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Best Practice: Order rules

Every Issue

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.80

Drafting good orders starts with a clear understanding of what your client requires.

Poorly drafted orders can result in the orders being of no effect. In extreme situations a practitioner might be held negligent if there is a resulting loss as a consequence of poorly drafted orders.

Whether drafting orders before litigation has commenced, during litigation, or even by consent, the drafting of good orders starts with a clear understanding of what your client requires. Where possible, and before drafting, practitioners should obtain specific instructions as to the outcomes sought by the client. These instructions should be confirmed in writing.

Remember that during negotiations or litigation, the range of outcomes available to the client can change. Practitioners should be mindful of the original outcomes sought by their client and advise them if the landscape has changed. This will assist the client in understanding why any proposed orders differ from what the client had originally envisaged.

Here are some suggestions for drafting effective orders.

  • Use tight drafting. Keep sentences and clauses to a reasonable length. If any sentence contains more than one idea or concept then consider breaking it into two sentences. To assist, read the order and where the word “and” appears, consider if it can be replaced with a full stop. Do this for all conjunctive words; for example, “notwithstanding”.
  • In addition to simplifying the structure, drafters should also simplify the language. When not required for a technical reason, remove legalese and use plain English. awyers tend to use words that are very long that don’t always assist in understanding the order.
  • Reduce the use of subjective phrases. While phrases like “as soon as practicable” are common it is better to be objective. For example, “within seven days”. That way all parties have a clear understanding of the requirements. This helps in reducing arguments.

Orders should be drafted in such a way that the parties and the courts can easily understand what is required by the orders.

  • Where possible give the authority for an order. If an order is based on a statutory provision then cite that authority. An example of the order is: Pursuant to s81 of the Family Law Act 1975 . . .”
  • Consider giving explanations to orders either at the end of the order or within the notations. An example is: To avoid confusion the parties understand that the school terms and holidays occur as gazetted by the relevant state authority.

Finally, a practitioner should always seek instructions before settling a matter. The operation of the orders should be fully explained to the client along with how the orders relate to the outcomes that the client was seeking. It is recommended that the client “sign off” on any orders and where possible hard copies of the orders should be given to the client before the orders are made.

FABIAN HORTON is a lecturer at the College of Law. Practice tips are provided by the College of Law.


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