Peter A Clarke

The Chief Justice of the Victorian Supreme Court has published a notice to the profession regarding the conduct of applications to set aside statutory demand. The Notice sets down a very specific timetable which must be followed.  There will be consequences for failing to comply.  The second feature of the Notice is a requirement to keep affidavits concise and exhibits “..limited to those documents which are critical to the grounds relied upon by the plaintiff and the real issues in dispute.”

Some points that practitioners must consider:

1. the court will fix a date for final hearing in the timetabling orders;
2. first, the Notice to the Profession must be served on the defendant (Paragraph 4.1).  That is a new development;
3. “as soon as practicable” after filing (Paragraph 5.2), the Court will make timetabling orders in the form of Annexure A to the Notice which requires:
   • seven days after filing of the Originating Process the plaintiff to file ,the plaintiff file an affidavit of service of the Originating Process, supporting affidavit, and a copy of the Notice to Profession
   • 14 days after filing of the Originating Process] the defendant file and serve:
     • an affidavit of service of the statutory demand; and
     • any affidavit on which it intends to rely in opposition to the application; and
   • 14 days after filing of the Originating Process] the defendant advise chambers that the defendant disputes jurisdiction
   • 21 days after filing the Originating Process] the plaintiff must:
     • file and serve any affidavit on which it intends to rely upon in reply;
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers of the judicial officer a bundle of authorities that the plaintiff relies upon in pdf text-searchable format, with cases arranged in alphabetical order and with an electronic bookmark for each case
   • 28 days after filing of the Originating Process the defendant will:
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers a bundle of authorities that the defendant relies upon which are not already included in the plaintiff’s bundle.
4. submissions must identify why or why not there is a genuine dispute/offsetting claim/some other matter with reference to the affidavit material;
5. in advance of any non compliance with the timetable/exercise of liberty the parties have to confer regarding the amendments and email the Court to “explain the reason that a variation is sought and provide consent or competing draft minutes of order addressing a revised timetable which maintain the final hearing date and ensures that the last document is filed no later than 72 hours before the final hearing;”
6. evidence or submissions filed out of time will not be considered at the final hearing without a summons for leave supported by an affidavit explaining non-compliance (Paragraph 8.3).
7. in the event of non-compliance the Court may, of its own motion, make a self-executing or ‘unless’ order disposing of the proceeding;
8. the Court will aim to schedule the final hearing to be held within 6 weeks of filing, listed for half a day (Paragraph 8.1); and
9. within 3 days of the hearing the practitioners briefed to appear at the final hearing are to confer with a view to resolving the dispute or narrowing the issues.  The plaintiff must email the Court on behalf of the parties a “joint statement” of  the remaining issues in dispute.

The Notice provides: 

1.              INTRODUCTION

The Chief Justice has authorised the issue of the following notice.

2.              COMMENCEMENT

This notice applies to any Originating Process filed on or after 21 July 2025 which seek orders under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) setting aside a statutory demand (‘Set Aside Application’).

3.              PURPOSE OF THIS NOTICE

3.1 The purpose of this notice is to give effect to the Overarching Purpose of the Civil Procedure Act 2010 (Vic) (‘CPA’) by facilitating the just, efficient, timely and cost-efficient resolution of Set Aside Applications.

4.              SERVICE OF A COPY OF THIS NOTICE

4.1 The plaintiff must serve a copy of this notice on the defendant at the time of service of the Set Aside Application.

5.              TIMETABLING ORDERS

5.1The Originating Process will initially be listed on a date to be fixed.

5.2As soon as practicable after a Set Aside Application has been filed, the Court will make a timetabling order in the form in Annexure A to this notice of its own motion.

5.3 If the parties seek to amend the timetable, they may do so via the means set out in paragraph 8 of the timetabling order. Any amendments are to maintain the final hearing date and ensure that the last document is filed no later than 72 hours before the final hearing.

5.4 In the event of non-compliance with the timetable, the Court may, of its own motion, make a self-executing or ‘unless’ order disposing of the Set Aside Application.  For example, an order that unless a timetabling order is complied with by a particular date, the proceeding will be dismissed or relief sought granted.

5. 5In the event that the Court is notified of a jurisdictional challenge in the manner contemplated by paragraph 3(b) of the timetabling order, the Court may list the proceeding for hearing at short notice to determine this issue.

6.              EVIDENCE

6.1 Affidavit evidence filed in respect of a Set Aside Application should be concise and exhibits limited to those documents which are critical to the grounds relied upon by the plaintiff and the real issues in dispute.

7.              RESOLUTION BY AGREEMENT

7.1 Parties are encouraged to mediate their dispute or otherwise engage in settlement negotiations. The Court will consider orders sought by consent to refer the proceeding to judicial mediation.  However, the fact of ongoing or anticipated settlement negotiations will not ordinarily provide proper foundation for an application to vary the timetabling orders or adjourn the final hearing.

7.2 The parties must advise the Court as soon as practicable in the event that a Set Aside Application has resolved, so that the final hearing date may be re-allocated to other litigants.

8.              FINAL HEARING

8.1 As far as is possible, the Court will list Set Aside Applications for final hearing before an Associate Judge or Judicial Registrar within 6 weeks of filing. The final hearing will be listed for no more than half a day.  In the event it appears that the costs of the proceeding will exceed the debt the subject of the demand, the Court may make orders limiting the hearing time with the intention of limiting costs.

8.2 The Court expects there will be strict compliance with the directions and the parties will be ready to proceed on the day appointed for the final hearing.

8.3 Evidence or submissions filed out of time will not be considered at the final hearing without a summons for leave supported by an affidavit explaining non-compliance.

8.4 Wherever possible, the Court’s reasons for decision will be delivered ex tempore, or orally shortly after the hearing has concluded. Generally, the Court’s reasons will address dispositive issues only.

9.              COSTS

9.1 Parties are reminded of their overarching obligation under s 24 of the CPA to ensure costs are reasonable and proportionate. The Court may exercise its discretion to refuse to award costs in respect of unnecessarily lengthy evidence or where issues or grounds were unnecessarily or unsuccessfully pursued.  

9.1 Parties should be prepared to argue costs at the time the Court’s decision is handed down, without filing additional evidence or submissions. Correspondence between the parties relied upon on the question of costs may be handed up to the Court.  Affidavits solely addressing the question of costs are discouraged, and the Court may exercise its discretion not to allow costs for unnecessary affidavits.