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Civil Notes Marie 1

Civil Notes Marie 1

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Published by 18Berna1

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Published by: 18Berna1 on Nov 13, 2012
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summaryPage 1 of 94
Chapter 1: Introduction to Civil Procedure1.20 Procedural Law
x
 
Procedural law is law that governs the conduct of proceedings before the court
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Distinguished from substantive law which is defines legal rights, duties, powers and liabilities1.30 Sources of Substantive LawSources of procedural law in NSW Supreme, District and Local Courts are mainly found in the CivilProcedure Act 2005 (NSW) and the Uniform Civil Procedure RegulationsCPA provides that Uniform Rules Committee may make rules that are consistent with the Civil CPA
 ʹ
ss 8, 9Some procedural Rules are found in court rules: Supreme Court Rules 1970, District Court Rules1973, Local Court Rules 1982
 ʹ
 Courts can issue practice notesRules of evidence are found in Evidence Act 1995 (NSW)1.40 Guiding Principles for Procedure
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S56
 ʹ
Overriding purpose of this Act and the rules of the court in application to civilproceedings is to facilitate the just, quick and cheap resolution of real issues in proceedings
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S56 - (4) A party to is to assist the court on this overriding purpose and a lawyer must notbreach this duty
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S58 - To court is to act in accordance with the dictates of justice in deciding any matters(orders, directions)
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The dictates of justice are determined in a particular case by having regard to the overringpurpose and objects of case management (ss 56, 57) and matters in s 58(2)(b).
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S59
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the court is to implement practices to eliminate lapse of time betweencommencement of proceedings and final dterminaiotn beyond that which is reasonablyrequired for the interlocutory activities necessary for the fair and just determination of theissues in dispute and preparation of case for trail
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S60
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court implement practice to make costs proportionate to importance and complexityof subject matter1.50
 
summaryPage 2 of 94
Austrian is an adversarial model of litigation:
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Party controlled dispute
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Use of precedent, procedural rules, laws of evidence,
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Judge is impartial and is reactive
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Reliance on orality
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Trial is climatic end of litigation process
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Use of trial transcript for appealInquisitorial model
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Judges role is proactive and inquisitive
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Main sources of law are codes with commentary from legal scholars
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Minimal rules of courtroom practice
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Emphasis is on documentary proof not cross-examination
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No rigid separation between trial and pre-trial phases
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No use of transcript1.60Article explaining the adversarial and Inquisitorial models in more detail1.65
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There has been criticism of adversarial model as it prevents justice due to costs and delay,also unjust, unequal and inaccurate results
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Resulted in major review in England and Wales by Lord Woolf 
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tŽŽůĨ͛ƐĨŝŶĚŝŶŐǁĂƐƚŚĂƚƵŶƌĞƐƚƌĂŝŶĞĚĂĚǀĞƌƐĂƌŝĂůĐƵůƚƵƌĞƌĞƐƚƌŝĐƚĞĚĂĐĐĞƐƐƚŽũƵƐƚŝĐĞ
 
x
 
tŽŽůĨ͛ƐƌĞǀŝĞǁƌĞĐŽŵŵĞŶĚĞĚƌĞĨŽƌŵƐ͗
 
¾
 
Greter use of ADR
¾
 
Single expert witnesses
¾
 
Reduction of issues for case preparation...
x
 
Resulted in Australian law Reform Commission conducting its own inquiry1.70 Victorian Law Reform Commission, Civil Justice Review: Report 14 (2008) p 71Funding is a critical factor affecting the operation of civil justice systemGovernments cannot be expected to provide unlimited public funds for adjudication of disputes,particularly ones without significance beyond interest of individual paritiesProfessor Zickerman
 
summaryPage 3 of 94
Funding should be commensurate with available resources and importance of benefits it can deliverTest for adequacy: Efficient, efficient and fairService is efficient if it meets expectations of communityEfficient if resources are used to maximise benefit out and not wasted on unproductive activitiesA service is fair if resources are distributed evenlyApplication to courtsEfficient if determines claims with reasonable accuracy, within reasonable time and proportionateinvestment of resourcesEfficient is resources are employed to maximise effectiveness and are not wasted unnecessarilyFair it resources are distributed evenly
͞dƌƵƚŚ͘͘͘ƉƵƌƐƵĞĚƚŽŽŬĞĞŶůLJʹ
 
ŵĂLJĐŽƐƚƚŽŽŵƵĐŚ͟ʹ
Knight Bruce VC1.80 Principal of Open JusticeJohn Fairfax Publications Pty Ltd v District Court of NSW (2004)
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Open justice is one of most fundamental aspects of justice in Australia...There is no inherentpower of courts to exclude publicR v Richards & Bikerk (1999)Justice must not only be done but seen to be done
 ʹ
R v Sussex; Ex parte McCarthy
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Courts should be open to all, so anyone wishes to see how justice is done. No privileges toanyone, even those who report it
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It is only in exceptional circumstance where presence of public will death paramount duty of courts by courts proceed in cameraJohn Fairfax Publications Pty Ltd v Local Court of NSW (1991)
x
 
Departure from that only if really necessary to achieve administration of justice
x
 
This is when consequences follow and they are unacceptable
x
 
Examples are hardship on informers or blackmail victims, would be harder to get them tocome to trial

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