Class 1

Introduction to Civil Procedure a) Difference between substantive and procedural law p1 - all major courts have their own set of rules stipulating the procedure to be followed in commencing, maintaining, proving and enforcing civil claims made before them. - the current rules were originally made by the legislature, but have been substantially altered by rule committees dominated by judges. - most court rules nowadays amount to subordinate or delegated legislation, which is subject to parliamentary scrutiny and disallowance. - the rules of each major court run into hundreds of pages. They range from statements of general principle to regulations of minute detail, eg. prescribing the size of paper to be used for court files. b) NSW rules p3 - The rules if NSW are known as the Supreme Court Rules, which are abbreviated as SCR. Each states SCR are divided into Parts, which resemble the parts of an Act. Within the parts are rules, sub-rules and paragraphs eg. SCR Pt 10 r 1A(1)(c)(iii) - In some state jurisdictions, Orders is substituted for Parts. - We will look at the NSW Uniform Civil Procedure Rules which will become law in June 2005. These Uniform Rules consolidate the District, Supreme and Local Court Rules. - The NSW Civil Procedure Bill will also be enforced in June 2005. c) Definitions p4 Prothonotary- a courts chief registrar, who looks after the court registers and filing systems. In some jurisdictions, they can also assess damages. Registrar- courts which are split into different divisions will have a registrar for each. Master- a judicial officer, vested with some of the courts powers. Issue- a document is issued by the court when it proceeds from that court. A prepared document is given to the court clerk, who fills in any necessary detail (official number, date) and stamps it with a rubber stamp (the court seal) thus authenticating it. One copy is kept in the court file, and other copies are made for the parties. Court orders and judgments are also typed up by the party, and are checked by the judges associate (to see if they correspond to the judges notes), and signed by the judge. Writ- a document issued out of the court registry and demanding that the addressee either do something or suffer certain consequences in default. Some writs include: orginating writs (writs designed to start an action), subpoenas (writs compelling a person to attend court), and writs of execution or to enforce a judgment. In NSW, writs have been replaced by more straightforward documents. Originating Process- any document which actually commences and describes the plaintiffs case. Statement of Claim- this document is the plaintiffs pleading, setting out the nature of the plaintiffs case and the relief claimed. In NSW, it is itself an originating process, though in other jurisdictions, it follows the originating writ. Summons- like a writ, this document summons the addressee to attend or suffer certain consequences. Motion- To make a motion to or move to means applying for an order. So when a jury returns a verdict in your clients favour, you will move for an entry of judgment in accordance with the verdict, and you will also move for costs. Sometimes one must give an advance notice of motion, which is written notice that you intend to move for a particular order. Ex parte- An ex parte application is made in the absence of the opposing party. When the other party is present, the application is said to be inter partes.

Interlocutary- procedural matters or applications occurring before the trial are interlocutory eg. applications for discovery or particulars of an opponents pleadings. Discovery- the term used to describe the pre-trial process whereby one side looks at the other sides documents or administers interrogatories. Judgment- the courts final decision on the plaintiffs claim for relief. Order- a court command other than a final judgment. A defendant who successfully moves to set aside a plaintiffs statement of claim obtains an order setting it aside.

d) The efficiency goal. p6 Purposes of the rules of evidence and procedure: - effective enforcement of orders and judgments - speedy and final disposition of disputes and charges - accuracy of fact-finding - the best choice of court in terms of jurisdiction, cost. speed, effectiveness and ability - cost effective procedures for the vindication of rights and the enforcement of obligations - the provision to affected persons of due notice of a claim/charge and the chance to respond - the protection of basic rights/values eg. client privilege, right to remain silent, even at expense of accurate fact-finding - protection of status quo eg. BOP on plaintiffs (civil)/ prosecutors (criminal), civil rule that loser pays both sides costs - efficient use of judge time at trial by procedures designed to reduce element of surprise at trial and to streamline the articulation and presentation to the court of only those issues genuinely in contest - the provision of assistance to litigants in the gathering of evidence eg. devices such as discovery (pre-trial) and subpoenas (trial). - the provision of effective disincentives to frivolous claims. e) Defects in the system p6 1) Overly dependent on party-prosecution- excessive delay, inadequate/late investigation of facts, late/unfair settlements, restriction of the trial to an agenda determined by the parties, lack of real discipline over the parties by the courts. Objections- a more involved court might appear biased and diminish its moral authority 2) System is insufficiently open- all cases involve too much duplication of work. That is, each side worked in ignorance of the fact-gathering process of the other side, so when it came to present evidence, both sides had done the same work. The International Commission of Jurists recommended an increase in discovery procedures (to reveal to the other side what information was gathered), but discovery procedures are expensive anyway. 3) Over-dependence on all-embracing trial- There is a very sharp distinction between pre-trial and trial, in contrast to the inquisitrorial system, where emphasis on judicial responsibilities means there is little distinction. Rather, cases evolve as facts are gathered. 4) Too formalistic- Procedural rules often manipulated by rich parties to persuade other party to settle. Excessive use of discovery encourages this. f) Delay and Efficiency in Civil Litigation p7 Proposals for refom include: 1) Greater resources, in order to reduce court delay. 2) Reform of procedures. Enforce greater uniformity between procedural rules of different courts. At the same time, court procedures should be tailored for different types of proceedings. eg. special procedures for personal injury cases. Pleading, discovery and interlocutory procedures have been propular targets for reformers.

3) Court control- effective case management, with sanctions for non-compliance. Some examples include pretrial hearings and settlement conferences on a wider basis. 4) Institutional Change- Different reformers advocate different types of change. Some propose moving more matters from the superior to the lower courts, or to court officers, or to other mechanisms for dispute resolution eg. arbitration. Others want written argument, rather than oral, which takes up a lot of time. Some want to move away from an adversarial system to an inquisitorial system, saying it leads to the clarification and revelation of the truth. A step in this direction would involve court officials conducting inspections and interviewing witnesses. 5) Changes in the substantive law- Suggestions for a national accident compensation scheme. Examples include dealing with particular types of cases eg.personal injury, by an administrative rather than judicial body. 6) Lawyers and judges- greater education, training and discipline are mentioned as ways for overcoming delay, which is caused by oversights \, overwork, lack of skills or incompetence. Some of these reforms have already been implemented to some extent. However, the impact on delay has not been great. No one particular change has been indentified as being the key factor in reducing delay. Also, there are associated costs when trying to reduce delay eg. more judges or court officials. More extensive discovery procedures or mandatory pre-trial conferences will also result in more cost. Reduced delay may also mean that justice is compromised. The most significant side effect of reducing delay may be that additional cases are attracted to the system, making the changes self-defeating. However, if wider access to the courts is a priority, this could be a good change. Finally, with some changes to reduce delay, litigants might be penalised for the behaviour of their lawyers. g) Access to Justice: Interim Report- Lord Woolf. p8 Primary Problems identified: 1) Excesses or, and lack of control over, the system of civil litigation 2) inadequate attention given to the control of costs and delay and need to ensure equality between the parties 3) the complexity of the present system 4) the absence of any satisfactory judicial responsibility for the effective use of resources within the civil system. Woolf believes there is no alternative to a fundamental shift in the responisibility for the management of civil litigation from the litigants to the courts. This change would mean that litigants must accept that once they commence proceedings, they no longer have sole and unfettered control over the way in which the case will proceed. This will mean a radical change in culture for all concerned, and will place a greater responsibility on judges. However, much of the responsibility for making progress will remain on the parties themselves. We need to acknowledge that our system is not perfect and that there is a percentage of error. Right not, judges and the legal system seem to think that considerations of time and money should not be brought to bear on questions of justice. However, this is idealistic. If by slightly increasing the percentage of error, we can substantially reduce the percentage of cost, it is only the idealist who will revolt. Both the profession and the judiciary must take into account more than they do at present, questions of cost and time and the means of the parties. The new approach: 1) the parties to a dispute should be able to obtain information and advice to enable them to resolve that dispute in an economic, expeditious and practical manner, or if not possible, to conduct satisfactorily the appropriate litigation. 2) Parties should try whenever it is reasonable to settle before resorting to the courts, and if it not possible to settle before proceedings, to settle at the earliest stage of proceedings possible. 3) If there is an appropriate alternative dispute resolution mechanism which is capable of resolving the dispute more quickly and more cheaply than court proceedings, than parties should be encouraged to use it before they use the courts.

4) Prior to using the courts, and throughout the course of proceedings, the parties should be kept fully informed of the likely costs and consequences of the proceedings, and any alternative means of resolving the proceedings. 5) Proceedings should be conducted and disposed of in a manner, at a cost, and within a timescale which is appropriate to the nature of the issues involved and means of the parties. 6)When practical, proceedings should be disposed to summarily. 7) When practical and possible, evidence and facts should be agreed and the issues identified between the parties prior to the hearing. 8) Legal proceedings and trials should be subject to a pre-determined timetable, which should be known by the parties, and which should only be departed from for good reason. The length of the trial should also be predetermined and exceeded only for good reason. 9) When deciding whether or not to depart from the timetable, the courts should consider the effect of doing so upon the parties involved, and on other proceedings awaiting a hearing and the resources of the courts. 10) Only such discovery should take place, and only such evidence shoulf be before the courts, as is necessary for the just and appropriate disposal of the proceedings. 11) The courts procedural rules should be simple, clear and non-technical. 12) The court should be given the resources and judicial and administrative structure necessary to fulfil these aims. h) Excessive Delays p10 Almost all major trial courts in Australia have embraced the option of increased court control as a way to tackle excessive delays. Another mechanism which has been developed is the self-executing order. This is an order dismissing a claim or defence if a party fails to do something specific (eg answer the discovery notice) by a certain date. The self-executing order is nowadays only used when a party is in consistent breach of the rules and the courts patience has run out. i) Case Management Schemes p10 Under case management schemes, the courts aim to set realistic timetables for practitioners and themselves. Common features: 1) Aims above all to get a case prepared at a much earlier stage than it might have been in the old days, when courts did not try to push cases through along more or less pre-ordained timetables. The hope is that early preparation will result in early settlement, rather than the hugely wasteful settlement on the day of trial. Some case management proponents also hope for more settlements overall. These schemes abound with procedures for requiring the parties to explore settlement possibilities, by themselves, or with ADR. Anti-case management people feel that earlier preparation simply increases the cost of those cases which eventually are tried at court. Management proponents reply that statiscally, most cases settle, and so it is better to encourage settlement processes as much as possible. And for those cases which dont settle, proponents also say that clients are usually prepared to pay slightly more if their case can be tried much earlier. 2) Typically imposes a routine requirement on parties to exchange documents and information. This can extend to a requirement to give the opponents the outlines of a partys evidence and the documents required to establish certain facts. This means that the background or general rules governing pleadings and discovery are somewhat superseded, because the quantity and quality of information supplied will be such that formal discovery rules/highly stylised open ended pleadings will be made redundant. 3) Typically set up different tracks for different types of cases- from tracks which provide for very little court supervision, to special tracks offering high-level supervision for complex or urgent cases. 4) Disciplinary elements- the schemes all contain sanctions for breach, although judges are sympathetic to parties who genuinely try to stay on track. A case which is not adhering to its timetable will be brought before a judge/registrar for special orders designed to get it back on track, with a view to keeping the trial date at roughly the original date. Persistent or inexcusable breaches can result in a case being dismissed, or moved to a list of dormant cases, which is periodically culled. Another sanction is the courts reluctance to adjourn a case which has been set a specific trial date. This is an extreme sanction, as it risks one party not being sufficiently

prepared by the trial date, which will prejudice its chances. It is also difficult to appeal to higher courts a decision like this, as trial courts have great latitude in ordering their own timetables. j) NSW Civil Procedure Bill 2005 (hereafter CPB) - This Bill outlines its purpose and the purpose of the court rules: s56(1)- the just, quick and cheap resolution of the proceedings etc [Queensland v JL Holdings Pty Ltd] p12 Facts: JL Holdings sued Queenslad when its plans to build a theme park in that city were stymied by a change of government. During the progress of the case, the respondent sought leave to amend their defence (their pleading). However, the trial judge refused them leave on case management grounds. The new point (of changing plea) should have been noticed years ago. A new plea would result in trial date being postponed for at least another year, because of all the possibilities of other factual matters being placed in dispute etc. The respondents appealed. Held: Full Court upheld the TJs decision, but the High Court unanimously reversed the decision. Discussion: Both judgments stated the TJ could have ordered extra pre-trial procedures to be completed in time for the trial to commence as planned. Dawson, Gaudron and McHugh JJ: Case management is not an end in itself...the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant this aim. Kirby J: Must balance different considerations, but always keeping in mind that justice is the end. Look at 1) Explanation for late application, 2) Extent of any breach of directions and 3) Recognise the stress of litigation on parties Considerations for granting an indulgence: -that this is the only way that the true issues and real merits can be litigated; that the oversight is adequately explained; that it arose out of sudden or unexpected events; that the proposed amentment is important to the rights of the party; that the fault is of the partys legal representatives; that the oversight was wholly accidental; that it was the product of unavoidable human error; that it was a product of new legal minds applied to the case; that cost orders would rebalance competing claims to justice; that the hearing date is sufficiently in the future for the party to meet the amendment and take in the consequences of it. Considerations against: - no explanation for a late application; the extent to which the applicant is at fault; the strain which litigation may take for those involved; the proximity of the hearing, especially where it would cause disarray at the last minute to its presentation at trial; the period of time the case has already progressed, because the longer the time, the longer the party should have realised the point in issue; extent to which a new issue would give rise to a whole new case; whether or not the case has been assigned to a special list; repeated default on the part of a litigant. Justice does not necessarily mean that parties have multiple opportunities to plead and present their case. The court also has to responsibly use its scarce public resources, and must look at the impact which its orders have on litigants and the general public too. However, the judge must always retain that flexibility which is the hallmark of justice. k) Case Management Rules p15 Tasmania: Circular No 8 of 2000 See booklet for the example of case management guidelines. Draft Civil Procedure Bill 2005 See booklet

l) Costs Orders p18 - The biggest incentive to settle is the risk of losing. Another is the sheer expense of litigating, even for the winner. - s93- Cost orders are at the discretion of the courts. s94 of CPB holds that legal practitioners are liable for unecessary costs. - pt42.1 of the Uniform Civil Procedure Rules (hereafter UCPR) states that costs follow the event, meaning that the general rule is that the loser pays the winner his/her costs. However, there is usually a significant difference between the amount of costs the loser has to pay the winner, and the winning solicitors bill. Court ordered costs traditionally only covered two-thirds of the winners actual legal expenses. These days, these costs tend to only amount to one-third of the legal expenditure. This means there is still a large proportion of irrecoverable cost. Most jurisdictions still call court ordered costs party and party costs (general basis on which costs are ordered pt42.2) because they are assessed taxed on a very ungenerous scale known by that name. Costs therefore do not, in practice, cover all the winners legal costs, and are not intended to cover any of the litigants personal costs {eg lost time}either. An order for costs states who will get the costs, and on what basis, but not how much that person will get. The usual procedure to determine the quantum of costs is that the parties will agree between themselves on the amount of costs payable. If they are unable to agree, the winner will arrange for the costs to be taxed {assessed}. The first stage is that the winning party prepares a bill of costs, which is an itemised account of the costs to which the winner claims s/he is entitled. The second stage is that the costs will be taxed at an informal hearing before a taxing officer. The loser can challenge the amounts claimed, and if the order for costs was on a party-party basis, the winners will have to justify the items and the amount. Courts usually order costs on a party-party basis, but in an unusual case they may order that costs be paid more generously. The alternative bases are solicitor-client and indemnity. Costs on an indemnity basis means there will be almost a complete recovery of all costs expended. Recovery on a solicitor-client basis falls between party-party and indeminity bases. To recover on one of the higher bases, there must have been some special or unusual feature of the case eg. misconduct on the part of the losing party like obstructionism, delay or abuse of process. The orders for costs in such cases can be against the legal advisers or the party themselves, depending on circumstances. See [Cook v Pasciminco p21]. Costs orders can be made against barristers too [Levick] p 22. In class: 3 Bases of Costs- General Guidelines 1) Party/Party- normal costs where the loser pays the winner 2) Indemnity-if 1 party is naughty eg delay, the innocent party may be paid on this basis 3) Maximum- if loser made offer of compromise/Calderbank letter- winner pays loser (in UCPR this basis is also referred to as an indeminity basis). m) Other types of Cost Orders p23 There are some exceptions to the general rule that the loser pays the winners costs. In public interest cases, the loser may not have to pay costs. In cases where both parties have had a measure of success, an order may be made to apportion the costs, or the court might just refrain from making any cost orders. Where a plaintiff has sued two or more defendants and succeeds against some, but not all the defendants, the successful defendants may be entitled to their costs of the action. n) Payment into Court and Offers of Compromise p24 pt42.14- situation where plaintiff makes offer and D rejects it. Question: Offer of compromise usually works like this: the plaintiff is suing D, who makes a reasonable offer of compromise of $200 000. Plaintiff refuses offer and takes it to trial. At trial the plaintiff a) loses. Therefore, has to pay Ds costs regardless of offer of compromise.

b) wins less than $200 000. Therefore, D may pay the plaintiff his/her costs on a party-party basis up to the date of the offer of compromise. After this date, the plaintiff may have to pay Ds costs on an indemnity basis. c) wins more than $200 000. D must pay normal costs to plaintiff. pt 42.15- situation where defendant makes offer and P rejects it. So what about the reverse? eg. Plaintiff sues D, can the plaintiff reasonably offer to compromise for $200 000? as in, ask D to pay x amount to cease litigation? Yes, i think so, according to s42.14 of UCPR. So, what if plaintiff a) loses. Has to pay Ds costs regardless of offer of compromise. b) wins $200 000 or more? (In other words, D could have saved a lot of time if he/she had paid up earlier). D will pay Plaintiffs costs on party-party basis up till the time of offer, and then costs on an indemnity basis after that point. c) wins less than $200 000. D must pay normal costs to plaintiff. When considering Calderbank offers, and circumstances where A has turned down an offer by B, only to have a less favourable result at trial- it is necessary to look at the genuiness of the offer, whether it was realistic, the point of time at which it was made and that whether, in all the circumstances, it was such a reasonable offer as required the offeree to give careful consideration to it. If it was unreasonble for the offeree to reject the offer then there are strong grounds for the court ordering indemnity costs on the basis that the offeror made a fair and reasonable attempt to resolve the proceeding. p31. See class notes for details about Offers of Compromise, Calderbank letters and [Maitland Hospital].

Class 1.1
NSW Civil Procedure Bill 2005
s56 Overriding Purpose

s56(1)- The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. s56(3)- A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. s56(4)- A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). s56(5)- The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

s57 Case Management s57(1)- For the purpose of furthering the overriding purpose referred to in 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties s57(2)- This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

s58 Court to follow dictates of justice s59 Elimination of delay s60 Proportionality of Costs In any proceedings, the practices and procedures of the court should be implemented with the object or recolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. (A new provision stating that the costs to the parties should be proportional to the issues and complexity of the subject matter. This is basicaly to prevent exorbitant legal fees for cases where possible damages wont be great). s93 Courts powers as to costs s93(1)- Subject to rules of court and to this or any other Act: (a)- Costs are in the discretion of the court, and (b)- the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c)- the court may order that costs are to be awarded on a party/party basis or on a an indeminity basis. s94 Liability of legal practitioner for unecessary costs s94(1)- If unecessary costs are incurred, and it appears to the court that a legal practitioner is responsible for the incurring of those costs, the court may, after giving the legal practitioner a reasonable opportunity to be heard, do any one of more of the following: (a) it may, by order, disallow the costs in proceedings, or the costs for any step in the proceedings etc. (b) it may, by order, direct the legal practitioner to repay to the client costs that the client has been ordered to pay to any other person,

(c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party s94(2)- Without limiting subsection (1), a legal practitioner is responsible for the incurring of unecessary costs if proceedings cannot conveniently proceed, or can proceed only with the incurring of extra costs or with the inconvenience of the court or another party to the proceedings, because of the failure of the legal practitioner: (a) to attend in person or by a proper representative, or (b) to file any document that ought to have been filed, or (c) to deliver any document that ought to have been delivered for the use of the court, or (d) to be prepared with any proper evidence or account, or (e) to comply with any rules of court or any judgment, order, or direction of the court, or (f) otherwise to proceed.

NSW Uniform Civil Procedure Rules 2005

Pt 42 Costs pt42.1- Subject to this part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. pt42.2- Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on a party/party basis. pt42.14 (1)- This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer (2)- Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiffs costs in respect of the claim: (a) assessed on a party/party basis up to the time from which those costs are to be assessed on an idemnity basis under paragraph (b), and (b) assessed on an idemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the order was made on or after the first day of the trial as from 11am on the day following the day on which the offer was made. pt42.15 (1)- This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff , or less favourable to the plaintff, than the terms of the offer. (2)- Unless the court orders otherwise: (a) the plaintiff is entitled to an order against the defendant for the plaintiffs costs in respect of the claim, to be assessed on a party/party basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plainiff for the defendants costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the order was made on or after the first day of the trial as from 11am on the day following the day on which the offer was made.

Practice Note 120

- Practice Note 120 applies to the common law division of the Supreme Court of NSW. - Negligence and personal injury matters are dealt with under this division of the NSW Supreme Court, and Litigation 1 exams usually focus on negligence/personal injury. - Practice Note 120 is an example of case management, or Differential Case Managment (hereafter DCM), with the court being involved pre-trial and setting strict timetables. - DCM is used to avoid trial by ambush, by involving status conferences etc. The idea is to ensure that parties prepare earlier, better use of court resources and encouragement of early settlement. It also gets parties to think about alternative dispute resolution (hereafter ADR) at an early stage. - A minority view Practice Note 120 as actually causing greater cost, because of increased use of court time and more issues to think about. This is not the majority view.

Class 2. Alternative Dispute Resolution. 1) Introduction. p 33.

ADR is used to denote a variety of processes, other than litigation, by which parties may resolve disputes. The most familiar of these processes are mediation, conciliation and arbitration. The use of the word alternative suggests a litigation-centric view of dispute resolution, where litigation is seen as the norm and other methods are viewed as alternatives to that norm. However, this is inconsistent with reality. 2) Hillary Astor and Christine Chinkin: Dispute Resolution in Australia In western culture, litigation is perceived to be the dominant mode of dispute resolution. This is reflected in popular culture, literature, drama and art. In many non-western cultures, litigation is not viewed in the same way, and what westerners call ADR is generally the dominant method of dispute resolution in those cultures, with litigation being a regrettable last resort. Despite the cultural resonance of litigation in the west however, people have always used a variety of methods for managing their disputes. The ways in which ppl deal with grievances can be best described diagrammatically as a pyramid. - Apex of pyramid- litigation - court ordered processes- ADR - industry/workplace grievance mechanisms, ombudsmen etc - self-help eg physical retaliation, taking back items - negotiation and seeking advice - exit and avoidance- leaving the source of dispute - endurance- putting up with dispute as long as the costs of resolving it remain higher - lumping it- deciding not to pursue matter at all - situations where ppl dont know they have been legally wronged in the first place Even in commercial situations, legal advice is sought less often than might be imagined. In contractual agreements, most businesses only outline their primary obligations to each other, without providing for any contingencies, the consequences for non-performance, let alone negotiation procedures for breach. When problems do occur, most business ppl dont resort to the law but simply re-negotiate. Detailed contractual planning only occurred when the subject matter of the contract involved a major expense, and when the other party was not a regular and known trading partner. Many ppl who have legal probs for which there is a remedy do not seek legal advice or pursue any formal legal remedy. Of those surveyed who had a justiciable prob, 5% did nothing; 35% tried to resolve the prob without help; 60% tried to resolve the prob with advice and help from outside advisors. Reasons for not seeking help included inaccessibility of good quality legal advice; uncertainty about where to go for advice; and a widespread feeling that legal advice was not an option because of costs. Those who sought help used a wide range of sources: 25% went to a lawyer; 21% went to a citizens advice centre. Other sources of advice were local councils, police, trade unions and staff associations. Only 20% of non-trivial justiciable probs experienced by private individuals resulted in any kind of legal proceedings. Divorce and separation most commonly involved legal proceedings- in two out of three cases. Disputes involving ownership of residential property involved legal proceedings in one out of three cases, and disputes over benefits and schooling of children involved legal proceedings in two out of five cases. Other types of disputes involving legal proceedings included: employment (one in five), landlord and tenant (one in ten), consumer (one in twenty), and neighbour (one in fifty). If legal proceedings are so rare, why do ppl initiate them at all? For large corporations it may be a negotiating tactic, a threat or a means of moving the dispute forward. For inexperienced litigants, it may be an act of desperation. The great majority of court cases are settled before trial. 5 % of family law cases require judgments, as opposed to 35% of Federal Court cases and 34% of Administrative Appeals Tribunal cases. One study of the Family Ct showed that only 4% of unresolved property disputes went to a contested hearing, with the remaining 96% being resolved out of court with the assistance of lawyers. Ppl have different aims when they take action to resolve their disputes. One study shows that 51% of ppl wanted money or property. Others wanted separation or divorce to sort out related issues (8%), while some sought a change in behaviour (7%). A few wanted to send a warning, to prove innocence, to prevent harm to others or to recieve an apology. Apology and prevention of harm appeared most frequently as the objective for

those with employment problems, though this was not the same aim for those with divorce issues, or money problems. In 57% of neighbourhood problems the aim was a change in behaviour. 3) Definitions of ADR Processes: Dispute Resolution Terms - By NADRAC 2003 Facilitative dispute resolution processes- processes where a dispute resolution practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. Examples of facilitative processes are mediation, facilitation and facilitated negotiation. Advisory dispute resolution processes- processes in which a dispute resolution practitioner considers and appraises the dispute and proveds advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these might be achieved. Advisory processes include expert appraisal, cases appraisal, case presentation, mini-trial and early neutral evaluation. Determinative dispute resolution processes- are process in which a dispute resolution practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Examples of determinative dispute resolution processes are arbitration,expert determination and private judging.

All the specific dispute resolution processes defined below can fit into one of these three categories (facilitative, advisory and determinative) and, in the case of hybrid or combined processes, may fit into one or more category. ADR is an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. See also PDR. Arbitration is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. Case appraisal is a process in which a dispute resolution practitioner (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved. Case presentation (or Mini-trial) is a process in which the parties present their evidence and arguments to a dispute resolution practitioner who provides advice on the facts of the dispute, and, in some cases, on possible and desirable outcomes and the means whereby these may be achieved. See also mini-trial. Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration). Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine

the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. Note: there are wide variations in meanings for conciliation, which may be used to refer to a range of processes used to resolve complaints and disputes including: -Informal discussions held between the parties and an external agency in an endeavour to avoid, resolve or manage a dispute -Combined processes in which, for example, an impartial party facilitates discussion between the parties, provides advice on the substance of the dispute, makes proposals for settlement or actively contributes to the terms of any agreement. Dispute resolution refers to all processes that are used to resolve disputes, whether within or outside court proceedings. Dispute resolution processes may be facilitative, advisory or determinative Dispute resolution practitioner is an impartial person who assists those in dispute to resolve the issues between them. A practitioner may work privately as a statutory officer or through engagement by a dispute resolution organisation. A sole practitioner is a sole trader or other individual operating alone and directly engaged by clients. Early neutral evaluation is a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a dispute resolution practitioner. That practitioner makes a determination on the key issues in dispute, and most effective means of resolving the dispute without determining the facts of the dispute. Evaluative mediation is a term used to describe processes where a mediator, as well as facilitating negotiations between the parties, also evaluates the merits of the dispute and provides suggestions as to its resolution. (See also combined processes).Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary. Expert appraisal is a process in which a dispute resolution practitioner, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute. The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved. Expert determination is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert) and who makes a determination. Fact finding is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the investigator) who makes a determination as to the facts of the dispute, but who does not make any finding or recommendations as to outcomes for resolution. See also investigation. Fast-track arbitration is a process in which the parties to a dispute present, at an early stage in an attempt to resolve the dispute, arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination on the most important and most immediate issues in dispute. Indigenous dispute resolution refers to wide range of processes used to resolve dispute involving Indigenous people, including the various processes described in this glossary. Other examples include elder arbitration, agreement-making and consensus-building. In the Australian context the term Indigenous (capital I) refers specifically to the Aboriginal and Torres Strait Islander peoples.

Industry dispute resolution: Industry specific dispute resolution schemes deal with complaints and disputes between consumers (including some small business consumers) and a particular industry. Schemes are usually funded by the industry but governed by an equal number of industry and consumer representatives. Some schemes are required to meet standards established by ASIC. If the industry member and consumer do not reach agreement, most schemes have the power to make a determination. The determination is binding on the industry member, but not the consumer who can choose to accept or reject the determination. Depending on the scheme, the power to make the determination lies with an Ombudsman, panel or referee. Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. Mini-trial is a process in which the parties present arguments and evidence to a dispute resolution practitioner who provides advice as to the facts of the dispute, and advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved. See also case presentation. Ombudsman (or Ombud) is a person who functions as a defender of the people in their dealings with government. In Australia, there is a Commonwealth Ombudsman as well as state and territory ombudsmen. In addition, a number of industry ombudsmen have been appointed, whose responsibility it is to protect citizens interests in their dealings with a variety of service providers, especially in industries previously owned or regulated by governments, for example telecommunications, energy, banking and insurance. On-line dispute resolution, ODR, eADR, cyber-ADR are processes where a substantial part, or all, of the communication in the dispute resolution process takes place electronically, especially via e-mail. See also automated dispute resolution processes. Partnering involves the development of a charter based on the parties need to act in good faith and with fair dealing with one another. The partnering process focuses on the definition of mutual bjectives, improved communication, the identification of likely problems and development of formal problem-solving and dispute resolution strategies. PDR (Primary Dispute Resolution) is a term used in particular jurisdictions to describe dispute resolution processes which take place prior to, or instead of, determination by a court. The Family Law Act 1972 (Cth) encourages people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made (section 14). The Federal Magistrates Act 1999 defines primary dispute resolution processes as procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes: (a) counselling; and (b) mediation; and (c) arbitration; and (d) neutral evaluation; and (e) case appraisal; and (f) conciliation (section 21). See also ADR.

Senior executive appraisal is a form of case appraisal presentation or mini-trial where the facts of a case are presented to senior executives of the organisations in dispute. Shuttle mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement without being brought together. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. The mediator may move between parties who are located in different rooms, or meet different parties at different times for all or part of the process.

4) Hybrid Processes Mini-trial- also known as senior executive appraisal. It has adversarial elements because it provedes for party representatives to present the theories of their respective cases, much as might be done in a formal court setting. There are also inquisitorial elements however, because the panel to whom the parties make their case presentations has the power to inquire into the matter independently and with the assistance of an impartial third party. After the senior executives have heard the presentations they often negotiate among themselves. The impartial third party can be a facilitator of these negotiations and in this capacity behaves like a mediator. If those negotiations fail however, the thrid party can switch hats and offer an opinion on the likely outcome of the case if it were to proceed to trial. In that capacity, the third party will act in a role akin to expert appraisal or early neutral evaluation. Early neutral evaluation- its purpose is to give the parties information that can form the basis for further negotiation, eg. sort out some issues before proceeding to mediation. A question raised: should the mediator also be the neutral evaluator? One danger of such an approach is that the mediator might compromise his/her impartiality by acting as an evaluator before facilitating in mediation. Mediation and arbitration med/arb- In its most common form, mediation proceeds and at some point, parties agree that mediation be replaced with arbitration. Popular in Asia, US and Canada, but less so in Aus. An increasing number of variations on the med/arb model are emerging: mediate first and if mediation fails, arbitrate; start arbitration proceedings and allow for mediation at some point during the arbitration; mediate some issues and arbitrate others; mediate, then arbitrate some unresolved issues, then return to mediation; mediate, if unsuccessful ask for an advisory opinion by the mediator which is binding as an award unless either party vetoes the opinion within a limited period of time. Another med/arb variation growing in popularity is mediation, if unsuccessful, followed by a final offer by each side, coupled with limited argument, following which the mediator turned arbitrator must choose one or other of the offers. Same problem arises here as in early neutral evaluation- should the mediator also be the arbitrator? Mediator, in course of mediation, is told confidential things by each party. But if that same mediator also abitrates, could the confidentialities told to the mediator influence him/her? The problem is that this could happen without the other party having had any opportunity to answer the opponents case, an opportunity which is at the cornerstone of natural justice. Expert determination- Is increasingly used instead of litigation or arbitration. Seems to be most used by those involved in commercial disputes. Proponents of this process see it as offering the prospect of less formal procedures (often with no lawyers involved), and with substantial savings in time and cost. It also avoids the rigours of the application of rules of evidence and procedure and offers a finality which avoids

delays, potential re-hearings and appeals, and is particularly useful where an expert knowledge of the subject is reuired or where the parties may have a continuing relationship. Case Appraisal- The case appraiser must decide on a procedure to be used in appraising the case (at his/her discretion), and must aim to finish the case appraisal as speedily as possible. In special circumstances, s/he may receive evidence and examine witnesses. This process is similar to mediation in that it is not binding on the parties, but differs from mediation in that it goes beyond facilitation to evaluation of the case. The idea is to offer a view as to the possible/probably outcome of the case if it went to court.

5) Mediation. - Facilitative and Evaluative Models There is a degree of tension between these two models of mediation. Mediation is described as a process in which an impartial third person facilitates communication between the parties with a view to assisting them to reach a resolution of their dispute. NADRAC states that mediators have no advisory or determinative role in regard to the content of the dispute or outcome, but may advise on or determine the process of mediation whereby resolution is attempted. However, evaluative mediation involves evaluating the merits of the case and providing suggestions regarding its resolution. [Tapoohi v Lewenberg (no.2)] Facts: Tapoohi sued Lewenberg over properties which were held by the family estate. Shortly after litigation began, the two parties agreed to mediation (this was not court-ordered mediation). The mediation lasted all day, after which an agreement was reached. Tapoohi signed, but later sued Lewenberg and others (including the mediator) and sought to have the agreement set aside. The mediator then sought an application to have the claim against him summarily dismissed. The judge refused. What happened: During mediation, Tapoohis lawyers were particularly concerned with any tax issues which might arise from a settlement. Tapoohis side put forward a proposal, but stated that it was not binding yet, since further tax advice needed to be sought. An agreement in principle was reached, and one of Lewenbergs side went home. Tapoohis side were considering calling it a night also. But then the mediator intervened saying: No we are going to do it now. We are signing up tonight as that is the way that I do itIt is in the interests of both parties to sign up tonight. Tapoohis side took this as a direction from the mediator, but protested. The mediator compelled them to stay, and then proceeded to dictate the tems of the settlement, ignoring input from Tapoohis side. Tapoohis QC then left the mediation, and the remaining solicitors looked over the agreement briefly. The settlement did not contain the express term that the agreement was subject to further taxation advice, and none of Tapoohis side realised it was missing. It was later construed as a binding agreement. Issues: The conference had been called a mediation, but it was more like a very directed settlement conference. It certainly was not facilitative mediation, and arguably went beyond the boundaries set by the evaluative mediation model. This case is also instructive on the issue of mediator immunity. CPB s33 gives immunity to mediators when the mediation is ordered by the court. However, whether this immunity extends to mediators in private mediation is yet to be decided. The fact that in [Tapoohi] the judge dismissed the application for summary judgment indicates that immunity for private mediators is a contestable issue. 6) Court Ordered Mediation Courts may order mediation, according to the CPR s26(1), and s26(2) allows the mediator to be appointed by the court. Parties must participate in the mediation in good faith (s27), with s33 allowing parties to be penalised if they do not comply with the mediators directions. Most dialogue/documents are under privilege, with some exceptions- s30. Parties also have a right to private mediation- s34. When do matters go to mediation?

1) By agreement of parties 2) When court orders mediation (even without parties consent) 3) Pursuant to a contractual clause. [Australian Competition and Consumer Commission v Lux Pty Ltd] Facts: Lux sold a product to an intellectually disabled person who may have been incapable of making an informed decision. The judge ordered mediation, but ACCC objected. Issues: ACCC submitted 3 arguments against mediation: 1) Because their client was intellectually disabled and would be disadvantaged in mediation 2) Because the ACCCs function is to enforce the Trade Practices Act, and that this cannot be done under mediation but only by the judicial process. Also the public interest is best served by allowing the Court to exercise its judicial functions. 3) Because mediation is inappropriate for matters involving many disputed facts having negligible prospects of a mediated outcome. Held: 1) Mediation would not disadvantage the intellectually disabled. 2) There is a competing public and curial interest in the mediation process, and there is no reason why the public interest objective cannot be met in the give and take or true mediation 3) Mediation may be productive even if a party is initially a reluctant participant.. The judge also felt that mediation might held resolve one or more outstanding issues, even if it did not solve the whole dispute. [ACCC v Cadbury Schweppes] Held: Judge ordered mediation before the defence had even been filed. The parties wanted to have the defence filed first but he refused saying You can go and make love before you make warnot the two simultaneously; it doesnt work. Judge maintained mediation was still useful in this case. [Singh v Singh] Facts: Parties were former friends who had a serious falling out. The defendants asked the Court for mediation, but the plaintiff refused. P felt that the D was trying to avoid being cross-examined and trying to drain Ps limited resources. Asked that if Court decided to order mediation anyway, ask that the mediator be an ex-judge. Held: That mediation might still be successful even if one of the parties was reluctant. Also, there were many good and experienced mediators who would not be as expensive as ex-Judges. [Azmin] Held: It has been shown through experience that mediation, even in major commercial litigation, can be successful. The parties, from time to time, have found unexpected ways of finding a compromise. Mediation compels the parties to listen to each other and has a cathartic effect. [Capolingua]

Held: Acting in good faith means taking a constructive and cooperative approach. A parties behaviour is only relevant to costs if they adopt an uncooperative attitude in an attempt to narrow the issues. [Freeman v NSW Rural Assistance Authority] Held: An undertaking to participate in good faith involves a willingness of the parties to consider options for resolution, but one cant draw inferences of lack of good faith simply because parties adopt strong positions at the outset and show reluctance to move in the direction of compromise. These cases indicate that in Aus there is a clear judicial preference in favour of mediation orders even if one or more parties objects to the order. Not only Courts, but Tribunals also may have provisions to allow for the making of mediation orders. Courts do not order parties to reach a resolution when mediation is ordered- the parties are only compelled to attend and particpate in good faith. 7) Arbitration Arbitration is an adversarial process where an impartial third party (which could be a panel or individual) makes a binding determination after hearing evidence presented by the parties. It is the ADR process most similar to litigation, but is more flexible. This is because there is: the capacity to arbitrate without pleadings, more restricted discovery, fewer rules of evidence, and the capacity of the arbitrator to adopt an inquisatorial process. Arbitration is found in commercial and construction disputes. When is a matter referred to arbitration? 1) Parties agree (dealt with under Commercial Arbitration Act) 2) Pursuant to some international agreement (dealt with under International Arbitration Act) 3) Court Ordered (Pt 5 of CPB) Arbitrators are usually solicitors or barristers or judicial officers- it is a short form of litigation with legal authority. Arbitrators have the jurisdiction of the Court by which the proceedings were referred (s37(1)), and arbitration can be ordered without the consent of parties. s39 holds that the arbitrators decision is a judgment of the Court, with no right to appeal on merits (s41), though a party may apply for rehearing (s41-3).

8) Negotiation Negotiation does not involve an impartial third party, but are often conducted by the parties themselves, or by their agents. Negotiation is usually an element in most ADR processes, including the hybrid processes. It can also be understood as a stand-alone process. 9) Other Dispute Resolution Processes. Ombudsmen, eg - services provided by the Banking and Financial Services Ombudsman Limited (inquisatorial dispute resolution processes)

- Energy and Water Ombudsman (allows for direct communication, negotiation and arbitration) Similar dispute resolution schemes can be found in areas of insurance, construction, telecommunications and aged care. There are also community based dispute resolution services eg. Dispute Settlement Centre Victoria offers mediation and advisory services. Community Justice Centres in NSW proved similar free services for community disputes.

CLASS 2.2
NSW Civil Procedure Bill 2005
s26 Referral by court

(1)- If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned. (2)- The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court, who may (but need not) be a listed mediator. s27 Duty of parties to participate - It is the duty of each party to proceedings that have been referred for mediation to particpate, in good faith, in the mediation. s28 Costs of Mediation - The costs of mediation, including the costs payable to the mediator, are payable: (a) if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or (b) in any other cases, by the parties in such proportions as they may agree among themselves. s29 Agreements and arrangements arising from mediation sessions (1)- The court may make orders to give effect to any agreement or arrangement arising out of a mediation session. (2)- In any proceedings under this section, any party may call evidence, including evidence from the mediator and any other person engaged in the mediation, as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement. (3)- This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out a mediation session, in relation to the matters the subject of a mediation session. s30 Privilege (1)- In this section, mediation session includes any steps taken in the course of making arrangements for the session or in the course of the followup of a session. (2)- The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to: (a) a mediation session, or (b) a document of other material sent to or produced to a mediator, or sent to or produced at the court or the registry of the court, for the purpose of enabling a mediation session to be arranged. (4)- Subject to section 29(2), evidence of anything said or of any admission made in a mediation session, or any copy of such document, is not admissable in evidence in any proceedings before any court or other body. (5)- A document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such document, is not admissable in evidence in any proceedings before any court or other body. (6)- Subsections (4) and (5) do not apply with respect to any evidence or document: (a) if the persons in attendance at, or identified during, the mediation session and, in the case of a document, all persons specified in the document, consent to the admission of the evidence or document, or (b) in proceedings commenced with respect to any act or omission in connection with which a disclosure has been made as referred to in section 31(c). s31 Secrecy s32 Directions by mediator

(1)- Subject to the uniform rules and any relevant practice notes, a mediator may, by order, give directions with respect to the conduct of the mediation. (2)- Without limiting subsection (1), an order under this section: (a) may direct the parties to the mediation as to the time within which specified steps in the mediation must be completed, and (b) may award costs against a party for failure to complete specified steps within the time allowed. s33 Protection from liability for listed mediator - A listed mediator to whom the court refers proceedings has, in the exercise of his or her functions as a mediator in relation to those proceedings, the same protection and immunity as a judicial officer of the court has in the exercise of his or her functions as a judicial officer. s34 Mediation otherwise that under this Part - This Part does not prevent: (a) the parties to proceedings from agreeing to and arranging for mediation of any matter otherwise than as referred to in this Part. s36 Appointment to office as arbitrator s37 Jurisdiction of Arbitrator (1)- The jurisdiction conferred on an arbitrator by this Part in relation to referred proceedings is part of the jurisdiction of the court by which the proceedings were referred. (4)- The functions conferred on an arbitrator may be exercised only: (a) for the purpose of determining the issues in dispute in referred proceedings, and (b) for the purpose of making an award in referred proceedings, and (c) for related purposes. s38 Referral to Arbitration (1)- The court may order proceedings before it: (a) in respect of a claim for the recovery of damages or other money, or (b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money, be referred for determination by an arbitrator. s39 Determination by arbitrator (1)- The issues in dispute in referred proceedings are to be determined by the arbitrator on the evidence adduced before the arbitrator. (4)- An arbitrator may not make a determination that could not have been made had the proceedings been heard and determined by the referring court. (5)- Despite subsection (4), an award does not fail to have full effect, and may not be called into question, by reason only that the amount awarded exceeds the amount claimed in the proceedings to which the award relates. s40 Award taken to be judgment of court - Subject to section 41 and Division 3, an award is final and conclusive, and is taken to be the judgement of the referring court: (a) if it is expressed to be made by consent of all the parties, on the date on which it is filed in the referring court, or (b) in any other case, at the expiry of 28 days after it is sent to all of the parties.

s41 Judicial supervision of arbitrator (1)- No relief lies: in relation to proceedings under this Act on referred proceedings [no appeal on merits, no rights of appeal to appellate court] (2)- Subsection (1) does not apply if the relief is sought on the ground of a lack of jurisdiction or a denial or natural justice. s42 Application for rehearing (1)- A person aggrieved by an award may apply to the referring court for a rehearing of proceedings concerned. (2)- The application may (but need not) request that the rehearing be a full rehearing or limited hearing. (3)- The award is suspended from the time the application is made until an order for rehearing is made. s43 Order for rehearing (1)- The referring court must order a rehearing of proceedings the subject of an award if an application for rehearing is made before the award takes effect. (2)- An order for rehearing may not be made unless the amount claimed in the proceedings, or the value of the property to which the proceedings relate, exceeds the jurisdictional limit of the Small Claims Division of a Local Court (3)- An order for rehearing need not be made if it appears to the court that the applicant failed to attend a hearing before an arbitrator without good reason. pt44 Rehearing pt 45 Discontinuance of rehearing pt 46 Costs of rehearing pt 47 Subpoena at rehearing against arbitrator

NSW Uniform Civil Procedure Rules 2005

Pt 42.12 Rehearings under Division 3 of Part 5 of Civil Procedure Act 2005 (1)- In this rule: party A means the party on whose application a rehearing has been conducted party B means any party to a rehearing other than party A. rehearing means a rehearing conducted under Division 3 of Part 5 of the Civil Procedure Act 2005 (2)- If the determination of the court is not substantially more favourable to party A than is the determination of the arbitrator, the court: (a) may not order party B to pay costs incurred by party A by reason of the rehearing, and (b) must order party A to pay the costs incurred by party B by reason of the rehearing. (3)- Despite subrule (2), the court may certify that the special circumstances of the case require the court: (a) to make an order referred to in subrule (2)(a), in ;which case the court may make that order, or (b) to refrain from making an order referred to in subrule (2)(b), in which case the court may refrain from making that order.

Practice Note 120

Para 8 - It is expected that the parties legal representatives will have discussed the case before the initial status conference and will have: (e) discussed the possibility of settling the dispute by Alternative Dispute Resolution (ADR).

Para 11- All parties attend a status conference to conduct an in-depth review of the case. The orders and directions made at a status conference are designed to resolve the case as quickly as possible. The tasks at a status conference include, but are not limited to: (e) considering whether Alternative Dispute Resolution is suitable. Para 13 (1)- At any status conference, the Court may consider whether the proceedings are suitable for ADR. (3)- If the matter appears to the Court to be appropriate for resolution by mediation, neutral evaluation or abitration, the Court will refer the proceedings for mediation, neutral evaluation or arbitration. (5)- Where proceedings involve a claim for damages in respect of personal injuries or in respect of the death of any person, the court will, at the status conference, refer the proceedings for arbitration by a single arbitrator, unless it appears to the court that there is good reason why the matter should not be the subject of arbitration. (6)- Where the court refers proceedings for arbitration, the court may give directions for the conduct of the arbitration.

Class 3.
A. Early Moves: Service, Process and Interim Measures 1) Is it worth suing? - Need to advise client about litigation and its disadvantages and risks. - Very stressful, risk of losing, delays, expense, relationship breakdown with defendant, winning might still involve costs (eg. party-party).

2) Next Moves Traditional textbooks always remind plaintiffs solicitors to write a letter of demand (textbook calls it a letter before action) to the other side before commencing the case. This letter sets out the clients case and demands money, stipulating that if the money is not paid within a certain date, litigation will commence. If the plaintiff goes on to win the case, the cost of this letter is recoverable. However, if the plaintiff fails to write this letter, P may be penalised in costs, if it later emerges that the litigation was unncessary. 3) Where should the case be brought? In NSW, the maximum amount the Local Courts can award is $60 000, while the District Courts can award up to $750 000. The Supreme Court can award anything above or below that. Plaintiffs would want to go to the highest Court possible, while defendants would want the opposite. However, the higher the court, the higher the risk, because penalties are incurred if your client ends up winning less that half of the maximum award of the court below. (Therefore, you would be penalised in the Supreme Court if less than $375 000 was awarded, for example). Additionally, there are greater costs in the higher courts. 4) Cross Vesting Schemes The Jurisdiction of Courts Cross-Vesting Act (Cth) is relevant here, as is the State legislation. The Federal Court, the Family Court, the state and territory Supreme Courts and the Family Court of WA are all part of this cross-vesting scheme. This scheme arose in the 1970s because of the growth in federal legislation and the foundation of the federal courts. There were problems with split jurisdiction (where litigants could not have all the issues adjudicated in the one court), the perception that the status of the Supreme Courts was being eroded, and the concern that litigants were forum shopping between State and Federal Courts. So the scheme came into being. Firstly, it invested each court in the scheme with the civil jurisdiction of the other courts. That is, it allowed cases to be started in courts which formerly lacked jurisdiction. Secondly, it allowed cases to be transferred to more appropriate courts within the scheme, if necessary. The constitutional validity of the scheme was challenged, and the High Court held that the cross-vesting scheme was invalid to the extent that it gave state jurisdiction to federal courts. This rogue legislation was severed, leaving the cross-vesting of state jurisdiction among state courts, and allowing the transfer of proceedings between courts participating in the scheme. Section 5 of the Act deals with the transfer of proceedings. The factors relevant to the exercise of the discretion are: whether there are related proceedings in another court; whether the chosen court would have had jurisdiction but for the cross-vesting scheme; whether the interpretaion of a Cth law or state law of another jurisdiction is in issue; and whether the transfer would be in the interests of justice. [Bankinvest AG v Seabrook] Held: Described the decision to transfer the case as a nuts and bolts management decision as to which court, in the interests of justice, is the more appropriate to hear and determine the substantive dispute. The [Bankinvest] approach is the preferred approach in Aus. [BHP Billiton Ltd v Schultz] Issues: There was a confusion over whether to use the [Bankinvest] approach or the approach taken in cases where an application is made for a stay of proceedings based on forum non conveniens- the [Voth] test (the clearly inappropriate forum test). Held: It is not necessary that it should appear that the first court is a clearly inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

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, though the interests of the respective partieswill arise for consideration. The justice referred to in s5 is not disembodied, or divorced from practical reality. [BHP] endorses [Bankinvest] and rejects the application of the [Voth] test, including the presumption in favour of the plaintiffs choice of forum, to questions of cross-vesting and its interests of justice provision. 5) Originating Process This is the document which commences litigation. NSW has two types of originating process- the statement of claim and the (originating) summons. The summons simply summons the defendant to Court on a certain date, but the statement of claim sets out the plaintiffs pleadings. Once the originating process is filed in court, it is valid for service for a prescribed period of time (6 months- pt6.2(4)). If the originating process is not served within that time, it becomes stale. However, the time for service can be extended. In NSW, the Courts do this by first extending the time for making the application, and then granting the application. The decision whether to renew or not is a matter of discretion. Factors considered include: - balance of convenience between the parties - whether renewal/failure to renew would cause prejudice - any difficulties of plaintiff in effecting service - reasons why service was not effected within the original period of validity. In this course, we are only interested in proceedings begun by a statement of claim, outlined in UCPR pt6.3. When a statement of claim is drawn up, what do you do with it? You file it, take it to the Court registry and get a court stamp on it. You make a few copies (one for yourself, one for your client etc), and the court will stamp it and keep a copy of it. The next thing you do is serve it. 6) Service of Originating Process - The general rule is that no step can be taken against Ds until they have been served with the originating process. However, all jurisdictions are flexible and cater for ex parte applications. - This general rule applies to all cases in which the court is exercising an in personam jurisdiction (all civil cases excepting those involving status, or a claim to property or a ship). Service is regarded as being necessary and sufficient to found a courts jurisdiction (assuming there isnt a statutory restriction as to subject matter, area etc). There fore, a court has no jurisdiction unless the D has been served in one of the various ways, or unless the court exercises its powers under the rules to order that the defendant be taken to have been served. - Once the defendant has been served, the court has jurisdiction (no matter how inappropriate it may be)- the transient rule of jurisdiction. This rule can be manipulated to invest the courts with jurisdiction over cases where the parties contact with state is merely transient (eg. Two canadian tourists to NSW sue each other in contract, where case has nothing to do with Aus). A court may decline to proceed with a case if it is pending elsewhere (and then refer it to another jurisdiction), or if it is an inappropriate forum- this is a matter of discretion.

7) Personal Service Once D is properly served, the case can proceed (for discussion of the requirements of a statement of claim, see Class 6- Pleadings). - On the Ps statement of claim, the P must put the address for address, and if s/he is represented, put their solicitors address and the solicitors DX number (optional). - Once D is served, they may enter an appearance (send a document back to the P), which must stipulate Ds address for service, so that Ps future documents to D can be sent to D.

Generally, documents served may be served to the opposing sides solicitors, and there are many ways to serve docs- fax, mail etc (pt10.5 of UCPR). However, originating process is usually served to the D personally. In NSW, it is a requirement that the originating process be served personally, because it is such an important document- pt10.19(2)(a). See pt10.20 on methods of personally serving a document. The general approach to personal service is that it will be effected by leaving a copy of the document with the person to be served. [Ainsworth] Facts: Statement of Claim held out to D, but Ds friend took it before D got it. The person serving the document did not explain what the nature of the documents were. D and his friend walked away, and D was overheard saying to his friend wed better have a look at these. Issues: Were the documents personally served on D? According to the Supreme Ct rules at the time (identical provisions hold today), personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the persons presence and telling the person the nature of the document. Held: Two1) Was the document left with the D? If not, proceed to alternative method of service 2) Did D accept the document? If not, proceed to alternative method of service Answers 1) A document may be left with the person to be served, even if the person does not actually take the document into his physical possession. Leaving a document with a person does not mean that D must accept it, only that he must not refuse it. Accordingly, where a person accompanying a party took the document although it was tendered to the party and the party was thereafter seen to be reading the document, the document had been left with the party so as to achieve personal service. 2) Only a refusal of the document would equal the person not accepting the document. Only in this case is it necessary to explain the nature of the document. [Rogerson] Facts: The document was given to one of Ds staff, who took it into Ds office. She handed it to him and he held the document for about 10 seconds, long enough to realise what was inside. D then handed it back to her, telling her to send it back. Held: Still constitutes personal service if a staff member accepted on behalf of D. [Elkateb] Held: The requirement to explain the nature of the document is not very demanding- the explanation need not be exhaustive eg. this is a statement of claim is sufficient. DISREGARD the judgment in [Elkateb] where it states an explanation is necessary only if the nature of the document is not clear on its fact- this has been OVERRULED by statute. Service on Ds lawyers - Service on Ds lawyers is allowed if the lawyer has specific instructions to accept it. The instructions to accept must relate to the specific case. You may serve on a solicitor if s/he makes a note on a copy of the document to say they are accepting the service. Once the D has got the statement of claim, they will serve a notice of appearance and use their lawyers address for future documents. [Ricegrowers] Held: The Ds solicitors on the record in one case are not required to accept service for the same D in another case.

8) Substituted Service A court may allow substituted service, eg. to Ds wife or children. Service in accordance with an order for substituted service is taken to be sufficient service. It it not personal service (if that is what it is replacing) but it is a sufficient alternative. P must prove two things to get a court order for substituted service. 1) That service by the prescribed method is too difficult eg. if D is hiding 2) That the substituted method will stand a reasonable chance of bringing the document to Ds attention In cases where service is urgent, this test is generally less demanding. 1) Difficulty: [Amos v Small] Held: A summons had to be served on 19 Ds in 24 hours. Courts allowed substituted service. Service on the Ds solicitors was allowed in order to save time. [Conan Doyles] Held: Service would have taken 6 months and the sale (the issue in proceedings) would have concluded. Service on Ds solicitor was allowed to save time. However, if there is no urgency, the test is more strict. [Munkarra] Held: No urgency in this case, therefore, incomplete searches of official registers (electoral registers, phone books etc) was not enough to show that regular service was impracticable. [Ricegrowers] Held: In the absence of urgency, it is not sufficient proof of impracticability that it will take 3 months to effect personal service. 2) Reasonable chance eg. must show that D has contact with relative on whom you want to serve substitutionally. 9) What happens if you dont serve the document properly? 1) If its an orginating process which has been filed in court, it will be valid for 6 months from that date, therefore it can be served again (pt6.2(4)(a)of UCPR). If 6 months is up, originating process may be filed in court again and served again- pt6.2(5) 2) The Court may accept it (pt10.14(2), (3) and (4)), if certain steps were taken. 3) Service may be declared valid if D files an appearance- shows they got the Statement of Claim. 10) Service beyond Jurisdiction but within Australia The relevant statute here is the Service and Execution of Process Act 1992 (Cth). Originating process may be served under this Act throughout Australia in civil proceedings, without leave or special indorsements. At least 21 days must be allowed for the D to file an appearance. The Ds address for service need not be local, and the rules as to service are generally those of the place of issue. The D can apply for an order staying the matter on the ground that another Australian Court is the appropriate court a term which is given a wide, non-exhaustive definition- see 3.1 11) Service Overseas pt11.2- Service overseas is possible for matters in Schedule 3, without leave of the Court. pt11.4- If D does not enter a notice of appearance, P needs leave of Ct to continue. pt11.6- Local rules as to service will apply (rules of country that in which D is served)

pt11.7- the power to set aside an originating process on grounds that Ct is inappropriate forum pt11.8- Service in cross-vested matters. 12) Appearance and Objections Once D has SOC, D must file a notice of appearance and a defence. The appearance is a court form stating the lawyers name and address for serving docs. After it is filled in, it is filed and stamped at court and served to the other side. pt6.8- a D may enter an appearance by filing a notice of appearance pt6.9- You have 28 days to file NOA after receiving a statement of claim. If trying to set aside the originating process under pt12.11, but it is refused, you have 7 days after Ct ruling to file NOA. There are no longer conditional appearances in NSW. B. Orders preserving property, evidence or assets generally Court now takes a role very early in proceedings, even before the SOC- this was intially quite controversial, seen as very interventionist These orders are pretty common and accepted today. 1) Interim Orders to preserve property Court can give orders to preserve property which is the subject matter of the dispute (NOT evidence). Court can prevent, for example, investment property from being sold. pt25.3 is designed to protect property with competing claims. AP orders can be made before, during and even after trial [Distributori Automatici]. 2) Anton Piller Orders This is an order to protect evidence. It gives the Ct the power to make ex parte orders for the seizure of property if it considers these are strong grounds for thinking that the property may be removed or destroyed. [Anton Piller] This is an order that you can inspect someones property with their permission. It is not a search warrant in disguise. What is the difference? AP order simply requests the occupier if you may enter their premises, and if no permission is granted, the occupier may be in contempt of court- a strong incentive for the occupier to permit you. If search warrant permission denied, you can still enter. With AP order, cannot enter forcibly. The parties doing the searching should be with their solicitor, and they should give the D the chance to consider the AP order and to consult their own solicitor. The D should also be allowed to apply to discharge the order as having been improperly obtained. pt23.8- Gives court wide powers to make orders for inspection and taking of property to enable proper determination of any matters.

[PMSI Group] Held: A supervising solicitor should be present at giving AP orders. If the searchers go overboard and fail to comply with the AP order, there will be sanctions. See [Long] for example of what happens if a searcher fails to comply with an AP order. [Long]

Facts: A searcher did not comply with the exact terms of the AP order and was fined $15000. Among other things, the solicitor failed to make a proper inventory of the items seized and failed to keep control of the things seized as required by the terms of the order. Held: AP orders are an extraordinary remedy, designed to obtain and to preserve vital evidencein a case where it can be shown that there is a high risk that, if forewarned, the D would destroy or hide the evidence or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Orders should include: specific details of the premises and locations to be searched, the ppl allowed to be part of the search team, the times between which entry will be permitted, and a description of the material that can be removed. 3) Mareva Orders If you think you will will win, but that D is getting rid of assets (transferring assets to another party) to avoid paying money at the end of trial. [Jackson v Sterling] Held: upheld general power to grant Mareva orders. A Mareva order may be granted if there is a danger of D absconding, or danger of assets being removed out of their jurisdiction, or disposed of, or the assets are otherwise dealt with so there is a danger that if P gets judgment, it wont be satisfied. Power comes from inherent jurisdiction to prevent abuse of process. Dawson J et al also spoke of the intentions of D being relevant. [Derby] Held: A Mareva order cant be used simply to prevent D from carrying on its business in the normal way. If it would have always been the case that P would never have been satisfied, Ct cannot force D to artificially change. Must look for malicious intent. Courts look at a prima facie case against D. It is a drastic order, not granted lightly. [Cardille] Held: Mareva orders can sometimes be granted against 3rd parties eg. when 3rd party has some power over the assets, and theres a real risk of assets being disposed of [Media World]. 4) Ancillary Disclosure (of Information) Orders Disclosure orders- sometimes Anton Piller Orders/Mareva Orders, may require parties to disclose certain information. Interrogation (a way to get information disclosed) is not always available (eg. prior to SOC), or useful. [Bax] [Hospital Products] [Microsoft] Held: Cannot just ask for disclosure to get information- there must be a reason for asking.

CLASS 3.1
NSW Uniform Civil Procedure Rules 2005

Pt 6 Commencing Proceedings and appearance pt 6.1 No step without originating process or notice of appearance. (1) Except by leave of the court, a party may not take any step in proceedings unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings. pt 6.2 How proceedings commenced (1) Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons. (2) Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or summons. (3) Originating process must be served on each defendant. (4) Subject to subrule (5), originating process is valid for service: (a) in the case of proceedings in the Supreme Court or a Local Court, for 6 months after the date on which it is filed. (5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process. pt 6.3 Where statement of claim required - Proceedings must be commenced by statement of claim in the following circumstances: (b) if a claim is made by the plaintiff for relief in relation to a tort (d) if a claim is made by the plaintiff for damages for breach of duty (however arising) and the damages claimed consist of or include: (i) damages in respect of the death of any person, or (ii) damages in respect of personal injuries to any person, or (iii) damages in respect of damage to any property pt6.8 How appearance entered (1)- A person may enter an appearance in proceedings by filing a notice of appearance. (2)- A person who is a defendant may also enter an appearance in proceedings by filing a defence in accordance with Division 4. pt6.9 Time for appearance - For the purpose of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division of by filing a defence in accordance with Division 4) is: (a) in the case of proceedins commenced by a statement of claim: (i) 28 days after service on the defendant of the statement of claim, or (ii) if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application, whichever is later. pt10.1 Service of filed documents (1)- Unless the Court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party pt10.3 Service of originating process in Australia pt 10.5 The various methods of service (1)- Subject to these rules, a document may be served on a person: (a) by means of personal service, or

(b) by posting a copy of the document, addressed to the person: (i) to the persons address for service, or (ii) if the person is not an active party, to the persons business or residential address, or (c) by leaving a copy of the document addressed to the person: (i) at the persons address for service, or (ii) if the person is not an active party, to the persons business or residential address, with a person who is apparently of or above the age of 16 years and apparently working or residing at that address, or (d) in the case or service on a corporation, by serving the document on the corporation in any manner in which service of such document may, by law, be served on the corporation. (2) In the case of a person having an address for service that is a solicitors office address, service of a document on the person may also be effected: (a) if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or (b) if the notice advising the address for service includes a fax number, by faxing a copy of that document to that number, or (c) if notice advising the address for service includes an electronic mail address, by transmitting an electronic copy of that document to that address. pt 10.13 Acceptance of service by a solicitor - If a solicitor notes on a copy of (a) any originating process, or (b) any other document required or permitted to be served in any proceedings, but not required to be personally served, that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved. pt 10.14 Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, be order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on expiry of a specified time. (3) If steps have been taken, otherwise that under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service. pt 10.19 Personal service required only in certain circumstances (1)- Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders (2) Except as otherwise provided by these rules: (a) originating process in proceedings in the Supreme Court or the District Court must be personally served on each defendant.

(4) Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. pt 10.20 How personal service effected generally (1)- Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the persons presence and telling the person the nature of the document (2)- If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. (3)- Service in accordance with subrule (2) is taken to constitute personal service. pt10.21 Personal service on corporation - Personal service of a document on a corporation is effected: (a) by personally seving the document on a principal officer of the corporation, or (b) by serving the document on the corporation in any other manner in which service of such document may, by law, be served on the corporation. pt11.2 Cases for service of originating process [Overseas] - Originating process may be served outside Australia in the circumstances referred to in Schedule 3 pt11.3 Notice to the defendant served outside Australia - If Originating process is served on a defendant outside Australia, a notice in the approved form must be served with the originating process. pt11.4 Leave for plaintiff to proceed where no appearance by defendant (1) If originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court. (2) A motion for leave under subrule (1) may be made without serving notice of motion on the defendant. pt 11.5 Service of documents other that originating process - Service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Supreme Court or is subsequently confirmed by the Supreme Court. pt11.6 Mode of service A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. pt11.7 Setting aside originating process served outside Australia (1)- The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. (2)- Without limiting subrule (1), the Supreme Court may make an order under this rule: (a) on the ground that the service of the originating process is not authorised by these rules, or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings. pt11.8 Operation of Commonwealth laws - This part does not require the leave of the Supreme Court for any service or other thing that may be effected or done under any law of the Commonwealth. pt12.11 Setting aside originating process etc (1)- In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process

pt 23.8 Inspection of Property (1)- For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following: (a) the inspection of any property, (b) the taking of samples of any property (c) the making of any observation of any property (d) the trying of any experiment on or with any property (e) the observation of any process. (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property (3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made. (5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection). (6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not. pt 25.3 Preservation of Property (1)- In proceedings concerning property, or in which any question may arise as to property, the court may make orders for the detention, custody or preservation of the property. (3)- In proceedings concerning the right of any party to a fund, the court may order that the fund by paid into court or otherwise secured. Practice Note 120 Rule 11- All parties attend a status conference to conduct an in-depth review of the case. The orders and directions made at a status conference are designed to resolve the case as quickly as possible. The tasks at a status conference include, but are not limited to: (a) considering whether the proceedings would more appropriately be heard in the District Court and making a consent order accordingly Service and Execution of Process Act 1992 (Cth) 20(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include: (a) the places of residence of the parties and of the witnesses likely to be called in the proceedings; and (b) the place where the subject matter of the proceeding is situated; and (c) the financial circumstances of the parties, so far as the court is aware of them; and (d) any agreement between the parties about the court or place in which the proceeding should be insituted; and (e) the law that would be most appropriate to apply in the proceedings; and (f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue.

CLASS 4 Parties and Causes of Action

1) Scope of this Chapter - The classic dispute involves two ppl, whose identities are established and who are of full legal capacity. In such a dispute, the P knows who the appropriate D is, what the cause of action is, and the parties have the capacity to sue and to be sued in their own names.

- However, some cases are more complex. Potential plaintiffs may lack standing. Or they may be unable to sue or defend on their own. Infants, for example, need to have a tutor, next friend or litigation guardian to sue on their behalves. - Companies can sue and be sued, but once they file an appearance, they need to have a solicitor on the record. Bankrupts have to be represented by their trustee in bankruptcy (unless the matter refers to a personal cause of action). Nor can a creditor sue a bankrupt without court leave. Companies in liquidation are controlled by their liquidator. 2) Multiple Causes of Action. - Suing under multiple claims. - Under Pt6.18 of UCPR, P can join more than 1 cause of action, subject to Cts discretion. - In 3 situations: 1) Where P sues in same capacity and where D is liable in same capacity eg. Want to sue in tort and contract, where in both cases D was a vendor 2) Where not suing in same capacity, but suing as executor in your personal capacity in relation to some will 3) Where the court gives leave. - This rule suggests it is plaintiffs choice to join, but law suggests they should join because of risk of penalty eg. Prevented from suing later [Anshun estoppel]. [Anshun] Facts: P sued D1 and D2 in negligence. D1 held to be 90% liable, and D2 10%. But D1 and D2 had contract between them, saying that if D1 held liable for negligence, D2 would pay D1 for it. So D1 tried to sue D2 on basis of that contract. Held: HC stated that D1 estopped from pursuing that contractual claim because the claim was so closely connected with the issues in the first claim that it was reasonable to expect that it should have been litigated then. Also, a new trial might result in conflicting judgements. There was also evidence of D1 flouting case management principles.A cross claim is where P sues 2 Ds, and then D1 sues D2 in a cross claim. If D has claim against second D, bring it up in same trial. And if P has 2 issues against D, both should be brought up in the same trial. [Anshun] did not rely on [Henderson], as they were more worried about 2 different judgments and closeness of subject matter. Held: The matter now sought to be raised by the Authority was a defence to Anshuns claim in the first action. It was so closely connected with the subject matter of the action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into accountBy conflicting judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction. [Gomez] Held: HC said in [Anshun] that it was not relying on [Henderson]. [Anshun] is authority. [Henderson] Held: Dealt with estoppel on basis of abuse of process. [Anshun] is not based on reasoning of [Henderson]. [Trawl Industries]

Held: P lost contract action (that is, Anshun estoppel was upheld), then tried to bring 2nd action for negligent mistatement. However, this action dealt with the same facts and same losses, so should have been dealt with in the initial case. Therefore, estopped. Whether a party should be prevented from litigating an issue which would have been more appropriately included in earlier litigation is a discretionary decision, based upon the courts view of the behaviour of the parties as between themselves and an assessment of whether it is reasonable to allow a party to occupy more court time. [Gibbs] Facts: Example where [Anshun] not applied. Employee went to Industrial Relations Commission for wrongful dismissal, then sued for breach of contract later. [Anshun] was not applied because the first matter went to IR Commission which only has jurisdiction for statutory probs, and employee would have had to wait until case moved to Industrial Relations Court before second argument could be brought in- required to amend pleadings. Is it reasonable to defer the later claim? If yes, [Anshun] does not apply. Depends on particular circumstances- character of previous proceedings, scope of any pleadings, length and complexity of trial and other perceived difficulties. Held: There are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. The first is that the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same of substantially the same facts will arise for consideration in the second as in the first proceeding. There is at least one factorwhich is indicative of unreasonableness in not asserting a cause of action in an earlier proceeding: if any judgment or order which might be made on the cause of action in the subsequent proceedings would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding. [Bryant] Held: The [Anshun] doctrine can also apply to stop a party litigating an issue which he or she should have raised by way of cross-claim in an earlier case between the same parties, provided the cross-claim issues are, as a matter of substance, intimately connected with the issues in the previous case and arise substantially out of the same facts. [Ling] Held: Further, the cross-claim issues must not involve too many additional facts to those already involved in the earlier case. The test is ultimately whether the failure to litigate the relevant issues in the same case in the same court was unreasonable. [Anshun] estoppel usually does not apply to outside parties, but exception is [Rippon]. [Anshun] extended in this case to apply to litigants who were not parties to the original proceedings. [Rippon] Facts: Purchasers of business sued vendors and won for breach of contract but lost misrepresentation claim. Then tried to sue the accountants who had made the statements. Held: The claims against the accountants were so relevant to the subject matter of the first action that it as unreasonable for the purchasers not to rely on them in that action. Therefore, as it was inescapable that the purchasers were trying to re-litigate the identical issue, there was a high risk of inconsistent verdicts. Pt6.23 of UCPR- Ct can order separate trials, if joinder would embarrass/inconvenience/delay proceedings.

3) Multiple Parties (with one cause of action) a) The joining of multiple parties is more limited than joining multiple causes of action. Pt6.19- Joinder rule. Two or more people can be joined as Ps or Ds in 2 situations: 1) When common Q of law or fact, and the relief claimed relates to/arises out of the same transaction/series of transactions. 2) Leave from the Court. b) Pt6.23- Court can still order separate trials if joinder would delay/embarrass/inconvenience. Why should you join? Ps are entitled to sue anyone they genuinely believe is liable to them, even if that belief subsequently turns out to have been unfounded. Where the P is unsure as to which of D1 and D3 should be sued, , and where neither D1 nor D2 does anything to resolve the uncertainty, the P is frequently compelled to sue both in the alternative. The option of bringing the cases separately would be more costly, and could be tactically unwise, because the evidence, arguments and result of the case against D1 would not bind D2 in the second case. - cost - time - advantage for P to sue 2 Ds at once, because Ds blame each other and pick faults in each others cases. c) Costs orders We have seen that costs follow the event- ie that the losing party pays the winning partys costs, even though this does not necessarily mean the winning party will be paid the full costs of their own lawyers bills. What happens in the case where there are two defendants?? S93 of CPB- cost at discretion of Court. There is a common law discretion to order the losing defendant to pay the winning defendants costs. The effect of such an order is to relieve the P from the normal consequences of having lost a case as against one of the Ds. The order is made only where the P can show that it was reasonable to have sued both the winning and the losing D, and that the losing D can be blamed for having contributed to the Ps decision to sue them both. - Bullock Order- where P pays costs of successful D, but these included in cost paid by losing D. - Sanderson Order- where losing D pays winning Ds costs. A Sanderson Order is more straightforward, but is usually avoided where its consequence might be that the winning D ends up being unable to collect the costs as ordered, because the losing D is too poor. The courts usually reason that in such a case, the P should bear the loss rather than the winning D, and they will therefore make a Bullock Order [Vucadinovic] [Smyth v McLeod] Facts: P sued 4 Ds. At trial, P succeeded against D1 and D2, but not against D3 or D4. D3 and D4 were therefore entitled to an order for costs, but from whom? P, D1 or D2? The trial Judge was satisfied that P had everthing that could have been reasonably expected to avoid joining D3 and D4. That joinder had been made necessary, however, by the refusal of D1 and D2 to admit liability. Therefore, TJ ordered that D1 and D2, not P should pay the costs of D3 and D4. [Walker v Corporation] Facts: P sued 5 Ds, but was only successful against D1. The successful Ds argued that a Sanderson Order would be inappropriate because it was unsure if D1 would be able to pay the 4 Ds and the P. Held: The Sanderson Order is to be preferred to the more circuitous Bullock Order. In the case where the winning Ds are in risk of not being paid because the losing D was poor, such a result can obe avoided if the

order is expressed in terms which would enable recourse to be made to the P by the successful Ds in the event of a failure by the successful Dsto recover costs from the unsuccessful D. [Tyco Australia] Facts: Optus sued 3 Ds. It succeeded against D1 and D2, but not D3. Optus was ordered to pay D3s costs, but then a Bullock Order was made against D1 and D2 to pay D3s costs. On appeal, the Bullock Order was overturned, because there is no evidence that their [D1 and D2s] conduct influenced or induced Oputs or its legal advisers to continue its proceedings against D2. Ratio: For the losing Ds to pay the winning Ds costs, there must have been some fault on the losing Ds part which induced the P to go after the winning D also. d) Joinder at the Time of Issue. - See pt6.22 UCPR- Ct may order parties to be joined - Joinder joins parties before SOC, but addition happens if joining parties after SOC. Many judges take an expansive interpretive approach to the rules, merging joinder and addition criteria if it is the P who is seeking to enlarge the number of parties to the case (common law used to maintain a sharp distinction btn joinder and addition, and the criteria for addition was stricter). - Pt6.19 Criteria for joining parties- is there a common Q of law or fact, arising from same transaction/series of transactions? [Bendir] HoL Facts: D builder of a building. 2 Ps had interests in one building, 2 Ps had interests in a 2nd building. All 4 Ps joined action because Ds building interfered with their rights to light and air. Held: Transactions constitute an act the effect of which extends beyond the agent to other persons In that sense, the building of the premises may be regarded as a transaction. [Birtles] Dicta Facts: P sued multiple Ds. However, these Ds filed defences which stated that the statue of limitations period had expired. P then dropped his solicitors and brought new ones in, and sought to join his old solicitors to the list of Ds. Held: If the position be thatfailure to commence proceedings within two years is fatal to the Ps claim against them, and thatthis bar to his relief against the original Ds would entitle him to damages for negligence against the solicitors, r7 appears to me aptly worded to permit a joinder. Test of transaction: The act and/or subsequent events. [Payne v Young] Aus authority Facts: Payne and brothers operated different abbatoirs. They sought declaration that State legislation regarding the inspection of carcasses and payment of fees unconstitutional. Held: HC held that the claims did not arise out of the same transaction. The transactions were peculiar to each individual- there was no common participation in the inspection services which were performed, in the liability to pay the fees demanded or in the payments which were actually made. Majoritys test is conservative, because case management approach means Ct is expected to take a broad view of efficiency. In cases of [Marino v Esanda], [Bishhops v Bridgelands]- these cases show conservative approach still exists- narrow interpretation of transaction. Murphy J dissent: Believed in broad beneficial interpretations because of power of Ct to orde separate trials.

[Marino v Esanda]

Facts: P had entered into two contracts governed by the consumer credit legislation- these were standard form contracts. However, judge held that this would not entitle joinder as co-plaintiffs all other consumers who had entered into that form of credit transaction. Though the contracts might be called a series from the lenders perspective, since there was the same lender throughout, nevertheless the relief each borrower would be seeking would be in relation only to their individual contracts. [Bishop v Bridgelands] Facts: A large number of investors had been led to believe that their dealer had places their deposits on secured loans with Estate Trust. In fact, the money had in each case been invested in Estate Mortgage, with no security. When Estate Mortgage collapsed, they sued their dealer. Judge was willing to allow them to join as coplaintiffs under the Cts discretionary power to give leave (see below), but held that they had no right to join as co-plaintiffs because their claims for relief arose from similar but separate transactions. e) Criteria of Addition - pt6.19(3) UCPR- Joining on basis of leave. - pt6.22- Criteria for addition of parties (joining after SOC/originating process)- you can join a party that is necessary to the determination of all matters in dispute. [Vandervell Trustees] HoL Held: Court refused to add a party. Narrow approach taken- while the tax authorities had a a stake in the outcome, no relief was being claimed against them, they were making no claim to ownership of shares, and there was nothing they could say which would not be said by one side or the other in the action as currently consistuted. Therefore, addition not necessary. [News v ARFL]/[Superleague case] Facts: News prevented from employing players and coaches. The ARFL did not join players or coaches, but towards the end of the trial, they sent out notices to the players and coaches to get legal advice over intervening in proceedings. Held: The players and coaches should have been joined- not sufficient for them to make up their own mind. Test: [Mining]- Whether the persons rights/liabilities may be directly affected by the action. So if order can be made which directly affects a third partys rights/liabilities, the third party should be joined. - Players and coachers would be affected by case because it would restrict who they would work for. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. [Universal Music] Held: the rules will be construed liberally so that a determination of related disputes is achieved. f) Joinder by Leave - pt6.19(4)- Joining may occur before or after SOC. [Bishop v Bridgelands] Held: Basic principles should be whatever course is most conducive to the just resolution of dispute, with regard to limiting costs and delay. - Factors: fairness to partes, practicality of joining (eg. 1 lawyers, many Ps), differences in evidence, unfair on D to face large number of claims in single proceedings. - Court concluded that there was no unfairness. [Cheque]

Held: Leave refused, because no practical advantage of joining, and would be very onerous for 1 respondent if all claims were heard together. - Also, there were pleading deficiencies [Newman] Facts: All Ps retained a company for investment advice. They invested in 1 or more of the 19 schemes in reliance of advice. 193 Plaintiffs, and 504 claims. Court held that it was not sensible for individual Ps to bring claims separately. Looked at alternative of 1 proceedings per scheme, but held it woul.d be unfair to some Ps who had invested in all 19 schemes. - Better to have 2 joint proceedings- 1st had 61 Ps suing first and second Ds in relation to 5 schemes. 2nd proceedings had 169 Ps suing D3 and D4. D5 was sued only by 3 Ds in relation to 2 schemes. - Court spoke of case management to alleviate hardship. Held: Leave refused for some but granted for some.

CLASS 4.1
Civil Procedure Bill 2005

s22 Defendants right to cross-claim (1)- Subject to subsection (2), the court may grant to the defendant in any proceedings (the first proceedings) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose. (3) A person against whom a defendant makes a claim for relief under this section: (a) has the same rights in respect of his or her defence against the claim as he or she would have in separate proceedings commenced against the person by the defendant, and (b) if not already a party to the first proceedings: (i) becomes a party to the first proceedings, and (ii) unless the court otherwise orders, is bound by any judgment (including a judgment by consent or default) or decision (including a decision by consent) on any claim for relief in the originating process and any other claim for relief in the proceedings. s93 Courts powers as to costs (1)- Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full pwer to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to awarded on a party/party basis or on an indemnity basis.

Uniform Civil Procedure Rules.

Pt6.18 Joinder of causes of action (1)- An originating process may allege more than one cause of action in any of the following circumstances: (a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action, (b) if the plaintiff sues: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more causes of action, and (c) if the plaintiff claims the defendant to be liable: (i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and (ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action, (d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings. (2) Leave under subrule (1) may be granted before or after the originating process is filed. Pt6.19 Proceedings involving common questions of law or fact (1) Two or more persons may be joined as plaintiffs in the same proceedings if: (a) separate proceedings by each of them against the defendants in the proceedings would give rise to a common question of law or fact, and (b) the relief claimed in the proceedings relates to, or arises out of, the same transaction or series of transactions. (2) Two or more persons may be joined as defendants in the same proceedings if: (a) separate proceedings against each of them by the plaintiffs in the proceedings would give rise to a common question of law or fact, and (b) the relief claimed in the proceedings relates to, or arises out of, the same transaction or series of transactions.

(3) Two or more persons may be joined as plaintiffs or defendants in the same proceedings in circumstances other than those referred to in subrule (1) or (2), but only with the leave of the court (4) Leave under subrule (3) may be granted before or after the originating process is filed. Pt6.22 Court may join party if joinder proper or necessary - If the Court considers that a person ought to be joined as a party or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. Pt6.23 Court may order separate trials if joinder of party of cause of action inconvenient - If the Court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court: (a) may order separate trials for any of those causes of action or parties, or (b) may make such other order as it thinks fit. pt6.25 Effect of misjoinder or non-joinder of parties - Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings. pt6.26 Joinder as plaintiff requires partys consent - A person is not to be joined as a plaintiff in any proceedings except with his or her consent. pt 6.27 Joinder on application of third party - A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant. pt6.28 Date of commencement of proceedings in relation to parties joined - If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order. pt28.5 Consolidation and linking of proceedings - If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

Flowchart
1) Multiple causes of action- this is when you sue 1 defendant in several causes of action eg. tort and contract. - Speak of

(1) Test for joining: 3 ways - suing in same capacity - P sues in executor/personal capacity - Leave of Court- bring in s56 (overriding purpose of rules) Then if test satisfied and parties dont join, risk of Anshun estoppel. Speak on those cases especially [Gibbs] 2) Joinder of Party- suing more than 1 defendant or 1 plaintiff before Statement of Claim. Test for joining - Common question of law or fact - same transaction/series of transactions - Apply law to facts - Test for transaction [Payne]- Dont speak of [Bendir] etc because not binding. [Payne] was followed in [Marino] and [Bishop] - If test not satisfied, try for leave of court- 3 cases for leave - [Bishop] - [Cheque] - [Newman] Even if test satisfied or leave given, Court can still order separate trialssee s56 Other provisions may be applicable- pt6.25- Even if dont join, those proceedings are not defeated (Anshun estoppel does not apply) - pt6.26- Need Ps consent for joining - pt6. 27- A non-party may advise to join - pt6.28- Date of start of proceedings is date of ordering joinder (cant outflank the limitation period). 3) Addition- Joining of Parties after Originating Process 2 alternative Tests for addition: 1) Ought to be joined [Superleague] or 2) Necessary to be joined- 6.22 - If not satisfied, try for leave of Court - [Bishop] - [Cheque] - [Newman] - Court can order separate trials- s56.

Class 5

Representative Actions and Representative Proceedings

1) Introduction Representative Actions- Supreme Court Representative Proceedings- Federal Court - In Australia, costs usually lie where they fall. But class actions are usually on spec (only pay if you win). In US, lawyers can get percentage of winnings however, so more class actions. Until 1992, very few class actions in Australia (you had to have separate proceedings). - But now, in Part 4A (Federal Court Act) and Pt7.6 in UCPR- rules for class action proceedings. Fed Ct provisions much more sophisticated than those in Supreme Court. Therefore, class actions usually in Fed Ct. 2) Case Law [Markt]- OVERRULED Facts: A ship carrying cargo sunk by Russian warship. Held: That owners of cargo did not have common interests, because they all had separate contracts. Stated also that class actions not allowed for actions claiming damages. [Carnie v Esanda] Held: - At Court of Appeal, stated no class action because provisions could not deal with it. - But at High Court, held there could be one because all borrowers had the same interest in the proceedings. This same interest test is applicable to tort and contract. - Mason J stated the test as whether the class members have a significant common interest in the resolution of any question of law or fact arising in the relvevant proceedings. - Toohey Js test: a significant question common to all the members of the class. Also, just because there were different contracts did not mean there were no common interests. - Therefore, no excuse for Supreme Court to say the provision was not specific enough. In pt7.6(2), gives Ct the power to allow class actions. Young J decided on an opt-in procedure. Opt-out- all potential plaintiffs are in proceedings unless they opt-out Opt-in- all potential plaintiffs notified of proceedings, and can choose to opt-in if they wish. He ordered opt-in because Carnies could not afford to notify all the plaintiffs, and Esanda had made deal with Ps if they opted out. [Shepherd] Held: Bryson J disagreed with Young J and liked opt-out. Federal Court rules also stipulate opt-out. Problems: With so many members of a class, many do not have their interests represented adequately. Brennan J in [Carnie] stated a need for judicial involvement to minimise this. NSW Ct provisions dont have provisions for complaints of class members, unlike Fed Ct. [Arakella] Facts: Case about importance of the role of the representative in proceedings. Ct emphasised that though members of the class were absent, their interests still needed to be considered and proceedings conducted to take care of those interests. 3) Representative Proceedings (class actions in Fed Ct) - Part IVA of Fed Ct.

When representative proceedings, go to Fed Ct- 33C a) 7 or more persons (with claims against same person) b) the claims must be in respect of, or arise out of, same, similar, or related circumstances c) the claims of all ther persons must give rise to substantial common issues of law/fact 33L- if less than 7, may still continue 33N- situtation where Ct orders representative proceedings to stop being representative [Bright] [Wong] [Phillip Morris] 33E- dont need consent of group members to be part of proceedings- but must be notified, and notified of right to opt-out. 33X+Y- On receipt of that notice they may opt-out and retain their private rights (33J). There is no penalty, unlike with group proceedings. 33X- when notice is required 33Y- Form of notice and how it can be given (on TV ads etc, no requirement to be personally served). - How cases are run 33H- The application must describe/identify group members, specify nature of claim and common Q of law or fact. 33K- Groups may be redefined 33Q+R- The principal applicant conducts the case, but some group members may assume conduct of proceedings if there are individual issues. - Settlement Settlements need Court approval (33V) and the Ct can make aggregate settlement and group members then claim their share (33ZA(5)) Court specifies time when group members can make claim, and after this time, $ to principal applicant. Only principal applicant liable for costs, NOT any member of the group. Costs follow the event, meaning if they lost, principal applicant must pay winners costs, unless there was a separate agreement between PA and group members (to contribute to costs). 33ZJ(2)- Costs 33T- Court can hear any complaints from group members. [Bright] Facts: 2 groups of women had sterilisation procedure- Group A got pregnant, Group B had 2nd sterilisation to prevent pregnancy. - Respondents wanted separate proceedings on 1) 33C- no common basis of law or fact 2) 33N- more efficient On 1), Ct said too early to decide. On 33N, no evidence and it would be more onerous to have more trials. Finkelstein J: Representative actions promotes efficient use of Ct time and parties resources. Also gives remedy to people without funds, and prevents Ds from more suits and inconsistent findings. [Wong] Facts: Applicant claimed D engaged in misleading conduct in relation to sale of lots in buildings- class action on behalf of those with similar contracts. Full Ct: No common issue

HC: stated a broad approach was necessary- that provisions should not be read down. Ct concluded that substantial (in 33C(1)) does not indicate large or special significance or would have a major impact on litigation- but rather directed to the issues which are real or largely of substance. [Phillip Morris] AUTHORITY Facts: Smokers v Tobacco Co. Respondents said to satisfy 33C- it was necessary for each member to have a claim against every respondent. Held: Ct stated that all applicants had to have claim against all the repondents. Allowed parties to replead so as not to prejudice case. [Bray] Dicta Held: Ct distinguished from [Phillip] ratio. However, not a binding judgment. [Brian Alexander] Held: Followed [Phillip] [Bray] also discusses security for costs. Ct can order members of class to give security for costs. - What is security? If you believe that your class action may fail, you may be asked to give security in case you have to pay the Ds costs in case of a loss. - Cts can do this if PA may not be able to pay, or if class members are using case as a tool of repression (class actions scare defendants). Pt28.5- for grouping separate cases Amicus curiae- friend of court. Main different between representative actions and joinder- PA reps each member in a class, but with joinder, all parties are parties to proceedings, dont delegate to a representative party. Class actions are usually bigger (Fed Ct <7, NSW no limit). Ct can order class action if a great number of ppl want to join.

CLASS 5.1
Uniform Civil Procedure Rules
pt7.6 Representation of concurrent interests (1)- This rule applies to any matter in which numerous persons have the same interest of same liability (2)- Unless the court orders otherwise, proceedings with respect to such a matter may may be commenced and carried on by or against any such person as representing any one or more of them. (3)- In any proceedings against a number of such persons, the plaintiff may apply to the court for an order apointing one or more of those persons (whether or not party to the proceedings) to represent any one or more of them (4)- An order that appoints a person who is not a party to the proceedings has the effect of joining the person as a defendant. pt7.7 Judgments and orders bind represented persons in proceedings generally (1)- A judgment or order made in proceedings in which a party has, by an order under rule 7.6(3), been appointed to represent a number of persons binds all of those persons, but is not eforceable against any of those person who is not a party except by leave of the court. pt28.5 Consolidation and linking of proceedings - If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, of (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

Federal Court Act

IVA This provision confers a special jurisdiction to govern representative proceedings. 33B- Part IVA applies only to causes of action accruing since March 1992 33C(1) Subject to this Part, 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; a proceeding may be commenced by one or more of those persons as representing some or all of them. (2) A representative proceeding may be commenced: (b) whether or not the proceeding: (i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or (ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

33D The representative party has standing to sue for the group members, even if he or she has reached an individual settlement. 33E(1) The consent of a person to be a group member in a representative proceedings is not required unless subsection (2) applies to that person. 33H(1) An application 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 proceedings 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 the the claims of the group members. 33J(1) The Court must fix a date before which a group member may opt out of a representative proceedings. (2) A group member may opt out of the representative proceeding by written notice given under the Rules of Court before the date so fixed. (3) The Court, on the application of a group member, the representative party or the respondent in the proceeding, may fix another date so as to extend the period during which a group member may opt out of the representative proceeding. 33K The group can be redefined, and it can be enlarged to add members whose causes of action arose after commencement of the representative proceedings. 33L The court has a discretion whether to stop the representative nature of the proceedings where the groups membership has fallen below 7. 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 proceedings were to continue as a representative proceeding are likely to exceed the casts 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 proceedings under this Part; or (c) the representative proceeding will not provide an effiecient 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. 33Q and 33R The principal applicant conducts the case, but some group members may assume conduct of proceedings if there are individual issues. 33T Court can hear any complaints from group members. 33V Settlements for the group need Court approval. 33W The representative party needs leave to settle his/her own case and following that a new representative would probably be chosen. 33X(1) Notice must be given to group members of the following matters in relation to a representative proceeding (a) the commencement of the proceedings and the right of the group members to opt out of the proceeding before a specified date, being the date fixed under subsection 33J(1) (4) Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members. (6) Notice under this section must be given as soon as practicable after the happening of the event to which the notice relates. 33Y(2) The form and content of a notice must be as approved by the Court.

(3) The Court must, by order, specify: (a) who is to give the notice; and (b) the way in which the notice is to be given (4) An order under subsection (3) may require that notice by given by means of press advertisement, raido or television broadcast, or by any other means. (8) The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding. 33ZA(5) The Court can make an aggregate settlement and the group members then claim their share. 33ZC and 33ZD Group appeals from trial judgments are possible. 33ZE So long as a person belongs to a group which is represented in court, time does not run against that person under any limitations legislation. 33ZJ(2) If, on an application under this section, the Court is satisfied that the costs reasonably incurred in relation to the representative proceeding by the person making the application are likely to exceed the costs recoverable by the person from the respondent, the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded. s43(1A)- Class members (but not their representatives) are immune from adverse costs orders.

Class 6
Pleadings
1) Introduction Pleadings are written statements between parties to dispute and they define the parameters of the trial. - Pleadings are different from particulars, which are details of pleadings/material facts and different from evidence, which is used to prove material facts. - Sometimes, distinction between pleadings and particulars is blurred. Unrepresented parties usually cant tell the difference. 2) Key Characteristics of Pleadings. 1) Their alternating character (each party takes turns) - 1st doc is SOC (pt6.12) - 2nd doc is defendants defence and sometimes a counter-claim (pt14.3). Defence is 28 days after SOC served. - 3rd doc is a reply from P to D- pt14.4. P has discretion to send this document, unless Ds defence included a counter-claim, which must be answered with a defence. - Usually, thats all, you need Ct to allow more docs- pt14.5 - If leave is granted: - Rejoinder (D writes) - Surrejoinder (P writes) - Rebuttal (D writes) - Surrebuttal (P writes) 2) The incentive to respond: - There is an incentive to respond to a SOC, because if no defence, it means D admits it (pt14.25). - But if P does not reply to a defence, it is deemed to be denied. A joinder of issue operates as a denial of all allegations made in a pleading- pt14.26(2). - Cant have joinder of issue if failure to apply to SOC- pt14.26(4). 3) Objectives - Allows parties to prepare for trial. - Gives Ct notice and allows judge to prepare. - Forms a permanent record of nature and parameters of the case. Who creates pleadings? - The parties, reflection of adversarial system, but because of case management, trend to Cts taking greater role in terms of pleadings. - Importance of accurate pleadings and need for judicial scrutiny: [Truth about Motorways] Held: Ct spoke about objective of pleadings- to state with sufficient clarity the case that must be met, and the need to avoid trial by ambush. Relied on [Commerical Banque]. He also criticised parties. [Commercial Banque] Facts: Akhil sued the bank and 2 others, and all 3 Ds pleaded that there were out of time. So A sent letter to 2 Ds alleging fraud, but not to the bank. The bank did not intend trial. Ratio: Relief is confined to what is available on the pleadings. Dawson J disagreed, saying it was only a pleadings error.

{Facts: A sues BC a breach of trust by enabling to sell the shares without the authority of A. The defence lodged was a 6 year time bar, in which the limitations Act would veto the claim of the plaintiffs unless fraud was proven. A fails to submit a reply the defence claiming the Fraudulent breach of trust to the bank, and on trial the bank did not attend trial. The court at first instance failed As claim in that they had failed to prove interest of the share. On appeal the decision was reversed in addition it had found fraud against BC. BC appealed to the high court. Held: Since the allegation were not made against BC in the pleadings, therefore it would do prejudice to BC if fraud was found. There it ordered the claimed to be struck out and quashing the claim. Mason CJ and Gaudron JJ: Pleadings is used to state with sufficient clarity the case that must be metit is to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally to define the issues for the decisions. Bank not having been present at the hearing, there could be no acquiescence by it in such course thus bank does not have knowledge of the fraud. A should only be entitled to such relief as was available on the pleadings.}

Practice Note 120 pt8- prior to Status conference pt11B- properly defined issues pt17- prior to hearing, statement about issues for dispute. [Adler v ASIC] Facts: Collapse of HIH. Appeal against trial verdict because of violation of Corporations Act. TJ: had ruled outside of ASICs pleadings. Ct held that SOC had to be read as a whole, and if done correctly, included matters beyond specified date. [Fieldturf] Facts: A sued R for infringement of patent. In its defence, R did not specifically deny the allegations, choosing the do not admit response. A asked for particulars of do not admit response, and R was ordered to provide particulars. Ct: important to identify subject matter of dispute- need for parties to be on equal footing. Ct should intervene if parties do not identify what is in the dispute. - these comments, approved in [Holden] but slightly different results. [Holden] Ct: Did not order further particulars to be given but said if not given, D may not be able to give evidence to support their denial Ratio: 1) Need for clear pleadings 2) Ct reached a slightly different decision than that in [Fieldturf], but possible penalty for D 3) Different Cts, different judges and lists. In Exam, if asked to look at common law provision, see Practice Note 120, highly favourable of case management.

Consequences of bad pleadings:

1) Cant get the relief you want 2) Ct may give you leave to amend or the pleadings may be struck out. Pt14.2- Ct can dispose of defences or order parties to discontinue pleadings if unnecessary. Practice Note 120 - Para 5- Parties need to fill out DCM docs. In Appendix of PN, shows what pleadings must contain. - At 1.1.3, DCM should contain narrative of facts P plans to prove on liability - At 2.1.3 deals with Ds DCM doc- Ds narrative of facts. - In some cases, pleadings need to be verified- pt 14.21-23

4) Rules of pleadings.
- Form of pleadings pt14.6- paragraphs pt14.7- material facts pt14.8- brevity Material facts pt14.7 - Each element that a party has to prove to make out their claim or defence. - Not a particular and not a conclusion of law - How to decide what is a material facts: Negligence - duty of care - breach - damages

Contract

- existence - terms - breached - damages Each paragraph should address a material fact. Evidence is not a material fact. Supp materials p110. 1st paragraph Intro Next paragraph are material facts Last paragraph- prayer of relief sets out claim eg. interests, damages, costs. - p108-9, these are incorrect examples. Exam- no test on drafting SOCs - pt14.21-23 requires certain matters to be verified. - pt14.14 requirement to plead specifically any matter which would otherwise take the other party by surprise. [Fieldturf] can be used as precedent to avoid trial by ambush [Holden] endorsed [Fieldturf] [Bright v Samson] Facts: P injured self at Ds skating risk. Ds defence did not include the plea that the rink had put up an exemption clause at its entrance. This lack of plea was likely to take P by surprise. Held: Precedent for pleading specifically to avoid surprise.

Ct: argument not allowed, should have allowed amendment of pleadings and ajournement. These were the old rules. If in common law division of Supreme Court, rare to allow this because of case management. 5) Particulars These are the details of material facts which limit evidence which may be introduced at trial. Pt15.9 particulars may be delivered separately pt15.1 particulars must identify the issues which parties must meet. pt15.2-8 particulars required in different matters pt15.11 paticulars for personal injury matters. 6) Purpose of Particulars [Pilato] Ct: held purpose of pleadings is to defined issues in general terms, but particulars is to specify issues and allow other parties to understant the case to be met and avoid surprise. [Beach Petroleum] Held: Moden approach is to allow particulars to fix defective peladings- Ct held that distinction btn facts and pleadings has become obscure- both have been melded together. Why do Cts allow this? 1) Quicker and easier to fix. Amending pleadings equals amending the defence. With particulars, no onus to respond to them. 2) Particulars can be provided in another document pt15.9 3) When defective particulars emerge at trial, its not always fatal- doesnt always required ajournement [Leotta] and [Dare] 7) Amending Pleadings Ct allows amendment at any stage in proceedings- pt19.1 Pt19.1(2)- amendments should be made for defining real issues and correcting error and avoiding multiple proceedings pt 19.1(3) amendments in relation to causes of action pt19.2- amending a statement of claim pt 19.2(1)- SOC may be amended only once within 28 days with Ct leave pt19.2(2)- D can then amend defence within 14 days of service of SOC When does Ct grant leave to amend? Looks at: - prejudice to other party - s56 and s59- efficiency and avoidance of costs and delay. - influenced by what is just - not just monetary, but emotional cost [Etna] [Leotta] Facts: The deceased fell from a train. P sued the Public Transport Commission for negligence becauese P alleged train started as deceased started to board. At trial, evidence showed that train might have been moving as the deceased was boarding, and that the guard might have been negligent. In other words, P invited jury to consider a different version of events (ie guard, not PTC was negligent). HC: Upheld decision for P, saying that it was not a different cause of action and material facts showed that D had acted negligently (liberal construction). If in the cause of action upon which the plaintiff sued there

had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. [Dave] Held: Evidence at trial justified higher amount of damages then than estimated in particulars. Held that P could take higher amount of money- liberal approach. [Cth Securities] Narrow approach [QLD v JL Holdings] Held: This is the case precedent for amendments. This case is authority for allowing amendments and if there is tension between efficiency and substantive rights. HC: individual justice is dominant criteria. Very very important case! Look at s56 and s59 of CPB. 8) Challenging Pleadings pt14.27- If there are bad pleadings, can argue that pleadings be struck out if no reasonable cause of action etc. 9) Formal Admissions - Sending notes to other side to admit uncontested things and narrow the dispute. Pt17.2- how to serve notice to admit facts. See also rule 3 and rule 6. [Rigato] Facts: D failed to respond to notice to admit. Pt17.3- no reply meant it was taken as admitted. After change of lawyer, the party wanted to withdraw those admissions. Leave to withdraw was refused. Similar outcome in [Jeans] (because ppl knew what they were doing). But in [Asler], leave granted because parties were unrepresented, and they did not understand.

CLASS 6.1
Uniform Civil Procedure Rules
pt 6.1 No step without originating process or notice of appearance. (1)- Except by leave of the court, a party may not take any step in proceedings unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings. pt14.2 Trial without further pleadings (1)- If in the opinion of the court: (a) the issues between the parties can be defined without further pleadings, or (b) for any other reason the proceedings may properly be tried without further pleadings, the court may order that the proceedings be so tried. pt14.3 Defence (1)- Subject to these rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim to which the defence relates. pt14.4 Reply (1)- In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence. (3)- The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff. pt14.5 Further pleadings (1)- Except by leave of the court, a party to proceedings may not file any pleading subsequent to the reply. (2)- The time limited for a party to seek leave to file a pleading subsequent to a reply (the futher pleading) is 14 days after service on the party of the pleading to which further pleading responds. pt14.6 Pleadings to be divided into paragraphs - If a pleading alleges or otherwise deals with several matters: (a) the pleading must be divided into paragraphs, and (b) each matter must, so far as convenient, be put in a separate paragraph, and (c) the paragraphs must be numbered consecutively. pt14.7 Pleadings to contain facts, not evidence Subject to this part, Part 6 and Part 15, a partys pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved. pt14.8 Pleadings to be brief - A pleading must be as brief as the nature of the case allows. pt14.9 References in pleadings to documents and spoken words - If any documents or spoken words are referred to in pleading: (a) the effect of the document or spoken words must, so far as material, be stated, and (b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material. pt14.10 Certain facts need not be pleaded - A party need not plead a fact if: (a) the fact is presumed by law to be true, or (b) the burden or disproving the fact lies on the opposite party,

except so far as may be necessary to meet a specific denial of that fact by another partys pleading. pt14.14 General rule as to matters to be pleaded specifically (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (c) that raises matters of fact not arising out of the preceding matters. pt14.16 Defendants pleading of contributory negligence - A defendant who relies on contributory negligence must plead specifically the contributory negligence. pt14.17 New matter may be raised in pleading - A party may plead any matter even if the matter has arisen after the commencement of the proceedings. pt14.18 Pleadings to be consistent as to allegations of fact (1) A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings. (2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative. pt14.19 Pleadings may raise points of law - A pleading may raise any point of law. pt 14.21 Pleadings in proceedings for defamation, malicious prosecution, false imprisonment, death and personal injury This Division does not apply to proceedings for the damages for the above wrongs. However, (2) states the Court may order that this Division is to apply to any or all pleadings in any such proceedings with such variations as the court may direct. pt14.22 Verification of certain pleadings (2)- A partys pleading (including an amendment of the pleading) must be verified by affidavit. (3)- The affidavit verifying a pleading must state: (a) as to any allegations of fact in the pleading, that the deponent believes that the allegations are true, and (b) as to any allegations of fact that the pleading denies, that the deponent believes that the allegations are untrue, and (c) as to any allegations of fact that the pleading does not admit, that after reasonably inquiry the deponent does not know whether or not the allegations are true. pt14.23 Court may order pleadings to be further verified (1)- Within 14 days after service of an affidavit under rule 14.22 in relation to a pleading, a party may apply to the court for a direction that the party pleading verify or further verify the pleading and for such other directions as may be appropriate. pt14.25 Admission and traverse from pleadings (1)- An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless: (a) in the pleading in response, the opposite party traverses the allegation, or (b) a joinder of issues under rule 14.26 operates as a denial of the allegation.

(2)- A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation. (3)- Despite subrule (1), a pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits the allegation. pt14.26 Joinder of issue (1)- A pleading may expressly join issue on a previous pleading. (2)- If there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence. (3)- If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue on the reply or subsequent pleading. (4)- There can be no joinder of issue, express or implied, on a statement of claim. pt14.27 Circumstances in which court may strike out pleadings (1)- The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to case prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. pt15.1 Pleadings must give all necessary particulars - Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. pt15.5 Allegations of negligence and breach of statutory duty in common law (1)- The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise): (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and (b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligence act or omission. pt15.9 Manner of giving particulars - The particulars to be given by the pleading must be set out in the pleading or, if that is inconvenient, must be set out in a separate document referred to in the pleading and filed with the pleading. pt15.11 Particulars required for proceedings generally - Applies to personal injury cases- SEE SEPARATE SHEET. pt17.1 Definitions In this Part: the admitting party means a party who is admitting, or being asked to admit, any matter: the requesting party means a party in whose favour another party is admitting, or being asked to admit, any matter. pt17.2 Voluntary admissions of fact (1)- The admitting party may, by a notice served on the requesting party, admit specified facts in favour of the requesting party. (2)- The admitting party may, with the leave of the court, withdraw any such admission.

pt17.3 Notice to admit facts (1)- The requesting party may, by a notice served on the admitting party (the requesting partys notice), require the admitting party to admit specified facts. (2)- The admitting party may, by a notice served on the requesting party within 14 days after service on the admitting party of the requesting partys notice (the admitting partys notice), dispute any fact specified in the requesting partys notice. (3)- Any fact specified in the requesting partys notice that is not disputed by the admitting partys notice is taken to be admitted by the admitting party in favour of the requesting party (4)- The admitting party may, with the leave of the court, withdraw any such admission. pt17.6 Restricted effect of admission - An admission made under this Part in connection with any proceedings: (a) may not be used in those proceedings except in favour of the party in whose favour it was made, and (b) is taken to have been made for the purposes of those proceedings only. pt19.1 Court may order documents to be amended (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) All necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this rule may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings pt19.2 Amendment of statement of claim (1) A plaintiff may, except by leave of the court, make one amendment to a statement of claim at any time within 28 days after the date on which the statement of claim was filed, but not after a date has been fixed for trial. (2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim.

Practice Note 120

para5- (1) In relation to any party, the DCM document refers to the document which, by virtue of this Practice Note, may be required to be filed by that party. The form and content of the DCM document are explained in Appendix A. (2) A plaintiff must file the DCM document at the same time as filing the originating process. (3) Where a defence or cross claim is filed in default proceedings the plaintiff must file the DCM document within one month after being served with an appointment for Status Conference and a defence and/or cross claim. (4) Each other party must file the DCM document not later than one month before the date of the Status Conference. para 8- It is expected that the parties legal representatives will have discussed the case before the initial status conference and will have: a) narrowed issues; b) agreed on suitable interlocutory orders, directions or arrangements; c) prepared a draft timetable for the future management of the proceedings; d) prepared draft short minutes of any orders or directions to be sought at the status conference; and

e) discussed the possibility of settling the dispute by Alternative Dispute Resolution (ADR). para11- The tasks at a status conference include, but are not limited to: b) defining the matters in issue, including liability. If no defence (or defence to cross-claim) has been filed the Registrar may direct that there be judgment as to liability on that claim para17- The Court may direct all parties to complete and sign a clear, concise, joint statement of the specific matters of fact and of law that are really in dispute and nominating the evidence specifically relevant to those matters, and if appropriate an up to date schedule stipulating the components of damage referred to in paragraph 11(i). Each party is expected to bring to the Final Conference a draft of a suitable joint statement of the matters in dispute. APPENDIX A para 1.1 The plaintiffs DCM document is to contain:para 1.1.3 a concise narrative of the facts the plaintiff intends to prove on the issue of liability, so drafted as to expose the specific matters of fact upon which liability is likely to depend; para 2.1 The defendants DCM document is to contain:para 2.1.3 a concise narrative of the facts the defendant intends to prove on the issue of liability, including contributory negligence, so drafted as to expose the specific matters of fact upon which liability is likely to depend;

CLASS 7
Summary Disposition
1) Introduction Most matters disposed of before trial. One way that this happens is through ADR. Other ways include 1) Summary judgment- where cases with no merit are judged 2) Default judgment- where no defence 3) Want of prosecution 4) Withdrawal or discontinuance 2) Purpose of summary Judgment To cut short proceedings where claim/defence has no merit or chance of success. For P- pt13.1- satisfied if facts fulfil claim and defence has no merit For D- pt13.4- relief if proceedings were vexatious, abuse of process, or claim has no merit. Positives of Summary Judgment - cost - time - efficiency Balanced with - justice - rights of litigants to a full and fair hearing Courts generally take a very conservative approach- it needs to be really obvious that the claim/defence cant work. Very rare to see this, eg. only in cases where, say, the defence is in a different area of law from the basis of the claim - Rationale: Dont want to waste parties time and money especially when full costs are rarely recoverable. [Gray] Held: No real prospect of success= hopeless, or bound to fail- a strict test. [Minson] Held: Summary judgment only available in a very clear case. While in an appropriate case the court might, after close analysis, resolve a comples question of law, it remains the case that summary judgment will only be entered in a very clear case; where it appears that there is a real question to be tried, either of law or fact, then summary judgment ought not to be entered. - Evidence will be looked at, but no mini-trials allowed. NSW law is stricter than QLDs- only summary judgment if no defence (not no real defence etc). [Pico v Voss] Held: Summary judgment overturned because Ct talked of the transaction as being suspicious- there needed to be a full investigation. Conclusion: Summary judgment only if the case is bound to fail (not likely to fail). 3) Default Judgment

NSW only refers to default of defence, not appearance. - Applies to cases where D gives no defence, and P moves for an early judgment. - 1 reason for default judgment is to enforce compilation with timetables. Positives of Default judgment - efficiency - promotes respect for Ct procedure - saves time, prevents delay However, sometimes there is a genuine reason why a defence has not been filed. eg served on wrong party. Therefore, default judgments are easy to set aside. pt16.1- applies to proceedings begun by SOC pt16.2- definition of default pt16.2(1)- when Ct orders a defense be struck out pt16.2(2)- when D is not in default- if D filed defence after time has lapsed but before Default judgment application has been made. pt16.3- talks of procedure for default judgment- affidavit of service of SOC- this is sworn evidence that SOC served on ___ date. - Cases about when default judgment was given, then set aside. Easy to get default judgment, but also easy to set it aside. [Cook] Facts: Workplace injury. Employee sued. P obtained default judgment. However, insurers had made incorrect file note that claim had been settled- Ct held TJ was wrong and retracted default judgment. Ct has the unconditional discretion to set aside default judgments. Looked at [Dixon Homes] and considerations: 1) explanation for failure to appear 2) delay in application to set aside 3) D had strong defence - The need to establish an arguable defence on the merits- no need for strong merit, but some merit- its a fine line. [Westpac] Facts: Irregular default judgment- expressed against defendants in personal capacity as well as trustee capacity. - Irregular because summons had not described them as being sued in capacity of trustees. On appeal, Ct looked to see if defence had merit- decided defence had some merit. Who pays costs of having default judgment set aside? Discretion, but usually D, because it was Ds fault. If default judgment was irregular, then it might be different.

Pt12.7- If P does not prosecute proceedings with due despatch, Ct can order dismissal of Ps claim. - But because of case management and status conferences, Ps would usually get notice first. s61 of CPB ss1- Ct can make directions as to conduct of proceedings. ss2- If not complied with, can strike out claims or defences. 4) Discontinuance of Claims/Withdrawal of Defences P can choose to withdraw claims, and D can withdraw defence. This can happen when the parties decide to settle (if D decides its defence is bad), or P realises its claim has no merit. If P discontinues close to trial, P may pay costs.

pt12.2- Effect of discontinuance does not preclude fresh proceedings etc. [Siemon] Held: Judge ordered discontinuing P to pay costs to D on an indemnity basis. Ordered because orders sought were so wide as to bound to fail and no allegaion of wrong doing.

CLASS 7.1

Civil Procedure Bill 2005

s61 Directions as to practice and procedure generally (1)- The court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate (2)- If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly,

Uniform Civil Procedure Rules 2005

pt12.2 Discontinuance of claim by leave The Court may grant leave to a plaintiff to discontinue proceedings: (a) so far as they concern the whole of the plaintiffs claim for relief, or (b) so far as they concern a particular defendant. pt12.7 Dismissal of proceedings for want of prosecution If a plaintiff does not prosecute proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. pt 13.1 Summary Judgment (1)- If, on application by the plaintiff in relation to the plaintiffs claim for relief or any part of the plaintiffs claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires. (2)- Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed. pt13.4 Frivolous and vexatious proceedings (1)- If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2)- The court may receive evidence on the hearing of an application for an order under subrule (1). pt16.1 Application of Part This Part applies to proceedings commenced by statement of claim.

pt16.2 Definition of in default (1)- A defendant is in default for the purposes of this Part: (a) if the defendant fails to file a defence within the time limited by rule 14.3(1) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out. (2)- Despite subrule (1), a defendant is not in default if the defendant: (c) has filed a defence after the time limited by these rules or allowed by the court, but before the plaintiff has filed an application for default judgment. pt16.3 Procedure where defendant in default (1)- If a defendant is in default, the plaintiff: (a) may apply for judgment to be entered under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (2)- Unless the court orders otherwise, an application for judgment to be entered under this Part must be accompanied by: (a) an affidavit of service of the statement of claim (the affidavit of service), and (b) an affidavit in support of the application (the affidavit in support).

CLASS 8
Discovery and Gathering Evidence I
1) Introduction The purpose of the rules which allow for pre-trial access to documents and information held by the other side, is to ensure that parties and courts will have access to the information relevant to the dispute. It shows parties the strengths and weaknesses of their respective cases, helps them to prepare for trial, and may also help parties make informed settlement offers. These access rules are, however, restricted by the rules of privilege, and by criteria and scope restrictions designed to limit the time and cost of this pre-trial exercise. Also, because of the added expense, it seems that richer parties are more able to benefit from discovery. Therefore, a balance needs to be struck between access and controlling the scope and expense of the process. Controls on Discovery: - No automatic right to discovery- need to apply to the Court for it. - No Ct necessary for a notice to produce. 2) Notice to Produce - A short cut alternative to formal discovery. Unlike formal discovery, no need for Cts permission to issue this notice- you have the automatic right. It is a document asking other side to produce certain documents. 1) Pt21.10- what sort of documents can you ask for?- any referred to in pleading, witness statement, affidavit 2) any other documents clearly specified in notice and relevant to a fact in issue- pt21.9(2) Pt 21.11(1)- when a party is served with this notice, they must (within reasonable time) produce the documents in their possession/custody/power or say who has it. Reasonable time= 14 days or longer (pt 21.11(2)). In other words, less then 14 days is unreasonable. - No restriction on number of documents. - This notice only applies between parties (not 3rd parties). - Pt21.12- personal injury matters you can only ask for documents referred to in the pleadings/witness statements/affidavits. - Pt21.10(2)- parties can specify time limits to produce documents, otherwise, its a reasonable time. 3) Discovery Courts dont like discovery because of cost. - Object: to obtain relevant information that other side possesses- reveal existence of documents to the other side. - 3 Part process 1) Go to Ct and apply for order for discovery 2) The other side is served with the order and hunts around for the documents and compiles a list of the relevant documents 3) Inspection stage- list is sent to the other side, who may copy the documents or just look at them. Pt21.2(1)- apply to Ct for order pt21.2(2)- classes of docs you can ask for (relevant to a fact in issue)- much broader than in notice to produce. pt21.3- 28 days to serve list required by order

pt21.3(1)- need to comply with Ct order. pt21.4- need sworn affidavit supporting documents and if there is a solicitor, need a certificate from solicitor saying client has been advised of obligations. What if discovery not complied with? s61 of CPB: Ct sanctions eg. contempt of Court. pt21.8- personal injury- order of discovery only in special circumstances in these cases. pt21.5- Within 21 days, party must allow inspection- also keeping documents in accessible condition and assisting photo copying.

Traditional Approach - To try to get any docs directly or indirectly relevant QLD approach- only directly relevant documents NSW approach- somewhere between traditional and QLD. [Commonwealth v Northern Land] Held: enable the party to advance own case or damage opponents case? Ct stated it was not allowed to go fishing- see [Microsoft] 4) The Necessity Control NSW rules dont have this control spelt out, but because in NSW, discovery is not a right, but goes to the Court, Cts will consider necessity. Tests include considering costs, commercial sensitivity, the need to protect trade Rivals [Mobil]. [Mobil Oil] Facts: Guina wanted documents from Mobil, but Mobil resisted because of commercial sensitivity. TJ allowed, because said confidentiality clause would make it ok. Held: On appeal, held TJ should have looked at the document before ordering discovery. [Ammerican] Held: Originally, Ct said discovery on 1st 2 issues, and further discovery was to be contingent on the findings. 1st appeal- full discovery should be allowed 2nd appeal- oppressive to order full discovery, when it was clear that the full issue might not be reached. 5) Definition of Document - Extremely wide definition- any record of information and includes a computer hard disk, e-mail, DNA slide etc. [Sony v Uni of Tasmania] Held: Discovery orders were made to allow Ps expert to have access to university back up files to retrieve deleted information. Also, pt21.1(1)- definition of excluded documents eg. those which were created once proceedings were begun. See also [Grant v Marshall] 6) Possession, Custody or Power. NSW rules refer only to possession, but the definition of possession also includes custody and power. [Roux v ABC] Held: Gave definitions: Possession= lawful right to possession Custody= corporal possession Power= presently enforceable right to inspect document.

[Palmdale] Held: D lacked copies of income tax return but had enforceable right under FOI legislation and if D asked the tax authorities, D was likely to get documents. [Taylor v Santos] Facts: Master ordered Santos to disclose documents of sub-sub-subsidiary Held: Ct held documents in possession of subsubsubsidiary could not be gotten- they were not in Ds power. But in [Citibank], D had greater level of control. Therefore, had to get the documents- it depends on the degree of control. 7) Privilege. If documents privileged, include in list and state basis for privilege eg. lawyer-client etc. Pt21.5(2)(a)- no need to produce privileged documents. Confidential information between lawyers and clients for the purpose of legal advice is privileged. [Baker v Campbell] Held: Rationale for privilege. [Fagan] Facts: Police sued employer for failing to provide a safe system of work. Policemans lawyer interviewed other officers, then found that the interviewees had to report the interview to their employer. Held: Legal professional privilege extends to communications between a 3rd party and the legal adviser (Ps/Ds lawyer). Scope of legal privilege- confidential information between lawyers and client if for the purpose of giving or receiving legal advice. 3rd party communications also privileged if the dominant purpose was related to actual or anticipated ligitation [Esso].

CLASS 8.1
Civil Procedure Bill 2005
s61 Directions as to practice and procedure generally (1)- The court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate (2)- If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (g) it may make such other order or give such other direction as it considers appropriate. (3)- Subsection (2) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

Uniform Civil Procedure Rules 2005

pt21.1 Definitions (1) In this Division: excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents: (a) any document filed in the proceedings, (b) any document served on party A after the commencement of proceedings, (c) any document that wholly came into existence after the commencement of the proceedings pt21.2 Order for discovery (1)- The Court may order that party B must give discovery to Party A of: (a) documents within a class or classes specified in the order, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2)- A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. pt21.3 List of documents to be prepared (1) Party B must comply with an order for discovery by serving on Party A a list of documents that deals with all of the documents referred to in the order. (2) The list of documents: (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1): (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify.

pt21.4 Affidavit and certificate supporting list of documents (1) The list of documents must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitors certificate of advice. pt21.5 Documents to be made available (1)- Party B must ensure that the documents described in Part1 of the list of documents (other than privileged documents): (a) at the time the list of documents is served on party A and for a reasonable time thereafter, are physically kept and arranged in way that makes the documents readily accessible, and capable of convenient inspection by party A, and (b) at the time the list of documents is served on party A and until completion of the trial of the proceedings, are identified in a way that enables particular documents to be readily retrieved. (2)- Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A: (a) produce for party As inspection the documents described in Part 1 of the list of documents (other than privileged documents), and (b) make available to party A a person who is able to, and does on party As request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and (c) provides facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and (d) provides photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied pt21.8 Personal injury claims - In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise. pt21.9 Definitions (2)- For the purposes of this Division, a document of thing is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissable in evidence. pt21.10 Notice to produce for inspection by parties (1)- Party A may, by notice served on party B, require party B to produce for inspection by Party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2)- A notice to produce may specify a time for production of all or any of the documents or things required to be produced. pt21.11 Production under notice to produce (1)- Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a) produce for party As inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party Bs possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party Bs knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2)- For the purposes to subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time. pt12.12 Personal injury claims - In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, a party is not required to comply with a notice to produce in relation to a document of thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise.

CLASS 9
Discovery and Gathering Evidence II
1) Privileges against self-incrimination and exposure to a penalty or forfeiture Parties cannot be compelled to produce information that would tend to expose them to criminal penalty. In discovery, this means that parties need not produce any document for inspection, or answer any interrogatory that would tend to incriminate them. [Microsoft] Ct: it was stated that it would be the rare case in which the mere provision of a list of documentswould tend to expose a person to a criminal penalty. This privilege is not available to corporations. 2) Without prejudice communications This rule states that oral and written communications are protected by privilege if they are made in a genuine attempt to settle a dispute. [Mercantile] Held: Compromise negotiations are typically conducted against a background of a shared expectation that communications incidental to the process will not be disclosed without consent. This case is also precedent for without prejudice privilege in cases where party C, who wasnt a party to the mediation, seeks to inspect the mediation documents of party A, when party A had previously mediated with party B. Public policy reasonswant to encourage full and frank disclosure. 3) Confidential information Parties often agree to put in place confidentiality regimes, the purpose of which is to restrict access to discovered information to designated persons or categories of persons. If the parties cannot agree, the court will in an appropriate case made an order to that effect. [Photocure] Facts: Parties involved in patent litigation. A confidentiality agreement was in place, but the applicant later complained that some of the ppl who fitted within the category of permitted ppl were also officers of the second respondent. The court agreed to vary the consent order. What is the rationale for restricting access to discovered documents? [Seven Network] Held: The problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information. Whether it is right to say that inspection of documents by a trade rival necessarily destroys confidentiality once and for all will depend on the particular circumstances of the caseOn other occasions, depending on the nature of the confidential information, the undertakings and other circumstances, it perhaps can be said with a reasonable degree of confidence that confidentiality is likely to be preserved. 4) The Duty to Inquire and continuing discovery The solicitor of the party giving discovery has to explain the importance of the exercise and the gravity of making a false affidavit. In NSW, solicitor has to certify that s/he is unaware of any omissions- pt21.4. Before making the affidavit, the party must make all reasonable inquiries and searches- pt21.11(b).

[Re McGorm] Held: It was insufficient for a bankrupt to say that the could not list the documents because his trustee had them all. He had first to make reasonable inquiry of his trustee. If a document is overlooked, a supplementary affidavit should be filed, and a solicitor should refuse to continue acting if his/her client refuses to submit this affidavit. The duty to correct applies in cases when the affidavit was wrong at the time it was made, or where a party failed to disclose a document through mistake or lack of knowledge. For documents which are subsequently found, see pt21.6. The party must give written notice to the other side and make the document available as per normal discovery. 5) False affidavits Makers of false affidavits risk a perjury charge, or the charge of contempt of court. The court also has power to exclude evidence or give judgment to the wronged side. Depends on the seriousness of the breach. 6) Discovery against non-parties. This is when party A wants to sue someone, but isnt sure of the identity of the prospective defendant. See pt5.2. Steps for ascertaining a prospective Ds identity or whereabouts: 1) pt5.2(1)(a)- Applicant makes reasonable inquiries, but cannot find Ds identity or whereabouts for the purpose of commencing proceedings and 2) pt5.2(1)(b)- some other person may have information, or may have documents or things that would tent to assist in ascertaining Ds identity or whereabouts. 3) pt5.7(a) the applicant may apply for a court order, which must be supported by an affidavit and 4) pt5.7(b) must be served personally on the other person. 5) pt5.2(2)- The court may make the following orders: (a) an order that the other person attend court to be examined about Ds identity/whereabouts (b) an order that the other person give discovery to the applicant of all documents in his/her possession that relate to Ds identity or whereabouts. (c) an order that the person attend court to be examined and produces to the court on the examination any document in his/her possession that relates to Ds identity/whereabouts. 6) pt5.5- The other person does not need to comply, unless s/he has been paid conduct money beforehand. 7) pt5.6- If the other person incurs additional expense in complying, the balance must also be paid to them. 8) pt5.9 This rule applies where the applicant wishes to claim/cross-claim against a person who is not a party to the proceedings. The second type of pre-proceedings discovery is when the identity of the prospective D is known, but the applicant is not sure if a good cause of action exists. See pt5.3: Steps 1) pt5.3(1)(a)- if it appears to the court that the applicant might have a claim against prospective D, but having made reasonable inquiries, is unable to get enough information to decide whether to sue and 2) pt 5.3(1)(b)- the prospective D may have in his/her possession a document/thing which may assist applicant and 3) pt5.3(1)(c)- inspection of this doc would help applicant 4) The court can order discovery by the prospective D. 5) pt5.3(3)(a) + (b)This order must be accomanied by an affidavit, and served personally.

The third type of pre-proceedings discovery is where there already is an action proceeding, but there is someone (not a party to the action) who has documents relevant to an issue in proceedings. See pt5.4 Steps: 1) pt5.4(1)- The court may order that a person, who isnt a party, but who may have possession of a document that relates to any question in proceedings, must give discovery to the applicant of all documents in the persons possession that relate to that question. 2) pt5.4(2)(a) + (b)- must be supported by an affidavit and served personally. [Norwich] HL case Held: where a person, through no fault of his/her own, becomes innocently mixed up in some way in the wrongdoing of another, that person can be made a defendant in an action for discovery for the limited purpose of divulging the identity of the wrongdoer. This is called equitable discovery. However, this would be used very rarely. 7) Subpoenas Subpoenas were originally used to secure evidence for a hearing. The distinction between discovery and subpoenas is not very strong. See pt33.2, pt33.4 A subpoena or order to produce describes the subject documents in a way which the person to whom it is directed can understand without knowing anything about the case The description of the documents can be very wide (eg., all financial records of NGTT Pty Ltd for the period ABC) provided that it is neither oppressive nor too difficult to understand Discovery requires party to list all documents relevant to the dispute the party giving discovery has to know whaqt issues are in dispute and then form a judgment about the relationship of documents to those issues Conduct Money = small sum tendered when the subpoena is served to cover any transport costs to the court and back (party has to pay the person subpoenaed)

Subpoena v Discovery A subpoena duces tecum is a writ issued by the court upon application by a party. It commands a person to whom it is directed to attend before the court and to search for and produce to the court documents relating to the cause or matter. Pre-emptive order, which attracts a fine if non-compliant A subpoena ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger should not be required to go to trouble and expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant : [Lee v Angas];[ Burchard v Macfarlane] They may apply to the court to set it aside Discovery and inspection of documents is a pre-trial procedure to ascertain the existence, nature and contents of relevant documents. It is subject to the control of the court and the court can determine matters such as the validity of objection to production for inspection and generally enforce the duty to make disclosure and grant inspection. 8) Interrogatories Interrogatories are written questions served on the opposing party, which are answered by oath or affirmations. Admissions in a partys answers to interrogatories are admissable in evidence, but they are not binding. The party who made them can attempt to explain them away or contradict them [Gannon]. They are rapidly becoming a rarity in most places, a measure of last resort and, even then, only where they are

obviously necessary. This is a very costly procedure. See pt22. Interrogatories may still be useful in pretrial procedures in aid of settlement, and can be useful where the information in issue is in the exclusive possession of the opposing party. 9) Medical Examinations See pt23.1 for legislation regarding medicals. The Courts have emphasised that they will order medicals only if the procedure is reasonable in the circumstances. Reasonable can sometimes include fairly invasive procedures. It can also include multiple examinations by a series of specialists [Turvey]. It seems that the party insisting on his or her opponent submitting to a procedure bears the burden of proving that it is a reasonable procedure [Stace].

CLASS 9.1
Uniform Civil Procedure Rules 2005
pt5.2 Discovery to ascertain prospective defendants identity or whereabouts (1) This rule applies if it appears to the court that: (a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned. (2) The court may make either or both of the following orders against the other person: (a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned, (b) an order that the other person msut give discovery to the applicant of all doceuments that are or have been in the other persons possession and that relate to the identity or whereabouts of the person concerned. (3) A court that makes an order for examination under subrule (2)(a) may also make either or both of the following orders: (a) an order that the other person must produce to the court on the examination any document or thing that is in the other persons possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tended to the person a reasonable time before the date on which attendance is required. (6) If a person incurs expense of loss in complying with an order under subrule(2)(a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss. (7) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the other person. pt5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the persons possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. (3) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. pt5.4 Discovery of documents from other persons (1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the persons possession and that relate to that question. (2) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. pt21.6 Subsequently found documents to be made available - If at any time after party Bs affidavit is made, and before the end of the hearing, party B becomes aware: (a) that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party Bs possession, or (b) that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document, party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of notice. pt21.7 Discovered documents not to be disclosed Discovered documents only to used for the purposes of the conduct of proceedings, unless the document has been received into evidence in open court. This does not affect the power of the Court to make orders as it thinks fit. pt22.1 Interrogatories (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, Such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of an order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. (5) An order to answer interrogatories: (a) may require the answers to be given within a specified time, and (b) may require the answers, or any of them, to be verified by affidavit pt22.2 Objections to specific interrogatories A party may not object to being ordered to answer an interrogatory except on the following grounds: (a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order, (b) the interrogatory is vexatious or oppressive, (c) the answer to the interrogatory could disclose privileged information.

pt22.3 Answers to interrogatories (1) A party who has been ordered to answer interrogatories msut do so within the time required by the order by serving a statement of answers on all other active parties. (2) Such a statement: (a) must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and (b) must answer the substance of each interrogatory without evasion, and (c) to the extent to which, and in the manner in which, the order requires, must be verified by affidavit. pt22.4 Insufficient Answer (1) If a party who has been ordered to answer interrogatories under rule 22.1 fails to answer an interrogatory sufficiently within the time specified in the order or, if no such time is specified, within 28 days after being served with the order, the court: (a) may order the party to make a further answer, and to verigy that further answer by affidavit, or (b) may order the party or, as the case requires, any person of the kind referred to in rule 35.3(1), to attend to be orally examined. pt22.5 Default (1) If a party who has been ordered to answer interrogatories under rule 22.1 or 22.4 fails to answer an interrogatory sufficiently, the court may give or make such judgment or such order as it thinks fit, including: (a) if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or (b) if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the partys defence be struck out. pt 22.6 Answers to interrogatories as evidence (1) A party: (a) may tender as evidence one or more answers to interrogatories without tendering the others, and (b) may tender as evidence part of an answer to an interrogatory without tending the whole of the answer pt23.1 Application and definitions (1) This Division applies to proceedings in which: (a) a persons physical or mental condition is relevant to a matter in question, and (b) either: (i) that person is a party pt23.2 Notice for medical examination (1) Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned. (2) A notice for medical examination is to be in the form of a request that the person concerned submit to examination by a specified medical expert at a specified time and place. pt23.2 Expenses - A party who serves a notice for medical examination must, on request by the first party, pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination, including the expense of having a medical expert chosen by the person attend the examination. pt23.4 Order for examination

(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for ther purposes of the examination. pt23.5 Medical expert for person concerned - The person concerned may have a medical expert of his or her choice attend a medical examination under this Division. pt33.2 Issuing of subpoena (1) The court may, in any proceedings, by subpoena order the addressee: (a) to attend to give evidence as directed by the subpoena, or (b) to produce the subpoena of a copy of it and any document or thing as directed by the subpoena, or (c) to do both of those things. (2) The issuing officer must seal with the seal of the court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. pt33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

CLASS 10
Privilege
1) Introduction Why do we have privilege? - Society values particular relationships- tension between Cts. When can claims for privilege arise? - At pre-trial interlocutary stage and also at trial [Young] Held: Balancing exercise between the need for valuable information and protecting confidential relationship. Governed by Uniform Evidence Act- also applies to pre-trial context. 2) Procedure for a claim of Privilege s132 of EA- a judge should alert the parties if s/he claims there is a potential claim for privilege. This means the judge does not have to wait for parties to bring it up if s/he sees the issue coming up. s142- The person claiming privilege must prove it on the legal balance of probabilities. However, if other side claims privilege has been displaced, burden shifts. s133- The Ct can inspect the document in deciding if a claim of privilege can be upheld. pt3.10 of EA- claims of privilege. - If under these tests, the evidence cant be adduced, it makes it inadmissable (s134) in the proceedings. 3) Professional Privilege This section does not include legal professional privilege, which applies only to lawyers. Should this privilege be extended to apply to other professions? eg. doctors s126B(1)- The Ct may direct that evidence not be adduced if it would invoke a protected confidence/identity (definition in s126A). s126B(3)- when Ct must give a direction if satisfied that likely harm caused to protected complier if greater benefits to Court from having evidence adduced. s126B(4)- considerations Ct can take into account: probative value, harm caused, whether substance of it has already been disclosed. s126B(5)- Ct must put in writing its reasons for decision. - Remember, Ct looks at harm to protected confider NOT public interest. 4) Communication to Sexual Assault Counsellors - Because of displaced blame victims feel. - Counsellor less inclined to write comprehensive notes if it could be subpoenad. - This is also the most under-reported crime- need to encourage victims to report - Criminal Procedure Act: s295, 296, 297, 298. Treats the committal stage differently to hearing stage. - Committal stage- cant require counsellors to provide documents. - Hearing stage- Ct inspects and looks at probative value which cant otherwise be provided and if public interest in confidentiality substantially outweighs public interest in disclosure. 5) Other privileges - Religious confession s127 EA- confined to religious confessions. Privilege holder is the religious official, not the person who made the confession.

- Familial s18 EA. Ct has discretion not to compel witnesses to testify for prosecution against their parent/child/spouse. Ct sees if it can get evidence from someone else, gravity of offence, and need for evidence, harm done to person/relationship if evidence is revealed. - Privilege against self-incrimination- s128. You dont have to answer questions/produce documents which could convict you criminally or civilly (unless it is a private civil matter where damages are claimed eg. negligence). This can be overcome by giving person a certificate says that the answer, or material provided by the answer, will not be used (does not apply to corporations). - Rationale - burden on the prosecution - also a human right and because of imbalance between gov and individual. - When does it not apply? ss7- does not apply in criminal cases in terms of that evidence being false, or if it would be an admission of guilt ss8. - s128(2)- reasonable grounds needed for objection. [Bikic] Facts: Where witness had been convicted and documents would not have been relevant to the appeal. The grounds were not reasonable because a) no time to appeal and b) would not have helped appeal anyway. If there are reasonable grounds, witness does not have to give evidence, but if they do, they will receive a certificate and thirdly, the effect of the certificate. If no reasonable grounds and evidence given, but after evidence is given it turns out that the grounds were reasonable, they will be given a certificate ss4- retrospective certificate. ss5- can override the privilege- if in interests of justice, does not relate to offence in foreign country etc. If they overrule, must give certificate ss6. 6) 3 Situations when you get certificate ss2- reasonable grounds for objection ss3- when Ct says no grounds, then realises there were grounds ss4- when Ct thinks interests of justice demand disclosure (ss6 says certificate must be given). (s128(1)- what evidence it applies to) 7) Effect of Certificate ss7- what a certificate does- evidence given, and anything given in connection with evidence, cannot be usedevidence will have to be gotten another way. 8) Exclusion of Evidence in the Public Interest 1) Settlement negotiations- why are they privileged? You could not be so open on facts if worried about evidence being used against you in Ct. Also, Calderbank letters. Rationale: Encourages ppl to settle, which means less cost/delay/stress 2) s131 of EA: (1)- when evidence is not to be adduced (1)(a)- negotiations between parties (covers Calderbank) (1)(b)- a document which has been prepared with attempt to negotiate a settlement (covers preparation for mediation). 3) ss2- Where privilege wont apply ss(2)(h)- liability of costs - if its been waived - if consent of parties to disclose information

- if information already has been disclosed. Types of matters it will apply to (doesnt apply to litigated matter): - letter of demand - not just to letters etc between parties but letters from a party to a mediator 9) State Matters - Associated with gove communications- customs, AVOs, Aboriginal secrets. - s130- Requires a dimension which is governmental in character. Difference between a class claim (type of document) and a contents claim (specific document). ss4 + ss5 factors Ct considers in balancing exercise- weigh up public interest of disclosure with public interest of non disclosure. [Chapman] Facts: Secret Womens Business- a proper function of government to protect Aboriginal culture and heritage vs info that could be relevant and important. Ct: Allowed disclosure in restricted circumstances: off camera, with femal lawyers and not male lawyers. [Northern Land Council] Ct: Looked at rationale for this privilege and the docs sought in this case were notebooks from Cabinet. Ct held that when documents part of a class which attracts immunity, Ct will lean against granting disclosure, but in sufficient circumstances (depending on facts of the case) can override. The public interest in preventing serious damage to proper working of government at the higher level prevailed over private individual. At any rate, documents did not appear crucial to the Councils claim. They did not even allow inspection in this case.