1 05-06-23Civil Procedure

Class 1Introduction to Civil Procedure a) Difference between substantive and procedural law p1 - all major courts have their own set of rules stipulating the procedure to be followed in commencing, maintaining, proving and enforcing civil claims made before them. - the current rules were originally made by the legislature, but have been substantially altered by rule committees dominated by judges. - most court rules nowadays amount to subordinate or delegated legislation, which is subject to parliamentary scrutiny and disallowance. - the rules of each major court run into hundreds of pages. They range from statements of general principle to regulations of minute detail, eg. prescribing the size of paper to be used for court files. b) NSW rules p3 - The rules if NSW are known as the Supreme Court Rules, which are abbreviated as SCR. Each state’s SCR are divided into ‘Parts’, which resemble the parts of an Act. Within the parts are rules, sub-rules and paragraphs eg. SCR Pt 10 r 1A(1)(c)(iii) - In some state jurisdictions, ‘Orders’ is substituted for ‘Parts’. - We will look at the NSW Uniform Civil Procedure Rules which will become law in June 2005. These Uniform Rules consolidate the District, Supreme and Local Court Rules. - The NSW Civil Procedure Bill will also be enforced in June 2005. c) Definitions p4 • Prothonotary- a court’s chief registrar, who looks after the court registers and filing systems. In some jurisdictions, they can also assess damages. • Registrar- court’s which are split into different divisions will have a registrar for each. • Master- a judicial officer, vested with some of the court’s powers. • Issue- a document is ‘issued’ by the court when it proceeds from that court. A prepared document is given to the court clerk, who fills in any necessary detail (official number, date) and stamps it with a rubber stamp (the court seal) thus authenticating it. One copy is kept in the court file, and other copies are made for the parties. Court orders and judgments are also typed up by the party, and are checked by the judge’s associate (to see if they correspond to the judge’s notes), and signed by the judge. • Writ- a document issued out of the court registry and demanding that the addressee either do something or suffer certain consequences in default. Some writs include: orginating writs (writs designed to start an action), subpoenas (writs compelling a person to attend court), and writs of execution or to enforce a judgment. In NSW, writs have been replaced by more straightforward documents. • Originating Process- any document which actually commences and describes the plaintiff’s case. • Statement of Claim- this document is the plaintiff’s pleading, setting out the nature of the plaintiff’s case and the relief claimed. In NSW, it is itself an originating process, though in other jurisdictions, it follows the originating writ. • Summons- like a writ, this document summons the addressee to attend or suffer certain consequences. • Motion- To ‘make a motion to’ or ‘move to’ means applying for an order. So when a jury returns a verdict in your client’s favour, you will ‘move’ for an entry of judgment in accordance with the verdict, and you will also ‘move’ for costs. Sometimes one must give an advance ‘notice of motion’, which is written notice that you intend to move for a particular order. • Ex parte- An ex parte application is made in the absence of the opposing party. When the other party is present, the application is said to be inter partes. • • • • Interlocutary- procedural matters or applications occurring before the trial are interlocutory eg. applications for discovery or particulars of an opponent’s pleadings. Discovery- the term used to describe the pre-trial process whereby one side looks at the other side’s documents or administers interrogatories. Judgment- the court’s final decision on the plaintiff’s claim for relief. Order- a court command other than a final judgment. A defendant who successfully moves to set aside a plaintiff’s statement of claim obtains an order setting it aside. d) The efficiency goal. p6 Purposes of the rules of evidence and procedure: - effective enforcement of orders and judgments - speedy and final disposition of disputes and charges - accuracy of fact-finding - the best choice of court in terms of jurisdiction, cost. speed, effectiveness and ability - cost effective procedures for the vindication of rights and the enforcement of obligations - the provision to affected persons of due notice of a claim/charge and the chance to respond - the protection of basic rights/values eg. client privilege, right to remain silent, even at expense of accurate fact-finding - protection of status quo eg. BOP on plaintiffs (civil)/ prosecutors (criminal), civil rule that loser pays both side’s costs - efficient use of judge time at trial by procedures designed to reduce element of surprise at trial and to streamline the articulation and presentation to the court of only those issues genuinely in contest - the provision of assistance to litigants in the gathering of evidence eg. devices such as discovery (pre-trial) and subpoenas (trial). - the provision of effective disincentives to frivolous claims. e) Defects in the system p6 1) Overly dependent on party-prosecution- excessive delay, inadequate/late investigation of facts, late/unfair settlements, restriction of the trial to an agenda determined by the parties, lack of real discipline over the parties by the courts. Objections- a more involved court might appear biased and diminish its moral authority 2) System is insufficiently open- all cases involve too much duplication of work. That is, each side worked in ignorance of the fact-gathering process of the other side, so when it came to present evidence, both sides had done the same work. The International Commission of Jurists recommended an increase in discovery procedures (to reveal to the other side what information was gathered), but discovery procedures are expensive anyway. 3) Over-dependence on all-embracing trial- There is a very sharp distinction between pre-trial and trial, in contrast to the inquisitrorial system, where emphasis on judicial responsibilities means there is little distinction. Rather, cases ‘evolve’ as facts are gathered. 4) Too formalistic- Procedural rules often manipulated by rich parties to persuade other party to settle. Excessive use of discovery encourages this. f) Delay and Efficiency in Civil Litigation p7 Proposals for refom include: 1) Greater resources, in order to reduce court delay. 2) Reform of procedures. Enforce greater uniformity between procedural rules of different courts. At the same time, court procedures should be tailored for different types of proceedings. eg. special procedures for personal injury cases. Pleading, discovery and interlocutory procedures have been propular targets for reformers. 3) Court control- effective case management, with sanctions for non-compliance. Some examples include pretrial hearings and settlement conferences on a wider basis. 4) Institutional Change- Different reformers advocate different types of change. Some propose moving more matters from the superior to the lower courts, or to court officers, or to other mechanisms for dispute resolution eg. arbitration. Others want written argument, rather than oral, which takes up a lot of time. Some want to move away from an adversarial system to an inquisitorial system, saying it leads to the clarification and revelation of the truth. A step in this direction would involve court officials conducting inspections and interviewing witnesses. 5) Changes in the substantive law- Suggestions for a national accident compensation scheme. Examples include dealing with particular types of cases eg.personal injury, by an administrative rather than judicial body. 6) Lawyers and judges- greater education, training and discipline are mentioned as ways for overcoming delay, which is caused by oversights \, overwork, lack of skills or incompetence. Some of these reforms have already been implemented to some extent. However, the impact on delay has not been great. No one particular change has been indentified as being the key factor in reducing delay. Also, there are associated costs when trying to reduce delay eg. more judges or court officials. More extensive discovery procedures or mandatory pre-trial conferences will also result in more cost. Reduced delay may also mean that justice is compromised. The most significant side effect of reducing delay may be that additional cases are attracted to the system, making the changes self-defeating. However, if wider access to the courts is a priority, this could be a good change. Finally, with some changes to reduce delay, litigants might be penalised for the behaviour of their lawyers. g) Access to Justice: Interim Report- Lord Woolf. p8 Primary Problems identified: 1) Excesses or, and lack of control over, the system of civil litigation 2) inadequate attention given to the control of costs and delay and need to ensure equality between the parties 3) the complexity of the present system 4) the absence of any satisfactory judicial responsibility for the effective use of resources within the civil system. Woolf believes there is no alternative to a ‘fundamental shift in the responisibility for the management of civil litigation from the litigants to the courts. This change would mean that litigants must accept that once they commence proceedings, they no longer have sole and unfettered control over the way in which the case will proceed. This will mean a radical change in culture for all concerned, and will place a greater responsibility on judges. However, much of the responsibility for making progress will remain on the parties themselves. We need to acknowledge that our system is not perfect and that there is a percentage of error. Right not, judges and the legal system seem to think that considerations of time and money should not be brought to bear on questions of justice. However, this is idealistic. ‘If by slightly increasing the percentage of error, we can substantially reduce the percentage of cost, it is only the idealist who will revolt’. Both the profession and the judiciary must take into account more than they do at present, questions of cost and time and the means of the parties. The new approach: 1) ‘the parties to a dispute should be able to obtain information and advice to enable them to resolve that dispute in an economic, expeditious and practical manner, or if not possible, to conduct satisfactorily the appropriate litigation. 2) Parties should try ‘whenever it is reasonable’ to settle before resorting to the courts, and if it not possible to settle before proceedings, to settle at the earliest stage of proceedings possible. 3) If there is an appropriate alternative dispute resolution mechanism which is capable of resolving the dispute more quickly and more cheaply than court proceedings, than parties should be encouraged to use it before they use the courts. 4) Prior to using the courts, and throughout the course of proceedings, the parties should be kept fully informed of the likely costs and consequences of the proceedings, and any alternative means of resolving the proceedings. 5) Proceedings should be conducted and disposed of in a manner, at a cost, and within a timescale which is appropriate to the nature of the issues involved and means of the parties. 6)When practical, proceedings should be disposed to summarily. 7) When practical and possible, evidence and facts should be agreed and the issues identified between the parties prior to the hearing. 8) Legal proceedings and trials should be subject to a pre-determined timetable, which should be known by the parties, and which should only be departed from for good reason. The length of the trial should also be predetermined and exceeded only for good reason. 9) When deciding whether or not to depart from the timetable, the courts should consider the effect of doing so upon the parties involved, and on other proceedings awaiting a hearing and the resources of the courts. 10) Only such discovery should take place, and only such evidence shoulf be before the courts, as is necessary for the just and appropriate disposal of the proceedings. 11) The court’s procedural rules should be simple, clear and non-technical. 12) The court should be given the resources and judicial and administrative structure necessary to fulfil these aims. h) Excessive Delays p10 Almost all major trial courts in Australia have embraced the option of increased court control as a way to tackle excessive delays. Another mechanism which has been developed is the self-executing order. This is an order dismissing a claim or defence if a party fails to do something specific (eg answer the discovery notice) by a certain date. The self-executing order is nowadays only used when a party is in consistent breach of the rules and the court’s patience has run out. i) Case Management Schemes p10 Under case management schemes, the courts aim to set realistic timetables for practitioners and themselves. Common features: 1) Aims above all to get a case prepared at a much earlier stage than it might have been in the old days, when courts did not try to push cases through along more or less pre-ordained timetables. The hope is that early preparation will result in early settlement, rather than the hugely wasteful settlement on the day of trial. Some case management proponents also hope for more settlements overall. These schemes abound with procedures for requiring the parties to explore settlement possibilities, by themselves, or with ADR. Anti-case management people feel that earlier preparation simply increases the cost of those cases which eventually are tried at court. Management proponents reply that statiscally, most cases settle, and so it is better to encourage settlement processes as much as possible. And for those cases which don’t settle, proponents also say that clients are usually prepared to pay slightly more if their case can be tried much earlier. 2) Typically imposes a routine requirement on parties to exchange documents and information. This can extend to a requirement to give the opponents the outlines of a party’s evidence and the documents required to establish certain facts. This means that the background or general rules governing pleadings and discovery are somewhat superseded, because the quantity and quality of information supplied will be such that formal discovery rules/highly stylised open ended pleadings will be made redundant. 3) Typically set up different tracks for different types of cases- from tracks which provide for very little court supervision, to special tracks offering high-level supervision for complex or urgent cases. 4) Disciplinary elements- the schemes all contain sanctions for breach, although judges are sympathetic to parties who genuinely try to stay on track. A case which is not adhering to its timetable will be brought before a judge/registrar for special orders designed to get it back on track, with a view to keeping the trial date at roughly the original date. Persistent or inexcusable breaches can result in a case being dismissed, or moved to a list of dormant cases, which is periodically culled. Another sanction is the court’s reluctance to adjourn a case which has been set a specific trial date. This is an extreme sanction, as it risks one party not being sufficiently that it was a product of new legal minds applied to the case. A new plea would result in trial date being postponed for at least another year. whether or not the case has been assigned to a special list. that cost orders would rebalance competing claims to justice. j) NSW Civil Procedure Bill 2005 (hereafter ‘CPB’) . The court also has to responsibly use its scarce public resources. During the progress of the case. but always keeping in mind that justice is the end. 2) Extent of any breach of directions and 3) Recognise the stress of litigation on parties Considerations for granting an indulgence: -that this is the only way that the true issues and real merits can be litigated. the longer the party should have realised the point in issue. Gaudron and McHugh JJ: ‘Case management is not an end in itself.the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant this aim’. Justice does not necessarily mean that parties have multiple opportunities to plead and present their case. and must look at the impact which its orders have on litigants and the general public too.prepared by the trial date. the proximity of the hearing. the respondent sought leave to amend their defence (their pleading). k) Case Management Rules p15 Tasmania: Circular No 8 of 2000 See booklet for the example of case management guidelines. However. Draft Civil Procedure Bill 2005 See booklet .. but the High Court unanimously reversed the decision. the judge must always retain that flexibility which is the hallmark of justice. Considerations against: . • Kirby J: Must balance different considerations. repeated default on the part of a litigant. that the oversight was wholly accidental. the trial judge refused them leave on case management grounds. It is also difficult to appeal to higher courts a decision like this. Held: Full Court upheld the TJ’s decision. • Dawson.no explanation for a late application. that the proposed amentment is important to the rights of the party. Discussion: Both judgments stated the TJ could have ordered extra pre-trial procedures to be completed in time for the trial to commence as planned. that the oversight is adequately explained. which will prejudice its chances. that the fault is of the party’s legal representatives. quick and cheap resolution of the proceedings etc [Queensland v JL Holdings Pty Ltd] p12 • Facts: JL Holdings sued Queenslad when its plans to build a theme park in that city were stymied by a change of government. The new point (of changing plea) should have been noticed years ago. because the longer the time. extent to which a new issue would give rise to a whole new case. The respondents appealed.the just. that the hearing date is sufficiently in the future for the party to meet the amendment and take in the consequences of it. Look at 1) Explanation for late application. as trial courts have great latitude in ordering their own timetables..This Bill outlines its purpose and the purpose of the court rules: s56(1). especially where it would cause disarray at the last minute to its presentation at trial. because of all the possibilities of other factual matters being placed in dispute etc. the strain which litigation may take for those involved. that it arose out of sudden or unexpected events. that it was the product of unavoidable human error. the extent to which the applicant is at fault. However. the period of time the case has already progressed. In public interest cases. Question: Offer of compromise usually works like this: the plaintiff is suing D.if loser made offer of compromise/Calderbank letter. Court ordered costs traditionally only covered two-thirds of the winner’s actual legal expenses. cover all the winner’s legal costs.Cost orders are at the discretion of the courts. which is an itemised account of the costs to which the winner claims s/he is entitled. The orders for costs in such cases can be against the legal advisers or the party themselves. and the winning solicitor’s bill. Most jurisdictions still call court ordered costs ‘party and party costs’ (general basis on which costs are ordered pt42. Costs orders can be made against barristers too [Levick] p 22. the loser may not have to pay costs.pt42. meaning that the general rule is that the loser pays the winner his/her costs. The second stage is that the costs will be taxed at an informal hearing before a taxing officer. there must have been some special or unusual feature of the case eg. an order may be made to apportion the costs. in practice.normal costs where the loser pays the winner 2) Indemnity-if 1 party is ‘naughty’ eg delay.2) because they are assessed taxed on a very ungenerous scale known by that name. or the court might just refrain from making any cost orders. . and if the order for costs was on a party-party basis. To recover on one of the higher bases. .winner pays loser (in UCPR this basis is also referred to as an ‘indeminity basis’). The usual procedure to determine the quantum of costs is that the parties will agree between themselves on the amount of costs payable. the winners will have to justify the items and the amount.General Guidelines 1) Party/Party. Costs therefore do not. there is usually a significant difference between the amount of costs the loser has to pay the winner. . and are not intended to cover any of the litigant’s personal costs {eg lost time}either. Courts usually order costs on a party-party basis. The loser can challenge the amounts claimed. even for the winner. but in an unusual case they may order that costs be paid more generously.s93. Plaintiff refuses offer and takes it to trial. Another is the sheer expense of litigating. but not all the defendants. the winner will arrange for the costs to be taxed {assessed}.14. these costs tend to only amount to one-third of the legal expenditure. and on what basis. This means there is still a large proportion of irrecoverable cost. In class: 3 Bases of Costs. depending on circumstances. The first stage is that the winning party prepares a ‘bill of costs’. These days. Where a plaintiff has sued two or more defendants and succeeds against some. Recovery on a solicitor-client basis falls between party-party and indeminity bases.situation where plaintiff makes offer and D rejects it. has to pay D’s costs regardless of offer of compromise. If they are unable to agree.l) Costs Orders p18 . the successful defendants may be entitled to their costs of the action. n) Payment into Court and Offers of Compromise p24 pt42. See [Cook v Pasciminco p21]. but not how much that person will get. Therefore. who makes a reasonable offer of compromise of $200 000. However. The alternative bases are solicitor-client and indemnity. Costs on an indemnity basis means there will be almost a complete recovery of all costs expended. In cases where both parties have had a measure of success.The biggest incentive to settle is the risk of losing. m) Other types of Cost Orders p23 There are some exceptions to the general rule that the loser pays the winner’s costs. delay or abuse of process. At trial the plaintiff a) loses. An order for costs states who will get the costs.1 of the Uniform Civil Procedure Rules (hereafter ‘UCPR’) states that ‘costs follow the event’. s94 of CPB holds that legal practitioners are liable for unecessary costs. the innocent party may be paid on this basis 3) Maximum. misconduct on the part of the losing party like obstructionism. only to have a less favourable result at trial. After this date. it was such a reasonable offer as required the offeree to give careful consideration to it. Calderbank letters and [Maitland Hospital]. and then costs on an indemnity basis after that point. D will pay Plaintiff’s costs on party-party basis up till the time of offer. pt 42. can the plaintiff reasonably offer to compromise for $200 000? as in. Has to pay D’s costs regardless of offer of compromise. Plaintiff sues D. according to s42. the point of time at which it was made and that whether. p31. c) wins less than $200 000. ask D to pay x amount to cease litigation? Yes. and circumstances where A has turned down an offer by B.‘it is necessary to look at the genuiness of the offer.b) wins less than $200 000. Therefore.14 of UCPR. D must pay normal costs to plaintiff. D could have saved a lot of time if he/she had paid up earlier). So what about the reverse? eg. See class notes for details about Offers of Compromise. i think so. in all the circumstances. Class 1. D must pay normal costs to plaintiff. When considering Calderbank offers. D may pay the plaintiff his/her costs on a party-party basis up to the date of the offer of compromise. c) wins more than $200 000. what if plaintiff a) loses. So.15.situation where defendant makes offer and P rejects it. b) wins $200 000 or more? (In other words. the plaintiff may have to pay D’s costs on an indemnity basis.1 NSW Civil Procedure Bill 2005 s56 Overriding Purpose . If it was unreasonble for the offeree to reject the offer then there are strong grounds for the court ordering indemnity costs on the basis that the offeror made a fair and reasonable attempt to resolve the proceeding’. whether it was realistic. quick and cheap resolution of the real issues in the proceedings. after giving the legal practitioner a reasonable opportunity to be heard. the practices and procedures of the court should be implemented with the object or recolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. direct the legal practitioner to repay to the client costs that the client has been ordered to pay to any other person. and all other proceedings in the court. s93 Courts powers as to costs • s93(1).the court has full power to determine by whom. is to facilitate the just. (b) the efficient disposal of the business of the court. (c) the efficient use of available judicial and administrative resources.The overriding purpose of this Act and of rules of court. disallow the costs in proceedings. (A new provision stating that the costs to the parties should be proportional to the issues and complexity of the subject matter. s56(3). or the costs for any step in the proceedings etc. cause his or her client to be put in breach of the duty identified in subsection (3). in their application to civil proceedings.Subject to rules of court and to this or any other Act: (a). by order.A solicitor or barrister must not. (d) the timely disposal of the proceedings. and it appears to the court that a legal practitioner is responsible for the incurring of those costs. at a cost affordable by the respective parties s57(2).A party to civil proceedings is under a duty to assist the court to further the overriding purpose and. to participate in the processes of the court and to comply with directions and orders of the court. This is basicaly to prevent exorbitant legal fees for cases where possible damages won’t be great). (b) it may. as best to ensure the attainment of the objects referred to in subsection (1). proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings.This Act and any rules of court are to be so construed and applied. . and (b). s56(5).Costs are in the discretion of the court. and the practice and procedure of the courts are to be so regulated. to that effect.the court may order that costs are to be awarded on a party/party basis or on a an indeminity basis. to whom and to what extent costs are to be paid.If unecessary costs are incurred.The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.For the purpose of furthering the overriding purpose referred to in 56(1). s56(4). by his or her conduct. the court may.• • • • s56(1). do any one of more of the following: (a) it may. s94 Liability of legal practitioner for unecessary costs • s94(1). and (c). s57 Case Management • s57(1). • s58 Court to follow dictates of justice s59 Elimination of delay s60 Proportionality of Costs In any proceedings. by order. Without limiting subsection (1). or (c) to deliver any document that ought to have been delivered for the use of the court. but not accepted by the plaintiff. and (b) the defendant is entitled to an order against the plainiff for the defendant’s costs in respect of the claim. and (ii) if the order was made on or after the first day of the trial as from 11am on the day following the day on which the offer was made.15 (1). costs payable to a person under an order of the court or these rules are to be assessed on a party/party basis.This rule applies if the offer concerned is made by the defendant. a legal practitioner is responsible for the incurring of unecessary costs if proceedings cannot conveniently proceed. as from the beginning of the day following the day on which the offer was made.Subject to this part. or (b) to file any document that ought to have been filed. or can proceed only with the incurring of extra costs or with the inconvenience of the court or another party to the proceedings. than the terms of the offer.14 (1).Unless the court orders otherwise or these rules otherwise provide. if the court makes any order as to costs.2. assessed on an indemnity basis: (i) if the offer was made before the first day of the trial.Unless the court orders otherwise: (a) the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim.Unless the court orders otherwise. and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff . NSW Uniform Civil Procedure Rules 2005 Pt 42 Costs • pt42. • pt42.• (c) it may. or (d) to be prepared with any proper evidence or account. • pt42. direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party s94(2). as from the beginning of the day following the day on which the offer was made. or less favourable to the plaintff. Practice Note 120 . the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim: (a) assessed on a party/party basis up to the time from which those costs are to be assessed on an idemnity basis under paragraph (b). and (ii) if the order was made on or after the first day of the trial as from 11am on the day following the day on which the offer was made. but not accepted by the defendant. or direction of the court. order. • pt42. or (e) to comply with any rules of court or any judgment. and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer (2). the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. to be assessed on a party/party basis.This rule applies if the offer concerned is made by the plaintiff. (2). by order. up to the time from which the defendant becomes entitled to costs under paragraph (b). and (b) assessed on an idemnity basis: (i) if the offer was made before the first day of the trial. or (f) otherwise to proceed.1. because of the failure of the legal practitioner: (a) to attend in person or by a proper representative. It also gets parties to think about alternative dispute resolution (hereafter ‘ADR’) at an early stage.Practice Note 120 is an example of case management. and Litigation 1 exams usually focus on negligence/personal injury.Practice Note 120 applies to the common law division of the Supreme Court of NSW. 1) Introduction. better use of court resources and encouragement of early settlement. The idea is to ensure that parties prepare earlier. .A minority view Practice Note 120 as actually causing greater cost. with the court being involved pre-trial and setting strict timetables. p 33. This is not the majority view. . .. Alternative Dispute Resolution. because of increased use of court time and more issues to think about. Class 2.DCM is used to avoid ‘trial by ambush’. . by involving status conferences etc.Negligence and personal injury matters are dealt with under this division of the NSW Supreme Court. . or ‘Differential Case Managment’ (hereafter ‘DCM’). and neighbour (one in fifty). by which parties may resolve disputes. to prevent harm to others or to recieve an apology. The great majority of court cases are settled before trial. For inexperienced litigants. literature. consumer (one in twenty). The ways in which ppl deal with grievances can be best described diagrammatically as a pyramid.ADR is used to denote a variety of processes.litigation . 60% tried to resolve the prob with advice and help from outside advisors. 21% went to a citizens’ advice centre. trade unions and staff associations. One study shows that 51% of ppl wanted money or property. In many non-western cultures. and what westerners call ADR is generally the dominant method of dispute resolution in those cultures. 5% did nothing. Only 20% of non-trivial justiciable probs experienced by private individuals resulted in any kind of legal proceedings. most business ppl don’t resort to the law but simply re-negotiate. conciliation and arbitration. other than litigation. people have always used a variety of methods for managing their disputes.negotiation and seeking advice . ombudsmen etc . This is reflected in popular culture. this is inconsistent with reality. Others wanted separation or divorce to sort out related issues (8%).situations where ppl don’t know they have been legally wronged in the first place Even in commercial situations. with litigation being a regrettable last resort. Reasons for not seeking help included inaccessibility of good quality legal advice. where litigation is seen as the norm and other methods are viewed as alternatives to that norm.court ordered processes. taking back items . while some sought a change in behaviour (7%).Apex of pyramid. Apology and prevention of harm appeared most frequently as the objective for .deciding not to pursue matter at all . litigation is not viewed in the same way. without providing for any contingencies. with the remaining 96% being resolved out of court with the assistance of lawyers. legal advice is sought less often than might be imagined. Divorce and separation most commonly involved legal proceedings.industry/workplace grievance mechanisms. Despite the cultural resonance of litigation in the west however. A few wanted to send a warning. Other types of disputes involving legal proceedings included: employment (one in five). . One study of the Family Ct showed that only 4% of unresolved property disputes went to a contested hearing. However.putting up with dispute as long as the costs of resolving it remain higher . and disputes over benefits and schooling of children involved legal proceedings in two out of five cases. Detailed contractual planning only occurred when the subject matter of the contract involved a major expense. 35% tried to resolve the prob without help. and a widespread feeling that legal advice was not an option because of costs. Other sources of advice were local councils. let alone negotiation procedures for breach.leaving the source of dispute . the consequences for non-performance. If legal proceedings are so rare. Of those surveyed who had a justiciable prob. landlord and tenant (one in ten). The most familiar of these processes are mediation. 2) Hillary Astor and Christine Chinkin: Dispute Resolution in Australia In western culture. it may be an act of desperation. most businesses only outline their primary obligations to each other. to prove innocence. uncertainty about where to go for advice.‘exit and avoidance’. The use of the word ‘alternative’ suggests a litigation-centric view of dispute resolution. litigation is perceived to be the dominant mode of dispute resolution.self-help eg physical retaliation.ADR .‘lumping it’. Disputes involving ownership of residential property involved legal proceedings in one out of three cases. police. When problems do occur. as opposed to 35% of Federal Court cases and 34% of Administrative Appeals Tribunal cases.endurance. Many ppl who have legal probs for which there is a remedy do not seek legal advice or pursue any formal legal remedy. and when the other party was not a regular and known trading partner. In contractual agreements. Ppl have different aims when they take action to resolve their disputes. 5 % of family law cases require judgments. why do ppl initiate them at all? For large corporations it may be a negotiating tactic. a threat or a means of moving the dispute forward. drama and art. Those who sought help used a wide range of sources: 25% went to a lawyer.in two out of three cases. may fit into one or more category. • • All the specific dispute resolution processes defined below can fit into one of these three categories (facilitative. In 57% of neighbourhood problems the aim was a change in behaviour. as well as provide advice on the merits of the dispute. consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. Examples of determinative dispute resolution processes are arbitration. Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner plays multiple roles. possible or desirable outcomes.expert determination and private judging. Advisory dispute resolution processes. in some cases. in some cases. develop options.By NADRAC 2003 • Facilitative dispute resolution processes. • ADR is an umbrella term for processes. Examples of facilitative processes are mediation. facilitation and facilitated negotiation. Advisory processes include expert appraisal. Conciliation is a process in which the parties to a dispute. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. in conciliation and in conferencing. develop options. such as med-arb. and how these might be achieved. 3) Definitions of ADR Processes: Dispute Resolution Terms . mini-trial and early neutral evaluation. Case appraisal is a process in which a dispute resolution practitioner (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved.processes where a dispute resolution practitioner assists the parties to a dispute to identify the disputed issues. identify the issues in dispute. or money problems.are process in which a dispute resolution practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. ADR is commonly used as an abbreviation for alternative dispute resolution. the law and. in which an impartial person assists those in a dispute to resolve the issues between them. In hybrid processes. but can also be used to mean assisted or appropriate dispute resolution. For example. Case presentation (or Mini-trial) is a process in which the parties present their evidence and arguments to a dispute resolution practitioner who provides advice on the facts of the dispute. The conciliator may advise on or determine • • • • • . the dispute resolution practitioner may facilitate discussions. with the assistance of a dispute resolution practitioner (the conciliator). advisory and determinative) and. case presentation. Arbitration is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. but not a determinative role. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution. though this was not the same aim for those with divorce issues. and. See also mini-trial. Determinative dispute resolution processes. the practitioner first uses one process (mediation) and then a different one (arbitration).those with employment problems.processes in which a dispute resolution practitioner considers and appraises the dispute and proveds advice as to the facts of the dispute. consider alternatives and endeavour to reach an agreement. in the case of hybrid or combined processes. cases appraisal. See also PDR. other than judicial determination. on possible and desirable outcomes and the means whereby these may be achieved. give expert advice on likely settlement terms. • Fast-track arbitration is a process in which the parties to a dispute present. provides advice on the substance of the dispute. Note: there are wide variations in meanings for ‘conciliation’. . which may be used to refer to a range of processes used to resolve complaints and disputes including: -Informal discussions held between the parties and an external agency in an endeavour to avoid. at an early stage in attempting to resolve the dispute. and may actively encourage the participants to reach an agreement. • Expert appraisal is a process in which a dispute resolution practitioner. A sole practitioner is a sole trader or other individual operating alone and directly engaged by clients.the process of conciliation whereby resolution is attempted. and may make suggestions for terms of settlement. (See also combined processes). an impartial party facilitates discussion between the parties. and most effective means of resolving the dispute without determining the facts of the dispute. • Evaluative mediation is a term used to describe processes where a mediator. • Indigenous dispute resolution refers to wide range of processes used to resolve dispute involving Indigenous people. • Fact finding is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the investigator) who makes a determination as to the facts of the dispute.Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary. In the Australian context the term Indigenous (capital ‘I’) refers specifically to the Aboriginal and Torres Strait Islander peoples. chosen on the basis of their expert knowledge of the subject matter (the expert appraiser). See also investigation. Other examples include elder arbitration. for example. at an early stage in an attempt to resolve the dispute. also evaluates the merits of the dispute and provides suggestions as to its resolution. advisory or determinative… • Dispute resolution practitioner is an impartial person who assists those in dispute to resolve the issues between them. • Expert determination is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner. That practitioner makes a determination on the key issues in dispute. investigates the dispute. but who does not make any finding or recommendations as to outcomes for resolution. including the various processes described in this glossary. • Early neutral evaluation is a process in which the parties to a dispute present. • Dispute resolution refers to all processes that are used to resolve disputes. Dispute resolution processes may be facilitative. arguments and evidence to a dispute resolution practitioner. who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert) and who makes a determination. The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved. arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination on the most important and most immediate issues in dispute. whether within or outside court proceedings. resolve or manage a dispute -Combined processes in which. as well as facilitating negotiations between the parties. makes proposals for settlement or actively contributes to the terms of any agreement’. agreement-making and consensus-building. A practitioner may work privately as a statutory officer or through engagement by a dispute resolution organisation. probable and desirable outcomes and the means whereby these may be achieved. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution. Partnering involves the development of a charter based on the parties’ need to act in good faith and with fair dealing with one another. most schemes have the power to make a determination. The Family Law Act 1972 (Cth) ‘encourages people to use primary dispute resolution mechanisms (such as counselling. See also case presentation. identify the disputed issues. develop options. but may advise on or determine the process of mediation whereby resolution is attempted. • • • . determination by a court. under a court order. especially via e-mail. the power to make the determination lies with an Ombudsman. If the industry member and consumer do not reach agreement. especially in industries previously owned or regulated by governments. a number of industry ombudsmen have been appointed. whose responsibility it is to protect citizens’ interests in their dealings with a variety of service providers. but not the consumer who can choose to accept or reject the determination. energy. there is a Commonwealth Ombudsman as well as state and territory ombudsmen. Some schemes are required to meet standards established by ASIC. arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made’ (section 14). Ombudsman (or Ombud) is a person who ‘functions as a defender of the people in their dealings with government. with the assistance of a dispute resolution practitioner (the mediator). improved communication. On-line dispute resolution. eADR. or instead of.• • • • Industry dispute resolution: Industry specific dispute resolution schemes deal with complaints and disputes between consumers (including some small business consumers) and a particular industry. consider alternatives and endeavour to reach an agreement. of the communication in the dispute resolution process takes place electronically. Mini-trial is a process in which the parties present arguments and evidence to a dispute resolution practitioner who provides advice as to the facts of the dispute. ODR. See also automated dispute resolution processes. panel or referee. The determination is binding on the industry member. and (b) mediation. Schemes are usually funded by the industry but governed by an equal number of industry and consumer representatives. PDR (Primary Dispute Resolution) is a term used in particular jurisdictions to describe dispute resolution processes which take place prior to. The Federal Magistrates Act 1999 defines primary dispute resolution processes as ‘procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth. and (d) neutral evaluation. and advice regarding possible. cyber-ADR are processes where a substantial part. Depending on the scheme. and (e) case appraisal. for example telecommunications. or all. or subject to an existing contractual agreement. and includes: (a) counselling. … In Australia. and (c) arbitration. and (f) conciliation’ (section 21). See also ADR. mediation. the identification of likely problems and development of formal problem-solving and dispute resolution strategies. The partnering process focuses on the definition of mutual bjectives. … In addition. Mediation may be undertaken voluntarily. banking and insurance’. Mediation is a process in which the parties to a dispute. Is increasingly used instead of litigation or arbitration. the thrid party can ‘switch hats’ and offer an opinion on the likely outcome of the case if it were to proceed to trial. if unsuccessful ask for an advisory opinion by the mediator which is binding as an award unless either party vetoes the opinion within a limited period of time. and with substantial savings in time and cost. Another med/arb variation growing in popularity is mediation. ‘An increasing number of variations on the med/arb model are emerging: mediate first and if mediation fails. Shuttle mediation is a process in which the parties to a dispute. if unsuccessful. US and Canada. mediation proceeds and at some point. The impartial third party can be a facilitator of these negotiations and in this capacity behaves like a mediator. In that capacity.should the mediator also be the arbitrator? Mediator. arbitrate. It also avoids the rigours of the application of rules of evidence and procedure and offers a finality which avoids • • • . in course of mediation. There are also inquisitorial elements however. parties agree that mediation be replaced with arbitration. Early neutral evaluation. The mediator may move between parties who are located in different rooms. an opportunity which is at the cornerstone of natural justice. is told confidential things by each party. It has adversarial elements because it provedes for party representatives to present the theories of their respective cases. could the confidentialities told to the mediator influence him/her? The problem is that this could happen without the other party having had any opportunity to answer the opponent’s case. followed by a final offer by each side. coupled with limited argument. because the panel to whom the parties make their case presentations has the power to inquire into the matter independently and with the assistance of an impartial third party. mediate. but less so in Aus. develop options. A question raised: should the mediator also be the neutral evaluator? One danger of such an approach is that the mediator might compromise his/her impartiality by acting as an evaluator before facilitating in mediation. Expert determination. then return to mediation. the third party will act in a role akin to expert appraisal or early neutral evaluation. 4) Hybrid Processes • Mini-trial. much as might be done in a formal court setting.• • Senior executive appraisal is a form of case appraisal presentation or mini-trial where the facts of a case are presented to senior executives of the organisations in dispute. start arbitration proceedings and allow for mediation at some point during the arbitration. consider alternatives and endeavour to reach an agreement without being brought together. eg. If those negotiations fail however. But if that same mediator also abitrates. following which the mediator turned arbitrator must choose one or other of the offers’. or meet different parties at different times for all or part of the process. sort out some issues before proceeding to mediation. Popular in Asia. but may advise on or determine the process of mediation whereby resolution is attempted. mediate some issues and arbitrate others. Proponents of this process see it as offering the prospect of less formal procedures (often with no lawyers involved). After the senior executives have heard the presentations they often negotiate among themselves. identify the disputed issues. Same problem arises here as in early neutral evaluation. Mediation and arbitration ‘med/arb’. with the assistance of a dispute resolution practitioner (the mediator).its purpose is to give the parties information that can form the basis for further negotiation. then arbitrate some unresolved issues. Seems to be most used by those involved in commercial disputes.also known as senior executive appraisal. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution. mediate.In its most common form. since further tax advice needed to be sought. but later sued Lewenberg and others (including the mediator) and sought to have the agreement set aside. after which an agreement was reached. according to the CPR s26(1). and must aim to finish the case appraisal as speedily as possible. but protested. CPB s33 gives immunity to mediators when the mediation is ordered by the court. But then the mediator intervened saying: ‘No we are going to do it now. [Tapoohi v Lewenberg (no. The idea is to offer a view as to the possible/probably outcome of the case if it went to court. ignoring input from Tapoohi’s side. It was later construed as a binding agreement. An agreement ‘in principle’ was reached. and one of Lewenberg’s side went home. Parties also have a right to private mediation. Issues: The conference had been called a mediation. Tapoohi’s lawyers were particularly concerned with any tax issues which might arise from a settlement. . Parties must participate in the mediation in good faith (s27). Tapoohi’s side were considering calling it a night also. The settlement did not contain the express term that the agreement was subject to further taxation advice. What happened: During mediation. ‘evaluative mediation’ involves evaluating the merits of the case and providing suggestions regarding its resolution. The fact that in [Tapoohi] the judge dismissed the application for summary judgment indicates that immunity for private mediators is a contestable issue. However. Case Appraisal. but differs from mediation in that it goes beyond facilitation to evaluation of the case. We are signing up tonight as that is the way that I do it…It is in the interests of both parties to sign up tonight’. The mediator compelled them to stay. but may advise on or determine the process of mediation whereby resolution is attempted. s/he may receive evidence and examine witnesses. with some exceptions. with s33 allowing parties to be penalised if they do not comply with the mediator’s directions. Tapoohi’s side took this as a direction from the mediator. Mediation is described as a process in which an impartial third person facilitates communication between the parties with a view to assisting them to reach a resolution of their dispute. potential re-hearings and appeals.s34. Tapoohi’s side put forward a proposal. The judge refused.Facilitative and Evaluative Models There is a degree of tension between these two models of mediation. Tapoohi’s QC then left the mediation. When do matters go to mediation? .The case appraiser must decide on a procedure to be used in appraising the case (at his/her discretion). This process is similar to mediation in that it is not binding on the parties. This case is also instructive on the issue of mediator immunity. 6) Court Ordered Mediation Courts may order mediation. and arguably went beyond the boundaries set by the evaluative mediation model.2)] Facts: Tapoohi sued Lewenberg over properties which were held by the family estate. NADRAC states that mediators have no advisory or determinative role in regard to the content of the dispute or outcome. The mediation lasted all day. and s26(2) allows the mediator to be appointed by the court. The mediator then sought an application to have the claim against him summarily dismissed. but it was more like a very directed settlement conference. but stated that it was not binding yet. In special circumstances. the two parties agreed to mediation (this was not court-ordered mediation).• delays.s30. Shortly after litigation began. Most dialogue/documents are under privilege. and the remaining solicitors looked over the agreement briefly. and is particularly useful where an expert knowledge of the subject is reuired or where the parties may have a continuing relationship. However. whether this immunity extends to mediators in private mediation is yet to be decided. and none of Tapoohi’s side realised it was missing. and then proceeded to dictate the tems of the settlement. It certainly was not facilitative mediation. 5) Mediation. Tapoohi signed. 3) Because mediation is inappropriate for matters involving many disputed facts having negligible prospects of a mediated outcome. there were many good and experienced mediators who would not be as expensive as ex-Judges. [Singh v Singh] Facts: Parties were former friends who had a serious falling out. Also the public interest is best served by allowing the Court to exercise its judicial functions. The judge ordered mediation. The parties wanted to have the defence filed first but he refused saying ‘You can go and make love before you make war…not the two simultaneously. Held: 1) Mediation would not disadvantage the intellectually disabled. The defendant’s asked the Court for mediation. and that this cannot be done under mediation but only by the judicial process. [Capolingua] . it doesn’t work’. [Azmin] Held: It has been shown through experience that mediation. Asked that if Court decided to order mediation anyway. and there is no reason why the public interest objective cannot be met in the give and take or true mediation 3) Mediation may be productive even if a party is initially a reluctant participant. can be successful. Also. P felt that the D was trying to avoid being cross-examined and trying to drain P’s limited resources. Issues: ACCC submitted 3 arguments against mediation: 1) Because their client was intellectually disabled and would be disadvantaged in mediation 2) Because the ACCC’s function is to enforce the Trade Practices Act. Held: That mediation might still be successful even if one of the parties was reluctant. 2) There is a competing public and curial interest in the mediation process. from time to time. [Australian Competition and Consumer Commission v Lux Pty Ltd] Facts: Lux sold a product to an intellectually disabled person who may have been incapable of making an informed decision. but ACCC objected. The parties. have found unexpected ways of finding a compromise. even in major commercial litigation. but the plaintiff refused..1) By agreement of parties 2) When court orders mediation (even without parties’ consent) 3) Pursuant to a contractual clause. Judge maintained mediation was still useful in this case. even if it did not solve the whole dispute. Mediation compels the parties to listen to each other and has a cathartic effect. The judge also felt that mediation might held resolve one or more outstanding issues. [ACCC v Cadbury Schweppes] Held: Judge ordered mediation before the defence had even been filed. ask that the mediator be an ex-judge. but is more flexible.Held: Acting in good faith means taking a ‘constructive and cooperative approach’.services provided by the Banking and Financial Services Ombudsman Limited (inquisatorial dispute resolution processes) . 7) Arbitration Arbitration is an adversarial process where an impartial third party (which could be a panel or individual) makes a binding determination after hearing evidence presented by the parties. or by their agents.the parties are only compelled to attend and particpate in good faith. Negotiation is usually an element in most ADR processes. It is the ADR process most similar to litigation.it is a short form of litigation with legal authority. It can also be understood as a stand-alone process. and the capacity of the arbitrator to adopt an inquisatorial process. fewer rules of evidence. but are often conducted by the parties themselves. and arbitration can be ordered without the consent of parties. Arbitration is found in commercial and construction disputes. more restricted discovery. but Tribunals also may have provisions to allow for the making of mediation orders. Ombudsmen. Courts do not order parties to reach a resolution when mediation is ordered. with no right to appeal on merits (s41). but one can’t draw inferences of lack of good faith simply because parties adopt strong positions at the outset and show reluctance to move in the direction of compromise’. eg . 8) Negotiation Negotiation does not involve an impartial third party. A parties’ behaviour is only relevant to costs if they adopt an uncooperative attitude in an attempt to narrow the issues. When is a matter referred to arbitration? 1) Parties agree (dealt with under Commercial Arbitration Act) 2) Pursuant to some international agreement (dealt with under International Arbitration Act) 3) Court Ordered (Pt 5 of CPB) Arbitrators are usually solicitors or barristers or judicial officers. s39 holds that the arbitrator’s decision is a judgment of the Court. though a party may apply for rehearing (s41-3). [Freeman v NSW Rural Assistance Authority] Held: ‘An undertaking to participate in good faith involves a willingness of the parties to consider options for resolution. including the hybrid processes. This is because there is: the capacity to arbitrate without pleadings. 9) Other Dispute Resolution Processes. These cases indicate that in Aus there is a clear judicial preference in favour of mediation orders even if one or more parties objects to the order. Not only Courts. Arbitrators have the jurisdiction of the Court by which the proceedings were referred (s37(1)). Energy and Water Ombudsman (allows for direct communication. There are also community based dispute resolution services eg. construction. telecommunications and aged care. Dispute Settlement Centre Victoria offers mediation and advisory services. negotiation and arbitration) Similar dispute resolution schemes can be found in areas of insurance.2 NSW Civil Procedure Bill 2005 s26 Referral by court .. Community Justice Centres in NSW proved similar free services for community disputes. CLASS 2. including the costs payable to the mediator. or part of any such proceedings.A document prepared for the purposes of. consent to the admission of the evidence or document.Subject to section 29(2).The costs of mediation. or any copy of such document. or (b) in any other cases. for mediation by a mediator. the court may.The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court. in relation to the matters the subject of a mediation session. (6). are payable: (a) if the court makes an order as to the payment of those costs.The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to: (a) a mediation session. as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement. or (b) in proceedings commenced with respect to any act or omission in connection with which a disclosure has been made as referred to in section 31(c). including evidence from the mediator and any other person engaged in the mediation. s27 Duty of parties to participate . for the purpose of enabling a mediation session to be arranged. s30 Privilege (1). in the case of a document. who may (but need not) be a listed mediator. by order. the mediation session and. or identified during.Subsections (4) and (5) do not apply with respect to any evidence or document: (a) if the persons in attendance at.It is the duty of each party to proceedings that have been referred for mediation to particpate. a mediation session. s29 Agreements and arrangements arising from mediation sessions (1). or in the course of. by one or more of the parties in such manner as the order may specify. (4). or as a result of. in the mediation. by the parties in such proportions as they may agree among themselves. whether or not arising out a mediation session. and may do so either with or without the consent of the parties to the proceedings concerned.This Part does not affect the enforceability of any other agreement or arrangement that may be made. (2).The court may make orders to give effect to any agreement or arrangement arising out of a mediation session. s28 Costs of Mediation . is not admissable in evidence in any proceedings before any court or other body. refer any proceedings before it. or any copy of such document. (5). in good faith. is not admissable in evidence in any proceedings before any court or other body. (2).If it considers the circumstances appropriate.In this section. s31 Secrecy s32 Directions by mediator .(1). (2). or sent to or produced at the court or the registry of the court.In any proceedings under this section. evidence of anything said or of any admission made in a mediation session. mediation session includes any steps taken in the course of making arrangements for the session or in the course of the followup of a session. any party may call evidence. (3). or (b) a document of other material sent to or produced to a mediator. all persons specified in the document. or (b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money. s33 Protection from liability for listed mediator . be referred for determination by an arbitrator. on the date on which it is filed in the referring court. s40 Award taken to be judgment of court . s38 Referral to Arbitration (1). and (c) for related purposes. by order.Subject to the uniform rules and any relevant practice notes.Subject to section 41 and Division 3. (5). s39 Determination by arbitrator (1).Without limiting subsection (1). and (b) may award costs against a party for failure to complete specified steps within the time allowed.Despite subsection (4). an order under this section: (a) may direct the parties to the mediation as to the time within which specified steps in the mediation must be completed. by reason only that the amount awarded exceeds the amount claimed in the proceedings to which the award relates.A listed mediator to whom the court refers proceedings has. s36 Appointment to office as arbitrator s37 Jurisdiction of Arbitrator (1). or (b) in any other case.An arbitrator may not make a determination that could not have been made had the proceedings been heard and determined by the referring court. (4).The court may order proceedings before it: (a) in respect of a claim for the recovery of damages or other money.The jurisdiction conferred on an arbitrator by this Part in relation to referred proceedings is part of the jurisdiction of the court by which the proceedings were referred. and may not be called into question.The issues in dispute in referred proceedings are to be determined by the arbitrator on the evidence adduced before the arbitrator. s34 Mediation otherwise that under this Part .The functions conferred on an arbitrator may be exercised only: (a) for the purpose of determining the issues in dispute in referred proceedings. the same protection and immunity as a judicial officer of the court has in the exercise of his or her functions as a judicial officer. and is taken to be the judgement of the referring court: (a) if it is expressed to be made by consent of all the parties. a mediator may. in the exercise of his or her functions as a mediator in relation to those proceedings. give directions with respect to the conduct of the mediation. (4). at the expiry of 28 days after it is sent to all of the parties. an award is final and conclusive. and (b) for the purpose of making an award in referred proceedings. (2). . an award does not fail to have full effect.(1).This Part does not prevent: (a) the parties to proceedings from agreeing to and arranging for mediation of any matter otherwise than as referred to in this Part. no rights of appeal to appellate court] (2).12 Rehearings under Division 3 of Part 5 of Civil Procedure Act 2005 (1).s41 Judicial supervision of arbitrator (1).Despite subrule (2). (3). the court may certify that the special circumstances of the case require the court: (a) to make an order referred to in subrule (2)(a). in which case the court may refrain from making that order. s43 Order for rehearing (1). s42 Application for rehearing (1). and (b) must order party A to pay the costs incurred by party B by reason of the rehearing.The referring court must order a rehearing of proceedings the subject of an award if an application for rehearing is made before the award takes effect.An order for rehearing need not be made if it appears to the court that the applicant failed to attend a hearing before an arbitrator without good reason. rehearing means a rehearing conducted under Division 3 of Part 5 of the Civil Procedure Act 2005 (2).An order for rehearing may not be made unless the amount claimed in the proceedings. in .The application may (but need not) request that the rehearing be a full rehearing or limited hearing. .The award is suspended from the time the application is made until an order for rehearing is made.which case the court may make that order.Subsection (1) does not apply if the relief is sought on the ground of a lack of jurisdiction or a denial or natural justice. the court: (a) may not order party B to pay costs incurred by party A by reason of the rehearing. (2). pt44 Rehearing pt 45 Discontinuance of rehearing pt 46 Costs of rehearing pt 47 Subpoena at rehearing against arbitrator NSW Uniform Civil Procedure Rules 2005 Pt 42. or (b) to refrain from making an order referred to in subrule (2)(b).A person aggrieved by an award may apply to the referring court for a rehearing of proceedings concerned. Practice Note 120 Para 8 .It is expected that the parties’ legal representatives will have discussed the case before the initial status conference and will have: (e) discussed the possibility of settling the dispute by Alternative Dispute Resolution (ADR).In this rule: party A means the party on whose application a rehearing has been conducted party B means any party to a rehearing other than party A. exceeds the jurisdictional limit of the Small Claims Division of a Local Court (3).If the determination of the court is not substantially more favourable to party A than is the determination of the arbitrator. or the value of the property to which the proceedings relate. (3). (2).No relief lies: … in relation to proceedings under this Act on referred proceedings [no appeal on merits. Class 3.Where the court refers proceedings for arbitration. . the Court may consider whether the proceedings are suitable for ADR.At any status conference. (3). neutral evaluation or arbitration. unless it appears to the court that there is good reason why the matter should not be the subject of arbitration. (5). The orders and directions made at a status conference are designed to resolve the case as quickly as possible. . relationship breakdown with defendant. Process and Interim Measures 1) Is it worth suing? . refer the proceedings for arbitration by a single arbitrator. party-party). the court may give directions for the conduct of the arbitration. expense.All parties attend a status conference to conduct an in-depth review of the case.Need to advise client about litigation and its disadvantages and risks. the Court will refer the proceedings for mediation.Where proceedings involve a claim for damages in respect of personal injuries or in respect of the death of any person.Very stressful. The tasks at a status conference include. delays. but are not limited to: (e) considering whether Alternative Dispute Resolution is suitable. risk of losing. the court will. Early Moves: Service.If the matter appears to the Court to be appropriate for resolution by mediation. A. Para 13 (1). winning might still involve costs (eg.Para 11. (6). neutral evaluation or abitration. at the status conference. because penalties are incurred if your client ends up winning less that half of the maximum award of the court below. the state and territory Supreme Courts and the Family Court of WA are all part of this cross-vesting scheme. while the District Courts can award up to $750 000. The Federal Court. 3) Where should the case be brought? In NSW. in the interests of justice. the cost of this letter is recoverable. and allowing the transfer of proceedings between courts participating in the scheme. it allowed cases to be transferred to more appropriate courts within the scheme. litigation will commence. This rogue legislation was severed. in the interests of justice. the second court is more appropriate.the [Voth] test (the ‘clearly inappropriate forum’ test). So the scheme came into being. However. it allowed cases to be started in courts which formerly lacked jurisdiction. you would be penalised in the Supreme Court if less than $375 000 was awarded. This letter sets out the client’s case and demands money. whether the chosen court would have had jurisdiction but for the cross-vesting scheme. if the plaintiff fails to write this letter. [Bankinvest AG v Seabrook] Held: Described the decision to transfer the case as a ‘nuts and bolts’ management decision as to which court. Firstly. the Family Court. If the plaintiff goes on to win the case. This scheme arose in the 1970s because of the growth in federal legislation and the foundation of the federal courts. as is the State legislation. and whether the transfer would be in the ‘interests of justice’. the perception that the status of the Supreme Courts was being eroded. for example). the higher the court. It is both necessary and sufficient that. [BHP Billiton Ltd v Schultz] Issues: There was a confusion over whether to use the [Bankinvest] approach or the approach taken in cases where an application is made for a stay of proceedings based on ‘forum non conveniens’. The constitutional validity of the scheme was challenged. the higher the risk. and the High Court held that the cross-vesting scheme was invalid to the extent that it gave state jurisdiction to federal courts. The Supreme Court can award anything above or below that. is the more appropriate to hear and determine the substantive dispute’. The [Bankinvest] approach is the preferred approach in Aus. while defendants would want the opposite. there are greater costs in the higher courts. the maximum amount the Local Courts can award is $60 000. P may be penalised in costs. stipulating that if the money is not paid within a certain date. The factors relevant to the exercise of the discretion are: whether there are related proceedings in another court.2) Next Moves Traditional textbooks always remind plaintiffs’ solicitors to write a ‘letter of demand’ (textbook calls it a ‘letter before action’) to the other side before commencing the case. whether the interpretaion of a Cth law or state law of another jurisdiction is in issue. There were problems with split jurisdiction (where litigants could not have all the issues adjudicated in the one court). That is. Plaintiffs would want to go to the highest Court possible. Additionally. if it later emerges that the litigation was unncessary. Secondly. Held: It is not necessary that it should appear that the first court is a ‘clearly inappropriate’ forum. However. leaving the cross-vesting of state jurisdiction among state courts. it invested each court in the scheme with the civil jurisdiction of the other courts. if necessary. 4) Cross Vesting Schemes The Jurisdiction of Courts Cross-Vesting Act (Cth) is relevant here. and the concern that litigants were forum shopping between State and Federal Courts. Section 5 of the Act deals with the transfer of proceedings. . (Therefore. to questions of cross-vesting and its ‘interests of justice’ provision. they may enter an appearance (send a document back to the P). Service is regarded as being necessary and sufficient to found a court’s jurisdiction (assuming there isn’t a statutory restriction as to subject matter. and if s/he is represented.Pleadings).any difficulties of plaintiff in effecting service .whether renewal/failure to renew would cause prejudice .balance of convenience between the parties . The summons simply summons the defendant to Court on a certain date. In this course. put their solicitor’s address and the solicitor’s DX number (optional). outlined in UCPR pt6. or a claim to property or a ship).The interests of justice are not the same as the interests of one party.the statement of claim and the (originating) summons.3.the ‘transient rule’ of jurisdiction. see Class 6. we are only interested in proceedings begun by a statement of claim. the time for service can be extended. Two canadian tourists to NSW sue each other in contract. . it becomes ‘stale’. but the statement of claim sets out the plaintiff’s pleadings. and there may be interests wider than those of either party to be considered. where case has nothing to do with Aus). 5) Originating Process This is the document which commences litigation. so that P’s future documents to D can be sent to D. Once the originating process is filed in court. the court has jurisdiction’ (no matter how inappropriate it may be). The next thing you do is serve it. There fore.pt6. However. When a statement of claim is drawn up. the case can proceed (for discussion of the requirements of a statement of claim.reasons why service was not effected within the original period of validity. and then granting the application.‘Once the defendant has been served. The decision whether to renew or not is a matter of discretion. and the court will stamp it and keep a copy of it. what do you do with it? You file it. This rule can be manipulated to invest the courts with jurisdiction over cases where the parties’ contact with state is merely transient (eg. 6) Service of Originating Process . take it to the Court registry and get a court stamp on it. which must stipulate D’s address for service. it is valid for service for a prescribed period of time (6 months. or if it is an ‘inappropriate forum’. including the presumption in favour of the plaintiff’s choice of forum.2(4)). one for your client etc). or divorced from practical reality. a court has no jurisdiction unless the D has been served in one of the various ways. the Courts do this by first extending the time for making the application. The justice referred to in s5 is not disembodied. A court may decline to proceed with a case if it is pending elsewhere (and then refer it to another jurisdiction).Once D is served. area etc). In NSW. . or unless the court exercises its powers under the rules to order that the defendant be taken to have been served.On the P’s statement of claim.The general rule is that no step can be taken against Ds until they have been served with the originating process. 7) Personal Service Once D is properly served. .This general rule applies to all cases in which the court is exercising an ‘in personam’ jurisdiction (all civil cases excepting those involving status. all jurisdictions are flexible and cater for ex parte applications. the P must put the address for address. Factors considered include: . [BHP] endorses [Bankinvest] and rejects the application of the [Voth] test. If the originating process is not served within that time. You make a few copies (one for yourself. NSW has two types of originating process. . though the interests of the respective parties…will arise for consideration.this is a matter of discretion. . However. Service on D’s lawyers . long enough to realise what was inside. She handed it to him and he held the document for about 10 seconds. .the explanation need not be exhaustive eg. telling her to send it back. documents served may be served to the opposing side’s solicitors.fax. However. [Elkateb] Held: The requirement to explain the nature of the document is ‘not very demanding’. proceed to alternative method of service 2) Did D accept the document? If not. 2) Only a refusal of the document would equal the person ‘not accepting the document’. Leaving a document with a person does not mean that D must accept it. if the person does not accept the copy. Held: Two1) Was the document left with the D? If not.Generally. and D was overheard saying to his friend ‘we’d better have a look at these’. [Ainsworth] Facts: Statement of Claim held out to D. personal service of a document on a person is effected by leaving a copy of the document with the person or. [Ricegrowers] Held: The D’s solicitors on the record in one case are not required to accept service for the same D in another case. See pt10. You may serve on a solicitor if s/he makes a note on a copy of the document to say they are accepting the service. even if the person does not actually take the document into his physical possession. [Rogerson] Facts: The document was given to one of D’s staff.5 of UCPR). where a person accompanying a party took the document although it was tendered to the party and the party was thereafter seen to be reading the document. Once the D has got the statement of claim.20 on methods of personally serving a document. the document had been “left with” the party so as to achieve personal service. but D’s friend took it before D got it. Held: Still constitutes personal service if a staff member accepted on behalf of D.this has been OVERRULED by statute. mail etc (pt10. D and his friend walked away. only that he must not refuse it. ‘this is a statement of claim’ is sufficient. they will serve a notice of appearance and use their lawyer’s address for future documents. The instructions to accept must relate to the specific case. The person serving the document did not explain what the nature of the documents were. Issues: Were the documents personally served on D? According to the Supreme Ct rules at the time (identical provisions hold today).Service on D’s lawyers is allowed if the lawyer has specific instructions to accept it. originating process is usually served to the D personally. Only in this case is it necessary to explain the nature of the document. The general approach to personal service is that it will be effected by leaving a copy of the document with the person to be served. it is a requirement that the originating process be served personally. who took it into D’s office. by putting the copy down in the person’s presence and telling the person the nature of the document. proceed to alternative method of service Answers 1) A document may be left with the person to be served. because it is such an important document.pt10. and there are many ways to serve docs.19(2)(a). Accordingly. D then handed it back to her. DISREGARD the judgment in [Elkateb] where it states an explanation is necessary only if the nature of the document is not clear on its fact. In NSW. 14(2). originating process may be filed in court again and served again. incomplete searches of official registers (electoral registers. (3) and (4)). 9) What happens if you don’t serve the document properly? 1) If its an orginating process which has been filed in court.4.Local rules as to service will apply (rules of country that in which D is served) . However. without leave of the Court.1 11) Service Overseas pt11.2. Service in accordance with an order for substituted service is taken to be sufficient service. if certain steps were taken. it is not sufficient proof of impracticability that it will take 3 months to effect personal service. pt11. the test is more strict.see 3. The D can apply for an order staying the matter on the ground that another Australian Court is the ‘appropriate’ court a term which is given a wide. Service on D’s solicitor was allowed to save time. Courts allowed substituted service. non-exhaustive definition. pt11.2(5) 2) The Court may accept it (pt10. without leave or special indorsements.Service overseas is possible for matters in Schedule 3.pt6. therefore. It it not personal service (if that is what it is replacing) but it is a sufficient alternative. 1) Difficulty: [Amos v Small] Held: A summons had to be served on 19 Ds in 24 hours. 1) That service by the prescribed method is too difficult eg.8) Substituted Service A court may allow substituted service. Service on the Ds’ solicitors was allowed in order to save time.6. [Ricegrowers] Held: In the absence of urgency.If D does not enter a notice of appearance. must show that D has contact with relative on whom you want to serve substitutionally. and the rules as to service are generally those of the place of issue.2(4)(a)of UCPR). 3) Service may be declared valid if D files an appearance. this test is generally less demanding. 2) Reasonable chance eg. 10) Service beyond Jurisdiction but within Australia The relevant statute here is the Service and Execution of Process Act 1992 (Cth). to D’s wife or children.shows they got the Statement of Claim. [Conan Doyle’s] Held: Service would have taken 6 months and the sale (the issue in proceedings) would have concluded. The D’s address for service need not be local. At least 21 days must be allowed for the D to file an appearance. eg. if D is hiding 2) That the substituted method will stand a reasonable chance of bringing the document to D’s attention In cases where service is urgent. Originating process may be served under this Act throughout Australia in civil proceedings. it will be valid for 6 months from that date. If 6 months is up. P must prove two things to get a court order for substituted service. therefore it can be served again (pt6. if there is no urgency. P needs leave of Ct to continue. [Munkarra] Held: No urgency in this case. phone books etc) was not enough to show that regular service was impracticable. Gives court wide powers to make orders for inspection and taking of property to enable proper determination of any matters.8.pt11. and they should give the D the chance to consider the AP order and to consult their own solicitor. 1) Interim Orders to preserve property Court can give orders to preserve property which is the subject matter of the dispute (NOT evidence). [PMSI Group] Held: A supervising solicitor should be present at giving AP orders. pt6. The parties doing the searching should be with their solicitor.7. cannot enter forcibly. evidence or assets generally Court now takes a role very early in proceedings. What is the difference? AP order simply requests the occupier if you may enter their premises. pt23. even before the SOC.a D may enter an appearance by filing a notice of appearance pt6. See [Long] for example of what happens if a searcher fails to comply with an AP order. The D should also be allowed to apply to discharge the order as having been improperly obtained. there will be sanctions. There are no longer conditional appearances in NSW.You have 28 days to file NOA after receiving a statement of claim. If the searchers go overboard and fail to comply with the AP order. it is filed and stamped at court and served to the other side.Service in cross-vested matters. [Anton Piller] This is an order that you can inspect someone’s property with their permission. If trying to set aside the originating process under pt12. B. The appearance is a court form stating the lawyer’s name and address for serving docs. AP orders can be made before. 2) Anton Piller Orders This is an order to protect evidence.a strong incentive for the occupier to permit you. and if no permission is granted. Orders preserving property. D must file a notice of appearance and a defence. If search warrant permission denied.this was intially quite controversial. during and even after trial [Distributori Automatici]. you have 7 days after Ct ruling to file NOA. It is not a search warrant in disguise. for example. With AP order.3 is designed to protect property with competing claims. investment property from being sold. It gives the Ct the power to make ex parte orders for the seizure of property if it considers these are strong grounds for thinking that the property may be removed or destroyed.9. Court can prevent. the occupier may be in contempt of court.8. After it is filled in. [Long] .the power to set aside an originating process on grounds that Ct is inappropriate forum pt11. but it is refused. pt25. you can still enter. seen as very interventionist These orders are pretty common and accepted today. 12) Appearance and Objections Once D has SOC.11.8. sometimes Anton Piller Orders/Mareva Orders.Facts: A searcher did not comply with the exact terms of the AP order and was fined $15000. Orders should include: specific details of the premises and locations to be searched. may require parties to disclose certain information. For this reason. Held: AP orders are an ‘extraordinary remedy’. CLASS 3. the D would destroy or hide the evidence or cause it to be removed from the jurisdiction of the court.there must be a reason for asking. 4) Ancillary Disclosure (of Information) Orders Disclosure orders. Interrogation (a way to get information disclosed) is not always available (eg. prior to SOC).1 NSW Uniform Civil Procedure Rules 2005 . the times between which entry will be permitted. Power comes from inherent jurisdiction to prevent abuse of process. [Bax] [Hospital Products] [Microsoft] Held: Cannot just ask for disclosure to get information. [Jackson v Sterling] Held: upheld general power to grant Mareva orders. but that D is getting rid of assets (transferring assets to another party) to avoid paying money at the end of trial. ‘A Mareva order may be granted if there is a danger of D absconding. not granted lightly. Courts look at a prima facie case against D. and there’s a real risk of assets being disposed of [Media World]. [Derby] Held: A Mareva order can’t be used simply to prevent D from carrying on its business in the normal way. the solicitor failed to make a proper inventory of the items seized and failed to keep control of the things seized as required by the terms of the order. if forewarned. or useful. or disposed of. It is a drastic order. [Cardille] Held: Mareva orders can sometimes be granted against 3rd parties eg. 3) Mareva Orders If you think you will will win. it won’t be satisfied’. If it would have always been the case that P would never have been satisfied. or danger of assets being removed out of their jurisdiction. when 3rd party has some power over the assets. Dawson J et al also spoke of the intentions of D being relevant. Ct cannot force D to artificially change. Among other things. Must look for malicious intent. the ppl allowed to be part of the search team. and a description of the material that can be removed. such orders are invariably made ex parte. designed to obtain and to preserve vital evidence…in a case where it can be shown that there is a high risk that. or the assets are otherwise dealt with so there is a danger that if P gets judgment. Pt 6 Commencing Proceedings and appearance pt 6. a person may commence proceedings in the court by filing a statement of claim or a summons. originating process is valid for service: (a) in the case of proceedings in the Supreme Court or a Local Court.5 The various methods of service (1).3 Where statement of claim required .1 Service of filed documents (1). (2) Subject to these rules. for 6 months after the date on which it is filed. pt 6. pt 6. or (iii) damages in respect of damage to any property pt6. a document may be served on a person: (a) by means of personal service. (2). or (ii) if the defendant makes an unsuccessful application to have the statement of claim set aside.Unless the Court orders otherwise. 7 days after the refusal of the application. whichever is later. a party may not take any step in proceedings unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.1 No step without originating process or notice of appearance. pt10. pt6. the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division of by filing a defence in accordance with Division 4) is: (a) in the case of proceedins commenced by a statement of claim: (i) 28 days after service on the defendant of the statement of claim. a party that files a document must as soon as practicable serve copies of the document on each other active party pt10. the practice notes and any other rules of court.8 How appearance entered (1). or .9 Time for appearance .Subject to these rules.A person who is a defendant may also enter an appearance in proceedings by filing a defence in accordance with Division 4. (3) Originating process must be served on each defendant.For the purpose of these rules. or (ii) damages in respect of personal injuries to any person. the plaintiff may choose whether to commence proceedings by statement of claim or summons.A person may enter an appearance in proceedings by filing a notice of appearance.2 How proceedings commenced (1) Subject to these rules.Proceedings must be commenced by statement of claim in the following circumstances: (b) if a claim is made by the plaintiff for relief in relation to a tort (d) if a claim is made by the plaintiff for damages for breach of duty (however arising) and the damages claimed consist of or include: (i) damages in respect of the death of any person. (1) Except by leave of the court. the practice notes and any other Act or law.3 Service of originating process in Australia pt 10. (4) Subject to subrule (5). (5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process. by serving the document on the corporation in any manner in which service of such document may. addressed to the solicitor. instead of service. pt 10. pt 10. the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved. be served on the corporation. (2) In the case of a person having an address for service that is a solicitor’s office address. by leaving a copy of the document. or (c) by leaving a copy of the document addressed to the person: (i) at the person’s address for service. addressed to the person: (i) to the person’s address for service. to the person’s business or residential address. but not required to be personally served. by law. with a person who is apparently of or above the age of 16 years and apparently working or residing at that address. . but need not be personally served unless these rules so require or the court so orders (2) Except as otherwise provided by these rules: (a) originating process in proceedings in the Supreme Court or the District Court must be personally served on each defendant. that he or she accepts service of the document on behalf of any person. pt 10. such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.(b) by posting a copy of the document. or (d) in the case or service on a corporation.13 Acceptance of service by a solicitor . (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on expiry of a specified time. by faxing a copy of that document to that number. in that DX box at that address or in another DX box for transmission to that DX box. or (b) if the notice advising the address for service includes a fax number. or (b) cannot practicably be served on the person in the manner provided by law. or (b) any other document required or permitted to be served in any proceedings. direct that the document be taken to have been served on that person on a date specified in the order. service of a document on the person may also be effected: (a) if the notice advising the address for service includes a DX address. by transmitting an electronic copy of that document to that address.14 Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person. (4) Service in accordance with this rule is taken to constitute personal service.If a solicitor notes on a copy of (a) any originating process. or (ii) if the person is not an active party. by order. for the purpose of bringing the document to the notice of the person concerned. (3) If steps have been taken.Any document required or permitted to be served on a person in any proceedings may be personally served. be order. otherwise that under an order under this rule. to the person’s business or residential address.19 Personal service required only in certain circumstances (1). the court may. the court may. or (c) if notice advising the address for service includes an electronic mail address. or (ii) if the person is not an active party. direct that. If. be served on the corporation.Originating process may be served outside Australia in the circumstances referred to in Schedule 3 pt11. (2).5 Service of documents other that originating process . pt11.Service in accordance with subrule (2) is taken to constitute personal service. pt 10. the Supreme Court may make an order under this rule: (a) on the ground that the service of the originating process is not authorised by these rules.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. pt11.20 How personal service effected generally (1).3 Notice to the defendant served outside Australia . a notice in the approved form must be served with the originating process. the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. if the person does not accept the copy.This part does not require the leave of the Supreme Court for any service or other thing that may be effected or done under any law of the Commonwealth.Personal service of a document on a person is effected by leaving a copy of the document with the person or.Service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Supreme Court or is subsequently confirmed by the Supreme Court.6 Mode of service A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. pt10. pt11. pt 11.The Supreme Court may make an order of a kind referred to in rule 12.Without limiting subrule (1). by putting the copy down in the person’s presence and telling the person the nature of the document (2). a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person.4 Leave for plaintiff to proceed where no appearance by defendant (1) If originating process is served on a defendant outside Australia. pt12. (2) A motion for leave under subrule (1) may be made without serving notice of motion on the defendant. by law.21 Personal service on corporation .2 Cases for service of originating process [Overseas] .If Originating process is served on a defendant outside Australia. pt11.Personal service of a document on a corporation is effected: (a) by personally seving the document on a principal officer of the corporation. by violence or threat of violence. a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. (3).In any proceedings. and the defendant does not enter an appearance. the plaintiff may not proceed against the defendant except by leave of the Supreme Court.8 Operation of Commonwealth laws . pt11. or (b) by serving the document on the corporation in any other manner in which service of such document may. or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings. the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process .11 Setting aside originating process etc (1).7 Setting aside originating process served outside Australia (1).(4) Unless an earlier date is proved. for the purpose of getting access to the property (3) A party applying for an order under this rule must.In proceedings concerning the right of any party to a fund. (5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection).In proceedings concerning property. so far as the court is aware of them. but do not include the fact that the proceeding was commenced in the place of issue. the court may make orders for any of the following: (a) the inspection of any property.All parties attend a status conference to conduct an in-depth review of the case. or to do any other thing. and (e) the law that would be most appropriate to apply in the proceedings. but are not limited to: (a) considering whether the proceedings would more appropriately be heard in the District Court and making a consent order accordingly Service and Execution of Process Act 1992 (Cth) 20(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include: (a) the places of residence of the parties and of the witnesses likely to be called in the proceedings. and (c) the financial circumstances of the parties. pt 25. Practice Note 120 Rule 11. property includes any land and any document or other chattel. (6) In this rule. so far as practicable. custody or preservation of the property. (b) the taking of samples of any property (c) the making of any observation of any property (d) the trying of any experiment on or with any property (e) the observation of any process. .8 Inspection of Property (1). whether in the ownership or possession of a party or not.3 Preservation of Property (1).pt 23. the court may make orders for the detention. (2) An order under subrule (1) may authorise any person to enter any land. (3). and (b) the place where the subject matter of the proceeding is situated. The tasks at a status conference include. or in which any question may arise as to property. serve notice of motion on each person who would be affected by the order if made. and (f) whether a related or similar proceeding has been commenced against the person served or another person. the court may order that the fund by paid into court or otherwise secured. and (d) any agreement between the parties about the court or place in which the proceeding should be insituted. The orders and directions made at a status conference are designed to resolve the case as quickly as possible.For the purpose of enabling the proper determination of any matter in question in any proceedings. whose identities are established and who are of full legal capacity.The classic dispute involves two ppl. In such a dispute. what the cause of action is. . the P knows who the appropriate D is. and the parties have the capacity to sue and to be sued in their own names.CLASS 4 Parties and Causes of Action 1) Scope of this Chapter . This rule suggests it is plaintiff’s choice to join. but suing as executor in your personal capacity in relation to some will 3) Where the court gives leave. Infants. Nor can a creditor sue a bankrupt without court leave. subject to Ct’s discretion. they need to have a solicitor on the record. bring it up in same trial. . where in both cases D was a vendor 2) Where not suing in same capacity. and D2 10%. . some cases are more complex. [Anshun] Facts: P sued D1 and D2 in negligence. . need to have a ‘tutor’. Held: ‘The matter now sought to be raised by the Authority was a defence to Anshun’s claim in the first action. Prevented from suing later [Anshun estoppel]. D1 held to be 90% liable.Under Pt6.Companies can sue and be sued. Also. saying that if D1 held liable for negligence. as they were more worried about 2 different judgments and closeness of subject matter. Companies in liquidation are controlled by their liquidator. both should be brought up in the same trial. Or they may be unable to sue or defend on their own. ‘next friend’ or ‘litigation guardian’ to sue on their behalves. . [Anshun] did not rely on [Henderson]. though they may not be pronounced on the same cause of action.A cross claim is where P sues 2 Ds. If D has claim against second D. But D1 and D2 had contract between them. Want to sue in tort and contract. [Anshun] is authority. [Trawl Industries] . and then D1 sues D2 in a cross claim. Potential plaintiffs may lack standing. Bankrupts have to be represented by their trustee in bankruptcy (unless the matter refers to a personal cause of action). D2 would pay D1 for it. [Anshun] is not based on reasoning of [Henderson]. [Gomez] Held: HC said in [Anshun] that it was not relying on [Henderson]. And if P has 2 issues against D. There was also evidence of D1 flouting case management principles. . So D1 tried to sue D2 on basis of that contract. but law suggests they should join because of risk of penalty eg. Held: HC stated that D1 estopped from pursuing that contractual claim because the claim was so closely connected with the issues in the first claim that it was reasonable to expect that it should have been litigated then. a new trial might result in conflicting judgements.18 of UCPR. It was so closely connected with the subject matter of the action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun’ ‘The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account…By conflicting judgments we include judgments which are contradictory. but once they file an appearance. P can join more than 1 cause of action. for example.In 3 situations: 1) Where P sues in same capacity and where D is liable in same capacity eg.Suing under multiple claims.. [Henderson] Held: Dealt with estoppel on basis of abuse of process. 2) Multiple Causes of Action.However. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction’. it must appear that the same of substantially the same facts will arise for consideration in the second as in the first proceeding. scope of any pleadings. so should have been dealt with in the initial case. Pt6. . length and complexity of trial and other perceived difficulties. Employee went to Industrial Relations Commission for wrongful dismissal. but exception is [Rippon]. The first is that the cause of action must be one that could have been raised in the previous proceeding. as a matter of substance. Therefore.23 of UCPR. the cross-claim issues must not involve too many additional facts to those already involved in the earlier case. [Anshun] estoppel usually does not apply to outside parties. this action dealt with the same facts and same losses. Therefore.Held: P lost contract action (that is.Ct can order separate trials. there was a high risk of inconsistent verdicts. intimately connected with the issues in the previous case and arise substantially out of the same facts. Whether a party should be prevented from litigating an issue which would have been more appropriately included in earlier litigation is a discretionary decision. then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding. [Gibbs] Facts: Example where [Anshun] not applied. based upon the court’s view of the behaviour of the parties as between themselves and an assessment of whether it is reasonable to allow a party to occupy more court time. as it was inescapable that the purchasers were trying to re-litigate the identical issue. if joinder would embarrass/inconvenience/delay proceedings. However. and employee would have had to wait until case moved to Industrial Relations Court before second argument could be brought in. provided the cross-claim issues are. estopped.required to amend pleadings. Is it reasonable to defer the later claim? If yes. [Anshun] extended in this case to apply to litigants who were not parties to the original proceedings. Depends on particular circumstances. [Bryant] Held: The [Anshun] doctrine can also apply to stop a party litigating an issue which he or she should have raised by way of cross-claim in an earlier case between the same parties. Secondly. then sued for breach of contract later. There is at least one factor…which is indicative of unreasonableness in not asserting a cause of action in an earlier proceeding: if any judgment or order which might be made on the cause of action in the subsequent proceedings would conflict with a judgment or order in the earlier proceeding.character of previous proceedings. [Ling] Held: Further. Then tried to sue the accountants who had made the statements. The test is ultimately whether the failure to litigate the relevant issues in the same case in the same court was unreasonable. Held: There are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. [Anshun] was not applied because the first matter went to IR Commission which only has jurisdiction for statutory probs. Anshun estoppel was upheld). [Anshun] does not apply. Held: The claims against the accountants were so relevant to the subject matter of the first action that it as unreasonable for the purchasers not to rely on them in that action. [Rippon] Facts: Purchasers of business sued vendors and won for breach of contract but lost misrepresentation claim. then tried to bring 2nd action for negligent mistatement. advantage for P to sue 2 Ds at once. . D3 and D4 were therefore entitled to an order for costs. That joinder had been made necessary.Court can still order separate trials if joinder would delay/embarrass/inconvenience. the P should bear the loss rather than the winning D. The courts usually reason that in such a case.time . The successful Ds argued that a Sanderson Order would be inappropriate because it was unsure if D1 would be able to pay the 4 Ds and the P. ‘such a result can obe avoided if the . because Ds blame each other and pick faults in each other’s cases.3) Multiple Parties (with one cause of action) a) The joining of multiple parties is more limited than joining multiple causes of action. and that the losing D can be blamed for having contributed to the P’s decision to sue them both. . TJ ordered that D1 and D2. . A Sanderson Order is more straightforward. b) Pt6. What happens in the case where there are two defendants?? S93 of CPB.19. by the refusal of D1 and D2 to admit liability. and where neither D1 nor D2 does anything to resolve the uncertainty.where P pays costs of successful D. but is usually avoided where it’s consequence might be that the winning D ends up being unable to collect the costs as ordered. In the case where the winning Ds are in risk of not being paid because the losing D was poor. At trial. because the losing D is too poor. because the evidence.where losing D pays winning D’s costs. . The option of bringing the cases separately would be more costly.cost at discretion of Court. but from whom? P. The effect of such an order is to relieve the P from the normal consequences of having lost a case as against one of the Ds. and they will therefore make a Bullock Order [Vucadinovic] [Smyth v McLeod] Facts: P sued 4 Ds. Therefore.Bullock Order. but was only successful against D1. however.23. Held: The Sanderson Order is to be preferred to the more circuitous Bullock Order. Two or more people can be joined as Ps or Ds in 2 situations: 1) When common Q of law or fact. D1 or D2? The trial Judge was satisfied that P had everthing that could have been reasonably expected to avoid joining D3 and D4. Why should you join? Ps are entitled to sue anyone they genuinely believe is liable to them. even if that belief subsequently turns out to have been unfounded. [Walker v Corporation] Facts: P sued 5 Ds. Pt6.ie that the losing party pays the winning party’s costs. the P is frequently compelled to sue both in the alternative. even though this does not necessarily mean the winning party will be paid the full costs of their own lawyer’s bills. but these included in cost paid by losing D. The order is made only where the P can show that it was reasonable to have sued both the winning and the losing D. 2) Leave from the Court. not P should pay the costs of D3 and D4. and the relief claimed relates to/arises out of the same transaction/series of transactions.Joinder rule. arguments and result of the case against D1 would not bind D2 in the second case. There is a common law discretion to order the losing defendant to pay the winning defendant’s costs. c) Costs orders We have seen that costs follow the event. P succeeded against D1 and D2. Where the P is unsure as to which of D1 and D3 should be sued. but not against D3 or D4. and could be tactically unwise.cost .Sanderson Order. 2 Ps had interests in one building. Many judges take an expansive interpretive approach to the rules.22 UCPR.See pt6.Pt6. because case management approach means Ct is expected to take a broad view of efficiency.Ct may order parties to be joined .19 Criteria for joining parties. there must have been some fault on the losing D’s part which induced the P to go after the winning D also. [Birtles] Dicta Facts: P sued multiple Ds. but then a Bullock Order was made against D1 and D2 to pay D3’s costs. and the criteria for addition was stricter). and sought to join his old solicitors to the list of Ds. [Marino v Esanda] . these Ds filed defences which stated that the statue of limitations period had expired. Held: ‘Transactions’ constitute an act the effect of which extends beyond the agent to other persons… In that sense. [Tyco Australia] Facts: Optus sued 3 Ds. 2 Ps had interests in a 2nd building.these cases show conservative approach still exists. Murphy J dissent: Believed in broad beneficial interpretations because of power of Ct to orde separate trials. . d) Joinder at the Time of Issue.is there a common Q of law or fact. [Bishhops v Bridgelands]. . It succeeded against D1 and D2. Held: If the position be that…failure to commence proceedings within two years is fatal to the P’s claim against them. Majority’s test is conservative. All 4 Ps joined action because D’s building interfered with their rights to light and air. However. [Payne v Young] Aus authority Facts: Payne and brothers operated different abbatoirs. Ratio: For the losing D’s to pay the winning D’s costs.‘there was no common participation in the inspection services which were performed. merging joinder and addition criteria if it is the P who is seeking to enlarge the number of parties to the case (common law used to maintain a sharp distinction btn joinder and addition. They sought declaration that State legislation regarding the inspection of carcasses and payment of fees unconstitutional. Held: HC held that the claims did not arise out of the same transaction. but addition happens if joining parties after SOC. the building of the premises may be regarded as a transaction. Test of transaction: ‘The act and/or subsequent events’. and that…this bar to his relief against the original Ds would entitle him to damages for negligence against the solicitors. In cases of [Marino v Esanda]. Optus was ordered to pay D3’s costs. the Bullock Order was overturned. but not D3. arising from same transaction/series of transactions? [Bendir] HoL Facts: D builder of a building.Joinder joins parties before SOC. r7 appears to me aptly worded to permit a joinder’. P then dropped his solicitors and brought new ones in. because ‘there is no evidence that their [D1 and D2’s] conduct influenced or induced Oputs or its legal advisers to continue its proceedings against D2’.order is expressed in terms which would enable recourse to be made to the P by the successful Ds in the event of a failure by the successful Ds…to recover costs from the unsuccessful D’. in the liability to pay the fees demanded or in the payments which were actually made’.narrow interpretation of ‘transaction’. On appeal. The transactions were peculiar to each individual. no relief was being claimed against them. f) Joinder by Leave . So if order can be made which directly affects a third party’s rights/liabilities. the money had in each case been invested in Estate Mortgage. practicality of joining (eg. Test: [Mining]. [Bishop v Bridgelands] Facts: A large number of investors had been led to believe that their dealer had places their deposits on secured loans with Estate Trust.Criteria for addition of parties (joining after SOC/originating process). since there was the same lender throughout.Facts: P had entered into two contracts governed by the consumer credit legislation. addition not ‘necessary’. Held: The players and coaches should have been joined. . In fact. [Bishop v Bridgelands] Held: Basic principles should be whatever course is most conducive to the just resolution of dispute. judge held that this would not entitle joinder as co-plaintiffs all other consumers who had entered into that form of credit transaction.22. However. .pt6.not sufficient for them to make up their own mind. When Estate Mortgage collapsed.Players and coachers would be affected by case because it would restrict who they would work for. . or whether the third party is a party to a contract. [Universal Music] Held: ‘the rules will be construed liberally so that a determination of related disputes is achieved’.Whether the persons’ rights/liabilities may be directly affected by the action. .these were standard form contracts. Therefore.Factors: fairness to partes. many Ps). they sued their dealer. differences in evidence.pt6.‘while the tax authorities had a a stake in the outcome. but towards the end of the trial.Joining may occur before or after SOC. the third party should be joined. with no security.pt6. nevertheless the relief each borrower would be seeking would be in relation only to their individual contracts. they sent out notices to the players and coaches to get legal advice over intervening in proceedings. Though the contracts might be called a ‘series’ from the lender’s perspective. 1 lawyers. The ARFL did not join players or coaches. Narrow approach taken.19(4). and there was nothing they could say which would not be said by one side or the other in the action as currently consistuted. [Cheque] . e) Criteria of Addition . unfair on D to face large number of claims in single proceedings. they were making no claim to ownership of shares. the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. with regard to limiting costs and delay.Joining on basis of leave. [News v ARFL]/[‘Superleague case’] Facts: News prevented from employing players and coaches.you can join a party that is necessary to the determination of all matters in dispute.Court concluded that there was no unfairness. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties. [Vandervell Trustees] HoL Held: Court refused to add a party.19(3) UCPR. but held that they had no right to join as co-plaintiffs because their claims for relief arose from similar but separate transactions. Judge was willing to allow them to join as coplaintiffs under the Ct’s discretionary power to give leave (see below). and would be very onerous for 1 respondent if all claims were heard together.Court spoke of case management to alleviate hardship.Also.d be unfair to some Ps who had invested in all 19 schemes. because no practical advantage of joining. .1 Civil Procedure Bill 2005 . 193 Plaintiffs. there were pleading deficiencies [Newman] Facts: All P’s retained a company for investment advice. and 504 claims. 2nd proceedings had 169 Ps suing D3 and D4. Court held that it was not sensible for individual Ps to bring claims separately.Better to have 2 joint proceedings. CLASS 4. Held: Leave refused for some but granted for some. but held it woul.1st had 61 Ps suing first and second Ds in relation to 5 schemes. They invested in 1 or more of the 19 schemes in reliance of advice. Looked at alternative of 1 proceedings per scheme. . . D5 was sued only by 3 Ds in relation to 2 schemes.Held: Leave refused. s93 Courts powers as to costs (1). and claims the defendant to be liable in the same capacity. (3) A person against whom a defendant makes a claim for relief under this section: (a) has the same rights in respect of his or her defence against the claim as he or she would have in separate proceedings commenced against the person by the defendant. or arises out of.Subject to subsection (2). or administrator of the estate of a deceased person. (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a deceased person. in respect of one or more causes of action.18 Joinder of causes of action (1). the same transaction or series of transactions. Pt6.Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court. Uniform Civil Procedure Rules. and (b) if not already a party to the first proceedings: (i) becomes a party to the first proceedings. and (b) the relief claimed in the proceedings relates to. and (b) the relief claimed in the proceedings relates to. the court may grant to the defendant in any proceedings (the first proceedings) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose. and (c) if the plaintiff claims the defendant to be liable: (i) in his or her capacity as executor of the will of a deceased person. and (c) the court may order that costs are to awarded on a party/party basis or on an indemnity basis. and (ii) unless the court otherwise orders. in respect of each cause of action. (2) Leave under subrule (1) may be granted before or after the originating process is filed. is bound by any judgment (including a judgment by consent or default) or decision (including a decision by consent) on any claim for relief in the originating process and any other claim for relief in the proceedings. in respect of one or more of the causes of action. to whom and to what extent costs are to be paid. or administrator of the estate of a deceased person.An originating process may allege more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity. Pt6.19 Proceedings involving common questions of law or fact (1) Two or more persons may be joined as plaintiffs in the same proceedings if: (a) separate proceedings by each of them against the defendants in the proceedings would give rise to a common question of law or fact. (2) Two or more persons may be joined as defendants in the same proceedings if: (a) separate proceedings against each of them by the plaintiffs in the proceedings would give rise to a common question of law or fact. or arises out of. and in relation to the estate of the same deceased person. and (b) the court has full pwer to determine by whom. . and (ii) in his or her personal capacity. in respect of the remaining causes of action. (d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings. the same transaction or series of transactions.s22 Defendant’s right to cross-claim (1). Speak of . or (c) that for some other reason it is desirable to make an order under this rule. pt 6. but only with the leave of the court (4) Leave under subrule (3) may be granted before or after the originating process is filed.25 Effect of misjoinder or non-joinder of parties .A person who is not a party may apply to the court to be joined as a party. in relation to that person. the court may order those proceedings to be consolidated.If the Court considers that the joinder of parties or causes of action in any proceedings may embarrass. pt6. the date of commencement of the proceedings.If the Court considers that a person ought to be joined as a party or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings. or (b) that the rights to relief claimed in them are in respect of. pt6. pt28.If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question.If the court orders that a person be joined as a party.28 Date of commencement of proceedings in relation to parties joined .this is when you sue 1 defendant in several causes of action eg. or (b) may make such other order as it thinks fit. Flowchart 1) Multiple causes of action.5 Consolidation and linking of proceedings . the same transaction or series of transactions. . or to be tried at the same time or one immediately after another.Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings. Pt6. or may order any of them to be stayed until after the determination of any other of them. either as a plaintiff or defendant.A person is not to be joined as a plaintiff in any proceedings except with his or her consent. or arise out of. pt6. tort and contract.27 Joinder on application of third party .(3) Two or more persons may be joined as plaintiffs or defendants in the same proceedings in circumstances other than those referred to in subrule (1) or (2).26 Joinder as plaintiff requires party’s consent . the court may order that the person be joined as a party.22 Court may join party if joinder proper or necessary . inconvenience or delay the conduct of the proceedings. the court: (a) may order separate trials for any of those causes of action or parties. is taken to be the date on which the order is made or such later date as the court may specify in the order. Pt6.23 Court may order separate trials if joinder of party of cause of action inconvenient . 28. try for leave of court. Court can still order separate trialssee s56 Other provisions may be applicable.(1) Test for joining: 3 ways .Test for transaction [Payne].3 cases for leave .[Newman] Even if test satisfied or leave given.pt6. [Payne] was followed in [Marino] and [Bishop] .pt6.suing more than 1 defendant or 1 plaintiff before Statement of Claim.Leave of Court.[Cheque] .25.pt6.s56.6. 3) Addition.26.Common question of law or fact .If not satisfied.same transaction/series of transactions .P sues in executor/personal capacity .[Bishop] . try for leave of Court .Date of start of proceedings is date of ordering joinder (can’t outflank the limitation period).pt6.Need P’s consent for joining .Don’t speak of [Bendir] etc because not binding.Apply law to facts . risk of Anshun estoppel. Speak on those cases especially [Gibbs] 2) Joinder of Party.[Newman] .bring in s56 (overriding purpose of rules) Then if test satisfied and parties don’t join.22 .[Bishop] .Court can order separate trials. 27.Joining of Parties after Originating Process 2 alternative Tests for addition: 1) Ought to be joined [Superleague] or 2) Necessary to be joined.Even if don’t join.suing in same capacity . Test for joining .If test not satisfied. Class 5 . those proceedings are not defeated (Anshun estoppel does not apply) .A non-party may advise to join .[Cheque] . and can choose to opt-in if they wish. very few class actions in Australia (you had to have separate proceedings). gives Ct the power to allow class actions.In Australia. NSW Ct provisions don’t have provisions for complaints of class members. 3) Representative Proceedings (class actions in Fed Ct) .At Court of Appeal. This ‘same interest’ test is applicable to tort and contract.6 in UCPR.OVERRULED Facts: A ship carrying cargo sunk by Russian warship. Brennan J in [Carnie] stated a need for judicial involvement to minimise this. [Arakella] Facts: Case about importance of the role of the representative in proceedings. He ordered opt-in because Carnies could not afford to notify all the plaintiffs. class actions usually in Fed Ct. . stated no class action because provisions could not deal with it. so more class actions.Supreme Court Representative Proceedings. Problems: With so many members of a class. . In pt7.Federal Court . Until 1992.rules for class action proceedings. unlike Fed Ct.But at High Court. and Esanda had made deal with Ps if they opted out. 2) Case Law [Markt]. just because there were different contracts did not mean there were no common interests. because they all had separate contracts. their interests still needed to be considered and proceedings conducted to take care of those interests. [Shepherd] Held: Bryson J disagreed with Young J and liked opt-out. costs usually lie where they fall.But now. Fed Ct provisions much more sophisticated than those in Supreme Court.Therefore. in Part 4A (Federal Court Act) and Pt7. Opt-out. .all potential plaintiffs are in proceedings unless they opt-out Opt-in.6(2).Representative Actions and Representative Proceedings 1) Introduction Representative Actions. . Ct emphasised that though members of the class were absent. Federal Court rules also stipulate opt-out. In US. held there could be one because all borrowers had the same interest in the proceedings. no excuse for Supreme Court to say the provision was not specific enough. Young J decided on an opt-in procedure. many do not have their interests represented adequately.Toohey J’s test: ‘a significant question common to all the members of the class’. [Carnie v Esanda] Held: . Stated also that class actions not allowed for actions claiming damages.all potential plaintiffs notified of proceedings. But class actions are usually ‘on spec’ (only pay if you win). lawyers can get percentage of winnings however. Also. Held: That owners of cargo did not have common interests.Mason J stated the test as ‘whether the class members have a significant common interest in the resolution of any question of law or fact arising in the relvevant proceedings’. . Therefore. .Part IVA of Fed Ct. [Bright] Facts: 2 groups of women had sterilisation procedure. 33K.Costs 33T. and notified of right to opt-out. or arise out of.Court can hear any complaints from group members.situtation where Ct orders representative proceedings to stop being representative [Bright] [Wong] [Phillip Morris] 33E. Costs follow the event. 33ZJ(2). meaning if they lost. Ct said too early to decide. Finkelstein J: Representative actions promotes efficient use of Ct time and parties’ resources. Also gives remedy to people without funds. NOT any member of the group. 33X.On receipt of that notice they may opt-out and retain their private rights (33J).Group A got pregnant. Group B had 2nd sterilisation to prevent pregnancy. and prevents Ds from more suits and inconsistent findings. .but must be notified.class action on behalf of those with similar contracts. .Groups may be redefined 33Q+R. Full Ct: No common issue .The application must describe/identify group members. On 33N.if less than 7. principal applicant must pay winners costs. and after this time.Settlement Settlements need Court approval (33V) and the Ct can make aggregate settlement and group members then claim their share (33ZA(5)) Court specifies time when group members can make claim.33C a) 7 or more persons (with claims against same person) b) the claims must be in respect of.Form of notice and how it can be given (on TV ads etc. similar.don’t need consent of group members to be part of proceedings. or related circumstances c) the claims of all ther persons must give rise to substantial common issues of law/fact 33L. may still continue 33N. unless there was a separate agreement between PA and group members (to contribute to costs).When representative proceedings. same.Respondents wanted separate proceedings on 1) 33C. Only principal applicant liable for costs.no common basis of law or fact 2) 33N. There is no penalty. but some group members may assume conduct of proceedings if there are individual issues.more efficient On 1). [Wong] Facts: Applicant claimed D engaged in misleading conduct in relation to sale of lots in buildings. $ to principal applicant. go to Fed Ct. 33X+Y. specify nature of claim and common Q of law or fact. .The principal applicant conducts the case. no requirement to be personally served).when notice is required 33Y. unlike with group proceedings. no evidence and it would be more onerous to have more trials.How cases are run 33H. Respondents said to satisfy 33C. However. . or if class members are using case as a tool of repression (class actions scare defendants).that provisions should not be read down. but with joinder. Main different between representative actions and joinder.PA reps each member in a class. . not a binding judgment.5. . all parties are parties to proceedings. Class actions are usually bigger (Fed Ct <7.for grouping separate cases ‘Amicus curiae’. NSW no limit). Ct can order members of class to give security for costs.it was necessary for each member to have a claim against every respondent. [Phillip Morris] AUTHORITY Facts: Smokers v Tobacco Co.HC: stated a broad approach was necessary. [Brian Alexander] Held: Followed [Phillip] [Bray] also discusses security for costs. [Bray] Dicta Held: Ct distinguished from [Phillip] ratio. don’t delegate to a representative party. Ct can order class action if a great number of ppl want to join.‘friend of court’.Cts can do this if PA may not be able to pay. Pt28. Held: Ct stated that ‘all applicants had to have claim against all the repondents’. you may be asked to give security in case you have to pay the D’s costs in case of a loss. Allowed parties to replead so as not to prejudice case.What is security? If you believe that your class action may fail.but rather directed to the issues which are real or largely of substance. Ct concluded that ‘substantial’ (in 33C(1)) does not indicate large or special significance or would have a major impact on litigation. or may order any of them to be stayed until after the determination of any other of them.An order that appoints a person who is not a party to the proceedings has the effect of joining the person as a defendant. by an order under rule 7. or (ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members. or (c) that for some other reason it is desirable to make an order under this rule.Unless the court orders otherwise.In any proceedings against a number of such persons.A judgment or order made in proceedings in which a party has. the same transaction or series of transactions.1 Uniform Civil Procedure Rules pt7. . (2) A representative proceeding may be commenced: (b) whether or not the proceeding: (i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members. or to be tried at the same time or one immediately after another.7 Judgments and orders bind represented persons in proceedings generally (1). but is not eforceable against any of those person who is not a party except by leave of the court. where: (a) 7 or more persons have claims against the same person. the plaintiff may apply to the court for an order apointing one or more of those persons (whether or not party to the proceedings) to represent any one or more of them (4). a proceeding may be commenced by one or more of those persons as representing some or all of them.CLASS 5.This rule applies to any matter in which numerous persons have the same interest of same liability (2). pt28. or arise out of. and (b) the claims of all those persons are in respect of. the same.If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question. been appointed to represent a number of persons binds all of those persons. similar or related circumstances. and (c) the claims of all those persons give rise to a substantial common issue of law or fact. of (b) that the rights to relief claimed in them are in respect of. Federal Court Act IVA This provision confers a special jurisdiction to govern representative proceedings.Part IVA applies only to causes of action accruing since March 1992 33C(1) Subject to this Part. proceedings with respect to such a matter may may be commenced and carried on by or against any such person as representing any one or more of them.5 Consolidation and linking of proceedings . pt7. 33B.6 Representation of concurrent interests (1).6(3). (3). the court may order those proceedings to be consolidated. or arise out of. 33L The court has a discretion whether to stop the representative nature of the proceedings where the group’s membership has fallen below 7. and (c) specify the questions of law or fact common the the claims of the group members. (2) A group member may opt out of the representative proceeding by written notice given under the Rules of Court before the date so fixed. 33Y(2) The form and content of a notice must be as approved by the Court. or a document filed in support of such an application must. (6) Notice under this section must be given as soon as practicable after the happening of the event to which the notice relates. being the date fixed under subsection 33J(1) (4) Unless the Court is satisfied that it is just to do so. and (b) specify the nature of the claims made on behalf of the group members and the relief claimed. 33V Settlements for the group need Court approval. the representative party or the respondent in the proceeding. 33N(1) The Court may. on the application of a group member. 33H(1) An application commencing a representative proceeding. or (d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.33D The representative party has standing to sue for the group members. in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceedings relates. 33E(1) The consent of a person to be a group member in a representative proceedings is not required unless subsection (2) applies to that person. an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members. 33Q and 33R The principal applicant conducts the case. 33X(1) Notice must be given to group members of the following matters in relation to a representative proceeding (a) the commencement of the proceedings and the right of the group members to opt out of the proceeding before a specified date. . even if he or she has reached an individual settlement. 33J(1) The Court must fix a date before which a group member may opt out of a representative proceedings. (3) The Court. but some group members may assume conduct of proceedings if there are individual issues. or (b) all the relief sought can be obtained by means of a proceeding other than a representative proceedings under this Part. 33K The group can be redefined. may fix another date so as to extend the period during which a group member may opt out of the representative proceeding. on application by the respondent or of its own motion. order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because: (a) the costs that would be incurred if the proceedings were to continue as a representative proceeding are likely to exceed the casts that would be incurred if each group member conducted a separate proceeding. and it can be enlarged to add members whose causes of action arose after commencement of the representative proceedings. 33T Court can hear any complaints from group members. 33W The representative party needs leave to settle his/her own case and following that a new representative would probably be chosen. or (c) the representative proceeding will not provide an effiecient and effective means of dealing with the claims of group members. s43(1A). time does not run against that person under any limitations legislation. or a judgment given. in a proceeding. 33ZC and 33ZD Group appeals from trial judgments are possible. the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded. raido or television broadcast. on an application under this section. 33ZE So long as a person belongs to a group which is represented in court. . or by any other means.Class members (but not their representatives) are immune from adverse costs orders.(3) The Court must. specify: (a) who is to give the notice. 33ZJ(2) If. and (b) the way in which the notice is to be given (4) An order under subsection (3) may require that notice by given by means of press advertisement. the Court is satisfied that the costs reasonably incurred in relation to the representative proceeding by the person making the application are likely to exceed the costs recoverable by the person from the respondent. (8) The failure of a group member to receive or respond to a notice does not affect a step taken. an order made. by order. 33ZA(5) The Court can make an aggregate settlement and the group members then claim their share. The bank did not intend trial. but not to the bank.3rd doc is a reply from P to D.Can’t have joinder of issue if failure to apply to SOC. but because of case management.5 . and all 3 Ds pleaded that there were out of time. it means D admits it (pt14. Ratio: Relief is confined to what is available on the pleadings. 2) Key Characteristics of Pleadings. trend to Cts taking greater role in terms of pleadings.Allows parties to prepare for trial. P has discretion to send this document. . . .Class 6 Pleadings 1) Introduction Pleadings are written statements between parties to dispute and they define the parameters of the trial. . 3) Objectives .pt14. which is used to prove material facts. you need Ct to allow more docs. that’s all.pt14.The parties. Defence is 28 days after SOC served.If leave is granted: .There is an incentive to respond to a SOC.Surrebuttal (P writes) 2) The incentive to respond: . which are details of pleadings/material facts and different from evidence. reflection of adversarial system.pt14.Importance of accurate pleadings and need for judicial scrutiny: [Truth about Motorways] Held: Ct spoke about objective of pleadings. it is deemed to be denied. Relied on [Commerical Banque].25).Usually.3).4.But if P does not reply to a defence. He also criticised parties. Who creates pleadings? . and the need to avoid trial by ambush. distinction between pleadings and particulars is blurred. Unrepresented parties usually can’t tell the difference. saying it was only a pleadings error. unless D’s defence included a counter-claim.Surrejoinder (P writes) .to state with sufficient clarity the case that must be met.26(2).Rebuttal (D writes) .Gives Ct notice and allows judge to prepare.12) . . . . 1) Their alternating character (each party takes turns) .pt14.Rejoinder (D writes) . Dawson J disagreed. . which must be answered with a defence.2nd doc is defendant’s defence and sometimes a counter-claim (pt14.1st doc is SOC (pt6.26(4). . [Commercial Banque] Facts: Akhil sued the bank and 2 others.Pleadings are different from particulars. A joinder of issue operates as a denial of all allegations made in a pleading. because if no defence.Sometimes. So A sent letter to 2 Ds alleging fraud.Forms a permanent record of nature and parameters of the case. . included matters beyond specified date. Mason CJ and Gaudron JJ: • Pleadings is used to state with sufficient clarity the case that must be met…it is to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and. There it ordered the claimed to be struck out and quashing the claim. In Exam. A fails to submit a reply the defence claiming the Fraudulent breach of trust to the bank. In its defence. choosing the ‘do not admit’ response. Ct held that SOC had to be read as a whole. Ct should intervene if parties do not identify what is in the dispute. statement about issues for dispute. A asked for particulars of ‘do not admit’ response. and R was ordered to provide particulars.these comments.prior to Status conference pt11B. see Practice Note 120. Consequences of bad pleadings: . The defence lodged was a 6 year time bar. and on trial the bank did not attend trial. [Holden] Ct: Did not order further particulars to be given but said if not given. incidentally to define the issues for the decisions. [Fieldturf] Facts: A sued R for infringement of patent.} Practice Note 120 pt8. Appeal against trial verdict because of violation of Corporations Act. A should only be entitled to such relief as was available on the pleadings. and if done correctly.properly defined issues pt17. [Adler v ASIC] Facts: Collapse of HIH.prior to hearing. approved in [Holden] but slightly different results. The court at first instance failed A’s claim in that they had failed to prove interest of the share. R did not specifically deny the allegations. therefore it would do prejudice to BC if fraud was found. • • Bank not having been present at the hearing. there could be no acquiescence by it in such course… thus bank does not have knowledge of the fraud. BC appealed to the high court.need for parties to be on equal footing. D may not be able to give evidence to support their denial Ratio: 1) Need for clear pleadings 2) Ct reached a slightly different decision than that in [Fieldturf]. in which the limitations Act would veto the claim of the plaintiffs unless fraud was proven. highly favourable of case management.{Facts: A sues BC a breach of trust by enabling to sell the shares without the authority of A. Ct: important to identify subject matter of dispute. Held: Since the allegation were not made against BC in the pleadings. . if asked to look at common law provision. On appeal the decision was reversed in addition it had found fraud against BC. but possible penalty for D 3) Different Cts. different judges and lists. TJ: had ruled outside of ASIC’s pleadings. interests. 1st paragraph Intro Next paragraph are material facts Last paragraph.2.breached .D’s narrative of facts.p108-9.brevity Material facts pt14. . costs.7 . .breach .existence .paragraphs pt14.8.6. [Fieldturf] can be used as precedent to avoid trial by ambush [Holden] endorsed [Fieldturf] [Bright v Samson] Facts: P injured self at D’s skating risk. DCM should contain narrative of facts P plans to prove on liability .14 – requirement to plead specifically any matter which would otherwise take the other party by surprise. This lack of plea was likely to take P by surprise.3 deals with D’s DCM doc. damages.no test on drafting SOCs . . Supp materials p110. Practice Note 120 .pt14. Exam. pleadings need to be verified. these are incorrect examples. .At 1.terms . Evidence is not a material fact.Each element that a party has to prove to make out their claim or defence.duty of care .damages Contract . .How to decide what is a material facts: Negligence . . D’s defence did not include the plea that the rink had put up an exemption clause at it’s entrance.1.7.Form of pleadings pt14. In Appendix of PN.‘prayer of relief’ sets out claim eg.21-23 4) Rules of pleadings.Ct can dispose of defences or order parties to discontinue pleadings if unnecessary. .3.21-23 requires certain matters to be verified.pt14. Held: Precedent for pleading specifically to avoid surprise.Para 5.At 2.1) Can’t get the relief you want 2) Ct may give you leave to amend or the pleadings may be struck out.Parties need to fill out DCM docs.damages Each paragraph should address a material fact. shows what pleadings must contain.Not a particular and not a conclusion of law .In some cases.1. Pt14.pt 14.material facts pt14. 1(3) amendments in relation to causes of action pt19.D can then amend defence within 14 days of service of SOC When does Ct grant leave to amend? Looks at: . should have allowed amendment of pleadings and ajournement. Pt15. but emotional cost [Etna] [Leotta] Facts: The deceased fell from a train.9 3) When defective particulars emerge at trial. rare to allow this because of case management. no onus to respond to them.9 particulars may be delivered separately pt15.s56 and s59. 2) Particulars can be provided in another document – pt15.2(2).2. At trial. With particulars. but particulars is to specify issues and allow other parties to understant the case to be met and avoid surprise.2-8 particulars required in different matters pt15.prejudice to other party . pt15.1 particulars must identify the issues which parties must meet. 5) Particulars These are the details of material facts which limit evidence which may be introduced at trial.1 Pt19.1(2).influenced by what is just . and that the guard might have been negligent. saying that it was not a different cause of action and material facts showed that D had acted negligently (liberal construction). [Beach Petroleum] Held: Moden approach is to allow particulars to fix defective peladings. P invited jury to consider a different version of events (ie guard.doesn’t always required ajournement [Leotta] and [Dare] 7) Amending Pleadings Ct allows amendment at any stage in proceedings. In other words.2(1).Ct: argument not allowed.Ct held that distinction btn facts and pleadings has become obscure. ‘If in the cause of action upon which the plaintiff sued there .amendments should be made for defining real issues and correcting error and avoiding multiple proceedings pt 19.amending a statement of claim pt 19. Why do Cts allow this? 1) Quicker and easier to fix. Amending pleadings equals amending the defence. not PTC was negligent).SOC may be amended only once within 28 days with Ct leave pt19. These were the old rules. If in common law division of Supreme Court. P sued the Public Transport Commission for negligence becauese P alleged train started as deceased started to board. . its not always fatal.pt19. evidence showed that train might have been moving as the deceased was boarding. 6) Purpose of Particulars [Pilato] Ct: held purpose of pleadings is to defined issues in general terms.both have been melded together.efficiency and avoidance of costs and delay.11 paticulars for personal injury matters.not just monetary. HC: Upheld decision for P. and they did not understand.Sending notes to other side to admit uncontested things and narrow the dispute. After change of lawyer.27. HC: individual justice is dominant criteria. Held that P could take higher amount of money. [Rigato] Facts: D failed to respond to notice to admit. .liberal approach. [Dave] Held: Evidence at trial justified higher amount of damages then than estimated in particulars.how to serve notice to admit facts.had emerged at the conclusion of the evidence facts which. This case is authority for allowing amendments and if there is tension between efficiency and substantive rights. Pt17. Leave to withdraw was refused. Pt17.no reply meant it was taken as admitted.If there are bad pleadings. But in [Asler]. Similar outcome in [Jeans] (because ppl knew what they were doing). then it was the duty of the trial judge to leave the issue of negligence to the jury’. See also rule 3 and rule 6. can argue that pleadings be struck out if no reasonable cause of action etc. Very very important case! Look at s56 and s59 of CPB. leave granted because parties were unrepresented. established that cause of action. the party wanted to withdraw those admissions. if accepted. 8) Challenging Pleadings pt14. 9) Formal Admissions . [Cth Securities] Narrow approach [QLD v JL Holdings] Held: This is the case precedent for amendments.2.3. be put in a separate paragraph.7 Pleadings to contain facts. a party may not take any step in proceedings unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.If any documents or spoken words are referred to in pleading: (a) the effect of the document or spoken words must.If a pleading alleges or otherwise deals with several matters: (a) the pleading must be divided into paragraphs.9 References in pleadings to documents and spoken words .8 Pleadings to be brief . (1). and not the evidence by which those facts are to be proved. not evidence Subject to this part.A pleading must be as brief as the nature of the case allows.Subject to these rules. or (b) for any other reason the proceedings may properly be tried without further pleadings. Part 6 and Part 15.10 Certain facts need not be pleaded . be stated.1 No step without originating process or notice of appearance. pt14. so far as convenient. pt14. the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim to which the defence relates. pt14. (2).Except by leave of the court. and (b) the precise terms of the document or spoken words must not be stated.5 Further pleadings (1). pt14. so far as material. pt14. a party’s pleading must contain only a summary of the material facts on which the party relies. and (c) the paragraphs must be numbered consecutively. pt14. pt14.A party need not plead a fact if: (a) the fact is presumed by law to be true. pt14. (3).2 Trial without further pleadings (1).3 Defence (1).In proceedings in the Supreme Court or the District Court.If in the opinion of the court: (a) the issues between the parties can be defined without further pleadings. pt14. except so far as those terms are themselves material. the court may order that the proceedings be so tried.6 Pleadings to be divided into paragraphs .1 Uniform Civil Procedure Rules pt 6. . and (b) each matter must.4 Reply (1).The time limited for a party to seek leave to file a pleading subsequent to a reply (the futher pleading) is 14 days after service on the party of the pleading to which further pleading responds.Except by leave of the court. a plaintiff may file a reply to a defence. a party to proceedings may not file any pleading subsequent to the reply. or (b) the burden or disproving the fact lies on the opposite party.The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff.CLASS 6. pt14. may take the defendant by surprise.22 Verification of certain pleadings (2). (2) Subrule (1) does not affect the right of a party to make allegations of fact.14 General rule as to matters to be pleaded specifically (1) In a statement of claim. a party may apply to the court for a direction that the party pleading verify or further verify the pleading and for such other directions as may be appropriate.Within 14 days after service of an affidavit under rule 14. pt14. false imprisonment.22 in relation to a pleading. that after reasonably inquiry the deponent does not know whether or not the allegations are true. pt14.The affidavit verifying a pleading must state: (a) as to any allegations of fact in the pleading. pt14. However. malicious prosecution. the opposite party traverses the allegation. or (c) that raises matters of fact not arising out of the preceding matters. that the deponent believes that the allegations are untrue. pt14.A pleading may raise any point of law.21 Pleadings in proceedings for defamation.An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless: (a) in the pleading in response. pt14.19 Pleadings may raise points of law .A defendant who relies on contributory negligence must plead specifically the contributory negligence.18 Pleadings to be consistent as to allegations of fact (1) A party must not in any pleading make an allegation of fact. may take the opposite party by surprise. inconsistent with any of his or her previous pleadings. (3). pt14. (2) In a defence or subsequent pleading.26 operates as a denial of the allegation. if not pleaded specifically.17 New matter may be raised in pleading . . and (b) as to any allegations of fact that the pleading denies. the plaintiff must plead specifically any matter that. death and personal injury This Division does not apply to proceedings for the damages for the above wrongs.16 Defendant’s pleading of contributory negligence .A party may plead any matter even if the matter has arisen after the commencement of the proceedings. and (c) as to any allegations of fact that the pleading does not admit. pt14. or (b) a joinder of issues under rule 14.23 Court may order pleadings to be further verified (1).except so far as may be necessary to meet a specific denial of that fact by another party’s pleading. (2) states the Court may order that this Division is to apply to any or all pleadings in any such proceedings with such variations as the court may direct. a party must plead specifically any matter: (a) that. in the alternative. if not pleaded specifically. or raise grounds or claims. that the deponent believes that the allegations are true.25 Admission and traverse from pleadings (1). pt 14. or raise any ground or claim.A party’s pleading (including an amendment of the pleading) must be verified by affidavit. pt15.9 Manner of giving particulars .The particulars to be given by the pleading must be set out in the pleading or. or (c) is otherwise an abuse of the process of the court.2 Voluntary admissions of fact (1).The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise): (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission. a pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits the allegation.Applies to personal injury cases.SEE SEPARATE SHEET.If there is no answer by the opposite party to a reply or subsequent pleading.A traverse may be made by denial or by a statement of non-admission.Despite subrule (1).26 Joinder of issue (1).The admitting party may. (2). either expressly or by necessary implication.(2). or (b) has a tendency to case prejudice. there is an implied joinder of issue on that defence. pt15. and (b) if the party pleading alleges more than one negligent act or omission. (4). or being asked to admit. pt14. any matter: the requesting party means a party in whose favour another party is admitting. . must be set out in a separate document referred to in the pleading and filed with the pleading. must. a pleading must give such particulars of any claim. (3). (3). state separately the facts and circumstances on which the party relies in respect of each alleged negligence act or omission.5 Allegations of negligence and breach of statutory duty in common law (1). defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. if that is inconvenient. or being asked to admit. pt15. embarrassment or delay in the proceedings. so far as practicable.If there is no reply by a plaintiff to a defence.11 Particulars required for proceedings generally . any matter.27 Circumstances in which court may strike out pleadings (1). there is an implied joinder of issue on the reply or subsequent pleading.1 Definitions In this Part: the admitting party means a party who is admitting.1 Pleadings must give all necessary particulars . withdraw any such admission. on a statement of claim.There can be no joinder of issue. with the leave of the court. by a notice served on the requesting party.Subject to this Part. pt17. (2). pt15. admit specified facts in favour of the requesting party. pt14. pt17.A pleading may expressly join issue on a previous pleading.The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading.The admitting party may. and either generally or as to any particular allegation. express or implied. make one amendment to a statement of claim at any time within 28 days after the date on which the statement of claim was filed. (2). Practice Note 120 para5.1 Court may order documents to be amended (1) At any stage of proceedings.(1) In relation to any party. (2) All necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. pt17. may be required to be filed by that party.The requesting party may. (3) Where a defence or cross claim is filed in default proceedings the plaintiff must file the DCM document within one month after being served with an appointment for Status Conference and a defence and/or cross claim. (4) Each other party must file the DCM document not later than one month before the date of the Status Conference. the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim.2 Amendment of statement of claim (1) A plaintiff may. but not after a date has been fixed for trial.It is expected that the parties’ legal representatives will have discussed the case before the initial status conference and will have: a) narrowed issues. c) prepared a draft timetable for the future management of the proceedings. directions or arrangements. by a notice served on the requesting party within 14 days after service on the admitting party of the requesting party’s notice (the admitting party’s notice). (3). The form and content of the DCM document are explained in Appendix A. with the leave of the court. require the admitting party to admit specified facts. by a notice served on the admitting party (the requesting party’s notice). dispute any fact specified in the requesting party’s notice. d) prepared draft short minutes of any orders or directions to be sought at the status conference. para 8. or (b) that leave be granted to a party to amend any document in the proceedings. and . (3) An order under this rule may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings… pt19.The admitting party may. the DCM document refers to the document which. except by leave of the court.3 Notice to admit facts (1).6 Restricted effect of admission .Any fact specified in the requesting party’s notice that is not disputed by the admitting party’s notice is taken to be admitted by the admitting party in favour of the requesting party (4). withdraw any such admission. by virtue of this Practice Note. (2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence. and (b) is taken to have been made for the purposes of those proceedings only. correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. b) agreed on suitable interlocutory orders.An admission made under this Part in connection with any proceedings: (a) may not be used in those proceedings except in favour of the party in whose favour it was made.pt17. (2) A plaintiff must file the DCM document at the same time as filing the originating process. pt19. the court may order: (a) that any document in the proceedings be amended.The admitting party may. The tasks at a status conference include. If no defence (or defence to cross-claim) has been filed the Registrar may direct that there be judgment as to liability on that claim para17.e) discussed the possibility of settling the dispute by Alternative Dispute Resolution (ADR).1.1 The defendant’s DCM document is to contain:para 2. but are not limited to: b) defining the matters in issue.1 The plaintiff’s DCM document is to contain:para 1. para 2. para11. including contributory negligence. so drafted as to expose the specific matters of fact upon which liability is likely to depend.3 a concise narrative of the facts the plaintiff intends to prove on the issue of liability. concise.1. so drafted as to expose the specific matters of fact upon which liability is likely to depend. APPENDIX A para 1.The Court may direct all parties to complete and sign a clear. . including liability.3 a concise narrative of the facts the defendant intends to prove on the issue of liability. Each party is expected to bring to the Final Conference a draft of a suitable joint statement of the matters in dispute. joint statement of the specific matters of fact and of law that are really in dispute and nominating the evidence specifically relevant to those matters. and if appropriate an up to date schedule stipulating the components of damage referred to in paragraph 11(i). the defence is in a different area of law from the basis of the claim . but no mini-trials allowed. Positives of Summary Judgment .cost . then summary judgment ought not to be entered’.justice . For P. Conclusion: Summary judgment only if the case is bound to fail (not ‘likely’ to fail).CLASS 7 Summary Disposition 1) Introduction Most matters disposed of before trial. One way that this happens is through ADR. say. or bound to fail. after close analysis. abuse of process. Other ways include 1) Summary judgment. ‘While in an appropriate case the court might.pt13. eg.Rationale: Don’t want to waste parties’ time and money especially when full costs are rarely recoverable. 3) Default Judgment .1.a strict test.satisfied if facts fulfil claim and defence has no merit For D.there needed to be a full investigation.Evidence will be looked at. [Pico v Voss] Held: Summary judgment overturned because Ct talked of the transaction as being ‘suspicious’.4.it needs to be really obvious that the claim/defence can’t work. only in cases where.where cases with no merit are judged 2) Default judgment. where it appears that there is a real question to be tried. Very rare to see this. resolve a comples question of law. .rights of litigants to a full and fair hearing Courts generally take a very conservative approach. or claim has no merit. [Minson] Held: Summary judgment only available in a very clear case.only summary judgment if ‘no defence’ (not ‘no real defence’ etc).where no defence 3) Want of prosecution 4) Withdrawal or discontinuance 2) Purpose of summary Judgment To cut short proceedings where claim/defence has no merit or chance of success.time . NSW law is stricter than QLD’s. [Gray] Held: ‘No real prospect of success’= hopeless.pt13.relief if proceedings were vexatious. it remains the case that summary judgment will only be entered in a very clear case. either of law or fact.efficiency Balanced with . .promotes respect for Ct procedure . insurers had made incorrect file note that claim had been settled.If not complied with.applies to proceedings begun by SOC pt16.affidavit of service of SOC.when Ct orders a defense be struck out pt16. Who pays costs of having default judgment set aside? Discretion. prevents delay However. P obtained default judgment. [Westpac] Facts: Irregular default judgment. can strike out claims or defences. . but usually D. This can happen when the parties decide to settle (if D decides its defence is bad). Positives of Default judgment . Ct has the unconditional discretion to set aside default judgments. or P realises its claim has no merit. Therefore. sometimes there is a genuine reason why a defence has not been filed. If default judgment was irregular. eg served on wrong party.But because of case management and status conferences. Ct can order dismissal of P’s claim.If P does not prosecute proceedings with due despatch.talks of procedure for default judgment. Ps would usually get notice first. not appearance.it’s a fine line.expressed against defendants in personal capacity as well as trustee capacity.saves time. However. and P moves for an early judgment. Easy to get default judgment. then set aside. .Applies to cases where D gives no defence. If P discontinues close to trial. and D can withdraw defence.Cases about when default judgment was given.Ct can make directions as to conduct of proceedings.NSW only refers to default of defence. On appeal.definition of default pt16. but also easy to set it aside.decided defence had some merit. ss2. Ct looked to see if defence had merit.7.2(1). pt16.1.if D filed defence after time has lapsed but before Default judgment application has been made. Looked at [Dixon Homes] and considerations: 1) explanation for failure to appear 2) delay in application to set aside 3) D had strong defence . P may pay costs.2.3.this is sworn evidence that SOC served on ___ date.1 reason for default judgment is to enforce compilation with timetables. Employee sued. . but some merit. because it was D’s fault.The need to establish an arguable defence on the merits. .2(2). Pt12. pt16.when D is not in default. .no need for strong merit.Irregular because summons had not described them as being sued in capacity of trustees.Ct held TJ was wrong and retracted default judgment. [Cook] Facts: Workplace injury. then it might be different. s61 of CPB ss1. default judgments are easy to set aside.efficiency . 4) Discontinuance of Claims/Withdrawal of Defences P can choose to withdraw claims. 2.pt12.Effect of discontinuance does not preclude fresh proceedings etc. CLASS 7. [Siemon] Held: Judge ordered discontinuing P to pay costs to D on an indemnity basis. Ordered because orders sought were so wide as to bound to fail and no allegaion of wrong doing.1 . (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate (2). as the case requires. by order. (2).If a party to whom such a direction has been given fails to comply with the direction. in the belief of the person giving the evidence. (b) it may strike out or limit any claim made by a plaintiff. given by the plaintiff or by some responsible person.The court may.Without limiting subrule (1). or (b) no reasonable cause of action is disclosed. pt16. by order. pt12. the court may give judgment for the plaintiff for damages to be assessed.7 Dismissal of proceedings for want of prosecution If a plaintiff does not prosecute proceedings with due despatch.2 Discontinuance of claim by leave The Court may grant leave to a plaintiff to discontinue proceedings: (a) so far as they concern the whole of the plaintiff’s claim for relief. or no defence except as to the amount of any damages claimed. and (b) there is evidence.The court may receive evidence on the hearing of an application for an order under subrule (1). do any one or more of the following: (a) it may dismiss the proceedings. pt 13. (c) it may strike out any defence filed by a defendant. that. the court may.If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious. the court may give such judgment for the plaintiff. (2). or (b) so far as they concern a particular defendant.If. Uniform Civil Procedure Rules 2005 pt12. and give judgment accordingly. the defendant has no defence to the claim or part of the claim. or (c) the proceedings are an abuse of the process of the court. the court may order that the proceedings be dismissed or make such other order as the court thinks fit. on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based. whether generally. in relation to a particular cause of action or in relation to the whole or part of a particular claim. or make such order on the claim or that part of the claim. pt13.Civil Procedure Bill 2005 s61 Directions as to practice and procedure generally (1).1 Summary Judgment (1).4 Frivolous and vexatious proceedings (1). . do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings.1 Application of Part This Part applies to proceedings commenced by statement of claim. the court may order that the proceedings be dismissed generally or in relation to that claim. the plaintiff: (a) may apply for judgment to be entered under this Part. or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules. or (c) if. the court orders the defence to be struck out. . pt16.3 Procedure where defendant in default (1). but before the plaintiff has filed an application for default judgment. an application for judgment to be entered under this Part must be accompanied by: (a) an affidavit of service of the statement of claim (the affidavit of service).If a defendant is in default. (2).3(1) or within such further time as the court allows.Unless the court orders otherwise. a defendant is not in default if the defendant: (c) has filed a defence after the time limited by these rules or allowed by the court. and (b) an affidavit in support of the application (the affidavit in support).Despite subrule (1). against the defendant in default.A defendant is in default for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.pt16. and (b) may carry on the proceedings against any other party to the proceedings. (2). according to the nature of his or her claim for relief. the defendant having duly filed a defence.2 Definition of “in default” (1). is to ensure that parties and courts will have access to the information relevant to the dispute. .Object: to obtain relevant information that other side possesses. less then 14 days is unreasonable.what sort of documents can you ask for?.when a party is served with this notice. it seems that richer parties are more able to benefit from discovery. Also. ‘Reasonable time’= 14 days or longer (pt 21. 2) Notice to Produce . 1) Pt21.parties can specify time limits to produce documents.Pt21. affidavit … 2) any other documents clearly specified in notice and relevant to a fact in issue. .A short cut alternative to formal discovery.3.list is sent to the other side.No restriction on number of documents. they must (within reasonable time) produce the documents in their possession/custody/power or say who has it. Unlike formal discovery. a balance needs to be struck between access and controlling the scope and expense of the process. .2(2).much broader than in notice to produce.9(2) Pt 21. because of the added expense.reveal existence of documents to the other side. It is a document asking other side to produce certain documents. . .No Ct necessary for a ‘notice to produce’. .11(1). These access rules are.28 days to serve list required by order . It shows parties the strengths and weaknesses of their respective cases. no need for Ct’s permission to issue this notice. otherwise.This notice only applies between parties (not 3rd parties). Controls on Discovery: .apply to Ct for order pt21.classes of docs you can ask for (relevant to a fact in issue). Therefore. however. helps them to prepare for trial.CLASS 8 Discovery and Gathering Evidence I 1) Introduction The purpose of the rules which allow for pre-trial access to documents and information held by the other side.3 Part process 1) Go to Ct and apply for order for discovery 2) The other side is served with the order and hunts around for the documents and compiles a list of the relevant documents 3) Inspection stage. restricted by the rules of privilege.11(2)). and by criteria and scope restrictions designed to limit the time and cost of this pre-trial exercise. it’s a ‘reasonable time’.need to apply to the Court for it.you have the automatic right.10(2).10.No automatic right to discovery. .12.2(1).personal injury matters you can only ask for documents referred to in the pleadings/witness statements/affidavits. In other words. Pt21. 3) Discovery Courts don’t like discovery because of cost. pt21.any referred to in pleading. who may copy the documents or just look at them.pt21. witness statement.Pt21. and may also help parties make informed settlement offers. held TJ should have looked at the document before ordering discovery.To try to get any docs directly or indirectly relevant QLD approach.oppressive to order full discovery. but the definition of ‘possession’ also includes custody and power. and further discovery was to be contingent on the findings. pt21. Held: On appeal.also keeping documents in accessible condition and assisting photo copying. [Sony v Uni of Tasmania] Held: Discovery orders were made to allow P’s expert to have access to university back up files to retrieve deleted information.need to comply with Ct order.Within 21 days. Custody or Power. those which were created once proceedings were begun. pt21. because said confidentiality clause would make it ok. but Mobil resisted because of commercial sensitivity. What if discovery not complied with? s61 of CPB: Ct sanctions eg. DNA slide etc. e-mail. pt21. Cts will consider necessity. TJ allowed. discovery is not a right.3(1). Ct said discovery on 1st 2 issues. party must allow inspection.definition of excluded documents eg.full discovery should be allowed 2nd appeal.order of discovery only in special circumstances in these cases. [Commonwealth v Northern Land] Held: ‘enable the party to advance own case or damage opponent’s case’? Ct stated it was not allowed to ‘go fishing’. [Mobil Oil] Facts: Guina wanted documents from Mobil. 1st appeal. NSW rules refer only to ‘possession’.4. but goes to the Court. when it was clear that the full issue might not be reached.only directly relevant documents NSW approach.Extremely wide definition. Also. but because in NSW.8. the need to protect trade Rivals [Mobil].need sworn affidavit supporting documents and if there is a solicitor. pt21. See also [Grant v Marshall] 6) Possession.- pt21.5.somewhere between traditional and QLD.1(1). Tests include considering costs. 5) Definition of Document . [Ammerican] Held: Originally. contempt of Court.see [Microsoft] 4) The Necessity Control NSW rules don’t have this control spelt out. need a certificate from solicitor saying client has been advised of obligations.any record of information and includes a computer hard disk. commercial sensitivity. Traditional Approach . [Roux v ABC] Held: Gave definitions: Possession= lawful right to possession Custody= corporal possession Power= presently enforceable right to inspect document.personal injury. . Confidential information between lawyers and clients for the purpose of legal advice is privileged. [Baker v Campbell] Held: Rationale for privilege. . 7) Privilege.it depends on the degree of control.[Palmdale] Held: D lacked copies of income tax return but had enforceable right under FOI legislation and if D asked the tax authorities. lawyer-client etc. If documents privileged. But in [Citibank]. 3rd party communications also privileged if the dominant purpose was related to actual or anticipated ligitation [Esso]. then found that the interviewees had to report the interview to their employer. [Taylor v Santos] Facts: Master ordered Santos to disclose documents of sub-sub-subsidiary Held: Ct held documents in possession of subsubsubsidiary could not be gotten. Pt21.they were not in D’s power.5(2)(a). D had greater level of control. include in list and state basis for privilege eg. had to get the documents. [Fagan] Facts: Police sued employer for failing to provide a safe system of work. D was likely to get documents. Policeman’s lawyer interviewed other officers. Therefore.no need to produce privileged documents. Scope of legal privilege. Held: Legal professional privilege extends to communications between a 3rd party and the legal adviser (P’s/D’s lawyer).confidential information between lawyers and client if for the purpose of giving or receiving legal advice. The court may.3 List of documents to be prepared (1) Party B must comply with an order for discovery by serving on Party A a list of documents that deals with all of the documents referred to in the order. and (d) must identify any document that is claimed to be a privileged document. do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings. means any of the following documents: (a) any document filed in the proceedings. or (b) within such other period (whether more or less than 28 days) as the order may specify. (b) any document served on party A after the commencement of proceedings. by order. the court may.CLASS 8. (2) The list of documents: (c) must specify. (3).Subsection (2) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court. or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class.A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. by order. do any one or more of the following: (g) it may make such other order or give such other direction as it considers appropriate. (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate (2). . the person (if any) who party B believes to be in possession of the document or group of documents. against the description of each document or group in Part 2 of the list of documents.1 Definitions (1) In this Division: excluded document. Uniform Civil Procedure Rules 2005 pt21.1 Civil Procedure Bill 2005 s61 Directions as to practice and procedure generally (1). and specify the circumstances under which the privilege is claimed to arise.If a party to whom such a direction has been given fails to comply with the direction.2 Order for discovery (1). (c) any document that wholly came into existence after the commencement of the proceedings… pt21.The Court may order that party B must give discovery to Party A of: (a) documents within a class or classes specified in the order. pt21. (2). (3) Party B must comply with the requirements of subrule (1): (a) within 28 days after an order for discovery is made. in relation to proceedings the subject of an order for discovery. a document of thing is taken to be relevant to a fact in issue if it could. for special reasons. on request by party A: (a) produce for party A’s inspection the documents described in Part 1 of the list of documents (other than privileged documents). or (b) for contribution in respect of damages so arising.8 Personal injury claims .5 Documents to be made available (1). pt21. or contains material that could. or within such other period or at such other times as the court may specify.pt21. affidavit or witness statement filed or served by party B. and does on party A’s request.9 Definitions (2). (2).Within 21 days after service of the list of documents.Party B must ensure that the documents described in Part1 of the list of documents (other than privileged documents): (a) at the time the list of documents is served on party A and for a reasonable time thereafter. pt21.10 Notice to produce for inspection by parties (1). and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents. and (b) make available to party A a person who is able to. an order for discovery may not be made in relation to any document unless the court. and (d) provides photocopies of. orders otherwise.In any proceedings on a common law claim: (a) for damages arising out of the death of. (2). party B must. pt21. and (b) if party B has a solicitor. any person. such of the documents as are capable of being photocopied… pt21. rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness). within a reasonable time after being served with a notice to produce: .A notice to produce may specify a time for production of all or any of the documents or things required to be produced. or bodily injury to. pleading. are physically kept and arranged in way that makes the documents readily accessible.Party A may. by notice served on party B. pt21. party B must.4 Affidavit and certificate supporting list of documents (1) The list of documents must be accompanied by: (a) a supporting affidavit. regardless of whether the document or thing would be admissable in evidence.Unless the court orders otherwise.For the purposes of this Division. and (c) provides facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied. by a solicitor’s certificate of advice. require party B to produce for inspection by Party A: (a) any document or thing that is referred to in any originating process. and (b) at the time the list of documents is served on party A and until completion of the trial of the proceedings.11 Production under notice to produce (1). or facilities for the photocopying of. and capable of convenient inspection by party A. are identified in a way that enables particular documents to be readily retrieved. pt12. pleading. and (b) serve on party A. information or belief as to the existence or whereabouts of the document.(a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession. a party is not required to comply with a notice to produce in relation to a document of thing that has not been referred to in any originating process.12 Personal injury claims . a notice stating: (i) that the document is a privileged document. in the possession of a person identified in the notice. orders otherwise. or (ii) that the document is. and (b) unless party A establishes to the contrary. information and belief.In any proceedings on a common law claim: (a) for damages arising out of the death of. or (iii) that party B has no knowledge. . to the best of party B’s knowledge.For the purposes to subrule (1): (a) unless party B establishes to the contrary. (2). less than 14 days after service of the notice is to be taken to be less than a reasonable time. any person. or bodily injury to. 14 days or longer after service of the notice is taken to be a reasonable time. for special reasons. affidavit or witness statement filed or served by that party unless the court. or (b) for contribution in respect of damages so arising. in respect of any document that is not produced. CLASS 9 Discovery and Gathering Evidence II 1) Privileges against self-incrimination and exposure to a penalty or forfeiture Parties cannot be compelled to produce information that would tend to expose them to criminal penalty. when party A had previously mediated with party B. it perhaps can be said with a reasonable degree of confidence that confidentiality is likely to be preserved’.pt21. A confidentiality agreement was in place.11(b). the court will in an appropriate case made an order to that effect. [Microsoft] Ct: it was stated that ‘it would be the rare case in which the mere provision of a list of documents…would tend to expose a person to a criminal penalty’. the purpose of which is to restrict access to discovered information to designated persons or categories of persons. This privilege is not available to corporations. What is the rationale for restricting access to discovered documents? [Seven Network] Held: The problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information. 3) Confidential information Parties often agree to put in place confidentiality regimes. but the applicant later complained that some of the ppl who fitted within the category of permitted ppl were also officers of the second respondent. This case is also precedent for ‘without prejudice privilege’ in cases where party C. Public policy reasonswant to encourage full and frank disclosure. the undertakings and other circumstances. If the parties cannot agree. this means that parties need not produce any document for inspection. ‘Whether it is right to say that inspection of documents by a trade rival necessarily destroys confidentiality once and for all will depend on the particular circumstances of the case…On other occasions. In NSW. or answer any interrogatory that would tend to incriminate them. . who wasn’t a party to the mediation. solicitor has to certify that s/he is unaware of any omissions. [Mercantile] Held: ‘Compromise negotiations are typically conducted against a background of a shared expectation that communications incidental to the process will not be disclosed without consent’. In discovery. the party must make all reasonable inquiries and searches. Before making the affidavit.4.pt21. The court agreed to vary the consent order. seeks to inspect the mediation documents of party A. 2) ‘Without prejudice’ communications This rule states that oral and written communications are protected by privilege if they are made in a genuine attempt to settle a dispute. depending on the nature of the confidential information. [Photocure] Facts: Parties involved in patent litigation. 4) The Duty to Inquire and continuing discovery The solicitor of the party giving discovery has to explain the importance of the exercise and the gravity of making a false affidavit. [Re McGorm] Held: It was insufficient for a bankrupt to say that the could not list the documents because his trustee had them all. He had first to make reasonable inquiry of his trustee. If a document is overlooked, a supplementary affidavit should be filed, and a solicitor should refuse to continue acting if his/her client refuses to submit this affidavit. The duty to correct applies in cases when the affidavit was wrong at the time it was made, or where a party failed to disclose a document through mistake or lack of knowledge. For documents which are subsequently found, see pt21.6. The party must give written notice to the other side and make the document available as per normal discovery. 5) False affidavits Makers of false affidavits risk a perjury charge, or the charge of contempt of court. The court also has power to exclude evidence or give judgment to the wronged side. Depends on the seriousness of the breach. 6) Discovery against non-parties. This is when party A wants to sue someone, but isn’t sure of the identity of the prospective defendant. See pt5.2. Steps for ascertaining a prospective D’s identity or whereabouts: 1) pt5.2(1)(a)- Applicant makes reasonable inquiries, but cannot find D’s identity or whereabouts for the purpose of commencing proceedings and 2) pt5.2(1)(b)- some other person may have information, or may have documents or things that would tent to assist in ascertaining D’s identity or whereabouts. 3) pt5.7(a) the applicant may apply for a court order, which must be supported by an affidavit and 4) pt5.7(b) must be served personally on the other person. 5) pt5.2(2)- The court may make the following orders: (a) an order that the other person attend court to be examined about D’s identity/whereabouts (b) an order that the other person give discovery to the applicant of all documents in his/her possession that relate to D’s identity or whereabouts. (c) an order that the person attend court to be examined and produces to the court on the examination any document in his/her possession that relates to D’s identity/whereabouts. 6) pt5.5- The other person does not need to comply, unless s/he has been paid ‘conduct money’ beforehand. 7) pt5.6- If the other person incurs additional expense in complying, the balance must also be paid to them. 8) pt5.9 This rule applies where the applicant wishes to claim/cross-claim against a person who is not a party to the proceedings. The second type of pre-proceedings discovery is when the identity of the prospective D is known, but the applicant is not sure if a good cause of action exists. See pt5.3: Steps 1) pt5.3(1)(a)- if it appears to the court that the applicant might have a claim against prospective D, but having made reasonable inquiries, is unable to get enough information to decide whether to sue and 2) pt 5.3(1)(b)- the prospective D may have in his/her possession a document/thing which may assist applicant and 3) pt5.3(1)(c)- inspection of this doc would help applicant 4) The court can order discovery by the prospective D. 5) pt5.3(3)(a) + (b)This order must be accomanied by an affidavit, and served personally. The third type of pre-proceedings discovery is where there already is an action proceeding, but there is someone (not a party to the action) who has documents relevant to an issue in proceedings. See pt5.4 Steps: 1) pt5.4(1)- The court may order that a person, who isn’t a party, but who may have possession of a document that relates to any question in proceedings, must give discovery to the applicant of all documents in the person’s possession that relate to that question. 2) pt5.4(2)(a) + (b)- must be supported by an affidavit and served personally. [Norwich] HL case Held: where a person, through no fault of his/her own, becomes innocently mixed up in some way in the wrongdoing of another, that person can be made a defendant in an action for discovery for the limited purpose of divulging the identity of the wrongdoer. This is called equitable discovery. However, this would be used very rarely. 7) Subpoenas Subpoenas were originally used to secure evidence for a hearing. The distinction between discovery and subpoenas is not very strong. See pt33.2, pt33.4    A subpoena or order to produce describes the subject documents in a way which the person to whom it is directed can understand without knowing anything about the case The description of the documents can be very wide (eg., all financial records of NGTT Pty Ltd for the period ABC) provided that it is neither oppressive nor too difficult to understand Discovery requires party to list all documents relevant to the dispute → the party giving discovery has to know whaqt issues are in dispute and then form a judgment about the relationship of documents to those issues “Conduct Money” = small sum tendered when the subpoena is served to cover any transport costs to the court and back (party has to pay the person subpoenaed)  Subpoena v Discovery  A subpoena duces tecum is a writ issued by the court upon application by a party. It commands a person to whom it is directed to attend before the court and to search for and produce to the court documents relating to the cause or matter. Pre-emptive order, which attracts a fine if non-compliant  A subpoena ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.  It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.  A stranger should not be required to go to trouble and expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant : [Lee v Angas];[ Burchard v Macfarlane] They may apply to the court to set it aside  Discovery and inspection of documents is a pre-trial procedure to ascertain the existence, nature and contents of relevant documents. It is subject to the control of the court and the court can determine matters such as the validity of objection to production for inspection and generally enforce the duty to make disclosure and grant inspection. 8) Interrogatories Interrogatories are written questions served on the opposing party, which are answered by oath or affirmations. Admissions in a party’s answers to interrogatories are admissable in evidence, but they are not binding. The party who made them can attempt to explain them away or contradict them [Gannon]. They are rapidly becoming a rarity in most places, a measure of last resort and, even then, only where they are obviously necessary. This is a very costly procedure. See pt22. Interrogatories may still be useful in pretrial procedures in aid of settlement, and can be useful where the information in issue is in the exclusive possession of the opposing party. 9) Medical Examinations See pt23.1 for legislation regarding medicals. The Courts have emphasised that they will order medicals only if the procedure is reasonable in the circumstances. ‘Reasonable’ can sometimes include fairly invasive procedures. It can also include multiple examinations by a series of specialists [Turvey]. It seems that the party insisting on his or her opponent submitting to a procedure bears the burden of proving that it is a reasonable procedure [Stace]. CLASS 9.1 Uniform Civil Procedure Rules 2005 pt5.2 Discovery to ascertain prospective defendant’s identity or whereabouts (1) This rule applies if it appears to the court that: (a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned. (2) The court may make either or both of the following orders against the other person: (a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned, (b) an order that the other person msut give discovery to the applicant of all doceuments that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned. (3) A court that makes an order for examination under subrule (2)(a) may also make either or both of the following orders: (a) an order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tended to the person a reasonable time before the date on which attendance is required. (6) If a person incurs expense of loss in complying with an order under subrule(2)(a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss. (7) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the other person. pt5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. (3) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and 1 Interrogatories (1) At any stage of the proceedings.If at any time after party B’s affidavit is made. party B must forthwith give written notice to party A of that fact. and before the end of the hearing. pt21. or (b) that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not. party B’s possession. (3) In the case of proceedings on: (a) a claim for damages arising out of death of. (b) the interrogatory is vexatious or oppressive. be served personally on the person to whom it is addressed. any person. (4) In any case. (5) An order to answer interrogatories: (a) may require the answers to be given within a specified time. together with a copy of the supporting affidavit. but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings. . Such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of an order. (2) Unless the court orders otherwise. a privileged document. unless the document has been received into evidence in open court. to be verified by affidavit… pt22.2 Objections to specific interrogatories A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order. (c) the answer to the interrogatory could disclose privileged information.6 Subsequently found documents to be made available . as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of notice. together with a copy of the supporting affidavit.7 Discovered documents not to be disclosed Discovered documents only to used for the purposes of the conduct of proceedings. or (b) a claim for contribution in relation to damages so arising. or has ceased to be. or has come into. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. and comply with rule 21. This does not affect the power of the Court to make orders as it thinks fit. and (b) must. pt5. pt22. must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to that question. or any of them. and (b) may require the answers. an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought.5 in respect of the document.4 Discovery of documents from other persons (1) The court may order that a person who is not a party to proceedings. pt21. or bodily injury to. be served personally on the person to whom it is addressed. such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. the court may order any party to answer specified interrogatories.(b) must. party B becomes aware: (a) that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within. on request by the first party. any person of the kind referred to in rule 35. setting out each interrogatory followed by the answer to it. an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party in the proceedings. pt22. the court: (a) may order the party to make a further answer.1 or 22.4 Order for examination . and (b) must answer the substance of each interrogatory without evasion.1 Application and definitions (1) This Division applies to proceedings in which: (a) a person’s physical or mental condition is relevant to a matter in question. and (b) either: (i) that person is a party… pt23. (2) A notice for medical examination is to be in the form of a request that the person concerned submit to examination by a specified medical expert at a specified time and place.1 fails to answer an interrogatory sufficiently within the time specified in the order or. pt22. or (b) may order the party or. pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination. and to verigy that further answer by affidavit. the order requires. or (b) if the proceedings were commenced by statement of claim and the party in default is a defendant. as the case requires. pt23.4 fails to answer an interrogatory sufficiently.4 Insufficient Answer (1) If a party who has been ordered to answer interrogatories under rule 22.2 Expenses . (2) Such a statement: (a) must deal with each interrogatory specifically.A party who serves a notice for medical examination must.2 Notice for medical examination (1) Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned. including the expense of having a medical expert chosen by the person attend the examination. including: (a) if the party in default is a plaintiff.3(1).3 Answers to interrogatories (1) A party who has been ordered to answer interrogatories msut do so within the time required by the order by serving a statement of answers on all other active parties. must be verified by affidavit. the court may give or make such judgment or such order as it thinks fit. within 28 days after being served with the order. pt 22. pt23.5 Default (1) If a party who has been ordered to answer interrogatories under rule 22. an order that the party’s defence be struck out. to attend to be orally examined. and (c) to the extent to which.6 Answers to interrogatories as evidence (1) A party: (a) may tender as evidence one or more answers to interrogatories without tendering the others. and (b) may tender as evidence part of an answer to an interrogatory without tending the whole of the answer… pt23. and in the manner in which. if no such time is specified.pt22. the person must do all things reasonably requested. by the medical expert for ther purposes of the examination.4 Setting aside or other relief (1) The court may. by subpoena order the addressee: (a) to attend to give evidence as directed by the subpoena. set aside a subpoena in whole or in part. pt33. in any proceedings. . (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.5 Medical expert for person concerned . a sufficient number of copies of the subpoena for service and proof of service. pt23. or (c) to do both of those things. (2) An application under subrule (1) must be made on notice to the issuing party. including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. pt33.(1) The court may make orders for medical examination. (2) The issuing officer must seal with the seal of the court. or grant other relief in respect of it.2 Issuing of subpoena (1) The court may. or otherwise authenticate. on the application of a party or any person having a sufficient interest. or (b) to produce the subpoena of a copy of it and any document or thing as directed by the subpoena. (2) If the court orders that the person concerned submit to examination by a medical expert. and answer all questions reasonably asked. burden shifts.confined to religious confessions. pt3.Ct inspects and looks at probative value which can’t otherwise be provided and if public interest in confidentiality substantially outweighs public interest in disclosure. When can claims for privilege arise? . .The Ct can inspect the document in deciding if a claim of privilege can be upheld.also applies to pre-trial context. 298.  Treats the committal stage differently to hearing stage. it makes it inadmissable (s134) in the proceedings. the evidence can’t be adduced. not the person who made the confession.If under these tests.CLASS 10 Privilege 1) Introduction Why do we have privilege? .can’t require counsellors to provide documents. Governed by Uniform Evidence Act. 297. 2) Procedure for a claim of Privilege s132 of EA. Ct looks at harm to protected confider NOT public interest. s133.need to encourage victims to report . doctors s126B(1). 296.The Ct may direct that evidence not be adduced if it would invoke a protected confidence/identity (definition in s126A). This means the judge does not have to wait for parties to bring it up if s/he sees the issue coming up.when Ct must give a direction if satisfied that likely harm caused to protected complier if greater benefits to Court from having evidence adduced. 3) Professional Privilege This section does not include legal professional privilege.Religious confession s127 EA.The person claiming privilege must prove it on the legal balance of probabilities. However.tension between Cts. if other side claims privilege has been displaced. . . 5) Other privileges . s126B(4). which applies only to lawyers.a judge should alert the parties if s/he claims there is a potential claim for privilege.Society values particular relationships. whether substance of it has already been disclosed. .claims of privilege.Because of displaced blame victims feel. harm caused.Ct must put in writing its reasons for decision. .10 of EA.Counsellor less inclined to write comprehensive notes if it could be subpoenad. Privilege holder is the religious official. . 4) Communication to Sexual Assault Counsellors .considerations Ct can take into account: probative value.At pre-trial interlocutary stage and also at trial [Young] Held: Balancing exercise between the need for valuable information and protecting confidential relationship.This is also the most under-reported crime.Criminal Procedure Act: s295. Should this privilege be extended to apply to other professions? eg. .Committal stage.Remember. s142. s126B(5).Hearing stage. s126B(3). when Ct says no grounds. negligence). does not relate to offence in foreign country etc. will not be used (does not apply to corporations).retrospective certificate. [Bikic] Facts: Where witness had been convicted and documents would not have been relevant to the appeal. and anything given in connection with evidence. they will be given a certificate ss4. witness does not have to give evidence. If there are reasonable grounds. 3) ss2. . 8) Exclusion of Evidence in the Public Interest 1) Settlement negotiations. must give certificate ss6. If they overrule.if its been waived . harm done to person/relationship if evidence is revealed. .Privilege against self-incrimination.reasonable grounds needed for objection.negotiations between parties (covers Calderbank) (1)(b).also a human right and because of imbalance between gov and individual. and need for evidence.can override the privilege.s128.when Ct thinks interests of justice demand disclosure (ss6 says certificate must be given).When does it not apply? ss7.s128(2).does not apply in criminal cases in terms of that evidence being false. The grounds were not reasonable because a) no time to appeal and b) would not have helped appeal anyway. or material provided by the answer.why are they privileged? You could not be so open on facts if worried about evidence being used against you in Ct.if in interests of justice.burden on the prosecution . If no reasonable grounds and evidence given. You don’t have to answer questions/produce documents which could convict you criminally or civilly (unless it is a private civil matter where damages are claimed eg. 6) 3 Situations when you get certificate ss2. they will receive a certificate and thirdly. Ct has discretion not to compel witnesses to testify for prosecution against their parent/child/spouse.Rationale . Calderbank letters. then realises there were grounds ss4. cannot be usedevidence will have to be gotten another way.a document which has been prepared with attempt to negotiate a settlement (covers preparation for mediation). but after evidence is given it turns out that the grounds were reasonable.what evidence it applies to) 7) Effect of Certificate ss7. .Familial s18 EA.. Ct sees if it can get evidence from someone else. gravity of offence. ss5. Rationale: Encourages ppl to settle. the effect of the certificate.evidence given.what a certificate does. but if they do.Where privilege won’t apply ss(2)(h).when evidence is not to be adduced (1)(a). This can be overcome by giving person a certificate says that the answer. or if it would be an admission of guilt ss8. Also. . which means less cost/delay/stress 2) s131 of EA: (1).liability of costs .reasonable grounds for objection ss3.if consent of parties to disclose information . (s128(1). documents did not appear crucial to the Council’s claim. Aboriginal secrets.Associated with gove communications. Difference between a class claim (type of document) and a contents claim (specific document). Ct will lean against granting disclosure. .if information already has been disclosed.letter of demand . but in sufficient circumstances (depending on facts of the case) can override. ss4 + ss5 factors Ct considers in balancing exercise. Ct: Allowed disclosure in restricted circumstances: off camera.s130. AVO’s. [Northern Land Council] Ct: Looked at rationale for this privilege and the docs sought in this case were notebooks from Cabinet. Ct held that when documents part of a class which attracts immunity.not just to letters etc between parties but letters from a party to a mediator 9) State Matters . . Types of matters it will apply to (doesn’t apply to litigated matter): . They did not even allow inspection in this case. The public interest in preventing serious damage to proper working of government at the higher level prevailed over private individual.Requires a ‘dimension which is governmental in character’. with femal lawyers and not male lawyers.a proper function of government to protect Aboriginal culture and heritage vs info that could be relevant and important.customs. At any rate.weigh up public interest of disclosure with public interest of non disclosure. [Chapman] Facts: ‘Secret Womens’ Business’.. 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