SCR o 5 - Order 5 – Content, filing and duration of originating process

Question 1

5.03 Appearance (indorsement on writ / OM)

Answer 1

A writ and (unless there is no defendant) an originating motion shall be indorsed with a statement that, if the defendant does NOT file an appearance within the time stated in the originating process, the plaintiff may obtain judgment against them without further notice.

The time for appearance stated in the originating process shall be as provided by Rule 8.04.

8.04 Time for appearance

Unless Court otherwise orders, the time for the defendant to file an appearance shall be—

• where originating process served in Vic, not less than 10 days after service;
• where originating process served outside Vic in Aus, 21 days after service; …

Question 1

5.02 Form of originating process

Answer 1

A writ shall be in Form 5A.

An originating motion shall be in Form 5B, 5C, 5D, 5E or 5G, whichever is appropriate.

Question 2

5.04 Indorsement of claim on writ

Answer 2

A writ shall contain an indorsement of claim. The indorsement of claim shall be—

• a statement of claim; or
• a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.

An indorsement of claim is a statement of claim only when headed “Statement of Claim”.

Question 3

5.05 Indorsement of claim on motion

Answer 3

An OM shall specify—

• the relief or remedy sought and the Act, if any, under which the claim is made; and
• where it includes any question to be answered, the question shall be stated.

Question 4

5.08 Place and mode of trial

Answer 4

A writ shall be indorsed with a statement of the place and mode of trial desired.

If the writ is not indorsed with a statement as to:

• place – plaintiff taken to desire trial in Melbourne,

*mode of trial – plaintiff taken to desire trial without a jury.

Plaintiff may indorse an OM with statement of desired place of trial (if not, MEL assumed).

Question 5

5.09 Stay on payment of costs

Answer 5

Where the plaintiff claims a debt only, the writ shall be indorsed with:

• a statement of the amount of the debt and the amount claimed for costs; and
• a statement that the proceeding will come to an end if, within the time limited for filing an appearance, the defendant pays the amounts so claimed to plaintiff / solicitor.

Where a writ is so indorsed, and the defendant pays the amounts claimed within the time for filing an appearance, then the proceeding shall come to an end.

Question 6

5.11 Filing of originating process

Answer 6

A proceeding shall be COMMENCED BY FILING the originating process.

An originating process is filed—

• when the PROTHONOTARY RECEIVES the originating process and seals and dates it; or
• in the case of a proceeding to which Order 28A applies, when the originating process has been dealt with in accordance with Rule 28A.03.

The originating process for filing shall be SIGNED by the plaintiff’s SOLICITOR (or the plaintiff where the plaintiff sues in person).

Upon an originating process being filed (or at any later time) the Prothonotary, on the plaintiff’s request, shall seal a sufficient number of COPIES FOR SERVICE.