Victorian Consolidated Regulations

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SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 - REG 56.01

Judgment or order instead of writ

    (1)     Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.

Rule 56.01(2) amended by S.R. Nos 51/2016 rule 8(1), 32/2018 rule 7(1).

    (2)     The proceeding shall be commenced by filing an originating motion in Form 5G naming as defendant

        (a)     a person, if any, having an interest to oppose the claim of the plaintiff; and

        (b)     the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding.

    (3)     A person named as defendant in accordance with paragraph (2)(b) who is sued in the capacity of a judicial or public authority or as the holder of a public office shall be described in the originating motion by the name of that authority or the name of that office.

    (4)     In addition to complying with the requirements of Rule 5.05, the originating motion—

        (a)     shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and

        (b)     where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission.

    (5)     Without limiting paragraph (6), at the time of filing the originating motion the plaintiff shall file an affidavit setting out the acts, facts, matters and circumstances relied upon in support of the plaintiff's claim.

Rule 56.01(5.1) inserted by S.R. No. 51/2016 rule 8(2).

    (5.1)     There shall be included as exhibits to the affidavit—

        (a)     a copy of any judgment, order, conviction, determination or decision in respect of which relief is sought; and

        (b)     a copy of any reasons given for any such judgment, order, conviction, determination or decision

or their absence as exhibits shall be accounted for in the affidavit.

    (6)     The Court shall not grant any relief or remedy in the nature of certiorari unless—

        (a)     a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced; or

        (b)     if a copy is not produced, the non-production is accounted for to the satisfaction of the Court.

Rule 56.01 (7)–(10) inserted by S.R. No. 51/2016 rule 8(3), revoked by S.R. No. 32/2018 rule 7(2).

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