Originating motions and Writs

Question 1

When to use originating motions to commence proceedings?

Answer 1

Must use (r4.05)
* No defendant
* Authorised under an Act or
* Required by the rules

May use (r4.06)
Unlikely any substantial dispute of fact, and therefore it’s appropriate that there are no pleadings or discovery

Question 2

What is the process for commencing proceedings with an OM?

Answer 2

1. Signed by the P’s solicitor – r 5.11(2)
2. Commences the proceedings when filed. Filing occurs once received by prothonotary, sealed and dated – 5.11
3. valid for service for 1 year after it is filed – time can be extended. R5.12
4. OM shall in forms 5B – 5G – rg.02
5. An application for Judicial Review will be form 5G – r56.01
6. Evidence will be provided through an affidavit – r45.02
7. Where D fails to file an appearance within the timeframe, the court may give judgment against D for the relief or remedy sought in OM – but can only rely on the affidavit filed and served on D in OM and no other additional evidence – r45.03
8. If an appearance has been filed, the Associate judge can determine if they have the authority or consent, or refer to a judge for hearing and determination/ or case manage whilst it is in the list of cases to be heard. R45.04
   Plus overarching obligations and proper basis certificates

Question 3

How is evidence presented in proceedings commenced by way of an OM?

Answer 3

• Evidence at a trial commenced by originating motion shall be given by affidavit (r45.02)
• Can be given orally by agreement. – 445.02(2) SCR

Question 4

What happens if the Defendant in a proceeding initiated by an OM does not file appearance?

Answer 4

• R45.03 SCR
• Court may give judgment for remedy sought in OM.
• Can give where:
  o On application made by the plaintiff without notice to the defendant; and
• On proof of service of the OM and of the failure

Question 5

What happens if the Defendant in a proceeding initiated by an OM files appearance?

Answer 5

• R 45.04 SCR
• No judgment will be given except on application by the plaintiff.
• Application shall be made to an Associate Judge summons served on D, in Form 45A.
• The application needs to describe the judgment or order sought.
• The associate judge may hear and determine the application.
• If defendant consents to the judgment, associate judge may give judgment for the plaintiff
• If the defendant does not consent to judgment, the Associate Judge may refer the application to a judge for hearing and determination.

Question 6

What is the special procedure for OM?

Answer 6

• Special procedure may be allowed – OM to commence by form 5C instead of form 5B to dispense with the usual time delays to D’s appearance – r 45.05
• Where there is an urgent case/save time and expense of parties/where defendant consents – Court may dispense with rules of appearance of D and authorise P to commence a proceeding by OM.
• May be made on an application by the P before or after the proceeding is commenced.
• May be made without notice to D – except if OM has been served on D.
• P must apply to Associate Judge or judge for order/judgment – on notice to D.
• Associate Judge may hear and determine application; give judgment; list it for trial.

Question 7

Can court change the OM to a writ?

Answer 7

• R4.07 SCR
• If commenced by OM, Court may order proceeding continue as if commenced by writ if:
  o Due to Act or rules should have been brought by writ; or
  o In court’s opinion, more convenient to continue as if commenced by writ.

Question 8

What is the process for commencing proceedings with a writ?

Answer 8

1. Signed by the P’s solicitor – r 5.11(2)
2. Indorsed with a statement that if D does not file an appearance within the time stated, P may obtain summary judgment against D. R5.03 SCR
   Time for filing an appearance is stated in r 8.04 SCR
   - 10 days after the date of service if within Victoria; and
   21 days after the date of service if interstate
3. commences the proceedings when filed. Filing occurs once received by prothonotary, sealed, and dated – 5.11
4. valid for 1 year after it is filed – time can be extended. R5.12 for service
5. a writ should be in form 5A – r5.02
6. The writ shall contain an indorsement of claim which can be the statement of claim – r5.04
7. The indorsement shall specify:
   a. The relief/ remedy sought – r5.05
   b. The address of P, P’s representatives, address for service, and D’s address – r 5.07
   c. The desired place/ mode of trial (if not specified: default is Melbourne and judge alone trial (no jury)) – r. 508
   d. If the P is claiming a debt, the writ shall be indorsed with the amount of the debt, amount claimed for costs and a statement that the proceeding will end if the amounts are paid with in the time for the D to file an appearance – R 5.09
8. Plus overarching obligations and proper basis certificates