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 –
doesn’t 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 systems…there 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 they’re 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 won’t 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, it’s not practical
since judge doesn’t 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
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Adversarial Inquisitorial
- Party controlled dispute (that is the - Party control of the dispute and the
parties define the dispute and role played by lawyers is much less
present evidence and argument) conspicuous (e.g. in Parisian courts, it’s hard to see
who the lawyers were, very little engagement with the
lawyers)
- There is a reliance on orality. - The emphasis is on documentary
Testimony is adduced from proof and not on cross-examination -
witnesses and is subject to cross- court official goes and interviews
examination. In addition, advocates people and writes everything into a
use oral argument in the dossier which becomes the substance
presentation of their case of the trial – only minor contribution
- Use of precedent, procedural rules, from lawyers
laws of evidence - The main sources of law are codes
- The judge is impartial and acts as an with commentary by legal scholars
umpire. - There are minimal rules of courtroom
- The judge is reactive practice
- The judge’s role is both proactive and
inquisitive
- The trial is the climactic beginning - There is no rigid separation between
and end of the litigation process trial and pre-trial phases
(and is distinct from the pre-trial - No use of transcript, the trial is
stages of proceedings); essentially a continual process which
- Use of trial transcript for the appeal 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
system’s 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 Woolf’s 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 don’t 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 side’s expert witnesses testify separately and don’t
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
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o Encouraging cooperation amongst lawyers – not much cooperation exists in an

adversarial system – CPA contain obligations from lawyers to assist court by co-
operating
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 “government’s 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 – it’s 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 it’s 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
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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 public…is 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 It’s my tax money! It’s 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: “It’s well established that in the ordinary course, the courts will conduct
their proceedings in public. It’s fundamental that the courts should be open to all, in
order that all who are minded to do so may see how justice is administered…that
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
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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) - couldn’t 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 Judge’s 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.
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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:
- There’s 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
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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 is…whether 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 court’s
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
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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 doesn’t 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 side’s 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 MacDonald’s (very, very rich), MacDonald’s might ask
court to order plaintiff to pay $0.5mil to ensure that in the event that they lose,
MacDonald’s can claim money.
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o Paper-based versus oral processes and hearings – no cross-examination for paper-

based
o Applications for an adjournment – one party is ready to go, but other party not
ready – disadvantage first who’s 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 –
don’t let legal costs a lot more than what’s 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
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
you’re required to do something but you don’t do it.) is given a return date before a judge
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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 case-
managed 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 (Chapter 2: 2.10 – 2.120)
Justice delayed is justice denied. Why?

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 don’t 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 don’t 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 we’ve 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 court’s 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
Class 2: Case Management and Adjournments (Balance of Chapter 2)
- 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 doesn’t happen?
o Be more judicious with regard to number of times required to appear before
court – some cases don’t 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 don’t 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.
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- 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 holding’s
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 Part581, Court
rule 3)to follow dictates of justice
(1) In deciding:
(1) The overriding purpose of this
(a) whether Act and
to make anyoforder
rulesorofdirection
court, in for
theirtheapplication
management to civil
of proceedings,
is to facilitate the just, quick and cheap
proceedings, including: resolution of the real issues in the proceedings.
(2) The court must seek to give (i) anyeffect
orderto for
the the
overriding
amendment purpose
of a when it exercises
document, and any power given to
it by this Act or by rules of (ii)
court
anyand when
order it interprets
granting any provision
an adjournment of this
or stay Act or of anyand
of proceedings, such rule.
(3) A party to civil proceedings is under a duty to assist the court
(iii) any other order of a procedural nature, and to further the overriding purpose
and, to that effect, to participate
(iv) any in the processes
direction underof Division
the court 2, and to comply with directions and
and
orders of the court. (b) the terms in which any such order or direction is to be made,
(4) A solicitortheorcourt
barrister
mustmust
seek not,
to actbyinhis or her conduct,
accordance with thecause his orofher
dictates client to be put in breach
justice.
of the duty identified
(2) For theinpurpose
subsection (3).
of determining what are the dictates of justice in a particular
(5) The courtcase,
maythe
take into account any failure to comply with subsection (3) or (4) in exercising a
court:
discretion with respect to costs.
(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
57 Objects of case management considers them relevant:
(1) For the purpose of furthering
(i) thethe overriding
degree purpose
of difficulty or referred
complexityto intosection 56 (1),
which the proceedings
issues in the in
any court are to be managedproceedings
having regard to the
give rise, following objects:
(a) the just determination
(ii) theofdegree
the proceedings,
of expedition with which the respective parties have
(b) the efficient disposal of the business
approached the proceedings, of the court,
including the degree to which they
(c) the efficient use have
of available judicial
been timely and administrative
in their resources,
interlocutory activities,
(d) the timely disposal(iii)ofthethedegree
proceedings,
to whichand anyalllack
other
of proceedings
expedition ininapproaching
the court, atthea cost
affordable by the respective parties.
proceedings has arisen from circumstances beyond the control of the
(2) This Act and any rules of court areparties,
respective to be so construed and applied, and the practice and procedure
of the courts are to be so regulated, as bestto
(iv) the degree towhich
ensurethetherespective
attainmentparties
of the have
objects referred
fulfilled to in
their
subsection (1). 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 the60fair and just determination
Proportionality of costs of the issues in dispute between the parties and
the preparation of
In the
anycase for trial. the practice and procedure of the court should be implemented with the
proceedings,
object of resolving the issues between the parties in such a way that the cost to the parties
is proportionate to the importance14 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 court’s 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
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
15
- 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
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)
16
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,
17
(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, cross-
examination 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,
18
(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
19
- 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 party’s 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, it’s 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 P’s 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.
20
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 didn’t 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
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.
21
(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 it’s 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
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
22
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. Doesn’t 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
 (a) Interlocutory applications except where a witness is giving oral
testimony
 (d) If the proceedings are not before a jury and are formal and non-
contentious
 (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
23
- 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? (can’t 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.
24
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 - s66…is 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
Adjournments
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.
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 there’s 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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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 – it’s 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: It’s 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 winner’s costs, capped at 10% of the winner’s 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 – it’s 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
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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 defendant’s 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?
- - The CPA pursuant 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.
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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 ss56-
60 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 else’s 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)
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.
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- 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 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)
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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.
Section 98 CPA - provides the court with unlimited power to determine costs in a proceeding.
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 .
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 aren’t 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 client’s 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
unless a principal of the practice, or a legal practitioner associate responsible for the provision of
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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.
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 can’t 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
presumption for the purposes of this Division that legal services provided on the claim or the
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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 there’s 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
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Costs
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 won’t
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! It’s 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 can’t 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 practitioner’s
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 LP’s 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 court’s 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.
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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 client’s release, the
lawyer may well be unable to give the court full information.
Whyked Ptd Ltd v Yahoo!7 Pty Ltd

FACTS: Yahoo’s 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 practitioner’s 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
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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 practitioner’s instructions. Thus, for the jurisdiction to arise, the
conduct must involve some serious dereliction of duty or gross negligence.
- 184. I don’t 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 solicitor’s 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 should’ve 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 aren’t 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 shouldn’t be facing a very large costs order if I have to
adjourn the case…‘it’s disgraceful that they’re 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:
39
Costs
- 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 Honour’s 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 winner’s 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 party’s 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
40
Costs
- The usual order is that costs follow the event (although there is no absolute rule to that
effect – it’s 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 doesn’t 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
41
Costs
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 court’s
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 wrongdoer’s 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. Neighbour’s child playing in my backyard and wall falls down and kills her. (Gets us in
to Supreme Court).
I decide to sue the engineer and the builder. On trial – turns out engineer’s 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 winner’s 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:
42
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 builder’s costs)
 D2  P + D1 (engineer pays the plaintiff’s costs and reimburses the P for the
builder’s 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, it’s 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 defendant’s costs directly and the plaintiff 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.
43
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. Advisory –considers and appraises the dispute and provides advice
iii. Determinative – evaluates the dispute and makes a determination
iv. 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
44
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. UCPR 20.13 – 10.24
Further ADR reforms

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.
45
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 don’t give that evidence – you don’t 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?
 What’s acknowledged it that it’s the plaintiff’s action – plaintiff’s 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?
46
- Importance is given to plaintiff’s choice of forum – traditional approach is to give effect to
plaintiff’s 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 plaintiff’s choice of court a clearly inappropriate forum (Voth v Manildra Flour
Mills) – determines whether or not the plaintiff’s 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
47
 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 judge’s 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 plaintiff’s 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 plaintiff’s matter should be transferred to SA – because it’s
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 plaintiff’s choice of forum whilst
Voth gives preference to plaintiff’s 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 plaintiff’s choice is a ”clearly inappropriate”
forum. Gives emphasis on plaintiff’s 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: Plaintiff’s choice of forum may be for good or minor reasons (15). The plaintiff’s
reasons for his/her choice may be balanced by defendant’s disadvantage. In such a case,
justice may not indicate a preference for the interests of either party. It’s often clear but
sometimes evenly matched. (19)
- There were 2 reasons given by TJ when he refused the cross-vesting transfer:
48
 1. “Plaintiff’s 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 TJ’s first reason (about not lightly over-ridden stuff)
 HC held that it was misconceived – don’t start with any presumption as to where
the interests of justice might come down. (26)
- In response to TJ’s second reason (Plaintiff’s procedural advantages)
 It isn’t 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 defendant’s 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.
49
r5.2 Discovery to ascertain prospective defendant’s 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 person’s possession and that relate to the identity or whereabouts of the
person concerned.
(3) A court that makes an order for examination under subrule (2) (a) may also make either or both of
the following orders:
(a) an order that the other person must produce to the court on the examination any document or
thing that is in the other person’s possession and that relates to the identity or whereabouts of the
person concerned,
(b) an order that the examination be held before a registrar.
(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.
50
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 doesn’t 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 didn’t pay their fee. People who own carpark has CCTV
footage of them but doesn’t 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 rule’s predecessor in the Supreme Court was amended in 1974 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 rule’s “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 they’re 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 that’s 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
51
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. RTA’s 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.
52
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.
(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.)
53
Panasonic Australia P/L v Ngage P/L
FACTS:
Breach of confidentiality agreement
Plaintiff wants to find out whether there’s 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 there’s a reasonable basis for the action – merely
asserting that you have an action is insufficient, you need to map out the circumstances.
27. Although there’s 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 court’s 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 we’re 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, I’ll make the order.
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
54
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 plaintiff’s 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.
55
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.
(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 shouldn’t 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 didn’t 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)
56
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 have…to 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 action…it 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 execution…it should not purport to create security over them in favour of the
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
57
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 LED’s 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 E’s business name
 LED sought Mareva orders and an accounting of profits against C and UM as well as E
even though they weren’t 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)
o go to NSWSC Practices  practice notes Gencurrent
o if someone refuses the order, they will be held in contempt by the court – not smart
58
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 respondent’s absence.
- The purpose of a search order is to preserve evidence which is required to prove the
applicant’s claim and which is in danger of being destroyed. The order permits the
applicant’s legal representatives and an independent supervising solicitor to enter the
respondent’s premises to enter, search, copy documents and remove property from the
respondent’s 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 Def’s 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 respondent’s control on or about the premises or that are
otherwise identified in Schedule A.
(f) ‘search party’ means the persons identified or described as constituting the search party in Schedule A
to this order.
59
(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
60
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:
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.
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
61
(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.
62
Port of Melbourne Authority v Anshun Pty Ltd

- Can’t litigate again in a 2nd action if it was reasonable that the issues in the 2 nd action
should’ve 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 court’s 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 Anshun’s 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 Magistrate’s Court for
breach of contract. Magistrate dismissed claim on basis that it should have been joined in
the 1st action.
- Employee appealed to DC successfully and employer then appealed to CoA. CoA dismisses
employer’s appeal and overturned the magistrate’s decision to dismiss the claim.
63
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 should’ve
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
subject matters of the 1st action that it was unreasonable for P not to rely on them in 1st
action
- P was disappointed with the outcome of 1st action so sued accountant over effectively the
same misrepresentation in hope of a different outcome
64
- 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 Redowood’s 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
Mongoose’s 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.
3. The respondent is not alleging any duty based on the Rights Offer Doc , but rather a duty
based on R’s own dealings with ASX
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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.
(If can’t 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.
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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.
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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 with
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
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 plaintiff’s 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 wasn’t really the real issue so it was only obiter dicta – just aspiration).
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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 didn’t 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 court’s 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
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
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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 liquidator’s 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 plaintiff’s 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 of 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 authorise 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.”
26. Here, the liquidator’s right to relief against the defendant in respect of a partial 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
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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, plaintiff’s 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
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 plaintiff’s 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.
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- 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 Court’s task is to identify disadvantages of 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 court’s 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 (didn’t 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:
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 plaintiff’s claim in proceedings before a court.
In the context of such proceedings set-ff is quite diff from counterclaim.”
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- 1.5…counterclaim 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 set-
off, 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
(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).
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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.
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.
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 cross-
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defendant 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 cross–claim
had not be joined.
News Ltd v ARFL (Superleague Case):

[note: this is not an addition case but they’re 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 person’s rights or liabilities to a party
should not be made unless that person is also joined as a party.
- Here, they didn’t 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:
- 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 shouldn’t
do that because it was their land.
- Judge asks – where’s the council?
- Parties say they’ve asked the council and it’s not interested in being party
- Judge disagrees, and that if he finds that it’s a road, then that liability / right affects the
council and therefore they should be a party to this action.
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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 defendant’s 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.
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
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same capacity, in respect of each cause of action,

(b) if the plaintiff sues:
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
(c) if the plaintiff claims the defendant to be liable:
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
(d) if the court grants leave for all of the causes of action to be dealt with in the same
proceedings.
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)
- 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.
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- 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.

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.
79
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,
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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
- 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.
81
- 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 it’s filed. If it’s served to someone outside NSW, it’s valid for
6 months.
o A failure to serve the originating process within the prescribed time doesn’t
prevent the plaintiff from commencing fresh proceedings by filing another
originating process.
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 the Dictionary.
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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.
83
- 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
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
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If a defendant wishes to object to the jurisdiction, or the originating process, or service of the
originating process, what should be done?
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, 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.
- 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.
- -
85
-
- 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.
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 plaintiff’s 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
86
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 (defendant’s 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.
(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).
87
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 Gruzman’s application
is, in effect, an application pursuant to r12.6(2) to obtain the Court’s leave to withdraw the First
Defendant’s 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 doesn’t encompass an aspect in your pleading, then you can’t take advantage of it
– then you’re encouraged to plead as broadly as possible) and adversarial nature of the
trial process (inclined to force plaintiff to proof – don’t 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 don’t 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.
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.
88
- 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 bank’s 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 bank’s statute-barred
defence didn’t 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 didn’t 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 party’s right to this basic requirement of procedural fairness. (Although
the bank has informal notice, they took the view that they weren’t engaged in this
because the action is time barred and the plaintiff had done nothing to persuade
them that the time-bar doesn’t 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”
Asic v Rich
3. Each objection asserted that the line of questioning was outside ASIC’s 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 ASIC’s case alleged serious contraventions of the law by the
defendant
89
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 you’ve
pleaded. You can’t 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 – court’s going to be concerned about
how much prejudice the other party’s going to receive by allowing you to amend.
90
Service Amendment, Mistakes
Class 8: Service (Chapter 8: 8.430 to end)

Amendment, Mistakes (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 Employeer’s 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
91
Evidence – you’re 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
r14.19terms are themselves
Pleadings may raisematerial
points of law
A pleading may raise any point of law.
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.
- 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 – it’s 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
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 def’s 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 don’t 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 defendant’s (Ajax)
crane => negligence
- During a casual conversation, def says he won’t 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 didn’t 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
def’s particulars.
- Court held that def didn’t 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 can’t complain that def didn’t alert him that mech failure
was an issue because P always had to prove his claim i.e. prove mech failure
93
Trial by Ambush not OK
Glover v Aus ultra Concrete Floors Pty Ltd

FACTS:
- P thinks by virtue of D’s defence that the facts re how he injured himself are not going to
be an issue, just the quantum of damages
- At trial, D’s case was different in that fraud was alleged
HELD:
- 53. The general impression the defendant gave was that the main thrust of the
respondent’s 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 respondent’s case at trial, however, was a different kettle of fish
- 55. The respondent’s 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 didn’t do this)
- 61. In my opinion, the respondent’s non-admission plea in answer to the appellant’s
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 could’ve 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 MF’s 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 don’t 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
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 shouldn’t 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 don’t 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 MF’s are in particulars rather than pleadings)
- The court’s 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
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 wouldn’t 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 court’s 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
Embarrassment – can’t 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
court’s 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 court’s exercise of these powers.
97
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
- 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 we’ve 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 carrier’s liability in Proctor was created by the
Civil Aviation (Carriers Liability) Act 1967 (NSW), this State’s 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 P’s statement of claim identified Jamiel Antoun as (a) builder, and (b) the
owner/occupier
101
- 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 court’s 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
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 ship’s 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 person’s 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 appeared…is 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
- 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 it…could 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…”
104
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 court’s 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 person’s 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
o A doc can be left with the person even if the doc is not taken into that person’s
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 ‘we’d 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 doesn’t have to be elaborate, just say it’s a statement of claim)
o In Graczyk v Graczyk, the requirement of putting the document down in the
person’s 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 party’s 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.
106
r10.13 Acceptance of service by solicitor
If a solicitor notes on a copy of:

r10.14(a)Substituted and process,
informalorservice generally
any originating
(1) If (b)
a document that is required or permitted to beto
served on a person in connectionbut
with
any other document required or permitted be served in any proceedings, notany
required
proceedings:
to be personally served,
that he or(a)
shecannot practicably
service ofbe
theserved on the onperson, or any person, the document is taken to have
accepts document behalf of
been duly(b) cannot
on practicably
that person be
onserved
the dateononthewhich
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theinnote
the manner
is made provided
or on suchbyearlier
law, date of service
served
the court may, by order, direct that, instead of service, such steps be taken as are specified in
as may be proved.
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
- 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 defendant’s 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.
- 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
107
- 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 def’s 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
- 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
108
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.
- 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 plaintiff’s 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
109
- 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 doesn’t 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 plaintiff’s 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
- 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.
110
- 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.”
111
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 plaintiff’s 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
- 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 discretion…exercised 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)]
113
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 plaintiff’s 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 court’s 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 plaintiff’s 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
- 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 court’s 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
- 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 defendant’s
cost of defending the plaintiff’s 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
plaintiff’s 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
- 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 applicant’s case
2. Whether the applicant’s impecuniosity was caused by the respondent’s conduct subject
of the claim
3. Whether the respondent’s 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 established…that 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
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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 Court’s 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 Court’s 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 plaintiff’s 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;
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(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 hadn’t 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 (don’t 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 can’t use this letter against them
o ‘Without prejudice save as to costs’ - anything that’s in the letter e.g. re liability
can’t 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.
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- 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 winner’s 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 winner’s costs
r42.13 Application
r42.13A Where offer accepted
This Division applies (1)
to proceedings in respect
This rule applies if theofoffer
which an offer of compromise (the "offer
concerned:
concerned") is made under rule 20.26
(a) is madewith respect
by the to a plaintiff's
plaintiff and acceptedclaim
by(the "claim concerned").
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.
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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:
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.
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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:
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 D’s costs on ordinary basis from commencement of proceedings up to 12th March
- P pays D’s 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 order 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:
122
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 isn’t 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 party’s 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 offeree’s 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…”
(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, it’s 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 offeror’s favour. (Offeror under UCPR Offer of
Compromise doesn’t bear any burden, it’s up to the offeree who refused to make an
argument about why they shouldn’t’ get the indemnity costs)
1. the Calderbank offer must be “a genuine offer of compromise.”
123
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 non-
compliance, 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
- 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
offeror’s 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
124
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 oral
submission.
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Gathering information and evidence
Class 11: Gathering information and evidence

(Ch11, omit 11.50-11.60, 11.95, 11.110–11.130, 11.170, 11-190–11.200, 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 time’s 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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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 party’s own case or
damage that of the adversary
- UCPR is narrower than the traditional CL approach in that it’s 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
- 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 one’s 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.
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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 side’s
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.
Rules don’t 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:
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- (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 don’t have to be disclosed include
(c) any document that wholly came into existence after the commencement of
the proceedings.
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.
130
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
solicitor’s certificate (UCPR r21.4(3))
The affidavit by Party B verified the list
The solicitor’s certificate certifies that advice has been given about Party B’s 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 court’s 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).
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
131
- 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 doesn’t 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.
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. 132
- 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 can’t 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, we’re 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
- don’t need to go to court
- inter-parties, easy process
- requirements: documents contained in the opponent’s 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
- 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
133
- 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.
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
134
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 don’t 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 party’s 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
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)
135
- 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.
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.
Interrogatories (SEE INTERROGATORY RULES - below)
 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)
136
- 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 pre-
paid 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
(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
137
(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.
(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.
138
(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
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
139
(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
(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.
140
(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
(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
141
of the requesting party only and for the purposes of the proceedings only, the facts
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.
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
(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.
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
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
142
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
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,
143
(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
(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
144
(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.
145
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 it’s generally about
- second: solidify the facts – don’t make up facts!
- Third: pretend you’re 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:
- Don’t assume facts that don’t exist
- (listen again at 44) Methodology: Pick the issues raised, go to rules, short intro chat about
what the rule is for and why it’s 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:
146

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Class 1: Introduction to Civil Procedure

Procedural Law – adjectival law

Sources of Procedural Law

Looking at different legal systems…there are essentially Two Legal Families

Criticisms of the adversarial model

o Encouraging cooperation amongst lawyers – not much cooperation exists in an

CIVIL PROCEDURE ACT 2005 - SECT 56

Section 56 Civil Procedures Act

Principle of Open Justice [1.80]

Exceptions to Open Justice in the CPA

72 Court may prohibit disclosure of information

(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

71 Business in the absence of the public

(a) on the hearing of an interlocutory application (occurs prior to the trial or an

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

(g) if the uniform rules so provide.

Principles of a fair trial

generations of judges of the interaction, sometimes synergistic, sometimes in conflict,

The Crown as the Model Litigant

Human Rights and case management

o Paper-based versus oral processes and hearings – no cross-examination for paper-

CIVIL PROCEDURE ACT 2005 - SECT 60

The NSW Court hierarchy

Supreme Court: Common Law Division

Case management in NSW (Chapter 2: 2.10 – 2.120)

Justice delayed is justice denied. Why?

Techniques to reduce the backlog

Class 2: Case Management and Adjournments (Balance of Chapter 2)

Then came the CPA and UCPR 2005

Part 6 – Case management and interlocutory matters

How has Part 6 of the CPA affected Civil Procedure?

Metropolitan Petar v Mitreski

CIVIL PROCEDURE ACT 2005

Division 2 – Powers of court to give directions

62 Directions as to conduct of hearing

63 Directions with respect to procedural irregularities

The application of the CPA and UCCPR

2. What finally persuaded the judge?

Section 15 Practice notes

Directions hearing by telephone conference call

Electronic Case Management

- ECM is in its infancy in NSW civil court

71 Business in the absence of the public

Adjournments (Chapter 9: 9.190 – 9.220)

Class 3: Costs (Chapter 3 omit 3.350 & 3.360)

Section 60: Proportionality of Costs

Cases affected by Section 60 - s60 really affects the extent of procedure

What did the evidence show?

Vella v ANZ – court not allowing a ‘notice to produce’ to take place

s56 Overriding purpose

Duties of Litigants (see s56(3) & (4) above) and costs

Priest v NSW [2007] NSWSC 41

Parties and Costs

Solicitor & Clients costs:

Party and party costs:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

Costs against non-parties

- No prohibition against making costs orders in favour of a non-party .

Uniform Civil Procedure Rules 2005

Lawyers and costs

Legal Profession Act 2004