Study notes > Pratice and procedure > Flashcards
Pratice and procedure Flashcards
UCPR r171
Striking out pleadings
UCPR rr209-227
Disclosure
UCPR rr242-249
Non-party disclosure
UCPR r250
Inspection, detention, custody and preservation of property
UCPR r280
Default by plaintiff
UCPR rr292-293
Summary judgment
UCPR rr366-367
Directions
UCPR r371
Effect of failure to comply with rules
UCPR rr375-381
Amendment
UCPR r389
Continuation of proceeding after delay
UCPR r390
Way evidence given
UCPR rr423-429V
Expert evidence
UCPR rr430-441
Affidavits
Civil Proceedings Act 2011 - ss25, 33
Transfer by Supreme Court from or to District Court of Magistrates Court - s25
s33 deals with costs which follow
Supreme Court PD1/23
Commercial list
-Placed on list if general commercial character or arise out of trade and commercial
-Matter allocated to an identified Commercial list judge
-Removed at discretion of CL judge
-Three types: fast track requiring urgent resolution, less than 5 days or more than 5 days
-Detailed applications, first review, second review processes
-Judgment within four weeks where <5 day trial
Supreme Court PD1/07
Freezing orders (aka Mareva orders or ‘Asset protection orders’)
-Chapter 8, Part 2, Div 2
-r260D addresses minimum requirements which must be satisfied.
-Value of assets covered should not exceed maximum likely amount of claim
-Should reserve liberty for respondent to apply on short notice (application by respondent to discharge or vary a freezing order will normally be treated as urgent)
-Includes proforma freezing order
Supreme Court PD2/07
Search orders (aka Anton Piller orders)
-Chapter 8, Part 2, Div 3
-Searching party must include independent solicitor as supervisor
-Sets out contents of affidavits for application for search order and independent solicitor’s responsibilities
-Should be served between 9am and 2pm to permit respondent to obtain legal advice
-Applicant must give appropriate undertakings, including not to disclose any information acquired without leave
Supreme Court PD11/12
Supervised case list
-Placed on list if a party estimates hearing will take >5 days or will place greater than normal demand on resources because of time/complexity/number of parties
-Party can request to be put on SCL or judge may place on SCL
-When comes before SCL judge, will determine whether directions should be made to vary UCPR disclosure provisions, document management arrangements, eTrial or ADR procedures
Vaughan v Bongiorno [2007] NSWSC 1398
Mareva freezing orders
Male solicitor gave female defendant (sexual relationship) $1M to buy property. Male sued to recover, submitting money was given as loans. Sought Mareva relief.
Must establish (i) a prima facie case and (ii) a danger that by absconding or asset removal/sale plaintiff will not have judgment satisfied.
Failed to demonstrate prima facie case that transactions were loans. Evidence ‘utterly inadmissible’ and pointed to loans needing to be repaid upon sale of properties. Mareva relief declined.
Tyler v Custom Credit Corp Limited [2000] QCA 178
Application for leave to proceed under r389
$1.17M loan by appellant to respondent in May 1984. On 24 September 1999, the Chamber judge granted leave to proceed under r389.
Appellant submitted judge (i) could not have been satisfied that the plaintiff gave a satisfactory reason for the delay and (ii) discounted the significant prejudice likely to be suffered by the appellant because of the inordinate delay.
But not all delay was caused by the respondent, and respondent appeared to have tried to push his action along but was offered false assurances by his solicitors.
Even if the respondent’s claim were struck out, the appellant’s counterclaim would continue, meaning that strike out would not put an end to this litigation.
Atkinson J dismissed appeal. Gave long list of matters to consider including:
- how long ago the events alleged in the SOC occurred and what delay there was before the litigation commenced;
- how long ago the litigation commenced or causes of action were added;
- the plaintiff’s prospects;
- disobedience of Court orders or directions;
- whether litigation characterised by periods of delay;
- who the delay is attributable to;
- whether the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for that;
- whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- how far the litigation has progressed;
- whether or not the delay has been caused by the plaintiff’s lawyers (delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain);
- whether there is a satisfactory explanation for the delay; and
- whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
Chamber judge correctly tested prejudice, noting that the test is whether the plaintiff has satisfied the onus of showing that any prejudice the defendant may suffer is not such to cause injustice to the defendant should the action be permitted to continue.
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302
Direct explanation for denials in defence per r166(4)
Daubney J:
The elements of r166(4) ought be read disjunctively as follows:
-a denial must be accompanied by a direct explanation for the party’s belief that the allegation is untrue, and
-a non-admission must be accompanied by a direct explanation for the party’s belief that the allegation cannot be admitted.
But the requirement for a direct explanation for a denial fulfils two important functions:
1. compels the party to expose, at an early stage of the proceeding, its rationale for a joinder of issue; and
2. compels the party to formulate that rationale - i.e. the party must ask itself, and be able to answer the question, “Why am I denying this fact?”
Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation [2016] QCA 275
Application for summary judgment
The facts are sufficient to warrant a conclusion that a possible defence is potentially available. It is not ‘a mere fanciful defence’. There is a need for a trial.
The primary judge expressed scepticism towards the defence. Serious questions might well be posed. But they are appropriate to be made at trial. Posing them now would risk error by substituting such a test for the one of ‘no real prospects’ set by r292.
Application remitted to the trial division for further consideration.
Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd [2021] QDC 74
Application for inspection order under r250
Consideration of whether the order ‘should’ be made. Court ultimately declined to make order because:
-defendant did not adequately demonstrate that the testing will not compromise the integrity of the hull as their expert (a naval architect) was not appropriately qualified re same, and his evidence was unpersuasive and failed to meet the Makita v Sprowles standard (i.e. he failed to explain the basis for his opinions)
-defendant’s argument that the plaintiff would adopt a certain position and criticise their testing was not a reliable assumption, particularly as the plaintiff had received numerous further reports since the director of the plaintiff had given a report initially (which the defendant was assuming would form the basis of the plaintiff’s position
-it was unclear whether the further testing would actually have assisted in the determination of the legal dispute
GE Automotive FInancial Services Pty Ltd v Christine Judith Laverty [2008] QDC 313
Application for preservation under r250
Plaintiff commenced (but had not served) proceedings against the defendant seeking to recover a car the subject of a loan agreement and chattel mortgage, and judgment for an amount payable under the agreement.
Plaintiff alleged defendant was in default in ‘various ways’ and was concerned the plaintiff might dispose of or hide the car. McGill DCJ noted there was ‘reasonable foundation’ for those concerns.
McGill DCJ prepared to make the order, but spent some time amending the draft orders.
1. Could not order that plaintiff could enter any premises and seize a vehicle as it would extend to third party premises.
2. Order re defendant providing an affidavit was limited in scope to that reasonably necessary.
3. Draft included a term that defendant deliver the vehicle, but not requirement to do so and cost/time should be incurred by plaintiff.
4. Draft proposed order that plaintiff not sell vehicle within 28 days of service of C+SOC. McGill DCJ noted this was unnecessary given r250.
Evans Deakin Pty Ltd v Orekinetics Pty Ltd & Ors [2002] QSC 042
Application for inspection under r250
Manufacturing machines which separated titanium from sand. Defendants left plaintiff, started own company, and machines remarkably similar.
Defendants released advertising brochure 3-4 months after leaving spruiking a large number of ‘revolutionary’ developments. Also lodged four patent applications within same period.
Defendants opposed r250 application on the basis plaintiff had not made out a case and there was a ‘paucity’ of evidence.
Chesterman J ordered inspection because:
-machines were clearly property about which questions may arise int he proceedings;
-inspection would be necessary and defendants ‘all but concede’ an inspection will be required at some point
-defendants’ machines were available for sale, meaning plaintiff could simply buy one
-discretion in r250 was wide and here would promote efficient/economic litigation
-only requires there be ‘some evidence’ that plaintiff’s rights are being infringed and inspection will facilitate proof
-plaintiff was not going to inspect itself but send its solicitors and two experts who would all sign confidentiality agreements
Defendants objected to inspection of the Corona-Stat machine on two bases:
1. developed later and ‘more tenuous connections’. Chesterman J rejected noting it was plausibly alleged to be an advance on the earlier machine made possible by the unlawful use of the plaintiff’s commercial information
2. machines had been sold and not in defendants’ possession. Chesterman J considered that could be overcome by the defendants providing the plaintiffs with details of the purchases and the locations of the devices
UCPR rr8-14
Starting proceedings
UCPR rr149-168
Pleadings - rules of pleading, particulars and progress of pleadings
UCPR rr352-365
Offer to settle
