Civil Procedure Act Flashcards
What are the main purposes of CPA?
(a) to reform and modernise the laws, practice, procedure and processes relating to civil proceedings in the Supreme Court, the County Court and the Magistrates’ Court and provide for uniformity;
(b) to simplify the language relating to civil procedure;
*** (c) to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute;
(d) to amend various Acts in relation to the conduct of civil proceedings to reflect the new procedures.
What is the overarching purpose of CPA?
s.7 Overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
How can the court further the overarching purpose?
s.9 Furthers the overarching purpose by regarding:
* The just determination of the civil proceeding;
* Public interest in the early settlement of disputes by agreement between parties;
* Efficient conduct of the business of the court;
* Efficient use of judicial and administrative resources;
* Minimising any delay between commencement of a civil proceeding and its listing for trial;
* Timely determination;
* Dealing with a civil proceeding in a manner proportionate to the complexity and amount in dispute.
Can have regard to:
* Compliance with mandatory or voluntary pre-litigation requirements
* Extent to which parties have endeavoured to resolve/narrow issues in dispute;
* Promptness with which parties have conducted themselves;
* Circumstances beyond control of party have limited its ability to act promptly;
* Compliance with overarching obligations;
* Any prejudice suffered by a party as a consequence of an order or direction;
* Public importance of the issues in dispute and desirability of judicial determination;
* Extent to which the parties have been legally advised and represented.
What is the paramount duty?
s.16 Paramount duty to the court to further the administration of justice.
* Applies to (s.10):
o Party
o Legal practitioner
o Law practice
o Funder
o Expert (except s18, 19, 22 and 26)
* Applies in respect of any party of proceeding (s11) – ie interlocutory and appeals
What are the other obligations under CPA?
Other obligations
* Act honestly (s17)
* Only make claims that have a proper basis (s18)
* Only take steps to resolve or determine the dispute (s19)
* Cooperate in conduct of the civil proceeding (s20)
* Not mislead or deceive the court (s21)
* Use reasonable endeavours to resolve the dispute (s22)
* Narrow the issues in dispute (s23)
* Ensure costs are reasonable and proportionate (s24) – see also LPUL s172
o Duty to ensure costs and reasonable overrides the duty to the client, such that the client’s instructions would not relieve the legal practitioner of the overarching obligation.
* Minimise delay (s25)
* Disclose the existence of documents critical to the dispute (s26) – also see O29 for discovery obligations
Contravention of overarching obligations
- Court may take into account contravention in exercising any power (s28)
Consequences of contravention of overarching obligations?
- If there has been a breach, court may make any order appropriate in interests of justice, includes (s29):
o Pay costs and expenses arising out of a contravention;
o Legal costs be payable immediately;
o Pay compensation for financial loss contribute to by contravention;
o Remedy a contravention;
o Not be permitted to take certain steps in the proceeding.
What should the consider when making an order regarding the contravention of an overarching obligation?
o Nature and gravity of the breach;
o Any prejudice caused to the other party due to the breach;
o Underlying merits of relevant claim;
o Duty of the court to give effect to overarching purpose;
o Whether party seeking an order has itself breached overarching obligations;’
o Whether order under s29 would breach principle of finality;
o Whether interests of justice served by making of the order.
What is the relationship between ADR and court processes?
- Ch 5 CPA is designed to encourage courts to make use of a greater variety of appropriate dispute resolution mechanisms.
- A court may order, at any stage of a proceeding, that all or part of the proceeding, be referred to ADR (s66).
- Can only be compulsory where non-determinative.
- If judicial resolution conference ordered, evidence of what was said or done in the conference is not admissible (s67)
- A judicial officer performing duties in connection with a judicial resolution conference will have the usual judge’s immunity from suit – s68
What is the court’s powers re case management?
s.47 Court has general power to case manage, in order to ensure that a civil proceeding is conducted in accordance with the overarching obligations
Can impose limits, conditions, restrictions on:
* Management and conduct of any aspect of a civil proceeding; or
* Conduct of any party.
How can the court case manage a matter?
Can case manage by:
* Giving directions to ensure a prompt and efficient proceeding; - s47(1) CPA
* Identify at an early stage the real issues in dispute; - s48(2)(c)
* Decide the order in which issues are to be resolved, and decide which issues require a full investigation and hearing and which issues may be determined summarily;
* Encourage parties to cooperate;
* Control proceedings by fixing timetables/making use of technology/not requiring parties to attend; - ss47(2) and (3) and (9)
* Limit the number of witnesses, time for questioning/XXN, limit issues to be cross examined on
What is the court power in relation to pre-trial procedures?
s.48 has power to order and direct pre-trial procedures. Court needs to have regard to ‘the most efficient, effective and cost effective disposition of pre-trial issues’ (Matthews v SPI Electricity).
Can make orders:
* Re conduct of proceedings;
* Timetables or timelines;
* Use of ADR;
* Attendance of parties/legal practitioners at a case management conference;
* Defining and clarifying issues;
* Conference before a judicial officer to ensure reasonable steps taken to resolve dispute and clarify the real issues in dispute/shorten time in preparing for the trial.
What are the court’s powers in relation to trial procedures and conduct of hearing?
s.49 has power to case manage in regards to trial procedures and conduct of hearing. May give any direction or make any order appropriate to further the overarching purpose. Can be given before or during a hearing.
Can:
* Order in which evidence is given;
* Order in which questions of fact are to be tried;
* Limit time allocated to a trial;
* Limit number of witnesses/how long questioned for;
* Limit issues on XXN;
* Limit length/duration of oral/written submissions;
* Limit number of documents to be prepared or tendered;
* Place, time and mode of trial;
* Whether evidence should be given.
What is a statement of issues?
s.50 order parties to consult and prepare a statement of issues. Purpose is to identify the key issues in dispute in the proceeding. They do not supplant the function of any pleadings.
