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3: Commencement of Proceedings  

Writ: o Used when factual issues are involved Originating motion: o Predominantly involving legal issues

Letter of Demand  

Not always legally necessary Often carried out in hope of: o Speedy resolution o To prompt without prejudice negotiations o Strengths and weaknesses of the case o Preliminary information

Need be careful of content: 

Unethical to o threaten criminal proceedings in a civil matter o demand payment from person with no liability to pay o make a demand for costs which are unreasonable or excessive in these circumstances it may constitute misconduct rendering that practitioner to penalty

Commencing Proceedings  

Using wrong initiating process is merely an irregularity which the court may remedy through the appropriate order; Phelts v Denny Proceeding commenced either by the issuing of a writ or an originating motion or another way required by the rules; Supreme Court Act 1986 (Vic) S 3

General Principles  

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Proper identification Date of the originating process o Date of originating process is conclusive evidence of the date when proceedings were commenced Describing parties o Essential to describe the parties adequately on the originating process; Cameron v National Mutual Life Association of Australasia Representative capacity o Person suing in representative capacity need state that they are suing in such a way on the originating process Addresses of parties and solicitors

Attempted negotiations Plaintiffs are required to certify that prior to the commencement of the action they made genuine efforts to negotiate the matter; Civil Procedure Act 2010 (Vic) s 42(1)(a) 

Not a ground for invalidating the proceeding but may be the basis of an adverse cost order

Steps If proceedings do not raise a substantial factual dispute:  

So that pleadings and discovery are not required it is appropriate for the plaintiff to opt to commence proceedings by way of originating motion; Rule 4.06 Supreme Court Act

Originating Motion proceedings:  

do not involve pleadings; rule 14.02 requires party to seek leave to make discovery; rule 29.07(2)

Writ 

Used where the dispute between the parties involves factual issues or disputes between them

General Indorsement 

Prescribed form under rule 5.02

Requirement writ must contain an indorsement of claim which must either be: a. statement of claim; or o An indorsement of claim headed “Statement of Claim” is a statement of claim and is defined as a pleading; 1.13 b. Statement which complies with rule 5.04(2)(b) o A statement satisfies this rule if it gives the defendant notice of the: (a) nature of the claim being brought (b) Cause of action being claimed (c) The remedy sought by plaintiff Statement of claim indorsed on writ must satisfy order 13 and be sufficient as a pleading 

And indorsement that is sufficient as a statement of claim is defined under the rules as a pleading; Rule 1.13

Order 13

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Determines whether an indorsement is sufficient as a statement of claim o If insufficient it may be struck out or order to be amended; rule 23.02

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Indorsement of claim is not a valid pleading if it: o Fails to disclose a cause of action o Is scandalous or vexatious o Is prejudicial or embarrassing o Delays the hearing of the trial o Or is others an abuse of the courts process;

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An indorsement that is not headed “Statement of Claim” does not become a statement of claim by virtue of it being extensively detailed; o But remains a mere indorsement o Plaintiff need serve the defendant with statement of claim after serving the indorsement

Response of the defendant; rule 23.02 

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Defendant must plead and serve a defence in response to an indorsement constituting a statement of claim; rule 14.04(a) o Failure to do so will result in them being subject to default proceedings; rule 14.04 Defence need be filled within 30 days of the appearance; rule 14.04(a) Defendant must file a defence to an indorsement entitled “Statement of Claim” notwithstanding that, as assessed by order 13, it is defective as a pleading; Leed v National Australia Bank

Failure to comply 

If a general indorsement fails to comply with rule 5.04(2)(b) it is not null and void o The non-compliance renders it a mere irregularity

General rule: 

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Courts will permit defects to be corrected o However this is at the courts discretion to set aside either the writ or its service, or to set aside the indorsement The irregularity may be overcome by serving the statement of claim; Hill v Luton Corporation o This service of a statement of claim would suffice to cure any non-compliance with r 5.04(2)(b) in relating to a claim

b. Indorsement not a statement of claim 

An indorsement lacking the heading “Statement of Claim” will have its validity for the purposes of rule 5.04(1) assessed by determing its compliance with rule 5.04(2)(B)

Rule 5.04(2)(b) 

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Provides that an indorsement of claim that is not a statement of claim must be a statement sufficient to give reasonable particularity notice of: o The nature of the claim o The cause thereof o The relief or remedy sought Result is now that they plaintiff must now give more information

Rules now require; Ruzeu v Massey Ferguson 

The indoresement to disclose with reasonable particularity the; o Nature of the claim; o the cause of action; and o the remedy sought

Whether the indorsement is sufficient? 

Whether the indorsement is sufficient to notify the defendant of the nature of the claim against them the question is a matter of substance, not form

Degree of particularisation; Renowden v McMullin 

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Suffices if it conveys the information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement Indorsement may inform the defendant generally of these matters unless notification requires them to put with greater particularity; Renowden v McMullin

The statement of claim must fall within the scope indorsement because it is the specific way of stating the claim the plaintiff has endorsed on the writ; Renowden v Mcmullin It will do so even if the statement of claim alters, extends or modifies the indorsement, but I cannot amend it; Order 20 Rule 2(3) 

A statement of claim exceeding the indorsement forces an amendment of the indorsement and will thus be struck, or the application to amend the indorsement will be refused where the amendment is incapable of amendment; Renowden v McMullin

Amendments 

There can be no alteration to an indorsement to add a claim after the limitation period of a cause of action has expired, as it would cause a prejudice to the defendant; Rubenstein v Truth & Sportsman

However 

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If prejudice is of a kind that could be compensated by an award of costs, an adjournment, or other means, may be granted under the courts discretion to allow an amendment; Rule 36.01 Unless specifically empowered in exceptional circumstnaces the court will not allow amendment that deprives a defendant of a defence that has arisen under the Limitation of Actions Act 1958 (vic)

Difference indorsement and statement of claim 

While the statement of claim must accommodate the indorsement on the writ unless the indorsement is capable of amendment, a cause of action in the indorsement that disappears in the statement of claim is considered to have been waived or abandoned o No subsequent amendment can reincorporate the cause of action into the statement of claim once the statutory limitation has expired

Identifying the cause of action 

Need identify the legal cause of the action; Ruzeu v Massey Ferguson

Irregularities     

It is an irregularity if the indorsement does not comply with the rules Court may either order the writ be set aside or order that the plaintiff amend it; Rule 2.01 A defendant applying to have a process struck out must do so before taking any other step in the proceeding; rule 2.03 If defendant takes a procedural step having become aware of the irregularity, it is taken as the defendant’s waiver of the plaintiffs need for compliance A defective indorsement can be rectified by the plaintiff serving a statement of claim provided the statement of claim alters, modifies or extends the indorsement without amending it; Rule 14.03

Time for service Rule 5.12 

Originating process which does not specify a return date may be validly served for one year after the day it was filed, unless another period is otherwise specified

The time of day is irrelevant; Trow v Ind Coope (West Midlands) Ltd An originating process becomes stale and is no longer in force if it has not been served within the time provided by rule 5.12 

Court may from time to time extend this period of time up to a year; rule 5.12(4) o Plaintiff required to satisfactorily explain the failure to effect service of the writ within the period of original validity

Decision to extend  

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Subject to the terms of the rules Courts discretion to renew is unfettered; Vic rule 5.12 o Court will renew if satisfied that reasonable efforts have been made to locate or serve the defendant, or if there is some other good reason to renew Court will consider: o Time passed o How realistic the probability of renewing will enable the plaintiff to serve the defendant without further delay; rule 5.12(2) Multiple defendants o Serving one defendant within the period of the writ’s validity will not validate service on any other defendant outside the writ’s validity period  Only an order extending the period of the writ’s validity for service will render service valid; Jones v Jones

Serving a stale writ   

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Does not invalidate proceedings unless other order by the court Stale originating process may be effective for purposes other than service Non-service of an originating process commenced within the limitation period does not make the proceeding statute barred if the process is extended or renewed and is served within the period Service of stale process merely an irregularity which the courts may waive in circumstances where the originating process: o May be validly renew; Gillies v Dibbetts o Where the defendant enters an unconditional appearance; Sheldon v Brown Bayle’s Steel Works o Unconditional notice of intention to defend; Sheldon A defendant served with a stale writ wanting to have proceedings put aside for irregularity must apply to the court wither without filing an appearance or after filling a conditional appearance Stale writ not been renewed cannot validly be made the subject of an order for substantive service; Bernstein v Jackson

Application to extend period of validity    

Court is empowered by rule 5.12(3) to make an order that the time for validly serving an originating process be extended after the time for service has expired. Discretion of court usually made ex parte; Finlay v Littler Party required to put before the court all matter that might affect the exercise of the court’s discretion; Savcor v Catholic Proctection Plaintiff need show good reason exists to grant the extension; Ramsay v Madgqicks

Prejudice 

If the extension prejudices the defendant’s ability to conduct their defence in a manner that cannot be compensated the application is likely to be defeated; Ramsay v Madgwicks

Further information page 63 and examples as well.

Commencing Proceedings

Different Processes 

Unless otherwise provided in the Act proceeding in the Court shall be commenced by writ or by originating motion; Supreme Court (General Civil Procedure) Rules 2015 rule 4.01

Writ   

Shall be in form 5A; rule 5.02(1) If contested facts in case need use a writ A writ sets out:

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Number of pre-trial procedures Date in which issued has implication of when a statement of claim is due and when defence is due

Must have: 

Indorsement of claim; r 5.04(1)

Indorsement of claim: r 5.04(2) 

Shall be: a) A statement of claim; or b) A statement sufficient to give with reasonable particularity; i. notice of the nature of the claim; and ii. the cause thereof; and iii. of the remedy sought

Originating Motion 

Shall be in form 5B-5G (not 5F) whichever is appropriate; rule 5.02(2)

Summons 

Interlocutory or other application in a proceeding made on notice to a person shall be by summons; rule 4.02 - Used to make an application within the proceedings seeking any mater or rulings of order, i.e. an order for discovery

Wrong process 

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Generally court won’t set aside proceeding just because commenced by wrong process; rule 2.01 - “it is an irregularity and does not render proceeding a nullity” Court power to continue proceeding as writ; 4.07 - i.e. if commenced with originating motion when writ should’ve been filled - complementary rule for originating motion

Rule 2.01(2) 

Subject to rule 2.02/2.03 where failure to comply, the court may: a) Set aside the proceeding either wholly or in part b) Set aside a step taken in the proceeding c) Exercise power to allow amendments and to make orders dealing with the proceeding generally

Stale Writs 

Applicant need show good reasons exist for the granting of an extension; Ramsay v Madgwicks - Irrespective of whether the application is made before or after time period

Time frame 

Originating process valid for service for 1 7year after the day in which it is filed; r 5.12(1) - Court can extend/renew ‘stale’ originating process; r 5.12(2)

Good reasons 

Need to show why the writ was not served while valid; Waddon v Matsukawa

Relevant factors for consideration of good reasons;     

How long service has already been delayed Reasons origination process not been served How parties conducted themselves Hardship caused by refusing to renew Other good reasons

Van Leer v Palace Shipping  

Renewal of writ after expiration of limitation period Expiry of limitation period not fatal - Just one factor

Service 

Give notice to party on whom it is made

Personal vs. Ordinary Service Ainsworth v Redd 

Certain documents are required to be served personally

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o This includes originating process This is because such documents require, such an originating motion, attract the jurisidiction of the Court and commences litigation o Must be served in a more solemn or formal way than is permitted with other Court process

Individual =

Companies =

Companies =

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r 6.07(1)(f); expressly recognises ‘ordinary service’ by email r 5.07(1)(d): originating process must include email address

When service not required   

Solicitor agrees to accept service; rule 6.09 Pursuant to agreement between the parties; rule 6.14 Unconditional appearance; rule 6.02(2)

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Service outside Australia in accordance with local service rules; rule 7.03 Substituted service; rule 6.10

Ainsworth v Redd 

Equivalent to Rule 6.03 o ‘How personal service affected’

Service outside of Australia    

Page 102 Generally, Court will only have jurisdiction if plaintiff can establish territorial nexus Long arm rule; rule 7.02 Power to order that Victoria is not a convenient forum for the trial proceeding; r 7.05(2)(b)

Voth v Manildra Flour Mills  

Voth accountant in USA Negligence claim in NSWSC

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‘clearly inappropriate forum’ v. ‘not convenient forum’; r 7.05

Held: 

Court’s power to stay proceedings is discretionary and must take all factors into account

Rule 7.02

Substituted Service  

Application for substituted service are made ex parte and must be supported by evidence Rules allow for employing other than the prescribed means of effecting service, either within or outside the jurisdiction; Western Suburban & Notting Hill Benefit v Rucklidge

2 limbs test for when substituted service will be ordered 1. Practical impossibility  

Court concerned with whether the prescribed form of service will be effective Plaintiff must lead evidence demonstrating the impracticability of personal service, and not merely that the prompt service will be difficult to achieve; Kendell v Sweeney o Service practicable if it can be effected in the manner prescribed by rules; Paragon Group v Burnell

2. Plaintiff’s proposed method of service 

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Improper to order service that highly unlikely to achieve objects of service o i.e. method need be able to achieve the purpose of service, that being by bringing the originating process to the defendants attention Court will order substited serviced if it is reasonably likely to notify the defendant of the proceeding o This will depend on the circumstances of the case

Example  

Leaving with an agent authorised to accept service on behalf defendant; Montgomery Jones v Liebenthal Leaving with defendants spouse; Bank of Whitehaven v Thompson

List of examples page 97 book.

Appearance W

What is an appearance?  

Document prepared by defendant and served on the plaintiff Signifies the defendants intention to defend o Signifies that any further steps in the proceeding can be taken only on notice to the defendant

Unconditional appearance: 

Acknowledges the court’s jurisdiction and waives any irregularity in the service of the proceedings

Effects:    

Waives objection that defendant ma have with respect to the jurisdiction of court to hear and determine the matter; Perkins v Williams Waives any objection to procedural irregularities; Forbes v Smith Relieves plaintiff of requirement to prove service Waives technical breaches of ‘stale’ writs

Note: 

Submitting to the court’s jurisdiction will not, however, confer jurisdiction on the court where it has no other basis for it; Colbert v Tocumwak Trading o i.e. person only submits to the court inherent jurisdiction o does not confer on the court a subject matter jurisdiction it does not otherwise possess

Conditional appearance:  

Does not waive procedural irregularities, but allows the defendant to raise arguments about lack of jurisdiction and/or service irregularities Preserves the right of the defendant to object to any service irregularties or jurisdiction of the court; r 8.03(3)

If after having filed a conditional appearance, defendant is able to establish the court’s lack of jurisdiction, or any irreulairity; 

Court can stay the proceedings or set them aside

Order 8 Key Features  

Form 8A prescribes form; r 8.05 Deadline to file appearance; r 8.04

General rule; 

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Must file appearance before taking any procedure steps o May proceed before entering an appearance ...