Civil Procedure: Service, Appearance, Parties, and Pleadings

Flashcards based on lecture transcripts covering service of process, appearance, joinder of parties, amendments, and pleadings for a civil procedure exam.

What is the foundational principle of jurisdiction regarding service according to Laurie v Carroll ($1958$)?

Jurisdiction is founded on service within the forum; a defendant who left the jurisdiction before the writ was issued cannot be reached by substituted service.

Under $r\,10.21$, what two actions must be taken to effect personal service if the person does not accept the document?

Put the copy down in their presence and tell them the nature of the document.

According to Ainsworth v Redd ($1990$), for which types of documents is personal service usually required?

Preliminary and secondary originating process, documents initiating contempt or attachment, injunctions, and where required by statute, rules, or court order.

What is the rebuttable presumption regarding service by post if the item is returned to the sender?

There is a rebuttable presumption that the document was NOT served.

How must a corporation be served under the primary method in the Corporations Act $2001$ (Cth) $s\,109X$?

By leaving it at, or posting it to, the company’s registered office; delivering it personally to a director who resides in Australia; or serving a liquidator or administrator.

What are the two requirements for obtaining an order for substituted service under $r\,10.14$?

$1$) Personal service is impracticable or too difficult after reasonable attempts, and $2$) the proposed method is likely to bring the proceedings to the defendant’s attention.

According to the Australian test in Voth v Manildra Flour Mills Pty Ltd ($1990$), what determines if a stay for forum non conveniens should be granted?

Whether the local court is a ‘clearly inappropriate forum’.

What is the time limit for entering an appearance in NSW under $r\,6.10$?

$28$ days after service.

Define the ‘Anshun estoppel’ as established in Port of Melbourne Authority v Anshun ($1981$).

It precludes a party from raising a claim or defense that it should reasonably have raised in earlier proceedings.

What is the ‘common-question / same-transaction test’ for joinder of parties under $r\,6.19$?

Parties may be joined where a common question of law or fact arises, or the relief claimed arises out of the same transaction or series of transactions.

How does a ‘set-off’ differ from a ‘counterclaim’ in terms of their outcome?

A set-off results in a single judgment (used as a shield); a counterclaim results in a separate judgment (used as a sword).

What did the High Court rule in Aon Risk Services Australia Ltd v ANU ($2009$) regarding the right to amend?

There is no unlimited right to amend on payment of costs; the court must consider case management, the overriding purpose, prejudice, and the explanation for delay.

Under $CPA\,s\,65$, what is the requirement for amending an originating process to correct a party's name after the limitation period has expired?

The mistake must not be misleading and must cause no reasonable doubt as to the identity of the party.

What is the ‘slip rule’ under $r\,36.17$?

A rule allowing the correction of clerical mistakes or errors from accidental slips or omissions in a judgment, order, or certificate at any time.

According to $r\,14.7$, what must a pleading contain and what must it exclude?

It must contain a summary of the material facts relied on, but not the evidence by which they are proved.

What was the core ruling in Banque Commerciale SA (en liq) v Akhil Holdings ($1990$) regarding the function of pleadings?

Pleadings define the issues and give notice; relief is confined to the pleaded case, and a party is bound by its pleadings.

Under $r\,15.1$, what is the function of particulars according to Bailey v Federal Commissioner of Taxation ($1977$)?

To define the issues, prevent surprise, and save expense by ensuring the party knows the case they have to meet.

What is the threshold for striking out a pleading under $r\,14.28$ according to General Steel Industries Inc v Commissioner for Railways (NSW) ($1964$)?

The power is used only in the clearest case where the pleading is ‘so obviously untenable that it cannot possibly succeed’ or is ‘manifestly groundless.’

What three matters must a defendant address to set aside a default judgment according to Cook v DA Manufacturing Co Pty Ltd ($2004$)?

$1$) A satisfactory explanation for the failure to defend; $2$) no unreasonable delay in applying; and $3$) a prima facie defense on the merits.

What is the threshold for summary judgment in the Federal Court under $s\,31A$ compared to the traditional NSW test?

The Federal Court threshold is ‘no reasonable prospect’ of success, which is a lower/different enquiry than the ‘certainty of outcome’ test in General Steel.