ByLawyers News and Updates

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

Standard orders – VIC

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The County Court’s library of standard timetabling and other orders have been added to the relevant By Lawyers litigation matter plans.

The County Court requires practitioners to use the court’s orders that are published in booklets on the Court’s website unless good reason exists to alter those orders, or draft alternate ones. A different booklet of standard orders applies for each of the Common Law and Commercial divisions.

The orders cover all aspects of procedure in the court, including listing, timetabling, extensions of timetables, subpoenas, and costs. There are specific standard orders for each of the court’s various lists, such as the:

  • General List – personal injury,
  • General List – property damage,
  • Serious injury list – TAC proceedings,
  • Defamation list, and
  • Family property list – TFM claims.

The full library of these standard orders has been automated and added to Folder A. Going to Court in By Lawyers County Court – Acting for the plaintiff and County Court – Acting for the defendant guides.

A selection of these orders has also been added to the following By Lawyers guides, as appropriate:

The court forms for the Commercial List Order template and the Common Law Division Minutes of Proposed Consent Orders have also been added to the relevant matter plans. These are the forms into which the various orders are inserted as appropriate.

Additional commentary explaining the requirements and practicalities of using these orders has also been included in the relevant By Lawyers commentaries.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

Service and default judgment – VIC

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Amendments to the County Court rules alter the procedure for service and default judgment from 1 August 2023.

The County Court (Chapter I Service and Default Judgments Amendment) Rules 2023 amend the County Court Civil Procedure Rules 2018.

The new provisions deal with service of documents by email, and also introduce additional requirements for a plaintiff seeking to enter or apply for judgment against a defendant who fails to serve a defence within time.

Service

For some time, it has been permissible to effect ordinary service by email under r 6.07 unless the attachments to the email were more than 10 megabytes. The rule has now been amended to provide that attachments over 10 megabytes may be served by multiple emails, each with attachments not exceeding 10 megabytes.

Default judgment

For default judgment under r 21.01, where the defendant has failed to serve a defence within the required time, the amendments to the County Court rules require the plaintiff to first serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against them. Then, if the defendant does not serve a defence within seven days of receiving the notice, the plaintiff may enter or apply for judgment.

When applying for judgment, an affidavit is required proving the failure to serve the defence within time, service of the notice, and the failure to then serve a defence within seven days.

Publication updates

The By Lawyers County Court – Acting for the Plaintiff and County Court – Acting for the Defendant guides have been updated for the changes to service and default judgment respectively.

Intervention orders – VIC

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Appeals against intervention orders made by magistrates are no longer considered de novo hearings, following a recent Supreme Court case.

Previously, appeals to the County Court under both the Personal Safety Intervention Orders Act 2010 and the Family Violence Protection Act 2008 were conducted as hearings de novo.  That is, the County Court conducted the trial of the application for an intervention order afresh and gave a decision based on the evidence before it. This meant the parties had to give their evidence and be cross-examined again.

In AAA v County Court of Victoria [2023] VSC 13 the Supreme Court held that an appeal to the County Court against an intervention order, or a refusal to make an order, is not an appeal de novo. It is a broad appeal by rehearing that allows for new evidence. It is not a hearing in which the applicant begins again with the magistrate’s decision being disregarded. The parties may adduce new evidence on appeal, but are not required to.  The County Court determines the appeal based on both the evidence at first instance and any new evidence before it.  The court’s task on appeal is to identify factual, legal, or discretionary error in light of all of the evidence before the court, including any new evidence.

Whilst the focus is on the identification of error, the error may be a factual one. As the County Court reconsiders the application, the error may be that the magistrate made erroneous findings of fact on the evidence available, or reached an erroneous conclusion on the ultimate question of whether the statutory criteria for making the order are satisfied.  Further, as the County Court determines the appeal at the time of the appeal, and new evidence may be adduced, it is not necessary to establish that the magistrate made an error based on the evidence before them at the time. It is open to the County Court to find error even if, had it been limited to the evidence before the magistrate, it would have reached the same conclusion as the magistrate.

The decision suggests that the conduct of final hearings in intervention order matters in the Magistrates’ Court will now be open to close examination and scrutiny on appeal.

The commentary in the By Lawyers Intervention Order (VIC) guide has been updated accordingly.

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 rules – VIC

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A second tranche of amendments to the County Court rules commence on 31 January 2022. These relate to mediation.

A new rule 50.07.2 provides for the court to order that matters be referred to a registrar for mediation, at any stage of the proceedings. This new rule is in addition to the existing rule which allows the court to refer matters to mediation by a judicial registrar.

Other amendments to the County Court Civil Procedure Rules 2018 under the County Court (Chapter I Miscellaneous Amendments) Rules 2021 have already commenced. These concern the way affidavits and exhibits are prepared and filed. See Affidavits, Annexures and Exhibits on both the Acting for the plaintiff and Acting for the defendant matter plans in the By Lawyers County Court (VIC) publication for more information.

A third tranche of amendments to the rules will commence on 1 March 2022. These deal with the titles and nature of the lists in the Commercial Division. By Lawyers County Court publication will be further amended to reflect these changes in due course.

Family Property List – VIC

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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.

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.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

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