Supreme Court Act 1986

17F Costs Judge may direct judicial registrars and costs registrars 30

17G Powers and functions of costs registrar 30

17GA Powers and functions of judicial registrar in Costs Court 31

17H Review of costs registrar's determination by judicial registrar 31

17HA Review of judicial registrar's determination by Costs Judge 32

17I Appeals 33

17J Costs in proceedings in another court or VCAT 34

17K Transfer of file 34

Division 3—Powers 35

20 Offence to publish certain information concerning proceedings 35

20A Power to act in cases relating to rates and taxes 35

22 Execution of instruments by order of Court 36

23 Attachment of earnings 37

24 Costs to be in the discretion of Court 37

24A Mediation 37

24B Court may issue or transmit court documents electronically 37

Division 3B—Immunities and protections 39

24D Immunity and protection of Judge of Court extends to administrative functions 39

24E Immunity and protection of Associate Judges 39

24F Immunity and protection of specified court officers 39

24G Protection of assessors 40

Division 4—Court Rules 40

25 Power to make Rules 40

26 Manner of making Rules 48

27 Disallowance of Rules 48

27A Protection of special referees, mediators and arbitrators 48

Division 5—Council of Judges 49

28 Council of Judges 49

Division 5A—Powers of Chief Justice 50

28AAA Administrative responsibility of Chief Justice 50

Division 6—Professional development and training 51

28A Professional development and training 51

Part 3—Concurrent administration of law and equity 52

29 Law and equity to be concurrently administered 52

30 Power to stay proceedings 52

Part 4—Inferior courts 53

31 Power of inferior courts with equity jurisdiction 53

32 Transfer of proceeding from inferior court 53

33 Rules of law to apply to inferior courts 54

Part 4A—Group proceeding 55

Division 1—Preliminary 55

33A Definitions 55

33B Application 56

Division 2—Commencement of group proceeding 56

33C Commencement of proceeding 56

33D Standing 57

33E Consent of group member 58

33F Persons under disability 58

33G Group proceeding not to be commenced in certain circumstances 58

33H Originating process 59

33J Right of group member to opt out 59

33K Causes of action accruing after commencement 60

33KA Court powers concerning group membership 61

33L Fewer than seven group members 61

33M Distribution costs excessive 62

33N Proceeding not to continue under this Part 62

33P Consequences of proceeding not continuing under this Part 63

33Q Where not all questions common 63

33R Individual questions 64

33S Directions for further proceedings 64

33T Adequacy of representation 64

33U Stay of execution 65

33V Settlement and discontinuance 65

33W Settlement of individual claim 65

Division 3—Notices 66

33X When notice to be given 66

33Y Notices under section 33X 67

Division 4—Judgment, etc. 68

33Z Judgment of the Court 68

33ZA Constitution etc. of fund 69

33ZB Effect of judgment 70

Division 5—Appeals 71

33ZC Appeals 71

Division 6—Miscellaneous 72

33ZD Costs 72

33ZDA Group costs orders 72

33ZE Suspension of limitation periods 74

33ZF General power of court to make orders 74

33ZG Order may specify a date by which group members must take a step 74

33ZH Order in event of decision or admission on liability 75

33ZJ Reimbursement of plaintiff's costs 75

33ZK Transitional provisions 76

Part 5—Miscellaneous rules of law 77

Division 1—General 77

36 Declaratory judgments 77

37 Injunctions and receivers 77

38 Damages in addition to or in place of other remedies 77

39 Foreign law 78

40 Crown payments to be subject to attachment 78

41 Failure to prosecute not a bar to civil remedy 78

42 Property available to satisfy judgment debt 78

43 Standard time in Victoria 79

44 Meaning of month in documents 79

Division 2—Vessels 80

45 Rule as to division of liability for damage or loss 80

46 Liability for loss of life or personal injuries 81

47 Right of contribution 81

Division 3—Fires 82

48 Proceeding does not lie against person on whose land fire accidentally begins 82

Division 4—Contracts of minors 82

49 Certain contracts by minors to be void 82

50 No proceeding to be brought on ratification of minor's contract 83

51 Avoiding contract for payment of loan advanced during minority 83

Division 4A—Administration of children's funds 84

51A Court orders relating to administration of children's funds 84

Division 5—Sureties, co-contractors and co-debtors 86

52 Surety discharging liability to be entitled to securities 86

Division 6—Apportionment 87

53 Definitions 87

54 Rents etc. to accrue from day to day and be apportionable 88

55 Time when apportioned part is to be payable 88

56 Recovery of apportioned parts 88

Division 7—Interest 89

57 Any interest may be contracted to be paid 89

58 Interest to be allowed when debts or sums certain recovered 89

59 Damages in nature of interest 90

60 Interest in proceedings for debt or damages 90

Division 8—Contempt of court 92

61 Restoration of common law relating to contempt of court 92

Part 6—Miscellaneous powers 93

Division 1—Determinations without oral hearing 93

62 Court may determine matter or proceeding without oral hearing 93

Division 2—Delivery of documents 94

76 Power of Court to order legal practitioner or law practice to deliver bill of costs etc. 94

Division 3—Assistance of assessors and legal practitioners 94

77 Assessors 94

78 Opinion of a legal practitioner 94

Division 4—Proceeding for recovery of land 95

79 Proceeding by landlord if rent is in arrears 95

80 Lessee not to have relief without payment of rent and costs 96

81 Proceeding by landlord against tenant holding over after end of tenancy 98

82 Provisions concerning securities 99

83 Saving of former remedies 100

84 Proceeding for recovery of land by mortgagee 100

Division 5—Relief from forfeiture 101

85 Relief against forfeiture for non-payment of rent 101

Division 6—Arrest in pending proceedings 102

86 Arrest on mesne process abolished 102

87 Court may order arrest 102

88 Security to be given by defendant 103

89 Control of the Court 103

90 Making of order to arrest 103

91 Defendant may apply for relief 104

92 Endorsement on order 104

93 Restrictions on execution of order 104

94 Execution on a Sunday 105

95 Privilege from arrest 105

96 Misdescription of defendant 105

97 Costs 105

98 Discharge of defendant 106

99 Date of arrest 106

100 Fees 106

Division 7—Interest on judgment 107

101 Interest on judgment 107

Division 8—Wards of Court 107

102 Minors to become wards only by order 107

Division 9—Quashing by-laws 108

103 Proceeding to test legality of by-laws 108

Part 7—Associate Judges and officers of the Court 109

Division 1—Appointments of Associate Judges 109

104 Appointment of Associate Judges 109

104A Pension entitlements of Associate Judges, their partners and children 111

104AB Effect of part-time service arrangement on pensions of Associate Judges 118

104B Election of Associate Judges to commute future pensions for payment of superannuation contributions surcharge 120

104C Actuary's first calculation after election of Associate Judges to commute pensions 120

104D Actuary's second calculation after election of Associate Judges to commute pensions and payment of lump sums 122

104E Election of former Associate Judges to commute pensions for payment of superannuation contributions surcharge 124

104F Actuary's calculation after former Associate Judges' election to commute pensions 125

104G Payment and commutation of pensions of former Associate Judges 125

104H Election of Associate Judges' partners and eligible children to commute pensions for payment of superannuation contributions surcharge 127

104I Actuary's calculation of reduction of pensions of Associate Judges' partners and eligible children 128

104J Payment and commutation of pensions of former Associate Judges' partners and eligible children 129

104JA Entry into part-time service arrangement 130

104JB Variation of part-time service arrangement 131

104JC Termination of part-time service arrangement 131

104JD Associate Judges serving under part-time service arrangement not to engage in legal practice or other paid employment 131

105 Acting Associate Judges 132

105A Acting Senior Master 133

Division 1A—Reserve Associate Judges 133

105B Appointment of reserve Associate Judges 133

105C Cessation of office 134

105D Chief Justice may engage reserve Associate Judge to undertake duties of Associate Judge 134

105E Powers, jurisdiction, immunities and protection of reserve Associate Judge 135

105F Pension rights and service not affected by being a reserve Associate Judge 135

105G Engaging in legal practice or other paid employment 136

105H Power to complete matters—Associate Judges and reserve Associate Judges 136

105I Constitution of Court in certain circumstances 139

Division 1B—Appointments of other officers 139

106 Power to employ chief executive officer, prothonotary etc. 139

107 Certain office holders to be deputies 140

108 Powers of deputies 140

109 Appointment of bailiffs and assistant bailiffs 140

Division 2—Functions of Associate Judges 141

109A Chief Justice responsible for business of Associate Judges 141

110 Functions of the Senior Master 142

111 Functions of Associate Judges 142

113 Common Funds 143

113A Common Fund No. 3 150

113B Senior Master to have certain powers of administrator 152

Division 2A—Judicial registrars 153

113C Assignment of duties 153

113D Guidelines relating to the appointment of judicial registrars 153

113E Recommendations for appointment of judicial registrars 154

113F Appointment by Governor in Council 154

113G Remuneration and terms and conditions of appointment 155

113GA Validation of certain past superannuation payments—judicial registrars 157

113GB Oath or affirmation of office 158

113H Resignation from office 158

113L Performance of duties by judicial registrar 159

Division 2B—Registrar of Court of Appeal and Registrar of Criminal Appeals 161

113N Chief Justice may assign judicial registrar to be Registrar of Court of Appeal and Registrar of Criminal Appeals 161

113O Functions of Registrar of the Court of Appeal 161

113P Functions of the Registrar of Criminal Appeals 162

Division 3—The sheriff 162

114 Definition 162

115 Functions of sheriff 163

119 Duties on arrest of civil debtors 163

120 Liability for wrongful imprisonment 165

123 Punishment for misconduct 166

Division 4—General 167

125 Extortion by and impersonation of court officials 167

127 Senior Master and court officials subject to audit for receipt of public money 167

128 Money held under Act may be invested 168

128A Supreme Court—limitation of jurisdiction 169

129 Regulations 169

Part 8—Transitionals and savings 173

139 Transitional and savings 173

139A Transitional provision 174

140 Transitional provision—Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 174

141 Transitional provision—Justice Legislation (Amendment) Act 2005 175

142 References 175

142A Regulations dealing with transitional matters—Courts Legislation Amendment (Associate Judges) Act 2008 175

143 Masters to become Associate Judges 176

144 Pension entitlements 178

145 Pending matters—Taxing Master 179

146 Pending matters—other courts and VCAT 180

147 Power to resolve transitional difficulties in proceedings 181

148 Regulations dealing with transitional matters—Courts Legislation Amendment (Costs Court and Other Matters) Act 2008 182

149 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2010 183

150 Regulations dealing with transitional matters—Courts Legislation Miscellaneous Amendments Act 2010 184

152 Savings—Open Courts Act 2013 185

153 Transitional—Courts and Other Justice Legislation Amendment Act 2013 185

154 Transitional provisions—Courts Legislation Miscellaneous Amendments Act 2014 185

155 Power to resolve transitional difficulties in proceeding 186

156 Transitional and savings provisions—Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 187

156A Transitional provisions—COVID-19 Omnibus (Emergency Measures) Act 2020 187

Endnotes 189

1 General information 189

2 Table of Amendments 191

3 Explanatory details 203

Version No. 112

Supreme Court Act 1986

No. 110 of 1986

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1 Purpose

The purpose of this Act is—

(a) to amend and consolidate the law relating to the Supreme Court; and

(b) to amend the law of Victoria insofar as it relates to the procedure of the Supreme Court.

2 Commencement

This Act comes into operation on 1 January 1987.

3 Definitions

(1) In this Act—

S. 3(1) def. of actuary inserted by No. 19/2001 s. 19.

actuary means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Minister;

S. 3(1) def. of appropriate dispute resolution inserted by No. 47/2010 s. 80(b).

appropriate dispute resolution has the same meaning as it has in the Civil Procedure Act 2010;

S. 3(1) def. of Associate Judge inserted by No. 24/2008 s. 13(a), amended by No. 63/2013 s. 16(b).

Associate Judge means an Associate Judge appointed under section 104 and referred to in section 75(4) of the Constitution Act 1975 and, subject to this Act, and unless the context otherwise requires, includes a reserve Associate Judge engaged under section 105D to perform the duties of an Associate Judge during any period of engagement or acting under section 105H;

S. 3(1) def. of Australian lawyer inserted by No. 18/2005 s. 18(Sch. 1 item 103.1(a)), repealed by No. 17/2014 s. 160(Sch. 2 item 93.1(a)).

S. 3(1) def. of Chief Justice amended by No. 109/1994 s. 18(a).

Chief Justice includes Acting Chief Justice, and in the absence of the Chief Justice and the Acting Chief Justice means the senior Judge of the Court for the time being present[1];

costs includes fees, charges and disbursements;

S. 3(1) def. of Costs Court inserted by No. 78/2008 s. 3.

Costs Court means the Costs Court established by section 17C;

S. 3(1) def. of Costs Judge inserted by No. 78/2008 s. 3.

Costs Judge means an Associate Judge allocated to the Costs Court as a Costs Judge under section 17E;

S. 3(1) def. of costs registrar inserted by No. 78/2008 s. 3.

costs registrar means a person employed pursuant to section 106(ac) who has functions and powers under Division 2B of Part 2;

Court means the Supreme Court;

S. 3(1) def. of Court of Appeal inserted by No. 109/1994 s. 18(b).

Court of Appeal means the division of the Court called the Court of Appeal[2];

S. 3(1) def. of court official amended by Nos 35/1996 s. 453(Sch. 1 item 80.1(b)), 102/1997 s. 49(Sch.
item 5), 18/2005 s. 18(Sch. 1 item 103.1(b)), 24/2008 s. 13(b), 9/2009 s. 57.

court official means—

(a) an officer of the Court (except a person who is an officer of the Court only because he or she is an Australian lawyer); or

(b) any person employed in any of the offices of the Court; or

(c) any person employed in the chambers of a Judge or Associate Judge; or

(d) the sheriff or any other person acting in execution of any warrant or other process of the Court;

defendant includes every person served with any process or served with notice of or entitled to attend any proceeding;

S. 3(1) def. of domestic partner inserted by No. 4/2009 s. 37(Sch. 1 item 25.1).

domestic partner of a person means—

(a) a person who is, or was at the time of the person's death, in a registered domestic relationship with the person; or

(b) a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);

S. 3(1) def. of Full Court repealed by No. 109/1994 s. 18(c).[3]

S. 3(1) def. of Judge of Appeal inserted by No. 109/1994 s. 18(d), amended by No. 5/2013 s. 15(2)(a).

Judge of Appeal means the Chief Justice, the President, another Judge of Appeal or an additional Judge of Appeal appointed or acting under section 80B of the Constitution Act 1975[4] and, subject to this Act, and unless the context otherwise requires, includes a reserve Judge engaged under section 81B of the Constitution Act 1975 to undertake the duties of a Judge of Appeal during any period of engagement;

S. 3(1) def. of Judge of the Court inserted by No. 24/2008 s. 13(a), amended by Nos 5/2013 s. 15(2)(b), 63/2013 s. 16(c).

Judge of the Court means a Judge of the Court referred to in section 75(3) of the Constitution Act 1975 and, subject to this Act, and unless the context otherwise requires, includes a reserve Judge engaged under section 81B of the Constitution Act 1975 to undertake the duties of a Judge of the Court during any period of engagement or acting under section 81GA of that Act;

judgment includes order;

S. 3(1) def. of judicial registrar inserted by No. 34/2010 s. 9(1).

judicial registrar means a person appointed as a judicial registrar of the Court under Division 2A of Part 7;

S. 3(1) def. of judicial resolution conference inserted by No. 50/2009 s. 3, amended by No. 34/2010 s. 9(2), substituted by No. 47/2010 s. 80(a).

judicial resolution conference has the same meaning as it has in the Civil Procedure Act 2010;

landlord includes a lessor;

S. 3(1) def. of Law Institute repealed by No. 35/1996 s. 453(Sch. 1 item 80.1(a)).

S. 3(1) def. of law practice inserted by No. 18/2005 s. 18(Sch. 1 item 103.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 93.1(b)).

law practice has the same meaning as in the Legal Profession Uniform Law (Victoria);

S. 3(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 103.1(a)), amended by No. 17/2014 s. 160(Sch. 2 item 93.1(c)).

legal practitioner means an Australian legal practitioner;

S. 3(1) def. of Master substituted by No. 109/1994 s. 18(e), repealed by No. 24/2008 s. 13(c).

S. 3(1) def. of non-contentious business repealed by No. 35/1996 s. 453(Sch. 1 item 80.1(a)).

S. 3(1) def. of part-time service arrangement inserted by No. 63/2013 s. 62.

part-time service arrangement means—

(a) in relation to a Judge of the Court, an arrangement entered under section 75C of the Constitution Act 1975;

(b) in relation to an Associate Judge, an arrangement entered under section 104JA;

S. 3(1) def. of partner inserted by No. 4/2009 s. 37(Sch. 1 item 25.1), substituted by No. 40/2010 s. 105.

partner of a person means the person's spouse or domestic partner;

party includes every person served with notice of or attending any proceeding, whether named on the record or not;

plaintiff includes every person claiming any relief (otherwise than by way of counterclaim as a defendant) against any other person in a proceeding;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 162.1).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3(1) def. of President inserted by No. 109/1994 s. 18(f).

President means the President of the Court of Appeal[5];

proceeding means any matter in the Court other than a criminal proceeding;

S. 3(1) def. of reserve Associate Judge inserted by No. 63/2013 s. 16(a).

reserve Associate Judge means a person appointed under section 105B;

S. 3(1) def. of reserve Judge inserted by No. 5/2013 s. 15(1).

reserve Judge means a person appointed under section 81 of the Constitution Act 1975;

S. 3(1) defs of solicitor, solicitor-client agreement repealed by No. 35/1996 s. 453(Sch. 1 item 80.1(a)).

S. 3(1) def. of spouse inserted by No. 4/2009 s. 37(Sch. 1 item 25.1).

spouse of a person means a person to whom the person is, or was at the time of the person's death, married;

subordinate instrument has the same meaning as in the Interpretation of Legislation Act 1984;

S. 3(1) def. of super-annuation contributions surcharge inserted by No. 19/2001 s. 19.

superannuation contributions surcharge means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 of the Commonwealth;

S. 3(1) def. of super-annuation contributions surcharge notice inserted by No. 19/2001 s. 19.

superannuation contributions surcharge notice means a notice issued by the Commissioner of Taxation under section 15(7) of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 of the Commonwealth;

tenant includes a lessee and any other person deriving title under a lease;

the Rules means the Rules of Court made by the Judges of the Court whether under the powers conferred by this Act or otherwise;

S. 3(1) def. of total pension entitlement inserted by No. 19/2001 s. 19.

total pension entitlement means, on a particular day, the current value of all future pension payments on that day;

S. 3(1) def. of Trial Division inserted by No. 109/1994 s. 18(g).

Trial Division means the division of the Court called the Trial Division[6];

vessel includes any ship, boat or other vessel used for any purpose on the sea or in navigation.

(2) In this or any other Act or enactment or any subordinate instrument or other instrument a reference to a rule or decree of the Court is to be taken as a reference to an order of the Court.

S. 3(3) amended by No. 51/2000 s. 11(a).

(3) If by this or any other Act or enactment or by any subordinate instrument or other instrument a procedure is prescribed for or in relation to any proceeding in the Court or for or in relation to any step or process in such a proceeding and the Chapter I of the Rules of the Supreme Court prescribe a procedure that is applicable to such a proceeding or step or process, the procedure prescribed by those Rules applies despite the provisions of that Act, enactment, subordinate instrument or other instrument.

S. 3(4) amended by No. 51/2000 s. 11(a).

(4) A proceeding to which the Chapter I of the Rules of the Supreme Court apply must, despite anything in any Act or enactment, be commenced and conducted in accordance with those Rules and not otherwise.

S. 3(5) amended by No. 51/2000 s. 11(a).

(5) A judgment in any proceeding must be enforced in accordance with the Chapter I of the Rules of the Supreme Court and not otherwise.

(6) In this or any other Act or enactment or any subordinate instrument or other instrument a reference to a writ of prohibition, mandamus, certiorari or ne exeat colonia by which the Court had before the commencement of this Act jurisdiction to grant any relief or remedy is, subject to subsection (7), to be taken as a reference to the judgment or order by which the Court may after that commencement grant that relief or remedy under this Act and the Rules.

(7) Subsection (6) does not apply to a reference to a writ of habeas corpus.

S. 3(8) inserted by No. 4/2009 s. 37(Sch. 1 item 25.2).

(8) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered domestic relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

4 Abolition of distinction between court and chambers

(1) The distinction between court and chambers is abolished.

(2) Nothing in subsection (1) alters the practice and procedure of the Court with respect to business that can be conducted otherwise than in open court.

(3) The business of the Court, whether conducted in court or otherwise, is to be taken to be conducted in court.

(4) If by or under this or any other Act in force immediately before the commencement of this Act any jurisdiction, power or authority is vested in a Judge of the Supreme Court—

(a) that jurisdiction, power or authority may be exercised in accordance with this Act and the Rules by the Court in all respects as that Judge might have done; and

(b) the Court constituted in accordance with this Act and the Rules has jurisdiction, power or authority co-ordinate with the jurisdiction, power or authority of the Judge.

(5) If by or under this or any other Act in force immediately before the commencement of this Act any jurisdiction, power or authority is vested in the Court or in any Judge by the use of the words "the Court", "the Court or a Judge", "the Supreme Court or any Judge thereof" or "a Judge of the Supreme Court" or by any words referring to the Court or to any Judge, that jurisdiction, power or authority may be exercised by the Court in accordance with this Act and the Rules.

(6) Subsection (5) has effect even if the Act vesting jurisdiction, power or authority in the Court or in any Judge designates the Court or Judge as the court, judge, arbitrator or person appointed to hear and determine any matter and even if the determination is expressed to be final or without appeal, but if the determination is expressed to be final or without appeal an appeal does not lie from a determination of the Court.

5 Criminal procedure

Subject to any express enactment to the contrary and to the Rules, the practice and procedure in all criminal proceedings in the Court is that existing immediately before the commencement of this Act.

Part 2—Sittings, powers and procedures

Division 1—Sittings

No. 6387 s. 50.

6 Where Court to be held

(1) The Court is to be held at such places as the Governor in Council by Order published in the Government Gazette directs.

(2) The Governor in Council may by Order published in the Government Gazette direct that the Court shall cease to be held at any place and may subsequently direct that it shall be again held at that place.

No. 6387 s. 45.

7 Time and place of sitting

Subject to the Rules, the Court may sit and act at any time and place.

Ss 8, 9 repealed by No. 109/1994 s. 19.[7]

S. 9A
inserted by No. 35/1996 s. 453(Sch. 1 item 80.2), amended by No. 24/2008 s. 14.

9A Robing of Judges

All matters pertaining to the robing of Judges of the Court are to be determined by the Chief Justice after consultation with the Council of the Judges.

S. 9B inserted by No. 24/2008 s. 15.

9B Titles of Associate Judges

Subject to this Act, the Chief Justice, after consultation with the Council of Judges, may determine all matters pertaining to the title of any Associate Judge.

S. 9C inserted by No. 34/2010 s. 10.

9C Titles of judicial registrars

Subject to this Act, the Chief Justice, after consultation with the Council of Judges, may determine all matters pertaining to the title of any judicial registrar.

Pt 2 Div. 2 (Heading and ss 10–17) substituted as Pt 2 Div. 2 (Heading and ss 10–16) by No. 109/1994 s. 20.

Division 2—Court of Appeal[8]

No. 6387 s. 42.

S. 10 substituted by No. 109/1994 s. 20.

10 Jurisdiction and powers

(1) Subject to this Act, the Court of Appeal has jurisdiction to hear and determine—

S. 10(1)(a) amended by No. 24/2008 s. 16(1).

(a) all appeals from the Trial Division constituted by a Judge of the Court;

S. 10(1)(ab) inserted by No. 24/2008 s. 16(2).

(ab) all appeals from the Trial Division constituted by an Associate Judge which the Rules specify are to be heard and determined by the Court of Appeal;

S. 10(1)(ac) inserted by No. 78/2008 s. 4.

(ac) without limiting paragraph (ab), all appeals from the Costs Court constituted by a Costs Judge which the Rules specify are to be heard and determined by the Court of Appeal;

(b) all applications for new trials;

S. 10(1)(c) amended by No. 24/2008 s. 16(3).

(c) all appeals from the County Court constituted by a Judge of that Court;

(d) all appeals, applications, questions and other matters, whether civil or criminal, which, by or under an Act—

(i) immediately before the commencement of section 20 of the Constitution (Court of Appeal) Act 1994, were required or authorised to be heard or disposed of by the Full Court of the Supreme Court (including any such matter pending, but the hearing of which by the Full Court had not commenced, before that commencement); or

(ii) are referred to or reserved for the consideration of, or directed to be brought for argument before, the Court of Appeal.

(2) The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act.

(3) The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the Court.

No. 6387 s. 34.

S. 11 substituted by No. 109/1994 s. 20.

11 Way in which Court of Appeal may be constituted

S. 11(1) substituted by No. 64/1996 s. 41(1).

(1) Subject to this Act and the Rules, any 3 or more Judges of Appeal constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.

S. 11(1A) inserted by No. 64/1996 s. 41(1).

(1A) If the President of the Court of Appeal so determines in a particular case, 2 Judges of Appeal constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.

S. 11(1B) inserted by No. 64/1996 s. 41(1).

(1B) The Rules may provide that in particular classes of applications or appeals to or proceedings in the Court of Appeal, 2 Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.

S. 11(1C) inserted by No. 62/2014 s. 3(1).

(1C) Subject to subsection (9), the Rules may provide that a single Judge of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal—

(a) in particular kinds of applications and appeals to or proceedings in the Court of Appeal; or

(b) generally.

(2) More than one sittings of the Court of Appeal may be held at the same time.

(3) When more than one sittings of the Court of Appeal are held at the same time, the jurisdiction and powers of the Court of Appeal may be exercised at each sittings.

S. 11(4) amended by Nos 24/2007 s. 10(2), 24/2008 s. 17, 62/2014 s. 3(2).

(4) The Rules may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of applications or proceedings, be exercised by an Associate Judge.

S. 11(4A) inserted by No. 34/2010 s. 11(1).

(4A) Subject to this Act, the Rules may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of applications or proceedings be exercised by a judicial registrar if—

(a) the matter is a kind of proceeding for which provision is made by the Rules for the Court of Appeal to be constituted by a judicial registrar; and

(b) the Rules provide for the delegation to judicial registrars of powers of the Court of Appeal to hear and determine such a matter or proceeding.

S. 11(4B) inserted by No. 62/2014 s. 3(3).

(4B) The Rules may provide that in particular kinds of applications, appeals or proceedings, the Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal.

S. 11(5) amended by No. 64/1996 s. 41(2), substituted by No. 24/2007 s. 10(3), amended by Nos 24/2008 s. 17, 34/2010 s. 11(2), 62/2014 s. 3(4).

(5) The Court of Appeal may discharge or vary a judgment, order or direction given or made by an Associate Judge or a judicial registrar.

S. 11(6) amended by Nos 64/1996 s. 41(3), 62/2014 s. 3(5).

(6) Unless the Court of Appeal discharges or varies a judgment, order or direction in accordance with any Rules made under subsection (4B), a judgment, order or direction given or made by a single Judge of Appeal has effect as a judgment, order or direction of the Court of Appeal.

S. 11(7) inserted by No. 24/2007 s. 10(4), amended by No. 24/2008 s. 17.

(7) Subject to subsection (5), a judgment, order or direction given or made by an Associate Judge when exercising the jurisdiction and powers of the Court of Appeal has effect as a judgment, order or direction of the Court of Appeal.

S. 11(8) inserted by No. 34/2010 s. 11(3).

(8) Subject to subsection (5), a judgment, order or direction given or made by a judicial registrar when exercising the jurisdiction and powers of the Court of Appeal has effect as a judgment, order or direction of the Court of Appeal.

S. 11(9) inserted by No. 62/2014 s. 3(6).

(9) Subsection (1C) does not apply in relation to—

(a) an appeal from a refusal to grant habeas corpus; or

S. 11(9)(b) amended by No. 27/2018 s. 367(1).

(b) an appeal under the Serious Offenders Act 2018.

ss 36(3), 38.

S. 12 substituted by No. 109/1994 s. 20.

12 Opinions equally divided

(1) If an appeal or other matter has been heard by the Court of Appeal constituted by 2 Judges of Appeal and the Judges differ in opinion, the appeal or other matter must be re-heard before the Court of Appeal constituted by more than 2 Judges.

(2) If an appeal or other matter has been heard by the Court of Appeal constituted by more than 2 Judges of Appeal and the Judges are equally divided in opinion, the judgment of the Court must be given in accordance with the opinion of the senior Judge of Appeal then present.

No. 6387 s. 35.

S. 13 substituted by No. 109/1994 s. 20.

13 Judges not to sit on appeal from their own judgments

Except where otherwise expressly enacted, a Judge of Appeal must not sit on the hearing of an appeal from a judgment of the Trial Division constituted by that Judge or on the hearing of an application for a new trial of a proceeding tried before that Judge.

S. 13A inserted by No. 12/2001 s. 5.

13A When additional Trial Division Judge must not sit on hearing of new trial

A Judge of Appeal acting as an additional Judge of the Trial Division must not sit on the hearing of a new trial ordered by the Court if the Judge was one of the Judges that constituted the Court of Appeal that ordered the new trial.

ss 39, 40.

S. 14 substituted by No. 109/1994 s. 20.

14 Power of Court of Appeal on civil appeals

(1) The Court of Appeal, in hearing and determining an appeal in a proceeding in which there has been a trial by jury, may, despite any enactment or rule of law or practice to the contrary, give any judgment on the appeal that it might have given if the proceeding had been tried without a jury and the findings or verdict of the jury had been the findings of the Judge.

(2) An order for a new trial of a proceeding, whether the proceeding has been tried with a jury or without a jury, may be limited to the question of damages only or to the question of liability only even if at the trial there was an apportionment under the Wrongs Act 1958 or any other enactment.

S. 14A inserted by No. 62/2014 s. 4.

14A Leave to appeal required for civil appeals

(1) Subject to subsection (2), any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

(2) Leave to appeal is not required—

(a) for an appeal from a refusal to grant habeas corpus; or

S. 14A(2)(b) amended by No. 27/2018 s. 367(2).

(b) for an appeal under the Serious Offenders Act 2018; or

S. 14A(2)(ba) inserted by No. 1/2022 s. 25.

(ba) for an appeal from a judgment or an order of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or

(c) if the Rules provide that leave to appeal is not required, whether in any particular class of application or proceeding or generally.

(3) For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

S. 14B inserted by No. 62/2014 s. 4.

14B Commencing a civil appeal

(1) An applicant for leave to appeal under section 14A must file an application for leave to appeal within 28 days from the date of the judgment, order, determination or other decision which is the subject of appeal unless the Rules otherwise provide.

(2) Unless this Act, any other Act or the Rules otherwise provide, an application for leave to appeal is commenced by filing the application for leave to appeal.

S. 14C inserted by No. 62/2014 s. 4.

14C Appeal must have real prospect of success

The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.

S. 14D inserted by No. 62/2014 s. 4.

14D Determination of application for leave to appeal

(1) The Court of Appeal constituted by one or more Judges of Appeal may determine an application for leave to appeal under section 14A with or without an oral hearing of the parties.

(2) Subject to subsection (3), if the Court of Appeal dismisses an application for leave to appeal without an oral hearing, the applicant, in accordance with the Rules, may apply to have the dismissal set aside or varied at an oral hearing before the Court of Appeal constituted by two or more Judges of Appeal.

(3) If the Court of Appeal dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.

(4) This section does not apply to—

(a) an appeal from a refusal to grant habeas corpus; or

S. 14D(4)(b) amended by No. 27/2018 s. 367(3).

(b) an appeal under the Serious Offenders Act 2018.

ss 37, 44.

S. 15 substituted by No. 109/1994 s. 20.

15 Constitution of Court if one Judge of Appeal unable to continue

(a) after the Court of Appeal (including the Court constituted under this section) has started the hearing, or further hearing, of a proceeding; and

(b) before the proceeding has been determined—

one of the Judges of Appeal constituting the Court of Appeal dies, resigns as a Judge or otherwise becomes unable to continue as a member of the Court for the purposes of the proceeding, the hearing and determination of the proceeding may be finished by the remaining Judges constituting the Court if at least 2 Judges remain and the parties consent.

(2) The Court of Appeal constituted under this section may have regard to any evidence given or received, and arguments adduced, by or before the Court of Appeal as previously constituted.

(3) Any question in the proceeding is to be decided in the same way, and the judgment of the Court of Appeal constituted under this section has the same force and effect, as if the Court were not constituted under this section.

No. 6387 s. 46.

S. 16 substituted by No. 109/1994 s. 20, amended by No. 16/2016 s. 207.

16 Arrangement of business of Court of Appeal

Subject to section 28AAA, the President is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the Court of Appeal.

Pt 2 Div. 2A (Heading and ss 17–17B) inserted by No. 109/1994 s. 20.

Division 2A—Trial Division[9]

s. 19A.

S. 17 (Heading) inserted by No. 24/2008 s. 18(1).

S. 17 substituted by No. 109/1994 s. 20.

17 Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge

S. 17(1) amended by No. 24/2008 s. 18(2).

(1) The Trial Division constituted by a Judge of the Court may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal.

S. 17(1A) inserted by No. 24/2008 s. 18(3).

(1A) The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined—

(a) by the Court of Appeal; or

(b) by the Trial Division constituted by a Judge of the Court.

S. 17(2) amended by No. 24/2008 s. 18(4).

(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.

Note to s. 17(2) inserted by No. 62/2014 s. 5.

See, for example, section 14A which requires leave of the Court of Appeal for civil appeals as defined in that section.

S. 17(3) inserted by No. 24/2008 s. 18(5).

(3) Unless otherwise expressly provided by this Act or any other Act or the Rules, an appeal lies to the Trial Division constituted by a Judge of the Court from any determination of the Trial Division constituted by an Associate Judge.

S. 17(4) inserted by No. 5/2013 s. 16, repealed by No. 63/2013 s. 17.

S. 17AA inserted by No. 34/2010 s. 12, amended by No. 68/2012 s. 6.

17AA Business may be disposed of by judicial registrars if Rules so permit

Without limiting section 17, the Trial Division of the Court constituted by a judicial registrar may hear and determine any matter, whether civil or criminal, if—

S. 17AA(a) substituted by No. 68/2012 s. 6.

(a) the matter falls within a particular class of matters and provision is made by the Rules for the Court constituted by a judicial registrar to hear and determine a matter of that class; or

S. 17AA(b) substituted by No. 68/2012 s. 6.

(b) provision is made by the Rules for a Judge or an Associate Judge to refer any matter (whether or not it falls within a particular class of matter) to a judicial registrar for hearing and determination and a Judge or an Associate Judge so refers the matter—

and the Rules provide for the delegation to judicial registrars of all or any powers of the Court in relation to the hearing and determination of such a matter or class of matter.

S. 17A inserted by No. 109/1994 s. 20.

17A Restriction on appeals

S. 17A(1) amended by No. 24/2008 s. 19(1)(a), repealed by No. 62/2014 s. 6(1)(a).

S. 17A(2) amended by Nos 24/2008 s. 19(1)(b), 34/2010 s. 13(1).

(2) Subject to subsection (2A), an order made by the Trial Division constituted otherwise than by a Judge of the Court—

(a) by consent of the parties; or

(b) as to costs which are in the discretion of the Trial Division—

is not subject to appeal to the Trial Division constituted by a Judge of the Court except by leave of the Trial Division constituted by a Judge of the Court or by leave of the person constituting the Trial Division which made the order.

S. 17A(2A) inserted by No. 34/2010 s. 13(2).

(2A) Subsection (2) does not apply in respect of an order made by the Trial Division constituted by a judicial registrar.

See section 113M.

S. 17A(3) amended by Nos 24/2008 s. 19(1)(c), 68/2009 s. 97(Sch. item 116.1).

(3) Except as provided in Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009, an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment.

S. 17A(3A) inserted by No. 51/2000 s. 10, amended by Nos 24/2008 s. 19(1)(d), 62/2014 s. 6(1)(b).

(3A) An order made by the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge on an appeal to the Court—

(a) under section 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998; or

S. 17A(3A)(ab) inserted by No. 68/2009 s. 97(Sch. item 116.2(a)).

(ab) under section 272 of the Criminal Procedure Act 2009; or

S. 17A(3A)(b) amended by No. 68/2009 s. 97(Sch. item 116.2(b)).

(b) under section 109 of the Magistrates' Court Act 1989—

is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal.

S. 17A(3B) inserted by No. 51/2000 s. 10.

(3B) Subsection (3A) applies only to an order made on an appeal instituted after the commencement of section 10 of the Courts and Tribunals Legislation (Further Amendment) Act 2000.

S. 17A(3C) inserted by No. 68/2013 s. 9(1), amended by No. 62/2014 s. 6(1)(c)(i).

(3C) An order made by the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge on an application under section 459G of the Corporations Act to set aside a statutory demand is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal.

S. 17A
(3C)(a)(b) repealed by No. 62/2014 s. 6(1)(c)(ii).

S. 17A(4) amended by Nos 68/2009 s. 97(Sch. item 116.3), 80/2012 s. 139(1).

(4) Subject to subsection (4A) or (4B), an appeal does not lie to the Court of Appeal—

(a) from an order allowing an extension of time for appealing from a judgment; or

S. 17A(4)(b) amended by Nos 44/2001 s. 3(Sch. item 107), 24/2008 s. 19(1)(e), substituted by No. 62/2014 s. 6(1)(d).

(b) without leave of the Court of Appeal, from a judgment or an order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge of the Court or by an Associate Judge in a criminal proceeding or quasi-criminal proceeding except in the following cases—

(i) when the liberty of the subject or the custody of minors is concerned;

(ii) a decision dismissing a proceeding for want of prosecution;

(iii) any cases prescribed by the Rules.

S. 17A(4A) inserted by No. 68/2009 s. 97(Sch. item 116.4).

(4A) Subsection (4)(b) does not apply to an interlocutory appeal under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009.

S. 17A(4B) inserted by No. 80/2012 s. 139(2), amended by No. 37/2024 s. 115.

(4B) Subsection (4)(b) does not apply to an application under Part 2, 4 or 5 of the Criminal Organisations Control Act 2012.

S. 17A(4C) inserted by No. 68/2013 s. 9(2).

(4C) Subsection (4)(b) does not apply to an application referred to in subsection (3C).

S. 17A(5) repealed by No. 62/2014 s. 6(1)(a).

(6) An appeal does not lie to the Court of Appeal from an order giving unconditional leave to defend a proceeding.

S. 17A(7) amended by Nos 24/2008 s. 19(1)(f), 68/2009 s. 97(Sch. item 116.5), repealed by No. 62/2014 s. 6(2).

S. 17B inserted by No. 109/1994 s. 20.

17B Reference of matters to Court of Appeal

(1) Any case or question in a case which for any reason is deemed fit to be re-argued before decision or to be re-heard before final judgment, may be argued before the Court of Appeal, if the Trial Division so directs.

S. 17B(2) amended by No. 24/2008 s. 19(2).

(2) The Trial Division constituted by a Judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.

(3) If a case, question or proceeding is reserved for the consideration of the Court of Appeal, or is directed by the Trial Division to be argued before it the Court of Appeal and—

(a) the Court of Appeal gives leave, the case, proceeding or question may be considered by, or argued before, the Court of Appeal; or

(b) the Court of Appeal refuses leave, the case, proceeding or question must be remitted to the Trial Division for determination by it.

Pt 2 Div. 2B (Heading and ss 17C–17K) inserted by No. 78/2008 s. 5.

Division 2B—Costs Court

S. 17C inserted by No. 78/2008 s. 5.

17C Costs Court established

(1) The Costs Court is established within the Trial Division of the Supreme Court.

(2) The Costs Court consists of such Associate Judges as are from time to time allocated to the Costs Court by the Chief Justice.

S. 17D inserted by No. 78/2008 s. 5.

17D Powers and functions of Costs Court

(1) The Costs Court—

(a) has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in all proceedings in the Court;

(b) has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in—

(i) the County Court;

(ii) the Magistrates' Court;

(iii) VCAT—

if, by or under any Act, the Rules or the Rules of those courts or VCAT, costs are to be assessed, settled, taxed or reviewed by the Costs Court;

(c) has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in—

(i) the County Court;

(ii) the Magistrates' Court;

(iii) VCAT—

if, by any order of a court or VCAT, costs are to be assessed, settled, taxed or reviewed by the Costs Court;

(d) has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in the County Court, the Magistrates' Court or VCAT, as the case requires, in which—

(i) there is an entitlement to costs by or under any Act, the Rules of the County Court, the Magistrates' Court or VCAT or arising from an order of the County Court, the Magistrates' Court or VCAT; and

(ii) the amount of those costs has not been fixed by the court or by VCAT;

S. 17D(1)(e) amended by No. 50/2011 s. 46(Sch. item 14.1).

(e) has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in an arbitration, subject to the Commercial Arbitration Act 2011;

S. 17D(1)(ea) inserted by No. 17/2014 s. 160(Sch. 2 item 93.2(a)).

(ea) must conduct costs assessments under Division 7 of Part 4.3 of the Legal Profession Uniform Law (Victoria);

(f) must hear and determine costs reviews under Division 7 of Part 3.4 of Chapter 3 of the Legal Profession Act 2004;

Note to S. 17D(1)(f) inserted by No. 17/2014 s. 160(Sch. 2 item 93.2(b)).

See clause 18 of Schedule 4 to the Legal Profession Uniform Law (Victoria).

(g) must hear and determine any reviews under Division 5 of Part 4 of the Legal Practice Act 1996;

See clause 3.1 of Part 3 of Schedule 2 to the Legal Profession Act 2004.

(h) has any other jurisdiction in relation to costs given to it—

(i) by or under this Act or any other Act; or

(ii) by the Rules; or

(iii) by the Rules of another court or of a tribunal.

(2) The Costs Court has such powers of the Court as are necessary to enable it to exercise its jurisdiction.

(3) The Costs Court must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Rules and the proper consideration of the matters before the Court permit.

(4) Subject to this Act and the Rules, the Costs Court may regulate its own procedure.

S. 17E inserted by No. 78/2008 s. 5.

17E Chief Justice to allocate Associate Judges as Costs Judges

(1) The Chief Justice must allocate an Associate Judge to be a Costs Judge of the Costs Court.

(2) The Chief Justice may allocate more than one Associate Judge as a Costs Judge to the Costs Court if the operational requirements of the Costs Court so require.

S. 17EA inserted by No. 34/2010 s. 14.

17EA Chief Justice may assign judicial registrars to Costs Court

The Chief Justice may assign one or more judicial registrars to the Costs Court if the operational requirements of the Costs Court so require.

S. 17F (Heading) amended by No. 34/2010 s. 15(1).

S. 17F inserted by No. 78/2008 s. 5.

17F Costs Judge may direct judicial registrars and costs registrars

Subject to this Act or any other Act, the Rules and any order of the Court, a Costs Judge—

S. 17F(a) amended by No. 34/2010 s. 15(2)(a).

(a) may direct that costs, or costs of a specific class or kind, be assessed, settled, taxed or reviewed by a judicial registrar or a costs registrar;

S. 17F(b) amended by No. 34/2010 s. 15(2)(b).

(b) may give general directions as to case management by judicial registrars or costs registrars.

S. 17G inserted by No. 78/2008 s. 5.

17G Powers and functions of costs registrar

(1) Subject to the general direction and control of a Costs Judge, a costs registrar may—

(a) assess, settle, tax or review costs in accordance with directions under section 17F and the Rules; and

(b) exercise the powers of the Costs Court conferred on a costs registrar by or under this Act or any other Act or by the Rules.

(2) In the performance of his or her duties as a costs registrar and the exercise of the powers of the Costs Court under subsection (1), a costs registrar is not subject to direction or control under the Public Administration Act 2004 or of any person or body.

(3) Subject to sections 17H and 17J, a determination made by a costs registrar—

(a) has effect as a judgment, an order or a direction (as the case requires) of the Costs Court; and

S. 17G(4) repealed by No. 64/2010 s. 65.

S. 17GA inserted by No. 34/2010 s. 16.

17GA Powers and functions of judicial registrar in Costs Court

(1) Subject to the Rules and the general direction and control of a Costs Judge, a judicial registrar may—

(a) assess, settle, tax or review costs in accordance with directions under section 17F and the Rules; and

(b) exercise the powers of the Costs Court conferred on a judicial registrar by or under this Act or any other Act or by the Rules.

(2) Subject to sections 17H and 17J, a determination made by a judicial registrar in the Costs Court—

(a) has effect as a judgment, an order or a direction (as the case requires) of the Costs Court; and

S. 17H inserted by No. 78/2008 s. 5, substituted by No. 34/2010 s. 17.

17H Review of costs registrar's determination by judicial registrar

(1) Subject to the Rules, a party who objects to a determination made by a costs registrar in accordance with this Division may apply to the Costs Court constituted by a judicial registrar for a review of that determination.

(2) An application for review under subsection (1) is to be made—

(3) The Costs Court constituted by a judicial registrar or by a Costs Judge, on its own motion, may review a determination of a costs registrar made in accordance with this Division.

(4) A review under subsection (3) is to be made—

(5) A review under this section is to be heard and determined in accordance with the Rules.

(6) Unless the Costs Court otherwise orders, a review of a costs registrar's determination under this section does not operate as—

(a) a stay of execution; or

(b) a stay of the proceedings under the determination of the costs registrar to which the review relates.

S. 17HA inserted by No. 34/2010 s. 17.

17HA Review of judicial registrar's determination by Costs Judge

(1) Subject to the Rules, a party who objects to a determination made by a judicial registrar in accordance with this Division (including a review under section 17H) may apply to the Costs Court constituted by a Costs Judge for a review of that determination.

(2) An application for review under subsection (1) is to be made—

(3) The Costs Court constituted by a Costs Judge, on its own motion, may review a determination of a judicial registrar made in accordance with this Division.

(4) A review under subsection (3) is to be made—

(5) A review under this section is to be heard and determined in accordance with the Rules.

(6) Unless the Costs Court otherwise orders, a review of a judicial registrar's determination under this section does not operate as—

(a) a stay of execution; or

(b) a stay of the proceedings under the determination of the judicial registrar to which the review relates.

S. 17I inserted by No. 78/2008 s. 5.

17I Appeals

Unless otherwise expressly provided for by this Act or any other Act or the Rules, an appeal lies to the Trial Division constituted by a Judge of the Court from a determination of the Costs Court constituted by a Costs Judge.

S. 17J inserted by No. 78/2008 s. 5.

17J Costs in proceedings in another court or VCAT

(1) An order of the Costs Court as to costs made in the exercise of its jurisdiction under section 17D(1)(b), (c) or (d)—

S. 17J(1)(a) amended by No. 34/2010 s. 51.

(a) is taken to be an order of that other court or VCAT; and

(2) In the exercise of its jurisdiction under section 17D(1)(b), (c) or (d), the Costs Court may assess, settle, tax or review costs in accordance with—

(a) the Rules; or

(b) the Rules, including any scales of costs, of the court in which the proceeding to which the costs relate originated or of VCAT, as the case requires.

S. 17K inserted by No. 78/2008 s. 5.

17K Transfer of file

If the Costs Court is exercising its jurisdiction in relation to costs in a proceeding which originated in the County Court, the Magistrates' Court or VCAT, the court in which the proceeding originated or VCAT, as the case requires, must cause the record and all documents relating to the proceeding to which the costs relate to be sent to the Costs Court for the purposes of the hearing and determination of the assessment, settling, taxation or review of costs in that proceeding.

Division 3—Powers

S. 18 repealed by No. 58/2013 s. 54.

S. 19 amended by Nos 8/1991 s. 19(1), 10/1999 s. 25, 68/2009 s. 97(Sch. item 116.6), 30/2010 s. 94, repealed by No. 58/2013 s. 54.

No. 6387 s. 29A.

20 Offence to publish certain information concerning proceedings

A person must not, in the course of a business of publishing information concerning debtors, publish or cause to be published in any newspaper, gazette, journal, periodical circular, newsletter, letter or like document information concerning the commencement of a proceeding for debt so as to identify the defendant before judgment is given in the proceeding.

1. 100 penalty units.

Note to s. 20 inserted by No. 58/2013 s. 55.

The Open Courts Act 2013 governs suppression orders and closed court orders generally in relation to the Court.

S. 20A inserted by No. 109/1994 s. 21.

20A Power to act in cases relating to rates and taxes[[10]](#endnote-11)

S. 20A(1) amended by No. 24/2008 s. 20.

(1) A Judge, Associate Judge or officer of the Court is not incapable of acting in any proceeding by reason of being one of a class of ratepayers or one of any other class of persons liable in common with others to contribute to or be benefited by any rate or tax which may be affected by that proceeding.

(2) In this section rate or tax means any rate, tax, duty or assessment, whether public, general or local and includes—

(a) any fund formed from the proceeds of any such rate, tax, duty or assessment; and

(b) any fund applicable for purposes the same as, or similar to, those for which the proceeds of any such rate, tax, duty or assessment might be applied.

S. 21 amended by Nos 64/1996 s. 42, 71/2003 s. 3, 18/2005 s. 18(Sch. 1 item 103.2), 24/2008 s. 21, repealed by No. 42/2014 s. 102.

No. 6387 s. 30.

22 Execution of instruments by order of Court

(1) If a person fails or refuses to comply with a judgment directing that person to execute a document or indorse a negotiable instrument, the Court may, on such terms and conditions as it considers just, order that the document be executed or that the instrument be indorsed by a person nominated by the Court.

(2) A document or instrument executed and indorsed under subsection (1) operates and is for all purposes available as if it had been executed or indorsed by the person originally directed to do so.

No. 6387 s. 24A.

23 Attachment of earnings

(1) Subject to and in accordance with the Rules, the Court may make orders for the attachment of the salary, wages or pension of any person.

(2) Any person who dismisses an employee or injures an employee in the employee's employment or alters an employee's position to the prejudice of the employee by reason of the circumstance that an attachment order has been made in relation to the employee or that the employee is required to make payments under an attachment order may be dealt with as for contempt of court.

No. 6387 s. 32.

24 Costs to be in the discretion of Court

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

S. 24A inserted by No. 64/1996 s. 43, amended by No. 50/2009 s. 4.

24A Mediation[[11]](#endnote-12)

Where the Court refers a proceeding or any part of a proceeding to mediation, other than judicial resolution conference, unless all the parties who attend the mediation otherwise agree in writing, no evidence shall be admitted at the hearing of the proceeding of anything said or done by any person at the mediation.

New s. 24B inserted by No. 33/2018 s. 63.

24B Court may issue or transmit court documents electronically

(1) Any order, judgment, process or other document that the Court, a Judge of the Court, an Associate Judge, a judicial registrar or a court official may issue or transmit under this Act or any other Act, statutory rule or other enactment or law may be issued or transmitted by electronic communication.

(2) If any provision of an Act, a statutory rule or other enactment or law in Victoria permits or requires any order, judgment, process or other document to be issued or transmitted by manual means, that requirement is taken to be met if the issuing or transmission occurs by electronic communication.

Example

If an Act or other law requires or permits the Court to sign or seal a document, the Court could use an electronic signature or electronic seal and the requirement is met in the same way as if he document had been signed or sealed by hand.

(3) Nothing in this section—

(a) limits the Court, a Judge of the Court, an Associate Judge, a judicial registrar or a court official from issuing or providing any order, judgment, process or other document in paper form; or

(b) affects or limits any practice, procedure or Rules of Court that provide for electronic processes in the Court; or

(c) affects or limits the power to make Rules of Court; or

(d) limits any other power of the Court, a Judge of the Court, an Associate Judge, a judicial registrar or a court official.

Pt 2 Div. 3A (Heading and ss 24B, 24C) inserted by No. 50/2009 s. 5, amended by No. 34/2010 s. 18, repealed by No. 47/2010 s. 81(1).

Pt 2 Div. 3B (Heading and ss 24D–24F) inserted by No. 64/2010 s. 66.

Division 3B—Immunities and protections

S. 24D inserted by No. 64/2010 s. 66.

24D Immunity and protection of Judge of Court extends to administrative functions

Without limiting any other law, whether written or unwritten, the immunity and protection that a Judge of the Court has in the performance of his or her duties as Judge extends and applies to the performance or exercise of an administrative function or power conferred on the Judge or on the Court by or under any Act or any other law.

S. 24E inserted by No. 64/2010 s. 66.

24E Immunity and protection of Associate Judges

Without limiting any other law, whether written or unwritten, an Associate Judge has in the performance of his or her duties as an Associate Judge, the same protection and immunity as a Judge of the Court has in the performance of his or her duties as a Judge.

S. 24F inserted by No. 64/2010 s. 66.

24F Immunity and protection of specified court officers

(1) A specified court officer has, in the performance of his or her duties as that officer in good faith, the same immunity and protection as a Judge of the Court has in the performance of his or her duties as Judge.

(2) In subsection (1) specified court officer means the following persons employed in accordance with section 106—

(a) the prothonotary;

(b) the registrar of probates;

(c) a registrar;

(d) a costs registrar;

(e) a deputy registrar;

(f) a deputy prothonotary;

(g) an assistant registrar of probates;

(h) a deputy costs registrar.

S. 24G inserted by No. 26/2012 s. 72.

24G Protection of assessors

An assessor called in for assistance in a proceeding under section 77 has, in the performance of his or her duties as an assessor in the proceeding, the same protection and immunity as a Judge of the Court has in the performance of his or her duties as a Judge.

Division 4—Court Rules

No. 6387 s. 25.

25 Power to make Rules[[12]](#endnote-13)

S. 25(1) amended by Nos 9/1995 s. 7(5), 5/2013 s. 17.

(1) The Judges of the Court (not including any reserve Judge) may make Rules of Court for or with respect to the following:

(a) Any matter dealt with in any Rules of Court in force on 1 January 1987;

S. 25(1)(ab) inserted by No. 47/2010 s. 82(a).

(ab) furthering the overarching purpose set out in the Civil Procedure Act 2010 and the conduct of civil proceedings in accordance with the principles set out in that Act, including the overarching obligations;

S. 25(1)(ac) inserted by No. 47/2010 s. 82(a).

(ac) the conduct of proceedings and parties to proceedings generally, including, but not limited to, the imposition of limits, restrictions or conditions on any party in respect of any aspect of the conduct of proceedings;

S. 25(1)(ad) inserted by No. 47/2010 s. 82(a).

(ad) case management;

S. 25(1)(ada) inserted by No. 25/2014 s. 9.

(ada) discovery and disclosure;

S. 25(1)(ae) inserted by No. 47/2010 s. 82(a).

(ae) any other matter or thing required or permitted by or under the Civil Procedure Act 2010 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;

S. 25(1)(af) inserted by No. 58/2013 s. 56.

(af) any other matter or thing required or permitted by or under the Open Courts Act 2013 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;

S. 25(1)(ag) inserted by No. 42/2014 s. 103.

(ag) any matter or thing required or permitted by or under the Vexatious Proceedings Act 2014 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act;

S. 25(1)(ah) inserted by No. 18/2018 s. 16.

(ah) the conduct of proceedings and parties to proceedings conducted in accordance with the Legal Identity of Defendants (Organisational Child Abuse) Act 2018, including, but not limited to—

(i) the imposition of limits, restrictions or conditions on any party (including proper defendants) in respect of any aspect of the conduct of those proceedings; and

(ii) the direction or ordering of parties (including proper defendants) to those proceedings; and

(iii) the modification of any rule, practice or procedure in its application to proper defendants under that Act; and

(iv) any other matter or thing necessary or required for the purposes of that Act or arising from proceedings conducted in accordance with that Act;

S. 25(1)(ai) inserted by No. 33/2018 s. 64.

(ai) electronic communication and electronic processes, including, but not limited to—

(i) applications by electronic means, electronic filing and electronic service of documents in any proceeding; and

(ii) the transmission and issuing of orders, judgments, processes and other documents by electronic communication; and

(iii) use of electronic signatures and seals;

S. 25(1)(aj) inserted by No. 31/2021 s. 10.

(aj) the conduct of, and procedure for, or in relation to, substituted proceedings to which Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 applies;

S. 25(1)(b) amended by No. 24/2008 s. 22(1)(a).

(b) The prescription of the proceedings or class of proceedings which may be dealt with by the Court constituted by an Associate Judge;

S. 25(1)(c) amended by Nos 109/1994 s. 22(1)(a)(i)(ii), 24/2008 s. 22(1)(b), 3/2016 s. 45.

(c) Appeals by way of rehearing or otherwise to the Trial Division of the Court constituted by a Judge from an associate judge of the County Court;

S. 25(1)(ca) inserted by No. 109/1994 s. 22(1)(b).

(ca) applications and appeals to and proceedings in the Court of Appeal;

S. 25(1)(cab) inserted by No. 62/2014 s. 7.

(cab) without limiting paragraph (ca), in accordance with section 11, providing for the constitution of the Court of Appeal by a single Judge of Appeal—

(i) in particular kinds of applications and appeals to or proceedings in the Court of Appeal; or

(ii) generally;

S. 25(1)(cac) inserted by No. 62/2014 s. 7.

(cac) without limiting paragraph (ca), in accordance with section 11, providing for the particular kinds of applications, appeals or proceedings in respect of which the Court of Appeal may discharge or vary a judgment, order or direction given or made by a single Judge of Appeal;

S. 25(1)(cb) inserted by No. 24/2008 s. 22(1)(c).

(cb) appeals by way of rehearing or otherwise from the Trial Division constituted by an Associate Judge—

(i) to the Court of Appeal; or

(ii) to the Trial Division constituted by a Judge of the Court;

S. 25(1)(cc) inserted by No. 34/2010 s. 19(1).

(cc) appeals by way of rehearing or otherwise from the Court constituted by a judicial registrar—

(i) to the Court of Appeal; or

(ii) to the Trial Division constituted by a Judge of the Court or by an Associate Judge;

(d) The payment of money into and out of court and the investment of that money including, without limiting the generality of the foregoing provisions of this paragraph, rules—

(i) providing for the establishment and management of Common Funds; and

(ii) regulating the practice and procedure of the Senior Master in relation to the investment of money; and

(iii) generally prescribing anything necessary to be prescribed for the proper management and operation of Common Funds;

S. 25(1)(da) inserted by No. 78/2008 s. 6.

(da) the practice and procedure of the Costs Court, including, but not limited to generally providing for matters in respect of the assessment, settling, taxation and review of costs by the Costs Court.

S. 25(1)(db) inserted by No. 78/2008 s. 6, amended by No. 34/2010 s. 19(2)(a).

(db) without limiting paragraph (da), the performance of assessing, settling, taxing and reviewing of costs by costs registrars or judicial registrars, including, but not limited to, the exercise by costs registrars or judicial registrars of the jurisdiction of the Costs Court;

S. 25(1)(dc) inserted by No. 78/2008 s. 6, amended by No. 34/2010 s. 19(2)(b).

(dc) the transfer or referral of matters between the Costs Court constituted by a Costs Judge and the Costs Court constituted by a costs registrar or a judicial registrar;

S. 25(1)(dd) inserted by No. 78/2008 s. 6, amended by No. 34/2010 s. 19(2)(c).

(dd) reviews by and appeals from the Costs Court;

S. 25(1)(de) inserted by No. 34/2010 s. 19(3), substituted by No. 68/2012 s. 7(1).

(de) the prescription of classes of matters (whether civil or criminal) which may be heard and determined by the Court constituted by a judicial registrar;

S. 25(1)(dea) inserted by No. 68/2012 s. 7(1).

(dea) without limiting paragraph (dg), the referral by a Judge or an Associate Judge of any matter (whether civil or criminal and whether or not it falls within a particular class of matter) to the Court constituted by a judicial registrar for hearing and determination;

S. 25(1)(df) inserted by No. 34/2010 s. 19(3), amended by No. 68/2012 s. 7(2).

(df) delegating to judicial registrars all or any of the powers of the Court specified by the Rules in relation to matters to be heard and determined by judicial registrars in accordance with the Rules, including, but not limited to, the exercise by judicial registrars of the jurisdiction of the Court;

S. 25(1)(dg) inserted by No. 34/2010 s. 19(3).

(dg) the transfer or referral of matters between the Court constituted by a judicial registrar and the Court constituted by a Judge of the Court or by an Associate Judge;

S. 25(1)(dh) inserted by No. 34/2010 s. 19(3).

(dh) reviews of, and appeals from, the Court constituted by a judicial registrar or a costs registrar;

(e) The reference of any question arising in a proceeding to a special referee or officer of the Court for decision or opinion;

S. 25(1)(ea) inserted by No. 64/1990 s. 7(1).

(ea) The reference of any proceeding or of any part of a proceeding to mediation or arbitration;

S. 25(1)(eab) inserted by No. 50/2009 s. 6(a).

(eab) judicial resolution conferences, including, but not limited to, the practice and procedure of the Court in relation to judicial resolution conferences;

S. 25(1)(eac) inserted by No. 47/2010 s. 82(b).

(eac) without limiting paragraphs (ea) and (eab), the referral, direction or ordering of parties to a proceeding to any form of appropriate dispute resolution, whether with or without consent of the parties;

S 25(1)(eb) inserted by No. 4/1997
s. 5, amended by No. 69/2009 s. 54(Sch. Pt 2 item 48).

(eb) requirements for the purposes of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958 for or with respect to[13]—

(i) the form of audio visual or audio link;

(ii) the equipment, or class of equipment, used to establish the link;

(iii) the layout of cameras;

(iv) the standard, or speed, of transmission;

(v) the quality of communication;

(vi) any other matter relating to the link;

S. 25(1)(ec) inserted by No. 4/1997
s. 5, amended by No. 69/2009 s. 54(Sch. Pt 2 item 48).

(ec) applications to the Court under Division 2 or 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958[14];

S. 25(1)(ed) inserted by No. 8/2008 s. 9, repealed by No. 8/2008 s. 12(2).

(f) Any matter relating to—

(i) the practice and procedure of the Court; or

(ii) the powers, authorities, duties and functions of the officers of the Court;

(g) Any matter relating to the enforcement of judgments of the Court, whether arising under the common law or under any jurisdiction conferred by or under any Act or enactment.

S. 25(1A) inserted by No. 24/2008 s. 22(2).

(1A) The Rules may—

S. 25(1A)(a) amended by Nos 50/2009 s. 6(b), 34/2010 s. 19(4).

(a) confer a discretionary authority or impose a duty on the Chief Justice, a Judge of the Court, an Associate Judge, a judicial registrar or a specified court official or a specified class of judge, class of judicial registrar or court official; and

(b) provide in a specified case or class of case for the exemption of proceedings or a class of proceeding from any of the provisions of the Rules, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.

(2) The power to make Rules of Court extends to the repeal and amendment of Rules even if they have been ratified, validated and approved by the Parliament.

No. 6387 s. 26.

S. 26 amended by Nos 9/1995 s. 7(5), 24/2008 s. 23, 5/2013 s. 18, 63/2013 s. 18, 11/2021 s. 51 (ILA s. 39B(1)).

26 Manner of making Rules

(1) If by this or any other Act it is provided, expressly or by implication, that the Court or the Judges of the Court may make Rules, the power may be exercised by a majority of the Judges (not including any reserve Judge, Associate Judge or reserve Associate Judge) present at a meeting held for that purpose.

S. 26(2) inserted by No. 11/2021 s. 51.

(2) Without limiting subsection (1), the Judges of the Court may exercise the power to make Rules by means of a majority of Judges of the Court (not including any reserve Judge, Associate Judge or reserve Associate Judge) agreeing to the proposed Rules without being physically present at a meeting held for that purpose.

No. 6387 s. 27.

27 Disallowance of Rules

The Rules are subject to disallowance by the Parliament.

S. 27A inserted by No. 64/1990 s. 8.

27A Protection of special referees, mediators and arbitrators

S. 27A(1) amended by No. 47/2010 s. 81(2).

(1) A special referee, mediator or arbitrator to whom a proceeding, part of a proceeding or question arising in a proceeding is referred under the Rules or under the Civil Procedure Act 2010 has, in the performance of his or her duties in connection with the reference, the same protection and immunity as a Judge of the Court has in the performance of his or her duties as a Judge.

S. 27A(2) amended by No. 50/2011 s. 46(Sch. item 14.2).

(2) Subsection (1) applies despite anything to the contrary in the Commercial Arbitration Act 2011.

Pt 2 Div. 5 (Heading) inserted by No. 57/1989 s. 3(Sch. item 192.1).

Division 5—Council of Judges

No. 6387 s. 28.

28 Council of Judges

(1) A Council of the Judges of the Court must meet once at least in each year on a day or days fixed by the Chief Justice to—

(a) consider the operation of this Act and the Rules; and

(b) consider the working of the offices of the Court and the arrangements relating to the duties of the officers of the Court; and

(c) inquire into and examine any defects which appear to exist in the system of procedure or the administration of the law in the Court and in any other court from which an appeal lies to the Court.

(2) The Chief Justice must cause adequate notice of a meeting to be given to all the Judges.

(3) The Judges must report annually to the Governor on the operation of the Court.

S. 28(4) amended by Nos 9/1995 s. 7(5), 24/2008 s. 24, substituted by No. 5/2013 s. 19, amended by No. 63/2013 s. 19.

(4) In this section, Judges does not include any reserve Judge, Associate Judge or reserve Associate Judge.

S. 28(5) inserted by No. 3/2016 s. 46.

(5) A Judge of the Court who is a dual commission holder as Chief Judge is a member of the Council of Judges of the Court and is also a member of the Council ofJudges under section 87 of the County Court Act 1958.

S. 28(6) inserted by No. 1/2022 s. 26.

(6) A Judge of the Court who is a dual commission holder as Chief Magistrate is a member of the Council of Judges of the Court and is also a member of the Council of magistrates under section 15 of the Magistrates' Court Act 1989.

Note to s. 28 inserted by No. 16/2016 s. 208.

See Divisions 1 and 2 of Part 6 of the Judicial Commission of Victoria Act 2016 which specifies functions for the Council of Judges.

Pt 2 Div. 5A (Heading and s. 28AAA) inserted by No. 16/2016 s. 209.

Division 5A—Powers of Chief Justice

S. 28AAA inserted by No. 16/2016 s. 209.

28AAA Administrative responsibility of Chief Justice

(1) The Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The Chief Justice has the power to do all things necessary or convenient to be done to perform the Chief Justice's responsibilities under subsection (1).

(3) Nothing in this section limits the responsibilities, functions or powers of the Chief Justice under this or any other Act.

Pt 2 Div. 6 (Heading and s. 28A) inserted by No. 24/2007 s. 3.

Division 6—Professional development and training

S. 28A inserted by No. 24/2007 s. 3.

28A Professional development and training

(1) In this section—

S. 28A(1) def. of
judicial officer amended by Nos 24/2008 s. 25, 34/2010 s. 20, 5/2013 s. 20, 63/2013 s. 20, 3/2016 s. 47, 1/2022 s. 27.

judicial officer means—

(a) a Judge of the Court (other than a Judge of the Court who is a dual commission holder as Chief Judge or Chief Magistrate), including a reserve Judge; or

(b) an Associate Judge, including a reserve Associate Judge; or

(c) a judicial registrar.

(2) The Chief Justice is responsible for directing the professional development and continuing education and training of judicial officers.

(3) In discharging his or her responsibility under subsection (2) the Chief Justice may direct—

(a) all judicial officers; or

(b) a specified class of judicial officer; or

(c) a specified judicial officer—

to participate in a specified professional development or continuing education and training activity.

(4) A direction under subsection (3) may be given orally or in writing.

Part 3—Concurrent administration of law and equity

No. 6387 s. 62(5).

29 Law and equity to be concurrently administered

(1) Subject to the provisions of this or any other Act, every court exercising jurisdiction in Victoria in any civil proceeding must continue to administer law and equity on the basis that, if there is a conflict or variance between the rules of equity and the rules of the common law concerning the same matter, the rules of equity prevail.

No. 6387 s. 61(5).

(2) Every court referred to in subsection (1) must give the same effect as before the commencement of this Act—

(a) to all equitable estates, titles, rights, reliefs, defences and counter-claims, and to all equitable duties and liabilities; and

(b) subject thereto, to all legal claims and demands and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any Act—

and, subject to the provisions of this or any other Act, must so exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.

No. 6387 s. 61(5).

30 Power to stay proceedings

Nothing in this Act affects the power of the Court to stay a proceeding in the Court, either of its own motion or on the application of any person, whether or not a party.

Part 4—Inferior courts

No. 6387 s. 58.

31 Power of inferior courts with equity jurisdiction

Every inferior court which has jurisdiction in equity or at law and in equity—

(a) has as regards all causes of action within its jurisdiction, power to grant in any proceedings before that court such relief, redress or remedy or combination of remedies, either absolute or conditional, as the Court has power to grant in the like case; and

(b) subject to section 32, in any proceedings before it may give effect to every ground of defence or counter-claim, equitable or legal, in as full and ample a manner as the Court might give in the like case.

No. 6387 s. 59.

32 Transfer of proceeding from inferior court

S. 32(1) amended by No. 43/1991 s. 36(a).

(1) If as to any claim brought in an inferior court the defendant raises—

(a) a defence; or

(b) a counter-claim—

which involves a matter exceeding the jurisdiction of that court, then, unless an order is made under the Courts (Case Transfer) Act 1991 transferring the proceeding to a court with jurisdiction, that court must determine all the issues raised in the proceeding that relate to the claim of the plaintiff and the defence to it and may grant relief on the counter-claim to the extent that it is within its jurisdiction to do so.

S. 32(2)–(5) repealed by No. 43/1991 s. 36(b).

No. 6387 s. 60.

33 Rules of law to apply to inferior courts

Unless otherwise expressly provided by this or any other Act, the rules of law enacted by Part 5 apply to all courts so far as the matters to which those rules relate are within the jurisdiction of those courts.

Pt 4A (Heading and ss 33A–33H, 33J–33ZH, 33ZJ, 33ZK) inserted by No. 78/2000 s. 13.

Part 4A—Group proceeding

Division 1—Preliminary

S. 33A inserted by No. 78/2000 s. 13.

33A Definitions

In this Part—

S. 33A def. of Chapter I of the Rules amended by Nos 24/2008 s. 89(a), 22/2020 s. 3.

Chapter I of the Rules means the Supreme Court (General Civil Procedure) Rules 2015;

defendant means a person against whom relief is sought in a group proceeding;

group member means a member of a group of persons on whose behalf a group proceeding has been commenced;

group proceeding means a proceeding commenced under this Part;

handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding;

person under disability means a minor or handicapped person;

plaintiff means a person who commences a group proceeding as a representative party or a person who is substituted under section 33T(1) or 33W(3);

sub-group member means a person included in a sub-group established under section 33Q;

sub-group representative party means a person appointed to be a sub-group representative party under section 33Q.

S. 33B inserted by No. 78/2000 s. 13.

33B Application

(1) This Part applies to a cause of action whether arising before or on or after 1 January 2000.

(2) This Part does not apply to—

(a) a proceeding under sections 34 and 35 of the Act; or

(b) a proceeding concerning—

(i) the administration of the estate of a deceased person; or

(ii) property subject to a trust; or

(c) a proceeding commenced under Order 18 of Chapter I of the Rules.

Division 2—Commencement of group proceeding

S. 33C inserted by No. 78/2000 s. 13.

33C Commencement of proceeding

(1) Subject to this Part, if—

(a) seven or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common question of law or fact—

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2) A group proceeding may be commenced—

(a) whether or not the relief sought—

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would require individual assessment; or

(iv) is the same for each person represented; and

(b) whether or not the proceeding—

(i) is concerned with separate contracts or transactions between the defendant and individual group members; or

(ii) involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.

S. 33D inserted by No. 78/2000 s. 13.

33D Standing

(1) A person referred to in paragraph (a) of section 33C(1) who has a sufficient interest to commence a proceeding on the person's own behalf against another person has a sufficient interest to commence a group proceeding against that other person on behalf of other persons referred to in that paragraph.

(2) If a person has commenced a group proceeding, that person retains a sufficient interest—

(a) to continue the proceeding; and

(b) to bring an appeal from a judgment in the proceeding—

even though the person ceases to have a claim against the defendant.

S. 33E inserted by No. 78/2000 s. 13.

33E Consent of group member

(1) Subject to subsection (2), the consent of a person to be a group member is not required.

(2) None of the following persons is a group member unless the person gives consent in writing to being so—

(a) the Commonwealth, a State or a Territory; or

(b) a Minister of the Commonwealth, a State or a Territory; or

(c) a body corporate established for a public purpose by a law of the Commonwealth, a State or a Territory, other than an incorporated company or association; or

(d) any judge, magistrate or other judicial officer of the Commonwealth, a State or a Territory; or

(e) any other officer of the Commonwealth, a State or a Territory, in his or her capacity as an officer.

S. 33F inserted by No. 78/2000 s. 13.

33F Persons under disability

(1) It is not necessary for a person under disability to have a litigation guardian merely in order to be a group member.

(2) A group member who is a person under disability may only take a step in the group proceeding, or conduct part of the proceeding, by the group member's litigation guardian.

S. 33G inserted by No. 78/2000 s. 13, amended by No. 12/2001 s. 6.

33G Group proceeding not to be commenced in certain circumstances

A group proceeding may not be commenced if the proceeding would be concerned only with claims in respect of which the Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross-vesting) Act 1987 or a corresponding law of the Commonwealth or another State or a Territory.

S. 33H inserted by No. 78/2000 s. 13.

33H Originating process

(1) A group proceeding must be commenced by writ.

(2) The indorsement on the writ must, in addition to any other matters required by the Rules to be included—

(a) describe or otherwise identify the group members to whom the proceeding relates; and

(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c) specify the questions of law or fact common to the claims of the group members.

(3) In describing or otherwise identifying group members for the purposes of subsection (2), it is not necessary to name, or specify the number of, the group members.

S. 33J inserted by No. 78/2000 s. 13.

33J Right of group member to opt out

(1) The Court must fix a date before which a group member may opt out of a group proceeding.

(2) A group member may opt out of the group proceeding by notice in writing before the date so fixed.

(3) The Court, on the application of a group member, the plaintiff or the defendant, may extend the period within which a group member may opt out of the group proceeding.

(4) Except with the leave of the Court, the trial of a group proceeding must not commence earlier than the date before which a group member may opt out of the proceeding.

(5) Unless the Court otherwise orders, a person who has opted out of a group proceeding must be taken never to have been a group member.

(6) The Court, on the application of a person who has opted out of a group proceeding, may reinstate that person as a group member on such terms as the Court thinks fit.

S. 33K inserted by No. 78/2000 s. 13.

33K Causes of action accruing after commencement

(1) The Court may, at any stage of a group proceeding on application made by the plaintiff, give leave to amend the writ commencing the group proceeding so as to alter the description of the group.

(2) The description of the group may be altered so as to include a person—

(a) whose cause of action accrued after the commencement of the group proceeding but before such date as the Court fixes when giving leave; and

(b) who would have been included in the group or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

(3) The date mentioned in subsection (2)(a) may be the date on which leave is given or another date before or after that date.

(4) If the Court gives leave under subsection (1), it may also make any other orders it thinks just, including an order relating to the giving of notice to persons who, as a result of the amendment, will be included in the group and the date before which such persons may opt out of the proceeding.

S. 33KA inserted by No. 78/2000 s. 13.

33KA Court powers concerning group membership

(1) On the application of a party to a group proceeding or of its own motion, the Court may at any time, whether before or after judgment, order—

(a) that a person cease to be a group member;

(b) that a person not become a group member.

(2) The Court may make an order under subsection (1) if of the opinion that—

(a) the person does not have sufficient connection with Australia to justify inclusion as a group member; or

(b) for any other reason it is just or expedient that the person should not be or should not become a group member.

(3) If the Court orders that a person cease to be a group member, then, if the Court so orders, the person must be taken never to have been a group member.

S. 33L inserted by No. 78/2000 s. 13.

33L Fewer than seven group members

If, at any stage of a group proceeding, it appears likely to the Court that there are fewer than 7 group members, the Court may order, on such conditions (if any) as it thinks fit—

(a) that the proceeding continue under this Part; or

(b) that the proceeding no longer continue under this Part.

S. 33M inserted by No. 78/2000 s. 13.

33M Distribution costs excessive

If—

(a) the relief claimed in a group proceeding is or includes payment of money to group members (otherwise than in respect of costs); and

(b) on application by the defendant, the Court concludes that it is likely that, if judgment were to be given in favour of the plaintiff, the cost to the defendant of identifying the group members and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts—

the Court may, by order—

(c) direct that the proceeding no longer continue under this Part; or

(d) stay the proceeding so far as it relates to relief of the kind mentioned in paragraph (a).

S. 33N inserted by No. 78/2000 s. 13.

33N Proceeding not to continue under this Part

(1) The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because—

(a) the costs that would be incurred if the proceeding were to continue as a group proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b) all the relief sought can be obtained by means of a proceeding other than a group proceeding; or

(c) the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d) it is otherwise inappropriate that the claims be pursued by means of a group proceeding.

(2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the defendant except with the leave of the Court.

(3) Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court thinks fit.

S. 33P inserted by No. 78/2000 s. 13.

33P Consequences of proceeding not continuing under this Part

If the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part—

(a) the proceeding may be continued as a proceeding by the plaintiff on the plaintiff's own behalf against the defendant; and

(b) on the application of a person who was a group member, the Court may order that the person be joined as a plaintiff in the proceeding.

S. 33Q inserted by No. 78/2000 s. 13.

33Q Where not all questions common

(1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions.

(2) In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person who consents to the appointment to be the sub-group representative party on behalf of the sub-group members.

(3) If the Court appoints a person other than the plaintiff to be a sub-group representative party, that person, and not the plaintiff, is liable for costs associated with the determination of the question or questions common to the sub-group members.

S. 33R inserted by No. 78/2000 s. 13.

33R Individual questions

(1) In giving directions under section 33Q, the Court may permit an individual group member to take part in the proceeding for the purpose of determining a question that relates only to the claim of that member.

(2) In such a case, the individual group member, and not the plaintiff, is liable for costs associated with the determination of the question.

S. 33S inserted by No. 78/2000 s. 13.

33S Directions for further proceedings

If a question cannot properly or conveniently be dealt with under section 33Q or 33R, the Court may give directions for the commencement and conduct of another proceeding, whether or not a group proceeding.

S. 33T inserted by No. 78/2000 s. 13.

33T Adequacy of representation

(1) If, on an application by a group member, it appears to the Court that the plaintiff is not able adequately to represent the interests of the group members, the Court may substitute another group member as plaintiff and may make such other orders as it thinks fit.

(2) If, on an application by a sub-group member, it appears to the Court that the sub-group representative party is not able adequately to represent the interests of the sub-group members, the Court may substitute another person as sub-group representative party and may make such other orders as it thinks fit.

S. 33U inserted by No. 78/2000 s. 13.

33U Stay of execution

If a defendant commences a proceeding in the Court against a group member, the Court may order a stay of execution in respect of any relief awarded to the group member in the group proceeding until the other proceeding is determined.

S. 33V inserted by No. 78/2000 s. 13.

33V Settlement and discontinuance

(1) A group proceeding may not be settled or discontinued without the approval of the Court.

(2) If the Court gives such approval, it may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into court.

S. 33W inserted by No. 78/2000 s. 13.

33W Settlement of individual claim

(1) The plaintiff may, with the leave of the Court, settle the plaintiff's individual claim in whole or in part at any stage of the group proceeding.

(2) The Court may order that a person who has settled the person's individual claim in whole or in part cease to be plaintiff.

(3) If an order is sought under subsection (2), the Court may, on the application of a group member, make an order substituting as plaintiff a group member who consents to that substitution.

(4) An order must not be made under subsection (2) unless the Court is satisfied that—

(a) notice of application for the order has been given to group members in accordance with section 33X(1); and

(b) such notice was given in sufficient time for an application to be made for an order under subsection (3); and

(c) an order under subsection (3) has been or will be made.

(5) The Court may make an order under subsection (2) or (3) on such terms and conditions, as to costs or otherwise, as the Court thinks fit.

Division 3—Notices

S. 33X inserted by No. 78/2000 s. 13.

33X When notice to be given

(1) Notice must be given to group members of the following matters in relation to a group proceeding—

(a) the commencement of the proceeding and the right of the group members to opt out of the proceeding before a specified date, being the date fixed under section 33J(1);

(b) an application by the defendant for the dismissal of the proceeding on the ground of want of prosecution;

(c) an application by the plaintiff seeking leave under section 33W.

(2) The Court may dispense with compliance with any or all of the requirements of subsection (1) if the relief sought in a proceeding does not include any claim for damages.

(3) If the Court so orders, notice must be given to group members of any offer to compromise the proceeding.

(4) Unless the Court is satisfied that it is just to do so, an application for approval under section 33V must not be determined unless notice has been given to group members.

(5) The Court may, at any stage, order that notice of any matter be given to a group member or group members.

(6) Notice under this section must be given as soon as practicable after the happening of the event to which the notice relates.

S. 33Y inserted by No. 78/2000 s. 13.

33Y Notices under section 33X

(1) The form and content of a notice under section 33X must be approved by the Court.

(2) The Court must, by order, specify—

(a) who is to give the notice; and

(b) the manner in which the notice is to be given—

and the order may include provision—

(c) directing a party to provide information relevant to the giving of the notice; and

(d) relating to the costs of notice.

(3) An order under subsection (2) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means.

(4) The Court must not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.

(5) A notice that concerns a matter for which the Court's leave is required must specify the period within which a group member or other person may apply to the Court, or take some other step, in relation to the matter.

(6) A notice that includes or concerns conditions must specify the conditions and the period, if any, for compliance.

(7) The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding.

Division 4—Judgment, etc.

S. 33Z inserted by No. 78/2000 s. 13.

33Z Judgment of the Court

(1) The Court may, in determining a matter in a group proceeding—

(a) determine a question of law;

(b) determine a question of fact;

(c) make a declaration of liability;

(d) grant any equitable relief;

(e) make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies;

(f) award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

(g) make such other order as is just, including, but not restricted to, an order for monetary relief other than for damages and an order for non-pecuniary damages.

(2) In making an order for an award of damages, or monetary relief the Court must make provision for the payment or distribution of the money to the group members entitled.

(3) Subject to section 33V, the Court must not make an award of damages under subsection (1)(f) or monetary relief under subsection (1)(g) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment.

(4) If the Court has made an award of damages, the Court may give directions in relation to—

(a) the manner in which a group member or sub-group member is to establish the member's entitlement to share in the damages; and

(b) the manner in which any dispute regarding the entitlement of a group member or sub-group member to share in the damages is to be determined.

S. 33ZA inserted by No. 78/2000 s. 13.

33ZA Constitution etc. of fund

(1) Without limiting the operation of section 33Z(2), in making provision for the distribution of money to group members, the Court may provide for—

(a) the constitution and administration of a fund consisting of the money to be distributed; and

(b) either—

(i) the payment by the defendant of a fixed sum of money into the fund; or

(ii) the payment by the defendant into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and

(c) entitlements to interest earned on the money in the fund.

(2) The costs of administering a fund are to be borne by the fund or the defendant, or by both, as the Court directs.

(3) If the Court orders the constitution of a fund mentioned in subsection (1), the order must—

(a) require notice to be given to group members in such manner as is specified in the order; and

(b) specify the manner in which a group member is to make a claim for payment out of the fund and establish the group member's entitlement to the payment; and

(c) specify a day (which is 6 months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and

(d) make provision in relation to the day before which the fund is to be distributed to group members who have established an entitlement to be paid out of the fund.

(4) The Court may, if it is just, allow a group member to make a claim after the day fixed under subsection (3)(c) if the fund has not already been fully distributed.

(5) On application by the defendant after the day fixed under subsection (3)(d), the Court may make such orders as it thinks fit for the payment from the fund to the defendant of the money remaining in the fund.

S. 33ZB inserted by No. 78/2000 s. 13.

33ZB Effect of judgment

A judgment given in a group proceeding—

(a) must describe or otherwise identify the group members who will be affected by it; and

(b) subject to section 33KA, binds all persons who are such group members at the time the judgment is given.

Division 5—Appeals

S. 33ZC inserted by No. 78/2000 s. 13.

33ZC Appeals

(1) On an appeal by the plaintiff on behalf of group members and in respect of the judgment to the extent that it relates to questions common to the claims of group members, the parties to the appeal are the plaintiff, as the representative of the group members, and the defendant.

(2) On an appeal by a sub-group representative party on behalf of sub-group members in respect of the judgment to the extent that it relates to questions common to the claims of sub-group members, the parties to the appeal are the sub-group representative party, as the representative of the sub-group members, and the defendant.

(3) On an appeal by the defendant in a group proceeding, other than an appeal referred to in subsection (4), the parties to the appeal are—

(a) in the case of an appeal in respect of the judgment generally—the defendant and the plaintiff as the representative of the group members; and

(b) in the case of an appeal in respect of the judgment to the extent that it relates to questions common to the claims of sub-group members—the defendant and the sub-group representative party as the representative of the sub-group members.

(4) The parties to an appeal in respect of the determination of a question that relates only to a claim of an individual group member are that group member and the defendant.

(5) If the plaintiff or the sub-group representative party does not commence an appeal within the time provided, another member of the group or sub-group may, within a further 21 days, commence an appeal as representing the group members or sub-group members, as the case may be.

(6) If an appeal is brought from a judgment of the Trial Division in a group proceeding, the Court of Appeal may direct that notice of the appeal be given to such person or persons, and in such manner, as that court thinks fit.

(7) Section 33J does not apply to an appeal.

(8) The notice of appeal must describe or otherwise identify the group members or sub-group members, as the case may be, but need not specify the names or number of those members.

Division 6—Miscellaneous

S. 33ZD inserted by No. 78/2000 s. 13, amended by No. 22/2020 s. 4 (ILA s. 39B(1)).

33ZD Costs

(1) In a group proceeding, the Court—

(a) may order the plaintiff or the defendant to pay costs;

(b) except as authorised by section 33Q or 33R, may not order a group member or a sub-group member to pay costs.

S. 33ZD(2) inserted by No. 22/2020 s. 4.

(2) Subsection (1)(b) is subject to any order made under section 33ZDA.

S. 33ZDA inserted by No. 22/2020 s. 5.

33ZDA Group costs orders

(1) On application by the plaintiff in any group proceeding, the Court, if satisfied that it is appropriate or necessary to ensure that justice is done in the proceeding, may make an order—

(a) that the legal costs payable to the law practice representing the plaintiff and group members be calculated as a percentage of the amount of any award or settlement that may be recovered in the proceeding, being the percentage set out in the order; and

(b) that liability for payment of the legal costs must be shared among the plaintiff and all group members.

(2) If a group costs order is made—

(a) the law practice representing the plaintiff and group members is liable to pay any costs payable to the defendant in the proceeding; and

(b) the law practice representing the plaintiff and group members must give any security for the costs of the defendant in the proceeding that the Court may order the plaintiff to give.

(3) The Court, by order during the course of the proceeding, may amend a group costs order, including, but not limited to, amendment of any percentage ordered under subsection (1)(a).

(4) This section has effect despite anything to the contrary in the Legal Profession Uniform Law (Victoria).

(5) In this section—

group costs order means an order made under subsection (1);

legal costs has the same meaning as in the Legal Profession Uniform Law (Victoria).

S. 33ZE inserted by No. 78/2000 s. 13.

33ZE Suspension of limitation periods

(1) Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

(2) The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim.

S. 33ZF inserted by No. 78/2000 s. 13.

33ZF General power of court to make orders

In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

S. 33ZG inserted by No. 78/2000 s. 13.

33ZG Order may specify a date by which group members must take a step

Without limiting the operation of section 33ZF, an order made under that section may—

(a) set out a step that group members or a specified class of group members must take to be entitled to—

(i) any relief under section 33Z; or

(ii) any payment out of a fund constituted under section 33ZA; or

(iii) obtain any other benefit arising out of the proceeding—

irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability;

(b) specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph.

S. 33ZH inserted by No. 78/2000 s. 13.

33ZH Order in event of decision or admission on liability

(1) Without limiting the operation of sections 33ZF and 33ZG, if the Court has made a decision on liability or there has been an admission by the defendant on liability, an order made under section 33ZF may require notice of that decision or admission to be given to group members or a specified class of group members.

(2) Subject to subsection (3), the form and content of the notice must be approved by the Court.

(3) If the Court has made an order of a kind referred to in section 33ZG, the notice must set out the effect of the order.

(4) An order under section 33ZF may require that a notice referred to in this section be given by means of press advertisement, radio or television broadcast, or by any other means.

S. 33ZJ inserted by No. 78/2000 s. 13.

33ZJ Reimbursement of plaintiff's costs

(1) If the Court has made an award of damages in a group proceeding, the plaintiff or a sub-group representative party, or a person who has been a plaintiff or such a party, may apply to the Court for an order under this section.

(2) If, on an application under this section, the Court is satisfied that the costs reasonably incurred in relation to the group proceeding by the person making the application are likely to exceed the costs recoverable by the person from the defendant, the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded.

S. 33ZK inserted by No. 78/2000 s. 13, amended by No. 24/2008 s. 89(b).

33ZK Transitional provisions

A proceeding commenced under Rule 18A.03 of the Supreme Court (General Civil Procedure) Rules 1996 on or after 1 January 2000 and before the passing of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 must be taken for all purposes to have been commenced under this Part on the day on which it was commenced under that Rule.

Part 5—Miscellaneous rules of law

Division 1—General

Ss 34, 35 repealed by No. 78/2000 s. 14.

No. 6387 s. 62(1).

36 Declaratory judgments

A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.

No. 6387 s. 62(2).

37 Injunctions and receivers

(1) The Court may by order, whether interlocutory or final, grant an injunction or appoint a receiver if it is just and convenient to do so.

(2) An order made under subsection (1) may be made either unconditionally or on such terms and conditions as the Court thinks just.

(3) The Court may grant an interlocutory injunction under subsection (1) restraining a party to a proceeding from removing from Victoria or otherwise dealing with assets located within Victoria, whether or not that party is domiciled, resident or present within Victoria.

No. 6387 s. 62(3).

38 Damages in addition to or in place of other remedies

If the Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance.

No. 6387 s. 62(1A).

39 Foreign law

If on a trial with a jury it is necessary to ascertain the law of any other country which is applicable to the facts of the case, any question as to the effect of the evidence given with respect to that law must, instead of being submitted to the jury, be decided by the judge alone.

No. 6387 s. 63A.

40 Crown payments to be subject to attachment

Despite any Act or rule of law to the contrary, a court may make an attachment order in respect of earnings due to be paid by the Crown or a statutory authority representing the Crown.

No. 6387 s. 63B.

41 Failure to prosecute not a bar to civil remedy

Without limiting the generality of section 322B of the Crimes Act 1958, a civil remedy for an act or omission is not suspended because the act or omission amounts to an offence for which the offender has not been prosecuted.

No. 6387 s. 63C.

42 Property available to satisfy judgment debt

S. 42(1) amended by No. 84/1997
s. 53.

(1) Despite any Act, subordinate instrument or rule of law to the contrary, any property of a judgment debtor which if the judgment debtor were a bankrupt under the Commonwealth Bankruptcy Act 1966 would not under section 116(2)(b), (c) and (ca) of that Act be property divisible amongst the creditors of the judgment debtor must not be seized or taken under any process issued for the enforcement or execution of a judgment for the recovery or payment of money.

(2) For the purposes of subsection (1)—

(a) the Commonwealth Bankruptcy Act 1966 means the Commonwealth Act known as the Bankruptcy Act 1966 as amended and in force for the time being and, if the provisions of that Act are re-enacted, means those provisions as re-enacted and as subsequently amended and in force for the time being; and

S. 42(2)(b) amended by No. 84/1997
s. 53.

(b) section 116(2)(b), (c) and (ca) of that Act or any corresponding later provision is to be construed as if it did not contain any reference to a determination by the creditors by resolution or by the Court in relation to other property of the bankrupt.

No. 6387 s. 80.

S. 43 (Heading) inserted by No. 17/2005 s. 7(1).

43 Standard time in Victoria

S. 43(1) substituted by No. 17/2005 s. 7(2).

(1) Standard time throughout Victoria is the time that is 10 hours in advance of Co-ordinated Universal Time.

Under section 8AA of the National Measurement Act 1960 of the Commonwealth the Chief Metrologist is required to maintain Co-ordinated Universal Time (UTC) as determined by the International Bureau of Weights and Measures.

(2) If—

(a) an expression of time occurs in an instrument; or

(b) the doing or not doing of anything at a certain time has an effect in law—

the time is standard time as provided in subsection (1) unless it is otherwise specifically stated.

No. 6387 s. 63.

44 Meaning of *month* in documents

In any document, unless the contrary intention appears, a reference to a month is to be construed as a reference to a calendar month.

Division 2—Vessels

No. 6387 s. 64.

45 Rule as to division of liability for damage or loss

(1) If, owing to the fault of two or more vessels, damage or loss is caused to—

(a) one or more vessels; or

(b) their cargoes or freight; or

(c) any property on board them—

the liability to make good the damage or loss is, subject to subsection (2), in proportion to the degree to which each vessel was at fault.

(2) The liability must be apportioned equally if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault.

(3) Nothing in this section—

(a) makes a vessel liable for any loss or damage not contributed to by the fault of the vessel; or

(b) affects the liability of any person under a contract of carriage or any other contract; or

(c) imposes any liability on a person from which that person is exempted by any contract or law; or

(d) affects the right of any person to limit that person's liability in any lawful manner.

(4) For the purposes of this section—

(a) freight includes passage money and hire; and

(b) references to damage or loss caused by the fault of a vessel are to be construed as including reference to any salvage or other expenses that are consequent on that fault and recoverable at law by way of damages.

No. 6387 s. 65.

46 Liability for loss of life or personal injuries

(1) If, owing to the fault of two or more vessels, a person on board one of those vessels suffers loss of life or personal injuries, the owners of the vessels are jointly and individually liable.

(2) Nothing in this section—

(a) deprives any person of a right of defence on which, apart from this section, that person might have relied; or

(b) affects the right of any person to limit that person's liability in any lawful manner.

No. 6387 s. 66.

47 Right of contribution

(a) owing to the fault of two or more vessels, a person on board one of those vessels suffers loss of life or personal injuries; and

(b) a proportion of the damages is recovered from the owner of one of those vessels which exceeds the proportion in which that vessel was at fault—

that owner may, subject to subsection (2), recover by way of contribution the amount of the excess from the owners of the other vessels in proportion to the degree to which each vessel was at fault.

(2) An amount cannot be recovered by way of contribution if it could not have been recovered in the first instance as damages by the person entitled to sue for them because of—

(a) any limitation of liability, whether statutory or contractual; or

(b) any exemption from liability; or

(c) any other reason.

(3) Subject to this Act, for the purpose of recovering any amount by way of contribution under subsection (1) the person entitled to make that recovery has the same rights and powers as the person entitled to sue for damages in the first instance.

Division 3—Fires

No. 6387 s. 68.

48 Proceeding does not lie against person on whose land fire accidentally begins

(1) Despite anything to the contrary, a proceeding cannot be brought or maintained against any person in whose building or on whose land a fire accidentally begins and that person is not liable to make any recompense for any damage caused by that fire.

(2) Nothing in this section defeats or makes void a contract or agreement between a landlord and a tenant.

Division 4—Contracts of minors

No. 6387 s. 69.

49 Certain contracts by minors to be void

The following contracts entered into by a minor are void—

(a) contracts for the repayment of money lent or to be lent;

(b) contracts for payment for goods supplied or to be supplied, other than necessaries;

(c) accounts stated.

No. 6387 s. 70.

50 No proceeding to be brought on ratification of minor's contract

(1) No proceeding can be brought to charge a person—

(a) on a promise made after full age to pay a debt contracted during minority; or

(b) on a ratification made after full age of a promise or contract made during minority.

(2) This section applies whether or not there was any new consideration for the promise or ratification.

No. 6387 s. 71.

51 Avoiding contract for payment of loan advanced during minority

(1) If a minor who has contracted a loan (a contract for the repayment of which is void under this Division) agrees after full age to repay all or part of that loan, that agreement and any instrument relating to it is, subject to subsections (2) and (3), void against everyone.

(2) A person who—

(a) in good faith; and

(b) for value; and

(c) without notice—

is the holder or assignee of an instrument referred to in subsection (1) may recover from the minor the amount secured by the instrument.

(3) If a person referred to in subsection (2) recovers from the minor the amount secured by the instrument, the minor may recover that amount from the person to whom the minor gave the instrument.

(4) For the purposes of this section any interest, commission or other payment in respect of a loan is to be taken to be a part of the loan.

Pt 5 Div. 4A (Heading and s. 51A) inserted by No. 15/1998
s. 11.

Division 4A—Administration of children's funds

S. 51A inserted by No. 15/1998
s. 11.

51A Court orders relating to administration of children's funds

(1) If in any civil proceedings before the Court it is adjudged or ordered that money be paid to a child (whether or not that child is a party to a cause or matter) the money—

(a) is to be paid into court; and

(b) unless the Court otherwise orders, is to be paid out to an administrator specified by the Court.

(2) If any money, not being money to which subsection (3) applies—

(a) is paid into court—

(i) before the commencement of this section; or

(ii) after the commencement of this section in accordance with a judgment or order entered or made before the commencement of this section; and

(b) the money is being held in court on behalf of a child—

the Court may by order direct that the money be paid out to an administrator specified in the order.

(3) If the Court adjudges or orders that property (whether real or personal) be delivered up or transferred to a child (whether or not that child is a party to a cause or matter), the Court—

(a) may order that the property be delivered up or transferred to an administrator specified in the order; and

(b) may give any directions for the service of the order on the administrator as it thinks fit.

(4) If an order under subsection (3) is served on State Trustees within the meaning of the State Trustees (State Owned Company) Act 1994, State Trustees must accept delivery or transfer of the property to which the order relates and the acceptance of the property is a sufficient discharge to the person delivering or transferring the property.

S. 51A(5) amended by No. 30/2004 s. 12(1)(2), substituted by No. 13/2019 s. 221(Sch. 1 item 52.1).

(5) A copy of any order made under this section must be given by the administrator to VCAT and the Public Advocate within the meaning of the Guardianship and Administration Act 2019.

S. 51A(6) amended by No. 30/2004 s. 12(1), substituted by No. 13/2019 s. 221(Sch. 1 item 52.1).

(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2019 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 6, 7 and 8 of Part 3 of that Act.

Division 5—Sureties, co-contractors and co-debtors

No. 6387 s. 72.

52 Surety discharging liability to be entitled to securities

(1) A person who is—

(a) surety for the debt or duty of another; or

(b) liable with another for a debt or duty—

and who pays that debt or performs that duty, is entitled to have assigned to that person or to a trustee for that person every judgment specialty or other security held by the creditor in respect of that debt or duty.

(2) Subsection (1) applies whether or not the judgment specialty or other security is taken at law to have been satisfied by the payment of the debt or the performance of the duty.

(3) A person who pays a debt or performs a duty as referred to in subsection (1) is entitled—

(a) to stand in the place of the creditor; and

(b) to use all the remedies of the creditor; and

(c) if necessary and on a proper indemnity, to use the name of the creditor—

in any proceeding to obtain from the principal debtor or any co-surety, co-contractor or co-debtor (as the case requires) indemnity for the advances made and loss sustained by the person who paid the debt or performed the duty.

(4) The payment of the debt or the performance of the duty by a surety is not a defence to any proceeding referred to in subsection (3).

(5) A co-surety, co-contractor or co-debtor is not entitled to recover from another co-surety, co‑contractor or co-debtor more than the proportion to which, as between those parties themselves, that person is justly liable.

Division 6—Apportionment

No. 6387 s. 76.

53 Definitions

(1) In this Division—

annuities includes salaries and pensions;

dividends includes all payments that are made by the name of dividend bonus or otherwise out of the revenue of trading or other public companies and are divisible between all or any of the members of those companies, whether the payments are usually made or declared at a fixed time or otherwise but does not include payments in the nature of a return or reimbursement of capital;

rents includes rent service, rent charge and rent seck and all periodical payments or renderings in place of or in the nature of rent.

(2) For the purposes of this Division the divisible revenue referred to in the definition of dividends is to be taken to have accrued by equal daily increment during and within the period for or in respect of which the payment of the revenue is declared or expressed to be made.

(3) Nothing in this Division renders apportionable any annual sums made payable in any policies of assurance.

(4) This Division does not extend to any case in which it is expressly stipulated that no apportionment is to take place.

No. 6387 s. 73.

54 Rents etc. to accrue from day to day and be apportionable

All rents, annuities, dividends and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) are to be considered as accruing from day to day and are apportionable in respect of time accordingly.

No. 6387 s. 74.

55 Time when apportioned part is to be payable

The apportioned part of any payment referred to in section 54 is payable or recoverable—

(a) in the case of a continuing payment, when the entire portion of which the apportioned part forms part becomes due and payable; and

(b) in the case of a payment determined by re-entry, death or otherwise, when the next entire portion of the payment would have been payable if it had not been so determined.

No. 6387 s. 75.

56 Recovery of apportioned parts

(1) In this section—

person includes the executor, administrator or assignee of a person and the executor, administrator or assignee of a person whose interest determines with that person's death;

landlord means the person who, if the rent for any land had not been apportionable, would have been entitled to the entire or continuing rent for that land.

(2) Subject to subsection (3), the person entitled to the apportioned part of a payment referred to in section 54 may recover that part, when payable, in the same way as that person could recover the entire payment if entitled to it.

(3) The apportioned part of a payment of rent for any land is not by itself recoverable from the person liable to pay the rent but may be recovered from that person by the landlord together with the remaining part of the payment and, if the landlord does so, the person entitled to that apportioned part may then recover it from the landlord.

Division 7—Interest

No. 6387 s. 77.

57 Any interest may be contracted to be paid

S. 57(1) amended by Nos 41/1995 s. 62(Sch. 1 item 8), 11/2010 s. 58.

(1) Subject to the Consumer Credit (Victoria) Act 1995 and the National Credit Code within the meaning of the National Consumer Credit Protection Act 2009 of the Commonwealth, there is no limit to the interest which a person may lawfully contract to pay.

(2) If interest for the loan of money or on any other contract may be lawfully recovered or allowed in any proceeding in any court but the rate of interest has not been previously agreed between the parties, the party entitled to interest may not recover or be allowed in the proceeding interest above the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983.

No. 6387 s. 78.

58 Interest to be allowed when debts or sums certain recovered

(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.

(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.

No. 6387 s. 79.

59 Damages in nature of interest

(1) The Court, on application in all proceedings for trover or trespass concerning goods, must, unless good cause is shown to the contrary, give damages in the nature of interest over and above the value of the goods at the time of the conversion.

(2) The Court, on application in all proceedings on any policies of insurance, must, unless good cause is shown to the contrary, give damages in the nature of interest over and above the money receivable.

No. 6387 s. 79A.

60 Interest in proceedings for debt or damages

(1) The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

(2) Nothing in this section—

(a) authorises the granting of interest on interest;

(b) applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;

(c) affects the damages recoverable for the dishonour of a negotiable instrument;

(d) authorises the allowance of any interest otherwise than by consent on any sum for which judgment is entered or given by consent;

(e) applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or

(f) limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.

(3) If the damages awarded by the Court or jury include or if the Court in its absolute discretion determines that the damages awarded include any amount for—

(a) compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest;

(b) compensation for loss or damage to be incurred or suffered after the date of the award; or

(c) exemplary or punitive damages—

the Court must not allow interest in respect of any amount so included or in respect of so much of the award as in its opinion represents any such damages.

(4) The Court may request a jury to specify in its verdict any amount included in the verdict in respect of the matters referred to in subsection (3).

Pt 5 Div. 8 (Heading and ss 61–66) amended by No. 35/1989 s. 23(1), repealed by No. 35/1996 s. 453(Sch. 1 item 80.3), new Pt 5 Div. 8 (Heading and s. 61) inserted by No. 62/1999 s. 12.

Division 8—Contempt of court

S. 61 inserted by No. 62/1999 s. 12.

61 Restoration of common law relating to contempt of court

(1) The law relating to the right of any person to apply to a court for punishment of a person for a contempt of court is as if section 46 of the Public Prosecutions Act 1994 had not been enacted and the common law has effect accordingly.

(2) This section has effect—

(a) subject to section 52(2) of the Public Prosecutions Act 1994, whether the alleged contempt occurred before or after the commencement of section 12 of the Public Prosecutions (Amendment) Act 1999; and

(b) despite anything to the contrary in the Interpretation of Legislation Act 1984.

Pt 5 Div. 9 (Heading and s. 67)
repealed by No. 35/1996 s. 453(Sch. 1 item 80.3).

Part 6—Miscellaneous powers

Pt 6 Div. 1 (Heading and ss 68, 69) repealed by No. 35/1996 s. 453(Sch. 1 item 80.4), new Pt 6 Div. 1 (Heading and s. 62) inserted by No. 11/2021 s. 52.

Division 1—Determinations without oral hearing

62 Court may determine matter or proceeding without oral hearing

(1) The Court may determine any matter in any proceeding, or determine any proceeding, without an oral hearing and entirely on the basis of written submissions and without the appearance of the parties—

(a) if the Court is satisfied that it is in the interests of justice to do so; and

(b) whether or not the parties consent to the Court doing so.

This power does not apply to criminal proceedings—see the definition of proceeding in section 3(1). Section 337A of the Criminal Procedure Act 2009 provides similarly for criminal proceedings. See also section 201 of that Act.

(2) For the purposes of subsection (1), in determining whether it is in the interests of justice to determine a matter or a proceeding without an oral hearing, the Court shall have regard to—

(a) the nature of the matter or proceeding; and

(b) the right to a fair hearing; and

(c) whether the parties have had the opportunity to obtain legal advice; and

(d) whether the parties consent to the Court doing so.

(3) Nothing in this section affects any other power of the Court to determine a matter or a proceeding without an oral hearing.

Pt 6 Div. 2 (Heading) amended by No. 35/1996 s. 453(Sch. 1 item 80.5)

Division 2—Delivery of documents

Ss 70–75 repealed by No. 35/1996 s. 453(Sch. 1 item 80.6).

No. 6387 s. 95.

S. 76 amended by Nos 35/1996 s. 453(Sch. 1 item 80.7), 18/2005 s. 18(Sch. 1 item 103.3).

76 Power of Court to order legal practitioner or law practice to deliver bill of costs etc.

The jurisdiction of the Court to make orders for the delivery by a legal practitioner or law practice of a bill of costs or for the delivery up of any documents in the possession, custody or power of a legal practitioner or law practice or to make any other order in relation to any such documents extends to cases in which the business or part of the business has not been transacted in the Court.

Pt 6 Div. 3 (Heading) amended by No. 35/1996
s. 453(Sch. 1 item 80.8).

Division 3—Assistance of assessors and legal practitioners

No. 6387 s. 110.

77 Assessors

(1) The Court may in any proceeding call in the assistance of one or more specially qualified assessors and hear the proceeding wholly or partially with their assistance but shall not be bound by their opinion or findings.

(2) The Court may determine the remuneration of the assessors.

No. 6387 ss 111, 113.

78 Opinion of a legal practitioner

S. 78(1) amended by No. 35/1996 s. 453(Sch. 1 item 80.9(a)).

(1) The Court may require or receive the opinion of a legal practitioner for its assistance—

(a) in the investigation of the title to any land with a view to an investment of money in the purchase or on mortgage of that land or with a view to a sale of that land; or

(b) in settling the draft of a instrument; or

(c) in such other cases as are directed by the Rules—

but any party may object to the opinion and, if so, the question in dispute must be disposed of by the Court.

S. 78(2) amended by No. 35/1996 s. 453(Sch. 1 item 80.9(b)).

(2) The Court may determine the fee of the legal practitioner and how it shall be borne and paid.

Division 4—Proceeding for recovery of land

No. 6387 ss 114, 116.

79 Proceeding by landlord if rent is in arrears

S. 79(1)(a) amended by No. 11/2002 s. 3(Sch. 1 item 59.1).

(a) 6 months' rent is in arrears; and

(b) the landlord has the right by law to re-enter for its non-payment—

the landlord may, without any formal demand for the rent in arrears and without re-entry, commence a proceeding for the recovery of the land.

(2) The commencement of a proceeding referred to in subsection (1) takes the place of a demand and re-entry.

(3) If the Court is satisfied—

S. 79(3)(a) amended by No. 11/2002 s. 3(Sch. 1 item 59.1).

(a) that 6 months' rent was in arrears before the proceeding was commenced; and

(b) that the landlord had power to re-enter—

it may give judgment for the landlord.

(4) Unless the tenant within 6 months after the enforcement of the judgment pays the rent and arrears together with full costs and proceeds for relief on equitable grounds, then—

(a) the tenant loses all rights to obtain relief or remedy other than by appeal; and

(b) the landlord holds the land freed from the lease.

(5) If the tenant at any time before the hearing—

S. 79(5)(a) amended by No. 35/1996 s. 453(Sch. 1 item 80.10).

(a) pays or tenders to the landlord or to the executor, administrator or legal practitioner of the landlord; or

(b) pays into court—

the rent and arrears together with full costs, the proceeding under this section ceases.

(6) Nothing in this section bars the right of a mortgagee of the lease or a part of the lease who is not in possession to pay, within 6 months after the enforcement of the judgment, all rent in arrears and all costs and damages sustained by the landlord and perform all the covenants and agreements which are to be performed by the tenant.

No. 6387 ss 115, 116.

80 Lessee not to have relief without payment of rent and costs

(1) A tenant may proceed for relief in the Court within the time specified in section 79(4).

(2) The Court may grant the tenant relief under this section if, within the time fixed by the Court, the tenant brings into the Court—

(a) the rent and arrears and other sums payable under the judgment; and

(b) the taxed costs of the proceeding under section 79.

(3) The Court may—

(a) determine the amount referred to in subsection (2)(a) if the parties cannot agree on its amount;

(b) order that any money brought into the Court under subsection (2)—

(i) remain in the Court until the hearing of the proceeding; or

(ii) be paid to the landlord on good security.

(4) If a proceeding for relief is brought after the enforcement of the judgment, the landlord is accountable only for so much as the landlord really and in good faith (without fraud, deceit or wilful neglect) received in respect of the land from the time of entering into actual possession of it.

(5) If the amount received by the landlord is less than the rent reserved on the lease, the tenant must, before being restored to possession, pay to the landlord the amount of the shortfall for the period the landlord was in possession.

(6) A tenant who is granted relief under this section holds the land under the terms of the lease without the need for a new lease.

(7) In subsection (6) tenant includes the executor, administrator or assignee of a tenant.

No. 6387 s. 117.

81 Proceeding by landlord against tenant holding over after end of tenancy

(a) the term or interest of a tenant holding land under a lease or written agreement for a term or number of years certain or from year to year has ended or been determined by a notice to quit; and

(b) a lawful demand in writing for possession of the land has been made and signed by the landlord or the landlord's agent and served personally on the tenant or left at the tenant's usual place of residence; and

(c) the tenant refuses to deliver up possession of the land; and

(d) the landlord commences a proceeding for the recovery of the land—

the landlord must, if the landlord intends to apply for security under subsection (2), serve notice of that intention on the tenant.

(2) If—

(a) an appearance is filed for the tenant; and

(b) an affidavit of service of the writ and notice referred to in subsection (1) is filed; and

(c) the landlord produces the lease or agreement or a counterpart or duplicate of it; and

(d) it is proved on affidavit that—

(i) the lease or agreement was executed; and

(ii) the tenant has been in possession of the land under the lease or agreement; and

(iii) the interest of the tenant has ended or been determined by a notice to quit; and

(iv) possession has been lawfully demanded in the manner described in subsection (1)(b)—

the landlord may apply to the Court for an order that the tenant show cause, within a time fixed by the Court, why the tenant should not enter into a bond with two sufficient sureties in a reasonable sum conditioned to pay the costs and damages which are recovered by the landlord.

(3) The Court may make the order applied for either wholly or partly.

(4) If—

(a) an order is made under subsection (3) and the tenant does not comply with it and does not raise any ground to induce the Court to enlarge the time for compliance with it; and

(b) the landlord proves on affidavit that the order was made and served and not complied with—

the landlord is entitled to judgment for the recovery of the land and costs.

No. 6387 s. 118.

82 Provisions concerning securities

(1) A security under section 81 must be taken in the manner and before the officer that the Court directs.

(2) A proceeding must not be commenced on a security if more than 6 months has passed since possession of the whole or part of the land was delivered to the landlord.

No. 6387 s. 120.

83 Saving of former remedies

This Division does not affect the right of a landlord to bring any other proceeding or seek any other remedy.

No. 6387 ss 121, 122.

84 Proceeding for recovery of land by mortgagee

(a) a proceeding is brought by a mortgagee or the heir, executor, administrator or assignee of a mortgagee for the recovery of any mortgaged land; and

(b) a proceeding is not then depending for or touching the foreclosing or redeeming of that land—

then if the person who has the right to redeem that mortgaged land and who appears and becomes defendant in the proceeding at any time pending the proceeding pays to the mortgagee or, if the mortgagee refuses, brings into the Court, all the principal money and interest due on the mortgage and all costs expended in the proceeding on the mortgage, the amount so paid to the mortgagee or brought into the Court is to be taken to be in full satisfaction and discharge of the mortgage.

(2) The amount to be paid to the mortgagee or brought into the Court is to be determined by the Court.

(3) On the amount being paid to the mortgagee or brought into the Court, the Court must—

(a) discharge the mortgagor of and from the mortgage; and

S. 84(3)(b) amended by No. 51/2000 s. 11(b)(i)(ii).

(b) by order compel the mortgagee, at the expense of the mortgagor, to assign or reconvey the mortgaged land or the mortgagee's estate and interest in it and deliver up all documents in the mortgagee's custody relating to the title to it to the mortgagor who paid the amount or brought it into the Court or to the heir, executor, administrator or assignee of that mortgagor or to another person nominated by that mortgagor or the heir, executor, administrator or assignee of that mortgagor.

(4) Nothing in this section—

S. 84(4)(a) amended by No. 35/1996 s. 453(Sch. 1 item 80.10).

(a) applies if the person against whom the redemption is sought insists, by writing signed by that person or by that person's legal practitioner or agent and delivered to the legal practitioner or agent for the other side before the amount is brought into the Court—

(i) that the party seeking the redemption does not have the right to redeem; or

(ii) that the land is chargeable with other or different principal sums than what appear on the face of the mortgage or are admitted by the other side; or

(b) applies if the right of redemption is controverted or questioned by or between different defendants in the same proceeding; or

(c) prejudices any subsequent mortgage or encumbrance.

Division 5—Relief from forfeiture

No. 6387 s. 123.

85 Relief against forfeiture for non-payment of rent

(1) In any proceeding for forfeiture for non-payment of rent, the Court may grant relief against forfeiture in a summary manner and may do so subject to such terms and conditions as it considers just.

(2) If a lessee is granted relief under this section, the lessee holds the land in accordance with the terms of the lease without the need for a new lease.

(3) In subsection (2) lessee includes the executor, administrator or assignee of a lessee.

Division 6—Arrest in pending proceedings

No. 6387 s. 127.

86 Arrest on mesne process abolished

Subject to this Division, a person must not be arrested on mesne process in any proceeding.

No. 6387 s. 128.

87 Court may order arrest

If a plaintiff in a proceeding in which a defendant would (prior to 3 October 1839) have been liable to arrest, shows to the satisfaction of the Court by affidavit (whether of the plaintiff or of some other person)—

(a) that the plaintiff has a cause of action against the defendant to the amount of $50 000 or more or has sustained damage to that amount; and

(b) that there is probable cause for believing that the defendant is about to remove out of Victoria or is making preparations to remove out of Victoria; and

(c) that the proceeding will be defeated unless the defendant is forthwith apprehended—

the Court may order that the defendant be arrested and imprisoned until further order of the Court or until security is given by the defendant.

No. 6387 s. 136.

88 Security to be given by defendant

(1) The security to be given by a defendant may be—

(a) a deposit in court of the amount mentioned in the order (not exceeding the amount claimed in the proceeding); or

(b) a bond to the plaintiff by the defendant and two sufficient sureties (or, with the leave of the Court, either one surety or more than two) that if judgment is entered for the plaintiff for the sum named in the bond or any lesser sum the sum for which judgment is so entered shall forthwith be paid to the plaintiff; or

(c) with the plaintiff's consent, any other form of security.

(2) The plaintiff may, within four days after receiving particulars of the names and addresses of the proposed sureties, apply to the Court to have the sufficiency of the security determined.

(3) Unless the plaintiff applies under subsection (2) within the time stated in that subsection, the security is to be taken to be sufficient.

No. 6387 s. 137.

89 Control of the Court

The money deposited, the security and all proceedings concerning the security are subject to the order and control of the Court.

No. 6387 ss 129, 130.

90 Making of order to arrest

(1) An order to arrest may be made, and the defendant arrested under it, at any time after the commencement of the proceeding and before final judgment has been obtained.

(2) An order to arrest is to be made on affidavit and without notice to any person.

(3) A defendant who, having been arrested under the order, is in custody and has not previously been served with a copy of the originating process, may be lawfully served with it.

No. 6387 s. 130.

91 Defendant may apply for relief

The defendant may apply to the Court at any time—

(a) to rescind the order to arrest; or

(b) to vary the order to arrest; or

(c) to be discharged from custody; or

(d) for such other relief as is just.

No. 6387 s. 131.

S. 92 amended by No. 35/1996 s. 453(Sch. 1 item 80.10).