Gap areas (memory)

Question 1

What constitutes contempt of court?

Answer 1

There is both civil and criminal contempt.

Contempt in the face of the court is an act which has the tendency to interfere with or undermine the authority, performance or dignity of the courts.

Contempt can be constituted by:
(1) Failing to comply with a valid subpoena for production, without reasonable excuse.

(2) Abusing or swearing at a magistrate
(3) Refusing to answer the questions of a judge or magistrate.
(4) Filming witnesses with a view to intimidation.
(5) Refusing to leave the court when directed.

Question 2

What are the grounds and caselaw for setting aside a subpoena?

Answer 2

Burdensome or oppressive: South Pacific Hotel Services v South Pacific Hotel Corp;
Abuse of process: i.e. issued for a reason unconnected to the litigation: Commissioner for Railways v Small
Insufficient particularity /fishing expedition: NEMGIA v Waind ; Cmmr for Railways v Small
Not relevant to a fact in issue: No reasonable cause to expect that they are relevant to a fact in issue.

Question 3

What is meant by a fishing expedition?

Answer 3

That the subpoena fails to identify the documents sought with sufficient particularity or are too broad and is using the subpoena as a substitute for discovery: NEMGIA v Waind and Commissioner for Railways v Small.

A subpoena that is insufficiently particular is liable to be set aside.

Question 4

Tony Azzi Automobiles v Volvo Australia.

What is this case authority for? (hint: two related things)

Answer 4

A NTP cannot be used as a means of obtaining further and better discovery.
A NTP can be set aside on the same grounds as a subpoena.

Question 5

What are relator proceedings?

Answer 5

Relator proceedings are proceedings brought by a private citizen with the consent of the Attorney General.

Question 6

What must an applicant for substituted service establish?

Include case law in your answer.

Answer 6

That the person who the applicant is seeking to serve:

(1) cannot practically be served (or cannot practically be served in a manner provided by the law) (ASIC v Sweeney); and
(2) that reasonable attempts have been made to serve the respondent ; and
(3) that the proposed method of substituted service is reasonably likely to bring the subject document to the respondent’s attention (Chappell v Coyle).

Question 7

What are the relevant sections of SEPA that authorise interstate service of a:

(a) civil OP
(b) criminal OP
(c) civil subpoena
(d) criminal subpoena

Answer 7

As follows:

(a) Civil OP - s 15 SEPA
(b) Criminal OP - s 24 SEPA
(c) Civil subpoena - s 29 SEPA
(d) Criminal subpoena - s 29 SEPA.

Question 8

What are the requirements under the District and Local Court Rules in relation to service of subpoenas?

Note there are no SCNSW Rules for subpoenas.

Answer 8

Subpeonas must be personally served or can be posted or faxed to their residence or place of business.

Question 9

When can a party appeal from the Local Court as of right?

Answer 9

Under s 38 LCA, all decisions and orders of the LC are final, subject to the operation of that part.
s 39(1) LCA allows an appeal from the general division of the Local Court to the Supreme Court, but only on a question of law.
s 39(2) LCA allows an appeal from the small claims division of the Local Court, but only on a question of lack of jurisdiction or denial of procedural fairness.

Question 10

When does a party require leave to appeal from a decision of the Local Court?

Answer 10

Under s 38 LCA, all decisions and orders of the LC are final, subject to the operation of that Part.

Under s 40(1) LCA, a party can appeal from a decision of the GENERAL DIVISION of the LCNSW, with leave, but only on a question of mixed law or fact.
s 40(2) LCA permits an appeal, with leave, but only one of the following decisions:
(a) interlocutory orders;
(b) order as to costs; or
(c) orders made by consent.

Question 11

What decisions of the District Court require leave to appeal?

Answer 11

Under s. 127(2), leave is required to appeal from the District Court in the following cases:
1. Interlocutory judgment;
2. Judgment for costs;
3. Summary Judgment;
4. Judgment with consent;
5. Judgment where matter in issue, claim, demand or question involves less than $100,000.
All other appeals are heard as of right: s. 127(3) & 127A.

Question 12

Name 4 cases and their principles in relation to the failure to provide notice of an alibi witness.

Answer 12

(1) R v Cooper: Unless there are good reasons not to do so, where an accused has failed to provide notice of an alibi witness under s 150 CPA, the proper approach is to allow the notice and permit the Crown to adjourn to investigate.
(2) R v Sonkin: A court should be slow to refuse leave to rely on alibi evidence unless significant prejudice arises to another party that cannot reasonably be addressed: R v Sonkin.
(3) R v Heuston: The court should take a flexible approach to dealing with a failure to provide notice of an alibi witness
(3) R v Blewitt: The prosecution should lead any evidence disproving the accused’s alibi evidence in chief. Failure to call it in chief may be a breach of Browne v Dunn and / or case-splitting.

Question 13

How might a question on summing up traverse both the ethics and evidence cases on the list?

Answer 13

If you get a summing up question about the judge or prosecutor asking, “why would the complainant lie?”, you can rely on the following:

• Palmer v The Queen;
• Picker v The Queen
• R v E (not in the case list);
• McKell v The Queen about the importance of a fair and balanced summing up.

Palmer and Picker are in the evidence case list.

McKell is in the ethics case list.

However, Palmer, Picker and R v E should not be interpreted as excluding arguments being put to the jury relating to the validity of the motive to lie if that has been asserted in relation to a witness in a particular case: r v Uhrig.

The distinction is that the prosecution or judge cannot ask the accused, or the jury to SPECULATE on a witness’ motive to lie.

Question 14

R v Pullen.

What is the authority? (hint: sentencing)

Answer 14

Authority that the restriction of imposing an ICO for an offence of less than two years or an aggregate sentence of less than 3, allows the court to impose an ICO for an aggregate sentence of less than three years, even if one of the sentences exceeds 2 years.

Question 15

When determining a defendant’s application for summary dismissal of the proceedings, what principles / factors will be considered by the Court?

Answer 15

This will deal with s 90(1) CPA and rule 13.4 UCPR - in relation to frivolous or vexatious proceedings.

The test for summary dismissal is typically whether the cause of action is “so obviously untenable that it cannot possibly succeed”: General Steel Industries v Commissioner for Railways.

Section 6 of the Vexatious Litigants Act should also be considered as it defined vexatious litigant.

Question 16

Setting aside default judgment.

What rules, principles and cases apply.

Answer 16

s 90 Civil Procedure Act empowers the court to give such judgment or make such order as the nature of hte case requires.

Default judgment may be made under UCPR:

• r 36.15(1) if sufficient cause is shown that hte judgment was made irregularly, illegally or against good faith;
• r 36.15(2) if by consent;
• r 36.16(2)(a).

In exercising its discretion, the court will balance:

(1) The interests of the parties; and
(2) Whether the interests of justice require that the defendant should be precluded from defending its case.

The court will consider the following factors:

(1) The regularity of the judgment;
(2) The reason for the defendant’s default and whether that was reasonable;
(3) Any delay by the defendant in seeking to have the default judgment set aside;
(4) Whether the delay has caused the plaintiff any prejudice; and
(5) Whether the defendant has a bona fide defence or there are merits to the defendant’s defence.

The above principles are outlined in Reihbner Industrial Lease & Finance v Jordan.

If the default judgment has been properly obtained, the defendant will have to show that it has a prima facie defence on the merits and explain the default: Vacuum Oil Co v Stockdale

The affidavit in support of the application to set aside default judgment should be made by someone with personal knowledge of the relevant circumstances: Palmer v Prince.

Question 17

In what circumstances may a court award indemnity costs?

Answer 17

s 98(1)(a) and (c) Civil Procedure Act - costs are in the discretion of court, including power to award indemnity costs.

r 42.5 UCPR also empowers court in relation to award of indemnity costs.

Circumstances are:

(1) As a result of some relevant misconduct of a party;
(2) Maintaining a claim once the party knew or ought to have known that there were no reasonable prospects of success;
(3) Misleading the court;
(4) Failing to accept a valid offer of compromise under r 20.26 UCPR that the offering party subsequently matches of beats - indemnity costs as per 42.14 -42.15A.
(5) Disputing a fact the subject of a valid Notice to Admit Facts that is subsequently proved or admitted.

Note: As costs are discretionary, failure to accept a reasonable calderbank offer that is subsequently matched or beaten at trial by the offeror: Calderbank v Calderbank.

Question 18

When may costs be awarded against a practitioner?

Cite one case in the answer

Answer 18

Under s 98(1)(a) Civil Procedure Act, costs are in the disctetion of the court.
s 99 CPA outlines a practitioner’s potential liability for legal costs. As per s 99(1) CPA, May be awarded if costs have been incurred:

(a) by the serious neglect, incompetence or misconduct of the legal practitioner; or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

Examples may include:

(1) Solicitor certifying that a cause of action had reasonable prospects of success when it did not;
(2) A solicitor commences proceedings without the authority of, or instructions from the client;
(3) Solicitor makes forensic or tactical legal decisions that results in an undue waste of the court’s time;
(4) Solicitor fails to act on client’s instructions in a way that would have reduced or narrowed the issues between the parties.

Relevant case is Lemoto v Able Technical.

Question 19

When might a court order a stay of proceedings?

5 marks

Answer 19

Under s 68 Civil Procedure Act (CPA), the court may, subject to the rules, order than any proceedings be stayed , either permanently, or until a specified date.

Proceedings may be stayed if:

(1) No appearance from a defendant that is out of the jurisdiction,
(2) If proceedings are commenced against a person under legal incapacity and no tutor is appointed, as per r 7.17 UCPR
(3) Proceedings have previously been dismissed and a party is liable to pay a costs order in relation to that dismissal. Proceedings are stayed under r 12.10 UCPR until the costs order is paid;
(4) If proceedings are discontinued by the plaintiff, and the plaintiff is liable to pay a costs orders in respect of the discontinuance, proceedings are stayed pursuant to r 12.4 until that costs order is paid.