SCR o 4 - Process in the Court

Question 1

R4.01 How proceeding commenced

Answer 1

A proceeding in the SCV is commenced by writ or by originating motion (except where otherwise provided by or under any Act or these Rules).

Question 2

R4.02 Interlocutory application

Answer 2

Interlocutory and other applications in a proceeding made on notice to any person are made by summons.

Question 3

R4.03 Names of parties

Answer 3

• proceedings in MC, CC or SCV = plaintiff and defendant
• proceedings in Federal Court and VCAT = applicant and respondent
• proceedings commenced to identify a defendant (r 32.03) or obtain discovery from a prospective defendant (r 37.02) = applicant and respondent
• appeal = appellant and respondent

Question 4

4.04 When writ required

Answer 4

Every proceeding shall be commenced by writ, except as provided by Rules 1.12 (order to review), 4.05 and 4.06 (originating motion) and Order 58 (appeals from lower jurisdictions)

Question 5

4.05 When originating motion required

Answer 5

A proceeding shall be commenced by originating motion—

• where there is no defendant to the proceeding;
• where by or under any Act an application is authorised to be made to the Court; or
• where required by these Rules.

Question 6

4.06 Optional commencement by originating motion

Answer 6

A proceeding may be commenced by originating motion where—

• it is unlikely that there will be any substantial dispute of fact; and
• for that reason it is appropriate that there be no pleadings or discovery.

Question 7

4.07 Continuance as writ of proceeding by originating motion

Answer 7

If proceeding commenced by OM but ought have been commenced by writ – bc eg there is a defendant – court may order that it continue as if it had been commenced by writ.

Question 8

4.08 Urgent case

Answer 8

In an urgent case, a person who intends to commence a proceeding can apply to the Court to make any order which the Court might make if the applicant had commenced the proceeding and the application were made in the proceeding.

Question 9

R4.09 - OO certification

Answer 9

Overarching obligations certification shall be in Form 4A (for the purposes of section 41(2) of the CPA)

Question 10

R4.10 - Proper basis certification

Answer 10

Proper basis certification shall be in Form 4B (for the purposes of section 42(2) of the CPA)