25Solicitor to notify that he or she acts344

58.26Prothonotary to fix hearing344

58.27Abandonment of appeal345

58.30Application to set aside order striking out appeal for failure toappear345

Part 7Appeals under Part 7 of the Coroners Act2008345

58.33Definitions345

58.34Commencement of appeal346

58.35Notice of appeal346

58.36Appeal out of time taken to be application for leave to appeal347

58.37Appellant to file affidavit347

58.38Certain appeals do not require directions348

58.39Directions348

58.40Expedition349

58.41Report from Coroners Court350

Order 59Judgments and orders351

59.01General relief351

59.02Date of effect351

59.03Time for compliance351

59.04Statement of reasons for judgment352

59.05Notice of judgment to non-party352

59.06Consent judgment or order by filing353

59.07Consent to judgment or order by parties not in attendance356

59.08Powers of Prothonotary356

Order 60Authentication and filing of judgments and orders358

60.01When authentication required358

60.02Mode of authentication358

60.03Drawing up of judgment or order359

60.05Recitals in judgments and orders359

60.06Drawing up and settling360

60.07Copy of judgment or order361

60.08Form of judgment or order361


Order 61Judgment debt instalment order362

61.01Definitions362

61.02Application under section 6 or 8362

61.03Instalment agreement under section 7364

61.04Summons for oral examination of judgment debtor365

61.05Notice of instalment order confirmed, varied or cancelled366

61.06Order for imprisonment366

61.07Certificate of payment366

61.08Notices366

Order 62Security for costs368

62.01Definitions368

62.02When security for costs may be ordered368

62.03Manner of giving security369

62.04Failure to give security369

62.05Variation or setting aside369

Order 63Costs370

Part 1Preliminary370

63.01Definitions and application370

63.01.1Taxing of costs in proceedings in County Court, Magistrates' Court and VCAT372

63.02General powers of Court372

63.03Time for costs order and payment372

63.04Costs of question or part of proceeding373

63.05By whom costs to be taxed373

63.06Officers of Court to assist each other373

63.07Taxed or other costs provision374

63.08Default judgment374

63.09Costs in other court or tribunal375

63.10No order for taxation required375

63.11Enforcement of order of Costs Court376

63.12Costs in account376

Part 2Entitlement to costs376

63.13Order for payment376

63.14Extension or abridgement of time376

63.15Discontinuance or withdrawal376

63.16Offer of compromise377

63.16.1Failure to make discovery or answer interrogatories377

63.17Amendment377

63.18Non-admission of fact or document377

63.19Interlocutory injunction377

63.20Interlocutory application378

63.20.1Taxation of costs on interlocutory application or hearing378

63.21Inquiry as to ownership of property378

63.22Costs reserved378

63.23Costs liability of lawyer378

63.24Money claim in wrong court380

63.25Other claim in wrong court381

63.26Trustee or mortgagee381

Part 3Costs of party in a proceeding382

63.27Application382

63.28Bases of taxation382

63.30Standard basis382

63.30.1Indemnity basis382

63.31Usual basis of taxation382

63.34Charges of legal practitioner383

Part 4Costs Court383

63.35Powers of Costs Court383

63.36Costs of taxation383

Part 5Procedure on taxation384

63.37Application384

63.38Summons for taxation385

63.39Filing of bill386

63.40Service of bill386

63.41Defendant not appearing386

63.42Content of bill of costs386

63.43Disbursement or fee not paid387

63.44Charge of legal practitioner for work done out of Victoria387

63.45Amendment of bill388

63.46Agreement as to part of bill388

63.47Objection to bill388

63.48Discretionary costs389

63.49Taxation where no objection389

63.50Attendance of parties390

63.51Reference to Judge of the Court390

63.52Notice to person interested in fund390

63.53Application by person liable to pay391

63.54Solicitor at fault391

63.55Cross costs392

63.56Order on taxation392

63.56.1Reconsideration of order of Costs Judge393

63.56.2Reconsideration or review by Costs Court constituted by judicial registrar394

63.56.3Costs Judge may exercise powers under Rule63.56.2396

63.56.4Review by Costs Judge of judicial registrar decisions397

63.57Review by Judge of the Court398

Part 6Costs of a solicitor400

63.58Application400

63.59Basis of taxation of costs payable by client400

63.60Taxation between solicitor and client400

63.61Basis of taxation of costs payable otherwise than by client401

63.62Contentious business401

63.63Procedure on taxation402

63.64Appointment to tax402

63.65Reference for taxation402

63.66Inclusion in bill of disbursement not made403

63.67Failure to serve bill or tax403

Part 7Allowances on taxation generally404

63.68Application404

63.70Unnecessary or careless work404

63.71Gross sum for costs404

63.72Increase or decrease of amounts in Scales405

63.73Copy documents405

63.74Folio405

63.75Service of several documents405

63.76Defendants with same solicitor405

63.77Procuring evidence406

63.78Negotiations406

63.79Conference406

63.80Retainer of counsel406

63.81Advice and other work of counsel406

63.82Hearing and trial fees407

63.83Premature brief408

63.85Bill reduced by 15 per cent408

Part 8Alternative assessment procedure408

63.86Application of this Part408

63.87Notice of estimate and filing of bill408

63.88Estimate409

63.89Withdrawal of objection409

Order 64Appeals and applications to the Court of Appeal411

64.01Definitions411

64.02Commencement of appeal by filing notice of appeal412

64.03Applications, including for leave to appeal412

64.04Contents of application for leave to appeal or notice of appeal413

64.05Time for filing application for leave to appeal or notice of appeal414

64.06Service of applications, notices of appeal and related documents415

64.07Time for service of application, including for leave to appeal, or notice of appeal416

64.08Extension of time to file or serve application, including for leave to appeal, or notice of appeal417

64.09Service on non-party419

64.10Application for leave to intervene419

64.11Documents to be filed and served in response to application, including for leave to appeal, or appeal420

64.12Amendment of application for leave to appeal or notice of appeal or written case422

64.13Further evidence in application for leave to appeal or appeal423

64.14Determination of applications424

64.15Procedure for determination of application by single Judge of Appeal424

64.16Procedure for determination of application when referred to Court of Appeal constituted by two or more Judges of Appeal426

64.17Finality of dismissal of application for leave to appeal after oral hearing426

64.18Application to set aside or vary dismissal of application for leave to appeal427

64.19Application for leave to appeal may be treated as appeal428

64.20No notice of appeal or other initiating or responding documents required if leave to appeal granted428

64.21Management of applications and appeals429

64.22Settling contents of application book and appeal book429

64.23Costs of compliance with directions430

64.24Notes for guidance431

64.25Delivery of leave application book and appeal book431

64.26Costs of leave application book and appeal book432

64.27Referral of applications to Court of Appeal432

64.28Registrar may vacate hearing date or refer for dismissal433

64.29Discontinuance of application or appeal434

64.30Cross-appeal435

64.31Cross-application for leave to appeal436

64.32Notice of contention437

64.33Notice of objection to competency of appeal or application438

64.34Effect of cross-application for leave to appeal, crossappeal and notice of contention439

64.35Time440

64.36Powers of the Court of Appeal440

64.37New trial442

64.38Costs443

64.39Stay of execution444

64.40Jurisdiction and powers exercisable by a single Judge of Appeal444

64.41Jurisdiction and powers exercisable by two Judges of Appeal445

64.42Powers of and directions given by Associate Judges and Registrar445

64.43Further powers of Registrar447

64.44Exercise of powers and functions of the Court of Appeal by Associate Judge or Registrar449

64.45Application or appeal taken to be abandoned449

64.46Dismissal for want of prosecution or non-compliance450

64.47Expedition451

Order 65453

Order 66Enforcement of judgments andorders454

66.01Definitions454

66.02Payment of money454

66.03Possession of land455

66.04Delivery of goods455

66.05Doing or abstaining from doing any act456

66.06Attendance of natural person457

66.07Attendance of corporation458

66.08Attendance before another court etc.458

66.09Contempt458

66.10Service before committal or sequestration459

66.11Substituted performance460

66.12Enforcement by or against non-party461

66.13Non-performance of condition461

66.14Matters occurring after judgment461

66.15Order in aid of enforcement461

66.16Stay of execution462

Order 67Discovery in aid of enforcement463

67.01Definitions463

67.02Order for examination or production463

67.03Corporation464

67.04Procedure464

67.05Conduct money464

67.06Record of examination464

Order 68Warrants of execution generally465

68.01Definitions465

68.02Leave to issue warrant465

68.03Separate execution for costs466

68.04Issue of warrant of execution467

68.05Duration468

68.06Costs of prior execution469

68.07Provision for enforcing payment of money469

68.08Form of warrant of execution469

Order 69Warrant of seizure and sale470

69.01Definitions470

69.02New enforcement process470

69.03Two or more warrants470

69.04Order of sale470

69.05Time, place and mode of sale471

69.06Advertisement of sale471

69.07Notional possession of goods473

Order 70Warrant of possession474

70.01Payment of money474

70.02Removal of goods on warrant of possession474

Order 71Attachment of debts475

71.01Definitions and application475

71.02What debts attachable475

71.03Bank account476

71.04Filing and service of garnishee summons477

71.05Evidence on application for garnishee summons477

71.06Garnishee summons478

71.07Service of summons479

71.08What debts attached, when and to what extent479

71.09Payment to judgment creditor480

71.10Dispute of liability by garnishee481

71.11Claim by other person481

71.12Discharge of garnishee481

71.13Money in court482

71.14Costs482

Order 72Attachment of earnings483

72.01Definitions483

72.02Application for attachment of earnings order485

72.03Making of order486

72.04Attendance of or information about judgment debtor486

72.05Contents of order488

72.06Service of order490

72.07Employer to make payments490

72.08Attachment of earnings in place of other orders491

72.09Execution after attachment of earnings492

72.10Discharge or variation of order492

72.11Cessation of attachment of earnings order492

72.12Two or more orders in force493

72.13When varied order taken to be made494

72.14Notice to judgment debtor of payments494

72.15Determination of earnings494

72.16Service495

Order 73Charging orders and stop orders and notices496

73.01Definitions496

73.02Order charging securities497

73.03Filing and service of charging summons497

73.04Evidence on application for charging summons497

73.05Charging summons498

73.06Service of summons498

73.07Effect of service of summons499

73.08Order on summons hearing499

73.09Effect and enforcement of charge500

73.10Variation or discharge of order500

73.11Order charging funds in court500

73.12Stop order for funds in court500

73.13Stop notice on corporation stock not in court501

73.14Effect of stop notice502

73.15Withdrawal or discharge of stop notice503

73.16Prohibition of transfer of or payment on stock503

Order 74Enforcement by appointment of receiver504

74.01Procedure504

74.02Appointment of receiver by way of equitable execution504

Order 75Contempt505


75.01Definition505

Part 2Summary proceedings for contempt505

75.02Contempt in face of the Court505

75.03Procedure on hearing of charge506

75.04Custody pending disposal of charge506

Part 3Other procedure for contempt506

75.05Application506

75.06Procedure507

75.07Application by Prothonotary507

75.08Arrest of respondent507

75.08.1Arrest pending contempt hearing508

Part 4Committal and costs510

75.10Application510

75.11Punishment for contempt510

75.12Discharge510

75.13Warrant for committal510

75.14Costs510

Order 76Sequestration511

76.01Definitions511

76.02Enforcement by sequestration511

76.03Order for sequestration511

76.04Application512

Order 77Authority of Associate Judges513

77.01Authority513

77.02Limitations on authority515

77.03Associate Judge to hear application516

77.04Reference by Associate Judge to Judge of the Court517

77.05Reference by Judge of the Court to Associate Judge517

77.06Appeals to Trial Division constituted by Judge of the Court518

77.06.1Bringing an appeal518

77.06.2Time for notice of appeal518

77.06.3Contents of notice of appeal519

77.06.4Service of notice of appeal520

77.06.5Filing of notice of appeal and list520

77.06.6Stay521

77.06.7Cross-appeal521

77.06.8Notice of contention522

77.06.9Powers of Judge of the Court hearing appeal522

77.07Appeal to the Court of Appeal523

77.08Associate Judge may act for another524

Order 78Proceedings under judgment525

78.01Definition525

78.02Directions in judgment525

78.03Claims526

78.04Interest on debts527

78.05Interest on legacies528

78.06Account or inquiry by Associate Judge528

78.07Associate Judge's order529

78.08Appeal from Associate Judge529

Order 79Funds in Court530


79.01Definitions530

Part 2General530

79.02Application of money530

79.03Money in court for person under disability531

79.04Payment into court for person under disability531

79.05Certificate of receipt532

79.06Delay532

Part 3Common funds533

79.07Investments in name of Senior Master533

79.08Transfer533

79.09Interest533

Part 4Proceeding in another court534

79.10Proceeding in another court534

Part 5Authority of the judicial registrar535

79.11References to Senior Master include other Associate Judges535

79.12Authority535

79.13Reference by Senior Master to the judicial registrar535

79.14Powers535

79.15Reference by the judicial registrar to Senior Master536

79.16Appeals536

Order 80Service under the Hague Convention538

Part 1Preliminary538

80.01Definitions538

80.02Provisions of this Order to prevail541

Part 2Service abroad of local judicial documents541


80.04Application for request for service abroad541

80.05How application to be dealt with543

80.06Procedure on receipt of certificate of service544

80.07Payment of costs546

80.08Evidence of service546

Part 3Default judgment following service abroad of initiating process547


80.10Restriction on power to enter default judgment if certificate of service filed547

80.11Restriction on power to enter default judgment if certificate of service not filed548

80.12Setting aside judgment in default of appearance549

Part 4Local service of foreign judicial documents550


80.14Certain documents to be referred back to the Attorney-General's Department of the Commonwealth551

80.15Service552

80.16Affidavit as to service553

Order 81Obtaining evidence for external court or tribunal555

81.01Procedure555

81.02Examiner555

81.03Conduct of examination556

81.04Attendance of non-party556

81.05Deposition and exhibits556

81.06Certificate557

Order 82Procedure under the Open Courts Act 2013558

82.01Definitions558

82.02Notice of application for suppression order558

Order 83Procedure under the Vexatious Proceedings Act 2014559

83.01Definitions559

83.02Application for leave to proceed under limited litigation restraint order559

83.03Application for leave to proceed under extended litigation restraint order559

83.04Application for leave to proceed under general litigation restraint order559

83.05Notice of application for leave to proceed560

83.06Application for leave to apply for variation or revocation of litigation restraint order560

83.07Application to vary or revoke litigation restraint order560

83.08Notice of application to vary or revoke litigation restraint order560

83.09Application for leave to appeal under Part10 of Vexatious Proceedings Act 2014561

83.10Notice of application for leave to appeal562

Order 84Authority of judicial registrars564


84.02Authority of judicial registrars564

84.03Reference by Judge of the Court to judicial registrar566

84.04Reference by Associate Judge to judicial registrar566

84.05Appeal from determination by a judicial registrar567

84.06Filing of notice of appeal568

84.07Contents of notice of appeal569

84.08Service of notice of appeal569

84.09Extension of time570

84.10Evidence571

84.11Appeal incompetent571

84.12Appeal does not operate as stay571

84.13Judicial registrar may act for another571

Form 4AOverarching obligations certification572

Form 4ABCertification of prior overarching obligations certification573

Form 4BProper basis certification574

Form 5AWrit575

Form 5BOriginating motion between parties578

Form 5COriginating motion between parties581

Form 5DOriginating motion582

Form 5EOriginating motion for recovery of land under Order53583

Form 5FOriginating processRedCrest586

Form 7ALetter of request for service of document594

Form 7AASubpoena to give evidence (NewZealand)595

Form 7ABSubpoena to produce documents (New Zealand)601

Form 7ACSubpoena to give evidence and produce documents (New Zealand)610

Form 7ADCertificate of non-compliance with subpoena (NewZealand)619

Form 8ANotice of appearance621

Form 8ABNotice of appearanceRedCrest622

Form 8ACNotice of conditional appearanceRedCrest624

Form 8BNotice of conditional appearance626

Form 10AHeading and notice on counterclaim where defendant new party627

Form 10BNotice of appearance to counterclaim629

Form 11AThird party notice630

Form 11BNotice by one tortfeasor claiming contribution against another633

Form 11CThird party noticeRedCrest634

Form 12ANotice of claim to goods taken in execution640

Form 15AOrder approving compromise of claim of minor641

Form 15BOrder approving compromise of claim under Part III of Wrongs Act for benefit of minor643

Form 18AANotice of consent to be a group member645

Form 18ABNotice of opting out by group member646

Form 19ANotice of a constitutional matter647

Form 28AFiling confirmation notice648

Form 29ANotice for discovery649

Form 29BAffidavit of documents650

Form 29CNotice to produce652

Form 29DNotice of default in making discovery of documents653

Form 30ANotice of default in answering interrogatories654

Form 35ANotice to admit655

Form 35BNotice of dispute656

Form 37AAFreezing order657

Form 37BASearch order665

Form 39ADeed of guarantee679

Form 41AOrder for examination within Victoria680

Form 41BOrder for examination out of Victoria681

Form 41COrder for letter of request to judicial authority out of Victoria682

Form 41DLetter of request for examination of witness683

Form 41AANotice of application for audio visual link or audio link685

Form 42ASubpoena687

Form 42BNotice to addressee and declaration692

Form 42AASubpoena for production to Prothonotary694

Form 43ACertificate identifying exhibit699

Form 44AExpert witness code of conduct700

Form 45ASummons on originating motionproceedings after appearance702

Form 45BSummons on originating motionspecial procedure703

Form 46ASummons704

Form 48ANotice of trial705

Form 48BNotice of trial706

Form 53AJudgment in summary proceeding for recovery of land707

Form 53BWarrant of possession in summary proceeding for recovery of land708

Form 57AWrit of habeas corpus709

Form 58ANotice of appeal710

Form 58BNotice of appeal and undertaking to prosecute711

Form 58DNotice of abandonment of appeal713

Form 58GApplication to set aside order striking out appeal for failure to appear714

Form 59ANotice of judgment716

Form 60AGeneral form of judgment given717

Form 60BGeneral form of judgment entered718

Form 60CGeneral form of order719

Form 60DJudgment at trial by Judge without a jury720

Form 60EJudgment at trial by Judge with a jury721

Form 60FJudgment or Order at trial of preliminary question722

Form 60GDefault judgment for debt723

Form 60HDefault judgment for recovery of land724

Form 60JInterlocutory or interlocutory and final judgment for damages in default725

Form 60KFinal judgment for damages or value in default726

Form 60LInterlocutory or interlocutory and final judgment for detention of goods in default727

Form 61AApplication for order for payment of judgment debt by instalments728

Form 61BApplication for order in substitution for order for payment of judgment debt by instalments729

Form 61CApplication to the Court for variation or cancellation of order for payment of judgment debt by instalments731

Form 61DOrder relating to payment of judgment debt by instalments733

Form 61ENotice of order or refusal of order for payment of judgment debt by instalments734

Form 61FNotice of objection735

Form 61GNotice of hearing of objection736

Form 61HNotice by Court relating to payment of judgment debt by instalments737

Form 61JInstalment agreement739

Form 61KOrder for instalment payment of judgment debt after agreement740

Form 61LNotice of order for instalment payment of judgment debt after agreement741

Form 61MSummons to attend for oral examination742

Form 61NWarrant of apprehension on disobedience to summons743

Form 61PNotice to judgment creditor of summons or warrant to judgment debtor744

Form 61QNotice by Court of confirmation, variation or cancellation of judgment debt instalment order745

Form 61RCertificate of payment746

Form 63ASummons for taxation of costs747

Form 64AApplication for leave to appeal/notice of appeal/cross-application for leave to appeal/notice of cross-appeal748

Form 64BApplication other than for leave to appeal or to cross-appeal751

Form 64CList of persons served753

Form 64DNotice of opposition to application other than for leave to appeal755

Form 64ENotice of intention not to respond or contest757

Form 64FApplication to have dismissal of application for leave set aside or varied759

Form 64GNotice of contention761

Form 64HNotice of objection to competency763

Form 68AWarrant of seizure and sale765

Form 68BWarrant of possession767

Form 68CWarrant of delivery768

Form 69AAdvertisement of sale by the sheriff770

Form 71AGarnishee summons771

Form 71BGarnishee order773

Form 71CGarnishee order774

Form 72AAttachment of earning summons775

Form 72BAffidavit in support of application for attachment of earnings order776

Form 72CJudgment debtor's statement of financial situation777

Form 72DSummons for an order to attend for examination or furnish particulars781

Form 72EAffidavit in support of summons for an order to attend for examination or furnish particulars782

Form 72FOrder that judgment debtor attend or give statement783

Form 72GOrder that person indebted to or employer of judgment debtor give statement784

Form 72HAttachment of earnings order785

Form 72JNotice to employer787

Form 72KNotice by employer that judgment debtor is not in employer's employ789

Form 72LNotice of cessation of attachment of earnings order790

Form 73ACharging summons791

Form 73BAffidavit as to stock792

Form 73CNotice as to stock793

Form 75AArrest warrant in summary proceedings for contempt in face of Supreme Court794

Form 75BArrest warrant in contempt proceedings by summons or originating motion795

Form 75BAArrest warrant pending contempt hearing796

Form 75CCommittal warrant797

Form 77ANotice of address for service798

Form 80ARequest for service abroad of judicial documents and certificate799

Form 80BSummary of the document to be served802

Form 82ANotice of application for suppression order804

Form 83AApplication for leave to make or continue interlocutory application in proceeding by person subject to limited litigation restraint order805

Form 83BApplication for leave to continue proceeding by person subject to extended litigation restraint order807

Form 83CApplication for leave to commence proceeding by person subject to extended litigation restraint order809

Form 83DApplication for leave to continue proceeding by person subject to general litigation restraint order811

Form 83EApplication for leave to commence proceeding by person subject to general litigation restraint order813

Form 83FNotice of application for leave to proceed815

Form 83GApplication for leave to apply to vary or revoke litigation restraint order816

Form 83HApplication to vary or revoke litigation restraint order817

Form 83INotice of application to vary or revoke litigation restraint order818

Form 83JApplication for leave to appeal on question of law819

Form 83KNotice of application for leave to appeal on a question of law821

Form 84ANotice of address for service822

Appendix ASupreme Court Scale of Costs823

Appendix BSupreme Court witnesses' expenses and interpreters' allowances831

Schedule 1Revoked Statutory Rules833

Endnotes838

RulePage

v

statutory rules 2015

S.R. No. 103/2015

Schedule 1Revoked Statutory Rules


S.R. No. 103/2015

1

836

Supreme Court Act 1986


The Judges of the Supreme Court make the following Rules:

Order 1PreliminaryPart 1Citation, commencement and revocation

1.01Title and object

(1)These Rules constitute Chapter I of the Rules of the Supreme Court and are entitled the Supreme Court (General Civil Procedure) Rules 2015.

(2)The object of these Rules is to re-make the general rules of procedure in civil proceedings to constitute a new Chapter I of the Rules of the Supreme Court.

1.02Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

1.03Commencement and revocation

(1)These Rules come into operation on 23 November 2015.

(2)The Rules listed in Schedule 1 are revoked.

Part 2Application of Rules

1.04Definitions

In this Part

commencement date means 23 November 2015;

former Rules means the Supreme Court (GeneralCivil Procedure) Rules 2005;

pending proceeding means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied.

1.05Application

(1)Subject to this Rule and to any transitional or other provision in these Rules to the contrary, these Rules apply to every civil proceeding commenced in the Court whether before, on or after the commencement date.

(2)These Rules do not apply to a civil proceeding to which any other Chapter of the Rules of the Supreme Court applies except as that Chapter provides.

(3)The revocation of the former Rules does not affect anything done or omitted to be done in a pending proceeding and, except as provided in this Part, anything so done or omitted is taken to have been done or omitted under these Rules.

1.06Jurisdiction not affected

Nothing in these Rules shall limit the jurisdiction, power or authority which the Court had immediately before the commencement date.

1.071.11*****

1.12Order to review

(1)Unless the Court otherwise orders, subject to paragraph (2), these Rules apply, with any necessary modification, to an order for review under the Administrative Law Act 1978.

(2)A proceeding of a kind referred to in paragraph(1) shall not be commenced by writ or originating motion.

Part 3Interpretation

1.13Definitions

(1)In these Rules, unless the context or subject matter otherwise requires

Act includes any Act passed by the Parliament of the Commonwealth;

Australia has the meaning ascribed by the Service and Execution of Process Act 1992 of the Commonwealth;

bank means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;

bodily injury includes any impairment of mental condition or disease;

Convention, other than in Order 80, means a Convention with a foreign country, made with or made and extended to the Commonwealth of Australia or the State of Victoria, with respect to legal proceedings in civil or criminal matters;

Convention country, other than in Order 80, means a foreign country to which a Convention applies;

corporation means any body corporate, whether formed within or out of Victoria;

defendant includes respondent;

discovery includes discovery and inspection of documents and discovery by written interrogatories or oral examination, and make discovery of documents means make an affidavit of documents complying with the requirements of these Rules, file the affidavit and serve a copy on the party or person entitled to the discovery;

judgment given means a judgment given by the Court at the trial of a proceeding or on the hearing of an application in a proceeding;

officer, in relation to a corporation, means director, secretary, receiver, receiver and manager, official manager, liquidator and trustee administering a compromise or arrangement made between the corporation and another person or persons;

order made means an order made by the Court at the trial of a proceeding or on the hearing of an application in a proceeding;

originating process means any process by which a proceeding is commenced, and includes a third party notice and, where a counterclaim is made against a person not previously a party to the proceeding in which the counterclaim is made, the counterclaim;

pleading includes an indorsement of claim on a writ which constitutes a statement of claim, and includes particulars of any pleading;

proceeding means any matter in the Court commenced by writ or originating motion or as otherwise provided by or under any Act or these Rules;

Prothonotary, in relation to a proceeding commenced in an office of the Court outside Melbourne, means the Deputy Prothonotary at that office;

question means any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest;

RedCrest means the electronic case management system known as "RedCrest" as in operation in the Court from time to time;

Registrar means the Registrar of the Court of Appeal and, if the duties and functions of the Registrar of the Court of Appeal are being carried out by an Associate Judge, means that Associate Judge;

sheriff includes

(a)the sheriff employed under section 6 of the Sheriff Act 2009; and

(b)any person to whom a warrant referred to in these Rules is directed;

the Act means the Supreme Court Act 1986.

(2)In these Rules, unless the context or subject matter otherwise requires

(a)a reference to a Judge of the Court is a reference to the Court constituted by a Judge of the Court;

(b)a reference to an Associate Judge is a reference to the Court constituted by an Associate Judge;

(c)a reference to a judicial registrar is a reference to the Court constituted by a judicial registrar;

(d)a reference to the Costs Court is a reference to

(i)the Costs Court constituted by a Costs Judge or by a judicial registrar; and

(ii)the exercise of a power of the Costs Court by a judicial registrar, Costs Registrar or a Deputy Costs Registrar.

(3)Where these Rules prescribe a form for use, that form shall be used with any necessary variation or modification.

Part 4Miscellaneous

1.14Exercise of power

(1)In exercising any power under these Rules the Court

(a)shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;

(b)may give any direction or impose any term or condition it thinks fit.

(2)The Court may exercise any power under these Rules

(a)of its own motion; or

(b)on the application of a party or of any person who has a sufficient interest.

1.14.1Exercise of powers of Registrar by Associate Judge

Any Associate Judge may exercise any power or authority conferred on the Registrar by or under these Rules.

1.15Procedure wanting or in doubt

(1)Where the manner or form of the procedure

(a)for commencing, or for taking any step, in a proceeding; or

(b)by which the jurisdiction, power or authority of the Court is exercisable

is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court shall determine what procedure is to be adopted and may give directions.

(2)An act done in accordance with a determination or direction under paragraph (1) is regular and sufficient.

(3)An application for directions with respect to the commencement of a proceeding shall be made by originating motion in which no person is named as defendant and an application for directions with respect to a proceeding already commenced shall be made by summons.

1.16Act by corporation

Where the Court makes an order that a corporation do any act, it may order that the act be done by the corporation by its appropriate officer.

1.17Corporation a party

(1)Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.

(2)If a corporation a party to a proceeding in the Court changes its name it shall

(a)file written notice of the change of name with the Prothonotary; and

(b)serve a copy of that notice on all other parties to the proceeding.

(3)The notice shall

(a)bear the title of the proceeding showing the name of the corporation before the change; and

(b)specify the new name of the corporation and the date on which the name was changed.

(4)After a corporation has filed a notice of change of name, the corporation shall be given its new name in all documents filed in the proceeding followed by the phrase "(formerly [old name])".

1.18Power to act by solicitor

Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party's solicitor.

1.19Continuation of address for service

Subject to these Rules, where in relation to a proceeding a party has an address for service under these Rules, that is the address for service of the party until the conclusion of the proceeding, whether at first instance or on appeal.

Order 2Non-compliance with the Rules

2.01Effect of non-compliance

(1)A failure to comply with these Rules is an irregularity and does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity.

(2)Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may

(a)set aside the proceeding, either wholly or in part;

(b)set aside any step taken in the proceeding, or any document, judgment or order in the proceeding;

(c)exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.

2.02Originating process

The Court shall not wholly set aside any proceeding or the originating process by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process.

2.03Application to set aside for irregularity

The Court shall not set aside any proceeding or any step taken in any proceeding or any document, judgment or order in any proceeding on the ground of a failure to which Rule 2.01 applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.

2.04Dispensing with compliance

(1)The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

(2)Without limiting paragraph (1), the Registrar may dispense with compliance with any of the requirements of Order 64, either before or after the occasion for compliance arises.

Order 3Time, sittings and Court office

3.01Calculating time

(1)Any period of time fixed by these Rules or by any judgment or order or by any document in any proceeding shall be calculated in accordance with this Rule.

(2)Where a time of one day or longer is to begin on, or to be calculated from, a day or event, the day or the day of the event shall be excluded.

(3)Where a time of one day or longer is to end on, or to be calculated to, a day or event, the day or the day of the event shall be included.

(4)Where a period of five days or less would include a day on which the office of the Court is closed, that day shall be excluded.

(5)Where the last day for doing any act at the office of the Court is a day on which the office is closed, the act may be done on the next day the office is open.

3.02Extension and abridgement

(1)The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.

(2)The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.

(3)Unless the Court otherwise orders, any time fixed by these Rules or by any order fixing, extending or abridging time may be extended by consent without an order of the Court.

3.03Fixing time

Where no time is fixed by these Rules or by any judgment or order for doing any act in a proceeding, the Court may fix a time.

3.04Process in vacation

(1)In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the Court otherwise orders.

(2)Where the Court makes an order under paragraph(1), the party on whose application the order was made shall serve a copy of the order

(a)in the case of an order with respect to the time for appearance to originating process, with the originating process;

(b)in any other case, on every other party forthwith.

3.05Time for service

(1)In this Rule document does not include originating process.

(2)In calculating the time fixed by these Rules or by any order fixing, extending or abridging time any document which is served after 4.00 p.m. or on any day the office of the Court is closed shall be taken to have been served on the next day the office is open.

3.06Proceedings after a year

Where a year or more has elapsed since any party has taken any step in a proceeding, any party desiring the proceeding to continue shall give to every other party not less than one month's notice in writing of that party's desire.

3.07Sittings and vacation

The sittings and vacations of the Court shall be held at such times as the Judges of the Court shall direct.

3.08Office

The office of the Court shall be open on every day of the year except

(a)Saturdays and Sundays;

(b)the Tuesday following Easter; and

(c)every day duly appointed as a general public holiday.

3.09Office hours

The hours of the office of the Court are from 9.30a.m. to 4.00 p.m.

Order 4Process in the CourtPart 1General

4.01How proceeding commenced

Except where otherwise provided by or under any Act or these Rules a proceeding in the Court shall be commenced by writ or by originating motion.

4.02Interlocutory application

An interlocutory or other application in a proceeding made on notice to any person shall be by summons.

4.03Names of parties

(1)Except as provided by this Rule, a person who commences a proceeding shall be called a plaintiff and a person against whom a proceeding is commenced shall be called a defendant.

(2)A person who commences a proceeding under Rule 32.03, 32.05, 37.02 or 75.06(3) shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent.

(3)A person who commences a proceeding referred to in Rule 1.12 shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent.

(4)A person who appeals shall be called an appellant and any other party to the appeal shall be called a respondent.

(5)Where any appellant or respondent on an appeal is a party to a proceeding, the appellant or respondent shall be so identified in any document in the appeal by the expression "(Plaintiff)", "(Defendant)", "(Applicant)" or other description of party after the word "Appellant" or "Respondent" in the title of the document.

4.04When writ required

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

(2)For the purposes of these Rules, an originating process filed or to be filed in RedCrest which contains an indorsement of claim in accordance with Rule 5.04(2) is deemed to be a writ.

4.05When originating motion required

(1)A 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.

(2)For the purposes of these Rules, an originating process filed or to be filed in RedCrest which does not contain an indorsement of claim in accordance with Rule 5.04(2) but contains an indorsement in accordance with Rule 5.05 is deemed to be an originating motion.

4.06Optional commencement by originating motion

A 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.

4.07Continuance as writ of proceeding by originating motion

(1)Where a proceeding in which there is a defendant is commenced by originating motion, but ought by or under any Act or these Rules to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ

(a)the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavits already filed in the proceeding shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof or that pleadings be served between the parties, and that the parties have discovery of each other; and

(b)by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed.

(2)Any reference in these Rules to a proceeding commenced by writ shall, unless the context otherwise requires, be taken to include a reference to a proceeding in respect of which an order has been made under paragraph (1).

4.08Urgent case

In an urgent case, on the application of a person who intends to commence a proceeding and upon that person's undertaking to commence the proceeding within such time as the Court directs, the Court may make any order which the Court might make if the applicant had commenced the proceeding and the application were made in the proceeding.

Part 2Certification requirements for proceedings

4.09Overarching obligations certification

For the purposes of section 41(2) of the Civil Procedure Act 2010, the overarching obligations certification shall be in Form 4A.

4.09.1Certification of prior overarching obligations certification

(1)For the purposes of section 41(5)(a)(i) of the Civil Procedure Act 2010, the specified period is the period of two years prior to the date of the certification under section 41(5)(b) of that Act.

(2)For the purposes of section 41(5)(b) of the Civil Procedure Act 2010, the certification by a legal practitioner as to prior overarching obligations certification in relation to a party referred to in section 41(5)(a) of that Act shall be in Form 4AB.

4.10Proper basis certification

(1)For the purposes of section 42(1C) of the Civil Procedure Act 2010, processes in the Court for the registration or enforcement of judgments are exempt from the proper basis certification requirements under the Civil Procedure Act 2010.

(2)For the purposes of section 42(2) of the Civil Procedure Act 2010, the proper basis certification shall be in Form 4B.

Order 5Content, filing and duration of originating process

5.01Definitions

In this Order

originating process means writ, originating motion or other process by which a proceeding is commenced;

writ does not include writ of habeas corpus.

5.02Form of originating process

(1)A writ shall be in Form 5A.

(2)An originating motion shall be in Form 5B, 5C, 5D or 5E, whichever is appropriate.

(3)An originating process filed or to be filed in RedCrest shall be in Form 5F.

5.03Appearance

(1)A writ and, unless there is no defendant, an originating motion shall be indorsed with a statement to the effect that, if the defendant does not file an appearance within the time stated in the originating process, the plaintiff may obtain judgment against the defendant without further notice.

(2)Except as provided in paragraph (3), the time for appearance to be stated in the originating process shall be as provided by Rule 8.04.

(3)An originating motion under Order 53 which names a defendant shall state that the defendant may file an appearance on or before the day specified in the originating motion for application to the Associate Judge.

5.04Indorsement of claim on writ

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

(2)The indorsement 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 indorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed "Statement of Claim".

5.05Indorsement of claim on motion

An originating motion shall specify

(a)the relief or remedy sought and the Act, if any, under which the claim is made; and

(b)where it includes any question to be answered, the question shall be stated.

5.06Indorsement as to capacity

Where a party sues or is sued in a representative capacity, the originating process shall be indorsed with a statement showing that capacity.

5.07Address of parties

(1)An originating process shall be indorsed with

(a)the address of the plaintiff, and, where the plaintiff sues in person and that address is outside Victoria, also an address within Victoria for service in accordance with Rule6.06;

(b)the address of any defendant;

(c)where the plaintiff sues by a solicitor, the name or firm and the business address within Victoria of the solicitor and also, if the solicitor is the agent of another, the name or firm and the business address of the principal.

(2)Where any originating process is indorsed with the name of a solicitor

(a)the solicitor shall, on request in writing by a defendant, declare in writing whether the originating process was filed by the solicitor; and

(b)if the solicitor declares in writing that the originating process was not filed by the solicitor, the Court may stay the proceeding.

5.08Place and mode of trial

(1)A writ shall be indorsed with a statement of the place and mode of trial desired.

(2)If the writ is not indorsed with a statement as to the place of trial, the plaintiff shall be taken to desire trial in Melbourne, and, if the writ is not indorsed with a statement as to the mode of trial, the plaintiff shall be taken to desire trial without a jury.

(3)The plaintiff may indorse an originating motion with a statement of the place of trial desired, and, if the originating motion is not so indorsed, the plaintiff shall be taken to desire trial in Melbourne.

5.09Stay on payment of costs

(1)Where in a proceeding commenced by writ the plaintiff claims a debt only, the writ shall be indorsed with

(a)a statement of the amount of the debt and the amount claimed for costs; and

(b)a statement that the proceeding will come to an end if, within the time limited for filing an appearance, the defendant pays the amounts so claimed to the plaintiff or the plaintiff's solicitor.

(2)Where a writ is indorsed in accordance with paragraph (1), and the defendant pays the amountsclaimed within the time limited for filing an appearance, then, except as provided by paragraph(3), the proceeding shall come to an end.

(3)The defendant may, notwithstanding the payment, have the costs taxed, and, if more than one-sixth shall be disallowed, the plaintiff 's solicitor shall pay the costs of taxation.

5.10Petition

A petition shall include at the end

(a)a statement of the person intended to be served, if any; or

(b)if no person is intended to be served, a statement to that effect.

5.11Filing of originating process

(1)A proceeding shall be commenced by filing the originating process.

(1.1)An originating process is filed

(a)when the Prothonotary receives the originating process and seals and dates it; or

(b)in the case of an originating process retrievedelectronically by the Prothonotary pursuant to Part2 of Order28, when it is taken to be accepted for filing under Rule28.10(3) or (4); or

(c)in the case of a proceeding to which Order28A applies, when the originating process has been dealt with in accordance with Rule 28A.04.

(2)Subject to Rule 28A.08 (in the case of an originating process filed in RedCrest), the originating process filed shall be signed by the solicitor for the plaintiff or by the plaintiff where the plaintiff sues in person, but need not be signed by the Prothonotary.

(3)Subject to Rule 28.12, upon an originating process being filed or at any later time, the Prothonotary, on the request of the plaintiff, shall seal a sufficient number of copies of the originating process for service.

(3.1)Paragraph (3) does not apply to an originating process filed in RedCrest.

(4)Subject to paragraph(4.1), in a proceeding commenced by originating motion, where the relief or remedy sought includes the construction of any instrument other than an Act

(a)a copy of the instrument or, where it exceeds 25pages, of the relevant parts shall be lodged with the Prothonotary at the time the originating motion is filed; and

(b)if the originating motion is filed electronically pursuant to Part 2 of Order 28, that Part (with any necessary modification) shall apply for the purpose of lodging the copy.

(4.1)In a proceeding commenced by originating motion filed in RedCrest, where the relief or remedy sought includes the construction of any instrument other than an Act, a copy of the instrument or, if it exceeds 25 pages, of the relevant parts shall be filed in RedCrest together with the originating motion.

(5)If the Prothonotary's office is closed and the plaintiff produces an originating process to the Court and undertakes that the originating process will be lodged in the Prothonotary's office on the day the office is next open, or, where appropriate, undertakes that it will be uploaded into RedCrest when it is next possible to do so

(a)the Court may initial the originating process and such number of copies as are required for service; and

(b)upon such initialling the originating process shall be taken to have been filed.

5.12Duration and renewal of originating process

(1)A writ or an originating motion shall be valid for service for one year after the day it is filed.

(2)Where a writ or originating motion has not been served on a defendant, the Court may, from time to time, by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.

(3)An order may be made under paragraph (2) before or after expiry.

(4)The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard, the Court shall

(a)adjourn the further hearing; and

(b)direct the plaintiff to give notice to the defendant by summons or otherwise.

(5)Where an order is made under paragraph (2), theProthonotary shall stamp any sealed copy originating process for service with the date of the order and the extended date of validity.

Order 6Service

6.01When personal service necessary

Any document required or permitted to be served in a proceeding may be served personally, but unless personal service is required by these Rules or by order, need not be served personally.

6.02Personal service of originating process

(1)Except where otherwise provided by or under any Act or these Rules, originating process shall be served personally on each defendant.

(2)Where a defendant to any originating process files an unconditional appearance, the originating process shall be taken to have been served on the defendant personally on the day on which the appearance is filed or on such earlier day as may be proved.

6.03How personal service effected

(1)Personal service of a document is effected by

(a)leaving a copy of the document with the person to be served; or

(b)if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document.

(2)Subject to paragraph (2.1), in the case of originating process, the copy for service shall be sealed in accordance with Rule5.11 and in the case of originating process filed electronically in accordance with Part 2 of Order 28, shall have attached to it a copy of the filing confirmation notice.

(2.1)In the case of originating process filed in RedCrest under Order 28A, the copy for service shall be a copy of the originating process as sealed in accordance with Rule28A.07.

(3)To effect personal service it shall not be necessary to show the original document.

6.04Service on particular defendants

Personal service of a document may be effected by serving the document in accordance with Rule6.03, in the case of

(a)a corporation

(i)on the mayor, chairman, president or other head officer of the corporation; or

(ii)on the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation;

(b)a minor, on a parent or guardian of the minor, and, if there is none, on the person with whom the minor resides or in whose care the minor is;

(c)a handicapped person as defined in Rule15.01, on

(i)the person who, in accordance with Rule 15.03(2), would be entitled to be litigation guardian in any proceeding to which the handicapped person was party; or

(ii)if there is no such person, the person with whom the handicapped person resides or in whose care the handicapped person is;

(d)the Crown in right of the Commonwealth or the Commonwealth, on the Attorney-General of the Commonwealth or upon a person appointed by the Attorney-General to receive service in accordance with section 63 of the Judiciary Act 1903 of the Commonwealth;

(e)the Crown in right of Victoria or the State of Victoria, on the Victorian Governm