Civil Procedure - Exam Notes (Victoria, Australia)

Civil Procedure – Exam Notes LAW5104

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1) INTRODUCTION ............................................................................................................ 4 Overview of Court Adjudication under Adversarial System................................................................4 the courts.......................................................................................................................................... 5 JUDICIAL ROLE AND CASE MANAGEMENT.......................................................................................................... 5 COSTS..................................................................................................................................................... 6 Case Study: Gunns Lt vs. Marr & Ors.............................................................................................................. 6 McLibel Case................................................................................................................................................... 8

Challenging Case Management Decisions on Appeal.........................................................................8 2) ALTERNATIVE DISPUTE RESOLUTION..............................................................................9 A) INTRODUCTION...................................................................................................................................... 9 B)

Growth of ADR................................................................................................................................... 9 MODELS OF ADR................................................................................................................................... 9 Determinative Processes................................................................................................................................ 9 Facilitative Processes.................................................................................................................................... 10

C)

ARBITRATION....................................................................................................................................... 11 MEDIATION......................................................................................................................................... 11 Issues with Mediation: power imbalances........................................................................................ 12 E) COURT-ANNEXED ADR......................................................................................................................... 12 Supreme Court:................................................................................................................................ 12 County Court: .................................................................................................................................. 13 Magistrates’ Court: ......................................................................................................................... 14 F) LAWYERS & ADR................................................................................................................................ 14 D)

3) JURISDICTION.............................................................................................................. 14 INTRODUCTION......................................................................................................................................... 14

SUBJECT MATTER JURISDICTION................................................................................................................... 16 TERRITORIAL JURISDICTION......................................................................................................................... 22 Areas of jurisdiction......................................................................................................................... 22 Territorial Jurisdiction....................................................................................................................... 22 FORUM NON CONVENIENS (OVERLAP BETWEEN COUNTRIES)............................................................................23 CROSS-VESTING OF JURISIDCTION (MOVING FROM STATE TO STATE, STATE TO FED, FED TO STATE)..........................25 1.Vesting/Conferral of JURISDICTION................................................................................................ 26 2.Transfer of proceedings................................................................................................................ 26 4) INSTITUTING PROCEEDINGS.........................................................................................30 A)

CLIENT MANAGEMENT........................................................................................................................... 30 LETTERS OF DEMAND: PLAINTIFF............................................................................................................. 31 C) STANDING: PLAINTIFF............................................................................................................................ 32 CAPACITY: BOTH PARTIES.......................................................................................................................... 34 B)

Description of proceedings brought by a litigation guardian......................................................................... 35 Description of proceedings brought by a partnership................................................................................... 36 OVERARCHING OBLIGATIONS (CIVIL PROCEDURE ACT

2010)..............................................................................36 ORIGINATING PROCESS.............................................................................................................................. 38 General re Originating Process........................................................................................................ 38 Writ.................................................................................................................................................. 38 Originating Motion........................................................................................................................... 41 Failure to Comply............................................................................................................................. 41 CAUSES OF ACTION & LIMITATION OF ACTIONS...............................................................................................42 Third Parties................................................................................................................................................. 60

AMENDMENT, ADDITION, SUBTRACT, REMOVE AFTER WRIT IS FILED.....................................................................63 Amendments: order 36.................................................................................................................... 63 Addition, substitution and removal: order 9.....................................................................................64 CONSOLIDATION....................................................................................................................................... 65 AMICUS CURIAE AND INTERVENERS.............................................................................................................. 65 interveners (Seeks to join the proceeding)......................................................................................65 2|Page

Amicus Curiae (friend of the court who is not a party).....................................................................66 6) REPRESENTATIVE PROCEEDINGS (GROUPS AS PARTIES)................................................68 ‘SAME INTEREST’ PROCEEDINGS................................................................................................................. 68 CLASS ACTIONS....................................................................................................................................... 71 Federal Court: Opt-Out Proceedings (federal Court Act Part IVA).....................................................71 Supreme Court ‘Opt Out’ Proceedings: same rules apply................................................................75 7) SERVICE ..................................................................................................................... 76 SPECIAL PARTIES...................................................................................................................................... 77 Corporations.................................................................................................................................... 77 Foreign Corporations....................................................................................................................... 77 Minors.............................................................................................................................................. 77 Handicapped Persons...................................................................................................................... 77 Commonwealth Government........................................................................................................... 77 Victorian Government...................................................................................................................... 77 Partnerships..................................................................................................................................... 77 Motor Vehicle Injuries..................................................................................................................... 78 PERSONAL SERVICE.................................................................................................................................. 78 ORDINARY SERVICE.................................................................................................................................. 80 SUBSTITUTED SERVICE........................................................................................................................ 81 PROOF OF SERVICE................................................................................................................................... 82 SERVICE OUT OF THE JURISDICTION.................................................................................................... 83 8) APPEARANCE.............................................................................................................. 85 INTRODUCTION TO APPEARANCE.................................................................................................................. 85 DEFENDANT’S OPTIONS AFTER BEING SERVED...................................................................................86 Do Nothing....................................................................................................................................... 87 Unconditional appearance............................................................................................................... 87 Conditional Appearance................................................................................................................... 87 9) PLEADINGS................................................................................................................. 89 INTRO CRAP............................................................................................................................................ 89 PROCEDURE............................................................................................................................................ 90 FORMAL REQUIREMENTS AND CONTENT......................................................................................................... 90 PARTICULARS.......................................................................................................................................... 91 SPECIFIC TYPES OF PLEADINGS.................................................................................................................... 92 Statement of claim.......................................................................................................................... 92 Defence........................................................................................................................................... 93 Set-off & Counterclaim..................................................................................................................... 95 reply................................................................................................................................................ 96 Pleadings after the reply.................................................................................................................. 96 CHALLENGES AND OBJECTIONS.................................................................................................................... 96 AMENDMENT........................................................................................................................................... 97 ETHICAL OBLIGATIONS (ONLY IF RELEVANT ON EXAM).......................................................................................98 10) METHODS OF GATHERING EVIDENCE.........................................................................101 DISCOVERY........................................................................................................................................... 101 Intro crap....................................................................................................................................... 101 notice for discovery....................................................................................................................... 102 affidavit of documents – making discovery....................................................................................102 inspection of documents................................................................................................................ 107 Default in Discovery....................................................................................................................... 108 Document destruction................................................................................................................... 108 NON-PARTY AND PRELIMINARY DISCOVERY.................................................................................................. 110 Discovery to Identify a Defendant.................................................................................................. 110

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discovery of a Prospective Defendant............................................................................................ 110 discovery From a non-party........................................................................................................... 111 INTERROGATORIES, NOTICES TO ADMIT, SUBPOENAS......................................................................................112 Interrogatories............................................................................................................................... 112 Notices to admit............................................................................................................................ 114 Subpoenas..................................................................................................................................... 116 11) INTERLOCUTORY PROCEDURE...................................................................................118 INTRO CRAP.......................................................................................................................................... 118 INJUNCTIONS......................................................................................................................................... 120 SEARCH ORDERS (‘ANTON PILLER’ ORDERS)...............................................................................................121 FREEZING ORDERS (‘MAREVA INJUNCTIONS’)............................................................................................... 122 SECURITY FOR COSTS (LOOK FOR POSSIBLE P INSOLVENCY)............................................................................124 12A) DISPOSITION WITHOUT TRIAL................................................................................126 SUMMARY DISPOSITION........................................................................................................................... 126 Default Judgment........................................................................................................................... 126 Summary Judgment....................................................................................................................... 128 DISMISSAL FOR WANT OF PROSECUTION: INHERENT JURISDICTION.....................................................................132 DISCONTINUANCE AND WITHDRAWAL.......................................................................................................... 134 VEXATIOUS LITIGANT.............................................................................................................................. 135 12B) FACILITATING SETTLEMENT....................................................................................136 INFORMAL SETTLEMENT........................................................................................................................... 136 FORMAL SETTLEMENT: OFFERS OF COMPROMISE...........................................................................................136 13) TRIAL ..................................................................................................................... 139 TRIAL................................................................................................................................................... 139 Case Management Timeline........................................................................................................... 141 14) COSTS.................................................................................................................... 143 INTRODUCTION...................................................................................................................................... 143 TYPES OF COSTS & THE COST INDEMNITY RULE............................................................................................ 145 Exceptions to the Costs Indemnity Rules.......................................................................................147 COSTS ORDERS AGAINST LAWYERS............................................................................................................ 150 COSTS FOR INTERLOCUTORY HEARINGS AND SATELLITE LITIGATION...................................................................151 MULTIPLE PARTY COST ORDERS................................................................................................................. 151 P succeeds on claim, D succeeds on counterclaim........................................................................151 Where claim succeeds against one D and fails against another....................................................153 QUANTUM OF COSTS.............................................................................................................................. 154 15) ENFORCEMENT........................................................................................................ 155 GENERAL INFO ON ENFORCY.................................................................................................................... 155 STAY OF ENFORCEMENT........................................................................................................................... 156 MODES OF ENFORCEMENT....................................................................................................................... 156

1) INTRODUCTION OVERVIEW OF COURT ADJUDICATION UNDER ADVERSARIAL SYSTEM •

Civil system still predominantly based upon the adversarial system o

•

Increasing interest in alternative dispute resolution – excessive delays and costs

Procedural Law governs conduct of proceedings before the court

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o

Rules which regulate formal adjudication of civil disputes

INTERDEPENDENCE OF SUBSTANCE AND PROCEDURE •

‘Adjectival’ – qualify substantive rights o

Regulate the way substantive rights and obligations are claimed

•

Subjection to substantive law is involuntary whereas recourse to procedural is voluntary

•

Substantive law is self-executing, whereas procedural law creates choices for parties

THE COURTS •

Each superior (Supreme) Court is intermediate appeal court & body primarily entrusted with supervision of state/territory law - Have General Jurisdiction

•

Most cases are not heard in front of a court o

Majority of cases that make it to court are abandoned, withdrawn or settlement (1.2.2E)

JUDICIAL ROLE AND CASE MANAGEMENT •

Parties are left to conduct proceeding; judges assume a passive role, intervening only if the nondelinquent party seeks the imposition of sanctions. o

•

•

Judicial neutrality is critical to adversarial model; methodology about ascertainment of truth

Case Management (Caseflow and caseload) o

Early resolution of disputes

o

Enhanced public accountability

o

Monitoring of caseloads

o

Reduction of trial time etc. (1.9.2E)

Court involved in management of the progress of proceeding from commencement to conclusion o

Shift away from adversarial model

KEY EXAMPLE: THE LIST SYSTEM •

Division of court workload (cases) into ‘lists’ (groups) overseen by a particular judge/’associate judge’ o

Commercial List – intensively case managed

o

Major torts – Associate judge manages interlocutory stages until case is ready for trial (handed to civil list)

o

Specialty lists: Admiralty, building, corporations, IP, planning, tax appeals 

•

Varying degrees of case management

Costs fee to join the lists (approx $2500) but save this in terms of the delays which are avoided

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•

All civil cases are part of the ‘Civil Management List’

•

Directions Hearing: No clients; just legal reps – master/associate judge makes a decision, get case to move forward

COSTS •

•

Sum of money party may recover from the other side of reimbursement of particular expenses incurred in litigation o Money that a party may recover from opponent in litigation for reimbursement of particular expenses incurred in litigation Costs indemnify a party for the cost of litigation o reasonable and necessary expenses o discipline parties and encourage/promote settlement Promoting settlement may ‘hurt’ justice because you could lose regardless of how good your case is.  Can discipline parties to behave, or punish them for ‘misbehaving’ Weeds out & avoids weak litigation (prevents crap – vexatious, frivolous lawsuits). But can undermine access to justice. Never get awarded more than 2/3 legal costs. 

o o

LITIGATION COST RULES •

Disciplinary cost orders – cost orders used by a tribunal/court to enforce control of litigation process

•

Allow court to enforce its control of the litigation process.

•

Allows efficient use of resources in courts. Courts can deal with o

Unnecessary or unduly expensive procedures

o

Claims/defences that are unreasonable/frivolous/vexatious

o

Matters argued in wrong jurisdiction/ wrong forum for dispute resolution

CASE STUDY: GUNNS LT VS. MARR & ORS •

Applied to build new pulp mill at the same they commenced legal proceedings o

Sued 20 Defendants in the Victorian Supreme Court including 

•

Wilderness Society (Alex Maher), Doctors for Native Forests, Senator Bob Brown

Statement of Claim – to notify other party why they are being sued o

216 pages long – excessive: 200 pages of ‘reasons’ for which they were suing individual defendants.

o

Was not clear what they were suing for, but it appeared to boil down to the defendants being involved in ‘a conspiracy to injure them’ and interfered with ‘Gunns trade by unlawful means’

o

Claimed they suffered general damage $1.1m damages

and $5.2m in aggravated/exemplary

‘LAW REPORT’ INTERVIEW WITH SENATOR BOB BROWN

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Question: Now Gunns is alleging that you and the other members of Greens engaged in a number of activities, corporate vilification, interference with contracts, disruption of logging and woodchip operations, campaigns against shareholders, investors and banks. Let’s talk about where you draw the line between legitimate civil disobedience, and what constitutes damage to lawful, economical commercial activity. They’re saying you’ve done things like conduct campaigns to convince clients of Gunns in Japan and Belgium to boycott their products. Answer: Yes, well, there’s a long history of boycott against destructive activities, very often for human rights reasons. We were, in Australia, in turmoil 20 or 30 yrs ago about boycotting South Africa because of apartheid, and of course many people think we should be much more judicious in looking at boycotts of China because of what’s happening in Tibet, and so on it goes. But the legitimate rights of people everywhere on this planet to stand up for what they think is wrong can’t be taken away if you’re going to have a healthy democracy. And the woodchipping industry in Tasmania, which at its worst, the rate of destruction now is the greatest in history; this year approx 150,000 log truck loads will go to the woodchip mills for export to Japan, China, Korea and the great majority of that is through this ugly company called Gunns Pty Ltd. And I say ‘ugly’ there because Mr Gay might think that’s vilification, but you only have to look at what’s happening to the magnificent forests of Tasmania and the wildlife after the loggers for Gunns have been through, and you see total devastation: just rising smoke, no life, no fin, no feather, nothing left alive. And its unnecessary industry, this is. •

Legitimate action? Or doing it to bankrupt companies opposing Gunns o

Unclear/difficult document

o

Trying to bankrupt the company 

•

o

Tie them up in litigation

o

Intimidate so that people don’t take similar action

SLAPP Writ - Strategic Litigation Against Public Participation o

•

Julian Burnside: This statement of claim is the size of a novel, although it doesn't read so well. This trial will not take less than a year. Gunns acting "to warn off individuals who might want to protest’

2nd Version of Statement of Claim o

•

Defendants extremely worried about the excessive costs

360 pages long and more convoluted than the first one

Bongiorno J struck them both out. Gave them 4 weeks to come up with a new one o

3rd version – 221 pages long - struck out again

o

Gave them time to do a 4th one – improved version: 3 separate statements of claim (3 proceedings)

o

Dropped number of defendants – 3 claims relations 

and 15 defendants – interference with K

Gunns v Maher – ‘Triabunna’ – against 7 D, 44 pages



‘Lucastown Hampshire’ and ‘Styx’ – against 3 D, 79 pages long



‘Burnie Woodchip Pile’ – defamation; against doctor (woodchip pile- poss of legionnaires)

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•

ACT enacted Australia’s first anti-SLAPP legislation in response to such cases

•

How much should we be willing to sacrifice the courts (justice system) for long drawn-out cases?

MCLIBEL CASE •

McDonalds bought against a postman and gardener o

•

Were standing outside a McDonalds, handing out pamphlets

Britain’s longest ever trial – 2 ½ years in court o

Huge action – McDonalds won but got $34,000 and over $10m in costs

o

Did it to stop people protesting against their business

•

Was a huge PR disaster – SuperSize Me & huge backlash

•

Evidence i.e. Recipe for the process of chicken nuggets (‘McFrankenstein’s Monsters)

CRISIS? WHAT CRISIS? •

Mid 1980s: Procedural matters considered lower concern than doing ‘justice on the merits’.

•

Resulted in: o large delays in courts; and o high cost of litigation o Led to rise in case management • Need to strike a balance between the pursuit of justice/truth and efficient distribution of justice. State provides a legal/justice service. Inefficient if every case is vehemently pursued. Must be done so to be proportional with money involved, importance, public interest etc. LORD WOOLF MR: •

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

•

Woolf o o o o o o o o

on what system needs: 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 deal with cases with reasonable speed be understandable to those who use it be responsive to the needs of those who use it provide as much certainty as the nature of the particular case allows, and be effective, adequately resourced and organised so as to give effect to 1-7.

CHALLENGING CASE MANAGEMENT DECISIONS ON APPEAL •

•

Sali v SPC Ltd (1993): the HC said that the FC was entitled to regard the appellant’s application as mere delaying tactics and so there was no warrant for granting any adjournment. Thus, the judge is entitled to consider the effect of an adjournment upon court resources and the competing claims by litigants in other cases awaiting hearing. Queensland v JL Holdings Pty Ltd (1997), more recently the HC has placed greater emphasis upon justice between the immediate parties to litigation when considering the efficacy of case management sanctions 8|Page

2) ALTERNATIVE DISPUTE RESOLUTION A) INTRODUCTION •

Need for methods other than litigation to resolve disputes o

•

•

Growth of mediation (and arbitration) in Australia

Litigation is dispute resolution where parties fight to regain lost territory/rights o

Strategies and tactics become predominant focus

o

Defensive and hostile methods

Litigation only deals with legal issues: Doesn’t look at broader conceptions of justice, etc.

GROWTH OF ADR •

Issues with accessibility and equity within the legal system o

Effect upon parties’ relationship due to adversarial processes and determination of a ‘winner’

o

Shortfalls in negotiated settlement – lawyers often don’t maximize client’s outcome

o

Risk, unpredictability, delay and costs

o

Courts concerned with legal rights rather than durable solutions to disputes

o

Parties’ relationships often irrevocably damaged

“Confucian thought holds that going to court is a failure: a failure by the parties in not having regulated their conduct between, a failure in not being able to resolve their differences themselves and in having to resort to a third party to adjudicate. Recourse to law is something shameful” – Gladwell CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 (VIC) S24(1) •

Everyone has right to have a dispute decided by a ‘competent, impartial court or tribunal after a fair and public hearing

B) MODELS OF ADR •

Arbitration, mediation, conciliation, facilitation and early neutral evaluation o

Hybrid processes as well: expert determination, private judging, fact-finding

DETERMINATIVE PROCESSES ENFORCEABLE ADJUDICATION •

Judicial/administrative process in which parties present arguments/evidence to DR practitioner o

Often within traditional judicial system – courts, tribunals

ARBITRATION •

Quasi-judicial; Less formal than litigation; Rules of evidence relaxed

•

Most commonly used in commercial, construction, labour and international trade disputes

•

Submission of dispute to third party (arbitrator)

•

Renders award after hearing arguments and reviewing evidence

•

Determination is usually binding – only reviewable on limited grounds

•

No precedential effect

EXPERT DETERMINATION •

Independent expert appointed to make binding determination on some disputed facts/issues

•

Hears arguments and evidence from parties 9|Page

•

Chosen on basis of specialist qualification or experience in subject matter

•

Parties determine the process – often expert’s role includes investigation and inquiry

•

Expert Appraisal – very similar but opinion given is advisory rather than determinative

PRIVATE JUDGING •

Parties present arguments and evidence to private (usually retired) judge

•

Determination made based on what they believe would be most likely decision if matter went to court

•

Reasonably formal and adversarial

•

Decision is binding on parties – reviewable by court based on errors of law

NON ENFORCEABLE FACT-FINDING •

Parties to a dispute present arguments and evidence to DR practitioner

•

Makes determination as to facts but no finding or recommendations as to outcomes

EARLY NEUTRAL EVALUATION •

Process in which parties present arguments and evidence at early stage in dispute

•

Evaluator usually QC or SC

•

May then encourage parties to settle matter by consensus

•

If no settlement, evaluator will make determination on key issues in dispute & likely outcome if went to trial

FACILITATIVE PROCESSES CONCILIATION •

Assistance of conciliator identifies disputed issues, develops options/alternatives and endeavors to reach an agreement

•

Conciliator has advisory but not determinative role

•

Obliged to advocate rules and standards promoted by the agency – empowered to make suggestions as to terms of settlement, bearing in mind that conformity is important

FACILITATION •

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

•

Collaborative process – parties (group) with assistance of neutral third party

•

Facilitator identifies problems to be solved, tasks to be accomplished or issues to be resolved

•

No advisory or determinative role on content of matters discussed

MEDIATION •

Process of facilitated negotiation with assistance of neutral third party

•

Identifies issues, develops options, considers alternatives and endeavors to reach agreement

•

No advisory or determinative role and cannot impose decision or result on parties

•

Mediator is there to facilitate or assist parties to reach own agreement, but can determine how process will be conducted (structured/systematic process)

OMBUDSMEN

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•

Impartial third party who investigates complaints against an institution by its constituents, clients or employees.

•

Make take action i.e. bringing injustice to attention of higher level officials etc.

•

Advises complainant of all options and resources, propose settlement etc.

•

In Australia, all jurisdictions have position of ombudsman to investigate complaints against state agencies and officials.

C) ARBITRATION •

Has become a ‘quasi-judicial’ process

•

Less formal than litigation

•

Arbitrator hears arguments and evidence, renders a determination (award) binding upon parties

•

Bilateral adversarial process – requires consent of parties

FEATURES •

Can be conducted under court-annexed scheme, legislation or private agreement between parties

•

Courts: early resolution of disputes

•

Arbitration agreement: Non-interventionalist environment for business/commercial disputes

•

Required by statute: settlement of certain disputes

D) MEDIATION •

General process to mediation but schemes demonstrate marked variations in how process implemented o

•

Different opinions i.e. whether should meet with parties privately etc.

Flexible and private nature of mediation, different training/characteristics, range of disputes = Variation.

ACCESSIBILITY •

Any dispute can be referred to mediation AND parties are directly involved in process

•

Direct participation important part of process

•

o

However face-to-face mediation generally not available as part of industry-based ADR processes (i.e. mostly written processes etc.)

o

Extent of party participation is also affected by approach and imbalances, time limitations and presence of professional advisers (lawyers)

Not all cases appropriate for mediation o

When definitive/authoritative decision require for precedential value

o

Matter significantly affects persons or organizations who aren’t party to ADR processes

o

Need for public sanctioning of conduct or where repetitive violations of statutes and regulations need to be dealt with collectively/uniformly

o

Parties not able to negotiate effectively between themselves

o

History of family violence

VOLUNTARY •

In best-case scenario, this is key advantage of process

•

Consensual participation is fundamental assumption of mediation o

•

May be compelled, directed, recommended etc. – parties who are referred to ADR, don’t see process as consensual (In reality, most parties don’t enter purely voluntarily or feel free to leave)

Mandatory entry to mediation may disadvantage vulnerable groups being pressured

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•

Parties must be free to speak openly about their needs, interests and feelings

•

‘Reveal all relevant matters without an apprehension that the disclosure may be subsequently used against them’ o

•

Normally inadmissible in subsequent proceedings

Encourages frank and open discussion – atmosphere conducive to co-operative decision-making

FACILITATIVE •

Power imbalances between parties

•

Interest-based and problem-solving: identifying needs and interests, develop options, reach satisfactory agreement o

Both interventionalist and minimalist role by mediators have advantages/disadvantages

ISSUES WITH MEDIATION: POWER IMBALANCES POWER IMBALANCES BETWEEN PARTIES: APPROPRIATENESS AND EFFECTIVENESS OF MEDIATION? •

Danger that ‘consensual’ process will merely reflect power relationship between parties

•

Most important types of power (Mayer)

•

o

Formal Authority – formal position w/decision-making prerogatives i.e. judge, CEO, parent

o

Expert/Information power – expertise in area/information about matter

o

Associational/Referent power - association with other people with power

o

Resource power – control over resources (moneys, materials, g&s) or ability to deny them

o

Procedural power – Control over procedures by which decisions are made

o

Sanction power –Ability (or perceived) to inflict harm or interfere

o

Nuisance power – ability to cause discomfort to party (less than applying direct sanctions)

o

Habitual power – power of SQ, rests on premise that is easier to maintain than to change

o

Moral power – appeal to widely held values; and conviction that one is ‘right’

o

Personal power – attributes which magnify other sources of power i.e. self-assurance

Contexts of power imbalances (Boulle and Nesic) o

Gender-based differences (i.e. power in marriage, access to resources, perceptions of domination) – particularly in cases of domestic violence

o

Environmental disputes – conservation groups v developers, govt and businesses

o

Anti-discrimination cases – victims v perpetrators (ignorance of relevant standards)

o

Plaintiffs and insurers in personal injury cases

E) COURT-ANNEXED ADR •

Supreme Court Act 1989 (Vic), County Court Act 1958 (Vic) and Magistrates’ Court Act 1989 (Vic) provide for referral of civil matters to arbitration or mediation

SUPREME COURT: •

Court may refer matter to o

mediation with/without parties’ consent: R50.07 SCR

o

arbitration with parties’ consent: R50.08 SCR

o

Master can refer to mediation: 50.07.1

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50.07. REFERENCE TO A MEDIATOR (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. (2) Except so far as the Court otherwise orders, an order for reference to mediation shall not operate as a stay of the proceeding. (3) Where a reference is made under paragraph (1) the mediator shall endeavour to assist the parties to reach a settlement of the proceeding or settlement of that part of the proceeding referred to the mediator. (4) The mediator may and shall if so ordered report to the Court whether the mediation is finished. (5) The mediator shall not make any report to Court other than a report under paragraph (4). (6) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of anything said or done by any person at the mediation. (7) The agreement may be made at the mediation or later. (8) The Court may determine the remuneration of the mediator, and by what party or parties and in what proportion the remuneration is to be paid either in the first instance or finally. (9) The Court may order any party to give security for the remuneration of the mediator. (10) This Rule does not apply to the reference of a proceeding or any part of a proceeding to mediation by an Associate Judge under Rule 50.07.1. 50.07.1 MEDIATION BY ASSOCIATE JUDGE (MASTER) (1) Without limiting Rule 50.07(1), at any stage of a proceeding an Associate Judge may, with or without the consent of any party— (a) of his or her own motion; or (b) on the reference of a Judge of the Court— order that the proceeding or any part of the proceeding be mediated by the Associate Judge. (2) If an Associate Judge undertakes a mediation, the Associate Judge may give any direction with respect to the conduct of the mediation as the Associate Judge thinks fit. (3) Except so far as the Associate Judge otherwise orders, an order for mediation under this Rule shall not operate as a stay of the proceeding. (4) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of anything said or done by any person at the mediation. (5) An agreement referred to in paragraph (4) may be made at the mediation or later. 50.08. REFERENCE TO ARBITRATION (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. (2) An arbitration ordered under paragraph (1) shall be conducted in accordance with and subject to the provisions of the Commercial Arbitration Act 1984. (3) The Court may subject to the provisions of the Commercial Arbitration Act 1984 by order made under paragraph (1) or at any time— (a) give such directions and make such orders for the conduct of the arbitration as the parties may agree or as they might have agreed had the arbitration been made pursuant to an arbitration agreement; (b) make such orders as to the remuneration of the arbitrator and the giving of security for such remuneration as it thinks fit. COUNTY COURT: •

mediation can be ordered with/ without parties’ consent: S47A COUNTY COURT ACT

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•

Arbitration with consent R50.08 CCR

MAGISTRATES’ COURT: •

mediation w/without parties’ consent: S108

•

arbitration with parties’ consent: SS102-106

•

matter < $10,000 MUST go to arbitration: S102

F) LAWYERS & ADR Competent legal practice requires the ability to advise clients about a range of appropriate dispute resolution processes. Rather than marching down the well-worn path of escalating threats to litigate and inflated claims about possible trial outcomes, it is important for lawyers now to match disputes with appropriate dispute resolution methods. 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 •

ADR matters lawyers may be involved in o

Understanding/advising re appropriate ADR

o

Structuring particular DR process

o

Drafting ADR provisions for agreements etc.

3) JURISDICTION INTRODUCTION WHAT IS IT? • For P to bring his case, P must show that the court has SM and T jurisdiction EXAM • •

•

•

1) Leading Line – P must show the court has SM and T jurisdiction 2) SMJ (really quick!) o Describe the claim (tort, breach of K, statutory claim etc) o Which court is most likely to hear and why 3) TJ o D must be present within the J when proceedings are commenced o If not – D can submit to the jurisdiction or valid service 4) FNC o Test in Aus o Test in other jurisdictions o Apply Aus test and compare

CONTEXT • Injury occurred in NSW, P is from QLD, D is from Vic – where should the case be held? POLICY • Commencing in Wrong Jurisdiction Results in: o Court can strike out statement of claim o Delays for the case 14 | P a g e

o o

Costs penalty Possible loss of cause of action (statute of limitations)

OVERLAP BETWEEN JURISDICTIONS • Overlap o Where there is an overlap between jurisdictions, P can choose either FANCY QUOTES SO THE LECTURER THINKS YOU ARE SMART • Concept of J o The concept of jurisdiction is rooted in power of courts to enforce their judgments, and the “amenability of the defendant to the writ expressing the Sovereign’s command in right of the State of Victoria Dixon CJ in Laurie v Carroll • Inherent J of the Court o “…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.” Bongiorno J in Gunns Subject Matter Jurisdiction: Nature of disputes that may be adjudicated upon by particular court •

Events

•

Causes of Action

•

Source of Law

•

Outcome Sought

Territorial Jurisdiction: Person or bodies over whom court may exercise jurisdiction •

Geographical boundaries

•

Persons or things under the state rule

15 | P a g e

SUBJECT MATTER JURISDICTION WHAT IS IT? • Describe the nature of the dispute and which court will hear it EXAM •

Describe the Nature of the Claim o Who are the parties – P & D o What is the claim – tort, breach of K, statutory claim o Pick which court is best suited If proceedings have already commended, say whether this court is the right one o Be sure to consider the FC extensions under Accrued (whole matter) and Invested (statute) Jurisdiction Example o John (the plaintiff, P) is suing Mary (the defendant, D) for beach of the CCA (the new TPA) o Fed court hears matters involving federal legislation under its original jurisdiction S 19(1) FCA and therefore the FCA, and P, have SMJ 

•

WHICH COURT (STATE JURISDICTION) • VCAT o Acts Established in 1999 by the Victorian Civil and Administrative Tribunal Act 1998 (Vic)  Jurisdiction derives from legislation including: • Fair Trading Act 1999; • Residential Tenancies Act 1997; • Domestic Building Contracts Act 1995; • Equal Opportunity Act 1995; • Planning and Environment Act 1987; and • Guardianship and Administration Act 1986. Jurisdiction 

o

 



Determined by nature of dispute, rather than amount of dispute Civil Division: • Civil claims • Credit • Domestic building • Owners • Corporation • Real property • Residential • Tenancies • Retail Tenancies Administrative Division: • General • Land valuation 16 | P a g e



•

• Legal practice • Occupation and business regulation • Planning • Environment • Taxation Human Rights Division • Anti-discrimination • Guardianship • Health and privacy • Mental health

Magistrates Court o Acts o

 Magistrates Court Act 1989 Jurisdiction

o

Any claim for damages or equitable relief within jurisdictional limit (up to $100,000) S100  If claim is for $100,004 – can bring in the Mag court and abandon the $4 Excluded

o

Prerogative writs and equivalent admin law proceedings are excluded S100(2) Specialist Divisions





   

•

Children’s Court o Introduction

o

 Independent Court on the same level as the Mag Court  Cases heard by Magistrates Jurisdiction  

•

Koori – Aboriginal Ds Drug – Criminal jurisdiction for drug offences limited to certain geographical areas Family Violence – Criminal and civil jurisdiction (alleged family violence) limited to certain geographical areas Neighbourhood Justice Division – Criminal and civil J (homeless, Aboriginal, family violence or community relates issues) limited to certain geographical areas

Matters concerned children under 18 (criminal law) or 17 (family law) Divisions • Family • Criminal Koori • Neighborhood Justice

County Court o Acts o

 County Court Act 1958 Original Jurisdiction 

General Rule

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•

Applications, claims, disputes and civil proceedings, regardless of the type of relief sought, or the subject matter, that are not excluded by this or any other Act S37(1)(a)

o

Limit • No monetary limit • Previous limit of $200k abolished in 2007 in an amendment to the Courts Legislation (Jurisdiction) Act 2006 So What is the Jurisdiction?

o

All claims and proceedings over $100,000 Claims against municipal councils for loss/injury while using council roads, land or buildings S37(1)(b)  Criminal appeals from the Mag Court (appellate jurisdiction)  Other areas where jurisdiction conferred by statute (e.g. Admin & Probate Act, PLA, TLA, Adoption Act) CC or SC?



 

•



Lots of overlap since abolition of $200k limit • P can choose which court to bring

 

CC is cheaper and faster SC is more appropriate for complex cases • Listing ability increases expertise

Supreme Court o Intro o

 Original jurisdiction only – appellate jurisdiction goes to CoA Unlimited Jurisdiction

o

SC …shall be the superior court of Vic with unlimited jurisdiction Constitution Act (Vic) S85(1)  Unlimited jurisdiction in terms of subject matter (unless statute excludes) and money 3 Divisions (similar to lists)

o

   Lists





Commercial Court • Intensively managed



Major Torts List • Associate judge manages interlocutory stage until case is ready for trial and handed to the civil list Others • Admiralty; TEC; Corporations; IP; planning; tax; long cases • Varying degrees of case management. E.g. TEC has a resources conference early in proceedings



•

Commercial and Equity Division Common Law Division Criminal Law Division

Court of Appeal o Introduction 

Appeal division of the SC

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Established in 1995 under the Constitution (Court of Appeal) Act 1994  Made up of the SCV Chief Justice, a President and currently 11 judges of appeal Jurisdiction 

o

 

Appeals from SC or CC Questions of law from VCAT or Mag Court

WHICH COURT (FEDERAL JURISDICTION) • Introduction o Cwth Constitution Chapter III 

•

HCA o

Cwth • • •

judicial power can only be exercised by: S71 Const HCA A federal court created by federal statute A state/territory court invested with federal power

Original Jurisdiction S75 Const

o

Matters that: • i) arise under treaty • ii) affect representatives of other countries • iii) involve the Cwth as a party • iv) occur between states; between residents of different states; between a state and resident of another state • v) Involve a writ of mandamus/prohibition or injunction against an officer of the Commonwealth Additional Original Jurisdiction S76 Const / Exercised through Judiciary Act 1903 S30(a)  Parliament may make laws conferring original jurisdiction on the High Court in any matter: • (i) Arising under this Constitution or involving its interpretation • (ii) Arising under any laws made by the Parliament • (iii) of Admiralty and maritime jurisdiction • (iv) Relating to the same subject matter claimed under the laws of different States Exclusive Jurisdiction S38 Judiciary Act

o

HCA has jurisdiction over matters arising directly under any treaty and suits between States and the Cwth Appellate Jurisdiction



o







Jurisdiction • Appeals from all judgments, decrees, orders and sentences S73 Const o Of any justice/s exercising HCA original jurisdiction o Of any other federal court exercising federal jurisdiction or the Supreme Court of any state Interlocutory Judgment

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•



Leave of HC required to bring appeal for any interlocutory judgment S34 Judiciary Act Appeals from Single Judge of FC •



No appeal from single judge decision of the Federal Court except if judge was exercising appellate jurisdiction for appeal from Federal Magistrates Court s33 Federal Court Act 1976

Appeals from SCs Require Special Leave S35 Judiciary Act • Criteria for granting special leave: S35A Judiciary Act o … the High Court may have regard to any matters that it considers relevant but shall have regard to:  (a) whether proceedings involve a question of law: • (i) that is of public importance, whether because of its general application or otherwise; or • (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and  (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates

•

Such o o o

•

Federal Court o Introduction

Other Fed Courts as Parl Creates 1975 – Family Court 1976 – Federal Court 1999 – Fed Mag Court

Created by Federal Court of Australia Act 1976: in exercise of Cwth Parl – power conferred by s71 Const Original Jurisdiction 

o



Rule • •

Limited to matters in respect of which Parl has specifically invested the court with jurisdiction Under s19(1) of FCA Act and s77(i) Constitution

Jurisdiction • Per s19(1) Federal Court Act: has original jurisdiction in matters which the Commonwealth has specifically invested it with Invested Jurisdiction (Adds to Original) S77 Const 

o



Rule •

With respect to any of the matters mentioned in the last two sections the Parliament may make laws: 20 | P a g e

o o

o

(i) defining the jurisdiction of any federal court other than the High Court; (ii) defining extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction.

Application • Hardly relevant • E.g. Certain areas of the CCA (new TPA) cannot be heard by SC and must be heard by FC Appellate Jurisdiction 

o



Jurisdiction • Appeals from single judge of FC • Appeals from judgments of a State Court (But NOT the full VSCA)

Money • Unlimited monetary Accrued Jurisdiction (All matters in controversy) 

o



Rule •

• • 

Court shall grant all remedies to the parties before it appear to be entitled so that, as far as possible, all matters in controversy between the parties may be completely and finally determined S22 FCA Policy: Avoid a multiplicity of proceedings Matters: Defined broadly

Whole Controversy • Rule o FC has the jurisdiction to determine the whole controversy between the parties, even if some part of it would otherwise be outside its jurisdiction Fencott v Muller • Matter o All causes of action arising from the same events/transactions Re Wakim • Application o Determine whether the federal cause of action is ‘real enough’ o This is a question of degree 



In Fencott, claims under CL and TPA were allowed

Discretionary • Accrued Jurisdiction is discretionary Stack v Coast Securities; Phillip Morris

LEADING CASES • Fencott v Muller (1983) o Facts  

Involved the sale of a restaurant and a wine bar in Perth The purchaser alleged false representations as to profits and turnover of the business 21 | P a g e

•

  o

Sued for fraud, breach of contract, negligence and breach of TPA/CCA Also claims against other respondents for indemnities and breach of fiduciary duty Respondents contended the proceeding was entirely outside the jurisdiction of the Federal Court

Held 



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 • Matter = all causes of action arising from the same events/transactions Whether Federal matter real is enough is a question of degree

TERRITORIAL JURISDICTION WHAT IS IT? • The Court requires jurisdiction over the D EXAM • •

Areas of Jurisdiction Territorial Jurisdiction o Presence; OR o D submits; OR o Valid service

AREAS OF JURISDICTION •

Constitution Act (Vic) s 85(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior court of Victoria with unlimited jurisdiction

•

Coastal Waters (State Powers) Act 1980 & Coastal Waters (State Title) Act 1980 o

(Cth): States have legislative powers over 3 nautical miles of coastal waters.

TERRITORIAL JURISDICTION RULE • •

The Court requires jurisdiction over the D (Territorial/in personam jurisdiction) Must show one of: o D present in the jurisdiction OR o D submits to jurisdiction OR

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o EXAM •

Valid service on D

1) PRESENCE OF DEFENDANT IN THE JURISDICTION o Previously  o

Now 

•

Presence within the state (or normal residency) was essential to exercise jurisdiction. Laurie v Carroll Presence is not required, if D submits, or there is valid service

2) DEFENDANT SUBMITS TO JURISDICTION o Rule Where defendant voluntarily submits to the jurisdiction This is done by filing an unconditional appearance – D is taken to have submitted to the jurisdiction Contract  

o



•

It is possible to submit to a jurisdiction under a clause in a K if that K refers to a specific court Vogel v Kohnstamm

3) VALID SERVICE WITHIN/OUTSIDE JURISDICTION o Statutory Extension of Territorial Jurisdiction  o

Court may have valid in personam jurisdiction over a defendant outside jurisdiction who is validly served with proceeding Laurie v Carroll

Acts 



In Another State • Service and Execution of Process Act 1992: Gives courts of states and territories Australia-wide in personam jurisdiction Kontis v Barlin In Another Country • Order 7 allows someone who is overseas to be served • Supreme Court Rules for Overseas Service: Covers service outside of Australia; but requires some nexus between case or defendant & the forum o I.e. contract btw NZ &VIC, jurisdiction could be either place – don’t want 2 cases

FORUM NON CONVENIENS (OVERLAP BETWEEN COUNTRIES) WHAT IS IT? • Courts have the power to stay a proceeding if it is in a clearly inappropriate forum CONTEXT • Used when D wants to contend that P has brought the proceeding in a jurisdiction that is clearly inappropriate EXAM 23 | P a g e

•

•

Rule o

D may apply to have the Court (per 8.09) set aside service of writ or stay proceedings on the basis that Victoria is not a convenient forum 7.05(2)(b) Test in Aus o TEST

o

Stay will be granted if the Australian court is a clearly inappropriate forum Voth (Brennan J) What is CIF?

o

The court will be clearly inappropriate if continuation would be oppressive, vexatious or an abuse of process Voth What is Oppressive, Vexatious or an Abuse of Process?

o

To determine, look at: Voth • Relevant connecting factors Spiliada (per Lord Goff) AND • Legitimate personal or juridical advantage Spiliada (per Lord Goff) AND • Can also look at workload and backlog of the Court BHP AND • Similar care in current jurisdiction, better to stay there due to expertise Cambridgeshire Factor form Spiliada Connecting Factors from Spiliada

o

1. Expense and convenience 2. Where did the cause of action arise? 3. Where do the parties reside or carry on business? 4. Where do the majority of the witnesses reside (Look at convenience for witnesses as well as the parties)  5. Which law will apply/governs the relevant transaction?  6. Are there any other parties involved & are they amenable (ie liable to) to any particular jurisdiction? Example: VOTH







   



Stay in Voth granted due to: • • • •

•

•

Breach / Most of damage, evidence and other witnesses in USA Most applicable (tax) law was in the US One party in each jurisdiction In the US, the limitation period had expired, but D promised they wouldn’t use that as a defence

Test in Most Other CL Jurisdictions o Stay will be granted if another forum is more appropriate Spiliada Maritime Corporation v Cansulex Comparing the Tests o Aus is better for P as it is as more difficult test and therefore there is less chance the proceeding will be stayed o Aus uses this test as it does NOT involve the assessment of the appropriateness of a court in another jurisdiction, just the appropriateness of the current court

LEADING CASE

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•

Voth v Manildra Flour Mills (HCA) o Facts  Plaintiff commenced proceedings in NSW against an accountant practising in Missouri, USA • Action for damages for professional negligence • P alleged S failed to advise on Ps liability to account to the Inland Revenue Service (USA) for withholding tax, whereby penalties and interest became payable  Respondent sought to stay the proceedings on the ground that the NSW court lacked jurisdiction o Held (HCA)  HCA ordered the NSW action be stayed  “We have little doubt that Missouri is the more appropriate forum but it does not necessarily follow that New South Wales is a clearly inappropriate forum ...  In favour of a stay are the considerations that the action has a substantial connection with the law of Missouri, the relevant acts and omissions took place predominantly in Missouri and the professional standards will therefore be relevant to his liability, if any; in large part the damage which the appellant was alleged to have caused was referable to United States taxation law; and the greater part of the evidence in any trial of the action would be found in Missouri  On the other hand, the plaintiffs in the action are residents of New South Wales and may therefore reasonably point to the advantages to them in practical terms of bringing actions in the local courts”  “… the principles to be applied in applications to set aside service and in applications for a stay on the inappropriate forum grounds are those stated by Deane J in Oceanic Sun, at pp 247-248  In the application of those principles the discussion by Lord Goff in Spiliada (at pp 477-478, 482-484) of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance.”  Spiliada factors: include – • 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? • Are there any other parties involved and are they amenable to any particular jurisdiction  “Stay should be granted if the local court is a clearly inappropriate forum which will be the case if 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.”

CROSS-VESTING OF JURISIDCTION (MOVING FROM STATE TO STATE, STATE TO FED, FED TO STATE) WHAT IS IT? • Moving from State to another State, from State to Fed, or from Fed to State 25 | P a g e

•

Introduced in 1987 to allow each court to provide a complete relief

CONTEXT • Transfer from a State Court to State or Fed • Transfer from a Fed Court to a State Court • E.g. A sues B for breach of CCA in SCV – B wants it moved to the FC EXAM • • • • • •

1) Establish vesting component 2) Establish transfer component 3) Choose CV Act 4) Choose relevant SS of S5 5) Transfer MUST be made (3 occasions) 6) More appropriate

1. VESTING/CONFERRAL OF JURISDICTION WHAT IS THIS? • Show which act gives jurisdiction to the relevant court • Show which act receives the jurisdiction TRANSFER TO STATE COURT, FROM ANYWHERE • Which Act Gives Jurisdiction o

•

S.4 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) gives original jurisdiction to State SCs of other States – The “giving”

o Each state an territory has an identical Act Which Act Receives Jurisdiction o

S.9 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) Allows the Vic SC to use the jurisdiction of the other SCs – the receiving

o

Each state an territory has an identical Act

TRANSFER TO FED COURT, FROM ANYWHERE • Which Act Gives Jurisdiction o

Previously 

S.4 Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) gives the FC jurisdiction to all State SCs (with not exclusions) – The “giving”



This was declared constitutionally invalid as it gives state jurisdiction to a federal court Re

Wakim; Ex Parte McNally o

Now





Fed court can use its accrued jurisdiction to exercise State jurisdiction where it arises from the same matter (series of transactions) Re Wakim (See more above) Otherwise the FC can NOT exercise State jurisdiction

2. TRANSFER OF PROCEEDINGS

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WHAT IS IT? • If both the transferring court and the receiving court have the jurisdiction to hear the case, then the court where proceedings are commenced can transfer to a more appropriate court if there is one. TRANSFER • Policy o Mechanism for transfer of proceedings to best-suited court, but need to ensure that the scheme does not foster forum-shopping, and maintains the jurisdictional balance between various courts • Select the Appropriate Section o In or Desired?  Section is based on the Jurisdiction you are in, not the desired location o Rule  Courts may transfer to each other per Jurisdiction of Courts (CrossVesting) Act 1987 (Vic) • S5(1) – from Supreme Court to Federal or Family Court • S5(2) – from Vic Supreme Court to another Supreme Court • S5(3) – from another Supreme Court to Vic Supreme Court • S5(4) – from Federal or Family Court to Supreme Court • S5(5) – from Federal or Family Court to Federal or Family Court WHERE TRANSFER MUST BE MADE • Rule o There are 3 occasions in which a proceeding MUST be transferred:  1) Separate But Related Proceedings • There are separate but related proceedings pending in a different court, and the court considers it would be more appropriate for all proceedings to be decided by the other court s5(?)(b)(i)  2) More Appropriate • It would be more appropriate for another court to hear the proceeding s5(?)(b)(ii) o See MA definition below o Does NOT have to be the same parties o MUST be common question  3) Interests of Justice • Does NOT apply to Sup to Fed (S5(1)) – as this is constitutional breach • It is in the interests of justice that there be a transfer s5(?)(b) (iii) • FNC does not play a role in determining IoJ, but Spiliada factors can be helpful BHP • Application (MA) o In determining the more appropriate, the court MUST have regard to  1) Where would case have been heard if there was no CV legislation? • Is the first court incapable of hearing the proceeding, and is another court capable of hearing it? • E.g. BHP – would have been heard in QLD as rights were being pursued under the Money Lenders Act (QLD)  2) Law of another jurisdiction • To what extent does the matter involve the application of law from another jurisdiction? 27 | P a g e

•



E.g. BHP – Clause in K said relevant law was QLD and the relevant act was from QLD 3) IOJ and More Appropriate • In the IOJ, is it more appropriate the proceeding be determined by another SC? • FNC does not play a role in determining IOJ, but Spiliada factors can be helpful BHP o Connecting Factors from Spiliada    

 

1. Expense and convenience 2. Where did the cause of action arise? 3. Where do the parties reside or carry on business? 4. Where do the majority of the witnesses reside (Look at convenience for witnesses as well as the parties) 5. Which law will apply/governs the relevant transaction? 6. Are there any other parties involved & are they amenable (ie liable to) to any particular jurisdiction?

LEADING CASE • BHP Billiton v Shultz o Facts  Plaintiff suffered from asbestosis, which he claimed was the result of exposure to asbestos while he worked for BHP at Whyalla in South Australia  P commenced proceedings in NSW Dust Diseases Tribunal  Ds sought to have the matter transferred to the Supreme Court of South Australia • It was not in dispute that the law of SA would be the substantive laws that would govern the claim  The jurisprudential basis of the cross-vesting law differs from the common law relating to FNC – Decision by courts of which is the more appropriate o Held  “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’.  Speed with which a court/tribunal can deal with the case is a consideration relevant to the interests of justice  Question – what do the interests of justice require? Things like ‘forums non conveniens’ do not play a role in this issue. However, the Spiliada factors can be helpful in answering this question • 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 laws will apply/govern the relevant transaction? • Are there any other parties involved and are they amenable (i.e. liable) to any particular jurisdiction? • Whether there is a significant backlog of cases in poss. crt of transfer 28 | P a g e

•

How important are the issues and what jrdn do they rely on?

29 | P a g e

4) INSTITUTING PROCEEDINGS WHAT IS THIS ABOUT? • How to start a proceeding EXAM STRUCTURE • 1) Intro Crap o Client Management (quick) o Letters of Demand (quick) o ADR (if relevant – quick) • 2) Identify Parties + Cause of Action • 3) Does P have Standing? o Private right o Special interest • 4) Capacity o P o D o E.g. D is a corporation and therefore has capacity to be sued under s124 corporations act • 5) Overarching Obligations (quick) • 6) Originating Process o Intro line (proceeding commended by filing OP) o Writ o OM • 7) Limitation of Actions

A) CLIENT MANAGEMENT OVERVIEW • Quick one or two lines about CM CLIENT MANAGEMENT • Leading Line o Complaints about lawyers’ conduct has resulted in rules governing the solicitor/client relationship • Communication Between Solicitor and Client o Should disclose all available options and consequences o MUST explain fees and complaints handling procedure LPA 2004  Fees: how they are charged and calculated  Complaints: how to complain about a solicitors’ behaviour COSTS DISCLOSURE (MORE DETAIL – ONLY USE IF SPECIFICALLY ASKED) • Section 3.4.9 – Disclosure of Costs to Clients o Solicitor must disclose to a client:  The basis on which legal costs will be calculated;  The client’s right to: • Negotiate a costs agreement with the law practice; and • Receive a bill from the law practice; and • Request an itemised bill within 30 days after receipt of a lump sum bill.

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

 

An estimate of the total legal costs or, if that is not reasonably practicable: • A range of estimates of the total legal costs; and • An explanation of the major variables that will affect the calculation of those costs; and Details of the intervals (if any) at which the client will be billed; and If the matter is a litigious matter, an estimate of – • The range of costs that may be recovered if the client is successful in the litigation; and • The range of costs the client may be ordered to pay if the client is unsuccessful.

B) LETTERS OF DEMAND: PLAINTIFF OVERVIEW • Quick one lines about P sending an LOD prior to commending proceedings LETTERS OF DEMAND • What is it? o Letter from P to D demanding that D do something e.g. pay a sum of money • Benefits o Good practice o Opens discussion o Notifies the party o Can avoid litigation • Offer for Settlement o LOD may include an offer for settlement o Can be ‘without prejudice’ (see costs) PRE-LITIGATION PROTOCOL • In the UK o Certain categories of civil litigation require parties to take steps prior to commencing proceedings o Include:  Letters of Demand  Response to LOD  Meeting to Negotiate o Theory is that issuing proceedings should be a last resort • Victoria o Possible Rule  The Civil Procedure Act 2010 Chapter 3 “Pre-litigation Requirements” proposed that disputing must take reasonable steps to resolve their disputes, or to clarify and narrow the issues before suing o Repealed?  However, the Act is proposed to be repealed before it comes into force. o Pre-Litigation Requirements  ‘Reasonable steps' • The exchange of correspondence, information and documents relating to the dispute AND • The consideration of options for resolving the dispute without the need for proceedings 31 | P a g e

Negotiations/ADR • Parties 'must not unreasonably refuse to participate in genuine and reasonable negotiations or appropriate dispute resolution'  Certification • Once litigation is commenced, each party must certify whether it has satisfied the pre-litigation requirements and, if not, the noncomplying parties must state briefly why that is the case Sanctions for Non-Compliance  A party can commence proceedings without complying with the prelitigation requirement  Court may order that a party (or the party's legal representative) pay other parties' costs of compliance with the pre-litigation requirements  Court may also take into account a party's failure to comply with these requirements when considering questions of costs generally and in making any procedural orders in the proceeding 

o

C) STANDING: PLAINTIFF WHAT IS IT? • P must show he has standing or sufficient interest in the subject matter of the legislation • Standing is sufficient connection to, and harm from, the law or action challenged to support that party’s participation in the case • AKA locus standi STANDING • TEST o P must show he has either:  A private right OR  A special interest in the subject matter of the action • “special interest” does not need to involve a legal or pecuniary right but has to be more than a ‘mere intellectual or emotional concern’ and must be an interest that is different from that of an ordinary member of the public AFC • Each case decided on its own facts Onus • See factors below o Special Interest Factors from AFC  More than Mere Emotional Concern • “… an interest, for present purposes, does not mean a mere intellectual or emotional concern • “a mere believe or concern, however genuine, does not in itself constitute a sufficient locus standi” (Mason J at 548)  Gain Advantage • A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails (Mason J at 530)  Does NOT have to Involve a Legal or Pecuniary Right

32 | P a g e

•

•

However, it does not have to involve a legal or pecuniary right (Mason J at 530) or that the plaintiff and no-one else possess the particular interest  Special Interest • A special interest exists where the plaintiff can show actual or apprehended injury or damage to his or her proprietary rights, business or economic interests and perhaps social or political interests. (Mason J at 530)  Corporation • A corporation or association does not acquire standing merely because some of its members possess it (Gibbs J at 531) • Public Interest Groups o Rule  Same test as above, but courts tend to take additional considerations into account  E.g. Group must show that it is representative of a significant public concern, and has an ‘established interest in the area’ o Analysis  Standing threshold is arguably higher for a group than for an individual Fisher & Kirk, ‘Still Standing: An Argument for Open Standing in Australia and England’ 71 Australian Law Journal 370, 376 (1997)

LEADING CASES • AFC v Commonwealth (1980) o Held  More than Mere Emotional Concern • “… an interest, for present purposes, does not mean a mere intellectual or emotional concern • “a mere believe or concern, however genuine, does not in itself constitute a sufficient locus standi” (Mason J at 548)  Gain Advantage • A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails (Mason J at 530)  Does NOT have to Involve a Legal or Pecuniary Right • However, it does not have to involve a legal or pecuniary right (Mason J at 530) or that the plaintiff and no-one else possess the particular interest  Special Interest • A special interest exists where the plaintiff can show actual or apprehended injury or damage to his or her proprietary rights, business or economic interests and perhaps social or political interests (Mason J at 530)  Corporation • A corporation or association does not acquire standing merely because some of its members possess it (Gibbs J at 531) •

Onus v Alcoa of Australia Ltd (1981) o Facts

33 | P a g e





o

Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with a relic or carried out an act likely to endanger a relic should be guilty of an offence Descendants and members of the Gournditchjmara Aboriginal people wanted to commence an acting to restrain D from contravening this section D argued they had no standing

 HELD  Descendants and members of the Gournditchjmara Aboriginal people are custodians of the relics of cultural and spiritual importance of those people according to their laws and customs, and so have standing to commence an action to restrain another citizen from contravening section 21 of the AARPA  “The distinction between this case and the ACF Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of ‘special interest’ supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern the plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter” (Stephen J.)

CAPACITY: BOTH PARTIES WHAT IS IT? • Both the Plaintiff and Defendant must have the recognised legal capacity to sue / be sued • One line saying why P and D have capacity CONTEXT • Minors / Handicapped People • Company • Partnership • Trading Business • Trustees / Executor • Insured has Died • Bankrupt CAPACITY GENERALLY • Rule o Both P and D must have recognised legal capacity to sue and be sued o Capacity determined by character of parties, not rights involved

SPECIAL CIRCUMSTANCES • Indorsement as to Capacity o Where a party sues in a representative capacity, the originating process shall be indorsed with a statement showing that capacity 5.06 •

Person Under a Disability (Handicapped / Minor) 15.01 o Definitions  Person under disability 34 | P a g e



o

Rule   

• Minor or handicapped person Handicapped person • A person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding; Must commence or defend a proceeding by a litigation guardian – 15.02(1) Anything that is required/permitted by the Rules to be done by a party shall or may… be done by his or her litigation guardian 15.02(2) LG must be identified in the title of the proceedings (see diagram below)

DESCRIPTION OF PROCEEDINGS BROUGHT BY A LITIGATION GUARDIAN In the title: AB, an infant, by CD her litigation guardian

Plaintiff

And XYZ

Defendant

In the statement of claim: 1. Plaintiff AB is a minor and sues by her litigation guardian, CD.

•

Corporation o What is a Corporation  A body with an ABN, Pty, Ltd or ASIC listing  Unincorporated bodies are NOT corporations and can NOT be sued (must sue owner personally) o Rule  Corporations are given capacity by legislation s124 Corporations Act  MUST include CAN as part of its name in any document in legal proceedings

•

Partnership / Business o Partnership Rule  Not a legal entity, but P can use the partnership name when suing 17.01  Do NOT need to mention every partner  Can access property that is jointly owned  Need only serve 1 partner  See diagram for requirements o Business  Rule • Any person carrying on business within Victoria in a name or style other than that person's own may be sued in that name or style as if it were the name of a firm 17.10 • So P can use the name of a business to sue the person carrying on the business  Applies as if Owner was a Partner • Rules 17.02 to 17.09 shall apply, with any necessary modification, as if that person were a partner and the name in which the person carries on business were the name of that person's firm 35 | P a g e

DESCRIPTION OF PROCEEDINGS BROUGHT BY A PARTNERSHIP In the title: JECKYL, HYDE AND CRUSOE (A FIRM)

Plaintiff

NOT – JECKYL AND HYDE (trading as Jeckyl, Hyde and Crusoe) And XYZ

Defendant

•

Estates: Executor, Administrator and Trustees o Rule  Proceedings relating to an estate or trust must be taken against the executor, administrator or trustee of the estate Order 16  It is not necessary to join those beneficially entitled Order 16 o When Does this Apply?  16.01 Representation of unascertained persons applies to: • (a) the administration of the estate of a deceased person • (b) property subject to a trust; or • (c) the construction of an instrument, including an Act

•

Bankrupt (See Bankruptcy Act and Corporations Act for More) o Rule  If a person is bankrupt, or a company is in liquidation, they can NOT sue or be sued

OVERARCHING OBLIGATIONS (CIVIL PROCEDURE ACT 2010) WHAT IS IT? • Before issuing a civil proceeding each party must certify they have read and understood the overarching obligations • Quick 1 or 2 liner OVERARCHING OBLIGATIONS • What are the Obligations Pt 2.3 Civil Procedure Act 2010 o To act honestly o To have a proper basis to any claim o To only take steps to resolve or determine the dispute o To cooperate in the conduct of civil proceedings o To not mislead or deceive o To use reasonable endeavours to resolve dispute o To narrow the issues in dispute o To ensure costs are reasonable and proportionate o To minimize delay o To disclose the existence of documents • Sanctions Resulting from Contravention of the Obligations o Court Takes it into Account  Section 28 Court can take account of any contravention in exercising any power in relation to a civil proceeding o Court Can Order  Section 29 Where satisfied of contravention on balance of probabilities, court can make an order it considers appropriate in the interests of justice – including: • Orders for Payment of cost

36 | P a g e

• •

•

Order that person take steps to remedy the contravention Order preventing a person from taking specific steps in the proceedings o Party Can Apply for Order  Section 29(2) allows order to be made on application of any party, or other person with interest in proceeding, or on court’s own motion  Section 30 sets out how and when an application under s29 must be made o Court can NOT Prevent Proceedings  Court may not (unless orders otherwise) prevent commencement of proceedings merely because of failure to comply with certification requirements Section 45 Certification o Overarching Obligations Certification by Parties  Each party must personally certify that they have read and understood the overarching obligations and the paramount duty S41  This must be filed with the first substantial document in the proceed filed by the party, ie Statement of Claim, Defence S41

37 | P a g e

ORIGINATING PROCESS WHAT IS IT? • Proceedings are commenced by filing an OP • 2 types of OP are o Writ o OM GENERAL RE ORIGINATING PROCESS INTRODUCTION • 2 Ways to Commence a Proceeding 4.01 o 1) File a Writ with the Prothonotary o 2) File an OM with the Prothonotary GENERAL RULES FOR OP • Commence a Proceeding o A proceeding shall be commenced by filing an originating process R5.11(1) SCR • Service o An originating process must be served personally, except where otherwise provided R6.02 SCR o An originating process must be served within 12 months of issue unless extended by court order, otherwise it becomes stale R5.12 SCR • Capacity o Where a party sues or is sued in a representative capacity, the originating process shall be indorsed with a statement showing that capacity R5.06 SCR • Endorsements o Originating process shall be endorsed with P’s address, D’s address and P’s solicitor’s address R5.07(1) SCR o Writ and originating motion shall be indorsed with a statement to the effect that if D does not file appearance within time stated in originating process, P may obtain judgment R5.03(1) SCR WRIT INTRODUCTION • Usual Process to Commence Proceedings o Except as provided by Rules 1.12, 4.05 and 4.06 and Order 58, every proceeding shall be commenced by writ 4.04 •

•

Form o

Per R5.02(1) SCR: Must be in Form 5A

o

Must be indorsed with statement that if D does not file an appearance within the time stated, P may obtain judgment without further notice 5.03(1)

Indorsed with Time and Mode 38 | P a g e

o

Writ will be endorsed with statement of the place and mode of trial desired R5.08(1) SCR

o

If not endorsed – taken to Melbourne without jury R5.08(2) SCR

INDORSEMENTS • Rule o A writ MUST contain an indorsement of claim by either: R5.04(1) SCR  1) General indorsement OR  2) Special endorsement •

General Indorsement o No SOC  No statement of claim filing with writ 

P then has 30 days to file a statement of claim R14.02 SCR

Court may allow P to serve a SoC that has the effect of adding/substituting a cause of action 14.03(2) MUST Include R5.04(2)(b) SCR 

o

o

o

•



Nature of claim (facts)



Cause of action relied upon (e.g. Negligence) • Needs to outline the legal cause of action, not the factual cause of action Ruzeu v Massey Ferguson

 Relief/remedy sought Detail Required  Must be broad enough to “convey the information generally and without particularity” Renowden v McMullin  Particularity is required to the extent the particularity is indispensable to notify the required elements of the endorsement Renowden v McMullin Altering the Claim  P may alter, modify or extend the claim as endorsed on the writ without amendment of the endorsement R14.03(1) SCR

Special Endorsement o SOC  Contains a SOC R5.04(2)(a) SCR  Must include the heading ‘statement of claim’ and plead all the material facts R5.04(3) SCR  If writ indorsed with special indorsement, do not require another Statement of Claim 14.01

39 | P a g e

LEADING CASES • Renowden v McMullin (1970) o Facts:  Plaintiff was a solicitor  Defendant was the firm of accountants that audited the plaintiff’s trust accounts  Plaintiff claimed D failed to notify P of irregularities in his trust account, by reason of which he lost his practicing certificate and, in the long run this led to him becoming bankrupt  Subsequent Statement of Claim made no claim for breach of contract, which had been included in the Indorsement on the writ  After Statute of Limitation period had expired on the breach of contract cause of action, plaintiff sought to amend Statement of Claim to include breach of contract o Held:  Causes of action on which plaintiff relies are to be determined exclusively by reference to the pleading  Plaintiff seeking to raise a new cause of action in the pleadings which is statute barred, and that should not be allowed  “The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is; namely, a notice of the nature of the plaintiff’s claim, of the cause of action thereof and of the relief sought in the action. It suffices if it conveys the information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the endorsement, for example on some occasions, the identification of the instrument on which a claim is founded.”

•

Ruzeu v Massey-Ferguson (1983) o Facts:  “The plaintiffs claim is for damages for injuries he received to his back in an accident which occurred on or about 2 December 1975 whilst he was in the course of his employment with the defendant. The accident occurred as a result of the negligence of the defendant, its servants and agents and the plaintiff claims damages.”  Defendant sought to have writ set aside on basis that it did not give notice of the cause of the claim  At first instance, it was held that indorsement deficient because it did not indicate the nature of the accident which caused the injuries to the plaintiff's back e.g. that he was hit by moving machinery or fell off a scaffold o Held:  On appeal it was held that the indorsement was sufficient  CoA also said – even if had contrary opinion, not correct to set aside the writ, which is a drastic measure putting an end to the action. If indorsement is defective, appropriate order is to order plaintiff to give particulars  “… in our opinion the word “cause” in the rule is not directed to the physical acts which caused the accident or injury. It is directed to the cause of action. Thus what the endorsement must contain is sufficient notice of (a) the nature of the claim, (b) the cause of action relied upon and (c) the relief or remedy required. In an action based on negligence particulars (a) and (b) will often be run together. In the present case the 40 | P a g e

particulars are: (c) damages for (a) personal injuries caused by (b) the negligence of the defendant, Thus the indorsement clearly covered all the requirements of the rule.”

ORIGINATING MOTION OM •

•

•

• •

Context o Used primarily for resolving legal rather than factual disputes  Unlikely to be any dispute of facts and therefore no pleadings or discovery o Where there is no D When is an OM Required? o A proceeding shall be commenced by originating motion: R4.05 SCR  (a) where there is no D to the proceeding;  (b) where by or under any Act an application is authorised to be made to the Court; or  (c) where required by these Rules Optional Commencement by OM o A proceeding may be commenced by originating motion where: R4.06 SCR  (a) it is unlikely that there will be any substantial dispute of fact AND  (b) for that reason it is appropriate that there be no pleadings or discovery Form o Per R5.02(2) SCR: Must be in Form 5B, 5C, 5D or 5E Endorsement on OM o

•

Per R5.05 SCR: endorsement on the originating motion must specify: 

Relief/remedy sought



The Act, if any, under which the claim is made



Where it includes any question to be answered, the question shall be stated



Pleadings are not required

Place and Mode o

P may endorse originating motion with a statement of the place of trial desired, and if not so endorsed, P shall be taken to desire trial in Melbourne R5.08(3) SCR

FAILURE TO COMPLY FAILURE TO COMPLY • Rule o Failure to comply with the Rules is an irregularity, but does not render the document/process/judgment a nullity 2.01(1) • Courts Response o If failure to comply, Court may: R2.01(2) SCR

41 | P a g e

•

 (a) set aside proceeding;  (b) set aside any step taken in the proceeding  (c) exercise powers to allow amendments Setting Aside o The Court shall not wholly set aside proceeding or originating document on the ground that the proceeding was commenced by the wrong process R2.02 SCR

•

Irregular or Abuse of Process o

The Prothonotary may refuse to seal originating process where they consider that sealing the document would be irregular or an abuse of process of the Court 27.06(1)

CAUSES OF ACTION & LIMITATION OF ACTIONS WHAT IS IT • Actions must be brought within the limitation period POLICY • Rationale o Unfair to Ds to have potential lawsuit hanging over them for extended periods o Longer time means evidence is less strong (witnesses forget, stuff goes missing etc) o Public interest in efficiency • McHugh J in Brisbane South Regional Heath Authority v Taylor o “Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. o As the NSW Law Reform Commission has pointed out:  "The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served." o Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible o In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.’

42 | P a g e

GENERAL RULE • Rule o P must commence proceedings within the limitation period o Time is calculated from when the cause of action accrues o Expiry of a limitation period is a procedural defence that D may raise • Legislation o Sections are from the Limitations of Actions Act 1958 (Vic) • Equitable Remedies o Limitation statute does NOT apply to claims seeking equitable remedies (e.g. specific performance or injunctions) o Time for bringing an action seeking equitable relief is governed by the doctrine of laches – court may refuse to grant relief where plaintiff’s delay makes it unjust for court to grant relief i.e. because plaintiff’s slackness has caused prejudice to the defendant. • Cause of Action Accrues o Will accrue when all necessary facts have occurred and there is a competent P who can sue a competent D  Contract: When breach occurs  Tort: When damage is suffered LIMITATION PERIODS • Simple Contract Actions o 6 years from the time of breach 5(1)(a)LAA o From when the cause of action accrues, even if were unaware • Defamation o 1 year from publication 5(1AAA) • Torts Actions (Non-personal Injury such as property loss, economic loss, nuisance) o 6 years 5(1)(a)LAA – Include damages for breach of statutory duty: 5(1A) and 23A cover intentional torts as well, because people who suffer intentional injury should not be worse off than those suffering negligent injury Stingel v Clark Personal Injury/DEATH o What is Personal Injury 

•

o

 Disease or impairments of a persons physical or mental condition S3 LAA  Disease is interpreted broadly Stingel v Clark Rule for PI or Death Whichever elapses first of: 27D LAA • 3 years from date on which cause of action is discoverable by P OR • 12 years from date act/omission alleged to have resulted in death or personal injury Exception  27D doesn’t apply to: dust-related conditions; tobacco; certain stat/comp schemes s27B LAA What is ‘Discoverable’ (Ought)  27F ‘Discoverable’ if P knows or ought to have known all of: • (a) the fact that the death/personal injury concerned has occurred; AND • (b) the fact that the death/personal injury was caused by D’s fault; AND • (c) the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action Objective Tests Determined Subjectively 

o

o

o

43 | P a g e



3 years from the date on which the person first knows [subjectively] • that he has suffered those personal injuries; AND • that those personal injuries were caused by the act or omission of some person

SUSPENSION OF THE LIMITATION PERIODS • Rule o Can be postponed/suspended for:  Fraud, deceit, concealment;  Acknowledgement nor part-payment by defendant;  Plaintiff is under a disability • (under 18 or has a mental disability e.g. that prevents them from managing their affairs, properly instructing a solicitor etc…). • In Victoria, s.27J provides that a minor is only under a disability for the purpose of suspending the limitation period (for personal injury cases) if they do not have a capable parent or guardian EXTENSION OF THE LIMITATION PERIOD • General Rule o Court may extend the limitation period if it is just and reasonable to do so 27KLAA(2)(b) o Time period can be extended even after the period of limitation has expired 27M(1)(a) • Factors to be Considered in Extending Limitation Period o All the circumstances of the case: 27L  Length and reason for P’s delay 27L(1)(a)  Prejudice that’ll be caused to D (facing case shouldn’t be facing; witnesses unavailable); 27L(1)(b)  Did D do anything to obstruct P or help P in ascertaining facts 27L(1)(c)  Was P suffering disability or legal incapacity at the time; 27L(1)(d)  The time within which cause of action was discoverable 27L(1)(e)  Once P knew of right to sue, act promptly & reasonably (what steps to get advice) 27L(1)(f)  Steps taken by P to obtain medical, legal or other expert advice and nature of advice he/she may have received 27L(1)(g)  Whether the passage of time has prejudiced a fair trial of the claim 27L(2) (a)  The nature and extent of the plaintiff’s loss 27L(2)(b)  The nature of the defendant’s conduct 27L(2)(b) o If hardship or prejudice to D, likely P will not be granted an extension Tointon v Greenham o Requires applicant to show its case is a just and reasonable exception to the rule that the welfare of the state is best served by the applicable limitation period McGuinness v Clark LEADING CASE • Clark v McGuinness o Facts:  Joanne McGuinness issued a writ in 2002 alleging she was raped by Geoff Clark (former ATSIC Chairman) in 1981 & 1987 when she was 16 & 23 years old • She alleged this resulted in delayed onset posttraumatic stress disorder

44 | P a g e

  

  

o

The limitation period for the commencement of proceedings expired 6 years after the alleged events took place McGuiness sought an extension of time for the bringing of proceedings pursuant The alleged assaults were reported to the police on both occasions shortly after they occurred, but the matters were not ultimately pursued at that time by the police In 1987, McGuinness consulted solicitors about the assaults Although they advised her that she could pursue a civil claim for the 1987 rape, no claim was pursued by McGuinness at that time In 2000, after having seen Mr Clark in the media, McGuinness began counselling and only then realised the serious nature of the injuries she had suffered as a result of the alleged assaults In 2002, McGuinness issued civil proceedings against Mr Clark

 Held:  Discretion to extend time requires applicant to show its case is just and reasonable exception to the rule that the welfare of the state is best served by the applicable limitation period  Court of Appeal held prejudice against Clark too great and overturned County Court’s decision  Warren CJ: • “In my view, the critical issue in this case is the operation of prejudice and how that factor (as reflected in s 23A(3)) is to be balanced against the other considerations enumerated in s 23A(3) that may predispose a court to support the respondent’s claim for an extension of time. In other words, is the prejudice to the appellant so significant as to outweigh any legitimate claims by the respondent and make their imposition unjust and unreasonable?’

45 | P a g e

Topic 5 – Multiple Parties Introduction Introduction What is it? •

Rules that allow parties and causes of action to be joined into one proceeding

Justification •

Avoid multiplicity of proceedings o

Avoiding duplication saves time and costs

•

Avoids inconsistency of result

•

Promotes finality in litigation

Res Judicata (Cause of Action Estoppel) Introduction •

What is it? o

Where a matter (whole cause of action – a whole claim – e.g. pleading an entire defence or CoA) has been previously decided by a court, this matter can NOT be re-litigated in later proceedings between the same parties

o

Say that again…? 

•

Justification o

•

Res Judicata precludes the re-litigation of claims made in earlier proceedings between the same parties in respect of the same subject matter

Promotes completeness and finality

Relevance to Joinder? o

The failure to join a claim in a proceeding may preclude pursuit of that claim in a later proceeding

o

The failure to join a person to a party will usually mean that a decision in that proceeding will not be binding on that person

Exam •

Leading Line 46 | P a g e

o

•

[Party X] will argue that [matter A] should not be re-litigated with a res judicata plea, as [matter A] has already been decided in [earlier proceeding] between the same parties

Analysis o

Same Parties 

General Rule •



Privies •

o

Same parties includes privies

Persons closely connected to the parties and their claims

Claims that COULD have been made in an earlier proceeding 

General Rule (Anshun Estoppel) •



Extends to claims that could have been made in the earlier proceeding, even if they weren't – Anshun

Fancy Quote to Impress Lecturer in Exam •

“Applies with certain exceptions, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time – Henderson

•

I don’t have time to read that, can you say it with less words please? o



Justification •

o

Parties should bring forward their whole case

Fraud or Collusion 

Exception •

o

RJ extends to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time – Henderson

F or C are exceptions to the rule and when alleged, will allow the relitigation of the same matter – Keith L in Arnold

Discovery of a New Factual Matter 

Rule

47 | P a g e

•

Does NOT allow re-litigation – Keith L in Arnold

Leading Case •

Port of Melbourne Authority v Anshun o

Facts 

Worker injured by a load of steel girders on a crane operated by Anshun Pty Ltd at the Melbourne Port



The worker sued Anshun and the Port authority for damages •



Port Authority brought proceedings against Anshun claiming indemnity in the contract •

o

In that earlier proceeding, the court ordered contribution pursuant to the Wrongs Act that Port Authority could cover from Anshun 90% of the damages

This new contractual proceeding arose from the original negligence proceeding

Held 

Port Authority loses



Claim of a contractual indemnity was so closely connected to the matters raised in the earlier action, that it should have been raised then, and Port Authority was now estopped from raising it in separate proceedings

Issue Estoppel and Res Judicata Issue Estoppel Context •

Example o

Proceeding 1 finds that D1 is responsible for an explosion that that injured P1

o

In proceeding 2 between D1 and P1, D1 can NOT argue that he is not responsible for the explosion, as the issue has already been decided in the proceeding 1

Introduction •

What is it? o

Prevents a party in a civil case from re-litigating an issue of fact or law that has been determined by a prior order or judgment

o

Must be the same parties

48 | P a g e

•

•

Justification o

Prevents contradictory rulings on the same issue

o

Avoid duplication and therefore saves time and money

Distinction between IE and RJ o

o

IE 

Once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of action involving a party to the first case



A final judgment on the merits of an action precludes parties from relitigating issues that were, or could have been, raised in that action

RJ

Exam •

Leading Line o

•

[Party X] will argue that [issue A] should not be re-litigated with an issue estoppel plea, as [issue A] has already been decided in [earlier proceeding or this proceeding]

Analysis o

Property Damage and Personal Injury 

General Rule •

o

Points with Could have been Raised 

General Rule •

o

IE does NOT apply where separate proceedings are brought for property damage and personal injury – Linsley (In which the Vic SC followed the English CoA in Brunsden)

IE extends to points that could have been raised – Keith L in Arnold citing Diplock LJ in Fidelitas

Where the Law has Changed 

General Rule •

IE will NOT prevent re-litigation of an issue if the law has changed – Arnold

Joinder of Parties (Before a Writ if Filed) Joinder of Parties 49 | P a g e

Structure •

Intro

•

Justification

•

3 types of joinder

•

Joinder inconvenient

•

Costs

Exam •

Leading Line o

•

Justification o

•

•

The court may add extra parties to a proceeding, where these additional parties are required to resolve issues or because their rights are affected

Joinder promotes consistency and finality while avoiding duplication, thus saving time and money

3 Types of Joinder o

A) Permissive

o

B) Discretionary

o

C) Compulsory/Necessary

Permissive Joinder (ALWAYS START HERE) o

What is it? 

o

P voluntarily adds additional Ds or co-Ps (co-Ps must consent)

2 Requirements 

i) Common question of law or fact •

Common q of law or fact would arise if separate proceedings were brought by/against each of them – 9.02(a)(i)

•

Apply on the facts

AND 

ii) Same transaction •

Rule o

The rights claimed by P arise out of the same transaction, or series of transaction 50 | P a g e

•

Same Transaction o

Interpret broadly – Adam J in Birtles 

o •

As this is a remedial rule and aims to avoid people undertaking multiple causes of action

Does not need the same cause of action

Series of Transaction o

Interpret narrowly – Payne

o

It will NOT be the same series of transaction when: 

Relief claimed arises from 2 or more different series of transactions, when the participation of each individual P is limited to participation in one series of transaction, the other P not participating in that series – Payne



Say what? •

o

•

P1 and P2 must be involved in the same series of transaction for there to be joinder

Payne: 

2 P’s both ran different abattoirs



Both sought declarations as to the validity of regulations affecting abattoirs



CH (Mason J and Barwick CJ): these claims did NOT arise out of the same series of transactions as there was no common participation by the Ps – each series of transaction was peculiar to each individual P



Note (Mason J Diss): Mason J dissented and argued the phrase should be construed liberally

Discretionary Joinder (IF PJ FAILS, COME HERE) o

What is it? 

o

P can seek leave for the court to exercise its discretion and grant joinder – 9.02(b)

Factors Court will Consider 

TEST •



What is most conducive to a just resolution of the dispute between the parties – Bishop

Factors FOR 51 | P a g e

o

Joinder unlikely to cause significant unfairness to any party – Bishop

•

Desirability of limiting costs and delay of litigation – Bishop

•

Avoid flooding courts with unnecessary litigation – Bishop

•

Evidence to relied upon must be very similar to as not to create too great a burden on the D – A&J

If Only 1 Arm of 9.02(a) can be Satisfied 

•

•

Unreported decisions suggest court can exercise discretion – Glenwood

Compulsory/Necessary Joinder (IF DJ FAILS, COME HERE) o

Context 

o

Example: Person A buying a house from B&C – B&C get a better offer after entering into K for the sale of land – A sues B and not C – Court refuses and compulsorily attaches C

Rules 

Relief •

Where P claims relief to which someone else is jointly entitled, all persons jointly entitled must be joined – 9.03(1)

•

Example o





P1 and P2 jointly own a car – both must be plaintiffs

Joint and Severable Liability (e.g. Torts) •

J and S L – means both parties (D and X) are liable for the full amount

•

Where P claims again D who is jointly and severally liable with X, X need not be made a D to the proceedings – 9.03(2)

•

D must chase the X for contributions

Joint (but not severable) Liability under a K •

Rule o

•

Effect o

•

Where D is jointly liable under a K with another, P should claim against D and all persons jointly liable – 9.03(3)

If P does not join all persons jointly liable as Ds, court can stay proceedings until all persons are joined – 9.03(3)

Severable 52 | P a g e

o

o

Timing 

o

Able to be legally separated without invalidating what remains (i.e. P can go after the whole amount from either D)

Court can make these orders before or after the non-joinder – 9.03(14)

Policy 

Theory behind compulsory joinder is that all parties who are necessary and proper for the resolution of the dispute should be before the court



This is an exception to the rule that Courts don’t decide who are parties to disputes

Joinder Inconvenient •

Context o

•

D may argue a joinder is inconvenient and should therefore not occur

Rule o

A joinder is inconvenient where it: – 9.04 

“… unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.” – Bongiorno J in Gunns (July 2005) citing SCV in Meckiff

•

In Gunns, the doc was embarrassed because the pleadings were so long and complex

may delay the trial



may cause prejudice •

Jury trials only

•

Where there is a risk the actions of D1 could unfairly tarnish D2

is otherwise inconvenient

Discretion o

•

•



 •

may embarrass

The court has discretion in ordering joinder and will consider

Effect of Inconvenient Joinder o

If court finds a potential joinder inconvenient, it may order: 

Separate trials

53 | P a g e



Exclusion of a claim



Cost orders for attending the irrelevant part of the trial



Removal of parties

Costs •

•

Ordinary rule: o

Losing D pays Ps costs

o

P pays winning Ds costs

Bullock order: o

•

Losing D reimburses P for winning Ds costs

Sanderson order: o

Losing D pays winning Ds costs directly

Leading Cases •

Birtles v Commonwealth of Aus (1960) o

o

Fact 

W Plaintiff sued for damages for personal injuries arising from an industrial action



Each of the defendants asserted that the claim was statute barred, including that the plaintiff didn’t serve a notice on the SEC within 6 months of the accident, as required by statute



Plaintiff sought to add his original solicitor as a defendant alleging negligence in not serving the notice

Held   

•

Same transaction’ to be broadly construed – it is a remedial rule Not just the accident and injury sustained, but also subsequent matters relevant to the action against the defendants If plaintiff had to sue solicitor separately, there was a risk that: • Lose action against defendants because action statute barred; and • Lose action against solicitor because fail to satisfy the judge that the defence of statute of limitations was sound (a prerequisite to succeeding against the solicitor)

Payne v Young (1980) o

Fact

54 | P a g e

o



Seven plaintiffs were all owners of abattoirs in WA



They sought a declaration that the inspection fee payable under the Regulations was an excise and, as it was imposed by State legislation, it was void, excise being within the exclusive jurisdiction of the Commonwealth



However, each plaintiff made an individual claim against one defendant only, for the repayment of fees paid to the defendant



Thus each relevant defendant had only a single claim made against it for repayment of money paid under compulsion or paid under mistake of law

Held 



•

CH (Mason J and Barwick CJ): these claims did NOT arise out of the same series of transactions as there was no common participation by the Ps – each series of transaction was peculiar to each individual P •

Claim for a declaration did not arise out of any transaction or series of transactions

•

No common participation by plaintiffs in the inspection services – ‘Each series of transactions was peculiar to each individual plaintiff’

•

‘The most that can be said here is that the claims arise out of similar transactions’

Note (Mason J Diss): Mason J dissented and argued the phrase should be construed liberally

Bishop v Bridgelands Securities (1990) FCA o

o

Fact 

Respondents sent out letters to many recipients to entice them to invest money in Estate Mortgage, a company, which ultimately failed, and funds were unsecured



The original applicant sought to join 114 other investors as co-applicants



Solicitor had consent of all of them to become parties



Cause of action was breach of section 52, and breach of securities law



At Fed Court, counsel for applicant conceded that r 9.02(a) could not apply



Fed Court rules did have equivalent of r 9.02(b), so sought to invoke court’s broad discretionary power

Held – Wilcox J set out factors to consider: 

Take whatever course is most conducive to a just resolution of this dispute between the parties

55 | P a g e

•



 

•

but try to limit cost and delay inherent in litigation AND joinder was not going to result in any significant prejudice or disadvantage Should all be represented by the same lawyer (as a general practice): • Someone to be responsible for the running of the case in a coordinated manner Plus should have substantial overlap in the evidence. Existed here. If deny leave, would have had 114 separate claims in Fed Court on same issue • Plus smaller parties might not have the funds to achieve justice independently

A & J Partitions v Jolly (Vic SC) o Fact

o



Similar proceedings as above – many individuals invested money on the basis of assurances of Victorian Government and auditors that it was okay to invest



Plaintiffs knew, because of Payne v Young, that they would not succeed on both limbs of 9.02(a)



So, 4,448 investors applied to join as plaintiff, and so applied under r 9.02(b)

Held (Beach J) 

Application accepted under 9.02(b)



One factor considered was that 1 of the 2 limbs from (a) was met

Joinder of Claims by P Structure •

Intro

•

Justification

•

Discretion

Exam •

Leading Line o

•

P may join ANY number of claims against a D whether the P makes the claims in the same or in different capacities and whether the claims are made against the D in the same or in different capacities – 9.01

Justification

56 | P a g e

o •

It’s important to join relevant, because if P doesn’t, RJC may prevent the bringing of the second claims at a later time

Discretion o

Court has discretion whether to order joinder

o

Court will consider RJ, issue estoppel, overlap of claims, evidence to be called AND joinder inconvenient

Joinder of Claims by D Structure •

Intro

•

3 Options o

CC

o

Setoff

o

TPP

Exam •

Introduction o

•

There are 3 ways D can bring his own issues to a case: 

CC



Setoff



TPP

Counter Claim (always look at set off as well) o

Leading Line 

o

o

A defendant who has a claim against the plaintiff may counterclaim – 10.02(1)

D acts as P



CC acts as a sword and therefore 9.01 applies to a counterclaim as if P were D and D were P – 10.02(2)



CC is NOT a defence, it is a new cause of action – therefore it entitles D to relief, and will continue even if the first matter is dropped

Form

57 | P a g e



Pleaded in a document called a ‘Defence and Counterclaim’ – 10.02(3)

o Joinder 

o

D may join any other person (whether party to proceeding or not) who, if D were to bring a separate proceedings could be properly joined with P as a party in accordance with 9.02 – 10.03

CC Inconvenient 

Rule •

Court has discretion to order a CC inconvenient where it: – 10.06 o

“… unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.” – Bongiorno J in Gunns (July 2005) citing SVC in Meckiff



In Gunns, the doc was embarrassed because the pleadings were so long and complex

may delay the trial

o

may cause prejudice 

Jury trials only



Where there is a risk the actions of D1 could unfairly tarnish D2

is otherwise inconvenient

Effect of Inconvenient CC •

•



o

o 

may embarrass

If court finds a potential joinder inconvenient, it may order: – 10.06 o

(a) Separate trials for the CC and the Ps claim

o

(b) A claim in the CC is excluded

o

(c) Strike out the CC but allow the D to bring the claim in a separate proceeding

o

(d) Order that a person joined as D to the CC cease to be a party to the CC

Setoff o

When Can it be Used? 

Can only be used when the parties seek money (i.e. recovery of debt, damages) – 13.14 58 | P a g e

• o

Acts as a Defence 

o

Set-off is a statutory defence (not a claim and therefore don’t need filing fees etc)

Set-off Against What? 

Can set off against anything – need not be related to the current case •

 o

o

Can NOT be used for where injunction, declaration etc is sought

E.g. P owes D $50 from a loan, P sues D for $100, can offset the $50

Often used to set-off against a CC

Relationship with CC 

Always ask for setoff with CC



Don’t necessary ask for CC with every setoff •

May not want to pay filing fee for new CC cause of action

•

May be something like contributory negligence with no cause of action

How Much? 

If setoff is more than the amount, D can CC for the outstanding

•

1) Does D have a claim against the P?

•

2) If yes, can counterclaim under 10.02(1)

•

2a) Document entitled ‘Defence and Counterclaim’ 10.02(3)

•

3) D can join any number of claims against the P (9.01)

•

3a) 9.01 applies to counterclaim as if P were D and D were P 10.02(2)

•

4) D may join any other person who, if D were to bring a separate proceeding, could be properly joined with P in accordance with 9.02

•

5) Is 9.02 made out?

•

5a) Would a common question of law/fact would arise if separate proceedings were brought 9.02(a)(i)AND

•

5b) Do all rights to relief claimed arise out of

same transaction or series of

transactions? 9.02(a)(ii) •

6) Counterclaim Inconvenient: Does the counterclaim embarrass, delay the trial, cause prejudice to any party or otherwise cannot be conveniently tried? 10.06

•

6a) If there is a joinder inconvenient, the Court may order:

•

separate trial 10.06(a), exclude any claim in the counterclaim 10.06(b), strike out claim without prejudice to D’s right to assert in separate proceedings 10.06(c), order any person joined as D to be party to counterclaim 10.06(d) 59 | P a g e

THIRD PARTIES WHAT IS IT? • D makes a claim against a TP not already party to the proceeding CONTEXT • Where the transaction involves an intermediary o E.g. A sells faulty car to B who on-sells to C – C sues B – B adds A as a TP o E.g. B adds his insurance agency as a TP EXAM •

• •

•

Separate Matter o TPP considered a separate matter – so same rules apply as would to original proceedings Concurrently Liable o D and TP must be concurrently liable, not alternatively liable Claims o D claims one of the following against TP not already party to the proceeding: 11.01  A) Any contribution or indemnity 11.01(a) • Contribution: liability is only partial (only some/part of the amount) i.e. 2 parties are negligent • Indemnity: entire obligation is paid/indemnified i.e. insurance contracts, guarantors etc  B) Any relief or remedy relating/connected to original subject matter and substantially the same as some relief/remedied being claimed by Plaintiff 11.01(b)  C) Any question relating to/connected with original subject matter of proceeding should be determined not only between P and D but also between either/both of them and the third party 11.01(c) Timing o D can NOT filed a third-party notice unless they have first filed a defence/counterclaim 11.05(1) o TP notice may be filed: Within 30 days after the time for the service of a defence 11.05(2)(a) OR  At any time with leave of Court 11.05(2)(b) OR  At any time with consent of the P & any other party who has entered an appearance 11.05(2)(b) Form, Filing and Service o Filing 

•

 o

Claim commenced by filing TP notice in the Court, whereupon TP becomes party to proceeding 11.04(1)

Form

60 | P a g e

TP notice in Form 11A shall be endorsed with a Statement of Claim 11.02 Service 

o

Filed & served in the same manner as originating process is filed and served on D 11.04(2)  TPN shall be served on third party within 60 days after it is filed 11.07(1) • Court may fix another period for service of a third party before notice is filed 11.07(2)(a) or at the time it grants leave under 11.05(2) to file the notice 11.07(2)(b) • Court may extend period for service for such further period as it sees fit 11.07(3) before or after expiry of period for service 11.07(4)  D must serve a copy of the TPN on the plaintiff 11.07(6)(a) and any other party who has appeared 11.07(6)(b) 4th and Subsequent Parties o TP can bring in 4th and subsequent parties with leave of the court 11.16 D wants to Sue a Party to the Current Proceedings who is NOT a P o D can sue a party to the current proceedings who is not a P if they meet the requirements under 11.01 11.15 o More information in the additional info section below 

• •

ADDITIONAL INFORMATION (DON’T USE UNLESS SPECIFICALLY RELEVANT) • Appearance o TPN shall state a time within which TP may file an appearance in the proceedings 11.03(1)  Notice served in Victoria – not less than 10 days after service 11.03(2) (a)  Notice served out of Victoria – within time limited by Rule 8.04(b), (c) or (d) or within the time limited by any order of the Court authorizing service of the notice 11.03(2)(b) • Rule 8.04: Time stated in writ/originating motion for the defendant shall be o Where served in VIC – Not less than 10 days after service 8.04(a) o Where served out of Victoria but in Australia – 21 days after service 8.04(b) o Where served in NZ, PNG – Not less than 28 days after service 8.04(c) o In any other case – not less than 42 days 8.04(d) o TP may file an appearance within the time limited for appearance 11.08(1) (a) or within such further time as Court may allow 11.08(1)(b)  Third party who files appearance, on the same day, serve sealed copy of the notice of appearance on the plaintiff 11.08(2) o Defence: TP who files appearance shall serve defence to SOC within 30 days of filing appearance 11.09(1) o Counter-Claim by Third Party: TP who has claim against D may assert by counterclaim and rule 10.02 shall apply as if claim by TPN were proceeding commenced by write 11.10(1)

61 | P a g e

Where D has served counterclaimed, Order shall apply as if D were P and P were D 11.17 Against Non-Plaintiff Party Where D wants to sue someone who is already a party, but not a P in the proceeding – See pink diagram below Where party claims against another party to proceedings, may make claim by filing and service notice  within 60 days after the service on the party of the document in the proceeding by which the claim in respect of which the notice is served was made 11.15(1)(a)  or if document was served when the other party was not a party, within 60 after party became a party 11.15(1)(b) Will NOT apply where claim could be made by counterclaim 11.15(2) No appearance shall be necessary to a notice under 11.15(1) if party has already filed an appearance in the proceeding or is a plaintiff 11.15(3) Where a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice under paragraph (1) shall be in accordance with Form 11B. 11.15(5) 

•

Claim o o

o o o

Use in situations where D wants to sue someone who is already a party, but not a plaintiff to the proceedings. Similar to third-party procedure, but technically different. IF TRYING TO JOIN: Complete outsider: Third Party Procedure Plaintiff: Counter-claim Someone else involved in the action: Counter-Claim Someone already in the action but not the plaintiff: 11.15

62 | P a g e

AMENDMENT, ADDITION, SUBTRACT, REMOVE AFTER WRIT IS FILED WHAT IS IT? • Changing a writ AFTER it has been filed • C.f. Joinder which occurs BEFORE the writ is filed CONTEXT • Where a name was spelt wrong in the writ • Adding a party etc EXAM •

2 ways to amend a writ after it has been filed o Order 36 Amendment

o

 Better as allows circumvention of limitation period  Usually used when there is a technical defect Rule 9.06 Add, Subtract, Remove 

Changing something substantial like the cause of action/adding a party

AMENDMENTS: ORDER 36 WHAT IS IT? • Amending a technical mistake AFTER the writ has been filed CONTEXT • Where a name was spelt wrong in the writ • A typo in the writ etc GENERAL RULE • Rule – When are amendments allowed? o Court may order amendment of document at any stage for the purpose of:

•

•

•

 Determining question in controversy 36.01(a)  Correcting any defect or error 36.01(b)  Avoiding multiplicity of proceedings 36.01(c) What is a ‘Document’ o ‘Document’ includes originating process, indorsemsent of claim on originating process, pleading 36.01(2) New Cause of Action Arising AFTER the Proceeding Commenced o Can add or substitute a cause of action arising after commencement of proceeding 36.01(3) Correcting a Mistake o Can correct a mistake in name of a party, even if it results in substituting parties 36.01(4) o Where correction is to name of a party (substituting another person), proceeding is taken to have commenced with response to that person

63 | P a g e

36.01(5) LIMITATION PERIOD • Where Limitation Period has Expired o Court may make an order under 36.01(1) even if the relevant limitation period has expired 36.01(6)

ADDITION, SUBSTITUTION AND REMOVAL: ORDER 9 WHAT IS IT? • Adding, substituting or removing a party AFTER the writ has been filed CONTEXT • Same as joinder, but for AFTER the proceeding has been commenced GENERAL RULES • Interpretation o Court will refer to 9.02 (joinder) in applying 9.06 • Timing o P or D may add, remove or substitute a party at any stage of the proceeding 9.06 • Limitation Period o P can use 9.06 after the limitation period has expired, but D will be able to use the defence of ‘limitation period’  P will have to seek an extension of time o C.f. Order 36 amendment in which you can amend after limitation period REMOVAL, ADDITION, SUBSTITUTION • Removal o Court may order a person not a proper or necessary party cease to be a party 9.06(a) • Addition o If adding P2, you need P2s consent in writing 9.07(1) o Court will only allow a party to be added if: 





i) They should have been joined 9.06(b)(i) • Apply compulsory joinder test under 9.03 OR ii) There presence is necessary to ensure all Qs are effectually and completely determined and adjudicated upon 9.06(b)(i) • Apply permissive joinder test under 9.02 • Tougher to prove for D OR iii) The person and any party to the proceeding may have a question between then arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine 9.06(b)(ii)

64 | P a g e

• • •

To determine J&C apply 9.02 o Argue efficiency – saves time and money Look at inconvenience under 9.04 o Evaluate prejudice to other party (delay)

Substitution o A person under para B (addition) can be substituted for one under para A (removal) 9.06(c)

CONSOLIDATION WHAT IS IT? • 2 or more proceedings on the same issues/matters that are pending in court can be consolidated into 1 proceeding CONTEXT • E.g. P sues D1 and D2 in two separate cases for the same cause of action on the same facts GENERAL RULES • When can this be used? o Where 2 or more proceedings pending in the Court and:  

•

•

Common question of law/fact arises in all/both of them 9.12(1)(a) OR Rights to relief claimed arise out of same transaction/series of transactions 9.12(1)(b) OR Desirable in circumstances 9.12(1)(c)

 Discretion o Generally subject to discretion of the judge 9.12(2) o Exception: Court MUST join if it would have been proper to join the claim between the P in the current proceeding and the parties in the second proceeding Bolwell Effect o The court may order the proceedings be: 9.12    

Consolidated Tried at the same time Immediately subsequent Any proceedings stayed until determination of another proceeding

AMICUS CURIAE AND INTERVENERS INTERVENERS (SEEKS TO JOIN THE PROCEEDING) WHAT IS IT? • A non-party seeks to join the proceeding o NP with no direct involvement in the transaction that forms the dispute wishes to be involved 65 | P a g e

o

Thus has issues effected, but can NOT use joinder as they don’t meet the requirements

CONTEXT • Insurance company who may have to pay insurance depending on the outcome • Another business in the industry affected by the decision GENERAL RULES • Leading Line o NP joins ongoing litigation without the permission of the original litigants • Rationale o Judgment may affect the rights of NPs, who therefore should have a right to be heard • TEST o Use the addition test in 9.06(b) Can be used by an intervener, where that intervener’s legal rights may be affected Where someone cannot show their interest, more appropriate that they are amicus curiae Levy v Victoria 

o •

•

Effect o An intervener is a party to the case (Not a P or a D, but an I, which is a category in itself) o I can examine witnesses Statute o Some powers of intervention are given in statute (e.g. ACCC, HREOC, AG) and therefore no leave is required

AMICUS CURIAE (FRIEND OF THE COURT WHO IS NOT A PARTY) WHAT IS IT? • Friend of the court who is NOT a party, but can offer a submission on law or relevant fact to assist the court CONTEXT • Community organisation affected by the decision GENERAL RULES • Leading Line o A person who is willing to offer the Court a submission on law or relevant fact that will ‘assist the Court in a way which the Court would not otherwise have been assisted’ Brennan CJ in Levy v Victoria • TEST o TEST  AC will be heard when the Court is of the opinion that it will be significantly assisted by the AC o Application  Assessed by considering delay and cost  Granted provided that any cost to parties or delay is not disproportionate to the assistance that is expected

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LEADING CASE • Levy v State of Vic (1997) o Regulations under the Victorian Wildlife Act 1975 & Conservation, Forests & Lands Act 1987 made it an offence to be within an area set aside for the hunting of game birds at the beginning of the hunting season without a licence o Laurence Levy opposed duck shooting and in June 1994, at the start of the duck shooting season, he was charged with being in a hunting area during a prohibited time without a licence o Levy claimed he was in the area at the relevant time to collect dead and wounded ducks legally shot, as well as dead and wounded endangered species illegally shot o He also argued he was attempting to draw media attention to the cruelty of duck shooting & influence peoples’ political judgment towards the Gov's continued support of duck shooting o Mr Levy argued that the regulation under which he was charged was invalid as it infringed the implied freedom of political communication o Court Held (Levy loses)  

6 separate judgments – All 7 members of the HC upheld the regulation Amicus will be heard when: • Court is of opinion that it will be significantly assisted; • Provided that any cost to the parties or delay is not disproportionate to the assistance that is expected

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6) REPRESENTATIVE PROCEEDINGS (GROUPS AS PARTIES) WHAT IS IT? • There are 3 ways to have multiple people in one party o 1) Joinder/Addition (discussed above) o 2) Order 18 Same Interest Proceedings o 3) Part 4A Class Actions • This topic will discussion Order 18 and Part 4A CONTEXT • Look at joinder first o If Joinder is inconvenient or impossible, look at order 18 or part 4A • If more than 7 Ps, look at Part 4A • If you want D as the representative party use Order 18 GENERAL RULES • If, under Order 9, joinder of several parties would be inconvenient or impossible o Two types of proceedings to consider:  Traditional ‘same interest’ proceedings (Order 18 SCR)  Class actions: • FC ‘opt out’ proceedings (Part IV A Federal Court Act) • VSC ‘opt out’ proceedings (Part 4A Supreme Court Act) ‘SAME INTEREST’ PROCEEDINGS WHAT IS IT? • Where numerous Ps or Ds have the same interest in a proceeding they can all have their interest represented by some of all of the Ps/Ds CONTEXT • Less than 7 Ps where all Ps are not identifiable • Can be used by P and D EXAM • • • •

Leading line Does P/D have the same interest? Define the class Courts discretion to refuse

SAME INTEREST PROCEEDING • Leading Line o Numerous Ps  Where numerous Ps have the same interest in a proceeding 18.01(a) the proceeding may be commenced by any one or more Ps with the SI, representing some or all of them 18.02 68 | P a g e

o

Numerous Ds

Where numerous Ds have the same interest in a proceeding 18.01(a) the proceeding may be commenced against any one or more Ds with the SI as representing some or all of them 18.02 Estate of a Deceased Person / Property Subject to a Trust o Same applies for proceedings regarding the:  Administration of the estate of a deceased person 18.01(a)(i) OR  Property subject to a trust 18.01(b)(ii) Defining ‘Same Interest’ o Previously  Narrow interpretation • Will not be satisfied where proceedings brought on behalf of P’s under separate but otherwise identical contracts Markt (UK COA) o Requires common interest, grievance and remedy o This prohibits proceedings where claims arise out of separate contracts, and the remedy sought is damages o Now  Broad interpretation (overruled Markt) • Satisfied where there is a “community of interests between the plaintiffs and the class” (Brennan J) in any substantial question of law or fact Carnie v Esanda (HCA)  Analysis • P’s Affected in the same way o All Ps were affected in the same way if the Ps received judgment, and therefore there is a community of interest Brennan J in Carnie • Should be interpreted in light of its purpose o Facilitating administration of justice by enabling parties to have SI to secure a determination in one action Per Mason CJ, Deane and Dawson JJ in Carnie • Common question and equally effected o SI where there is a significant question common to all members of the class and they stand to be equally affected by the declaratory relief which the appellant seeks Per Toohey and Gaudron JJ in Carnie  Separate Contracts • Is NOT a bar to SI Carnie  Where Damages are Sought • Carnie has no claim of damages – thus it is possible the Markt narrow interpretation will still apply in defining SI in a seeking damages where individual assessment of those damages for each P is required • Although given the courts focus on convenience and flexibility its possible a broad view would be preferred anyway • As it turns out, irrelevant because of S33C(2)(a)(iii) Only applies to class actions with 7+ Define the Class o Rule  There is NO need to ID every member of the class, although they much be identified with sufficient particularly Carnie (Per Toohey & Gaudron JJ) 

•

•

•

69 | P a g e

E.g. Class is all people who have tapped your mum (this is NOT ok – no sufficient particularity, unless your mum kept a list?)  E.g. Class is those people with a loan agreement with the D, which is inconsistent with the Credit Act (this is ok)  E.g. Class is all members of the St Kilda Tennis Club as at 3 June 2001 (this is ok) Courts Discretion (quick) o Rule  Court has discretion to disallow representative proceedings r18.02 o Considerations  The effect that being represented has on the pool of Ps and Ds  More likely to allow where declaration is sought as in Carnie 

•

LEADING CASES • Markt v Knight Steamship (1910) Eng COA (Overruled by HCA in Carnie) o Facts:  Defendant was a ship and carried large cargo from 45 different customers  Ship sunk by Russian war ship during Russo-Japanese war  Ps all lost cargo and sued under UK equivalent of order 18 in a representative capacity for breach of contract and negligence on the part of the shipping company • I.e. P applied to represent its own interest and interest of other 44 victims  Each P had their own contract – 45 separate contracts • Cargo being shipped to different destinations  P alleged they had suffered a common wrong • I.e. One wrongful act which affected all Ps o Held:  P loses – RP are NOT allowed  Even though terms identical, each contract had different cargo and prices etc…  So each claim had to be examined on its individual merits  Fletcher Moulton LJ: • Damages are by their nature a personal remedy, and so no representative action should lie where damages is the main remedy sought •

Carnie v Esanda (1995) HCA o Facts:  Mr and Mrs C (farmers) borrowed money from Esanda Finance to buy farm equipment  Fell behind in payment so re-financed with a revised loan agreement with Esanda to enable them to pay according to their now-reduced means • This agreement had to comply with certain statutory requirements  When they finally defaulted on the new agreement, they sought to set this new agreement aside on the basis that it did not comply with those statutory requirements • Esanda were supposed to disclose certain fees, which were not disclosed, thus the Carnies sought to have it declared void  They did so on their own behalf and behalf of many others who had also entered such agreements with Esanda 70 | P a g e

o

o

Held:  This was an appropriate case for the representative proceeding on the basis of the NSW equivalent of order 18 • O 18 is a “flexible rule of convenience” • Should not be interpreted restrictively  Even though Carnies & represented parties had separate contracts, did not eliminate convenience of finding a common right to a release  Not necessary for representatives to identify every member of the class; just identify class with sufficient particularity • SOC described it as “Those who have a credit, sale or loan contract with respondent that has been varied in a manner inconsistent with the Credit Act.”  Remitted to NSW Supreme Court, and Justice Young required notice to be given to all prospective members of that class  Then the matter settled Analysis  One of the problems of Markt was removed, re separate contract  But the issue of damages was not resolved, as not seeking damages in that case • Still unlikely that you could use Order 18 if seeking damages • As it turns out, won’t need to because of S33C(2)(a)(iii) Only applies to class actions with 7+

CLASS ACTIONS WHAT IS IT? • 7+ Ps are represented by one/some Ps • Brought in to replace Order 18 Same Interest CONTEXT • 7+ Ps represented by one/some Ps • Note that rules are for the FEDERAL COURT and SUPREME COURT only o Use the right set of rules! EXAM • • • • •

Does P meet the Requirements to Bring a Class Action Process of Commencing Opt Out / Notice Discontinue Costs

FEDERAL COURT: OPT-OUT PROCEEDINGS (FEDERAL COURT ACT PART IVA) DEFINITIONS • From S33A o Representative Proceedings o

 Proceedings that part IVA allows for are Representative Party 

Person who commences the proceeding 71 | P a g e

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Group Members 

Members of group on whose behalf the proceeding is commenced

• Applicant AND Respondent REQUIREMENTS TO COMMENCE CLASS ACTIONS • 3 Requirements to Commence Proceedings (from S33C(1)) – Must have all 3 o 7+ Ps have Claim Against the Same R  Numbers of Ps • Rule o There must be 7+ Ps who have claim against same R 33C(1)(a) • If Less than 7? o If less than 7 use joinder • 7 or 8? o Where there are 7 or 8, might want to use joinder as if any 1 or 2 Ps drop out then class action fails  All Ps have Claim Against all Rs • Rule o Each member of the group must have a claim against every respondent Sackville J in Philip Morris (followed by Rod Investments) • Criticism o Heavily criticised by Finkelstein J in Bray v Hoffman-La Roche (VLRC agrees with Finkelstein) o Argued it has effect of defeating purpose of s33C o Suggested that so long as everyone has an action against someone else, the section should apply (as long as requirements met) o Similar/Related Circumstances  Rule • The claims are all in respect of, or arise out of, the same, similar or related circumstances 33C(1)(b) o Substantial Issue of Law or Fact  Rule • The claims of all Ps give rise to a substantial issue of law or fact 33C(1)(c)  Multiple Issues? • Where multiple issues, just have to show that one of them is substantial Johnson Tiles v Esso PROCESS OF COMMENCING • Things that don’t Affect RP o Relief Sought does NOT affect RP  RP can be commenced whether or not the relief sought is: • Equitable S33C(2)(a)(i) • Consists of damages S33C(2)(a)(ii) • Includes claims for damages that required individual assessment S33C(2)(a)(iii) o Note this addresses the Markt/Carnie problem – RP can apply for proceedings seeking damages that need to be individually assessed • The same or different for each person represented S33C(2)(a) (iv)

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Separate K’s/Transactions/Acts/Omissions does NOT affect RP  RP can be commenced whether or not the proceeding: • is concerned with separate Ks/transactions between R and individual group members S33C(2)(b)(i) • involves separate acts/omissions of R in relation to individual group members S33C(2)(b)(ii)

Originating Process o Writ  Must be commenced by writ (not originating motion) s33H(1) o Endorsement on the Writ  Endorsement on the writ must include: s33H(2) FCA • (a) describe or otherwise identify the group members to whom the proceeding relates; AND • (b) specify nature of the claims made on behalf of group members and the relief claimed; AND • (c) specify the questions of law or fact common to the claims of the group members o Names and Numbers in the Group  Not necessary to name the members or specify the number of people in the group s33H(3) o Standing  All Ps must have sufficient standing to commence proceedings on their own behalf s33D FCA

OPTING OUT + NOTICE • Opting Out o Policy  Potential RJC issues as if P1 is a member of a group in a proceeding that is brought, P1 is bound by the decision of that proceeding and can NOT reopen the case  System could either be opt-in or opt-out • Opt-in: members of the representative group must elect to join the group • Opt-out: members bound by judgment unless they opt-out (used in Aus) o Opt-Out Rules  Rule • Group member may opt out of the representative proceeding by giving written notice s33J(2)  Court to Fix Opt-Out Date • Court must have fixed a date before which a group member can opt out s33J(1) • Except with leave of the Court, trial must not commence earlier than the opt out date s33J(4) • Court can extend the period to opt out s33J(3)  Notice • Notice must be given to group members in relation to: s33X(1) o The commencement of proceeding o The right of group members to opt out o The opt out date

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Can be given by any means (I.e. ad in the newspaper) Court should not order personal service, unless satisfied that is reasonably practicable and not unduly expensive s33Y(4)

DISCONTINUATION OF PROCEEDINGS • Rule o Court can order the proceeding discontinue where:  Group number drops below 7 s33L FCA  Costs of identifying and distributing proceeds would be excessive s33M FCA:  Interests of justice require it because s33N FCA • (a) costs would exceed costs of individual proceedings; OR • (b) relief can be obtained by means of proceeding other than representative proceeding; OR • (c) Won’t provide efficient & effective means of dealing with claims of group member; OR • (d) Otherwise inappropriate that claims be pursued by means of a RP • Discretion Required o Cannot discontinue representative proceedings or settle unless get approval from the Court s33V COSTS •

Group Members and Costs o Can be ordered against representative party (P) or respondent (D) but not against the group member s43(1A)  Federal Court Act: s 43(1A)  o

Supreme Court Act: s 33ZD

Exception: sub-groups – ss 33Q & 33R what is this 

Court can create a sub-group within the RP if there are specific issues to be isolated within the group



The court may elect P1 to be RP of the sub-group •

If court does this, P1 is liable for costs associated with the subgroup instead of the main P representing the whole class

LEADING CASE • Phillip Morris v Nixon (2000) FFC o Facts  Representative proceeding commenced on behalf of a group of people who suffered a disease caused by smoking  Ps claimed to have been induced to begin/continue smoking by the actions of one or more of the three tobacco companies they names as respondents o Problem  Conduct of respondents was not collective conduct  Three separate companies all running their own businesses, producing their own ads, all had same sort of product and same goal  Each P smoked different brands, changed brands, induced to start and continue for different reasons • But all applicants didn’t have claim against all R’s 74 | P a g e

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Held  Sackville J: If the individual claims of each member of the represented group had to be pleaded by reference to specific dates and events, the representative procedure might well be rendered ineffective for the very kind of group claim it is intended to facilitate.  Each group member must have a claim against every respondent

SUPREME COURT ‘OPT OUT’ PROCEEDINGS: SAME RULES APPLY SAME • • •

Relevant section is Part 4A Supreme Court Act o Exactly the same sections as FCA, but using the SCA Came into operation in 2000 Based on Part IVA of the FCA – also an opt out system

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7) SERVICE WHAT IS IT? • Procedure by which the P informs the D of the claim being made against the D CONTEXT • Different rules apply for: o Different types of Ds (special party: disabled, company, minor, gov, partnership, foreign) o Different types of actions o Service outside the jurisdiction (Vic, another state, another country) EXAM • •

• • •

Intro – Special Party? What document? Location? Personal/Ordinary Type of Service: o Personal Service o Ordinary Service o Substituted Service Proof of Service Service Outside Jurisdiction D’s Options Once Served

BACKGROUND • Purpose o Give D notice of the claim so they are aware of it and can take reasonable steps to resist/defend • Exception to Requirement of Service o Applications made ex parte (e.g. Anton Piller order) STARTING POINT/OVERVIEW • 1) Special Party o Is the party to be served a special party?  Corporation  Partnership  Minor  Handicapped  Government (Cwth or Vic)  Motor Vehicle Injuries (TAC) • 2) Out of Jurisdiction? o Is the party to be served within the jurisdiction?  Within Vic  In another State  In another Country • 3) Personal Service o Personal service is only used where it is specifically required: r6.01  Writ  TP notice r11.04(2)  Subpoena on witness r11.04(2)

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4) Ordinary Service o Everything else o E.g. interlocutory applications

SPECIAL PARTIES CORPORATIONS • •

Service effected by leaving with mayor/chairman/president/other head officer/town clerk/ clerk/manager/secretary/other similar officer of the corporation 6.04(a) S109X Corporations Act: Service (including of originating process) may be effected by o Leaving it/posting it to company’s registered office 109X(a) o Delivering copy to director who resides in Australia 109X(b) o Leaving It/posting it to address if liquidator’s office 109X(c) o Leaving It/posting it to address of administrator 109X(d)

FOREIGN CORPORATIONS • •

Registered foreign companies may be served by leaving or posting the originating process to the address of the local agent 601CX Corporations Act Only applies if the local agent is in the current jurisdiction

MINORS •

Personal service on U18 is effected by serving a parent/guardian of the minor, and if there is none, on the person on whom the minor resides or in whose care the minor is 6.04(b)

HANDICAPPED PERSONS •

Effected by serving it on a litigation guardian (if there is one), or where there is none, the person with whom the party resides or whose care s/he is in 6.04(c)

COMMONWEALTH GOVERNMENT •

Effected by serving it on secretary of the AG’s department or Australian Government Solicitor 6.04(d)

VICTORIAN GOVERNMENT •

Effected by serving it on the Australian Government Solicitor 6.04(e)

PARTNERSHIPS •

•

Where 2 or more persons carry on business as partners in Vic, they may be sued in firm name 17.01(1) o Any person carrying on business within Victoria in a name or style other than that person's own may be sued in that name or style as if it were the name of a firm, and Rules 17.02 to 17.09 shall apply, with any necessary modification, as if that person were a partner and the name in which the person carries on business were the name of that person's firm. 17.10 Originating process against partners in the firm name under 17.01 may be served on 77 | P a g e

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Any one or more of the partners 17.03(1)(a) or any person at the principal place of business in Victoria who appears to have control or management of the partnership business 17.03(1)(b) Whether or not any partner is out of Victoria 17.03(2)

MOTOR VEHICLE INJURIES •

For personal injury or death arising out of a motor vehicle accident, the originating process must be served on the defendant and the TAC 6.05

PERSONAL SERVICE WHAT IS IT? • A specific type of service that is required in certain circumstances CONTEXT • Look o o o

for: Writ TP Notice Subpoena on Witness

WHICH DOCUMENTS • Rule o Only the documents that are required/permitted to be served personally, need be served personally including: 6.01  Originating process must be served personally 6.02(1)  Third Party Notice must be served personally 11.04(2)  Subpoena on a witness must be served personally 42.05 o Other Documents Not Requiring Personal Service 

•

You can serve other documents personally but will not retrieve costs where unnecessarily incurred

Originating Process o Originating process must be served personally, on each D, except where provided 6.02(1)  Copy shall be sealed in accordance with 5.11 6.03(2)  Not necessary to show an original document, in order to effect personal service 6.03(4) o An originating process must be served within 12 months of issue unless extended by court order, otherwise it becomes stale 5.12

HOW TO EFFECT PERSONAL SERVICE • First Attempt at Personal Service o Effected by leaving a sealed copy of the document with the person to be served 6.03(1)(a) • Second Attempt (If person does NOT accept first attempt) o If person doesn’t accept, put copy down in person’s presence & telling them nature of doc 6.03(1)(b) 78 | P a g e

“This notice is to give you warning of that fact. I intend to push the notice under the door for you” Grazcyk v Grazcyk (did not say it was a writ, but did say the nature of the document, which was held to be valid service) Must Ensure the Person to be Served get Notice 

o

‘Ensure originating process in form of a document will come to the notice of person named as a party so that any later default in defending D’s position is fairly to be attributed to a decision of that person’ Kirby ACJ in Ainsworth v Redd Alternatives to Personal Service o Solicitor Makes Notes 

•

o

Where solicitor, with authority, makes notes on the copy of the document that document is accepted on behalf of D, service will be taken to have been served on D on the day solicitor made the note 6.09(2)  Applies regardless whether document required to be served personally or not 6.09(1) Comes to the Notice of the Person to be Served

o

Where, for any reason, a document hasn’t been served in manner required by Rules but has come to the notice of the person to be served, document shall be taken to have been served on the day it came to the person’s notice 6.11 Agreement to Service







Where there is an agreement to service, service in accordance with the agreement will suffice 6.14

LEADING CASES • Ainsworth v Redd (1990) o Facts:  D was an American who was being sued for defamation  D was in Australia for purpose of obtaining a poker machine license  Process server held out writ and said ‘these documents are for you’  D appeared to look at the documents, but did not take them  D’s American lawyer took it, thinking it had something to do with the poker machine license o Issue  Had personal service been effected? o Held (Kirby ACJ):  Service is valid under (a) but not (b)  (re 6.03(1)(a)) – ‘the law presumes that the person will become aware of the document. Self-interest may then be relied upon to ensure that an appearance is entered and a defence mounted, if that is desired.’  (re 6.03(1)(b)) – ‘the person may walk away refusing to pick up the document which is set down in that person’s presence. In those circumstances, to fix the person with all of the consequences that may follow, the law understandably requires that the “nature of the document” should be described.’  To conclude that the service was invalid would frustrate purpose of rule  Relevant object is to ensure that originating process in form of a document will come to the notice of person named as a party so that any later default in defending the D’s position is fairly to be attributed to a decision of that person. 79 | P a g e

ORDINARY SERVICE WHAT IS IT? • A specific type of service that is used when personal service is NOT required CONTEXT • Look for: o Generally used for later proceedings (not initiating) o Most things except OPs ORDINARY SERVICE • Rule o Where personal service is not required, documents may be served by: Leaving at Address • Leaving document at proper address of the person to be served; 6.07(1)(a)  Posting • Posting the document to the person to be served at the proper address; 6.07(1)(b)  Company – In Accordance with Act • Where provisions are made by/under any Act for service of a document on a corporation, serving in accordance with that provision 6.07(1)(c)  DX • Where a solicitor has facilities for the reception of documents at a document exchange (DX) by leaving the document in that DX 6.07(1)(d)  Fax • Where the solicitor has fax facilities, sending it by fax.6.07(1) (e) Proper Address for Service o Proper Address 

•

Where a person to be served has no address for service, then the proper address is: • Individual o An individual’s usual or last known place of residence or business 6.07(2)(a) • Individual being Sued in Firms Name o Principal or last known place of business of a firm 6.07(2) (b) • Corporation o The registered or principal office of the corporation 6.07(2)(c) No Address 

o

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

Where a party is in default of appearance, or has no address for service, the filing of the document shall have the effect as service of the document on that person R6.12(1)

SUBSTITUTED SERVICE WHAT IS IT? • Where personal/ordinary service is impractical, the court can allow steps be taken to bring the documents to the notice of the person to be served CONTEXT • Used where personal/ordinary service is impractical o Extensive efforts to serve personally o Cost/geography/time factors SUBSTITUTED SERVICE • Rule o Where it is impractical to serve under the Rules, the Court may order that steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served R6.10(1) SCR • Where Person to be Served is Outside Vic o Substituted service can be made notwithstanding that the person to be served is out of Victoria or was out of Victoria at the commencement of proceedings R6.10(3) SCR • When will an Order for SS be Made? o An order for substituted service should not be made unless it appears: A) That there exists a practical impossibility of actual service; • P must show extensive efforts were made to effect personal service Munkarra v Fischer • Merely cost and geographic spread of Ds will not be enough; however, if there is a time limit, that might make actual service impossible Amos Removals & Storage v Small  B) That the method of substituted service asked for is one which will in all reasonable probability, if not certainty, be effective to bring knowledge of the writ to D; and  C) But for practical difficulties, personal service is legally permissible Methods of SS o Criteria 

•

 o •

Is there a reasonable belief that the method will bring the proceedings to the knowledge of D?

Form

 Post, newspaper notice, serve a close friend of D, facebook? Process of Seeking SS o Ex parte application supported by affidavit justifying the application including:  

Details of attempts that have been made to serve; AND The proposed method of substituted service

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If SS ordered, service usually deemed to be effected after the expiration of a specified period after compliance

LEADING CASE • Amos Removals & Storage v Small (1981) o Facts:  

o

P sought an injunction against 19 D’s who were committee members of a union P said personal service impracticable because: • Cost of effecting service on 19 Ds (not overly relevant); • Geographical spread of defs (didn’t carry much weight); • Short period of time within which service had to be effected (made personal service impractical)

Held: 

Leave granted to effect substituted service on a solicitor acting for D’s in other proceedings

PROOF OF SERVICE WHAT IS IT? • Proof that D has been served in the form of an AOS CONTEXT • Used where: o D fails to put in an appearance; OR o D argues service did NOT occur AFFIDAVIT OF SERVICE • Content of the AOS o An affidavit of personal service must state: R6.17(1) SCR     •

Process o AOS is completed and signed by the person who served, immediately after service takes place R6.17(1) SCR o Must exhibit a sealed copy of the originating process R6.17(3) SCR 

•

(a) by whom the document was served; (b) the hour of the day, the day of the week and the date on which it was served; (c) the place of service; and (d) the way the person served was identified

This means you show the sealed copy of the OP when filing the AOS

Posting o Service is deemed to be effected when the process would have been delivered unless proved to the contrary o Per R6.07(5) SCR: For post  deemed 4 working days after posted, or in the ordinary course

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SERVICE OUT OF THE JURISDICTION WHAT IS IT? • Serving someone who is not in Victoria OUTSIDE VIC, BUT WITHIN AUS • Intro Crap o Territories are Treated as States Territories are regarded as states for the purpose of the Act s5 Service and Execution of Process Act 1992 (Cth) (SEPA) o Cross Vesting (Remember?!)  The court may order a stay in proceedings if there is a more appropriate court to determine the matter s20(4) SEPA Individuals o Rule  An originating process issued in a state/territory can be served in another state/territory without the leave of the Court s15(1) SEPA o Effect  Service has the same effect, and may give rise to the same proceedings, as if it had been served in the place of issue s12 SEPA o Which States Rules Apply?  The state in which proceedings were issued  Service on an individual is effected the same way as service in the state where proceedings were issued s15(2) SEPA Company o Service is effected by leaving it at or by sending it by post to the company’s registered office as per the rules above, regardless of what state the office is in s15(3) SEPA (referring to S9 SEPA) o Business Presence in Vic  If Co has BP in Vic, use r6.04a above and s10 SEPA (referred to in s15(4)) 

•

•

OUTSIDE OF AUS • Rule o Originating process may be served out of Australia without leave of the Court where one of the nexus requirements are met R7.01(1) SCR o OP must include endorsement indicating which nexus factor is met so that D can respond • Nexus Requirements o (a) the whole subject matter of the proceeding is land situated within Victoria (with or without rents or profits) or the perpetuation of testimony relating to land so situate; o (b) any act, deed, will, contract, obligation or liability affecting land situated within Victoria is sought to be construed, rectified, set aside or enforced in the proceeding; o (c) any relief is sought against a person domiciled or ordinarily resident within Victoria; o (d) the proceeding is for the administration of the estate of a person who died domiciled within Victoria or is for any relief or remedy which might be obtained in any such proceeding; o (e) the proceeding is for the execution, as to property situate within Victoria, of the trusts of a written instrument of which the person to be 83 | P a g e

•

•

served is a trustee and which ought to be executed according to the law of Victoria; o (f) proceeding brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a K, or recover damages or other relief in respect of breach of K, and K  (i) was made within Victoria;  (ii) was made through an agent carrying business within Victoria;  (iii) is governed by the law of Victoria o (g) proceeding brought in respect of a breach committed within Victoria of a K o (h) proceeded is founded on a K which the parties agreed that the Court should have jurisdiction o (i) proceeding founded on a tort committed in Victoria o (j) the proceeding is brought in respect of damage suffered wholly or party in Victoria and caused by a tortious act or omission wherever occurring o (k) injunction sought ordering D to do or refrain from doing anything within Victoria o (l) proceeding is properly brought against a person duly served and another person is a necessary or proper part of proceedings – KEY o (m) proceeding either brought by a mortgagee seeking sale of properly or mortgagor seeking redemption, but does not seek any personal judgment or order for payment of any moneys due under the mortgage o (n) proceeding brought under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Service Requirements o Need NOT be Personally Served  Can be served: • Personally according to the law in Vic OR • In accordance with the law of the country in which it is served R7.03 SCR o No Appearance  Where no appearance is filed, P may be allowed to proceed if they have complied with R7.01 R7.04 SCR o Convention  Service may be affected in a foreign country pursuant to a Convention R7.09-7.15 SCR Setting Aside Service Outside Aus o D may apply to have the Court (per R8.09 SCR) set aside service of the writ; or stay the proceedings on the ground that R7.05(2) SCR  (a) Service was not authorised by the Rules; OR  (b) Victoria is not a convenient forum (look at FNC)

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8) APPEARANCE WHAT IS IT? • Procedure by which D informs P that he intends to defend the proceedings o If D does not wish to defend, he does not make an appearance and default judgment may be entered against him CONTEXT • D’s response to being served with an OP EXAM STRUCTURE • Intro Crap • D’s Options to Respond to Service

INTRODUCTION TO APPEARANCE APPEARANCE • What is it? o Procedure used to inform P that D intends to defend proceedings o If D does not enter an appearance, a default judgment may be entered against him 21.02 • Purpose o Informs Plaintiff that the action will be defended o Gives name of the Defendant’s solicitors o Provides address where service can be effected on the defendant WHO MAY ENTER AN APPEARANCE? • Defendant o May file an appearance in person or through D’s solicitor 8.03 • People under disability o Litigation guardian can enter D’s appearance 15.02(1) • Corporation o May be filed by any person duly authorised 8.03(2) • Partner sued in firm name o Own Name o

 Partner must appear individually or in his/her own name 17.04 Served as Manager

o

Person served with originating process as person having control/management, may not file an appearance unless that person is a partner 17.05 Served as Partner 

Person served as partner, may file appearance stating they file as a person served as a partner 17.06(1)(a) Third Parties o Must also enter appearances within the time limited for appearance 11.08(1) (a) or within such further time as Court may allow 11.08(1)(b) 

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Persons Added/Substituted o Must also enter an appearance 9.11

PROCESS • Contents o Must contain name and address or contact details of person entering an appearance 8.06 • Form, File and Serve o Should used Form 8A or 8B filed in the court registry and served on the P • D can NOT Act Until Filed Appearance o D shall not take any steps in proceedings unless D has filed an appearance 8.02 TIME FOR APPEARANCE • Rule o If D does not enter an appearance in the time period, default judgment may be entered 8.04  The time period must be mentioned in the OP served by P o D can enter an appearance late as long as default judgment has not been entered 8.07(1) • Time Periods o Served in VIC o

 Not less than 10 days after service 8.04(a) Served out of Victoria but in Australia

o

 21 days after service 8.04(b) Served in NZ, PNG

o

 Not less than 28 days after service 8.04(c) Served Anywhere Else 

Not less than 42 days after service 8.04(d)

DEFENDANT’S OPTIONS AFTER BEING SERVED 3 OPTIONS • D has 3 options after being served with an OP o 1) Do Nothing o

 Default judgment may follow 2) Enter An Unconditional Appearance

o

 Indicates that the action is to be defended  Must provide an address for future documents to be sent to  Waives any irregularities and submits to the jurisdiction 3) Enter A Conditional Appearance  

Indicates the action is to be defended Objects to the court’s jurisdiction

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DO NOTHING D DOES NOTHING • No Appearance o If D does not enter an appearance, a default judgment may be entered against him 21.02

UNCONDITIONAL APPEARANCE ENTERS AN UNCONDITIONAL APPEARANCE • Form o Must be set out in Form 8A 8.05(1) o Prothonotary shall seal a sufficient number of copies for service 8.05(2) • Indicates that: o D will defend the proceeding o D Submits to the jurisdiction of the Court • Waives D Ability to Object to: o Court’s jurisdiction o

 I.e. Unable to claim FNC Irregularities in OP

o

 I.e. Unable to object to writ not being completed properly Irregularities in Service  

I.e. Unable to claim writ was served incorrectly Stale writ will be made good by an unconditional appearance Sheldon v Brown Bayley’s Steel Works

CONDITIONAL APPEARANCE WHAT IS IT? • D shows intention to defend but also objects to an irregularity CONTEXT • Irregularity in service o Service interstate not complying with SEPA o Failed to serve personally when required o Etc • D is a foreign head of state who claims immunity • Irregularity in Jurisdiction o D claims FNC • Irregularity in OP o Writ in an incorrect form

ENTERS A CONDITIONAL APPEARANCE • Form o Must be set out in Form 8B 8.08(2) 87 | P a g e

• •

o Prothonotary shall seal a sufficient number of copies for service 8.05(2) Effect o Preserves Ds right to object to procedural irregularities or jurisdiction Court’s Decision o Rule o

 Court will make an interim decision on Ds objections No Irregularities

o

If court find no irregularities, conditional appearance is treated as an unconditional appearance 8.08(3) Irregularities 



If the court finds an irregularity, it can: • Set aside writ or originating motion 8.09(a); OR • Make an order under r46.08 to obtain default judgment where the person did not receive notice or attend 8.09(b); OR • Stay the proceeding 8.09(c)

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9) PLEADINGS WHAT IS IT? • Formal written documents exchanged between parties setting out material facts/legal claims that the parties will make at the hearing • Drafted broad to enable parties to preserve options for trial o But do require a degree of accuracy CONTEXT • Will be given a document and asked whether it complies with requirements o First look at general requirements which apply to all pleadings o Then look at requirements specific to each type of pleading •

Documents that constitute pleadings include: o Writ with special indorsement o Statement of claim o Defence o Grandma’s recipe for ‘special’ brownies o Reply o Counterclaim o Defence to counterclaim o Subsequent pleadings: rejoinder, surrejoinder, rebutter, surrebutter

EXAM STRUCTURE • Intro Crap • Procedure • Formal Requirements + Content • Particulars • Documents o SoC o Defence o Reply • Challenges and Objections • Amendments

INTRO CRAP HEY PLEADINGS, HOW ARE YA? • Purpose of Pleadings o Informs court of matter on which decision is sought o Defines issues so parties know what is in contention o Defines issues to limit the scope of discovery o Parties know which evidence to bring at trial o Avoid parties being taken by surprise (thus avoids additional surprise costs) • Detail o Must be made with ‘sufficient particularity to enable any eventual trial to be conducted fairly to all parties’ Bongiorno J in Gunns

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PROCEDURE TIMING + PROCEDURE • I Like Cheese o SoC o

 P has 30 days from the date that D filed appearance to file SoC 14.02 Defence (+CC if used)

o

D has 30 days after P served SoC to file Defence 14.02 If D counterclaims, must put in same document as defence (“Defence and Counterclaim”) Defence to Counterclaim

o

 P must file and serve Defence to Counterclaim within 30 days 14.07 Reply

o

Any Reply in response to Defence/Defence and Counterclaim must be filed and served by P within 30 days 14.05 Closing Pleadings

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After 30 days of service of the last pleading, pleadings are closed 14.08

FORMAL REQUIREMENTS AND CONTENT FORMALITY REQUIREMENTS • Formality o Description o •

 Must include the description of the pleading 13.01(1)(a) Date

 Must include the date on which it is served 13.01(1)(b) Format o Paragraphs

o

 Must be divided into consecutively numbered paragraphs 13.01(2)  Each allegation must be in a separate paragraph 13.01(2) Signed

o

Each pleading must be signed by barrister or solicitor who drafted it 13.01(3) • The signature is not an oath or affirmation Dates, Amounts, Figures 



All dates, amounts and figures shall be in numbers, not words 27.04

CONTENT REQUIREMENTS • Content o Material Facts 

Rule •

Must contain a summary statement of all material facts on which the party relies 13.02(1)(a) 90 | P a g e

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‘Material Facts’ • This includes ALL facts necessary to prove the cause of action/defence • Does NOT require evidence by which the facts are to be proved

o

Document or Conversation • Must plead the effect of a doc/conv, but don't need precise words if they are not material 13.03 • If there is controversy in relation to the construction of a document, the material words alleged should be set out in the pleadings in full  Facts Presumed True • Do NOT need to plead a fact if it is presumed by law to be true 13.04  Burden on Other Party • Do NOT need to plead a fact if the burden to prove it is on the other party 13.04 • If the other party denies this fact, then you do need to plead it 13.04 Specify Provision of Act

o

Where the claim/defence arises under an Act, the specific provision relied on must be mentioned 13.02(1)(b) Relief or Remedy Claimed







Must specifically state any relief or remedy claimed 13.02(1)(c)

PARTICULARS FORMAILITIES IN PARTICULARS • Necessary Particulars o Rule Every pleading shall contain the necessary particulars of any fact/matter pleaded 13.10(1) Which Particulars are ‘Necessary’? 

o



•

Must • • •

be included if they are necessary to: enable the opposite party to plead; 13.10(2)(a) define the questions for trial; or 13.10(2)(b) to avoid surprise at trial l13.10(2)(c)

Allegations o Rule Pleadings must contain the particulars of any alleged: • Misrepresentation, fraud, breach of trust, wilful default or undue influence; 13.10(3)(a) OR • Disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice 13.10(3)(b) Party Claiming Damages for Bodily Injury 

•

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o

Rule

Pleadings of party claiming damages for bodily injury must state: • Dates & amounts, of earnings lost in consequence of injury complained of 13.10(4)(a) • Particulars of any loss of earning capacity resulting from the injury13.10(4)(b) • The date of the party’s birth 13.10(4)(c) • Employer details for 12 months before injury 13.10(4)(d) Proceeding for Libel o Rule 

•



The indorsement of claim on writ or the statement of claim must identify the publication in respect of which the proceeding is commenced 13.10(5)

COURT ORDERED PARTICULARS • Rule o Court may order a party to serve particulars, or further/better particulars of any fact/matter stated in pleading or in affidavit filed if necessary/desirable to enable other party to plead or for some other special reason 13.11 • In Practice o Party should required F/B particulars from other party before asking the court

SPECIFIC TYPES OF PLEADINGS

STATEMENT OF CLAIM IS A STATEMENT OF CLAIM REQUIRED • TP Notices o Rule   •

Writ o

TP notices must be indorsed with a SOC 11.01 TP notices must comply with pleading requirements 11.02

Special Indorsement (SoC is included in Writ) Where indorsement of claim on writ constitutes a SoC in accordance with r5.04 (that is, where the writ has a special indorsement), no SoC shall be served 14.01 General Indorsement (No SoC in Writ) 

o



Where indorsement of claim on writ does NOT constitute a SoC in accordance with r5.04 (that is, where the writ has a general indorsement), if D files an appearance, P shall serve a SoC on D within 30 days of Ds appearance, unless otherwise ordered 14.02

SOC CONTENT + FORMALITY REQUIREMENTS • Cause of Action o Rule

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•

 SoC must disclose a cause of action Format (There are 3 parts to a SoC) o 1) Introductory Allegations

o

What is it? • Any necessary facts relating to the parties and their relationship to each other  Examples (only use each one where relevant) • Establish capacity if relevant o If using litigation guardian then must be pleaded • Establish connection of party to subject matter, if not obvious • Show a connection between the parties • If suing in representative proceedings then the class must be identified • Etc 2) Substantive Allegations

o

What is it? • All material facts that are needed to prove each cause of action • If there are multiple CoAs, then you need to provide material facts for each CoA  Examples • Breach of K: 1. Agreement was verbal 2. Breach when X did not pay 3. Breach causes damages as Y couldn’t pay bills • Negligence: 1. D owed duty as partners 2. Duty breached because… etc • Battery: 1. Direct physical contact when X hit Y with ball… etc 3) Prayer for Relief





•



What is it? • Identify what relief/remedy is sought from the court



Format • Introduced in capitals ‘AND THE PLAINTIFF CLAIMS:’ • Not numbers – instead it is listed by letter



Example • AND THE PLAINTIFF CLAIMS: o A __________ o B __________ o C __________

Particulars o Particulars are also required – see above

DEFENCE WHAT IS IT? • Defence – The pleading subsequent to a SOC o Responds to allegations made by P in the SOC o Brings up any CC or Set-offs 93 | P a g e

CONTENT • Rule o

Party shall plead any fact/matter which: 13.07(1)   

the party alleges makes a claim/defence of the opposite party not maintainable if not pleaded specifically, might take the opposite party by surprise raises questions of fact not arising out of the preceding pleading

ADMISSIONS AND DENIALS • Must Deny or Else Admitted o Rule D must specifically deny each allegation made in the SOC that they wish to contest  Failure to respond is taken to be an admission 13.12(1) Exceptions 

o

•

 Damages are assumed to be rejected  Need not respond to particulars 3 Ways D can Respond o 3 ways D can respond to each specific allegation in the SOC: 13.12(3) Admit: fact is taken as proven and is not disputed at trial • Qualified pleading: Justify why (Yes I did it, but I was pushed) • Objection on point of law: Point of law (Yes I did it, but limitation period expired)  Do not admit: do not admit, and ask P to prove it  Deny: do not admit and deny it Different Facts to the SoC o Prove Different Facts 

•

If party X intends to prove different facts to those pleaded by the opposing party, then party X shall plead the material facts they intend to prove 13.12(3) Inconsistent Allegations of Fact 

o

A party may make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative 13.09 Denial by Joinder o Define Joinder of Issue 

•

o

Where D disputes a claim by P, the parties agree that the issue is in dispute  Joinder of issue acts as denial against any allegation unless it is admitted 13.13(4) No Reply Need be Served

o

No reply or subsequent pleading merely joining issue shall be served 13.13(1)  P does NOT have to respond with a reply unless he is raising a new allegation or fact JoI Implied at Close of Pleadings







At the close of pleadings a joinder of issue on the pleading last served shall be implied 13.13(2) 94 | P a g e

o

No JoI made on SoC or CC  

No joinder of issue, express or implied, shall be made on a SOC or counterclaim 13.13(3) Because it's the first one – no defence to argue with it

SET-OFF & COUNTERCLAIM WHAT ARE THEY? • Intro o There are 2 ways for D to bring a CoA in his defence document: Setoff and CC SET-OFF (SEE JOINDER NOTES) • Defence Document Formalities o Title is ‘Defence’ o A paragraph within must note the set-off (no sub-headings required) • Not a COA o Set-off is a defence to Ps claim 13.14

•

 Not a separate COA – therefore there is no separate judgment  Need not arise from the same facts – but must relate to money Where Set-off is Greater than Ps Claim o D should also plead the set-off as a counterclaim and ask for judge on the balance 10.09

COUNTERCLAIM (SEE JOINDER NOTES) • Same as SOC o Order 13 applies to a counterclaim as if it were a statement of claim 13.15(a); and a defence to counterclaim as if it were a defence 13.15(b) •

•

Defence Document Formalities o Title is ‘Defence and Counterclaim’ o Subheadings must be included:  1. Defence  2. Counterclaim An Action in Its Own Right o Generally o

 Same rule as a SOC as it is a new action Procedure

o

 Same as SOC  Can only be commenced by writ 10.01  D can CC at any time in the proceeding before judgment 10.02  Prayer for Relief: ‘AND THE DEFENDANT COUNTERCLAIMS:’ 13.15 Life of its Own

Continues if Ps action ends 10.08 Court can separate CC into its own trial if the court believes it will delay proceedings or cause prejudice 10.06 Joinder of Others o In addition to naming P in the CC, D can joinder others in the CC  

•

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o •

TEST: same transaction or series + common question of law/fact

 See joinder for more Limitations o CC is treated as having commenced on the date of the original proceeding S30 Limitations of Actions Act

REPLY REPLY •

Intro o What is it?

o

If the defence raises a new allegation of fact that requires a response more than a mere denial, P may respond in the form of a ‘reply’ When will it be used?

o

Reply is only necessary if: 13.09 • There is a new matter that will make a defence pleaded by the Defendant not maintainable; or • There is a matter arising from the defence that would take the Defendant by surprise if the Plaintiff argued it without specifically pleading it; or • Plaintiff wants to raise questions of fact not arising from the defence Where D files a CC





  •

•

Reply document should also include a defence to the CC Defence to CC follows same rules as a defence to a SoC

Scope o Can only meet the defence o Can NOT raise new COA or allege any matter which is inconsistent with the SoC If No Reply is Filed and Served o All the allegations in the defence are deemed denied 13.13

PLEADINGS AFTER THE REPLY POSSIBLE PLEADINGS AFTER THE REPLY • Order of the Court Required o Can only be served by order of the court 14.06 • Include: o Rejoinder (by D) o Surrejoinder (by P) o Rebutter (by D) o Surrebutter (by P)

CHALLENGES AND OBJECTIONS

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INTRODUCTION • In Practice o Unlikely to summarily dismiss if less drastic measures are available o Usually leave to amend will be granted and an order for costs thrown away subject to AON • Gunns Quote o 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. Gunns

PROCEEDING • Stay / Summary Judgment o Proceeding generally/any claim in a proceeding Court may stay a proceeding or give summary judgment where a proceeding generally, or any claim in a proceeding: 23.01(1) • (a) does not disclose a cause of action; • (b) is scandalous, frivolous or vexatious; • (c) is an abuse of process; or • (d) relates to batman Defence 

o



The Court may give judgment where the defence: 23.01(2) • (a) does not disclose an answer; or • (b) is scandalous, frivolous or vexatious

INDORSEMENT • Indorsement/Pleading o The Court may order that the whole or part of the indorsement or pleading be struck out or amended if the indorsement or pleading: 23.02  (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

AMENDMENT AMENDMENT • Rule o This rule applies to pleadings and originating process 36.01(2) o Court may order amendment/grant leave to amend at any stage of pleadings for the purpose of: 36.01  (a) Determining the real question in controversy between the parties 97 | P a g e

•

•

 (b) Correcting any defect or error in the proceeding  (c) Avoiding multiplicity of proceedings First Amendment Without Leave o A party may amend pleadings once before the close of pleadings (i.e. without leave); and any time with the Court’s leave or consent of all parties 36.03 Amendment o COA Arising after Commencement of Proceeding

o

Can add or substitute a cause of action which arose after the commencement of a proceeding 36.01(3) Mistake in Name

o

A mistake in name of a party can be corrected, even if effect of correction is to substitute another person as a party 36.01(4) Limitation Period

o

 Can amend even if the relevant limitation period has expired 36.01(6) Distinguish from Previous Pleading







Amendment must be distinguished from the previous pleading r 36.05

ETHICAL OBLIGATIONS (ONLY IF RELEVANT ON EXAM) ETHICAL OBLIGATIONS FROM KEARAS NOTES Two sets of duties for the lawyer to consider:

− Duty to the Court − Obligations under the Civil Procedure Act 2010 (Vic)

Duty to the Court • •

An Australian Lawyer admitted in Victoria is an officer of the Supreme Court of Victoria (LPA 2.3.9(1)). Lawyers have a duty to the Court and to the administration of justice, which override the duty to the client (subject to client legal privilege).

This duty includes:

− Duty of candour in disclosing the law and the facts : Practitioners must disclose to the court the law applicable to a case and must not knowingly mislead the court about the facts of a case, or any other matter. − Duty not to abuse the court process : Practitioners must ensure that court processes are not abused or used for ulterior or improper purposes; that is, for purposes other than the vindication of a right of a client. o In White Industries (Qld) Pty Ltd v Flower & Hart (a firm), Goldberg J held that solicitors at Flower & Hart breached their duty to the court and the administration of justice when they “instituted a proceeding on behalf of its client alleging fraud when there was no factual basis for that allegation and in respect of a cause of action which it believed could not be won”. 98 | P a g e

They had done so to buy time for their client and gain a ‘temporary bargaining stance.” − Duty not to corrupt the administration of justice : Practitioners must not engage in, or assist, conduct that is prejudicial to the administration of justice. − Duty to conduct cases efficiently and expeditiously : Practitioners must exercise independent judgment in the conduct and management of cases and cooperate with the court and each other to ensure the speedy and efficient administration of justice. − Duty to comply with personal undertakings : Practitioners must strictly observe personal undertakings given to the court in a professional capacity.

Civil Procedure Act s 16 – Paramount Duty: 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.

s 18 – Overarching obligation-requirement of proper basis A person to whom the overarching obligations apply must not make any claim or 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.

s.42 – Proper basis certification (1) On the filing of a party's first substantive document in a civil proceeding and any document that contains significant amendments to the first substantive document, a legal practitioner acting for or on behalf of a party to the proceeding must certify that, on the factual and legal material available -

(a) each allegation of fact in the document has a proper basis; (b)each denial in the document has a proper basis; (c) there is a proper basis for each non-admission in the document. (3) For the purposes of this section, a determination by a legal practitioner –

(a) As to whether any allegation or denial of fact has a proper basis, on the factual and legal material available, must be based on a reasonable belief as to the truth or untruth of the allegation or denial; or

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(b)as to the proper basis of any non-admission is that the legal practitioner does not know, and therefore cannot say, whether a fact alleged or denial is true or untrue.

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10)

METHODS OF GATHERING EVIDENCE

WHAT IS IT? • The various methods used to gather evidence before a trial • Methods of Gathering Evidence Include: o Discovery o Non-party and preliminary discovery (identify a D, prospective D, non-party) o Interrogatories (questions from one party to another answered under oath) o Notice to admit (parties agree to admit certain facts) o Subpoenas (process to compel a person to attend trial as witness or to produce documents) CONTEXT • Question will ask about the various ways P or D can get a specific piece of information from either the other party or a third party

DISCOVERY EXAM STRUCTURE • Intro Crap • Notice • Affidavit of Documents o Scope o Possession o Other Types of Discovery (Restricted, Particular, Further, Supplementary) o Privilege • Inspection of Documents o Permitted Use of Discovered Docs • Default in Discovery • Document Destruction

INTRO CRAP INTRO CRAP • Leading Line o The process by which all documents relevant to matters pleaded are made available to the other side for inspection • When? o Writ o

 Only applies to proceedings commended by writ 29.01 What is a Document  

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; • (b) any photograph; 101 | P a g e

• • • •

(c) any label, marking or other writing which identifies ….; (d) any disc, tape, sound track or other device in which sounds …; (e) any film (including microfilm), negative, tape or other device in which one or more visual images are embodied …; and (f) 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

NOTICE FOR DISCOVERY NOTICE FOR DISCOVERY • What is it? o Notice given to other party requiring them to make discovery of all documents which are (or have previously been) in that party’s possession, that relate to any question raised by the pleadings 29.02(1) • Who? o Either party can give notice 29.02(1) • Timing o After the Close of Pleadings o

 Notice can be served at any time 29.02(1) Before the Close of Pleadings  

•

Leave of the court is required to serve notice 29.07 Notice served before pleadings close are taken to be served on the day after pleadings close 29.02(3)

Form o Notice for discovery shall be in form 29A 29.02(2)

AFFIDAVIT OF DOCUMENTS – MAKING DISCOVERY WHAT IS IT? • Please tell me, I’m stupid and ill fail civil if you don't? o Fine I’ll tell you… for $20 

TIMING • Rule o

Ok, here it is – “$20” • Thanks. If a party is served notice for discovery, AOD is their response which includes the docs to be discovered

Party served with notice must make discovery within 42 days of service 29.03(a) or the day on which service is taken to have occurred 29.03(b)

FORM AND CONTENT OF AOD • Form o AOD shall be in form 29B 29.04

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•

Content of AOD o AOD must: 





Identify Docs • Rule o Identify the docs which are/have been in the possession of the party making the AOD 29.04(a) • Privileged Docs o Privileged docs must be identified, but their content does not have to be disclosed Order and Describe Docs • Rule o Enumerate (itemise) documents in a convenient order and describe each document 29.04 (b) • Documents in a Group o Group docs of the same nature can be described as a group • Detail o Must be sufficient to enable the doc/group to be identified Docs No Longer in Possession • Define Possession o Possession means possession, custody or power 29.01(2) Possession: Physical/corporal holding of document resulting from right to possession (agent/bailee)  Custody: Mere actual physical/corporal holding of a document, regardless of right to possession (servant/employee)  Power: Enforceable right to inspect or obtain possession/control of document from person who ordinarily has it Rule: Distinguish o AOD must distinguish docs that remain in possession from those no longer in their possession 29.04(c) Docs No Longer in Possession o AOD must: 

•

•

  

State when they parted with document 29.04(c)(i) State what they believe has become of the document 29.04(c)(ii)

Privilege • If AOD claims any docs are privileged, AOD must state sufficiently the grounds for privilege 29.04(d)

SCOPE OF DISCOVERY • What do you mean by Scope? o 1. Scoping out some hotties o 2. Which documents are required to be discovered and therefore included in the AOD • Common Law (No Longer Applies) o Must include Docs that would: Compagnie 103 | P a g e

    •

Be evidence upon any issue in the case Advance the case of the party-seeking discovery Damage the case of the party-giving discovery Possibly lead to a train of inquiry which might advance or damage the case of the party giving discovery

Statute o Summary 

Codifies the CL as above, except that the 4th point (train of inquiry) is NOT included

o

Rule

o

Docs required to be discovered are any of docs in r29.01.01 of which the party giving disc is ‘aware of’ at the time discovery is given 29.01.01 ‘Aware of’ 



o

Rule •

Party giving disc is expected to conduct a ‘reasonable search’ to become aware of relevant documents  Reasonable Search • In making a reasonable search a party may take into account 29.01.01(5) o (a) The nature and complexity of the proceeding; o (b) The number of documents involved; o (c) The ease and cost of retrieving a document; o (d) The significance of any document to be found; and o (e) Any other relevant matter Documents Required to be Discovered by the Party Giving Disc 29.01.01    

(a) Documents on which the party relies; (b) Documents that adversely affect the party's own case; (c) Documents that adversely affect another party's case; AND (d) Documents that support another party's case

OTHER TYPES OF DISCOVERY • Restricted Discovery o Timing o

 Court can order at any time 29.05 Context? 

Policy • Used to avoid abuse of processes



Confidentiality? • Confidentiality alone is usually not enough to deny inspection, because of the implied undertaking that the information is only used for the purpose of the action Mobil So When? • Commercial confidence • Public interest • National security • Party is merely fishing for information



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• o

Party has untoward motives

Rule

Court can order that: 29.05 • Discovery by a party is NOT required OR • Discovery is limited to: o Certain documents; o Certain classes of documents; OR o Certain questions in the proceeding Particular Discovery o Timing 

•

o

 Court can order at any stage of a proceeding 29.08(2) Context  

Where the court believes a party may have (or previously had) a relevant document Party served with AOD believes discovery is incomplete, party will request further AND particular

o

Rule

o

If court has grounds for belief that a document (or class of docs) may be (or previously had been) in the possession of a party, court may order that party sign an affidavit stating: • Whether such docs/class is or was ever in the party’s possession 29.08(2)(a) AND • If no longer in possession, when the party parted with it, and what the party believes has become of it 29.08(2)(b) Define: ‘Court has Grounds for Belief’ 

 o

If it appears to the court at any time from evidence, nature or circumstances of the case

Note:

AOD is a sworn document and therefore carries some weight, thus needs something significant to opine that the party has not completed it in full Further Discovery o Context 

•



Party served with AOD believes discovery is incomplete, party will request further AND particular

o

Rule

o

Where party fails to make discovery or fails to make sufficient arrangements for inspection/copying, court may order the party to do such acts as the case required 29.11 Fails to make discovery/sufficient arrangements includes: 

   

Fails to make discovery in accordance with Rules 29.03 and 29.04 29.11(a) Fails to serve notice appointing time for inspection as required by 29.09 or 29.10 29.11(b) Objects to produce any document for inspection 29.11(c) Offers unreasonable inspection time or place 29.11(d) 105 | P a g e

Objects to allow document to be photocopied or to supply photocopy of document 29.11(e) Supplementary Discovery o Rule 

•

Party who made AOD is under continuing obligation to make disc of docs for any docs obtained by that party after making the AOD 29.15 Context 

o

  

New document created Something was let out originally but is now relevant Etc

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PRIVILEGE • Relevance? o A privileged document has to be identified in the AOD, but does NOT have to be made available for inspection by the other party • Grounds of Privilege o Legal professional privilege o Privilege against self incrimination o Privilege against exposure to penalties & forfeiture o Public interest o Without prejudice communications o Priest and penitent privilege o Marital privilege • Test for Legal Professional Privilege o Rule

o

Document is privileged and therefore protected if: • It is communication which is made predominately for the purpose of obtaining legal advice or use of a lawyer in existing or anticipated litigation Esso Anticipated Litigation

o

Must be a real prospect of litigation, and not a mere possibility Mitsubishi Challenging Privilege







In an application to Court challenging a claim of privilege, Court may inspect documents to decide validity of the claim 29.13

INSPECTION OF DOCUMENTS INSPECTION OF DOCS • What is it? o After AOD is supplied, party is required to produce documents referred to for inspection 29.09(1) • Form o Form 29C: Notice to Produce 29.09(3) • Timing o Party has 7 days from receiving notice to produce to appoint a time within 7 days and a place where the documents may be inspected 29.09(2) • Inspection o Party to whom documents are produced, may take copies of documents 29.09(4)  ‘Taking a copy’ includes photocopying document 29.09(5)  Party producing document may allow other party to photocopy at place agreed upon 29.09(5)(a) or supply other party with a photocopy of document 29.09(5)(b) • Permitted Use of Discovered Documents o Rule 

Generally

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•

o

Implied undertaking not to use discovered document for any purpose other than the litigation in which it is disclosed Esso (Confirmed in Hearne)  Exception • Court can allow use in ‘special circumstances’ – very high standard though Extension of the Rule

o

This rule extends to pleadings, answers to interrogatories, documentary witness statements and material provided under nonparty discovery Ambridge If Documents are Misused 



Solicitors may be liable for contempt of court

DEFAULT IN DISCOVERY DEFAULT • First Failure to Discover o If party X fails to make discovery in period set, other party may serve on party X notice Form 29D: Notice of default in discovery 29.12.1(2) • Failure to Discover After being Served Notice of Default o If party fails to make discovery in 7 days after notice in default being served: Proceedings may be dismissed 29.12.1(3)(a) OR  D’s defence may be struck out 29.12.1(3)(b) o Court will only intervene if behaviour has amounted to an attempt to pervert the course of justice Eames J in McCabe Court can Later Vary o Court may set aside or vary an order made under 29.12.1(3) 29.12.1(6) 

•

DOCUMENT DESTRUCTION INTRODUCTION • 2 Acts o Look at both of the acts CRIMES ACT S254(1) • Rule o Will be guilty of an indictable offence and liable to level 6 imprisonment (5 years) or fine or both, if:  they destroy or conceal or renders it illegible, undecipherable or incapable of identification; or  if they expressly, tacitly or impliedly authorises or permits another person to do so o Requires mens rea • Authority

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o

Crimes Act S254(1) (Inserted by Crimes (Document Destruction) Act 2006)

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT • Rule o If a document is unavailable for any reason (deliberate or not) judges can now:  Strike out claims 89B(2)(d)  Reverse the onus of proof 89B(2)(e)  Assume that certain facts are true 89B(2)(a)  Any other thing the Court thinks is appropriate o Have to balance effect on party who could have used evidence 89C(b) & reason for its unavailability 89C(a) o No need to prove mens rea

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NON-PARTY AND PRELIMINARY DISCOVERY WHAT IS IT? • Disc to ID a D • Disc to establish whether to sue a prospective D • Disc from a non-party

DISCOVERY TO IDENTIFY A DEFENDANT IDENTIFY A DEFENDANT • Context o P knows what COA he wants to sue for, but doesn’t know the identity of the D • When Can it Be Used? o Where an applicant has made reasonable enquiries and is unable to identify a D to bring proceedings against 32.02(1)(a) AND o It appears that a person has relevant documents or knowledge to assist such identification 32.02(1)(b) • Rule o If above is satisfied: 

The Court may order applicant to: 32.02(2) • (a) make discovery of documents • (b) attend court; OR • (c) attend an oral examination

DISCOVERY OF A PROSPECTIVE DEFENDANT PROSPECTIVE DEFENDANT • Context o P uses this to establish whether he has a sufficiently strong claim to issue proceedings against a potential D o Often used in medical negligence cases to view medical records • Rule o Court may order discovery of document   

reasonable cause to believe that there may be a right to obtain relief from a D 32.05(a) after making reasonable inquiries, sufficient information not available to P to decide whether to commence proceedings or not; 32.05(b) AND there is reasonable cause to believe that D has possession of documents 32.05(c)

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DISCOVERY FROM A NON-PARTY DISCOVERY FROM A NON-PARTY • Rule o Court may order a non-party to make discovery of documents if are likely to be in possession of documents relevant to a question in the proceedings 32.07 • Proof Required o Party seeking discover from a non-party must show by affidavit in support that it is likely that the non-party has in their possession documents which relate to a question in the proceeding • Procedure o NP is required to serve an AOD and give inspection the usual way • Practice o Despite wide scope of rule, courts tend to restrict non-party discovery to cases outside the ordinary, where such an intrusion into the affairs of a stranger to the litigation is necessary o NB: P could also ask for a Subpoena to get them to bring the document to court

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INTERROGATORIES, NOTICES TO ADMIT, SUBPOENAS INTERROGATORIES WHAT IS IT? • Series of questions delivered by one party to another party, which the others party is required to answer under oath CONTEXT • Question will give a set of facts and a list of Inters, and ask which of those Inters must be answered (look at scope) SERVING INTERROGATORIES • Formalities o Rule Any party may serve interrogatories on another party, relating to any question between them in the proceeding 30.02(1)  Must be an issue in dispute Timing 

o



When Pleadings are Closed • Inters may be served without leave of court 30.02(2)

When Pleadings are NOT Closed • Court may order any party serve interrogatories on any other party 30.02(3) Further Inters 

o

 •

Court may grant leave to interrogating party to serve further interrogatories 30.02(4)

Scope o Question Between Parties in Proceeding  

Rule •

MUST relate to a question between the parties in the proceeding

Witness Credibility • NOT enough to merely relate to witness credibility

o

Succeed – NOT Merely Assist • NOT enough that the information sought may indirectly assist a case, must relate to matters that must be proved in order to succeed in the claim or defence Names of Witnesses

o

Can NOT be used to ascertain names of witnesses, unless those names are themselves material facts Evidence







Can NOT be used to ascertain evidence the other party intends to call

ANSWERING INTERROGATORIES • Timing

112 | P a g e

Party interrogated has 42 days to file and serve their response by affidavit 30.04(b) Sources of Answers for an Interrogated Party o Rule o

•

Answer from own knowledge of the fact or matter being inquired about 30.05(1)(a) If Interrogated Party does NOT have knowledge 

o









Rule •

Party shall answer from any belief the party has as to the fact or matter inquired after, irrespective of the source of the information on which the belief is formed 30.05(1)(c) NO Belief • Shall be taken not to have a belief as to the fact or matter where: 30.05(1)(b) o The party has no information relating to the fact or matter on which to form a belief OR o Where, if the party has such information, the party has no belief (based on reasonable cause) that the information is true Exception: Privilege • No need to answer where belief is formed on the basis of privileged information 30.05(1)(d) Reasonable Enquiries to Form Belief • Where party has no personal knowledge shall make reasonable inquiries to form belief 30.05(1)(e)

OBJECTIONS TO ANSWER • Rule o Party shall answer each interrogatory except to the extent it may be objected to on any of following grounds:  does NOT relate to any question between the parties 30.07(1)(a)  is unclear or vague or is too wide 30.07(1)(b)  is oppressive (too hard to answer) 30.07(1)(c)  requires the party to express an opinion which the party is not qualified to give 30.07(1)(d)  privilege 30.07(1)(e) DEFAULT • Fail to Answer Inters o Where party fails to answer interrogatories, court may order that they be provided 30.09 • Fail to Comply with Court Order o If do not comply with court order, Form30A ‘Default Notice’ can be served under 30.09.1(2) • Fail to Comply with Default Notice o If within 7 days of this notice being served, interrogatories are not answered court may:  hAVE THE PROCEEDING DISMISSED, IF PLAINTIFF IS IN DEFAULT 30.09.1(3)(a) 113 | P a g e



hAVE THE DEFENCE STRUCK OUT, IF DEFENDANT IS IN DEFAULT 30.09.1(3)(b)

Notices to admit WHAT IS IT? • Party X sends NTA to Party Y specifying facts to be admitted – Party Y must dispute any facts it does not admit, or they will be taken to be admitted NOTICE FOR ADMISSION OF FACTS • Rule o A party may serve on another party a notice for admission of facts (NFAOF) • NFAOF o Doc stating that unless other party disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts 35.03(1) o A NOTICE FOR ADMISSION SHALL BE IN FORM 35A 35.03(4) • Timing o NFAOF will specify a time period in which the other party must respond – the minimum time period is 14 days 35.03(1) • Responding to an NFAOF o Disputing If disputing the fact, disputing party must serve a NOTICE OF DISPUTE  Notice to dispute admission IN FORM 35B 35.03(4) Admitting a Fact / Failing to Respond 

o





Rule •

If party does NOT dispute WITHIN THE TIME PERIOD, PARTY SHALL BE TAKEN TO ADMIT THAT FACT 35.03(2) Withdrawal of Implied Admission • With leave of the court, a PARTY MAY WITHDRAW AN ADMISSION TAKEN TO BE HAVE BEEN IMPLIED BY FAILURE TO DISPUTE 35.03(3)

NOTICE FOR ADMISSION OF DOCUMENT • It's the Same, bro o Exactly the same as above with all sections 35.05 instead of 35.03

COST CONSEQUENCES • Where Disputed Fact is Proved 35.06 o Where a party serves a notice under Rule 35.03(2) or 35.05(2) disputing a fact or the authenticity of a document and afterwards that fact or document is proved in the proceeding, liability for costs shall be determined in accordance with Rule 63.18

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•

•

What Does that Mean? o If a party disputes a fact which is proved later, that disputing party will have to pay the costs of proving the fact Compare NTA with Inters o If you use NTA instead of Inters, and the fact is disputed but then proven, then you get the costs of proving back o You don't get costs with Inters

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Subpoenas WHAT IS IT? • Process used to compel a person to attend trial as a witness, or to produce documents to the court RULE AND FORMALITIES • Initial Stuff o How to Spell Subpoena o

 Like this: Subpoena MUST be Commenced by Writ 

•

Rule o

In any proceeding, the Court, by subpoena, may order the addressee to:   

•

•

Can ONLY BE USED IN CASES WHICH HAVE BEEN COMMENCED BY A WRIT 42.01

Attend the Court to give evidence 42.02(1)(a) Produce any document (or copy of it) or thing for evidence 42.02(1)(b) Both 42.02(1)(c)

Form o Must be in accordance with FORM 42A 42.03(1) o Shall not be addressed to more than one person 42.03(2) o Subpoena to produce SHALL IDENTIFY THE DOCUMENT OR THING TO BE PRODUCED 42.03(4)(a) and specify time, date and place for production 42.03(4)(b) o Subpoena to give evidence SHALL SPECIFY TIME, DATE AND PLACE FOR ATTENDANCE 42.03(5)  Date specified shall be date of trial or any other date as ordered by the Court 42.03(6) Subpoena to Produce Documents o Don’t have to attend trial with subpoenaed documents if they are produced to court registry 3 days before date specified in subpoena 42.06

SERVICE OF SUBPOENA • Service o Personally o

 Must be SERVED PERSONALLY ON THE ADDRESSEE 42.05(1) Timing

o

 Must be served 5 days prior to when attendance is required 42.05(1) Conduct Money 

Rule •

Conduct money must be given TO ADDRESSEE 42.06(1)



What is it? • Money to cover reasonable expenses for attending • NOT PAYMENT FOR TESTIMONY



Failure to Pay Conduct Money

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•

An addressee need not comply with requirements of subpoena to give evidence unlesS CONDUCT MONEY HAS BEEN HANDED/TENDERED TO ADDRESS A REASONABLE TIME BEFORE DAY ON WHICH ATTENDANCE IS REQUIRED 42.06(1)

SET ASIDE SUBPOENA • Rule o Can apply to set aside subpoena if it is: 42.02

•

 AN ABUSE OF PROCESS;  OPPRESSIVE; OR  NOT FOR LEGITIMATE FORENSIC PURPOSE Not for Legit Forensic Purpose o It is not legitimate to use a subpoena to obtain what would in effect be discovery of documents from a non-party who is not liable to make discovery Small

FAILING TO COMPLY WITH A SUBPOENA • Contempt o Failure to comply without lawful excuse is contempt of court 42.12 • Damages o May also be liable for damages to the party who issued the subpoena, if the person subpoenaed is a material witness

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11) Interlocutory Procedure WHAT IS IT? • Interlocutory orders apply before judgment to preserve the status quo pending final determination o Do NOT finally determine the rights of the parties • Prevent final relief from being undermined before judgment • Include: o Injunctions

o

 Interim (in the mean time)  Anton Piller (Search)  Mareva (Freeze) Security for Costs

CONTEXT • Question will ask what options one party has before judgment EXAM STRUCTURE • Intro Crap • Affidavit • Interlocutory

INTRO CRAP GENERAL INFORMATION • Introduction o Do not determine the rights of parties, or anything re: the cause of action – they deal with subsidiary matters o Generally preserve the status quo pending final determination o Prevent final relief from being undermined by steps taken prior to trial • Hearing o Held in a practice court PROCESS FOR STARTING INTERLOCUTORY PROCEDURES • Summons o Rule

•

o

 Party making an IP must file a summons 46.01(a) Form

o

 Must be in form 46A 46.04(1) File to Who? 

Application made to Judge • File with the Prothonotary 46.04(2)(a)



Application made to Associate Judge • File with the Associate 46.04(2)(b)

Service o Rule 118 | P a g e

The summons requires ordinary service (unless before appearance) which must be sealed and supported by an affidavit of support 45.05(1) Timing 

o

Service must be completed within a reasonable time before the day for hearing (no later than 2pm the day before) Court Discretion o Court can set aside or vary an order where: 

•





Application was made but the person did NOT attend the hearing of the application 46.08(1) OR Application was NOT made on notice to that person 46.08(2)

AFFIDAVIT • Introduction o All IPs need an affidavit which is essentially the evidence for the IP • Formalities o First Person o

 Affidavit must be made in the first person 43.01(1) Address

o

Must state address 43.01(2) If address is unknown, may state place of business & position held instead 43.01(3) Occupation

o

Must state occupation 43.01(2) If they don't have one, can state description of the deponent instead 43.01(2) Paragraphs

o

Should be divided into paragraphs and numbered consecutively, and distinctly 43.01(4) Signed

 

 



   •

Shall be signed by the deponent (person who brings the affidavit) 43.01(5) Each page should be signed by the person before whom it is sworn 43.01(6) That person must write type or stamp signature, and write his or her name and address and statement of capacity 43.01(7)

Content o Facts and Beliefs Affidavit shall be confined to facts which the deponent is able to state in his own knowledge 43.03(1)  May contain a statement of fact based on information & belief if the sources/grounds of the belief are clearly set out 43.03(2) • If grounds not set out – facts based on beliefs are inadmissible Documents Referred to in it 

o



Document referred to in an affidavit shall not be annexed but may be referred to as an exhibit 43.06(1) 119 | P a g e



•

Exhibit can be identified by separate certificate annexed bearing same heading as affidavit 43.06(2) • Certificate shall be in Form 43A 43.06(3)

Filing o Must be Filed Affidavit CAN BE USED IF IT HASN'T BEEN: 43.09(1) • filed 43.09(1)(a) OR • served or filed in compliance with an order re: its service or filing 43.09(1)(b) Filed to Who 

o



May be filed with Prothonotary or proper officer in court 43. 09(2)

Injunctions WHAT IS IT? • Equitable orders made with the purpose of regulating the position between the parties in an action pending trial • Types: o Interlocutory (interim) o Final (final) o Ex Parte (with only 1 party present) o Mandatory (make someone do something) o Prohibitory (prevent someone from doing something) GENERAL CRAP • Timing o Court may grant an injunction at any stage in a proceeding, or before commencement of a proceeding (prior to proceeding in urgent cases only) 38.01 o If injunction granted prior to proceeding, the court may require an undertaking that proceedings be commended 4.08 • Notice o Court may grant an injunction without notice (urgent cases only) 38.02 INTERIM INJUNCTION • What is it o Injunction with a short operation period o Used when there is an urgent need to protect the status quo • Requirements (need all 3) o 1) There is a serious question to be tried o

 Previously known as a PF case 2) Damages are not adequate Injunction will NOT be granted if the party seeking an injunction has sufficient remedy available at law 3) The balance of convenience favours granting an interlocutory injunction 

o

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

Court will consider: • Inconvenience and hardship to the parties of granting • Any acquiescence/delay on part of the applicant (delay will be fatal) o Equitable remedy – required ‘clean hands’ • Whether the claim is frivolous or vexatious • Desirability of preserving status quo or preventing irreparable injury pending full trial

INJUNCTION ON CONDITION OF SECURITY FOR COSTS • General Rule o Each party shall bear their own costs of the interlocutory application unless the Court orders otherwise 63.20 • Exception: Injunction on Condition of Security for Costs o May grant injunction on condition that party applying give security for costs and expenses of any person affected 38.03(2) o Still requires the usual undertaking as to damages • Costs suffered by a TP o May make order for the payment (in first instance, or finally) of costs and expenses of any person not being a party who might be affected by the grant of an injunction 38.03(3)

Search Orders (‘Anton Piller’ Orders) WHAT IS IT? • Injunction that allows applicant to enter respondents premises to inspect, copy, detain or seize documents/property in the respondents possession CONTEXT • Used where there is a high chance the information will be destroyed, hidden or moved overseas • Always made ex parte (as if the respondent knew about it, they would hide the information) GENERAL INFO • Timing o Can be ordered during, or in anticipation of, proceedings 37B.02(1) • Ex Parte o Can be ordered without notice to the respondent 37B.02(1) • Permit Entrance o Respondent can be required to permit persons to enter for the purpose of securing or preserving evidence which may be relevant to an issue in the proceeding 37B.02(1) • Form o Shall be per FORM 37BA 37B.02(2) REQUIREMENTS 121 | P a g e

•

•

•

Requirements for a Grant of a Search Order: (per Anton Piller, modified by SPR) o Extremely strong prima facie case ON ACCRUED CAUSE OF ACTION 37B.03(1)(a) AND o Potential/actual loss or damage TO APPLICATION WILL BE SERIOUS IF NOT GRANTED 37B.03(1)(b) AND o Sufficient evidence THAT RESPONDENT POSSESSES IMPORTANT EVIDENCE 37.03(1)(c)(i) AND o Real possibility RESPONDENT MIGHT DESTROY SUCH MATERIAL/MAKE UNAVAILABLE 37B.03(1)(c)(ii) Implied Undertaking o Applicant makes an implied undertaking to the court to refrain from using the documents for any collateral/ulterior purpose Affidavit in Support o Rule Applicant must provide all of this required information in an affidavit 37B.03(2) Affidavit MUST INCLUDE: 

o



Description of things to be seized 37B.03(2)(a) • Can only seize what is in the schedule of items

Address and location of the premises 37B.03(2)(b) • Whether there is a vulnerable person living there (woman, under 18 or any other person due to language/mental infirmity) 37B.03(2)(f)  Reasons order is sough and whether there is a real possibility evidence will be destroyed/make unavailable 37B.03(2)(c)  Loss or damage to be suffered if order is NOT made 37B.03(2)(d) Court Appointed Solicitor o Court must appoint an independent solicitor to supervise the execution of the search order 37B.06(1) o P must undertake to pay the independent solicitor’s reasonable costs and disbursements 37B.03(3) Undertaking as to Damages o Rule 

•

•

o

 Applicant must also make the usual undertaking as to damages Example 

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

Freezing Orders (‘Mareva Injunctions’) WHAT IS IT? • Injunction that prevents D or TP from disposing of assets, removing them from the jurisdiction or dealing with/diminishing the value of them CONTEXT 122 | P a g e

•

Used where property is in another’s possession and that person may sell, move, dispose of, diminish value of the that property

GENERAL INFO • Timing o Can be ordered anytime after proceedings have been issued 37A.02(1) • Ex Parte o Can be ordered with or without notice to the respondent 37A.02(1) • TPs o Court may make freezing order against a respondent, whether or not they are party to proceedings 37A.04 o Can be made ex parte against a TP • Purpose o Given for the purpose of preventing the frustration or inhibition of the Court’s process to prevent the judgment being partly or wholly unsatisfied 37A.02(1) • Form o May be in Form 37AA 37A.02(3) o MUST have affidavit in support attached • Damages Undertaking o P must make the usual undertaking o Note this has great effect, as the damage of TP not being able to deal with an asset may be significant • Supreme Court of Vic Note of Freezing Orders o Guide to consistent application of the rules o This order is ‘extraordinary’  

Limited to assets up to the likely maximum of Ps claim Must allow for D to make normal expenditure

EFFECT • Court can: o Prevent the respondent from removing the asset from Australia 37A.02(1) OR o From disposing, dealing with, or diminishing the value of those assets 37A.02(1) • Property Rights o Do not create property rights in the assets or give you greatER RIGHT TO ASSETS THAN ANYONE ELSE AFFIDAVIT IN SUPPORT OF FREEZING ORDER (MUST INCLUDE THE FOLLOWING) • Information about Judgment/Claim o Information about judgment THAT HAS BEEN OBTAINED 37A.02(5)(a) o If no judgment obtained INFORMATION ABOUT CAUSE OF ACTION:   

Basis of claim FOR SUBSTANTIVE RELIEF 37A.02(5)(a)(i) Amount OF CLAIM 37A.02(5)(a)(ii) If application made without notice to R, APPLICANT’S KNOWLEDGE OF ANY POSSIBLE DEFENCE 37A.02(5)(a)(iii) 123 | P a g e

•

•

•

R’s Assets o Nature and value of R’s assets, SO FAR AS THEY ARE KNOWN TO APPLICANT (IN AND OUTSIDE AUSTRALIA) 37A.02(5)(b) Third Parties Affected o Identity of any other person WHO MAY BE AFFECTED BY FREEZING ORDER 37A.02(5)(d) Danger of the Person Controlling Assets Dealing with them o Whether there is a danger that the judgment will be wholly or partly unsatisfied 37A.05  Because the person controlling the assets may: • abscond 37A.05(4)(a) • remove the assets from Australia 37A.05(4)(b)(ii) • deal with them such that value diminishes 37A.05(4)(b)(ii) o More likely to be the case if the respondent has business in other jurisdictions Mareva

DISCHARGE • Rule o

Court can DISCHARGE A FREEZING ORDER IN CERTAIN CIRCUMSTANCES (E.G. COURT MISLED, CIRCUMSTANCES HAVE CHANGED)

Security for Costs (LOOK FOR POSSIBLE P INSOLVENCY) WHAT IS IT? • D can apply for an order that P give security for Ds costs, where there is a risk that D might have no reasonable prospect of recovering their costs, if they win CONTEXT • Circumstances that suggest P may not being able to pay Ds costs: o P is not in Vic o P may become insolvent/bankrupt GENERAL RULE • Rule o D can apply for an order that P give security for Ds costs, where there is a risk that D might have no reasonable prospect of recovering their costs, if they are ultimately successful Order 62 • May be Ordered Where: o P is NOT in Vic o

 P ordinarily RESIDES OUT OF VICTORIA 62.02(1)(a) P Sues for Another and has Insufficient Assets

o

P is corporation (not P who sues in representative capacity), or sues for benefit of some other person AND reason to believe P has insufficient assets in VIC to pay the costs of D if so ordered 62.02(1)(b) Same Claim Pending 

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Proceeding by P in another court for same claim is pending 62.02(1) (c) Issues with Ps Address 

o

 

P’s address is not stated correctly or not stated in OP 62.02(1)(d) P has changed address since beginning of proceedings to avoid consequences 62.02(1)(e)

FAILURE TO GIVE SECURITY • Where P Does NOT give Security o Effect o

 Court MAY dismiss THE PS CLAIM 62.04 Discretionary  

It is ultimately discretionary Following factors have been taken into account: • The means of the persons who stand behind the litigation • The prospects of success or the merits • The bona fides of the litigation • If P is an impecunious company • • • • • • • • • • •

Whether P’s impecuniosity is attributable to the D’s conduct Whether P is a party attacked & is in essence occupying the position of the defence Whether an order would be oppressive If it would stifle the litigation Whether a pre-existing special relation exists Whether the litigation is a matter of public importance Whether there has been an admission or payment into court Whether there has been a delay in bring the application Costs of enforcement procedures Whether loss bearing, loss sharing entity is involved The risk of dissipation of assets; and costs

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12a) Disposition without trial WHAT IS IT? • The ways that trial can be avoided • Appox. 95% of cases do not go to trial CONTEXT • 4 ways that an action can be disposed of without trial o 1) Summary Disposition 

Default Judgment • Default of appearance • Default of defence • Failure to obey/meet an order

Summary Judgment • For P • For D o 2) Dismissal for want of Prosecution o 3) Discontinuance and Withdrawal o 4) Settlement Will also look at vexatious litigants 

•

SUMMARY DISPOSITION WHAT IS IT? • Where a default of summary judgment is made without the need for a trial CONTEXT • Summary Disposition Includes the Following: o Default Judgment

o

 Default of appearance  Default of defence  Failure to obey/meet an order Summary Judgment  

For P For D

Default Judgment WHAT IS IT? • Where judgment is made without a trial because there is a serious procedural error CONTEXT 126 | P a g e

•

3 situations that can result in default judgment: o Default of appearance o Default of defence o Failure to meet/obey an order (Not examinable)

DEFAULT OF APPEARANCE • Context o Where D does NOT file an appearance within the time limit • Requirements o Writ o

 Only applies to proceedings commenced by writ r21.01(1) D does NOT file appearance

o

 D does NOT file an appearance within the time limited r21.01(2) Notice to Prothonotary

o

P gives notice to Prothonotary requesting they search for Ds appearance r21.01(3)(a) Affidavit of Service 

 • •

P can tender an affidavit proving service r21.01(3)(b)

Effect o P may apply for judgment in default of appearance against the D r21.01(2) Court May Vary o Court may vary or set aside any judgment in default of appearance r21.07 o D must show reasons why appearance was not filed AND must pay costs thrown away

DEFAULT OF DEFENCE (INCLUDES DEFENCE TO CC) • Context o Where D does NOT file a defence within the time limit • Requirements o D Fails to Serve Defence / Defence is Struck Out D fails to serve a defence within the time limit, when he is required to r21.02(1) OR  D files a defence, but it is struck out under r24.02 for non compliance with rules r21.02(3) Affidavit of Default in Service of Defence 

o

 • • •

P must tender an affidavit of default in service of defence r21.02(2)

Effect o P may apply for judgment in default of defence against the D r21.02(1) Defence to CC o If P does NOT file a defence to CC, D can get default judgment r21.06 Court May Vary o Court may vary or set aside any judgment in default of defence r21.07 o D must show reasons and merits of defence AND must pay costs thrown away

JUDGMENT ON FAILURE TO MEET/OBEY ORDERS FOR PARTICULARS/DISCOVERY 127 | P a g e

• • •

•

Straight from NATS as not examinable Where a plaintiff fails to serve a SoC within the time limit or does not set the proceeding down for trial within 28 days the court may order the proceeding to be dismissed 24.01 Where a party fails to comply with an order to give particulars or any pleading or with a order for discovery or inspection of documents or for answers of interrogatories, the Court may order: o that the proceeding be dismissed 24.02(a) OR o if the party is a defendant, that the defence be struck out 24.02(b) Court has the inherent jurisdiction to dismiss proceedings or a defence 24.05 o Court may vary or set aside this judgment 24.06(a)

Summary Judgment WHAT IS IT? • Where judgment is made without a trial because the other party has no argument in law or fact • Based on the merits of the claim, rather than a procedural error CONTEXT • Where there is a ‘clear cut’ cases and the other party has no arguments o SJ by either that a claim or proceeding generally:

o o

    SJ by SJ by

Does NOT disclose a cause of action; or Is scandalous, frivolous or vexatious; or Is an abuse of process No real prospect of success the P that the D has no defence the D that the D has a good defence

SUMMARY JUDGMENT BY EITHER P OR D (CATCH-ALL) • Catch-All (Does not disclose COA, Scandalous, Frivolous, Vexatious, Abuse of Process) o Rule Court may stay proceeding, or give SJ, where a proceeding generally or any claim in a proceeding: r23.01(1) • (a) does NOT disclose a cause of action; or • (b) is scandalous, frivolous or vexatious; or • (c) is an abuse of process Case must be Very Clear 

o

 



A case must be very clear to warrant summary dismissal Court must exercise its jurisdiction with great care, and be satisfied there is no question to be tried. If there is a question to be tried, there should be no summary judgment Cubillo v Commonwealth Intended to apply only to cases where can be no reasonable doubt that P is entitled to judgment, and where, therefore, it is inexpedient to allow D to defend for mere purpose of delay Jones v Stone

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•

No Real Prospect of Success o Rule

o

Court may give SJ if satisfied a claim, defence or CC (or part thereof) as the case requires has no real prospect of success s63(1) CPA  Only applies to civil cases s63(1) CPA Exercise with Caution

o

Should be exercised in accordance with the overarching purpose of the CPA  The High Court recently addressed the Federal Court equivalent, which are broadly analogous provisions, in Spencer v The Commonwealth [2010] HCA 28 • French CJ and Gummow J emphasised that powers of this kind must be exercised with caution: “The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.” Application

o

can give SJ: s63(2) CPA (a) On application by P (b) On application by D; OR (c) On the courts own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding ‘No Real Prospect of Success’







Court • • •



Look at whether there is a ‘realistic’ chance of success, rather than a ‘fanciful’ English Court of Appeal in Swain v Hillman [2001] 1 All ER 91 considered a similar rule of court. Lord Woolf MR said at p92: • “The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or ... They direct the Court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”



SUMMARY JUDGMENT BY PLAINTIFF • Context o P argues that D has no defence on the merits • Exceptions o Rule Does NOT apply to claims for libel, slander, malicious prosecution, false imprisonment, seduction or allegation of fraud r22.02(2) If it Does? 

o

Where a claim includes one listed in 22.02(2), P may apply for SJ for other claims, and continue proceedings for the above mentioned claim r22.02(3) Requirements 

•

129 | P a g e

o

Writ

o

 Only applies to proceedings commended by writ r22.01 After Appearance

o

 Must be after D files an appearance r22.02(1) D has no Defence

o

P must show that D has: r22.02(1) • No defence to the whole or part of the claim OR • No defence expect as to the amount of the claim Process 

Summons • Applications for SJ by P must be filed by summons for final judgment and supported by affidavit r22.03(1)  Affidavit • Must Include: o Verify the facts which relate to the application r22.03(1) (a) o State that the deponent believes there is no defence r22.03(1)(b) • Timing o Must be served at least 14 days before day for hearing r22.03(1)(d) D’s Response o D can do nothing, or may respond by affidavit showing why they have a defence, or another reason by there should not be SJ r22.04 Counter Claims o Same process applies r22.08 Effect o Must be VERY Clear 

•

• •

  

o

SJ only granted where P is able to show an unanswerable case Cubillo It is not enough to show that P is likely to win Intended to apply only to cases where can be no reasonable doubt that P is entitled to judgment, and where, therefore, it is inexpedient to allow D to defend for mere purpose of delay Jones v Stone

Effect 

Court may grant SJ for P and dispose of the trial r22.02(1)

SUMMARY JUDGMENT BY DEFENDANT • Context o D argues that D has a good defence on the merits o E.g. P’s claim is statute barred as it is outside the limitation period • Requirements o Writ o

 Only applies to proceedings commended by writ r22.01 After Appearance

o

 Must be after D files an appearance r23.03 D has no Defence 130 | P a g e

o

 D must show that D has a good defence on the merits r23.03 Process 

•

Affidavit • May file affidavit in support of the application which details the merits of the defence r23.04 • Details can be given orally if court sees fit r23.04(1)

Effect o Must be VERY Clear   

o

SJ only granted where D is able to show an unanswerable defence Cubillo It is not enough to show that D is likely to win Intended to apply only to cases where can be no reasonable doubt that P is entitled to judgment, and where, therefore, it is inexpedient to allow D to defend for mere purpose of delay Jones v Stone

Effect 

Court may grant SJ for D and dispose of the trial r23.03

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Dismissal for want of prosecution: Inherent Jurisdiction WHAT IS IT? • Dismissal of proceedings or a defence, where P or D fails to do an act or take a step required by the rules CONTEXT • Fail to serve SOC within time limit • Fails to file notice of trial or have date fixed for trial within time period DISMISSAL FOR WANT OF PROSECUTION • Rule o Court has the inherent jurisdiction to dismiss proceedings or a defence upon the failure of party to do any act or take any step required by the Rules 24.05 • Can Vary o Court may vary or set aside this judgment 24.06(a) • Context? o Court may order proceeding dismissed for want of prosecution where Plaintiff: Fails to serve a statement of claim within time limited 24.01(a) Does not file/serve notice of trial or apply to have a date fixed for trial, within reasonable time after commencement of proceeding 24.01(b)  Fails to file and serve notice of trial within time allowed to P by Court when fixing date for trial of proceeding under RULE 48.02(B) 24.01(c) This is from Keara – Check if its right?  

o

Allows for dismissal if the interests of justice demand it: • “The power should be exercised only where the Court is satisfied either: o (1) that the default has been intentional and contumelious, e.g. disobedience to a preemptory order of the Court or conduct amounting to an abuse of the process of the Court; or o (2)(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and o (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.” o Per Lord Griffiths in Department of Transport v Chris Smaller (Transport) Limited [1989] AC 1197, 1203. Failure to Obey an Order o Where there is a failure to obey an order, the proceeding may be dismissed (if P) 24.02(1)(a) or the defence may be struck out (if D) 24.02(1)(b) 

•

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Discontinuance and withdrawal WHAT IS IT? • Where P or D discontinues (a proceeding) or withdraws (a document) DISCONTINUANCE AND WITHDRAWAL • Rule: Withdraw/discontinue a proceeding or part of it o Plaintiff may discontinue a proceeding or withdraw any part of it 25.02(2)  before the close of pleadings; 25.02(2)(a) or  at any time, by leave of the Court or with the consent of all the parties 25.02(2)(b) o Defendant may discontinue a counterclaim or withdraw any part of it 25.02(3)  before the close of pleadings 25.02(3)(a) OR  at any time, by leave of the Court or with consent of all other parties to the counterclaim 25.02(3)(b) • Counter Claim o At any time the plaintiff may withdraw a defence to counterclaim or any part of it and a defendant may withdraw the defendant’s defence or any part of it 25.02(4) • TP who has been Joined by D o A defendant who has joined a third party may discontinue the claim made against the third party by a third party notice or withdraw any part of the claim at any time by leave of the Court or with the consent of the third party 25.02(6) • Application o Court must be satisfied, the discontinuance is not an abuse of process 

 • •

E.g. P can NOT discontinue because he wants to commence proceedings in a different jurisdiction where he could recover more Re Matthews: Oates v Mooney [1905] 2 Ch 460 E.g. P can NOT discontinue to prevent a CC that is larger than the claim he is pursuing Ernst & Young v Butte Mining Plc [1996 1 WLR 1605

Costs o If P discontinues, he is usually liable for Ds costs RJ or IE o Discontinuance/withdrawal does not give rise to res judicata or issue estoppel, unless there has been a settlement o This means that if P discontinues, he can still bring fresh proceedings

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VEXATIOUS LITIGANT WHAT IS IT? • Where P continues to bring legal action without any reasonable grounds VEXATIOUS LITIGANTS • Who is a Vexatious Litigant? o Where Court is satisfied that a person has habitually AND persistently AND without any reasonable grounds instituted vexatious legal proceedings 21(1) Supreme Court Act • Effect o The Court Can: Declare that person a vexatious litigant 21(2) Supreme Court Act Provide that the vexatious litigant must not, without leave, continue or commence any legal proceeding, or commence any specified type of legal proceeding 21(3) Supreme Court Act When will Leave be Given?  

o



Leave will not be given to commence proceedings unless the proceedings are not or will not be an abuse of process 21(4) Supreme Court Act

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12B) FACILITATING SETTLEMENT WHAT IS IT? • The process of facilitating settlement between the parties • Settlement is desirable on policy grounds as: o Frees up court resources o Saves money o Parties can agree and both feel like they have won CONTEXT • There is cost benefits to parties who attempt to settle prior to trial

Informal settlement INFORMAL SETTLEMENT • Application o Now that Order 26 (Offers of Compromise) have been implemented, it is unclear whether informal settlement can still be used – is there an answer? • RJ or IE o If you discontinue due to settlement before a trial is finished (even during trial) there is no RJ or IE preventing re-litigation (although may be written into settlement agreement) • Timing o Can settle at any time during proceedings – before, during and after trial o Can be in a contract (informally) including agreement of claims made and the payment of costs; as well an agreement to discontinue the action

Formal settlement: OFFERS OF COMPROMISE CALDERBANK & WITHOUT CONFIDENCE • Without Prejudice Offer o A settlement offer than is inadmissible in evidence • Calberdank Offer o A settlement offer that is inadmissible in evidence, but is admissible for the purpose of determining costs

OFFERS OF COMPROMISE • What is it? o An offer from one party to another to settle the matter o This offer is enforceable by the court by consent • Rule o Without Prejudice 136 | P a g e

Offer made under O26 will be taken to be made without prejudice unless the offer provides otherwise r26.05 No Disclosure to the Court Until Finalised 

o

 •

O26 offers are NOT disclosed to the court until all questions of liability and relief have been determined r26.05(2)

Procedure o Writing o

 Must be in writing O26 Identified as an O26

o

 Must include a statement which identifies it as an O26 offer r26.03(1) Multiple

o

 Multiple offers can be served r26.03(2) Timing

o

Can be made at any time before judgment 26.03(1) A time limit for acceptance can be specified r26.03(3) If no time limit is specified, offer is open for the sooner of 14 days, or until judgment r26.03(3) Acknowledgement of Office

o

Receiving party must give written acknowledgement of offer within 3 days of service r26.03(3)(i) Withdrawn

o

Offers cannot be withdrawn during the period that it is open for acceptance unless the Court orders so, or unless the offer is replaced by an offer which is more favourable to the offeree 26.03(5) Not Filed

o

 O26 offers are NOT filed with the court Can NOT be included in Affidavit

  





•

 Can NOT be included in an affidavit Cost Consequences o Court Discretion Note the court has discretion in making costs orders, so these rules are just general r26.08 Offer Accepted 

o

P normally entitled to costs on party/party basis up to date of service 26.03(7) Ps offer is rejected, and P gets judgment equal or better than amount offered  Claim concerns death or bodily injury • P gets costs taxed on an indemnity basis 26.08(2)(a) 

o

Other Claims • P gets costs up to and including the day of offer on a party/party basis AND thereafter on an indemnity basis 26.08(2)(b) Ds offer is rejected, and P does NOT gets judgment equal or better than amount offered  D pays Ps costs on party/party basis up to day the offer was served AND  P pays Ds costs after that date on a party/party basis 26.08(3) 

o

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QUICK COSTS SUMMARY Party/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 (Most common – default basis) 63.29 Solicitor/Client Costs: All costs reasonably incurred and of reasonable amount (Slightly more generous than bare minimum of Party/Party costs) 63.30 Indemnity Costs: ALL costs incurred except insofar as they are of unreasonable amount or have been unreasonably incurred (Closer to what solicitor actually charges their client) 63.30.1

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13) TRIAL WHAT IS IT? • When we actually get to trial!

Trial SETTING DOWN FOR TRIAL • General o Applied to ALL proceedings, whether commenced by writ or OM r48.01 o Have a date for trail is NOT enough – must also set down for trial • Trial Date o Fixed at the directions hearing which is about 4 weeks after the writ is served • Requirements to Set Down o Notice of Trial 

Rule • •

P must sign, file and serve a notice of trial under r48.02 at close of pleadings and after exchange of evidence Notice of trial should be in Form 48A r48.03

If P Fails to file and serve Notice of Trial in a Reasonable Time? • D may file and serve notice of trial r48.04(1) OR • D may apply to dismiss claim for want of a prosecution r48.04(1) o (see previous topic) Trial Fees 

o •

 Must be paid to the court before trial, subject to exceptions Specialist List Exception o A trial in a specialist list does NOT need to be set down for trial r48.01(2) o Includes: 

Admiralty List; Technology, Engineering and Construction List (TEC List); Commercial List; Corporations List; Intellectual Property List; Valuation, Compensation and Planning List

PLACE AND MODE OF TRIAL • P may Indorse the OP with Place and Mode o Writ

•

P may indorse writ with place and mode of trial r5.08

o

 OM

o

 P may indorse OM with place of trial r5.08 If P does NOT indorse?

 Default place is Melbourne  Default mode is trial by judge alone Judge or Jury o General Rule

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o

Any PROCEEDING OTHER THAN THOSE BELOW SHALL BE TRIED WITHOUT A JURY UNLESS COURT ORDERS 47.03(2)  Shall be JURY OF SIX 47.02(4) Writ with Contract/Tort

o

Proceedings COMMENCED BY WRIT AND FOUNDED ON CONTRACT (INCLUDING K IMPLIED BY LAW) OR TORT (INCLUDING DAMAGES FOR BREACH OF STATUTORY DUTY) SHALL BE TRIED BY JURY 47.02(1) Request for Jury







Who to Request • P in writ • D by notice in writing TO P & PROTHONOTARY



Formalities • WITHIN 10 DAYS AFTER LAST APPEARANCE EITHER PARTY SIGNIFIES THE DESIRE TO HAVE PROCEEDING TRIED BY JURY 47.02(1)(a) • Must pay JURY FEES ARE PAID 47.02(1)(b)



Effect • If the request is properly made, there is a PF right to trial by jury TREVOR Court Discretion • Court may order a matter listed for trial by jury to proceed by way of judge alone GUNNS PER FORREST J



CONDUCTING THE TRIAL • Oral Evidence o Evidence is generally given orally r40.02(a), but can be given in writing where witness statements are ordered in specialist lists o The current trend is away from affidavits • Who Starts? o General Rule The party who bears the onus of proof goes first r49.01(2) Where BURDEN OF PROOF OF ANY QUESTION LIES ON THE P, P SHALL BEGIN 49.01(2)(a)  Where BURDEN OF PROOF ON ALL THE QUESTIONS LIES ON THE D, D SHALL BEGIN 49.01(2)(b) Court Discretion  

o •

•

 Court has overall discretion as to who starts r49.01(1) Splitting a Case o Separate questions can be tried separately r47.04 o Court can allow/order a party to split their case Protean Opening Address and Evidence o Opening Party  

Party who begins (usually P) may make an ADDRESS OPENING THE PARTY’S CASE 49.01(4) That party tHEN ADDUCES THEIR EVIDENCE 49.01(4)

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o

Each witness may be cross-examined by D and re-examined by P s28 Evidence Act  P then closes his case (can NOT call any further evidence) Next Party

o

D can elect to call no evidence and make a ‘No Case’ submission PROTEAN  If D wishes to call evidence, D opens, calls evidence and witnesses can be crossed and re-examined as above Closing Addresses







If next party has called no evidence, nor tendered anything in crossexamination • Next party gets the benefit of closing last r49.01(5)



ELSE, OPENING PARTY CLOSES LAST R49.01(6)

VERDICT AND JUDGMENT • Definitions o Verdict: Conclusion reached on matters of fact o Judgment: Conclusion reached on matters of law and orders made Note that most trials involve judges alone, so the distinction is of little importance Court has Broad Powers o Court can “give such judgment or make such order as the case requires” on party’s application at any time in the proceeding, whether requested in originating process or not r59.01(1) Reserved and Delayed Judgment o Judgment can be reserved or delivered with reasons produced later o J’s shall take effect from day it is delivered, unless court otherwise orders r59.02(1) Formalities o Oral Judgment 

•

•

•

Shall be SUFFICIENT TO STATE RESULT ORALLY WITHOUT REASONS, BUT WRITTEN REASONS SHALL THEN AND THERE BE PUBLISHED BY DELIVERY TO THE ASSOCIATE 59.04 Authentication 

o





Judgments and Orders must be FORMALLY AUTHENTICATED AFTER COURT HAS DELIVERED JUDGMENT AS CONDITION OF ENFORCEMENT OR APPEAL 60.01 Authenticated when a form of the JUDGMENT IS DRAWN UP AND SETTLED IN ACCORDANCE WITH ORDER 60, IS SEALED BY PROTHONOTARY WITH SEAL OF THE COURT 60.02(1)

Case Management Timeline

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14) COSTS WHAT IS IT? • Money that a party may recover from their opponent to reimburse them for expenses incurred in the litigation • Note that cost orders are generally must less than actual legal costs incurred CONTEXT • That money stuff you can use to buy things like ice-cream and lawyers EXAM • • • • •

•

General Rule Right to Costs Cost Indemnity Rule Exception to the CIR o Including: lawyers and interlocutory Complex o Where P wins, and D’s CC also wins o Where P wins against D1 and loses against D2 (MPO) Quantum

Introduction GENERAL INFORMATION • Definition o Costs are money that a party may recover from their opponent in litigation, for reimbursement of particular expenses incurred in the litigation • Purpose o Costs awards are designed to reimburse for some legal expenses incurred in conducting the litigation o This is a disincentive for bringing unmeritorious cases or defending on unmeritorious basis o They are not generally designed to indemnify a party for all expenses it has incurred o BUT they are also used to discipline parties and encourage settlement • Unrepresented Parties o Unrepresented parties cannot claim for the time they have spent preparing and running their case (exception is self-represented solicitors) • Policy o They can undermine access to justice acting as a barrier to poorer plaintiffs and also the adversary system works best where equal financial abilities and equal quality of representation

POWER AND DISCRETION OF THE COURT 143 | P a g e

•

•

•

•

Discretion of the Court o The COSTS OF AND INCIDENTAL TO ALL MATTERS IN THE COURT, IS IN THE DISCRETION OF THE COURT AND COURT HAS FULL POWER TO DETERMINE BY WHOM AND TO WHAT EXTENT COSTS ARE TO BE PAID s24 Supreme Court Act o Power and discretion of Court as to costs under s24 of the Act shall be exercised subject to and in accordance with this Order 63.02 Timing o May exercise power & discretion as to costs AT ANY STAGE OF THE PROCEEDING OR AFTER ITS CONCLUSION 63.03(1) o Costs required to be paid shall be PAID FORTHWITH (IMMEDIATELY) UNLESS COURT ORDERS 63.03(2) Particular Question or Part of the Proceeding o Court may make order for costs in relation to a PARTICULAR QUESTION IN/PART OF A PROCEEDING 63.04(1) o Court SHALL FIX PROPORTION OF TOTAL COSTS ATTRIBUTABLE TO PARTICULAR QUESTION/PART 63.04(2) Taxing o What does this mean? Do you pay tax on costs? o COSTS TO BE TAXED BY TAXING MASTER/MASTER OR PROTHONOTARY/DEPUTY PROTHONOTARY WHERE TM DIRECTS 63.05 o Officers of Court to assist each other in taxation 63.06 o Where a party is to be paid costs, party shall be ENTITLED TO TAXED COSTS 63.07(1)  Instead of taxed costs, COURT MAY ORDER A PARTY IS ENTITLED TO • A portion specified in order of taxed costs 63.07(2)(a) • Taxed costs from/up to stage of proceedings specified in the order 63.07(2)(b) • Gross sum specified in order instead of taxed costs 63.07(2)(c) • Sum in respect of costs to be determined in such manner as Court directs 63.07(2)(d) o Default Judgment 

Where (DEFAULT) JUDGMENT ENTERED FOR COSTS UNDER 21.03(2) COSTS SHALL NOT BE TAXED, BUT FIXED BY PROTHONOTARY IN ACCORDANCE WITH APPENDIX A SCALE 63.08(1)

COSTS OF LITIGATION • What are they? o The amount of costs in a legal proceeding which the court orders one party to pay to another • General Rule o Referred to by r63.02 o Unless otherwise provided… the costs of and incidental to all matters in the Court … is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid s24(1) Supreme Court Act 144 | P a g e

•

Right to Costs o Subject to the rules or any order of the court, a party does NOT have a right to costs unless it can find a rule that entitles them to costs r63.13

Types of Costs & THE COST INDEMNITY RULE COST INDEMNITY RULE • Cost Indemnity Rule o Successful party recovers costs from the unsuccessful partY (I.E. COSTS FOLLOW THE EVENT) o Although reasonable expectation there is no right to costs, court has absolute, unfettered discretion Byrns v Davey • There are 4 ways costs can be taxed o Party and Party costs: All costs necessary and proper r63.29 o Solicitor and client costs: All costs reasonably incurred r63.30 o Indemnity costs: All costs, except those unreasonably incurred r63.30.1 o Other: such other basis as Court may direct 63.28(d) 1) PARTY AND PARTY BASIS • Rule o 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 r63.29 • Application o Default

o

 Most common  This is the default position r63.31 Going Beyond P/P?

In order to go beyond these costs there must be malicious or unreasonable behaviours (Bongiorno J in Gunns) ‘Necessary or Proper’ o Necessary for Attainment of Justice 

•

o

… necessarily taken or performed for the attainment of justice or the maintaining or defending of the litigant’s rights … W & A Gilbey Ltd v Continental Liquers Reasonable Performed without Extravagance

o

or although not necessarily performed for such purposes, would reasonably have been performed for any of those purposes without extravagance W & A Gilbey Ltd v Continental Liquers NOT in Conflict with Law

o

and not in conflict with law, the practice of the Court, and the usage of the legal profession” W & A Gilbey Ltd v Continental Liquers Hindsight

o

 Determination is NOT made with the benefit of hindsight If Doubt?







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

If there is doubt about whether a cost is necessary or proper, it is resolved against the person claiming the item

2) SOLICITOR AND CLIENT BASIS • Rule o All costs reasonably incurred and of reasonable amount r63.30 • Difference to P/P o Generally o

 S/C is slightly more generous than the bare minimum of party/party Doubt

o

If there is about a cost, it is determined in favour of the person claiming the amount • This is the opposite to P/P Reasonableness of Amount 

In assessing reasonableness of amount, can look at any costs agreement between the solicitor and his/her client Example of When S/C will be Ordered o Unnecessary Delay in Defence 

•

May be awarded against a successful D on the grounds that it was not until the last day of the trial that D revealed to P a meritorious ground for refusing its claim – had there been an earlier disclosure, then the litigation may have been avoided Verna Trading v New Indian Insurance Malicious or Unreasonable Behaviour 

o



In order to go beyond these costs there must be malicious or unreasonable behaviours (Bongiorno J in Gunns)

3) INDEMNITY BASIS • Rule o All costs incurred except insofar as they are of unreasonable amount or have been unreasonably incurred r63.30.1 o Getting closer to what the solicitor actually charged the client • Application o Questions of unreasonableness are resolved in favour of the person to whom costs are payable r63.30.1(2) • Grounds for Awarding Indemnity Costs o D has No Chance of Success

o

Where D should have known they have no chance of success Blackburn v State of NSW (unreported) Public Interest

o

PIG wins and it is in the public interest to grant this NGO costs on an indemnity basis Aus Federation of Consumer Organisations Inc, Tobacco Institute of Aus Misuse or Abuse of the Litigation Process







The timing and circumstances in which the proceeding where brought amount to misuse and abuse of the litigation process Bollag v A-G (Cwth) 146 | P a g e

o

Unreasonable Prolonging

o

 Unreasonable prolonging or delay of a case Rosniak v GIO Mega-Litigation 

Where P should have refined the issues in dispute to avoid costs blowing out to a ridiculous amount Seven Network Ltd (Sackville J: ‘In my view the expenditure of $200 million… is not only wasteful, but borders on scandalous’)

Exceptions to the Costs Indemnity Rules INTRODUCTION • Rule o Court has discretion to deviate from the costs indemnity rule, if any of the following exceptions apply  Party wins in the wrong court  Party rejects a generous settlement offer  Party ultimately wins, but loses on some issues  Public interest litigation  Party acts in such a way as the court thinks they should PAY  Breach of the overarching obligations in the CPA • Deprive Successful D of Costs o Need a more compelling reason to deprive a successful D of costs VERNA PARTY WINS IN THE WRONG COURT • Unnecessarily High Court o Where a party sues and wins in an unnecessarily high court, the court may order the winning party indemnify the losing party for extra costs the loser spent in defending the matter in the more expensive court R63.24(1) o Does not APPLY IF PROCEEDINGS HAVE COMMENCED IN ANOTHER COURT & TRANSFERRED TO THE COURT 63.24(4)

WINNING PARTY REJECTS A GENEROUS SETTLEMENT OFFER • Settlement o See topic 12B ‘facilitating settlement’ above

PARTY UNTIMATELY WINS, BUT LOSES ON SOME ISSUES • Court Can: o Follow the General Cost Indemnity Rule

o

Award costs on basis of general (costs indemnity) rule to P as P is the overall winner, despite losing some issues Isolate Issues

o

Isolate issues as a part of causes of action and make P pay for issues D won, and D pay for issues that P won Percentage Approach (Most Preferable)





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 

Costs awarded as a percentage based on the time spent on each issue Byrnes Court able to estimate in percentage manner due to general discretion afforded by s 24 SCA

PUBLIC INTEREST LITIGATION • Policy o Counsel/solicitors have acted in the public interests or on a pro bono basis and hence can be seen to have acted according to the highest ideals of the law and even if unsuccessful they have served the role of the law and hence the community (Postscript of Tampa (Ruddock v Vardalis) per Beaumont & French JJ) • Public Interest Group Wins o PIG may get their costs paid on an indemnity basis Tobacco Institute o Tobacco Facts Public interest group brought successful action to restrain the Respondent from making misleading and deceptive statements on issues of public health  Judge awarded indemnity costs to plaintiff after considering public interest aspect and that proceedings were a test case on whether passive smoking endangered the health of non-smokers Public Interest Group Loses o PIG may avoid getting costs order against them Ruddock 

•

PARTY ACTS IN A WAY THAT THE COURT THINKS THEY SHOULD PAY • Rule o Catch all – as court has the final and full discretion to determine costs s24 SCA • Example o The party uses underhanded tactics 

Verna • D CAUSED THE ACTION BY NOT RESPONDING TO PS REQUEST FOR INFORMATION • D WASTED TIME AND MONEY BY AMENDING AND DENYING EVERY APPLICATION IN THE STATEMENT OF CLAIM • THERE WAS NO ORDER OF COSTS AS THE TRIAL WAS SHORT, BUT D (THE WINNER) WAS ORDERED TO PAY THE ACTUAL FULL LEGAL BILL OFF THE P FOR THE LEAD UP TO TRIAL

PART 2.4 CPA: SANCTIONS FOR CONTRAVENING THE OVERARCHING OBLIGATIONS • Rule o In exercising its discretion as to costs, a court may take into account any contravention of the overarching obligations s28(2) CPA • Effect

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o

Where a person has contravened any overarching obligation, court may make any order it considers appropriate in the interests of justice including: S29(1) CPA  (a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation  (b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately

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Costs Orders against Lawyers COST ORDERS AGAINST LAWYERS • Rule – R63.23 o When? 

o

63.23(1) Where a solicitor has caused costs to be: • incurred improperly OR WITHOUT REASONABLE CAUSE, OR • to be WASTED BY LAWYER FAILURE TO ACT WITH REASONABLE COMPETENCE & EXPEDITION

Effect

Court may order that: • Client does NOT have to Pay Solicitor 63.23(1)(a) o All or any of the costs between the solicitor and the client be disallowed OR o If client has already paid solicitor, the solicitor repay to the client the whole or part of any money paid on account of costs • Solicitor Pays Clients Costs 63.23(1)(b) o Solicitor must pay to the client, all or any of the costs which the client has been ordered to pay to any party • Solicitor Pays Other Parties Costs 63.23(1)(c) o Solicitor pays all or any of the costs payable by any party other than the client 63.23(1)(c) Sample Circumstances of Failure to Act with Reasonable Competence o Solicitors AND Barristers 

•

 o

This rULE (R63.23) APPLIES TO BOTH SOLICITORS AND BARRISTERS 63.23(7)

Rule 

A solicitor FAILS TO ACT WITH REASONABLE COMPETENCE AND EXPEDITION WHERE ANY APPLICATION IN/TRIAL OF A PROCEEDING: r63.23 • CAN NOT CONVENIENTLY BE HEARD • Can NOT proceed • Fails • IS ADJOURNED WITHOUT ANY USEFUL PROGRESS

AND this occurred because the solicitor failed to: • Attend in person or by proper representative 63.23(2)(a) • File any document which ought to have been filed 63.23(2)(b) • Lodge/deliver any document for use of the Court 63.23(2)(c) • Be prepared with any proper evidence or account 63.23(2)(d) • Otherwise proceed 63.23(2)(e) Opportunity to be Heard 

o

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

Solicitor is to be given reasonable opportunity to be heard before Court before the order is made R63.23(3)

Costs for INTERLOCUTORY HEARINGS AND SATELLITE LITIGATION GENERALLY • Failing to Pay o Where Court makes interlocutory order, if party liable to pay costs fails to do so, THE COURT MAY:  Dismiss the PROCEEDING (IF PARTY IS PLAINTIFF) 63.03(3)(a)  Strike out the DEFENCE (IF PARTY IS DEFENDANT) 63.03(3)(b) COST OPTIONS • Costs Reserved: Question of costs of interlocutory proceedings is deferred until proceeding is finalised • No order as to costs: Parties bear their own costs of a hearing o IF SILENT AS TO COSTS: TO BE DECIDED ON A PARTY/PARTY BASIS • Costs in the cause: Costs are to be borne by the party that ultimately loses the action • Costs in any event: Winner of interlocutory proceedings gets costs regardless judgment at trial • Costs Thrown Away: Costs wasted because steps already taken become pointless, to be borne by party that caused them to become pointless • Costs follow the event: The Indemnity Rule – winning party has costs paid by the losing party • Costs of the action: entire duration • Costs of the trial: only period/duration of trial

multiple party cost orders

P succeeds on claim, D succeeds on counterclaim P WINS ON CLAIM, D WINS ON COUNTERCLAIM • General Rule o P will be entitled to costs for the claim, and D would be entitled to costs for the counterclaim • Overlap o Issue

o

Some costs will have been incurred in relation to both the claim and the counterclaim Answer

o

 Call Batman, he will know what to do If Batman is Unavailable



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  

Court has discretion to do what it feels is appropriate Depends on the circumstances Options: • Offset • Apportion in proportion to the awards made • Apportion in proportion to percentage time spent on each claim

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WHERE CLAIM SUCCEEDS AGAINST ONE D AND FAILS AGAINST ANOTHER GENERALLY • General Rule o Losing D pays Ps costs o P pays the winning Ds costs • Alternatively: MPO o Court can exercise its discretion to award a ‘multiple party order’ including:  

Bullock Sanderson

BULLOCK ORDER • General Rule o Losing D reimburses P for winning Ds costs o Explain that Please? Losing D pays Ps costs P pays the winning Ds costs • Losing D reimburses P for the payment of the winning Ds costs • Thus P bears the risk if losing D becomes bankrupt (for example) and cant reimburse P Vucadinovic v Lombardi & Meyers (Ors) When Will a BO be Granted? o TEST  

•

Is it reasonable for the unsuccessful D to be liable for the Ps costs AND the costs of the successful D? Application 

o



Must if the losing D did something to induce the P into suing the winning D • If the unsuccessful D did nothing to lead the P into suing the successful D, it is difficult to see why the unsuccessful D should be liable for the P’s error of judgment in suing that D Gould v Vaggelas (1984) 58 ALJR 560

SANDERSON ORDER • General Rule o Losing D pays the winning Ds costs directly o Explain that Please?

•

•

 Losing D pays Ps costs AND the winning Ds costs  Winning D bears the risk if losing D becomes bankrupt Grounds for Granting o Same as Bullock o In deciding whether to grant Bullock or Sanderson, just look at the specific case Difference to Bullock Order o The only difference is where the losing D has no money 

Bullock: Bankrupt losing D can NOT reimburse P, so P is out of pocket

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Sanderson: Bankrupt losing D can NOT pay winning Ds costs, so winning D is out of pick

Quantum of Costs WHERE PARTIES CAN NOT AGREE ON COSTS • General Rule o If parties cannot agree on costs, then the matter goes to the Taxing Master 63.38 • Formalities o Must be initiated by summons (Form 63A) r63.38(1),(3) o The parties must issue a bill of costs in the appropriate form which details all costs incurred  Bill of costs must be filed and served as an attachment to the summons • Taxing Master o Parties appear before the Taxing Master who makes a determination on each costs r63.35 o Will have regard to Appendix A of SCR which contains a scale of costs

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15) ENFORCEMENT WHAT IS IT? • If the judgment debtor (loser) does not obey the order, the successful party can take steps to enforce CONTEXT • Where loser doesn’t obey the order GENERAL RULE • General Rule • Will JD seek a stay? • JCs discovery to gather information • Mode of enforcement • Enforcement against non-parties

GENERAL INFO ON ENFORCY GENERAL • NOT Self Executing o Judgments are NOT self-executing o If judgment debtor does NOT obey the order – successful party can take steps to enforce • Incentives for Judgment Debtor to Obey o Interest o

 Accrues at 15%, which is far higher than the commercial rate Enforcement Costs

o

The Judgment Debtor is liable for any costs incurred by the successful party to enforce the judgment Property 

Property sold to enforce judgment debt usually realises a price less than market value Why would the JD not pay? o No capacity (payment would force bankruptcy) o Ignorance of issues (SCA s57-60) / cost conseqeunces o Desire to appeal o Belligerence Timing o JC has 15 years to enforce the judgment LAA s5(4) 

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•

ONCE THE JUDGMENT IS GIVEN • Authenticated o Judgment must be authenticated (court seals a form setting out the details of the judgment)

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•

•

Party Names o Parties are now referred to as the Judgment Creditor (winner) and Judgment Debtor (loser) Pre-Trial Discussions o Due to the possibility that JD can NOT or will NOT pay, it is vital to discuss enforcement, costs and risk of non-satisfaction with client BEFORE proceedings are issues, or a defence is filed

Stay of enforcement STAY OF EXECUTION • Rule o JD may apply for a stay of execution to delay the judgment r66.16 o JD must show ‘special circumstances’ • Discretionary o At the discretion of the court • In Practice o Application is often made immediately after judgment, to the judge hearing the matter o Stay is usually set for a period of time (e.g. 30 days) • Effect o JC can NOT enforce the judgment until the end of the stay period

Modes of Enforcement SPECIFIC MODES OF ENFORCEMENT • Rule o P who has succeeded is ‘entitled to the fruits of its judgment’ Annot • Modes of Enforcement o Which are Avail?    o

Generally most modes of enforcement are available to any JC Some are more suited to money judgments Best mode will depend on the financial circumstances of the JD • Can use DISCOVER IN AID OF ENFORCEMENT O67

Types 

Warrants • Warrants of seizure and sale • Warrant of possession

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Bankruptcy • Appointment of receiver • Bankruptcy / winding up

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Third Party • Attachment of debts • Attachment of earnings 156 | P a g e

 

Charging order Instalment order

GATHERING INFORMATION • Rule o JC can user Discovery in Aid of Enforcement Order 67 to assess JDs assets and establish which enforcement order is appropriate • Service o Must be served personally • Application o JD attends court and produces any documents/oral evidence about any property capable of satisfying the debt R67.02(1)

WARRANT OF SEIZURE AND SALE • Rule o JC can apply for a warrant of execution (seizure & sale) r68.03 • Formalities R68.04 o JC will apply without notice to Prothonotary using Form 68A o JC pays fees o Prothonotary will forward SEALED COPY TO SHERRIFF FOR EXECUTION WITH A DIRECTION FOR THE SHERRIFF TO SEIZE AND SELL PROPERTY TO SATISFY THE WHOLE JUDGMENT DEBT (INCLUDING COST OF WARRANT, PAST WARRANTS, JUDGMENT, COSTS & INTEREST) • Timing o Warrant will be valid for 1 year and may be extended for 1 year R68.05 • Seizure of Goods o Forced Entry

o

 Can NOT force entry  If entry is not permitted, only option is to sue for contempt of court Type of Property AVAILABLE FOR SEIZURE

o

Real property, personal property, money & bills of exchange TB 1235 Sherriff does NOT have to remove assets, it is sufficient to place a notice on the goods saying they have been seized Excluded Property  

Property THAT WOULD BE PROTECTED IN THE EVENT OF A BANKRUPTCY CAN NOT BE SEIZED S42 SCA Where a Third Party Claims Ownership of Seized Goods o Rule 

•

o

 Party claiming interest must file notice with the Sherriff R12.03 Interpleader Summons

o

If JC chooses to dispute the claim, the Sherriff will apply to the court for a determination as to whose property it is R12.07 Context 

 

Friends property Hired property 157 | P a g e

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Sale of Seized Goods o Auction

o

Must be at auction first, and then can be sold at private sale if auction fails to attract adequate bids Moveable Property First

o

 Should sell moveable property before real property Process of Sale (Cams Notes as Probably Not Examinable)

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





Order of Sale [per r69.04] • (1) “…Where it appears to the Sheriff that the property subject to levy unde a warrant is more than sufficient to satisfy the amount to be levied, he shall take or sell so much of the property as appears to the Sheriff to be sufficient” • (2) Subject to paragraph (3), Sheriff shall take or sell propety: o (a) In such order as seems to the Sheriff best for the prompt execution of the warrant without undue expense; • (3) Land shall not be put up for sale under the warrant until all other property liable to sale under the warrant has been sold unless the debtor requests Time, Place and Mode of Sale [per r68.05] • (1) “… shall upt up for sale all property laible to sale under a warrant: o (a) As early as may be having regard to the interests of the parties AND o (b) At the plae which seems to the Sheriff best for a beneficial sale of the property • (2) In the case of property, other than land, which is liable for sale under a warrant, the Sheriff may as the Sheriff thinks fit sell the property either by private contract OR public auction Advertisement of Sale (per 69.06)

BANKRUPTCY AND WINDING UP • Process o Bankruptcy notice is served on the JD which requires payment in 14 days TB 1281 o Failure to pay constitutes an act of bankruptcy which entitles the JC to present a bankruptcy petition TB 1281 o If JD is then declared bankrupt, trustee in bankruptcy is appointed to release the bankrupts assets TB 1281 • In Practice o May be better getting an instalment order as JDs current assets may not satisfy the claim, especially considering there may be other creditors that need to be paid

ENFORCEMENT AGAINST THIRD PARTIES • Context o JC may be able to collect from a TP who owes the JD money o Referred to as an ‘attachment of debt’ • Attachment of Debts o Owing and Accrued The debt must be owing and accrued r71.02 • You can NOT attach a future debt Bank Accounts 

o

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o

 Includes any amount in the bank account of the JD r71.03 Court Order

Requires a court order to be made r71.04 Apply on summons with affidavits (notice is not required) • Orders must be filed and served on non-parties Attachment (Garnish) of Earnings o What is it?  

•

Where the JC is paid a regular amount directly from the earnings of the JD  Note it is highly regulated by Order 72 Requirements 

o

  

Court must be satisfied earnings are/will be payable to JD Can NOT garnish to reduce earnings below the protected earnings rate r72.05(5) Can be adjourned to allow employer to attend or provide information on earnings

CHARGING ORDER • What is it? o Court orders a notice on the property so that it shows an interest r73.02 o Often done with shares or securities o Kind of like a caveat, but without a property interest and with way more chocolate  Gives preference over unsecured creditors

INSTALMENT ORDERS • What is it? o JD asks that his debt be paid off in instalment Order 61; Judgment Debt Recovery Act 1984 • Application o Often done with the consent of the JC o It is possible to vary the terms later on application o When granted, operates as a stay of other enforcement methods s9 JDRA • When Will it be Granted? o Court will consider: Reasonableness of payment period JDs genuine ability to pay the instalments • Necessary living expenses of the JD What if JD Does NOT Pay Instalments? o Court can imprison JD for up to 40 days if he persistently and wilfully defaults without an honest and reasonable excuse s19 JDRA  

•

References: Notes and format are based on Nat Devitsakis’ notes 159 | P a g e

James Hertan and KEARA STRETTON’S NOTES HAVE BEEN ADDED BATMAN WAS VERY HELPFUL CAM HARVEY’S NOTES HAVE BEEN ADDED STUDY DISCUSSIONS WITH LACHLAN SALT, ANNA O’CALLAGHAN, ALEX YORSTON, MIKE BAILEY & KEARA STRETTON HAVE BEEN ADDED Lecturers were Greg Reinhardt, Karinne Ludlow, Randall Kune

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