“B” Draft Form of “Short Minutes of Orders” FRANCIS FORBES v RALPH DARLING; NSW Supreme Court File No.

XXXX of 2003 (Equity Division) SHORT MINUTES OF ORDERS
(By way of Directions/Terms of Settlement)
By Consent (and, where appropriate in the case of a settlement, without admissions of any kind):

1. ORDER (or DIRECT) that …. 2. Upon the Plaintiff by his counsel giving to the Court the usual undertaking as to damages, ORDER, until further order, that the Defendant by himself, his servants and agents be restrained from …. 3. NOTE that, upon the Plaintiff by his counsel giving to the Court the usual undertaking as to damages, the Defendant, by his counsel, undertakes to the Court (and to the Plaintiff) that the Defendant will not, by himself, his servants or agents … 4. NOTE that it is agreed between the parties (in consideration of …) that: a. … b. … 5. RESERVE … (particular questions for further consideration and/or liberty to apply on specified notice). 6. NOTE that no orders as to costs are made, to the intent that each party will pay or bear his own costs of the proceedings to date.

Date: 26 November 2003
…………………………………. Counsel/Solicitor for the Plaintiff [print and sign name] ………………………………… Counsel/Solicitor for the Defendant [print and sign name]

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EXPLANATORY NOTES 1. Short Minutes of Orders are essentially a convenient administrative aid for recording orders and notations made by the Court. If orders are to be “entered” (UCPR rule 36.11 – formerly SCR 41 rule 11) a formal “Minute of Order” (e.g. UCPR Approved Form 33 – formerly SCR Forms 50-51) needs to be prepared. 2. If there is any serious possibility that an application to the Court might be necessary to enforce orders, the Minute of Orders by which the orders are entered should contain an endorsement complying with UCPR rule 40.7(3) – formerly SCR Part 42 rule 8. See also UCPR rule 40.7(3) – formerly SCR Part 55. 3. Orders should be drafted in a form capable of precise interpretation and ready enforcement. 4. If orders are to be made requiring action to be taken within a specified time, the precise time should be stated. For example: “Order that the Plaintiff file and serve on or before 26 November 2003 …”, or “Order that the Plaintiff file and serve by 4.00 pm on 26 November 2003 …”. 5. An injunction is usually expressed in the following form: “ORDER that the Defendant by itself, its servants and agents be restrained from…”. 6. If an injunction or other restraining order, or an equivalent undertaking, is interlocutory it should generally be qualified by some temporal limitation: in the case of an order, for example, by insertion of words such as “until further order” after the word “order” or by the insertion of a particular limitation, such as the expression “until 4.00 pm on 26 November 2003 or further order” after the word “restrained”.

7. If an interlocutory injunction or other restraining order is made, or an equivalent undertaking to the Court is given, the party having the benefit of the order or undertaking should ordinarily give an undertaking as to damages (UCPR rule 25.8 – formerly SCR Part 28 rule 7) and that undertaking should be expressly noted in Short Minutes. A notation might take the form of a separate paragraph, to which the paragraph containing the restraining order or undertaking is expressed to be subject, or the order or undertaking itself might be expressed in terms such as, “Upon the Plaintiff by its counsel giving to the Court the usual undertaking as to damages, order, until further order, that the Defendant by itself its servants and agents be restrained from…. 8. If Short Minutes relate to a settlement which the parties have agreed to keep “confidential” the appropriate form of record for such an agreement is generally a Notation of Agreement rather than an Order for confidentiality. That is because the Court generally prefers to avoid unnecessarily exposing the parties, and the Court, to processes relating to contempts of court. 9. Where orders of the Court are in the nature of interlocutory directions the word “Direct” is not uncommonly used in lieu of the word “Order” in Short Minutes. A “direction” is, however, simply a species of “order’ and either word can be used in that context.

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10. The expression “By Consent” can sometimes give rise to difficulties. Judicial officers sometimes take the view that they cannot, or should not, make orders merely because parties agree to such orders being made. Sometimes Short Minutes use the expression “By and with the consent of the parties” to indicate that the Court has exercised an independent judgment about the correctness of the orders recorded. In any event, care should be taken not to sign Short Minutes that include the word “consent” if the orders recorded are not in fact the subject of consent (eg if they are orders giving effect to Reasons for Judgment after a contested hearing); otherwise an appearance of “consent” might, in a practical sense, limit a signatory’s entitlement to challenge the orders at a later stage of proceedings. 11. If an interlocutory injunction is consented to, or an interlocutory undertaking is given, Short Minutes recording that fact should generally be marked “without admissions of any kind”. Otherwise the Short Minutes might, at a later stage of proceedings, be treated as containing an admission. 12. Care should be taken to ensure that any reservation of “liberty to apply”, or any reservation of a substantive question requiring further consideration, achieves its purpose. A mere reservation of liberty to apply, in the context of final orders, does nothing more than facilitate applications to the Court to “work out”, or implement, the substantive orders made.

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