Civil Proceedings

In Jacobs’Laws of Trusts in Australia (7th Ed) the following is stated at [2307]:

“In all jurisdictions there is avialable to a beneficiary a simple procedure by way of originating summons whereby specific questions of construction of the trust instrument may be determined by the court, and specific questions of administration  of the trust may be deal with without the necessity for a decree for general administration”

In South Australia this right is covered by South Australian Supreme Court Rules 2006Rule 207 

In Victoria this right is covered by the Supreme Court (General Civil Procedure) Rules 2005 Reg 54.02 

The mere fact that a beneficiary alleges a breach of trust against the trustee under circumstances which do not involve disputed facts, does not prevent the use of the summary proceedings by way of originating summones {Pertpetual Trustee Co v Watson (No. 1) (1927) 28 SR (NSW) 39; Trusteees Executors and Agency Co Ltd v Smith (1903) 28 VLR 707}.

The originating process used for resolving legal disputes differs from those involving disputed factual issues. In this category, the process initiates a summary procedure which utilises affidavits rather than pleadings. Most equity and probate matters begin in this way.

In New South Wales (r 6.2,6.4) it is called a summons; in Western Australia (O 4 r 1) it is called an originating summons; and in Queensland (r 11) it is called an application. In Victoria and the Northern Territory ( r 4.05) it is called the originating motion; in Tasmania, the originating application.

In Victoria where there is no defendant Form 5D is used {Rule 5.02(2).

Form 5B is used in an Originating Motion Between Parties

In cases which concern the respective rights of beneficiaries or their identity the proper procedure is to proceed by way of originating summons (originating motion) where all parties are served and have the opportunity to be heard {Re Kirkegaard [1950] St R Qd 144; Re Petersen [1920] St R Qd 42}.

The court has no jurisdiction under this section to confer a power upon a trustee which he does not possess under the trust instrument {Harrison Jones & Devlin v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266}.

Where a dispute involves factual issues, proceedings must be commenced by writ in the High Court (r 20.01.4), the Northern Territory (r 4.01), Tasmania (r 88), Victoria ( r 4.01) and Western Australia (O 4 r 1).

A writ must contain an indorsement. A general indorsement is not a pleading, rather, it is a general statement which puts the defendant on notice of the claim and foreshadows a statement of claim.

In New South Wales actions are commenced by a statement of claim, thus the functions of the originating process and pleadings are merged in the one document.

The Federal Court uses an application.

Affidavits

At common law the general rule is that witnesses are examined orally in open court or by deposition.

Affidavits are an equitable exemption to the general common law rule: McDonald v Page [1923] SASR 167.

In Victoria subject to an agreement between parties to the contrary, a trial of proceedings commenced by originating motion is by affidavit (rr 40.02(c), 45.02(1)), whereas trial of a proceeding commenced by writ is by oral testimony: r 40.02(b).

 

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