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Chapter 1: Introduction to Civil Procedure

1.20 Procedural Law
x Procedural law is law that governs the conduct of proceedings before the court
x Distinguished from substantive law which is defines legal rights, duties, powers and liabilities

1.30 Sources of Substantive Law

Sources of procedural law in NSW Supreme, District and Local Courts are mainly found in the Civil
Procedure Act 2005 (NSW) and the Uniform Civil Procedure Regulations
CPA provides that Uniform Rules Committee may make rules that are consistent with the Civil CPA
ss 8, 9
Some procedural Rules are found in court rules: Supreme Court Rules 1970, District Court Rules
1973, Local Court Rules 1982
Courts can issue practice notes
Rules of evidence are found in Evidence Act 1995 (NSW)

1.40 Guiding Principles for Procedure
x S56 Overriding purpose of this Act and the rules of the court in application to civil
proceedings is to facilitate the just, quick and cheap resolution of real issues in proceedings
x S56 - (4) A party to is to assist the court on this overriding purpose and a lawyer must not
breach this duty
x S58 - To court is to act in accordance with the dictates of justice in deciding any matters
(orders, directions)
x The dictates of justice are determined in a particular case by having regard to the overring
purpose and objects of case management (ss 56, 57) and matters in s 58(2)(b).
x S59 the court is to implement practices to eliminate lapse of time between
commencement of proceedings and final dterminaiotn beyond that which is reasonably
required for the interlocutory activities necessary for the fair and just determination of the
issues in dispute and preparation of case for trail
x S60 court implement practice to make costs proportionate to importance and complexity
of subject matter

1.50
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Austrian is an adversarial model of litigation:
x Party controlled dispute
x Use of precedent, procedural rules, laws of evidence,
x Judge is impartial and is reactive
x Reliance on orality
x Trial is climatic end of litigation process
x Use of trial transcript for appeal

Inquisitorial model
x Judges role is proactive and inquisitive
x Main sources of law are codes with commentary from legal scholars
x Minimal rules of courtroom practice
x Emphasis is on documentary proof not cross-examination
x No rigid separation between trial and pre-trial phases
x No use of transcript

1.60
Article explaining the adversarial and Inquisitorial models in more detail

1.65
x There has been criticism of adversarial model as it prevents justice due to costs and delay,
also unjust, unequal and inaccurate results
x Resulted in major review in England and Wales by Lord Woolf
x W
x W
Greter use of ADR
Single expert witnesses
Reduction of issues for case preparation...
x Resulted in Australian law Reform Commission conducting its own inquiry

1.70 Victorian Law Reform Commission, Civil Justice Review: Report 14 (2008) p 71
Funding is a critical factor affecting the operation of civil justice system
Governments cannot be expected to provide unlimited public funds for adjudication of disputes,
particularly ones without significance beyond interest of individual parities
Professor Zickerman
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Funding should be commensurate with available resources and importance of benefits it can deliver
Test for adequacy: Efficient, efficient and fair
Service is efficient if it meets expectations of community
Efficient if resources are used to maximise benefit out and not wasted on unproductive activities
A service is fair if resources are distributed evenly
Application to courts
Efficient if determines claims with reasonable accuracy, within reasonable time and proportionate
investment of resources
Efficient is resources are employed to maximise effectiveness and are not wasted unnecessarily
Fair it resources are distributed evenly
1 Knight Bruce VC

1.80 Principal of Open Justice

John Fairfax Publications Pty Ltd v District Court of NSW (2004)
x Open justice is one of most fundamental aspects of justice in Australia...There is no inherent
power of courts to exclude public

R v Richards & Bikerk (1999)
Justice must not only be done but seen to be done R v Sussex; Ex parte McCarthy
x Courts should be open to all, so anyone wishes to see how justice is done. No privileges to
anyone, even those who report it
x It is only in exceptional circumstance where presence of public will death paramount duty of
courts by courts proceed in camera

John Fairfax Publications Pty Ltd v Local Court of NSW (1991)
x Departure from that only if really necessary to achieve administration of justice
x This is when consequences follow and they are unacceptable
x Examples are hardship on informers or blackmail victims, would be harder to get them to
come to trial

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There are few categories of case where exceptions to open justice is valid
x They are strictly defined R v Tait

The categories are:
x To protect identity of informer - to protect informer from risks otherwise they will not
come forward
x To protect identify of victims of blackmail
x Matters of national security

Enfield v R (No 2)
Trial judge had orders a non-publication order in respect of application for leave to appeal
Held:
x The court should continues the order only if persuaded that it was necessary in order to
secure a fair trial
x The Crown held that the public should not know the factual details and future jurors may be
affected
x Court rejected this argument, holding the possibility that a juror acquires prejudicial
information always exists but juries perform their duties correctly by only using the evidence
before them

1.100 Civil Procedure Act 1005 (NSW)
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.

72 Court may prohibit disclosure of information
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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.

1.110
Re HIH Insurance Ltd [2007]
Application for HIH hearings to be made in absence of public 71(b) if the presence of the
public would defeat the ends of justice
Competing interest with interests of open of justice:
x Public interest of due and beneficial administration of estates of insolvent companies by
liquidators
x Public interest in due administration of justice
Therefore application was granted

1.120 Principal of a Fair Trial
Recognised in civil proceedings eg proper notice is fundamental to procedural fairness

1.130 J Spigelman, The Truth can Cost too Much: The Principal of a Fair Trial
x The principal of a fair trial manifests itself in every aspect of practice and procedure
x Fair trial is mostly reviewed in criminal matters and it is equally applicable to civil matters
x L Issacs J
x Fair trial is enshrined in Constitution, statue of other jurisdiction, not the case in Australia
x In Australia the principal of fair trial is based on inherent power of court to control its own
processes and to prevent abuse of process The court cannot turn a blind eye to vexatious
and oppressive conduct in proceedings
x There is some form of protection of procedural rights in Chapter III of Constitution not no
clear majority decision
x
impose non-judicial requirement inconsistent with exercise o John Fairfax
Publications Pty Ltd v Attorney General (NSW) (2000)
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x All requirements of a fair hearing, reasonable notice of case to be met are manifestations of
the principal

1.160 The Crown as the Model Litigant
x A model litigant is required to act with complete propriety, fairly and in accordance with the
highest professional standards
x The Commonwealth and States have adopted model litigate rules

1.170 New South Wales Model Litigant Policy for Civil Litigation
Nature of the obligation
3.1 The obligation to act as a model litigant requires more than merely acting honestly
and in accordance with the law and court rules. It also goes beyond the requirement
for lawyers to act in accordance with their ethical obligations. Essentially it requires
that the State and its agencies act with complete propriety, fairly and in accordance
with the highest professional standards.
3.2 The obligation requires that the State and its agencies, act honestly and fairly in
handling claims and litigation by:
a) dealing with claims promptly and not causing unnecessary delay in the handling of
claims and litigation;
b) paying legitimate claims without litigation, including making partial settlements of
claims or interim payments, where it is clear that liability is at least as much as the
amount to be paid;
c) acting consistently in the handling of claims and litigation;
d) endeavouring to avoid litigation, wherever possible. In particular regard should be
M -25 Use of Alternative Dispute Resolution Services
8 C A M -26 Litigation Involving
Government agencies;
e) where it is not possible to avoid litigation, keeping the costs of litigation to a
minimum, including by:
i) not requiring the other party to prove a matter which the State or an agency
knows to be true; and
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ii) not contesting liability if the State or an agency knows that the dispute is
really about quantum;
f) not taking advantage of a claimant who lacks the resources to litigate a legitimate
claim;
g) not relying on technical defences unless the interests of the State or an agency
would be prejudiced by the failure to comply with a particular requirement and
M -26;
h) not undertaking and pursuing appeals unless the State or an agency believes that it
has reasonable prospects for success or the appeal is otherwise justified in the
public interest. The commencement of an appeal may be justified in the public
interest where it is necessary to avoid prejudice to the interest of the State or an
agency pending the receipt or proper consideration of legal advice, provided that a
decision whether to continue the appeal is made as soon as practicable; and
i) apologising where the State or an agency is aware that it or its lawyers have acted
wrongfully or improperly.

3.3 The obligation does not require that the State or an agency be prevented from acting firmly
and properly to protect its interests. It does not prevent all legitimate steps being taken in
pursuing litigation, or from testing or defending claims made.

3.4 In particular, the obligation does not prevent the State or an agency from:
a) enforcing costs orders or seeking to recover costs;
b) relying on claims of legal professional privilege or other forms of privilege and claims
for public interest immunity;
c) pleading limitation periods;
d) seeking security for costs;
e) opposing unreasonable or oppressive claims or processes;
f) requiring opposing litigants to comply with procedural obligations; or
g) moving to strike out untenable claims or proceedings.


1.80 The Right of Fair Trial Recognised in Human Rights Legislation
Not in Cth and NSW
Reasons for Bill of Rights See p22 -24
Efficiency may conflict with fundamental rights p24
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Chapter 2: Case Management in NSW

2.10 Introduction
All courts in NSW are now controlled by same set of court management rules
These are the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules

2.20 Justice delayed justice denied why
x Witnesses die
x Memories fade, records may be lost
x Add to costs (time sheet, have to work again whts going on), cost amounting
x Cases waiting start to back up
x Echoed in Jackamara v Krakoer p 25

2.30
x Legal culture developed that accepted and adapted to the fact that it took years to get a
case on for trial delay a cultural norm.

2.40 Overview of NSW Court System

2. 90 Techniques to reduce the backlog:
x Increased jurisdictional limit of the lower courts allows transfer of cases from SC to DC
x Additional full time judges and acting judges appointed - Senior barristers were appointed,
there were judicial independence issues at first but practice changed once breakthrough
was made now only retired judges are acting judges when needed.
x Non-complex personal injury cases referred to arbitration
x A
cases were listed together hundreds of cases heard together by same judges in short time,
once one settle or solved, another would start - greater pre-trial disclosure imposed and no
adjournment policy powerful incentive for legal practitioners to settle cases.
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x Substantial delays of 5 years or more substantially reduced. DC now aims to provide final
hearing within 12 months of commencing and in SC 2 years.
x Focus now is more on reducing costs but case management can increase costs indeed
coasts can be shifted.

2.100 NSW Case Management
x Principal driving force for case management was acceptance that there was too much delay
x 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.
x Introduction of case management corresponded with two important developments
Gradual disappearance of civil juries
Replacement of oral testimony with written testimony usually as affidavits. These
affidavits providing examination in chief often with supplementation except where there
are important issues related to the credibility of a witness oral tradition being
modified.
x By 2000 changes were mdae to Supreme Court Rules (NSW) that foreshowed the content of
the, CPA and UCPRs -p30
Overriding principle of just, quick and cheap
Obligation on a party to assist the court to further the overriding purpose
Rules imposed on all parties an obligation to refrain from making allegations, or
maintaining issues unless it is reasonable to do so.
Power in the court, take into account failure to comply with these duties by a party
when exercising the courts discretion to award costs.
Rules identified a range of specific directions
...

2.115 JJ Spigelman AC, Case Management in NSW
x Case management in Common Law Division starts when summons or statement of claim is
filed in registry.
x Each summons or statement of claim is given a return date before a Judge or Registrar and
placed in a list
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x A Judge is appointed to manage each list, whilst the Common Law list Judge monitors all
matters listed for hearing before a Judge
x More detail p31-33


2.120 Case Management
x Spigelman:
A reason managerial judging emerged is because of what economists call market failure
due to asymmetry in information lawyers have all the knowledge, normal people do
not
Managerial judging offsets this

x Case management has the potential to impose increased costs on the parties as court
appearances increase.
x To ensure this doesnt happen, the court must be more judicious in how many times cases
come to court
x 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. The is the overriding test of judicial legitimacy
x A pre-occupation with disposal of cases leads to issues of quality of justice. Case
management raises fundamental efficiency and justice.
x Justice must not be compromised

Queensland v JL Holdings Pty Ltd
Facts:
x Claim damages for failure of a building development to proceed after a change of
government, QL sought leave to amend its pleadings to allege non-compliance with the
relevant legislation. The trial judge and the Full FC refused leave to amend because it should
have been done years ago. It would require more discovery and longer trial, delayed. HC did
not accept this view and overturned the decision.
Dawson, Gaudron and McHugh JJ:
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x Not the occasion for the punishment of a party for its mistake or for its delay in making the
application. Case management was in this case a relevant consideration. It should not have
been allowed to prevail over the injustice of shutting the applications out.
Kirby:
x The conviction that accumulating delays occasion serious injustices has led to a greater used
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 no. and
resources.
x But whilst it remains in judicial hands it is a function which must be performed with
flexibility and with an undiminished commitment to afford to all to come to the courts a
manifestly just trial of their disputes

2.140 CPA & UCPR
x The CPA and the UCPR consolidate the existing provisions about civil procedure into a single
act and a set of rules that apply uniformly to all 3 NSW courts.
x The CPA and 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 orders, directions, rules and
practices.
x S56 provides that parties have a statutory duty to assist the court to further this overriding
purpose, therefore, to participate in the courts processes and to comply with directions and
orders.
x When exercising any power a court is required to give effect to the overriding purpose
expressed in s56 of CPA, to facilitate the just, quick and cheap resolution of the real issues.
x s57 &58 are congruent with just, s59: quick, s60: cheap. S57 & 58(1) and 2a are mandatory
whereas s58(2)(b) is discretionary.
x s58(2)(b): conduct of the party, how diligent have u been.







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2.150 CPA
56 Over riding purpose
(cf SCR Part 1, rule 3)
(1) The overriding purpose of this Act and of rules of court, in their application to civil
proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the
proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power
given to it by this Act or by rules of court and when it interprets any provision of this Act or
of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding
purpose and, to that effect, to participate in the processes of the court and to comply with
directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in
breach of the duty identified in subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in
exercising a discretion with respect to costs.

57 Obj ects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1),
proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost
affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and
procedure of the courts are to be so regulated, as best to ensure the attainment of the objects
referred to in subsection (1).

58 Court to follow dictates of j ustice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
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(2) For the purpose of determining what are the dictates of justice in a particular case, the
court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them
relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the
proceedings, including the degree to which they have been timely in their interlocutory
activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen
from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been
available to the party in the course of the proceedings, whether under rules of court, the
practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence
of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.

59 Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the
object of eliminating any lapse of time between the commencement of the proceedings and
their final determination beyond that reasonably required for the interlocutory activities
necessary for the fair and just determination of the issues in dispute between the parties and
the preparation of the case for trial.
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.







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2.160 How has Pt 6 of the CPA affected civil procedure?
Metropolitan Petar v Mitreski
x Under it, the guidelines for dealing with case management and procedural applications have
changed considerably from the previous regime.
x Draws on the English experience and uses the word overriding purpose- S56, supplemented
by s57 to s60.
x s57 says that for purpose of furthering the overriding purpose, the court is to have regard
to certain objects
x s58 The court when deciding what orders to make, must be with dictates of justice
fleshed out by (2)
x One is not now dealing with what in the old days was called entitlements to an order and
focusing principally on the rights of a party in litigation, but one is now looking a t a much
broader picture, that is the overall just disposal of the proceedings within a reasonable time.
The court is required more to focus on s56 to s60.

Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd; Robert Lloyd Brooks v Clark Rubber
Franchising Pty Ltd
x The overriding purpose and the rules of court now enshrined in s56, is to facilitate the just,
quick and cheap resolution of the real issues in the proceedings.
x Each of the objects of case management now to be found in s57, as well is the criteria for
each case: s 58(2), s 58(2)(b)
x Ensure the efficient disposal of the business of the court and timely disposal of the
proceedings at a cost affordable by the parties.

2.180 Essay by UNSW Law Student on CPA
Less evolutionary and merely confirms evolving practices

2.190 Directions
x The object of case management identified in the CPA and the UCPR are just determination of
proceedings, efficient disposal of business of court, efficient use of resources and timely
disposal of proceedings at cost affordable by parties
x A comprehensive range of powers to exist to do this include
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Power to direct parties to take specified steps and to comply with timetables and
otherwise to conduct proceedings as directed.
Powers with respect to the conduct of the hearing, including limiting the time that may
be taken in cross-examination, limiting the no. of witnesses, limiting the no. of
documents that may be tendered, limiting the time that may be taken by a party in
presenting its case or in making submissions. S62(3)
Power to be exercised subject to the requirements of procedural fairness and are to take
into account a range of relevant matters, including the subject mater and the complexity
or simplicity of the case, the efficient admin of court lists 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 was unsuccessful.
x Case management is undertaken through a series of directions hearings b4 a judge or
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 SC, the first directions hearing will be
appointed for approximately 3 months after proceedings.
x Directions given at the directions hearing are binding and a range of sanctions are available
if they are breached.

2.200 CPA
61 Di rections as to practice and procedure generally
(cf SCR Part 23, rule 4; Act No 9 1973, section 68A)
(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,
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(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,
(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 Di rections 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,
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(c) the volume and character of the evidence to be led,
(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 oI the length oI 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 Di rections with respect to procedural i r regularities
(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.

2.210 The Uniform Civil Procedural Rules

2.220 CPA

8 Uniform Rules Committee
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(1) There is to be a Uniform Rules Committee comprising 11 members, of whom:
(a) one is to be the Chief Justice of the Supreme Court or a Judge of the Supreme Court
nominated for the time being by the Chief Justice, and
(b) one is to be the President of the Court of Appeal or a Judge of Appeal nominated for the
time being by the President, and
(c) two are to be Judges of the Supreme Court appointed by the Chief Justice, and
(c1) one is to be the Chief Judge of the Land and Environment Court or a Judge nominated
for the time being by the Chief Judge, and
(d) one is to be the Chief Judge of the District Court or a Judge of the District Court
nominated for the time being by the Chief Judge, and
(e) one is to be a Judge of the District Court appointed by the Chief Judge, and
(f) one is to be the Chief Magistrate or a Magistrate nominated for the time being by the
Chief Magistrate, and
(g) one is to be a Magistrate appointed by the Chief Magistrate, and
(h) one is to be a barrister appointed by the Bar Council, and
(i) one is to be a solicitor appointed by the Law Society Council.

9 Uniform rules
(1) The Uniform Rules Committee may make rules, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed by rules or that
is necessary or convenient to be prescribed by rules for carrying out or giving effect to this
Act.
(4) The rules made under this section may authorise or require the use of an electronic case
management system established under section 14B of the Electronic Transactions Act 2000
in relation to any proceedings in a court in respect of which the use of such a system is
authorised by an order in force under section 14C of that Act.

14 Court may dispense with rules in particular cases
In relation to particular civil proceedings, the court may, by order, dispense with any
requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of
the case.

15 Practice notes
(1) Subject to rules of court, the senior judicial officer of the court may issue practice notes
for that court in relation to civil proceedings to which this Act applies.
(2) Part 6 of the Interpretation Act 1987 applies to a practice note issued under this section in
the same way as it applies to a rule of court.

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16 Court may give di rections in ci rcumstances not covered by rules
(1) In relation to particular civil proceedings, the court may give directions with respect to
any aspect of practice or procedure for which rules of court or practice notes do not provide.
(2) Anything done in accordance with such a direction (including the commencing of
proceedings and the taking of any step in proceedings) is taken to have been validly done.

2.230 UCPR

2.1 Di rections and orders
The court may, at any time and from time to time, give such directions and make such orders
for the conduct of any proceedings as appear convenient (whether or not inconsistent with
these rules or any other rules of court) for the just, quick and cheap disposal of the
proceedings.
2.2 Appointment for hearing
The court may, at any time and from time to time, of its own motion, appoint a date for a
hearing at which it may give or make the directions or orders referred to in rule 2.1.
2.3 Case management by the court
Without limiting the generality of rule 2.1, directions and orders may relate to any of the
following:
(a) the filing of pleadings,
(b) the defining of issues, including requiring the parties, or their legal practitioners, to
exchange memoranda in order to clarify questions,
(c) the provision of any essential particulars,
(d) the filing oI 'Scott Schedules reIerred to in rule 15.2.
(e) the making of admissions,
(f) the filing of lists of documents, either generally or with respect to specific matters,
(g) the delivery or exchange oI experts` reports and the holding oI conIerences oI experts.
(h) the provision of copies of documents, including their provision in electronic form,
(i) the administration and answering of interrogatories, either generally or with respect to
specific matters,
(j) the service and filing of affidavits, witness statements or other documents to be relied on,
(k) the giving of evidence at any hearing, including whether evidence of witnesses in chief
must be given orally, or by affidavit or witness statement, or both,
(l) the use of telephone or video conference facilities, video tapes, film projection, computer
and other equipment and technology,
(m) the provision of evidence in support of an application for an adjournment or amendment,
(n) a timetable with respect to any matters to be dealt with, including a timetable for the
conduct of any hearing,
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(o) the filing of written submissions.

2.240 The application of the CPA and UCPR

2.245 Chandra v Perpetual Trustee Victoria Ltd
x Before 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)
x The court must give effect to the overriding purpose, facilitating the just, quick and cheap
resolution of the real issues in the proceedings - S56 (1) (2)
x -Substantive provisions in CPA, alters in significant ways the power of the court to give
directions concerning the conduct of proceedings, and in broad terms expects the court to
take a firmer hand in the preparation of matters than had previously been the case.
x 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 the role in the expeditious advancing of the proceedings, list
that partys own conduct which has prevented a hearing taking place. The power to dismiss
proceedings for failure to comply with directions is one which will be used in appropriate
cases.
x The ultimate aim: attainment of justice. Efficiency in procedures is of less weight than the
injustice of precluding the determination on the merits of a genuine issue between the
parties. 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 firsts
procedural defaults.

A & N Holding NSW Pty Ltd v Andell Pty Ltd examine s56-60
x Defendants claim case to be dismissed due to plaintiffs numbers breaches of Court orders
and directions over past 12 months
x Had the plaintiff complied with the court orders this case more probably than not, would
probably have been heard and determined before now.
x S 57 requires consideration of objects of case management - Only one less case in the list is
this case struck out, but resources should be used in such an important
x Objectives of cheap are not meat if parties must return to court over and over again
x The act also requires consideration of series of matter that are relevant under s58 (2)(b)
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The degree of difficulty of complexity
Matter is the degree of expeditions with which the respective parties have approached
the proceedings
The degree in which lack of expedition was beyond the control of the parties plaintiffs
not in this position
The degree of injustice that would be suffered by respective parties as a consequence of
any order of direction only prejudice is costs orders here
The effect on the administration of justice Commercial List is a busy list
x Is it proportioned to strike out the case - No
x Injustice was only unnecessary expenses.

2.260 Practice notes:
x S15 CPA gives a statutory basis for the issue of practice notes and regulates the relationship
between itself and the UCPR
x Each judicial officer of L, D, SC will be able to issue practice notes to deal with specific
aspects of civil proceedings in their respective courts.
x Convenient way of indicating the practicalities of procedure.

2.270 practice Note SC CL 5 Supreme court Common law Division General Case Management List G
x Applies in CL division.
x Applies to all active proceedings commenced by statement of claim in the CL division or
proceedings transferred from another court or division of the SC that are not proceedings in
the Defamation list, the professional negligence list, the possession list, proceedings that are
commenced in admin law list.
x When a plaintiff files an originating process a notice is issued by the registry indicating a first
directions hearing approximately 3 months later. At the same time as filing the originating
process a P must file GCM documents and any other party must file GCM documents no
later than one month b4 the first directions hearing.
x There are additional documentary obligations for diff kinds of claims, however, each party at
a min, 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 fact, but not law, upon
which liability is likely to depend Such info would otherwise not have been made available
until much later in the process.
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x Before the directions hearing, parties are expected to have:
discussed the case to narrow the issues and identify any matters or agreement.
agreed on suitable interlocutory orders, directions or arrangement

x At the directions hearing the registrar or judge manages how the case will proceed eg
transferring the case to another court, defining issues, including liability, directing that
witness statements be filed or served; considering whether ADR is suitable; making consent
orders for the completion of interlocutory steps such as discovery, interrogatories, medical
examinations or expert reports.
x Platiff at the first directions hearing is to provide each party with an evidentiary statement
and within 28 days, the D is to serve on the P a concise statement of issues in dispute and
an indication of the parts of evidentiary statement the D requires to be given orally. Then
within 14 days receipt of the statement of issues in dispute the D must provide a statement
identifying issues that are agreed and not agreed.

Directions hearing by telephone conference call
x What matters are considered appropriate for a directions hearing by telephone conference?
Both parties got together and agreed that this order is what they want the court to
order. (consent order) Consent order can be made.
If outside country, can bring contest matter.
x What kind of directions can be obtained?
adjournments
allocation of hearing days
x Parties are required to fax any proposed directions to the CL case management registrar by 5
pm on the day b4 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.





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2.290 Electronic case management
Infancy in NSW
Electronic Transactions Act 200 (NSW) allows Attorney General to establish an electron case
management system details p54-57



2.300 CPA
71 Business in the absence of the public
(cf Act No 52 1970, section 80)
Subject to any Act, the business of a court in relation to any proceedings may be conducted in
the absence of the public in any of the following circumstances:
(a) on the hearing of an interlocutory application, except while a witness is giving oral
evidence,
(b) if the presence of the public would defeat the ends of justice,
(c) if the business concerns the guardianship, custody or maintenance of a minor,
(d) if the proceedings are not before a jury and are formal or non-contentious,
(e) if the business does not involve the appearance before the court of any person,
(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit,
(g) if the uniform rules so provide.










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9.190 Adjournments
x The court has inherent as well as statutory power under s66 to adjourn
x It is for the court to decide on adjournments, consent by both parties not enough
x The court is to have regard to traditional view of interest of litigates in particular case and
s56 (overriding purpose) and s58 (dictates of justice) of CPA

9.200 CPA
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.

9.210 City of Sydney Council v Satar
x Section 66 is a wide and ample power to adjourn, the principal consideration being what is
necessary to do justice between the parties

9.220 Murtough v Betham
M sent email at 9:27 to say he could not attend and the court to telephone him to hear submissions

24: s56, 57, 58, 59 CPA. 58(2)
25: s59
27: the balance between giving to a party a further opportunity and the injustice to another party
caused by any such delay is often difficult.
28: The HC, relaying upon Maxwell v Keun,..should only be refused if that is the only way that
justice can be done to another party in the action.
1 ..to ensure that the party takes adv of the opportunities given
to him and to which he is entitled.
31:
33:
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Chapter 3: Costs of Litigation

3.10 Introduction
Costs affects access to justice as costs can place courts beyond reach of those who cannot afford it

3.20 Costs Shifting and Costs generated by Courts

Spigelman:
x Case management may impose disproportionate, indeed even unnecessary, costs on the
parties. From the outset of the modern case management, concerns were expressed that
the effect would be to frontload costs by bringing forward costs, including in many matters
that would in the normal course have settled without incurring any such costs at all.
x When courts are generate at front (eg serving notices, preparation of documents ) the trial
may be set months later frontload costs. They can settle first! But what if settle after
those preparation but before trial, would still have those frontload costs?
x To reduce costs could reduce in the no. of times a matter is brought b4 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.
x Extensive use of telephone directions hearings and electronic communications must be
given a higher priority than in the past.
Case management: important to have regard to the tendency of any rational participant in
the process to shift costs from themselves to other participants.
x eg overlisting
x The discretion of court to award costs. Not costs chargeable to the client but costs awarded
to a successful litigant.
x The objective is to create costs incentives for parties to narrow the scope of disputation and
to make serious attempts to settle.
x Let parties be more serious in
x Such incentives already are undertaken in the regime developed for offers of compromise,
(which include indemnity costs)
- Eg Ps solicitor own client costs: $400/hour work (barrister)
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P v D, P wins. D pays P the winner cost. When D pays the Ps cost, D pays party-party costs
ordinary basis or indemnify basis. O: $100/hour work, I: $200/hour work. ( $O < $I ). Loser pays
winner in ordinary basis.
Lets say 100 hours. $40000, D might just pay that cost for only $10000 under ordinary, however,
$20000 under indemnity. So if get ordinary award, client would still owe his own lawyer $30000.

3.30 Proportionality of Costs
The proportionality of costs is given legislative effect under s60 and to be applied in conjunction with
s56-59

3.55 Spigelman
The cost of dispute resolution must in some manner be proportionate to what is in dispute
Areas of practice in which costs involved bear no rational or proportionate relationship to what is
involved must be reviewed
Example of Case that went to House of Lords 1

Piglowska v Piglowski
What is required is appropriate rather than perfect justice
The objective is to create costs incentives for parties to narrow the scope of disputation and to make
serious attempts to settle
This can be done by controlling proceedings through use of cost sanctions
More areas of dispute may be taken away - eg no fault liability schemes

3.65 Zanella v Madden
x Application in respect of joint tenancy of a property at Glen Davis. Torrens System land
registered in the name of the plaintiff and the defendant as joint tenants. The problem is
that the P now wishes to realize the land, but she has not heard of the D for many, many
years.
x rather than let the client to spend money on advertisement to find the person and in
relation to the amount of money dealt, court said its proportionally not worth it.


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3. 75 Vella v Australia & ANZ
x It a case where a trial costs at least $100,000 a day, bearing in mind ss56 60 of CPA, the
court will unlikely interrupt the trial to deal with late subpoenas or notices to produce
x An application to have documents produced on a notice to produce bearing date 4 march
2008 directed to the ANZ band and an application for setting it aside.

3.100 Priest v NSW
In a sense, S 56 has the result that every litigate in civil proceedings in NSW is a model litigate
Defendant has not discharged obligations under s56 there has not been just, quick and cheap
resolution of issues
Defendant is to pay costs of Plaintiff on indemnity basis

3.110 CPA
98 Courts powers as to costs
(cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section
148B; Act No 11 1970, section 34)
(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.
(4) In particular, at any time before costs are referred for assessment, the court may make an
order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
(5) The powers of the court under this section apply in relation to a married woman, whether
as party, tutor, relator or otherwise, and this section has effect in addition to, and despite
anything in, the Married Persons (Equality of Status) Act 1996 .
(6) In this section, "costs" include:
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(a) the costs of the administration of any estate or trust, and
(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal,
and
(c) in the case of proceedings transferred or removed into the court, the costs of the
proceedings before they were transferred or removed.

3.120
x There general law principal is that costs order should only be made against a party to the
proceedings, however a costs award against a non-party could happen in exceptional
circumstances
x S98 is broad enough o allow orders against non-parties
x R 42.27 and 42.3(2) Provide exceptions to the general rule
x Eg, in the case of nominal parties or next friends, where a person who is a 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.

3.130 Lawyers and costs
x CPA and legal Profession Act 2004 provide for costs to be order against lawyers personally
x S
x S347 of LPA requires a lawyer to certify that there a claim has reasonable prospects of
success
x s348 of LPA and s99 of CPA provide sanctions
x However lawyers should not be discouraged from fearlessly pursuing the interest of their
client and financial prejudice occasioned by unjustified litigation should be discouraged
x 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..p68
x s348(1)(b)): Eg P v D1 and D2. Ps solicitor does not have reasonable prospects of success as
a result D won. If D1 did something wrong to D2 that adverse D2, Ps solicitor will have to
indemnify the cost of D1 that he needs to pay D2 as he initiates the case with no reasonable
prospects of success (his fault) in the first place. (we are here because of Ps solicitor brought
the case because of his fault, tats why he is responsible for D1s wrong to D2)
x s349
x See p 68-70 for statutes
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SC Gen 5 SC costs orders against legal practitioners.
x Where the court is minded to make a costs order against a legal practitioner personally:
x A practitioner will be given an opportunity to show case why costs should not be ordered
against him or her.
x 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 b4 the court.
x May adjourn the matter
x Further direct the matter by written submission and by reference primarily to the materials
that were b4 the court during the proceedings to which the costs order relates.
x If it will assist court, the other parties maybe directed or invited to make submissions in
relation to the question of costs or any ancillary matter.
x If a practitioner informs the court that the he has requested his client to waive legal
professional privilege, the court



What can be done to ensure fairness?
3.155 Firth v Latham: determine whether a costs award against a legal practitioners should be made.
x A lawyer is required to ensure that a claim or a defence has reasonable prospects of success
need to act like a judge
x Reasonable prospects of success is with regard to reasonable belief to provable facts and his
view of the law
x No express requirement that material must a admissible
x There is a continuing obligation up to this point, there is prospects of success. But after
that, there is no reasonable prospects of success. The lawyer should stop, but he did not.
The court would be very conscience in looking into details.
x The question is whether the claim of defence well unquestionably outside the range of view
that could reasonably be entertained
x P

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3.165 CPA
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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3.170 Re The Black Stump enterprise Pty Ltd and Associated Companies (No 2)
x Order a lawyer to pay costs of legal proceedings in respect of which he provided legal
services must be exercised with care and discretion and only in clear cases
x One of the court difficulties when applying the test as to whether it is the solicitor or client
that is the real cause of the problem. The legal professional privilege may prevent the lawyer
from informing the court of what truly happened. Without the clients release, the lawyer
may well be unable to give the court full info.

3.180 Whyked Pty Ltd v Yahoo!7Pty Ltd (s348(1)(b))
para3, 4, 5, 14, 16, 17, 182, 183, 184
x Ridehalgh v Horsefield
A legal practitioner may be orders to pay costs by serious neglect, incompetence or
misconduct (s 99(1)(a) or incurred improperly or without reasonable cause, in
circumstance for which he or she is responsible (s99(1)(b)
Negligence should be understood in an untechnical way to denote failure to act with
competence reasonably expected of ordinary members of profession
A lawyer is not held to have been acted improperly, unreasonably or negligently simply
because he acts for a party that has a case that is doomed to fail
x Ideal waterproofing:
Ordering costs against lawyers should be used sparingly because the court would not
always know the full details of the case
x S99 does not deter lawyers from advancing difficult cases or accepting cases from
impecunious clients
x A case that is not manifestly hopeless should not be denied to litigate it objective
x If the client is too poor there can be an order for security for costs

3.190 The Purpose of Costs
x C
s) in conducting the case
x Costs are not awarded as a divided or punishment
x However costs can be used to encourage parties to comply with an order or judgement
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x Eg UCPR r 42.10 and mechanism to encourages settlements

3.200 Dr Bronte Douglass v Lawton Pty Ltd (No 2) [2007]
Costs should be for compensating, not punishment
A partly held that an order of costs was for punishment due to remarks of judge who said that the

Court he
that the order was normal




3.220 Solicitor and client costs

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 from which the client is personally liable.

Party Party costs
Party and party costs are the costs the court usually orders one party to pay to another. These party
and party costs usually only partially indemnify the recipient against the costs.
Costs are assessed on ordinary basis unless court orders otherwise
Occasionally party and party costs are awarded on an indemnity basis to compensate a party for the
misconduct of another allow for all costs incurred except those that appear to have been
unreasonably incurred or those that appear to be an unreasonable amount

3.240 Costs follow the event the usual costs order
Costs are in the discretion of the court s98(1)(a)
Costs follow the event unless otherwise ordered successful party gets awarded costs

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3.250 Baulderstone Hornibrook Engineer Pty Ltd v Gordian Runoff Ltd
Usual Order
z A party may not longer put another to the proof of a fact when the first knows is true without a
costs penalty where the party put to proof establishes the fact.
z The usual order is that costs follow the event (Oshlack v Richmond River Council). 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.
Apportionment
z An unsuccessful party may be ordered to pay all the costs, even though the successful party did
not succeed on all issues special circumstances otherwise
z Special circumstances when a particular issue is clearly dominant or separable
Multiple Parties
z Courts will not normally allow more than one set of costs to successful litigant where there was
no possible conflict of interest between them in the presentation of their cases
z Also because defendants would be reasonably acting at arms length with each other
z They will also be deprived of part of their costs if they act unreasonably by duplicating costs on
any particular matter
z EG - If the D could identify separate and dominate issues and win against the P on those issues,
court may order the cost in favour of the D in terms of those separate issues (even though the
whole trial is won by the P). If the P is the overall winner, but the D wins on certain separate
and dominate issue, the D could be awarded the costs on the issues he won, but will have to
pay the P on the other costs
Indemnity costs
z Court can do this under s98(1)
z Awarded when case involved some relevant delinquency, abuse of process, or
unreasonableness on the part of the unsuccessful party
z prolonging a trial by litigating issues that are not real issues is capable of constituting relevant
delinquency

z Court may order payment of interest the governing consideration is to compensate a party,
which is out of pocket having to pay costs
z However there is an important rider parties are entitled to in good faith, determine to litigate
issues reasonably believed at the time to be real issues
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3.260 Specific costs orders
z No order as to costs this means that no party is awarded costs against another and each party
bears its own costs
z Costs in any event the party who is ordered to pay the costs is responsible for those costs
irrespective of the outcome of the proceedings where without another specific order, costs
would follow the event.
z Costs thrown away - which are costs that are wasted becoz of one partys error or failure to
comply with a court direction or rule of court.
z Costs in the cause concerns the costs of an interlocutory application. Costs in the cause
become party 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. (the loser has to pay the
winner the cost)


indemnity basis: much more generous scale for allowance of particular costs.
no automatic order, the court has to make the order.
costs follow the event the usual costs order

3.290 Joining Parties and Costs
Eg D1: builder. D2: engineering.
If the cost follows the event, cost is paid by D2 P, and P D1.

3.330 Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu (No 2)
P = Naidu sued ISS (D1) and Nationwide (D2)
ISS is entitled to receive its costs of the trial. The question is who should pay them. Pursuant to a
Sanderson order, the unsuccessful D, namely Nationwide, may be order to pay the costs of the
successful D, namely ISS.
Preconditions for costs to be paid from one defendant to another
1 it was reasonable for the P to proceed against the successful D.
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2 Nationwide must have done something that made it fair to impose liability on it for the costs.
(eg falling of the wall.)

Bullock: P D1 D2P+D1(reimburse the P costs for the cost P paid for D1 because D1 succeed
and also pay Ps costs because of P succeed against D2) Sanderson: D2D1 D2P (D2 directly pay
D1 and P separately)
P prefers S. D1 prefers B coz at least he can get money.
When the court decides which one to order, have to consider 2 preconditions in para 15. But if D2
has no money, the judge knows that. The judge has to consider how innocent is the successful D. if
he is, will order B since at least he can get the money from P.

3.310 Costs and Self-Represented Litigants
p95 96
















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Chapter 5: Before a Civil Action Commences

Before launching a civil action, it is important for the prospective P to consider a number of issues:
z The cause of actions and remedies: Parties will need to evaluate the facts to determine
whether the facts give rise to a cause of action and the evidence that it required to prove the
claim.
z The disadvantage of litigation need to be carefully considered b4r commencing court
proceedings. Litigation is time consuming and costly. It also impact on business relationships
and can strain personal ones. Litigation has inherent risks, eg witnesses may not come up to
proof at the trial. Finally , there can only be one winner at the end of the litigation.
z Whether the party has the funds to litigate, the consequences may eventuate should the party
not succeed in the litigation are also important facts to consider. Even though the majority of
personal injury litigation is conducted for P on a speculative basis, the prospective P may still
need to fund the costs of disburses and if the prospective P loses the litigation then any assets
they have may be needed to cover the Ds legal costs.
z The prospective P will need to investigate whether the potential D has assets to satisfy any
judgment.
z The prospective P should investigate whether the dispute can be resolved without litigation.
z Jurisdictional issues.

Example
z P, a resident of NSW is badly injured by a car driven by the D, a Ukrainian, while both are on
holiday in Bourke (NSW)
z The P want to litigate the cause of action in NSW and the D wants to litigate it in Western Aus
were he has moved recently.
z If the originating process is served validly (under UCPR), the NSW court has jurisdiction.
Would it be willing to hear the claim?
z Much importance is given to P/s choice of forum. Traditional approach is to give effect to Ps
choice unless clearly unreasonable
z Factors to be considered eg where accident occurred, location of witnesses; parties economic
capacity legal aid available; whether resident in Aus. (Voth v Manildra)

5.210 Cross-vesting legislation
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z The legislation was in response to problems that developed where litigants were unable to
have all disputed issues determined in the one court, eg an incident could give rise to claims for
breaches of federal legislation and the CL. The prospective P, before cross-vesting legislation,
would be required to litigate claims in a State court and in the Federal Court.
z In Re Wakim the constitutional validity of the cross-vesting was challenged and part of scheme
was invalid - States cannot confer jurisdiction in on to federal courts although fed could be
conferred to states and states to states
z The cross-vesting scheme was amended after Wakim and now only provides:
Conferral of federal jurisdiction on state court
Cross-vesting of State jurisdiction among State courts
Transfer or proceedings between courts participating the scheme

Transfer Decisions
- relevant issues
whether related proceedings 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 in issue
whether transfer would be in the interests of justice
no appeal from a transfer decision can only get to an appeal court in another way eg judge send
matter to C of A on own motion; constitutional issue for appeal to HC
BHP Billiton v Schultz confirmed approach in Bankinvest AG
- Note private international law principles laid down for Aust in Voth v Manildra..
ie plaintiff can choose the forum
- no such bias in cross-vesting transfer decisions > BHP (majority held should be transferred to
South Aus..)

5.220 BHP Billiton v Schultz (transfer decision)
No appeal from transfer refusal, but BHP appealed directly to HC via constitution s73(ii) giving HC
power to hear an appeal from all judgments of SC.
Held: unanimously confirmed that Bankinvest, not Voth, is the test (ie does not prefer Ps choice) for
decisions concerning cross-vesting. By majority ordered transfer to SA SC.
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z Differences as between England and Oz. England-Spiliada test is whether another court is the
appropriate forum. Cf Oz Voth test is whether the Ps choice is a clearly inappropriate
forum. Gives emphasis to Ps right to choose the forum unless clearly inappropriate.
z The law is different in a cross-vesting context. Bankinvest said should be a nuts and bolts
Different issue- court is not refusing to hear a case, but deciding which is the best court.
z Ps choice maybe for good for minor reasons. May be balanced by defendants disadvantage. In
such a case, justice may not indicate a preference for the interest of either party. Often clear
but sometimes evenly balanced.
z Two reasons TJ refused transfer because Ps choice of forum is not lightly to be over-ridden;
and particular procedural adv of s11A.
z HC: first is misconceived - do not start with any presumption as to where the interests of justice
might come down.
z Second isnt relevant if adv to P is cancelled out by disadvantage to deft.
z All judges said TJ misapplied the law. Court divided 4/3 on whether should be transferred to
South Aus majority said should be SA.

Preliminary Discovery
- An order is usually made before the commencement of proceedings.
- The rules can enable the applicant to obtain an order for:
Discover to ascertain a prospective defendan
Discover to ascertain whether there is a cause of action
prior to UCPR, cannot find out the location of the defendant. Like in Equipment Pty Ltd case. If
applying UCPR however, the solicitor could be questioned in court to ascertain the location of the
vessel.
- the judge has discretion to make an order under Pt. 5.
- order sought by filing a summons with a supporting affidavit. The affidavit will need to satisfy the
court that
the applicant has made all reasonable inquiries
a person may assist with info or producing a document
5.240 UCPR
See p153-155 for statues
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Eg X wants to commence an action against a taxi driver Y for negligence causing injury. X knows the
rego no. of the cab, but dont know who was driving. What procedure can be used? - can use rule
5.2.

Roads & Traffic Authority of NSW v Aus National Car Parks Pty Ltd
- para 11, 12, 13, 14, 15, 16, 17
There are two threshold requirements:
1. The applicant must be unable to sufficiently ascertain the identity or whereabout of the
intended defendant despite having made reasonable inquiries
question of facts in all the circumstances
the availability of other means of ascertainment does not in itself make it unreasonable to claim
an alternative remedy under the rule.
cost, delay and uncertainty of alternative measures is relevant to the rules reasonable inquiries
components.
2. The applicant must show that the respondent may have information or may have had
possession of a document or thing that tends to assist in as certainly the identity or
whereabouts of the prospective defendant however it does not need to b

identify or whereabouts is given an extended definition in r5.1 to include: the name and the place
of residents, 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.
z There may be other means to find out the info, but might be costly and time consuming. And
maybe unreasonable.
What objections did the RTA make to providing the registration no. of the cars that had parked
without paying the fee?
para 23, 24, 27 30, 31
- para 23: the court agrees that the assistance hypotesised is assistance to the applicant as a
potential litigant, not assistance to the court per se.
- the possibility that additional evidence may be required to make out a prima facie case of
identifying the driver does not mean that the info in the Register lacks utility or forensic worth as
regards the drivers identity or whereabouts.
z The RTA claimed that providing registration numbers would not necessary provide the identity
of the drivers however it was a step forward
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z The cost and early involved in such a procedure for FOI request did not constitute reasonable
inquiries
z The RTA claimed that Freedom of Information Act way should be used however it would
provide more cost and delay
z RTA was ordered to provide preliminary discover

Panasonic Aus Pty Ltd v Ngage Pty Ltd
- para 20, 24, 25, 27, 28, 29, 30, 33, 34, 35, 37, 38(a), 39(b), 40, 41(c)
- All the plaintiff need to show is that the proceedings are likely to rest on some recognised legal
ground
- reasonable cause to believe that the applicant may have a right to obtain relief in the court, mere
assertion that there is such a case being insufficient.
- * questions has to be made:
1 the general flow of decision in Paxus Services Ltd and Aitken that whether there is reasonable
cause to believe that the applicant may have a right of action against the respondent.
2 the plaintiff has made reasonable enquiries, but despite these, it has been unable to obtain
sufficient info.
3 whether the prospective defendant may have possession of documents or things which can assist
the determination as to whether the p is entitled to make a claim for relief.
4 inspection of any such documents would assist the p in making the relevant decision.
this case fulfils 4, order made.
- * next questions:
1 whether the judge should exercise my discretion to make an order
2 whether the judge should make it subject to conditions
3 what order, if any, should the judge make for the costs of his application.

Para 38-41 Procedure of court making an order for discovery

5.350 Interim Preservation Orders
There a number of procedures to preserve rights and property which may be utilised before or after
an action is commenced
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They are
Orders for preservation of property: UCPR r 25.3
Orders for disposal of perishable or similar property: UCPR r 25.4
Orders for interim distribution of property or income surplus to subject matter or the
proceedings: UCPR 25.5-25.6
Orders for payment of share a fund before the ascertainment of all persons interest UCPR r
25.7
Freezing orders UCPR r 25.11
Search orders UCPR r 25.19
See p 174-176 for statutes

Freezing (Mareva) Orders

5.370 Jackson v Sterling Industries Ltd
- A Mareva injunction can be granted if the circumstances are such that there is a danger of the
defend , or a danger of the asset being removed out of the jurisdiction or disposed
within the jurisdiction
- The HC recognised the power of the courts to grant Mareva injunctions. The power derived from
the inherent power of the court to prevent an abuse of its own process
- The order in Jackson v Sterling had been made in the form of a security in the sum of $3mil in such
manner and form as the parties may agree or in default of agreement the court may provide
- When an order for the preservation of assets goes beyond simply restraining the def 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 intended to serve. That purpose is not to create security
for the plaintiff or to require a defendant to provide security as a condition of being allowed to
defend the action against him. Nor is it to introduce, in effect, a new vulnerability to imprisonment
for debt, or rather for alleged indebtedness, by requiring a defendant, under the duress of the threat
of imprisonment for contempt of court, to find money, which he may or may not have...to guarantee
to a plaintiff that any judgement obtained will be satisfied
- even in the absence of the provisions of s23 of the Federal court of Aus Act, the federal court would
have possessed power to make such orders in relation to matters properly before it.
- l
frustrate the process of the court by depriving the plaintiff of the fruits of any judgment obtained in
the action. It may be appropriate in a rare case that such an order requires the defendant actually to
deliver assets to a named person or even to the court i

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5.390 Cardile & Ors v LED Builders
Facts:
z LLu L P LLu C
(Cs) owned the shares in E, and while proceedings happening E paid Ds large dividends. Cs then
u M L
z LED sought Mareva orders and an accounting of profits against Cardiles and UM as well as E,
ings
Why did the HC uphold the Mareva order against the 3
rd
party?
z Prima facie case that payment of dividends to Cs made with view to limiting funds available to
satisfy any judgment for LED against E. As a result of payment of dividends to Cs E left with
insufficient funds to meet judgment debt
z 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 3
rd
party?
z Where assume other criteria present order against non-party may be appropriate when can
show 3
rd

rd
party holds, uses, has control or in possession
of assets of (potential) judgment debtor (D), or
z Some process available to judgment creditor (LED) as consequence of judgment where 3
rd
party
may be obliged to give property or otherwise contribute to funds or property of judgement
debtor to satisfy judgment.
What is criteria for getting Mareva order?
z Prima facie case against deft (good arguable case) &
z Real risk that D will deal with its assets in such a way that they will be dissipated or otherwise
attempt to make him judgement-proof (assets unavailable to satisfy the judgement), can show
ust from fact that
plaintiff has a prima facie case. The risk of dissipation need not be proved by direct evidence
inference may be sufficient, esp if allegations suggest fraud
z Generally against the defendant. But in limited circumstances may be against a related non-
party

5.400 Freezing Orders statues p185-187

5.410 Search Orders
Supported by SC Gen PN 13 A C
z Such orders authorise the seizure of documents and other evidence. Search orders are
obtained on an ex 1

z The purpose of a search order is to preserve evidence which is required to prove the
1


premises.

5.430 Austress Freyssinet Pty Ltd v Joseph
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z There are 4 preconditions to the making of an Anton Piller order (not examined if there were
more)
There must be an extremely strong prima facie case;
The damage potential or actual, must be very serious for the Plaintiff;
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
The harm likely to be caused by the Anton Piller order to the Defendants and their
business affairs must not the excessive or out of the proportion to the legitimate
u


z It frequently happens, in confidential information cases, that when access is granted to

relation to some specific documentation they need instructions from their client, application
can be made to the court to set-up a regime under which access to documents is no wider than
what the case demands only certain people can search the documents
z In this case, corporate officers of the plaintiff could not access, but certain lawyers of the
plaintiff could


PRACTICE NOTE NO. SC GEN 13
4. Ordinarily, a search order is made ex parte and compels the respondent to permit persons
ove
the things described in order. The order is designed to preserve important evidence pending the

applicant against the respondent or against another person. The order is an extraordinary remedy in

6. The search party must include an independent solicitor who will supervise the search and a
solicitor or solicitors representing the applicant. It may be necessary that it include other persons,
such as an independent computer expert, and a person able to identify things being searched for if
difficulties of identification may arise. Ordinarily, the search party should not include the applicant
or cers, employees or partners or any other person associated with the

7. The order should be clear...


Chapter 6: CAUSES OF ACTION AND PARTIES
6.20 Standing
z Standing in civil proceedings refers to the right of a P to be considered an appropriate party to
initiate a particular proceedings
z S
private in nature, such as acti 1
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doubt that a person who is injured in a traffic accident is the appropriate person to sue the
driver who caused his/her injuries
z Cases in which standing may be an 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..
See p195 197

6.5 Joining parties and causes of action
z The rules of joining parties (UCPR rr 6.19-6.28) and those for joinder of causes of action (UCPR
rr6.18, 6.22) are interrelated though different
z The requirements of the rules concerning joining of parties can be more demanding than those
for joinder of causes of actions and on this basis, logic would dictate that the decisions
concerning the causes of actions that are to be joined in the one proceedings are subject to the
decisions concerning the joining of parties
z There are powerful incentives to join all causes of action and parties in the one proceedings
that must be taken into account
z C
bringing of a single action rather than successive proceedings. The principles of res judicata,
issue estoppels, and what has come to be known as Anshun estoppels, all find their roots in
u ! C C
z Res judicata: the very right or cause of action claimed or put in suit has in the former

existence
z Issue estoppels: the purpose of some: other claim or cause of action, as state of fact or law is
alleged or denied the existence of which is a matter necessarily decided by the prior judgment,

z
Port of Melbourne Authority v Anshun Pty Ltd
z The issues was whether it was permissible to initiate a second proceedings on a different cause
of action against a party who had been defendant in the first proceedings. The cause of action
in the second proceedings had not been litigated in the first proceedings so there was no
apparent res judicata principle to prevent the second proceedings
z Mr. Soterales (the plaintiff) was injured by a load of girders being lifted by a crane. In the first
proceeding, the plaintiff sued the driver of the crane Mr Anshun (first defendant D1) and the
Port of Melb (D2) who hired D1 in a negligence cause of action. Both D were found liable (D1
90%; D2 10%)
z In a hiring agreement, Port of Melb Authority (D2) had agreed to indemnity Anshun (D1)
against any negligence actions, but the agreement was not raised in the first proceeding by
either defendant
z Anshun wished to initiate a second proceedings against Port of Melbourne Authority on the
contractual indemnity but the HC held that he was stopped from doing so. The majority of the
HC held:
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z 1
second action was so relevant to the subject matter of the first action that it would have been
(have estoppels for 2
nd
proceedings if 2
nd
rely on 1
st
)
z Anshun had not offered an explanation as to why the contractual indemnity had not been
A
proceedings might cause a conflicting judgment
z 8
not be pronounced on the same cause of action.

Gibbs v Kinna
z 1
st
action: employee brought action in Industrial Relations Commission against employer for
compensation for wrongful termination
z 2
nd
M C each of
contract. Magistrate dismisses claim on basis that it should have been joined in the 1
st
action
z Employee appeal (to district court) successful and employer then appealed to Court of Appeal.
C A
z TEST: Whether it was reasonable not to litigate the issues in the 2
nd
action in the 1
st
action. If
reasonable (there should be 2
nd
proceeding), Anshun not applicable.
z Here there would the same or substantially the same facts arise for consideration in both
z However, have to decide whether Anshun applies on all the relevant facts, including the
character of the previous proceeding. The scope of any pleading, the length and complexity
of any trial, any real or perceived difficulties etc
z Here, not unreasonable to defer making the later claim (reasonable to defer making the later
claim) :
The IRC did not allow any claims other than the statutory one. Although an amendment
was allowed, it would not have covered all the issues and would have delayed the rather
straightforward a k q
z Should only apply in the clearest cases


C A 8
Chilcotin P/L
x Purchasers of business sued vendors. Succeeded on breadth of contract (limited
damages)but failed tot prove misrepresentation of financial statement under S52
(dismissed) because court held P relied on the warranty not the financial statement
x P sued the accountants who had prepared the FS. Accountants sought and obtained (on
appeal) summary dismissal. Court of Appeal relied on Anshun attempting to litigate the
issues that were decided in or barred by the earlier proceedings
x What are the main points in the judgement?
x P could have included claim against accounts for negligent misrep. P knew that the figures
came from accountant and there would have been common issue of reliance, falsity and
damage so claims against accountants were so relevant to the subject matter of the 1
st

action that it was unreasonable for P not to rely on them in 1
st
action
x P was disappointed with outcome of 1
st
action so sued accountants over effectively the same
misrep in hope of a diff outcome
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x The possibility of inconsistent findings may be a reason for finding proceedings to be an
abuse of process. In Ribbon, the plaintiff had in previous proceedings failed to prove
reliance on certain accounts. The court said that it would be an abuse of process to bring
proceedings against a different defendant for the same loss based on reliance on the same
accounts; and
earlier accounts was mere camouflage () and in any event had no prospect of success
x Also see p 202

6.100 Redowood Pty Ltd v Link Market Services Pty Ltd (formerly known as ASX Perpetual
Registrars Ltd)
x 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.
x 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
x R is not seeking any different finding of fact, and the possibility that a different finding
adverse to R might be made by a different judge in a hearing between different parties gives
little support to Anshun estoppels.
x R is not alleging that there was a representation or assumption such that compliance would
8 M r alleging
that the negligence of ASX P cused it to act tain a contract and

x The respondent is not alleging any duty based on the Rights offer doc, but rather a duty
8s own dealings with the ASX p
x 1 8
joining ASX in the M proceedings was relevant to the question whether the present
proceeding is an abuse of process.
x At the heart of Anshun estoppels (whatever its doctrinal underpinning) is whether it was
UNREASONABLE that the action in the second proceedings was not litigated in the first

first proceedings has MOST INFLUENCE (i.e. of all the other factors, those that are of most
influence) determine whether second proceeding can be stayed. Here, there should be no
estoppel as its not unreasonable for Red not joining ASX in the previous proceedings.

6.120 Joining plaintiffs
- Plaintiffs can join in same proceedings where each has a right of relief arsing out of the same
transaction or same series of transactions and if there were separate trial there would be common
questions of fact or law
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If the court believes that the trial will be in convenient or cause delay, the court can make any order
it thinks fit.
Plaintiffs must join together by consent (UCPR r6.25)
If different people are entitled to join but a party does not join, that party can be joined as a
defendant
Plaintiffs are normally represented by same lawyers, but there can be discretion to allow parties to
have different lawyers

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.

6.130 Joining defendants
Defendants can be joined if the claim of relief against each arise out of the same transaction or
series of transactions and the clauses of action gives rise to a common question of law or fact
If court takes the view that it was reasonable for the plaintiff to have joined the defendants and
there was some conduct that contributed to the decision of the plaintiff to join the unsuccessful
defendant than there can be Bullock and Sanderson orders

6.140 UCPR
6.19 Proceedings involving common questions of law or fact
(1) Two or more persons may be joined as plaintiffs or defendants in any originating process
if:
(a) separate proceedings by or against each of them would give rise
to a common question of law or fact, and
(b) all rights of relief claimed in the originating process are in respect
of, or arise out of, the same transaction or series of transactions,
or if the court gives leave for them to be joined.
(2) Leave under subrule (1) may be granted before or after the originating process is filed.

6.150 W
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The meaning is not settled
Not limited to contractual transactions

Bendir v Anson
The word transaction, necessarily mean an act, the effect of which extends beyond the agent to
other persons.
1ransaction 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.
In Bendir the a single building that affects other buildings not lighting, better for judge to deal with
separate buildings though.
In Birtles ( broader interpretation than Bendir) allowed failed solicitor to join original defendants

Payne v Young
z Held there was a common question of law or fact, but the claims didnt arise out of the same
transaction/series of transactions
z Inspection fees due to inspection by different people
z Barwick: transactions of separate Ps with different Ds not a series of transactions. (cannot join
together to sue D)
z Mason: rule would have to read any instead of same series of transactions (cannot join
together to sue D)
to Mason, not different meaning between same and any
z Murphy: transaction should be read broadly. Series = set of similar things or events. (can join
together to sue D)
z If same deft? Barwick and Mason doubtful.
z But court can use discretion in Rule 6.22 to order separate trials.
z Nowadays the courts discretion is exercised to give effect to the overriding purpose.
z
6.200 UCPR 6.19 and leave to join
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.
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6.210 Dean Willcocks
para 17, 24, 25, 26, 27, 28, 29, 32, 33, 34
- r 6.22 of UCPR
In Payne v Young there was no common participation in the inspection services performed or liability
to pay
Therefore the fact that the liquidator claimed the transactions were linked together by unfair
preference was not enough to make them the same
Marina v Esanda Ltd - Example of people who wen to buy butter at a supermarket no same
transaction
The discretion to grant leave
Bishop: basic principle:
1 the costs and delay of the litigation
2 joinder is unlikely to result in unfairness to any party
3 inappropriate if represented by different solicitors, a single solicitor or firm of solicitors
4 impose an undue burden on the respondent.
Carter : one more principle:
1 most efficient use of the resources of the parties and also of the court: calculation of adv and
disadv.
Discretion should not be allowed if there would be unfairness to any party
If there is a single defendant and many plaintiffs, It would be unfair to deal in a single proceeding a
multitude of transactions
Where there is a single plaintiff but many defendants, there is a different and every defendant will
be answering to the same assertions
disadv to a D and the possibility of the unfairness may arise if:
P215
The court is to weigh up and advantages to the plaintiff and the disadvantages to the defendant and
also to consider cost advantages, the court allow joinder and split later

6.220 Cross claims
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CPA 21, 22
- D brings a cross-claim against the P it need not be related to or connected with the Ps claim or
arise out of the same transaction.
it is merely required to be 1 within the same parties to the original claim and 2 the court has
jurisdiction
- D can only bring a cross-claim against a non party if it is related to or connected with the subject of
those proceedings. And the non party is bound by the judgement between the P and D.
- Anshun principle applies in non party cross-claim.
- cross-claim is to be made within the time limit for a party to file a defence UCPR r9.1. usually 28
days after service the statement of claim or such time as the court directs if in proceedings
commenced by statement of claim. UCPR r6.10(a)

6.230 Changing parties
UCPR r6.19(2) provides for retrospective joinder (the court can grant leave to join P or D either at
the time of the proceedings or a later time). This means that leave can be granted to join parties
after proceedings have been commenced.
UCPR r6.24 also provides for joinder after commencement of proceedings.
UCPR r 6.28 concerns the date of commencement of proceedings for new parties who are joined
after the plaintiff originally initiated proceedings

New Idafe Inc v Barnard
K and B factions in a company
k 8
B claim that K does not constitute company
Court order K be plaintiff, sue B and company as defendants

Division 5 Joinder UCPR r6.24(1)(2)
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.

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The case extract of New 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
Relevant test for equivalent of r6.24 is 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 by any order
which may be made in the action.
An order which directly affects a 3
rd
persons rights or liabilities to a party should not be made
unless that person is also joined as a party.
matter of degree, ultimately judgment, having regard ot the practical realities of the case, and the
nature and value of the rights and liabilities of the 3
rd
party which might be directly affected.
Here didnt need them for damages, but did need them for injunctive relief. In order for the court.

Weber v Ankin
- para 2, 4, 5, 17, 63
u
The land might belong to the council (if its a public road, means affecting the interest of the council,
then it should be joined as the party)
The dispute affects all sides and the question must be solved with regard to whether or not the land
belonged to the council
Different considerations are applicable where it is the Ps application to add a party compared with
the application of an existing D add a new D and the P objects. When a P makes the application all
matters in dispute in the proceedings should not be interpreted as only those matters arising in the
existing pleading. (r6.24)
Eg in Qantas Airways Ltd v A F Little Pty Ltd 25 the plaintiff commenced proceedings against an
architect and an engineer claiming defective design of building. The P 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 P all matters in dispute in the proceeding should not be interpreted as
only those that existed between the P, the architect and the engineer.
If an application to add a new D but P does not wish to sue, the new D must be necessary for
complete adjudication of issues between parties
Will only be joined if a question relating to or arising out of the claim in the existing proceedings and
it is just and convenient t determine that question between the P, the existing D and the new D.

Joining causes of actions
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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 the parties ..UCPR r6.18
The requirements of UCPR r6.18 are relatively undemanding. Causes of actions can be joined in the
same proceedings as long as the capacity of the P and D are within on of ..
UCPR r6.22 allows the court to make separate trials
6.18 Joinder of causes of action
(cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1)
(1) In any originating process, the plaintiff may claim relief against the defendant in
respect of more than one cause of action in any of the following circumstances:
(a) if the plaintiff sues in the same capacity, and claims the
defendant to be liable in the same capacity, in respect of each cause
of action,
(b) if the plaintiff sues:
(i) in his or her capacity as executor of the will of a
deceased person, or administrator of the estate of a
deceased person, in respect of one or more of the
causes of action, and
(ii) in his or her personal capacity, but with
reference to the estate of the same deceased
person, in respect of the remaining causes of action,
(c) if the plaintiff claims the defendant to be liable:
(i) in his or her capacity as executor of the will of a
deceased person, or administrator of the estate of a
deceased person, in respect of one or more of the
causes of action, and
(ii) in his or her personal capacity, and in relation to
the estate of the same deceased person, in respect
of the remaining causes of action,
(d) if the court grants leave for all of the causes of action to be dealt
with in the same proceedings.
(2) Leave under subrule (1) may be granted before or after the originating process is
filed.
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6.350 Amendment powers
The court has power pursuant to s64 of CPA to amend pleadings or to grant leave to amend any
document in the proceedings even if the amendment would have the effect after commencement of
the proceedings.
Generally an amendment takes effect not from the date of amendment but from the date of the
original document which is amended.
However, an amendment has the effect of introducing a new P or D or a new cause of action the
date of such an amendment is taken to be the date on which the amendment is made subject to s65
of CPA.
The court also has the power to make an amendment that raises statute-barred maters namely
correcting a mistake in the name of a party, changing the capacity in which the P sues and permitting
the addition or substitution of a cause of action that arose after the commencement of proceedings.
Such amendment is authorised by s65 despite anything to the contrary in the limitation act 1969 if
the proceedings were commence b4 the limitation period expired.
See below for amending parties
6.400 order of decision

- Pleadings must contain facts, but material facts. Facts that support each of every element, eg the
breach of the terms of the contract, the terms of the contract, the contract itself.
- Material facts: r14.7 (cf SCR pt 15, r7; DCR Pt 9, r3)
Charlie Carter Pty Ltd v Allied Employees Association (WA)

Evidence
R14.7
- the means by which the material facts are to be proved is evidence. Eg testimony of witnesses
called at the trial.
- evidence should not be pleaded
- R14.9
- r14.19: A pleading may raise any point of law, but no bare assertions of law.
pleadings should not contain bare allegations or conclusions of law.
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eg if the P alleges in the statement of claim that the D negligently caused damages to the P and
does not provide any further info about the acts of negligence, a conclusion of law is being
presented as a material fact. In practice a statement of claim is more coherent if it identifies the
cause of action. However, identifying the cause of action..

Surprise UCPR r14.14
- 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: see UCPR r14.14
- 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.
- However obligations in regard to avoiding surprise do not relieve the P from fulfilling his or her
legal burden of proof.
- court: didnt have to plead defence becoz its a nota defence. P have the burden oto proof all
aspects. Cant say that the D alerted: surprised P that mechanical failure becoz P should have known.
Even though P and D had agreement in the beginning that they wont plead mechanical failure. The
documents alerted the P the totality of the claim and the p bears the burden of proof. It doesnt
release the P from proving the claim.
Chapter 8 Initiating Proceedings, Pleadings and Service

8.20 The Originating Process
- originating process as the process by which proceedings are commenced, and includes the process
by which a cross-claim is made. (s3 of CPA)
- Proceedings initiated by statement of claim or summons
- The date of filing originating process is conclusive for purposes of any limitation defences
- A statement of claim are usually where proceedings involve disputed contentions of fact and will
initiate pre-trial and trial process
- A summons on is usually on a question of law, no substantial disputes of fact
- UCPR r 6.3 prescribes when a statement of claim must be used
- UCPR r6.4 prescribes when a summons must be used
- UCPR r 6.5 allow correction by the court if the wrong originating process is used. (eg should use
statement of claim instead of summons)
- UCPR r 4.2-4.9: contents and appearance of the originating process have specific requirement.
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- The OP should specifically state the relief claimed and question to be determined by court.
- Jv L&A Servicdes Pty Ltd: court refused to grant anonymity to the P coz he contracted the HIV virus
b4. sometimes though interest of P is important, the court has to balance the interests of a party
with other factors and interests of others as well.
8.30 s347 of Legal Profession Act 2004 (NSW) places obligations on lawyers
-(2) a law practice cannot file a claim or defence unless it 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 defence has reasonable prospects of success.
- (3)
- (4)

8.40 OP must be served on each D. (UCPR r6.2(3)

8.50 OP in SC , DDT or LC is valid for six months. DC is 1 month unless outside Aus which is 6 months.
A failure to serve does not prevent P from commencing fresh proceedings by filing another OP

8.60 Appearance
- After OP has been served the D must file a notice of appearance. (UCPR r6.9)
- entering an appearance can be done by a solicitor or by the D in person. If corporation, done by an
authorised officer. (UCPR r7.2)
- appearance must be entered within 28 days after service of the statement of claim. For summons,
the appearance must be filed on or b4 the return date stated on the summons.
- a notice of motion (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 D in respect
of the subject mater of the proceedings. (if D wana objects)
- a party may not take any step in the proceedings without entering an appearance.
- UCPR 12.5: allows a defendant to seek leave to withdraw an appearance. However if not by
mistake but competent legal advice, leave would be refused.
- UCPR 12.6: allows the D to seek leave to withdraw any matter that is contained in a defence.
8. 70 Pleadings
UCPR indicates that pleading includes a statement of claim, defence reply and any subsequent
pleading for which leave is given under PT 14, but does not include a summons or notice of motion
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Formal exchange of documents
There is incentive to respond, if defendant does not respond or deny, hey are deemed to be
admitted. UCPR r14.26
After the defence has been served the last unanswered pleading is deemed to be denied unless
further pleadings are served UCPR r14.27

8.80 Group (Australia) Ltd v Karabassis
There is a bona fide dispute about what constitutes the agreement
entirely not clear what documents comprise the agreement
The only prejudice to the plaintiff was costs
Hence withdrawal of 1
st
Ds admission allowed

8.90
- Once an allegation is made and the allegation is den
- Relief is confined to that available on pleading to secure a partys right to this basic requirement of
procedural fairness unless the parties have deliberately chosen some different basis for
determination of their respective rights and liabilities Banque Commerciale SA v Akhil Holdings Ltd

8.100 ASIC v Rich
The plaintiff must state the case to be met, this ensures procedural fairness (pleadings)
However, there are times when the plaintiff and raise new issues, such as to attack a defence
However, the attack cannot be relied on for an additional ground for remedies

8.110
Response by defendant is the defence
The defendant might also make a cross-claim or set-off Plaintiff can answer defence with reply or
cross-claim with defence to cross claim
Any further pleadings require leave of court

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8.120 UCPR
Pleadings see 278-279

8.140 Material Facts
Facts that are critical to supporting each of the elements of the cause of action.

Charlie Carter Pty Ltd v Allied Employees
- Bruce: insufficient merely to allege in general terms of a cause of action. The cause of action must
be alleged with particularity. s
- The sufficiency of pleading may be judged:
1 by reference to necessary condition that it disclose a reasonable cause of action
2 secondly be reference to the requirement for sufficient particularity that respondents know in
advance the case they have to meet
There was no material facts, it was just a conclusion drawn from facts which were not in statement
of claim

8.160 Evidence
the means to prove material facts is evidence it should not be pleaded

8.170
No bare assertions of law. Pleadings should not contain bare allegations or conclusions of law:
1 Kirby v Sanderson Motors Pty Ltd
Material means material to be claim
Material facts must be stated in a way that a D understand the materially of the facts
2 Markisic v Department of Community Service of NSW (No 2)
Same stuffs

8.200 Surprise
If unpleaded allegations are raised, surprise is result
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A party is not allowed to prove facts that are not properly alleged in pleadings, esp if unfair to D
However, the plaintiff must still fulfil legal burden of proof

Kasupene v Ajax Foundry Pty Ltd
- Parties agreed that there would be no pleadings on mechanical failure due to poor maintenance
- P failed on other grounds, now claims because accident did not happen because of other grounds,
it must be because of mechanical failure due to poor maintenance
- The pleadings did not include this so this claim can no longer be made, the P must always prove his
case, no deductive reasoning

8.200 Trial by ambush not OK

8.230 Glover v Australian Ultra Concrete Floors Pty Ltd
para 53, 54, 61
During leadings, defendant gave impression it would only deny negligence
P on how he got injured
1
Defendant said not admitted means giving the P impression that the issue that not admitted is
not an issue to dispute. The court said this is surprise.
Defendant has to plead every issue in statement of claim. If there is an issue not plead, then it will be
treated as admitted.

8.240 Verification
- verifications are merely considered written identification and communications of the extent of the
Ps claim.
- UCPR r 14.23 requires party pleading to be verified by affidavit.
Pascoe in his capacity as liquidator of Charter Workforce Pty Ltd: the purpose of pleadings is to
define the issues for the trial. D: has to depose allegations of facts to be true, but not necessarily to
depose the facts in SOC which admitted to be true.
8.260 Particulars
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Particulars are details of material facts

8.270 UCPR
See p 286 287
Particulars must be given so the opposite party and identify the case the pleading requires him to
meet

They define the issues and enable parties to know what evidence they need, this avoids surprise and
to keep case within due bounds Bailey v Federal Commissioner of Taxation
Bailey: functions of particulars.
8.290
Particulars are not pleadings, do not need to respond, they also do not cure defective pleadings

A A 8 A n8MA
- material facts has two purposes while particulars has one only. MF: inform the other party and
provide a basis for determining whether there is cause of action. Particulars only has the former
purpose.
- Particulars may be used to determine if the statement of claim contains all the material facts.
However it does not correct omission of material facts from statement of claim as a whole.

8.310 In practice defective pleadings are often cured by delivery f particulars, usually voluntarily
because an order from the court to provide particulars would very likely result in a costs order

8.320 BWK Elders Australia Pty Ltd v Westgate Wool Company 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.
the courts focus has been upon ensuring the case is identified with clarity, so that the opposing
party knows the case to be met and the issues for trial are identified.
the focus upon case management, to ensure the efficient and fair conduct of proceedings, has
also led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring
that, in substance, the objectives of pleadings are fulfilled.
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Particulars are details of the material facts on which the party relies in his or her pleadings. They
limit

8.330 Particulars and evidence
Allianz Australian Insurance Ltd
para 18,
Particulars I different from disclosing the evidence by which the case is to be proved.
The purpose of particulars.
It all depends on what is necessary to guard the other party against surprise

[8.340] Provided the other party is not treated unjustly, in practice latitude is given to adduce
evidence beyond the boundaries identified by the particulars

8.350 Douglas v John Fairfax & Sons Ltd
- Where a party seeks to lead evidence in support of his pleaded which is outside the particulars, it
judge is to consider if the other party had sufficient warning
8.360 Dare v Pulham
- The relief granted must be founded on pleadings, not particulars
UCPR r15.1: merely states that a pleading must give such particulars s are necessary to enable the
opposite party to identify the case that the pleading requires him or her to meet.

Striking out pleadings
r14.28 p 291:
- When no reasonable cause of action
- tendency to cause prejudice, embarrassment or delay
- abuse of process
Markisic v Department of Community Services of NSW
- supports r14.28
Pleadings that cause prejudice, embarrassment or delay
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Priest v NSW
Embarrassment in this context refers to a pleading that is susceptible to various meanings, or
contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which
irrelevant allegations are made that tend to increase expense. Not exhaustive.
A pleading may be embarrassing if it does sufficient facts but are hard to piece together

8.420 Pleadings that do not disclose a reasonable cause of action
Silverside Superfunds Pty Ltd
The P only need to establish that the cause of action is arguable upon the facts alleged
It is not essential that the P be able to establish that, such a cause of action must exist, or succeed


8.430 Service
Service is used for methods of alerting people that there are proceedings against them
The original process and copies are filed the court registry and stamped with court seal
The original is left with registry and copy is served on the defendant
Service is important because:
- Procedural Fairness
- l
- A copy of OP is served personally on D coz the main purpose of service is to inform the party. The
person serving then completes an affidavit attesting that D has been served UCPR r 35.8 identifies
the details required in affidavit. The person making the affidavit has to be over 16.
- After OP, if D doe not filed appearance, P may obtain a default judgement
- Service that is not effected under UCPR is irregular and default judgment is liable to be set aside
unless the court overlooks the irregular service

8.440 CPA discussed in 9.160
63 Directions with respect to procedural irregularities
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8.460 UCPR
10.1 - A party that files a document must as soon as practicable serve copies of the document on
each other active party p 295

8.480 UCPR
Various ways of serving a document 295

8.490 Personal Service
The OP must be served to defendant personally
After OP other documents do not need to be personally served

8.500 UCPR
10.20 Personal service requi red only in certain ci rcumstances
(cf SCR Part 9, rules 1 and 2; DCR Part 8, rule 3; LCR Part 7, rules 3 and 20)
(1) Any document required or permitted to be served on a person in any proceedings may be
personally served, but need not be personally served unless these rules so require or the court
so orders.
(2) Except as otherwise provided by these rules:
(a) any originating process, and any order for examination or garnishee order, in proceedings
in the Supreme Court, the Land and Environment Court, the District Court or the Dust
Diseases Tribunal must be personally served, and

8.510
The defendant does not have to reside permanently in the jurisdiction to be validly served.
The court has discretion to decline to proceed if it decides that it is a clearly inappropriate forum.
Personal service can be effected by:
1 If the person being served doe not refuse to accept the document (valid in Ainsworth where it was
given to the representative standing next to the D and saying tat wed better look at these)
2 If the C
presence; and the nature of the document explained to the person (Graczyk: push under a locked
door, Re Hudson: attachment document to the front of a locked door while advising the D that this
was occurring, Lawindi: nature of the document is clear is ok, the rule is not very demanding)
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the person served need not be informed of the nature of the document totally (Rogerson)
if the person knew the nature of the document from the past history in relation to a matter,
service would be valid despite the fact that the nature of the document was not clearly stated by the
process server. (Taylor )
3 If there is doubt, an application for informal service can be made. (UCPR r10.14(3))

8.520 Service constituting personal service
There are alternative forms of service that are taken to constitute personal service on various
entities:
- UCPR r 10.9 provides for service on defendants operating under an unregistered business name
- UCPR r 10.10 provides for service on defendants operating under a registered business name
- UCPR r 10.20 provides for service on a partner in a limited partnership
For these, it is enough to leave a document with a person over 16, or sending document by post,
addressed to defendant
- UCPR r10.22: concern personal service on a corporation and it can be effected by personally
serving a principal officer of the corporation or by serving the document on the corporation in
another manner prescribed by law. Eg s109X(1)(a): a document may be served on a company by
leaving it at or posting it to the companys registered office.

8.530 UCPR
10.26 Personal service on person who ~keeps house
(1) If a person keeps house (that is, remains in premises to which a person attempting service
cannot lawfully or practicably obtain access), the person attempting service may serve the
document on the person keeping house:
(a) by doing one of the following:
(i) placing the document in the mail-box for the premises,
(ii) affixing the document to an outer door of the premises,
(iii) if the person attempting service cannot lawfully or practicably obtain access to any such
mail-box or door, affixing the document to some part of the premises, or to some fence or
wall surrounding the premises, as near as practicable to the principal door or entrance to the
premises, and
(b) within 24 hours after doing so, by posting a notice to the premises, addressed to the
person keeping house, informing the person of the fact that the document has been so placed
or affixed.
(2) Service in accordance with subrule (1) is taken to constitute personal service.

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5.540 Service by agreement, acknowledgment or undertaking
- has to pertain the mode of service unlike Mondial Trading Pty Ltd
10.6 Service in accordance with agreement between parties
(1) In any proceedings, any document (including originating process) may be served by one
party on another (whether in New South Wales or elsewhere) in accordance with any
agreement, acknowledgment or undertaking by which the party to be served is bound.
(2) Service in accordance with subrule (1) is taken for all purposes (including for the
purposes of any rule requiring personal service) to constitute sufficient service.

8.560 Acceptance of service by solicitor
10.13 Acceptance of service by solicitor
(a) any originating process, or
(b) any other document required or permitted to be served in any proceedings, but not
required to be personally served,
that he or she accepts service of the document on behalf of any person, the document is taken
to have been duly served on that person on the date on which the note is made or on such
earlier date of service as may be proved.

8.580 Substituted and informal service
- UCPR s10.14
Substituted service orders are made when D has been evading service. Two matters are to be
satisfied:
1 1 M
service would be futile ()
2 1
Supported by affidavit evidence

Munkarra v Fisher
x 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
x A search might be useful for supporting the efficacy of the alternative steps

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8.600 Bulldogs Rugby League Club Ltd V Williams
Substituted services orders had been made before when it was shown that personal service had
been unsuccessful
However, during the course of substituted service, the process server found the first defendant and
threw the documents in his direction. The documents were picked up and handed to the first
defendant. This was enough for personal service

8.610 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 D
has been taken to be served on a date specified by the court.
- satisfying the court that the D has been accorded procedural fairness and that the proceedings
have in fact been brought to his or her attention is very important.

8.620 Service beyond the jurisdiction
At common law, in the absence of statutory authority, service
jurisdiction hence NSW OP cannot be served outside NSW

8.630 Service outside NSW but within Australia
Usually effected in accordance with Service and Execution of Process Act 1992 (Cth) (SEPA)
govern by SEPA
- SEPA s15 p303
- The originating process should bear an endorsement () that the P intends to proceed under
SEPA: UCPR r 10.3(3). A notice to the D pursuant to s16 of SEPA should be attached to the originating
process. This notice encourages the D to seek legal advice and sets out his or her rights.
if the issuing court is SC, can apply to another state SC if the court thinks is more appropriate.
if the issuing court is not SC, the D can apply the issuing court to have the proceedings stayed.
- 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 places of residence of the parties and of
the witnesses likely to be called in the proceeding; the place where the subject matter of the
proceeding is situated, the financial cirm of the parties, so far as the court is aware of them; the law
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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 in the place of issue.
- the D has 21 days to make such an application or file an appearance: s17 of SEPA. The appearance
must state an address within Aus for service: s18 SEPA.
8.660 Service overseas: UCPR Pt 11
- substituted service of a person outside Aus may be permitted instead of personal service only if the
requirements of SCh 6 can be fulfilled.
- if the proceedings are commenced in the DC and a subsequent overseas 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 DC to the SC are to be made in accordance with UCPR r44.7.
- UCPR pt 11 provides the rules for service overseas, not interstate. There are two 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 D files an appearance. Serving
pursuant to Div 2 is cumbersome and frequently slow. Division 1 is more often used and this will be
the focus of discussion here.
- UCPR r 11.2 indicates that originating process may be served outside Aus in the cir referred in Sch6
- no leave is required to serve the originating process however if the D does not enter an appearance,
leave of the court to proceed is required: UCPR r11.4. 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: UCPR
r11.6.

- UCPR Sch 6 (p304-305)
Australian Iron & Steel Pty Ltd
- not sufficient that only one cause of action falls within one or more of the foregoing paragraphs of
Sch 6.
- whether the co-defendant is property joined requires reference to the rules and principles
concerning joinder: UCPR Pt 6 Div 5 and Ch 6 cause of action and parties.

Laurie v Carroll
- an order allowing substituted service was set aside becoz when it was made the D had left the
jurisdiction and the cause of action did not fit within the rules for service outside the jurisdiction. An
order for substituted service can be validly made if the cause of action is such that the originating
process is allowed to be served outside the jurisdiction.
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- Leave of the court is not required to serve outside Aus however once the D has been served, leave
of the SC is required in order to proceed against the D: UCPR r11.4.
8.690 UCPR
11.4 Leave for plaintiff to proceed where no appearance by defendant
(1) If originating process is served on a defendant outside Australia, and the defendant does
not enter an appearance, the plaintiff may not proceed against the defendant except by leave
of the Supreme Court.
(2) A motion for leave under subrule (1) may be made without serving notice of motion on
the defendant.

8.710 Agar v Hyde (whether an assessment of the strength of the Ps case is a relevant matter to be
considered when determining whether leave to proceed will be given.
x Both appeals are brought by defendants who were served outside Aus with a statement of
Claim by which the plaintiff claim damages they suffered in rugby match in NSW
x UCPR r11.2 and Sch 6 of the permits the service of originating process outside Australia only
in specified cases. If defendant or as where the subject matter of the proceedings is a
particular kind.
x OP might be served outside Australia because:
The proceedings are founded on ca cause of action arising in the State
The proceedings are founded on a tort committed in the State
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
The proceedings are properly brought against a person served to be served in the State
and the person to be served outside the State is properly joined as a party to the
proceedings
x Court can decline to exercise jurisdiction because:
That the claims made are not claims of a kind which are described in UCPR r 11.2 and
Sch 6
That the court is an inappropriate forum for the trial of the proceedings and
That the claims made have insufficient prospects of success to warrant putting an
overseas D to the time, expense and trouble of defending the claims.
x 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
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Aus fall for consideration. Would only grant application to set aside originating process
served outside Aus if there was a high degree of certainty that the claim would fail if it when
to trial in the ordinary way. This is the same test for granting summary judgment.
8.730 UCPR (P309-310)
11. 7 - Setting aside origination process served outside Australia
12.11 Setting aside origination process

8.740
Whether court is an inappropriate forum is determined by test in Voth v Manildra Flour Mills


8.770 Garsec v His Majesty The Sultan of Brunei
Voth v Manidra Flour Mills Propretary Ltd:
x 1
forum elsewhere, four principles identified
A plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to
insist upon its exercise
The court can dismiss proceedings that are oppressive, vexatious or an abuse of process
and to avoid injustice between the parties
The mere fact that the balance of convenience favours another jurisdiction does not
justify a dismissal
The jurisdiction to grant stay or dismiss is to be exercised with great care
x The claimant brought proceedings in NSW to prevent the defendant from enjoying certain
defences in Brunei this was oppressive
x See p312 for definitions

Chapter 9: Amendment mistakes and Adjournments
9.10 Introduction
The court has wide powers to make amendments and these powers can be exercised at any stage of
the proceedings
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The court has limited power to make amendments that allow matters raised that otherwise would
be statue barred
The court can cure irregularities, but not nullities.

9.20 Amendment
A plaintiff may amend a statement of claim without leave within 28 days of filling unless a date has
been fixed for trial.
If a plaintiff amends a statement of claim within 28 days, a defendant may amend defence within 14
days of service of amended statement of claim. UCPR 19.1
An amendment can include an amendment that adds or removes a party r19.2- the date of
commencement of proceedings for added party is date on which amended document is filed r6.28
S64 of CPA governs amendments outside the 28day period and if leave is required applications
should be made by notice of motion under UCPR pt 18.
any prejudice is relevant consideration when determining whether to permit or refuse an
amendment.
R42.6 creates a presumption that unless court orders, the parties has to pay the cost of apply
amendments occasionally.

9.30 UCPR

19.1 Amending a statement of claim
(1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the
date on which it was filed, but, unless the court otherwise orders, may not amend it after a
date has been fixed for trial.
(2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant
has filed a defence, the defendant may amend his or her defence at any time within 14 days
after service of the amended statement of claim.
(3) A plaintiII`s right to make an amendment under subrule (1) is not aIIected by any
amendment the plaintiff has made under rule 7.22.

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.
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(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.

9.50 CPA
S 14 Dispensing power of court
S 16 Court can give directions for any practice where there are no UCPR or practice notes
S 61 Court have power to give directions for speedy determination of real issues between parties
See 321 -322 for statues

9.60 Rayscan Management Pty Ltd v Siv Nandan Moodliar
Sections 56 to 60 of CPA now consider the degree and type of injustice which each party may suffer
as a result of the order sought, and to do so in the context of other facts, such as the elimination of
delay and the desire to ensure that disproportionate costs are not incurred in the proceedings
- Nicholas J at first instance had refused to grant leave to the applicant to replead and exercised the
discretion solely on the basis..
refuse to grant based on that too many amendments were allowed and its too late.
- held that the trial judge was correct to do so.

9.70 Section 64(3) provides power to amend even though it would have effect of adding or
substituting a cause of action that had arisen after the commencement of proceedings

9.80 Hill v Reglon Pty Limited
para 128, 129
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S64(1) CPA provides that a court may order a document in the proceedings be amended at any stage
of proceedings
(3) An amendment may be made even if adding or substitutes a cause of action that has arisen after
the commencement of proceedings.
Should be amendment be made for the purposes of adding a cause of action, then the dates of
commencement of proceedings is relation to that cause of action is the date of the amendment

9.90 s64: Effective date of amendment
x Generally an amendment takes effect from the date of the original document that it
amends.
x However if the amendment has effect of adding or susbituting a cause of action which has
arisen after the commencement of proceedings, the date of commencement in regard to
that cause of action is taken to be date on of amendment
x However position is different is s65 is engaged
x Eg contract with builder March 09 SOC: breach of contract. A month goes by, unhappy that
theres just breach of contract. Also unhappy that the wall breaks down and hurts something
precious. The negligence action occurs on May 2009. Want to amend SOC to add in this
s64(3) says I can. Breach of contract action commenced on March 09 (initially field),
negligence action by virtue of s64(3) would commence on May 09 where the amendment
takes place. This is important becoz of Statute of Limitation. (Contract action is 3 years) Date
of which the commencement of action would be conclusive in terms of statute of limitation.
That added cause of action would say to have commenced on the date of amendment. But it
will be different if amend under s65.

Amendment affecting limitation periods

9.105 CPA 65
65 Amendment of originating process after expi ry of limitation period
(1) This section applies to any proceedings commenced before the expiration of any relevant
limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such
proceedings may, with the leave of the court under section 64 (1) (b), amend the originating
process so as:
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has,
since the proceedings were commenced, become entitled to bring and maintain the
proceedings, or
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(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of
the amendment is to substitute a new party, being 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, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new
cause of action, being a new cause of action that, in the court`s opinion. arises Irom the same
(or substantially the same) facts as those giving rise to an existing cause of action and claim
for relief set out in the originating process.
(3) Unless the court otherwise orders, an amendment made under this section is taken to have
had effect as from the date on which the proceedings were commenced.
(4) This section does not limit the powers of the court under section 64.
(5) This section has effect despite anything to the contrary in the Limitation Act 1969 .
(6) In this section, "originating process", in relation to any proceedings, includes any pleading
subsequently filed in the proceedings.

9.110 If the amendment is made under s65, the amendment is taken to have been made on the date
the proceedings were commenced relation back principal

9.130 Air Link Pty Ltd v Paterson (No 2)
The rule in Weldon v Neal has been destroyed
t had been established that a court permitting an amendment had power to displace the application
of the relation back principle by ordering that the amendment be dated from a date other than the
commencement of the proceedings. Weldon v Neal. In McGee, this court held that the rule in
Weldon v Neal had thereby been totally destroyed. So long as the amendment substituting a new
cause of action 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.
para 72, 74, 75, s65(2)(b)
n
justice of the case required it


9.140: s65 - Mistake in the name of a party

9.145: Greenwood v Papademetri
x If a party can be joined under s65(3) the amendment is taken to have had effect from the
date on which proceedings were commenced
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x 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 mistake that, in the cours opinion, in neither misleading, not such as to
cause reasonable doubt as to the identity of the person intended to be made a party. (no
argument raised in this case though)
Even though the language is same in the legislation, the court still has the discretion to decide
whether to grant the amendment. (no argument here)
* the argument here is whether power existed to make the joinder order.
x Bridge Shipping Pty Limited v Grand Shipping SA (1991):
The court can correct names if the replacing party answers the same description
Example: The person I wish to substitute as party is that entity which i identified by
certain inherent properties peculiar to it but whose name i mistakenly believed was X
Application failed as originally wanted to sue carrier by inserted name of owner of
vessel. Original claim did not state wished to sue carrier.
the entity intended to be sued is that entity with the properties described in the statement of
claim.
If P wishes to sue owner of a particular piece of property and sued A in life that A was owner, when
A 8 8
mistake in the
The Statement of Claim originally filed proceeded on basis that D had three separate capacities
owner, occupier and person carrying building work D can be substituted with a person who fits this
description
- result: no adding of party, different from the mistake in the name of a party.
9.150 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.
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, judgment 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 reason 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:
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P sued his solicitor. A statement of claim was filled but not served before the expiration of a
limitation period
Johnstone DCJ held that a failure to serve within the time prescribed are failures to comply with
rules of court. They are treated as procedural irregularities that do not invalidate the proceedings,
and may be cured by s63 CPA
See P 344 for statue

9.180 Deveigne v Asker
Nullity and irregularity
x A proceeding that is entirely forbidden or excluded by the rules or is not permitted at all at
the time mistaken is a nullity or an irregularity (Plowman)
x If the other side waived the flaw in the proceedings or took some fresh step after knowledge
of itif the other side could complain despite the subsequent step, the flaw was a nullity
MacFoy
x The test is: is there jurisdiction at the time to do the act impeached, even though prior
precautions for the protection of a party, or other formalities, are directed; or is the act
complained of, in the circumstances entirely unprovided for or prohibited at the time it is
done? (Plowman)
x A nullity is defect that is fundamental, the test in MacFoy is useful - Re Pritchard

Chapter 10: Concluding proceedings before trial

10.20 Summary Disposal
Summary disposal refers to processes of concluding proceedings before trial. Court orders setting
aside the originating process pursuant to UCPR r 12.11 are an example.

10.30 Default judgment
A default judgment is a judgment entered in accord with the rules of court

10.40 Setting aside a default judgment
x UCPR r 36.16(2)(a) and (b) provides the court with power to set aside default judgment
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x The defendant must explain the delay in filing a defence and show that there is a defence on
the merits

10.50 Borowiak v Hobbs
Party did not file defence and a default judgment was obtained
- para 26, 37, 38, 41
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 insurer had own litigation
department but did nothing
Courts could not be expected to favourably view an application in circumstance where the applicant
takes such an approach

10.60 Summary judgment
UCPR r 13.1 allows plaintiff to seek summary judgment against a defendant who filed a defence that

of the damages claimed
An application under UCPR r 13.1 can be made for the whole or part of the judgment claimed by the
plaintiff. It must be supported by affidavits

10.80 Summary dismissal
x UCPR r 13.4 allows the defendant to seek an order that proceedings be dismissed on the
basis that they are frivolous or vexatious, or there is no reasonable cause of action disclosed,
or the proceedings are an abuse of process
x Frivolous not worth serious attention
x Vexatious cannot succeed or is initiated to waste time
x Abuse of process brought for ulterior purpose
x Van Der Lee v NSW:
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If A has reasonable grounds to sue X, who has few assets, and believes that Y who as
extensive assets, may feel obliged to satisfy the judgment against X, and sues X if
predominant purpose of recovering from Y, it is not an abuse of process.
The question is if the purpose is for gaining a collateral advantage or a purpose that
proceeding were designed

10.90 Want of prosecution

10.95 UCPR
12.7 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.

10.120
An order for summary dismissal, where there has not been a hearing on the merits of the claim does
not ordinary prevent the plaintiff from issuing fresh proceedings or claiming the same relief in fresh
proceedings. However the defendant may raise defence of res judicata or issue estoppels in fresh
proceedings.

10.130: CPA
91 Effect of dismissal of proceedings
(1) Dismissal of:
(a) any proceedings, either generally or in relation to any cause of action, or
(b) the whole or any part of a claim for relief in any proceedings,
does not, subject to the terms on which any order for dismissal was made, prevent the
plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings.
(2) Despite subsection (1), if, following a determination on the merits in any proceedings, the
court dismisses the proceedings, or any claim for relief in the proceedings, the plaintiff is not
entitled to claim any relief in respect of the same cause of action in any subsequent
proceedings commenced in that or any other court.

10.140 Discontinuance
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The plaintiff can file a notice of discontinuance with the consent of the other active parties or by
leave of court UCPR r 12.1

10.160 Security for costs
The court can order s plaintiff to
and can order stay of proceedings until the security is given

10.170 Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd; Brooks v Clark Rubber Franchising Pty
Ltd
An application for security for costs must be made promptly
It is unfair to lull a plaintiff into a situation where it invests a large sum of money in preparation a
hearing and then frustrate the expenditure by a last minute application

10.180
There is a non-absolute rule that a natural person who sues will not be ordered to give security costs
The purpose of security for costs is to protect an order for costs awarded to defendant from being
frustrate by inability of plaintiff to satisfy it
Therefore there is a balancing process

Idoport Pty Ltd v National Australia Bank Ltd
The court is to take into account:
Applications must be brought promptly
The strength and bona fides of the applicants case
Whether the applicants impecuniosity was caused by conduct subject of the claim
Whether the application is oppressive being used to deny an impecunious applicant a right to sue
Whether the if there are person standing behind company who are likely to befit from litigation and
are willing to provide necessary security
Security will only ordinarily be ordered against a party who is in substance a plaintiff and an order
should not be made against parties who are defending themselves and his forced to litigate
The mere fact that the plaintiff in impecunious does not provide a gateway into security for costs,
however for a corporation it does
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The mischief at which the provision is aimed is obvious. An individual who dconducts his business
affairs by medium of a 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.
para 61, 62
Once the defendants have established the evidentiary burden, the plaintiff must show that the
discretion ought not be exercised

10.210 UCPR
42.21 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, 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. Ior the deIendant`s costs oI 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 plaintiII`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.

10.220 CPA
67 Stay of proceedings
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Subject to rules of court, the court may at any time and from time to time, by order, stay any
proceedings before it, either permanently or until a specified day.

10.230 Morris v Hanley
- para 9, 10, 21, 22, 23, 24, 42
x The fact that the plaintiff moved to another state is no reason by granting security for costs
unconstitutional perhaps not territory
x The court is to consider
W
Whether the plaintiff has a reasonably good prospect of obtaining the orders he or she
seeks
Whether an order for security would bring proceedings to an end
Whether the plaintiff has a want of assets and how this was brought about
Whether there is anyone standing behind the plaintiff who might benefit from the
action but who is unwilling to contribute to risk involved in the action
The question of delay
This list is non-exhaustive
x Here the plaintiff will have difficulty in succeeding, the defendants are not a multi-national
corporation and there is evidence that costs have already been incurred that are over
$128,000 and is likely to require a further $150,000. The action is partly to harass the
defendants and the defendants may be bankrupted even if they win
x Hence security for costs was ordered

Appeal:
Appeal successful
1
of very limited assets

10.250 Incentives to Settle
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x The UCPR offer of compromise procedure and the general law in the form of Calderbank
letters are designed to encourage a reasonable approach to settled by both parties
x The offer to settle must be genuine and if the offer is unreasonably rejected costs
consequences can follow
x C
costs
x The cost consequences of rejecting a Calderbank letter is in general discretion of court
rather that UCPR rule hence lacks certainty
x S 73 allows the court to determine in particular proceedings any dispute as to whether there
has in fact been a compromise or settlement before there was uncertainly whether spate
proceedings were needed see p385 for statue


10.270 Offers or compromise under UCPR
x Any party by notice in writing may make an offer to any party to compromise on any claim in
the proceedings
x The offer is taken to have been made without prejudice unless notice indicates otherwise
x The circumstance in which the court at the time of trial may become aware of the offer of
compromise if it is not accepted are restricted
x A plaintiff may not make an offer unless the defendant has been given sufficient
documentation to enable to defendant to fully consider the offer
x There can be time limits
See p386-388 for statues
- UCPR Pt 42 Div 3 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 winner pays the losers costs.

- r42.14(1)(2) (P made the offer)
P D $1million. P makes Ooc to D on 12
th
March 2009 settle for $500 + costs
refused by D and P gets judgment no less favourable than offer ($550)
P gets costs on ordinary basis from commencement of proceedings to 12
th
March
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P gets costs on indemnity basis from 13
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March till time of judgment.
( P gets a bonus)

- S42.15(1) (the D made the offer)
P D $1 mil
D makes OoC to P on 12
th
March $500 + costs
P refuses and P get judgment as favourable or less favourable as offer ($450)
unless the court orders otherwise: P get costs on ordinary basis up to the 12
th
March
D get costs on indemnity basis from 13
th
March to time of judgment

S42.15A(1)(2)
P D $1 mil
D makes P an OoC on 12
th
March $500 + costs
P does not accept
D obtains judgment as favourable (or more favourable) to the D than the offer Verdict for D
($100)
unless the court orders otherwise
P pays Ds costs on ordinary basis from commencement of proceedings up to 12
th
March
P pay us costs on indemnity basis from 13
th
March to time of judgment


10.290 Kain v Mobbs (No 2)
x Compromise means that a party gives something away. A plaintiff with a strong case, is
perfectly entitled to give away one dollar, but it has not in any real sense given something
away no favourable position in relation to costs
x Here the offer of compromise served was heavily predicated upon the assumption that only
one answer did exist
x The offer believed that there was nothing to lose with the acceptance of the offer not
compromise
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x It was done simply to trigger the entitlement to payment of costs on an indemnity basis
without any true or genuine element of compromise

10.300 Calderbank Letters
Calderbank Offers Article

Basic rule as to Costs
x The starting point in respect of costs of proceedings is that costs follow the event
x Costs are assessed on ordinary basis unless court orders otherwise Calderbank offer is one
such circumstance

Public Policy
Calderbank offers encourage the proper compromise of litigation, in private interest of litigants and
public interest of prompt and economical disposal of litigation

Fundamental principals
Genuine Compromise
x Whether circumstance represented a genuine attempt to reach a negotiated settlement,
rather mere to rigger any costs sanctions see p396 for examples
x 20690 to 200000 was reasonable for a maid

Rejection must to unreasonable
x Whether there was sufficient time to consider the offer
x Whether the offerer had adequate information to enable it consider the offer
Relevant considerations include prospects of success
x Whether there are conditions attached, and if so if those conditions are reasonable
If the offer is subject to a non-monetary condition such as apology of proper exercise of
discretion the court will consider the reasonable of the condition and whether or not the
judgment was in substance more favourable than the offer

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Usual form of a Calderbank Letter
x A Calderbank offer does not have to be in any particular form or use any particular formula
x The court should according to its terms and to determine whether, in all the circumstance,
the Court should exercise its discretion to award indemnity costs
Non conforming rule offers
Can an attempt to make an offer of compromise under the UCPR which fails for noncompliance may
be relied upon as a Calderbank offer?
Should be treated with caution the rules state that the offer must state that it is an offer made in
accordance with the rules
The offer should conform in all respects if rules offer and if not intend to make a rules offer, should
be apparent on the fact of the written offer

Calderbank offers v rules offers
- para 60, 62, 63, 64
Rules offer have become increasingly flexible:
a) An offer may be made relating to whole or part of a claim
b) The offer need not be restricted to be money sum
c) More than one offer may be made under the rules in relation to same claim
d) Offers made under the rules may be made at any time
e) An offer must be made exclusive of cost, unless the offer is for a verdict for the defendant
and each party to pay their own costs
f) An offer may not be withdrawn during the period of acceptance, without the leave o f the
court
g) The offer must state that it is an offer made in accordance with the rules
h) An offer that purports to modify or restrict the operation of the rules is not an offer for the
purpose of Pt 20
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

10.30

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Chapter 11: Gathering Information and Evidence

11.10 Introduction
x There are different ways to gather informaiton using UCPR
x They allow parties to determine the strengths weakness in thier case, to promote
settlemesnt, and as evidence for trial
x This chapter will consider:
Discovery
Subpeona
Notices to produce and admit
Interrogatories

11.20 Discovery of Documents
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Discovery enalbe sparties to botain documents from each other
A party can seek documents withint a class fro the other party
There can be objections if a document is priviledged


11.40 Australian Law Reform Commission
x In almost all studies discoery is singled out as the procedure most open to abuse, most
costly and in need of cour tsupervision and control
x Parties may obstrut, refuse to provide evidence that would assit the otherside, or provide
vast numbers of docuemnts as a machanism to hide a single incrimnating document
x Discovery parties may request discovery to aggravate, embarrass to encourage settlement,
x Rules must be developed to correct this problem

11.70 The discovery process
1. Party A files and serves a notice of motion (with supporting affidavit) seeking discovery
pursuant to UCPR r 21.2
2. The notice of motion is heard and the court may or
UCPR r 21.2
3. With 28days of the order (or as order specifies), Party B prepares a list of doucments (UCPR r
21.3) which is divived into two parts (ie documents in posession of party B and documents
whihc were in posession of Paty B in last 6 months). The list describes the docuemnts,
describes which are priviledge and if documents not in posession of Party B, then B needs to
indicate who he believes to have them
4. The list is accompanied by supporting affidavit and sol
5. 1 A
UCPR r 21.5
6. There is a continusing obligation on Party B to make avilalbe subsequntly discovered
documents UCPR r 21.6
7. L ave, no informaiton from document can be used in other proceedings
8. 1
See p410-4113 for statues
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11.90 Technology and discovery
In large commercial cases where discovery may involve voluminous documents, the court may
require parties to consider providing discovery and inspection in an electron database

11.110 Priest v NSW

11.140 Subpoena to Produce
x A subpoena to produce can be issued on parties to ligation or third parties
x Once a subpoena is filed and served it becomes an order of the court
x The person served must produce the documents under the subpoena to the court
x Failure to comply is contempt of court
x However subpoena can be set aside as an abuse of process on grounds that:
It lacks a legitimate forensic purpose
Oppressive
Has improper purpose
x It can also resist access on grounds of privilege
See p430 435 for statues

11.160 Setting aside a subpoena
Waind v Hill & National Employers Mutual General Association
1. Witness brings documents to court and hands them to judge
2. The judge decides whether to allow inspection of documents
3. The third step is whether to allow admission of evidence in trail
x The subpoena can be set aside during the first step

Oppressive Insufficient particularisation of documents called for, or too onerous person should
not be required to think if a document is caught by the subpoena
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Improper pursue purpose to seek document sis not for purpose of litigation
It does not have legitimate forensic purpose subpoena cannot be used by discovery fishing

11.170
It is not necessary for recipient of subpoena to actually produce the document to court and then
argue that inspection should not be permitted can directly ask for subpoena to be set aside
No legitimate forensic purpose here P wanted briefing papers about operation to prove negligence,
false imprisonment ad infliction of nervous shock during a police operation
However the P left it for judges to decide what the documents might show not enough to grant a
subpoena

11.180
Attorney general for NSW v Chidgey
To issue a subpoena, the issuing party must show:
Identify a legitimate forensic purpose for which access is sought and,
L ially assist his or her case
A subpoena cannot be used by fishing
The state of legitimate forensic purpose must be express and precise R v Saleam
1
will be on that issue of issues, how subpoenaed documents will assist the subpoenaing party in his
case and the concrete grounds for believing the documents will in fact so assist Carroll v Attorney-
General for NSW
Documents must be relevant in showing that it will assist a case Carroll v Attoner General (NSW)

Notices to Produce
x Do not need to be filed in court
21.10 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
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(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.

See p451-452 for statutes

Notices to Admit
x Parties can obtain voluntary admission of fact UCPR r 17.2
x Parties can serve notices t o admit facts UCPR r 17.3 or to admit authenticity of documents
UCPR r 17.4
x Admission may be withdrawn with leave of court
x If notices under rr 17.3 and 17.4 are not disputed within 14 days then they are deemed to be
admitted
x See p 452 -454 for statues

11.250 Interrogatories
x A procedure where a party may be ordered to answer specified questions
x Usually answered on oath and can be tenders as evidence in trial
x See p 454




Gathering information and Evidence

Discovery and Notice to Produce limited by RELEVANCE
- what is the test of relevance?
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- applies Evidence Act definition r21.1(2) and 21.9(2). rationnally affect. Narrower than traditional
common law approach, a document relevant to a question in issue is discoverable if it would lead to
a train of inquiry which would either advance a partys own case or damage that of the adversary.
- becoz no longer applies documents.common law approach in:
- nSW .

Notice to produce
- UCPR r21.10, 21.11
- possession includes power and control
possession = lawful to right to possession
power = right to inspect it
custody = in ones physical possession regardless of right to possess

Notice to produce: applies only between parties
- only applies to documents which are relevant. [rule 21.9(2)] or referred to in order sides pleadings
etc
- more limited than obtaining an order for discovery becoz
- nend to .

Order for discovery only by order not by notice: s21.2(1)(2)(3)(4)
- rules dont allow for general discovery
- now restricted to discovery specified by class or classes of documents, and mukst not be specified
in more general terms than necessary (R21.2)
- can be specified by description, relevance, or in some other way (21.2(3))
- within 28 days party must serve its list of documents complying with sub-rule 1. Must contain all
the documents in the specified class or sample which are in the possession of the party; or arent
now, but were later than 6 months b4 the commencement of the proceedings. (21r3(2))
- Pt 21.1 Excluded documents
Documents which have to be disclosed include
any document .
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- [11.70] 1, 2, 3
- R21.4(2) must make all reasonable inquiries
eg Re McGorm: Ex parte Co-operate Building society of South Aus
Held insufficient for a bankrupt to say that he could not list his documents becoz his trustee had
them all. Had to make reasonable inquiry.
must make proper inquiries to try to identify documents not in possession. Extends to making
inquiries of the person who now has the document.
- reinforcing compliance with discovery rules
s61 CPA power of court where a party doesnt comply with a discovery or notice to produce
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 party of the
costs of another party.

Personal injuries
- r21.8 Personal injury claims
- notice to produce only applies to documents referred to in the pleadings or witness statement
not other documents unless special reasons R21.12
- can get discovery by order, but only if there are special reasons (r21.8)
Priest
- para 136, 137,










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- originating process as the process by which proceedings are commenced, and includes the
process by which a cross-claim is made
- when is a Statements 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 procedures, for example the evidence in chief is usually given by affidavit.
- what special kinds of matters require a statement of claim?
- UCPR r 6.3
- What specific kinds of matters require a summons?
- UCPR r6.4

See sample summons & statement of claim on pp487 & 489
- the contents and appearance of the originating process have specific requirements
- info that must be contained.
- the originating process should
- there are approved forms
- the originating process is also required to contain a notice
- the originating process describes the parties
- See UCPR r7.1 for who can commence
- whether a statement of claim or a summons, the originating process must be ..
- life of an originating process
an originating process
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an originating process that initiates
A failure.

S347 of LPA
- (2)

Appearance
- after the originating process has been served the D must file a notice of appearance or a defence
and serve it on the P.
indicates a submission to the jurisdiction
also acts as a waiver to object.
- the appearance or D must be filed within prescribed time periods.
if the originating process is a statement of claim
if the originating process is a summons the appearance must be filed on .
- there is express provision in the UCPR for a responding party to file an appearance submitting to
the orders.
- if a D wishes to object to the jurisdiction..
- an appearance should not be entered. Instead, a notice of motion pursuant to UCPR r12.11.
- An application for an order under UCPR r12.11

Pleadings
- pleadings are applicable for proceedings appropriate for a trial rather than matters being dealt with
by summary determination
- they are formal documents exchanged between the parties indicating the claims and defences and
the facts on which those claims and defences are based.
- the first pleading is the Ps statement of claim
- the response by each d is.

Incentive to respond to the last pleadings
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- once the statement of claim has been filed and served on the d, if the d does not respond to or
specifically deny each of the factual allegations in the statement of claim those facts are deemed to
be admitted: UCPR r14.26.
Eg D will be deemed to admit no. 3 if the situation is like this: there is Ps statement of claims and
Ds statement of claims. D responds to P in 1 S..D will be deemed to admit 3.
- After the defence has been delivered the last unanswered pleading
- Group Ltd v Karabssis
- as Mr Dowdy correctly submitted, by virtue

Objectives of pleadings
- provide a permanent record of the parameters of the case and allow the court to know the issues
in the proceedings
- provide sufficient info to the parties to allow each of them a fair opportunity..
- argued that the pleading proceeding is not sufficiently rigorous in forcing parties to define the
issues pleading rules and adversarial nature of the process discourages.
- case management practice notes now supplement the pleading process by requiring.
eg, practice note SC CL 5 SC
- These supplements to pleadings are not pleadings
- the pleadings limit the extent of discovery and interrogatories
- pleadings also govern the extent of the relevant evidence.
- once an allegation is made, such as in statement of claim
- once issues are joined, the pleadings confine the court as much as the parties becoz.
- relief is confined to that available on the pleadings
- what happened in Banque Commerciale SA
- Akhil sued 3 defendants: D1, D2, and D3 (the bank) ,for breach of trust for selling shares without
authority
- all the D filled a defence pleading a time bar. Akhil served replies on D1 and D2,
- if Akhil had formally replied the bank would have been entitled to demand far more detail of the
fraud.
- Akhil lost at trial but won on appeal.
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- the bank appealed to the HC where one of the main issues
- Mason CJ and Gaudron J held that Akhil was entitled only to such relief as was available on the
pleadings.
- the bank is therefore entitled to judgment in the action on the basis that its defence that the action
was statute-barred was made out.
- their honours also said:
the rule that in general, relief is confined to that available on the pleadings secures a partys right
to this basic requirement of procedural fairness. Accordingly, the circ.

ASIC v Rich
- para 3, 6, 7
- the case notes that cross-examination on issues that arise is permissible..
but when the context is understood, it can be seen that the cross-examination