Local Court Civil (NSW), Magistrates' Court Civil (VIC), Magistrates Court Civil (QLD)
This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!
Recent updates can be viewed on Obiter - our blog.
Local Court Civil (NSW)
This comprehensive and easy to follow publication provides commentary and precedents for the conduct of Local Court proceedings in the General and Small Claims divisions, when acting for either a plaintiff or defendant and includes a supplementary enforcement guide, demonstrating the use of precedents guide and 101 subpoena answers reference manual.
From letters of demand and offers of compromise to final hearing, appeals and enforcement, this publication provides focused and practical guidance on procedure and documents and is a must-have for all lawyers acting for clients in the Local Court.
Popular precedents provided with this guide include:
- Library of letters of demand and example response to letter of demand
- Example offer of compromise and Calderbank offer
- Library of example consent orders
- Example content for seeking injunctive relief
- Example terms of settlement
- Example deeds of release
- Library of events for initiating application
- Example defence
- Example content for substituted service, and amending initiating application
- Example content for interlocutory steps including cross claim, defence to cross claim, summary judgment, summary dismissal, consolidation, security for costs, default judgment, and notice of discontinuance – content for both application and affidavits in support
- Example interrogatories, and content for setting aside subpoenas and notices to produce
- Example letter instructing expert witness and enclosing Expert Witness Code of Conduct
Magistrates' Court Civil (VIC)
This comprehensive and easy to follow publication provides commentary and precedents for the conduct of Magistrates’ Court proceedings when acting for either a plaintiff or defendant and includes a supplementary enforcement guide, demonstrating the use of precedents guide, intervention orders guide and 101 subpoena answers reference manual.
From letters of demand and offers of compromise to final hearing, appeals and enforcement, this publication provides focused and practical guidance on procedure and documents and is a must-have for all lawyers acting for clients in the Magistrates’ Court.
Popular precedents provided with this guide include:
- Library of letters of demand and example response to letter of demand
- Example offer of compromise and Calderbank offer
- Library of example consent orders
- Example content for seeking injunctive relief
- Example terms of settlement
- Example deeds of release
- Library of events for initiating application
- Example defence
- Example content for substituted service, and amending initiating application
- Example content for interlocutory steps including cross claim, defence to cross claim, summary judgment, summary dismissal, consolidation, security for costs, default judgment, and notice of discontinuance – content for both application and affidavits in support
- Example interrogatories, and content for setting aside subpoenas and notices to produce
- Example letter instructing expert witness and enclosing Expert Witness Code of Conduct
Magistrates Court Civil (QLD)
This comprehensive and easy to follow publication provides commentary and precedents for the conduct of Magistrates Court proceedings when acting for either a plaintiff or defendant and includes a supplementary enforcement guide, demonstrating the use of precedents guide, domestic violence orders guide and 101 subpoena answers reference manual.
From letters of demand and offers of compromise to final hearing, appeals and enforcement, this publication provides focused and practical guidance on procedure and documents and is a must-have for all lawyers acting for clients in the Magistrates Court.
Popular precedents provided with this guide include:
- Library of letters of demand and example response to letter of demand
- Example offer of compromise and Calderbank offer
- Library of example consent orders
- Example content for seeking injunctive relief
- Example terms of settlement
- Example deeds of release
- Library of events for initiating application
- Example defence
- Example content for substituted service, and amending initiating application
- Example content for interlocutory steps including cross claim, defence to cross claim, summary judgment, summary dismissal, consolidation, security for costs, default judgment, and notice of discontinuance – content for both application and affidavits in support
- Example interrogatories, and content for setting aside subpoenas and notices to produce
- Example letter instructing expert witness and enclosing Expert Witness Code of Conduct
Guides in this publication
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ACTING FOR THE PLAINTIFF - LOCAL COURT (NSW)
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ACTING FOR THE DEFENDANT - LOCAL COURT (NSW)
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ENFORCEMENT (NSW)
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APPREHENDED VIOLENCE ORDER (NSW)
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101 Subpoena Answers
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Demonstrating the use of precedents
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ACTING FOR THE PLAINTIFF - MAGISTRATES' COURT CLAIMS UNDER $100,000 (VIC)
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ACTING FOR THE DEFENDANT - MAGISTRATES' COURT CLAIMS UNDER $100,000 (VIC)
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ENFORCEMENT (VIC)
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INTERVENTION ORDERS (VIC)
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ACTING FOR THE PLAINTIFF - MAGISTRATES COURT (QLD)
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ACTING FOR THE DEFENDANT - MAGISTRATES COURT (QLD)
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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL (QLD)
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DOMESTIC VIOLENCE (QLD)
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ENFORCEMENT (QLD)
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PRACTICE MANAGEMENT
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“ Commentaries ”
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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, is ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading NSW civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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“ A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the specific court when issuing a subpoena: see the links to court websites in Power to issue a subpoena above or Further information below. Generally, subpoenas require personal service, unless they are directed to police or other public officers. ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to the issuing party or their lawyer. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ LawCover – Schedule of limitation periods in civil matters in NSW Court Mentions List – www.mentions.com.au – A list of lawyers currently available for mentions in all NSW courts ”
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“ District Court Civil (NSW) Neighbourhood Disputes (NSW) ”
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“ In the Local Court, civil cases include disputes about money or property, such as debt recovery and small contract disputes. The NSW Local Court has two divisions to determine civil cases: ”
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“ Take detailed instructions, using the Local Court Retainer Instructions, so you can assess the situation. Because going to court can involve the client in significant costs, the first consideration is whether the problem can be solved in another way - perhaps by negotiation or mediation, or issuing ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Because going to court can involve the client in significant costs, the first consideration is whether the problem can be solved in another way – perhaps by negotiation or mediation, or issuing a statutory demand to a corporate debtor, for example. The best outcome for the client will rarely ... ”
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“ In general After you take instructions and before commencing proceedings ensure the Local Court has jurisdiction to hear the claim. ”
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“ In conducting civil litigation in the Local Court it is critical to be familiar with the requirements of Local Court Practice Note Civ 1 (‘the Practice Note’). It covers all aspects of procedure. The Standard Directions which will apply to every case are annexed to the Practice Note. ”
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“ The regime for dealing with small claims in the Local Court is designed with the idea that parties will be unrepresented. For that reason, lawyers accepting instructions to conduct matters in the Small Claims Division must be fully aware of the strict procedural and costs restrictions and also ... ”
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“ The Local Court has jurisdiction to hear various claims brought pursuant to a number of Acts and statutory instruments and to make orders under them. This can be a confusing area, as the application procedure is used for what appear to be statutory applications that do not have the flavour of the ... ”
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“ As above, there are many practical reasons to try and resolve court proceedings. In any event, many matters settle after commencement of proceedings, and the court does encourage mediation. The precedents also contain terms of settlement and consent orders that can be filed to bring proceedings to ... ”
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“ Letters of demand are almost always issued prior to commencing proceedings. The exception might be where a potential plaintiff believes there is urgency for some reason, such as the imminent expiry of a limitation period, and proceedings therefore cannot be delayed. Even then, a letter of demand ... ”
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“ Offers of compromise – Calderbank offers v rule offers A client needs to be made aware, even before proceedings are commenced that they should consider making such offers at any stage of the proceedings, and even repeated offers. In addition, the client may receive offers from the other side which ... ”
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“ If the debtor agrees to pay the claimed amount in full before judgment is entered, a Notice of Discontinuance should be prepared by the debtor and signed by all parties to the proceedings before payment is made. Once payment is made, the debtor will lose leverage, and the creditor may simply refuse ... ”
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“ Before commencing proceedings ensure the client receives the following, in writing: costs disclosure, including disbursements for court fees, service, counsel and experts; ”
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“ The usual steps for a plaintiff in the General Division are: consider Practice Note Civ 1 – there will be a first call-over within six weeks of a defence being filed and standard directions to be complied with – be ready; ”
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“ Part I of Local Court Practice Note Civ 1 provides for protocols and procedure relating to online court (‘OLC’). OLC is is a virtual courtroom, authorised by Schedule 1 to the Electronic Transaction (ECM Courts) Order 2005. It may be used for interlocutory or procedural matters that can be dealt ... ”
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“ Unless the court orders otherwise, the venue where the proceedings will be heard is that specified by the plaintiff in the originating process. However, the court has the power under r 8.2 to direct the transfer of the proceedings to another venue. See paragraph 10 of the Practice Note Civ 1. The ... ”
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“ Small Claims Division Concerning transfers of a matter in the Small Claims Division to the General Division of the Local Court, Local Court Rules r 2.3 LCR sets out the circumstances where such a transfer may be appropriate. Also paragraph 9 of Practice Note Civ 1 deals with consolidation with ... ”
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“ Identity and capacity of parties Any natural person may commence and carry on proceedings: r 7.1(1) UCPR. A natural person does not require representation but may be represented by a solicitor: r 7.24. ”
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“ If a party dies after the verdict or finding on the questions of fact, the court may give judgment, and judgment may be entered, despite the death. However, subrule (1) does not limit the court’s power to make orders for the joinder, removal, or re-arrangement of parties under Part 6: r 29.12(2). ”
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“ of causes of action and parties Rule 6.19 provides that two or more persons may be joined as plaintiffs or defendants in any originating process if: ”
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“ Reckoning of time The Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 make various stipulations as to time. ”
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“ Commence the proceedings by filing a Statement of Claim, ‘the originating process’, and at least two copies in the registry of the Local Court: r 6.2(1). ”
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“ There is little formal assistance in the UCPR as to how to draft a Statement of Claim. The most important rule is r 14.7, which states: ”
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“ When a plaintiff or cross-claimant issues a statement of claim and is successful they are entitled to claim interest to the date of judgment calculated in accordance with r 36.7: s 100 Civil Procedure Act 2005. The prescribed rate at which interest is payable under s 100 of the Civil Procedure Act ... ”
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“ The defendant is required to file a defence within 28 days of being served. The defence should clearly establish, by denial or non-admission, what the issues are. Rule 14.26 provides that an allegation of fact made in a pleading is taken to be admitted by the opposite party unless the allegation is ... ”
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“ In the Local Court a plaintiff requires leave to file a reply to a defence in the General Division: r 14.4(2). Any reply must be filed within 14 days after the service of the defence: r 14.4(3). ”
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“ The general requirement for service of originating process is that it must be served personally, although specifically for the Local Court there are provisions in r 10.20(2)(b) that: any originating process in the Local Court must be served in one of the following ways: ”
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“ Where process is to be served outside NSW and in another state, service must be effected pursuant to the Service and Execution of Process Act 1992 (Cth). Compliance with the provisions of the Service and Execution of Process Act 1992 is essential, particularly s 16 which requires attachment of the ... ”
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“ Rule 10.14 of the UCPR applies. If substituted service is necessary because the defendant cannot be served, applications are made in the registry to the duty registrar. Any application for substituted service must be supported by affidavits setting out the steps taken to effect service and a minute ... ”
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“ Small Claims Division If a cross claim exceeds $20,000, it is to be transferred to the General Division: r 2.2 Local Court Rules. Regarding costs for transferred matters, refer to Part G Practice Note Civ 1. ”
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“ File a defence to any cross-claim with 28 days of service and serve it on the defendant or their solicitors. However, if you need further and better particulars of the cross-claim make the request promptly. ”
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“ At this early stage of the proceedings the most easily accessible provision to enable amendment of the statement of claim is r 19.1, which generally permits one amendment to a statement of claim within 28 days after filing. This applies even if a defence has been filed. Amendment at this stage ... ”
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“ Small Claims Division Unless the rules otherwise provide or the court grants leave, interlocutory applications in small claims proceedings are to be made orally at the Pre-trial Review: r 2.10 Local Court Rules and paragraph 22 Practice Note Civ 1. ”
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“ Where applicable, clients should be made aware that the defendant may apply for the plaintiff to provide security for costs. Security for costs is available under r 42.21 and also under s 1335 of the Corporations Act. ”
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“ In liquidated and unliquidated claims a plaintiff can, where the statement of claim is validly served and no defence is entered within 28 days of service, and after the 28-day period has expired, enter default judgment: r 16.3(1). In a liquidated claim judgment is entered for the amount of the debt ... ”
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“ Summary judgment is available to a plaintiff in circumstances where the defence filed is not sustainable. The test is that the claim must be 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless', 'so manifestly faulty that it does not admit of argument': General Steel ... ”
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“ Whilst r 13.4 seems to be more relevant to a situation where a defendant seeks to have the plaintiff’s proceedings dismissed, it may have some application as a basis for a plaintiff’s attack on a defence. ”
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