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CIVIL PROCEDURE


TOPIC 1: Introduction

Procedural law

What is procedural law?

Procedural law governs the conduct of court proceedings.
That is, the mode of proceedings by which a legal right is enforced, as distinguished from the law which
gives or defines the right (Poyser v Minors per Lush J). Theyre adjectival rules, in the sense that they
qualify substantive rights.
Purpose: a process for the resolution of disputes, and also to perpetuate the rule of law (ie process must be
designed to be fair, economical and expeditious J A Jolowicz).

Chronology:
i. Initiation of proceedings;
a. Decision to litigate (ADR? Settlement?);
b. Choice of court;
c. Choice of parties;
d. Issue proceedings;
e. Serve documents; and
f. Defendant files appearance.
ii. Pre trial procedure definition of issues at stake between the parties;
a. Pleadings exchanged (outline the parties arguments);
b. Gathering/ producing evidence via Discovery and Interrogatories; and
c. Interlocutory proceedings (applications and hearings before the Master/ Judge dealing with
preliminary matters that need to be decided before trial eg in Donoghue v Stevenson, they were
just considering whether a DOC was owed).
iii. Trial;

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iv. Costs;
v. Appeal; and
vi. Enforcement.

The Courts

In Victoria:
o Supreme Court;
! Has inherent jurisdiction = power of superior courts to regulate their own processes to prevent
an abuse of process.
! Per Bongiorno J in Gunns, The Court has power both under the Rules of the Supreme Court &
inherently to ensure that its processes do not become a source of injustice themselves. It may do
this by whatever interlocutory order is necessary, from ordering necessary amendments to a
pleading to, in an extreme case, terminating the proceeding.
o County Court; and
o Magistrates Court.

Federal system:
o High Court;
o Federal Court;
o Family Court; and
o Federal Magistrates Court.
* These courts do not have inherent jurisdiction they get their mandate from legislation.

Sources of procedural law

Legislation: Supreme Court of Victoria established by Supreme Court Act 1986 (Vic) sets SCVs
composition, administration and statutory powers.

Delegated legislation: SC Act provides that procedural rules may be made by delegated legislation. The
Rules of Court are devised by rules committees and can be altered by judges. Rules of Court in Vic
provided in Supreme Court (General Civil Procedure) Rules 2005 (Vic).
* Each book is called a Chapter, so chapters are called Orders Order 50.3 is pronounced 3
rd
rule of
Order 50.

Practice notes: The inherent jurisdiction of SC entitles judges to issue practice notes and directions. While
not legally binding, courts may ensure they are complied with by exercising their inherent power to make an
order against a party, such as a stay on proceedings or an order for costs.


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Participants in litigation

Victorian courts: Plaintiff and Defendant;
Federal system: Applicant and Respondent; and
Appeals (state and federal): Appellant and Respondent.

Adversarial system

Under adversarial system, two adversaries generally take charge of the procedural action / party control
(cf. inquisitorial system, where officials perform most of the activities).
Main attributes of adversarial procedural system (D Maleshin):
- Pre-trial conferences and party-controlled, pre-trial investigations;
- Trials designed as concentrated courtroom drama;
- Passive judges (like an umpire more reactive than proactive per ALRC); and
- Party-selected and paid experts.
Main attributes of inquisitorial system:
- A lack of distinction between the pre-trial and trial phases;
- Active judges;
- Judicial proof taking and fact gathering;
- Judicial examination of witnesses; and
- Court-selected experts.

Criticism of adversarial system: Thus the power of the judge to find the truth is limited by the parties
ability and desire to lay all the relevant facts before her or him. That may result in the judge administering
the law as distinct from justice (Justice Ipp).
Bentham considered that an ideal system of procedure would cut across the standard distinctions between
adversarial and inquisitorial systems. He favoured active questioning by the judge and confrontation of
parties and witnesses face to face in oral proceedings and regarded cross-examination as the redeeming
feature of the English tradition.

Costs

Costs = money that a party may recover from opponent in litigation for reimbursement of particular
expenses incurred in litigation.
General rule in SC is that loser pays winners costs (cf. USA).
Is this position good?
" Discourages parties with weak cases (eg vexatious litigants);
" Encourages parties with strong cases winner does not lose money due to litigation costs;

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" Can encourage settlement in intermediate cases; and
" Can be used to discipline parties encourages parties to comply with rules and deadlines (otherwise
could get a costs penalty).
! Can undermine access to justice discourages people from pursuing good legal rights because they
cant take the risk they might lose and have to pay legal costs; and
! Can be used as an offensive mechanism (called SLAPP writs Strategic Lawsuit Against Public
Participation, eg McDonalds case
1
and Gunns case).

Case management

Case management

Case management = court is involved in management of the progress of proceeding from commencement
to conclusion. Judges adopt a more active managerial role this is a shift away from the traditional
adversarial model.
As described by the ALRC, the judge is not simply responding as a passive umpire to processes initiated
by litigants and their lawyers but is active in investigating the best way to define the dispute and to present
the case The focus of dispute resolution is no longer solely directed towards the final hearing. Rather,
legal proceedings are viewed as a continuous series of meetings, hearings and written communications
during which evidence is introduced, witnesses heard and motions made.

Objectives of case management (ALRC):
- Early resolution of disputes;
- Reduction of trial time;
- More effective use of judicial resources;
- Monitoring of caseloads;
- Increasing accessibility to the courts;
- Reduction of criticism of the justice system by reason of perceived inefficiency.

How? In general, all cases are controlled by the court registry and are assigned to different judges or judicial
officers at different times for different purposes. When an event relating to a case has been dealt with it is
returned to the pool of cases to await the next event and to be assigned again, not usually to the same judge
or judicial officer. Master list method.

List system in the SCV:
o Individual list model.

1
McDonalds sued 2 environmental campaigners for defamation. They won, and were awarded 40,000.
However, their legal costs were about 10 million.

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o Cases are divided into certain areas (eg commercial list, major torts list and others).
o Parties can choose if they want to go into one of these lists it costs extra money.
o Why? Judge can ensure parties are following the rules, judge is usually specialised in that area, and
judge manages pace of litigation to get to trial quicker.

Crisis Justice vs. Efficiency

Traditionally, justice on the merits approach was taken to override procedural arrangements.
Per Lord Millett in Gale v Superdrug Stores (1996, UK),It is easy to dispense injustice quickly and
cheaply, but it is better to do justice even if it takes a little longer and costs a little more. However, that
little can mean a lot.
The combination of high costs and delays deterred aggrieved persons from pursuing claims thus reducing
access to justice. The response to this crisis led to the development of case management (above).

Introduction of efficiency.
As Lord Woolf observed in his report on access to justice in the UK in 1990s, The litigation process is too
often seen as a battlefield where no rules apply. In this environment, questions of expense, delay,
compromise & fairness may have only low priority. The consequence is that expense is often excessive,
disproportionate & unpredictable; & delay is frequently unreasonable.
Lord Woolf said a system needs:
1. To be just in the results it delivers;
2. To be fair in the way it treats litigants;
3. To offer procedures & costs proportionate to nature of issues involved;
4. To deal with cases with reasonable speed;
5. To be understandable to those who use it;
6. To be responsive to the needs of those who use it;
7. To provide as much certainty as the nature of the particular case allows, and
8. To be effective, adequately resourced and organised so as to give effect to 1-7.
Embodies a notion of distributive justice need to do justice to the parties in the litigation and other
litigants awaiting trial.

Lord Woolfs recommendations are codified in Vic:
r 1.14 In exercising any power under these Rules, the Court shall endeavour to ensure that all
questions in the proceeding are:
- effectively;
- completely;
- promptly; and
- economically;
determined.

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Inherent tension in trying to balance these considerations.
V|ctor|an keforms
1he !"#"$ &'()*+,'* -). /010 (vlc) marks Lhe flrsL sLage of Lhe vlcLorlan CovernmenL's leglslaLlve response Lo
Lhe !"#"$ 2,3.")* 4*#"*5 reporL publlshed by Lhe vlcLorlan Law 8eform Commlsslon ln May 2008.
lLs ob[ecLlve ls Lo change Lhe culLure of llLlgaLlon ln vlcLorla by adopLlng less adversarlal approach.
lnLroduces Lhe6(#*'7')8"9: ;,';(3*' Lo faclllLaLe Lhe [usL, efflclenL, Llmely and cosL-effecLlve resoluLlon of Lhe
'*7$ lssues ln dlspuLe beLween llLlganLs, by requlrlng Lhe courLs Lo exerclse Lhelr powers havlng regard Lo a
range of ob[ecLlves, lncludlng (art 4.2, !"#):
Lhe publlc lnLeresL ln Lhe early seLLlemenL of dlspuLes,
Lhe efflclenL use of [udlclal resources,
mlnlmlslng delays ln Lhe deLermlnaLlon of dlspuLes, and
ensurlng LhaL Lhe approach Lo a clvll proceedlng ls proporLlonaLe Lo Lhe complexlLy of Lhe
lssues ln Lhe proceedlng and Lhe amounL ln dlspuLe.
1he court must have regard to the overarch|ng purpose |n exerc|se or |nterpretat|on of any of |ts powers:
Sect|on 8(1).
art|c|pants a|so have $%&'(')*+,- $/0+-(1+$,2 (ss 17-26 !"#)3
acL honesLly
only make clalms LhaL have a proper basls
only Lake sLeps Lo resolve or deLermlne Lhe dlspuLe
cooperaLe ln Lhe conducL of Lhe clvll proceedlng
noL mlslead or decelve
use reasonable endeavours Lo resolve Lhe dlspuLe
narrow Lhe lssues ln dlspuLe
ensure cosLs are reasonable and proporLlonaLe
mlnlmlse delay
dlsclose Lhe exlsLence of documenLs crlLlcal Lo dlspuLe
Challenging case management decisions

AON Risk Services v ANU (2009)
o Facts: Some property owned by ANU was destroyed by the 2003 Canberra bushfires. Action was
first against insurance company who wouldnt pay up. They also sued the insurance broker AON. In
the 1
st
week of the 4 week trial, ANU settled with insurance company. In suing the broker, they
realised they needed to change their case so they asked judge for permission to amend statement of
claim at trial (to a completely different action). They were given leave to amend.
o Held: Leave should not have been given.
o # Joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ):

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o It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely
the parties to the proceedings.
o Whether party should get leave to amend depends on the rules, all the circumstances of the case, and
number of factors including:
- Reason for, and length of, the delay in applying for amendment, including whether appln made
in good faith;
- Prejudice other party will suffer if amendment allowed (and whether costs adequately
compensate for that);
- Point in litigation at which application made; and
- Prejudice of other litigants awaiting trial dates or whose trial dates may be affected.
o Here, ANU gave no good explanation for why they were changing their strategy; new defence means
trial date will be adjourned/vacated so massive delay it will cost AON a lot of money, and
emotional effects of having case hang over their head for so long; middle of trial; and, delay other
trial dates.

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TOPIC 2:
Alternative Dispute Resolution (ADR)

Introduction

According to the Charter of Human Rights and Responsibilities Act 2006 (Vic), everyone has a right to
have a dispute decided by a competent and impartial court or tribunal after a fair and public hearing; s
24(1).
Although you have a right to have disputes decided by a court, this doesnt mean you have to.
Limitations of litigation:
- Risk, unpredictability, delay and financial costs;
- Stressful (strain of litigation, see JL Holdings);
- Public;
- Courts concerned with legal rights rather than an effective solution to the real conflict; and
- Parties relationships often irrevocably damaged.
ADR may be faster, cheaper, less adversarial and more flexible than litigation, but more structured and
regulated than the disputants own efforts to resolve the conflict by themselves.
ALRC has suggested that ADR will not be suitable:
- When a definitive or authoritative resolution of the matter is required for precedential value;
- When the matter significantly affects persons or organisations who are not parties to ADR processes;
- When there is a need for public sanctioning of conduct or where repetitive violations of statutes and
regulations need to be dealt with collectively and uniformly;
- When a party is not able to negotiate effectively themselves or with the assistance of a lawyer; and
- In family law matters, where there is a history of family violence.

Models of ADR

Two ADR processes:
1. Determinative: 3
rd
party makes a determination on the dispute, eg arbitration. The outcome of most
determinative processes is enforceable through the courts; and
2. Facilitative: 3
rd
party helps to manage the process of dispute resolution, eg mediation. The facilitator
does not make a decision. Rather, the process facilitates the parties efforts to resolve the dispute for
themselves.


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Arbitration

Characteristics:
o Quasi-judicial.
o Less formal than litigation.
o Rules of evidence relaxed since its a private system, the parties can decide how it should be run.
o Arbitrator makes determination (an award).
o Outcome binding on the parties but has no precedential effect.
o Outcome is only reviewable on limited grounds.

When would you use? International commercial disputes (enforceability of arbitral awards accomplished
pursuant to an international agreement, flexibility of the procedure, and ability to select experienced
arbitrators) and commercial disputes (more efficient, cheaper, more control, private and can select
arbitrators with expertise in the subject matter of the dispute).
When would you not use? Complicated legal questions (arbitrator may not even be a lawyer) or if you want
rules of evidence to properly apply.
Mediation
Characteristics:
o Facilitated negotiation.
o Mediator a process facilitator.
o No set procedure can be adapted to the dispute/parties.
o Mediator will not express opinions/ offer advice to the disputants.
o Confidential process.
o No resolution without parties consent.

When would you use? Control (parties make the decision self-determination aspect).
Power imbalance?
o No decision is imposed on weaker party;
o BUT, there is a risk that the weaker party will accept a less satisfactory outcome than would have been
decided by a neutral 3
rd
party;
o The mediators role does not include guaranteeing a fair outcome the mediator facilitates the
parties self-determination, and so if one party is willing to accept an unfair outcome, mediation may
produce unfair results;
o Mediators can use procedures and strategies to help to reduce these imbalances (eg allowing all parties
a proper opportunity to express their views, preventing abuse, threatening or harassing behaviour,
suggesting that each party have access to independent legal advice etc).

Court-annexed ADR


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A court may order, at any stage of a proceeding, that the proceeding, or part of the proceeding, be
referred to ADR (Civil Procedure Act s 66(1)).
Although an order made under s. 66(1) does not require the consent of the parties, consent must be
provided if the ADR in question directly or indirectly results in a binding outcome: s. 66(2)
The Courts can make people participate in ADR to facilitate the early resolution of disputes.

Supreme Court:
o Court may refer matter to mediation with/ without parties consent: r50.07 SCR
2
.
o Master can refer to mediation (by Master): r50.07.1.
o Parties have to make a bona fide attempt to settle during mediation, otherwise will be punished with costs.
o Arbitration with parties consent: r50.08
3
.

County Court:
o Mediation can be ordered with/ without parties consent: s 47A County Court Act.
o One of the most extensive referral systems in Australia, with over 6000 cases being referred to
mediation prior to 2008. According to County Courts Civil Initiative (O 34A), after the filing of an
appearance of the defendant a directions hearing is held where mediation is encouraged and
sometimes ordered.
o Arbitration with consent: r50.08 CCR.

Magistrates Court:
o Mediation with/ without parties consent: s108.
o Arbitration with consent: ss102-106.
o Matter < $10,000 MUST go to arbitration: s102.

Most cases dont get sent to mediation until after discovery, ie when the parties have all the evidence.
Parties thus have to spend time in the Court before engaging in mediation. Trying to implement pre-action
protocol before proceedings are started, parties are to exchange basic documents.

Lawyers and ADR

Indeed it may be a breach of professional or ethical obligations, perhaps even negligent, for a legal
practitioner to fail to fully consider a range of dispute resolution processes with the client (Laws of
Australia, Dispute Resolution).

2
Rule 50.07(1): At any stage of a proceeding the Court may, with or without the consent of any party, order that
the proceeding or any part of the proceeding be referred to a mediator.
3
Rule 50.08(1): At any stage of a proceeding the Court may, with the consent of all parties, order that the
proceeding or a question be referred to arbitration.

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TOPIC 3: Jurisdiction

General

Which Court to sue in?
Practical considerations:
- Court must have jurisdiction (this Topic);
- Higher courts are more expensive (court fees, lawyer fees) and slower (delay); and
- If you could have gone to a lower court you may get a cost penalty for not doing so.
Types of jurisdiction:
1. Subject matter jurisdiction refers to the nature of the disputes which may be adjudicated upon by the
particular court; and
2. Territorial jurisdiction refers to the person or bodies over whom the court may exercise jurisdiction.
Subject matter jurisdiction
i. Victorian Courts
Magistrates Court:
o Any claim for damages or equitable relief within jurisdictional limit ($100,000
4
) s 100
Magistrates Court Act 1989;
o Excluded: prerogative writs and equivalent admin law proceedings s 100(2).
Childrens Court:
o Same level as the Magistrates Court;
o Independent court;
o Deals with matters concerning children under 18 (crim) or 17 (fam);
o Cases are heard by Magistrates.
County Court:
o # Victorias principal trial court;
o Original jurisdiction (can start new matter here);
! Since 2007, has unlimited jurisdiction wrt claims for personal injuries and other personal
actions. Can also hear claims against municipal councils for loss/injury while using roads, land,
buildings etc controlled by council. Other areas where jurisdiction conferred by statute (eg PLA,
TLA etc).
o Appellate jurisdiction (hears criminal appeals from Magistrates Court civil appeals go to SC).
Supreme Court:
o Trial division (original jurisdiction)

4
Can abandon excess eg if seeking $103,000, can abandon $3,000 to fall within limit.

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! Has 3 further divisions: the commercial and equity division, the common law division and the
criminal division these divisions also include specialist lists;
! Has unlimited jurisdiction (s 85(1) Constn Act (Vic)), unless a statute expressly says to the
contrary;
! AND invested jurisdiction:
! Pursuant to s 77 Cth Constn (which enabled Pmt to invest any state court with Federal
jurisdiction), s 39 Judiciary Act gives all state SCs the original jurisdiction of the HC ie
Federal jurisdiction except over HCs exclusive matters and where statute expressly
excludes state SCs.
! AND cross-vesting legislation:
! State SCs can exercise jurisdiction of other State SCs (see below).
o Appeal division (Court of Appeal)
! Established under the Constitution (Court of Appeal) Act 1994;
! Made up of the SCV Chief Justice, a President and 9 judges of appeal;
! Hears appeals from Supreme Court (single judges) and County Court, and questions of law from
Magistrates Court and VCAT.
ii. Courts exercising Federal jurisdiction
High Court:
o Established by s 71 Cth Constn.
o Original jurisdiction:
! HC shall have original jurisdiction in all matters (s 75 Cth Constn):
(i) Arising under a treaty;
(ii) Affecting representatives of other countries;
(iii) In which the Cth, or a person suing or being sued on behalf of the Cth, is a party;
(iv) Between States; or between residents of different States; or between a State and resident
of another State; and
(v) Writ of mandamus or prohibition or an injunction sought against an officer of Cth.
! AND matters involving interpretation of Constn (s 76(i) Cth Constn gives Cth Pmt power to
confer orig jurisdiction on the HC in any matter arising under this Constn or involving its
interpretation, and s 30(a) Judiciary Act 1903 (Cth) exercises this power).
! Exclusive jurisdiction s 38 JA (exercise of power given in s 77 Cth Constn).
Includes:
(a) Matters arising directly under any treaty;
(b) Suits between states;
(c) Suits by Cth against a State;
(d) Suits by a State against Cth; and
(e) Matters in which a writ of mandamus or prohibition is sought against an officer of Cth.
! In non-exclusive matters where HC has original jurisdiction, the HC has the power to remit it to
a lower court (Federal Court or SC) (s 44 JA).
o Appellate jurisdiction:

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! s 73 Cth Constn: Jurisdiction to hear appeals from all judgments, decrees, orders and sentences
(i) of a single judge of the HC, or (ii) of any other Federal Court exercising federal jurisdiction,
or the Supreme Court of any state.
! Need special leave to appeal.
Criteria for special leave (s 35A JA):
(1) Proceedings involve a question of law of public importance; or HCA is required to resolve
differences of opinion between courts as to the state of the law; and (2) interests of the
administration of justice, either generally or in the particular case, require the HCA to consider
the judgment.
Federal Court
o Created by Federal Court of Australia Act 1976 (Cth) pursuant to s 71 Cth Constn.
o Original jurisdiction is limited to those matters in respect of which Pmt has specifically invested the
court with jurisdiction (s 19(1) FCAA). Main jurisdiction conferred by s 39B(1A)(c) JA original
jurisdiction includes jurisdiction in any matter arising under any [civil] laws made by the Cth Pmt.
o Also has accrued jurisdiction:
! Fencott v Muller
! Court has jurisdiction to determine the whole of the controversy between the parties, even if
some part of the controversy would otherwise be outside the jurisdiction;
! Are the federal and non-federal claims within the scope of one controversy and thus within the
ambit of a matter?
! A sound guide is that the claims must arise from common transactions and facts;
! It is a matter of impression and of practical judgment;
! Discretionary (Stack v Coast Securities).
o Otherwise, it does not have State jurisdiction (Re Wakim rendered this invalid, see below).
Territorial jurisdiction
It is also necessary that the court have jurisdiction over the defendant;
Three ways to satisfy:
1. Presence of D within the jurisdiction;
[Supreme] Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas
adjacent thereto in all cases whatsoever (s 85(1) Constn Act (Vic));
Jurisdiction extends to 3 nautical miles from the coast (Coastal Waters (State Powers) Act 1980
and Coastal Waters (State Title) Act 1980 (Cth));
D has to be in the State when the proceedings were started (Laurie v Carroll in this case, D left
the state a day before proceedings started so he couldnt get sued in Vic).
2. D voluntarily submits to jurisdiction; or
To indicate D is submitting, D files an unconditional appearance;
Eg Gunns case all parties and causes of action arose in Tas, but Ds submitted to Vic jurisdiction
because theres a much larger bar to do pro bono work in Vic.
3. Valid service of writ within or outside the jurisdiction.

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Must follow Service and Execution of Process Act 1992 (Cth), and Supreme Court Rules for
service outside Australia (see Topic 7).
International Transfers (forum non conveniens)
Plaintiff has chosen the court, and it has subject matter and territorial jurisdiction what if the defendant
wants another court to hear the matter?
Defendant can seek a stay of proceedings on the basis of forum non conveniens.
Test (in Aus): Stay will be granted if the Australian court is a clearly inappropriate forum (Oceanic
Sun and Voth v Manildra Flour Mills).
o Onus on D to prove that court is clearly inappropriate (deferring to Ps choice);
o HC in Voth said a court will be clearly inappropriate if the continuation of the proceedings in that
court would be oppressive (in the sense of seriously and unfairly burdensome, prejudicial or damaging)
or vexatious (in the sense of productive of serious and unjustified trouble and harassment) or an abuse
of process;
o To decide this, use factors discussed by Lord Goff in Spiliada:
i. Expense and convenience;
ii. Where did the cause of action arise?
iii. Where do the parties reside or carry on business?
iv. Where do the majority of the witnesses reside?
v. Which law will apply? and
vi. Are there any other parties involved and are they amenable (ie liable to) to any particular
jurisdiction?
o The HC said they wont take into account any backlog in the court in question (Voth);
o Example:
o Voth (1990, HC):
MF was a NSW company, part of an international group of companies based in the USA. For its
tax, it used the US accounting firm Deloitte. V was a partner at Deloitte. M sued V in NSW SC
for negligence. V asked for a stay. NSW refused so he appealed to HC.
Held: Per factors (ii) US, (iii) US and NSW, (iv) US, (v) US # greatest connection is to US.
HC said it was clearly inappropriate for the case to run in NSW so they stayed the case.

Alternate test (UK): Stay will be granted if another forum is more appropriate (Spiliada, 1987 AC). The
HC in Voth preferred the Aus approach because it did not require the judging of other courts (which is
difficult for international courts).
Transfers within Australia
Problems of jurisdiction:
- May not get complete resolution in one court;
- Risk of challenge to jurisdiction (waste of time and money);
- Risk of downgrading State Supreme Courts (ie if all good cases went to Fed Court);
- Federal Court becoming court of choice; and
- Possibility of inconsistent judgments in same matter.

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To solve problems, came up with cross-vesting scheme:
o Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth), Jurisdiction of Courts (Cross-
Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic);
o Applies to Federal Court, Family Court and all Supreme Courts (but not HC or lower courts);
o Scheme gives to every court affected the jurisdiction of every other court.
Ie every court has the same jurisdiction.
o 2 elements of scheme (1) vesting/conferral of jurisdiction, and (2) transfer of proceedings.
Constitutional validity
In Re Wakim, the HC said that cross-vesting legislation is unconstitutional to extent that it confers State
jurisdiction on Federal Court (& Family Court).
Why? Under s 77(i) Constn, the Cth Pmt may make laws defining the jurisdiction of a federal court, but
only wrt those (federal) matters which are set out in ss 75 and 76 of the Constn. HC held that s 77(i) was an
exhaustive statement of the jurisdiction which the Cth Pmt could confer on a federal court, and further that
no entity other than the Cth Pmt had power to confer jurisdiction on a federal court.
Transfers between courts per cross-vesting
Have to go to the court that proceedings have been brought in and ask for a transfer.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic):
5(1): SC # Fed/Family Court
5(2): SC # another SC
5(4): Fed/Family Court # SC
5(5): Fed/Family Court # Family/Fed Court (ie the other one)
Who can ask for a transfer?
- Either party;
- Court on its own motion; or
- A-G can make an application.
This scheme does not technically cover lower courts (Magistrates, County etc) but exceptions apply if the
need arises, a SC can bring a case from a lower court into the SC and then move it from the SC into the
desired court.
3 occasions where transfer MUST be ordered per cross-vesting legislation:
1. Where there are separate but related proceedings pending in a different court (not necessarily same
parties can be same fact situation), and the court considers it would be more appropriate for all
proceedings to be decided by the other court (eg s 5(2)(b)(i));
2. Where there is only a single proceeding pending, if it would be more appropriate for the matter to be
determined in another court (eg s 5(2)(b)(ii));
Three considerations
5
:

5
(A) whether the relevant proceeding, or a substantial part of it, would have been incapable of being instituted
in the first court, apart from cross-vesting scheme, and capable of being instituted in another; (B) the extent to
which the matters for determination are matters arising under or involving questions as to the application,

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A. Before the passage of the cross-vesting legislation, where would the case have been heard?
B. Extent to which the matters involve the application of the law of another jurisdiction? and
C. Interests of justice.
3. In either case - it is otherwise in the interests of justice that there be a transfer (eg s 5(2)(b)(iii)).
What does interests of justice dictate?
o Look at the 6 Spiliada factors (above) if there is a preponderance of connecting factors with one
court then it may be the most appropriate (BHP Billiton);
o The interests of justice are not the same as the interests of one party, and there may be interests
wider than those of either party to be considered ie so unlike with forum non conveniens, can take
into account effect on the system eg backlogs in a court (per HC in BHP Billiton);
o No onus of proof on either party issue is simply what do the interests of justice require? (Beston
Parks);
o Example:
! Beston Parks v Sexton (VSC, 2008; Hollingworth J):
! Facts: Swiss Bank, only Aus place of business in NSW. Lent money to Australians to buy
property in Qld. D applied to NSW SC asking for a transfer to Qld.
! Held: All 3 occasions satisfied here.
! 1) Separate but related proceedings? Yes, in Qld and NSW. Using Spiliada factors
relevant law is that of Qld, most of the parties, witnesses and documents in Qld, and less
expensive and inconvenient to run case in Qld. Connection with NSW? Ps office in NSW.
Thus more appropriate to hear in Qld.
! 2) A. Qld, B. Qld and C. Look at Spiliada factors above.
Transfers within Victoria
Courts (Case Transfer) Act 1991 (Vic);
Regulates case flow within Victorian Courts (MC " CC " SC);
Can also be used in conjunction with cross-vesting legislation (eg SC can lift a case up from MC to SC and
then transfer it to another jurisdiction);
To ensure that judicial resources matched to case needs;
Facilitates transfer of individual cases so that seriousness is matched to the skill, experience & authority of
the court;
To make general transfers from one court to another, to match case loads to court capacity.


interpretation or validity of a law of the other courts jurisdiction and not within the jurisdiction of the first court
apart from cross-vesting scheme; and (C) the interests of justice.

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TOPIC 4: Instituting Proceedings

Client Management
Legal Profession Act 2004 (Vic);
Must discuss with client:
o Alternatives to litigation (ADR Topic 2; settlement; or abandon);
o Process and consequences; and
o Legal costs and complaints handling procedure.
Letters of Demand
Prior to instituting proceedings, send a letter of demand to the prospective D demanding they do something
(eg pay money) and briefly explain why;
Encourages settlement;
If you dont send one, the court will penalise you with costs (unless good reason, eg limitation period).
Often send 2 letters: 1) aggressive, stipulating maximum amount to be claimed; 2) without prejudice
written at the top, stipulating lesser amount (due to admission of fault). The without prejudice means it
cannot be used in court except in assessing costs, where it shows a genuine attempt to settle # recoup costs.

Standing and Capacity

Standing (P)

To sue, the plaintiff needs sufficient interest, or standing, in subject matter of litigation;
Q for substantive law P needs to have substantive right to rely on cause of action on which claim based;
Eg the person injured (Torts) or a party to the contract (Contracts);
If P doesnt have standing, the court doesnt have jurisdiction to hear the matter.

Capacity (P and D)

P and D must have recognised legal capacity to sue / be sued;
Capacity determined by character of parties, not rights involved.

Examples:
o Person under disability

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! Means minor (<18 years old) or handicapped person (a person who is incapable by reason of
injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in
relation to the proceeding) (r 15.01 SCR);
! Must sue or defend by a litigation guardian (r 15.02);
! LG is not the solicitor, but someone who acts on behalf of the person under disability;
! Description of proceedings brought by a LG:
In the title:
AB, a minor, by CD her litigation guardian
Plaintiff
And
XYZ
Defendant
In the statement of claim:
1. Plaintiff AB is a minor and sues by her litigation guardian, CD.

o Corporation
! Corporation? Australian Company Number (ACN), ARBN, or Pty. Ltd. in title. Can check on
ASIC website;
! Full legal capacity, provided theyre incorporated;
! Description of proceedings:
In the title:
XYZ
(ACN ___ ___ ___) Defendant

In the statement of claim:
1. The defendant is and was at all material times a company incorporated [in Victoria]
pursuant to law and capable of being sued (McCabe soc).
! If a company has gone into liquidation, it loses its legal capacity. Can still sue, but need court
permission and different process.

o Unincorporated association
! Dont have legal capacity.

o Partnership
! The firm is not a legal entity, so youre suing all the partners;
! Description of proceedings (r 17.01(1)):
In the title:
Jeckyl, Hyde and Crusoe (A FIRM)
Plaintiff

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! Advantage of this description: dont have to list all the partners, get access to property owned by
partnership together, and only have to sue one of the partners.

o Privately owned company
! An indv carrying on a business under a name thats not their own;
! If you cant find owners name, can sue owner in the business name (r 17.10).

o Trustee or administrator
! O 16 outlines who has to be the party;
! Trust property all trustees must be a party;
! Estate of deceased person all executors or administrators have to be a party.

Originating Process: Writs, Originating Motion

Process

To commence proceedings you must file a document with the court, called an originating process
6
.
Generally, 2 ways to commence a proceeding (except where otherwise provided; r 4.01):
1. Writ; and
o Every proceeding shall be commenced by writ, subject to exceptions (r 4.04).
2. Originating motion.
o Used in limited circumstances;
o r 4.05 lists circumstances where you must use originating motion (eg (a) no D);
o r 4.06 lists circumstances where you may use either originating motion or writ ((a) it is unlikely
that there will be any substantial dispute of fact; and (b) for that reason it is appropriate that
there be no pleadings or discovery).
Note: Choosing the wrong originating process does not mean the court will wholly set aside the proceeding
(r 2.02). Courts options are listed below (p27).

You then file this at the court (r 5.11).
Take to court registry and hand it over to the Prothonotary, along with payment of fee. The Prothonotary, or
assistant, seals document (with stamp) and assigns a proceeding number. Limitation period stops the
moment this happens.

Writ pro forma

6
originating process means any process by which a proceeding is commenced, and includes a third party notice
and, where a counterclaim is made against a person not previously a party to the proceeding in which the
counterclaim is made, the counterclaim; (r 1.13).

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Document shall be prepared in accordance with these Rules (r 27.01);
Basic requirements (r 27.03):
- (1) A4 white paper;
- (2)(a) Can be double sided;
- (2)(b) (i) One staple in top left hand corner if single-sided, (ii) staples along left hand side if double-
sided, (iii) without obscuring writing or margin;
- (2)(c) Left hand margin of at least 25 mm, and top margin of 30 mm;
- (2)(d) Number pages consecutively;
- (2)(e) Double spacing;
- (3) Text shall be printed or typewritten, and shall be clear, sharp, legible and permanent;
- (4) Cannot use white-out;
- No folds or binding (r 27.02(13)); and
- Dates, amounts, numbers in figures not words (r 27.04).

# Must use Form 5A (r 5.02(1)):
Indorsement of claim on Writ

P can choose from two types (r 5.04(2)):
1. General indorsement; or
o (b) a statement sufficient to give with reasonable particularity notice of the nature of the claim
and the cause thereof and of the relief or remedy sought in the proceeding.
o A general statement which puts D on notice of the claim and foreshadows a statement of claim;
o Three elements from r 5.04(2)(b):
i. Nature of the claim;
ii. Cause of action relied upon (from Ruzeu
7
); and
iii. Relief or remedy sought.
o Want to word generally, because you cant include anything in your statement of claim that
wasnt in the general indorsement (per r 14.03(2), the courts have the power to let you add a new
cause of action in the statement of claim, but mostly they wont use it) # but, might not satisfy
Rule;
o It suffices if it conveys the information generally and without particularity save where and to
the extent to which particularity is indispensable to notify the required elements of the
endorsement, for example on some occasions, the identification of the instrument on which a
claim is founded (HC in Renowden);
o Example:

7
Court said cause is not directed to physical acts which caused the accident or injury, but the cause of action.

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! Ruzeu v Massey Ferguson: The plaintiffs claim is for damages for injuries he received to
his back in an accident which occurred on or about 2 December 1975 whilst he was in the
course of his employment with the defendant. The accident occurred as a result of the
negligence of the defendant, its servants and agents and the plaintiff claims damages.
! Held: Sufficient. Q of whether the indorsement complies with the rules is to be
determined by examining the indorsement and evidence is not generally admissible to
assist in that task. In the present case the particulars are: (iii) damages for (i) personal
injuries caused by (ii) the negligence of the defendant.

2. Special indorsement.
o (a) a statement of claim;
o If you want it to be a special indorsement, have to use heading Statement of Claim (r 5.04(3)),
otherwise it is treated as a general indorsement.

Challenging a General Indorsement

Any party can object to a document by making an application within a reasonable time and before they have
taken any fresh step after becoming aware of the irregularity (r 2.03).

Failure to comply?
See above.

Failure to comply with these Rules does not render a proceeding or any document a nullity (r 2.01(1));
Court may dispense with compliance with a Rule need reason (r 2.04);
The Court may (discretionary; r 2.01(2)):
(a) set aside the proceeding, either wholly or in part;
(b) set aside the document;
(c) exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding
generally.

Indorsement on Originating Motion

Must specify (r 5.05):
i. Relief or remedy sought;
ii. Act under which claim made, if any; and
iii. Question of law to be answered, if any.
Pleadings not required.


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Limitations of Action

Background

Limitation of Actions Act 1958 (Vic);
Time starts to run from when the cause of action accrued (ie all elements have occurred);
Before limitation period expires, you have to institute proceedings (get writ stamped).

Expiry of limitation period = a procedural defence (the right remains in existence, but may no longer be
enforced). Thus, the right may still be enforced in court where D forgets to raise defence, or waives his right
to plead the Statute of Limitation.

Rationale

The existence of the Statutes of Limitation is based on the policy that stale claims should not be brought;
This policy is justified in two major respects (per Colbran et al.):
8

1. Injustice; and
o It is oppressive and cruel to a D to have proceedings hanging over their heads;
o People should be able to arrange their affairs and utilise their resources on the basis that claims
cannot be made against them after a certain time (insurers, public institutions and businesses,
particularly limited liability companies, have a significant interest in knowing that they have no
liabilities beyond a definite period) thereby serving the public interest (NSW Law Reform
Commission);
o The attainment of justice is precarious where the relevant evidence is likely to be lost.
2. Efficiency.
o Litigants should be encouraged to bring their actions within a reasonable period since there is a
public interest in having claims settled as quickly as possible.

As McHugh J points out, In enacting limitation periods, legislatures have regard to all these rationales
[A limitation period] represents the legislature's judgment that the welfare of society is best served by
causes of action being litigated within the limitation period

Limitation periods

Simple contract actions (ie a contract supported by consideration) = 6 years (s 5(1)(a) LAA).
Tort actions, where no personal injury = 6 years (s 5(1)(a)).

8
Echoes the four broad rationales identified by McHugh J in Brisbane South Regional Health Authority.

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Defamation = 1 year (s 5(1AAA)).

Personal injury

Part IIA s 27D: For personal injury
9
/ death, limitation period expires after whichever of the 2 following
periods elapses first:
- 3 years from date on which the cause of action is discoverable by P;
OR
- 12 years from date of the act/omission alleged to have resulted in the death or personal injury (long-
stop provision).
Discoverable is defined in s 27F.
(1) A cause of action is discoverable/ on the first date that P knows / ought to have known of all of the
following facts
(a) the fact that the death/ personal injury concerned has occurred; AND
(b) the fact that the death/ personal injury was caused by Ds fault; AND
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the
bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the
person had the person taken all reasonable steps before that date to ascertain the fact.

Note: Part IIA applies to causes of action that accrued before 21 May 2003 unless proceedings had already
been commenced before 1 Oct 2003 (ie applies retrospectively).

What if the time limit has expired?
o Can ask D to waive defence;
o OR Can apply to a court for an extension (s 27K(1)). Application is made by summons (s 27M(2));
o Court can extend the time even if (a) period of limitation has already expired or (b) litigation has been
commenced (s 27M(1));
o s 27K(2)(b): Court may, if it decides that it is just and reasonable to do so, order an extension for any
period. s 27L(1): In deciding this, the court shall have regard to all the circumstances of the case,
including:
(a) Length of and reasons for the delay on the part of P;
(b) Extent to which, having regard to the delay, there is or is likely to be prejudice to D;
(c) Extent, if any, to which D had taken steps to make available to P means of ascertaining facts
which were or might be relevant to the cause of action of P against D;
(d) Duration of any disability or legal incapacity of P arising on or after the date of
discoverability;
(e) Time within which the cause of action was discoverable;

9
Personal injury includes any disease and any impairment of a persons physical or mental condition (s 3(1)).

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(f) Extent to which P acted promptly and reasonably once P knew that the act or omission of D,
to which the injury of P was attributable, might be capable at that time of giving rise to an
action for damages;
(g) The steps, if any, taken by P to obtain medical, legal or other expert advice and the nature of
the advice he or she may have received.
AND (2): To avoid doubt, the circumstances include:
(a) Whether the passage of time has prejudiced a fair trial of the claim;
(b) Nature and extent of Ps loss; and
(c) Nature of Ds conduct.
o Per Warren CJ in Clark v McGuinness, the discretion to extend under s 23A/ 23K requires applicant to
show its case is a just and reasonable exception to the rule that the welfare of the state is best served by
the applicable limitation period (relies on judgment of McHugh J in Brisbane).
The Q is, Is the prejudice to D so significant as to outweigh any legitimate claims by P and make their
imposition unjust and unreasonable?
o Examples:
! Tointon (VSC, 1986): Extension granted on appeal. Important factors: at all times D had behaved
courteously and promptly so no reason to punish them; on the other hand, they didnt say they
would be prejudiced in any particular way if extension granted; and D were warned throughout
that litigation was coming (accident in 1980, P made claim under WorkCover and in 1984 Ps
solicitors contacted employers insurer). If they refused extension, P would just sue solicitors, so
why make him go through 2 actions?
! Cf. Clark v McGuinness (VCA, 2005): Extension overturned on appeal. Facts: M alleged she had
been raped by C, most recently in 1983. For: M was young at the time, she came from a
background where such allegations are not made against someone so high up, she reported it to the
elders of her community and they told her not to do anything, she reported it to police, and she had
drug and alcohol problems over her life. Against: evidential problems for C, how can he prove
alibi etc = prejudice, could not get fair trial.
! NOW appears to be VERY DIFFICULT to get an extension of time.

Insidious diseases

s 27B(2): Part IIA does not apply to:
(d) Dust-related conditions (eg mesothelioma);
(e) Injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke; OR
(a)-(c) Certain statutory compensation schemes (Accident Compensation Act, Workers Compensation Act
and Transport Accident Act).

In these cases:
o IF action for damages is for negligence, nuisance or breach of duty, use s 5(1A):
3 years from the date on which the person first knows

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(a) that he has suffered those personal injuries; AND
(b) that those personal injuries were caused by the act or omission of some person.
o Negligence, nuisance or breach of duty includes intentional torts (Stingel);
o Softer than s 27D because no long-stop provision and requires subjective knowledge.

o OTHERWISE, use s 5(1AA):
3 years from the date on which the cause of action accrued.

What if the time limit has expired?
o Use s 23A:
(1)-(2) Extension of limitation period re damages for negligence, nuisance & breach of duty resulting
in personal injury, if the court decides it is just and reasonable to do so.
o Per s 23A(4), extension may be granted even if (a) time limit has already expired, or (b) action has been
commenced;
o Factors the same as in s 27L(1) (s 23A(3));
o Argue as per above.

Stingel v Clark (HC, 2006):
Facts: S was raped on 2 occasions by C in 1971. When McGuinness began proceedings against Clark, S
started seeing C on TV which triggered post-traumatic stress disorder (around 1999/2000). In 2002, she
commenced proceedings. S wanted to use s 5(1A) note: this was before Part IIA introduced.
C argued that Pmt did not intend mental illness to fall within s 5(1A) it was meant for dust diseases, lung
cancer etc. HC rejected this argument, saying it included mental illness. Even though HC gave a very liberal
interpretation to s 5(1A), this is irrelevant as to use s 5(1A) have to fall within the categories in s 27B.



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TOPIC 5: Multiple parties and causes of
action

General

Advantages: encourages efficiency, by avoiding multiplicity of proceedings; avoids possibility of
inconsistent judgments; and promotes finality in litigation.
s 29(2) Supreme Court Act 1986 (Vic) Every court [exercising jurisdiction in Vic in any civil
proceeding]must so exercise its jurisdiction in every proceeding before it as to secure that, as far as
possible, all matters in dispute between the parties are completely and finally determined, and all
multiplicity of proceedings concerning any of those matters is avoided.

Res judicata and Issue estoppel

Res judicata

The doctrine of res judicata prevents relitigation of a matter on which the court has decided;
If one party does try to relitigate, D can plead res judicata;
Sometimes described as cause of action estoppel.

Covers:
o Claims made in an earlier proceeding; and
o Those claims which could have been made (called Anshun estoppel).
! Parties should bring forward their whole case in the earlier proceeding;
! Eg in Port of Melbourne Authority v Anshun (No 2) (HC, 1981), a worker had been injured by a
crane hired by Anshun from the Port of Melbourne Authority. In an earlier action brought by the
injured worker against Anshun and the Authority, the defendants sought contribution from each
other. The Authority was found to be 90% liable. Some time later, the Authority realised they
had an indemnity from Anshun pursuant to the crane hire agreement.
Held: A party will be estopped from bringing an action which, if it succeeds, will result in
conflicting judgments. It is enough that the judgments appear to declare rights which are
inconsistent in respect of the same transaction. Here, the judgment that the Authority seeks to
obtain would conflict with the existing judgment, though the new judgment would be based on a
different cause of action, a contractual indemnity.

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Issue estoppel

Prevents a party from re-opening an issue that has previously been determined between the same parties;
Issue = a question thats come up in earlier proceeding (eg a finding of fact).

Joinder of parties

Terminology:
- Joining = when starting action;
- Adding = subsequent addition of parties once writ has been started.
Same rules apply whether joining Ps or Ds. But have to get Ps consent, not Ds.

By the Plaintiff

Permissive joinder

r 9.02: Two or more persons may be joined as plaintiffs or defendants in any proceeding
(a) where
(i) if separate proceedings were brought by or against each of them, some common question of
law or fact would arise in all the proceedings; AND
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are
in respect of or arise out of the same transaction or series of transactions; OR
(b) where the Court, before or after the joinder, gives leave to do so.

(a) Joinder as of right
o Meaning of transaction:
! Birtles v Cth (1960, SCV)
! Facts: Birtles had a workplace accident. He sued occupiers of land, the Cth, and his employers.
His solicitors failed to start action within limitation period. Can he join these solicitors under
9.02?
! Held (Adam J): YES. Transaction means the accident, the injury sustained by the plaintiff, and
the further matters of relevance in the action against the original defendants; like how the case
was run;
! Interpreted broadly concern that, if litigated separately, B might fall between two stools ie
he might fail in the action against the original Ds because of the defences taken, and then fail
also in the new action against the solicitors, heard before another tribunal, because he failed to
satisfy that tribunal that these defences were soundly based.

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o Meaning of series of transactions:
! Payne v Young (1980, HCA)
! Facts: 7 Ps operated different abattoirs in WA. 7 Ds were different abattoir inspectors. Ps didnt
want to pay a fee for inspections, and sued inspectors for their money back. In each plaintiffs
claim, a declaration was sought as to the invalidity of the regulations. Ds argued that joinder
could not occur because the claims did not arise out of the same series of transactions;
! Held (majority): Per Mason J, joinder is not authorised when the relief claimed is in respect of,
or arises out of, two or more different series of transactions, when the participation of each
individual plaintiff is limited to participation in one series of transactions, the other plaintiffs not
participating in that series (at 618);
! Here, 7 separate and distinct transactions each series of transactions was peculiar to each
individual plaintiff;
! Interpreted narrowly (Murphy J dissenting, saying it should be construed liberally).
o Can also be attacked under r 9.04 (see below).

(b) Discretionary joinder:
o If you can satisfy one of the limbs of (a), will usually get permission under (b);
o Bishop v Bridgelands Securities (1990, FCA)
! Facts: The proceedings concerned representations made in letters sent by the respondent to the
applicant and some 114 other persons who, as the result of the representations, had invested
moneys on an unsecured basis with a company which failed. The applicant sought declarations
that the respondents had engaged in conduct in contravention of the TPA. The investors claims
could not arise out of the same transaction or series of transactions (per Payne). The applicant
sought the Courts leave to join.
! Held (Wilcox J): Discretion is unconfined. Depends upon the facts of the particular case. The
Court should take whatever course is most conducive to a just resolution of the disputes between
the parties the Court should try and limit costs and delay of litigation, but ensure that joinder is
unlikely to result in unfairness to any party;
! Examples:
Will the court permit joinder?
" If Ps have limited means (these parties will lose their rights if joinder not permitted);
" If D has limited resources (eg here, it would undesirable to take a course which would allow
1 claimant to recover in full, while others could not);
! If Ps are represented by different solicitors;
! If the differences between claims overbear that which is common, making it inexpedient; or
! The sheer number of claims, if joinder is permitted, will impose an undue burden on D.
! Here, apart from reliance and damage, its substantially a documentary case. There would be no
extra burden imposed on D in arguing the proper construction of those letters in the context of a
claim by 114 persons rather than 1. The major complication would be the reliance evidence, but

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this burden was not so great as to outweigh the benefits (affidavits could be directed, and the
respondents could determine which applicants would be required for cross-examination).
o A & J Partitions v Jolly (1993, SCV):
! Facts: 4,488 shareholders in Pyramid and related building societies sought leave to issue one
writ. All Ps are relying on the same statements made by Vic Govt on television;
! Held: Given permission to join. Elderly investors could not bring separate proceedings.

Title to proceedings where 2 plaintiffs:
A.B. and C.D. Plaintiff
Or
A.B. First Plaintiff
And
C.D. Second Plaintiff
See Footnote 11 for when >2 plaintiffs.

Compulsory joinder

r 9.03: Joinder of necessary parties
(1) where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff
(a) all persons so entitled shall be parties to the proceeding; AND
(b) any person who does not consent to being joined as a plaintiff shall be made a defendant.
10


(2) Where the plaintiff claims relief against a defendant who is jointly and severally
11
liable with some
other person, that other person need not be made a defendant to the proceeding.

(3) Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that
contract claims against some but not all of those persons, the Court may stay the proceeding until the
other persons so liable are added as defendants.

Joinder of claims

By the Plaintiff

r 9.01: A plaintiff may join any number of claims against a defendant whether the plaintiff makes claims in
the same or different capacities and whether the claims are made against the defendant in the same or
different capacities.

10
Doesnt make them liable, but forces them to be involved.
11
If severally liable, can sue either for all the money.

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r 9.04: Joinder inconvenient
Where any joinder of claims or of parties may embarrass or delay trial of proceeding or cause prejudice or is
otherwise inconvenient, the Court may order that
(a) there be separate trials;
(b) any claim be excluded;
(c) any party be compensated by an award of costs or otherwise for being required to attend, or be
relieved from attending, any part of a trial in which that party has no interest;
(d) any person made a party cease to be a party on condition that that party be bound by the
determination of the questions in the proceeding or without any such condition.

Just having >1 P or D is not enough, thats the whole point of joinder;
What is embarrassing?
o .. unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does
not know what is alleged against him (SCV in Meckiff v Simpson [1968] VR 62 per Winneke CJ,
Adam and Gowans JJ cited by Bongiorno J in Gunns July 2005 judgment, para 15);
o In Gunns, Gunns joined 20 defendants using permissive joinder under r 9.02, and joined many
causes of action under r 9.01. D claimed this was embarrassing. Bongiorno J (August 2006) said that
V3 is still embarrassing as a statement of claim, as too much has been sought to be alleged against
too many defendants in the one proceeding (at 23). The cost to individual defendants of dealing
with a case which concerns not only that defendant, but 19 others at the same time, will be extremely
burdensome (at 25). Here, every defendant has to be concerned with the whole trial, even if they
were involved in only a small aspect of it (at 27). His Honour struck out V3, stayed the proceedings
and gave Gunns 52 days to ask for leave to proceed.

By the Defendant

Counterclaim
D who has a claim against P may counterclaim: r 10.02(1);
Per r 10.02(2), r 9.01 applies as if P were D and D were P;
Pleaded in a document called a Defence and Counterclaim: r 10.02(3) (see Topic 9);
D may join with the plaintiff as defendant any other person to the counterclaim: r 10.03. But r 9.02
must be satisfied. Where D joins a person as defendant to the counterclaim, the Defence and
Counterclaim shall contain a second title of the proceeding showing who is plaintiff to the counterclaim
and who are defendants to the counterclaim (r 10.04(1));
The person joined as defendant to counterclaim:
- Shall be served a copy of the Defence and Counterclaim personally and within 30 days (r
10.04(2)(b), unless person is already a party then use ordinary service per (a)). Counterclaim is
Form 10A, if D not already a party (r 10.04(5));

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- Upon service, becomes a party to the proceeding and is placed in the same position as if he had
been sued as a defendant in the ordinary way by the defendant making the counterclaim (r
10.04(3));
- Needs to enter a notice of appearance (Form 10B, r 10.04(6));
- Per r 10.04(4), Orders 8, 11, 14 and 21 shall apply as if (a) the counterclaim were a writ the
indorsement of claim on which constituted a statement of claim in accordance with r 5.04; (b) the
defendant making the counterclaim were a plaintiff in the party; and (c) the person joined were a
defendant in the proceeding.
Rules 10.02 and 10.03 are subject to r 9.04 (r 10.06);
The counterclaim is deemed to have commenced on the date the original action commenced (s 30 LAA).
Can be a way around expiration of limitations period.

Set-off
A statutory defence to Ps action: r 13.14;
Where D has a claim against P for the recovery of a debt or damages, the claim may be relied on as a
defence to the whole or part of a claim made by P for the recovery of a debt or damages and may be
included in the defence and set off against Ps claim, whether or not D also counterclaims for that debt
or damages;
A shield (cf. counterclaim, which is a sword);
Single judgment.

Third party procedure
r 11.01: Claim by third party notice
Where D claims against a person not already a party to the proceeding (the third party):
(a) any contribution or indemnity
12
;
(b) any relief or remedy relating to or connected with the original subject matter of the
proceeding and substantially the same as some relief or remedy claimed by P; or
(c) that any question relating to or connected with the original subject matter of the proceeding
should be determined not only as between P and D but also as between either or both of
them and the 3rd party
D may join 3rd party as a party to the proceeding and make the claim against that 3
rd
party by filing and
serving a third party notice.


12
Indemnity is where D is entitled to recover from the 3
rd
party the sum he is found liable to pay to P. Eg an
agent can be indemnified by his principal in respect of liability incurred by the agent in the course of the agency
(employers vicarious liability for torts of employees, a guarantors liability to a creditor to satisfy a debt). s 23B
Wrongs Act 1958 (Vic) provides for a right of contribution between concurrent tortfeasors, with the amount of
contribution recoverable from a concurrent tortfeaser being such as may be found [by the court] to be just and
equitable having regard to the extent of that persons liability for the damage.

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r 11.02: A third party notice shall be in Form 11A and shall be indorsed with a statement of claim (like
a writ prepared by D vis--vis the 3
rd
party);
Format: THIRD PARTY NOTICE

BETWEEN
A.B Plaintiff
And
C.D. Defendant
And
E.F. Third Party

r 11.04(1): The filing of a third party notice results in the third party becoming a party to the
proceeding and (2) the third party notice is to be filed and served in the same manner as originating
process (eg writ);
r 11.05(1): Cannot file TP notice until D has served a defence;
r 11.05(2): TP notice may be filed:
(a) within 30 days after the time limited for the service of a defence; or
(b) at any time with the leave of the Court or the consent in writing of the plaintiff and any other
party who has appeared.
r 11.07: (1) Serve within 60 days after filing, and serve with other things in (5);
Note: If P is suing D1 and D2, and D1 wants to sue D2 for any relief of the kind described in r 11.01
then use r 11.15 this creates an action between the co-defendants. Still use Form 11A (r 11.15(4)(a)),
except where claiming contribution pursuant to Wrongs Act and Footnote 28 (Form 11B, r 11.15(5)).

* If D brings in 3
rd
parties, does not create an action between P and 3
rd
parties, so P should bring them
into his action (through r 9.06(b)).

Amendment, addition, removal and substitution

Amendment (to correct mistakes)

r 36.01(1): For the purpose of
(a) Determining the real question in controversy; or
(b) Correcting any defect or error in the proceeding; or
(c) Avoiding multiplicity of proceedings
the Court may, at any stage, order that any document in the proceeding be amended or that any party have
leave to amend any document in the proceeding.
Document includes originating process, an indorsement of claim on originating process and a pleading (r
36.01(2));

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Includes amendment to:
- Add or substitute a cause of action arising after the commencement of a proceeding (r 36.01(3));
- Correct a mistake in the name of a party, even if this substitutes another person as a party (r 36.01(4)).
Can amend even if the relevant limitation period has expired, provided that any other party would not by
reason of the order be prejudiced in the conduct of their claim or defence in a way that could not be fairly
met by an adjournment, an award of costs or otherwise (r 36.01(6)).

r 36.03: A party may amend any of pleadings (a) once before the time has come for the close of pleadings
[subject to r 36.04: the Court may, on application by any party made within 21 days after service of
amended pleading, disallow the amendment or allow it either wholly or in part
13
]; or (b) at any time with
Courts leave or consent of all parties.
Note: only applies to pleadings to amend a writ have to use r 36.01 and get Courts leave.

Must distinguish amendment from previous pleading (cross out old parts, underline new parts, and called it
eg Amended Statement of Claim): r 36.05(4);
r 36.05: File copy of amended pleading [(1)(a)], and serve copy on all parties [(1)(b)];
What if D has filed and served Defence, and then received Amended SOC and has to amend defence?
Amending party will have to pay costs thrown away. D has 30 days from Amended SOC to serve
Amended Defence, if necessary note: if no amended defence, original defence will be used (r 36.06).

Addition, removal and substitution (to add new parties)

r 9.06: Addition, removal, substitution of party
At any stage of a proceeding the Court may order that
(a) any person who is not a proper or necessary party cease to be a party;
(b) any of the following persons be added as a party, namely
(i) a person who ought to have been joined as a party
14
or whose presence before the Court is
necessary to ensure that all questions in the proceeding are effectually and completely
determined and adjudicated upon
15
; or
(ii) a person between whom and any party to the proceeding there may exist a question arising out
of, or relating to, or connected with, any claim in the proceeding which it is just and
convenient to determine as between that person and that party as well as between the parties to
the proceeding (look at things like cost, prejudice, delay);
(c) a person to whom para (b) applies be substituted for one to whom para (a) applies.

13
When will court disallow? See AON Risk Services, p 8.
14
Ie compulsory joinder, r 9.03.
15
Necessary? If P trying to add another P or D, just have to satisfy r 9.02. If D trying to add another D, courts
are reluctant to let him use this rule, as it doesnt benefit them, have to convince court that case couldnt go
ahead without that extra defendant (otherwise use O 11). Or use (b)(ii) easier.

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If trying to add a plaintiff, you have to get their consent in writing or in such other manner as the Court
orders (r 9.07(1)).

Interveners
o r 9.06(b) operates to allow someone who is not already a party to intervene in a proceeding;
o Eg the court may give leave to intervene to a person whose legal interests will be affected by
judgment in a matter, but whose submissions would not be made by the existing parties to the
proceeding and whose submissions would assist the court in reaching a correct determination;
o An intervener will usually join as a defendant, but can intervene as a plaintiff;
o Eg Haddrill v SA Railways Commissioner and Another:
! Facts: A wrongful death action was brought against D by the children of Mr Haddrill, who had
been killed as a result of injuries caused by D. His widow was not the mother of the children,
and wanted to be joined as a plaintiff under the r 9.06-equivalent;
! Held (SC of SA): Joined widow as plaintiff, even though neither Ps nor D wanted her to
intervene. The Court considered that the widows presence was necessary to enable the court to
decide the matter fully.
o See also Levy.

Consolidation

r 9.12(1): Where two or more proceedings are pending in the Court, and
(a) some common question of law or fact arises in both or all of them;
(b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of
transactions; OR
(c) for any other reason it is desirable to make an order under this Rule
the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately
after the other, or may order any of them to be stayed until after the determination of any other of them.

Amicus curiae and interveners

Amicus curiae = a friend of the court;
Discretionary;
The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission
on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have
been assisted (Brennan CJ in Levy v Victoria);
Unlike an intervener, an amicus does not seek to be made a party;
An amicus will be heard when:
- Court is of opinion that it will be significantly assisted;

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- Provided that any cost to the parties or delay;
- Is not disproportionate to the assistance that is expected.

Eg Levy:
! Facts: Animal rights activist Levy was arrested and convicted of entering a duck hunting area to protest
and gain publicity for his cause. In the course of Ls defence he argued that the regulations curtailed his
freedom of expression and hence were unconstitutional. It considered major issues about the
constitutional right to freedom of political expression, and a number of media organisations and interest
groups wanted to put submissions before the court as either interveners or amicus curiae;
! Held (Brennan CJ):
! The media proprietors (eg Fairfax, Nationwide News, Herald & Weekly Times, Channel 7) were given
leave to intervene on the basis that they could show that their interests would be substantially affected
by the judgment because of the precedent which would be set;
! The industrial associations (eg Australian Press Council), on the other hand, could not show that their
interests would be affected but could show that their submissions would assist the court and the Court
accepted that it would be significantly assisted by their submissions (so heard as amicus curiae).



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TOPIC 6: Groups as parties:
Representative Proceedings and
Class actions

Background

If more than one person wants to sue, they can:
- Sue individually;
- Join all Ps under r 9.02; or
- Choose someone who represents the group to sue on their behalf (this Topic).
Class actions = representative proceedings;
Advantages of representative proceedings:
- More efficient;
- Assists those who would/could not bring legal proceedings on their own (eg small claims, or poor
claimants as represented parties are not liable for costs, Markt); and
- Prevents inconsistent judgments.

Traditional same interest proceeding

Order 18: Representative proceeding;
NOWADAYS only use if you want one D to be representative of others. Eg if youre trying to sue an
incorporated association (because you need to sue the people behind it).

r 18.01: This Order applies where numerous persons have the same interest in any proceeding, but does not
apply to (a) a proceeding under Part 4A of the Act (see below); (b) a proceeding concerning (i) the
administration of the estate of a deceased person; or (ii) property subject to a trust.
r 18.02: A proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against
any one or more persons having the same interest as representing some or all of them.

Meaning of same interest:
o Same interest requirement is NOT satisfied where group have separate but otherwise identical
contracts, or where damages have to be separately assessed (Markt v Knight Steamship, 1910 UK
Court of Appeal);

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! Eg in Markt, the cargo owners had identical contracts subject to minor differences with the
shipping company (who allowed contraband on a ship, so it was sunk with all the contraband
and legitimate cargo). Court said the cargo owners did not have the same interest.

o BUT High Court in Carnie v Esanda said the rule should not be interpreted restrictively;
o ASK:
Do the plaintiff and the members of the represented class have a community of interest in the
determination of some substantial issue of law or fact? (McHugh J)
Is there a significant question common to all members of the class and they stand to be equally
affected by the relief? (Toohey & Gaudron JJ)
o Same interest requirement CAN be satisfied where claims arise under separate contracts (cf. Markt);
o Relief sought must be beneficial to all members of the class, otherwise they dont have the same
interest (eg in this case, the Carnies were seeking declaratory relief that went no further than
determining the meaning of the Act so far as it affects the contracts persons who did not wish to
take advantage of this judgment were under no obligation to do so);
! Carnie (1995, HC):
! Facts: Mr and Mrs Carnie were farmers and borrowed money from Esanda. They sought relief
by way of declaration that certain variation agreements were in breach of the Credit Act 1984
(NSW). They sought to represent all other persons, party to similar agreements with the
defendant;
! Held (unanimous): They CAN bring representative action;
! Even though the Carnies and represented parties had separate contracts, they had the same
interest in testing those contracts against the Act to see if they were in breach.

o So you can use O 18 for contracts. What about torts (separate damages)?
Toohey & Gaudron JJ in Carnie quoted Lord Macnaghten in Bedford v Ellis, decided before Markt,
saying you have to consider what is common to the class, not what differentiates the cases. And the
High Courts evident desire to interpret rule broadly (its purpose is to facilitate the administration of
justice/ convenience). => Presumably, wouldnt be fatal.

Court has overriding discretion to refuse representative proceedings, even if same interest (see r 18.02);
Eg res judicata issues where the class have other rights which they might be estopped from subsequently
arguing (Toohey & Gaudron JJ in Carnie).

Identification of the class

Not necessary for representatives to identify every member of the class just identify class with sufficient
particularity (Carnie v Esanda);
Eg in Carnie, the statement of claim described class as, Those who have a credit, sale or loan contract with
respondent that has been varied in a manner inconsistent with the Credit Act. Sufficient, as Esanda knows

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or has the means of knowing who was in the class (E has the contracts). Per Toohey & Gaudron JJ, The
class is not open ended.

Federal Court opt out proceedings

Opt-in vs. opt-out

Opt-in = all members of the representative group must elect to join the represented group;
Opt-out = all members of the represented group are bound by a judgment unless they decide to opt out of
the group;
Opt-out is preferred because most people wont do anything, so at least this way theyll have a shot at it.

Part IVA of the Federal Court of Australia Act 1976

Can a representative proceeding be commenced?

ONLY APPLICANTS CAN BE REPRESENTATIVES (NOT FOR RESPONDENTS).

Definitions (s 33A):
- Proceedings are called representative proceedings;
- Person who commences the proceeding = representative party;
- Members of group on whose behalf the proceeding is commenced = group members.

s 33C(1): A proceeding may be commenced where:
(a) 7 or more persons have claims against the same person; AND
(b) the claims of all those persons are in respect of or arise out of the same, similar or related
circumstances; AND
(c) the claims of all those persons give rise to a substantial common issue of law or fact.

Interpretation:
o Meaning of same person:
! Every group member must have a claim against every respondent (Sackville J in Philip Morris v
Nixon, 2000 FFC);
! In this case, every member was suing only 1 of the 3 respondent tobacco companies;
! Heavily criticised in Bray v Hoffman-La Roche (2003, FCAFC).
Per Finkelstein J, the result of Philip Morris is so undesirable that it should be avoided at all
costs. There is nothing in the language of s 33C(1) which requires that result. It can
immediately be acknowledged that a properly constituted representative proceeding must

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involve a group of seven or more persons each of whom has a claim or claims against one
person. But that is all the section requires. The result in Philip Morris undermines all the
objectives of Pt IVA, the reduction of legal costs, the enhancement of access by individuals to
legal remedies, the promotion of the efficient use of court resources, ensuring consistency in the
determination of common issues, and making the law more enforceable and effective.
! VLRC (2008) and Federal A-G also disagreed with Sackville J, saying it should be sufficient if
each member has a claim against one respondent;
! But its still binding precedent.
o Meaning of same, similar or related circumstances:
! If the individual claims of each member of the represented group had to be pleaded by reference
to specific dates and events, the representative procedure might well be rendered ineffective for
the very kind of group claim it is intended to facilitate (Philip Morris);
! So if cause of action arose on different dates, difficult to use procedure;
! Eg in this case, Sackville J said that the case involves vastly different forms of advertising,
promotion and other public statements by the 3 respondents over 4 decades. The circumstances
of each of the thousands of claims pleaded in the statement of claim are so disparate and involve
such varied conduct on the part of the several respondents that they cannot be said to arise out of
related circumstances;
! Criticised.
o Meaning of substantial common issue:
! A real, not trivial, issue.

s 33C(2): Representative proceeding may be commenced whether or not:
- Damages are sought [(a)(ii)], even if damages require individual assessment [(a)(iii)];
- Relief is the same for each person [(a)(iv)]; or
- Separate contracts or transactions are involved [(b)(i)], or involves separate acts or omissions [(b)(ii)].

s 33G: Representative proceedings cannot be commenced if only reason P is in the Federal Court is because
of cross-vesting (invalid anyway, see Re Wakim).

Commencing a representative proceeding

Representative party must have standing of their own (s 33D(1)) and satisfy s 33C.

s 33H: Originating process
(1) An application [ie writ] commencing a representative proceeding, or a document filed in support of such
an application, must, in addition to any other matters required to be included:
(a) Describe or otherwise identify the group members to whom the proceeding relates; and
(b) Specify the nature of the claims made on behalf of the group members and the relief claimed; and
(c) Specify the questions of law or fact common to the group members.

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Not necessary to name the members, or specify the number of group members (s 33H(2)).

Consent of a person to be a group member is not required (s 33E(1), exceptions in (2) eg Govt);
BUT
Group member may opt out:
o s 33J(1): court must fix a date before which a group member may opt out of a representative
proceeding;
o s 33X(1): group members must be notified that the proceeding has been commenced, that they have
the right to opt out, and the deadline for opting out;
o Under s 33Y(4), the court can order that notice be given by any sorts of means (eg high circulation
newspapers, radio or TV). BUT the court is not to order personal notice, unless its reasonably
practicable to do so and not unduly expensive (s 33Y(5));
o s 33J(2): group member may opt out by written notice before the date so fixed;
o s 33J(3): court can extend opt out period;
o s 33J(4): hearing of matter must not commence before the opt out period has expired w/o leave.

Note: Litigation funding has effectively changed system from opt-out, to opt-in. Because people who want
litigation funding have to sign contract (agreeing that the funder is entitled to a certain proportion of the
damages), and hence only those who want to join and sign will participate. Ignored what Pmt decided, and
became an opt-in system. In Fed Govt report they recommended that this issue be looked at. See Financial
Redress (one step is agreeing to litigation funding agreement).

Who pays?

Costs can be ordered against the representative party (plaintiff) or the respondent (defendant), but not the
group members (s 43(1A) for Federal Court; for Supreme Court use s 33ZD);
Except for sub-groups ie where theres a sub-group amongst the group members (eg where there are
additional issues to determine for the sub-group (s 33Q of FCAA), or an individual has additional issues to
determine (s 33R)). In these cases, the sub-group representative or the individual are liable for costs
associated with those additional issues;
Note: if the representative proceeding succeeds, costs are obtained from the judgment, so the group
members do indirectly pay for costs. If parties win, the court will give judgment and its paid into a fund.
Members then apply for claim to that fund.

Discontinuing

Representative party is not allowed to settle proceedings without the courts approval (s 33V).

Court may order the proceeding discontinue where:

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- Group number drops below 7 (s 33L);
- Cost of identifying group members and distributing proceeds would be excessive (s 33M); or
- Interests of justice require (s 33N).

s 33N(1): The Court may, on application by the respondent or of its own motion, order that a proceeding no
longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:
(a) the costs that would be incurred if the proceeding were to continue as a representative proceeding are
likely to exceed the costs that would be incurred if each group member conducted a separate
proceeding; or
(b) all the relief sought can be obtained by means of a proceeding other than a representative proceeding
under this Part; or
(c) the representative proceeding will not provide an efficient and effective means of dealing with the
claims of group members; or
(d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

Example: Johnson Tiles v Esso Australia
! Facts: Gas explosion at plant owned by Esso in Longworth. It stopped gas for 2 weeks in Vic. Group
was consumers of gas. Initially, they brought an action under negligence and s 52 TPA in the FCA,
but this was struck out and eventually the proceedings were transferred to the SCV.
! In the FCA, Esso argued that faced with this claim of horrendous size, the interests of justice
required it to be dismantled under s 33N or it was an abuse of process. Furthermore, 3 representative
proceedings were started against Esso for different but overlapping groups;
! Held (Merkel J):
! Not an abuse of process (solicitors acting legitimately, not trying to torture Esso, and court can
control proceedings once it got to directions hearing);
! For s 33N, you cannot merely argue that the group is too big (thats why we have representative
proceedings). Court has powers to make sure the case is manageable, eg by consolidating group
proceedings, which was done here.

Supreme Court of Victoria

Supreme Court Rules:
o Order 18A;
o Came into operation in 1999;
o Based on Part IVA of Federal Court of Australia Act;
o Validity of the order was unsuccessfully challenged in Schutt Flying Academy v Mobil;
o But Court of Appeal suggested amendment to Supreme Court Act, and this was done;
o DONT USE O 18A, USE BELOW.


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Supreme Court Act:
o Part 4A;
o Came into operation in 2000;
o Based on Part IVA of Federal Court of Australia Act;
o Also unsuccessfully challenged in Mobil Oil v Victoria (2002, HC);
o Establishes an opt-out system of group proceedings;
o Summary of sections (essentially the same, just remember its plaintiff and defendant):
- Definitions s 33A;
- Commencement of proceedings s 33C;
- Standing s 33D;
- Consent s 33E;
- Originating process (note: writ instead of application) s 33H (indorsement must include in
(2), not necessary to in (3));
- Right of group member to opt out s 33J;
- Fewer than 7 group members s 33L;
- Distribution costs excessive s 33M;
- Proceeding not to continue s 33N;
- When notice to be given s 33X; and
- Notices under s 33X s 33Y (ss (3) and (4), not (4) and (5)).



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TOPIC 7: Service

General

Purpose of service:
- To notify D theyre being sued; and
- A way the court can get jurisdiction over D (see p 16).

Personal service

When?

Documents need not be served personally unless specifically required: r 6.01;
Only personally serve if you have to, as it costs money;
Originating process must be served personally: r 6.02(1).
Eg writ, subpoena, third party notice (see r 11.04(2)).

How?

r 6.03(1): Personal service of a document is effected by
(a) leaving a copy of the document with the person to be served; OR
o Not necessary that its nature be told to the person (cf. (b), Ainsworth);
o Physical possession is not required (eg in Ainsworth the SOC was handed to the respondents
attorney who was standing next to the respondent);
o Why? The law presumes that the person will become aware of the document (Kirby ACJ).
(b) if the person does not accept the copy, by putting the copy down in the person's presence and telling the
person the nature of the document.
o Explanation of the nature is required to fix the person with all of the consequences that may
follow (Kirby ACJ).

Examples:
o Grazcyk v Grazcyk (1955 SCV): Process server could not leave copy with wife, so he yelled out I
am being prevented from serving you with a notice required to be served on you personally. It is
alleged that you have committed adultery with this man, and this notice is to give you warning of that

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fact. I intend to push the notice under the door for you. Held: He complied with r 6.03(1)(b) he got
as close as he could, and told her the nature of the document;
o Ainsworth v Redd (1990 NSW CA):
! Facts: Appellant sued respondent for defamation. Respondent lived in USA but was temporarily
in Sydney. Process server held out the statement of claim to the respondent at arms length and
said: These documents are for you. The nature of the documents was not identified. The
respondents attorney took the documents. The respondent was overheard to say to his attorney:
We had better take a look at these.
! Valid service?
! Held (unanimous): YES;
! Kirby ACJ: Relevant object is to ensure that originating process in form of a document will
come to the notice of person named as a party so that any later default in defending the Ds
position is fairly to be attributed to a decision of that person;
! Conclusion that service invalid here would frustrate purpose of Rule.

r 6.03(2): In the case of originating process, the copy for service shall be sealed in accordance with r 5.11
(or attach a filing confirmation notice if filed electronically). Hence get the Prothonotary to seal x+1 writs,
where x= number of persons to be served;
r 6.03(3): To effect personal service it shall not be necessary to show the original document (court has it).

Alternatives to personal service

r 6.09: Ds solicitor may make a note on a copy of the doc served that service is accepted on behalf of D;
r 6.11: If doc left with someone other than D and later brought to Ds attention, doc taken to have been
validly served on day it came to Ds notice (could have been used in Ainsworth);
r 6.14: Parties to a contract can specify how service should occur, and service in accordance with the
agreement shall be sufficient service.

Special parties

Corporations

r 6.04(a) Leave with (i) mayor, chairman, president or other head officer; or (ii) town clerk, clerk,
treasurer, manager, secretary or other similar officer of the corporation.

s 109X Corporations Act 2001 (Cth): Service (including service of originating process) may be effected on
company by:
- Leaving/posting document to registered office;

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- Delivering doc personally to director of co who lives in Australia; or
- If co in liquidation or administration, leaving/posting to liquidators / administrators address.

For foreign corporation, use s 601CX (leave at or send to the registered office of the body, (1)(a); leave at or
send to the address of a registered agent in Aus, (1)(b)(i); or serve at principal place of business in Aus,
(2)(a)).

Minors

Minor = person < 18;
r 6.04(b) serve a parent or guardian of the minor; or where there is none, serving the person with whom
minor resides or whose care s/he is in.

Handicapped persons

r 6.04(c) personal service on (i) person who would be entitled to be litigation guardian if there is an
eligible person (r 15.03(2), person who is authorised to conduct legal proceedings in the name of or on
behalf of the person); or (ii) if not, person with whom party resides or whose care s/he is in.

Cth Govt

r 6.04(d) on (i) Secretary to the Attorney-General's Dept or (ii) the Australian Government Solicitor.

Vic Govt

r 6.04(e) Victorian Government Solicitor.

Partnership

r 17.01: Partners may sue/be sued in firm name;
r 17.03(1): Originating process in a proceeding commenced against partners in the firm name under Rule
17.01 may be served on
(a) any one or more of the partners; or
(b) any person at the principal place of business of the partnership in Vic who appears to have control or
management of the partnership business there.

Motor vehicle injuries

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r 6.05(1): Personal injury/death arising out of motor vehicle accidents (serve defendant and TAC);
Why? Because the compensation will come from the TAC.

Proof of service

How do you prove D was validly served (eg if he does not enter an appearance)?

r. 6.17: Get an Affidavit of Service;
(1) In the case of personal service, it has to state:
(a) Name of person who served document;
(b) Hour, day and date served;
(c) Place of service; and
(d) Way in which the person served was identified
16
.
(2) In any other case of service, it shall state with relevant dates the facts constituting service;
(3) Must exhibit a sealed copy of originating process with the affidavit of service (thats why you got +1).

Ordinary service

r 6.07(1): Where personal service not required, document may be served by:
(a) leaving document at the proper address of the person to be served;
(b) posting document to person to be served at the proper address;
(c) where provision made by/under any Act for service of a document on a corporation, serving in
accordance with that provision;
(d) where solicitor has facilities for the reception of documents in an document exchange (DX), by leaving
the document in the document exchange; or
(e) where the solicitor has fax facilities, sending by fax.

What is the proper address?
r 6.07(2): The proper address of a person shall be the address for service of that person in the proceeding,
BUT if at the time service is to be effected that person has no address for service, proper address shall be
(a) Individual: persons usual or last-known place of residence or business;
(b) Individuals suing/ being sued in firm name: the principal or last known place of business; or
(c) Corporation: registered or principal office.


16
Evidence of a statement of a person of that persons identity or that the person holds some office is evidence
of that persons identity or that the person holds that office (r 6.08).

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Time limits

Be careful!
r 6.07(4): Service in accordance with (1)(a) or (1)(e) effected after 4pm shall be taken to have been effected
on the next day the Prothonotarys office is open;
If you serve on a Saturday/Sunday, its taken as served on Monday (r 6.07(1)(a) says on any day on which
the Prothonotarys office is open). Service in accordance with (1)(b) is taken to be the day it would be
delivered in the normal course of post (r 6.07(5)(a)), and if (1)(d), taken to be the day following the day
upon which it is so delivered (or where delivered on a Friday, be taken to be following Monday; (b)) or on
such other day as may be proved.

Substituted service

r 6.10(1): Where for any reason it is impracticable to serve a document in the manner required by these
Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose
of bringing the document to the notice of the person to be served;
Eg leave at last known address, leave with someone you think is in contact, advertise in local newspaper,
email, sms or post on facebook.com page;
Considered to be personal service.

Very difficult to get substituted service, as it deviates from usual rule that D must be notified.
Requirements:
1. There exists a practical impossibility of actual service (P must show extensive efforts were made to effect
personal service); and
2. The method of substituted service asked for is one which will in all reasonable probability, if not
certainty, be effective to bring knowledge of the writ to D.

Service outside the jurisdiction (service ex juris)

Outside Vic but within Aus

Service and Execution of Process Act 1992 (Cth) [SEPA] (p 319).

s 8(4): SEPA is exclusive wrt service within Aus;
s 13: Applies to civil proceedings in a court (and court is defined as a court of a State, s 3(1) => applies to
ALL courts);

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s 15(1): Originating process (called initiating process in SEPA) issued in a state/territory can be served in
another state/territory without Courts leave. s 3(1) Initiating process means a process (a) by which a
proceeding is commenced, or (b) by reference to which a person becomes a party to a proceeding (eg writs,
third party notice, counterclaims where adding new party);
s 15(2): Service on an individual must be effected in same way as service in State where proceedings issued;
s 15(3): Service on a company or registered body must be effected in accordance with s 9. And s 9(1) says
service is to be effected by leaving it at, or by sending it by post to, the companys registered office. OR s
9(2) says it may also be served by delivering a copy of it personally to a director of the company who
resides in Australia;
s 12: Service (a) has the same effect, and (b) may give rise to the same proceedings, as if had been served in
place of issue;
s 16: Service is effective only if copies of such notices as are prescribed are attached to the process, or the
copy of the process, served. => Have to attach an information notice to the process, form in Regulations.
Notice tells interstate D additional info that a Vic person would not worry about, such as how to challenge
the jurisdiction and why Vic has jurisdiction.

No need for a nexus between Vic and D at all.

Outside Aus

O 7 rules, or international conventions.

O 7 ONLY applies to SC;
Need nexus;
r 7.01(1): Originating process may be served out of Australia without order of the Court where
(a) whole subject matter of the proceeding is land situate within Vic;
(c) any relief is sought against a person domiciled or ordinarily resident within Vic;
(f) proceeding brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a contract,
or recover damages or other relief in respect of the breach of a contract, and the contract
(i) was made within Vic;
(ii) was made by or through an agent carrying on business or residing within Vic on
behalf of a principal carrying on business or residing out of Vic; or
(iii) is governed by the law of Vic.
(g) proceeding brought in respect of a breach committed within Vic of a contract wherever made;
(i) proceeding founded on a tort committed within Victoria;
(j) proceeding is brought in respect of damage suffered wholly or partly in Vic and caused by a
tortuous act or omission wherever occurring;
(l) proceeding is properly brought against a person duly served within or out of Victoria and
another person out of Australia is a necessary or proper party to the proceeding.

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FALLBACK r 7.06: Court, by order, may allow service out of Aus of the following: (a) originating process
in a proceeding in relation to (i) wardship, custody, management or welfare of a minor, or (ii) custody,
management or welfare of a person who is incapable of managing his or her affairs; (b) an originating
motion in a proceeding brought under any Act; (c) any summons, order or notice in any proceeding.

What do you serve overseas D?
r 7.02(1): Indorse on the writ which of these nexus requirements you think is met, and what facts show that
it is met;
Make sure you do this, otherwise per r 7.05(2)(a), on application by party served, the Court may make an
order staying the proceeding or setting aside service on the ground that service out of Australia was not
authorised by these Rules.

How do you serve?
Can personally serve, or employ process server in the country (to serve in accordance with their Rules).

Counterclaim or third party notice:
r 7.07: (2) Can serve out of Aus without leave where, if claim were made by writ, it would satisfy r 7.01, or
(3) If not, the Court may, by order, allow service out of Aus.

OR

Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial
Matters 1965
Fed Govt announced July 2009 that Aus will be acceding to this;
Steps: lodge with Prothonotary, doc to be served, translation if the language of the other country is not
English, and request for service in accordance with a Convention, referring to the relevant Convention;
Can be very expensive up to P to pay.

Time limits for service

Between filing and service, have 12 months (r 5.12(1));
Otherwise, writ becomes stale;
If you dont serve within this time, could issue writ again OR apply to court to get an extension of time (r
5.12(2) Court may extend period of validity for such period as the Court directs, being not more than one
year from that day; order can be made before or after expiry, (3)).

r 3.01 specifies how time is calculated, and see p 53: (2) beginning day is excluded, (3) ending day is
included [ie hand writ on Monday, 7 days, exclude Monday, so must hand in by following Tuesday], (5)

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where the last day for doing any act at the office of the Court is a day on which the office is closed, the act
may be done on the next day the office is open.



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TOPIC 8: Appearance

General

Ds response to service:
1. Do nothing;
2. Enter unconditional appearance; or
3. Enter conditional appearance.

Appearance

An Appearance is filed and served for three reasons:
- D must enter an appearance before taking any further step in the proceeding (except as provided by
Rule 8.08 or 8.09 or by leave of the Court, r 8.02);
- Failure to enter an appearance will enable P to obtain judgment in default of appearance; and
- To inform P the action is to be defended, the name of Ds solicitors, and an address where service can
be effected.

Time limits

r 8.04: Unless the Court otherwise orders, the time stated in the writ or originating motion for D to file an
appearance shall be
(a) where originating process is to be served in Vic = 10 days;
(b) where originating process is to be served out of Vic and in another part of Aus = 21 days (note: if D
was served under SEPA, under s 17 the D has the longest of 21 days or the period allowed under State
rules no difference in Vic);
(c) where originating process is to be served in NZ or in Papua New Guinea = 28 days;
(d) in any other case = 42 days.

See WRIT: THE PROPER TIME TO FILE AN APPEARANCE is as follows

D may file an appearance late, but after judgment it shall not be filed without the leave of the Court (r
8.07(1)). But the time available to deliver a defence or for other purposes is calculated from the last day for
appearance specified in the writ or originating motion (r 8.07(2)).


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Procedure

Who can file appearance?
o Solicitor or in person (except as provided in Rule 15.02, r 8.03(1));
o A corporation may file an appearance by any person duly authorised by it to so act (r 8.03(2));
o When a partnership is sued in the firm name, a partner must appear individually in his or her own
name (rr 17.04-17.06);
o For person under disability, appearance is done by their litigation guardian (r 15.02(2));
o Third parties (r 11.08), persons added or substituted as defendants (r 9.11), and non-parties served
with defence and counterclaim (r 10.04(4)), must also enter an appearance.

How do you file appearance?
o Use appropriate form (r 8.05(1) Form 8A for unconditional appearance, or r 8.08(2) Form 8B for
conditional appearance);
o State name and address
17
of the defendant (r 8.06). If D appears by a solicitor, include the name of
solicitor or firm and business address within Vic of solicitor;
o File notice of appearance with Prothonotary, wholl seal a number of copies for service (r 8.05(2));
o Ordinary service of the appearance, on the day of filing (r 8.05(3) if D fails to comply, the Court
may order D to pay any costs of P occasioned by the failure, (4)).

If D wants to object

What can D object to?
- Jurisdiction (Topic 3, p 16);
- Irregularities in the writ (Topic 4, p 23); and
- Service irregularities (Topic 7, p 49).

To object, see 1. No appearance and 3. Conditional appearance.

1. No appearance

D is exposed to default judgment;
That is, P can ask for default judgment (see Topic 12);
Where D is out of Australia, use r 7.04(1): If originating process served out of Australia and no appearance
is filed by D, the Court may order that P shall be at liberty to proceed if satisfied (a) that the subject matter

17
Must be an address within Victoria [r 8.06(1)], or if SEPA applies, an interstate address [r 8.06(3) and s 18(1)
of SEPA].

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of the proceeding so far as it concerns D is within r 7.01, and (b) that the originating process was duly
served on D (show Affidavit of Service, (2)).

If D objects:
r 8.09: The Court may exercise its jurisdiction to
(a) set aside a writ or originating motion or its service;
(b) make an order under Rule 46.08 (ie setting aside/varying an order which affects a person where the
person did not receive notice of the order or did not attend the hearing of the application for the order,
eg judgment in default);
(c) stay a proceeding
on application made by the D before filing an appearance, whether conditional or not.

If service interstate:
Normally use r 8.09(c) and Spiliada (see p 17) note court would prefer to transfer, rather than stay.
18

BUT, if D is seeking a stay and court is a court other than SC, use s 20 SEPA.
(3) Court may order that the proceeding be stayed if it is satisfied that a court of another State is the
appropriate court to determine those matters;
(4) Considerations:
(a) Places of residence of the parties and witnesses;
(b) Place where subject matter of proceeding is situated;
(c) Financial circumstances of the parties;
(d) Any agreement between the parties re court;
(e) Law that would be most appropriate to apply; and
(f) Whether a related or similar proceeding has been commenced against the person served or
another person.

If service out of Australia:
r 7.05(1): The Court may make an order of a kind referred to in Rule 8.09 on application by a party served
with originating process out of Australia.
(2) The Court may make an order under this Rule on the ground (a) that service out of Aus is not
authorised by these Rules; or (b) that Victoria is not a convenient forum for the trial of the proceeding.
(3) The Court may make an order (a) before an application is made under r 7.04, or (b) before an order of
the Court is made on such an application.

2. Unconditional appearance

Entry of an unconditional appearance waives:
o Objections to the courts jurisdiction;

18
To transfer, file conditional appearance and make application under cross-vesting legislation (Topic 3).

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o Irregularities in the originating process known to the D or obvious on the face of the process;
o Irregularities as to commencement of proceeding; and
o Irregularities in service (eg it makes good the service of an expired/stale writ; in Sheldon, UK Court
of Appeal said service of a stale writ is an irregularity, not a nullity).
An unconditional appearance means D is submitting to the jurisdiction of the court.

3. Conditional appearance

r 8.08(1): D may file a conditional appearance;
Method of preserving right to object to procedural irregularities or jurisdiction, but prevents default
judgment (so file conditional appearance, and then object as per above);
D must make an application by summons within 14 days after the day the conditional appearance is filed,
otherwise the conditional appearance shall have effect for all purposes as an unconditional appearance (rr
8.08(3) and (4)).



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TOPIC 9: Pleadings

Purpose of Pleadings

What are pleadings?
Formal written documents exchanged between parties in a proceeding.
Set out the material facts that the parties intend to allege at the hearing.
Not a writ, affidavit, subpoena.

No pleadings if originating motion.

Purpose of pleadings:
o Include:
! Informs court of matters on which decision sought;
! Defines issues so parties know what theyre fighting about;
! Parties know facts to be proved at trial; and
! Avoids parties being taken by surprise or incurring unnecessary costs.
o IE improves efficiency and fairness;
o Problem is that pleadings are exchanged before evidence gathering. Temptation in pleadings to be as
vague as possible, so you dont limit what you can argue at trial.
Per Bongiorno J in Gunns, Not only must the pleading inform the defendants of the case they must
meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their
claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties.
Vague allegations on very significant matters may conceal claims which are merely speculative. If
this be not the case, the plaintiffs must put their allegations clearly. (Para 57 7/05 Judgment)

Procedure

P/D must serve pleading within 30 days of previous pleading, unless the Court otherwise orders;
Serve using ordinary service;
Every time you serve party with pleading, have to file a copy with the Court forthwith (r 14.10).

Order:
Writ # Appearance #
1. Statement of Claim (not required if writ had special indorsement, r 14.01; if general indorsement, P
shall serve SOC on that D within 30 days after Ds appearance, r 14.02);

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2. Defence (r 14.04: a D who files an appearance shall serve a defence as follows (a) where special
indorsement, within 30 days after filing appearance; (b) where general indorsement, within 30 days
after service of the SOC).
OR
Defence and Counterclaim.
3. [Reply] (r 14.05: where P is required to serve a reply, it shall be served within 30 days after service of
the defence optional, dont put in reply unless some new fact comes up in the defence).
OR
[Reply and] Defence to Counterclaim (r 14.07: where D sets up a counterclaim in the defence, P or
any person joined as D to the counterclaim who is already a party to the proceeding
19
shall serve a
reply and defence to counterclaim, or a defence to counterclaim, within 30 days after service of the
defence and counterclaim).
4. [Subsequent pleadings: Rejoinder, Surrejoinder, Rebutter, Surrebutter]
No pleading after reply shall be served without an order of the Court (r 14.06).

r 14.08: Pleadings shall be closed (a) where no pleading beyond a defence is ordered or served, at the
expiration of 30 days after service of the defence; or (b) where pleadings beyond a defence are ordered or
served, at the expiration of 30 days after service of the last of those pleadings.
This triggers next step in litigation.

Content of Pleadings

Formal requirements

r 13.01: Every pleading shall:
- Bear on its face the description of the pleading, and the date on which it is served: (1)(a), (b);
- Be divided into paragraphs numbered consecutively, and each allegation be contained in a separate
paragraph: (2); and
- Be signed by solicitor, or if none, the party: (3).

Set out paragraphs in a logical order (often chronological, but not always);
State each point precisely and briefly;
If particulars are required, follow on from the substantive paragraph and indent.



19
If counterclaim brings in new parties, use O 10. See p 37 rr 10.04(4)(a) and (c) says Order 14 shall apply as
if the counterclaim were a writ the indorsement of claim on which constituted a statement of claim, and the
person joined were a defendant in the proceeding.

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Content

r 13.02(1): Every pleading shall:
(a) contain in a summary form a statement of all the material facts on which the party relies, but not the
evidence by which those facts are to be proved;
(b) where any claim, defence or answer of the party arises by or under any Act, identify the specific
provision relied on;
(c) state specifically any relief or remedy claimed.

Material facts:
o In order to plead the material facts, a party must plead all the facts which are necessary to constitute
a complete cause of action or defence, so that if the facts pleaded are proved or admitted, the party
pleading them will be entitled to the relief sought in the pleading;
o Material facts must be set out with sufficient particularity. The pleading must convey a clear
conception of the case being made. If not, it may be struck out as embarrassing (Bongiorno J in
Gunns);
o Can plead subsequent facts ie material facts that happened after proceedings commenced (r 13.08).

What should not be pleaded?
o Evidence (eg in Blake v Albion, the phrase This was a regular pattern of behaviour by D in the
SOC was struck out as evidence, and not a material fact that makes out misrepresentation).
Sometimes a doc or conversation can be material (cf merely evidence), if so, plead the effect/ a
summary of the words not the words themselves (unless the form of words is essential, r 13.03); or
o Legal consequences of pleaded facts it is for the court to declare the law arising upon the facts
proved before it (note: pleader may do this if appropriate, per r 13.02(2)(b)).

Inconsistent allegations
o Inconsistent allegations of fact can be pleaded in a SoC, as long as they are pleaded in the alternative
(r 13.09(1));
o Ie start new para for new cause of action/ fact and commence para with Further and alternatively
o BUT subsequent pleadings cannot be inconsistent with previous pleadings (r 13.09(2), unless
previous pleadings amended, r 13.09(3)).

Particulars

r 13.10(1): Every pleading shall contain the necessary particulars of any fact or matter pleaded;
(2): Particulars shall be given if they are necessary to
(a) enable the opposite party to plead;
(b) define the questions for trial; or

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(c) avoid surprise at trial.

What are particulars? Details of the material facts alleged elaborate more precisely on what is alleged.
Party is bound by their particulars at trial. If any inconsistency between material fact and particular, the
material fact wins. Cannot be relied on to cure defects in material facts;
Format:
2. Material fact
PARTICULARS OF
Elaborate on material fact, indented, separate paragraph.

Special cases

Must include particulars of:
- Alleged misrepresentation, fraud, breach of trust, wilful default or undue influence (r 13.10(3)(a));
- Alleged disorder or disability of the mind, malice, fraudulent intention or other condition of the mind,
including knowledge or notice (r 13.10(3)(b));
- For personal injury (r 13.10(4)): (a) particulars, with dates and amounts, of all earnings lost in
consequence of the injury complained of, (b) particulars of any loss of earning capacity resulting from
the injury, (c) date of the partys birth, and (d) name and address of each of the partys employers from
12 months before the injury, the time of commencement and duration of each employment, and the
total net amount after tax that was earned in each employment;
- For libel (r 13.10(5)): identify publication.

Examples

Breach of contract:
o Where contract is alleged particulars may be given stating the date that the contract was made &
saying whether it is in writing, oral or to be implied or a combination of the three;
o Where conversation is relied on as constituting a term of a contract, details should be given. Identify
the participants & set out the substance of the conversation, the place where conversation occurred &
the date;
o Particulars of breach may be required (depending on the circumstances); and
o You should always try to provide particulars of loss & damage.
Negligence:
o If personal injury, see r 13.10(4);
o The facts upon which the duty is founded;
o The acts or omissions which constitute the breach of duty; and
o The loss and damage suffered.


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1. Statement of Claim (also applies to Third Party Notice)

Drafting

ASK:
i. Who are the parties?
ii. What relief or remedies are sought?
iii. What causes of action are applicable? Elements?
iv. What is the appropriate court in which proceedings should be commenced?

STEPS:
1. See WRIT, p 24, include heading (STATEMENT OF CLAIM) and info in tramlines;
2. See Formal Requirements (p 63);
3. Three parts:
a. Introductory allegations;
Any necessary facts relating to the parties and their relationship to each other or to the subject
matter of the dispute.
Order:
i. If any party is not a natural person, need to establish capacity.
Eg: The plaintiff is and was at all material times a company incorporated pursuant to
the provisions of the Corporations Act 2001 (Cth).
ii. If suing through a litigation guardian, must be pleaded (see p 21).
iii. May need to establish connection of a party to the subject matter if not obvious.
Eg: The defendant is and was at all material times the registered proprietor of the
whole of the land described in Certificate of Title Volume 1234 Folio 456 and located
at 1 Monash Street Clayton in the State of Victoria.
iv. May need to establish connection of parties to each other if relevant to the claim and
not obvious;
Eg: The second defendant is and since 1 February 2007 has been a director of the first
defendant.
v. If a representative proceeding, spell out the class (p 43).

b. Substantive allegations; and
Every fact which the plaintiff must establish in order to justify the grant of relief or remedy
sought.
See Content, p 64;
Plead allegations of fact which establish the elements of the cause of action;
Must plead all relevant facts (otherwise SOC may be struck out, r 23.02, or fail in proceeding,
as evidence to prove a fact not pleaded will normally not be admitted if other party objects);

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Elements:
o Breach of contract: P must establish that there was an agreement, that there were
particular terms of the agreement which were breached by the defendant and usually,
that the breach caused loss or damage. Could also sue for breach of Trade Practices Act
1974 (Cth) [if suing company], or Fair Trading Act 1999 (Vic) [if suing human]
indep obligations or implied terms (joining claims);
o Negligence: P must establish that the defendant owed a duty of care, that the defendant
breached that duty, and that the breach caused loss or damage;
o Negligent misrepresentation: a representation, duty of care wrt the statements accuracy
and reliability, breach statement false, and reliance loss and damage;
o Fraudulent misrepresentation: representation made without an honest belief in its truth
or reckless disregard of truth, reliance loss and damage;
o Battery: act of direct physical contact;
o False imprisonment: direct act of total confinement of the plaintiff with no reasonable
means of escape.

c. Prayer for relief.
The statement of claim ends with the identification of the relief/remedies which the plaintiff
seeks from the Court. Court has power to grant relief other than that claimed.
Format:
AND THE PLAINTIFF CLAIMS
20

A. Damages
B. Interest
21

C. Costs.

4. Include Particulars (see p 64).


Example 1: Contract

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE No of 20XX

BETWEEN:

Hamish Ewell Plaintiff


20
Note: Dont number this paragraph.
21
Ie interest on money P paid out (eg $5,000 on medical costs).

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AND

Cellardoors Pty Ltd (A.C.N 123 456 789) Defendant

STATEMENT OF CLAIM
___________________________________________________________________________
Date of document: [date]
Filed on behalf of: The Plaintiff
Prepared by: Solicitors Code: [code]
[name and address of plaintiff's solicitor] DX: [number]
Tel: [number]
Ref: [number] and email
___________________________________________________________________________

1. The Defendant is and was at all material times a company duly incorporated pursuant to the provisions
of the Corporations Act 2001 (Cth) and capable of being sued in its corporate name.

2. By an agreement made on or about 25 February 20XX between the Plaintiff and the Defendant the
Defendant agreed to install an automatic cellar door to the Plaintiffs wine cellar (the agreement) for
the sum of $29,000.

PARTICULARS

The agreement was partly written, partly oral and partly implied. To the extent that it was
written, it was contained in the Defendants brochure setting out the Defendants standard
terms and conditions. To the extent that it was oral it consisted of a conversation between the
Plaintiff and Peter Cellars on behalf of the Defendant on or about 25 February 200X and was
to the effect that the Defendant would install an automatic cellar door to the Plaintiffs cellar.
To the extent that it was implied, the implication arises from the nature of the agreement.

3. There were terms of the agreement that
(a) the door would close.
(b) the latch release would work.

PARTICULARS

The terms are implied from the nature of the agreement.

.. 2 ..


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4. In performance of the agreement, the Defendant installed the cellar door on 11 March 20XX.

5. In breach of the implied terms referred to in paragraph 3 the doors latch release would not work, and
the door would not shut.

6. As a result of the Defendant's breach of the agreement the Plaintiff has suffered loss and damage.

PARTICULARS

8 bottles of Grange Hermitage wines ruined by heat $2,500/bottle
Total $20,000

AND THE PLAINTIFF CLAIMS:
A. Damages.
B. An order that the Defendant remove the door at its own expense.
C. Interest pursuant to the Supreme Court Act 1986.
D. Costs.


DATED: [date]

...
MONASH OAKLEIGH LEGAL SERVICE
Solicitors for the Plaintiff


Example 2: Contract and TPA/FTA

--- Heading and tramlines as above ---

1. Same as 1 above.

2. The Defendant was at all relevant times:
(a) a corporation engaged in trade or commerce within the meaning of the Trade Practices Act 1974
(Cth); or
(b) engaged in trade or commerce within the meaning of the Fair Trading Act 1999 (Vic).
[Setting up jurisdiction for TPA/FTA]

3. Same as 2 above.


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4. Shortly before making the agreement the Defendant represented to the Plaintiff that the door latch
worked and that the door would close and seal properly. [Allegation for m&d conduct]

PARTICULARS

Mr Cellars on behalf of the Defendant faxed to the Plaintiff on 11 March a brochure which
contained the companys standard terms and conditions. The brochure stated Seals fast
opens easy secures your wine - every time.
[A required particular, see r 13.10(3)(a)]

5. There were implied terms of the agreement that:
(a) See 3 above.
(b) See 3.
(c) the door would be of merchantable quality.
(d) the door would be fit for the purpose for which it was intended, namely for the safe storage of
wine.

PARTICULARS

Terms (a) and (b) are implied from the nature of the agreement.
Term (c) is implied by section 71(1) of the Trade Practices Act and/or section 32I of the Fair
Trading Act.
Term (d) is implied by 71(2) of the Trade Practices Act and/or section 32IA of the Fair
Trading Act.

6. Same as 4 above.

7. In breach of the implied terms referred to in paragraph 5 and further or alternatively contrary to the
representations referred to in paragraph 4, the doors latch release would not work, and the door would
not shut.

8. In making the representations referred to in paragraph 4, the Defendant:
(a) made the representations in trade or commerce;
(b) engaged in conduct that was misleading or deceptive or likely to mislead or deceive;
(c) engaged in conduct in breach of s 52 of the Trade Practices Act;
(d) engaged in conduct in breach of s 9 of the Fair Trading Act.
[Have to put relevant sections in, r 13.02(1)(b)]

9. Same as 6 above.


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AND THE PLAINTIFF CLAIMS:
A. Damages pursuant to paragraph 9.
B. An order that the Defendant remove the door at its own expense, alternatively damages for the cost of
removal.
C. Interest pursuant to the Supreme Court Act 1986.
D. Costs.


Example 3: Negligence

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE No of 20XX

BETWEEN:

GLORIA PRINGLE Plaintiff

AND

DAVID PANACHE Defendant

STATEMENT OF CLAIM
__________________________________________________________________________________________
Date of document: 7 April 2010
Filed on behalf of: The Plaintiff

Prepared by: Solicitors Code: 1234
Monash Oakleigh Legal Service DX 27 Melbourne
60 Beddoe Ave, Clayton Tel: 03 9905 4336
Victoria, 3168 Ref: name and email
__________________________________________________________________________________________

1. On or about 1 April 2010, a car driven by the Defendant collided with a car owned by the Plaintiff.
[Standing to sue, also establishes duty of care]

PARTICULARS

The collision occurred on 1 April 2008 between a 2010 Model Rolls Royce Phantom
registration number UNPOOR owned by the Plaintiff driven by the Plaintiffs chauffeur
Anthony Jeeves and a blue 2007 model Mazda 6 registration UNP-123, driven by the

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Defendant. It occurred at the intersection of Warragul and Waverley Roads, Chadstone in the
State of Victoria at or about 2:55pm. The Defendant was driving East along Waverley Rd,
then attempted to turn right into Warragul Rd, and did so into the Plaintiffs on-coming car,
thereby causing the collision.

2. The collision was caused by the negligence of the Defendant in the driving management and control of
the car driven by him.
[Breach of DOC]

PARTICULARS OF NEGLIGENCE

(a) Failing to keep any or any proper look out
(b) Driving at a speed excessive in the circumstances
(c) Failing to give any or any adequate warning of the approach of his car
(d) Driving or attempting to drive across the path of the plaintiffs car when there was neither
time nor space to do so
(e) Failing to keep his car under any or any proper control
(f) Failing to apply the brakes in his car in time to avoid the collision or at all
(g) Failing to steer or control his car so as to avoid the collision
(h) Failing to give way to the plaintiffs car
(i) Failing to comply with the provisions of the Road Safety Act 1986 and regulations made
under it.

3. As a result of the defendant's negligence the plaintiff has suffered loss and damage.
[Breach caused harm]

PARTICULARS

The repair costs of her car $198,001.86
Replacement cost of laptop $ 2,500.00
Hire Car for period 2 April to 10 April $ 998.32
TOTAL $201,500.00

AND THE PLAINTIFF CLAIMS:
A. Damages.
B. Interest pursuant to the Supreme Court Act 1986.
C. Costs.

DATED: [date]


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...
MONASH OAKLEIGH LEGAL SERVICE
Solicitors for the Plaintiff


Example 4: Negligence and Contract

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE No of 20XX

BETWEEN:

LATKE CASEY Plaintiff

AND

DAVID PETRAEUS First Defendant [Doctor]

AND

LILLIPUT MEDICAL CENTRE Second Defendant [Employer]

STATEMENT OF CLAIM
__________________________________________________________________________________________
Date of document: 7 April 2010
Filed on behalf of: The Plaintiff

Prepared by: Solicitors Code: 1234
Monash Oakleigh Legal Service DX 27 Melbourne
60 Beddoe Ave, Clayton Tel: 03 9905 4336
Victoria, 3168 Ref: name and email
__________________________________________________________________________________________

1. The First Defendant is and was at all relevant times:
(a) a qualified medical practitioner;
(b) the servant or agent of the Second Defendant.

2. The Second Defendant is and at all relevant times was
(a) a company duly incorporated under the provisions of the Corporations Act 2001 (Cth) and capable
of being sued in its corporate name;

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(b) providing, managing and maintaining a hospital known as the Lilliput Medical Centre for the
purpose of treating patients.

3. At all relevant times, the Second Defendant engaged the First Defendant to carry out medical services
on its behalf.
[Vicarious liability have to show that employee committed tort in course of their employment]

4. On or about 1 January 2010 the Plaintiff was admitted as a patient to the Second Defendants hospital
for care and treatment of a fractured femur.

PARTICULARS

[Insert particulars of admission, eg when, where etc]

5. The care and treatment was performed and/or supervised by the Second Defendant or by its servants or
agents including the First Defendant.
[DOC]

6. The First and Second Defendants failed to give the Plaintiff proper care and treatment which resulted in
injury to the Plaintiff.
[Breach caused harm]

PARTICULARS OF INJURY

Pain to the left thigh, stress and nervous shock.

PARTICULARS UNDER RULE 13.10(4)

[Give particulars of date of birth, lost earnings, employers in past 12 mths etc]

7. The injury was caused by the negligence of the First and Second Defendants, their servants or agents.
[Breach of DOC]

PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT

(a) Failing to examine or adequately examine the Plaintiffs injury so as to properly
diagnose his condition
(b) Failing to provide the Plaintiff with any form of sedation or local anaesthetic
(c) Failing to observe the damage to the femoral artery
(d) Failure to repair or ligate the femoral artery

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If necessary the Plaintiff will rely on the doctrine of res ipsa loquitor

PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT

(a) Failing to examine or adequately examine the Plaintiffs injury so as to properly
diagnose his condition
(b) Failing to provide the Plaintiff with any form of sedation or local anaesthetic
(c) Failing to observe the damage to the femoral artery
(d) Failure to repair or ligate the femoral artery
(e) Failure to engage competent medical staff
(f) Failing to supervise adequately or at all the medical staff treating the Plaintiff
(g) Failing to supervise adequately or at all the Plaintiff while he was in the care of the
Second Defendants hospital
If necessary the Plaintiff will rely on the doctrine of res ipsa loquitor

8. Further or in the alternative, on or about 1 January 2010 , the Plaintiff and the Second Defendant
agreed that the Second Defendant would medically treat and care for the Plaintiff in its hospital for the
Plaintiffs fractured femur.
[Contract cause of action]

PARTICULARS OF AGREEMENT

[Insert particulars of contract. Refer to previous illustrations]

9. It was an implied term of the agreement that the Second Defendant, its servants and agents would
exercise reasonable skill, care and diligence in the carrying out of all duties connected with the
Plaintiffs care and medical treatment by the Second Defendant.

PARTICULARS

The term is implied by reason of the nature of the agreement.

10. In breach of the implied term the Second Defendant, its servants and agents failed to exercise
reasonable care, skill and diligence in the carrying out of their respective duties connected with the
Plaintiffs medical treatment.

PARTICULARS

The Plaintiff refers to and repeats the particulars to paragraph 7.


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11. By reason of the breach, the Plaintiff has suffered loss and damage.

PARTICULARS

The Plaintiff refers to and repeats the particulars to paragraph 6.


AND THE PLAINTIFF CLAIMS:
A. Damages.
B. Interest pursuant to the Supreme Court Act 1986.
C. Costs.


DATED: [date]

...
MONASH OAKLEIGH LEGAL SERVICE
Solicitors for the Plaintiff






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2. Defence

r 13.07(1): A party shall in any pleading subsequent to a statement of claim plead specifically any fact or
matter which
(a) the party alleges makes any claim or defence of the opposite party not maintainable;
(b) if not pleaded specifically, might take the opposite party by surprise; or
(c) raises questions of fact not arising out of the preceding pleading.

r 13.12(1): Failure to respond to a material fact pleaded by other party is generally taken to be an admission,
except for:
- Non-response to particulars;
- Allegations that party has suffered damage and allegations as to the amount of damages (taken to be
denied unless specifically admitted, r 13.12(4));
- A person under a disability is not taken to admit the truth of an allegation unless the allegation is
expressly admitted (r 15.06); and
- Where there is denial by joinder of issue under r 13.13 (see below).
A general denial of allegations, or general statement that they are not admitted, is not sufficient (r 13.12(1)).

r 13.12(3): Where the party pleading intends to prove facts which are different to those pleaded by the
opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but
the party shall plead the facts the party intends to prove.

Drafting

Format same as SOC above (except title = DEFENCE or DEFENCE AND COUNTERCLAIM);
Steps:
i. Defence usually begins with the words:
To the Statement of Claim dated 1 January 2007, the Defendant says as follows

ii. NEXT, specifically respond to each allegation made by the P in the SOC.
o If D doesnt respond to a material fact, its considered an admission (r 13.12(1));
o Dont respond to particulars;
o When responding, 4 different approaches:
a. Admission;
- Admit the allegation;
- If you do admit, its taken as proved and not argued at trial;
- Admit facts not in controversy and which it is neither in your interest or power to
deny (save in costs);

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- Be specific.
Eg: 4. A contract was formed containing X term. If you only admit the formation
of the contract, say 4. D admits the formation of the contract but otherwise denies/
does not admit each and every allegation made in paragraph 4, or 4. Save that it
admits the formation of the contract, it denies each and every allegation made in
paragraph 4, or 4. As to paragraph 4 thereof: a) The defendant admits the formation
of the contract; and b) It otherwise denies each and every allegation made in
paragraph 4.

b. Denial;
- If there is a fact alleged which you wish to put in issue in the defence you can either
deny it or not admit it (I deny or I do not admit );
- P will have to prove the allegation by evidence adduced at trial;
- Deny facts you actually know are wrong;
- Do not admit facts that youre uncertain of;
- Dont make a negative pregnant (a negative statement containing a positive statement
eg I deny I owe P $100, better to say, I deny I owe P any money).

c. Qualified pleadings; or
- Confession + avoidance;
- Admit what P alleges, but go on to allege something else that justifies it or excuses D
from liability;
- Eg: The defendant admits paragraph 4 and says further that or As to paragraph
4 thereof: a) The defendant admits; and b) The defendant says further that; and
c) The defendant otherwise denies each and every allegation made in paragraph 4.

d. State an objection of law.

iii. THEN, plead Ds case.
o Allege further material facts to establish a defence (see p 64, and r 13.07(1) above), or dispute
the plaintiffs version (see r 13.12(3)).

Set-off or Counterclaim

Set-off

Include in the Defence as an additional paragraph (no need for sub-heading);
Statutory defence to a Ps action;
Better than counterclaim if P is insolvent (although could use r 10.09);

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r 13.14: Where D has a claim against P for the recovery of a debt or damages, the claim may be relied on as
a defence to the whole or part of a claim made by P for the recovery of a debt or damages, and may be
included in the defence and set off against Ps claim, whether or not D also counterclaims for that debt or
damages;
Because it is a defence: if P isnt successful or discontinues the action, there is no judgment for D; also, if P
is successful, but the set-off # Ps claim, while D doesnt have to pay any money to P, he cant recover the
balance.

Counterclaim

Serve Defence and Counterclaim (r 10.02(3));
A counterclaim is an independent cause of action essentially, a joint trial of 2 claims (r 10.05);
Costs dealt with separately;
Advantages: continues even if P discontinues their action (r 10.08(b)); also, if P succeeds on claim and D
succeeds on counterclaim, and counterclaim > Ps claim, the Court may give judgment for the balance (r
10.09, operates like a set-off, except D gets balance); and counterclaim lets you use SC for an action you
might not otherwise be able to use it for (if initial proceeding in SC).

Have separate section for counterclaim (sub-heading COUNTERCLAIM);
In pleading counterclaim, follow the same pleading requirements as for a Statement of Claim (r 13.15(a)
says O 13 applies to a counterclaim as if it were a SOC). It must reveal a cause of action by pleading of
necessary material facts however, can reference allegations in the DEFENCE section (eg 10. The
defendant repeats and relies on the matters set out in paragraphs of the Defence, or 10. The Defendant
refers to and repeats the allegations in paragraphs of the Defence);
See p 36 for joining parties.

Example

Defence and Counterclaim: Negligence

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE No of 20XX

BETWEEN:

GLORIA PRINGLE Plaintiff

AND

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DAVID PANACHE Defendant

AND BETWEEN

DAVID PANACHE Plaintiff by Counterclaim

AND

GLORIA PRINGLE First Defendant by Counterclaim

AND

ANTHONY JEEVES Second Defendant by Counterclaim

DEFENCE AND COUNTERCLAIM
__________________________________________________________________________________________
Date of document: 29 April 2010
Filed on behalf of: The Defendant and Plaintiff by Counterclaim

Prepared by: Solicitors Code: 4321
Springvale Monash Legal Service DX 1 Melbourne
60 Railway Tce, Springvale Tel: 03 1234 5678
Victoria, 3168 Ref: name and email
__________________________________________________________________________________________

.. 2 ..
DEFENCE
As to the Plaintiffs Statement of Claim dated 7 April 2010, the Defendant says as follows:

1. As to paragraph 1, he:
(a) admits that on or about 1 April 2010, a car driven by him collided with a car (the other car)
being driven by the Second Defendant by Counterclaim;
(b) does not admit that the Plaintiff is or was the owner of the other car;
(c) otherwise denies paragraph 1.

PARTICULARS

The collision occurred on 1 April 2010 between the other car, being a 2008 Model Rolls
Royce Phantom registration number UNPOOR driven by the Second Defendant by

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Counterclaim and a blue 2007 model Mazda 6 registration UNP-123 owned and driven by the
Defendant. It occurred at the intersection of Warragul and Waverley Roads, Chadstone in the
State of Victoria at or about 2:55pm. The Defendant was driving West along Waverley Rd,
then attempted to turn right into Warragul Rd. As he did so, the Second Defendant by
Counterclaim drove through a red light and collided with the left hand side of his car, thereby
causing the collision.

2. At all relevant times, the Second Defendant by Counterclaim was:
(a) the servant or agent of the Plaintiff;
(b) acting within the scope of his employment.
[Vicarious liability]

PARTICULARS

The Second Defendant by Counterclaim was at all relevant times employed by the Plaintiff as
her driver

3. The collision was caused by the negligence of the First Defendant by Counterclaim and Second
Defendant by Counterclaim.

PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT

(a) Failing to keep any or any proper look out
(b) Driving at a speed excessive in the circumstances
(c) Failing to give any or any adequate warning of the approach of the car
(d) Driving or attempting to drive across the path of the defendants car when there was
neither time nor space to do so
(e) Failing to keep the car under any or any proper control
(f) Failing to apply the brakes in the car in time to avoid the collision or at all
(g) Failing to steer or control the car so as to avoid the collision
(h) Failing to give way to the defendants car
(i) Failing to stop at a red light
(j) Failing to comply with the provisions of the Road Safety Act 1986 and regulations made
under it.
(k) Failing to supervise adequately or at all her servants or agents
(l) Failing to engage a driver who was adequately competent or experienced
(m) Failing to provide her driver with any or any adequate training

PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT


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The Defendant refers to and repeats particulars (a) to (j) above as if they were set out here in
full.

4. The Defendant will seek to set off against the Plaintiffs claim so much of the sums claimed in
Defendants Counterclaim as is sufficient to extinguish the Plaintiffs claim or part of it.
[Set-off]

COUNTERCLAIM

5. The Plaintiff by Counterclaim refers to and repeats the admissions and positive allegation in paragraphs
1 to 3 of the above Defence as if they were set out here in full.

6. As a result of the negligence of the First and/or Second Defendants by Counterclaim, the Plaintiff by
Counterclaim has suffered loss and damage.

PARTICULARS

The loss of the Plaintiff by Counterclaims car $29,350.00
Less salvage value $ 350.00
Subtotal $29,000.00
Towing and Storage $ 200.00
TOTAL $29,200.00

AND THE DEFENDANT COUNTERCLAIMS:
A. Damages according to paragraph 6 of the counterclaim.
B. Interest pursuant to the Supreme Court Act 1986.
C. Costs.


DATED: 30 April 2008


SPRINGVALE MONASH LEGAL SERVICE
Solicitors for the Defendant




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3. [Reply and] Defence to Counterclaim

Reply

A reply to the Defence;
Optional (r 13.13(1));
Only necessary if (see r 13.07(1)):
o There is a new matter that will make a defence pleaded by the D not maintainable;
o There is a matter arising from the defence that would take the D by surprise if the P argued it without
specifically pleading it; or
o P wants to raise Qs of fact not arising from the defence.

Why only optional?
When pleadings have closed, its said that the parties have joined issues (settled on all things that are in
dispute). r 13.13(1): No reply or subsequent pleading merely joining issue shall be served. (2): At the close
of pleadings, a joinder of issue on the pleading last served is implied. (4) A joinder of issue operates as a
denial of every material allegation of fact made in the last pleading, except for (3) SOC or counterclaim,
which other party must respond to (because no joinder of issue is made on these).

Defence to Counterclaim

Must serve (see r 13.13(3));
Follow the same pleading rules as for a Defence (r 13.15(b) says O 13 shall apply to a defence to
counterclaim as if it were a defence).

Duties and Obligations
Paramount duty (see Civil Procedure Act s 16)

Each person to whom the overarching obligations apply has a paramount duty to the court to further the
administration of justice in relation to any civil proceeding in which that person is involved, including, but not
limited to-

(a) any interlocutory application or interlocutory proceeding;

(b) any appeal from an order or a judgment in a civil proceeding;

(c) any appropriate dispute resolution undertaken in relation to a civil
proceeding.






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Overarching Obligation Requirement of Proper Basis (see Civil Procedure Act s 18)

A person to whom the overarching obligations apply must not make any claim or make a response to any claim
in a civil proceeding that:

(a) is frivolous; or

(b) is vexatious; or

(c) is an abuse of process; or

(d) does not, on the factual and legal material available to the person at
the time of making the claim or responding to the claim, as the case
requires, have a proper basis.

Proper Basis Certification (see Civil Procedure Act s 42)

Proceedings may be commenced or substantive documents filed despite failure to certify (see Civil Procedure
Act s 45)
Court may take failure to comply with any certification requirement into account (see Civil Procedure Act s
46).

Challenges and objections

Inadequate particulars

r 13.11(1): The court may order a party to serve on any other party particulars or further and better
particulars of any fact or matter stated in the partys pleading, (2) if the order is necessary or desirable to:
(a) enable D to plead; or
(b) for some other special reason.

NOTE: The party should first apply by letter for the particulars they require, otherwise the Court may refuse
the order (r 13.11(3)).

Error in indorsement or pleading

r 23.02: Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement
of claim or pleading
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court
the Court may order that the whole or part of the indorsement or pleading be struck out
22
or amended.

22
Extremely difficult to get pleadings struck out, see Gunns case study.

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r 23.01: Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a proceeding
23

(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court
the Court may stay the proceeding generally or in relation to any claim or give judgment in the
proceeding generally or in relation to any claim.
(2) Where the defence
24
to any claim in a proceeding
(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious
the Court may give judgment in the proceeding generally or in relation to any claim.

r 27.07: Scandalous matter
Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the
Court may order
(a) that the matter be struck out; or
(b) if the document has been filed, that it be taken off the file.
[Generally not used for pleadings]

Amendment

If court ordered indorsement or pleading be amended per r 23.02, use r 36.01 (on p 38).

Case study: Gunns

r 13.11: Inadequate particulars
Bongiorno J said of Gunns statement of claim: There follows nine pages of particulars of that campaign.
They consist of long paragraphs which make general allegations against a very large number of individuals
and organisations including many defendants in this proceeding. The particulars also incorporate the
allegations contained in approximately 40 other paragraphs in the statement of claim. The overall
impression of them is that of a collection of very general allegations of wrongdoing by a large number of
people over an approximately five year period from 1999 to about 2004. Even if those defendants
mentioned could successfully navigate their way through the labyrinth of allegations in these particulars,
they would still not be able to understand the case [they] would be required to meet to defend the
allegation (para 20, July 2005).

23
Claim in a proceeding includes a claim by counterclaim, and third party notice (r 23.01(3)(a)).
24
Defence includes a defence to a counterclaim, and a defence to a claim by third party notice (r 23.01(3)(b)).

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r 23.02: Application to strike out SOCs
o Versions 1, 2 (judgement 7/05) and 3 (8/06) were challenged;
o Q: Has an intelligible and appropriate pleading been produced?
o Bongiorno J said (7/05, para 57):
It is not the function of the Court to draw or settle a partys pleading. The Court is confined to the
function of ensuring that pleadings are within the rules & fulfil the functions for which they exist. In
particular, it must ensure that one party is not placed at a disadvantage by the failure of another to
provide a proper, coherent, & intelligible statement of its case. In this case, it would be unfair to the
defendants to require them to plead to this amended statement of claim. It is embarrassing within the
meaning of RSC r.23.02.
o His Honour gave Gunns leave to amend (4 weeks);
o He tried to tell them what they should do (para 57):
Not only must the pleading inform the defendants of the case they must meet now, but it must clearly
set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity
to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very
significant matters may conceal claims which are merely speculative. If this be not the case, the
plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some
firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will
be a very complex one. The Court must ensure that the only claims which go to trial are those which
the plaintiffs are able to set out in a coherent & detailed form.
o Gunns complained that 4 weeks was not long enough, in response (para 60):
It may be that an exposition of the plaintiffs case against each defendant in more precise terms
would lead to a reduction in the size & complexity of a new statement of claim. That is a matter for
the plaintiffs & their advisers. They should be aware however that the Court will not tolerate laxity
of pleading or deficiency of particulars to the disadvantage of those against whom the proceeding is
brought. The case will be managed strictly. After all, the plaintiffs had as much time as they
required to prepare it before it even commenced. They cannot now complain of having to formulate
their claims properly in a timely manner or, as a last resort, face summary dismissal of them.
o # But if the judge never strikes out the pleading, what incentive does P have to prepare it properly?
o Re version 3 (8/06, para 33):
All of the defendants sought the striking out of V3. Some of them went further and sought that
judgment be entered for them against the plaintiffs (r 23.01), thus terminating this proceeding
forever. However, as was pointed out in the previous judgment, the plaintiffs have made a series of
serious allegations about individual acts of tortious behaviour by various defendants in several
sections of V3. They must be given an opportunity of bringing those allegations before the Court in
an intelligible and appropriate form, properly and economically pleaded. Many of them amount to
criminal offences, some of them serious, and it would be an injustice to the plaintiffs to enter
judgment against them and thus shut them out from litigating those allegations. The right to due
process is mutual.

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o His Honour ordered V3 be struck out, and the proceeding be stayed until further order;
o The 4
th
SOC was adequate.



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TOPIC 10: Methods of Gathering
Evidence

A. Discovery

Discovery is the disclosure of documents relevant to the matters pleaded to the other side;
After pleadings are closed.

Order 29 applies to a proceeding commenced by writ (r 29.01(1)(a));
Three step process:
1. Serve Notice For Discovery;
o r 29.02(1): Where the pleadings between any parties are closed
25
, any of those parties may, by
notice for discovery served on any other of those parties, require the party served to make
discovery of all documents which are or have been in that party's possession relating to any
question raised by the pleadings;
o (2): Shall be in Form 29A;
FORM 29A
Rule 29.02(2)
NOTICE FOR DISCOVERY
[heading as in originating process]

To the [identify party]
You are required to make discovery of documents within 42 days after service of this notice
on you.

Dated [e.g. 15 June 20 ].
[Signed]
o Served via ordinary service.
2. Obligation to make discovery
o r 29.03: A party upon whom a notice for discovery is served shall make discovery of documents
within 42 days after (a) service [or (b) day upon which notice is deemed to be served by virtue
of r 29.02(3)].

25
A notice served before pleadings are closed shall be taken to have been served on the day after pleadings close
(r 29.02(3)).

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3. Affidavit of Documents
o r 29.04: Prepare an Affidavit of Documents in Form 29B;
o Affidavit of Documents shall:
(a) identify the documents which are or have been in the possession of the party making the
affidavit;
(b) enumerate the documents in convenient order
26
& describe each document
27
or, in the
case of a group of documents of the same nature, shall describe the group, sufficiently to
enable the document or group to be identified;
(c) distinguish those documents which are in the possession of party making the affidavit
from those that have been but are no longer in that party's possession, and shall as to any
document which has been but is no longer in the possession of the party
(i) state when the party parted with the document; and
(ii) the party's belief as to what has become of it;
(d) where the party making the affidavit claims that any document in that party's possession
is privileged from production, state sufficiently the grounds of the privilege.
o At the end of Form 29B, two schedules:
Schedule 1: Documents you still have divide into 2 groups, Part 1: docs willing to show the
other side and Part 2: docs claiming privilege over (per r 29.04(d), have to state the grounds of
the privilege and what facts make it privileged);
Schedule 2: Documents you used to have.
o Has to be signed by the deponent (the client).

Must document be disclosed?

Q1: Is it a document?
o s 38 Interpretation of Legislation Act 1984 (Vic):
"document" includes, in addition to a document in writing
(a) any book, map, plan, graph or drawing;
(b) any photograph;
(c) any label, marking or other writing which identifies or describes anything of which it forms
part, or to which it is attached by any means whatsoever;
(d) any disc, tape, sound track or other device in which sounds or other data (not being visual
images) are embodied so as to be capable (with or without the aid of some other equipment) of
being reproduced therefrom;
(e) any film (including microfilm), negative, tape or other device in which one or more visual
images are embodied so as to be capable (with or without the aid of some other equipment) of
being reproduced therefrom; and

26
Usually chronological (by date).
27
Say whether its a copy or original.

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(f) anything whatsoever on which is marked any words, figures, letters or symbols which are
capable of carrying a definite meaning to persons conversant with them.

Q2: Is it relevant?
o Document must relate to question in proceeding, relate meaning either helps or damages your case;
o Four instances of when document is relevant (Peruvian Guano, 1882 Eng CA):
1. Documents that would
28
be evidence upon any issue in the case;
2. Documents that would advance the case of the party seeking discovery;
3. Documents that would damage the case of the party giving discovery; and
4. Documents which could lead to a train of inquiry which might advance or damage the case of
the party giving discovery.
o Facts of Peruvian: Contract cause of action. Ps claimed contract formed and Ds breached it. D
disputed whether contract formed. P sued D. In discovery, P referred to a book of company minutes
which referred to other docs not disclosed (and dated subsequent to alleged breach). P said not
relevant. Brett LJ said these docs may evidence that the whole matter was negotiation, not a contract,
and therefore relevant to Ds case and must be disclosed.

Q3: Is it or was it in the partys possession?
o r 29.01(2): Possession means possession, custody or power;
o Possession: the physical holding of the document resulting from the right to its possession (eg an
agent or bailee);
o Custody: the mere actual physical holding of a document, regardless of ownership, regardless of the
right to possession eg an employee;
o Power: the enforceable right to obtain possession or control of the document from the person who is
holding it ie an enforceable right to obtain possession from another person.

IF SO, then party has to disclose it. UNLESS

Q4: Covered by privilege?
o Grounds:
- Legal professional privilege;
- Privilege against self-incrimination;
- Privilege against exposure to penalties & forfeiture;
- Public interest;
- Without prejudice communications;
- Priest and penitent;
o Legal professional privilege
! To encourage full disclosure between solicitor and client;

28
Or may reasonably (per Brett LJ).

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! Protects info given between lawyer (solicitor or barrister) and client;
! Q: When is a document protected?
! Dominant purpose test: Communication which is made predominantly for the purpose of
obtaining legal advice or use of a lawyer in existing or anticipated litigation is protected (HC in
Esso v Commissioner of Taxation, now contained in s 119 Evidence Act 1995 (Cth));
! A party can waive privilege.

Q5: Is there restricted discovery?
o r 29.05: Court can order at any time that discovery by a party not required, or discovery limited to
certain documents, certain classes of documents, or certain questions in the proceeding [or, not
written in the rule but Karinne said it, that only certain people can see doc eg lawyers for other side];
o Eg to not disclose confidential commercial information thats not privileged;
o Example: Mobil Oil v Guina Developments (Vic CA)
! Facts: GD put in a tender to build petrol station on new Western Ring Road. Mobil and
McDonalds won tender. G sued Roads Corporation for m&d conduct under TPA, saying they
didnt select winning applicant according to advertised basis, rather on how well known the
applicants were;
! Mobil and McDonalds didnt want tender document to be handed over to GD. In the next
competition between the two, GD could use that info to underbid M&M. So they came in as
interveners;
! Held: Confidentiality alone will not ordinarily be sufficient reason to deny inspection by
opposite party. BUT in a situation like this, where GD would inevitably use info if they found
out about it and M&M could not prove that GD was using it, the attainment of justice requires
limited disclosure (to counsel, solicitors and nominated experts).

Inspection of documents

r 29.09(1): If the party wants to inspect any document in Affidavit of Documents, complete and serve a
Notice to Produce;
Form 29C (r 29.09(3));
r 29.09(2): The party upon whom a notice to produce is served shall, within 7 days after service, serve on
the party requiring production a notice appointing a time within 7 days after service of the notice under this
paragraph when, and a place where, the documents may be inspected;
Can photocopy the documents (rr 29.09(4) and (5)).

In addition to inspecting docs in the Affidavit of Documents, can inspect docs referred to in the pleadings (r
29.10(2)). Rule 29.09 applies (r 29.10(3)). Notice to Produce shall be in Form 29C (r 29.10(5)).

Particular discovery

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If you suspect the other side hasnt made full discovery;
r 29.08(2): If grounds to believe a relevant doc or class of docs is or has been in a partys possession, Court
may order that party to make and serve on any other party an affidavit stating:
(a) whether such docs were ever in the partys possession, and if so, describing each one; and
(b) if it has been but is no longer in that partys possession, when the party parted with it and that partys
belief as to what has become of it.

IF THEY DONT COMPLY: Order for discovery

r 29.11: Where a party (a) fails to make discovery (rr 29.03 and 29.04); (b) fails to serve a notice appointing
a time for inspection (rr 29.09 or 29.10); (c) objects to produce any document for inspection; (d) offers
inspection unreasonable as to time or place; or (e) objects to allow any document to be photocopied or to
supply a photocopy of the document; the Court may order the party to do such act as the case requires.

Punishment is costs.

Supplementary discovery

r 29.15: A party who has made an affidavit of documents is under a continuing obligation to make
discovery of documents with respect to documents of which the party obtains possession after making the
affidavit.
IE as new docs come into your possession, have to make supplementary affidavit of documents.

Permitted use of discovered documents

Limitations on use:
o Implied undertaking not to use a discovered document for any purpose other than the litigation in
which it is disclosed;
o Given by party and their solicitors may be committed for contempt of court if they use documents
for outside purposes;
o Extends to answers to interrogatories, documentary witness statements and material provided under
non-party discovery.

If document becomes publically known (eg read out in court), its not protected by undertaking anymore.

Case study: McCabe

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o Facts: McCabe commenced separate proceedings seeking declaration that use of docs outside the
proceedings was not limited by implied undertaking, so she could supply them to US Justice Dept;
o On 7 May 2002, Byrne J grants declaration;
o On 8 May, BAT seek to reinstate implied undertaking and dissolve 7 May judgment, but Byrne J
dismisses BATs application. BAT appealed to the Court of Appeal;
o On 14 June 2002, Court of Appeal overturns Byrnes J judgment pending determination of appeal in
the main proceedings.

DEFAULT

r 29.12.1: Default notice
(2) If a party required to make discovery of documents fails to make discovery within the time, the party
entitled to the discovery may serve on that party a notice in Form 29D.
(3) If, within 7 days after service of that notice, the party on whom the notice is served does not make
discovery, the Court may order
(a) If the party required to make discovery is P, that the proceeding be dismissed;
(b) If the party required to make discovery is a D, that Ds defence, if any, be struck out.
(4) Applies to a counterclaim and to a claim by third party notice as if they were a proceeding.
(6) The Court may set aside or vary an order made under (3).

Document destruction
s 254 Crimes Act 1958 (Vic), inserted by Crimes (Document Destruction) Act 2006 (Vic):
(1) A person who
(a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in
evidence in a legal proceeding; and
(b) either
(i) destroys or conceals it or renders it illegible, undecipherable or incapable of
identification; or
(ii) expressly, tacitly or impliedly authorises or permits another person to destroy or
conceal it or render it illegible, undecipherable or incapable of identification and that
other person does so; and
(c) acts as described in paragraph (b) with the intention of preventing it from being used in
evidence in a legal proceeding
is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine
or both.
(2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in
progress or is to be, or may be, commenced in the future.

# Problems? Higher standard of proof, and requires proof of intention (like in McCabe, could say merely
housekeeping).

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AND

Evidence (and Miscellaneous Provisions) Act 1958 (Vic):
s 89A: A document is unavailable in a civil proceeding if- (a) the doc is or has been in the possession,
custody or power of a party to the proceeding; and (b) the document has been destroyed, disposed of, lost,
concealed or rendered illegible, undecipherable or incapable of identification.
s 89B(1): If it appears that- (a) doc is unavailable, and (b) no reproduction of the doc is available, and (c)
the unavailability is likely to cause unfairness to a party- the court, on its own motion or on application of a
party, may make any ruling or order that the court considers necessary to ensure fairness.
(2) A ruling or order may be- (a) that an adverse inference will be drawn from the unavailability, (b) that a
fact in issue between the parties be presumed to be true in the absence of evidence to the contrary, (c) that
certain evidence not be adduced, (d) that all or part of a defence or SOC be struck out, or (e) that the
evidential burden of proof be reversed in relation to a fact in issue.
s 89C: Court must have regard to- (a) the circumstances in which the doc became unavailable; and (b) the
impact of unavailability; and (c) any other matter court considers relevant.

AND

Civil Procedure Act 2010
s 29: A court may make orders it considers appropriate in the interests of justice (specifically in cases of
prejudicial affected individuals arising through contravention of overarching obligations).
s 55: A court may make any order or give any directions in relation to discovery it considers necessary or
appropriate.
s 56: A court may make any order or give any direction it considers appropriate if it finds that there has
been (a) a failure to comply with discovery obligations (b) a failure to comply with any order or direction
of the court in relation to discovery (c) conduct intended to delay, frustrate, or avoid discovery of
considerable documents.
s 57: Unless a court orders otherwise, any party to a civil proceeding may cross-examine or seek leave to
conduct an oral examination of the deponent of an affidavit of documents prepared by or on behalf of any
other aprty to that proceedings if there is a reasonable basis for the beliefe that the other party may be (a)
misinterpreting the partys discovery obligations (b) failing to disclose discoverable documents.
S 58: Nothing in the Civil Procedure Act 2010 derofates from the operation of Div. 9 of the Evidence
(Miscellaneous Provisions) Act 1958.

Case study: McCabe
o BAT destroyed docs before litigation started;
o McCabe sought remedy under r 29.12.1 (doc destruction provisions didnt exist then);
o Eames J did strike out Ds defence, saying process of discovery subverted by the defendant & its legal
advisers with the deliberate intention of denying the plaintiff a fair trial;

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o However, Court of Appeal reversed this. They said it happened before proceedings commenced, so
technically D havent done anything wrong. Only reason we would punish D is if they were trying to
pervert the course of justice, and McCabe didnt argue this;
o Pmt responded by introducing above legislation.

B. Preliminary discovery and non-party discovery

Discovery to identify a defendant

Can guess, go to court and lose and pay costs; OR
r 32.03: Where (1)(a) an applicant has made reasonable inquiries and is unable to identify the defendant to
bring a proceeding and (1)(b) it appears that some person has or is likely to have knowledge, facts,
document or thing tending to assist in such ascertainment, then (2) the Court may order that the person shall
(a) attend before the Court to be orally examined or (b) make discovery to the applicant of all documents
relating to the description of the person concerned.

Discovery from prospective defendant

Know who D is, but not sure if you have a good cause of action and need discovery to check;
r 32.05: Where (a) there is reasonable cause to believe that the applicant has or may have the right to obtain
relief from a person; (b) after making all reasonable inquiries, the applicant has not sufficient info to enable
them to decide whether to commence a proceeding; and (c) there is reasonable cause to believe that that
person has or is likely to have/had in their possession any document that would assist the applicant to make
their decision then the Court may order that that person shall make discovery of that document.

Discovery from non-party

r 32.07: On application of any party to a proceeding, the Court may order that a non-party in respect of
whom it appears has/had or is likely to have/had in their possession any doc which relates to any question in
the proceeding shall make discovery to the applicant of that document.

C. Interrogatories

Interrogatories are written questions prepared by one side that other side has to provide written answers for;
Another way to gather information;
Normally discover then interrogate.


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How do you serve interrogatories?

r 30.02: When interrogatories allowed
(1) Any party may serve interrogatories on another party relating to any question between them in the
proceeding;
(2) Where pleadings between any parties are closed, interrogatories may be served once without leave of
the Court by any of those parties on any other of them;
(3) Where (2) does not apply (pleadings not closed, or want to serve >1), the Court may order that any
party may serve interrogatories on any other party;
(4) Court may grant leave to an interrogating party
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to serve further interrogatories

r 30.04(a): Interrogating party has to write up questions, serve on the other party and file it with the court.

Can only ask questions about relevant issues/ issues in dispute NOT about what evidence theyll be using,
or witness credibility etc. Try to be as precise as possible, to get clear answers in return.

How does other party respond?

42 days to respond by filing affidavit and serving copy on interrogating party (r 30.04(b)).

r 30.05(1): Sources for answers
- (a) Partys own knowledge of the fact or matter. If no knowledge, own belief.
Knowledge is what the party actually knows; belief is what the party thinks on a reasonable basis is
correct (if relying on belief, have to state that in the answer);
- (b) Party will not have a belief where they have no info on which to form a belief or if for reasonable
cause they have no belief that the info is true;
- (c) Party shall answer from any belief irrespective of the source of the information;
- (d) Privileged information exempt;
- (e) Where the party has no knowledge, for the purpose of enabling them to form a belief they shall
make all reasonable inquiries to determine (i) whether any person has acquired knowledge in their
capacity as servant/agent and (ii) if so, what that knowledge is.

ALWAYS TRY NOT TO ANSWER
r 30.06(1): A party interrogated shall answer each interrogatory specifically.
(2) Where the party objects to answer, they shall state briefly (a) the grounds of objection and (b) the facts
on which it is based.

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Party who serves interrogatories (r 30.01).

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r 30.07(1): Objections to answer
A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of
the following grounds
(a) the interrogatory does not relate to any question between the party and the interrogating party [includes,
per (2), an interrogatory the sole purpose of which is to (a) impeach the credit of the party interrogated,
(b) enable the interrogating party to ascertain whether the party has a claim or defence other than that
which the party has raised in the proceeding, or (c) enable the interrogating party to ascertain the
evidence by which the interrogated party intends to prove their case];
(b) the interrogatory is unclear or vague or is too wide;
(c) the interrogatory is oppressive [requires unreasonable amount of work to answer];
(d) the interrogatory requires the party to express an opinion which the party is not qualified to give;
(e) privilege.

Default

r 30.09.1:
(2) If a party interrogated fails to answer interrogatories within the time limited, the interrogating party
may serve on that party a notice in Form 30A;
(3) If, within 7 days after service, the party interrogated does not answer the interrogatories, the Court may
order (a) if the party interrogated is P, that the proceeding be dismissed, or (b) if the party interrogated
is a D, that Ds defence be struck out.

r 30.10(1): A party who does not within the time limited comply with an order made under r 30.09 shall be
liable to committal.

D. Notices to Admit

Discovery # Interrogatories # Notice to Admit;
r 35.03:
(1) A party may serve on another party a notice (Form 35A, (4)) stating that unless that party, within a time
to be expressed in the notice (not less than 14 days), disputes the facts specified in the notice, that party
shall be taken to admit those facts;
(2) If the party served with the notice does not want to admit, must serve a notice of dispute (Form 35B,
(4)) within the time allowed. Otherwise, taken to admit those facts;
(3) By leave of the Court, a party may withdraw an admission taken to have been made under para (2).

r 35.06: Where the party served disputes the fact and afterwards its proven true at trial, that party will have
to pay the costs of proof.


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See r 35.05 re notice to admit for authenticity of documents.

E. Subpoenas

Notice to compel someone to attend court;
Subpoena anyone whos going to be a witness.

r 42.02(1): In any proceeding the Court may by subpoena order the addressee
(a) to attend to give evidence;
(b) to produce any document or thing for evidence; or
(c) both.

Must be served personally (r 42.05(1));
Conduct money must be given (r 42.06(1) conduct money means money to meet the reasonable expenses
of attending court and returning, r 42.01).
The following principles apply in determining whether a party is entitled to access documents the subject of a
subpoena: AFP v Magistrates Court of Victoria [2011] VSC 3, [28] (Forrest J).
(a)
it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely
the legitimate forensic purpose for which access to the documents is sought;
22

(b)
the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the
documents sought to be produced;
23

(c)
the applicant for the witness summons must also satisfy the court that it is on the cards,
24
or that there is a
reasonable possibility,
25
that the documents sought under the subpoena will materially assist the defence.
26

(d)
a fishing expedition is not a legitimate forensic purpose and will not be permitted;
27

(e)
the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic
purpose.
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There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they
may be of relevance or of assistance in his or her defence.
29

(f)
a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not
enough the criteria set out in (c) must be satisfied.
(g)
in criminal proceedings a more liberal view is taken by a court in respect of the application of the test. Special
weight is to be given to the fact that the documents may assist the defence of the accused.
30

(h)
where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents
and set aside the witness summons.
31



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TOPIC 11: Interlocutory procedure

General

Interlocutory means it is a court hearing before the actual trial;
Does not finally determine the rights of parties;
Generally, prevents final relief from being undermined by steps taken prior to trial.

Procedure:
- Party writes document called a summons (r 46.02(1));
- Form 46A (r 46.04(1));
- File with the Prothonotary (r 46.04(2));
- Per r 46.05(1), serve a sealed copy (sealed per r 46.04(3)) and a copy of any affidavit in support
30
on
every person to whom notice of the application is to be given (for the court to determine, r 46.03). Use
ordinary service, if writ served and appearance entered (otherwise, personal service r 46.05(3));
- Application can be heard ex parte, if the Court does not think notice should be given to another person
(r 46.03, eg where urgent) or if the person served fails to attend and the Court is satisfied the summons
was duly served (r 46.07(1)).
- The Court may set aside or vary an order where it was heard ex parte (r 46.08). Eg if all the info was
not disclosed in the affidavit in support.

Injunctions

Orders made with the purpose of regulating the position between parties in an action pending trial;
May be interim (ie temporary, of short operation) or final;
May be mandatory (requiring other side to do specified acts) or prohibitory (requiring other side to refrain
from specified acts);
May be made ex parte (above).

30
Affidavit in support sets out all the information that the court needs to make its decision.
Rules for affidavits set out in Order 43. r 43.01: (1) shall be made in the first person; (2) state place of residence
of deponent, their occupation, whether a party to proceeding; (4) divided into paragraphs numbered
consecutively; (5) signed by deponent; (6) each page shall be signed; and (7) shall be sworn. r 43.03(1): shall be
confined to facts in deponents knowledge, (2) but interlocutory affidavits can be based on belief (if stated). r
43.06(1): A document referred to in an affidavit shall not be annexed to the affidavit but may be referred to as
an exhibit.

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r 38.01: Court may grant an injunction at any stage in a proceeding or, in urgent cases, before the
commencement of a proceeding;
r 38.02(1): In an urgent case, the Court may grant an injunction on application made without notice.

Test:
To get an interim injunction, must establish:
1. There is a serious question to be tried (a prima facie case); AND
2. The balance of convenience favours granting an interlocutory injunction.
This is where equitys discretionary factors come in (ie look at the inconvenience and hardship that
would be occasioned to the parties, any acquiescence or delay on the part of the applicant, whether
the claim is frivolous or vexatious, desirability of preserving the status quo or preventing irreparable
injury pending a full hearing).

Search orders

Previously called Anton Piller orders and used to be part of the courts inherent jurisdiction to prevent
abuse of process;
New O 37B, introduced in 2006, codified & renamed search orders;
Write summons and go to court to get order. Then go with order to the premises.

r 37B.02(1): The Court may make a search order, in any proceeding or in anticipation of any proceeding,
with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a
respondent to permit persons to enter premises for the purpose of securing the preservation of evidence
which is or may be relevant to an issue in the proceeding or anticipated proceeding. A search order may be
in Form 37BA, (2).
Form 37BA:
FORM 37BA
SEARCH ORDER
[title of proceeding]
PENAL NOTICE
TO: [name of person against whom the order is made]
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE
ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU
WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO
BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO: [name of person against whom the order is made]

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This is a "search order" made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the
applicant has given to the Court the undertakings set out in Schedule B to this order and after the Court has read the affidavits listed in
Schedule C to this order.
The applicant has given to the Court the applicant's undertakings set out in Schedule B to this order.
The applicant's solicitor has given to the Court the applicant's solicitor's undertakings set out in Schedule B to this order.
Each independent solicitor has given to the Court the independent solicitor's undertakings set out in Schedule B to this order.
Each independent computer expert has given to the Court the independent computer expert's undertakings set out in Schedule B to this
order.
THE COURT ORDERS:


Test:
r 37B.03(1): The Court may make a search order if the Court is satisfied that
(a) applicant has a strong prima facie case;
(b) the potential or actual loss or damage to the applicant will be serious if search order is not made; and
(c) there is sufficient evidence in relation to the respondent that
(i) the respondent possesses important evidentiary material; and
(ii) there is a real possibility that the respondent might destroy such material or cause it to be
unavailable for use in evidence.

Eg in Anton Piller: Court of Appeal (UK) gave plaintiff an order that their solicitors could collect
confidential documents from the defendants premises (Ps English agents) because P had evidence that D
was going to give this information to a rival company. Ormrod LJ said Such orders will rarely be made,
and only when there is no alternative way of ensuring that justice is done to the applicant (at 61).

r 37B.03(2): Application shall be supported by an affidavit which shall include: (a) a description of the
things or the categories of things in relation to which the order is sought; (b) address or location of
premises; (c) why search order is sought, including whether there is a real possibility that things will be
destroyed or made unavailable for use in evidence; (d) prejudice, loss or damage likely to be suffered by
applicant if order not made; (e) name, address, firm and commercial litigation experience of an independent
solicitor
31
who consents to being appointed to serve the search order and supervise its execution; (f) if
premises are residential, whether or not applicant believes the only occupant is likely to be female, a child,
or vulnerable person (age, mental incapacity, infirmity or English language ability) # if so, Court will
make you bring a female or translator etc.
r 37B.03(3): Applicant must give the usual undertakings as to damages [ie that the applicant, by its counsel,
undertakes to the court that it will abide by any order which the court may make as to damages, should the
court determine that the respondent has suffered any damage by reason of this order which the applicant
ought to pay] and must undertake to pay the independent solicitors reasonable costs and disbursements.
Think carefully, can be expensive.


31
Required by r 37B.06.

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r 37B.05: The terms of the search order may direct each person who is named or described in the order to
enter premises [(1)(a)(i)], to take and retain any thing described in order [(1)(c)], to make copies/
photographs of any thing in the order [(2)(b)] or anything else as Court considers appropriate [(1)(e)].

Freezing orders

Previously called Mareva injunctions;
New O 37A, introduced 2006, codified and renamed freezing orders.
To stop D intentionally trying to become judgment proof/ frustrate enforcement of court order in Ps favour
(eg by sending assets off overseas).

r 37A.02:
(1) The Court may make a freezing order, upon or without notice to the respondent, for the purpose of
preventing the frustration or inhibition of the Courts process by seeking to meet a danger that a
judgment or prospective judgment of the Court will be wholly or partly unsatisfied;
(2) A freezing order may be an order restraining a respondent from removing any assets located in or
outside Aus or from disposing of, dealing with, or diminishing the value of, those assets;
(3) Use Form 37AA;
Test:
1. Applicant has a good arguable case (r 37A.05(1)(b)); AND
2. Having regard to all the circumstances, there is a danger that a prospective judgment will be wholly
or partly unsatisfied because the prospective judgment debtor might abscond, or their assets might be
removed from Aus, or from a place outside Aus, or disposed of, dealt with or diminished in value (r
37A.05(4)).
Court can make ancillary orders, if appropriate (r 37A.03(1); eg for respondent to tell applicant where and
what the assets are, (2)(a));
Notes: Can apply at any time (best at the start though), cant get more assets frozen than what their claim is
likely worth, and respondent is allowed to continue to make ordinary expenditure;

EG in Mareva, the Court of Appeal (UK) granted an ex parte injunction to restrain the defendant charterers
from removing or disposing any of the monies which they had received from sub-chartering Ps ship out of
the jurisdiction, because D was not paying P the charges as they became due. Lord Denning MR said
injunction should be granted, as the time charterers have control of the bank account and may at any time
move the money out of the country.

r 37A.02(5): Affidavit in support must contain
(a) Info about the judgment that has been obtained, or info about the cause of action including (i) the basis
of the claim for substantive relief, (ii) the amount of the claim, and (iii) if application made ex parte,
the applicants knowledge of any possible defence;

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(b) The nature and value of the respondents assets, so far as theyre known, within and outside Aus;
(c) The danger of respondent or person controlling assets absconding, removing assets from Aus, dealing
with assets or diminishing their value;
(d) The identity of any other person who the applicant believes may be affected by the freezing order and
how that person may be affected by it.

Applicant has to give undertaking as to damages (ie theyll compensate anyone who has to expend money in
carrying out the order). Could be expensive.

Form 37AA

FORM 37AA
Rule 37A.02
FREEZING ORDER
[title of proceeding]
PENAL NOTICE
TO: [name of person against whom the order is made]
IF YOU:
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING
OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO
BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO: [name of person against whom the order is made]
This is a "freezing order" made against you on [insert date] by Justice [insert name of Judge] at a hearing without notice to you after the
Court has been given the undertakings set out in Schedule A to this order and after the Court has read the affidavits listed in Schedule B to
this order1.
The applicant has given to the Court the undertakings set out in Schedule A to this order.
THE COURT ORDERS:


Security for costs

For Defendant.

r 62.02(1): Where
(a) P is ordinarily resident out of Vic;
(b) P is a corporation or sues, not for Ps own benefit but for the benefit of some other person [not in a
representative capacity], and there is reason to believe that P has insufficient assets in Vic to pay the
costs of D if ordered to do so;
(c) A proceeding by P in another court for the same claim is pending;

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(d) The address of P is not stated or is not stated correctly in the writ [and P did not act innocently and
without intention to deceive, (2)];
(e) P has changed his, her or its address after the commencement of the proceeding in order to avoid the
consequences of the proceeding;
(f) Under any Act the Court may require security for costs
The Court may, on the application of D, order that P give security for the costs of the D of the proceeding
and that the proceeding as against D be stayed until the security is given.
r 62.04: Where a plaintiff fails to give the security required by an order, the Court may dismiss the
plaintiffs claim.

Repercussion: some Ps might not be able to afford litigation, this prevents them from litigating.



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TOPIC 12: Disposition without trial

1. Summary disposition

Summary disposition = judgment from court without trial;
Note: so res judicata applies, even though no trial.

Default judgment

Interlocutory procedure, so follow steps on p 97.

Four occasions:
1. r 21.01(2): Where a defendant does not file an appearance within the time limited, the plaintiff may
enter or apply for judgment against the defendant.
(3) P must file: [a summons], and also (a) a notice to the Prothonotary requesting the Prothonotary to
search for an appearance by the defendant, (b) an affidavit of service, and (c) where a claim is made
other than for the recovery of a debt, damages or any property, a statement of claim (if no special
indorsement in writ).
2. r 21.02(1): Where any defendant, being required to serve a defence, does not do so within the time
limited, the plaintiff may enter or apply for judgment against that defendant.
(2) P must file: [a summons], and also an affidavit proving the default.
Also applies to a defence that was struck out (r 21.02(3)) and a counterclaim (r 21.06).

3. r 24.02(1): Where a party fails to comply with an order to give particulars of any pleading, or with an
order for the discovery or inspection of documents, or for answers to interrogatories, the Court may
order
(a) if the party is P, that the proceeding be dismissed;
(b) if the party is a D, that Ds defence be struck out (and then use r 21.02).
4. Where any court order is not complied with, the Court under its inherent power can give default
judgment (can include in the order a self-executing order, meaning on expiry of order the other party
automatically gets default judgment).

If other party wants to CHALLENGE default judgment:
For O 21 judgments, use r 21.07: D can ask for it to be set aside.
For O 24 judgments, use r 24.06: again, D/P can apply for it to be set aside.
Party will have a right for it to be set aside if mistake (irregularity); otherwise, have to ask for courts leave.

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Court will ask: Was there unreasonable delay? Reason for failure? What does it mean for other party to set
aside the order can damages compensate for any change in position?

Summary judgment

Get judgment on the merits of the case without trial;
No default, both parties behaving themselves.

FOR PLAINTIFF
r 22.02(1): Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for
judgment against that defendant on the ground that the defendant has no defence to the whole or part of a
claim or no defence except as to the amount of a claim.
32

IE D has no possible defence and so Court will give judgment.
Proceeding must have been commenced by writ (r 22.01);
r 22.03(1): Application by P for summary judgment is made by summons supported by an affidavit (a)
verifying the facts on which the claim is based and (b) stating that in the belief of the deponent there is no
defence to that claim, or no defence except as to the amount claimed. (4) P shall serve the summons and a
copy of the affidavit in support on D not less than 14 days before the day for hearing.
BUT r 22.04(1): D may show cause against the application by affidavit. (3) D shall serve a copy of any
affidavit on P not less than 3 days before the day for hearing, unless the Court otherwise orders.

FOR DEFENDANT
See r 23.01, p 84 (eg abuse of process where 2 actions are commenced in different jurisdictions relating
to single incident or cause of action, or where there has been considerable delay in the commencement or in
the conduct of proceedings- see Cubillo);
r 23.03: On application by a defendant who has filed an appearance, the Court at any time may give
judgment for that defendant against the plaintiff if the defendant has a good defence on the merits;
Very difficult to get, as depriving P of their right to trial.

FOR BOTH
The power to obtain summary judgment must be exercised with exceptional caution and should never be
exercised unless it is clear that there is no real question to be tried (OLoughlin J in Cubillo);
In this case, plaintiffs were 2 Aboriginals who were members of the Stolen Generation and wanted to sue
the Cth Govt. In both cases, the limitation period had expired (proceeding brought 54 and 43 years later).
Cth asked for case to be summarily dismissed. OLoughlin J refused the application, as the Ps could get

32
r 22.02(2): Para (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or
seduction or to a claim based on an allegation of fraud.

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extension of time and this requires a full trial of the issues. At trial, once it became clear Ps would not get
extension, OLoughlin J then dismissed the case summarily.

Vexatious litigants

s 21 Supreme Court Act:
(2) Where court satisfied that person has habitually, persistently & without any reasonable ground instituted
vexatious legal proceedings, can declare that person a vexatious litigant, (3) which means they must not
commence/continue proceedings in SCV or inferior court or tribunal without leave of Supreme Court.

2. Dismissal for want of prosecution

r 24.01: The Court may order that the proceeding be dismissed for want of prosecution where the plaintiff-
(a) fails to serve SOC within time limited; or
(b) does not within a reasonable time after the commencement of the proceeding file and serve notice of
trial or apply to have a date fixed for the trial of the proceeding; or
(c) fails to file and serve notice of trial within the time allowed to P by the Court when fixing a date for
trial of the proceeding under r 48.02(b).

3. Settlement

Informal settlement

Negotiations # reach arrangement # settlement contract;
Make sure you put in settlement contract:
- Written, and get court to sign contract so its enforceable as a court order;
- Effect a formal Discontinuance (see below);
- Promise not to litigate again (as res judicata doesnt apply);
- Settlement value; and
- How to pay costs (as per r 25.05, discontinuing party has to officially pay costs).

Formal offers to settle

Without prejudice communications inadmissible as evidence.


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Calderbank offers are a formal offer to settle the case + a warning that this offer will be disclosed to the
court in assessing costs (cf. without prejudice offers). Eg without prejudice save as to costs. Resort to
these is normally unnecessary, given O 26.

Offers of Compromise:
o INCENTIVE TO SETTLE;
o Rationale espoused by Court of Appeal (NSW) in Maitland Hospital v Fisher (No 2): The objects of
the rule include 1) to encourage the saving of private costs and the avoidance of the inherent risks,
delays and uncertainties of litigation, 2) to save public costs incurred in litigation, and 3) to
indemnity the party who has made the reasonable offer of compromise against costs thereafter
incurred;
o Procedure:
- Step 1 Offer:
- Party (P/D) may serve on the other an offer of compromise (r 26.02(1));
- Serve in courtroom;
- It shall be in writing and contain a statement that it is served in accordance with O 26 (r 26.02(3)
(a),(b));
- It may be served at any time before verdict or judgment (r 26.03(1)). Can be made during trial
(Baxter v Mule);
- A party can serve more than one (r 26.03(2));
- It may be expressed to be limited as to the time the offer is open to be accepted after service, but
not less than 14 days (r 26.03(3)). BUT it shall not be withdrawn during the time it is open,
unless Court otherwise orders (r 26.03(5)). IE second offer does not withdraw first offer until
time expires (Baxter v Mule);
- Its an offer of compromise made without prejudice, unless otherwise provides (r 26.04). IE no
mention of it made until all questions of liability and relief to be granted have been determined
(r 26.05). So DO NOT FILE in court.

- Step 2 Acceptance:
- A party on whom an offer of compromise is served shall within 3 days after service serve a
written acknowledgement of service on the party serving the offer (r 26.03(3.1));
- If the party on whom an offer is served wants to accept the offer, they serve notice of acceptance
in writing before (a) the expiration of the time specified or, if no time specified, within 14 days,
or (b) verdict or judgment- whichever event is sooner (r 26.03(4)). Can still accept even if during
that period that party makes an offer of compromise (r 26.03(6));
- Upon acceptance of an offer of compromise, D shall pay the costs of P in respect of the claim up
to and including the day the offer was served, unless the Court otherwise orders (r 26.03(7)).
Any term in offer that purports to negative or limit this shall be of no effect (r 26.03(8));
- If offer provides for payment of money to P, it shall be paid within 14 days unless otherwise
specified (r 26.03.1).

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- Step 3 Enforcement:
- Where a party to an accepted offer of compromise fails to comply with terms, then, unless for
special cause the Court shall otherwise order, the other party shall be entitled, as that party may
elect, to (a) judgment in the terms of the accepted offer; or (b) judgment (if P, by dismissing
proceeding, or if D by striking out defence) (r 26.07(1)).

o Failure to accept:
- Plaintiff
- r 26.08(2): If Ps offer is rejected, and P gets judgment # amount offered, then:
(a) If claim concerns death or bodily injury, P gets costs taxed on an indemnity basis
33
;
OR
(b) Otherwise, P gets costs up to and including day of offer on party and party basis
34

and thereafter on an indemnity basis.
- Defendant
- r 26.08(3): If Ds offer is rejected, and P gets judgment $ amount offered, then:
(a) D pays Ps costs on party/party basis up to the day the offer was served; AND
(b) P pays Ds costs after that date on party/party basis.
- Discretionary;
- (2) and (3) shall not apply unless Court is satisfied that the party serving the offer of
compromise was at all material times willing and able to carry out the partys part of what was
proposed in the offer (r 26.08(7)).

o Multiple defendants
Where Ds are jointly or jointly and severally liable P may only offer to settle with all, and a D may
offer to settle the action against all (and where offer is made by 2 or more Ds, the Ds are jointly or
jointly and severally liable to P for the whole amount of the offer). Offers which do not comply with
these conditions do not attract cost penalties if not accepted (r 26.09).

4. Abandonment

Informal

33
INDEMNITY COSTS: All costs incurred except insofar as they are of unreasonable amount or have been
unreasonably incurred (r 63.30.1).
34
PARTY AND PARTY COSTS: All costs necessary or proper for the attainment of justice or for enforcing or
defending the rights of the party whose costs are being taxed (r 63.29).
Also SOLICITOR AND CLIENT COSTS: All costs reasonably incurred and of reasonable amount (r 63.30).


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P and D just do nothing.

Discontinuance

Formal ending;
r 25.02:
Plaintiff may discontinue:
- (2) A proceeding or withdraw any part of it (a) before the close of pleadings; OR (b) at any time, by
leave of the Court or with the consent of all other parties; or
- (4) A defence to counterclaim.
35

Defendant may discontinue:
- (3) A counterclaim or withdraw any part of it (a) before the close of pleadings; or (b) at any time, by
leave of the Court or with the consent of all other parties to the counterclaim; or
- (4) A defence
53
; or
- (6) A claim made against a third party by the third party notice or any part of it by leave of the Court or
consent of the third party.

Party who discontinues has to pay everyones costs up until point of discontinuance (r 25.05).



35
r 25.02(5): Cannot withdraw an admission or any other matter operating for the benefit of another party
without the consent of that party or the leave of the Court.

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TOPIC 13: Trial

Setting down for trial

Procedure (Practice Note 1 of 1996):
1. 1
st
directions hearing
o Given 42 days after 1
st
appearance;
o Given on the papers (no need to attend).
2. 2
nd
directions hearing
o Attendance required;
o 10-11 months from 1
st
appearance;
o Per Practice Note 4 of 2006, when ready for trial the lawyers for the parties inform the master or
judge. The matter is then referred to the Listing Master who allocates the date of this directions
hearing, within the following 2-4 weeks;
o This is where trial date is fixed;
o Prerequisites include mediation (Note 4) AND that P has filed and served a notice of trial (r
48.02). Notice of trial shall be in Form 48A (or if the Court so orders, Form 48B; r 48.03).
Includes info such as estimated length of trial and that everyone is ready on 2 weeks notice.
Signed by P, D and any third parties. O 48 applies to a proceeding commenced by writ or
originating motion (r 48.01(1)), but does not apply to proceedings in specialist lists (per (2));
o Trial fees must be paid to Court before trial;
o Case is then set down to trial.
3. Trial
o If parties not ready, will be hit with costs (order for costs thrown away);
o Trials are to stop at the expiry of the estimated time for trial, to resume at a later date. Costs
orders may deal with the consequent costs thrown away.

Default: If P does not within a reasonable time after commencement of proceeding file and serve notice of
trial or apply to have a date fixed for trial, D may file and serve notice or apply to the Court under r 24.01 to
dismiss the proceeding for want of prosecution (r 48.04).

Mode of trial

Generally, civil proceedings are tried by judge alone (r 47.02(2));
UNLESS
The Court otherwise orders (r 47.02(2));

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OR Proceeding is commenced by writ, and founded on contract or tort, and (a) P in the writ, or D by notice
in writing to P and Prothonotary within 10 days of appearance, signifies their desire to have proceeding so
tried, and (b) pays proper jury fees (r 47.02(1)). The Court can override their choice if in its opinion the
proceeding should not in all the circumstances be tried before a jury (r 47.02(3)).
Trial with a jury shall be with a jury of six (r 47.02(4)).

Order of Evidence and Addresses

Order:
o Who begins? The party who bears the burden of proof, usually P (r 49.01(2)(a) subject to any
directions of the Court per r 49.01(1));
o The party who begins (P) opens with an opening address = narrative of the case (r 49.01(4));
o P then calls evidence;
o Ps evidence is cross-examined by D, and then re-examined by P;
o D can then open and call evidence cross-examined and re-examined;
o Who closes last? Usually P (r 49.01(6)), but if D calls no evidence nor tenders anything in cross-
examination he gets the benefit of closing address last (r 49.01(5)). Closing = argument for outcome
based on evidence or inferences to be drawn from evidence.

Where there are multiple Ps or Ds, usually follow order on the record (eg how listed on writ, Merrett v
Merrett [1933] VLR 177), unless court otherwise orders (per r 49.01(1)).

Verdict and judgment

Distinction between verdict and judgment:
Verdict = conclusion reached on matters of fact;
Judgment = conclusions reached on matters of law and orders made.
Jurys conclusion is called the verdict, whereas judge makes a judgment (note: if just a judge, call it all a
judgment).

Judgment pronounced when it is delivered;
Judgment generally takes effect from its pronouncement;
Judgments and Orders must be formally authenticated after the Court has delivered judgment as condition
of enforcement or appeal (r60.01). Judgment authenticated when embodied in a formal, sealed record and
recorded in courts records.



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TOPIC 14: Costs

General rule

Costs

What is meant by costs?
o Costs of litigation = the amount of costs in a legal proceeding which the court orders one party to
pay another;
o CF. Solicitor and own client costs = actual, real costs => how much the client has to pay for
representation. Two parts: services/professional costs (what solicitor charges for doing the work; can
charge by time or by scale) and disbursement (costs paid on behalf of client; eg photocopying,
barrister, experts, company searches, court fees etc);
o Costs of litigation is only a fraction of solicitor and own client costs. This discrepancy
discourages litigation, because even if the party wins and gets costs theyll still be out of pocket.

General rule

The Court has discretion as to costs and has full power to determine by whom and to what extent the costs
are to be paid (s 24 Supreme Court Act). This power and discretion shall be exercised subject to and in
accordance with Order 63 (r 63.02).
The Court has general discretion to order whatever it sees appropriate in the interests of justice (s 28 / 29
Civil Procedure Act 2010), and to take failure to comply into account in doing so (s 46 Civil Procedure Act
2010).

Q1: Who is entitled to costs?

Subject to these Rules or court order, a party shall not be entitled to recover any costs of the proceeding
from any other party (r 63.13).

Special rules that entitle one party to costs:
o Where one party applies for an extension of time (eg to serve and file pleading) that party shall pay the
costs of and occasioned by the application [of both parties] (r 63.14);

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o A party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party
notice shall pay the costs of the party to whom that relates, up to the time of discontinuance or
withdrawal (r 63.15);
o Non-acceptance of offer of compromise costs determined according to r 26.08 (r 63.16);
o A party who fails to make discovery or answer interrogatories shall pay the costs of the notice served in
accordance with r 29.12.1 or r 30.09.1 (r 63.16.1);
o A party who amends a pleading shall pay the costs of and occasioned by the amendment (r 63.17);
o When P gets default judgment, they also get judgment for costs (r 21.03).

If no special rule, have to get court order:
o How does the judge exercise their discretion?
o Costs indemnity rule: successful party recovers costs from unsuccessful party (costs follow the
event);
o Practice, not in the rules;
o Exceptions:
Remember the court has an absolute and unfettered discretion to award or not award costs [to a
successful party]the judge ought not to exercise his discretion against the successful party except for
some reason connected with the case (Gobbo J in Byrns v Davie).
1. Misconduct of one party
! Eg Verna Trading: the defendant insurance company forced P to sue because they refused to
tell him why they wouldnt pay Ps claim (misconduct). D won at trial. Trial judge held that D
should pay Ps costs up to and including day 1 of trial on SOLICITOR AND OWN CLIENT BASIS,
and no order for costs re trial (as P shouldve settled once D told him their defence);
! Court of Appeal upheld decision of trial judge, but said there needs to be a more compelling
reason to deprive a successful D of their costs than a successful P, because D is always an
unwilling party to the proceeding.
2. Party wins in wrong court
! Ie if P could have sued in a lower court;
! r 63.24(1) (re County Court): a successful P is entitled only to the costs to which P would have
been entitled if they had brought proceeding in CC, less an amount equal to the additional
costs incurred by D by reason of proceeding having been brought in SC instead of CC;
! Discretionary, so convince court there was good reason for suing in SC (eg complex case,
difficult legal question, seeking remedy only available in SC).
3. Party ultimately wins but loses on some issues
! Eg if P sued D for 2 causes of action, but only succeeded on 1 (also for elements in action);
! Options:
a) P gets costs, as winner overall; or
b) D pays costs of Ps successful cause of action, and P pays costs for unsuccessful CoA; or
c) Most common percentage basis (eg we spent 4/10 days in trial on the successful cause
of action, so P should get 40% of their costs).

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! Eg Byrns v Davie (SCV): P sued D and succeeded in matters that took up about 70% of the
hearing time. However, they failed on a threshold matter and hence failed overall. Gobbo J
said he would apportion costs according to issues. After doing this, the Ds could only recover
40% of their costs.
4. Public interest litigation
! Eg Tampa case: Litigation brought by solicitors acting bro bono on behalf of the detained
rescuees on the MV Tampa. They lost. Cth Govt sought costs (from the rescuees, so in theory
only, as no way they could pay costs);
! Full Federal Court said the Cth should not receive its costs, despite being successful, because
of the public interest nature of the litigation;
! Per French & Beaumont JJ, [Solicitors] have acted according to the highest ideals of the law.
They have sought to give voices to those who are perforce voiceless and, on their behalf, to
hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately
unsuccessful in the litigation they have served the rule of law and so the whole community.
! The existence of this exception was affirmed by a majority of the High Court in Oshlack.

Costs orders against lawyers

Courts may award costs against a partys legal advisers;
r 63.23 (1) Where a solicitor [or barrister, (7)] has caused costs to be incurred improperly or without
reasonable cause or to be wasted by a failure to act with reasonable competence and expedition
36
, the Court
may order that (a) costs between solicitor and client be disallowed or solicitor repay client any money paid,
(b) solicitor pay to client costs which the client has been ordered to pay to another party, or (c) solicitor pays
all costs payable by any other party;
(2) A solicitor/barrister fails to act with reasonable competence and expedition for the purpose of para (1)
where: any application in or trial of a proceeding cannot conveniently be heard or proceed, or fails or is
adjourned without any useful progress being made, by reason of the failure of the solicitor to (a) attend, (b)
file any doc, (c) lodge or deliver any doc, (d) be prepared with any proper evidence or account, or (e)
otherwise proceed.

Q2: At what scale should costs be paid?

Scale = different bases of taxation.


36
Need something akin to abuse of process (White v Flower (1998) 156 CLR 169) and merely accepting a
hopeless case is not of itself enough, unless using arguments/ litigation for an improper purpose (Levick v
Deputy Commissioner of Taxation [2000] FCA 674). Reflects tension between wanting lawyers to freely take on
clients without fear of costs, and not having them act irresponsibly and bring weak claims.

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Three different scales:
1. PARTY AND PARTY COSTS (r 63.29): all costs necessary and proper;
2. SOLICITOR AND CLIENT COSTS (r 63.30): all costs reasonably incurred; or
3. INDEMNITY COSTS (r 63.30.1): all costs except unreasonable ones.

IN GENERAL r 63.31: Except as provided by these Rules or any order of the Court, costs shall be taxed
on a PARTY AND PARTY BASIS;
BUT the Court can choose any basis it likes (r 63.28(d), eg court in Verna chose solicitor and own client).

Case study: Gunns

Bongiorno J had already struck out V1 and V2 of Gunns SOC. When V3 was struck out, the defendants
asked him to award costs against Gunns on an indemnity basis (or at least solicitor and client basis);
Held (Bongiorno J, October 2006):
PARTY AND PARTY BASIS;
His Honour needed to find evidence of misconduct or unreasonable behaviour in relation to the SOCs (at 6).
None here they were flawed, P did not heed warnings given by Court when V2 was struck out, but it was
still an improvement on V2 and therefore no evidence P had malicious or unreasonable intentions (at 7-8).

Case study: Mega-litigation

Seven Network v News Limited:
Facts: Concerned right to broadcast AFL on TV. 2 applicants in FCA (including Seven Network) against 22
respondents. Seven Network lost. The trial lasted for 120 hearing days, and Sackville J estimated the parties
spent in the order of $200 million on legal costs;
All but 3 respondents had made agreements with SN on costs. Everyone agreed that SN should pay the costs
of these respondents, but at what scale?
In 2005, the respondents made an offer of compromise to SN = $10 million + their costs up until that point
(~$40 million). SN rejected offer and went to trial, because it was seeking $1.1 billion in damages. The
respondents argued that penalties in o 26 should apply, but since r 26.08 only applies where P wins, its
discretionary;
Policy: Two seemingly irreconcilable objectives:
1) Protecting access to justice by only exposing an unsuccessful litigant to an order for costs on a party and
party basis. IE P can take risk they might lose, as cheaper; and
2) Relieving a successful litigant from the burden of costs which that litigant should not have been required
to bear.
His Honour says in meta-litigation he prefers INDEMNITY COSTS over party and party costs. Hes trying to
encourage settlement because it uses all these court resources. He says (at 10): In my view, the expenditure

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of $200 million (and counting) on a single piece of litigation is not only extraordinarily wasteful, but
borders on the scandalous.
However, he makes an order for PARTY AND PARTY COSTS. Why? He said the respondents only objection
was that the offer of compromise had been unreasonably refused. He said it wasnt that unreasonable. He
suggested that if the respondents had run their argument a different way, he might have given them
indemnity costs (see [81] ie that SNs case was too broad, unrefined and unfocused and so unreasonable).

Special cases

Interlocutory procedures

Who pays for the interlocutory proceeding?
Some possible orders AFTER INTERLOCUTORY PROCEEDING include:
o Costs are reserved: Question of costs of interlocutory proceedings is deferred until after trial;
o No order as to costs: Each party bears own costs of hearing;
o Costs in the cause (also known as Costs in the application are costs of the proceeding): Costs are to
be borne by the party that ultimately loses the action. Alternative is Costs are P/Ds costs in the
cause, which means the named party will get the costs of this hearing if they get costs at trial (if they
dont get costs at trial, each party pays their own interlocutory costs);
o Costs in any event: Winner of the application gets the costs of the application, regardless of who gets
costs at trial;
o Costs thrown away: Costs wasted because steps already taken became pointless to be borne by the
party that caused them to become pointless; or
o If order is silent as to costs: Presumptions operate losing party pays winning partys costs (costs
indemnity rule).

If AFTER TRIAL the judge orders Costs of the proceeding, it includes costs of trial + costs of interlocutory
applications, unless specific cost order along the way (cf. Costs of trial, which include only the costs of
trial).

Counterclaims

What if P is successful in claim and D is successful in counterclaim?
Options:
a) Judge could treat actions as separate (percentage basis allocate costs according to how long each
separate action took); or
b) Most common overall winner gets costs (eg if claim > counterclaim, then P gets costs).
Discretionary, so can argue why court should deviate.

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Multiple defendants

P vs 2 Ds: P wins against D1, but loses against D2;
Two questions:
1. Will the Court make a multiple party order?
o Should the Court treat them as 2 separate actions (ie P v D1, where D1 pays Ps costs; and P v
D2, where P pays D2s costs)?
o OR Make a multiple party order (where losing D pays everyones costs)?
o GENERAL RULE: 2 separate actions;
o UNLESS multiple party order is fairer. Court will consider: Was it reasonable for P to have
joined these Ds? Why did they do it? How related were the causes of action? How did the
various parties behave in terms of trying to sort out who was to blame?
o Eg if neither Ds cooperated and told P who was to blame, then P has no choice but to sue both.
Or, as in Vucadinovic, where P thinks each D might be partly responsible.
2. If so, what type of order will be made?
o Losing D pays winning P and Ds costs;
o For losing D paying winning D:
o Bullock order: P pays winning Ds costs, and then gets reimbursed by losing D;
o OR Sanderson order: Losing D pays winning Ds costs directly;
o DEFAULT: Sanderson order;
o Generally makes no difference, except where one party is insolvent (eg if D1 is broke, then
under Sanderson order D2 wont recover costs, cf. Bullock order). In these circumstances, Court
may grant a Bullock order to favour the winning D (see Vucadinovic);
o Eg Vucadinovic v Lombardi: V was a passenger in Ls taxi, which crashed into Meyers truck. V
sued L and M for personal injuries. Jury found L 100% to blame, and V was awarded $7,500 in
damages. L only had $4,000 from insurance. Costs? V wants Sanderson order; M wants Bullock
order. Pape J preferred M and gave Bullock order. Why? V had other options, namely to settle
with L, so M should get costs so far as possible (V took the risk, and now has to bear loss).

Q3: What is the Quantum of costs?

r 63.03(2): Costs should be paid forthwith;
How do you know amount?
Generally, trial judge does not specify an amount;
Instead, parties meet outside court and agree on the amount;
What happens if they cant agree?
o Matter goes to Costs Court;

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o Initiated by summons filed with Taxing Masters Associate or the Prothonotary (r 63.38(1), in
Form 63A, (3); along with a copy of the order or judgment, (2); and serve, (4));
o Also file and serve a bill of costs in specific form (rr 63.39, 63.40). This bill of costs lists, in
chronological order, every single task done by solicitors with a price tag;
o Other side can object to either the task or the price;
o If the parties still cant agree, then appear before the Taxing Master/ Associate Judge. Have to
justify every single entry;
o Court finds a figure, and the other side then has to pay that forthwith.



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TOPIC 15: Enforcement

Parties at this stage referred to as the judgment creditor (winner) and the judgment
debtor (loser).
Judgments are not self-executing; if the JD doesnt do what is ordered, the successful
party must take steps to enforce the judgment.
Incentives are provided for JD to pay amount of the judgment: (a) interest accrues at a
rate far higher than ordinary commercial rates (b) JD liable for any enforcement costs
(c) property sold to enforce a judgment debt usually realises a price less than market
value.
Judgment creditor has 15 years to enforce the judgment (Limitation of Actions Act
s 5(4).

Modes of Enforcement:
Generally most modes of enforcement are available to any JC; although some more suited to
money judgments than to orders that a party do some act. Best mode usually depends on the
JD. Examples:
Warrant of Seizure and Sale (selling the debtors property to recover the debt).
- The JC applies without notice to the prothonotary using form 68A.
- The JC pays the fees, and prothonotorary forwards a sealed copy to Sherriff for
execution.
- The court then directs the Sherriff to seize and sell property to satisfy the judgment
debt.
- Warrant is valid for 1 year and may be extended for 1 year; states to what value assets
can be seized.
- Sherriff cannot force entry; but JDs failure to grant access constitutes contempt.
- Sherriff does not have to physically remove goods sufficient to post a notice stating
that goods have been seized and can sell them in situ.
- The Sherriff can seize real and personal property, money, and bills of exchange but:
JD has protection over basic possessions (Supreme Court Act s 42).
- Interpleaders: When other parties claim ownership of seized goods e.g. hire
purchase agreements the person claiming interest must file a notice with the Sherriff

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(Supreme Court Rules r 12.03). If the JC disputes the claim, the Sherriff applies to the
court for a determination as to whose property it is (Supreme Court Rules 12.07).
- Seized goods / property are sold at auction first; private sale only if auction fails to
attract adequate bids. Moveable property must be sold before real property.
Attachment of Debts.
- A JC may collect from people who owe the JD money (by-passing the JD).
- The debt must be owing and accrued cant attach to future debts.
- JC applies on summons with affadavits and notice.
- Court grants the order which is served on the non-party.
Warrant of Possession.
Changing Order.
Appointment of Receiver.
Bankruptcy / Winding Up proceedings.
Attachment of Earnings.
Instalment Order (Judgment Debt Recovery Act 1984).
- Can be sought by the JC or JD at any time. If granted, operates as a stay of other
enforcement measures.
- Success hinges on: (a) reasonableness of the payment period (b) JDs genuine ability
to pay the instalments.
- The Court has the power to imprison the JD for up to 40 days if there is; (a) persistent
wilful default in making payments (b) without an honest and reasonable excuse
(Judgment Debt Recovery Act 1984 s 19).
- All procedures for using the JDRA are set out in the Supreme Court Rules o 61.
Punishments for refusal to comply is usually contempt or sequestration.
Gathering Information to Enforce Judgment:
O 67 procedures are available to JC to find out about JDs assets.
Oral examination: JD attends court to be examined and produce documents about any
property capable of satisfying the debt. Any oral examination order must be
personally served.
Stays:
JD may apply for a stay of execution of the judgment (standard = 30 days).
Usually application made immediately after judgment.
If granted, JC cannot enforce judgment until expiry of the period.

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Granting of stays is discretionary; short stays are often granted after monetary orders,
but a stay is less frequently granted pending appeal, and is not automatic (Supreme
Court Rules r 64.25).
However: a successful plaintiff is entitled to the fruits of its judgment (Annot v
Lyle).
A stay is the exception, and a party seeking a stay must show special circumstances.