Litigation Archives | Page 8 of 13

Motor Accident claims disputes – NSW

2 June 2020 by By Lawyers

The NSW State Insurance Regulatory Authority (SIRA) has launched its new digital portal for motor accident claims disputes. The new platform allows online lodgement, gives all parties to a dispute access to real-time status updates, and is designed to enhance communication and efficiency.

Motor accidents in NSW which occurred after 1 December 2017 are covered by the Motor Accidents Injuries Act 2017 (MAIA). Under the MAIA disputes scheme there is a SIRA Dispute Resolution Service (DRS) established by sections 7.2 and 7.3 to consider and determine a wide range of disputes as set out in Schedule 2 of the MAIA.

The types of disputes fall into three broad categories:

Merit Review;
Medical Assessment issues;
Claims Assessment matters;
Miscellaneous disputes.

Essentially, the DRS is the ‘one-stop shop’ for disputes under the scheme.

Application for resolution of motor accident claims disputes can now be lodged online via the SIRA DRS portal.

The portal can also be used to check the progress of applications, receive notification of the outcome of the dispute and to lodge any review if required.

To use the portal practitioners need to register an account with Service NSW and link the account with SIRA.

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

Re-issued practice notes – NSW

29 May 2020 by By Lawyers

The Supreme Court has re-issued practice notes in relation to procedure in the Common Law division for some of the court’s specialist lists. The additions and amendments to these Practice Notes mainly clarify or enhance aspects of case management by the court.

The Re-issued Practice Notes are as follows:

SC CL 7 – Professional Negligence List

SC CL 6 – Possession List

SC CL 4 – Defamation List

SC CL 3 – Administrative & Industrial Law List

There are also corresponding and additional minor amendments to SC CL 1 General regarding case management in the Common Law Division generally.

All these amended practice notes commenced from 25 May 2020, except PN CL 7 which will commence 1 June 2020.

The By Lawyers Supreme Court Common Law – Acting for the plaintiff and Acting for the Defendant guides contain numerous relevant links to these and other practice notes. The commentaries and links in these guides have been updated accordingly.

Subpoena objections – FED

27 May 2020 by By Lawyers

New cases on subpoena objections in the Federal jurisdiction have been added to the By Lawyers reference guide 101 Subpoena Answers.

In Kitchen v Director of Professional Services Review under s 83 of the Health Insurance Act 1973 (Cth) (No 3) [2020] FCA 634 the Federal Court affirmed McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 and also Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 to the effect that:

a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
documents for production must be identified with reasonable particularity;
the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings; there must be a legitimate forensic purpose for the production of documents;
a mere ‘fishing’ exercise can never justify the issue of subpoenas;
a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave; and
the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.

101 Subpoena Answers is available in all By Lawyers litigation guides. It can assist practitioners with issuing and responding to subpoenas in all jurisdictions including the various grounds for subpoena objections.

Uniform Civil Rules – SA

19 May 2020 by By Lawyers

The much heralded Uniform Civil Court Rules 2020 commenced in South Australia on 18 May 2020. CourtSA’s new electronic registry system commenced on the same day.

The new rules apply to proceedings commenced and steps taken in all SA civil proceedings on or after 18 May. They are to be cited at the Uniform Civil Rules 2020.

All By Lawyers SA litigation guides have been updated to reflect the new rules and procedures.

Significant amendments

The Uniform Civil Rules 2020 bring many changes.

Universal rules as to pleadings apply across all three courts and are found in Part 7 of the Rules, subject to exceptions for ‘minor civil actions’. There are specific rules for specific types of actions, for example, personal injury. There are some specific rules only applicable to the Magistrates Court.

Description of parties

One of the most significant changes is the terminology used to describe the parties. Under the Uniform Civil Rules 2020 a ‘plaintiff’ is now an ‘applicant’, a ‘defendant’ is now a ‘respondent’ and an ‘intervenor’ is now an ‘interested party’. These terms apply to all civil matters in all SA courts. By Lawyers commentary and precedents, including the titles of precedents, have been amended accordingly.

Pre-action requirements

Some of the major changes relate to pre-action requirements. The rules now specify:

how documents are to be served;
what is to be included in a pre-action claim, including a cost estimate if the matter were to proceed to trial;
a requirement for a pre-action response that includes a cost estimate;
a further response from the proposed applicant if a cross claim is indicated;
a pre-action third party notice and response if a third party is to be added;
a requirement for a pre-action negotiation meeting and subsequent report if the matter does not resolve.

There are serious procedural and costs implications for non-compliance with pre-action requirements.

Cross claims and set offs

There are also significant changes to the procedure for cross claims and set offs and claims against, or claims for contribution by, third parties. This includes time limits and requirements for filing and service of such claims.

Expert witnesses

The rules now set out in detail the obligations of parties regarding their letter requesting the expert report. They apply an expert code of conduct and address in detail the required content of an expert report.

Parties may request instead shorter, ‘summary reports’ from experts that address only the assumptions made and opinions held in summary form. These can attach only copies of documents that record instructions given to the expert, rather than comply fully with the disclosure obligations.

Family provision claims

The procedure for family provision claims previously set out under the Supreme Court rules has been streamlined. Notably the required information regarding other potential claimants no longer needs to be contained in a separate affidavit. See the By Lawyers commentaries in the Family Provision guides for more information on the changes.

Amendments to By Lawyers guides

The following By Lawyers SA publications have now been amended – and renamed, where applicable – in line with the Uniform Civil Rules 2020:

Magistrates Court Civil – Acting for the Applicant (formerly Magistrates Court Acting for the Plaintiff)
Magistrates Court Civil – Acting for the Respondent (formerly Magistrates Court – Acting for the Defendant)
Magistrates Court – Intervention Orders (located in Criminal Magistrates Court)
Family Provision Claims – Acting for the Applicant (Formerly Family Provision Claims Acting for the Plaintiff)
Family Provision Claims – Acting for the Respondent (Formerly Family Provision Claims Acting for the Estate)

Overriding purpose – Litigation – QLD

11 March 2020 by By Lawyers

New case added to Queensland litigation guides

All six of the By Lawyers Queensland litigation guides have been updated to provide a link to a recent case on the importance of the ‘Overriding purpose’ provision of the UCPR and the costs sanctions that might apply where it is breached.

The ‘Overriding purpose’

Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the overriding purpose of the rules is to provide for the expeditious resolution of the real issues in civil proceedings at a minimum of expense. That requires the courts to have the objective of avoiding undue delay, expense and technicality.

Under Rule 5 all parties to proceedings impliedly undertake to conduct their case in an expeditious way. Where they breach this undertaking, the court may dismiss the proceedings or apply costs sanctions. Francis v MSF Sugar Limited [2020] QSC 16 is a stark example of the court doing so.

Costs sanctions

In making indemnity costs orders in favour of the plaintiff in this case, the court noted:

[23] The defendant has conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false,
according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs, including costs
thrown away by yesterday’s adjournment and today’s application and short adjournment. It also likely delayed the determination of the plaintiff’s claim and prevented the matter
resolving on an agreed basis without the need for a trial.

Publication updates

The commentary in each of the By Lawyers Queensland litigation guides already highlights the importance of the Overriding purpose provisions. This useful new case illustrates the court’s approach to compliance with Rule 5 and the possible sanctions that will be applied. it has been added to each of the Acting for the Plaintiff and Acting for the Defendant guides in the By Lawyers Supreme Court, District Court and Magistrates Court publications.

Out of time claims – Workers Comp – NSW

27 February 2020 by By Lawyers

Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

‘To do’ list – Family provision claims – NSW

24 February 2020 by By Lawyers

New precedent ‘To do’ lists have been added to the By Lawyers Family Provision Claims – Acting for the plaintiff and Acting for the estate Guides for NSW.

Many subscribers would be familiar with By Lawyers helpful ‘To do’ lists, which serve as a checklist for progress through the matter. The ‘To do’ list ensures no critical steps are missed and allows practitioners to mark-off each step and make sure they know where the matter is up to.

The new ‘To do’ lists for Family Provision claims prompts for each of the critical steps at each stage of the matter, namely:

Getting the matter underway – including costs disclosure
Settling it early – initial offers of settlement
The claim – preparing and filing the summons and plaintiff’s affidavit OR notice of appearance and notice to eligible persons
The first directions hearing
Mediation
Next directions hearing
Preparation for hearing
Hearing
After hearing – including advice on appeal rights.

These new precedents will assist lawyers in Family Provision claims to manage their matters, whether acting for the claimant or the estate.

Family Provision – 101 Succession Answers (NSW)

24 February 2020 by By Lawyers

Two new cases on Family Provision claims have been added to the By Lawyers Reference manual 101 Succession Answers (NSW).

Affidavits and Disclosure

In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159] the court stated:

… the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.

The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:

It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.

This case has been added to the Affidavits and Disclosure sections under Family Provision claims in 101 Succession Answers (NSW).

Disabled adult child claimant

In Cowap v Cowap [2020] NSWCA 19 the Court of Appeal considered the competing claims on an estate of a disabled adult son, the applicant/respondent, and an elderly widow, the respondent/appellant. The son was in fact a child of the widow’s previous marriage but had been adopted by the deceased.

The court at first instance granted the son provision of $600,000. This meant the widow had to sell the former matrimonial home where she had long resided with the deceased and to which she had significant emotional attachment. The son had ‘severe and permanent disability, including cognitive impairment’ because of which there was strong evidence in support of his need for provision. The widow, to whom the entire estate had been left, also had a strong claim on the estate as it was a long marriage.

The sale of the property allowed the widow to purchase another smaller property and maintain her existing income. The judge at first instance, in granting provision to the son, decided that was an appropriate outcome given the 91-year-old widow would inevitably leave the property in due course in any event.

The Court of Appeal held that the first instance judge had made no error and dismissed the appeal.

Of further interest in this case is that the Court of Appeal refused to admit on the appeal any new evidence of valuation of the property. [35].

This case has been added to the Adult Children section under Family Provision claims in 101 Succession Answers (NSW).

Insolvency – Company liquidation – FED

18 February 2020 by By Lawyers

A full review of the By Lawyers Insolvency – Company Liquidation guide has been conducted by our highly experienced author, Michael Murray.

The review ensures that all content is in line with current law and practice.

Updates and enhancements include:

New commentary on the statutory demand process, including applications to set aside statutory demands; and
Updates to a number of precedents to improve the Insolvency – Company Liquidation matter plan.

Keep up to date with By Lawyers

These updates to our Insolvency – Company Liquidation guide are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

Insolvency – Bankruptcy of individuals – FED

13 February 2020 by By Lawyers

Author review

A full review of the By Lawyers Insolvency – Bankruptcy of Individuals guide has been conducted. The review ensures that all content is in line with current law and practice.

This review was conducted by our highly experienced author, Michael Murray.