Civil Procedure: Commentary and Materials

Full Title
Copyright
List of Tables and Figures
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Practice Notes and Directions
Abbreviations
Table of Contents
Chapter 1 Court Adjudication and the Civil Justice System
Overview
Introduction
What is Civil Procedure?
Interdependence of Substance and Procedure
Sources of Civil Procedural Law
Statutory jurisdiction
Inherent jurisdiction
Access to Civil Justice — The Context
Adversarial and Inquisitorial Models of Litigation
Operation of the Australian Civil Justice System
Principle of Open Justice
Introduction
Exceptions to the principle of open justice
Open justice and orders made in chambers
Human Rights Challenges to the Civil Justice System
Right to a fair hearing
Victoria
Australian Capital Territory
Flaws in, and Reform of, the Civil Justice System
Self-represented litigants
Reform of the civil justice system
Chapter 2 Case Management and the Overriding Purpose
Overview
Role of the Judge
Managerial judging
Case Management — Concepts
Case Management Schemes — by Jurisdiction
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
Special leave applications — High Court
Integration of ADR processes
Mandatory ADR as case management
Development of the Overriding Purpose
Overriding Purpose Provisions
Relevant provisions
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
The elements and functions of the overriding purpose
The parties’ duty to observe the overriding purpose
Challenging Case Management Decisions and the Interpretation of the Overriding Purpose
Judicial interpretation
Case management and the overriding purpose — the future?
Chapter 3 Alternative Dispute Resolution
Overview
Introduction
Growth in ADR
Within the justice system
Outside the legal system
International mediation and its enforcement
ADR processes and information technologies
Case management, standards and professional development
Types of ADR Processes
Determinative processes
Adjudication
Arbitration
Expert determination or appraisal
Private judging
Early neutral evaluation
Case appraisal
Facilitative processes
Facilitation
Conciliation
Mediation
Ombudsman
Mediation
Approaches to negotiation
Features of Mediation
Accessible
Voluntary
Confidential
Statutory provisions that relate only to mediations
Evidentiary privilege
Contractual terms
Court orders
Mediator standards and ethical codes
Public policy to be reinforced by common law
Facilitative
Other Issues with Mediation
National Mediator Accreditation System (NMAS)
Power imbalances
Enforcement of agreements to mediate
Good faith
Evaluating mediation
Arbitration
Features of arbitration
Court-Annexed ADR
Federal courts
Civil Dispute Resolution Act 2011 (Cth)
Federal Court Rules 2011 (Cth)
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
ADR and the Legal Profession
Conclusion
Chapter 4 Jurisdiction
Overview
Subject Matter Jurisdiction
High Court
Original jurisdiction
Appellate jurisdiction
Federal Court
Original jurisdiction
Appellate jurisdiction
Reference jurisdiction
Associated jurisdiction; accrued jurisdiction
Incidental jurisdiction
Federal Circuit Court
Supreme Courts
Original and appellate jurisdiction
Federal jurisdiction
Inherent jurisdiction
Territorial Jurisdiction
Presence of a defendant in the jurisdiction
Submission to the jurisdiction
Statutory extension of territorial jurisdiction
Cross-Vesting of Jurisdiction
Purpose of the cross-vesting scheme
Constitutional invalidity
Investment and conferral of jurisdiction
Transfer of proceedings
Applicable law
Special federal matters
Inferior courts
Limitation on appeals
Procedure
Federal Court
Australian Capital Territory
New South Wales
Northern Territory and Victoria
Queensland and Western Australia
South Australia
Tasmania
Chapter 5 Non-compliance, Amendment and Time
Overview
Introduction
Non-Compliance
Irregularities and nullities
Non-Compliance and Court Orders
Self-executing orders
Want of Prosecution
Dismissal under the courts’ inherent jurisdiction
Dismissal under the Rules of Court
Dismissal and case management
Amendment
Amendment of pleadings
Obtaining leave to amend
Discretionary factors affecting amendment
Relevance of case management
When amendment takes effect
Amendment to add statute-barred claims
Amendment to add or remove parties
What is a mistake in the name of a party?
‘Slip rule’
Time
Reckoning
Extension and abridgment
Chapter 6 Limitation of Actions
Overview
Introduction
State and territory jurisdictions
Federal jurisdiction
Equitable remedies
Application of statutory limitation periods to equitable claims by analogy
Purpose of Limitation Periods
Running of Time
Examples of limitation periods — general
Accrual of cause of action
Discoverability
Postponement
Disability
Effect of Expiry of the Limitation Period
Barring the remedy or right?
Extension of the Limitation Period
Personal Injury Actions
Date of accrual versus date of discoverability in personal injuries actions
Special limitation periods for personal injuries to minors
Minors injured by close relatives or associates
Injuries to children in the Australian Capital Territory
Latent injuries
Dust-related conditions
Extensions of Time for Personal Injuries Actions
‘Just and reasonable’
Exercise of judicial discretion on the ‘just and reasonable’ ground
Material facts of a decisive nature
Notice of Claims for Personal Injury Actions Involving Motor Vehicles and Workers’ Compensation
Limitations Periods and Choice of Law
Substantive or procedural?
Chapter 7 Commencing Proceedings
Overview
Lawyers’ Responsibilities to Clients
General
Costs disclosures
Letters of Demand
Pre-Commencement Obligations
Genuine steps to resolve a dispute
Prospects of success
Proper basis
Commencing Proceedings
Terminology
Disputes Predominantly Involving Factual Issues
Writ
Indorsements
Relationship between the writ and statement of claim
Concurrent writs
Other types of originating process for disputes involving factual issues
Disputes Predominantly Involving Legal Issues
Duration of Originating Process
Renewal of originating process
Chapter 8 Service
Overview
Introduction
Personal Service
Foundation of jurisdiction
Manner of service
Exceptions to personal service
Consensual service
Solicitor’s undertaking to accept service
Time requirements
Cross-vesting schemes
Concurrent writ
Affidavit of service
Ordinary Service
Address for service
Service by filing
Service by the court
Informal service
Service by facsimile
Service by prepaid post
Service by document exchange (DX)
Service by electronic means
Interlocutory injunctions
Statutory modification
Special Parties
Corporations
Domestic corporations
Foreign corporations
Government owned corporations
Partnerships, business names, and unincorporated associations
Agents
Spouses
Infants
Mentally ill persons
Crown and judicial officers
Third parties
Prisoners or detainees
‘Keeping house’
Special Actions
Actions for recovery of land
Motor vehicle personal injuries claims
Indorsements
Proof of Service
Substituted Service
Practical impossibility of actual service
Method of substituted service
Jurisdictional limitations
The application
The order
Service Out of the Jurisdiction
Service out of the jurisdiction but within Australia
Service and Execution of Process Act 1992 (Cth)
Service and Execution of Process Regulations 1993 (Cth)
Service outside Australia
Service outside Australia under the Rules of Court — nexus with jurisdiction
Categories of nexus
Service outside Australia under the Rules of Court (diplomatic channels)
Service outside Australia under the Hague Service Convention
Effecting service outside Australia — notices and indorsements
Setting aside service outside Australia
Stay of proceedings served outside Australia
Service of foreign legal process inside the jurisdiction
Service in New Zealand
Judgments and Orders
Setting Aside Service Irregularities
Chapter 9 Appearance
Overview
Introduction
Why Enter an Appearance?
Who May Enter an Appearance?
Corporations
Partnerships
Business name
Multiple defendants
Third parties
Undertakings
Types of Appearances
Procedure for Entry of Appearance
Time Limited for Appearance
Unconditional Appearance
Submission to the jurisdiction
Waiver
Stale writ
Conditional Appearance
Examples of appropriate circumstances for a conditional appearance
Objection to jurisdiction
Forum non conveniens
Immunity
Service irregularities
Examples of inappropriate circumstances for entry of a conditional appearance
A different venue within the jurisdiction is required by contract
A compromised cause of action
Alternatives to a conditional appearance
Appearance Under Protest
Appearance Gratis and Submitting Appearance
Failure to Enter an Appearance
Waiver
Default judgment
Amendment, Withdrawal and Removal of Appearances
Chapter 10 Joinder of Parties and Actions
Overview
Introduction
Res Judicata and Issue Estoppel
Introduction
Res judicata
Issue estoppel
Definition
Rules Governing Joinder
The rules and their interpretation
Other matters affecting joinder
Joinder of Parties
Mandatory or compulsory joinder
Joinder of Claims
By the plaintiff
By the defendant — counterclaims and set-off
Counterclaims
What is the nature of a counterclaim?
Set-off
Addition, substitution and removal of parties
Dealing with Particular Parties
Persons under a disability
Partners of firms
Deceased parties, executors, administrators and trustees
Corporations
Corporations under administration, dissolved or otherwise defunct
Bankrupt persons
Consolidation
Third Party Proceedings
Contribution
Chapter 11 Group Proceedings
Overview
Traditional Representative Proceedings
Class Actions
Federal Court class actions
Federal Court of Australia Act 1976 (Cth) Pt IVA and class action provisions in New South Wales, Queensland and Victoria
Comparative analysis
Who’s who?
Originating process and case management
Opt out
Altering the group
Preliminary questions and summary judgment
Issues not in common
Notices and communication
Settlement
Discontinuance
Powers, orders and judgment
Costs
Appeal
ALRC suggested reforms to solicitors’ fees, conflicts of interest, regulatory redress and review of substantive law
Chapter 12 Pleading
Overview
Purpose of Pleadings
Contents of Pleadings
Usual pleadings
Pleading generally
Material facts
Facts, not evidence
Facts and law
Pleading a statutory provision
Miscellaneous rules of pleading
Documents and conversations
Conditions precedent
Presumptions
Points of law
Formal requirements
Certificate of legal representative — Federal Court, Australian Capital Territory, South Australia and Victoria
Pleadings to be verified — New South Wales
Alternatives to pleading — Federal Court and South Australia
Plain English
Procedure
Statement of Claim
Procedural matters
Content
Order of statement of claim
Prescribed details — Australian Capital Territory
Must disclose a cause of action
Should not anticipate the defence
Australian Capital Territory and Queensland — nature and amount of damages claimed to be pleaded
Claim for relief
Defence
Contents generally
Denials
Affirmative pleading
Counterclaim and Set-off
Counterclaim
Reply and defence to counterclaim
Set-off
Set-off and counterclaim contrasted
Particulars
Formal requirements
Purpose of particulars
Pleadings and particulars
Particulars and evidence
Procedure where particulars are inadequate
Personal injury
Striking Out Pleadings
No reasonable cause of action
Embarrassment
Chapter 13 Summary Disposition
Overview
Policy Issues
Default Judgment
Judgment in default of appearance
Default judgment — liquidated claims and damages
Setting aside default judgment
Costs
Operation of the default judgment system
Judgment on striking out or default of pleading
Judgment on failure to comply with a time stipulation
Summary Judgment
What is summary judgment?
‘Traditional’, ‘No Real Prospect’ and ‘Reasonable’ Approaches to Summary Jurisdiction
‘Traditional’ approach
‘No real prospect’ approach
‘Reasonable’ approach
Discretion to allow the trial to proceed
Summary Judgment for the Plaintiff
What must the plaintiff establish?
Application by the plaintiff for summary judgment — principles and process
Issue of law
Failure by defendant to appear
Summary Judgment for the Defendant
Abuse of Process
Establishing abuse of process
Delay constituting abuse of process
Vexatious Litigants
Chapter 14 Discovery
Overview
Discovery and Inspection of Documents
Requirements
Australian Capital Territory, Northern Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia
Federal Court
New South Wales
Exclusion of privileged documents
Document
Relevance of documents
Australian Capital Territory and Western Australia
Federal Court and Tasmania
New South Wales
Northern Territory
Queensland and South Australia
Victoria
Documents exempted from discovery
Possession, custody or power
Restricted discovery
Deferral of discovery
Further discovery and particular discovery
Discovery of documents and information technology
Parties obliged to give discovery
Solicitor’s obligations
Discovery — a continuing obligation
Permitted use of discovered documents
Default
Discovery from Non-Parties and Potential Parties
Preliminary discovery in equity
Identifying a prospective defendant
Discovery from prospective defendant
Discovery from non-party
Interrogatories
What are interrogatories?
When are interrogatories permitted?
Scope of interrogatories
Answers to interrogatories
Default
Objecting to answering interrogatories
Oral Discovery — Northern Territory and Victoria
Privilege
Introduction
Legal professional privilege
Scope and rationale
‘Dominant purpose’ test — common law
Limbs of legal professional privilege
Copies of unprivileged documents
‘Client legal privilege’ under legislation
Statutory removal of privilege for expert reports
Self-incrimination, penalties and forfeiture
Scope and rationale of the privilege against self-incrimination
Penalties and forfeiture
Statutory recognition and modification
Public interest
Scope and rationale
Statutory recognition
Without prejudice communications
Scope and rationale
Statutory recognition and modification
Other statutory privileges
Privilege for professional confidential relationships
Priest and penitent
Spousal privilege
Waiver of privilege
Chapter 15 Further Means of Obtaining Evidence
Overview
Inspection and Testing of Property
Existing proceeding
Proceeding not yet commenced
Personal Injury Proceedings — Medical Examinations, Particulars and Documents Relating to Loss and Damage
Medical examinations
Rules of Court
Statutory provisions
Inherent jurisdiction
Examination must be reasonable
Particulars and documents relating to loss and damage
Australian Capital Territory
New South Wales
Queensland
South Australia
Tasmania
Northern Territory and Victoria
Disclosing Expert Evidence
Practice in each jurisdiction
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
Uniform Evidence Acts
Notices to Admit
Procedure
Cost consequences
Practical observations on the use of notices
Withdrawal of admissions
Subpoenas
Introduction
Issuing a subpoena
Forms of subpoenas
Subpoena to employer, company
Payment to witnesses for expenses incurred in complying with a subpoena
Service of a subpoena
Service out of the jurisdiction
Subpoena for production of documents
Production before trial
Setting a subpoena aside
Admitting into evidence documents produced on subpoena
Failing to attend on a subpoena
Notice to produce documents at trial
Chapter 16 Affidavits
Overview
Introduction
Affidavits and Oral Evidence
Interlocutory and Trial Affidavits
Form
Use of facsimiles
Electronic affidavits
Structure
Heading and title
Drafting
Contents
Taking an Affidavit
Jurat and signatures
Witness
Exhibits, Annexures and Schedules
Filing
Service
Timing
Cross-Examination
Scandalous and Irrelevant
Use of Affidavits
Use of an earlier affidavit
Evidential use of an affidavit
Use of an opponent’s affidavit
Interlineation, Erasures and Other Alterations
Trial by Affidavit
Irregularities and Defective Affidavits
Objections to Affidavits
A Solicitor’s Duty When Preparing Affidavits
Chapter 17 Interlocutory Procedures
Overview
Jurisdiction of Masters, Associate Judges, Judicial Registrars and Registrars
Nature of Interlocutory Orders
Distinguishing interlocutory from final orders
Making an interlocutory application
Service of interlocutory applications
Ex parte applications
Interlocutory applications in the absence of an oral hearing
Medical examinations
Appeals from interlocutory orders
Injunctions
Serious question to be tried
Balance of convenience
Interim injunctions
Status quo
Undertaking as to damages
Service of order
Other aspects of injunctions
Search Orders (Anton Piller Orders)
Privilege against self-incrimination
Search orders (Anton Piller orders) under the Rules of Court
Freezing Orders (Mareva Orders)
Interim Preservation, Management and Custody of Property
Security for Costs
Introduction
Other legislation
Court’s inherent power to make such orders
Court’s discretion
Provisional Liquidation and Receivers
Provisional liquidation
Receivers
Accounts and Inquiries
Discharge and Variation of Interlocutory Orders
Chapter 18 Settlement
Overview
Introduction
Compromise of Proceedings
Facilitating Settlement
Without prejudice
Formal offers to settle
Payment into court
Calderbank offers
Statutory offers of compromise
Offers of settlement before action
Relationship between the offer of compromise rules and Calderbank offers
Formalising Settlement Agreements
Consequences of formalising settlement
Tomlin orders
Infants and people under a legal disability
Entering consent judgments
Discontinuance and Withdrawal
The rules
Chapter 19 Trial
Overview
Introduction
Setting Down for Trial
Federal Court
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
Mode of Trial
Trial by judge alone
Trial by jury
When is there a prima facie right to a jury trial?
Rebutting the prima facie presumption
When will jury trials be ordered in the absence of a prima facie right?
Rebutting the presumption in favour of trial by judge alone — the Commonwealth and territories
Can trial by judge alone be ordered after a jury trial has begun?
Use of juries
Does the jury still have a role to play?
Arbitration and referees
Splitting Trials
Presenting the Case
Order of evidence and addresses
Content of addresses
Effects of non-attendance
No case submissions and the requirement to elect not to call evidence
No case submissions after the defendant has given evidence
Reopening cases
Adjournments
Procedures in hearings by special referees
Verdicts and Reports
Verdicts
When is a verdict final?
Special referees’ and arbitrators’ reports
Judgment
Jury trials
Cases where there is no evidence to support a verdict
Entry of judgment
Setting aside and ‘correcting’ judgments
Judgments in default
Setting aside on the grounds of fraud or new evidence
Correcting minor errors — the ‘slip rule’
Supplemental judgments
Chapter 20 Appeal and New Trial
Overview
Introduction
Types of Appeal
Avenues of Appeal
High Court
State, Federal Court and Northern Territory appellate courts
Interlocutory judgments and orders
Jurisdiction
Powers of the Appellate Court
Process
Institution of an appeal
Parties to an appeal
Leave to appeal
Notice of appeal
Sample grounds
Service
Amendment
Callover (setting the appeal down for hearing)
Cross-appeals, notices of contention and objections to competency
Cross-appeals
Notices of contention
Objections to competency
Court materials
Appeal record
Notices
Outlines of argument, written submissions, lists of authorities and chronologies
Extrinsic materials
Related Applications
Stay of execution of proceedings pending appeal
Security for costs
Substantive Basis on Which Appeals are Brought
Error of law
Judge wrongly exercised discretion
Judge’s findings of fact were wrong
Incorrect inferences drawn
Judge’s view taken of conflicting testimony
Inferences from uncontroverted facts
Fresh evidence sought to be tendered on an appeal
Further evidence arising after trial judgment — appeals by way of rehearing
New point arising after trial judgment — appeals by way of rehearing
New points and objections arising before trial judgment
Excessive or insufficient assessment of damages
Non-grounds of appeal
Jury grounds
Preparing an Appeal
Conducting an Appeal
New Trial
Striking Out, Want of Prosecution, Discontinuance and Abuse of Process
Costs
Settling an Appeal
Indemnity Certificates
Chapter 21 Costs
Overview
Introduction
General Rule
Costs awards where litigation has been funded by a third party
Costs awards against third parties
Costs awards against practitioners
Types of Costs Award
Problematic Winners
Party wins in the wrong court
Party ultimately wins, but loses on several issues
Complex Cases
Costs that do not Follow the Event
Public interest litigation
Impecunious parties
Other exceptions
Determining the Quantum of Costs
New South Wales position
Resolving disputes over costs awards
Security for Costs
Rules of Court
Appeal Costs
Chapter 22 Enforcement
Overview
Introduction
When is the Judgment Enforceable?
Equitable relief is not enforceable immediately
Conditional judgments
Stays
Limitation periods
Pre-Emptive Strikes by Judgment Creditors
Mareva/preservation of property orders
Attachment
Acting quickly on enforcement
Gathering Relevant Information
Instalment Orders
Writs or Warrants of Execution
Procedure for obtaining an order or warrant
Types of orders
Order for the seizure and sale of property
Order for recovery of land
Order for delivery of goods
Orders Against Third Parties
Attachment of debts/enforcement warrants for redirection of debts/garnishee orders
Attachment of earnings
Charging Orders and Stop Orders
Appointment of Receivers
Appointment of a receiver and priorities
Substituted Specific Performance
Contempt and Sequestration
Contempt
Attachment and committal
Sequestration/seizure of property
Enforcement of Interstate Judgments
Enforcement of Judgments Outside Australia
Other foreign judgments
Enforceability of Australian judgments abroad
Bankruptcy and Winding Up
Index