Intro to Civil Dispute Resolution Flashcards
What is a civil dispute?
A civil dispute is one which arises between private parties (including governments acting in their private capacity) and excludes criminal prosecutions.
What is civil procedure?
The body of law governing litigation undertaken by private parties.
What is litigation?
Court proceedings where the outcome is determinative and is made by an independent decision-maker.
What is ADR?
Alternative means of resolving civil disputes outside of court proceedings. These include negotiation, mediation, conciliation and arbitration.
What is substantive and procedural law?
Substantive law: relating to the substance of the claim, being the issues in dispute.
Procedural law: where and how the claim is to be heard.
What are the advantages of litigation?
Provides known processes based on requirements of procedural fairness. Processes focusing on access to and delivery of evidence. Able to compel reluctant parties. Finality of judicial determination. Rule of law.
What is the civil procedure legislation in NSW?
Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW)
What is the federal court civil procedure legislation?
Federal Court of Australia Act 1976 (Cth), Federal Court of Australia Rules 2011 (Cth), Federal Circuit Court of Australia Act 1999 (Cth), Family Law Rules 2004 (Cth), Federal Circuit Court Rules 2001 (Cth), and the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth)
What is the court hierarchy in NSW?
NSW Local Court: matters up to $100,000 (small claims division up to $20,000)
NSW District Court: matters between $100,000 and $750,000
NSW Supreme Court: matters over $750,000
What is the Federal court hierarchy?
Federal Circuit Court: shared jurisdiction with Family and Federal court and no exclusive jurisdiction; jurisdiction up to $750,000 for general federal matters.
Federal Circuit and Family Court of Australia: unlimited jurisdiction for family law matters.
Federal Court of Australia: unlimited jurisdiction for federal matters.
What is an adversarial system?
Court decisions form precedent, parties control dispute, judge’s role is reactive, emphasis on oral argument and evidence, parties bear the cost of litigation.
What are the civil procedure themes or balancing competing objectives?
Efficiency (cost and delay reduction) vs due consideration (procedural fairness)
Certainty vs flexibility
Access to justice and open justice vs privacy
Autonomy vs control
What are limitation periods?
The time period within which a claim can be brought. Matter of substantive law.
Which legislation governs limitation periods?
Limitation Act 1969 (NSW)
Tortious personal injury disputes (s18A) - 3 years
Defamation (s14B) - 1 year, may be extended up to 3 years (s56A)
Actions on a deed (s16) - 12 years
Child abuse actions (s6A) - no limitation period
