Family Provision Claims

“ 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, ... ”

“ 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 you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”

“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”

“ 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 court where you are issuing the 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 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 ... ”

“ 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 ... ”

“ Nature of disclosure6 Timing of disclosure7 ”

“ 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. ... ”

“ 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: ”

“ 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 practitioner will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many ... ”

“ 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 ... ”

“ Practitioners 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 practitioner must take all reasonable steps to satisfy itself that the client has understood and consented to the ... ”

“ 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. ... ”

“ A practitioner may request money on account of fees be paid into a trust account before the work begins. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. Experience confirms that if a client is reluctant to pay such ... ”

“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month, or when the WIP reaches a specified amount, whichever is the earlier. ”

“ 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 ... ”

“ A practitioner cannot charge for the time spent in preparing an invoice. A practitioner cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”

“ 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 New South Wales and Victoria each bill or covering letter must be signed by a ... ”

“ – 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, registration is ... ”

“ Reducing fees can create goodwill but needs to be handled with care as some clients may take offence to the implication that they cannot afford to pay for the work they have retained. Similarly, it may create an expectation that any future costs will be discounted. It is also a hard-won reality ... ”

“ Credit terms are quite common and need to be clearly documented and administered. ”

“ 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, practitioners must advise the client of their rights at the time of issuing the invoice. ”

“ 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. ”

“ 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; ”

“ 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 ... ”

“ 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 ... ”

“ Sound financial management is absolutely critical to the success of a 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 ... ”

“ Methods of payment include: Credit card; ”

“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”

“ 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 ... ”

“ 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 ”

“ 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 ... ”