ByLawyers News and Updates

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.

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.

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.

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