Civil Procedure Lecture Notes

Lecture 1: Introduction to Civil Procedure

Key Terms

-Civil Disputes

-Any legal dispute that is not a criminal dispute

-Could be either public or private law matter

-Includes ‘relatively minor’ matters

-Dispute: is a disagreement about specific issues or about isolated actions and or inactions

-Has to be a specific disagreement, contrast with conflict which generally has more emotive issues covering a range of issues

Civil Justice System

-The institutions and services that assist people to resolve civil disputes and prevent disputes from arising

-Combination of institutions and individuals authorized by the state and resolve disputes and in so doing set and enforce standards of behavior for those belonging to the state

It Includes:

-Laws and Legal Frameworks

-Services that provide information and advice in relation to legal problems and events that people might experience, including informing them of their legal rights

-Providers of legal and related services, including legal advice, assistance, advocacy, dispute resolution and representation

-Primary decision makers/public officials (including ministers) making decisions affecting rights

-Partially or wholly government funded dispute resolution services that help people negotiate their own solutions such as family relationship services

-Complaint handling bodies e.g. ombudsman

-Tribunals

-Courts

-Bamford: Courts and Tribunals, Wholly or partly funded state dispute resolution services, Private services not financed by the state but recognized by the state

Purpose

-It is the method by which the state- the government enforces the legal rights and obligations of the citizens. It secures justice and keeps the peace by enforcing the civil law and imposing the will of the state on disputing parties – Gleeson CJ

1. System by which people may vindicate rights

2. Resolve their disputes under the auspices of the state

-Essential component is access to justice – system must be

-Equally accessible to all

-Lead to results that are individually and socially just results

-The purpose of the system is for courts to provide equal justice for all according to law impartially, fairly, without unjustifiable delay and with minimum but necessary use of public resources (Moynihan Report)

-Justice has a civilizing effect upon power whether that power be formal informal official or unofficial public or private: Gleeson CJ

What is Civil Procedure

-Constitutes the mechanism of the system for the administration of civil justice

-Rules procedures and practices governing the process of the determination/adjudication and enforcement of civil disputes

-Has an impact on substantive legal rights

-Supreme Court, District Court and Magistrates all apply the UCPR (subordinate legislation which is essentially set by Judges)

-Practice directions which add to UCPR made by the Court’s pursuant to powers given by legislation or under the Court’s inherent jurisdiction

-Superior courts have the ability to regulate processes to promote and do justice

How are Civil Disputes Resolved

-Lack of comprehensive data as to how civil disputes are resolved, goes back to scale of civil justice disputes

-Generally most people will take action in relation to civil disputes, possibly because there are many minor disputes

-When people did take action only small amount sought help from legal advisors

Different Methods of Resolution

-Formal Justice: Adjudication or resolution through court or tribunal

-Informal Justice: Resolution through bodies and institutions given power or recognition by government

-Everyday Justice: resolution by the parties

-Most disputes are resolved outside of courts

-Cost and time seem to be the biggest reasons for people turning to ADR

-Byrne J: fewer than 3% of civil cases filed in the Supreme Court are determined by judgment after trial

-About 1/3rd of matters are resolved without a notice of intention to defend and defence

-Good client care involves understanding different options for resolving civil justice disputes

-Professional responsibility includes advising as to other options beside formal justice

Overview of Civil System

-Magistrate/Local Court (original jurisdiction) District/County Court (original jurisdiction) Supreme Court (original jurisdiction) Court of Appeal/Full Court of Supreme Court (Appellate Jurisdiction) High Court of Australia (Appellate Jurisdiction)

-Federal Magistrates Court Federal Court of Australia Full Court of the Federal Court High Court of Australia

-When you commence proceedings you are using the coercive power of the state to achieve justice. There is not full cost recovery for this service

Overview of Civil Proceeding

-Commence Proceedings Service Notice of Intention to Defend (default judgment) Pleadings Disclosure and Interrogatories Early Adjudication? ADR/ Settlement negotiation (can occur at any point) Trial Appeal? Costs Enforcing Judgment

-Using the coercive power of the state to resolve a dispute

-State does not recover its actual costs in providing the court, judge, court staff etc

Traditional Adversarial System

-Justice is achieved by giving parties an adequate opportunity to fully investigate claims and then having this adjudicated (define dispute, produce evidence, present at trial)

-Controlled by parties

-Juries principally act as finders of fact

-Role of the Court is passive and non-interventionist

-Procedural requirements subservient to determination of substantive legal dispute between the parties

Criticisms

1. Expensive: Not in relation amount paid to court2. Too slow in bringing cases to a conclusion (generally pace is set by parties, procedure can be

used as a weapon)3. Lack of equality between wealthy and well resourced litigant and under resourced litigant4. Too adversarial 5. Rules of court too often ignored by parties and not enforced by the courts

Recent Reforms

-Greater court control over the conduct of litigation – case management

-Movement towards minimizing the use or courts and adjudication to finalize cases

-Near removal of jury trials

-Addition of professional obligations on lawyers

Case Management

-Rationale is to: reduce cost and delay; ensure avenues other than trails for resolution before trial

-Benefits the parties by stopping one party using Court processes as a weapon in determining disputes

-It may assist the parties to understand legal rights and obligations better, usually there are processes for case review,

-Courts are publically funded institutions, reducing the costs involved reduces the costs put in by society

-Introduce court role in determining the pace of litigation

-Rules and or practice directions set up management scheme

-Different models in different jurisdictions

-Parties still control issues and evidence

-Ensures that cases are less likely to be pulled out the day before trials scheduled

Case Management in Queensland

-Rule 5 of the UCPR(1): Purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense (to the parties and the Court)

(2): Accordingly these rules are to be applied by the Courts with objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules

(3): In a proceeding in a court a party impliedly undertakes to the court and other parties in an expeditious way

(4): The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court

-This rule is used to interpret the rest of the rules in the UCPR, as a result of rule 5 specific case management directions have been applied

-Courts have made it clear that parties do not have an inalienable right to a hearing on all issues on the merits de Jersey CJ

Directions: Either party can apply for or court may make at any stage of proceedings rule 366, 367

-Parties can consent to participate in ADR or court may order it

-Rule 469: Proceedings set down for trial after a request for trial date signed by all parties filed (extra requirements for personal injury). This allows one party to push another towards trial

-Practice direction 4 of 2002 ‘Case flow management – civil jurisdiction’: Requires a plaintiff to file an affidavit of service if there is no defence filed with 30 days the registrar can write to the party and demand. Request for trial date not served with 180 days of defence being filed registrar will press for a date

-Matters that are estimated to last more than 5 days or more can be placed on the supervised case list: Practice direction 6 of 2000. Parties can either ask for or judge can refer, only deals with pre-trial matters, sets up regular review hearings. If a direction is made at a hearing and a party fails to comply can have part of the proceedings struck out, listed for hearing etc.

-Practice Direction 3 of 2002: ‘Commercial List’ (amended by practice 2 2008) Commercial cases are described at length have to be of 10 days or less

-Practice direction 3 of 2010 ‘Commercial lest: District Court’: Assigns an individual judge to the matter from the beginning

-District has more limited case management principles, it doesn’t have the range of case management schemes the Supreme Court has

Failure to Comply

-Raises potential conflict between traditional adversarial concept of justice (giving parties adequate opportunity to fully investigate and present their claims) and efficiency cost effectiveness and timeliness

-i.e. Amending pleadings on the verge of trial to plead new claims etc. Generally justice was always the primary concern; awarding costs for such activities requiring trial dates to be vacated will have to pay costs

-State of Qld v JL Holdings Pty Ltd 1997:

-6 months before trial after the close of pleadings Qld. sought to amend its defence, which was refused by Kiefel J in the Federal Court as it may jeopardize the trial dates which had been set

-The High Court overturned this decision: Cases need to be determined on merits and only in exceptional circumstances should case management procedures outweigh this. Reversion to a traditional adversarial model

-“Justice is the paramount consideration in determining an application such as the one in question. 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 determination of an issue between the parties”

-This decision looked at justice for the parties, as result for a long time it was hard to argue that a party should not be able to amend pleadings, or there should be significant sanctions on their substantive claim

-AON Risk v ANU

-Unanimous judgment Related to Canberra Bushfires, property was destroyed and ANU took action against insurer and insurance broker. Matter was set down for 4 weeks after first couple of days ANU settled against Insurer. ANU then sought to amend pleadings against the broker ok in the middle of the period set out for the trial. The judge allowed the issue to be debated judge then took 4 months to release judgment.

-High Court was not impressed by this. Justice is not the just needs of the parties but to the public as well. “Speed and efficiency in the sense of minimum delay and expense are seen as essential to a just resolution of the proceedings. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment

-regard to use of public resources, the rights of other litigants, how the public views lengthy delays in court matters

How effective is Case Management

-Some evidence that it is effective in reducing time to conclusion

-Some data in the US suggests it may increase costs to the parties

-It is rarely acknowledged that cost and delay prevent the civil justice system from being overwhelmed, This is an unpopular idea. Equally I have never seen any attempt to estimate the number of courts and judges that would be required if these barriers were miraculously removed

-Minimizing use of Courts

-Diversion of some cases away from the courts to other bodies

-Industry ombudsman

-Quasi-administrative schemes e.g. personal injuries or workers compensation which essentially provide barriers and hurdles to litigation

-Specialist tribunals such as QCAT

Change in the Role of Lawyer

-In traditional adversarial model of civil litigation, the role of the lawyer was partisan even though duties to client (i.e. representation, to act on instructions and duty to continue to act) have always been subject to overriding duties to court and administration of justice

Lecture 2 Jurisdiction

Procedural Questions

-Whether proceedings should be commenced

-If yes, which court/courts have jurisdiction

-If more than one court has jurisdiction which court is the most appropriate court to commence proceedings in

Criticism of Traditional Adversarial Model

-Expensive

-Too Slow

-Lack of equality between wealthy and under-resourced litigants

-Too adversarial

-Rules of court often ignored

-Is there an on-going commercial relationship, or friendship

-Reforms to adversarial models have removed some problems but has not made it a cheap or fast system

Ongoing Problems with Litigation

-Still expensive

-Unpredictable in terms of outcome

-Difficult; time consuming, adversarial, physically and emotionally distressing

-Only provides adjudication of the legal issues

-Attempts to resolve these issues have revolved around changes to the role of the lawyer, from hired gun to dispute resolution

-Duty to advise client about alternatives to litigation

-Good client care i.e. ongoing business relationship that needs to be preserved aggressive litigation may not be the best method

-Future statutory obligation that effectively require parties to make reasonable attempts to settle before commencing proceedings (exists in NSW and in Federal Court)

-The policy rationale for statutory attempts to settle reduces strain on the system and public resources, might also actually be better for the people involved

Mediation

-Third party assists parties to identify issues, develop options consider alternatives and try to reach agreement third party has facilitative role

Conciliation

-Third party assists party to identify issues, develop options consider alternatives and try to reach agreement

-Conciliator has advisory not adjudicative as well as facilitative role

Arbitration

-Parties present arguments and evidence to an independent expert who makes determination

-Most commonly used in commercial, construction, labour and international trade disputes

Factors to consider Before ADR

-What is in dispute (what type of claim is being made, complexity of the claim, more than legal aspects of the conflict)

-Conflict management history between the parties

-The client’s priorities and the reasons for those priorities (on-going commercial relationship)

-Attitudes and capacity of the parties (if one of the parties does not want to participate there is no point)

Jurisdiction Generally

-Jurisdiction: refers to the limits upon the matters a particular court is capable of hearing ‘The authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decisions’ Wardley Australia Ltd v WA

Territorial Jurisdiction

-A court’s jurisdiction can be limited territorially

-In personam jurisdiction founded by capacity to serve the originating process, presence in the territory (Laurie v Carroll), Service and Execution of Process Act 1992

-Submission to the jurisdiction by filling an unconditional notice of intention to defend and express agreement in a contract that a particular court will have jurisdiction

Subject Matter Jurisdiction

-Most courts have an original jurisdiction and an appellate jurisdiction

-Original jurisdiction is where the court is acting in the first instance to determine a matter to the first time

Appellate Jurisdiction: Is where the court hears and determines an appeal from a decision of a lower court or in Superior courts from a decision of the Superior Court in its original jurisdiction

Federal vs State Jurisdiction

-Commonwealth Constitution divides statutory power between Commonwealth and State

-Judicial power works in a similar way, gives specific power to the Commonwealth and rest to the states. Commonwealth can transfer jurisdiction to the states

-Non-Federal jurisdiction is determined by state Courts

-Federal Courts tend to have limited jurisdiction, no power for state courts to transfer state jurisdiction to federal courts: Re Wakim

-State courts will only have federal jurisdiction that Commonwealth Parliament gives them

State vs. Federal Jurisdiction

Baxter v Commissioner of Taxation

-State jurisdiction is the authority which State Courts possess to adjudicate under the state Constitution and laws

-Federal Jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws

Federal Jurisdiction

-The jurisdiction that a State or Federal Court has by virtue of Ch III of the Constitution

-Capital TV and Appliances Pty ltd v Falconer: 1) The jurisdiction conferred on the High Court by ss 73 or 75 of the Constitution

2) The jurisdiction Parliament confers on the High Court under s 76 of the Constitution or on some other Federal court under ss 71 77(i) of the Constitution

3) The jurisdiction which parliament invests in the State Courts under ss 71 and 77(iii)

-Federal jurisdiction vested in State courts will retain its federal character even when it is exercised by State Courts Felton v Mulligan

Subject Matter of Federal Jurisdiction

-Chapter III of the Constitution creates federal jurisdiction as to

-‘matters’

-Concerning the subjects set out in ss 75 and 76 of the Constitution: Phillip Morris v Adam Brown Male Fashions

Matter

-Matter is ‘the subject matter of determination’

-The legal right duty or liability to be established, can’t just be an advisory opinion or determinations of abstract questions of law, must be something in dispute. Declarations are not advisory as long as they given in relation to a ‘real interest’

-There is a controversy between the parties the quelling of which the judicial power of the Commonwealth must be invoked: Re McBain; Ex Parte Australian Catholic Bishops Conference

-Matter is broader than the legal proceedings

Subjects Set out in 75 and 76

-s75 HC has original jurisdiction in relation to matters

-Arising directly under any treaty

-Affecting the consuls or other representatives of other Countries

-In which the Commonwealth is a party or a person is suing or being sued on behalf of the Commonwealth

-Between states or between residents of different states or between a state and a resident of another state (Corporate is not a resident for this section Australian Temperance and General Mutual Life Assurance Society Ltd v Howe)

-Matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth

-S 76 of the Constitution provides the commonwealth Parliament can make laws conferring original jurisdiction on the High Court in any matter

-Arising under the Constitution or involving its interpretation

-Arising under any laws made by the Cth Parliament

-Of admiralty and maritime jurisdiction

-Relating to the same subject matter claimed under the laws of different states

-Section 75 and 76 identifies federal jurisdiction by characteristics such as

-The parties involved, (i.e. commonwealth is a party)

-Remedy Sought (Prohibition Mandamus or an injunction sought against officer of the Cth)

-Content (Interpretation of Cth Constitution)

-Source of the rights and liabilities in contention ASIC v Edensor Nominees (treaties or diplomats ASIC being a party)

-Not just disputes based on Commonwealth legislation

Jurisdiction of Federal Courts

-Cth parliament has power to create Federal Courts and to confer federal jurisdiction on those federal courts and any other courts s 71

-s 77 empowers Cth to make laws with respect to any matter in s 75 and 76 which can define the jurisdiction of any federal court except the HC, can also define the extent to which the jurisdiction will be exclusive to Federal Courts. Can make laws investing state courts with Jurisdiction including district or magistrates court

High Court

-Original jurisdiction: matters set out in s 75 of the Const. are part of the original jurisdiction

-s 38 of the Judiciary Act 1903 grants HC exclusive jurisdiction in relation to 1) matters arising directly under any treaty 2) suits between states or persons suing or being sued on behalf of states 3) suits by commonwealth against states, 4) suits by states against commonwealth 5) matters in which a writ of mandamus or prohibition is sought against an officer of the Cth

-s 39 provides that the jurisdiction of the High Court is exclusive of the jurisdiction of the State Courts, except as far as s 39 invests the State Courts with Federal Jurisdiction. The section then invests State Courts with federal jurisdiction in all matters where the HC has, or can be given, original jurisdiction. Section 39 expressly provides that the State Courts do not acquire jurisdiction in the matters mentioned in s 38

-High Court has original jurisdiction in relation to matters arising under or involving its interpretation section 30(a) of the Judiciary Act 1903

-The High Court can remit matters to lower courts s 44 Judiciary Act can be by application of parties or by the Court. It cannot remit matters where it has exclusive jurisdiction

Appellate Jurisdiction

-Primary function of the HC

-s 73 of the Cth Const. HC has jurisdiction to determine appeals against any judgment, decree, order or sentence of any

-Justice exercising the original jurisdiction of the HC

-Federal Court

-Court exercising state jurisdiction

-Supreme Court of a State

-Generally need special leave to appeal to the High Court

Federal Court

-Court of statutory jurisdiction

-Superior Court of Record s 5 Federal Court Act

-Section 39B(1A) of the Judiciary Act provides Federal Courts original jurisdiction includes any matter

1) Where a writ of mandamus or prohibition or an injunction it sought against an officer of the Commonwealth

2) Where the Commonwealth is seeking an injunction or a declaration

3) Arising under the Constitution or involving its interpretation

4) Arising under any laws made by the Commonwealth Parliament, other than a matter as to a criminal prosecution

-Federal court may have implied powers to prevent processes

-Can be challenged on the grounds it does not have jurisdiction to hear a matter

-Jurisdiction can be limited by specific legislation

-Federal Courts can only exercise Federal jurisdiction, where there are claims based on federal law and claims based on common law can hear together

Accrued Jurisdiction

-Based on s76(ii) and 77(i) of the Cth Const. and sections 19 and 22 of the Federal Court Act

-Federal and non-federal claims must fall within the scope of the one controversy

-Non-federal aspect of case must be so linked to the federal aspect that is cannot be severed

Phillip Morris v Adam P Brown Male Fashions

-One matter in dispute was about whether or not plaintiff was entitled to protect trademarks

-“federal and non-federal proceedings must so depend on common transactions and facts that they arise out of a common substratum of facts”

Fencot v Muller: In 1900 matter was in common use as the widest term to denote controversies that may be brought before a court. Matter is broader than individual legal proceedings

Re Wakim: Wakim won a personal injuries claim against one of the partners of the partnership business for which he worked. The partner was then declared bankrupt, the trustee in bankruptcy brought an action against the other partner and the other partner settled and gave $10,000 toward Wakim’s damages.

-Wakim brought an action against the trustee in negligence and breach of duty as trustee was based on the argument that they should have pursued the wife for me. Then sought to join claims against barrister and solicitor for negligence.

-Did Federal Court have accrued jurisdiction to hear the claim against solicitors and barristers which were based on slightly different facts and claims in negligence

-One controversy was the settlement reached with the second partner, all the claims flowed from that one controversy

-“Often the conclusion that if proceedings were tried in different courts, there could be conflicting findings made on one of more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings it is difficult to see that they could be said to constitute a single matter”

-All of the actions had one claim for damages, and if successful in full or part against one party would alter ability to claim against solicitors

-As long as the Federal claim was tenable at the time the claim was made Federal Court will continue to have jurisdiction even if the Federal claim was dropped

-Accrued jurisdiction is discretionary, court can chose how it exercises accrued jurisdiction

-When the Federal Court exercise state laws it applies as Federal Law: ASIC v Edensor Nominees

-New South Wales Land Council v Aboriginal and Torres Strait Islander Commission

Associated Jurisdiction

-Not as important since section 39B of the Judiciary Act

-Essentially allows court to determine a federal cause of action under legislation that does not vest jurisdiction in federal Court s 32 Federal Court Act

-Appellate Jurisdiction s 29

Exercise of Federal Jurisdiction by State Courts

-S 39(1) of the Judiciary Act

-Provides that the jurisdiction of the High Court is exclusive of the jurisdiction of the State courts, exercise as far as s 39 invests the state courts with federal jurisdiction

-Invests state courts with federal jurisdiction in all matters where the High Court has or can be given original jurisdiction

-Expressly provides that the State Courts do NOT acquire jurisdiction in the matters mentioned in s 38

-This can still be limited by legislation i.e. Native Title Fairwork Act

-When the state courts exercise Federal jurisdiction they exercise as if it is federal still

-Any monetary limits imposed by state courts still apply

State Jurisdiction

-Really is everything which doesn’t fall within Federal Jurisdiction

-Original Jurisdiction: the Court has ‘all jurisdiction that is necessary for the administration of Justice in Qld s 58(1) Qld Const.

-Kelly v Apps means the court has the ability to right any wrong that may occur in the administration of justice

-Riley McKay Pty Ltd v McKay

-Inherent jurisdiction

-Derives from the status as superior court of record

-Inherent jurisdiction to properly exercise its power performs its functions and control about abuse of process (Riley McKay Pty Ltd v McKay)

-Supreme court of record so it is presumed it has jurisdiction DMW v CGW (1982); Cameron v Cole (1944)

District and Magistrates Courts Generally

-District and Magistrates Court are created by statute as inferior courts of record. They have both civil and criminal jurisdiction in the terms prescribed by the statute. Both courts have a common law jurisdiction over personal actions i.e. claims in tort and contract and certain statutory claims for payment of money. While District Court has a reasonably wide equitable jurisdiction by virtue of the District Court of Queensland Act 1967 the Magistrates Court’s only equitable jurisdiction is for money claim sounding in equity.

District Court

-s 57 of the Const. of Qld established District Court District Court Act

-District Court of Queensland Act provides that the district court of record with such civil jurisdiction as is prescribed by the Act

-District court is an inferior Court Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd there is not presumption that it acted within its jurisdiction

-Statutory jurisdiction conferred by s 68(1) of the District Court Act has jurisdiction over claims up to $750,000

-Personal actions including claims for the detention of goods rent or mesne profits and for any debt damages or compensation arising under an act. S 68 also extends the notion of a personal action to

include an equitable claim or demand for the recovery of money or damages, whether liquidated or Unliquidated this specifically includes 1) Enforcing by delivery of possession of any mortgage, encumbrance, charge or lien 2) For relief against fraud or mistake 3)For specific performance of an agreement or damages in lieu of or in addition to specific performance 4) For rectifying, delivering up or cancelling an agreement 5) For a declaration of partnership or the dissolution or winding up of a partnership 6) For the sale, partition or division of property pursuant to ss 38 or 41 of the PLA 7) Administration of deceased estates 8) For the execution of a trust of a declaration that a trust subsists 9) Relating to the custody, maintenance or advancement of an infant 10) For family provision pursuant to ss 40-43 of the Succession Act 11) To recover possession of any land 12) To restrain, whether by injunction or otherwise any actual, threatened or apprehended trespass or nuisance to land 13) For the determination of any question of construction under a deed, will or other written instrument and for declaration for the rights of the person interested 14) For the appointment under s 104 of the Public Trustee Act of the public trustee as administrator of unclaimed property

-Equitable claim or demand for the recovery of money or damages whether liquidated or unliquidated

-s 68(2) provides district court certain powers of the Supreme Court in respect of matters where the district court has jurisdiction

-Monetary Limit of $750,000

Magistrates Court

-Created pursuant to s 22 of the Justices Act 1886. The Magistrates Court Act 1921 conferred civil jurisdiction on the Courts of Petty Sessions. Magistrates Court is an inferior court of record. Judgments are final and conclusive subject to appeal (s43 Magistrates Courts Act) and may be set up as a defence in any action brought in any other Court of law in Qld can apply for a new trial s 44

-Jurisdiction is not more than $150,000. Can determine an equitable claim and demand where the only relief sought is the recovery of a sum of money or damages whether liquidated or Unliquidated. Can award interest pursuant to s 47 of the Supreme Court Act and award of interest can allow the judgment to exceed the $150,000 limit Johns v Johns

-An issue decided in a Magistrates Court action creates an estoppel in subsequent proceedings involving the same issue in another Court even the Supreme Court Bollen v Hickson

Cross Vesting

-Initial cross-vesting scheme is contained in corresponding Cth and State legislation entitled Jurisdiction of Courts (Cross-Vesting) Act 1987. Act was designed to 1) Establish cross-vesting, but without detracting from the jurisdiction of the existing courts 2) As far as possible ensure matters are

commenced in the Court that would have jurisdiction apart from the cross-vesting legislation, that is, that matters are instituted in the most appropriate court 3) To permit the transfer of the proper court of a proceedings commenced in an inappropriate court

1) Federal and Family Court were given civil jurisdiction of the State and Territory Supreme Courts in State matters

2) State and Territory Supreme Courts were given the Jurisdiction of each other in state matters

3) Federal jurisdiction was invested in State Supreme Courts and jurisdiction was conferred on territory Supreme Courts in respect of a matter where the Federal Court or Family Court had jurisdiction and the State or Territory Court did not have jurisdiction

-High Court found provisions vesting state jurisdiction in federal courts unconstitutional Re Wakim

-Cross Vesting still remains important;

1) Cross-vesting jurisdiction in State matters among State and Territory Courts

2) Investing federal jurisdiction in State Supreme Courts in a civil matter where the Federal Court or the Family Court have jurisdiction and the Supreme Court does not

3) Conferring the jurisdiction of the Federal Court and the Family Court in civil matters on the Supreme Court where the Federal Court have jurisdiction and the Supreme Court does not have jurisdiction

4) Conferring the jurisdiction in civil matters of the Supreme Courts of the external Territories on the Federal Court and the Family and the Supreme Courts of other States and Territories

-Jurisdiction of Courts Cross vesting act Cth s 4: conveys certain federal jurisdiction to state Supreme Courts, does withhold some jurisdiction i.e. fairwork, native title

-There are also rules in relation to special federal matters s 6

Cross Vested State Jurisdiction

-s 4 of Cross vesting Act Qld, State supreme Court are conferred with the original and appellate state jurisdictions of other Supreme Courts

-s9 State Supreme Courts may exercise jurisdiction of other Supreme Courts conferred on them by legislation

-A party who seeks to invoke the cross-vesting laws must endorse the pleadings with a statement identifying each claim or defence in respect of which the cross-vesting laws UCPR rule 53

-The party invoking cross-vesting laws must apply for directions and any consideration of whether the matter should be transferred Rule 56

-Initiates consideration by the Court as to whether it should exercise jurisdiction under s 9

-To avoid the issue of forum shopping there have been provisions put in place regarded transfers of proceedings

Bankinvest AG v Seabrook: Conferred on each of the ten courts Australia-Wide Jurisdiction

Transfer of Proceedings

-s 5 of the Jurisdiction of Courts Act deals with transfers

1)Related Proceedings: Two cases occurring in two different courts based on essentially the same matter

- A supreme Court (the first Court) and another state Supreme Court, the Federal Court of the Family Court

-The Federal Court or the family court(first court) and a state Supreme Court

2) Proceedings where a Supreme Court Only has Cross-Vested Jurisdiction or a substantial part of the proceedings is cross-vested jurisdiction

-If proceedings are pending in a lower court or tribunal and the issue is raised it is under cross-vested jurisdiction apply s 8

Related Proceedings

-The first court must transfer the proceedings to the second court it

(a) The proceedings before the first court arise out of, or are related to, another proceeding already commenced in a second court and

(b) The Court believes, the second court is the more appropriate forum or it is otherwise in the interests of justice

More Appropriate Forum

-The range of factors considered relevant in assessing which is the more appropriate forum are

-The application of the substantive law, it is peculiar to a particular jurisdiction

-Forensic advantages or disadvantages conferred by the competing procedural laws

-The plaintiff’s choice of forum and the reasons for that choice

-Substantive connections with the forum (e.g. residence, domicile, place of occurrence and choice of law)

-Balance of convenience to parties and witnesses

-Comparative cost and delay

-Convenience of the court System

Phillippides J in World Firefighters Games Brisbane 2002 v World Firefighters Games WA Inc

Wright v Blakall & Ors

-Dealt with all the factors listed in Firefighters Games, and decided that case should be transferred to NSW despite the fact there was connection to Qld

-Even though it could be brought in Qld the more appropriate forum was NSW

-If the actions proceeded separately there could be inconsistent outcomes

Interests of Justice

-Interests of all the parties must be taken into account

-Court Weighs up convenience and expense of each forum, availability of witnesses, location of the parties, procedural advantages of each forum, the substantive law to be applied to determine the case BHP Billiton v Schultz

-s13 of the jurisdiction of courts Cross vesting provides there is no appeal from a Supreme Court’s decision regarding a transfer of the proceedings

-A party can seek the leave of the HC to appeal from a supreme Courts decision regarding transfer of the proceedings under the Act pursuant to s 73(ii)

Lecture 3

General principles as to originating process

-The form of the originating process in civil proceedings is prescribed in the rules. Commonly, the originating process describes the parties and gives their formal particulars

Key principles underlying the process

1) Open Justice: Justice should be done in Public

2) Each party should have a reasonable opportunity to present their case which requires each party know the case against them

-Further, whether the defendant has a limitation defence is gauged by the period from when the cause of action was complete to the date of commencement of the proceeding. The date of the originating process is conclusive in this respect. An associated consideration is the point at which a proceeding is validly commenced Williams v Spautz

-need for efficiency in the court process

-Rule 8 UCPR: Proceedings are commenced by the Court issuing an originating process

-This is essentially an administrative document in the form required by the Court

-Claim

-Application

-Notice of Appeal

-Notice of Appeal requiring Leave

Claim

-Rule 9 of the UCPR must be commenced by claim unless allowed or required by the UCR to commence by application

-Deals with a factual disputes with opposing parties

-Application

-Rule 10 of the UCPR must start by application if have to apply to the Court for a Statutory order

-Rule 11 may bring an application if

-The only or main issue is an issue of law and substantial dispute of fact is unlikely

-There is no opposing party to the proceedings or it is not intended to serve any person with the originating process

-There is insufficient time to prepare a claim because of the urgent nature of the relief sought

-An Application does not set in a motion a full process; it is a summary style process

-Can make interlocutory applications in relation to a claim that has already been commenced

-If the wrong process is used it is an irregularity but it does not make the process invalid Rule 13 and 14

-Application made by form 5, can be made orally under rule 12 (very rare)

-Claim uses a form 2 document

-Have to identify the parties, have to attach the statement of claim (pleading), brief statement of relief you are seeking

-If starting claim in Magistrate of District court should state why they have jurisdiction

Describing the Parties

-An adequate description of the parties on the originating process is essential: Cameron v National Mutual Life Association of Australia

-Court proceedings must demonstrate that the process is fair and free of corruption and special dealing for selected litigants. This further underpins the independent status of the courts and the judiciary Russell v Russell

-Very rarely will the Court allow protection of identity by use of an initial

J v L & A Services Pty Ltd: Husband and Wife contracted aids from their employer and wanted to use an initial to avoid embarrassment, and distress

-Claim must be issued by the court for it to take force

-Claim remains in force for 12 months Rule 24(1) of the UCPR

Stale Claims

-Claim is ‘stale’ after 12 months if not renewed

-Originating process not served within the time set in the rules is said to be stale. Service of a stale claim is not effective. However, service of a stale claim is an irregularity that the court may waive. It is not a nullity, Stale claim can be overcome if

1) Defendant serves an unconditional notice of intention to defend

2) The court waives the irregularity Gillies v Dibbetts

Renewal of Claim

-A claim (including a stale claim) can be renewed at the Court’s discretion, if the registrar or the court is satisfied that either

1) Reasonable efforts have been made to serve the defendant

2) If there is another good reason to renew the claim Rule 24; Muirhead v Uniting Church in Australia Property Trust

-Claim can be renewed after expiry of the limitation period Rule 24

Lecture 4: Service

-What service does

1) Jurisdiction: establishes jurisdiction of the court to determine the proceedings. A court will not exercise any of its powers if it has no jurisdiction over the defendant. Where the defendant is liable to be served the court has by virtue of service jurisdiction over the defendant. Generally the defendant is able to be served because of presence in the jurisdiction or because rule allows defendant to be served outside of jurisdiction

Laurie v Carroll

Tuckerman v Nevill

-Notice to the defendant “Obligation of personal service thereby removes the risk that the jurisdiction of the court over the person named will be asserted, conclusions reached and orders made, without proper initial opportunity being given to the person named to appear and defend the proceedings Ainsworth v Redd per Kirby

-Instigates the steps in a civil proceedings

-Litigation can be part of a broader strategy to influence public perception so called strategic litigation against public participation

-Gunns litigation, served proceedings on 20 defendants served shortly before Christmas claiming 6.4M in damages. 2 days after service Gunns announced a new pulp mill. Example of SLAPP litigation not that they don’t have no merit, but are also commenced with a broader purpose

Service Inside Queensland

-Personal Service: principally originating proceedings rule 105

-Ordinary Service: Notice of intention to defend

Effective Service

-Type of document being served, some documents are required by the rules to be served personally

-Identity of the defendant

-On occasion the type of cause of action: motor vehicle personal injury claims

-Service after 4pm is deemed to be service on the ‘following’ day Rule 103

-You are not allowed to serve someone on certain days unless the court orders that you can rule 101 (good Friday, Christmas)

-Claim must be in force, service of a stale claim is an irregularity, this doesn’t make the claim a nullity instead it is something that can be rectified by unconditional notice of intention to defend, or by the court waiving the irregularity (rule 371)

-An originating process (except Magistrates court) has to be serviced on each defendant/respondent personally rule 105(1)

-Counter-claims require personal service as well as non-party disclosure

Personal Service

-Give the document, or a copy of the document, to the person intended to be served rule 106(1)

-Leaving the document with someone else to give the defendant is not personal service:

Scalpelli v Maguire: Document left with a relative who promised to give to the defendant this was not personal service

Major v Australian Sports Commission: Defendant lived at Pullenvale, process server went to the house at 8:30pm defendant was asked if he was the defendant, defendant responded with ‘who are you’ until the defendant asked process server to leave

-Process server then asked a neighbour, if the person in question was the defendant, agreed he was process server went back and left documents in the driveway

-This was not effective service under either arm of 106, ineffective service was an irregularity which was waived by the court

-If the person refuses to accept the document, may serve by putting the document down in the person’s presence and telling them what it is rule 106(2)

-Do not have to show original document can serve a copy

-Irregular service can be remedied by defendant lodging unconditional notice to defend or court declares service is effective rule 371(2)

Personal Service Exceptions

-Where parties agree to an alternate form of service, service on solicitor pursuant to a written undertaking to accept service rule 115

-Service in accordance with an agreement rule 119

-Agreement can be made before or after commencement of claim

-It is shown the defendant has a copy of the document in their possession court can rule that possession is service rule 117

-Service on an agent where the principal is outside the jurisdiction rule 118

-Solicitor undertaking to accept service rule 115

Elders Finance Ltd v Invaway Pty Ltd

-Re Kerly, Son and Verden

Simpson v Bereton

Particular Types of Parties

(a)Corporations: person service of a Qld originating process to be effected on a corporation in accordance with the Corporations Act s 109X (if within Qld) or another applicable rule 107

-Service on registered office will be effective even if the company address is no longer used

-Can also deliver a copy to a director of the company

(b)Young people under 18 years of age rule 108

(c)Person with impaired capacity rule 109

(d)Prisoners rule 110

Magistrates Court

-Rule 111(1) and (2) of the UCPR documents which are required to be served personally may be served by

-Leaving the documents with someone who is apparently an adult living at the person’s ‘relevant address’ as defined in 112(3)

-Can give to a solicitor representing

-Rule 111(3) can post if person resides or carries on business more than 50km from nearest court

Substituted Service

-If it is impracticable to personally serve a document, the court may make an order allowing service in another way rule 115(1)

-Rule 116

-Porter v Freudenberg

-Miscamble v Phillips and Hoeflich (no 2)

-Citigroup Pty Ltd v Weerakoon

-MKM Capital Pty Ltd v Corbo & Poyser (Unreported, ACT Supreme Court)

Court must be satisfied that

-Impracticable to personally serve document

-Reasonably efforts have been made to effect personal service

-Substituted service has a reasonable possibility of bringing the proceeding to the defendant’s attention

-Means coming up with a suggestion as to how service could be effected i.e. sending to someone who should know the residence of the defendant, posting to last known address

-Informal service is allowed to stand as regular. Where a document has not been served as required by the rules but nonetheless has come to the attention of the person intended to be served, it is taken to be served on the day it came to the person’s notice. Whether an order of the court is required to confirm informal service depends on wording of the rules

-Social Media Service

Citigroup Pty Ltd v Weerakoon

-Substituted service via facebook, judge was not satisfied service would be effective nothing on the page showing that the page was created by the defendant and thus service could not be effected. As well as this there was a relatively solid last known personally address

MKM Capital Pty Ltd v Corbo & Poyser ACT

-Defendant’s defaulted on loan with MKM proceedings had been started and no notice to defend had been produced. MKM was successful in obtaining default judgment. MKM then needed to serve the default judgment. Court allowed service via facebook MKM proved to court that dates of birth and emails for the profiles matched the two defendants also showed the friends list that the two were friends with each other. Court was satisfied that it was likely to bring it to the defendant’s attention

Service allowed via twitter (reported in media)

-Justice Marshall of the Federal Court ordered service injunction via twitter involving the Melbourne School girl and St Kilda players. Sam Gilbert brought proceedings to prevent posting of nude pictures on Facebook and twitter. Court ordered injunction could be served via email and twitter

-Must be able to show a basis that profile is likely to be linked to the defendant (i.e. consistent dob and personal information) regularity of person accessing the page

Proof of Service

-Rule 120: sets out requirements for affidavit of service completed by person who performed service, place and time, how the identified the person being served

-Under the practice directions affidavit of service must be served promptly

Service Outside of Queensland but Within Australia

-Under common law rules presence in jurisdiction was necessary to be effective (only had to be temporary presence) only exception was to show that person had fled to avoid service

-No ability to get substituted service for someone outside of jurisdiction

Service and Execution of Process Act 1992

-Service outside Qld but within Australia is governed by SEPA rule 123

-Can serve a Qld initiating process in another state broad enough to include claim and application

-Service to an individual is in the same way as service within jurisdiction i.e. if personal service is required in Qld personal service is required for person in the other state s 15 SEPA

-s9 SEPA can serve a company by leaving it at or posting to registered office, or leaving it with a director who resided in Australia

-Do not need to show a connection between the proceeding and the state in which the proceeding is brought before process can be served interstate

-s 21: can’t apply for a stay of proceedings because court proceedings commenced in is not the appropriate forum

-Required that attached to claim is a form 1 notice, failing to attach is an irregularity not a nullity

-Rule 116(4): Can apply for an order for substituted service outside of jurisdiction

-Proving service under s 11 of SEPA (special requirements for serving corporations by post)

Service Outside of Australia

-UCPR and conventions define when an originating process can be served in a foreign country

-Must meet requirement or service not effective and can be set aside rule 126

-All require a connection between the dispute and Queensland i.e. Subject matter of dispute occurred in Qld, parties have registered offices in Qld,

-Critical that documents are served correctly especially originating processes

-Process is not void if it does not comply with the rules it will not be a nullity but can result in additional costs and embarrassment etc

Setting Aside Service

-There is provision for the defendant to apply for an order setting aside service. It is also extends to an order pursuant to which service was effected. If the defendant can show that service was not effected in accordance with the rules than that purported service is liable to be set aside. A conditional notice of intention to defend is unnecessary. Normally, the application should be made before judgment is entered

Rule 126

Carroll v Laurie

Notice of Intention to Defend

1) Prevents default judgment

2) Notifies Court and Plaintiff of intention to defend claim

3) Notifies court of position on jurisdiction

4) Unless specifically allowed to by rules can’t take any step in proceeding without first filing it

5) Notice of intention to defend can be filed by an individual or by a solicitor

-A corporation has to file a notice of intention to defend through a solicitor

-Special rules involving minors or persons who lack capacity

-Cannot file notice in a registered business name

Time

-The rules set for the time of filing notice of intention to defend rule 137 and rule 138 SEPA s 17

Types

Conditional: rule 144

-Conditional intention to defend intends to draw an irregularity in service to the Court’s attention must apply for the proceeding to be set aside or for other relief before entering appearance or alternatively enter a conditional appearance

-Use this if you plan to argue procedural irregularities and objections to jurisdiction

-Within 14 days must apply to set aside originating process and if fail to, conditional notice becomes unconditional notice

-Do not attach a defence

-Effectively it is an appearance under protest, prevents default judgment but raises jurisdictional problems form 7

Pioneer Concrete (North Coast) Pty Ltd v Bennett: Irregular service, failure to serve

Unconditional

-Waives procedural irregularities regarding service and objections to jurisdiction rule 144(6)

Sheldon v Brown Bayley’s Steel Works Ltd: Stale writ was served, defendants entry of unconditional notice waived any right in relation to any right to bring up service of stale writ

-Submitting to jurisdiction of the court Caltex Oil v the Dredge Willemstead

-Does not confer subject matter jurisdiction the court does not have Thomson Australia Holdings Pty Ltd v trade Practices Commission

-If the court has no substantive jurisdiction, an unconditional notice of intention to defend cannot create it. By filling an unconditional notice of intention to defend the defendant submits only to the jurisdiction of the court to decide whether it has jurisdiction. Jurisdiction over the subject matter is another head of jurisdiction and that is not conferred, nor does the defendant submit to it, by filing of an unconditional notice of intention to defend

Coe v Queensland Mines

-Must attach a defence

Time for Entering

Rule 137(1) must be file within 28 days of service of the claim

-Plaintiff can’t apply for default judgment any time before 28 days

-Where defendant is served inter-state sections 14 and 17 of SEPA, effectively 28 days again

Service

-Rule 142 must serve a sealed copy on day it was filed or as soon as possible after

-Ordinary service is required rule 112

-leaving it with someone who is apparently an adult living at the relevant address

-Leaving it at the relevant address

-Posting it

-fax number

-Solicitor

-Less onerous than personal service

Pleadings

-Basis for pleadings the parties should have notice of the case against them (procedural fairness)

-Need for civil litigation to managed efficiently

Course of Pleadings

1) Statement of claim

2) Defendant’s defence

3) Plaintiff’s reply to defence

4) Defendant’s counter claim

5) Plaintiff’s defence to counter-claim

6) Defendant’s reply to defence of counter claim

Function of Pleadings

-To define the issues between the parties

-The issues effect subsequent steps in the proceeding

-Give notice of the issues to the court and the parties

-Agreement between parties i.e. both a corporations, what the contract is, terms of contract etc. This means do not have to do disclosure in relation to those elements or put together evidence for those elements

Dare v Pulham:

General Rules of Pleading

-The material facts of the claim or defence must be pleaded, necessary for the purpose of formulating a complete cause of action Bruce v Odhams Press Ltd

-Evidence by which the facts are to be proved must not be pleaded, note rule 149(1)(c) should plead anything that would take other party by surprise

Facts v Particulars

-Particulars give specificity to the more general assertions material facts made in the body of the pleading

-For example if the material fact is that the defendant breached their duty of care, the particulars will specify the respects in which it is said that the defendant breached their duty

-Do not need to plead response to particulars

-Conclusions of law must be asserted as material facts rule 149(2) i.e. have to plead limitations defences

-The pleading must be as brief as the case permits

Denials

-A denial is relevant in pleadings subsequent to the statement of claim. A defendant who proposes to challenge the plaintiff’s allegations must, in the defence, specifically deny, or plead non-admission, to each allegation in the statement of claim. Similarly a plaintiff who delivers a reply must answer specifically any allegations of fact in defence

-A denial or non-admission should be pleaded only where there is a genuine dispute or where there is a legitimate need for formal proof of an allegation. A mindless denial of all of the allegations in the opposite pleading fails to adequately define the matters in issue Rule 166

Specific Denials

-The defendant must clearly plead to the facts which are alleged in the statement of claim. The defendant may admit or deny or plead a non-admission to the allegations in the statement of claim, or allege additional facts which show the situation in a different light. Whatever course the defendant

takes it must be unambiguous. If the defence is evasive or ambiguous an admission is implied except against a defendant is subject to a legal disability Rule 166

-A denial must answer the point in substance. The defendant has specifically plead to the facts as they have been alleged in the statement of claim. Any facts the defendant proposes to prove at the trial must be specifically alleged in the defence Byrd v Nunn

Ambiguous Denials and Implied admissions

-The pleader must make clear what the pleading admits or denies. If a plea is ambiguous, the corresponding allegation in the preceding pleading is taken as admitted.

Rule 166

Thorp v Holdsworth

Plea of do not Admit

-The rules refer to the plea of non-admission. A defendant cannot give or call evidence in relation to a fact which was not admitted

Rule 165, rule 166

Denial of Negative Allegations

-Special considerations apply to the denial of a negative allegation. A double negative may arise from a bare denial, in which case an affirmative proposition is asserted. A double negative always imports an affirmative but not necessarily in pleading. For pleading purposes, whether an affirmative arises depends on whether the plea is a bare denial, or whether the denial, being negative in form, carries a positive proposition. A negative plea which asserts an affirmative proposition is a negative pregnant

Pinson v Lloyds & National Provincial Foreign Bank Ltd

Effect of a Denial

-A denial, so long as it is not a negative pregnant, simply puts the plaintiff to proof of the plaintiff’s case. Only where the denial implies a positive assertion does a denial in effect plead a material fact. It follows that by pleading a denial, a defendant is not permitted to adduce evidence beyond merely contradicting the plaintiff’s evidence

Davie v New Merton Board Mills

-In Qld a party answering a pleading may plead a denial, a non-admission, an admission or another matter. A party who pleads a non-admission cannot give or call evidence in relation to a fact not admitted unless it relates to another part of that party’s pleading

Rule 165

There is an implied admission of an allegation of fact that is not answered by a denial or a non-admission except against a party who is under a legal incapacity

Rule 166

Rule 166 in dealing with pleading denials and non-admissions, has its most significant application at the stage of the defence. The defendant may plead a denial or non-admission only if 1) The defendant made inquiries to see whether the allegation is true 2) The inquiries are reasonably having regard to the time for filing the defence 3) The defendant remains uncertain about the truth or falsify of the allegation

-A denial or non-admission must be accompanied by a direct explanation for the defendant’s belief that the allegation is untrue or cannot be admitted

-If denial or non-admission is unexplained or is not supported by reasonable inquiries the opposite allegation is admitted

-A defendant who pleads a non-admission is under a continuing obligation to carry out any further inquiries that may become reasonable. The defence must be amended is the results of the inquiries make possible the admission or denial of the allegation. The plaintiff has the same obligation as to a non-admission in the reply

-Rule 166

-Where a denial or non-admission is pleaded unreasonably the court may order the party who pleaded it to pay any additional costs caused by the plea

-Rule 167

Confession and avoidance

-A defendant may intend to do more than simply deny the plaintiff’s case. The defendant may intend to allege additional facts to destroy the basis of the claim. A plea of confession and avoidance is appropriate for the purpose. The defendant may both traverse and confess and avoid the same allegation, and also plead that the claim is bad in law

Rule 165

Davie v New Merton Board Mills

Amending Pleadings

-The court has a general power to allow of direct a party to amend a pleading at any point in the proceeding

Rule 375

-Pleadings can be amended as often as necessary up until the filing of a request for trial date

Rule 378

-Another party may apply to the court for the amendment to be disallowed wholly or in part within eight days of service. In considering an application to disallow an amendment, the court may make any order it considers is appropriate

-Rule 379

Central Sawmilling No 1 Pty Ltd v Queensland

Re Carrington Cotton Corp Ltd

-Once a request for trial date is filed, the leave of the court is required to amend a pleading

Rule 375, 380

Supreme Court of Queensland Act 1991

Striking out Proceedings

Rule 162 in Queensland confers a specific power on the court to strike out a particular which

1) Tends to prejudice or delay the fair trial of the proceeding

2) Is unnecessary or scandalous

3) Is frivolous or vexatious

4) Is otherwise an abuse of the process of the Court

-The practical role of 162 is uncertain. If particulars are merely struck out an inadequately particularised pleading is left on the record. According to normal pleading principle a pleading lacking proper particulars should be struck out. The court could also make an order for further and better particulars under rule 161 when striking out particulars pursuant to rule 162

Striking out Particulars

-There is a power under the rules for the court to strike out a pleading which might prejudice embarrass or delay the fair trial of an action or which is scandalous rule 171

Lecture 5

Amending Pleadings

-Before request for trial date

-Rule 378 and 379

-Another party may apply to the court seeking orders that the amendment be disallowed

-This is quite different to other states which generally don’t allow amendment after the end of pleadings

-New sections have to underlined and old bits struck out

-Rule 378 can amend as often as you like before trial date set

-Rule 379 other party can object to an amendment

Central Sawmilling No 1 Pty Ltd v Queensland: Court said principled applied to decide if they will disallow an amendment under rule 379 are the same that are applied if the proceeding at any time i.e. requirements in Aon Risk Insurance

Carrington Cotton Corp: Original claim sought relief from oppression under the corporations act SOC was further amended mad knew allegations that directors had breached fiduciary duty to the company in entering into a particular agreement

-Claim for breach of fiduciary duty was not maintainable

-Alternative claim for fraud was not adequately particularised

-Held that the amendment was not maintainable cause of action (fiduciary duty) and the cause of action that could be pleaded (fraud) was not adequately particularised, refused leave to amend as it substituted an entirely new cause of action

‘Respondent rightly puts this within the characterisation in Hall v Hall for example of a new case varying so substantially from what has previously been set up that it would involve investigation of matters of fact or questions of law or both different from what have already been raised and of which no fair warning had been given’

-If amendment is not allowed can look to start a new action

-Necessity of the amendment will turn on the quality and reasonableness of the amendment, court will also be influenced by the stage at which the amendment is sought i.e. amending before disclosure more likely to allow

-Amendments prior to trial date will still be subject to rules relating to limitation periods

After Request for Trial Date

-Rules 375 and 380

-Can only amend if you get leave of the court

-Leave can be given by application of one of the parties or by direction of the court rule 375

-Generally the court has discretion to allow or deny or amendment, Court can also impose conditions on an amendment

-Traditional approach was very lenient; if disadvantage was caused by later amendment would have cost order against

Qld v JL Holdings: Entrenched this position made it difficult to contest an application to amend

AON Risk v ANU: Parties no longer had a right to amend at any point in the pleadings it is up to the courts discretion to allow amendment, public interest in proper use of resources, delay can affect public confidence in the courts, delay other parties waiting to use the system

-Court will consider more than the interests of one party looking to have its case heard on the merits

-Stage of proceedings, i.e. has a trial date been granted, what will be the effect on other litigants

-Public confidence in the system

Adding Cause of Action after Limitation Period

Rule 375(2) and 376(4)

Action was statute barred before the commencement of proceedings, 375(2) court has power amend even allowing a new cause of action

-At common law could not add statute barred cause of action Weldon v Neil

-In Queensland rules give the court discretion to allow cause of action to be added even where it is stature barred

Rule 376(1): Only applies to causes of actions that have become statute barred since the proceedings commenced

Rule 376(4): The court may grant leave to make amendment if the new cause of action if

(a)Court considers it appropriate

(b)The new cause of action arises out of the same facts or substantially the same facts (related to original proceedings)

-Section 81 of the Supreme Court of Queensland Act 1991

81(3) Despite subsection 2 the rules of the court may limit the circumstances in which amendments may be made

-This amendment seems to remove possible exception in Drainy v Barry

Rules in Answering Pleadings

-Denials and responding to pleadings

Rule 166: Denials and non-admissions (replying to statement of claim)

Rule 166(4): Denial or non-admission for an allegation of fact must include reference as to why the fact is denied

-A denial requires a direct statement as to reason for denial

-Non-admission must have particulars stating why it should be non-admitted

-Rule 166(5): Denial or non-admission does not conform with rule 166(4) then the fact is taken to be admitted by the party (this means can’t lead evidence on this)

-Balisteros v Chidlow: Pleadings are to state with sufficient clarity the case that must be met rule 166(4) provides that it is beneficial in achieving the object particulars do not need to be pleaded to

-Rule 166(4) applies only to an allegation of material fact, not particulars, points of law etc

-James v Hill: application of 166 relates to factual issues not to duties arising from known or agreed facts, because those matters are matters of law

-Melco Engineering v Magnetics: No obligation to plead evidence, respond to allegations of fact which is particularised without pleading fact rule 149(1)(b) deals with distinction. Statements in a pleading which are not allegations of fact do not require further response under rule 166(4). Allegation as to evidence or an explanation does not require response

-Defence should response to each and every material fact particularised as to why denying or non-admitted

-Form 7 (conditional notice of intention to defend)

-Form 6 notice of intention to defend attachment of defence

-The defendant admits the allegation in paragraph x

-Failing to address a paragraph in a statement of claim is deemed to be an admission

-The defendant does not admit the allegation in paragraph x. The defendant has made reasonable inquiries and is uncertain of the truth of the allegation. The defendant believes this because of (particulars)

-the defendant denies the allegation in paragraph x. Set out particulars for denial based on the particulars and allegations of fact in the SOC

-A direct explanation for a denial is not defined by the rules, best to state Denies statement in paragraph x defendant believes of

Groves v Australian Liquor Industry: Court considered were it was given a bare denial, i.e. defendant denies without giving an explanation because it was untrue. Held this needs to be statement of fact as to why it is untrue

-Allegation is denied on the basis that the defendant believes that the amount or the amounts claimed are excessive and contrary to expert evidence as to damage suffered

-Allegations is denied on the basis that the defendant believes; that the plaintiff has made no complaint as to headaches; and has not received any such treatment since collision

-Defendant denies relying on paragraphs x, y, z etc, especially useful were defence has been filed

Vaker v Linklater: Defendants do not-admit allegations in paragraphs x because they are unable to attest to the truth for themselves

-Defendants in personal injury are often pleading in response to circumstances can non-admit based only on the knowledge of the plaintiff

-A bare non-admission of facts means that a paragraph could be struck-out and a deemed admission

-Rule 168: Implied admission, every allegation of fact is taken to be a subject of non-admission a party who pleads a non-admission may not give or call evidence in relation to a non-admission (rule 165)

-Application to uphold a denial or non-admission, make an amendment to or withdraw a non-admission (on application to the court after the close of pleadings)

-If pleadings do not show a cause of action can apply to have elements struck out or claim struck out

-If a denial cannot be substantiated or is so blanket can make an application for it to be struck out (makes it a deemed admission)

-Defendant denies Particulars of denial received specialist report without directly referring the Court to it

-In response to the prayer of relief Repeat and rely on paragraph above, deny the severity of the symptoms suffered and that it was related to accident reference to why symptoms are denied

Lecture 6 Parties and Causes of Action

Capacity

-Individuals/natural persons

-Corporations incorporated under the CA 2001

-Incorporated associations (Incorporated Associations Act) have several legal personality from their members

-Governments

-Business names: Registered business names do not create separate legal personality and cannot be sued, the legal entity that creates the entity can be sued

-Unincorporated associations: do not have separate legal personality, should sue members as individuals

-Bankrupts: Rules under bankruptcy act about who you can sue, who can be sue you, i.e. leave of court for creditors to sue, generally bankrupts will have to bring actions through trustee in bankruptcy

-Minors and Adults Who lack capacity: They can still be sued and sue people do they have capacity to understand proceedings or they are sued through their guardians Rules 93 and 98

-Partnerships are made up of individuals, however, partners can sue In their firm name

-Whether or not a party should be sued may depend on the liquidity of the defendant i.e. ability to pay judgment debt and costs

Joinder of Plaintiffs and Defendants

-Efficiency, consistency, promoting finality

-Courts do not want to re-hear allegations relating to the same transactions, makes sense to bring action at the same time

-Do not want separate courts or tribunals hearing essentially the same cases and coming to different findings of fact

-Encourage finality of proceedings

-Rule 62(1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in a dispute in a proceeding must be included as a party to the proceeding

-Rule 62(2) Gives court power to join parties

Necessary to be Joined

-Rule 63 (1) If a plaintiff or applicant seeks relied to which another person is entitled jointly with the plaintiff or applicant all persons entitled to the relief must be parties to the proceedings

-Rule 63(2): A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent

Rule 65(1) In a proceeding 2 or more persons may be plaintiffs or defendants or applicants or respondents if

a) Separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceeding

b) All rights to relief sought in the proceeding arise out of the same transaction or event or series of transactions or events

Payne v Young: 2 plaintiffs both subcontractors to the same contract to provide separate purposes, both plaintiffs claimed they were owed money under their respective contracts with the first defendant. Could they join as plaintiffs?

-This did not arise out of the same transaction even though they shared characteristics of being subcontractors they were discrete contracts, not a series of transactions

-Just having the same defendant will not give rise to a right to join

Cameron v National Mutual Life Association of Australia

Rule 64(1): Defendants must be joined where they are jointly but not severably liable i.e. two purchasers contracting to buy the same piece of land and both breach contract would have to join both in action for specific performance

-Rule 65(1) applies to defendants were they may be joined

Parkes v Smith: Plaintiff sued three defendants in one proceeding for defamation. First and second defendants were members of the game fishing club third defendant was the club itself. After plaintiff resigned the first and third defendant published defamatory material. At a following meeting further defamatory remarks were made by the second defendant

-Could all three of these defendants be joined? Did they raise a common question of law or fact or did they arise out of the same series of transactions or events

-Held: No they could not be joined, two separate alleged publications of defamatory material

-s 6 of the Law Reform Act can affect ability to recover against joint tortfeasor if you are successful against another tortfeasor, proportional distribution of liability between tortfeasor (economic loss or property damage cases)

Rule 65(2) Also in a proceeding 2 or more persons may be defendants if

-There is doubt as to the person whom the plaintiff or applicant is entitled to relief

-The respective amounts for which each may be liable

b) Damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant

Parkes v Smith: Could join under rule 65(2)(b) hard to tell if damage had been caused by letter or statements made at the meeting

-Rule 68 of the UCPR gives the court discretion to make an order, including for separate trials between particular parties to the proceeding if a party could show that the proceeding presently constituted may delay the trial of the proceeding prejudice a particular party or be otherwise inconvenient

Reconstitution of Proceedings

Under rule 69(1) after proceedings have been commenced the court may order, the addition or substitution of a party where the party’s presence before the court 1)

(a) is necessary to enable the court to adjudicate effectually and completely on all matters in dispute

(b) would be desirable just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding

2) The removal of a party unnecessarily or improperly included in the proceeding, or a party that has ceased to be necessary or appropriate

News Ltd v Australian Rugby League Football

-Will the person’s rights in against all liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action

Macquarie Bank ltd v Lin

-MB lent money to Coy guaranteed by Lin

-Guarantee required Lin not to dispose of any interest in a particular Norman Park property + maintain a net worth or $5M or more but no security taken over Norman Park Property

-Lin’s Parents commenced proceedings seeking declaration that Lin held the Norman park property on trust for them

-Lin wasn’t going to oppose, effect would be Lin’s net worth would be less than $5M

-MB sought to be joined to the proceedings Atkinson held that MB was a necessary party to the proceedings as they had a right to stop Lin not opposing and it would be directly affected by the outcome of the declaration

-Even if it wasn’t necessary (which it was) it would have been desirable to add them

Rule 69(2): adding a defendant outside limitation period in Queensland

-A defendant cannot be added or substituted to a proceeding outside a limitation period unless the new party is a necessary party because

i) property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included ii) The proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of that land iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to included or substituted as a defendant or respondent, the person is given notice of the court’s intention to make the order iv) The court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order

b) The relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally

c) The new party is the AG and the proceeding should have been brought as a relator proceeding in the AG’s

d) The new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company

e) The new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable

f) For any other reason i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period cannot be maintained ii) relief sought in the proceeding before the end of the limitation period cannot be granted

unless the new party is included or substituted as a party

Rule 69(2)

Joining of Causes of Action

-Several causes may be joined in a single proceeding

-Rule 60(1): A plaintiff may whether seeking relief in the same of different capacities include in the same proceeding as many causes of action as the plaintiff has against a defendant or the applicant has against a respondent

(2) However causes of action may be included in the same proceeding if at least ` of the following conditions is satisfied

(a) if a separate proceeding were brought for each cause of action a common question of law or fact may arise in all the proceedings

(b) all rights to relief sought in the proceedings are in relation to or arise out of the same transaction or event or series of transactions or events

-Court has discretion to order separate trials if the joinder of causes of action is inconvenient

-Rule 68

3rd Party Contribution Notices

-A third party may be joined when the defendant claims against the third party in relation to the plaintiffs claim

-A defendant may incur a liability to the plaintiff because of the default or misfeasance of another person, who the plaintiff has not sued, and who is not a party to the proceeding. It is clearly convenient for the dispute to be resolved not only as between the plaintiff and the defendant but with the other party as well. Thus the defendant may claim against the third party what the plaintiff claims against the defendant.

-There must though be a nexus among all claims. A defendant cannot, under the guise of a third party claim, make a claim against a third party which is entirely disconnected from the plaintiff’s claim. This is expressed in a formula set out in the rules. A third party may be joined when the defendant claims against the third party

a) A contribution or indemnity

b) Relief or a remedy connected with the original subject matter of the action and substantially the same as the relief or remedy claimed by the plaintiff

c) That any question relating to or connected with the original subject matter should be determined as between the plaintiff, the defendant and the third party or any of them Rule 192

Representative Actions

-Rule 75 of the UCPR

-One of more representative plaintiff or representative defendant who take proceedings on behalf of the group who have the same interests as the person representing them

-Representative representing all of the persons who have the same interest and could have been parties in the proceedings

-One party may, whether as a plaintiff or defendant, represent other persons having the same interest where the class is to large for each person to be an individual party

Campbells Cash and Cary Pty Ltd v Fostiff Pty Ltd

Duke of Bedford v Ellis

1) There must be a common interest

2) There must be a common grievance

3) The relief must be beneficial to all parties who are represented by the party on the record

-Traditional Common law test had to be essentially exactly the same interest

Markt & Co ltd v Knight Steamship Co Ltd: Ship sank and owners of cargo sought to bring representative action against the company, did not have the same interest as they each had different contracts, cargo was going to different ports, assessing damages would have to be done on an individual basis

Carnie v Esanda Finance Corp Ltd: Same interest is satisfied where there was a significant question common to all members of the class and that they stood to be equally affected by the relief being sought

-Despite all members having separate contracts, they still satisfied the test as having the same interest

-No clear distinction between a representative action and a class action

-Essentially where class action procedures are available need 7 or more claimants and they have to be claims for the same similar or related circumstances against the same respondent (broader test), more focused on plaintiffs

-Federal Court model is an ‘opt out’ model, if you are a member of the class and want to not be bound have to opt out of the group

-Rationale is to allow people with small claims bring actions effectively

-Maurice Blackburn is working with IMF (litigation funder) to pay for initial investigations into flood damage. Damages claim could hit 500M preliminary investigations could be worth 1M for individual litigants it could be almost impossible to fund

Class Actions

-The Federal Court, New South Wales, South Australia and Victoria allow class actions to be brought in damages claims, even if individual assessments are ultimately required

-Restrictive conditions relating to representative actions do not apply to class actions. As the High Court noted in Carrie v Esanda Finance Corporation Ltd a representative action is not a class action.

-There is a statutory scheme for class actions in the Federal Court. In the Federal Court class actions are called group proceedings

Wong v Silkfield Pty Ltd

King v GIO Australia Holdings Ltd

Finance Sector Union of Australia v Commonwealth Bank of Australia

Protecting Positions

-Interlocutory applications to get orders to protect positions of parties, maintain the status quo until final resolution

-These are generally rarely used

-The Courts have certain powers to protect the interests of the parties while the ultimate dispute between them is resolved through court proceedings. The objective of an exercise of these powers is to minimise harm to the parties while at the same time maintaining integrity of the court process

Injunctions

-Interim and interlocutory injunctions can be granted in an endeavour to preserve the status quo between the parties until the final resolution of the dispute

Interim Injunctions

-Can be granted on an ex parte basis

-usually granted in an emergency for a short period of time until an application for an interlocutory injunction is heard

Interlocutory Injunction

-Will normally apply until final disposition of the dispute

-Generally they are opposed applications

Requirements

1) Serious question to be tried, there is a prima facie case to be heard, probability that the plaintiff will be entitled to relief

-Damages would not be an adequate remedy

2) The balance of convenience favours the grant of an injunction can also consider third parties

-Plaintiff will usually be required to provide the usual undertaking as to damages on making an application for an interim or interlocutory injunction Rule 264

Australian Broadcasting Corporation v O’Neil

Hyatt of Australia Limited v Coolum Resort Pty Ld and Ors

-Hyatt company managed the Coolum resort, the owner of the Coolum resort was a number of companies connected to Clive Palmer

-Hyatt was not running profitably since 2009 but was still bought by new owners who allowed Hyatt to continue to manage as they had a long agreement

-20th Feb Owners alleged that contract had been breached by Hyatt and told them contract would be terminated signs removed

-21st Feb interim injunction granted signs had to be replaced maintenance of the status quo

-Early March an interlocutory injunction granted until final determination of the case

-Defendants did not produce a persuasive case it would appear commercial decision was made. It would appear prima facie that the plaintiff had a case that they did not breach

-Balance of convenience: Could look at third parties which was relevant because administrators had been appointed

-If Court didn’t grant injunction and allowed repudiation by the defendants this would not be covered by damages, because of damage caused to the ‘Hyatt’ brand

-Found on the balance of convenience that injunction should be granted because damage to the Hyatt brand would be irreversible if injunction not granted, overall Hyatt had a strong case which aided granting of the injunction

-Did not appear the injunction would be detrimental to the administrators

Preserving Property

-Effectively preserving evidence for a case

-Supreme Courts have an inherent power to make these orders Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd

-Rule 250(1) the Court may make an order for the inspection, detention, custody or preservation of property if

(a)The property is the subject of a proceedings or is property about which a question may arise in a proceeding

(b)inspection of the property is necessary for deciding an issue in a proceeding

250(2): Applies whether or not the property is in the possession custody or power of a party

250(3): Enter a place or do another thing to obtain access to the property, take samples of the property, make observations and take photographs, conduct an experiment on or with property, observe a process, observe or read images or information contained in the property including, for example, by placing a screening a tape film or disk, photograph or otherwise copy the property or information contained in the property

-Inspection has to be necessary, necessary for doing justice between the parties Rooskov v Laconholme Pty Ltd ‘inspection sought is necessary in the sense that there is good reason to think that the applicant will be prevented from obtaining just resolution of the case unless such an order is made’

-Welch v Rodgers: Copy financial records and documents from defendant because they were worried they were going to be destroyed

Rule 251: perishable items

Rule 252: make rules relating to non-parties

Jackson v Sterling Industries: Mareva Orders (inherent jurisdiction of Superior Courts) essentially prevent a party from disposing assets or removing them from jurisdiction to frustrate a court case. This has been extended to locally based companies and disposing assets within the jurisdiction

Anton Piller KGv Manufacturing Processes Ltd: Seizure of documents as evidence made ex parte often involve intellectual property disputes. Plaintiff planned to take action against English agent in relation to IP were worried they were going to be destroyed

Rank Film Distributors Ltd v Video Information Centre: Evidence that copies of films were being made, order given to enter property to seize evidence

-Now harmonised rules in relation to these orders

-Rule 261A: Search order(Anton Pillar)

-Rule 261B: The court may make search order if (a)applicant has strong prima facie case on an accrued cause of action and (b) the potential or actual loss or damage to the applicant will be serious if the search order is not made (c) There is sufficient evidence (slide)

Security for Costs

-Order sought by a defendant concerned that plaintiff will not be able to pay costs if defendant is successful.

Rule 670-676

-Rule 671: (slide)

-Rule 672: Factors the court may have regard to including prospects of success, genuineness of the proceedings, who is standing behind the proceedings, estimated costs of the proceedings

Suppression Orders

-Non-publication orders apply more broadly than injunctions (which are generally between parties) generally targeted at the media

-Counter to principle of open justice, justice must be seen to be done

-Model legislation for suppression and non-publication orders agreed by COAG

-Legislation reflects the common law tests, provides for mechanisms for enforcement throughout the country

-Necessity: arose only in wholly exceptional circumstances: John Fairfax Publications Pty Ltd v Ryde Local Court

-A high level of strictness applied in determining whether it was really necessary to exercise the power to suppress disclosure or publication O’Shane v Burwood Local Court

-Separate rules in relation minors and sexually assault victims

Rinehart Case: 3 of 4 children sought to have Gina removed as trustee. G sought suppression order in NSQ under model legislation. Basis of case was a clause that any dispute would be arbitrated confidentially, also added a clause for protecting safety (as this was directly mentioned in the legislation). Initial suppression order refused, interim order given until review could be conducted. Review was knocked back, another interim injunction, was granted while further review was pending which was then knocked back

-NSW court of appeal decided she did not meet the ‘wholly exceptional’ circumstances test

Lecture 7: Gathering Information

Disclosure

-Disclosure/Discovery are essentially the same thing for the purposes of this course

-Covers a number of procedures that, require the parties to disclose relevant documents they have in their possession or control, allow a party to issue interrogatories to an opposing party, allow inspection and preservation of the subject matter of the proceeding, allow a party to obtain access to documents and property in the possession of a non-party

Policy Rationale

1 Procedural fairness/equality: The party should know the case against them, reduce prospect for ambush at trial. Makes the ultimate decision of the court more accurate by giving the court access to documents in decision making. Cannot hold back information purely because it is detrimental to your case, an obligation to disclose has to be followed even if detrimental

2 Efficiency: Timing of disclosure is meant to achieve efficiency sync up with rule 5 of the UCPR allows party to narrow issues to be resolved at trial shorten trial if possible, reduces the risk for last minute adjournments

3 Promote resolution other than by trial: better assessment of the merits of the other parties claim, better position to negotiate or may realistic assessment of chance of success

-This is also a key strategic step for the parties, get access to information and facts about the other party’s case. This allows parties to assess the strength of the other parties case, develop strategy as to how best proceed with the claim

-This process does not give everything, evidence is principally given orally making it hard to predict what will actually be said at trial

Duties of Lawyer

-Duty to advise the client in relation to obligations to provide disclosure, obligation not to destroy documents, a potential party to proceedings has a duty not to destroy relevant documents, uses to which disclosed documents can be put. Especially important where parties are antagonistic

-Duty to the court, take steps to ensure client is complying with disclosure rules.

-Rule 226 of the UCPR provide certificate to court that you have explained to the client obligations in relation to disclosure of documents

Equitable Discovery

-Disclosure and discovery were all developed in equity

-There are still residual basis for equitable recovery

-s 209(3): does not limit right to get disclosure through equity, unless the UCPR ‘covers the field’ i.e. disclosure after the close of pleadings are only under the UCPR

-Pre-proceeding disclosure can be obtained through equitable discovery Norwich Pharmacal Co. V Customs and Excise Commissioners: Generally involves getting the identity of a wrong-doer. Norwich had a patent and became aware that someone was breaching its patent based on documents. Norwich went to Court to get an order to force disclosure the identity of the wrongdoer

Competershare Ltd v Perpetual Registrars Ltd: Court made a Norwich order to compel the defendant to give discover of certain documents before the close pleadings. Norwich order is not limited to identifying a tortfeasor. It may be made to trace the disposition of funds obtained fraudulently and for other purposes. There the defendant was ordered to give discovery of the documents concerning the misuse of confidential information before the plaintiff delivered its statement of claim. Discovery was ordered to identify the actual information that was misused.

Re Pyne: Affirmed that Norwich applies in Queensland. Involved a circular newsletter which contained defamatory allegations. Publisher had to disclose identity of the person who had made the defamatory remarks

-Pre-close of Pleadings disclosure: Rule 214(2)(a) allows for disclosure of documents before the close of pleadings, in Qld can rely on rule rather than equitable discovery

-Equitable disclosure is rely on concerned with pre-proceedings disclosure

-Can apply to parties and people who are not contemplated as parties

Disclosure and Inspection of Documents

Part 1 Chap 7 UCPR

-Rule 209(1): Chapter 7 part 1 applies to all proceedings commenced by claims, can also apply to applications where the court orders proceedings are to continue as a claim

-Rule 211(1): A party to a proceeding has a disclosure to each other party each document (a) in possession or under the control of the first party (b) directly relevant to an allegation in issue in pleadings (2) the duty of disclosure continues until the proceeding is decided (3) an allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of

Nature of Duty

-Automatic: Under the old system had to make a request for disclosure, under the rules duty to disclose arises automatically

-Ongoing: even after the close of disclosure still have a duty to disclose documents that are found which have a bearing on the case

-Rule 222: A document mentioned in a party’s pleadings, particulars or affidavits must be produced on request to the opposite party, who may copy it

-Rule 221: If a document relates only to damages is not disclosed unless the other party asks for its disclosure

How To

1 Delivery of a list of documents under rule 214 (providing list of documents and provide copies of documents that are requested)

-Form 19 must be used for list of documents

2 Produce documents for inspection rule 216(1)(a) and 217 where it is not feasible to provide a list

When is Disclosure Required

214(a): If an order for disclosure is made before the close of pleadings

b): If an application for a summary decision is made

c) If as a result of a further pleading or amended pleading, additional documents are subject to disclosure within 28 days after the further pleading or amended pleading is delivered

d) If the first occasion on which a document comes into possession or under control of the party or is located by the party happens after a time mentioned in (a) – (c)

e) Otherwise within 28 days after the close of pleadings

What Must be Disclosed

-Rule 211 (1): Directly relevant to the matter in issue in possession or control of the party

Documents

-s36 of the Acts Interpretation Act

-Broad definition of document

-36(c) covers documents stored electronically as long as under their control or possession

-Directly relevant to a matter in issue

-Matter in issue: Rule 211(3) of the UCPR : An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed (essentially everything in pleadings)

Directly Relevant

-‘Directly’ should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, ‘directly relevant’ means something which tends to prove or disprove the allegation in issue’: Robson v REB Engineering Pty Ltd Per Demack J

Mercantile Mutual Custodians: Does not include documents which lead only to a chain of inquiry

-Could not be said the documents relating to the other branch had to be disclosed but documents relating to a particular employee had to be disclosed as they may tend to prove or disprove allegations

Possession or Control

-Possession: means physical possession do not have to be the owner of the document Turner v Davies

-Control: Erskine v McDowall (approved by Supreme Court in Attard v Whore) Control is a more stringent requirement than power, have to exercise direction over

-Forms sent to Cth Agency which should could not direct agency to give access to but could make an application for freedom of information to get documents.

-Could not command by right Cth agency to hand over documents, did not have control. Did not have to disclose but made order to force application for freedom of information

Exceptions

-Privileged documents

-Documents relating solely to credit

-Copies of documents where the document is identical to the one already disclosed, however, where the copy has been changed or annotated will have to disclose

-Rules 212 and 214(1)

-Still have to refer to them in list of documents (privileged document section in form 19 have to provide description allowing an order to be made about them)

-Can challenge the privilege of the document (rule 213)

Power to make Orders

-Rule 223: Power to order, disclosure of a particular document or class of documents, require a party to provide an affidavit to another party attesting that a specified document does not exist or has never

existed, the circumstances in which a specific document ceased to exist or passed out of the possession or control of the first party

-Court can only make an order if

a) If there are special circumstances and the interests of justice require it (little case law)

b) It appears there is an objective likelihood the duty to disclose has not complied with or (ii) a specified document or class of documents exists or existed and has passed out of possession or control

-Rule 224(1): Court may order a party be relieved of duty to disclose

-Likely time and cost of disclosure

-Relative importance of the question to which the documents relate

-Probable effect of disclosure on the outcome

Failure to Disclose

Rule 225: Cannot tender document without leave of the court, costs orders, liable for contempt for not disclosing the document

Use of Disclosed Documents

Central Qld Cement Pty Ltd v Hardy: Documents are only able to be used for the case for which they are disclosed

McCabe v British American Tobacco: This obligation continues after the finalisation of the case

-Can seek leave of the court to use for ulterior purpose

-Through cross-examination and reporting in the media ever then if the document as been discussed the party still cannot use after the trial

Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd

Home Office v Harman

Sofilas v Cable Sands (WA)

Concerns About Disclosure

-In big proceedings the cost in term of $ and time can be large i.e. Channel 7 case

-Can get to a stage where it undermines the public policy goals of proceedings

-Use as a strategy in the proceedings, i.e. using the costs involved paying for the costs of copying documents etc. Disclosure becomes a large task because of attempts to comply with the rule

Central Qld Mining Supplies v Columbia Steel Casting Co: ‘Directly Relevant’ is not totally black and white can lead parties to over disclose documents

-Rule 224 provides relief from disclosure where effectively the process of disclosure is undermining the goals of the proceedings

-Parties can also agree to a staged disclosure of documents attempting to limit what has to be disclosed by parties

-Rule 241: If in any case, the cost of complying with this part would be oppressive to a party, the court may order another party contribute to the cost of compliance or provide security for the cost

Interrogatories under the UCPR

-Effectively just a series of questions which have to be answered under oath

-Objective is to obtain admission to assists the case of the interrogating party or proof of facts that you would otherwise not be able to prove

-These answers can be tendered as evidence in the trial

-Rule 228: Can only issue interrogatories under the UCPR

-Rule 229(1): Leave of the Court a person may at any time deliver interrogatories (generally will have to wait for disclosure to be completed)

Rule 230(1)(b): Only if the court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving a matter sought to be elicited by interrogatory

-Can be used to get information about documents that no longer exist, details of discussion

-Cannot get for opinions or matters of law

-Can make an application on an ex parte basis

Grounds for Objections to Disclosing Documents and Interrogatories

-Legal professions Privilege: Esso Resources Australia ltd v Commissioner of Taxation

-Advice arm and litigation arm, confidential communications between solicitor and client obtaining legal advice or for use in litigation i.e. correspondence sent to a solicitor for the purpose of giving advice. The test is the dominant purpose for giving the information is to provide advice or in litigation

Waving Legal Professionsal Privilege

Mann v Carnell

Goldberg v Ng

-The content of the document is privilege not the document itself, this can be waived

Rule 212(2): Expert reports are not privileged are not exempt from disclosure this includes draft reports

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd

Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board

Mazelow Pty Ltd v Herberton Shire Council

Brookfield v Yevad Products Pty Ltd

-Without prejudice to privilege

-Self incrimination privilege

-Parliamentary privilege

-Public Interest privilege Rule 239

Third Party Disclosure

-Court rules in Qld refer to non-party disclosure

-Numerous situations where non-parties will have information relating to a case i.e. doctors reports in personal injuries cases

-Equitable discovery from a non-party Norwich Claim

-Rule 242 (1): The applicant to a proceeding may be notice of non-party disclosure require a person who is not a party to the proceedings (the respondent) to produce to the applicant whithn 14 days after service (have to be directly relevant, in possession, is a document the respondent could be required to produce matter at the trial)

(2) The applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document

(4) disclosure is not on-going

-The non-party can object to disclosure

-Lebon v Lake Placid Resort Pty Ltd

Lecture 8

Mechanisms for Achieving Settlement

-These generally come into effect after the process of disclosure it allows both parties to understand the actions of the other parties

-Parties also tend to discuss settlement at this time as they have a better understanding of the costs they will incur in running the matter as well as any potential awards of damages for success

-Most settlement negotiations will have without prejudice privilege, this ensures that communications are ‘off the record’ conversations are confidential and privileged

-This is designed to promote settlement discussions

ADR Process

-Court annexed; arbitration or conciliation

-Less formal settlement negotiations such as exchanging offers, lawyers may simply discuss

Court Annexed ADR-Part 8 of Supreme Court of Qld Act

-Part 7 of the District Court of Qld Act

-Part 5 of the Magistrates Court Act

-Part 4 of Chapter 9 of the UCPR

-Part 6 of the Civil Proceedings Act 2011 which has not yet been commenced

-Mediation is a process under which the parties use a mediator to help them resolve their dispute by negotiated agreement without adjudication. Process is generally run by the parties, i.e. parties chose the mediator, Court can set out the rules or appoint a mediator

-Case appraisal is a process under which a case appraiser provisionally decides a dispute. Novel process to Qld decision is sealed and passed to the Court and is a final resolution unless a party elects to proceed to trial. Rarely used by parties, it effectively requires that a lot of information is given to case appraiser, which is more expensive than mediation may not be seen as an advantage over a trial

-Court order requires that parties attend mediation which is court annexed and cannot impede on the mediation process, any proceedings are stayed until mediation is completed. Conducted on a without prejudice basis. If you settle at mediation where it is court ordered, the agreement must be reduced to writing and sealed and issued to the court. It is easier to get a default judgment based on the compromise

Non Court annexed ADR

-Conciliation: Third party assists parties to identify issues, develop options, consider alternatives and try to reach agreement, conciliator has an advisory as well as facilitative role

Offers of Settlement

-Can sometimes be connected to ADR process

Formal Offers

-Made in accordance with Part 5 of Chapter 9 UCPR

-Encourages realistic settlement negotiations at an early stage in the proceedings

-Increase the chance of resolution of the matter other than at trial

-Cost consequences are attached to these offers

-A party to a proceeding may server on another party to the proceeding an offer to settle claims in the proceedings on the conditions specified in the offer to settle Rule 353(1)

-Must be served on the other party: Rule 353(1)

-Be in writing Rule 353(3)

-Contain a statement that it is made under chapter 9 part 5 of the UCPR rule 353(3)

-Set out the period the offer will remain open and that period must be at least 14 days Rule 355(1)

-Cannot withdraw the offer before period set out in offer expires without leave of the court Rule 355

-Offer lapses at the end of the period it is said to remain open for

-Offer does not lapse just because another party makes an offer Rule 357(2)

-Offer of compromise stands an offer made without prejudice Rule 356 Rodgers v Rodgers

-Any statement of fact made in offer cannot be disclosed in a pleading or affidavit Rule 357(1)

-Acceptance must be in writing Rule 358

Morgan v Johnson: 1)The rules about offers to settle encourage the proper compromise of litigation, in private interests of the individual litigants and the public interest of the prompt and economical disposal of litigation 2)The offeree is obliged to give serious thought to the risk involved in not accepting an offer 3)The prima facie consequence of non-acceptance is that the rule will be enforced against the non-accepting party; this is because, from the time of non acceptance of the offer, the cause of the litigation is the attitude of the party rejecting the offer 4) lying behind the cost rule where there is an offer of compromise is the common knowledge that ‘litigation is inescapably chancy’ the ordinary provision is expected to apply in the ordinary case

Hillier v Sheather

Rule 360(1) Plaintiff

-(a) The plaintiff makes an offer to settle that is not accepted by the defendant and the plaintiff obtains a judgment no less favourable that the offer to settle and

(b) The court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer

-The court must order the defendant to pay the plaintiff’s costs calculated on the indemnity bases unless the defendant shows another order for costs is appropriate in the circumstances

-Generally only get costs for party and party costs or standard costs which generally tends to be 50%-60% of costs. Indemnity costs are higher and may reach as high as 80% of actual costs

-1 make formal offer of settlement (part 5 chap 9)

-2 Defendant does not accept offer to settle within period it remains open (reject or lapse)

-3 Have to get a judgment in your favour either adjudication at trial or summary judgment

-4 Judgment has to be equal or better than offer of settlement plaintiff made

-Can be hard to compare non-money judgments

-5 Plaintiff at all material times is willing to carry out (generally able to prove because offer must remain open)

-6 Plaintiff at all material times are capable of carrying out the offer

-Effectively leaves court discretion as to order

Castro v Hillery: Offer was made about claim, offer was rejected claim was then amended which more than doubled the claim. Plaintiff then got an order for more than the offer. Indemnity costs were not awarded. The basic principle is that the recipient of the offer must have an informed opportunity to assess the chances of either side doing better than the offer. Further that issue must be decided on material disclosed in the proceedings it is the claim as made in proceedings which is under consideration

-Not really looking to settle the matter if looking for the best possible offer

Hobartville Stud Pty Ltd v Union Insurance Co Ltd

Tickell v Trifleska Pty Ltd

Rule 361 Defendant

-Defendant makes an offer to settle that is not accepted by the plaintiff and the plaintiff obtains more judgment hat is not favourable to the plaintiff than the offer to settle

-The court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer

(2) Unless a party shows another order for costs is appropriate in the circumstances

(a) order the defendant to pay the plaintiff’s costs calculated on the standard basis, up to and including the day or service of to settle

Contractual Offers of Settlement

-Informal offers are often made without prejudice where the machinery in the rules is inappropriate of where the rules do not establish a formal regime for making an offer

-Do not comply with Part 5 of Chap 9

-Can still have costs consequences but not automatic

-Referred to as Calderbank offers Calderbank v Calderbank

Cutts v Head

-Be marked without prejudice save as to costs or contain words to that effect

-Set a time period that the offer will remain open for

-Clear and precise

-If you make this type of offer, do not get benefit of rule 360 or 361 but Court still has discretion and can take offers into account

-Onus is generally on the party holding out offer as relevant to costs to prove that party should have accepted

Smith v Smith; Naomi Marble and Granite v FAI General Insurance Co Ltd

Compromise of Action

-When parties settle litigation they may either enter into a contractually binding arrangement, or ask the court to give a consent judgment

-A compromise that takes effect without intervention of the court must be valid as a contract to be enforceable Green v Rozen

-Enforcing a Compromise

-Contractually binding arrangement (settlement reduced to contract)

-Consent Judgment (preferred): makes the settlement enforceable as a court order. Consent judgment is a formal judgement of the court with the same binding force as a judgment given after a successful hearing. It creates an estoppel as to the matters finalised by it and it can be enforced by all the execution procedures provided for the enforcement of judgments.

-Grounds for setting aside consent judgment are the same as for setting aside the agreement on which it is based Tresize v National Australia Bank

-For consent judgement to be set aside it must be shown that the consent was given by mistake, or that one of the consenting parties were taken by surprise in consenting to the judgment

Deputy Commissioner of Taxation v Chamberlain

Harvey v Phillips

Kovalev v Minister for Immigration and Multicultural Affairs

Compromise should be such that it can be enforced on an application in the proceeding that is compromised

-Consent judgment should be preferred may order a stay of proceedings so long as the compromise is carried into effect, should enforcement proceedings then become necessary stay is removed so order can be enforced according to the terms

Roberts v Gippsland Agricultural & Earth Moving Contracting Co

-Differed from Green v Rozen held that in a simple case a compromise is enforceable on a motion for judgment in the proceeding compromised conditions for enforcement in this manner are 1) The proceeding itself must still be on foot 2) Any stay of proceeding must be lifted 3) The claim must be for payment of money on common count such as debt or work and labour 4) The compromise must also be on the terms that the defendant pay the plaintiff an agreed amount on an agreed date 5) The defendant must have agreed to submit judgment in default of payment

Lawyer’s Obligations

-Section 312 of Legal Profession Act 2007: must explain consequences of any settlement offers made by or to client

-Give client a reasonable estimate as to costs

Lecture 9 Summary Disposal and Discontinuance of Proceedings

Default Judgment

-The rules oblige parties to prosecute a proceeding within the time prescribed for each step. Default by the defendant in filing a notice of intention to defend and defence allows the plaintiff to enter final judgment by default (if liquidated) or interlocutory judgment for the assessment of damages (if Unliquidated). If claim is equitable or discretionary relief the plaintiff must apply to the court for judgment if the defendant fails to file a notice of intention to defend

-Failure to disclose documents, answer interrogatories and disobedience to an interlocutory order of the court are other forms of default.

-A default judgment, while not the produce of a trial confers the same rights as judgment given after trial. Can be set aside and is a final judgment only in the sense the court has not exercised its discretion to set it aside. It therefore lacks certainty, there can be difficulties in identifying the issues concluded by default judgment

Kok Hoong v Leong Cheong Kweng Mines Ltd

Discontinuance

-Follows on from settlement and negotiation. If agreement is reached while proceeding is on foot, two options first is consent judgment (unusual, but effective) more common to settle dispute by setting it out in contract, or deed. Once this has been court proceedings have to be discontinued.

-Rule 308A(1): If a proceeding is settled, whether or not request for trial date has been filed

(2) Each party must immediately give the registrar written notice that proceeding has been settled.

-In settlement agreement should have provision as to costs

Rule 304(1): Discontinuance by the plaintiff rules change whether or not defence has been filed

-If a defence has not been filed can simply discontinue by filing appropriate form

-304(2): if a defence has been lodged a plaintiff may only discontinue the proceedings with the court’s leave or with the consent of both parties

-Generally will want to discontinue after defence has been filed because settlement has been reached (308A) or if the action is no longer worthy

-Rule 306: Defendant can withdraw notice of intention to defend with the leave of the court or the consent of the party

-Rule 308(2): Can withdraw all or part of the defence

-Rule 307: Discontinuance costs

(1) A party who discontinues or withdraws is liable to pay (a) the costs of the party to whom the discontinuance or withdrawal relates up to the discontinuance or withdrawal (b) the costs of another party or parties caused by the discontinuance or withdrawal

(2) Discontinues with Courts leave court may make an order for costs it considers appropriate

Judgment Where Failure to File notice of intention to defend and or defence

-Policy rationale is similar to settlement provisions, encourage these type of mechanisms because they want resolution without trial where interests of justice can be satisfied without trial (interests of justice is tantamount)

-These mechanisms are sometimes all labelled as ‘default judgment’ as defendant has defaulted in taking preliminary step of defending

-Failure to File NOID and or defence

-Rule 281(1): Failing to file NOID within 28days from service as required by rule 137

-Rule 281(2): Defence within 7 days of conditional notice of intention to defend becoming unconditional (as required by rule 144(5))

-Requirement that notice is filed within 28 days, this does not mean that NOID cannot be filed after this time. These mechanisms can be undermined if defendant actually serves NOID before obtaining judgment simply failing to comply with rules does not give an entitlement to judgment

Service

-Rule 282: Must be able to prove valid service of the claim, in accordance with requirements for service

-Must require an affidavit of service in rule 120, person who actually served document must attest to its service

-If the defendant does not respond to the claim at all or oppose default judgment there will be contest in relation to the judgment this raises questions about the strength of the judgment

Type of Claim

-Debt for liquidated demand (with or without interest)

-Spain v Union Steamship Co of New Zealand liquidates claim can be ascertained by calculation or fixed by any scale of charges, or other positive data it is liquidated

-Essentially the amount owing can be calculated and the Court does not have to make judgment as to appropriate amount of damages, i.e. default under loan document which stipulates amount and interest rate

-Rule 283: apply to the court for the amount claimed plus interest and costs (rule 2b(iii)).

Rule 283(10): If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiffs claim against defendant

-Interest can only be calculated by contractual provision calculating interest, or an amount pursuant to a practice section under 47 of the Supreme Court Act Rule 283(4)-(9) interest from the day claim arose from the day judgment is given

-If you fail to claim a rate of interest in claim only able to recover the interest from the day the claim is issued

-If interest is claimed at a rate higher than s 47 or higher than the rate set out in the contract, it will not be part of liquidated demand and will not be able to get default judgment

Hungerfords v Walker: Common law right to claim interest but it will not be part of default judgment

-Unliquidated damages/Interlocutory Judgement for Damages

-Court actually has to assess these damages, have to hear facts in relation to the damage and then make determination as to what amount of damages should be claimed

-Rule 284: Can apply for Court to enter judgment for the assessment of damages, will be an interlocutory judgment, can’t get judgment for amount claimed because court will have to assess sets a date for this process

-Effect of this is that defendant must be served with notice of hearing as to damages (possible to imagine defendant does not contest liability but will want to contest damages)

-Plaintiff will have to prove why they are entitled to that extent of damages

-Once damages have been assessed will move from interlocutory judgment to a final judgment : Ex Parte Bridge decided under old court rules but will still apply

Return of Goods

-Claim in detinue, return of particular good or market price

-Rule 285

Possession of Land

-Common law proceeding for recovery of possession of land

-Rule 286

-Rule 286(4): plaintiff not entitled to judgment under this rule for claims for delivery of possession of mortgaged land

Other Cases

Rule 288(1): Rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283-286

(2): The plaintiff may apply to the court for a judgment

(3): On the application the court may give judgment it considers is justified on the pleadings even if the judgment was not claimed

-Likely to apply to equitable claims or claims under a statute

-i.e. claim for possession of land in equity would apply under rule 288

-Have to make application to Court not to Registrar as is the case with the other provisions

Effect of Default Judgment

Kok Hoong v Leong Cheong Kweng Mines Ltd: Essentially it is a final judgment, however, it can be difficult to determine exactly which issues are determined. Determinative of liquidated damages claims, more difficult with equitable claims.

-Lacks the certainty of decision after trial

Setting Aside Default Judgment

-Rule 290: The court may set aside or amend a judgment by default under this division and any enforcement of it, on terms, including terms about costs and the giving of security the Court considers appropriate

-Gives the Court a wide discretion in relation to default judgments

-2 Ways of apply thing discretion given in 290

-Generally determined by whether judgment is regularly entered or irregularly entered

Irregular: Irregular i.e. party challenges effectiveness of service, could be for amount not actually claimed in statement of claim, or judgment under 283 is given as liquidated when it was actually Unliquidated, application for default judgment was within 28 days of claim being entered

-Generally any irregularity will defeat a default judgment, this can be very harsh on plaintiffs especially if irregularity is only small and technical

Cusak v De Angelis: Do whatever is necessary to achieve justice between the parties and to avoid unnecessary delay and express, Court can amend an irregularity under rule 290. In this case defendant gave guarantee which the plaintiff attempted to rely upon which the defendant refused. The Plaintiff then obtained default judgment but claimed interest at 40%. When plaintiff went to enforce judgment, defendant contended that judgment should be set aside because he had a defence (misrepresentation

had been made by the plaintiff) secondly, set aside because it was irregular because they should not have got 40% contract only allowed 30%. Affidavits as to misrepresentation were submitted and the claim was not tenable. Question was whether the judgment should be set aside because of wrong interest. Judgment was corrected to allow the correct interest rate. Decision was upheld by the Supreme Court

Regularly Entered

-Court has always been considered to have a broad discretion

-Considerations: Defendant’s reason for failing to appear or plead, Whether there has been undue delay in applying to set aside judgment, whether the plaintiff would be prejudiced in such a way that could be not be compensated in costs

-If the Court agrees to set aside judgment, and the defendant has been lax costs will be awarded against the defendant

-In order to get default judgment set aside defendant has to provide a very compelling reason

Determining Point of Law as a Preliminary Issue

-Rule 482-486

-Pre-trial determination of question of law

-Court has discretion as to whether to consider question of law separately

-Rule 484: If a question is decided under this part the court may subject to rule 475 make the order, grant the relief, and give directions that the nature of the case requires

Rule 485 the court may in relation to a decision of a question under this part (a) dismiss the proceedings as a whole (b) give a judgment (c) make another order

Inherent Jurisdiction To Strike Out

-Supreme Court has jurisdiction beyond the rules which allows the Court to ensure its processes aren’t abused

-Defendant may fall into default otherwise than by failing to file a NOID

-Groundless proceedings that amount to an abuse of process: Metropolitan Bank v Pooley

Judgment on admissions

-rule 190(1): If an admission is made by a party whether in a pleading or otherwise after the start of the proceeding the court may on the application of another party make an order which the party applying is entitled on the admission

(2): the court may give judgment to make another order even though the questions in the proceeding have not been decided

-Instead of going through trial which would be a farce the court can rely on judgment of admission

Summary Judgment

-Application for summary judgment can be made by a plaintiff or a defendant after the filing of a notice of intention to defence

Rule 291, 292, 293

Plaintiff

Rule 292: Court may give summary judgment if satisfied that 1)Defendant has no real prospect of successfully defending all or part of the plaintiffs claim 2)There is no need for a trial of the claim or part of the claim

-Court may order summary judgment for all or part of the plaintiff’s claim and make any other appropriate order

Defendant

Rule 293: Court can give judgment for the defendant if 1)The plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim 2)There is no need for a trial of the claim or part of the claim

-The court may give judgment summarily for the defendant against the plaintiff for all of part of the plaintiff’s claim or make any other appropriate order

‘No Real Prospect of Success’

-Based on rule 24 of the UK civil procedure rules significant departure from the more stringent ‘triable issue’ test that previously applied

Deputy Commissioner of Taxation v Salcedo: Approved explanation of test given by Lord Woolf MR in Swain v Hillman ‘The word ‘real’ distinguished fanciful prospects of success or they direct the court to the need to see whether there is a realistic as opposed to fanciful prospect of success’

Three Rives District Council v Bank of England (No 3): ‘the criterion the judge has to apply is not one of probability; it is the absence of reality’

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq): ‘That level of satisfaction may not require the meeting of as high a test as that posited by Barwick CJ in General street. The more appropriate inquiry is in terms of the rule itself; that is, whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt, the case that ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case’

-Only the clearest of cases will a summary judgment applicant succeed. The interests of justice require that, generally, matters proceed to trial rather than being disposed summarily if there is an issue of fact or law

‘No Need for a Trial of the Proceeding’

Bernstrom v National Australia Bank: Rule 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule. But in the application of the plain words of 292 and 293 and in particular the consideration of whether there is a need for trial, a court must keep in mind why the interests of justice usually require these issues to be investigated at trial

Lecture 10

Evidence

-How is oral evidence given in a proceeding?

- 3 parts 1) evidence in chief, party calling the witness questions the witness 2) Cross examination the other party’s representative questions the witness 3) re-examination the party that called the witness can ask clarifying questions arising from cross examination

-Produce evidence that proves matters in issue in the trial

-Evidence to sustain claims about a particular process i.e. affidavit of service to enable summary judgment application

-Generally in civil proceedings will rely on documentary and oral evidence

Mode of Giving Evidence

Rule 390: Subject to these rules or a discretion by the Court: (a) evidence at the trial of a proceeding started by claim may only be given orally (b) evidence in a proceeding started by application may only be given by affidavit (interlocutory and normal application)

-Court has a very broad power under rule 367 to provide alternate directions

-Rule 367(3)(d): empowers a court to give a direction in relation to a trial or other hearing in a proceeding that evidence be given by affidavit orally in some other form (includes telephone or video link)

-In deciding to exercise discretion the interests of justice are paramount rule 367(2)

-Court may take into account including those listed in rule 367(4) such as prejudice to a party

Evidence in Applications

-General rule is in 390(b) evidence given as affidavit

-Applications generally involve key questions of law rather than fact,

Affidavit

Rule 430(1): Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally

(2) However, an affidavit for use in an application because of default or otherwise for relief than final relief may contain statements based on belief...(slide)

1. Affidavit can be filed and served under the UCPR but its contents do not become evidence until it is tendered and admitted as evidence in court

2. Court can order that the deponent of an affidavit be examined and cross-examined rule 439 of the UCPR

-Affidavit effectively serves as evidence in chief, can apply for cross examination of deponent rule 439. This is usually done by the opposing party giving deponent notice of cross examination 439(2), (3). If this is not opposed by the other party that application can be granted.

-If it is opposed the Court then has power to rule that deponent is not required for examination 439(5)

-Court will consider the interests of justice in determining this decision

-If it is impossible for the witness to be cross-examined the Court can then consider whether or not the affidavit should be admitted, and if it is admitted the weight to be placed on that evidence

-Court has power to control contents of affidavits

-Can order contents to be limited to matters referred to in rule 430

-Rule 440: If there is scandalous or oppressive matter in an affidavit the court may order that (a) the affidavit be removed from file (b) The affidavit be removed and destroyed (c) the scandalous or oppressive matter be struck out

-Scandalous: unbecoming of Court proceedings, unsubstantiated criminal claims against a party, allegations of criminal conduct by a Judge or other Court officers, unsupported conduct of Solicitors acting for another party

-This arises in cases where the party seeking to submit the affidavit is self-represented

-This is building on the inherent power of the Court to control its processes

Evidence at Trial of a Matter Commenced by Claim

-General rule is that evidence is given orally Rule 390(a)

-Rule 367(3)(d) court can rule that evidence at trial be given other than orally, in deciding this key test is whether or not it is in the interests of justice

-Presbyterian Church of Qld v Hodson: ‘The ordinary course of trial is for evidence to be given viva voce. To give evidence in chief on affidavit is a luxury ordinarily reserved for commercial cases where the perception seems to be that cost does not matter. The reality is that giving evidence in chief by affidavit usually causes increased cost in overall terms’ Fryberg J

-Cases on the supervised case list cases (Supreme Court Practice Direction 6 of 2000)

-Commercial List (Supreme Court Practice Direction 3 of 2002) generally are allowed affidavit evidence

-In preparation for these trials witness statements are generally exchanged by the parties (short form orders 22(a))

-Rationale for this idea in commercial cases is that these tend to be longer cases, that take up a lot of Court’s resources, attempting to reduce time of trial by reducing amount of evidence in chief to be provided. After receiving witness statements will not need to cross-examine all witnesses

Ensuring Attendance of Witness at Court

-Failure to comply with a subpoena is a contempt of court rule 422

-Can serve a subpoena on a party or a non-party

-Pursuant to rule 415(1) of the UCPR a subpoena can require a person to attend to give evidence and or attend to produce documents

-Generally it is good idea to serve even friendly witnesses with a subpoena

-Generally production of documents will be the producing original documents to put those documents into evidence

Process for Subpoena

-File a request for subpoena with copies of subpoena you want to court to issue attached

-Serve the subpoena Rule 421 of the UCPR (ordinary service within Qld is fine, out of state is governed by SEPA)

-Any objection to the subpoena raised. Any objection that is raised will be considered by the Court, unless the objection is successful the person has to comply

-Unless objection to subpoena upheld, witness attends court and or/subpoenaed documents are produced to court

Rule 415(2) Subpoena includes notice ‘adivising the person required to comply with it that the person has the right to apply to the Court to have subpoena set aside on any sufficient grounds including (a)

want of relevance (b) privilege (c) oppressiveness, including oppressiveness because substantial expenses may not be reimbursed (d) non-compliance with rules

-415(2)(a): XSTRAT Ltd v Santos Ltd: Test of relevance is not directly relevant test it is a lower standard, not allowed to subpoena to go on a fishing expedition. Not necessary that you must produce all documents subpoenaed which are not then tendered as evidence. Test is if they are apparently relevant

-415(2)(b): Can rely on privilege merely being commercial in confidence is not enough

-415(2)(c): When asking for a large volume of documents non-parties can have their costs paid for by the party issuing the subpoena ; also argued where documents are not adequately described, subpoena must clearly set out what documents are to be supplied

-Getting a subpoena over documentary evidence does not tender the evidence in Court, generally will have to get a witness to tender the document in Court. Parties can consent that a particular document should be tendered as evidence

Plans, Photographs, Video or Audio Recordings

-Rule 393: Must give other side notice that you are planning to use at least 7 days before the trial

-Once something has be brought in as evidence it can be used by any party in proceedings to substantiate a particular point.

Trial

-Proceeding started by claim

-Can be initiated by the Court setting a matter down for trial or by the parties seeking to have it set down for trial

-Rule 467: request for trial date, this is designed to prevent one party for slowing down the process

Rule 467(1): A party who is ready for trial may prepare and sign a request for trial date

(2) The party who prepared the request for trial date must serve copies of the request on each party and if the party is served is ready for trial the party must sign the request and return it to the party who prepared it

(3) The party who prepared the request must file as soon as practicable a copy of the request signed by both parties in the court

(4) A matter is ready for trial if (a)disclosure is settled (b) orders about particulars have been complied with (c) interrogatories are complete (d) (slide)

-If you refuse to sign a request for trial date have to provide a written explanation as to why, if this is not agreed with by the party can apply to the Court to commence without signature

-Signing and filing a request for trial date need the leave of the court to take any further step in the proceedings i.e. cannot amend pleadings further disclosure etc Rule 470

-This is a mechanism allowing pressure to be put on another party to speed up trial processes

Mode of Trial

-Trial by judge sitting alone, trial by judge and jury

-Where judge and jury, jury answers questions of material fact, Judge determines questions of law

Trial by Jury

-Rule 472 can be elected by party in a statement of claim or in defence

-If fail to request trial by jury can apply to the court for an order that trial be by jury Rule 475(1)

-At order of Court under rule 475(2): If it appears that an issue of fact could more appropriately be tried by jury court may order a trial by jury

-Legislation can specifically prevent trial by jury in certain cases e.g. s73 of the CLA

-Where parties have elected trial by jury, court may order no jury trial in certain circumstances Rule 474(a) the trial requires prolonged examination of records (b) involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury

-Section 283(2)(g) of the Supreme Court Act 1995 gives a judge a discretion to order that the proceeding be determined by judge alone unless both parties demand a jury trial (commercial cases)

-Supreme or District Court can appoint a special referee to; determine or provide a written opinion to the court in relation to an issue of fact in a proceeding Rules 501-505 of the UCPR

-Has been used to determine extent of damage to property or scientific matters

-How does this conflict with expert evidence being given at trial

Separate Determination of a Question of Law or Fact

Rule 483(1): Court may make an order for the decision by the Court of a question separately from another question whether before, at or after the trial or continuation of the trial in the proceedings

(2) The Supreme Court other than the Court of Appeal may also state a case for the opinion of the Court of Appeal

- May seek this where there is a third party claim

Failure to Appear

Defendant: Rule 476(1) Court will still require plaintiff to prove their case, evidence will go uncontested. Court can still consider the defendant’s pleadings in relation to the case. Ultimately Court will decide if it will give judgment to the plaintiff

Plaintiff: Rule 476(2): a defendant is entitled to dismissal of the plaintiff’s claim and the defendant may call evidence necessary to establish an entitlement to judgment under a counterclaim against the plaintiff

-Court has discretion to set aside judgment obtained by default of appearance at trial discretion is unfettered will include

(a) Whether or not the non-appearing party has a satisfactory explanation for the failure to appear

(b) Delay in bringing application to set aside judgment

(c) Merits of the case to the non-appearing party

(d) Whether or not the party who obtained judgment will suffer irreparable harm or prejudice if the judgment were to be set aside

Evans v Bartlam; Cook v DA Manufacturing Co Pty Ltd (Queensland approval)

Trial Process: Jury Trial

Opening statement by Plaintiff’s lawyer Calling of plaintiff’s first witness Questioning of witness; Examination in Chief, Cross examination Re-examination Calling and questioning of other witnesses Opening statements by Defendants Lawyer Calling and questioning of defendant’s witnesses Closing address by plaintiff and defendant’s lawyers Summing up by judge to jury Verdict by Jury Judgment Remedies

-Rule 659: Final relief granted in a proceeding started by claim is granted by giving a judgment setting out the entitlement of a party to payment of money or another form of final relief

Trial Process – Non Jury Trial

-Process is the same except for summing up by judge to jury, Judge reaches verdict and judgment

-As a general rule, judgment is final

-Limited jurisdiction to set aside judgment because of fraud, narrow scope because of need for certainty and finality of judgments

-Rule 667(2) May set aside an order at any time (b) the order was obtained by fraud (d) the order does not reflect Court’s intention at the time the order was given

-Must apply to have the judgment set aside, this is not an appeal against the decision

-Court will consider numerous facts Wentworth v Rodgers (No 5) Kirby:

1. Particulars of fraud must be given exactly the allegation must be established by strict proof

2. It must be shown that judgment was procured by fraud has been new discover of something material in the sense that fresh facts will provide a reason for setting aside the judgment

3. Mere suspicion of fraud raised by fresh facts will not be sufficient

4. The mere allegation or proof of perjury by itself will not normally be sufficient

5. It must be shown by admissible evidence that the successful party was responsible for the fraud

6. The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly effected by fraud of other relevant taint, lies

Wentworth v Rodgers (no 5) was determined on equitable grounds

-Held that the same considerations apply to Rule 667(2)(b)

Slip Rule

-Inherent jurisdiction (equitable) to rectify judgment where it does not reflect the court’s intention DJL v Central Authority

Rule 667(2)(d) Order does not reflect the court’s intention at the time the order was made

Rule 388(1): (a) Clerical mistake in an order or certificate of the court or an error in record of an order or a certificate of the court (b) The mistake or error resulted from an accidental slip or omission

(2) The court, on application by a party or on its own initiative may at any time correct the mistake or error

Harris v Commissioner of Taxation: Consent judgment referred to s 588FF, judgment referred to s 588F

-Will not cover incident where damages were never properly assessed, would have to appeal the judgment in the particular case

-As a general rule very difficult to get a judgment over turned or changed

Costs

-Generally bulk of costs incurred by parties for bringing a claim is in legal fees. Parties generally bear the costs of their own legal representation

-Filing fees, paying for transcript fees are imposed but this is not a cost recovery basis is a nominal fee. Transcripts get close to cost recovery they tend to be quite expensive

-Solicitor and own client costs are all the amounts a party will have to pay a solicitor including hiring experts, barristers, process servers etc.

-The solicitor’s right to payment comes through a contract effectively for the payment of fees

-Standard basis costs (party-party costs) this is a usual costs order will only partly cover solicitor and own client costs, research conducted in Victoria suggests cost award covers 50-60% of solicitor and own client costs

-Indemnity costs exceptional order awarded to party more than standard costs cover a greater amount of solicitor and own client costs 70-80%

-The court has the widest possible discretion over costs orders it may make an order that one party pay another or that no cost order is made

-Latoudis v Case

-Cachia v Haines

Rule 681

Solicitor’s Costs Agreements with Clients

Legal Profession Act 2007

-Must be evidenced in writing s 322(2)

-Conditional costs agreement s 300 of LPA ‘means a costs agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, does not include a costs agreement to the extent to which section 325(1) applies

-Conditional generally means ‘no win no fee’ or ‘no win partial fee’ have to explain what a ‘win’ is in terms of the contract must include clear plain English and there is a cooling off period

-Carve out for sophisticated clients including Government Ministers, Commercial litigants

-Uplift fee defined in s 300 of the LPA ‘Additional legal costs, excluding disbursements, payable under a costs agreement on the successful outcome of the matter to which the agreement relates’ cannot be more than 25%

-Cannot have a contingency fee s 325(1)

-Cost agreements can be enforced as a contract s 326, however, if you do not comply with the LPA the cost agreement will be void, this will then mean the solicitor can only get scale costs

-Client can apply to QCAT or the Supreme Court to set aside the costs agreement on the basis it is not fair and reasonable s 328(1), includes things like fraud or misrepresentation in relation to the

agreements, unsatisfactory conduct or professional misconduct, did the law practice comply with disclosure obligations etc.

-Even if valid enforceable costs agreement client still retains the right to have costs assessed by court ot costs assessor s 335 of the LPA, sophisticated clients are not able to apply for this

Court Jurisdiction in Relation to Costs

-Power to require a party to pay some costs in relation to an action, originally founded in equity and inherent jurisdiction has been expanded to district and magistrates court

-Rule 680: A party to a proceeding cannot recover any costs of the proceeding from another party other than under these or an order of the court (this includes legislation which has specific costs amount)

-Rule 666: Parties can agree by consent to a costs order i.e. settlement made by contract, but part of agreement involves paying costs on standard basis to be assessed under court processes

Costs between Parties

-Rule 681(1) Costs of a proceeding, including an application in a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise (an even refers to a court order on application or a court judgment, discontinuance of proceedings, interim applications)

-Cost of the proceeding mean costs of all the issues in the proceeding includes (a)Costs ordered to be costs of the proceedings (b) costs of complying with the necessary steps before starting the proceeding (c) Costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement

-General rule is that costs follow the event

Oshlack v Richmond River Council: The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought...slide

-Court has discretion to award costs it is not a right on winning the case, usually they will make the standard order unless there is a reason not to

Verna Trading Pty Ltd v New India Assurance Co Ltd: Verna took out a marine insurance policy relating to goods being transported by sea with New India. Policy said goods were covered from the time they left seller’s warehouse until they got to Verna’s warehouse or a place they said they should go. Goods were transported but Verna did not take immediate delivery, left them with Stevedoring warehouse for about 1 month. When Verna did take possession they found goods had been stolen. Attempted to make claim with New India, New India did not respond to the claim. Verna then attempted to sue. New India then argued that there was no insurance, that Verna had suffered no loss, and that the products were not covered. On the first day of trial got leave to amend proceedings. On the second last day of the trial

attempted to argue that the period of holding was outside of the policy. Court accepted New India’s argument Verna could not prove goods were not stolen in transit Court ruled in favour of New India.

New India argued that they should get costs, Court held that costs should not follow the event, it was New India’s conduct that caused Verna to sue, New India had to pay costs up to the first day of trial when pleadings were amended

Costs not awarded generally due to conduct of the successful party. Generally this has to be quite exceptional

Action within jurisdiction of lower court

Rule 697(1): if the relief obtained by a plaintiff in a proceeding in the Supreme Court or District Court is a judgment that when the proceeding began could have been given in a Magistrates Court

(2) The costs the plaintiff may recover must be assessed as if the proceeding as if the proceeding had been started in the Magistrates Court unless the court orders otherwise

-Costs will be awarded at the scale they would be in the lower court

Costs when Parties Joined

-Was it reasonable for the action to be commenced in the Court it began in i.e. head of damages is thought to be higher than it actually is. Must be done legitimately with a genuine belief

Rule 684(1): The Court may make an order for costs in relation to a particular question in, or a particular part of a proceeding

(2) For sub-rule (1) the court may declare what percentage of the costs of the proceeding is attributable to the question of the proceeding to which the order relates

-Essentially the Court can divide the costs in relation to a particular part of the proceedings or in relation to a particular question in the proceedings. Generally the Court will not proportion costs if it is unfair or arbitrary, will consider time taken to hear particular questions conduct of the party.

Gould v Vaggelas: Mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. A Bullock order should only be ordered if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant and if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution

Bullock order: Plaintiff is ordered to pay the successful defendant’s costs which effectively become disbursements in proceedings. Unsuccessful defendant then has to pay plaintiffs costs which will include the costs owing by the plaintiff

-This can be made difficult the unsuccessful defendant becomes bankrupt

Sanderson Orders: Unsuccessful defendant has to pay successful defendant directly

-Essentially will turn on whether or not the plaintiff should have joined the other defendants

Lackersteen v Jones (no 2)

Costs against Non-Parties

-Only in exceptional circumstances

-Usually where non-party is so linked to one party that they are almost indistinguishable e.g. liquidators and a company they represent

-Litigation funders, it is not contrary to public policy for these companies to exist, not an issue which has yet come before a court, however, potentially scope that they would have to pay costs

Campbells Cash and Carry Pty Ltd v Fostiff

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd

Knight v F P Special Assets

Symphony Group Ltd v Hodgson

Types of Costs

Rule 702(1): Unless these rules or an order of the court provides otherwise, a costs assessor must assess costs on a standard basis

(2) When assessing costs on the standard basis, a costs assessor must allow all costs necessary or a proper...slide

Hennessey Glass and Aluminium v Westpac Australia: ‘Costs are necessary if the litigation could not have been carried on reasonably without them. Costs are ‘proper’ if it was reasonable for a client with a competent solicitor to have incurred those costs in carrying on the litigation’

Indemnity Order

Rule 703(1): The court may order costs to be assessed on the indemnity basis

(3) When assessing costs on indemnity basis a costs assessor must allow all costs reasonably incurred and of a reasonable amount having regard to (a)Scale of fees (b)agreement between party to whom costs and payable and the party’s solicitor (c)Charges ordinarily payable by a client to a solicitor for work

Rule 687 (1): If under these rules or an order of the court, a party is entitled to cost the costs are to be assessed costs (slide)

Assessing Costs

-Rules 705-743R

Misconduct of Litigation

Rule 690: The Court may order a lawyer to repay to the Lawyer’s client all or part of any costs ordered to be paid by the client to another party if the party incurred the costs because of the Lawyer’s delay, misconduct or negligence

-Supreme Courts have always had this power, but know under the rules power extends to district court and to magistrates court

-Simply pursuing a ‘hopeless’ claim is not enough as long as it is in good faith. If you know the whole purpose of bringing the claim is not to succeed could be ordered

Flower & Hart: Solicitor allowed client to pursue a long and lengthy trial process in order to delay large payment owing under the contract. Client had an ulterior motive, once put into liquidation solicitors were forced to pay the costs

Ridehalgh v Horsefield

Levick v Commissioner of Taxation

Appeals

-No Common law or equitable right to appeal all comes from statute

-Usually asking a higher court to reverse, set aside, over turn or otherwise vary the judgment in a particular matter or some other matter

Types of Appeals

-An appeal from a civil trial usually takes the form of appeal in a strict sense or appeal by way of rehearing

Appeal in the Strict Sense

-Appeal to the high Court raising the question of whether or not the judgment at first instance was correct when first decided

-Cannot consider new evidence, apply the law that existed at the time of the original decision, can hear a new legal argument as long as it relies on the same facts

Victorian Stevedoring Company v Dignan: Breach of the water regulations and was convicted, the regulations were later over-turned and then appealed. High Court had to apply the regulations as if it was still in force

Appeal by way of rehearing

-Re-determines the rights and obligations of the parties at the time of the re-hearing, can consider new evidence (generally not oral evidence) applies law at date of rehearing and can consider new legal argument

-Still have to justify the rehearing i.e. problem with findings as to fact law or proper exercise of discretion

Queensland

Rule 765 of the UCPR

-Sets out procedural aspects of obtaining an appeal

765(1): Appeal by way of rehearing

(2)An appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation by a court is brought by way of appeal

Rule 766(1)(a) Court has all the powers and duties of the court that made the decision appealed from

(b)may draw inferences of fact, not inconsistent with the findings of the jury and may make an order the nature of the case requires

(c)May on special grounds receive further evidence as to questions of fact either orally in court by affidavit

(5) On hearing an application for a new trial or to set aside the verdict the court of appeal may if satisfied it has before it all the material necessary for finally determining any or all of the questions in dispute or for awarding any relief sought, give final judgment in the matter and may for that purpose draw any inference of fact not inconsistent with any findings of the jury

-Generally very difficult to succeed on an appeal for an improper exercise of discretion, would have to show a mistake of fact or taking into consideration an irrelevant consideration not taking into account a relevant consideration

Rule 770: On hearing an appeal it appears there should be a new trial court of appeal can set aside case and order a new trial. Needs to be a substantial wrong or miscarriage more than just wrong evidence being admitted or rejected, have to show a substantial wrong which can’t be rectified by appeal by rehearing

-New trial tends to be awarded where there is a miscarriage of the trial, where the verdict that was reached by the jury is against the weight of the evidence provided

Procedure for Appeal

-Rule 746-760

-746(1): An appeal is started or an application for new trial is made by filing a notice of appeal have to serve this

-748: Must be done within 28 days of decision being made and served as soon as practicable

Enforcing Judgement

-This should be kept in mind at the start of the proceeding, if the defendant does not have the ability to pay and order, or could not pay legal costs may end up worse off if the party cannot pay

-The High Court and Federal Court do not have enforcement procedures they can be enforced through the state courts

- s 86 Supreme Court Act do not need to demand compliance with an order before you can start enforcement proceedings, however, some legislations will require service

-Do need to make sure judgement is filed in the court so it becomes part of the court file (particularly important for money judgement rule 661)

Enforcement of Money Judgment

-Enforcement debtor: required to pay

-Enforcement Creditor: Person who has to be paid by the enforcement debtor

-Look to hold an enforcement hearing, obtain information about the enforcement debtor’s financial position, however, this costs money and may not be needed

-Rule 803: The purpose of the an enforcement hearing is to obtain information to facilitate the enforcement of a money order

-Rule 804: Timing of an enforcement hearing, directly after trial (end of trial hearing) or any time after an order has been made, there are some time considerations, need leave of the court to commence enforcement proceedings if more than 6 years after the judgement is given

-Form 71: Statement of financial position, has to be completed and returned within 14 days if they fail to do this can be contempt of court

-Could make application after receiving statement of financial position, if not enough information given or to sceptical can then get an enforcement hearing summons can also require them to resupply a financial statement document which would then become a court document

-Rule 812: Can subpoena to a person having relevant knowledge about the circumstances of an enforcement debtor (2) A person required to attend an enforcement hearing by subpoena must be served with subpoena by ordinary service at least 14 days before the enforcement hearing

Rule 828: Seizure and sale of property, court may issue an enforcement warrant authorising an enforcement officer to seize and sell in satisfaction of a money order all real and personal property (other than exempt property) in which the enforcement debtor has a legal or beneficial interest

-not limited to things they are a sole owner of can include things they partly owned, this tends to complicate matters though

-Property which is exempt from seizure by the trustee in bankruptcy including assets held on trust, most ordinary household or personal items, tools used to earn an income, vehicles up to threshold value, life insurance policies, superannuation, compensation for any personal injury, awards of a sporting, cultural, military or academic nature such as medals or trophies may be exempted by a vote of creditors

-Rule 828 allows the court to exercise seizure done through court officers, you then become responsible for looking after the asset once it has been seized

-Rule 829: Tries to balance situation where enforcement debtor has assets particularly important being seized and sold where there are other assets which could be seized and sold 829(b) have to attempt to minimise hardship to enforcement debtor when deciding what to seize and sell

Rule 840: Re-directing money which should be paid to enforcement debtor to be paid to you. Orders a third party to pay enforcement creditor amounts owing to enforcement debtor. This is a separate rule to earnings

840(2): Does the enforcement debtor have the adequate means of satisfying the order after deducting necessary living expenses of the enforcement debtor and the enforcement debtor’s dependants

-Can’t cause unnecessary hardship

Earnings

-Wages salary, fees bonuses, commission, over time pay or other compensation annuities pension, overtime pay, or other compensation owing to the enforcement debtor

Rule 855(1): A court may issue an enforcement warrant authorising redirection to an enforcement creditor or particular earnings of the enforcement debtor

Rule 868: Payment by instalments by enforcement debtor

Rule 868(2): A court may make the instalment order (a) when making a money order or (b) on the application of a party (the applicant) at any later time before the money order has been satisfied

Rule 869(1)(a): Whether the enforcement debtor is employed (b) the enforcement’s debtors means of satisfying the order (c) Whether the order debt including any interest, will be satisfied within a reasonable time (d) the necessary living expenses of the enforcement debtor and the enforcement debtor’s dependants

Rule 875: Charge order or all or part of the debtor’s legal or equitable interest in property this is equivalent to an equitable charge. This type of order is useful for shares where they may increase in value

Rule 885: A receiver may be appointed in an enforcement warrant even though no other proceeding has been taken for enforcement of the money order to which the warrant relates. This could be used where debtor has an asset such as property which is rented out etc stops disputes between spending on asset as opposed to paying enforcement debt

Atkins v Shephard: What he gets by appointment of a receiver is not execution, but equitable relief, which is granted on the ground that there is no remedy by execution at law it is a taking out of the way of hindrance

Non-Money Orders

Contempt

-Contempt can be used in a number of ways to enforce judgment i.e. financial position statement not being completed

-Good at enforcing non-money order which does not include possession of goods or property i.e. injunction to prohibit someone doing/not doing something

-Rule 921-932

Arrest

Rule 935: Court may issue a warrant for arrest of defendant if the it satisfied that (a) the defendant has absconded or is about to abscond (b) the absence of the defendant would materially prejudice a plaintiff

-Key point to understand is the difficulty in enforcing judgment against certain parties, if they lack property, assets or income there may be little point in attempting to collect the money

-Generally at commencement of litigation do an asset search to see if they have assets or income

Lecture 12 QCAT

-Queensland Civil and Administrative Tribunal

-December 2009 incorporated jurisdiction previously fulfilled by 23 different bodies,

-Adjudicators tend to do civil claims as well residential tenancies work, all magistrates are part of the QCAT system to deal with small claims residential tenancies

-Human Rights, Civil disputes (building disputes largely) Administrative work (review of government decisions licenses, animal management act)

-Last financial year received 30,032 application finalised 27,000 (91%), minor civil matters mediation 41% success, larger civil matters success 60%

-Strong emphasis on ADR in QCAT

-Use specialists who aren’t lawyers frequently 3 permanent members are psychologists

-Solutions focused organisation, bring matters to a conclusion, deal with matters in a way that is informal, efficient and quick

-Must act fairly, based on substantial matters of the case, with principles of natural justice

-Each party must understand assertions made in the proceedings and the legal obligations of those assertions. The act requires QCAT to ensure that each party understands the proceedings. This has significant applications to the adversarial nature of litigation

-QCAT has obligations on the parties to act quickly in any dealings with the proceedings (can have costs ordered or case dismissed) but mainly the QCAT act imposes obligations on the tribunal members. QCAT act requires tribunal members to ‘descend into the arena’ and tell parties how to run a case, differs from case management in that it does not permit case management it has a positive obligation to do so

-Must provide an accessible forum, parties must represent themselves unless the interests of justice requires otherwise

-Cultural and linguistic needs of applications, cater for children and those lacking capacity

-Tribunal must do this in a way that is fair to all and cost effective for the parties

-Providing fairness for one in the context of fairness for all requires responses to imbalances in proceedings. If members fulfil obligations imposed on them it would undermine ‘forensic advantages’ used to defeat an opponent in adversarial litigation

-Actively fair and efficient process not merely controlling the process.

Legal Representation

-s43: The main purpose of this section is to have parties represent themselves, unless the interests of justice require otherwise

- Defined categories where legal representation is a right, not controversial s 43(2)(b) children, impaired capacities, disciplinary proceedings right to representation

-Leave to be legally represented, in the past tribunals if the parties consented to representation that was the end of the matter - now have to persuade the tribunal that the interests of justice require representation

-Nature and complexity of issues involved, generally interpreting contractual clauses is not complex, amount of the claim is not evidence of complexity

-When a party is under a disadvantage when they are not represented would require representation i.e. illiteracy

-Consenting to the other side being represented is a start if both parties are represented or if self-represented party is not against the proceedings

-Not seeking an order for costs against the losing party may reduce fears about unequal opposition

-Compulsory Conferences independent tribunal member who does not determine the matter hears the conferences, explore issues with party’s jointly and individually.

-No plea bargaining that binds a tribunal in process

-Main purpose of CoCo is resolution of matter

-Secondary purpose is understanding the arguments made for and against rather than doing it at a hearing. This is done in a conference often in a private session rather than a joint session

-Third purpose of a CoCo is to case manager, set directions at the end of the conference set out issues to be determined reduce the scope of the dispute. Can make directions of ordinary case management for disclosure etc.

-Expert Conclaves: earlier that experts are involved the more positive the contribution of the advice will be to early resolution. Experts attend without clients and lawyers. Member chairs the conclave to deal with power imbalance i.e. seniority member also defines issue and questions to be addressed, sometimes agreed by the parties or by the Tribunal if they cannot agree. Experts will produce a joint report highlighting agreement and disagreement

-Assessors: Appoint any person to be an assessor the provide opinion, report, fact find etc. It has been used in two ways, anti-discrimination case State refused to give expert opinion; applicant did not have funds for expert, appointed assessor to deal with issue of learning disability and to provide advice to legal member to make the decision

-Second way it has been used, is ‘tree disputes’ arborists have been trained in QCAT processes arborist then goes at a date that is fixed and inspect the tree.

Exam topics not assessable

-Joinder of Parties and Causes of Action

-Evidence

-Appeals

-Enforcing Judgment

-QCAT

-Appeals

-Costs not directly assessed by knowledge MAY assist you, understand different types of costs orders that can be made, generally understand broad discretion courts have in relation to costs

-The rules of Pleading in a civil case, the statement of claim

-Replies answers

-The rules of pleading in a civil case the defendants response

-Suppression orders

-Detention and preservation

-Negotiation techniques

Assessable

-The selection and renewal of originating processes

-Parties to a proceeding

-Service of an originating process

-The defendants response to service on an originating process

-Case management

-Judgment

Civil Procedure Case List

State of Qld v JL holdings Pty Ltd: 6 months before trial after the close of pleadings Qld, sought to amend its defence, which was refused to Kiefel J in the Federal Court as it may jeopardize the trial dates which had been set. High Court overturned the decision cases needed to be determined on merits and only in exceptional circumstances should case management procedures outweigh this. Decision emphasised justice between the parties

AON Risk v ANU: Unanimous decision property was destroyed by in bushfire ANU brought action against insurer and insurance broker. Matter was set down for 4 weeks and after the first couple of days ANU settled against insurer. ANU then sought to amend pleadings against the broker in the middle of period set out for trial. 4 Months later judge reached decision on this matter. High Court held could not grant

leave to amend. Justice is not just the needs of the parties but to the public as well ‘speed and efficiency in the sense of minimum delay and expense are seen as essential to a just resolution of the proceedings. The modern view is that even an order for indemnity costs may not always under the prejudice a party suffers by later amendment’

Wardley Australia Ltd v WA: Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision

Baxter v Commissioner of Taxation: State jurisdiction is the authority which state courts possess to adjudicate under the state of Constitution and law, federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws

Capital TV and Appliances Pty Ltd v Falconer: The jurisdiction conferred on the High Court by ss 73 and 75 of the Constitution. The jurisdiction Parliament confers on the High Court under s 76 of the Constitution or on some other federal Court under ss 71 77(i) of the Constitution

Fenton v Mulligan: Federal jurisdiction vested in state courts will retain its federal character even when it is exercised by state courts

Re McBain; Ex Parte Australian Catholic Bishops Conference: There is a controversy between the parties the quelling of which the judicial power of the Commonwealth must be invoked, matter is broader than legal proceeding

Australian Temperance and General Mutual Life Assurance Society Ltd v Howe: Between states or between residents of the different states or between a state and a resident of another a corporation is not a resident for this section

Phillip Morris v Adam P Brown Male Fashions: One matter in dispute was about whether or not plaintiff was entitled to protect trademarks ‘federal and non-federal proceedings must so depend on common transactions and facts that they arise out of a common substratum of facts’

Re Wakim: Wakim won a personal injuries claim against one of the partners of the partnership business for which he worked. The partner was then declared bankrupt, the trustee in bankruptcy brought an action against the other partner and the other partner settled and gave $ 10,000 toward Wakim’s damages. Wakim brought an action against the trustee in negligence and breach of duty as trustee was based on the argument that they should have pursued the wife for more, and then sought to join claims against the barrister and solicitor for negligence. It was held the Federal court had accrued jurisdiction to hear all claims as they all flowed from one controversy.

ASIC v Edensor Nominees: When Federal Court exercises state laws it applies as Federal law

Kelly v Apps: State Supreme Court has jurisdiction to right any wrong that may occur in the administration of justice

Riley McKay Pty Ltd v McKay: Court has inherent jurisdiction to properly exercise its power performs its functions and control about abuse of process

DMW v CGW: Supreme Court is a superior court of record presumption it will have jurisdiction

Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd: District Court is not a superior court of record there is not a presumption that it acted within its jurisdiction

Johns v Johns: The award of interest in a magistrates court decision can push damages beyond $150,000 limit without prejudicing jurisdiction of court

Bollen v Hickson: An issue decided in a Magistrates Court action creates an estoppel in subsequent proceedings involving the same issue in another Court even the Supreme Court

Bankinvest AG v Seabrook: Conferred on each of the ten courts Australia-Wide jurisdiction

World Firefighters Games Brisbane 2002 v World Firefighters Games WA Inc: Factors considered when deciding which court should hear a matter

BHP Billiton v Schultz: Court weighs up convenience and expense of each forum, availability and location of witnesses location of parties, procedural advantages of each forum, the substantive law to be applied to determine the dispute

William v Spautz: The date of the originating process is conclusive in terms of deciding whether a statutory defence will apply

Cameron v National: An adequate description of the parties on the originating process is essential

Russell v Russell: Court proceedings must demonstrate the process is fair and free of corruption and special deals for selected litigants

J v L & A Services Pty Ltd: Husband and wife contracted aids from their employer and wanted to use initial to avoid embarrassment and distress

Gillies v Dibbetts: Stale claim can still be served if the court waives the irregularity

Muirhead v Uniting Church in Australia Property Trust: A claim including a stale claim can be renewed by a court if there is another good reason to renew the claim

Laurie v Carroll: An application to set aside service should be made before judgment is entered. An order allowing substituted service was set aside because when it was made the defendant had already left the jurisdiction and the cause of the action alleged was not such as came within the rules for service outside the jurisdiction

Tuckerman v Nevill: In actions in personam service founds the courts jurisdiction

Ainsworth v Redd: ‘obligation of personal service thereby removes the risk that the jurisdiction of the court over the person named will be asserted, conclusions reached and orders made, without proper initial opportunity being given to the person named to appear and defend the proceedings

Scalpelli v Maguire: Document left with relative who promised to give to the defendant this was not personal service

Major v Australian Sports Commission: Defendant lived at Pullenvale, process went to the house at 8:30pm asked if he was the defendant, the defendant responded with ‘who are you’ eventually asked process server to leave. Process server then asked neighbour if the defendant was person he was looking for neighbour said he was left documents in driveway, this was not effective service under either arm of Rule 106

Elders Finance Ltd v Invaway Pty Ltd: The defendant’s solicitor may agree, on instructions from the defendant to accept service. An endorsement of the acceptance of service is noted on a copy of the document and service is then taken to be duly effected. If the defendant fails to enter an appearance the plaintiff is entitled to enter judgment by default

Simpson v Bereton: A solicitor who gives an undertaking to appear on behalf of the defendant and who then considers that an appearance should not be entered must apply to the court for a release from the undertaking

Porter v Freudenberg: To get substituted service the plaintiff has to show that, as at the date of the application for substituted service it is impracticable to effect prompt personal service and that the proposed mode of substituted service is the best way to bring the documents to the defendants notice

Miscamble v Phillips and Hoefilch:

Citigroup Pty Ltd v Weerakoon: Judge did not allow for substituted service via facebook nothing on the page showing that the page was created by the defendant and service could not be affected

MKM capital Pty Ltd v Corbo & Poyser (unreported): Defendant defaulted on loan with MKM. MKM obtained default judgement then had to serve this on defendant. Court allowed service via facebook date of birth given on page matched as well as friends list produced

Pioneer Concrete (North Coast) Pty Ltd v Bennett: Can provide conditional notice of intention to defend where service has not been effective, failure to serve

Sheldon v Brown Bayley’s Steel Workd Ltd: Stale writ was served, defendants entry of unconditional notice waived any right in relation to any right to bring up service of stale writ

Caltex Oil v The Dredge Willemstead: Unconditional notice can be seen as submitting to the jurisdiction of the court

Thomson Australia Holdings Pty Ltd v Trade Practices Commission: Unconditional notice does not create subject matter jurisdiction that the court would have had

Coe v Queensland Mines: Jurisdiction over subject matter is another head of jurisdiction and that is not conferred, nor do the parties submit to it, by filing of an unconditional appearance

Dare v Pulham: High Court allowed a less than strict adherence to particulars in a statement of claim. Plaintiff in a personal injury claim had to give particulars of any loss of earnings and loss of earning capacity. The plaintiff gave those particulars and the loss suffered. At trial the plaintiff gave evidence of loss substantially greater above the amount set out in particulars. High Court held that particulars did not limit the amount the plaintiff claims where that duty did not otherwise exist. The particulars gave notice that the plaintiff claimed damages for loss of earning capacity. By stating the amount of loss the plaintiff was not limiting the claim to any specific amount

Bruce v Odhams Press: The material facts of the claim or defence must be pleaded, necessary for the purpose of formulating a complete cause of action

Byrd v Nunn: Any facts the defendant proposes to prove at time of trial must be specifically alleged in the defence

Thorp v Holdsworth: Pleadings must define the issues so that the parties know the ‘real point’ to be decided at the trial. The ‘whole meaning’ of the system was to ‘narrow the parties to definite issues’

Pinson v Lloyds & National Provincial Foreign Bank Ltd: Defendants pleaded a double negative pregnant. Defendants were bankers who conducted business on the plaintiffs behalf, mostly buying and selling securities. An action was brought because some transactions the defendants did not comply with the plaintiff’s instructions. 3 types of double negative 1)may be a mere denial not involving a positive assertion 2) It may assert a positive proposition 3)Its true nature may be in doubt

Davie v New Merton Board Mills: Defendant cannot in pleading a denial adduce evidence at trial beyond merely contradicting the plaintiff’s evidence

Central Sawmilling No 1 Pty ltd v Queensland: Principled applied to decide if they will disallow an amendment under rule 379 are the same that applied if the proceeding at any time i.e. requirements in AON Risk Insurance

Re Carrington Cotton Corp Ltd: Original claim sought relief from oppression under the corporations act SOC was further amended made knew allegations that directors had breached fiduciary duty to the company entering into a particular agreement. Fiduciary claim was not maintainable alternative claim was not adequately particularised. Amendment was not maintainable because claim was not adequately particularised refused leave to amend as it substituted an entirely new cause of action

Balisteros v Chidlow: Pleadings are to state with sufficient clarity the case that must be met rule 166(4) provides that this is beneficial to achieving the object particulars do not need to be pleaded back to

James v Hill: Application of Rule 166 relates to factual issues not to duties arising from know or agreed facts, because those matters are matters of common law

Melco Engineering v Magnetics: No obligation to plead evidence, respond to allegations of fact which particularised without pleading fact rule 149(1)(b) deals with distinction. Statements in pleadings which are not allegations of fact do not require further response under rule 166(4). Allegation as to evidence or an explanation does require a response

Groves v Australian Liquor Industry: Court considered were it was given bare denial (denial without giving explanation) held there needs to be a statement of fact as to why it is untrue

Vaker v Linklater: Defendants do not admit allegations in paragraph x because they are unable to attest to the truth themselves

Payne v Young: 2 Plaintiffs both subcontractors to the contract to provide separate services both plaintiffs claimed they were owed money under their respective contracts with the first defendant. Could not join as plaintiffs as the cause did not arise out of the same transaction even though they shared characteristics of being subcontractors there were discrete contracts, just having the same defendant will not give rise to a right of joinder

Parkes v Smith: Plaintiff sued three defendants in one proceeding for defamation. First and second defendants were members of the game fishing club the third defendant was the club itself. After plaintiff resigned the first and third defendants publish defamatory material. At a following meeting further defamatory remarks were made by the second defendant. Hey could not all be joined two separate allegations of the publication of defamatory material. They were able to be joined under rule 65(2)(b) because it was difficult to tell which action had caused the damage to the plaintiff

News Ltd v Australian Rugby League Football: Federal Court accepted the Privy council formulation for adding a party in Penang Mining Co Ltd v Choong Sam

Macquarie Bank Ltd v Lin: MB lent money to Coy guaranteed by Lin. Guarantee required Lin not to dispose of any interest in a particular Norman Park Property + to maintain a net worth of $5M or more but no security taken over property. Lin’s parents commenced proceedings seeking declaration they Lin held the Norman park property on trust for them. Lin was not going to oppose the effect would have been that net worth would have been less than $5M. MB sought to be joined to the proceedings, held that MB were necessary to the proceedings as they had a right to stop Lin not opposing the order and they would be directly affected by the outcome

Duke of Bedford v Ellis: 1)Must be a common interest 2) There must be a common grievance 3) The relief must be beneficial to all parties who are represented by the party on the record

Campbells Cash and Carry Pty Ltd v Fostiff Pty Ltd: Even if a proceeding is properly commenced as a representative proceeding the court, via the rules, has a discretion to order that the proceeding continue otherwise than as a representative proceeding

Markt & Co Ltd v Kinght Steamship Company: Ship sank and owners of cargo sought to bring a representative action against the company, held they each had different contracts, cargo was going to different ports, assessing damages would have to be done on an individual basis

Carnie v Esanda Finance Corp Ltd: Same interest test is satisfied where there was a significant question common to all members of the class and they stood equally to be affected by the relief being sought

King v GIO Australia holdings Ltd : To bring a group proceeding in the Federal court must have 1)Seven of more claimants 2) Must have claims arising out of the same, similar, or related circumstances against the respondent 3) Giving rise to a substantially common issue of fact or law

Wong v Silkfield Pty Ltd: At the commencement of a group proceeding it is not necessary to show that the resolution of the common issue would be likely to resolve the claims of all group members. The plaintiff alleged the purchasers of units in a block of home units were mislead by misrepresentations in a statement the defendant made.

Finance Sector Union of Australia v Commonwealth Bank of Australia: If the interests of the group members diverge sufficiently the court may have to make an order that the group members proceed individually. The existence of some non-common issues does not take the proceeding outside the statutory conditions for a representative proceeding. Applicant commenced a group proceeding because of the respondents alleged breaches of an industrial award and for alleged breaches of contracts of employment

Australian Broadcasting Corporation v O’Neil: An interlocutory injunction is proper if: The plaintiff has a prima facie case such that, if the evidence stays the same there is a probability that the plaintiff will succeed at trial 2) The inconvenience or injury the plaintiff is likely to suffer if the injunction is refused outweighs the injury the defendant might suffer if the injunction is granted 3)The balance of convenience indicates an injunction

Hyatt of Australia Limited v Coolum Resort Pty Ltd and Ors: Hyatt company managed the Coolum resort, the owner of the Coolum resort were companies all connected to Clive Palmer. Agreement between Palmer and Hyatt allowed management to continue. Then later claimed that managers had breached the contract and it would be terminated. An interim injunction was granted to prevent signage being removed. Several days later an interlocutory injunction was granted until the end of the proceeding. If the court did not grant the injunction and allowed repudiation by defendants would not have been able to compensate damage to the ‘Hyatt’ brand. As well as this the Hyatt also had a strong case and the granting of the injunction was not going to inconvenience third party’s such as the administrators who had been appointed.

Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd: Supreme courts have an inherent power to make orders to preserve property

Rooskov v Laconholme Pty Ltd: Inspection has to be necessary, necessary for doing justice between the parties ‘inspection sought is necessary in the sense that there is good reason to thank that the applicant will be prevented from obtaining just resolution of the case unless such an order is made

Welch v Rodgers: Copy financial records and documents from defendant because they were worried they were going to be destroyed

Jackson v Sterling Industries: Mareva orders (inherent jurisdiction of Superior Courts) essentially prevent a party from disposing assets or removing them from jurisdiction to frustrate a court case. This has been extended to locally based companies and disposing assets within the jurisdiction

Anton Piller KG v Manufacturing Processes Ltd: Seizure of documents as evidence made ex parte often involve intellectual property disputes. Plaintiff planned to take action against English agent in relation to IP were worried they were going to be destroyed

Rank Film Distributors Ltd v Video Information Centre: Evidence that copies of films were being made order was given to enter property to seize evidence

John Fairfax Publications Pty Ltd v Ryde Local Court: Necessity for granting a suppression order will arise only in wholly exceptional circumstances

O’Shane v Burwood Local Court: Court applies strictness requirement when determining whether it was really necessary to exercise the power to suppress disclosure or publication

Rinehart Case: 3 of 4 children sought to have Gina removed as trustee. G sought suppression order in NSW under model legislation. Basis or case was a clause that any dispute would be arbitrated confidentially, also added a clause for protecting safety (as this was directly mentioned in the legislation) NSW court of appeal decided that she did not meet the ‘wholly exceptional’ circumstances test

Discovery

Computershare Ltd v Perpetual Registrars Ltd: Court made a Norwich order to compel the defendant to give discovery of certain documents before the close of pleadings. Norwich order is not limited to identifying a tortfeasor. It may be made to trace the disposition of funds obtained fraudulently and for misuse of confidential information before the plaintiff delivered its statement of claim. Discovery was ordered to identify the actual information that was misused

Re Pyne: Affirmed that Norwich orders apply in Queensland. Involved a circular newsletter which contained defamatory allegations, publisher had to disclose identity of the person who had made the defamatory remarks

Robson v REB Engineering Pty Ltd: ‘Directly’ should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather ‘directly relevant’ means something which tends to prove or disprove the allegation in issue

Mercantile Mutual Custodians: Does not include documents which lead only to a chain of inquiry

Erskine v McDowall (approved by Supreme Court in Attard v Whore) Control is a more stringent requirement than power, have to exercise direction over

Central Qld Cement Pty Ltd v Hardy: Documents are only able to be used for the case which they are disclosed

McCabe v British American Tobacco: This obligation continues after the finalisation of the case

Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd: An expert witness was given documents was given documents to study so he could give evidence. After the action was settled he sold them to the Times which proposed to use them as the basis of a feature article. Court considered this to be a misuse of the documents and it granted an injunction. Preparation of a newspaper article was not part of the purpose for which the documents were made available

Home Office v Harman: The House of Lords accepted that an implied undertaking limited the use of a document made available on discovery. Respondent was a solicitor who was retained to conduct litigation in High Court. Home Office produced documents as part of discovery . After trial respondent gave journalist access to all of the documents after they had been summarised in trial. Giving the journalist access was an ulterior purpose. Giving the journalist access was acting outside the purpose for which the documents were made available.

Sofilas v Cable Sands (WA): A party who has a legitimate need to use material obtained on discovery in another action has to apply to the court for a release from the undertaking. In this case expert witnesses were refused leave to publish material which they had been given access to in discovery

Central Qld Mining Supplies v Columbia Steel Casting Co: Directly relevant is not totally black and white can lead parties to over disclose documents

Esso Resources Australia Ltd v Commissioner of Taxation: High Court abandoned the sole purpose test of legal professional privilege and replaced it with the dominant purpose test. The main objection to the sole purpose test was its extreme narrowness. Regarded as especially problematic for corporate or bureaucracies

Mann v Carnell: High Court observed that at common law, anyone who has the benefit of legal professional privilege may waive it. ‘Waiver’ is a vague term that often requires further definition according to context. Waiver occurs where the conduct of a person who has the benefit of legal professional privilege is inconsistent with the maintaining of confidentiality of a communication

Goldberg v Ng: Voluntary disclosure usually effects a waiver. Goldberg was a solicitor acting for Ng in an action in the Federal Court. In a proceeding in the Supreme Court of NSW Ng alleged he had paid $100,000 to the solicitors agent for fees, the solicitor did not account for this. The respondent took advice from another solicitor and gave these documents to the Law Society of NSW but claimed that privilege. Ng sought disclosure of those documents. HC held there was a limited waiver when statements given to Law Society. Denying Ng access to the documents would be unfair. Where there are two or more distinct proceedings involving the same or closely connected disputes conduct in one proceeding, whether the proceeding is anticipated or already commenced, can found an imputed waiver for all proceedings

Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd: Qld Court of appeal held that legal professional privilege does not apply to a document obtained by or created by an expert in the course of preparing an expert report for a party to a proceeding

Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board:

Mazelow Pty Ltd v Herberton Shire Council

Brookfield v Yevad Products Pty Ltd

Lebon v Lake Placid Resort Pty Ltd: Discovery from a non-party is limited to an identified specific document or a specified class of documents in the possession or control of the non-party which could be the subject of a subpoena. The non-party discovery procedure does not authorise general discovery against the third party or permit a third party fishing expedition. The party who issues the notice has the initial onus of proving that the document sought is liable to be disclosed.

Settlement

Morgan v Johnson: 1) The rules about offers to settle encourage the proper compromise of litigation, in private interests of the individual litigants and the public interest of the prompt and economical disposal of litigation 2) The offeree is obliged to give serious thought to the risk involved in not accepting an offer 3) The prima facie consequence of non-acceptance is that the rule will be enforced against the non-accepting party; this is because, from the time of non-acceptance of the offer, the cause of the litigation is the attitude of the party rejecting the offer 4)Lying behind the cost rule where there is an offer of compromise is the common knowledge that ‘litigation is inescapably chancy the ordinary provision is expected to apply in the ordinary case

Hillier v Sheather: News South Wales Court of Appeal described the policy objectives of the offer to compromise rules. Kirby P noted that the offer of compromise procedure shifts the burden of costs to instil a heightened sense of realism into negotiations between parties. The procedure is intended to promote early offers of settlement. By shifting the burden of costs an additional risk is added to the litigation process. Parties must be made to understand that litigation is inherently risky

Castro v Hillery: Offer was made about claim, offer was rejected claim was then amended which more than doubled the claim. Plaintiff then got an order for more than the offer. Indemnity costs were not awarded. The basic principle is that the recipient of the offer must have an informed opportunity to assess the chances of either side doing better than the offer. Further that issue must be decided on material disclosed in the proceedings it is the claim as made in proceedings which is under consideration

Hobartville Stud Pty Ltd v Union Insurance Co ltd: Where a plaintiff claims a liquidated sum the offer has to be something more than a means of triggering the advantage on costs. Compromise envisages giving something away

Tickell v Trifleska Pty Ltd: Each offer of compromise is subject to examination to see whether it is a proper amount to settle or merely intended to activate the special rules about costs

Calderbank v Calderbank: Informal offers of settlement can still be considered by the Court. In a matrimonial property proceeding wife offered to convey certain property to the husband. There was also an affidavit with an offer to settle more property than court awarded. Court would look at the affidavit when ordering costs but not the letter

Cutts v Head: The plaintiff was granted injunctions and declaration that he was entitled to gain access to his fishery over defendant’s land. The plaintiff sent a letter to the defendant offering the settle the action, letter was without prejudice, however, if rejected it stated it would be brought to the courts attention. Court held that a without prejudice offer made with a reservation that it would be produced on costs is admissible for that purpose.

Smith v Smith: Cited as accepting that Calderbank offers are widely used in Australia

Naomi Marble and Granite v FAI General Insurance Co Ltd: Cited as accepting that Calderbank offers are widely used in Australia

Green v Rozen: A compromise that takes effect without intervention of the court must be valid as a contract to be enforceable

Default Judgment

Tesize v National Australia Bank: Grounds for setting aside consent judgment are the same as for setting aside the agreement on which it is based

Deputy Commissioner of Taxation v Chamberlain:

Harvey v Phillips: If a consent judgment is validly based on an underlying contract the court will not set aside the judgment unless the contract is vulnerable

Kovalev v Minister of Immigration and Multicultural Affairs

Roberts v Gippsland Agricultural & Earth Moving Contracting Co: Differed from Green v Rozen held that in a simple case a compromise is enforceable on a motion for judgment in the proceeding compromised conditions for enforcement in this manner are 1)The proceeding itself must still be on foot 2) Any stay of proceeding must be lifted 3) The claim must be for payment of money on common count such as debt or work and labour 4) The compromise must also be on terms that the defendant pay the plaintiff an agreed amount on an agreed date 5) The defendant must have agreed to submit judgment in default of payment

Kok Hoong v Leong Cheong Kweng Mines Ltd: Default judgment is essentially a final judgment, however, it can be difficult to determine exactly which issues are determined. Determinative of liquidated damages claim more difficult with equitable claims

Spain v Union Steamship Co of New Zealand: Liquidated claim can be ascertained by calculation of fixed by any scale of charges, or other positive data it is liquidated

Hungerfords v Walker: Common law right to claim interest but it will not be part of default of judgment

Cusak v De Angelis: Court can do whatever is necessary to achieve justice between parties and to avoid unnecessary delay and express, Court can amend an irregularity under rule 290. Defendant gave guarantee which the plaintiff attempted to rely upon which the defendant refused. The plaintiff then obtained default judgment but claimed interest at 40%. When plaintiff went to enforce judgment defendant contended that judgment should be set aside because he had a defence, secondly it should be set aside because it was irregular contract allowed for 30% interest and 40% was claimed. Judgment was not set aside interest was corrected

Metropolitan Bank v Pooley: Court has power to strike out groundless proceedings that would amount to an abuse of process

Deputy Commissioner of Taxation v Salcedo: Approved explanation of test given by Lord Woolf MR in Swain v Hillman ‘the word ‘real’ distinguished fanciful prospects of success or they direct the court to the need to see whether there is a realistic as opposed to fanciful prospect of success’

Three Rivers District Council v Bank of England (no 3): The criterion the judge has to apply is not one of probability it is the absence of reality

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq): ‘The level of satisfaction may not require the meeting of as high a test as that posited by Barwick CJ in general street. The more appropriate inquiry is in terms of the rule itself; that is whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt the case that great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case’

Bernstrom v National Australia Bank: Rule 292 and 293 should be applied be reference to their clear and unambiguous language, without a need for paraphrase or comparison with a previous rule. But in the application of the plain words of 292 and 293 and in particular the consideration of whether there is a need for trial, a court must keep in mind what the interests of justice usually require these issues to be investigated at trial

Presbyterian Church of Qld v Hodson: ‘The ordinary course of trial is for evidence to be given viva voce. To give evidence in chief on affidavit is a luxury ordinarily reserved for commercial cases where the perception seems to be that costs does not matter. The reality is that giving evidence in chief by affidavit usually causes increased cost in overall terms

DJL v Central Authority: Court has inherent (equitable) jurisdiction to rectify judgment where it does not reflect the court’s intention

Harris v Commissioner of Taxation:

Latoudis v Case: High Court affirmed that it is just and reasonable that a party who causes another to incur legal costs should reimburse the other party for those costs

Cachia v Haines: The rules and scales of costs demonstrate that costs within the meaning of the rules means professional costs of a solicitor. The items of remuneration in the scales of costs clearly relate to work of a solicitor in conducting litigation

Oshlack v Richmond River Council: The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party

Verna Trading Pty ltd v New Indian Assurance Co: Verna had marine insurance party. Policy said goods were covered from the time the left the seller’s warehouse until they got to Verna’s warehouse or a place they said they should go. Goods were transported but Verna did not take delivery for over 1 month when they did take possession goods had been stolen Attempted to make claim with New India, New India did not respond to the claim. Verna then attempted to sue. New India then argued that there was no insurance, that Verna had suffered no loss, and that the products were not covered. On the first day of trial got leave to amend proceedings. On the second last day of the trial attempted to argue that the period of holding was outside of the policy. Court accepted New India’s argument Verna could not prove goods were not stolen in transit Court ruled in favour of New India.

New India argued that they should get costs, Court held that costs should not follow the event, it was New India’s conduct that caused Verna to sue, New India had to pay costs up to the first day of trial when pleadings were amended

Gould v Veggelas: Mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant/ A bullock order should only be made if it is considered just that the costs of the successful defendant should be borne by the unsuccessful defendant and if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the defendant who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution

Hennessey Glass and Aluminium v Westpac Australia: ‘Costs are necessary if the litigation could not have been carried on reasonably without them. Costs are ‘proper’ if it was reasonable for a client with a competent solicitor to have incurred those costs in carrying on the litigation’