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Civil Procedure Exam Notes

LAW5104

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1) INTRODUCTION ............................................................................................................ 4
Overview of Court Adjudication under Adversarial System................................................................4
the courts.......................................................................................................................................... 5
JUDICIAL ROLE AND CASE MANAGEMENT.......................................................................................................... 5
COSTS..................................................................................................................................................... 6
Case Study: Gunns Lt vs. Marr & Ors.............................................................................................................. 6
McLibel Case................................................................................................................................................... 8

Challenging Case Management Decisions on Appeal.........................................................................8


2) ALTERNATIVE DISPUTE RESOLUTION..............................................................................9
A) INTRODUCTION...................................................................................................................................... 9
B)

Growth of ADR................................................................................................................................... 9
MODELS OF ADR................................................................................................................................... 9
Determinative Processes................................................................................................................................ 9
Facilitative Processes.................................................................................................................................... 10

C)

ARBITRATION....................................................................................................................................... 11
MEDIATION......................................................................................................................................... 11
Issues with Mediation: power imbalances........................................................................................ 12
E) COURT-ANNEXED ADR......................................................................................................................... 12
Supreme Court:................................................................................................................................ 12
County Court: .................................................................................................................................. 13
Magistrates Court: ......................................................................................................................... 14
F) LAWYERS & ADR................................................................................................................................ 14
D)

3) JURISDICTION.............................................................................................................. 14
INTRODUCTION......................................................................................................................................... 14

SUBJECT MATTER JURISDICTION................................................................................................................... 16


TERRITORIAL JURISDICTION......................................................................................................................... 22
Areas of jurisdiction......................................................................................................................... 22
Territorial Jurisdiction....................................................................................................................... 22
FORUM NON CONVENIENS (OVERLAP BETWEEN COUNTRIES)............................................................................23
CROSS-VESTING OF JURISIDCTION (MOVING FROM STATE TO STATE, STATE TO FED, FED TO STATE)..........................25
1.Vesting/Conferral of JURISDICTION................................................................................................ 26
2.Transfer of proceedings................................................................................................................ 26
4) INSTITUTING PROCEEDINGS.........................................................................................30
A)

CLIENT MANAGEMENT........................................................................................................................... 30
LETTERS OF DEMAND: PLAINTIFF............................................................................................................. 31
C) STANDING: PLAINTIFF............................................................................................................................ 32
CAPACITY: BOTH PARTIES.......................................................................................................................... 34
B)

Description of proceedings brought by a litigation guardian......................................................................... 35


Description of proceedings brought by a partnership................................................................................... 36
OVERARCHING OBLIGATIONS (CIVIL PROCEDURE ACT

2010)..............................................................................36
ORIGINATING PROCESS.............................................................................................................................. 38
General re Originating Process........................................................................................................ 38
Writ.................................................................................................................................................. 38
Originating Motion........................................................................................................................... 41
Failure to Comply............................................................................................................................. 41
CAUSES OF ACTION & LIMITATION OF ACTIONS...............................................................................................42
Third Parties................................................................................................................................................. 60

AMENDMENT, ADDITION, SUBTRACT, REMOVE AFTER WRIT IS FILED.....................................................................63


Amendments: order 36.................................................................................................................... 63
Addition, substitution and removal: order 9.....................................................................................64
CONSOLIDATION....................................................................................................................................... 65
AMICUS CURIAE AND INTERVENERS.............................................................................................................. 65
interveners (Seeks to join the proceeding)......................................................................................65
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Amicus Curiae (friend of the court who is not a party).....................................................................66


6) REPRESENTATIVE PROCEEDINGS (GROUPS AS PARTIES)................................................68
SAME INTEREST PROCEEDINGS................................................................................................................. 68
CLASS ACTIONS....................................................................................................................................... 71
Federal Court: Opt-Out Proceedings (federal Court Act Part IVA).....................................................71
Supreme Court Opt Out Proceedings: same rules apply................................................................75
7) SERVICE ..................................................................................................................... 76
SPECIAL PARTIES...................................................................................................................................... 77
Corporations.................................................................................................................................... 77
Foreign Corporations....................................................................................................................... 77
Minors.............................................................................................................................................. 77
Handicapped Persons...................................................................................................................... 77
Commonwealth Government........................................................................................................... 77
Victorian Government...................................................................................................................... 77
Partnerships..................................................................................................................................... 77
Motor Vehicle Injuries..................................................................................................................... 78
PERSONAL SERVICE.................................................................................................................................. 78
ORDINARY SERVICE.................................................................................................................................. 80
SUBSTITUTED SERVICE........................................................................................................................ 81
PROOF OF SERVICE................................................................................................................................... 82
SERVICE OUT OF THE JURISDICTION.................................................................................................... 83
8) APPEARANCE.............................................................................................................. 85
INTRODUCTION TO APPEARANCE.................................................................................................................. 85
DEFENDANTS OPTIONS AFTER BEING SERVED...................................................................................86
Do Nothing....................................................................................................................................... 87
Unconditional appearance............................................................................................................... 87
Conditional Appearance................................................................................................................... 87
9) PLEADINGS................................................................................................................. 89
INTRO CRAP............................................................................................................................................ 89
PROCEDURE............................................................................................................................................ 90
FORMAL REQUIREMENTS AND CONTENT......................................................................................................... 90
PARTICULARS.......................................................................................................................................... 91
SPECIFIC TYPES OF PLEADINGS.................................................................................................................... 92
Statement of claim.......................................................................................................................... 92
Defence........................................................................................................................................... 93
Set-off & Counterclaim..................................................................................................................... 95
reply................................................................................................................................................ 96
Pleadings after the reply.................................................................................................................. 96
CHALLENGES AND OBJECTIONS.................................................................................................................... 96
AMENDMENT........................................................................................................................................... 97
ETHICAL OBLIGATIONS (ONLY IF RELEVANT ON EXAM).......................................................................................98
10) METHODS OF GATHERING EVIDENCE.........................................................................101
DISCOVERY........................................................................................................................................... 101
Intro crap....................................................................................................................................... 101
notice for discovery....................................................................................................................... 102
affidavit of documents making discovery....................................................................................102
inspection of documents................................................................................................................ 107
Default in Discovery....................................................................................................................... 108
Document destruction................................................................................................................... 108
NON-PARTY AND PRELIMINARY DISCOVERY.................................................................................................. 110
Discovery to Identify a Defendant.................................................................................................. 110

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discovery of a Prospective Defendant............................................................................................ 110


discovery From a non-party........................................................................................................... 111
INTERROGATORIES, NOTICES TO ADMIT, SUBPOENAS......................................................................................112
Interrogatories............................................................................................................................... 112
Notices to admit............................................................................................................................ 114
Subpoenas..................................................................................................................................... 116
11) INTERLOCUTORY PROCEDURE...................................................................................118
INTRO CRAP.......................................................................................................................................... 118
INJUNCTIONS......................................................................................................................................... 120
SEARCH ORDERS (ANTON PILLER ORDERS)...............................................................................................121
FREEZING ORDERS (MAREVA INJUNCTIONS)............................................................................................... 122
SECURITY FOR COSTS (LOOK FOR POSSIBLE P INSOLVENCY)............................................................................124
12A) DISPOSITION WITHOUT TRIAL................................................................................126
SUMMARY DISPOSITION........................................................................................................................... 126
Default Judgment........................................................................................................................... 126
Summary Judgment....................................................................................................................... 128
DISMISSAL FOR WANT OF PROSECUTION: INHERENT JURISDICTION.....................................................................132
DISCONTINUANCE AND WITHDRAWAL.......................................................................................................... 134
VEXATIOUS LITIGANT.............................................................................................................................. 135
12B) FACILITATING SETTLEMENT....................................................................................136
INFORMAL SETTLEMENT........................................................................................................................... 136
FORMAL SETTLEMENT: OFFERS OF COMPROMISE...........................................................................................136
13) TRIAL ..................................................................................................................... 139
TRIAL................................................................................................................................................... 139
Case Management Timeline........................................................................................................... 141
14) COSTS.................................................................................................................... 143
INTRODUCTION...................................................................................................................................... 143
TYPES OF COSTS & THE COST INDEMNITY RULE............................................................................................ 145
Exceptions to the Costs Indemnity Rules.......................................................................................147
COSTS ORDERS AGAINST LAWYERS............................................................................................................ 150
COSTS FOR INTERLOCUTORY HEARINGS AND SATELLITE LITIGATION...................................................................151
MULTIPLE PARTY COST ORDERS................................................................................................................. 151
P succeeds on claim, D succeeds on counterclaim........................................................................151
Where claim succeeds against one D and fails against another....................................................153
QUANTUM OF COSTS.............................................................................................................................. 154
15) ENFORCEMENT........................................................................................................ 155
GENERAL INFO ON ENFORCY.................................................................................................................... 155
STAY OF ENFORCEMENT........................................................................................................................... 156
MODES OF ENFORCEMENT....................................................................................................................... 156

1) INTRODUCTION
OVERVIEW OF COURT ADJUDICATION UNDER ADVERSARIAL SYSTEM

Civil system still predominantly based upon the adversarial system


o

Increasing interest in alternative dispute resolution excessive delays and costs

Procedural Law governs conduct of proceedings before the court

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Rules which regulate formal adjudication of civil disputes

INTERDEPENDENCE OF SUBSTANCE AND PROCEDURE

Adjectival qualify substantive rights


o

Regulate the way substantive rights and obligations are claimed

Subjection to substantive law is involuntary whereas recourse to procedural is voluntary

Substantive law is self-executing, whereas procedural law creates choices for parties

THE COURTS

Each superior (Supreme) Court is intermediate appeal court & body primarily entrusted with
supervision of state/territory law - Have General Jurisdiction

Most cases are not heard in front of a court


o

Majority of cases that make it to court are abandoned, withdrawn or settlement (1.2.2E)

JUDICIAL ROLE AND CASE MANAGEMENT

Parties are left to conduct proceeding; judges assume a passive role, intervening only if the nondelinquent party seeks the imposition of sanctions.
o

Judicial neutrality is critical to adversarial model; methodology about ascertainment of


truth

Case Management (Caseflow and caseload)


o

Early resolution of disputes

Enhanced public accountability

Monitoring of caseloads

Reduction of trial time etc. (1.9.2E)

Court involved in management of the progress of proceeding from commencement to conclusion


o

Shift away from adversarial model

KEY EXAMPLE: THE LIST SYSTEM

Division of court workload (cases) into lists (groups) overseen by a particular judge/associate
judge
o

Commercial List intensively case managed

Major torts Associate judge manages interlocutory stages until case is ready for trial
(handed to civil list)

Specialty lists: Admiralty, building, corporations, IP, planning, tax appeals

Varying degrees of case management

Costs fee to join the lists (approx $2500) but save this in terms of the delays which are avoided

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All civil cases are part of the Civil Management List

Directions Hearing: No clients; just legal reps master/associate judge makes a decision, get
case to move forward

COSTS

Sum of money party may recover from the other side of reimbursement of particular expenses
incurred in litigation
o Money that a party may recover from opponent in litigation for reimbursement of
particular expenses incurred in litigation
Costs indemnify a party for the cost of litigation
o reasonable and necessary expenses
o discipline parties and encourage/promote settlement
Promoting settlement may hurt justice because you could lose regardless of how
good your case is.
Can discipline parties to behave, or punish them for misbehaving
Weeds out & avoids weak litigation (prevents crap vexatious, frivolous lawsuits).
But can undermine access to justice. Never get awarded more than 2/3 legal costs.

o
o

LITIGATION COST RULES

Disciplinary cost orders cost orders used by a tribunal/court to enforce control of litigation
process

Allow court to enforce its control of the litigation process.

Allows efficient use of resources in courts. Courts can deal with


o

Unnecessary or unduly expensive procedures

Claims/defences that are unreasonable/frivolous/vexatious

Matters argued in wrong jurisdiction/ wrong forum for dispute resolution

CASE STUDY: GUNNS LT VS. MARR & ORS

Applied to build new pulp mill at the same they commenced legal proceedings
o

Sued 20 Defendants in the Victorian Supreme Court including

Wilderness Society (Alex Maher), Doctors for Native Forests, Senator Bob Brown

Statement of Claim to notify other party why they are being sued
o

216 pages long excessive: 200 pages of reasons for which they were suing individual
defendants.

Was not clear what they were suing for, but it appeared to boil down to the defendants
being involved in a conspiracy to injure them and interfered with Gunns trade by
unlawful means

Claimed they suffered general damage $1.1m


damages

and $5.2m in aggravated/exemplary

LAW REPORT INTERVIEW WITH SENATOR BOB BROWN

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Question: Now Gunns is alleging that you and the other members of Greens engaged in a number of
activities, corporate vilification, interference with contracts, disruption of logging and woodchip
operations, campaigns against shareholders, investors and banks. Lets talk about where you draw the
line between legitimate civil disobedience, and what constitutes damage to lawful, economical
commercial activity. Theyre saying youve done things like conduct campaigns to convince clients of
Gunns in Japan and Belgium to boycott their products.
Answer: Yes, well, theres a long history of boycott against destructive activities, very often for human
rights reasons. We were, in Australia, in turmoil 20 or 30 yrs ago about boycotting South Africa because
of apartheid, and of course many people think we should be much more judicious in looking at boycotts
of China because of whats happening in Tibet, and so on it goes. But the legitimate rights of people
everywhere on this planet to stand up for what they think is wrong cant be taken away if youre going
to have a healthy democracy. And the woodchipping industry in Tasmania, which at its worst, the rate
of destruction now is the greatest in history; this year approx 150,000 log truck loads will go to the
woodchip mills for export to Japan, China, Korea and the great majority of that is through this ugly
company called Gunns Pty Ltd. And I say ugly there because Mr Gay might think thats vilification, but
you only have to look at whats happening to the magnificent forests of Tasmania and the wildlife after
the loggers for Gunns have been through, and you see total devastation: just rising smoke, no life, no
fin, no feather, nothing left alive. And its unnecessary industry, this is.

Legitimate action? Or doing it to bankrupt companies opposing Gunns


o

Unclear/difficult document

Trying to bankrupt the company

Tie them up in litigation

Intimidate so that people dont take similar action

SLAPP Writ - Strategic Litigation Against Public Participation


o

Julian Burnside: This statement of claim is the size of a novel, although it doesn't read so
well. This trial will not take less than a year. Gunns acting "to warn off individuals who
might want to protest

2nd Version of Statement of Claim


o

Defendants extremely worried about the excessive costs

360 pages long and more convoluted than the first one

Bongiorno J struck them both out. Gave them 4 weeks to come up with a new one
o

3rd version 221 pages long - struck out again

Gave them time to do a 4th one improved version: 3 separate statements of claim (3
proceedings)

Dropped number of defendants 3 claims


relations

and 15 defendants interference with K

Gunns v Maher Triabunna against 7 D, 44 pages

Lucastown Hampshire and Styx against 3 D, 79 pages long

Burnie Woodchip Pile defamation; against doctor (woodchip pile- poss of


legionnaires)

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ACT enacted Australias first anti-SLAPP legislation in response to such cases

How much should we be willing to sacrifice the courts (justice system) for long drawn-out cases?

MCLIBEL CASE

McDonalds bought against a postman and gardener


o

Were standing outside a McDonalds, handing out pamphlets

Britains longest ever trial 2 years in court


o

Huge action McDonalds won but got $34,000 and over $10m in costs

Did it to stop people protesting against their business

Was a huge PR disaster SuperSize Me & huge backlash

Evidence i.e. Recipe for the process of chicken nuggets (McFrankensteins Monsters)

CRISIS? WHAT CRISIS?

Mid 1980s: Procedural matters considered lower concern than doing justice on the merits.

Resulted in:
o large delays in courts; and
o high cost of litigation
o Led to rise in case management
Need to strike a balance between the pursuit of justice/truth and efficient distribution of justice.
State provides a legal/justice service. Inefficient if every case is vehemently pursued. Must be
done so to be proportional with money involved, importance, public interest etc.
LORD WOOLF MR:

the litigation process is too often seen as a battlefield where no rules apply. In this environment,
questions of expense, delay, compromise & fairness may have only low priority. The
consequence is that expense is often excessive, disproportionate & unpredictable; & delay is
frequently unreasonable

Woolf
o
o
o
o
o
o
o
o

on what system needs:


to be just in the results it delivers
to be fair in the way it treats litigants
to offer procedures & costs proportionate to nature of issues involved
deal with cases with reasonable speed
be understandable to those who use it
be responsive to the needs of those who use it
provide as much certainty as the nature of the particular case allows, and
be effective, adequately resourced and organised so as to give effect to 1-7.

CHALLENGING CASE MANAGEMENT DECISIONS ON APPEAL

Sali v SPC Ltd (1993): the HC said that the FC was entitled to regard the appellants
application as mere delaying tactics and so there was no warrant for granting any adjournment.
Thus, the judge is entitled to consider the effect of an adjournment upon court resources and the
competing claims by litigants in other cases awaiting hearing.
Queensland v JL Holdings Pty Ltd (1997), more recently the HC has placed greater
emphasis upon justice between the immediate parties to litigation when considering the efficacy
of case management sanctions
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2) ALTERNATIVE DISPUTE RESOLUTION


A) INTRODUCTION

Need for methods other than litigation to resolve disputes


o

Growth of mediation (and arbitration) in Australia

Litigation is dispute resolution where parties fight to regain lost territory/rights


o

Strategies and tactics become predominant focus

Defensive and hostile methods

Litigation only deals with legal issues: Doesnt look at broader conceptions of justice, etc.

GROWTH OF ADR

Issues with accessibility and equity within the legal system


o

Effect upon parties relationship due to adversarial processes and determination of a


winner

Shortfalls in negotiated settlement lawyers often dont maximize clients outcome

Risk, unpredictability, delay and costs

Courts concerned with legal rights rather than durable solutions to disputes

Parties relationships often irrevocably damaged

Confucian thought holds that going to court is a failure: a failure by the parties in not having regulated
their conduct between, a failure in not being able to resolve their differences themselves and in having
to resort to a third party to adjudicate. Recourse to law is something shameful Gladwell
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 (VIC) S24(1)

Everyone has right to have a dispute decided by a competent, impartial court or tribunal after a
fair and public hearing

B) MODELS OF ADR

Arbitration, mediation, conciliation, facilitation and early neutral evaluation


o

Hybrid processes as well: expert determination, private judging, fact-finding

DETERMINATIVE PROCESSES
ENFORCEABLE
ADJUDICATION

Judicial/administrative process in which parties present arguments/evidence to DR practitioner


o

Often within traditional judicial system courts, tribunals

ARBITRATION

Quasi-judicial; Less formal than litigation; Rules of evidence relaxed

Most commonly used in commercial, construction, labour and international trade disputes

Submission of dispute to third party (arbitrator)

Renders award after hearing arguments and reviewing evidence

Determination is usually binding only reviewable on limited grounds

No precedential effect

EXPERT DETERMINATION

Independent expert appointed to make binding determination on some disputed facts/issues

Hears arguments and evidence from parties


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Chosen on basis of specialist qualification or experience in subject matter

Parties determine the process often experts role includes investigation and inquiry

Expert Appraisal very similar but opinion given is advisory rather than determinative

PRIVATE JUDGING

Parties present arguments and evidence to private (usually retired) judge

Determination made based on what they believe would be most likely decision if matter went to
court

Reasonably formal and adversarial

Decision is binding on parties reviewable by court based on errors of law

NON ENFORCEABLE
FACT-FINDING

Parties to a dispute present arguments and evidence to DR practitioner

Makes determination as to facts but no finding or recommendations as to outcomes

EARLY NEUTRAL EVALUATION

Process in which parties present arguments and evidence at early stage in dispute

Evaluator usually QC or SC

May then encourage parties to settle matter by consensus

If no settlement, evaluator will make determination on key issues in dispute & likely outcome if
went to trial

FACILITATIVE PROCESSES
CONCILIATION

Assistance of conciliator identifies disputed issues, develops options/alternatives and endeavors


to reach an agreement

Conciliator has advisory but not determinative role

Obliged to advocate rules and standards promoted by the agency empowered to make
suggestions as to terms of settlement, bearing in mind that conformity is important

FACILITATION

Facilitated negotiation

Mediator a process facilitator

No set procedure can be adapted to the dispute/parties

Mediator will not express opinions/ offer advice to the disputants

Confidential process

No resolution without parties consent

Collaborative process parties (group) with assistance of neutral third party

Facilitator identifies problems to be solved, tasks to be accomplished or issues to be resolved

No advisory or determinative role on content of matters discussed

MEDIATION

Process of facilitated negotiation with assistance of neutral third party

Identifies issues, develops options, considers alternatives and endeavors to reach agreement

No advisory or determinative role and cannot impose decision or result on parties

Mediator is there to facilitate or assist parties to reach own agreement, but can determine how
process will be conducted (structured/systematic process)

OMBUDSMEN

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Impartial third party who investigates complaints against an institution by its constituents,
clients or employees.

Make take action i.e. bringing injustice to attention of higher level officials etc.

Advises complainant of all options and resources, propose settlement etc.

In Australia, all jurisdictions have position of ombudsman to investigate complaints against state
agencies and officials.

C) ARBITRATION

Has become a quasi-judicial process

Less formal than litigation

Arbitrator hears arguments and evidence, renders a determination (award) binding upon parties

Bilateral adversarial process requires consent of parties

FEATURES

Can be conducted under court-annexed scheme, legislation or private agreement between


parties

Courts: early resolution of disputes

Arbitration agreement: Non-interventionalist environment for business/commercial disputes

Required by statute: settlement of certain disputes

D) MEDIATION

General process to mediation but schemes demonstrate marked variations in how process
implemented
o

Different opinions i.e. whether should meet with parties privately etc.

Flexible and private nature of mediation, different training/characteristics, range of disputes =


Variation.

ACCESSIBILITY

Any dispute can be referred to mediation AND parties are directly involved in process

Direct participation important part of process

However face-to-face mediation generally not available as part of industry-based ADR


processes (i.e. mostly written processes etc.)

Extent of party participation is also affected by approach and imbalances, time


limitations and presence of professional advisers (lawyers)

Not all cases appropriate for mediation


o

When definitive/authoritative decision require for precedential value

Matter significantly affects persons or organizations who arent party to ADR processes

Need for public sanctioning of conduct or where repetitive violations of statutes and
regulations need to be dealt with collectively/uniformly

Parties not able to negotiate effectively between themselves

History of family violence

VOLUNTARY

In best-case scenario, this is key advantage of process

Consensual participation is fundamental assumption of mediation


o

May be compelled, directed, recommended etc. parties who are referred to ADR, dont
see process as consensual (In reality, most parties dont enter purely voluntarily or feel
free to leave)

Mandatory entry to mediation may disadvantage vulnerable groups being pressured

CONFIDENTIAL
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Parties must be free to speak openly about their needs, interests and feelings

Reveal all relevant matters without an apprehension that the disclosure may be subsequently
used against them
o

Normally inadmissible in subsequent proceedings

Encourages frank and open discussion atmosphere conducive to co-operative decision-making

FACILITATIVE

Power imbalances between parties

Interest-based and problem-solving: identifying needs and interests, develop options, reach
satisfactory agreement
o

Both interventionalist and minimalist role by mediators have advantages/disadvantages

ISSUES WITH MEDIATION: POWER IMBALANCES


POWER IMBALANCES BETWEEN PARTIES: APPROPRIATENESS AND EFFECTIVENESS OF
MEDIATION?

Danger that consensual process will merely reflect power relationship between parties

Most important types of power (Mayer)

Formal Authority formal position w/decision-making prerogatives i.e. judge, CEO,


parent

Expert/Information power expertise in area/information about matter

Associational/Referent power - association with other people with power

Resource power control over resources (moneys, materials, g&s) or ability to deny
them

Procedural power Control over procedures by which decisions are made

Sanction power Ability (or perceived) to inflict harm or interfere

Nuisance power ability to cause discomfort to party (less than applying direct
sanctions)

Habitual power power of SQ, rests on premise that is easier to maintain than to
change

Moral power appeal to widely held values; and conviction that one is right

Personal power attributes which magnify other sources of power i.e. self-assurance

Contexts of power imbalances (Boulle and Nesic)


o

Gender-based differences (i.e. power in marriage, access to resources, perceptions of


domination) particularly in cases of domestic violence

Environmental disputes conservation groups v developers, govt and businesses

Anti-discrimination cases victims v perpetrators (ignorance of relevant standards)

Plaintiffs and insurers in personal injury cases

E) COURT-ANNEXED ADR

Supreme Court Act 1989 (Vic), County Court Act 1958 (Vic) and Magistrates Court Act
1989 (Vic) provide for referral of civil matters to arbitration or mediation

SUPREME COURT:

Court may refer matter to


o

mediation with/without parties consent: R50.07 SCR

arbitration with parties consent: R50.08 SCR

Master can refer to mediation: 50.07.1

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50.07. REFERENCE TO A MEDIATOR


(1) At any stage of a proceeding the Court may, with or without the consent of any party,
order that the proceeding or any part of the proceeding be referred to a mediator.
(2) Except so far as the Court otherwise orders, an order for reference to mediation shall not operate as
a stay of the proceeding.
(3) Where a reference is made under paragraph (1) the mediator shall endeavour to assist the parties
to reach a settlement of the proceeding or settlement of that part of the proceeding referred to the
mediator.
(4) The mediator may and shall if so ordered report to the Court whether the mediation is finished.
(5) The mediator shall not make any report to Court other than a report under paragraph (4).
(6) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of
anything said or done by any person at the mediation.
(7) The agreement may be made at the mediation or later.
(8) The Court may determine the remuneration of the mediator, and by what party or parties and in
what proportion the remuneration is to be paid either in the first instance or finally.
(9) The Court may order any party to give security for the remuneration of the mediator.
(10) This Rule does not apply to the reference of a proceeding or any part of a proceeding to
mediation by an Associate Judge under Rule 50.07.1.
50.07.1 MEDIATION BY ASSOCIATE JUDGE (MASTER)
(1) Without limiting Rule 50.07(1), at any stage of a proceeding an Associate Judge may,
with or
without the consent of any party
(a) of his or her own motion; or
(b) on the reference of a Judge of the Court
order that the proceeding or any part of the proceeding be mediated by the Associate Judge.
(2) If an Associate Judge undertakes a mediation, the Associate Judge may give any direction with
respect to the conduct of the mediation as the Associate Judge thinks fit.
(3) Except so far as the Associate Judge otherwise orders, an order for mediation under this Rule
shall not operate as a stay of the proceeding.
(4) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of
anything said or done by any person at the mediation.
(5) An agreement referred to in paragraph (4) may be made at the mediation or later.
50.08. REFERENCE TO ARBITRATION
(1) At any stage of a proceeding the Court may, with the consent of all parties, order that
the proceeding or a question be referred to arbitration.
(2) An arbitration ordered under paragraph (1) shall be conducted in accordance with and subject to the
provisions of the Commercial Arbitration Act 1984.
(3) The Court may subject to the provisions of the Commercial Arbitration Act 1984 by order made
under paragraph (1) or at any time
(a) give such directions and make such orders for the conduct of the arbitration as the parties may
agree or as they might have agreed had the arbitration been made pursuant to an arbitration
agreement;
(b) make such orders as to the remuneration of the arbitrator and the giving of security for such
remuneration as it thinks fit.
COUNTY COURT:

mediation can be ordered with/ without parties consent: S47A COUNTY COURT ACT

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Arbitration with consent R50.08 CCR

MAGISTRATES COURT:

mediation w/without parties consent: S108

arbitration with parties consent: SS102-106

matter < $10,000 MUST go to arbitration: S102

F) LAWYERS & ADR


Competent legal practice requires the ability to advise clients about a range of appropriate
dispute resolution processes. Rather than marching down the well-worn path of escalating threats to
litigate and inflated claims about possible trial outcomes, it is important for lawyers now to match
disputes with appropriate dispute resolution methods. Indeed it may be a breach of professional or
ethical obligations, perhaps even negligent, for a legal practitioner to fail to fully consider a
range of dispute resolution processes with the client. - Laws of Australia, Dispute Resolution

ADR matters lawyers may be involved in


o

Understanding/advising re appropriate ADR

Structuring particular DR process

Drafting ADR provisions for agreements etc.

3) JURISDICTION
INTRODUCTION
WHAT IS IT?
For P to bring his case, P must show that the court has SM and T
jurisdiction
EXAM

1) Leading Line P must show the court has SM and T jurisdiction


2) SMJ (really quick!)
o Describe the claim (tort, breach of K, statutory claim etc)
o Which court is most likely to hear and why
3) TJ
o D must be present within the J when proceedings are commenced
o If not D can submit to the jurisdiction or valid service
4) FNC
o Test in Aus
o Test in other jurisdictions
o Apply Aus test and compare

CONTEXT
Injury occurred in NSW, P is from QLD, D is from Vic where should the case be
held?
POLICY
Commencing in Wrong Jurisdiction Results in:
o Court can strike out statement of claim
o Delays for the case
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o
o

Costs penalty
Possible loss of cause of action (statute of limitations)

OVERLAP BETWEEN JURISDICTIONS


Overlap
o Where there is an overlap between jurisdictions, P can choose either
FANCY QUOTES SO THE LECTURER THINKS YOU ARE SMART
Concept of J
o The concept of jurisdiction is rooted in power of courts to enforce their
judgments, and the amenability of the defendant to the writ expressing the
Sovereigns command in right of the State of Victoria Dixon CJ in Laurie v
Carroll
Inherent J of the Court
o The Court has power both under the Rules of the Supreme Court &
inherently to ensure that its processes do not become a source of injustice
themselves. It may do this by whatever interlocutory order is necessary from
ordering necessary amendments to a pleading to, in an extreme case,
terminating the proceeding. Bongiorno J in Gunns
Subject Matter Jurisdiction: Nature of disputes that may be adjudicated upon by particular
court

Events

Causes of Action

Source of Law

Outcome Sought

Territorial Jurisdiction: Person or bodies over whom court may exercise jurisdiction

Geographical boundaries

Persons or things under the state rule

15 | P a g e

SUBJECT MATTER JURISDICTION


WHAT IS IT?
Describe the nature of the dispute and which court will hear it
EXAM

Describe the Nature of the Claim


o Who are the parties P & D
o What is the claim tort, breach of K, statutory claim
o Pick which court is best suited
If proceedings have already commended, say whether this court is the
right one
o Be sure to consider the FC extensions under Accrued (whole matter) and
Invested (statute) Jurisdiction
Example
o John (the plaintiff, P) is suing Mary (the defendant, D) for beach of the CCA
(the new TPA)
o Fed court hears matters involving federal legislation under its original
jurisdiction S 19(1) FCA and therefore the FCA, and P, have SMJ

WHICH COURT (STATE JURISDICTION)


VCAT
o Acts
Established in 1999 by the Victorian Civil and Administrative Tribunal
Act 1998 (Vic)
Jurisdiction derives from legislation including:
Fair Trading Act 1999;
Residential Tenancies Act 1997;
Domestic Building Contracts Act 1995;
Equal Opportunity Act 1995;
Planning and Environment Act 1987; and
Guardianship and Administration Act 1986.
Jurisdiction

Determined by nature of dispute, rather than amount of dispute


Civil Division:
Civil claims
Credit
Domestic building
Owners
Corporation
Real property
Residential
Tenancies
Retail Tenancies
Administrative Division:
General
Land valuation
16 | P a g e

Legal practice
Occupation and business regulation
Planning
Environment
Taxation
Human Rights Division
Anti-discrimination
Guardianship
Health and privacy
Mental health

Magistrates Court
o Acts
o

Magistrates Court Act 1989


Jurisdiction

Any claim for damages or equitable relief within jurisdictional limit (up
to $100,000) S100
If claim is for $100,004 can bring in the Mag court and abandon the
$4
Excluded

Prerogative writs and equivalent admin law proceedings are excluded


S100(2)
Specialist Divisions

Childrens Court
o Introduction

Independent Court on the same level as the Mag Court


Cases heard by Magistrates
Jurisdiction

Koori Aboriginal Ds
Drug Criminal jurisdiction for drug offences limited to certain
geographical areas
Family Violence Criminal and civil jurisdiction (alleged family
violence) limited to certain geographical areas
Neighbourhood Justice Division Criminal and civil J (homeless,
Aboriginal, family violence or community relates issues) limited to
certain geographical areas

Matters concerned children under 18 (criminal law) or 17 (family law)


Divisions
Family
Criminal Koori
Neighborhood Justice

County Court
o Acts
o

County Court Act 1958


Original Jurisdiction

General Rule

17 | P a g e

Applications, claims, disputes and civil proceedings, regardless


of the type of relief sought, or the subject matter, that are not
excluded by this or any other Act S37(1)(a)

Limit
No monetary limit
Previous limit of $200k abolished in 2007 in an amendment to
the Courts Legislation (Jurisdiction) Act 2006
So What is the Jurisdiction?

All claims and proceedings over $100,000


Claims against municipal councils for loss/injury while using council
roads, land or buildings S37(1)(b)
Criminal appeals from the Mag Court (appellate jurisdiction)
Other areas where jurisdiction conferred by statute (e.g. Admin &
Probate Act, PLA, TLA, Adoption Act)
CC or SC?

Lots of overlap since abolition of $200k limit


P can choose which court to bring

CC is cheaper and faster


SC is more appropriate for complex cases
Listing ability increases expertise

Supreme Court
o Intro
o

Original jurisdiction only appellate jurisdiction goes to CoA


Unlimited Jurisdiction

SC shall be the superior court of Vic with unlimited jurisdiction


Constitution Act (Vic) S85(1)
Unlimited jurisdiction in terms of subject matter (unless statute
excludes) and money
3 Divisions (similar to lists)

Lists

Commercial Court
Intensively managed

Major Torts List


Associate judge manages interlocutory stage until case is ready
for trial and handed to the civil list
Others
Admiralty; TEC; Corporations; IP; planning; tax; long cases
Varying degrees of case management. E.g. TEC has a resources
conference early in proceedings

Commercial and Equity Division


Common Law Division
Criminal Law Division

Court of Appeal
o Introduction

Appeal division of the SC

18 | P a g e

Established in 1995 under the Constitution (Court of Appeal) Act


1994
Made up of the SCV Chief Justice, a President and currently 11 judges of
appeal
Jurisdiction

Appeals from SC or CC
Questions of law from VCAT or Mag Court

WHICH COURT (FEDERAL JURISDICTION)


Introduction
o Cwth Constitution Chapter III

HCA
o

Cwth

judicial power can only be exercised by: S71 Const


HCA
A federal court created by federal statute
A state/territory court invested with federal power

Original Jurisdiction S75 Const

Matters that:
i) arise under treaty
ii) affect representatives of other countries
iii) involve the Cwth as a party
iv) occur between states; between residents of different states;
between a state and resident of another state
v) Involve a writ of mandamus/prohibition or injunction
against an officer of the Commonwealth
Additional Original Jurisdiction S76 Const / Exercised through Judiciary
Act 1903 S30(a)
Parliament may make laws conferring original jurisdiction on the High
Court in any matter:
(i) Arising under this Constitution or involving its interpretation
(ii) Arising under any laws made by the Parliament
(iii) of Admiralty and maritime jurisdiction
(iv) Relating to the same subject matter claimed under the
laws of different States
Exclusive Jurisdiction S38 Judiciary Act

HCA has jurisdiction over matters arising directly under any treaty and
suits between States and the Cwth
Appellate Jurisdiction

Jurisdiction
Appeals from all judgments, decrees, orders and sentences S73
Const
o Of any justice/s exercising HCA original jurisdiction
o Of any other federal court exercising federal
jurisdiction or the Supreme Court of any state
Interlocutory Judgment

19 | P a g e

Leave of HC required to bring appeal for any interlocutory


judgment S34 Judiciary Act
Appeals from Single Judge of FC

No appeal from single judge decision of the Federal Court


except if judge was exercising appellate jurisdiction for appeal
from Federal Magistrates Court s33 Federal Court Act 1976

Appeals from SCs Require Special Leave S35 Judiciary Act


Criteria for granting special leave: S35A Judiciary Act
o the High Court may have regard to any matters that it
considers relevant but shall have regard to:
(a) whether proceedings involve a question of
law:
(i) that is of public importance, whether
because of its general application or
otherwise; or
(ii) in respect of which a decision of the
High Court, as the final appellate court, is
required to resolve differences of
opinion between different courts, or
within the one court, as to the state of the
law; and
(b) whether the interests of the administration
of justice, either generally or in the particular case,
require consideration by the High Court of the
judgment to which the application relates

Such
o
o
o

Federal Court
o Introduction

Other Fed Courts as Parl Creates


1975 Family Court
1976 Federal Court
1999 Fed Mag Court

Created by Federal Court of Australia Act 1976: in exercise of Cwth


Parl power conferred by s71 Const
Original Jurisdiction

Rule

Limited to matters in respect of which Parl has specifically


invested the court with jurisdiction
Under s19(1) of FCA Act and s77(i) Constitution

Jurisdiction
Per s19(1) Federal Court Act: has original jurisdiction in
matters which the Commonwealth has specifically invested it
with
Invested Jurisdiction (Adds to Original) S77 Const

Rule

With respect to any of the matters mentioned in the last two


sections the Parliament may make laws:
20 | P a g e

o
o

(i) defining the jurisdiction of any federal court other


than the High Court;
(ii) defining extent to which the jurisdiction of any
federal court shall be exclusive of that which belongs
to or is invested in the courts of the States;
(iii) investing any court of a State with federal
jurisdiction.

Application
Hardly relevant
E.g. Certain areas of the CCA (new TPA) cannot be heard by SC
and must be heard by FC
Appellate Jurisdiction

Jurisdiction
Appeals from single judge of FC
Appeals from judgments of a State Court (But NOT the full VSCA)

Money
Unlimited monetary
Accrued Jurisdiction (All matters in controversy)

Rule

Court shall grant all remedies to the parties before it appear to


be entitled so that, as far as possible, all matters in
controversy between the parties may be completely and finally
determined S22 FCA
Policy: Avoid a multiplicity of proceedings
Matters: Defined broadly

Whole Controversy
Rule
o FC has the jurisdiction to determine the whole controversy
between the parties, even if some part of it would
otherwise be outside its jurisdiction Fencott v Muller
Matter
o All causes of action arising from the same
events/transactions Re Wakim
Application
o Determine whether the federal cause of action is real
enough
o This is a question of degree

In Fencott, claims under CL and TPA were allowed

Discretionary
Accrued Jurisdiction is discretionary Stack v Coast Securities;
Phillip Morris

LEADING CASES
Fencott v Muller (1983)
o Facts

Involved the sale of a restaurant and a wine bar in Perth


The purchaser alleged false representations as to profits and turnover
of the business
21 | P a g e

Sued for fraud, breach of contract, negligence and breach of


TPA/CCA
Also claims against other respondents for indemnities and breach of
fiduciary duty
Respondents contended the proceeding was entirely outside the
jurisdiction of the Federal Court

Held

Court has jurisdiction to determine the whole of the controversy


between the parties, even if some part of the controversy would
otherwise be outside the jurisdiction
Matter = all causes of action arising from the same
events/transactions
Whether Federal matter real is enough is a question of degree

TERRITORIAL JURISDICTION
WHAT IS IT?
The Court requires jurisdiction over the D
EXAM

Areas of Jurisdiction
Territorial Jurisdiction
o Presence; OR
o D submits; OR
o Valid service

AREAS OF JURISDICTION

Constitution Act (Vic) s 85(1) Subject to this Act the Court shall have jurisdiction in
or in relation to Victoria its dependencies and the areas adjacent thereto in all
cases whatsoever and shall be the superior court of Victoria with unlimited jurisdiction

Coastal Waters (State Powers) Act 1980 & Coastal Waters (State Title) Act
1980
o

(Cth): States have legislative powers over 3 nautical miles of coastal waters.

TERRITORIAL JURISDICTION
RULE

The Court requires jurisdiction over the D (Territorial/in personam jurisdiction)


Must show one of:
o D present in the jurisdiction
OR
o D submits to jurisdiction
OR

22 | P a g e

o
EXAM

Valid service on D

1) PRESENCE OF DEFENDANT IN THE JURISDICTION


o Previously

Now

Presence within the state (or normal residency) was essential to


exercise jurisdiction. Laurie v Carroll
Presence is not required, if D submits, or there is valid service

2) DEFENDANT SUBMITS TO JURISDICTION


o Rule
Where defendant voluntarily submits to the jurisdiction
This is done by filing an unconditional appearance D is taken to have
submitted to the jurisdiction
Contract

It is possible to submit to a jurisdiction under a clause in a K if that K


refers to a specific court Vogel v Kohnstamm

3) VALID SERVICE WITHIN/OUTSIDE JURISDICTION


o Statutory Extension of Territorial Jurisdiction

Court may have valid in personam jurisdiction over a defendant outside


jurisdiction who is validly served with proceeding Laurie v Carroll

Acts

In Another State
Service and Execution of Process Act 1992: Gives courts of
states and territories Australia-wide in personam jurisdiction
Kontis v Barlin
In Another Country
Order 7 allows someone who is overseas to be served
Supreme Court Rules for Overseas Service: Covers service
outside of Australia; but requires some nexus between case or
defendant & the forum
o I.e. contract btw NZ &VIC, jurisdiction could be either
place dont want 2 cases

FORUM NON CONVENIENS (OVERLAP BETWEEN COUNTRIES)


WHAT IS IT?
Courts have the power to stay a proceeding if it is in a clearly
inappropriate forum
CONTEXT
Used when D wants to contend that P has brought the proceeding in a jurisdiction
that is clearly inappropriate
EXAM
23 | P a g e

Rule
o

D may apply to have the Court (per 8.09) set aside service of writ or stay
proceedings on the basis that Victoria is not a convenient forum 7.05(2)(b)
Test in Aus
o TEST

Stay will be granted if the Australian court is a clearly inappropriate


forum Voth (Brennan J)
What is CIF?

The court will be clearly inappropriate if continuation would be


oppressive, vexatious or an abuse of process Voth
What is Oppressive, Vexatious or an Abuse of Process?

To determine, look at: Voth


Relevant connecting factors Spiliada (per Lord Goff)
AND
Legitimate personal or juridical advantage Spiliada (per Lord
Goff)
AND
Can also look at workload and backlog of the Court BHP
AND
Similar care in current jurisdiction, better to stay there due to
expertise Cambridgeshire Factor form Spiliada
Connecting Factors from Spiliada

1. Expense and convenience


2. Where did the cause of action arise?
3. Where do the parties reside or carry on business?
4. Where do the majority of the witnesses reside (Look at
convenience for witnesses as well as the parties)
5. Which law will apply/governs the relevant transaction?
6. Are there any other parties involved & are they amenable (ie
liable to) to any particular jurisdiction?
Example: VOTH

Stay in Voth granted due to:

Breach / Most of damage, evidence and other witnesses in USA


Most applicable (tax) law was in the US
One party in each jurisdiction
In the US, the limitation period had expired, but D promised they wouldnt use that
as a defence

Test in Most Other CL Jurisdictions


o Stay will be granted if another forum is more appropriate Spiliada Maritime
Corporation v Cansulex
Comparing the Tests
o Aus is better for P as it is as more difficult test and therefore there is less
chance the proceeding will be stayed
o Aus uses this test as it does NOT involve the assessment of the
appropriateness of a court in another jurisdiction, just the appropriateness of
the current court

LEADING CASE

24 | P a g e

Voth v Manildra Flour Mills (HCA)


o Facts
Plaintiff commenced proceedings in NSW against an accountant
practising in Missouri, USA
Action for damages for professional negligence
P alleged S failed to advise on Ps liability to account to the Inland
Revenue Service (USA) for withholding tax, whereby penalties
and interest became payable
Respondent sought to stay the proceedings on the ground that the
NSW court lacked jurisdiction
o Held (HCA)
HCA ordered the NSW action be stayed
We have little doubt that Missouri is the more appropriate forum but it
does not necessarily follow that New South Wales is a clearly
inappropriate forum ...
In favour of a stay are the considerations that the action has a
substantial connection with the law of Missouri, the relevant acts and
omissions took place predominantly in Missouri and the professional
standards will therefore be relevant to his liability, if any; in large part
the damage which the appellant was alleged to have caused was
referable to United States taxation law; and the greater part of the
evidence in any trial of the action would be found in Missouri
On the other hand, the plaintiffs in the action are residents of New
South Wales and may therefore reasonably point to the advantages to
them in practical terms of bringing actions in the local courts
the principles to be applied in applications to set aside service and
in applications for a stay on the inappropriate forum grounds are those
stated by Deane J in Oceanic Sun, at pp 247-248
In the application of those principles the discussion by Lord Goff in
Spiliada (at pp 477-478, 482-484) of relevant connecting factors and
a legitimate personal or juridical advantage provides valuable
assistance.
Spiliada factors: include
Expense and convenience
Where did the cause of action arise
Where do the parties reside or carry on business
Where do the majority of the witnesses reside
Which law will apply?
Are there any other parties involved and are they amenable to
any particular jurisdiction
Stay should be granted if the local court is a clearly inappropriate
forum which will be the case if continuation of the proceedings in that
court would be oppressive (in the sense of seriously and unfairly
burdensome, prejudicial or damaging) or vexatious (in the sense of
productive of serious and unjustified trouble and harassment) or an
abuse of process.

CROSS-VESTING OF JURISIDCTION (MOVING FROM STATE TO STATE, STATE


TO FED, FED TO STATE)
WHAT IS IT?
Moving from State to another State, from State to Fed, or from Fed to
State
25 | P a g e

Introduced in 1987 to allow each court to provide a complete relief

CONTEXT
Transfer from a State Court to State or Fed
Transfer from a Fed Court to a State Court
E.g. A sues B for breach of CCA in SCV B wants it moved to the FC
EXAM

1) Establish vesting component


2) Establish transfer component
3) Choose CV Act
4) Choose relevant SS of S5
5) Transfer MUST be made (3 occasions)
6) More appropriate

1. VESTING/CONFERRAL OF JURISDICTION
WHAT IS THIS?
Show which act gives jurisdiction to the relevant court
Show which act receives the jurisdiction
TRANSFER TO STATE COURT, FROM ANYWHERE
Which Act Gives Jurisdiction
o

S.4 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) gives original jurisdiction to State
SCs of other States The giving

o Each state an territory has an identical Act


Which Act Receives Jurisdiction
o

S.9 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) Allows the Vic SC to use the
jurisdiction of the other SCs the receiving

Each state an territory has an identical Act

TRANSFER TO FED COURT, FROM ANYWHERE


Which Act Gives Jurisdiction
o

Previously

S.4 Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) gives the FC
jurisdiction to all State SCs (with not exclusions) The giving

This was declared constitutionally invalid as it gives state jurisdiction to a federal court Re

Wakim; Ex Parte McNally


o

Now

Fed court can use its accrued jurisdiction to exercise State jurisdiction
where it arises from the same matter (series of transactions) Re
Wakim (See more above)
Otherwise the FC can NOT exercise State jurisdiction

2. TRANSFER OF PROCEEDINGS

26 | P a g e

WHAT IS IT?
If both the transferring court and the receiving court have the jurisdiction
to hear the case, then the court where proceedings are commenced can
transfer to a more appropriate court if there is one.
TRANSFER
Policy
o Mechanism for transfer of proceedings to best-suited court, but need to
ensure that the scheme does not foster forum-shopping, and maintains the
jurisdictional balance between various courts
Select the Appropriate Section
o In or Desired?
Section is based on the Jurisdiction you are in, not the desired location
o Rule
Courts may transfer to each other per Jurisdiction of Courts (CrossVesting) Act 1987 (Vic)
S5(1) from Supreme Court to Federal or Family Court
S5(2) from Vic Supreme Court to another Supreme Court
S5(3) from another Supreme Court to Vic Supreme Court
S5(4) from Federal or Family Court to Supreme Court
S5(5) from Federal or Family Court to Federal or Family Court
WHERE TRANSFER MUST BE MADE
Rule
o There are 3 occasions in which a proceeding MUST be transferred:
1) Separate But Related Proceedings
There are separate but related proceedings pending in a
different court, and the court considers it would be more
appropriate for all proceedings to be decided by the other court
s5(?)(b)(i)
2) More Appropriate
It would be more appropriate for another court to hear the
proceeding s5(?)(b)(ii)
o See MA definition below
o Does NOT have to be the same parties
o MUST be common question
3) Interests of Justice
Does NOT apply to Sup to Fed (S5(1)) as this is constitutional
breach
It is in the interests of justice that there be a transfer s5(?)(b)
(iii)
FNC does not play a role in determining IoJ, but Spiliada factors
can be helpful BHP
Application (MA)
o In determining the more appropriate, the court MUST have regard to
1) Where would case have been heard if there was no CV legislation?
Is the first court incapable of hearing the proceeding, and is
another court capable of hearing it?
E.g. BHP would have been heard in QLD as rights were being
pursued under the Money Lenders Act (QLD)
2) Law of another jurisdiction
To what extent does the matter involve the application of law
from another jurisdiction?
27 | P a g e

E.g. BHP Clause in K said relevant law was QLD and the
relevant act was from QLD
3) IOJ and More Appropriate
In the IOJ, is it more appropriate the proceeding be determined
by another SC?
FNC does not play a role in determining IOJ, but Spiliada factors
can be helpful BHP
o Connecting Factors from Spiliada

1. Expense and convenience


2. Where did the cause of action arise?
3. Where do the parties reside or carry on
business?
4. Where do the majority of the witnesses reside
(Look at convenience for witnesses as well as the
parties)
5. Which law will apply/governs the relevant
transaction?
6. Are there any other parties involved & are
they amenable (ie liable to) to any particular
jurisdiction?

LEADING CASE
BHP Billiton v Shultz
o Facts
Plaintiff suffered from asbestosis, which he claimed was the result of
exposure to asbestos while he worked for BHP at Whyalla in South
Australia
P commenced proceedings in NSW Dust Diseases Tribunal
Ds sought to have the matter transferred to the Supreme Court of
South Australia
It was not in dispute that the law of SA would be the substantive
laws that would govern the claim
The jurisprudential basis of the cross-vesting law differs from the
common law relating to FNC Decision by courts of which is the more
appropriate
o Held
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.
Speed with which a court/tribunal can deal with the case is a
consideration relevant to the interests of justice
Question what do the interests of justice require? Things like forums
non conveniens do not play a role in this issue. However, the Spiliada
factors can be helpful in answering this question
Expense and convenience
Where did the cause of action arise?
Where do the parties reside or carry on business?
Where do the majority of the witnesses reside?
Which laws will apply/govern the relevant transaction?
Are there any other parties involved and are they amenable (i.e.
liable) to any particular jurisdiction?
Whether there is a significant backlog of cases in poss. crt of
transfer
28 | P a g e

How important are the issues and what jrdn do they rely on?

29 | P a g e

4) INSTITUTING PROCEEDINGS
WHAT IS THIS ABOUT?
How to start a proceeding
EXAM STRUCTURE
1) Intro Crap
o Client Management (quick)
o Letters of Demand (quick)
o ADR (if relevant quick)
2) Identify Parties + Cause of Action
3) Does P have Standing?
o Private right
o Special interest
4) Capacity
o P
o D
o E.g. D is a corporation and therefore has capacity to be sued under s124
corporations act
5) Overarching Obligations (quick)
6) Originating Process
o Intro line (proceeding commended by filing OP)
o Writ
o OM
7) Limitation of Actions

A) CLIENT MANAGEMENT
OVERVIEW
Quick one or two lines about CM
CLIENT MANAGEMENT
Leading Line
o Complaints about lawyers conduct has resulted in rules governing the
solicitor/client relationship
Communication Between Solicitor and Client
o Should disclose all available options and consequences
o MUST explain fees and complaints handling procedure LPA 2004
Fees: how they are charged and calculated
Complaints: how to complain about a solicitors behaviour
COSTS DISCLOSURE (MORE DETAIL ONLY USE IF SPECIFICALLY ASKED)
Section 3.4.9 Disclosure of Costs to Clients
o Solicitor must disclose to a client:
The basis on which legal costs will be calculated;
The clients right to:
Negotiate a costs agreement with the law practice; and
Receive a bill from the law practice; and
Request an itemised bill within 30 days after receipt of a lump
sum bill.

30 | P a g e

An estimate of the total legal costs or, if that is not reasonably


practicable:
A range of estimates of the total legal costs; and
An explanation of the major variables that will affect the
calculation of those costs; and
Details of the intervals (if any) at which the client will be billed; and
If the matter is a litigious matter, an estimate of
The range of costs that may be recovered if the client is
successful in the litigation; and
The range of costs the client may be ordered to pay if the client
is unsuccessful.

B) LETTERS OF DEMAND: PLAINTIFF


OVERVIEW
Quick one lines about P sending an LOD prior to commending proceedings
LETTERS OF DEMAND
What is it?
o Letter from P to D demanding that D do something e.g. pay a sum of money
Benefits
o Good practice
o Opens discussion
o Notifies the party
o Can avoid litigation
Offer for Settlement
o LOD may include an offer for settlement
o Can be without prejudice (see costs)
PRE-LITIGATION PROTOCOL
In the UK
o Certain categories of civil litigation require parties to take steps prior to
commencing proceedings
o Include:
Letters of Demand
Response to LOD
Meeting to Negotiate
o Theory is that issuing proceedings should be a last resort
Victoria
o Possible Rule
The Civil Procedure Act 2010 Chapter 3 Pre-litigation Requirements
proposed that disputing must take reasonable steps to resolve their
disputes, or to clarify and narrow the issues before suing
o Repealed?
However, the Act is proposed to be repealed before it comes into force.
o Pre-Litigation Requirements
Reasonable steps'
The exchange of correspondence, information and documents
relating to the dispute
AND
The consideration of options for resolving the dispute without the
need for proceedings
31 | P a g e

Negotiations/ADR
Parties 'must not unreasonably refuse to participate in genuine
and reasonable negotiations or appropriate dispute resolution'
Certification
Once litigation is commenced, each party must certify whether it
has satisfied the pre-litigation requirements and, if not, the noncomplying parties must state briefly why that is the case
Sanctions for Non-Compliance
A party can commence proceedings without complying with the prelitigation requirement
Court may order that a party (or the party's legal representative) pay
other parties' costs of compliance with the pre-litigation requirements
Court may also take into account a party's failure to comply with these
requirements when considering questions of costs generally and in
making any procedural orders in the proceeding

C) STANDING: PLAINTIFF
WHAT IS IT?
P must show he has standing or sufficient interest in the subject matter of the
legislation
Standing is sufficient connection to, and harm from, the law or action challenged to
support that partys participation in the case
AKA locus standi
STANDING
TEST
o P must show he has either:
A private right
OR
A special interest in the subject matter of the action
special interest does not need to involve a legal or pecuniary
right but has to be more than a mere intellectual or emotional
concern and must be an interest that is different from that of an
ordinary member of the public AFC
Each case decided on its own facts Onus
See factors below
o Special Interest Factors from AFC
More than Mere Emotional Concern
an interest, for present purposes, does not mean a mere
intellectual or emotional concern
a mere believe or concern, however genuine, does not in itself
constitute a sufficient locus standi (Mason J at 548)
Gain Advantage
A person is not interested within the meaning of the rule, unless
he is likely to gain some advantage, other than the satisfaction
of righting a wrong, upholding a principle or winning a contest, if
his action succeeds or to suffer some disadvantage, other than a
sense of grievance or a debt for costs if his action fails (Mason J
at 530)
Does NOT have to Involve a Legal or Pecuniary Right

32 | P a g e

However, it does not have to involve a legal or pecuniary right


(Mason J at 530) or that the plaintiff and no-one else possess the
particular interest
Special Interest
A special interest exists where the plaintiff can show actual or
apprehended injury or damage to his or her proprietary rights,
business or economic interests and perhaps social or political
interests. (Mason J at 530)
Corporation
A corporation or association does not acquire standing merely
because some of its members possess it (Gibbs J at 531)

Public Interest Groups


o Rule
Same test as above, but courts tend to take additional considerations
into account
E.g. Group must show that it is representative of a significant public
concern, and has an established interest in the area
o Analysis
Standing threshold is arguably higher for a group than for an individual
Fisher & Kirk, Still Standing: An Argument for Open Standing
in Australia and England 71 Australian Law Journal 370, 376
(1997)

LEADING CASES
AFC v Commonwealth (1980)
o Held
More than Mere Emotional Concern
an interest, for present purposes, does not mean a mere
intellectual or emotional concern
a mere believe or concern, however genuine, does not in itself
constitute a sufficient locus standi (Mason J at 548)
Gain Advantage
A person is not interested within the meaning of the rule, unless
he is likely to gain some advantage, other than the satisfaction
of righting a wrong, upholding a principle or winning a contest, if
his action succeeds or to suffer some disadvantage, other than a
sense of grievance or a debt for costs if his action fails (Mason J
at 530)
Does NOT have to Involve a Legal or Pecuniary Right
However, it does not have to involve a legal or pecuniary right
(Mason J at 530) or that the plaintiff and no-one else possess the
particular interest
Special Interest
A special interest exists where the plaintiff can show actual or
apprehended injury or damage to his or her proprietary rights,
business or economic interests and perhaps social or political
interests (Mason J at 530)
Corporation
A corporation or association does not acquire standing merely
because some of its members possess it (Gibbs J at 531)

Onus v Alcoa of Australia Ltd (1981)


o Facts

33 | P a g e

Section 21 of the Archaeological and Aboriginal Relics Preservation Act


1972 (Vic) provided that a person who wilfully or negligently defaced or
damaged or otherwise interfered with a relic or carried out an act likely
to endanger a relic should be guilty of an offence
Descendants and members of the Gournditchjmara Aboriginal people
wanted to commence an acting to restrain D from contravening this
section
D argued they had no standing

HELD
Descendants and members of the Gournditchjmara Aboriginal people
are custodians of the relics of cultural and spiritual importance of those
people according to their laws and customs, and so have standing to
commence an action to restrain another citizen from contravening
section 21 of the AARPA
The distinction between this case and the ACF Case is not to be found
in any ready rule of thumb, capable of mechanical application; the
criterion of special interest supplies no such rule. As the law now
stands it seems rather to involve in each case a curial assessment of
the importance of the concern the plaintiff has with particular subject
matter and of the closeness of that plaintiffs relationship to that
subject matter (Stephen J.)

CAPACITY: BOTH PARTIES


WHAT IS IT?
Both the Plaintiff and Defendant must have the recognised legal capacity
to sue / be sued
One line saying why P and D have capacity
CONTEXT
Minors / Handicapped People
Company
Partnership
Trading Business
Trustees / Executor
Insured has Died
Bankrupt
CAPACITY GENERALLY
Rule
o Both P and D must have recognised legal capacity to sue and be sued
o Capacity determined by character of parties, not rights involved

SPECIAL CIRCUMSTANCES
Indorsement as to Capacity
o Where a party sues in a representative capacity, the originating process shall
be indorsed with a statement showing that capacity 5.06

Person Under a Disability (Handicapped / Minor) 15.01


o Definitions
Person under disability
34 | P a g e

Rule

Minor or handicapped person


Handicapped person
A person who is incapable by reason of injury, disease, senility,
illness or physical or mental infirmity of managing his or her
affairs in relation to the proceeding;
Must commence or defend a proceeding by a litigation guardian
15.02(1)
Anything that is required/permitted by the Rules to be done by a party
shall or may be done by his or her litigation guardian 15.02(2)
LG must be identified in the title of the proceedings (see diagram
below)

DESCRIPTION OF PROCEEDINGS BROUGHT BY A LITIGATION GUARDIAN


In the title:
AB, an infant, by CD her litigation guardian

Plaintiff

And
XYZ

Defendant

In the statement of claim:


1. Plaintiff AB is a minor and sues by her litigation guardian, CD.

Corporation
o What is a Corporation
A body with an ABN, Pty, Ltd or ASIC listing
Unincorporated bodies are NOT corporations and can NOT be sued
(must sue owner personally)
o Rule
Corporations are given capacity by legislation s124 Corporations Act
MUST include CAN as part of its name in any document in legal
proceedings

Partnership / Business
o Partnership Rule
Not a legal entity, but P can use the partnership name when suing
17.01
Do NOT need to mention every partner
Can access property that is jointly owned
Need only serve 1 partner
See diagram for requirements
o Business
Rule
Any person carrying on business within Victoria in a name or
style other than that person's own may be sued in that name
or style as if it were the name of a firm 17.10
So P can use the name of a business to sue the person carrying
on the business
Applies as if Owner was a Partner
Rules 17.02 to 17.09 shall apply, with any necessary
modification, as if that person were a partner and the name in
which the person carries on business were the name of that
person's firm
35 | P a g e

DESCRIPTION OF PROCEEDINGS BROUGHT BY A PARTNERSHIP


In the title:
JECKYL, HYDE AND CRUSOE (A FIRM)

Plaintiff

NOT JECKYL AND HYDE (trading as Jeckyl, Hyde and Crusoe)


And
XYZ

Defendant

Estates: Executor, Administrator and Trustees


o Rule
Proceedings relating to an estate or trust must be taken against the
executor, administrator or trustee of the estate Order 16
It is not necessary to join those beneficially entitled Order 16
o When Does this Apply?
16.01 Representation of unascertained persons applies to:
(a) the administration of the estate of a deceased person
(b) property subject to a trust; or
(c) the construction of an instrument, including an Act

Bankrupt (See Bankruptcy Act and Corporations Act for More)


o Rule
If a person is bankrupt, or a company is in liquidation, they can NOT
sue or be sued

OVERARCHING OBLIGATIONS (CIVIL PROCEDURE ACT 2010)


WHAT IS IT?
Before issuing a civil proceeding each party must certify they have read
and understood the overarching obligations
Quick 1 or 2 liner
OVERARCHING OBLIGATIONS
What are the Obligations Pt 2.3 Civil Procedure Act 2010
o To act honestly
o To have a proper basis to any claim
o To only take steps to resolve or determine the dispute
o To cooperate in the conduct of civil proceedings
o To not mislead or deceive
o To use reasonable endeavours to resolve dispute
o To narrow the issues in dispute
o To ensure costs are reasonable and proportionate
o To minimize delay
o To disclose the existence of documents
Sanctions Resulting from Contravention of the Obligations
o Court Takes it into Account
Section 28 Court can take account of any contravention in exercising
any power in relation to a civil proceeding
o Court Can Order
Section 29 Where satisfied of contravention on balance of
probabilities, court can make an order it considers appropriate in the
interests of justice including:
Orders for Payment of cost

36 | P a g e

Order that person take steps to remedy the contravention


Order preventing a person from taking specific steps in the
proceedings
o Party Can Apply for Order
Section 29(2) allows order to be made on application of any party, or
other person with interest in proceeding, or on courts own motion
Section 30 sets out how and when an application under s29 must be
made
o Court can NOT Prevent Proceedings
Court may not (unless orders otherwise) prevent commencement of
proceedings merely because of failure to comply with certification
requirements Section 45
Certification
o Overarching Obligations Certification by Parties
Each party must personally certify that they have read and understood
the overarching obligations and the paramount duty S41
This must be filed with the first substantial document in the proceed
filed by the party, ie Statement of Claim, Defence S41

37 | P a g e

ORIGINATING PROCESS
WHAT IS IT?
Proceedings are commenced by filing an OP
2 types of OP are
o Writ
o OM
GENERAL RE ORIGINATING PROCESS
INTRODUCTION
2 Ways to Commence a Proceeding 4.01
o 1) File a Writ with the Prothonotary
o 2) File an OM with the Prothonotary
GENERAL RULES FOR OP
Commence a Proceeding
o A proceeding shall be commenced by filing an originating process
R5.11(1) SCR
Service
o An originating process must be served personally, except where otherwise
provided R6.02 SCR
o An originating process must be served within 12 months of issue unless
extended by court order, otherwise it becomes stale R5.12 SCR
Capacity
o Where a party sues or is sued in a representative capacity, the
originating process shall be indorsed with a statement showing that
capacity R5.06 SCR
Endorsements
o Originating process shall be endorsed with Ps address, Ds address and Ps
solicitors address R5.07(1) SCR
o Writ and originating motion shall be indorsed with a statement to the effect
that if D does not file appearance within time stated in originating
process, P may obtain judgment R5.03(1) SCR
WRIT
INTRODUCTION
Usual Process to Commence Proceedings
o Except as provided by Rules 1.12, 4.05 and 4.06 and Order 58, every
proceeding shall be commenced by writ 4.04

Form
o

Per R5.02(1) SCR: Must be in Form 5A

Must be indorsed with statement that if D does not file an appearance within the
time stated, P may obtain judgment without further notice 5.03(1)

Indorsed with Time and Mode


38 | P a g e

Writ will be endorsed with statement of the place and mode of trial desired
R5.08(1) SCR

If not endorsed taken to Melbourne without jury R5.08(2) SCR

INDORSEMENTS
Rule
o A writ MUST contain an indorsement of claim by either: R5.04(1) SCR
1) General indorsement
OR
2) Special endorsement

General Indorsement
o No SOC
No statement of claim filing with writ

P then has 30 days to file a statement of claim R14.02 SCR

Court may allow P to serve a SoC that has the effect of adding/substituting
a cause of action 14.03(2)
MUST Include R5.04(2)(b) SCR

Nature of claim (facts)

Cause of action relied upon (e.g. Negligence)


Needs to outline the legal cause of action, not the factual cause of
action Ruzeu v Massey Ferguson

Relief/remedy sought
Detail Required
Must be broad enough to convey the information generally and without
particularity Renowden v McMullin
Particularity is required to the extent the particularity is indispensable to
notify the required elements of the endorsement Renowden v McMullin
Altering the Claim
P may alter, modify or extend the claim as endorsed on the writ
without amendment of the endorsement R14.03(1) SCR

Special Endorsement
o SOC
Contains a SOC R5.04(2)(a) SCR
Must include the heading statement of claim and plead all the material
facts R5.04(3) SCR
If writ indorsed with special indorsement, do not require another
Statement of Claim 14.01

39 | P a g e

LEADING CASES
Renowden v McMullin (1970)
o Facts:
Plaintiff was a solicitor
Defendant was the firm of accountants that audited the plaintiffs trust
accounts
Plaintiff claimed D failed to notify P of irregularities in his trust account, by
reason of which he lost his practicing certificate and, in the long run this
led to him becoming bankrupt
Subsequent Statement of Claim made no claim for breach of contract,
which had been included in the Indorsement on the writ
After Statute of Limitation period had expired on the breach of contract
cause of action, plaintiff sought to amend Statement of Claim to include
breach of contract
o Held:
Causes of action on which plaintiff relies are to be determined exclusively
by reference to the pleading
Plaintiff seeking to raise a new cause of action in the pleadings which is
statute barred, and that should not be allowed
The indorsement on the writ not being a statement of claim is not in the
nature of a pleading. In our opinion, it should not be construed as such but
read for what it is; namely, a notice of the nature of the plaintiffs claim, of
the cause of action thereof and of the relief sought in the action. It suffices
if it conveys the information generally and without particularity save
where and to the extent to which particularity is indispensable to notify
the required elements of the endorsement, for example on some
occasions, the identification of the instrument on which a claim is
founded.

Ruzeu v Massey-Ferguson (1983)


o Facts:
The plaintiffs claim is for damages for injuries he received to his back in
an accident which occurred on or about 2 December 1975 whilst he was in
the course of his employment with the defendant. The accident occurred
as a result of the negligence of the defendant, its servants and agents and
the plaintiff claims damages.
Defendant sought to have writ set aside on basis that it did not give notice
of the cause of the claim
At first instance, it was held that indorsement deficient because it did not
indicate the nature of the accident which caused the injuries to the
plaintiff's back e.g. that he was hit by moving machinery or fell off a
scaffold
o Held:
On appeal it was held that the indorsement was sufficient
CoA also said even if had contrary opinion, not correct to set aside the
writ, which is a drastic measure putting an end to the action. If
indorsement is defective, appropriate order is to order plaintiff to give
particulars
in our opinion the word cause in the rule is not directed to the
physical acts which caused the accident or injury. It is directed to the
cause of action. Thus what the endorsement must contain is sufficient
notice of (a) the nature of the claim, (b) the cause of action relied upon
and (c) the relief or remedy required. In an action based on negligence
particulars (a) and (b) will often be run together. In the present case the
40 | P a g e

particulars are: (c) damages for (a) personal injuries caused by (b) the
negligence of the defendant, Thus the indorsement clearly covered all the
requirements of the rule.

ORIGINATING MOTION
OM

Context
o Used primarily for resolving legal rather than factual disputes
Unlikely to be any dispute of facts and therefore no pleadings or discovery
o Where there is no D
When is an OM Required?
o A proceeding shall be commenced by originating motion: R4.05 SCR
(a) where there is no D to the proceeding;
(b) where by or under any Act an application is authorised to be made to
the Court; or
(c) where required by these Rules
Optional Commencement by OM
o A proceeding may be commenced by originating motion where: R4.06 SCR
(a) it is unlikely that there will be any substantial dispute of fact
AND
(b) for that reason it is appropriate that there be no pleadings or discovery
Form
o Per R5.02(2) SCR: Must be in Form 5B, 5C, 5D or 5E
Endorsement on OM
o

Per R5.05 SCR: endorsement on the originating motion must specify:

Relief/remedy sought

The Act, if any, under which the claim is made

Where it includes any question to be answered, the question shall be


stated

Pleadings are not required

Place and Mode


o

P may endorse originating motion with a statement of the place of trial desired,
and if not so endorsed, P shall be taken to desire trial in Melbourne R5.08(3)
SCR

FAILURE TO COMPLY
FAILURE TO COMPLY
Rule
o Failure to comply with the Rules is an irregularity, but does not render the
document/process/judgment a nullity 2.01(1)
Courts Response
o If failure to comply, Court may: R2.01(2) SCR

41 | P a g e

(a) set aside proceeding;


(b) set aside any step taken in the proceeding
(c) exercise powers to allow amendments
Setting Aside
o The Court shall not wholly set aside proceeding or originating document
on the ground that the proceeding was commenced by the wrong process
R2.02 SCR

Irregular or Abuse of Process


o

The Prothonotary may refuse to seal originating process where they consider that
sealing the document would be irregular or an abuse of process of the Court
27.06(1)

CAUSES OF ACTION & LIMITATION OF ACTIONS


WHAT IS IT
Actions must be brought within the limitation period
POLICY
Rationale
o Unfair to Ds to have potential lawsuit hanging over them for extended periods
o Longer time means evidence is less strong (witnesses forget, stuff goes missing
etc)
o Public interest in efficiency
McHugh J in Brisbane South Regional Heath Authority v Taylor
o Courts and commentators have perceived four broad rationales for the
enactment of limitation periods. First, as time goes by, relevant evidence is likely
to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an
action to be brought long after the circumstances which gave rise to it have
passed. Third, people should be able to arrange their affairs and utilise their
resources on the basis that claims can no longer be made against them. Insurers,
public institutions and businesses, particularly limited liability companies, have a
significant interest in knowing that they have no liabilities beyond a definite
period.
o As the NSW Law Reform Commission has pointed out:
"The potential defendant is thus able to make the most productive use of
his or her resources and the disruptive effect of unsettled claims on
commercial intercourse is thereby avoided. To that extent the public
interest is also served."
o Even where the cause of action relates to personal injuries, it will be often just as
unfair to make the shareholders, ratepayers or taxpayers of today ultimately
liable for a wrong of the distant past, as it is to refuse a plaintiff the right to
reinstate a spent action arising from that wrong. The final rationale for limitation
periods is that the public interest requires that disputes be settled as quickly as
possible
o In enacting limitation periods, legislatures have regard to all these rationales. A
limitation period should not be seen therefore as an arbitrary cut off point
unrelated to the demands of justice or the general welfare of society. It
represents the legislature's judgment that the welfare of society is best served
by causes of action being litigated within the limitation period, notwithstanding
that the enactment of that period may often result in a good cause of action
being defeated.

42 | P a g e

GENERAL RULE
Rule
o P must commence proceedings within the limitation period
o Time is calculated from when the cause of action accrues
o Expiry of a limitation period is a procedural defence that D may raise
Legislation
o Sections are from the Limitations of Actions Act 1958 (Vic)
Equitable Remedies
o Limitation statute does NOT apply to claims seeking equitable remedies (e.g.
specific performance or injunctions)
o Time for bringing an action seeking equitable relief is governed by the doctrine of
laches court may refuse to grant relief where plaintiffs delay makes it unjust
for court to grant relief i.e. because plaintiffs slackness has caused prejudice to
the defendant.
Cause of Action Accrues
o Will accrue when all necessary facts have occurred and there is a competent P
who can sue a competent D
Contract: When breach occurs
Tort: When damage is suffered
LIMITATION PERIODS
Simple Contract Actions
o 6 years from the time of breach 5(1)(a)LAA
o From when the cause of action accrues, even if were unaware
Defamation
o 1 year from publication 5(1AAA)
Torts Actions (Non-personal Injury such as property loss, economic loss, nuisance)
o 6 years 5(1)(a)LAA Include damages for breach of statutory duty:
5(1A) and 23A cover intentional torts as well, because people who
suffer intentional injury should not be worse off than those suffering
negligent injury Stingel v Clark
Personal Injury/DEATH
o What is Personal Injury

Disease or impairments of a persons physical or mental condition S3 LAA


Disease is interpreted broadly Stingel v Clark
Rule for PI or Death
Whichever elapses first of: 27D LAA
3 years from date on which cause of action is discoverable by P
OR
12 years from date act/omission alleged to have resulted in death or
personal injury
Exception
27D doesnt apply to: dust-related conditions; tobacco; certain
stat/comp schemes s27B LAA
What is Discoverable (Ought)
27F Discoverable if P knows or ought to have known all of:
(a) the fact that the death/personal injury concerned has
occurred; AND
(b) the fact that the death/personal injury was caused by Ds
fault; AND
(c) the fact that the personal injury was sufficiently serious to
justify the bringing of an action on the cause of action
Objective Tests Determined Subjectively

43 | P a g e

3 years from the date on which the person first knows [subjectively]
that he has suffered those personal injuries; AND
that those personal injuries were caused by the act or omission of
some person

SUSPENSION OF THE LIMITATION PERIODS


Rule
o Can be postponed/suspended for:
Fraud, deceit, concealment;
Acknowledgement nor part-payment by defendant;
Plaintiff is under a disability
(under 18 or has a mental disability e.g. that prevents them from
managing their affairs, properly instructing a solicitor etc).
In Victoria, s.27J provides that a minor is only under a disability for
the purpose of suspending the limitation period (for personal injury
cases) if they do not have a capable parent or guardian
EXTENSION OF THE LIMITATION PERIOD
General Rule
o Court may extend the limitation period if it is just and reasonable to do so
27KLAA(2)(b)
o Time period can be extended even after the period of limitation has expired
27M(1)(a)
Factors to be Considered in Extending Limitation Period
o All the circumstances of the case: 27L
Length and reason for Ps delay 27L(1)(a)
Prejudice thatll be caused to D (facing case shouldnt be facing;
witnesses unavailable); 27L(1)(b)
Did D do anything to obstruct P or help P in ascertaining facts 27L(1)(c)
Was P suffering disability or legal incapacity at the time; 27L(1)(d)
The time within which cause of action was discoverable 27L(1)(e)
Once P knew of right to sue, act promptly & reasonably (what steps to get
advice) 27L(1)(f)
Steps taken by P to obtain medical, legal or other expert advice and
nature of advice he/she may have received 27L(1)(g)
Whether the passage of time has prejudiced a fair trial of the claim 27L(2)
(a)
The nature and extent of the plaintiffs loss 27L(2)(b)
The nature of the defendants conduct 27L(2)(b)
o If hardship or prejudice to D, likely P will not be granted an extension Tointon v
Greenham
o Requires applicant to show its case is a just and reasonable exception to the rule
that the welfare of the state is best served by the applicable limitation period
McGuinness v Clark
LEADING CASE
Clark v McGuinness
o Facts:
Joanne McGuinness issued a writ in 2002 alleging she was raped by Geoff
Clark (former ATSIC Chairman) in 1981 & 1987 when she was 16 & 23
years old
She alleged this resulted in delayed onset posttraumatic stress
disorder

44 | P a g e

The limitation period for the commencement of proceedings expired 6


years after the alleged events took place
McGuiness sought an extension of time for the bringing of proceedings
pursuant
The alleged assaults were reported to the police on both occasions shortly
after they occurred, but the matters were not ultimately pursued at that
time by the police
In 1987, McGuinness consulted solicitors about the assaults
Although they advised her that she could pursue a civil claim for the 1987
rape, no claim was pursued by McGuinness at that time
In 2000, after having seen Mr Clark in the media, McGuinness began
counselling and only then realised the serious nature of the injuries she
had suffered as a result of the alleged assaults
In 2002, McGuinness issued civil proceedings against Mr Clark

Held:
Discretion to extend time requires applicant to show its case is just and
reasonable exception to the rule that the welfare of the state is best
served by the applicable limitation period
Court of Appeal held prejudice against Clark too great and overturned
County Courts decision
Warren CJ:
In my view, the critical issue in this case is the operation of
prejudice and how that factor (as reflected in s 23A(3)) is to be
balanced against the other considerations enumerated in s 23A(3)
that may predispose a court to support the respondents claim for
an extension of time. In other words, is the prejudice to the
appellant so significant as to outweigh any legitimate claims by the
respondent and make their imposition unjust and unreasonable?

45 | P a g e

Topic 5 Multiple Parties


Introduction
Introduction
What is it?

Rules that allow parties and causes of action to be joined into one proceeding

Justification

Avoid multiplicity of proceedings


o

Avoiding duplication saves time and costs

Avoids inconsistency of result

Promotes finality in litigation

Res Judicata (Cause of Action Estoppel)


Introduction

What is it?
o

Where a matter (whole cause of action a whole claim e.g. pleading an entire
defence or CoA) has been previously decided by a court, this matter can NOT be
re-litigated in later proceedings between the same parties

Say that again?

Justification
o

Res Judicata precludes the re-litigation of claims made in earlier


proceedings between the same parties in respect of the same subject
matter

Promotes completeness and finality

Relevance to Joinder?
o

The failure to join a claim in a proceeding may preclude pursuit of that claim in a
later proceeding

The failure to join a person to a party will usually mean that a decision in that
proceeding will not be binding on that person

Exam

Leading Line
46 | P a g e

[Party X] will argue that [matter A] should not be re-litigated with a res judicata
plea, as [matter A] has already been decided in [earlier proceeding] between the
same parties

Analysis
o

Same Parties

General Rule

Privies

Same parties includes privies

Persons closely connected to the parties and their claims

Claims that COULD have been made in an earlier proceeding

General Rule (Anshun Estoppel)

Extends to claims that could have been made in the earlier


proceeding, even if they weren't Anshun

Fancy Quote to Impress Lecturer in Exam

Applies with certain exceptions, not only to points upon which the
Court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly belonged
to the subject of the litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the time
Henderson

I dont have time to read that, can you say it with less words
please?
o

Justification

Parties should bring forward their whole case

Fraud or Collusion

Exception

RJ extends to every point which properly belonged to the


subject of the litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the time
Henderson

F or C are exceptions to the rule and when alleged, will allow the relitigation of the same matter Keith L in Arnold

Discovery of a New Factual Matter

Rule

47 | P a g e

Does NOT allow re-litigation Keith L in Arnold

Leading Case

Port of Melbourne Authority v Anshun


o

Facts

Worker injured by a load of steel girders on a crane operated by Anshun


Pty Ltd at the Melbourne Port

The worker sued Anshun and the Port authority for damages

Port Authority brought proceedings against Anshun claiming indemnity in


the contract

In that earlier proceeding, the court ordered contribution pursuant


to the Wrongs Act that Port Authority could cover from Anshun 90%
of the damages

This new contractual proceeding arose from the original negligence


proceeding

Held

Port Authority loses

Claim of a contractual indemnity was so closely connected to the matters


raised in the earlier action, that it should have been raised then, and Port
Authority was now estopped from raising it in separate proceedings

Issue Estoppel and Res Judicata


Issue Estoppel
Context

Example
o

Proceeding 1 finds that D1 is responsible for an explosion that that injured P1

In proceeding 2 between D1 and P1, D1 can NOT argue that he is not responsible
for the explosion, as the issue has already been decided in the proceeding 1

Introduction

What is it?
o

Prevents a party in a civil case from re-litigating an issue of fact or law that has
been determined by a prior order or judgment

Must be the same parties

48 | P a g e

Justification
o

Prevents contradictory rulings on the same issue

Avoid duplication and therefore saves time and money

Distinction between IE and RJ


o

IE

Once a court has decided an issue of fact or law necessary to its judgment,
that decision may preclude re-litigation of the issue in a suit on a different
cause of action involving a party to the first case

A final judgment on the merits of an action precludes parties from relitigating issues that were, or could have been, raised in that action

RJ

Exam

Leading Line
o

[Party X] will argue that [issue A] should not be re-litigated with an issue estoppel
plea, as [issue A] has already been decided in [earlier proceeding or this
proceeding]

Analysis
o

Property Damage and Personal Injury

General Rule

Points with Could have been Raised

General Rule

IE does NOT apply where separate proceedings are brought for


property damage and personal injury Linsley (In which the Vic SC
followed the English CoA in Brunsden)

IE extends to points that could have been raised Keith L in Arnold


citing Diplock LJ in Fidelitas

Where the Law has Changed

General Rule

IE will NOT prevent re-litigation of an issue if the law has changed


Arnold

Joinder of Parties (Before a Writ if Filed)


Joinder of Parties
49 | P a g e

Structure

Intro

Justification

3 types of joinder

Joinder inconvenient

Costs

Exam

Leading Line
o

Justification
o

The court may add extra parties to a proceeding, where these additional parties
are required to resolve issues or because their rights are affected

Joinder promotes consistency and finality while avoiding duplication, thus saving
time and money

3 Types of Joinder
o

A) Permissive

B) Discretionary

C) Compulsory/Necessary

Permissive Joinder (ALWAYS START HERE)


o

What is it?

P voluntarily adds additional Ds or co-Ps (co-Ps must consent)

2 Requirements

i) Common question of law or fact

Common q of law or fact would arise if separate proceedings were


brought by/against each of them 9.02(a)(i)

Apply on the facts

AND

ii) Same transaction

Rule
o

The rights claimed by P arise out of the same transaction, or


series of transaction
50 | P a g e

Same Transaction
o

Interpret broadly Adam J in Birtles

As this is a remedial rule and aims to avoid people


undertaking multiple causes of action

Does not need the same cause of action

Series of Transaction
o

Interpret narrowly Payne

It will NOT be the same series of transaction when:

Relief claimed arises from 2 or more different series of


transactions, when the participation of each individual
P is limited to participation in one series of transaction,
the other P not participating in that series Payne

Say what?

P1 and P2 must be involved in the same series of


transaction for there to be joinder

Payne:

2 Ps both ran different abattoirs

Both sought declarations as to the validity of


regulations affecting abattoirs

CH (Mason J and Barwick CJ): these claims did NOT


arise out of the same series of transactions as there
was no common participation by the Ps each series of
transaction was peculiar to each individual P

Note (Mason J Diss): Mason J dissented and argued


the phrase should be construed liberally

Discretionary Joinder (IF PJ FAILS, COME HERE)


o

What is it?

P can seek leave for the court to exercise its discretion and grant joinder
9.02(b)

Factors Court will Consider

TEST

What is most conducive to a just resolution of the dispute between


the parties Bishop

Factors FOR
51 | P a g e

Joinder unlikely to cause significant unfairness to any party Bishop

Desirability of limiting costs and delay of litigation Bishop

Avoid flooding courts with unnecessary litigation Bishop

Evidence to relied upon must be very similar to as not to create too


great a burden on the D A&J

If Only 1 Arm of 9.02(a) can be Satisfied

Unreported decisions suggest court can exercise discretion Glenwood

Compulsory/Necessary Joinder (IF DJ FAILS, COME HERE)


o

Context

Example: Person A buying a house from B&C B&C get a better offer
after entering into K for the sale of land A sues B and not C Court
refuses and compulsorily attaches C

Rules

Relief

Where P claims relief to which someone else is jointly entitled, all


persons jointly entitled must be joined 9.03(1)

Example
o

P1 and P2 jointly own a car both must be plaintiffs

Joint and Severable Liability (e.g. Torts)

J and S L means both parties (D and X) are liable for the full
amount

Where P claims again D who is jointly and severally liable with X, X


need not be made a D to the proceedings 9.03(2)

D must chase the X for contributions

Joint (but not severable) Liability under a K

Rule
o

Effect
o

Where D is jointly liable under a K with another, P should


claim against D and all persons jointly liable 9.03(3)

If P does not join all persons jointly liable as Ds, court can
stay proceedings until all persons are joined 9.03(3)

Severable
52 | P a g e

Timing

Able to be legally separated without invalidating what


remains (i.e. P can go after the whole amount from either D)

Court can make these orders before or after the non-joinder 9.03(14)

Policy

Theory behind compulsory joinder is that all parties who are necessary and
proper for the resolution of the dispute should be before the court

This is an exception to the rule that Courts dont decide who are parties to
disputes

Joinder Inconvenient

Context
o

D may argue a joinder is inconvenient and should therefore not occur

Rule
o

A joinder is inconvenient where it: 9.04

unintelligible, ambiguous, vague or too general, so as to


embarrass the opposite party who does not know what is alleged
against him. Bongiorno J in Gunns (July 2005) citing SCV in
Meckiff

In Gunns, the doc was embarrassed because the pleadings were so


long and complex

may delay the trial

may cause prejudice

Jury trials only

Where there is a risk the actions of D1 could unfairly tarnish D2

is otherwise inconvenient

Discretion
o

may embarrass

The court has discretion in ordering joinder and will consider

Effect of Inconvenient Joinder


o

If court finds a potential joinder inconvenient, it may order:

Separate trials

53 | P a g e

Exclusion of a claim

Cost orders for attending the irrelevant part of the trial

Removal of parties

Costs

Ordinary rule:
o

Losing D pays Ps costs

P pays winning Ds costs

Bullock order:
o

Losing D reimburses P for winning Ds costs

Sanderson order:
o

Losing D pays winning Ds costs directly

Leading Cases

Birtles v Commonwealth of Aus (1960)


o

Fact

W Plaintiff sued for damages for personal injuries arising from an industrial
action

Each of the defendants asserted that the claim was statute barred,
including that the plaintiff didnt serve a notice on the SEC within 6 months
of the accident, as required by statute

Plaintiff sought to add his original solicitor as a defendant alleging


negligence in not serving the notice

Held

Same transaction to be broadly construed it is a remedial rule


Not just the accident and injury sustained, but also subsequent matters
relevant to the action against the defendants
If plaintiff had to sue solicitor separately, there was a risk that:
Lose action against defendants because action statute barred; and
Lose action against solicitor because fail to satisfy the judge that
the defence of statute of limitations was sound (a prerequisite to
succeeding against the solicitor)

Payne v Young (1980)


o

Fact

54 | P a g e

Seven plaintiffs were all owners of abattoirs in WA

They sought a declaration that the inspection fee payable under the
Regulations was an excise and, as it was imposed by State legislation, it
was void, excise being within the exclusive jurisdiction of the
Commonwealth

However, each plaintiff made an individual claim against one defendant


only, for the repayment of fees paid to the defendant

Thus each relevant defendant had only a single claim made against it for
repayment of money paid under compulsion or paid under mistake of law

Held

CH (Mason J and Barwick CJ): these claims did NOT arise out of the
same series of transactions as there was no common participation by the
Ps each series of transaction was peculiar to each individual P

Claim for a declaration did not arise out of any transaction or series
of transactions

No common participation by plaintiffs in the inspection services


Each series of transactions was peculiar to each individual plaintiff

The most that can be said here is that the claims arise out of
similar transactions

Note (Mason J Diss): Mason J dissented and argued the phrase should be
construed liberally

Bishop v Bridgelands Securities (1990) FCA


o

Fact

Respondents sent out letters to many recipients to entice them to invest


money in Estate Mortgage, a company, which ultimately failed, and funds
were unsecured

The original applicant sought to join 114 other investors as co-applicants

Solicitor had consent of all of them to become parties

Cause of action was breach of section 52, and breach of securities law

At Fed Court, counsel for applicant conceded that r 9.02(a) could not apply

Fed Court rules did have equivalent of r 9.02(b), so sought to invoke


courts broad discretionary power

Held Wilcox J set out factors to consider:

Take whatever course is most conducive to a just resolution of this dispute


between the parties

55 | P a g e

but try to limit cost and delay inherent in litigation


AND
joinder was not going to result in any significant prejudice or
disadvantage
Should all be represented by the same lawyer (as a general practice):
Someone to be responsible for the running of the case in a coordinated manner
Plus should have substantial overlap in the evidence. Existed here.
If deny leave, would have had 114 separate claims in Fed Court on same
issue
Plus smaller parties might not have the funds to achieve justice
independently

A & J Partitions v Jolly (Vic SC)


o Fact

Similar proceedings as above many individuals invested money on the


basis of assurances of Victorian Government and auditors that it was okay
to invest

Plaintiffs knew, because of Payne v Young, that they would not succeed on
both limbs of 9.02(a)

So, 4,448 investors applied to join as plaintiff, and so applied under r


9.02(b)

Held (Beach J)

Application accepted under 9.02(b)

One factor considered was that 1 of the 2 limbs from (a) was met

Joinder of Claims by P
Structure

Intro

Justification

Discretion

Exam

Leading Line
o

P may join ANY number of claims against a D whether the P makes the claims in
the same or in different capacities and whether the claims are made against the
D in the same or in different capacities 9.01

Justification

56 | P a g e

Its important to join relevant, because if P doesnt, RJC may prevent the bringing
of the second claims at a later time

Discretion
o

Court has discretion whether to order joinder

Court will consider RJ, issue estoppel, overlap of claims, evidence to be called
AND joinder inconvenient

Joinder of Claims by D
Structure

Intro

3 Options
o

CC

Setoff

TPP

Exam

Introduction
o

There are 3 ways D can bring his own issues to a case:

CC

Setoff

TPP

Counter Claim (always look at set off as well)


o

Leading Line

A defendant who has a claim against the plaintiff may counterclaim


10.02(1)

D acts as P

CC acts as a sword and therefore 9.01 applies to a counterclaim as if P


were D and D were P 10.02(2)

CC is NOT a defence, it is a new cause of action therefore it entitles D to


relief, and will continue even if the first matter is dropped

Form

57 | P a g e

Pleaded in a document called a Defence and Counterclaim 10.02(3)

o Joinder

D may join any other person (whether party to proceeding or not) who, if D
were to bring a separate proceedings could be properly joined with P as a
party in accordance with 9.02 10.03

CC Inconvenient

Rule

Court has discretion to order a CC inconvenient where it: 10.06


o

unintelligible, ambiguous, vague or too general, so


as to embarrass the opposite party who does not know
what is alleged against him. Bongiorno J in Gunns
(July 2005) citing SVC in Meckiff

In Gunns, the doc was embarrassed because the


pleadings were so long and complex

may delay the trial

may cause prejudice

Jury trials only

Where there is a risk the actions of D1 could unfairly


tarnish D2

is otherwise inconvenient

Effect of Inconvenient CC

may embarrass

If court finds a potential joinder inconvenient, it may order: 10.06


o

(a) Separate trials for the CC and the Ps claim

(b) A claim in the CC is excluded

(c) Strike out the CC but allow the D to bring the claim in a
separate proceeding

(d) Order that a person joined as D to the CC cease to be a


party to the CC

Setoff
o

When Can it be Used?

Can only be used when the parties seek money (i.e. recovery of debt,
damages) 13.14
58 | P a g e

Acts as a Defence

Set-off is a statutory defence (not a claim and therefore dont need filing
fees etc)

Set-off Against What?

Can set off against anything need not be related to the current case

Can NOT be used for where injunction, declaration etc is sought

E.g. P owes D $50 from a loan, P sues D for $100, can offset the $50

Often used to set-off against a CC

Relationship with CC

Always ask for setoff with CC

Dont necessary ask for CC with every setoff

May not want to pay filing fee for new CC cause of action

May be something like contributory negligence with no cause of


action

How Much?

If setoff is more than the amount, D can CC for the outstanding

1) Does D have a claim against the P?

2) If yes, can counterclaim under 10.02(1)

2a) Document entitled Defence and Counterclaim 10.02(3)

3) D can join any number of claims against the P (9.01)

3a) 9.01 applies to counterclaim as if P were D and D were P 10.02(2)

4) D may join any other person who, if D were to bring a separate proceeding,
could be properly joined with P in accordance with 9.02

5) Is 9.02 made out?

5a) Would a common question of law/fact would arise if separate proceedings were
brought 9.02(a)(i)AND

5b) Do all rights to relief claimed arise out of

same transaction or series of

transactions? 9.02(a)(ii)

6) Counterclaim Inconvenient: Does the counterclaim embarrass, delay the trial,


cause prejudice to any party or otherwise cannot be conveniently tried? 10.06

6a) If there is a joinder inconvenient, the Court may order:

separate trial 10.06(a), exclude any claim in the counterclaim 10.06(b), strike out
claim without prejudice to Ds right to assert in separate proceedings 10.06(c),
order any person joined as D to be party to counterclaim 10.06(d)
59 | P a g e

THIRD PARTIES
WHAT IS IT?
D makes a claim against a TP not already party to the proceeding
CONTEXT
Where the transaction involves an intermediary
o E.g. A sells faulty car to B who on-sells to C C sues B B adds A as a TP
o E.g. B adds his insurance agency as a TP
EXAM

Separate Matter
o TPP considered a separate matter so same rules apply as would to original
proceedings
Concurrently Liable
o D and TP must be concurrently liable, not alternatively liable
Claims
o D claims one of the following against TP not already party to the proceeding:
11.01
A) Any contribution or indemnity 11.01(a)
Contribution: liability is only partial (only some/part of the
amount) i.e. 2 parties are negligent
Indemnity: entire obligation is paid/indemnified i.e. insurance
contracts, guarantors etc
B) Any relief or remedy relating/connected to original subject
matter and substantially the same as some relief/remedied being
claimed by Plaintiff 11.01(b)
C) Any question relating to/connected with original subject
matter of proceeding should be determined not only between P and D
but also between either/both of them and the third party 11.01(c)
Timing
o D can NOT filed a third-party notice unless they have first filed a
defence/counterclaim 11.05(1)
o TP notice may be filed:
Within 30 days after the time for the service of a defence 11.05(2)(a)
OR
At any time with leave of Court 11.05(2)(b)
OR
At any time with consent of the P & any other party who has entered an
appearance 11.05(2)(b)
Form, Filing and Service
o Filing

Claim commenced by filing TP notice in the Court, whereupon TP


becomes party to proceeding 11.04(1)

Form

60 | P a g e

TP notice in Form 11A shall be endorsed with a Statement of Claim


11.02
Service

Filed & served in the same manner as originating process is filed and
served on D 11.04(2)
TPN shall be served on third party within 60 days after it is filed
11.07(1)
Court may fix another period for service of a third party before
notice is filed 11.07(2)(a) or at the time it grants leave under
11.05(2) to file the notice 11.07(2)(b)
Court may extend period for service for such further period as it
sees fit 11.07(3) before or after expiry of period for service
11.07(4)
D must serve a copy of the TPN on the plaintiff 11.07(6)(a) and any
other party who has appeared 11.07(6)(b)
4th and Subsequent Parties
o TP can bring in 4th and subsequent parties with leave of the court 11.16
D wants to Sue a Party to the Current Proceedings who is NOT a P
o D can sue a party to the current proceedings who is not a P if they meet the
requirements under 11.01 11.15
o More information in the additional info section below

ADDITIONAL INFORMATION (DONT USE UNLESS SPECIFICALLY RELEVANT)


Appearance
o TPN shall state a time within which TP may file an appearance in the
proceedings 11.03(1)
Notice served in Victoria not less than 10 days after service 11.03(2)
(a)
Notice served out of Victoria within time limited by Rule 8.04(b), (c)
or (d) or within the time limited by any order of the Court
authorizing service of the notice 11.03(2)(b)
Rule 8.04: Time stated in writ/originating motion for the
defendant shall be
o Where served in VIC Not less than 10 days after service
8.04(a)
o Where served out of Victoria but in Australia 21 days
after service 8.04(b)
o Where served in NZ, PNG Not less than 28 days after
service 8.04(c)
o In any other case not less than 42 days 8.04(d)
o TP may file an appearance within the time limited for appearance 11.08(1)
(a) or within such further time as Court may allow 11.08(1)(b)
Third party who files appearance, on the same day, serve sealed copy
of the notice of appearance on the plaintiff 11.08(2)
o Defence: TP who files appearance shall serve defence to SOC within 30 days
of filing appearance 11.09(1)
o Counter-Claim by Third Party: TP who has claim against D may assert by
counterclaim and rule 10.02 shall apply as if claim by TPN were proceeding
commenced by write 11.10(1)

61 | P a g e

Where D has served counterclaimed, Order shall apply as if D were P


and P were D 11.17
Against Non-Plaintiff Party
Where D wants to sue someone who is already a party, but not a P in
the proceeding See pink diagram below
Where party claims against another party to proceedings, may make claim by
filing and service notice
within 60 days after the service on the party of the document in the
proceeding by which the claim in respect of which the notice is served
was made 11.15(1)(a)
or if document was served when the other party was not a party, within
60 after party became a party 11.15(1)(b)
Will NOT apply where claim could be made by counterclaim 11.15(2)
No appearance shall be necessary to a notice under 11.15(1) if party has
already filed an appearance in the proceeding or is a plaintiff 11.15(3)
Where a party claims against another party to the proceeding contribution
pursuant to Part IV of the Wrongs Act 1958, a notice under paragraph (1)
shall be in accordance with Form 11B. 11.15(5)

Claim
o
o

o
o
o

Use in situations where D wants to sue someone who is already a party, but not
a plaintiff to the proceedings. Similar to third-party procedure, but technically
different.
IF TRYING TO JOIN:
Complete outsider: Third Party Procedure
Plaintiff: Counter-claim
Someone else involved in the action: Counter-Claim
Someone already in the action but not the plaintiff: 11.15

62 | P a g e

AMENDMENT, ADDITION, SUBTRACT, REMOVE AFTER WRIT IS FILED


WHAT IS IT?
Changing a writ AFTER it has been filed
C.f. Joinder which occurs BEFORE the writ is filed
CONTEXT
Where a name was spelt wrong in the writ
Adding a party etc
EXAM

2 ways to amend a writ after it has been filed


o Order 36 Amendment

Better as allows circumvention of limitation period


Usually used when there is a technical defect
Rule 9.06 Add, Subtract, Remove

Changing something substantial like the cause of action/adding a party

AMENDMENTS: ORDER 36
WHAT IS IT?
Amending a technical mistake AFTER the writ has been filed
CONTEXT
Where a name was spelt wrong in the writ
A typo in the writ etc
GENERAL RULE
Rule When are amendments allowed?
o Court may order amendment of document at any stage for the purpose of:

Determining question in controversy 36.01(a)


Correcting any defect or error 36.01(b)
Avoiding multiplicity of proceedings 36.01(c)
What is a Document
o Document includes originating process, indorsemsent of claim on
originating process, pleading 36.01(2)
New Cause of Action Arising AFTER the Proceeding Commenced
o Can add or substitute a cause of action arising after commencement of
proceeding 36.01(3)
Correcting a Mistake
o Can correct a mistake in name of a party, even if it results in substituting
parties 36.01(4)
o Where correction is to name of a party (substituting another person),
proceeding is taken to have commenced with response to that person

63 | P a g e

36.01(5)
LIMITATION PERIOD
Where Limitation Period has Expired
o Court may make an order under 36.01(1) even if the relevant limitation
period has expired 36.01(6)

ADDITION, SUBSTITUTION AND REMOVAL: ORDER 9


WHAT IS IT?
Adding, substituting or removing a party AFTER the writ has been filed
CONTEXT
Same as joinder, but for AFTER the proceeding has been commenced
GENERAL RULES
Interpretation
o Court will refer to 9.02 (joinder) in applying 9.06
Timing
o P or D may add, remove or substitute a party at any stage of the proceeding
9.06
Limitation Period
o P can use 9.06 after the limitation period has expired, but D will be able to
use the defence of limitation period
P will have to seek an extension of time
o C.f. Order 36 amendment in which you can amend after limitation period
REMOVAL, ADDITION, SUBSTITUTION
Removal
o Court may order a person not a proper or necessary party cease to be
a party 9.06(a)
Addition
o If adding P2, you need P2s consent in writing 9.07(1)
o Court will only allow a party to be added if:

i) They should have been joined 9.06(b)(i)


Apply compulsory joinder test under 9.03
OR
ii) There presence is necessary to ensure all Qs are effectually and
completely determined and adjudicated upon 9.06(b)(i)
Apply permissive joinder test under 9.02
Tougher to prove for D
OR
iii) The person and any party to the proceeding may have a question
between then arising out of, or relating to, or connected with, any claim
in the proceeding which it is just and convenient to determine
9.06(b)(ii)

64 | P a g e

To determine J&C apply 9.02


o Argue efficiency saves time and money
Look at inconvenience under 9.04
o Evaluate prejudice to other party (delay)

Substitution
o A person under para B (addition) can be substituted for one under para A
(removal) 9.06(c)

CONSOLIDATION
WHAT IS IT?
2 or more proceedings on the same issues/matters that are pending in
court can be consolidated into 1 proceeding
CONTEXT
E.g. P sues D1 and D2 in two separate cases for the same cause of action on the
same facts
GENERAL RULES
When can this be used?
o Where 2 or more proceedings pending in the Court and:

Common question of law/fact arises in all/both of them 9.12(1)(a)


OR
Rights to relief claimed arise out of same transaction/series of
transactions 9.12(1)(b)
OR
Desirable in circumstances 9.12(1)(c)

Discretion
o Generally subject to discretion of the judge 9.12(2)
o Exception: Court MUST join if it would have been proper to join the claim
between the P in the current proceeding and the parties in the second
proceeding Bolwell
Effect
o The court may order the proceedings be: 9.12

Consolidated
Tried at the same time
Immediately subsequent
Any proceedings stayed until determination of another
proceeding

AMICUS CURIAE AND INTERVENERS


INTERVENERS (SEEKS TO JOIN THE PROCEEDING)
WHAT IS IT?
A non-party seeks to join the proceeding
o NP with no direct involvement in the transaction that forms the
dispute wishes to be involved
65 | P a g e

Thus has issues effected, but can NOT use joinder as they dont meet
the requirements

CONTEXT
Insurance company who may have to pay insurance depending on the outcome
Another business in the industry affected by the decision
GENERAL RULES
Leading Line
o NP joins ongoing litigation without the permission of the original litigants
Rationale
o Judgment may affect the rights of NPs, who therefore should have a right to
be heard
TEST
o Use the addition test in 9.06(b)
Can be used by an intervener, where that interveners legal rights
may be affected
Where someone cannot show their interest, more appropriate that they are
amicus curiae Levy v Victoria

Effect
o An intervener is a party to the case (Not a P or a D, but an I, which is a
category in itself)
o I can examine witnesses
Statute
o Some powers of intervention are given in statute (e.g. ACCC, HREOC, AG) and
therefore no leave is required

AMICUS CURIAE (FRIEND OF THE COURT WHO IS NOT A PARTY)


WHAT IS IT?
Friend of the court who is NOT a party, but can offer a submission on law
or relevant fact to assist the court
CONTEXT
Community organisation affected by the decision
GENERAL RULES
Leading Line
o A person who is willing to offer the Court a submission on law or
relevant fact that will assist the Court in a way which the Court would
not otherwise have been assisted Brennan CJ in Levy v Victoria
TEST
o TEST
AC will be heard when the Court is of the opinion that it will be
significantly assisted by the AC
o Application
Assessed by considering delay and cost
Granted provided that any cost to parties or delay is not
disproportionate to the assistance that is expected

66 | P a g e

LEADING CASE
Levy v State of Vic (1997)
o Regulations under the Victorian Wildlife Act 1975 & Conservation, Forests &
Lands Act 1987 made it an offence to be within an area set aside for the
hunting of game birds at the beginning of the hunting season without a
licence
o Laurence Levy opposed duck shooting and in June 1994, at the start of the
duck shooting season, he was charged with being in a hunting area during a
prohibited time without a licence
o Levy claimed he was in the area at the relevant time to collect dead and
wounded ducks legally shot, as well as dead and wounded endangered
species illegally shot
o He also argued he was attempting to draw media attention to the cruelty of
duck shooting & influence peoples political judgment towards the Gov's
continued support of duck shooting
o Mr Levy argued that the regulation under which he was charged was invalid
as it infringed the implied freedom of political communication
o Court Held (Levy loses)

6 separate judgments All 7 members of the HC upheld the regulation


Amicus will be heard when:
Court is of opinion that it will be significantly assisted;
Provided that any cost to the parties or delay is not
disproportionate to the assistance that is expected

67 | P a g e

6) REPRESENTATIVE PROCEEDINGS
(GROUPS AS PARTIES)
WHAT IS IT?
There are 3 ways to have multiple people in one party
o 1) Joinder/Addition (discussed above)
o 2) Order 18 Same Interest Proceedings
o 3) Part 4A Class Actions
This topic will discussion Order 18 and Part 4A
CONTEXT
Look at joinder first
o If Joinder is inconvenient or impossible, look at order 18 or part 4A
If more than 7 Ps, look at Part 4A
If you want D as the representative party use Order 18
GENERAL RULES
If, under Order 9, joinder of several parties would be inconvenient or impossible
o Two types of proceedings to consider:
Traditional same interest proceedings (Order 18 SCR)
Class actions:
FC opt out proceedings (Part IV A Federal Court Act)
VSC opt out proceedings (Part 4A Supreme Court Act)
SAME INTEREST PROCEEDINGS
WHAT IS IT?
Where numerous Ps or Ds have the same interest in a proceeding they can
all have their interest represented by some of all of the Ps/Ds
CONTEXT
Less than 7 Ps where all Ps are not identifiable
Can be used by P and D
EXAM

Leading line
Does P/D have the same interest?
Define the class
Courts discretion to refuse

SAME INTEREST PROCEEDING


Leading Line
o Numerous Ps
Where numerous Ps have the same interest in a proceeding
18.01(a) the proceeding may be commenced by any one or more
Ps with the SI, representing some or all of them 18.02
68 | P a g e

Numerous Ds

Where numerous Ds have the same interest in a proceeding


18.01(a) the proceeding may be commenced against any one or
more Ds with the SI as representing some or all of them 18.02
Estate of a Deceased Person / Property Subject to a Trust
o Same applies for proceedings regarding the:
Administration of the estate of a deceased person 18.01(a)(i)
OR
Property subject to a trust 18.01(b)(ii)
Defining Same Interest
o Previously
Narrow interpretation
Will not be satisfied where proceedings brought on behalf of Ps
under separate but otherwise identical contracts Markt (UK
COA)
o Requires common interest, grievance and remedy
o This prohibits proceedings where claims arise out of
separate contracts, and the remedy sought is
damages
o Now
Broad interpretation (overruled Markt)
Satisfied where there is a community of interests between
the plaintiffs and the class (Brennan J) in any substantial
question of law or fact Carnie v Esanda (HCA)
Analysis
Ps Affected in the same way
o All Ps were affected in the same way if the Ps received
judgment, and therefore there is a community of interest
Brennan J in Carnie
Should be interpreted in light of its purpose
o Facilitating administration of justice by enabling parties to
have SI to secure a determination in one action Per
Mason CJ, Deane and Dawson JJ in Carnie
Common question and equally effected
o SI where there is a significant question common to all
members of the class and they stand to be equally
affected by the declaratory relief which the appellant
seeks Per Toohey and Gaudron JJ in Carnie
Separate Contracts
Is NOT a bar to SI Carnie
Where Damages are Sought
Carnie has no claim of damages thus it is possible the Markt
narrow interpretation will still apply in defining SI in a seeking
damages where individual assessment of those damages for
each P is required
Although given the courts focus on convenience and
flexibility its possible a broad view would be preferred
anyway
As it turns out, irrelevant because of S33C(2)(a)(iii) Only
applies to class actions with 7+
Define the Class
o Rule
There is NO need to ID every member of the class, although they much
be identified with sufficient particularly Carnie (Per Toohey &
Gaudron JJ)

69 | P a g e

E.g. Class is all people who have tapped your mum (this is NOT ok no
sufficient particularity, unless your mum kept a list?)
E.g. Class is those people with a loan agreement with the D,
which is inconsistent with the Credit Act (this is ok)
E.g. Class is all members of the St Kilda Tennis Club as at 3
June 2001 (this is ok)
Courts Discretion (quick)
o Rule
Court has discretion to disallow representative proceedings r18.02
o Considerations
The effect that being represented has on the pool of Ps and Ds
More likely to allow where declaration is sought as in Carnie

LEADING CASES
Markt v Knight Steamship (1910) Eng COA (Overruled by HCA in Carnie)
o Facts:
Defendant was a ship and carried large cargo from 45 different
customers
Ship sunk by Russian war ship during Russo-Japanese war
Ps all lost cargo and sued under UK equivalent of order 18 in a
representative capacity for breach of contract and negligence on the
part of the shipping company
I.e. P applied to represent its own interest and interest of other
44 victims
Each P had their own contract 45 separate contracts
Cargo being shipped to different destinations
P alleged they had suffered a common wrong
I.e. One wrongful act which affected all Ps
o Held:
P loses RP are NOT allowed
Even though terms identical, each contract had different cargo and
prices etc
So each claim had to be examined on its individual merits
Fletcher Moulton LJ:
Damages are by their nature a personal remedy, and so no
representative action should lie where damages is the main
remedy sought

Carnie v Esanda (1995) HCA


o Facts:
Mr and Mrs C (farmers) borrowed money from Esanda Finance to buy
farm equipment
Fell behind in payment so re-financed with a revised loan agreement
with Esanda to enable them to pay according to their now-reduced
means
This agreement had to comply with certain statutory
requirements
When they finally defaulted on the new agreement, they sought to set
this new agreement aside on the basis that it did not comply with those
statutory requirements
Esanda were supposed to disclose certain fees, which were not
disclosed, thus the Carnies sought to have it declared void
They did so on their own behalf and behalf of many others who had
also entered such agreements with Esanda
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Held:
This was an appropriate case for the representative proceeding on the
basis of the NSW equivalent of order 18
O 18 is a flexible rule of convenience
Should not be interpreted restrictively
Even though Carnies & represented parties had separate contracts, did
not eliminate convenience of finding a common right to a release
Not necessary for representatives to identify every member of the
class; just identify class with sufficient particularity
SOC described it as Those who have a credit, sale or loan
contract with respondent that has been varied in a manner
inconsistent with the Credit Act.
Remitted to NSW Supreme Court, and Justice Young required notice to
be given to all prospective members of that class
Then the matter settled
Analysis
One of the problems of Markt was removed, re separate contract
But the issue of damages was not resolved, as not seeking damages in
that case
Still unlikely that you could use Order 18 if seeking damages
As it turns out, wont need to because of S33C(2)(a)(iii) Only
applies to class actions with 7+

CLASS ACTIONS
WHAT IS IT?
7+ Ps are represented by one/some Ps
Brought in to replace Order 18 Same Interest
CONTEXT
7+ Ps represented by one/some Ps
Note that rules are for the FEDERAL COURT and SUPREME COURT only
o Use the right set of rules!
EXAM

Does P meet the Requirements to Bring a Class Action


Process of Commencing
Opt Out / Notice
Discontinue
Costs

FEDERAL COURT: OPT-OUT PROCEEDINGS (FEDERAL COURT ACT PART IVA)


DEFINITIONS
From S33A
o Representative Proceedings
o

Proceedings that part IVA allows for are


Representative Party

Person who commences the proceeding


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Group Members

Members of group on whose behalf the proceeding is commenced

Applicant AND Respondent


REQUIREMENTS TO COMMENCE CLASS ACTIONS
3 Requirements to Commence Proceedings (from S33C(1)) Must have all 3
o 7+ Ps have Claim Against the Same R
Numbers of Ps
Rule
o There must be 7+ Ps who have claim against same R
33C(1)(a)
If Less than 7?
o If less than 7 use joinder
7 or 8?
o Where there are 7 or 8, might want to use joinder as if any
1 or 2 Ps drop out then class action fails
All Ps have Claim Against all Rs
Rule
o Each member of the group must have a claim against
every respondent Sackville J in Philip Morris (followed
by Rod Investments)
Criticism
o Heavily criticised by Finkelstein J in Bray v Hoffman-La
Roche (VLRC agrees with Finkelstein)
o Argued it has effect of defeating purpose of s33C
o Suggested that so long as everyone has an action against
someone else, the section should apply (as long as
requirements met)
o Similar/Related Circumstances
Rule
The claims are all in respect of, or arise out of, the same,
similar or related circumstances 33C(1)(b)
o Substantial Issue of Law or Fact
Rule
The claims of all Ps give rise to a substantial issue of law or
fact 33C(1)(c)
Multiple Issues?
Where multiple issues, just have to show that one of them is
substantial Johnson Tiles v Esso
PROCESS OF COMMENCING
Things that dont Affect RP
o Relief Sought does NOT affect RP
RP can be commenced whether or not the relief sought is:
Equitable S33C(2)(a)(i)
Consists of damages S33C(2)(a)(ii)
Includes claims for damages that required individual assessment
S33C(2)(a)(iii)
o Note this addresses the Markt/Carnie problem RP can
apply for proceedings seeking damages that need to be
individually assessed
The same or different for each person represented S33C(2)(a)
(iv)

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Separate Ks/Transactions/Acts/Omissions does NOT affect RP


RP can be commenced whether or not the proceeding:
is concerned with separate Ks/transactions between R and
individual group members S33C(2)(b)(i)
involves separate acts/omissions of R in relation to individual
group members S33C(2)(b)(ii)

Originating Process
o Writ
Must be commenced by writ (not originating motion) s33H(1)
o Endorsement on the Writ
Endorsement on the writ must include: s33H(2) FCA
(a) describe or otherwise identify the group members to
whom the proceeding relates; AND
(b) specify nature of the claims made on behalf of group
members and the relief claimed; AND
(c) specify the questions of law or fact common to the
claims of the group members
o Names and Numbers in the Group
Not necessary to name the members or specify the number of people
in the group s33H(3)
o Standing
All Ps must have sufficient standing to commence proceedings on
their own behalf s33D FCA

OPTING OUT + NOTICE


Opting Out
o Policy
Potential RJC issues as if P1 is a member of a group in a proceeding
that is brought, P1 is bound by the decision of that proceeding and can
NOT reopen the case
System could either be opt-in or opt-out
Opt-in: members of the representative group must elect to join
the group
Opt-out: members bound by judgment unless they opt-out
(used in Aus)
o Opt-Out Rules
Rule
Group member may opt out of the representative proceeding by
giving written notice s33J(2)
Court to Fix Opt-Out Date
Court must have fixed a date before which a group member
can opt out s33J(1)
Except with leave of the Court, trial must not commence
earlier than the opt out date s33J(4)
Court can extend the period to opt out s33J(3)
Notice
Notice must be given to group members in relation to:
s33X(1)
o The commencement of proceeding
o The right of group members to opt out
o The opt out date

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Can be given by any means (I.e. ad in the newspaper)


Court should not order personal service, unless satisfied
that is reasonably practicable and not unduly expensive s33Y(4)

DISCONTINUATION OF PROCEEDINGS
Rule
o Court can order the proceeding discontinue where:
Group number drops below 7 s33L FCA
Costs of identifying and distributing proceeds would be excessive
s33M FCA:
Interests of justice require it because s33N FCA
(a) costs would exceed costs of individual proceedings; OR
(b) relief can be obtained by means of proceeding other than
representative proceeding; OR
(c) Wont provide efficient & effective means of dealing with
claims of group member; OR
(d) Otherwise inappropriate that claims be pursued by means of
a RP
Discretion Required
o Cannot discontinue representative proceedings or settle unless get approval
from the Court s33V
COSTS

Group Members and Costs


o Can be ordered against representative party (P) or respondent (D) but not
against the group member s43(1A)
Federal Court Act: s 43(1A)

Supreme Court Act: s 33ZD

Exception: sub-groups ss 33Q & 33R what is this

Court can create a sub-group within the RP if there are specific issues
to be isolated within the group

The court may elect P1 to be RP of the sub-group

If court does this, P1 is liable for costs associated with the subgroup instead of the main P representing the whole class

LEADING CASE
Phillip Morris v Nixon (2000) FFC
o Facts
Representative proceeding commenced on behalf of a group of people
who suffered a disease caused by smoking
Ps claimed to have been induced to begin/continue smoking by the
actions of one or more of the three tobacco companies they names as
respondents
o Problem
Conduct of respondents was not collective conduct
Three separate companies all running their own businesses, producing
their own ads, all had same sort of product and same goal
Each P smoked different brands, changed brands, induced to start and
continue for different reasons
But all applicants didnt have claim against all Rs
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Held
Sackville J: If the individual claims of each member of the represented
group had to be pleaded by reference to specific dates and events, the
representative procedure might well be rendered ineffective for the
very kind of group claim it is intended to facilitate.
Each group member must have a claim against every respondent

SUPREME COURT OPT OUT PROCEEDINGS: SAME RULES APPLY


SAME

Relevant section is Part 4A Supreme Court Act


o Exactly the same sections as FCA, but using the SCA
Came into operation in 2000
Based on Part IVA of the FCA also an opt out system

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7) SERVICE
WHAT IS IT?
Procedure by which the P informs the D of the claim being made against
the D
CONTEXT
Different rules apply for:
o Different types of Ds (special party: disabled, company, minor, gov,
partnership, foreign)
o Different types of actions
o Service outside the jurisdiction (Vic, another state, another country)
EXAM

Intro Special Party? What document? Location? Personal/Ordinary


Type of Service:
o Personal Service
o Ordinary Service
o Substituted Service
Proof of Service
Service Outside Jurisdiction
Ds Options Once Served

BACKGROUND
Purpose
o Give D notice of the claim so they are aware of it and can take reasonable
steps to resist/defend
Exception to Requirement of Service
o Applications made ex parte (e.g. Anton Piller order)
STARTING POINT/OVERVIEW
1) Special Party
o Is the party to be served a special party?
Corporation
Partnership
Minor
Handicapped
Government (Cwth or Vic)
Motor Vehicle Injuries (TAC)
2) Out of Jurisdiction?
o Is the party to be served within the jurisdiction?
Within Vic
In another State
In another Country
3) Personal Service
o Personal service is only used where it is specifically required: r6.01
Writ
TP notice r11.04(2)
Subpoena on witness r11.04(2)

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4) Ordinary Service
o Everything else
o E.g. interlocutory applications

SPECIAL PARTIES
CORPORATIONS

Service effected by leaving with mayor/chairman/president/other head officer/town


clerk/ clerk/manager/secretary/other similar officer of the corporation 6.04(a)
S109X Corporations Act: Service (including of originating process) may be
effected by
o Leaving it/posting it to companys registered office 109X(a)
o Delivering copy to director who resides in Australia 109X(b)
o Leaving It/posting it to address if liquidators office 109X(c)
o Leaving It/posting it to address of administrator 109X(d)

FOREIGN CORPORATIONS

Registered foreign companies may be served by leaving or posting the originating


process to the address of the local agent 601CX Corporations Act
Only applies if the local agent is in the current jurisdiction

MINORS

Personal service on U18 is effected by serving a parent/guardian of the minor, and if


there is none, on the person on whom the minor resides or in whose care the minor
is 6.04(b)

HANDICAPPED PERSONS

Effected by serving it on a litigation guardian (if there is one), or where there is


none, the person with whom the party resides or whose care s/he is in
6.04(c)

COMMONWEALTH GOVERNMENT

Effected by serving it on secretary of the AGs department or Australian


Government Solicitor 6.04(d)

VICTORIAN GOVERNMENT

Effected by serving it on the Australian Government Solicitor 6.04(e)

PARTNERSHIPS

Where 2 or more persons carry on business as partners in Vic, they may be


sued in firm name 17.01(1)
o Any person carrying on business within Victoria in a name or style other than
that person's own may be sued in that name or style as if it were the name of
a firm, and Rules 17.02 to 17.09 shall apply, with any necessary modification,
as if that person were a partner and the name in which the person carries on
business were the name of that person's firm. 17.10
Originating process against partners in the firm name under 17.01 may be
served on
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Any one or more of the partners 17.03(1)(a) or any person at the principal
place of business in Victoria who appears to have control or management of
the partnership business 17.03(1)(b)
Whether or not any partner is out of Victoria 17.03(2)

MOTOR VEHICLE INJURIES

For personal injury or death arising out of a motor vehicle accident, the originating
process must be served on the defendant and the TAC 6.05

PERSONAL SERVICE
WHAT IS IT?
A specific type of service that is required in certain circumstances
CONTEXT
Look
o
o
o

for:
Writ
TP Notice
Subpoena on Witness

WHICH DOCUMENTS
Rule
o Only the documents that are required/permitted to be served personally,
need be served personally including: 6.01
Originating process must be served personally 6.02(1)
Third Party Notice must be served personally 11.04(2)
Subpoena on a witness must be served personally 42.05
o Other Documents Not Requiring Personal Service

You can serve other documents personally but will not retrieve costs
where unnecessarily incurred

Originating Process
o Originating process must be served personally, on each D, except where
provided 6.02(1)
Copy shall be sealed in accordance with 5.11 6.03(2)
Not necessary to show an original document, in order to effect personal
service 6.03(4)
o An originating process must be served within 12 months of issue unless
extended by court order, otherwise it becomes stale 5.12

HOW TO EFFECT PERSONAL SERVICE


First Attempt at Personal Service
o Effected by leaving a sealed copy of the document with the person to
be served 6.03(1)(a)
Second Attempt (If person does NOT accept first attempt)
o If person doesnt accept, put copy down in persons presence & telling
them nature of doc 6.03(1)(b)
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This notice is to give you warning of that fact. I intend to push the
notice under the door for you Grazcyk v Grazcyk (did not say it
was a writ, but did say the nature of the document, which was
held to be valid service)
Must Ensure the Person to be Served get Notice

Ensure originating process in form of a document will come to the


notice of person named as a party so that any later default in
defending Ds position is fairly to be attributed to a decision of that
person Kirby ACJ in Ainsworth v Redd
Alternatives to Personal Service
o Solicitor Makes Notes

Where solicitor, with authority, makes notes on the copy of the


document that document is accepted on behalf of D, service will
be taken to have been served on D on the day solicitor made
the note 6.09(2)
Applies regardless whether document required to be served personally
or not 6.09(1)
Comes to the Notice of the Person to be Served

Where, for any reason, a document hasnt been served in manner


required by Rules but has come to the notice of the person to
be served, document shall be taken to have been served on the day it
came to the persons notice 6.11
Agreement to Service

Where there is an agreement to service, service in accordance with


the agreement will suffice 6.14

LEADING CASES
Ainsworth v Redd (1990)
o Facts:
D was an American who was being sued for defamation
D was in Australia for purpose of obtaining a poker machine license
Process server held out writ and said these documents are for you
D appeared to look at the documents, but did not take them
Ds American lawyer took it, thinking it had something to do with the
poker machine license
o Issue
Had personal service been effected?
o Held (Kirby ACJ):
Service is valid under (a) but not (b)
(re 6.03(1)(a)) the law presumes that the person will become aware
of the document. Self-interest may then be relied upon to ensure that
an appearance is entered and a defence mounted, if that is desired.
(re 6.03(1)(b)) the person may walk away refusing to pick up the
document which is set down in that persons presence. In those
circumstances, to fix the person with all of the consequences that may
follow, the law understandably requires that the nature of the
document should be described.
To conclude that the service was invalid would frustrate purpose of rule
Relevant object is to ensure that originating process in form of a
document will come to the notice of person named as a party so that
any later default in defending the Ds position is fairly to be attributed
to a decision of that person.
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ORDINARY SERVICE
WHAT IS IT?
A specific type of service that is used when personal service is NOT
required
CONTEXT
Look for:
o Generally used for later proceedings (not initiating)
o Most things except OPs
ORDINARY SERVICE
Rule
o Where personal service is not required, documents may be served by:
Leaving at Address
Leaving document at proper address of the person to be
served; 6.07(1)(a)
Posting
Posting the document to the person to be served at the
proper address; 6.07(1)(b)
Company In Accordance with Act
Where provisions are made by/under any Act for service of a
document on a corporation, serving in accordance with that
provision 6.07(1)(c)
DX
Where a solicitor has facilities for the reception of documents at
a document exchange (DX) by leaving the document in that
DX 6.07(1)(d)
Fax
Where the solicitor has fax facilities, sending it by fax.6.07(1)
(e)
Proper Address for Service
o Proper Address

Where a person to be served has no address for service, then the


proper address is:
Individual
o An individuals usual or last known place of residence or
business 6.07(2)(a)
Individual being Sued in Firms Name
o Principal or last known place of business of a firm 6.07(2)
(b)
Corporation
o The registered or principal office of the corporation
6.07(2)(c)
No Address

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Where a party is in default of appearance, or has no address for


service, the filing of the document shall have the effect as service of
the document on that person R6.12(1)

SUBSTITUTED SERVICE
WHAT IS IT?
Where personal/ordinary service is impractical, the court can allow steps
be taken to bring the documents to the notice of the person to be served
CONTEXT
Used where personal/ordinary service is impractical
o Extensive efforts to serve personally
o Cost/geography/time factors
SUBSTITUTED SERVICE
Rule
o Where it is impractical to serve under the Rules, the Court may order that
steps be taken as the Court specifies for the purpose of bringing the
document to the notice of the person to be served R6.10(1) SCR
Where Person to be Served is Outside Vic
o Substituted service can be made notwithstanding that the person to be
served is out of Victoria or was out of Victoria at the commencement of
proceedings R6.10(3) SCR
When will an Order for SS be Made?
o An order for substituted service should not be made unless it appears:
A) That there exists a practical impossibility of actual service;
P must show extensive efforts were made to effect personal
service Munkarra v Fischer
Merely cost and geographic spread of Ds will not be enough;
however, if there is a time limit, that might make actual service
impossible Amos Removals & Storage v Small
B) That the method of substituted service asked for is one which
will in all reasonable probability, if not certainty, be effective to bring
knowledge of the writ to D; and
C) But for practical difficulties, personal service is legally permissible
Methods of SS
o Criteria

Is there a reasonable belief that the method will bring the proceedings
to the knowledge of D?

Form

Post, newspaper notice, serve a close friend of D, facebook?


Process of Seeking SS
o Ex parte application supported by affidavit justifying the application including:

Details of attempts that have been made to serve; AND


The proposed method of substituted service

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If SS ordered, service usually deemed to be effected after the expiration of a


specified period after compliance

LEADING CASE
Amos Removals & Storage v Small (1981)
o Facts:

P sought an injunction against 19 Ds who were committee members of


a union
P said personal service impracticable because:
Cost of effecting service on 19 Ds (not overly relevant);
Geographical spread of defs (didnt carry much weight);
Short period of time within which service had to be effected
(made personal service impractical)

Held:

Leave granted to effect substituted service on a solicitor acting for Ds


in other proceedings

PROOF OF SERVICE
WHAT IS IT?
Proof that D has been served in the form of an AOS
CONTEXT
Used where:
o D fails to put in an appearance; OR
o D argues service did NOT occur
AFFIDAVIT OF SERVICE
Content of the AOS
o An affidavit of personal service must state: R6.17(1) SCR

Process
o AOS is completed and signed by the person who served, immediately after
service takes place R6.17(1) SCR
o Must exhibit a sealed copy of the originating process R6.17(3) SCR

(a) by whom the document was served;


(b) the hour of the day, the day of the week and the date on which it
was served;
(c) the place of service; and
(d) the way the person served was identified

This means you show the sealed copy of the OP when filing the AOS

Posting
o Service is deemed to be effected when the process would have been
delivered unless proved to the contrary
o Per R6.07(5) SCR: For post deemed 4 working days after posted, or in the
ordinary course

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SERVICE OUT OF THE JURISDICTION


WHAT IS IT?
Serving someone who is not in Victoria
OUTSIDE VIC, BUT WITHIN AUS
Intro Crap
o Territories are Treated as States
Territories are regarded as states for the purpose of the Act s5 Service
and Execution of Process Act 1992 (Cth) (SEPA)
o Cross Vesting (Remember?!)
The court may order a stay in proceedings if there is a more
appropriate court to determine the matter s20(4) SEPA
Individuals
o Rule
An originating process issued in a state/territory can be served
in another state/territory without the leave of the Court s15(1)
SEPA
o Effect
Service has the same effect, and may give rise to the same
proceedings, as if it had been served in the place of issue s12
SEPA
o Which States Rules Apply?
The state in which proceedings were issued
Service on an individual is effected the same way as service in the
state where proceedings were issued s15(2) SEPA
Company
o Service is effected by leaving it at or by sending it by post to the companys
registered office as per the rules above, regardless of what state the office is
in s15(3) SEPA (referring to S9 SEPA)
o Business Presence in Vic
If Co has BP in Vic, use r6.04a above and s10 SEPA (referred to in
s15(4))

OUTSIDE OF AUS
Rule
o Originating process may be served out of Australia without leave of the Court
where one of the nexus requirements are met R7.01(1) SCR
o OP must include endorsement indicating which nexus factor is met so that D
can respond
Nexus Requirements
o (a) the whole subject matter of the proceeding is land situated within
Victoria (with or without rents or profits) or the perpetuation of testimony
relating to land so situate;
o (b) any act, deed, will, contract, obligation or liability affecting land
situated within Victoria is sought to be construed, rectified, set aside or
enforced in the proceeding;
o (c) any relief is sought against a person domiciled or ordinarily
resident within Victoria;
o (d) the proceeding is for the administration of the estate of a person
who died domiciled within Victoria or is for any relief or remedy which might
be obtained in any such proceeding;
o (e) the proceeding is for the execution, as to property situate within
Victoria, of the trusts of a written instrument of which the person to be
83 | P a g e

served is a trustee and which ought to be executed according to the law of


Victoria;
o (f) proceeding brought to enforce, rescind, dissolve, rectify, annul or
otherwise affect a K, or recover damages or other relief in respect of
breach of K, and K
(i) was made within Victoria;
(ii) was made through an agent carrying business within Victoria;
(iii) is governed by the law of Victoria
o (g) proceeding brought in respect of a breach committed within Victoria
of a K
o (h) proceeded is founded on a K which the parties agreed that the Court
should have jurisdiction
o (i) proceeding founded on a tort committed in Victoria
o (j) the proceeding is brought in respect of damage suffered wholly or
party in Victoria and caused by a tortious act or omission wherever
occurring
o (k) injunction sought ordering D to do or refrain from doing anything within
Victoria
o (l) proceeding is properly brought against a person duly served and
another person is a necessary or proper part of proceedings KEY
o (m) proceeding either brought by a mortgagee seeking sale of properly
or mortgagor seeking redemption, but does not seek any personal judgment
or order for payment of any moneys due under the mortgage
o (n) proceeding brought under the Civil Aviation (Carriers Liability) Act
1959 (Cth)
Service Requirements
o Need NOT be Personally Served
Can be served:
Personally according to the law in Vic
OR
In accordance with the law of the country in which it is served
R7.03 SCR
o No Appearance
Where no appearance is filed, P may be allowed to proceed if they
have complied with R7.01 R7.04 SCR
o Convention
Service may be affected in a foreign country pursuant to a Convention
R7.09-7.15 SCR
Setting Aside Service Outside Aus
o D may apply to have the Court (per R8.09 SCR) set aside service of the writ;
or stay the proceedings on the ground that R7.05(2) SCR
(a) Service was not authorised by the Rules; OR
(b) Victoria is not a convenient forum (look at FNC)

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8) APPEARANCE
WHAT IS IT?
Procedure by which D informs P that he intends to defend the proceedings
o If D does not wish to defend, he does not make an appearance and
default judgment may be entered against him
CONTEXT
Ds response to being served with an OP
EXAM STRUCTURE
Intro Crap
Ds Options to Respond to Service

INTRODUCTION TO APPEARANCE
APPEARANCE
What is it?
o Procedure used to inform P that D intends to defend proceedings
o If D does not enter an appearance, a default judgment may be entered
against him 21.02
Purpose
o Informs Plaintiff that the action will be defended
o Gives name of the Defendants solicitors
o Provides address where service can be effected on the defendant
WHO MAY ENTER AN APPEARANCE?
Defendant
o May file an appearance in person or through Ds solicitor 8.03
People under disability
o Litigation guardian can enter Ds appearance 15.02(1)
Corporation
o May be filed by any person duly authorised 8.03(2)
Partner sued in firm name
o Own Name
o

Partner must appear individually or in his/her own name 17.04


Served as Manager

Person served with originating process as person having


control/management, may not file an appearance unless that person is
a partner 17.05
Served as Partner

Person served as partner, may file appearance stating they file as a


person served as a partner 17.06(1)(a)
Third Parties
o Must also enter appearances within the time limited for appearance 11.08(1)
(a) or within such further time as Court may allow 11.08(1)(b)

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Persons Added/Substituted
o Must also enter an appearance 9.11

PROCESS
Contents
o Must contain name and address or contact details of person entering an
appearance 8.06
Form, File and Serve
o Should used Form 8A or 8B filed in the court registry and served on the
P
D can NOT Act Until Filed Appearance
o D shall not take any steps in proceedings unless D has filed an appearance
8.02
TIME FOR APPEARANCE
Rule
o If D does not enter an appearance in the time period, default judgment may
be entered 8.04
The time period must be mentioned in the OP served by P
o D can enter an appearance late as long as default judgment has not been
entered 8.07(1)
Time Periods
o Served in VIC
o

Not less than 10 days after service 8.04(a)


Served out of Victoria but in Australia

21 days after service 8.04(b)


Served in NZ, PNG

Not less than 28 days after service 8.04(c)


Served Anywhere Else

Not less than 42 days after service 8.04(d)

DEFENDANTS OPTIONS AFTER BEING SERVED


3 OPTIONS
D has 3 options after being served with an OP
o 1) Do Nothing
o

Default judgment may follow


2) Enter An Unconditional Appearance

Indicates that the action is to be defended


Must provide an address for future documents to be sent to
Waives any irregularities and submits to the jurisdiction
3) Enter A Conditional Appearance

Indicates the action is to be defended


Objects to the courts jurisdiction

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DO NOTHING
D DOES NOTHING
No Appearance
o If D does not enter an appearance, a default judgment may be entered
against him 21.02

UNCONDITIONAL APPEARANCE
ENTERS AN UNCONDITIONAL APPEARANCE
Form
o Must be set out in Form 8A 8.05(1)
o Prothonotary shall seal a sufficient number of copies for service 8.05(2)
Indicates that:
o D will defend the proceeding
o D Submits to the jurisdiction of the Court
Waives D Ability to Object to:
o Courts jurisdiction
o

I.e. Unable to claim FNC


Irregularities in OP

I.e. Unable to object to writ not being completed properly


Irregularities in Service

I.e. Unable to claim writ was served incorrectly


Stale writ will be made good by an unconditional appearance Sheldon
v Brown Bayleys Steel Works

CONDITIONAL APPEARANCE
WHAT IS IT?
D shows intention to defend but also objects to an irregularity
CONTEXT
Irregularity in service
o Service interstate not complying with SEPA
o Failed to serve personally when required
o Etc
D is a foreign head of state who claims immunity
Irregularity in Jurisdiction
o D claims FNC
Irregularity in OP
o Writ in an incorrect form

ENTERS A CONDITIONAL APPEARANCE


Form
o Must be set out in Form 8B 8.08(2)
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o Prothonotary shall seal a sufficient number of copies for service 8.05(2)


Effect
o Preserves Ds right to object to procedural irregularities or jurisdiction
Courts Decision
o Rule
o

Court will make an interim decision on Ds objections


No Irregularities

If court find no irregularities, conditional appearance is treated as an


unconditional appearance 8.08(3)
Irregularities

If the court finds an irregularity, it can:


Set aside writ or originating motion 8.09(a); OR
Make an order under r46.08 to obtain default judgment
where the person did not receive notice or attend
8.09(b); OR
Stay the proceeding 8.09(c)

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9) PLEADINGS
WHAT IS IT?
Formal written documents exchanged between parties setting out material
facts/legal claims that the parties will make at the hearing
Drafted broad to enable parties to preserve options for trial
o But do require a degree of accuracy
CONTEXT
Will be given a document and asked whether it complies with requirements
o First look at general requirements which apply to all pleadings
o Then look at requirements specific to each type of pleading

Documents that constitute pleadings include:


o Writ with special indorsement
o Statement of claim
o Defence
o Grandmas recipe for special brownies
o Reply
o Counterclaim
o Defence to counterclaim
o Subsequent pleadings: rejoinder, surrejoinder, rebutter, surrebutter

EXAM STRUCTURE
Intro Crap
Procedure
Formal Requirements + Content
Particulars
Documents
o SoC
o Defence
o Reply
Challenges and Objections
Amendments

INTRO CRAP
HEY PLEADINGS, HOW ARE YA?
Purpose of Pleadings
o Informs court of matter on which decision is sought
o Defines issues so parties know what is in contention
o Defines issues to limit the scope of discovery
o Parties know which evidence to bring at trial
o Avoid parties being taken by surprise (thus avoids additional surprise costs)
Detail
o Must be made with sufficient particularity to enable any eventual trial to be
conducted fairly to all parties Bongiorno J in Gunns

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PROCEDURE
TIMING + PROCEDURE
I Like Cheese
o SoC
o

P has 30 days from the date that D filed appearance to file SoC 14.02
Defence (+CC if used)

D has 30 days after P served SoC to file Defence 14.02


If D counterclaims, must put in same document as defence (Defence
and Counterclaim)
Defence to Counterclaim

P must file and serve Defence to Counterclaim within 30 days 14.07


Reply

Any Reply in response to Defence/Defence and Counterclaim must be


filed and served by P within 30 days 14.05
Closing Pleadings

After 30 days of service of the last pleading, pleadings are closed


14.08

FORMAL REQUIREMENTS AND CONTENT


FORMALITY REQUIREMENTS
Formality
o Description
o

Must include the description of the pleading 13.01(1)(a)


Date

Must include the date on which it is served 13.01(1)(b)


Format
o Paragraphs

Must be divided into consecutively numbered paragraphs 13.01(2)


Each allegation must be in a separate paragraph 13.01(2)
Signed

Each pleading must be signed by barrister or solicitor who drafted it


13.01(3)
The signature is not an oath or affirmation
Dates, Amounts, Figures

All dates, amounts and figures shall be in numbers, not words 27.04

CONTENT REQUIREMENTS
Content
o Material Facts

Rule

Must contain a summary statement of all material facts on which


the party relies 13.02(1)(a)
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Material Facts
This includes ALL facts necessary to prove the cause of
action/defence
Does NOT require evidence by which the facts are to be proved

Document or Conversation
Must plead the effect of a doc/conv, but don't need precise
words if they are not material 13.03
If there is controversy in relation to the construction of a
document, the material words alleged should be set out in the
pleadings in full
Facts Presumed True
Do NOT need to plead a fact if it is presumed by law to be true
13.04
Burden on Other Party
Do NOT need to plead a fact if the burden to prove it is on the
other party 13.04
If the other party denies this fact, then you do need to plead it
13.04
Specify Provision of Act

Where the claim/defence arises under an Act, the specific provision


relied on must be mentioned 13.02(1)(b)
Relief or Remedy Claimed

Must specifically state any relief or remedy claimed 13.02(1)(c)

PARTICULARS
FORMAILITIES IN PARTICULARS
Necessary Particulars
o Rule
Every pleading shall contain the necessary particulars of any
fact/matter pleaded 13.10(1)
Which Particulars are Necessary?

Must

be included if they are necessary to:


enable the opposite party to plead; 13.10(2)(a)
define the questions for trial; or 13.10(2)(b)
to avoid surprise at trial l13.10(2)(c)

Allegations
o Rule
Pleadings must contain the particulars of any alleged:
Misrepresentation, fraud, breach of trust, wilful default or undue
influence; 13.10(3)(a)
OR
Disorder or disability of the mind, malice, fraudulent intention or
other condition of the mind, including knowledge or notice
13.10(3)(b)
Party Claiming Damages for Bodily Injury

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Rule

Pleadings of party claiming damages for bodily injury must state:


Dates & amounts, of earnings lost in consequence of injury
complained of 13.10(4)(a)
Particulars of any loss of earning capacity resulting from the
injury13.10(4)(b)
The date of the partys birth 13.10(4)(c)
Employer details for 12 months before injury 13.10(4)(d)
Proceeding for Libel
o Rule

The indorsement of claim on writ or the statement of claim must


identify the publication in respect of which the proceeding is
commenced 13.10(5)

COURT ORDERED PARTICULARS


Rule
o Court may order a party to serve particulars, or further/better
particulars of any fact/matter stated in pleading or in affidavit filed if
necessary/desirable to enable other party to plead or for some other special
reason 13.11
In Practice
o Party should required F/B particulars from other party before asking the court

SPECIFIC TYPES OF PLEADINGS

STATEMENT OF CLAIM
IS A STATEMENT OF CLAIM REQUIRED
TP Notices
o Rule

Writ
o

TP notices must be indorsed with a SOC 11.01


TP notices must comply with pleading requirements 11.02

Special Indorsement (SoC is included in Writ)


Where indorsement of claim on writ constitutes a SoC in accordance
with r5.04 (that is, where the writ has a special indorsement), no SoC
shall be served 14.01
General Indorsement (No SoC in Writ)

Where indorsement of claim on writ does NOT constitute a SoC in


accordance with r5.04 (that is, where the writ has a general
indorsement), if D files an appearance, P shall serve a SoC on D within
30 days of Ds appearance, unless otherwise ordered 14.02

SOC CONTENT + FORMALITY REQUIREMENTS


Cause of Action
o Rule

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SoC must disclose a cause of action


Format (There are 3 parts to a SoC)
o 1) Introductory Allegations

What is it?
Any necessary facts relating to the parties and their relationship
to each other
Examples (only use each one where relevant)
Establish capacity if relevant
o If using litigation guardian then must be pleaded
Establish connection of party to subject matter, if not obvious
Show a connection between the parties
If suing in representative proceedings then the class must be
identified
Etc
2) Substantive Allegations

What is it?
All material facts that are needed to prove each cause of action
If there are multiple CoAs, then you need to provide material
facts for each CoA
Examples
Breach of K: 1. Agreement was verbal 2. Breach when X did not
pay 3. Breach causes damages as Y couldnt pay bills
Negligence: 1. D owed duty as partners 2. Duty breached
because etc
Battery: 1. Direct physical contact when X hit Y with ball etc
3) Prayer for Relief

What is it?
Identify what relief/remedy is sought from the court

Format
Introduced in capitals AND THE PLAINTIFF CLAIMS:
Not numbers instead it is listed by letter

Example
AND THE PLAINTIFF CLAIMS:
o A __________
o B __________
o C __________

Particulars
o Particulars are also required see above

DEFENCE
WHAT IS IT?
Defence The pleading subsequent to a SOC
o Responds to allegations made by P in the SOC
o Brings up any CC or Set-offs
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CONTENT
Rule
o

Party shall plead any fact/matter which: 13.07(1)

the party alleges makes a claim/defence of the opposite party not


maintainable
if not pleaded specifically, might take the opposite party by surprise
raises questions of fact not arising out of the preceding pleading

ADMISSIONS AND DENIALS


Must Deny or Else Admitted
o Rule
D must specifically deny each allegation made in the SOC that they
wish to contest
Failure to respond is taken to be an admission 13.12(1)
Exceptions

Damages are assumed to be rejected


Need not respond to particulars
3 Ways D can Respond
o 3 ways D can respond to each specific allegation in the SOC: 13.12(3)
Admit: fact is taken as proven and is not disputed at trial
Qualified pleading: Justify why (Yes I did it, but I was pushed)
Objection on point of law: Point of law (Yes I did it, but limitation
period expired)
Do not admit: do not admit, and ask P to prove it
Deny: do not admit and deny it
Different Facts to the SoC
o Prove Different Facts

If party X intends to prove different facts to those pleaded by the


opposing party, then party X shall plead the material facts they intend
to prove 13.12(3)
Inconsistent Allegations of Fact

A party may make inconsistent allegations of fact if the pleading makes


it clear that the allegations are pleaded in the alternative 13.09
Denial by Joinder
o Define Joinder of Issue

Where D disputes a claim by P, the parties agree that the issue is in


dispute
Joinder of issue acts as denial against any allegation unless it is
admitted 13.13(4)
No Reply Need be Served

No reply or subsequent pleading merely joining issue shall be served


13.13(1)
P does NOT have to respond with a reply unless he is raising a new
allegation or fact
JoI Implied at Close of Pleadings

At the close of pleadings a joinder of issue on the pleading last served


shall be implied 13.13(2)
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No JoI made on SoC or CC

No joinder of issue, express or implied, shall be made on a SOC or


counterclaim 13.13(3)
Because it's the first one no defence to argue with it

SET-OFF & COUNTERCLAIM


WHAT ARE THEY?
Intro
o There are 2 ways for D to bring a CoA in his defence document: Setoff and CC
SET-OFF (SEE JOINDER NOTES)
Defence Document Formalities
o Title is Defence
o A paragraph within must note the set-off (no sub-headings required)
Not a COA
o Set-off is a defence to Ps claim 13.14

Not a separate COA therefore there is no separate judgment


Need not arise from the same facts but must relate to money
Where Set-off is Greater than Ps Claim
o D should also plead the set-off as a counterclaim and ask for judge on the
balance 10.09

COUNTERCLAIM (SEE JOINDER NOTES)


Same as SOC
o Order 13 applies to a counterclaim as if it were a statement of claim
13.15(a); and a defence to counterclaim as if it were a defence 13.15(b)

Defence Document Formalities


o Title is Defence and Counterclaim
o Subheadings must be included:
1. Defence
2. Counterclaim
An Action in Its Own Right
o Generally
o

Same rule as a SOC as it is a new action


Procedure

Same as SOC
Can only be commenced by writ 10.01
D can CC at any time in the proceeding before judgment 10.02
Prayer for Relief: AND THE DEFENDANT COUNTERCLAIMS: 13.15
Life of its Own

Continues if Ps action ends 10.08


Court can separate CC into its own trial if the court believes it will delay
proceedings or cause prejudice 10.06
Joinder of Others
o In addition to naming P in the CC, D can joinder others in the CC

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TEST: same transaction or series + common question of law/fact

See joinder for more


Limitations
o CC is treated as having commenced on the date of the original proceeding
S30 Limitations of Actions Act

REPLY
REPLY

Intro
o What is it?

If the defence raises a new allegation of fact that requires a response


more than a mere denial, P may respond in the form of a reply
When will it be used?

Reply is only necessary if: 13.09


There is a new matter that will make a defence pleaded by the
Defendant not maintainable; or
There is a matter arising from the defence that would take the
Defendant by surprise if the Plaintiff argued it without specifically
pleading it; or
Plaintiff wants to raise questions of fact not arising from the
defence
Where D files a CC

Reply document should also include a defence to the CC


Defence to CC follows same rules as a defence to a SoC

Scope
o Can only meet the defence
o Can NOT raise new COA or allege any matter which is inconsistent with the
SoC
If No Reply is Filed and Served
o All the allegations in the defence are deemed denied 13.13

PLEADINGS AFTER THE REPLY


POSSIBLE PLEADINGS AFTER THE REPLY
Order of the Court Required
o Can only be served by order of the court 14.06
Include:
o Rejoinder (by D)
o Surrejoinder (by P)
o Rebutter (by D)
o Surrebutter (by P)

CHALLENGES AND OBJECTIONS

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INTRODUCTION
In Practice
o Unlikely to summarily dismiss if less drastic measures are available
o Usually leave to amend will be granted and an order for costs thrown away
subject to AON
Gunns Quote
o They must be given an opportunity of bringing those allegations before the
Court in an intelligible and appropriate form, properly and economically
pleaded. Many of them amount to criminal offences, some of them serious,
and it would be an injustice to the plaintiffs to enter judgment against them
and thus shut them out from litigating those allegations. The right to due
process is mutual. Gunns

PROCEEDING
Stay / Summary Judgment
o Proceeding generally/any claim in a proceeding
Court may stay a proceeding or give summary judgment where a
proceeding generally, or any claim in a proceeding: 23.01(1)
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious;
(c) is an abuse of process; or
(d) relates to batman
Defence

The Court may give judgment where the defence: 23.01(2)


(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious

INDORSEMENT
Indorsement/Pleading
o The Court may order that the whole or part of the indorsement or pleading be
struck out or amended if the indorsement or pleading: 23.02
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding;
or
(d) is otherwise an abuse of the process of the Court

AMENDMENT
AMENDMENT
Rule
o This rule applies to pleadings and originating process 36.01(2)
o Court may order amendment/grant leave to amend at any stage of pleadings
for the purpose of: 36.01
(a) Determining the real question in controversy between the parties
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(b) Correcting any defect or error in the proceeding


(c) Avoiding multiplicity of proceedings
First Amendment Without Leave
o A party may amend pleadings once before the close of pleadings (i.e.
without leave); and any time with the Courts leave or consent of all
parties 36.03
Amendment
o COA Arising after Commencement of Proceeding

Can add or substitute a cause of action which arose after the


commencement of a proceeding 36.01(3)
Mistake in Name

A mistake in name of a party can be corrected, even if effect of


correction is to substitute another person as a party 36.01(4)
Limitation Period

Can amend even if the relevant limitation period has expired 36.01(6)
Distinguish from Previous Pleading

Amendment must be distinguished from the previous pleading r 36.05

ETHICAL OBLIGATIONS (ONLY IF RELEVANT ON EXAM)


ETHICAL OBLIGATIONS FROM KEARAS NOTES
Two sets of duties for the lawyer to consider:

Duty to the Court


Obligations under the Civil Procedure Act 2010 (Vic)

Duty to the Court

An Australian Lawyer admitted in Victoria is an officer of the Supreme Court of Victoria


(LPA 2.3.9(1)).
Lawyers have a duty to the Court and to the administration of justice, which override
the duty to the client (subject to client legal privilege).

This duty includes:

Duty of candour in disclosing the law and the facts : Practitioners must disclose
to the court the law applicable to a case and must not knowingly mislead the
court about the facts of a case, or any other matter.
Duty not to abuse the court process : Practitioners must ensure that court
processes are not abused or used for ulterior or improper purposes; that is, for
purposes other than the vindication of a right of a client.
o In White Industries (Qld) Pty Ltd v Flower & Hart (a firm), Goldberg J held
that solicitors at Flower & Hart breached their duty to the court and the
administration of justice when they instituted a proceeding on behalf of
its client alleging fraud when there was no factual basis for that allegation
and in respect of a cause of action which it believed could not be won.
98 | P a g e

They had done so to buy time for their client and gain a temporary
bargaining stance.
Duty not to corrupt the administration of justice : Practitioners must not engage
in, or assist, conduct that is prejudicial to the administration of justice.
Duty to conduct cases efficiently and expeditiously : Practitioners must exercise
independent judgment in the conduct and management of cases and cooperate
with the court and each other to ensure the speedy and efficient administration
of justice.
Duty to comply with personal undertakings : Practitioners must strictly observe
personal undertakings given to the court in a professional capacity.

Civil Procedure Act


s 16 Paramount Duty:
Each person to whom the overarching obligations apply has a paramount duty to the court to
further the administration of justice in relation to any civil proceeding in which that person is
involved, including, but not limited to-

(a) any interlocutory application or interlocutory proceeding;


(b)any appeal from an order or a judgment in a civil proceeding;
(c) any appropriate dispute resolution undertaken in relation to a civil proceeding.

s 18 Overarching obligation-requirement of proper basis


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

(a) is frivolous; or
(b)is vexatious; or
(c) is an abuse of process; or
(d)does not, on the factual and legal material available to the person at the time of
making the claim or responding to the claim, as the case requires, have a proper
basis.

s.42 Proper basis certification


(1) On the filing of a party's first substantive document in a civil proceeding and any
document that contains significant amendments to the first substantive document, a legal
practitioner acting for or on behalf of a party to the proceeding must certify that, on the
factual and legal material available -

(a) each allegation of fact in the document has a proper basis;


(b)each denial in the document has a proper basis;
(c) there is a proper basis for each non-admission in the document.
(3) For the purposes of this section, a determination by a legal practitioner

(a) As to whether any allegation or denial of fact has a proper basis, on the factual
and legal material available, must be based on a reasonable belief as to the
truth or untruth of the allegation or denial; or

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(b)as to the proper basis of any non-admission is that the legal practitioner does
not know, and therefore cannot say, whether a fact alleged or denial is true or
untrue.

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10)

METHODS OF GATHERING EVIDENCE

WHAT IS IT?
The various methods used to gather evidence before a trial
Methods of Gathering Evidence Include:
o Discovery
o Non-party and preliminary discovery (identify a D, prospective D, non-party)
o Interrogatories (questions from one party to another answered under oath)
o Notice to admit (parties agree to admit certain facts)
o Subpoenas (process to compel a person to attend trial as witness or to
produce documents)
CONTEXT
Question will ask about the various ways P or D can get a specific piece of
information from either the other party or a third party

DISCOVERY
EXAM STRUCTURE
Intro Crap
Notice
Affidavit of Documents
o Scope
o Possession
o Other Types of Discovery (Restricted, Particular, Further, Supplementary)
o Privilege
Inspection of Documents
o Permitted Use of Discovered Docs
Default in Discovery
Document Destruction

INTRO CRAP
INTRO CRAP
Leading Line
o The process by which all documents relevant to matters pleaded are made
available to the other side for inspection
When?
o Writ
o

Only applies to proceedings commended by writ 29.01


What is a Document

s 38 Interpretation of Legislation Act 1984 (Vic)


Document includes, in addition to a document in writing:
(a) any book, map, plan, graph or drawing;
(b) any photograph;
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(c) any label, marking or other writing which identifies .;


(d) any disc, tape, sound track or other device in which sounds
;
(e) any film (including microfilm), negative, tape or other device
in which one or more visual images are embodied ; and
(f) anything whatsoever on which is marked any words, figures,
letters or symbols which are capable of carrying a definite
meaning to persons conversant with them

NOTICE FOR DISCOVERY


NOTICE FOR DISCOVERY
What is it?
o Notice given to other party requiring them to make discovery of all
documents which are (or have previously been) in that partys possession,
that relate to any question raised by the pleadings 29.02(1)
Who?
o Either party can give notice 29.02(1)
Timing
o After the Close of Pleadings
o

Notice can be served at any time 29.02(1)


Before the Close of Pleadings

Leave of the court is required to serve notice 29.07


Notice served before pleadings close are taken to be served on the day
after pleadings close 29.02(3)

Form
o Notice for discovery shall be in form 29A 29.02(2)

AFFIDAVIT OF DOCUMENTS MAKING DISCOVERY


WHAT IS IT?
Please tell me, Im stupid and ill fail civil if you don't?
o Fine Ill tell you for $20

TIMING
Rule
o

Ok, here it is $20


Thanks. If a party is served notice for discovery, AOD is their
response which includes the docs to be discovered

Party served with notice must make discovery within 42 days of service
29.03(a) or the day on which service is taken to have occurred 29.03(b)

FORM AND CONTENT OF AOD


Form
o AOD shall be in form 29B 29.04

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Content of AOD
o AOD must:

Identify Docs
Rule
o Identify the docs which are/have been in the
possession of the party making the AOD 29.04(a)
Privileged Docs
o Privileged docs must be identified, but their content
does not have to be disclosed
Order and Describe Docs
Rule
o Enumerate (itemise) documents in a convenient
order and describe each document 29.04 (b)
Documents in a Group
o Group docs of the same nature can be described as a
group
Detail
o Must be sufficient to enable the doc/group to be identified
Docs No Longer in Possession
Define Possession
o Possession means possession, custody or power 29.01(2)
Possession: Physical/corporal holding of document
resulting from right to possession (agent/bailee)
Custody: Mere actual physical/corporal holding of a
document, regardless of right to possession
(servant/employee)
Power: Enforceable right to inspect or obtain
possession/control of document from person who
ordinarily has it
Rule: Distinguish
o AOD must distinguish docs that remain in possession
from those no longer in their possession 29.04(c)
Docs No Longer in Possession
o AOD must:

State when they parted with document 29.04(c)(i)


State what they believe has become of the
document 29.04(c)(ii)

Privilege
If AOD claims any docs are privileged, AOD must state
sufficiently the grounds for privilege 29.04(d)

SCOPE OF DISCOVERY
What do you mean by Scope?
o 1. Scoping out some hotties
o 2. Which documents are required to be discovered and therefore included in
the AOD
Common Law (No Longer Applies)
o Must include Docs that would: Compagnie
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Be evidence upon any issue in the case


Advance the case of the party-seeking discovery
Damage the case of the party-giving discovery
Possibly lead to a train of inquiry which might advance or damage the
case of the party giving discovery

Statute
o Summary

Codifies the CL as above, except that the 4th point (train of inquiry) is
NOT included

Rule

Docs required to be discovered are any of docs in r29.01.01 of which


the party giving disc is aware of at the time discovery is given
29.01.01
Aware of

Rule

Party giving disc is expected to conduct a reasonable search to


become aware of relevant documents
Reasonable Search
In making a reasonable search a party may take into account
29.01.01(5)
o (a) The nature and complexity of the proceeding;
o (b) The number of documents involved;
o (c) The ease and cost of retrieving a document;
o (d) The significance of any document to be found; and
o (e) Any other relevant matter
Documents Required to be Discovered by the Party Giving Disc 29.01.01

(a) Documents on which the party relies;


(b) Documents that adversely affect the party's own case;
(c) Documents that adversely affect another party's case; AND
(d) Documents that support another party's case

OTHER TYPES OF DISCOVERY


Restricted Discovery
o Timing
o

Court can order at any time 29.05


Context?

Policy
Used to avoid abuse of processes

Confidentiality?
Confidentiality alone is usually not enough to deny inspection,
because of the implied undertaking that the information is only
used for the purpose of the action Mobil
So When?
Commercial confidence
Public interest
National security
Party is merely fishing for information

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Party has untoward motives

Rule

Court can order that: 29.05


Discovery by a party is NOT required
OR
Discovery is limited to:
o Certain documents;
o Certain classes of documents; OR
o Certain questions in the proceeding
Particular Discovery
o Timing

Court can order at any stage of a proceeding 29.08(2)


Context

Where the court believes a party may have (or previously had) a
relevant document
Party served with AOD believes discovery is incomplete, party will
request further AND particular

Rule

If court has grounds for belief that a document (or class of docs) may
be (or previously had been) in the possession of a party, court may
order that party sign an affidavit stating:
Whether such docs/class is or was ever in the partys possession
29.08(2)(a)
AND
If no longer in possession, when the party parted with it, and
what the party believes has become of it 29.08(2)(b)
Define: Court has Grounds for Belief

If it appears to the court at any time from evidence, nature or


circumstances of the case

Note:

AOD is a sworn document and therefore carries some weight, thus


needs something significant to opine that the party has not
completed it in full
Further Discovery
o Context

Party served with AOD believes discovery is incomplete, party will


request further AND particular

Rule

Where party fails to make discovery or fails to make sufficient


arrangements for inspection/copying, court may order the party to do
such acts as the case required 29.11
Fails to make discovery/sufficient arrangements includes:

Fails to make discovery in accordance with Rules 29.03 and 29.04


29.11(a)
Fails to serve notice appointing time for inspection as required by 29.09
or 29.10 29.11(b)
Objects to produce any document for inspection 29.11(c)
Offers unreasonable inspection time or place 29.11(d)
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Objects to allow document to be photocopied or to supply photocopy of


document 29.11(e)
Supplementary Discovery
o Rule

Party who made AOD is under continuing obligation to make disc of


docs for any docs obtained by that party after making the AOD 29.15
Context

New document created


Something was let out originally but is now relevant
Etc

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PRIVILEGE
Relevance?
o A privileged document has to be identified in the AOD, but does NOT have to
be made available for inspection by the other party
Grounds of Privilege
o Legal professional privilege
o Privilege against self incrimination
o Privilege against exposure to penalties & forfeiture
o Public interest
o Without prejudice communications
o Priest and penitent privilege
o Marital privilege
Test for Legal Professional Privilege
o Rule

Document is privileged and therefore protected if:


It is communication which is made predominately for the
purpose of obtaining legal advice or use of a lawyer in existing or
anticipated litigation Esso
Anticipated Litigation

Must be a real prospect of litigation, and not a mere possibility


Mitsubishi
Challenging Privilege

In an application to Court challenging a claim of privilege, Court may


inspect documents to decide validity of the claim 29.13

INSPECTION OF DOCUMENTS
INSPECTION OF DOCS
What is it?
o After AOD is supplied, party is required to produce documents referred to for
inspection 29.09(1)
Form
o Form 29C: Notice to Produce 29.09(3)
Timing
o Party has 7 days from receiving notice to produce to appoint a time
within 7 days and a place where the documents may be inspected
29.09(2)
Inspection
o Party to whom documents are produced, may take copies of documents
29.09(4)
Taking a copy includes photocopying document 29.09(5)
Party producing document may allow other party to photocopy at
place agreed upon 29.09(5)(a) or supply other party with a photocopy
of document 29.09(5)(b)
Permitted Use of Discovered Documents
o Rule

Generally

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Implied undertaking not to use discovered document for any


purpose other than the litigation in which it is disclosed
Esso (Confirmed in Hearne)
Exception
Court can allow use in special circumstances very high
standard though
Extension of the Rule

This rule extends to pleadings, answers to interrogatories,


documentary witness statements and material provided under nonparty discovery Ambridge
If Documents are Misused

Solicitors may be liable for contempt of court

DEFAULT IN DISCOVERY
DEFAULT
First Failure to Discover
o If party X fails to make discovery in period set, other party may serve
on party X notice Form 29D: Notice of default in discovery 29.12.1(2)
Failure to Discover After being Served Notice of Default
o If party fails to make discovery in 7 days after notice in default being served:
Proceedings may be dismissed 29.12.1(3)(a)
OR
Ds defence may be struck out 29.12.1(3)(b)
o Court will only intervene if behaviour has amounted to an attempt to pervert
the course of justice Eames J in McCabe
Court can Later Vary
o Court may set aside or vary an order made under 29.12.1(3) 29.12.1(6)

DOCUMENT DESTRUCTION
INTRODUCTION
2 Acts
o Look at both of the acts
CRIMES ACT S254(1)
Rule
o Will be guilty of an indictable offence and liable to level 6 imprisonment (5
years) or fine or both, if:
they destroy or conceal or renders it illegible, undecipherable or
incapable of identification; or
if they expressly, tacitly or impliedly authorises or permits another
person to do so
o Requires mens rea
Authority

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Crimes Act S254(1) (Inserted by Crimes (Document Destruction) Act


2006)

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT


Rule
o If a document is unavailable for any reason (deliberate or not) judges can
now:
Strike out claims 89B(2)(d)
Reverse the onus of proof 89B(2)(e)
Assume that certain facts are true 89B(2)(a)
Any other thing the Court thinks is appropriate
o Have to balance effect on party who could have used evidence 89C(b) &
reason for its unavailability 89C(a)
o No need to prove mens rea

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NON-PARTY AND PRELIMINARY DISCOVERY


WHAT IS IT?
Disc to ID a D
Disc to establish whether to sue a prospective D
Disc from a non-party

DISCOVERY TO IDENTIFY A DEFENDANT


IDENTIFY A DEFENDANT
Context
o P knows what COA he wants to sue for, but doesnt know the identity of the D
When Can it Be Used?
o Where an applicant has made reasonable enquiries and is unable to identify a
D to bring proceedings against 32.02(1)(a)
AND
o It appears that a person has relevant documents or knowledge to assist such
identification 32.02(1)(b)
Rule
o If above is satisfied:

The Court may order applicant to: 32.02(2)


(a) make discovery of documents
(b) attend court; OR
(c) attend an oral examination

DISCOVERY OF A PROSPECTIVE DEFENDANT


PROSPECTIVE DEFENDANT
Context
o P uses this to establish whether he has a sufficiently strong claim to issue
proceedings against a potential D
o Often used in medical negligence cases to view medical records
Rule
o Court may order discovery of document

reasonable cause to believe that there may be a right to obtain relief


from a D 32.05(a)
after making reasonable inquiries, sufficient information not available
to P to decide whether to commence proceedings or not; 32.05(b) AND
there is reasonable cause to believe that D has possession of
documents 32.05(c)

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DISCOVERY FROM A NON-PARTY


DISCOVERY FROM A NON-PARTY
Rule
o Court may order a non-party to make discovery of documents if are likely
to be in possession of documents relevant to a question in the
proceedings 32.07
Proof Required
o Party seeking discover from a non-party must show by affidavit in support
that it is likely that the non-party has in their possession documents which
relate to a question in the proceeding
Procedure
o NP is required to serve an AOD and give inspection the usual way
Practice
o Despite wide scope of rule, courts tend to restrict non-party discovery to
cases outside the ordinary, where such an intrusion into the affairs of a
stranger to the litigation is necessary
o NB: P could also ask for a Subpoena to get them to bring the document to
court

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INTERROGATORIES, NOTICES TO ADMIT, SUBPOENAS


INTERROGATORIES
WHAT IS IT?
Series of questions delivered by one party to another party, which the others party
is required to answer under oath
CONTEXT
Question will give a set of facts and a list of Inters, and ask which of those Inters
must be answered (look at scope)
SERVING INTERROGATORIES
Formalities
o Rule
Any party may serve interrogatories on another party, relating to
any question between them in the proceeding 30.02(1)
Must be an issue in dispute
Timing

When Pleadings are Closed


Inters may be served without leave of court 30.02(2)

When Pleadings are NOT Closed


Court may order any party serve interrogatories on any
other party 30.02(3)
Further Inters

Court may grant leave to interrogating party to serve further


interrogatories 30.02(4)

Scope
o Question Between Parties in Proceeding

Rule

MUST relate to a question between the parties in the proceeding

Witness Credibility
NOT enough to merely relate to witness credibility

Succeed NOT Merely Assist


NOT enough that the information sought may indirectly assist a
case, must relate to matters that must be proved in order to
succeed in the claim or defence
Names of Witnesses

Can NOT be used to ascertain names of witnesses, unless those names


are themselves material facts
Evidence

Can NOT be used to ascertain evidence the other party intends to call

ANSWERING INTERROGATORIES
Timing

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Party interrogated has 42 days to file and serve their response by affidavit
30.04(b)
Sources of Answers for an Interrogated Party
o Rule
o

Answer from own knowledge of the fact or matter being inquired


about 30.05(1)(a)
If Interrogated Party does NOT have knowledge

Rule

Party shall answer from any belief the party has as to the fact or
matter inquired after, irrespective of the source of the information
on which the belief is formed 30.05(1)(c)
NO Belief
Shall be taken not to have a belief as to the fact or matter where:
30.05(1)(b)
o The party has no information relating to the fact or matter on
which to form a belief
OR
o Where, if the party has such information, the party has no
belief (based on reasonable cause) that the information is
true
Exception: Privilege
No need to answer where belief is formed on the basis of
privileged information 30.05(1)(d)
Reasonable Enquiries to Form Belief
Where party has no personal knowledge shall make reasonable
inquiries to form belief 30.05(1)(e)

OBJECTIONS TO ANSWER
Rule
o Party shall answer each interrogatory except to the extent it may be objected to
on any of following grounds:
does NOT relate to any question between the parties 30.07(1)(a)
is unclear or vague or is too wide 30.07(1)(b)
is oppressive (too hard to answer) 30.07(1)(c)
requires the party to express an opinion which the party is not
qualified to give 30.07(1)(d)
privilege 30.07(1)(e)
DEFAULT
Fail to Answer Inters
o Where party fails to answer interrogatories, court may order that they be
provided 30.09
Fail to Comply with Court Order
o If do not comply with court order, Form30A Default Notice can be served under
30.09.1(2)
Fail to Comply with Default Notice
o If within 7 days of this notice being served, interrogatories are not answered
court may:
hAVE THE PROCEEDING DISMISSED, IF PLAINTIFF IS IN
DEFAULT 30.09.1(3)(a)
113 | P a g e

hAVE THE DEFENCE STRUCK OUT, IF DEFENDANT IS IN


DEFAULT 30.09.1(3)(b)

Notices to admit
WHAT IS IT?
Party X sends NTA to Party Y specifying facts to be admitted Party Y must dispute
any facts it does not admit, or they will be taken to be admitted
NOTICE FOR ADMISSION OF FACTS
Rule
o A party may serve on another party a notice for admission of facts (NFAOF)
NFAOF
o Doc stating that unless other party disputes the facts specified in the notice,
that party shall, for the purpose of the proceeding only, be taken to admit
those facts 35.03(1)
o A NOTICE FOR ADMISSION SHALL BE IN FORM 35A 35.03(4)
Timing
o NFAOF will specify a time period in which the other party must respond the
minimum time period is 14 days 35.03(1)
Responding to an NFAOF
o Disputing
If disputing the fact, disputing party must serve a NOTICE OF
DISPUTE
Notice to dispute admission IN FORM 35B 35.03(4)
Admitting a Fact / Failing to Respond

Rule

If party does NOT dispute WITHIN THE TIME PERIOD,


PARTY SHALL BE TAKEN TO ADMIT THAT FACT 35.03(2)
Withdrawal of Implied Admission
With leave of the court, a PARTY MAY WITHDRAW AN
ADMISSION TAKEN TO BE HAVE BEEN IMPLIED BY
FAILURE TO DISPUTE 35.03(3)

NOTICE FOR ADMISSION OF DOCUMENT


It's the Same, bro
o Exactly the same as above with all sections 35.05 instead of 35.03

COST CONSEQUENCES
Where Disputed Fact is Proved 35.06
o Where a party serves a notice under Rule 35.03(2) or 35.05(2) disputing
a fact or the authenticity of a document and afterwards that fact or
document is proved in the proceeding, liability for costs shall be determined
in accordance with Rule 63.18

114 | P a g e

What Does that Mean?


o If a party disputes a fact which is proved later, that disputing party will have
to pay the costs of proving the fact
Compare NTA with Inters
o If you use NTA instead of Inters, and the fact is disputed but then proven,
then you get the costs of proving back
o You don't get costs with Inters

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Subpoenas
WHAT IS IT?
Process used to compel a person to attend trial as a witness, or to produce
documents to the court
RULE AND FORMALITIES
Initial Stuff
o How to Spell Subpoena
o

Like this: Subpoena


MUST be Commenced by Writ

Rule
o

In any proceeding, the Court, by subpoena, may order the addressee to:

Can ONLY BE USED IN CASES WHICH HAVE BEEN


COMMENCED BY A WRIT 42.01

Attend the Court to give evidence 42.02(1)(a)


Produce any document (or copy of it) or thing for evidence 42.02(1)(b)
Both 42.02(1)(c)

Form
o Must be in accordance with FORM 42A 42.03(1)
o Shall not be addressed to more than one person 42.03(2)
o Subpoena to produce SHALL IDENTIFY THE DOCUMENT OR THING TO BE
PRODUCED 42.03(4)(a) and specify time, date and place for production
42.03(4)(b)
o Subpoena to give evidence SHALL SPECIFY TIME, DATE AND PLACE FOR
ATTENDANCE 42.03(5)
Date specified shall be date of trial or any other date as ordered by the
Court 42.03(6)
Subpoena to Produce Documents
o Dont have to attend trial with subpoenaed documents if they are produced to
court registry 3 days before date specified in subpoena 42.06

SERVICE OF SUBPOENA
Service
o Personally
o

Must be SERVED PERSONALLY ON THE ADDRESSEE 42.05(1)


Timing

Must be served 5 days prior to when attendance is required 42.05(1)


Conduct Money

Rule

Conduct money must be given TO ADDRESSEE 42.06(1)

What is it?
Money to cover reasonable expenses for attending
NOT PAYMENT FOR TESTIMONY

Failure to Pay Conduct Money

116 | P a g e

An addressee need not comply with requirements of subpoena to


give evidence unlesS CONDUCT MONEY HAS BEEN
HANDED/TENDERED TO ADDRESS A REASONABLE TIME
BEFORE DAY ON WHICH ATTENDANCE IS REQUIRED
42.06(1)

SET ASIDE SUBPOENA


Rule
o Can apply to set aside subpoena if it is: 42.02

AN ABUSE OF PROCESS;
OPPRESSIVE; OR
NOT FOR LEGITIMATE FORENSIC PURPOSE
Not for Legit Forensic Purpose
o It is not legitimate to use a subpoena to obtain what would in effect be
discovery of documents from a non-party who is not liable to make discovery
Small

FAILING TO COMPLY WITH A SUBPOENA


Contempt
o Failure to comply without lawful excuse is contempt of court 42.12
Damages
o May also be liable for damages to the party who issued the subpoena, if the
person subpoenaed is a material witness

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11) Interlocutory Procedure


WHAT IS IT?
Interlocutory orders apply before judgment to preserve the status quo
pending final determination
o Do NOT finally determine the rights of the parties
Prevent final relief from being undermined before judgment
Include:
o Injunctions

Interim (in the mean time)


Anton Piller (Search)
Mareva (Freeze)
Security for Costs

CONTEXT
Question will ask what options one party has before judgment
EXAM STRUCTURE
Intro Crap
Affidavit
Interlocutory

INTRO CRAP
GENERAL INFORMATION
Introduction
o Do not determine the rights of parties, or anything re: the cause of action
they deal with subsidiary matters
o Generally preserve the status quo pending final determination
o Prevent final relief from being undermined by steps taken prior to trial
Hearing
o Held in a practice court
PROCESS FOR STARTING INTERLOCUTORY PROCEDURES
Summons
o Rule

Party making an IP must file a summons 46.01(a)


Form

Must be in form 46A 46.04(1)


File to Who?

Application made to Judge


File with the Prothonotary 46.04(2)(a)

Application made to Associate Judge


File with the Associate 46.04(2)(b)

Service
o Rule
118 | P a g e

The summons requires ordinary service (unless before appearance)


which must be sealed and supported by an affidavit of support
45.05(1)
Timing

Service must be completed within a reasonable time before the day for
hearing (no later than 2pm the day before)
Court Discretion
o Court can set aside or vary an order where:

Application was made but the person did NOT attend the hearing of the
application 46.08(1)
OR
Application was NOT made on notice to that person 46.08(2)

AFFIDAVIT
Introduction
o All IPs need an affidavit which is essentially the evidence for the IP
Formalities
o First Person
o

Affidavit must be made in the first person 43.01(1)


Address

Must state address 43.01(2)


If address is unknown, may state place of business & position held
instead 43.01(3)
Occupation

Must state occupation 43.01(2)


If they don't have one, can state description of the deponent instead
43.01(2)
Paragraphs

Should be divided into paragraphs and numbered consecutively,


and distinctly 43.01(4)
Signed

Shall be signed by the deponent (person who brings the affidavit)


43.01(5)
Each page should be signed by the person before whom it is
sworn 43.01(6)
That person must write type or stamp signature, and write his or
her name and address and statement of capacity 43.01(7)

Content
o Facts and Beliefs
Affidavit shall be confined to facts which the deponent is able to state
in his own knowledge 43.03(1)
May contain a statement of fact based on information & belief if
the sources/grounds of the belief are clearly set out 43.03(2)
If grounds not set out facts based on beliefs are inadmissible
Documents Referred to in it

Document referred to in an affidavit shall not be annexed but may


be referred to as an exhibit 43.06(1)
119 | P a g e

Exhibit can be identified by separate certificate annexed bearing same


heading as affidavit 43.06(2)
Certificate shall be in Form 43A 43.06(3)

Filing
o Must be Filed
Affidavit CAN BE USED IF IT HASN'T BEEN: 43.09(1)
filed 43.09(1)(a)
OR
served or filed in compliance with an order re: its service or filing
43.09(1)(b)
Filed to Who

May be filed with Prothonotary or proper officer in court 43. 09(2)

Injunctions
WHAT IS IT?
Equitable orders made with the purpose of regulating the position
between the parties in an action pending trial
Types:
o Interlocutory (interim)
o Final (final)
o Ex Parte (with only 1 party present)
o Mandatory (make someone do something)
o Prohibitory (prevent someone from doing something)
GENERAL CRAP
Timing
o Court may grant an injunction at any stage in a proceeding, or before
commencement of a proceeding (prior to proceeding in urgent cases only)
38.01
o If injunction granted prior to proceeding, the court may require an
undertaking that proceedings be commended 4.08
Notice
o Court may grant an injunction without notice (urgent cases only) 38.02
INTERIM INJUNCTION
What is it
o Injunction with a short operation period
o Used when there is an urgent need to protect the status quo
Requirements (need all 3)
o 1) There is a serious question to be tried
o

Previously known as a PF case


2) Damages are not adequate
Injunction will NOT be granted if the party seeking an injunction has
sufficient remedy available at law
3) The balance of convenience favours granting an interlocutory
injunction

120 | P a g e

Court will consider:


Inconvenience and hardship to the parties of granting
Any acquiescence/delay on part of the applicant (delay will
be fatal)
o Equitable remedy required clean hands
Whether the claim is frivolous or vexatious
Desirability of preserving status quo or preventing
irreparable injury pending full trial

INJUNCTION ON CONDITION OF SECURITY FOR COSTS


General Rule
o Each party shall bear their own costs of the interlocutory application unless
the Court orders otherwise 63.20
Exception: Injunction on Condition of Security for Costs
o May grant injunction on condition that party applying give security for costs
and expenses of any person affected 38.03(2)
o Still requires the usual undertaking as to damages
Costs suffered by a TP
o May make order for the payment (in first instance, or finally) of costs and
expenses of any person not being a party who might be affected by the grant
of an injunction 38.03(3)

Search Orders (Anton Piller Orders)


WHAT IS IT?
Injunction that allows applicant to enter respondents premises to inspect,
copy, detain or seize documents/property in the respondents possession
CONTEXT
Used where there is a high chance the information will be destroyed, hidden or
moved overseas
Always made ex parte (as if the respondent knew about it, they would hide the
information)
GENERAL INFO
Timing
o Can be ordered during, or in anticipation of, proceedings 37B.02(1)
Ex Parte
o Can be ordered without notice to the respondent 37B.02(1)
Permit Entrance
o Respondent can be required to permit persons to enter for the purpose of
securing or preserving evidence which may be relevant to an issue in the
proceeding 37B.02(1)
Form
o Shall be per FORM 37BA 37B.02(2)
REQUIREMENTS
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Requirements for a Grant of a Search Order: (per Anton Piller, modified by SPR)
o Extremely strong prima facie case ON ACCRUED CAUSE OF ACTION
37B.03(1)(a) AND
o Potential/actual loss or damage TO APPLICATION WILL BE SERIOUS IF
NOT GRANTED 37B.03(1)(b) AND
o Sufficient evidence THAT RESPONDENT POSSESSES IMPORTANT
EVIDENCE 37.03(1)(c)(i) AND
o Real possibility RESPONDENT MIGHT DESTROY SUCH
MATERIAL/MAKE UNAVAILABLE 37B.03(1)(c)(ii)
Implied Undertaking
o Applicant makes an implied undertaking to the court to refrain from using the
documents for any collateral/ulterior purpose
Affidavit in Support
o Rule
Applicant must provide all of this required information in an affidavit
37B.03(2)
Affidavit MUST INCLUDE:

Description of things to be seized 37B.03(2)(a)


Can only seize what is in the schedule of items

Address and location of the premises 37B.03(2)(b)


Whether there is a vulnerable person living there (woman, under
18 or any other person due to language/mental infirmity)
37B.03(2)(f)
Reasons order is sough and whether there is a real possibility
evidence will be destroyed/make unavailable 37B.03(2)(c)
Loss or damage to be suffered if order is NOT made 37B.03(2)(d)
Court Appointed Solicitor
o Court must appoint an independent solicitor to supervise the execution
of the search order 37B.06(1)
o P must undertake to pay the independent solicitors reasonable costs
and disbursements 37B.03(3)
Undertaking as to Damages
o Rule

Applicant must also make the usual undertaking as to damages


Example

The applicant, by its counsel, undertakes to the court that it will abide
by any order which the court may make as to damages, should the
court determine that the respondent has suffered any damage by
reason of this order which the applicant ought to pay

Freezing Orders (Mareva Injunctions)


WHAT IS IT?
Injunction that prevents D or TP from disposing of assets, removing them
from the jurisdiction or dealing with/diminishing the value of them
CONTEXT
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Used where property is in anothers possession and that person may sell, move,
dispose of, diminish value of the that property

GENERAL INFO
Timing
o Can be ordered anytime after proceedings have been issued 37A.02(1)
Ex Parte
o Can be ordered with or without notice to the respondent 37A.02(1)
TPs
o Court may make freezing order against a respondent, whether or not they are
party to proceedings 37A.04
o Can be made ex parte against a TP
Purpose
o Given for the purpose of preventing the frustration or inhibition of the
Courts process to prevent the judgment being partly or wholly unsatisfied
37A.02(1)
Form
o May be in Form 37AA 37A.02(3)
o MUST have affidavit in support attached
Damages Undertaking
o P must make the usual undertaking
o Note this has great effect, as the damage of TP not being able to deal with an
asset may be significant
Supreme Court of Vic Note of Freezing Orders
o Guide to consistent application of the rules
o This order is extraordinary

Limited to assets up to the likely maximum of Ps claim


Must allow for D to make normal expenditure

EFFECT
Court can:
o Prevent the respondent from removing the asset from Australia
37A.02(1)
OR
o From disposing, dealing with, or diminishing the value of those assets
37A.02(1)
Property Rights
o Do not create property rights in the assets or give you greatER RIGHT TO
ASSETS THAN ANYONE ELSE
AFFIDAVIT IN SUPPORT OF FREEZING ORDER (MUST INCLUDE THE FOLLOWING)
Information about Judgment/Claim
o Information about judgment THAT HAS BEEN OBTAINED 37A.02(5)(a)
o If no judgment obtained INFORMATION ABOUT CAUSE OF ACTION:

Basis of claim FOR SUBSTANTIVE RELIEF 37A.02(5)(a)(i)


Amount OF CLAIM 37A.02(5)(a)(ii)
If application made without notice to R, APPLICANTS KNOWLEDGE
OF ANY POSSIBLE DEFENCE 37A.02(5)(a)(iii)
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Rs Assets
o Nature and value of Rs assets, SO FAR AS THEY ARE KNOWN TO
APPLICANT (IN AND OUTSIDE AUSTRALIA) 37A.02(5)(b)
Third Parties Affected
o Identity of any other person WHO MAY BE AFFECTED BY FREEZING
ORDER 37A.02(5)(d)
Danger of the Person Controlling Assets Dealing with them
o Whether there is a danger that the judgment will be wholly or partly
unsatisfied 37A.05
Because the person controlling the assets may:
abscond 37A.05(4)(a)
remove the assets from Australia 37A.05(4)(b)(ii)
deal with them such that value diminishes 37A.05(4)(b)(ii)
o More likely to be the case if the respondent has business in other jurisdictions
Mareva

DISCHARGE
Rule
o

Court can DISCHARGE A FREEZING ORDER IN CERTAIN


CIRCUMSTANCES (E.G. COURT MISLED, CIRCUMSTANCES HAVE
CHANGED)

Security for Costs (LOOK FOR POSSIBLE P INSOLVENCY)


WHAT IS IT?
D can apply for an order that P give security for Ds costs, where there is a
risk that D might have no reasonable prospect of recovering their costs, if
they win
CONTEXT
Circumstances that suggest P may not being able to pay Ds costs:
o P is not in Vic
o P may become insolvent/bankrupt
GENERAL RULE
Rule
o D can apply for an order that P give security for Ds costs, where there is a risk
that D might have no reasonable prospect of recovering their costs, if they
are ultimately successful Order 62
May be Ordered Where:
o P is NOT in Vic
o

P ordinarily RESIDES OUT OF VICTORIA 62.02(1)(a)


P Sues for Another and has Insufficient Assets

P is corporation (not P who sues in representative capacity), or sues for


benefit of some other person AND reason to believe P has insufficient
assets in VIC to pay the costs of D if so ordered 62.02(1)(b)
Same Claim Pending

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Proceeding by P in another court for same claim is pending 62.02(1)


(c)
Issues with Ps Address

Ps address is not stated correctly or not stated in OP 62.02(1)(d)


P has changed address since beginning of proceedings to avoid
consequences 62.02(1)(e)

FAILURE TO GIVE SECURITY


Where P Does NOT give Security
o Effect
o

Court MAY dismiss THE PS CLAIM 62.04


Discretionary

It is ultimately discretionary
Following factors have been taken into account:
The means of the persons who stand behind the litigation
The prospects of success or the merits
The bona fides of the litigation
If P is an impecunious company

Whether Ps impecuniosity is attributable to the Ds conduct


Whether P is a party attacked & is in essence occupying the position
of the defence
Whether an order would be oppressive
If it would stifle the litigation
Whether a pre-existing special relation exists
Whether the litigation is a matter of public importance
Whether there has been an admission or payment into court
Whether there has been a delay in bring the application
Costs of enforcement procedures
Whether loss bearing, loss sharing entity is involved
The risk of dissipation of assets; and costs

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12a) Disposition without trial


WHAT IS IT?
The ways that trial can be avoided
Appox. 95% of cases do not go to trial
CONTEXT
4 ways that an action can be disposed of without trial
o 1) Summary Disposition

Default Judgment
Default of appearance
Default of defence
Failure to obey/meet an order

Summary Judgment
For P
For D
o 2) Dismissal for want of Prosecution
o 3) Discontinuance and Withdrawal
o 4) Settlement
Will also look at vexatious litigants

SUMMARY DISPOSITION
WHAT IS IT?
Where a default of summary judgment is made without the need for a trial
CONTEXT
Summary Disposition Includes the Following:
o Default Judgment

Default of appearance
Default of defence
Failure to obey/meet an order
Summary Judgment

For P
For D

Default Judgment
WHAT IS IT?
Where judgment is made without a trial because there is a serious
procedural error
CONTEXT
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3 situations that can result in default judgment:


o Default of appearance
o Default of defence
o Failure to meet/obey an order (Not examinable)

DEFAULT OF APPEARANCE
Context
o Where D does NOT file an appearance within the time limit
Requirements
o Writ
o

Only applies to proceedings commenced by writ r21.01(1)


D does NOT file appearance

D does NOT file an appearance within the time limited r21.01(2)


Notice to Prothonotary

P gives notice to Prothonotary requesting they search for Ds


appearance r21.01(3)(a)
Affidavit of Service

P can tender an affidavit proving service r21.01(3)(b)

Effect
o P may apply for judgment in default of appearance against the D r21.01(2)
Court May Vary
o Court may vary or set aside any judgment in default of appearance r21.07
o D must show reasons why appearance was not filed AND must pay costs
thrown away

DEFAULT OF DEFENCE (INCLUDES DEFENCE TO CC)


Context
o Where D does NOT file a defence within the time limit
Requirements
o D Fails to Serve Defence / Defence is Struck Out
D fails to serve a defence within the time limit, when he is required to
r21.02(1)
OR
D files a defence, but it is struck out under r24.02 for non compliance
with rules r21.02(3)
Affidavit of Default in Service of Defence

P must tender an affidavit of default in service of defence r21.02(2)

Effect
o P may apply for judgment in default of defence against the D r21.02(1)
Defence to CC
o If P does NOT file a defence to CC, D can get default judgment r21.06
Court May Vary
o Court may vary or set aside any judgment in default of defence r21.07
o D must show reasons and merits of defence AND must pay costs thrown away

JUDGMENT ON FAILURE TO MEET/OBEY ORDERS FOR PARTICULARS/DISCOVERY


127 | P a g e

Straight from NATS as not examinable


Where a plaintiff fails to serve a SoC within the time limit or does not set the
proceeding down for trial within 28 days the court may order the proceeding to be
dismissed 24.01
Where a party fails to comply with an order to give particulars or any pleading or
with a order for discovery or inspection of documents or for answers of interrogatories,
the Court may order:
o that the proceeding be dismissed 24.02(a) OR
o if the party is a defendant, that the defence be struck out 24.02(b)
Court has the inherent jurisdiction to dismiss proceedings or a defence 24.05
o Court may vary or set aside this judgment 24.06(a)

Summary Judgment
WHAT IS IT?
Where judgment is made without a trial because the other party has no
argument in law or fact
Based on the merits of the claim, rather than a procedural error
CONTEXT
Where there is a clear cut cases and the other party has no arguments
o SJ by either that a claim or proceeding generally:

o
o

SJ by
SJ by

Does NOT disclose a cause of action; or


Is scandalous, frivolous or vexatious; or
Is an abuse of process
No real prospect of success
the P that the D has no defence
the D that the D has a good defence

SUMMARY JUDGMENT BY EITHER P OR D (CATCH-ALL)


Catch-All (Does not disclose COA, Scandalous, Frivolous, Vexatious, Abuse of
Process)
o Rule
Court may stay proceeding, or give SJ, where a proceeding generally or
any claim in a proceeding: r23.01(1)
(a) does NOT disclose a cause of action; or
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of process
Case must be Very Clear

A case must be very clear to warrant summary dismissal


Court must exercise its jurisdiction with great care, and be satisfied
there is no question to be tried. If there is a question to be tried,
there should be no summary judgment Cubillo v Commonwealth
Intended to apply only to cases where can be no reasonable
doubt that P is entitled to judgment, and where, therefore, it is
inexpedient to allow D to defend for mere purpose of delay Jones v
Stone

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No Real Prospect of Success


o Rule

Court may give SJ if satisfied a claim, defence or CC (or part thereof) as


the case requires has no real prospect of success s63(1) CPA
Only applies to civil cases s63(1) CPA
Exercise with Caution

Should be exercised in accordance with the overarching purpose of the


CPA
The High Court recently addressed the Federal Court
equivalent, which are broadly analogous provisions, in Spencer v The
Commonwealth [2010] HCA 28
French CJ and Gummow J emphasised that powers of this kind
must be exercised with caution: The exercise of powers to
summarily terminate proceedings must always be attended with
caution. That is so whether such disposition is sought on the
basis that the pleadings fail to disclose a reasonable cause of
action or on the basis that the action is frivolous or vexatious or
an abuse of process.
Application

can give SJ: s63(2) CPA


(a) On application by P
(b) On application by D; OR
(c) On the courts own motion, if satisfied that it is desirable to
summarily dispose of the civil proceeding
No Real Prospect of Success

Court

Look at whether there is a realistic chance of success, rather than a


fanciful
English Court of Appeal in Swain v Hillman [2001] 1 All ER 91
considered a similar rule of court. Lord Woolf MR said at p92:
The words no real prospect of succeeding do not need any
amplification, they speak for themselves. The word real
distinguishes fanciful prospects of success or ... They direct the
Court to the need to see whether there is a realistic as opposed
to a fanciful prospect of success.

SUMMARY JUDGMENT BY PLAINTIFF


Context
o P argues that D has no defence on the merits
Exceptions
o Rule
Does NOT apply to claims for libel, slander, malicious prosecution, false
imprisonment, seduction or allegation of fraud r22.02(2)
If it Does?

Where a claim includes one listed in 22.02(2), P may apply for SJ for
other claims, and continue proceedings for the above mentioned claim
r22.02(3)
Requirements

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Writ

Only applies to proceedings commended by writ r22.01


After Appearance

Must be after D files an appearance r22.02(1)


D has no Defence

P must show that D has: r22.02(1)


No defence to the whole or part of the claim
OR
No defence expect as to the amount of the claim
Process

Summons
Applications for SJ by P must be filed by summons for final
judgment and supported by affidavit r22.03(1)
Affidavit
Must Include:
o Verify the facts which relate to the application r22.03(1)
(a)
o State that the deponent believes there is no defence
r22.03(1)(b)
Timing
o Must be served at least 14 days before day for hearing
r22.03(1)(d)
Ds Response
o D can do nothing, or may respond by affidavit showing why they have a
defence, or another reason by there should not be SJ r22.04
Counter Claims
o Same process applies r22.08
Effect
o Must be VERY Clear

SJ only granted where P is able to show an unanswerable case Cubillo


It is not enough to show that P is likely to win
Intended to apply only to cases where can be no reasonable
doubt that P is entitled to judgment, and where, therefore, it is
inexpedient to allow D to defend for mere purpose of delay Jones v
Stone

Effect

Court may grant SJ for P and dispose of the trial r22.02(1)

SUMMARY JUDGMENT BY DEFENDANT


Context
o D argues that D has a good defence on the merits
o E.g. Ps claim is statute barred as it is outside the limitation period
Requirements
o Writ
o

Only applies to proceedings commended by writ r22.01


After Appearance

Must be after D files an appearance r23.03


D has no Defence
130 | P a g e

D must show that D has a good defence on the merits r23.03


Process

Affidavit
May file affidavit in support of the application which details the
merits of the defence r23.04
Details can be given orally if court sees fit r23.04(1)

Effect
o Must be VERY Clear

SJ only granted where D is able to show an unanswerable defence


Cubillo
It is not enough to show that D is likely to win
Intended to apply only to cases where can be no reasonable
doubt that P is entitled to judgment, and where, therefore, it is
inexpedient to allow D to defend for mere purpose of delay Jones v
Stone

Effect

Court may grant SJ for D and dispose of the trial r23.03

131 | P a g e

Dismissal for want of prosecution: Inherent Jurisdiction


WHAT IS IT?
Dismissal of proceedings or a defence, where P or D fails to do an act or
take a step required by the rules
CONTEXT
Fail to serve SOC within time limit
Fails to file notice of trial or have date fixed for trial within time period
DISMISSAL FOR WANT OF PROSECUTION
Rule
o Court has the inherent jurisdiction to dismiss proceedings or a defence upon
the failure of party to do any act or take any step required by the Rules
24.05
Can Vary
o Court may vary or set aside this judgment 24.06(a)
Context?
o Court may order proceeding dismissed for want of prosecution where Plaintiff:
Fails to serve a statement of claim within time limited 24.01(a)
Does not file/serve notice of trial or apply to have a date fixed for trial,
within reasonable time after commencement of proceeding 24.01(b)
Fails to file and serve notice of trial within time allowed to P by Court
when fixing date for trial of proceeding under RULE 48.02(B)
24.01(c)
This is from Keara Check if its right?

Allows for dismissal if the interests of justice demand it:


The power should be exercised only where the Court is satisfied
either:
o (1) that the default has been intentional and
contumelious, e.g. disobedience to a preemptory order of
the Court or conduct amounting to an abuse of the
process of the Court; or
o (2)(a) that there has been an inordinate and inexcusable
delay on the part of the plaintiff or his lawyers, and
o (b) that such delay will give rise to a substantial risk that it
is not possible to have a fair trial of the issues in the
action or is such as is likely to cause or to have caused
serious prejudice to the defendants, either as between
themselves and the plaintiffs, or between each other, or
between them and a third party.
o Per Lord Griffiths in Department of Transport v Chris
Smaller (Transport) Limited [1989] AC 1197, 1203.
Failure to Obey an Order
o Where there is a failure to obey an order, the proceeding may be
dismissed (if P) 24.02(1)(a) or the defence may be struck out (if D)
24.02(1)(b)

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133 | P a g e

Discontinuance and withdrawal


WHAT IS IT?
Where P or D discontinues (a proceeding) or withdraws (a document)
DISCONTINUANCE AND WITHDRAWAL
Rule: Withdraw/discontinue a proceeding or part of it
o Plaintiff may discontinue a proceeding or withdraw any part of it
25.02(2)
before the close of pleadings; 25.02(2)(a) or
at any time, by leave of the Court or with the consent of all the parties
25.02(2)(b)
o Defendant may discontinue a counterclaim or withdraw any part of it
25.02(3)
before the close of pleadings 25.02(3)(a) OR
at any time, by leave of the Court or with consent of all other parties to
the counterclaim 25.02(3)(b)
Counter Claim
o At any time the plaintiff may withdraw a defence to counterclaim or any
part of it and a defendant may withdraw the defendants defence or
any part of it 25.02(4)
TP who has been Joined by D
o A defendant who has joined a third party may discontinue the claim
made against the third party by a third party notice or withdraw any part
of the claim at any time by leave of the Court or with the consent of the third
party 25.02(6)
Application
o Court must be satisfied, the discontinuance is not an abuse of process

E.g. P can NOT discontinue because he wants to commence


proceedings in a different jurisdiction where he could recover more Re
Matthews: Oates v Mooney [1905] 2 Ch 460
E.g. P can NOT discontinue to prevent a CC that is larger than the claim
he is pursuing Ernst & Young v Butte Mining Plc [1996 1 WLR 1605

Costs
o If P discontinues, he is usually liable for Ds costs
RJ or IE
o Discontinuance/withdrawal does not give rise to res judicata or issue
estoppel, unless there has been a settlement
o This means that if P discontinues, he can still bring fresh proceedings

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VEXATIOUS LITIGANT
WHAT IS IT?
Where P continues to bring legal action without any reasonable grounds
VEXATIOUS LITIGANTS
Who is a Vexatious Litigant?
o Where Court is satisfied that a person has habitually AND persistently
AND without any reasonable grounds instituted vexatious legal
proceedings 21(1) Supreme Court Act
Effect
o The Court Can:
Declare that person a vexatious litigant 21(2) Supreme Court Act
Provide that the vexatious litigant must not, without leave, continue or
commence any legal proceeding, or commence any specified type of
legal proceeding 21(3) Supreme Court Act
When will Leave be Given?

Leave will not be given to commence proceedings unless the


proceedings are not or will not be an abuse of process 21(4) Supreme
Court Act

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12B) FACILITATING SETTLEMENT


WHAT IS IT?
The process of facilitating settlement between the parties
Settlement is desirable on policy grounds as:
o Frees up court resources
o Saves money
o Parties can agree and both feel like they have won
CONTEXT
There is cost benefits to parties who attempt to settle prior to trial

Informal settlement
INFORMAL SETTLEMENT
Application
o Now that Order 26 (Offers of Compromise) have been implemented, it is
unclear whether informal settlement can still be used is there an
answer?
RJ or IE
o If you discontinue due to settlement before a trial is finished (even
during trial) there is no RJ or IE preventing re-litigation (although
may be written into settlement agreement)
Timing
o Can settle at any time during proceedings before, during and after trial
o Can be in a contract (informally) including agreement of claims made and the
payment of costs; as well an agreement to discontinue the action

Formal settlement: OFFERS OF COMPROMISE


CALDERBANK & WITHOUT CONFIDENCE
Without Prejudice Offer
o A settlement offer than is inadmissible in evidence
Calberdank Offer
o A settlement offer that is inadmissible in evidence, but is admissible for the
purpose of determining costs

OFFERS OF COMPROMISE
What is it?
o An offer from one party to another to settle the matter
o This offer is enforceable by the court by consent
Rule
o Without Prejudice
136 | P a g e

Offer made under O26 will be taken to be made without prejudice


unless the offer provides otherwise r26.05
No Disclosure to the Court Until Finalised

O26 offers are NOT disclosed to the court until all questions of liability
and relief have been determined r26.05(2)

Procedure
o Writing
o

Must be in writing O26


Identified as an O26

Must include a statement which identifies it as an O26 offer r26.03(1)


Multiple

Multiple offers can be served r26.03(2)


Timing

Can be made at any time before judgment 26.03(1)


A time limit for acceptance can be specified r26.03(3)
If no time limit is specified, offer is open for the sooner of 14 days, or
until judgment r26.03(3)
Acknowledgement of Office

Receiving party must give written acknowledgement of offer within 3


days of service r26.03(3)(i)
Withdrawn

Offers cannot be withdrawn during the period that it is open for


acceptance unless the Court orders so, or unless the offer is replaced
by an offer which is more favourable to the offeree 26.03(5)
Not Filed

O26 offers are NOT filed with the court


Can NOT be included in Affidavit

Can NOT be included in an affidavit


Cost Consequences
o Court Discretion
Note the court has discretion in making costs orders, so these rules are
just general r26.08
Offer Accepted

P normally entitled to costs on party/party basis up to date of service


26.03(7)
Ps offer is rejected, and P gets judgment equal or better than amount
offered
Claim concerns death or bodily injury
P gets costs taxed on an indemnity basis 26.08(2)(a)

Other Claims
P gets costs up to and including the day of offer on a party/party
basis AND thereafter on an indemnity basis 26.08(2)(b)
Ds offer is rejected, and P does NOT gets judgment equal or better
than amount offered
D pays Ps costs on party/party basis up to day the offer was served
AND
P pays Ds costs after that date on a party/party basis 26.08(3)

137 | P a g e

QUICK COSTS SUMMARY


Party/Party Costs: All costs necessary or proper for the attainment of justice or for enforcing
or defending the rights of the party whose costs are being taxed (Most common default
basis) 63.29
Solicitor/Client Costs: All costs reasonably incurred and of reasonable amount (Slightly
more generous than bare minimum of Party/Party costs) 63.30
Indemnity Costs: ALL costs incurred except insofar as they are of unreasonable amount or
have been unreasonably incurred (Closer to what solicitor actually charges their client)
63.30.1

138 | P a g e

13) TRIAL
WHAT IS IT?
When we actually get to trial!

Trial
SETTING DOWN FOR TRIAL
General
o Applied to ALL proceedings, whether commenced by writ or OM r48.01
o Have a date for trail is NOT enough must also set down for trial
Trial Date
o Fixed at the directions hearing which is about 4 weeks after the writ is served
Requirements to Set Down
o Notice of Trial

Rule

P must sign, file and serve a notice of trial under r48.02 at close
of pleadings and after exchange of evidence
Notice of trial should be in Form 48A r48.03

If P Fails to file and serve Notice of Trial in a Reasonable Time?


D may file and serve notice of trial r48.04(1)
OR
D may apply to dismiss claim for want of a prosecution
r48.04(1)
o (see previous topic)
Trial Fees

Must be paid to the court before trial, subject to exceptions


Specialist List Exception
o A trial in a specialist list does NOT need to be set down for trial r48.01(2)
o Includes:

Admiralty List; Technology, Engineering and Construction List (TEC


List); Commercial List; Corporations List; Intellectual Property List;
Valuation, Compensation and Planning List

PLACE AND MODE OF TRIAL


P may Indorse the OP with Place and Mode
o Writ

P may indorse writ with place and mode of trial r5.08

OM

P may indorse OM with place of trial r5.08


If P does NOT indorse?

Default place is Melbourne


Default mode is trial by judge alone
Judge or Jury
o General Rule

139 | P a g e

Any PROCEEDING OTHER THAN THOSE BELOW SHALL BE


TRIED WITHOUT A JURY UNLESS COURT ORDERS 47.03(2)
Shall be JURY OF SIX 47.02(4)
Writ with Contract/Tort

Proceedings COMMENCED BY WRIT AND FOUNDED ON


CONTRACT (INCLUDING K IMPLIED BY LAW) OR TORT (INCLUDING
DAMAGES FOR BREACH OF STATUTORY DUTY) SHALL BE TRIED
BY JURY 47.02(1)
Request for Jury

Who to Request
P in writ
D by notice in writing TO P & PROTHONOTARY

Formalities
WITHIN 10 DAYS AFTER LAST APPEARANCE EITHER
PARTY SIGNIFIES THE DESIRE TO HAVE PROCEEDING
TRIED BY JURY 47.02(1)(a)
Must pay JURY FEES ARE PAID 47.02(1)(b)

Effect
If the request is properly made, there is a PF right to trial by jury
TREVOR
Court Discretion
Court may order a matter listed for trial by jury to proceed by
way of judge alone GUNNS PER FORREST J

CONDUCTING THE TRIAL


Oral Evidence
o Evidence is generally given orally r40.02(a), but can be given in writing where
witness statements are ordered in specialist lists
o The current trend is away from affidavits
Who Starts?
o General Rule
The party who bears the onus of proof goes first r49.01(2)
Where BURDEN OF PROOF OF ANY QUESTION LIES ON THE P,
P SHALL BEGIN 49.01(2)(a)
Where BURDEN OF PROOF ON ALL THE QUESTIONS LIES ON
THE D, D SHALL BEGIN 49.01(2)(b)
Court Discretion

Court has overall discretion as to who starts r49.01(1)


Splitting a Case
o Separate questions can be tried separately r47.04
o Court can allow/order a party to split their case Protean
Opening Address and Evidence
o Opening Party

Party who begins (usually P) may make an ADDRESS OPENING THE


PARTYS CASE 49.01(4)
That party tHEN ADDUCES THEIR EVIDENCE 49.01(4)

140 | P a g e

Each witness may be cross-examined by D and re-examined by P s28


Evidence Act
P then closes his case (can NOT call any further evidence)
Next Party

D can elect to call no evidence and make a No Case submission


PROTEAN
If D wishes to call evidence, D opens, calls evidence and witnesses can
be crossed and re-examined as above
Closing Addresses

If next party has called no evidence, nor tendered anything in crossexamination


Next party gets the benefit of closing last r49.01(5)

ELSE, OPENING PARTY CLOSES LAST R49.01(6)

VERDICT AND JUDGMENT


Definitions
o Verdict: Conclusion reached on matters of fact
o Judgment: Conclusion reached on matters of law and orders made
Note that most trials involve judges alone, so the distinction is of little
importance
Court has Broad Powers
o Court can give such judgment or make such order as the case
requires on partys application at any time in the proceeding, whether
requested in originating process or not r59.01(1)
Reserved and Delayed Judgment
o Judgment can be reserved or delivered with reasons produced later
o Js shall take effect from day it is delivered, unless court otherwise orders
r59.02(1)
Formalities
o Oral Judgment

Shall be SUFFICIENT TO STATE RESULT ORALLY WITHOUT


REASONS, BUT WRITTEN REASONS SHALL THEN AND THERE BE
PUBLISHED BY DELIVERY TO THE ASSOCIATE 59.04
Authentication

Judgments and Orders must be FORMALLY AUTHENTICATED AFTER


COURT HAS DELIVERED JUDGMENT AS CONDITION OF
ENFORCEMENT OR APPEAL 60.01
Authenticated when a form of the JUDGMENT IS DRAWN UP AND
SETTLED IN ACCORDANCE WITH ORDER 60, IS SEALED BY
PROTHONOTARY WITH SEAL OF THE COURT 60.02(1)

Case Management Timeline

141 | P a g e

142 | P a g e

14) COSTS
WHAT IS IT?
Money that a party may recover from their opponent to reimburse them for
expenses incurred in the litigation
Note that cost orders are generally must less than actual legal costs
incurred
CONTEXT
That money stuff you can use to buy things like ice-cream and lawyers
EXAM

General Rule
Right to Costs
Cost Indemnity Rule
Exception to the CIR
o Including: lawyers and interlocutory
Complex
o Where P wins, and Ds CC also wins
o Where P wins against D1 and loses against D2 (MPO)
Quantum

Introduction
GENERAL INFORMATION
Definition
o Costs are money that a party may recover from their opponent in litigation,
for reimbursement of particular expenses incurred in the litigation
Purpose
o Costs awards are designed to reimburse for some legal expenses incurred in
conducting the litigation
o This is a disincentive for bringing unmeritorious cases or defending on
unmeritorious basis
o They are not generally designed to indemnify a party for all expenses it has
incurred
o BUT they are also used to discipline parties and encourage settlement
Unrepresented Parties
o Unrepresented parties cannot claim for the time they have spent preparing
and running their case (exception is self-represented solicitors)
Policy
o They can undermine access to justice acting as a barrier to poorer plaintiffs
and also the adversary system works best where equal financial abilities and
equal quality of representation

POWER AND DISCRETION OF THE COURT


143 | P a g e

Discretion of the Court


o The COSTS OF AND INCIDENTAL TO ALL MATTERS IN THE COURT, IS
IN THE DISCRETION OF THE COURT AND COURT HAS FULL POWER TO
DETERMINE BY WHOM AND TO WHAT EXTENT COSTS ARE TO BE
PAID s24 Supreme Court Act
o Power and discretion of Court as to costs under s24 of the Act shall be
exercised subject to and in accordance with this Order 63.02
Timing
o May exercise power & discretion as to costs AT ANY STAGE OF THE
PROCEEDING OR AFTER ITS CONCLUSION 63.03(1)
o Costs required to be paid shall be PAID FORTHWITH (IMMEDIATELY)
UNLESS COURT ORDERS 63.03(2)
Particular Question or Part of the Proceeding
o Court may make order for costs in relation to a PARTICULAR QUESTION
IN/PART OF A PROCEEDING 63.04(1)
o Court SHALL FIX PROPORTION OF TOTAL COSTS ATTRIBUTABLE TO
PARTICULAR QUESTION/PART 63.04(2)
Taxing
o What does this mean? Do you pay tax on costs?
o COSTS TO BE TAXED BY TAXING MASTER/MASTER OR
PROTHONOTARY/DEPUTY PROTHONOTARY WHERE TM DIRECTS
63.05
o Officers of Court to assist each other in taxation 63.06
o Where a party is to be paid costs, party shall be ENTITLED TO TAXED
COSTS 63.07(1)
Instead of taxed costs, COURT MAY ORDER A PARTY IS
ENTITLED TO
A portion specified in order of taxed costs 63.07(2)(a)
Taxed costs from/up to stage of proceedings specified in the
order 63.07(2)(b)
Gross sum specified in order instead of taxed costs 63.07(2)(c)
Sum in respect of costs to be determined in such manner as
Court directs 63.07(2)(d)
o Default Judgment

Where (DEFAULT) JUDGMENT ENTERED FOR COSTS UNDER


21.03(2) COSTS SHALL NOT BE TAXED, BUT FIXED BY
PROTHONOTARY IN ACCORDANCE WITH APPENDIX A SCALE
63.08(1)

COSTS OF LITIGATION
What are they?
o The amount of costs in a legal proceeding which the court orders one
party to pay to another
General Rule
o Referred to by r63.02
o Unless otherwise provided the costs of and incidental to all matters in the
Court is in the discretion of the Court and the Court has full power to
determine by whom and to what extent the costs are to be paid
s24(1) Supreme Court Act
144 | P a g e

Right to Costs
o Subject to the rules or any order of the court, a party does NOT have a right
to costs unless it can find a rule that entitles them to costs r63.13

Types of Costs & THE COST INDEMNITY RULE


COST INDEMNITY RULE
Cost Indemnity Rule
o Successful party recovers costs from the unsuccessful partY (I.E. COSTS
FOLLOW THE EVENT)
o Although reasonable expectation there is no right to costs, court has absolute,
unfettered discretion Byrns v Davey
There are 4 ways costs can be taxed
o Party and Party costs: All costs necessary and proper r63.29
o Solicitor and client costs: All costs reasonably incurred r63.30
o Indemnity costs: All costs, except those unreasonably incurred r63.30.1
o Other: such other basis as Court may direct 63.28(d)
1) PARTY AND PARTY BASIS
Rule
o All costs necessary or proper for the attainment of justice or for
enforcing or defending the rights of the party whose costs are being
taxed r63.29
Application
o Default

Most common
This is the default position r63.31
Going Beyond P/P?

In order to go beyond these costs there must be malicious or


unreasonable behaviours (Bongiorno J in Gunns)
Necessary or Proper
o Necessary for Attainment of Justice

necessarily taken or performed for the attainment of justice or the


maintaining or defending of the litigants rights W & A Gilbey Ltd v
Continental Liquers
Reasonable Performed without Extravagance

or although not necessarily performed for such purposes, would


reasonably have been performed for any of those purposes without
extravagance W & A Gilbey Ltd v Continental Liquers
NOT in Conflict with Law

and not in conflict with law, the practice of the Court, and the usage of
the legal profession W & A Gilbey Ltd v Continental Liquers
Hindsight

Determination is NOT made with the benefit of hindsight


If Doubt?

145 | P a g e

If there is doubt about whether a cost is necessary or proper, it is


resolved against the person claiming the item

2) SOLICITOR AND CLIENT BASIS


Rule
o All costs reasonably incurred and of reasonable amount r63.30
Difference to P/P
o Generally
o

S/C is slightly more generous than the bare minimum of party/party


Doubt

If there is about a cost, it is determined in favour of the person claiming


the amount
This is the opposite to P/P
Reasonableness of Amount

In assessing reasonableness of amount, can look at any costs


agreement between the solicitor and his/her client
Example of When S/C will be Ordered
o Unnecessary Delay in Defence

May be awarded against a successful D on the grounds that it was not


until the last day of the trial that D revealed to P a meritorious ground
for refusing its claim had there been an earlier disclosure, then the
litigation may have been avoided Verna Trading v New Indian
Insurance
Malicious or Unreasonable Behaviour

In order to go beyond these costs there must be malicious or


unreasonable behaviours (Bongiorno J in Gunns)

3) INDEMNITY BASIS
Rule
o All costs incurred except insofar as they are of unreasonable amount or have
been unreasonably incurred r63.30.1
o Getting closer to what the solicitor actually charged the client
Application
o Questions of unreasonableness are resolved in favour of the person to whom
costs are payable r63.30.1(2)
Grounds for Awarding Indemnity Costs
o D has No Chance of Success

Where D should have known they have no chance of success


Blackburn v State of NSW (unreported)
Public Interest

PIG wins and it is in the public interest to grant this NGO costs on an
indemnity basis Aus Federation of Consumer Organisations Inc,
Tobacco Institute of Aus
Misuse or Abuse of the Litigation Process

The timing and circumstances in which the proceeding where brought


amount to misuse and abuse of the litigation process Bollag v A-G
(Cwth)
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Unreasonable Prolonging

Unreasonable prolonging or delay of a case Rosniak v GIO


Mega-Litigation

Where P should have refined the issues in dispute to avoid costs


blowing out to a ridiculous amount Seven Network Ltd (Sackville J:
In my view the expenditure of $200 million is not only wasteful, but
borders on scandalous)

Exceptions to the Costs Indemnity Rules


INTRODUCTION
Rule
o Court has discretion to deviate from the costs indemnity rule, if any of the
following exceptions apply
Party wins in the wrong court
Party rejects a generous settlement offer
Party ultimately wins, but loses on some issues
Public interest litigation
Party acts in such a way as the court thinks they should PAY
Breach of the overarching obligations in the CPA
Deprive Successful D of Costs
o Need a more compelling reason to deprive a successful D of costs VERNA
PARTY WINS IN THE WRONG COURT
Unnecessarily High Court
o Where a party sues and wins in an unnecessarily high court, the court may
order the winning party indemnify the losing party for extra costs the loser
spent in defending the matter in the more expensive court R63.24(1)
o Does not APPLY IF PROCEEDINGS HAVE COMMENCED IN ANOTHER
COURT & TRANSFERRED TO THE COURT 63.24(4)

WINNING PARTY REJECTS A GENEROUS SETTLEMENT OFFER


Settlement
o See topic 12B facilitating settlement above

PARTY UNTIMATELY WINS, BUT LOSES ON SOME ISSUES


Court Can:
o Follow the General Cost Indemnity Rule

Award costs on basis of general (costs indemnity) rule to P as P is the


overall winner, despite losing some issues
Isolate Issues

Isolate issues as a part of causes of action and make P pay for issues D
won, and D pay for issues that P won
Percentage Approach (Most Preferable)

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Costs awarded as a percentage based on the time spent on each


issue Byrnes
Court able to estimate in percentage manner due to general discretion
afforded by s 24 SCA

PUBLIC INTEREST LITIGATION


Policy
o Counsel/solicitors have acted in the public interests or on a pro bono basis
and hence can be seen to have acted according to the highest ideals of the
law and even if unsuccessful they have served the role of the law and hence
the community (Postscript of Tampa (Ruddock v Vardalis) per Beaumont &
French JJ)
Public Interest Group Wins
o PIG may get their costs paid on an indemnity basis Tobacco Institute
o Tobacco Facts
Public interest group brought successful action to restrain the
Respondent from making misleading and deceptive statements on
issues of public health
Judge awarded indemnity costs to plaintiff after considering public
interest aspect and that proceedings were a test case on whether
passive smoking endangered the health of non-smokers
Public Interest Group Loses
o PIG may avoid getting costs order against them Ruddock

PARTY ACTS IN A WAY THAT THE COURT THINKS THEY SHOULD PAY
Rule
o Catch all as court has the final and full discretion to determine costs s24
SCA
Example
o The party uses underhanded tactics

Verna
D CAUSED THE ACTION BY NOT RESPONDING TO PS
REQUEST FOR INFORMATION
D WASTED TIME AND MONEY BY AMENDING AND DENYING
EVERY APPLICATION IN THE STATEMENT OF CLAIM
THERE WAS NO ORDER OF COSTS AS THE TRIAL WAS
SHORT, BUT D (THE WINNER) WAS ORDERED TO PAY THE
ACTUAL FULL LEGAL BILL OFF THE P FOR THE LEAD UP TO
TRIAL

PART 2.4 CPA: SANCTIONS FOR CONTRAVENING THE OVERARCHING


OBLIGATIONS
Rule
o In exercising its discretion as to costs, a court may take into account any
contravention of the overarching obligations s28(2) CPA
Effect

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Where a person has contravened any overarching obligation, court may


make any order it considers appropriate in the interests of justice including:
S29(1) CPA
(a) an order that the person pay some or all of the legal costs or
other costs or expenses of any person arising from the
contravention of the overarching obligation
(b) an order that the legal costs or other costs or expenses of any
person be payable immediately and be enforceable immediately

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Costs Orders against Lawyers


COST ORDERS AGAINST LAWYERS
Rule R63.23
o When?

63.23(1) Where a solicitor has caused costs to be:


incurred improperly OR WITHOUT REASONABLE CAUSE,
OR
to be WASTED BY LAWYER FAILURE TO ACT WITH
REASONABLE COMPETENCE & EXPEDITION

Effect

Court may order that:


Client does NOT have to Pay Solicitor 63.23(1)(a)
o All or any of the costs between the solicitor and the
client be disallowed
OR
o If client has already paid solicitor, the solicitor repay to
the client the whole or part of any money paid on account
of costs
Solicitor Pays Clients Costs 63.23(1)(b)
o Solicitor must pay to the client, all or any of the
costs which the client has been ordered to pay to any
party
Solicitor Pays Other Parties Costs 63.23(1)(c)
o Solicitor pays all or any of the costs payable by any
party other than the client 63.23(1)(c)
Sample Circumstances of Failure to Act with Reasonable Competence
o Solicitors AND Barristers

This rULE (R63.23) APPLIES TO BOTH SOLICITORS AND


BARRISTERS 63.23(7)

Rule

A solicitor FAILS TO ACT WITH REASONABLE COMPETENCE


AND EXPEDITION WHERE ANY APPLICATION IN/TRIAL OF A
PROCEEDING: r63.23
CAN NOT CONVENIENTLY BE HEARD
Can NOT proceed
Fails
IS ADJOURNED WITHOUT ANY USEFUL PROGRESS

AND this occurred because the solicitor failed to:


Attend in person or by proper representative 63.23(2)(a)
File any document which ought to have been filed 63.23(2)(b)
Lodge/deliver any document for use of the Court 63.23(2)(c)
Be prepared with any proper evidence or account 63.23(2)(d)
Otherwise proceed 63.23(2)(e)
Opportunity to be Heard

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Solicitor is to be given reasonable opportunity to be heard before Court


before the order is made R63.23(3)

Costs for INTERLOCUTORY HEARINGS AND SATELLITE LITIGATION


GENERALLY
Failing to Pay
o Where Court makes interlocutory order, if party liable to pay costs fails to do so,
THE COURT MAY:
Dismiss the PROCEEDING (IF PARTY IS PLAINTIFF) 63.03(3)(a)
Strike out the DEFENCE (IF PARTY IS DEFENDANT) 63.03(3)(b)
COST OPTIONS
Costs Reserved: Question of costs of interlocutory proceedings is deferred until
proceeding is finalised
No order as to costs: Parties bear their own costs of a hearing
o IF SILENT AS TO COSTS: TO BE DECIDED ON A PARTY/PARTY BASIS
Costs in the cause: Costs are to be borne by the party that ultimately loses the action
Costs in any event: Winner of interlocutory proceedings gets costs regardless
judgment at trial
Costs Thrown Away: Costs wasted because steps already taken become pointless, to
be borne by party that caused them to become pointless
Costs follow the event: The Indemnity Rule winning party has costs paid by the
losing party
Costs of the action: entire duration
Costs of the trial: only period/duration of trial

multiple party cost orders

P succeeds on claim, D succeeds on counterclaim


P WINS ON CLAIM, D WINS ON COUNTERCLAIM
General Rule
o P will be entitled to costs for the claim, and D would be entitled to costs for
the counterclaim
Overlap
o Issue

Some costs will have been incurred in relation to both the claim and
the counterclaim
Answer

Call Batman, he will know what to do


If Batman is Unavailable

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Court has discretion to do what it feels is appropriate


Depends on the circumstances
Options:
Offset
Apportion in proportion to the awards made
Apportion in proportion to percentage time spent on each claim

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WHERE CLAIM SUCCEEDS AGAINST ONE D AND FAILS AGAINST ANOTHER


GENERALLY
General Rule
o Losing D pays Ps costs
o P pays the winning Ds costs
Alternatively: MPO
o Court can exercise its discretion to award a multiple party order including:

Bullock
Sanderson

BULLOCK ORDER
General Rule
o Losing D reimburses P for winning Ds costs
o Explain that Please?
Losing D pays Ps costs
P pays the winning Ds costs
Losing D reimburses P for the payment of the winning Ds costs
Thus P bears the risk if losing D becomes bankrupt (for example)
and cant reimburse P Vucadinovic v Lombardi & Meyers
(Ors)
When Will a BO be Granted?
o TEST

Is it reasonable for the unsuccessful D to be liable for the Ps costs AND


the costs of the successful D?
Application

Must if the losing D did something to induce the P into suing


the winning D
If the unsuccessful D did nothing to lead the P into suing the
successful D, it is difficult to see why the unsuccessful D should
be liable for the Ps error of judgment in suing that D Gould v
Vaggelas (1984) 58 ALJR 560

SANDERSON ORDER
General Rule
o Losing D pays the winning Ds costs directly
o Explain that Please?

Losing D pays Ps costs AND the winning Ds costs


Winning D bears the risk if losing D becomes bankrupt
Grounds for Granting
o Same as Bullock
o In deciding whether to grant Bullock or Sanderson, just look at the specific
case
Difference to Bullock Order
o The only difference is where the losing D has no money

Bullock: Bankrupt losing D can NOT reimburse P, so P is out of pocket

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Sanderson: Bankrupt losing D can NOT pay winning Ds costs, so


winning D is out of pick

Quantum of Costs
WHERE PARTIES CAN NOT AGREE ON COSTS
General Rule
o If parties cannot agree on costs, then the matter goes to the Taxing Master
63.38
Formalities
o Must be initiated by summons (Form 63A) r63.38(1),(3)
o The parties must issue a bill of costs in the appropriate form which details all
costs incurred
Bill of costs must be filed and served as an attachment to the summons
Taxing Master
o Parties appear before the Taxing Master who makes a determination on each
costs r63.35
o Will have regard to Appendix A of SCR which contains a scale of costs

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15) ENFORCEMENT
WHAT IS IT?
If the judgment debtor (loser) does not obey the order, the successful
party can take steps to enforce
CONTEXT
Where loser doesnt obey the order
GENERAL RULE
General Rule
Will JD seek a stay?
JCs discovery to gather information
Mode of enforcement
Enforcement against non-parties

GENERAL INFO ON ENFORCY


GENERAL
NOT Self Executing
o Judgments are NOT self-executing
o If judgment debtor does NOT obey the order successful party can take steps
to enforce
Incentives for Judgment Debtor to Obey
o Interest
o

Accrues at 15%, which is far higher than the commercial rate


Enforcement Costs

The Judgment Debtor is liable for any costs incurred by the successful
party to enforce the judgment
Property

Property sold to enforce judgment debt usually realises a price less


than market value
Why would the JD not pay?
o No capacity (payment would force bankruptcy)
o Ignorance of issues (SCA s57-60) / cost conseqeunces
o Desire to appeal
o Belligerence
Timing
o JC has 15 years to enforce the judgment LAA s5(4)

ONCE THE JUDGMENT IS GIVEN


Authenticated
o Judgment must be authenticated (court seals a form setting out the details of
the judgment)

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Party Names
o Parties are now referred to as the Judgment Creditor (winner) and Judgment
Debtor (loser)
Pre-Trial Discussions
o Due to the possibility that JD can NOT or will NOT pay, it is vital to discuss
enforcement, costs and risk of non-satisfaction with client BEFORE
proceedings are issues, or a defence is filed

Stay of enforcement
STAY OF EXECUTION
Rule
o JD may apply for a stay of execution to delay the judgment r66.16
o JD must show special circumstances
Discretionary
o At the discretion of the court
In Practice
o Application is often made immediately after judgment, to the judge hearing
the matter
o Stay is usually set for a period of time (e.g. 30 days)
Effect
o JC can NOT enforce the judgment until the end of the stay period

Modes of Enforcement
SPECIFIC MODES OF ENFORCEMENT
Rule
o P who has succeeded is entitled to the fruits of its judgment Annot
Modes of Enforcement
o Which are Avail?

Generally most modes of enforcement are available to any JC


Some are more suited to money judgments
Best mode will depend on the financial circumstances of the JD
Can use DISCOVER IN AID OF ENFORCEMENT O67

Types

Warrants
Warrants of seizure and sale
Warrant of possession

Bankruptcy
Appointment of receiver
Bankruptcy / winding up

Third Party
Attachment of debts
Attachment of earnings
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Charging order
Instalment order

GATHERING INFORMATION
Rule
o JC can user Discovery in Aid of Enforcement Order 67 to assess JDs
assets and establish which enforcement order is appropriate
Service
o Must be served personally
Application
o JD attends court and produces any documents/oral evidence about any
property capable of satisfying the debt R67.02(1)

WARRANT OF SEIZURE AND SALE


Rule
o JC can apply for a warrant of execution (seizure & sale) r68.03
Formalities R68.04
o JC will apply without notice to Prothonotary using Form 68A
o JC pays fees
o Prothonotary will forward SEALED COPY TO SHERRIFF FOR
EXECUTION WITH A DIRECTION FOR THE SHERRIFF TO SEIZE AND
SELL PROPERTY TO SATISFY THE WHOLE JUDGMENT DEBT
(INCLUDING COST OF WARRANT, PAST WARRANTS, JUDGMENT,
COSTS & INTEREST)
Timing
o Warrant will be valid for 1 year and may be extended for 1 year R68.05
Seizure of Goods
o Forced Entry

Can NOT force entry


If entry is not permitted, only option is to sue for contempt of court
Type of Property AVAILABLE FOR SEIZURE

Real property, personal property, money & bills of exchange TB 1235


Sherriff does NOT have to remove assets, it is sufficient to place a
notice on the goods saying they have been seized
Excluded Property

Property THAT WOULD BE PROTECTED IN THE EVENT OF A


BANKRUPTCY CAN NOT BE SEIZED S42 SCA
Where a Third Party Claims Ownership of Seized Goods
o Rule

Party claiming interest must file notice with the Sherriff R12.03
Interpleader Summons

If JC chooses to dispute the claim, the Sherriff will apply to the court for
a determination as to whose property it is R12.07
Context

Friends property
Hired property
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Sale of Seized Goods


o Auction

Must be at auction first, and then can be sold at private sale if auction
fails to attract adequate bids
Moveable Property First

Should sell moveable property before real property


Process of Sale (Cams Notes as Probably Not Examinable)

Order of Sale [per r69.04]


(1) Where it appears to the Sheriff that the property subject to levy unde a
warrant is more than sufficient to satisfy the amount to be levied, he shall take or
sell so much of the property as appears to the Sheriff to be sufficient
(2) Subject to paragraph (3), Sheriff shall take or sell propety:
o (a) In such order as seems to the Sheriff best for the prompt execution of
the warrant without undue expense;
(3) Land shall not be put up for sale under the warrant until all other property
liable to sale under the warrant has been sold unless the debtor requests
Time, Place and Mode of Sale [per r68.05]
(1) shall upt up for sale all property laible to sale under a warrant:
o (a) As early as may be having regard to the interests of the parties AND
o (b) At the plae which seems to the Sheriff best for a beneficial sale
of the property
(2) In the case of property, other than land, which is liable for sale under a
warrant, the Sheriff may as the Sheriff thinks fit sell the property either by private
contract OR public auction
Advertisement of Sale (per 69.06)

BANKRUPTCY AND WINDING UP


Process
o Bankruptcy notice is served on the JD which requires payment in 14 days TB
1281
o Failure to pay constitutes an act of bankruptcy which entitles the JC to present
a bankruptcy petition TB 1281
o If JD is then declared bankrupt, trustee in bankruptcy is appointed to release
the bankrupts assets TB 1281
In Practice
o May be better getting an instalment order as JDs current assets may not
satisfy the claim, especially considering there may be other creditors that
need to be paid

ENFORCEMENT AGAINST THIRD PARTIES


Context
o JC may be able to collect from a TP who owes the JD money
o Referred to as an attachment of debt
Attachment of Debts
o Owing and Accrued
The debt must be owing and accrued r71.02
You can NOT attach a future debt
Bank Accounts

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Includes any amount in the bank account of the JD r71.03


Court Order

Requires a court order to be made r71.04


Apply on summons with affidavits (notice is not required)
Orders must be filed and served on non-parties
Attachment (Garnish) of Earnings
o What is it?

Where the JC is paid a regular amount directly from the earnings of the
JD
Note it is highly regulated by Order 72
Requirements

Court must be satisfied earnings are/will be payable to JD


Can NOT garnish to reduce earnings below the protected earnings rate
r72.05(5)
Can be adjourned to allow employer to attend or provide information
on earnings

CHARGING ORDER
What is it?
o Court orders a notice on the property so that it shows an interest r73.02
o Often done with shares or securities
o Kind of like a caveat, but without a property interest and with way more
chocolate
Gives preference over unsecured creditors

INSTALMENT ORDERS
What is it?
o JD asks that his debt be paid off in instalment Order 61; Judgment Debt
Recovery Act 1984
Application
o Often done with the consent of the JC
o It is possible to vary the terms later on application
o When granted, operates as a stay of other enforcement methods s9 JDRA
When Will it be Granted?
o Court will consider:
Reasonableness of payment period
JDs genuine ability to pay the instalments
Necessary living expenses of the JD
What if JD Does NOT Pay Instalments?
o Court can imprison JD for up to 40 days if he persistently and wilfully defaults
without an honest and reasonable excuse s19 JDRA

References:
Notes and format are based on Nat Devitsakis notes
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James Hertan and KEARA STRETTONS NOTES HAVE BEEN ADDED


BATMAN WAS VERY HELPFUL
CAM HARVEYS NOTES HAVE BEEN ADDED
STUDY DISCUSSIONS WITH LACHLAN SALT, ANNA OCALLAGHAN, ALEX
YORSTON, MIKE BAILEY & KEARA STRETTON HAVE BEEN ADDED
Lecturers were Greg Reinhardt, Karinne Ludlow, Randall Kune

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