Law 217 - Civil Procedure Flashcards

Flashcards from Law 217 Lecture Notes on Civil Procedure

Name the four main sources of Civil Procedure rules in NSW.

Civil Procedure Act 2005 (NSW), Uniform Civil Procedure Rules 2005 (NSW), Court Acts and Rules, Practice Notes/Directions

What does Section 11 of the Civil Procedure Act concern?

Concerns how the court rules in each jurisdiction intersect with the UCPR (UCPR applies to extent of inconsistency).

How are Practice Notes/Directions issued?

Issued by the courts under s 16 of CPA (become statutory instruments to be tabled) OR through inherent power of the court issuing (in case of Supreme Court) in which they have no legislative power.

Where does the power to constitute a High Court come from?

s71 of the Constitution and is brought into existence by the High Court of Australia Act 1979 (Cth).

Where is the Court’s original jurisdiction conferred?

ss 30 and 40 of the Judiciary Act 1903 (Cth).

Where is its appellate jurisdiction conferred?

Part V of the Judiciary Act 1903 (Cth.).

Pursuant to what section are The High Court’s rules made by its justices?

s 48 of the High Court of Australia Act 1979 (Cth).

What NSW Act sets out the court’s constitution, powers, and administration?

The Supreme Court Act 1970 (NSW) s 23

What governs commencing, maintaining and enforcing civil claims for each court?

Each court has its own rules governing commencing, maintaining, and enforcing civil claims.

Define Inherent Power

An intrinsic power derived from royal prerogative and not legislation – the court has power to regulate its own proceedings and administration of justice in its jurisdiction.

What does Inherent Power derive from?

Derives from fact a number of courts were established by royal prerogative. It is the court’s right to regulate practice and procedures of parties to litigation in the court, exercised to prevent abuse or vexatious use of court time and procedure.

What does Statutory Power derive from?

Derives from fact some courts established by legislation- e.g Federal Court and Family Court. Empowered by statute only. Issues practice notes under statutory power thus they have quasi legislative force.

What does s 71 of the Australian Constitution state?

s 71 – there shall be ‘a Federal Supreme Court, to be called the High Court of Australia’ and such other courts as the Parliament creates

What does s 77 of the Australian Constitution detail regarding commonwealth power?

State courts may be vested with Commonwealth jurisdiction, but not the other way ‘round (s 77(iii)).

Define Procedural Law

The law that governs the conduct of proceedings before the court. “Adjectival”- allow subjective rights to be pursued and obtained.

Define Substantive Law

The law that governs/creates the rights/responsibilities of the parties, eg: contract law, tort law, etc.

What courts do Parts 3-9 of the CPA and the UCPR apply to?

Pursuant to Civil Procedure Act 2005 (NSW) (“CPA”) s 4 and Sch 1, Parts 3-9 of the CPA and the UCPR apply to civil proceedings in the Local, District, and Supreme Courts of NSW, The Dust Diseases Tribunal, The Industrial Relations Tribunal and Class 1-4 proceedings in the Land and Environment Court.

Define cause of action

The substantive legal issue on which the plaintiff relies (ie: breach of contract).

Define Forum

The place of hearing (i.e.: court or tribunal)

Define Appellate

Having to do with appeals.

Define Liquidated Debt

Where the dispute between parties can be quantified easily in a monetary sum

Name the two main Cross-Vesting Scheme Acts

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

What courts participate in theCross-vesting scheme?

Federal Court, Federal Circuit and Family Court of Australia (Division 1), Supreme Court of all states/territories, Family Court of WA.

How are courts vested with civil jurisdiction in the Cross-Vesting Scheme?

State supreme courts are vested with most civil jurisdiction of the Federal Court and the Federal Circuit Court and Family Court of Australia (Div 1). Federal Court and the Federal Circuit Court and Family Court of Australia (Div 1) are vested with civil jurisdiction of territory courts.

What is the balance between courts and the overall aim for cross vesting procedures?

balance between courts and also to stop forum shopping, the scheme allows transfer of proceedings in certain cases to a more appropriate court.

What is the jurisdictional limit of the Local Court?

Local Court Act 2007 (NSW) 29 Jurisdictional limit of [Local] Court (1) For the purposes of this Part, the jurisdictional limit of the Court is— (a) $100,000, when sitting in its General Division, and (b) $20,000, when sitting in its Small Claims Division. (2) However, the jurisdictional limit of the Court, when sitting in its General Division, in relation to a claim for damages arising from personal injury or death is $60,000.

What is the jurisdictional limit of the District Court?

$1,250,000

What is the 'Overriding purpose' of the Civil Procedure Act 2005 (NSW) s 56?

‘The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.’

What does Section 79(1) of the Judiciary Act 1903 (Cth) provide

Section 79(1) of the Judiciary Act 1903 (Cth) provides that the laws of each state and territory, including the laws relating to procedure, evidence and competency of witnesses shall be binding on all courts exercising Federal jurisdiction unless otherwise provided for in Commonwealth legislation.

What limitations are in place for an action founded on contract?

An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,

DefineAccrual

once your right to sue crystallises. Requires: 1. Necessary facts have occurred 2. A competent plaintiff to sue 3. A competent defendant to be sued

Define Discoverability

Objective person ought to know each of the following: A) injury has occurred B) Was the fault of the defendant C) The injury was sufficiently serious to warrant bringing an action.

List main grounds for extending limitation periods

Extending limitation period – just and reasonable ground (NSW, Tas, Vic).plaintiff ‘s awareness of material facts of a decisive nature (Qld) or of facts establishing the cause of action (WA).general power to extend a time stipulation in a statute (NT and SA).

What can PLAINTIFF do after limitation period has expired but before AMENDMENT of originating process?

amend the pleadings with leave of the court pursuant to s64(1)(b) if the effect of the amendment is: 1. To allow the plaintiff to continue to bring the action in their capacity 2. To correct the name of a party, where they are incorrectly named or to substitute a new party provided the court considers it is not misleading and does not cause reasonable doubt as to the identity of the person who is to be the party 3. To add a new cause of action seeking relief, provided the new cause of action stems from the same (or substantially the same) facts and circumstances known to the other party.

What is a LETTER OF DEMAND?

Often precedes commencement of proceedings – sets out the claim and seeks resolution before commencing proceedings.

What is the difference between a Cause vs Matter?

Causes have two or more parties to a dispute. A matter only has one party (ie may seek declaratory relief- in rem actions)

What is a WRIT?

main type of originating proceedings in causes of action involving factual disputes. Used in HC to commence where facts are in dispute.

What is a STATEMENT OF CLAIM?

the document setting out the cause of action – must raise cause of action here and not just in endorsement

What is a General INDORSEMENT / ENDORSEMENT

a general statement about the claim to be pleaded and the relief sought. Special: A statement of claim that is included inside the writ which pleads the cause of action (West Australia).

What is a MOTION

Originating process in limited situations more usually used to move the court for orders as an interlocutory step (after proceedings on foot).

Reasonable prospects of success is defined in…

Degiorgio v Dunn (No 2) [2005] NSWSC 3 at [16-28] and Momibo Pty Ltd v Adam (unreported, 31 August 2004). “Arguable”.

What is personal service?

Personal service involves handing the document directly to the person being served.

What procedures apply to the service of documents outside Australia?

UCPR Part 11 and 11A applies to service on a defendant outside of the jurisdiction. Unless it is a matter referred to in schedule 6 of the UCPR, you require leave of the court (see 11A(4)) to serve the originating process outside of Australia (UCPR 11.5). Service must be affected in accordance with the provisions of the Hague Convention (UCPR 11.4(2).

Define Standing

Legal right to bring a substantive cause of action

Define Legal Capacity

Also called “competence”. Part of legal personality. The ability to sue and be sued. People under disability (e.g. under age) need a tutor or guardian ad litem. Unincorporated businesses cannot be sued.

Define Doctrine of merger in judgment

The cause of action comes to an end and is extinguished in the settlement or judgment

Define Anschun estoppel

Extended form of estoppel where it precludes assertion of a claim or raising of fact or law when that should have been raised or adjudicated in the first set of proceedings

Karen is injured in an occupier’s liability claim. She seeks and obtains an award for damages for personal injury, including her physical and mental disability and all medical expenses. She had not had time off work except for 3 weeks initially. Now she finds her mental condition has deteriorated, and she is unable to work any longer in her chosen profession due to sequelae. What estoppel applies?

Karen seeks damages for mental disability. She will have to take a lesser paying job and suffer significant financial loss. Sue for negligent advice/breach of contract/breach of consumer law LSC - discipline

Define Counter Claim in NSW

The defendant may not only make a claim against the plaintiff but seek to join a third person or persons to the counterclaim. In New South Wales, we refer to counter claims as cross claims. Claims other than monetary claims can be made the subject of a counterclaim.

Define Set Off

A liquidated sum that the defendant is entitled to assert against the plaintiff as a debt owing in a dispute with the plaintiff. Acts as a partial defence.

DefineBullock Order

plaintiff pay the costs of the successful defendant but adds those costs as a disbursement of their own costs against the unsuccessful defendant

Define Sanderson orders

order made against the unsuccessful defendant directly to pay the successful defendant's costs as well as the plaintiff's costs.

Define Res Judicata

the plea of res judicata applies where a court has given judgment in relation to matters that are the subject of litigation. It is the cause of action.

Define Intervener

A non- party whose interests would be affected by a decision made in the hearing. They join as an intervener and become a party to the litigation.

Define Cause of action estoppel

precludes an assertion of a cause of action (a right, remedy or relief) in a subsequent set of proceedings which was asserted in proceedings previously and adjudicated.

Define Issue estoppel

Raising an issue of fact or law for recontest in subsequent proceedings that was previously determined.

What are the key components of Representative proceedings?

A “common interest and common grievance” and the standing as representative is sufficient interest to bring action against the defendant themselves – s158(1) CPA.

How would you describe discovery?

vital stage in litigation and trial preparation

How would you describe discovery?

vital stage in litigation and trial preparation

You want to identify the name of the person who owns and operates premises where your client was injured. This owner may become a party to the proceedings. What type of discovery would you use?

Application for preliminary discovery – UCPR 5.2

You want to require certain documents to be produced to the court at trial so you can tender these as evidence in your case. What type of discovery would you use?

Notice to Produce at Hearing UCPR 21.10

You want to have a local council produce their records regarding complaints made by the defendant. The local council is not a party to the proceedings. What type of discovery would you use?

Subpoena for production – UCPR 33.2

You want to require the second defendant in a matter to disclose what contractual documents they have regarding the issue in dispute. What type of discovery would you use?

Order for discovery (list of documents) UCPR 21.2 and 21.3

Allegations of breach of contract are made against you. Your client insists there was no contract and the statement of claim is vague. How do you get more information?

Request for further and better particulars. UCPR 15.1.

What is does Notice to Produce (CPR21.10 and 34.1) consist of?

made between the parties to produce for inspection anything referred to in the SOC or witness statements and anything relevant to a fact in issue.

What does Interrogatories (CPR Part 22) consist of?

Order to administer questions that require answers. Must relate to an issue in dispute. Must be verified by affidavit. Answers can be tendered.

What does Subpoena for production (CPR Part 33) consist of?

Served usually on other parties requiring production of documents and /or attendance at court to give evidence. Documents can go to credibility and do not have to be strictly relating to a matter in issue.

What are the key Lists of documents (CPR 21.3): requirements?

Requirements set out in rule: Part A: Documents in possession of party B Part B: Documents no longer in possession of party B and have not been within last 6 months prior to commencement

What is the RELEVANCE of rule 21.1(2) consist of

a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

What is the main purpose of further and better particulars?

refine issues in dispute, obtain admissions, and identify areas for further discovery.

Define the legal use of Privilege

substantive law basis to object to the adducing of evidence or the production and inspection of documentation or answering interrogatories.

List a few different types of privilege

legal professional religious confessions,self incrimination , sexual assault, journalistic and public interest immunity.

Name the purposes of Interlocutory applications

Interlocutory applications can be made at any stage of the proceedings to manage/timetable a matter, preserve the status quo, have orders made about access to and preservation of evidence, or seek compliance with previous orders.

How will interlocutory court orders be made?

made either by motion, summons or application

What are Interlocutory applications in nature?

applications are discretionary in nature and have well established principles of common law that guide the exercise of the discretion.

What is the key purposed of injunctions?

Injunctions are to preserve the subject matter of a dispute and to maintain the status quo pending final determination of the parties’ rights

Which courts have inherent power?

Supreme Courts have inherent powers as courts of common law. Federal Court, Federal Circuit and Family Court, County Courts, District Court and Local Courts have only powers that their legislative instruments confer on them

Who hears what in the Supreme Court?

Registrars determine applications made before trial pertaining to procedural matters, like extensions of time for the filing of documents, interrogatories and subpoenas. Duty/List/Trial Judge HEars urgent applications for injunctions, freezing orders, appointment of receivers and urgent remedies, vacation of hearing date orders. Expedition/List Judge – Sits in Equity. Matters for expedition and injunctive relief for preparation of trial.

Who hears what in the District Court?

Registrars handle most of the District Court’s interlocutory matters (subject to conditions). Some matters must be handled by Civil List judges- e.g ex parte applications like freezing orders, search orders etc.

Provide the test for a plaintiff to secure such an injunction

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

key concepts for Default and Summary Judgment

explain the procedural process for seeking default judgment and the documentary proof required to achieve this explain when and how default judgment may be set aside and the cost implications of this explain when summary judgment may be applicable

key concepts for Settlement and discontinuance of litigation

understand the effect of settlement on proceedings when discontinuing proceedings may be appropriate and the procedure for doing this as well as costs implications understand and be able to explain the legal effect of an offer of compromise and a calderbank letter when judgment is entered What is the difference between an offer of compromise and a calderbank letter?

What is entail for OFFERS OF COMPROMISE?

offer is plus costs specified or that the costs will be paid as agreed or assessed can incorporate the terms of an offer into judgment open for 28 days (20.26(5(a) if made at least two months before trial.

What are the key differences for a CALDERBANK LETTER vs OFFERS OF COMPROMISE?

Can be made at any stage, The earlier the better. More flexible than the rules and offers of compromise/paying into court. Can be inclusive of costs

communications titled “without prejudice” are always…

admissible as evidence unless the consent of both parties to the communication is obtained. This form of privilege is afforded to without prejudice communication as a matter of public policy, as it allows parties to explore resolution without fear that such disclosure or communication will later be used in evidence against them.

What does Discontinuance r12.1 involve?

allows a plaintiff to terminate proceedings. Requires leave of the court or consent of other party.

When can Litigants settle?

You cannot settle a case if you have not determined the issues in dispute, quantum and prospects of outcome. 95% of cases in Australia settle.

Describe a civil jury

civil juries comprise 4 people. A verdict is reached by deliberation on balance of probabilities.

When is a referee used within a hearing?

referee’s expertise can assist. Can be used at any stage of the hearing.

are Arbitrators determinations final?

Their determination is final and an award of the court CPA s 40 unless a party applies for rehearing.

Describe “Hot tubbing” Concurrent expert evidence

Expert discusses/debate the real issues in dispute. Removes the adversarial nature of expert evidence and partisanship, helping court to arrive at clear evidence on facts

How would you prepare for a “Hot tubbing” Concurrent expert evidence with a pre trial order

Usually pre-trial order they confer together without lawyers to give joint report narrowing what they agree and disagree on with short reasons on disagreement

What is the key structure of a High Court hearing?

hearing involved up to seven justices, who listen to oral and written submissions before deliberating and writing individual or joint judgments.

When does costs follow the event apply?

Costs follow the event

What are the key differences in party party costs and indemnity costs?

costs agreed or assessed the costs that are payable to the other side on a costs order (not solicitor client costs).Indemnity costs are solicitor/client costs that can be ordered pursuant to UCPR 42.5.

When can courts order costs orders against legal practitioners personally?

serious delay, neglect, incompetence or misconduct by a practitioner.certification of reasonable prospects of success – Schedule 2 (5) Legal Profession Uniform Law Application Act 2014 (NSW).

When can there be Costs penalties within Jursidiction?

if the party commences in the wrong jurisdiction (monetary or otherwise),

In Enforcement, the nature of the defendant influences?

The nature of the defendant and assets/insurance drives what form of enforcement you will seek.

Enforcement - The nature of the defendant and assets/insurance drives the form of enforcement, what key information do you check about the defendant?

Check PPSR and LTO for property held.

When is Contempt order (arrest) used

Defendant leaving jurisdiction