Civil Practice Notes

Civil Practice Cheat Sheet

Civil Practice Cheat Sheet: NSW Law

Case Management (Week 2)
Key Sections of the Civil Procedure Act (CPA):

Sections 56-61 CPA:
- Section 56: Overarching purpose is to facilitate the just, quick, and cheap resolution of the real issues in dispute.
- Section 57: Requires parties to assist the court in achieving the overarching purpose.
- Section 60: Court’s discretion in case management decisions.
- Section 61: Court’s power to make orders and give directions.
  Alternative Dispute Resolution (Week 4)
  Features of Mediation:
CPA Parts 4 & 5 (ss 38-41, ss 42-47) and UCPR Part 20:
- Mediation can be court-ordered or agreed by the parties.
- Mediators facilitate negotiations but do not impose a solution.
- Confidentiality is crucial in mediation.
  Features of Arbitration:
Arbitration provides a binding decision made by an arbitrator, which is enforceable in court.
Limitation Periods:
Limitation Act 1969:
- Section 14(1)(a)-(b): General limitation period for actions founded on contract or tort is six years.
- Section 27(2): Extension of limitation period in cases of fraud or mistake.
- Section 50C(1): Special limitation periods for specific actions.
  Initiating Proceedings and Pleadings (Week 5)
  Originating Process:
CPA Section 3 and UCPR Rule 6:
- The initiating process is either a statement of claim or a summons (r 6.2(1)).
  Statement of Claim:
Requirements:
- Must state the facts on which the plaintiff relies, the cause of action, and the relief sought.
  Pleading:
Key Rules of Pleading:
- Must be clear, concise, and specific.
- Must disclose a cause of action or defence.
  Particulars:
Required when necessary to define the issues, inform the other party of the case to meet, and prevent surprise at trial.
Service of Documents (Week 6)
Service General Rules:
UCPR Rule 10.1(1): Documents must be served in a manner ensuring receipt by the intended recipient.
Manner of Service:
Personal Service:
- Rules 10.20-10.27: Personal service required for certain documents such as subpoenas and originating processes.
- Rule 10.22: Personal service on corporations.
Substituted Service:
- Rule 10.14: Court may order substituted service where personal service is impractical.
Service Outside NSW:
- Service and Execution of Process Act 1992 (Cth): Section 15 SEPA regulates service outside NSW but within Australia.
  Evidence in Proceedings (Week 7)
  Affidavits:
UCPR Part 35: Affidavits must be filed to provide evidence in written form.
Limits on Discovery:
Practice Note SC Eq 11: Limits discovery to avoid excessive costs and delays.
Subpoena:
Rules 33.1, 33.3, 33.4, 33.6(1): Subpoenas compel the production of documents or attendance for testimony.
Interlocutory Orders (Week 8)
Security for Costs:
UCPR Rule 42.21 and CPA Section 67: Provides for security to be given for the defendant’s costs.
Interim Injunctions:
Criteria for Interlocutory Injunctions:
- ABC v O’Neill (2006): Plaintiff must show a prima facie case and that the balance of convenience favours granting the injunction.
  Freezing Orders (Mareva Injunctions):
Practice Note SC Gen 14 and UCPR Part 25 Div 2: Used to prevent asset dissipation before judgment.
Costs and Settlement (Week 9)
Cost Agreements:
Legal Profession Uniform Law (NSW) - s 174: Regulates cost agreements between lawyers and clients.
Cost Orders:
CPA Section 98 and UCPR Part 42: Courts have broad discretion to order costs based on fairness and justice principles.
Mechanisms of Settlement:
Calderbank Letters and Offers of Compromise: Encourage settlement by offering a cost penalty if the offer is not accepted and the party subsequently fails to achieve a better outcome at trial.
Enforcing Judgments (Week 11)
Writs of Execution:
CPA Sections 102-106 and UCPR Part 39:
- Writs of execution: Enforce judgments for possession of land, delivery of goods, or payment of money.
- Garnishee Orders and Charging Orders: Attach debts or create charges over property to satisfy a judgment debt.

Case management - Week 2
- CPA – ss 56-61
  - See →
    - Some major sections of CPA
Alternative Dispute Resolution, Limitation Periods, Jurisdiction - Week 4
- ADR/Mediation
  - CPA – Parts 4 and 5 (ss 38-41, ss 42-47)
  - UCPR - Part 20
    - See →
      - Features of mediation under the CPA & UCPR
      - Features of arbitration under the CPA
- Limitation Periods
  - Limitation Act 1969 ss 14(1)(a)-(b), 27(2), 50C(1)
- Cross-vesting
  - s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW):
Initiating Proceedings, Commencing Litigation, Joining Parties and Causes of Action, and Drafting Pleadings - Week 5
- Originating process
  - CPA S 3
  - UCPR r 6
    - r 6.2(1) - statement of claim or summons
    - See →
      - Statement of claim or a summons?
- Pleading
  - See →
    - Some key rules of pleading
- Particulars
  - See →
    - When are particulars required?
- Timeline
  - See →
    - A timeline of necessary steps
- OVERALL SEE →
  - Initiating Proceedings and Pleadings
Servicing - Week 6
- Service General rules
  - A general departure point, r 10.1(1)
  - Manner of Service - rr 10.5-10.19
  - Personal Service - rr 10.20-10.27
    - Personal service on corporations/business entities
      - rr 10.9-10.11:
      - r 10.22
    - r 35.8: affidavit of service required.
    - Documents required to be personally served (r 10.5)
      - Notice of Motion:
      - Copy of a judgment before committal or sequestration:
        
        r 40.7.
      - Subpoena:
        
        r 33.5.
  - Substituted service
    - Regulated by r 10.14.
  - Service outside of NSW but in Australia
    - Service and Execution of Process Act 1992 (Cth), known as SEPA.
      - s 15 of SEPA:
    - 1. r 10.3 of the UCPR.
  - Four different methods of service internationally:
    - 1. Service by private means (i.e. using a process server or local agent in the concerned country).
      - rr 11.4, 11.6-11.7, 11.8AA-11.8AC
    - 1. Service through diplomatic channels i.e. through using the Attorney-General’s office and Australian embassies. Regulated by Part 11, Division 2 of the UCPR;
    - 1. Service pursuant to the Hague Convention. Regulated by Part 11A of the UCPR; and
    - 1. Service arrangements agreed in bilateral treaties. Service by private means is most important for our purposes.
Evidence in Proceedings - Week 7
- Affidavits
  - UCPR Pt 35
- Oaths and affirmation
  - Part 5 of the Oaths Act and Division 2 of Part 2.1 of the Evidence Act.
- Limits on discovery
  - Practice Note SC Eq 11
- Discovery
  - Preliminary discovery (before proceedings commence): UCPR Pt 5; and
    - Before proceedings commence - r 6.4(1)(c)
  - 1. Discovery proper (after proceedings commence): UCPR Pt 21.
- Subpoena
  - rr 33.1, 33.3, 33.4, 33.6(1)
- Notice to admit
  - rr 17.3, 17.4
- Interrogatories
  - r 22.1
- Objection to produce documents founded on privilege
  - r 1.9
Interlocutory orders - Week 8
- Security for the defendant’s cost
  - r 2.1 and r 42.21 of the UCPR, s 67 of the CPA and, in respect of corporations, from s 1335 of the Corporations Act 2001 (Cth).
- interim junction/interlocutory injunction
  - S 18 of UCPR - need notice of motion form 20 UCPR
    - Two criteria for an interlocutory injunction
      - Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57):
        
        A prima facie case in relation to the substantive litigation; and
        
        Balance of convenience: weighing relative inconvenience and injury of plaintiff and defendant.
    - See →
      - The broad procedure for interlocutory applications
      - Affadavit rules Pt 35
      - Notice of Motion rules Pt 18
  - Freezing Orders
    - Mareva injunctions or Mareva orders
      - Practice Note SC Gen 14
      - UCPR Pt 25 Div 2
        
        rr 25.10-25.17
        
        r 25.14
      - See →
        
        An application for a Mareva order
  - Search orders
    - Anton Piller orders
      - Practice Note SC Gen 13 Supreme Court
      - UCPR Pt 25 Div 3
        
        rr 25.18–25.24
        
        r 25.22
      - See →
        
        Application for an Anton Piller order
  - Security for costs
    - r 42.21
Costs and Settlement - Week 9
- Table of Costs Scenarios
- CPA s 3 - defines costs
- Cost agreements
  - Part 4.3 Division 4 of the Legal Profession Uniform Law (NSW) - s 174
  - key provisions surrounding costs are s 98 of the CPA and Pt 42 of the UCPR.
  - Cost basis
    - Ordinary basis
      - CPA s 98(1)(c)
      - s 76(1) Legal Profession Uniform Law Application Act 2014 (NSW).
    - Indemnity basis
      - CPA s 98(1)(c)
  - The primary rule in relation to costs
    - Baulderstone Hornibrook v Gordian Runoff [2006] NSWSC 583.
      - Other things being equal, the loser has to pay the winner’s costs (the “loser pays” principle). See r 42.1 of the UCPR.
      - However, courts have broad discretion to order costs: s 98 CPA
      - See also Pt 42 of the UCPR.
    - Case management decisions
      - ss 56(5), 57(1)(d), 60, 61(3)(f), 62(6).
  - Mechanisms of settlement:
    - Calderbank letters; and
    - Offers of compromise
      - UCPR Part 20 Div 4 and Part 42.
    - Bullock Order
      - Bullock v London & General Omnibus Co [1907] 1 KB 264.
    - Sanderson Order
      - See Sanderson v Blyth Theatre Co [1903] 2 KB 533.
  - See → The UCPR and costs
  - Costs orders against legal practitioners
    - CPA s 99
    - Schedule 2 of Legal Profession Uniform Law Application Act 2014:
    - Supreme Court Practice Note 5 – General Division
Strike out, Summary Disposal, and Vexatious Litigation - Week 10
- UCPR – Parts 12, 13, 14.28, 16
- Strike out
  - UCPR r 14.28
- Summary jdugement, Frivolous and vexatious proceedings, non-appearance by plaintiff
  - UCPR Pt 13
    - Summary judgment – r 13.1;
      - The plaintiff has to apply for it (by motion under Pt 18 of the UCPR, supported by an affidavit pursuant to Pt 35).
    - r 13.4 - frivolous or vexatious litigant
      - See →
        
        Summary dismissal, r 13.4
    - Non-appearance by the plaintiff – r 13.6
- Default judgments
  - rr 16.2-16.3
  - Overturning - r 36.16
- Dismissal for want of due despatch
  - r 12.7
- Vexatious Proceedings Act 2008 (NSW)
  - s 6 - Meaning of “vexatious proceedings”
  - s 8 - Making of vexatious proceedings order
  - s 14 - Application for leave to institute proceedings
  - s 16
- CPA s 61 - court discretion
Enforcing Judgments - Week 11
- Different means of enforcement under the UCPR
- Judgement Entered
  - Judgement creditor (Winner) vs Judgement debtor (Loser)
- UCPR Part 39
  - Division 1
    - Enforcement of writs of execution generally
  - Division 2
    - Enforcement of writs against land
  - Division 3
    - Enforcement of writs against goods etc
  - Division 4
    - Garnishee orders
  - Division 5
    - Charging orders
  - Division 6
    - General
- Payment in timely fashion
  - CPA s 101
- Writs of execution
  - CPA s 102 - writ of execution
    - a writ of delivery (s 105);
    - a writ for the levy of property (s 106); or
    - a writ of possession (s 104)
  - How do you apply for a writ of execution?
    - CPA s 103
    - UCPR rr. 39.1, 39.2 & 39.3
  - Classes of judgment
    - Those entitling the successful party to possession of land – s 104 CPA;
    - Those requiring the delivery of goods – s 105 CPA;
    - Those requiring the payment of money – s 106 CPA; and
    - Those involving mandatory or injunctive orders.
  - Judgement Enforcable
    - CPA s 133
    - UCPR r 36.11(2)
    - Limitation Act s 17
  - Orders for examination
    - CPA s 108
    - UCPR rr 38.1 & 38.2
  - Judgment for the payment of money
    - CPA s 106(1)
  - Writ for the levy of property
    - CPA ss 106(2) - 106(3)
    - UCPR rr 39.6(2) - 39.6(3)
  - Instalment orders
    - CPA s 107(1)(b)
    - UCPR rr 37.1A - 37.2
  - Enforcement against land
    - UCPR rr 39.21(1)(2), 39.22 – 39.24
  - Orders against third parties
    - Garnishee order
      - rr 39.36 & 39.37
      - rr 39.34 & 39.35
    - Charging order
      - rr 39.44 & 39.45
  - Other enforcement tools
    - Receivers (r 40.2)
      - r 26.7
    - Sequestration (rr 40.2 & 40.3)
    - Contempt (pt 55 of the Supreme Court Rules).
Appeals - Week 12
- UCPR – Parts 50, 51
- Appeals
  - Appeals as of right
    - s 101(1) of the Supreme Court Act 1970 (NSW)
  - Appeals only with leave
    - s 101(2) of the SCA
    - Examples include:
    - Interlocutory judgments and orders:
      - SCA s 101(2)(e).
    - A judgment or order on an application for summary judgment:
      - SCA s 101(2)(l).
    - A judgment that a company be wound up:
      - SCA s 101(2)(n).
    - Judgments restraining or refusing to restrain winding up proceedings re companies:
      - SCA s 101(2)(o) & (p).
    - A judgment or order in proceedings of the Court with respect to the taxation or assessment of costs:
      - SCA s 101(2)(q); or
    - Final judgments that involve less than $100,000:
      - SCA s 101(2)(r).
- Nature of an appeal
  - s 75A of the SCA
- Appeal process timeframes
  - rr 51.8, 51.9, 51.9A 51.10, 51.11, 51.13, 51.16, 51.17, 51.40, 51.41
- Notice of appeal
  - Key document in appeal process - r 51.18(1)
- Appeal books
  - Leave applications
    - White folder
      - r 51.12
    - Blue Book
      - rr 51.25, 51.29, 51.32
    - Orange Book
      - rr 51.25, 51.30, 51.32, 51.33
    - [Combined Book]
      - r 51.26
  - Appeals
    - Red Book
      - rr 51.25, 51.27, 51.32
    - Black Book
      - rr 51.25, 51.28, 51.32
    - Appellant’s submissions
      - rr 51.34, 51.36, 51.37, 51.39
    - Respondent’s submissions
      - rr 51.34, 51.36, 51.37, 51.39
    - Final Referenced Submissions
      - rr 51.30(1 )(b), 51.32(3)
  - Chronologies
    - Appellant
      - Rr 51.34, 51.35
    - Respondant
      - R 51.37

Table of Contents
UCPR Cheat Sheet

Case management
a. CPA – ss 56-61
Alternative Dispute Resolution, Limitation Periods, Jurisdiction
a. CPA – Parts 4 and 5
b. UCPR - Part 20
Initiating Proceedings, Commencing Litigation, Joining Parties and Causes of Action, and Drafting Pleadings
a. UCPR – Parts 6, 14, and 15
b. Legal Profession Uniform Law Application Act 2014 (NSW) – Schedule 2 cl 4
Servicing
a. UCPR – Parts 6, 10, 11
Evidence in Proceedings
a. UCPR – Parts 18, 25, 31, 33, 34, 35 and 51 (Rules 60 and 61)
Interlocutory orders
a. UCPR Parts 18, 25, 31, 33, 34, 35 and 51 (Rules 60 and 61)
Costs and Settlement
a. UCPR Part 42
b. Legal Profession Uniform Law Application Act 2014 (NSW) – Schedule 2
c. Table of Costs Scenarios
d.
Strike out, Summary Disposal, and Vexatious Litigation
a. UCPR – Parts 12, 13, 14.28, 16
b. Vexatious Proceedings Act 2008 (NSW)
c. CPA s 61 - court discretion
Enforcing Judgments
a. UCPR – Parts 36, 37, 38, 39
b. CPA ss 102, 104, 105, 106
Appeals
a. UCPR – Parts 50, 51
Week 2 Ch 1: Introduction and Guiding Principles, Case Management and Purpose
● Procedural Law
○ Procedural Law def
● the law that governs the conduct of proceedings before the court
● rules which are directed to governing or regulating the mode or conduct of court proceedings”: McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
● Described as “adjectival” law
● is governed by the lex fori which means that the applicable laws of procedure and evidence will be the laws of the forum, that is, the laws of the court which is hearing the claim.
● procedural law regulates the way in which substantive rights and obligations are claimed and enforced, without impacting on the definition of those particular substantive rights.
○ Substantive law is the law that defines legal rights, duties, powers and liabilities
● Judging Civil Justice
Dame Hazel Genn, “Introduction: What Is Civil Justice for?” in Hazel Genn (ed), Judging Civil Justice, 2008 Hamlyn Lecture
○ The significance of procedure
○ Sources of procedural law
○ ADVERSARIAL SYSTEM OF CIVIL LITIGATION
○ “Cards on the table” approach to litigation
Week 2 Ch 2: Case Management in New South Wales
● Intro
○ Traditional Adversarial preparation
● JUSTICE DELAYED IS JUSTICE DENIED
○ Jackamara v Krakouer (1998) 195 CLR 516 at 526–527
○ BACKLOG REDUCTION
○ COSTS
○ The Complexities of Case Management
○ Perils of case management
● CASELOAD MANAGEMENT AND MANAGERIAL JUDGING
○ Case Management in New South Wales
○ The Act and Rules
○ Court Organisation of Management
○ Managerial Judging
● THE CIVIL PROCEDURE ACT 2005 AND THE UNIFORM CIVIL PROCEDURE RULES
○ The CPA and the UCPR consolidated the existing provisions about civil procedure into a single Act and a set of rules that apply uniformly to all three NSW courts
○ Some major sections of CPA
○ HOW HAS PT 6 OF THE CPA AFFECTED CIVIL PROCEDURE?
○ DIRECTIONS
● THE APPLICATION OF THE CPA AND UCPR
○ Hans Pet Constructions v Cassar [2009] NSWCA 23
○ Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
○ Policy Issues and Exercise of the Power
○ Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing (2013) 250 CLR 30
○ Tugrul v Tarrants Financial Consultants [No 5] [2014] NSWSC 437
○ Queensland v JL Holdings Pty Ltd (1997)189 CLR 146
Week 3: Access to Justice, Open Justice and Client Care
● THE PRINCIPLE OF OPEN JUSTICE
○ Open Justice
○ Common law power to depart from the open justice principle
○ Hogan v Hinch (2011) 243 CLR 50
○ Common law categories of cases that are exceptions to the open justice principle
● Statutory power to close the court in civil proceedings
○ CPA s 71 - closing the court
○ Statutory power to make suppression and non-publication orders
○ X” v Sydney Children’s Hospitals Specialty Network [2011] NSWSC 1272
○ A v Bird; C v Bird [2015] NSWSC 570
Week 4: Alternative Dispute Resolution (ADR), Jurisdiction, and Limitation Periods
● Alternative Dispute Resolution (ADR)
○ Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 7.2 (r 36 for barristers)
○ Negotiation
○ Jurisdiction – an introduction
○ Transferring proceedings between courts
○ Three considerations in transferring proceedings – s 5 Cross-Vesting Act
○ The interests of justice
● Limitation periods
○ Limitation statutes impose a time limit within which you must commence proceedings for a cause of action.
○ Some common limitation periods
○ [l]awyers may use ADR not for the accomplishment of a ‘better’ result, but as another weapon in the adversarial arsenal to manipulate time, methods of discovery, and rules of procedure for perceived client advantage”
○ TYPES OF ADR PROCESSES
● Negotiation
○ The distinguishing feature of negotiation, compared to the other forms of dispute resolution that will be examined, is that negotiation involves no third party whose role is to facilitate, advise or determine the resolution of the dispute.
○ advantages and disadvantages of negotiation.10
● MEDIATION
○ Mediation is the most widely used form of ADR.
○ Role of the lawyer
○ Mediation models
○ Position statements
○ Duty to act in good faith
○ Higgins v Higgins [2002] NSWSC 455
○ Waterhouse v Perkins [2001] NSWSC 13
● ARBITRATION
○ Arbitration
○ Re Carus-Wilson & Greene (1886) 18 QBD 7,
○ Arbitration elements
○ MacDougall v Curleveski (1996) 40 NSWLR 430
● COMMERCIAL ARBITRATION ACT 2010 (NSW)
○ Commercial Arbitration Act 2010 (NSW) which applies to domestic commercial arbitration.
○ To refer disputes to arbitration and for an arbitral tribunal to be constituted there must be a valid and binding arbitration agreement.
○ John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
○ Cave v Allen Jack and Cottier Pty Ltd [2014] NSWSC 1365
○ EXPERT DETERMINATION
● Before a Civil Action
○ JURISDICTION
○ Cross Vesting Legislation
○ LIMITATION PERIODS
○ Specific limitations Chart
○
Week 5: Initiating Proceedings, Commencing Litigation, Joining Parties and Causes of Action, and Drafting Pleadings
● Proceedings commenced by the ‘originating process’
○ s 3 of the CPA: the originating process ‘means the process by which proceedings are commenced…’
○ r 6.2(1) of the UCPR: our originating process can take two forms:
● Statement of claim
○
○ UCPR controls the content and form of many parts of a SoC e.g. division 4 of part 6 says that the statement of claim has to include the relief claimed by the plaintiff and the notice to the defendant.
○ Some technical requirements spelled out in r 6.2(3A). SoC has to include:
● Summons
○
○ Statement of claim or a summons?
○ What are pleadings?
○ Pleadings – some general points of significance
○ Some key rules of pleading
○ Particulars
○ When are particulars required?
○ Joining parties
○ Joining parties cont.
○ Joining causes of action
○ A timeline of necessary steps
● JOINING PARTIES AND CAUSES OF ACTION
○ Dow Jones & Co v Gutnick,7 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
○ Res judicata def
○ Joining plaintiffs
○ Joining defendants
○ What is a transaction?
○ Joinder by leave
○ JOINDER OF CAUSES OF Action
○ JOINDER, EFFICIENCY AND Costs
● Initiating Proceedings and Pleadings
○ Section 3 of the Civil Procedure Act 2005 (NSW) (CPA) defines the “originating process” as the process by which proceedings are commenced and includes the process by which a cross-claim1 is made
○ APPEARANCE
○ PLEADINGS
○ Material facts
○ Evidence
○ Surprise
○ Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
○ Verification
○ PARTICULARS
○ Bailey v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214
○ Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
○ BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 8
○ Particulars and evidence
○ When are particulars required?
Week 6: Services
● What is Service
○ Service def:
○ Service – some rules
○ What is involved in personal service?
○ Personal service on corporations/business entities
○ Substituted service
○ Limits to substituted service
○ Urgency
○ Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822
○ Nash v Stewart [2010] NSWSC 513
○ Service outside of NSW but in Australia
○ SEPA
○ Service internationally
○ Service by private means
○ Service by private means cont.
○ Hunter v Hanson [2014] NSWCA 263
○ Documents required to be personally served (r 10.5)
○ Service by agreement, acknowledgment or undertaking
Week 7: Evidence in Proceedings
● Evidence in Proceedings
○ Two classic forms of evidence
○ Some important features of affidavits
○ Affidavits – rules of drafting
○ Affidavits – some conventions
○ Oaths & affirmations
○ An archetypal affidavit
○ Discovery
○ Limits on discovery
○ Discovery
● Preliminary discovery
○ Preliminary discovery available to:
○ Preliminary discovery – ascertain identity or whereabouts
○ Preliminary discovery – whether or not to commence proceedings
○ Preliminary discovery - application
○ Discovery and notices to produce
○ Discovery (limits)
○ Notice to produce
● Subpoenas
○ What is a subpoena?
○ Formal requirements for a subpoena
○ Subpoenas and conduct money
○ Notice to admit
○ Interrogatories
○ Objection to produce documents founded on privilege
● Procedure - Textbook
○ Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114
○ Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35
● Document Discovery
○ Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 (8 September 2011
○ The discovery process
○ Evidence Types
● Practice Note SC Eq 11 Disclosure in the Equity Division
○ Disclosure in the Equity Division
● Electronic discovery reference model (EDRM)
○ EDRM is a community of e-discovery and legal professionals who create practical resources to improve e-discovery and information
○ Technology assisted review (TAR) def
○ McConnell Dowell Constructors v Santam (2016) 51 VR 42
● Subpoena
○ Waind v Hill & National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 at 381
○ Grounds for setting aside a subpoena to produce
○ Drafting affidavits
○ Ying v Song [2010] NSWSC 1500
Week 8: Interlocutory Applications and Injunctions
● The court has power to order a plaintiff to give security for the defendant’s cost of defending the plaintiff’s claim and can order a stay of proceedings until the security is given
○ s r 2.1 and r 42.21 of the UCPR, s 67 of the CPA and, in respect of corporations, from s 1335 of the Corporations Act 2001 (Cth).
● Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245
○ Jurisdiction:
○ Parties:
○ Procedural History:
○ Original Dispute:
○ Current Reason for Trial:
○ Material Facts:
○ Issue Raised:
○ Laws/Statutes in Contention:
○ Precedences:
○ Tests and Principles:
○ Judicial Opinions:
○ Ratio Decidendi:
○ Conclusion and Relevance to Modern Law:
● Idoport Pty Ltd v National Australia Bank Ltd; Idoport Pty Ltd & Market Holdings Pty Ltd v Argus [2001] NSWSC 744
○ Jurisdiction:
○ Parties:
○ Procedural History:
○ Original Dispute:
○ Current Reason for Trial:
○ Material Facts:
○ Issue Raised:
○ Laws/Statutes in Contention:
○ Precedences:
○ Tests and Principles:
○ Judicial Opinions:
○ Ratio Decidendi:
○ Conclusion and Relevance to Modern Law:
● Interim injunctions
○ interim junction def or interlocutory injunction def
○ Injunction types:
○ Freezing orders def are otherwise known as Mareva injunctions or Mareva orders.
○ Jackson v Sterling Industries Ltd (1987) 162 CLR 612
○ The majority judgment subsequently made explicitly clear that a freezing order is not to be used to provide security to a plaintiff.
○ Marango Investments Pty Ltd v Kingdom Towers 4 Pty Ltd [2019] NSWSC 801
○ Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
○ Practice Note SC Gen 14 Supreme Court – Freezing Orders (also known as “Mareva orders” or “asset preservation orders”)
○ Search orders def are otherwise known as Anton Piller orders:
○ Practice Note SC Gen 13 Supreme Court – Search Orders (also known as “Anton Piller Orders”)
● Interlocutory Applications and Injunctions
○ What is an interlocutory application?
○ The broad procedure for interlocutory applications
○ What must a notice of motion contain?
○ Notices of motion – some more requirements
○ Pro forma notice of motion
○ Some types of interlocutory orders
○ Security for costs
○ Injunctions
○ The usual undertaking as to damages
○ Two criteria for an interlocutory injunction
○ Factors going to the balance of convenience
○ Appeals from orders granting interlocutory injunctions
○ Mareva orders
○ Mareva orders – when are they appropriate?
○ An application for a Mareva order
○ Anton Piller orders
○ Three essential criteria for the grant of an Anton Piller order
○ Application for an Anton Piller order
○ Independent solicitors
○ Anton Piller orders – some other characteristics
○ Obligation of candour
Week 9: Costs and Settlement
● Costs and Settlement
○ What are costs?
○ Costs agreements
○ On what basis are costs calculated?
● The primary rule in relation to costs
○ Usually, costs follow the event:
○ Some general principles when departing from the primary rule
○ The role of costs in managing litigation
○ Costs as a spur to settlement
○ Calderbank letters
○ Offers of compromise
○ Offers of compromise – cost implications
○ Offers of compromise – some technical matters
○ Leach v The Nominal Defendant [2014] NSWCA 391
○ The legislative framework for costs
○ The UCPR and costs
○ Bullock and Sanderson orders
○ Costs assessment process
○ Costs orders against legal practitioners
○ Firth v Latham & Ors [2007] NSWCA 40
○ Once accepted
Week 10: Strike out, Summary Disposal, and Vexatious Litigants
● Strike out, Summary Disposal, and Vexatious Litigants
○ What is Strike out?
○ The role of pleadings
○ Strike out – r 14.28
○ r 14.28(1)(a) – discloses no reasonable cause of action/defence
○ r 14.28(1)(a) – discloses no reasonable cause of action/defence cont.
○ r 14.28(1)(b) – tends to cause prejudice, embarrassment or delay
○ r 14.28(1)(c) – abuse of process
○ Court wary of striking-out pleadings
○ Summary disposal
○ Difference between summary disposal and Strike out
○ Summary disposal – summary judgment, r 13.1
○ Summary judgment, r 13.1 – some key points
○ Summary dismissal, r 13.4
○ r 13.4(1)(a) – frivolous or vexatious proceedings
○ Summary dismissal - procedure
○ General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
○ r 13.6 – dismissal where plaintiff fails to appear
○ Default judgments
○ Overturning a default judgment
○ Dismissal for want of due despatch
○ Vexatious litigants
○ Attorney General of NSW v Rahman [2014] NSWSC 42
Week 11: Enforcing Judgments
● Enforcing Judgments
○ What is judgment enforcement?
○ Different means of enforcement under the UCPR
○ Why should judgment debtors pay in a timely fashion?
○ Writs of execution
○ How do you apply for a writ of execution?
○ Classes of judgment
○ When is a judgment enforceable?
○ Orders for examination
○ Judgment for the payment of money
○ Writ for the levy of property
○ Writ for the levy of property cont.
○ Instalment orders
○ Enforcement against land
○ Orders against third parties
○ Other enforcement tools
Week 12: Appeals
● Appeals
○ Appeals
○ Types of appeal
○ The nature of an appeal
○ Appeal process timeframes
○ Notice of appeal
○ Appeal books

Week 2 Ch 1: Introduction and Guiding Principles, Case Management and Purpose

Procedural Law
- Procedural Law def
the law that governs the conduct of proceedings before the court
rules which are directed to governing or regulating the mode or conduct of court proceedings”: McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Described as “adjectival” law
is governed by the lex fori which means that the applicable laws of procedure and evidence will be the laws of the forum, that is, the laws of the court which is hearing the claim.
procedural law regulates the way in which substantive rights and obligations are claimed and enforced, without impacting on the definition of those particular substantive rights.
- Substantive law is the law that defines legal rights, duties, powers and liabilities
  - The distinction between substantive and procedural law was stated by the majority in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Judging Civil Justice

Dame Hazel Genn, “Introduction: What Is Civil Justice for?” in Hazel Genn (ed), Judging Civil Justice, 2008 Hamlyn Lecture

The significance of procedure
- Civil Justice system comprises
  - Substantive law
  - Civil procedure rules
  - Courts
  - Judiciary
- the critical elements that contribute to perceptions of fairness are
  - the opportunity to be heard,
  - the opportunity to influence the decision maker,
  - even-handedness of the decision maker,
  - and being treated with courtesy and respect.
Sources of procedural law
- Powers provided by statute
  - The sources of procedural law in the NSW Supreme, District and Local Courts are mainly found in the Civil Procedure Act 2005 (NSW) (CPA) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)
- Inherent and implied jurisdiction
  - There is also inherent jurisdiction (or inherent power) in superior courts of record (such as the Supreme Court) to regulate their processes and prevent an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23;
  - The District Court and Local Court have a limited jurisdiction which arises expressly under statute or is derived by implication from statutory provisions conferring particular jurisdiction:
    - Grassby v The Queen (1989) 168 CLR 1 at 16–17
  - Grassby v The Queen (1989) 168 CLR 1
    - Jurisdiction & Citation: High Court of Australia, binding authority.
    - Procedural History:
      - Appeal to the High Court of Australia.
    - Current Reason for Trial:
      - Examination of the inherent powers of superior courts and the implied powers of inferior courts.
    - Material Facts:
      - The case discusses the nature of the inherent jurisdiction of the Supreme Court of New South Wales and contrasts it with the limited, implied jurisdiction of inferior courts like magistrates’ courts.
    - Issue:
      - Distinction between inherent jurisdiction of superior courts and implied jurisdiction of inferior courts.
    - Law(s)/Statute(s) in Contention:
      - Inherent powers of the courts, Justices Act (specific to contempt powers of magistrate’s courts).
    - Tests & Elements:
      - Discussion on the inherent power of superior courts stemming from their general responsibility for the administration of justice, and the principle that a grant of power carries everything necessary for its exercise.
      - The term “necessary” is defined not as “essential” but as what is reasonable.
    - Judicial Opinions and Interpretation:
      - The High Court, led by Dawson J with Mason CJ, Brennan, Deane, and Toohey JJ agreeing, outlined the inherent jurisdiction of superior courts and the limited, implied jurisdiction of inferior courts.
      - Emphasized the fundamental distinction between these jurisdictions and the scope of powers derived therefrom.
    - Legal Reasoning & Ratio Decidendi:
      - Superior courts possess inherent powers due to their broad responsibility for justice administration, which includes powers not explicitly granted but necessary for the exercise of justice.
      - Inferior courts have limited, statutory-based implied powers necessary for their jurisdiction’s effective exercise.
        
        The distinction between inherent and implied powers is crucial for understanding the scope and source of judicial powers.
    - Result & Relevance to Modern Law:
      - Affirms the broad, inherent jurisdiction of superior courts like the Supreme Court of NSW, and clarifies the limited nature of implied powers for inferior courts.
      - Highlights the judiciary’s structured hierarchy and the nuanced allocation of powers, underscoring the principle of necessary implication in statutory interpretation and the administration of justice.
- Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
  - Jurisdiction & Citation:
    - High Court of Australia, binding authority.
  - Procedural History:
    - Karl Pelechowski appealed against his conviction and sentence for contempt by the NSW Court of Appeal, originating from an order in the District Court.
  - Original Dispute:
    - The dispute involves a loan agreement between Michael Rahme and Karl Pelechowski & Penelope Jane Stephens (Penny Pelechowski), with Mr. Rahme seeking repayment through the District Court.
  - Current Reason for Trial:
    - Appeal against conviction and sentence for contempt relating to non-compliance with a court order.
  - Material Facts:
    - In 1983, Rahme lent $50,000 to Pelechowski and Stephens, with agreement terms for repayment.
    - A legal dispute over repayment led to a District Court order restraining Pelechowski and Stephens from dealing with their property until payment of the judgment.
  - Issue:
    - Whether the District Court had the implied power to make an asset preservation order restraining the appellants from dealing with their property, beyond the express provisions of legislation.
  - Law(s)/Statute(s) in Contention:
    - Real Property Act 1900 (NSW),
    - District Court Act.
  - Precedences:
    - The decision references the principle established in Grassby v The Queen regarding the limits of implied powers in the context of judicial proceedings.
  - Tests & Elements:
    - The decision discusses the concept of “necessary” powers as those reasonably required or legally ancillary to enforce specific remedies distinct from “essential” powers.
    - It emphasizes reasonableness as the criterion for determining such necessity.
  - Judicial Opinions and Interpretation:
    - Gaudron, Gummow, and Callinan JJ. held that the District Court’s order granting asset preservation was beyond what was reasonably required or ancillary to the enforcement remedies provided in the District Court Act, effectively giving Rahme additional security not contemplated by the judgment itself.
  - Legal Reasoning & Ratio Decidendi:
    - The High Court concluded that the District Court exceeded its implied powers by imposing an asset preservation order without a clear basis for such authority in legislation, emphasizing the importance of undertakings to proceed expeditiously in such contexts and the limitation of implied powers to those that are reasonable and necessary.
  - Result & Relevance to Modern Law:
    - This case clarifies the scope of implied powers of courts, particularly concerning orders that affect the property rights of individuals post-judgment.
    - It underscores the principle that courts’ powers to make ancillary orders are limited to what is reasonably necessary for the effective exercise of expressly conferred jurisdiction, highlighting the balance between judicial discretion and statutory limits.
- GUIDING PRINCIPLES FOR PROCEDURE
  - The CPA sets out that the “overriding purpose of this Act and of the 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”: s 56.
  - The court is to act in accordance with the dictates of justice in deciding whether to make any order or direction for the management of proceedings, including orders for amendment or adjournment: s 58.
  - When determining the overriding purpose and the objects of case management (ss 56 and 57)
    - 1. the degree of difficulty or complexity to which the issues in the proceedings give rise;
    - 1. 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; and
    - 1. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.
ADVERSARIAL SYSTEM OF CIVIL LITIGATION
- Adversarial model features
  - a party-controlled dispute (ie, the parties define the dispute and present evidence and argument);
  - the use of precedent, procedural rules and laws of evidence;
  - a reactive, impartial judge who acts as an umpire;
  - reliance on oral testimony, which is adduced by witnesses and is subject to cross-examination.
    - In addition, advocates use oral argument in the presentation of their case;
  - the trial is the climactic end of the litigation process (and is distinct from the pre-trial stages of proceedings); and
  - use of the trial transcript for an appeal.
“Cards on the table” approach to litigation
- Conducting litigation as if it were a card game is now discouraged in the adversarial system.
- In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, Heydon JA said at [26]:
  - The conduct of litigation as if it were a card game in which opponents never see some of each other’s cards until the last moment is out of line with modern trends.
- Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
  - Jurisdiction & Citation:
    - New South Wales Court of Appeal, persuasive authority outside NSW but binding within.
  - Procedural History:
    - Appeal in the NSW Court of Appeal regarding issues in civil litigation conduct.
  - Current Reason for Trial:
    - Focus on the necessity of cooperation, clarity, precision, and openness in the conduct of litigation, specifically in complex commercial cases.
  - Material Facts:
    - The case emphasizes the importance of parties and their legal representatives working together to clearly express trial issues, referencing statutory duties and procedural laws.
  - Issue:
    - The responsibilities of parties and their legal representatives in ensuring the just, quick, and cheap resolution of disputes by clearly and precisely identifying issues for trial.
  - Law(s)/Statute(s) in Contention:
    - Civil Procedure Act 2005 (NSW), specifically the duty to assist the court in furthering the overriding purpose of dispute resolution.
  - Precedences:
    - Cites several cases that underline the importance of avoiding surprise and the duty of clear disclosure, including White v Overland, Nowlan v Marson Transport Pty Ltd, Glover v Australian Ultra Concrete Floors Pty Ltd, Sutton v Erect Safe Scaffolding (Aust) Pty Ltd, and Hooker v Gilling.
  - Tests & Elements:
    - The decision illustrates the modern requirement for litigation to be conducted with full disclosure and clarity, reflecting a “cards on the table” approach to ensure all parties are aware of the issues and arguments to be addressed.
  - Judicial Opinions and Interpretation:
    - Allsop P, with Beazley and Campbell JJAs agreeing, underscored the evolution of civil procedure towards greater openness and cooperation among parties, mandated by statutory duties and procedural rules.
  - Legal Reasoning & Ratio Decidendi:
    - The court highlighted the statutory foundation for the duty of parties and their legal representatives to assist in the resolution of disputes by clearly delineating issues, which is essential for the efficient and fair conduct of trials.
    - The emphasis is on the necessity for parties to actively participate and cooperate in the litigation process to facilitate a just, quick, and inexpensive resolution.
  - Result & Relevance to Modern Law:
    - The judgment reinforces the principle that modern civil litigation, especially in commercial disputes, demands high levels of cooperation and disclosure from all parties.
    - It places a clear statutory duty on parties to assist the court, extending beyond traditional pleading requirements to encompass all aspects of litigation conduct, thereby ensuring that the real issues in dispute are promptly and efficiently addressed.

Week 2 Ch 2: Case Management in New South Wales

Intro
- Traditional Adversarial preparation
  - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [113], the High Court stated,
    - “In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone”.
JUSTICE DELAYED IS JUSTICE DENIED
- Jackamara v Krakouer (1998) 195 CLR 516 at 526–527
- Delays are not beneficial and increase burden on the judicial system
- Delays increase costs due to memory fading and less/lost evidence
- BACKLOG REDUCTION
  - Bi v Mourad [2010] NSWCA 1
  - Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act.
  - Encourages Civil Procedure Act
- COSTS
  - Costs prevent access to justice and may be leveraged to torpedo cases or accept lower settlements
  - the average cost of litigation in New South Wales was somewhere in the range of approximately 90,000
- The Complexities of Case Management
  - Case management emerged under caseflow management in the United States in the early
- Perils of case management
  - Front-loading and unnecessary running-up of costs
    - First, costs may be front-loaded, with the result that parties who would in any event have settled their disputes are nonetheless forced to pay significant amounts for work done by lawyers in complying with case management requirements.
    - The second way in which judicial case management has the potential to drive up expenses is simply by being excessive
CASELOAD MANAGEMENT AND MANAGERIAL JUDGING
- Case Management in New South Wales
  - The New South Wales Courts do not have what the Americans call a “docket system” under which cases are assigned to the judge who will conduct the trial for management
- The Act and Rules
  - The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules confirm and re-enact the powers of courts to confine a case to issues genuinely in dispute and to ensure compliance with court orders, directions, rules and practices.
  - When exercising any power a court is required to give effect to the overriding purpose expressed in the Act, namely:
    - to facilitate the “just, quick and cheap” resolution of the real issues in the proceedings.
      - S 56
  - Objects of case management – s 57 CPA
    - The just determination of proceedings.
    - The efficient disposal of the business of the court.
    - The efficient use of available judicial and administrative resources.
    - The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the parties.
  - In Australia, the second largest cost after legal fees is expert evidence.
- Court Organisation of Management
  - District Court
    - requires litigants not to commence an action unless they are ready to proceed with it, save in the case of a time limitation problem.
  - Supreme court
    - Court of Appeal, the Court of Criminal Appeal, the Common Law Division and the Equity Division have their own registrars responsible to judges for case management.
- Managerial Judging
  - Managerial judging
    - focuses on the role of the judge in an individual case.
    - The judge tailors the procedures to be employed to the needs of the individual case.
    - Managerial judging requires the judge to take an active part in directing the proceedings through its interlocutory stages
THE CIVIL PROCEDURE ACT 2005 AND THE UNIFORM CIVIL PROCEDURE RULES
- The CPA and the UCPR consolidated the existing provisions about civil procedure into a single Act and a set of rules that apply uniformly to all three NSW courts
- Some major sections of CPA
  - S 56
    - Just, Quick, and cheap
  - S 57
    - Objects of case management,
    - Part of the Just category
  - s 58
    - Court to follow dictates of justice,
    - Part of the Just category
  - s 59
    - Elimination of delay and s 60 Proportionality of costs.
    - Part of the Quick category
  - s 60
    - Proportionality of costs
    - Part of the Cheap category
  - s 61
    - Consequences of failure to abide by directions
- HOW HAS PT 6 OF THE CPA AFFECTED CIVIL PROCEDURE?
  - Metropolitan Petar v Mitreski [2008] NSWSC 29
    - Changed the guidelines for dealing with case management and procedural applications
    - Pt 6 of the CPA is the Just, Quick, and Cheap part of the CPA - ss 56-60
  - Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd; Brooks v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169
    - The Overriding Purpose of the Civil Procedure Act 2005 and of the rules of court, now enshrined in s 56 of the Civil Procedure Act 2005, is to facilitate the just, quick and cheap resolution of the real issues in the proceeding
- DIRECTIONS
  - The objects of case management identified in the CPA and the UCPR are the just determination of proceedings;
    - the efficient disposal of the business of the court;
    - the efficient use of available judicial and administrative resources;
    - and the timely disposal of the proceedings,
    - and all other proceedings in the court, at a cost affordable by the parties
  - Case management is undertaken through a series of directions hearings before a judge or registrar.
THE APPLICATION OF THE CPA AND UCPR
- Hans Pet Constructions v Cassar [2009] NSWCA 23
  - Jurisdiction
    - New South Wales (NSW)
  - Case Background
    - Initiated over alleged defective tiling work.
    - Hans Pet Constructions Pty Ltd sought damages for the cost of remediation against the Cassars, who provided the tiling services.
  - Procedural Milestones
    - Claim Lodgment: November 2007, highlighting the procedural commencement under the Uniform Civil Procedure Rules.
  - Defence Filing:
    - January 2008, where the Cassars challenged the existence of a contractual agreement and the quality of workmanship, introducing counterclaims like contributory negligence and estoppel.
  - Pre-trial Management:
    - Directions for evidence submission and trial scheduling were set, reflecting the Rules’ emphasis on timely and orderly case progression.
  - Key Case Management Issues
    - Compliance with Timelines:
      - Challenges in adhering to the court’s directives for evidence exchange underscored the procedural rigors of case management.
  - Application of Case Management Principles:
    - The case elucidates the judiciary’s role in enforcing procedural discipline while balancing fairness and judicial economy, pivotal in the context of the Civil Procedure Act and Uniform Civil Procedure Rules.
  - Judicial Observations
    - The trial and appellate levels provided insights into:
      - The necessity of strict compliance with procedural directives.
      - The balance between expedient case resolution and ensuring parties’ rights to a fair hearing.
      - The judicial discretion in managing litigation to conserve resources without compromising justice.
  - Outcome and Implications
    - The appellate review critiqued the initial handling for potentially undermining procedural fairness, illustrating the tension between case management efficiency and substantive justice.
    - Emphasized the importance of procedural compliance, timely litigation management, and the courts’ discretion in applying the Uniform Civil Procedure Rules.
  - Significance for Case Management and Civil Procedure
    - Practical Application:
      - This case serves as a practical case study on the enforcement of procedural rules and the challenges of maintaining judicial efficiency without sacrificing fairness.
    - Jurisprudential Contribution:
      - It contributes to the understanding of case management principles, particularly in balancing the procedural and substantive aspects of legal disputes under the NSW legal framework.
- Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
- Case Background
  - Issue: Refusal to pay an insurance claim based on alleged untruthfulness.
  - Procedural Controversy: Lumley’s attempt to withhold pre-trial disclosure of certain materials, challenging traditional “trial by ambush” concerns.
  - Procedural Challenge
    - Applicants’ Argument:
      - Against the withholding of evidence pre-trial, citing procedural reforms aimed at preventing trial by ambush.
  - Statutory Framework
    - Sections Involved:
      - CPA Sections 56, 57, 58; focus on statutory compulsory considerations for court decision-making.
  - Overriding Purpose
    - Just, Quick, and Cheap Resolution:
      - Emphasis on resolving civil proceedings efficiently without compromising justice or incurring unnecessary expense.
  - Judicial Interpretation
    - Fundamental Considerations:
      - Courts must prioritize statutory considerations in their decision-making process, aligning with the CPA and UCPR’s objectives.
  - Tension in Objectives
    - Balancing Act:
      - Between just resolution and procedural efficiency, navigated through the principle of proportionality.
  - Judicial Powers and Directions
    - Disclosure and Withholding of Evidence:
      - Courts have broad discretion in managing case proceedings, including the timing and nature of evidence disclosure.
  - Implications for Case Management
    - Statutory Guidance:
      - The CPA and UCPR provide a framework for judicial discretion, ensuring case management aligns with broader legal and procedural objectives.
  - Conclusion
    - The case underscores the importance of statutory considerations in case management, illustrating the balance courts must strike between fairness, efficiency, and procedural integrity within the NSW legal framework.
- Policy Issues and Exercise of the Power
  - McGuirk v University of New South Wales [2010] NSWCA 104
  - The court is given power at any time to give such directions and to make such orders for the conduct of any proceedings, whether or inconsistent with the rules of court, for the just, quick and cheap disposal of the proceedings.
  - UCPR 2.1 expands s 61(1) in two important respects:
    - the power is not confined to making directions for the speedy determination of the real issues in
    - the proceedings, but includes a power to make directions or orders as appear convenient for the just, cheap and quick disposal of the proceedings; and
    - the power is to give directions or orders “for the conduct of any proceedings”
  - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
    - Jurisdiction:
      - Supreme Court of the Australian Capital Territory
    - Procedural History:
      - ANU initiated a lawsuit for indemnity against insurers due to fire damage, settling mid-trial and seeking to amend its claim against Aon.
    - Original Dispute:
      - Indemnity claims for fire damage at ANU’s Mount Stromlo Complex.
    - Reason for Trial:
      - To address the indemnity for fire damage and ANU’s subsequent claim against Aon, its insurance broker.
    - Material Facts:
      - ANU settled with insurers and aimed to add a new claim against Aon during the trial.
    - Issue Raised:
      - The appropriateness of ANU’s late trial amendment to include a claim against Aon.
    - Law(s)/Statute(s) in Contention:
      - Rule 21 of the Court Procedures Rules, focusing on the just, quick, and cheap resolution of civil proceedings.
    - Precedences:
      - Examination of previous case management principles and the impact of late amendments on justice and court efficiency.
    - Judicial Opinions:
      - Emphasis on the court’s role in managing cases for the benefit of the entire judicial system, not just the immediate parties, and the necessity of balancing timely justice with procedural efficiency.
    - Legal Reasoning:
      - The court must weigh the justice of allowing amendments against the need to manage cases efficiently, considering the broader impact on the court system and other litigants.
    - Result:
      - The case illustrates the discretionary power of courts to manage proceedings actively, ensuring justice while preventing undue delays and expenses.
    - Relevance to Modern Law:
      - Highlights the evolution of case management principles, stressing the balance between individual case justice and overall judicial efficiency.
- Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing (2013) 250 CLR 30
  - Jurisdiction:
    - High Court of Australia
  - Background:
    - During discovery, Armstrong parties received documents from ERA parties that were inadvertently not marked as privileged.
    - ERA requested their return, claiming privilege, which Armstrong refused, leading to a dispute over whether privilege was waived.
  - Legal Issue:
    - Whether the inadvertent disclosure of privileged documents constituted a waiver of privilege and how the court’s powers under the CPA can address such disputes efficiently.
  - Court’s Analysis:
    - Overriding Purpose:
      - The court emphasized the CPA’s overriding purpose to ensure the just, quick, and cheap resolution of disputes.
      - It criticized the resort to lengthy interlocutory proceedings over the privileged documents as contrary to this purpose.
    - Court’s Powers:
      - Highlighted the broad powers granted by the CPA, particularly under Part 6, to manage discovery issues and correct mistakes without extensive litigation.
      - These powers are aimed at addressing real issues in disputes efficiently.
    - Case Management:
      - Reinforced the importance of case management in civil justice, aiming to reduce delay and cost.
      - The court’s role is to supervise proceedings actively, ensuring disputes are resolved in a manner that benefits the broader administration of justice.
    - Specific Powers:
      - Referenced Section 64 of the CPA, which allows for amendment of documents at any stage to correct errors or defects and avoid unnecessary proceedings.
      - The court suggested that a simple amendment to the List of Documents could have resolved the dispute over the privileged documents.
    - Responsibilities of Solicitors:
      - Stressed the duty of parties and their legal representatives to assist in achieving the CPA’s objectives, indicating that creating disputes over procedural mistakes like inadvertent disclosure does not align with this duty.
  - Conclusion:
    - The High Court’s decision underscores the judiciary’s commitment to the principles of just, quick, and cheap resolution of disputes as enshrined in the CPA.
    - It criticizes unnecessary litigation over procedural errors, advocating for the use of the court’s case management powers to correct such errors efficiently and keep the focus on resolving the substantive issues at hand.
- Tugrul v Tarrants Financial Consultants [No 5] [2014] NSWSC 437
- Background:
  - Ms. Seco’s application for security for costs was dismissed due to improper practice, highlighting issues around interlocutory disputes and their financial impacts on parties.
- Legal Issue:
  - The case underscores the need for proper conduct in interlocutory matters, emphasizing the CPA’s guiding principles for just, quick, and cheap resolution of disputes.
- Court’s Analysis:
  - CPA Section 56:
    - Emphasizes the necessity for parties and their lawyers to cooperate genuinely and promptly to resolve interlocutory issues without resorting to court processes unnecessarily.
  - Case Management and CPA Objectives:
    - Reflects on the broader objectives of case management under the CPA, including avoiding undue technical disputes and facilitating efficient dispute resolution.
  - Solicitors’ Responsibilities:
    - Highlights the positive duty of legal representatives to support the CPA’s purposes, advocating for professional conduct that aligns with the administration of justice.
- Court’s Directions:
  - Professional Conduct:
    - Calls for civility, trust, and mutual respect among legal professionals, discouraging conduct that contradicts these values.
  - Efficient Dispute Resolution:
    - Advises on practical steps for resolving interlocutory issues, such as reasonable information requests, last-resort motions, and focused litigation on real issues.
  - Cost Implications:
    - Warns that the court will use its powers to impose costs on parties or lawyers who engage in conduct contrary to the CPA’s objectives, emphasizing the importance of adhering to s 56 and related provisions.
- Conclusion:
  - This case illustrates the critical role of the CPA and professional conduct rules in guiding the management of legal proceedings.
  - It stresses the importance of cooperation, efficiency, and ethical behavior among legal practitioners to achieve the overarching goals of just, quick, and cheap resolution of disputes, as mandated by the CPA.
- Queensland v JL Holdings Pty Ltd (1997)189 CLR 146
  - Dispute over a lease to develop land. Queensland Minister had approved lease but not endorsed it.
    - Change of government results in new Minister not endorsing lease.
  - JL Holdings challenge decision.
  - After several interlocutory hearings and amendments, the state of Qld apply to amend their defence.
  - Kiefel J refuses leave to add new defence.
  - Qld appeal to Full Court of the Federal Court – unsuccessful.
  - Qld then appeal to High Court – successful.

Week 3: Access to Justice, Open Justice and Client Care

THE PRINCIPLE OF OPEN JUSTICE
- Open Justice
  - R v Richards & Bijkerk (1999) 107 A Crim R 318
    - The court can depart from the principle of open justice in various ways.
    - The court can close the court to the public (ie, the proceedings are held in camera), or it can prohibit publication of all or part of the proceedings
    - The court can also make orders permitting a witness to give evidence behind a screen or via encrypted video-link or closed circuit television from a remote point; such orders can prevent the public and also the litigant/s from identifying a witness by sight and/or sound.
    - The court also has the power to make pseudonym orders to protect the true identity of a witness
  - Legislation
    - The power to make orders to “close” justice can be the subject of specific legislation,
    - s 71 of the CPA permits a judge to close the court to the public (see [1.250]), and the Court Suppression and Non- publication Orders Act 2010 provides for the making of suppression and non-publication orders
- Common law power to depart from the open justice principle
  - Scott v Scott [1913] AC 417 at 437
  - Chief object of the courts of justice must be to secure that justice is done” and that “it may well be that justice could not be done at all if it had to be done in public”
  - John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 16
    - The power to make orders to “close” justice is an inherent power of a superior court, and in statutory courts, the power to make orders that depart from the principle of open justice can be implied as necessary to the proper function of the court
    - The power of the court to depart from the principle of open justice and make the orders described in [1.160] is on the basis that such orders are “really necessary to secure the proper administration of justice” in the proceedings
    - only in “wholly exceptional” circumstances, not merely where such measures would be useful or desirable
    - Attorney- General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 347 per Mahoney JA
      - and would save embarrassment, distress or financial loss:
- Hogan v Hinch (2011) 243 CLR 50
  - Procedural History:
    - Derryn Hinch, a radio broadcaster, was charged in the Magistrates Court of Victoria for contravening suppression orders under the Serious Sex Offenders Monitoring Act 2005 (Vic).
    - These orders prohibited publishing information that could identify certain sex offenders under supervision.
    - Hinch named these persons on his website and at a public rally, challenging the constitutionality of section 42 of the Act as a defense.
  - Original Dispute:
    - The dispute centered on whether section 42, which enabled suppression orders, violated the constitutional mandates regarding the institutional integrity of Victoria’s courts or the implied requirement of court openness.
  - Reason for Trial:
    - Constitutional challenge to the validity of section 42 of the Act.
  - Material Facts:
    - Hinch publicly disclosed identities of sex offenders subject to suppression orders, aiming to contest the orders’ validity based on constitutional grounds.
  - Issue:
    - Whether section 42 undermines the institutional integrity of Victoria’s courts or contravenes the implied constitutional principle of court openness.
  - Law(s)/Statute(s) in Contention:
    - Serious Sex Offenders Monitoring Act 2005 (Vic), particularly section 42, and its compatibility with Chapter III of the Constitution.
  - Precedences:
    - Cited precedents include Daubney v Cooper, Scott v Scott, Russell v Russell, and Forge v Australian Securities and Investments Commission, among others, to discuss the open-court principle and its exceptions.
  - Tests:
    - The Court examined whether the application of section 42 detrimentally affects the institutional integrity of the courts or contravenes the implied principle of open justice under the Constitution.
  - Judicial Opinions and Interpretation:
    - The majority acknowledged the fundamental principle of courts operating publicly to maintain confidence and ensure accountability.
    - Yet, it recognized that the principle is not absolute, allowing for exceptions where necessary to administer justice properly.
    - It was determined that section 42, while imposing restrictions, does not infringe upon the institutional integrity of courts nor the essential characteristics required for the exercise of judicial power.
  - Ratio Decidendi:
    - The High Court found section 42 valid, ruling that it does not impermissibly diminish the courts’ integrity nor contravene the constitutional implication of open justice.
  - Conclusion and Relevance to Modern Law:
    - The decision reaffirms the balance between the principle of open justice and the necessity of certain restrictions to protect the administration of justice.
    - It highlights the courts’ capacity to limit the open justice principle under specific circumstances without undermining their constitutional role.
    - This case is pivotal in understanding the scope of legislative power in imposing constraints on court proceedings and the dissemination of related information, emphasizing the careful consideration required to uphold both transparency and justice.
- Common law categories of cases that are exceptions to the open justice principle
  - Exceptions to the principle of open justice are valid in few categories of cases in the common law.
  - The exceptions are “strictly defined”:
    - R v Tait (1979) 46 FLR 386 at 401;
    - McPherson v McPherson [1936] AC 417 at 200;
    - Russell v Russell (1976) 134 CLR 495;
    - John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 141;
    - John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 353 [19], 357 [45],
    - and courts are loathe to expand the field:
      - Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55.
  - The well-established categories are:
    - to protect the identity of an informer
      - Cain v Glass (No 2) (1985) 3 NSWLR 230;
      - complainants or witnesses will not come forward unless they are given some protection
        
        R v Savvas 1989
    - to protect the identity of victims of blackmail
      - R v Socialist Worker Printers & Publishers Ltd; Ex Parte Attorney-General [1975] QB 637).
    - to protect matters of national security
      - Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 19D per Hunt J
Statutory power to close the court in civil proceedings
- CPA s 71 - closing the court
  - The CPA makes provision for the court to make an order to close the court (s 71) in civil proceedings.
  - s 71 was applied by Barrett J in Re HIH Insurance Ltd [2007] NSWSC 498 to close the court on the application of the liquidators of insolvent HIH companies
  - Re HIH Insurance Ltd [2007] NSWSC 498
    - Application under section 71 of the Civil Procedure Act 2005 for an in-camera hearing regarding directions to liquidators and other litigation-related relief concerning companies in liquidation.
    - Two other public interests competing with the public interest in open justice.
      - The first is the public interest in the due and beneficial administration of the estates of insolvent companies by liquidators appointed by and answerable to the court, that administration being for the benefit of creditors.
      - The second competing or countervailing public interest arises from the fact that applications before me relate to the pursuit of litigation.
        
        There is a clear public interest in the due administration of justice, in that in litigation in the normal course an ordinary litigant would keep close to the chest, as it were, the matters that the liquidators, because of their position, see fit to bring to court.
- Statutory power to make suppression and non-publication orders
  - The Court Suppression and Non-publication Orders Act 2010 (NSW) commenced on 1 July 2011 and provides for the making of suppression and non-publication orders by courts.
  - Sections 7 and 8 set out the power and grounds for making such orders.
  - Rinehart v Welker [2011] NSWCA 403
  - Jurisdiction:
    - New South Wales Court of Appeal
  - Procedural History:
    - The case involved summonses seeking leave to appeal from an order dismissing motions for a stay.
    - Notices of motion sought further orders prohibiting disclosure of information related to the appeals, building upon a suppression order previously granted by Brereton J.
  - Original Dispute:
    - The dispute centred around family disagreements over the governance of a family trust, involving allegations of misconduct by a trustee.
  - Reason for Trial:
    - The appeals and related motions sought to address whether the proceedings should be held confidentially, in line with the confidentiality provisions of a Deed, and whether information related to the appeals should be suppressed.
  - Material Facts:
    - The trustees and beneficiaries sought to keep the appeal proceedings confidential to adhere to the Deed’s confidentiality provisions and argued that public disclosure would undermine the intended confidential dispute resolution process.
  - Issue:
    - Whether a suppression order should be granted under the Court Suppression and Non-publication Orders Act 2010 (CSPO Act) to prevent prejudice to the proper administration of justice by keeping the appeal proceedings confidential.
  - Law(s)/Statute(s) in Contention:
    - Court Suppression and Non-publication Orders Act 2010 (NSW), specifically sections related to the grounds for making suppression orders.
  - Precedences:
    - Cited cases and principles include the importance of the open justice principle, the conditions under which confidentiality can override this principle, and the statutory framework provided by the CSPO Act.
  - Test
    - Necessity
    - Proportionality and Specificity
    - Balancing Interests
    - Temporary vs Permanent
  - Judicial Opinions and Interpretation:
    - The Court of Appeal discussed the balancing act between the principle of open justice and the confidentiality provisions of the Deed, emphasizing that the administration of justice includes encouraging parties to adhere to their agreements for alternative dispute resolution.
    - The Court scrutinized whether the suppression order was necessary to prevent prejudice to the administration of justice, considering the public interest in the conduct of trustees.
  - Ratio Decidendi:
    - The Court concluded that the suppression order was not necessary for the proper administration of justice and that the open justice principle should not be overridden by the confidentiality agreement between the parties, emphasizing that public confidence in the administration of justice is paramount.
  - Conclusion and Relevance to Modern Law:
    - This case underscores the significance of the open justice principle in the judicial process, illustrating the careful consideration courts must give to requests for confidentiality and suppression orders.
      - It highlights the judiciary’s role in ensuring that justice is administered openly and transparently, except in exceptional circumstances where confidentiality is deemed necessary to prevent prejudice to the administration of justice.
    - The decision reinforces the notion that agreements between parties to resolve disputes confidentially do not automatically warrant suppression of court proceedings.
- X” v Sydney Children’s Hospitals Specialty Network [2011] NSWSC 1272
  - Jurisdiction:
    - New South Wales Supreme Court
  - Procedural History:
    - The Plaintiff sought an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) to prohibit the publication of her name and other identifying information, including that of her family members, to protect her privacy and psychological well-being in litigation against the Sydney Children’s Hospitals Specialty Network.
  - Original Dispute:
    - The dispute involves a legal action against the Sydney Children’s Hospitals Specialty Network, with the specific details of the claim not provided in the extracted summary.
  - Reason for Trial:
    - Application for a pseudonym order to protect the Plaintiff’s identity due to her vulnerability and psychiatric condition.
  - Material Facts:
    - The Plaintiff, represented by Ms. Sant, Junior Counsel, argued for the necessity of a pseudonym order based on the potential psychological harm and prejudice to the administration of justice that could arise from public disclosure of her identity.
    - The application was supported by the Plaintiff’s psychiatric condition and the potential for exacerbation of her symptoms if identified publicly.
  - Issue:
    - Whether a suppression order to prevent the publication of the Plaintiff’s identifying information is necessary to protect her psychological safety and ensure the proper administration of justice.
  - Law(s)/Statute(s) in Contention:
    - Court Suppression and Non-publication Orders Act 2010 (NSW), especially sections 7 and 8 regarding the grounds for making suppression orders.
  - Precedences:
    - Cited cases include litigation involving HIV-infected individuals and fertility cases, highlighting the court’s willingness to grant pseudonym orders in cases of particular sensitivity to protect plaintiffs from stigma or embarrassment.
  - Judicial Opinions and Interpretation:
    - Adamson J accepted the necessity of a pseudonym order to minimize harm to the Plaintiff and avoid prejudicing the administration of justice.
    - The judgment emphasized the minimal interference such orders have on the principle of open justice, balanced against the need to protect vulnerable individuals’ rights to pursue legal remedies without undue harm.
  - Ratio Decidendi:
    - The Court determined that a pseudonym order was necessary to protect the Plaintiff’s psychological safety and prevent prejudice to the proper administration of justice, considering the potential harm that could arise from public disclosure of her identity.
  - Conclusion and Relevance to Modern Law:
    - This case underscores the court’s discretion to issue suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect individuals’ privacy and psychological well-being in sensitive cases.
    - It highlights the balance between the public interest in open justice and the need to protect vulnerable parties from the potential negative impacts of litigation on their mental health and personal life.
    - The decision sets a precedent for the consideration of pseudonym orders in similar cases where disclosure of a plaintiff’s identity could cause significant distress or harm.
- A v Bird; C v Bird [2015] NSWSC 570
  - Procedural History:
    - The proceedings involve two sets of claims against the alleged offender for sexual assault on children, with additional claims against the conduct of a child care center.
    - The plaintiffs, including the mothers of the children, seek damages for psychological injuries resulting from the alleged assaults.
  - Original Dispute:
    - The core dispute centers around allegations of sexual assault committed by the defendant against children in a childcare setting, with subsequent negligence claims against the childcare center and psychological injury claims by the mothers.
  - Reason for Trial:
    - Application for suppression orders to protect the identities of the alleged child victims and their mothers in litigation related to sexual assault claims.
  - Material Facts:
    - The case involves sensitive allegations of sexual assault against children, with the plaintiffs seeking suppression orders under the Court Suppression and Non-Publication Orders Act to prevent the publication of their identities to protect their safety and well-being.
  - Issue:
    - Whether suppression orders should be granted to protect the identities of the plaintiffs and the children involved in the proceedings, considering the sensitive nature of the allegations and the potential impact on the victims.
  - Law(s)/Statute(s) in Contention:
    - Court Suppression and Non-Publication Orders Act, particularly sections related to the grounds for making suppression orders, and the Children (Criminal Proceedings) Act, regarding the protection of child victims’ identities.
  - Precedences:
    - The judgment references principles established in prior cases, including the importance of protecting individuals, especially children, involved in litigation from unnecessary harm and distress.
    - The Court also considers legislative intentions to safeguard child victims’ identities in sexual assault cases.
  - Judicial Opinions and Interpretation:
    - McCallum J emphasizes the need to balance open justice with the protection of vulnerable individuals involved in litigation.
    - The Court acknowledges the legislative framework designed to protect child victims’ identities and extends these considerations to the circumstances of the case at hand.
  - Ratio Decidendi:
    - The Court decides that it is appropriate to grant suppression orders to protect the identities of the plaintiffs and the involved child in the second proceedings, aligning with legislative intentions and judicial principles aimed at safeguarding vulnerable parties in sensitive cases.
  - Conclusion and Relevance to Modern Law:
    - This case highlights the judiciary’s role in protecting vulnerable individuals, especially children, in legal proceedings involving sensitive allegations.
    - It illustrates the application of suppression orders to balance the principle of open justice with the need to prevent harm to individuals whose identities might be exposed in the course of litigation.
    - The decision reinforces the importance of considering the welfare of child victims and their families in judicial decision-making.

Week 4: Alternative Dispute Resolution (ADR), Jurisdiction, and Limitation Periods

Alternative Dispute Resolution (ADR)
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 7.2 (r 36 for barristers)
  - Accordingly, it falls to the lawyer to educate the client as to the options for dispute resolution
    - A practitioner must inform the client or the instructing practitioner about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the practitioner believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation
  - Alternative Dispute Resolution ADR Def
    - an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them
    - AKA Appropriate Dispute Resolution
    - Mediation Referral Index def
      - records the number of cases referred to mediation compared to the number of cases lodged with the court that are suitable for mediation.
  - Play to Win (Legal Negotiations Are a Zero-Sum Game)
    - Legal negotiations are about winning and playing to win.
      - Playing to win means regarding negotiation as a zero-sum game
        
        A zero-sum game is a conception of bargaining in which one side’s loss is the other side’s gain
      - When information is only about winning, a culture of secrecy and non- disclosure develops in legal negotiations that borders on the paranoid.
      - Disclosure is giving away an advantage
  - ADR vs Court
    - ADR
      - The adversarial system’s disadvantages, such as delay and cost, support the use of ADR
      - ADR is friendlier to both sides, especially parties with ongoing commercial relationships
    - Court
      - The courts wield the power of the State,
      - they interpret the laws,
      - ensure procedural fairness and render binding decisions in public that authoritatively state the law for the parties and society at large
  - Why companies often litigate
    - Generally, companies tend to litigate rather than employ ADR when:
      - (a) an important principle is involved, eg, the credibility of one’s product;
      - (b) there is a need for legal precedent;
      - (c) there is a need to send a message to the marketplace;
      - (d) settlement would open the floodgates to frivolous litigation;
      - (e) the claim is so large that the “discipline of litigation” is called for;
      - (f) the claim is bogus, eg, the business organization is in the case solely because of its deep pockets, or perhaps because it made a product in the chain of distribution even though the product had nothing to do with the alleged harm;
      - (g) the law is heavily weighted in its favour …;
      - (h) senior management is unalterably opposed to settlement;
      - (i) there are multiple parties such that consensus on settlement will be difficult to achieve.
  - Role of lawyers
    - Obligation to use ADR as a precondition to litigation;
    - Advising clients on ADR methods;
    - Structuring a dispute resolution process for a particular client or dispute;
    - Drafting and advising on ADR provisions agreements;
    - Preparing information to be used in a dispute resolution process;
    - Attending ADR processes and possibly participating;
    - Preparing or advising on the legality or enforceability of ADR agreements; and
    - Explaining rules and limitations of confidentiality in ADR processes.
  - Legal Pathways to ADR
    - ADR & overriding purpose (s 56).
    - Court litigation is a step of last resort (supported by r 7 of Solicitors’ Conduct Rules).
    - Different pathways to litigation:
      - Ordered pursuant to CPA;
      - Subject-specific legislative requirements for ADR (see NSWLRC, CP 16, Appendix A);
      - Outside of legislation/court process;
      - Contractually required (e.g. dispute resolution clause in some commercial agreements); and
      - Government complaints processes.
    - Timing of ADR:
      - Parties engage in ADR prior to commencing litigation; and/or
      - Parties participate in court-ordered ADR once litigation has commenced.
  - Powers of the Court to refer matters to ADR
    - s 26 of the CPA:
      - ‘(1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned.
    - s 38 of the CPA:
      - ‘(1) The court may order that p dings before it:
        
        (a) in respect of a claim for the recovery of damages or other money, or
        
        (b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damagesor other money, be referred for determination by an arbitrator. ’
    - r 20.14 of the UCPR: ’
      - (1) At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the preceedings. ’
  - Mediation under the CPA
    - Embedded in Part 4 of the CPA.
    - s 25 defines mediation.
    - List of considerations court can take account of in deciding whether or not to refer a matter:
      - the prospects of success in mediation;
      - whether or not there have been previous attempts at settlement;
      - whether or not there is opposition from one or both parties;
      - the complexity of the factual and legal issues;
      - Court resources and the resource implications for the parties; public interest consiclerations;
      - and the capacities and needs of the parties.
    - s 34(a):
      - Part 4 of the CPA does not prevent ‘the parties to proceedings from agreeing to and arranging for mediation of any matter otherwise than as referred to in this Part…’
  - Features of mediation under the CPA & UCPR
    - r 20.6(1) of the UCPR:
      - referral has the effect of requiring parties to a dispute to participate in mediation.
    - r 20.6(2):
      - with leave of the court or mediator, this attendance can be by way of a telephone, video link or other form of communication;
    - s 27 of the CPA:
      - parties have a duty to participate in good faith.
      - At a minimum this usually requires listening to the other side, considering their proposals and having some proposals of your own;
      - Subject to the rules and any relevant practice notes, a mediator may, by order, give directions as to the preparation for, and conduct of, the mediation
    - r 20.20(2)(b):
      - the rules of evidence don’t apply;
    - s 30:
      - the mediation session and the documents used in it are privileged and aren’t admissible in proceedings.
      - Similarly, s 31 says that the mediator can only disclose information from a mediation session in a limited number of circumstances;
    - r 20.5:
      - ‘The parties and the mediator must conduct the mediation with the object, so far as practicable, of completing the mediation within 28 days’;
    - s 28:
      - the costs of mediation are borne by the parties themselves.
  - Arbitration under the CPA
    - Embedded in Part 5 of the CPA.
    - Features of court-referred arbitration:
      - s 37 of the CPA gives the jurisdiction of the arbitrator.
        
        Sub-section 2): ‘without limiting the specific powers and authorities of an arbitrator under this Part, an arbitrator has and may exercise, in relation to referred proceedings, all of the functions of the court by which the proceedings were referred’;
      - s 39(4): ‘An arbitrator may not make a determination that could not have been made had the proceedings been heard and determined by the referring court. ’
  - Features of arbitration under the CPA
    - s 48:
      - a party has the same right to representation by a solicitor and/or barrister and the same right to examine and cross-examine witnesses as would be the case in the referring court;
    - s 49:
      - ‘(1) Subject to this Act and any directions given by the referring court, the procedure at an arbitratio is to be determined by the arbitrator.
      - (2) Subject to the rules o evidence, an arbitrator must act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms’;
    - s 40:
      - the judgement of the arbitrator is taken to be a judgment of the court, and can be enforced as such;
    - s 54,
      - an arbitrator can make costs orders for the arbitration proceedings.
    - Note option of rehearing: CPA ss 42-47
- Negotiation
  - Negotiation keywords
    - Position: what a person says they want – a demand e.g. ‘I want $1,000,000 in damages for a breach of contract’ is a position.
    - Interest: why the person has that position – the need, desire, fears or concerns behind the demand e.g. ‘I want the $1,000,000 because I need to shore up my business and be in a position to take future orders.’
  - Negotiation styles
    - Positional negotiation:
      - based on parties’ respective positions or claims;
      - linear and reciprocal concession-making moving towards a compromise;
      - adversarial and potentially damages relationships.
    - Interest-based negotiation:
      - exploring and satisfying interests of each party;
      - can be hard work;
      - test assumptions;
      - inclusion, participation, being heard and valued.
    - Constructive/reflexive negotiation:
      - Blending and balancing P and I-B approaches;
      - Zero sum game vs mutual gain and producing additional value and gain;
      - Closed and fixed versus open, flexible and reflective. 15
- Jurisdiction – an introduction
  - In simplest terms, jurisdiction is the authority to decide.
    - Jurisdiction is inextricably linked to the rise of the modern nation-state in the aftermath of the Peace of Westphalia.
  - The nation state is characterised by sovereignty, of which jurisdiction is a legal consequence.
  - Two species of jurisdiction
    - 1. Subject matter jurisdiction:
      - the nature of the disputes which may be adjudicated by a particular court e.g. the Local Court is not going to possess subject matter jurisdiction to deal with murder.
    - 1. Territorial jurisdiction:
      - this specifies the person or bodies over whom the court may exercise jurisdiction i.e. people or subjects within it territory.
    - A court must possess both in order to exercise judicial power over a person/entity.
  - Subject matter jurisdiction
    - s 23 of the Supreme Court Act 1970 (NSW):
      - ‘The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.’
    - Supreme Court divided into two main divisions:
      - the Common Law Division, which deals with civil, criminal and administrative law matters; and
      - the Equity Division hears cases involving commercial law, corporations law, equity, trusts, probate and matters pursuant to family provisions legislation.
    - Subject matter jurisdiction capable of being altered by statute.
    - Superior courts inherent jurisdiction is also an aspect of its subject matter jurisdiction.
  - Territorial jurisdiction
    - There are three ways in which territorial jurisdiction can be satisfied:
      - Physical presence in the territory of jurisdiction e.g. the defendant is in NSW. See Laurie v Carroll (1958) 98 CLR 310;
      - Voluntary submission to jurisdiction – a particular person or entity has voluntarily agreed to submit to the jurisdiction of the NSW Supreme Court; and
      - Statutory extension of territorial jurisdiction e.g. with the agreement of other nation states through treaties, the inclusion of extra-territorial clauses in Acts etc
  - Cross-vesting scheme
    - Jurisdiction in federal states like Australia can often be confused, overlapping and duplicate.
    - Two essential features of the cross-vesting scheme:
      - It invests or confers the original and appellate jurisdiction of each of the participating courts in or on each of the other participating courts (with some exclusions);
    - 1. It provides a mechanism for the transfer of specific proceedings to the best suited court.
    - NB – Re Wakim; Ex Parte McNally (1999) 198 CLR 511 rendered the conferral of state jurisdiction on federal courts under the original scheme invalid.
    - Relevant legislation:
      - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and
      - the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
- Transferring proceedings between courts
  - Discussing s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW):
    - ‘Section 5(1) provides for the transfer of proceedings from the Supreme Court to the Federal Court or Family Court;
    - s 5(2) provides for the transfer of proceedings from the Supreme Court to the Supreme Court of another State or Territory;
    - s 5(3) for the transfer of proceedings in the Supreme Court of another State or Territory to the NSW Supreme Court;
    - s 5(4) for the transfer of proceedings from the Federal or Family Court to the Supreme Court
- Three considerations in transferring proceedings – s 5 Cross-Vesting Act
  - 1. Whether, apart from the cross-vesting scheme ‘the relevant proceeding or a substantial part of it’ would have been incapable of being instituted in the court in question
    - i.e. would the chosen Court have had the capacity to hear the dispute in the absence of the cross-vesting legislation;
  - 1. The extent to which the case involved an issue of ‘the application, interpretation or validity of a law’ of the receiving court; and
  - 1. The interests of justice.
- The interests of justice
  - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 establishes that the interests of justice are broader than the interests of one party – rather, it involves weighing the interests of all the parties.
  - Some relevant considerations include:
    - the place/places where the parties and/or witnesses reside or carry on business;
    - the location of the subject matter of the dispute;
    - the importance of local knowledge to the resolution of the issues;
    - the law governing the relevant transaction;
    - the procedures available in the different courts;
    - the likely hearing dates in the different courts;
    - whether it is sought to transfer the proceedings to a specialised court, for example, the Family Court; and
    - is there an exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes?
Limitation periods
- Limitation statutes impose a time limit within which you must commence proceedings for a cause of action.
  - Some reasons for limitation periods:
    - The ability to administer justice can degrade over time e.g. memories fade, witnesses move away/die etc;
    - We value certainty and timeliness in proceedings.
      - See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
    - But, note critiques of limitation periods in relation to historical injustices.
  - Key piece of legislation in NSW: Limitation Act 1969 (NSW).
- Some common limitation periods
  - From the Limitation Act 1969 (NSW):
    - s 14(1)(a): for most breaches of contract, six year limitation period.
    - s 14(1)(b): six year limitation period for most species of tort.
    - s 27(2): twelve year limitation period in cases involving the recovery of land for people other than the Crown..
    - s 50C(1): in cases of personal injury, three years post discovering the cause of action, or twelve years in the event you don’t discover it, whichever expires first
- [l]awyers may use ADR not for the accomplishment of a ‘better’ result, but as another weapon in the adversarial arsenal to manipulate time, methods of discovery, and rules of procedure for perceived client advantage”
- TYPES OF ADR PROCESSES
  - Facilitative dispute resolution processes
    - are processes in which a dispute resolution practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute.
    - Examples of facilitative processes are mediation, facilitation and facilitated negotiation.
  - Advisory dispute resolution processes
    - are processes in which a dispute resolution practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these may be achieved.
    - Advisory processes include expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.
  - Determinative dispute resolution processes
    - are process in which a dispute resolution practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination.
    - Examples of determinative dispute resolution processes are arbitration, expert determination and private judging.
  - Combined or hybrid dispute resolution processes
    - are processes in which the dispute resolution practitioner plays multiple roles.
    - For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute.
    - In hybrid processes, such as med- arb, the practitioner first uses one process (mediation) and then a different one (arbitration).
Negotiation
- The distinguishing feature of negotiation, compared to the other forms of dispute resolution that will be examined, is that negotiation involves no third party whose role is to facilitate, advise or determine the resolution of the dispute.
- advantages and disadvantages of negotiation.10
  - The main advantages are:
    - it is very flexible and can be conducted by parties and/or by lawyers;
    - it is relatively cost effective, as only a limited amount of special preparation may be required;
    - clients retain complete control of the outcome through conducting the process themselves
    - or by giving instructions to their lawyer and the need for their approval of any agreement reached.
  - The main drawbacks are:
    - success depends to a significant extent on how well the dispute has been researched and analysed;
    - success can depend on the skill of the negotiator, and the strategy and tactics employed;
    - negotiation may lead to a weak or poor outcome for a person if the strengths of a case are not properly exploited;
    - the informality of negotiation can lead to confusion over the process;
    - a negotiation may fail if party expectations are unrealistic, or the parties are too entrenched in their positions.
  - Types of negotiation
    - Positional negotiation
      - tends to focus on what a person wants as compared to interest-based negotiation which focuses on why they want it.
      - Everyone wants a piece of the orange
    - Interests negotiation
      - why the person wants a particular outcome thus encompassing needs, desires, fears and concerns which can be reflected in both the substance of the dispute as well as the procedure
      - One party wants orange skin and the other flesh,
        
        More efficient
MEDIATION
- Mediation is the most widely used form of ADR.
  - It involves a facilitated negotiation aimed at reaching an agreement.
  - A neutral third party (the mediator) assists and facilitates an agreement between the parties.
- Role of the lawyer
  - Scale of Lawyer’s role - Less to Most involvement scale
    - Absent advisor
      - assists the client to prepare for the mediation but does not attend the mediation session itself.
    - Advisor observer
      - support the client to participate effectively in the process.
      - performs the same role as the absent advisor, but the lawyer attends the mediation.
    - Expert contributor
      - performs all of the tasks of the advisor observer.
      - lawyers engage with one another during the mediation about the legal issues, that is, views on the applicable
    - Supportive professional participant
      - Works with the client to prepare for the mediation and supports the client through the mediation process, by working collaboratively towards an acceptable outcome.
      - The lawyer and client work as a team
    - Spokesperson
      - speaks on behalf of her or his client throughout the mediation
- Mediation models
  - Advisory processes are those in which the mediator is not independent of the content of the dispute
    - can give information and advice as to the range of likely court outcomes if the case proceeds to court and will actively encourage the participants to reach an agreement within this anticipated range.
  - facilitative mediation model
    - where parties need to be committed to settlement and able to generate their own options and solutions.
- Position statements
  - Takes place prior to mediation
  - Format
    - plain English that can be understood by the parties and the mediator;
    - clear and concise expression;
    - logically ordered with headings and use of bullet points;
    - respectfully worded;
    - persuasive.
      - This is an opportunity to communicate directly with an opponent and a mediator.
  - Elements
    - Heading:
      - it should be headed up with the names and description of the parties (eg, plaintiff, lessor or sub- contractor) and marked “Without Prejudice and for use in the Mediation only”.
    - Formalities:
      - it should also include the date and time of the mediation, the name of the mediator, a list of the individuals attending the mediation on behalf of the party on whose behalf the statement is made, and their connection with the dispute
    - Issues:
      - it should identify the issues in the case, both legal and factual.
      - The statement should also identify the key issues that are of vital importance to the parties at the date of the mediation
    - Outline of the party’s case on issues:
      - the statement needs to clearly set out the party’s position in relation to each of the issues
      - The statement may make brief reference to statements of case, key documents or evidence, and matters of law that support the party’s position
    - The party’s interests and objectives:
      - the key objectives that the party wants to achieve at the mediation should be identified.
- Duty to act in good faith
  - S 27
  - Waterhouse v Perkins [2001] NSWSC 13
  - The procedure in a mediation session requires that a person who attends the mediation has authority to settle the proceedings and they may attend with legal representatives:
    - UCPR r 20.6
  - Statements made in the course of mediation are protected (as they are in judicial proceedings) in that they cannot give rise to an action in defamation:
    - CPA s 30
  - A mediator cannot disclose information obtained in the mediation unless authorised by the CPA:
    - s 31
- Higgins v Higgins [2002] NSWSC 455
  - Procedural History:
    - Application to the Supreme Court for compulsory mediation by the plaintiff, opposed by the defendants.
  - Original Dispute:
    - Concerns property in Camden, resided in by the plaintiff (mother of the first defendant and mother-in-law of the second defendant) since 1982.
    - The property was originally purchased by a company associated with the defendants, which later went into liquidation.
    - The defendants then transferred the property to their names, leading to the plaintiff seeking declaratory relief to recognize her contribution and establish a trust in her favor.
  - Reason for Trial:
    - The dispute revolves around the plaintiff’s claim for recognition of her contribution towards the purchase of the property and the assertion that the property is held in trust for her.
  - Material Facts:
    - The property was acquired in the name of a company associated with the defendants, which later went into liquidation.
    - The plaintiff claims to have contributed to the purchase money.
  - Issue Raised:
    - Whether the plaintiff has a proprietary interest in the property due to her contribution towards its purchase.
  - Law/Statute in Contention:
    - Trust law principles and the plaintiff’s alleged contribution towards the purchase of the property.
  - Precedences:
    - Reference to Morrow v chinadotcom Corp [2001] NSWSC 209, Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427, and Remuneration Planning Corporation Pty Ltd v Fitton [2001] NSWSC 1208 regarding compulsory mediation.
  - Judicial Opinions and Interpretation:
    - Justice Austin considered the evolving approach to compulsory mediation, highlighting the discretionary power of the court under s 26 of the Civil Procedure Act to refer proceedings to mediation, with or without consent of the parties, especially when emotional or irrational considerations might be affecting the parties’ resolution approach.
  - Legal Reasoning:
    - The discretion under s 26 of the Civil Procedure Act is broad, allowing the court to take all relevant circumstances into account when considering mediation.
    - In this case, the plaintiff’s deteriorating health and desire to reconcile the family were deemed significant.
  - Ratio Decidendi:
    - The court has a wide discretion to order mediation in circumstances where it believes mediation might be successful, even if one party is opposed to it.
    - The specific circumstances of the case, including the plaintiff’s health and the potential for family reconciliation, were pivotal in deciding to order mediation.
  - Conclusion:
    - The court ordered the proceedings to be referred for mediation, highlighting the importance of attempting to resolve disputes through mediation before proceeding to a contested hearing, particularly in cases where family relationships might be further strained by litigation.
    - This decision emphasizes the court’s preference for dispute resolution methods that preserve family relationships and the wide discretion it has in ordering mediation.
  - Relevance to Modern Law:
    - This case demonstrates the judiciary’s growing inclination towards alternative dispute resolution methods, especially in family and property disputes where relationships might be preserved or restored.
    - It underscores the evolving legal landscape where courts actively encourage parties to engage in mediation, reflecting a broader shift towards less adversarial dispute resolution mechanisms.
- Waterhouse v Perkins [2001] NSWSC 13
  - Procedural History:
    - The plaintiff initiated two defamation actions related to the publication of “The Gambling Man,” filed in 1991 and 1996, respectively.
    - Defendants requested compulsory mediation, which the plaintiff refused.
  - Issue Raised:
    - Whether the court should order compulsory mediation in defamation cases, especially considering the plaintiff’s desire for public vindication.
  - Law/Statute in Contention:
    - Section 26 of the Civil Procedure Act (formerly s 110K of the Supreme Court Act), granting the court the discretion to order mediation without parties’ consent.
  - Judicial Opinions and Interpretation:
    - Levine J emphasized the court’s power under the CPA to order mediation without consent and the duty of parties to participate in good faith.
    - The judge rejected the notion that mediation could not achieve vindication for the plaintiff, suggesting it’s a possibility if conducted in good faith.
  - Legal Reasoning:
    - The court considered the significant time elapsed since the actions were initiated, the expected length and cost of a jury trial, and the potential for mediation to address not just “rights” but “interests and needs” of the parties.
    - The argument that mediation cannot provide vindication was deemed overly simplistic.
  - Ratio Decidendi:
    - Compulsory mediation can be ordered in defamation cases, considering the lengthy litigation process, potential cost savings, and the possibility of achieving a form of vindication through mediation.
  - Conclusion:
    - The court ordered the proceedings to be referred for mediation, highlighting the benefits of exploring resolutions outside of traditional trial settings, even in complex defamation cases where vindication is a key concern.
  - Relevance to Modern Law:
    - This decision underscores the judiciary’s broad discretion in directing parties towards mediation, even in defamation litigation, to potentially save on costs and court time while also addressing the parties’ interests and needs in a more flexible manner.
    - It emphasizes the evolving approach to resolving disputes through alternative dispute resolution mechanisms, even in cases where public vindication is a significant factor.
ARBITRATION
- Arbitration
  - A quasi-judicial process
  - The dispute is submitted to a third party (an arbitrator) who renders a binding determination (an award
- Re Carus-Wilson & Greene (1886) 18 QBD 7,
  - determinative feature of an arbitration as being an “inquiry in the nature of a judicial inquiry”
- Arbitration elements
  - Arenson v Casson Beckman Rutley & Co [1977] AC 40
    - (a) there is a dispute or a difference between the parties which has been formulated in some way or another;
    - (b) the dispute or difference has been remitted by the parties to the person to resolve in such a manner that he is called upon to exercise a judicial function;
    - (c) where appropriate, the parties must have been provided with an opportunity to present evidence and/ or submissions in support of their respective claims in the dispute; and
    - (d) the parties have agreed to accept his decision
  - arbitrator does not have power to compel witnesses, issue subpoenas or punish for contempt.
    - If conduct giving rise to such issues occurs in the arbitration, this must be referred back to the court: see CPA ss 50, 52 and 53
- MacDougall v Curleveski (1996) 40 NSWLR 430
  - Costs may be ordered against a party who makes a tactical decision not to call available evidence at the arbitration that is then called at a rehearing.
  - In such circumstances, the court may order costs against that party
COMMERCIAL ARBITRATION ACT 2010 (NSW)
- Commercial Arbitration Act 2010 (NSW) which applies to domestic commercial arbitration.
  - International commercial arbitration is governed by the International Arbitration Act 1974 (Cth).
- To refer disputes to arbitration and for an arbitral tribunal to be constituted there must be a valid and binding arbitration agreement.
  - ss 7 & 8
- John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
  - Procedural History:
    - John Holland Pty Ltd initiated proceedings against KBR and Atlantis for damages and indemnity due to subsidence in the AMC car park, despite both contracts containing arbitration agreements.
    - KBR and Atlantis requested the court to refer the matter to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW).
  - Original Dispute:
    - Concerns around subsidence observed in the AMC car park 3.5 years post-construction, potentially linked to nearby construction activities by Laing O’Rourke.
  - Reason for Trial:
    - Determination of whether John Holland’s claims should proceed through court litigation or be referred to arbitration per the agreements.
  - Material Facts:
    - Subsidence in AMC car park leading to legal action against KBR and Atlantis, who were contracted for design and stormwater detention facilities, respectively.
  - Issue Raised:
    - Whether the disputes fall within the arbitration agreements’ scope and if court proceedings constitute an alternative dispute resolution process under the contract.
  - Law/Statute in Contention:
    - Commercial Arbitration Act 2010 (NSW), specifically s 8(1) regarding court’s obligation to refer parties to arbitration if a dispute is covered by an arbitration agreement.
  - Judicial Opinions and Interpretation:
    - Justice Hammerschlag emphasized the broad interpretation of arbitration clauses and the legislative intent to minimize judicial intervention, ensuring commercial parties’ decisions to arbitrate are upheld.
  - Legal Reasoning:
    - The disputes were deemed to arise from contract performance, making them subject to arbitration agreements.
    - The discussion of court litigation as an alternative dispute resolution during a conference did not alter this.
  - Ratio Decidendi:
    - The court must refer disputes to arbitration when covered by an arbitration agreement, upholding the autonomy of commercial agreements and minimizing judicial intervention.
  - Conclusion:
    - The court ordered the disputes to arbitration, demonstrating the enforcement of arbitration agreements and the preference for arbitration in resolving commercial disputes.
  - Relevance to Modern Law:
    - This case underscores the importance of arbitration as a dispute resolution mechanism in commercial contracts and the judiciary’s role in enforcing arbitration agreements, affirming the commitment to contractual autonomy and the efficient resolution of disputes.
- Cave v Allen Jack and Cottier Pty Ltd [2014] NSWSC 1365
  - Jurisdiction:
    - New South Wales Supreme Court - Binding in NSW.
  - Procedural History:
    - The plaintiff sought to refer the entirety of the proceedings to a referee under Rule 20.14, aimed at ensuring the just, quick, and cheap resolution of disputes.
  - Original Dispute:
    - Actions for breach of contract and negligence involving the construction of a home.
    - The plaintiff, a homeowner, sued the architect, structural engineer, and builder associated with her home’s design and construction.
  - Reason for Trial:
    - To resolve disputes regarding breach of contract, negligence, the scope of necessary rectifying works, and associated costs.
  - Material Facts:
    - Construction issues with a home on the Central Coast, designed and constructed around the turn of the century, leading to claims for rectification.
  - Issue Raised:
    - The suitability of referring the entire proceedings to a referee, given the technical, legal, and factual complexities involved.
  - Law/Statute in Contention:
    - Application of Rule 20.14 for referral to a referee, considering the case’s intricacies and the potential for expedited, cost-effective resolution.
  - Precedences:
    - Reference to Ritchie’s Uniform Civil Procedure New South Wales on the discretionary nature of Rule 20.14.
  - Judicial Opinions and Interpretation:
    - Campbell J considered the benefits of referral to a referee, such as speed and flexibility, against potential drawbacks like lack of finality and legal complexities.
  - Legal Reasoning:
    - The court found that referring the entire proceedings to a referee would best serve the overriding purpose of achieving a just, quick, and cheap resolution, given the specific circumstances of the case.
  - Ratio Decidendi:
    - The entire proceedings were referred out to a referee, recognizing the advantages of such a process in this particular case, including the potential for a more expedient and cost-effective resolution
  - Conclusion:
    - The court ordered the referral of the whole proceedings to a referee, likely a retired judicial officer experienced in construction and technology cases, to handle the case’s complexities more efficiently than a traditional court setting.
  - Relevance to Modern Law:
    - This decision highlights the court’s willingness to utilize alternative dispute resolution mechanisms, like referral to referees, to manage cases involving technical expertise outside the conventional judicial process, promoting efficiency and reducing legal costs.
- EXPERT DETERMINATION
  - Expert Determination def
    - a process in which the participants to a dispute present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert) and who makes a determination.
    - Expert determination may be compared with expert appraisal.
      - The former is binding on the parties, while the latter provides advice on the facts, possible outcomes and procedures to achieve the outcomes but it is not binding on the parties.
    - Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646
    - Advantages and disadvantages
      - can be designed and agreed to by the parties.
      - No pleadings, discovery, or hearing
Before a Civil Action
- JURISDICTION
  - If the plaintiff seeks equitable relief then it can only be granted by the Supreme Court, however, the District Court has some equitable jurisdiction
  - If a party seeks a legislative remedy then it must sue in the court or tribunal specified by the legislatio
- Cross Vesting Legislation
  - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
  - permitted the transfer of cases in another court within the scheme, if that court was the most appropriate court
  - Re Wakim Ex parte McNally (1999) 198 CLR 511, the constitutional validity of the cross- vesting legislation was challenged and a part of the scheme was held to be invalid.
    - The High Court held the scheme was invalid to the extent that it gave State jurisdiction to federal courts.
    - Put another way, State Acts cannot confer jurisdiction in State matters on the Federal Court and Family Court.
      - cannot give the Federal Court or the Family Court the authority to decide on matters that are under the jurisdiction of the state.
    - However, the provisions in the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) relating to conferral of federal jurisdiction on State court
  - The cross- vesting scheme was amended after Wakim and now only provides:
    - conferral of federal jurisdiction on State courts (s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth));
    - cross- vesting of State jurisdiction among State courts (eg, s 4 of the Jurisdiction of Courts (Cross- vesting) Act 1987 (NSW)); and
    - transfer of proceedings between courts participating in the scheme (s 5 of the Jurisdiction of Courts (Cross- vesting) Act 1987 (NSW)).
      - This transfer is to the most appropriate court.
      - Transfer is possible if both the transferring court and the court to which it is sought to transfer the proceedings have jurisdiction.
  - BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400
    - Procedural History:
      - Trevor Schultz sued BHP for negligence, breach of contract, and breach of statutory duty in the Dust Diseases Tribunal of New South Wales (the Tribunal) concerning asbestos-related diseases.
      - BHP sought to transfer the case to the Supreme Court of South Australia.
      - The Supreme Court of NSW, per Justice Sully, refused the transfer. BHP appealed to the High Court.
    - Original Dispute:
      - Schultz alleged harm from asbestos exposure, implicating BHP and others in negligence and other violations.
    - Reason for Trial:
      - The appeal focused on whether the proceedings should be transferred from NSW to South Australia, under the Cross-vesting Act, in the interests of justice.
    - Material Facts:
      - Schultz was a South Australian resident.
      - BHP operated in both South Australia and NSW. Conflicting claims about where the asbestos products were supplied and the appropriate jurisdiction for the trial emerged.
    - Issue:
      - Whether the case should be transferred to South Australia, considering jurisdictional claims and the interests of justice under the Cross-vesting Act.
    - Laws/Statutes in Contention:
      - Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
      - Dust Diseases Tribunal Act 1989 (NSW), particularly s 11A
    - Precedents:
      - Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (English common law on forum non conveniens)
      - Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 (Australian common law on forum non conveniens)
    - Judicial Opinions and Interpretation:
      - The majority in the High Court found Sully J’s refusal to transfer was materially erroneous.
      - The decision to not transfer did not adequately consider the interests of justice under the Cross-vesting Act, improperly weighting the plaintiff’s choice of forum and the unique advantages of the NSW Tribunal’s section 11A.
      - The case was remitted for further consideration.
    - Kirby, Hayne, Callinan, and Heydon JJ provided separate judgments, all concluding that the Supreme Court of South Australia was the appropriate forum, ordering the transfer of proceedings.
    - Legal Reasoning and Ratio Decidendi:
      - The High Court’s decision clarified the application of the Cross-vesting Act, distinguishing it from the forum non conveniens doctrine.
        
        doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case
      - It emphasized that the interests of justice, rather than the plaintiff’s choice or specific procedural advantages of a particular court, should dictate forum selection.
    - Conclusion and Relevance to Modern Law:
      - This case is significant for its exploration of the principles governing cross-vesting of jurisdiction between state courts in Australia.
      - It underscores the flexibility and purpose of the Cross-vesting Act to ensure that legal disputes are resolved in the most appropriate forum, reflecting a nuanced approach to jurisdictional issues and the efficient administration of justice.
  - BHP - Factors which could be relevant to the choice of forum include:
    - the place or places where the parties and/ or witnesses reside or carry on business;
    - the location of the subject matter of the dispute;
    - the importance of local knowledge to the resolution of the issues;
    - the law governing the relevant transaction;
    - the procedures available in the different courts;
    - the likely hearing dates in the different courts; and
    - whether it is sought to transfer the proceedings to a specialised court, for example, the Family Court: see Lambert v Dean (1989) 97 FLR 352
- LIMITATION PERIODS
  - LIMITATION PERIODS
    - Time period to bring a claim
  - The rationale for imposing limitation periods - Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
    - The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates” [R v Lawrence [1982] AC 510 at 517
    - A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued
    - four broad rationales for the enactment of limitation periods.
      - As time goes by, relevant evidence is likely to be lost [Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704
      - It is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed [RB Policies at Lloyd’s v Butler [1950] 1 KB 76
      - People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them
      - Public interest requires that disputes be settled as quickly as possible.
- Specific limitations Chart

Week 5: Initiating Proceedings, Commencing Litigation, Joining Parties and Causes of Action, and Drafting Pleadings

Proceedings commenced by the ‘originating process’
- s 3 of the CPA: the originating process ‘means the process by which proceedings are commenced…’
- r 6.2(1) of the UCPR: our originating process can take two forms:
  - A statement of claim; or
  - A summons.
Statement of claim
- UCPR controls the content and form of many parts of a SoC e.g. division 4 of part 6 says that the statement of claim has to include the relief claimed by the plaintiff and the notice to the defendant.
- Some technical requirements spelled out in r 6.2(3A). SoC has to include:
  - the seal of the court on the first page;
  - the case number or unique identifier; and
  - the listing date (if allocated by the court registry).
Summons
- Statement of claim or a summons?
  - In general terms, statements of claim are usually required where the proceedings involve disputed contentions of fact and they will initiate the pre-trial and trial processes for that purpose.
  - A summons, on the other hand, is used where a question of law, rather than a substantial dispute of fact, is at issue.’
    - Kumar, Legg, Vickovich & Metzger, Civil Procedure in New South Wales (Lawbook Co, 2020), 488.
  - r 6.3: proceedings required to be commenced by a statement of claim include:
    - a claim for relief in relation to a debt or other liquidated claim;
    - a claim for relief in relation to a tort;
    - a claim based on an allegation of fraud;
    - a claim for damages for breach of duty and the damages claimed consist of or include damages in respect of the death of someone, personal injuries to a person, or damage to property;
    - proceedings on a claim for possession of land; and
    - proceedings on a claim for relief in relation to the publication of defamatory matter.
  - r 6.4 tells us proceedings required to be commenced by summons including:
    - proceedings in which there is no defendant;
    - proceedings on an application for an order for the appointment of a tutor of a person under legal incapacity; and
    - proceedings for preliminary discovery or inspection under Part
  - Touchstone: statements of claim used where we have substantive disputes involving contested questions of fact, whereas summons apply more to technical situations involving a question of law
- What are pleadings?
  - Pleadings def are formal documents filed in court and exchanged between the parties that set out the plaintiff’s claim and the defendant’s response to the claim.
  - The UCPR Dictionary indicates that ‘pleading’ includes a statement of claim, defence, reply and any subsequent pleading for which leave … but does not include a summons or notice of motion’: Kumar, Legg, Vickovich & Metzger, 493.
  - ‘The function of pleadings is to state with sufficient clarity the case that must be met…In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision’: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at [18]
- Pleadings – some general points of significance
  - Two general points of significance which should be taken into account regarding pleadings generally:
    - 1. Pleadings must be drafted and read very carefully for two main reasons:
      - a) Under r 14.26, an allegation of fact made by a party in their pleading is taken to be admitted by the opposite party unless they traverse the allegation; and
      - b) Poorly drafted pleadings are liable to being struck out.
    - 1. Pleadings can be amended:
      - a) Without leave if within 28 days period after SoC filed: r 19.1(1);
      - b) With the leave of the Court under s 64(1) of the CPA
- Some key rules of pleading
  - Central point: rules of pleading are designed to help realise the overriding purpose – s 56 CPA.
  - r 14.6: pleadings to be broken into consecutively numbered paragraphs, with each paragraph dealing with a separate matter (so far as is convenient);
  - r 14.7: pleadings to contain material facts, not evidence;
  - r 14.8: pleadings as brief as the nature of the case allows
- Particulars
  - What are particulars def? Bruce v Odhams Press Ltd [1936] 1 KB 697, 712-713:
    - broadly, the purpose of particulars is ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.’
  - Examples of distinction based on hypothetical of reckless bulldozer driver:
    - Pleading: the building collapsed on a certain date, caused by the negligence of the defendant;
    - Particular: the excavator failed to exercise due care when conducting the excavation.
    - Goes further than simply saying that the defendant was negligent – it provides further detail of the way in which they were negligent; and
    - Evidence: CCTV footage of the bulldozer being driven recklessly
- When are particulars required?
  - r 15.1: a pleading requires such particulars as are necessary to enable the other party to identify the case that they are required to meet at trial;
  - r 15.3: in proceedings involving allegations of fraud, misrepresentation, breach of trust etc, we must give particulars as to that fraudulent conduct;
  - r 15.5: in proceedings where there are allegations of negligence, contributory negligence and breach of statutory duty in common law tort claims; and
  - r 15.9: particulars must be set out in the pleading document itself or, if that is inconvenient, set out in a separate document referred to in the pleading and filed with it.
- Joining parties
  - Joining parties def: broadly, where two or more plaintiffs or two or more defendants have interests in common, rather than having multiple proceedings heard separately, we can deal with their interests in the one proceeding.
  - r 6.19: parties can be joined where:
    - ‘(a) separate proceedings…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.’
- Joining parties cont.
  - What is a transaction for the purposes of r 6.19?
    - ‘The notion of a transaction suggests a contract but it seems clear from the case law that the meaning of ‘transaction’ in this context is not limited to a contractual transaction, which implies a consensual act between two parties.
    - It may mean simply an act by one party which affects another, thereby binding the two parties in a ‘transaction’ for the purposes of potential litigation’:
      - Kumar, Legg, Vickovich & Metzger, 389-390.
- Joining causes of action
  - r 6.18 is the key provision.
  - Amongst other things, it provides that causes of action can be joined:
    - Where 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.
    - Where the court grants leave.
  - Where a Court is granting leave, remember it is making a decision that has to be guided by the overriding purpose of the CPA.
- A timeline of necessary steps
  - What do we do once we have a statement of claim drafted according to the rules? What do we do with it?
  - r 4.10(1): plaintiff has to file their statement of claim with the Registry of the Supreme Court to commence proceedings.
  - r 4.12: plaintiff can lodge additional copies to be sealed for service.
  - r 6.2(4): for proceedings commenced in the Supreme Court, a statement of claim is valid for service 6 months after it has been filed.
  - r 6.2(3): originating process must be served on defendant.
JOINING PARTIES AND CAUSES OF ACTION
- Dow Jones & Co v Gutnick,7 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
  - Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings.
  - The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy.
- Res judicata def
  - meaning “a matter already judged”, and sometimes referred to as “cause of action estoppel”
  - Issue estoppel may preclude a particular issue or matter in previous proceedings from being raised in any subsequent proceedings.
  - Finally, Anshun estoppel def applies to a claim that could have been, but was not, made in the earlier proceedings
- Joining plaintiffs
  - Plaintiffs can join in the same proceedings where each has a right to relief arising out of the same transaction (or series of transactions) and, if there were separate trials, there would be common questions of law or fact.
  - Court powers of Joining rr 6 UCPR
  - Payne v Young (1980) 145 CLR 609.,
    - the plaintiffs were improperly joined because each plaintiff was held to have entered into a separate transaction and the transactions were not related and had nothing in common.
    - They were separate causes of action against different
- Joining defendants
  - Different defendants can be joined in the same proceedings if the claim of relief against each defendant arises out of the same transaction (or series of transactions) and the causes of action give rise to a common question of law or fact.
- What is a transaction?
  - The meaning of “transaction” is not settled and the term is not defined in the Dictionary of the UCPR.
  - The notion of a transaction suggests a contract but it seems clear from the case law that the meaning of “transaction” in this context is not limited to a contractual transaction, which implies a consensual act between two parties.
  - Bendir v Anson [1936] 3 All ER 326.
  - The plaintiffs were owners of adjoining buildings who were affected in different ways by the defendant’s construction of a new building across the road.
  - Lord Wright MR in the Court of Appeal discussed the preferable meaning of “transaction” and held there was no common question of fact. Because of that, it was preferable to exercise the court’s discretion in favour of separate trials.
  - Birtles v Commonwealth [1960] VR 247.
    - the notion of “transaction” was given a broader interpretation than in Bendir v Anson
    - Facts
      - In that case the plaintiff, while at work digging a hole, used a crowbar that contacted a high-voltage underground cable. He suffered an electric shock and sued the occupier of the land (the Commonwealth), the State Electricity Commission (SEC) and his employer.
      - All defendants claimed that the relevant limitation period had expired.
      - The SEC also claimed that it had not received the required statutory notice of the plaintiff’s intention to sue.
      - After the defences had been filed, the plaintiff changed his solicitor and sought to add his former solicitor as a new defendant in the proceedings in an action for negligence in the event that he failed against the existing defendants
    - Adam J held that the “transaction” included the accident and injury to the plaintiff as well as the matters relating to the litigation and the limitation issue
  - Payne v Young (1980) 145 CLR 609
  - Procedural History
    - The plaintiffs, operators of different Western Australian abattoirs, challenged the validity of regulations under which inspection fees were levied for carcass inspections by state authorities.
  - Original Dispute
    - The dispute centered on whether the regulations imposing inspection fees were invalid.
  - Reason for Trial
    - The trial focused on the legitimacy of the inspection fee regulations and the joinder of multiple plaintiffs in a single claim for a declaration of invalidity and for recovery of fees paid under the alleged invalid regulations.
  - Material Facts
    - Plaintiffs had paid inspection fees to defendants under specific regulations.
    - They sought a declaration that these regulations were invalid and recovery of the fees paid.
  - Issue Raised
    - Whether multiple plaintiffs could join in a single action to seek a declaration of invalidity of the regulation imposing the inspection fee and recover the fees paid.
  - Law(s)/Statute(s) in Contention
    - Rules concerning the joinder of claims and parties in legal proceedings.
  - Precedents
    - Birtles v Commonwealth (1960) VR 247:
      - Discussed the liberal interpretation of procedural rules.
    - Duke of Bedford v Ellis (1901) AC 1:
      - Addressed the application of joinder rules.
    - Stroud v Lawson (1898) 2 QB 54-55:
      - Clarified the interpretation of joinder rules.
  - Tests
    - Examination of the rule concerning “the same transaction or series of transactions” for the purpose of joinder.
  - Words and Phrases Considered
    - “Transaction,” “series of transactions,” and their interpretation within the context of legal proceedings for joinder purposes.
  - Judicial Opinions and Interpretation
    - Majority:
      - Found no basis for joinder of the plaintiffs in the claim for recovery of money due to the individual nature of the claims against each defendant.
    - Minority (Murphy J dissenting):
      - Advocated for a liberal interpretation of the joinder rules, referencing liberal views in American and Canadian jurisprudence.
  - Ratio Decidendi
    - The joinder of multiple plaintiffs in a single action for the recovery of inspection fees paid under allegedly invalid regulations was improper due to the individual nature of each claim.
    - However, joinder for seeking a declaration of invalidity of the regulations was allowed.
  - Conclusion and Relevance to Modern Law
    - This case underscores the strict interpretation of joinder rules in Australian law, emphasizing that separate causes of action must closely align in nature and subject matter to permit joinder.
    - It highlights the necessity for claims to arise out of the same transaction or a closely related series of transactions.
    - This decision has implications for future cases involving multiple plaintiffs with similar but distinct claims, guiding how legal practitioners structure their cases to meet joinder requirements.
- Joinder by leave
  - Dean- Willcocks v Air Transit International (2002) 55 NSWLR 64
    - Original Dispute
      - The liquidator identified payments made to 58 separate suppliers and creditors as unfair preferences during the six months before three related companies went into liquidation.
    - Reason for Trial
      - The trial focused on the liquidator’s action to recover amounts deemed as unfair preferences paid to the suppliers and creditors.
    - Material Facts
      - The liquidator initiated a single action against all parties involved, claiming the recovery of payments made to them by the liquidated companies, which were considered unfair preferences.
    - Issue Raised
      - Whether it is permissible under court rules to allow a single action (joinder) by the liquidator against multiple defendants for the recovery of unfair preference payments.
    - Law(s)/Statute(s) in Contention
      - Supreme Court Rules and principles related to the joinder of parties and claims in legal proceedings.
    - Tests and Judicial Analysis
      - The necessity to identify a common question of law or fact across all transactions and to demonstrate that all rights to relief arise out of the same transaction or series of transactions.
    - Judicial Opinions and Interpretation
      - Austin J:
        
        Held it was in the public interest to permit the joinder of multiple defendants in a single action by the liquidator.
        
        This approach allows for the efficient pursuit of claims on behalf of all unsecured creditors and is supported by procedural rules, given the commonality of issues related to insolvency and the shortfall to unsecured creditors.
    - Ratio Decidendi
      - The rights to relief in the form of recovery of payments deemed unfair preferences can be pursued in a single action against multiple defendants, provided there are common questions of law or fact and a coherent link between the transactions.
    - Conclusion and Relevance to Modern Law
      - This case sets a precedent for the efficient management of insolvency proceedings, especially in cases involving multiple transactions that have led to unfair preferences.
      - It underscores the court’s flexibility in applying procedural rules to facilitate the just and efficient resolution of disputes, balancing the interests of the liquidator (and thereby unsecured creditors) with considerations of fairness and practicality for defendants.
      - The decision highlights the importance of judicial discretion in allowing joinder to promote the efficient use of court resources and reduce costs and delays in litigation, while ensuring fairness to all parties involved.
- JOINDER OF CAUSES OF Action
  - The considerations controlling joinder of causes of action and the joining of parties are interrelated because when parties are joined different causes of action may exist between those parties that have been joined
  - Causes of actions can be joined in the same proceedings as long as the capacity of the plaintiff and defendant are within one of subr (1)(a)–(c) or if the court grants leave under subr (1)(d).
  - UCPR 6.18 Joinder of causes of action
- JOINDER, EFFICIENCY AND Costs
  - The efficiencies of joinder can be lost when the resulting litigation gives rise to claims that are too disparate or the multitude of parties and causes of action creates too great a level of complexity
  - Can solve one issue with multiple different points of contention, but not multiple issues that have different facts but same issue.
    - Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317
Initiating Proceedings and Pleadings
- Section 3 of the Civil Procedure Act 2005 (NSW) (CPA) defines the “originating process” as the process by which proceedings are commenced and includes the process by which a cross-claim1 is made
  - THE ORIGINATING PROCESS
    - proceedings are initiated by using either a statement of claim or summons: UCPR r 6.2.
    - A summons, on the other hand, is used where a question of law, rather than a substantial dispute of fact, is at issue. UCPR r 6.4
      - A summons initiates a summary procedure, and a return date for determination of the matter is entered on the summons by the Court Registry when it is filed
    - If the plaintiff incorrectly uses the wrong originating process, whether commenced by statement of claim or summons, there are rules that nevertheless take the proceedings to have been duly commenced and that provide the court with power to make appropriate orders: UCPR r 6.5, r 6.6
    - Information that must be contained in the originating process is prescribed, as are the paper and margin sizes, those parts of the document that must be in bold print, and the requirements for a proper address for service.
      - The originating process should also specifically state the relief claimed: UCPR r 6.12
- APPEARANCE
  - The defendant may file an appearance or a defence and serve it on the plaintiff’s address for service as indicated on the plaintiff’s statement of claim or summons.
  - Regulated by rr 6, 7, and 12
  - Entering an appearance formally notifies the court and the plaintiff that the defendant intends to take some part in the proceedings and may indicate a submission to the jurisdiction.
  - It also acts as a waiver to object to any possibility that the originating process has failed to comply with the rules.
- PLEADINGS
  - Pleadings are formal documents filed in court and exchanged between the parties that set out the plaintiff’s claim and the defendant’s response to the claim.
    - 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.
    - R 14 regulations
    - Pleadings may be amended and, with leave of the court, even at the stage of trial.
      - Further, a court may decide a case on the evidence presented notwithstanding that a cause of action may have been pleaded defectively.
  - In Films and Casting Temple v Rajesh Malla [2013] NSWCA 377, the New South Wales Court of Appeal (Ward and Gleeson JJA; McDougall J) held that pleadings that had mischaracterised the effect of a contractual provision, the terms of which had been adduced in evidence at trial and proved without objection, did not preclude the court from deciding the claim on the basis of the contractual term as proved, not as pleaded.
    - Original Dispute
      - Films and Casting Temple Pty Ltd (Temple) appealed a decision regarding a breach of contract by Rajesh Malla, specifically related to a personal assurance (PA1) and guarantees under a May 23 agreement.
    - Reason for Trial
      - The appeal focused on several key issues, including whether Malla breached the contract as pleaded, whether Temple was entitled to damages despite the pleading, the operation of Malla’s guarantee, the composition of the May 23 agreement, and the interpretation of “unable to pay” within that agreement.
    - Material Facts
      - Temple argued that Malla had breached a clause (cl 9.3) in the contract intended to protect Temple’s confidential information by engaging in activities with two Indian film projects without involving Temple for production management services.
    - Issue Raised
      - The appeal raised questions about the interpretation and enforcement of contractual obligations, the scope of a guarantee, and the impact of mischaracterization in pleadings on the outcome of a case.
    - Law(s)/Statute(s) in Contention
      - The case primarily deals with contractual obligations, the interpretation of guarantees, and principles of fair trial and pleading requirements under civil procedure law.
    - Judicial Opinions and Interpretation
      - McDougall J (with Ward and Gleeson JJA agreeing): Emphasized the importance of addressing the case based on the evidence and the actual provisions of the contract, rather than strictly adhering to how the claim was initially pleaded.
      - The court highlighted the flexibility in addressing claims that may have been improperly characterized in pleadings but are supported by evidence.
    - Ratio Decidendi
      - The court’s decision centered on the notion that a case can be decided based on the facts and evidence presented at trial, even if they diverge from the specific claims or defenses pleaded.
      - This approach is contingent on ensuring that such a decision does not unfairly prejudice the opposing party.
    - Conclusion and Relevance to Modern Law
      - The Films and Casting Temple v Malla case underscores the NSW Court of Appeal’s approach to dealing with issues of contractual interpretation, the importance of clear and accurate pleading in litigation, and the discretion of courts to grant relief based on the substance of the evidence presented, rather than being overly constrained by the technicalities of pleadings.
      - This decision reaffirms the principle that legal disputes should be resolved based on their merits, with due consideration for procedural fairness and the real issues in controversy, as evidenced by the conduct of the trial.
  - Young v Hones [2014] NSWCA 337, the New South Wales Court of Appeal confirmed that a reply should be used to respond to allegations in the defence.
    - It is not appropriate to use a reply to raise new allegations or causes of action against the defendant.
    - This would require an application to amend the statement of claim.
  - Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
    - [Akhil Holdings Ltd (Akhil) sued the Banque Commerciale (the bank), Deauville Nominees Pty. Limited (Deauville), and a Mr Messara for breach of trust for transferring shares without authority
    - A copy of the reply to Messara was served on the bank, but Akhil did not file or serve a formal reply to the bank’s limitation defence.
      - If Akhil had made a reply alleging fraud the bank would have been entitled to details of the fraud alleged.
    - The bank appealed to the High Court of Australia where one of the main issues was whether the Court of Appeal could make a finding of fraud against the bank when that issue was not raised on the pleadings against it.
      - The fraud allegation was raised only in the pleadings against Deauville and Messara.]
    - The function of pleadings is to state with sufficient clarity the case that must be met:
      - Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [1916] HCA 81
    - Mason CJ and Gaudron J (with Brennan J agreeing):
      - Emphasized the importance of pleadings in defining the issues for decision and ensuring procedural fairness.
      - The Court held that relief is generally confined to what is claimed in the pleadings unless parties deliberately choose a different basis for determining their rights and liabilities.
      - parties are entitled to know and respond to the case against them as defined by pleading
  - ASIC v Rich [2006] NSWSC 712
    - Each objection asserted that the line of questioning was outside ASIC’s pleadings and amount to an attempt to establish a previously unpleaded case
    - Pleadings
      - Upheld Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
      - The plaintiff is entitled to attack in cross-examination evidence going to matters raised in a defence, though not in the statement of claim.
        
        Defendant can respond to assertions made by Plaintiff, it’s not raising new content, but addressing content from their pleadings
  - Young v Hones [2014] NSWCA 337
    - Original Dispute
      - The dispute involved proceedings in the Land and Environment Court over a neighborhood drainage problem that were settled by consent orders.
      - Years later, Young attempted to set aside these orders due to unresolved issues and sued her lawyer and engineering expert for negligent advice.
    - Reason for Trial
      - The trial examined the applicability of advocate’s immunity and witness immunity raised by the lawyer and the expert, respectively, as defenses against Young’s claims.
    - Material Facts
      - Young’s attempts to reopen the settled case and sue her advisers were met with immunity defenses.
      - The trial judge decided that these immunities were a complete answer to Young’s claims, dismissing them before the close of pleadings.
    - Issue Raised
      - The main issue on appeal was whether the trial judge erred by deciding on the immunities as complete defenses before Young had the opportunity to file a reply, where she intended to allege bad faith, potentially affecting the applicability of the advocate’s immunity.
    - Law(s)/Statute(s) in Contention
      - The case centered around the principles of pleading and the specific application of advocate’s immunity and witness immunity in civil litigation.
    - Judicial Opinions and Interpretation
      - Ward JA: Highlighted that new claims or causes of action should not be introduced in a reply, and that a reply should not contradict the initial claim.
      - The rationale is to ensure clarity and efficiency in litigation, preventing unnecessary proliferation of documentation and associated costs and delays.
    - Ratio Decidendi
      - The Court of Appeal upheld the trial judge’s dismissal of Young’s claims, emphasizing that allegations of bad faith must be made in the statement of claim, not in the reply.
      - The court reasoned that a procedural decision had been made to proceed with the hearing on separate questions of law regarding immunities before the close of pleadings, with Young’s consent.
    - Conclusion and Relevance to Modern Law
      - This case reaffirms the importance of adhering to procedural rules and the structure of pleadings in civil litigation, particularly in New South Wales.
      - It demonstrates the constraints on introducing new allegations outside the statement of claim and the significance of consent in procedural decisions.
      - The decision also underscores the protective scope of advocate’s and witness immunities, even when there is a suggestion of bad faith, unless properly pleaded against in the initial stages of litigation.
- Material facts
  - material facts def will be those facts that are critical to supporting each of the elements of the cause of action.
  - Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413
    - There are certain levels of generality of pleading which, while they may bring in all facts necessary to establish a cause of action, are insufficient for the purpose of properly informing the defendant of the case it has to meet
      - Bruce v Odhams Press Ltd - The cause of action must be alleged with particularity
- Evidence
  - The means by which the material facts are to be proved is evidence.
    - For example, evidence could be the oral testimony of witnesses called at the trial, or it could be evidence adduced through documents
  - No conclusions of law as materials facts
    - pleadings should not contain mere allegations or conclusions of law
    - A statement of claim must identify the cause of action, but simply identifying the cause of action will not suffice unless the material facts supporting that cause of action are pleaded as
      - This part was negligent in setting xyz up. - wrong
  - Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44;
    - Hodgson JA
      - Material” means material to the claim, that is, to the cause or causes of action which are relied on.
      - (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract.
      - (3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action.
  - Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321
    - A statement of claim must identify the cause of action, but simply identifying the cause of action will not suffice unless the material facts supporting that cause of action are pleaded as
      - This part was negligent in setting xyz up. - wrong
- Surprise
  - When all the material facts are alleged in the pleadings, the opponent has notice of the case that must be met.
    - 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 plaintiff from fulfilling his or her legal burden of proof.
  - Kasupene v Ajax Foundry Pty Ltd [2006] NSWCA 309
    - Facts
      - The appellant was injured on 12 November 2001 when a heavy tray which was being lifted by an overhead crane came down on his right foot.
      - He was employed by a labour hire company, Hussonee Pty Ltd and had been assigned to work at Silverwater in the business owned by the respondent.
      - The appellant sued the respondent and the matter was heard in the District Court.
      - The trial judge entered a verdict for the respondent.
      - The appellant appeals that decision.
    - The appellant emphasised the negotiations before trial and the agreement between the parties that the appellant would not plead a failure to adequately repair or maintain or other mechanical failure of the equipment.
      - It was submitted that this meant that there would be no suggestion made by the respondent that the accident was caused by the mechanical failure of the equipment.
    - It was submitted on appeal that in the absence of the respondent pleading mechanical failure, the only rational explanation for the accident is negligence in the operator of the crane
      - The circumstances of the present case did not impose an obligation on the respondent to plead in relation to prospective mechanical failure.
        
        The respondent did not submit that the accident was explained by mechanical failure
    - Held that his Honour was correct to accept this submission.
      - The appellant was always required to prove his case
      - Appeal failed
- Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
  - [The appellant appealed a decision at trial that he did not injure himself at work in the way he asserted.]
  - The failure to plead the positive case asserted at the trial was, however, contrary to the surprise rule and goes a long way, on its own, in providing a satisfactory explanation for the appellant’s failure to call more witnesses to bolster his case that an accident occurred as alleged by him.
  - Heydon JA in Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; (2001) 53 NSWLR 116 approved the statement of Allsop J in White v Overland [2001] FCA 1333 at [4] that:
    - [I] t should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are
  - The respondent’s non-admission plea in answer to the appellant’s detailed description of the accident contained in the statement of claim, together with reliance by the respondent on the workers compensation payments made by it, would have resulted in the appellant being taken by surprise when, during the course of the trial, it was first made plain that the respondent was seeking to make an affirmative case in regard to the question whether the appellant was injured by an accident at work in the manner asserted by him.
- Verification
  - Traditionally, material facts contained in pleadings were not assertions of their truth.
  - They were merely considered “written identification and communications of the extent of the plaintiff’s claim”
  - UCPR r 14.23 requires a party’s pleading to be verified by affidavit which is made on the pleading
  - Far as they believe, true
- PARTICULARS
  - Particulars are details of the material facts on which the party relies in his or her pleadings.
  - They limit the generality of pleadings so as to more sharply define the issues but do not modify the cause of action
- Bailey v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214
  - GIBBS
    - Particulars define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute.
- Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
  - Original Dispute
    - Cosmidis, a tanker driver employed by D M & B P Wiskich Pty Ltd (Wiskich), was injured by a forklift driven by a Boral Bricks Ltd (Boral) employee after delivering fuel to Boral’s premises.
    - Cosmidis sued Boral for negligence, and Boral, in turn, joined Wiskich to the proceedings, seeking to reduce any damages payable to Cosmidis by alleging Wiskich’s negligence.
  - Reason for Trial
    - The trial focused on Boral’s negligence and the applicability of section 151Z of the Workers Compensation Act 1987 (NSW) regarding the reduction of damages due to Wiskich’s alleged negligence.
  - Material Facts
    - Boral pleaded a general reliance on section 151Z for reducing damages but did not provide particulars of Wiskich’s alleged breaches of duty.
    - The trial judge refused Boral’s late attempt to amend its defense to specify these breaches.
  - Issue Raised
    - Whether Boral was required to provide particulars of the alleged negligence by Wiskich under section 151Z and if the failure to do so affected the outcome of the trial.
  - Law(s)/Statute(s) in Contention
    - Section 151Z of the Workers Compensation Act 1987 (NSW) and its application in cases where a defendant seeks to reduce liability for damages by attributing negligence to a worker’s employer.
  - Judicial Opinions and Interpretation
    - Basten JA: Emphasized the importance of particulars in pleadings, especially when a defendant wishes to benefit from section 151Z(2) of the Workers Compensation Act.
    - Basten JA referred to precedent and clarified that identifying material facts in pleadings prevents surprises and ensures fairness in legal proceedings.
  - Ratio Decidendi
    - The Court of Appeal upheld the trial judge’s decision not to allow Boral to amend its defense to include particulars of Wiskich’s alleged negligence.
    - The court highlighted the necessity of providing particulars when a party intends to rely on specific legislative provisions to argue for the reduction of damages.
  - Conclusion and Relevance to Modern Law
    - The Boral Bricks Pty Ltd v Cosmidis case reinforces the principle that defendants seeking to rely on statutory mechanisms to adjust damages must clearly identify the material facts and particulars of their claims in pleadings.
    - This requirement ensures transparency, fairness, and the efficient management of legal proceedings, preventing the other party from being taken by surprise.
    - The decision underscores the critical role of particulars in pleading, especially in cases involving complex issues of liability and statutory interpretation.
- BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 8
  - The tendency in pleadings in recent years has been to address matters of substance rather than matters of form.
- Particulars and evidence
  - Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
    - Giving particulars of the case to be made out has been distinguished from disclosing the evidence by which the case is to be proved, but the distinction is not a clear one and the touchstone must be what is reasonably necessary to achieve the purposes last-mentioned.
    - Authority is hardly necessary, but there can conveniently be set out from the judgment of Hunt J in Sims v Wran (1984) 1 NSWLR 317
  - Provided the other party is not treated unjustly, latitude may in practice be given to adduce evidence beyond the boundaries identified by the particulars
  - Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 12
    - Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning:
      - Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, at 6
    - The exercise of that discretion must necessarily depend upon many things, including the amount of warning that the other party has had that such evidence was to be led.
    - What course should usually be followed by the trial judge in the various situations which may arise was discussed in
      - Reiter v Publishing and Broadcasting Ltd [1983] 2 NSWLR 137(n).
  - Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
  - Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings Gould and Birbeck and Bacon (1916) 22 CLR
- When are particulars required?
  - UCPR r 15.1 merely states that a pleading must give such particulars as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.
  - Any application to the court for an order for particulars (see UCPR r 15.10) should be preceded by a written request for particulars to the opponent.
    - UCPR r 15.10 does not prevent an order for particulars being given prior to a defence being filed. However, it should not be assumed that there is an entitlement to an order for particulars at this early stage.

Week 6: Services

What is Service
- Service def:
  - the procedure by which a plaintiff informs a defendant of the claim being made against them.
  - Essential requirement of natural justice.
  - Designed to ensure the document is brought to the attention of the person being served.
  - An important component of the rule of law & necessary to enliven the jurisdiction of the Court.
- Service – some rules
  - A general departure point, r 10.1(1): ‘(1) Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party.’
  - r 10.5: specifies the general ways by which service can be effected.
    - Service quite simple once proceedings are underway.
  - r 10.20(2)(a): originating documents in the Supreme Court have to be personally served.
- What is involved in personal service?
  - Personal service can be effected by plaintiff – more commonly it is by a process server or the NSW Sheriff.
  - r 10.21:
    - ‘(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.
      - Ainsworth v Redd
      - where the defendant told the process server to give it to his representative who was standing next to him and afterward the defendant was heard to say: “We’d better look at these”
      - Graczyk v Graczyk
        
        the requirement of placing the document in the person’s presence was fulfilled by pushing it under a locked door.
      - Re Hudson; Ex parte G E Crane & Sons Ltd
        
        it was satisfied by attaching the document to the front of a locked door and at the same time telling the defendant that this was occurring.
      - Lawindi; Re Elkateb v Elkateb
        
        Stone J said the requirement that the nature of the document be explained is not demanding and need not be done if the nature of the document is clear on its face
    - (2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.’
  - r 35.8: affidavit of service required.
- Personal service on corporations/business entities
  - rr 10.9-10.11: service on defendants operating under a registered/unregistered business name or in a partnership is effected by:
    - Leaving the document with someone 16 or over at the address
    - where the business is carried out: or
    - Mailing a copy to the postal address of the business, addressed to the defendant.
  - r 10.22: service on a corporation can be effected by:
    - Serving a copy on a principal officer of the corporation; or
    - Any other method prescribed by law e.g. s 109X(1)(a) of the Corporations Act allowing service by leaving or posting the document to the company’s registered office.
- Substituted service
  - Substituted service can take place in a situation where it is impracticable for personal service to take place e.g. because the defendant has proven very evasive.
  - Regulated by r 10.14.
  - Order for substituted service will specify the steps required for service to be effected.
- Limits to substituted service
  - In order to prevent substituted service being the norm, there are two central considerations:
    - 1. Substituted service only applies where the kind of service envisaged by the UCPR cannot be practically undertaken – sometimes referred to as “practical impossibility”.
      - The applicant should have made efforts to effect service properly,and/or should lead evidence to prove that such an effort would be futile – see Munkarra v Fischer (1980) 5 NTR 3;
    - 1. The Court has to be satisfied that the proposed alternative means of service is reasonably likely to bring the proceedings to the defendant’s attention – see Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268.
  - Flo Rida v Mothership Music Pty Ltd [2013] NSWCA
    - Procedural History:
      - Flo Rida entered a contract to perform at a music festival in Newcastle in 2011 but did not appear.
      - The promoter filed a claim for damages in the District Court and obtained a freezing order on Flo Rida’s assets in Australia.
      - The court permitted substituted service via email and Facebook.
      - Flo Rida appealed the judgment, arguing improper substituted service.
    - Original Dispute:
      - The dispute centered on Flo Rida’s failure to perform at the music festival and the ensuing legal actions for breach of contract, including the method of legal service for the proceedings.
    - Reason for Trial:
      - The appeal was focused on whether the District Court’s order for substituted service via email and Facebook was appropriate and legally valid.
    - Material Facts:
      - Flo Rida was in Australia for radio engagements when the legal action was initiated.
      - Attempts at traditional service failed, leading to an order for substituted service.
      - The service was attempted via email and a Facebook message after Flo Rida had left Australia.
    - Issue(s) Raised:
      - Whether the District Court had jurisdiction to make an order for substituted service on a defendant not physically present in Australia.
      - The validity of using social media (Facebook) and email as methods for substituted service.
    - Law(s)/Statute(s) in Contention:
      - Uniform Civil Procedure Rules (UCPR) r. 10.14 regarding substituted service.
      - District Court Act 1973 sections 44 and 47 regarding jurisdiction and territorial connection.
    - Precedences Cited:
      - Byrne v Howard [2010] FMCAFAM 509 regarding substituted service via Facebook.
      - ASIC v Sweeney (No 2) [2001] NSWSC 477; Laurie v Carroll [1958] HCA 4; 98 CLR 310 regarding limitations on substituted service outside jurisdiction.
    - Judicial Opinions and Interpretation:
      - The NSW Court of Appeal found the District Court’s method of substituted service inappropriate, given the international jurisdiction issues and the lack of concrete evidence connecting Flo Rida to the Facebook account used for service.
    - Legal Reasoning and Ratio Decidendi:
      - The court reasoned that substituted service via digital means without concrete evidence of its effectiveness or proper jurisdictional basis was insufficient.
      - The decision hinged on ensuring due legal process and the appropriateness of service methods within jurisdictional limits.
    - Conclusion and Relevance to Modern Law:
      - The appeal was upheld, and the judgment against Flo Rida was set aside.
      - This case emphasizes the need for clear jurisdictional authority and the adequacy of service methods in the digital age, impacting future cases involving international defendants and digital communication platforms.
- Urgency
  - Amos Removals & Storage Pty Ltd v Small
    - a summons was issued on a Thursday that had to be served by 5 pm Friday and there were 19 defendants who were spread across New South Wales.
    - Under those circumstances, substituted service was allowed.
- Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822
  - Bulldogs trying to serve Williams to commence proceedings for breach of contract.
  - Unable initially to effect personal service – Williams is in France.
  - Order for substituted service specifies that:
    - Copies to be left at registered addresses of Toulon Rugby club;
    - Copies left at Williams’ Sydney residence;
    - Text messages sent to what appears to be Williams phone number and that of his manager.
- Nash v Stewart [2010] NSWSC 513
  - Barrett J held that an order for substituted service could not be made in respect of personal service of a subpoena to give evidence.
  - Division 3 of Part 10, rule 10.20(1) makes it clear that personal service is compulsory, not optional, in cases where the rules require it.
- Service outside of NSW but in Australia
  - Two main instruments:
    - 1. Service and Execution of Process Act 1992 (Cth), known as SEPA.
      - Can apply to proceedings in the Supreme Court, District Court, down to the Local Court. Importantly, out-of-state service relating to proceedings in these last two, the District and Local Court, has to be executed in accordance with SEPA;
    - 1. r 10.3 of the UCPR.
      - In practice, SEPA is almost invariably used.
  - Munkarra v Fisher
    - the plaintiff was injured in an accident involving a motor cycle in Darwin.
    - The offending motor bike was registered and insured in Western Australia, and the rider was a German national who held a Northern Territory and international driver’s licence.
    - Immigration records showed that he had arrived in Australia two years earlier, and there was no record that he had left. At the time of the accident he was resident in the South Darwin Caravan Park, and his current address was unknown.
    - The plaintiff showed that the application was not urgent and that incomplete checks of official records (driving licences, electoral rolls, phone books etc) had been undertaken.
    - The court directed that further checks be undertaken with, for example, the German embassy and German clubs in the relevant areas
- SEPA
  - s 15 of SEPA:
    - ‘(1) An initiating process issued in a State may be served in another State.
    - (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue.
    - (3) Service on a company or a registered body must be effected in accordance with section 9.’
- Service internationally
  - Four different methods of service internationally:
    - 1. Service by private means (i.e. using a process server or local agent in the concerned country). Regulated by Part 11, Division 1A of the UCPR;
    - 1. Service through diplomatic channels i.e. through using the Attorney-General’s office and Australian embassies. Regulated by Part 11, Division 2 of the UCPR;
    - 1. Service pursuant to the Hague Convention. Regulated by Part 11A of the UCPR; and
    - 1. Service arrangements agreed in bilateral treaties. Service by private means is most important for our purposes.
- Service by private means
  - r 11.4: originating process can be served overseas without leave of the Court if it is in relation to a claim falling within Schedule 6 of the UCPR – a very broad provision.
  - r 11.8AC: document we are serving overseas need not be personally served so long as it is served in accordance with the law of the country in which service is effected.
- Service by private means cont.
  - Some inbuilt mechanisms to regulate service overseas:
    - r 11.6: if the person served overseas applies to the Supreme Court, then the Supreme Court can decide not to assume jurisdiction and can stay or dismiss the proceedings.
      - The Court can do so if the document wasn’t served according to the rules, if the court is clearly an inappropriate forum, or if the case has insufficient prospects of success;
    - r 11.7: the document served on the party overseas has to include a notice to the defendant informing them of the scope of the jurisdiction of the court, the grounds alleged by the plaintiff to give rise to that jurisdiction, and the person’s right to challenge service of the originating process or the jurisdiction of the court.
    - r 11.8AA: if you have served your originating document on someone in another country, and they haven’t filed an appearance within the appropriate time-frame, then the plaintiff may only proceed with leave of the Court
- Hunter v Hanson [2014] NSWCA 263
  - the New South Wales Court of Appeal by majority (McColl and Macfarlan JJA; Emmett JA dissenting) dismissed an application for leave to appeal against the decision of the District Court to extend the time for service of a statement of claim
  - The respondent in the appeal had sued the applicant for defamation, and had decided to delay service of the statement of claim for two reasons:
    - first, to wait for the delivery of an unconnected Court of Appeal decision with possible implications concerning absolute privilege on similar facts;
    - and second, to avoid aggravating the situation with the applicant in respect of whose conduct the respondent had sought an apprehended personal violence order.
  - Affidavit of service def
    - An affidavit attesting to the fact that the defendant (where, when, by whom, and how) has been served
    - Often includes words used to deliver and words used in reply
- Documents required to be personally served (r 10.5)
  - Notice of Motion: A notice of motion is required to be served personally on a person who is not a party to the proceedings or who is a party, but not an active party: r 18.5.
  - Copy of a judgment before committal or sequestration:
    - A sealed copy of the judgment must be served personally on the person bound by the judgment: r 40.7.
  - Subpoena:
    - Subpoenas must be personally served on the addressee: r 33.5.
    - However, r 10.20(2)(d) permits service by post of subpoenas for production in proceedings in the District Court or the Local Court
- Service by agreement, acknowledgment or undertaking
  - Mondial Trading Pty Ltd v Interocean Marine Transport Inc
    - an agreement concerning the appropriate jurisdiction to bring a claim was held not to encompass an agreement as to mode of service.
  - Westpac Banking Corp v Thurairajah [2009] NSWSC 442 at [6] per Barrett J
    - In a case where a bank (the mortgagee) commenced proceedings against the mortgagor for possession of land the subject of a mortgage due to the mortgagor’s default in payments under the mortgage, the court held that a statement of claim could be served by leaving it at the mortgaged property because the mortgage included an express term to that effect

Week 7: Evidence in Proceedings

Evidence in Proceedings
- Two classic forms of evidence
  - 1. Oral testimony e.g. the person sitting in the witness box giving evidence in chief at trial.
  - 1. Affidavit evidence: evidence committed to writing.
    - It is affidavit evidence which primarily concerns us today.
  - What is an affidavit? It is simply the evidence of a witness reduced to writing that is sworn to or affirmed.
- Some important features of affidavits
  - Affidavits largely governed by Part 35 of the UCPR.
  - Affidavits that do not comply with rules about form can be struck out.
  - Nevertheless, an affidavit with an irregularity may be used with the leave of the court (r 35.1).
  - NB – limits on who can make affidavits (e.g. limits where under legal incapacity, corporation, the Crown) (r 35.3).
    - Also limits on use of affidavits made by ‘blind or illiterate persons’ (r 35.7).
  - Deponent may be cross-examined on contents of affidavit (r 35.2).
- Affidavits – rules of drafting
  - Name of deponent and date sworn or affirmed on front page as a heading: r 35.3A.
  - All pages numbered consecutively including annexures: r 35.6(3).
  - All paragraphs numbered consecutively: r 35.4(c).
  - Each paragraph dealing with separate issue or event: r 35.4 (a)&(b).
  - Each page must be signed by deponent and witness: r 35.7B.
  - Annexures must be clearly identified e.g. This is the annexure marked “A”: r 35.6(2).
  - Jurat (which is the formal part at the end of the affidavit) must be completed: r 35.7A.
  - Changes must be initialled or otherwise affidavit cannot be used: r 35.5.
- Affidavits – some conventions
  - Affidavits should be stapled.
  - Maximum size – 50 pages including annexures.
  - Originals must not be compromised by being stapled to an affidavit.
- Oaths & affirmations
  - Oaths and affirmation achieve the same purpose – the deponent attests to the veracity of the contents of the affidavit.
  - They create a consequence if the deponent has lied – they can face a charge of perjury.
  - The requirements for oaths and affirmations are set out in Part 5 of the Oaths Act and Division 2 of Part 2.1 of the Evidence Act.
    - Oaths Act 1900 (NSW) ss 26, 26B, 27, 27A, 32, 34
    - False swearing
      - Oaths Act 1900 (NSW) ss 29–31, 33
  - Note r 35.9 – only file an affidavit that complies with court rules and practice notes (see, e.g., Practice Note SC Gen 4, Supreme Court – Affidavits).
- An archetypal affidavit
- Discovery
  - Discovery is a pre-trial process whereby one side looks at the other side’s relevant documents or administers interrogatories to the other side.
    - It includes the notion of preliminary discovery.
  - Purpose of discovery is to promote fair trial because:
    - It enables parties to best prepare their case; and
    - Ensures judges will have evidence available to them to decide on the case.
  - ‘The right is peculiar to the common law jurisdictions. In plain language, litigation in this country is conducted ‘cards face up on the table’…litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.’: Davies v Eli Lilly & Co [1987] All ER 801, 804.
- Limits on discovery
  - Limitations in Supreme Court Equity Division as per Practice Note SC Eq 11:
    - Court will not make an order for disclosure of documents unless there are exceptional circumstances necessitating disclosure.
    - Only make order where necessary for the resolution of the real issues in dispute in the proceedings.
    - Any application for an order for disclosure must be supported by an affidavit.
- Discovery
  - There are two main forms of discovery:
    - 1. Preliminary discovery (before proceedings commence): UCPR Pt 5; and
    - 1. Discovery proper (after proceedings commence): UCPR Pt 21.
Preliminary discovery
- Preliminary discovery available to:
  - 1. Ascertain identity or whereabouts of prospective defendants (r 5.2); or
  - 1. To assess whether or not to commence proceedings (r 5.3).
  - If proceedings not yet commenced – file summons with supporting affidavit, personally serve application and affidavit (rr 5.2, 5.3, 5.4).
  - Court can order costs relating to preliminary discovery (r 5.8).
- Preliminary discovery – ascertain identity or whereabouts
  - r 5.2 – two main criteria:
    - 1. Applicant is unable to locate or identify prospective defendant after making reasonable inquiries; and
    - 1. Some other person may have information, or possess documents, that tend to assist locating or identifying defendant.
  - NB – applicant must “desire” to commence proceedings against the person: Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35.
- Preliminary discovery – whether or not to commence proceedings
  - r 5.3 is cast in much the same language as r 5.2:
    - 1. Applicant may have claim against another person, but has been unable to obtain sufficient information to decide whether to commence after having made reasonable inquiries, and
    - 1. Such a person may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make a claim, and
    - 1. Inspection of such a document would assist the applicant to make the decision.
  - Key difference to r 5.2 is that it applies only to production of documents, not cross-examining people in court.
  - See Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193
- Preliminary discovery - application
  - If proceedings not yet commenced, preliminary discovery is sought through a summons supported by an affidavit – r 6.4(1)(c).
  - The affidavit will have to demonstrate how the order is appropriate in the circumstances given the rules i.e. reasonable inquiries have been made, another person possess information or documents that might assist etc.
- Discovery and notices to produce
  - Pt 21 of the UCPR provides for:
    - 1.Discovery, where you are seeking documents within a class or classes of documents or samples of documents within a class from the other party; and
    - 2.Notices to produce, where one party requires another party to produce specific documents
- Discovery (limits)
  - Discovery pertains to documents – this is construed broadly e.g. it can include text messages, emails, webpages etc.
  - To be discoverable, a document has to be ‘relevant to a fact in issue’ – r 21.2(4).
  - Scope of discovery limited by reference to the overriding purpose, s 56 CPA. Parties can no longer seek general discovery.
  - NB – as per r 21.7, discovered documents cannot be disclosed
  - r 21.3: party subject to an order for discovery complies by serving on the requesting party a list dealing with all of the documents (other than excluded documents) referred to in the order.
  - r 21.5: party rendering discovery has to make the documents available for inspection (generally within 21 days of the list being served).
  - Discovery not once-and-for-all – an ongoing obligation.
  - Discovery is verified by affidavit, together with solicitor’s certificate of advice (if appropriate): r 21.4.
- Notice to produce
  - Party can serve notice to produce any specified document or thing on another party (r 21.10).
  - Party served with notice needs to provide inspection of the document or thing within a reasonable time (usually 14 days).
  - Must be answered or an application to be excused from answering it made under r 21.11.
  - Documents called for must be relevant to a fact in issue (r 21.9 (2))
Subpoenas
- What is a subpoena?
  - According to r 33.1, a “subpoena” means an order in writing requiring the addressee:
    - (a) to attend to give evidence (a subpoena to attend), or
    - (b) to produce the subpoena or a copy of it and a document or thing (a subpoena to produce), or
    - (c) to do both of those things.’
- Formal requirements for a subpoena
  - r 33.3 specifies some formal requirements for subpoenas:
    - (1) A subpoena must be in the approved form.
    - (2) A subpoena must not be addressed to more than one person.
    - (3) Unless the court orders otherwise, a subpoena must identify the addressee by name or by description of office or position.
    - (4) A subpoena to produce must:
      - (a) identify the document or thing to be produced, and
      - (b) specify the date, time and place for production.
    - (5) A subpoena to attend to give evidence must specify the date, time and place for attendance.
    - NB – subpoena must be personally served on address – r 33.5.
- Subpoenas and conduct money
  - r 33.6(1):
    - “An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required.
  - What is conduct money?
    - r 33.1 states that “conduct money” means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.”
- Notice to admit
  - The ‘requesting party’ sends a notice to admit to the ‘admitting party’. The notice requests that the admitting party make certain admissions in favour of the requesting party. The admitting party has 14 days to respond. (rr 17.3, 17.4). Often used where you have facts that are material and relevant to a party’s case, but are not seriously in dispute
  - Can go not only to facts but authenticity of documents.
  - If the party does not admit, and the facts are then proved at trial, that party has to bear the costs of such proof.
  - Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [153]
- Interrogatories
  - Party or its representative is required to answer in writing, and usually on oath, specific questions prior to the trial.
  - Must obtain an order from the court requiring answers to specified interrogatories (r 22.1)
  - Application for an order for interrogatories may be made at any time and must be accompanied by a copy of the proposed interrogatories (r 22.1(2))
  - Court won’t make order unless satisfied order is necessary at the time it is made (r 22.1(4))
- Objection to produce documents founded on privilege
  - Objections to production of documents and answering of questions founded on privilege (r 1.9).
  - Client legal privilege does not mean the document need not be discovered, it is simply listed as a document that does not have to be produced for inspection.
  - Masking or redacting privileged parts of a document.
Procedure - Textbook
- Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114
  - Jurisdiction:
    - New South Wales Court of Appeal
  - Procedural History:
    - Local Court magistrate ordered RTA to provide preliminary discovery to Australian National Car Parks Pty Ltd (ANCP) under UCPR r 5.2. RTA appealed.
  - Original Dispute:
    - ANCP operates car parks, requires tickets or passes.
    - Seeks to sue entrants who parked without compliance, based on Conditions of Entry.
  - Material Facts:
    - ANCP knows registration numbers and parking dates of 294 vehicles, aims to claim liquidated damages for contract breach.
  - Issue:
    - Whether RTA should provide preliminary discovery of vehicle owners to ANCP.
  - Law/Statute in Contention:
    - UCPR r 5.2;
    - Road Transport (Vehicle Registration) Act 1997;
    - Freedom of Information Act 1982 (now Government Information (Public Access) Act 2009 (NSW)).
  - Precedence:
    - Norwich Pharmacal Co v Commissioner of Customs and Excise Commissioners [1974] AC 133 considered for discovery principles.
  - Judicial Opinions and Interpretation:
    - MASON P, with MCCOLL JA and BELL J agreeing, outlined UCPR r 5.2’s application:
      - on notice,
      - supported by affidavit,
      - and intended litigation.
      - Emphasized reasonable inquiries and potential assistance of information for litigation.
  - Legal Reasoning and Ratio Decidendi:
    - The court held that preliminary discovery under UCPR r 5.2 can be granted when the applicant made reasonable inquiries and the information sought tends to assist in ascertaining the defendant’s identity or whereabouts.
    - The availability of other information ascertainment means (e.g., FOI Act) does not negate the reasonableness of seeking an alternative remedy under UCPR r 5.2.
  - Result:
    - Appeal dismissed.
    - RTA ordered to provide preliminary discovery to ANCP.
  - Relevance to Modern Law:
    - This case illustrates the application of UCPR r 5.2 in obtaining preliminary discovery for the purpose of litigation, reinforcing the principle that discovery can be ordered when it tends to assist in identifying prospective defendants, provided reasonable inquiries have been made.
- Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35
  - Jurisdiction:
    - New South Wales Court of Appeal
  - Procedural History:
    - A Local Court Magistrate ordered the RTA to give preliminary discovery of the registered owners of 1,397 vehicle license plates to Care Park Pty Ltd under UCPR r 5.2.
    - An appeal to a single Supreme Court judge (Adams J) failed, prompting an appeal to the Court of Appeal.
    - A five-judge bench reviewed the case due to RTA’s contention that the 2007 RTA case was wrongly decided.
  - Original Dispute:
    - Care Park operates car parks and sought information on the registered owners of certain vehicles that violated parking conditions, for potential breach of contract lawsuits.
  - Material Facts:
    - Care Park required discovery to identify vehicle owners for legal action regarding parking violations, similar to the circumstances in a previous RTA case.
  - Issue:
    - Interpretation and application of UCPR r 5.2 concerning the threshold for granting preliminary discovery.
  - Law/Statute in Contention:
    - Uniform Civil Procedure Rules (UCPR) r 5.2, related to preliminary discovery.
  - Judicial Opinions and Interpretation:
    - The Court considered three interpretations of UCPR r 5.2, focusing on whether Care Park needed to demonstrate an intention to commence proceedings against the vehicle owners.
    - The RTA advocated for a strict interpretation requiring a clear purpose to sue, while Care Park argued for a more flexible approach.
  - Legal Reasoning and Ratio Decidendi:
    - The Court favored a practical and non-technical approach (Interpretation A), rejecting the need for a fixed intention to sue as a prerequisite for preliminary discovery.
    - It emphasized the rule’s purpose to assist parties lacking sufficient information to commence proceedings.
    - The decision clarified that the desire to bring proceedings, even if conditional, satisfies the rule’s requirements.
  - Result:
    - The appeal was dismissed, upholding the decision to grant preliminary discovery to Care Park.
    - The Court affirmed the practical application of UCPR r 5.2, facilitating preliminary discovery when parties intend to pursue legal action but lack necessary information.
  - Relevance to Modern Law:
    - This case clarifies the application of UCPR r 5.2 on preliminary discovery in NSW, particularly regarding the threshold requirements for proving an intention or desire to commence legal proceedings.
    - It underscores the court’s discretion in facilitating access to information necessary for potential legal actions, without demanding a definite intention to sue at the discovery stage.
Document Discovery
- Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 (8 September 2011
- Jurisdiction:
  - New South Wales Court of Appeal
- Procedural History:
  - Plaintiff sued 2UE for defamation regarding her sexual conduct with rugby league players.
  - 2UE’s defense included truth, requiring discovery of phones with incriminating content.
  - The primary judge struck out two imputations due to the plaintiff’s failure in discovery obligations.
  - The plaintiff appealed.
- Material Facts:
  - Plaintiff’s non-compliance with discovery obligations by not producing mobile phones believed to contain relevant evidence.
- Issue:
  - Whether failure to comply with discovery obligations justifies striking out parts of the plaintiff’s claim.
- Law/Statute in Contention:
  - Principles surrounding consequences of evidence destruction; Civil Procedure Act’s influence on procedural law in NSW.
- Precedence:
  - Reference to Clark v New South Wales for principles on evidence destruction;
  - recognition of the Civil Procedure Act in shaping procedural obligations.
- Judicial Opinions and Interpretation:
  - The court upheld that the power to dismiss or strike out claims for failure to comply with discovery is to be used sparingly, focusing on whether a fair trial can occur without the destroyed evidence.
  - Emphasized the statutory duty under the Civil Procedure Act for parties to assist in the justice process.
- Legal Reasoning and Ratio Decidendi:
  - Deliberate destruction or non-compliance with discovery obligations that impairs the other party’s case can be grounds for striking out claims.
  - This action aligns with duties under the Civil Procedure Act to ensure the just, quick, and cheap resolution of disputes.
- Result:
  - Affirmation of the primary judge’s decision to strike out two imputations from the plaintiff’s claim due to deliberate non-compliance with discovery obligations, constituting an abuse of process.
- Relevance to Modern Law:
  - This case highlights the judiciary’s discretion in dealing with non-compliance with discovery obligations, especially in the context of the Civil Procedure Act, emphasizing the balance between party obligations and the integrity of the judicial process.
- The discovery process
  - The process for discovery under the UCPR can be summarised as follows (Party A is the party receiving discovery and Party B is the party giving discovery):
    - 1. Party A files and serves a notice of motion (with supporting affidavit) seeking discovery from Party B pursuant to UCPR r 21.2.
      - The notice of motion will specify the order for discovery of documents within a class or classes of documents or samples of documents within a class (r 21.2).
      - A “class of documents” is defined by relevance to the facts in issue, or by the type of documents within a class, or in “such other manner as the court considers appropriate in the circumstances” (r 21.3).
    - 1. The notice of motion is heard (this is an interlocutory hearing) and the court may order discovery of documents within a class or classes of documents or samples of documents within a class (r 21.2).
      - The court does not order general discovery.
    - 1. Within 28 days of the order (or as the order specifies), Party B prepares a list of documents (r 21.3) which is divided into two parts (documents in the possession of Party B and documents which were in possession of Party B in the last six months).
      - The list needs to describe the documents. The list also states whether privilege is claimed in respect of the documents and the circumstances that give rise to privilege being claimed.
      - If the documents are not in the possession of Party B then Party B needs to indicate who he or she believes has possession of the documents.
    - 1. Discovery does not apply to an “excluded document” (see definition in r 21.1), but note the court may declare a document not to be an excluded document.
      - “Excluded documents” do not have to be included in the list (r 21.3(1)).
    - 1. The list must be accompanied by a supporting affidavit by Party B (r 21.4(2)) and a solicitor’s certificate of advice (r 21.4(3)).
      - The affidavit deposed by Party B verifies the list 662 and must state the specific matters listed in r 21.4(2).
      - The solicitor’s certificate of advice must state the matters set out in r 21.4(3) namely that the solicitor has advised Party B as to the obligations arising under an order for discovery and the solicitor is not aware of documents that are not on the list.
    - 1. Party B then makes the documents “readily accessible and capable of convenient inspection” for Party A (r 21.5).
    - 1. There is a continuing obligation on Party B to make available subsequently discovered documents (r 21.6).
      - This means that documents which become known after discovery has been carried out are to be made available to Party A.
      - Privileged documents that cease to be privileged also need to be made available.
    - 1. Except with the court’s leave (permission), no information from a document obtained as a result of discovery is to be disclosed, or used in other legal proceedings.
      - The exception to this rule is if the document has been received into evidence in open court (r 21.7).
    - 1. The court will not order discovery in personal injury cases unless the court “for special reasons” orders otherwise (r 21.8). Special reasons will exist if discovery is necessary for a fair trial.
- Evidence Types
  - Client evidence types
    - Witness statements
      - Becomes effidence once testimony is sworn-in
    - Affidavits
      - Must be before qualified witness
    - Expert evidence
  - Defendant evidence types
    - Notice to produce
      - Notice to produce for inspection
        
        Request to provide original document for inspection - mentioned in pleadings - must be relevant
        
        Very specific
      - Notice to produce for court
        
        Document needs to be produced to be admitted as evidence to court
        
        Must be submitted to use as evidence after notice to produce for inspection
    - Discovery
      - Discovery Test
        
        Relevance to one or more facts or issues
  - Third party evidence types
    - Subpoena
      - Order of the court
Practice Note SC Eq 11 Disclosure in the Equity Division
- Disclosure in the Equity Division
  - Commencement
    - 1. This Practice Note was issued on 22 March 2012 and commences on 26 March 2012.
  - Application
    - 2. This Practice Note applies to all new and existing proceedings in the Equity Division, except in the Commercial Arbitration List.
  - Purpose
    - 3. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings.
  - Disclosure
    - 4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.
    - 1. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.
    - 1. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out[:]
      - the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;
      - the classes of documents in respect of which disclosure is sought; and the likely cost of such disclosure.
  - Costs
    - 7. The Court may impose a limit on the amount of recoverable costs in respect of disclosure.
Electronic discovery reference model (EDRM)
EDRM is a community of e-discovery and legal professionals who create practical resources to improve e-discovery and information
- EDRM diagram,
  - which mapped the stages of e-discovery and has since become an industry-wide standard for managing the e-discovery process
  - EDRM Stages
    - Information Governance – Getting your electronic house in order to mitigate risk and expenses should e-discovery become an issue, from initial creation of ESI through its final disposition.
    - Identification – Locating potential sources of ESI and determining its scope, breadth and depth.
    - Preservation – Ensuring that ESI is protected against inappropriate alteration or destruction.
    - Collection – Gathering ESI for further use in the e-discovery process (processing, review, etc).
    - Processing – Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review and analysis.
    - Review – Evaluating ESI for relevance and privilege.
      - Two core metrics for assessing the effectiveness of a search or document categorization tool.
        
        Precision def
        
        ratio of responsive documents in a collection to those responsive documents retrieved
        
        5 / 500 docs found
        
        Recall def
        
        The ratio of responsive documents to the total number of responsive documents in the full collection
        
        5/5 good docs out of 500 docs
    - Analysis – Evaluating ESI for content and context, including key patterns, topics, people and discussion.
      - Assisted Review introduces another related metric called overturn rate.
        
        An overturn occurs when the category in which Assisted Review places a document is changed or overturned by a subject matter expert upon review, i.e. when a responsive document is found to be non-responsive or vice versa
    - Production – Delivering ESI to others in appropriate forms and using appropriate delivery mechanisms.
    - Presentation – Displaying ESI before audiences (at depositions, hearings, trials, etc), especially in native and near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience
Technology assisted review (TAR) def
- has been defined as “[a] process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document
  - In the review stage, TAR examines ESI for relevance, and in the analysis stage may be able to evaluate the ESI for other characteristics such as privilege or particular issues or topics
McConnell Dowell Constructors v Santam (2016) 51 VR 42
- Jurisdiction:
  - Victoria, Australia
- Context:
  - The case involved a claim related to the design and construction of a natural gas pipeline in Queensland.
  - The complexity of the case was marked by the vast volume of electronic or PDF documents generated during the construction contract and an associated arbitration, amounting to approximately 4 million documents, reduced to about 1.4 million deemed relevant for the proceedings.
- Issue:
  - The feasibility and permissibility of employing predictive coding or technology-assisted review (TAR) for document discovery in a large-scale litigation context.
- Key Points:
  - Traditional manual discovery processes were deemed impractical and disproportionate due to the massive volume of documents and the associated costs.
  - The court considered the application of predictive coding (TAR), a method involving the use of software to “train” a computer to recognize and categorize documents as relevant or not based on concepts relevant to the issues in the proceeding.
- Legal Precedents and Comparative Analysis:
  - The court referred to several international cases, including Pyrrho Investments Ltd v MWB Property Ltd [2016] from the UK, highlighting the acceptance and endorsement of TAR in other jurisdictions.
  - The TAR process is detailed as being more sophisticated and potentially more accurate than manual review, with studies cited indicating that TAR might lead to higher accuracy in identifying relevant documents.
- Rationale:
  - Predictive coding was seen as a cost-effective and proportionate approach to discovery in cases involving large data sets, supported by evidence of its accuracy and efficiency compared to traditional manual review.
  - The process involves initial training of the software with a representative sample of documents, followed by rounds of quality assurance exercises to validate the software’s categorization decisions.
- Judicial Opinion:
  - The court endorsed the use of predictive coding in the McConnell Dowell case, aligning with international trends and recognizing the necessity of employing technology to manage discovery efficiently in large document cases.
  - The decision was underpinned by a broader consideration of the principles of proportionality and the need to conduct discovery in a way that is both cost-effective and conducive to the fair resolution of disputes.
- Relevance to Modern Law:
  - This case marks a significant acknowledgment within the Australian legal system of the utility and acceptability of TAR in managing discovery processes in complex litigation.
  - It reflects a shift towards integrating technological solutions in legal procedures to address the challenges posed by digital documentation and large-scale data analysis.
Subpoena
- Waind v Hill & National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 at 381
  - Moffitt P set out the three stages arising in respect of a subpoena to produce
    - The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge.
    - The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents.
    - The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.
      - It is the third step which alone provides material upon which ultimate decision in the case rests.
  - NOW UCPR r 33.4
- Grounds for setting aside a subpoena to produce
  - A subpoena can be set aside, whole or in part, on the grounds that it is an abuse of process because of the following:
    - A subpoena cannot be used as a substitute for discovery:
      - The Commissioner for Railways v Small (1938) 38 SR 654 at 574 and NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [19] (see [12.410]).
      - An issuing party is “not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant”:
        
        [2002] NSWCA 139 at [27].
    - A subpoena cannot be oppressive. A subpoena may be oppressive if it has insufficient particularisation of the documents called for.
      - This creates oppression because the recipient is required to judge what documents are caught by the subpoena.
      - A subpoena could also be oppressive where compliance is too onerous.
        
        This is demonstrated where an excessive burden is placed on the producing party, for example, in NSW Commissioner of Police v Tuxford (see [12.410]).
      - Tuxford called for all “originals or copies” of documents that were located in many locations. This was found to be oppressive.
  - A subpoena cannot have an improper purpose.
    - For example, the subpoena may seek documents not for the purpose of the litigation but for some spurious purpose such as a private purpose or for use in other proceedings.
  - An absence of the apparent relevance of documents is a sufficient ground to have it set aside, see Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306.
  - A subpoena must have a legitimate forensic purpose: see [12.400].
  - A subpoena which is an abuse of process may be set aside before the recipient is put to the trouble of gathering the documents sought: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [21]
- Drafting affidavits
  - The approved form for an affidavit is Form 40
  - Judges and legal practitioners have also provided suggestions as to best practice for drafting affidavits which include:2
    - identify the deponent and their relationship to the dispute;
    - set out the matters in the affidavit in a logical manner – this may or may not be a chronological sequence;
    - use the witness’s own words;
    - conversations should be stated in direct speech, that is, the first person – I said, she said;
    - state facts the witness has personal and actual knowledge of, not opinions or assumptions unless the affidavit is for an expert witness;
    - be concise but complete;
    - use headings and in longer affidavits, a table of contents;
    - avoid irrelevant material;
    - avoid hearsay, except in interlocutory applications, as an affidavit must be confined to facts the witness can prove from direct knowledge; and
    - avoid making submissions or arguments
  - Revised Professional Conduct and Practice Rules 1995 (Solicitors’ Rules) rule 17
- Ying v Song [2010] NSWSC 1500
- dispute between former family members over shares in the second defendant (Budget Scaffold Supplies Pty Ltd, to which I will refer as BSS) and in respect of amounts recorded at one stage in the financial records of BSS as a shareholder loan from the plaintiff (Ming Ying) to the company.
- Ming Ying’s sister (Hua Ying) was formerly married to the first defendant (Lida Song).
  - There are Family Court proceedings presently on foot between the couple
  - According to Ming Ying, he paid some $106,025 to acquire shares in BSS, shares which Lida Song later transferred back to himself, without Ming Ying’s consent, in 2005.
  - According to Lida Song, however, the shares were only transferred to Ming Ying (and the company’s records recorded shareholder loans by Ming Ying) as part of an attempt to present a false impression of Ming Ying’s assets in Australia to the Department of Immigration so as to assist in Ming Ying’s attempt to obtain permanent residency in Australia
- much of the later affidavit evidence must have been prepared by cutting and pasting material from Mr Ying’s earlier affidavits – even material that had in the interim been corrected by other affidavits sworn by Mr Ying
  - This may diminish the reliability and hence the weight to be accorded to that evidence (on any of the various versions).

Week 8: Interlocutory Applications and Injunctions

The court has power to order a plaintiff to give security for the defendant’s cost of defending the plaintiff’s claim and can order a stay of proceedings until the security is given
s r 2.1 and r 42.21 of the UCPR, s 67 of the CPA and, in respect of corporations, from s 1335 of the Corporations Act 2001 (Cth).
Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245
- Jurisdiction:
  - New South Wales Court of Appeal - Binding in NSW
- Parties:
  - Appellant:
    - Wollongong City Council
  - Respondent:
    - Legal Business Centre Pty Ltd (LBC)
- Procedural History:
  - The appellant sought leave to appeal an interlocutory order that dismissed its application for security for costs against the respondent.
  - The Court of Appeal granted leave and overturned the initial decision, ordering LBC to provide security for costs.
- Original Dispute:
  - Wollongong City Council applied for an order for security for costs against LBC, citing concerns over LBC’s financial capacity to cover costs if ordered to do so.
- Current Reason for Trial:
  - To appeal the trial judge’s refusal to grant an order for security for costs.
- Material Facts:
  - The trial judge dismissed the Council’s application based on his assessment of LBC’s financial circumstances and discretionary considerations.
- Issue Raised:
  - Whether the trial judge erred in his assessment of the respondent’s financial circumstances and in refusing the application for security for costs.
- Laws/Statutes in Contention:
  - Uniform Civil Procedure Rules 2005 (UCPR), r 42.21
  - Corporations Act 2001 (Cth), s 1335(1)
- Precedences:
  - Fiduciary v Morningstar Research [2004] NSWSC 664
  - Morris v Hanley [2000] NSWSC 957
  - Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93
- Tests and Principles:
  - The court adopts a practical common-sense approach to examining the financial affairs of a corporation for security for costs.
  - The defendant bears the onus of proving the plaintiff’s inability to pay litigation costs if unsuccessful.
  - Factors considered in exercising discretion include risk of unsatisfied costs orders, whether the order stifles a claim, and the conduct’s effect on the plaintiff’s finances.
- Judicial Opinions:
  - The Court of Appeal agreed that the trial judge erred in assessing LBC’s financial position and in his discretionary decision not to grant security for costs.
  - It emphasized the necessity of a practical approach to evaluating a corporation’s financial status and the established principles guiding the discretion to order security for costs.
- Ratio Decidendi:
  - The decision to order security for costs should be based on a practical assessment of the corporation’s financial affairs and the established principles for exercising such discretion.
  - The appellant successfully demonstrated that LBC, likely unable to cover costs if the proceedings failed, justified the need for security for costs.
- Conclusion and Relevance to Modern Law:
  - The case underscores the courts’ discretion in ordering security for costs, emphasizing the importance of a defendant proving the plaintiff’s potential inability to pay litigation costs.
  - This decision reinforces the principles guiding such discretion and highlights the procedural and substantive considerations in applications for security for costs, reinforcing the courts’ commitment to a balanced approach in safeguarding the interests of both parties in litigation.
Idoport Pty Ltd v National Australia Bank Ltd; Idoport Pty Ltd & Market Holdings Pty Ltd v Argus [2001] NSWSC 744
- Jurisdiction:
  - New South Wales Supreme Court - Binding in NSW
- Parties:
  - Plaintiffs:
    - Idoport Pty Ltd; Idoport Pty Ltd & Market Holdings Pty Ltd
  - Defendants:
    - National Australia Bank Ltd; Argus
- Procedural History:
  - The case concerns an application by the defendants for an order of security for costs against the plaintiffs.
- Original Dispute:
  - The dispute originates from the defendants’ application for security for costs, implying concern over the plaintiffs’ ability to cover costs if the defendants are successful.
- Current Reason for Trial:
  - To consider whether the court should order the plaintiffs to provide security for the defendants’ costs of the proceedings.
- Material Facts:
  - The court’s discretion to award security for costs is influenced by a wide range of factors, aiming to balance protecting the defendant from irrecoverable costs and not unjustly preventing a plaintiff from litigating due to financial incapacity.
- Issue Raised:
  - The exercise of judicial discretion in ordering security for costs based on the totality of circumstances and relevant factors.
- Laws/Statutes in Contention:
  - Corporations Act
  - Inherent jurisdiction and rules of court regarding security for costs for corporations
- Precedences:
  - Rosenfield Nominees Pty Ltd v Bain and Co (1988) 14 ACLR 467
  - Gentry Bros Pty Ltd v Wilson Brown and Associates Pty Ltd (1992) 8 ACSR 405
  - KP Cable Investments guidelines on security for costs applications
- Tests and Principles:
  - The decision to order security for costs is discretionary, depending on various factors:
    - 1. Promptness of the application.
    - 1. The strength and bona fides of the applicant’s case.
    - 1. Whether the applicant’s impecuniosity was caused by the respondent’s conduct.
    - 1. Whether the application is oppressive or denies the right to litigate.
    - 1. The willingness of those benefiting from the litigation to provide security.
    - 1. The personal undertaking of costs by those behind the company.
    - 1. Security is usually ordered against parties acting in the role of a plaintiff rather than defendants.
- Judicial Opinions:
  - Justice Einstein emphasized the unfettered nature of the court’s discretion in these matters, noting the need to protect defendants while also considering the financial condition of plaintiffs, particularly in the context of corporations.
  - The judgment reiterates the principle that poverty should not be a bar to litigation but recognizes that security for costs serves to ensure that defendants are not left out-of-pocket by impecunious plaintiffs.
- Ratio Decidendi:
  - The discretion to order security for costs is exercised with an aim to balance the risk of irrecoverable costs to the defendant against unjustly preventing the plaintiff from pursuing legitimate claims due to financial incapacity.
  - Factors such as the timeliness of the application, the merits of the case, the plaintiff’s financial condition, and the potential for the order to be oppressive are considered.
- Conclusion and Relevance to Modern Law:
  - This case underscores the court’s broad discretion in security for costs applications, highlighting the importance of balancing fair protection for defendants with the risk of unfairly barring financially disadvantaged plaintiffs from accessing justice.
  - It reaffirms the necessity of considering each case’s unique circumstances and the relevant factors in making such orders, reflecting the courts’ careful approach to ensure fairness and justice in the litigation process.
Interim injunctions
- interim junction def or interlocutory injunction def
  - S 18 of UCPR - need notice of motion form 20 UCPR
    - Notice of motion form needs to be accompanied by supporting affidavit indicating reason for notice
  - To obtain an interlocutory injunction an applicant must show that there is a “prima facie case” and that the “balance of convenience” favours the order being made.
  - An interim injunction will usually continue for a short period of time (measured in days).
    - The District Court has a limited power to grant temporary injunctions for a period not exceeding 14 days or exceeding that period if necessary to enable Supreme Court proceedings to be commenced or heard:
      - District Court Act 1973 (NSW) s 141, also see s 140
    - Federal Court has power to make interlocutory injunctions as the Court “has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”:
      - Federal Court of Australia Act 1976 (Cth) s 23
- Injunction types:
  - Mandatory injunction: order requiring a party to act;
  - Prohibitory injunction: order requiring a party to refrain from acting;
  - Interim injunction: order in force for a short period of time;
  - And Final or perpetual injunction:
    - order finally determines rights of parties.
  - Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46
    - An interlocutory injunction was ordered that restrained the ABC from broadcasting or otherwise publishing any part of a documentary known as “The Fisherman” that imputed or implied that O’Neill was responsible for or is suspected of being responsible for the disappearance or murder of children commonly referred to as the Beaumont children or that O’Neill is a multiple killer of children
    - Prima Facie case meaning
      - it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
  - Two criteria for an interlocutory injunction
    - An applicant must establish (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57):
      - A prima facie case in relation to the substantive litigation; and
      - Balance of convenience: weighing relative inconvenience and injury of plaintiff and defendant.
    - 1. What does the ‘balance of convenience’ entail? Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623, expresses it thus:
      - ‘whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’
- Freezing orders def are otherwise known as Mareva injunctions or Mareva orders.
  - Jackson v Sterling Industries Ltd (1987) 162 CLR 612
  - Mareva orders are named after one of the earliest cases which allowed their use:
    - Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 50
  - A Mareva order prevents a party from disposing of assets to frustrate the enforcement of a judgment.
    - The power to make such an order derives from the court’s equitable inherent jurisdiction.
  - An application for a freezing order should comply with the substance of the requirements contained in Practice Note SC Gen 14
- Jackson v Sterling Industries Ltd (1987) 162 CLR 612
  - Facts
    - The plaintiff, who sued the defendant for breach of s 52 of the Trade Practices Act 1974 (Cth), applied to the Federal Court for an order that the respondent pay $3 million into court as security for the satisfaction of any judgment that might be entered against him in the application.
    - The Federal Court judge found that the plaintiff had a good chance of success and ordered that the defendant “provide security in the sum of $3,000,000 in such manner and form as the parties may agree or, in default of agreement, the Court or its Registrar may approve”.
  - The defendant appealed.
    - In the High Court, Mason CJ, Wilson, Brennan, Deane and Dawson JJ (Toohey and Gaudron JJ dissenting) found that the order should not have been made.
    - However, the court recognised the power of courts to grant Mareva injunctions.
    - The power derived from the inherent power of the court to prevent an abuse of its own process or in the general grants of statutory powers to superior courts to make interlocutory orders wherever just or appropriate.
- The majority judgment subsequently made explicitly clear that a freezing order is not to be used to provide security to a plaintiff.
- Marango Investments Pty Ltd v Kingdom Towers 4 Pty Ltd [2019] NSWSC 801
  - Jurisdiction:
    - New South Wales Supreme Court - Binding in NSW
  - Parties:
    - Plaintiff:
      - Marango Investments Pty Ltd
    - Defendants:
      - Kingdom Towers 4 Pty Ltd (First Defendant); Andrew Brodner (Second Defendant as guarantor)
  - Procedural History:
    - The plaintiff initiated proceedings against Kingdom Towers for breach of contract regarding the sale of property, and against Andrew Brodner as the guarantor.
    - A freezing order was agreed upon by consent to prevent dissipation of certain assets.
  - Original Dispute:
    - Breach of contract by Kingdom Towers for failing to make full payment under a property sale contract.
    - Andrew Brodner was implicated as the guarantor of Kingdom Towers’ obligations.
  - Current Reason for Trial:
    - The matter concerns the plaintiff’s application for a freezing order to include additional assets (shares held by the defendants) beyond the initially specified properties.
  - Material Facts:
    - The plaintiff demonstrated a strong case for damages or payment under the guarantee for about $2,070,625, necessitating a freezing order to prevent asset dissipation.
  - Issue Raised:
    - Whether the plaintiff established a sufficient risk of asset dissipation by the defendants to justify a freezing order.
  - Laws/Statutes in Contention:
    - Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 25.14(1)(b) and r 25.14(4)(b)(ii)
  - Precedences:
    - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
    - Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
  - Tests and Principles:
    - The court must ensure that its judgment will not be rendered ineffective by the defendants’ disposal or reduction in the value of their assets.
    - A freezing order is granted based on a good arguable case and evidence suggesting a risk of asset dissipation that could undermine a potential judgment.
  - Judicial Opinions:
    - Justice Robb was convinced that the absence of evidence or an explanation from the defendants regarding their asset disposition activities justified the imposition of a freezing order.
    - However, an amended order as sought by the plaintiff at the hearing was denied due to lack of notice and evidence on the value of the newly included assets.
  - Ratio Decidendi:
    - The court’s decision to grant a freezing order was based on the balance of probabilities, considering the strength of the plaintiff’s case and the lack of evidence from the defendants to counter the risk of asset dissipation.
  - Conclusion and Relevance to Modern Law:
    - This case illustrates the court’s approach in granting freezing orders to preserve the integrity of its judgment against potential asset dissipation by defendants.
    - It emphasizes the importance of presenting a strong arguable case and evidence of risk to asset dissipation.
    - The decision reflects the judicial discretion involved in protecting the efficacy of court processes and ensuring that justice is effectively administered, underscoring the critical balance courts maintain between safeguarding a plaintiff’s interests and ensuring fairness to defendants.
- Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
  - Jurisdiction:
    - High Court of Australia - Binding across Australia
  - Parties:
    - Appellants:
      - Mr. and Mrs. Cardile, and Ultra Modern Pty Ltd
    - Respondent:
      - LED Builders Pty Ltd
  - Procedural History:
    - LED Builders Pty Ltd initiated proceedings against Eagle Homes Pty Ltd for copyright infringement.
    - Subsequently, LED obtained a judgment against Eagle Homes.
    - Seeking to secure assets for satisfaction of the yet-to-be-quantified damages, LED obtained Mareva orders against Eagle Homes, the Cardiles (shareholders of Eagle Homes), and Ultra Modern Pty Ltd (a company set up and controlled by the Cardiles).
  - Original Dispute:
    - Copyright infringement by Eagle Homes Pty Ltd in relation to building plans owned by LED Builders Pty Ltd.
    - The dispute extended to securing assets to satisfy the judgment.
  - Current Reason for Trial:
    - The High Court considered the appeal against the Mareva injunctions, focusing on whether such injunctions could extend to third parties not directly involved in the proceedings or shown to have an interest in the judgment debtor’s assets.
  - Material Facts:
    - The Cardiles, after receiving large dividends from Eagle Homes, established Ultra Modern Pty Ltd.
    - LED sought Mareva orders to freeze assets of Eagle Homes, the Cardiles, and Ultra Modern Pty Ltd to prevent dissipation and ensure satisfaction of the judgment.
  - Issue Raised:
    - The appropriateness of Mareva orders against third parties who have not been shown to possess an interest in the assets of the judgment debtor.
  - Laws/Statutes in Contention:
    - Uniform Civil Procedure Rules 2005 (NSW), specifically rules related to freezing orders.
    - Federal Court Act, s 23, regarding the court’s power to issue orders.
  - Precedences:
    - The court discussed English authorities and Australian cases, including CSR Ltd v Cigna Insurance Australia Ltd and Jackson v Sterling Industries Ltd, to outline the principles underpinning the Mareva injunction and its application to third parties.
  - Tests and Principles:
    - Mareva injunctions aim to prevent the frustration of court processes by securing assets against which a judgment might be satisfied.
    - The jurisdiction for such injunctions stems from the court’s power to protect the integrity of its processes and ensure the effective administration of justice, including preserving the efficacy of execution against judgment debtors.
    - The court must exercise caution, ensuring Mareva orders are not used oppressively or to unjustly restrict commerce.
  - Judicial Opinions:
    - The High Court clarified the limits of Mareva injunctions, emphasizing that while they can extend to third parties in appropriate cases, it is crucial to establish a direct link between the third party’s assets and the judgment debtor.
    - The court highlighted the discretionary nature of such orders and the necessity for a principled and analytical approach to their issuance.
  - Ratio Decidendi:
    - Mareva orders can be justified against third parties when there is a substantive connection between the third party’s assets and the judgment debtor, reflecting the courts’ broad power but emphasizing the need for a careful and principled exercise of discretion.
  - Conclusion and Relevance to Modern Law:
    - Cardile v LED Builders Pty Ltd signifies a critical examination of the scope of Mareva injunctions, underscoring the importance of ensuring such orders are grounded in clear legal principles and used judiciously to balance the effective administration of justice with the rights of third parties.
    - This decision has profound implications for the use of asset preservation orders in Australian law, illustrating the courts’ cautious approach to extending such orders beyond the direct parties to litigation.
- Practice Note SC Gen 14 Supreme Court – Freezing Orders (also known as “Mareva orders” or “asset preservation orders”)
- Search orders def are otherwise known as Anton Piller orders:
  - Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55.
  - Anton Piller orders have a statutory basis in the UCPR, however, the UCPR preserve the court’s inherent, implied or statutory jurisdiction.
  - Search orders authorise the seizure of documents and other evidence.
    - Search orders are obtained on an ex parte basis.
  - The requirements for the granting of a search order are:
    - (a) that an applicant seeking the order has a strong prima facie case on an accrued cause of action; and
    - (b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and
    - (c) there is sufficient evidence in relation to a respondent that:
      - (i) the respondent possesses important evidentiary material; and
      - (ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.
- Practice Note SC Gen 13 Supreme Court – Search Orders (also known as “Anton Piller Orders”)
  - Findex Group Ltd v McKay [2019] NSWCA 93
    - Jurisdiction:
      - New South Wales Court of Appeal - Binding in NSW
    - Parties:
      - Applicants:
        
        Findex Group Ltd and others
      - Respondent:
        
        David McKay
    - Procedural History:
      - The applicants obtained preliminary discovery orders to identify McKay as the publisher of allegedly defamatory statements and secured a search order to preserve evidence for potential legal action.
      - Following the execution of the search order, litigation over access to and the use of seized documents ensued.
      - The Equity Division’s decision to restrict applicants’ access to the seized documents prompted an appeal.
    - Original Dispute:
      - Claims against McKay for misleading or deceptive conduct and defamation by Findex Group and associated parties, following the publication of certain statements.
    - Current Reason for Trial:
      - The appeal centered on the applicants’ right to unrestricted access to documents seized under a search order and their use in anticipated legal proceedings.
    - Material Facts:
      - The search order was executed to secure evidence against McKay, potentially supporting claims of misleading or deceptive conduct and defamation.
      - A variety of documents were seized, with disputes arising over privilege, relevance, and the applicants’ rights to inspect and use these documents.
    - Issue Raised:
      - Whether the search order’s scope permits the applicants to use seized documents for investigating potential causes of action beyond the preservation of evidence.
    - Laws/Statutes in Contention:
      - Uniform Civil Procedure Rules (UCPR) r 25.20 concerning the basis for granting a search order.
    - Findings of Trial Judge:
      - Ward CJ in Eq restricted applicants’ access to seized documents, emphasizing the primary purpose of a search order as preserving evidence, not facilitating discovery or investigation of potential claims.
      - The Court found the applicants’ intended use of the documents as exceeding the search order’s purpose.
    - Judicial Opinions:
      - The Court of Appeal upheld the trial judge’s decision, agreeing that the extraordinary relief granted by a search order should not be converted into an investigatory tool.
      - The Court emphasized the specific and limited purpose of search orders in the preservation of evidence for existing or anticipated litigation.
    - Ratio Decidendi:
      - The Court of Appeal decided that search orders cannot be used for broad investigatory purposes and that documents seized under such orders should be used strictly within the confines of preserving evidence for identified legal claims.
    - Conclusion and Relevance to Modern Law:
      - Findex Group Ltd v McKay reinforces the principle that search orders are designed to secure evidence for existing or anticipated proceedings and are not intended to enable parties to conduct broad investigations into potential claims.
      - This decision highlights the judiciary’s cautious approach to ensuring that the extraordinary measures provided by search orders are not misused, maintaining the balance between effective legal remedy and the protection of privacy and procedural rights.
Interlocutory Applications and Injunctions
- What is an interlocutory application?
  - An interlocutory application def is an application made in a proceeding before a final determination for one of two purposes:
    - 1. Preserving the status quo until the parties’ rights are finally determined e.g. interlocutory injunction;
    - 1. Dealing with the formalities which it is necessary to attend to before trial, such as the provision of particulars, discovery and interrogation.
- The broad procedure for interlocutory applications
  - Interlocutory applications are generally sought by notice of motion supported by an affidavit (part 35 UCPR).
  - If an application is heard ex parte before the institution of proceedings, it is usually on the proviso that proceedings are issued forthwith.
  - r 18.1 of the UCPR: ‘An interlocutory or other application is to be made by motion unless these rules otherwise provide.’
  - r 18.2(1): generally speaking, a notice of motion must be filed and served on each person affected by the proposed order. Exceptions found in r 18.2(2).
- What must a notice of motion contain?
  - r 18.3 spells out some of the things a notice of motion must do, including:
    - Identifying the person seeking the order;
    - Identifying each person affected by the order;
    - If a person is not already a party, it must state an address for service; and
    - The notice must also state concisely the nature of the proposed order.
- Notices of motion – some more requirements
  - r 18.4: unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion.
  - r 18.5: a notice of motion must be personally served if the person on whom it is to be served is not a party to the proceedings or is not an active party (i.e. they haven’t entered an appearance).
  - r 18.7: if you have served the notice of motion in accordance with the rules, and the other party doesn’t turn up, then the Court can deal with the motion in their absence.
- Pro forma notice of motion
- Some types of interlocutory orders
  - Security for costs;
  - Interlocutory injunctions;
  - A Mareva order, also known as a freezing order; and
  - An Anton Piller order, also known as a search order.
- Security for costs
  - What is a security for costs? An order whereby the defendant applies to the court asking for the plaintiff to provide some kind of security for the payment of costs in the event that the plaintiff fails in their proceedings.
  - r 42.21: 6 circumstances in which a security may apply:
    - Where plaintiff is ordinarily resident outside Australia;
    - Where address of plaintiff is misstated or omitted from originating process, and reason to believe this was done with intention to deceive;
    - Where plaintiff has changed their address, and reason to believe this was done to
    - avoid the consequences of the proceedings;
    - If there is reason to believe that a corporation won’t be able to pay the defendant’s costs e.g. because it is bankrupt;
    - Where the plaintiff is suing for someone else’s benefit and appears unable to pay for defendants costs; and
    - If there is reason to believe that the plaintiff has divested assets with intention of avoiding consequences of proceedings.
  - r 42.21(1B): if the plaintiff is a natural person, a security can’t be imposed simply because they are impecunious.
  - r 42.21(1A) lists the many different factors that the Court can take into account in weighing the interests of the plaintiff and the defendant. Some are:
    - (a) the prospects of success or merits of the proceedings;
    - (b) the genuineness of the proceedings;
    - (d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct;
    - (f) whether an order for security for costs would stifle the proceedings; and
    - (g) whether the proceedings involves a matter of public importance.
- Injunctions
  - Injunction: a court order of an equitable nature requiring a person to do, or refrain from doing, a particular action.
  - Injunctions can come in various shapes:
    - Mandatory injunction: order requiring a party to act;
    - Prohibitory injunction: order requiring a party to refrain from acting;
    - Interim injunction: order in force for a short period of time; and
    - Final or perpetual injunction: order finally determines rights of parties.
  - Injunctions are creatures of equity. Today the powers of the NSW Supreme Court to grant injunctions are codified in s 66 of the Supreme Court Act 1970 (NSW).
  - There is also provision made under part 25 of UCPR for a range of injunctions, including in relation to:
    - The preservation of property (r 25.3);
    - The sale of property where the property is likely to deteriorate or perish (r 25.4);
    - The interim distribution of property or income rr (25.5-6);
    - An urgent matter prior to the commencement of proceedings (r 25.2(c)).
- The usual undertaking as to damages
  - Applies for interlocutory injunctions, Mareva orders and Anton Piller orders.
  - r 25.8: with the usual undertaking as to damages, the plaintiff submits to give compensation to another party (it could be the defendant, it could be someone else) due to the operation of the interlocutory order.
  - If the court determines at trial that the injunction shouldn’t have been made, it conducts an inquiry as to damages, which the plaintiff then has to cover as part of the usual undertaking.
- Two criteria for an interlocutory injunction
  - An applicant must establish (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57):
    - 1. A prima facie case in relation to the substantive litigation; and
    - 1. Balance of convenience: weighing relative inconvenience and injury of plaintiff and defendant.
    - 1. What does the ‘balance of convenience’ entail? Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623, expresses it thus: ‘whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
- Factors going to the balance of convenience
  - A non-exhaustive list of factors relevant to determining where the balance of convenience lies:
    - The respondent’s intention to carry out threat;
    - The relative damage to both parties if the injunction were granted;
    - Where making injunction would lead inevitably to breach;
    - Where there are difficulties in supervising compliance;
    - The possibility the plaintiff will suffer irreparable damage if an injunction is not granted;
    - Whether or not other forms of relief such as damages will be an adequate remedy;
    - The applicant’s performance in making their application;
    - Where concerned with contracts: if specific performance would be refused, then an injunction won’t be granted; and
    - The impact of the injunction on third parties.
- Appeals from orders granting interlocutory injunctions
  - Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156.
    - The Full Bench argued that the decision to allow an appeal of an interlocutory injunction revolved around 2 key considerations:
      - Whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered; and
      - Whether substantial injustice would result if leave were refused supposing the decision to be wrong
- Mareva orders
  - A Mareva order is a special type of order restraining the defendant from dealing with the whole or part of their assets pending the outcome of proceedings.
  - Designed to prevent a defendant abusing the processes of the court by hiding or dissipating their assets in order to frustrate the ability of the plaintiff to recover damages
  - Historically, Mareva orders stemmed from the Court’s inherent jurisdiction.
    - They got their name from the case of Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213.
    - Today, Mareva orders are also provided for by UCPR Pt 25 Div 2 and Practice Note SC Gen 14: Supreme Court – Freezing Orders.
    - cl 6 of Practice Note SC Gen 14 confirms that a freezing order is an extraordinary remedy.
- Mareva orders – when are they appropriate?
  - r 25.14: Mareva orders can be made if two criteria are fulfilled:
    - (1): a judgment has been given in favour of the applicant or an applicant has a good arguable case; and
    - (4): “(a) the judgment debtor, prospective judgment debtor or another person absconds.
    - (b) the assets of the judgment debtor, prospective judgment debtor or another person are:
      - (i) removed from Australia or from a place inside or outside Australia, or
      - (ii) disposed of, dealt with or diminished in value.”
  - r 25.14(5): Mareva orders can be sought against third-parties, but stricter criteria apply.
- An application for a Mareva order
  - An application for a Mareva order is made by way of a motion supported by an affidavit.
  - According to cl 20 of Practice Note SC Gen 14, the affidavit has to attest to a few things, including:
    - The basis of the claim for substantive relief;
    - The amount of the claim;
    - If the application is made ex parte, then the applicant has to include in it their knowledge of any possible defence;
    - The applicant also has to include their knowledge of the nature and value of the respondent’s assets;
    - The affidavit has to include the matters referred to in r 25.14; and
    - The affidavit has to reveal the identity of any person, other than the respondent, who the applicant believes may be affected by the order, and how they may be affected.
  - Applicant is to give usual undertaking as to damages: cl 16 of Supreme Court Practice Note 14.
    - Extreme care needed in making such an order.
    - Value of the assets covered by a Mareva order should not exceed the likely maximum amount of the applicant’s claim and order should exclude dealings by the respondent with its assets for legitimate purposes: Practice Note cl 11, 12.
    - Ex parte Mareva orders generally only for short period of time so respondent has opportunity to be heard: Practice Note cl 9.
    - Operate in personam (i.e. does not attach to the property itself).
- Anton Piller orders
  - An Anton Piller order (often known as a ‘search order’) compels the defendant to allow the plaintiff or its agents to inspect their property and premises, and allows for the search, preservation and seizure of documents and other evidence.
  - Derive their name from Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779.
  - Initially derived from the Court’s inherent jurisdiction, but now find expression in Pt 25 Div 3 of the UCPR and Practice Note SC Gen 13 Supreme Court – Search Orders.
- Three essential criteria for the grant of an Anton Piller order
  - r 25.20 specifies that for a search order to be granted, there needs to be:
    - 1. A strong prima facie case;
    - 1. A potential or actual loss or damage to the applicant that will be serious if the order is not made; and
    - 1. Sufficient evidence both that the respondent possesses important evidentiary material and that there is a real possibility that they might destroy such material or cause it to be unavailable for use in evidence.
      - See Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77
- Application for an Anton Piller order
  - An application for an Anton Piller order is made by way of motion supported by affidavit.
  - According to cl 8 of Practice Note SC Gen 13 Supreme Court, the affidavit in support must:
    - Describe the things in relation to which the order is sought;
    - State the address of the premises to be searched, including whether these are private or business premises;
    - Outline why the order is sought, including why there is a real possibility that the evidence will be destroyed or made unavailable;
    - Detail the prejudice, loss or damage likely to be suffered by the applicant if the order is not made;
    - The name, address, firm and commercial litigation experience of an independent solicitor who consents to serving the order and supervising its execution; and
    - Lastly, if the premises to be searched are or include residential premises, the applicant has to state whether or not they believe that the only occupant of the premises is likely to be a female, a child under the age of 18, or a “vulnerable” person.
- Independent solicitors
  - According to cl 11 of Practice Note SC Gen 13 Supreme Court, an independent solicitor supervising an order is an important safeguard against abuse.
  - Independent solicitors:
    - Can’t be a member or employee of the applicant’s firm of solicitors;
    - Should be a solicitor experienced in commercial litigation, preferably in the execution of search orders.
  - Have a number of important functions spelled out in cl 11.
- Anton Piller orders – some other characteristics
  - Various clauses of Practice Note SC Gen 13 Supreme Court:
    - cl 6: the search party has to include the independent solicitor plus a solicitor or solicitors representing the applicant. It may be necessary that it include other, more specialised persons e.g. an independent computer expert.
    - cl 7: an “order should be clear about the maximum number of persons permitted to be in the search party.
      - The number of people in the search party should be as small as is reasonably practicable.”
    - cl 18: just like Mareva orders, the making of a search order will usually be made contingent upon the applicant giving the usual undertaking as to damages.
- Obligation of candour
  - Injunctions, Mareva orders and Anton Piller orders are often sought urgently on an ex parte basis.
    - The absence of the other party is countervailed through the applicant’s obligation of candour.
    - The obligation of candour is an obligation to bring to th court’s attention all the material facts, even if those facts are detrimental to the applicant’s case.
  - Includes raising all the relevant matters which would have been raised by the opposing party if he or she had been present.
  - Applies even if non-disclosure was inadvertent.

Week 9: Costs and Settlement

Costs and Settlement
- What are costs?
  - Costs are the actual amounts a party is charged or may be charged for legal services provided by a law practice related to the litigation.
  - s 3 of the Civil Procedure Act 2005 (NSW) defines costs as ‘costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.’
- Costs agreements
  - Part 4.3 Division 4 of the Legal Profession Uniform Law (NSW) provides for written costs agreements between solicitors and their clients which form the basis of the solicitors’ professional fees.
  - s 174: a law practice must:
    - Specify the basis on which costs will be calculated e.g. hourly rate; and
    - Notify the client of any significant change in costs.
  - Costs agreement can be expressed as being on a conditional basis.
- On what basis are costs calculated?
  - Two main types of cost bases:
    - 1. Ordinary basis:
      - Ordered pursuant to s 98(1)(c) of the CPA.
      - “Fair and reasonable amount…for the work concerned”;
      - s 76(1) Legal Profession Uniform Law Application Act 2014 (NSW).
      - Normally considerably less than expenses actually incurred.
      - Also referred to as ‘standard party and party’ costs.
    - 1. Indemnity basis:
      - Also ordered pursuant to s 98(1)(c) of the CPA.
      - More generous than ordinary basis.
      - Paying party must prove costs are unreasonable and typically courts allow all costs, save those unreasonably incurred or of an unreasonable amount.
The primary rule in relation to costs
- Usually, costs follow the event:
  - Baulderstone Hornibrook v Gordian Runoff [2006] NSWSC 583.
    - Other things being equal, the loser has to pay the winner’s costs (the “loser pays” principle). See r 42.1 of the UCPR.
    - However, courts have broad discretion to order costs: s 98 CPA
    - See also Pt 42 of the UCPR.
    - In exceptional circumstances courts will depart from this principle.
- Some general principles when departing from the primary rule
  - The most common circumstance in which the presumption that the loser pays may be displaced is evidence of disentitling conduct on the part of the successful party.
  - Justice McHugh in the case of Oshlack v Richmond River Council (1998) 193 CLR 72 provided a list of non-exhaustive circumstances which might warrant displacing the loser pays principle.
  - The discretion to award costs against a successful party must be exercised judicially.
  - The onus lies on the losing party to establish a basis for any departure from the usual rule.
- The role of costs in managing litigation
  - Costs help manage litigation in a number of ways:
    - 1. They act as a disincentive to litigation in the first place.
      - Also, costs orders are very difficult to appeal;
    - 1. The general idea of costs following the event plays a regulative role.
      - Ideally, it should ensure that only meritorious proceedings are brought in the first place;
    - 1. Costs encourage early settlement; and
    - 1. They are factor relevant to case management decisions under various sections of the CPA, including ss 56(5), 57(1)(d), 60, 61(3)(f), 62(6).
- Costs as a spur to settlement
  - Settlements ‘encouraged’ by:
    - penalising those who don’t settle when they should; and
    - supporting institutions designed to ease negotiations.
  - Mechanisms of settlement:
    - Calderbank letters; and
    - Offers of compromise under Pt 42 Div 3 of the UCPR.
- Calderbank letters
  - Calderbank v Calderbank [1976] Fam 93 (UK case).
  - ‘Without prejudice’ letter offering to settle for a sum.
  - They promote settlement of disputes:
    - Messiter v Hutchinson (1987) 10 NSWLR 525.
  - Indemnity costs may be awarded where “unreasonable” refusal of settlement offer (no prima facie presumption in favour of indemnity costs).
  - Was there a genuine offer of compromise? & Was it unreasonable for the offeree not to accept it?: Miwa Pty Ltd v Siantan Properties Pty Ltd (No.2) [2011] NSWCA 344.
- Offers of compromise
  - An offer to settle is made by A to B.
    - B does not accept offer and litigation continues. If B subsequently receives a less favourable judgment than what they would have received under A’s offer, B is usually penalised by adverse costs awards.
  - Conceptually related to Calderbank offers except explicitly provided for by the UCPR.
  - Regulated by UCPR Part 20 Div 4 and Part 42.
- Offers of compromise – cost implications
  - Either party accepts an offer with no provision for costs: party who judgment is in favour of entitled to costs on an ordinary basis to date of acceptance of offer:
    - UCPR r 42.13A.
  - D does not accept and P does better: P normally awarded indemnity costs from day of offer:
    - r 42.14.
  - P does not accept D’s offer and P does not do better: P entitled to their costs on the normal basis up to the offer and then has to pay D’s costs on an indemnity basis for period after the offer:
    - UCPR r 42.15.
  - NB – court can always ‘otherwise order’ if it sees fit:
    - rr 42.14 & 42.15
  - Table of Costs Scenarios
- Offers of compromise – some technical matters
  - The final date for most offers is up to delivery of judgment (or summing up to a jury if there is a jury trial).
  - Where an offer is made two months or more before the date set down for commencement of the trial, the offer must be open for 28 days:
    - r 20.26(5).
  - During the time it is open it can be accepted:
    - r 20.27.
  - Offers of compromise are ‘without prejudice’:
    - r 20.26(9).
  - If a party accepts an offer of compromise and then reneges, then the other party is entitled to judgment or dismissal of the plaintiff’s case, striking out a defendants defence, etc:
    - r 20.29.
  - An offer of compromise can be accepted by serving written notice on the offeror any time within the period of acceptance. Once accepted, any party to the offer can enter judgment in accordance with the offer.
- Leach v The Nominal Defendant [2014] NSWCA 391
  - Case revolved appellant involved in a motor accident – driver of other car uninsured and unidentified.
  - Driver shot at and seriously injured appellant.
  - Appellant brings action against nominal defendant, State Insurance Regulatory Authority (SIRA).
  - SIRA makes an offer focused solely on costs – Court accepts this is a genuine compromise.
  - If there is a genuine compromise, onus shifts to offeree to show why indemnity costs shouldn’t be levied.
  - Sometimes seen as offeree demonstrating “exceptional circumstances.”
- The legislative framework for costs
  - The key provisions surrounding costs are s 98 of the CPA and Pt 42 of the UCPR.
  - s 98 CPA:
    - ‘(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.’
- The UCPR and costs
  - r 42.1: the general rule is that costs follow the event – but also states: ‘unless it appears to the court that some other order should be made as to the whole or any part of the costs.’
  - r 42.2: general rule as to assessment of costs:
    - ‘Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.’
  - r 42.4: Court may give order to fix maximum costs that may be recovered.
  - r 42.5: gives a sense of how indemnity costs are levied.
  - r 42.6: amendment of pleading etc without leave - must pay costs of amendment.
  - r 42.7: the costs for interlocutory applications are dealt with in same way as general costs.
  - rr 42.8 & 42.9: dispute of fact / document subsequently proved or admitted (i.e. notice to admit/produce).
    - The requesting party has associated costs assessed on an indemnity basis.
  - r 42.10: if a party fails to comply with a requirement of the rules, or of any judgment or order of the court, the court may order the party to pay such of the other parties’ costs as are occasioned by the failure.
  - r 42.19: where plaintiff discontinues proceedings, they must pay defendant’s costs up until date of discontinuance.
  - r 42.20(1): if the court makes an order for the dismissal of proceedings, the plaintiff must pay the defendant’s costs to the extent to which they have been dismissed.
  - r 42.20(2): if the court makes an order striking out a defence, the defendant must pay the plaintiff’s costs in relation to those matters in respect of which the defence has been struck out.
  - r 42.32: provides for Smyth orders.
- Bullock and Sanderson orders
  - Bullock order: the unsuccessful defendants required to pay the plaintiff by way of reimbursement any costs the plaintiff has paid to the successful defendant(s).
    - See Bullock v London & General Omnibus Co [1907] 1 KB 264.
  - Sanderson order: the unsuccessful defendant(s) pay the costs of the successful defendant(s), leaving the plaintiff out of the process entirely.
    - See Sanderson v Blyth Theatre Co [1903] 2 KB 533.
  - See: Gould v Vaggelas (1984) 157 CLR 215.
- Costs assessment process
  - Costs order does not provide specific amount payable.
  - Parties will try to agree between themselves on the amount of costs payable.
  - If parties are unable to agree, then winner will arrange for the costs to be quantified or ‘assessed’.
  - Two stages:
    - winning party prepares a ‘bill of costs’;
    - costs will be assessed at an informal hearing before an assessor.
- Costs orders against legal practitioners
  - s 99 of the CPA provides for costs orders against legal practitioners where 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.
  - Schedule 2 of Legal Profession Uniform Law Application Act 2014:
    - provides for costs against practitioners/firms where a claim or defence in a case for damages has no reasonable prospects of success.
    - See Treadwell v Hickey [2010] NSWSC 1119.
  - Supreme Court Practice Note 5 – General Division
  - Cachia v Hanes (1994) 179 CLR 403 – costs for the litigant in person.
  - Bell Lawyers v Pentelow [2019] HCA 29 - No exception to Cachia for self-represented legal practitioners (cf the earlier ‘Chorley exception’)
- Firth v Latham & Ors [2007] NSWCA 40
  - Case revolved around what constitutes ‘reasonable prospects of success.’
  - A local Council was added as a defendant in a case involving an injury caused as a result of a motor vehicle accident.
  - The Council had a total defence under s 43A of the Civil Liability Act 2002 (NSW).
  - The case against the Council was thus commenced without any reasonable prospects of success.
- Once accepted
  - Deed of settlement def
    - a legal document that outlines an agreement between disputing parties to settle a dispute.
  - Consent judgement def
    - A consent judgement is an agreement or settlement that resolves a dispute between two parties without admission of guilt or liability

Week 10: Strike out, Summary Disposal, and Vexatious Litigants

Strike out, Summary Disposal, and Vexatious Litigants
- What is Strike out?
  - Strike out def refers to a situation where a Court cuts down, or “strikes out”, a party’s pleadings, either in whole or in part.
  - The UCPR tightly controls the circumstances in which Strike out can occur – r. 14.28.
  - A concept with a long history in the common law.
- The role of pleadings
  - Recall the fundamental role of pleadings: to state with sufficient clarity the case that must be met and to define the issues for decision;
    - Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, at 286.
    - It is a fundamental rule that the plaintiff must plead the facts that are material to their cause of action.
  - See also Markisic v Department of Community Services of New South Wales (No 2) [2006] NSWCA 321.
- Strike out – r 14.28
  - r 14.28 is the key rule for Strike out. It provides:
    - ‘(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
      - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
      - (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
      - (c) is otherwise an abuse of the process of the court.
    - (2) The court may receive evidence on the hearing of an application for an order under subrule (1).’
- r 14.28(1)(a) – discloses no reasonable cause of action/defence
  - Similar in some ways to the old demurrer procedure i.e. no evidence is led, it is the wording of the pleading itself.
  - “A pleading or part thereof will be struck out if the court is satisfied that even if all the allegations of fact set out in the pleading are proved, those facts would not establish the essential ingredients of a cause of action or constitute a defence”
- r 14.28(1)(a) – discloses no reasonable cause of action/defence cont.
  - A hypothetical: a statement of claim alleges a cause of action in negligence and a cause of action in trespass.
  - The facts in the statement all attest to how the plaintiff saw their neighbour routinely jump their fence and come onto their property.
  - One part of the pleading (trespass) can clearly be made out.
  - However, there is nothing in the facts that could possibly disclose an action in negligence – that part could be struck-out under r 14.28(1)(a).
- r 14.28(1)(b) – tends to cause prejudice, embarrassment or delay
  - “A pleading or part thereof may tend to prejudice, embarrass or delay the fair trial of the proceedings if it contains allegations which are vague or imprecise such that the other party cannot plead to such allegations specifically, or if it contains allegations that are irrelevant, unnecessary or scandalous”:
  - Priest v New South Wales [2006] NSWSC 12
- r 14.28(1)(c) – abuse of process
  - Courts have an inherent jurisdiction to prevent the abuse of their processes.
  - In Hunter v Chief Constable of West Midland Police [1982] AC 529, at 536, this power was described as preventing a misuse of the court’s procedure in a way “which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”
  - Abuse of the process of the court ‘is insusceptible of a formulation comprising closed categories’ -
    - Batistatos v Road and Traffic Authority NSW (2006) 226 CLR 256.
  - Examples of abuse of process include:
    - The institution of proceedings for an improper purpose –
      - Williams v Spautz (1992) 174 CLR 509;
    - Bringing concurrent proceedings in different courts relating to the same subject-matter –
      - Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192;
    - Attempting to re-litigate issues where the principles of res judicata or issue estoppel are applicable –
      - Stokes (by a tutor) v McCourt [2013] NSWSC 1014
    - Attempting to litigate issues which could and should have been litigated in previous proceedings –
      - Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;
    - Claims that cannot be justly determined e.g. because of delay –
      - Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256;
    - Modest claims which will involve disproportionate costs and time to determine;
      - Forum non conveniens i.e. there is a more appropriate forum for the proceedings to be heard in; and
    - Destruction of evidence –
      - Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523
- Court wary of striking-out pleadings
  - The ordinary presumption of the legal system is that people are entitled to their ‘day in Court’.
  - That being the case, the power to strike out pleadings is one the Court will only use sparingly and in clear cases.
- Summary disposal
  - Summary disposal is a label used to describe applications to the court that can result in proceedings being concluded before a trial.’:
    - Kumar, Legg, Vickovich & Metzger, Civil Procedure in NSW (4th ed, Thomson Reuters, 2020), 930.
  - Pt 13 of the UCPR provides for (amongst other things):
    - Summary judgment – r 13.1;
    - Frivolous and vexatious proceedings (summary dismissal) – r 13.4;
    - Non-appearance by the plaintiff – r 13.6
- Difference between summary disposal and Strike out
  - “Unlike UCPR Pt 13, applications under this rule (here it is talking about r 14.28) are directed to the form of the pleading rather than to the merits, or lack thereof, of the respective parties, and if the application is successful the order usually made is not that the proceedings be struck out or dismissed, but that the pleading or particular parts thereof be struck out, usually with leave given to file an amended document (replead), in which case the proceedings remain on foot.
  - If on the other hand, the evidence establishes that, no matter how the plaintiff pleads his or her case, he or she has no arguable cause of action and cannot possibly succeed, the proceedings should be dismissed pursuant to r 13.4”:
- Summary disposal – summary judgment, r 13.1
  - r 13.1 provides that:
    - “(1) If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:
      - (a) there is evidence of the facts on which the claim or part of the claim is based, and
      - (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
    - the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
- Summary judgment, r 13.1 – some key points
  - Some important features of summary judgments include:
    - It is a tool for the plaintiff.
    - The plaintiff has to apply for it (by motion under Pt 18 of the UCPR, supported by an affidavit pursuant to Pt 35).
    - Whether the Court will grant this remedy depends upon whether the plaintiff can point to the facts which support their claim and can establish that, in their belief or the belief of a responsible person, the defendant has no defence to the claim, or their only defence is as to the damages.
      - See Cosmos E-C Comerce v Bidwell [2005] NSWCA 81.
    - The Court will exercise its discretion to make a summary judgment very cautiously e.g. no triable issues.
- Summary dismissal, r 13.4
  - Whereas summary judgment is for the plaintiff, summary dismissal provides a corresponding right for the defendant.
  - Relevant rule is r 13.4:
    - ‘(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
      - (a) the proceedings are frivolous or vexatious, or
      - (b) no reasonable cause of action is disclosed, or
      - (c) the proceedings are an abuse of the process of the court,
  - the court may order that the proceedings be dismissed generally or in relation to that claim.’
- r 13.4(1)(a) – frivolous or vexatious proceedings
  - Although related, “frivolous” and “vexatious” are conceptually distinct.
  - “Material is frivolous where it is without substance, or groundless or fanciful, and it is vexatious where it lacks bona fides and is hopeless or oppressive and tends to cause the opposite side unnecessary anxiety, trouble and expense”
    - – Bullen and Leake and Jacob’s Precedents of Pleading (12 th ed, Sweet & Maxwell: 1975), 145.
- Summary dismissal - procedure
  - Ordinarily summary disposal will be instigated by an application from the defendant i.e. by way of motion (Pt 18 UCPR) supported by affidavit (Pt 35).
  - HOWEVER, remember the general presumption: “
    - “Where the court is asked to reject the plaintiff’s case, either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases…fatal defects in the plaintiff’s case must be very clear before the court will intervene in this fashion”:
    - Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, 944.
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
  - Key case on summary dismissal/Strike out.
  - Case involved the plaintiff alleging patent infringement against the defendants related to the construction of rail carriage bearings.
    - The defendants in turn argued this was permitted by ss 125 and 132 of the Patents Act 1952-1960 (Cth).
    - Barwick CJ agreed, striking out the plaintiff’s statement of claim and dismissing the proceedings.
  - Barwick CJ: summary dismissal is a drastic step to be taken with great caution. Over the years, that caution has been expressed as only dismissing cases that are:
    - So obviously untenable that it couldn’t succeed;
    - Manifestly groundless;
    - So manifestly faulty that it does not admit of argument or cannot possibly succeed;
    - Under no possibility could there be a good cause of action;
    - Be manifest that to allow them would involve useless expense.
    - Similar standard for summary judgment:
      - Cosmos E-C Comerce v Bidwell [2005] NSWCA 81.
- r 13.6 – dismissal where plaintiff fails to appear
  - r 13.6 provides for the dismissal of proceedings where the plaintiff fails to appear for a hearing that was adjourned because of their absence.
  - r 13.6(1): if plaintiff doesn’t turn up for a hearing, then the Court can adjourn to another date.
    - Not less than five days before that new date, a notice of the adjournment will be served on the plaintiff advising them that if they don’t turn up for this new date, then their proceedings may be dismissed.
  - r 13.6(2): court can dismiss plaintiff’s proceedings if given notice of adjourned hearings.
- Default judgments
  - What is a default judgment?
    - ‘A default judgement applies to proceedings commenced by statement of claim…and is a judgment entered by virtue of court rules rather than one ordered by the court.
    - A default judgement can be entered if the defendant is in “default”…’: Kumar, Legg, Vickovich & Metzger, Civil Procedure in NSW (4 th ed, Thomson Reuters, 2020), 931.
  - Arises in situations of procedural shortcoming defined by r 16.2 e.g. failing to file a defence in time, failing to file any affidavit verifying a defence, having a defence struck out.
    - r 16.3 is the master rule for default judgments.
    - r 16.3(1): plaintiff has to apply for a default judgment.
    - r 16.3(2): plaintiff must provide two affidavits in their application:
      - Affidavit of service; and
      - Affidavit in support.
    - r 16.3(1A):
      - application for default judgment does not ordinarily need to be served on defendant and can be dealt with in the absence of the parties.
    - NB – the affidavit in support must attest to different things depending upon whether the default judgment is for debt or liquidated damages (r 16.6) or unliquidated damages (r 16.7).
- Overturning a default judgment
  - r 36.16:
    - ‘(2) The court may set aside or vary a judgment or order after it has bee entered if:
      - (a) it is a default judgment (other than a default judgment given in open court), or
      - (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order…’
  - Defendant would seek overturn by way of motion supported by an affidavit.
  - The affidavit would lay out the grounds on which the overturn was sought and that there is a defence to the claim that has merit.
    - The fundamental (but not the only) principles guiding a court asked to exercise the unfettered discretion UCPR r 36.16(2)(a) confers, are whether the applicant has a bona fide ground of defence, an adequate explanation for failure to defend and the length of any delay…In the final analysis, it is necessary to consider whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits…’:
      - Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, at [43].
    - ‘I would only add [to Dunwoodie] that, in my view, in determining whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits, it is appropriate for the Court to consider the relative weight of each of the individual considerations of the strength of any defence, the adequacy of the explanation for the failure to defend proceedings and the length of any delay.
    - So that, for example, although the Court does not embark upon a hearing of the full merits of the case, the existence of what would appear to be a strong defence would warrant a more indulgent approach regarding the adequacy of the explanation for the failure to defend.’
      - Cronau v Vavakis (No 3) [2018] NSWSC 1973, at [5].
- Dismissal for want of due despatch
  - r 12.7:
    - ‘(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.’
  - Examples of things which reflect lack of due despatch can include changing solicitors frequently, seeking many adjournments, not abiding by the correct procedural steps etc -
    - Building Insurers’ Guarantee Corp. v. Daniel Touma & Ors. [2010] NSWSC 4.
  - “The central consideration in a want of prosecution case is whether, at the time when the action is likely to be tried, it will be capable of being tried adequately and fairly”:
    - McKenna v McKenna [1984] VR 665, 666.
  - Party seeking dismissal for want of due despatch would apply by way of motion supported by affidavit.
  - NB - r 12.8 allows the Supreme Court and Land and Environment Court to dismiss proceedings of their own accord if it appears from the court’s records that, for over 5 months, no party to the proceedings has taken any step in the proceedings.
- Vexatious litigants
  - Vexatious litigants form a very small sub-class of litigants who persistently begin legal actions but don’t have sufficient grounds for doing so.
  - An example is John Wilson, prominent in the Australian sovereign citizen movement.
  - For the purposes of s 6 of the Vexatious Proceedings Act 2008 (NSW), vexatious proceedings include:
    - ‘(a) proceedings that are an abuse of the process of a court or tribunal, and
    - (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
    - (c) proceedings instituted or pursued without reasonable ground, and
    - (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.’
  - Relevant parts of s 8 of Vexatious Proceedings Act 2008 (NSW):
    - s 8(1): an order can apply to someone who has “frequently” instituted or conducted vexatious proceedings in Australia, or someone working in concert with such a person.
    - s 8(3): the person subject to the order has a right to be heard before that order is made.
    - s 8(4): an order can be made on the Court’s own motion, or it can be made on the instigation of the Attorney-General, the Solicitor General, the registrar of the Court, a party against or in relation to whom the litigant has commenced vexatious proceedings, or anyone else possessing a sufficient interest.
    - s 8(7): an order can stay any of their current proceedings, or indeed prohibit them from instituting proceedings in NSW at all.
  - Register of vexatious litigants kept on Supreme Court website:
    - http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_practiceprocedure/SCO2_vexatiousproceedings.aspx#Istherearegisterofvexatiouslitigantsandtheordersthatapplytothem
  - Generally, those subject to an order are barred from instituting proceedings in NSW unless they seek leave of the Court pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW).
  - Application for leave made by summons supported by an affidavit (s 14(3)), whilst the Court has the discretion to reject or grant the leave (s 14(5)).
- Attorney General of NSW v Rahman [2014] NSWSC 42
  - Case centred on Mohammad Rahman, who brought 50 cases in 10 years.
    - Cases centre on a wide variety of matters e.g. English-language test, speeding tickets, social security payments, employment decisions and a suspension from studies as a law student.
    - The 2014 case saw the NSW Attorney-General apply to the Supreme Court to have Mr Rahman designated as a vexatious litigant.
  - Justice Adams drew upon Justice Davies in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 in identifying some key considerations:
    - ‘(a) the test of “frequently” is a less demanding test than was required under s 84 Supreme Court Act 1970;
    - (b) the term “frequently” is a relative term and must be looked at in the context of the litigation being considered;
    - (c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
  - Key considerations continued:
    - ‘(d) regard may be had to applications made by the person in proceedings commenced against that person;
    - (e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
    - (f) regard may be had to proceedings in any Australian court or tribunal;
    - (g) regard may be had to the findings and result in the proceedings under consideration.’
  - Remember: “the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right.
    - It is, therefore, not lightly to be made.

Week 11: Enforcing Judgments

Enforcing Judgments
- What is judgment enforcement?
  - ‘Enforcement is the process by which compliance with a determination or order of a court is compelled’: Kumar, Legg, Vickovich & Metzger, Civil Procedure in NSW (4 th ed, Thomson Reuters, 2020), 987.
  - Enforcement is pursued by a judgment creditor against a judgment debtor:
    - Judgment debtor: owes money pursuant to court order.
    - Judgment creditor: is owed money pursuant to court order.
- Different means of enforcement under the UCPR
  - Uniform Civil Procedure Rules 2005 (NSW) Part 39
    - Division 1
      - Enforcement of writs of execution generally
    - Division 2
      - Enforcement of writs against land
    - Division 3
      - Enforcement of writs against goods etc
    - Division 4
      - Garnishee orders
    - Division 5
      - Charging orders
    - Division 6
      - General
- Why should judgment debtors pay in a timely fashion?
  - Judgment debtors might be tempted to put off paying damages so that inflation whittles away their value.
  - s 101 of the Civil Procedure Act 2005 (NSW):
    - provides that judgment debts incur interest until paid.
    - Interest payable at the ‘prescribed rate’.
  - No interest payable if full amount paid within 28 days of judgment.
- Writs of execution
  - Writ of execution: court orders addressed to the Sheriff authorising him/her to seize and sell goods, land, money and other assets of a judgment debtor.
  - Modern writs are descendants of the ancient writ of fieri facia (or fi fa).
  - CPA s 102 of the CPA provides defines a writ of execution as:
    - a writ of delivery (s 105);
    - a writ for the levy of property (s 106); or
    - a writ of possession (s 104)
- How do you apply for a writ of execution?
  - s 103 CPA provides that accessing these writs is governed by the UCPR.
  - UCPR rr. 39.1, 39.2 & 39.3 – application made by way of notice of motion + supporting affidavit.
- Classes of judgment
  - There are four broad classes of judgment:
    - Those entitling the successful party to possession of land – s 104 CPA;
    - Those requiring the delivery of goods – s 105 CPA;
    - Those requiring the payment of money – s 106 CPA; and
    - Those involving mandatory or injunctive orders.
- When is a judgment enforceable?
  - s 133 CPA: ‘A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.’
  - r 36.11(2): ‘Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system.’
  - s 17 of the Limitation Act 1969 (NSW): judgment is enforceable for 12 years from when it is entered in the Court records.
- Orders for examination
  - Orders for examination may sometimes be necessary to ascertain the financial circumstances of the judgment debtor.
  - s 108 CPA:
    - the court can order the judgment debtor to attend court to be orally examined and/or to produce documents as to their financial circumstances. Debtor must answer “material questions.”
  - Relevant UCPR rules: rr 38.1 & 38.2
- Judgment for the payment of money
  - s 106(1) CPA: judgment for the payment of money can be enforced through three main instruments:
    - A writ for the levy of property,
    - A garnishee order,
    - A charging order (in the case of a judgment of the Supreme Court or the District Court).
- Writ for the levy of property
  - s 106(2) CPA: a writ for the levy of property is sufficient authority for the NSW Sheriff to:
    - To seize or sell goods which the judgment debtor possessed or is entitled to;
    - To seize money belonging to the judgment debtor;
    - To seize and realise cheques, bills of exchange, promissory notes, bonds, and other securities for money belonging to the debtor;
    - To possess and sell land which the debtor owns or is entitled to;
    - To take and sell choses in action or equitable interests in goods or land held by the debtor.
  - s 106(3): provides limits on what can be taken by Sheriff.
- Writ for the levy of property cont.
  - r 39.6(2): regulates the priority in which goods are sold at auction:
    - In whatever order the Sheriff deems necessary for the speedy satisfaction of the judgement without undue expense;
    - Subject to this, in whatever order the debtor directs;
  - r 39.6(3): land must not be sold before other property unless the judgment debtor requests it.
  - NB – the sheriff requires a valid writ, otherwise they are technically committing trespass.
- Instalment orders
  - s 107(1)(b): the court can make an order for the ‘payment of the judgment debt by instalments, payable in such amounts and at such times as are specified in the order.’
  - Two main situations in which an instalment order can be made:
    - 1. As a result of an agreement between the judgment creditor and debtor: r 37.1A;
    - 1. Judgment debtor can apply for one: r 37.2.
      - Requires an affidavit attesting to their financial circumstances.
- Enforcement against land
  - Land has a special status in the common law. Enforcement against land is quite difficult.
  - r 39.21(1)(2): a creditor who wants to enforce against land must file an affidavit verifying the registration of a writ for the levy of property and showing receipt of advice from the Sheriff that they cannot obtain satisfaction of the writ by proceeding further against the goods of the judgment debtor.
    - A notice advising the judgment debtor of this move must be made.
  - rr 39.22 – 39.24: specify steps which must be taken to enforce against land
- Orders against third parties
  - Two main orders against third parties:
  - Garnishee order
    - Can target parties that owe the judgment debtor money (e.g. banks) or the debtor’s employer (rr 39.36 & 39.37).
    - Judgment creditor applies by way of notice of motion supported by affidavit (rr 39.34 & 39.35).
  - Charging order
    - Order made against the beneficial interest debtor has in any securities.
    - rr 39.44 & 39.45.
- Other enforcement tools
  - Receivers (r 40.2)
    - Usually only appointed as a last resort in relation to unusual property interests or circumstances.
    - r 26.7 outlines powers of receivers
  - Sequestration (rr 40.2 & 40.3)
    - Old remedy based on physically excluding the contemnor from their property.
    - Very rare.
  - Contempt (pt 55 of the Supreme Court Rules).
    - Judgment creditor wanting to pursue contempt applies by notice of motion supported by affidavit.
    - Contempt is punishable by fines and imprisonment in the case of individuals; fines and sequestration in the case of corporations

Week 12: Appeals

Appeals
- Appeals
  - What is an appeal def? A formal process by which an unsuccessful party attempts to have a judgment or order of the court set aside.
  - In NSW the key appellate court is the NSW Court of Appeal.
  - The Supreme Court Act 1970 (NSW) is the key piece of legislation regarding the appeals process.
  - NB – NSWCA bound by decisions of the High Court. In turn binds other NSW courts with its decisions
- Types of appeal
  - There are two predominant types of appeal:
    - 1. Appeals as of right – s 101(1) of the Supreme Court Act 1970 (NSW)
      - e.g. appeal lies of right from a decision of a Division of the Supreme Court
      - No right to appeal exists at common law:
        
        see Lacey v Attorney-General of Queensland (2011) 242 CLR 573
    - 1. Appeals only with leave – s 101(2) of the SCA. Examples include:
      - Interlocutory judgments and orders:
        
        SCA s 101(2)(e).
      - A judgment or order on an application for summary judgment:
        
        SCA s 101(2)(l).
      - A judgment that a company be wound up:
        
        SCA s 101(2)(n).
      - Judgments restraining or refusing to restrain winding up proceedings re companies:
        
        SCA s 101(2)(o) & (p).
      - A judgment or order in proceedings of the Court with respect to the taxation or assessment of costs:
        
        SCA s 101(2)(q); or
      - Final judgments that involve less than $100,000:
        
        SCA s 101(2)(r).
    - Strict appeal (an appeal stricto sensu)
      - When the court is required to confine its consideration to whether the judgment appealed from was correct when it was given.
      - This type of appeal considers the law and facts as at the time when the judgment was given.
      - Appeals to the High Court are in the nature of strict appeals.
    - De novo appeal
      - This is effectively a retrial where the evidence is given again and the appellate court forms its own view of the facts and law.
    - Rehearing
      - This type of appeal determines the position of the parties as at the date of the rehearing on the record of the evidence before the trial judge.
- The nature of an appeal
  - s 75A of the SCA tells us a lot about the nature of an appeal,particularly sub-sections 5-8.
    - s 75A(5) – an appeal is by way of a rehearing.
    - s 75A(6) – appellate court has all the powers and duties of the original court.
    - s 75A(7) – the court may receive further evidence.
    - s 75A(8) – despite ss 7, where the appeal is from a judgment after a trial or hearing on the merits, the court won’t receive further evidence except on special grounds.
  - See Fox v Percy (2003) 214 CLR 118 at [27];
  - House v R (1936) 55 CLR 499 at 504–5.
- Appeal process timeframes
  - Notice of intention to seek leave to appeal (can’t be filed if you have already filed a Summons for Leave)
    - 28 days after judgment order
      - r 51.8
  - Summons for leave
    - 28 days after judgment order, or
      - r 51.10
    - 3 months after judgment order (where notice of intention to appeal has been given)
      - r 51.10
  - Cross-summons, seeking Leave to Cross-Appeal
    - 28 days after summons for leave or notice of appeal
      - r 51.11
  - Response
    - 28 days after filing of White Folder
      - r 51.13
  - Notice of intention
    - 28 days after judgment order, or
      - r 51.8
    - 14 days after receiving notice of intention to appeal
      - r 51.9A
  - Notice of appeal
    - 7 days after leave to appeal, or
      - r 51.16
    - 28 days after judgment order, or
      - r 51.16
    - 3 months after judgment order (where notice of intention to appeal has been given), or
      - Rr 51.9, 51.16
    - 3 months and 28 days after the judgment order (where another party gave notice of intention but did not file a notice of appeal
      - r 51.9A
  - Notice of cross-appeal
    - 7 days after leave, or
      - r 51.17
    - 14 days after the summons for leave or notice of appeal
      - R51.17
  - Notices of contention
    - 28 days after notice of appeal
      - r 51.40
  - Objections to competency
    - 28 days after notice of appeal
      - r 51.41
- Notice of appeal
  - Key document in appeal process.
  - r 51.18(1): notice of appeal must state:
    - (a) the statutory provision under which the appeal is brought, and
    - (b) whether it is filed pursuant to leave, the date leave was given, and
    - (c) whether the appellant has filed and served a notice of intention to appeal, and the date it was served, and
    - (d) whether the appeal is from the whole or part only, and what part, of the decision below, and
    - (e) briefly, but specifically, grounds relied on in support of appeal, and
    - (f) what judgment, order, verdict or determination the appellant seeks, and
    - (g) that, before any attendance before the Court by or on behalf of the respondent, a notice of appearance must be filed if required: UCPR r 51.18(1)
  - Grounds of appeal:
    - Not enough to allege that the primary judge erred in law or fact
    - The grounds must identify the respects in which the errors occurred
- Appeal books
  - Leave appllcatlons
    - White Folder
      - Contents
        
        Summons for leave, judgment, summary of argument, draft notice of appeal
        
        [Note UCPR r 51.39 CA has power to order that the White Folder stand as an Appeal Book, written submissions or both]
      - Time
        
        with summons or cross-summons for leave
      - Provision
        
        r 51.12
    - Blue Book
      - Contents
        
        Exhibits (must be two-sided)
      - Time
        
        10 weeks before appeal hearing
      - Provisions
        
        rr 51.25, 51.29, 51.32
    - Orange Book
      - Contents
        
        submissions and chronology (must be ONE-sided!)
      - Time
        
        4 weeks before appeal hearing
      - Provision
        
        rr 51.25, 51.30, 51.32, 51.33
    - [Combined Book]
      - Contents
        
        Used where transcript and exhibits are less than 300 pages
      - Provision
        
        r 51.26
  - Appeals
    - Red Book
      - Contents
        
        pleadings and judgment
      - Time
        
        within 6 weeks of Notice of Appeal
      - Provisions
        
        rr 51.25, 51.27, 51.32
    - Black Book
      - Contents
        
        Transcript; written submissions used below (if necessary for the appeal)
        
        Black book pages MUST be two-sided
      - Time
        
        10 weeks before appeal hearing
      - Provisions
        
        rr 51.25, 51.28, 51.32
    - Appellant’s submissions
      - Time
        
        6 weeks after notice of appeal
      - Content
        
        3 copies; 20 pages or less— numbered paragraphs— refer to, not extract, authorities, findings and evidence.
      - Provision
        
        rr 51.34, 51.36, 51.37, 51.39
    - Respondent’s submissions
      - Time
        
        10 weeks after notice of appeal
      - Content
        
        Same as above
      - Provision
        
        rr 51.34, 51.36, 51.37, 51.39
    - Final Referenced Submissions
      - Time
        
        4 weeks before hearing(with Orange Book)
      - Provision
        
        rr 51.30(1 )(b), 51.32(3)
  - Chronologies
    - Appellant
      - Time
        
        10 weeks before hearing
      - Content
        
        Material dates (format complying with PN SC CA lat [341, [351)
      - Provision
        
        Rr 51.34, 51.35
    - Respondant
      - Time
        
        8 weeks before hearing
      - Content
        
        Material dates (format complying with Practice Note SC CA lat [341, [351)
      - Provision
        
        R 51.37
  - List of Authorities
    - Time
      - 24 hours before hearing
    - Content
      - 4 copies of list — Cth and NSW legislation — other legislation (with copies) — cases to be read
    - Provision
      - PN SC CA lat[46H48]
- The test in New South Wales to distinguish between final orders and those which are interlocutory looks at the nature of the application and its strict legal effect.
  - Specifically, it looks at whether the order finally disposes of the rights of the parties:
    - Hall v Nominal Defendant (1966) 117 CLR 423
- Discretionary decisions by a primary judge are approached with constraint by an appeals court
- The relevant test is that laid down in House v The King (1936) 55 CLR 499
  - Any attack on decisions of that character must fail unless it can be demonstrated that the decision- maker:
    - (a) made an error of legal principle,
    - (b) made a material error of fact,
    - (c) took into account some irrelevant matter,
    - (d) failed to take into account, or gave insufficient weight to, some relevant matter, or
    - (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

Law School Notes Repository

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Civil Practice Notes

Civil Practice Cheat Sheet

Week 2 Ch 1: Introduction and Guiding Principles, Case Management and Purpose

Dame Hazel Genn, “Introduction: What Is Civil Justice for?” in Hazel Genn (ed), Judging Civil Justice, 2008 Hamlyn Lecture

Week 2 Ch 2: Case Management in New South Wales

Week 3: Access to Justice, Open Justice and Client Care

Week 4: Alternative Dispute Resolution (ADR), Jurisdiction, and Limitation Periods

Week 5: Initiating Proceedings, Commencing Litigation, Joining Parties and Causes of Action, and Drafting Pleadings

Statement of claim

Summons

Week 6: Services

Week 7: Evidence in Proceedings

An archetypal affidavit

Week 8: Interlocutory Applications and Injunctions

Pro forma notice of motion

Week 9: Costs and Settlement

Week 10: Strike out, Summary Disposal, and Vexatious Litigants

Week 11: Enforcing Judgments

Week 12: Appeals

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