Civil Procedure Flashcards
Can parties be joined together in proceedings?
- r 6.19 - Per rule 6.19 UCPR either party may join
- If: if separate proceeding would give rise to a common question of law or fact and all rights of relief claimed arise out of a series of transactions,
- or if the court gives leave.
Practice Note - CL 6 - Directions Hearing
- early examination of the likelihood of a Cross-Claim or joinder of other parties, and
- section 56 of the CPA to facilitate the just, quick and cheap resolution of proceedings;
- court should have regard to section 57 and the objects of case management
Where pleadings are unintelligible/embarrassing – what options are there for oppossing counsel?
Within Rule 14.28 UCPR - the option for strike out exists where at any stage of the proceedings the whole or any part of the proceedings may be struck out where the pleadings
(a) discloses no reasonable cause of action,
(b) tendency to cause prejudice, embarrassment or delay or is
(c) otherwise and abuse of process of the court;
Pleadings per r 15.10 must give opposite party the particulars so as to identify the claim, defence or any other matter;
Authority: QLD v JL Holdings - to identify issues in contest that arise, for the purpose that the parties can prepare to meet them.
Can a pleadings be struck out entirely or just in part?
Rule 14.28 gives the option for strike out exists where at any stage of the proceedings the whole or any part of the proceedings may be struck out where the pleadings (a) discloses no reasonable cause of action, (b) tendency to cause prejudice, embarrassment or delay or is (c) otherwise and abuse of process of the court.
Can a matter be heard by a jury?
Yes it can – see R 29.2 UCPR provided it is not a defamation matter.
Application made by Notice of Motion.
There are application requirements for both defendant and plaintiff
Explain what a Mareva Injucntion or Freezing Order is…
Freezing order is contained within R 25.11 UCPR
- for purpose of preventing frustration or inhibition of a judgement where there is a danger of judgement will be unsatisfied.
- per r 25.13 that the respondent need not be a party to the proceedings
- Orderer to be served should be endorsed with a notice which meets the requirements of UCPR rule 40.7.
See Practice Note: SC Gen 14 –
Freezing Orders.
- This Practice Note supplements Division 2 of Part 25 of the Uniform Civil Procedure Rules 2005 (UCPR) relating to freezing orders (also known as ‘Mareva orders’ after MarevaCompaniaNaviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd’s Rep 509, or ‘asset preservation orders’).
- This Practice Note addresses (among other things) the Court’s usual practice relating to the making of a freezing order and the usual terms of such an order. While a standard practice has benefits, this Practice Note and the example form of order annexed to it do not, and cannot, limit the judicial discretion to make such order as is appropriate in the circumstances of the particular case.
- Words and expressions in this Practice Note that are defined in UCPR rule 25.10 have the meanings given to them in that rule.
- An example form of ex parte freezing order is annexed to this Practice Note. The example form may be adapted to meet the circumstances of the particular case. It may be adapted for an inter partes freezing order as indicated in the footnotes to the example form (the footnotes and references to footnotes should not form part of the order as made). The example form contains provisions aimed at achieving the permissible objectives of the order consistently with the proper protection of the respondent and third parties.
- A freezing order should be viewed as an extraordinary interim remedy because it can restrict the right to deal with assets even before judgment, and is commonly granted ex parte.
- The respondent is often the person said to be liable on a substantive cause of action of the applicant. However, the respondent may also be a third party, in the sense of a person who has possession, custody or control, or even ownership, of assets which he or she may be obliged ultimately to disgorge to help satisfy a judgment against another person. Subrule 5(5) addresses the minimum requirements that must ordinarily be satisfied on an application for a freezing order against such a third party before the discretion is enlivened. The third party will not necessarily be a party to the substantive proceeding, (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380) but will be a respondent to the application for the freezing or ancillary order. Where a freezing order against a third party seeks only to freeze the assets of another person in the third party’s possession, custody or control (but not ownership), the example form will require adaptation. In particular, the references to ‘your assets’ and ‘in your name’ should be changed to refer to the other person’s assets or name (e.g. ‘John Smith’s assets’, ‘in John Smith’s name’).
- A freezing or ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets (such as the amounts standing to the credit of identified bank accounts).
- The duration of an ex parte freezing order should be limited to a period terminating on the return day of the motion, which should be as early as practicable (usually not more than a day or two) after the order is made, when the respondent will have the opportunity to be heard. The applicant will then bear the onus of satisfying the Court that the order should be continued or renewed.
- A freezing order should reserve liberty for the respondent to apply on short notice. An application by the respondent to discharge or vary a freezing order will normally be treated by the Court as urgent.
- The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs. Sometimes it may not be possible to satisfy this principle (for example, an employer may discover that an employee has been making fraudulent misappropriations, but does not know how much has been misappropriated at the time of the discovery and at the time of the approach to the Court).
- The order should, where appropriate, exclude dealings by the respondent with its assets for legitimate purposes, in particular:
(a) payment of ordinary living expenses;
(b) payment of reasonable legal expenses;
(c) dealings and dispositions in the ordinary and proper course of the respondent’s business, including paying business expenses bona fide and properly incurred; and
(d) dealings and dispositions in the discharge of obligations bona fide and properly incurred under a contract entered into before the order was made. - Where a freezing order extends to assets outside Australia, the order should provide for the protection of persons outside Australia and third parties. Such provisions are included in the example form of freezing order.
- The Court may make ancillary orders. The most common example of an ancillary order is an order for disclosure of assets. The annexed example form provides for such an order and for the privilege against self-incrimination.
- The rules of court confirm that certain restrictions expressed in The Siskina [1979] AC 210 do not apply in this jurisdiction. First, the Court may make a freezing order before a cause of action has accrued (a ‘prospective’ cause of action). Secondly, the Court may make a free-standing freezing order in aid of foreign proceedings in prescribed circumstances. Thirdly, where there are assets in Australia, service out of Australia is permitted under a new ‘long arm’ service rule.
- As a condition of the making of a freezing order, the Court will normally require appropriate undertakings by the applicant to the Court, including the usual undertaking as to damages.
- If it is demonstrated that the applicant has or may have insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages, the applicant may be required to support the undertaking by providing security. There is provision for such security in the example form of freezing order.
- An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia.
- The affidavits relied on in support of an application for a freezing or ancillary order should, if possible, address the following:
(a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action:
(i) the basis of the claim for substantive relief;
(ii) the amount of the claim; and
(iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence;
(b) the nature and value of the respondent’s assets, so far as they are known to the applicant, within and outside Australia;
(c) the matters referred to in UCPR rule 25.14; and
(d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order, and how that person may be affected by it.
Can an order for security for costs be made over a plaintiff bringing a claim?
Rule 42.21 UCPR there a provisions for the court taking security over the plaintiff’s assets to secure costs. Note that this is over the plaintiff – not the defendant.
Generally speaking the court may order security for the defendants costs as it sees fit but will consider the matters within 1A such as – prospects of success, genuineness of proceedings, impecuniosity of the plaintiff, etc..
Pratice Note SC Gen 17
What is discovery?
[2-2210] Discovery and inspection during proceedings
In general, discovery (also known as disclosure) is ordered after the close of pleadings, so that the issues have been defined, but before the parties have exchanged evidence.
However, in the Equity Division (including the Commercial List but excluding the Commercial Arbitration List), Practice Note SC Eq 11 now provides:
Disclosure
4
The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.
5
There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.
6
Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out:
the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;
the classes of documents in respect of which disclosure is sought;
and the likely cost of such disclosure.
Costs
7
The Court may impose a limit on the amount of recoverable costs in respect of disclosure.
The practice note guides but does not govern the discovery process. While it lists conditions that must be satisfied before the court will order disclosure, it does not list conditions which are sufficient to obtain disclosure. The court still retains a discretion to require or limit discovery under UCPR r 21. That discretion must be exercised having regard to ss 56 and 57 of the CPA
What are the types of discovery?
Generally speaking the obligations are within Rule 21 of UCPR. There are different types of discovery:
- Rule 21 deals with documents
- Rule 5 – Preliminary Discovery – ie before trial
- Rule 22 – discover of facts through interrogatories
- Rule 38 – discovery in aid of enforcement
- Rule 23 – medical examinations and inspection of property
- Rue 34.1 – Notice to produce
Explain the principles behind Preliminary Discovery…
See - Rule 5 – UCPR Preliminary Discovery – ie before trial
[2-2300] Preliminary discovery to assess prospects
Rule 5.3 of the UCPR, which is based on FCR O 15A r 6, and was not formerly available in this State, enables an applicant who believes he or she may have a cause of action against another person to require that other person to give discovery and produce for inspection relevant documents to assist in assessing whether or not to commence proceedings against that other person. See, RinRim Pty Limited v Deutsche Australia Ltd [2013] NSWSC 1762 at [34]–[49].
To obtain such an order, it must appear to the court, pursuant to r 5.3(1), that:
(a)
the applicant may be entitled to make a claim for relief (as defined in CPA s 3) against another person but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against such person, and
(b)
such person may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c)
inspection of such a document would assist the applicant to make the decision concerned.
Unless the court otherwise orders, the application must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought. The application, together with the affidavit, must be served personally on the person to whom it is addressed: r 5.3(3). In the case of a corporation, that person may be any officer or former officer of the corporation: r 5.3(2).
For a discussion of relevant principles generally and in relation to Defamation, see Hatfield v TCN Channel Nine Pty Ltd(2010) 77 NSWLR 506 (CA).
Cases decided under the Federal Court Rules would appear to be relevant to applications under this rule. Note in particular that an applicant does not need to establish a prima facie case amongst the prospective defendant, but must show more than the mere possibility of a claim: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 (FCA) at [24]; Airservices Australia v Transfield Pty Ltd (1999) 164 ALR 330 at (FCA) [5]; Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [39].
What is an Anton Pillar Order?
UCPR - 25.18 - 25.24
SC Gen 13 – Practice Note – Anton Pillar Order
- Ordinarily, a search order is made ex parte and compels the respondent to permit persons specified in the order (‘search party’) to enter premises and to search for, inspect, copy and remove the things described in the order. The order is designed to preserve important evidence pending the hearing and determination of the applicant’s claim in a proceeding brought or to be brought by the applicant against the respondent or against another person. The order is an extraordinary remedy in that it is intrusive, potentially disruptive, and made ex parte and prior to judgment.
Rule 21.5 – documents are to be made available and where there are additional documents discovered then rule 21.6 should be a obliged.
[2-2240] Procedure
The party subject to the order must serve on the other party a list of documents in its “possession” (other than excluded documents, the meaning of which see r 21.1(1)) which complies with r 21.3(2). The time allowed for serving such a list is normally 28 days, but this time may be varied by the order: r 21.3(3). Note that “possession” is defined in s 3 of the CPA to include “custody and power”. The list of documents must be verified in accordance with r 21.4.
[2-2220] Discovery limited
When making an order for discovery, there is no power to make an order for general discovery (that is, all documents which may relate directly or indirectly to the matters in issue), but the court’s order must specify the class or classes of documents of which discovery is to be given: r 21.2(1)(a). The UCPR envisage that discovery be limited to documents relating to particular issues or subject matters, or limited to a particular period. Any such class of documents must not be specified in more general terms than the court considers to be justified in the circumstances: r 21.2(2).
A class of documents may be specified by relevance to one or more facts in issue, by description of the nature of the documents, the period within which they were brought into existence, or in such other manner as the court considers appropriate in the circumstances: r 21.2(3).
Where there is a large number of documents within a class, the court may order that discovery be given of one or more samples (selected in such manner as the court may specify): r 21.2(1)(b).
Explain what an expert report is, and what rules apply?
UCPR rules – 31.19, 31.27-36
Counsel must seek directions before calling an expert witness per 31.19 at a directions or case management hearing. Unless the court otherwise directs B may not adduce evidence unless directions are sort.
Expert evidence must be given in chief by tendering an expert report – 31.27. The report should must be served per 31.28 no later than 28 days before the date of the hearing.
Should align and be consistent with the overriding purpose within section 56 of CPA - overidding purpose.
PRACTICE NOTE SC Gen 11
Joint Conferences of Expert Witnesses
Commencement
1. This Practice Note commences 17 August 2005.
Application
2. This Practice Note applies to all civil appeals and proceedings before the Court. This Practice Note does not apply to proceedings in the Court of Criminal Appeal or criminal proceedings in the Common Law Division.
Definitions
3. In this Practice Note:
Code means Schedule 7 to the Uniform Civil Procedure Rules 2005
SCR means the Supreme Court Rules 1970
UCPR means the Uniform Civil Procedure Rules 2005
Introduction
4. The objective of this Practice Note is to facilitate compliance with any directions of the Court given pursuant to Division 2 of Part 31 of the UCPR.
Objectives of joint conferences
5. The objectives of such directions for a joint conference of experts include the following:
the just, quick and cost effective disposal of the proceedings;
the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;
the consequential shortening of the trial and enhanced prospects of settlement;
apprising the Court of the issues for determination;
binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and
avoiding or reducing the need for experts to attend court to give evidence.
Preparing for a conference
6. The parties should agree on the following matters:
the experts to attend;
the questions to be answered; and
the materials to be placed before the experts.
- The experts to attend should be those specified in the Court’s order. If none are so specified, the parties should arrange for experts to attend who have expertise pertinent to the questions to be asked. Separate conferences may be required between experts in different specialities in relation to different issues arising in the case.
- The questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration.
- The questions to be answered should be framed to resolve an issue or issues in the proceedings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.
- The materials to be provided to each of the participating experts should include:
the Code;
this Practice Note;
an agreed chronology, if appropriate;
relevant witness statements or, preferably, a joint statement of the assumptions to be made by the experts, including any competing assumptions to be made by them in the alternative (which should be specified clearly as such);
copies of all expert opinions already exchanged between the parties and all other expert opinions and reports upon which a party intends to rely; and
such records and other documents as may be agreed between the parties or ordered by the Court.
- The participating experts should each be provided, in advance, with the questions and materials referred to in paragraphs 8, 9 and 10.
Convening a conference
12. Subject to any directions given by the Court concerning the range of dates for the convening of the conference, the parties should communicate amongst themselves to fix a mutually convenient date, time and place for the conference.
- The conference should take the form of a personal meeting. Alternatively the participants may choose to hold the conference by teleconference, videolink or similar means if a personal meeting is not practicable.
- The experts should be given a reasonable opportunity to prepare for the conference by ensuring that before the conference the experts have:
an opportunity to seek clarification from the instructing lawyers or the Court concerning any question put to them, and
access to any additional materials which the parties are able to provide and which the experts consider to be relevant.
- In order to enable the experts to have a reasonable opportunity to prepare for the occasion, the conference should not take place until the expiration of at least 14 days following the provision of the materials referred to in paragraph 11.
The role of experts at a conference
16. The experts should provide their respective opinions in response to the questions asked based on the witness statements or assumptions provided. Where alternative assumptions are provided the experts should provide their respective opinions on the alternative assumptions.
- The experts may specify in their report other questions which they believe it would be useful for them to consider.
- Pursuant to paragraph 4(2) of the Code, an expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement. An expert should not assume the role of advocate for any party during the course of discussions at the joint conference. If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts on that matter.
- The experts should accept as fact the matters stated in witness statements or assumptions submitted to them. It is not their role to decide any disputed question of fact or the credibility of any witness. Where there are competing assumptions to be made in the alternative, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer.
Conduct of the conference
20. The conference should be conducted in a manner which is flexible, free from undue complexity (so far as is practicable) and fair to all parties.
- The participating experts may appoint one of their number as a chairperson. If one of them so requests and the parties agree or the court orders, some other person may be appointed to act as chairperson.
- Secretarial or administrative assistance should be provided by the parties if so requested by the experts.
- If the participating experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of matters agreed, matters not agreed and reasons for disagreement.
- The conference may be adjourned and reconvened as may be thought necessary by those participating.
Joint report
25. Pursuant to UCPR Rule 31.25 and paragraph 4 of the Code, the report should specify matters agreed and matters not agreed and the reasons for non agreement.
- The joint report should, if possible, be signed by all participating experts immediately at the conclusion of the conference and, otherwise, as soon as practicable thereafter.
- Prior to signing of a joint report, the participating experts should not seek advice or guidance from the parties or their legal representatives except as provided for in this Practice Note. Thereafter, the experts may provide a copy of the report to a party or his or her legal representative and may communicate what transpired at the meeting in detail if they wish.
- The report of the joint conference should be composed by the experts and not the representatives of the parties. The report should be set out in numbered paragraphs and should be divided into the following sections:
statement of agreed opinion in respect of each matter calling for report;
statement of matters not agreed between experts with short reasons why agreement has not been reached;
statement in respect of which no opinions could be given e.g. issues involving credibility of testimony;
any suggestion by the participating experts as to any other matter which they believe could usefully be submitted to them for their opinion; and
disclosure of any circumstances by reason of which an expert may be unable to give impartial consideration to the matter.
- The joint report, when signed by all participating experts, should be forwarded to the Court.
Role of legal representatives
30. Legal representatives who attend a conference pursuant to an order of the Court or who are approached for advice or guidance by a participating expert should respond jointly and not individually, unless authorised to do so by the legal representatives for all other parties with an interest in the conference.
- Such advice or guidance may be provided by:
responding to any questions in relation to the legal process applicable to the case;
identifying relevant documents;
providing further materials on request; and
correcting any misapprehensions of fact or any misunderstanding concerning the conference process.
- The legal representatives of the parties should perform any other role the Court may direct.
Provision of information
33. The legal representatives of the parties should inform the associate of the judge who directed the conference of the date of a conference when arranged, the names of the participating experts and the questions submitted.
- It is not intended that the joint report provided to the Court or that information provided to the Court concerning a conference will be evidence in the proceedings unless admitted into evidence in the ordinary way (that is, by consent or by tender subject to the SCR and the rules of evidence).
Further directions
35. Pursuant to UCPR Rule 31.25(2), an expert directed to confer may apply to the Court for further directions. That may be done, at the expert’s election, by arrangement with the associate of the judge who directed the conference. A party may also apply for further directions in relation to a directed conference.
What is the process of obtaining and Interlocultory Injunctions?
UCPR - 25
What is the process of obataining an Ex Parte Injunction?
- Jurisdiction:
SC – s 66/ PN SC EQ 8
DC – 140
Interlocutory – UCPR – 25.2 - Ex Parte
- Procedure –
SOC & NOM/Summons - 6.2
Note: If trial has commenced then filling a motion via Pt 18 UCPR is appropriate
Note: If not in a position to file statement of claim – then file short summons with notice of motion with affidavit.
with affidavit – s 75 EA – Hearsay does not apply
Undertaking to lodge proceedings within 48 hours
- Test: American cyanide/ABC - special case to be tried; Castlemaine Toohey’s – balance of convenience
- Ex-Parte
Ethical Bar Rules:
BR – 27; Paramount duty
AA Sch 2 – Reasonable prospect of success & BR 60
Clyne – Alleging Facts – BR 64
Full Disclosure: Thomas Edison v Bullock, Arthur Anderson v Email Furniture
Explain the process of obtaining expert evidence..
Is it hearsay or non-hearsay?
Expert Evidence
- Relevance – s 55
- Hearsay Objections – Expert Opinion - EA 79
- Expert Evidence- UCPR/SC EQ 5
- UCPR – 31.19, 31.27-36 should be followed and PN SC EQ 5
- Code of Conduct for Experts within Schedule 7. See also SC EQ5 practice notes.
- Counsel must seek directions before calling an expert witness per 31.19 at a directions or case management hearing. Unless the court otherwise directs B may not adduce evidence unless directions are sort.
- Expert evidence must be given in chief by tendering an expert report – 31.27. The report should must be served per 31.28 no later than 28 days before the date of the hearing.
- Align with the overriding purpose within section 56 of CPA.
- Format Expert Report -
Case:
Dasreef - Expert opinon s 79 EA must be based on specialised knowledge based on the person’s training, study or experience - assumptions are not enough
Clyne – alleging facts in a document based on proper basis – BR 64
What is process of Summary Judgement?
Summary Judgement
Note the differences between 13.1 and 13.4 for the plaintiff and defence.
- 4 is the catch all where 13.1 is the option where damages are the only issue for the plaintiff
- 1 – Only issue is damages – Plaintiff; can be made on on before defendant has filed defence
- 4 – Frivolous or Vexatious claim- defendant option
Application -Pt 18 Motions
Evidence – of facts made by affidavit – 35.3; hearsay does not apply via s 75
Timing - 28 days of service – 14.3
