01 April 2021
Litigation - Writ and statement of claim
I want to file a statement of claim in the commercial division of the Supreme Court of Victoria. Do I file a summons or a writ to commence proceedings?
Thank you for the question.
The Commercial Court has subsumed the former Commercial & Equity division of the Supreme Court.
The By Lawyers Acting for the Plaintiff – Supreme Court (Vic) commentary provides the following:
File the correct originating process and the number of copies necessary to serve each defendant plus one copy to be retained on file in the registry of the court with the correct filing fee. The Overarching Obligations Certificate, form 4A, and Proper Basis Certificate, form 4B, must be filed at the same time. Once filed arrange service on the defendants.
Most proceedings in the court are issued by writ: r 4.04 Supreme Court (General Civil Procedure) Rules 2015. An originating motion should only be issued where the rules require it. These are generally cases where there are no facts in dispute or where there is no defendant.
The formal requirements for the originating process are contained in r 5.01 to 5.11. See particularly r 5.04 as to the writ including a statement of claim.
In the Supreme Court it is preferable to brief counsel to draw the statement of claim in all but the most straightforward cases. This reduces the risk of a strike out application, or of the need to amend later.
Only interlocutory applications are commenced by summons unless the court otherwise orders: r 46.02.
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