Civil Procedure Australia

May 26, 2016 | Author: Aie_crawlers | Category: Types, Legal forms
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Civil procedures notes for Australian Jurisdiction....


CIVIL PROCEDURE TOPIC 1: Introduction Procedural law What is procedural law?

Procedural law governs the conduct of court proceedings. That is, ‘the mode of proceedings by which a legal right is enforced, as distinguished from the law which gives or defines the right’ (Poyser v Minors per Lush J). They’re ‘adjectival’ rules, in the sense that they qualify substantive rights.

Purpose: a process for the resolution of disputes, and also to perpetuate the rule of law (ie process must be designed to be ‘fair, economical and expeditious’ – J A Jolowicz).

Chronology: i.


Initiation of proceedings; a.

Decision to litigate (ADR? Settlement?);


Choice of court;


Choice of parties;


Issue proceedings;


Serve documents; and


Defendant files appearance.

Pre trial procedure – definition of issues at stake between the parties; a.

Pleadings exchanged (outline the parties’ arguments);


Gathering/ producing evidence – via Discovery and Interrogatories; and


Interlocutory proceedings (applications and hearings before the Master/ Judge dealing with preliminary matters that need to be decided before trial – eg in Donoghue v Stevenson, they were just considering whether a DOC was owed).







Appeal; and



The Courts

In Victoria: o

Supreme Court; !

Has inherent jurisdiction = power of superior courts to regulate their own processes to prevent an abuse of process.


Per Bongiorno J in Gunns, “The Court has power both under the Rules of the Supreme Court & inherently to ensure that its processes do not become a source of injustice themselves. It may do this by whatever interlocutory order is necessary, from ordering necessary amendments to a pleading to, in an extreme case, terminating the proceeding.”


County Court; and


Magistrates’ Court.

Federal system: o

High Court;


Federal Court;


Family Court; and


Federal Magistrates’ Court. * These courts do not have inherent jurisdiction – they get their mandate from legislation.

Sources of procedural law

Legislation: Supreme Court of Victoria established by Supreme Court Act 1986 (Vic) – sets SCV’s composition, administration and statutory powers.

Delegated legislation: SC Act provides that procedural rules may be made by delegated legislation. The Rules of Court are devised by rules committees and can be altered by judges. Rules of Court in Vic provided in Supreme Court (General Civil Procedure) Rules 2005 (Vic). * Each book is called a “Chapter”, so chapters are called “Orders” – Order 50.3 is pronounced “3rd rule of Order 50”.

Practice notes: The inherent jurisdiction of SC entitles judges to issue practice notes and directions. While not legally binding, courts may ensure they are complied with by exercising their inherent power to make an order against a party, such as a stay on proceedings or an order for costs.


Participants in litigation

Victorian courts: ‘Plaintiff’ and ‘Defendant’;

Federal system: ‘Applicant’ and ‘Respondent’; and

Appeals (state and federal): ‘Appellant’ and ‘Respondent’.

Adversarial system

Under adversarial system, ‘two adversaries generally take charge of the procedural action’ / ‘party control’ (cf. inquisitorial system, where ‘officials perform most of the activities’).

Main attributes of adversarial procedural system (D Maleshin): -

Pre-trial conferences and party-controlled, pre-trial investigations;


Trials designed as ‘concentrated courtroom drama…’;


Passive judges (like an ‘umpire’ – ‘more reactive than proactive’ per ALRC); and


Party-selected and paid experts.

Main attributes of inquisitorial system: -

A lack of distinction between the pre-trial and trial phases;


Active judges;


Judicial proof taking and fact gathering;


Judicial examination of witnesses; and


Court-selected experts.

Criticism of adversarial system: “Thus the power of the judge to find the truth is limited by the parties’ ability and desire to lay all the relevant facts before her or him. That may result in the judge administering the law as distinct from justice” (Justice Ipp).

Bentham considered that an ideal system of procedure would cut across the standard distinctions between ‘adversarial’ and ‘inquisitorial’ systems. He favoured active questioning by the judge and confrontation of parties and witnesses face to face in oral proceedings and regarded cross-examination as the redeeming feature of the English tradition.


Costs = money that a party may recover from opponent in litigation for reimbursement of particular expenses incurred in litigation.

General rule in SC is that loser pays winner’s costs (cf. USA).

Is this position good? "

Discourages parties with weak cases (eg vexatious litigants);


Encourages parties with strong cases – winner does not lose money due to litigation costs;



Can encourage settlement in intermediate cases; and


Can be used to discipline parties – encourages parties to comply with rules and deadlines (otherwise could get a costs penalty).


Can undermine access to justice – discourages people from pursuing good legal rights because they can’t take the risk they might lose and have to pay legal costs; and


Can be used as an offensive mechanism (called SLAPP writs – Strategic Lawsuit Against Public Participation, eg McDonalds’ case1 and Gunns case).

Case management Case management

Case management = court is involved in management of the progress of proceeding from commencement to conclusion. Judges adopt a more active managerial role – this is a shift away from the traditional adversarial model.

As described by the ALRC, the judge is “not simply responding as a passive umpire to processes initiated by litigants and their lawyers but is active in investigating the best way to define the dispute and to present the case … The focus of dispute resolution is no longer solely directed towards the final hearing. Rather, legal proceedings are viewed as a continuous series of meetings, hearings and written communications during which evidence is introduced, witnesses heard and motions made.”

Objectives of case management (ALRC): -

Early resolution of disputes;


Reduction of trial time;


More effective use of judicial resources;


Monitoring of caseloads;


Increasing accessibility to the courts;


Reduction of criticism of the justice system by reason of perceived inefficiency.

How? In general, all cases are controlled by the court registry and are assigned to different judges or judicial officers at different times for different purposes. When an event relating to a case has been dealt with it is returned to the pool of cases to await the next event and to be assigned again, not usually to the same judge or judicial officer. ‘Master list’ method.

List system in the SCV: o


‘Individual list’ model.

McDonalds sued 2 environmental campaigners for defamation. They won, and were awarded £40,000.

However, their legal costs were about £10 million.



Cases are divided into certain areas (eg commercial list, major torts list and others).


Parties can choose if they want to go into one of these lists – it costs extra money.


Why? Judge can ensure parties are following the rules, judge is usually specialised in that area, and judge manages pace of litigation to get to trial quicker.

Crisis – Justice vs. Efficiency

Traditionally, ‘justice on the merits’ approach was taken to override procedural arrangements. Per Lord Millett in Gale v Superdrug Stores (1996, UK),‘It is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more’. However, that “little” can mean a lot.

The combination of high costs and delays deterred aggrieved persons from pursuing claims thus reducing access to justice. The response to this crisis led to the development of case management (above).

Introduction of efficiency.

As Lord Woolf observed in his report on access to justice in the UK in 1990s, “The litigation process is too often seen as a battlefield where no rules apply. In this environment, questions of expense, delay, compromise & fairness may have only low priority. The consequence is that expense is often excessive, disproportionate & unpredictable; & delay is frequently unreasonable.”

Lord Woolf said a system needs: 1.

To be just in the results it delivers;


To be fair in the way it treats litigants;


To offer procedures & costs proportionate to nature of issues involved;


To deal with cases with reasonable speed;


To be understandable to those who use it;


To be responsive to the needs of those who use it;


To provide as much certainty as the nature of the particular case allows, and


To be effective, adequately resourced and organised so as to give effect to 1-7.

Embodies a notion of distributive justice – need to do justice to the parties in the litigation and other litigants awaiting trial.

Lord Woolf’s recommendations are codified in Vic: r 1.14

In exercising any power under these Rules, the Court shall endeavour to ensure that all questions in the proceeding are: - effectively; - completely; - promptly; and - economically; determined.


Inherent tension in trying to balance these considerations.

Victorian  Reforms   The  Civil  Procedure  Act  2010  (Vic)  marks  the  first  stage  of  the  Victorian  Government's  legislative  response  to   the  Civil  Justice  Review  report  published  by  the  Victorian  Law  Reform  Commission  in  May  2008.   Its  objective  is  to  change  the  culture  of  litigation  in  Victoria  by  adopting  less  adversarial  approach.   Introduces  the‘overarching  purpose’  to  facilitate  the  just,  efficient,  timely  and  cost-­‐effective  resolution  of  the   real  issues  in  dispute  between  litigants,  by  requiring  the  courts  to  exercise  their  powers  having  regard  to  a   range  of  objectives,  including  (Part  4.2,  CPA):   • • • •

the  public  interest  in  the  early  settlement  of  disputes;   the  efficient  use  of  judicial  resources;   minimising  delays  in  the  determination  of  disputes;  and   ensuring  that  the  approach  to  a  civil  proceeding  is  proportionate  to  the  complexity  of  the   issues  in  the  proceeding  and  the  amount  in  dispute.  

The  court  must  have  regard  to  the  overarching  purpose  in  exercise  or  interpretation  of  any  of  its  powers:   Section  8(1).   Participants  also  have  overarching  obligations  (ss  17-­‐26  CPA):   • act  honestly   •

only  make  claims  that  have  a  proper  basis  

only  take  steps  to  resolve  or  determine  the  dispute  

cooperate  in  the  conduct  of  the  civil  proceeding  

not  mislead  or  deceive  

use  reasonable  endeavours  to  resolve  the  dispute  

narrow  the  issues  in  dispute  

ensure  costs  are  reasonable  and  proportionate  

minimise  delay  

 disclose  the  existence  of  documents  critical  to  dispute  

Challenging case management decisions •

AON Risk Services v ANU (2009) o

Facts: Some property owned by ANU was destroyed by the 2003 Canberra bushfires. Action was first against insurance company who wouldn’t pay up. They also sued the insurance broker AON. In the 1st week of the 4 week trial, ANU settled with insurance company. In suing the broker, they realised they needed to change their case so they asked judge for permission to amend statement of claim at trial (to a completely different action). They were given leave to amend.


Held: Leave should not have been given.


# Joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ):



It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.


Whether party should get leave to amend depends on the rules, all the circumstances of the case, and number of factors including: -

Reason for, and length of, the delay in applying for amendment, including whether appln made in good faith;


Prejudice other party will suffer if amendment allowed (and whether costs adequately compensate for that);



Point in litigation at which application made; and


Prejudice of other litigants awaiting trial dates or whose trial dates may be affected.

Here, ANU gave no good explanation for why they were changing their strategy; new defence means trial date will be adjourned/vacated so massive delay – it will cost AON a lot of money, and emotional effects of having case hang over their head for so long; middle of trial; and, delay other trial dates.


TOPIC 2: Alternative Dispute Resolution (ADR) Introduction

According to the Charter of Human Rights and Responsibilities Act 2006 (Vic), everyone has a right to have a dispute decided by a ‘competent and impartial court or tribunal after a fair and public hearing’; s 24(1).

Although you have a right to have disputes decided by a court, this doesn’t mean you have to.

Limitations of litigation:


Risk, unpredictability, delay and financial costs;


Stressful (“strain of litigation”, see JL Holdings);




Courts concerned with legal rights rather than an effective solution to the real conflict; and


Parties’ relationships often irrevocably damaged.

ADR may be faster, cheaper, less adversarial and more flexible than litigation, but more structured and regulated than the disputants’ own efforts to resolve the conflict by themselves.

ALRC has suggested that ADR will not be suitable: -

When a definitive or authoritative resolution of the matter is required for precedential value;


When the matter significantly affects persons or organisations who are not parties to ADR processes;


When there is a need for public sanctioning of conduct or where repetitive violations of statutes and regulations need to be dealt with collectively and uniformly;


When a party is not able to negotiate effectively themselves or with the assistance of a lawyer; and


In family law matters, where there is a history of family violence.

Models of ADR

Two ADR processes: 1.

Determinative: 3rd party makes a determination on the dispute, eg arbitration. The outcome of most determinative processes is enforceable through the courts; and


Facilitative: 3rd party helps to manage the process of dispute resolution, eg mediation. The facilitator does not make a decision. Rather, the process facilitates the parties’ efforts to resolve the dispute for themselves.



Characteristics: o



Less formal than litigation.


Rules of evidence relaxed – since it’s a private system, the parties can decide how it should be run.


Arbitrator makes determination (an award).


Outcome binding on the parties – but has no precedential effect.


Outcome is only reviewable on limited grounds.

When would you use? International commercial disputes (enforceability of arbitral awards – accomplished pursuant to an international agreement, flexibility of the procedure, and ability to select experienced arbitrators) and commercial disputes (more efficient, cheaper, more control, private and can select arbitrators with expertise in the subject matter of the dispute).

When would you not use? Complicated legal questions (arbitrator may not even be a lawyer) or if you want rules of evidence to properly apply.

Mediation •

Characteristics: o

Facilitated negotiation.


Mediator a process facilitator.


No set procedure – can be adapted to the dispute/parties.


Mediator will not express opinions/ offer advice to the disputants.


Confidential process.


No resolution without parties’ consent.

When would you use? Control (parties make the decision – ‘self-determination’ aspect).

Power imbalance? o

No decision is imposed on weaker party;


BUT, there is a risk that the weaker party will accept a less satisfactory outcome than would have been decided by a neutral 3rd party;


The mediator’s role does not include guaranteeing a ‘fair’ outcome – the mediator facilitates the parties’ self-determination, and so if one party is willing to accept an ‘unfair’ outcome, mediation may produce ‘unfair’ results;


Mediators can use procedures and strategies to help to reduce these imbalances (eg allowing all parties a proper opportunity to express their views, preventing abuse, threatening or harassing behaviour, suggesting that each party have access to independent legal advice etc).

Court-annexed ADR


A court may order, at any stage of a proceeding, that the proceeding, or part of the proceeding, be referred to ADR (Civil Procedure Act s 66(1)).

Although an order made under s. 66(1) does not require the consent of the parties, consent must be provided if the ADR in question directly or indirectly results in a binding outcome: s. 66(2)

The Courts can make people participate in ADR to facilitate the early resolution of disputes.

Supreme Court:


Court may refer matter to mediation with/ without parties’ consent: r50.07 SCR2.


Master can refer to mediation (by Master): r50.07.1.


Parties have to make a bona fide attempt to settle during mediation, otherwise will be punished with costs.


Arbitration with parties’ consent: r50.083.

County Court: o

Mediation can be ordered with/ without parties’ consent: s 47A County Court Act.


One of the most extensive referral systems in Australia, with over 6000 cases being referred to mediation prior to 2008. According to County Court’s Civil Initiative (O 34A), after the filing of an appearance of the defendant a directions hearing is held where mediation is encouraged and sometimes ordered.


Arbitration with consent: r50.08 CCR.

Magistrates’ Court: o

Mediation with/ without parties’ consent: s108.


Arbitration with consent: ss102-106.


Matter < $10,000 MUST go to arbitration: s102.

Most cases don’t get sent to mediation until after discovery, ie when the parties have all the evidence. Parties thus have to spend time in the Court before engaging in mediation. Trying to implement pre-action protocol – before proceedings are started, parties are to exchange basic documents.

Lawyers and ADR

“Indeed it may be a breach of professional or ethical obligations, perhaps even negligent, for a legal practitioner to fail to fully consider a range of dispute resolution processes with the client” (Laws of Australia, Dispute Resolution).


Rule 50.07(1): At any stage of a proceeding the Court may, with or without the consent of any party, order that

the proceeding or any part of the proceeding be referred to a mediator. 3

Rule 50.08(1): At any stage of a proceeding the Court may, with the consent of all parties, order that the

proceeding or a question be referred to arbitration.



TOPIC 3: Jurisdiction General

Which Court to sue in?

Practical considerations:


Court must have jurisdiction (this Topic);


Higher courts are more expensive (court fees, lawyer fees) and slower (delay); and


If you could have gone to a lower court you may get a cost penalty for not doing so.

Types of jurisdiction: 1.

Subject matter jurisdiction – refers to the nature of the disputes which may be adjudicated upon by the particular court; and


Territorial jurisdiction – refers to the person or bodies over whom the court may exercise jurisdiction.

Subject matter jurisdiction i. Victorian Courts •

Magistrates’ Court: o

Any claim for damages or equitable relief within jurisdictional limit ($100,0004) – s 100 Magistrates’ Court Act 1989;

o •

Excluded: prerogative writs and equivalent admin law proceedings – s 100(2).

Children’s Court: o

Same level as the Magistrates’ Court;


Independent court;


Deals with matters concerning children under 18 (crim) or 17 (fam);


Cases are heard by Magistrates.

County Court: o

# Victoria’s principal trial court;


Original jurisdiction (can start new matter here); !

Since 2007, has unlimited jurisdiction wrt claims for personal injuries and other personal actions. Can also hear claims against municipal councils for loss/injury while using roads, land, buildings etc controlled by council. Other areas where jurisdiction conferred by statute (eg PLA, TLA etc).

o •

Supreme Court: o


Appellate jurisdiction (hears criminal appeals from Magistrates’ Court – civil appeals go to SC). Trial division (original jurisdiction)

Can abandon excess – eg if seeking $103,000, can abandon $3,000 to fall within limit.



Has 3 further divisions: the commercial and equity division, the common law division and the criminal division – these divisions also include specialist lists;


Has unlimited jurisdiction (s 85(1) Constn Act (Vic)), unless a statute expressly says to the contrary;


AND invested jurisdiction: !

Pursuant to s 77 Cth Constn (which enabled Pmt to invest any state court with Federal jurisdiction), s 39 Judiciary Act gives all state SCs the original jurisdiction of the HC – ie Federal jurisdiction except over HC’s exclusive matters and where statute expressly excludes state SCs.


AND cross-vesting legislation: !


State SCs can exercise jurisdiction of other State SCs (see below).

Appeal division (Court of Appeal) !

Established under the Constitution (Court of Appeal) Act 1994;


Made up of the SCV Chief Justice, a President and 9 judges of appeal;


Hears appeals from Supreme Court (single judges) and County Court, and questions of law from Magistrates’ Court and VCAT.

ii. Courts exercising Federal jurisdiction •

High Court: o

Established by s 71 Cth Constn.


Original jurisdiction: !

HC shall have original jurisdiction in all matters… (s 75 Cth Constn): (i)

Arising under a treaty;


Affecting representatives of other countries;


In which the Cth, or a person suing or being sued on behalf of the Cth, is a party;


Between States; or between residents of different States; or between a State and resident of another State; and

(v) !

Writ of mandamus or prohibition or an injunction sought against an officer of Cth.

AND matters involving interpretation of Constn (s 76(i) Cth Constn gives Cth Pmt power to confer orig jurisdiction on the HC in any matter ‘arising under this Constn or involving its interpretation’, and s 30(a) Judiciary Act 1903 (Cth) exercises this power).


Exclusive jurisdiction – s 38 JA (exercise of power given in s 77 Cth Constn). Includes:



Matters arising directly under any treaty;


Suits between states;


Suits by Cth against a State;


Suits by a State against Cth; and


Matters in which a writ of mandamus or prohibition is sought against an officer of Cth.

In non-exclusive matters where HC has original jurisdiction, the HC has the power to remit it to a lower court (Federal Court or SC) (s 44 JA).


Appellate jurisdiction:



s 73 Cth Constn: Jurisdiction to hear appeals from all judgments, decrees, orders and sentences – (i) of a single judge of the HC, or (ii) of any other Federal Court exercising federal jurisdiction, or the Supreme Court of any state.


Need special leave to appeal. Criteria for special leave (s 35A JA): (1) Proceedings involve a question of law of public importance; or HCA is required to resolve differences of opinion between courts as to the state of the law; and (2) interests of the administration of justice, either generally or in the particular case, require the HCA to consider the judgment.

Federal Court o

Created by Federal Court of Australia Act 1976 (Cth) pursuant to s 71 Cth Constn.


Original jurisdiction is limited to those matters in respect of which Pmt has specifically invested the court with jurisdiction (s 19(1) FCAA). Main jurisdiction conferred by s 39B(1A)(c) JA – original jurisdiction includes jurisdiction in any matter ‘arising under any [civil] laws made by the Cth Pmt.’


Also has accrued jurisdiction: !

Fencott v Muller


Court has jurisdiction to determine the whole of the controversy between the parties, even if some part of the controversy would otherwise be outside the jurisdiction;


Are the federal and non-federal claims within the scope of one controversy and thus within the ambit of a matter?



A “sound guide” is that the claims must arise from “common transactions and facts”;


“It is a matter of impression and of practical judgment”;


Discretionary (Stack v Coast Securities).

Otherwise, it does not have State jurisdiction (Re Wakim rendered this invalid, see below).

Territorial jurisdiction •

It is also necessary that the court have jurisdiction over the defendant;

Three ways to satisfy: 1.

Presence of D within the jurisdiction; •

“[Supreme] Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever” (s 85(1) Constn Act (Vic));

Jurisdiction extends to 3 nautical miles from the coast (Coastal Waters (State Powers) Act 1980 and Coastal Waters (State Title) Act 1980 (Cth));

D has to be in the State when the proceedings were started (Laurie v Carroll – in this case, D left the state a day before proceedings started so he couldn’t get sued in Vic).


D voluntarily submits to jurisdiction; or •

To indicate D is submitting, D files an unconditional appearance;

Eg Gunns case – all parties and causes of action arose in Tas, but D’s submitted to Vic jurisdiction because there’s a much larger bar to do pro bono work in Vic.


Valid service of writ within or outside the jurisdiction.


Must follow Service and Execution of Process Act 1992 (Cth), and Supreme Court Rules for service outside Australia (see Topic 7).

International Transfers (forum non conveniens) •

Plaintiff has chosen the court, and it has subject matter and territorial jurisdiction – what if the defendant wants another court to hear the matter?

Defendant can seek a stay of proceedings on the basis of forum non conveniens.

Test (in Aus): Stay will be granted if the Australian court is a clearly inappropriate forum (Oceanic Sun and Voth v Manildra Flour Mills). o

Onus on D to prove that court is ‘clearly inappropriate’ (deferring to P’s choice);


HC in Voth said a court will be clearly inappropriate “…if the continuation of the proceedings in that court would be oppressive (in the sense of seriously and unfairly burdensome, prejudicial or damaging) or vexatious (in the sense of productive of serious and unjustified trouble and harassment) or an abuse of process”;


To decide this, use factors discussed by Lord Goff in Spiliada: i.

Expense and convenience;


Where did the cause of action arise?


Where do the parties reside or carry on business?


Where do the majority of the witnesses reside?


Which law will apply? and


Are there any other parties involved and are they amenable (ie liable to) to any particular jurisdiction?


The HC said they won’t take into account any backlog in the court in question (Voth);


Example: o

Voth (1990, HC): MF was a NSW company, part of an international group of companies based in the USA. For its tax, it used the US accounting firm Deloitte. V was a partner at Deloitte. M sued V in NSW SC for negligence. V asked for a stay. NSW refused so he appealed to HC. Held: Per factors – (ii) US, (iii) US and NSW, (iv) US, (v) US # greatest connection is to US. HC said it was clearly inappropriate for the case to run in NSW so they stayed the case.

Alternate test (UK): Stay will be granted if another forum is more appropriate (Spiliada, 1987 AC). The HC in Voth preferred the Aus approach because it did not require the judging of other courts (which is difficult for international courts).

Transfers within Australia •

Problems of jurisdiction: -

May not get complete resolution in one court;


Risk of challenge to jurisdiction (waste of time and money);


Risk of downgrading State Supreme Courts (ie if all good cases went to Fed Court);


Federal Court becoming court of choice; and


Possibility of inconsistent judgments in same matter.


To solve problems, came up with cross-vesting scheme: o

Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth), Jurisdiction of Courts (CrossVesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic);


Applies to Federal Court, Family Court and all Supreme Courts (but not HC or lower courts);


Scheme gives to every court affected the jurisdiction of every other court. Ie every court has the same jurisdiction.


2 elements of scheme – (1) vesting/conferral of jurisdiction, and (2) transfer of proceedings.

Constitutional validity •

In Re Wakim, the HC said that cross-vesting legislation is unconstitutional to extent that it confers State jurisdiction on Federal Court (& Family Court). Why? Under s 77(i) Constn, the Cth Pmt may make laws defining the jurisdiction of a federal court, but only wrt those (federal) matters which are set out in ss 75 and 76 of the Constn. HC held that s 77(i) was an exhaustive statement of the jurisdiction which the Cth Pmt could confer on a federal court, and further that no entity other than the Cth Pmt had power to confer jurisdiction on a federal court.

Transfers between courts per cross-vesting •

Have to go to the court that proceedings have been brought in and ask for a transfer.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic): 5(1): SC # Fed/Family Court 5(2): SC # another SC 5(4): Fed/Family Court # SC 5(5): Fed/Family Court # Family/Fed Court (ie the other one)

Who can ask for a transfer? -

Either party;


Court on its own motion; or


A-G can make an application.

This scheme does not technically cover lower courts (Magistrates’, County etc) but exceptions apply – if the need arises, a SC can bring a case from a lower court into the SC and then move it from the SC into the desired court.

3 occasions where transfer MUST be ordered per cross-vesting legislation: 1.

Where there are separate but related proceedings pending in a different court (not necessarily same parties – can be same fact situation), and the court considers it would be more appropriate for all proceedings to be decided by the other court (eg s 5(2)(b)(i));


Where there is only a single proceeding pending, if it would be more appropriate for the matter to be determined in another court (eg s 5(2)(b)(ii)); Three considerations5:


(A) whether the relevant proceeding, or a substantial part of it, would have been incapable of being instituted

in the first court, apart from cross-vesting scheme, and capable of being instituted in another; (B) the extent to which the matters for determination are matters arising under or involving questions as to the application,


A. Before the passage of the cross-vesting legislation, where would the case have been heard? B. Extent to which the matters involve the application of the law of another jurisdiction? and C. Interests of justice. 3. •

In either case - it is otherwise in the interests of justice that there be a transfer (eg s 5(2)(b)(iii)).

What does “interests of justice” dictate? o

Look at the 6 Spiliada factors (above) – if there is a preponderance of ‘connecting factors’ with one court then it may be the most appropriate (BHP Billiton);


‘The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered’ – ie so unlike with forum non conveniens, can take into account effect on the system eg backlogs in a court (per HC in BHP Billiton);


No onus of proof on either party – issue is simply what do the interests of justice require? (Beston Parks);


Example: !

Beston Parks v Sexton (VSC, 2008; Hollingworth J):


Facts: Swiss Bank, only Aus place of business in NSW. Lent money to Australians to buy property in Qld. D applied to NSW SC asking for a transfer to Qld.


Held: All 3 occasions satisfied here.


1) Separate but related proceedings? Yes, in Qld and NSW. Using Spiliada factors – relevant law is that of Qld, most of the parties, witnesses and documents in Qld, and less expensive and inconvenient to run case in Qld. Connection with NSW? P’s office in NSW. Thus more appropriate to hear in Qld.


2) A. Qld, B. Qld and C. Look at Spiliada factors above.

Transfers within Victoria •

Courts (Case Transfer) Act 1991 (Vic);

Regulates case flow within Victorian Courts (MC ↔ CC ↔ SC);

Can also be used in conjunction with cross-vesting legislation (eg SC can lift a case up from MC to SC and then transfer it to another jurisdiction);

To ensure that judicial resources matched to case needs;

Facilitates transfer of individual cases so that ‘seriousness’ is matched to the skill, experience & authority of the court;

To make general transfers from one court to another, to match case loads to court capacity.

interpretation or validity of a law of the other court’s jurisdiction and not within the jurisdiction of the first court apart from cross-vesting scheme; and (C) the interests of justice.


TOPIC 4: Instituting Proceedings Client Management •

Legal Profession Act 2004 (Vic);

Must discuss with client: o

Alternatives to litigation (ADR – Topic 2; settlement; or abandon);


Process and consequences; and


Legal costs and complaints handling procedure.

Letters of Demand •

Prior to instituting proceedings, send a letter of demand to the prospective D demanding they do something (eg pay money) and briefly explain why;

Encourages settlement;

If you don’t send one, the court will penalise you with costs (unless good reason, eg limitation period).

Often send 2 letters: 1) aggressive, stipulating maximum amount to be claimed; 2) “without prejudice” written at the top, stipulating lesser amount (due to admission of fault). The “without prejudice” means it cannot be used in court except in assessing costs, where it shows a genuine attempt to settle # recoup costs.

Standing and Capacity Standing (P)

To sue, the plaintiff needs sufficient interest, or standing, in subject matter of litigation;

Q for substantive law – P needs to have substantive right to rely on cause of action on which claim based;

Eg the person injured (Torts) or a party to the contract (Contracts);

If P doesn’t have standing, the court doesn’t have jurisdiction to hear the matter.

Capacity (P and D)

P and D must have recognised legal capacity to sue / be sued;

Capacity determined by character of parties, not rights involved.

Examples: o

Person under disability



Means minor ( P’s claim, the Court may give judgment for the balance (r 10.09, operates like a set-off, except D gets balance); and counterclaim lets you use SC for an action you might not otherwise be able to use it for (if initial proceeding in SC).

Have separate section for counterclaim (sub-heading COUNTERCLAIM);

In pleading counterclaim, follow the same pleading requirements as for a Statement of Claim (r 13.15(a) says O 13 applies to a counterclaim as if it were a SOC). It must reveal a cause of action by pleading of necessary material facts – however, can reference allegations in the DEFENCE section (eg “10. The defendant repeats and relies on the matters set out in paragraphs … of the Defence”, or “10. The Defendant refers to and repeats the allegations in paragraphs… of the Defence”);

See p 36 for joining parties.

Example Defence and Counterclaim: Negligence IN THE SUPREME COURT OF VICTORIA AT MELBOURNE


of 20XX








Plaintiff by Counterclaim


First Defendant by Counterclaim


Second Defendant by Counterclaim



DEFENCE AND COUNTERCLAIM __________________________________________________________________________________________ Date of document:

29 April 2010

Filed on behalf of:

The Defendant and Plaintiff by Counterclaim

Prepared by:

Solicitors Code: 4321

Springvale Monash Legal Service

DX 1 Melbourne

60 Railway Tce, Springvale

Tel: 03 1234 5678

Victoria, 3168

Ref: name and email

__________________________________________________________________________________________ .. 2 .. DEFENCE As to the Plaintiff’s Statement of Claim dated 7 April 2010, the Defendant says as follows: 1.

As to paragraph 1, he: (a)

admits that on or about 1 April 2010, a car driven by him collided with a car (“the other car”) being driven by the Second Defendant by Counterclaim;


does not admit that the Plaintiff is or was the owner of the other car;


otherwise denies paragraph 1. PARTICULARS The collision occurred on 1 April 2010 between the other car, being a 2008 Model Rolls Royce Phantom registration number UNPOOR driven by the Second Defendant by


Counterclaim and a blue 2007 model Mazda 6 registration UNP-123 owned and driven by the Defendant. It occurred at the intersection of Warragul and Waverley Roads, Chadstone in the State of Victoria at or about 2:55pm. The Defendant was driving West along Waverley Rd, then attempted to turn right into Warragul Rd. As he did so, the Second Defendant by Counterclaim drove through a red light and collided with the left hand side of his car, thereby causing the collision. 2.

At all relevant times, the Second Defendant by Counterclaim was: (a)

the servant or agent of the Plaintiff;


acting within the scope of his employment.

[Vicarious liability] PARTICULARS The Second Defendant by Counterclaim was at all relevant times employed by the Plaintiff as her driver 3.

The collision was caused by the negligence of the First Defendant by Counterclaim and Second Defendant by Counterclaim. PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT (a) Failing to keep any or any proper look out (b) Driving at a speed excessive in the circumstances (c) Failing to give any or any adequate warning of the approach of the car (d) Driving or attempting to drive across the path of the defendant’s car when there was neither time nor space to do so (e) Failing to keep the car under any or any proper control (f) Failing to apply the brakes in the car in time to avoid the collision or at all (g) Failing to steer or control the car so as to avoid the collision (h) Failing to give way to the defendant’s car (i) Failing to stop at a red light (j) Failing to comply with the provisions of the Road Safety Act 1986 and regulations made under it. (k) Failing to supervise adequately or at all her servants or agents (l) Failing to engage a driver who was adequately competent or experienced (m) Failing to provide her driver with any or any adequate training PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT


The Defendant refers to and repeats particulars (a) to (j) above as if they were set out here in full. 4.

The Defendant will seek to set off against the Plaintiff’s claim so much of the sums claimed in Defendant’s Counterclaim as is sufficient to extinguish the Plaintiff’s claim or part of it. [Set-off] COUNTERCLAIM


The Plaintiff by Counterclaim refers to and repeats the admissions and positive allegation in paragraphs 1 to 3 of the above Defence as if they were set out here in full.


As a result of the negligence of the First and/or Second Defendants by Counterclaim, the Plaintiff by Counterclaim has suffered loss and damage. PARTICULARS The loss of the Plaintiff by Counterclaim’s car


Less salvage value





Towing and Storage TOTAL




AND THE DEFENDANT COUNTERCLAIMS: A. Damages according to paragraph 6 of the counterclaim. B. Interest pursuant to the Supreme Court Act 1986. C. Costs.

DATED: 30 April 2008 …………………………………………………………………………………… SPRINGVALE MONASH LEGAL SERVICE Solicitors for the Defendant


3. [Reply and] Defence to Counterclaim Reply

A reply to the Defence;

Optional (r 13.13(1));

Only necessary if (see r 13.07(1)): o

There is a new matter that will make a defence pleaded by the D not maintainable;


There is a matter arising from the defence that would take the D by surprise if the P argued it without specifically pleading it; or


P wants to raise Qs of fact not arising from the defence.

Why only optional? When pleadings have closed, it’s said that the parties have joined issues (settled on all things that are in dispute). r 13.13(1): No reply or subsequent pleading merely joining issue shall be served. (2): At the close of pleadings, a joinder of issue on the pleading last served is implied. (4) A joinder of issue operates as a denial of every material allegation of fact made in the last pleading, except for (3) SOC or counterclaim, which other party must respond to (because no joinder of issue is made on these).

Defence to Counterclaim

Must serve (see r 13.13(3));

Follow the same pleading rules as for a Defence (r 13.15(b) says O 13 shall apply to a defence to counterclaim as if it were a defence).

Duties and Obligations •

Paramount duty (see Civil Procedure Act s 16)

Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved, including, but not limited to(a) any interlocutory application or interlocutory proceeding; (b) any appeal from an order or a judgment in a civil proceeding; (c) any appropriate dispute resolution undertaken in relation to a civil proceeding.


• Overarching Obligation – Requirement of Proper Basis (see Civil Procedure Act s 18) A person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that: (a) is frivolous; or (b) is vexatious; or (c) is an abuse of process; or (d) does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis. • Proper Basis Certification (see Civil Procedure Act s 42) • Proceedings may be commenced or substantive documents filed despite failure to certify (see Civil Procedure Act s 45) • Court may take failure to comply with any certification requirement into account (see Civil Procedure Act s 46).

Challenges and objections Inadequate particulars

r 13.11(1): The court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party’s pleading, (2) if the order is necessary or desirable to: (a) enable D to plead; or (b) for some other special reason.

NOTE: The party should first apply by letter for the particulars they require, otherwise the Court may refuse the order (r 13.11(3)).

Error in indorsement or pleading

r 23.02: Striking out pleading Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading–– (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the proceeding; or (d) is otherwise an abuse of the process of the Court–– the Court may order that the whole or part of the indorsement or pleading be struck out22 or amended.


Extremely difficult to get pleadings struck out, see Gunns case study.


r 23.01: Stay or judgment in proceeding (1) Where a proceeding generally or any claim in a proceeding23–– (a)

does not disclose a cause of action;


is scandalous, frivolous or vexatious; or


is an abuse of the process of the Court––

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim. (2) Where the defence24 to any claim in a proceeding–– (a)

does not disclose an answer; or


is scandalous, frivolous or vexatious––

the Court may give judgment in the proceeding generally or in relation to any claim.

r 27.07: Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order–– (a) that the matter be struck out; or (b) if the document has been filed, that it be taken off the file. [Generally not used for pleadings]

Amendment •

If court ordered indorsement or pleading be amended per r 23.02, use r 36.01 (on p 38).

Case study: Gunns •

r 13.11: Inadequate particulars Bongiorno J said of Gunns’ statement of claim: “There follows nine pages of “particulars” of that campaign. They consist of long paragraphs which make general allegations against a very large number of individuals and organisations including many defendants in this proceeding. The particulars also incorporate the allegations contained in approximately 40 other paragraphs in the statement of claim. The overall impression of them is that of a collection of very general allegations of wrongdoing by a large number of people over an approximately five year period from 1999 to about 2004. Even if those defendants mentioned could successfully navigate their way through the labyrinth of allegations in these particulars, they would still not be able to understand the case [they]… would be required to meet to defend the allegation” (para 20, July 2005).


“Claim in a proceeding” includes a claim by counterclaim, and third party notice (r 23.01(3)(a)).


“Defence” includes a defence to a counterclaim, and a defence to a claim by third party notice (r 23.01(3)(b)).


r 23.02: Application to strike out SOCs o

Versions 1, 2 (judgement 7/05) and 3 (8/06) were challenged;


Q: Has an intelligible and appropriate pleading been produced?


Bongiorno J said (7/05, para 57): It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules & fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, & intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02.


His Honour gave Gunns leave to amend (4 weeks);


He tried to tell them what they should do (para 57): Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent & detailed form.


Gunns complained that 4 weeks was not long enough, in response (para 60): It may be that an exposition of the plaintiffs’ case against each defendant in more precise terms would lead to a reduction in the size & complexity of a new statement of claim. That is a matter for the plaintiffs & their advisers. They should be aware however that the Court will not tolerate laxity of pleading or deficiency of particulars to the disadvantage of those against whom the proceeding is brought. The case will be managed strictly. After all, the plaintiffs had as much time as they required to prepare it before it even commenced. They cannot now complain of having to formulate their claims properly in a timely manner or, as a last resort, face summary dismissal of them.


# But if the judge never strikes out the pleading, what incentive does P have to prepare it properly?


Re version 3 (8/06, para 33): All of the defendants sought the striking out of V3. Some of them went further and sought that judgment be entered for them against the plaintiffs (r 23.01), thus terminating this proceeding forever. However, as was pointed out in the previous judgment, the plaintiffs have made a series of serious allegations about individual acts of tortious behaviour by various defendants in several sections of V3. They must be given an opportunity of bringing those allegations before the Court in an intelligible and appropriate form, properly and economically pleaded. Many of them amount to criminal offences, some of them serious, and it would be an injustice to the plaintiffs to enter judgment against them and thus shut them out from litigating those allegations. The right to due process is mutual.



His Honour ordered V3 be struck out, and the proceeding be stayed until further order;


The 4th SOC was adequate.


TOPIC 10: Methods of Gathering Evidence A. Discovery •

Discovery is the disclosure of documents relevant to the matters pleaded to the other side;

After pleadings are closed.

Order 29 applies to a proceeding commenced by writ (r 29.01(1)(a));

Three step process: 1.

Serve Notice For Discovery; o

r 29.02(1): Where the pleadings between any parties are closed25, any of those parties may, by notice for discovery served on any other of those parties, require the party served to make discovery of all documents which are or have been in that party's possession relating to any question raised by the pleadings;


(2): Shall be in Form 29A; FORM 29A Rule 29.02(2) NOTICE FOR DISCOVERY [heading as in originating process] To the [identify party] You are required to make discovery of documents within 42 days after service of this notice on you. Dated [e.g. 15 June 20


[Signed] o 2.

Served via ordinary service.

Obligation to make discovery o

r 29.03: A party upon whom a notice for discovery is served shall make discovery of documents within 42 days after (a) service [or (b) day upon which notice is deemed to be served by virtue of r 29.02(3)].


A notice served before pleadings are closed shall be taken to have been served on the day after pleadings close

(r 29.02(3)).



Affidavit of Documents o

r 29.04: Prepare an Affidavit of Documents in Form 29B;


Affidavit of Documents shall: (a)

identify the documents which are or have been in the possession of the party making the affidavit;


enumerate the documents in convenient order26 & describe each document27 or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified;


distinguish those documents which are in the possession of party making the affidavit from those that have been but are no longer in that party's possession, and shall as to any document which has been but is no longer in the possession of the party— (i) state when the party parted with the document; and (ii) the party's belief as to what has become of it;


where the party making the affidavit claims that any document in that party's possession is privileged from production, state sufficiently the grounds of the privilege.

At the end of Form 29B, two schedules:


Schedule 1: Documents you still have – divide into 2 groups, Part 1: docs willing to show the other side and Part 2: docs claiming privilege over (per r 29.04(d), have to state the grounds of the privilege and what facts make it privileged); Schedule 2: Documents you used to have. Has to be signed by the deponent (the client).


Must document be disclosed?

Q1: Is it a “document”? o

s 38 Interpretation of Legislation Act 1984 (Vic): "document" includes, in addition to a document in writing— (a)

any book, map, plan, graph or drawing;


any photograph;


any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever;


any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;


any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and


Usually chronological (by date).


Say whether it’s a copy or original.



anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them.

Q2: Is it relevant? o

Document must relate to question in proceeding, relate meaning either helps or damages your case;


Four instances of when document is relevant (Peruvian Guano, 1882 Eng CA): 1.

Documents that would28 be evidence upon any issue in the case;


Documents that would advance the case of the party seeking discovery;


Documents that would damage the case of the party giving discovery; and


Documents which could lead to a train of inquiry which might advance or damage the case of the party giving discovery.


Facts of Peruvian: Contract cause of action. P’s claimed contract formed and D’s breached it. D disputed whether contract formed. P sued D. In discovery, P referred to a book of company minutes which referred to other docs not disclosed (and dated subsequent to alleged breach). P said not relevant. Brett LJ said these docs may evidence that the whole matter was negotiation, not a contract, and therefore relevant to D’s case and must be disclosed.

Q3: Is it or was it in the party’s “possession”? o

r 29.01(2): Possession means possession, custody or power;


Possession: the physical holding of the document resulting from the right to its possession (eg an agent or bailee);


Custody: the mere actual physical holding of a document, regardless of ownership, regardless of the right to possession eg an employee;


Power: the enforceable right to obtain possession or control of the document from the person who is holding it ie an enforceable right to obtain possession from another person.

IF SO, then party has to disclose it. UNLESS…

Q4: Covered by privilege? o


Grounds: -

Legal professional privilege;


Privilege against self-incrimination;


Privilege against exposure to penalties & forfeiture;


Public interest;


Without prejudice communications;


Priest and penitent;

Legal professional privilege !


To encourage full disclosure between solicitor and client;

Or may reasonably (per Brett LJ).



Protects info given between lawyer (solicitor or barrister) and client;


Q: When is a document protected?


Dominant purpose test: Communication which is made predominantly for the purpose of obtaining legal advice or use of a lawyer in existing or anticipated litigation is protected (HC in Esso v Commissioner of Taxation, now contained in s 119 Evidence Act 1995 (Cth));


A party can waive privilege.

Q5: Is there restricted discovery? o

r 29.05: Court can order at any time that discovery by a party not required, or discovery limited to certain documents, certain classes of documents, or certain questions in the proceeding [or, not written in the rule but Karinne said it, that only certain people can see doc eg lawyers for other side];


Eg to not disclose confidential commercial information that’s not privileged;


Example: Mobil Oil v Guina Developments (Vic CA) !

Facts: GD put in a tender to build petrol station on new Western Ring Road. Mobil and McDonalds won tender. G sued Roads Corporation for m&d conduct under TPA, saying they didn’t select winning applicant according to advertised basis, rather on how well known the applicants were;


Mobil and McDonalds didn’t want tender document to be handed over to GD. In the next competition between the two, GD could use that info to underbid M&M. So they came in as interveners;


Held: Confidentiality alone will not ordinarily be sufficient reason to deny inspection by opposite party. BUT in a situation like this, where GD would inevitably use info if they found out about it and M&M could not prove that GD was using it, the attainment of justice requires limited disclosure (to counsel, solicitors and nominated experts).

Inspection of documents

r 29.09(1): If the party wants to inspect any document in Affidavit of Documents, complete and serve a Notice to Produce;

Form 29C (r 29.09(3));

r 29.09(2): The party upon whom a notice to produce is served shall, within 7 days after service, serve on the party requiring production a notice appointing a time within 7 days after service of the notice under this paragraph when, and a place where, the documents may be inspected;

Can photocopy the documents (rr 29.09(4) and (5)).

In addition to inspecting docs in the Affidavit of Documents, can inspect docs referred to in the pleadings (r 29.10(2)). Rule 29.09 applies (r 29.10(3)). Notice to Produce shall be in Form 29C (r 29.10(5)).

Particular discovery


If you suspect the other side hasn’t made full discovery;

r 29.08(2): If grounds to believe a relevant doc or class of docs is or has been in a party’s possession, Court may order that party to make and serve on any other party an affidavit stating: (a) whether such docs were ever in the party’s possession, and if so, describing each one; and (b) if it has been but is no longer in that party’s possession, when the party parted with it and that party’s belief as to what has become of it.

IF THEY DON’T COMPLY: Order for discovery

r 29.11: Where a party (a) fails to make discovery (rr 29.03 and 29.04); (b) fails to serve a notice appointing a time for inspection (rr 29.09 or 29.10); (c) objects to produce any document for inspection; (d) offers inspection unreasonable as to time or place; or (e) objects to allow any document to be photocopied or to supply a photocopy of the document; the Court may order the party to do such act as the case requires.

Punishment is costs.

Supplementary discovery

r 29.15: A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit.

IE as new docs come into your possession, have to make supplementary affidavit of documents.

Permitted use of discovered documents

Limitations on use: o

Implied undertaking not to use a discovered document for any purpose other than the litigation in which it is disclosed;


Given by party and their solicitors – may be committed for contempt of court if they use documents for outside purposes;


Extends to answers to interrogatories, documentary witness statements and material provided under non-party discovery.

If document becomes publically known (eg read out in court), it’s not protected by undertaking anymore.

Case study: McCabe



Facts: McCabe commenced separate proceedings seeking declaration that use of docs outside the proceedings was not limited by implied undertaking, so she could supply them to US Justice Dept;


On 7 May 2002, Byrne J grants declaration;


On 8 May, BAT seek to reinstate implied undertaking and dissolve 7 May judgment, but Byrne J dismisses BAT’s application. BAT appealed to the Court of Appeal;


On 14 June 2002, Court of Appeal overturns Byrne’s J judgment pending determination of appeal in the ‘main’ proceedings.


r 29.12.1: Default notice (2) If a party required to make discovery of documents fails to make discovery within the time, the party entitled to the discovery may serve on that party a notice in Form 29D. (3) If, within 7 days after service of that notice, the party on whom the notice is served does not make discovery, the Court may order–– (a)

If the party required to make discovery is P, that the proceeding be dismissed;


If the party required to make discovery is a D, that D’s defence, if any, be struck out.

(4) Applies to a counterclaim and to a claim by third party notice as if they were a proceeding. (6) The Court may set aside or vary an order made under (3).

Document destruction s 254 Crimes Act 1958 (Vic), inserted by Crimes (Document Destruction) Act 2006 (Vic): (1) A person who— (a)

knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and


either— (i)

destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or


expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and


acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding—

is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both. (2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future. # Problems? Higher standard of proof, and requires proof of intention (like in McCabe, could say merely housekeeping).


AND Evidence (and Miscellaneous Provisions) Act 1958 (Vic): s 89A: A document is unavailable in a civil proceeding if- (a) the doc is or has been in the possession, custody or power of a party to the proceeding; and (b) the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification. s 89B(1): If it appears that- (a) doc is unavailable, and (b) no reproduction of the doc is available, and (c) the unavailability is likely to cause unfairness to a party- the court, on its own motion or on application of a party, may make any ruling or order that the court considers necessary to ensure fairness. (2) A ruling or order may be- (a) that an adverse inference will be drawn from the unavailability, (b) that a fact in issue between the parties be presumed to be true in the absence of evidence to the contrary, (c) that certain evidence not be adduced, (d) that all or part of a defence or SOC be struck out, or (e) that the evidential burden of proof be reversed in relation to a fact in issue. s 89C: Court must have regard to- (a) the circumstances in which the doc became unavailable; and (b) the impact of unavailability; and (c) any other matter court considers relevant. AND Civil Procedure Act 2010 s 29: A court may make orders it considers appropriate in the interests of justice (specifically in cases of ‘prejudicial affected individuals’ arising through contravention of overarching obligations). s 55: A court may make any order or give any directions in relation to discovery it considers necessary or appropriate. s 56: A court may make any order or give any direction it considers appropriate if it finds that there has been – (a) a failure to comply with discovery obligations (b) a failure to comply with any order or direction of the court in relation to discovery (c) conduct intended to delay, frustrate, or avoid discovery of considerable documents. s 57: Unless a court orders otherwise, any party to a civil proceeding may cross-examine or seek leave to conduct an oral examination of the deponent of an affidavit of documents prepared by or on behalf of any other aprty to that proceedings if there is a reasonable basis for the beliefe that the other party may be – (a) misinterpreting the party’s discovery obligations (b) failing to disclose discoverable documents. S 58: Nothing in the Civil Procedure Act 2010 derofates from the operation of Div. 9 of the Evidence (Miscellaneous Provisions) Act 1958. Case study: McCabe o

BAT destroyed docs before litigation started;


McCabe sought remedy under r 29.12.1 (doc destruction provisions didn’t exist then);


Eames J did strike out D’s defence, saying process of discovery subverted by the defendant & its legal advisers with the deliberate intention of denying the plaintiff a fair trial;



However, Court of Appeal reversed this. They said it happened before proceedings commenced, so technically D haven’t done anything wrong. Only reason we would punish D is if they were trying to pervert the course of justice, and McCabe didn’t argue this;


Pmt responded by introducing above legislation.

B. Preliminary discovery and non-party discovery Discovery to identify a defendant

Can guess, go to court and lose and pay costs; OR

r 32.03: Where (1)(a) an applicant has made reasonable inquiries and is unable to identify the defendant to bring a proceeding and (1)(b) it appears that some person has or is likely to have knowledge, facts, document or thing tending to assist in such ascertainment, then (2) the Court may order that the person shall (a) attend before the Court to be orally examined or (b) make discovery to the applicant of all documents relating to the description of the person concerned.

Discovery from prospective defendant

Know who D is, but not sure if you have a good cause of action and need discovery to check;

r 32.05: Where (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief from a person; (b) after making all reasonable inquiries, the applicant has not sufficient info to enable them to decide whether to commence a proceeding; and (c) there is reasonable cause to believe that that person has or is likely to have/had in their possession any document that would assist the applicant to make their decision–– then the Court may order that that person shall make discovery of that document.

Discovery from non-party

r 32.07: On application of any party to a proceeding, the Court may order that a non-party in respect of whom it appears has/had or is likely to have/had in their possession any doc which relates to any question in the proceeding shall make discovery to the applicant of that document.

C. Interrogatories •

Interrogatories are written questions prepared by one side that other side has to provide written answers for;

Another way to gather information;

Normally discover then interrogate.


How do you serve interrogatories?

r 30.02: When interrogatories allowed (1) Any party may serve interrogatories on another party relating to any question between them in the proceeding; (2) Where pleadings between any parties are closed, interrogatories may be served once without leave of the Court by any of those parties on any other of them; (3) Where (2) does not apply (pleadings not closed, or want to serve >1), the Court may order that any party may serve interrogatories on any other party; (4) Court may grant leave to an interrogating party29 to serve further interrogatories

r 30.04(a): Interrogating party has to write up questions, serve on the other party and file it with the court.

Can only ask questions about relevant issues/ issues in dispute – NOT about what evidence they’ll be using, or witness credibility etc. Try to be as precise as possible, to get clear answers in return.

How does other party respond?

42 days to respond by filing affidavit and serving copy on interrogating party (r 30.04(b)).

r 30.05(1): Sources for answers -

(a) Party’s own knowledge of the fact or matter. If no knowledge, own belief. Knowledge is what the party actually knows; belief is what the party thinks on a reasonable basis is correct (if relying on belief, have to state that in the answer);


(b) Party will not have a belief where they have no info on which to form a belief or if for reasonable cause they have no belief that the info is true;


(c) Party shall answer from any belief irrespective of the source of the information;


(d) Privileged information exempt;


(e) Where the party has no knowledge, for the purpose of enabling them to form a belief they shall make all reasonable inquiries to determine (i) whether any person has acquired knowledge in their capacity as servant/agent and (ii) if so, what that knowledge is.


r 30.06(1): A party interrogated shall answer each interrogatory specifically. (2) Where the party objects to answer, they shall state briefly (a) the grounds of objection and (b) the facts on which it is based.


Party who serves interrogatories (r 30.01).


r 30.07(1): Objections to answer A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of the following grounds— (a) the interrogatory does not relate to any question between the party and the interrogating party [includes, per (2), an interrogatory the sole purpose of which is to (a) impeach the credit of the party interrogated, (b) enable the interrogating party to ascertain whether the party has a claim or defence other than that which the party has raised in the proceeding, or (c) enable the interrogating party to ascertain the evidence by which the interrogated party intends to prove their case]; (b) the interrogatory is unclear or vague or is too wide; (c) the interrogatory is oppressive [requires unreasonable amount of work to answer]; (d) the interrogatory requires the party to express an opinion which the party is not qualified to give; (e) privilege.


r 30.09.1: (2)

If a party interrogated fails to answer interrogatories within the time limited, the interrogating party may serve on that party a notice in Form 30A;

(3) If, within 7 days after service, the party interrogated does not answer the interrogatories, the Court may order (a) if the party interrogated is P, that the proceeding be dismissed, or (b) if the party interrogated is a D, that D’s defence be struck out.

r 30.10(1): A party who does not within the time limited comply with an order made under r 30.09 shall be liable to committal.

D. Notices to Admit •

Discovery # Interrogatories # Notice to Admit;

r 35.03: (1) A party may serve on another party a notice (Form 35A, (4)) stating that unless that party, within a time to be expressed in the notice (not less than 14 days), disputes the facts specified in the notice, that party shall be taken to admit those facts; (2) If the party served with the notice does not want to admit, must serve a notice of dispute (Form 35B, (4)) within the time allowed. Otherwise, taken to admit those facts; (3) By leave of the Court, a party may withdraw an admission taken to have been made under para (2).

r 35.06: Where the party served disputes the fact and afterwards it’s proven true at trial, that party will have to pay the costs of proof.


See r 35.05 re notice to admit for authenticity of documents.

E. Subpoenas •

Notice to compel someone to attend court;

Subpoena anyone who’s going to be a witness.

r 42.02(1): In any proceeding the Court may by subpoena order the addressee– (a) to attend to give evidence; (b) to produce any document or thing for evidence; or (c) both.

Must be served personally (r 42.05(1));

Conduct money must be given (r 42.06(1) – conduct money means money to meet the reasonable expenses of attending court and returning, r 42.01).

• •

The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena: AFP v Magistrates’ Court of Victoria [2011] VSC 3, [28] (Forrest J). (a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;22 (b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;23 (c) the applicant for the witness summons must also satisfy the court that it is “on the cards”,24 or that there is a “reasonable possibility”,25 that the documents sought under the subpoena “will materially assist the defence”.26 (d) a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;27 (e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.28 There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.29 (f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough — the criteria set out in (c) must be satisfied. (g) in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.30 (h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.31


TOPIC 11: Interlocutory procedure General •

“Interlocutory” means it is a court hearing before the actual trial;

Does not finally determine the rights of parties;

Generally, prevents final relief from being undermined by steps taken prior to trial.

Procedure: -

Party writes document called a summons (r 46.02(1));


Form 46A (r 46.04(1));


File with the Prothonotary (r 46.04(2));


Per r 46.05(1), serve a sealed copy (sealed per r 46.04(3)) and a copy of any affidavit in support30 on every person to whom notice of the application is to be given (for the court to determine, r 46.03). Use ordinary service, if writ served and appearance entered (otherwise, personal service r 46.05(3));


Application can be heard ex parte, if the Court does not think notice should be given to another person (r 46.03, eg where urgent) or if the person served fails to attend and the Court is satisfied the summons was duly served (r 46.07(1)).


The Court may set aside or vary an order where it was heard ex parte (r 46.08). Eg if all the info was not disclosed in the affidavit in support.

Injunctions •

Orders made with the purpose of regulating the position between parties in an action pending trial;

May be interim (ie temporary, of short operation) or final;

May be mandatory (requiring other side to do specified acts) or prohibitory (requiring other side to refrain from specified acts);

• 30

May be made ex parte (above). Affidavit in support sets out all the information that the court needs to make its decision.

Rules for affidavits set out in Order 43. r 43.01: (1) shall be made in the first person; (2) state place of residence of deponent, their occupation, whether a party to proceeding; (4) divided into paragraphs numbered consecutively; (5) signed by deponent; (6) each page shall be signed; and (7) shall be sworn. r 43.03(1): shall be confined to facts in deponent’s knowledge, (2) but interlocutory affidavits can be based on belief (if stated). r 43.06(1): A document referred to in an affidavit shall not be annexed to the affidavit but may be referred to as an exhibit.


r 38.01: Court may grant an injunction at any stage in a proceeding or, in urgent cases, before the commencement of a proceeding;

r 38.02(1): In an urgent case, the Court may grant an injunction on application made without notice.

Test: To get an interim injunction, must establish: 1.

There is a serious question to be tried (a prima facie case); AND


The balance of convenience favours granting an interlocutory injunction. This is where equity’s discretionary factors come in (ie look at the inconvenience and hardship that would be occasioned to the parties, any acquiescence or delay on the part of the applicant, whether the claim is frivolous or vexatious, desirability of preserving the status quo or preventing irreparable injury pending a full hearing).

Search orders •

Previously called ‘Anton Piller orders’ and used to be part of the court’s inherent jurisdiction to prevent abuse of process;

New O 37B, introduced in 2006, codified & renamed search orders;

Write summons and go to court to get order. Then go with order to the premises.

r 37B.02(1): The Court may make a search order, in any proceeding or in anticipation of any proceeding, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding. A search order may be in Form 37BA, (2).

Form 37BA: FORM 37BA SEARCH ORDER [title of proceeding] PENAL NOTICE TO: [name of person against whom the order is made] IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A)






This is a "search order" made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the applicant has given to the Court the undertakings set out in Schedule B to this order and after the Court has read the affidavits listed in Schedule C to this order. The applicant has given to the Court the applicant's undertakings set out in Schedule B to this order. The applicant's solicitor has given to the Court the applicant's solicitor's undertakings set out in Schedule B to this order. Each independent solicitor has given to the Court the independent solicitor's undertakings set out in Schedule B to this order. Each independent computer expert has given to the Court the independent computer expert's undertakings set out in Schedule B to this order. THE COURT ORDERS: …

Test: r 37B.03(1): The Court may make a search order if the Court is satisfied that–– (a) applicant has a strong prima facie case; (b) the potential or actual loss or damage to the applicant will be serious if search order is not made; and (c) there is sufficient evidence in relation to the respondent that–– (i)

the respondent possesses important evidentiary material; and


there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence.

Eg in Anton Piller: Court of Appeal (UK) gave plaintiff an order that their solicitors could collect confidential documents from the defendant’s premises (P’s English agents) because P had evidence that D was going to give this information to a rival company. Ormrod LJ said “Such orders will rarely be made, and only when there is no alternative way of ensuring that justice is done to the applicant” (at 61).

r 37B.03(2): Application shall be supported by an affidavit which shall include: (a) a description of the things or the categories of things in relation to which the order is sought; (b) address or location of premises; (c) why search order is sought, including whether there is a real possibility that things will be destroyed or made unavailable for use in evidence; (d) prejudice, loss or damage likely to be suffered by applicant if order not made; (e) name, address, firm and commercial litigation experience of an independent solicitor31 who consents to being appointed to serve the search order and supervise its execution; (f) if premises are residential, whether or not applicant believes the only occupant is likely to be female, a child, or vulnerable person (age, mental incapacity, infirmity or English language ability) # if so, Court will make you bring a female or translator etc.

r 37B.03(3): Applicant must give the usual undertakings as to damages [ie that the applicant, by its counsel, undertakes to the court that it will abide by any order which the court may make as to damages, should the court determine that the respondent has suffered any damage by reason of this order which the applicant ought to pay] and must undertake to pay the independent solicitor’s reasonable costs and disbursements.


Think carefully, can be expensive.

Required by r 37B.06.


r 37B.05: The terms of the search order may direct each person who is named or described in the order– to enter premises [(1)(a)(i)], to take and retain any thing described in order [(1)(c)], to make copies/ photographs of any thing in the order [(2)(b)] or anything else as Court considers appropriate [(1)(e)].

Freezing orders •

Previously called ‘Mareva injunctions’;

New O 37A, introduced 2006, codified and renamed freezing orders.

To stop D intentionally trying to become judgment proof/ frustrate enforcement of court order in P’s favour (eg by sending assets off overseas).

r 37A.02: (1) The Court may make a freezing order, upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied; (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Aus or from disposing of, dealing with, or diminishing the value of, those assets; (3) Use Form 37AA;

Test: 1.

Applicant has a good arguable case (r 37A.05(1)(b)); AND


Having regard to all the circumstances, there is a danger that a prospective judgment will be wholly or partly unsatisfied because the prospective judgment debtor might abscond, or their assets might be removed from Aus, or from a place outside Aus, or disposed of, dealt with or diminished in value (r 37A.05(4)).

Court can make ancillary orders, if appropriate (r 37A.03(1); eg for respondent to tell applicant where and what the assets are, (2)(a));

Notes: Can apply at any time (best at the start though), can’t get more assets frozen than what their claim is likely worth, and respondent is allowed to continue to make ordinary expenditure;

EG in Mareva, the Court of Appeal (UK) granted an ex parte injunction to restrain the defendant charterers from removing or disposing any of the monies which they had received from sub-chartering P’s ship out of the jurisdiction, because D was not paying P the charges as they became due. Lord Denning MR said injunction should be granted, as the time charterers have control of the bank account and may at any time move the money out of the country.

r 37A.02(5): Affidavit in support must contain (a) Info about the judgment that has been obtained, or info about the cause of action including (i) the basis of the claim for substantive relief, (ii) the amount of the claim, and (iii) if application made ex parte, the applicant’s knowledge of any possible defence;


(b) The nature and value of the respondent’s assets, so far as they’re known, within and outside Aus; (c) The danger of respondent or person controlling assets absconding, removing assets from Aus, dealing with assets or diminishing their value; (d) The identity of any other person who the applicant believes may be affected by the freezing order and how that person may be affected by it.

Applicant has to give undertaking as to damages (ie they’ll compensate anyone who has to expend money in carrying out the order). Could be expensive.

Form 37AA FORM 37AA Rule 37A.02 FREEZING ORDER [title of proceeding] PENAL NOTICE TO:

[name of person against whom the order is made]






[name of person against whom the order is made]

This is a "freezing order" made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the Court has been given the undertakings set out in Schedule A to this order and after the Court has read the affidavits listed in Schedule B to this order1. The applicant has given to the Court the undertakings set out in Schedule A to this order. THE COURT ORDERS: …

Security for costs For Defendant.

r 62.02(1): Where–– (a) P is ordinarily resident out of Vic; (b) P is a corporation or sues, not for P’s own benefit but for the benefit of some other person [not in a representative capacity], and there is reason to believe that P has insufficient assets in Vic to pay the costs of D if ordered to do so; (c) A proceeding by P in another court for the same claim is pending;


(d) The address of P is not stated or is not stated correctly in the writ [and P did not act innocently and without intention to deceive, (2)]; (e) P has changed his, her or its address after the commencement of the proceeding in order to avoid the consequences of the proceeding; (f) Under any Act the Court may require security for costs–– The Court may, on the application of D, order that P give security for the costs of the D of the proceeding and that the proceeding as against D be stayed until the security is given. •

r 62.04: Where a plaintiff fails to give the security required by an order, the Court may dismiss the plaintiff’s claim.

Repercussion: some Ps might not be able to afford litigation, this prevents them from litigating.


TOPIC 12: Disposition without trial 1. Summary disposition •

Summary disposition = judgment from court without trial;

Note: so res judicata applies, even though no trial.

Default judgment

Interlocutory procedure, so follow steps on p 97.

Four occasions: 1.

r 21.01(2): Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against the defendant. (3) P must file: [a summons], and also (a) a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant, (b) an affidavit of service, and (c) where a claim is made other than for the recovery of a debt, damages or any property, a statement of claim (if no special indorsement in writ).


r 21.02(1): Where any defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may enter or apply for judgment against that defendant. (2) P must file: [a summons], and also an affidavit proving the default. Also applies to a defence that was struck out (r 21.02(3)) and a counterclaim (r 21.06).


r 24.02(1): Where a party fails to comply with an order to give particulars of any pleading, or with an order for the discovery or inspection of documents, or for answers to interrogatories, the Court may order––



if the party is P, that the proceeding be dismissed;


if the party is a D, that D’s defence be struck out (and then use r 21.02).

Where any court order is not complied with, the Court under its inherent power can give default judgment (can include in the order a self-executing order, meaning on expiry of order the other party automatically gets default judgment).

If other party wants to CHALLENGE default judgment: For O 21 judgments, use r 21.07: D can ask for it to be set aside. For O 24 judgments, use r 24.06: again, D/P can apply for it to be set aside. Party will have a right for it to be set aside if mistake (irregularity); otherwise, have to ask for courts leave.


Court will ask: Was there unreasonable delay? Reason for failure? What does it mean for other party to set aside the order – can damages compensate for any change in position?

Summary judgment

Get judgment on the merits of the case without trial;

No default, both parties’ behaving themselves.


r 22.02(1): Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against that defendant on the ground that the defendant has no defence to the whole or part of a claim … or no defence except as to the amount of a claim.32 IE D has no possible defence and so Court will give judgment.

Proceeding must have been commenced by writ (r 22.01);

r 22.03(1): Application by P for summary judgment is made by summons supported by an affidavit–– (a) verifying the facts on which the claim is based and (b) stating that in the belief of the deponent there is no defence to that claim, or no defence except as to the amount claimed. (4) P shall serve the summons and a copy of the affidavit in support on D not less than 14 days before the day for hearing.

BUT r 22.04(1): D may show cause against the application by affidavit. (3) D shall serve a copy of any affidavit on P not less than 3 days before the day for hearing, unless the Court otherwise orders.


See r 23.01, p 84 (eg “abuse of process” where 2 actions are commenced in different jurisdictions relating to single incident or cause of action, or where there has been considerable delay in the commencement or in the conduct of proceedings- see Cubillo);

r 23.03: On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits;

Very difficult to get, as depriving P of their right to trial.


The power to obtain summary judgment must be exercised with “exceptional caution” and “should never be exercised unless it is clear that there is no real question to be tried” (O’Loughlin J in Cubillo);

In this case, plaintiffs were 2 Aboriginals who were members of the Stolen Generation and wanted to sue the Cth Govt. In both cases, the limitation period had expired (proceeding brought 54 and 43 years later). Cth asked for case to be summarily dismissed. O’Loughlin J refused the application, as the Ps could get


r 22.02(2): Para (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or

seduction or to a claim based on an allegation of fraud.


extension of time and this requires a full trial of the issues. At trial, once it became clear Ps would not get extension, O’Loughlin J then dismissed the case summarily.

Vexatious litigants

s 21 Supreme Court Act: (2) Where court satisfied that person has habitually, persistently & without any reasonable ground instituted vexatious legal proceedings, can declare that person a vexatious litigant, (3) which means they must not commence/continue proceedings in SCV or inferior court or tribunal without leave of Supreme Court.

2. Dismissal for want of prosecution •

r 24.01: The Court may order that the proceeding be dismissed for want of prosecution where the plaintiff(a) fails to serve SOC within time limited; or (b) does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding; or (c) fails to file and serve notice of trial within the time allowed to P by the Court when fixing a date for trial of the proceeding under r 48.02(b).

3. Settlement Informal settlement

Negotiations # reach arrangement # settlement contract;

Make sure you put in settlement contract: -

Written, and get court to sign contract so it’s enforceable as a court order;


Effect a formal Discontinuance (see below);


Promise not to litigate again (as res judicata doesn’t apply);


Settlement value; and


How to pay costs (as per r 25.05, discontinuing party has to officially pay costs).

Formal offers to settle

‘Without prejudice’ communications inadmissible as evidence.


‘Calderbank offers’ are a formal offer to settle the case + a warning that this offer will be disclosed to the court in assessing costs (cf. ‘without prejudice’ offers). Eg “without prejudice save as to costs”. Resort to these is normally unnecessary, given O 26.

Offers of Compromise: o



Rationale espoused by Court of Appeal (NSW) in Maitland Hospital v Fisher (No 2): The objects of the rule include 1) to encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation, 2) to save public costs incurred in litigation, and 3) to indemnity the party who has made the reasonable offer of compromise against costs thereafter incurred;


Procedure: -

Step 1 Offer:


Party (P/D) may serve on the other an offer of compromise (r 26.02(1));


Serve in courtroom;


It shall be in writing and contain a statement that it is served in accordance with O 26 (r 26.02(3) (a),(b));


It may be served at any time before verdict or judgment (r 26.03(1)). Can be made during trial (Baxter v Mule);


A party can serve more than one (r 26.03(2));


It may be expressed to be limited as to the time the offer is open to be accepted after service, but not less than 14 days (r 26.03(3)). BUT it shall not be withdrawn during the time it is open, unless Court otherwise orders (r 26.03(5)). IE second offer does not withdraw first offer until time expires (Baxter v Mule);


It’s an offer of compromise made without prejudice, unless otherwise provides (r 26.04). IE no mention of it made until all questions of liability and relief to be granted have been determined (r 26.05). So DO NOT FILE in court.


Step 2 Acceptance:


A party on whom an offer of compromise is served shall within 3 days after service serve a written acknowledgement of service on the party serving the offer (r 26.03(3.1));


If the party on whom an offer is served wants to accept the offer, they serve notice of acceptance in writing before (a) the expiration of the time specified or, if no time specified, within 14 days, or (b) verdict or judgment- whichever event is sooner (r 26.03(4)). Can still accept even if during that period that party makes an offer of compromise (r 26.03(6));


Upon acceptance of an offer of compromise, D shall pay the costs of P in respect of the claim up to and including the day the offer was served, unless the Court otherwise orders (r 26.03(7)). Any term in offer that purports to negative or limit this shall be of no effect (r 26.03(8));


If offer provides for payment of money to P, it shall be paid within 14 days unless otherwise specified (r 26.03.1).



Step 3 Enforcement:


Where a party to an accepted offer of compromise fails to comply with terms, then, unless for special cause the Court shall otherwise order, the other party shall be entitled, as that party may elect, to (a) judgment in the terms of the accepted offer; or (b) judgment (if P, by dismissing proceeding, or if D by striking out defence) (r 26.07(1)).


Failure to accept: -



r 26.08(2): If P’s offer is rejected, and P gets judgment ≥ amount offered, then: (a)

If claim concerns death or bodily injury, P gets costs taxed on an indemnity basis33; OR


Otherwise, P gets costs up to and including day of offer on party and party basis34 and thereafter on an indemnity basis.




r 26.08(3): If D’s offer is rejected, and P gets judgment ≤ amount offered, then: (a)

D pays P’s costs on party/party basis up to the day the offer was served; AND


P pays D’s costs after that date on party/party basis.




(2) and (3) shall not apply unless Court is satisfied that the party serving the offer of compromise was at all material times willing and able to carry out the party’s part of what was proposed in the offer (r 26.08(7)).


Multiple defendants Where Ds are jointly or jointly and severally liable P may only offer to settle with all, and a D may offer to settle the action against all (and where offer is made by 2 or more Ds, the Ds are jointly or jointly and severally liable to P for the whole amount of the offer). Offers which do not comply with these conditions do not attract cost penalties if not accepted (r 26.09).

4. Abandonment Informal


INDEMNITY COSTS: All costs incurred except insofar as they are of unreasonable amount or have been

unreasonably incurred (r 63.30.1). 34

PARTY AND PARTY COSTS: All costs necessary or proper for the attainment of justice or for enforcing or

defending the rights of the party whose costs are being taxed (r 63.29). Also SOLICITOR AND CLIENT COSTS: All costs reasonably incurred and of reasonable amount (r 63.30).


P and D just do nothing.


Formal ending;

r 25.02: Plaintiff may discontinue: -

(2) A proceeding or withdraw any part of it (a) before the close of pleadings; OR (b) at any time, by leave of the Court or with the consent of all other parties; or


(4) A defence to counterclaim.35

Defendant may discontinue: -

(3) A counterclaim or withdraw any part of it (a) before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties to the counterclaim; or


(4) A defence53; or


(6) A claim made against a third party by the third party notice or any part of it by leave of the Court or consent of the third party.


Party who discontinues has to pay everyone’s costs up until point of discontinuance (r 25.05).

r 25.02(5): Cannot withdraw an admission or any other matter operating for the benefit of another party

without the consent of that party or the leave of the Court.


TOPIC 13: Trial Setting down for trial •

Procedure (Practice Note 1 of 1996): 1.


1st directions hearing o

Given 42 days after 1st appearance;


Given on the papers (no need to attend).


2 directions hearing o

Attendance required;


10-11 months from 1st appearance;


Per Practice Note 4 of 2006, when ready for trial the lawyers for the parties inform the master or judge. The matter is then referred to the Listing Master who allocates the date of this directions hearing, within the following 2-4 weeks;


This is where trial date is fixed;


Prerequisites include mediation (Note 4) AND that P has filed and served a notice of trial (r 48.02). Notice of trial shall be in Form 48A (or if the Court so orders, Form 48B; r 48.03). Includes info such as estimated length of trial and that everyone is ready on 2 weeks notice. Signed by P, D and any third parties. O 48 applies to a proceeding commenced by writ or originating motion (r 48.01(1)), but does not apply to proceedings in specialist lists (per (2));



Trial fees must be paid to Court before trial;


Case is then set down to trial.

Trial o

If parties not ready, will be hit with costs (order for ‘costs thrown away’);


Trials are to stop at the expiry of the estimated time for trial, to resume at a later date. Costs orders may deal with the consequent costs thrown away.

Default: If P does not within a reasonable time after commencement of proceeding file and serve notice of trial or apply to have a date fixed for trial, D may file and serve notice or apply to the Court under r 24.01 to dismiss the proceeding for want of prosecution (r 48.04).

Mode of trial •

Generally, civil proceedings are tried by judge alone (r 47.02(2));


The Court otherwise orders (r 47.02(2));


OR Proceeding is commenced by writ, and founded on contract or tort, and (a) P in the writ, or D by notice in writing to P and Prothonotary within 10 days of appearance, signifies their desire to have proceeding so tried, and (b) pays proper jury fees (r 47.02(1)). The Court can override their choice if in its opinion the proceeding should not in all the circumstances be tried before a jury (r 47.02(3)).

Trial with a jury shall be with a jury of six (r 47.02(4)).

Order of Evidence and Addresses •

Order: o

Who begins? The party who bears the burden of proof, usually P (r 49.01(2)(a) – subject to any directions of the Court per r 49.01(1));


The party who begins (P) opens with an opening address = narrative of the case (r 49.01(4));


P then calls evidence;


P’s evidence is cross-examined by D, and then re-examined by P;


D can then open and call evidence – cross-examined and re-examined;


Who closes last? Usually P (r 49.01(6)), but if D calls no evidence nor tenders anything in crossexamination he gets the benefit of closing address last (r 49.01(5)). Closing = argument for outcome based on evidence or inferences to be drawn from evidence.

Where there are multiple Ps or Ds, usually follow order on the record (eg how listed on writ, Merrett v Merrett [1933] VLR 177), unless court otherwise orders (per r 49.01(1)).

Verdict and judgment •

Distinction between verdict and judgment: Verdict = conclusion reached on matters of fact; Judgment = conclusions reached on matters of law and orders made.

Jury’s conclusion is called the verdict, whereas judge makes a judgment (note: if just a judge, call it all a judgment).

Judgment pronounced when it is delivered;

Judgment generally takes effect from its pronouncement;

Judgments and Orders must be formally authenticated after the Court has delivered judgment as condition of enforcement or appeal (r60.01). Judgment authenticated when embodied in a formal, sealed record and recorded in court’s records.


TOPIC 14: Costs General rule Costs

What is meant by “costs”? “Costs of litigation” = the amount of costs in a legal proceeding which the court orders one party to


pay another; CF. “Solicitor and own client costs” = actual, real costs => how much the client has to pay for


representation. Two parts: services/professional costs (what solicitor charges for doing the work; can charge by time or by scale) and disbursement (costs paid on behalf of client; eg photocopying, barrister, experts, company searches, court fees etc); “Costs of litigation” is only a fraction of “solicitor and own client costs”. This discrepancy


discourages litigation, because even if the party wins and gets costs they’ll still be out of pocket.

General rule

The Court has discretion as to costs and has full power to determine by whom and to what extent the costs are to be paid (s 24 Supreme Court Act). This power and discretion shall be exercised subject to and in accordance with Order 63 (r 63.02).

The Court has general discretion to order whatever it sees appropriate in the interests of justice (s 28 / 29 Civil Procedure Act 2010), and to take failure to comply into account in doing so (s 46 Civil Procedure Act 2010).

Q1: Who is entitled to costs? •

Subject to these Rules or court order, a party shall not be entitled to recover any costs of the proceeding from any other party (r 63.13).

Special rules that entitle one party to costs: o

Where one party applies for an extension of time (eg to serve and file pleading) that party shall pay the costs of and occasioned by the application [of both parties] (r 63.14);



A party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom that relates, up to the time of discontinuance or withdrawal (r 63.15);


Non-acceptance of offer of compromise – costs determined according to r 26.08 (r 63.16);


A party who fails to make discovery or answer interrogatories shall pay the costs of the notice served in accordance with r 29.12.1 or r 30.09.1 (r 63.16.1);


A party who amends a pleading shall pay the costs of and occasioned by the amendment (r 63.17);


When P gets default judgment, they also get judgment for costs (r 21.03).

If no special rule, have to get court order: o

How does the judge exercise their discretion?


Costs indemnity rule: successful party recovers costs from unsuccessful party (“costs follow the event”);


Practice, not in the rules;


Exceptions: Remember the court has “an absolute and unfettered discretion to award or not award costs [to a successful party]…the judge ought not to exercise his discretion against the successful party except for some reason connected with the case” (Gobbo J in Byrns v Davie). 1.

Misconduct of one party !

Eg Verna Trading: the defendant insurance company forced P to sue because they refused to tell him why they wouldn’t pay P’s claim (misconduct). D won at trial. Trial judge held that D should pay P’s costs up to and including day 1 of trial on SOLICITOR AND OWN CLIENT BASIS, and no order for costs re trial (as P should’ve settled once D told him their defence);


Court of Appeal upheld decision of trial judge, but said there needs to be a more compelling reason to deprive a successful D of their costs than a successful P, because D is always an unwilling party to the proceeding.


Party wins in wrong court !

Ie if P could have sued in a lower court;


r 63.24(1) (re County Court): a successful P is entitled only to the costs to which P would have been entitled if they had brought proceeding in CC, less an amount equal to the additional costs incurred by D by reason of proceeding having been brought in SC instead of CC;


Discretionary, so convince court there was good reason for suing in SC (eg complex case, difficult legal question, seeking remedy only available in SC).


Party ultimately wins but loses on some issues !

Eg if P sued D for 2 causes of action, but only succeeded on 1 (also for elements in action);


Options: a)

P gets costs, as winner overall; or

b) D pays costs of P’s successful cause of action, and P pays costs for unsuccessful CoA; or c)

Most common – percentage basis (eg we spent 4/10 days in trial on the successful cause of action, so P should get 40% of their costs).



Eg Byrns v Davie (SCV): P sued D and succeeded in matters that took up about 70% of the hearing time. However, they failed on a threshold matter and hence failed overall. Gobbo J said he would apportion costs according to issues. After doing this, the Ds could only recover 40% of their costs.


Public interest litigation !

Eg Tampa case: Litigation brought by solicitors acting bro bono on behalf of the detained rescuees on the MV Tampa. They lost. Cth Govt sought costs (from the rescuees, so in theory only, as no way they could pay costs);


Full Federal Court said the Cth should not receive its costs, despite being successful, because of the public interest nature of the litigation;


Per French & Beaumont JJ, “[Solicitors] have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.”


The existence of this exception was affirmed by a majority of the High Court in Oshlack.

Costs orders against lawyers

Courts may award costs against a party’s legal advisers;

r 63.23 – (1) Where a solicitor [or barrister, (7)] has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition36, the Court may order that (a) costs between solicitor and client be disallowed or solicitor repay client any money paid, (b) solicitor pay to client costs which the client has been ordered to pay to another party, or (c) solicitor pays all costs payable by any other party;

(2) A solicitor/barrister fails to act with reasonable competence and expedition for the purpose of para (1) where: any application in or trial of a proceeding cannot conveniently be heard or proceed, or fails or is adjourned without any useful progress being made, by reason of the failure of the solicitor to (a) attend, (b) file any doc, (c) lodge or deliver any doc, (d) be prepared with any proper evidence or account, or (e) otherwise proceed.

Q2: At what scale should costs be paid? •


“Scale” = different bases of taxation.

Need something akin to abuse of process (White v Flower (1998) 156 CLR 169) and merely accepting a

hopeless case is not of itself enough, unless using arguments/ litigation for an improper purpose (Levick v Deputy Commissioner of Taxation [2000] FCA 674). Reflects tension between wanting lawyers to freely take on clients without fear of costs, and not having them act irresponsibly and bring weak claims.


Three different scales: 1.

PARTY AND PARTY COSTS (r 63.29): all costs necessary and proper;


SOLICITOR AND CLIENT COSTS (r 63.30): all costs reasonably incurred; or


INDEMNITY COSTS (r 63.30.1): all costs except unreasonable ones.

IN GENERAL – r 63.31: Except as provided by these Rules or any order of the Court, costs shall be taxed on a PARTY AND PARTY BASIS;

BUT the Court can choose any basis it likes (r 63.28(d), eg court in Verna chose solicitor and own client).

Case study: Gunns

Bongiorno J had already struck out V1 and V2 of Gunns’ SOC. When V3 was struck out, the defendants asked him to award costs against Gunns on an indemnity basis (or at least solicitor and client basis);

Held (Bongiorno J, October 2006):


His Honour needed to find evidence of misconduct or unreasonable behaviour in relation to the SOCs (at 6). None here – they were flawed, P did not heed warnings given by Court when V2 was struck out, but it was still an improvement on V2 and therefore no evidence P had malicious or unreasonable intentions (at 7-8).

Case study: Mega-litigation

Seven Network v News Limited:

Facts: Concerned right to broadcast AFL on TV. 2 applicants in FCA (including Seven Network) against 22 respondents. Seven Network lost. The trial lasted for 120 hearing days, and Sackville J estimated the parties spent in the order of $200 million on legal costs;

All but 3 respondents had made agreements with SN on costs. Everyone agreed that SN should pay the costs of these respondents, but at what scale?

In 2005, the respondents made an offer of compromise to SN = $10 million + their costs up until that point (~$40 million). SN rejected offer and went to trial, because it was seeking $1.1 billion in damages. The respondents argued that penalties in o 26 should apply, but since r 26.08 only applies where P wins, it’s discretionary;

Policy: Two seemingly irreconcilable objectives: 1) Protecting access to justice by only exposing an unsuccessful litigant to an order for costs on a party and party basis. IE P can take risk they might lose, as cheaper; and 2) Relieving a successful litigant from the burden of costs which that litigant should not have been required to bear.

His Honour says in meta-litigation he prefers INDEMNITY COSTS over party and party costs. He’s trying to encourage settlement because it uses all these court resources. He says (at 10): “In my view, the expenditure


of $200 million (and counting) on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous.” •

However, he makes an order for PARTY AND PARTY COSTS. Why? He said the respondent’s only objection was that the offer of compromise had been unreasonably refused. He said it wasn’t that unreasonable. He suggested that if the respondents had run their argument a different way, he might have given them indemnity costs (see [81] – ie that SN’s case was too broad, unrefined and unfocused and so unreasonable).

Special cases Interlocutory procedures

Who pays for the interlocutory proceeding?

Some possible orders AFTER INTERLOCUTORY PROCEEDING include: o

Costs are reserved: Question of costs of interlocutory proceedings is deferred until after trial;


No order as to costs: Each party bears own costs of hearing;


Costs in the cause (also known as ‘Costs in the application are costs of the proceeding’): Costs are to be borne by the party that ultimately loses the action. Alternative is ‘Costs are P/D’s costs in the cause’, which means the named party will get the costs of this hearing if they get costs at trial (if they don’t get costs at trial, each party pays their own interlocutory costs); Costs in any event: Winner of the application gets the costs of the application, regardless of who gets


costs at trial; Costs thrown away: Costs wasted because steps already taken became pointless to be borne by the


party that caused them to become pointless; or If order is silent as to costs: Presumptions operate – losing party pays winning party’s costs (costs


indemnity rule).

If AFTER TRIAL the judge orders Costs of the proceeding, it includes costs of trial + costs of interlocutory applications, unless specific cost order along the way (cf. Costs of trial, which include only the costs of trial).


What if P is successful in claim and D is successful in counterclaim?

Options: a)

Judge could treat actions as separate (percentage basis – allocate costs according to how long each separate action took); or

b) •

Most common – overall winner gets costs (eg if claim > counterclaim, then P gets costs).

Discretionary, so can argue why court should deviate.


Multiple defendants

P vs 2 Ds: P wins against D1, but loses against D2;

Two questions: 1.

Will the Court make a multiple party order? o

Should the Court treat them as 2 separate actions (ie P v D1, where D1 pays P’s costs; and P v D2, where P pays D2’s costs)?


OR Make a multiple party order (where losing D pays everyone’s costs)?


GENERAL RULE: 2 separate actions;


UNLESS multiple party order is fairer. Court will consider: Was it reasonable for P to have joined these Ds? Why did they do it? How related were the causes of action? How did the various parties behave in terms of trying to sort out who was to blame?


Eg if neither Ds cooperated and told P who was to blame, then P has no choice but to sue both. Or, as in Vucadinovic, where P thinks each D might be partly responsible.


If so, what type of order will be made? o

Losing D pays winning P and D’s costs;


For losing D paying winning D:


Bullock order: P pays winning D’s costs, and then gets reimbursed by losing D;


OR Sanderson order: Losing D pays winning D’s costs directly;


DEFAULT: Sanderson order;


Generally makes no difference, except where one party is insolvent (eg if D1 is broke, then under Sanderson order D2 won’t recover costs, cf. Bullock order). In these circumstances, Court may grant a Bullock order to favour the winning D (see Vucadinovic);


Eg Vucadinovic v Lombardi: V was a passenger in L’s taxi, which crashed into Meyers’ truck. V sued L and M for personal injuries. Jury found L 100% to blame, and V was awarded $7,500 in damages. L only had $4,000 from insurance. Costs? V wants Sanderson order; M wants Bullock order. Pape J preferred M and gave Bullock order. Why? V had other options, namely to settle with L, so M should get costs so far as possible (V took the risk, and now has to bear loss).

Q3: What is the Quantum of costs? •

r 63.03(2): Costs should be paid forthwith;

How do you know amount?

Generally, trial judge does not specify an amount;

Instead, parties meet outside court and agree on the amount;

What happens if they can’t agree? o

Matter goes to Costs Court;



Initiated by summons filed with Taxing Master’s Associate or the Prothonotary (r 63.38(1), in Form 63A, (3); along with a copy of the order or judgment, (2); and serve, (4));


Also file and serve a bill of costs in specific form (rr 63.39, 63.40). This bill of costs lists, in chronological order, every single task done by solicitors with a price tag;


Other side can object to either the task or the price;


If the parties still can’t agree, then appear before the Taxing Master/ Associate Judge. Have to justify every single entry;


Court finds a figure, and the other side then has to pay that forthwith.


TOPIC 15: Enforcement •

Parties at this stage referred to as the judgment creditor (winner) and the judgment debtor (loser).

Judgments are not self-executing; if the JD doesn’t do what is ordered, the successful party must take steps to enforce the judgment.

Incentives are provided for JD to pay amount of the judgment: (a) interest accrues at a rate far higher than ordinary commercial rates (b) JD liable for any enforcement costs (c) property sold to enforce a judgment debt usually realises a price less than market value.

Judgment creditor has 15 years to enforce the judgment (Limitation of Actions Act s 5(4).

Modes of Enforcement: Generally most modes of enforcement are available to any JC; although some more suited to money judgments than to orders that a party do some act. Best mode usually depends on the JD. Examples: •

Warrant of Seizure and Sale (selling the debtor’s property to recover the debt).


The JC applies without notice to the prothonotary using form 68A.


The JC pays the fees, and prothonotorary forwards a sealed copy to Sherriff for execution.


The court then directs the Sherriff to seize and sell property to satisfy the judgment debt.


Warrant is valid for 1 year and may be extended for 1 year; states to what value assets can be seized.


Sherriff cannot force entry; but JD’s failure to grant access constitutes contempt.


Sherriff does not have to physically remove goods – sufficient to post a notice stating that goods have been seized – and can sell them in situ.


The Sherriff can seize real and personal property, money, and bills of exchange but: JD has protection over basic possessions (Supreme Court Act s 42).


Interpleaders: When other parties claim ownership of seized goods – e.g. hire purchase agreements – the person claiming interest must file a notice with the Sherriff


(Supreme Court Rules r 12.03). If the JC disputes the claim, the Sherriff applies to the court for a determination as to whose property it is (Supreme Court Rules 12.07). -

Seized goods / property are sold at auction first; private sale only if auction fails to attract adequate bids. ‘Moveable property’ must be sold before real property.

Attachment of Debts.


A JC may collect from people who owe the JD money (‘by-passing’ the JD).


The debt must be owing and accrued – can’t attach to future debts.


JC applies on summons with affadavits and notice.


Court grants the order which is served on the non-party.

Warrant of Possession.

Changing Order.

Appointment of Receiver.

Bankruptcy / Winding Up proceedings.

Attachment of Earnings.

Instalment Order (Judgment Debt Recovery Act 1984).


Can be sought by the JC or JD at any time. If granted, operates as a stay of other enforcement measures.


Success hinges on: (a) reasonableness of the payment period (b) JD’s genuine ability to pay the instalments.


The Court has the power to imprison the JD for up to 40 days if there is; (a) persistent wilful default in making payments (b) without an honest and reasonable excuse (Judgment Debt Recovery Act 1984 s 19).


All procedures for using the JDRA are set out in the Supreme Court Rules o 61.

Punishments for refusal to comply is usually contempt or sequestration. Gathering Information to Enforce Judgment: •

O 67 – procedures are available to JC to find out about JD’s assets.

Oral examination: JD attends court to be examined and produce documents about any property capable of satisfying the debt. Any oral examination order must be personally served.

Stays: •

JD may apply for a stay of execution of the judgment (standard = 30 days).

Usually application made immediately after judgment.

If granted, JC cannot enforce judgment until expiry of the period.


Granting of stays is discretionary; short stays are often granted after monetary orders, but a stay is less frequently granted ‘pending appeal’, and is not automatic (Supreme Court Rules r 64.25).

However: a successful plaintiff is ‘entitled to the fruits of its judgment’ (Annot v Lyle).

A stay is the exception, and a party seeking a stay must show special circumstances.


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