Civil Proceedings

Question 1

Under what section does the Federal Court have power to make interlocutory orders?

Answer 1

FCA s 23

Question 2

Under what section does the Supreme Court have the power to grant injunctions?

Answer 2

SCA s 66

Question 3

What is the District Court’s jurisdictional limit, and under what section can it be found?

Answer 3

$750,000; DCA s 4

Question 4

Which section sets out the District Court’s common law jurisdiction?

Answer 4

DCA s 44

Question 5

Under what section can the District Court grant injunctions, and in what circumstances?

Answer 5

DCA s 140
Injunction to prevent threatened or apprehended trespass or nuisance
Injunction to prevent breach of negative stipulation in contract, consideration for which does not exceed $20,000

Question 6

What are the jurisdictional limits of the General Division and Small Claims Division of the Local Court? What section sets out these limits?

Answer 6

General Division: $100,000
Small Claims Division: $10,000
LCA s 29

Question 7

In what circumstances can you appeal from a Local Court decision as of right?

Answer 7

General Division to Supreme Court on question of law: LCA s 39(1)
Small Claims Division to District Court on grounds of lack of jurisdiction or denial of procedural fairness: LCA s 39(2)

Question 8

In what circumstances is leave required for a subpoena?

Answer 8

Unrepresented litigant in NSW: UCPR 7.3(1)
Small Claims Division of Local Court: UCPR 7.3(2)
Federal Court: FCR 24.1

Question 9

National Employers Mutual General Insurance Association Ltd (NEMGIA) v Waind
What are the relevant principles?

Answer 9

A subpoena or notice to produce is not a substitute for discovery
Documents sought must be identified with reasonable particularity
A subpoena or notice to produce must not serve as a fishing expedition

Question 10

Commissioner for Railways v Small

What are the relevant principles?

Answer 10

A subpoena or notice to produce can be set aside for having no legitimate forensic purpose or for being an abuse of process

Question 11

Seven Network v News Ltd

What is the relevant principle?

Answer 11

A notice to produce can be set aside on the same grounds as a subpoena
Notice to produce can be set aside for lack of relevance

Question 12

What limits apply to notices to produce in personal injury claims?

Answer 12

Party not required to comply with notice to produce in relation to document or thing that has not been referred to in originating process, pleading, affidavit or witness statement filed or served by that party, unless the court orders otherwise

Question 13

How do notices to produce differ from discovery, and what is a case to cite in this respect?

Answer 13

Cannot use notices to produce as means of obtaining further and better discovery
Tony Azzi Automobiles Pty Ltd v Volvo Car Australia [2006]

Question 14

In which circumstances will a person not be required to comply with a subpoena under the Criminal Procedure Act? Which section applies?

Answer 14

Person not required to produce document if not specified or sufficiently described in subpoena, or if person named would not be required to produce in a subpoena in the NSWSC
CrPA s 225

Question 15

Iovanescu v McDermott [2004]

What is the principle of this case?

Answer 15

Prima facie the rules of court must be observed

Question 16

Under what section can a person abandon an amount in excess of a jurisdictional limit?

Answer 16

CPA s 23(1)

Question 17

Unconventional Conventions v Accent Oz (2004)

What is the principle of this case?

Answer 17

A second mediation may be ordered where circumstances have substantially changed since the first mediation

Question 18

What privileges apply to mediation sessions and associated documents? What is the relevant provision?

Answer 18

Evidence of anything said or admissions made in a mediation section is not admissible in any proceedings before any court or body
Documents prepared in relation to a mediation session are not admissible in any proceedings before any court or body
CPA s 30(4)

Question 19

789Ten v Westpac (2004)

What is the principle of this case?

Answer 19

Material obtained by voluntary disclosure at mediation can be incorporated into pleadings and proved by other admissible evidence in proceedings

Question 20

What are the principles of CPA s 56(1)-(4)?

Answer 20

(1) : Overriding purpose of CPA and rules is to facilitate just, quick and cheap resolution of real issues in proceedings
(2) : Court must seek to give effect to overriding purpose
(3) : Party to civil proceedings is under duty to assist court to further overriding purpose
(4) : Solicitors, barristers and other persons with relevant interests must not cause parties to breach duties under (3)

Question 21

Aon Risk Services v ANU

What are the relevant principles?

Answer 21

Importance of avoiding unacceptable delay in case management
Consideration of court resources, other litigants and public confidence in legal system as considerations in case management

Question 22

Bi v Mourad [2010]

What are the relevant principles?

Answer 22

ss 56-60 set up a system that requires court to turn away ‘reluctant gladiators’
Proceedings can be dismissed for want of due despatch having regard to ss 56-60 factors

Question 23

Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing

Answer 23

‘Satellite’ interlocutory proceedings inconsistent with ss 56-60

Question 24

What is the relevant principle of CPA s 58(1)?

Answer 24

In deciding whether to make order or direction, and terms of order or direction, court must seek to act in accordance with dictates of justice

Question 25

What does CPA s 64 cover?

Answer 25

Amendment of documents

At any stage, court may order that document be amended or grant leave to any party to amend document in proceedings

Question 26

In what circumstances will a legal practitioner be liable for unnecessary costs? Which section covers this circumstance?

Answer 26

CPA s 99
Serious neglect, serious incompetence or serious misconduct of legal practitioner
Costs incurred improperly or without reasonable cause in circumstances for which legal practitioner responsible

Question 27

Which practice note covers matters relevant to a personal costs order? Which factors are relevant?

Answer 27

PN SC Gen 5
Failure to give appropriate advice to client; failure to observe listing procedures, rules and directions; failure to ensure readiness for trial; failure to provide reasonable estimates of length of hearings; failure to comply with timetable or provide notice of adjournment

Question 28

In what circumstances under the UCPR is a notice of appearance or originating process not required? Which provision sets these out?

Answer 28

UCPR 6.1(2)
Where defendant applies to set aside originating process
Where defendant makes application in relation to setting aside or enforcement of judgment
Where plaintiff applies for order in urgent case before commencement of proceedings

Question 29

Subpoena and notice to produce under 21.10A reasonable basis for believing that the costs of compliance will not be met is an oppressive basis for setting asideFoyster v Foyster Holding (2003) NSWSC 881

Answer 29

Foyster v Foyster Holding (2003) NSWSC 881

Question 30

Subpoena and notice to produce under 21.10Facts: Fatal injury occured to plumber employed to do work for a railwayHeld: documents must exist at the time of productionO’Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81

Answer 30

O’Born v Commissioner for Government Transport (1959) 77 WN

Question 31

Subpoena and notice to produce under 21.10Facts: man was killed when falling from the train and brought action against owner of the railway. Served subpoena on the railway. Railway tries to set aside as an abuseHeld:1. addressee has grounds to set aside a subpoena2. Subpoena cannot impose a requirement to determine if it falls within the scope of the subpoenaCommissioner for Railways v Small (1938) 38 SR (NSW) 564

Answer 31

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Question 32

Subpoena and notice to produce under 21.10Facts: Owner of business against former directors on basis that they had attempted to appropriate through strategic means. The Plaintiff issued subpoena to family companies.Held:1. Any person with legitimate in having the subpoenas set aside2. NTP under 34.1 can be made returnable at a time other than the hearing with leave

Answer 32

Botany Bay Instruments and Control Pty Ltd v Stewart (1984)

Question 33

Subpoena and notice to produce21.10Subpoena must have a legitimate forensic purpose

Answer 33

Portal Software International Ltd v Bodsworth (2005) NSWSC 1

Question 34

Subpoena and notice to produce under 21.101. document does not need to be admissible2. improper to issue the subpoena for any other purpose unrelated to proceedings3. Documents should bear some relevance to facts in issueNational Employers’ Mutual General Assn v Waind (1978) 1 NSWLR 372

Answer 34

National Employers’ Mutual General Assn v Waind (1978) 1 NSW

Question 35

Subpoena and notice to produceSufficiently relevant if reasonably likely to add in some way or other to relevant evidence in the caseR v Tastan (1994) 75 Crm R 498

Answer 35

R v Tastan (1994) 75 Crm R 498

Question 36

Topic:Facts:Held: make out subpoena’s to XYZ Pty Ltd by its proper officerRochfort v Trade Practices Commission (1982) 153 CLR 134

Answer 36

Rochfort v Trade Practices Commission (1982) 153 CLR 134