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Practice Notes

Every Issue

Cite as: (2008) 82(10) LIJ, p. 57

Federal Court

Cite as: (2008) 82(10) LIJ, p. 57

Application for Divorce form

In February 2007 the Federal Magistrates Court released a new Application for Divorce, and other divorce forms. These forms are available on the Family Law Courts website at: http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Divorce+forms+and+kits.

An online divorce application form is also available at http://www.divorce.gov.au.

Since the introduction of the new divorce forms, feedback has been positive. However, there are still some applications which are
filed using the previously prescribed form(s).

This notice is to advise practitioners and litigants that registry staff have been requested not to accept divorce forms which are no longer approved for use in the Court after 31 December 2008.

Adele Byrne
Principal Registrar

11 August 2008

County Court

Cite as: (2008) 82(10) LIJ, p. 57

Operation and Management of the Family Property Division

Practice Note PNCI 6-2008

Introduction

1. The aim of the Court in civil litigation is to process cases to resolution as efficiently as possible. Proceedings should be determined quickly and cheaply, consistent with the demands of justice.

2. Order 34A of the Rules of Civil Procedure provides a framework for the management of all civil litigation by the Court. Civil litigation is managed in two lists – the Damages and Compensation List and the Commercial List. A number of specialist Judges have been appointed to manage these lists and Order 34A describes the relevant procedures.

3. This Practice Note deals with the operation of the Commercial List Family Property Division.

The Family Property Division is established under O.34A.06(1)(d) of the Rules of Court. Order 34A.06(6) provides that the Family Property Division shall consist of any proceeding in which orders are sought pursuant to Part IX of the Property Law Act 1958 or Part IV of the Administration and Probate Act 1958.

The Practice Note does not relate to the operation of the Commercial List General Division, the Expedited Division, the Banking and Finance Division or the Building Cases Division.

The Practice Note partially replaces the 2007 Consolidated Practice Note, Operation and Management of the Business List, Commercial and Miscellaneous Divisions (Melbourne Registry).

4. All enquiries as to the operation of this Practice Note should be directed to the Directions Group or to the Associate to Judge Misso:

  • Directions Group Coordinator – Kate Alberico ph 8636 6273;
  • Directions Administrators – Karen Richardson ph 8636 6690; Melanie McKernan ph 8636 6692; Emmalaura Messer ph 8636 6691;
  • Associate to Judge Misso – Kath Lambert ph 8636 6621.

All correspondence for the Family Property Division may be sent by facsimile to 8636 6056 or emailed to directions.group@countycourt.vic.gov.au.

Issue of proceedings

5. When a proceeding is issued, the plaintiff’s practitioner must complete a Request to Enter a List form nominating which List and which Division the proceeding is to be entered and in certain cases a more precise description of the principal cause of action.

6. Unless a further order is made by the Court, the proceeding will remain in that List or Division and will be managed until the case is resolved.

7. All correspondence received by the Court in the Commercial List Family Property Division is logged on CLMS and may be viewed on CourtConnect on the County Court website at http://www.countycourt.vic.gov.au.

After an appearance is filed

8. If a proceeding is to be defended, this will be indicated by a defendant filing an appearance. The Rules of Court then require a defendant to file a defence within a further period of 30 days.

The administrative mention

9. The filing of an appearance will trigger the administrative mention procedure. A notice will be sent by the Court to the parties requiring the parties to submit proposed consent orders to the Court by a nominated date. No appearance in Court is required on this date. The consent orders must be signed by all parties on the record, outline the interlocutory steps required and indicate the mode of trial. It is expected that in the majority of proceedings the parties will themselves resolve issues arising during the interlocutory stages of the proceeding to ensure that the proceeding progresses to a hearing date at the earliest opportunity.

10. Submission of orders to be dealt with “on the papers” denotes only that the parties have agreed that the matter is to be determined by the Judge in Chambers on the material provided without requiring any argument in open Court. It should not be expected that the Judge will “rubber stamp” consent orders proposed.

11. Parties submitting orders on the papers should also submit proposed dates for interlocutory steps. If no dates are provided, dates will be given by the Judge in charge of the Division. Inappropriate dates submitted, however, are liable to be changed by the Judge without further recourse to the practitioners.

12. If the parties are not ready to proceed by the administrative mention date, they should contact the Directions Group indicating why the matter is not ready and requesting that the case be listed for further administrative mention.

13. Failure to respond to an administrative mention notice may result in a proceeding being struck out by the Court.

14. A standard set of directions orders are contained on the Family Property Division page of the County Court website: http://www.countycourt.vic.gov.au. In general terms, the standard orders provide for the articulation of the matters in dispute by the delivery of pleadings and particulars, affidavits, mutual discovery and exchange of expert reports, mediation and the setting down of the case for trial.

Directions hearings

15. If the parties do not agree upon appropriate interlocutory directions, the Court should be immediately requested through the Directions Group to nominate a directions hearing date, at which time these matters can be discussed.

16. If the parties later agree on appropriate interlocutory directions, they must forward proposed consent orders to the Directions Group by 12 noon on the day before the directions hearing is scheduled to take place.

Requesting standard timetabling orders

17. Parties are requested to submit orders in the form of the standard orders available on the Commercial List Family Property Division page of the County Court website. The orders are deliberately brief and the parties are expected to cooperate and reach agreement on the detailed steps required, for example in organising mediation or preparing a court book.

18. If possible draft “orders on the papers” should be submitted to the Directions Group by email as this will facilitate the production of orders.

Pleadings

19. A proceeding under Part IX of the Property Law Act 1958 may be commenced by either originating motion supported by affidavit or by pleadings.

20. If a proceeding under Part IX of the Property Law Act 1958 does not raise any legal issues beyond the provisions of Part IX then it would be preferable if the proceeding was commenced by originating motion supported by affidavit.

21. A proceeding under Part IV of the Administration and Probate Act 1958 should be commenced by originating motion supported by affidavit.

22. Pursuant to O.13, Ch. II County Court Rules – County Court Miscellaneous Rules 1999 – the Court is required to ascertain the nature of the relief which the plaintiff seeks; and, the persons or classes of persons who would be affected by the grant of that relief.

23. The Court will invariably direct that a notice of the application be served on such persons or classes of persons who are identified by the parties as beneficiaries under the will or a claimant in an intestacy, with the notice to take the form of a court-approved schedule attached to the order.

24. Correspondence submitted should contain sufficient information to enable the Judge to ascertain the matters set out in r13.07.

25. The parties must give particular consideration to whether there are legal issues raised by the proceeding which should at first be defined by pleadings. Legal issues previously not defined and subsequently raised at trial for the first time may frustrate the Court’s aim to determine a proceeding quickly and cheaply, and may lead to the necessity to adjourn a proceeding.

26. In some cases, a plaintiff may issue proceedings where there is little merit in the claim or alternatively an appearance is filed where a defendant has no real defence.

27. In these cases the Court will, so far as it can, assist the parties with procedures designed to resolve the dispute as soon as possible. The Court may, for example, order that a party swear an affidavit setting out the basis of their claim or their defence.

28. In seeking appropriate consent orders, the parties should always keep in mind the overriding objective that cases should be determined at the earliest reasonable opportunity.

Interrogatories and discovery

29. Interrogatories will only be permitted in an exceptional case where the time taken to administer interrogatories and have them answered is justified by the criterion that it is likely to bring the proceeding to resolution at an earlier time.

30. With discovery of documents, the objective is to ensure that the procedure allows each party access to documents in circumstances where the absence of discovery would not permit justice to be done between the parties. On the other hand, it is recognised that discovery can be a lengthy and costly process and the level of discovery appropriate in a case must be measured against the issues
in dispute.

31. Generally, the Court will require discovery of certain minimum documents reflected in the standard directions orders. A “catch-all” category comprises those documents it is “reasonable in the circumstances” to discover. Initially, it is for the parties to determine the question of reasonableness. If the parties are unable to do so, they can obtain the assistance of the Court.

32. Generally, the Court will not participate in the process of approving lists of discoverable documents. To do so in advance takes a lot of time and removes from the parties the responsibility of sorting these issues out between themselves. On the other hand, the preparation of discovery lists is a useful process with which most practitioners are now familiar and the parties may continue to find it the best way of describing the degree of discovery which, in a particular case, is to be regarded as “reasonable”.

Case conference

33. As part of a Pilot Scheme in Melbourne, where the amount in dispute is below $200,000, proceedings in this Division will be listed for a case conference at
the County Court in Melbourne, rather than mediation. Parties are required to advise the Court of the net value of the assets in dispute when submitting consent orders.

34. Parties in circuit proceedings may request a case conference in Melbourne.

35. The standard form of orders for a proceeding to be listed for case conference is available on the Court’s website at http://www.countycourt.vic.gov.au.

36. The standard form of order listing a procedure for a case conference is as follows:

“A case conference will be held on [a date to be nominated by the Court] at [time] before His Honour Judge Misso. The conference will be held in open court although the parties may retire for private discussion during the conference. The plaintiff and the defendant must attend the conference. The purpose of the conference is to try and settle the dispute or alternatively to make orders setting the proceeding down for trial and determining the appropriate further interlocutory steps.”

37. For proceedings where the net value of the assets in dispute is above $200,000, the Court may order a case conference in certain circumstances. The parties themselves, or a representative of a corporate party with authority to settle the proceeding, must attend. The parties may be ordered, in advance of the conference, to file and serve a position paper of two pages discussing the issues of fact and law raised in the case, or to detail in an affidavit the circumstances relevant to a disputed transaction, or a party may be required to produce copies of relevant documents relating to issues of liability and/or quantum.

38. The case conference will be conducted by a Judge in open court. The Judge will expect counsel to be familiar with the case and to be able to discuss the issues of fact and law which arise. There will be the opportunity for the parties to retire to conduct private meetings.

39. The objectives of the case conference are to settle the proceeding, or if this is not possible, to refine the issues and to determine the most appropriate interlocutory steps to bring the matter quickly to trial.

Mediation

40. It is to be expected that all proceedings will be mediated if there is no case conference. The timing of the mediation will depend on the parties’ assessment. Generally, the nature of the dispute should have been articulated before mediation, but otherwise the mediation should be held before substantial costs have been incurred by the parties. The parties must conduct the mediation in accordance with the procedures published on the Commercial List Family Division page of the County Court website: http://www.countycourt.vic.gov.au.

Setting down for trial

41. The Court can generally accommodate a trial date for a proceeding within a relatively short period unless the anticipated hearing time exceeds 10 days. The parties should seek the earliest possible hearing date from the Court consistent with the determination of the most efficient timetable for the completion of the interlocutory steps.

Setting down for trial fee

42. All orders that a proceeding be set down for trial will be accompanied by a requirement to pay the setting down for trial fee. A setting down for trial fee will be payable, generally 30 days after a trial date is set.

43. Practitioners are reminded that non-payment of the fee will result in the trial date being automatically vacated. If this occurs, prompt application for reinstatement, and payment of the fee, will ordinarily result in the trial being refixed for the same date.

44. A separate trial fee is payable each time a proceeding is allocated a trial date. Multiple adjournments of trial dates will therefore attract multiple trial fees.

Form and production of orders

45. The standard form of orders should be used in most cases. The orders are deliberately brief, for example, an order that mediation of the dispute be completed by a particular date assumes that the mediation will be conducted in accordance with a set of procedures which have been established over many years. There is generally no need to spell out the detail of these orders as they are well understood and the Court will enforce the reasonable and usual understanding of these procedures if a dispute arises between parties.

46. Orders are generally produced by the Court and distributed to the parties. All orders on the papers are produced directly on CLMS and are available to be accessed by practitioners through CourtConnect.

Vacation of trial dates

47. On occasions, trial dates will need to be vacated. Applications to vacate trial dates should be made at the earliest opportunity and only in exceptional cases should this be within 30 days of the trial. The application should be made in the first instance to the Judge in charge of the Family Property Division. Callovers of cases fixed for trial will no longer be conducted.

Applications to vacate trials where all parties consent

48. Applications to vacate trials should be made in writing to the Directions Group or to the Associate to the Judge in charge of the Division.

The application must set out the reasons for the need to vacate the trial date and be signed by all parties to the proceeding.

Upon receipt of the application the Judge in charge of the List will determine whether affidavits in support are required, or whether the application is to be listed for a directions hearing before the Judge in charge of the List or in the Practice Court.

Contested applications to vacate a trial date

49. Applications to vacate trial dates where the parties do not agree should be made in writing with notice to the other parties, to the Directions Group or to the Associate to the Judge in charge of the Division.

The application must set out the reasons for the need to vacate the trial date.

Upon receipt of that application the Judge in charge of the List will determine whether affidavits in support are required, or whether the application is to be listed for a directions hearing before the Judge in charge of the List or in the Practice Court.

Ceasing to act

50. If a case is set down for trial and a practitioner is seeking leave to file a Notice of Ceasing to Act, that application must be made at the earliest opportunity, as otherwise the practitioner may not be released from their obligations.

Settlements

51. If an action resolves, the Court should be informed at the earliest opportunity to enable hearing dates to be backfilled in order to maximise the use of judicial resources.

52. Orders can be made on the papers striking out or dismissing cases by consent and for other orders sought (for example, for costs) provided the consent of all parties is provided.

53. If it is intended to file a Notice of Discontinuance, parties are reminded that the consent of all parties or the leave of the Court is required if this is done after pleadings have closed. A Notice of Discontinuance must be filed with the Registry. It is not sufficient for an unfiled Notice of Discontinuance to be faxed to the Directions Court.

54. Practitioners should ensure that applications for orders on the papers disposing of a proceeding clearly set out what is proposed in the event that there is a counterclaim or third party proceedings and are consented to by all parties to the proceeding.

Practice Court applications

55. Ordinarily all interlocutory matters in the Family Property Division will be raised before the Judge in charge of the Family Property Division by application to the Directions Group or the Division Associate. In urgent circumstances, or if the Judge in charge of the Division is unavailable, application should be made to the Practice Court by the issue of a chamber summons.

56. Ordinarily it will be sufficient for an interlocutory matter to be raised by correspondence to the Judge in charge setting out the nature of the interlocutory matter and the relief sought on notice to the other party. It may be necessary for an interlocutory matter to be supported by affidavit, but only where the party bringing the interlocutory matter considers that the application should be supported by evidence.

The use of a summons should not be the preferred means of bringing an interlocutory matter to Court, save where some substantive relief is sought which requires formulation of specific relief by reference to the Rules or any relevant enactment.

Family Property Division Users Group

Members of the legal profession may contact the Users Group to request guidance or offer feedback or suggestions.

The Family Property Division Users Group presently comprises the following representatives:

Graham Robertson, C/- List D, Owen Dixon Chambers, 205 William Street, Melbourne 3000. grahamrobertson@vicbar.com.au

Carolyn Sparke, C/- List W, Owen Dixon Chambers, 205 William Street, Melbourne 3000. sparkie@vicbar.com.au

Patrick O’Shannessy, C/- Clerk L, 555 Lonsdale Street, Melbourne 3000. oshann@flagstaff.net.au

Stephen Gregory, Kenna Teasdale Lawyers, Level 4, 114 William Street, Melbourne 3000. stephen.gregory@kennateasdale.com.au

Lee Formica, Taussig Cherrie & Associates, Level 8, 469 La Trobe Street, Melbourne 3000. lformica@taussigcherrie.com.au

Robyn Sparks, Aitken Walker & Strachan, Level 1, 114 William Street, Melbourne 3000. rsparks@aitken.com.au

Kathy Wilson, Aitken Walker & Strachan, kwilson@aitken.com.au

Judge Misso
Judge in charge,
Family Property Division
21 August 2008

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