ByLawyers News and Updates

Enforcement – VIC

by

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

by

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.

Commonwealth offences – All states

by

Commentary on Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal Guides.

This new commentary and additional precedents will assist practitioners advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very helpful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters have been enhanced to include Commonwealth offences.

The new content can be found in the IF REQUIRED – COMMONWEALTH OFFENCES folder on the matter plan in every By Lawyers Criminal law guide.

 

Magistrates’ Court – Review

by

The By Lawyers Magistrates’ Court Civil (VIC) Publication has been reviewed and updated to ensure that the content is in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers Magistrates’ Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Calderbank offers.
  • Terms of settlement.
  • Civil Procedure Act obligations.
  • Pre-hearing conference.

New commentary on –

  • Electronic filing.
  • Small claims procedure.
  • Case management.
  • Use of audio-visual evidence.
  • Bringing and defending counterclaims.
  • Appeals to the Supreme Court.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers lawyers appearing for clients in civil matters in the Magistrates’ Court.

Access to criminal case information – WA

by

There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

Magistrates Court – Subpoenas – VIC

by

New forms for Magistrates Court Subpoenas

The By Lawyers Victorian Magistrates’ Court – Civil guide has been updated to reflect recent changes to the Magistrates Court rules affecting subpoenas in civil matters.

The Magistrates’ Court General Civil Procedure (Miscellaneous Amendments) Rules 2018, which amend the Magistrates’ Court General Civil Procedure Rules 2010, came into effect on 15 October 2018.

These amendments make important changes to subpoena forms and processes in the Magistrates Court’s civil jurisdiction. The intention of the amendments is to harmonise Victoria with other Australian jurisdictions with regard to subpoenas.

Importantly, the existing form for Magistrates Court subpoenas, form 42A Subpoena to attend to give evidence, has been updated.

There are also two new forms for Magistrates Court subpoenas, forms – 42B, Subpoena to produce and 42C, Subpoena both to attend to give evidence and to produce.

For more information on Subpoenas generally, see the By Lawyers Reference Manual 101 Subpoena Answers located in the Reference Materials folder at the top of the matter plans in all By Lawyers litigation and criminal guides.

QLD Magistrates Court – Domestic Violence – Interpreters

by

The By Lawyers Domestic Violence commentary has been updated to include a section on the Magistrates Court’s power to engage an accredited interpreter where required.

For private domestic and family violence proceedings, where the application indicates that either party requires an interpreter, the registrar will locate and retain an interpreter.

At the first mention, if the Court is satisfied that the interests of justice require an interpreter to be appointed to assist with the comprehension of the proceeding, the Court will order the appointment of an interpreter for further mentions.

In these circumstances, Queensland Courts will bear the cost of the interpreter’s engagement. See Practice Direction No. 6 of 2017.

Courts and tribunals – 1 July fee increases and legislation updates

by

1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

VIC – Magistrates’ Court Civil – New commentary on Substituted service

by

Some practical commentary on substituted service has been added to the By Lawyers Acting for the Plaintiff – Magistrates’ Court Guide.

To accompany this new commentary, we have also added the following precedents to the Acting for the Plaintiff matter plan:

  • Example content – Summons – Substituted Service;
  • Example content – Affidavit by solicitor in support of an application for substituted service.

Connect with us