Legislative Provisions Flashcards
UCPR 6.3
Where a statement of claim is required
(b) tort
(d) proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include—
(i) damages in respect of the death of any person, or
(ii) damages in respect of personal injuries to any person, or
(iii) damages in respect of damage to any property,
(h) proceedings on a claim for relief in relation to the publication of defamatory matter,
UCPR Pt 10
Service of Documents Generally
UCPR Pt 11
Service of Documents Outside of Australia and Service of External Process
UCPR Pt 11A
Service Under the Hague Convention
UCPR Pt 13
Summary Disposal
UCPR Pt 14
Pleadings
UCPR 14.28
circumstances in which court may strike out proceedings
UCPR Pt 15
Particulars
UCPR Pt 16
Default Judgement
UCPR Pt 17
Admissions
UCPR Pt 19
Amendment
UCPR Pt 20 Div 4
Resolution of Proceedings without Hearing: Compromise
UCPR 42.14
Where offer not accepted and judgment no less favourable to plaintif
UCPR 42.15
Where offer not accepted and judgment no more favourable to plaintiff
UCPR 42.15A
Where offer not accepted and judgment no less favourable to defendant
UCPR Pt 21
Discover, inspection and notice to produce documents
UCPR Pt 25
Interim Provisions: Freezing and Search Orders
UCPR Pt 29
Trials
UCPR Pt 33
Subpoenas
UCPR Pt 35
Affidavits
UCPR Pt 36 Div 1
Judgements and Orders: General
UCPR Pt 36 Div 4
Judgements and Orders: Setting aside and variation of judgments
UCPR Pt 42 Div 1
Entitlement to Costs
UCPR 42.21
Security for Costs
UCPR 50.8(2A)
Security for Costs
(2A) If an appellant or cross-appellant fails to comply with an order under this rule, the court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.
UCPR 51.50(2A)
Security for Costs
(2A) If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.
CPA Pt 4
Mediation
CPA Pt 5
Arbitration
CPA s 56
Overriding purpose
facilitate the just, quick and cheap resolution of the real issues in the proceedings.
CPA s 57
Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
CPA s 59
Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
CPA s 58
Court to follow dictates of justice
(must take into account the requirements in ss 56-57)
CPA Pt 8
Enforcement of Judgment and Orders
CPA Pt 10
Representative Proceedings in the Supreme Court
(Class actions essentially)
CPA s 64
Amendment of documents generally
(1) At any stage of proceedings, the court may order—
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.
(5) This section does not apply to the amendment of a judgment, order or certificate.
CPA s 66
Adjournment of proceedings
(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
(2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.
CPA s 91
Effect of dismissal of proceedings
(1) Dismissal of—
(a) any proceedings, either generally or in relation to any cause of action, or
(b) the whole or any part of a claim for relief in any proceedings,
does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings.
(2) Despite subsection (1), if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief in the proceedings, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court.
CPA s 99
Liability of legal practitioner for unnecessary costs
CPA s 100
Interest up to judgment
CPA s 101
Interest after judgment
CPA s 98
Court’s power as to costs
(1) Subject to rules of court and to this or any other Act—
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
Evidence Act s 118
Legal advice privilege
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Evidence Act s 119
Litigation privilege
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Evidence Act s 121
Loss of client legal privilege: generally
(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.
(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.
(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.
Evidence Act s 122
Loss of client legal privilege: consent and related matters
Can lose privilege by consent of client or if the client acts inconsistently with the maintenance of the privilege.
Evidence Act s 126A
Definitions: Professional Confidential Relationship Privilege
protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant)—
(a) in the course of a relationship in which the confidant was acting in a professional capacity, and
(b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
protected confider means a person who made a protected confidence.
Evidence Act s 126B
Exclusion of Evidence of Protected Confidences
Evidence Act s 128
Privilege in Respect of Self-Incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and
(b) that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4), or
(ii) the witness gives the evidence after being required to do so under subsection (4), and
(c) of the effect of such a certificate.
Evidence Act s 128A
Privilege in Respect of Self-Incrimination - exception for certain orders etc
Disclosure orders are an exception. Below is the process for revealing the privileged information about self incrimination:
(2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty,
the person must—
(c) disclose so much of the information required to be disclosed to which no objection is taken, and
(d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope, and
(e) file and serve on each other party a separate affidavit setting out the basis of the objection.
(3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.
(4) The court must determine whether or not there are reasonable grounds for the objection.
UCPR 42.1
Costs follow the event: winner gets costs
UCPR 42.2
Costs are assessed on the ordinary basis unless the court orders otherwise or the rules provide otherwise (in which case it would be indemnity costs).
