UCPR Principles

Question 1

Name 5 things that an applicant for an urgent interlocutory injunction must establish to obtain the order.

Answer 1

The test is outlined in Castlemaine Toohey v South Australia and is:

1. Urgency, otherwise the matter can wait.
2. Make out a prima facie case / demonstrate that there is a serious question to be tried: American Cyanamid v Ethicon Limited;
3. Identify the legal/equitable rights in respect of which relief is sought and for which damages will be inadequate; and
4. Demonstrate that the balance of convenience favours granting relief.

Balance of convenience factors include:

• Necessity: How necessary is it that relief is granted?
• Utility: Will an order preserve the subject of the injunctive relief from destruction / harm?
• Fairness
• The nature of the rights in dispute: Is the dispute over something that might be destroyed or disposed of if the injunctive relief is not granted?
• The nature of the allegations: What is alleged will happen if the injunctive relief is not granted?
• The effect of the grant or refusal;
• The sufficiency of the alternatives.

Question 2

What sections of the Supreme Court Act, Practice Notes and District Court Act govern granting injunctive relief?

Answer 2

s. 66 Supreme Court Act
SC PN CL 5
SC PN Eq 8
s 140 District Court Act, but only to prevent any apparent or threatened nuisance or prevent a breach of a negative covenant in a contract for which consideration is less than $20,000.

Question 3

What sections of the Supreme Court Act, Practice Notes and District Court Act govern granting injunctive relief?

Answer 3

s. 66 Supreme Court Act
SC PN Eq 8
s 140 District Court Act, but only to prevent any apparent or threatened nuisance or prevent a breach of a negative covenant in a contract for which consideration is less than $20,000.

Question 4

What must an applicant show to obtain a freezing order?

What are the key cases in relation to freezing orders?

Answer 4

The applicant must show that:

1. They have a prima facie case against the defendant on an accrued or prospective cause of action: r 25.14(1); and
2. There is a danger that the applicant, if successful in the primary proceedings, will not have the judgment / prospective judgment satisfied because the defendant will do something to dispose of / destroy the judgment sum: r 25.14(5) UCPR.
3. Number two above requires consideration of the following factors:
   (a) The level of control that the respondent has over the subject assets; and
   (b) Whether there has been an expressed intention to dispose of the assets, whether specifically to frustrate judgment or just during the normal course of using the assets; and
   (c) The rarity of the subject assets.
4. Under r 24.14(5) UCPR, where an order is sought against a third party, the applicant must show that there is a danger that judgment will be wholly or partly unsatisfied because:
   (a) The third party has the power of dispossession over the assets; or
   (b) The third party has control or influence over the subject assets; or
   (c) As a result of the court process, the third party may be obliged to disgorge assets or contribute towards satisfying the judgment / prospective judgment.

The relevant cases are:

• Patterson v BDR Engineering; and
• Haydon v Taplizsky.

Question 5

What type of evidence will a court look for to support an application for a Mareva (freezing) order?

Answer 5

A prima facie case of fraudulent misappropriation of assets or serious wrongdoing will readily support an application for a Mareva order, but mere assertions that the defendant is likely to put the assets beyond the reach of the plaintiff will not be enough: Patterson v BDR Engineering.

Question 6

What should an affidavit in support of an Anton Piller (search) order set out?

Where is this outlined?

Answer 6

The requirements of an affidavit in support of an anton piller order are set out at paragraph 8 of SC Practice Note Gen 13 as follows:

• A description of the thing or category of things being searched for;
• The basis for the applicant’s belief that the thing is at the address identified;
• The basis for the applicant’s belief that the respondent will destroy or otherwise make that thing unavailable;
• The address to be searched, and whether it is residential or business;
• The details of likely occupants of the premises, including whether there are likely to be any “vulnerable people” at the premises when searched;
• The name, firm details and litigation experience of a solicitor who consents to supervising the execution of the search order and any ancillary orders made by the court; and
• The prejudice, loss or damage likely to be suffered by the applicant if the order is not made.

Note: SC PN Gen 13 also states that ordinarily, the order should be served between 9:00 am and 2:00 pm on a weekday to allow the respondent to obtain legal advice.

Question 7

What are the 5 circumstances under which an appellate court will intervene in a decision of an inferior court.

What is the case authority?

Answer 7

The appellant must show that the judge in the inferior court did one of the following:

1. Acted upon a wrong principle;
2. Took into account an irrelevant consideration;
3. Failed to take into account a relevant consideration;
4. Made a relevant error of fact; or
5. Reached a decision that is plainly unreasonable or unjust.

The authority is House v R.

Question 8

Provide 6 examples of when leave to appeal from a decision of a single judge of the Supreme Court is required.

Answer 8

An appeal of a single judge of the Supreme Court requires leave in the following circumstances, as per s 101(2) of the Supreme Court Act:

1. If the judgment sum is less than $100,000;
2. From an interlocutory order or decision;
3. From a decision on costs only, which are in the complete discretion of the court;
4. From an order or judgment correcting a clerical error or mistake (i.e. the slip rule);
5. From orders made with the consent of all parties; and
6. An order refusing leave to a vexatious litigant to commence or carry on proceedings.
7. A Judgment or order for the winding up of a corporation.

Question 9

On what grounds may a party appeal from a civil decision of the Local Court as of right?

Answer 9

s 38 Local Court Act states that, subject to Division 4 LCA, all decisions of the Local Court in its civil jurisdiction are final.

In Division 4, s 39 states the following appeals lay as of right:

• s 39(1): A party may appeal from the General Division of the LC to the SC, but only on a matter of law; and
• s 39(2): A party may appeal from the Small Claims Division of the LC to the District Court but only on the basis of a lack of jurisdiction or denial of procedural fairness.

Question 10

When can a party appeal from the Local Court with leave?

Answer 10

Section 40 Local Court Act governs those appeals that are available (only from General Division, not Small Claims Division) with leave (note they are to the Supreme Court):

• s 40(1): On a ground of mixed law and fact;
• s 40(2)(a) - (c): order/judgments in relation to costs, orders made by consent or interlocutory orders.

Question 11

Appeals from the District Court.

Answer 11

Appeals from the District Court are governed by s 127 of the District Court Act.

s 127(1) DC Act states that an appeal from the District Court lies to the Supreme Court.

Under s 127(3), all appeals from the District Court are as of right, except for those appeals outlined in s 127(2) DC Act, which require leave.

The appeals that require leave from the District Court to the Supreme Court under s 127(2) DC Act are appeals from:

• Judgment/orders as to costs only;
• Interlocutory orders;
• Judgments for sums less than $100,000;
• Judgments made by consent of the parties; and
• Summary judgment.

Question 12

What Part of the UCPR applies when seeking an order that a party submit to a medical exam, rehabilitation examine, or an order for the inspection of property?

Answer 12

Part 23 UCPR

Question 13

What is a letter of request and what section of the UCPR applies to it?

Answer 13

A letter of request in this context is a letter to foreign judicial authorities requesting that evidence be taken of a person.

It is governed by rule 24.5 UCPR.

Question 14

What UCPR Part and specific rules apply when an order is made for the examination of a person in some place other than a court (which could be within or outside NSW)?

Answer 14

UCPR Part 24 - Taking evidence otherwise than at trial.

The specific rules that apply are rules 24.1, 24.3, 24.4, 24.6 - 24.20 UCPR inclusive.

Question 15

What rules outlines the ‘usual undertaking as to damages”?

Answer 15

Rule 25.8 UCPR

Question 16

What rule can an applicant rely on when seeking an order for interim preservation before the commencement of proceedings?

Answer 16

Rule 25.2 UCPR

Question 17

Can a court order that property in dispute in proceedings that is of a perishable nature be sold?
If so, what UCPR rule applies?

Answer 17

Yes.

Rule 25.4 UCPR.

Question 18

What are the relevant cases and their principles that apply to Freezing Orders?

Answer 18

Mareva - the case for which the order is named after.

Ninemia Maritime Corp v Trave: A freezing order should be considered an extraordinary order and the applicant should have a good arguable case on an accrued or prospective cause of action.

Third Chandris Shipping Corporation v Unimarine SA: The type of evidence that the court will require to establish that there is a danger that the judgment will be partly or wholly unsatisfied includes a prima facie case of fraudulent misappropriation or serious wrongdoing, but mere assertions that the plaintiff is likely to put the assets beyond reach will not be enough.

Also quote Heydon v Taplizsky and Patterson v BDR Engineering when outlining the requirements at r 25.14(1) and 25.14(4).

Question 19

What Supreme Court Practice Notes apply to urgent applications?

Answer 19

SC PN CL 5 - in the common law division and SC PN Eq 8 in the equity division.

Question 20

Under what UCPR rule may the Supreme Court order a party to sell land?
What are the restrictions?

Answer 20

Rule 27.1 UCPR.
The restrictions are that:
- the proceedings must be in the Supreme Court in relation to land;
- Other than proceedings in the Common Law Division for possession of land.

Question 21

What Part of the UCPR applies to the appointment of receivers?

Answer 21

Part 26.

Question 22

Under what Part can a court order that questions of liability and quantum (or any other questions) be decided separately?

Answer 22

Part 28

Rules 28.1 - 28.4

Question 23

Under what rule may the court order the consolidation of separate proceedings?

Answer 23

Rule 28.5 UCPR.

Question 24

What rule will apply if you get to TRIAL and the opposing party has just not shown up?

Answer 24

Rule 29.7 UCPR

Question 25

What rule will apply if the plaintiff wants to apply to have the proceedings dismissed?

Answer 25

What I’m thinking of here is rule 29.8. Note that the plaintiff’s application for the proceedings to be dismissed is not a win for the plaintiff, it’s effectively a form of discontinuance.

Note that other related rules for where the plaintiff is the moving party could be:
Rule 12.7(2) UCPR - Strike out of defence for want of due despatch.

Potentially under rule 12.8 UCPR (SCNSW and LEC only) if no steps have been taken by a party (but this typically only applies when there’s no future listing date.
If in the DCNSW or LCNSW, if commenced by SOC, and no defence, application for default judgment is filed within 9 months of the SOC.

Summary judgment for the plaintiff under r 13.1 UCPR.

Question 26

What rule permits a court to enter judgment if a party dies after the verdict or finding of fact in question?

Answer 26

Rule 29.12 - Death of party before judgment

Question 27

Does a claim cease because a party to the proceedings dies?

What rules govern this?

Answer 27

No, unless no cause of action, interest or liability survives the person’s death.

Under r 6.30(1) UCPR, proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives.

Provided a cause of action and the interest of liability survives, r 6.30(2) allows the court to make such orders as it thinks for the removal, joinder, or re-arrangement of parties.

The party who has the interest following the original party’s death will typically seek consent and/or an order of the court to amend the originating process or defence / reply to name the new party.

Under r 6.24 UCPR, the court may join a party if joinder is proper of necessary.

If no order to replace the deceased party is made within 3 months of the death, the court may order an application to join a party within a specified time, that the proceedings in relation to the specified cause of action be dismissed - r 6.31(2) UCPR.

Question 28

What rules apply when judgment has been given for a party with damages to be assessed?

Answer 28

Part 30 UCPR, rules 30.1 - 30.3

Question 29

If damages are to be assess of ongoing losses, when are they to be assessed up to and under what rule?

Answer 29

Under r. 30.3 UCPR, if damages are to be assessed in respect of a continuing cause of action, they are to be assessed up to the time of assessment.

But to be clear, damages can be assessed on likely future losses based on the evidence, such as future economic loss in a personal injury case.

Question 30

What rules outline the “usual undertaking by person liable” and “usual undertaking by person not liable” in relation to s 304 of the Duties Act or the usual undertaking in respect of stamp duty?

Answer 30

Rules 31.13(1) and (2)

Rule 31.14(1) and (2)

Question 31

What rules outline the “usual undertaking by person liable” and “usual undertaking by person not liable” in relation to s 304 of the Duties Act or the usual undertaking in respect of stamp duty?

Answer 31

Rules 31.13(1) and (2)

Rule 31.14(1) and (2)

Question 32

What rules relate to the court’s powers to give directions to experts in respect of reports / issues in dispute?

Answer 32

Rules 31.17, 31.19 - 31.26 UCPR

Question 33

What is the difference between the parties’ single expert and a court appointed expert?

Answer 33

The engagement of the parties’ single expert is governed by rules 31.37 - 31.45 and it is where the parties pick their own joint expert.

A court-appointed expert is governed by rules 31.46 - 31.54 and is where the court appoints an expert of its own choosing.

Question 34

What UCPR rules relate to interpreters?

Answer 34

UCPR rules 31.55 - 31.64

Question 35

What rule relates to service of expert reports in professional negligence claims?

Answer 35

Rule 31.36

Question 36

What considerations will a court take into account when determining an application for change of venue?

Answer 36

The historical test has been somewhat amended by r 8.2(1)(b) which allows the court to order a change of venue for “any other reason”.

But relevant factors are likely to include:

• the reason for the nominated venue by the plaintiff;
• Whether the parties can be assured that they can receive a fair trial at the proposed venue;
• the ordinary place of residence or business of the parties and any material witnesses;
• The place where the cause of action arose;
• Any prejudice to a party caused by a particular venue;
• The costs, disruption or inconvenience associated with a particular venue;
• any likely delay to the final resolution of the proceedings which would be occasioned by the change of venue.

Question 37

What is a relator?

What rule deal with relators?

Answer 37

A person who brings a public lawsuit.

Rule 7.23

Question 38

What rules apply to the appointment and removal of solicitors?

Answer 38

Rules 7.24 - 7.31 UCPR.

Question 39

What must an affidavit in support of an application of substituted or informal service establish?

Answer 39

Essentially, three matters:

(1) Detail the steps that have been taken to try and effect service by the ordinary means and that service cannot be practically effected: ASIC v Sweeney
(2) The proposed method of substituted or informal service;
(3) The reason why the alternative method of service is likely to bring the document to the attention of the recipient: Chappell v Coyle

Question 40

Porter v Freudenberg.

What is the principle?

Answer 40

A court will generally order substituted or informal service if satisfied that the alternative mode of service is reasonably likely to bring the document to the respondent’s attention.

Question 41

Under what section of SEPA is a SOC served interstate?

How long does a person than have to file an appearance in reply?

Answer 41

Section 15 in Civil
Section 24 SEPA for an originating process in the criminal jurisdiction.

The longer of 21 days or the time ordinarily permitted in the issuing state.

Question 42

Under what section of SEPA is a subpoena served?

What is the time for service of a subpoena interstate?

Answer 42

Section 29 SEPA.

Subpoena must be served interstate at least 14 days before the subpoena recipient is required to respond to the subpoena.