Substituted Service Application

• The applicant, Acorn Investments Pty Ltd, seeks substituted service against the defendant.
• The application is made under section 50A of the District Court Act 1991 (SA) (DCA) and rule 42.9 of the Uniform Civil Rules 2020 (SA) (UCR).
• The applicant's claim is for the repayment of funds owed on a loan.
• On February 1, 2024, a loan agreement was made for $200,000, to be repaid by November 2, 2024.
• The respondent managed Geyer Pty Limited and guaranteed the loan's repayment.
• On November 5, the applicant sent a letter demanding payment, per the Affidavit of Grace Appealington Paragraph 3 and the Statement of Claim Part 3 Paragraph 5.
• The respondent refused to repay the balance as detailed in the Statement of Claim Part 3 Paragraph 5.
• Postal service by Ms. Grace Appealington on January 3, 2025, was returned unopened on January 15, marked "return to sender."
• James Vincent tried to serve the respondent at 1 Fern Road, Blair Athol SA 5084, but was informed Mr. Geyer no longer lived there and now lives at 9 Northgate Avenue, Northgate SA 5085.
• At 9 Northgate Avenue, Mr. Vincent was told by Kirsty Geyer, the respondent's mother, that Mr. Geyer moved to Coober Pedy to mine opals and is due back in a month.
• Kirsty Geyer could only provide the address of Care of Manager at the Big Winch Hotel, Coober Pedy.
• Grace Appealington's White Pages search found only one address for the respondent: 1 Fern Road, Blair Athol SA 5084.
• On February 12, 2025, Grace Appealington called Telstra Directory Assistance and was provided with a number that was answered by a woman who claimed Mr. Geyer no longer lives at that residence and is now in Northgate.
• To qualify as "not practicable," the applicant must have attempted service, even unsuccessfully, according to Ricegrowers Co-Op Ltd v ABC Containerline NV 1996 138 ALR 480.
• Substituted service should be effective in bringing knowledge of the process to the respondent, as seen in Porter v Freudenberg [1914-15] All ER Rep 918.
• Proposed service methods include serving the respondent's mother and posting information at the pub where the respondent receives mail.
• The applicant seeks to serve the respondent's mother at 9 Northgate Avenue, Northgate SA 5085 and the Manager of The Big Winch Hotel, 1 Hutchison Street, Coober Pedy SA 5723.
• For substituted service, it must be shown that serving via prescribed methods is not practicable and that reasonable attempts to serve the documents have been made.
• Electrolux Home Products Pty Ltd v Delap Impex Ltd (2013) 103 IPR 421 at 432–3 and Statewide Secured Investments Pty Ltd v Tarrant [2011] FCA 1067 found that service which is “not practicable” within the rule does not require an applicant to prove that it is impossible or futile to effect personal service.

Assessing Merits of a Case & Facts

• Oral contract.
• Offer: Email with prices for 45 security guards, 25 rubbish collectors, and rubbish dumping organization on August 3, 2024.
• Acceptance: Happy Mercury Ltd paid a 10% deposit on August 7, 2024.
• Consideration: Happy Mercury festivals promised to pay the sum on August 7, 2024.
• Amount owed: $146,891.00.

Proof Making Model

• Level 1: Legal source (common law or statute).
• Level 2: Cause of action (breach of contract, jurisdiction, and courts).
• District Court: Claims over $100,000, whether liquidated or unliquidated.
• Level 3: Component parts of the cause of action (elements).
• Level 4: Material facts (direct and indirect).
• Level 5: Evidence (oral, written, affidavit, etc.).
• Issues of fact are determined by evidence or admission.
• Issues of law are determined by authority and argument.
• Two tasks for the defense lawyer: respond to the plaintiff's facts and identify alternative defenses.

Identifying Parties

• Sole proprietor: May register and operate under a business name.
• Individual business owner: Establishing a company creates a separate legal entity (ASIC Registration)
• Business partners/Unincorporated association members: Can be named in court proceedings (UCR rr 23.1–23.5).
• Applicant: Party seeking final relief from the court per r 21.1(2).
• Respondent: Party against whom final relief is sought.

Damages

• compensation or indemnity for loss or injury suffered
• General damages: Do not have to be specifically claimed.
• Special damages: Specifically claimed and proven.
• Exemplary damages: Punishment/deterrence (in exceptional cases).
• Nominal damages awarded when a wrong has been committed but the plaintiff may not have suffered any loss.
• Section 236 of the Australian Consumer Act allows a claimant to recover loss or damage due to conduct contravening Chapter 2 or 3, and actions may commence within 6 years.

Jurisdictional Limits

• $0-$12,000: Minor civil claim – Magistrates Court.
• $12,001-$100,000: General civil claim – Magistrates Court.
• Greater than $100,000 District or Supreme Court.

Court Jurisdictions

• District Court: Civil, Criminal, Criminal Injuries, Administrative and Disciplinary.
• Magistrates Court: Civil (General, Minor, Consumer, Business), Criminal, Petty Sessions, Nunga Court.

Drafting Initial Letters of Advice & Facts

• Send a letter requesting damages with a 21-day response time.
• Ask for copies of job sheets for evidence, explain costs in the client's favor and not, ADR, time limits and warn of no guarantee.
• Written advice should include presenting possible options, discussing advantages/disadvantages, evaluating options for the client's situation, and providing recommendations.

Costs

• "Solicitor and own client costs": what a solicitor is entitled to recover for from their own client for legal services
• "Standard/Party costs”: party entitled to recover from another party in court
• If parties disagree, the court orders and determines costs using scales (UCR Sch 6 and Federal Court Rules 2011 Sch 3).
• Standard costs are determined by the court/tribunal or by agreement.
• Costs of the application are paid by the unsuccessful party
• Costs reserved: determined later
• Costs in the cause: paid by the party ordered to pay at the final hearing.
• Costs to follow the event: paid by the unsuccessful party at the interlocutory hearing.
• Costs in any event: the Party is entitled to costs of the application
• Costs thrown away in any event: The party is entitled to the costs it has incurred as a result of an action or omission by another party
• Costs to be assessed or agreed: party in whose favour the costs order is made will submit a bill to the paying party.
• costs of action: paid by the unsuccessful party on judgement
• Costs to be paid on a solicitor/client or indemnity basis: More generous party party costs

Costs & Legal Practitioners Act.

• Practitioners must disclose extensive information: LPA Sch 3.
• Provide written advice on estimated costs/disbursements: LPA Sch 3 cl 10(1)(a).
• Advise on legal costs calculation: LPA Sch 3 cl 10(1)(d).
• Disclose client rights to negotiate/itemized bill/changes: LPA Sch 3 cl 10(1)(c).
• Disclose estimates for legal costs/contributions before settlement: LPA Sch 3 cl 14(1).
• No contingency fees: LPA Sch 3 cl 27(1).
• Litigation funding (or third party funding) is contractuial arrangment between a funder agreeing to pay costs.

Defence

• Respondent files defence within 28 days.
• Rule 67.6(6): Allegations not addressed are considered denied.

Steps in an undefended matter:

• Instructions/costs agreement.
• Letter of demand/pre-action claim.
• Statutory demand if the debtor company owes >$2,000.
• Prepare/serve claim.
• Receive the affidavit of service
• Wait for the required time.
• Apply for judgment by default if no defence.
• Advise client on enforcement.
• Facts:
• Claim: Form 1
• Do not plead evidence
• Claim for moneys under an agreement

Drafting Pleadings & UCR Ch 7 Pt 7

• Badly drafted pleadings struck out, require particulars, or need amendment.
• Applicant pays wasted costs and proceedings may be delayed.
• Rules: State material facts only, facts relied upon, not evidence, and not law/statutory provision etc.
• Particulars of damages:
• Unliquidated damages for injury require a general statement: UCR r 67.5(2).
• Statement of claim drafting is important for initial impression, strength of case, and issues defined.

Included in the Statement of Claim

• Name of court
• Division
• Venue
• Title
• Solicitor name/email
• Signature
• Relief
• Rule 67.4: Provide documents referenced in pleadings on request.
• State relief/remedy clearly & use paragraphs intelligently and give ACN/registered office if applicant is a company: Corporations Act 2001 (Cth) s 153
• Statement of claim must set out each cause of action, basis of it and material facts.
• A party is bound by pleadings at trial and cannot go beyond pleadings: UCR rr 71.1, 71.2.

Drafting Orders Sought in Claims

• Orders sought requires an outline of the orders sought in separate numbered paragraphs
• The court may give judgment for relief and an applicant can make an app for pre-judgment interest where the interest rate may be 7% per annum.
• The costs awarded will depend on the outcome, offers and conduct .
• A defence must be filed within 28 days after service : UCR r 65.1(1).
• originating process that doesnt disclose a reasonable cause of action can be striked out UCR r 70.3(c)
• Parties are entitled to request facts of any matter
• a applicant must responsed to requests in 14 days UCR r 70.1.

CrossClaim

• claim against the applicant, reducing the respondent's liability.
• the applicant may enter a further pleading called a reply.
• parties must endeavour to solve disputes : UCR r 3.1.
• Under rule 73.7 each applicant and respondent must make discovery of discoverable documents in their prossession.
• Rule 73.18 allows parties to agree in writing that rules be modified.

Service & Corporations Act Section 109X(1)

• Documents can be served on a company by leaving/posting at the registered office, delivering a copy to the personal direction and leaving it with liquidator

Rule 42.1(1) of the UCR

• Documents are served on a partnership when served personally, left at the place of business or served on every person who was a partner.

Task 2.1 - Drafting court documents for an interlocutory application

• Interlocutory Application for substituted service and leaving a copy of the Claim documents and a copy of this order with his mother and by sending a photocopy of the Claim documents and a photocopy of this order via express post
• Telephone number didn't work and letter was returned
• If an order is drafted so badly that a further application to the court may be necessary for amendment.

Court Orders

• Command or direction
• May be addressed to only one of the parties
• Require action
• Enforceable

Judgements

Usually a choice Generally addressed to all the parties and usually final Require further proceedings

Judgements vs Orders

• judgments decide claims or rights of those involved
• orders exercise specific powers of its own
• UCR rr 103.2 and 182.2: An order or judgment of the court is perfected by being entered in the records of the court
• r 74.3 expert reports are to be served within 7 days
• for electronic trial, an electronic trial book is required to be prepared by the parties
• Applications for summary judgment can be made if the defence shows no basis
• Interrogatories- are a series of written questions, addressed by one party to the other
• Subpeona - attend court and give evidendece
• notice to produce documents for trial
• Hearsay is evidence not admissible
• evidence in interlocutory applications will be given by affidavit.

Hearsay

• Evidence in interlocutory applications will be given by affidavit
• Evidence: s 75
• Errors rectified by supplementary affidavit
• Initialled by witness and deponent
• Served on all other parties with court info.
• the Uniform evidence report summarises the rationale that hearsay is unreliable

Rules for Admissible Evidence

• Non-expert evidence is generally inadmissible Task 2.2
• UCR r 101.8 Court may order party to file summary argument
• UCR r 31.9 authorized witnesses can be attestation witnesses
• UCR RR 67.2(2) claim remedy
• UCR r 31.7 (12) Adducing affidavits
• Ricegrowers attempted and unsuccessful service
• Statewide Secured Investments Pty decide service is “not practicable” within the rule.
• Porter v Freudenberg Substitute serve where reasonable

The outline of submissions must:

(a) contain a concise statement of the issues on appeal; (b) contain an outline of the argument to be presented on each issue; (c) not exceed 10 pages (d)be easily legible

Ensure submissions are concise and succinct and clearly show that the evidence that has been put before the court enables your client to succeed with its case

• Form 77 for approved form and Form 12 for supporting affidavit s 75 of that Act provides that the hearsay rule does not apply in interlocutory proceedings

Duty to Disclose

a party making an ex parte application has a different obligation 19. 4 A legal practitioner seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which support an argument 20. 5 A legal practitioner must seek instructions for the waiver of legal professional privilege

Task 3.1 Settling Proceedings and Enforcing Judgment

For judgements for payment of a monetary sum, the main forms of enforcement are:

The following assets were valued at;

• Office premises = $1.3 Million
• Business bank account = $30,000
• Fixed term deposit = $25,000
• Motor vehicle = $65,000
• Balance of Money from ticket sales from ballina ticket sales = $130,000 Office equipment = $50,000.

Main forms of enforcement

• Warrant of Sale
• Charging Order
• Garnishee orders
• Payment Orders
• Bankruptcy ( individuals)
• Winding up ( companies)

Enforcement of Judgements Act 1991 (SA) (EJA)

• enforces power to judgment
• Judgement creditor enforces judgements in 15 years (Limitation of Actions Act 1936
• Serve notice debtor answering question with proceedings judgment : see Eja s3 , UCR Section 203. 3A.

Warrant of Sale

• Sheriff to seize sale of a debtor
• First step filling application Ucr 203, 10 (1) Form 163.
• Sheriff server notice of sale for judgement debtor to r 206.7
• Cannot be for judgments with execs debts costs some warrants for
• Auction
• Only certain amount of the property may be sold judgment
• Sheriff must be given the chance to sell personal property before real property
• Garnishee court can ask for money without wage and salary
• Pay 90% wages

Garnishee order

• Step: interlocurtory/ affidavit r 102.1 (1) from 77
• Submission of all Draft forms required at r 23.1 (1)
• Order hearing /Final : forms and rules given
• Judgement creditor app order property being changed/debt

Payment Orders

Judgement creditor ask payment with the debtors consent

• Winding up creditor and dept company
• UCR bankruptcy
• Debt to set up creditor up winding company