CPA - Commencement and conduct of proceedings Flashcards
41 OOs certification by parties on commencement of civil proceeding
Parties must certify that they have read and understood the OOs and the paramount duty.
A certification must be filed with the first substantive document in the civil proceeding.
42 Proper basis certification
A party’s legal practitioner must make proper basis certification whenever it files its first substantive document AND when it files any subsequent substantive document which:
- adds or substitutes a PARTY
- MAKES, ADDS OR SUBSTITUTES A CLAIM or cause of action, substantive defence or substantive matter, or a material allegation, denial or non-admission of fact or law
- makes any significant AMENDMENT to a first substantive document or a subsequent substantive document.
Where a civil proceeding involves FACTUAL ALLEGATIONS, a legal practitioner must certify that on the factual and legal material available:
- each factual allegation in the document has a proper basis
- each denial in the document has a proper basis
- each non-admission has a proper basis.
A determination on whether a proper basis exists must be based on a reasonable belief as to the truth or untruth of the allegation or denial (s42(3)(a)).
44 Urgent filing of documents and certification
A party need not comply with any certification requirements if, as a matter of urgency, a document is required to be filed in a civil proceeding.
45 Proceedings may be commenced or substantive docs filed despite failure to certify
Unless a court otherwise orders, a court may not prevent civil proceedings from being commenced or a party from filing any substantive document merely because of a failure to comply with certification requirements.
46 Court may take failure to comply into account
However, a court may take into account that failure in:
- determining costs,
- making any order about the procedural obligations of parties, or
- making any other order as it considers appropriate,
AND the party must file the relevant certification as soon as practicable after filing the document.
47 Judicial powers of case management—overarching purpose and active case management
A court may give ANY DIRECTION OR ORDER to ensure that a civil proceeding is conducted in accordance with the overarching purpose.
Such an order may involve the imposition of limits, conditions and restrictions on:
- the management and conduct of any aspect of a civil proceeding; or
- the conduct of any party.
Ways a court may actively case manage:
- identify at an early stage the real issues in dispute
- decide the order in which issues are to be resolved / which issues require a full investigation and hearing / which issues may be determined summarily
- encourage the parties to co-operate, settle in whole or part, or use ADR
- fix timetables, dealing with multiple issues at once, or making use of technology
- limit the number of witnesses, XXN time, or issues that may be examinable or cross-examinable
48 Court’s power to order and direct pre-trial procedures
The court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures.
49 Court’s power to order and direct trial procedures and conduct of hearing
In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
A direction or order may be given / made by the court at any time before a hearing commences, or during a hearing.
Examples of possible directions / orders:
- the order in which evidence is given
- the order in which questions of fact are to be tried
- limiting the time allocated to trial or to a party
- limiting the number of witnesses or excluding XXN of witnesses altogether
- limiting the issues which may be examined or cross-examined
- the place, time and mode of trial
- costs
50 Statement of issues
A court may order or direct parties to consult and prepare a statement of issues. The purpose of such a statement is to IDENTIFY AND SUMMARISE THE KEY ISSUES in dispute.
If the parties to a proceeding cannot agree on the contents of a statement of issues which they have been ordered to prepare, the COURT MAY SETTLE THE CONTENTS itself.
50A Use of statement of issues
Where a statement of issues is prepared, a court may use that statement in any way it considers appropriate in order to further the overarching purpose. This may include using a statement of issues for the purposes of discovery.
A statement of issues does not supplant the function of any pleadings in a proceeding. Thus, pleadings continue to define the issues requiring judicial determination.
51 Contravention of orders or directions under this Part
If a person to whom a direction / order is made CONTRAVENES THE DIRECTION OR ORDER, the court may do any one or more of the following:
- DISMISS the civil proceeding either generally, in relation to a particular cause of action, or in relation to a particular claim
- STRIKE OUT or limit a plaintiff’s claim
- strike out or limit a defendant’s defence
- strike out or AMEND any document filed by the person either wholly or partially
- DISALLOW or reject any EVIDENCE that the person has adduced or seeks to adduce
- direct the person to pay the whole or part of the COSTS of another party or person
- make ANY OTHER ORDER or give any other direction that the court considers appropriate
54 Discovery of documents to be in accordance with rules of court (SCR29.01)
Unless a court otherwise orders, discovery of documents in a civil proceeding is to be in accordance with the rules of court.
R29.01.1 of the SCR:
‘…the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—
- documents on which the party relies;
- documents that adversely affect the party’s own case;
- documents that adversely affect another party’s case;
- documents that support another party’s case.
55 Court orders for discovery
A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
55A Provision of documents by consent
Provided all parties to a proceeding CONSENT, a court may order or direct a party to provide all documents in their possession or control which relate to the issues in the proceeding to any other party, on the basis that PRIVILEGE in those documents is NOT waived.
NB: An order/direction under 55A may include documents which would not ordinarily be required to be discovered in accordance with the respective court’s rules.
55B Affidavit of document management
A court may order or direct a party to provide the court with an affidavit of document management in order to assist the court to make any appropriate orders or directions in relation to discovery.
Such an affidavit may include details of the following:
- the volume, manner of storage, type or location of discoverable documents;
- the party’s document management PROCESSES.
An affidavit of document management does NOT replace any other affidavit of documents which may be required in a proceeding.
