Rules UCPR

Question 1

Starting proceedings rule?

Answer 1

Rule 8; starting proceedings.

Question 2

What are the types of originating process under UCPR provided for by the rules, and what rule?

Answer 2

Rule 8:
- claim
- application
- notice of appeal
- notice of appeal subject to leave

Question 3

What is an application in, about or pending trial, hearing or outcome, and is that an originating process? What rule?

Answer 3

Rule 8: Interlocutory application, not an originating process.

Question 4

Why is it important as to when a proceeding precisely commences? What rule contemplates this?

Answer 4

Significant as statutes require certain steps be done prior to proceedings being instigated.

Question 5

How must a proceeding be started generally? What Rule

Answer 5

Rule 9: Claim compulsory, unless rules permit proceeding started by application.

Question 6

When is a proceeding not started by claim generally, what are the requisites? What rule?

Answer 6

Rule 10: Application compulsory where person applies to court for order or relief:
(a) the act/rules do not say type of originating process to be used or
(b) a type of originating process (other than claim or application) is required/permitted under a law

Question 7

When can a proceeding be commenced by application? What rule?

Answer 7

Rule 11: Application permitted.
(a) only/main issue is an issue of law & substantial dispute of fact unlikely; or
(b) no opposing party, or not intended to serve a party with the originating process;
(c) there is insufficient time to prepare a claim because of urgency

Question 8

What originating process ought be used for recovery of debt?

Answer 8

Ordinarily claim, if involving substantial disputes of fact.

Question 9

When can an oral application be done? What Rule?

Answer 9

Rule 12: Oral Application permitted;
(a) urgent relief sought; and
(b) lawyer undertakes to file an application within time directed by the Court; and
(c) Court considers it appropriate

Question 10

What happens if a party incorrectly commences a proceeding by claim or it might be more convenient to have the proceedings started by application? What Rule?

Answer 10

Rule 13: proceeding incorrectly started by claim.
(1) if court considers proceeding ought to have been application, or would be more convenient to continue as application;
(2)(a) Court can order proceeding continue as if started by application; and
(2)(b) give directions for conduct of proceeding;
(2)(c) make other order considered appropriate

Question 11

What happens if a party incorrectly starts proceeding by application, or it is more convenient to have the proceeding continue as if started by application? What rule?

Answer 11

Rule 14: proceeding incorrectly started by application - court can order proceeding continue as if started by claim if it should have been started, or more convenient to do that and order that any affidavits filed be treated as pleadings, alone or supplemented by particulars.

Does the matter require resolution of factual issues.

Question 12

What happens if an originating process is an abuse of process, frivolous or vexatious?

Answer 12

Rule 15: Registrar may refer issue of originating process to court;

Registrar can refer originating process to the court and court can direct registrar to issue or refuse to issue it without leave of the court.

May cases may be abuse of process/vexatious but this rule only contemplates those most blatantly identified

Question 13

Anshun case?

Answer 13

For rule 15; registrar refuse to issue originating process;

Abuse can include attempt to re-litigate matter or where relief could have been sought in previous proceeding.

Question 14

In what circumstances can the Court set aside an originating process? What rule?

Answer 14

Rule 16: Setting aside originating process;
Court can:-
declare not been properly started
declare not properly served
set aside order for service for OP
set aside order extending service period for OP
set aside OP
set aside service of OP
stay proceeding
set aside or amend an order under rr 126(1) 129G(1)
make other order court considers appropriate

NB: rule 371, failure to comply is irregularity, not nullity

Question 15

How is the court guided when setting aside an originating process? What rules?

Answer 15

Rule 16: Setting aside originating process;
Rule 5; guides the court, so application to set aside that alleges minor technical faults in drafting or service not likely to be entertained

Question 16

What is an unconditional intention to defend? What Rule

Answer 16

R 144: Conditional notice of intention to defend
deft who wants to challenge jurisdiction of court, or assert irregularity, must file conditional notice to defend and apply for order under r 16 within 14 days.

This does not apply to objecting to starting a proceeding in a district of a court other than rule 35.

Question 17

What are the requirements of statements in pleadings? What Rule?

Answer 17

Rule 149: Statements in pleadings;
- be brief as the case permits (avoid prolixity)
- statement of all material facts the party relies, but not evidence those facts are to be proved by
- state specifically any matter, if not stated, would take the other party by surprise
- sub to r 156 (Court power to grant general relief) state the relief sought
- if claim or defence under an act is relied on - identify it

• Party can also plead a conclusion of law, raise a point of law, if the party pleads the material facts that support the conclusion or point

Question 18

What is a pleading for a plaintiff? What rule?

Answer 18

UCPR Dictionary: Pleading for plaintiff defined - concise statement in a claim of the material facts on which plaintiff relies.

Question 19

Where does a pleading go, for a plaintiff? What rule?

Answer 19

UCPR Dictionary: Pleading goes into a claim for the plaintiff.
Claim is defined as a document under ch2 pt3 starting a proceeding, r 22, which includes a statement of claim.
Therefore pleadings for plaintiff can go into the statement of claim, attached to a claim.

Question 20

Cousins Securities Case
Pleadings

Answer 20

pleading must allege all the material facts required to formulate a complete cause of action known to law but, subject to some specific requirements

Pleading must not simply allege all evidence, but must specifically plead any relief sought.

Question 21

What is the principle function of pleadings?

Answer 21

Define the issues in dispute between the parties; and
apprise each party of the other’s case for trial.

Question 22

Robinson v Laws
Pleadings

Answer 22

For pleadings, rule 149, pleadings that are prolix/execessively repetitious can be struck out, esp if avoidable by simple drafting techniques, as will be a breach of requirement to be brief.

Question 23

What is important about pleading material facts? What rule?

Answer 23

Rule 149(1)(b) - material facts to be plead not evidence by which those are to be proved.
Pleading consecutive propositions of evidence will likely breach

Question 24

Melco Engineering Case
Pleadings

Answer 24

If a party pleads evidence, instead of material facts, the other party is not obligated to respond to that, and will not amount to deemed admission pursuant to rule 166

Question 25

UI International Case
Pleadings

Answer 25

For overlap in rule against pleading evidence and obligation to plead something to avoid taking party by surprise (r149(1)(c)). Seems permissible for the latter to plead extrinsic evidence or context to be admissible in aiding construction of contract.

Question 26

What matters are to be specifically pleaded? What Rule?

Answer 26

Rule: 150, matters to be specifically pleaded (not limiting 149).
(a) breach contract
(b) all damages claimed
(c) limitation defence.
(d) duress
(e) estoppel
(f) fraud
(g) illegality
(H) interest for damage
(i) malice or ill will
(j) mis prepresntation
k (motive, intention, other condition of mind
(l) negligence or contributory negligence
(m) payment
(n) performance
(o) part performance
(p) release
(q) undue influence
(r) voluntary assumption of risk
(s) waiver
(t) want of capacity
(u) testator not know/approve will contents
(v) will not properly made
(w) wilful default
(x) anything else required by form or PD

Question 27

What is the consequence of not pleading a specific matter enumerated in R 150?

Answer 27

Rule 150: if pleader fails to plead a matter that is specifically enumerated, may be precluded from leading that evidence or cross examining witnesses.

Question 28

Illustrate by example of cause of action for contract breach to recover damages, how the matter pleaded in accordance with rr 149, 150?

Answer 28

Per 149; allege; parties, the contract (and consideration), terms, terms breached, and loss suffered. This would satisfy this general rule.

Per 150; in advancing that cause of action (if relevant) plaintiff would need to plead motive, or intention or condition mind etc.

Question 29

Rule 150 requires what two categories of things to be specifically pleaded?

Answer 29

A list of enumerated things, and per sub (2) any matters are claimed to be an inference under sub (1) must also be claimed.

Question 30

What happens if a pleader complies with r 150(1) but not r 150(2)?

Answer 30

At trial the party may not be able to rely on inferences which otherwise might have been available to it

Question 31

What are the pleadings rules and their interrelation for damages pleadings?

Answer 31

R 150(1)(b) requires every type of damage be pleaded.

R 155 requires nature/quantim of damages to be pleaded.
For general damages must include nature of loss/damage suffered AND the circs in which it was suffered AND basis the quantum has been calculated.

Pleader should note that the defendant is entitled to identification of the causual link between their impugned conduct and the plaintiff’s loss.

Question 32

What is R 150(4) about?

Answer 32

In a defence or a pleading after a defence a party must speficially plead a matter that:

(1) matter that makes a claim or defence not maintainable
(2) shows transaction is void or voidable
(3) if not pleaded might take a party by surprise
(4) raises a question of fact not previously claimed

Question 33

How might r 150(4) operate when it comes to a breach of contract procceding?

Answer 33

If a defendant pleads illegality, duress or fraud as a defence, then this rule requires the plaintiff to respond because defence have raised a new issue.

If the argument was however that one party reads a contract one way and the party reads it another, there is no reply necessary. Would involve repleading the facts.

Question 34

Rule 151?

Answer 34

Presumed facts; party does not have to plead a fact if the law presumes it in their favour or the burden of proving the fact does to lie with the party.

This does not apply if it is necessary to plead the fact to comply with rule 149 or meet a denial by another party.

Question 35

What’s an example of a presumption per rule 151?

Answer 35

In defamation proceeding, Falsity of defamatory words is presumed and burden of proving truth is on the defendant.

Question 36

How are spoken words and documents to be pleaded? What Rule? And why?

Answer 36

R 152: Spoken words and documents.
pleading may state the effect of the words or document, as briefly as possible, unless precise words are material.

Rationale; to overcome prolix.

Question 37

What rule 152, when might precise words be material, and what is the consequence of that?

Answer 37

In defamation action, precise words are material and r 152 not enlivened.

Question 38

What rule governs ‘condition precedent in pleadings’ and what does it provide?

Answer 38

R 153 Condition precedent.
(1) allegation of performance/occurrence of condition precedent is implied in party’s pleading
(2) party who denies performance/occurrence must specifically plead it

Question 39

What is condition precedent?

Answer 39

condition agreed between the parties or imposed by statute, that must come to pass, before party entitled to succeed in an action

Question 40

What’s important in distinguishing condition precedent from material fact? Think about the council rates case?

Answer 40

For r 153, condition precedent must be distinguished from material fact that must be pleaded. Court in Gilbert’s case; council’s right to sell land under law for rates arrear must be specifically pleaded.

Question 41

What are some examples of condition precedents for the purpose of rule 153?

Answer 41

Readiness and willingness allegation, by party claiming specific performance of contract (so would be implied).

Readiness and willingness is also an element of cause of action however may be treated as a condition precedent for pleading purposes.

Fulfilment of a condition precedent to an insurer’s liability need not be pleaded in a claim.

Question 42

What rule governs inconsistent allegations or claims in pleadings?

Answer 42

R 154; Inconsistent allegations or claims in pleadings.

Question 43

Where might a pleading draft be sloppy when it comes to inconsistent allegations or claims in pleadings? What Rule?

Answer 43

Rule 154: Inconsistent allegations or claims in pleadings.

words “further or alternatively” or “further and alternatively”. If subsequent plea to the one before is inconsistent, must only be advanced as “alternatively.”

Question 44

What happens if a party purports to allege inconsistent allegations or claims but they’re really pleading an inconsistent factual basis? What Rule?

Answer 44

Rule 154:Inconsistent allegations or claims in pleadings.

Cannot plead an inconsistent factual basis (Issitch Case).

Question 45

What happens if a party tries to plead something as an alternative but it is within their knowledge? What case and what rule is concerned?

Answer 45

Rule 154: inconsistent pleadings.
Issitch Case

Party will not be permitted to plead two sets of alternative facts, where one version of the facts must be known to be false?

Question 46

Can a subsequent pleading by the same party be inconsistent with a previous pleading? What Rule?

Answer 46

Rule 154(2): no cannot be inconsistent, unless prior pleading amended.

Question 47

What is the issue with global damages to all aspects of the actionable conduct by the plaintiff? What rule?

Answer 47

Rule 155(1),(2): Damages
Must plead the nature of damages flowing from each aspect of actionable conduct.

Question 48

How should a plaintiff distinguish in pleadings, matters relating to various classes of damages sought?

Answer 48

Rule 155(1),(2): Damages
Should be distinction in pleadings between the different matters relied upon for claims of different classes of damages?

E.g. party would be required to plead separate facts to support each claim for general, exemplary, and aggravated damages (esp if a joint plaintiff is a corp and not entitled to aggravated damages.

Not sufficient to plea an intention to provide a statement of loss or plead “true value” is a matter of expert opinion and an expert report will be provided.

Question 49

What is the consequence for not complying with rule 155?

Answer 49

Rule 155: damages
failure to comply will lead to a request or order for particulars, rather than pleading being struck out (DOGZ Online Case).

Question 50

Are you confined to receiving relief only as specifically sought? What rule might apply?

Answer 50

Rule 156: General relief.
Previously, plaintiff could not seek relief inconsistent with that expressly applied for, however under this rule court can grant relief if supported by the evidence, and it does not constitute a new cause of action.

Question 51

What rules governs particulars in pleading and what is their rationale?

Answer 51

Rule 157: Particulars in pleadings.
pleading must include particular necessary to;
(a) define issues for, prevent surprise at trial
(b) enable the opposite party to plead
(c) support a matter specifically pleaded under r 150.

The purpose of particulars is to add context and depth to the pleaded material facts. Particulars are not evidence,
but clarification.

Question 52

What are some examples of causes of action observing the pleadings rule?

Answer 52

Contract breach: must plead the fact of the contract (150), the particulars of whether the contract was written, oral or partly written/oral

Question 53

What is the rule for particulars of damages?

Answer 53

Rule 158: Particulars of damages
(1) if a party claims damages including money paid or liable to pay, pleading must contain particulars of the payment
(2) if a party claims exemplary or aggravated damages, party’s pleading must contain particulars of all matters relied on in support of the claim

Question 54

What rule governs particulars for interest?

Answer 54

Rule 159: Interest
A claim for interest must be sufficiently particularised to permit the party responding to the pleading to make a reasonable determination of the amount being claimed. Ambit, claims for damages which are not particularised may now be struck out as non-compliant with r 159.

Question 55

How are particulars to be given if required, or if further particulars? What Rule?

Answer 55

Rule 160: Way to give particulars
(1) if rules 157-159 require particulars to be given, must be stated in pleading, or if inconvenient, separate document mentioned in and filed with the pleading
(2) further particulars may be given by correspondence
(3) a party giving further particulars must file a copy of the particulars

Question 56

What can a party do if they are not satisfied with the particulars of the opposite party’s pleading?

Answer 56

Rule 161: Application for order for particulars.
(1) party may apply to court for order for further and better particulars.
(3) making of an application under this rule does not extend
(4) particulars required under an order under this rule must repeat the relevant part of the orders so the particulars are self-explanatory

Question 57

When can pleadings be struck out? What Rule?

Answer 57

Rule 162: Striking out particulars
if a particular
(a) has tendency to prejudice or delay the fair trial
(b) is unnecessary or scandalous
(c) frivolous or vexatious
(d) an abuse of process of the court
(2) - court may strike out the particular and order the costs of the application to be paid on the indemnity basis.

Particulars may be liable to be struck out if they are non-responsive to a request for particulars or add nothing to what has already been pleaded.

Question 57

What the consequence of the failure to give particulars, after being ordered to do so? What rule?

Answer 57

Court may make the order, including a judgment it considers appropriate.

Question 58

What is the time for serving answer to counterclaim and reply? What rule?

Answer 58

r 164:
Answer to counterclaim - 14 days after the day counterclaim is served OR
if deft for counterclaim not an original party, 28 days after counterclaim is served

Any reply must be filed 14 days after the day of the service of the defence or answer to the counterlaim.

Question 59

How can a party respond to a pleading? What rule?

Answer 59

r 165: Answering pleadings
Can plead a denial, nonadmission, admission, or another matter.

Question 60

What is the evidentiary consequence of pleading a non-admission? What rule?

Answer 60

r 165(2): Answering pleadings
cannot call or give evidence for a fact not admitted, unless evidence relates to another part of the party’s pleadings.

Question 61

When is an allegation of fact taken to be admitted by the other party? What rule?

Answer 61

R 166(1): Denials and nonadmissions
(1) taken to be admitted unless a denial or nonadmission is pleaded
or rule 168 (last pleading, before pleadings closed, implied nonadission).

NB: no auto admission if person lacks legal capacity

Question 62

What are the requisites to a party pleading a non-admission? What Rule?

Answer 62

R 166(3): party can only plead nonadmission:-
If Party made reasonable enquires to find out whether the allegation is true or untrue, having regard to time constraints

AND

r 166(4) nonadmission or denial must be accompanied by a direct explanation for the party’s belief as such

Question 63

What happens if a party makes a non-admission or a denial and does not accompany that with an direct explanation? What rule?

Answer 63

r 166(5) - no explanation rule compliance, the party is taken to have admitted the pleadings.

Question 64

What must a party do after the making of a non-admission in relation that?

Answer 64

Obligation to make further inquiries that may be reasonable to render it an admission or denial, and if so ammend the pleadings.

Question 65

What is reasonable for the purpose of reasonable enquires for making a nonadmission?

Answer 65

No definite authority, however not conferring with a co-defendant represented by the same legal team has found to not be reasonable.

Question 66

What is the issue cause by r 166(4) insofar as pleading denials and evidence is concerned?

Answer 66

R 166(4) requires explanation for a denial (inter alia) which seems to require a statement of evidence to be lead by the denying party. This is in conflict with r 149, not to plead evidence. This should be seen as an exception to the no evidence rule.

Question 67

Where might a pleader fall short in the way they draft the explanation for a denial? What rule is concerned?

Answer 67

R 166(4).
Mere statement to the opposite of what is alleged is not adequate to be a direct explanation for a denial. more is needed. Groves’ case.

Question 68

Is there any recourse for a deemed admission at trial?

Answer 68

Yes, if the evidence under cross fails to substantiate the facts of the deemed admission, would be an injustice to let them stand. (Barker v Linklater).

Question 69

Can a party plead alternatively a denial and non-admission?

Answer 69

No, has to be one or the other

Question 70

What happens if a court considers an allegation of fact denied, or not admitted ought to have been admitted?

Answer 70

Court can order the party who denied, or nonadmitted unreasonably to pay costs.

Question 71

What happens to pleadings filed last before the close of pleadings, insofar as admissions, denials and non-admissions are concerned? What Rule?

Answer 71

R 168: Implied non-admission
These are deemed to be non-admissions for which the respective party is not entitled to lead evidence. Party can amend this to an admission however.

Question 72

When do pleadings close? What rule?

Answer 72

R 169: Close of pleadings
On service of a pleading is served after the defence, or answer to a counterclaim, OR,
14 days after service of the defence

Question 73

What can happen if a plaintiff commences proceedings, and after that a defence arises for the defendant not previously available? What Rule?

Answer 73

r 170: confession of defence
If defendant alleges defence arose after commencement, plaintiff can file an serve a confession of defence and with that obtain costs up to the day the defence was served.

Question 74

In what circumstances can pleadings be struck out? What rule?

Answer 74

Rule 171 Striking out pleadings
- If there is no reasonable cause of action/defence
- prejudicial or delaying
- unnecessary scandalous, frivolous or vexatious
- abuse of process

costs can be awarded

Question 75

What is the time to serve an answer to counterclaim and reply? What rule?

Answer 75

r 164: time for serving answer to counter claim and reply:
Answer to counterclaim to be filed and served 14 days after counterclaimed served or 28 days if the defendant is not an original party

Question 76

What proceedings does disclosure apply to? What rule?

Answer 76

by claim, or one changed to be started by claim or even an application if the court directs.

Question 77

What is the duty of disclosure? What rule?

Answer 77

r 211: duty of disclosure
Have to disclose every document, in possession, directly relevant to allegation in issue in pleadings.

broad definition of Document under AIA .

Question 78

They duty to disclose only entails documents within a party’s possession, can a party simply delete or get ride of those documents then? What Rule? What case?

Answer 78

r 211 duty of disclosure.
Party cannot divest itself of disclosable documents, such as by deleting or destroying them to avoid disclosure. (British American Tobacco case).

Question 79

What happens if a document contains relevant and irrelevant information for the purpose of disclosure?

Answer 79

Whole document disclosable.

Question 80

How long is the disclosure obligation enlivened for? What rule?

Answer 80

r 211(2) continues until proceeding is decided

Question 81

What are the time frames for disclosure, and how is disclosure done? What rules?

Answer 81

Rule 214 disclosure by delivery of list of documents and copies:
You deliver a list to the other side enumerating relevant documents and privileged documents, other side can request the non privileged documents.

28 days after close of pleadings, or if after that 7 days, inter alia

Question 82

What documents are not subject to disclosure obligations? What Rule?

Answer 82

r 212: documents to which disclosure does not apply
Valid claim of privilege or only relevant to credit or additional copy of document.
Expert statement or report are not privileged from disclosure

Question 83

What are some grounds for privileged from disclosure and what rule is concerned?

Answer 83

r 212:
Legal professional privilege, self-incrimination (natural persons only), public interest privilege, parliamentary privilege, without prejudice privilege

Question 84

What is the consequence of disclosure of privileged material to an expert? What rule would be concerned?

Answer 84

r 212
waiver of privilege and the material is discloseable.

Question 85

For disclosure what happens is a document relates to credit only in a defamation proceedings or other proceedings where credit is relevant to a particular allegation in issue?

Answer 85

No exempt from disclosure.

Question 86

What is the privilege status of a document not normally privileged?

Answer 86

If brought into existence only for the purpose of obtaining legal advice, will be privileged?

Question 87

Do multiple copies of documents need to be disclosed? What rule?

Answer 87

r 212(1)(c)
No but in practice, different copies of emails fax or agreements will contain potentially useful notations like time/date or hand written comments, these further copies would need to be disclose able.

Question 88

What cuck move do lawyers do when it comes to r 212(2)?

Answer 88

Solicitor engages an expert to examine the relevant facts and then provides oral opinion only with no not taking. If the expert’s view is favourable, then they will be instructed to prepare a report to be disclosed

Question 89

Are instructions given by a lawyer to an expert privileged?

Answer 89

Yes, however will not attach to documents that have not passed between the expert and the lawyer. So working papers, source material and collated documents that has not bee received by the lawyer will not constitutes privilege.

Question 90

Is a draft report privileged or exempt from disclosure? What rule?

Answer 90

r 212(1)(c)
drat reports still disclosable

Question 91

What is the process for challenging a claim of privilege? What rule?

Answer 91

r 213; privilege claim
The other party challenges the claim, so the party within 7 days must filed and serve on the other party an affidavit stating the claim, by someone who knows the facts giving rise to the claim

Question 92

What happens if a party requests disclosure of documents to voluminous or inconvenient to disclose? What rules?

Answer 92

r 214; disclosure by delivery of list of documents and copies AND
r 216; disclosure by inspection - where to inconvenient to disclose by copy

Question 93

Is privilege waived if lawyers inadvertently disclose privileged documents? What happens?

Answer 93

This does not constitute waiver of privilege and if lawyers refuse to return the material the court ought to permit the correction.

Question 94

What form should the list of documents for disclosure including those claimed to be privileged be in?

Answer 94

Form 19, and if not met there can be costs consequences.

Question 95

What happens if a party wants to cite an original document rather than receive disclosure by a copy of it? What rule?

Answer 95

r 215 requirement to produce original documents
despite normal disclosure, a party may require an original be produced for inspection.

Question 96

How are documents to be disclosed when produced? What Rule?

Answer 96

r 217 procedure for disclosure by producing documents
Need to be together, arranged easily accessible and for convenient inspection, and identified for easy retrieval on subsequent occasions.
Party producing must also provide facilities and make a person available who can explain how the documents are arranged.
And provide list for privileged documents.

Question 97

What is incumbent upon a party inspecting produced documents? What rule?

Answer 97

Rule 217; procedure for disclosure by producing documents.
Docs must be together in a way to be easily accessible, identified for easy retrieval later on, provider must provide facilities for insepction (computer, microfiche), provide a person to explain how they are arranged, etc

Question 98

What can a party do to stagnate disclosure? What Rule? Why?

Answer 98

r 220 deferral of disclosure.
Can send notice to other party, not to disclose material until asked for. Disclosure then prohibited until requested. This reduces costs.

Question 99

Can you disclose to the other party documents that relate to damages only? What rule?

Answer 99

Rule 221, disclosure of document relating only to damages.
No, only if the other side requests it. This cuts down on voluminous disclsoure.

Question 100

What can you do if you want a document disclosed, that is referred to in other sides pleadings, particulars, or affidavits? What rule?

Answer 100

Rule 222 inspection of documents referred to in pleadings or affidavits.
Can require the other side to produce it for inspection and allow for copies to be made.
There has to be unequivocal reference to doc to invoke this rule, not merely allusion to its existence.

Question 101

What orders can the court make regarding disclosure? What rules

Answer 101

Rule 223 Court orders relating to disclosure.
Can order disclosure of documents generally.
Can order a party file and serve on the other affidavit setting out that docs don’t or cease to exist, or no possession has passed.
Provisions really for if it appears disclosure duty not being complied with.

Question 102

If a party makes an application under r 223 for disclosure of a doc, which is objected to (either for privilege or some other basis) what can the court do in resolving this?

Answer 102

r 223(5) court can inspect the document to help decide the objection

Question 103

What can a party do if they are aggrieved that the disclosure obligation of another party has not been complied with?

Answer 103

Can make application under r 223.

Question 104

What is important about/how is orders made under r 223 qualified?

Answer 104

r 223(4) court can only order disclosure per chap 7, or order affidavit explaining why disclosure cannot occur (docs don’t exist or no longer possessed) IF it is in interests of justice OR duty to disclose appears not to be complied with OR docs exist but they have passed out of possession of party.

Question 105

What rule might apply if a party is burdened by duty of disclosure?

Answer 105

rule 224 Relief from duty to disclose.
Court can order relief of, or to an extent, duty of disclosure. Court can take into account (not limited) cost/inconvenience of disclosing vs amount involved in proceeding OR importance of docs OR the effect their disclosure would have on outcome, etc.

Question 106

Can confidentially of docs presuppose and order for relief of disclosure and what can the court do with this issue? What rule?

Answer 106

r 224 Relief from duty to disclose.
No, however at the same time courts will not permit the disclosure rules to be abused for ancillary purpose to gain access to rival’s trade secrets/commercially sensitive material. If this is an issue, can can order disclosure only be made to legal reps and certain experts.

Question 107

What must you do if you intend on adducing evidence that is plans, photos, video, audio at trial, in advance of the trial? What rule?

Answer 107

r 393 Plants, photographs, video or audio recordings and models.
At least 7 days prior to hearing; must give the other parties an opportunity to inspect and agree to its admission, unless court orders otherwise.

Question 108

What might be an example, where disclosure, and the requirement of r 393 might sought to be avoided, and what are the competing considerations?

Answer 108

There is utility in all evidence being disclosed to all parties, and parties knowing each other’s evidence to the full extent.

However there is also utility in being able to adduce video (or other material) by surprise to potentially unmask exaggeration, deception, or fraud by a plaintiff/witness (think PI) and there would be a forensic benefit in this.

Coster v Bathgate QCA.

Question 109

To what extent can a party make use of a disclosed document in proceedings?

Answer 109

There is implied undertaking that disclosed documents are only for the purposes of the proper conduct of the proceeding, and attempts to make other use can be restrained by injunction.

Question 110

What are the consequences of nondisclosure, what rule?

Answer 110

r 225 Consequences of nondisclosure
Cannot adduce the evidence without leave, liable for contempt, order to pay costs and other party can apply on notice for order staying/dismissal on all or part of the proceeding or judgement against other party, or order for disclosure of the document.

Question 111

What’s a guillotine order when it comes to disclosure? What rule is concerned?

Answer 111

R 225(2)(c) & (3)
For disclosure noncompliance, court can order the document be disclosed under (2)(c) stipulating time and way. Then under (2)(3) court can specify consequences for failing to comply with that order (like the proceeding being stayed/dismissed/judgement “guillotine order”)

Question 112

What must the solicitor do at trial concerning disclosure obligation duty?

Answer 112

r 226 Certificate by solicitor
At trial the solicitor must give cert to the court that states that duty of disclosure has been explained fully to party, if party is a corp then identifying the person to whom it was explained. Must be prepared and signed at/immediately before trial.