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 News & Updates site.
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
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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 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 ... ”
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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 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. ... ”
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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 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. ... ”
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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 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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“ 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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“ Termination When a retainer is terminated before completion a lawyer may claim costs for the work done to the date of termination on a quantum meruit basis if: ”
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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 cost 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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“ Other states For more information on similar procedures that exist in some other states, see: ”
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“ Queensland Courts online interest calculator Queensland Courts ”
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“ Magistrates Court Civil (QLD) District Court Civil (QLD) ”
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“ Overview This guide will assist practitioners to deal with common civil Supreme Court matters in a straightforwaerd, cost-effective way either by settling it early or, if necessary, by completing the necessary steps to prepare the matter for trial. Unless otherwise stated, all references within ... ”
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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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“ The client will attend in relation to a dispute in which they seek money or damages or some other remedy such as an injunction. The dispute may be over an estate, or a contract, a building or engineering project, or a damages claim in personal injury. The amount in dispute will be in excess of the ... ”
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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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“ In the Supreme Court there is always the need to keep a close watch on costs and this applies from the outset. See Costs below for further information. As a preliminary to any matter, consider whether to put on an early offer to settle. ”
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“ Practitioners have a duty to advise the client of the availability of alternative dispute resolution (ADR). Further, the court in some matters will actually require that some form of ADR - mediation, usually - has taken place before it will set down trial dates. ”
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“ Alternative dispute resolution processes are covered within Chapter 9 Part 4 UCPR and Part 6 Civil Proceedings Act. It may be necessary at some point to have a matter referred for mediation or case appraisal. As a general rule, a matter will be more suited to mediation if there is a factual issue ... ”
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“ Practitioners should remember that offers of compromise are relevant to the exercise of discretion of costs at the conclusion of any proceedings. There is a distinct advantage in making a formal offer of compromise under the rules when the court asks to hear the parties as to costs at the ... ”
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“ The rules provide a formal mechanism for settling all or part of a claim which can be utilised by either a plaintiff or a defendant. Different rules apply to an offer made by a plaintiff and an offer made by a defendant and different costs consequences flow: see rr 360 and 361. The ordinary rule in ... ”
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“ An offer pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333 can be made at any time. A ‘Calderbank offer’ may, in the exercise of the court’s discretion, be admissible on an argument in relation to the costs of the proceedings. A Calderbank offer is usually made in a letter ... ”
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“ When the parties settle after proceedings have been commenced enter into consent orders to dispose of the proceedings. Ensure the orders are precise as to what the settlement is, including time stipulations for payment of money, and contain the necessary orders in relation to the disposal of the ... ”
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“ See r 98 UCPR. Where a party is a person under a legal incapacity, whether by reason of age or otherwise, any settlement must be approved by the court. Approval is not automatic and the solicitor or barrister appearing for the party on the approval application should be prepared to place all the ... ”
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“ Undertakings are formal promises to the court. They are treated as binding as an order of the court. Effectively they bind the undertaker, the person making the promise, in a certain manner to do and not do certain things. If it is necessary to give an undertaking, the following is an example of ... ”
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“ File the correct originating process and the number of copies necessary to serve each defendant plus one copy to be retained on the file in the registry of the court with the correct filing fee. Once you have sealed copies, arrange for service on the defendants. See Service below. ”
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“ See rule 22. Under rule 9, a proceeding must be started by claim unless the rules require or permit the proceeding to be started by application. ”
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“ Under rule 10 a proceeding must be started by application if an Act or the rules require or permit a person to apply to a court for an order or another kind of relief and— (a)the Act or rules do not state the type of originating process to be used; or ”
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“ Note that if proceedings are incorrectly started - for example, you start a proceeding via a claim but it should be via an application - the court has the power to order that a proceeding can continue as if started correctly. See rules 13 and 14. The formal requirements for pleadings are ... ”
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“ Rule 159 requires details of interest applied for to be included in the pleadings, namely: ”
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“ The formal requirements for pleadings are contained in UCPR Chapter 6 Part 2 pleadings, and Part 3 particulars. The content and form of the claim is prescribed by r 22, namely, it must: ”
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“ See the rules at Chapter 3. Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding: see r 62. ”
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“ See Chapter 4 rr 100-133. Once sealed copies are received from the registry, arrange to have the application or claim served on the defendant preferably in person as required by r 105 and obtain an affidavit of service: see r 120. ”
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“ Rule 116 states that, if you are seeking substituted service because you cannot serve the defendants or cross-defendants, applications are made to the court. Any application for substituted service must be supported by an affidavit setting out all of the steps taken to effect service and a minute ... ”
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“ The defendant must file a notice of intention to defend within 28 days of service as per rule 137. Filing must occur in the registry from which the claim was issued, even if there is a dispute about the correct jurisdiction of the matter. See rule 141. If the 28-day deadline is missed then the ... ”
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“ See Chapter 6 Part 5 Division 2. A counterclaim may be made in relation to a cause of action arising after the issue of the claim. See rule 176. ”
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“ The third party procedure allows all issues to be tried in one set of proceedings to which all interested persons are parties. ”
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“ A reply should only be filed when there is a fact or issue asserted in the defence that the plaintiff can rebut, either as a matter of law or fact by pleading further facts. Replies should not be a restatement of the facts in the statement of claim. Where the plaintiff has filed an answer to a ... ”
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“ These rules are found in Chapter 10 Part 3. ”
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“ Rule 169 UCPR: ”
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“ All proceedings in the court are subject to case management by registrars and judges of the court. The court may give directions and a party may seek directions at any time: see r 366. ”
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“ The court issues practice directions relating to conduct of business in the court and setting out the varying case management procedures in the court’s lists. Practice directions have been published on a diverse range of matters and are not logically organised. Rather, they are organised in terms ... ”
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“ Reckoning of time The Uniform Civil Procedure Rules make various stipulations as to time. Time stipulations are important in relation to service of any process and any necessary applications for leave. As such, always be aware of them. ”
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“ See Chapter 8 Part 2 of the rules and s 9 Civil Proceedings Act. Injunctions are discretionary and made to preserve the property which is the subject of the proceedings, hence the term ‘interim preservation of property’. ”
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“ Any interlocutory or other application is an application during the case. They can be like mini trials conducted before the final hearing. They can be about a variety of issues including, but not limited to, defects in the pleadings, whether a person is a proper party, providing particulars, default ”
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“ See Chapter 9 and rules 283-290 in particular. ”
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“ Where the client has failed to file a defence within 28 days, the plaintiff may have entered default judgment. The court can exercise its discretion to set aside default judgment as per rule 290. ”
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“ Rule 284 states: (1)This rule applies if the plaintiff's claim against the defendant in default is for unliquidated damages, with or without another claim. ”
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“ Summary judgment is available to a plaintiff or a defendant in circumstances where the court is satisfied that the other party has no real prospect of successfully defending/prosecuting, as the case may be, a claim or a part of their claim and that there is no need of a trial of the claim or part ... ”
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“ See Chapter 9 Part 3 Uniform Civil Procedure Rules. A party who represents another person in a proceeding may discontinue or withdraw only with the court's leave. ”
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“ See rule 78, specifically: The court may order that 2 or more proceedings be consolidated if: ”
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“ If the pleading does not comply with the rules it may be embarrassing and liable to be struck out. When served with an originating process carefully consider the facts pleaded as to whether or not the elements of the cause of action are properly pleaded. This is a difficult area but you must take ... ”
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“ Under r 483 the court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding. It is appropriate to decide questions summarily where there are issues the determination of ... ”
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“ See Chapter 7 Part 1 Division 2. ”
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“ See Chapter 7 Part 1. Duty of disclosure is expressed in rule 211 : ”
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“ See the rules at Chapter 11 Part 7. Affidavits are evidence in writing usually ordered by the court to minimise the time spent at hearing in leading oral evidence or in particular circumstances such as expert evidence. ”
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“ Bulky affidavits with voluminous annexures are difficult for the parties and Bench to handle at trial, so the appropriate procedure is to make bulky documents exhibits. The old 50-page rule is a good guide as to when documents should be annexures or exhibits. If the entire affidavit is over 50 ... ”
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