ByLawyers News and Updates

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.

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.

Local Court Rules – NSW

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A recent amendment to the Local Court Rules provides for transfers of civil proceedings from the Court’s General Division to the Court’s Small Claims Division.

Rule 2.3 of the Local Court Rules 2009 already provides for proceedings to be transferred from the Small Claims Division to the General Division if the Court considers that sufficiently complex, difficult, or important issues are involved. The same rule also allows such proceedings to be transferred back to the Small Claims Division again if the Court considers it appropriate to do so.

The new sub-rule, 2.3 (1A) allows the Court to transfer any proceedings from the General Division to the Small Claims Division if the Court is of the opinion that any complex, difficult, or important issues have been resolved, or that it is otherwise appropriate.

In either case, the transfer can be made on the application of a party or by the Court’s own motion.

A corresponding amendment to r 2.10 provides that an application by a party for transfer either way is to be made by a motion in accordance with Part 18 of the Uniform Civil Procedure Rules 2005.

The commentaries in the By Lawyers Local Court (NSW) – Acting for the Plaintiff and Local Court (NSW) – Acting for the Defendant publications have been updated accordingly.

Magistrates’ Court appearances – VIC

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All Magistrates’ Court appearances and counter services from 12 September 2022 will be subject to the arrangements set out in Practice Direction No 6 of 2022.

The practice direction applies to both criminal and civil matters, including intervention orders and specialist courts and programs.

COVID recovery arrangements made permanent

Essentially the temporary COVID recovery arrangements previously in place under Practice Direction No. 3 of 2022 have been made permanent, with that practice direction revoked.

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 they are required.

The new practice direction sets out detailed arrangements for all types of Magistrates’ Court appearances, including:

Criminal matters

  • 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;
  • hearings;

Civil matters

  • applications, directions hearings, pre-hearing conferences, early neutral evaluations and judicial resolution conferences are all to be conducted online, unless otherwise directed by the Court;
  • final hearings may be online or in person at the court’s direction.

For online appearances it is the practitioner’s responsibility to ensure that they and their client are able to join the online hearing with audio visual capability.

Magistrates’ Court publication updates

The following By Lawyers Victorian publications have been updated accordingly:

  • Magistrates’ Court – Criminal
  • Magistrates’ Court – Traffic offences
  • Intervention orders
  • Magistrates’ Court Civil – Acting for the plaintiff
  • Magistrates’ Court Civil – Acting for the Defendant
  • Dealing with COVID-19 legal issues

QCAT guide – QLD

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The By Lawyers QCAT guide has been extensively reviewed and enhanced.

The Queensland Civil and Administrative Tribunal matter plan and commentary headings have been reordered for improved sequencing and searchability. New commentary and cases have been added on various topics including:

Commentary on specific matter types in the QCAT guide includes helpful links to the relevant legislation such as:

These enhancements to the By Lawyers QCAT guide assist practitioners in advising clients and conducting matters in the tribunal’s civil disputes division.

Enforcement – QLD

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

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

The commentary has been substantially re-ordered and enhanced to cover all available enforcement options in all courts, from examination and attachment to various warrants and writs.

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

Other related By Lawyers guides include Insolvency and 101 Subpoena Answers.

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!

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