Civil Procedure Flashcards
Reasonable Prospects of Success
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Form of Commencement: UCPR r6.2 - 6.17
- SOC or S. OP must be served on each defendant: r6.2(3) if P commences by SoC then Part 14 of the Rules applies: r14.1. r 6.3 where SoC required. r 6.4 where S required. if wrongly commenced by: - SoC: Nevertheless deemed duly commenced by S: r6.5(1) - S: Nevertheless deemed duly commenced by SoC: r6.6(1) D to enter an appearance: - May file a notice of appearance: r6.9 under r6.10 within 28 or 7 days for SoC or before return or 7 days in case of S. - May enter a submitting appearance (no active part but will submit to order): r6.11 When is appearance not required? - Leave is granted: r6.1(1) - D has applied to set aside OP: r6.1(2)(a) under r 12.11. - P has applied for order in an urgent case: r6.1(2)(b) under r 25.2. - D makes an application in relation to setting aside or enforcing a judgment: r6.1(2)(c). Content of SoC or S: r6.12 - Relief claimed - Any question for determination by the court - Claim costs, exemplary and aggravated damages and interest up to judgment Notice to D: - SoC: Must state that D’s failure to file defence may result in judgment or order against D: r6.13 - S: Must state that proceedings may be heard and D liable to suffer judgment unless files a notice of appearance and attends on return day of summons: r6.14 6.1(3) - cannot take any step without an address for service if a person who is not a party and have file NoM. 6.2(4)(a) - in the case of proceedings in the SC to LC valid for service for 6 months after the date on which it is filed. 6.2(4)(b) - in the case of proceedings in the DC for 6 months after the date on which it is filed if it is a statement of claim seeking relief in relation only to a debt or other liquidated claim, or if the defendant (or at least one of the defendants) is to be served outside New South Wales, or for 1 month after the date on which it is filed, in any other case.
Joining Parties: UCPR r6.18 – 6.28
Substantive law determines what parties are “necessary” to resolve a dispute When can parties be joined? - 2+ persons may be joined if separate proceedings give rise to a common question of law or fact and in respect of the same transaction; or court gives leave: r6.19 - all persons jointly entitled to same relief must be joined: r6.20. Note: P must consent to being a P, and if not, becomes a D. Joint debtors and tortfeasors? Jointly and severally liable? Jointlyliable? Joint Contractors? A person who is not a party may apply to be joined as P or D: r6.27 - Causes of action may be joined where proceedings have already been properly constituted as to parties: r6.18 - Judicial discretion: r6.19 - Test: Court should take the course most conducive to the just resolution of the dispute, having regard to the desirability of limiting the costs and delay of litigation: [Springfield Nominees] Misjoinder or Non-Joinder: - Proceedings are not defeated merely because of misjoinder or non-joinder of any person as a party to the proceedings: r6.23. - Defective instead, cannot proceed unless rectified: [Cameron] - May order separate trials if joinder may embarrass, inconvenience or delay: r6.22 [Richardson] - Court may join party if joinder is proper or necessary: r6.24 - Joinder as a plaintiff requires party’s consent: r6.25 - May not join another person for purpose of making an application for costs: r6.26. - Court may order removal of parties where improperly or unnecessarily joined or ceased to be a proper or necessary party: r6.29.
Service
- proper notification to D of the existence of proceedings is a fundamental
principle of natural justice: Annetts. - unless mode of service brings the document to D’s attention, service is
not validly effected: Re a Debtor. - s 109X(1)(a) of the Corporations Act 2001 (Cth) provides: “a document may be served on a company by leaving it at, or posting it to, the company’s registered office, which does not apply where where documents may be served under the Service and Execution of Process Act 1992; Corporations Act 2001.
Substituted service r 10.14:
-
Two steps:
- court must be satisfied that the steps proposed to be taken in lieu of service will address “the purpose of bringing the document to the notice of the person concerned”
- must be reasonably likely that the proposed method of substituted service will bring the proceedings to the defendant’s attention: Porter
Injunctions
s 66(1) SCA: restrain any threatened or apprehended breach of contract or other injury.
s 66(3) SCA: restrain any threatened or apprehended waste or trespass s
66(4) SCA: grant interlocutory injunction where just or convenient to do so.
s 140 DCA: temporary injunctions: a threatened or apprehended trespass or nuisance or breach of a negative stipulation in a contract the consideration for which does not exceed $20,000 to continue for a specified period of no more than 14 days.
s 46 DCA: Mareva or Anton Piller orders.
Purpose: to protect P against injury for which he could not adequately compensated: American Cyanamid Co/restrain alleged wrongful conduct/preserve disputed property.
Test [onus on A]:
- Identify legal or equitable right that the injunction is to protect: Lenah Game Meats.
- That there is a serious question to be tried; (b) that the balance of convenience favours the grant of an injunction [i.e. injustice to the defendant if an interlocutory injunction is wrongly granted, and on the other hand the injustice to the plaintiff if an interlocutory injunction is wrongly denied: Nolan]; and
- That damages are not an adequate remedy. Castlemaine Tooheys; Lenah Game Meats.
‘strength of the case for final relief’ and ‘balance of convenience’ are inter-related: Nolan.
Other requirements
- Offer “usual undertaking as to damages”: r25.8. see European Bank“What is the loss that is now alleged?”, “Did that loss flow directly from the order of 18 May 2004?” and “Could the loss sustained have been foreseen at the time of that order?”
- Must demonstrate urgency (if interlocutory);
- Undertaking to file OP within 48 hours;
- May be made ex parte but unless there is a real need for urgency, it is generally essential to give notice to all parties of the application: r18.2(d); and
- Duty of candour - disclosure of material facts, even those matters adverse to A’s case: Thomas Edison and PN SC Gen 13 at [20].
Court retains power to vary interlocutory orders to take account of
changed circumstances: Phillip Morris Inc.
PN:
SC Eq 8 at [5]: court expects the moving party to have sought agreement as to undertakings from the defendant(s) prior to making any such application and, unless special circumstances exist, to have notified the defendant(s) of the application.
SC Gen 13 [Anton Pillar]: annexes standard order.
- [6] should have an independent solivitor who would supervise execution.
- [8] what should be included in affidavit.
- [10] undertaking as costs of independant solicitor.
- [18] as to undertaking required in addtion to usual undertaking as to damages, also see Annexure B as to the form of undertaking.
- [21] order to be served should be endorsed with a notice which meets the requirements: r40.7.
- [22] s 128A of EA may be relevant
Usually ex parte and before service of OP.
Mandatory injunction requiring R to permit P entry to inspect premises and insome circumstances to seize property found.
Purpose: ensure availability and preservation of evidence and protect court’s ability to do justice: Anton Piller KG. Evidence which is or may be relevant to an issue in a proceeding or anticipated proceeding.
May order in any proceeding or in anticipation of any proceeding, with or without notice to R.
Test:
- P has a strong prima facie case on an accrued cause of action [Prima facie case = genuine likelihood of succeeding on substantive claim on the basis of presently available information: Beecham Group].
- Potential for actual loss or damage to P will be serious if search order not made.
- Sufficient evidence that:
- R possesses important evidentiary material
- Real possibility R might destroy material or cause it to be unavailable
Made by motion: r18.1.
SC Gen 14 [Mareva]:
- [10] a freezing order should reserve liberty for the respondent to apply on short notice.
- [11] value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim.
- [12] order should, where appropriate, exclude dealings by the respondent with its assets for legitimate purposes.
- [14] s 128A of EA may be relevant.
- [16] as to undertaking required in addtion to usual undertaking as to damages, also see Schedule B as to the form of undertaking.
- [18] order to be served should be endorsed with a notice which meets the requirements: r40.7.
- [20] what should be included in affidavit.
With or without notice to R.
Purpose r25.11: Prevent frustration or abuse of process, not to provide security/ prevent improper disposal of assets by a judgment debtor/danger that judgment or prospective judgment may be wholly/partly unsatisfied.
May make ancillary orders as appropriate e.g. disclosure of assets: r25.12
Test [onus on P]:
1. Prima facie cause of action against D.
- Danger that P, if successful, will not have the judgment debt satisfied: Patterson. It must be clear that there is a ‘real risk of dissipation of assets.’: Sturesteps.
Order should be confined to amount of the claim.
Order should permit R his or her ordinary expenses including legal costs.
May be served outside Australia if assets are within court’s jurisdiction: r25.16.
An order cannot go further than what is necessary to preserve property: Lincoln.
Cicumstances:
Before a cause of action has accrued: r25.14.
On judgment or prospective judgment if sufficient prospect will be registered in, or enforced by, the court: r25.14.
Before/after judgment to aid its execution: Pelechowski
No proceedings on foot: r6.4(2)(e): by S. May also seek short service under r1.12 and service by other means than personal service: r10.14, r31.2 affidavit.
Proceeings on foot: notice of motion: r18.1 and affidavit: r31.2.
Final injunctions:
Must estbalish:
- Recognised legal/equitable right and that the infringing acr complained of is relevantly unlawful: Waterside Workers’ Federation
of Australia. - Need to preserve the subject matter of litigation: Williams.
If the party seeking the asset preservation order is not, at the time of seeking the orders, in a position to file a statement of claim where it would otherwise be required, then a short form summons should be filed with the Notice of Motion seeking asset preservation orders and affidavit in support of the application for the asset preservation orders. If an order is sought pursuant to this rule, it would, if possible, be prudent to have available, at the hearing of the application, a copy of the substantive originating document (eg statement of claim) proposed to be filed to commence proceedings or to be in a position to advise the court of the time period within which a statement of claim will be filed.
Summary disposal
Summary disposal
- Court may give judgment if there is evidence of the facts on which the claim is based and there is evidence given by P that he or she believes that D has no defence to the claim except as to the amount of any damages claim, court may give judgment for P as the case requires: r13.1.
- If there is a real question to be determined, it is inappropriate for the court to determine the matter summarily: Dey.
- Defendant needs to show that there is a triable issue: Fancourt Mercantile.
- Summary judgment is inappropriate where there are serious questions to be determined: Spellson.
- May be stayed pending determination of any outstanding cross-claim: r13.2 and s 67 CPA.
- If partial judgment given under r13.1, proceedings may be continued onthe claims not disposed of by the judgment: r13.3.
- Court may adjourn proceedings to a date, order P to be informed of adjournment and informed that failure to appear will result in proceedings being dismissed; 5 days’ clear notice is required: r13.6.
- Evidence in an interlocutory motion may be on information and belief [EA , s 75], but your need to state the sourse of your information.
- Test for summary judgment: same as for summary dismissal: “so obviously untenable that it cannot possibly succeed” and “manifestly groundless”: General Steel Industries Inc.
s 3 CPA: “plaintiff” also includes a cross-claimant – and they can also move for summary judgment.
Frivolous or vexatious proceedings: r13.4The proceedings are frivolous or vexatious,
- no reasonable cause of action is disclosed: General Steel where the plaintiff’s claim is taken at its highest [facts are assumed to be provable: Penthouse Publictions].
- the proceedings are an abuse of the process: PNJ where abuse of process will exhibit at least one of 1 characteristics.the invoking of a court’s processes for an illegitimate or collateral purpose;
- the use of the court’s procedures would be unjustifiably oppressive to a party; or
- the use of the court’s procedures would bring the administration of justice into disrepute.
Strike out: r14.28
- discloses no reasonable cause of action or defence.
- has a tendency to cause prejudice, embarrassment or delay.
- abuse of process.
- see: Thai.
- must pass the General Steel test in that the proceedings are obviously so untenable that it cannot possibly succeed.
Dismissal for want of prosecution r 12.7
- If P does not prosecute proceedings with due despatch, court may order proceedings dismissed, or make other order as court thinks fit: r12.7.
- If D does not prosecute proceedings with due despatch, court may strike out defence in whole or in part, or make other order as court thinks fit: r12.7
Dismissal of proceedings on P’s application: r29.8
Dimissal of proceedings on defendant’s application: r29.8
- D may apply for dismissal of proceedings on the ground that, on the evidence given, judgment for P could not be supported: r29.9
- “No case to answer” encompasses both evidence insufficient in law and also evidence so unsatisfactory that the court should not act upon it: Yuill.
- P’s evidence is to be taken at its highest: Naxakis
- D may apply for judgment for want of evidence: r29.10
- D must satisfy the court that judgment could not be supported on the evidence given: r29.10(3).
- If D wishes to adduce evidence or further evidence to support application,
- D must obtain leave of the court: r29.10(2)
Effect
s 91 CPA: dismissal without a determination of the merits does not, unless the dismissal is on terms, prevent the plaintiff from recommencing the action.
See: r 18.1, 31.2 and 35.3, 42.20 s 90 CPA and s 101(2)(e) SCA, 127(2)(d) DCA, s 40(2)(a) LCA - appeal requires leave, r 51.10 - leave to appeal
Default judgment
“Default”: r16.2
- fails to file a defence within time per permitted by r14.3(1)
- fails to file an affidavit verifying defence if so required: r14.23(3)
- court orders defence to be struck out: r14.28.
- available only in respect of proceedings commenced by SoC: r16.1
- P may apply for judgment against D in default and may carry on against any other party: r16.3
- application may be dealt with in absence of D and notice need not be served on D: r16.3(1A). Lack of notice will assist them if they attempt to set aside: r 36.16: Redditch Benefit Building Society
- court may give such order as P appears entitled to against D on SoC: r16.10
Default judgment is a final judgment
See: rr 18.1, s 75 of EA, 31.2, 35.3, 35.8, 61 CPA and s 100 CPA for interet up to judgment, but must be specifically pleaded: r6.12(6).
Setting aside default judgment: rr36.15 and 35.16
- court may set aside judgment or order prior to entry if it is a default judgment or judgment given in the absence of the party [i.e. not in open court].
- power is discretionary: balance competing interests of P and D and whether interests of justice require. If judgment has been properly obtained, D must show that it has a good excuse for the original default, and that it has a good defence on the merits: Cohen where test was whether it would be unjust to the defendant to let the judgment stand.
- must be able explain the original default which occasioned entry of the default judgment and the defednant’s proecpects will be relevant: Grimshaw.
See: r 1.12, 12.7, [which cannot extend 14 day time limit], AON, ss 56 and 59 of CPA and 61 CPA [where proceedingsd can be dismissed for non-complience with orders].
Separation of questions
Court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings: r28.2
If the decision of a question: r28.4
- Substantially disposes of the proceedings or of the whole or any part of any claim, or
- Renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim,
the court may dismiss the proceedings or the whole or any part of any claim,
give any judgment or make any other order
See: r 1.21(1)(a), ss 56 and 57 CPA, r 15.17, r 9.8 [separte trials of cross-claim].
Consolidation
- it is “desirable”, in the interests of the parties and in the public interest, to have “all matters in controversy arising out of related facts determined at the one time”: Sanderson Motors. Alternatively, the common question could be determined first pursuant to r 28.2. Also, see r 6.18 and 6.19.
Affidavits
PN SC Gen 4:
- [9] to [11] regarding tender bundles.
- [13] the original affidavit and exhibit must be available for production at the hearing. Before an affidavit is read, it must be filed in Court.
May grant leave to use an affidavit despite irregularity in form: r35.1
Formalities include making an oath or affirmation and attesting the presence of a competent person: ss11A, 12, 13 and 26 Oaths Act
Form: (Form 40)
- Oath or affirmation
- Attesting presence of a competent person
- Relevant
- Direct speech in recording statements by other people
- Procedure:
Notice served on party proposing to use affidavit requiring attendance for
XX, then reasonable time before person is required to attend for XX: r35.2.
Persons who may make an affidavit: r35.3
Divided into paragraphs, each matter is a separate paragraph, numbered
consecutively: r35.4
Any alteration must be initialed by the person before whom the affidavit
was sworn otherwise the affidavit cannot be used unless the court gives
leave: r35.5
Documents may be annexed or exhibited to affidavit, certified and pages and annexures consecutively numbered: r35.6
Annexed or exhibited? Depends on “convenience”
Each page to be signed: r36.7B
Must not be filed unless required to be filed or by leave: r35.9
Expert Evidence
Purpose of Division – r 31.17: give the court control over expert evidence and ensure that it is proportionate to the issues in dispute and has integrity.
Schedule 7
SC PN Gen 10 - Single Expert Wirtness [jointly retained in PI matters].
- applies to all proceedings commenced after its commencement in which a claim is made for damages for personal injury or disability.
- unless cause is otherwise shown, a single expert direction will be made in every proceeding and at the earliest practicable time in the course of case management.
SC PN Gen 11 - Joint Conference of Expert Witnesses [copy must be provided to experts]:
- [8] - [10] as to what to be provided to experts.
- [15] conference not to be held any earlier than 14 days after materials provided.
- [25] joint report to be prepared in accordance with [28].
- [30] legal represntattives should respond jointly.
SC PN Eq 5 - Expert Evidence in the Equity Division
- [6] legal representatives to confer with the aim of obtaining a joint expert.
- [7] where it is not appropriate or possible to agree on one expert or one expert in each specified issue or matter, the legal representatives should confer as early as possible to minimise the number of expert witnesses.
- [9] only one expert per specified issue will be allowed,w ith multiple defendants to be treated as one, unless good issue is shown.
- [12] party must seek those directions in accordance with paragraphs 13, 14 and 15 of PN [Annexure A].
- [14] if the parties do not agree on the proposed Expert Evidence Directions, the issue should be raised at the next directions hearing. The party who drafted the proposed directions should provide the Court with a copy at least three days before the directions hearing. If there is no upcoming directions hearing, the party may seek to have the proceedings listed before the Court on three days’ notice to the Court and the other party/parties.
See Brereton J’s comments in Wu as to when a single expert is permitted at [17] for the purpsoes of r 31.44.
Notices to produce
Notice to produce before hearing:
- Form 19: Notice to Produce for Inspection.
- Must be identified with reasonable precision: Penrith Rugby League Club.
- “relevant to a fact in issue” is not dissimilar to the test of relevance in s 55(1) EA.
- Special reasons are required for production of documents in PI matters:
r21. 12 - PN SC Eq 11 does not, in terms, apply to notices to produce because such notices do not seek an order for “disclosure of documents, however, see observations of Stevenson J in Baseline Constructions and compare to r 34.1.
- A fact is in issue if it is in the “field of contest” between the parties: Daya.
Notices to produce at hearing
- Cannot be used as a means of obtaining further and better discovery: Tony Azzi Automobiles.
Setting aside
- Setting aside is the same as for a subpoena: Portal Software.
- s 14.
Differnce between NTP and subpoena
- inter-party document [i.e. cannot issue NTP on third parties].
- subpoena is an order of the court.
- subpoena must be served personally [usually] and 5 days clear and requires conduct money, but may order reasonable payment of compliance with NTP.
- failure to comply with subpoena is contempt. NTP has the same effect as a subpoena for production, and compliance is mandatory unless production is excused by the court: Norris.
PN SC Eq 11:
- [4] 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] 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 seting out the matters in that paragraph.
- PN SC Eq 11 does not, in terms, apply to notices to produce because such notices do not seek an order for “disclosure of documents, however, see observations of Stevenson J in Baseline Constructions in that the PN is unlikley to be permitted to be thwarted.
Subpoenas
- r 1.12, 10.14, 10.20, 11.5, 42.27, 97 and 131 CPA and 133 EA.
Can be set aside in whole or in part: r 33.4:
- distinction between production and access: Short
- addresee does not have to be a party to set aside and has standing: Commissioner for Railways v Small
- can be made by anyone who might be shown to have a legitimate interest in having the subpoenas set aside: Botany Bay Instrumentation.
Grounds [overlap]:
- abused of process or no legitimate purpose: Small
- oppression: specified with reasonable particularity: Lane; excessive burden on producing party: Spencer Motors; doubting that he or she will actually be paid their expenses: Foyster.
- substitute for discovery: should not impose upon a third party the task of forming a judgment whether a document relates to issues between the litigants: Small; discovering a case of which that party is presently unaware: Associated Dominions Assurance Society
- insufficient particularisation of documents called for: “relating to” or “referring to” a particular subject matter is not necessarily oppressive: Spencer Motors; oppressive if the call, as understood by a member of the public, is too wide or uncertain: Southern Pacific Hotel Services.
- fishing expedition: does not seek documents relevant to an identified issue [i.e. finding a cause of action]: Rinehart
- privilege: r 1.9.
- relevance and lack of legitimate forensic purpose: must call for documents which have apparent relevance to the issues in dispute in the proceedings: Portal Software and Tuxford. Must be shown that the documentation will assist on an identified issue, or there is a reasonable basis beyond speculation it will be likely to assist: ICAP Australia [i.e. it must be on cards]. Detrmine issues by looking at peladings, particulars, affidabvits and evidence [such as expert reports]. Need not be admissible nor does it need to be tendered: National Employers Mutual General Association. “Sufficiently relevant” if production is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case: Spencer Motors. Assessment of the relevance of the documents sought by reference to the issues in the proceedings: Rinehart. It must be “on the cards” that documents will assist: Salem. Lower threhold of relevance and legitimate forensic purpose in criminal rather than civil proceedings.
Inspection r 33.9: If documents are produced on subpoena and an objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose: Tuxford. Application may be made for restricted access or that access be restricted to documents that have been subject to a masking process until further order: Portal Software.
PN SC Gen 19 - Subpoenas - proposed access orders and the return of subpoena list and PN SC Gen 18:
Filure to comply r 33.12: is contempt. Destruction of a relevant document before a subpoena has been issued can amount to contempt: McPerhson.
Preliminary Dicovery and Inspection
Test for 5.2 and 5.3:
- All reasonable enquiries must be exhausted with “cost, delay and uncertainty of the alternative measures is relevant to the rule’s ‘reasonable inquiries’ component”: Road and Traffic Authority (NSW). Must provide the substance of the enquiries they have made: The Age Company.
- Respondent may have information to assist: Road and Traffic Authority (NSW).
- Desire to commence proceedings in question: Road and Traffic Authority (NSW).
- Key principles relevant to an application for preliminary discovery were set out in Hatfield at [46]–[52].
- Does not involve an assessment of the merits of the proposed claim: The Age Company Ltd.
- Have to demonstrate more than a mere possibility of a claim: Quanta Software International.
- Order is discretionary even if the elements are established: Western Bulk Carriers (Australia).
- Must provide what information they have and detail what they require to decide whether or not to commence proceedings and cannot be used where applicant already decided to bring case: Morton.
r 5.4: authorises third party discovery in respect of existing proceedings: Kimberley Securities.
See: 1.9, Pt 21, Div 1. r 23.8 and r 42.21.
Discovery and Inspection
- r 21.6: continuing obligation.
- PN SC Eq 11 other than those in the Commercial Arbitration List. See comments of Bergin CJ in Eq in Armstrong Strategic Management and Marketing at [65]–[66], need “excpetional circustances”.
- “excpetional circustances” require something more than circumstances which are regularly, routinely or normally encountered: Leighton International. Where information necessary for one party’s case was solely within the knowledge of another party from which disclosure was sought: Naiman Clarke, but should not set the bar too high: Leda.
- Anton Piller order made ex parte: Long is a form of discovery.
- “special reasons” that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Thoo.
See: see s 3 of CPA for definition of “possession” which includes custody and power - can have “custody” of document even if do not have legal possession of it: Turner. Pt 3.10 of EA, s 87 CPA, 128, 130 and 131 of EA, 1.8 and 1.9,
Privilege and Time
- r 1.8, 1.9 and 131A, 133 and Pt 3.10 of EA.
- r 1.11, 1.12 and s 86 of CPA – extension may be granted conditionally. Costs follow the event/indulgence principles: r 42.1.
