CIVIL PROCEDURE TEMPLATE 121 Sanctions for non-compliance

Key element from Skyshades case someone was supposed to do work and they didnt put in a The duty to advise/consider ADR Early listing of cases for hearing
claim Professional codes of conduct and rules of court impose an obligation on practitioners to inform Strict control of adjournments
Set out what main facts that B should include in her Statement of Claim : clients about alternatives to litigation. Early exchange of documents
Most important facts (These set up the cause of actionhere, breach of agreement ) ADVOCATES IMMUNITY Pre-trial hearings and settlement conferences at which directions are given
-who the parties are Giannarelli v Wraith (1988) 165 CLR 543. Consideration given to use of ADR procedures
-that the Pl and Def entered into an agreement Barristers and solicitor advocates are generally immune from actions of negligence arising from
-the date of the agreement what they do in court. Chamberlain
-the terms of the agreement (i.e. Bob was going to do work on the house)what Libby calls -Experts determined that substance was foetal blood but in fact it was rust spray
the promises i.e. from Bob and from Barbara However a barrister owes the client a duty to exercise reasonable care and skill in providing -Stated that dingo would not be able to get the baby out of the jumpsuit; later deemed that it
-performance of the terms (i.e. what did Bob do/not do here that he promised) this is setting out-of-court professional services but no such duty arises in relation to in-court services. was in fact possible
up the breach -Parties might shop around for a favourable opinion, and
-the claim that youre making DOrta-Ekenaike v Victoria Legal Aid & Anor Counter the other partys expert/s by getting one or more of their own.
ESSENTIALLY YOU NEED: HCA: Confirmed the immunity, citing policy reasons including desirability of finality of litigation Now, primary obligation of an expert is to the court.
**The FOUR Ps parties, promises, price and performance this is when youre pleading Parties are encouraged to agree jointly to instruct an expert one expert only.
CASE MANAGEMENT
breach of agreement these show cause of action which gives rise to relief /remedy Adverse costs order may be made if the court considers a single expert would have assisted.
make distinction between material facts and evidence (i.e describing house as red brick on Lord Woolf (Eng, mid 1990s): litigants must accept that, once they commence proceedings, they Where you call more experts than necessary you have to pay an adverse cost order
one acre of land this is evidence!) no longer have sole and unfettered control over the way in which they take the case forward. Changing roles
CHECKLIST CM: court supervision and control of cases from the time of their commencement to their Judges more interventionist (with immunity).
1. Parties disposition. Practitioners need to become highly skilled risk assessors (immunity in some jurisdictions).
2. Causes of action
3. Jurisdiction Two Models Adversary system there is less party control but arguably reforms ensure due process and
4. Time limitations 1. Individual list or docket: case is assigned to an individual judge who is responsible for natural justice.
5. Procedure (forms, issue, service) managing it until final disposition. Sali v SPC Ltd:
6. Interlocutory matters 2. Master list: cases controlled by the court registry, assigned to different judges at different -4 Weeks were crossed out for trial and the solicitors wished to amend documents 4 days into
times for different purposes or milestones. trial; request for amendment was refused.
THE BASICS
CIVIL PROCEEDINGS Most courts: Differential case management (DCM), recognizing that cases have divergent CM The courts have limited time; justice delayed is no justice at all: Courts must weigh up the
requirements.
Commenced by Plaintiff issuing a formal Claim against the Defendant benefits of determining the truth and efficiency.
Qld Supreme Court:
Matters in dispute are narrowed - through:
>Has a master list (with events/landmarks and timelines for each)
Pleadings: such as Notice of Intention to Defend, Counterclaim, Interlocutory When the request is made to amend documents; there must be a weight between hearing all
>Has also created specialist lists for particular types of disputes: causes of action and efficiency
proceedings.
Disputed issues are prepared for trial: Queensland v JL Holding Pty Ltd 1997.
Supervised case list for complex cases/cases requiring more than 5 days trial, managed by a
-Directions hearings and pre-trial conferences Aon Risk Services Ltd v Australian National University [2009] HCA 27 [2009] HCA 27 (discussed
supervised case list judge by Bamford p 86)
-Plaintiff must prove its case against the defendant on the balance of probabilities
Commercial cases list where cases are managed by a Commercial list judge.
evidence.
All cases are regulated by Practice Direction.
STEP 1 JURISDICTION
Substance, (Procedure is the final ingredient) STEP 4 COMMENCING AN ACTION/JURISDICTION
S. Ct of Qld Practice Direction No 4 of 2002
Affidavit first person written legal document and the only information that can be included is GEOGRAPHICAL JURISDICTION
4.3 Where a request for trial date has not been filed 180 days after the date of filing of notices
evidence, some rules prevent relevant material being included due to evidence rules. The jurisdiction of the courts in Australia is defined:
of intention to defend, the Registrar may call on the plaintiff by notice to the effect of CFM2 to
show cause why the proceedings should not be deemed resolved. Horizontally, Vertically; According to subject matter and the amount disputed, consider
Call Over: A way of determining the progress of a legal proceeding and gauge how long it will be Defendants location.
4.4 Plaintiff must show cause within 21 days of the date of the notice.
until parties are ready for trial. General principle
Resolved proceedings are de-activated.
>Today Judges are more proactive in uncovering the reasons why cases are not ready for trial The jurisdiction of a particular court is confined to the district in which it is constituted.
speeding up the process. R. 35 UCPR: proceedings must be commenced in the district:
All Federal Court registries: individual docket system cases randomly assigned to a particular
judge who manages the case until disposition gives it continuity and eliminates the need to In which all or part of the claim or cause of action arose, or
REFORM & CASE MANAGEMENT explain the case afresh each time. In which the defendant (or one of them) lives or carries on business
Parties may consent to commencement in a particular district of the Mag Ct or D
1. Over dependence on party-control Ct
There are conflicting views as to the relative weight to be given to court efficiency and the
2. Absence of judicial responsibility for effective use of resources See Rule 35 for more specifics
interests of the parties to the individual cases.
3. Over dependence on an all-embracing trial
Sali v SPC Ltd
Has brought about a need for reform See RR 39 (M Ct); 44 (D Ct); 48 (S Ct) UCPR
Queensland v JL Holding Pty Ltd no longer good law
Aon Risk Services Ltd v Australian National University Bamford 86--French J: whatever costs -Defendant may object if proceedings are commenced in the wrong district , these provisions
R 5 UCPR: The purpose of these rules is to facilitate the just and expeditious resolution of the allow for either correction or dismissal of the objection.
are ordered there is irreparable element of unfairness in delaying proceedings about public
real issues in civil proceedings at a minimum of expense Where the Defendant is Overseas
perception!
Althaus-said: abuse of process and scandalous-if you have good reason to amend and you do Where proceedings are instituted in the correct district but the defendant has moved
R3 UCPR: Establishment of greater uniformity in the Rules of Court with a single set of rules overseas/interstate
it in timely matter thats usually ok --but incompetence leading to delays should not be
applicable to the Supreme, District and Magistrates Courts, unless the rules otherwise expressly UCPR r 123 provides for service of process issued in one state or territory court upon a
rewarded
provide defendant in another state or territory, providing it is served in accordance with s 15 of the
Systematic court control Service and Execution of Process Act 1992 (Cth).
-Case management, increased strategic importance of offers of settlement, streamlining the
A stipulated and fixed timetable for events
process of collecting and evaluating evidence.
-Service then has the same effect as if the process had been served in the place of issue (s 12
SEPA).
Rules 124-129 UCPR Permits service of process outside Australia, in certain circumstances
MONETARY JURISDICTION
Lower courts - State Hierarchy: Magistrates Courts:
-Have original jurisdiction: w.r.t actions<150K
See the Magistrates Courts Act 1921 (Qld), s 4 (a).
s 4 (c) MCA-equitable claims or demands, where only money/damages sought and the amount
claimed is Actions<150K,
s 7 MCAMags Court has no power to deal with cases in which the title to land/validity of a
devise/bequest/limitation under a will or settlement, is in question
Consent to jurisdiction
S 4A MCA- Where parties agree that that a Magistrates Court may have jurisdiction in relation
to the amount, the Magistrates Court has jurisdiction for the proceeding even where the
jurisdiction should belong to the D.Ct/S.Ct Courts
Parties may abandon excess
S 5 MCA - In order to accommodate the limits of a courts jurisdiction the parties may abandon
excess/deduct a sum for which the plaintiff gives the defendant.
But note provision for Simplified Procedures in UCPR. Apply to minor claims: Sch 4: a claim
for an amount, including interest, of not more than $25,000 (does not include certain claims
that are within QCAT jurisdiction).
See the UCPR rule 514.
QCAT LEGISLATION
o Queensland Civil and Administrative Tribunal Act 2009 (Qld)
o Queensland Civil and Administrative Tribunal Regulations 2009 (Qld)
o Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
Qld Civil & Administrative Tribunal
Tribunal has
(a) Original jurisdiction;
(b) Review jurisdiction; and
(c) Appeal jurisdiction (Act, s 9)
The tribunal has (original) jurisdiction to hear and decide a minor civil dispute (Act, s 11).
Minor Civil Dispute
Sch 3 Act to include:
Debt disputes
Consumer and trader disputes i.e. Contracts for goods and Services
Claim re damage to property caused by or arising out of use of a vehicle
Claim for repair of a defect in motor vehicle
Where the parties agree they can use simplified procedures: R 514 (2)-516 UCPR: Providing the
amount claimed is not more than $25,000 (Sch 3 Act).
S 33 QCAT proceedings are commenced by application.
S 43(1) QCAT All parties must represent themselves, unless the interests of justice require
otherwise.
S 43(2) QCAT may be represented by someone else if-
(i) The party is a child or a person with impaired capacity; or...
(iv) The party has been given leave by the tribunal to be represented.
Qld Civil & Administrative Tribunal
S 43(3) QCAT the tribunal may consider the following in an application for leave--
(a) The party is a State agency;
(b) The proceeding is likely to involve complex questions of fact or law;
(c) Another party to the proceeding is represented in the proceeding;
(d) All of the parties have agreed to the party being represented in the proceeding.
S 52 QCAT Matter started in QCAT can be transferred to court IF
1. QCAT doesnt have authority
2. Or more appropriately dealt with by a court, either by application of a party/s or on its own (a) is the superior court of record in Queensland and the supreme court of general jurisdiction
motion. in and for the State; and (b) has, subject to the Commonwealth Constitution, unlimited
S. 53 QCAT: Courts can transfer matters to QCAT jurisdiction at law, in equity and otherwise.
S 142 QCAT: QCAT decision can be appealed, in some instances to Court of Appeal 28 days
from receiving reasons; in other instances to Internal Appeal Tribunal -Constitution limits in some ways by giving express jurisdiction to the high court
S 75 QCAT: matter can be referred to mediation, with or without consent of parties. -The Supreme Court has inherent jurisdiction
S 100 QCAT: each party usually bears own costs. Inherent jurisdiction
ss 129-132 QCAT: Enforcement proceedings of QCAT decisions are taken through the MAGS -In addition to their statutory jurisdiction, the Supreme Courts have an inherent jurisdiction
Court deriving from their status as superior courts of record.
Intermediate courts - State Hierarchy: District Courts -They have an inherent jurisdiction to properly exercise their power, perform their functions
District Court of Queensland Act 1967 and to control abuse of process.
s66 & 68 -Such as: Struck off the roll: Big registry of admitted solicitors
-Original jurisdiction; limited to claims that are more than $150,000 but less than $750,000: Federal Courts - 4 separate courts
-Has become the main trial court in Queensland The High Court of Australia
The Federal Court of Australia
S 72DCQA Consent to jurisdiction: Where parties agree, jurisdiction to try any action which The Family Court of Australia
might be brought or any counterclaim which might be made in the Supreme Court: The Federal Magistrates Court
High Court of Australia
S 73 DCQA Jurisdiction exists if plaintiff abandons excess under -There is not original Criminal Jurisdiction and no criminal matters are prosecuted for the first
E.G. Notwithstanding the fact that the claim is 800,000 the parties will agree to hear the time in the HCA
matters in the district court which is within the jurisdiction: Potentially abandoning a sum from -The High Court of Australia is the highest court of appeal but appeal is only by special leave.
the claim in order to comply with the courts restraints. -You only have 20 minutes to appeal your case to the HCA
District Court Exclusive Jurisdiction is subject to S 38 Judiciary Act
- Appellate jurisdiction from the Mags Ct -Appellate civil jurisdiction (Full court)
- Appeal may lie from a decision of an intermediate court to a superior court. -Single HC judge
-There is no common law power for appeals and therefore regulated through statute -State Supreme Court, Court of Appeal (by special leave)
Superior courts - State Hierarchy: The Supreme Courts -Appellate criminal jurisdiction
-Have inherent original jurisdiction & can hear anything -Court of Appeal from the State Supreme Courts (by special leave)
-Usually $750,000 plus. Original jurisdiction of High Court
-Pushes down matters that can be dealt with by MAGS/DISTRICT Cth Constitution: Original jurisdiction - High Court:
-If a matter is commenced in the Court which could be heard in a lower Court a costs penalty See Section 75/ of the Commonwealth Constitution
may be imposed on the plaintiff. S76 The Parliament may make laws conferring original jurisdiction on the High Court in any
-Starting a trial in the Supreme Court incurs a cost penalty matter -
Appeals
S 30 Judiciary Act: The High Court shall have original jurisdiction:
Appellate jurisdiction from courts lower in the hierarchy. (a) In all matters arising under the Constitution or involving its interpretation; and
Appeals from lower courts are normally disposed of by a single judge of the Supreme (c) In trials of indictable offences against the laws of the Commonwealth.
Court.
There is no common law right of appeal. S 44 Judiciary Act
The appeal procedure is created by legislation. Jurisdiction of the HCA exclusive to all other courts:
Always check the relevant legislation before commencing an appeal.
An appeal lies from a decision of a single judge of the Supreme Court to the Full Court of a) Matters arising directly under any treaty;
the Supreme Court constituted by three judges b) Suits between States, or between persons suing or being sued on behalf of different States,
For each of the states and territories, or between a State and a person suing or being sued on behalf of another State;
What happens if you commence in the wrong court c) Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a
Not referring now to the wrong district but the wrong court State, or any person being sued on behalf of a State;
The court may transfer proceedings up or down as required d) Suits by a State, or any person suing on behalf of a State, against the Commonwealth or any
S Ct of Qld Act 1991, s 75(1) person being sued on behalf of the Commonwealth;
District Court of Qld Act 1967, s 78 e) Matters in which a writ of mandamus or prohibition is sought against an officer of the
The State/Federal divide Commonwealth or a federal Court.
-Recall that the Supreme Court has unlimited general jurisdiction State/federal: division of jurisdiction
-Courts in the federal system have specific jurisdiction, defined by legislation. General rule:
-Quite different to courts in the federal system because courts in the federal system have
State and territory courts deal with matters arising under State or Territory
specific legislation
jurisdiction.
Courts within the federal system deal mainly with matters arising under
S 58 S Ct of Qld Act
Commonwealth legislation.
(1) The Supreme Court has all jurisdiction necessary for the administration of justice in
Cross Vesting Scheme
Queensland.
Re WakimFed courts do NOT have state jurisdiction
(2) The court:
BUT
Fencott v Mullerif the facts are so intertwined and the issues arise out of the one fact S 11 Qld Cross Vesting Act Claim must have been issued before the last day of the third year
scenario, Fed courts an hear State matters Provides for the appropriate law to be applied in the conduct of proceedings involving cross-
vested matters: Main legislative provisions (for purpose of this course):
Pegasus Leasing V Cadoroll Pty Ltdfed court and supreme court proceedings defence of (a) apply the law of the hearing court UNLESS Limitation of Actions Act 1974 (Qld)
statute barring could be raised in SA but NOT in fed court; P was in SA but all of C was in NSW (b) the right of action arises under the written law of another State, then apply the s 5 (interpretation section),
and ACT; unfair to have chance in SA that you wouldnt have elsewhere; based on time and cost written and unwritten laws of that State BUT Ss 10, 10AA, 11,
and fairness (c) the rules of evidence and procedure to be applied are those the hearing court ss 27-31, 38.
considers appropriate in the circumstances.
Main thrusts of cross-vesting legislation - there are 2 of them: There is no power for the Cth or for States to invest State jurisdiction in federal courts. Rationale:
To protect Defendants
S.Ct H.Ct, F.Ct Exclusions from the scheme Plaintiffs should commence actions in a timely fashion
-Allows H.Ct/F.Ct to invest power in State Courts Certain matters are expressly excluded from this scheme. Need for certainty
-You cannot enlarge the jurisdiction of courts in the federal system as those powers arise S4 (4) CVAC: This section does not apply to a matter arising under: Evidential problems
through the constitution (a) The Conciliation and Arbitration Act 1904; or Matter brought to trial without lengthy delays
(b) The Workplace Relations Act 1996; or Reduced costs
-Cross Vesting legislation enables Federal Court to shoot matters to the S.Ct through cross (ba) the Native Title Act 1993; or LIMITATION PERIODS
vesting effectively allowing state courts to utilise federal jurisdiction (c) Section 46A, 155A or 155B of the Trade Practices Act 1974; or s 10 LAA If the cause of action is contract or tort and the damages that your client is seeking is
-Logical as it allows for federal court matters to be heard concurrently with matters dealt with (d) Some provisions of the former TPA (Australia Consumer Law). not personal injury allows for 6 years before you must commence proceedings.
in the State Courts. A Federal Court might have accrued jurisdiction or associated jurisdiction. s 11LAA-Action for damages for personal injury or injury resulting from death (based in
-Supreme Courts in the States and territories can transfer matters between themselves Accrued jurisdiction: A federal court may exercise jurisdiction to determine a non-federal negligence, trespass, nuisance or breach of duty): 3 years
-State court jurisdiction can be enlarged and can deal with federal court matters aspect of a matter within federal jurisdiction if it forms a part of that matter/part of the same Therefore
-The reason they can enlarge the jurisdiction is because they have unlimited jurisdiction controversy (Where no personal injury is involved you go to s 10)
-A federal Court can transfer a matter to a state of territory court (Supreme Court) (eg F.Ct had jurisdiction to decide a passing off claim in an action which also involved alleged Note: S11(2) dust (asbestos) related PI claims not subject to a time limitation
-Magistrate & District Court: There are provisions for a matter to be transferred up to a contravention of TPA).
Supreme Court and then transferred over S 10AA: Defamation actions:
Associated jurisdiction: Courts within the federal court structure can exercise each others -Action must not be brought after the end of 1 year from the date of the publication
1. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): jurisdiction complained of.
-State and Territory Supreme Courts -You must know sections and time limitation periods
s 77(iii) All superior courts are invested with federal jurisdiction. Possible becauseCth STEP 5 TIME LIMITATIONS STEP 2 TIME LIMITATIONS
Constitution expressly provides for the Cth parliament to invest state courts with federal judicial s13 actions for the recovery of land
power Limitation Periods and Time Limits are two separate things S25 actions to recover rent
Limitation period time between cause of action arising and commencing proceedings S26 actions to recover monies secured by mortgage
2. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) Time limits various time limits prescribed under the UCPR S43 acquiescence equitable relief can be refused
-All superior courts are empowered to transfer matters to other superior courts; and R 24 12 months to service claim
Three step approach to these questions:
-The State and Territory Supreme Courts also have cross-vested jurisdiction in state and
When does time begin to run 1. What is the Cause of Action?
territory matters.
Time begins to run when the cause of action accrues or is complete: All elements of action exist 2. When does the time start and end for each ation?
-Possible because the superior courts of the states/territories have unlimited general
3. On what grounds may the limitation period be extended?
jurisdiction
- State Courts are subject to the same limits that Federal Courts are when using the power Cartledge v Jopling Extension of Time
cross vested to them. Where proof of damage is an essential element of the cause of action (eg negligence, nuisance) Extensions are available under the LAA and UCPR.
period commences as soon as the plaintiff suffers damage, In counter-claims: s42 LAA
Result is that, in certain circumstances, NOT By amending proceedings to add new causes of action and parties: r 69 & r 376 UCPR
A federal court can transfer to a state/territory court The time of commission of the wrong Persons under a disability: s29 LAA
A state/territory court can transfer to state/territory courts. Or Mistake or Fraud: s38 LAA
The time that the damage became known to plaintiff or discoverable by him/her Personal injuries: ss 30, 31 LAA
Inferior courts - included in the scheme in only a very limited manner Read Rules 175-185 regarding counter-claims and note
This accepted C v J: Hawkins v Clayton, a case where the claim was for purely economic loss. S.42 LAA
S 8 Qld Cross Vesting Act -Original case stating that time begins to run when the damage is first incurred not when the "For the purposes of this Act, a claim by way of set-off or counterclaim shall be deemed to be a
-Provides for the Supreme Court to remove proceedings up into the Supreme Court for the damage is known about later extended separate action and to have been commenced on the same date as the action in which the set-
purpose of considering transferring them in accordance with the scheme. off or counterclaim is pleaded".
Circumstances in whic76h X-vesting can be used Pirellis case, which involved property damage SS 35-37 Acknowledgements and part payments
-The courts should in most situations continue to hear and determine only proceedings that -Time runs from the point at which the Plaintiff first suffered damage regardless of the cause of
would otherwise fall within their ordinary fields of jurisdiction. action. R 376: Situation where amendments after limitation periods are allowed
S 5 Qld Cross Vesting Act: Correcting the name of a party
Transfer may take place in two instances: Commonwealth of Australia v Cornwell when there is more than one cause of action, you use Capacity in which the plaintiff sues
Where related proceedings have been commenced in different courts participating in the the lower limit Include a new cause of action
scheme - one court may transfer proceedings to the other court when it is appropriate and in Legal Disability
the interests of justice. Event occurs; cause of action is complete if 3 year time limit:
Read ss.29 (1) & (2) and definition s.5 (2) (3).
Time starts to run next day
(a) Infants: The time will begin to run on obtaining majority: 18 years of age
In relation to any pending proceedings, where it is more appropriate and in the interests of 365 days: year 1
(b) Persons of unsound mind: Period commences once capable of handling affairs.
justice 365 days: year 2
(c) Convicts in prison
365 days: year 3: time is up!
 These people do not have the capacity to act for themselves Is ADR an option before proceedings are issued?
Legislation says that time begins to run when the disability ceases (Infant, Someone in a coma, Lawyers commencing legal proceedings on behalf of a client where there is no legal merit may
someone in prison) be an abuse of process
-Where the disability doesnt end; person who is in charge of their estate has the capacity to S345 Legal Profession Act 2004 (NSW) outlines that legal practitioners must act reasonably
sue on their behalf S347 Restrictions on commencing proceedings without reasonable prospects of success
S348 Cost orders against law practice acting without reasonable prospects of success
-Either wait three years until 18 years old or obtain a litigation guardian to administer on their Cost Orders Against Practitioners
behalf -Courts - inherent jurisdiction to award costs against legal practitioners.
-Where there is no guardian, hospital can appoint the public trustee in order for an action to be -Should only be invoked where there has been a serious dereliction of the practitioners duty to
brought. the court.
PT: A non aging Institution -Pursuit of a hopeless case does not necessarily amount to a breach of duty.
Extension for Personal Injury matters -Institution/continuance of proceedings where the client has no or substantially no prospect of
S 31: In an action for damages for personal injury or damages for injury resulting from the death success is also not necessarily a breach.
of any person White Industries v Flower & Hart (1998) 156 ALR 169
-Matches up with s 11 LAA The court will make an order for costs where the practitioner unreasonably initiates or
-Fairly complex section; if you think someone falls within this category you need to do some continues those proceedings.
research
Section 31 is worth considering A practitioners action = unreasonable
-Whether or not it is a decisive character -Where ulterior purpose in instituting the proceeding
-If you might be able to satisfy -Such as buying time for a client about to become bankrupt
-The practitioners actions amounted to an abuse of process: Costs orders against practitioners
31(2) where it appears to the court that there is: to pay the defendants costs on an indemnity basis
A material fact (s.30 (1) (a))
of a decisive character (s.30(1)(b)) Balance of Principles
relating to the right of action Where the case has little chance of success
which was not within the means of knowledge of the applicant (s.30(1)(c)) Balance of competing principles
until a date after commencement of last year of limitation period
And: there is evidence to establish a right of action; A party is entitled to have a practitioner act for him or her even in an unmeritorious case
Court may order extension for 1 year from THAT DATE But, lawyers must not commence a proceeding without any, or any proper, consideration of
the question whether the proceeding has any prospect of success at all.
(If you satisfy all of the elements of 32(2) and you discover material fact of decisive character in Levick v Deputy Commission of Taxation, the Full Ct of the Federal Ct of Aust. agreed with
the final year: you are granted a 1 year extension from that point. views in White Industries.
-Only where there is something that couldnt be discovered within the timeframe
Unreasonable conduct must be more than acting on behalf of a client who has little or no
Postponement in cases of fraud or mistake
prospect of success. There must be something akin to abuse of process; that is, using the
S 38 (1) Where...
proceeding for an ulterior purpose or without any, or any proper, consideration of the
(a) The action is based upon the fraud of the defendant; or (defendant is concealing something)
prospects of success. [44].
(b) The right of action is concealed by the fraud of a person referred to in paragraph (a); or
(c) The action is for relief from the consequences of mistake;
Considerations
Courts have indicated that they will consider whether the lawyer:
The period of limitation shall not begin to run until the plaintiff has discovered the fraud or
-Had sufficient knowledge of the case to justify pursuing it;
could have with reasonable diligence have discovered it.
-Caused a letter before action to be written;
-Considered settlement;
Note: Protection of 3rd parties in s 38(2)
-Had a proper grasp of the issues;
-Time begins to run when it is discovered or with reasonable diligence ought to have been
-Had turned his or her mind to the relevant law and facts;
discovered
-Had read the relevant authorities, and
-Solicitor who is told to institute proceedings: Time Limitation Period expires
-Had advised the client that his or her chance of success was very poor.
PROCEEDINGS
Case Examples: **** ADD***
Relevant rules, RR 8-16 UCPR
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
2 principal forms of originating process
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628
Claim: (in Qld)
Dick v University of Queensland [2000] 2 Qd R476
[Form 2] is used to commence proceedings where there is a dispute between two
Castensen v Frankpile Australia [2004] QSC 145
or more persons; generally involving disputed facts may also involve legal
Competing interests see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR
argument.
541 application under s31 LAA
Rule 9 provides that a proceeding must be started by claim unless the rules
Queensland v Stephenson (2006) 226 CLR 197
require/permit the proceedings to be started by application.
STEP 3 CONSIDER ESTOPPEL
Claim is your fallback position: 2nd form of initiating proceedings
Claim + Statement of Claim (Form 2 + Form 16)
STEP 6 PROCEDURE STEP 3 PROCEDURE In Qld, legal disputes started by an originating application UCPR 11 Form 5 Can be renewed --> Need leave to renew if stale for 5 years
Ethical considerations: Rule 11: If there is insufficient time, a party can start with an application
Does the claim have merit?
Application: (for HC)
[Form 5] is used where the only or main issue is one of law and a substantial
dispute of fact is unlikely; or
There is no opposing party; or
Urgent relief is sought
Applications if respondent served with application and affidavit(s) no requirement to file NITD.
In Qld the originating process is either a claim or an application.
>Claim: Where contentious facts.
>Application when resolving conflicts of law.
Pleadings are delivered only for proceedings commenced by claim.
COMMENCING PROCEEDINGS
Originating process:
Describes parties
Details formal particulars
Includes an address for service
Identifies adequately the cause of action(s) and relief sought
See UCPRs R17 as to matters to be contained in the originating process
R10 proceeding must be started by application if an Act or Rules require it and the Act or
Rules do not state the type of originating process to be used, or a type of originating process
(other than a claim or application) is required or permitted under a law
R14 if a a proceeding which should have been started by a claim is started by an application,
the court may order that it continues by application
R 11 a proceeding may be started by application if the only or main issue is of law and
substantial dispute of fact unlikely or no opposing party or not intended to serve any person
with the originating process or no time to prepare a claim due to urgency
R12 oral applications by counsel or solicitor for applicant if urgent relief sought, undertaking
to file application within time directed by court and court considers it appropriate
UCPR r18 representative capacity to be stated on the originating process (see also r 75)
UCPR r 19 signing of the originating process
UCPR r 20 originating process to be filed and kept by court
See UCPR R 6 names of all parties must be included in an originating process and if a change
each document filed after the change must reflect the change
Describing parties adequate and correct descriptions required interests of justice,
transparency and no special deals
DISCLOSURE non-disclosure of identity
J v L & A Services Pty Ltd working with AIDS virus specimens. Fearful of being ostracised.
Court felt that public education was more important than anonymity.
SRD v Australian Securities Commission accountant wanted to suppress his name in order to
protect reputation. Court felt that the public had a right to know.
UCPR R 22 claim must be in the approved form and P must briefly state the nature of the
claim made or the relief sought and attach a statement of claim
If action in MC or DC claim has to show court has jurisdiction
Claim and S of C to be filed and served on each D
Claim sets out brief connection between P and D and gives D notice about claim and relief
sought
UCPR R 23 Claim to include statement to D telling D time for filing NITD ( see R137) and if
not filed default judgment possible
UCPR R 24 life of claim 12 months from date of filing
Stamped and renewal shown
UCPR R 26 applications in approved form, name all respondents, list affidavits relied on at
the hearing, specify orders/relief sought, if made under an Act, name of Act and section
number, hearing date
If filed in DC or MC must show court has jurisdiction
UCPR R 29 Notice of Address for Service filed and served Form 8
Court can also require NAD to be filed and served
What if parties need to seek directions/obtain orders once action under way?
Application made under R 31
Form 9
Respondent = any party whose interests may be affected by the granting of the relief sought
See R 31(4) applications can be made by person not a party to proceedings but must comply
with R 17
R 32 oral applications
NOTICE OF INTENTION TO DEFEND (NITD)
P files and serves C and S of C on D D then files and serves NITD and Defence on P (NITD in
other jurisdictions known as an appearance)
- P cannot get a default judgment if NITD filed
- Shows P D will be defending Ps claim
- Used when originating process is a claim
UCPR R 135 D cannot do anything in the proceedings until a NITD filed, except with courts
leave
UCPR R 136 can defend in person or through a solicitor, but if incapacity, through litigation
guardian (R93)
UCPR R 137 time for filing 28 days after claim served
UCPR R 138 late filing of NITD any time before judgment even if D in default
UCPR R 139-141 approved form (Form 6), have defence attached, be signed and dated, R17
applies in relation to Ds details, must be filed in registry where claim issued
UCPR 142 service on Ps address for service on day filed or as soon as practicable thereafter
CONDITIONAL NITD
UCPR R 144 challenge to jurisdiction or to assert an irregularity
After filing CTID, D must apply for an order under r16 within 14 days
If no application CNITD becomes a NITD and 7 days later D required to file a defence
UCPR 144(6) if D files unconditional NITD taken to submit to the jurisdiction and waived any
irregularities
Approved Forms 6 and 7
VEXATIOUS LITIGATION
UCPR 15 Registrar can refer the originating process to court if the Regisrat considers it to be
vexatious or frivolous
The court has inherent jurisdiction to strike out vexatious claims and claims that constitute a
repetition of a hopeless case.
Vexatious Proceedings Act 2005 (Qld)
s5. Court has the power to make an order on the application of the Attorney General or the
registrar of the Court or, with leave, a person against whom another person has instituted or
conducted vexatious proceedings.
Vexatious proceeding is defined widely to include:
a proceeding that is an abuse of the process; and
a proceeding instituted to harass or annoy, to cause delay or detriment, or for
another wrongful purpose; and
a proceeding instituted or pursued without reasonable ground; and
a proceeding conducted in a way so as to harass or annoy, cause delay or
detriment, or achieve another wrongful purpose.
Freeman v National Bank of Australia
Declaratory relief
Where time is an issue a claim mightnt be time effective; however urgent relief can be
accessed through a form 5 application; INJUNCTION
SERVICE R 113 (1) UCPR this rule applies if
Service: Triggers the Court Process (a) a proceeding is brought against a person in relation to a business carried on by the person
R 105 UCPR: All procedures required to be made to a court must be served in accordance with under a name or style other than the persons name; and
the Rules of Court. (b) the name is not registered under the Business Names Act 1962 (unregistered trading or
What is service? business name); and
The procedure by which a plaintiff informs a defendant of the claim being made against him or (c) the proceeding is started in the name or style under which the person carries on the
her business.
Bring a claim to the notice of the defendant(s) (2) The originating process may be served by leaving a copy at the persons place of business
Notify the defendant(s) how to respond. with a person who appears to have control or management of the business at the place.
Service under the Common Law
SEPA rule allows for service in and throughout Australia (see UCPR r 123, provided served in Service in relation to a partnership
accordance with s 15 of the SEPA). R 114(1) UCPR
There is also provision for service outside Australia Rules 124-129 UCPR An originating process against a partnership must be served
Two main types or forms of service (a) On 1 or more of the partners; or
Personal service: originating process (most often, a claim) must be served personally on a party (b) On a person at the principal place of business of the partnership in Queensland who appears
against whom a remedy or relief is sought. UCPR, rr 105-106 to have control or management of the business there; or
-You personally hand the defendant the document, (Claim or a Statement of claim)/Rule about (c) For a partnership registered under the Partnership (Limited Liability) Act 1988at the
personal service, restricted to originating process Claims and originating applications registered office of the partnership.
Ordinary service: where personal service is not required, ordinary service will suffice. See (2) If the originating process is served under subrule (1), each of the partners who were
UCPR, R 112. Ordinary service is sufficient for interlocutory procedures. Used for every other partners in the partnership when the originating process was issued, including a partner who
document that is not an originating proceeding was outside Queensland at the time, is taken to have been served.
Service on solicitors:
Personal service
Golden Rule (Never take service on behalf of a client unless you have written consent)
R 106 UCPR -Service is taken to be effected unless client asserts that they never consented to their
-When serving an originating process, the person serving it must give it (or a copy of it) to the representative the onus is on them to prove that no consent was given
person intended to be served.
-Where service is refused, the server may put is down in the persons presence and tell him or R 115 UCPR: Solicitors may accept service for a party
her what it is Then you can walk away Solicitors must have specific instructions
-If a copy is served, there is no need to show the original. The solicitor must make a note on a copy of the document to the effect that the solicitor
- normally, process servers carry our service accepts service for the party.
The document is taken to have been served on the party, unless the party proves the solicitor
Counter Claim did not have authority to accept service for the party.
-Counter claim form 18; you are not obliged to bring a counterclaim This rule applies whether or not personal service of the document is required under these
-A counter claim occurs where the defendant claims injury/COA suffered at the hands of the rules.
plaintiff
Original Docs Personal Service
-Once thats on the record it is easy to serve people counterclaim not just on the plaintiff but on
Others Ordinary Service
another New Originating Process
WHERE YOU CANNOT SERVE PERSONALLY Substituted Service (ABSOLUTELY NECESSARY
Ordinary Service STEP)
Rule 112 UCPR: a variety of means provided such as: R 114 (1) b UCPR
-Leaving it with someone who is apparently an adult living at the relevant address Serve a business by serving a person who appears to have control of the business/If they have a
-If no adult home, leaving it at the relevant address in a position where it is reasonably likely to registered office you can leave it there
come to the persons attention. Substituted Service
-Posting it to the relevant address
Substituted service: Impracticable not merely Difficult
- If to solicitor, to DX, fax or email
R 116 UCPR: If a plaintiff cannot effect prompt personal service s/he may apply for substituted
Rule 122 Fax service
service:
(1) Where impracticable to serve a document the court may order a method of substituted
Service on Specified Persons
service.
R 108 UCPR: Considering Young People you must leave the claim/application with a parent or
(2) The court may specify steps as opposed to service
litigation guardian
(3) The court may, in the order, specify that the document is to be taken to have been served
R 109 UCPR When considering an impaired person service to guardian/person to be
on the happening of a specified event or at the end of a specified time.
appointed as guardian/carer.
(4) The court may make an order under this rule even though the person to be served is not in
R 110 UCPR Considering Prisoners service to the: public tee, lit guardian, person in charge;
Queensland or was not in Queensland when the proceeding started.
such as Warden
Miscamble v. Phillips and Another
R 111 UCPR Ordinary Service is acceptable when considering MAGS court proceedings note
the Court said at p. 274 that the primary object of substituted service is:
exclusions listed in R 111.
to bring to the knowledge of the person in respect of whom substituted service is sought, the
whole proceeding so that he can take steps as he thinks proper to protect his interests and
Corporations are served according to:
rights. It is not proper to substitute service of process...when there is no belief that the service
R 107 UCPR or s 109X (Corporations Act)
will bring the proceedings to the knowledge of a person or of any person representing his
- leaving it at or posting to the registered office; or
interests.
- Personal delivery on a director.
The principles applicable to substituted service were stated in
Service on unregistered business
Porter v. Freudenberg
In order that substituted service may be permitted, it must be clearly shown that the plaintiff is
in fact unable to effect personal service and that the writ is likely to reach the defendant or to
come to his knowledge if the method of substituted service which is asked for by the plaintiff is
adopted.
Two points to note:
The order (for substituted service) should be obtained before resorting to irregular service, but
ratification of the irregular service is possible after the event.
But note that, if a claim may not be served personally, because the defendant is not within the
jurisdiction, then it cannot be served by substituted service (substituted service is not a back
door method of service).
Permanent Mortgages Pty Ltd v McKenna & Anor
Permanent Custodians Ltd v Massey
Australia and New Zealand Banking Group Limited v Woodman
Commonwealth Bank of Australia v Diplock
Commonwealth Bank of Australia v Goudge
Queensland Construction and Engineering P/L v Wagner
Add????
Informal Service
R 117 UCPR Informal service
If
(a) For any reason, a document is not served as required by this chapter but the document or a
copy of it came into the possession of the person to be served; and
(b) The court is satisfied on evidence before it that the DOC came into the possession of the
individual needing to be served by a particular time then this service may be ratified by this
section. (SEE RULES)
SEPA: (Service and Execution of Process Act)
UCPR 123: For service outside Qld but within Aus, service to be in accordance with SEPA
s 13: Division 2 Applies to civil proceedings
s 15: (1) An initiating process issued in a State may be served in another State.
[Note: State is defined to include Territories: s 5]
-There used to be difficulties with service interstate, this has been overcome with this
legislation
-Follow the rules that exist in the place of issue (where the documents were filed)
s15 (2) Service must be effected in the same way as service of such an initiating process in the
place of issue.
(3) Service on a company as per s 9
(4) Service on a Body Corporate as per s 10.
(5) Service on a body politic (eg Cth) must be effected in the same way in which process of the
Supreme Court of the State in which service is to be effected may be served on a body politic.
s 16: need prescribed noticed attached to process served. Regulation 4 - prescribed notice is
Form 1
-Where you need to serve a document interstate, this is the process which must be followed
s 17: time for appearance - longer of 21 days or time allowed by issuing court (ie 28 days)
Service outside Australia:
-If served with a claim you have 28 days to respond to this, (Think 28 Days)
See r 124 (1)(g)-(i) for cases involving contracts. Service out of the jurisdiction may occur in
respect of a contract made within the jurisdiction, or breached within the jurisdiction
irrespective of where the contract is made; and a claim for a contribution or indemnity for a
liability arising in either of the aforementioned circumstances.
-Rule 124 deals with serving someone who is outside of Australia, starts at 123 and goes
through to 129 (All dealing with Service outside of Australia)
See r 124 (1)(k) relating to torts committed within the jurisdiction.
Proving service UCPR R 120 affidavit of service
Made by person effecting personal service and must include full name, time, day
and date document served, place of service, name of person served and how
identified or
Relevant facts & dates showing service, can be made on information given to & or
belief of server & must state source of the information
Have document served as an exhibit
Mention document sufficient
Note UCPR R 111 personal service in MC proceedings can be ordinary service under r112 but
only on an adult living at address or solicitor but can be posted if person lives more than 50 kms
from nearest court
Note UCPR R 101 cant serve on Good Friday or Christmas Day unless court order
UCPR R 103 service on a person after 4.00 pm taken to have been served the next day
Service on the State see Crown Proceedings Act 1980 (Qld)
Service on the Commonwealth see Judiciary Act 1903
(Cth)
STEP 1 Parties
1. Identifying Parties
Consider: Which Identities are established, full legal capacity to sue and be sued, companies but
more than likely 2 people.
UCPR 62 Necessary parties (1) Each person whose presence is necessary to enable the court to
adjudicate effectually and completely on all matters in dispute in a proceeding must be included
as a party to the proceeding.
(2) The court may order a person to be included as a party whose presence as a party is
necessary to enable the court to adjudicate effectually and completely on all issues raised in the
proceeding.
(3) A person who is required under this rule to be included as a plaintiff or applicant and does
not consent to be included in this way may be included as a defendant or respondent.
(4) The court may dispense with a requirement under this rule for a person to be included as a
party.
See UCPR R 63 if P or applicant seeks relief to which another person is jointly entitled to the
relief, that person(s) must be a party to the proceeding
See UCPR R 64 joint or several liability
(1) If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly
with another person and also liable severally, the other person need not be made a defendant
or respondent to the proceeding.
(2) If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant
seeks relief in relation to the contract against some but not all of the persons, the court may
stay the proceeding until the other persons liable under the contract are included as defendants
or respondents.
2. Multiple Parties
Sometimes there are multiple parties to a cause of action all of whom must be joined to the
action
-Basic Rule: All parties may join in a proceeding as either plaintiffs or defendants for the final
resolution of a dispute
R 65 UCPR
(1) 2 or more persons may be plaintiffs or defendants or applicants or respondents
IF
(a) Separate proceedings were brought by or against each of them and a common question of
law or fact could potentially arise in all the proceedings;
Or IF
(b) All rights to relief sought in the proceeding arise out of the same transaction or event or
series of transactions or events.
R 66 UCPR
It is not necessary for every respondent/plaintiff to be interested jointly in every detail of the
proceedings.
Smith v Foley R. 84 UCPR
-The defendant was discharged from a partnership and slandered the firm
-Smith & The Firm joined in one proceeding multiple causes of action however this was a
misjoinder because there was no common question of fact or law.
R 65(2) UCPR:
-Allows a plaintiff to sue all potentially liable parties where there is doubt as to who is the
responsible party
-Innocent parties will be protected in costs which will be borne by the responsible party.
Smyth v McLeod
-Plaintiff was an injured passenger in a MV accident and sued 4 Defendants but was only
successful w.r.t. two of them.
-Only purpose for joining was because the other parties would not admit responsibility and as a
result they were ordered to pay the costs of D3/D4 (the innocent defendants) on the Std basis.
UCPR 66 Identical interest in relief unnecessary It is not necessary for every defendant or
respondent to be interested in all the relief sought or in every cause of action included in a
proceeding.
Payne v Young each party claimed a right to relief in respect of or arising out of the same
transaction. Seen to be separate.
UCPR 67 Parties incorrectly included or not included Despite rules 62 and 63, the court may
decide a proceeding even if a person is incorrectly included or not included as a party and may
deal with the proceeding as it affects the rights of the parties before it.
Substituting/Removing a party
UCPR 69 Including, substituting or removing party (1) The court may at any stage of a
proceeding order that:
(a) a person who has been improperly or unnecessarily included as a party, or who has ceased
to be an appropriate or necessary party, be removed from the proceeding; or (b) any of the
following persons be included as a party: (i) a person whose presence before the court is
necessary to enable the court to adjudicate effectually and completely on all matters in dispute
in the proceeding; (ii) a person whose presence before the court would be desirable, just and
convenient to enable the court to adjudicate effectually and completely on all matters in
dispute connected with the proceeding.
Note UCPR R 69(2) cannot include or substitute parties after the end of the limitation period
unless the new party is a necessary party under R69(2) (a) (f)
See UCPR R 69(3) if an order made substituting or including a party, court can make directions
as to future conduct of proceedings
UCPR R 70 procedure where person applies to be included as a party affidavit setting out
interest
UCPR 71, 72 - dealing with what happens if party is dead or dies
UCPR 74 Amendment of proceedings after change of party (1) If an order is made changing or
affecting the identity or designation of a party, the plaintiff or applicant must:
- (a) file an amended copy of originating process within 10 days, unless time specified
Companies:
-Separate legal entity which must sue or be sued in its own name.
- Action against co. in admin cannot be started or continued w/o consent/ leave of court: S
440D Corps Act
-Once Proceeding to wind up a Co has commenced no action shall be brought by or against it
w/o leave of the court: S 471B Corps Act
Partnerships:
R. 82 UCPR
A partnership proceeding is started by or against a partnership in the partnership name and
includes a proceeding between a partnership and 1 or more of its partners.
R. 83 UCPR
(1) Two or more partners may start a proceeding in the partnership name.
(2) A proceeding against persons alleged to be partners may be brought against the alleged
partnership in the partnership name.
(1) At any stage of a partnership proceeding, a party may by written notice require the
partnership to give the names and places of residence of the persons who were partners in the
partnership when the cause of action arose.
R. 85 UCPR Indiv. Partners file NITD in own names.
R. 88 UCPR enforcement against individual partners
Businesses:
R.89 UCPR A proceeding may be started against a name registered under the Business Names
Act 1962.
R. 90 UCPR
If a proceeding is brought against a person in relation to a business that they carry on but the
name is not registered under the BNA
(a) The proceeding may be started against the person in the name or style under which the
person carries on business; and
(b) The name or style under which the business is carried on is sufficient designation of the
person in a document filed in the proceeding; and
(c) An order in the proceeding may be enforced against the person.
R. 91(2) UCPR.
(3) A person who files a notice of intention to defend must file and serve a statement of the
names and places of residence of all persons who were carrying on business under the name or
style
In essence piercing the Corporate Veil
Legal Incapacity
R 93 UCPR A person under a legal incapacity may start or defend a proceeding only by the
persons litigation guardian.
R 95 (1) UCPR An LG is either appointed by court, or self-appointed by filing consent. Can be
removed by court
R 96 UCPR:
If a defendant is under a legal incapacity and doesnt file a NITD within the time limited, the
plaintiff may not continue the proceeding unless a person is made litigation guardian of the
defendant.
R 99 UCPR:
If a prisoner is incapable of bringing or defending a proceeding without the public trustees
consent the public trustees consent must be written on the front, or attached on a separate
sheet at the back, of the originating process or notice of intention to defend.
Representative Proceedings
R 75 UCPR: A proceeding may be started/continued by or against:
-1 or more persons who have the same interest in the subject matter of the proceeding as
representing all of the persons
-Who have the same interest and could have been parties in the proceeding.
The following conditions regarding unity of interest must be fulfilled:
There must be a common interest
There must be a common grievance, and
The relief sought must be beneficial to all parties represented by the representative
party.
Carnie and another v Esanda Finance Corporation Limited
-Representative Actions = Broader Interpretation
-Same interest/Significant question common to all members of the class
STEP 2 CAUSES OF ACTION
Port of Melbourne Authority v Anshun Pty Ltd
Multiple Causes of Action
N.B: All causes of action may be joined against another party if there is a common Q of The Court of Appeal found that it was not unreasonable for the employee to have deferred the
law/fact, Rights to relief arise from the same transaction or the court gives leave. new claims.
Failure to join a party
R 60 UCPR: permits a plaintiff or applicant, whether seeking relief in the same or different Rippon v Chilcotin Pty Ltd
capacities, to include in the same proceeding as many causes of action as the plaintiff has -Business purchases sued for breach of warranty in relation to the 1991 financial statements
against a defendant or the applicant has against a respondent. annexed to the contract of sale.
-They also alleged that the financial statements were a misrepresentation contrary to s 52 TPA.
But only if at least one of the following conditions is satisfied -The purchasers succeeded on their breach of contract claim. The s 52 claim was dismissed.
1. The causes of action involve a common question of law or fact, OR The court found that the purchasers had relied on the warranty, not the accuracy of the info
2. arise out of the same transaction/event or series of transactions/events, OR contained in the 1991 financial statement.
3. The court gives leave (either before or after commencement of proceedings). -The purchasers then sued the accountants who had prepared the 1991 financial statements.
R 68 UCPR: Where including Parties/COA delays the trial or prejudices another party or is Court of Appeal applied Anshun estoppel.
inconvenient, the court may: -Double attempt at litigation
(a) Order separate trials; or Rules Summarised, Check before moving on
(b) Award costs to a party for attending, or relieve a party from attending, a part of a trial in Multiple plaintiffs: rule 65 (1)
which the party has no interest; or Multiple defendants: rr 65 (1) & (2), r 66
(c) stay the proceeding against a defendant or respondent until the trial between the other Multiple actions: r 60
parties is decided, on condition that the defendant or respondent against whom the proceeding Representative proceedings: rr 75-77
is stayed is bound by the findings of fact in the trial against the other defendant; or Consolidation of proceedings: rr 78 - 81
(d) Make another order appropriate in the circumstances.
Interlocutory injunction: [Form 9]
ESTOPPEL -Assumes proceedings have been commenced
Unless you as the plaintiff join claims at a relevant and efficient time you may be prevented Other important provisions
from doing so at a later date. -Oral applications (a temporary measure): Rule 12,
Cause of action/litigation estoppel precludes the re-litigation of claims made in earlier Proceedings may be started by oral application if:
proceedings between the same parties in respect of the same subject matter. Urgent relief is sought
Practitioner undertakes to file an application within the time directed by the court, and
Henderson v Henderson The court considers it appropriate.
The Court requires the parties to litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the same subject of If you get it wrong and proceedings are incorrectly started
litigation RR 13-14: If the court considers proceedings started by claim/application should have been
-Deal with everything from the outset to avoid the possibility of estoppel started by application/claim
Failure to Join a Cause of Action
The court may order that the proceedings continue as if started correctly, even though they
Port of Melbourne Authority v Anshun Pty Ltd (No 2)
werent for the purposes of efficiency
Proceedings were brought against Defs: Anshun + Authority
The Court wont dismiss what youve already started
-In first proceedings, defendants sought contribution from each other. Order for 90/10%
appointment of damages (in Anshuns favour)
STEP - PLEADINGS
Defendants Perspective & Pleadings
Port of Melb. Authority v Anshun
PLEADINGS
Attempted second proceeding: The Authority pursued a 2nd round of litigation claiming
Definition See Supreme Court Act 1995 (Qld) s241 - pleading includes any petition or
damages in relation to a crane hire agreement which wasnt broached at initial trial.
summons and includes the statements in writing of the claim or demand of any plaintiff and
Held: the claim for indemnity ought to have been pursued in the original proceedings.
of the defence of any defendant thereto and of the answer of the plaintiff to any set-off or
It was unreasonable for the Authority to refrain from raising its case of indemnity for disposition
counterclaim of a defendant.
in the first action.
Purpose:
Cause of action (Anshun) estoppel
- contain the material facts that the parties intend to rely on and prove
Relevance in present context: failure to join a claim in a proceeding may preclude the pursuit of
- informs the parties of issues in dispute
such claim/issue in a later proceeding against the same party or parties.
- Informs the court about the dispute
- Prevents trial by ambush
Whether a party will be prevented from litigating an issue which would have been more
- Banque Commercial SA v Akhil Holdings
appropriately included in earlier litigation discretionary decision for the court
Pleading a case
Gibbs v Kinna Claim incorporating Statement of Claim R 22(2) (b) served by Pl on Def.
-Employee received compensation for wrongful termination from the Industrial Relations Notice of Intention to Defend incorporating Defence R 139(1) (b) served by Def on Pl
Commission. Reply R 164(2), served by Pl on Def.
-Employee then sued his former employer in the Mag Court for damages for breach of contract NATURE OF PLEADINGS
Pleadings are documents exchanged by the parties which set out the material facts
of employment and for violations of the TPA and Fair Trading Acts. Claim dismissed.
-Several appeals later, the Court of Appeal held the test was whether it was reasonable to defer alleged/intended to prove at the hearing of the action. Form through which case is stated
reliance upon a cause of action or defence. If it was reasonable, then the Anshun principle Banque Commerciale SA (Enliq) v Akhil Holdings Ltd
would not shut out a partys subsequent reliance on that cause of action or defence. Courts have tended to favour merits over procedure when considering amendments -
Queensland v JL Holdings P/L
Consider
Rigato Farms Pty Ltd v Ridolfi: (c) if not specifically pleaded might take the opposite parties by surprise; or
de Jersey, CJ: Parties do not have an inalienable right to a hearing of all issues on the merits (d) raises a question of fact not arising out of a previous pleading.
Aon Risk Management: Must manage justice and efficiency Allianz Australia Ltd v Newcastle Formwork Pty Ltd - purpose of particulars it to assist in
FORM defining the issues at trial, informing the other party the case being presented R 168 UCPR facts in last pleading before closure of pleadings deemed subject of non-admission.
R 146 UCPR Bloeman v Atkinson - P had to supply further particulars when claiming entitlement to a trust R 167 UCPR unreasonable denial / non-admission penalised in costs
A pleading must: fund R 171UCPR Court may strike out pleadings if:
(f) Be divided into consecutively numbered paragraphs/subparagraphs; each containing, as far Discloses no reasonable cause of action/defence
as practicable, a separate allegation. R 150 UCPR Include anything which must be specifically pleaded Tendency to prejudice/delay fair trial
Unnecessary or scandalous
CONTENT
1) Particulars of negligence (must be specifically pleaded) Frivolous or vexatious
R 149(1) UCPR Each pleading must be: 2) Particulars of damage + interest (must be specifically pleaded). Abuse of court process
-Defendant should not attempt to anticipate the defence of the defendant merely establish the Only need the information required to establish your COA
(a) Brief Elements A note on pleading c/claims
(b) Material facts, not evidence: Statement of fact not evidence of matters occurring -Comply with procedural requirements: Jurisdiction, Procedure, Time Limits R 179 UCPR A counterclaim must be in the approved form and must be included in the same
(c) Warn of matters of surprise: Cannot surprise the defendant (warn of surprises), cannot
document and served within the same time as the defence.
spring anything on you at trial -Hearings are held to determine legal arguments brought w.r.t the interlocutory applications. Defendant generally follows the same pleading requirements as for a statement of claim must
(d) Specify relief: X dollars for personal injury, breach of contract ect -Affidavit evidence brought is rebutted through affidavit of the respondent reveal a cause of action by pleading necessary material facts.
(e) Identify statutory provisions founding claim or defence: Plead everything Defence must deal/Answer every allegation made Except: no need for repetition: And by way of counterclaim the defendant says as follows:
R 165 UCPR Choices outlined 1) The defendant repeats and relies on the matters set out in paragraphs 1, 2, 3 and 6 of his
R 149(2) UCPR
Deny it (Onus of the other party to prove the allegation). defence. Then allege additional facts relied on.
May plead a conclusion of law or raise a point of law - if also plead material facts in support.
Non-admit it (operates in the same way as a denial. Used where allegation being NITD Notice of Intention to Defend
responded to is outside the knowledge of the defendant).
Affidavits have no place when it comes to claim and statement of claim -The claim tells the defendant(s) the time within which the NITD is to be filed.
Admit, or
Counterclaim for loss of profits, where complaining and injury resulted in a 2 hour hold up -If claim served within Qld, NITD must be filed within 28 days of service of Claim: r 137(1) UCPR
Plead another matter -If served outside Queensland but within Australia, SEPA s 17, default 28 Days
Matters to be specifically pleaded
Raise a point of law; -See Rules 124-129 UCPR for process served outside Aust.
R 150 UCPR Make an inconsistent alternative plea eg deny the making of a contract alleged by the pl,
Without limiting rule 149, the following matters must be specifically pleaded a long list follows, and also allege that if there is a contract it is unenforceable because of the absence of R 139 UCPR provides the NITD must:
includes: writing (sale of land), or -be in the approved form; and
Breach of contract or trust Proceed to counterclaim eg for breach of contract. -have the defendant's defence attached to it.
Every type of damage claimed including, but not limited to, special and exemplary damages R 166(1) UCPR provides that a fact is deemed admitted unless it is denied or not-admitted or
Fraud there is a deemed denial R 139(1) (b) Same as with a claim and SOC, a NITD includes a Defence: Must be signed and
Illegality R 168 UCPR dates
Interest (including the rate of interest and method of calculation) claimed Default rule, deemed to be admitted where not admitted or denied Important not to miss this
COUNTERCLAIMS
UCPR 155 damages must state nature and amount of damages Other points to note: UCPR r 176 185 counterclaims: D can make a CC against P rather than bringing a separate
If the claim is for general damages then must state nature of loss or damage, circumstances in R 165(2), if plead by non-admission, you may not call / give evidence on that fact. action
which loss suffered R 166(3) can only plead non-admission after reasonable investigation + remain uncertain over R178 D can CC against person other than P if P a party to the CC and D alleges other person
Basis on which amount claimed has been worked out truth. liable with P or D claims against the other person relief relating to or connected with the
Also plead each type of general damage and amount R 166(4) a denial or non-admission must be accompanied by a direct explanation for the partys original subject matter of the proceeding
Plead anything relating to assessment of damages so as not to take a party by surprise belief - if not supplied,
Liquidated and unliquidated damages R 166(5) deems allegation to have been admitted. UCPR r 179 CC must be included in and served within the same time as the defence
A Reply Plaintiff replies to Ds defence and answers Ds CC see UCPR r 164 reply to be filed and
UCPR r 157 pleading must contain particulars necessary to define issues for trial and prevent served within 14 days after the day of service of defence
A reply (to a defence or answer)
surprise, enable opposite party to plead and support a matter specifically pleaded under R 150 Answer to CC to be filed and served within 14 days after the day the CC served or if D to CC not
R 168 UCPR If the plaintiff disputes allegations in the defence, the plaintiff must serve a reply,
UCPR r 158 need to particularise loss and damage a party within 28 days after day of service of CC
otherwise there is an implied non-admission of the defence allegations
UCPR r 159 claim for interest plead amount on which interest claimed, interest rate, when If P files answer to CC, D can reply to Ps answer within 14 days after day of service of answer to
interest claimed from, method of calculation CC
R 165 UCPR Then, the plaintiff cannot give or call evidence in relation to the allegations in the
Pleadings sufficient particulars must be given. defence (unless the evidence is relevant to another part of the plaintiffs pleadings). UCPR r 169 close of pleadings if pleading served after defence or answer to CC, on service of
R 160(1) UCPR unless inconvenient: Particulars should be provided in pleadings pleading otherwise 14 days after service of defence
R 160(2) UCPR If not, ask your opponent for further particulars through correspondence Other points to note:
If the plaintiff needs to allege further facts to rebut a defence, this is where it is done (not in the UCPR r 180 answer to CC
Particulars: Specific description of what is contained within the statement of claim, evidence is original statement of claim). If no answer may be a default judgment
the receipts, and allegation is what is in the statement of claim. Note UCPR r 184 if D succeeds on CC against P and there is a balance in favour of 1 of the
R 154 UCPR You can only use a reply to meet the defence; it cannot be used to raise a new parties, court may give judgment for the balance
R 161 UCPR for further and better particulars cause of action NITD - details
-Need to ask parties for further and better particulars The defendants address for service and that of the defendants solicitor must be given. If
-If they refuse get a court order under this rule Pleading specifics necessary an additional address for service within 30 kilometres of the registry must be
-Form 9 Interloc App w Affidavit R 150(4) requires that: provided: RULES 139-140 and 17
R 162 UCPR if particulars will prejudice, delay, etc application to Court to strike out particulars A party must specifically plead a matter that: Must give address, solicitors address and an office within 30km from the courts that would
can be made (a) The party alleges makes a claim or defence of the opposite party not maintainable; or accept documents
UCPR r 163 if no compliance with r161 court can make orders, including judgment (b) Shows a transaction is void or voidable; or Otherwise must appoint town agents to act on your behalf
 If practising anywhere regional you may require a town agent
Applies to the plaintiff and the defendant (address within 30 km of the registry)
Town agents can appear on your behalf in the event that proceedings are called to a head
quickly
Conditional NITD
Provides a method of approaching the court while preserving rights.
A conditional NITD protects the defendant from a default judgment but preserves the right to
take any objection based on lack of jurisdiction and other irregularity.
Note: the defendant is bound by the courts decision if it determines it has jurisdiction.
Note: the court has discretion to waive irregularities in service.
Unconditional NITD
Entering an unconditional NITD has the effect of waiving any irregularity in the claim.
Further, the plaintiff does not need to prove service, so any irregularity in service is waived
(eg it makes good the service of a stale claim which has not been renewed).
It amounts to a submission to the jurisdiction of the Court.
NITD Defendant taken to be served by the Plaintiff
R 141UCPR: The NITD is filed in the registry out of which the originating process issued, in
duplicate (or to be safe, triplicate) and a sealed copy given back to the defendant. The sealed
copy must be served on the plaintiff on the same day or as soon as practicable after it is filed R
142 UCPR at the plaintiffs address for service (Here ordinary service is accepted)
-If proceedings have been issued out of Brisbane, then the defendant must file their NITD in the
same court from which proceedings were initiated.
Who may file/serve NITD?
Individuals:
Only a defendant may enter an appearance, either in person or through a solicitor + any
person allowed by special leave of the judge
Exceptions where infants or others under a disability, allowing guardian or similar person to file:
rr 93, 96, 136 UCPR
Corporations: a corporation enters a NITD through its solicitors, unless it obtains leave of the
court: RR 135, 136.
Partnerships R 85 UCPR: when a partnership is sued in the firm name, a partner must appear
individually in her/his own name,
Third parties: required to file NITD (r 197) as are persons added or substituted as defendants (r
207. 135).
Do not file a NITD without instructions, because it may be vacated.
No NITD
If fail to file in time, then plaintiff may seek default judgment; but
You can still file unless and until default judgment is obtained (so a slack plaintiff may give
the defendant more time).
(As a defendant you have 28 days and whatever time before plaintiff takes it ahead to
achieve a default judgment
Withdrawing a NITD
A NITD can be withdrawn, but only with leave of the court or the consent of the other
parties R 306
After withdrawal of NITD, the proceedings continue as if there had never been an
appearance. The defendant is at risk of default judgment.
Insert: Time limits, form Numbers, Modes of Service, conditional attributes
-Once each has performed personal service ordinary service is acceptable.
-A defence is simply a defence, separate to a counterclaim. Form 17 (DEFENCE)
-A counterclaim: The plaintiff harmed themselves but also harmed me. Form 18 (DEFENCE +
COUNTER CLAIM)
-Answer is the defence to the counterclaim
-When a defendant responds they will set out admission of certain things and denial of other
things.
-Turn form for reply into reply and answer
-Baker can institute 3rd party proceedings where the Baker has been sued for breach of
contract in relation to merchantable quality.
-TPN: Third Party Notice (Flour Maker)
-Someone not already a party to proceedings
-Ordinary service..
-14 days to respond
-Z has 28 days to answer
-Overlay between X and Z is treated as a separate cause of Action
Third Party Notice (R 191-207)
Distinguish Third Party Notice
A TPN is a procedural device whereby a defendant can join in the action any person against
whom the defendant claims relief related to the plaintiffs claim.
A defendant may incur a liability to the plaintiff because of the default or misfeasance of
another person, who the plaintiff has not sued. In relation to the counterclaim, the plaintiff can
institute third party notice.
(This counterclaim will render it a separate claim and thus the plaintiff is the defendant)
Use Third Party Notice when..
Use TPN where def. claims against the third party a contribution or indemnity, relief or remedy
connected with original action, or necessary to join TP to answer any Q relating to original
subject matter see rule 192
Like the c/claim, another device to allow all issues between all parties to be thrashed out in the
same proceedings.
(IF I AM LIABLE THEN YOU ARE LIABLE AS WELL AND WE ARE BOTH IN THIS TOGETHER)
Third Party Notice
Defendant and TP relationship = Plaintiff & Defendant
UCPR r190 - D files a TP notice when D is seeking contribution or indemnity, a claim for
relief/remedy from non party to original proceedings but relief/remedy connected to original
proceedings and relief/remedy substantially the same as some relief claimed by P, requires
question or issue related/connected with original subject matter of the proceeding to be
decided not only between P and D but also between either of them and non party
UCPR r 193 D issues TP notice, states nature of claim and attaches a S of C
UCPR r194 cant file TP notice until D filed defence and is filed 28 days after defence filed or P
agrees to extended time
UCPR r 195 to be served as soon as practicable after filing and in same way originating process
is served on a D
UCPR r 196 TP becomes party to proceeding
UCPR r 197 D becomes P to TP claim and TP becomes D. Has to file NITD.
UCPR rr 198 199 - TP files a defence and if TP files a pleading must serve pleading on all
parties
R 200 UCPR
A third party may counterclaim against the defendant
NB: A third party may join a fourth party, an so on.
This process continues
INTERLOCUTORY APPLICATIONS
UCPR 31
Application to be signed, filed and in the approved form.
Respondent to be any party whose interests might be affected by the granting of
the relief sought
If made by non party must comply with R 17
Filed & served on each respondent at least 2 business days before the date set for
the hearing
Note service day & hearing day excluded in time calculation under Acts
Interpretation Act
Dispositive judgments Default judgments
See UCPR Rr 281 290
If D does not file a NITD and the time under R 137 has elapsed, P can apply for a default
judgment against D
R 282 P has to prove service
R 283 default judgment for a debt or liquidated demand P can file request for judgment for
no more than amount of claim plus interest and certain costs
R 283 (4) Court as constituted by Registrar gives judgment
Form 25 Request for Judgment & Form 26 Draft Order
Proof of debt need to file affidavit see Rr 969 & 970
R 284 default judgment for unliquidated damages request for judgment filed conditional on
assessment of damages
Registrar can assess damages or done by court R 507
R 285 default judgment for detention of goods request for judgment for return of goods or
value of goods conditional on assessment
R 286 recovery of possession of land also costs
R 287 mixed claims P entitled to judgment on any or all claims
R 289 If D satisfies Ps claim, P only entitled to costs
Claim for interest see s 47 SCA 1995 from cause of action to date of judgment
See PD 6 of 2007 amount = 10%
Under R 283 can also abandon the interest claim, claim an agreed rate accept a rate not higher
than specified in the PD, or argue for a higher rate
Can claim costs for issuing the claim, costs for obtaining judgment and any other fees or
payments as long as paid and reasonably incurred
R 290 Setting aside judgment by default and enforcement - The court may set aside or amend
a judgment by default under this division, and any enforcement of it, on terms, including terms
about costs and the giving of security, the court considers appropriate.
D makes application and supports with affidavit(s)
D must show the court:
He/she has satisfactory explanation for delay
No unreasonable delay in making the application
Prima facie case on the merits
No prejudice to P
Court has a discretion - may set aside
Aboyne Pty Ltd v Dixon Homes Pty Ltd
National Mutual Life Association of Australasia v Oasis Developments Pty Ltd
National Australia Bank Ltd v Singh
SUMMARY JUDGMENTneed more info here!!
No arguable issues of law or fact - -ie no triable issue
Courts reluctant to make orders as no testing of case in a hearing where parties have the
opportunity to present their evidence to prove their case(s)
Summary judgment is a final judgment compare with default judgment which on application
of D, can be set aside but note can be set aside if order made in absence of the respondent
Application and supporting affidavits which set out the basis for making an order
R 292 P can apply for a judgment against D at any time after D has filed a NITD if the court is
satisfied that D has no real prospect of successfully defending the claim and there is no need for
a trial
Judgment can be given for all or part of Ps claim
Make any other orders that are appropriate
R 293 D can apply for judgment at any time after NITD filed for judgment against P and court
can order judgment for D if P has no real prospect of succeeding on all or part of Ps claim and
no need for trial
Make any other orders that are appropriate
R 294 if all claims not disposed of court can continue to hear those claims
Second or later application to be made with the courts leave
Martyn v Graham
Deputy Commissioner of Taxation v Salcedo
Emmaland Pty Ltd v Sunstate Refrigeration Pty Ltd
Application to strike out pleadings see UCPR r 171
(1) This rule applies if a pleading or part of a pleading
(a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or
delay the fair trial of the proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or
vexatious; or (e) is otherwise an abuse of the process of the court. (2) The court, at any stage of
the proceeding, may strike out all or part of the pleading and order the costs of the application
to be paid by a party calculated on the indemnity basis.
(3) On the hearing of an application under subrule (2), the court is not limited to receiving
evidence about the pleading.
UCPR 280 Court may order judgment where plaintiff or applicant does not comply with the
rules
Amending pleadings:
General power to amend under R375 court can allow or direct a party to amend a claim,
anything written on a claim, a pleading, an application or any other document
The court can also give leave to make an amendment even though the effect may be to add a
new cause of action after proceedings started
Misnomers court must allow amendment to correct it
R 375 is subject to R 376
R 376 if application made to amend under R 375 after the limitation period has expired
Sub rule (2) amending the name of a party can only be done if the court considers it
appropriate and the mistake being corrected is genuine and not misleading or likely to cause
reasonable doubt as to the identity of the person intending to sue or be sued
Sub rule (3) Leave to amend changing capacity in which a party sues can only be done if court
considers it appropriate and the changed capacity is one which at the date the proceeding
started was one party might have sued in
R 376 sub r (3) adding a new cause of action only if appropriate AND new cause of action
arises out of the same facts or substantially the same facts
R 377 amending originating process cannot be amended unless
(a) if a technical matter with leave of Registrar or court
(b) If not served and all sealed copies returned to the court, with leave of the Registrar or court
Note this rule does not apply to a particular or pleading contained in the originating process
R 378 any time before filing of request for trial date, party can amend if leave of court not
required
R 379 if a party makes an amendment without leave before filing of request for trial date,
another party can, within 8 days of service of the amendment, apply to disallow it
R 380 need leave to amend after request for trial date filed
R 381 if party does not make amendment in time specified in the order or if no time specified
within 14 days of making the order, order of no effect
Procedural requirements see UCPRs rr 382 384
Consequences of making amendments see UCPRs rr 385 387
UCPR 389A if more than one application made and seen as frivolous, court can strike it out
APPLICATIONS FOR INTERIM RELIEF
Often made ex parte and can seek injunctive relief
UCPR r 250 court has the power to make order for the inspection, detention, custody or
preservation of property if the property is the subject of the proceeding or a question may arise
in the proceeding about the property or inspection is necessary to decide an issue in the
proceeding
See Acts Interpretation Act 1936 for a definition of property legal or equitable interest in real
or personal property, including money
property does not have to be in a partys possession
court can order a person to enter a place to take property, take samples, photos, etc
UCPR r 251 court can order sale or disposal of perishable property
UCPR r 251 order can be made on someone not a party to the proceeding
UCPR r 253 need to ascertain who has an interest in the property and each party with the
interest served with the application and affidavits
Urgent orders can be made before the proceeding starts under UCPR r 254
Some important points to note:
Party applying for injunctive relief must show:
1. There is a serious question to be tried ie if the evidence is maintained P will
succeed at trial
2. The balance of convenience what inconvenience/injury will P suffer if injunction
not granted vs inconvenience/injury d will suffer if injunction granted
3. Award of damages is not an appropriate remedy
Castlemaine Tooheys Ltd v South Australia
Beecham Group Ltd v Bristol Laboratories Pty Ltd
Patrick Stevedores Operations No 2 v Maritime Union of Australia
Interlocutory injunctions can be interim or final
Interim usually made ex parte, other party then served and given a right be heard
Made when there is an urgency
UCPR r 259 application should be served but if the court is satisfied there is adequate reason
for doing so order can be granted without notice to other party
UCPR r 259 (2) court may, with or without conditions, grant the order for a limited period,
grant the order until trial, grant the order for a limited period restraining a person from leaving
Australia or make another order
Interlocutory injunctions see UCPR r 256 not available in MC proceedings
Interlocutory injunctions under the UCPRs see Rr 260A & 261A
UCPR r 260A freezing order can be made to prevent the frustration or inhibition of the R 448 court hearing
courts process to meet a danger that a judgment will be wholly or partly unsatisfied
Freezing order can restrain a respondent from removing assets within or outside Australia, or
from disposing of, dealing with or diminishing the value of those assets
Commonly known as a Mareeva order
Note: disclosure may be subject to privilege
UCPR r 260B court can make ancillary orders as appropriate including obtaining in formation
about assets and in deciding whether to make the order
UCPR r 260C respondent does not need to be a party to the proceeding for order to be made
UCPR r 260 D court can make a freezing order against a judgment debtor or prospective
judgment debtor if the court is satisfied that that person may abscond or remove assets out of
Australia or dispose of assets which in turn will result in a judgment for the applicant being
wholly or partly unsatisfied
UCPR r 260F application for a freezing order can be served outside Australia if assets within
the jurisdiction
UCPR r 260 G costs orders can be made
NOTE the court will usually require the applicant to give an undertaking as to payment of
damages
Search Orders Anton Pillar orders remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of).
UCPR r 261A search order can be made in a proceeding or in anticipation of a proceeding to
secure or preserve evidence and requiring a person to enter premises to secure the
preservation of evidence which is relevant to an issue in the proceeding or anticipated
proceeding
UCPR r 261 B court has to be satisfied that applicant has strong prima facie case, potential or
actual loss to applicant will be serious if order not made and there is sufficient evidence that
respondent possesses important evidentiary material and real possibility that respondent will
destroy material or cause it to be unavailable
UCPR r 261D terms of the order
UCPR r 261 E appointment of independent solicitors to supervise enforcement of the order
UCPR r 261F costs orders
Applicant must agree to be responsible for any damage respondent might suffer as a result of
order for injunction if applicant does not succeed at trial
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd
UCPR r 264 usual undertaking as to dam ages an undertaking to pay a person (whether or
not a party to the proceeding) who is affected by the order the amount they may sustain
because of the order
Court must not grant order for freezing/search order without undertaking being given unless
there is a good reason not to require the undertaking
UCPR r 265 court may order person making undertaking as to payment of damages to pay
money to court or give other security
Court to decide whether to make order based on grounds of reasonableness
UCPR r 263 where application made for freezing/search order can order expedited trial under
r 468
LETTERS
R 443 applies to - applications for further and better particulars, directions, failure to comply
with rules or an order/direction
R 444 before making an application under R 443, applicant must write to respondent
specifying complaint, relevant facts, relief sought, why relief and time for respondent to reply
(at least 3 business days after date of letter) and that letter written under Ch11, Part 8, R 444
R 445 respondent required to write to the applicant specifying the reply is to applicants letter
under r445, the respondents response and if applicable, why the applicant is not entitled to the
relief sought
No need to comply with RR 444, 445 if it would cause applicant (444) or respondent (445)
undue delay, expense or inconvenience
R 447 can only apply to court after applicant receives respondents response or time for reply
passed
Documents to be filed with the application letter and response (if any), other relevant
correspondence, list of affidavits
DISCLOSURE
Definition:
Discovery/disclosure exchange of information and documentation between parties
Can also include non parties
Purpose:
Parties aware of the cases to meet at trial
No surprises
More defining of issues
Obtain information which might help a party from the other party
R 209 UCPR applies to proceeding started by claim
Ordered to be continued as claim if court directs, started by application
R 210 UCPR disclosure is the delivery or production of documents in accordance with this part.
Duty to Disclose Documents
R 211(1) UCPR parties to proceedings have the duty to disclose to other parties documents in
possession or under control of first party directly relevant to allegation in issue (an allegation
Duty continues until the proceeding is decided.
Exceptions to Disclosure Duty
R 212 (1) UCPR The duty of disclosure does not apply to the following documents:
(a) A document in relation to which there is a valid claim to privilege from disclosure;
(b) A document relevant only to credit;
(c) An additional copy of a document already disclosed, if it is reasonable to suppose it contains
no change/difference likely to affect the outcome of the proceeding.
(2) Expert reports NOT privileged
How to Disclose
Further pleadings (NITD, defence, maybe c/claim & answer, reply): define the
issues
Discovery (of facts and documents)
Interlocutory applications (eg for an order for F&B particulars, for discovery)
Set the matter down for trial.
R 214(1) UCPR
Delivering a list of the documents to which the duty relates and also those for
which privilege is claimed, and The other party discloses the relevant documents
that they want to see.
As requested, delivering copies of the documents listed (except privileged ones).
R 215 UCPR Party may require production of the originals for inspection. R 226(1) UCPR Solicitor must give court at trial signed certificate UCPR r 211 - In Qld under UCPRs a party must disclose a document(s) that is directly relevant
R 216 UCPR if inconvenient to deliver/produce (as required under r (214/215), disclosure can be a) Stating duty of disclosure has been fully explained to client and to an allegation in issue on the pleadings
effected by producing for inspection and notifying in writing convenient time and place for b) If party is corporation, identifying individual to whom duty explained - The fact proved by the document(s) must prove the existence or non existence of the fact
inspection (2) Certificate must be prepared and signed at or immediately before trial. alleged in the pleadings
-High obligation must produce certificate corporate veil pierced. Robson v Reb Engineering Pty Ltd order sought for discovery of wage records and time sheets
R 217 UCPR to ascertain other employees who witnessed P trip over pile of rubbish Demack J: directly
Where documents are disclosed by producing them, Get around the trick of having everything R 239 public interest considerations rule of law authorising or requiring the withholding of a relevant means something which tends to prove or disprove an allegation in issue.
organised matter on ground that disclosure would be injurious to public interest not affected Rooskov v Laconholme Pty Ltd
Documents must be contained together and arranged and identified - accessible and convenient R 240 Service on solicitors of an order for delivery, production or inspection of document(s)
sufficient for making application for contempt, but party can show no knowledge or notice of Possession or control UCPR r 211
R 219 UCPR If fail to inspect, only get second chance if tender reasonable costs of providing the order Cairns possession refers to ownership and custody refers to the mere physical holding of a
another opportunity NOTE solicitor liable to a proceeding for contempt if order for delivery, production or document, regardless of ownership
R 221UCPR: A party may disclose to another party a document relating only to damages only if inspection made and served on solicitor and solicitor fails, without reasonable excuse to give Erskine v Mc Dowall control did not extend to documents where a party could obtain copies
the other party asks for its disclosure. notice of the order to the party under the FOI Act
You only have to provide documents in relation to damages where the other party requests Non-party disclosure Lonrho Ltd v Shell Petroleum Co Ltd House of Lords a party not having a present power over
them R 242 UCPR party may require non-party to disclose documents directly relevant to allegation in a document is not required to take steps to obtain it.
issue, in possession or control, which non-party could be required to produce at trial.
Disclosure of documents: when Confidentiality
R 214(2) UCPR by notice Material obtained by compulsory disclosure process may only be used for the purpose of the
A If ordered, before close of pleadings, as ordered Requiring production w/in 14 days. litigation.
B if application for summary decision -Disclosure of documents of generated by non party, must be directly relevant. Distillers Company (Bio-chemicals) Ltd v Times Newspapers Ltd
C within 28 days of close of pleadings -Not permitted if there is another reasonably simple and inexpensive way of proving matter. -Discovered documents were made available to newspaper. Court restrained publication -
D when any further pleading or amended pleading is delivered Example which was an abuse of the process of the court.
E w/in 7 days of acquiring possession / control of document after a)-c) Injured mother has been taken to hospital. Home Office v Harman
F if requested, w/in 28 days of written request What non-parties might have possession of relevant documents? -Solicitors held guilty of contempt of court for making available to journalist documents
Privilege How might the documents be relevant to a fact in issue? obtained on discovery.
R 213 UCPR Non-party disclosure NOTICE You cannot do that with documents obtained via disclosure
-if party claims privilege and R 243 UCPR notice must Central Qld Cement Pty Ltd v Hardy
-other party challenges -be issued in the same way as a claim Misuses of information provided in supplementary witness statements given to press
-privilege claimant must within 7 days file and serve affidavit stating the claim: affidavit -must -state allegation in issue injunction granted.
be made by individual who knows the facts giving rise to the claim -Include certificate by solicitor that there is no other reasonably simple inexpensive way -of When Disclosure may be resisted
R 224 UCPR proving matter Communications may be protected from compulsory disclosure by law, rule of Court or Court
Court may relieve party from duty of disclosure -be in approved form order if they are subject to one of three privileges.
(See rule for details) -be served like claim, within 3 months of issue The privileges are:
Order -the applicant may serve the respondent only after the applicant has served all other persons -Legal professional privilege
R 223 (1) court may order disclosure, effected by delivering copies or producing for inspection who are required to be served under rule 244 (serve first the owner of -Privilege against self-incrimination, and
document or person about whom info sought, unless they are likely to fabricate evidence or -Public interest privilege.
R 223 (2) UCPR court may order party to file and serve affidavit that document never existed, or perpetrate a fraud). Legal professional privilege
does not exist and when it ceased to exist or passed out of possession or control This CL privilege protects communications between lawyers and clients made for the dominant
R 223 (5) UCPR court may inspect document Document must be served personally on the non-party purpose of seeking or providing legal advice and communications made for the dominant
Disclosure of documents: Court is reluctant to bring non-partys into the trial unless necessary purpose of use in, or in relation to, existing or reasonably anticipated legal proceedings.
consequences of non-disclosure 2 Limbs; the advice limb and the litigation limb
R 225(1) UCPR party who does not disclose R 244 notice also to be served on others affected by the notice Lawyers are not required to, nor must they disclose information that falls within these
-must not tender or adduce evidence as to contents w/o leave R 245 person can object to production within 7 days after service of the notice or with courts categories.
-is liable to contempt for non-disclosure leave, at a later time -Lawyers cannot disclose that information without written consent (client permission)
-may suffer costs penalties Objection to be written, served on applicant, respondent and clearly state reasons for objection -Client can waive professional privilege if they want to
(2) Other party may apply for Reasons can include expense and inconvenience, lack of relevance, lack of particularity in -Expert reports are not privileged 212 (2) UCPR
order staying/dismissing proceedings describing document(s), claim of privilege, confidential nature of documents, effect of
judgment or other order disclosure on a person, if objector not served with the notice Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission
order for disclosure R 246 objection stays the notice Note legal advice from an accountant who has a law degree not subject to privilege
R 247 Within 7 days after service of notice of objection the applicant can apply for decision by Glengallen Investments Pty Ltd v Arthur Andersen
Depends on the facts as to what is done, but there are some extreme consequences in regards court as to objection.
to non-disclosure. Court can lift the stay, vary the notice of non party disclosure or set aside the notice Covers communication in any form but it does not protect objects.
R 227 (1) UCPR Documents disclosed must be produced at the trial if: Each party to bear their own costs subject to court looking at a different costs order based on - Re Bell: Public Policy Exceptions for example the whereabouts of a child.
(a) Notice to produce them has been given with reasonable particularity; and merits of the objection, public interest in efficient and informed conduct of litigation and public Scope of the Privilege
(b) Their production is asked for at the trial. interest in not discouraging objections in good faith by non parties Includes communications in documents/ conversations and written reports
(2) A document disclosed under this division that is tendered at the trial is admissible in R 248 document(s) in notice to be produced for inspection at respondents place of business or Doesnt include physical evidence
evidence against the disclosing party as relevant and as being what it purports to be. at respondents solicitor within ordinary business hours or at another agreed place Packer v DCT
If you were to produce your passport at trial, then it is purported to be so (obvious) R 249 costs of production applicant to pay reasonable costs and expenses Trust account ledgers in law firm not protected.
Statutory Abrogation
Solicitors duty to disclose documents
R 212(2) UCPR Expert reports are not privileged from disclosure.
RR 547-552 UCPR statement of loss and damage and expert info in PI cases Objection to state grounds and facts of objection R 355(1) UCPR Offer must remain open for acceptance for 14 days (unless a longer period is
-Client can waive the privilege R 233 grounds for objection eg not relevant, not reasonably necessary for court to decide specified):
-Communications in furtherance of crime or fraud or abuse of power are not protected matter, another simpler and less expensive way to prove matter, interrogatory is oppressive or -Court has power to shorten under R 7
-Public policy exceptions: whereabouts of a child: Re Bell; ex parte Lees vexatious R 358(2) UCPR An offer is accepted by written notice served on the offeror or their solicitor
Privilege against self-incrimination Court can decide the objection R 365 UCPR Where a party fails to comply with the terms of an accepted offer, the other party
- A party need not produce incriminating evidence R 234 unnecessary interrogatories do not have to be answered - court decision on application may:
- See s 10 Evidence Act 1977 ( Qld) of party Continue with the action as if the offer had not been accepted, or Apply to the court for
- Privilege is a rule of law R 235 who gives affidavit verifying interrogatories judgment in terms of the offer.
Public interest privilege Lanyon Pty Ltd v Commonwealth court weighs competing interests R 236 failure to answer interrogatory court can order answer or further order, person to be
of parties against needs of the government examined orally -Court has power to use a costs order to penalize parties who fail to accept certain settlement
R 237 failure to comply with order stay/dismiss proceedings, give judgment, order filing and offers.
serving of answer, punish for contempt 352-365 UCPR - A party who doesnt accept an offer and who subsequently receives a judgment
Public Interest Privilege
R 238 answers can be tendered in evidence less favourable than the offer can be penalised by adverse costs orders.
-Based on the grounds of protecting the public interest R 357 No statement that offer been made can be contained in a pleading or affidavit
-Defence documents or those used by the police force or those concerning the affairs of R 240 UCPR If an order re interrogatories or for delivery, production or inspection of documents Offers not filed
government at the highest levels. is served on solicitor for a party against whom an order is made, service is sufficient for making If offer not accepted, no communication to court unless quantum and liability decided and only
-Disclosure would inhibit the proper running of the defence forces, police force or executive application for contempt of court for disobedience to order. issue is costs
government. But party may show no knowledge of order See R 357 (5), (6) and (7)
The claim may be made: - If solicitor fails w/o reasonable excuse to give notice of order to party, solicitor is liable to a R 358 accepting an offer
(i) where the crown is a party; and proceeding for contempt of court Written notice
(ii) where crown documents are sought, even if the crown is not a party Can make a counter offer
Solicitor be in contempt of court If offer accepted court can incorporate conditions into judgment
INTERROGATORIES DISCONTINUANCE AND SETTLEMENT If offer accepted and includes offer to pay costs order of court taken to have been
Interrogatories are questions on paper: A means to obtain factual information 95% of proceedings end short of a full trial made in accordance with offer re costs
Purpose: To obtain admissions or damage the other partys case/credibility Because they may be: Note R 359 person under legal incapacity acceptance of offer not binding until approved by
Settled Court ( r98) or public trustee
R 229 UCPR: With the court's leave, a person may, at any time, deliver interrogatories: Discontinued Possible consequences of failure to accept an offer to settle differ for plaintiffs & defendants.
(a) To a party to a proceeding, including a third party under chapter 6, part 6; 65 or Alternatively, a party may obtain: PLAINTIFF / DEFENDANT OFFERS
(b) To help decide whether a person is an appropriate party to the proceedingto a person who Default judgment SIMPLIFIED, Plaintiff/Defendant Offers
is not a party. Summary judgment R 360:
(2) The number of interrogatories may be more than 30 only if the court directs a greater Have a claim or defence struck out. -Plaintiff makes an offer, not accepted by defendant
number may be delivered. (3) For this rule, each distinct question is 1 interrogatory Policy ideals -Plaintiff does the same or better at trial
Obtaining Leave to deliver Interrogatories -Litigants should have access to full procedure of courts Then the court must penalise the defendant
R 230 court may give leave to deliver interrogatories -Should not be allowed to take up time/resources by making unmeritorious claims/defences Defendant then pays Plaintiffs costs from start of proceedings on an indemnity basis
a) On application w/o notice to other party -Sanctions imposed for failure to comply with procedural requirements including time limits. R 361:
b) Only if satisfied not likely another reasonably simple and inexpensive way of proving the -Defendant makes an offer, not accepted by the plaintiff
Encouraging settlement
matter -Plaintiff does no better at trial
Two ways:
(2) Application must be accompanied by draft set of Interrogatories. -Defendant pays the plaintiffs costs on a standard basic up to and including the day of service of
1. Without Prejudice rules (CL)
How are they answered? 2. Offers to settle regulated by rules as to costs. the offer
MC cannot give leave unless amount of claim more than $7500 -After which the plaintiff pays the defendants costs on a standard basis because they did not
-Communications between parties to a dispute made for the purpose of negotiating a accept the reasonable offer
Rule 231 deals with answering interrogatories R 365 if party does not comply with accepted offer to settle, other party may elect to:
settlement are inadmissible as evidence.
(1) Subject to this part, a person to whom interrogatories are delivered is required to answer 1. Apply for a judgment on conditions of the offer or
them. -It is not necessary for an offer to settle to comply with the rules of court; courts do recognize 2. Continue with the proceeding as if offer had not been accepted
(2) The person must answer the interrogatories-- Calderbank Offers
(a) Within the time ordered by the court; and Lauchlan v Hartley
-The matter is in the discretion of the courts use costs to encourage consideration of
(b) By delivering to the interrogating party a statement in answer to the interrogatories and an -Involved claims of neg and cont. neg
reasonable offers to settle.
affidavit verifying the statement. -Def paid into court a total of $12000. The TJ awarded $16875.
Calderbank offers
Example -Ordered each party to pay their own costs.
At what time did your client (Mum) arrive at the shopping centre A Calderbank offer is a mechanism the making of an offer of settlement.
What shops/premises did she visit at the centre prior to entering Woles? CF: Maitland Hospital v Fisher (No 2)
How long did she spend at each of those shops? Calderbank v Calderbank
The offer, which is made by letter, is said to be made without prejudice, save as to costs. Plaintiff was awarded costs on a full indemnity basis because she recovered $206, 090 (plus
Did she visit the pub? costs) by judgment, having earlier offered to compromise for $200,000 (plus costs).
How long did spend at the pub? -2.5% Deficit was a significant sum for a maid
How many alcoholic drinks did she consume? Must remain secret until the court considers costs
Underwood v Underwood
Did she purchase for herself or her children bottled juice? At which point: Letter can be used as a ground for arguing that the offeree should pay the
offeror costs from the date of rejecting the offer if the offeree fared no better than the FORMALISING A SETTLEMENT
Representatives for the Mother
On the facts given so far, what line of enquiry would you pursue? offer at trial. -Terms of the settlement may be that the terms shall be made an order of the court. (Judgment
What facts need to be clarified? SETTLEMENT UNDER UCPR obtained via consent)
Non-disclosure - contempt -The action may be stayed, on terms scheduled to the order staying proceedings, except as
R 354(1): An offer to settle can be made at any time before judgment is given
necessary for the purpose of carrying such terms into effect.
R 353 UCPR: Process
R 232 must answer the substance of each interrogatory or object to answering them -Parties enter into a contract in the terms agreed (No court orders other than discontinuance)
-Courts jurisdiction at an end (If the terms are not complied with, injured party must seek (Most common form mediation) Non adversarial in nature
remedy under the new agreement) COA: BOC Neutrality, impartiality and independence
Green v Rozen 5 common types of settlement agreements Mediation: A facilitated negotiation Self determination and empowerment
1. Enter judgment and stay enforcement -Involves a mediator who assists parties involved in a negotiation/dispute to reach an Consensual outcomes
2. Consent judgment agreement Accessibility
3. Tomlin order proceeding stayed, liberty to apply -Mediators activities fall short of binding parties Effectiveness
4. Consent order staying proceedings on terms agreed on counsels briefs -No mediator has the power to make a decision for the parties; mediators cannot make Efficiency
5. No court order and proceedings are adjourned decisions Preservation of relationship
Discontinuance & withdrawal
-Plaintiff may discontinue the whole or any part of the action before receipt of a defence a Conciliation: 3rd Party: When is mediation not appropriate?
unilateral decision. -Recommends terms of settlement after evaluating the case. Power imbalance
R 303- party representing another party in proceedings can only discontinue or withdraw with -The parties are not obliged to accept the recommended terms High levels of conflict
courts leave Capacity
R 304 UCPR Adjudication: Authorized 3rd Party Cultural issues
- imposes a decision upon the parties to a dispute. Lack of commitment
Once a defence has been received, discontinuance is by leave of the court or consent of
-The decision is made upon the basis of evidence that the parties have presented in support of Delay tactics
other parties If there is more than one plaintiff, a particular plaintiff can only discontinue
their respective cases. Legal rights/entitlements
with the court's leave or the consent of the other parties (one of a number of co-plaintiffs
-May be held in a private forum before an arbitrator appointed by the parties (arbitration) or in Safety concerns
cannot discontinue the action on his own account).
a court or tribunal before a judge or tribunal appointed by the state (litigation). Physical barriers
If there is a counterclaim, a plaintiff can only discontinue with leave of court or consent
of defendant.
Arbitration v Litigation: An arbitrator has the power to make binding decisions; the main SETTLEMENT MEDIATION
A plaintiff may discontinue against one or more defendants without discontinuing against
difference is that litigation is public proceedings whereas arbitration is a private process; there Mediator encourages parties to compromise by use of persuasion, reality testing,
other defendants.
is no confidentiality involved in court: Benefits of Confidentiality pressure.
R 305 D can discontinue a C-C or withdraw part of it before being served with Ps answer
Little regard for process
otherwise with leave or by consent
ADR outside the court Mediator encourages parties to move from fixed positions
-90% of your time in practice =ADR
R 306 party can withdraw NITD at any time with courts leave or by consent
-Professional rules require you to advise clients as to alternatives. EVALUATIVE MEDIATION
-Mediation - an important service offered to clients in private legal practice. Mediator guides & advises parties on the basis of expertise with a view to
R 307 UCPR Plaintiff is usually liable for the defendants costs on discontinuance
-Incorporated into practices; deals mostly with family law: FAMILY LAW SCHEMES reaching settlement which accords with legal rights & obligations, industry norms,
R 308A must give written notice that proceeding settled
-In State Legal Aid commissions, participation in a mediation conference is often a pre-requisite or other objective social standards
R 309 if no leave required notice in the approved form
to a grant of legal assistance; the purpose being to avoid trial Highly interventional
If courts leave required, notice not required
INSTITUTIONALISED ADR Advice & opinion may be provided
R 310 UCPR Discontinuance does not give rise to issue estoppel and does not preclude a
plaintiff from bringing fresh proceedings -Mediation is used extensively in federal, state and territory courts and tribunals.
UCPR Rule 5 Case management THERAPEUTIC MEDIATION
R 311 Ps discontinuance does not prejudice C-C or consolidated proceedings
NEGOTIATION Parties assisted by mediator to deal therapeutically with the underlying causes of
the problem with a view to improving relationship as a basis for resolving the
STEP 12 CONSIDERING ADR Definition
dispute
...a process in which two or more parties with some ability to influence each other and without
the ability to have their way unilaterally communicate and interact with a view to making joint Can be little regard for process
Scope of ADR CONCILIATION
decisions on conflicts or problems affecting them.
One view: ADR encompasses all forms of dispute resolution other than adjudication through Likely also to have a facilitative component
MEDIATION
the court system Arbitration would be included. Definition NADRAC Conciliation is usually considered to be a process in which the
Definition
...a process in which two or more parties with some ability to influence each other and without participants to a dispute, with the assistance of a third person (the conciliator), identify the
Another view: only non-adjudicative processes of dispute resolution can be considered ADR issues in dispute, develop options, consider alternatives and endeavour to reach an
the ability to have their way unilaterally communicate and interact with a view to making joint
processes. Since arbitration is an adjudicative process, it would then be excluded. agreement. The conciliator has an advisory role, but not a determinative one.
decisions on conflicts or problems affecting them.
Key features: - Parties are often accompanied by expert advisors
How alternative are alternatives? Conciliation is:
Process driven
-Litigation is commenced in about 5% of contentious cases. Often rights focussed rather than interests focussed
A third person assists the parties to identify issues, explore and generate options, and assists
-Of the cases in which litigation is commenced, some 90-95 % is settled before a full trial. Often conducted within a legislative framework with prescriptive outcomes
the parties negotiations
-Trial: 5% of 5% of disputes. Often conducted by court/tribunal members
A third person assists parties in decision making
-Majority of disputes - settled in negotiation, mediation or some other dispute resolution CASE APPRAISAL
A third person assists the parties to reach agreement
process. Definition: is a process in which a dispute resolution practitioner (the case appraiser)
A third person assists the parties to communicate
The third person does not make the decisions investigates the dispute and provides advice on possible and desirable outcomes and the means
1. Determinative processes eg courts, arbitration, mini trials, med /arb Identifying and acknowledging needs, interests and concerns whereby these may be achieved.
2. Facilitative processes eg negotiation, mediation, conciliation
Fostering positive communications
3. Advisory processes eg conciliation, early neutral evaluation, case appraisal, Early neutral evaluation is a process in which the participants to a dispute present, at an early
Providing a safe environment
expert appraisal stage in attempting to resolve the dispute, present arguments and evidence to a dispute
Reducing conflict
4. Hybrid processes eg med/arb resolution practitioner. That practitioner makes a determination on the key issues in dispute,
Managing power imbalances, anxiety and emotion
FORMS OF ADR Positive encouragement to achieve resolution and most effective means of resolving the dispute without determining the facts of the dispute
Negotiation: Two Forms Key concepts in mediation:
1. Unassisted parties do it by themselves, without assistance from a third party. Confidentiality Expert appraisal is a process in which a dispute resolution practitioner, chosen on the basis of
2. Assisted - an independent third party assists the parties to negotiate a resolution. Voluntary process their expert knowledge of the subject matter (the expert appraiser), investigates the dispute.
The appraiser then provides advice on the facts and possible and desirable outcomes and the - Industrial relations disputes see Fair Work Act 2009 (Cth) R338 recording of proceedings
means whereby these may be achieved. - Arbitration regulated by legislation and case law R339 decision
- Process can be formal or informal, has procedural regulation and outcomes are R340 costs
Case Appraisal, Early Neutral Evaluation & Expert Appraisal enforceable R341 effect of decision
These processes are used when an expert is required dispute may be legally - Parties present documentary oral evidence to the arbitrator R342 certificate
complex, requires expertise and specialist knowledge - Decisions can be made based on legal rules and principles or on principles of R343 dissatisfied party
The expert expresses an opinion on the specialist, complex or technical issues equity and fairness R344 court awarded costs
Intention to influence parties - Awards must be in writing and include reasons
Bring a sense of reality - Awards are binding and final and enforceable as a court judgment UCPRs Costs
Provide an opinion on quantum and liability - See Commercial Arbitration Act 1990 (Qld) Rr346-351
Allow parties & their representatives to present their cases and provide
supporting documentation ADR IN QLD COURTS STEP 11 TRIAL AND POST TRIAL ISSUES
May require a number of sessions See Civil Proceedings Act 2011 and the Uniform Civil Procedure Rules 1999 Trial
May become binding on parties (UCPRs) Originating applications:
May be court ordered, contractually derived, or parties choice once dispute arises Trial dates may not be set until ADR process followed See UCPRs rr 461- 464 on filing an originating application the Registrar records a return
ADR options in Qld mediation and case appraisal part of case management date for the matter to come before the court
Combined or hybrid dispute resolution processes are processes in which the dispute resolution process Party has to estimate the time of the hearing
practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute S37 objects opportunity to participate in ADR , achieve negotiated Likely to be some adjournments, directions hearings and possibly interlocutory
resolution practitioner may facilitate discussions, as well as provide advice on the merits of the settlements, improve access to justice, reduce cost & delay, little formality & applications before the proceedings are finally determined
dispute. In hybrid processes, such as med-arb, the practitioner first uses one process technicality Setting Trial Dates
(mediation) and then a different one (arbitration). Confidential nature see s54 R 466 UCPR date for trial may be set at call over
Common hybrid process is med/arb DR practitioner begins the process as a mediation and By judge
then moves to arbitrate the dispute Civil Proceedings Act By registrar at judges direction.
Commonly used in workers compensation disputes S39 mediation or case appraisal Each has the power to list a matter for trial
DETERMANITIVE PROCESSES S40 defines mediation Rule 467 UCPR A proceeding started by claim cannot be set down for trial unless all the parties
Mini-trial is a process in which the participants present arguments and evidence to a dispute S 41 defines case appraisal sign a request for trial date in the approved form (form 48).
resolution practitioner who provides advice as to the facts of the dispute, and advice regarding S42 parties can refer dispute to ADR file consent order = referring order, UCPR A party is ready for trial if
possible, probable and desirable outcomes and the means whereby these may be achieved. r318 Disclosure and inspection completed
Commonly used in disputes when corporations involved S43, UCPR r 319 court may order ADR Request/order for particulars complied with
Parties make presentations to senior executives If referral to ADR, proceedings are stayed UCPR r 321 Interrogatories delivered & answered
Arguments are presented on facts and law and supported by documentation S44 UCPR r 322 parties must attend, must not impede ADR convenor or All necessary steps been taken
Adversarial in nature and similar to a court hearing sanctions All necessary witnesses available
Senior executives retire to deliberate and may do so with the assistance of a S45 procedure for case appraisal The proceeding is in all respects ready for trial
mediator, negotiation to facilitate negotiations and communication resulting in a S46 subpoenas to attend case appraisal but not mediation Note r 469 if party does not sign request and returned it within 21 days after
facilitative mediation S47 party unable to pay costs service on application court can dispense with signature
Litigation S48 agreement at mediation Form 48, Request for trial date
Process by which parties are required (under a set of court rules) to conduct a matter both prior S49 mediators certificate Request for trial date form 48
to and during a court hearing which then results in a binding decision being made by the court S49 case appraisers certificate Must indicate (by ticking), mode of trial eg:
Note determinative dispute resolution processes see NADRAC S50 orders giving effect to mediation agreement Any party elected trial by jury
S51 orders giving effect to case appraisers decision No party has elected/now requires trial by jury
Determinative dispute resolution processes are process in which a dispute resolution S54 confidentiality There is no right to trial by jury.
practitioner evaluates the dispute (which may include the hearing of formal evidence from the S52 immunity
participants) and makes a determination. Examples of determinative dispute resolution S53 - admissions Disclosure has been provided as required by the rules and any order of the court.
processes are arbitration, expert determination and private judging. Any order requiring particulars to be given has been complied with.
- Involves the use of procedural and evidentiary rules UCPRs: Mediation: Answers to any interrogatories have been delivered.
- Parties define the issues in dispute via their pleadings See rules 313 351 All necessary steps in the proceeding are complete.
- Parties are responsible for preparing their cases based on court rules r323 what the referring order must contain information for mediator including All necessary witnesses will be available
- Parties are responsible for presenting their evidence at the court hearing nature of the dispute & costs R 468 court can expedite a trial making an order that the proceeding is to be given priority in
- Parties potentially have little control over the ultimate outcome r 324 time frame the allocation of a trial date
- Outcomes are enforceable r325 parties to assist mediator R 470 UCPR - after signing request for trial, leave is required to
- May or may not be a right of appeal r 326 r amend pleading
r328 independent advice
request particulars
Arbitration r329 mediation record
make an application in the proceeding
See NADRAC r331 mediation certificate
Procedure at trial
Arbitration is a process in which the participants to a dispute present arguments and evidence R332 unsuccessful mediations
to a dispute resolution practitioner (the arbitrator) who makes a determination. Qld, parties have a right to trial by jury (subject to limitations).
Used extensively in commercial, industrial, building and employment disputes UCPRs: Case Appraisal R 472 UCPR Unless trial by jury is excluded by an Act, a plaintiff in the statement of claim or a
- Arbitration and litigation involve adjudication Rules 334 345 defendant in the defence may elect a trial by jury.
- Parties refer their dispute to an arbitrator, a binding decision is made in the form r334 referral to case appraiser
of an award r335 jurisdiction of case appraiser Qld, a jury trial is not allowed in any of the following:
- Commercial Arbitration Acts exist in all Australian jurisdictions - eg Commercial r336 appearances Proceedings for damages for PI arising out of a MV accident
Arbitration Act 1990 (Qld) R337 information
 Proceedings for damages for PI, including medical negligence and industrial
accidents
Legislation abrogating right to trial by jury
Motor Accident Insurance Act 1994, s 56
Civil Liability Act 2003, s 74
Personal Injuries Proceedings Act 2002, s 58
Workers Compensation and Rehabilitation Act 2003, s 390
Acts which preclude juries in proceedings
Trial by jury
Finally, note that the right to trial by jury is subject to the courts power to order a trial without
a jury: r 474
Rubin v Buchanan & Anor when trial by jury is appropriate
R 474 UCPR Court may order trial w/o jury if prolonged examination of records; or involves
technical, scientific or other issue not conveniently considered and resolved by jury.
R 475 UCPR Court may order trial by jury (Court has a general discretion to order a trial with, or
without, a jury on application being made to it).
Trial by jury
R 473 UCPR 3rd Party proceeding is tried same way as proceedings between plaintiffs and
defendants, but if court directs 3rd party proceeding to be tried separately, Def or 3rd P may
apply for trial by jury.
UCPR r 476 If D does not appear at trial, P can call evidence to show entitlement to judgment.
If P does not appear, D entitled to dismissal of Ps claim and can call evidence necessary to
establish judgment on C-C. D can also submit to judgment if P fails to appear.
R 476(4) court can set aside or vary any judgment or order obtained under 476(1)
R 477 court can adjourn a trial
R 478 court can inspect a place, process or thing or witness a demonstration
Ethics
In civil matters, both the plaintiff and defendant may put such matters in evidence or omit such
matters as they think fit, provided they do not knowingly mislead the court.
Evidence
R 390 - Evidence
At trial of claim ORAL
At hearing of application AFFIDAVIT
R 391 Court may call evidence
R 392 Evidence may be taken by telephone, video link etc
R 393 plans, photographs, videos, audio recordings or models - parties to forewarn each other;
try to get agreement to admission - at least 7 days prior
R 394 dispensing with the rules of evidence
(1) If a fact in issue is not seriously in dispute or strict proof of a fact in issue might cause
unnecessary or unreasonable expense, delay or inconvenience in a proceeding, the court may
order that evidence of the fact may be given at the trial or at any other stage of the proceeding
in any way the court directs.
(2) Without limiting subrule (1)
(a) the subrule applies to the proof of handwriting, proof of documents, proof of the identity of
parties and proof of authority; and (b) the court may order that evidence of a fact be given (i)
by a statement on oath of information and belief; or (ii) by the production of documents or
entries in records; or (iii) by the production of copies of documents or copies of entries in
records. (3) The court may at any time vary or revoke an order under this rule.
R 395 a party can rely on evidence given or an affidavit filed in another proceeding or in an
earlier stage of the proceeding with courts leave
Usual format for proceedings Ps case and then Ds case if burden of proof on at least 1 issue
on P
Opening addresses, examination in chief, cross examination, re examination, closing addresses
Delivery of a verdict , judgment
Subpoenas
R 414 UCPR Court may issue
Subpoenas for production
Subpoenas to give evidence
Subpoenas for production and to give evidence
Request for subpoena may be filed specifying name or designation of person and
Registrar must issue it.
R 415 must be in the approved form
- If a subpoena for production must include a notice advising that person has the right to apply
for it to be set aside on sufficient grounds, including, want of relevance, privilege,
oppressiveness (eg costs), non compliance with rules
R 416 power of court to set aside subpoena
R 417 court can order payment of costs/expenses for complying with subpoena
R 419 UCPR Subpoenas
Need not be complied with unless conduct money to meet reasonable expenses of compliance
is tendered with it
R 420 UCPR non-party can comply re document by producing it to Registry beforehand.
R 421 service under Ch 4, Parts 2,3, 4 and 5
When and Why issue a subpoena?
The service of a subpoena is the appropriate process by which a person may be compelled to
attend a trial as a witness or to produce documents to the court (Colbran).
R 422 UCPR non-compliance with subpoena is contempt of court. The person served may be
dealt with appropriately.
-Power to collect through the bailiff and have them produced in court
-If you havent subpoenaed your witnesses and they do not show, too bad you must subpoena
all witnesses.
If a party fails to appear or to produce documents, issuing party can normally obtain an
adjournment.
-Only applicable to documents which have been subject to discovery.
-Note: where there is a procedure by which a party may serve another party a notice to
produce at trial R 227 UCPR the notice to produce has the same coercive effect as a subpoena.
But note that R 227 UCPR only applies to documents which have been disclosed.
If you want anything else produced, you must subpoena it.
Service of a subpoena
R 421(1) UCPR
Provides that a subpoena may be served under chapter 4, parts 2, 3, 4 and 5.
This means that a subpoena may be served by personal service and ordinary service (and in any
other manner set out in Ch 4). Personal service strengthens the fact that subpoena was
actually served
R 421(2) UCPR
Compliance with a subpoena may be enforced, and a proceeding may be taken for
noncompliance with a subpoena, only if it is proved that the subpoena has been received by the
person to whom it is addressed or the person has actual knowledge of it.
Practical measure: receipt or actual knowledge must be proved to enforce the subpoena wise
to arrange for personal service.
DECISION ON PAPERS
R 487 decision without an oral hearing means a decision made by the court on written
material and submissions without parties attending
R 488 only applies to DC and trial division of the SC
R 489 party making an application including an application in a proceeding, can apply &
propose that it be decided without oral hearing
R 489(2) - If the applicant proposes the application be decided without an oral hearing, the
court must decide the application without an oral hearing unless
(a) under rule 491, the court considers it inappropriate to do so; or (b) under rule 494, the
respondent requires an oral hearing; or (c) under rule 495, the applicant abandons the request
for a decision without an oral hearing; or (d) the Chief Justice or Chief Judge suspends the
operation of this rule by direction.
R 490 procedure application, notice in approved form, draft order, written submission in
support
R 494 respondents right to require an oral hearing
R 498 if court makes an order without an oral hearing registrar to send each party a copy of
the order
Judgment / Order - Ch 16
R 658 UCPR
The court may make any order, including a judgment that the nature of the case requires.
R 659 UCPR:
Final relief granted in a proceeding started by claim is granted by giving a judgment setting out
the entitlement of a party to payment of money or another form of final relief.
Judgment is usually pronounced in the course of giving reasons for decision.
R 660 Order made by being pronounced in court by person making the order or set out in a
document & signed.
Order takes effect on the date made but court can order it takes effect on earlier or later day
R 663 reasons for order
R 666 consent orders registrar can give judgment if parties consent and registrar considers it
appropriate.
Consent order to be filed
Applies as if given by court
R 667 - 1) The court may vary or set aside an order before the earlier of the following
(a) the filing of the order; (b) the end of 7 days after the making of the order. (2)
The court may set aside an order at any time if
(a) the order was made in the absence of a party; or (b) the order was obtained by
fraud; or (c) the order is for an injunction or the appointment of a receiver; or (d)
the order does not reflect the court's intention at the time the order was made; or
(e) the party who has the benefit of the order consents; or (f) for a judgment for
specific performance, the court considers it appropriate for reasons that have
arisen since the order was made. (3) This rule does not apply to a default
judgment.
R 668 - 1) This rule applies if
(a) facts arise after an order is made entitling the person against whom the order
is made to be relieved from it; or (b) facts are discovered after an order is made
that, if discovered in time, would have entitled the person against whom the order
is made to an order or decision in the person's favour or to a different order. (2)
On application by the person mentioned in subrule (1), the court may stay
enforcement of the order against the person or give other appropriate relief.
(3) Without limiting subrule (2), the court may do one or more of the following
(a) direct the proceedings to be taken, and the questions or issue of fact to be
tried or decided, and the inquiries to be made, as the court considers just; (b) set
aside or vary the order; (c) make an order directing entry of satisfaction of the
judgment to be made.
Judge pronounces their judgement, solicitor types out the judges judgement then you file the
judgement at the court; it is then sealed and you thereafter have your final judgement.
COSTS
R 681(1) & (2): Unless these rules provide otherwise, costs of a proceeding, including an
application in a proceeding, are in the discretion of the court but follow the event, unless the
court orders otherwise.
R 681UCPR
General provision in relation to costs and generally states that the winner will recover their
costs
R 682 UCPR: Costs may be awarded at any stage of a proceeding or after the proceeding ends.
Costs of an application
Solicitor and own client costs
Lawyer and clients enter into retainer/costs agreements for the payment of costs see Legal
Profession Act 2007 (Qld) s 308
Party and Party costs:
Costs that court orders party to pay
A partial indemnity for costs to be paid to lawyer
Party/party costs determined by reference to court scales of costs
See UCPRs for scales of costs contained in schedules
Costs awards:
UCPR r 687 if a party is entitled to costs, the costs are to be assessed costs
Must be assessed by a costs assessor r 702
Standard basis unless rules provide or court orders, costs assessor assesses on standard basis
used to be known as party and party costs
When assessed on standard basis costs assessor must allow all costs necessary or proper for the
attainment of justice or for enforcing or defending the rights of the party whose costs are being
assessed r 702(2)
Court has power to make an award of costs on an indemnity basis used to be known as
solicitor and client costs
UCPR r 703 - required to be assessed and the costs assessor must allow all costs reasonably
incurred and of a reasonable amount, having regard to the court scale, any costs agreement and
charges ordinarily payable by a client to a solicitor for the work
Lawyers entitlement to costs on the standard basis costs award:
UCPR r 691 lawyers entitled to charge and be allowed costs under the scales of costs for work
done in the court
See UCPRs Scales of costs set out in the schedules 1(SC), 2 (DC) and 3 (MC)
UCPR r 691(5) - if the nature and importance, or the difficulty or urgency, of a proceeding and
the justice of the case justify it, the court may allow an increase of not more than 30% of the
Australian lawyer's costs allowable on an assessment under the relevant scale of costs.
R 693 UCPR: The costs of a proceeding do not include the costs of an application in the
proceeding, unless the court orders otherwise.
What it means:
R 693 UCPR interloc application costs not included in costs of proceedings unless court orders
otherwise (order might be made at the interloc hearing, or costs reserved for trial judge).
R 698 UCPR: If the court reserves costs of an application in a proceeding, the costs reserved
follow the event, unless the court orders otherwise.
Some specific provisions: rule 692 (amendment), rule 694 (default judgment), rule 695
(shortening or extending time)
Other relevant provisions
R 697 UCPR: when the plaintiff obtains judgment that, when proceedings began, could have
been given in a lower court (see the rule).
Where they achieve a result that could be obtained in a lower court, adverse costs are due.
R 690 UCPR: The court may order a lawyer to repay to the lawyer's client all or part of any costs
ordered to be paid by the client to another party if the party incurred the costs because of the
lawyer's delay, misconduct or negligence.
Standard basis of assessment
R702 UCPR
(1) Unless these rules or an order of the court provides otherwise, a costs assessor must assess
costs on the standard basis. (Previously party and party costs)
(2) When assessing costs on the standard basis, a costs assessor must allow all costs necessary
or proper for the attainment of justice or for enforcing or defending the rights of the party
whose costs are being assessed.
See scales of fees mentioned in rule 691
Indemnity basis
Where is a money order enforceable? See R 801
Maitland; she made an offer to settle for 200K and they awarded 206K ect.
Indemnity Costs: Where failure to accept a reasonable offer. Note the existence of enforcement hearings, R 803 UCPR (an oral examination) to obtain
information to facilitate the enforcement of a money order.
Indemnity basis of assessment They go into the witness box and you can cross examine with respect to financial position.
R 703 UCPR
(1) The court may order costs to be assessed on the indemnity basis (previously solicitor and Salient points
client costs) Purpose is to obtain information
(3) When assessing costs on the indemnity basis, a costs assessor must allow all costs Can take place at end of a trial or when money order made
reasonably incurred and of a reasonable amount, having regard to-- Court can issue an enforcement summons hearing
(a) The scale of fees prescribed for the court; and Enforcement debtor may be required to complete a statement of financial
(b) Any costs agreement between the party to whom the costs are payable and the party's position
solicitor; and If not held at the end of the trial then should be heard in district where person
(c) charges ordinarily payable by a client to a solicitor for the work. served with summons resides or if not applicable where the money order was
made
Assessment of costs: Conduct money if not in district where person resides
Process for assessment of costs see Rr 705 738 Subpoena can be issued to person with knowledge of the enforcement debtor to
Agreement r 707 consent order attend
Objections r 706 Failure to attend the hearing may mean a warrant for arrest is issued
Application for costs assessment r 710 process
Appointment of costs assessor rr 712 & 713 Enforcement Warrants/Charging Orders
Powers of cost assessing registrar r 714 - (a) administer an oath or receive an affirmation; (b) R 817-827 UCPR general provisions re procedure, content of warrant.
examine witnesses; (c) if satisfied there is or may be a conflict of interest between the solicitor
and the partyrequire the party to be represented by another solicitor; (d) unless the court R 828-837 UCPR
orders otherwiseextend or shorten the time for taking any step in the assessment; (e) direct Enforcement warrants for seizure and sale of property (see especially r 828 court may issue
or require a party to produce documents; (f) give directions about the conduct of the enforcement warrant authorising enforcement officer to seize and sell in satisfaction of money
assessment process; (g) anything else the court directs. order all real and personal property in which enforcement debtor has legal or beneficial interest
R 715 powers of costs assessors - the court may, by order, give a costs assessor who is not an R 839-846 UCPR
assessing registrar a power mentioned in rule 714 in relation to a costs assessment. Enforcement warrants for redirection of debts
R 720 procedure on assessment
R 721 matters costs assessor must consider R 855-867 UCPR Enforcement warrants for redirection of earnings (see especially rule 856)
R 722 assessment limited to an objection
R 725 disallowing costs where lawyer acts for more than 1 party R 868 UCPR Payment by instalment
R 726 counsels advice and settling documents R 874 UCPR onwards, charging orders
R 727 obtaining evidence and attendance of witnesses R 883 UCPR onwards, receivers
R 729 premature brief Execution / enforcement
R 731 refresher fees R 898 UCPR
Costs assessor decides costs of the assessment order to perform or abstain from an act (injunction)
Rr 733- 734 offers to settle costs and acceptance May be enforced by punishment for contempt seizing property: R 917 UCPR
R 736 parties agreement on costs punishing officer of corporation for contempt seizing property of officer
R 737 certificate of assessment Execution / enforcement
R 738 request for written reasons for costs decision
R 740 costs order becomes a judgment of the court R 899 UCPR
R 741 costs can be set off Substituted performance
R 742 dissatisfied party can seek a review of cost assessors decision (1) If a non-money order requires a person to perform an act and the person does not perform
the act, the court may
Note R 690 - The court may order a lawyer to repay to the lawyer's client all or part of any costs (a) appoint another person to perform the act; and
ordered to be paid by the client to another party if the party incurred the costs because of the (b) order the person liable under the order to pay the costs and expenses caused by the failure
lawyer's delay, misconduct or negligence. to perform the act.
Myers v Elman costs awarded (2) Subrule (1) does not affect the courts power to
Execution / enforcement (a) appoint a person to execute a document by order of the court; or
When is a judgment enforceable? (b) punish for contempt.
Depends on the jurisdiction and the type of judgment
Eg money orders in Qld are enforceable under r 799 at any time within 6 years after the date Execution/enforcement
the money order was made R 900 UCPR Undertakings
Note r 796 - if the money order is conditional can only be enforced if the condition has been (1) An undertaking, other than for the payment of money, may be enforced in 1 or more of the
satisfied and a court has given leave to enforce the order following ways
(a) punishment for contempt
Stay of money orders see R 800 all or part can be stayed because of facts arising or (b) seizing property of the person liable
discovered after the order was made application and affidavit (c) corporation either or both
(2) An undertaking for the payment of money may be enforced as if it were a money order.
(3) If a party is in breach of an undertaking, another party may apply for compensation to the
court in the proceeding in which the undertaking was given.
(4) may give judgment against the party who is in breach for the amount the court decides
should be paid.

Possession of real and personal property - under r 915 a court may issue an enforcement
warrant authorising the enforcement officer to enter on land and deliver possession to person
entitled to possession
See also r 917
See generally on enforcement warrants rr 906 - 920