Personal injury litigation 101: First steps for when you are being sued in Victoria
By Chris Jones and Alicia Taylor
Receiving a Writ or Originating Motion in Victoria signifies the commencement of legal proceedings against you. This article outlines what these documents mean and the critical steps required to protect your position within strict timeframes.
Disclaimer: This is general information only and not legal advice.
In brief
In civil personal injury litigation, being served with a Writ or Originating Motion in Victoria means you are being sued. From the moment those papers land in your hands, the clock starts ticking. Deadlines are strict and missing them can result in a judgment against you without your side of the story being heard. This article explains what these documents mean and the immediate steps you need to take.
Background: Understanding Civil Claims in Victoria
In Victoria, you are considered to be sued for personal injury once you receive a Writ or an Originating Motion, delivered to you in person or if a business, sent to your business address.
-
A Writ will also have a "Statement of Claim" or "Indorsement of Claim" that sets out what is being alleged by the plaintiff. Most cases begin by the plaintiff filing a Writ and Statement of Claim.
-
An Originating Motion may be used if it is required by law or there is no defendant.
All civil proceedings will need the plaintiff to file a "Statement of Claim" setting out the law and facts that is their basis for claiming against a defendant. A Statement of Claim should include:
-
who the plaintiff says is the defendant;
-
the facts of the incident that they say caused an injury; and
-
the legal and factual basis for which they say the defendant is responsible.
Litigation has many rules about time. After filing a claim with the court, the plaintiff has one year to serve it on the defendant.
Once you receive a claim, which can be to a business address, it is important to act fast. If you do not respond to being served with proceedings, you can prejudice your rights and the plaintiff may seek to have the court find against you and award monetary damages without you having the opportunity to respond to the claim.
When you receive a Writ or Originating motion
-
Immediately, check whether you have insurance coverage. Find your insurance policy and call your insurance broker or insurance provider. It may be that you have insurance coverage to respond to and defend the claim.
-
Do not respond to letters or communications from the plaintiff until you appoint a lawyer, unless you choose to defend the claim yourself.
-
Find all the previous written information in your possession you can about what is being alleged, but do not investigate yourself.
-
Speak to and engage a lawyer or law firm to represent you. If you have insurance, they will likely have law firms that they would like to use. If you do not have insurance or if it is declined or if you have an insurance broker, they may be able to steer you in the right direction.
-
Look at who is named as the defendant. Is it a business, person or unincorporated entity? This determines who should be responding to the claim.
A "Notice of Appearance" will need to be filed telling the Court who is responding to the claim, and if you are legally represented. This generally needs to be filed 10 days from the date you received the claim (longer if it’s interstate or overseas).
Once a "Notice of Appearance" is filed, time starts ticking to file a defence to the claim (30 days in Victoria) as well as the forms regarding your obligations to the court.
Litigated claims have timeframes that start running when documents are served. Even if you do not think you are liable for what is being alleged or are not a proper defendant, the Court can still make a finding against you or you can run out of time. In personal injury claims, the plaintiff will, in many circumstances have obtained a "certificate of assessment" from a doctor that says they have a significant injury for the purposes of the law. Your case may be prejudiced if you do not respond within 60 days after receiving the certificate and required information, under section 28LWE Wrongs Act 1958 (Vic). There is an exception to this requirement if what is alleged relates to sexual assault or misconduct, asbestos, transport accidents or a worker according to section 28LC Wrongs Act 1958 (Vic).
Once you are legally represented, your lawyer will provide you with advice, recommendations and respond on your behalf.
More information can be found on the County Court website HERE and on the Supreme Court website HERE.
If you’re unsure about your insurance coverage or need guidance on defending a claim, reach out to our Insurance team for tailored advice and support.
