Practice and Procedure Flashcards
What is the jurisdiction and monetary limit of the district court. Cite sections of the act
68(1) all personal actions where the amount being claimed does not exceed the monetary limit of the court
68(2) monetary limit is $750,000
what section of the UCPR relates to offers to settle
s 352
explain s 33 of the civil proceedings act
costs of a transfer are in accordance with the scale of costs of the court in which proceedings were pending when costs were incurred
Philosophy and overriding obligations of parties
s 5
just and expeditious resolution
avoiding undue delay, expense and technicality
In AON, it was considered critical that they provide an explanation for delay in seeking amendment
Supreme Court jurisdiction
s 58 of the Constitution of Queensland
has all jurisdiction necessary for the administration of justice.
transfer of proceedings
s 25 of the Civil Proceedings Act
(1) SC may order proceedings be transferred to the SC
(2) SC may order proceedings be transferred from the SC
s 33
Unless otherwise ordered, if transferred, costs are in accordance with the scale of the court proceedings were pending before transfer. Costs may be awarded before or after the transfer.
transfer of proceedings
s 25 of the Civil Proceedings Act
(1) SC may order proceedings be transferred to the SC
(2) SC may order proceedings be transferred from the SC
s 33
Unless otherwise ordered, if transferred, costs are in accordance with the scale of the court proceedings were pending before transfer. Costs may be awarded before or after the transfer.
Commercial list practice direction
What’s the purpose?
What type of matters?
Estimate of trial?
How do you get on the list?
When was the direction created?
Purpose: effect expeditious resolutions to commercial matters.
Must be commercial in character or arise in trade or commerce.
Trial estimate must be 5 days or less.
To get on the list: you should first seek the consent of your opponent; a listing application should be made by application; after the claim is served; application must have a listing statement in support (schedule A to PD); prepare a draft order on return of the application.
No 3 2002
Freezing orders practice direction
Is it necessary to be a party to a proceeding?
How long do orders stay in effect?
What should a respondent do if they want to challenge an order after being served?
What can you not freeze?
How should you present the information to the court?
Where will I find orders?
When was the direction created?
Any undertakings?
A third party will not necessarily be a party to the substantive proceeding (Cardile v LED
Builders), but may be a respondent to the application for the freezing order.
Until the first return date, which is when the respondent will have an opportunity to the be heard.
The order should reserve liberty to apply for the respondent.
Assets that the respondent may need to live, pay a lawyer, pay business expenses.
By affidavit.
The appendix to the PD.
No 1 in 2007.
Yes, as to compensation/costs, and also to file, inform everyone, pay anyone and keep everyone informed, and the implied Harman undertaking. Undertakings found in Schedule A.
Search orders practice direction
What is unique about a search order?
Can applicant’s solicitor attend the search?
What is something that ought to be accounted for in any affidavit?
Who is responsible for serving the order?
Where will I find orders?
When was the direction created?
Any undertakings?
Court will order that an independent solicitor or computer expert attend the search and the applicant is not permitted to attend without a Court order.
The applicant’s solicitor can attend but must give undertakings not to disclose search to client.
Identify any vulnerable person likely to be on the premises.
The independent solicitor should serve the order and offer to explain it to the respondent.
The appendix to the PD.
No 2 in 2007
Yes, as to damages, among others
Supervised case list practice direction
What is the purpose of the PD?
What cases will be listed?
How do you get on the supervised case list?
When was the direction created?
Provide parties with an explanation and direction of a supervised case and inform parties of what is expected of them.
Where, in a request for a trial date, it’s estimated that the case will run 5 days or longer, the registry will refer the matter to the supervised case list. A request to be listed on the supervised case list can be made at any time to the supervised case list manager. Or, a judge may order a case be placed on the SCL. In these circumstances, the questionnaire which is annexed should be filled out.
Cases with an estimate of 5 days or longer or which will impose greater than normal resources.
Fill out the questionnaire in the PD and provide to the Supervised Case List Manager.
No 11 in 2012.
Vaughan v Bongiorno
What was the application for?
What were the judges reasons for his decision?
What test did the judge follow?
Application for mareva relief was dismissed with costs.
Evidence of the loans was oral and did not succeed in giving versions that the loans were repayable on demand (indirect speech). Just because the evidence was laid before him did not mean he was required to act on it. It was inadmissible and would not be admitted at trial.
The test for mareva relief is Patterson v BTR and has two limbs:
1. Prima facie case (if evidence remains as is, the plaintiff will be entitled to relief) Beecham v Bristol
2. if plaintiff succeeds at trial, judgment will not be satisfied
“First limb was not satisfied. No evidence before the Court which the judge could act on.”
Tyler v Custom Credit
What section of the UCPR is relevant?
What were the facts of the case?
What test is applied in such circumstances?
Delay in prosecution s 389 of the UCPR
3 years had elapsed since the last step in the proceedings. The respondent filed an application seeking leave to proceed under 389(2). The appellant’s sought to have the application dismissed for want of prosecution. The appellants case was based on the chamber judge’s application of the test, which they say was done incorrectly. However, the appeal was dismissed with costs.
The test: “…whether the plaintiff has satisfied the onus of showing that, any prejudice the defendant may suffer, is not such to cause injustice.”
There are 12 factors a court will take into account when deciding whether a case should be dismissed.
Cape York v QBE
What section of the UCPR is relevant?
What is the purpose of the above rule?
What was the decision?
Application to strike out pleadings (under 171) for bad form; non-compliance with rule 166, being, that there was no direct explanation for a denial or non admission.
Daubney J said “…the purpose of the rule is to achieve early comprehensive disclosure of the cases to be mounted by each party. Observes the aspirational purpose of rule 5.”
The paragraph of the defence did not comply and application under 171 was successful
Shaw and Rablin v Deputy Commissioner of Taxation
What section of the UCPR is relevant?
Brief outline of the facts?
What did the judge say?
How can the test be summarised?
Appeal against summary judgment under section 292.
Company directors owed debts to the DCoT.
The directors propounded evidence in support of a defence but summary judgement was entered in favour of the DCoT.
“There was evidence before the Court that warranted enquiry at trial. To make decisions on those questions without proceeding to trial would substitute the test under s 292.”
Is there a need for a trial.
