Civil Procedure Notes

Civil Procedure

Civil procedure governs litigation by private parties (individuals, corporations). It contrasts with criminal procedure where the state prosecutes.

Procedural vs. Substantive Law

The distinction between procedural and substantive law is crucial, especially regarding retrospective legislation.

Key Case: John Pfeiffer Pty Ltd v Rogerson

This case highlights the difficulty in defining a unifying principle for distinguishing between substance and procedure.

  • Substantive Law: Governed by different jurisdictions than procedural law.

  • Procedural Law: Concerns where and how a claim is heard.

Principles Guiding the Distinction

  1. Litigants must accept the court as they find it.

    • Plaintiffs can't demand the forum establish tribunals or procedures not contemplated by its statutes.

  2. Matters affecting the existence, extent, or enforceability of rights are substantive.

Mason CJ's Formulation in McKain

Rules governing the mode or conduct of court proceedings are procedural; all others are substantive.

Implications

  • Limitation Periods: Considered substantive, governed by the lex loci delicti (law of the place where the wrongdoing occurred).

  • Damages: Questions about the kinds or amounts of recoverable damages are substantive, also governed by the lex loci delicti.

Alternative Dispute Resolution (ADR)

ADR encompasses methods of resolving civil disputes outside court proceedings.

Common Forms of ADR

  • Negotiation

  • Mediation

  • Conciliation

  • Arbitration

Philosophy of ADR

Resolving disputes without judicial judgment.

ADR Order of Formality

  • Ascending from Negotiation to Arbitration

ADR Vulnerabilities

  • Vulnerable parties subject to lack of procedural protections.

  • Prevents future parties from learning from past mistakes due to lack of precedent and confidentiality.

  • Non-determinative, can fail to resolve disputes leading to MORE time, MORE money, MORE resources.

Substance vs Procedure

The substance of the claim concerns issues in dispute, differentiated from procedural law.

Negotiation

  • Common and versatile in every dispute; rarely involves a third party.

  • Aimed at settling disputes or smaller goals (e.g., discovery parameters).

  • Settlements verified by a deed of settlement.

Negotiation Methods

  • Conferences

  • Formal correspondence

  • Informal discussion

  • Electronic communications

Calderbank Offers

Less formal than Offers of Compromise but recognized by courts for cost protection.

  • More flexible than Offers of Compromise.

Good Faith Negotiation

Case: FMG Pilbara Pty Ltd v Cox

Addressed legislative obligations under s 31 of the Native Title Act 1993 (Cth).

  • Requirement for good faith focuses on the quality of a party’s conduct (assessed by actions/inactions during negotiations) and their state of mind.

  • Doesn't dictate negotiation content/manner, but discussions must aim to obtain agreement in good faith.

##### Native Title Act 1993 Considerations From an ADR perspective, a Calderbank offer is like any written letter of offer, but differing legislation and case law can impact costs. - S 31 requires negotiation, focusing on the quality of a party’s conduct and their state of mind during negotiations.