General Civil Procedure Flashcards
What section of the CPA allows for summary judgement?
(NB: Supreme Court Rules 2015 contain procedure).
s 64 Civil Procedure Act 2010
if satisfied that a claim (or defence)…has no real prospect of success.
What section of the SCR15 allows for judgment in default of appearance or pleading?
Order 21 Supreme Court Rules 2015 Vic
does not file …within the time limited, the plaintiff may apply for judgment.
What section of the SCR15 allows for judgment on failure to prosecute or obey order for particulars or discovery?
Order 24 Supreme Court Rules 2015
Where a party fails to comply with an order to give particulars of any pleading or with an order for the discovery or inspection of documents or for answers to interrogatories…
The state supreme courts have power to make a freezing order for potential foreign judgements (and, by extension, arbitrations).
Bayan v BCBC [2016] HCA
WA assets - litigation in S’pore - potential registered as foreign judgement.
What case did Charles Dickens describe in Bleak House (1853), in which legal costs eventually consumed the entire estate?
Jarndyce v Jarndyce
Court of Chancery - conflicting wills - ‘Jarndyce and Jarndyce drones on.’
In 2011, the ALRC estimated that discovery in Federal Court proceedings accounted for what percent of total litigation costs?
20%.
Under the common law, courts have been reluctant to order separate hearings on liability unless there is a clear line of demarcation between that issue and damages.
Tepko Pty Limited & Ors v Water Board [2001] HCA
A party cannot bring a claim which should have been pursued in the former proceedings.
Port of Melbourne Authority v Anshun [1981] HCA
Crane accident - worker sued - Anshun later seeks indemnity.
A court may grant declaratory relief.
s 36 Supreme Court Act 1986 (Vic)
…the Court may make binding declarations of right…
A freezing order preventing a debtor disposing its assets to defeat a judgement.
Mareva injunction.
The Mareva [1980] EWCA per Lord Denninng MR.
A civil search order allowing search and seizure under threat of contempt of court.
Anton Pillar order.
What is the test for summary judgement under s 64 Civil Procedure Act 2010 (Vic)?
“No real prospect of success”.
A court may order preliminary discovery to allow a plaintiff to investigate a cause of action.
r 32.05 SCR15
Improperly obtained evidence may be used to support an application for preliminary discovery if it has high probative value.
Groote Eylandt Aboriginal Trust v Skycity Darwin [2014] NTSC
Breach of trust - allegation - illegal tipoff from government official.
Litigation funding is not an abuse of process or contrary to public policy.
Campbells Cash and Carry v Fostif [2006] HCA
Recover of unconstitutional tobacco licencee fee - class action.
