1 Commencing and Defending a Legal Action
Commencing and defending a legal action can be very costly in terms of both money and time spent. Generally, the party who loses will be made to pay the other side’s legal costs, so it is best only to begin legal actions that you feel you have a good chance of winning. Prospective litigants will also have to familiarise themselves with the rules and legislation governing the Court’s processes. As always, it is best to try to resolve your legal problem outside of the courts if possible. If you are going to represent yourself, make sure you are familiar with the rules and legislation of the Court.
1.1 Commencing a Legal Action
If you are making a new claim against someone, the most important thing to think about is what your ‘statement of claim’ will contain. Your statement of claim contains your allegations against the defendant, as well as an explanation of the orders that you want the Court to make in response.
At the same time, you also need to pay attention to the procedural requirements of how you will present your statement of claim—either as a ‘writ’ or ‘originating motion’.
1.2 Defending a Claim/Writ
If you have been served with a writ and wish to defend the action, you must file a ‘notice of appearance’, usually within 10 days of being served. Thirty (30) days after filing your notice of appearance, you will need to file and serve a ‘notice of defence’. You will need to think carefully about what your defence to your opponent’s claim will be, and how your defence is likely to be received in the Court.
1.3 Preparing a Notice of Appearance
If you have been served with a clain/writ or originating motion, the first step in responding is filing a ‘notice of appearance’—Form 8A. If a notice of appearance is not filed the plaintiff may ask the Court to grant the judgment or orders they have requested without any further notice to you.
While any person duly authorised to act on a corporation’s behalf under the Corporations Act may file an appearance on its behalf, corporations are required to be represented by a solicitor.
Your notice of appearance must generally be filed and served within 10 days after service of the writ, but this may change if you live outside of Victoria. To avoid confusion, the time limit for filing will be recorded on the writ or originating motion.
1.4 Notice of Defence
Where a proceeding is commenced by writ, a defendant who files a notice of appearance must file and serve a notice of defence within 30 days of filing their appearance. You need to think about what your defence to the statement of claim will be, and if your defence will hold up to scrutiny in a court of law.
1.5 Typed/Printed Documents or Handwritten Ones?
It is always best to submit typed/printed documents rather than handwritten ones. Be as concise as you can, and make the document look professional. These will be the main documents used in your court action—if they read well, they may give you a better chance of settling or winning your action.
1.6 Try to Settle the Matter
Parties should attempt to settle the matter outside of the courtroom to alleviate one party from having to pay the legal bills of the other. The longer a matter is active, the more legal costs will be building up.
2 Types of Commencing Documents
2.1 How Proceedings Commence
A proceeding in the Supreme Court shall be commenced by filing a writ (Form 5A) or an originating motion (Form 5B, 5C, 5D, or 5E, whichever is appropriate).
An interlocutory or other application in a proceeding is made by filing a summons (Form 45A or Form 46A).
Some appeals are commenced by filing or serving a notice of appeal.
Except in the case of appeals, judicial reviews or applications, a person who commences a proceeding by writ shall be called a ‘plaintiff’ and a person against whom a proceeding is commenced shall be called a ‘defendant’.
2.2 Writ or Originating Motion
The mechanisms for commencing proceedings are governed by legislation and the Supreme Court Rules. These include writ, originating motion, affidavit, and another originating processes. Supreme Court Registry staff may be able to provide some procedural guidance, but the decision about the appropriate way to commence a particular proceeding must be made by you, as the plaintiff. Most proceedings start by filing a writ. The alternative, filing an ‘originating motion’, is used where there is no defendant to the proceeding or where an Act or the Supreme Court Rules require. A proceeding may start by filing an originating motion where it is unlikely that there will be any substantial dispute of fact.
2.3 Overarching Obligations
Before starting a proceeding, you must have read and understood the overarching obligations set out in sections 16 to 26 of the Civil Procedure Act 2010 and the paramount duty set out in section 16 of the Act.
You will also be required to complete and file both a ‘Pre-litigation Requirements Compliance Certificate’—Form 4C—and ‘Overarching Obligations Certificate’—Form 4A—certifying that you have complied with your pre-litigation duties and obligations under the Civil Procedure Act.
Most proceedings are commenced by filing a writ. A proceeding shall be commenced with an originating motion where there is no defendant to the proceeding or where any other Act or the Supreme Court Rules require. A proceeding may also be commenced by filing an originating motion where it is unlikely that there will be any substantial dispute of fact.
2.4 Statement of Claim
An originating motion or a writ shall specify the relief or remedy sought and the Act, if any, under which the claim is made. This is usually called the ‘statement of claim’ in a writ. The statement of claim should state accurately the nature of and cause of the claim, along with the relief or remedy sought in the proceeding. Where there is a question to be answered, the question shall be stated in the statement of claim.
2.5 Notice of Appearance
If you have been served with a claim/writ or originating motion, you must first file a Notice of Appearance (Form 8A). If a notice of appearance is not filed, the plaintiff may obtain the judgment or orders they have requested in the statement of claim without further notice to you.
A corporation may file an appearance by any person duly authorised by it to so act under the Corporations Act. A corporation is required to be represented by a solicitor.
A notice of appearance must be filed and served, usually within ten (10) days after service of the writ. If you live outside of Victoria, the time to file an appearance is stated in the writ or originating motion.
2.6 Notice of Defence
In a proceeding commenced by writ, a defendant who files a notice of appearance shall file and serve a notice of defence within 30 days after filing the appearance.
2.7 Service of Writs, Originating Motions, and Other Documents
There are rules concerning the serving of documents to the Court and to the other parties involved in your case that must be adhered to. 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, it need not be served personally. 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, put the copy down in the person's presence and tell the person the nature of the document.
Where personal service of a document is not required, the document may be served by leaving the document at the proper address of the person on a day when the prothonotary's office is open or by posting the document. If you are serving on a solicitor, the document can be served by post, document exchange or by fax.
2.8 Filing with the Supreme Court
You should file original documents in person at the Supreme Court Registry and serve the documents on the other parties.
If you are representing yourself, please make an appointment with the Self-represented Litigant Coordinator (see section 4.1 below) before you file or serve any documents.
3 Legal Assistance
Have you had any legal assistance in relation to your appeal? If you have a legal problem, it is always best to seek legal advice. If, however, you do not want or cannot afford legal advice from a solicitor, there are various places you can go to seek initial legal help.
Do some research in the area of law your matter is concerned with, and try to find out everything you can before you commence a legal action. The best place to start is to search the internet for your specific legal problem; there are various websites that can give you advice. A good place to start could be the websites listed in sections 3.1–3.5 below.
Before you start or continue court proceedings, we suggest you try seeking out one or more of the following resources if you do not want or cannot afford legal advice or representation.
3.1 Law Institute of Victoria
The Law Institute of Victoria (LIV) offers a legal referral service to members of the community who cannot afford legal representation. A litigant can complete a referral form for a free 30 minute consultation with a solicitor. To obtain a referral form, or to find out more about the LIV’s legal referral service you can:
· visit the following webpage, www.liv.asn.au/Referral, and follow the prompts
· phone 03 9607 9550 or
· contact the LIV via email at referrals@liv.asn.au
The LIV is located at 470 Bourke St, Melbourne. Their website can be found at www.liv.asn.au.
3.2 Victoria Legal Aid
We encourage self-represented litigants seeking free legal advice to visit the Victoria Legal Aid (VLA) website, available at www.legalaid.vic.gov.au, or contact their helpline on 1300 792 387. The VLA helpline gives advice on a range of civil and criminal issues.
3.3 Community Legal Centres
Community Legal Centres (CLCs) are independent community organisations that provide free legal services. There are two types of CLC:
· generalist CLCs provide services on a range of legal issues to people in their local area. There are generalist CLCs who may be able to assist with your legal issues across metropolitan Melbourne and throughout rural and regional Victoria
· specialist CLCs can help with particular areas or law (such as tenancy, consumer, employment, welfare, human rights, environmental issues and immigration law) or assist specific groups of people (such as young people, women, or people with mental illness or disabilities).
For a list of CLCs and their relevant contact details, or other general information, please visit their website at www.fclc.org.au.
3.4 Justice Connect
The Justice Connect (formerly PILCH) helps individuals access pro bono assistance and coordinates a number of pro bono schemes in Victoria.
Justice Connect may be able to help you find pro bono legal assistance if:
· your matter has merit (a good chance of success)
· you are ineligible for legal aid
· you meet a means test and
· your matter has public interest.
You can find out more information about PILCH and getting pro bono help by visiting their website, available at www.justiceconnect.org.au, or by phoning 03 8636 4400.
3.5 Other Online Information
You can also browse free legal information at various websites, such as:
· The Law Handbook: Your Practical Guide to the Law in Victoria: www.lawhandbook.org.au/handbook.php.
4 General Information
4.1 Self-represented Litigant Coordinator
The Supreme Court has a Self-represented Litigant Coordinator who specialises in assisting litigants who, for various reasons, find themselves without legal representation. Just like any court registry officer, the Self-represented Litigant Coordinator cannot give you specific legal advice relating to your particular case. However, the coordinator’s office will be able to provide you with procedural and practical advice, as well as information about alternative dispute resolution measures and the availability of any free legal services. Self-help packs on various types of proceedings that can be commenced in the Supreme Court are available in hardcopy at the Supreme Court Registry, can be posted by request or can be found on the www.supremecourt.vic.gov.au website.
If you would like to make an appointment with the Self-represented Litigant Coordinator, please phone 03 9603 9240 and ask to make an appointment or send an email to unrepresented@supremecourt.vic.gov.au. The coordinator’s office is located in the Supreme Court Registry (see section 4.2).
4.2 Supreme Court Registry and the Court of Appeal Registry
The Supreme Court Registry and Court of Appeal Registry are located on Level 2, 436 Lonsdale St, Melbourne. They are open from 9.30am to 4pm Monday–Friday, except public holidays.
Contact details include:
· Supreme Court Registry phone: 03 9603 9300
· Court of Appeal Registry phone: 03 9603 9100
· Court of Appeal Registry email: coaregistry@supremecourt.vic.gov.au
The Supreme Court conducts hearings on the ground floor of 436 Lonsdale St, Melbourne for hearings before an associate justice and at 210 William St, Melbourne for hearings before a Supreme Court justice.
The Court of Appeal hears its cases in three courtrooms situated at 459 Lonsdale Street, Melbourne. The Green Court is located on the ground floor, the Red Court is located on Level 1, and the Blue Court is located on Level 2.
4.3 Duty Barrister Scheme
The Duty Barrister Scheme of the Victorian Bar provides a roster of duty barristers to assist self-represented litigants in the Supreme Court and the Court of Appeal on an ad hoc basis.
A pro bono (free of charge) barrister can only appear in court on your behalf to help you with the hearing; they cannot assist you with your paperwork or give legal advice before the hearing.
Persons seeking assistance are referred to the scheme via the Self-represented Litigant Coordinator or the Court of Appeal.
4.4 Court Network
Rather than provide legal advice, Court Network provides support and crisis assistance. Court Network is a unique non-legal court support, information and referral service operating throughout Victoria.
Court Network volunteers can provide support and information about going to court, be with you in person on your day in court, explain how the courts and legal systems operate (in person or by telephone) and refer you to other community services that can help you.
For more information, please visit their website at www.courtnetwork.com.au or call 03 9603 7433.
5 Supreme Court Fees
See fees page on our website. www.supremecourt.vic.gov.au
5.1 Fee Waiver Application
The prothonotary has the power to waive the payment of court fees if the payment of the fee will cause financial hardship.
Section 129 (3) of the Supreme Court Act 1986 states the following:
The Prothonotary or Deputy Prothonotary at or for the place where a proceeding is to be heard may, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay a fee prescribed under subsection (1) (a), waive payment of that fee if, in his or her opinion, the payment of that fee by that person would cause him or her financial hardship and, in that case, that prescribed fee is not payable.
Fee waiver applications require a thorough examination of an individual’s assets, liabilities, income, and expenditures. The individual must provide evidence to support the details they state in the application. For example, bank statements, pension card details (if applicable), details about any loans or shares, any assets currently owned, and an individual's current employment status must all be made available.
If you are successful in having one fee waived, this does not mean any future fees are also waived. A new application is required for each payable fee.
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