Civil Procedure Exam Notes

Class 1: Introduction to Civil Procedure
Procedural Law adjectival law - Law that governs the conduct of proceedings before the court - Regulates the way that substantive rights and obligations are claimed and enforced doesnt impact on the definition of those substantive rights - The distinction between the two types is found in John Pfeiffer P/L v Rogerson o Substantive law: defines legal rights, duties, powers and liabilities o Procedural law: governed by lex fori procedural laws governed by the applicable laws of procedure and evidence of the court hearing the claim: Sources of Procedural Law - CPA - Civil Procedure Act 2005 for NSW - UCPR Uniform Civil Procedure Rules 2005 - These apply to the whole hierarchy of NSW courts - so different courts have different procedural rules, so there exists - Practice Notes for particular courts e.g. PN SC CL 5 (Practice Note Supreme Court Common Law List)
Looking at different legal systemsthere are essentially Two Legal Families - Civil Law Origins in Roman Law and the code civil of 19th Century France - Common law derived from medieval English civil society o Cardinal features of the 2 legal families are different, but theyre far from polar opposites o Both have the overall objective of the establishment of systems for the just resolution of disputes and the maintenance of social order (providing a viable dispute resolution process to maintain such order so people wont adopt their own devices, keeping peace between 2 parties and allocating an impartial 3rd party rather than duelling etc.) Ingredients include: being just, fair, impartial, timely, finality of decision, open to all/transparent (justice is seen to be done so confidence/faith in the system is maintained e.g. Russian system sometimes lacks integrity) o The means of achieving such ends (just resolution of dispute and maintenance of social order) differ o In the classic adversarial form of trial: The judge sits to hear and determine the issues raised by parties, not to conduct an investigation or examination on behalf of society at large. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties not up to the judge to investigate, judge is there just to listen, adjudicate and determine resolution. Why? Because a judge should be seen as impartial, its not practical since judge doesnt know much detail about either side of the dispute.
But now there is: o No pure example of either the civil law or common law system. All relevant legal systems in the Western world are to greater or lesser degrees hybrids of these 2 models or of other legal families
Adversarial vs Inquisitorial 1
Adversarial Party controlled dispute (that is the parties define the dispute and present evidence and argument) There is a reliance on orality. Testimony is adduced from witnesses and is subject to crossexamination. In addition, advocates use oral argument in the presentation of their case Use of precedent, procedural rules, laws of evidence The judge is impartial and acts as an umpire. The judge is reactive
Inquisitorial Party control of the dispute and the role played by lawyers is much less conspicuous (e.g. in Parisian courts, its hard to see
who the lawyers were, very little engagement with the lawyers)
The trial is the climactic beginning and end of the litigation process (and is distinct from the pre-trial stages of proceedings); Use of trial transcript for the appeal
The emphasis is on documentary proof and not on cross-examination court official goes and interviews people and writes everything into a dossier which becomes the substance of the trial only minor contribution from lawyers The main sources of law are codes with commentary by legal scholars There are minimal rules of courtroom practice The judges role is both proactive and inquisitive There is no rigid separation between trial and pre-trial phases No use of transcript, the trial is essentially a continual process which is all recorded in the dossier
Criticisms of the adversarial model - That it prevents access to justice due to cost (both private and public) and the delay. The
systems criticized for being unjust, unequal and producing inaccurate results. These criticisms resulted in major review of the civil justice system in England and Wales by Lord Woolf: Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (1995) and Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996)
Lord Woolfs main finding was that the primary problem of the unrestrained civil adversarial culture was that it restricted access to justice. Recommended a number of reforms such as: o Early settlement of disputes better to settle early so you dont clog up the queue, so people who really want a hearing can get there faster without you wasting their time meddling with matters of settlement offers of compromise that lasts for a limited amount of time (if not accepted by other party, then there are large cost consequences this encourages parties to seriously consider early settlement.) o Greater use of ADR Alternative Dispute Resolution much cheaper o Single expert witnesses; - both sides expert witnesses testify separately and dont really communicate time-consuming, difficult to understand both sides together single expert tries to get both parties to agree on 1 solution (hot-tubbing: putting 2 experts in 1 witness box, and encourages debate, judge can listen and ask questions more inquisitorial) role of judge is changing from these reforms to become more managerial 2
o Encouraging cooperation amongst lawyers not much cooperation exists in an adversarial system CPA contain obligations from lawyers to assist court by cooperating o Identification and reduction of issues as a basis for case preparation General case management (GCM) parties should write brief statement about what the dispute is about (rather than statement of claim then defence which is usually drafted by barristers) o Moving to trial as quickly as possible if settlement is not possible; o Use of overriding objectives in court rules to provide just, quick, cheap system of dispute resolution Similarly in Australia, some criticism has been made about the English civil system and resulted in the ALRC (Australian Law Reform Commission) conducting its own inquiry o Lots of reforms suggested, however the level of reform of the civil justice system is regulated by the level of funding of the operation of the system.
Funding
- Is a critical factor affecting the operation of the civil justice system Quoting Zuckerman: - But access to justice is a qualified right. Governments cannot reasonably be expected to provide unlimited publicly funded resources for the adjudication of disputes, particularly private disputes that do not have significance beyond the interests of the individual parties. From a policy perspective, there is a need to balance the governments duty to use public funds responsibly, including by making difficult decisions between competing priorities, and the obligation of parties in dispute to bear some responsibility for resolving their own difficulties. o Criminal justice system its justified to pour money in for that due to public interest to convict guilty and not the innocent o But for private disputes usually no public interest element - The right of access to court does not, however, entitle litigants to demand the best possible law enforcement process regardless of cost, any more than they are entitled to demand unlimited health support or boundless educational facilities. - The only reasonable demand that members of the community can make in respect to a public service is that funding should be commensurate with available public resources and with the importance of the benefits that it has to deliver. In addition, members of the community have a right to expect that within available resources, the service should provide adequate benefits to the community
Test of whether public service is adequate: if its effective, efficient and fair. A service is: o Effective - if its meets the reasonable expectations of the community, be they appropriate health service, a satisfactory educational system, or indeed, adequate court assistance for the enforcement of rights o Efficient - if its resources are used to maximise benefit output and are not unreasonably wasted on unproductive activities o Fair if the resources available to it are justly distributed between those entitled to the service and whether their needs are present or merely contingent Court adjudication is: o Effective if it determines claims with reasonable accuracy within a reasonable time and with proportionate investment of litigant and public resources o Efficient if public and litigant resources are employed to maximise effectiveness and are not wasted unnecessarily
o Fair resources and facilities are justly distributed between all litigants seeking court help and between present and future litigants CIVIL PROCEDURE ACT 2005 - SECT 56 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
Section 56 Civil Procedures Act - Sets out that the overriding purpose of this act and the UCPR is to o Facilitate the just, quick and cheap resolution of the issues in the proceedings. - The court must seek to give effect to this purpose when it exercise any powers - Considerable change for how courts dealt with civil matters - (Much more on this later) Principle of Open Justice [1.80] - The conduct of proceedings in publicis an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. o Justice must be seen to be done! o Educative factor increase public confidence o Its my tax money! Its a democracy! - Publicity of proceedings is one of the greatest protections against the exercise of arbitrary power and reassurance that justice is administered fairly and impartially Justice must be seen to be done - Lord Samuels: Its well established that in the ordinary course, the courts will conduct their proceedings in public. Its fundamental that the courts should be open to all, in order that all who are minded to do so may see how justice is administeredthat entitlement is not limited to those who have business in the courts as litigants; nor I myself would add, does it confer any privilege upon those who are a part of the 4
proceedings, the press or the public media. To be able to see the courts, what they do and say, belongs to the public generally. Exceptions to this principle: o To protect the identity of an informer the reason for allowing exceptions to open justice in cases of victims or informers is not out of tenderness towards the victim or the informer, but because experience has show that such complainants or witnesses will not come forward unless the you are given some protection o To protect the identity of victims of blackmail o To protect information of national security
Einfeld v R (No 2) - couldnt get a non-publication order not necessary for fair trial unsuccessful use of s71(b) FACTS: - Einfeld challenged unsuccessfully, counts in the indictment before a Trial Judge. He appealed to the CCA and wanted a continuation of the Trial Judges non-publication order in relation to the appeal proceedings. HELD: - There is no feature of the material set out in the principal judgement which gives rise to the necessity to direct non-publication of the fact of the appeal and of its outcome in order to ensure a fair trial. The high public principle of open justice should be given full weight. For these reasons, I propose that the non-publication order made on 17 June 2008 be dissolved. - No non-publication order granted
Exceptions to Open Justice in the CPA Non-disclosure
72 Court may prohibit disclosure of information The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of: (a) any party to proceedings, or (b) any witness in proceedings, if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings.
CIVIL PROCEDURE ACT 2005 - SECT 71

71 Business in the absence of the public Subject to any Act, the business of a court in relation to any proceedings may be conducted in the absence of the public in any of the following circumstances: (a) on the hearing of an interlocutory application (occurs prior to the trial or an appeal re inadmissibility of evidence), except while a witness is giving oral evidence, (b) if the presence of the public would defeat the ends of justice, (Einfeld)
(c) if the business concerns the guardianship, custody or maintenance of a minor,

(d) if the proceedings are not before a jury and are formal or non-contentious, (e) if the business does not involve the appearance before the court of any person, (f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit, (g) if the uniform rules so provide.
Re HIH Insurance Ltd documents regarding liquidation does not need to be disclosed due to creditor interest successful use of s71(b) FACTS: - An application under s71 for an order that the applications in the HIH matters be dealt with in the absence of the public. The application is made on the basis of s71(b) which permits such an order to be made if the presence of the public would defeat the ends of justice o The substantive applications involve directions to liquidators and other relief concerned with the progress of and steps to be taken in litigation, in which the companies in liquidation are involved - Argued: if the evidence intended to be adduced by them was made available to any of the defendants to the litigation concerned, the ability of the liquidators to advantageously pursue or conclude the claims for the benefit of the creditors of the relevant companies would be likely to be significantly prejudiced HELD: - Theres a public interest in open justice but also two other competing public interests: 1. The first is the public interest in the due and beneficial administration of the estates of insolvent companies by liquidators appointed by and answerable to the court, that administration being for the benefit of creditors 2. The second arises from the fact that applications before me relate to the pursuit of litigation. This is a clear public interest in the due administration of justice, in that in litigation in the normal course of ordinary litigant would keep close to the chest, as it were, the matters that the liquidator, because of their position, see fit to bring to the 6
court. The liquidators, because of their position, should not be set aside from other litigants and be placed to a disadvantage when, as I say, they are acting for the benefit of many thousands of creditors whose interest are very much to the fore. re documents that reveal the solvency or lack of solvency of the company Held that those matters do not have to be disclosed
Principles of a fair trial - As well as in criminal proceedings, the principle of a fair trial is also recognised in the conduct of civil proceedings. E.g. the function of providing proper notice is fundamental to the basic requirement of procedural fairness pleading/drafting Statement of Claim / defence to Statement of Claim one has to plea anything that might be a surprise to the other side this is notice person accused of something should know the case that they have to meet o In Australian jurisprudence, the principle of a fair trial is based on the inherent power of a court to control its own process, and particularly, on its power to prevent abuse of its processes: - The power to prevent abuse of process extended to a power to prevent unfairness generally: o Jago per Mason CJ The question iswhether the court, whose function is to dispense justice with impartiality, both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness o One of the issues that has divided the HC in recent times, and which remains unresolved, is whether such constitutional protection as exists of the courts power to protect the integrity of its processes, extends to the court acting on the basis that it should maintain public confidence in the administration of justice. What is your view? i.e. Should the Court always have an eye to maintaining public confidence to serve justice? Yes: or else they can just do anything No: who can identify how you protect public confidence? Whose opinions matter? - The obligation to obey the rules of natural justice (once referred to in terms of the duty to act judicially and now more frequently adverted to in terms of observing procedural fairness) applies with particular force to judicial proceedings. All the requirements of a fair hearing including reasonable notice of the case a person has to meet and the provision of a reasonable opportunity of presenting his/her case, as reflected in a series of detailed rules and practices, are manifestations of the principle with which I am concerned in this address; the basic building blocks of adversary proceedings in our legal system are similarly so informed. (The CPA and the UCPR have all these procedures to try and ensure procedural fairness) The imposition of an onus of proof and the differentiation of the standard of proof between civil and criminal proceedings, reflect an understanding of what fairness requires in the particular circumstances, relevantly, if the particular stigma of a criminal conviction is to be attached to a citizen - All of the detailed rules and practices with respect to when notice or disclosure is required, when an adjournment is appropriate and the order of proceedings, particularly the right of cross-examination, have as their source centuries of consideration by 7
generations of judges of the interaction, sometimes synergistic, sometimes in conflict, between the search for truth and the requirements of a fair hearing. The Crown as the Model Litigant - The Crown has obligations to be a model litigant. The Crown should act fairly towards those with whom it deals at least insofar as this is consistent with its obligation to serve the public interest (or interests) for which its has been created. The public interest that model litigants are to serve requires that they eschew (avoid) technicality and pursue fairness in the conduct of proceedings the crown should not take a purely technical point of pleading. - A model litigant is required to act with complete propriety, fairly, and in accordance with the highest professional standards. This may require more than merely acting honesty and in literal accordance with the law and court rules. Human Rights and case management - Australia doesnt have a Bill of Rights but there are two statutory Human Rights Acts in two Australian jurisdictions: The Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) both include a right to fair hearing and follow Art 14(1) ICCPR - Human rights considerations are of increasing relevance to the law governing the conduct of civil proceedings and to legal conceptions of what amounts to a fair trial or a just decision. However, modern civil justice is concerned with expediency and efficiency. o There is conflict between being fair, adopt all human rights maxims, but also be cheap and efficient. - Some of the areas where there may be tension between procedural reforms and Human rights protections include: o Limitations on expert evidence might limit info to court that supports your client o Excessive court fees and charges less access to justice o Limitations on the calling of witnesses could be disadvantaged unfairly o Limitations on the time allowed for hearings or the cross-examination of witnesses stopwatch trials which enforce specific amt of time o Limitations on proceedings in public o Compulsory referral to mediation or arbitration can be like religious zealots but have intense anti-court views fairness issues second-class justice o Cases where hearings are not held within a reasonable time delay - memories fade, documents go astray, but now there are urgent lists etc. o The nature of assistance required to be given to self-represented litigants problematic, a lot slower, more responsibility on the judge, more pressure on other sides lawyer, very little legal aid for civil matters maybe law society or KLC for legal advice but no representation o Restrictions to the right to a final hearing, including through provisions for striking out claims or defences claims can be struck out if ambiguous o Economic constraints on the right to a hearing, including security for costs e.g. if plaintiff litigates against MacDonalds (very, very rich), MacDonalds might ask court to order plaintiff to pay $0.5mil to ensure that in the event that they lose, MacDonalds can claim money. 8
o Paper-based versus oral processes and hearings no cross-examination for paperbased o Applications for an adjournment one party is ready to go, but other party not ready disadvantage first whos ready to go, or disadvantage defendant by forcing them to go on o Disclosure obligations and discovery access to info important o Exclusion of evidence o Requirements relating to proportionality e.g. proportionality of costs s60 CPA dont let legal costs a lot more than whats fought after o Judicial appointment, tenure and bias appointed acting judges (barristers) independence issues might be biased o The funding of the civil justice system CIVIL PROCEDURE ACT 2005 - SECT 60 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving 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.
The NSW Court hierarchy

Local court - Small claims division claims up to $10K - General division claims between $10k-60k District court - Claims up to $750k or more by consent - Faster and cheaper than local court - DC is a high volume civil jurisdiction. Focusing significantly on matters involving personal injury, it requires litigants, except in the case of a time limitation period, not to commence an action unless they are ready to proceed. Supreme Court - Common Law division eg. Personal injury damages claims, professional negligence claims etc. of more than 750k - Equity division: e.g. commercial law, corporations law, equity, trusts, family, probate, family provisions legislation. Supreme Court: Common Law Division - Begins with plaintiff drafting a summons or Statement of Claim and file at registry stamped and photocopied, you give a copy to your process server who serves it to your defendant process server has to fill out an affidavit of service. - Each summons or statement of claim (with the exception of default matters where youre required to do something but you dont do it.) is given a return date before a judge 9
or registrar has it placed in a list. A judge is appointed to manage each list, whilst the CL list judge monitors all matters listed for hearing before a judge. Registrars of the Division handle default matters administratively. Common Law list judge - The List Judge manages the progress of cases from Call-up (all the solicitors come together on a particular day and judge goes through the whole list and goes through how long things are going to take, and schedules a date) until a TJ is appointed. Judges and registrars refer matters to the Call-up that are ready for hearing and a hearing date is allocated. - At the Call-up, the List Judge considers a number of factors, including the availability of judges, the type of matters, and estimates of duration of the trial (how many witnesses etc), before listing matters for hearing. The List Judge also hears any applications for an adjournment. Common Law duty judge list - The duty judge is available each day to hear urgent applications, including applications for interlocutory injunctions, during and outside normal court hours when required. Judges of the division are rostered to a court as the duty judge for a week at a time during law term. A vacation judge is rostered during the court vacation to perform this same role. Associate judges - Associate judges in the Common Law division deal with applications for summary judgement and dismissal, applications for extension under the Limitations Act 1969 and opposed applications to transfer matters from the district court. - The caseload of the CL division is distributed amongst a number of specialised lists e.g. GCM list o This list comprises of all civil cases commenced by Statement of Claim that are not included in the admin law, defamation, professional negligence or possession lists. It includes money claims, personal injury claims, claims for possession (excluding land), breach of contract, personal property damage, malicious prosecution and claims unde the Compensation to Relatives Act 1897. These cases are casemanaged by registrar who conducts status conference and final conferences. o At the status conference, the registrar gives directions to ensure cases are ready for hearing by the compliance date. Procedures associated in running a dismissal are in Practice Note SC CL 5.
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Class 2: Case Management in NSW
Case management in NSW Justice delayed is justice denied. Why?
(Chapter 2: 2.10 2.120)
o Witnesses die, memories fade, records may be lost o Adds to costs o Cases waiting start to back up Legal culture has developed, and thus accepted and adapted to the fact that it takes years to get a case on for trial delay becomes a cultural norm Commercial division begins to initiate change introduced case management instruments where the judiciary accepted a considerably expanded role and became more hands-on/managerial more inquisitorial
Techniques to reduce the backlog o Increase the jurisdictional limit of the lower courts allows transfer of cases from Supreme Court to District Court SC was really jammed o More judges and acting judges appointed (senior barristers but there are judicial independence issues since the barrister community is very peer-orientated, after the backlog we dont need them anymore) so now, only retired judges, and judges from other States are acting judges o Refer a large number of personal injury cases that did not raise complex issues to arbitrators these arbitrators were generally form the private bar o Non-complex personal injury cases referred to arbitration cheaper now there are court-annexed arbitration (can be compulsory) o Blitz large number of cases of similar character (especially personal injury) listed together: greater pre-trial disclosure imposed and no adjournment policy powerful incentive for legal practitioners to settle cases (since you dont know when your case is going to be on, so the case could be hanging around for years before it gets its appearance.) Results - Results were substantial. Cases that used to be delayed for 5 years were practically reduced to zero. o District Court now aims to provide a final hearing within 12 months of commencement of action o Supreme Court, matter is aimed to go to hearing within 2 years of commencing action - Focus is not moving away from delay and moving towards reducing costs. - But case management can increase costs indeed costs can be shifted court also wants to reduce the costs it has to pay, so courts were merely shifting costs onto the parties. During this early introduction of case management, there was a real demonization of delay. But not all lapse of time is delay. Unacceptable delay is the time beyond that which is reasonably required for the fair and just determination of the case. What weve seen is a gradual disappearance of civil juries and replacement of oral testimony with written testimony usually as affidavits less focus on orality. These affidavits provided to the examination in chief were often with supplementation except
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where there are important issues related to the credibility of witnesses oral tradition being modified By 2000, there were changes that reflected measures that now exist in the CPA and the UCPR e.g. o The court developed a new statement of overriding purpose to give effect to the overriding purpose when it exercised any of its powers o Obligation on a party to civil proceedings to assist the court to further the overriding purpose o Rules imposed on all parties an obligation to refrain from making allegations or maintaining issues, unless it is reasonable to do so o Power in the court, when exercising the courts discretion to award costs, to take into account any failure to comply with these duties by a party or a legal practitioner o Rules identified a range of specific directions which the court may take in the course of managing cases, including the imposition of time limits on the evidence of witnesses, or on submissions, or on the whole or part of a case o Amendments made to the rules which identified circumstances in which a legal practitioner could be ordered to pay costs (Balance of Chapter 2)
Class 2: Case Management and Adjournments -
Case management has the potential to impose increased costs on the parties Why? / How? o It requires an increased amount of court appearances which the court determines as necessary each time you go to court, have to martial your barristers and this is expensive! ($2000/day) Particularly if court is particularly demanding with respect to proper answers to questions cost shifting What role can case management play to ensure this doesnt happen? o Be more judicious with regard to number of times required to appear before court some cases dont need to go to court 5 times before a hearing o A tension exists between the important role of efficiency and the essential prerequisite that the civil justice process should provide fair outcomes, arrived at by fair procedures, with fidelity to the law. Efficiency vs. justice tension. This is the overriding test of judicial legitimacy. What might a pre-occupation with disposal of cases / efficiency lead to? o May lead to ignorance of real issues of the case thus compromising quality of the justice served o Case management raises fundamental issues concerning efficiency and justice
Queensland v JL Holdings Pty Ltd (prior to CPA and UCPR therefore dont use anymore) FACTS: - JL Holdings claimed damages for failure of a building development to proceed after a change of government. The State of Qld sought leave to amend its pleadings to allege non-compliance with the relevant legislation. 12

The TJ and the Full Federal Court refused leave to amend because it should have been done years ago; it might have required joinder (joining with another party) of JL holdings solicitor; it would require more discovery and as a result probably a longer trial, and it would have delayed the start of the trial. The members of the High Court did not accept this view and overturned the decision. Though Case Management was endorsed, individual justice was considered to be the dominant criterion.
HELD Dawson, Gauldron, McHugh JJ: - Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management involving as it does the efficiency of the procedure of the court was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shoving the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties Kirby J: - Agrees with above judges - The conviction that accumulated delays occasion serious injustice has led to a greater use of case management as the only effective means by which judges can respond to their ever increasing case loads without benefit of commensurate increases in judicial numbers and resources. - For my own part, I would not wish to be taken as indicating any lessening of the appreciation by this court of the importance for justice of the efficient management of litigation in the courts of Australia. Such management is now an essential feature of the administration of justice, the importance of which is likely to increase in years ahead. But whilst it remains in judicial hands, it (case management) is a function which must be performed with flexibility and with an undiminished commitment to afford to all who comes to the court a manifestly just trial of their disputes.
Then came the CPA and UCPR 2005 - The CPA and the UCPR consolidated the existing provisions about civil procedure into a single Act and a single set of rules that apply uniformly to all 3 NSW courts. For the first time, a synchronisation of civil rules and civil forms between the three main jurisdictions exist
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The CPA and the UCPR confirm and re-enact the powers of courts to confine a case to the issues genuinely in dispute and to ensure compliance with court order, directions, rules and practices.
Part 6 Case management and interlocutory matters

Division 1 Guiding principles 56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
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58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay (cf Western Australia Supreme Court Rules, Order 1, rule 4A)
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
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60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving 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.
s56 provides that parties have a statutory duty to assist the court to further this overriding purpose and therefore to participate in the courts processes and to comply with direction and orders. ss56-60 should examine shall look at some cases with important comments about these o When exercising any power, a court is required to give effect to the overriding purpose expressed in s56 of CPA: that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. o The sections that follow s56 are s57 Objects of case management, s58 Court to follow the dictates of justice. s59 elimination of delay and s60 proportionality of costs ss57 and 58 are congruent with just, s59 with quick and s60 with cheap. It is to be noted that s57 and s58(1) and (2)(a) are mandatory, whereas s58(2)(b) is discretionary
How has Part 6 of the CPA affected Civil Procedure?
Metropolitan Petar v Mitreski 13 Under Part 6 of the CPA, the guidelines for dealing with case management and procedural applications have changed considerably from the previous regime (in JL Holdings, it was about justice, but now parliament has spoken through this legislation and its overriding purpose) Part 6 of the NSW Act obviously draws from the English experience and so uses the words overriding purpose. Section 56 referring to the overriding purpose of the Act and rules of the court as facilitating the just, quick and cheap resolution of the real issues, is supplemented by ss57-60. Section 57 says that for the purposes of furthering the overriding purpose, proceedings in the court are to be managed having regard to the following objectives: (a) the just determination of the proceedings (b) the efficient disposal of the business of the court (c) the efficient use of available judicial and administrative resources (d) the timely disposal of the proceedings and all other proceedings in the court, at a cost affordable by the respective parties Section 58 then says that in deciding what orders to make in an application during the case management process, the court must seek to act in act with the dictates of justice. Subsection (2) then fleshes out what are the dictates of justice in any particular case. Accordingly, one is not now dealing with what in the old days were called entitlements to an order and focussing principally on the rights of a party in litigation but one is now looking at the broader picture. That is, the overall just disposal of the proceedings within a reasonable time 16

frame. Accordingly, when a court is making case management orders, the court is required more to focus on ss56-60 than those made under the old procedure which focuses more on the rights of parties. Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd; Robert Lloyd Brooks v Clark Rubber Franchising Pty Ltd - The overriding purpose of the CPA and of the rules of the court (now enshrined in s56 of CPA) is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. - Each of the objects of case management now to be found in s57 of the Act as well as the criteria concerning the determination of what are the dictates of justice in a particular case (to be found in s58(2)) mandate the principled exercise of the material discretion being to dismiss the instant application for security for costs. S58(2)(b) requires the court to take into account, inter alia, the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities (everything up to (and around) the trial e.g. filing the original claims e.g. SoC to defence, defence has a certain time to respond, then directions hearing, call-up, and hearings about admissibility of evidence that come because of the trial), as well as the use that any party could have made of any opportunity that has been available to the party in the course of the proceedings, and of course also the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. - None of these matters are particularly novel, but one now has it in statutory form , a signal emphasis on the significance of close attention being paid to the duty imposed upon parties to civil proceedings, to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court, here to ensure the efficient disposal of the business of the court and timely disposal of the proceedings at a cost affordable to the respective parties
The objects of case management identified in the CPA and the UCPR are the just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the court, at a cost affordable by all parties. The CPA also requires the practice and procedure of the court to be implemented with the object of eliminating unnecessary delay, and court practices and procedures are required to be implemented with the object of resolving disputes, so that the costs to the parties are proportionate to the importance and complexity of the subject matter in dispute. A comprehensive range of powers now exist to do this and include: o Power to direct parties to take specified steps and to comply with timetables and other wise to conduct proceedings as directed o Powers with respect to the conduct of the hearing, including limiting the time that may be taken in cross-examination, limiting the number of witnesses, limiting the 17

number of documents that may be tendered, limiting the time that may be taken by a party in presenting its case or in making submissions. See s62(3) o Powers are to be exercised subject to the requirements of procedural fairness and are to take into account a range of relevant matters, including the subject matter and the complexity or the simplicity of the case, the efficient administration of court lists (including the interests of parties to other proceedings before the court) and the costs of the proceedings, compared with the quantum of the subject matter in dispute The court is empowered at any time to direct a solicitor or barrister for a party to provide to his or her client a memorandum stating the estimated length of the trial and estimated costs of legal representation including costs payable to the other party if the client were unsuccessful. Case management is undertaken through a series of directions hearings before a judge or a registrar. The date of the first directions hearing will be given by the registry in a notice issued at the time of filing the Statement of Claim. In the Supreme Court, the first directions hearing will be appointed for approximately 3 months after filing the SoC and proceedings are entered in the List. Directions given at the directions hearing are binding and a range of sanctions are available if they are breached. See s61 CPA if a party fails to comply with a direction what can the court do?
CIVIL PROCEDURE ACT 2005 Division 2 Powers of court to give directions 61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, 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, (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. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, 18

(f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) 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. 62 Directions as to conduct of hearing (cf Act No 52 1970, section 87; Act No 9 1973, section 77 (4); SCR Part 34, rules 6 and 6AA)
(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made. (2) The court may, by order, give directions as to the order in which questions of fact are to be tried. (3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing: (a) a direction limiting the time that may be taken in the examination, crossexamination or re-examination of a witness, (b) a direction limiting the number of witnesses (including expert witnesses) that a party may call, (c) a direction limiting the number of documents that a party may tender in evidence, (d) a direction limiting the time that may be taken in making any oral submissions, (e) a direction that all or any part of any submissions be in writing, (f) a direction limiting the time that may be taken by a party in presenting his or her case, (g) a direction limiting the time that may be taken by the hearing. (4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity: (a) to lead evidence, and (b) to make submissions, and (c) to present a case, and (d) at trial, other than a trial before a Local Court sitting in its Small Claims Division, to cross-examine witnesses. (5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant: (a) the subject-matter, and the complexity or simplicity, of the case, (b) the number of witnesses to be called, (c) the volume and character of the evidence to be led,
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(d) the need to place a reasonable limit on the time allowed for any hearing, (e) the efficient administration of the court lists, (f) the interests of parties to other proceedings before the court, (g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute, (h) the court's estimate of the length of the hearing. (6) At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating: (a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and (b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party. 63 Directions with respect to procedural irregularities (cf Act No 52 1970, section 81; Act No 9 1973, section 159; Act No 11 1970, section 75A) (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure: (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1): (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.
The application of the CPA and UCCPR Chandra v Perpetual Trustee Victoria Ltd operation of s61(3) what courts can do if
parties fails to comply with directions of the court
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Before the discretion to make an order under s61(3) arises, there must first have been a direction under s61(1) and a failure to comply with it. When that condition is satisfied, there is a discretion to make an order under s61(3) In the exercise of that discretion, the court must give effect to the overriding purpose of the act, namely facilitating the just, quick and cheap resolution of the real issues in the proceedings (CPA s56(1), (2)) In deciding whether to make any such order, the court must seek to act in accordance with the dictates of justice. (CPA s58) CPA s58(2)(b) lists a number of considerations to which the court may have regard in determining the dictates of justice. The substantive provisions of the CPA commenced on 15 Aug 2005. That act alters in significant ways the power of the court to give directions concerning the conduct of proceedings, and in broad terms, the CPA expects the court to take a firmer hand in the preparation of matters than had previously been the case. There is some reluctance on the court to dismiss a case when there has not been a hearing on merits. However, if a party, by repeated failures to comply with directions, demonstrates that she is not prepared to play their role in the expeditious advancing of the proceedings, it is that partys own conduct which has prevented a hearing from taking place. The power to dismiss proceedings for failure to comply with directions is one which will be used in appropriate cases. The ultimate aim of the court is the attainment of justice, and that aim is not surpassed by any principle of case management or efficiency in the procedures of the court . In particular, the advancement of efficiency in procedures, while a relevant consideration, is generally of less weight than the justice of precluding the determination of the merits of a genuine issue of the court (Qld v JL holdings). The CPA does not alter this. It continues to give primacy to the dictates of justice. The dictates of justice are determined by weighing the injustice of denying a party a hearing on the merits, against the injustice of requiring the other to tolerate the first procedural defaults. But while in evaluating what are the dictates of justice, its relevant to take into account such procedural defaults. It will only be in exceptional cases that the injustice they occasion to the other party is such as to deny the justice a hearing on the merits. What can be done to compensate a person for injustice of delay? Cost orders, the soothing balms of a costs order.
A&N Holding NSW Pty Ltd v Andell Pty LTd examines ss56-60 FACTS: The D wanted the Ps case to be dismissed due to breach of court directions made over past 12 months submitted that the conduct of parties were totally inconsistent with the overriding purpose of the rules (just, quick and cheap resolution of litigation in the court, in particular in the commercial list) using Part 6 as a weapon (ss56-60) 29: s58 applies to this application and imposes an obligation on the court to have regard to certain matters in deciding the dictates of justice in a particular case. The first requirement is to have regard to the provision of s56 and s57. In that regard, there is little doubt that the opportunity of the just, quick and cheap resolution of the real issues in this litigation has been compromised. Had the P complied with the court orders, this case more probably than not, would probably have been heard and determined before now. 21

30: s57 requires consideration of a number of features of the objects of case management as to the efficient disposal of the business of the court (s57(1)(b)) 31: The 4th objective, s57(1)(d), the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties was an object of a rather large proportion. What is affordable to one party may not be affordable to another. If a party is in fact an individual with not much money and is required to return to the court with legal representatives time and time again, it could hardly be said that the efficiency of case management and the timely disposal of cases are met. 33: The Act also requires a consideration of a series of matters that I regard as relevant s58. The first (s58(2)(b)(i)) is the degree of difficulty or complexity to which the issues in the proceedings give rise. This case does not seem to me to raise a high degree of difficulty or complexity. It is a case in which the plaintiff claims the defendants sold them a business and effectively continued to operate the very same business that they sold to the plaintiffs by reason of the conduct alleged. It may provide difficulties in the gathering of evidence, as these cases do, in that such conduct is usually covert and the plaintiff has to be diligent to utilise the rules to obtain evidence proving the allegations of such conduct. 34: the 2nd matter, s58(b)(ii), is the degree of expedition with which the respective parties have approached the proceedings. 38: Another relevant matter that I should give consideration to is the degree of injustice (s58 (2)(b)(vi)) that would be suffered by the respective parties as a consequence of any order or direction. These are causes of action brought by these plaintiffs that would not be out of time if I strike this matter out or dismiss it today. The plaintiffs may be able to commence proceedings at a later time when they are committed to their duty under s 56(3). One has to weigh that matter up with the obvious cost that would be further incurred. 1. What was the injustice to the defendants if the judge let the case go forward whilst a party has failed to comply its duty under s56(3) and why was that not considered important? Injustice to defendant party delayed can be compensated with costs so the only prejudice is the unnecessary expense 2. What finally persuaded the judge? Judge didnt throw the case out Judge needs to make a proportionate response Is depriving the defendant from litigating on its merits a proportionate response to the amount of delay? I think not
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Section 15 Practice notes (1) Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies. (2) Part 6 of the Interpretation Act 1987 applies to a practice note issued under this section in the same way as it applies to a rule of court.
PRACTICE NOTES - What is the section of the CPA that a statutory basis of the issue of practice notes and regulates the relationship between itself and the UCPR? o Section 15 CPA - Note that each senior judicial officer of the local, district and Supreme Court will be able to issue practice notes to deal with specific aspects of civil proceedings in their respective courts. But these practice notes are subject to the UCPR. - Practice notes are a convenient way of indicating the practicalities of procedures - E.g. Practice Note SC Gen 1 o Application of Practice Notes indicates that all Practice Notes in the Supreme Courts begin with SC. o Practice Notes that relate to a general issue with application across one or more of the courts or divisions is abbreviated with Gen.
Practice Note SC CL 5 Supreme Court Common Law Division no. 5, General Case Management (GCM) List
This practice note applies in the Common Law division GCM applies to all active proceedings commenced by a statement of claim in the CL division or proceedings transferred from another court or division of the SC that are not proceedings in other lists (defamation list; the professional negligence list; the possession list; or proceedings that are commenced in the admin law list._ When a plaintiff files an originating process, a notice is issued by the registry indicating a first directions hearing approx 3 months later. At the same time as filing the originating process, a plaintiff must file GCM documents and any other party must file GCM documents no later than one month before the first directions hearing. There are additional documentary obligations for different kinds of claims, however each party, at a minimum is required to provide a concise narrative of the facts the party intends to prove on the issue of liability, so drafted as to expose the specific matters of act, but not law, upon which liability is likely to depend. Such information would otherwise not have been made available until much later in the process. (Traditionally, information received by both parties are the pleadings (SoC and defence) but these arcane rules of pleadings encourage lawyers to draft as broadly as possible because evidence has to be in your pleading so its not very concise this PN requires supplementation of concise statements to the pleadings) Before the first directions hearing, parties are expected to have: o Discussed the case with the other party to narrow the issues and identify any matters of agreement o Agreed on suitable interlocutory (prelim) orders, directions or arrangements; o Prepare a draft timetable for future management of the proceedings 23

o Prepare draft short minutes of any orders or directions to be sought at the directions hearing, and o Discussed the possibility of settling the dispute by alternative dispute resolution. (ADR) At the directions hearing, the registrar or judge manages how the case will proceed o (e.g. transferring the case to another court, defining issues, including liability, directing what witness statements need to be filed or served, considering ADR suitability, making consent orders for the completion of interlocutory steps such as discovery, interrogatories, medical examinations or expert reports.) The plaintiff at the first directions hearing is to provide each party with an evidentiary statement and within 28 days, the defendant is to serve on the plaintiff a concise statement of issues in dispute and an indication of the evidentiary statement the defendant requires to be given orally. (I.e. deals with what can be done by paper, and what evidence needs to be done in a witness box by a witness.) Then within 14 days of receipt of the statement of issues in dispute, the plaintiff must provide a statement identifying issues that are agreed and not agreed.
Directions hearing by telephone conference call

From 7 March 2007, the CL registrar has conducted directions hearings via a dedicated telephone conference call facility 1. What matters are considered appropriate for a directions hearing by telephone conference? o Consent matters both parties have got together and agreed that this is the order they want to be given - even for lawyers within CBD o Contested matters - if live outside the CBD 2. What kind of directions can be obtained? o Adjournments o Directions o Allocations of hearing dates o Can only do matters that are sanctioned by s71 (absent of the public) Parties are required to fax any proposed directions to the CL Case Management registrar by 5pm on the day before any scheduled telephone directions hearing. The proposed directions should indicate if they are consent directions. The conference is taped and copies of the tape can be purchased from the court.
Electronic Case Management

ECM is in its infancy in NSW civil court PN SC Gen 12 online court protocol commenced on 8 Feb 2007 applies to CCA where an application for extension of time or notice of appeal has been lodged; matters in the CL division and selected matters in the equity divisions. Doesnt apply to self -represented litigants. Online court is at the discretion of a judicial officer and may be used for any hearing permitted by s71 of CPA. o Those that can be heard in the absence of the public 24

(a) Interlocutory applications except where a witness is giving oral testimony (d) If the proceedings are not before a jury and are formal and noncontentious (e) If the business does not involve the appearance before the court of any person (f) In proceedings in the Equity division of the SC as the court thinks fit At the discretion of the Judicial Officer, an order may be made that any or all directions hearings of any case will be conducted via online court. If such an order is made, all legal practitioners involved must ensure they are ready? (cant hear properly)
71 Business in the absence of the public Subject to any Act, the business of a court in relation to any proceedings may be conducted in the absence of the public in any of the following circumstances: (a) on the hearing of an interlocutory application, except while a witness is giving oral evidence, (b) if the presence of the public would defeat the ends of justice, (c) if the business concerns the guardianship, custody or maintenance of a minor, (d) if the proceedings are not before a jury and are formal or non-contentious, (e) if the business does not involve the appearance before the court of any person, (f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit, (g) if the uniform rules so provide.
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Adjournments
Adjournments (Chapter 9: 9.190 9.220)
66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.
What section of the CPA provides power for the court to grant an adjournment? s66 only permits the adjournment of proceedings to a specified day and the court would not permit proceedings to be stood over generally in the exercise of any inherent power of the court It would not ordinarily be proper to adjourn a matter indefinitely. When an adjournment is granted, directions should be given to ensure, as far as possible, that the matter will be ready to proceed when next listed City of Sydney Council v Satar - s66is a wide and ample power to adjourn the hearing of any matter, the principal consideration being what is necessary to do justice between the parties.
Murtought v Betham What did the plaintiff want? He was in Orange wanted the court to ring him to hear his submissions over the phone 24: The exercise of the discretion of the court is informed by the provisions of ss56, 57, 58 and 59 of the CPA. In exercising any discretion conferred on the court, effect must be given to the purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. In giving effect to that purpose, the court is required to manage proceedings so as to allow for their just determination, efficient disposal, efficient use of available resources, and timely disposal. The provisions of s 58(2) of the CPA expand on the relevant considerations in determining the dictates of justice, some mandatory provisions, and some not. 25: Further, the provisions of s59 require the court to implement a practice and procedure, the object of which is the elimination of lapse of time between the commencement of the proceedings and the final determination, beyond that which is reasonably required to the just and fair determination of the issues in dispute. 27: The balance of giving to a party a further opportunity by way of amendment, adjournment or other indulgence, and the injustice to another party caused by such delay is often difficult.
26
Adjournments
28: Dealing with an adjournment application, the HC has, relying on Maxwell v Keun reiterated that, while an appellate court would only exceptionally interfere with the discretion to refuse an ajournment, it will do so when the failure to adjourn results in a denial of justice and the adjournment would not otherwise result in any injustice to other parties, thus an adjournment which if refused would result in serious injustice to the applicant should only be refused if that is the only way that justice can be done to the other party in the action. The refusal to grant an indulgence of the kind being sought can constitute a failure to give a party the opportunity of adequately presenting his case. Every party, including Mr Murtought, is entitled to a proper opportunity to prepare and present his case. In that regard, the court has the responsibility to ensure a party is given every reasonable opportunity to prepare and present the case it brings to the court, that theres no duty nor could there ever be to ensure that the party takes advantage of the opportunity given to him and to which he is entitled. The principles to be applied require the court to balance the injustice of preventing Mr M from pursuing his claim against the injustice to the defendants from further delay. In the extraordinary circumstances now before the court, that balance falls against Mr M. The court has now given Mr M more than enough opportunity to prepare and present whatever case he wishes the delay he has occasioned by his inability to take advantage of those opportunities has created an injustice and prejudice for the defendant, which injustice and prejudice is incapable of being overcome. Certainly an order for costs cannot sufficiently address these issues.
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Costs
Class 3: Costs (Chapter 3 omit 3.350 & 3.360)
Costs/Claims - Case management may impose disproportionate, indeed even unnecessary costs on parties. From the outset of modern case management, concerns were expressed that the effect would be to frontload costs by bringing forward costs, (incurring costs earlier on since most matters settle, you still have to pay certain costs) including in many matters that would in the normal course have settled without incurring any such costs at all. o Case management may be efficient and effective, but costly - To reduce costs could reduce in the number of times a matter is brought before the court, particularly in the form of requiring attendance by lawyers at courts, often in long lists where a substantial amount of the costs are incurred in just waiting to get on. - Extensive use of telephone direction hearings and electronic communications (for interlocutory issues) must be given a higher priority than in the past its a way of being much more efficient. - Cost-shifting; For case management one of the matters to which it is particularly important to have regard is the tendency of any rational participant in the process to shift costs from themselves to other participants. - A good example is the practice of overlisting which enables a court to make full use of its resources despite the occurrence of last minute settlements. However, when matters are not reached, the costs imposed on the parties may well be greater than any cost savings to the court. Spigelman CJ: Its theoretically possible to adopt rules, which must necessarily be flexible because of the contingencies of the litigation process, that operate as a default in such a manner as to control the costs recoverable by reference to the amount ultimately awarded. (e.g. loser pays winners costs, capped at 10% of the winners award) This is a matter that can be done in the exercise of the discretion to award costs Not costs chargeable to the client but costs awarded to a successful litigant. The objective is to create cost incentives for parties to narrow the scope of disputation (shorter trial, less costs etc) and to make serious attempts to settle costs can be used as an incentive to decrease overall costs, make parties play a more shorter and efficient game of litigation, and encourage parties to be more serious about settling. Such incentives are already undertaken (as we shall see) in the regime developed for offers of compromise (action can be brought to a close prior to trial its a procedure that court provides whereby plaintiff is prepared to settle for less than what they claimed could reduce time taken in litigation and therefore costs overall,) (which include indemnity costs). There may also be a case for adopting, perhaps arbitrary but definite, amounts or proportions of an award to be recovered as costs, by way of a table of formula which gives results capable of being computed in advance. This has not been done yet and the concern is that is might excite a wave of satellite litigation by way of appeals concerning cost orders.
Example: P sues D 28
Costs
- P agrees with solicitors to pay $400/hr (solicitor own client costs) P wins D (loser) has to pay P (the winner) (party-party costs) - This can be on an ordinary basis (e.g. $100/hr) or an indemnity basis (which would be more due to defendants fault somehow e.g. $200/hr) Overall, if the solicitor performed 100 hours of work - Solicitor own client costs: $40,000 - Party-Party costs: $10,000 Overall, P still has to pay solicitors $30,000 Section 60: Proportionality of Costs 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving 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. What does this mean? T
he CPA pur sua nt to s60 now gives the concept of proportionality of costs legislative force and the scheme of the legislation clearly intends that it is to be applied in conjunction with ss56-59. Cost of dispute resolution must in some manner be proportionate to what is in dispute.
Cases affected by Section 60 - s60 really affects the extent of procedure Zanella v Madden court not requiring certain procedures (to acquire evidence) to
be undertaken
FACTS: - Application in respect of joint tenancy of a property at Glenn Davis. Torrens system land registered in the name of the plaintiff and the defendant as joint tenants. The problem is that the plaintiff now wishes to realise the land, but she has not heard of the defendant for many, many years. What did the evidence show? - The evidence shows that no-one has seen or heard from the defendant since about 1980. He was a person who was over-addicted to alcohol. He lost his position in UNSW, it would seem, over that. He has apparently not been hired by any overseas uni. He would now be 63. He has not been heard of by his friends or anybody with whom the plaintiff suspects might know him for over 20 years. He has taken no interest in his property here. HELD: 8. It may well be that in past times one could have organised advertisements in Scotland, but, when one is dealing with an estate of $37,500, bearing in mind s56 of CPA (should be cheap, quick and fair), the cost of doing so is proportionately too great. It seems to me that on the evidence before me there is sufficient material to show that the court can declare that the defendant is dead. 29
Costs
Accordingly, the court declares that the defendant is dead and gives liberty to apply on two days notice. Vella v ANZ court not allowing a notice to produce to take place FACTS: What did the applications concern? - An application to get certain documents, and other side is resisting producing such documents - An application to have documents produced on a notice to produce bearing date 4 March 2008 directed to ANZ and an application for setting it aside. - At the trial, one of the party wanted to put on a notice to produce HELD: 21. I have said before and I will say again that particularly when one is dealing with a trial of multiple parties which must cost at least $100,000 a day, bearing in mind the provisions of ss5660 of the CPA, the court will not interrupt the trial to deal with late subpoenas or notices to produce. To do otherwise would cause large expenses to innocent parties in the proceedings. Apart from situations where something comes up by surprise, if a notice to produce is not given in the proper time before the trial, it will be very, very difficult indeed for the court to be convinced that it should, at someone elses expense, deal with defaults by lawyers for not getting their cases ready in time. s56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
Duties of Litigants (see s56(3) & (4) above) and costs - Section 56(2): Court must seek to give effect to that overriding purpose when it exercises any power given to it under the Act or by the rules. - Section 56(3): A party to civil proceedings is under a duty to assist the court to further that overriding purpose and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. 30
Costs
Section 56(4): A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified Section 56(5): A court may take into account any failure to comply with s56(3) or s 56(4) in exercising a discretion with respect to costs. In a sense, s56 has the result that every litigant in civil proceedings in this court is now a model litigant not only do litigants have to be honest, they also have to be helpful (similar to Queen as the model litigant.)
Priest v NSW [2007] NSWSC 41 35. I am not satisfied, given the history that I have recited in this judgement, that the defendant has discharged its obligations under s56 CPA 2005, or indeed, under its model litigant obligations with respect to the Category 27 issue (discovery issue)I am satisfied, on the present state of this application, that an order should be made against the defendant with respect to costs. I have in mind, in that regard, the provisions to which I have referred in s56 CPA, and what I regard to be failures on the part of the defendant to comply with its obligations to the court revealed in the approach to this litigation to date. 42. Section 98 CPA (Courts powers as to costs see below) provides that costs are in the discretion of the court. Costs may be ordered on an ordinary basis or on an indemnity basis. In my view, the approach of the defendant to this application to date, and to compliance with orders of the Courts, is such that there has not been just, quick and cheap resolution of the issues falling for determination. Indeed, there has been a continuing inability of the court to discharge its functions because the defendant has not complied with its obligations. I am satisfied, in the circumstances, that the history of this application to date is such that it is appropriate, in the exercise of discretion, to order that the defendant pay the costs of the Plaintiff on an indemnity basis with respect to the Category 27 discovery issue.
Parties and Costs

Solicitor & Clients costs: (What client has agreed to pay the solicitor costs that winner still needs to pay client, even after taking party-party costs into account) - Unless a solicitor agrees to act on a no win no fee basis, the professional fee a client is required to pay is dictated by the contract between the solicitor and client. These are called solicitor and client costs and are fees for which the client is personally liable. Party and party costs: (What loser pays winner) - Party-party costs are the costs the court usually orders one party to pay to another. These PP costs usually only partially indemnify the recipient against the costs that the recipient is contractually obligated to pay to his/her solicitor (solicitor and client costs). - PP costs are those costs that the unsuccessful party must necessarily incur to attain justice and are determined by rules that provide scales of itemised costs chargeable under an order for PP costs, assessed on an ordinary basis or an indemnity bases (which is more generous) 31
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Costs are assessed on an ordinary basis unless the court otherwise orders. Occasionally party and party costs are awarded on an indemnity basis to compensate a party for the misconduct of another. Costs awarded on an indemnity basis allow for all costs incurred except those that appear to have been unintentionally occurred.
98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
3 Definitions "ordinary basis" - in relation to the assessment of legal costs that a court has ordered to be paid, means the basis of assessing costs set out in section 364 (1) and (2) of the Legal Profession Act 2004 . Section 98 CPA - provides the court with unlimited power to determine costs in a proceeding. The power is discretionary and subject to the rules of the court. Costs against non-parties No prohibition against making costs orders in favour of a non-party. General law principle: costs order should only be made against a party to the proceedings. However, a reasonable and just costs award against a non-party could be justified in exceptional circumstances. E.g. In the case of nominal parties or next friends [needs leave of the court to appear (not a party), but if they do something wrong, the cost orders are broad enough to made on them], where a person who is non-party is closely connected to the proceedings, or when a person appears in the proceedings in a specific limited purpose, such as to maintain a claim of privilege or to obtain a costs order. CPA s98 is broad enough to provide power to make costs orders against non-parties.
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Uniform Civil Procedure Rules 2005 r42.27 Attendance (1) If: (a) a person is ordered by the court, by subpoena or otherwise, to attend court: (i) for the purpose of giving evidence, or (ii) for the production of any document or thing, or (iii) to answer a charge of contempt, or (iv) for any other purpose, and (b) the person fails to attend in accordance with the order, the court may order the person in default to pay any costs occasioned by the default. (2) If: (a) a corporation is ordered by the court, by subpoena or otherwise, to produce to the court any document or thing, and (b) the corporation fails to produce the document or thing in accordance with the order, the court may order the corporation to pay any costs occasioned by the default. (3) This rule does not limit the power of the court to punish for contempt.
s98 however must be read in conjunction with UCPR r42.3 which indicates that aside from making costs awards against persons or corporations who are ordered by the court, by subpoena or otherwise, to attend for the purpose of giving evidence, or producing documents or things, or for any other purpose (r42.27), costs orders may not be made against non-parties. r42.3(2) thereafter provides a list of exceptions indicating those non-parties against whom the court has power to make costs orders. Importantly one of those exception are court officers including solicitors and barristers even if they arent parties to actions, they can have costs orders made against/for them
Lawyers and costs - The CPA and the LPA 2004 (NSW) provide for costs to be ordered against a legal practitioner personally. - It is to be noted that s56(4) CPA provides a statutory duty on every legal practitioner not to conduct him or herself so as to cause his/her client to breach the clients duty to assist the court. Legal Profession Act 2004 347 Restrictions on commencing proceedings without reasonable prospects of success (1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice. (2) A law practice cannot file court documentation on a claim or defence of a claim for damages
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unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. (3) Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification. (4) In this section: "court documentation" means: (a) an originating process (including for example, a statement of claim, summons or crossclaim), defence or further pleading, or (b) an amended originating process, defence or further pleading, or (c) a document amending an originating process, defence or further pleading, or (d) any other document of a kind prescribed by the regulations. "cross-claim" includes counter-claim and cross-action.
348 Costs order against law practice acting without reasonable prospects of success (1) If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the practice or of a legal practitioner associate of the practice responsible for providing the services: (a) an order directing the practice or associate to repay to the party to whom the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party, (b) an order directing the practice or associate to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified. (2) The Supreme Court may on the application of any party to proceedings on a claim for damages make any order that the court in which proceedings on the claim are taken could make under this section. (3) An application for an order under this section cannot be made after a final determination has been made under this Part by a costs assessor of the costs payable as a result of an order made by the court in which the proceedings on the claim concerned were taken. (4) A law practice or legal practitioner associate of the practice is not entitled to demand, recover or accept from a client any part of the amount for which the practice or associate is directed to indemnify a party pursuant to an order under this section. - i.e. you cant recoup any personal costs order by tapping your client
349 Onus of showing facts provided reasonable prospects of success (1) If the court (the "trial court") hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success. (2) If the Supreme Court (when the Supreme Court is not the trial court) is satisfied, either as a result of a finding of the trial court or otherwise on the basis of the judgment of the trial court, that the facts established by the evidence before the trial court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a
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presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success. (3) A presumption arising under this section is rebuttable and a person seeking to rebut it bears the onus of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success. (4) A law practice or legal practitioner associate of the practice may, for the purpose of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the law practice or a legal practitioner associate of the practice and a client, but only if: (a) the client is the client to whom the legal services were provided or consents to its disclosure, or (b) the court is satisfied that it is necessary for the law practice or associate to do so in order to rebut a presumption arising under this section.
Section 347-349 LPA and Section 99 CPA In addition, s347 of the LPA requires a legal practitioner, before filing a pleading (either on Statement of Claim or Defence), whether for a plaintiff or for a defendant, to certify that, there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence has reasonable prospects of success. Costs sanctions in s348 LPA and s99 of the CPA reinforce the traditional professional obligation of legal practitioners that they must not permit the commencement or continuance of baseless proceedings. Argument: now theres a requirement of reasonable prospects of success, not just not baseless proceedings raising of the bar? The court relies on legal practitioners, either directly or by giving appropriate advice to a client, to observe listing procedures, rules and court directions, to ensure readiness for trial; to provide reasonable estimates of the length of hearings; to present written submissions on time and to give the earliest practicable notice of an adjournment application. Failure in any of these respects may be taken into account in exercising the jurisdiction to order costs against legal practitioners personally. In appropriate cases, particularly those involving repeated defaults, the court may refer an incident or incidents of default to the Law Society, Bar Association or the Legal Services Commissioner. s348 of the LPA applies where legal services were supplied in a claim for damages without reasonable prospects of success A costs award pursuant to this section could require the legal practitioner to repay costs to a party who received the legal services in the proceedings (the client) or indemnify any party other that the party to whom the services were provided against costs payable by the indemnified party s349 places the onus of proving the facts to support a reasonable belief that a claim or defence had a reasonable prospects of success on the legal practitioner 35
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Why might the adversarial nature of court proceeding be problematic now that costs can be ordered against legal practitioners? - Lawyers pursue clients less fiercely - If a lawyer misjudges the action, there may be a limitations action and the solicitor wont have the time to find out all the facts to determine whether you have all the facts solicitor might have to issue the SoC or he/she will be statute barred even if it was a hopeless claim, client can sue you for negligence! Its hard to judge prospects of success. What if the judge assesses the situation incorrectly? - The court may not know the whole story - Might even be LPP (legal professional privilege) issues such that solicitors cant disclose certain things and client is unwilling to forgo this privilege. What can be done to ensure fairness? - Court can be really conscientious and look into the detail from the legal practitioners perspective to see whether there were prospects of success See Firth v Latham for the detailed analysis that the court undertook to determine whether a costs award against a legal practitioner should be made Looks in detail and from LPs perspective, and up to which point LP was caught up Costs award was made against LP Another thing can be done is by reference to Practice Note SC Gen 5 Costs Orders against Legal practitioners:
Practice Note SC Gen 5 Costs Orders against Legal Practitioners - Where the court is minded to make a costs order against a LP personally: A practitioner will be given an opportunity to show cause why costs should not be ordered against him/her; (fair/natural justice) With the consent of the practitioner, the court may take the show cause submission orally at the conclusion of any trial, application or other appearance before the court; The court may adjourn the matter to another day or date to be fixed, and may direct the practitioner to provide written submissions to the court within a period specified by the court; The court may further direct that the matter proceed by written submissions and by reference primarily to the materials that were before the court during the proceedings to which the cost orders relate. If it will assist the court, the other parties to the proceedings may be directed or invited to make submissions in relation to the question of costs of any ancillary matter; If a practitioner informs the court that he has requested his or her client to waive legal professional privilege in a respect which the practitioner asserts is relevant to the courts consideration of the costs order, the court will invite the client to make submissions on the matter and to indicate whether the client wishes an order to be made against the practitioner. 36
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Upon a determination by the court that a LP shall be personally liable for the costs of a party to the proceedings or any part thereof and such costs are ordered to be payable forthwith, the court may order that a bill of costs relevant to the costs orders be filed with the court and served on the party liable to apply within such time as the court orders
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Civil Procedure Act 2005 99 Liability of legal practitioner for unnecessary costs (1) This section applies if it appears to the court that costs have been incurred: (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner , or (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. (2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following: (a) it may, by order, disallow the whole or any part of the costs in the proceedings: (i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or (ii) in the case of a solicitor, as between the solicitor and the client, (b) it may, by order, direct the legal practitioner: (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs, (c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. (3) Before making such an order, the court may refer the matter to a costs assessor (within the meaning of Part 3.2 of the Legal Profession Act 2004) for inquiry and report. (4) The court may direct that notice of any proceedings or order under this section with respect to a legal practitioner be given: (a) in the case of a barrister, to the instructing solicitor or client, or both, as the court may direct, or (b) in the case of a solicitor, to the client. (5) The court may give ancillary directions to give full effect to an order under this section, including directions to a legal practitioner to provide a bill of costs in assessable form: (a) to the court, or (b) to a party to the proceedings, or (c) in the case of a barrister, to the instructing solicitor or client, or both, or (d) in the case of a solicitor, to the client. (6) A party's legal practitioner is not entitled to demand, recover or accept: (a) in the case of a barrister, from the instructing solicitor or client, or (b) in the case of a solicitor, from the client, any part of the amount for which the legal practitioner is directed by the court to indemnify any party pursuant to an order referred to in subsection (2) (c). (7) In this section, "client" includes former client.
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Section 99 CPA - Liability of legal practitioner for unnecessary costs s99 of the CPA provides costs to be ordered against a legal practitioner, where costs have been incurred by reason of serious neglect, serious incompetence, serious misconduct or serious impropriety. But one of the difficulties for a court when applying the test set out in these authorities is in making an assessment as to whether it is the solicitor or client that is the real cause of the problem. This is exacerbated in that legal professional privilege may prevent the lawyer from informing the court of what truly happened . Without the clients release, the lawyer may well be unable to give the court full information.
Whyked Ptd Ltd v Yahoo!7 Pty Ltd FACTS: Yahoos claim against the solicitor is brought pursuant to s99 of the CPA and r42.3 of UCPR. HELD: - 3. A LP may be ordered to pay costs occasioned by his / her serious neglect, incompetence or misconduct or incurred improperly or without reasonable cause in circumstances for which he is responsible. - 4 Although Yahoo relied on both limbs of s99(1)(at the end they were really talking about (a) the serious incompetence, serious neglect part of the section.) - 5 In those circumstances, the essential issues for decision can be stated as follows: (1) Did yahoo incur costs in defending the litigation because of the serious neglect, incompetence or misconduct of the solicitor? If yes, should the court direct the solicitor to indemnify yahoo against the costs so incurred. Improper means any significant breach of substantial duty imposed by a relevant code of professional conduct. But it is not in our judgement limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. Unreasonable also means conduct which is vexatious, designed to harass the other side rather than to advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so the course adopted may be regarded as optimistic and as reflecting on a practitioners judgement but it is not unreasonable. Negligence- failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted 39
Costs
to do; an error such as no reasonably well-informed and competent member of that profession would have made. Even if the court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, it is not bound to make an order, but in that situation it would of course have to give sustainable reason for exercising its discretion against making an order. The justification to order costs against a LP personally is one to be exercised sparingly, because among other things, the court would not always know all the details in circumstances of the practitioners instructions. Thus, for the jurisdiction to arise, the conduct must involve some serious dereliction of duty or gross negligence. 184. I dont think that the exercise of the power given by s99 CPA should be undertaken in such a way as to deter LP from advancing difficult cases, or from accepting instructions from impecunious clients. As a matter of general policy, someone with a case that is not manifestly hopeless should not be denied the opportunity to litigate it: see, in a different but analogous context, the well known decision in General Steel Industries v Commissioner for Railways.
The purpose of costs - Party-party costs rarely cover the totality of costs that the winner has to pay. Costs only compensate the successful party for the solicitors professional costs in conducting the case. Costs do not compensate the litigant for lost time/travel expenses. Costs are not awarded as a dividend or as punishment. - However, costs can be used as an encouragement to comply with the rules or any judgement or order e.g. UCPR r 42.10 provides the court with power to order a party who does not comply to pay such of the other parties costs as are occasioned for the failure. Dr Bronte Douglass v Lawton Pty Ltd (No2) - One of the parties wanted an adjournment they wanted to amend their SoC. Trial Judge said they shouldve been more organized and done this way before the hearing date, so she punishes them with a nasty costs order. Party ordered to pay appeals to the CA claiming that costs arent to punish! But TJ clearly indicated the costs to be a punishment. FACTS: - Summons for Leave to Appeal against an order that the appellant to pay the costs of the respondent which were thrown away by reason of an adjournment of the proceedings when first listed for hearing. - On the first day of the hearing the appellant made an application to amend the defence that took most of the day. TJ said *Counsel for the appellant+ is going to have an uphill battle persuading me that he shouldnt be facing a very large costs o rder if I have to adjourn the caseits disgraceful that theyre bringing it *amendment application+ on the *day+ of a trial and they should be punished firmly by a nasty costs order.7 - It was submitted that the discretion cannot be exercised capriciously and that costs are not imposed by way of punishment. HELD: 40
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The primary purpose of an award of costs was to indemnify the successful party. That statement was made in circumstances where the Court was dealing with concluded litigation. However, the underlying principle remains valid for all costs orders. Consider that her Honours statements should be seen as no more than throw away comments made during the course of an application which was clearly going to cause hearing and/or listing difficulties. In those circumstances, I am of the opinion that leave should be refused on this aspect.
Specific Cost Orders Normally costs follow the event i.e. loser pays the winners costs Variations to this: - No order as to costs this means that no party is awarded costs against another and each party bears it own costs - Costs in any events the party who is ordered to pay the costs is responsible for those costs irrespective of the outcome of those proceedings, where without another specific order, costs would follow the event. - Costs thrown away which are costs that are wasted because of one partys error or failure to comply with a court direction or rule of court - Costs in the cause concerns the costs of an interlocutory application. Costs in the cause become part of the final costs of the proceedings and are paid by the party who ultimately bears the costs of the proceedings unless the court orders otherwise.
s98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
Costs follow the event the usual costs order Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runff Ltd (formerly GIO insurance Ltd) costs follow event what about when winner wins on some issues, but loses on other? When will costs be awarded on an indemnity basis? A party may no longer put another to the proof of a fact which the first knows is true without a costs penalty when the party put to proof establishes the fact 41
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The usual order is that costs follow the event (although there is no absolute rule to that effect its all discretionary): Oshlack v Richmond River Council (1998) 193 CLR 72, per McHugh J at [63-67]. The position will be otherwise if it appears to the court that some other order ought be made as to the whole or any part of the costs
10. The effect of UCPR r42.1 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. Special circumstances are generally required to justify some other order being made. - e.g. P sues D via 2 actions (contracts and negligence) win contracts but lose negligence costs follow the event and loser pays the winner, despite fact that P lost on negligence action 11. Unless a particular issue or groups of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which it failed - (back to e.g.) all the evidence will probably intertwine, therefore difficult to pick out which costs relate to contracts or which to negligence so court doesnt attempt to differentiate unless issues are clearly dominant / separable 12. Whilst the general principle is that an ultimately successful party ought not to be put at risk as to costs merely by having relied upon additional issues upon which it did not succeed (on the basis that the ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case), a successful party may only get a proportion of its costs if the unsuccessful party is able to identify clearly dominant or separable issues lost by the successful party. 14. The court has power to award indemnity
costs under s98(1)(c) of the Act
17. The HC in Oshlack at 89, 90 (Gaudron and Gummow JJ) recorded that indemnity costs were appropriate where the case involved some relevant delinquency on the part of the unsuccessful party e.g. - Evidence of particular misconduct that causes loss of time to the court and the other parties; - The fact that the proceedings were commenced in wilful disregard of known facts; - The making of allegations that ought never to have been made or - The undue prolongation of a case by groundless contentions; 19. s56(5) of the Act expands the circumstances in which an indemnity costs order may be made 20. In order to establish a basis for an indemnity costs order, it is necessary to establish by evidence relevant delinquency, abuse of process, ulterior purpose or unreasonable on the part of BHE. 21. Evidence of unreasonable conduct on the part of the party ordered to pay costs is usually required: Rosniak 42
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23. The mere fact that a party fights the proceedings fiercely and that no stone is left unturned is not a ground for a special costs order 24. The mere fact that a case has been found to lack merit cannot be a basis for a special costs order 25. Prolonging a trial by litigating issues which are known to the unsuccessful party not to be real issues, in breach of s56 of the Act is capable of constituting relevant delinquency. s56(5) would, in an appropriate case, permit this form of delinquency to be taken into account in the courts exercise of its discretion to award costs. Depending always upon the precise circumstances, the Court has power to order indemnity costs against an unsuccessful party whose conduct has breached s56
27. Gordian (the respondent) contended as follows: (i) The Court is vigilant to ensure that successful parties who incur additional costs in litigating issues which would not have been litigated had only the real issues in dispute been litigated, should be effectively compensated for the costs incurred, otherwise an innocent party will bear the costs of the wrongdoers delinquency. (ii) Parties who choose not to litigate the real issues should do so at their own cost. 28. These submissions may be accepted subject to an important rider, namely the need to accept that in any particular set of proceedings, the parties are of course entitled, in good faith, to litigate issues reasonably believed at the time to bear upon the real issues.
Equation used for payment of costs

Hypothetical FACTS: I want wall built in my garden and go to an engineer about this wall. Big water feature etc. Engineer does specs for it. Goes to builder to build wall to specs of the engineer. Neighbours child playing in my backyard and wall falls down and kills her. (G ets us in to Supreme Court). I decide to sue the engineer and the builder. On trial turns out engineers plans were crap. I win as against the engineer but builder just built it. I lose as against the builder. P D1 - builder (builder is successful) D2 engineer (engineer is unsuccessful) If costs follow the event, (loser pays the winners costs) D2 P (D2 will have to pay Plaintiff) P D1 (Plaintiff will pay D1) Variations to this rule: - Sanderson and Bullock order Nationwide News P/L v Naidu; ISS Security P/L v Naidu (No 2) FACTS: 43
Costs
P (Naidu) sued ISS (D1 - successful) and Nationwide (D2 - unsuccessful) ISS is entitled to receive its costs of the trial. The question is who should pay them. Pursuant to Sanderson order, the unsuccessful defendant, namely Nationwide, may be ordered to pay the costs of the successful defendant, namely ISS.
15. It is well established that such an order may be made where 2 preconditions are
satisfied: 1. it was reasonable for the plaintiff to proceed against the successful defendant, 2. that the conduct of the unsuccessful defendant made it fair to impose liability on it for the costs of the successful defendant: see Gould v Vaggelas (1985) 157 CLR 215 at 230 (Gibbs CJ) these preconditions are for both Sanderson and Bullock orders
16. Those preconditionsoperate where the costs are required to be paid directly by one defendant to the other (in the case of a Sanderson order) or indirectly, where the plaintiff is ordered to pay the costs of the successful defendant, but is entitled to recover his or her costs, including those paid to the successful defendant, from the unsuccessful defendant ( Bullock order). - Bullock: - indirectly P to D1, but can recover costs from D2 P D1 (plaintiff pays the builders costs) D2 P + D1 (engineer pays the plaintiffs costs and reimburses the P for the builders costs) - Sanderson: - directly from D2 to D1 D2 D1 D2 P - i.e. D2 pays both costs (P and D1) but order of payment differs
Preference of costs orders - If unsuccessful defendant (D2) has no money, P would prefer Sanderson (whilst D1 prefers Bullock). Under Bullock, P has to pay D1 without getting reimbursed, but under Sanderson, its up to the other defendant (D1) to wrestle costs out of the unsuccessful defendant (D2). - When the unsuccessful defendant (D2) is poor the choice of a Bullock or Sanderson order is important. If D2 is poor, it is to the advantage of D1 to receive a Bullock order because the plaintiff pays the successful defendants costs directly and the plaint iff must attempt to recover those costs as well as his own costs form the impecunious unsuccessful defendant (D2). The plaintiff on the other hand would prefer a Sanderson order.
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Alternatives to Litigation
Class 4: Alternatives to Litigation
(Chapter 4)
Growth of ADR attributed to the difficulties that litigants have with accessing justice in the adversarial system of litigation. Disadvantages of the adversarial system such as delay and cost support the use of ADR List of advantages and disadvantages pg 106
Types of ADR Process Four categories of dispute resolution process: i. Facilitative assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute ii. iii. iv. Advisory considers and appraises the dispute and provides advice Determinative evaluates the dispute and makes a determination Hybrid plays multiple roles
MEDIATION
Mediation is the most widely used form of ADR A facilitated negotiation aimed at reaching agreement Mediator directs process but no advisory or determinative role Not appropriate where there is a power imbalance between the parties and there is a danger that such an imbalance will be replicated in the mediation CPA permits the court to make orders for compulsory mediation and/or arbitration
CPA s25 34
Higgins v Higgins
Facts: P applied to the Supreme Court for an order for compulsory mediation opposed by Ds HELD: Mediation was ordered Waterhouse v Perkins Facts: D sought an order for compulsory mediation HELD: Rejected the statement that ADR cannot give vindication 45
Alternatives to Litigation
ARBITRATION
S38 CPA & UCPR r 20.8
Dispute is submitted to a third party (an arbitrator) who renders a binding determination (an award). The jurisdiction conferred on an arbitrator is part of the jurisdiction of the court
s37
Award records determination and reasons in writing and is signed s39 If no rehearing, then the award is final and conclusive and is taken to be a judgment of the referring court s40 Dissatisfied party can apply for a rehearing ss42-47 Application for rehearing s42 and UCPR r 20.12. Takes place before a judge Costs can be ordered against a part who makes a tactical decision not to call available evidence at the arbitration that is then called at a hearing court can order costs against that party. Quach v Mustafa.
Court can order whole or part of the proceedings to be referred to a referee for
determination. Further ADR reforms
UCPR 20.13 10.24
Concluded that Mediation is most commonly proposed by courts Different dispute resolution mechanisms may be suitable for different matters depending on their size, complexity and importance. Enhanced use of ADR and more widespread availability of different options will enable courts to manage certain litigious disputes more effectively and efficiently Some further options list pg 138. Also 130.
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Before a Civil Action Commences

Class 5: Before a civil action commences (Chapter 4 omit 5.20-5.200; 5.270-5.340) Issues to be considered before launching an action Before launching a civil action, it is important for the prospective plaintiff to consider a number of issues: - The cause of action/s and remedies. Parties will need to evaluate the facts to determine whether the facts give rise to a cause/s of action and the evidence that is required to prove the claim. - The disadvantages of litigation need to be carefully considered before commencing court proceedings. time consuming and costly impacts on business relationships and can strain personal ones. inherent risks, e.g. witnesses may not come up to proof at the trial. (expectation of
witness to say something but they dont give that evidence you dont cross-examine your own witness, so aspects of your claim will lack evidence.)
there can only be one winner at the end of the litigation. Whether the party has the funds to litigate the matter and the consequences that may eventuate should the party not succeed in the litigation are also important factors to consider (never sue someone who has no money). The prospective plaintiff will need to investigate whether the potential defendant has assets to satisfy the judgement. There is no point litigating unless the defendant can satisfy any judgement debt. The prospective plaintiff should investigate whether the dispute can be resolved without litigation. It is customary for the aggrieved plaintiff to send a letter of demand before commencing proceedings. However, early dispute resolution such as mediation may also be of great benefit.
Potential issues even before commencement of proceedings

(Prior to filing the originating process) eg. Jurisdictional issues, preliminary discovery issues, interim preservation orders 1. Private International Law which location? PROBLEM: - Plaintiff, a resident of NSW is badly injured by car driven by defendant, a Ukrainian, while both are on holiday in Bourke. - Plaintiff wants to litigate the cause of action in NSW, and defendant wants to litigate in WA where he has moved recently. - Where should the claim be litigated? Whats acknowledged it that its the plaintiffs action plaintiffs cause of action determines the forum Court will only allow a change of forum if court concludes that forum in which plaintiff started the action is clearly inappropriate (Voth) - If the originating process is served validly under UCPR, NSW court has jurisdiction. - Willing to hear the claim? 47

Importance is given to plaintiffs choice of forum traditional approach is to give effect to plaintiffs choice unless clearly unreasonable Factors to be considered: where accident occurred, location of witnesses, parties economic capacity is there any legal aid available; whether resident in Australia. Is plaintiffs choice of court a clearly inappropriate forum (Voth v Manildra Flour Mills) determines whether or not the plaintiffs choice of forum is the one where the action will be litigated N.B: This is quite different for cross-vesting issues. Voth is for private international issues Cross-vesting choice of forum uses a different test
2. Cross-vesting legislation which court?

The legislation was formed in response to problems that developed where litigation were unable to have all disputed issues determined in the one court e.g. an incident could give rise to claims for breaches of federal legislation and the common law The prospective plaintiff, before cross-vesting legislation, would be required to litigate claims in a State court and in the Federal Court Re Waikim; Ex parte McNally (1999): constitutional validity of the cross-vesting legislation was challenged and a part of the scheme was held to be invalid. The HC held that the scheme was invalid to the extent that it gave State jurisdiction to federal courts. Put another way, State Acts cannot confer jurisdiction in State matters on the Federal Court and Family Court. However, the provisions of the Jurisdiction of Courts (Cross-Vesting) Act relating to conferral of federal jurisdiction in state courts authorised by Ch 3, the conferral by the States of jurisdictions in State matters on courts of other states and territories, and the provision of transfer of proceedings in such courts survived. The cross-vesting scheme was amended after Waikim and now only provides: Conferral of federal jurisdiction on State courts (s4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Cross-vesting of State jurisdiction among state courts Transfer of proceedings between courts participating in the scheme Test used to determine whether a transfer will occur under the cross-vesting scheme is: Which court is the appropriate court in the interests of justice?
Transfer Decisions - Relevant issues: Whether related proceedings are in another court Whether chosen court would have had jurisdiction but for the cross-vesting scheme; Whether the interpretation of a Cth law or State law of another jurisdiction is an issue 48

Whether transfer would be in the interests of justice. - No appeals from a transfer decision can only get to an Appeal Court in another way e.g. judge sends matter to Court of Appeal on judges own motion; Constitutional issue for appeal to HC (like in BHP Billiton) - BHP Billiton v Schultz confirmed approach in Bankinvest AG v Seabrook that it is a nuts and bolts management decision whether to transfer, not an application of principles of private international law - N.B. private international law principles laid down for Australia were in Voth v Maildra For private international law, plaintiff can choose the forum, but court will decline to hear it (stay) if the choice to the plaintiffs forum is clearly inappropriate Favourable to Plaintiff No such bias for the plaintiff in cross-vesting transfer decisions e.g. BHP v Schultz (majority held that the plaintiffs matter should be transferred to SA because its the place where the tort happened, where the plaintiff lives (this was despite the fact that he initiated the action in NSW Dust Diseases Tribunal) BHP Billiton v Schultz cross-vesting transfer decision FACTS: - Plaintiff lived in SA and worked there for BHP during exposure to asbestos. He sued BHP and other manufacturers and suppliers of asbestos in the NSW Dust Diseases Tribunal because there was a procedural advantage that it offered a chance for further damages later if he develops a second dust-related disease (s11A). - BHP applied to move action to NSW SC so BHP could apply for its power of cross-vesting transfer to SA SC. NSW SC judge (TJ) refused this transfer. - No appeal from transfer refusal, but BHP appealed directly to HC via the Constitution s73(ii) which gives HC power to hear an appeal from all judgements of Supreme Courts. HELD: (HC) - Unanimously confirmed that Bankinvest, not Voth, is the test for decisions concerning cross-vesting. (Bankinvest does not give preference to plaintiffs choice of forum whilst Voth gives preference to plaintiffs choice of forum.) - By majority, HC ordered transfer to SA SC. Why? - Private international law differs as between England and Australia. England Spiliada test - whether another court is the appropriate forum. Australia Voth test - whether the plaintiffs choice is a clearly inappropriate forum. Gives emphasis on plaintiffs right to choose the forum unless clearly inappropriate. - Different for cross-vesting decisions. Bankinvest said it should be a nuts and bolts management decision as to which court is more appropriate in the interests of justice. There are different issues in a cross-vesting decision - court is not refusing to hear a case, but deciding which is the best court. - HELD: Plaintiffs choice of forum may be for good or minor reasons (15). The plaintiffs reasons for his/her choice may be balanced by defendants disadvantage. In such a case, justice may not indicate a preference for the interests of either party. Its often clear but sometimes evenly matched. (19) - There were 2 reasons given by TJ when he refused the cross-vesting transfer: 49

1. Plaintiffs choice of forum is not likely to be over-ridden looks like a Voth decision rather than Bankinvest; 2. Particular procedural advantages for the plaintiff of s11A in Dust Disease Tribunal In response to TJs first reason (about not lightly over-ridden stuff) HC held that it was misconceived dont start with any presumption as to where the interests of justice might come down. (26) In response to TJs second reason (Plaintiffs procedural advantages) It isnt relevant if advantage to plaintiff is cancelled out by disadvantage to defendant. All judges said TJ misconceived the law (29) (they used the Voth test rather than the Bankinvest test) Court divided 4/3 on whether should be transferred to SA majority said should be SA.
3. Preliminary Discovery
An order of preliminary discovery is usually made before the commencement of proceedings. The rules can enable the applicant to obtain an order for: Discovery to ascertain a prospective defendants identity or whereabouts (UCPR r5.2) Discovery to ascertain whether there is cause of action (UCPR r5.3) Discovery on non-parties (UCPR r5.4) An order for preliminary discovery can require documents to be produced and or a person to be orally examined in court or indeed both. An applicant can determine the identity and whereabouts of a prospective party to be sued and/or whether an action should be brought.
r5.1 Definitions In this Part: "applicant" means an applicant for an order under this Part. "identity or whereabouts" includes the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.
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r5.2 Discovery to ascertain prospective defendants identity or whereabouts (1) This rule applies if it appears to the court that: (threshold requirements for such an order) (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, (intention to sue) 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 must give discovery to the applicant of all documents that are or have been in the other persons 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 persons possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar. (4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required. (6) If the other person incurs expense or 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. (8) An application for an order under this rule is to be made: (a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or (b) in any other case, by summons. (9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.
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E.g. PROBLEM: X wants to commence an action against a taxi drier Y for negligence causing injury. X knows the rego number of the cab, but doesnt know who was driving. What procedure can be used? r5.2 to find out who the driver was from the taxi company, or RTA.
RTA v Australian National Car Parks Pty Ltd FACTS: People parked in a carpark but didnt pay their fee. People who own carpark has CCTV footage of them but doesnt know identity of the drivers. Carpark has their rego numbers but no drivers. HELD: 11. The application must be made on notice to the person perceived to have the information (RTA) (r5.2(7)(b)) and be supported by an affidavit stating the facts on which the applicant relied and specifying the kinds of information, documents or things in respect of which the order is sought (r.5.2(7)(a)). 12. r5.2(1)(a) implies that the applicant intends to sue the person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery (Re Application of Cojuangco (1986) 4 NSWLR 513). This does not mean that such intention must be immutably fixed or unqualified, but you have to say I intend to sue him. 13. The rules predecessor in the Supreme Court was amended in 19 74 to eliminate a requirement that the applicant establish a prima facie case against the intended defendant, but that issue is relevant to the exercise of discretion (Stewart at 139-140; Levis v McDonalds (1997)) 14. r5.2(1) effectively states two threshold requirements. First, the applicant must be unable sufficiently to ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries . What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (e.g. resort to the FOI Act) does not in itself make it unreasonable to claim an alternative remedy under the rule (see Hughes Aircraft Systems International v Civil Aviation Authority (1995)). The cost, delay and uncertainty of alternative measures are relevant to the rules reasonable inquiries component there may be other ways to find this information but it may take a long time and be really costly. You can make an argument that theyre not reasonable inquiries. 15. Secondly, the applicant must show that the respondent to the application 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 prospective defendant. Identity or whereabouts is given an extended definition in r5.1 to include: the name, the place of residence, registered office, place of business or other whereabouts, and occupation and sex, of the person against whom the applicant desires to bring proceedings, and also, whether that person is an individual or a corporation. 16. The appellant correctly submits that the information documented or thing thats sought must itself have the requisite tendency in ascertaining identity or whereabouts. However the words may and tends to assist show that the applicant does not have to establish in advance that the desired information, document or thing will necessarily reveal the identity or whereabouts of 52

the prospective defendant. So too do the consequential powers in r5.2(2) being powers to order a person to attend for examination as to the identity and whereabouts of the intended defendant or to give discovery of documents that relate to it. RTAs argument to resist this order: could go to FOI Act and we could tell you who owned the car. What objection did the RTA make to providing the rego number of the cars that had parked without paying the fee? 23. The RTA submits, correctly, that r5.2(1)(a) makes it plain that the person concerned must be the person against whom the applicant intends to commence proceedings. And the RTA is also correct in its submission that the rule requires the information, document or thing itself to tend to assist in ascertaining the identity or whereabouts of that intended defendant. The RTA submits that the assistance hypothesised is assistance to the applicant as a potential litigant and not assistance to the court per se and he says I agree 24. But the RTA seeks to go further, submitting that the information in its register goes no further than identifying a potential witness or someone who may be able to assist the applicant with its inquiries. (They tried to argue that that stands outside the threshold requirement) 27. Whether or not a court trying a civil claim could infer the identity of the driver of the vehicle on the day in question from this information alone, (and I imply no view either way on that matter) the information would certainly assist the respondent in its task of establishing the driver on the day in question.
Use r5.2 to find out who they are, where they are Use r5.3 to find out whether or not you have an action against them
Use r5.3 to find out whether or not you have an action against them r5.3: specifically regarding information you get from the person you want to sue in order to determine whether you have an action.
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5.3 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. (2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation. (3) Unless the court orders otherwise, an application for an order under this rule: (form; what you have to do) (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 (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. (4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings. (Where an action has already started and you want to bring somebody else into the action.)
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Panasonic Australia P/L v Ngage P/L FACTS: Breach of confidentiality agreement Plaintiff wants to find out whether theres enough for him to sue the prospective defendant HELD: 20. The purpose of the present proceedings, all that the plaintiff need show is that the contemplated proceedings are likely to rest on some recognised legal ground and does not necessarily have to show a prima facie or pleadable case so long as there is reasonable cause to believe that the applicant may have a right to obtain relief in the court, its mere assertion that there is such a case being insufficient. map out the circumstances and see whether a kind of action can be established no need for establishing a prima facie case, just whether theres a reasonable basis for the action merely asserting that you have an action is insufficient, you need to map out the circumstances.
27. Although theres some suggestion in the judgement of Palmer J in Cairnes v Unicomb [2005] NSWSC that a prima facie case has to be shown, it seems to me that the general flow of decisions in the Federal Court, see Paxus, is that what one looks for is to see if there is reasonable cause to believe (not reasonable cause to suspect) that the applicant may have a right of action against the respondent.
29. There are passages in the Federal Court decision which suggests that the rule is remedial legislation designed to amplify the courts power to penetrate obscurities and uncertainties are not to be beneficially constructed (Paxus case at 733) Burchett J said in the Paxus case that being an old litigator, it gives me the shivers with these kind of procedures but I have to go with the flow because were in a different age now. 30. Applying the test of reasonable cause to believe that an applicant may have a right of action, it seems to me that with respect to the confidentiality cause of action, there is sufficient evidence here to justify an order. 33. The next question is whether the plaintiff has made reasonable enquiries, but despite these, it has been unable to obtain sufficient information. The evidence shows that the information has been requested and refused. The next matter is whether the prospective defendant may have possession of documents or things that can assist the determination as to whether the plaintiff is entitled to make a claim for relief. In my view, that is satisfied on the material before me and finally, I am satisfied that inspection of such document would assist the plaintiff in making a relevant decision. 34. Accordingly, Ill make the order.
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35. I might add that it would seem to me that this section not only covers information as to the evidence required to prove a cause of action, but also covers material as to the possible worth of the prospective defendant. This is because most sensible people when considering whether to commence action do not usually sue if, even despite assurance by their lawyers of 100% chance of success, the probabilities will be that they will pay out money for legal costs yet make a nil recovery. (r5.3 even allows you to find out how much the person you want to sue it worth!) 37. I then need to turn to three matters: 38. (a) Whether I should exercise my discretion to make an order; It seems to me that the rule sets out a series of circumstances where as a matter of policy the plaintiff is given some right to obtain information. It may be in certain cases that the prospective defendant can put forward material such as commercial sensitivity (trade secrets real issue e.g. chocolate shop and their chocolate recipe) which would make the court exercise its discretion against making the order the plaintiff seeks. However, in a case where the defendant does not appear to contest the order and puts forward no such material then it would seem to me to be seldom that the court would refuse in its discretion to make an order where the plaintiff has demonstrated a need. Such is the present case. 39. (b) Whether I should make it subject to conditions; The rules provide for security to be given under r5.6 and r5.8 for an applicant to provide for the conduct money and expenses for the defendant. 41. (c) What order, if any, should I make for the costs of this application. P seeks costs. A general rule that if there is a contested application, then costs follow the event. The present case is a borderline case: the plaintiff receiving an advantage. In my view, the proper order for costs is that the costs of this application be the plaintiffs costs in any proceedings that are commenced as a result of the discovery. r5.6 Security for costs An order under this Part may be made subject to a condition requiring the applicant to give security for the costs of the person against whom the order is made.
r5.8 Costs and other expenses (1) On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings. (2) The costs in respect of which such an order may be made include: (a) payment of conduct money, and (b) payments made on account of any expense or loss in relation to the proceedings, and (c) the costs of making and serving any list of documents, and (d) the costs of producing any documents for inspection, and (e) the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.
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Discovery of Documents from other persons

Rule 5.4: discovery of documents from other persons (1) The court may order that a person who is not a party to proceedings, 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, 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. (2) 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(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed
Civil litigation has usually taken the view that you shouldnt burden anyone not involved in the action o Therefore r5.4 not likely to be applied widely o Only likely to be used if there is something in the relationship between the non-party and a party such that it is considered appropriate to subject them to discovery obligations r5.4 is a kind of extension in requiring a non-party to provide information. Subpoena: require specific documents to be produced whereas for discovery this degree of specificity is not required o r5.4 is used to overcome the specificity of a subpoena
Richardson Pacific v Finding (1990 FC) FACTS: - Discovery under O 15A sought against a non-party with a close relationship to the party - Non-party provided party with machinery and equipment with payment being delayed indefinitely; extended back to when party employed by the other party. HELD: Order intended to overcome limitation of subpoena to relevant documents (i.e. had to identify what you wanted with specificity) Traditionally didnt want to burden a non-party. But purpose is quite expressly to enable discovery to be obtained in some cases where any thing less than the broad obligations imposed by discovery would not meet the case. Real question is: are the circumstances sufficiently special to justify the use of an order? (held YES in this case)
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Part 25 Interim preservation (Freezing Orders)

Injunctions attempting to preserve something. Procedure available for person who wants action prior to commencement?
Division 2 r25.11 Freezing order Mareva relief (1) The court may make an order (a "freezing order"), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
Jackson v Sterling Industries Mareva injunction FACTS: Plaintiff sued def for breach of TPA. HC recognised the power to courts to grant Mareva injunctions. The power derived from the inherent power of the court to prevent an abuse of its own process or in the general grants to statutory powers to superior courts to make interlocutory orders wherever just or appropriate.
Mareva injunction
- Orders preventing a def from disposing his assets so as to create a situation in which any judgment obtained against him would be satisfied may be of comparatively recent development. Where an order for the preservation of assets goes beyond simply restraining the D from disposing of specific assets until after judgment, it must be framed so as to come within the limits set by the purpose which it can properly be intend to serve. That purpose is not to create security for the P to require a D to provide security as a condition of being allowed to defend the action against him. Nor is it to introduce a new vulnerability to imprisonment for debt, or rather for alleged indebtedness, by requiring a D under the duress of the threat of imprisonment for contempt of court, to find money, which he may or may not haveto guarantee a P that any judgment obtained will be satisfied. It is to prevent a def from disposing of his actual assets including claims and expectancies so as to frustrate the process of the court by depriving the plaintiff of the fruits of any judgement obtained in the actionit may be appropriate in a rare case that such an order requires a def actually to deliver assets to a named person or even to the court or in a most exceptional case extends to the appointment of a receiver of all or part of the assets of a defendant company...even in such cases however, the order must be confined to preserving assets until after judgment or arguably until there has been an opportunity to seek executionit should not purport to create security over them in favour of the 58

plaintiff and it should make clear that it goes no further than to deprive the def of possession of them for the purpose of precluding his disposal of them so as to defeat a judgment. That being so, any order requiring the delivery of assets...
Cardile v LED Builders Pty Ltd Mareva order against 3rd party FACTS: Construction company Eagle Homes (E) that infringed copyright - LED commenced proceedings against E for infringement of LEDs copyright. Cardile (C) owned the shares in E and while proceedings were happening, E paid C large dividends. C then set up another company, Ultra Modern (UM), which operated under the Es business name LED sought Mareva orders and an accounting of profits against C and UM as well as E even though they werent parties to the original infringement proceedings Issue: whether Mareva injunctive relief can be activated to parties not in the proceedings Why did the HC uphold the Mareva order against the 3rd party? Prima facie case that payment of dividends to C made with view to limiting funds available to satisfy any judgment for LED against E. As a result of payment of dividend to C, E was left with insufficient funds to meet judgment debt LED (liquidator appointed by them) would have the right to pursue and recover funds paid to Cs. So what circumstances must exist to get Mareva order against 3rd party? Where we assume other criteria present order against non-party may be appropriate when can show 3rd party is sufficiently interested 3rd party holds, uses, has control or is in possession of assets of (potential) judgment debtor or Some process available to judgement creditor (LED) as a consequence of judgement where 3rd party may be obliged to give property or otherwise contribute to funds or property of judgement to debtor to satisfy judgement.
Criteria for Mareva Order

Prima facie case against def (good arguable case) Real risk that D will deal with its assets in such away that they will be dissipated or otherwise attempt to make him judgement-proof (assets unbailable to satisfy the judgement). o Can show this by for e.g. prima facie proof of serious dishonesty; o But one can infer it just from fact that plaintiff has a prima facie case. o The risk of dissipation need not be proved by direct evidence inference may be sufficient, especially if allegations suggest fraud. Generally against defendant. But in limited circs may be against related non-party.
See PRACTICE NOTES SC Gen 14 Supreme Court (below)
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o o go to NSWSC Practices practice notes Gencurrent if someone refuses the order, they will be held in contempt by the court not smart
Practice Note Supreme Court Gen PN 13 Search Orders (Anton Piller -
Orders - APO)
Such orders authorise the seizure of docs and other evidence. Search orders are obtained on an ex parte basis. This means that the respondent does not have any notice of the order and is obtained by the applicant in the respondents absence. The purpose of a search order is to preserve evidence which is required to prove the applicants claim and which is in danger of being destroyed. The order permits the applicants legal representatives and an independent supervising solicitor to enter the respondents premises to enter, search, copy documents and remove property from the respondents premises. There are 4 preconditions to the making of an APO none of which have been satisfied in this case: (a) There must be an extremely strong prima facie case; (b) The damage potential or actual, must be very serious for the Plaintiff; (c) There must be clear evidence that the Defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes; and (d) The harm likely to be caused by the APO to the Def and their business affairs must not be excessive or out of proportion to the legitimate object of the order especially when it will allow the perusal by the Plaintiff of the Defs confidential commercial documents.
Practice Note No. SC Gen 13 Supreme court Search Orders (also known as Anton Pillar Orders) 4. This order may be served only between [insert time] am/pm and [insert time] am/pm [on a business day].[1] 5. In this order: (a) applicant means the person who applied for this order, and if there is more than one applicant, includes all the applicants. (b) independent computer expert means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order. (c) independent solicitor means the person identified as the independent solicitor in the search party referred to in Schedule A to this order. (d) listed thing means any thing referred to in Schedule A to this order. (e) premises means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondents control on or about the premises or that are otherwise identified in Schedule A.
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(f) search party means the persons identified or described as constituting the search party in Schedule A to this order. (g) thing includes a document. (h) you, where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.
Austress Freyssinet Pty Ltd v Joseph HELD: - frequently happens, in confidential information cases, that when access is granted to documentation it is on the basis that it is only lawyers who have that access, and that if in relation to some specific documentation they need instructions from their client, application can be made to the court to which access is given which is no wider than the necessity of the case demands. - This procedure should be followed, in my view, in the present case.
Standing
Standing refers to the right of a plaintiff to be considered an appropriate party to initiate a particular proceedings. Cases in which standing may be issue are almost always confined to legal proceedings that have a public element, such as proceedings to enforce public rights or duties arising under legislation, proceedings that test the constitutional validity of legislation or proceedings for review of the decisions of inferior courts and administrators General law states that a party, invoking the jurisdiction of a court in respect to an alleged interference with a public right, must show either that some private right of that party has been interfered with at the same time or that such party has suffered special damage peculiar to himself - Truth About Motorways v Macquarie
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Joining Parties and Causes of Action
Class 6: Joining Parties and Causes of Action
The rules for the joining of parties (see UCPR rr6.19 6.28) and those for joinder of causes of action (see UCPR rr 6.18, 6.22) are interrelated though different. Division 5 Joinder of causes of action and joinder of parties
r6.18 Joinder of causes of action (1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action, (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, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, and in relation to the estate of the same deceased person, 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. (2) Leave under subrule (1) may be granted before or after the originating process is filed. r6.19 Proceedings involving common questions of law or fact (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if: (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed.
r6.20 Proceedings affecting persons having joint entitlement (1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them. (2) Unless the court orders otherwise, any other such person is to be joined: (a) as a plaintiff, if he or she consents to being a plaintiff, or 62
Joining Parties and Causes of Action (b) as a defendant, if he or she does not consent to being a plaintiff. (3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law. r6.21 Proceedings affecting persons having joint or several liability (1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings. (2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order that the other persons be joined as defendants and that the proceedings be stayed until those other persons have been so joined. r6.22 Court may order separate trials if joinder of party or cause of action inconvenient If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials, or (b) may make such other order as it thinks fit. r6.23 Effect of misjoinder or non-joinder of parties Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings. r6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been 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, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant. r6.25 Joinder as plaintiff requires party's consent A person is not to be joined as a plaintiff in any proceedings except with his or her consent. r6.26 Joinder to recover costs (1) Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person. (2) This rule does not apply: (a) if the other person would otherwise be a proper party to the proceedings, or (b) if the party joins the other person by means of a cross-claim in respect of a claim for costs against the party. r6.27 Joinder on application of third party A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant. r6.28 Date of commencement of proceedings in relation to parties joined If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order. 63
Port of Melbourne Authority v Anshun Pty Ltd - Cant litigate again in a 2nd action if it was reasonable that the issues in the 2 nd action shouldve been litigated in the 1st action FACTS: - 12. The issue was whether it was permissible to initiate a second proceedings on a different cause of action against a party who had been a defendant in the first proceedings. The cause of action in the 2nd proceedings had not been litigated in the first proceedings so there was no apparent res judicata principle to prevent the second proceedings. - Mr S (the plaintiff) was injured by a load of girders being lifted by a crane. In the first proceedings the plaintiff sued the driver of the crane Mr Anshun (first Defendant D1) and the Port of Melb Authority (second defendant D2) who hired Mr Anshun in a negligence cause of action. Both defendants were found liable (D1 90%, D2 10%). In a hiring agreement Port of Melb (D2) had agreed to indemnify Anshun (D1) against any negligence actions, but the agreement was not raised in the first proceeding by either defendant. - Anshun wished to initiate a second proceedings against Port of Melb on the contractual indemnity but the HC held that he was estopped from doing so. The majority of the HC held: o There will be no estoppel unless it appears that the matter relied on as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it . - Anshun has not offered an explanation as to why the contractual indemnity had not been raised in the first proceeding. An important factor in the courts view was that a second proceedings might cause a conflicting judgement. - Issue: would it be reasonable to raise the 2nd proceeding in the first one? - By conflicting judgements we include judgements which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction. - The matter now sought to be raised by the Authority was a defence to Anshuns claim in the 1st action. It was so closely connected with the subject matter of that 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. - In this case, parties to the second proceedings were parties in the first proceedings. Gibbs v Kinna - Parties to the second proceedings were parties in the first proceedings FACTS: - 1st action: Employee (Kinna) brought action in the Industrial Relations Commission against employer for compensation for wrongful termination successfully received compensation. - 2nd action: Kinna then sued the same employer for damages in Magistrates Court for breach of contract. Magistrate dismissed claim on basis that it should have been joined in the 1st action. 64
Joining Parties and Causes of Action Employee appealed to DC successfully and employer then appealed to CoA. CoA dismisses employers appeal and overturned the magistrates decision to dismiss the claim.
What is the test? - Whether it was reasonable not to litigate the issues in the 2nd action in the 1st action. - If reasonable, Anshun not applicable - (Anshun only applicable if it was reasonable that the issues in the 2 nd action shouldve been litigated in the 1st action). Why did court hold that no Anshun estoppels applied? - Local court and commission are too different places where different issues can be raised. - Commission is more efficient and limited. Would the same or substantially the same facts arise for consideration in both (accepted this was so here) Could 2nd claim have been raised in earlier proceedings? - Have to decide whether Anshun applies on all the relevant facts, including the character of the previous proceedings, the scope of any pleading, the length and complexity of any trial, any real or perceived difficulties, etc - Here, not unreasonable to defer making the later claim would have needed amendment once... refer to IRC Can Anshun estoppels apply where the two proceedings concern different parties? - Generally NO - Anshun is essentially about re-litigation about an issue in an earlier dispute, which is usually between the same parties. - But in Rippon, there were different parties and Anshun estoppels may still apply to prevent 2nd litigation. Rippon v Chilcotin P/L - Different defendant in first and second proceedings FACTS: - Purchasers of business sued vendors. Succeeded on breach of contract (limited damages) but failed to prove misrepresentation of financial statements under s52 (dismissed) because court held P relied on the warranty not the financial statements. - Purchasers sued the accountants who had prepared the financial statements. Accountants sought and obtained (on appeal) summary dismissal. CoA relied on Anshun attempting to litigate the issues that were decided in or barred by the earlier proceedings. What were the main points in the judgement? - P could have included claim against accounts for negligent misrepresentation. P knew that the figures came from accountant and there would have been common issues of reliance, falsity and damage so claims against accountants were so relevant to the 65
Joining Parties and Causes of Action subject matters of the 1st action that it was unreasonable for P not to rely on them in 1 st action P was disappointed with the outcome of 1st action so sued accountant over effectively the same misrepresentation in hope of a different outcome The possibility of inconsistent findings may be a reason for finding proceedings to be an abuse of process. In Rippon the P had in previous proceedings failed to prove reliance on certain accounts. The court said that it would be abuse of process to bring proceedings against a different D for the same loss based on reliance on the same accounts; and it also said that the P's attempt to avoid this by alleging reliance on earlier accounts was mere camouflage and in any event had to prospect of success.
Redowood Pty Ltd v Link Market Srvices Pty Ltd (formerly known as ASX Perpetual Registrars Ltd) - In this case, Anshun was also characterised as being based on the doctrine of abuse of process FACTS: (need facts - see text page 203) HELD: 45. In cases where the earlier proceedings and the later proceedings are between the same parties, as in Anshun itself, a finding of unreasonableness in not raising a matter in the earlier proceedings would almost inevitably mean that the later proceedings were oppressive and an abuse of process. Where the parties are different, the test of unreasonableness is still relevant; but in my opinion it must either be considered not conclusive, or else must be understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process. 46. In the present case, if the earlier proceedings had proceeded as a tripartite contest, with the cross-claim against ASX Perpetual being head together with Redowoods claim against Mongoose, then I think it would have been strongly arguable, even though there was no issue joined directly between Redowood and ASX that these latter proceedings involve the same parties as the previous proceedings. That it was unreasonable for Redowood not to agitate a claim against ASX in the earlier proceedings and that the present proceedings are oppressive and an abuse of process However, 6 weeks after the cross claim was brought, it was stayed and ASX-Perpetual took no further part in the proceedings, and in particular it did not participate in the hearing. 1. Redowood is not seeking any different finding of fact, and the possibility that a different finding adverse to Redowood might be made by a different judge in a hearing between different parties gives little support to Anshun estoppels. 2. Redowood is not alleging that there was a representation or assumption such that compliance would have absolved Redowood from complying with the requirements of Mongooses offer, but is rather alleging that the negligence of ASX caused ti to act in such a way that it did not obtain a contract and was not otherwise able to retrieve the situation. 66
Joining Parties and Causes of Action 3. The respondent is not alleging any duty based on the Rights Offer Doc , but rather a duty based on Rs own dealings with ASX Accordingly, in my opinion the primary judge was in error in his findings on the question of inconsistent judgements. The circs that the primary judge did not accept the reason put forward by R for not joining ASX in the Mongoose proceedings was relevant to the question of whether the present proceedings were an abuse of process, but did not of itself discharge the onus lying on ASX to show that it was objectively unreasonable for R not to join ASX in the previous proceedings and that these proceedings were an abuse of process At the heart of the Anshun estoppel (whatever its doctrinal underpinning) is whether it was unreasonable that the action in the second proceedings was not litigated in the first proceedings and its arguable that the question of the risk of inconsistent verdicts in the first proceedings has most influence in determining whether second proceedings will be stayed.
Joining Plaintiffs under r 6.19

r6.19 Proceedings involving common questions of law or fact (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if: (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, (has been interpreted to mean same series of transactions) or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed. (If cant fulfill both legs)
Plaintiffs can
join in the same proceedings where each has
1) A right to relief arising out of the same transaction or same series of transactions and 2) If there were separate trials, there would be common questions of law or fact. Where these conditions are not fulfilled the court also has power to grant leave for plaintiffs to join in the same proceedings: Plaintiffs who each have separate causes of action against a defendant can be joined in the same proceedings but only if the conditions in UCPR r6.19 are fulfilled . In Payne v Young the plaintiffs were improperly joined because each plaintiff was held to have entered into a separate transaction and the transactions were not related and had nothing in common. 67
r6.22 Court may order separate trials if joinder of party or cause of action inconvenient If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials, or (b) may make such other order as it thinks fit.
r6.22 is the disjoinder, and r6.19 is the joinder

Joint entitlements Where different people are jointly entitled to the same relief all those people should be joined as plaintiffs. If a person or persona will not consent to join as a plaintiff, that person can be joined as a defendant. (r6.20) This may seem odd but joint entitlement requires all those jointly entitled to be part of the same proceedings. For e.g. joint contractors must all be joined in the same proceedings because a breach of joint contract gives rise to only one cause of action.
Consent A person being sought to be joined as a plaintiff must give consent (r6.25). If a person jointly entitled is not prepared to consent to be joined as a plaintiff, that person can be joined as a defendant. Consent is not required to be joined as a defendant
Representation Plaintiffs who join in the same proceedings are usually represented by the same legal representative (Goold & Porter P/L v Housing Commission). There may be discretion, sparingly exercised, to allow different plaintiffs to be represented by diff legal reps where the plaintiffs interests are in conflict or they disagree about the conduct of the matter but more often such disagreement or conflict results in one of the plaintiffs being added as a defendant. This is usually the most sensible course because of the difficulties of having different plaintiffs with different positions having carriage of the proceedings. r6.24 allows a plaintiff to be added during the course of the proceedings as long as the person consents to being a plaintiff pursuant to r6.25. If consent is not given a person can be joined as a defendant.
*** To join use r6.29 and 6.24 (narrower opportunity) r6.29 Removal of parties by order The court may order that a person: (a) who has been improperly or unnecessarily joined, or (b) who has ceased to be a proper or necessary party, be removed as a party. 68
r6.19 Joinder Joining parties 1) Common question of law or fact AND 2) Same series of transactions r6.19(2) and leave to join If these 2 legs not satisfied, r6.19(2) provides the court with power to grant leave to join a party even if there is no common question of law or fact and rights to relief do not arise out of the same transaction or same series of transactions.
Bendir v Anson FACTS: - Different plaintiffs who each owned building across the street from a newly erected building sued the defendant who was erecting the new building. - Can the 2 plaintiffs join together to sue new building? HELD: - No common question of law or fact because 2 plaintiffs are in different positions/buildings (conservative view) - Transaction was the building of the new building - The word transaction I think, necessarily mean an act, the effect of which extends beyond the agent to other persons. - The word transaction seems to have been used in the first instance rather w ith reference to cases which there was something in the nature of a contractual relation, or some relation of that nature between the parties, but it has quite clearly been extended from that more limited connotation. - . Instead separate trials were ordered on the basis of the equivalent of r6.22 because I think that the joinder of these 2 plaintiffs in the one action would produce a condition of things likely to embarrass the judge. I think that the judge would be much more capable of dealing with each building separately as indeed it involves quite separate questions in an action brought in respect of that building apart from the other action brought in respect of the other separate building.
Birtles v Commonwealth (WARNING: strictly obiter dicta) broad definition of transaction Notion of transaction was given a broader interpretation . Mr Birtles (the plaintiff) while digging a hole
used a crowbar that contacted a high-voltage underground cable. He received an electric shock and sued the occupier of the land (the Commonwealth), the State Electricity Commission (SEC) and his employer. All defendants
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claimed that the relevant limitation period had expired (time-barred). The SEC also claimed that it had not received the required statutory notice of the plaintiffs intention to sue. (B thinks that his solicitor has delayed issuing proceedings until after statute of limitations has expired). After the defences had been filed, Birtles changed his solicitor and sought to add his former solicitor as a new defendant in an action for negligence if he failed against the existing defendants. (Issue: same series of transaction? digging a whole with a crowbar is quite different from failing to bring proceedings by solicitor court adopted broad view of transaction as to include both of these things) The court held that transaction may well comprehend the inclusion of the action against the solicitor but the action was statute barred. (transaction stuff wasnt really the real issue so it was only obiter dicta just aspiration).
Payne v Young [CURRENT LAW]

Very restrictive view of what a transaction is Essentially has to be transactions which are exactly the same even same def FACTS: - Seven abattoirs (plaintiffs) sought declaration that State legislation re compulsory inspection and fees unconstitutional as an excise - Relief was plaintiffs wanted their fees back - Joinder allowed on declaration, but disallowed on seeking orders for reimbursement of inspection fees (except for Ps 6 & 7 common inspectors?). - Note fees paid to different Defendants Commissioner for Public Health or relevant local authority HELD: There was a common question of law or fact, but the claims didnt arise out of the same transaction/series of transactions - Barwick J: transactions of separate plaintiffs with different defendants were not a (same) series of transactions. - Mason J: The rule would have to read any instead of same series of transactions for it to be included - Murphy J (minority): transaction should be read broadly (going to Birtles) o Series = set of similar things or events o If it is too messy, then court can always still use discretion in r6.22 to order separate trials What if against same defendant? - Barwick and Mason JJ doubtful whether still same transaction - Nowadays the courts discretion is exercised to give effect to the overriding purpose constrained in CPA s56 (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) having regard to the objects of case management contained in s57 (just determination of the business of the court; the efficient disposal of the business of the court, the efficient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.) - If s56 were to dominate then you would expect a broader, Birtles definition of transaction but Payne v Young continues conservative definition Dean Willcocks v Air Transit International 1 plaintiff, many defendants 70
Joining Parties and Causes of Action FACTS: - The liquidator proposed that proceeding No. 5862 of 2001 be a mother proceeding in which multiple transactions entered into by Clifford Corporation are challenged and each other party to each of those transactions is a defendant. - The liquidator maintained that joining multiple defendants in a mother proceeding is permitted by equivalent of r6.19. The liquidator contended that the ingredients of the subpara (a) are satisfied for each proceeding but if not, the court should grant leave under subpara (b). HELD: - To fit within subpara (a), the liquidator must identify, in each proceeding, a question of law or fact common to all of the transactions encompassed by the proceeding. - He must also show that in each proceeding, all rights to relief are in respect of or arise out of the same transaction or series of transactions.
In my view, the fact that various transactions are linked together by the liquidators allegation that each of them is an unfair preference is not enough to make those transactions the same series of transactions for the purposes of the Rule, just as it was not enough in Payne v Young that the various exactions of fees were linked together by the plaintiffs allegation that the legislation authorizing them was invalid. The same point was made by Hill J in Re The Thai Silk Company Ltd. Hill J referred to a hypothetical case, where a vendor sells a number of properties by auction, one after the other. Subject to a common misrepresentation by the vendor. He said that it would not be correct to describe each of the contracts negotiated at auction with different purchasers as being a series of transactions for the purposes of the rule. 24. Nor can it be said that the rights to relief alleged to arise out of various preferential transactions are in respect of or arise out of the course o f transactions which led to the company becoming insolvent, even if that course of transactions could be described as a series just as the exactions of fees in Payne v Young could not be said to be in respect of or to arise out of the events leading to the enactment of allegedly unconstitutional legislation. The observations of Tadgell J, dealing with the equivalent Victorian rule in Marina v Esanda Ltd [1986] are appropriate here: - I think that the rule no more applies here than it would be to autho rise the joinder as plaintiffs of 100 unrelated members of the public who all went to a supermarket on Saturday morning and bought, each of them, a pound of butter that happened to be contaminated. Each purchaser, if he consumed part of his purchase and became ill as a result, might have a right of action against the vendor by virtue of breach of an implied condition or warranty derived from the Goods Act, and perhaps also some other statutory right to compensation. Those who sued would sue the common vendor and each would presumably have a cause of action of a kind identical to that of each of the other. Moreover, the 100 purchase transactions could well be described as a series, but the relief obtainable by none of the purchases could be said to arise out of the same transaction or series of transactions; in the case of each, the relief would be in respect of or arise out of his individual transaction and nothing else.
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Joining Parties and Causes of Action 26. Here, the liquidators right to relief against the defendant in respect of a parti al preferential transaction arises out of that transaction and not out of the events giving rise to the insolvency. Those events are analogous to negligent contamination of the butter rather than the sale of the contaminated product to a particular purchaser. 27. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, Rogers CJ observed that an unduly strict interpretation of subpara (a) of the Rule may not give effect to the intentions of the drafters. That may be so, but subpara (a) is not attracted merely because of a common question of solvency arises in respect of each transaction. There needs to be links between the impugned transactions themselves, sufficient to warrant them being treated as the same series. In Re The Thai Silk Company Ltd, Hill J observed that there must be some interdependence or an intelligible ground removing the transaction from the category of separate transactions and uniting them under the head of a series.
Joinder by Leave - r6.19(b)

28. The liquidator submits that if I find subpara(a) of the rule to be inapplicable as I do, then I should exercise my discretion in his favour under subpara(b) (granting leave). Both sides referred to some observations by Wilcox J in Bishop v Bridgehands Securities Ltd (1990) 25 FCR, as to the principles to be applied when exercising the discretion. (In Bishop, bunch of plaintiffs wanted to join but no common series of transactions, so court considered giving them leave and did) - Principles regarding applying discretion for leave under subpara(b): As the discretion conferred by subrule (b) is, in terms, unconfined, it would be inappropriate to specify circumstances in which it might be applied. Everything must depend upon the facts of the particular case. But it is appropriate to consider what principles ought to guide the exercise of such discretion. - The basic principle, as it seems to me, is that the Court should take whatever course seems to be conducive to a just resolution of the dispute between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subrule (b); but in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. (although cost and delay is important, most important is preventing unfairness on any party) - Secondly, regard must be had to practical matters. For e.g. it would normally be inappropriate to grant leave for the joinder of applicants (plaintiffs) who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants side of the case. - Similarly, although applicants must propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. (Factual disparities / evidence for all the plaintiffs in Bishop, plaintiffs all relied on documents they all had in common and forgoed oral testimonies) - Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me 72
Joining Parties and Causes of Action unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims. 29: Wilcox J applied these principles to grant leave to 80 plaintiffs to sue as investors who invested, with the first respondent, money that was subsequently deposited with some Estate Mortgage trusts. He took into account that the case would be substantially dependent on documents, the plaintiffs foregoing of any oral representation and only a little additional work will be involved in tracing individual claims through the financial records of the respondent. 32. Often the exercise of the discretion under subparagraph (b) arises in a case where an attempt is made to join many people as plaintiffs for e.g., because they have all suffered investment losses at the hands of the same adviser, who is made the def in the proceedings. In such a case the court will be concerned that it may be unfair to the defendant to be forced to deal in a single proceeding with a multitude of transactions, even though the alleged wrong doing (say, by circulation of a letter in standard form) may be identical or similar in the case of each plaintiff. 33. Where there is a single plaintiff but many defendants, the concern is rather different, and those principles are not fully applicable, although the general objectives of fairness and practicability remain. Each def will be required to answer a case individually pleaded against it by the plaintiff, but the pleaded case against each def will contain assertions made against all defendants. It is not unfair to a def that the plaintiff makes identical or similar allegations against others. The fact that the plaintiff does so by joining more than on def to a single proceeding does not itself create unfairness. Disadvantages to a defendant and the possibility of unfairness may arise if, for example: o The making out of the case against one defendant in some way hampers another defendant from adequately making out its defence; or o The joinder of multiple defendants leads to cost or delay to a defendant materially greater than would have occurred if the cases had been brought separately; or o A defendant is forced to defend its case in an inconvenient location. o A defendant is forced to defend its case in the Supreme Court, whereas if the case had been brought separately against a defendant it would have been brought in a lower court at less cost to the defendant. 34. It seems to me that the Courts task is to identify disadvantages o f these kinds and to weigh them against identified advantages to the plaintiff. To the defendants as a whole and in terms of the efficient use of the courts resources having regard to the commonality of the issues raised by each claim, and the ability of the court to case manage so as to minimize disadvantages. In some cases, the disadvantages to a defendant will be so great as to outweigh the advantages of a single proceeding. And the court should therefore decline to exercise its discretion under subpara (b) as to the joinder of that defendant. In other cases, a sensible and practical solution will be to grant leave to the plaintiff to join all defendants to the proceedings subject perhaps to case management and review at a later stage.
Cross Claims (didnt go through this) - Cross claims different to setoffs. The NSW Law reform Commission Report 94 (2000) entitled Set-Off provided the following by way of explanation of set-off and its distinction from a cross-claim: 73
Joining Parties and Causes of Action o 1.4 set-off, at its most basic, is a mechanism whereby one party can apply a debt owed to him or her by another party to discharge all or part of a debt that he/she owes to that other party. The result is either that the debt is completely discharged, or a sum remains which represents the balance of the debt owed by one of the parties to the other. o Although something invoked as a self help remedy, it is usually applied as countervailing claim in answer to a plaintiffs claim in proceedings before a court. In the context of such proceedings set-ff is quite diff from counterclaim. 1.5counterclaim is merely a procedural device (involving cross-claim) whereby actions by one party against the other and vice versa are heard as part of the one proceeding. Such actions are treated essentially as distinct actions, including for the purposes of striking out, summary judgement and costs in the proceeding. Although the economic result of counterclaim will often be the same as the one which would be achieved by setoff, the result of a hearing involving claim and counterclaim is separate judgements for each party against the other, whereas a single judgement only is issued when set-off is pleaded. Civil Procedure Act 2005 (NSW) s21 Defendant's right to set-off (1) If there are mutual debts between a plaintiff and a defendant in any proceedings, the defendant may, by way of defence, set off against the plaintiff's claim any debt that is owed by the plaintiff to the defendant and that was due and payable at the time the defence of set-off was filed, whether or not the mutual debts are different in nature. (2) This section extends to civil proceedings in which one or more of the mutual debts is owed by or to a deceased person who is represented by a legal personal representative. (3) This section does not apply to the extent to which the plaintiff and defendant have agreed that debts (whether generally or as to specific debts) may not be set off against each other. (4) This section does not affect any other rights or obligations of a debtor or creditor in respect of mutual debts, whether arising in equity or otherwise. (5) This section is subject to section 120 of the Industrial Relations Act 1996. (6) In this section, "debt" means any liquidated claim.
The application of this provision to existing debts is dealt with in clause 6 of Schedule 6 (Savings, transitional and other provisions).
s22 Defendant's right to cross-claim (1) Subject to subsection (2), 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. (2) Relief may not be granted under this section against a person who is not a plaintiff in the first proceedings unless the relief relates to, or is connected with, the subject of the first proceedings. (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, and 74
Joining Parties and Causes of Action (b) if not already a party to the first proceedings: (i) becomes a party to the first proceedings, and (ii) unless the court otherwise orders, is bound by any judgment (including a judgment by consent or by default) or decision (including a decision by consent) on any claim for relief in the proceedings (including a claim for relief in any cross-claim in the proceedings).
Changing of Parties
Note that UCPR r6.19(2) provides for the retrospective joinder (i.e. court can grant leave for a party to join later). This means that leave can be granted to join parties after proceedings have been commenced.
r6.24 Court may join party if joinder proper or necessary (more narrow than r6.19) (1) If the court considers that a person ought to have been 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, the court may order that the person be joined as a party.
UCPR r6.24 also provides for joinder after commencement of proceedings. The reason for the different avenues of adding parties to proceedings is largely based on the fact that historically, there was a rule for joinder at the time of commencement of proceedings and a different (narrower) rule for adding parties after commencement of proceedings. The existence of r6.19(2) is one indication that the rules of joinder and addition of parties have tended to unite. Another indication that the two have tended to unite is the fact that there is no longer any references to addition of parties in r.6.24. UCPR r6.28 concerns the date of commencement of proceedings for new parties who are joined after the plaintiff originally initiated the proceedings. The time at which a new party is joined to the proceedings can be important because of statute of limitation periods.
r6.28 Date of commencement of proceedings in relation to parties joined
If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.
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New Idafe Inc v Barnard how judges can use the rule to bring parties in and change the role that parties undertake - 9. These proceedings would more appropriately be constituted with the Kasteel faction as the plaintiffs, the Barnard faction as the active defendant, and New Idafe be removed as plaintiff and joined as a defendant, in which capacity it could probably be a passive party. I note that Mr Washington who appears on behalf of the Kasteel faction as crossdefendant has indicated their consent to being joined as plaintiffs. According, I order under r6.24 that the Kasteel faction be joined as plaintiffs and I order, pursuant to r6.29 that the New Idafe Inc be removed as plaintiffs, and I order pursuant to r6.24 that the New Idafe be joined as 6th defendant. New Idafe will presumably be unrepresented and will take a passive role. - Judges has used the rules to configure the action in a way that the judge thinks it should be configured. r6.24 Court may join party if joinder proper or necessary r6.24 allows parties to be added after proceedings have been commenced if those additional parties should have been joined initially or if their presence is necessary for the court to effectively and completely adjudicate on all matters in dispute. The case extract of News Ltd v ARFL concerns an application that orders made in regard to a cross-claim should not have been made because all the parties to the crossclaim had not be joined.
News Ltd v ARFL (Superleague Case): *note: this is not an addition case but theyre going to flesh out what r6.24 means] - ARFL got orders against News, which prevented News employing players and coaches for Superleague. ARFL had not joined players or coaches, although all had notice of the action. Towards the end of proceedings, the ARFL sent notices to coaches and players advising them to get legal advice on whether they should intervene in the action. - Ground of appeal was that ARFL should have made the players and coaches parties. - Relevant test for equivalent of r6.24 = Pegang Mining: Will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected? o An order which directly affects a third persons rights or liabilities to a party should not be made unless that person is also joined as a party. - Here, they didnt need the players or coaches for damages award, but did need them for injunctive relief. In order for the court to provide injunctive relief here, the party bringing the action/seeking the order should have joined the coaches and the players.
Weber v Ankin FACTS: 76
Joining Parties and Causes of Action 2 houses that wanted to grab for themselves the lane at the back of them 1 of the parties was saying that the other party was trying to grab land and they shouldnt do that because it was their land. Judge asks wheres the council? Parties say theyve asked the council and its not interested in being party Judge disagrees, and that if he finds that its a road, then that liability / right affects the council and therefore they should be a party to this action.
HELD: - Council ought to be joined as a party to the proceedings pursuant to r6.24 For example in Qantas Airways v A F Little Pty Ltd, the plaintiff commenced proceedings against an architect and an engineer claiming defective design of a building. The plaintiff sought to add the builder to allege alternative claims in contract and tort. The court held that because the application to add a party was being made by the plaintiff all matters in dispute in the proceeding should not be interpreted as only those that existed between the plaintiff, the architect and engineer. If an application to add a new defendant, made by an existing defendant over the objection of the plaintiff is granted, the plaintiff will be compelled to sue a defendant it does not wish to sue. Accordingly, the new defendants presence must be necessary for the complete adjudication of the issues between the existing parties. In this context, a new defendant will only be joined if there is a question relating to or arising out of the claim in the existing proceedings and it is just and convenient to determine that question between the plaintiff, the existing defendant and the new defendant. i.e. all matters in dispute in the proceedings need to be assessed in terms of the existing matters and D2 only allowed if the joinder is just and convenient more narrow than other case.
Joining Causes of Actions

Multiple causes of actions can be joined in the same proceedings. The considerations controlling joinder of causes of action and joining parties are interrelated because when parties are joined, different causes of action between those parties that have been joined may exist. Where the rules refer to joinder of causes of actions this means causes of action that have been properly constituted as to parties. So that once a proceeding is properly constituted as to parties (by virtue of UCPR r6.19) the causes of action that can be joined are determined by UCPR r6.18. The requirements of r6.18 are relatively undemanding. Causes of actions can be joined in the same proceedings as long as the capacity of the plaintiff and defendant are within one of subr (1)(a) (c) or if the court grants leave under subr (1)(d). o The discretion to grant leave should take into account the overriding purpose principle in CPA s56, namely, the facilitation of a just, quick and cheap resolution of the issues in dispute. r6.22 allows the court to order separate trials or make other orders where the joinder of separate causes of actions or joining different parties may embarrass, inconvenience or delay the conduct of the proceedings. 77
r6.18 Joinder of causes of action (1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action, (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, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, and in relation to the estate of the same deceased person, 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. (2) Leave under subrule (1) may be granted before or after the originating process is filed.
r6.22 Court may order separate trials if joinder of party or cause of action inconvenient If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials, or (b) may make such other order as it thinks fit.
Amendment Powers
The court has power pursuant to s64 CPA to amend pleadings or to grant leave to amend any document in the proceedings even if the amendment would have the effect of adding or substituting a cause of action that has arisen after commencement of the proceedings.
Generally an amendment takes affect not from the date of amendment but from the date of the original document which is amended. However where an amendment has the effect of introducing a new plaintiff or defendant or a new cause of action the date of such an amendment in relation to the cause of action, subject to s65, is taken to be the date on which the amendment is made. (no relation back principle here)
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Joining Parties and Causes of Action UCPR r6.28 and r19.2 (amendments to add or remove parties) conforms with s64(3) in this regard. The court also has power to make an amendment that raises statute-barred matters namely correcting a mistake in the name of a party; changing the capacity in which the plaintiff sues; and permitting the addition or substitution of a cause of action that arose after the commencement of proceedings if the new cause of action arises out of the same or substantially the same facts as originally pleaded. Such amendments are authorised by s65, despite anything to the contrary in the Limitations Act 1969 if the proceedings were commenced before the limitation period expired. Unless the court otherwise orders, an amendment under s65 is taken to be effected from the date on which the proceedings were commenced (relation back principle).
19.2 Amendments to add or remove parties (1) Subject to subrules (2) and (3), the amendments that may be made under rule 19.1 include an amendment that would have the effect of adding a party to, or removing a party from, the proceedings. (2) An amendment that would have the effect of adding a person as a plaintiff in proceedings in which a solicitor is acting for the current plaintiff may not be made unless, at the time the amendment is made, the same solicitor: (a) is acting for the person to be added, and (b) certifies on the amended document: (i) that he or she is acting for the person to be added, and (ii) that the person to be added consents to being added as a plaintiff. (3) An amendment that would have the effect of removing a party from the proceedings may not be made unless that party consents to being removed from the proceedings. (4) If a person is added as a party under this rule, the date of commencement of the proceedings in relation to that person is taken to be the date on which the amended document is filed. r6.28 Date of commencement of proceedings in relation to parties joined If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.
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Initiating Proceedings Amendment & Amendments affecting Limitations periods
Class 7: Initiating Proceedings, (Chapter 8: 8.10-8.425) Amendment & Amendments affecting Limitations periods (Chapter 9: 9.10-9.130) Definitions
Originating process - the process by which proceedings are commenced, and includes the process by which a cross-claim is made. (SoC, statement of cross-claim & cross-summons) Plaintiff - a person by whom proceedings are commenced and including a person by whom a cross-claim is made. Defendant: person against whom proceedings are commenced, and includes a person against whom a cross-claim is made In NSW proceedings can be initiated by using a statement of claim or summons the only 2 types of originating process The date of filing of the originating process is conclusive for the purposes of the limitations defence In civil proceedings the form of the originating process is prescribed by the rules.
When is a Statement of Claim usually required? - Where the proceedings involve disputed contentions of fact and will initiate the pre-trial and trial processes for that purpose. When is a summons usually used? - Where a question of law, and not a substantial dispute of fact, is at issue. A summons stimulates a summary procedure, e.g. the evidence in chief is usually given by affidavit rather than orally enabling the court to give a speedy determination. A speedy determination is also effected by a date, stamped on the summon, called a return date, being entered on the summons by the Court Registry when it is filed. What specific kinds of matters require a statement of claim? r6.3 Where statement of claim required Proceedings of the following kinds must be commenced by statement of claim: (a) proceedings on a claim for relief in relation to a debt or other liquidated claim, (b) proceedings on a claim for relief in relation to a tort, (c) proceedings on a claim based on an allegation of fraud, (d) proceedings on a claim 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, or (ii) damages in respect of personal injuries to any person, or (iii) damages in respect of damage to any property, (e) proceedings on a claim for relief in relation to a trust, other than an express trust wholly in writing, (f) proceedings on a claim for possession of land, (g) proceedings on a claim for relief under the Property (Relationships) Act 1984, (h) proceedings on a claim for relief in relation to the publication of defamatory matter.
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What specific kinds of matters require a summons? r6.4 Where summons required (1) Proceedings of the following kinds must be commenced by summons: (a) proceedings in which there is no defendant, (b) proceedings on an appeal or application for leave to appeal, other than proceedings assigned to the Court of Appeal, (c) proceedings for preliminary discovery or inspection under Part 5, (d) proceedings on a stated case, (e) proceedings on an application for approval under section 75 of the Civil Procedure Act 2005 of an agreement for the compromise or settlement of a claim, (f) proceedings on an application for a transfer order under Part 9 of the Civil Procedure Act 2005, (g) proceedings on an application for the removal or transfer of proceedings to the court under any Act, other than an application for a transfer order under Part 9 of the Civil Procedure Act 2005, (h) proceedings (other than proceedings on a claim for damages) on any application made under any Act (other than the Civil Procedure Act 2005), (i) proceedings on an application to the court under any Act, other than: (i) proceedings on an application under the Supreme Court Act 1970, the District Court Act 1973 or the Local Courts Act 1982, and (ii) proceedings on an application that may properly be made in existing proceedings, (j) any other proceedings that, pursuant to these rules or any other rules of court, are required to be commenced by summons. (2) Proceedings of the following kinds may be commenced by summons, except where the application is made in proceedings that have been commenced in the court: (a) proceedings on an application for a writ of habeas corpus ad subjiciendum, (b) proceedings on an application for an order for the custody of a minor, (c) proceedings on an application for an order for the appointment of a tutor of a person under legal incapacity, (d) proceedings on an application for a declaration of right, (e) proceedings on an application for an injunction, (f) proceedings on an application for the appointment of a receiver, (g) proceedings on an application for an order for the detention, custody or preservation of property, (h) proceedings on a claim for relief for trespass to land.
If proceedings have already been commenced, the application should be made by motion: see rule 18.1.
(3) Proceedings in the Supreme Court that the plaintiff intends to be entered in the Commercial List or the Technology and Construction List are to be commenced by summons. (4) Proceedings: (a) in which the sole or principal question at issue is, or is likely to be, one of: (i) the construction of an Act or a Commonwealth Act, or (ii) the construction of an instrument made under an Act or a Commonwealth Act, or (iii) the construction of a deed, will, contract or other document, or (iv) some other question of law, or (b) in which there is unlikely to be a substantial dispute of fact, 81
Initiating Proceedings Amendment & Amendments affecting Limitations periods are amongst those which are appropriate to be commenced by summons unless the plaintiff considers the proceedings more appropriate to be commenced by statement of claim.
UCPR r6.4: proceedings o In which there is no defendant; - e.g. Anton pillar order o For preliminary discovery; o An application for an injunction and o Proceedings in the Supreme Court where the plaintiff intends to be entered into the Commercial List or the Technology and Construction List
r6.5 Proceedings wrongly commenced by statement of claim (1) Proceedings that have been commenced by statement of claim when they should have been commenced by summons are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the statement of claim, and may be continued accordingly. (2) Despite subrule (1), the court may order the proceedings to be continued, as if they had been commenced by summons and as if any pleadings filed in the proceedings had been filed as affidavits, and may also make such orders as it thinks fit for the future conduct of the proceedings. r6.6 Proceedings wrongly commenced by summons (1) Proceedings that have been commenced by summons when they should have been commenced by statement of claim are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the summons. (2) Despite subrule (1), the court may order that the proceedings continue on pleadings. (3) On or after making such an order, the court: (a) may order that any affidavits stand as pleadings, or (b) may make orders for the filing of a statement of claim or other pleadings. (4) After a statement of claim is filed pursuant to an order referred to in subrule (3) (b), the proceedings are to continue, subject to any other order of the court, as if commenced by statement of claim.
If the plaintiff incorrectly uses the wrong originating process, there are rules that provide the court with power to make appropriate orders - rr6.5 and 6.6.
Sample summons & statement of claim on TB 487 489 (Ch 12) - The contents and appearance of the originating process have specific requirements. - Information that must be contained in the originating process is prescribed, as are the paper and margin sizes, as well as those parts of the doc that must be in bold print and the requirements for a proper address for service. - The originating process should specifically state the relief claimed and any question to be determined by the court - There are approved forms which have to be used 82
Initiating Proceedings Amendment & Amendments affecting Limitations periods The originating process is also required to contain a notice to the defendant indicating the consequences if the defendant does not file a defence or notice of appearance. The originating process describes the parties (including their address and address for service of documents See UCPR r7.1 for who can commence proceedings e.g. natural persons can commence proceedings Whether a state of claim or a summons, the originating process must be served on each defendant Life of an originating process depends upon the court o An originating process initiating proceedings in the Supreme Court, Dust Diseases Tribunal or Local Court is valid for service for 6 months o An originating process that initiates proceedings in the District Court is valid for service 1 month after its filed. If its served to someone outside NSW, its valid for 6 months. o A failure to serve the originating process within the prescribed time doesnt
r7.1 By whom proceedings may be commenced and carried on (1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person. (2) A company within the meaning of the Corporations Act 2001 of the Commonwealth: (a) may commence and carry on proceedings in any court by a solicitor or by a director of the company, and (b) may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the company. (3) In the case of proceedings in the Supreme Court, subrule (2) (a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings. (4) A corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth): (a) may commence and carry on proceedings in any court by a solicitor, and (b) may commence and carry on proceedings in any court (other than a Local Court) by a duly authorised officer of the corporation, and (c) may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the corporation. (5) Despite subrules (1)-(4), any person may commence and, unless the court orders otherwise, carry on proceedings in a Local Court: (a) by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), in relation only to proceedings on an application for: (i) an instalment order, or (ii) an order for examination, or (iii) a writ of execution, or (iv) a garnishee order, or (b) by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to: (i) proceedings on an application referred to in paragraph (a), or (ii) the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001. (6) A solicitor who is a person's solicitor on the record must hold an unrestricted practising certificate. The term "solicitor on the record" is defined in 83 the Dictionary.
Initiating Proceedings Amendment & Amendments affecting Limitations periods prevent the plaintiff from commencing fresh proceedings by filing another Legal Profession Act 2004 (NSW) s347 Restrictions on commencing proceedings without reasonable prospects of success (1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice. (2) A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. (3) Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification. (4) In this section:"court documentation" means: (a) an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or (b) an amended originating process, defence or further pleading, or (c) a document amending an originating process, defence or further pleading, or (d) any other document of a kind prescribed by the regulations. "cross-claim" includes counter-claim and cross-action. orig inat ing pro ces s.
Court document must have certification that there are reasonable prospects of success There must be certification on the document and filed when the document is filed.
Appearance - After the originating process has been served the def must file a notice of appearance or a defence and serve it on the plaintiff in order to formally notify the court and the plaintiff that the def intends to take some part in the proceeding o It indicates a submission to the jurisdiction o Also acts as a waiver to object to any possibility that the originating process has failed to comply with the rules. - The appearance of defence must be filed within prescribed time periods 84
Initiating Proceedings Amendment & Amendments affecting Limitations periods o If the originating process is a statement of claim an appearance must be entered within 28 days after service of the statement of claim o If the originating process is a summons the appearance must be filed on or before the return date stated on the summons.
Save as to Costs defendant has no argument with the action, so save as to costs r6.11 Defendant may submit to judgment by notice of appearance (1) A defendant who intends to take no active part in proceedings may include in the defendant's notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words, save as to costs". (2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings. There is an express provision in the UCPR for a responding party to file an appearance submitting to the orders of the court save as to costs (see UCPR r 6.11(1). One effect of this is that the party cannot, without leave, take any active part in the proceedings - see r 6.11(2)
Notice of Motion If a defendant wishes to object to the jurisdiction, or the originating process, or service of the 12.11 Setting aside originating process etc (1) In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, (c) an order declaring that the originating process has not been duly served on the defendant, (d) an order discharging: (i) any order giving leave to serve the originating process outside New South Wales, or (ii) any order confirming service of the originating process outside New South Wales, (e) an order discharging any order extending the validity for service of the originating process, (f) an order protecting or releasing: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought, (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2): (a) may be filed without entering an appearance, 85 and (b) must bear a note stating the applicant's address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.
Initiating Proceedings Amendment & Amendments affecting Limitations periods originating process, what should be done? An appearance should not be entered. Instead, notice of motion (or an application) pursuant to UCPR r12.11 should be made for an order setting aside the originating process or service of it, or an order declaring that the court does not have jurisdiction over the defendant in respect of the subject matter of the proceedings or an order declining jurisdiction in the proceedings or an order granting such other relief that the court thinks appropriate An application for an order under r12.11 must be made within time period prescribed for entering an appearance and an applic for an order under this rule is specifically excluded from the req contained in r6.1 that a party may not take any step in the proceedings without entering an appearance. -
r12.5 Withdrawal of appearance An active party may withdraw an appearance by leave of the court. -
r12.5 allows a defendant to seek leave to withdraw an appearance, however if it was entered on the basis of competent legal advice and not by mistake, leave would be refused.
r12.6 Withdrawal of matter in defence or subsequent pleading (1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time. (2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court. (3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal. (4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.
r12.6 also allows the defendant to seek leave to withdraw any matter that is contained in a defence.
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Pleadings
Pleadings are applicable for proceedings appropriate for a trial rather than matters being dealt with by summary determination (so a summons is not a pleadings). Pleadings are formal documents exchanged between the parties indicating the claims and defences and the facts on which those claims and defences are based o The first pleading of the plaintiffs is the Statement of Claim o The response by each defendant is the defence o The defendant might also make a cross-claim or set-off o The plaintiff might answer the defence with a reply and if the defendant made a cross-claim, a defence to the cross-claim Any further pleadings require leave of the court
Page 278 for UCPR 14.6 14.23
Incentives to respond to the last pleading Once the SoC has been filed and served on the def, if the defendant does not respond to or specifically deny each of the factual allegations in the statement of claim, those facts are deemed to be admitted: r14.26 - For counterclaim (defendants version of a SoC), if plaintiff fails to respond to an aspect, deemed to have admitted After the defence has been delivered, the last unanswered pleading (could be the defence) is deemed to have been denied unless further pleadings are served: r14.27 - Assumed that the plaintiff denies all the things that the defendant says - If plaintiff files a reply, and misses out on an aspect, deemed to have denied r14.27 Joinder of issue (1) A pleading may expressly join issue on a previous pleading. 87
Initiating Proceedings Amendment & Amendments affecting Limitations periods (2) If there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence. (3) If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue on the reply or subsequent pleading. (4) There can be no joinder of issue, express or implied, on a statement of claim. (5) An implied joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading. (6) An express joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading other than an allegation that is expressly admitted. Group (Australia) Ltd v Karabassis - responses - First defendant (Gruzman) has not pleaded in his defence certain paragraphs of the statement of claim (r14.26). D1 is taken to have admitted the matters in each of these matters. D1 then seeks leave to withdraw that admission (r12.6). 11.As Mr Dowdy correctly submitted, by virtue of the First Defendant not pleading to paragraphs 5-15 (inclusive) and 19 of the Statement of Claim, the First Defendant is taken to have admitted the matters pleaded in each of the paragraphs: r14.26 Consequently, Mr Gruzmans application is, in effect, an application pursuant to r12.6(2) to obtain the Courts leave to withdraw the First Defendants admissions made in the Defence. Objectives of pleadings o To provide a permanent record of the parameters of the case and allow the court to know the issues in the proceedings. o To provide sufficient information to the parties to allow each of them a fair opportunity to meet the issues in the proceedings - Argued that the pleadings process is not sufficiently rigorous in forcing parties to define the real issues in dispute because of pleading rules (which says that if evidence comes up that doesnt encompass an aspect in your pleading, then you cant take advantage of it then youre encouraged to plead as broadly as possible) and adversarial nature of the trial process (inclined to force plaintiff to proof dont want to help them too much). - Case management practice notes now supplement the pleading process by requiring certain other documents to be filed at the same time as the statement of claim (SC CL 5) one of these GCM document might contain a concise summary of facts that the parties plan to prove on the issue of liability (not law) - These supplements to pleadings (GCM documents) are not pleadings GCM documents dont limit you - The pleadings limit the extent of discovery and interrogatories pleadings are your limiting factor - Pleadings also govern the extent of the relevant evidence - Once an allegation is made, such as in a statement of claim, and the allegation is denied for e.g. in the defence, the language of pleading rules says that the issue is joined. - Once issues are joined, the pleadings confine the court as much as the parties because in general, relief is confined to that available on the pleadings unless the parties have deliberately chosen some diff basis for the determination of their respective rights and liabilities.
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Relief is confined to that available on the pleadings: what does this mean?... Banque Commeriale SA v Akhil Holdings Ltd FACTS: - Akhil sued 3 defendants, D1, 2, 3 (the Bank), for breach of trust for selling shares without authority. - All the defendants filed a defence pleading a time bar. - Akhil served replies on D1 and D2, alleging fraudulent breach of trust by the bank (D3), which overcame the time bar. Copies of the replies were delivered to the bank, but Akhil made no reply formally to the banks limitation defence. o If Akhil had formally replied, the bank would have been entitled to demand far more detail of the fraud in the pleadings. o The bank did not attend the trial. - Akhil lost at trial but won on appeal with the Court of Appeal finding fraud as against all 3 defendants (bank had participated in the appeal). - The bank appealed to the HC where one of the main issues was whether the C of A could making a finding of fraud against the bank when that issue was not raised on the pleadings it was only raised in the pleadings as against D1 and D2.
HELD: Mason CJ and Gaudron J (Brennan J agreeing): - Akhil was entitled only to such relief as was available on the pleadings. - The Bank is therefore entitled to judgement in the action on the basis that its defence that the action was statute-barred was made out. o Akhil never replied to D3 and never identified that the banks statute -barred defence didnt apply he only did this re D1 and D2 o HC said there was no pleading that allowed Akhil to assert against the bank that the time barr didnt apply, so the time barr applied because Akhil accepted the last pleading. [What about r14.27? After the defence has been delivered, the last unanswered pleading (could be the defence) is deemed to have been denied unless further pleadings are served] - Their Honours also said: o The rule that, in general, relief is confined to that available on the pleadings secures a partys right to this basic requirement of procedural fairness. (Although the bank has informal notice, they took the view that they werent engaged in this because the action is time barred and the plaintiff had done nothing to persuade them that the time-bar doesnt apply.) o Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities 89
Asic v Rich 3. Each objection asserted that the line of questioning was outside ASICs pleading and amount to an attempt to establish a previously unpleaded case; 6. The obligations of ASIC to set out its case against the defendant clearly in its pleadings is enhanced by the considerations that ASICs case alleged serious contraventions of the law by the defendant 7. The principles stated by Mason CJ and Gaudron J (in Banque Commercial) are of fundamental importance, but there are some limiting principles, consistent with their Honours observations, that need to be kept in mind in the present case. - The case notes that cross-examination on issues that arise (not raised in the pleadings) is permissible o But, when the context is understood, it can be seen that the cross-examination is permissible because it is directed against the defence to the pleaded case. On the other hand, it would not be permissible for the plaintiff, in final submissions, to rely on this evidence to make out a misleading conduct case that he had not pleaded (assuming no grant of leave to amend the plaintiff) o You can only take advantage of the evidence that supports the action that youve pleaded. You cant take advantage of evidence that supports another action that you have not pleaded unless you can convince the court to allow you to amend your pleading to include that other action courts going to be concerned about how much prejudice the other partys going to receive by allowing you to amend.
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Service Amendment, Mistakes Class 8: Service Amendment, Mistakes (Chapter 8: 8.430 to end) (Chapter 9: 9.140-9.170 + 9.180 [only paras 85-88])
Material Facts you have to put a summary of material facts in your pleading Material facts facts that support each and every element of your cause of action The pleader must start with the cause of action or defence and its elements. The material facts will be those facts that are critical to supporting each of the elements of the cause of action. o E.g. in a cause of action concerning breach of contract, the material facts will be those facts that are critical to first supporting that a contract exists, secondly that there was a term or terms of the contract, thirdly that the term(s) of the contract were breached and fourthly that the breach of he term(s) in the contract left the plaintiffs to be damaged.
UCPR r14.7 Pleadings to contain facts, not evidence Subject to this Part, Part 6 (Joinder) and Part 15 (Particulars), a party's pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.
Charlie Carter Pty v Allied Employeers Association (WA) - In Bruce v Odhams Press Ltd it was said to be insufficient merely to allege in general terms a cause of action. The cause of action must be alleged with particularity. - Scott LJ gave the following example: it would not be sufficient for plaintiff in an action of trespass to plead the defendant trespassed on my lands and took away and converted to his own use two of my horses without stating particulars of the times and place when the trespass is alleged to have taken place. A plaintiff must state sufficient particulars of his alleged caused of action, which will enable the defendant either to admit it or deny it or otherwise plead a defence to it - The sufficiency of the pleading may be judged by reference to o It disclosing a reasonable cause of action and o The requirement for sufficient particularity that the respondent knows in advance the case they have to meet
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Service Amendment, Mistakes
Evidence youre not allowed to plead evidence In regard to r14.7 (Pleadings to contain facts, not evidence) - Evidence = the means by which the material facts are to be proved o e.g. evidence could be the testimony of witnesses called at the trial, affidavits - Evidence should not be pleaded r14.9 References in pleadings to documents and spoken words If any documents or spoken words are referred to in a pleading:
(a) the effect of the document or spoken words must, so far as material, be stated, and (b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material
Also, unless specific spoken words or a term(s) in a document are critical to supporting an element of a cause of action, the pleader should not plead details of the conversation or quote the contents of correspondence from which the court will be asked to make findings, e.g. the making of the contract. r14.19 Pleadings may raise points of law A pleading may raise any point of law. But no bare assertions of law Pleadings should not contain bare allegations or conclusions of law. o E.g. if the plaintiff alleged in the statement of claim that the def negligently caused damage to the plaintiff and does not provide any further info about the acts of negligence, a conclusion of law is being presented as a material fact. Markisic v Department of Community Services of NSW (No2) o In practice, a statement of claim is more coherent if it identifies the cause of action. However, identifying the cause of action will only provide clarity when all the material facts supporting that cause of action are pleaded as well its ok to say def was negligent, but before you say this you have to set up material facts about duty owed, breach of duty and damages sustained.
92
Service Amendment, Mistakes Surprise prevent trial by ambush ensures that there are sufficient details in SoC to allow def to know the case he has to meet, and sufficient details in defs defence so plaintiffs know what the issues are r14.14 General rule as to matters to be pleaded specifically (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.
When all material facts are alleged in the pleadings, the opponent has notice of the case that must be met. If unpleaded allegations are raised at the trial without notice to the opponent, surprise is the result: r14.4 Strictly speaking, a party is not allowed to prove facts that are not properly alleged in the pleadings, especially if it would be unfair to the other party o However, obligations in regard to avoiding surprise do not relieve the plaintiff from fulfilling his or her legal burden of proof
Kasupene v Ajax Foundary Pty Ltd rules about surprise dont relieve a plaintiff from proving their claim (burden of proving any aspect of negl is always on P) FACTS: - Plaintiff (Kasupene) pleaded his foot got injured by tray dropped by defendants (Ajax) crane => negligence - During a casual conversation, def says he wont raise mechanical failure as a defence - Particulars are requested from def def answers those particulars - Court says in these particulars, there was some suggestion that everything was in issue - During trial, Ajax suggests mechanical failure - P says def didnt plead that in defence and was caught by surprise (r14.14) HELD: - Court says there was notice about the possibility of mech failure being an issue from the defs particulars. - Court held that def didnt have to plead it in his defence because mech failure is not a defence. P has the burden of proof in relation to proving any aspect of negligence in order to sustain his claim, so P cant complain that def didnt alert him that mech failure was an issue because P always had to prove his claim i.e. prove mech failure
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Trial by Ambush not OK Glover v Aus ultra Concrete Floors Pty Ltd FACTS: - P thinks by virtue of Ds defence that the facts re how he injured himself are not going to be an issue, just the quantum of damages - At trial, Ds case was different in that fraud was alleged HELD: - 53. The general impression the defendant gave was that the main thrust of the respondents resistance at trial was to be the denial of allegations of negligence and a challenge to the extent of the damages suffered by the appellant. - 54. The respondents case at trial, however, was a different kettle of fish - 55. The respondents case at trial was that the appellant had lied when he said that he had been injured by slipping and falling at work. This was tantamount to alleging fraud. o (There are special rules in relation to alleging fraud you have to give particulars, details of any fraud allegation D didnt do this) - 61. In my opinion, the respondents non-admission plea in answer to the appellants detailed description of the accident contained in the statement of claim would have resulted in the appellant being taken by surprise when, during the course of the trial, it was first made plain that the respondent was seeking to make an affirmative case in regard to the question whether the appellant was injured by an accident at work in the manner asserted by him. [In SoC, P would have put P was injured when tray fell on his foot at work in first paragraph. In defence in relation to this fact, D said not admitted, but D couldve said denied. This lulled P into believing that how he injured himself was not an issue court says this defence led plaintiff to be surprised)
Particulars broadening out the MFs in order for parties to call evidence later
UCPR 15.1 15.10 on page 286
Particulars are details of the material facts on which the party relies in his or her pleadings. (Details in relation to aspects of your claim/pleading) They limit the generality of pleadings so as to more sharply define the issues but they dont modify the cause of action. Particulars are not considered to be pleadings and if particulars are not pleadings, the opponent is under no obligation to plead to them in response. Also because particulars are not pleadings they do not cure defective pleadings. (Very theoretical under the technical pleading rules) 94
Service Amendment, Mistakes o In reality, courts allow amendments to pleadings e.g. if there are material facts in particulars, which should really have been in your pleadings, court asks if you want to amend your pleading - Such technicality shouldnt be given so much weight in light of s56 we want quick, cheap, just resolution of dispute o If courts allow amendment, court has to allow adjournment to give defendant opportunity to plead to the material facts in particulars defendant can be punished by cost order if dont plead In practice, defective pleadings are often cured by delivery of particulars, usually voluntarily, because an order from the court to provide particulars would very likely result in a cost order.
BWK Elders Aus Pty Ltd v Westgate Wool Co Pty Ltd (No 2) - The strict distinction between material facts and particulars has not been rigidly adhered to, and technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received. (e.g. if MFs are in particulars rather than pleadings) - The courts focus has been upon ensuring the case is identified with clarity so that the opposing party knows the case to be met and the issues for trial are identified. - The focus upon case management, to ensure the efficient and fair conduct of proceedings, has also moved the emphasis from technical pleading rules to focusing on ensuring that in substance, the objectives of pleadings are fulfilled. - Objective of pleadings: o To provide sufficient information to the party to allow each of them a fair opportunity to meet the issues in the proceedings
Particulars and Evidence particulars, in identifying the issues, is supposed to confine the
evidence can only use evidence to support statements contained in the pleadings & particulars of your SoC Allianz Aus Insurance Ltd v Newcastle Formwork Constructions Pty Ltd - 18. The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be lead can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. - Provided the other is not treated unjustly, in practice, latitude is given to adduce evidence beyond the boundaries identified by the particulars Douglas v John Fairfax and Songs Ltd - Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning - It is a matter within the discretion of the Trial Judge whether to o Permit the evidence (subject in some cases to an amendment of the particulars, but in any event subject to terms so as to meet any prejudice to the other party) or 95
Service Amendment, Mistakes o To hold the party whose particulars were deficient to the issues of fact to be investigated, as limited by those particulars i.e. they wouldnt be able to derive benefit from the evidence
Striking out Pleadings

Court has power to strike out any pleading o if it does not disclose a reasonable cause of action or a defence, o if it has a tendency to cause prejudice, embarrassment or delay in the proceedings, or o if it is otherwise an abuse of the courts process.
r14.28 Circumstances in which court may strike out pleadings (SoC & Defences) (1) 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, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). Markisic v Dpt of Community Service of NSW (No 2) 26.16 - 34. Under the UCPR, a pleading must contain only a summary of the material facts on which the party relies and not the evidence by which those facts are to be prove (r14.7) - There must be pleaded specifically any matter which, if not pleaded, may take the opposite party by surprise (r14.17) - A pleading must give all necessary particulars to enable the opposite party to identify the case the pleading requires him to meet (r15.1), and in particular must give particulars of fraud or misrepresentation (r15.3). - Where there are allegations of negligence or breach of statutory duty, the facts and circs constituting the alleged negligent act or omission or the alleged breach of stat duty must be given, so far as possible separately for each alleged negligence act or omission or breach of statutory duty (r15.5). - 35. These are particular requirements, but more generally it is necessary that the pleading be intelligible and enable the def to know the case which the def is called upon to meet, to plead to it and to respond to it by evidence at a trial. That is essential if justice is to be afforded by the defendant, and underlies in part summary dismissal of proceedings and striking out pleadings for vexatiousness, failure to disclose a reasonable cause of action or tendency to cause prejudice, embarrassment or delay (r13.4 and r14.28).
96
Service Amendment, Mistakes Embarrassment cant understand pleadings Priest v NSW - Embarrassment in this context refers to a pleading that is susceptible to various meanings (ambiguous), or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleadings may be embarrassing. - 36. A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to. Pleadings that do not disclose a reasonable cause of action Silverside Superfunds Pty Ltd v Silverstate Developments Ptd Ltd - If the plaintiff can establish that the cause of action is arguable upon the facts alleged, then there will be no striking out of a pleading upon the ground that there is no reasonable cause of disclosed. - It is not essential the plaintiff be able to establish that, necessarily, such a cause of action must exist, let alone that is must succeed. (Hard to get struck out via this)
Amendment and Mistakes

Introduction - One of the main objectives of the rules concerning pleadings is to ensure that the parties know the case they have to meet. - Pleadings are very often drafted at an early stage in the proceedings and as more info becomes known or decisions are made regarding the issues in dispute, changes or amendments may well have to be made to docs in the proceedings. The court has wide powers (s64) to make amendments and theses powers can be exercised at any stage of the proceedings. The court also has a more limited power (s65) to make amendments that allow matters to be raised that otherwise would be statute barred. Despite such broad powers to rectify mistakes or omissions, there are some circs where courts power to cure mistakes cannot apply o While the court can cure procedural irregularities, nullities cannot be cured. s56: (overriding purpose of just, quick, cheap resolution of real issues), principles is of significant important in courts exercise of these powers.
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Amendment Logic would dictate that amendments at the very early stages of proceedings will be more easily obtained that those requested at a later time.
UCPR - A plaintiff may without leave, amend a statement of claim once within 28 days of the filing of the statement of claim, however if a date has been fixed for trial within that time an order from the court is required to amend the statement of claim - r19.1 - If the statement of claim is amended within 28 days of its filing but after the def has filed a defence, the def may amend the def within 14 days after service of the amended state of a claim - r19.1 - An amendment under r19.1 can include an amendment that has the effect of adding or removing a party - r 19.2 - The date of commencement of the proceedings for the added party is taken to be the date on which the amended document is filed. This conformed to -r6.28.
Page 321 Civil Procedure Act 2005 s64 is the main amendment power (discussed later) However, court still has a wide array of powers that can facilitate amendments as well as other matters: o s14 of the CPA is the dispensing power: it provides the court with power to dispense with any requirement of the UCPR if satisfied that it is appropriate to do so. o s16 provides the court with power to give directions in regard to any aspect of practice or procedure for which there are no UCPR or practice notes. It also provides that anything done in accordance with such directions is taken to be validly done. o s61 provides the court with power to give directions for the speedy determination of the real issues between the parties. s61 also allows the court to make a range of orders, including dismissing proceedings where there has been a failure to comply with directions.
Section 64 wide power
98
Service Amendment, Mistakes s64 CPA governs amendments outside the 28 day period and if leave is required applications should be made by notice of motion under UCPR Pt 18. r42.6 creates a presumption that unless the court otherwise orders, a party that amends a pleading or summons without leave must, after the conclusion of the proceedings, pay the costs occasioned by the amendment.
r42.6 Amendment of pleading etc without leave Unless the court orders otherwise, a party that amends a pleading or summons without leave must, after the conclusion of the proceedings, pay the costs of and occasioned by the amendment.
s64 CPA is the main power available to amend docs. This power can be exercised at any stage of the proceedings. The occasioning of any prejudice to the parties is a relevant consideration when determining whether to permit (or refuse) an amendment. (Fexuto v Lombe and Yates) However, that consideration is one which is taken into acct in the context of s64 being subject to the overriding purpose in s56, as well as some of the relevant considerations in s57 and s58.
Rayscan Management Pty Ltd v Siv Nandan Moodliar Dennis v Australian Broadcasting Corp was discussed in this case - This case (Dennis) lies in the face of similar case of Qld v JL Holdings, where HC held justice is main priority - It is a recent decision by the Court of Appeal of particular significance which emphasises the statutory underpinning of the overriding purpose duty. - Now court held weve got the CPA, times have changed - Nicholas J at first instance had refused to grant leave to the applicant to replead and exercised the discretion solely on the basis that the limit to which leave should be given to replead has been well and truly reached by what was effectively the 6 th pleading HELD: - Held the Trial Judge was correct to do so no error had been identified which would justify this CoA interfering with the exercise of the discretion. Spigelman CJ - [28] The respondent invoked the authority of JL Holdings in support of its ability to amend, even for the 5th time. Such principles can be, and have been, modified by statute both directly and via the stat authority for Rules of Court. - [29] In this state, JL Holdings must now be understood as operating subject to the stat duty imposed upon the courts by s56(2) of the CPA, which requires the Court in mandatory terms to give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when exercising any power under the Act or Rules - That duty (under s56(2)) constitutes a significant qualification of the power to grant leave to amend a pleading under s64 CPA. 99
Hill v Reglon Pty Ltd [2007] NSWCA - explanatory case s64(3) - 128. The appellants contend that the claim against Citadel should have been dismissed, as the alleged act of conversion upon which Reglon relies did not occur until after the proceedings had been commenced. HELD: - 129. This ground should be rejected. - s64(1) of CPA provides that a court may, at any stage of proceedings, order that a doc in the proceedings be amended. - The power of amendment is to ensure that the court determines the real questions raised by or otherwise depending on the proceedings and includes the purpose of avoiding multiplicity of proceedings: s64(2) - Pursuant to s64(3) an amendment may be made notwithstanding that it has the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings.
Section 64 - Effective date of amendment - Generally an amendment takes effect from the date of the original document that it amends. - However, where the amendment has the effect of adding or substituting a cause of action which has arisen after the commencement of the proceedings, the date of commencement of the proceedings in regard to that cause of action is taken to be the date on which the amendment was made: see CPA s64(3), UCPR r19.2(4) and r6.28. - The position is different if s65 is engaged. Section 65 more limited power - Tells us what kind of amendments made AFTER statute of limitations expired - It allows very narrow kinds of amendments to avoid limitation periods defences (despite anything to the contrary in Limitations Act 1969 if proceedings were commenced before the limitation period expired.) - Thwarts the limitation defence this is why there are only very limited circs where such an amendment can be made - s65 allows court to make amendments that raise statute-barred matters, namely: o (b) correcting a mistake in the name of a party (+ add new party) o (a) changing capacity in which the p sues o (c) permitting the addition or substitution of a cause of action that arose after the commencement of proceedings if the new cause of action arises out of the same substantially the same facts as originally pleaded - An amendment made pursuant to s65 is taken to have been made on the date that the proceedings were commenced (relation-back principle circumvents limitation period, since date of amendment is deemed to be within limitation period) (unless crt orders otherwise) Section 65(2)(c): adding/substituting new cause of action 100
Air Link Pty Ltd v Paterson (No 2) explanation of s65(2)(c) - 47. When a party amends, the general rule is that the amendment takes affect as if it had always been in the relevant pleading. This in a sense is the very nature of an amendment and it has nothing to do with whether or not limitations issues are in play. - The generality of the right to amend cannot be exercised where it would do injustice to the other party. - In Weldon v Neal it has been a settled rule of practice that except in very peculiar circumstances, an amendment will not be allowed which sets up a cause of action which, at the time of the amendment, is barred by a statute of limitation. The plaintiff is treated as having already commenced his action in respect of the claims made, and he is not permitted to introduce new claims by amendment for this would be regarded as being in substance, though not in form, the bringing of a new action for claims which are already barred by statute: - In McGee, this court held that the rule in Weldon v Neal had thereby been totally destroyed (per Glass JA at 280). So long as the amendment substituting a cause of actions arose out of the same or substantially the same facts, it was open to the court to permit it notwithstanding the earlier expiry of a relevant period of limitation. - 72. The plaintiff in Proctor had claimed damages arising out of the death of her husband who was a passenger on a charter flight from Sydney to Dubbo. The case bore similarities to the present one in that the original pleading omitted an essential allegation as to the intra-state nature of the carriage and contained only an irrelevant allegation of negligence. Being an intra-state flight, the carriers liability in Proctor was created by the Civil Aviation (Carriers Liability) Act 1967 (NSW), this States counterpart of Pt IV of the Civil Aviation (Carriers Liability) Act 1967 (NSW) engaged in this appeal. - 74. More than 2 years after the accident, the plaintiff in Proctor sought leave to amend her statement of claim so that it pleaded the statutory cause of action. Leave was refused by Cross J at first instance who held that s34 (as incorporated into State law) had operated to extinguish (rather than bar recovery upon) the relevant cause of action. - 75. This court reversed Cross J and held that r4 (now s65) validly empowered the SC to grant an amendment to the statement of claim effectively to include a cause of action which had otherwise already expired or been extinguish according to statute law. As indicated already, this Court explained McGee and justified its decision by ref to the width and purpose of r4 (s65) and the continued power to apply the relation back principle. - r4 (s65) requires the amended pleading to arise out of the same or substantially the same facts. This is a legitimate and appropriate modification of Weldon v Neal.
Section 65(2)(b): Mistake in the name of a party

Greenwood v Papademetri - Ms P slipped on a footpath because of mud said to have escaped from building work on a house. Ms Ps statement of claim identified Jamiel Antoun as (a) builder, and (b) the owner/occupier 101
Service Amendment, Mistakes Ms P now seeks to amend statement of claim to substitute Linda Antoun as the owner/occupier The q is whether this amendment, after the expiry of the relevant limitation period, can be permitted If a party joined under joinder rules r6.19 or 6.24 joinder becomes effective as of the date that the order for joinder was made (r6.28) (no relation back principle here) If however a party can be joined under s65, s65(3) has the effect unless the court otherwise orders, that the amendment is taken to have had effect from the date on which the proceedings were commenced (thereby circumventing the limitation period) (relation back principle). Thus if a person who was not previously a party can be made a party pursuant to s65, and the proceedings themselves were commenced before the expiry of an limitation period applicable to that person, any limitation defence that that person would have had, if new proceedings had been commenced against him or her on the date the order was made, becomes unavailable. In this way s65 has the practical effect of an amendment to the Limitations Act 1969. s65(5) makes explicit that s65 is intended to have such an effect. The power that is conferred by s65(2)(b) is purposive in its nature. It authorises the court to grant leave to a Pl to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words whether or not the effect of the amendment is to substitute a new party do not limit the width of that power. Rather, they make clear that the power can apply in some circs where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under s65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake. 34. s65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the courts opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases, where an amendment is sought under s65(2)(b) there may be considerable argument about whether a mistake in the name of the party has those characteristics, although no such argument was put to us in the present appeal. 35. Even if a proposed amendment is one whose effect could be described by the language in s65(2)(b), there is still a discretion in the court whether to permit that amendment. s65(2) contemplates that any amendment made under s65(2) will be effected through leave granted under s64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under s65(2) needs to be exercised in accordance with s64(2). s64(2) itself requires the court to exercise its discretion in according with s58 (follow dictates of justice) which in turn requires the court to have regard to s56 (overriding purpose) and s57 (objects of case management). Even if it were not inherent in the grant of a discretion to a judicial officer, s58(2)(b) enables the court to have regard, in an application for an order under s65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation 102
Service Amendment, Mistakes period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made. Whether the amendment is one to correct a mistake in the name of a party to the proceedings, within the meaning of s65(2)(b) 54. Bridge Shipping Pty Ltd v Grand Shipping SA concerned a shipment of goods that were damaged in transit. The owner of the damaged goods sued the shipowner in connection with that damage, not knowing that the ship had been let on a bareboat charter. The effect of the charter was that it was not the owner but the charterer that employed the ships crew and had issued the bill of lading. After expiry of a limitation period, the shipping sought to amend the initiating process under the Victorian equivalent of s65(2)(b) to substitute the name of the charter for the name of the owner. o 1. A plaintiff may make a mistake in the name of a party because, although intending to sue a person whom the plaintiff knows by a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that persons name. o 2. Equally, the plaintiff may make a mistake in the name of a party because although intending to sue a person whom the plaintiff knows by a particular description, for e.g. the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. o In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. 57. In the result the application in Bridge Shipping failed. It failed because Bridge Shipping had at all times intended to sue the owner of the vessel. Its mistake did not concern the name of the entity that was the owner of the vessel. Rather, its mistake was in thinking that the owner of the vessel, rather than the charterer, was the carrier of the goods.
Multiple Substitution? 61. McInerney J then considered whether the rule enabled the names of 3 defendants to be substituted for the name of one defendant. - 14. the entity intended to be sued is that entity with the properties described in the statement of claim. What has appearedis that on the information supplied by the defendants, there is more than one entity that has such properties. In response to an argument that what was being done was adding parties rather than substituting parties: - 15. I cannot accept, in principle, that it becomes clear that if more than one party shares certain properties, then in those circumstances, if there has been a mistake in the naming of the party, that it is not possible under this rule to substitute more than one party. The rule of construction is that the singular form includes the plural (see s8(b) Interpretations Act 1986). I cannot accept this is as adding of parties. Adding of parties normally includes the leaving of the original party in the action. In this case, this is clearly a substitution of 3 parties for one party. 103
Service Amendment, Mistakes 69. In my view, if it was clear that a plaintiff had intended to sue the owner of a particular piece of land and sued A in the belief that A was the owner of the property, but in fact the owners were A and B, there is no reason why and an amendment to add B could not count as an amendment so as to correct a mistake in the name of a party to proceedings.
Irregularities and Nullities

The court has broad power in s63 to treat as an irregularity anything done or omitted to be done and any failure to comply with the requirements of the CPA or UCPR. The irregularity does not invalidate the proceeding or any step taken, nor any document, judgement or order in the proceedings. Irregularities are matters about which the court has jurisdiction and power to make orders or give directions. The court can set aside the proceedings or step, document, judgement or order in the proceeding or make an order for amendment to rectify the imperfection on the application of a party if that party makes the application within a reasonable time, and in any case before that party takes a fresh step after becoming aware of the failure.
s63 is a curative power and useful for a myriad of circumstances. Judd v Warwick - The plaintiff sued his solicitor. A statement of claim was filed but not served before the expiration of a limitations period. Though the time for service had expired, the plaintiff sent the defendant a sealed statement of claim purporting this to be service. The defendant complained and the plaintiff sought to have the time to serve the statement of claim extended. - Johnstone DCJ held that s63 applied because: - A failure to service originating process personally, and a failure to serve a statement of claim within the time prescribed, are failures to comply with the rules of court as to the time and manner. Thus, they are to be treated as procedural irregularities that do not invalidate the proceedings and can be cured by s63 of the Criminal Procedure Act. Deveigne v Askar differentiating between a nullity and an irregularity 87. Lord Denning in MacFoy v United Africa Co Ltd [1962] AC observed that no Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but a useful one was whether, if the other side waived the flaw in the proceedings or took some fresh step after knowledge of itcould he afterwards in justice complain of the flaw? If the other side could complain despite the subsequent step, the flaw was a nullity 88. In Re Pritchard [1963] Ch, Upjohn LJ accepted that no precise definition of irregularities or true nullities was possible. He concluded that a defect which was fundamental to the proceedings would make them a nullity, and stated that the waiver test in MacFoy cannot be a completely legal test and added that the Court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of [an irregularity provision] when justice can be done as a matter of discretion
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SERVICE [8.430 to end of Chapter]

Service is a term used for methods of alerting people that there are proceedings against them The originating process and copies of it are usually filed at court registry and stamped with court seal original then left in registry and copy served on def(s). Service founds the courts jurisdiction. (Laurie v Carroll (1958)) court cannot exercise any of its powers unless it has jurisdiction over the def Because the main purpose of service is to bring proceedings to the attention of the def, a copy of the originating process is served personally on the def o Person serving completes an affidavit of service, attesting to the fact that def has been served r35.8 identified important details that must be contained in affidavit of service (where, when, how and by whom service was effected, statement as near as practicable to actua words used by def, statement that person making affidavit (deponent) is over 16 years old. After originating process has been served, if def does not file an appearance or a defence, the plaintiff may be able to obtain a default judgement Service must follow UCPR if not, it is irregular and a default judgement liable to be se aside unless the court overlooks the irregular service. (s63 give crt power to overlook the irregular service)
Page 299 UCPR r10.1 - A party who files a document must as soon as practicable serve copies on each other active party r10.5 various ways of serving a document personal service posting copy addressed to person leaving a copy addressed to person at persons address for service with a person who is apparently of or above age 16 and apparently employed or residing at that address
Personal Service originally process usually must be served on def personally - r10.20(2) r10.21 how personal service is effected
Personal service can be affected in one of two ways: 1. If the person being served does not refuse to accept the document it is validly served by leaving a copy of the document with the person being served. In this context it is not necessary that the nature of the doc be described to the defendant . 105
Service Amendment, Mistakes o A doc can be left with the person even if the doc is not taken into that persons physical possession. Service was held to be valid in Ainsworth v Redd where the defendant told the process server to give it to his representative who was standing next to him and afterward the def was heard to say wed better look at these. 2. If the person being served does not accept the doc, a copy of the originating process can be put down in his or her presence and the nature of the document should then be explained to the person. (It doesnt have to be elaborate, just say its a statement of claim) o In Graczyk v Graczyk, the requirement of putting the document down in the persons presence was fulfilled by pushing it under a locked door. o In Re Hudson; Ex parte G E Crane & Songs Ltd it was fulfilled by attaching the document to the front of the locked door whilst advising the defendant that this was occurring. - In circumstances where there is violence or apprehended violence, the process server is permitted to leave the document as close as practicable to the person being served. The central purpose of ensuring service is valid is that the doc is brought to the attention of the person being served. - If there is any doubt that valid service has taken place, it is prudent to make an application to the court for confirmation of informal service under r10.14. Service constituting personal service There are alternatives forms of service that are taken to constitute personal service on various entities. o r 10.9 - unregistered business name; o r10.10 - registered business name; and o r10.20 - service on a partner in a limited partnership For these entities personal service is constituted by leaving the doc with a person over 16 years of age at the place that the business is carried out or by sending the doc by post, addressed to the def at the address of the business r10.22 - personal service on a corporation effected by personally serving a principal officer of the corporation or by serving the document on the corporation in another manner prescribed by the Corporations Act 2001 (Cth) r10.26 - where there is strong evidence that the person to be served is keeping house. o This means that the person to be served remains in premises to which a process server cannot lawfully or practicably obtain access.
Acceptance of service by solicitor r10.13 Personal service requirements can be dispensed with if the partys solicitor accepts service. The solicitor accepting service must make a notation on the document as evidence that he or she has accepted service on behalf of the person to be served.
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r10.13 Acceptance of service by solicitor If a solicitor notes on a copy of: (a) any originating process, or (b) any other document required or permitted to be served in any proceedings, but not required to be personally served, that he or she accepts service of the document on behalf of any person, 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. Substituted Service r10.14 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, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (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 the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service.
Substituted service may be available where it is impracticable for prompt personal service to take place. Instead of personal service or the mode of service required by the rules, the court can order that such other specified steps be taken in order to bring the doc to the attention of the person concerned. Typically, substituted service orders are made when the defendant has been evading service.
There are 2 matters to be satisfied:

1. The kind of service required by the rules cannot practicably be undertaken. To establish impracticability, evidence of a prior attempt to service in accordance with the requirements of the rules would be useful, or evidence that such service would be futile. Mere cost or inconvenience to a plaintiff will not be persuasive. 2. The steps proposed to be taken instead of service pursuant to the rules will address the purpose of bringing the document to the notice of the person concerned . There should be evidence showing that the substituted service is reasonably likely to bring the proceedings to the defendants attention. (Chappell v Coyle (1985) NSWLR). Affidavit evidence is required deposing to the inquiries that have been made, and support must be provided about the efficacy of any proposed alternative ways of bringing the proceedings to the attention of the party to be served.
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Service Amendment, Mistakes It is a question of degree as to how much effort is required by the plaintiff to locate the defendant prior to obtaining an order for substituted service. Inquiries might be made of employers, employees, commercial contacts and family, as well as searches of property information authorities (e.g. councils, land title offices). If an address can be found, registered post or service on the spouse might be an alternative substitute. Even if such searches are fruitless, the info obtained might be useful for supporting the efficacy of the alternative steps suggested. The degree of urgency will also be taken into account - Amos Removals & Storage v Small [1981] NSWLR summons was issued on a Thursday that had to be served by 5pm Friday and there were 19 defs spread across NSW.
Confirmation of informal service - An application for confirmation of informal service is made retrospectively. - If despite service being effected it did not comply with the rules of court and the proceedings have nevertheless been brought to the attention of the person served, an application for an order can be made that the defendant has been taken to be served on a date specified by the court. - Satisfying the court that the def has been accorded procedural fairness and that the proceedings have in fact been brought to his or her attention is very important. Service beyond the jurisdiction Service outside NSW but within Aus - Service within Australia but outside NSW is usually effected in accordance with the Service and Execution of Process Act 1992 (Cth) (SEPA). - Can be effected without leave of the court and leave is not required to proceed to a default judgement if defendant does not file an appearance or a defence.
Service and Execution of Process Act 1992 s15 Initiating process may be served in any part of Australia (1) An initiating process issued in a State may be served in another State. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with s9 (4) Service on any other body corporate must be effected in accordance with s10
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Service Amendment, Mistakes The originating process should bear an endorsement that the plaintiff intends to proceed under SEPA: see UCPR r10.3(3). A notice to the defendant (see Service and Execution of Process Regulations 1993 (Cth) Sch 1 Form 1) pursuant to s16 of SEPA should be attached to the originating process. This notice encourages the defendant to seek legal advice and sets out his/her rights Matters to be taken into account for the purposes of determining an application to stay the proceedings are contained in s20(4) of SEPA and include the place of residence of the parties and of the witnesses likely to be called in the proceedings, the place where the subject matter of the proceeding is situated; the financial circs of the parties, so far as the court is aware of them, the law that would be most appropriate to apply in the proceeding. A matter that is not taken into account is the fact that the proceeding was commenced int eh place of issue. The defendant has 21 days to make such an application or file an appearance (s17 SEPA). The appearance must state an address within Australia for service ( s18 SEPA).
Service Overseas If proceedings are commenced in the District Court and a subsequent o/s party is joined, transfer of the proceedings to the SC is to be undertaken in order for leave to continue the proceedings. Transfers from the District Court to the Supreme Court are to be made in accordance with UCPR r44.7 UCPR Pt 11 provides the rules for service overseas, not interstate. There are 2 modes of service: by private means (Div 1) or by diplomatic channels (Div 2). Both modes require leave of the court to continue proceedings after service (see UCPR r11.4), unless the defendant files an appearance. Serving pursuant to Div2 diplomatic channels) is cumbersome and frequently slow. Div 1 (Private means) is more often used and this will be the focus of discussion here. r11.2 - originating process may be served outside Australia in the circumstances referred to in Schedule 6. PAGE 304 The contents of Schedule 6 basically dictate the necessary broad nexus between the dispute and the forum r11.4 - No leave is required to serve the originating process however if the def does not enter an appearance, leave of the court to proceed is required r11.6 - Personal service is also not required as long as service is undertaken in accordance with the law of the country in which service is effected Substituted service in place of personal service is available in accordance with the UCPR. However substituted service is allowed only if it is permissible as a matter of law to serve the defendant by personal service. This means that substituted service of a person outside Aus may be permitted instead of personal service only if the requirements of Schedule 6 can be fulfilled. Laurie v Carrol an order allowing substituted service was set aside because when it was made, the defendant had left the jurisdiction and the cause of action did not fit within the rules for service outside the jurisdiction. An order for substituted service can be validly made, if the cause of action is such that the originating process is allowed to be served outside the jurisdiction.
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Service Amendment, Mistakes Leave of the court is not required to serve outside Australia however once the defendant has been serviced, leave of the Supreme Court is required in order to proceed against the defendant: see UCPR r11.4.
Agar v Hyde whether an assessment of the strength of the plaintiffs case is a relevant matter to be considered when determining whether leave to proceed will be given - Both appeals are brought by defendants who were served outside Aus with a statement of claim by which (in each case) the plaintiff claimed damages for personal injuries he sustained when playing rugby union football in a match conducted in NSW - r11.2 and Sch 6 permits the service of originating process outside Australia only in certain specified cases. If a def served outside Aus has not entered an appearance, an application for leave to proceed must demonstrate that one or more of the cases set out in r1A [Sch 6] applies. Those cases are described either as where the proceedings are founded on a particular kind of claim, or as where the subject matter of the proceedings is of a particular kind. - 49. To take the particular paragraphs which the respondents relied on in these matters, it was said that the originating process in each action might be served outside Aus because: (from Sch 6) o (a) the proceedings are founded on a cause of action arising in the State; o (d) the proceedings are founded on a tort committed in the State; o (e) the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring o (i) the proceedings are properly brought against a person served or to be served in the State and the person to be served outside the State is properly joined as a party to the proceedings. - If defendant doesnt file an appearance or defence and the plaintiff asks for leave to proceed, the inquiry is whether the claim falls within the relevant paragraph or paragraphs of r11.2 and Sch 6. This inquiry neither requires nor permits an assessment of the strength of the plaintiffs claim. The application of these paragraphs of Schedule 6 depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. - Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of Sch 6, service outside Aus is permitted, and prima facie the plaintiff should have leave to proceed. r11.7 application to set aside originating process served outside Australia r11.7 Setting aside originating process served outside Australia (1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. (2) Without limiting subrule (1), 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, or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings.
This rule allows the defendant to make an application for an order that the originating process (served outside Aus) be set aside 110
Service Amendment, Mistakes 55. r11.7 is cast in general terms and it would be wrong to attempt some exhaustive description of the grounds upon which the rule might be invoked. Nevertheless, it may be expected that 3 common bases for doing so are: a. That the claims made are NOT claims of a kind which are described in UCPR r11.2 and Sch 6. b. That the court is an inappropriate forum for the trial of the proceeding c. That the claims made have insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims. 56. If the court is NOT persuaded that it is an inappropriate forum for trial of the proceedings, only then do the prospects of success of a claim made in originating process served outside Aus fall for consideration. Court would only grant application to set aside originating process served outside Australia if there was a high degree of certainty that the claim would fail if it went to trial in the ordinary way. This is the same test for granting summary judgement.
Is the court an inappropriate forum? Voth v Manildra Flour Mills Pty Ltd enunciates the test for whether a court is an inappropriate forum 1. A plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Except where it is established that the forum is clearly inappropriate 2. The traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. - Oppressive should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging - Vexatious means productive of serious and unjustified trouble and harassment - These words characterise the objective effect, on balance, of a continuation of the proceedings and a particular forum as the venue of proceedings rather than as describing the conduct of the plaintiff in selecting or persisting with that forum. 3. The mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay - Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised with great care or extreme caution. - Test of whether the court is an inappropriate forum is essentially a question of whether or not the court is a clearly inappropriate forum as opposed to whether there is a more appropriate forum.
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Concluding Proceedings before Trial Class 9: Concluding Proceedings before Trial (Chapter 10 omit 10.70; 10.110)
Most proceedings do not go to trial. Some are concluded by summary disposal procedures. Such procedures might be undertaken by the plaintiff, e.g. applying for and obtaining a default judgement because the defendant has not filed an appearance or a defence . The defendant might apply for summary dismissal because e.g. the plaintiff has failed to prosecute the proceeding or because the plaintiffs pleadings do not reveal a reasonable cause of action All such summary disposal procedures truncate or conclude the proceedings prior to trial.
Default Judgement - The plaintiff can apply for a default judgement if the defendant does not file an appearance or a defence within the required time. (Pt 16) - Default judgements provide an incentive for defendant to file an appearance or a defence within the prescribed period of time (28 days - r14.3) - In addition to the affidavit in support requirements of r16.6 (liquidated claim) and r16.7 (unliquidated claim), an affidavit of service of the originating process must accompany an application for a default judgement - r16.3
r16.2 Definition of "in default" (1) 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 14.3 (1) or within such further time as the court allows, 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 defendant having duly filed a defence, the court orders the defence to be struck out. (2) Despite subrule (1), a defendant is not in default if the defendant: (a) has made a payment towards a liquidated claim under rule 6.17, or (b) has filed an acknowledgment of claim under rule 20.34, or (c) has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant.
r16.3 Procedure where defendant in default (1) If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (1A) Unless the court otherwise orders, an application under this rule: (a) may be dealt with in the absence of the parties, and (b) need not be served on the defendant. (2) Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by: (a) an affidavit of service of the statement of claim ("the affidavit of service"), and (b) an affidavit in support of the application ("the affidavit in support"). (3) An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by a Local Court under rule 10.1 (2). (4) Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.
Setting aside a default judgement - r36.16(2)(a) and (b) provides court with power to set aside default judgements 112
Concluding Proceedings before Trial Upon an application to set aside a default judgement, the defendant must explain the delay in filing a defence and show that there is a defence on the merits.
r36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
Borowiak v Hobbs FACTS: 1. Motor vehicles owned respectively by the defendant and the plaintiff were involved in a motor vehicle accident. It took place on 13 May 2005. There is no dispute that the collision was caused by the negligence of the plaintiff. 2. The plaintiff made a claim on her insurer (NRMA). Subsequently her claim was met by the insurer. The defendants took steps to recover, the repair costs to their vehicle (commencing with a letter of demand to the insurer, dated 11 Aug 2005, which received no response). The claim was in excess of $28,000 3. The defendant commenced proceedings in the Local Court. Service of the process was effected prior to 5 Sep 2005. It was on that date that the process was brought to the attention of the insurer and it took over the conduct of the proceedings on behalf of the plaintiff. No defence was filed. The defendants obtained default judgement on 14 Nov 2005 and proceeded to levy execution thereon. 4. An application to set aside the default judgment was made on 30 Dec 2005. 26. Application to set aside the judgement was made pursuant to r36.16 of the UCPR. This is a rule which confers an unfettered discretionexercised having regard to the particular facts of the case before the court and so that the dictates of justice are best served. The applicant bears the onus of satisfying the court that the judgement should be set aside. - An application is unlikely to succeed unless there is a bona fide defence on the merits . Other relevant matters include the default and delay of the party seeking the indulgence of the court (including what is offered to explain that default and delay). In dealing with matters of default and delay, matters of prejudice can be relevant. - Here entitled to accord significant weight to the conduct of the insurer. - 37. There was no evidence that the insurer had any regard to the time limits imposed by the rules for the filing of a defence. Indeed, it would seem that they were either disregarded entirely or treated with distain or indifference (preferring to concentrate on internal procedures concerning priority observed in respect of litigation work). - 38. A court could not be expected to favourably view an application for indulgence in circs where the application takes such an approach. To do so, would bring about injustice. - 41. Where it has application (such as when the court exercises any power given to it by the Act or the Rules), the court must seek to give effect to the overriding purpose. [N.B. refer back to s56, 57, 58, especially s58(2)]
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Concluding Proceedings before Trial Summary Judgement - plaintiff r13.1 allows a plaintiff to seek summary judgement against a def who has filed a defence that does not reveal a valid defence to the plaintiffs claim or whose only defence is in regard to the amount of the damages claimed.
Cosmos E-C Commerce P/L v Bidwell - 37. The basis for the exercise of a courts jurisdiction to order summary judgement is not in doubt.
Summary Dismissal - defendant UCPR r13.1 provides an avenue for the plaintiff to apply for summary judgment. UCPR r13.4 provides the corresponding right to the defendant to seek an order that the proceedings be dismissed on the basis that they are o frivolous or vexatious; or o there is no reasonable cause of action disclosed; or o the proceedings are an abuse of process. The test applied for summary dismissal based on the plaintiffs pleading disclosing no reasonable cause of action is similar to that applying for summary judgement.
r13.4 Frivolous and vexatious proceedings (1) 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, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
In Dey v Victorian Railways Commissioners Dixon J said, at p91, that a case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in appointed manner by the court with or without a jury. In General Steel Industries Inc v Commissioner for Railways (NSW) and Ors [1964] HCA; Barwick CJ stated that the jurisdiction to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. A proceeding that is frivolous is one that is not worth serious attention. 114
Concluding Proceedings before Trial A vexatious proceeding is a proceeding that is undertaken for the purpose of harassment, one that cannot succeed or that is initiated to waste time or cause delay Abuse of process - proceedings brought for an ulterior purpose.
Want of Prosecution applies to plaintiff and defendant

r12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.
This rule provides discretion in the court to dismiss proceedings, strike out the defence or make such other order as the court thinks fit. Unsurprisingly the overriding purpose principles in s56-60 of the CPA will be relevant to the courts decision as it is for all other procedural decisions. - Common to summary disposal procedures is that o the plaintiff should not be prevented from litigating his or her action without very good reason, o the defendant has obligations to respond but should be allowed to defend if an arguable case exists, and o the ever present importance of the overriding purpose principles provide a framework for all decisions. CPA 91 pg374 Discontinuance
r12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. (2) A notice of discontinuance: (a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and (b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance. (3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent. (4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect. (5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.
The plaintiff can file a notice of discontinuance with the consent of the other active parties or by leave of the court: UCPR r12.1 115
Concluding Proceedings before Trial The court would normally allow a plaintiff to discontinue as long as no injustice is caused to the other parties and the terms of leave can be framed with any submission of this nature in mind. Of course it is very likely that there will be cost consequences.
Security for Costs

r42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant: (a) that a plaintiff is ordinarily resident outside New South Wales (interpreted as being outside of Australia - but unsure about Tasmania), or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. (4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given.
Under r42.21, The court has power to order a plaintiff to give security for the defendants cost of defending the plaintiffs claim and can order a stay of proceedings until the security is given. The establishment of one of the circs is not necessarily sufficient by itself to justify an order Such an order is discretionary and though such discretion is absolute and unfettered, it will not be made automatically. (Barton v Minister for Foreign Affairs) If there is non-compliance with the security for costs order the court may order that the plaintiffs proceedings be dismissed: UCPR r42.21 Security for costs is born out of a protective jurisdiction to ensure that the primary purpose for having costs orders themselves can be achieved. A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff. The jurisdiction therefore assists both the compensation purpose as well as the public interest objective. 116
Concluding Proceedings before Trial Application for security for costs should be made promptly. Why? o Avner v Dimopoulos: The reason why delay may lead the court in the interests of justice, to refuse an application for security for costs, which is otherwise right and proper, is that it is unfair to lull a plaintiff into a situation where it invests a large sum of money in preparation for a hearing and then to frustrate that expenditure by a last minute application. s56-s58 influence the decision for security for costs Though not absolute, there is a basic rule that a natural person who sues will not be ordered to give security costs, however poor Pearson v Naydler [1977] The exercise of the power to order security for costs is a balancing process of factors relevant to ensuring adequate and fair protection of a costs award to a def and avoiding injustice to an impecunious plaintiff by preventing his /her case from going to trial.
Idoport Pty Ltd v National Aus Bank In additional to this balancing process, other facts to be considered are: 1. That regard is to be had to the strength and bona fides of the applicants case 2. Whether the applicants impecuniosity was caused by the respondents conduct subject of the claim 3. Whether the respondents application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate 4. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security, and if yes a. Whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking 5. Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves (e.g. directly resisting proceedings already brought or seeking to halt self-help procedures) and thus forced to litigate. Plaintiffs: natural persons v corporations - 53. In relation to natural person plaintiffs, the mere fact that the plaintiff is impecunious does not provide a gateway into security for costs. - However with respect to corporation it has long been establishedthat if there is good reason to believe that the corporation may be unable to pay costs at the end of the day, this provides a gateway by which an application for security for costs may be made. - Why? o The mischief at which the provision is aimed is obvious. An individual who conducts his business affairs by medium of corporation without assets would otherwise be in a position to expose his opponent to a massive bill of costs without hazarding his own assets. The purpose of an order for security is to require him, if not to come out from behind the skirts of the company, at least to bring his own assets into play Burden of proof - Applicants for security for costs, have an evidentiary burden of leading evidence to establish a prima facie entitlement to such an order and to such an order in relation to a 117
Concluding Proceedings before Trial particular amount. Normally, in any court, the party who asserts must prove in order to succeed. 61. The evidence to be relied on must have some characteristic of cogency. Furthermore, speculation as to the insolvency or financial difficulties experienced by the plaintiff company is insufficient to ground the exercise of the discretion: Warren Mitchell P/L v Australian Maritime Officers Union 62. The approach followed in these reasons is that once the defendants have led evidence to establish the above described entitlement, an evidentiary onus falls upon the plaintiffs to satisfy the Court that taking into account all relevant facts, the Courts discretion ought be exercised, by either refusing to order security or by ordering security in some lesser amount than was sought by the defendants.
Morris v Hanley r42.21(1)(a) plaintiff is ordinarily resident outside NSW 9. The reason for invoking UCPR r42.21(1)(a) is that the defendants live in Casino, NSW. That is where the drama took place. However the plaintiff has now moved over the border to Qld and resides in Southport. - This is no reason for granting security for costs . - In Aus Building construction Employee v Commonwealth Trading Bank [1976] NSWLR, it was held that to confuse the rule as applying to people resident outside the state in another Australian State would be unconstitutional under s117 of the Australian Constitution and, accordingly, the rule only applies outside Australia or query to a person who lives in a Territory. In the instant case it could not apply to the plaintiff who lives in Qld. 10. Accordingly, the real thrust of the motion is under the Courts inherent power. 19. The situations that cause the Court particular concern are cases where there is a litigant in person who is alleged by the defendant to have an obsession against the defendant and who brings very expensive proceedings against the defendant with little intervention by lawyers. 21. It is quite clear that when one is considering the general matter of vexatious conduct warranting security for costs under the inherent power, one of the matters that the court takes into account is the question of the non-availability of funds on the part of the plaintiff. There are, of course, other matters that bear on this, such as whether the want of assets experienced by the plaintiff was caused by the default of the defendant, but that is not a matter which is at all relevant in the instant case. 22. It is also quite clear that in the proper case, an order for security for costs may be made against the person even if this person is legally aided 23. The leading cases show that the factors a Court must take into account when considering the general question as to whether the inherent power should be exercised to order security for costs include: (a) whether the plaintiffs claim is bona fide and not a sham; (b) whether the plaintiff has a reasonably good prospect of obtaining the orders he or she seeks; (c) whether an order for security would bring the proceedings to an end; (d) whether the plaintiff has a want of assets and how this was brought about; 118
Concluding Proceedings before Trial (e) whether there is anyone standing behind the plaintiff who might benefit from the action but who is unwilling to contribute to the risk involved in the action; and (f) the question of delay 24. This list is a non-exhaustive list of guidelines and one must not lose sight of the basic question as to whether the action is harassing and vexatious. 42. In my view, the various factors in favour of granting security for costs far outweigh the factors against making the order. The factors against making the order mainly are poverty and the taking away from the plaintiff the right to have an action tried which might succeed. They are weighty factors. However, to my mind they are not as weighty as the other factors which I have reviewed in favour of the defendants. HOWEVER ultimately, decision above (to allow security for costs) was appealed and defendants were refused security for costs - Application for security for costs refused because of no explanation as to why defendants had delayed making the application - Application for security of costs have to be made promptly and here, there was no explanation as to why it hadnt been made promptly Incentives to Settle Rules exist in UCPR (as Offers of Compromise) and Common Law (as Calderbank Letters) to encourage a reasoned approach to settlement by both plaintiffs and defendants The offer to settle must be genuine and if the offer is unreasonably rejected, cost consequences can follow s73 of CPA allows the court to determine in the particular proceedings (dont have to appeal) any dispute as to whether there has in fact been a compromise or settlement.
s73 Power of court to determine questions about compromises and settlements (1) In any proceedings, the court: (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.
Calderbank Letters (Common Law) - Calderbank letters are offers of compromise in letters marked without prejudice save as to costs. - They are a form of procedural alternative to the UCPR formal system of offers. o Without prejudice you cant use this letter against them o Without prejudice save as to costs - anything thats in the letter e.g. re liability cant be used at the trial, but anything to do with costs can be used against you at/after the trial - The costs consequences of unreasonably rejecting an offer contained in a Calderbank letter is in the general discretion of the court rather than the UCPR rules that governs offers of compromise. 119
Concluding Proceedings before Trial Calderbank letters lack the certainty and explicit consequences of the UCPR formal system of offers of compromise
Offers of Compromise (UCPR) Any party by notice in writing may make an offer to any other party to compromise on any claim in the proceedings. It need not relate to all claims in the proceedings and more than one offer in relation to the same claim can be made. The offer is taken to have been made without prejudice unless notice indicates otherwise. The offer must be exclusive of costs except where it states that it is a verdict for the defendant and the parties will bear their own costs A plaintiff may not make an offer unless the defendant has been given sufficient necessary documentation to enable the defendant to fully consider the offer. However, no order may be made in favour of the defendant on the ground that the plaintiff has not supplied sufficient docs unless the defendant informs the plaintiff in writing within 14 days of receiving the offer of that issue or the court orders otherwise. The offer can be accepted by serving a written notice of acceptance at any time during the period that the offer is open for acceptance. Unless otherwise stated on the offer, the contents of the offer must be forthcoming within 28 days of the acceptance of the offer. If the contents of the offer are not forthcoming within that time or if the court grants the party leave, the party who accepted the offer can withdraw the acceptance by serving written notice. Loser pays the winners costs
UCPR Part 42, Division 3: Offers of Compromise Provides the costs consequences for offers of compromise. - It is to be noted that the following cost consequences regarding offers of compromise affect the usual cost order costs follow the event or the loser pays the winners costs r42.13 Application This Division applies to proceedings in respect of which an offer of compromise (the "offer concerned") is made under rule 20.26 with respect to a plaintiff's claim (the "claim concerned").
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r42.13A Where offer accepted (1) This rule applies if the offer concerned: (a) is made by the plaintiff and accepted by the defendant, or (b) is made by the defendant and accepted by the plaintiff. (2) The plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, assessed on the ordinary basis up to the time when the offer was made, unless: (a) the offer states that it is a verdict for the defendant and the parties are to bear their own costs, or (b) the court orders otherwise.
r42.14 Where offer not accepted and judgment no less favourable to plaintiff (1) This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment (plaintiff wins) on the claim concerned no less favourable to the plaintiff than the terms of the offer. (equal or more favourable than offer) (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made. EXAMPLE: - P sues Def for $1 million - P makes offer of compromise to D on 12th Mar -> settle for $500,000 +costs - Refused by D and P gets judgement (i.e. wins) no less favourable (equal or more favourable) than offer (e.g. $550,000) Unless the court orders otherwise - P gets costs on ordinary basis from commencement of proceedings to 12th March - P gets costs on indemnity basis from 13th March till time of judgement r42.15 Where offer not accepted and judgment as or less favourable to plaintiff (1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment (plaintiff wins) on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer. (equal or less favourable than offer) (2) 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, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of 121 the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
EXAMPLE: - P sues D for $1mil - D makes offers of compromise to P on 12th Mar -> $500,000 + costs - P refuses and P gets judgement as favourable or less favourable as offer ($450,000) Unless the court orders otherwise: - P gets costs on ordinary basis up to the 12th Mar - D gets costs on indemnity basis from 13 Mar to time of judgement. r42.15A Where offer not accepted and judgment as or more favourable to defendant (1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment (defendant wins) on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer. (equal or more favourable than the offer) (2) Unless the court orders otherwise: (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made. EXAMPLE: - P sues D for $1mil - D makes P an Offer of Compromise on 12th March $500 + costs - P does not accept - D obtains judgement as favourable or more favourable to the D than the offer - Verdict for D ($100) - Unless the court orders otherwise - P pays Ds costs on ordinary basis from commencement of proceedings up to 12th March - P pays Ds costs on indemnity basis from 13th March to time of judgement r42.17 Miscellaneous (1) Before the court makes any order under rule 42.14 or 42.15, the party to whom the offer is made may request the party making the offer to satisfy the court that the party making the offer was at all material times willing and able to carry out the offer. (2) If the court is satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise, the party making the request must pay such of the costs of the party to whom the request is made as have been occasioned by the request. (3) If the court is not satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise: (a) rules 42.14 and 42.15 do not apply, and (b) the party to whom the request is made must pay the costs of the party making the request occasioned by the request. (4) Unless the court orders otherwise, any application for an order for costs under rule 42.14 or 42.15 must be made forthwith after the order122 or judgment giving rise to the entitlement to the order for costs is made or given.
Kain v Mobbs (No2) 5.The general approach adopted in this court is that where an offer involves no real element of compromise but merely invites capitulation by the appellant, it will not result in a variation of the usual costs order: 23. It is clear that an offer with no real elements of compromise in it, which is designed merely to trigger the costs sanctions, will not be treated as a genuine offer of compromise. Thus an offer by a plaintiff demanding the full amt claimed was held not to be an offer of compromise attracting costs penalties:Compromise connotes that a party gives something away. A plaintiff with a strong case or a plaintiff with a firm belief in the strength of its case, is perfectly entitled to discount its claim by only a dollar, but it does not in any real sense give anything away, and I do not think that it can claim to have placed itself in a more favourable position in relation to costs unless it does so plaintiff discounting by only a dollar isnt really a reasonable compromise Calderbank Letters much less certainty than Offers of Compromise The Hon Justice Margaret Beazley, Calderbank Offers (paper 2008) - The issue in Calderbank v Calderbank was whether a party could in a without prejudice communication in which an offer of settlement had been made, reserve that partys right to waive the confidential (that is the without prejudice nature of the offer) in order to rely upon it for the purposes of making an application for indemnity costs. - Cairns LJ held that, yes that was permissible. Basic rule as to costs - 9. The starting point in respect of the costs of proceedings is that costs follow the event (r42.1). That general rule is subject to the court determining that some other order should be made as to the whole or in any part of the costs: r42.1. Costs ordered to be paid are assessed on the ordinary basis (replacing the language of party / party costs) unless the court otherwise orders: r42.2. The making of a Calderbank offer is one circumstance in which the court might exercise its discretion under r42.1 (cf r. 42.14, r42.15) - A Calderbank offer does not have to be in any particular form or use any particular formula, unlike the offers of compromise. - 16. A Calderbank offer does not automatically result in the court making an order for indemnity costs: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323. - Rather, the question that the court has to determine in deciding whether to award indemnity costs is: o 37. whether the offerees failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, (costs follow the event) and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure 123
Concluding Proceedings before Trial (This is very different from offers of compromise Offers of Compromise are clear cut, if you get as much or better, you can look forward to an indemnity costs award. Under Calderbank letters, its still in the discretion of the court) The offeror (whose offer gets rejected) bears the persuasive burden of satisfying the court to exercise the costs directions in the offerors favour. (Offeror under UCPR Offer of Compromise doesnt bear any burden, its up to the offeree who refused to make an argument about why they shouldnt get the indemnity costs) 1. the Calderbank offer must be a genuine offer of compromise. 2. the offeree must be provided with an appropriate opportunity to consider and deal with the offer An award for indemnity costs will not be made unless it was unreasonable for the offeree not to accept the offer. Relevant considerations are: o Whether there was sufficient time to consider the offer; o Whether the offeree had adequate information to enable it to consider the offer; and o Whether any conditions are attached and if so, whether those conditions are reasonable o The prospects of success is also a relevant consideration to the costs determination
May an attempt to make an offer of compromise under the UCPR, which fails for noncompliance, be relied upon as a Calderbank offer? nothing conclusive - If it purports to be an offer made under the rules, but for some reason fails as a rules offer, there may be a real question as to whether it will be accepted as disclosing a general intention to make an offer of compromise. - The short message is that it is better to ensure that if you make a rules offer, the offer conforms in all respects. If you do not intend to make a rules offer, that should also be apparent on the face of the written offer. Calderbank offers v Rules offers - 60. When and why would you advise your client to make a Calderbank offer rather than an offer under the rules? To answer that why part, it is necessary to have regard to the provisions of the rules. In the first place, it should be recognised that offers that may be made under the rules have become increasingly flexible. They are however restrictions. - 62. Notwithstanding these restrictions, there is a singular advantage in making an offer under the rules as opposed to making a Calderbank offer. If a successful offer is made under the rules, the consequences which follow are virtually automatic. A successful offer made by a plaintiff (a successful offer being one that where the judgement on the claim is no less favourable to the plaintiff than the terms of the offer) results in an order that the plaintiff is to have costs assessed on an ordinary basis from the day after the date on which the offer was made up to and then thereafter on an indemnity basis: r42.14 - 63. The rule is subject to the court making a different order. A different order will only be made in exceptional circumstances. The effect of r42.14 is to place an onus on the offeree to establish exceptional circumstances 124
Concluding Proceedings before Trial 64. This is to be contrasted with the position under a Calderbank offer. A Calderbank offer constitutes no more than a discretionary consideration for the court in determining the appropriate costs order. It is often a powerful consideration. However, the fact that the offeror bears a persuasive burden of having the court exercise the costs discretion in the offerors favour is an important matter of which both legal representatives and clients ought to be aware. Having regard to the flexibility now encompassed in rules offers, there may not be many circumstances where a Calderbank offer will provide you with flexibility that you would not otherwise obtain under a rules offer. Making an offer inclusive of costs is the obvious circumstance. (Calderbank letters, rather than an offer of compromise, are only made if you really want to make an offer inclusive of costs) An offer made under the rules will generally have the same flexibility as is available under a Calderbank offer; it will have virtually automatic, favourable costs consequences for your client; your client will have no persuasive burden (or onus) in having the court make a favourable costs order; the burden is on the offeree to establish exceptional circumstances; and finally there is less likelihood of a second mini heading and therefore less likelihood of incurring the additional costs that inevitably are involved in a second hearing, regardless of whether that mini hearing is in court or by way of ora l submission.
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Gathering information and evidence Class 11: Gathering information and evidence (Ch11, omit 11.50-11.60, 11.95, 11.11011.130, 11.170, 11-19011.200, 11.260-11.280) We look at some different ways to gather info in civil cases using the UCPR This info may be used by the parties o To determine the strengths and weaknesses of their claim (or defence). o To promote settlement o To prepare for trial and o If admissible, as evidence in the trial There are various mechanisms in the UCPR which allow parties to gather info. The info can be obtained between the parties or from third parties These mechanisms can be used by agreement between the parties (i.e. by consent without the need to make a formal application to the court) or by obtaining a court order. To obtain a court order, the parties will usually be required to file a notice of motion seeking specific orders together with an affidavit which is evidence that supports the order/s being made We have discussed preliminary discovery and now will examine: o discovery; o subpoenas; o notice to produce and notice to admit facts; o interrogatories These mechanisms (except prelim discovery, which is discussed in chapter 5) are only available to the parties after pleadings have been filed and closed. (SoC has been filed and served, and def has filed and served defence, and times gone by so no more pleadings then discovery can take place)
Discovery and Notice to Produce - limited by RELEVANCE What is the test of relevance?
r21.1 Definitions (2) For the purposes of this Division, a document or matter is to be taken to be "relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence. r21.9 Definitions (2) For the purposes of this Division, a document or thing is to be taken to be "relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.
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Gathering information and evidence Uniform Evidence Act definition applied in UCPR r21.1(2) and r21.9(2) - Test in UCPR is: Can the information rationally affect the assessment of the probability of the existence of a fact in issue is there a minimal connection between the information you want and the fact in issue? UCPR/Evidence Act definition of relevance vs traditional Common Law approach - Traditional Common Law test: a document relevant to a question in issue is discoverable if it would lead to a train of inquiry which would either advance a partys own case or damage that of the adversary - UCPR is narrower than the traditional CL approach in that its not just lead to an inquiry but requires a connection - the UCPR relevance definition is narrower in that it no longer applies to documents which are indirectly relevant just because they may lead to a train of inquiry - There was a real problem with the traditional CL approach in that it allowed too much discovery enormous use of discovery procedures o But the problem exists in that the range of potentially discoverable documents can be virtually unlimited. The more conscientiously it is carried out, the more inefficient it is. Discovery of Documents enables parties to obtain documents from each other - The discovery process is where one party seeks documents within a class from the other party - The party providing discovery creates a list of the relevant documents and then inspects the documents - There can be an objection made to providing inspection on the basis that the documents are privileged - Discovery can be obtained o by notice to produce or o it can be ordered by the court - Discovery takes place once pleadings have closed. This is so that the parties are aware of the issues that are in dispute. The ambit of discovery is defined by court order by ref to a class of documents. Australia Law Reform Commission, Managing Justice, Report No 89 (1999) - In almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control - Problems with discovery result from party responses to discovery request. Parties may obstruct or subvert disclosure, refusing to provide or destroy or conceal relevant documentation which might have assisted the other side - In some circs, the party requesting discovery is fishing seeking disclosure of significant numbers of documents, perhaps with the intention of creating sufficient aggravation or embarrassment to encourage settlement, or hoping to uncover material which will remedy a weak case or lead to new causes of action. - In other instances, parties volunteer vast numbers of documents, not to be helpful and cooperative but as a mechanism to hide a single incriminating document which might now be lost in the detail 127
Gathering information and evidence The discovery process is used strategically by parties. Such tactics can result in significant costs, involve repeated interlocutory hearings and be very time consuming.
Notice to produce What is it? - Mechanisms by which one party can require another to produce a document referred to in a pleading by the other side, or clearly identified and relevant to a fact in issue - r21.10 (alternative to subpoena for parties) How does it work? - r21.11 if served with a notice must within a reasonable time (14 days from service) either produce for inspection documents within your possession, or state in whose possession the document is, or that you have no information about it. - Possession (lawful right to possession) includes power and control
r21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced. r21.11 Production under notice to produce (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (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, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person (another person) identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.
o Power right to inspect that document o Custody/control in ones physical possession regardless of right to possess
Limit placed on personal injury cases notice to produce r21.12 Personal injury claims In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise. 128
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r21.12 - A party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise - In personal injury cases, all you can get on a notice to produce (unless there are special reasons ordered by the court) are the documents referred to by your opponent in their documents witness statements, affidavits or pleadings Notice to produce: applies only between parties - Only applies to documents which are relevant (r21.9(2)) or referred to in other sides pleadings etc. - Notice to produce is more limited than obtaining an order for discovery because o Need to specify the documents you want o Only useful when you know what documents you want (similar to a subpoena)
Order for discovery have to go to court r21.2 Order for discovery (1) 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, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. (3) Subject to subrule (2), a class of documents may be specified: (a) by relevance to one or more facts in issue, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
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Gathering information and evidence Rules dont allow for general discovery - Now restricted to discovery specified by class or classes of documents, and must not be specified in more general terms than necessary (r21.2) - Can be specified by description, relevance or some other way (r21.2(3)) -
List of documents prepared must contain all the documents referred to in r21.3(2) Within 28 days after order for discovery
21.3 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 (other than excluded documents see definition in r21.1) referred to in the order. (2) The list of documents: (a) must be divided into two parts: (i) Part 1 relating to documents in the possession of party B, and (ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B , and (b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1): (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify.
r21.1 definition of Excluded documents o Documents which dont have to be disclosed include (c) any document that wholly came into existence after the commencement of the proceedings.
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Gathering information and evidence The process for discovery under the UCPR can be summarised as follows: (see page 411 for all the rules) 1. Party A files and serves a notice of motion (with supporting affidavit) seeking discovery pursuant to UCPR r21.1 2. The notice of motion is heard and the court may order discovery of a class of documents (UCPR r21.2) 3. Within 28 days of the order (or as to order specified). Party B prepared a list of documents (UCPR r21.3) which is divided into two parts (i.e. documents in the possession of Party B and documents which were in possession of Party B in the last 6 months). The list needs to describe the documents. The list also states whether privilege is claimed in respect of the documents and the circs that give rise to privilege being claimed. If the documents are not in the possession of Party B then Party B needs to indicate who he or she believes has possession of the documents 4. The list is accompanied by a supporting affidavit by Party B (UCPR r21.4(2)) and a solicitors certificate (UCPR r21.4(3)) The affidavit by Party B verified the list The solicitors certificate certifies that advice has been given about Party Bs obligations arising from an order for discovery 5. The documents are then made readily accessibly and capable of convenient inspection by Party A (UCPR r21.5) Within 21 days after service of the list of documents, party must allow inspection 6. There is a continuing obligation on Party B to make available subsequently discovered documents (UCPR r21.6) 7. Except with the courts leave (permission), no information from a document obtained as a result of discovery is to be disclosed, or used in other legal proceedings. The exception to this rule is if the document has been received into evidence in open court (UCPR r21.7) 8. The court will not order discovery in personal injury cases unless the court, for special reasons, orders otherwise (r21.8).
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Gathering information and evidence Duty to inquire (not in the book) Importance of full and frank disclosure Certification by parties and the lawyers: r21.4 a mechanism that tries to encourage full and frank disclosure r21.4(2) you must make all reasonable inquiries
r21.4 Affidavit and certificate supporting list of documents (1) The list of documents must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitor's certificate of advice. See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1) (a) must state that the deponent: (a) has made reasonable inquiries as to the documents referred to in the order, and (b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and (c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and (d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and (e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in, and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege. (3) The solicitor's certificate of advice referred to in subrule (1) (b) must state that the solicitor: (a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and (b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).
Re McGorm: Ex parte Co-operative Building Society of SA HELD: - Insufficient for a bankrupt to say that he could not list his documents because his trustee had them all. He had to make reasonable inquiries - Must make proper inquiries to try and identify documents not in your possession. - It extends to making inquiries to people who now have the documents Reinforcing compliance with discovery rules - as well as perjury, contempt we have s61CPA which contain powers of court where a party doesnt comply with a discovery or notice to produce - Court may dismiss or limit any claim; strike out or amend any pleading; strike out or disallow evidence which that party has adduced or seeks to adduce; require that party to pay the whole or part of the costs of another party.
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Gathering information and evidence Personal Injuries order for discovery 21.8 Personal injury claims In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.
Notice to produce only applies to documents referred to in the pleadings or witness statement or affidavits not other documents, unless special reasons - r21.12 Can get order for discovery, but only if there are special reasons - r21.8
Priest v NSW [2006] NSWSC 12 State of NSW (defendant) argues that you cant order discovery because this procedure would be seriously and unfairly burdensome and would produce serious and unjustified trouble and harassment. Court eventually said get over, were ordering limited discovery 136. The defendant resisted the making of an order for discovery and made submissions contending that some of the categories of documents were not relevant or that compliance with an order would be oppressive. HELD: If the court decides to make an order for discovery, a class of documents shall not be specified in more general terms than the Court considers to be justified in the circumstances. 137. With respect to the issue of oppression, the term oppressive is often used to signify considerations which justify the exercise of the power to control procedures to prevent injustice where the procedures are seriously and unfairly burdensome, prejudicial or damaging and productive of serious and unjustified trouble and harassment. SUMMARY Notice to produce - dont need to go to court - inter-parties, easy process - requirements: documents contained in the opponents documents (pleading, witness statement, affidavit), specify exactly what you want Order for discovery - involves the court - describe as a class of documents - relevance to particular issue - if order granted, other side has to create list of documents + certain beliefs Subpoena from 3rd parties - must specify document (but notice to produce still broader) - issued in court Subpoena to Produce - LOOK AT THE RULES (Part 33) - below 133
Gathering information and evidence A subpoena to produce documents can be issued on third parties or parties to the litigation A subpoena contains a schedule which lists documents which the issuing party seeks to have produced to the court. Once a subpoena is filed in court and served it becomes an order of the court. The person or entity that is served with a subpoena to produce will need to gather the documents that are caught by the subpoena and then produce the documents to the court. Failure to comply with the subpoena is contempt of court However, a subpoena to produce may not be complied with if the person or entity who has been subpoenaed seeks to have the subpoena set aside as an abuse of process on the ground that it o lacks a legitimate forensic purpose or o is oppressive or o has an improper purpose A subpoenaed person or entity who claims privilege over documents may resist access being granted to the party issuing the subpoena on the grounds of privilege
Setting aside a subpoena Steps in the procedure of having a 3rd party bring documents to court (subpoena to produce) and their use thereafter: 1. Obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. (You still need to bring the documents to court, even though you want to object to the subpoena). This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena, to have the subpoena set aside. 2. (If not set aside) The decision of the judge concerning the preliminary use of the documents, (who can get access to it) which includes whether or not permission should be given to a party or parties to inspect the documents. 3. The admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise (just talk about relevance other things not examined) It is the third step which alone provides material upon which ultimate decision in the case rests. In these 3 steps, the stranger and the parties have different rights, and the function of the judge differs.
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Gathering information and evidence Objections to the subpoena: the grounds to set aside a subpoena Waind v Hill [1978] 1. Not permitted to be used for the purpose of discovery improper purpose It was improperly issued and an abuse of the power where the subpoena is used for the purpose of discovery. The essential feature of discovery is that the person to whom the subpoena is addressed will have to make a judgement as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgement as to what is relevant to the issue joined in a proceeding, to which he is not a party they dont know what issues are dispute so how can they work out what is important? Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party, to obtain discovery. 2. A subpoena can be set aside on the grounds that it is an abuse of process because: a. It is oppressive. A subpoena may be oppressive if it has insufficient particularisation of the documents called for. This creates oppression because the recipient is required to judge what documents are caught by the subpoena. A subpoena could also be oppressive where compliance is too onerous. This is demonstrated where an excessive burden is placed on the producing party b. It has an improper purpose. For example, the subpoena may seeks documents not for the purpose of the litigation but for some spurious purpose such as a private purpose or for use in other proceedings c. It does not have a legitimate forensic purpose. A subpoena cannot be an attempt to discover documents, that is, it cannot be merely a fishing expedition. The test for determining whether a party is required to produce documents pursuant to a subpoena Before access is granted, the party issuing the subpoena must (i) Identify a legitimate forensic purpose for which access is sought; and (ii) Establish that it is on the cards that the documents will materially assist his or her case It is necessary for the party who issued the subpoena (and who is calling on the documents to be produced) to identify expressly and precisely the legitimate forensic purpose for which access to documents is ought. Mere relevance is not enough there will be a need to identify the issue(s) in dispute in the trial, what the subpoenaing partys case will be on that issue or those issues, how the subpoenaed documents will assist the subpoenaing party in his case and the concrete grounds for believing that the documents will in fact so assist The onus is on the party that issued the subpoena to identify the legitimate forensic purpose
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Gathering information and evidence Notice to admit facts (SEE RULES below) Parties can obtain voluntary admissions of fact (for the purposes of the proceedings only) by serving a notice pursuant to r17.2 Parties can also serve notices to admit facts (r17.3) and/or notices to admit the authenticity of documents (r17.4) Admissions may be withdrawn with leave of the court. If notices under r17.3 and r17.4 are not disputed within 14 days, they are taken to have been admitted.
r17.2 Voluntary admissions of fact admitted voluntarily (1) The admitting party may, by a notice served on the requesting party, admit, in favour of the requesting party only and for the purposes of the proceedings only, the facts specified in the notice. (2) The admitting party may, with the leave of the court, withdraw any such admission.
r17.3 Notice to admit facts asked to admit (1) The requesting party may, by a notice served on the admitting party ("the requesting party's notice"), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice. (2) If, as to any fact specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission. r17.4 Notice to admit (authenticity of) documents (1) The requesting party may, by a notice served on the admitting party ("the requesting party's notice"), require the admitting party to admit the authenticity of the documents specified in the notice. (2) If, as to any document specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing the authenticity of that document, the authenticity of that document is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission.
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Essentially questions one party can ask the other. Useful if the person knows what they want to know and how to construct the question These are very restricted now and need to obtain permission from the court If you are allowed to answer, it is by order and the other side needs to swear by it No order granted in personal injury actions unless court satisfied that "special reason" exists
Discovery by interrogatories is a procedure where a party may be ordered to answer specified questions. The questions are usually answered on oath and can be tendered as evidence in the trial. They can be ordered at any stage of proceedings. (See p457 for an example of the form of interrogatories) Interrogatories must relate to issues in the pleadings. They will be necessary where they relate to matters where proof by other evidence may be difficult or expensive (Lang v Australian Coastal Shipping Commission) In summary, the UCPR provide that: 1. A party can seek an order from the court to administer interrogatories. This can be made at any stage of proceedings. A draft of the questions is to be filed with the application seeking the order. An order will only be made if it is necessary. 2. The answering party may be ordered to answer specified questions 3. The answers are usually required to be verified by affidavit 4. A party may object to answering on the basis that it does not relate to any matter in issue between the parties, the question is vexatious or oppressive and/or the answer would disclose privileged information 5. If a party provides insufficient answers, the court may make orders for further answer and verification by affidavit or for the interrogated party to attend for oral examination. The court also has power to give or make such judgement or other order as it thinks fit including stay, dismissal, striking out of defence 6. The answers can be tendered as evidence in the trial 7. No order will be granted in personal injury actions unless the court satisfied that special reasons exist. 8. A party can object to answering interrogatories (r22.2) Part 33 - SUBPOEANA RULES
r33.1 Definitions (1) In this Part:"addressee" means the person who is the subject of the order expressed in a subpoena."conduct money" means a sum of money or its equivalent, such as prepaid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending."issuing officer" means an officer of the court who is empowered to issue a subpoena on behalf of the court."issuing party" means the party at whose request a subpoena is issued."registrar", in relation to proceedings in respect of which a subpoena is sought or issued, means: (a) in relation to the Supreme Court, the principal registrar, and (b) in relation to the District Court: (i) the principal registrar, or 137
Gathering information and evidence (ii) the registrar of the District Court for the proclaimed place (within the meaning of the District Court Act 1973) where the subpoena was issued, or where the subpoena is returnable, whichever is applicable, and (c) in relation to a Local Court, the registrar of the Local Court where the subpoena was issued. "subpoena" means an order in writing requiring the addressee: (a) to attend to give evidence, or (b) to produce the subpoena or a copy of it and a document or thing, or (c) to do both of those things. (2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a "subpoena to attend to give evidence". (3) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a "subpoena to produce". r33.2 Issuing of subpoena (1) The court may, in any proceeding, by subpoena order the addressee: (a) to attend to give evidence as directed by the subpoena, or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or (c) to do both of those things. (2) An issuing officer must not issue a subpoena: (a) if the court has made an order, or there is a rule of the court, having the effect of requiring that the proposed subpoena: (i) not be issued, or (ii) not be issued without the leave of the court and that leave has not been given, or (b) requiring the production of a document or thing in the custody of the court or another court. (3) The issuing officer must seal with the seal of the court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. (4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3). r33.3 Form of subpoena (1) A subpoena must be in the approved form. (2) A subpoena must not be addressed to more than one person. (3) Unless the court orders otherwise, a subpoena must identify the addressee by name or by description of office or position. (4) A subpoena to produce must: (a) identify the document or thing to be produced, and (b) specify the date, time and place for production. (5) A subpoena to attend to give evidence must specify the date, time and place for attendance. (6) The date specified in a subpoena must be the date of trial or any other date as permitted by the court. (7) The place specified for production may be the court or the address of any person authorised to take evidence in the proceeding as permitted by the court. 138
Gathering information and evidence (8) The last date for service of a subpoena: (a) is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the court, and (b) must be specified in the subpoena. (9) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. r33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (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. r33.5 Service (1) A subpoena must be served personally on the addressee. (2) The issuing party must serve a copy of a subpoena to produce on each other active party as soon as practicable after the subpoena has been served on the addressee. r33.6 Compliance with subpoena (1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. (2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena. (3) Despite rule 33.5 (1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (4) The addressee must comply with a subpoena to produce: (a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court, or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production. (5) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence. r33.7 Production otherwise than on attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 139
Gathering information and evidence 33.6 (4) (b). (2) The registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee. (3) If the addressee produces more than one document or thing, the addressee must, if requested by the registrar, provide a list of the documents or things produced. (4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced. (5) The addressee may at the time of production inform the registrar in writing that any document or copy of a document produced need not be returned and may be destroyed. r33.8 Removal, return, inspection, copying and disposal of documents and things The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena. r33.9 Inspection of, and dealing with, documents and things produced otherwise than on attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b). (2) On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced. (3) Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave. (4) Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the registrar: (a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and (b) must refer the objection to the court for hearing and determination. (8) The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly. (9) The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party. See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party. (10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that: (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and 140
Gathering information and evidence (b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar.
See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor.
(11) The registrar may, in the registrar's discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application. r33.10 Disposal of documents and things produced (1) Unless the court orders otherwise, the registrar may, in the registrar's discretion, return to the addressee any document or thing produced in response to a subpoena. (2) Unless the court orders otherwise, the registrar must not return any document or thing under subrule (1) unless the registrar has given to the issuing party at least 14 days' notice of the intention to do so and that period has expired. r33.11 Costs and expenses of compliance (1) The court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court's usual procedure in relation to costs. (3) An amount fixed under this rule is separate from and in addition to: (a) any conduct money paid to the addressee, and (b) any witness expenses payable to the addressee. r33.12 Failure to comply with subpoena--contempt of court (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite rule 33.5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (3) Subrules (1) and (2) are without prejudice to any power of the court under any rules of the court (including any rules of the court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. r33.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the court, the registrar must produce the document or thing: (a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or (b) as the court directs. (3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered: (a) request the other court to send the document or thing to the registrar, and 141
Gathering information and evidence (b) after receiving it, produce the document or thing: (i) in court or to any person authorised to take evidence in the proceeding as required by the party, or (ii) as the court directs.
Part 17 - NOTICE TO ADMIT r17.1 Definitions "the admitting party" means a party who is admitting, or being asked to admit, any matter. "the requesting party" means a party in whose favour another party is admitting, or being asked to admit, any matter. r17.2 Voluntary admissions of fact (1) The admitting party may, by a notice served on the requesting party, admit, in favour of the requesting party only and for the purposes of the proceedings only, the facts specified in the notice. (2) The admitting party may, with the leave of the court, withdraw any such admission. r17.3 Notice to admit facts (1) The requesting party may, by a notice served on the admitting party ( "the requesting party's notice"), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice. (2) If, as to any fact specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission. r17.4 Notice to admit documents (1) The requesting party may, by a notice served on the admitting party ("the requesting party's notice"), require the admitting party to admit the authenticity of the documents specified in the notice. (2) If, as to any document specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing the authenticity of that document, the authenticity of that document is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only. (3) The admitting party may, with the leave of the court, withdraw any such admission. r17.5 Admission of documents discovered (1) In this rule:"admitting party" means the party on whom a list of documents is served under rule 21.3."requesting party" means the party by whom a list of documents is 142
Gathering information and evidence served under rule 21.3. (2) If a requesting party allows inspection of any documents referred to in a list of documents under rule 21.5, the admitting party is taken to have made the following admissions in favour of the requesting party, unless the court orders otherwise: (a) in respect of each document described in the list as an original document, that the document is an original document and was printed, written, signed or executed as it purports to have been, (b) in respect of each document described in the list as a copy of an original document, that the document is a true copy. (3) Subrule (2) does not apply to a document referred to in the list of documents if the admitting party: (a) has, by his or her pleading, denied the authenticity of the document, or (b) has served on the requesting party, within 14 days after the time limited under rule 21.5 for inspection of a document, a notice to the effect that the admitting party disputes the authenticity of the document. (4) The admitting party and the requesting party are taken to be in the same position as they would have been in had the admitting party, on the date of service of the list of documents, served on the requesting party a notice requiring production at the trial of such of the documents specified in the list as are in the possession of the requesting party. r17.6 Restricted effect of admission 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, and (b) is taken to have been made for the purposes of those proceedings only. r17.7 Judgment on admissions (1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. (2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined. Part 22 - INTERROGATORIES r22.1 Interrogatories (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of the death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that 143
Gathering information and evidence justify the making of the order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. (5) An order to answer interrogatories: (a) may require the answers to be given within a specified time, and (b) may require the answers, or any of them, to be verified by affidavit, and (c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them. r22.2 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, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information. r22.3 Answers to interrogatories (1) A party who has been ordered to answer interrogatories must do so within the time required by the order by serving a statement of answers on all other active parties. (2) Such a statement: (a) must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and (b) must answer the substance of each interrogatory without evasion, and (c) to the extent to which, and in the manner in which, the order so requires, must be verified by affidavit.
See rule 22.6 as to the admission in evidence of answers to interrogatories.
r22.4 Insufficient answer (1) If a party who has been ordered to answer interrogatories under rule 22.1 fails to answer an interrogatory sufficiently within the time specified in the order or, if no such time is specified, within 28 days after being served with the order, the court: (a) may order the party to make a further answer, and to verify that further answer by affidavit, or (b) may order the party or, as the case requires, any person of the kind referred to in rule 35.3 (1), to attend to be orally examined. (2) This rule does not limit the power of the court under rule 22.5. r22.5 Default (1) If a party who has been ordered to answer interrogatories under rule 22.1 or 22.4 fails to answer an interrogatory sufficiently, the court may give or make such judgment or such order as it thinks fit, including: (a) if the party in default is a plaintiff, 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, or 144
Gathering information and evidence (b) if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party's defence be struck out. (2) If a party has a solicitor, an order under rule 22.1 or 22.4 need not, for the purposes of enforcement of the order by committal or sequestration, be served personally. (3) If an order under rule 22.1 or 22.4 is not served personally on a party having a solicitor, the order may not be enforced by committal of any person, or by sequestration of any person's property, if that person shows that he or she did not have notice of the order within sufficient time to comply with the order. r22.6 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 tendering the whole of the answer. (2) If the whole or part of an answer to an interrogatory is tendered as evidence, the court: (a) may look at the whole of the answer, and (b) if it appears to the court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, may reject the tender unless that other answer or part is also tendered.
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Class 11: Revision - Exam technique & practice exam question Exam technique: - 10 minutes reading time: o be peaceful and have good thoughts (praise yourself) o read the exam paper (1 page) read more than once - first read: objective read silly story, no analysis, what its generally about - second: solidify the facts dont make up facts! - Third: pretend youre the person who drafted the exam why is that fact there? What is she trying to point me to? What is she trying to trick me into being pointed to? identify the issues that you think the question raises Other Notes: - Dont assume facts that dont exist - (listen again at 44) Methodology: Pick the issues raised, go to rules, short intro chat about what the rule is for and why its useful here, go through rule in terms of what the requirements are and apply to the facts and how the requirements are fulfilled in that factual situation, talk about what you have to do to apply for a particular order and how the facts are going to fulfil what you have to do in relation to applying for an order, and drafting the specific order that you seek in terms of the facts. - Write neatly! Practice Exam Question:
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Civil Procedure Exam Notes

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Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

Exceptions to Open Justice in the CPA Non-disclosure

Class 1: Introduction to Civil Procedure

CIVIL PROCEDURE ACT 2005 - SECT 71

(c) if the business concerns the guardianship, custody or maintenance of a minor,

Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

Class 1: Introduction to Civil Procedure

The NSW Court hierarchy

Class 1: Introduction to Civil Procedure

Class 2: Case Management in NSW

Case management in NSW Justice delayed is justice denied. Why?

(Chapter 2: 2.10 2.120)

Class 2: Case Management in NSW

Class 2: Case Management and Adjournments -

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Part 6 Case management and interlocutory matters

Class 2: Case Management in NSW

Class 2: Case Management in NSW

How has Part 6 of the CPA affected Civil Procedure?

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Class 2: Case Management in NSW

parties fails to comply with directions of the court

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Class 2: Case Management in NSW

Directions hearing by telephone conference call

Electronic Case Management

Class 2: Case Management in NSW

Parties and Costs

98 Courts powers as to costs

costs under s98(1)(c) of the Act

Equation used for payment of costs

Class 4: Alternatives to Litigation

determination. Further ADR reforms

UCPR 20.13 10.24

Before a Civil Action Commences

Potential issues even before commencement of proceedings

Before a Civil Action Commences

2. Cross-vesting legislation which court?

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Before a Civil Action Commences

Discovery of Documents from other persons

Before a Civil Action Commences

Part 25 Interim preservation (Freezing Orders)

Before a Civil Action Commences

Criteria for Mareva Order

Before a Civil Action Commences