QLD - Case law Flashcards
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd[2008] QSC 302 ? (Hint rationale)
Requirement for a direct explanation in denials/non-admissions per r 166 UCPR.
Requirements that a party provide a direct explanation fulfills two important functions (the rationale):
1) compels the responding party to expose, at an early stage of the proceeding, its rationale for a joinder of issue on a particular issue.
2) It compels responding party to formulate that rationale and ask “why am I denying that fact?”
Tyler v Custom Credit Corp Limited [2000] QCA 178…Provide client advice on an application to dismiss for want of prosecution….
A - Client could consider making an application to the court to exercise discretion to strike out the proceeding for want of prosecution (r 389).
B - Rational of the rule is to prevent abuse of process through unnecessary delay (see also r 5).
B - The onus is on the applicant to demonstrate it is in the interest of justice that the action be dismissed.
D - Court’s discretion is unfettered by ridged rules, however Tyler v Custom Credit Corp Limited set out 12 factors to be considered when determining whether in interests of justice to dismiss proceeding for want of prosecution.
E - In this matter there has been…
(1) when the alleged events occurred and any delay before proceedings commenced (2) when proceedings where commenced (3) prospects of success (4) failure to comply with court orders or directions (5) litigation characterised by delay (6) which party or parties responsible for delay (7) funding issues causing delay (8) whether litigation would be concluded if claim struck out (i.e. counter claim ) (9) current status of litigation (10) delay caused by lawyers being dilatory (11) satisfactory reason for delay (12) has delay resulted in prejudice to fair trial (witnesses diminished memory).
Vaughan v Bonjiorno [2007] NSWSC 1398…provide client advice on process to applying for Mareva relief (‘freezing order’).
Lawyer giving money to student to buy property matter
A - Client could consider making an application to court for Mareva relief (‘freezing order’).
B - If granted, the order would prevent the other party from disposing of the assets, or removing them from jurisdiction so that if client’s action is successful judgment can be satisfied.
C - Application will need to (1) establish a prima facie cause of action (or serious question to be tried) which depends on showing if the evidence remains as it is applicant may obtain success at trial; and (2) there is a danger of respondent absconding or assets being removed from jurisdiction.
D - In this matter…
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302 - FIX THIS UP LATER…APP PER s171 UCPR
Plane matter
Requirement for a direct explanation in denials/non-admissions per r 166 UCPR.
Requirements that a party provide a direct explanation fulfills two important
functions (the rationale):
1) compels the responding party to expose, at an early stage of the proceeding,
its rationale for a joinder of issue on a particular issue.
2) It compels responding party to formulate that rationale and ask “why am I
denying that fact?”
Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation [2016] QCA 275…provide client advice on making an application for summary judgment…
[Didnt read facts]
A - Client may consider applying for summary judgement given the defence on face value to be insufficient (r 292).
B- For the application to be successful the court must be satisfied that (1) the defendant has no real prospects of success in defending claim AND (2) there is no need to for trial of the claim or part of the claim.
C- The tests for no real prospects of successfully defending the claim direct the court
to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success (Shaw v DCT).
D - The court will be cautious when granting these applications to ensure a party is not deprived of an opportunity for the trial of their case (Shaw v DCT).
Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd [2021] QDC 74…advise the client on making an application to inspect property subject to the proceeding….
Boat matter
A - Client consider making an application to inspect and conduct test of the property for the purposes of obtaining expert report (r 250).
B - In order for the application to be successful (1) the court must be satisfied property is central to the proceeding or inspection is necessary to decide an issue in proceeding and (2) must persuade the court to exercise it’s discretion (Wilsons Ceramaics Pty Ltd)
C - The court in considering exercising it’s discretion will take into account whether there is evidence the plaintiff’s rights are being infringed (i.e. causing property damage) and that an inspection will facilitate proof of the claim (Wilsons CerAmaics Pty Ltd)
GE Automotive Financial Services Pty Ltd v Christine Judith Laverty [2008]
QDC 313…advise client about making an application to preserve property.
Car matter
Possibly amend
A - Client could consider making an application to preserve the property whilst the proceedings are on foot (r 250). This is because there is concern that the property may be disposed of or hidden.
B - The court will only impose conditions which are necessary to preserve the property pending a judicial determination (GE Automotive).
Evans Deakin P/L v Orekinetics P/L & Ors [2002] QSC 042…advise client regarding making an application to inspect property (computer, hard ware, machine ect) which may reveal intellectual property/confidentiality .
Inspect machine
A - Client could make an application to the court to allow an inspection the machine given it is central to the proceeding regarding whether infringement is occurring (r 250).
B - The court will not grant an order for inspection for a mere fishing expedition (Evans Deakin P/L)
C - The applicant will need to show (1) the inspection is required because there is a substantial and genuine issue to be tried or (2) or that there are formidable grounds for saying that infringement might well be taking place.
D - Will need to ensure that the respondents interests will be properly and adequately safeguarded should inspection order (i.e. non disclosure agreement by experts inspecting).
Spencer v Commonwealth [2010] HCA 28…advise client on how to bring application for summary judgement in CTH jurisdiction…
Farmer commenced proceedings against CTH re law/restrictions imposed on clearing vegetation on farm invalid
A - Federal jurisdiction…could make application for summary judgment of the claim (s 31A Fed Court Act).
B - Need to establish the other party has no reasonable prospects of successfully defending claim (s 31A).
C - The case may have no “reasonable prospect” of success even tho it is not hopeless or bound to fail.
D - The power to dismiss an action summarily is not to be exercised lightly (Spencer CTH)
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175…explain to the client what the court will consider when assessing an application for an adjournment of a hearing to make significant amendments to particulars of claim.
CTH
RE-WRITE
A - Applications for adjournment and amendment will take into account (1) whether it would cause prejudice by causing delay to other party, (2) case management considerations, (3) when the application is made in the proceeding (i.e. close to trial) and (4) the extent of the amendments whether they raise new claims (5) the sufficiency of the explanation given for the application (AON Risk Services v ANU)
