Victorian Current Acts Victorian Current ActsS. 42(1) substituted by No. 62/2012 s. 14(1).
(1) A legal practitioner acting for or on behalf of a party to the proceeding must file a proper basis certification which complies with this section in the following circumstances—
(a) on the filing of a party's first substantive document in a civil proceeding;
(b) on the filing of any subsequent substantive document in a civil proceeding which—
(i) adds or substitutes a party; or
(ii) makes, adds or substitutes a claim or cause of action; or
(iii) makes, adds or substitutes a substantive defence or substantive matter by way of response or reply; or
(iv) makes, adds or substitutes a material allegation denial or non-admission of fact or law; or
(v) makes any significant amendment to a first substantive document or a subsequent substantive document;
(c) as provided for by rules of court;
(d) as directed by the court in any civil proceeding.
S. 42(1A) inserted by No. 62/2012 s. 14(1).
(1A) In the case of a civil proceeding which involves allegations of fact, a legal practitioner making a proper basis certification must certify that on the factual and legal material available—
(a) each allegation of fact in the document has a proper basis;
(b) each denial in the document has a proper basis;
(c) there is a proper basis for each non-admission in the document.
S. 42(1B) inserted by No. 62/2012 s. 14(1).
(1B) In the case of a civil proceeding commenced by originating motion seeking a particular legal relief or remedy, a legal practitioner making a proper basis certification must certify, as the case requires, that on the factual and legal material available—
(a) the claim in the document, or a response to a claim in the document, has a proper basis; or
(b) the question posed by the party to the court in the document, or a response to a question posed, has a proper basis.
S. 42(1C) inserted by No. 62/2012 s. 14(1).
(1C) Despite subsections (1) to (1B), a legal practitioner is not required to make a proper basis certification if rules of court provide that a process or document is exempt from the proper basis certification requirement because it is administrative in nature.
Example
Registration of judgments.
(2) A proper basis certification must be in accordance with the rules of court.
(3) For the purposes of this section, a determination by a legal practitioner—
(a) as to whether any allegation or denial of fact has a proper basis, on the factual and legal material available, must be based on a reasonable belief as to the truth or untruth of the allegation or denial; or
S. 42(3)(b) amended by No. 62/2012 s. 14(2)(a).
(b) as to the proper basis of any non-admission is that the legal practitioner does not know, and therefore cannot say, whether a fact alleged or denial is true or untrue; or
S. 42(3)(c) inserted by No. 62/2012 s. 14(2)(b).
(c) as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.
(4) If a party is not represented by a legal practitioner—
(a) the proper basis certification must be completed personally by that party; and
(b) a reference in this section to "legal practitioner" is to be construed as a reference to that party.
S. 43 repealed by No. 1/2011 s. 8.
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