Further Civil Rules Flashcards
How do you the other side to produce documents at trial?
r 227 Production of documents at trial
You provide notice to otherside to produce documents that are disclosed under this subdivision
What is the consequence of a party having to disclose a document at trial under r 227
The document is admissible against the disclosing party as relevant and as being what it purports to be
How do ordinary rules of evidence interact with rule 227?
They are not circumvented by the rule, still may require witnesses, cannot tender document that is obvious hearsay.
What are interogatories
written questions about matters in issue, served on a party required to be answered on oath
What is the rationale and purpose of interogatories?
Permits a party to prove facts they otherwise could not. And potentially allow a party to extract admissions, confining the issue in dispute. Are appropriate where a party does not have knowledge to advance their case
How to serve interogatories upon another party?
r 229 Delivery of interrogatories
Can be served at any time with leave of the court on a party or (non-party to determine if they should be a party in the proceeding). Limited to 30 questons, unless court otherwise allows.
When is the best time to serve interrogatories?
r 229(1) can be done at anytime however in reality, court is unlikely to grant leave prior to the conclusion of disclosure.
What empowers the court to grant leave for interrogatories?
r 230 Granting leave to deliver interrogatories
Can grant with or without notice to other party.
Can only grant if there is no other less expenssive alternative for the applicant to prove the matter.
Cannot be granted if proceedings in Mags Court for less than $7500.
What needs to be include in an application seeking leave for interrogatories?
r 230(2)
Draft of the questions should be annexed to the application.
What is considered when deciding an application for leave for interrogatories?
Quite special circumstances need exist, however the presence of a cheaper alternative to prove the matter will not prevent the granting of leave in of itself.
What are the limits of evidence sought by interrogatories?
Questions must relate to facts in issue revealed by pleadings etc. Extraneous answers sought “fishing expeditions” (including to determine if some other cause of action might exist) are not permitted
What are examples of permissible and impermissible interrogatories?
Account from fiduciary - permissible
Question of law/questions within the court’s jurrisdiction to determine- not permissible
Opinions - only if it is opinion that can be given by a witness ordinarily as it falls within ordinary experience, and not to be subject of expert opinion
Facts not in dispute - not permissible
Question that presumes fact - not permissible (unless admitted)
Documents - limited to ancillary matters about doc’s existence if it no longer exists (if it exists it can simply be proved under 233(1)(c)
Conversations - to determine time, date, place and ID of speakers, also words spoken need to be material
What rule provides for answering interrogatories?
r 231 Answering interrogatories
Must be answered within time specified by court and by a statement answerthing them with a vertifying affidavit as to the statement.
If party is claiming relief against multiple defendants, must be sent to each defendant that has filed ntoice to defend.
What must you do when doing your statement in asnwer to interrogatories?
r 232 Statement in answer to interrogatories.
Must answer the substance of each question, or object to it. Answer must be direct, non evasive, non technical. Objection must be set out .
When answering interrogatory is it sufficient to answer the question to the best of the party’s knowledge?
No, must not only answer to best of the party’s knowledge, information, belief but must also demonstrate that all proper reasonable enquiries have been made.
What does the court think of cheek when answering interrogatories?
Not on. Parties have obligations to the court and opponenets to do their best to be helpful, not grudging or clever. If a question has typos, doesn’t matter as long as the intention is clear, it should still be answered.
When can you object to interoggaroties? What rule?
r 233 Grounds for objection to answering interrogatories
Not relevant to a matter in question.
Won’t enable the court to decide a matter in question.
Likely to be at trial, a simple, easier, inexpensive way of proving the matter.
Vexatious or oppressive.
privlege
Is there another way, aside from objection, to avoid answer interrogatories? What rule?
r 234 Unnecessary Interrogatories
Party can apply to court to be relived of answering unnecessary interrogatories.
Who can swear the affidavit that accompanies the statement in answer of interrogatories? What rule?
r 234 Identity of individual by whom verifying affidavit to be made
Person, guardian (legal incapacity), proper officer for corp, etc.
What is the recourse/court’s power where a party fails to answer interrogatories, or gives inadequate answers ? What rule?
r 236 Failure to answer interrogatories
Court can order answer/further answer be given.
Person ordered to attend to give evidence orally.
Order a person qualified to do the accompanying statement affidavit (if OG person not qualified).
What is the test for the court when considering to order further answers to interrogatories? What rules is concerned?
r 236(2)
Twofold test:
Whether the interrogatory is proper, and
whether an answer to it is reasonable necessary for the proper and efficient conduct of the proceeding.
Answers merely not being helpful to the interrogator, are not suffcient.
What is the consequence of failing to answer interrogatories, following a court order under r 236(2) to answer them? What rule?
r 237 Failure to comply with court order
Party can apply on notice to that part/all of proceedings are stayed/dismissed or obtain judgement or that the interrogatories and affidavit be done within specified time. And of course, contempt.
What can you do with answered interrogatories at trial? What rule?
r 238 Use of Answers.
Can tender them at trial as they are admissions of fact admissible against their maker.. Court may require all of them be tendered.
who can interrogatory/disclosure orders be served on, and what is the consequence of noncompliance with those?
r 240 Service on solicitors
Service can be done on solicitors. Parties liable to contempt. If solicitor does not notify their own party, solicitor is liable for contempt.
What can you do if you want disclosure of documents from non-parties? What rule?
R 242 Non-party disclsoure
Can serve notice on non party to produce to applicant (within 14 days) documents; directly relevant to allegation in issue, inpossession of, and a doc that the party be required to serve at trial.
When may a non-party disclosure request not be permitted? What rule is concerned
r 242 Non-party disclosure
The documents sought must relate to allegations in issue. “Fishing expeditions” are not permitted.
Can you do a non-party disclsoure request prior to the close of pleadings? What rule is concerned?
r 242(2) provides that the production not required if there is a alternative simple/inexpensive way of proving the matter the doc would prove, and this could be done by virtue of the pleadings and responses (i.e. admissions of fact) and what is in issue would not yet have formalised.
What is the scope of the duty to disclose of a non-party subject to non-party disclosure? What rule is concerned
r 242(4) disclosure under this division is not an ongoing duty. The non-party need only respond to the immediate request.
How must non-party disclosure notice be served? What rule?
r 243 Form and service of notice
must be in same way as claim, state the allegation in issue for which the doc is sought, include a cert that there is no simple/inexpensive alternative to obtaining the doc, be in approved form, be served in same way as claim and 3 months after its issue. And r 244 Others affected by notice, must also be satisfied.
Who must be served first with a notice of non-party disclosure, prior to serving the respondent of that notice? What rule?
r 244 Others affected by notice
Generally persons intersted in the doc;
Person about whom information is sought/or owner of the doc if respondent does not own unless the applicant believes that such notice will lead to fabrication of evidence/fraud then the app can do a certificate
What is the recourse against non-party disclsoure, if the respondent or a r 244 person hates it? What rule?
r 245 Objection to disclosure
Can be objected to within 7 days, or later time with leave. Must be in writing, served on application (and respondent if r 244 person) and clearly state the objection.
What are the grounds for objection to non-party disclosure? What rule is concerned?
r 245(2) reasons, not limited to
If the objector is the respondent, the cost or inconvenience.
Lack of relevance, lack of particularity as to docs sought, privilege, confidential nature of docs, effect disclosure would have on any person, the objector not having been served with the notice.
What is the immediate consequence to an objection to non-party disclosure? What rule is concerned?
r 246 Objection stays ntoice
Objection under r 245 stays the notice of non-party disclosure.
What can applicant do if non-party disclosure request objected to and stayed? What rule?
r 247 Court’s decision about objection.
Applicant can apply to court within 7 days of objection and court can make orders, not limited to, lifting the stay, varyuing the non-party disclsoure notice, setting aside the notice
Can you use a non-party disclosure request in an arbitration?
No, can only be used in “proceedings”
What must the respondent do in response to a valid, non-objected to non-party disclsoure request? What rule?
r 248 Production and copying of documents
Respondent has to produce document for disclosure at their business, or solicitors office, or as otherwise agreed. Applicant can make copies.
What can an applicant do if a respondent does not comply with non-party disclosure reuqest that has not been objected to? What rule?
r 248(2) Production and copying of documents
Applicant can apply to court for order of compliance.
What can a respondent/defendant do if an applicant/plaintiff fails to take a step in the proceeding within required time frame? What Rule
r 280 Default by plaintiff or applicant
If plaintiff or applicant fails to take a step in required time frame, defendant/respondent can apply for dismissal for want of prosecution.
What recourse is there for a plaintiff/applicant who have had proceedings dismissed for want of prosecution? What rule?
r 280 Default by plaintiff or applicant
r 280(3) dismissal only set aside on appeal or ifparties agree to it
r 280(4) dimissal can be set aside by court however if it was made in absence of plaintiff/applicant
What is the rationale underpinning r 280?
r 280 Default by plaintiff or applicant.
To be read in conjunction with r 5, the implied undertaking to expeditious with proceedings.
Who bears the onus for an application in dismissing a proceeding for want of prosecution and what must be established?
The applicant
What are the pre-conditions to be met to enliven the power of the court under r 280?
r 280 Deafult by plaintiff or applicant
three pre-conditions;
(1) a rule required plt/app to take step, or order required step, within a stated time
(2) plt/app does not do that within stated time
(3) deft/resp applies to court to dimiss for want of prosecution (does not appear court can do this of own motion)
Tyler v Custom Credit; what rule does it apply to and what are the princples of it
r 280 Default by plaintiff or applicant
On application under this section to dismiss for want of prosecution, the court has a discretion to exercise. The determining factors are
(1) howlong ago events alleged in claim occurred, and delay before litigation commenced
(2) how long ago the litigation was commenced or causes of action added
(3) prospects of the plaintiff’s success
(4) if there has been disobedience of court orders/directions
(5) whether litgation characterised by periods of delay
(6) whether delay attributable to the plaintiff or deft or both
(7) whether plt impecuniousity atrributable, and if deft is responsible for that impecuniosity
(8) whether litigation between parties would be concluded by striking out plt’s claim
(9) how much litigation has progressed
(10) whether delay is by plt’s lawyers being dilatory
(11) whether there is satisfactory explanation for delay
(12) has delay caused prejudice to deft having fair trial.
These arent rigid rules, court also have reagrd to ordinary community members entitled to get on with their lives without continuing threat of litigaiton
What must be tempered with an application under s 280, and against the prinicples of Tyler v Custom Credit?
Well established principle that court is to decide rights of parties, not punish them for mistakes with the conduct of their cases
What can a plaintiff do if a defendant has no real prospoect of defending all/part of a claim and there is no need for a trial? What rule?
r 292 Summary Judgement for the Plaintiff
Plaintiff can apply to the court for summary judgment any time after the defendant files a notice of intention to defend.
What is required for the court to grant summary judgement for a plaintiff? What rule is concerned?
r 292
Deft has no real prospect of defending, partly or all of claim, AND
no need for a trial of the claim/part
What does the case law generally say about the phrase “no real prospects” for the purposes of rr 292, 293?
Has to be the clearest of cases. More than fanciful etc.
Ordinarily party is not to be denied placing their case before the court.
What are the principles for establishing “no need for trial” for r 292?
Will not be satisfied if;
Triable issue at law, or a question of law, or circumstances that ought be investigated, or a defence may later come to exist etc.
What can a defendant do if a plaintiff has no real prospects of succeeding? What rule and elements?
r 293 Summary Judgement for the Defendant
Deft can apply for summary judgement, after filing notice of intention to defend.
If Plt has no real prospect of succeeding and there is no need for trial, court can grant the application.
What is the consequence of only part of a claim being disposed of by summary judgement? What rule?
r 294 Claims not disposed of
The residual claims continue on foot. And a party (such as a defendant) is not limited in applications for summary judgement so can bring them again. (bear in mind res judicata)
What is r 366 about?
Broad discretion that court can give directions at any time about the conduct of proceedings (even if inconsistent with other provisions) and party may apply for these as well.
What is a sensible demonstration of an order under r 366 and r 367(1)?
Ordering that an application for substituted service be dispensed with since it, and the actions of applicant contained in affidavit, be deemed as substituted service, to save cost as parties repeating steps.
What is paramount about a court made direction or order?
r 367(2) Interests of justice
What kind of directions can the court make regarding the conduct of a proceeding? What rule?
r 367(3)
Limiting time on evidence, crossing, trial, submissions, lengths of documents, etc. Court to take into account matters under r 367(4).
What is the general consequence for non-compliance with rules? What rule?
r 371 Effect of failure to comply with rules
Is an irregularity, does not nullify proceeding. This is to avoid undue technicality. However could can make orders under sub (2), subject to rr 372 and 373.
Is there is not strict compliance with forms, can a proceeding be struck out? What rule and what law might apply?
Compliance need not be strict, only substantial, Acts Interpretation Act s 48A for r 371.
What is the consequence of non-compliance with rr 243(2) and 244, non-party disclosure?
Affected persons not served for non-party disclosure is an irregularity, and can be cured under order of r 371(2)(d) and where affected party’s were served one month after and there was no objection from such persons, the service was still deemed effectual.
What are the limits of orders made under r 371?
Cannot remedy something that goes beyond mere “procedural irregularity” like seeking an extension on time for a statutory time limitation on a cause of action
Can you file an amended claim without an order? What rule might assist?
Filing an amended claim without order is an irregularity however because of r 371 would be valid.
What is a stale claim, and is service of it irregularity or nullity? What rules?
Stale claim is one not served within 1 year duration under r 24 and service of it irregularity which may be waived under r 371 provided it would be proper to renew the claim.
Can you use a subpoena in lieu of the non-party disclosure provisions, would that be an irregularity or nullity, what rules and why?
subpoena in lieu of non-party disclosure provisions is not a “mere procedural irregularity” that can waived by r 371, because there are stringent safeguards that exist in the non-party disclosure provisions, that would not be observed by a subpoena.
What is the general power to amend and what does it include?
r 375 Power to amend
Any stage, court can allow/direct party to amend claim, pleading, application, any other document in way court considers appropriate. Even if effect arises new cause of action. Misnomer of party must be allowed to be amended. Subject to r 376.
What if a party seeks to amend a claim that was commenced in time, but the limitation period has now ended, and the consequence of the amendment would either give rise to new cause of action or a different defendant? What rules?
r 375 Power to amend. r 376 when amendment is made after limitation period.
r 376(4) New cause of action - can only be allowed if court considers it appropriate and the new cause arises from same factual matrix
r 376(2) Substitute a party - if court satisfied mistake should be corrected and it was genuine and was not misleading nor likely to cause reasonable doubt on the person being sued.
What would be the consequence of a plaintiff suing in negligence, who alleges from the same story a different breach of duty of care owed?
Would give rise to a new cause of action. Amendment can be permitted pursuant to r 376(4).
How does limitations of proceedings statute interact with r 376(4)?
Cannot use r 376(4) to backdoor a cause of action claim that is clearly out of time. New cause of actions can only be permitted if they substantially arise from the same story/facts/factual matrix.
E.g. Plt brings claim for injury incurred at work place alleging back injury from driving equipment, then tries to amend claim to include new cause of action from injury from shovelling mud 2 years later, and now time has passed, r 376(4) won’t allow amendment to add the subsequent to circumvent time limitations as not the substantially same facts.
