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  • “ Contents Overview and Penalty units3 ”
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  • “ New South Wales A full commentary on the law and practice as it currently applies to acting for the defendant in traffic offence proceedings in the Local Court. ”
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      • “ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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        • “ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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        • “ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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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, ... ”
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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 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. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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          • “ In criminal cases s 225 Criminal Procedure Act 1986 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 something, ... ”
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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 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] NSWSC ... ”
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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 ... ”
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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 (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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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. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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        • “ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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        • “ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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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 you. 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 proceedings, will respond to a subpoena ... ”
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        • “ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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    • “ Local Court NSW Roads & Maritime NSW – Offences and Penalties ”
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    • “ Local Court Civil (NSW) Motor Vehicle Accident (NSW) ”
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  • “ The current regime of traffic law in NSW is undoubtedly complicated and requires careful analysis. The most recent substantive legislation was the Road Transport Act 2013 (NSW), (‘the Act’), which consolidated various Acts which previously made up the traffic law of New South Wales. In her second ... ”
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    • “ With drug and alcohol offences, an important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s general practitioner and any attending specialist (subject, of course, to ... ”
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    • “ The MERIT (Magistrates Early Referral Into Treatment) program is a pre-plea diversionary program for defendants with illicit drug problems. For full details as to eligibility and other matters concerning MERIT, see Local Court Practice Note Crim 1, issued on 24 April 2012. More information is ... ”
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    • “ The Traffic Offender Intervention Program is a Local Court based program aimed at traffic offenders pre-sentence. It can be accessed via your Local Court registry or the majority of Police Citizens Youth Clubs (PCYC) directly. The Criminal Procedure Regulation 2010 made under the Criminal ... ”
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    • “ Corrective Services NSW runs the Sober Driver Program for adult offenders who are convicted of a second drink driving offence within five years. The overall aim of the SDP is to reduce recidivism among drink drivers by assisting repeat offenders, through education, to separate drinking from ... ”
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    • “ Interlock orders are mandatory for offenders convicted of high range, repeat and other serious drink driving offences. The Court may grant exemption but only in limited circumstances. The orders consist of a minimum licence disqualification period and a period of participation in the program, ... ”
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    • “ If you have discovered an error with the charge, or a technical flaw with the police case, or you believe that there are otherwise good grounds, given your client’s particular circumstances and instructions, to request that the prosecution withdraw the charge, or you wish to negotiate the charge as ... ”
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    • “ The most common traffic matters for pleas of guilty are ‘drink driving’ offences, more properly ‘PCAs’ or prescribed concentration of alcohol offences. (Note that ‘DUI’, or driving under the influence, is a different offence - see Alcohol and drug offences above.). The Court of Criminal Appeal has ... ”
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    • “ If the matter is proceeding as a plea of guilty, then you should advise your client about obtaining character references. References must be specific to the offence. You should hand (or send) a number of copies of this information sheet to your client to give to their referees. For example, if ... ”
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    • “ The definitions in s 4 include a definition of a ‘major offence’, which is extremely important for the purposes of s 205, which sets out the disqualification periods for certain ‘major offences’. This definition lists the ‘major offences’ in the Road Transport Act 2013 and Crimes Act 1900 and ... ”
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    • “ Part 3.4 creates driver licensing offences. Section 54 contains the offences of disqualified, suspended and cancelled driving. Higher penalties apply for ‘second or subsequent offences’ Section 54(8) provides for the automatic disqualification periods and makes clear that these are mandatory ... ”
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    • “ Section 110 contains the offences of driving with novice, special, low, middle, and high range prescribed concentration of alcohol. Section 111 contains the offences of driving with the presence of certain drugs in the blood stream. ”
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    • “ Part 7.4, Division 3, ss 216-221 Road Transport Act 2013 set out the provisions for habitual traffic offender declarations. A person is declared by s 217 to be a habitual traffic offender (HTO) if a court convicts the person of a relevant offence and the person has, in the period of five years ... ”
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    • “ You should consider, prior to going to court, whether the magistrate is likely to require an assessment report. For repeat offenders, especially on mid and high range prescribed concentration of alcohol and/or driving while disqualified offences, it is usual for an assessment report to be ordered. ... ”
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    • “ It is important when conducting a plea before the Local Court to be concise. Most courts are very busy, especially on traffic list days, and it is therefore important not to waffle or waste time as it will only irritate the magistrate and an irritated magistrate isn’t necessarily going to be ... ”
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    • “ It is sometimes appropriate to do written submissions on sentence, particularly in the higher courts, but also, for particular cases, in the Local Court. For some types of traffic offences – for example, driving whilst disqualified/suspended - the chronology and factual circumstances that lead to ... ”
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    • “ The procedure in the conduct of a plea is normally as follows: You arrive at court and check the list to find out the name of the magistrate. ”
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    • “ Effect of disqualification Most major traffic offences have an automatic disqualification period that can be reduced by the magistrate to a minimum disqualification, which is the minimum that a magistrate can impose. It should be noted that the automatic disqualification is not the maximum that a ... ”
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    • “ Your role and your retainer do not end at the moment you sit down after making your submissions on sentence, nor when the bench passes sentence upon your client. You need to explain the outcome to your client. Most lay people can sit in court and listen to a judicial officer give a short ex ... ”
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    • “ Part 3.2 deals with the demerit points scheme. Although the types of offences which incur demerit points are not usually taken to court, your clients will often want to know the consequences of points being applied and/or want to appeal against the loss of licence which can result from demerit ... ”
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    • “ In the previous legislation appeals to the Local Court were spread out amongst the different Acts and schedules to same. They are now contained in the Act at Part 7.8, sections 266 to 270. Appellable decisions (of RMS and the police) are listed, plus others are set out in the rules. You or, more ... ”
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    • “ Advise your client about their automatic appeal rights, including the time limit (28 days for appeals to the District Court). Even if you think the outcome should not be appealed your client needs to know their options - and the costs - as it is their decision, not yours. Ensure that they know ... ”
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$1200 AUD + GST

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Train Your Staff Affordably

Reduce Your Practice Risks

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Phone or Tablet