What is a Notice to Show Cause?

Being issued with any formal legal document can be alarming. Receiving a notice to show cause is no exception. This is a formal document issued to one party in a dispute. It sets out details of an alleged offence and gives the receiving party the chance to explain itself or otherwise face some further consequences. Therefore, it is important to respond promptly and thoroughly to a show cause notice. You should also understand the implications for failing to adequately respond. This article will explain when a notice to show cause can be used and guide you through the steps to take if you receive one. 

Why Have I Been Issued With a Show Cause Notice? 

A notice to show cause may be used in a wide variety of situations, from court case proceedings to workplace disciplinary proceedings. It allows the receiving party to tell their side of the story and explain why further action should not be taken. In other words, it offers procedural fairness to the party receiving the notice.

A notice to show cause has many forms. All types have a similar effect, being some form of disciplinary process. For instance, a punishment or penalty if you do not reply within the deadline or in an adequate manner. Additionally, it is usually issued to bring a matter to a head and prompt a decisive response. 

Types of Show Cause Notices 

There are a wide variety of show cause notices. Common types are set out below.

Court 

A court may issue a show cause order during proceedings. This may require one or more of the parties to justify, explain or prove something to the court. Common requests include providing more information to the judge, before deciding to issue an order requested by one party. 

Employment 

An employer may issue a show cause notice to an employee concerning their conduct or behaviour. It may signal the employer’s intention to take disciplinary action if the employee does not provide suitable reasons for the behaviour. A notice usually relates to serious misconduct or matters such as workplace bullying or underperformance.

Consumer Law

Bodies that regulate consumer law, such as NSW Fair Trading, may issue a notice to any business it believes has breached consumer laws. The notice gives the receiving party the chance to make submissions to explain its conduct and potentially avoid disciplinary action. 

Insolvency

Regulatory bodies like the Australian Securities and Investments Commission (ASIC) and the Australian Financial Security Authority (AFSA) use notices to investigate and discipline insolvency practitioners. ASIC and AFSA can issue a notice to show cause where they have reason to believe an insolvency practitioner has breached their duties, such as by:

• committing fraud or misconduct;
• failing to have the correct insurance; or 
• failing to show the required skill and experience of a practitioner. 

Construction

A party to a construction contract may issue a notice to show cause. Generally, if it believes the other party has breached the contract in some way and wishes to terminate the contract. Failing to issue a notice may leave that party at risk of an unfair dismissal claim by the other party. 

Local Council

Homeowners or landowners may receive a notice from their local council about a non-complying building or structure on the property. For example, your council may issue a notice relating to a retaining wall or fence it deems hazardous. Or additionally, if you are using the building for a purpose outside any development consent. 

How to Respond to a Notice to Show Cause

Failing to respond to any type of notice to show cause will usually result in some sort of damage or penalty. You should take the following steps if you receive a notice:  

1. note the deadline for response: It will usually be between 14 and 28 days but may be sooner. If you cannot meet the deadline, you should contact the issuing party as soon as possible and request an extension;
2. check the details. If any facts are not accurate, notify the issuing party as soon as possible; 
3. get legal advice if the matter is complex or has the potential to do serious damage to your business or professional standing, such as losing an insolvency practitioner licence; 
4. prepare a response: Check the requirements for responding to the notice and respond as directed. That may require additional documents as evidence or a supporting statement from any witness or other parties; 
5. challenge the notice: If you are clear that the notice was incorrectly issued or the alleged offence has not occurred, you may wish to challenge the notice. This may be included in any general submissions. However, you should read any terms carefully to confirm if a challenge is to take a different form; and
6. give notice of any action taken by you in response. For example, if you have arranged to have a hazardous boundary fence repaired, notify the council to inform it that you have complied with the notice. It may wish to re-inspect the property to confirm the correct action has been taken. 

Key Takeaways

Receiving a notice to show cause may be shocking. However, it also gives you an essential ‘heads-up’ of a potentially damaging claim. Further, it provides the opportunity to respond and tell your side of the story. If you fail to respond to a notice, the resulting penalty may be more damaging. You should take any notice seriously and should respond quickly and thoroughly. If you have any questions about a notice to show cause, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.  

Frequently Asked Questions