Contents Introduction to Civil Procedure... 1 Procedural Law... 1 Guiding Principle for Procedure... 1 Adversarial System of Litigation... 1 Cards on the Table Approach to Litigation... 2 Principle of Open Justice... 2 Provision of Reasons for Decisions... 3 Principle of a Fair Trial... 4 The Crown as a Model Litigant... 5 Right to a Fair Trial Recognised in HR Legislation... 6 NSW Court System: An Overview... 7 Supreme Court NSW... 7 Industrial Relations Commission and Industrial Court of NSW... 7 District Court of NSW... 8 Local Court of NSW... 8 Case Management... 9 Justice Delayed is Justice Denied... 9 Costs... 11 Litigation Costs... 12 Caseload Management... 13 CPA & UCPR... 13 Managerial Judging... 14 Directions... 15 Application of the CPA and the UCPR... 16 Ethical Requirements... 18 Practice Notes... 19 Jurisdiction... 21 Cross Vesting Legislation... 21 Limitation Periods... 23 Definition and Rationale... 23 Limitation Periods are Substantive Law... 24 Contract and Tort Limitation Periods in NSW... 25 Personal Injury Limitations Periods in NSW... 25 Preliminary Discovery... 27 Preliminary Discovery for Identity or Whereabouts... 27 Preliminary Discovery for Deciding Whether or Not to Commence Proceedings... 27 Procedure... 28 Interim Preservation Orders... 33 Power to grant interim injunctions... 33 District Court Act 1973 (NSW) s 46... 33 - Gives power to the District Court to grant injunctions, including interlocutory injunctions, in actions as defined in s 44... 33
Interim Injunctions... 34 Freezing Orders (Mareva Injunction)... 34 Practice Note SC Gen 14 - Supreme Court Freezing/Mareva Orders... 37 Search Orders (Anton Piller Orders)... 40 Practice Note SC Gen 13 Search/Anton Piller Orders... 40 Alternatives to Litigation... 47 Introduction... 47 Alternative Dispute Resolution... 47 Growth of ADR... 47 Issues with ADR... 48 Types of ADR Processes... 52 Negotiation... 53 Positional v Interest-Based Negotiation... 54 Role of the Law in Interest-Based Negotiation... 54 Mediation... 55 Why Choose Mediation?... 56 Comparison Between Negotiation and Mediation... 57 Role of the Lawyer... 57 Compulsory Mediation... 57 Ripeness of a Dispute for Mediation... 61 Mediation Process... 61 Preparing for a Mediation... 62 Underlying Benefits of Prelim Conference... 63 Challenges for the Future Regarding Prelim Processes... 63 Role of the Position Paper in the Prelim Processes... 63 Reframing the Position Paper... 64 Advocacy at Mediation... 65 Understanding the Mediation Process and Ensuring that the Client Understands It... 66 Understanding the Roles That a Lawyer Can Play at Mediation... 66 Understanding the Dispute and Client s Interest and Needs... 66 Assisting the Client to Seek Lateral Resolution of the Dispute... 66 Advising the Client of the Likely Best and Worst Outcomes... 67 Preparing the Client for the End Game of Mediation... 67 Engaging in appropriate advocacy at the mediation... 67 Arbitration... 68 Advantages of Arbitration... 69 Disadvantages of Arbitration... 70 Compulsory Arbitration... 71 Commercial Arbitration Act 2010 (NSW) (Voluntary Arbitration)... 72 Compulsory Referral to a Referee... 74 Enforceability of Agreements to use ADR... 75 Settlements Negotiation Privilege... 77 Litigation or ADR?... 81
Continuing Role for Litigation... 81 Application and Development of the Law... 81 Procedural Protections... 82 Urgent Relief... 82 Compelling Disclosure of Information... 84 State Enforcement Mechanisms... 84 Broader View of Justice... 85 What is Justice?... 85 Access to Justice Movement & Justice Definition... 86 Justice Beyond Courts... 86 Capacity of Court-Based Adjudication to Deliver Justice... 87 Costs & Security for Costs... 89 Proportionality of Costs... 89 Duties of Litigants... 90 Costs... 90 Lawyers and Costs... 91 Parties and Costs... 95 Solicitor and Client Costs... 95 Party and Party Costs... 95 Costs Follow the Event (Usual Costs Order)... 97 Specific Costs Orders... 98 No Order as to Costs... 98 Costs of the Day... 98 Costs Thrown Away... 98 Costs in any Event... 98 Costs in the Cause... 98 Security for Costs:... 98 Security for Costs Under Inherent Jurisdiction... 101 Funding Litigation... 103 Future of Litigation Funding in Australia... 104 Litigation Funding and Access to Justice... 105 Litigation Funders Market... 106 Emerging Opportunities for Funders... 106 Regulation of Litigation Funders in Australia... 107 Future of Regulation... 108 Lawyers and Litigation: A Pathway Out to Wealth and Fame?... 108 Contradictions of a Profession... 108 Ascendancy of Economic Values... 108 New Paradigm... 109 New Challenges... 110 The Future... 110 The Future of Pro Bono... 111 Pro Bono Today... 111
Why Lawyers Act Pro Bono... 112 Relationship with Legal Aid... 112 How Much is Done?... 112 Key Providers... 113 Engaging with Dispute Resolution... 113 Litigation Barriers... 113 Alternative Dispute Resolution... 114 Offers of Compromise and Calderbank Letters... 117 Offers of Compromise Under the UCPR... 117 Effect of New Rules... 118 Calderbank Offers... 118 Basic Rule as to Cost... 118 Policy and Purpose... 119 Calderbank Offers and Indemnity Costs... 119 Genuine Compromise... 119 Rejection of Offer Must be Unreasonable... 120 Usual Form of a Calderbank Offer... 120 Types of Offers... 121 Calderbank Offers v Rule Offers... 122 Causes of Action (Res Judicata)... 125 Introduction... 125 Cause of Action Estoppel... 126 Issue Estoppel... 126 Merger in Judgment... 127 Anshun Estoppel... 128 Pleadings... 133 Originating Process... 133 Appearance... 134 Pleadings... 135 Material Facts... 137 Evidence... 138 No Conclusions of Law as Material Facts... 138 Surprise... 138 Verification... 139 Particulars... 139 Particulars and Evidence... 141 Required Particulars... 142 Striking Out Pleadings... 142 Pleadings that Cause Prejudice, Embarrassment or Delay... 143 Pleadings that Do Not Disclose a Reasonable Cause of Action... 143 Service of Documents... 145 Service of Documents Generally... 145 Service of Originating Process... 145
Personal Service... 146 Service Constituting Personal Service... 148 Service by Agreement, Acknowledgment or Undertaking... 148 Acceptance of Service by a Solicitor... 149 Substituted and Informal Service... 149 Confirmation of Informal Service... 151 Waiver of Objection to Service... 151 Service Beyond the Jurisdiction... 151 Service Outside NSW but Within AUS... 151 Service Overseas... 153 UCPR PT 11... 153 Service by Private Means - UCPR Pt 11 (Division 1)... 153 Service by Diplomatic Channels UCPR Pt 11 (Division 2)... 155 Service Overseas: Under the Hague Convention... 157 Client Legal Privilege (CLP)... 159 Rationale for Client Legal Privilege... 159 Dominant Purpose Test to Determine Client Legal Privilege... 159 Loss of Client Privilege... 165 Representative Proceedings (Class Actions)... 173 Introduction... 173 Commencing a Class Action... 173 Seven of More Persons... 174 Claims Against the Same Person... 174 Same, Similar or Related Circumstances... 174 Substantial Common Issue of Law or Fact... 175 Class Action Proceedings... 175 Discontinuance and Subgroups... 176 Discontinuing a Class Action... 176 Sub-Groups and Individual Issues... 177 Class Actions in Australia: (Still) a work in progress... 177 Group Definition and the Right to Opt Out... 178 Right to Opt Out... 178 Reconciling Litigation Funding and the Opt Out Group Definition... 179 The Closed Class... 179 Settlement... 180 Shareholder Class Actions in Australia The Perfect Storm?... 180 Requirements for Court Approval... 181 Discovery... 183 Discovery of Documents... 183 Problems caused by the discovery process... 183 Improving the Discovery Process... 185 Discovery Process... 186 Practice note SC EQ 11: Disclosure in the Equity Division... 189
Implied Undertaking... 193 An Implied Undertaking an Obligation of Substantive Law (Hearne v Street)... 193 Third Party Obligations (Hearne v Street)... 194 Supreme Court Practice Note Gen 2... 194 Discovery and Technology... 197 Scope of Discovery... 199 Accessible/Inaccessible ESI... 199 Format of ESI... 199 Metadata... 200 Finding Responsive ESI... 200 Co-operation The New Paradigm... 201 Electronically Stored Information and Social Media... 201 ESI v Paper-Based Information... 201 Cloud Computing... 202 Social Media... 202 ESI and Discovery... 202 Social Media and Discovery... 203 Obtaining Access to ESI and Social Media... 203 Authenticity and Reliability... 204 Subpoenas and Interrogatories... 205 Subpoena to Produce... 205 Setting Aside a Subpoena... 205 Interrogatories... 209 Witness Preparation & Affidavits... 211 Witness Preparation... 211 Ethical and Effective Witness Preparation... 211 Affidavits... 215 Legal Requirements for Affidavits... 216 Oaths Act 1900 (NSW)... 216 Drafting Affidavits... 219 False Swearing... 221 Practical Litigation in the Federal Court of Australia: Affidavits & False Swearing... 223 Practical Litigation in the Federal Court of Australia: Affidavits & Written or Oral Evidence.... 225 Oral or Written Evidence... 225 Concluding Proceedings... 227 Summary Disposal... 227 Summary Judgment... 227 Default Judgment... 228 Setting Aside a Default Judgment... 229 Summary Dismissal... 230 No Reasonable Prospect of Success... 232 Want of Prosecution... 233
Introduction to Civil Procedure Procedural Law Procedural law is rules which are directed to governing ir regulating the mode or conduct of ct proceedings. (McKain v RW Miller & Co (SA) (1991)). It is the mode or method of enforcing a right. Procedural law is differentiated from substantive law in that procedural law regulates the way in which substantive rights and obligations are claimed and enforced without impacting on the definition of those particular substantive rights. The purpose of procedural law is to provide rules to facilitate dispute resolution. Guiding Principle for Procedure The guiding pple is derived from s 56 CPA to facilitate the just, quick and chea resolution of the real issues in the proceedings. This is supplemented by s 60 resolving issues in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. Adversarial System of Litigation The adversarial system of litigation has been criticised on the grounds that it prevents access to justice due to its cost (public and private) and delay. It has also been criticised for being unjust, unequal and producing inaccurate results. Victorian Law Reform Commission, Civil Justice Review: Report 14 (2008) Resource Allocation and distribution of civil and criminal cases Funding is a critical factor affecting the operation of the civil justice system Apart from its impact on the level of judicial and other resources, funding will influence the quality of judicial and other court personnel e.g. judicial personnel earn less than those practicing privately; there needs to be incentives According to the Productivity Commission, in the 05-06 financial years, recurrent expenditure on court administration for civil courts in VIC amounted to $86.3 million. In the same period, income derived through the civil courts in VIC, excluding fines amounted to $33.9 million. In recent times there have been increasing calls for users of the court system to pay more for the services provided, including in commercial disputes between resourceful commercial entities Access to justice is a qualified right. Governments cannot be expected to provide unlimited publicly funded resources for the adjudication of disputes, particularly private dispute which do not have significant interest beyond those of the parties From a policy perspective, there is a need to balance the governments duty to use public funds responsibly and the obligation of parties to bear some responsibility for resolving their differences 1
Requirements of effectiveness, efficiency and fairness are easily translated to the provision of court dispute resolution Court adjudication is effective if it determines claims with reasonable accuracy, within a reasonable time and with proportionate investment of litigant and public resources Adjudication is fair if the system ensures that its resources and facilities are justly distributed between all litigants seeking court help and between present and future litigants Generally accepted goals of the civil justice system cannot be pursued without some moderation, or pursued by unfair means or by exhausting every avenue of inquiry Cards on the Table Approach to Litigation Baulderstone Hornibrook Engineering v Gordian Runoff [2008] NSWCA 243 Allsop P The need for clarity, precision, and openness in the conduct of litigation flows most clearly from the statutory duty of a party in civil proceedings to assit the ct to further the overriding purpose to facilitate just, quick and cheap resolution fo the real issues in dispute It cannot be emphasised too strongly that it is the responsibility of the parties through their legal representatives to exercise a degree of cooperation to express the issues for trial before and during the trial Such cooperation can now be taken as an aspect of modern civil procedure in the running of any civil litigation This requirement is mandated under statute (Civil Procedure Act 2005 (NSW) Encompasses the requirement to be clear and precise extends to all aspects of the engagement in the Court s processes Principle of Open Justice Essential to the legal system, as Spigelman said in John Fairfax v District Court of NSW: The conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public Qualified in R v Richards & Bijkerk: Court proceedings are conducted in public and exposed to the cathartic glare of publicity. Publicity is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. The ct can depart from open justice in various ways including: Prohibition of publication of all or part of proceedings Video-link for witnesses Pseudonym orders Suppression orders 2
The power to make orders to close justice is an inherent power of a superior court and in statutory courts the power to make orders that depart from the open justice principle can be implies as necessary to proper function of the ct. Considered in John Fairfax as only to be permitted when really necessary to secure the proper administration of justice. This has been interpreted to mean that: The basis is that if the kind of order proposed is not made, the result will be that particular consequences will flow that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court (Mahoney JA in John Fairfax). Hogan v Hinch (2011) 275 ALR 408 Hinch, a radio broadcaster was responsible for a website (HINCH.net). Charged with 5 counts if contravening three suppression orders made under s 42 of Serious Sex Offenders Monitoring Act 2005 (Vic). Suppression orders prohibited publication of any information that might enable the identification of certain convicted sex offenders, who were the subject of post-custodial extended supervisions Hinch claimed s 42 was invalid because The jurisdiction or power conferred by it diminished the institutional integrity of the courts, contrary to the implied requirement of Ch. III of the constitution and; The prohibitions made under s 42 were contrary to an implication derived from Ch. II of the Constitution that all courts must be open to the public Held: appeal dismissed. It is a common law corollary of open-court principle that absent any restriction ordered by the court, anybody may publish fair and accurate report of proceedings. There are established exceptions to the general rule that judicial proceedings shall be conducted in public and that category is not closed to the parliament. As such, argument fails this would limit the legislative power of parliament, it indicates that a federal law would not deny an essential characteristic of a court exercising federal jurisdiction. Provision of Reasons for Decisions Wainhou v NSW (2011) 243 CLR 181 Plaintiff, member and former president of Hells Angels, sought a declaration that the Crimes (Criminal Organisations Control) Act 2009 (NSW) was invalid. Part 2 of the Act provided that the Commissioner of Police may apply to an eligible judge of the Supreme Court for a declaration that a particular organisation is a declared organisation for the purposes of the Act if satisfied that: Members of the organisation associate for the purpose of organising, facilitating, supporting, or engaging in serious criminal activity, and The organisation represents a risk to public safety and order in the State 3
Argued that this contravened the open court principle Held: act invalid. A court, which does not give reasons for, a final decision for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function, etc. Act is invalid as it undermines the open justice principle in a seemingly arbitrary fashion (minority). Act imposes no duty on the judge to provide reasons or grounds when deciding applications to make or revoke a declaration, and for that reason the Act is invalid (majority). Principle of a Fair Trial Spigelman, The Truth can Cost too Much: The principle of a fair trial (2004) It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularised legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed In AUS there is no such right to a fair trial enshrined in any concrete or written constitutional sense. Instead it is a pple. In a principle base system, significance and weight to be given to fair trial considerations will vary from case to case, perhaps to a greater degree than a rights based system An inherent form of protection of procedural rights can be found in chapter II although, there is no clear majority decision to that effect Obligation to the pursuit of natural justice applies with particular force to judicial proceedings Trial procedure including the imposition of an onus of proof and the differentiation between civil and criminal proceedings reflects an understanding of what fairness requires in the particular circumstances Stead v State Government Insurance Commission (1986) 161 CLR 141 Action for negligence arising out of a motor accident. Issue was whether the plaintiff developed a neurotic condition from the accident. Whether the accident resulting from the defendant s negligence was the cause or a material factor contributing to the condition was a major issue expert evidence was relied on. Trial judge directed the plaintiff so as not to address the evidence given by expert in his closing argument, however when delivering his judgment, his Honour referred to that evidence. Appealed to SCSA, appeal was dismissed because the enquiry whether a miscarriage of justice has occurred involves asking whether the event said to cause a miscarriage could have made any difference to result. Appealed to HCA. Held: new trial. Not every departure from the rules of natural justice at trial will entitled aggrieved party to a new trial on appeal requires context/gravity etc. Where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, 4
especially when the issue is whether the evidence of a witness should be accepted, it is certainly questionable whether the requirements of natural justice would ve led to a different outcome. It is necessary to establish that had the trial been properly conducted, a different result would ve been reached. Mastronardi v NSW [2007] NSWCA 54 Plaintiff was a prisoner at Silverwater, seriously assaulted in his cell by fellow prisoners and brought a case of negligence against the state. Gave evidence at trial that he had been assaulted, trial judge rejected his testimony. Appealed on the grounds that a substantial wrong or miscarriage had thereby been occasioned to allow for the ordering of a new trial pursuant to Supreme Court Rules Pt. 51 r 23 (UCPR r 51.53) Held: retrial. May be properly said that the Appellant did not have a fair trial according to law. The case lacked evidence of a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made. Because the appellant did not have a trial untainted by material factual errors, he is entitled to a retrial. Appellant was unsuccessful in trial and the later appeal. The Crown as a Model Litigant NSW Model Litigant Policy for Civil Litigation Approved for adoption on 8 July 2008 The Obligation The State and its agencies must act as a model litigant in the conduct of litigation Nature of Obligation Must act promptly Must pay legitimate claims without litigation, including partial settlements, or interim payments Must act consistently Must endeavour to avoid litigation wherever possible Must keep costs to a minimum Must not take advantage of under-resourced claimants with a legitimate claim (oh sure, I bet the NEVER do this) Must not rely on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement Must not undertake or pursue appeals unless reasonable prospects for success Must apologise where the state/their lawyers have acted wrongfully 5
Right to a Fair Trial Recognised in HR Legislation ICCPR Article 14 All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Human Rights Act (2004) ACT s 21 21 Fair Trial (1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) However, the press and public may be excluded from all or part of a trial (a) To protect morals, public order or national security in a democratic society; or (b) If the interest of the private lives of the parties require the exclusion; or (c) If, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice. (3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public. Charter of Human Rights and Responsibilities Act 2006 (VIC) s 24 24 Fair hearing (1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter. Note to s. 24(2) substituted by No. 58/2013 s. 37. Note: See Part 5 of the Open Courts Act 2013. (3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits. 6
Civil Justice Review Human Rights Considerations VLC (2008) Some areas where there may be tension/conflict between procedural reform and human rights protections include: Limitations on expert evidence Limitations on publicly funded legal services Excessive court fees and charges Limitations on calling witnesses Limitations on time allowed for hearings/cross-examination Limitations on proceedings in public Compulsory referral to mediation/arbitration Cases where hearings are not held within a reasonable time Nature of the assistance required to be given to self-represented litigants Restrictions on the right to a final hearing, including provisions for striking out claims or defences Economic constraints on the right to a hearing, including security for costs Paper-based vs. oral processes Applications for adjournment Disclosure obligations and discovery Exclusion of evidence Requirements relating to proportionality Judicial appointment, tenure and bias Funding of civil system NSW Court System: An Overview Supreme Court NSW Highest Court in NSW operates under the Supreme Court Act 1970 (NSW) & the Civil Procedure Act 2005 (NSW) Unlimited civil jurisdiction and deals with the most serious criminal matters Common law division deals with civil, criminal and administrative law matters where more than $750,000 is claimed Equity division deals with cases involving commercial law, corporations law, equity, trusts, probate and matters pursuant to family law legislation Two appellate divisions: the Court of Appeal and the Court of Criminal Appeal Court of Appeal consists of judges who hear civil appeals Court of Criminal Appeal hears appeals arising from criminal matters from the Supreme Court, District Court, Land and Environment Court and some tribunals Appeal bench is usually three justices, full bench = 5 Industrial Relations Commission and Industrial Court of NSW Established under the Industrial Relations Act 1996 7