obiter | ByLawyers News and Updates

New personal injury guide – NSW

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By Lawyers are pleased to announce the publication of a new personal injury guide: Personal injury – Acting for the defendant.

With a separate matter plan, commentary and precedents, the new guide is now available along with Personal injury – Acting for the plaintiff.

The new Personal injury – Acting for the defendant guide concentrates on the defence of negligence claims to which the provisions of the Civil Liability Act 2002 apply, while also covering the common law to some extent, with regard to intentional torts. It assists practitioners acting for defendants and insurers, in both un-litigated and litigated personal injury claims.

The commentary discusses all the relevant considerations and necessary steps to investigate and progress claims to resolution. Commentary sections include:

  • Duty of care, including general principles of liability, specific legislative provisions, obvious and inherent risks, mental harm, causation and contributory negligence.
  • Damages, with coverage of economic and non-economic loss, attendant care services and also exemplary, punitive and aggravated damages.
  • Responding to the claim, with guidance and practical tips for dealing with un-litigated claims, gathering factual evidence and obtaining expert opinion.
  • Settling it early, with helpful commentary on preparing for and attending mediations.
  • Going to court, including the procedure for responding to claims in either the District Court or the Supreme Court.

The guide also contains many helpful precedents, including:

  • Letters to various sources gathering information
  • Medical authorities
  • Example content for a mediation position paper for the defendant
  • Offers of compromise
  • Example content for pleadings and other documents
  • Letters to clients finalising the matter after settlement or hearing.

Practitioners using the By Lawyers personal injury publications will also benefit from the By Lawyers litigation publications: District Court – Civil and Supreme Court – Civil – Common Law Division.

Defamation reforms – All states

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The By Lawyers Defamation and protecting reputation guide has been substantially reviewed and updated. This review is related to the current and imminent defamation reforms to the various laws around the country.

Practitioners may be aware of the long-heralded and substantial reforms to the uniform defamation law, following approval at COAG in 2020. As the uniform law is not Commonwealth legislation, but depends on the various state and territory Defamation Acts, implementing the reforms requires each state to pass amendments to its own Act.

So far only some states have passed their legislation, with some including NSW, VIC, QLD, SA and ACT to commence from 1 July 2021. The other states and territories are expected to follow soon. However, the result is that for the first time since 2005 – and for an indeterminate but hopefully brief period – Australia does not have uniform defamation laws. Rather, there are different laws in different states.

The By Lawyers Defamation and protecting reputation publication is being updated on an interim and graduated basis for these amendments. The publication will be finally updated when the defamation reforms become law in all states and territories.

The key aspects of the current amendments are:

  • a new ‘serious harm’ requirement;
  • new defences, including a new ‘public interest’ defence;
  • amendments to the way some damages for reputational harm are capped;
  • new limitation periods taking account of the fact content remains online for years.

There is also a second round of defamation reform currently under consideration. The main focus of these reforms is the liability of social media companies for defamation. Further updates to the By Lawyers Defamation and protecting reputation publication will occur when the proposed reforms are enacted.

As a precursor to these reforms, By Lawyers has been working with our author Peter Breen to revise and streamline our publication. Users will find that the matter plan now provides the usual, practical By Lawyers guidance to conducting a matter, with the relevant commentary, precedents and example content in sequential order. The commentary is adapted from Peter’s book Defamation and protecting reputation which is reproduced in its entirety in the ‘Reference materials’ folder on the matter plan in the By Lawyers guide.

The detail of the current reforms is explained in the publication.

Court books – All states

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Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

Personal Injury QLD

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The By Lawyers Personal Injury QLD publication has been reviewed, including the addition of a recent Supreme Court case relating to the extension of limitation periods.

Limitation periods are a critical consideration for practitioners advising and representing clients in personal injury claims. Strict limitation and notice periods apply. Extensions are possible under s 59 Personal Injuries Proceedings Act 2002, but good reasons for delay must be shown and the Court does not exercise its discretion to extend limitation periods lightly. Section 59 also applies to any extension of the limitation period that is granted under the Limitation of Actions Act 1974.

The issues relating to such an application were examined recently in Faram v Hensec Pty Limited [2020] QSC 327. The application to extend the limitation period in that case was refused where the applicant had failed to comply with the necessary pre-action procedures.

The By Lawyers Personal Injury QLD commentary deals in detail with limitation periods and pre-action procedures.

This review has also seen the commentary updated and revised for enhanced searchability.

Related By Lawyers guides for Queensland litigation include Motor Vehicle Accidents, Workers Compensation, District Court, Supreme Court and 101 Subpoena Answers.

New subpoena case – ACT

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A new subpoena case has been added to the By Lawyers reference manual 101 Subpoena Answers.

In Instyle Estate Agents Guhgahlin Pty Ltd v Hambrook [2020] ACTSC (26 October 2020) the court set aside a number of subpoenas in a civil matter, following Federal, NSW and previous ACT authorities.

The decision is particularly useful because it canvasses the plaintiffs’ four separate grounds for objection to the subpoenas, namely:

  • that they lacked a legitimate forensic purpose;
  • that they in effect sought discovery from non-parties, or alternatively, the terms of the subpoenas were impermissibly wide so as to constitute ‘fishing’;
  • that the terms of the schedules to each subpoena were so wide as to be oppressive; and
  • that the issuing party failed to pay both conduct money and money for the reasonable expenses of production.

McWilliam AsJ discussed and determined the court’s power and the applicable legal principles in respect of each of those grounds of objection.

This new subpoena case augments the many cases from all Australian jurisdictions to which links are provided in this helpful publication publication. It will particularly assist ACT practitioners in understanding and applying the law on subpoena objections.

101 Subpoena Answers is available in the Reference Materials folder on the matter plan in every By Lawyers litigation publication.

District Court litigation – NSW

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The By Lawyers District Court Litigation publication has been revised following the Court’s re-issue of Practice Note DC (Civil) No. 1. The revised practice note commenced on 31 August 2020.

The revision of this critical practice note also provided the opportunity for an author review of the District Court litigation publication, with resulting enhancement.

Both the Acting for the Defendant – District Court Civil (NSW) and Acting for the Plaintiff – District Court Civil (NSW) Guides have been reviewed. The matter plan is re-ordered and the procedural requirements of the practice note are further emphasised.

In addition, a new precedent Letter to client enclosing Practice Note DC (Civil) No. 1, has been added to each guide. The new precedent assists practitioners in complying with the court’s disclosure requirements. 

This review and the addition of the new precedent is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Motor vehicle accidents – NSW

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The statutory scheme for motor vehicle accidents in NSW varies depending upon whether the accident occurred before or after 1 December 2017. The Motor Accidents Compensation Act 1999 applies to accidents before that date. The Motor Accident Injuries Act 2017 applies to accidents that occurred after that date.

A new Motor Accidents Compensation Regulation 2020 commenced on 1 September 2020. It repeals and replaces the Motor Accidents Compensation Regulation 2015. These regulations are under the Motor Accidents Compensation Act 1999 – that is, they relate to claims for motor vehicle accidents which occurred BEFORE 1 December 2017.

By Lawyers Motor vehicle accidents publication has two separate guides to assist practitioners when acting for clients injured in motor accidents under both statutory schemes, before and after 1 December 2017.

The 2020 regulation

The explanatory memorandum for the new 2020 regulation notes:

The object of this Regulation is to remake, with some changes, the Motor Accidents Compensation Regulation 2015, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989. The Regulation provides for the following matters—

(a) the maximum costs for legal services provided in connection with claims relating to motor accidents covered by the compulsory third-party insurance scheme under the Motor Accidents Compensation Act 1999,

(b) the circumstances in which a legal practitioner and party may contract out of those maximum costs for legal services (to the extent they are payable on a practitioner and client basis),

(c) the maximum fees for medico-legal services and expert evidence provided in respect of claims,

(d) the assessment of claims by claims assessors,

(e) other matters relating to costs including what is to occur if a claimant fails to attend a medical assessment, the rate of certain travel expenses and providing for GST to be taken into account,  

(f) the maximum amounts payable by insurers for certain treatment provided to claimants,

(g) the classes of motor vehicles that are taken to be subject to an unregistered vehicle permit for the purposes of section 10A (Treatment of certain vehicles for purposes of third-party policy) of the Act,

(h) the time in which an insurer must pay an assessed amount of damages to a claimant,

(i) prescribing the Australian Prudential Regulation Authority as an authority to which protected information may be divulged for the purposes of section 217 (Secrecy of information obtained from or relating to insurers or proposed insurers and other persons) of the Act,

 (j) providing for information about settlement amounts, deductions and amounts paid to claimants to be disclosed to the State Insurance Regulatory Authority by legal practitioners,

 (k) creating a duty for legal practitioners not to give or receive fees or other consideration in respect of referrals in relation to claims,

 (l) savings and transitional matters.

Publication updates

The changes introduced by the 2020 version of the regulations are not substantial. The most significant is the provision, with some exceptions, for the automatic adjustment for inflation of the maximum costs for legal services and maximum fees for medico-legal services.

The By Lawyers Motor Vehicle Accidents – Accidents prior to 1 December 2017 Guide has been updated accordingly.

Personal injury – QLD

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A useful recent case has been added to the commentary in the By Lawyers Personal injury – QLD publication.

In Folwell v Mayer [2020] QSC 162 the court allowed the applicant an extension of time. The circumstances were that the applicant had issued a complying notice of claim under Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) within the limitation period, but had not otherwise completed the pre-litigation procedures required under the Act and was out of time to commence proceedings.

The applicant applied under s 59 of the Act for leave to commence proceedings even though the limitation period had expired.

The court reviewed the legislation and the cases on such applications, in some detail.

The factual circumstances were also examined closely, especially the chronology of the steps taken in relation to the matter by the applicant and her solicitors. These factual details proved to be determinative, as is usually the case in such applications.

The court found that the applicant herself had been less than pro-active in pursuing her claim, but further found that ‘… on the material before the court, the failure to conscientiously comply with the legislative requirements… rests predominantly with the applicant’s solicitor, rather than the applicant herself.’

The court also noted that ‘…the respondent does not identify any specific prejudice it will suffer if the application is granted.’

In the circumstances, notwithstanding the delay, the court determined that the applicant had an arguable claim and there could still be a fair trial. Accordingly the court ruled that ‘…the interests of justice favour exercising the discretion to grant the application to alter the limitation period under s 59’.

The case has been added to the commentary in Personal injury – QLD under Limitation periods.

Re-issued practice notes – NSW

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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

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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.

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