Exam Civil Notes PDF

TASK 1 CIVIL NOTES TASK 1.1 – ASSESSING THE MERITS OF A CASE – PROOFMAKING MODEL How did you go about doing the assignment: I predominately looked at the practice papers for this task. I found the task fairly straight forward as the proof making table is clearly set out and guides you along for ex...

TASK 1 CIVIL NOTES TASK 1.1 – ASSESSING THE MERITS OF A CASE – PROOFMAKING MODEL How did you go about doing the assignment: I predominately looked at the practice papers for this task. I found the task fairly straight forward as the proof making table is clearly set out and guides you along for example the first part had elements of formation for a contract under the Elements part so it was pretty evident that I needed to then list the relevant facts and evidence which show the formation of a contract. Strengths: I think having studied contract law in university helped with the actual content of this task. I had a solid understanding of the elements of contract formation and was able to quickly identify the key facts when reviewing the case materials. This prior knowledge meant I didn’t need to search extensively for answers, as the concepts were already familiar. Additionally, I made a conscious effort to summarize my responses to keep them concise and avoid overcomplicating the task. Given the multiple figures and details involved, this approach helped me ensure that I addressed all necessary parts without overlooking anything. Weaknesses: I felt strong in this task but there were a few small things I just missed such as referring to the defendant as Tasty Bites instead of Davika Lim which is incorrect as proceedings should be commenced in the owner of the businesses name and not under the business name as per UCPR r 7.19. Opportunities for further development: I think the actual proof making table that I used is something that is going to continue to be used throughout my future work. Additionally, the content of this task—particularly breaches of contract—is a common legal issue that I will likely encounter regularly in practice and I will likely find myself working on matters very similar to that of the task. Relevance of Learning to Career: This task was particularly relevant to my current work, as I occasionally deal with breaches of contract, primarily in relation to rental agreements or recovery of costs agreements. While my role often involves reminding clients of their contractual obligations, I have not yet had to deal with disputes at a more advanced stage. This task reinforced the importance of understanding breaches of contract and prepared me for future scenarios where these skills may be required. TASK 1.2 – DRAFTING AN INITIAL LETTER OF ADVICE How did you go about doing the assignment: I used a lot of headings to break all the content up and make sure I wasn’t missing any key points. I then completed it in small sections and used the relevant practice papers to find the information that I needed to discuss in the letter. This task took my a while to do just given the variety of information that needed to be included so I worked in small sections over a few days and tried not to jump ahead as I would get confused. Strengths: I send numerous costs disclosure and costs agreements every day for my work so I was super familiar with the contents of it. It is the most commonly asked about documents by clients in my job because I think people see the word costs and then these huge figures and panic that they are going to have to pay all these different amounts. Given this I have had to explain the contents of a costs disclosure agreement a fair bit which was good for this task cause I knew straight away what the most important points of the costs agreement would be such as the actual estimate for costs. This was good cause it otherwise can be a bit of information overload. Weaknesses: I have never written a letter of advice so I felt like I was really going in blind. I struggled to be concise with my information as given there were so many issues that needed to be included in the letter I found it difficult to stay in the world limit. Also given my lack of experience I wasn’t too sure what issues required more detail so I felt in my first draft I had just gone into lots of detail for every single part. I had to keep editing it to refine it but I am really pleased with my end result. Opportunities for further development: I think a letter of advice is something I will find myself doing in future jobs. It is relevant for every matter so I think this was just the start of many. I think this might be something that is predominately written from scratch rather than filling in a template which means I’m sure I will become quickly accustomed to drafting them. Relevance of Learning to Career: As mentioned before, drafting a letter of advice is a fundamental skill for any lawyer, and the experience I gained through this assignment has prepared me for similar responsibilities in future roles. TASK 1.3 – Drafting Pleadings - Statement of Claim How did you go about doing the assignment: I first filled in all the information I was confident in such as the court details and filing details and then went back through and began a first draft for the pleadings and particulars. I had to go through my pleadings and particulars a few times to make it less wordy and more straight forward. I also referred to Appendix 2 in the practice paper which had an example of a statement of claim. That was super helpful when I was trying to work out the best way of wording my particulars. Strengths: I draft Statements of Claims for my job almost daily. This was good because I was familiar with the contents of a Statement of Claim and how to fill one out. Math is not my strong suit so I use an online interest rate calculator when I draft the Statement of Claims at work. This was good cause I was able to use the same online calculator for this assignment to work out the interest. Weaknesses: Since I use a template for drafting Statement of Claims at work, I have never had to actually write the pleadings and particulars. I found this a little tricky but I had a rough idea given my experience with drafting for work. Opportunities for further development: As I gain experience in different areas of law, I expect to encounter a broader range of pleading requirements. This will provide opportunities to refine my drafting skills and adapt them to various legal contexts. Relevance of Learning to Career: As I have said for all the other tasks I think this is something that lawyers deal with daily, whether that’s drafting the statement of claim or being on the receiving end of one. Drafting pleadings is a fundamental skill for lawyers, as it forms the foundation of legal proceedings. NOTES TASK 1 Reasonable Prospects of Success Must determine if matter has prospects of success before commencing using test. Test involves consideration of whether the matter is ‘so lacking in merit or substance as to be not fairly arguable’ (Keddie v Stacks/Goudkamp Pty Ltd (2012)). If commence action with no prospects could have disciplinary action or personal costs order against lawyer. Monetary Limits to Jurisdiction Liquidated debt – the District Court has jurisdiction to hear matters for up to $1,250,000. Proceedings for less than $100,000 should go to Local Court. Local Court limits is over $20,000 but less than $100,000 for General Division and less than $20,000 for its small claims division. Disclosure of Costs As soon as practicable after instructions are given, a law practice must provide a client with written disclosure regarding: - Basis on which costs are calculated in matter - Estimate of total costs - Clients right to negotiate costs - Clients right to negotiate billing method - Clients right to receive a bill from law practice - Clients right to request itemised bill after receiving bill that is not itemised or partially itemised - Clients right to seek assistance of designated local regulatory authority in event of dispute about costs (NSW = Office of the Legal Services Commissioner) There is an ongoing obligation to disclose. Law practice must take all reasonable steps to satisfy client has understood and given consent to proposed course of action for conduct of matter and proposed costs (LPUL s174(3)). Section 180 of LPUL has provisions for costs agreements. Costs Agreement: - the amount of costs and disbursements or, if the amount is not known, the basis of calculating the costs and disbursements and an estimate of the likely costs and disbursements - the client's right to receive a bill of costs, and - the client's right to request a review of the costs charged. Uniform Law Costs (solicitor/client costs) and ordered costs (party/party costs). Uniform Law Costs are all costs fairly chargeable to client by solicitor in accordance with cost agreement. The client is responsible to pay their solicitor these costs no matter outcome of proceedings. The Legal Profession Uniform Law Application Act 2014 (NSW) and the Legal Profession Uniform Law Application Regulation 2015 (NSW) provide restrictions on what can be charged as costs between solicitor and client for. Ordered costs describe costs that one party to proceedings is entitled to recover from another party to the proceedings. Ordered costs are a reimbursement of Uniform Law costs but will usually only be a part reimbursement and equate to a percentage of Uniform Law costs (in state matters, it could be between 65% and 80%, and in federal matters (because of the fixed court fees regime), it could be 50% or less). Costs reserved The costs of the hearing (or of an application during the proceedings) will be determined on a later occasion. On final judgment, any order for costs must specifically refer to any costs reserved on earlier occasions otherwise they will not be included. Costs in the cause The costs of an application will be payable by the party who is ordered to pay the costs at the final hearing. Costs to follow the event The costs will be payable by the unsuccessful party at the “event”, that is, the hearing. Costs to be the (party’s) in any event The party is entitled to the costs of the application (whatever the outcome of the final hearing) but is not entitled to payment/assessment of the costs until the “event” – usually final judgment. Costs thrown away to be the (party’s) in any event The party is entitled to the costs they have incurred as a result of an action or omission by another party (for example, an amendment to a pleading by the other party or an adjournment) (whatever the final outcome). The party is not entitled to payment of the costs until after the “event”, that is, the hearing (unless the court orders otherwise). No order as to costs The court makes no order. The effect is that each party pays their own costs. Each party to pay their own costs This has a similar effect to “no order as to costs”. Costs to be assessed taxed or agreed The party in whose favour the costs order is made will submit a bill to the paying party. If the costs cannot be agreed they will be assessed by a costs assessor (or taxed by the court if the order was made in a court in which taxation still applies). Costs will be assessed on an ordinary basis unless the court otherwise orders. Costs to be paid on an indemnity basis These are more generous than an ordinary basis but are usually ordered only in exceptional circumstances – when the circumstances of the case or the conduct of a party justifies a departure from the usual order. Alternatives to Litigation Obligation under ASCR 2015 rule 7.2 to notify client of the availability of alternative processes. Limitation Periods Need to disclose limitation periods. Limitation periods vary for different causes of action and between jurisdictions. Need to refer to relevant legislation i.e. Limitation Act or could refer to Lawcover website which has a schedule of limitation periods with all the relevant legislation. Defended Matters Defendant must file a defence within 28 days of being served the statement of claim, otherwise default judgment may be entered by the plaintiff. Practice Note Civil No 1 – Case Management in the General List Before commencing proceedings or filing a defence, legal practitioners must give their clients notice in writing about the requirements of the Practice Note and of the Court's insistence on compliance with its orders. Court may dismiss actions or cross claims or strike out defences if orders are not complied with and that the Court may make costs orders against parties who fail to comply with its orders. Pleadings Documents used by parties to set out their case. The function of pleadings is to provide the other party and the court with sufficient information about the cause of action: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 15.1. Rules for Content of Pleadings: - State material facts - Pleading must disclose a cause of action, if not action will fail (UCPR r 14.28). - State material facts but not evidence by which they are to be proved. - State material facts not law. Pleadings must not include conclusions of law, argument or inference. There should be a legal connection between the elements of the cause of action and the material facts. A pleading should clearly state the relief or remedy claimed: UCPR r 6.12; FCR r 8.03. Commencing Proceedings Form of originating process, main forms include: - Statement of claim: a detailed pleading setting out all material facts. Used in Local, District and Supreme Courts of NSW (UCPR r6.3). - a summons – sets out the relief or orders sought. An affidavit is sometimes also required to be filed: UCPR r 6.4.  - an application – generally a brief document summarising the action followed by more detail in the form of a further pleading and/or affidavit evidence. For example, proceedings in the Federal Court are commenced by way of an originating application accompanied by a statement of claim or an affidavit. Statement of Claim In the District Court of New South Wales, proceedings are generally commenced by way of a statement of claim: UCPR Pt 6 Div 2. Both liquidated and unliquidated claims are commenced by statement of claim: UCPR r 6.3. Party is a Business: If a party operates a business under a business name, proceedings should be commenced in the proprietor’s own name (whether natural persons or a corporation) and not under the business name: UCPR r 7.19. ASIC administers a national business names register. A search on a business name can be made at the Australian Securities and Investments Commission website. Party is a Corporation: If a party is a corporation, its ACN should be included: Corporations Act 2001 (Cth) s 153. The address for service is the registered office. This information can be obtained by conducting a corporation search using the Australian Securities and Investments Commission website. Originating Process Under UCPR r 4.2, the following details should be included on the originating process: - the name of the court in which the proceedings are to be commenced - if relevant, the division in which the proceedings are intended to be heard - if relevant, the list in which the proceedings are intended to be entered - the venue at which the proceedings are intended to be heard - the title of the proceedings - the nature of the process (summons or statement of claim) - if the party has engaged a lawyer to act as their legal representative, the lawyer’s name - if the process is filed by a person who is neither the party nor the party’s lawyer or lawyer’s agent, the capacity in which the person acts when filing the document - the party’s address and their address for service - if the party has engaged a lawyer to act as the party’s legal representative, the party’s lawyer’s phone number and email address - if the party has not engaged a lawyer to act as the party’s legal representative, the party’s phone number and email address or (if the party has no email address) a statement that the party has no email address - the address, if known, of any defendant(s). Particulars is used to describe details of material facts Commencing Proceedings The venue at which proceedings are to be heard is the venue specified by the plaintiff in the originating process: UCPR r 8.1. A claim for the recovery of a debt is usually a liquidated claim as the amount claimed is based on a determined or quantifiable amount, for example, outstanding rent when the amount of rent is known and the period of unpaid rent is known. Costs In a Statement of Claim there needs to be a claim for relief which states the remedy or relief being sought. If interest is claimed: - details of the rates and periods must be set out: UCPR r 6.12(7) - - the claim for interest should be on an ongoing daily rate, so a defendant or respondent can calculate, at any given time, the amount required to discharge the debt - the rate of interest for the purposes of CPA s 100 is to be calculated “at such rate as the court thinks fit” - interest on interest cannot be claimed: CPA s 100(3)(a). Under UCPR r 6.12(3), a creditor can also claim for filing and service fees and professional costs, provided these costs are specifically claimed: - Filing and service fees: available on the District Court New South Wales website. The Civil Procedure Regulation 2017 (NSW) also prescribes a fee payable if the court sheriff serves the process: cl 5 and Sch 2. Most lawyers use private process servers who charge more than the prescribed fee. The amount charged by the process server may be claimed on the statement of claim, but where that rate is higher than the sheriff’s fee it may have to be justified. - Professional costs: The District Court fixed cost scale regulates the amount of costs that may be recovered from the debtor. Section 59(2) of the Application Act prohibits the recovery by a solicitor from the client of more than the costs fixed by the regulations (that is, the scale of fixed costs). See Legal Profession Uniform Law Application Regulation 2015 (NSW) (Application Regulation) cl 24 and Sch 1 for fixed costs in the Local Court, District Court and Supreme Court. Costs included in a Statement of Claim Interest rates on a District Court Claim (located under the heading Practice and Procedure on the District Court) website): https://www.districtcourt.nsw.gov.au/practice-and- procedure/interest-rates.html. I have also found an online interest rate calculator that is helpful https://www.netlaw.com.au/calculator/nsw/district-court-pre-judgment-rate. For the period 1 January 2025 to 30 June 2025 the following interest rates apply: Pre-judgment interest rate: 8.35% (the amount of pre-judgment interest is set by the District Court (see Practice Note Civil 15 for more information)). The pre-judgment interest rate is the applicable rate for this activity. Post-judgment interest rate: 10.35% (the amount of post judgment interest is set by Rule 36.7 of the Uniform Civil Procedure Rules 2005). Court fees payable on a District Court Statement of Claim (located under in the Civil Procedure Regulation, Schedule 1 court fees) Filing fee for a corporation (as this applies in this matter) is $2,098.00  Sheriff’s service fee = $81.00 (found in Schedule 2 "Sheriff's Fees") Solicitor’s fees (located in the Legal Profession Uniform Law Application Regulation 2015 – Schedule 1)  Preparationof process = $822.00 ($904.20 incl GST) - please note that this is all you can claim despite any agreement you may have with your client. POTENTIAL QUESTIONS: Reasonable Prospects of Success 1. What is the test for determining whether a matter has reasonable prospects of success? The test is whether the matter is "so lacking in merit or substance as to be not fairly arguable," as established in Keddie v Stacks/Goudkamp Pty Ltd (2012). 2. What are the consequences of commencing legal action without reasonable prospects of success? A lawyer may face disciplinary action or a personal costs order, where they could be held personally responsible for the legal costs incurred. Monetary Limits to Jurisdiction 3. What are the monetary limits of the District Court's jurisdiction in NSW? The District Court has jurisdiction to hear matters involving liquidated debts up to $1,250,000. 4. When should a matter be commenced in the Local Court instead of the District Court? A matter should be commenced in the Local Court if the amount in dispute is less than $100,000. 5. How do the monetary limits differ between the Local Court’s General Division and its Small Claims Division? The General Division hears matters over $20,000 and up to $100,000, while the Small Claims Division hears matters under $20,000. Disclosure of Costs 6. What must be included in a law practice’s written disclosure to a client regarding costs?  The basis on which costs are calculated.  An estimate of total costs.  The client’s right to negotiate costs.  The client’s right to negotiate the billing method.  The client’s right to receive a bill.  The client’s right to request an itemised bill.  The client’s right to seek assistance from the designated local regulatory authority (e.g., NSW Office of the Legal Services Commissioner) in the event of a dispute about costs.  7. What ongoing obligations does a law practice have in relation to costs disclosure? The law practice must provide updated disclosures whenever there is a significant change in the costs or circumstances of the matter. 8. Under what circumstances must a law practice ensure a client has understood and consented to the proposed course of action and costs? Under LPUL s 174(3), the law practice must take reasonable steps to ensure the client understands and consents before proceeding with the proposed course of action or incurring the associated costs. Costs Agreements 9. What are the key elements that must be included in a costs agreement under Section 180 of the Legal Profession Uniform Law (LPUL)?  The amount of costs and disbursements, or the basis for calculating them, along with an estimate.  The client’s right to receive a bill of costs.  The client’s right to request a review of the costs charged. 10. What is the difference between Uniform Law Costs and Ordered Costs?  Uniform Law Costs: Costs fairly chargeable by a solicitor to their client, based on the costs agreement.  Ordered Costs: Costs one party may recover from another as ordered by the court, typically a partial reimbursement of Uniform Law Costs. 11. Under what circumstances can a court order costs to be paid on an indemnity basis? Indemnity costs are typically ordered in exceptional circumstances, such as where one party’s conduct has been unreasonable, vexatious, or in breach of procedural obligations. Alternatives to Litigation 12. What is the obligation of legal practitioners under ASCR 2015 Rule 7.2 in relation to alternative dispute resolution? Legal practitioners must inform their clients about the availability of alternative dispute resolution processes as an alternative to litigation. Limitation Periods 13. Why is it important for a lawyer to disclose limitation periods to their client? Failure to commence a claim within the applicable limitation period may result in the claim being barred, potentially exposing the lawyer to liability for professional negligence. 14. How can a practitioner determine the relevant limitation period for a specific cause of action? By consulting the relevant legislation, such as the Limitation Act 1969 (NSW), or by referring to resources like the Lawcover website, which provides a schedule of limitation periods. Defended Matters 15. What is the timeframe for a defendant to file a defence after being served with a statement of claim? The defendant must file a defence within 28 days of being served.  16. What are the potential consequences of failing to file a defence within the required timeframe? The plaintiff may seek default judgment against the defendant. Pleadings 17. What is the primary purpose of pleadings in civil litigation? To provide the other party and the court with sufficient information about the cause of action or defence, facilitating a fair and efficient resolution. 18. What are the key requirements for the content of pleadings under UCPR r 15.1? Pleadings must:  State material facts but not evidence.  Disclose a cause of action.  Avoid conclusions of law, argument, or inference. 19. What are the consequences if a pleading fails to disclose a cause of action? The action may be dismissed under UCPR r 14.28. Commencing Proceedings 20. What are the key differences between a statement of claim, a summons, and an originating application?  Statement of Claim: Sets out all material facts for liquidated or unliquidated claims.  Summons: Seeks specific relief or orders, often accompanied by affidavit evidence.  Originating Application: Typically a brief document followed by detailed pleadings or affidavits. 21. How should proceedings be commenced if a party is a business operating under a business name? The proceedings should be commenced in the proprietor’s name (whether a natural person or a corporation), not the business name (UCPR r 7.19). 22. What information must be included in the originating process under UCPR r 4.2? Details such as the court’s name, division, venue, title of the proceedings, type of process (e.g., statement of claim), and the parties’ contact details must be included. Costs 23. What must be included in a statement of claim when claiming interest on a debt?  The rate of interest.  The period over which interest is claimed.  An ongoing daily rate for easy calculation of the debt. 24. How are filing and service fees determined, and what factors could affect the recoverability of these fees? Filing and service fees are prescribed by regulations such as the Civil Procedure Regulation 2017 (NSW). Private process servers may charge higher fees, which must be justified for recovery. 25. What are the fixed cost scales for professional costs in the District Court under the Legal Profession Uniform Law Application Regulation 2015 (NSW)? The fixed costs are regulated by the schedules in the Regulation, which set maximum recoverable amounts based on the nature and complexity of the matter. NOTES TASK 2 Drafting Court Documents If order is drafted badly a further application to the court may be necessary for amendment or further orders. This wastes time and money and will result in an unhappy client. In addition, the court usually has power to order costs against the lawyer concerned. See, for example, Civil Procedure Act 2005 (NSW) ss 98 and 99. Substantive and Machinery Provisions Substantive provisions go to the heart of what the court is ordering; for example, specific performance of the contract. Machinery provisions include matters such as time limits and which party is to undertake which step. It is usually easier to alter machinery provisions than substantive provisions. Consent Orders and Notations The most common way to resolve a litigated matter is by way of an agreed settlement between the parties. A settlement is usually embodied in consent orders, which are drafted by the parties’ lawyers and then formally made by the court. The consent orders must be acceptable to the court, but the responsibility for precise, accurate and effective drafting rests with the lawyer. The document embodying the consent orders may be called: - terms of settlement - short minutes of order - consent judgment or order The court may require a combination of these documents to be filed. The documents that are required will depend on the court. The document is signed by the parties and/or their legal representatives and there will be at least three signed copies – one for the court and one for each party. Evidence – Must be Legally Admissible Even if the evidence is relevant, it still may be inadmissible if it infringes one or more of the exclusionary rules. These rules and the exceptions to them are set out in Evidence Act Ch 3 and include: hearsay: Pt 3.2 opinion: Pt 3.3 admissions: Pt 3.4 evidence of judgments and convictions: Pt 3.5 tendency and coincidence: Pt 3.6 credibility: Pt 3.7 character: Pt 3.8 identification evidence: Pt 3.9  privileges: Pt 3.10. Hearsay A witness can only give relevant evidence if its something they saw, heard or otherwise perceived. First-hand hearsay Section 62 defines “first-hand hearsay” as: (1) … a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made. Hearsay in Civil Proceedings If maker of representation is unavailable to give evidence about asserted fact, evidence concerning that fact is not subject to the hearsay rule. However, reasonable notice in writing needs to be given to each party of an intention to adduce the evidence. If notice provided, party must clearly and precisely state what evidence is upon which reliance is placed. Can’t give general description or summary. If the maker is available to give evidence about an asserted fact, the hearsay rule does not apply if it would cause undue expense or undue delay or it would not be reasonably practicable to call the person: s 64. Hearsay in Criminal Proceedings If the maker of a representation is unavailable, first-hand hearsay may be admissible, subject to the notice requirements in Evidence Act s 67. If the maker is available, first-hand hearsay is only admissible if the person who made the previous representation has been or is to be called as a witness and can be cross-examined about an asserted fact: s 66(2). Opinion Evidence The general rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76. Other exceptions to the opinion rule include: lay opinion: s 78 expert opinion: s 79 evidence in relation to the character of accused and co-accused persons: ss 110 and 111. Etc Lay Opinion The opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or events: s 78. Some examples include evidence in relation to the identity of individuals, a person’s apparent age and the state of the weather. Expert Evidence If a person has specialised knowledge based on training, study or experience, the opinion rule does not apply to their opinion that is wholly or substantially based on that knowledge: Evidence Act s 79. Admissions The hearsay rule and the opinion rule do not apply to evidence of an admission or to evidence of previous representations that were made in relation to an admission at the time it was made, or shortly before or after that time, and to which it is reasonably necessary to refer in order to understand the admission: Evidence Act s 81. Tendency and Coincidence Tendency rule is that evidence of a person’s character, reputation or conduct, or a tendency the person has or had, the purpose of which is to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way or to have a particular state of mind is not admissible, unless it meets certain conditions set out in the provision: s 97. The coincidence rule is that evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in either the events or the circumstances, or both, in which they occurred, it is improbable that the events occurred coincidentally, unless the evidence meets certain conditions set out in the provision: s 98. Credibility of Witnesses The general rule set out in Evidence Act Pt 3.7 is that evidence that is relevant only to the assessment of a witness’s or other person’s credibility is not admissible: s 102. Credibility evidence is evidence that: is relevant to a person’s or witness’s credibility because it affects the assessment of that person’s or witness’s credibility; or is not admissible or cannot be used for another purpose under the hearsay or opinion rules (Pts 3.2 and 3.3) but nonetheless affects the assessment of the credibility of that person or witness. Character Evidence In criminal cases, the general rule is that the prosecution is not permitted to adduce evidence of the accused person’s character. The hearsay rule, opinion rule, tendency rule and credibility rule do not apply to evidence adduced by an accused to prove that they are generally, or in a particular respect, a person of good character: s 110(1). Identification Evidence Part 3.9 of the Evidence Act provides for the circumstances in which identification evidence is admissible. The Part only applies to criminal proceedings. Privileges In civil cases, a party to proceedings may require the production of documents before the hearing. Part 3.10 of the Evidence Act deals with objections to the adducing of evidence in court where a type of privilege may apply. This part contains rules relating to different types of privilege that might be claimed over evidence sought to be adduced in court, such as: client legal privilege; professional confidential relationship privilege sexual assault communications privilege journalist privilege privileges relating to religious confessions evidence of settlement negotiations evidence excluded in the public interest. Client Legal Privilege Pursuant to s 118, evidence is not to be adduced by a party if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person Practice and Procedure in the Federal Courts In Federal Court proceedings, the party claiming relief is the applicant and the party against whom the applicant claims relief is the respondent. If the business name is registered, and the register gives the person’s name and residential address, the proceedings must be brought against the person in the person’s name or a partnership’s name if appropriate: r 9.51. You generally start proceedings in the Federal Court by filing an originating application. A statement of claim prepared in accordance with Form 17 (where the applicant seeks relief that includes damages) or a statement of claim or an affidavit must accompany the originating application: r 8.05. You file the application in the registry (together with sufficient copies for service and proof of service) and the registrar stamps and signs it: r 2.01. Affidavit or Statement of Claim You must file and serve, with the originating application, either an affidavit or a statement of claim, whichever is appropriate, setting out the nature of the claim and the material facts it is based on: FCR r 8.05. If an applicant seeks relief that includes damages, a statement of claim (Form 17) must accompany the originating application: r 8.05(1)(a). In all other cases, you can use a statement of claim or an affidavit: r 8.05(1)(b). Responding to Proceedings – Appearances and Defences Under the FCR, when acting for a respondent, you do not have to enter an appearance. However, you must file a notice of address for service before the return date: Form 10. A respondent not wanting to challenge the relief sought must, before the return date (r 12.01(2)), file a “submitting notice” in accordance with Form 29, stating: that they submit to any order whether they want to be heard on the issue of costs an address for service. Pleadings “Pleading” means a statement of claim, a statement of cross-claim, a defence, a reply and any pleading after a reply. It does not include an originating application, an interlocutory application, a notice of any kind or an affidavit. Pleadings must state the material facts the party relies on that are needed to give the opposing party fair notice of the case against them. They can also raise a point of law. Pleadings do not state the evidence to prove the material facts, which is set out in an affidavit. Personal Service Part 10 of the FCR deals with personal service and provides that personal service is effected on: an individual – by leaving the document with the individual: r 10.01 a corporation, or the liquidator or administrator of a corporation (r 10.02), by (Corporations Act 2001 (Cth) s 109X(1)): (a) leaving it at, or posting it to, the company’s registered office (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory (c) if a liquidator has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC Deemed Service If it is impractical to serve a document in the manner the FCR prescribe and you have taken steps to bring the document to the notice of the person to be served, the court can order that the document be deemed to be served on the person on the date specified in the order: r 10.23. Interlocutory Applications “an application, other than a cross-claim, in a proceeding already started” The application must specify each interlocutory or interim order sought and, if appropriate, be accompanied by an affidavit: r 17.01(1) You must serve the interlocutory application (and any accompanying affidavit) on any other party at least 3 days before the date fixed for the hearing: r 17.01(2). Default Judgment Division 5.2 of the FCR sets out the orders the court can make when a party is “in default”. A party is in default when it fails to (r 5.22): do a required act or to do an act in the required time comply with a court order attend a hearing prosecute or defend the proceedings with due diligence. Kanes Hire Pty Ltd v Anderson Aviation Australia Kane’s Hire Pty Ltd (“Kane’s Hire”) purchased an aircraft from Anderson Aviation Australia Pty Ltd (“Anderson Aviation”) for $253,660.00. To be granted a certificate of airworthiness, the aircraft was required to have a “dry weight” (that is, a weight without passengers) of less than 397.98kg. Aircraft was too heavy, Kane’s Hire alleged the aircraft was heavier than was represented and promised under the relevant purchase agreement and, because of breaches of contractual obligations and misleading conduct on the part of Anderson Aviation, Kane’s Hire suffered loss. The evidence adduced by Kane’s Hire of the conversations which took place with Anderson Aviation was drafted using alleged direct speech but was prefaced with the phrase “words to the effect of”. By comparison, the evidence given by Anderson Aviation did not use direct speech. The evidence given by Anderson Aviation was broader in nature, recalling the general gist of the conversations which took place. The Court was scathing of the now common practice of evidence of alleged direct speech being prefaced with the phrase “words to the effect of”. The Court noted this practice arose as a means of protecting a witness from challenges in cross-examination where the witness could not recall the exact words used in conversation. The Court further noted the practice of a witness and a lawyer creating a conversation in direct speech from the witness’s memory of the gist of a conversation was “logistically, ethically and grammatically wrong.” Wild v Meduri This case concerned the validity of a deceased’s will that was executed in 2009 (the Will). The deceased was survived by her six children and the Will, among other things, appointed two of her children (the Respondents) as executors and trustees of the estate as well as leaving them a property as tenants in common (the Property). The ruling in Wild v Meduri overturned findings in previous cases such as Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd and Gan v Xie. Prior to this decision, NSW affidavit practices had closely aligned with stricter federal standards, limiting the use of indirect speech.  1. Restoration of Indirect Speech in Affidavits NSW lawyers can now use phrases like “words to the effect” when drafting affidavits. This acknowledges the reality that witnesses often cannot recall exact words, yet their testimony about the general content of conversations remains critical to the court. 2. Practical Implications for Witness Recollections By allowing indirect speech, the ruling eases the evidentiary burden on witnesses and provides lawyers with a more practical approach to drafting affidavits, especially in cases where precise recollection is challenging. 3. Departure from Earlier Standards The decision reflects a departure from the federal approach and earlier NSW case law, emphasizing the importance of flexibility in presenting evidence without compromising its reliability. The Court addressed a submission that there should be no adverse credit finding against a witness because he was unable to recall the exact words that he used some 10 years earlier. Bell CJ rejected the position that the giving of evidence of the “gist” of a conversation in the direct voice (with the qualifying words) was adverse to the credibility of a witness. His Honour placed significant importance on the use of the qualifying words: “when evidence is given in direct speech but prefaced by the expression “words to the effect”, that witness is not providing a “verbatim recollection” of a conversation and should not be penalised or criticised for giving evidence in such a form”: (emphasis in the original). The “underlying purpose” of the approach was an “attempt to come as close to capturing the essence of a past conversation as possible without, when the customary preface is used, purporting to supply exactitude. Chronologies Document that sets out the relevant date and events related to the proceedings in a summary form in chronological order. May be prepared in table form, with reference to relevance of certain evidence and its physical location, and cross-referencing to other evidence, such as relevant paragraphs in affidavit evidence. In some courts its mandatory to hand up a chronology to assist judge in understanding facts. In the New South Wales Court of Appeal, the appellant must file a chronology in accordance with UCPR r 51.35 and a respondent may file an alternative or supplementary chronology: UCPR rr 51.34–51.38. Failure to file a proper chronology in the Court of Appeal may have adverse costs consequences. Interlocutory Applications Applications made by a party to the court for orders between the commencement and the end of proceedings to decide a particular point or matter, other than the matters to be determined in final resolution of the proceedings. Parties making an interlocutory application must do so by filing a notice of motion as soon as practicable. Examples for interlocutory proceedings include setting aside default judgment, summary judgment etc. Generally interlocutory application is made by notice of motion. Some specific situations where this doesn’t apply includes where other person consents. The notice must: identify the person seeking the orders in the motion if the person seeking the order(s) is not already an active party, state the address for service of that person identify each person affected by the order state the date, time and place where the motion is to be moved where the court has made an order altering the time of service of the notice, contain a note to that effect state concisely and precisely the nature of the orders sought. A notice of motion must be supported by written evidence given by affidavit rather than orally: UCPR r 31.2. An order for costs usually follows the outcome of the event – that is, if the applicant to the motion is successful in obtaining the orders sought, the respondent will most likely be ordered to pay the applicant’s costs of bringing the motion: UCPR r 42.1. Conducting ex parte Applications Party in ex parte applications has a duty to positively assist the court (usually in civil proceedings a party doesn’t need to reveal something to their discredit). Commentary – Cases Alstrom Ltd v Sirakas ‘Impracticable does not mean impossible’ Case was regarding breach of duties of good faith and honesty arising under contracts of service and implied by law. Mr Sirakas was not personally served with Statement of Claim. He is a resident in Romania and was temporarily in nsw. Plaintiffs obtained order for substituted service on Sirakas through means of leaving SOC with the solicitor acting for him in the then current matrimonial proceedings and leaving a copy at his residential property in Newtown. When the court was deciding whether substituted service should be set aside they considered the idea that impracticable does not mean impossible nor does it mean inconvenient. Whether service is impracticable must be decided according to the particular circumstances of the case at the time that the application for substituted service is made. The court also stated one factor which may affect the question whether personal service is practicable is whether the evidence in support of an application for substituted service satisfies the court there is a real possibility — not a remote or fanciful possibility — that an attempt at personal service will result in the defeat or frustration of the plaintiff’s proceedings. British American Tobacco Australasia Ltd v Taleb (No 1) Applicant alleges that the first and seventh respondents have, from a date unknown to the applicant, infringed the applicant’s WINFIELD trade marks by, inter alia, without licence or authority offering for sale and selling goods bearing one or more of the WINFIELD trade marks. Numerous unsuccessful attempts to effect personal service in accordance with the Rules were made at the addresses notified or given by the respective respondents, and all reasonable steps to make contact with and personally serve the respondents were pursued. There should be no necessity to prove the impossibility of service of documents upon a party in accordance with the Rules or any requirement to prove that further attempts to effect service in accordance with the Rules would otherwise be futile or not sensible or feasible. Service may be impractical if the prescribed method is, although “possible” or “feasible”, “not sensible” or “not realistic”. Court held, where there is evidence of actions, steps and circumstances which alone or in combination support, on the balance of probabilities, an inference that the documents have been brought to the relevant person’s attention, will satisfy the requirements. Atkinson v Crowley Dj had been entered against the Atkinsons resulting from some damages to a property they had sold to Crowley. Atkinsons alleged they did not become aware of the dispute despite substituted service. Court had to determine whether substituted service was appropriately approved. A court must be satisfied that the method of substituted service would in all reasonable probability, if not certainty bring the proceedings to the attention of the person to be served. Court held that it was “likely” the defendants had learnt of the proceedings. Combis (as Trustee) v Spottiswood Combis are trustees of bankrupt estate. Mr Spottiswood had transferred funds to his wife Mrs Spottiswood. Seeking the amount paid to Mrs Spottiswood is payable to them. The trustees have made, by their solicitors and process servers, numerous attempts to serve Mrs Spottiswood with the originating application and supporting affidavits. The court recognised that where experience has shown that a particular method of communication has resulted in material being brought to the attention of the person to be served, an order for substituted service according to that method will be likely to achieve the same result. TASK 2.1 – DRAFTING COURT DOCUMENTS FOR AN INTERLOCUTORY APPLICATION – Notice of Motion How did you go about doing the assignment: I used the practice papers and particularly utilised the appendix’s that were recommended. These examples guided me in working out my phrasing for the orders sought in the notice of motion. The affidavits I ended up just writing everything that was important and then worked through multiple drafts to refine and condense the content. I ensured the affidavits complied with the rules, such as using annexures to reference documents like emails instead of unnecessarily describing their contents in detail. Strengths: While I wouldn’t say I had many standout strengths in this task, effective time management was a key factor. I planned for “buffer days” in my schedule, which allowed extra time to work on tasks that ended up taking longer than anticipated. This proved especially helpful for this assignment, as drafting the affidavits took more time than I initially expected. Weaknesses: The most challenging aspect of this task was determining what information was relevant to include in the affidavits. I found myself second-guessing every detail, struggling to distinguish between what was essential and what could be omitted. Opportunities for further development: Drafting Notices of Motion and affidavits is a skill I expect to develop further as I progress in my career. Over time, I anticipate becoming more confident in assessing what information is necessary. Additionally, I believe managing affidavits will become more intuitive when I’m working with input from others, rather than relying solely on my own drafting. Relevance of Learning to Career: This task is highly relevant to my career, as Notices of Motion and affidavits are common across many areas of law. While they are prevalent in my current workplace, I haven’t had direct involvement with them until now. Developing this skill will undoubtedly prove useful in both my current role and future legal practice. TASK 2.2 – PREPARING ORAL SUBMISSIONS – Chronology + Outline of Submissions How did you go about doing the assignment: To organize the information, I began by handwriting a detailed timeline with the actual dates of events rather than the relative references provided (e.g., "9 months ago"). This process helped me clarify the sequence of events, which made completing the chronology much easier. Once the timeline was established, I worked on the simpler aspects of the submissions first, such as identifying the relevant laws, cases, and elements to be established. For the content of the submissions, I wrote a comprehensive draft containing all the points I wanted to make and then edited it multiple times to ensure it was clear, concise, and well-structured. Strengths: I allocated a lot of time to complete this assessment and spent a lot of time working out a timeline of what happened as the file with all the information wasn’t in chronological order so even when I was trying to fill out a chronology it was really hard to wrap my head around what went where. I ended up handwriting a timeline and translating the relative dates into actual dates provided clarity and became a strong foundation for both the chronology and the submissions. Weaknesses: This was one of the harder assessments I have done. It took me a really long time to do, particularly the actual submission part. I struggled with the outline part and kept providing too much detail or analysis which meant I spent a lot of time editing. Opportunities for further development: Whether or not it’s formally required, I see great value in drafting an outline for any submissions I might present in court. This process not only helps with organization but also ensures that all necessary points are addressed. Relevance of Learning to Career: Preparing oral submissions and creating structured outlines are fundamental skills for legal practice. This task highlighted the importance of having a clear outline for submissions to ensure no critical elements are overlooked. I can see myself applying this approach in any future submissions I need to make. NOTES TASK 3 Settlement Offers and Associated Cost Consequences Settlement offers can be made in two ways: formally (under the court rules for an offer of compromise) or informally (via a Calderbank offer). Offer of Compromise (under UCPR):  Written (r 20.26(1)).  No amount for costs or expression of costs being included (r 20.26(2)(c)).  Must state it is made in accordance with the court rules (r 20.26(2)(d)). Costs when an offer is accepted (UCPR r 42.13A):  Plaintiff's offer: Entitled to a costs order against the defendant on an ordinary basis up to the offer’s making (r 42.13A(2)).  Defendant's offer: Defendant gets a costs order against the plaintiff on an ordinary basis up to the offer’s making (r 42.13A(3)). Costs when a plaintiff's offer is not accepted (UCPR r 42.14):  If the plaintiff wins and the result is "no less favorable" than the offer: o Costs are on an ordinary basis until the day after the offer (if made before trial) or until 11 am the day after it was served (if made after trial starts). o After this point, the plaintiff is entitled to costs on an indemnity basis (r 42.14(2)). Costs where a Defendant's Offer is Not Accepted 1. Where the judgment/order is "no more favorable" to the plaintiff than the defendant’s offer (UCPR r 42.15): o Ordinary costs up to the day after the offer (if made before trial) or until 11 am the day after it was served (if made after the trial starts). o Indemnity costs after that period. 2. Where the judgment/order is "no less favorable" to the defendant than the defendant’s offer (UCPR r 42.15A): o Ordinary costs up to the day after the offer (if before trial) or until 11 am the day after it was served (if after trial starts). o Indemnity costs after that period. Federal Court Rules 2011 (Cth)  Offer to Compromise: Made via a signed Form 45, served before judgment. Must specify whether costs are included or additional (FCR r 25.01, r 25.03).  Costs where an offer is accepted (FCR r 25.12): o If the offer does not include costs, the offeree may tax costs on an ordinary basis against the offeror up to 14 days after the offer.  Costs where an applicant’s offer is not accepted (FCR r 25.14(3)): o If the applicant wins and the judgment is more favorable than the offer:  Ordinary costs up until 11 am the day after the offer.  Indemnity costs after that.  Costs where a respondent’s offer is not accepted: o Less favorable judgment: The applicant gets no costs after 11 am the day after the offer, and the respondent gets indemnity costs.  o Dismissed proceedings: If the applicant unreasonably fails to accept, the respondent gets ordinary costs up to 11 am the second business day after the offer, and indemnity costs thereafter. Disclosure Obligations (Legal Profession Uniform Law, Section 177)  Law practices must disclose: o A reasonable estimate of legal costs the client will pay if the matter settles. o Any contributions toward those costs from another party. o This disclosure should be made before settlement is executed, ideally for risk management. Enforcement of Judgments Garnishee Orders Attachment of debt When a third party owes money to the judgment debtor, proceedings can commence to ‘attach’ the debt. This compels third party to pay their debt directly to the judgment creditor instead of judgment debtor. Attachable debts Wages and salary payable by garnishee to judgment debtor can also be attached (CPA s 119). Debts owing or accruing to the judgment debtor that are usually the subject of a garnishee order are: cheque accounts; term deposits in banks and building societies; saving accounts in banks and building societies; money held on fixed deposit; rent due; proceeds of a judgment or settlement in a common law claim; wages owed (however, for wages there are some special provisions); contract payments owed; and any other payments owed, such as loan repayments. Application for garnishee order Judgment creditor applies by way of notice of motion (form 69) to registrar to make garnishee order directed to a specific person (garnishee). Motion can be dealt with in absence of parties. Notice of motion must be accompanied by an affidavit in support of the application (form 69). The affidavit in support (a) must identify the garnishee, and any debts that are, or are reasonably likely to be, owed by the garnishee to the judgment debtor, and (a1) must state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and (b) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and (c) if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate The judgment creditor must file: Form 69; the affidavit in support; and the appropriate garnishment order in duplicate with as many copies as there are garnishees to be served. The types of order are: – garnishee order for debts (Form 70); and – garnishee order for wages or salary (Form 71) Garnishee’s response The garnishee order takes effect upon service of the order on the garnishee. The garnishee can dispute their debt liability to the judgment debtor but not the validity of the garnishor’s judgment against the judgment debtor: Granger v Granger VLR 288. The garnishee must pay the money attached by a garnishee order within 14 days of the wage or salary being due. In all cases involving the attachment of wages or salary, the amount to be deducted from the wages or salary is restricted, to ensure that the net weekly amount received by the judgment debtor is not less than a weekly compensation amount. Writs of Execution Types of writs of execution A writ of execution is a court order that allows the sheriff of the court to seize and sell property belonging to the judgment debtor. There are generally three kinds of writ of execution: writ for the levy of property; writ for possession of land; and writ for delivery of goods. To apply for writ, judgment creditor must have sufficient knowledge that judgment debtor has relevant property that can be seized. Judgments can be enforced by way of writ of execution up to 12 years after obtaining the judgment. After the 12-year period has elapsed, leave must be obtained by notice of motion and affidavit in support. Common features of writs - the sheriff must put the property up for sale as soon as practicable; - the property must be sold in the order the sheriff considers best for the speedy satisfaction of the judgment without undue expense and with minimal hardship to the judgment debtor or any other person; - the property must first be put up for sale by public auction to the highest bidder by the sheriff or by an auctioneer appointed under UCPR r 39.8;  - if the final auction bid is substantially less than the market value of the property, then a sale by private treaty may be attempted; and - the proceeds of the sale will go first to satisfy the sheriff’s fees and expenses, then to the judgment creditor to satisfy the judgment debt and finally the remainder to the judgment debtor. Advantages and disadvantages of a writ of execution Can be really effective and inexpensive, if there is real belief that there are goods which a levy can be made, it is common for judgment debtors to pay sheriff at door rather than have tv taken. However, a writ of execution may not be successful as there are many reasons, acceptable to the sheriff, as to why a levy cannot be made, such as assertions of: “all property jointly owned by spouse or partner”; “all goods subject to a security interest in goods or hire purchase”; “person owns no goods except protected assets”; or “person no longer resides at address”. DOWNSIDE OF WRIT OF EXECUTION After a levy has been made, the judgment debtor is advised to apply to pay by instalments. If granted, that order has the effect of staying the writ. If the judgment debtor fails to pay an instalment, the judgment creditor has to: (a) file an affidavit to that effect; (b) pay another fee for an attempt to execute a writ; and (c) request the sheriff to proceed with the writ. A writ may have expired by this time and, if this happens, the whole procedure has to start again. Writ for the levy of property Property that may be seized Section 106 of the CPA details the property that may be seized under a writ of levy of property as being: any goods in which the judgment debtor has a beneficial interest; money belonging to the judgment debtor; cheques, bills of exchange, promissory notes, bonds or other securities; choses in action or equitable interests in goods or land held by the judgment debtor; and land. Section 106(3) prohibits the seizure of clothing, bedroom or kitchen furniture, or tools of trade not exceeding $2,000, used by the judgment debtor or members of their family: UCPR r 39.46. A writ of execution has effect for 12 months but may be renewed: UCPR r 39.20. Procedure for writ for the levy of property In the case of a writ for the levy of property, UCPR r 39.3(4) provides that the affidavit in support: (a) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and (b) must state the address or addresses at which property belonging to the judgment debtor may be located, and (c) if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate Seizure and sale of goods When the writ for levy of property is issued (Form 66), the sheriff attends at the judgment debtor’s address and executes the writ. The sheriff is not to seize any more property than the sheriff thinks will be sufficient to satisfy the debt. Any property to be sold under a writ for the levy of property must be put up for sale as soon as practicable, taking into account the interests of each of the parties, to minimise any hardship caused to the judgment debtor or any other person: UCPR r 39.6. The sheriff may not sell before 6 days have elapsed after the seizure (unless the goods are perishable, which may be sold immediately after they are seized): UCPR r 39.30. The sale is to be advertised and property must be sold by auction to the highest bidder: UCPR r 39.7. However, the property must not be sold by public auction for a price substantially below its approximate market value, as fixed by the sheriff under UCPR r 39.10. The sheriff may request from the judgment creditor an amount as security for costs of the sheriff in effecting the execution: UCPR r 39.17. Proceeds from the enforcement of a writ for the levy of property are to be disbursed by the sheriff, under UCPR r 39.15: first to cover the sheriff’s fees and expenses; then to the judgment creditor to satisfy the judgment debt; and then to the judgment debtor for the remaining amount. Seizure and sale of land A writ of execution does not affect the title to land acquired by a person in good faith and for valuable consideration unless, when the person acquires title, they have notice that such a writ has been delivered to the sheriff and remains unexecuted. A writ for the levy of property must not be executed against land unless the judgment debtor consents or the sheriff is satisfied that the land should be sold before other property in order to minimise the hardship to the judgment debtor: UCPR r 39.6(3). This power to sell land may not be exercised if the outstanding judgment debt is less than the jurisdictional limit of the Small Claims Division of the Local Court, which stands at $20,000: Local Court Act 2007 (NSW) s 29. The land must not be sold or mortgaged by the judgment debtor during the 6 months after registration of the writ (or on expiration of the writ if that occurs first) except with the judgment creditor’s consent and pursuant to CPA s 113. The judgment debtor has 8 weeks from the time when the sheriff endorsed the notice of consent to deal with the land: CPA s 113(4). To enforce the writ, the judgment creditor must file an affidavit under UCPR r 39.21 verifying that: the writ has been registered against the land under Real Property Act 1900 (NSW) s 105 or Conveyancing Act 1919 (NSW) s 186; and the sheriff has provided advice that satisfaction cannot be obtained against the goods of the judgment debtor. Writ for possession of land Rule 39.3(2) of the UCPR provides that the content of the affidavit in support of the motion: (a) must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land— (i) as at the time the originating process was filed, or (ii) if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made, and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and (b) in relation to each such person— (i) must state that the person’s occupation of the land is not to be disturbed, or (ii) must state that the person is no longer in occupation of any part of the land, or (iii) must state that the person has been served with a notice pursuant to rule 6.8 or rule 36.8A and that the time allowed for the person to apply to the court to be joined as a defendant or to stay enforcement of the judgment, as required, has now passed, as the case requires, and (c) if the claim for possession of the land arises from a default in the payment of money, must give the particulars required under subrule (2A), and (d) must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and (e) must state whether costs are claimed and, if costs are claimed and the costs claimable are fixed by law, the amount (not exceeding the amount so fixed) that is claimed for costs. Advantages and disadvantages of a writ of possession If the judgment debtor has land that is not being used (for example, no tenant), this procedure may be useful. Writ for delivery of goods The procedure for application and execution of a writ for delivery of goods is similar to that for a writ for the levy of property, except for the following: the approved form for the notice of motion is Form 63; and the writ for delivery of goods is Form 64. In the case of a writ for the delivery of goods, the affidavit in support, as provided by UCPR r 39.3(3) must: state which goods have not been delivered to the plaintiff (judgment creditor) since the time the judgment was given; give particulars of any payments that the defendant (judgment debtor) has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the judgment was given; and state the address at which the goods are alleged to be located. The affidavit forms part of the Form 63 (Notice of motion – writ for the delivery of goods). Charging Order Charging orders are not often used but the procedure does have potential. Section 126 of the CPA provides for the use of charging orders in relation to the following security interests: shares in a public company; money on deposit in a financial institution, whether in the judgment debtor’s name or in trust for the judgment debtor; and any equitable interests in property. An application for a charging order is to be made by notice of motion, supported by an affidavit, sworn not more than 14 days before the date of filing. The affidavit under UCPR r 39.45(2): (a) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and (b) if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate (c) must indicate the extent (if any) to which the judgment debt has been satisfied under any other writ of execution, garnishee order or charging order issued by the court. Bankruptcy Bankruptcy may occur by agreement or court order protecting the debtor from legal action by their creditors. The proceedings can be costly, lengthy and very technical. A trustee must be appointed to investigate the judgment debtor’s affairs and realise the judgment debtor’s property for the benefit of creditors. The secured creditors have priority over unsecured creditors, such as judgment creditors. This means that, if the judgment debtor has few assets but many debts, a judgment creditor’s chances of complete recovery are small and the amounts recovered may not cover the costs of the proceedings. Obtaining Judgment by Default Required documents If the defendant does not file a defence within 28 days after service of the statement of claim, the plaintiff may apply for judgment by default against the defendant debtor: UCPR rr 14.3(1) and 16.2(1). When applying for default judgment, the following documents must be filed: notice of motion – default judgment for liquidated claim (Form 38); affidavit in support (part of Form 38); and affidavit of service (Form 41) detailing service of the statement of claim. Affidavit of service – proving service The person who serves the statement of claim should swear or affirm the affidavit of service, evidencing service of the statement of claim: Form 41 (Affidavit of service). Where service is by post, you should use registered or express post to prevent an argument about non-service in an application to set aside judgment. It is easier to complete an affidavit of service if the deponent of the affidavit of service has actual knowledge that the document posted was the correct one, addressed correctly and posted to the defendant. Affidavit in support of application The affidavit in support must be sworn or affirmed within 14 days before the date of filing the application for default judgment (UCPR r 16.3(4)) and must contain certain information (UCPR r 16.6(2)) such as: the amount due to the plaintiff; if any payments have been made since the filing of the originating application; if any interest is claimed; the source of the deponent’s knowledge concerning the debt; the amount claimed for costs; and how the originating application was served on the defendant. TASK 3.1 – ENFORCING A JUDGMENT – Table + Memorandum How did you go about doing the assignment: I relied heavily on the practice papers, particularly the one on enforcement of judgments, as it provided a solid foundation for this task. Completing the table first gave me a clearer understanding of the more effective methods of enforcement. However, I had to carefully search for specific keywords within the practice paper due to the extensive amount of information it contained. This helped me sift through the details efficiently. The answers to the questions in the memorandum were generally straightforward and clearly outlined in the practice paper, which made those parts of the task more manageable. However, I found Question 4 to be particularly challenging. Initially, I proposed garnishee orders for the business bank account, personal bank account, and debt owed. However, after calculating the total amount these methods would recover, I realized they would not cover the full amount owed. To address this, I included a writ for the levy of property concerning the oil painting. I also considered the possibility of including a charging order to recover Davika’s shares in the company, as this would allow for the entire debt to be repaid. Strengths: While I wouldn’t say I had any outstanding strengths in completing this task, starting with the table proved to be an effective approach. It provided me with a structured understanding of the enforcement methods and helped me to answer the memorandum questions more systematically. Weaknesses: The content for this assignment was entirely new to me. For instance, I had never encountered the concept of a garnishee order before. This meant I had to pay close attention to the reading material and approach it with a detailed and focused mindset to grasp the unfamiliar concepts. Opportunities for further development: This task provided valuable insight into enforcement mechanisms, which I may encounter in my future career. Gaining familiarity with these processes now gives me a solid foundation to build on as I continue to develop professionally. Relevance of Learning to Career: This assignment was highly relevant to my potential career path. It gave me practical experience in structuring a memorandum for a senior partner, a task I anticipate performing regularly as a junior lawyer. Moreover, navigating through complex enforcement mechanisms was a worthwhile exercise, offering a glimpse into the type of work I might undertake in practice.