Supreme Court Civil
This comprehensive and easy to follow publication provides commentary and precedents for the conduct of Supreme Court proceedings 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 Supreme Court.
Recent updates to this publication can be viewed on Obiter - our blog.
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
MATTER PLAN
-
-
“ Commentaries ”
-
-
-
-
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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 ... ”
-
“ 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, ... ”
-
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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? ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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] ... ”
-
“ 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; ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
“ 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 ... ”
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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, ... ”
-
“ 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 ... ”
-
“ Who is the right recipient Subpoenas need to be addressed to a person. ”
-
“ 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 ... ”
-
“ 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. ... ”
-
“ 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 ”
-
“ 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 ... ”
-
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner 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 ... ”
-
-
-
“ Know your limits – Legal Practitioners’ Liability Committee (LPLC) practice risk guide Supreme Court of Victoria ”
-
“ TAC Claims Personal Injury ”
-
“ Overview This guide will assist practitioners to deal with civil Supreme Court matters in a straight-forward, cost effective way and, if necessary, complete interlocutory steps up to trial. This publication will not deal with every specialist list or division of the court but will concentrate on ... ”
-
-
“ 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. ”
-
-
-
-
-
-
-
-
-
-
-
-
“ The Supreme Court has very wide jurisdiction which is not limited by any monetary limit. However, before commencing a claim in the Supreme Court, you must consider whether another court or tribunal is more appropriate or has exclusive jurisdiction. Examples of such claims include: ”
-
“ The Supreme Court of Victoria is the superior court of Victoria and was established by an Act of Parliament in 1852. It is currently governed by the Supreme Court Act 1986. The court is presided over by the Chief Justice and is divided into the Trial Division and the Court of Appeal. ”
-
“ Civil litigation in the Supreme Court is governed principally by: Supreme Court Act 1986 which sets out the Court’s jurisdiction; ”
-
-
-
-
-
-
-
“ Practitioners have a duty to advise the client of the availability of alternative dispute resolution. Indeed under s 22 of the Civil Procedure Act both the parties and their legal practitioners have an obligation to use reasonable endeavours to resolve the dispute. Alternative dispute resolution ... ”
-
-
“ Offers to settle can take two forms: An offer of compromise pursuant to Order 26; or ”
-
-
-
“ Rule 26.08.1 allows for Order 26 offers of compromise to be made before proceedings are commenced. The benefit of using this procedure is that if the matter cannot be settled and ultimately goes to trial, there will be a strong basis to seek an order that the other party pay costs predating the ... ”
-
“ Parties often do not contemplate mediation until proceedings are well under way. This is a mistake. If the dispute is fairly uncomplicated and negotiations by correspondence are not proving fruitful, it is worthwhile suggesting a mediation before issuing the claim. Once proceedings are commenced, ... ”
-
-
“ In some cases, it can be helpful and more cost effective to hold an informal settlement conference instead of a mediation. These usually consist of a meeting between lawyers to try to facilitate settlement, without the formal intervention of a mediator. They can help to resolve disputes at an early ... ”
-
-
“ Once a matter has settled, the parties should enter into terms of settlement formalising the terms of the settlement and providing for releases from future suit. This is the case regardless of whether proceedings were issued and whether the settlement was negotiated by correspondence or by ... ”
-
-
-
“ When the parties settle after proceedings have been commenced they will have to enter into consent orders to dispose of the proceedings. The court’s power to make consent orders is in rule 59.06. ”
-
-
-
-
“ Where the plaintiff is a person who by reason of injury, disease, senility or otherwise is incapable of managing her or his affairs, the person must have a litigation guardian appointed under r 15.03 and any compromise of the claim must be approved by the court: r 15.08. Approval is not automatic ... ”
-
-
-
-
-
-
-
“ The steps involved in bringing a claim follow a loose pattern: If necessary, issue a letter of demand. See Getting the matter underway above. ”
-
“ Any natural person or corporation may commence and carry on proceedings. A natural person does not require representation but may appear in person or be represented by a solicitor: r 8.03(1). ”
-
-
“ Any natural person or corporation may commence and carry on proceedings. A natural person does not require representation but may appear in person or be represented by a solicitor: r 8.03(1). ”
-
-
-
-
-
-
-
-
“ Brief counsel as early as possible, preferably before initiating the claim. Counsel’s advice on evidence before issuing will identify premature or weak claims before costs are wasted on them. Counsel should also be briefed to formulate the claim and draw the pleadings. Precise and accurate ... ”
-
-
“ The Civil Procedure Act 2010 imposes overarching obligations on litigants and legal practitioners in the conduct of litigation. It is imperative that all practitioners understand and abide by the overarching obligations. The consequences for breach can be dire. Overarching purpose ”
-
-
-
-
“ RedCrest is the Supreme Court electronic case management system, used for the electronic filing of all documents for the Common Law Division, the Costs Court and all Commercial Court matters. RedCrest allows legal practitioners to initiate cases, file documents and view case records online. To ... ”
-
“ It is essential that you observe proper protocol when communicating with the court. It is not acceptable for a solicitor to unilaterally communicate with an associate or the registry about substantial matters or try to get the court involved in interlocutory disputes. All practitioners need to be ... ”
-
“ All proceedings in the court are subject to case management by the Prothonotary, associate judges and judges of the court. In the Commercial Court, cases are placed into a list and are managed by the same judge throughout the proceeding. ”
-
“ After the close of pleadings, the court will list a first directions hearing before an associate judge. The court will make orders setting out a timetable for the proceeding including dates for exchange of discovered documents, evidence and mediation. The parties should liaise well before the ... ”
-
-
-
-
“ Urgent applications during a proceeding During the course of a proceeding, you may need to file an urgent application for certain interlocutory remedies such as a freezing order, search order or injunction. ”
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
“ File the correct originating process and the number of copies necessary to serve each defendant plus one copy to be retained on your file in the registry of the court with the correct filing fee. The Overarching Obligations Certificate, form 4A, and Proper Basis Certificate, form 4B, must be filed ... ”
-
-
-
-
-
-
“ A plaintiff claiming a debt can claim interest from the date the debt was due under s 58 of the Supreme Court Act 1986. Interest from the date of the writ can be claimed under s 60 of the Supreme Court Act. ”
-
-
-
-
-
-
“ A defendant is entitled in any proceeding commenced, or continued as if, by writ to bring a counterclaim against the plaintiff. A defendant must plead his counterclaim and defence in one document: r 10.02(3). The counterclaim does not have to arise out of the same facts and circumstances or have ... ”
-
-
“ Once you have received the defence, consider whether a reply is required. Under r 13.07 the reply should plead any fact or matter which: makes any claim or defence of the opposite party not maintainable; or ”
-
“ Under r 23.02, a pleading may be struck out wholly or in part if it: (a) does not disclose a cause of action or defence; ”
-
“ If the defendant has claims of contribution or indemnity related to the subject matter of the proceeding against a person who is not already a party, the defendant may join them as third parties to the proceeding using a Third Party Notice, form 11A: r 11.01. The third party procedure allows all ... ”
-
-
“ Under r 23.02, a pleading may be struck out wholly or in part if it: (a)does not disclose a cause of action or defence; ”
-
-
-
-
-
-
-
-
“ Under r 36.03 a party may, without leave, amend any pleading once at any time before the close of pleadings. After that leave of the court or consent of all other parties is required. A party who amends a pleading or other document must generally pay the costs of the amendment and the other ... ”
-
-
“ RedCrest is the Supreme Court electronic case management system, used for the electronic filing of all documents for the Common Law Division, the Costs Court and all Commercial Court matters. RedCrest allows legal practitioners to initiate cases, file documents and view case records online. To ... ”
-
“ Originating process may be served anywhere in Australia. Part 2 of Order 7 of the rules sets out the procedure for service in a foreign country. However, where it is to be served outside Victoria and in another state, service must be effected pursuant to the Service and Execution of Process Act 1992 ”
-
-
-
-
-
-
“ Originating process may not be served outside Australia except in the circumstances set out in r 7.02. In any other circumstances, the plaintiff needs the court’s leave to serve outside Australia. Litigation against a foreign defendant is costly and complex. The defendant is likely to resist the ... ”
-
“ Where the writ or originating motion it is to be served outside Victoria 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 ... ”
-
-
“ If you cannot serve the defendant - for example, because they are evading service - you can apply for substituted service to the judge in charge of the relevant list or to the Associate Judges’ Practice Court under r 6.10. The application is made by summons and must be supported by an affidavit ... ”
-
-
-
-
-
-
-
-
-
-
“ Default judgment is only available to the plaintiff where the proceeding was issued by writ: r 21.01. Default judgment is restricted in certain specialist lists, particularly in the Commercial Court where an order of a Commercial List judge must be obtained before a default judgment may be entered. ... ”
-
-
-
-
-
-
-
-
-
-
“ Summary judgment is available to a plaintiff under s 61 of the Civil Procedure Act 2010 on the ground that the defence, or part of the defence, has no real prospect of success. The procedure for the application is governed by Order 22 of the rules. Order 22 previously allowed for summary judgment ... ”
-
-
-
-
-
-
-
-
“ The court may make orders for the decision of any question separately from any other question: r 47.04. There are instances where, if a particular issue or question in the proceedings is tried separately, often as a preliminary issue, it will dispose of the entirety of the proceedings. In those ... ”
-
-
-
-
-
-
-
-
-
“ The court may order that proceedings be consolidated, that is, heard together so that evidence in one will be evidence in the other, when realistically the claims and parties could have been pleaded in the one statement of claim. Hence there are no significant differences in the parties. Rules 9.12 ... ”
-
-
-
-
-
-
-
-
“ Discontinuance Proceedings commenced by writ may be discontinued by a plaintiff under r 25.02, see relevantly below: ”
-
-
-
-
-
-
-
-
“ Urgent applications during a proceeding During the course of a proceeding, you may need to file an urgent application for certain interlocutory remedies such as a freezing order, search order or injunction. ”
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
“ Discovery is usually the first step after close of pleadings. It is a process of identifying, listing and producing documents for inspection by the parties to proceedings. Its purpose is to prevent surprises at trial where documents may be tendered of which you are unaware. Just as interrogatories ... ”
-
-
-
-
-
-
-
-
“ After discovery you will have to prepare the evidence in the case. This is often given by affidavit but in some common law actions evidence is given orally, for example, in defamation and personal injuries. Refer to the practice notes for the relevant list. Affidavits are evidence in writing ... ”
-
“ Affidavits must be filed if they are to be relied upon: r 43.09(1). See Order 28A for electronic filing in Red Crest. All affidavits must be served on the other parties to the proceedings at their address for service. Where a party is represented service is effected by service on the solicitor. ”
-
-
-
-
-
-
-
“ The court requires parties to issue subpoenas as early as possible before the trial date so that documents can be produced and inspected well before hearing and are available for the proper preparation of the case, including submission to experts. Subpoenas and notices to produce generally ”
-
-
-
-
-
-
-
-
-
-
-
-
-
“ Order 44 largely governs the use of expert witnesses in the Supreme Court. The restrictions are substantial, and boil down to a careful meting out of expert testimony by a select group of witnesses who are bound to the Expert Witness Code of Conduct in Form 44A. Medical reports in personal injury ... ”
-
-
-
-
-
-
-
-
-
-
“ Interrogatories are questions administered to another party that must be answered on affidavit: r 30.04. Neither the interrogatories nor the answer must be in a prescribed form. Interrogatories are served to elicit relevant admissions in the proceedings. They can only be served after close of ... ”
-
-
-
-
-
-
-
-
“ The procedure under Order 35 allows a party to admit facts by notice, r 35.02, or to serve a Notice to Admit, Form 35A requiring the other party to admit material facts or the authenticity of documents: r 35.03 and r 35.05. The procedure is designed to limit the issues in dispute at hearing and to ... ”
-
-
-
-
-
-
“ The regular directions hearings, and the constant feel of the court for the pulse of the proceeding, together with the early first directions hearing, mean that the court is generally in a position to detect completion of all interlocutory steps, especially after mediation, and to decide whether ... ”
-
“ The court will only grant adjournment applications where there are very good reasons. The parties must not ask the court to fix cases for trial unless they are ready for trial. Legal practitioners must ascertain the availability of the parties and their witnesses before taking a date for trial. An ... ”
-
“ The progressive refinement of the contents of the court book as the proceeding approaches trial should result in a final and agreed list of documents. The process for settling the court book will have been imposed by the judge at the outset, it usually being the responsibility of the plaintiff to ... ”
-
-
-
-
“ The case is not over and the file is not dead the very second that the judge leaves the bench after each side has made final submissions. The file, which has inevitably been torn apart in court in response to counsel’s urgent whispered demands for various documents, should be reconstructed and ... ”
-
-
-
“ Types of costs orders In the Supreme Court, costs ordinarily follow the event. This means that whichever party loses a particular application, or the ultimate trial, is ordered to pay the successful party’s costs. ”
-
“ In most cases, the parties will usually agree the amount of costs to be paid. If they do not agree, the amount of the costs has to be referred to the Costs Court who will assess how much is to be paid by reference to the Supreme Court Scale of Costs in Appendix A: Schedule 1 Supreme Court (General ... ”
-
-
