CIVIL PROCEDURE SEMINAR ONE LAURA MARIE CLARE SEMESTER 2, 2011 17 OCTOBER 2011.

CIVIL PROCEDURE SEMINAR ONELAURA MARIE CLARE

SEMESTER 2, 2011

17 OCTOBER 2011

BRIEF OVERVIEW

I covered most of the course up until pleadings in the first few tutorials so I will only go through those briefly now

RELEVANT LEGISLATION

Supreme Court (General Civil Procedure) Rules 2005 (Vic)

Supreme Court Act 1986 (Vic) Federal Court Act 1976 (Cth) Jurisdiction of Courts (Cross-Vesting) Act

1987 (Vic) Constitution Service and Execution of Process Act 1992

(Vic) Limitation of Actions Act 1958 (Vic)

JURISDICTION

Jurisdiction Subject matter/territorial Accrued jurisdiction (use this for the Fed Crt) Cross-vesting jurisdiction (invalid as far as it

attempts to confer state jurisdiction on the Fed Crt, Re Wakim)

Transfer of proceedings (within Aust) Is another court “more appropriate”

Forum non conveniens (international v Aust) Clearly inappropriate forum

TRANSFER V FORUM NON CONVENIENS

TRANSFERRING PROCEEDINGS

International

From Melbourne to Another Country

Forum Non Coveniens, consider the Supreme Court (General Civil

Procedure) Rules 2005 (Vic) and Voth & Spiliada

From England to Melbourne

Forum Non Conveniens - Spiliada factors - do not talk about Australian law

Within Australia

See, s 5 of the Jurisdiction of Courts (Cross-Vesting)

Act

go through the relevant legislation --remember

the factors here are almos the same as

Spilada but were adopted by BHP - reference BHP

with all of these GO TO THE COURT THAT THE

PROCEEDING HAS ALREADY BEEN LODGED IN - NOT THE COURT YOU

WANT IT MOVED TO

INSTITUTING PROCEEDINGS

Letter of demand: plaintiff 2 letters – Demand & “without prejudice” offer

Standing: Plaintiff Capacity: both parties

Relevant if you have a corporation/company/child/person suffering mental incapacity. Must outline why you are able to sue (this should have been your first two paragraphs in the statement of claim)

Originating process Writ v Originating Motion

Writ is more common, this is Form 5A and must be accompanied by a special or general indorsement. A special indorsement is the full statement of claim – this is more common

See order 5 for more details Note: a failure to comply with this is an irregularity – therefore – if you have

a question where there is a problem with the writ, this is not grounds to have the entire action struck out

CAUSES OF ACTION AND LIMITATIONS OF ACTIONS

McHugh J in Brisbane South Regional Health Authority v Taylor outlined the policy behind limitations of actions

Contract – 6 years from time of breach even if unaware (s 5(1)(a))

LIMITATIONS OF ACTIONS

Torts General – 6 years (s 5(1)(a)) Personal injury

Defined in s 3 (broad) Any disease and any impairment of a person’s physical or mental condition

S 27D – 3 years from date on which the cause of action is discoverable by P or 12 years from the date the act/omission alleged to have resulted in the death or personal injury – whichever elapses first

S27F – defines discoverable – P ought to have known all of the facts that the

Death/personal injury has occurred, death/personal injury was caused by D and that the personal injury was sufficiently serious to justify bringing the action


BUT – s 27D does not apply to dust related/tobacco/certain state comp schemes in s 27B. Need to use s 5(1A) if this is the case

s 5(1A) 3 years from the day on which the person first

knows that S 5(1A)(1)(a) they have suffered personal injury AND S 5(1A)(1)(b) those personal injuries were caused by

the act/omission of someoneThis section is interpreted broadly, Stingel v Clark – also

been extended to cover all intentional torts


Can extend the limitation period by considering the factors in s 27L or 23A.

If you used s 27D – use s 27L (and s 23M)

If you used s 5(1A) – use s 23A

THESE TESTS ARE EXACTLY THE SAME

JOINDER/ADDING/AMENDMENT

Amendment = order 36 Joinder = order 9 Adding = order 9 Consolidation = order 9

JOINDER = BEFORE PROCEEDINGS COMMENCED

ADDING = AFTER PROCEEDINGS COMMENCED

PERMISSIVE JOINDER

9.02. Permissive joinder of parties Two or more persons may be joined as plaintiffs or defendants in any proceeding- (a) where- (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions;

DISCRETIONARY JOINDER

9.02 (b) where the Court, before or after the joinder, gives leave to do so.

Usually used when you have satisfied one limb under 9.02(a)

COMPULSORY JOINDER

9.03. Joinder of necessary parties (1) Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff- (a) all persons so entitled shall be parties to the proceeding; and (b) any person who does not consent to being joined as a plaintiff shall be made a defendant. (2) Where the plaintiff claims relief against a defendant who is liable jointly with some other person and also liable severally, that other person need not be made a defendant to the proceeding. (3) Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants. (4) The Court may make an order under paragraph (1) before or after the non-joinder.

JOINDER INCONVENIENT

9.04. Joinder inconvenient Notwithstanding Rules 9.01 and 9.02, where any joinder of claims or of parties may embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient, the Court may order that- (a) there be separate trials; (b) any claim be excluded; (c) any party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which that party has no interest; (d) any person made a party cease to be a party on condition that that party be bound by the determination of the questions in the proceeding or without any such condition.

ADDING

Adding uses exactly the same tests as joinder

9.06 (a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

9.06 (b) any of the following persons be added as a party, namely- (i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or Consider this rule & then consider 9.03

ADDING

• 9.06(b)(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; Consider what this means for the other parties Consider 9.02 Consider 9.04

JOINDER OF CLAIMS

Plaintiff can join any number of claims Defendant can join by counterclaim or TP

notice – see O 10.

REPRESENTATIVE PROCEEDINGS/CLASS ACTIONS

If Fed, start by considering jurisdiction Opt out proceeding – consider the implications and

preliminary rules in s 33, namely s 33X(1) Can we commence proceedings?

S 33C(1)(a)-(c) A representative proceeding may be commenced:

S 33C(2) The action must be commenced via writ

S 33H(1)(a)-(c) Defining the class

Need to be able to identify who is in and out of the group

REPRESENTATIVE PROCEEDINGS/CLASS ACTIONS

Must discontinue if it drops below 7, costs are excessive, interests of justice require it, but cannot settle without court approval

Costs – can be ordered against the representative party or respondent but not against a group member

SERVICE

Personal service – r 6.01 Ordinary service – r 6.07 Substituted service – r 6.10 Special parties (see notes) Affidavit of service – r 6.17 (very

important document!)

SERVICE

Outside Australia Must meet the nexus requirements, s 7.01 Can be served according to the rules of the

country it will be served in Outside Victoria

S 5 SEPA

APPEARANCE

This is how the defendant lets the court (and plaintiff) know that they are aware of the proceedings

Can be done in two ways Unconditional (Form 8A) Conditional (Form 8B)

DISCOVERY

Very important If you’re going to write about McCabe!

Notice for discovery, is it a document? Affidavit of documents – Form 29B

Schedule 1 = documents in possession that you have Part 1 – willing to show Part 2 – privileged (will not be shown)

Schedule 2 = documents not in possession

DISCOVERY

When is something relevant to the proceeding? Compagnie Financiere et Commerciale de Pacifique v Peruvian Guano

Co – if it advances/damages/leads to a train of inquiry that might advance or damage the case

When is something in possession/power/custody? Possession = r 29.01(2) means the right to have it meaning the

physical holding resulting from the right to possession custody means they have the right to ownership and power means an

enforceable right to obtain possession or control of the document

Types of discovery Restricted discovery Confidential documents can only be seen by solicitors Particular discovery Further discovery Supplementary discovery

DISCOVERY

Note the Crimes (Document Destruction) Act 2006 (Vic), s 254(1) and Evidence Document Unavailability Act 2006 (Vic)

Can also have discovery to identify a defendant, from a prospective defendant and from a non-party

INTERROGATORIES

Serving interrogatories Answering interrogatories (r 30.05)

State whether answering from knowledge/belief Must make reasonable inquiries Reasonable grounds for believing whether something is true If no knowledge, must answer from belief

Objections to answer (r 30.07) Doesn’t relate to a Q between the parties Unclear/vague/too wide Oppressive/abuse of process (can strike them out) Requires them to express an opinion they are not qualified to

give Privilege

Default

NOTICES TO ADMIT

R 35.03 Notice for admission of facts Notice for admission of documents Cost consequences

SUBPOENA

Must be served personally Could be used to summon documents or

to summon someone to come to court as a witness

All the relevant rules are in r 42.02

INTERLOCUTORY PROCEDURES & SERVICE

Notices to admit/interrogatories etc can be served using ordinary service because the D already knows they are being sued

Process for starting interlocutory proceedings is Order 46.

AFFIDAVIT

See O 43. Must be in first person and confined to

knowledge that they have Must be filed and served Different from pleadings because you

can’t anticipate defences, name counsel and don’t need to address all issues in contention

INJUNCTIONS

Order 38 Mandatory/prohibitory/interim/ex parte

(same meanings as you learn in equity) Must establish that there is a serious

question to be tried (prima facie case) AND that the balance of convenience favours granting an interlocutory injunction

P must give the usual undertaking as to damages

ANTON PILLER ORDERS

A.k.a search orders Ex parte Can only take specific things and you

cannot keep it – e.g., it allows you only to photocopy documents

See r 37B.02(1) = when the court can order a search order

Must file an affidavit in support of the order

FREEZING ORDER

R 37A.02 To stop the D disposing of assets or

making themselves “judgment proof” Must file an affidavit in support of a

freezing order as per r 37A.02(5). Must include type of asset and why you

think you need this order

SECURITY FOR COSTS

O 62 D can apply to have P give security for

costs where there is a risk that D might not be able to recover their costs if they are successful

Can be ordered in numerous circumstances (see notes)

At r 62.04 – if P fails to give security when they are ordered to, the trial will be dismissed

DIPOSITION WITHOUT TRIAL

Court has the power to do this! (See McCabe) Setting aside an order for default judgment –

Discuss how the defence would have been struck out (r 24.02(b)), need a summons to have the matter heard and an affidavit to provide the evidence needed for the order. Court then has wide discretion to grant this and they would need to consider the entirety of the problem (e.g., including prejudice/delay)

Summary disposition Default judgment, default on defence, default on counterclaim

Summary judgment Summons supported by affidavit, defendant to show cause, D

doesn’t file an appearance, D has no defence, judgment on counterclaim (e.g., P has no defence to whole or part of the claim)

ABUSE OF PROCESS/VEXATIOUS S 21 SCA – vexatious litigations Abuse of process

DISMISSAL FOR WANT OF PROSECUTION

If P doesn’t set a date for trial – there will be dismissal for want of prosecution r 24.06(a)

SETTLEMENT

Formal settlement (order 26 and without prejudice) Procedure for offers of compromise Serving an offer Cost consequences

Accept an offer r 26.03(7) (P entitled to costs on a party/party basis up to the date of service)

P’s offer of compromise is rejected r 26.08(2) If they don’t get a better offer

Death/bodily injury – indemnity basis (r 26.08(2)(a)) P gets costs up to including the day of the offer on party party and then

indemnity basis after that (b)

D’s offer of compromise is rejected r 26.08(3)(a) If P doesn’t get a better offer but is successful, D pays parties costs

on party party basis up until the day it was served and then P pays D’s costs after that on a party party basis

ABANDONMENT/TRIAL

See page 32-33 of my sketch notes

COSTS

Bases of taxation Party/party costs r 63.29

In order to go beyond this default position, must have some evidence of malicious or unreasonable behaviour (Gunns, Bongiorno J)

Solicitor/client costs r 63.30 All costs reasonable incurred – can be awarded against a successful D on the

grounds they prolonged the trial or could have revealed to P a meritorious ground for refusing their earlier claim (Verna)

Indemnity costs r 63.30.1 All costs

Notes Power and discretion of the court as to costs under s 24 SCR Can make costs orders for particular parts of the trial (e.g., denying

something in a notice to admit that was proven true) r 63.04 Cost indemnity rule – absolute and unfettered discretion Byrns v

Davey Generally that an unsuccessful person recovers from a successful one

COSTS

Exceptions to the cost indemnity rule Party wins in the wrong court Party ultimately wins but loses on some issues Public interest litigation Costs in mega-litigation Multiple party order P succeeds on claim, D succeeds on counterclaim Where claim succeeds against one D and fails against

another Sanderson order, bullock order

See also; Verna P is expected to behave better because they have chosen to

sue – D is always the unwilling party

COSTS

Taxing – if parties cannot agree – goes to taxing master r 63.38

Costs against lawyers – r 63.23 Costs for interlocutory proceedings

Check if the question says costs are being reserved otherwise you should mention costs when you are discussing a particular interlocutory proceeding

CIVIL PROCEDURE SEMINAR TWOLaura Marie Clare

Civil Procedure 2011 Semester 2

20 October 2011

Why Study Civil?

Well…what’s the use of knowing the law if you don’t know how to bring it to court

Things to Keep in Mind

What is the main aim of civil procedure?

Efficiency – e.g. summary/default judgment – remember “dismissal for want of prosecution”


Who are we advising? – don’t get caught up – most past exams ask you to advise the PLAINTIFF but….

Semester 1, 2010 – this exam looked at the defendant’s point of view


What are we up to?

The facts are always in chronological order! Gives you a hint of what the examiner might be looking for (but not always….)

ALWAYS read the first line carefully – maybe make a timeline

They will tell you if you are to assume something or not (e.g. assume your answer to the question above was that H cannot transfer proceedings)

What Topics Are Covered?

Jurisdiction Transferring proceedings Instituting proceedings Capacity Originating processes Limitations of actions Multiple parties & causes

of action Representative

proceedings (class actions) Service Appearance

Pleadings Discovery Interrogatories Notices to admit Subpoenas Interlocutory procedures Disposition without trial Settlement Trial Costs (enforcement)

CAREFUL!

My notes DO NOT cover

the new Civil Procedure Act 2010 (Vic) OR

Enforcement/Appeals

Now - Some Revision

I have put together a list of past exam question and some original questions. I have not reproduced any ENTIRE exam in these slides

Revision Question #1 Semester 1, 2010

Can we move the proceeding to Victoria?

Revision Question #2, Semester 2, 2007

What is a stale writ? What is the difference between Form 8A

and 8B? What are party/party costs and how do

they differ from indemnity costs? In light of Re Wakim – is the Federal

Court able to hear matters that ordinarily fall within the State SC jurisdiction?

Revision Question #3, 2000

Revision Question #3, cont

Revision Question #5, original X wants to sue Y for negligence. They

get their lawyers to prepare a Form 5A and SOC. They get a process server to go to Y’s house but he isn’t home. Instead, his friend Sally is home. They give the form 5A and SOC to Sally and explain that this is valid service of Y.

Is this effective personal service?

Revision Question #5(a)

Would the answer be different if instead Y was home but refused to unlock the door and let the process server actually hand him the documents – is it enough for the process server to

(a) slip it under the door? (b) put it in the letter box?

Revision Question #5(b)

What else does the process server need to do?

Revision Question #7

If costs are NOT reserved until the end – when should you raise the issue of costs for interlocutory procedures?


The D realises that they might not win against P and decide to quickly try and settle the matter. They go to P and offer him $100,000 in accordance with Order 26. The P ignores the letter and does not accept within 14 days.

The matter goes to trial and P gets $90,000 in damages and costs.

Revision Question #8 cont

What is the significance of “in accordance with Order 26?”

When can the contents of the settlement be disclosed in court?

What cost orders might D ask for? What if it was P who asks the D for

$100,000 – what costs orders might P ask for?


P believes D has some really important DVD’s that are relevant in evidence. If D shows these tapes, P is 100% sure the judge will find in his favour because they are VERY damaging to D’s case. P also believes that D might try and find ANY excuse he can not to disclose the fact that these DVD’s exist and might even try and throw them out or give them to his friend C to hold onto until the trial is over.


If D gives them to C – what could P try and do?

Because P is worried D might throw them out – what order might P try and get?

If D disposed of the evidence – what sort of offence could he be guilty of? What would P need to prove? Is he likely to succeed?


P believes D pushed him down the stairs at work (Edward’s Funeral Parlour) because he was worried P would finish all the lovely black tea in the work tea room if D didn’t get there first. P severely hurt his head and now suffers from neglect syndrome.

Assume you are D - answer the following Interrogatory written by P


1. Why didn’t you give me back my DVD of Being Human Season I?

2. How long have you worked at Edward’s Funeral Parlour?

3. How did you come to work at Edward’s Funeral Parlour?

4. Who do Edward’s Funeral Parlour receive their tea supplies from?

5. How do the other staff at Edward’s Funeral Parlour treat you?

Any questions?

CIVIL PROCEDURE SEMINAR ONE LAURA MARIE CLARE SEMESTER 2, 2011 17 OCTOBER 2011.

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