Practice Directions

Question 1

PD 1 of 2007 – Freezing Orders / Mareva Orders

Answer 1

See Vaughan v Bongiorno, and UCPR r 260A-D

Applies where danger judgment will be wholly or partly unsatisfied because judgment debtor absconds or removes assets from the jurisdiction.

Order should exclude dealing with assets for legitimate purposes (ordinary living expenses, reasonable legal expenses, ordinary course of respondent’s business, obligations to third parties).

Affidavit must contain (a) information about judgment, basis for substantive relief, amount of claim, if made ex parte, any information about defence, (b) nature of respondent’s assets, (c) matters in r 260D, (d) identify any person other than respondent who may be impacted by order

1. Respondent to freezing order may be the person alleged to be liable (in substantive proceeding) or a third party.
2. The minimum requirements for a freezing order are contained at UCPR rule 260D(4): a court may make an order if it is satisfied….

(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

3. Duration of freezing order should be limited to return date of application
4. Value of assets under freezing order should not exceed likely maximum of applicant’s claim (including interest and costs)
5. Order should exclude assets for legitimate purposes including (a) ordinary living expenses, (b) paying of reasonable legal expenses (c) dealing in the ordinary and proper course of their business
6. Court in Queensland may make prospective freezing orders (before cause of action accrued); including in respect of foreign proceedings.
7. Affidavit in support must:
   (a) Detail judgment if one received, otherwise:
   (i) Basis of the claim, the amount of the claim, and the applicant’s knowledge of any possible defence
   (b) Nature and value of respondent’s assets
   (c) Identity of any person other than respondent who may be affected, and how.

See also Vaughan v Bonjiorno

● Pro-forma order in Appendix
● Respondent can be a third party in possession/control of assets
● Value of assets cannot exceed value of claim
● Onus on applicant to satisfy court order should be continued / renewed
● Order should exclude dealing with assets for legitimate purposes (e.g. ordinary living expenses, reasonable legal expenses, business, obligations to third parties under contract.
● Ancillary orders: order for disclosure of assets
Affidavit
● Info about judgment or basis for substantive relief, amount claimed and possible defences if ex parte
● Nature of respondents assets (in/out Australia)
● Matters in r 260D
● Identity of any other person who may be impacted by order and how

Question 2

PD 2 of 2007 – Anton Piller Orders

Answer 2

See rules 261 – 261F UCPR for ‘search orders’

1. Search party must include independent solicitor to supervise search, and solicitors representing the applicant. Search party should not include the applicant themselves, or the applicant’s directors/officers etc.
2. Search party should be as small as possible
3. Affidavit in support of application for search order should:
   (a) Detail what is sought;
   (b) Address of search area including whether private or business premises
   (c) Why order is sought including whether possibility things will be destroyed
   (d) Prejudice loss or damage to be suffered if order is not made
   (e) Contact details of the independent solicitor
   (f) Identification of persons likely to be on property who may be vulnerable
4. Independent solicitor’s responsibilities include:
   (a) Services of court documents; explaining orders including their right to obtain legal representation; supervising the carrying out of the order; taking custody of items; submitted a report to the court; attending hearing on return date of application
5. Ordinarily – applicant not permitted to inspect items removed from the premises without leave
6. Ordinarily – search order should be served between 9am and 2 pm to permit respondent time to obtain legal advice (unless circumstances permit otherwise)
7. Search orders must take into account any vulnerabilities
8. Period in which respondent is restrained from information other people about the search order should be as short as possible
9. Undertakings must be made by the solicitor and independent solicitor – AS A CONDITION of the making of the search order
10. Applicant may be required to provide security
11. Search order is subject to court’s adjudication of any claim of privilege against self-incrimination

● Pro-forma order attached to PD
● Search party must include independent solicitor
● Search party as small as possible
● Order must make provision for vulnerable persons
● Undertakings required
Affidavit in support must include:
● Description / categories of things relating to search order
● Address/location
● Why order sought? Explain why there is a risk.
● Prejudice to applicant if order not made?
● Details of independent solicitor
● ID of anyone likely to be on the search premises
Independent computer expert
● May be necessary (can be appointed by court and will be required to give undertakings)
Independent solicitor
● Serves order, supervises search, offers to explain to R the order and explain they may get legal advice, must list all items removed, prepare report for court, make available all things removed
● Order must be served between 9am and 2pm M - F to enable R opportunity to seek legal advice (unless exceptional circs apply)
Applicant
● Cannot inspect removed items without leave
● May be required to provide security for undertaking as to damages
Applicant’s solicitor
● Can attend search
● Must give undertaking not to disclose to applicant any information from the search

Question 3

PD 11 of 2012 – Supervised Case List

Answer 3

Consider rule 5, part 4 chapter 9 (ADR Process), part 5 chapter 9 (offers to settle)

1. Supervision designed to maximise utilisation of time allocated to the hearing of cases (putting focus on matters genuinely in dispute; ensuring evidence is presented as efficiently as possible; prospects of settlement are considered; ensuring case is fully/sufficiently prepared before trial dates are allocated
2. Matters eligible for list if hearing will take more than 5 days, and case imposed greater than normal demand on resources (length of time, complexity of issues, multiplicity of parties)
3. At first reviews, parties can apply to vary operation of UCPR for things such as disclosure, and should advise whether ADR now appropriate
4. Reviews should focus on the parties, pleadings, disclosure, ADR, whether any matters should be resolved early; expert evidence; dates of further reviews. Adequacy of pleadings should be addressed early
5. Parties should try to reach resolution on whether joint expert suitable
6. Prior to a review, parties should confer on orders, communicate with judge’s associate, and prepare drafts. Interlocutory relief will not be determined at the reviews.
7. Before a request for trial date is given, parties should confirm to judge:
   (a) Whether any additional parties need to be added; whether pleadings are adequate;
8. Before trial date request filed parties to seek direction from judge about:
   (a) Trial bundle; whether any documents in bundle accepted without objection or with a statement going to their truth; what evidence is given orally or by affidavit; extent to which trial will be conducted electronically; trial plan
9. No less than 21 before trial commence, parties to make arrangements with associate about
   (a) Working copies of pleadings, reports, expert material, trial plan;
   (b) Whether trial being run electronically;
   (c) How expert evidence will be heard (by topic, concurrently, in conclave)

● Placed on list if (a) party estimates trial/hearing more than 5 days; or (b) case will impose greater than normal demand on resources due to time, complexity etc.
● Referred by party, Registry or Judge.
● Must complete SCL questionnaire (Att. 3).
● FIRST review: disclosure, doc management and ADR (ADR decision by 2nd review)
● EARLY reviews: joinder, pleading issues and doc.

● Must confer at least 1 week before review + provide draft directions if possible
● Trial date = only once logistics are determined.
● Once listed for trial = no later than 21 days before trial must organise working copy for HH, conduct of trial , experts, witness special requirements (e.g. telephone)

Question 4

SC PD 20 of 2012 - Direct Access Briefing

Answer 4

1. Barrister must carefully consider what is involved in the matter [number of witnesses, documents, evidence] and ensure their ability to comply with rules 15 and 17 of BAQ;
2. Comply with r 24B and obtained signed acknowledgement from client
3. Produce a letter confirming compliance with r 24B and this practice direction, and file copy with the Registry and the BAQ

#########
DUE CONSIDERATION + DOCUMENT (R 24B, WRITTEN ACKNOWLEDGMENT & LSC COMPLAINTS) + FILE & COPY TO BAQ

Para [2]: Barrister expected to:
● give proper consideration to case - including evidence, witnesses, documents, way evidence given, likely steps
● MUST be satisfied: able to properly prepare (rr 15 & 17) and able to take all appropriate action on clients behalf in timely fashion
● If not satisfied = refuse brief
Para [3]: Barrister who accepts must:
● Comply with r 24B + inform client of rr 15 & 17, the fact may require solicitor retained, any disadvantage, fair description of advocacy experience + SIGNED written acknowledgment from client
● Cause document to be prepared outlining matters in r 24B + written acknowledgement + outlining have informed client of LSC complaints process
● Must file document in Registry + deliver copy to Chief Executive of BAQ.

Question 5

List of practice directions

Answer 5

PD 1 of 2007 - Freezing Orders / Mareva Orders

PD 2 of 2007 - Search orders (Anton Pillar)

PD 11 of 2012 - Supervised Case List

PD 20 of 2012 - Direct Access Briefing

PD 1 of 2023 - Commercial List

Question 6

PD 1 of 2023 - Commercial List

Answer 6

Commercial List is appropriate for matters that are “of a general commercial character or generally arise out of trade and commerce including e-commerce”.

Matters should be referred to the Brisbane Registry.

NOT NECESSARY that the matter have an estimate trial time of 5 days of less, the following are suitable:

1. matters that require urgent resolution may be managed by a ‘Fast Track’ procedure
2. matters with an expected trial time of no more than five days, including submissions
3. matters with an expected trial time of longer than five days.

NOT NECESSARY to bring application for matter to be placed on Commercial list: simply email associate to commercial judge and other parties. Other parties’ views no longer necessary.

First review to be held within 5 business days to make timetabling orders.
Parties should use electronic document management.

Practice direction expressly permits unilateral correspondence with the court regarding programming matters provided not contentious and other parties copied into correspondence.

Question 7

OLD - DISCARD AND IGNORE

PD 3 of 2002 – Commercial List

Answer 7

OLD DISCARD AND IGNORE

1. Proceedings eligible for the commercial list if they
   (a) Involve issues of a general commercial character, or arise out of trade and commerce;
   (i) Including construction of contract, insurance, banking, IP, takeovers, export/import, exploitation of natural resources, operation of markets
   (b) Estimate trial time is five (5) days or less
2. Application for the list must be made only
   (a) After claim/originating application served;
   (b) Defendant’s given their views about the listing;
   (c) With an application list supporting statement
3. The application supported by statement should comply with the schedule and detail the nature of the dispute, include a statement about the issues including the timeframe and whether any urgency
   (a) Application should include draft orders

● Commercial character or arising from trade/commerce
● Must apply to Commercial List Judge or SJA
● Can only apply after claim/OA served, views of other side have been sought and only after application has been served at least 2 business days notice
● Prior to filing application, applicant solicitor must contact CL Manager or CLJ Associate to get day/time
● Application must include listing statement (Sch A)
● Applicant prepare draft order and emailed to CL Assoc. no later than 24 hours before hearing (consent position should be outlined)
Appeal
● Can apply for expedited appeal + include affidavit with brief statement of urgency, issues that arise, estimate and copy of judgement below.