Do you desire to carry through with your work so that your matters run as smoothly as possible…like clockwork? Its true we are all faced with circumstances beyond our control when it comes to adhering to a reasonable timetable or progressing the matter in a timely fashion, as the case may be delayed for reasons beyond our control. However, each of us has control over our individual contribution in the progression of a matter, to make it as successful and polished as possible. Let me provide you with some assistance!
I was appearing with an SC at the Supreme Court of NSW in civil claim cases for victims of institutional abuse recently. We were representing the Plaintiffs (victims) who had issued subpoenas to the Defendants and their subsidiaries. The Defendants and their subsidiaries produced documents, however, they produced the documents to the Defendant’s solicitors, who unilaterally redacted names from the documents, which then contained initials only, due to an argument of irrelevance and confidentiality. After this process, the redacted documents were produced to the Court, in answer to the subpoenas.
The Plaintiff’s names had been anonymised in 2014 by consent orders. However, the Defendants had recently issued subpoenas to the Plaintiff’s employers (spanning 30+ year – who had no knowledge of the abuse) and others. The subpoenas included the full name of the Plaintiff, which was understandable for compliance with the subpoena, however, the subpoena was issued without leave of the Court, following anonymisation. Even though the consent orders to anonymise were made in 2014, his Honour enquired of the Defendants what was the power to make those consent orders? This was not answered.
During the 3 days of argument, his Honour continually referred the Defendant solicitors to the UCPR Part 33 (subpoenas), which provide the ‘basics‘ for handling all aspects of subpoenas, including the necessary processes. The Supreme Court Practice Notes (General 18 & 19) would also need consideration when such issues arise as to the proper processes and orders requested.
However, the 3 days of Court proceedings, reinforced to me the necessity for all lawyers to go back to basics or foundations when running matters, so that matters are progressed like clockwork and polished, as practitioners don’t have the liberty to invent processes.
Some questions that would assist lawyers in running their matters, regardless of the area of law or the jurisdiction:
- What is the power for what I want to do in the matter or check what the other side is doing, is it permitted?
- What is the power, or does the Court have the power, to make the orders I seek? If so, what is the power? If there is no power, then the Court can’t make the orders you seek.
- What are the processes for X (whatever the process is that you wish to do in a matter)?
- What do the Rules, Practice Notes and/or Regulations say about a process?
- Do I follow the processes as set out in Rules/Regs or Practice Notes or become creative and see what I can get away with?
Orders were made in the Plaintiff’s favour, including favourable cost orders. His Honour gave lengthy ex tempe reasons, which will assist these particular Plaintiff’s case and all other Plaintiff’s who follow……….. all as a result of the Defendants not going back to basics and relying upon foundational processes, which resulted in their creative inventions, without heeding those already set down in Rules, Regulations and Practice Notes.
When I taught Civil Practice and Procedure at University of Sydney, I would inform the students at the outset, if they learned nothing from else from this course, but one thing……..it’s absolutely necessary to rely upon and know where to find the requisite Rules, Regulations and Practice Notes, in any jurisdiction , in any area of law, as the basis or foundation for their practices. It makes for greater success and a polished ‘performance‘.
Please contact me on (02) 9336 5399 or louise.mathias@ sydneybarrister.net.au if you require a barrister who practices with foundational basics, which includes quality, reliable service.