Civil Litigation + Dispute Resolution

How do I make an Affidavit in NSW?

You (the deponent) make an Affidavit by swearing or affirming that the Affidavit’s contents are true before a witness who must be one of the following:

• A Justice of the peace (“JP”)
• A Solicitor
• A Barrister
• A Commissioner for affidavits
• A Notary public.

Mandatory Requirements

You MUST:

• Sign in the presence of the witness
• Sgn the foot of each page (excluding annexures)
• Initial any alterations, additions or erasures.

You or the witness MUST:

• Write or type the date in the title at the top of the front page of the Affidavit and in the introductory paragraph of the Affidavit
• Delete the word ‘Affirmed’, if you have taken an oath OR delete the word ‘Sworn’, if you have made an affirmation.

Following this, the witness MUST sign:

• underneath the words ‘Sworn (or Affirmed) at [place]’
• at the foot of each page of the Affidavit (although there is no need for the witness or deponent to sign the first page if it is only the title page of the Affidavit, containing none of the substance)
• the certificate endorsed on any annexure
• the certificate attached to any exhibit.

The witness must initial any alterations, additions or erasures (see UCPR 35.5).

The Affidavit MUST include:

• the witnesses’ name and address
• the JP’s registration number, if relevant.

If the witness is a JP, the JP may provide his or her registration number as a JP in place of the JP’s address.

JPs must write their registration number on any document they sign or witness as a JP in accordance with the “Guidelines for Justices of the Peace” developed in accordance with requirements under the Justices of the Peace Act 2002 (NSW) and the Justices of the Peace Regulation 2014 (NSW) and outlined in the Justices of the Peace Handbook.

If the witness is a notary public, the notary public must apply his or her seal.

Where an Affidavit or witness statement is being taken and the deponent or the witness requires an interpreter, the interpreter must give a certification in the form contained within the forms.

Annexures to an Affidavit

See UCPR 35.6 for more information.

If you are annexing documents to an Affidavit, you must include a certificate on the annexure that contains the following information.

The certificate must not be on a separate page from the annexure.

The pages of the Affidavit and the annexures must be consecutively numbered in a single series of numbers.

What Powers do the Victorian Courts have when Overarching Obligations are Contravened?

A Victorian Court may take into account a contravention of the Overarching Obligations in exercising any power in relation to a civil proceeding (Civil Procedure Act 2010 s28).

If the Court is satisfied on the balance of probabilities that there has been a breach the Court may make any order it considers appropriate in the interests of justice.

This includes:

1️⃣ An order that a person pay the costs and expenses arising out of a contravention;

2️⃣ An order that legal costs be payable immediately and enforceable immediately;

3️⃣ An order that a person pay compensation for financial loss that was materially contributed to by a contravention;

4️⃣ An order that a person take steps to remedy a contravention;

5️⃣ An order that a person not be permitted to take certain steps in the proceeding;

6️⃣ Any other order the court considers to be in the interests of a person prejudicially affected by the contravention (Civil Procedure Act 2010 s29(1)).

As the Court of Appeal observed in Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, s29 is a unique provision, conferring powers broader than those in any other jurisdiction in Australia, to sanction legal practitioners and parties who fail to meet their overarching obligations (at [17]).

The effect of s29 is to transform the overarching obligations from aspirational to obligatory (Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at [17]).

As Vickery J explained in Kenny v Gispreal Ltd [2015] VSC 284:

The facility provided by s 29 of the CPA alters the balance in favour of litigants who would otherwise incur a costs burden or suffer loss which was materially contributed to by a contravention of an overarching obligation, and does so in a significant way.

The CPA in this way gives very valuable, and commercially important advantages to litigants.

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Lawyers and the Overarching Obligations

The Overarching Obligations regime has a particular application to legal practitioners in Victorian Courts.

3 points should be noted:

1️⃣ The Overarching Obligations do not override any duty or obligation of a legal practitioner to a client to the extent that the overarching obligations can operate consistently (s13(1));

2️⃣ A legal practitioner or law practice MUST not cause a client to contravene the overarching obligations (s14);

3️⃣ Nothing in the Civil Procedure Act 2010 overrides any duty or obligation of a legal practitioner to the court whether arising under the common law, by statute, or otherwise (s15).

Further reading: FAQ ➲ How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

One of the purposes of the Overarching Obligations is to ensure that a party’s rights are not lost due to the inattention or lack of diligence of the opposing party.

As such, a legal practitioner’s failure to meet the Overarching Obligations may justify the imposition of a costs order against that practitioner on a higher scale than the standard basis (Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels (No 2) [2012] VSC 483 at [6]).

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130, McDonald J at [18] said:

Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny.

The parties and their legal representatives will be held to account.

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri, McDonald J was ultimately not satisfied that the defendant’s counsel had breached the Overarching Obligations.

However, the same material relevant to the suspected breach provided the basis for McDonald J to refer the defendant’s counsel to the Legal Services Commission for suspected unsatisfactory profession conduct (at [78]).

A party is not automatically responsible for his or her lawyer breaching an Overarching Obligation. It is only if the party is somehow involved in the breach, such as by giving instructions which are contrary to the Overarching Obligations, that the party also becomes responsible for the breach.

This means that, where a lawyer commits a breach of the Overarching Obligations without instructions, a remedy under s.29 should only be directed at the lawyer (Giles v Jeffrey [2016] VSCA 314 at [110]-[113]).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

What are the Overarching Obligations?

There is one Paramount Duty and a further 10 Overarching Obligations.

The Paramount Duty is a duty to the court to further the administration of justice in relation to any civil proceeding (s16).

One manifestation of this Paramount Duty is the duty of lawyers to accurately inform the court of the parameters of the case and the factual and legal issues for determination.

Inaccurate or misleading opening submissions, or submissions which do not have a proper factual or legal basis can impede the administration of justice by leading to a waste of court time and resources (Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 at [25]).

The Overarching Obligations are to:

1️⃣ Act honestly (s17)

2️⃣ Only make claims that have a proper basis (s18)

3️⃣ Only take steps to resolve or determine the dispute (s19)

4️⃣ Cooperate in the conduct of the civil proceeding (s20)

5️⃣ Not mislead or deceive (s21)

6️⃣ Use reasonable endeavours to resolve the dispute (s22)

7️⃣ Narrow the issues in dispute (s23)

8️⃣ Ensure costs are reasonable and proportionate (s24)

9️⃣ Minimise delay (s25)

🔟 Disclose the existence of documents critical to the dispute (s26).

Due to the Overarching Obligations, a party should not use generic or standard form grounds of appeal which are not adapted to the actual issues in dispute. This puts the court and the other party to the appeal to the trouble and expense of considering grounds of appeal that are not relevant (Toyota v Bendrups & Ors [2016] VSC 718 at [24]).

The Overarching Obligations do not expressly apply to proceedings commenced before the Act commenced on 1 January 2011.

But as the Supreme Court has observed, the ‘underlying principles embodied in the Act, and particularly the ‘overarching purpose’, nevertheless reflect the approach this Court has taken over many years to facilitate the utilisation of scarce court resources’ (Talacko v Talacko [2013] VSC 712 at [79]).

It has been suggested that obligations of the kind embodied in the Act have ‘always existed’ (Yara Australia Pty Ltd v Oswal [2012] VSCA 337 at [10], citing with approval Director of Consumer Affairs v Scully (No 2) [2011] VSC 239 at [21]-[22]).

For a detailed exposition of the common law principles regarding the duties that lawyers and expert witnesses owed before the commencement of the Civil Procedure Act 2010, see Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 8) [2014] VSC 567 [136]-[175]).

Who do the Overarching Obligations Apply To?

The Overarching Obligations apply to:

✅ Any person who is a party (s10(a));

✅ Any legal practitioner or other representative acting for or on behalf of a party (s10(b));

✅ Any law practice acting for or on behalf of a party (s10(c));

✅ Any person who provides assistance to a party and in doing so exercises control or influence over the proceeding, such as an insurer or litigation funder (s10(d));

✅ Expert witnesses (s10(3)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

Certification of Overarching Obligations

‍MUST be filed with the first Substantive Document in the civil proceeding filed by each party.

s. 41(2) of the Civil Procedure Act 2010 (Vic).

Section 3 defines ‘Substantive Document’ as:

(a) an originating motion;

(b) a writ that includes—

(i) a statement of claim; or

(ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought;

(c) a complaint;

(d) a defence or a notice of defence;

(e) a reply;

(f) a counterclaim;

(g) an answer to a counterclaim or a response to an answer to a counterclaim;

(h) a claim by third party notice or a response to a claim by third party notice;

(i) a claim by fourth or subsequent party notice or a response to a claim by fourth or subsequent party notice;

(j) an application brought in accordance with section 93(4)(d) of the Transport Accident Act 1986 or a response to an application brought in accordance with that section;

(k) an affidavit which commences a civil proceeding or an affidavit which is the first response of a party in a civil proceeding;

(l) a summons which commences a civil proceeding or a summons which is the first response of a party in a civil proceeding;

(m) an application which commences a civil proceeding or an application which is the first response of a party in a civil proceeding;

(n) a notice of referral under section 80 of the Land Acquisition and Compensation Act 1986 or a response to a notice of referral under that Act;

(o) a claim for contribution against another party under Part IV of the Wrongs Act 1958 or a response to a claim for contribution against another party under that Part;

(p) an application for leave to appear and defend under the Instruments Act 1958;

(q) a claim for preliminary discovery;

But does NOT include—

(r) a summons for taxation of costs;

(s) an application to a court for punishment of a person for contempt of court;

(t) an application for a rehearing under section 110 of the Magistrates’ Court Act 1989;

(u) an application under section 60(2) of the Accident Compensation Act 1985;

(v) an application under section 24 of the Second-Hand Dealers and Pawnbrokers Act 1989;

(w) an application under section 83 of the Occupational Health and Safety Act 2004;

(x) any process which commences an appeal or any process which is the first response of a party to an appeal;

(y) any process which commences proceedings under the Corporations Act or the ASIC Act or any process which is the first response of a party to proceedings under either of those Acts;

(z) any originating motion filed under Chapter III of the Rules of the Supreme Court.

Certification of Proper Basis

A party’s legal practitioner MUST make Proper Basis Certification whenever it files its first Substantive Document or when it files any subsequent Substantive Document which:

⚖️ Adds or substitutes a party;

⚖️ Makes, adds or substitutes a claim or cause of action;

⚖️ Makes, adds or substitutes a substantive defence or substantive matter by way of response or reply;

⚖️ Makes, adds or substitutes a material allegation, denial or non-admission of fact or law;

⚖️ Makes any significant amendment to a first substantive document or a subsequent substantive document (s42(1)).

Court rules may be made which provide for other circumstances in which Proper Basis Certification MUST be made, or the court may direct that certification be made in any proceeding (s42(1)).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.‍

^ Although a common practice. It is no longer necessary for a religious text to be available when swearing an Affidavit in NSW due to amendments to the Oaths Act introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011 (NSW).

Maker of the Witness Statement Required to Formally Adopt the Statement in the Witness Box

Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.

Filed Affidavit becomes evidence once it is formally 'read' in Court by Counsel seeking to rely upon the Affidavit

The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.

Credits:

This FAQ is extracted from page 201 of the Practitioner's Guide to Civil Litigation 4th edition published by the NSW Law Society (Civil Litigation Committee).

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

You have the right to remain silent … in your civil legal dispute

By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.

Whilst you might think you are progressing the matter:

➲ This is generally a mistake!‍

Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.

This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.

We recommend you don't say or write anything until you have spoken to your lawyer

It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.

When it comes to civil disputes we recommend you adopt the same position.

Our advice may be spot on when it comes to large $$ civil disputes.

Proceeding without your lawyer

When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.

Q: How then can you proceed?

A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.

Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:

1️⃣ Proceed to obtain legal advice;

2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful

3️⃣ Proceed to take steps to enforce your legal rights without any further delay.

Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.

What is the equitable defence of laches?

Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia

In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:

"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.

Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.

In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:

The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.

In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:

"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."

Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –

“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”

The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –

(i)         delay with acquiescence, where prejudice to others need not be shown; and

(ii)        more commonly, delay with prejudice to others.

However, in Fisher v Brooker Lord Neuberger said –

“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.

He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”

Trying the validity of the defence on equitable principles involves the balancing of equities.  

In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –

“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.

The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –

“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.

If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

AUSTRALIANS CAN NOW INSURE THEMSELVES AGAINST LOSS AT TRIAL

Australian claimants looking to protect themselves against a loss at trial can now insure themselves locally instead of sourcing cover from overseas

In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.

ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.

Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.

“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.

“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.

The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.

“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.

To find out more about ATE litigation insurance:

➲ Contact Us.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

The book “Pleadings without Tears: A Guide to Legal Drafting Under the Civil Procedure Rules” by William Rose [revised & updated by Roger Eastman] we have in our law firm library in its 9th edition when it was published in 2017.

More editions of this highly valued & trusted guide will no doubt ensue.

The book was originally written back in 1990 specifically to address the problem of tears being shed over mistakes being made in Pleadings.

Trust me when I say that despite all the warnings, mistakes in Pleadings continue to this day.

There are good reasons why you don't want to be the party left crying over what could have been!

What are Pleadings?

Whether you are a self-represented litigant in a Tribunal or represent by a Solicitor or a Barrister in a Court or Tribunal the "Pleadings" will be the sum total of all of the documents containing the application or claim, the defence and counterclaim, the reply or answer, and any requests for and responses to further and better particulars.

In the case of an appeal, think of the pleadings as your stated grounds of appeal within your Notice of Appeal, etc. if you get these wrong then your appeal is likely to be dismissed or struck out before you have had the chance to actually submit the details of your appeal to the appeal court.

Why are Pleadings so important in Civil Litigation?

When you hear the member/judge say the words "the problem is in the Pleadings" or words to that effect you might need to have your tissues on hand.

A great analogy is baking a cake and discovering too late that you left out a key ingredient.

There is no guarantee you will be able to amend the Pleadings to fix the problem at the last minute.

You are generally prevented from making the same claim more than once.

Your missed claim may now be subject to the statute of limitations preventing it from being commenced as it is out of time.

An error in the Pleadings can be irreversibly fatal to the outcome of the civil litigation, or substantially impact on the result or the award of costs once the legal proceedings have completed.

A failure to state valid grounds grounds of appeal within a Notice of Appeal may cause your appeal to be dismissed or stuck out, with the potential for cost orders to be made against you for the other parties legal costs (if any) incurred in responding to your incompetent or deficient Notice of Appeal.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

NSW UCPR Procedure to file a valid timely Appeal to the NSW Court of Appeal:

1️⃣ If a Notice of Intention to Appeal (NSW UCPR Form 103) is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules (NSW) 2005 NSW UCPR r 51.8; Supreme Court Act 1970 (NSW) s48(1)(a)(iv).

Note: The filing and service of a Notice of Intention to Appeal (NSW UCPR Form 103) is not an originating process and DOES NOT operate to commence proceedings in the Court of Appeal: NSW UCPR r 51.9 (3).

2️⃣ The material date in this case is the date of judgment or determination of the decision being appealed.

3️⃣ The effect of filing a Notice of Intention to Appeal (NSW UCPR Form 103) is to extend the clock from 28 days to 3 months from the material date within which a Notice of Appeal (NSW UCPR Form 105) is to be filed: NSW UCPR rr 51.6, 51.9(1)(a).

4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal (NSW UCPR Form 103) is not filed, the Notice of Appeal (NSW UCPR Form 105) itself must be filed within 28 days of the material date: NSW UCPR r 51.16(1)(c).  

5️⃣ Failure to lodge a Notice of Intention to Appeal (NSW UCPR Form 103) within the 28-day limitation requires two main steps to be taken:

➲ The Notice of Appeal (NSW UCPR Form 105) to be submitted; and

➲ An extension of time to be sought within that notice.

6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:

➲ Explanation for the delay;

➲ No prejudice was suffered by the respondent due to the delay;

➲ The application has a real prospect of success;

➲ That the relief sought is within the Court’s jurisdiction;

➲ A compartmentalised outline of the issues/grounds of appeal to be raised.

7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣  above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services [2018] NSWCA 295, [5]-[7], [9], [17]-[18].

8️⃣ At the same time or before the filing of the Notice of Appeal (NSW UCPR Form 105) a Summons Seeking Leave to Appeal (NSW UCPR Form 104), if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: NSW UCPR rr 51.9, 51.10.

Note: Where the subject matter of an appeal is not a monetary sum or the matter at issue amounts to the value of less than $100,000, parties must seek leave to appeal: s 101(2)(r) Supreme Court Act 1970 (NSW).

9️⃣ A copy of the Notice of Intention to Appeal (NSW UCPR Form 103) +/or Notice of Appeal (NSW UCPR Form 105) + Summons Seeking Leave to Appeal (NSW UCPR Form 104) (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: NSW UCPR r 51.42.

🔟 If a Summons Seeking Leave to Appeal (NSW UCPR Form 104) needs to be filed, it can include the request for an extension of time (if applicable): NSW UCPR r 51.10(3).

Court Published Resources:

‍Practice Note No. SC CA 1

Common Procedural and Preliminary Issues arising in Court of Appeal Proceedings

Credits:

The above overview of the NSW UCPR Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠

Minor updates + Court Published Resources added by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Application for a NSW Court appointed Referral for Pro Bono [Free] Legal Assistance

Procedure

1️⃣ An application for a Court appointed Referral for Legal Assistance must be made by a Notice of Motion setting out the order sought from the Court that assistance be granted: Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 18.3(1)(f) (‘UCPR’).

A blank [Form 20] Notice of Motion can be downloaded here.

2️⃣ Approval depends on whether the Court is satisfied that referral for legal assistance is in the interests of the administration of justice and whether the applicant is otherwise unable to obtain assistance: UCPR r 7.33(2).

3️⃣ The matters the Court may take into account for this purpose include:

⚖️ The means of the applicant;

⚖️ The applicant’s capacity to obtain legal assistance on his/her own;

⚖️ The nature and complexity of the proceedings: UCPR r 7.36(2); and

⚖️ Any other matter that the court considers appropriate.

UCPR r 7.36 is annexed in its entirety to this FAQ (refer below).

4️⃣ There must be evidence that the application has merit, best in the form of an affidavit in support of the application: Bodenstein v Voukelatos [2010] NSWSC 249, [2].

5️⃣ Should the application be successful, the referral will be made to the Pro Bono Panel of solicitors and barristers maintained by the Registrar of the Supreme Court for the very purpose of the legal assistance scheme: UCPR r 7.35; MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846, [9] (‘MM International’).

Overarching Principles to be met by the Application

6️⃣ The  application would be drafted most effectively following the matters set out in r 7.36(2): MM International, [11].

7️⃣ The interests of the administration of justice demand that complex matters be disposed of efficiently, which is best achieved through legal assistance: MM International, [17].

8️⃣ The  interests  of  the  administration  of  justice  also  demand that  the scheme  not  be exploited,  and  so  the  applicant  must  show  that  there  is  a  real  basis for  the  scheme  being productive of benefit to the applicant: MM International, [18].

9️⃣ However, the application will still be successful even if the prospects of obtaining relief from the court are slim: MM International, [19].

Grounds for Application

🔟 Pursuant to r  7.36(2)(a), if the applicant can show limited means, for example:

✅ Rented accommodation;

✅ No other assets; and

✅ An unprofitable  business;

This first matter will be satisfied: MM International, [12].

1️⃣1️⃣ Pursuant to r 7.36(2)(b), the applicant must show an inability to obtain legal assistance, whether or not due to an inability to afford to pay a solicitor: MM International, [13].

1️⃣2️⃣ Even if an applicant has previously been able to obtain legal assistance for a different matter, that fact will not prejudice the application: MM International, [14].

1️⃣3️⃣ It should also be noted that previous representation for a different matter is not the same as assistance under a previous Court referral, the latter being a bar to an application: UCPR r 7.36(2A); MM International, [16]; Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037, [16]-[17](‘Clemett’).

1️⃣4️⃣ Pursuant to r 7.36(2)(c), the matter for which the applicant is seeking assistance must have a degree of complexity, namely an identified question of law, for example:

➲ An issue with respect to a statute, noting that without legal assistance, identifying such a question in itself would pose difficulties to an applicant: MM International, [15]; c.f. Clemett, [14].

UCPR r 7.36

7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2) For the purposes of subrule (1), the court may take into account—

(a) the means of the litigant, and

(b) the capacity of the litigant to obtain legal assistance outside the scheme, and

(c) the nature and complexity of the proceedings, and

(d) any other matter that the court considers appropriate.

(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

Credits:

The above summary of the procedure to apply for a Court appointed Referral for Legal Assistance was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How do I ensure I get the pre-litigation steps right?

If you have a written agreement with the Debtor/standard terms of trade

The identity of the Debtor and their address for service (incl. email +/or fax) should already be clearly specified in the agreement, or provided by the Debtor as part of your standard business processes.

We also assume that the terms of your agreement will provide permission to serve notices via email or fax (if required).

If there is no written agreement

You will need to consider whether you already know the actual identity of the Debtor/Defendant and their address for notices/Service.

The Debtor/Defendant may not be the person with whom you made the original agreement, or the person who actually published the defamatory statement.

The person you might consider is the Debtor/Defendant may have been acting/dealing as an agent or employee of another person, the actual owner/s of the business, a sole trader, partnership, unincorporated association, company, etc.

If you only have the name of the business, you can start by conducting a free ASIC business names index + business names holder organisation/person searches to determine the owner of the business name, followed by a paid ASIC search to determine a valid + current address for Service.

If the Debtor/Defendant is a Company

Before sending a Letter of Demand/Statutory Demand/Concerns Notice to a Debtor company, we strongly recommend you conduct a paid current ASIC Company Search (min. cost $9) to confirm that:

✅ The Debtor/Defendant company is not currently under administration/in liquidation; and to

✅ Ascertain the companies current registered office address for service.

Legal Assistance

If you have any questions regarding the above please contact our legal team to discuss.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Prior to deciding whether to commence Legal Proceedings

Laches + Limitation Periods

Please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?

Litigation Risk

We strongly recommend you obtain legal advice + assistance regarding:

✅ Determining whether the Debtor has the potential financial means to ultimately pay the debt + interest + legal costs should you be successful in your claim;

✅ If the Debtor is an individual, conducting a Bankruptcy Search;

✅ If the Debtor is a company, conducting a Bankruptcy Search;

✅ Determining whether the Debtor has been or is currently involved in other legal proceedings;

✅ The legal merits of your claim; and

✅ Ensuring you understand that it is extremely rare to recover your legal costs in litigation; and

✅ The inherent Litigation Risk of potential liability for the Debtor's legal costs in commencing legal proceedings in a Court, as opposed to a Tribunal;

✅ The cost + availability of litigation funding, +/or litigation insurance.

Valid + Effective Service

The requirements for valid + effective Service of a Filed Application or Statement of Claim vary depending on the relevant Court or Tribunal.

We strongly recommend you obtain legal advice + assistance regarding:

✅ The selection of the appropriate Court or Tribunal to bring suit; as well as

✅ The drafting of the required Application/Statement of Claim; and

✅ The compliant Service of same on the Debtor once legal proceedings have been filed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.