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Lecture 2
Some terms; adversarial system;
offers of compromise
Discussion points
Discuss, in groups, what the following terms
might mean:
Discovery
Ex parte
Interlocutory
Issue
Judgment
Master
RMIT University
Slide 2
Discussion points
Motion
Order
Originating process
Prothonotary
Registrar
Statement of Claim
Summons
Writ
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Slide 3
Discussion points
Discovery: Pre-trial process, where one side sights
anothers documents or administers interrogatories
(questions answered on oath) on the other side;
Ex parte: An application made in the absence of the
opposing party. Inter partes when the other party is
present;
Interlocutory: Procedural applications or matters occurring
before the trial are interlocutory. Discovery applications are
an example (for better particulars);
Issue: A document issued by the court when it proceeds
from that court. Parties do most of the writing up of
documents, rather than the court.
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Slide 4
Discussion points
Judgment. Courts final decision on plaintiffs claim for relief.
May be enforceable for up to 15 years.
Master. Judicial Officer. Masters vested with certain of the
courts powers. In Victoria, the Senior Master is a judicial
member of the Court. He is responsible for the administration
of the Office and the performance of its functions. One
example is holding money paid into the court.
Motion. An application for an order is made by motion.
(Motion for costs, a motion for guilt or innocence of the party
after a jury verdict.)
Order. An order is a court command other than final
judgment.
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Slide 5
Discussion points
Originating process. Any document that
commences the plaintiffs case.
Prothonotary. Courts chief registrar, the
person in charge of court registers and filing
systems. Victoria has a Prothonotary office.
Registrar. Court will have a registrar in each
split system.
Statement of Claim. Ps pleadings, setting
nature of Ps case, and relief claimed
RMIT University
Slide 6
Discussion points
Summons. Issued by court summoning the addressee
to attend court proceedings or suffer sanction.
Writ. Document issued out of court registry that
addressee either do something or suffer consequences
in default. Writs might start an action (originating writs);
writs to compel court attendance (subpoenas).
Writ is the necessary vehicle to get the process rolling.
Trial Divisional Allocation (Order 4). Writ will have
Statement of Claim or Endorsement of Statement of
Claim.
The writ must be served within 1 year of it being filed.
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Slide 7
Scenario
In Monty Python and the Holy Grail, medieval villagers
bring a woman to Sir Bedevere, accusing her of witchcraft.
The villagers admit that they gave her a fake nose,
attempting to dress her up to look more like a witch. An
unconvinced Sir Bedevere proposes a non sequitur test to
determine whether or not she is a witch: witches burn, and
so does wood, so witches are made of wood; wood floats
on water, and so do ducks, therefore, if she weighs as
much as a duck, she is a witch. She is carried off by the
villagers to be burned, adding, Its fair cop she was
rightly accused and properly tried. Discuss the legal
aspects of this case regarding justice and procedure.
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Slide 8
Actions
Slide 9
Actions
(a) Existence of a claim of witchcraft;
(b) Resistance to that claim though in
this case, there was very little chance of
the accused mounting a true resistance;
(c) Reliance on an institution to adjudicate
the claim. In this case, that institution is
not as formalized as a court, but is Sir
Bedevere;
(d) Remedies
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Slide 10
Actions
Procedural law is that which governs the
conduct of proceedings before the court, the
mode of proceeding by which a legal right is
enforced, a distinguished from the law which
gives or defines the right.
Justice is, of course, questionable here:
The procedure here determined guilt, and the
procedure itself was what was problematic.
There was no legal representation.
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Slide 11
Actions
Particularly in the light of some of the more
complex and lengthy cases of late, it is arguable
that a certain level of the process leading up to
trial is unnecessary and perhaps, positively
harmful to the attainment of justice. Do we
need to completely re-think the ordeal of the
civil trial we put litigants through in an attempt to
achieve justice?
Justice John Middleton, The Attainment of Justice with particular emphasis on the Federal
Court, [2008] FedJSchol 34.
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Slide 12
What of justice?
Equal protection
Equity
Fairness
Mutual agreement
The best consequence (utilitarianism)
Equal access to courts
Or is it the rule of the strong? (see Platos
Thrasymachus in The Republic)
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Slide 13
Actions
Remember the goal is efficiency and
justice.
Is this goal confused?
It comes with problems
These are the twin pillars of civil
procedural reform and practice.
Now, in Victoria, what would the process
be?
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Slide 14
Reform
How do we assess whether a civil
procedural system needs reform?
This is where justice is important
Does the system do justice?
Common law maxim and imperative:
that justice should not only be done
but should manifestly and
undoubtedly be seen to be done (R v
Sussex Justices; Ex parte McCarthy
[1924] 1 KB 256
Reform
Cost of litigation;
Time needed to resolve disputes;
Accuracy with which the system finds the
facts and applies the law.
These criteria may sometimes conflict.
As we said last week: the Australian civil
justice system was said to be in crisis in
the 1980s.
Characterized by delays, high cost of
hearings and litigation.
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Slide 16
Actions
Regarding management in Victoria, there
is a controlled special list that operated for
the Supreme Court. (Intellectual property,
building, admiralty, commercial matters,
taxation and major torts must fall within
these lists)
Judge-in-charge of lists gives direction to
parties from early stages of each
proceeding to their list.
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Slide 17
Actions
Lists form part of the Trial Division of the
SC of Victoria.
Division divided into three divisions:
Commercial and Equity, Criminal Law and
Common Law. This is probably going to fit
into a criminal list.
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Slide 18
OVERVIEW
Adversarial systems a mix in
Australia
Offers of compromise
Calderbank offers
Adversarial system
Defined adversarial system as one
where proceedings are conducted
before an impartial judge or
adjudicator to determine a dispute
(the judge being passive in the matter
a neutral umpire);
On the basis of information provided
by the parties;
Adversarial system
Parties having primary responsibility for
defining the issues in dispute through
formalities such as pleadings and
particulars;
Parties also being responsible for pushing
the proceedings.
While only referring to resolution of
disputes in the court system through trial,
it has broader effects in society.
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Slide 21
Adversarial system
The parties square off against each other
over positions that are separate and distinct
from the decision maker (judge or jury);
The decision maker is meant to be free
from bias (again, whether the jury or the
judge);
The fact-finder is to be uninvolved with the
presentation of the arguments. Why would
this be? To prevent the arrival at premature
decisions.
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Slide 22
Adversarial system
Have the parties been given a fair chance
to put their case? To be represented?
Access to resources? The European
court will hunt for the truth; the AngloAmerican court, for the process of
fairness. The courts role is merely to
decide what is put before them in the
cases.
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Slide 24
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Slide 25
Adversarial system
But note that this is dependent on the parties
knowing what their best interests in the case
are, and that argument is turn dependent on
qualities and resources available to them
(Dietrich v R (1992) 177 CLR 292, 335
(Deane J); Giannarelli v Wraith (1988) 165
CLR 543, 55 (Mason CJ).
It is the structure and organization of the
forensic process or investigative method, not
the adversarial nature per se, that
distinguishes the inquisitorial and adversarial
system.
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Slide 30
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Offers of compromise
What is the purpose of the Offer of Compromise
system?
Encourage parties to assess changes in realistic
manner;
Then take steps to resolve proceedings;
Avoid lengthy litigation;
Sometimes, it may not be clear what the
prospects were in the sense that the evidence
was not available to the party at the time;
Court discretion can be utilized.
Slide 36
Calderbank offers
Calderbank letters
A way of determining whether rejection of such
an offer was unreasonable so that cost penalties
might apply;
Calderbank Letter [Calderbank v Calberbank
[1976] Fam 93] An offer by one party to
another, made without prejudice, save as to
costs, where the net effect involves keeping it
secret until the court comes to consider the
issue of costs.
Calderbank offers
The point of such a letter is that it can be
used as a point of argument later to show
that the offeree should pay costs to the
offeror from the date of the rejection of the
offer if what is awarded is not better than
what is given. (When D has made an offer
better than the result obtained by the
plaintiff.) It is the basis for a special order
of costs to be made against the party who
unreasonably failed to accept the offer.
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Slide 41
Slide 43
Calderbank offers
How clear were the terms of the
offer?
Did the offer foreshadow an
application for indemnity costs in the
event of the offeree rejecting it?
Court treats the award as an
indemnity basis (which is more
lucrative than party/party costs)
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Slide 44
Scenario
Amber Jones (the testatrix) died leaving a will
dated 25 February 2014. Under the will, Amber
appoints her solicitor Will Rogers as executor of
her estate. The testatrix left the whole of the
residual estate to her two children in equal
shares. The deceased was married at the time
of her death to the respondent, Peter Jones. In
her will the deceased provided in clause 5 as
follows:
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Slide 46
Scenario
"I declare that I make no provision for my husband Peter
Jones as I believe I have adequately provided for him
during my lifetime and it is my wish that my children are
the sole beneficiaries of my estate." It was accepted at
trial that no provision had been made for the respondent
during the lifetime of the testatrix and that the statement
in clause 5 of the will was false. The respondent brought
a claim pursuant under the Administration and Probate
Act 1958 seeking an order that such provision for his
proper maintenance and support be made out of the
estate of Amber Jones.
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Slide 47
Scenario
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Scenario
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Slide 49
Scenario
A fundamental principle at stake here is
costs and the offer of compromise system
that underpins a crucial aspect of the civil
procedure system in Australia. Courts are
keen to settle out of court or prevent cases
from dragging out and being resolved in
court if they can help it. Judges have
taken an interventionist role in case
management, and have been critical in the
way they manage cases.
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Slide 50
Scenario
Central here is the idea of using costs to
promote settlements, a point that was
voiced by the Australian Law Reform
Commission.
Costs penalties are levelled against the
party who rejects an offer, those who
proceed to trial and fail to obtain an
amount greater than the original offer.
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Slide 51
Scenario
Both defendants and plaintiffs can use the
Offer of Compromise system. A plaintiff
might offer to settle for less than the
judgment finally obtained. The court then
awards costs on a more generous basis
than if the offer of compromise had not
been made.
Imposition of costs order is presumed but
not automatic.
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Slide 52
Scenario
The system is designed to encourage parties to
assess their case in realistic manner.
Then take steps to resolve proceedings;
Avoid lengthy litigation;
To keep costs proportionate to what is being
litigated over;
Sometimes, it may not be clear what the prospects
were in the sense that the evidence was not
available to the party at the time;
Court discretion can be utilized.
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Slide 53
Scenario
There are two ways of viewing this case:
A party can make a formal offer within the
rules set by the Supreme Court; or
A party can make an informal offer for
settlement recognised under the common
law.
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Slide 54
Scenario
Is there an offer?
In Victoria, the relevant order is Order 26
(Supreme Court (Civil Procedure) Rules)
on the matter of offers of compromise.
There seems to be an unequivocal offer
made as to settlement by Peter Jones and
his representatives.
Was it served with a statement in
accordance with O. 26 of the SC Rules?
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Slide 55
Scenario
It seems that the offer was made in writing
(r 26.02(3)).
Does the offer satisfy rr. 27.02 to 27.04?
(there is a need to use certain terms; need
to be of durable white paper 297
millimetres by 210 millimetres; the size
known as International Paper Size A4
see r. 27.03)
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Slide 56
Scenario
Did the offer expire?
Timing is important here. It is not clear in
the case, but an offer expires after 14
days of service. Presumably, the offer can
be said to be rejected by Will Rogers
judging from his conduct, though this was
never clearly expressed. He said he was
considering it.
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Slide 57
Scenario
Was written acknowledgment given?
Will Rogers had to also give written
acknowledgment of the service within 3 days
after service to Peter Jones representatives.
(See relevant sections in r. 26.03.)
Is there a need to prove unreasonableness in
the behaviour of the party refusing the offer?
Not in the case of the offer of compromise
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Slide 58
Scenario
Cost consequences for non-acceptance: if
the plaintiff makes an offer and the
defendant does not accept it, and the
plaintiff obtains judgment more favourable
than the terms of the offer, entitles the
plaintiff to costs against the defendant up
to and including the day the offer would be
party to party costs but there is the
possibility of costs awarded on an
indemnity basis (r. 26.08)
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Slide 59
Scenario
Is a Calderbank offer made here? No.
Even if the formalities were not met for O 26, we
have to ask if it is a Calderbank Letter as discussed
in the case of Calderbank v Calberbank [1976] Fam
93. Such offers are treated as weaker than formal
court mechanisms, because the cost penalties are
not enshrined in any formal rule. However, it would
seem that the Calderbank offer is being treated as
something akin to a formal rule in costs at the
discretion of courts.
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Slide 60
Scenario
The Calderbank offer involves an offer from
one party to another, made without
prejudice, save as to costs, where the net
effect involves keeping it secret until the
court comes to consider the issue of costs.
There is only one thing here whether the
form of the Calderbank letter was used.
Does it mention an offer made without
prejudice as to costs? Probably not in this
case.
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Slide 61
Scenario
Why is that terminology used? The fact that the
offer made by the lawyer is without prejudice
protects the party making the offer from being
compromised legally by an admission made by
that party in attempting to reach a settlement.
When awarding costs, the court has the power to
consider the earlier offer and to award legal
costs in favour of the party who had made the
settlement offer covering all legal costs from the
date upon which the other party ought
reasonably to have accepted it.
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Slide 62
Scenario
Slide 63
Scenario
Was the duty to negotiate constructively in
response to the Calderbank offer
discharged? (This might be the case
under English common law)
Now, consider Civil Procedure Act 2010
(Vic), s 22 a lawyer must use
reasonable endeavours to resolve a
dispute by agreement;
Rogers may have been unreasonable
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Slide 64
Scenario
It is good to use a Calderbank when no
proceeding has yet commenced;
It is good to use such an offer if there will
be a change of circumstances within the
period of acceptance of the offer you
cant use the same principle for offer of
compromise.
More flexible to use
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Slide 65
Scenario
Peter Jones and his lawyers were astute
here to go for the offer in a tactical way
settlement, and probably feeling that Will
Rogers would not call their bluff and settle.
They got more than they in effect were
asking for.
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Slide 66
Scenario
A costs order is therefore likely to be ordered against
the executor from the date of the rejection. It will be
more than party-to-party costs. It is most probably
going to be an indemnity award against the executor
and estate. The relevant case here is Madden v
Singvongsa (2003), Victorian Supreme Court. That
case now stands as a precedent in the State of
Victoria for a plaintiff to apply pressure on estate
executors (where they are not also beneficiaries) to
settle a claim for fear of incurring greater legal costs
if the court ultimately grants a less favourable
outcome than the offer.
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Slide 67
Scenario
Discipline and Will Rogers
As a lawyer in addition to being an executor, there
were legal implications in Will Rogers conduct
regarding the negotiations with Peter Jones and his
representatives. However, he may well have been
right to assume prospects of success that Peter Jones
would not be awarded a share of the estate. Costs
orders can be made on a disciplinary basis where
proceedings are commenced irresponsibly. (On
matters of conduct, see White Industries v Flower and
Hart (1998) 156 ALR 169; Cook v Pasminco (No.2)
(2000) 107 FCR 44)
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Slide 68
Question
In Black and Decker Australasia v GMCA [2007]
FCA 1623, Finkelstein J was dealing with a
situation where the respondent sought leave to
file two affidavits out of time. In his judgment,
Finkelstein J described the High Court decision
in JL Holdings as having a chilling effect and
that it had been applied in many cases where a
simple costs order will not do justice between
the parties. Discuss any relevant points
Finkelstein J raises.
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Slide 69
Question
Issue of case management
Status of case management
What is the current law on the subject, as
opposed to the old law?
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Slide 71
Criticism of JL Holdings
Criticism of JL Holdings by Finkelstein J in
Black & Decker Australasia:
A case that is reasonably well prepared is
just as likely to be decided correctly as a
perfectly prepared case.
In other words, you should not allow all
applications for leave to amend to be
granted.
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Slide 72
Criticism of JL Holdings
There must be excusable non-compliance;
Factors to consider:
(a) the direct and indirect prejudice to the opposing
party;
(b) the impact of the delay on the proceedings;
(c) the reasons for the delay;
(d) good faith or lack of good faith on the part of the
party seeking to be excused; and
(e) the effect of putting off a trial both on other litigants
and generally on the courts ability to efficiently
manage its cases.
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