ByLawyers News and Updates

Investigation Notices – SA

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Investigation Notices have been introduced in South Australian courts as a new mechanism of enforcing debts.

From 18 September 2023, judgment creditors can serve Investigation Notices on judgment debtors prior to an Investigation Summons being issued.

Section 4 of the Enforcement of Judgments Act 1991 already allows the court to investigate a judgment debtor’s financial position with regard to their means of satisfying the debt.  This is usually the first step in enforcement proceedings. The court issues a summons which requires the judgment debtor to attend and produce documents at a hearing. The judgment creditor is entitled to cross-examine the judgment debtor on their evidence and documents. Failure to appear in response to a investigation summons can render a judgment debtor liable to be arrested.

The process of serving Investigation Notices under the new s 3A inserted into the Act by the Statutes Amendment (Civil Enforcement) Act 2023 is an informal preliminary step. It has the potential to save parties the time and cost involved in an adversarial hearing. The notice is issued by the judgment creditor and requires the judgment debtor to provide information including documents to evidence their ability to satisfy the judgment debt. This new preliminary step is not compulsory – the judgment creditor can elect to issue the notice, or proceed directly to an Investigation Summons and hearing. It is however expected that Investigation Notices will be widely utilised in an attempt to contain costs. Likewise, compliance by judgment debtors might be driven by the desire to avoid the costs of a hearing, which are added to the judgment debt under s 3 of the Act.

The amending Act also tweaks the existing provisions about garnishee orders to remove the requirement for the judgment debtor’s consent before wages or bank accounts can be garnisheed and to include term deposit accounts. Further amendments to 7 of the Act expand the powers of the Sheriff when enforcing judgments against land.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

Service and default judgment – VIC

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Amendments to the County Court rules alter the procedure for service and default judgment from 1 August 2023.

The County Court (Chapter I Service and Default Judgments Amendment) Rules 2023 amend the County Court Civil Procedure Rules 2018.

The new provisions deal with service of documents by email, and also introduce additional requirements for a plaintiff seeking to enter or apply for judgment against a defendant who fails to serve a defence within time.

Service

For some time, it has been permissible to effect ordinary service by email under r 6.07 unless the attachments to the email were more than 10 megabytes. The rule has now been amended to provide that attachments over 10 megabytes may be served by multiple emails, each with attachments not exceeding 10 megabytes.

Default judgment

For default judgment under r 21.01, where the defendant has failed to serve a defence within the required time, the amendments to the County Court rules require the plaintiff to first serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against them. Then, if the defendant does not serve a defence within seven days of receiving the notice, the plaintiff may enter or apply for judgment.

When applying for judgment, an affidavit is required proving the failure to serve the defence within time, service of the notice, and the failure to then serve a defence within seven days.

Publication updates

The By Lawyers County Court – Acting for the Plaintiff and County Court – Acting for the Defendant guides have been updated for the changes to service and default judgment respectively.

Offers to settle – QLD

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The Uniform Civil Procedure Rules 1999 (QLD) were amended from 23 June 2023 concerning the costs implications of rejected offers to settle made by both plaintiffs and defendants.

The Uniform Civil Procedure (Offers to Settle) Amendment Rule 2023 amends r 360 of the of the Uniform Civil Procedure Rules 1999 as to offers made by a plaintiff, and r 361 as to offers made by a defendant. It also introduces a new r 361A, which deals specifically with the implications of a plaintiff’s claim being dismissed after the plaintiff rejects a costs offer made by a defendant. There are also transitional provisions for offers already on foot before the amendments.

Offers to settle are relevant to the Court’s exercise of discretion concerning costs at the conclusion of any proceedings. The ordinary rule about costs is that they follow the event: r 681. Costs are awarded to the successful party, usually assessed on the standard basis, unless the rules or orders state otherwise: rr 702-704.

If an offer is made by one party and rejected by the other party, and the ultimate outcome of the case ends up being less favourable to the rejecting party than what was offered, the rules provide that the court can award indemnity costs against the rejecting party from the date of the offer. The amendments to the rules clarify when and how this applies.

The commentary on offers to settle has been amended, for both Acting for the plaintiff and Acting for the defendant, in all By Lawyers QLD Litigation guides:

 

Succession & Probate Lists – NSW

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The New South Wales Supreme Court has introduced combined Succession & Probate lists, for family provision claims and contested probate applications.

The new list replaces the Family Provisions Claims list previously managed by Justice Hallen, who is retiring. The court has never previously had a specialist list for contested probate matters.

Re-issued Practice Note SC EQ 07 – Succession & Probate Lists updates the procedures applicable to family provision and contested probate matters in the Court.

Key points include:

  • These types of matters will be managed and heard in the Succession & Probate List.
  • Directions and the hearing of interlocutory motions will be dealt with on Fridays, with Monday directions being phased out.
  • There will be two judges managing the list, initially Justices Meek and Lindsay.
  • There will be two judges available for the list on Fridays.
  • If possible, family provision applications whether combined with probate or not, will be dealt with by one judge and probate matters will be dealt with by the other judge.
  • Most interlocutory motions for matters in the list will require leave except urgent matters which can be listed by arrangement.
  • Subpoenas and Notices to produce for matters in the list will require leave.
  • Mediation for all matters in the list will be court annexed by default, unless the parties consent to private mediation or the Court otherwise orders.
  • Requirements for the content of the plaintiff’s affidavit in Family Provision matters updated.

The Court has indicated that the emphasis of the new list will be on strict case management and efficiency, in accordance with the overriding principal of just, quick and cheap disposal of the real issues in the proceedings under Section 56 Civil Procedure Act 2005 .

By Lawyers Family Provision Claims (NSW) and Supreme Court (NSW) – Equity Division guides have been updated accordingly, including the Retainer Instructions precedents which prompt practitioners to obtain the necessary instructions and documents required by the practice note.

Supreme Court – QLD

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From 1 May 2023 Practice Direction 9 of 2023 Caseflow Management – Civil Jurisdiction governs caseflow management in civil proceedings in the Supreme Court.

The new Practice Direction is to be read with Practice Direction 11 of 2023 Consent Orders of the Registrar.

Practice Direction 18 of 2018 Efficient Conduct of Civil Litigation also applies under the new practice direction.

These practice directions are all intended to facilitate compliance with the overriding obligations under r 5 of the Uniform Civil Procedure Rules 1999 that the parties and the court resolve the real issues in the proceedings in a procedurally fair, efficient, timely, and cost effective way.

The new practice direction is based on the Supreme Court having the expectation that cases will either be resolved or ready for trial within 180 days of the defence, or the last of multiple defences, being filed. If not, the Supreme Court registry will issue an Intervention Notice to which the plaintiff must respond within 28 days by filing one of the following documents:

  • Notice of Discontinuance; or
  • Notice that the matter has settled; or
  • Request for Trial Date.

If the matter is neither resolved nor ready for trial, the plaintiff must file proposed orders, either by consent or otherwise, and the matter will be listed in the Caseflow Management List where the registrar will make the proposed orders, or refer the matter to a caseflow management conference, or list it before a judge for review.

Failure to comply with the practice direction may result in sanctions including adverse costs orders and immediately listing the proceedings for trial.

When cases are settled, they are placed in the Caseflow Settlement List and remain there until a Notice of Discontinuance is filed, or the court makes an order disposing of the matter.

The commentaries in the By Lawyers Supreme Court Acting for the Plaintiff and Acting for the Defendant guides have been updated accordingly.

CTP claims costs – NSW

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Reporting of CTP claims costs by legal practitioners in NSW is now lodged via an online portal.

The State Insurance Regulatory Authority (SIRA) has launched a new Claims Costs Disclosure (CCD) portal to capture settlement costs data relating to Compulsory Third Party (CTP) damages claims made under the Motor Accident Injuries Act 2017 (MAIA).

Legal practitioners representing a CTP claimant must provide SIRA with a breakdown of costs related to the settlement of the claim, including:

  • the total amount for which the claim was resolved;
  • all deductions, including all legal costs and disbursements;
  • the total amount paid to the claimant.

CTP claims costs for damages claims settled on or after 1 March 2023 need to be lodged via the new portal. Retrospective disclosure prior to 1 March 2023 is not required. Registration for the portal has been available since 8 February 2023.

The By Lawyers Motor Vehicle Accident – From 1 December 2017 (NSW) guide has been updated accordingly.

Commercial List – QLD

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Supreme Court Practice Direction 1 of 2023 introduces new procedures for the Court’s Commercial List from 30 January 2023.

The Court has also issued supporting Notes that provide guidance about some practical aspects of the Commercial List, including parties, practitioners, directions, expert evidence, electronic filing and document management.

The key point of the new arrangements is that cases will be managed by a specific judge from start to finish. This includes interlocutory applications. Where the allocated judge is not available another Commercial List judge will step in.

The Practice Direction applies to existing and future commercial matters commenced in, or transferred to, the Brisbane registry. Commercial matter filed in another region will be subject to case management as appropriate in that region.

Matters can be put on the list by a party, or assigned by the court. The criteria is that the real issues involved in the matter are of a general commercial character, or arise out of trade and commerce, including e-commerce. The Practice Direction provides a non-exhaustive list of such issues:

  • the construction of a business contract, smart contract or other commercial
    instrument;
  •  insurance and reinsurance;
  • banking and financial services, including dealings in cryptocurrency;
  • the provision and enforcement of securities of any kind;
  • the conduct of business and commercial agents;
  • rights in, to, or concerning technology, including blockchain technology;
  • intellectual property;
  • partnership and joint venture relationships;
  • the export or import of goods or services;
  • the provision of goods or services by land, sea, air, cable, pipeline or through use
    of the internet for commercial purposes;
  • arbitral proceedings under the Commercial Arbitration Act 2013 (Qld);
  • the exploitation of natural resources;
  • conduct in and/or the operation of financial markets and exchanges;
  • data ownership, storage and security;
  • an appeal or judicial review relating to a tax, levy or royalty; and
  • directors’ duties, shareholder rights, capital raising, takeovers, compulsory
    acquisitions, buy-outs and windings up under part 5.4A of the Corporations Act
    2001 (Cth).

The By Lawyers Supreme Court (QLD) publications have been updated accordingly.

District Court – NSW

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The jurisdictional limit of the District Court increased on 16 December 2022. The limit as defined in s 4 of the District Court Act 1970 went from $750,000 to $1,250,000.

The jurisdictional limit may still be exceeded if the parties consent as provided under s 51. There remains no jurisdictional limit for motor accident claims.

Additionally, the monetary limit for the court to deal with and order interlocutory injunctions has increased from $20,000 to $100,000.

The District Court also has limited jurisdiction to hear:

Unchanged is the jurisdiction of the District Court in proceedings for possession of land. The court can only deal with such proceedings where the land value does not exceed $20,000: s 133.

There are no corresponding changes to the jurisdictional limit of the Local Court. The jurisdiction of the Supreme Court is unlimited.

By Lawyers District Court Civil (NSW) guides have been updated accordingly.

Motor accident claims – NSW

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From 28 November 2022 there are some important changes to the legislation for motor accident claims in NSW. Further amendments are scheduled for later commencement.

The Motor Accident Injuries Amendment Act 2022 amends the Motor Accident Injuries Act 2017, which applies to all motor vehicle claims in NSW where the accident occurred on after 1 December 2017.

The amending Act has been informed by a statutory review of the 2017 Act and the motor accident claims scheme it established. The review assessed whether the policy objectives of the Act remain valid and whether the terms of the Act, the Motor Accidents Injuries
Regulation 2017 and the Motor Accidents Guidelines are appropriate for those objectives.

Provisions of the amending Act commencing now include:

  • a new regulation-making power that can allow payment of statutory benefits in the period between the accident and when the claim is made even if the claim is made outside the required 28 days;
  • removing the requirement for internal review by the insurer before a dispute can be referred to the Personal Injury Commission for medical assessment for disputes about the degree of permanent impairment caused as a result of the injuries sustained in a motor vehicle accident;
  • removal of the 20 month waiting period to bring a claim for damages for certain types of claim;
  • removal of the three year time limit on referring damages claims to the Personal Injury Commission without a full and satisfactory explanation of the delay;
  • removal of the bar to claimants with less than 10% whole person impairment settling a claim within two years of the accident; and
  • clarifying that the liability of the nominal defendant and the legislative provisions for claiming against the nominal defendant apply to statutory benefits claims as well as damages claims.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Other amendments in the Act remain pending, scheduled for commencement on 23 April 2024 unless proclaimed earlier. These include provisions for:

  • further regular statutory reviews of the 2017 Act;
  • changing the defined term minor injury to threshold injury;
  • extending weekly payments and statutory benefits for treatment and care expenses from 26 to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

By Lawyers are monitoring the progress of these additional amendments and the guide will be further updated when they commence.

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