County Court Civil Procedure Rules 2018

The Rules apply to all civil proceedings in the County Court of Victoria, and therefore affect:

• All parties to County Court civil litigation: plaintiffs and defendants in commercial disputes, personal injury claims, workers compensation proceedings, estates matters and statutory applications.
• Solicitors and barristers appearing in County Court proceedings, who bear primary responsibility for complying with certification requirements.
• Expert witnesses, who must comply with the obligations in Order 44 including duties to the Court.
• Third parties joined to proceedings under Order 11 (third party procedure) or required to give discovery under Order 32.
• Persons the subject of enforcement proceedings under Orders 66 to 74.

Commencement and certification (Orders 1, 4, 5)

Every civil proceeding commenced in the County Court is subject to the Rules (rule 1.05). A party commencing a proceeding must file an overarching obligations certification (Form 4A) and, for most steps, a proper basis certification (Form 4B), bound into or attached to the relevant document (rule 4.12). Failure to provide required certifications is a failure to comply with the Civil Procedure Act 2010.

Service (Orders 6, 7, 7A)

Personal service of originating process is generally required. The Rules specify how personal service is effected (rule 6.03) and provide for substituted service (rule 6.10) where direct service is impractical. Service out of Australia is permitted without leave in specified cases (Order 7, rule 7.02) and requires leave in others (rule 7.03). Order 7A governs trans-Tasman proceedings under the Trans-Tasman Proceedings Act 2010 (Cth), including cross-border subpoenas and registration of New Zealand judgments.

Pleadings (Order 13, Order 14)

Pleadings set out the material facts relied on by each party. Defence must be filed within the time stated in the originating process or as directed. Rule 14 governs service of pleadings. Striking out of pleadings may occur under Order 23 where they are scandalous, frivolous or vexatious, or where they disclose no reasonable cause of action.

Discovery (Order 29)

A party may serve a notice for discovery requiring another party to make discovery of documents (rule 29.02). The scope of discovery is defined by rule 29.01.1 as documents directly relevant to the facts in issue. An affidavit of documents (rule 29.04) must be filed listing discovered documents. The Court may limit discovery (rule 29.05) or order expanded discovery (rule 29.05.2). There is a continuing obligation to make discovery as new documents come into existence or control (rule 29.15). Default in discovery may lead to orders under rule 29.14.

Medical evidence (Order 33)

In proceedings involving personal injury or death, a defendant may serve a notice for medical examination of the plaintiff (rule 33.04). Reports of medical examinations must be served within specified times. Failure to disclose reports in accordance with Order 33 may preclude a party from relying on the report at trial (rule 33.12).

Expert evidence (Order 44)

Expert reports must be prepared in accordance with the requirements set out in Order 44. An expert must state the assumptions, materials and reasoning underlying the opinion, and include a statement that the expert is aware of the duty to the Court. The case management directions under Order 34A may require experts to confer and prepare a joint report identifying areas of agreement and disagreement before trial.

Case management (Order 34A)

Proceedings are assigned to the Common Law Division or the Commercial Division and to a specialist list within that Division. A List Judge takes control of proceedings entered in the List (rule 34A.14). Directions hearings set timetables for discovery, expert reports, mediation or arbitration, and trial readiness (rule 34A.19 et seq.). A proceeding may be dismissed for want of prosecution under rule 34A.15.

Offers of compromise (Order 26)

A party may serve a formal offer of compromise in writing at any time before verdict or judgment (rule 26.02). The offer must state whether it is inclusive of costs or whether costs are to be paid in addition. The offer must remain open for at least 14 days (rule 26.03(3)).

Dispensing with compliance (rule 2.04): The Court may dispense with compliance with any requirement of the Rules where doing so would not cause injustice.

Extension and abridgement of time (rule 3.02): The Court may extend or abridge any time fixed by the Rules or an order.

Summary judgment (Order 22): A plaintiff may apply for summary judgment where the defendant has no defence to any claim or part of a claim on the law or the facts; a defendant may apply for summary judgment to dismiss or stay a claim.

Freezing orders (Order 37A): The Court may grant a freezing order (formerly known as a Mareva injunction) restraining a party from dealing with assets. Applications may be made without notice in urgent cases.

Search orders (Order 37B): The Court may grant a search order (formerly known as an Anton Piller order) authorising entry to premises to search for, inspect and copy documents or items.

Contempt (Order 75): The Court may deal with contempt of court, including disobedience of a Court order and wilful interference with the administration of justice. Penalty for contempt may include imprisonment.

Appointment of receiver (Orders 39, 74): The Court may appoint a receiver over property of a party, either as an interlocutory remedy or as an enforcement mechanism after judgment.

The Rules do not themselves create offences. However, failure to comply with the Rules or Court orders carries significant procedural consequences:

• Default in discovery can result in the proceeding being dismissed or the defence being struck out (Orders 24, 29).
• Failure to comply with an accepted offer of compromise can be enforced by entry of judgment or as provided by the order embodying the settlement (rule 26.07.1).
• Contempt of Court (Order 75) may result in fine or imprisonment.
• Non-compliance with a subpoena is addressed by Order 42; a person in breach of a subpoena may be liable for contempt.

Enforcement of judgments (Orders 66 to 74) is governed by separate Orders:

• Warrant of seizure and sale (Order 69): authorises the Sheriff to seize and sell the judgment debtor's personal property.
• Warrant of possession (Order 70): authorises recovery of land.
• Attachment of debts (Order 71): garnishment of debts owed to the judgment debtor by third parties.
• Attachment of earnings (Order 72): periodic deductions from the judgment debtor's wages.
• Charging orders (Order 73): security over the judgment debtor's property, including land and securities.
• Appointment of receiver (Order 74): judicial management of the judgment debtor's property.

Key timelines prescribed by the Rules:

| Step | Timeframe | |---|---| | Appearance to writ (general) (rule 8.04) | As stated on writ (ordinarily 10 business days) | | Offer of compromise minimum acceptance period (rule 26.03(3)) | 14 days after service | | Costs consequences of offer activate (rule 26.08(2)(b), (3)(a)) | 11:00 am on second business day after service of offer | | Originating process duration (rule 5.12) | 12 months from filing (renewable) | | Time to apply to set aside for irregularity (rule 2.03) | Reasonable promptness (no fixed period; delay bars application) | | Prior overarching obligations certification period (rule 4.09.1) | 2 years | | First directions hearing (rule 34A.24) | As directed by Registrar or Judge |

Civil Procedure Act 2010 (Vic): The foundational Act to which the Rules give procedural effect. The overarching obligations and proper basis certification requirements in Orders 4 and 5 are mandated by sections 41 and 42 of the Civil Procedure Act 2010.

County Court Act 1958 (Vic): Section 78 is the primary authorising provision for the Rules.

Supreme Court Act 1986 (Vic): Order 63A applies subject to the Supreme Court's powers and the Costs Court's jurisdiction under Part 6, Division 2 of the Supreme Court Act 1986.

Trans-Tasman Proceedings Act 2010 (Cth): Order 7A provides the specific procedural rules for proceedings under the Trans-Tasman Act.

Limitation of Actions Act 1958 (Vic): Section 23A is one of the bases on which a proceeding may be assigned to the Common Law Division under rule 34A.03(c)(i).

Accident Compensation Act 1985 (Vic) and Workers Compensation Act 1958 (Vic): Proceedings under these Acts fall in the Common Law Division under rule 34A.03(e).

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic): Proceedings under this Act are in the Common Law Division under rule 34A.03(f).

Transport Accident Act 1986 (Vic): Certain proceedings are in the Common Law Division under rule 34A.03(d).

Open Courts Act 2013 (Vic): Procedure for suppression, non-publication and pseudonym orders is governed by Order 82.

Vexatious Proceedings Act 2014 (Vic): Procedure for applications under that Act is governed by Order 83.

Costs consequences of offers of compromise are automatic unless Court otherwise orders: Under rule 26.08, the costs consequences of a plaintiff's unaccepted offer that is bettered at trial, or a defendant's unaccepted offer that is not beaten at trial, arise automatically unless the Court otherwise orders. The "unless the Court otherwise orders" qualification requires a positive exercise of discretion to displace the standard consequences. Failing to make an offer or delaying an offer can be costly.

Indemnity costs from second business day after service: The indemnity costs entitlement in rule 26.08(2)(b) runs from 11:00 am on the second business day after the offer was served. Calculating this date precisely matters, as it determines the cut-off for the ordinarily applicable versus indemnity costs.

Overarching obligation certification must be attached to each relevant document: Rule 4.12 requires the certification to be "bound into or attached to" the document. A certification filed separately is likely non-compliant.

Discovery is directly relevant, not merely relevant: Rule 29.01.1 limits the scope of discovery to documents "directly relevant" to the facts in issue, a narrower standard than some other jurisdictions. Courts have applied this strictly in Commercial Division matters.

Dismissal for want of prosecution: Rule 34A.15 allows the Court to dismiss a proceeding that has been inactive. Practitioners who allow a matter to stagnate risk dismissal without the need for a formal delay application by the opponent.

Medical reports must be served before trial: Under Order 33, failure to serve a report within the required time means the party cannot use it at trial (rule 33.12) unless the Court grants leave. Late service does not cure this; leave is required.

Example 1 (commencing a proceeding): A plaintiff's solicitor commences a breach of contract claim in the County Court. Before filing the writ, the solicitor must sign a Form 4A overarching obligations certification and a Form 4B proper basis certification. These are bound into the writ. The writ must be served by personal service under rule 6.02. The defendant has the time stated on the writ to file an appearance.

Example 2 (offers of compromise): A defendant makes a written offer of compromise to pay $250,000 inclusive of costs, served on the plaintiff. The plaintiff rejects it. At trial, judgment is entered for $200,000. The offer was more favourable than the outcome. Under rule 26.08(3), the plaintiff recovers costs on the ordinarily applicable basis up to 11:00 am on the second business day after the offer was served, and the defendant recovers costs on the ordinarily applicable basis thereafter. If the claim was a personal injury claim and the offer had been made by the plaintiff, the costs consequences under rule 26.08(2)(a) would be indemnity costs from the date of the offer.

Example 3 (discovery dispute): A defendant fails to respond to a notice for discovery served under rule 29.02. The plaintiff serves a default notice under rule 29.12.1. If the defendant still does not comply, the plaintiff may apply under rule 29.14 for an order that the defence be struck out or for such other order as the Court sees fit.

Example 4 (enforcement): A plaintiff holds a County Court judgment for $80,000. The judgment debtor's employer is identified. The plaintiff applies for an attachment of earnings order under Order 72, which, if granted, requires the employer to make periodic deductions from the judgment debtor's wages and remit them to the Court until the judgment debt is satisfied.