4021LAW Civil Procedure Notes

Transcription

1 4021LAW Civil Procedure Notes Jurisdiction 5 Cross-Vesting in Practice 5 Case Management 6 Cause of Action 6 Limitation of Actions 6 PIPA 7 Originating Proceedings 8 Joinder of parties 9 Parties Overview 9 Joinder of Plaintiff by Plaintiff 9 Joinder of Defendant by Plaintiff 9 Joinder of Causes of Actions 9 Service 10 Substitute Service 10 Informal Service 10 Out of Jurisdiction Service 10 Affidavit of Service 11 Defence & Joinder of Parties 11 Notice of Intention to Defend 11 Time / Details of Notice of Intention to Defend 11 Overview of Defence - Admit, Deny Not Admit 11 Counter Claims 11 Defendant added by Counter Claims 12 Third Party Notice 12 Answer to CC + Reply 12 1

2 Answer to the Counter Claim 12 Reply 12 End of Pleadings 12 End of Pleadings 12 Amendment of Pleadings 13 Addition of Parties 13 Representative Actions 13 Information Gathering 13 Privilege 14 Legal Professional Privilege 14 Contesting Privilege 15 Interrogatories 15 Responding to Interrogatories 15 Non-Party Disclosure 15 Notices to Admit 16 Equus Corp Pty Ltd v Orazio 16 Rigato Farms Pty Ltd v Ridolfi 16 Injunctions 16 Interlocutory Injunction 16 Property Preservation Order 17 Search Order (Anton Piller) 17 Freeze Order (Mareva order) 17 Ending Proceedings Early 18 Want of Prosecution 18 Default Judgment 18 Summary Judgment 18 Discontinuance 19 2

3 Alternative Dispute Resolution 19 Court-Annexed ADR 19 Settlement - UCPR offers to settle 20 Offers to Settlement Common Law 20 Trial 21 Mode of Trial 21 Trial No Appearance 21 Trial - Judgment 21 Costs General Rule 22 Costs Exceptions to General Rule 22 Costs Exceptions to General Rule 22 Costs Multiple Parties/Actions 22 Costs Level 22 Costs Assessment 22 Appeals - Jurisdiction 23 Appeals - Type 23 Appeals - Procedure 23 Grounds of Appeal 23 Enforcement - Introduction 23 Enforcement Immediate, Conditional or Stayed 23 Enforcement - Limitations 23 Enforcement Money Order 24 Enforcement Money Order 24 Enforcement Non-Money Order 24 Federal Court 24 Procedure at Federal Court 24 Before Commencement 24 Commencing Proceedings 25 3

4 Right of Audience 25 Directions Hearing 25 Individual Docket System 25 Pleadings 26 Orders on Default 26 Summary Judgment 26 Discovery 26 Practice Note CM 5 - Discovery 27 Interrogatories 27 Trial 27 4

5 Jurisdiction Supreme Court is defined as a 'superior court of record' with unlimited jurisdiction for the 'administration of justice.' (s 58 Constitution of Queensland Act 2001) District Court - can do anything in disputes up to $750,000 (s 68(2) District Court of Queensland Act 1967 (Qld) Magistrates Court - only personal actions (common law, equity) but NO PROPERTY up to $ s 4 Magistrates Court Act 1921 (Qld) High Court - some original jurisdiction & final court of appeal Federal Court - statutory power of ʻsuperior court of recordʼ (s 19 Federal Court of Australia Act 1976 (Cth)) BUT cannot have state jurisdiction cross-vested in it: Re Watkim case. Therefore only has ʻassociatedʼ jurisdiction. Section 19 jurisdiction in: Judicial Review - (s 44 Administrative Appeals Tribunal 1975 (Cth), ADJRA, 39B Judiciary Act 1903 (Cth)) Bankruptcy; Intellectual Property; (Copyright Act 1968 (Cth), Designs Act 1906 (Cth), Patents Act 1990 (Cth), Trade Marks Act 1995 (Cth)) Native Title; Taxation; Australian Consumer Law. associated jurisdiction = jurisdiciton to resolve incidental state law issues within a federal law matter Three bases on which this jurisdiction can be asserted: 1. presence of defendant in jurisdiction; 2. voluntary submission by defendant to jurisdiction; or 3. statutory extension of jurisdiction States and Territories have an Australia-wide in personam jurisdiction by application of the Service and Execution of Process Act 1992 (Cth) (see r 123 UCPR) R Where defendent is out of Australia, there must be a connection with Queensland. For example, party sued for defamation in Victoria over material uploaded to the web in USA: Dow Jones & Company Inc v Gutnick. Cross-Vesting in Practice s 5 Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld) (Same Act title and date in Cth and other States and Territories) 1. 2 related proceedings in two participating Ct and if it is in the interests of justice --> transfer to most appropriate Ct 2. if it is in the interests of justice --> transfer to most appropriate Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at pragmatic approach to determining appropriate Ct and interests of justice. In other words, the cross-vesting scheme does more than just transfer jurisdiction, it also provides a sorting mechanism so as to prevent forum shopping. However, unlike SEPA this Act does not define what ʻinterests of justice meansʼ - this is left up to the courts. In making this assessment, the preference of the parties should be given little weight: BHP 5

6 Billiton v Schultz (2004) 221 CLR 400. Courts weigh up the connecting factors between the case and the possible jurisdictions including cost, convenience, and procedural advantages: James Hardie v Barry (2000) 50 NSWLR 357. R 52, 53 - If commencing claim in Qld Supreme Court relying on cross-vesting legislation, must make this explicit in the claim. Case Management Rule 5 provides the philosophy of the UCPR is the to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. Aon Risk Services Australia Limited v Australian National University Parties attempted to amend pleadings 3 days before trial was scheduled. High Court said not allowable - litigantʼs freedom to run case was less than public interest in proper case management. In effect, greater weight is given to case management than to the merits of the partiesʼ case. Practice Direction No 4 of 2002 sets out the general principles of case management. Practice Direction No 6 of 2000 sets out the priniciples of case management for long and/or complex matters. Case management can be either: matter list (Queensland courts) case controlled by registry and different judges at different stages of process docket system (Federal courts) case assigned to single judge, who manages that case from filing to disposition. Cause of Action You need all the elements + damage. Professional misconduct case for pursuing litigation for an ulterior purpose where there is no reasonable chance of success: White Industries (Qld) Pty Ltd v Flower & Hart (a firm). Limitation of Actions Limitations of Actions Act 1975 (Qld) (LAA) --> provides a complete defence but UCPR r 150(1)(c) D must plead LAA Parties can contract out of LAA, eg correspondence from defendant saying liability is not an issue has been held to amount to contract that precluded defendant from contesting liability, including defence that claim is statute barred: Newton, Bellamy & Wolfe v SGIO (1986) 1 QdR 431. Key periods: S10 - Contract - 6 years S10 - Tort - 6 years S11 - Personal Injury - 3 years 6

7 S10 - Action on Judgment - 12 years from date judgment becomes enforceable Section 7 LAA is a savings provision acknowledging that time limits do occur in other legislation, eg Civil Aviation (Carrierʼs Liability) Act (Clth) s 34 in Proctor v Jetway Aviation [1982] 2 NSWLR 264. LAA does not concern equitable actions - these are dealt with by laches. Time limit begins when action accrues. Contract = date of breach. Tort = date of injury. Expiration = anniversary of accrual +1. If accrual on 1 January 2011, expiry on 2 January As per s 38 Acts Interpretation Act 1958 (Qld). Key exceptions: 1. Where persons are under a disability: s29 a. S 5(2), (3) defines disability = infant or unsound mind. Basically s 29 provides that once you stop being of unsound mind or once you attain to the age of majority, your time starts to run (6 years for contract & tort, 3 years for PI). 2. In cases of personal injury: s31 ( material fact of decisive character MFODC ) b. must establish: ii. material fact s30(a); the fact of the occurrence of the negligence; the identity of the defendant; the fact that the negligence caused the PI; the nature/extent of the PI. iii. of decisive character s30(b) reasonable prospects of success; based on the info person should bring action iv. relating to the right of action (not cause of action); v. not within means of knowledge of applicant - s30(c); vi. until date following commencement of last year of limitation period, c. There is evidence to establish a right of action. d. s31(2) court may extend timeframe for 1 year from date of finding out MFODC ii. Taylor case re hysterectomy and Courier Mail MFODC but too prejudicial to Qld Health due to passing of time and couldnʼt find relevant surgeon. PIPA Personal Injuries Proceedings Act 2002 (Qld) (PIPA) - s 6 applies to all PI apart from motor vehicle accidents & workersʼ compensation. Claimant responsibility under section 9 to give Form 1 Notice of Claim within 9 months of injury or symptoms or within 1 month of seeing lawyer. Must provide information as per s 22. If claimant fails to comply, cannot commence litigation: s 18. Respondent responsibility to say whether they are a proper respondent under section 10 within 1 month. Must provide information under s months after NoC, hold compulsory conference: s 36. Must sign certificate of readiness: s 37(2). Court proceedings can be instigated 60 days after compulsory conference. 7