Week 1
Topic 1 – The System of Civil Justice
Key cases:
 Fooks v Slaytor
 Aon’s Case
Where a client may have a cause of action in law, equity or under statute, the following must be
determined:
o The court in which you will commence proceedings
o The form and method of commencing those proceedings
o The defendant to the suit you intend to initiate
o To what extent your client will be required to and should – whether as a matter of law or
strategy – outline their case to the defendant
o Time limits governing the issuance of proceedings, and whether time limits will determine the
actions your client pursues
o Your client’s position if the defendant fails to file a defence or files a defence that is not
“tenable or maintainable” – what happens then
o Venues, other than a court hearing, to resolve the dispute between the parties
o The costs implications for the parties if they win or lose
The focus of this unit will be the procedure of bring a “civil action” to court. This requires the
knowledge of the rules and practices that control the mechanisms and methodology through which
parties litigates to resolves disputes, and the policies underpinning those governing rules.
The principle document in any modern procedural system is its Procedural Rules. In Victoria the
governing rules are contained in the Supreme Court (General Civil Proceedings) Rules 2015 (Vic). The
governance of the conduct of litigation focusses on procedural law as distinct from substantive law
(eg: contract law, tort, consumer). Procedural law provides the mechanism for enforcing those rights
and duties where those rights have been transgressed, and/or there has been a defalcation or
obligations. Procedural law defines how substantive legal rights are pursued or prosecuted.
Civil procedure is “the mode of proceeding by which a legal right is enforced, as distinguished from the
law which gives or defines the right” (Poyser v Minors (1881), and is largely concerned with the pretrial processes of bringing a dispute before the court.
1. Mechanisms of Civil Procedure
The principles of Civil Procedure are mostly embodied in the Rules of the respective courts in the
judicial hierarchy – each court has rules for governing its procedure. The Supreme Court also has
inherent jurisdiction to control its own processes to ensure that these are not abused or used
frivolously, scandalously or vexatiously. When conducting a matter, it is essential to ensure that the
rules you apply are those of that court.
Inferior Courts
- Magistrates Court
- County Court
Superior Courts
-
Supreme Court
Court of Appeal
The source of the Supreme Court Rules (‘SCR’) is the Supreme Court (General Civil Proceedings) Rules
2015 (Vic).
In Victoria, s 25 of the Supreme Court Act (not rules) gives power to the supreme court judges to
make rules regarding the civil procedures in their courts. These rules are contained in the Supreme
Court (Civil Procedure) Rules 2015.
2. How do courts interpret the rules of court?
Order 1 Rule 14 of the Supreme Court Rules and Section 7 Civil Procedure Act – the court has to
attempt to resolve all issues between parties in an economical, cost effective, timely manner. You will
note from these provisions that there is a tension. On one hand, all issues have to resolved, on the
other they have to be completed in a timely manner.
3. The Adversarial Trial System: ‘The Traditional Adversary System’
The adversarial system compared to the inquisitorial system of justice in Europe. In Australia, we have
the adversarial system.
In Australia, the system of adjudicating the rights and obligations of parties to each other continues to
be largely based on the ‘adversarial trial system’. However, the enactment of the Civil Procedure Act
2010 (Vic) has varied and modulated, and in some ways, radically altered the manner, form and
substance of the conduct of proceedings.
Adversarial System (Historically)
You have two adversaries the defendant and the plaintiff. They take charge of the procedural actions.
According to the traditional adversarial system of this country it was the parties themselves who took
the procedural steps for the case to be heard and decided the timing of these steps (the pace). So, if
one party was slow, then consequently the case would drag on.
A judge according to the traditional system played no part in pre-trial procedures (unless asked for
assistance). Pre-trial steps were party controlled. The parties conducted pre-trial investigation, the
judges were passive.
The original system had problems. The costs because of the parties being in charge were extensinve
and also there were major delays in bringing forward a hearing. Writs need to be written, a defence,
notice of discovery etc, which all took time and this time was prolonged when parties were in charge.
We had party control of litigation, that situation was accompanied by a policy of doing justice
according to the merits. The court decides the case on the basis of the facts and correct law and not
on procedural grounds. This justice of the merits was taken to override procedure. Where there was
non-compliance with the SCR, the courts would forgive the defect.
Summary:
 The parties are left to conduct proceedings as they see fit and according to their own
timetable
 The parties and the judge had separate and distinct roles to play
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The parties themselves had to define the issues and prepare the litigation for the upcoming
trial
When the parties indicated, a case was fully prepared, the court conducted a trial and
decided the issues that the parties put forward for decision
Even during the trial, itself, the judge’s role was passive, the judge could not enter into the
arena of dispute
Facts:
Decision:
Decision:
Fooks v Slaytor (1957)
Issues not before the court
The plaintiff was driving his car, on a wet, dark night in England. As he was driving
his car, the plaintiff hit a parked truck. The plaintiff suffered damage, the plaintiff
alleged the truck wasn’t lit. The defendant didn’t bother to put a defence in or
attend the hearing.
The Judge hearing the case held that the plaintiff’s damages should be reduced
because of the plaintiff’s contributory negligence. The plaintiff appealed and was
successful. The plaintiff must not have been paying attention, but the trial judge
reduced the damages. The plaintiff was successful because the issues of
contributory negligence was not an issue before the courts, it was never raised by
the defendant. The judge wasn’t allowed to decide an issue that was not before
the court.
Jones v National Coal Board (1957)
Issues not before the court
Adversarial System Lord Denning characterised the adversarial system of trial in
this case: ‘in the system of trial which we have evolved in this country, the judge
sits to hear and determine the issues raised by the parties, not to conduct an
investigation or examination on behalf of society at large, as happens, we believe,
income foreign countries.
Lord Denning:
“... and ‘A judge’s part . . is to hearken to the evidence, only himself asking questions of
witnesses when it is necessary to clear up any point that has been overlooked or left
obscure; to see that the advocates behave themselves seemly and keep to the rules laid
down by law; to exclude irrelevances and discourage repetition; to make sure by wise
intervention that he follows the points that the advocates are making and can assess
their worth; and at the end to make up his mind where the truth lies. If he goes beyond
this, he drops the mantle of a judge and assumes the role of an advocate; and the
change does not become him well. Lord Chancellor Bacon spoke right when he said that:
‘Patience and gravity of hearing is an essential part of justice; and an over-speaking
judge is no well-tuned cymbal.”
The powers a Judge does not possess:
 Listen to the evidence
 Only ask questions of the witnesses when it is necessary to clear up any point that has been
overlooked or left obscure
 To ensure the rules are adhered to
 Exclude irrelevant information and repetition
 To make sure by wise intervention, the he follows the points that the advocates are making
and can assess their worth
The courts themselves set up a case management system (introduced late 80’s), is an approach to the
control of litigation where the court takes a more active role in the preparation and presentation of
case. The court supervisors the progress of the case through its pre-trial processes. The issues of cost
and delay are targeted. Cases must be finished in an expeditious time frame. It became necessary for
the sake of time for the issues to be introduced early. When it comes to case management the reason
was to prevent unnecessary delay and escalation of costs, to prevent the waste of time and public
money.
The essence of case management was to the private convenience of litigants must give way to the
courts to see that their resources are used to bring to an end a case at the earliest possible moment.
Case management schemes are based on the premise that there is an important public interest in the
functioning of the civil justice system. This reverses the previously passive role of the courts;
directions hearings are now important.
We had the traditional adversarial system where the parties were largely in charge, now with case
management this has changed. Now once a writ has issued and served, the court itself will decide the
timetable to avoid costs and delays.
The cases you have just read embody and distil a number of features of the adversarial system. Under
that system:
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The parties themselves determine the evidence that is presented to the court
The parties themselves select the issues to be litigated and define the questions upon which
adjudication is sought
Each party is responsible for the investigation and the gathering of the information that is to
be placed before the court, and the way it is to be presented
The judge is non-interventionist, or passive, in not being an active participant in proceedings;
the court’s decision is based solely on the evidence and issues presented to it
The procedure is designed to concentrate the judicial function into one continuous hearing
Evidence at the hearing is elicited by the parties asking questions in turn, the judge being
forbidden to call witnesses or to examine them otherwise than for the purpose of clarifying
their evidence where it is unclear
Where the rules of court are not complied with, in general no sanction will be imposed on the
delinquent party except at the request of the non-delinquent party.
It is arguably these features which are historically deeply embedded in the adversarial system which
represent its greatest disadvantages:
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Party autonomy, or leaving it to the parties themselves to enforce the expeditious
preparation for and conduct of trial
A consequence of party autonomy being long delays before a matter is ready for or advances
to trial;
Leaving sanctions to the parties: the adversary philosophy is that the courts will not impose
sanctions if the rules of court are not complied with; thus, although the rules of court may
impose time limits within which particular steps need to be taken, the parties are free to
concede to each other extra time for the taking of these steps. The obvious consequence is
that inordinate delays occur before a case finally comes to trial
That traditionally the adversarial model of procedure is premised on party autonomy or
control with judges playing a passive role by not intervening in the preparation or
presentation of a case
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The costs of litigation being substantially higher than they should be.
Colbran textbook 39 – 40
4. The Impact of Case Management Principles
Bozzi textbook – chapter 1
The concerns raised by the effects and abuses of the adversarial system triggered numerous attempts
at reform. Both the problems and the reforms have been recognised over the course of the twentieth
century, but large scale systematic reform awaited the close of that century in the United Kingdom
(the Woolf and Jackson reforms), and the early twentieth century in Victoria.
One of the most incisive instruments of reform has been the introduction of case management by
judges and quasi-judicial officers such as Registrars. Case management rests controls over the
progress of case from the parties (or their legal representatives). The judges and registrar of each
court now are able to set down timetables by which particular steps have to be taken by the parties.
The key features of case management is the setting down of a timetable by which steps have to be
taken by the parties. However, the situation may arise requiring documents to be amended. This and
other instances may prevent the timetable being followed and cause cases timetabled for a hearing
to be adjourned. Under such circumstances, the High Court of Australia has not held consistent view.
Once a writ has been issued and served, the matter goes before a judge for directions.
Sali v SPC Ltd (1993) HCA
Justice on Merits v Efficiency
Decision:
[11] In determining whether to grant an adjournment, the judge of a busy court is
entitled to consider the effect of an adjournment on court resources and the competing
claims by litigants in other cases awaiting hearing in the court as well as the interests of
the parties. As Deane J pointed out in Squire v. Rogers ((4) (1979) 27 ALR 330, at
p.337.) this "may require knowledge of the working of the listing system of the
particular court or judge and the importance in the proper working of that system of
adherence to dates fixed for hearing". What might be perceived as an injustice to a
party when considered only in the context of an action between parties may not be so
when considered in a context which includes the claims of other litigants and the public
interest in achieving the most efficient use of court resources.
Toohey and Gaudron JJ explained that case management reflected [158]:
“[t]he view that the conduct of litigation is not merely a matter for the parties but is
also one for the court and the need to avoid disruptions in the court’s lists with
consequent inconvenience to the court and prejudice to the interests of other litigants
waiting to be heard ...”.
What the court said in this case was, that it is the case management principles first. You have to
consider justice to all other litigants that want cases heard. The High Court reserved this decision in
QLD v JL Holdings (1997).
Queensland v JL Holdings (1997)
Reversing Sali (Temporarily)
Decision:
[12] In our view, the matters referred to by the primary judge were insufficient to justify
her Honour's refusal of the application by the applicants to amend their defence and
nothing has been made to appear before us which would otherwise support that
refusal. Justice is the paramount consideration in determining an application such as
the one in question. Save in so far as costs may be awarded against the party seeking
the amendment, such an application is not the occasion for the punishment of a party
for its mistake or for its delay in making the application. Case management, involving
as it does the efficiency of the procedures of the court, was in this case a relevant
consideration. But it should not have been allowed to prevail over the injustice of
shutting the applicants out from raising an arguable defence, thus precluding the
determination of an issue between the parties. In taking an opposite view, the primary
judge was, in our view, in error in the exercise of her discretion.
The High Court said that justice must prevail, we have to allow the party to make the
amendment to raise new claims and defences, because we are here to do justice.
Timetables and procedure come in second to the need for justice.
Aon Risk Services v Australian National University (2009)
Most important case in civil procedure law
Facts:
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The university, had a number of buildings which were destroyed or damage
in the Canberra bush fires. As a result, there were loss and damage in respect
to some of its buildings
ANU made a claim to its insurers, the insurance company knocked back the
claims:
a)
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Decision:
The properties that were damaged were not covered by the
insurance and if they were they were grossly undervalued
ANU then sued the insurance company and Aon, who were the insurance
brokers (arranging all insurance for the university).
The trial began in Canberra in the Supreme Court of ACT. On the third day of
the trial, the ANU settled its claim against the insurance companies.
The trial judge took 9 months to decide that justice was paramount, relying on QLD v
JL Holdings. Aon appealed to the Court of Appeal, in a spilt decision, the court held
that justice is paramount, agreeing with the trial judge.
Aon appealed to the High Court. The High Court refused to follow its own decision,
and went back to Sali findings.
The High Court in this CJ French made the following points:
1.
2.
The history of these proceedings reveals an unruly permissive approach to an
application made late in the day, was inadequately explained and raise new
claims not previously communicated between parties. Given these
circumstances if someone wants to raise new matters, then the applicant has
a heavy burden as to why leave for an adjournment should be granted.
The application for the adjournment and amendment, are not to be
considered solely due to prejudice that Aon may have suffered by costs.
3.
4.
(There was a time where if one party wanted an amendment and
adjournment, the approach of the court was to grant the adjournment,
provided the party that wanted the adjournment to cover the costs of the
other party).
The time of the court is a publically funded resources, inefficiencies in the
use of this resource arising from the adjournment of trials are to be taken
into account. So too is the need to maintain public conference in the judicial
system.
What has to be considered in an application for adjournment is:
1. The circumstances in which the application is made
2. The explanation for the application (if the application was made so
late)
3. Matters of public resources and undue delay should also be
considered
The other Judges noted:
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Case management is now an excepted aspect of Civil Justice administered by
the courts of Australia.
What might be just when an adjournment is sought requires to take into
account both litigants.
Sali v SPC shows a proper understanding of case management (QLD v JL
Holdings, do not).
The majority stated that in QLD v JL Holdings seemed to proceed on the assumption
that a party should be permitted to raise an arguable issue, suggesting that a party has
something of a ‘right’ to amend, which is not the case. There is no such right, there is
an allowance to ask for leave to amend.
The High Court was saying that case management does not mean that every application for
amendment should be refused, because it wastes court resources etc, the court has a right to
exercise its discretion.
a.
b.
c.
d.
e.
The nature and importance of the amendment to the party applying
The point the litigation has reached in relation to the trial date when the application is made
Whether a satisfactory explanation can be offered for the amendments
Where the application for amendment was made in good faith
The circumstances giving rise to the amendment must be made clear to the courts
The conclusion of this case:
1. An application for leave to amend a pleading should not be approached on the basis that a
party is entitled to raise an arguable claim
2. All matters relevant to permit an amendment should be weighed up
3. The fact of substantial delay and wasted costs will assume importance in an application for a
leave to amend
4. The statements made in QLD v JL Holdings are not in accordance to the views now
5. Certainly, a party has a right to bring proceedings, parties have choices as to what claims are
to be made and how this is done. But limits will be places upon their ability to have changes
to their proceedings, particularly if litigation is advanced
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Market Pty Ltd
[2013] HCA
Decision:
Affirming Aon case
Making the following points:
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Case management is an accepted aspect of the civil justice
administered by the courts of Australia
Speed and efficiency in the case of minimum delay are essential to
adjust resolution to proceedings
The achievement of a timely, cost efficient and just dispute (to the
parties and courts) are paramount
Parties to continue to pursue proceedings in the court, the conduct
is firmly in the hands of the courts
Application of Aon
Once you have served your writ, parties are called to a directions hearing before the courts. The judge
will set down a timetable as to what times certain pre-trial procedures must be taken.
The Principles of Open Justice
http://classic.austlii.edu.au/au/journals/MqLawJl/2012/3.html#fn6
Rinehart v Welker [2011] NSWCA 403
The principle of open justice is one of the most fundamental aspects of the system of justice in
Australia. It means that a court is physically open to the public and filed documents or tendered
evidence can be accessed by the public. The reality is that few members of the public physically access
the court; rather the public’s knowledge of what occurs inside the courtroom is enabled by media
reports of court proceedings. This means that a consequence of the open justice principle is that,
absent any restriction ordered by the court, anybody may publish a fair and accurate report of the
legal proceedings. Reports about court proceedings are usually undertaken by media organisations.
This is important because ‘publicity of proceedings is one of the great protections against the exercise
of arbitrary power and a reassurance that justice is administered fairly and impartially’. The purpose of
open justice is to ensure integrity and the accountability of those who administer justice. Further, it has
been said that witnesses are more likely to tell the truth if they testify in public. Open justice enhances
the public’s confidence in the justice system and perpetuates the rule of law. The provision of reasons
by the court for its decision is also an expression of the open justice principle.
Openness is usually placed with the right to a fair trial when set out as a right in bills of rights. Open
justice is expressed as a right to have a ‘fair and public hearing’. Privacy is also protected in some
statutes and it is balanced with the right to a public hearing. In jurisdictions without a bill of rights,
such as Australia, the common law first recognised the principle of open justice. It has also been
observed that the exercise of judicial power implied in Chapter III of the Australian Constitution,
includes a requirement of openness. In addition to the common law, there are statutes which
expressly permit departures from the open justice principle. A further constitutional argument has
been raised in respect of statutory powers that depart from open justice. In a case involving a
statutory power that permitted Australian Security Intelligence Office officers to give evidence
anonymously, it was argued that such a power undermined the institutional integrity of the State
court and therefore rendered it a less effective vehicle for the exercise of Federal jurisdiction.
Commencement - IMPORTANT FOR EXAM
You have to understand two things:
1. You have to file your writ within the limitation period. The Limitations of Actions Act
prescribes the period by which time proceedings have to be filed, failure to file to
proceedings within that time limit gives the defendant a valid defence to the whole of the
plaintiff’s action.
Example:
Let’s say the limitation period in negligence claims is 6 years (so you have to file within 6
years). The first question you ask has to be ‘what date did this occur’. Even if the defence
says not to issue proceedings because you will settle, you still should be prepared, you have
your discussions but file the writ first. Prepare your writ and bring it to the court where they
stamp it with the court seal.
2. Order 5 Rule 12 of Supreme Court Rules – stating once a writ has been filed in the court it
has to be served within 12 months, or it is considered to be stale.
Topic 2 – Commencement of Proceedings
The consideration of when and how to commence a proceedings is the focus of this topic. Having
received a client instructions to commence proceedings, a plaintiff’s lawyer should consider
numerous matters prior to filing a proceeding.
The mechanism which triggers the commencement of process is knows as the originating process.
The predominant mechanisms (originating process) for commencing a civil proceedings are the:
 Writ  used when factual issues are involved and the matters is likely to go to a disputed
trial)
 Originating motion  predominantly involving legal issues and when the matter is not likely
to involves a contested hearing
the purpose of filing either of these is to:
 To bring notice of the proceedings to the defendant
 To give details to the defendant of the grounds of which legal action is taken
 To give details of the remedy the plaintiff seeks
Letters of demand
Whether or not to write a letter of demand is a matter of practicality, prudence, and judgement
rather than a strict question of law. The lawyers overarching obligation to seek the most cost effective
and speedy resolution to the matter in dispute prior to proceedings to litigation may embrace the
concept of making demands of this kind. It is important to realise that in writing such a letter, lawyers
represent clients, and are not free of their ethical obligations, and should therefore proceed with due
deference to their ethical responsibilities and with professionalism. As a matter of practice, letters of
demand are written by legal practitioners in the hope of:
 Bringing about a speeding resolution of matters in dispute between the parties
 Prompting ‘without prejudice’ negotiations
 Revealing the strengths and weaknesses of the case of the respective parties
 Obtaining preliminary information (such as names of insurers)
However, a legal practitioner must draft the contents of such letters with caution. It is for example
unethical
 For a legal practitioner to threaten criminal proceedings in a civil matter
 To demand payment from a person who has neo legal liability to make that payment
 To make a demand for costs which are unreasonable or excessive
In these circumstances, letters of demand written by a legal practitioner may constitute misconduct
rendering that practitioner open to sanction or penalty.
Commencing proceedings: Origination Process
Textbook – chapter 2
An original process can be commenced in one of two ways: that is either by
 Writ
 Originating motion
Writ
If an action is to be commenced through the use of a writ, the writ must contain either a:
 General indorsement, or
 Special indorsement
A Writ is a written demand of the sovereign which summons to defendant to appear in court. It is
used where the dispute between the parties involves factual issues or disputes between them.
Rules 4.01 and 4.04 SCR.
General Indorsement
Rule 5.04(2)(b) SCR
The general indorsement paragraph must contain:
1. Notice of the claim (what occurred, with sufficient detail)
2. The cause there of (negligence, breach of contract etc. what was the legal category of the
instance
3. The relief/remedy sought by the plaintiff
In Renowden v McMullin, Barwick CJ and McTiernan J said:
‘it suffices if it (the general indorsement) conveys that information generally and without
particularity save here and to the extend to which particularity is indispensable to notify the
required elements of the indorsement…. On the other hand, the indorsement marks out the
perimeter or range of the area within which the plaintiff may express his claim in a formal
fashion in his statement of claim…
Ruzeu v Massey Ferguson [1983]
Facts:
Decision:
Facts:
Decision:
Facts:
Decision:
3 elements of endorsement
The general statement was that the plaintiff endorsed the writ with this
paragraph – “the plaintiffs case is for damages, for injuries he received to his
back in an accident that occurred on or about the 2nd of December 1975,
whilst he was in the course of his employment with the defendant. The
accident occurred as a result of negligence of the defendant, and the
plaintiff claims damages”.
The plaintiff appealed and the court of appeal held that the general
endorsement was goof because if had the three elements .
Dowling v Watson [2000]
Elements of endorsement
A young lady was riding a horse in an equestrian event and fell off, and
sustained injuries. She says in her indorsement – “the plaintiff’s claim against
you is for damages, for personal injuries suffered by the plaintiff as a result
of your negligence and/or the negligence of your servants/agents at the
equestrian centre on or about the 17 Nov. 1996”.
The court agreed that the three elements were complied with – ‘the
endorsement in this case does set out the parameters for the claim, by
stating the relief claim (damages), the nature of the claim (personal injury
from negligence).
Elsum v Jamerson [1974]
Elements of Endorsement
The general endorsement was – “the plaintiffs claim was for damages arising
out of a motor vehicles accident (date), on Burwood Highway in which the
plaintiff suffered loss and damage”.
The court held that the three elements were not satisfied, it was too vague.
The Burwood highway for example is a long stretch of road, where did it
occur? Was it damages and loss to the car or to the person? It is not
sufficient information as to what the defendant is being sued for.
This general endorsement did not disclose the nature nor the cause of the
claim.
When are general indorsed Writs employed?
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To initiate an action before it is barred under Limitations legislation, this can occur for
instance, when not all the facts necessary to establish a claim are known at the date of the
expiry of the statutory limitation period
When restrictive legislation may be impeding so that a proceedings should be commenced
When the allegations which the plaintiff wishes to make are in a state of flux and cannot
conveniently be formalised as a Statement of Claim
Persons who are embarrassed by some media revelation may use the process of commencing
proceedings by filing and serving a writ before any statement of claim can be formulated so
that the matter is rendered sub judice – hence any further discussion or comment is
precluded
Most specifically, for the purpose of the general indorsement is to notify the defendant of the
nature of the claim and of the relief claimed in the action, the indorsement marks out the
perimeter of the claim
Special Indorsement – A statement of claim
Rule 5.04(2)(a) SCR
The statement of claim is the plaintiffs statement which pleads the cause/s of action that the plaintiff
intends to rely upon in its case against the defendant, and the relief claimed. The statement of claim
must plead all the facts which establish the cause/s of action. Hence, in a breach of contract claim,
the plaintiff is required to plead:
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That there was a contract
What the terms of that contract were
That one or more of those terms was breached
That, as a result of the said breach/breaches the plaintiff suffered loss and damage
The relief that the plaintiff seeks
The plaintiff’s statement of claim is the first document which constitutes the ‘pleadings’ in an action.
Pleadings are in general completely constituted by the:
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Plaintiffs statement of claim
Defendants defence, and counterclaim if there is one
Plaintiffs reply to the defence
Defence to the counterclaim if there is one
The causes of action upon which the plaintiff relies are to be ascertained exclusively by reference to
what has been pleaded in the statement of claim. The court has the power to strike out a claim if it
does not disclose a cause of action, or is scandalous, frivolous or vexatious (order 23 SCR).
Originating Motion
Proceedings can also be commenced by originating motion. An originating motion is primarily
employed in resolving legal disputes rather than factual issues. There is therefore no need for formal
pleadings. For instance, an originating motion can be used in legal disputes concerning:
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The interpretation of legislation
The construction of wills and contracts
Family provision claims
The construction of trust intsruments, or directions in the administration of trusts
Serious injury applications
Rule 4.05 and 4.06 SCR
Textbook chapter 2
Assuming a writ has been issued pursuant to order 5 rule 12, the Writ has to be served within 12
months from the date of its filing.
If the writ/originating motion is not filed within 12 months, it is said to be “stale” and is no longer in
force. If a stale writ is served (that is served after 12 months after is was filed), it does not render the
proceedings a nullity, instead makes them irregular.
However, under order 5 rule 12(3) a writ can be renewed. If the plaintiff before the 12 months
applied to the court to renew the writ. If a defendant is served a stale writ, that defendant should
make application to have service of that writ set aside.
The court has the power to extend the period of one year. The plaintiff can make an application to the
court before or after the expiry to extend the validity of that writ. The plaintiff makes an ex parte
application to the court (meaning without the knowledge of the other party). The court will usually
grant a 3 – 6 month extension. The court is empowered to do so by virtue of order 5 rule 12(3).
The court has an unfretted discretion as to whether the period will be extended, the rules do not
contain express reference to requirements that should be considered when contemplating
extenstions. The rules simply say that the court may by order extend the period of time.
However, the courts have said that there has to be good reason to grant an extension. The best
reason a plaintiff can have is that there were unable to locate the defendant as to serve the writ. The
court asks itself this question – is there a good reason why the writ wasn’t served while it was valid?
The court looks at the following factors:
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How long service has already been delayed
The reasons the writ hasn’t already been served
What proof is there that the plaintiff has attempted to serve the writ
How have the parties conducted themselves
What hardships may occure if validity is/isn’t granted to both plaintiff and defendant
Example: the writ has been filed within the limitation period, the plaintiff cannot locate the
defendante, before the plaintiff can locate the defendant the limitation expires, does defendant have
a good defence to say that the writ has expired? No
The defendant when they become aware that the plaintiff has made an application to extend will
usually contest it.
What has been is by the courts is this – an originating process, can be reviewed after the limitation
period has expired, the court is empowered to renew it at its discretion, the originating process that
was issued before but not served before the expiry date.
The defendant does not obtain an automatic defence.
The court will take all matters into account.
Brealy v Board of Management Royal Perth Hospital (1999)
Van Leer Australia Pty Ltd v Palace Shipping (1994) HCA
Facts:
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The plaintiff imported from Japan, two consignments of steel which
arrived in Australia in November and December 1977.
Much of the steel was shipped in good order (when placed on the ship),
when it arrived in Aus it was found to be rusty.
The plaintiff alleged that the shipping company (Palace Shipping) caused
that loss
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The Hague Rules governed this transaction. Imposing a period of 12
months by which proceedings against a shipping company had to be
commenced.
Effectively Palace Shipping did not get served with the Writ for almost 23
months from when the writ was originally filed – it was stale after the
extension
The P applied to the court seeking a retrospective renewal of the writ
The Defendants wanted the renewal (back in 1979) be set aside, and the
service of the writ be also set aside
Timeline:
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Decision:
December 1977 - Cause of action arose
December 1978 – Expiry (because The Hague rules said there was a 12month expiry period)
24 November 1978 - The writ was filed (within limitation period)
23 November 1979 - given order 5 rule 12, the writ had to served
23 November 1979 – the P sought an extension in which to serve the writ
May 1980 – extension granted
May 1980 - Writ was said to be stale because it still wasn’t served
October 1980 – writ finally served
The court confirmed that is had a discretion, in this case the court held that
the discretion ought to be exercised in the favour of the defendant for the
following reasons:
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The defendant only became aware of the complaint when served
with the writ (23 months after the steel arrived in Aus)
The plaintiff took no steps/action in two years to inform the
defendant that the steel was in poor state
There was a very considerable delay in attempted service, the delay
was quite deliberate
Palace shipping did nothing to induce the delay in the service
The plaintiff had no explanation as to why it took so long to serve
the defendant
Interlocutory Process
An interlocutory (‘during proceedings’) or other application to a court is distinct from an originating
procedure which commences proceedings.
Interlocutory applications made on notice to any person shall be by summons (r 4.02 of the SCR). The
filing and service of a summons is a process by which any application is made to the court before the
trial of a proceedings that is, proceedings have been commenced and one of the parties needs to
make a particular application to the court for some reason. Examples include:
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An application for leave to amend a pleading
An application for leave to add a party
An application for an order that the other party five discovery of documents or answers to
interrogatories
In making interlocutory applications, refer to rr46.01 – 46.08 SCR. The form of a summons should be
as set out in Form 46A of the appendix of SCR.
Urgent interlocutory applications may be made without notice, that is, ex parte. Service of a
summons can be effected through the post, usually to the other party’s legal practitioner.
Review Questions – Topic 2
a) You are acting for a plaintiff who was involved in a motor vehicle collision. The
limitation period is about to expire (in fact it will expire tomorrow) and the plaintiff
instructs you to commence proceedings against the defendant for damages for
personal injuries. (assume that the plaintiff has received a “serious injury certificate”
from TAC). Please draft a general indorsement. You can make up what ever facts you
like.
i.
Would you answer be adequate if your general indorsement simply stated:
 ‘… the plaintiff suffered personal injury arising out of a car accident
that occurred approximately 3 years ago full details of which are
known to the defendant”
ii.
In what way, if at all, can this general indorsement be attached by the
defendant
b) What steps should a defendant take if served with a writ which has “expired”? Is is
sufficient for the defendant, in these circumstances, merely to write back to the
plaintiff stating as follows:
i.
‘The defendant does not accept service of the writ because it is out of time’
c) Johnson prepared his will and duly executed it in the appropriate manner in
accordance with the requirement of the Wills Act. Clause 13 of the will provided as
follows:
i.
‘I give and bequeath my Holden car to my grandson Giovanni’
 In fact, Johnson did not own a Holden car at death. He owned a Ford
Statesman. To make matters worse, Johnson had 3 grandsons named
Giovanni.
 Upon his death, a dispute arose between the 3 grandchildren all
claiming the Ford Stateman belonged to only one of them.
 Johnsons executor, Paul, does not know how to settle the dispute.
One of the grandchildren consults you and you advise that there
needs to be a legal proceeding initiated.
 Advise the grandchild as to the manner in which the proceedings
ought to be initiated and why?
d) Identify and explain the specific provisions (if any) of the Civil Procedure Act 2010
(Vic) that directly impact upon the materials that you have studied in this topic