On this page:

  • Preparing submissions for a District Court trial
  • Synopsis of submissions
  • Consistency with your claim
  • What you should try to include in your submissions
  • Structure of a synopsis of submissions
  • Bundle of authorities
  • Memorandum on costs, interest and other matters

Parties to a court case might assist all involved, including themselves, if they prepared, filed and served a synopsis of argument or ‘submissions’ and bundle of authorities before the trial. The court may make orders to this effect at a case management conference.

Synopsis of submissions

The point of a synopsis of submissions is to summarise the points that you would need to make to convince the court of your argument. These would usually be points or ‘submissions’ about facts as well as law.

Note that, for a full trial, you may be expected to supply a synopsis of opening submissions before trial and then a separate synopsis of closing submissions at the time you make your closing argument. The opening may be expected to contain a more cursory summary of your argument based on what the evidence ‘will show’. The closing may be expected to be more detailed in relation to the facts and applicable law, and based on what the evidence ‘has shown’.

Consistency with your claim

Your submissions should be consistent with your claim where possible. If you think your submissions might not be consistent with your claim then you should consider notifying the court and other party or parties of that. If a significant change is sprung as a surprise at the hearing then the court may adjourn it to give the other party or parties a chance to prepare a response. There is also a risk that the court might refuse to consider the changes, although that is less likely.

Examples of changes that may be worth giving notice of as soon as you realise you need to make them include:

1. A new argument or different basis for your claim that was not set out in your statement of claim.

2. A kind of relief that is different from what was asked for in your statement of claim.

A lawyer could help you decide whether it is appropriate to give notice of any changes or prepare an amended statement of claim.

Synopsis of argument template

You can download a synopsis of argument template here that includes a cover page.

The page after the cover should begin with the words “MAY IT PLEASE YOUR HONOUR:” followed by a series of numbered paragraphs. You should try to limit the paragraphs to one sentence each if you can, and make those sentences as succinct as possible. You should try to limit each sentence to one thought each if you can. This may help you to be more succinct.

Another way to help you to be more succinct is to try to limit your synopsis to no more than 7 pages in total using the margin, font, font size and spacing as in the synopsis of argument template. Keep in mind that this document is intended to be a kind of summary only. You can of course elaborate on the points you need to make at the hearing. Also, the 7 page limit is not suggested as a target but as a maximum limit. That limit might not be appropriate in every situation. More pages might be called for where a case involves complicated facts and law.

You should try to include the following in your synopsis:

1. A brief statement of what you are claiming and why.

This might take one or two sentences. For example:

1. Mr Anderson owes me $10,000 in accordance with a loan agreement that he has broken.

2. A summary of the essential facts forming the background to the dispute.

This might take up the best part of a page or so. For example:

2. I am the plaintiff in this case and Mr Anderson is the defendant.

3. Mr Anderson and I made a written loan agreement on 1 March 2013.

4. The loan agreement provided that I would advance $9,000 to Mr Anderson who would repay the advance plus interest as set out in my claim form. I have also included a copy of the loan agreement at page 1 of the bundle of evidence I have submitted.

5. I made the advance to Mr Anderson on or about 15 March 2013. A copy of my bank statement for March 2013 showing the $9,000 being debited from my account is included in my bundle of evidence at page 8.

6. Mr Anderson paid the first instalment that was due under the loan agreement on or about 1 July 2013. A copy of my bank statement for July 2013 showing the $1,000 payment credited to my account appears at page 10 of my bundle of evidence.

7. Mr Anderson did not pay any other instalments due under the loan agreement when they fell due.

8. The reason Mr Anderson has given me for not paying his instalments is that I have not complied with the Credit Contracts and Consumer Finance Act 2003 because I did not provide initial disclosure or continuing disclosure under that Act, and he therefore does not have to pay me back.

9. I do not accept Mr Anderson’s argument.

10. The amount of principal outstanding plus interest calculated in accordance with the loan agreement comes to $10,000.

3. An explanation of your argument

This part would usually make up the bulk of your submissions. It would go into detail about the evidence and the law that supports your position, as well as addressing argument against your position.

For plaintiffs, a helpful way to structure this part of your submissions is to use the “F.I.L.A.C.” sequence:

1. Facts

2. Issues involved in the dispute

3. Law

4. Application of the law to the facts

5. Conclusion

Facts

You would probably have already described some essential facts in the ‘background’ part of your submissions. The facts in that part would probably do no more than set the scene of the dispute in most cases though. Here, you would address those facts that specifically relate to the dispute that has been raised. Parties tend to emphasise the facts that support their argument. Facts that do not support their argument are either underemphasised or dismissed as irrelevant or untrue.

Perhaps think of the ‘background’ part of your submissions as describing the battlefield and this part as pointing out the reasons why the battle should go your way. Keep in mind though that this part is only concerned with factual or evidential reasons for why you should succeed with your argument. Legal reasons are to be dealt with separately.

The facts that you would need to address are those that are relevant to the issues involved in your dispute. You would go on to set out those issues later in your submissions if you were using the F.I.L.A.C. structure, and this demonstrates why you should plan your submissions before you start writing them up: You need to figure out where you are going before you get started. That will help you identify what is relevant and what is not.

Staying with the example of the loan to Mr Anderson, this part of your submissions would deal with those facts that are relevant to why you do not accept Mr Anderson’s Credit Contracts and Consumer Finance Act 2003 argument. You would need to figure out what you would want to say about that argument in order to identify which facts might be relevant.

Part 2 of the Credit Contracts and Consumer Finance Act 2003 deals with initial disclosure and continuing disclosure. Section 10 provides:

This Part applies to consumer credit contracts.

Section 11 provides, among other things:

(1)       A credit contract is not a consumer credit contract if –

(a)       the debtor is a natural person; and

(b)       the debtor enters into the contract primarily for personal, domestic, or household purposes; and

[…]

(d)       when the contract is entered into, 1 or more of the following applies:

(i)        the creditor, or one of the creditors, carries on a business of providing credit (whether or not the business is the creditor’s only business or the creditor’s principal business):

(ii)       the creditor, or one of the creditors, makes a practice of providing credit in the course of a business carried on by the creditor:

(iii)      the creditor, or one of the creditors, makes a practice of entering into credit contracts in the creditor’s own name as creditor on behalf of, or as trustee or nominee for, any other person:

(iv)      the contract results from an introduction of one party to another party by a paid adviser or broker.

Now imagine that, for the purposes of the example:

1. the loan to Mr Anderson was not for personal, domestic or household purposes; and

2. you are not in the in business of providing credit or make a practice of giving credit.

An argument would follow that you are not required to provide initial or continuing disclosure because the loan agreement did not amount to a ‘consumer credit contract’.

Submissions on relevant facts might then be:

11. I am not in the business of providing credit and I do not make a practice of providing credit as part of any business of mine or on behalf of anyone else:   

11.1.    I have never made any loans to anyone else except for the loan I made to Mr Anderson.

11.2.    I gave the loan to Mr Anderson because my son, Scott Hill, had personally guaranteed a loan to Mr Anderson’s business given by ABC Limited. Copies of the loan from ABC Ltd and the personal guarantee given my son are included in my bundle of evidence at pages 12 and 25 respectively.

11.3.    Mr Anderson was to use my loan to pay off the loan from ABC Ltd and therefore release my son from his liability under the guarantee. This is as recorded in the loan agreement at page 3 of my bundle of evidence.

12. Mr Anderson did not obtain the loan for personal, domestic or household purposes: It was for his business as I have said, and I have referred to the provision in the loan agreement recording the purpose that the loan was to be used for in support of that position.

Issues

Your submissions could then go on to describe the issues that arise from the facts. You should have already identified those issues for yourself when preparing to write your submissions, but this is the part where you would write about the issues if you follow the F.I.L.A.C. structure.

The issues could be to do with evidence or law or a mixture of both.

In the Credit Contracts example you might say:

13. The immediate issue is whether the Credit Contracts and Consumer Finance Act 2003 applies to the loan agreement.

You could go on to make submissions on secondary issues such as whether you have complied with that Credit Contracts Act if it does apply, and if you have not complied then what consequences follow. These need not be addressed for the purposes of the example though.

Legal principles

The next thing to write about in your submissions are the legal principles that are relevant to resolving the issues one way or the other. ‘Legal principles’ may be found in authorities such as legislation, case law and legal texts.

You should carefully set out where you have found each legal principle you refer to.

An example of a reference to legislation:

“Section 27, subsection (2)(a) of the Property Law Act 2007”

An example of a reference to case law:

“Norman v ANZ National Bank Limited [2012] NZCA 356 (8 August 2012) at paragraph [37]”

However, note that you should not say “v” or “versus” in the Norman v ANZ National Bank Limited example if you were referring to that case orally. You should say “and” instead, so “Norman and ANZ National Bank Limited” if you were talking about that case out loud.

An example of a reference to a legal text:

“Burrows, Finn and Todd, Law of Contract in New Zealand (3rd ed, 2007) at 10.6.2(a)”

In the Credit Contracts example involving the loan to Mr Smith, you might carefully trace the provisions of the Credit Contracts and Consumer Finance Act 2003 that relate to the kinds of contracts where initial and continuing disclosure are required:

14. Part 2 of the Credit Contracts and Consumer Finance Act 2003 deals with initial disclosure and continuing disclosure. Section 10 provides:

This Part applies to consumer credit contracts.

15. Section 11 of the Credit Contracts and Consumer Finance Act 2003 provides, among other things:

(1)       A credit contract is not a consumer credit contract if –

(a)       the debtor is a natural person; and

(b)       the debtor enters into the contract primarily for personal, domestic, or household purposes; and

[…]

(d)       when the contract is entered into, 1 or more of the following applies:

(i)        the creditor, or one of the creditors, carries on a business of providing credit (whether or not the business is the creditor’s only business or the creditor’s principal business):

(ii)       the creditor, or one of the creditors, makes a practice of providing credit in the course of a business carried on by the creditor:

(iii)      the creditor, or one of the creditors, makes a practice of entering into credit contracts in the creditor’s own name as creditor on behalf of, or as trustee or nominee for, any other person:

(iv)      the contract results from an introduction of one party to another party by a paid adviser or broker.

16. Consequently, a contract would have to meet the definition of a ‘consumer credit contract’ before the requirements of the Credit Contracts and Consumer Finance Act 2003 that relate to initial and continuing disclosure apply.

Application

This step ties the relevant legal principles to the particular facts of your case. So you would explain how the law applies to the facts for each issue that is being argued about. In the example of the loan to Mr Smith you might submit:

17. loan agreement does not fall within the definition of a ‘consumer credit contract’ because the requirements of section 11(1)(b) and (1)(d) are not met.

18. Regarding section 11(1)(b), Mr Anderson did not obtain the loan for personal, domestic or household purposes.

19. Regarding section 11(1)(d), I am not in the business of providing credit and I do not make a practice of providing credit.

Conclusion

You would write about what follows from the application of the law to the facts of the case at this point in your submissions. It should be a statement of your position on the issues that are in dispute because it would not be sensible to arrive at a conclusion that is inconsistent with your position.

In the example of the loan to Mr Anderson:

20. Therefore Mr Anderson’s defence cannot succeed because there is no requirement to provide initial or continuing disclosure in this case.

21. It follows that the loan agreement is enforceable as claimed.

There can be a degree of overlap between facts, issues, legal principles and their application and the conclusions they lead to from time to time, and it might be difficult to divide everything into separate categories. That should not be a problem so long as to do actually address each F.I.L.A.C step in the course of your submissions. The main thing is to make your position clear and the reasons why you have taken that position.

Synopsis of argument template

You can download a synopsis of argument template that uses the F.I.L.A.C structure here.

Alternative structure for synopsis

An alternative way to structure your synopsis would be to use the slightly different I.R.A.C. sequence. This can be useful where there is little or no dispute over the facts of a case, and where the plaintiff has already set those out to the court.

I.R.A.C. stands for Issue, Rule (legal principle), Application (of the law to the facts of the case) and Conclusion. You would apply the I.R.A.C. sequence to each separate issue being argued about in a case.

Alternative synopsis template

You can download an alternative synopsis of argument template that uses the I.R.A.C. structure here.

Bundle of authorities

A bundle of the legal authorities relied upon could assist all involved in the court case including the judge. ‘Legal authorities’ can include legislation or ‘Acts of Parliament’, court cases and texts about law.

New Zealand legislation and cases may be ‘binding’, meaning that the court would have to do what they say. Cases from other jurisdictions and legal texts may help to persuade the court of a certain point of view, but the court does not have to follow them as though they are binding. The more those cases and texts relate to New Zealand law the more persuasive they may be. Cases and texts from England and Australia can be more persuasive than cases from the United States, for example, because many New Zealand laws align with counterparts in England and Australia. Foreign legislation, on the other hand, is usually completely irrelevant in that it is not binding or persuasive.

Bundles of authorities should be divided into categories and ordered alphabetically. The categories might simply be ‘Cases’, ‘Legislation’ and ‘Texts’. You might incorporate subcategories where appropriate, such as for New Zealand cases, Australian cases and English cases for example.

Bundle of authorities template

You can download a template bundle of authorities here.

Memorandum on costs, interest and other matters

You might consider calculating costs on whatever basis is appropriate and preparing a memorandum on those to hand up to the court and the other parties in closing at the trial. You might also include interest calculations on any money claims and any other related matter should the decision go your way. See those parts of this text dealing with costs and interest for more about those matters.

Memorandum on costs and interest template

You can download a template memorandum on costs and interest here.

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