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Commencing proceedings

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By Mark Skermer, Principal, MST Lawyers

Commencing proceedings in a Court or Tribunal in Victoria can be daunting, but this is the way in which we in the Western world seek resolution of civil disputes.

Proceedings in Victoria can be commenced in either one of the many Courts or Tribunals, subject to the nature of the dispute and the type of relief being sought. For example, the Magistrates’ Court of Victoria has a jurisdictional limit of $100,000.00 for civil claims. If a claim exceeded that amount, for example, then a party would need to issue proceedings in either the County or Supreme Courts. Another example might be a lease dispute, where VCAT tends to have jurisdiction.

Proceedings are normally commenced by way of Complaint /Statement of Claim or Writ. This can change depending on the Court or Tribunal where proceedings are commenced, but there is always a foundation document which sets out a party’s case.

Once that document has been filed with the Court, it is served on the other side and that Defendant (or Defendants if there is more than one) then must file pleadings in reply within a pre-determined time.

One of the key things that has changed the landscape in recent years has been the operation of the Civil Procedure Act 2010 (Vic). That Act, amongst other things, sets out that the parties have obligations which they must observe during the Court proceeding such as an obligation to act honestly and to avoid delay. Both the party and the lawyer acting must provide certifications to the Court on these issues.

Once proceedings are defended, it is entirely usual these days for a matter to be referred to mediation before a trial. Whilst mediations are known by many names depending on what Court or Tribunal you are in, the process is normally the same in the sense that it is an off the record discussion designed to resolve the dispute. Lawyers are typically present in all mediations except for those in VCAT where lawyers appearing is more discretionary. If the matter resolves, it goes no further. If not, the parties continue on to a trial in order to seek resolution from a Court.

This article is intended to be the first of two, a second article will appear later in the year detailing how trials typically work.

For further information, please contact our Dispute Resolution & Litigation team by email litigation@mst.com.au or by telephone +61 8540 0200.