UTS LAW CIVIL PRACTICE LECTURE, TUTORIAL NOTES SUMMARY NOTES FOR EXAM CASE SUMMARIES 1
Civil Practice SUBJECT NOTES Contents COURSE ADMIN... 4 Themes of this course... 4 Assignments... 4 Assessment Task Reflective Statement... 6 LECTURE 1... 8 Introduction... 8 Jurisdiction and Guiding Principles... 8 Pre-litigation and Case Management... 9 Key cases... 9 TUTORIAL 1... 13 Plaintiff s Chronology... 13 LECTURE 2... 15 Litigation Technology... 15 Case Management and the Overriding Purpose... 26 TUTORIAL 2... 30 LECTURE 3... 31 TUTORIAL 3... 34 LECTURE 4... 35 TUTORIAL 4... 39 LECTURE 5... 40 Initiating Proceedings: Commencing Litigation... 40 TUTORIAL 5... 50 LECTURE 6... 52 TUTORIAL 6... 58 LECTURE 7... 59 TUTORIAL 7... 64 LECTURE 8... 67 TUTORIAL 8... 74 LECTURE 9... 75 DISCUSSION BOARD QUESTIONS... 80 2
Q Strikeouts... 80 Q Notice to produce v general discovery... 80 Q: Case notes... 80 CPA & UCPR... 82 CPA... 82 56 Overriding purpose... 82 57 Objects of case management... 83 58 Court to follow dictates of justice... 83 59 Elimination of delay... 84 60 Proportionality of costs... 84 61 Directions as to practice and procedure generally... 84 Uniform Civil Procedure Rules... 86 Part 2 & 3 Case Management... 86 Part 4 Preparation & Filing of Documents... 88 Part 6 Commencing Proceedings & Appearance... 88 Part 10 Service... 91 Part 12 Discontinuance, Withdrawal, Dismissal & Setting Aside... 93 Part 13 Summary Disposal... 94 Part 14 Pleadings... 94 Part 15 Particulars... 97 Part 16 Default Judgment... 99 Part 18 Motions... 100 Part 19 Amendments... 100 Part 20 Resolution without hearing... 100 Part 31 Evidence... 103 Part 33 Subpoenas... 106 Part 35 Affidavits... 108 Part 36 Judgments & Orders... 109 Part 39 Enforcements of Judgments... 111 Part 42 Costs... 113 Part 50 Appeals... 117 Part 51 Court of Appeal... 118 3
COURSE ADMIN Themes of this course The overriding purpose of the Civil Procedure Act 2005 (NSW) is the just, quick and cheap resolution of civil disputes. The rules of civil procedure sometimes seem inconsistent with a practitioner's ethical and professional duties to his or her client. Assignments Modern technology is impacting civil practice and disrupting the legal profession. Assessment Length Due Weighting Mid-session essay 2000 words max; with Draft: 2 May 30% self-assessment Final: 9 May Tutorial participation 20% & 10% (with self-assessment) & reflective statement Final exam multiple choice, case note/reflective statement & short answer questions 2hr 10min Exam period 40% NSW Civil Procedure Handbook is a useful tool How to access Ritchie s Guide to Civil Procedure law databases CASEBASE Commentary Browse Ritchie s Uniform Civil Procedure NSW Uniform Civil Procedure Rules All the parts are here Check this out for every rule you are studying 4
From first lecture The essay is worth 30% - due 9 May. You can submit drafts before 9 May to Turnitin. Must submit a self-assessment with the essay There are activities in the tutorials around self-assessment. Think about the marking criteria. Autumn and Spring feedback is available online from essays last year. You must form a view and support it with evidence (cases, articles) and deliver submissions! 2 minute reflective presentation needs to be articulate and well-paced. Rhetoric / discourse / intellectual shift- ie I though X, I read Y, I now know Z; can reflect on anything in the lectures. Critical insight into what it was, and which of the graduate attributes were fulfilled. Textbook: M Scott, P Alexander & P Ryan (eds), Selected Materials on Civil Practice (2nd edn) (LexisNexis Butterworths, 2015). 5
Assessment Task Reflective Statement The themes of this course are: 1. the overriding purpose of the Civil Procedure Act 2005 (NSW) found in s 56; 2. the impact of technology on legal practice; and 3. ethical issues arising from the clash between professional obligations and the Rules. Your reflective statement needs to be based on one of these themes. These themes should inform your Reflective Statements. You should give an impression or conclusion you have arrived at as a result of thinking about these aims. A Reflective Statement is a learning tool that makes you think about and articulate what, how and why you learn. A Reflective Statement discloses not just what has been learned, but what has been understood. A good Reflective Statement will link what has been learned to one of the six UTS Law Graduate Attributes. No more than 2 min. The sweet spot in the marking guide is the period of time between 1:30 1:50 Structure Describe the source material of your reflection. o Which database o The search terms o How did you refine your search further? How did you narrow your search to the most important / informative articles o You might have a novel research method that gets the tutor s attention Articulate what you learned from the source material. State clearly and in formal language how your thinking has been challenged or informed. Identify which Law Graduate Attributes1 have been targeted. Delivery Reflective Statements should be written in formal language. Read them out loud to the class. Do not hand them in. You will receive immediate and constructive written feedback. Each Reflective Statement should take no more than two minutes to read out. Most important part: reflection upon how your research changed or supported your thinking. 6
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LECTURE 1 22 March 2016 Readings Case Reader Queensland v JL Holdings (1997) 189 CLR 146 AON Risk Service v Australian National University (2009) 239 CLR 175 Legislation Civil Procedure Act 2005 (NSW) ss 56-61 Reading Topics Scott, Alexander & Ryan (eds), Selected Materials on Civil Practice (2015): o Reading 1 Jurisdiction o Reading 2 Development of the Overriding Purpose Introduction Jurisdiction and Guiding Principles Pre-litigation and Case Management Introduction What is Civil Practice? Why is it so important? Case management and the overriding purpose Practice and Procedure Jurisdiction and Guiding Principles Definition of jurisdiction Different types of jurisdiction NSW courts and their hierarchy Other courts and tribunals in NSW Commonwealth jurisdiction Cross-vesting Service 8
Section 56 61 of the Civil Procedure Act 2005 (NSW) Pre-litigation and Case Management Part 2A of the Civil Procedure Act now repealed Requirement to attempt resolution before litigation Civil Dispute Resolution Act 2011 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Court adjudication in the civil justice system The three themes in this course Key cases Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 This case was heard before the enactment of the Civil Procedure Act Practice Pleadings Amendment Case management practices Whether leave to add arguable defence may be refused on case management grounds Prejudice Compensation by costs. Facts The parties were engaged in a long running commercial dispute concerning a lease to develop certain land. The estimated length of the trial was four months. After a number of interlocutory hearings and several amendments to the defence, the defendants applied again to amend their defence. All but one of the amendments were allowed. Keifel J in the FCA refused leave to add a defence which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead. The judge considered that maintaining that date was a more pressing consideration than a party's right to present a further defence. Held That while case management principles were a relevant consideration, they could not be used to prevent a party from litigating an issue which was fairly arguable. A party should be permitted to raise an arguable defence provided any prejudice to other parties could be compensated by costs. Dawson, Gaudron and McHugh JJ It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. The majority emphasised that the primary judge, Kiefel J, was the trial judge, had been responsible for the management of the present case since 1994 and was in the best position to judge the effect 9
of the proposed amendment. Even so, the application for leave to amend was made before a date was fixed for hearing. The date when fixed was six or so months ahead. It is not apparent that any complex issues of fact are raised by the amendment sought, but even if they are, in a hearing that is estimated to last some four months, they must surely be able to be accommodated. The fact that the new defence which the applicants seek to put in issue may possibly be met on reply by a plea such as that of estoppel or waiver does not suggest any reason for the refusal of the amendment. Moreover, whatever the state of the pleadings, the point which the applicants seek to raise by the amendment may not be avoided on trial if, as seems to be so, it would be apparent from the documents themselves. The purpose of the amendment was, according to the applicants, merely to avoid taking JLH by surprise. But if the amendment sought does raise a new defence and not merely a matter which JLH is required to prove in any event, it constitutes a substantial, if not complete, answer to JLH's claim. If it is arguable, the applicants should be permitted to argue it, provided that any prejudice to JLH might be compensated by costs. No doubt prejudice to JLH may also be averted, as Carr J in dissent in the court below pointed out, by appropriate orders expediting such procedures as the parties might seek to employ as a result of the amendment. In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion. AON Risk Service v Australian National University (2009) 239 CLR 175 This is a very important case in this subject. paras 31; 95-98; 140 overriding purpose of civil procedure act Practice Pleadings Amendment Case management principles Whether leave to amend to add arguable claim may be refused on case management grounds Prejudice Compensation by costs Court Procedures Rules 2006 (ACT), rr 21(2), 501(a), (c), 502(1) Facts Rule 21(2) of the Court Procedures Rules 2006 (ACT) provided that the rules were to be applied in civil proceedings "with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties". Rule 501 provided that "all necessary amendments of a document must be made for the purpose of (a) deciding the real issues in the proceeding; or... (c) avoiding multiple proceedings". Rule 502(1) provided "at any stage of a proceeding, the court may give leave for a party to amend... an originating process... a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate". On the third day of the four-week trial of a proceeding that had been on foot for two years, the plaintiff applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant. 10
Held 1. That, to be regarded as a real issue for the purposes of r 501(a), and for amendment therefore to be necessary, the relevant dispute or controversy had to exist at the time of the application. Cropper v Smith (1884) 26 Ch D 700; Tildesley v Harper (1878) 10 Ch D 393; O'Keefe v Williams (1910) 11 CLR 171[PDF], referred to. 2. That, when considering whether an amendment was necessary to avoid multiple proceedings under r 501(c), the court was entitled to consider whether reasonable diligence on the part of the moving party would have led to the bringing of the claim in the existing proceedings, so that any further proceedings might be barred on grounds of abuse of process or estoppel. 3. That amendments raising entirely new issues fell to be considered under the general discretion given by r 502(1), read with the objectives outlined in r 21(2). A party did not have an entitlement to amend a pleading, subject to payment of costs by way of compensation. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants the concerns of case management would assume importance on an application for leave to amend. Relevant matters would also include the nature and importance of the amendment to the party applying, the stage the litigation had reached when the amendment was sought, and the explanation for any delay in applying for amendment. Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Sali v SPC Ltd (1993) 67 ALJR 841; 116 ALR 625; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894, approved. Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154-155[PDF], disapproved. French CJ It appears that a factor in the decision of the primary judge and of the Court of Appeal was the decision of this Court in JL Holdings. That case arose out of an entirely different factual setting. However, to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative. It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. Gummow, Hayne, Crennan, Keifel and Bell JJ The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in JL Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment 11
implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others. An important aspect of the approach taken by the plurality in JL Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment192. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute193. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in JL Holdings in mind194. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. 12
TUTORIAL 1 29 March 2016 Pre work: Draft a chronology based on Ted Smith s Witness Statement Introductions Smith v Jones chronologies based on Ted Smith s Witness Statement Buzz group discussion re just, quick & cheap Plaintiff s Chronology Players Plaintiff Defendant Edward (Ted) Smith Paula Jones Guide to acronyms WS TS PJ Witness Statement Ted Smith Paula Jones Date Event Ref 1999 TS sets up financial services business WS TS at [1] Prior to May 2010 May 2010 TS separates from wife WS TS at [3] TS meets PJ (conference and party planner) at a financial services industry junket on the Gold Coast and exchanged details WS TS at [2], [4] June TS & PJ keep in touch mainly via email and text WS TS at [5] September 2010 October 2010 PJ tells TS she has ended her relationship; attend function together; WS TS at [6] start seeing each other all the time July 2011 TS and PJ move into a rental property in Haberfield WS TS at [7] February 2012 PJ quits job to study architecture full time at Sydney University WS TS at [8] June 2012 Federal Police attend TS office in Leichhardt and seize records and WS TS at [9] computers with search warrant. July 2012 ATO commence proceedings against TS WS TS at [9] July-November 2012 15 November 2012 About November 2012 TS practice stalls during ATO proceedings WS TS at [10] TS & PJ enter into domestic relationship agreement WS TS at [11] Purchased house in Haberfield with repatriated funds from a Cook Islands trust account WS TS at [10] 13
Date Event Ref 30 November 2012 December 2012-July 2013 August 2013 Around December 2013 Registered house in PJ s name WS TS at [12] TS gives PJ ~$200,000 from Cook Islands trust account to pay her expenses including son s school fees, uni fees and other expenses TS asks PJ to marry her; PJ says yes; TS gives PJ his grandmother s engagement ring PJ allegedly meets someone else at Christmas party (TS thinks this occurred much earlier) WS TS at [13] WS TS at [14] WS TS at [15] January 2014 TS finds out PJ is seeing someone else WS TS at [15] June 2015 TS seeks legal advice to obtain grandmother s ring, $200,000 and the house in Haberfield to be transferred WS TS at [16] Similar timelines Separation of points within months Allegedly re date PJ starting seeing someone else. Class exercise 2 minute submission in support of the following proposition that supports the idea of a just, quick and cheap resolution of real issues in dispute In civil trials, parties must produce to each other all documents on which they intend to rely at least 7 days prior to the commencement of a trial this will help to achieve the overriding purpose under s56 of the Civil Procedure Act of just, quick and cheap resolutions JUST o o o QUICK o o o o CHEAP o Production of all possible documents allow lawyers to develop the best argument for the case up front Avoid procedural tactics By reducing time and stalling, more just for all by increasing available access to the legal system Reduce adjournments Nothing else that comes will be relevant Prevent potential irrelevant work via interaction between particular documents Evidence restricted Reduce billable hours done all in one hit 2012 FCA 282 first 10 and last 2 paragraphs interesting expose of your obligations as legal practitioners in the just quick and cheap resolution of matters 14
LECTURE 2 29 March 2016 Reading Articles and practitioner materials ADR Explained. Retrieved from NSW Bar Association website, 2014. http://www.nswbar.asn.au/briefing-barristers/adr/explained What are the advantages of Mediation? Retrieved from NSW Bar website, 2014. http://archive.nswbar.asn.au/docs/professional/adr/faq4.php Guidelines for Arbitrators in The Law Society of NSW Private Arbitration Kit (October 2012) Retrieved from The Law Society of NSW website, 2014. http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/674898.pdf Legislation Uniform Civil Procedure Rules 2005 (NSW) - Part 20 Reading Topics Scott, Alexander & Ryan (eds), Selected Materials on Civil Practice (2015): o Reading 3 Court-Annexed ADR o Reading 4 Case Management and the Overriding Purpose o Reading 5 Matching Disputes with Processes o Reading 12 Changes o Reading 23 Electronically Stored Information and Social Media o Implications for Discovery and Evidence o Reading 24 Discovery of documents and information technology Guest Lecture: Litigation Technology Case Management and the Overriding Purpose Litigation Technology This lecture is assessable, the materials in the text on technology in litigation, is not assessale. Just, Quick & Cheap in the Digital Age UTS Guest Lecture for Civil Practice Course Beth Patterson Chief Litigation & Technology Services Officer, Allens Overview Case Management Some History The World of Big Data 15
Practice Notes Views from Chief Justice Allsop ediscovery Reference Model Case Studies Current & Future Technologies Geek to Chic: Legal & Technology Careers Litigation and technology timeline 1998 Australian case Estate Mortgage first electronic court of any substantial size in Australia; landmark case; compared to today it seems small! Big Data Some Statistics iphone 6 / ipad Air - 64GB: 119,000 PDFs OR 14,150 songs OR 70.8 hours of film OR 38 Hollywood movies 1 Globally over 294 billion emails are sent daily. 2 10,000 payment card transactions are made every second around the world. 3 UPS tracks 16.3 million packages for 8.8 million customers with an average of 39.5 million customer tracking requests per day. 4 More than 5 billion people are calling, texting, tweeting and browsing websites on mobile phones. 4 16
500 million tweets are sent per day. Average of 5,700 tweets per second! 5 Facebook has more than 1.5 billion active users 6 At the end of 2015, less than 0.5% of all the data is analysed and used; 7 Big Data In Everyday Value of Big Data to Clients 17
Relevant Practice Notes What are the courts saying about litigation and how you should use technology? NSW Supreme Court PN SC Gen 7 1 August 2008 Supreme Court Use of technology Federal Court PN CM5 1 August 2011 Discovery NSW Supreme Court Equity Division PN SC Eq 11 26 March 2012 Disclosure in the Equity Division NSW Supreme Court Practice Note 1 Aug 2008 18
Federal Court Practice Note CM 5 Discovery 1 August 2011 19
NSW Supreme Court Practice Note No.SC Eq 11 - Disclosure in the Equity Division - 26 March 2012 The first practice note which said don t do discovery evidence goes on first. Chicken and egg situation! May cost more in the end. There are some circumstances the courts have seen to be exceptional eg where party is at disadvantage. Judges think it saves parties cost has it actually worked well? Depends on the circumstances and nature of the case (in Beth s opinion) Chief Justice Allsop Judicial Case Management and The Problem of Costs 9 September 2014 Discusses the ongoing debate in the market around case management; need for judicial management and case management. Case management does not necessarily reduce the costs of litigation. Early case management may front load costs. 20