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Court Procedures in Sydney

Court Procedures in Sydney

Understanding court procedures can be confusing, but being prepared is key. Dressing professionally, bringing the necessary documents, and behaving respectfully In Sydney, court proceedings follow a structured process, from initial appearance to hearings. This article will break down all these areas of a court appearance in more depth. Trust Jameson Law for expert legal representation—they’re dedicated to fighting for your rights and will help you navigate through all the processes of your next appearance in court. Remember, we’re in it to win it! What should I wear while attending court? When attending court in Australia, it’s essential to dress respectfully and professionally. Opt for neat, conservative attire such as business attire or smart casual clothing. Men can wear a suit or dress pants with a collared shirt, while women can choose a pantsuit, dress, or skirt with a blouse. Avoid wearing clothing that is too casual, revealing, or flashy, as it may not be appropriate for the solemn atmosphere of the courtroom. Closed-toe shoes are preferable, and accessories should be kept minimal. Additionally, as the Federal Circuit and Family Court of Australia points out, you should make sure to take off your sunglasses, hats or caps before you enter the courtroom. Being on time to court is extremely important. If you are late to your hearing or committal proceedings, If the Judge decides, you could be penalised. The maximum penalty that you face could be severe.   In a nutshell… Remember, your appearance reflects your respect for the court, so dressing appropriately shows that you take the proceedings seriously. Procedures to follow Addressing the Judge or Judicial Registrar: In Sydney courts, it’s important to address the Judge as “Your Honour” when speaking to them. For Judicial Registrars, use “Registrar” unless told otherwise. For example, you might say “Yes, your Honour” when addressing a Judge and “Yes, Registrar” when speaking to a Judicial Registrar. Courtroom Etiquette: As the Federal Court of Australia writes about here, Upon entering or leaving a courtroom with a Judge or Judicial Registrar present, it’s customary to bow your head as a sign of respect. This is something you should do in all courts, whether it be a family court, federal court or any other court of New South Wales. Court Proceedings: When your case is called, approach the Bar Table at the front of the courtroom and state your name to the Judge or Judicial Registrar. They will inquire about your claim and may set a timetable for the next steps, such as submitting evidence and pleadings. It’s a good idea to discuss timelines with the other party beforehand. Rule 5.04 outlines the types of orders a Judge may issue. By following these procedures, you ensure smooth communication and respectful conduct in Sydney courts. Contact Jameson Law today for a consultation. Whether it be a question about a court procedure, Maximum Penalties or how to move a hearing date, Jameson Law is a one-stop shop for all your legal needs! What should I Bring to Court? When heading to court in Sydney, it’s crucial to be prepared. Here’s what you should bring: Legal Documents: Bring any relevant paperwork related to your case, including court orders, summons, or legal agreements. It is important to bring 3 sets of documents with you to the court, one set for you, one set for the other party and another set for the judge or registrar. This ensures that court events go as smoothly as possible! Identification: Carry a valid form of identification, such as a driver’s license or passport, to verify your identity if needed. Notes and Evidence: Take notes on key points you want to remember and bring any evidence or documents supporting your case. Contact Information: Have contact details for your lawyer, if you have one, and any witnesses or other parties involved in the case. Pen and Paper: Bring a pen and notebook to jot down important information during the proceedings. A good lawyer: A good lawyer can make all the difference in court. The expert lawyers at Jameson Law are perfect examples of this. Before you get to the courtroom, they will make you understand in depth what is going on. having your understanding of what would happen if you plead guilty, what the maximum penalties might be, or things like how to move a hearing date to make proceedings move as smoothly as possible. Patience and Respect: Lastly, bring patience and a respectful attitude. Court proceedings can be lengthy and sometimes stressful, so maintaining composure and showing respect for the court and others involved is essential for a smooth process. Importance of a good lawyer during court proceedings In court proceedings, a proficient lawyer is essential, and Jameson Law stands out as an expert law firm in Sydney. A skilled lawyer, like those at Jameson Law, provides invaluable guidance, strategic representation, and unwavering support. With their expertise, they navigate complex legal processes, protect your rights, and strive for favourable outcomes. Jameson Law offers personalized attention, ensuring you understand your case and make informed decisions. Their dedication to achieving the best results means you have a strong ally in the courtroom, advocating fiercely for your interests. Trusting Jameson Law ensures you have top-tier legal representation when you need it most. Court behaviour In Sydney courts, proper behaviour is essential. Remember to switch off your mobile phone and nod respectfully when entering or leaving the room. Stand when addressing the judge or when they speak to you, and speak clearly without interrupting others. Be polite to everyone, including the judge or registrar and other parties involved. Take notes to stay organized and track important points. By following these guidelines, you demonstrate respect for the court and ensure smooth proceedings during your time in Sydney courtrooms. Court Appearances in Local Courts In Sydney, court appearances follow a structured process. Initially, when your case is brought before a magistrate, the charge will be recorded, and the final decision may be postponed to another date. If you plead guilty, sentencing might occur immediately for minor charges, but for more serious offences, the magistrate may request a pre-sentence report. If granted bail, you’ll receive a bail notice detailing your court appearance. Upon arrival, check the court lists for your assigned courtroom and be present when your case is called to avoid repercussions, especially if you’re on bail. Between initial appearances and hearings, there may be several ‘callovers’ or ‘mentions’ to schedule the case within the court timetable. Pleas of guilty or not guilty can be lodged during these appearances. Guilty pleas may lead to immediate sentencing or a later date set for sentencing. Not guilty pleas result

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Remedies Law – preparation guide

 RESCISSION After running an online clothing store for two months, Miranda decided that it wasn’t for her. She sold it to a young woman named Bonnie, telling her that the business typically made $25,000 per week. Since purchasing the store, Bonnie has struggled to make $10,000 each week, despite working more hours than Miranda ever did and cutting down on external costs as much as possible. Bonnie has spoken to one of Miranda’s former workers and discovered that the typical weekly sales figure had previously actually been around $7,000, and no higher than $9,000. Bonnie has re-read the contract but there is no clause specifying the turnover. The contract contains a term that it is the whole contract and that no oral statements have been relied upon. Bonnie has become distressed and this has led to a lackluster (unconvincing) approach to her management of the online store. There have been no updates to the website in the past fortnight, and this has severely damaged the goodwill in an industry that relies on fast pace and regular change. Advise Bonnie whether she can set the contract aside and get her money back.   ISSUE The question raises the issue of whether Bonnie can set the contract aside and get her money back.   PRINCIPLES Rescission applies to cases in which a party to a contract, upon breach by the other party, elects to treats the contract as no longer binding on him/her: Shevill v Builders Licensing Board (1982). The remedy of rescission operates retrospectively and restores both parties to their original positions: Cheese v Thomas [1994]. A party who is entitled to rescind a voidable contract must either elect to affirm the contract or elect to void (rescind) the contract: Immer (No145) Pty Ltd v Uniting Church in Australia Property Trust (1992). The remedy of rescission requires three elements to be satisfied: The presence of a vitiating factor in the formation of the contract; Generally, rescission is based upon vitiating factors; some element which makes it unconscionable for the contract to continue or to be in force. Vitiating factors include: Vitiating Factor Reference Effect Misrepresentation Covell 5.5 A contract can be voidable for misrepresentation if the representor has made a misrepresentation of fact that induced the representee to enter into the contract. Common Law –    Common law has only afforded relief for fraudulent misrepresentation. –    In order to sustain an action for deceit, there must be proof of fraud and fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or reckless (careless whether it is true): Derry v Peek (1889) Equity –    In equity, you don’t have to prove that the misrepresentation is fraudulent. All you have to show is that it is false. –    The leading case is Redgrave v Hurd (1881). In this case, the court set out the requirements for misrepresentation in equity and made it clear that innocent misrepresentation will constitute grounds for recission and there was no necessary for intention to deceive, whereas common law in order to constitute fraud the misrepresentation must be made with the knowledge of falsity and recklessly in whether it is true Mistake Covell 5.19 Three categories of mistake: Common –    Here, both parties share the same mistake Mutual –       Here, both parties are mistaken, but their respective mistakes are not the same. – Unilateral – Here, only one of the parties is mistaken. Duress Covell 5.30 A transaction is voidable for duress if it was induced by the application of illegitimate pressure. Duress can be to the person (physical threat or kidnapping or wrongful detention), to goods (where actual or threatened damage is made in regard to the goods of someone) and economic duress (if D threats to breach a contract then that is economic duress) Undue influence Covell 5.40 Arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy of which the ascendant person then takes unfair advantage: Roayl Bank of Scotland plc v Etridge (No2) [2002] Unconscionable dealing Covell 5.51 Extends to circumstances where a party to a transaction was under a special disability in dealing with another with the consequence that there was an absence of any reasonable degree of equality between then and that the disability was evident to the stronger party to make it unfair that he procure or accept the weaker party’s assent to the impugned transaction: Commercial Bank of Australia Ltd v Amadio (1983) An election to rescind the contract; and The party with the right to rescind must make a choice to elect between rescission and affirmation of the contract. These are mutually exclusive choices: Immer (No145) P/L v Uniting Church in Australia Property Trust (1992) Restituio in integrum, the restoration of both parties to their respective pre-contractual positions The objective of rescission is to restore the parties to their original position: Brown v Smitt (1924). However, sometimes it is not possible to place the parties to their position because of change of circumstances. For example: Alati v Kruger (1955) Facts K purchased business from A Before K bought it he examined accounts and looked at profits and loss and number of customers K did not know that A had cooked the books, A had reconstructed a set of books which were fraudulent Unfortunately, the inevitable happens K relaises that his business is not profitable and lost money heavily K applies to court to have the contract rescinded on the basis of misrepresentation Before the matter came to court, K had to close the business and sell of his stocks and the landlord took possession of premise because K could not keep up with payments Procedural History At first instance it was held that K was entitled for rescission on the ground of fraudulent misrepresentation A appealed to high Court   Outcome It was held that where a contract of sale is rescinded the P must return to D

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Court Injunctions

INJUNCTIONS   1          Nature of injunctions   1.1 Definition:  An injunction is an order of the court which either prohibits/forbids a person or legal entity from performing an action or requires the person or legal entity to do something. Purpose: To protect the rights of a person or legal entity in situations where the infringement of these rights would have consequences which could not be remedied either by damages or other remedy. Discretion: The court has absolute discretion in regard to the granting of an injunction.  This discretion will only be exercised if: it is just and  convenient that the injunction be granted there are no other remedies available all the circumstances of the case have been considered.         1.2          Classification of Injunctions   Injunctions may be classified according to their purpose and duration. Purpose:              prohibitory (prevents something being done) or negative mandatory (requires something to be done) or positive quia timet – which prohibits the commission of threatened action. Duration:             interim: temporary interlocutory: until the hearing of the matter has been completed final/perpetual Injunctions may also be ex parte – i.e. heard in the absence of the party against whom the injunction is sought. Therefore, it is possible to have an interim ex parte quia timet interim injunction.   3 Other types of injunction   Mareva order or injunction: This was first granted to prevent a debtor from removing assets out of the jurisdiction of the court ( Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep. 509; {1980} 1 All ER 213) and is commonly used to prevent a defendant from dealing with property before the final hearing of a matter. As with all prohibitory injunctions, the purpose of a Mareva injunction is to preserve the status quo between the parties. Anton Piller order was initially used to protect intellectual property, such as copyright, by preventing the distribution of illegally copied material (Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55; [1976] 1 All ER 779). Today its use has been extended to include the protection of documents with evidentiary value from being destroyed before the final hearing of a matter. Anti-suit injunctions to restrain the pursuit of proceedings in an overseas court Orders directing a party to litigation in Australia from pursuing simultaneously, or at all, litigation about the same or a related issue in an overseas jurisdiction: CSR  & CSR America Inc v Cigna Insurance Australia  & ors (1996-7) 189 CLR 345.     Uses of injunctions An injunction can either be given as final relief so that a person is restrained permanently or the injunction can be interim or temporary or interlocutory, restraining action and preserving the status quo until the determination by the Court of the issues between the parties.  Injunctions can be granted on an ex parte basis where the court is satisfied that irreparable harm may arise in the short term if such injunction is not granted immediately. Ex parte and other interlocutory injunctions are not normally granted unless the plaintiff gives an undertaking to pay for any damage suffered by the defendant by the granting of the interlocutory relief should a final injunction not be granted.  Further, a Mareva or Anton Piller order may be granted on an interlocutory basis to assist in the retention of the status quo pending determination of the proceedings.   Jurisdiction 3.1 Historically, the injunction developed in equity as part of the Lord Chancellor’s Court of Chancery. The objective of the remedy was to relieve subjects from the harshness of the common law, or at least the deficiencies in the remedies it provided.  In many situations the only common law remedy was (and still is) monetary damages. The power that was once with the Court of Chancery now resides in the statutes governing court jurisdiction, notably the Supreme Court Act 1970, especially the provisions that derive from the English Judicature Act. In NSW, the power to grant an injunction comes from Section 66, Supreme Court Act 1970 (NSW).   Although injunctions may now be granted in any Division of the Supreme Court as a result of the adoption of the Judicature System, the power to grant injunctions is not for this reason extended beyond that which a court of equity possessed prior to the adoption of the Judicature Acts: North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30. The most important power is in s 66 of the Supreme Court Act, which states: (1)          The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury. (2)          Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases. (3)          The Court may restrain any threatened or apprehended waste or trespass pursuant to this section: (a)          whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and (b)          whether the estate claimed by any party is legal or equitable.   (4)          The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do. However, there may be powers in other statutes to award injunctions in a broad or limited capacity. Under the specific statutory injunction powers (for instance, section 80 of the Trade Practices Act and section 1324 of the Corporations Act) the courts grant injunctions set out in specific legislation.  However, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Gaudron, McHugh, Gummow and Callinan JJ  held that S 66 of the Supreme Court Act, and a similar provision in s 23 of the Federal Court

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Declarations, Rectification and Delivery Up

Key Cases:   Declarations Australian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 Foster v Jododex Aust. Pty Ltd (1972) 127 CLR 421 Liverpool & London & Globe Insurance Co Ltd v J W Deaves Pty Ltd [1971] 2 NSWLR 131 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Boyce v Paddington Borough Council [1903] 1 Ch 109  Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 117 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 Ruddock v Vardarlis [2001] FCA 1329 Sankey v Whitlam (1978) 142 CLR 1 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Nelson v Nelson (1995) 184 CLR 538 Rectification Slee v Warke (1949) 86 CLR 271 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Re Butlin’s Settlement Trusts [1976] Ch 251 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Delivery up Bromley v Holland (1802) 7 Ves J 3; 32 ER 2 Peake v Highfield (1826) 1 Russ 559; 38 ER 216 DECLARATIONS 1.1 A declaration is an order of the court, which declares a legal or equitable conclusion from a determined state of facts. It enunciates the rights as between the parties.  For example whether the defendant holds his or her property upon trust or whether the plaintiff has validly terminated a contract.  Declarations are referred to as “declaratory relief.” The learned authors of Meagher Gummow & Lehane, Equity: Doctrines and Remedies (3rd ed, 1992), [1915] state in their extra-curial capacity that “[t]here is virtually no situation in respect of which a declaration cannot be made.”  A declaration can be a useful means of declaring legal rights either alone or in conjunction with other relief.   However, a declaration will only bind the parties to the proceedings; Australian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119, 133-134. By their very nature, declarations are permanent statements of rights. They cannot be temporary. 1.2 There are four essential elements that must be established in order to obtain a declaration: Has the court jurisdiction? Has the plaintiff standing (locus standii) to bring the proceedings? Has the plaintiff established the facts necessary for the court to declare the legal conclusion? Are there any discretionary grounds for refusing the declaration? 1.3          Jurisdiction   Historically the Court of Chancery could not make a declaration in the absence of granting some other form of relief (‘naked’ declaratory relief) at least in its original jurisdiction: Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 568 (Bankes LJ). The position was different in the supervisory jurisdiction where relief was sought against the Crown.   Historically the Crown could not be the subject of a coercive order so a declaration was the only way of resolving legal issues where the Crown was a party: Dyson v The Attorney-General [1911] 1 KB 410.   Such restrictions do not exist today as the Crown is by force of statute treated in a similar manner as if it were an ordinary citizen: see Judiciary Act 1903 (Cth) and Crown Proceedings Act 1988 (NSW). The Chancery Act 1850 (13 & 14 Vic c 35) gave the court limited powers to grant declarations in the absence of other relief.   These were expanded by the Chancery Procedure Act 1852 (15 & 16 Vic c 86) of which section 50 purported to give a board power to grant ‘naked’ declarations similar to the present day power in NSW.  The 1852 Act was restrictively interpreted so that a declaration without consequential relief could only be granted in situations where that consequential relief could have been granted but was not sought.   Thus no declaration could be made if other equitable relief was not available: Rooke v Lord Kensington (1856) 2 K & J 753; 69 ER 986. In the United Kingdom the position was resolved by the Judicature Act 1873 which today by effect of the RSC O 15 r 7 permit ‘naked’ injunctions. In NSW the right to grant a declaration was restrictively interpreted.   It was not until the decision in Foster v Jododex Aust. Pty Ltd (1972) 127 CLR 421 that the High Court gave a broad interpretation to the legislation that ‘naked’ declarations were permitted. The adoption of the Judicature system in NSW by the Supreme Court Act 1970 (NSW) brought NSW in to line with the United Kingdom so that there is a plenary power to grant declarations conferred by section 75.  Thus the court may grant declaratory relief in all cases it considers appropriate save where a statute removes jurisdiction in the particular case.   Such as where the statute gives another court or tribunal exclusive jurisdiction over a matter: see Liverpool & London & Globe Insurance Co Ltd v J W Deaves Pty Ltd [1971] 2 NSWLR 131. NB: only the Supreme Court has such a broad ranging declaratory jurisdiction.   Inferior Courts such as the District Court and the Local Court do not have such jurisdiction. 1.4          Locus Standii   In the original jurisdiction a party’s legal rights had to be in issue in order to obtain a declaration.   A stranger to the dispute could not seek a declaration in order to clarify a legal point. The issue is more starkly exposed with respect to public rights.   A person must have standing to seek a declaration if seeking to assert a public right.   In order to obtain standing such person must: Obtain the Attorney-General’s permission to sue in the name of the Attorney-General, i.e. a relator action; or Demonstrate sufficient connection to the subject matter of the dispute. The requirement to obtain the Attorney General’s permission derives from English law whereby the Attorney General was charged with upholding the law with respect to public rights.   However the Attorneys General in Australia

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