ByLawyers News and Updates

County Court – VIC

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The County Court Commercial Division Omnibus Practice Note PNCO 2-2022 came into operation on 1 August 2022.

The new Commercial List Practice Note is largely a consolidation of all the previous practice notes for the division into a single omnibus practice note.

The main changes are in relation to the introduction of electronic processes for discovery, affidavits, and subpoenas.

The Court has also issued a Notice to practitioners regarding the Commercial Division Standard Orders Booklet 2022, also released on 1 August and to be read in conjunction with the new practice note. This collection of the court’s required content and format for consent orders is to be consulted by parties drafting consent orders to be submitted to the Court.

The By Lawyers VIC Litigation guides County Court – Acting for the plaintiff and County Court – Acting for the defendant have been updated accordingly, with references and links to the new omnibus practice note and standard orders booklet in the commentary. There are no new forms or precedents required.

Additional updates have also been made to the commentaries for new Common Law practice notes that have been released recently.  The Court’s Common Law division has not consolidated its practice notes into a single omnibus practice note at this stage.

County Court lists – VIC

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New County Court lists commence in the Commercial Division from 1 March 2022.

The County Court (Chapter I Miscellaneous Amendments) Rules 2021 provide for the Expedited Cases List to become the Complex Cases List from that date. The amending rules provide that the Complex Cases List shall consist of any proceeding that is appropriate for more intensive case management. Transitional provisions in the amending rules provide that proceedings in the Expedited Cases List immediately before 1 March 2022 are, on that day, taken to be entered in the Complex Cases List.

There is also a newly established Arbitration List, for all matters under the Commercial Arbitration Act 2011.

The commentaries in the By Lawyers County Court – Act for the Plaintiff and County Court – Act for the Defendant publications have been updated to include these new County Court lists.

This is the final tranche of changes under these rules amendments. Other changes that have already commenced relate to the preparation and filing of affidavits and exhibits in the County Court, and mediation by the registrar. See our previous News & Updates posts in that regard.

Affidavits and exhibits – Supreme Court – VIC

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The way affidavits and exhibits are prepared and filed in the Supreme Court’s Common Law Division and Commercial Court is changing.

From 1 October 2021 the Court will no longer accept affidavits for filing that include multiple exhibits, or which separate the affidavit and any exhibit. Affidavits must be in a single fully text-searchable PDF format file including any bundle exhibit.

Affidavits must be filed as a single, searchable PDF document, with all pages consecutively numbered. This includes the pages of any exhibit – see Exhibits to affidavits and Filing and service of affidavits in the By Lawyers Supreme Court (VIC) commentaries for more information.

There may only be one exhibit to an affidavit, except for confidential affidavits.

Where more than one document is exhibited to an affidavit, the documents must be combined into a single ‘bundle exhibit’, ordered in the sequence they are referred to in the affidavit. The exhibit must be part of the affidavit, in a single fully text-searchable PDF format file, with legible page numbers at the bottom right-hand corner of each page that correspond with the digital display page numbers of the PDF, that commence from the first page of the affidavit to the last page of the bundle exhibit.

See Affidavits and exhibits in the By Lawyers Supreme Court (VIC) publication for more information.

In a separate but related change to procedure, from 1 October 2021 all evidentiary documents filed in proceedings in the Common Law Division and Commercial Court may not be inspected by any non-party until the document has been read or relied upon in open court. This applies to affidavits, exhibits, witness statements, expert reports, written submissions, outlines of argument and chronologies.

See Practice Note SC Gen 20 Inspection of Civil Court Files by Non-Parties and Notice to the Profession (Changes to File Inspections and Affidavits) for more information.

Supreme Court – urgent applications – VIC

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The By Lawyers Victorian Supreme Court litigation publication has been reviewed by our author, resulting in consolidation and enhancement of the commentary, especially relating to urgent applications.

Both the Acting for the Plaintiff and Acting for the Defendant guides in the Supreme Court publication have been reviewed.  The matter plans and related commentary have been re-ordered, with additional subheadings for improved searchability. The commentary on Urgent cases and applications has been expanded. Direct links have been added to the relevant Supreme Court webpages with contact details and specific procedures for making urgent applications.

See the subfolder If required – Urgent applications and injunctions, in folder C. Going to court and folder D. Interlocutory steps on both matter plans, for the relevant commentary, links and precedents. Folder D also contains commentary and precedents covering all types of interlocutory applications, urgent and otherwise.

The Victorian Supreme Court publication also includes an Enforcement Guide, which provides practitioners with comprehensive practical assistance on enforcing judgments for their clients.

Also included in the publication is the popular reference manual 101 Subpoena Answers. This valuable resource substantially augments the commentary in the Supreme Court guide regarding the law and practice on issuing and responding to subpoenas.

This author review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Magistrates Court – Civil – VIC

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The By Lawyers Magistrates Court – Civil litigation publication has been reviewed by our author, resulting in consolidation and enhancement.

Both the Acting for the Plaintiff and Acting for the Defendant guides in the Magistrates Court – Civil publication have been reviewed. Precedents on the matter plan have been consolidated, with some updates and amendments. This includes a number of bespoke By Lawyers precedents in the nature of ‘court forms’ drafted for use where there is no prescribed court form for certain actions required under the rules of court.

Amended precedents include:

  • Notice of discontinuance
  • Notice of ceasing to act
  • Notice of change of solicitor
  • Notice of change of solicitor’s address
  • Offer of compromise
  • Acceptance of offer of compromise under order 26
  • Application for administrative transfer to the County Court
  • Answers to interrogatories

The precedent Notice of Defence to Counterclaim has been deleted. This is because when a counterclaim is served the rules apply as if the defendant were the plaintiff and the plaintiff were the defendant. Accordingly, the usual Defence – Form 8A is used to defend a counterclaim which is on the matter plan.

Commentary on administratively transferring matters to the County Court, pursuant to s 17 of the Courts (Case Transfer) Act 1991, and appropriately responding to counterclaims has also been added.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Default judgment in the Supreme Court Commercial List – VIC

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An order of a Commercial List Judge is now required before a plaintiff can obtain a default judgment in the Supreme Court Commercial List, where a matter is being managed by a Commercial List judge.

A new r 2.07 has been inserted into the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, pursuant to the Supreme Court (Chapters II and III Miscellaneous Amendments) Rules 2019.

The new rule is effective from 25 March 2019.

The Default judgment commentary in the By Lawyers Victorian Supreme Court – Acting for the plaintiff guide has been updated accordingly.

The amendment does not prevent a plaintiff making an application for default judgment under Order 22 or 23 of Chapter I or Part 4.4 of Chapter 4 of the Civil Procedure
Act 2010.

Podcast – Personal Injury Guide – Victoria

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If you are wondering what all the fuss is about with By Lawyers new Personal Injury Guide for Victoria, listen to this podcast from our Senior Consultant and Editor Brad Watts explaining the content and advantages of this newest addition to the By Lawyers litigation guides.

Brad takes you through the new guide from start to finish and discusses key pieces of commentary and the helpful precedents that make it easy to represent a client with a personal injury claim. The content discussed includes:

  • Limitation periods and taking proper instructions
  • Costs agreements
  • Assessing the viability of a personal injury case – elements of negligence under the Wrongs Act
  • Supporting and preparing the claim – gathering evidence from the client and witnesses
  • Settling the claim early through mediation and offers of compromise
  • Managing the case in court

You can access this episode on Soundcloud – or click below to listen!

New Guide – Personal Injury – Victoria

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We are delighted to announce the launch of the latest addition to By Lawyers’ Injuries publications, being a Personal Injuries Guide for Victoria.

This publication covers all aspects of advising and representing clients with personal injury claims under the Wrongs Act 1958.

The publication contains helpful commentary and precedents for conducting a claim from start to finish.

Commentary

The detailed and practical commentary discusses all aspects of personal injury claims, including:

  • Limitation periods
  • Taking comprehensive instructions
  • Establishing a duty of care
  • Establishing a breach of duty
  • Factual causation and scope of liability
  • Particular negligence situations such as occupiers’ liability
  • Defences, including obvious and inherent risks
  • Damages
  • Supporting and preparing a claim
  • Mediation
  • Offers of compromise
  • Costs considerations
  • Going to court – Supreme Court and Country Court procedures.

Precedents

Easy to use precedents provided for each stage of the matter include:

  • Retainer instructions
  • Initial letter to plaintiff
  • Costs agreement
  • Letter to medical panel
  • Letter to plaintiff advising on mitigation of damages
  • Example content – pleading and particulars
  • Brief to counsel
  • Subpoenas and Notices to produce
  • Authority and instructions for payment of settlement or award

Before advising a client, it is important to understand the nature and extent of the restrictions imposed upon claims and damages by the Wrongs Act, as well as the defences created.

The By Lawyers Personal Injuries Guide will enable Victorian practitioners to confidently assist clients with personal injury claims.

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