Civil Practice Subject Notes Subject number: 70104
Table of Contents Lecture 1 - Introduction... 7 Lecture 2 Pre- litigation and case management... 10 Pre- litigation requirements... 10 Requirement to attempt resolution before litigation... 11 The Rules in NSW... 11 Court Adjudication in the Civil Justice System... 11 Case Management... 12 Lecture 3 Case management and the overriding purpose... 14 Case Management... 14 Role of the judge... 15 Managerial judging... 15 Caseflow management... 15 Models of management... 16 Special leave HCA... 17 Referral to mediation... 17 The Overriding Purpose... 18 Shift control from parties to the Court... 18 Articulate the purpose... 18 Challenge decisions... 19 Judicial interpretation... 20 The future?... 20 Ethical obligations in relation to conduct of proceeding... 20 Advocacy rules... 20 Notice obligations... 21 Identify issues... 21 Reasonable prospects... 21 Lecture 4 Case Management and Causes of Action... 22 What is a Pleading?... 22 Litigation drafting... 23 What are particulars... 24 Amendments... 24 Gunns v Marr... 25 Markisic... 26 (Note more on Markisic on p 49) Lecture 5 Advocacy: Dispute Resolution and Problem Solving... 27 ADR a Comparative Perspective... 27 Guiding Principles... 27 Litigation and Mediation... 28 Mediation and ADR process... 28 2
Mediation & Negotiation... 28 Mediation & Conciliation... 29 Mediation & Arbitration... 29 Mediation in Courts and Tribunals... 30 Case Management & Mediation... 30 Features of Court- ordered Mediation... 31 Negotiation types and principles see Part 3 of text... 33 Lecture 6 Advisory and Determinative Processes... 34 Differences between litigation and arbitration... 34 Advantages of arbitration... 36 Disadvantages of arbitration... 36 Different types of ADR from the NSW website... 37 Lecture 7 Initiating Proceedings: Commencing Litigation... 39 Commencing Proceedings... 39 Client care... 39 Pre- action protocols... 40 Letters of demand... 41 Commencing proceedings... 42 Pleading... 43 Purpose of pleadings... 43 Contents of pleadings... 43 Procedure... 43 Statement of Claim... 44 Defence... 44 Counterclaim and Set- off... 45 Particulars... 45 Striking out pleadings guest lecture... 46 Service... 46 Personal service... 47 Ordinary service... 47 Special parties... 48 Special actions... 48 Proof of service... 48 Substituted service... 48 Service out of the jurisdiction... 48 Judgments and orders... 48 Setting aside service irregularities... 48 Lecture 8 Interlocutory Applications Part I... 50 Strike out... 50 About striking out... 51 UCPR Strike Out Rules... 51 Rules of pleading... 51 3
Rules of pleading particulars... 52 Material facts... 52 Reasonable cause of action... 52 Embarrassment... 53 Frivolous and Vexatious... 53 State of SW v Peat Marwick... 53 Abuse of process... 54 Summary disposal... 55 Vexatious litigants... 56 Lecture 9 Interlocutory Applications Part II... 57 PART A Interlocutory Applications... 57 Motions under the UCPR... 57 Operation of interlocutory applications... 58 Injunctions... 59 Mareva orders... 60 Anton Piller orders... 60 Security for costs... 61 PART B - Defending Proceedings... 61 Representative proceedings...61 Trustees for the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565... 61 Part 7.4 and 7.5 of the UCPR 2005 (NSW) since repealed... 62 Default judgment...62 Borowiak v Hobbs and Anor [2006] NSWSC 1089... 62 Part 16 of the UCPR 2005 (NSW)... 62 Summary disposal...63 Phornpisutikul v Mileto [2006] NSWSC 57...63 Part 13 of UCPR 2005 (NSW)...63 Lecture 10 Evidence in Proceedings... 64 Affidavits... 64 What is an affidavit?... 64 Form... 65 Annexures versus exhibits... 65 Originals or copies?... 65 Oaths and affirmations... 65 Jurat... 65 Uniform Civil Procedure Rules... 65 Discovery and inspection... 68 History... 69 Benefits... 69 Problems... 69 Preliminary Part 5... 69 Generally Part 21... 70 4
Cases... 70 Seven Network Ltd v News Ltd [2007] McCabe v British American Tobacco Australia Services Limited [2002] BAM Aust Services Limited v Cowell (as rep of estate of McCabe) (2002) NSW Commissioner of Police v Tuxford [2002] Attorney General (NSW) v Chidgey [2008] Palavi v Radio 2UE Sydney Pty Ltd [2011] Con Ange v Fairfax Media Publications Pty Ltd and Ors [2010] Notices to produce... 72 Part 34... 72 Part 21... 72 Subpoenas... 73 Objections to produce documents founded on privilege... 73 A note about other evidence (oral and documentary)... 74 Lecture 11 Costs... 75 Cases...75 Costs as a means of managing litigation...76 Costs as a means of encouraging settlement...77 The Rules...77 Section 98 of the civil procedure act.... 77 Part 42 - UCPR... 77 Calderbank letters and Offers of compromise...80 Bases upon which costs can be awarded...82 Security for costs...82 Common types of costs orders...82 Costs against legal practitioners...83 Lecture 11 Costs... 75 Cases...75 Costs as a means of managing litigation...76 Costs as a means of encouraging settlement...77 The Rules...77 Section 98 of the civil procedure act.... 77 Part 42 - UCPR... 77 Calderbank letters and Offers of compromise...80 Bases upon which costs can be awarded...82 Security for costs...82 Common types of costs orders...82 Costs against legal practitioners...83 Lecture 12 Enforcing judgments and appeal... 85 Definitions... 85 Enforcement of judgments... 85 When is a judgment enforceable?... 87 5
Pre- emptive strikes by judgment creditor... 88 Gathering relevant information / Learning about the judgment debtor s assets... 88 Judgments for the payment of money... 89 Enforcement of appeals... 90 Part 50 of the UCPR... 90 Exam Structure... 93 Revision lecture... 94 Important legislation to know about... 96 6
Lecture 1 Introduction to Civil Practice and Procedure, Jurisdiction and Guiding Principles About the reflective statement: Talk about a topic learnt (e.g. reading, something I ve listened to, etc.) Reflect on it how does it inform your understanding of this course. Which graduate attribute has been targeted in that activity. What is this subject about? What lawyers have done wrong. E.g. After the cause of action has occurred and there s an appeal not on the merits of the case but on the way the case was submitted/initiated within the procedure. Ties in all the different areas of law and looks at how all these areas are actually represented/pleased in the case and how they have affected the rights of the client. How the client may have been too restrictive. Assist us in becoming familiar with rules of civil litigations in NSW. Civil Procedure Act streamlines the process so that the statement of claim is the same in all different courts. However, there are still special notes in each court which have specific rules related to that court (but there are not many). Stages: 1. Pre- litigation 2. Initiating proceeding 3. Interlocutory proceedings 4. Hearing/trial stage Amongst all these proceedings we have different rules which are defined in parts (specifically 14-15 of Uniform Civil procedure rule) Legislation which will be used: Federal court of Australia Act Civil Dispute and Resolution Federal Magistrates Act 1999 The Constitution NSW legislation: Civil procedural act 2005 7
Uniform procedure rules 2005 Legal professions act At times supreme court, district court and high court acts. Substantive law - defines duties, legal rights, powers and liabilities. Procedure law method by which rights are sought to be enforced (at least as important as substantive law at times even more important). Civil Practice and Procedure: Federal statutes NSW statutes Civil Procedure Act 2005 (NSW) Procedural versus Substantive Law Jurisdiction: Definition Types of jurisdiction NSW courts - hierarchy Other courts and tribunals Commonwealth jurisdiction Cross- vesting Service defines the jurisdiction Guiding principles: s 56 overriding purpose just, quick and cheap s 57 objects of case s 58 dictates of justice s 59 eliminating delay 8
s 60 costs proportionate to subject- matter s 61 court s discretion to make directions Just, quick and cheap 9
Lecture 2 Pre- litigation and Case Management Relevant Topics 1. Pre- litigation requirements 2. Requirement to attempt resolution before litigation 3. The Rules in NSW 4. Court Adjudication in the Civil Justice System 5. Case Management Relevant cases Queensland v JL Holdings (1997) 189 CLR 146 AON Risk Service v Australian National University (2009) 239 CLR 175 Re: HIH Insurance Ltd [2007] NSWSC 498 Mastronardi v New South Wales [2007] NSWCA 54 Rayscan Management Pty Ltd v Siv Nandan Moodliar [2008] NSWSC 857 Deveigne v Askar (2007) 69 NSWLR 327 City of Sydney Council v Satara [2007] NSWCA 148 Phornpisutikul v Mileto [2006] NSWSC 57 Pre- Litigation Requirements Part 2A of the Civil Procedure Act 2005 (NSW) Now repealed but still useful. Principles behind it still useful in litigation. Judges still push for us to have the requirement of ADR. Not law but still need to learn as the form and substance of these sections are still highly sought after by judges. Part A was going to be: Duty to take reasonable steps to resolve the dispute or narrow issues in dispute. S18(e)(1). This is a federal requirement. If proceedings have started the plaintiff must submit DRS statement claim. Outlines steps that were taken to resolve the dispute. If there were no steps taken, need steps to explain why it didn t happen. Statement claim Defendant submits dispute resolution statement. Federal pre- litigation requirement. Exists as of august 1 st 2011. Object of the act is to encourage parties to taken genuine steps to resolve certain civil disputes before commencing in federal court of magistrates courts (circuit court). Called a genuine steps statement. 10
Note different terms for state/federal: NSW DRS Federally - GSS Requirement to attempt resolution before litigation Civil Dispute Resolution Act 2011 (Cth) Imposes a duty to take reasonable steps to resolve the dispute or narrow issues in dispute. Having two different jurisdictions makes it hard to meet procedural fairness. The state jurisdiction is working really well so it would be hard to repeal it. The Rules in NSW S10(1) rules of courts are to be taken to include the uniform rules to the extent which they are applicable in that court. Does not authorise the judge to amend or appeal a uniform rule in that court. S11(1) Uniform rules prevail over any to the extent of any inconsistency between them. Concept of the rules and the parts S10 and 11 give us the power as people using uniform procedural rules to apply them to sections of the civil dispute resolution act. Part 2 and 3 case management Part 4 Filing and case proceedings. Court Adjudication in the Civil Justice System Selected Materials on Civil Practice Part 1, Chapter 1 Judge made law General principles Legislation Legal reasoning Trial is a distinct event Court has strict rules Oral argument 11
Judges make decisions At the parties expense Case Management What is case management? o Conscious decision of the courts and legislate to overcome unacceptable delay and costs and promote the civil legal system and as administrator of justice for all. Involves the obligation to involve in case management and case preparation. Imposes a duty of requirements on parties to exchange documents and information within a certain time period. Also important that there are different tracks/sources of cases. One of them is the promotion of ADR. Sanctions available for sticking out. Why is it necessary? o Important because self- interested parties and practitioners have led to the dual problem of lengthy delays and increasing costs. High rampancy of very wealthy people taking actions. Not many people were taking actions in small claims. High rampancy of game plans been done between different legal cases. Cost became higher. Transparency to public was shut. Perception of legal system as being unfair. o Has it changed the perception? Yes it has civil procedure act assisting it in making it fairer. In area of commercial law it has become fairer easier for smaller parties to be able to initiate actions and defend their rights. For small claims. However, in terms of administrative law/other forms of civil law it hasn t become fairer but has become more cost effective. o Concept for lawyers: Fair procedure make loosing more acceptable. Ethos of new act and new rules. Objects 1. Just determination of proceedings. Occurs by way of the different parts/rules of the uniform procedure act which allow (and in most cases compel the judge) to ensure that the proceedings are undertaken and measured by the object of case management, by the way the case is pleaded (part14/15). 2. Efficient disposal of objects of the court. It is part of the cheap/efficient part of 56 and the due process part of 58 of the act. Because we now have part 10,14 and 15 of the uniform procedure rules we must ensure that the way we take actions through our interlocutory process is not tattered out to the business of the court. Oral submissions now cant occur without written submissions. No element of surprise, ambush. The court scrutinises everything that is admitted and can approve or disapprove of an action if it has not followed the proceedings. 3. Efficient use of court time and resources. The cost associated with a lot of these forms is expensive (deliberate because court is saying to potential litigant that unless you have a reasonable case to answer the cost of it will be 12
surmountable). Discretion the court has for allowing dismissal, striking- out, etc is deliberate to ensure the matters are genuine and cost effective. Is that dangerous? Yes, element of efficiency over access so that the policy doesn t meet the actual objective. However, could argue other way. 4. Timely disposal of proceedings (s59). Looking at not only the sections of the act/rules but the way the judges have discrepancy to ensure that the process is timely and cost effective. 5. Affordable processes. If we are entering into a corporate matter it is cost effective (because they are tax deductable). However, if talking about individuals and small business is not affordable because it is not tax deductable (minimum of $80-120thousand). 6. Elimination of unnecessary delay. Queensland v JL Holdings (1997) 189 CLR 146 AON Risk Services v ANU (2009) 239 CLR 175 Directions o First aspect = the power to direct parties about the conduct of the matter. o CPA and the UCPR require the practice and procedure of the courts to be implemented with the objects in mind. These directions are made at what can be called a directions hearing or a status conference. Courts have the power to direct parties, they have the power to do anything they think fit for these speedy determinations of real issues between the parties. o To take specified steps in relation to the preparation and progress of the proceedings. o To comply with timetables and to conduct proceedings as required by courts. o Process = you are involved in initiating and proceeding. Fill out a statement of claim, write pleadings in S of C, file it. Court sens you a notice that it has been filed and tells you the defence has a certain period to response. Defence responds. Date for the hearing (has to be less than 4 months after the document is filed). Attend directions hearing before the judge and both parties will talk about their statements of claim. At this stage, the judge asks if they want to amend statement of claim. If they say yes judge asks why and say how long they have. Directions hearing judge is directing you at to what the next phase is and they set the date of the formal hearing. The matter is addressed at the formal hearing. The court requires that the hearing must not be issued more than 12 months after the directions hearing (but each court is different). o Where does this power comes from? Commencing proceedings. Slides online. Practice notes 13
Lecture 3 Case Management and the Overriding Purpose Notes from textbook Overview The last two decades have seen a move away from adversarialism and party control of litigation as the dominant paradigm of civil procedure to a system where courts control the progress of individual matters in their lists by the use of case management practices. Case management has been facilitated by the development of overarching purpose provisions, that is, legislation and court rules that allow the courts to interpret procedural rules and individual orders to promote an overriding purpose. Chapter 2 p.29 textbook. o NSW has incorporated a civil procedural act like other state and territories. o However, the focus is different in different states. o E.g. some state take a more justiciable approach while some take a more due- process approach like NSW, SA. Enforcement of case management sanctions and the interpretation of the overriding purpose provisions have led to an approach where a court will take into account interests beyond those of the immediate parties to a proceeding where exercising its power. Development of so- called managerial judging which shifted focus away from the judge as referee under a party- controlled system to the judge as a manager of litigation. Distinctive features of different types of case management exemplified in individual courts. Case Management Bare in mind the concept of party to party control of litigation. Decision making process pre- CPA and UCPR. Justice from individual perspective. Party- party. o Queensland v JL Holdings Pty Ltd (1997) Concept of justice. NOW = case management. o Procedure of exercising the overriding powers and the guiding principles of the UCPR and UCA in NSW has not become a part of the proceedings in exercising its power. o If a submission comes before the court it s not just the content that the courts take into account when reasoning, they are also looking at the rules, looking at sections of the acts in making their decisions. The extent to which they take that into account depends on the facts and the way they interpret. 14
o AON Risk Service v Australian National University (2009) justice is not the paramount issue in making the decisions, as part of decision process the CPA and UCPR come into place. Different types of case management exemplify in different courts provide different pathways in which case management occurs in different jurisdictions. Concept of due process to due progress. Role of the judge Still have adversarial system where both parties present their case, the judge is independent arbitary of the case, submissions are hear, evidence is adduce and judge makes decision. BUT unlike what lord Denning LJ (in Jones v National Coal Board [1957])suggests the objects above all is to find the truth, the judge according to its lordship view is to remain a passive spectator until giving judgment. I.e. the power of the judge to find the court is dependent upon the parties presenting relevant/enough evidence before him/her. o Judge like an umpire. o Judge does not intervene in the preparation of the case or the presentation of a case, rather the parties plan the preparatory steps which lead to a climactic and self- contained trial. NOW in our jurisdiction it s different = the role of the judge is to consider the most effective means by which a party to party action can be delivered. In NSW still have strict adversarial approach but judges are now more and more conferring upon undertaking mediation or things like that to see whether the matter can be dealt with expeditiously in ADR for example. Not just adversarial but also in some jurisdictions, encouraging ADR, meeting with the litigants before and after the trial judges are playing a critical role in shaping the litigation and influencing the results. Managerial judging Broader role in civil litigations. Judge not just responding as a passive umpire but is active in investigating the best way to define the dispute and decide the case. Caseflow management Case management is an approach to the control of litigation in which the court supervises or controls the progress of the case through its interlocutory phase. Definition of interlocutory = Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue. 15
Caseflow management = case management Progress of the case before the court. Objects of case management includes: o Early resolution of disputes o Reduction of trial time o More effective use of judicial resources o Establishment of trial standards o Monitoring of case loads o Developments of information technology supports o Increasing accessibility to the courts o Facilitating/planning for the future o Enhanced public accountability o Reduction of criticism of the justice system by way of reasoned Supreme court has taken that further by ensuring judges have reduced decision i.e. must make decisions in a certain/short time. Other objects: o Court consultation with the legal profession/ court progress o Use of standards and goals o Monitoring information system o Listing of credible dates o Strict control of amendments, adjournments, dismissals and striking out. From state perspective haven t taken all of these objects, taken a few of them. o Created our own overall purpose Each state has its on way of adopting these case flow management. Models of management Directions assist us in case management. Directions hearings o The most effective use of management in NSW is the way in which commencement proceedings are dealt with by the registrar of the case and then by the associate judge. o Regime in NSW minimises the amount of further possible of interlocutory exchanges that could happen. o Federal court has a different system called the individual docket system. Very good system Adopted in all federal court registries. Each case allocated to particular judge, don t have an associate judge, hears the matter straight away. Rationale = preferable for one judge only to make decision about the issues and to establish continuity form the pre- trial to trial phases of a proceeding. General principles underline this individual docket system. In this process the judge is responsible for management of the whole case until its final decision. 16