Civil Procedure - Cases and Practice Directions

Question 1

Name the main cases and the topics/ rules they apply to.

Answer 1

1. Vaughan v Buongiorno (Freezing/ Mareva) s260A
2. Tyler Custom Credit (Delay) - Rule 389
3. Cape York Airlines (Denials and non-admissions) - Rules 164-166
4. Shaw v DCOT (Summary Judgement) - Rule 292
5. Wilsons Ceramics v Pantaneius (Preservation of property) Rule 250
6. Evans Deakins v Orekinetics (Preservation of property) Rule 250
7. GE Automotive v Laverty (Preservation of Property) Rule 250
8. AON v ANU (Federal) Philosophy Rule 5
9. Spencer v The Commonwealth (s31A - Federal Summary Judgement).
10. Anton Pillar (Search Orders)
11. Adani Mining (Search Orders)

Question 2

Anton Pillar KG v Manufacturing Processes Ltd & Ors [1976] Ch 55

Answer 2

Appeal - equity - searching order - appeal against decision to refuse application for searching order.

Application for injunction and search order brought against the defendants due to concerns over secret communications with other German manufacturers regarding their frequency converters and details of new converter.

3 pre-conditions before making a search order:

1. MUST be an extremely strong prima facie case.
2. Damage, or potential or actual MUST be very serious for the applicant.
3. MUST be clear evidence that the defendants have in their possessions incriminating documents or things AND that there is a real possibility that they may destroy such material before any application inter parties can be made.

Question 3

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Answer 3

Appeal - procedure- leave to proceed under rule 389 - dismissal of proceedings for want of prosecution.

Cattle property - delay.

When a court is considering the dismissal of an action for want of prosecution OR to give leave to proceed there are a number of factors to take into account:

1. How long ago events in SOC occurred and what delay before litigation was commenced.
2. How long ago litigation commenced or COA added.
3. What prospects does plaintiff have of success?
4. Has there been disobedience of court orders or directions?
5. HAs the litigation been characterised by periods of delay?
6. IS delay attributable to PtF/DEF or both.
7. Is impecuniosity of PTF responsible for pace of litigation AND is the impecuniosity of PTF fault of DEF?
8. Would litigation between the parties end if proceedings struck out?
9. How far has litigation progressed?
10. Was delay result of PTF lawyer being dilatory?
11. Was there satisfactory explanation for delay?
12. Did delay result in prejudice to the DEF and lead to inability to ensure fait trial?

Question 4

Vaughan v Buongiorno [2007] NSWSC 1398

Answer 4

Equity - equitable remedies - application for Mareva injunction

Plaintiff = solicitor
Defendant = student

Property - loans

In SOC a plaintiff MUST show:

1. A prima facie cause of action against the defendant
2. A danger that by reason of the defendants absconding, or assets being removed out of the jurisdiction or disposed of, or otherwise dealt with, the plaintiff if he succeeds will not be able to have his judgment satisfied.

Held: prima facie COA not established due to deficient evidence re:loans payable on demand. Costs ordered against the plaintiff.

See also s260A
PD 1 of 2007

Question 5

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302

Answer 5

Application - procedure - pleadings - defence and counterclaim - failure to comply with Rule 166(4)

Application to strike out defence under Rule 171 of the UCPR

• a party’s denial of an allegation of fact MUST be accompanied by a direct explanation for the party’s belief the allegation is untrue AND
• a party’s non-admission of an allegation of fact MUST be accompanied by a direct explanation for the party’s belief that the allegation cannot be admitted.

Held: the pleadings of the defendant did not comply with Rule 166(4) and were not accompanied by a direct explanation for the party’s belief that it was untrue.

Question 6

Wilsons Ceramics Pty Ltd v Pantaneius Australia Pty Ltd [2021] QDC 74

Answer 6

Rule 250

There are two occasions when a court may make order for inspection:

1. When property is subject to proceeding property which a question may arise in proceeding
2. When the inspection of the property is necessary for deciding an issue.

Inspection, detention, preservation of property

ORDER was not allowed because there was a risk that the inspection might cause damage to the property. (Not necessary).

Question 7

GE Automotive Financial Services Pty Ltd v Christine Judith Laverty [2008] QDC 313

Answer 7

Rule 250

There are two occasions when a court may make order for inspection:

1. When property is subject to proceeding property which a question may arise in proceeding
2. When the inspection of the property is necessary for deciding an issue.

Inspection, detention, preservation of property

ORDER for detention was allowed but not in the order prescribed - order for preservation.

Question 8

Evans Deakin P/L v Orekinetics P/L & Ors [2002] QSC 042

Answer 8

Rule 250

There are two occasions when a court may make order for inspection:

1. When property is subject to proceeding property which a question may arise in proceeding
2. When the inspection of the property is necessary for deciding an issue.

Inspection, detention, preservation of property.

ORDER was allowed because in interest of justice to make. (Inspection)

Question 9

Aon Risk Services Australia Limited v Australia National University [2009] HCA 27

Answer 9

FEDERAL
Appeal from the Supreme Court of the ACT.

Appeal - pleadings - case management principles - whether leave to amend pleadings to add arguable claim may be refused on case management grounds.

Consider this case in context of QLD Rules about amending particulars interlocutory proceedings and civil procedure rules.

Philosophy Rule 5

Question 10

Shaw v Deputy Commissioner of Taxation

Answer 10

Queensland

Appeal - ending proceedings early -
s292 Summary Judgement

See also Salcedo.
The defendants filed an appeal against summary judgement stating they had complied with requirements and filed defence.

Discussion re: ‘REAL prospects’

Q: was it mere fanciful or a defence which needed to be explored at trial. Held a triable issue.

Question 11

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Answer 11

FEDERAL
Appeal from the Federal Court of Australia

appeal - summary dismissal of proceedings - whether no REASONABLE prospects of success pursuant to s31A(2) and (3) of the Federal Court of Australia Act.

Farm Owner

Held: The proceeding should NOT have been dismissed. Special leave to appeal granted.

Section 31A does not require a formulation of a certain and conclusive determination that a proceeding will necessarily fail.

The case must be very clear to justify summary intervention. This discretion is not to be exercised lightly.

Question 12

Name the 3 PD’s in the reading List.

Answer 12

1. PD 1 of 2023 (Commercial Lists)
2. PD 1 of 2007 (Freezing Orders)
3. PD 11 of 2012 (Supervised Case List)

Question 13

PD 11 of 2012

Answer 13

Supervised Case List

Question 14

PD 1 of 2007

Answer 14

Freezing Orders

Question 15

PD 1 of 2023

Answer 15

Commercial Lists

Question 16

What does Practice Direction 2 of 2007 say?

Answer 16

Deals with Search Orders under s261A of UCPR

See also Adani Mining v Pennings 2020 QCA 169

Sets out the requirements including:
- Independent solicitor to supervise search (& their responsibilities)
- other persons where necessary (i.e computer expert)

Number of persons should be as small as reasonably practicable.

Affidavit in support of search order.

Search order is subject to the adjudication on any claim of privilege.

Question 17

What must an affidavit in support of search order include?

Answer 17

• Description of things sought
• Address or location in relation to where order sought
• Why order sought - including real possibilty that things to be searched will be destroyed or unavailable.
• Any prejudice likely to be suffered by applicant if the order is not made
• Name and address

-ID of any person of any person at time of search who could be in a position of vulnerability.

Question 18

What is the practice direction for freezing orders and what does it say?

Answer 18

SC Practice Direction 1 of 2007

Applicant bears the onus of satisyfing the court that an order should be continued or renewed upon it’s return date.

The court may make ancillary orders.

The respondent may be either a person said to be liable or some other person who has custody, control, or ownership of assets that may be liable to disgorge.

Value of the assets covered by a freezing order should not exceed the likely maximum amount of the claim including interests and costs.

Question 19

What is the Practice Direction for Commercial Lists and what does it say?

Answer 19

Supreme Court Practice Direction 1 of 2023.

Exists for the just, expeditious and efficient resolution of commercial matters at minimum expense.

Matters allocated to a Judge.

Commercial matters.

Apply to place matter on list.

Any party opposing placing matter on lists needs to write to Associate of Principal Judge of Commercial list and explain why opposed.

Urgent matters likely to be subject to fast track directions.

Parties to meet prior to reviews to ID and try resolve issues.

Interlocutory applications subject to s444 and 445 of UCPR.

1st review ususally within 5 days of matter being placed on list.

2nd review within 2mths of 1st review.

Parties to confer early about expert evidence.

If a matter takes five days or less - Judgement ussually within 4 weeks.

Question 20

What is the Practice Direction for the Supervised Case List?

Answer 20

Supreme Court Practice Direction 11 of 2012.

Sets out the prcedures for cases that are assigned to Supervised Case List.

Usually complex or lengthy cases. (Trials over 5 days)

3 ways a case can be placed on a list:

1. Judge of the SC can place a case on the list either by application of one of the parties OR by decision of the Judge.

2.Party can apply to supervised case list manager for the matter to be placed on the list.

3. Supervised Case List Manager can place a matter on the list.

Questionaaire to complete if your matter is placed on list.

Regular review hearings.