ByLawyers News and Updates

Civil rules – SA

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The Uniform Civil Rules 2020 have been amended with effect from 1 January 2024. These rules apply to all South Australian courts that deal with civil matters.

Amendments under the Uniform Civil (No 10) Amending Rules 2023 include the following:

Remote appearances

A  substituted r 15.4 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Setting aside judgement by consent

A new rule 142.13 provides that a default monetary judgment can be set aside and the proceedings discontinued by consent by the parties filing the new form 126A Application and Consent to Set Aside Default Judgment and Discontinuance, provided there is no cross-claim, third party claim, or interested party.

Publication updates

The commentaries and matter plans in the By Lawyers Magistrates Court Civil guides- Acting for the Applicant and Acting for the Respondent have been updated in line with the amended civil rules.

Criminal Rules – SA

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The Joint Criminal Rules 2022 have been amended with effect from 1 January 2024. These rules apply to all SA courts that deal with criminal matters.

Amendments under the Joint Criminal (No 3) Amending Rules 2023 include the following.

Continuity of representation after committal

A new rule 24.2(4A) provides that a law firm, and the responsible solicitor at that firm, that represented the defendant in committal proceedings which resulted in the defendant being committed to a higher court, is deemed to be representing them in the higher court. If a lawyer ceases to act after a committal proceeding, an application to the higher court will be required.

Remote appearances

A  substituted r 38.5 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Written submissions

A new rule 38.9(3) provides that any written submissions must include at the end of the document the name of counsel who settled them, or, if there is no counsel, the name of the solicitor responsible.

Sentencing material

A new Division 8—Sentencing material in Part 2 of Chapter 7 provides that any material filed for the purposes of sentencing, including reports, victim or community impact statements, or references, must be filed with a sentencing material form in the prescribed form, being Form 136 Sentencing Material.

Publication updates

The By Lawyers Criminal Magistrates Court guide has been updated in line with the amended criminal rules.

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!

Intervention orders – SA

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The By Lawyers Intervention Orders commentary has been reviewed and updated by our author to ensure all content is in line with current law and practice. As part of this regular review process, the following enhancements have been made:

  • Expanded coverage on applications to vary or revoke orders, and the typical procedure involved.
  • New content added regarding the Women’s Domestic Violence Court Assistance Service.
  • Updates to coverage of penalties for contravention of interim or final intervention orders.

Women’s Domestic Violence Court Assistance Service

This service provides pro-bono, specialised assistance to women who need to apply for a private intervention order, to vary a confirmed order, or to end a tenancy agreement due to domestic violence.

Applications to vary or revoke orders

A defendant may apply to have an intervention order varied or revoked only after 12 months have passed since the confirmation of the order, or such longer dated as fixed by the court.

The protected person may make an application to vary or revoke the order at any time. They should expect to be questioned by a magistrate at length on the reasons for the application. If the police are involved they are most likely to oppose such an application, particularly where there has been no apparent change in the parties’ circumstances since the order was made.

Breaches

As the commentary in the Intervention Orders commentary notes:

Breaches of an intervention order will be taken seriously. It does not matter if the protected person says that they consent to the breach, or even actively encourages it. Gaol terms and loss of the presumption in favour of bail is a real possibility for a defendant who breaches an intervention order. 

When acting for clients charged with a breach of an intervention order, subscribers will be assisted by the related By Lawyers guide Criminal – Magistrates Court (SA).

Discounts for guilty pleas – SA

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Provisions relating to discounts for guilty pleas have changed from 2 November, including for matters on foot as at that date.

The By Lawyers Magistrates Court – Criminal SA commentary has been amended accordingly. See particularly the section on Discounts on sentence for early pleas of guilty.

Section 39 of the Sentencing Act 2017 for summary and minor indictable offences treated summarily, and s 40 for other offences, provides that when passing sentence the court must take into account the fact that the offender pleaded guilty and when the offender pleaded guilty. The court can reduce the sentence it would have otherwise imposed up to certain percentages depending upon when the plea is entered.

Section 39(4) and s 40(5) Sentencing Act 2017 set out the considerations to which the court must have regard when determining an appropriate discount, including where the defendant is charged with or has pleaded guilty to more than one offence. Practitioners should note that some of those considerations now only apply to guilty pleas entered on or after 2 November 2020.

Specific percentage discounts for pleas of guilty are provided in the legislation for defendants pleading guilty to all types of offences in the Magistrates Court. To be eligible for the maximum reduction of the sentence that the court would otherwise have imposed, the defendant must enter the plea of guilty within four weeks of the first appearance.

In all cases, the considerations under s 39(4) and s 40(5) Sentencing Act 2017 include when the defendant first indicated an intention to plead guilty – it is therefore important, if seeking the maximum discount to indicate a likely plea of guilty to the court as soon as the instructions are to that effect, preferably on the first appearance, even if the actual plea cannot be entered until a later date due, for example, to negotiations over the facts.

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

New Publication – Criminal Magistrates Court SA

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We are very pleased to announce the release of another comprehensive step-by-step guide for South Australian practitioners, being Criminal Magistrates Court SA

This publication covers all aspects of criminal practice and procedure, for both summary and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both summary and indictable matters, obtaining pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options in the Magistrates Court.
  • Client mental health considerations, with a letter of instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights and time limits.

This guide is a valuable resource for all practitioners who conduct criminal matters in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

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