civil procedure and ADR's

Week 1: Introduction to Civil Procedure – Part 1

Overview of the Course

  • Unit: LAWS201 Civil Procedure & Alternative Dispute Resolution

  • **Instructor:**David Spencer

  • Contact: (03) 9953.3678 | david.spencer@acu.edu.au

Intended Learning Outcomes

  1. Critically evaluate the laws and procedures for resolving civil disputes.

  2. Understand and analyze pleadings and related documents used in civil proceedings.

  3. Apply laws to real situations, advising clients on their rights and procedural options.

Assessment Overview

  • Tutorial Participation: 20%

  • Legal Problem (Written Response): 30%

  • Examination: 50%

  • Textbooks:

    • Australian Civil Procedure by Bernard Cairns (12th ed, 2020)

    • Civil Procedure Act 2010 (Vic)

    • Supreme Court (General Civil Procedure) Rules 2015 (Vic)

  • Note: Read the Unit Outline thoroughly.

  • Tutorials Begin: Week 1

What is Civil Procedure?

  • Laws governing court proceedings in civil jurisdiction.

  • Methods for enforcing or challenging rights and obligations.

  • Today includes pre-litigation dispute resolution and management of civil matters entering the court system.

Sources of Civil Procedure

Inherent Jurisdiction

  • Originates from Royal Prerogative - customary authority.

  • Constitution Act 1975 (Vic) sect. 85 includes inherent powers to hear civil proceedings of unlimited value.

  • Five Purposes of Inherent Jurisdiction:

    • Convenience and fairness in legal proceedings.

    • Preventing steps that render judicial proceedings ineffective.

    • Preventing abuse of process.

    • Aid superior courts.

    • Control of inferior courts/tribunals.

Implied Jurisdiction

  • Implied by statute; e.g., Commonwealth Constitution Act 1901 sect. 75, 76 - original jurisdiction of High Court.

  • Supreme Courts possess both inherent (original jurisdiction) and implied jurisdiction (appeals).

Steps in Civil Procedure

  1. Analyze cost vs. benefit and client instructions.

  2. Identify cause of action.

  3. Determine jurisdiction.

  4. Prepare originating process (pleadings).

  5. Join parties as necessary.

  6. Conduct service of process.

  7. Default judgment for non-appearance.

  8. Prepare defense and reply.

  9. Address counterclaims or cross-claims.

  10. Conduct discovery and interrogatories.

  11. Trial - present evidence, verdict, and judgment.

  12. Handle disposal, discontinuance, and appeals.

  13. Address costs.

  14. Enforce judgments.

Costs vs. Benefits

  • Costs of court can be prohibitive; $3,000 to $25,000 per day for solicitors and barristers, respectively.

  • Family law matters typically cost around $100,000, while defamation cases can reach $300,000 or more.

Terminology in Civil Procedure

  • Original Jurisdiction: 1st instance

  • Plaintiff vs. Defendant

  • Applications: Applicant vs. Respondent

  • Appeals: Appellant vs. Respondent

Week 1: Introduction to Civil Procedure – Part 2

Territorial and Subject Matter Jurisdiction

  • Jurisdiction:

    • Determining if the court has authority over the defendant and the subject matter.

Territorial Jurisdiction (In Personam)

  • Court must have jurisdiction over the defendant’s presence or voluntary submission to that jurisdiction.

Example Case: Laurie v Carroll (1958) 98 CLR 310

  • Details about a theatrical performance leading to legal proceedings for breach of contract involving jurisdiction issues.

Civil Procedure Act 2010 (Vic)

Overarching Purpose

  • Facilitate just, efficient, timely, and cost-effective dispute resolution through determination by court or agreement of parties.

Key Sections

  • Compliance by lawyers and clients with overarching purpose and duties to the court.

Week 2: Case Management & ADR

Adversarial vs. Principled Negotiation

  1. Adversarial Negotiation: Traditional approach focused on winning.

  2. Principled Negotiation: Interest-based; aims at collaborative resolution.

Mediation Process Elements

  • Empowerment, impartiality, confidentiality, and voluntariness.

Common ADR Processes

  • Negotiation, mediation, arbitration, and expert determination.

Week 5: Defining Questions for Trial

Pleading Rules

  • Pleadings establish facts, claims, and defenses. Include statement of claim, defense, and counterclaims.

  • Supreme Court (General Civil Procedure) Rules 2015 outlines content and rules for structuring pleadings, including numbered paragraphs and specificity.

Striking Out Pleadings

  • The court may strike out any part of a claim or defense that does not disclose a cause of action or is otherwise inappropriate.

Use of Affidavits

  • Affidavits serve as evidence in civil proceedings, often required in interlocutory applications or for corroborating circumstances.