ByLawyers News and Updates

Amendment of the PIC rules – NSW

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Recent amendment of the PIC rules impacts procedure for motor accident claims and workers compensation claims in the Personal Injury Commission.

The Personal Injury Commission Rules 2021 govern proceedings in both of the Commission’s divisions. The rules have received their first review since the PIC commenced operations. The review has resulted in a number of relatively minor tweaks and additions, and one substantial change.

The minor amendments include:

  • provision for consistency across the divisions as to the material that is lodged in applications;
  • provision for compliance with notices for production across divisions;
  • procedure for lodgment and admission of surveillance recordings;
  • provision for SIRA to intervene in Merit Review Panel proceedings;
  • clarification that an application to refer a medical dispute for assessment can be may be made at any time.

Amendment to time limits for appeals

The substantial amendment relates to time limits. An anomaly in the legislation that established the PIC meant that there has until now been no discretion for the Commission to extend the time for an application or appeal beyond the 28-day period provided in the Act. The legislation has now amended to alleviate that situation, and a new Rule 133A is included in this amendment of the PIC rules to enable the time for applications and appeals to be extended where necessary.

The criteria for extension of time under the new rule is that, for the applicant to lose the right to lodge would result in demonstrable and substantial injustice.

The commentaries in By Lawyers Motor Accident Claims – from 1 December 2017 and Workers Compensation publications have been amended accordingly.

Family provision cases – VIC

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Changes have been made to the way family provision cases are managed in the Supreme Court of Victoria.

The latest version of Practice Note SC CL 7 (Second revision) provides guidance on how proceedings in the Testators Family Maintenance List are managed by the court.

Family provision claims made under Part IV of the Administration and Probate Act 1958 are commenced in the Testator’s Family Maintenance List, in accordance with Order 16 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.

The main procedural changes for management of family provision cases from the previous version of the practice note are:

  • an increase in the threshold above which a provision statement, rather than an affidavit, is required to be filed – this will now apply to estates with a valuation of less than $1,00,000 rather than $750,000;
  • introduction of a requirement for the parties to attend at the first directions hearing unless they are otherwise advised by the court;
  • in some circumstances, where position statements or affidavits result in the judge hearing oral evidence, the costs of preparing and responding to position statements and affidavits may be ordered separately to the costs of the overall proceedings;
  • an increase in the threshold below which the court may refer the proceeding to mediation before a judge or a Specified Court Officer, from estates under $750,000 to estates under $1,000,000;
  • communication about proceedings in the list can now be made to the Testator’s Family Maintenance Coordinator via email: tfm@supcourt.vic.gov.au.

Links in the commentary in the By Lawyers Family Provision Claims (VIC) publication have been updated to the new version of the practice note.

Enforcement – NSW

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The By Lawyers Enforcement (NSW) publication has been extensively reviewed and expanded.

Part of the individual civil litigation publications for each court, the Enforcement guide deals with enforcing judgments and orders in civil matters in the Local Court, the District Court and the Supreme Court. It is a stand-alone publication, designed to assist practitioners who are advising and representing clients that seek to recover or resist a judgment debt or other order, whether or not the practitioner acted for the client in the substantive matter.

The commentaries have been substantially enhanced. New precedents provided on the matter plan include:

  • File cover sheet
  • Retainer instructions
  • Costs agreement and disclosure document
  • Initial letter to client
  • Letter of demand
  • To do list

The commentaries and precedents cover all manner of enforcement procedures, for all levels of courts, from examination and attachment to various warrants and writs.

Related By Lawyers guides include Insolvency and 101 Subpoena Answers.

Enforcement – VIC

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The By Lawyers Enforcement (VIC) publication has been extensively reviewed and expanded.

Part of the individual civil litigation publications, the Enforcement guides deal with enforcing judgments and orders in civil matters in the Magistrates’ Court, the County Court and the Supreme Court. They are now stand-alone publications, designed to assist practitioners who are advising and representing clients that seek to recover or resist a judgment debt or other order, whether or not the practitioner acted for the client in the substantive matter.

The commentaries have been substantially enhanced. New precedents provided on the matter plan include:

  • File cover sheet
  • Retainer instructions
  • Costs agreement and disclosure document
  • Initial letter to client
  • Letter of demand
  • To do list

The commentaries and precedents cover all manner of enforcement procedures, in all levels of courts, from examination and attachment to various warrants and writs.

Related By Lawyers guides include Insolvency and 101 Subpoena Answers.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed special arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

County Court lists – VIC

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New County Court lists commence in the Commercial Division from 1 March 2022.

The County Court (Chapter I Miscellaneous Amendments) Rules 2021 provide for the Expedited Cases List to become the Complex Cases List from that date. The amending rules provide that the Complex Cases List shall consist of any proceeding that is appropriate for more intensive case management. Transitional provisions in the amending rules provide that proceedings in the Expedited Cases List immediately before 1 March 2022 are, on that day, taken to be entered in the Complex Cases List.

There is also a newly established Arbitration List, for all matters under the Commercial Arbitration Act 2011.

The commentaries in the By Lawyers County Court – Act for the Plaintiff and County Court – Act for the Defendant publications have been updated to include these new County Court lists.

This is the final tranche of changes under these rules amendments. Other changes that have already commenced relate to the preparation and filing of affidavits and exhibits in the County Court, and mediation by the registrar. See our previous News & Updates posts in that regard.

Pre-action procedures – SA

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New precedents have been added to the Magistrates Court guides to assist practitioners to comply with the requirements for pre-action procedures in civil claims.

The options and requirements for pre-action procedures are set out clearly in Division 3 of Chapter 7 of the Uniform Civil Rules 2020.

The commentary in the By Lawyers SA Magistrates Court publications sets out these requirements and also deals with:

  • Alternatives to pre-action steps, involving the optional use of a Form P1 Final Notice, and Form P2 Enforceable Payment Agreement which sets
    out the money that the debtor owes and an agreed payment plan. These forms are available on the matter plans;
  • Pre-action steps for originating applications, including letters of demand and costs considerations;
  • Pre-action steps for minor civil claims, for which there is a simplified process.

The commentary also provides practical tips on taking instructions and giving advice about pre-action steps and letters of demand. This focuses on the overarching obligations that apply in all proceedings to parties and their representatives as set out in the rules. These are particularly pertinent to drafting letters of demand or pre-action claims.

New precedents

Two new precedents have been added to the Magistrates Court (SA) – Acting for the applicant matter plan:

  • Pre-action claim letter to respondent’s solicitor
  • Pre-action claim letter to respondent

Four new precedents have been added to the Magistrates Court (SA) – Acting for the respondent matter plan:

  • Pre-action response accepting offer
  • Pre-action third party notice
  • Letter serving pre-action response on other proposed respondents
  • Letter serving pre-action third party notice on applicant

These new precedents were prepared by our South Australian litigation author following a request from a subscriber. By Lawyers love to receive feedback from our users and often enhance our publications as a result. It is one of the ways we help lawyers enjoy practice more!

County Court rules – VIC

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A second tranche of amendments to the County Court rules commence on 31 January 2022. These relate to mediation.

A new rule 50.07.2 provides for the court to order that matters be referred to a registrar for mediation, at any stage of the proceedings. This new rule is in addition to the existing rule which allows the court to refer matters to mediation by a judicial registrar.

Other amendments to the County Court Civil Procedure Rules 2018 under the County Court (Chapter I Miscellaneous Amendments) Rules 2021 have already commenced. These concern the way affidavits and exhibits are prepared and filed. See Affidavits, Annexures and Exhibits on both the Acting for the plaintiff and Acting for the defendant matter plans in the By Lawyers County Court (VIC) publication for more information.

A third tranche of amendments to the rules will commence on 1 March 2022. These deal with the titles and nature of the lists in the Commercial Division. By Lawyers County Court publication will be further amended to reflect these changes in due course.

Affidavits and exhibits – Supreme Court – VIC

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The way affidavits and exhibits are prepared and filed in the Supreme Court’s Common Law Division and Commercial Court is changing.

From 1 October 2021 the Court will no longer accept affidavits for filing that include multiple exhibits, or which separate the affidavit and any exhibit. Affidavits must be in a single fully text-searchable PDF format file including any bundle exhibit.

Affidavits must be filed as a single, searchable PDF document, with all pages consecutively numbered. This includes the pages of any exhibit – see Exhibits to affidavits and Filing and service of affidavits in the By Lawyers Supreme Court (VIC) commentaries for more information.

There may only be one exhibit to an affidavit, except for confidential affidavits.

Where more than one document is exhibited to an affidavit, the documents must be combined into a single ‘bundle exhibit’, ordered in the sequence they are referred to in the affidavit. The exhibit must be part of the affidavit, in a single fully text-searchable PDF format file, with legible page numbers at the bottom right-hand corner of each page that correspond with the digital display page numbers of the PDF, that commence from the first page of the affidavit to the last page of the bundle exhibit.

See Affidavits and exhibits in the By Lawyers Supreme Court (VIC) publication for more information.

In a separate but related change to procedure, from 1 October 2021 all evidentiary documents filed in proceedings in the Common Law Division and Commercial Court may not be inspected by any non-party until the document has been read or relied upon in open court. This applies to affidavits, exhibits, witness statements, expert reports, written submissions, outlines of argument and chronologies.

See Practice Note SC Gen 20 Inspection of Civil Court Files by Non-Parties and Notice to the Profession (Changes to File Inspections and Affidavits) for more information.

Enforcement – VIC

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The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

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