New commentary and a link to the VIC County Court Family Property List practice note has been added to the By Lawyers Family Provision Claims guides for Victoria. This applies to both Acting for the plaintiff and Acting for the estate.
The commentary focuses mainly on the Supreme Court where most applications are filed, but the new section suggests that consideration should always be given to whether the plaintiff’s claim is more appropriately filed in the County Court. There is no monetary limit on the County Court’s jurisdiction.
Paragraph 1.3 of the County Court’s Family Property List practice note sets out the factors which make a case suitable for the County Court.
The decision as to which court any proceedings should be commenced in may involve consideration of the obligations upon parties and their legal representatives under Chapter 2 of the Civil Procedure Act 2010 – the ‘overarching obligations’.
If the plaintiff’s decision to file in the Supreme Court is based on a reasonable assessment that the factors in paragraph 1.3 of the Family Property List practice note do not apply it would be very hard to argue that a party, or their lawyer, was in breach of their obligations under Chapter 2 of the Civil Procedure Act 2010 by filing there. However, conversely, a decision by the plaintiff to file in the Supreme Court where those factors do apply might enliven the exercise of the court’s discretionary powers under Part 2.4 of the Act, including as to costs.
These important considerations are now covered in the commentary to assist practitioners, whether acting for a claimant or an estate.
Additionally, the Retainer Instructions have been amended to prompt for this consideration and a new precedent letter has been added to the Acting for the Defendant matter plan. This letter can be used to put the plaintiff’s solicitor on notice when the defendant considers the proceedings have been inappropriately filed in the Supreme Court rather than the County Court.