(Lawbook Co. Nutshell) Bridget Cullen - Civil procedure-LexisNexis Butterworths (2018)

lawbook co.
nutshell
civil procedure
by
BRIDGET CULLEN
BA (magna cum laude), JD, MA, LLB, PhD
Member
Administrative Appeals Tribunal
FOURTH EDITION
LAWBOOK CO. 2018

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Author’s Acknowledgment
Thank you to all of the law students I have had the pleasure of
teaching over the last 20 years. You have made teaching litiga-
tion an entirely enjoyable endeavour, and kept me on my toes.
And, a special thanks to my loving husband, Andrew, and my
children Nicholas, Daniel and Meghan. You are my everything.
DR BRIDGET CULLEN
Member, Administrative Appeals Tribunal

Table of Contents
Author’s Acknowledgment.......................................................... v
1. Fundamental Principles...................................................... 1
Introduction.........................................................................1
A Brief History of Civil Procedure........................................2
Sources of Law......................................................................2
The Fundamental Principles.................................................5
Overview of a Simple Action..............................................12
2. Case Management ............................................................ 13

Introduction.......................................................................13
Directions Hearings............................................................14
Caseflow Management Principles.......................................14
Caseflow Management Schemes........................................16
3. Jurisdiction ....................................................................... 22
Introduction.......................................................................22
The State and Territory Courts...........................................23
The Commonwealth Courts...............................................25
Statutory Extension of Jurisdiction....................................27
4. Parties and Joinder.......................................................... 32

Particular Parties.................................................................32
Joinder................................................................................40
Interpleader........................................................................47
5. Limitation Periods............................................................. 48
Introduction.......................................................................48
Common Limitation Periods..............................................49
Calculating Time.................................................................53
Extension of Limitation Periods.........................................57
6. Commencing Proceedings............................................... 60
Originating Proceedings.....................................................60
vii
viii Civil Procedure
7. Service and Appearance................................................... 65

Service.................................................................................65
Appearance.........................................................................68
8. Pleadings............................................................................ 71
Introduction.......................................................................71
Statement of Claim.............................................................73
Defence...............................................................................75
Further Pleadings................................................................79
Counter-claims....................................................................80
Third and Subsequent Parties............................................80
Particulars...........................................................................81
9. Interlocutory Applications............................................... 84
Introduction.......................................................................84
Procedure...........................................................................85
Common Types of Interlocutory Orders............................86
Affidavits.............................................................................89
10. Ending Proceedings Early ............................................. 92

Introduction.......................................................................92
Dismissal for Want of Prosecution......................................93
Default Judgment...............................................................95
Summary Judgment............................................................97
Judgment on Pleadings or Admissions.............................100
Discontinuance.................................................................101
11. Errors and Amendment................................................. 102

Introduction.....................................................................102
Irregularities.....................................................................102
Time and Delay.................................................................103
Amendment......................................................................106
12. Discovery....................................................................... 111

Introduction.....................................................................111
Discovery of Documents..................................................115
Interrogatories..................................................................120
Inspections and Examinations.........................................125
Notice to Admit.................................................................125
Table of Contents ix
Non-party Discovery.........................................................126
Other Forms of Discovery.................................................126
Objections Relevant to All Forms of Discovery................126
13. Settlement...................................................................... 133

Introduction.....................................................................133
Payment into Court..........................................................134
Calderbank Offers.............................................................134
Formal Offers to Settle.....................................................135
Settlement.........................................................................136
14. Trial and Judgment........................................................ 139

Introduction.....................................................................139
Preparing for Trial.............................................................140
Mode of Trial....................................................................141
Venues, Trial Dates and Adjournments............................143
Verdict and Judgment.......................................................147
15. Costs............................................................................... 149

Nature of Costs.................................................................149
Types of Costs...................................................................150
The Incidence of Costs.....................................................151
Security for Costs..............................................................152
Common Costs Orders.....................................................154
Taxation of Costs..............................................................156
16. Appeals........................................................................... 158

Introduction.....................................................................158
Lodging an Appeal............................................................159
Stay of Decisions...............................................................160
Leave to Appeal................................................................160
Nature of a Re-hearing......................................................161
Costs of Appeals...............................................................164
17. Enforcement................................................................... 165

Introduction.....................................................................165
Enforcing Money Judgments............................................167
Enforcing Non-money Judgments....................................170
Interstate and Overseas Judgments..................................172
x Civil Procedure
18. Alternative Dispute Resolution.................................... 173

Introduction.....................................................................173
Negotiation.......................................................................174
Mediation..........................................................................180
Arbitration.........................................................................181
Index.......................................................................................183
1
Fundamental Principles
Introduction
[1.10] Civil procedure is a general term encompassing the
laws, rules, procedures, and practices governing the process
of determination and enforcement of civil claims. Such a study
requires consideration of the fundamental nature of the Anglo-

Australian civil process, legislation governing the jurisdiction
of courts, legislation providing other restrictions upon making
claims, such as the Limitation of Actions Acts, and the court
rules. However, “rules and forms of procedure are not ends in
themselves, but means to an end, which is the attainment of
justice”: Union Bank of Australia v Harrison, Jones & Devlin
Ltd (1910) 11 CLR 492.
In the context of procedure or practice issues, the term
“civil” is generally used to distinguish the area from criminal
process and therefore applies to a range of processes, includ-
ing administrative adjudication and arbitration. While proce-
dure can be contrasted with “substance”, the distinction is often
blurred. Civil procedure is the body of rules relating to the pro-
cess by which disputes are adjudicated. As civil process is the
machinery of the legal system, it has a profound impact upon
substantive legal rights and remedies.
The primary source of law in civil procedure is the court
rules; however, a number of principles have been developed
in the case law, and there are a number of statutes that have
significant impacts, such as the Judiciary Act 1903 (Cth) and
limitation of actions statutes. In addition, the Commonwealth
Constitution, and to some extent, the State constitutions, have
significant impacts.
1
2 Civil Procedure
A Brief History of Civil Procedure

[1.20] Local courts or communes undertook the determina-
tion of disputes in England during the Anglo-Saxon period.
In 1066, following the conquest of the Normans, local feudal
courts developed. In order to increase power and control the
King, relying upon the royal prerogative to keep the peace and
dispense justice, established a jurisdiction for what would ulti-
mately be the royal courts of justice. A key tool in this expan-
sion of centralised justice was the issuing of writs. The writ was
originally a royal command by the King (in writing –hence the
term “writ”) to come before him or his council. As the system
developed, the pressure of work required courts of justice to be
established. Questions of law were determined by the judges

and questions of fact heard by a judge with a jury from the area.
The procedure which originally developed was very rigid, with
particular forms of writ for different types of action. This in turn
shaped the nature of the substantive law.
The system of Equity evolved to overcome the inadequacies
of the rigid common law system. The Chancellor was referred
many of the “Bills” by the King, and eventually the Court of
Chancery developed. Long and complex systems of pleading
developed, with the system effectively running parallel with the
system of common law courts. Ultimately, the common law and
equitable courts were merged by the Judicature Act 1873 (Imp).
Sources of Law
[1.30] In Australia, no State or Territory, nor the Commonwealth,
has codified the law relating to civil procedure. There are a num-
ber of disparate sources of law applicable in the various courts.
Statutes
[1.40] Statutes are the primary source of civil procedure in
Australia as each court is established by statute, for example,
the various State and Territories’ Supreme Court Acts, District
Ch 1: Fundamental Principles 3
or County Court Acts and Magistrates’ or Local Court Acts, etc.

In addition, there are statutes dating back to antiquity that have
had significant impacts on procedure, such as the Common Law
Procedure Acts, Judicature Acts and Equity Acts. In most States
and Territories, much of this legislation has been re-enacted in
a Supreme Court Procedure Act of some form. However, there
remain Jury Acts, Crown Proceedings Acts, Limitation of Actions
Acts, and many more statutes having specific procedural con-
tent (eg, the motor vehicles’ insurance legislation which governs
personal injuries actions arising out of motor vehicle collisions).
Rules of Court
[1.50] The “rules” of the various courts govern the bulk of the
day-
to-
day matters important to civil process. In this book,
where a specific citation is not otherwise given, references are
to the rules of court applicable in the stated jurisdiction. For
example, Qld, r 293 refers to rule 293 of the Uniform Civil
Procedure Rules 1999 (Qld).
The rules in English courts are subordinate legislation
enacted by a committee of judges from the court. In Australia,
while the judges still have effective control over the rules, they
are usually enacted as delegated legislation of the Minister,
or even legislation of the Parliament. It seems that this is a
response, at least in part, to a relatively strict application of the
principle of separation of judicial power adopted in Australia as
part of the Westminster system of government.
Rules of court are, however, considered to be only proce-
dural law and not substantive law. Procedural law is confined to
the manner or means by which legal rights and duties may be
enforced. The distinction between “substance” and “procedure”
becomes quite blurred and difficult at times.
Judicial Precedent
[1.60] As with other areas of the law in the Australian system,
there is a significant body of case law explaining and applying
4 Civil Procedure
the statute law and rules. In addition, the case law has devel-
oped a large number of underlying principles that apply. It is
rare to pick up a volume of the law reports without finding
cases concerning issues of procedure.
Practice Directions
[1.70] The courts issue practice directions from time to time,
which vary in significance from the notification of the change
of address of a firm of solicitors (to relieve them of the bur-
den of filing a notice of change of address in every matter for
which they are on the record) to the House of Lords Practice
Statement of 1966, when the House of Lords announced that
it would no longer consider itself bound by its previous deci-

sions. Most commonly, practice directions provide details
of how the court will deal with its work, particularly in mat-
ters where no clear procedure is laid out in the court rules.
Increasingly, there are practice directions that relate to the
way in which the court will deal with modern technology, such
as the electronic filing of documents, or taking of video link
evidence.
Forms and Precedents

[1.80] The court rules and practice directions prescribe a vast
array of forms for use at each stage of proceedings. With the
computer age, stricter compliance with layout and typeface
requirements is now being enforced by the registrars of the
courts to ease processing of documents.
In addition to the array of prescribed forms, there are a num-
ber of substantial volumes containing precedent pleadings,
interrogatories and the like. While these texts do not form part
of the actual law in the area, they are regularly relied upon by
practitioners and the courts for drawing documents: see for
example Azize, El Khouri and Finnane’s Pleading Precedents
(Lawbook Co., Australia) and Bullen and Leake and Jacob’s,
Precedents of Pleading (Sweet & Maxwell, London). There are
also a range of online precedents databases, such as Thomson

Reuters Australian Commercial Precedents.
Inherent Jurisdiction
[1.90] The inherent jurisdiction of the court is a peculiarly English
doctrine. The inherent jurisdiction of the court does not flow
from a particular statute, but from the very nature of the court as
a court of law. The essential nature of a court is that it must have
the power to maintain its authority and regulate its processes to
prevent them from being abused. Thus, the inherent jurisdiction
provides a basis for the law of contempt. Inherent jurisdiction is
exercisable summarily, that is, without a formal trial. While inher-
ent jurisdiction, in its widest sense, is confined to superior courts

(such as the High Court, Supreme Courts, Federal and Family
Courts), inferior courts (such as the District and Magistrates’
Courts) nonetheless exercise a limited inherent jurisdiction.
The Practices of the Court

[1.100] Unfortunately, not every detail as to the operation of
a court may be set out in the texts of the various sources of
law. There remain numerous practices of courts and judges at
particular centres as to the minutiae of court business. These
practices will only be learned from other practitioners and
attendances upon the particular courts.
The Fundamental Principles

[1.110] While the relatively strict doctrine of separation of
judicial power adopted by the Commonwealth Constitution
(R v Kirby; Ex parte Boilermakers’ Society of Australia (1956)
94 CLR 254) does not apply at the State level, the nature of judi-
cial functions remains fundamentally different to other govern-
ment functions. This difference lies not only in the finality and
enforceability of the decision made, but also by the different
process of decision making.
6 Civil Procedure
A number of basic or fundamental principles of civil process

may be identified, which distinguish civil procedure from other
forms of government function.
The Principle of Finality

[1.120] The decision of the hearing judge or jury is considered
final on questions of fact (provided that it has been properly
obtained). The outcome of a trial or hearing is also considered
final unless overturned by an appeal court. The concept of final-
ity is based on the principle that it is in the interest of the pub-
lic that there should be an end to litigation. The principle has
founded a number of doctrines such as:
1. “Functus officio” –the principle that once a ruling has been made
by a court it is no longer open to the court to reconsider its ruling as
its function has come to an end.
2. “Res judicata” –the principle that one cannot again litigate a cause
of action that has been determined. The concept has received con-
siderable extension with the High Court’s substantive rather than
technical approach to its application: Port of Melbourne Authority v
Anshun (1981) 147 CLR 589.
3. “Issue estoppel” –the principle that factual issues determined in
one case may not be re-litigated in another case involving the same
parties.
These principles are discussed at greater length in the nutshell

on Evidence.
The Principle of Procedural Privity

[1.130] This is the principle which, more than any other, appears
to distinguish an adjudicative system from other systems. Only
parties with a proprietary interest (Caltex Oil (Australia) Pty
Ltd v The Dredge “Willemstad” (1976) 136 CLR 529) or, in the
case of public rights, those that have suffered special damage
or have a special interest (Australian Conservation Foundation
v The Commonwealth (1979) 146 CLR 493) are entitled to be
joined as parties or bring a suit. However, in some limited areas,
standing has been granted to various interest groups by statute.
The Principle of Procedural Fairness

[1.140] The principles of procedural fairness (or natural justice as
they were formally termed) are taken to their very pinnacle by the
system of civil procedure in the supreme courts: it is the imple-
mentation of the principle of the right to be heard taken to its
fullest extent. Thus, the rules of service are strict to ensure notice
of claims. The rules of pleading and discovery are extensive, to
ensure that a party is appraised of precisely the case to be met. The
rules for trial ensure that each party has a full and equal opportu-
nity to put its case, and comment on the case of their opponent.
The principle that the decision maker must be free of bias
is also taken to its highest form. No actual bias need be estab-
lished before a judge will be disqualified from hearing a case.

The test applicable to the judiciary is simply whether “a fair-
minded observer might entertain a reasonable apprehension
of bias or prejudgment”: Livesey v New South Wales Bar Assoc
[1983] HCA 17; see also Johnson v Johnson (2000) 201 CLR
488, affirmed in Ebner v Official Trustee in Bankruptcy (2000)
205 CLR 337.
The Adversarial Principle

[1.150] In an adversarial system, the parties, not the court, must
commence the proceedings. The parties choose whether to set-
tle or go on to finality (trial and judgment). The parties frame
the issues for determination in the pleadings and the parties
have the obligation to produce the evidence.
To some, as Lord Denning pointed out, this means that “[i]‌n
litigation as in war. If one side makes a mistake, the other can
take advantage of it. No holds are barred”: Burmah Oil Co Ltd
v Bank of England [1979] 1 WLR 473. Pollock and Maitland
suggested the well-known analogy of the cricket match, stating
that “the judges sit in court, not in order that they may discover
the truth, but to answer the question, ‘How’s that?’ ”. This is a
significant distinction from many of the continental systems of
procedure which remain inquisitorial.
8 Civil Procedure
Thus, if a trial judge intervenes too greatly in the course of

a trial, a re-trial may be ordered: Jones v National Coal Board
[1957] 2 QB 55. However, a trial judge has a clear obligation
to control the conduct of the trial (Ashmore v Corporation of
Lloyds [1992] 2 All ER 486) and, in limited circumstances, to
ensure that the evidence necessary to a proper determination is
before the court: Bassett v Host (1982) 1 NSWLR 206. However,
these principles do not apply so readily to pre-trial procedures
where parties have many opportunities to amend or modify
their case, or make further applications.
Under the adversarial system, the dispute is seen as a purely
private matter of the parties. The inquisitorial system assumes
that the state has an interest in the proceedings once the court
becomes involved, and therefore the court has a significant role
in how the proceedings are framed and pursued. The different
systems demonstrate a fundamental distinction in the way soci-
ety views civil disputes.
However, even in the adversarial system in Australia, the
interest of the state (which must fund the courts) is taking a
more significant role. Thus, case management systems are being
implemented in most courts, and judicial directions as to the
preparation and conduct of cases are becoming more common
(see Chapter 2 Case Management). However, the inquisitorial
system should not be seen as a panacea: for example, in France
there has been considerable public pressure for a simplified and
less expensive system.
The Principle of Orality

[1.160] The importance of the jury to the English system of
justice, and hence to the Australian system, has resulted in
most trials being heard orally. Orality at trial is a significant
feature of the justice system and facilitates a number of the
other fundamental principles. For example, orality allows for
complete publicity as anyone can sit and listen to the trial and
hear all that the jury will hear. Orality also allows for the pro-
tection and security of our civil rights, by ensuring that a judge
may determine the veracity of a witness by hearing them in

person.
In legal argument, orality ensures that the judge or jury hears
all of the argument and can engage in argument with counsel to
test theories or ideas. It also facilitates the litigant who appears
in person.
The cost implications of oral proceedings are large. This has
led to increased pressure for the use of written arguments and
statements or affidavits of evidence in chief to minimise hearing
times. In many jurisdictions, interlocutory matters are deter-
mined on the papers only. However, it must be remembered
that orality was never central to equity, where proceedings were
traditionally conducted on written documents.
The Principle of Publicity

[1.170] The importance of public justice cannot be overstated.
Bentham stated that: “[t]‌he grand security of securities is pub-
licity –exposure –the completest exposure for the whole sys-
tem of procedure –whatever is done by anybody, being done
before the eyes of the universal public”.
If public hearings are not maintained, the courts will not be
open to “public and professional scrutiny and criticism, with-
out which abuses may flourish undetected”: Russell v Russell
(1976) 134 CLR 495. As Lord Hewart LCJ pointed out, it “is of
fundamental importance that justice should not only be done
but should manifestly and undoubtedly be seen to be done”:
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256.
However, the competing considerations become difficult to
discern in some cases, such as the AIDS sufferers who wished
to sue anonymously in Queensland. The judgment of the Court
of Appeal contains an extensive discussion on the issue: J v L
& A Services Pty Ltd (No 2) [1995] 2 Qd R 10. The principle
also leads to other important ramifications: for example, see the
famous article by Owen Fiss, Against Settlement 93 Yale Law
Journal 1073 (1984).
10 Civil Procedure
The Principle of Disclosure

[1.180] The parties must disclose the nature of their case in the
pleadings and particulars. The parties’ documents must also be
disclosed in the discovery phase of preparation for trial. A party
may seek discovery of the documents of a person who is not a
party to the proceedings. In addition, a party may interrogate
(by written questions) another party as to the facts of the claim,
particularly for purposes of establishing whether they are a
proper defendant to the claim.
Discovery was an invention of the Court of Chancery, said to
“scrape the conscience of the defendant … so as to surround a
slippery conscience and to stop up every earth”.
As Sir Jack IH Jacobs stated in his Hamlyn Lecture:

“The process of discovery operates as a powerful procedure instru-
ment to produce fairness, openness and equality in the machinery
of English civil justice. It enables each party to be informed or to
be capable of becoming informed of all the relevant material evi-
dence, whether in the possession of the opposite party or not; it
ensures that as far as possible there should be no surprises before
or at the trial; it reveals to the parties the strengths or weakness of
their respective cases, and so produces procedural equality between
them and it encourages fair and favourable settlements, shortens the
lengths of trials and saves costs”.
The Jury System

[1.190] Juries are now relatively uncommon in civil trials in
Australia. However, the option of trial by jury in common law
(not equitable) claims remains in most jurisdictions, although it
has been excluded in many personal injuries areas.
The earliest forms of a jury are to be found in an ordinance
of Ethelred II (c 1000CE). By the 15th Century, all evidence
had to be given in court, and witnesses were no longer part
of juries. In 1607, it was clearly established that the jury was
not bound to decide cases in accordance with the wishes of the
King: Bushell’s case (1670) UK.
However, the jury system has shaped the civil justice process.
The use of the jury system has resulted in a clear demarcation
between trial and pre-trial procedures which is central to civil
procedure today. Generally, the trial consists of one continuous
and uninterrupted hearing before the court where the parties
must present all of their evidence and arguments. Such a dis-
tinction is not so clear in the inquisitorial systems.
The jury system has also resulted in the clear distinction between
questions of law and fact which remains central to appeals.
The Obligation to Provide Reasons

[1.200] There is an obligation placed upon judges to provide

reasons for their decisions: King Ranch Australia Pty Ltd v
Cardwell Shire Council [1985] 2 Qd R 182. The provision of
reasons fulfils two important functions: first, as reasons must
show a high level of correlation to the arguments and evidence
of the parties, they demonstrate that the judge has confined his
or her considerations to the evidence and arguments of the par-
ties. Secondly, the provision of reasons allows the parties to see
how the decision was reached and allow any errors to be iden-
tified for the purpose of appeal.
The Incidence of Costs

[1.210] The usual rule for costs is that costs follow the event;
that is, the unsuccessful party pays the costs of the successful
party: Laotudis v Casey (1990) 170 CLR 534. The power to make
a costs order is a statutory power and is not founded upon the
inherent powers of the court, save where it is an incident of the
court power to control proceedings before it (a lack of power to
order costs continues in many jurisdictions in the United States).
Court costs can become greater than the amount of the
claim, particularly in the lower courts. In early stages, this is
likely to induce settlements, and in later stages becomes an
impediment to settlement.
12 Civil Procedure
The incidence of costs can also be seen as excluding many

litigants from the courts as a loss would result in costs orders
too great for the average person to pay. However, it may also be
an important dampening influence on the growth of litigation,
particularly speculative litigation. This difficulty was, to some
extent, mitigated by the availability of legal aid. However, there
remain a number of circumstances where legal aid is simply
unavailable to prospective parties for civil litigation.
An important aspect of costs is that a party may have a law-
yer’s costs “taxed”; that is, inquired into by an officer of the
court. If the court officer is not satisfied that the costs were
properly and reasonably incurred, they will not be allowed.
Appeals lie to the court from the taxing officer’s decision.
Overview of a Simple Action

[1.220]
• Originating process and statement of claim issued and served

on defendant
• Defendant enters an appearance and files a defence
• Plaintiff delivers reply and pleadings close
• Plaintiff and defendant discover (disclose) to each other all
documents relevant to the action
• Plaintiff and defendant may deliver interrogatories to each
other (series of written questions requiring sworn response)
or may deliver notices to admit facts or documents
• Parties may engage in alternative dispute resolution
• Action is entered for trial and trial date allocated
• Witnesses are subpoenaed
• Trial takes place
• Judgment is entered
• Costs are determined
• Enforcement of judgment takes place.
2
Case Management
Introduction
[2.10] In recent years, there have been a number of strong
and sustained criticisms of the civil justice system in Australia,
England and the United States. These criticisms fall into three
general categories:
• access to justice;
• inefficiency; and
• delay.
Access to justice is the principle that all citizens should have
open to them a reasonable avenue to pursue and enforce their
rights. Often, this results in two areas of dispute: the extent
of legal aid funding available and the complexity of the legal
(and, in particular, litigation) system. Unfortunately, no great
increases in legal aid have been forthcoming from govern-
ment, nor is greater funding likely in the foreseeable future.
The more common result is attempts to simplify court proce-
dures and provide informal tribunals to hear and determine
disputes (such as small claim tribunals). However, it must be
remembered that when more professional and judicial effort
is applied, it is more likely that the resulting decision will be
just: see generally Zuckerman, Quality and Economy in Civil
Procedure (1994) Oxford J Leg Studies.
The costs of running courts have come under increasing
scrutiny. Much of a judge’s time is seen to be wasted by unnec-
essary interlocutory applications and trials that settle on the
morning they are to commence. These problems, and the lack
of judges, also lead to delays. The legal profession is also seen
13
14 Civil Procedure
to contribute to delay as a result of the profession’s apparently

laissez-faire attitude and the fact that it is often seen to be to the
defendant’s advantage to delay proceedings. However, there are
increasing numbers of complex cases involving multiple parties.
An often quoted example is the United Kingdom case of Derby
& Co Ltd v Weldon [1990] Ch 48, which resulted in 10 reported
interlocutory decisions (with various citations not replicated
here), and settled before trial.
As a result of these concerns, the courts have adopted case
management schemes in an attempt to make better use of the
court’s time and to minimise the costs and delay to litigants. In
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455, de Jersey CJ
held that “(p)arties do not have an inalienable right to a hearing

on all issues on the merits”, in circumstances where the litiga-
tion would be constrained from proceeding in a just and expe-
ditious fashion.
Directions Hearings
[2.20] In all cases, the parties may apply to the court for direc-
tions as to the preparation or the conduct of the matter. In
multi-party cases, directions hearings are often important to
ensure that the interlocutory steps are undertaken in an orderly
fashion.
Caseflow Management Principles

[2.30] The generally accepted key features of caseflow manage-
ment involve application of the following:
• early judicial control;
• continuous judicial control;
• short scheduling of the events;
• management of conflict in lawyers’ schedules; and
• certainty of events occurring, even if this involves use of the
“principle of the dark courtroom”.
Ch 2: Case Management 15
There are effectively three basic concepts that have been

employed by the courts to meet the principles set out above:
(1) continuous control by a judge monitoring each case (each
judge having a “docket” of cases);
(2) requiring the parties to report to the court at various mile-
stones in the progress of an action; and
(3) diversionary schemes requiring the parties to engage in
alternative dispute resolution (ADR) at early stages.
Usually a combination of these concepts is employed in order to
make better use of the resources of the courts. However, caseflow
management also requires sanctions when the parties fail to com-
ply with the management systems or directions. Not infrequently,
courts are asked to consider late amendments to a party’s claim

or defence in circumstances where that party has failed to comply
with case management directions. In considering whether to per-
mit such an amendment, following the High Court’s decision in
Aon Risk Services Australia Ltd v Australian National University
(2009) 239 CLR 175, the judge must consider all factors relevant
to the exercise of the power to permit an amendment in making
a decision. These factors include the extent of any delay resulting
from the amendment; any wasting of costs; any case management
concerns; the importance of the amendment; the potential for
prejudice to other parties; any explanation for the late amend-
ment; and, importantly, how far the litigation has already pro-
gressed at the time of the amendment.
It is clear, following Aon, that a party will not automatically
be entitled to amend their pleadings at any stage. As a conse-
quence of this decision, it is important that litigants take steps
to ensure that their cases are properly plead at an early junc-
ture, in order to avoid any need to seek leave to make late
amendments to pleadings.
In Aon, the High Court effectively overruled the decision it
had made in 1997, in Queensland v JL Holdings Pty Ltd (1997)
189 CLR 146. In JL Holdings, the High Court allowed an appeal
from a decision of the Federal Court refusing the defendant’s
application to amend its pleadings six months before the
16 Civil Procedure
listed trial date. The High Court established the principle that
although case management is a relevant consideration, justice
is the paramount consideration. Providing that other parties
could be compensated for any costs thrown away, JL Holdings
stood for the proposition an arguable amendment to a pleading
could be made at any time. This is no longer the case.
All seven judges in Aon held that the JL Holdings principle
was inconsistent with earlier High Court decisions and should
not apply in future. A party may now bring an application
seeking to amend a pleading, but “particularly if litigation is
advanced”, limits will be placed upon the granting of leave to
amend by the court.
Caseflow Management Schemes

[2.40] Each jurisdiction has implemented some form of case
management scheme, varying from the need to file a certificate
stating that a case is ready for trial (the traditional system) to
assigning each case to a managing judge from the time the case
is filed.
High Court
[2.50] The High Court controls its workload through the require-
ment that appellants obtain “special leave” to appeal. In applica-
tions for special leave, the applicant must file and serve, within
28 days after filing an application, a summary of argument: High
Court Rules 2004 (Cth), r 41.05.1. A respondent must then file
and serve its summary of argument within 21 days after service
of the applicant’s summary of argument: High Court Rules 2004
(Cth), r 41.06.1. Parties are only given a limited opportunity to
present oral argument, and fixed dates for hearings are set by
the Court.
Federal Court
[2.60] The Federal Court adopts an individual docket system.
As cases are filed they are assigned to a judge to supervise the
interlocutory stages. A directions hearing date is assigned by

the Registry when process is issued: Federal Court Rules 2011
(Cth), r 8.05. At the directions hearing, interlocutory matters are
timetabled, and directions as to the preparation of the matter
are given by the Court: Federal Court Rules 2011 (Cth), r 5.04.
Directions will include the delivery of pleadings (if necessary)
and discovery, and may include the appointment of an expert
witness, the exchange of statements or reports etc.
The Federal Court enables parties, where appropriate, to
seek an expedited or truncated hearing process, together with a
tailored or concise pleading process, in any proceeding: Central
Practice Note: National Court Framework and Case Management
(CPN-1).
Australian Capital Territory

[2.70] In the ACT, cases are managed through a docket system.
The Court may, at any stage of a proceeding, on application by
a party or on its own initiative, make directions about the con-
duct of proceedings: (ACT), r 1401.
The plaintiff is required to serve a set of proposed directions
about conduct of the matter in conjunction with service of the
statement of claim. The parties should endeavour to agree on
the directions. Parties must attempt ADR in advance of the court
listing the matter for final hearing. The court endeavours to
allocate a date for trial between 9 and 11 months after com-
mencement of the proceedings: Practice Direction 2 of 2014.
New South Wales

[2.80] Different techniques are adopted for case management in
different courts in NSW.
District Court
[2.90] In the District Court, litigants are not to commence an
action unless they are ready to proceed, with a view to listing
the matter for hearing within 12 months of commencement.
18 Civil Procedure
Supreme Court
[2.100] The Supreme Court in NSW is comprised of divisions,
namely the Court of Appeal, the Court of Criminal Appeal, the
Common Law Division and the Equity Division. Each division
maintains their own registrars, who are, along with the judge,
responsible for case management.
Cases of similar character are placed on “lists” and the lists
are then governed by specialised Practice Notes, which set out
the applicable requirements. Each list is managed by a judge, in
conjunction with a registrar. The relevant specialist lists in the
Common Law Division are the:
• Administrative Law List;

• Defamation List;
• Possession List; and
• Professional Negligence List.
All other proceedings are allocated to the General Case
Management List.
In the Equity Division, the specialist lists include the:
• Admiralty List;
• Commercial List;
• Corporations List;
• Revenue List;
• Probate List;
• Protective List; and
• Technology and Construction List.
Commercial and Construction Lists

[2.110] Whilst each list is subject to the requirements of the
applicable Practice Note, in the Commercial and Construction
List, the rules and practice notes reject traditional forms of
pleading, in favour of an “Initiating Statement” by a plaintiff and
a “Response” by a defendant. These documents are required to

set out in summary form:
• the nature of the dispute;
• the issues which are likely to arise;
• the contentions and response to contentions;
• the questions that either party considers to be appropriate
for referral to a referee for report; and
• identification of all attempts to mediate.
Matters in these lists are actively managed, and may include a
range of directions, such as the use of a single expert by both
parties, timetables for preparation, directions relating to disclo-
sure, or referral for mediation.
Victoria
[2.120] In Victoria, the Civil Procedure Act 2010 provides the court
with extensive powers to manage the litigation before it. In the
ordinary civil list, Practice Note No 1 of 1996 [1997] sets out the
manner by which cases are to be managed. Additionally, the court
has introduced a number of specialist lists managed by particular
judges including the Long Cases List, Commercial List, Building
Cases List, Valuation List, Major Torts List, Family Provision List,
Corporations List, Intellectual Property List, and Admiralty List.
A directions hearing is held early in the matter on any of the spe-
cialist lists, and appropriate direction given. The court may also
refer cases to mediation or arbitration if the parties consent.
South Australia
[2.130] South Australia operates a system of formalised case
management, with the objective of resolving cases that are likely
to settle: IPA Manufacturing Pty Ltd v Industrial Pyrometers
[2001] SASC 224.
The parties must prepare a litigation plan in advance of
a directions hearing, held approximately 8 weeks after the
20 Civil Procedure
defendant has filed a defence: (SA), r 1301. In cases not deemed

suitable for a litigation plan, the parties must arrange and attend
a settlement conference: (SA), r 130. After the settlement con-
ference, a party may apply for a trial date by filing a certificate of
readiness: (SA), r 120A.
There are special management rules applicable to cases on
the “Long and Complex Trial List” and cases on this list are
assigned for pre-trial management where matters relating to
pleadings, disclosure, experts, and alternative dispute resolu-
tion may (amongst others) be addressed.
The court may refer a matter to mediation, or for trial by an
arbitrator: Supreme Court Act 1935 (SA), ss 65-66.
Western Australia
[2.140] Cases are entered for trial in WA when the pleadings
close. Case management is regulated by O 1, rr 4A, 4B and
O 4A, as well as the Consolidated Practice Directions of 2009,
“Case Management”. Complex matters may be entered in the
Commercial and Managed Cases List, where they will be man-
aged by a supervising judge. The court may hold status, man-
agement, evaluation, and listing conferences as necessary and
also has the power to order the parties to attend mediation.
Queensland
[2.150] In Queensland there is an emphasis on the ADR process
to divert cases from the courts as part of the pre-trial manage-
ment process: Civil Proceedings Act 2011 (Qld). The court may
refer a case to Mediation or Case Appraisal at any stage with or
without the consent of the parties: ss 43-45. A supervised case
list and specialised commercial list are also maintained for more
complex cases.
Family provision proceedings must have regard to Practice
Direction No 8 of 2001, which encourages an early resolution,
following consent of the parties, and with minimal appearances.
Tasmania
[2.160] Case management in Tasmania applies to particular
classes of proceedings. These include proceedings commenced
by writ, other than personal injury proceedings; proceedings
where summary judgment was refused; proceedings where
summary judgment was given but stayed pending hearing on
a counter-claim; and where requested by a party: (Tas), r 414.
Where case management applies, the court will convene a direc-
tions hearing.
If a matter falls outside the class of proceedings to which the
case management practice direction applies, the parties simply
file a certificate of readiness when the matter is ready for trial
and a pre-trial compulsory conference has been held: (Tas),

rr 541-542, 544. There is power for the parties to seek direc-
tions prior to signing a certificate.
Northern Territory
[2.170] Case management proceeds in accordance with Practice
Direction 6 of 2009. Within 21 days after an appearance is filed,
the court holds a directions hearing: (NT), r 48.04. At this hear-
ing, the proceeding may be referred for mediation or a settle-
ment conference, or a timetable fixed for trial: (NT), rr 48.04,
48.06. Additionally, Practice Direction No 4 of 2004 requires a
further directions hearing to be held 3 months after the plead-
ings close, at which parties present a “litigation plan”. The plan
must set out the legal and factual issues raised, what interloc-
utory steps are necessary, the evidence to be called, and must
include a timetable and suggestions to shorten the proceeding.
Additionally, parties must identify matters appropriate for medi-
ation, and an estimate of costs to be incurred.
The court may also direct parties to attend a settlement con-
ference ((NT), r 48.12) or mediation: (NT), r 48.13.
3
Jurisdiction
Introduction
[3.10] In considering jurisdiction, there remain two questions
which must be asked to determine if a court has jurisdiction:
(a) is the action within the geographic jurisdiction of the court;
and
(b) is the action within the subject matter jurisdiction of the
court?
As courts are an arm of the state, their jurisdiction is necessarily
determined by the boundaries of the state, the constitution of
the state, any interstate agreements and restrictions or limita-
tions in the legislation establishing the court.
In actions in personam (against a person) service upon the

defendant in the state traditionally founds the court’s jurisdic-
tion. In actions in rem (where the action is with respect to a
thing, such as a ship, and will effectively be against anyone with
an interest in the thing) the thing must be within the jurisdic-
tion of the court.
The concept of jurisdiction is rooted in the power of the courts

to enforce their judgments. Hence the starting point is presence
within the jurisdiction, as this will enable the bailiffs to physically
enforce the judgment if need be. Thus, service of originating
process on the defendant while he or she is in the geographic
jurisdiction, founds the courts jurisdiction: Laurie v Carroll
(1958) 98 CLR 310. However, this has slowly been extended
over time and the principle now applies even if the presence
is fleeting, such as attendance at a race meeting: Maharanee of
22
Ch 3: Jurisdiction 23
Baroda v Wildenstein [1972] 2 QB 283. Importantly, superior

courts have a general presumption of jurisdiction, and any find-
ing in this regard must be the subject of appeal if it is to be dis-
puted, however an inferior court’s jurisdiction may be changed
by collateral proceedings (such as an injunction of the Supreme
Court): DMW v CGW (1982) 151 CLR 491.
In addition to geographic jurisdictional limits, there are also
subject matter limits imposed by the legislation establishing
many courts. With regard to inferior courts, the most significant
restriction is usually a monetary limit. The availability of infe-
rior courts has the practical effect of reducing the jurisdiction
of higher courts, as a matter that may be heard by a lower court
will be transferred to that court by a higher court. Not all sub-

ject matter issues are so simple, and often the federal and state
jurisdictions will overlap.
The various court rules and legislation have significantly
extended the court’s jurisdiction where there is some connec-
tion between the subject matter of the action and the court’s
geographic jurisdiction. Within Australia, the Commonwealth
has provided a statutory scheme for the service of a person any-
where in Australia: Service and Execution of Process Act 1992
(Cth). In addition, the various States and the Commonwealth
have entered into a cross- vesting scheme, discussed below
under “Extensions of Jurisdiction”.
The question of jurisdiction will also be relevant after trial,
if an appeal is to be pursued, so as to ensure that the correct
appellate tribunal is chosen.
The State and Territory Courts

[3.20] The various State and Territory Supreme Courts are
invested with such jurisdiction as is necessary to do justice,
or with the same jurisdiction as the English superior courts
prior to the Judicature Act 1867 (Imp): see Australian Capital
Territory (Self Government) Act 1988 (Cth); Supreme Court Act
1970 (NSW); Supreme Court of Queensland Act 1991 (Qld);
24 Civil Procedure
Supreme Court Act 1979 (NT); Supreme Court Act 1935 (SA);
Tas: Australian Courts Act 1828 (Imp); Constitution Act 1975
(Vic); Supreme Court Act 1935 (WA).
Each State also has a Magistrates Court with a corresponding
monetary (as well as subject matter) jurisdictional limit. Most
States have an intermediate court of limited jurisdiction staffed
by judges with jurisdictional limits that fall between the limits
applicable in the Magistrates and Supreme Courts.
In addition to the traditional courts, there are a plethora of
specialist tribunals or courts to deal with matters such as anti-
discrimination, planning and environment, and the valuation of
land for rates, land tax and compulsory acquisition. Many of the
specialist tribunals are constituted by judges of the common law

courts commissioned for that purpose.
In some States, the jurisdiction of the inferior courts is also
divided into various geographical districts. Thus, the action
must be connected with the particular geographic district of
the Magistrates Court where the proceedings are to be tried.
However, in most instances, actions may be transferred between
courts and court districts if the geographic or subject matter
requirements are not met: Esanda Finance Corp Ltd v Meehan
[2008] QDC 318.
The State courts may also exercise the judicial power of
the Commonwealth if it is conferred on the State court by the
Commonwealth parliament: Constitution 1901 (Cth), s 77(iii).
This conferral has occurred via the Judiciary Act 1903 (Cth),
s 39, which invests the State courts with jurisdiction over all
matters where the High Court has original jurisdiction. Thus,
State courts have federal jurisdiction in:
(a) all matters that the High Court has original jurisdiction to
determine under s 75 of the Constitution 1901 (Cth); and
(b) matters where the High Court may be given original juris-
diction under s 76 of the Constitution 1901 (Cth).
Importantly, Territory courts are not federal courts, as they are
not established under Ch III of the Constitution 1901 (Cth),
but under s 122 of the Constitution 1901 (Cth) as part of the

Territories power: Capital TV and Appliances Pty Ltd v Falconer
(1971) 125 CLR 591.
The Commonwealth Courts

[3.30] There are three Commonwealth courts that regularly
hear civil litigation: the High Court of Australia, the Federal
Court and the Family Court. The jurisdiction of all three courts
is governed by the Constitution 1901 (Cth) and the relevant Act
of Parliament. The Federal and Family Courts are established
by the Commonwealth pursuant to the power to create federal
courts in s 71 of the Constitution 1901 (Cth) and they receive

jurisdiction pursuant to s 77.
High Court of Australia

[3.40] The High Court is established by the Constitution 1901
(Cth). The original jurisdiction of the High Court is guaranteed
by s 75 of the Constitution 1901 (Cth) in all matters:
(i) Arising under any treaty:
(ii) Affecting consuls or other representatives of other
countries:
(iii) In which the Commonwealth, or a person suing or being
sued on behalf of the Commonwealth, is a party:
(iv) Between States, or between residents of different States, or
between a State and a resident of another State;
(v) In which a writ of Mandamus or prohibition or an injunc-
tion is sought against an officer of the Commonwealth.
In addition, the High Court has exclusive jurisdiction in various
matters, pursuant to ss 38, 39 of the Judiciary Act 1903 (Cth),
including:
(a) matters arising directly under any treaty;
(b) suits between States;
26 Civil Procedure
(c) suits by the Commonwealth against a State;

(d) suits between States and the Commonwealth; and
(e) matters where a writ of mandamus or prohibition is sought
against an officer of the Commonwealth or a federal court.
As a matter of practice, the High Court remits many matters
to the State Supreme Court or Federal Court for hearing and
determination: Judiciary Act 1903 (Cth), s 44. A matter may
be remitted to any of the courts that are convenient, regard-
less of whether that court would otherwise have had jurisdic-
tion: Johnstone v Commonwealth (1979) 143 CLR 398. It is now
rare for the High Court to hear the trial in any matter. For an
example of a case remitted for fact finding, see Mabo v State of
Queensland (No 2) (1992) 175 CLR 1.
Federal Court of Australia

[3.50] The Federal Court is established by the Federal Court of
Australia Act 1976 (Cth). The Court is not one of general juris-
diction and is limited to matters where jurisdiction is specifi-
cally conferred by a statute: Federal Court of Australia Act 1976
(Cth), s 19 and Thomson Australian Holdings Pty Ltd v Trade
Practices Commission (1981) 148 CLR 150. The major areas
of jurisdiction are: Native Title, Trade Practices, Corporations,
Admiralty, Bankruptcy and Discrimination.
However, s 32 of the Federal Court of Australia Act 1976 (Cth)
extends the Federal Court’s jurisdiction to matters associated
with a matter within the Court’s jurisdiction: Commonwealth
v Lyon (2003) 133 FCR 265. The Court has the power to deter-
mine whether it has jurisdiction in a matter before it: Residual
Assco Group Ltd v Spalvins (2000) 202 CLR 629.
Family Court of Australia

[3.60] The jurisdiction of the Family Court of Australia is
defined by the Family Law Act 1975 (Cth) and the Child
Support legislation. Additionally, some matters arising under
the Marriage Act 1961 (Cth) and Bankruptcy Act 1966 (Cth)
also confer jurisdiction on the Family Court. As most matters
before the Family Court will rarely involve associated common
law claims, difficulties rarely arise. To the extent that claims
may be outside the ambit of the Courts’ statutory jurisdiction,
this will be resolved by reliance upon the cross-vesting scheme
(discussed below).
Statutory Extension of Jurisdiction

[3.70] The most significant aid to jurisdiction is the concept that
a defendant may “submit” to the jurisdiction of the court. This
can be done:
(a) by entering an unconditional appearance or defence; or
(b) by entering into an agreement to submit to the jurisdiction.
Statutory Extensions of Jurisdiction within

Australia
[3.80] There are two significant statutory aids to establish-
ing jurisdiction in Australia: the cross-vesting scheme and the
Service and Execution of Process Act 1901 (Cth).
Cross-vesting
[3.90] In 1987, all of the States and the Commonwealth enacted
a Jurisdiction of Courts (Cross-vesting) Act 1987 effectively con-
ferring jurisdiction onto the Federal Court, Family Court and
the other Supreme Courts in accordance with the Act. The effect
was that all superior courts in Australia had the jurisdiction of
all other superior courts “cross-vested” to them: Gould v Brown
(1998) 193 CLR 346.
The object of the scheme was to:
(1) establish cross-vesting, without detracting from the juris-
diction of the existing courts;
28 Civil Procedure
(2) to ensure, as far as possible, that matters are commenced

in the court that would have had jurisdiction apart from the
scheme (the most appropriate court); and
(3) to permit the transfer of matters to the appropriate court
where commenced in an inappropriate court.
Following the decision of the High Court in Re Wakim;
Ex parte McNally (1999) 198 CLR 511, the High Court held
that these cross-vesting laws, insofar as they conferred State
jurisdiction onto the Federal courts, were constitutionally inva-
lid. However, the cross-vesting laws are valid insofar as they
confer Federal jurisdiction on State and Territory Supreme
Courts. These portions of the cross- vesting laws remain
intact; following Wakim, in 1999, all of the States passed a

Federal Courts (State Jurisdiction) Act 1999, which treats
Federal Court or Family Court judgments as single judge State
Supreme Court judgments. However, there is some uncer-
tainty as to the effect of the Wakim decision in the ACT and
NT, as these jurisdictions have not passed legislation that corre-
sponds to the other State’s Federal Courts (State Jurisdiction)
Acts 1999.
Section 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987
(Cth) invests the State Supreme Courts with federal jurisdiction,
and confers it upon the Supreme Courts of the ACT and NT in
circumstances where the State Supreme Courts would not have
jurisdiction over a matter, but the Federal or Family Court would.
While there is no formal onus of proof on a particular party,
there will effectively be an onus on the party requesting the
transfer: Bankinvest AG v Seabrook (1988) 14 NSWLR 711. No
appeals are available from a decision as to cross-vesting, thereby
confirming that the matter is not to become a central issue in
proceedings. It is for the court to determine the most appropri-
ate forum to hear the proceedings: James Hardy & Coy Pty Ltd
v Barry (2000) 50 NSWLR 357.
Section 5 of the Jurisdiction of Courts (Cross-Vesting) Act
1987 (Cth) provides for the transfer of actions. Section 5(1) pro-
vides for the transfer of proceedings from the Supreme Court to
the Federal or Family Court; s 5(2) provides for the transfer of

proceedings from the Supreme Court to the Supreme Court of
another State or Territory; s 5(3) for the transfer of proceedings
in the Supreme Court of another State or Territory to the NSW
Supreme Court; s 5(4) for the transfer of proceedings from the
Federal or Family Court to the Supreme Court; and s 5(5) pro-
vides for the transfer of proceedings arising out of, or related to,
proceedings previously transferred.
The conditions to be satisfied before proceedings are trans-
ferred in relation to applications under ss 5(1), 5(2), are set out
in the relevant subsections. Section 5(9), inserted after Wakim,
limits the proceedings which can be transferred, giving effect
to Wakim.
Service and Execution of Process Act 1992 (Cth)

[3.100] The Commonwealth has power under s 51(xxiv) of the
Constitution 1901 (Cth) to make laws “extending the jurisdiction
of courts of the states so far as their jurisdiction is dependent
on the service of process”. The Service and Execution of Process
Act 1992 (Cth) “SEPA” makes such provision, and covers the
field in this regard: see Constitution 1901 (Cth), s 109. Service
under SEPA is to be carried out in the way prescribed under
s 15. A notice in Form 1 of the Service and Execution of Process
Regulations 1993 (Cth) must be served with the document: SEPA,
s 16. Service must be proved in accordance with SEPA, s 11.
The effect of SEPA is to enlarge the State Courts’ in personam
jurisdiction to the whole of Australia. SEPA provides some pro-
tection for defendants; s 19 enables a court to order security for
costs, and s 20 allows a court to order that an action be stayed if
satisfied that another court is the appropriate court to hear and
determine the matter.
Statutory Extensions of Jurisdiction Outside

of Australia
[3.110] The various court rules contain provisions allowing
court litigants to serve process outside of the jurisdiction
30 Civil Procedure
provided there is sufficient connection with the jurisdiction

to satisfy SEPA or the applicable rules. However, this juris-
diction remains discretionary and may be declined by the
court, unlike jurisdiction based upon service within the juris-
diction which may not be declined by the court. In the ACT,
NSW, NT, Qld, SA, Tas and Vic, a plaintiff may serve out of
the jurisdiction without leave of the court, but requires lib-
erty to proceed if the defendant does not appear. In WA and
the Federal Court, leave is required before serving out of the
jurisdiction.
Most courts have rules permitting service out of the jurisdic-
tion in the following matters:
(a) Where the subject matter of the action is property within

the jurisdiction;
(b) Where a document or Act affecting property within the
jurisdiction is to be construed;
(c) Where the defendant is domiciled or ordinarily resident in
the jurisdiction;
(d) The administration of estates of persons dying within the
jurisdiction;
(e) The execution of trusts relating to property within the
jurisdiction;
(f) Where the subject matter of an injunction is within the
jurisdiction;
(g) Where a necessary or proper party is outside the jurisdiction;
(h) Interlocutory processes;
(i) Most commonly, service outside the jurisdiction is per-
mitted where the subject of the action is a tort commit-
ted within the jurisdiction (this is extended to cases where
only damage is caused within the jurisdiction in the Federal
Court, NSW, NT, Qld, SA, Tas and Vic); and
(j) Actions on contracts made or breached within the jurisdic-
tion or alternatively contracts governed by the law of the
jurisdiction.
Service out of the jurisdiction is permitted in the following mat-

ters, in the following jurisdictions:
• Cause of action arose within the jurisdiction –Federal Court,
ACT, NSW, Qld, and Tas.
• Breach of statute within the jurisdiction –Federal Court, ACT,
NSW, Qld, SA and Tas.
• Claims for contribution or indemnity –Federal Court, NSW,
Qld, and Tas.
• Counter-claims and third party notices –ACT, Qld, SA, Vic
and WA.
• Arbitration inside the jurisdiction –Federal Court, ACT, NSW,
Qld, SA and Tas.

• Matters involving a party’s membership of a corporation –
Federal Court, ACT, NSW, Qld and Tas, if the corporation is
incorporated or trades within the jurisdiction. In WA, the
rules permit service out of the jurisdiction if the subject mat-
ter is a share or stock in a corporation that has its principle
place of business in that State.
4
Parties and Joinder
Particular Parties
[4.10] All proceedings in the courts involve an application of at
least one party, seeking some form of relief or remedy, and most
commonly two or more parties. However, not all actions involve
natural persons of full legal capacity acting in their own right.

Particular parties to litigation therefore deserve special atten-
tion before commencing proceedings.
Corporations
[4.20] Most corporations are incorporated under the
Corporations Act 2001 (Cth). Following lodgement of an
application (s 117), the Australian Securities & Investments
Commission “ASIC” may issue the company with an ACN, regis-
ter the company, and issue a certificate containing the details of
registration: s 118. Once a company is registered, it has the same
legal capacity and powers as an individual and is capable of suing
and being sued: s 124. Proceedings against companies that have
been put into liquidation cannot be maintained, unless leave is
granted by the court: s 471B. The same rule applies to compa-
nies that enter into voluntary administration: s 440D. The leave,
however, can be granted nunc pro tunc, that is, notwithstanding
that the proceedings have been commenced without the court’s
leave under the Act. Similarly, any execution against the com-
pany’s assets is void after a winding up is commenced (s 500),
except by leave of court, and the litigant must instead prove the
debt as part of the liquidation. Importantly, the proper name of
a company may be established by a search of ASIC’s register. It
32
Ch 4: Parties and Joinder 33
must also be noted that the proper description of a company

under the Act must include the ACN number: s 148.
Alternatively, non-
profit associations may be incorporated
under the State incorporated association’s legislation, which
provides a similar register that may be searched. Incorporated
associations are the common legal entity for sporting clubs and
societies.
However, some corporations are constituted by an Act of
Parliament (commonly local authorities, government corpora-
tions and older charities and benevolent organisations such as
the RSPCA and Boy Scouts). In these cases the litigant must look
to the Act of parliament to determine the proper name of the
corporation and its capacities.

In proceedings against a company it will be necessary to
establish its incorporation as a fact: Moldex Ltd v Recon Ltd
[1948] VLR 59.
Unincorporated Associations
[4.30] Associations that are not incorporated present great
difficulties for the litigant. As an unincorporated association
is not a separate legal entity, it cannot sue or be sued in its
own name in the same way as a company. The relevant office
bearers or members may be identified and sued in some cases.
Alternatively, the court may allow a representative action to be
brought. Usually a common interest on the part of the mem-
bers must be established, and some proprietary right to found
a cause of action: Cameron v Hogan (1934) 51 CLR 358. In
cases seeking declaratory relief the appropriate defendants
may include the current office bearers who are capable of giv-
ing effect to orders of the court: Atkinson v Lamont [1938] St
R Qd 33.
South Australia (r 87) and Tasmania (r 319), however, have
specific rules to facilitate such actions being brought in the
name of the association.
34 Civil Procedure
Partnerships
[4.40] Proceedings involving a partnership can be brought
against the partners named as joint defendants, or in the name
of the partnership (although the New South Wales Law Reform
Commission has suggested that it is preferable to name part-
ners individually to avoid problems with the requirement
to name the partnership precisely –LRC Report on Supreme
Court Procedure). Partners may sue in the firm name as plain-
tiffs (other than in New South Wales).
Machinery provisions exist in the various court rules for forc-
ing parties to identify all of the persons alleged to be partners
at the relevant time (when the cause of action arose). These
provisions should be applied in a manner that facilitates the due

and efficient conduct of the litigation: South Australia v Peat
Marwick Mitchell & Co (1997) 24 ACSR 231.
The Crown
[4.50] While the Crown is immune from suit at common law,
this position has been altered by statute. Each State has passed a
Crown Proceedings Act which allows for and regulates proceed-
ings against the Crown (the government). Similar provisions are
contained in the Judiciary Act 1903 (Cth) with respect to the
Commonwealth.
Relator Actions
[4.60] The Attorney-General is the only person that may sue to
compel a public duty to be performed, or restrain a public mis-
chief (such as a public nuisance). If an individual wishes to bring
an action of this type they must obtain the Attorney-General’s
fiat (permission) to bring a “relator action” (an action in the
Attorney-General’s name). The Attorney-General has an unfet-
tered discretion as to whether to give his or her fiat: Gouriet
v Union of Post Office Workers [1978] AC 435. This rule is
derived from the common law in Australia, rather than from
any limitation on the jurisdiction of the courts: Truth About

Motorways Pty Ltd v Macquarie Infrastructure Investment
Management Ltd (2000) 200 CLR 591.
Infants
[4.70] An infant, not being of full legal capacity, must sue by or
through a “next friend” and defend by a “guardian ad litem”.
A next friend has the conduct of the infant’s action, and will be
liable for any costs. Usually the next friend will be a parent or
close relative of the infant, but may be any person who has no
adverse interest in the proceedings. If an infant sues without a
next friend it is only an irregularity: it remains in the defend-
ants interest to ensure that a next friend be appointed as costs

will not be ordered against the infant and an infant will not be
bound by the judgment if a next friend is not appointed: Dey v
Victorian Railways Commissioners (1949) 78 CLR 62. A next
friend is liable for, but entitled to reimbursement of, solicitor’s
costs that are justly and properly incurred: Stephenson v Geiss
[1998] 1 Qd R 542.
Similarly, if an infant is to be sued, a “guardian ad litem” must
be appointed. The position of guardian ad litem may be occu-
pied by any person of full capacity. Usually a senior solicitor
from a firm with no other interest in the action is appointed.
The guardian ad litem is not liable for the costs of the proceed-
ings, but instead entitled to an indemnity for costs: Murray v
Kirkpatrick (1940) 57 WN (NSW) 162. Usually an infant is only
sued if an insurer stands behind them.
Parties under a Disability

[4.80] Persons under a disability, such as infirmity of mind or
mental illness, must generally sue by their guardian, or commit-
tee of the person (usually a public trustee established under the
legislation in the various States). If no guardian or committee
of the person has been appointed, they may sue by their next
friend.
36 Civil Procedure
Trustees
[4.90] The rules provide that trustees may sue on behalf of the
trust estate or be sued as representatives of the estate. It is not
necessary to join the beneficiaries. At common law, judgment
lies against the trustee who then has a right of indemnity from
the trust estate; creditors are not able to obtain direct access to
the trust estate: General Credits Ltd v Tawilla Pty Ltd [1984] 1
Qd R 388.
Agents
[4.100] An agent of a party will rarely be a proper party to sue.
If a person with a power of attorney is to sue on behalf of his or

her principal, the action ought to be brought in the name of the
principal. If an agent is to be sued as a defendant it must be on
the basis of a cause of action against the agent, not simply that
the agent represents the defendant: Campbell v Pye (1954) 54
SR (NSW) 308.
Deceased Persons
[4.110] An executor or administrator of the estate must be
appointed for the estate to bring an action that survives the
death of the original claimant. In cases where a party dies dur-
ing the course of the proceedings, the executor or administra-
tor will take the conduct of the proceedings. If no executor or
administrator comes forward, the court may continue in the
absence of the deceased or appoint a person to represent the
estate: in either case the estate will be bound by the judgment.
Representative Proceedings
[4.120] Representative proceedings are provided for in all
Australian jurisdictions: Carnie v Esanda Finance Corporation
Ltd (1995) 182 CLR 398.
In the Federal Court, New South Wales, South Australia and
Victoria there are also provisions for class actions, a more liberal
form of representative proceedings, to be brought in respect of

damages claims.
Representative Proceedings
[4.130] The rules governing representative proceedings devel-
oped in the Court of Chancery to facilitate cases involving
numerous persons with the same interest. There are three
requirements that must be met for a person to sue in a repre-
sentative capacity (The Duke of Bedford v Ellis [1901] AC 1):
1. a common interest;
2. a common grievance; and
3. relief beneficial to all parties represented by the party on
the record.
In Australia the nature of representative proceedings was con-
sidered in Carnie v Esanda Finance Corp Ltd (1995) 182 CLR
398 where the scope of representative proceedings was wid-
ened. The High Court found that a common interest may be
established by showing that those represented have a commu-
nity of interest in any substantial question of law or fact.
Carnie’s case takes the development of representative pro-
ceedings much closer to that of class actions, however as the
court pointed out, representative actions are not “class actions”.
Notably, however, the relief claimed in Carnie was a declaration,
and not damages for each member of the class which would have
required an individual assessment. As was pointed out by Mason
CJ, Deane and Dawson JJ, the rules relating to representative pro-
ceedings do not provide a clear framework for questions relat-
ing to the consent of members of the group, opting out of the
proceedings and settling or discontinuing proceedings. These
matters are addressed in the legislative schemes for class actions.
In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006)
229 CLR 386, the High Court held by majority, that “numerous
persons” with the “same interest” in a proceeding must be capa-
ble of identification at the commencement of the representative
proceedings.
38 Civil Procedure
Leave of the court is not required to commence represent-

ative proceedings, simply the consent of the plaintiffs to be
represented: Cameron v National Mutual Life Association of
Australasia Ltd (No 2) [1992] 1 Qd R 133. However, leave ought
to be sought prior to commencing proceedings against repre-
sentative defendants: Cameron v Hogan (1934) 51 CLR 358.
Class Actions
[4.140] In the Federal Court, New South Wales, and Victoria
there are legislative schemes providing for class actions: Pt IVA of
the Federal Court of Australia Act 1976 (Cth); Civil Procedure
Act 2005 (NSW), Pt 10; and Supreme Court Act 1986 (Vic), Pt 4A.
In South Australia, representative actions may be commenced
with or without leave of the court by a group representative

where there exists a common interest, or question of law or
fact: Supreme Court Rules 2006 (SA), ss 80-81.
To enliven the Federal Court, New South Wales and Victorian
class action provisions, seven or more persons must have claims
arising out of similar or related circumstances against the same
respondent (defendant). Thus cases involving separate assess-
ments of damages for each member of the class or separate acts
or omissions, may be brought as a class action if there are suf-
ficient common issues of fact or law. Thus members of a ref-
ugee group who had all been denied an oral hearing by the
Minister’s delegate satisfied the test: Zhang De Yong v Minister
for Immigration (1993) 45 FCR 384.
The Act makes provisions for establishing a sub-group if the
decision on the common issue will not determine all of the
issues necessary for all members. This avoids the potential dif-
ficulty created by applying the Port of Melbourne Authority v
Anshun Pty Ltd (1981) 147 CLR 589 style estoppel to all mem-
bers of a class in a class action.
Identification of the “class” is necessary, however this may
be done without listing each member by name or specifying
the precise number of members of the class: Federal Court of
Australia Act 1976 (Cth), s 33H. In some cases the identification
of the class may only be achieved by discovery of documents held

by the defendant. Each member of a group must have a claim
against the defendant or all defendants; this condition was not
met in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229. In
Philip Morris, a proceeding was brought against three tobacco
companies in essence alleging that the companies had caused
members to smoke when the companies were aware of the dan-
gers of smoking. The statement of claim was struck out for failing
to show a cause of action by every group member against every
defendant. The Full Federal Court found it insufficient to allege
that the conduct of one defendant may have caused a group
member to smoke the tobacco products of another defendant.
The claims of each member do not, however, need not be for the
same relief, and need not be based on the same conduct of the
defendant, but can arise out of the same, similar or related cir-
cumstances that give rise to a common issue of law or fact: King v
GIO Australia Holdings Ltd (2000) 100 FCR 209.
The court has power to set a date by which any member who
wishes to opt-out of the proceedings must do so. Generally
consent is not required from group members, unless the class
includes governments or their public officers in their official
capacity.
The court maintains much control over the conduct of the
proceedings, such as whether members of the group are able to
opt-out and the creation and representation of sub-groups. Any
settlement must be sanctioned by the court. It has been contem-
plated that while settlement approval must be given by the court
to settle the whole of the representative proceedings, individual
offers of settlement may be made directly to group members,
achieving the same result by circumventing the need for leave
of the court: King v AG Australia Holdings Ltd (2002) 121 FCR
480. The court may restrain any unfair or misleading conduct in
the making of individual offers of settlement: Courtney v Medtel
Pty Ltd (2002) 122 FCR 168.
Costs issues remain difficult in representative proceedings,
particularly in cases where the class action is unsuccessful.
40 Civil Procedure
Section 43 of the Federal Court of Australia Act 1976 (Cth)

permits costs to be awarded against the representative plaintiff
only; not against the other members of the group. The Act gives
the Court a very wide discretion with regards to costs, which
may be used to limit the costs that can be awarded against an
unsuccessful representative in appropriate cases: Woodlands v
Permanent Trustee Co Ltd (1995) 58 FCR 139.
The Federal Court (Merkel J) considered a “no win, no
fee” costs agreement in Johnson Tiles Pty Ltd v Esso Australia
Ltd (1999) FCR 167, and declined to approve it, troubled in
part by a premium of 25% added to fees if the proceeding was
successful.
The court may order security for costs against a representa-

tive plaintiff. In Madgwick v Kelly (2013) 212 FCR 1 at [7]‌, the
Full Federal Court outlined the discretionary factors that should
be considered by the Court in directing security for costs in a
class action.
Anonymous Parties
[4.150] As a general rule, a plaintiff must be named in the orig-
inating proceedings. In A v Hayden (1984) 156 CLR 532, the
plaintiff sued anonymously with respect to the security services
raid on the Sheraton Hotel in Melbourne and no issue was
taken by the defendant. However in neither Re Former Officer
of ASIO [1987] VR 875 nor J v L & A Services Pty Ltd [1995] 2
Qd R 10 (the Queensland AIDS case), was leave granted to sue
anonymously. In both cases, the courts were of the view that
anonymity was not essential to the practical utility of the pro-
ceedings, such as in blackmail or confidential information cases.
A strong case will be required before anonymity will be allowed.
Joinder
[4.160] Often a case will involve more than one plaintiff or
defendant and more than one cause of action. Rules have
developed as to the appropriateness of joining various parties

and causes of action so as to ensure that all proper and neces-
sary parties are able to be joined.
There are clear advantages to disposing of all related pro-
ceedings in one action. There may be different verdicts (or
findings of fact) if the same issue is litigated twice, such as
between the plaintiff and defendant and the defendant and a
third party: for example, where the plaintiff sues for a defective
swimming pool and the defendant joins the manufacturer –if
the two causes of action are not heard together the plaintiff may
succeed against the defendant on the basis of a defective pool
shell, yet the defendant later fail on this allegation against the
third party. In addition to the logical inconsistencies that may

flow from a multiplicity of actions, there are clear cost benefits
in dealing with the whole of the matter in the one set of pro-
ceedings. However, rules must be in place to maintain control
of proceedings lest so many parties and issues be joined making
the litigation unwieldy and oppressive. It is this balance that the
rules of joinder of parties and causes of action seek to establish.
Questions of joinder will usually involve not only the join-
der of the parties, but also the causes of action, and thus both
tests must be satisfied. In Chapter 1 Fundamental Principles,
the impact of the High Court decision in Port of Melbourne
Authority v Anshun (1981) 147 CLR 589 is discussed. In short, it
is that a party will be estopped from bringing any further action
that arises out of the same subject matter as an earlier action.
Anshun estoppel can therefore be seen as the consequence of a
failure to utilise the joinder rules to their full extent.
In all cases of joinder, whether simply of causes of action
or also of parties, the court retains discretion to sever the
joinder if it is in the interests of justice to do so, as is often
considered in cases involving fraud or deceit. For example, in
Queensland Estates Pty Ltd v Co-Ownership Land Development
Pty Ltd [1971] Qd R 164, claims against the first two defend-
ants in deceit were severed from the plaintiff ’s claim against its
solicitor who handled the transaction giving rise to the claims
42 Civil Procedure
against the first two defendants as: (1) the only common ques-
tion was the plaintiff ’s damages; and (2) the evidence of deceit
against the first two defendants was not admissible against the
solicitor and likely to be highly prejudicial.
There are effectively five situations that arise. In many cases,
there is a combination of the five situations, such as situation 1
coupled with 2:
1. joinder of plaintiffs or defendants where they are liable or
entitled to a remedy, jointly, severally or in the alternative,
but with respect to one cause of action;
2. joinder of causes of action between one plaintiff and one
defendant;
3. joinder of separate plaintiffs and defendants with their

respective causes;
4. joinder of defendants when one or more plaintiff has sepa-
rate causes of action against one or more defendant; and
5. joinder of necessary parties.
These situations will be discussed individually.
1. Joinder of Joint, Several or Alternative Parties

[4.170] The plaintiff may join all persons against whom the
plaintiff claims relief, whether it be jointly, severally or in the
alternative. Joint venturers, partners and other groups who
have effectively joint or several rights may all be joined as plain-
tiffs or defendants. Importantly, in cases involving joint contrac-
tors all must be joined or the action will be seen as improperly
constituted, and the defendant may obtain a stay of proceed-
ings: Australian Securities Ltd v Western Australian Insurance
Co Ltd (1929) SR (NSW) 571.
There is generally much merit in joining all possible defend-
ants to avoid bringing separate proceedings against each and
failing against each. On a tactical level, if all possible defendants
are joined, often each defendant will tend to run a case designed
to show that another defendant is liable. The rules also provide
for alternative plaintiffs if there is some issue as to the proper

plaintiff, for example in some commercial litigation it may not
be certain which legal entity actually entered into a transaction.
2. Joinder of Causes of Action between One

Plaintiff and One Defendant
[4.180] The rules provide for all causes of action to be joined
by a plaintiff against a defendant, whether the parties are suing
or being sued in their personal capacity or some other capac-
ity. This is the simplest form of the joinder rule. However, the
court retains control over this form of joinder and may sever the
causes of action if justice requires it.
3. Joinder of Separate Plaintiffs and Their

Respective Causes
[4.190] Persons may be joined as plaintiffs where their right to
relief arises out of the “same transaction or series of transac-
tions” provided that some “common question of law or fact”
will arise.
Thus, in Bendir v Anson [1936] 3 All ER 326 the plaintiffs
were not properly joined. One pair of plaintiffs owned a build-
ing at No 4 Old Burlington Street, Westminster and the other
pair of plaintiffs owned the building at No 6. All of the plain-
tiffs sued the defendant for erecting a building on the other
side of the street that interfered with their “ancient lights”. The
court found that although the erection of the building satisfied
the test of being “one transaction”, the case did not involve a
common question of fact or law. The court noted that the facts
showed whether there was interference that would be different
for each building (as each was in a slightly different location)
and that the law in the area was sufficiently settled for there to
be no real question of law to determine.
Similarly in Payne v Young (1980) 145 CLR 609 the court
found that numerous plaintiffs were not properly joined. Payne
and seven others claimed monies paid under regulations levying
44 Civil Procedure
meat inspection fees which they alleged were invalid. The plain-
tiffs had each paid a different government authority the fees,
which were collectable by State authorities and local authori-
ties. The court found that there was no transaction that all of the
plaintiffs were a party to, and that although each plaintiff had a
series of transactions with each defendant, no two plaintiffs had
transactions with the same defendant. Thus the plaintiffs failed
to show that they were suing on the same transaction or series
of transactions. However, the claim for a declaration (without
the money claim) was found to be a right to relief that does not
arise out of any transaction and therefore the plaintiffs could be
joined for the declaration but not the money claims.
A similar result eventuated in Dean-Willocks v Air Transit

International Pty Ltd (2002) 55 NSWLR 64. A company liqui-
dator had sought to join a series of both plaintiff and defend-
ant companies, the only connecting factor being an allegation
of a series of preferential payments by the proposed parties.
However, it was held (Austin J) that the transactions concerned
did not arise out of the same transaction or series of transactions.
4. Joinder of Defendants and Causes of Action

by One or More Plaintiff
[4.200] The rules relating to the joinder of causes of action
generally appear confusing. The rules provide a general right
to join several causes of action in the one action. Claims by
plaintiffs jointly may also be joined with claims by any of them
separately against the same defendant. However, these general
rights of joinder must be read subject to the general restriction
applicable to the joinder of plaintiffs, that is, that the causes of
action must involve a common question of law or fact: Birtles v
Commonwealth (1960) VR 247.
In some jurisdictions the rules provide two significant restric-
tions upon joinder of causes:
(1) where there are claims against several defendants for
wrongs committed severally; and
(2) where there are claims against several defendants for a

joint wrong with a claim for a separate wrong committed
by one or more of the defendants.
However these rules have been held not to limit the joinder of
causes of action for wrongs that arise out of the same transac-
tion, or a series of transactions involving a common question of
law or fact. In most jurisdictions, the rules provide that the court
has discretion to give leave for defendants to be joined: Federal
Court Rules 2011 (Cth), r 9.02; State Court Rules –(ACT), r 211;
(NSW), r 6.19; (NT), r 9.02; (Qld), r 65; (SA), r 73; (Tas), r 176;
(Vic), r 9.02; (WA), O 18, r 4.
An example of a permissible joinder of defendants occurred
in Birtles v Commonwealth (1960) VR 247 where the plaintiff

sued the Commonwealth for personal injuries, and as a result
of the Commonwealth’s plea that there was a statutory bar, sued
his former solicitors for negligence. The court viewed the work-
place accident and the involvement of the first solicitors as the
one transaction or series of transactions and allowed the join-
der. Despite this, convenience alone is not a sufficient basis to
justify joining an additional defendant. In a professional negli-
gence case, the Queensland Court of Appeal refused to add an
insurer as co-defendant for purposes of allowing the plaintiff
to apply for a declaration that the insurer was liable to satisfy
any judgment for the plaintiff: Interchase Corp Ltd (in liq) v FAI
General Insurance Co Ltd [2000] 2 Qd R 301. The court held
that the presence of the insurer was not necessary to resolve
the questions of negligence, and the scope of the policy would
become relevant only when judgment was given for the plain-
tiff and a claim made, which was too remote a contingency to
justify joinder.
Similarly in Dingle v MR Hornibrook Pty Ltd [1949] St R
Qd 176, a plaintiff succeeded in joining both Hornibrook Pty
Ltd and a local authority for damage caused by a power surge,
resulting either from Hornibrook Pty Ltd negligently bringing
down the lines, or the local authority negligently restoring
supply.
46 Civil Procedure
As stated by Hart J in Black v Houghton [1968] Qd R

179: “[w]‌hen a plaintiff wishes to add a party in order to avoid
falling between two stools it is fairly clear that the rule should
be construed liberally”. In this case, Hart J allowed a plaintiff
who sued the Mayor of Redcliffe for defamation to join a news-
paper after the Mayor denied publication. However, in defama-
tion cases the terms “same transaction or series of transactions”
will be read as meaning the same “publication or series of pub-
lications”: Smith v Foley [1912] VLR 314. Joinder is often a dif-
ficult issue in defamation cases and should be considered very
carefully.
5. Joinder of Necessary Parties

[4.210] The rules provide for the joinder of parties whose pres-
ence is necessary in order to effectually and completely resolve
all of the questions involved in the proceedings.
A commercial or indirect interest in the proceedings will not
be enough to support the joinder –the party must have a direct
legal interest. Thus joinder was allowed in Amon v Raphael
Tuck & Sons Ltd [1956] 1 QB 357 where the plaintiff claimed to
be an inventor of a pen of special design that the defendant was
manufacturing. A third person, Dachinger, alleged that he was
the designer and that the defendants were under a contractual
obligation to Dachinger to manufacture and distribute the pen.
Devlin J considered that the object of the rule was to replace
the pre Judicature Acts plea of abatement, hence if a plea of
abatement would have been available prior to the Judicature
Acts, if the party were not joined, then the party could be joined
under the rules.
In Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR
34, the power to join parties was construed more liberally. The
court concluded that the phrase “all matters in issue in the pro-
ceedings” was not to be limited to matters arising on the existing
pleadings but extended to ancillary or preliminary questions, as
well. However, in Qantas the court distinguished Amon’s case
on the basis that in Amon, the plaintiff objected to the joinder.
Different considerations are taken into account when joinder is

sought by way of a plaintiff ’s application, than when a defendant
applies to add a co-defendant over a plaintiff ’s objection: Qantas
Airways Ltd v AF Little Pty Ltd at [38].
Interpleader
[4.220] The rules make provision for cases where the defendant
holds money or property claimed by more than one party; for
example, where a storage company holds furniture claimed by
both husband and wife after they have become estranged. In
this situation, if an action is brought, the defendant may “inter-
plead” where the defendant has no interest in the subject matter

of the action, to allow the plaintiff and other claimants to litigate
the issue without further involvement of the defendant: Wilson
v Grace Bros Pty Ltd (1948) 66 WN (NSW) 21.
However, the interpleader process is not available where
the defendant may be liable to both parties, for example where
two estate agents claim a right to commission under separate
contracts with the defendant: LJ Hooker Pty Ltd v Dominion
Factors Pty Ltd [1963] NSWR 573.
5
Limitation Periods
Introduction
[5.10] The law of limitations is a creature of statutory invention,
first introduced in England by the Limitation of Actions Act
1623 (Imp). All States and Territories now have limitations of
actions legislation in place. The effect of the legislation is to

provide a time limit on bringing proceedings after the cause of
action arises. This is commonly 6 years for contract and tort,
and in some States and Territories 3 years if the claim includes
damages for personal injuries. All of the States and Territories
have now enacted legislation deeming limitation periods part
of the substantive law of the State or Territory so that in cases
brought in States or Territories with different limitation periods
to the State or Territory where the cause of action arose, the
limitation period in the State or Territory where the cause arose
will be applied.
There are a number of important rationales for limitation
periods, as set out in Brisbane South Regional Health Authority
v Taylor (1996) 186 CLR 541, per McHugh J:
First, as time goes by, the 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 signifi-
cant interest in knowing that they have no liability beyond a defi-
nite period. … The final rationale for limitation periods is that
the public interest requires that disputes be settled as quickly as
possible.
48
Ch 5: Limitation Periods 49
The most important principle supporting the rationale behind

limitations periods is the concept that there should be an end to
litigation, or the prospect of litigation, for all potential parties.
Common Limitation Periods

[5.20] The limitation periods for various causes of action are set
out in the respective State and Territory Acts. In all States and
Territories except NT, the limitation period for claims in tort and
contract is 6 years, unless the claim includes damages for per-
sonal injuries when it is then 3 years. In the NT, the limitation
period for tort and contract claims, as well as personal injury
claims, is 3 years.
There are many other specific periods of limitation set out in
the various enactments. Relevantly, these enactments are:
• Limitation Act 1985 (ACT);
• Limitation Act 1969 (NSW);
• Limitation Act 1981 (NT);
• Limitation of Actions Act 1974 (Qld);
• Limitation of Actions Act 1936 (SA);
• Limitation Act 1974 (Tas);
• Limitation of Actions Act 1958 (Vic);
• Limitation Act 1935 (WA) (before 15/11/2005); and
• Limitation Act 2005 (WA) (on or after 15/11/2005).
It appears that claims for loss of consortium will fall within the
definition of a claim for damages for personal injury: Opperman
v Opperman [1975] Qd R 345. However, an action for damages
for personal injury does not include a claim by a defendant for
contribution or indemnity by another defendant as this is a stat-
utory right, and therefore is not subject to the lesser limitation
period applying to claims for damages for personal injuries as it
is a statutory claim: State Government Insurance Office (Qld) v
Crittenden (1966) 117 CLR 412. The following time periods are
50 Civil Procedure
applicable to an action for contribution and indemnity between

tortfeasors:
• Australian Capital Territory, New South Wales, Northern
Territory, and Queensland –Two years of the date the action
accrues to the tortfeasor, or within four years of the date the
limitation period, or any extension thereof, for the princi-
pal cause of action expires (if this later period would expire
first): Limitation Act 1985 (ACT), s 21(1); Limitation Act
1969 (NSW), s 26(1); Limitation Act 1981 (NT), s 24(1);
Limitation of Actions Act 1974 (Qld), s 40(1).
• South Australia –Whichever of the following periods is
longer:
(1) within the period that the person who suffered the harm
could have brought the action against the person from
who contribution is sought (Limitation of Actions Act
1936 (SA), s 35(c)); or
(2) two years after the damages payable by the person
entitled to contribution are determined: Law Reform
(Contributory Negligence and Apportionment of
Liability) Act 2001 (SA), s 6(4).
• Tasmania –Within one year after service of the writ in the
original action on the tortfeasor: Limitation Act 1974 (Tas),
s 7; Wrongs Act 1954 (Tas), s 3(5).
• Victoria –Whichever of the following periods is longer:
(1) within the period in which the action against the tort-
feasor could be commenced (Limitation of Actions Act
1958 (Vic), s (5)(1)(a)); or
(2) one year after the writ was served on the tortfea-
sor: Wrongs Act 1958 (Vic), s 24(4)(a).
• Western Australia –If the cause of action accrues on or after
the 15th November 2005, an action for contribution cannot
be commenced if two years have elapsed since the cause of
action accrued: Limitation Act 2005 (WA), s 17.
[5.30] There is no Commonwealth Limitation of Actions Act
setting time limits for claims. To the extent that common law
claims are litigated in the High Court or Federal Court, the State
or Territory periods appear to apply as a result of the Judiciary
Act 1903 (Cth). The High Court, in John Pfeiffer Pty Ltd v
Rogerson (2000) 203 CLR 503, held that limitation rules were,
for purposes of applying choice of law rules, to be considered
substantive. Many Commonwealth statutes have their own limi-
tation periods; accordingly, resort to the State or Territory Act is
often not necessary or permissible.
Under the Competition and Consumer Act 2010 (Cth)
(“CCA”) (formerly the Trade Practices Act 1974 (Cth)) there are
limitation periods for some claims, for example the 6 year limi-
tation period applying to consumer protection matters.1 Some
rights under the CCA have no limitation period, such as the

obtaining of an injunction. As the CCA provides its own limita-
tion scheme, there is no room for resort to the State or Territory
legislation.
The Family Law Act 1975 (Cth) provides for a limitation
period of one year from the date of divorce for bringing pro-
ceedings for property, or for de facto relationships, a period of
two years after the end of the de facto relationship.
The Limitation Acts provide for differing periods during
which an action to enforce a judgment of the court may be
brought. The Acts do not define the meaning of judgment,
however, it is not to be given a restricted meaning: Handford,
Limitation of Actions: The Laws of Australia (3rd ed, Lawbook
Co., Sydney, 2011); Jay v Johnstone [1893] 1 QB 189.
The applicable periods for action on a judgment are as
follows:
• Australian Capital Territory, New South Wales, Northern
Territory, Queensland and Tasmania –cannot be brought
more than 12 years after the date the judgment became
enforceable: Limitation Act 1985 (ACT), s 14(1); Limitation
1. Competition and Consumer Act 2010 (Cth), Schedule 2, s 236.

52 Civil Procedure
Act 1969 (NSW), s 17(1); Limitation Act 1981 (NT), s 15(1);

Limitation of Actions Act 1974 (Qld), s 10(4); Limitation Act
1974 (Tas), s 4(4).
• Victoria –more than 15 years from the date on which the
judgment became enforceable: Limitation of Actions Act
1958 (Vic), s 5(4).
• South Australia –cannot be brought more than 15 years
from the recovery of the judgment: Limitation of Actions Act
1936 (SA), s 34.
• Western Australia –for causes of action arising on or after
15th November 2005, 6 years from when the cause of action
accrued: Limitation Act 2005 (WA), s 13(1). This period was
12 years under the previous limitations legislation: Limitation

Act 1935 (WA), s 32(1).
There are many specific periods for actions relating to real
property, depending upon the type of claim (eg to recover land,
for adverse possession, future interests in freehold land, actions
by mortgagees, etc.). The rules applicable in the relevant juris-
diction should be examined carefully in this regard.
Following the enactment of uniform defamation laws in 2005
and 2006, the applicable limitations period in all jurisdictions
for defamation is one year since the publication. The court may
grant leave in circumstances where it would not have been rea-
sonable to commence within one year of publication. However,
an action cannot be commenced if three years have elapsed
since the publication: Limitation Act 1985 (ACT), s 21B(1), (2);
Limitation Act 1969 (NSW), ss 14B, 56A; Limitation Act 1981
(NT), ss 12(1A), 44A; Limitation of Actions Act 1974 (Qld),
ss 10AA, 32A; Limitation of Actions Act 1936 (SA), s 37(1), (2);
Defamation Act 2005 (Tas), s 20A(1), (2); Limitation of Actions
Act 1958 (Vic), ss 51(1AAA), 23B; Limitation Act 2005 (WA),
ss 15, 40.
There are few limitation periods relating to equitable claims,
however the doctrine of equity will often apply a limitation by
analogy: Knox v Gye (1872) LR 5 HL 656. Additionally, equi-
table claims may be rejected under the doctrines of laches
and acquiescence: Orr v Ford (1989) 167 CLR 316; Lindsay

Petroleum Co v Hurd (1874) 5 PC 221.
Calculating Time
[5.40] The calculation of time is essential to properly determin-
ing when a limitation period expires. This requires a consid-
eration of when time commences to run and when time will
expire.
When Time Starts to Run

[5.50] Time commences to run when the cause of action accrues.

A cause of action accrues when all of the elements necessary for
the cause of action are present. Hence, negligence actions will
accrue on the suffering of damage. In some situations, however,
this is a difficult issue to determine.
In a case involving a loan repayable on demand, the cause of
action accrues on the date that the money is loaned, not on the
date of the demand for repayment. This is because there is no
necessity for a demand to be made before suit for the sum out-
standing: Haller v Ayre [2005] Qd R 410; Ogilvie v Adams [1981]
VR 1041. Note that in Western Australia, the Limitation Act 2005
(WA) provides that a cause of action for repayment of debt accrues
at the time of failure to comply with a demand for repayment.
In Gillespie v Elliot [1987] 2 Qd R 509, the court consid-
ered when damage occurred in a case involving a solicitor’s
negligence in the purchase of a hotel business. As a result of
the negligence of the solicitors, the purchaser was unable to
on-sell as the subsequent prospective purchaser concluded that
the options in the lease were so uncertain as to be unenforce-
able. The Queensland Court of Appeal found that damage had
occurred at the time of buying the business as the purchaser
did not receive a lease with an enforceable option, rather than
at the time that the subsequent purchaser refused to buy. The
court found that the knowledge of the purchaser was not an
54 Civil Procedure
ingredient of the cause of action or necessary for time to com-

mence to run.
In Hawkins v Clayton (1988) 164 CLR 539, the High Court
had to consider the negligence of a solicitor who held a will but
took no steps to locate and inform the executor of the will until
many years had passed since the testator’s death. The testator
passed away in 1975 and the executor was not notified until
1981. The majority held that the cause of action accrued on the
appointment of the executor in 1981 as it was only at this time
that there was a plaintiff capable of suing. Deane J, dissenting,
was of the view that time ought to commence when the effect of
the Act itself no longer precluded the bringing of proceedings.
Where a plaintiff sues on a contract of indemnity, time will

not commence to run until the contingency upon which the
indemnity operates is fulfilled. This is because until the con-
tingency is fulfilled the plaintiff is only at risk of loss and was
not liable to make any payment under the indemnity: Wardley
Australia Ltd v Western Australia (1992) 175 CLR 514.
Disabilities
[5.60] Under the State and Territory Acts, time will not com-
mence to run against plaintiffs under a disability at the time
of the accrual of the cause of action, until they are no longer
under the disability. In the case of infants, the disability of age
ceases on attaining 18 years under the relevant Age of Majority
Act. In NSW and Tas, if a child or person under a disability
has a capable parent or guardian, a three year “discoverabil-
ity date” applies, meaning that the limitation period starts to
toll at the time when the capable parent or guardian is taken
to have known, or should have known, of the facts leading to
the claim: Limitation Act 1969 (NSW), s 50F(1); Limitation Act
1974 (Tas), s 26. In Vic, similar provisions apply, however, a six
year period applies to the discoverability date: Limitation of
Actions Act 1958 (Vic), s 27E.
In Qld, in the case of those of suffering from mental disa-
bilities, including persons of unsound mind (in actions other
than for death and personal injury), if the plaintiff was under a
disability on the date when a right of action accrued, the action
may be brought within six years of the date when the plaintiff
ceased to be disabled or died, notwithstanding that the limita-
tion period has expired: Limitation of Actions Act 1974 (Qld),
s 29(2). The period is three years for personal injury: Limitation
of Actions Act 1974 (Qld), s 29(2)(c).
In the ACT, NT and SA, the Limitation Acts suspend the run-
ning of the applicable limitation period for the duration of the
disability: Limitation Act 1985 (ACT), s 30; Limitation Act 1981
(NT), s 36; Limitation of Actions Act 1936 (SA), s 45. With chil-
dren in SA, s 45A of the Limitation of Actions Act 1936 (SA)
requires notice of an intended action to be given by, or on

behalf of the child, within 6 years after the relevant date the
defendant is alleged to be liable in damages.
In Western Australia, special disability provisions apply
under the Limitation Act 2005 (WA). In general terms, these
provisions address guardianship issues with minors, and impor-
tantly, assume that minors and persons with mental disabilities
will have a parent or guardian who can make decisions on their
behalf, thus making extensions unnecessary.
The extent of disability of the mind includes a lack of capac-
ity to properly instruct a solicitor, exercise reasonable judgment
upon a possible settlement, and to appreciate the nature and
extent of any available claim: King v Coupland [1981] Qd R 121.
The onus of proof in establishing that a limitations period has
been extended rests with the plaintiff: Mulcahy v Curramore
Pty Ltd [1974] 2 NSWLR 464.
Fraud and Mistake

[5.70] In Qld, Vic and Tas, time will not commence to run if the
cause of action is based upon fraud, or concealed by fraud, until
the plaintiff has discovered the fraud, or could have discovered
it by reasonable diligence. In NSW and the NT, these provisions
also apply where the identity of a potential defendant against
whom a cause of action lies is fraudulently concealed.
56 Civil Procedure
In the ACT, deliberate concealment, not simply equitable

fraud, must be shown. In SA and WA, there is no postponement
for fraud at law, however the old rules as to equitable fraud
apply and time will run in equity from the discovery of the fraud.
In all jurisdictions except SA and WA (where the cause of
action in WA accrued before 15 November 2005), the commence-
ment of the limitation period for actions for relief from the conse-
quences of mistake runs from when the mistake is or should have
been discovered. In SA and WA (where the cause of action in WA
accrued before 15 November 2005) there is no postponement of
the limitation period in common law claims, however in equita-
ble claims time runs from the discovery of the mistake.
In Western Australia, fraud does not postpone the running of

the limitation period, rather, it is dealt with by way of extension.
The court may extend the limitation period by up to three years
in cases where fraud and improper conduct is an issue and the
cause of action arose on or after 15 November 2005: Limitation
Act 2005 (WA), s 38(2).
When Time Runs Out

[5.80] Time runs out after the expiration of the relevant lim-
itation period. To calculate the precise date, regard must be
had to the relevant Acts Interpretation Act. In all States and
Territories, time is calculated by excluding the date when the
event occurred that completes a cause of action. Thus, if a cause
of action accrues on 12 February, three years will not expire at
the end of 11 February, but at the end of 12 February: Gscheidle
v Gscheidle [1990] 2 Qd R 54.
If time expires on a non-business day, the plaintiff generally
has until the end of the following business day as a result of the
calculation of time provisions in the Acts Interpretation Acts.
For example, in Price v JF Thompson (Qld) Pty Ltd [1990] 1
Qd R 278, the court found that the limitation period did not
expire until the end of the Monday following a Saturday when
the three years expired.
Extension of Limitation Periods

Acknowledgement
[5.90] An acknowledgement or part payment will generally have
the effect of allowing the limitation period to commence run-
ning again; “the right [of action is] given a notional birthday
and on that day, like a phoenix of fable, it rises again in renewed
youth –and also like the phoenix it is still itself ”: Busch v
Stevens [1963] 1 QB 1.
An acknowledgment is simply an express or implied admis-
sion of the existence of the right that is claimed. An implied
admission may be found where the debt is listed in a company’s
balance sheets as an outstanding liability: The Stage Club Ltd v

Millers Hotels Pty Ltd (1981) 150 CLR 535.
Latent Damage
[5.100] The law relating to latent damage and limitation periods
remains confused and difficult. In Pirelli General Cable Works
Ltd v Oscar Faber & Partners (a firm) [1983] 1 All ER 65, the
House of Lords held that a cause of action for defective building
accrues on the occurrence of physical damage, whether or not
it was reasonably discoverable. The High Court considered the
issue twice; in Hawkins v Clayton (1988) 164 CLR 539 and in
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
However, both cases involved relatively unusual factual circum-
stances and neither case has settled the law in this area.
In 2014, the High Court again considered the issue of latent
damage, in Brookfield Multiplex Ltd v Owners Corporation
Strata Plan 61288 [2014] HCA 36. The High Court held that
the contractor under a “design and construct” contract did not
owe a duty of care in tort to the body corporate of a strata
title scheme to avoid pure economic loss occasioned by latent
defect in the property’s common areas, which the contractor
had built.
58 Civil Procedure
In the ACT, the NT and SA, the Limitation Acts give the court
a general discretion to extend the limitation period in cases of
economic loss and property damage for a further period of up
to 15 years from the date of the act or omission giving rise to the
cause of action. In the ACT, the court must consider a number
of specific factors set out in the Act. In the NT and SA, the exten-
sion must be just and reasonable in all the circumstances and
the action must be commenced within 12 months of the plain-
tiff ascertaining the material facts, or the failure to commence
the action within the limitation was caused by representations
and conduct of the defendant.
Personal Injury
[5.110] Extensions of personal injury limitation periods have
been dramatically affected by tort reform in Australia. Each State
and Territory provision is different and must be considered sep-
arately. The following general principles apply:
• Australian Capital Territory –Before 9/ 9/2003, could
be extended for any period that was just and reasona-
ble: Limitation Act 1985 (ACT), s 36. After 9/9/2003, the leg-
islation does not contain an extension provision.
• New South Wales –After 6/12/2002, if a 12 year limitation
period applies, up to 3 years from date of discoverabil-
ity. If a 3 year limitation period applies, there is no exten-
sion: Limitation Act 1969 (NSW), s 62A.
• Tasmania –After 1/ 1/
2005, if a 12 year limitation period
applies, up to 3 years from date of discoverability. If a 3 year
limitation period applies, there is no extension: Limitation
Act 1974 (Tas), s 5A(5).
• Northern Territory –If material facts are not ascertained
until 12 months before the end of the limitation period, or
after the end of the period, or due to conduct of the defend-
ant, and it is just to grant extension, any period: Limitation
Act 1981 (NT), s 44.
• South Australia –If material facts are not ascertained until

12 months before the end of the limitation period or after the
end of period, or due to conduct of the defendant, and it is
just to grant extension, any period: Limitation of Actions Act
1936 (SA), s 48.
• Queensland –One year after material facts of decisive char-
acter are within plaintiff ’s means of knowledge: Limitation of
Actions Act 1974 (Qld), s 31(2); see Queensland v Stephenson
(2006) 226 CLR 197 on the issue of what is a material fact of
a decisive character.
• Victoria –After 1/10/2003, any period that is just and reason-
able: Limitation of Actions Act 1958 (Vic), s 27K.
• Western Australia –If the provisions of the Limitation Act

2005 (WA) apply, up to 3 years from when the plaintiff became
aware, or ought reasonably to have become aware, of the
physical cause of injury, or that the injury was attributable to
the defendant’s conduct, or of the defendant’s identity, if the
court is satisfied that when the limitation period expired, the
plaintiff was not aware of the matter in question: Limitation
Act 2005 (WA), s 39.
6
Commencing
Proceedings
Originating Proceedings
[6.10] In all jurisdictions, originating proceedings are distin-
guished from applications in pending proceedings (interlocu-

tory applications). In this chapter we consider the law applicable
to originating proceedings. Within this context, all jurisdictions
also differentiate between proceedings that involve disputed
issues of fact, and those that raise a question of law only. In gen-
eral terms, originating proceedings that involve disputed facts
will involve the process of pleadings and disclosure. Disputes
involving questions of law only are generally determined sum-
marily, following the filing of affidavits by the parties.
Federal Court
[6.20] In the Federal Court, all proceedings are commenced
with an application: Federal Court Rules 2011 (Cth), r 8.01. The
application must be supported by either pleadings or affidavits,
which disclose the nature of the claim and the material facts
upon which the application is based: Federal Court Rules 2011
(Cth), r 8.05. Pleadings must be used if there are significant dis-
putes of fact, and in cases involving fraud, misrepresentation,
breach of trust, wilful default, or undue influence. Affidavits are
suitable where the substantial dispute involves a question of
law; for example, a question about the appropriate construction
to be placed upon a section of an Act. This principle, as embod-
ied in the Federal Court Rules 2011 (Cth), is the fundamental
principle lying behind the modes of commencement utilised in
60
Ch 6: Commencing Proceedings 61
the other courts. That is, that there are different modes for com-
mencing proceedings dependent upon whether or not there is
a significant factual dispute.
Commencement of Proceedings in State

and Territory Courts
Australian Capital Territory
[6.30] In the Australian Capital Territory, the plaintiff chooses
the form of originating process, dependent upon the Court
Procedures Rules 2006 (ACT); either an “originating claim” or
“originating application”. Proceedings must be commenced by
way of originating claim, unless ACT law requires or permits the

proceeding to be commenced by originating application: Court
Procedures Rules 2006 (ACT), rr 31-33.
The plaintiff has the option of commencing by originating
application in circumstances where, for example, there are not
likely to be substantial disputes of fact; there is no opposing
party; the matter is urgent and there is insufficient time to pre-
pare an originating claim; the relief sought is a declaration; or
the matter involves the interpretation of legislation.
New South Wales

[6.40] The form of originating process in New South Wales is
a statement of claim, or a summons: Uniform Civil Procedure
Rules 2005 (NSW), r 6.2. Statements of claim are utilised in cir-
cumstances where there are disputed issues of fact, r 6.3. This
triggers the full pre-trial process of disclosure.
A summons is required in both commercial list and tech-
nology and construction list proceedings: Practice Note SC
Eq 3, Supreme Court Equity Division –Commercial List and
Technology and Construction List. Rule 6.4 of the Uniform Civil
Procedure Rules 2005 (NSW) requires that a range of other pro-
ceedings be commenced by way of summons, including matters
where there is no defendant, or a declaration of right is sought.
The summons procedure does not, unless the court orders
62 Civil Procedure
otherwise, lead to pleadings or oral trial, and is suitable in cir-

cumstances where there are not factual disputes: Uniform Civil
Procedure Rules 2005 (NSW), rr 14.1, 31.
Queensland
[6.50] In Queensland, r 9 of the Uniform Civil Procedure Rules
1999 (Qld) requires that a “claim” be used unless the rules
require or permit an “application”. A claim involves contested
issues of fact, and leads to the exchange of pleadings and disclo-
sure. A statement of claim must be attached to the claim: r 22.
Applications resolve questions of law in a summary fashion.
South Australia
[6.60] In South Australia, proceedings are called “actions”. The

term “primary action” refers to a proceeding commenced by
the plaintiff, while the term “secondary action” encompasses
proceedings brought by way of cross action and by third par-
ties: Supreme Court Civil Rules 2006 (SA), r 28.
A statement of claim must be attached to the originating pro-
cess, which is a summons: Supreme Court Civil Rules 2006 (SA),
r 34. In particular circumstances, the plaintiff may be exempted
from lodging pleadings (r 91) and in other cases, the rules
acknowledge that affidavits are preferable: r 96.
If the plaintiff intends to commence a primary action for
money, they must comply with r 33, which creates a condition
precedent to commencement requiring that the plaintiff make
an offer to settle to the defendant. The offer must be served
at least 90 days before commencement of the action and must
provide sufficient detail for the defendant to assess its position.
Tasmania
[6.70] The traditional English classification of distinguish-
ing between actions, causes and matters has been retained
in Tasmania. Actions in civil proceedings are commenced by
writ: Supreme Court Rules 2000 (Tas), r 5. Rule 88 sets out the
proceedings that are to be commenced by writ; r 89 sets out
Ch 6: Commencing Proceedings 63
the proceedings to be commenced by application, and r 90

sets out proceedings to be commenced by way of a chambers
application.
As in other jurisdictions, a proceeding commenced by appli-
cation is decided on the accompanying affidavits: r 458. If the
proceeding is commenced by writ, then pleadings, disclosure,
and oral evidence at trial will follow.
Western Australia
[6.80] Proceedings that involve factual disputes are commenced
by a writ of summons and lead to pleadings, disclosure and oral
evidence at trial. Disputes involving legal issues only are dealt
with summarily and are commenced by an originating sum-

mons, or by motion to the court.
A distinction is made between disputes involving opposing
parties, and disputes where there is no opposing party. Original
proceedings between disputing parties are called “causes”.
If the cause is commenced by way of writ of summons, it is
an “action”. Proceedings where relief is not sought against an
opposing party are referred to as “matters”. Section 4 of the
Supreme Court Act 1935 (WA) defines a “matter” as every pro-
ceeding in the court that is not in a “cause”.
Victoria and the Northern Territory

[6.90] In both Victoria and the Northern Territory, except where
circumstances provide otherwise, proceedings are commenced
by either writ (the usual course of events) or originating motion
(there is no defendant and the rules authorise same): Supreme
Court (General Civil Procedure) Rules 2005 (Vic), r 4.01;
Supreme Court Rules (NT), r 4.01. There is no distinction in
either jurisdiction between court and chambers; all business is
transacted in court: Supreme Court Act 1986 (Vic), s 4; Supreme
Court Act 1979 (NT), s 9A.
If a writ is used, it must contain an endorsement of the claim.
This can be a statement of claim, or an endorsement identifying
64 Civil Procedure
the nature and cause of the claim, as well as the relief sought. If
the endorsement is not identified on its face as a “statement of
claim”, the plaintiff must also serve the defendant with a “state-
ment of claim” identified as such, regardless of the level of detail
contained in the endorsement. The statement of claim, whether
issued with the writ or thereafter, must comply with the rules
for pleadings: Rules of the Supreme Court (Vic), O 13; Supreme
Court Rules (NT), O 13.
Endorsements
[6.100] Initiating proceedings must contain the names and
addresses of the parties, an address of the initiating party for
service (usually their solicitor’s office) and various endorse-

ments as to the need to respond and the consequences of fail-
ing to respond.
The purpose of the endorsement is to notify the defendant
of the nature of the case against them, and the relief sought.
Careful consideration needs to be given to the endorsement,
as it is not permissible for the statement of claim to plead a
different cause of action, unless leave is granted. This may be
complicated by the passing of limitations periods, making new
allegations statute barred. Further, if the endorsement is broad,
and the statement of claim narrow, the court may find that some
allegations that would have been encompassed by the original
endorsement have been abandoned: Renowden v McMullin
(1970) 123 CLR 584.
Where proceedings are initiated by Writ, the nature of the
claim and/or relief or remedy sought must also be endorsed
(see the discussion above relating to Victoria and the Northern
Territory).
The rules in each jurisdiction need to be carefully consid-
ered in this regard, as once it is no longer possible to amend
the endorsement, it defines (and therefore curtails) the causes
of action to be raised at trial.
7
Service and Appearance
Service
[7.10] Service is the jewel in the crown of court proceedings;
if done properly, it ensures that the defendant is aware of the
proceedings against them. There are two broad categories of
service: (1) personal service; and (2) ordinary service. Personal

service ensures that the defendant is aware of the originating
proceedings, by providing the originating documents to them
directly. With subsequent interlocutory proceedings, service is
normally effectuated by delivery of the documents to a nomi-
nated address for service. This is known as “ordinary service”.
If service is not done properly, it is considered “irregular”, and
may lead to a default judgment being set aside, or the passage
of an applicable time limitation.
Personal Service
[7.20] For personal service to be properly effected, there are a
number of elements that must be satisfied:
1. delivery of a copy of the writ or proceedings into the pos-
session of the defendant;
2. notification to the defendant of the nature of the docu-
ments being served (the person need not be informed
orally if the nature of the document is clear on its fact (Re
Elkateb (2001) 187 ALR 479));
3. making the original available for inspection, if required; and
4. in most jurisdictions, endorsement of the details of service
on the original document or by affidavit within a limited
period.
65
66 Civil Procedure
Difficulties occur when the defendant will not accept delivery

of the documents, in which case it is permissible to leave them
in front of the defendant or in a place to which the defend-
ant has unimpeded access, if the defendant refuses to take the
documents. Thus, service by pushing the documents under a
door that the defendant will not open is sufficient. In Ainsworth
v Redd (1990) 19 NSWLR 78, the document was held to have
been “left with” the defendant where the defendant told the
process server to give it to his legal representative, who was
standing next to him.
It has been held insufficient to simply leave documents for
a prisoner with the wardens of the gaol: Re: Ditfort; ex parte
Deputy Commissioner of Taxation (1988) 19 FCR 347.

Service of originating process on the defendant’s lawyer is
permissible in all jurisdictions, provided that the lawyer has
instructions from the defendant to accept originating service in
that proceeding: Ricegrowers Co-op Ltd v ABC Containerline NV
(1996) 138 ALR 480.
If there is more than one person to be served in a jurisdiction
that requires the original proceedings to be available for inspec-
tion, concurrent writs may be obtained. A concurrent writ is
simply another original of the writ for the purpose of service, to
allow for service on different defendants at the same time.
Proof that service has been effected in accordance with the
rules is normally accomplished by the bailiff or process server
completing an endorsement on the originating proceedings, or
an affidavit as to the details of service. In the Family Court, the
provisions for the proof of service are much more exacting than
in the other courts.
Statutory Aids
[7.30] In a number of areas, there are statutory provisions that
make service easier. The Service and Execution of Process Act
1992 (Cth) provides for service out of the State (“interstate
service”), provided that the provisions of the Act are complied
Ch 7: Service and Appearance 67
with, being service of the documents together with a copy of the

notice prescribed under the Act.
Some statutes allow for service in a form other than personal
service. The best example is under s 109X of the Corporations
Act 2001 (Cth) which allows for service by registered mail on
the registered office of the corporation. Other special rules
apply for service on the Crown, infants, and in motor vehicle
and workplace personal injuries acts.
Service Out of Australia

[7.40] When serving process outside of Australia, all jurisdic-
tions have criteria for establishing that there is a nexus between

the issuing forum and the dispute: Agar v Hyde (2000) 201
CLR 552.
Federal Court
[7.50] In the Federal Court, leave is required to serve outside
the jurisdiction (Federal Court Rules 2011 (Cth), r 10.43), and
will be granted where the court is satisfied that:
• it has jurisdiction in the proceeding;
• the proceeding falls within the heads contained in Federal
Court Rules 2011 (Cth), r 10.42; and
• there is a prima facie case for relief.
States and Territories

[7.60] The applicable rules in the ACT, NT, NSW, Qld, Tas, Vic,
and SA permit a plaintiff to serve an originating process out-
side of Australia without leave: (ACT), r 6501; (NT), r 7.01;
(NSW), r 11.2; (Tas), r 147A; (Vic), r 7.01; (Qld), r 124; (SA),
r 40. However, in the ACT, NT, NSW, Tas and Vic, if the defend-
ant does not enter an appearance, leave must be sought before
entering a default judgment: (ACT), r 6508; (NT), r 7.04; (NSW),
rr 11.2, 11.4; (Tas), r 147B; (Vic), r 7.04. In Western Australia,
the plaintiff may serve a writ outside the jurisdiction with the
court’s leave: Rules of the Supreme Court 1971 (WA), O 10, r 1.
68 Civil Procedure
Substituted Service
[7.70] If the plaintiff is unable to serve the proceedings per-
sonally, or with the assistance of a statutory aid, an application
may be made to the court to allow for service to be effected
in another manner, called “substituted service”. To obtain an
order for substituted service, it must be established (see Porter
v Freudenberg (1915) 1 KB 857) that:
(1) the defendant cannot, with reasonable diligence, be served;
(2) the proposed method of substituted service is likely to
bring the proceedings to the defendant’s notice; and
(3) but for practical difficulties, personal service is permissible.
In Embrey v Smart [2014] QCA 75, the Queensland Court of

Appeal held that the impracticality of person service must exist
at the time the court is asked to make the order for substituted
service. The most common methods of substituted service are
service upon relatives or friends of the defendant, publication of
notices in newspapers, service by post, and service upon compul-
sory insurers. Recently, applications have been made with varying
results, seeking to serve process via posting on social networking
internet sites, such as Facebook: Flo Rida v Mothership Music Pty
Ltd [2013] NSWCA 268 (default judgment set aside as service via
Facebook not valid, but court accepted possibility that substituted
service via social media could be effective); MKM Capital Pty
Ltd v Corbo & Poyser (unreported, ACT Supreme Court, Master
Harper, 12 December 2008) (substituted service by Facebook was
permitted); and Citigroup Pty Ltd v Weerakoon [2008] QDC 174
(substituted service by Facebook was not permitted).
Provided that the order is complied with, the plaintiff does
not have to show that the proceedings actually came to the
attention of the defendant: Grice v Grice [1930] St R Qd 261.
Appearance
[7.80] Once served with the originating process, entering an
“appearance” prevents the defendant from the risk of default
Ch 7: Service and Appearance 69
judgment. The appearance indicates that the defendant

intends to contest the proceedings, and is a document that is
filed in the registry and served on the plaintiff (or the plain-
tiff ’s solicitor).
In jurisdictions where proceedings are commenced by Writ,
an “Appearance” is a formal document filed by the defendant in
answer to the writ or claim. In other jurisdictions, it is part of
the process of filing a defence. In most jurisdictions, the defend-
ant cannot take a step in the proceeding without having first
entered an appearance. In the Northern Territory and Victoria,
the rules provide that the defendant can challenge jurisdiction
without having first entered an appearance: (NT), r 8.09; (Vic),
r 8.09. In the ACT, NT, NSW, Qld and Vic, the court may give
leave permitting the defendant to take a step prior to entry of
an appearance.
In personal actions only the named defendants may enter an
appearance. In actions in rem, such as admiralty actions, only
those with a proprietary interest in the subject matter of the
action may enter an appearance: Caltex Oil (Australia) Pty Ltd
v The Dredge “Willemstad” (1975) 136 CLR 529.
Unconditional
[7.90] An unconditional appearance is a submission to the juris-
diction of the court, a waiver of any objection to any defect in
the originating proceedings known to the defendant or obvious
on the face of the process, and a waiver of any irregularity in
service.
Conditional
[7.100] If the defendant wishes to dispute the jurisdiction of the
court or service, a conditional appearance must be filed. A con-
ditional appearance need not use the formal words prescribed
under the rules, so long as it is clear. Hence, an appearance
“under protest” was held to be a conditional appearance: Larsen
v The Ship “Nieuw Holland” [1957] St R Qd 605.
70 Civil Procedure
If a conditional appearance is filed, the defendant must then

bring an application to the court to seek to have the writ set
aside, or service set aside. If the defendant does not promptly
bring such an application in some jurisdictions, the appearance
becomes unconditional in 14 days and in others, the plaintiff
may bring an application for the conditional appearance to be
struck out, allowing judgment to be entered: Henry v Geoprosco
International Ltd [1976] QB 726. However, in some cases, the
question of jurisdiction may be of such complexity that it can-
not be determined until trial.
8
Pleadings
Introduction
[8.10] The pleadings in an action are commenced with the plain-
tiff ’s statement of claim. This is a written statement that sets out
the material facts the plaintiff relies upon to demonstrate a right
to relief, together with a statement of the relief claimed. The

defence follows the statement of claim stating which of the facts
alleged by the plaintiff the defendant admits, denies, or does
not admit, and any further facts that the defendant relies upon.
The optional further pleading, the reply, allows the plaintiff to
set out any further material facts that may be relevant as a result
of the defence. It is through this process that the parties identify
the precise nature of the dispute. If all of the factual matters
are not identified, further pleadings may be delivered by leave
of the court, such as a Rejoinder, Surrejoinder, Rebutter and
Surrebutter. However, pleadings beyond the reply are largely
unknown in the modern context.
This “three-document” system is the basic system of pleading
in the modern sense. If a defendant has a cross-claim or counter-
claim (as it is known in some jurisdictions), it is pleaded with
the defence, and commences the process again, with respect to
the cross-claim. Similarly, if a third party is joined by the defend-
ant, the defendant pleads a case against the third party who in
turn lodges a defence to which the defendant may file a reply.
It is important to bear in mind that pleadings are for the pur-
pose of identifying the relevant facts, and not for setting out alle-
gations of law. This distinction is well demonstrated in Konskier
v B Goodman Ltd [1928] 1 KB 421, where the plaintiff suc-
ceeded in trespass on a case argued on the basis of negligence.
71
72 Civil Procedure
The pleadings supported the verdict, as the relief in trespass

was available on the facts as pleaded (notably such a plaintiff
would now be likely to succeed in negligence in Australia, fol-
lowing Bryan v Maloney (1995) 182 CLR 609).
Odgers’ Pleading and Practice suggests that there are, how-
ever, four central functions served by the pleadings in an action:
1. to ensure that the parties know which issues are in dispute;
2. to allow the parties to identify the facts that they must
prove at trial;
3. to allow the mode of trial to be determined; and
4. to provide a record of the matters decided at trial by the
judgment.
The Court rules set out the formal requirements for pleadings
and provide forms for the purpose. However, a number of help-
ful basic rules can be distilled:
1. pleadings must be divided into separate numbered
paragraphs;
2. pleadings should be as brief as the nature of the case
will allow;
3. pleadings must particularise the party’s claim;
4. only material facts may be pleaded;
5. the evidence by which a party intends to prove a material
fact may not be pleaded;
6. each paragraph must contain only one allegation of fact;
7. the relief claimed must be stated;
8. the law may not be pleaded, only facts;
9. pleadings must be signed by the party or their solicitor; and
10. a pleading must be delivered to the other party.
A good example of the difficulties a plaintiff may face if a rel-
evant allegation is not pleaded occurred in Esso Petroleum
Co Ltd v Southport Corporation [1956] AC 218. The plain-
tiff brought an action against Esso for damages caused to a
Ch 8: Pleadings 73
beach when its ship, the Inverpool, discharged a considerable

amount of oil that was its cargo on running aground. The plain-
tiff alleged that the master of the vessel had been negligent in
the vessel’s navigation, and did not plead negligence on the
more general allegation that the vessel was unseaworthy. The
trial judge found that the navigation was not negligent and that
the damage was caused by a defect in the vessel (the vessel
had shipped heavy seas when her steering became erratic. The
master elected to continue towards protected waters, despite
a narrow channel, as the ship and crew were in peril. The ship
ran aground due to the steering defect and was at risk of break-
ing her back. The master elected to discharge the cargo of oil
to lighten the ship). The House of Lords held that the plaintiffs
were not entitled to judgment on an allegation of unseawor-

thiness as this was not an issue on the pleadings and therefore
not litigated at trial.
In many cases, however, the issues of fact will be litigated at
trial and an amendment to the pleadings, even after the trial,
may suffice: see for example State of New South Wales v Thomas
[2004] NSWCA 52 (court directed amendments to the pleadings
to make them conform to the issues determined at trial); and
Leotta v Public Transport Commission (1976) 50 ALJR 666.
Statement of Claim
[8.20] The statement of claim is the first pleading. In it the
plaintiff must frame his or her case. The descriptions of peo-
ple, places and things should remain consistent throughout the
statement of claim. Names of non-parties should be given in
full, and the parties referred to by their designation, eg “the
plaintiff ”. Generally, a statement of claim will be easier to follow
if set out chronologically, and if a long document, headings may
be inserted. If a number of different types of claim are pleaded,
headings can be very helpful. The requirement to plead material
facts does not exclude the pleading of legal categories, such as
duty of care, contract, and fiduciary duty: Kirby v Sanderson
Motors Pty Ltd (2002) 54 NSWLR 135.
74 Civil Procedure
Particulars must be inserted in order to control the making of

broad allegations that do not provide sufficient detail to put the
defendant on notice of the claims against them. However, the
rules relating to particulars also apply to defences and replies. If
the particulars are brief, they should be included in the pleading
itself; if they are lengthy, they should be provided by delivery of
a separate document. Each jurisdiction has rules about particu-
lar matters that must be pleaded. For example, in Queensland,
particulars of any claim made for special, aggravated or exem-
plary damages must be pleaded: Uniform Civil Procedure Rules
1999 (Qld), r 158.
Importantly, the plaintiff should not anticipate defences
and “reply” to them in advance in the statement of claim: the

reply is the appropriate place to set out further facts that may
become relevant to a particular defence: Hall v Eve (1876) 4
Ch D 341.
The general structure of a statement of claim can be divided
into three parts:
1. The Matters of Inducement: The paragraphs setting out
who the parties are, what business they carry on, how they
are related or connected, and any other surrounding cir-
cumstances leading up to the central issues.
2. The Substantive Content: The central issues demonstrating
a cause of action, such as the terms of a contract, the breach
and the damage suffered.
3. The Prayer for Relief: The final part of a statement of claim
setting out the relief claimed by the plaintiff.
When drawing pleadings, numerous precedents are available as
guides in Bullen and Leake and Jacob’s, Precedents of Pleading
(Sweet & Maxwell, London) and Azize, El Khouri and Finnanes’
Pleading Precedents (Thomson Reuters, Sydney). These days,
there are also a range of online precedents databases. It is use-
ful for the drafters to peruse a number of pleadings in the prec-
edent books, as all will require careful tailoring to reflect the
factual matrix at hand.
Ch 8: Pleadings 75
A party may plead inconsistent allegations in the alterna-

tive: Philipps v Philipps (1878) 4 QBD 127. A plaintiff may also
refer to documents in the pleadings, although the material parts
must be set out in full or in summary form: Bloeman v Atkinson
[1977] Qd R 291. The fulfilment of a condition precedent is
implied and need not be pleaded by the plaintiff in the statement
of claim: Gates v WA and RA Jacobs Ltd [1920] 1 Ch 567. It is for
the defendant to raise any allegation that a condition precedent
has not been fulfilled, to which the plaintiff may provide a reply.
A party who pleads a condition of mind, which may include,
for example, a mental disorder or disability, fraud, or malice,
must give particulars of that allegation. In the Federal Court,
a party is required to particularise the facts and circumstances

relied upon to show a state of mind alleged in the pleadings.
In Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 70
FLR 135, the plaintiffs were required to provide particulars of
the facts relied upon in support of a claim under the Trade
Practices Act 1974 (Cth) to show that the defendant had no rea-
sonable expectation that all of the shops in a shopping centre
would be fully tenanted when the centre opened.
Defence
[8.30] A defendant must answer the plaintiff ’s pleading and
plead any fact that may take a plaintiff by surprise. A defendant
has a number of general strategies that may be pursued in a
defence:
1. traverse (denial of) the plaintiff ’s allegations;
2. plead further facts to show that the plaintiff is not entitled
to relief in the matter (“confession and avoidance”);
3. raising a point of law; and
4. pleading a set-off.
Generally, more than one strategy will be adopted; for example
a denial of the facts alleged by a plaintiff, rather than admitting
them, and pleading further facts in the alternative.
76 Civil Procedure
The defendant does not plead to damages, which are pre-

sumed to be denied under the rules of court. However, if a
defendant wishes to allege that the plaintiff has not mitigated
its loss, then the defendant must plead the facts relied upon as
the onus is on the defendant on the issue of mitigation of dam-
ages: Plato Films Ltd v Speidel [1961] AC 1090.
Denials
[8.40] It is important for the defendant to deny any allegation
not admitted, as in many jurisdictions allegations of the plaintiff
not denied will be taken to be admitted by the defendant.
The effect of a denial is simply to put the plaintiff to proof
of the allegation. If any further fact is to be set up, it must be

pleaded. For example, in Davie v New Merton Board Mills
[1956] AC 604 the defendant simply denied it was negligent in
a case where an employee had lost his eye when a splinter of
steel broke off of a drift when struck by a hammer. The court
found that the defendant had to plead the allegation that the
defendant had purchased the drift from a reputable supplier.
While a practice has developed of pleading that the defend-
ant “does not admit” facts that are not seriously challenged
(but wishes to reserve the right to challenge, if the need arises),
the effect in law of a denial or a “do not admit” pleading is
the same: that of a denial: see Thorp v Holdsworth (1876) 3
Ch D 637.
Denials may be considered “evasive” if not properly drawn.
A general denial, such as “the defendant denies the facts alleged
in paragraph 3 of the statement of claim” will simply put the
plaintiff to proof on those allegations. However, to plead that
“the defendant denies that the terms of the arrangement between
the defendant and the plaintiff were definitely agreed upon as
alleged”, is evasive. Such a pleading is evasive as it is not clear
what part of the plaintiff ’s allegation is actually denied: Thorp v
Holdsworth (1876) 3 Ch D 637. The rules in the Federal Court
and Tasmania specifically provide that denials must not be eva-
sive: FCR: r 16.02(2)(c); (Tas), r 232. The same result is achieved
Ch 8: Pleadings 77
in the other jurisdictions by operation of the rules relating to

admissions and denials: (ACT), r 441; (NT), r 13.12; (NSW),
r 14.26; (Qld), r 166; (SA), r 100; (Vic), r 13.10; (WA), O 20, r 14.
A denial of a negative allegation may amount to a “negative
pregnant” resulting in the defendant having to provide particu-
lars of the denial, as a denial of a negative creates a double neg-
ative and therefore a positive allegation. For example, a denial
of an allegation that “the defendant had effected purchases or
sales without having been authorised to do so by the plaintiff ”
would result in the defendant being ordered to provide particu-
lars of the authority relied upon: Pinson v Lloyds and National
Provincial Foreign Bank Ltd [1941] 2 KB 72. Similarly, a denial
that a particular ladder was the only means of egress from a ship
was held to be a negative pregnant in Johnson v Sewell (1962)
QWN 81. However, not all denials of negative allegations will
result in the party having to provide particulars of the denial: see
Chapple v Electrical Trades Union [1961] 1 WLR 1290.
Confession and Avoidance

[8.50] Pleas in this category can be divided into two types: pleas
in justification and pleas in discharge. A justification is a pleading
of additional facts to show that the plaintiff never had a cause of
action entitling the plaintiff to relief. A plea in discharge is a plea
showing that a cause of action that the plaintiff once had has
since been discharged. However, the ultimate effect of the two
types of pleas is to raise an additional fact that defeats the plain-
tiff ’s claim. The two classes of such pleas are largely academic.
An example of such a plea is that of illegality of contract.
The plaintiff pleads a contract and the defendant pleads facts to
show that the contract is in contravention of legislation, such as
the money lenders Acts: Castles v Friedman (1910) 11 CLR 580.
Raising a Point of Law and Demurrer

[8.60] The process of entering a demurrer to a statement of
claim is now only available in the High Court: High Court Rules
78 Civil Procedure
2004 (Cth), r 27.07. If a defendant enters a demurrer he or she

alleges that the plaintiff ’s pleading, as drawn, does not dis-
close a cause of action even if all of the allegations of fact were
accepted. The demurrer procedure is no longer available in the
State and Territory courts.
The alternative procedure, which is available in all jurisdic-
tions, is raising an objection in point of law in the pleadings.
This is an exception to the principle that questions of law are
not pleaded. By raising such an objection, the issue is identified
and may be dealt with summarily, or reserved for trial: an exam-
ple of a point of law being dealt with summarily can be found in
Ball v Consolidated Rutile [1991] 1 Qd R 524.
Set-off
[8.70] A set-off is a defence to the plaintiff ’s claim and must be
pleaded as part of the defence. As a set-off is a defence and not a
separate claim, the defendant will not recover any sum by which
the set-off exceeds the plaintiff ’s claim unless the set-off is also
brought as a counter-claim or cross-claim. However, as a set-off
is a defence, and not a separate claim, it will generally not be
restricted by any limitation periods. There are two types of set-
off: legal and equitable.
Legal Set-off
[8.80] At common law, no set-off was allowed until the Insolvent
Debtor’s Relief Act 1728 (Imp), which allowed for liquidated
demands to be set off. A legal set-off is restricted to liquidated
claims: McDonnell & East Ltd v McGregor (1936) 56 CLR 50.
Put simply, a set-off allows for one debt to cancel out another,
such as off setting accounts. For example, a claim by one trader
on a debt for goods delivered could be met by a defence by
way of set-off to the extent that a defendant alleges that a debt
is owed by the plaintiff to the defendant, such as for services
rendered.
In the Federal Court, ACT, NT, NSW, Tas, Vic and WA, if a
plaintiff intends to rebut an allegation of set-off, to avoid raising
Ch 8: Pleadings 79
any matter that would surprise the defendant, it should be

raised in a reply. Further, in Queensland, a reply should be
delivered to avoid the impact of r 168, which could result in any
disputed matters surrounding the set-off becoming an implied
non-admission.
Equitable Set-off
[8.90] Equity allowed for a set-off before the statutory alteration
of the common law: see for example Ex parte Stephens (1805)
11 Ves Jun 24. Equity will allow a set-off where the defendant’s
claim impeaches the plaintiff ’s title to sue. The test is whether,
before the Judicature Acts, equity would have restrained the
plaintiff from exercising his or her legal rights: Rawson v Samuel
(1841) Cr & Ph 161.
Further Pleadings
[8.100] The only further pleading that may be delivered by a
plaintiff without leave is a reply to the defence. The reply is
crucial if there are further facts that a plaintiff must allege to
overcome a defence. For example, in Bank Commerciale SA
(en liq) v Akhil Holdings Ltd (1990) 169 CLR 279, the defend-
ant pleaded a defence based upon a limitation period and the
plaintiff failed to plead a reply alleging fraud (to overcome the
limitation defence). The High Court held that it was not open to
the court to make a finding of fraud in the absence of a pleading
to that effect.
In all jurisdictions except Queensland, there is an implied
joinder of issue on the allegations contained in the last plead-
ing. Each of the allegations contained in the last pleading
is taken to be denied and in dispute between the parties. In
Queensland, there is no implied joinder, rather, any allegations
left unanswered in the last pleading are taken to be a non-
admission: (Qld), r 168. This is critical, as a party who pleads
a non- admission cannot call or give evidence in relation to
the subject matter of the non-admission without leave of the
court: (Qld), r 165.
80 Civil Procedure
It is open to a defendant to bring a counter-claim. That is a

claim by the defendant against the plaintiff to be heard at the
same time as the plaintiff ’s claim against the defendant. The
counter-claim may be brought against the plaintiff and addi-
tional parties.
Counter-claims
[8.110] In the Federal Court and NSW a counter-claim is referred
to as a cross-claim. A counter-claim is a claim by a defendant
against the plaintiff which is related to the plaintiff ’s action
against the defendant. A simple form is where a builder sues
for money due and owing and the defendant counter-claims for
damages for poor workmanship. The restrictions upon counter-
claims are not nearly as narrow as those imposed upon a
set-off.
A plaintiff must then lodge a defence to the counter-claim
(in some jurisdictions referred to as an “Answer”), to which the
defendant may reply. As the counter-claim is a separate action
in its own right it will remain on foot even if the plaintiff dis-
continues, unlike a set-off which is only a defence. Similarly, the
defendant may enter judgment in default on a counter-claim if
the plaintiff does not plead to it in the required time.
Third and Subsequent Parties

[8.120] A defendant may wish to join a third party in order to
claim a contribution or indemnity from the third party, if the
claim against the third party is related to the claim of the plain-
tiff against the defendant. For this purpose, a Third Party Notice
must be issued, and pleadings then follow in the usual way.
Leave of the court is required if a defendant wishes to issue a
Third Party Notice after delivering the defence. The third party
is not a defendant as against the plaintiff; rather, the third party
has the same rights against the defendant as if it had been sued
by the defendant in a separate proceeding.
Ch 8: Pleadings 81
As a third party is not a defendant, the plaintiff may not

obtain judgment against the third party without first joining
the third party as a defendant. A third party claim is effectively
an action between the defendant and third party. Thus, a third
party may counter-claim against the defendant: Barclay’s Bank
v Tom [1923] 1 KB 221.
Similarly, a third party may join a fourth party. An interesting
example can be found in the “Under Milkwood” case where the
executrix of Dylan Thomas’ estate sued the Times Book Co. for
return of the original manuscript, and an injunction to restrain
Times from dealing with the manuscript. Times joined Cox as
the third party as Cox had sold them the manuscript. Cox in turn
joined Cleverdon as a fourth party as Cleverdon had sold the

manuscript to Cox. Cleverdon claimed that Thomas had given
the manuscript to him: Thomas v Times Book Company Ltd; Cox
(third party) and Cleverdon (fourth party) [1966] 1 WLR 911.
However, the third party procedures may only be utilised if
some relief or remedy is sought from the party to be joined.
A party may not be joined simply to ensure that they are bound
by the findings of the court on the issues litigated.
If the defendant wishes to make a claim against another
defendant in the action, a Third Party Notice is not required as
the party is already a party to the action. A defendant may simply
issue a Notice of Contribution and Indemnity against the other
defendant.
Particulars
[8.130] The extent to which a party must provide precise par-
ticulars of any allegation pleaded is often a difficult issue. The
rules provide for the provision of particulars. The basic func-
tion of particulars was described by Isaacs J in R v Associated
Northern Collieries (1910) 11 CLR 738:
I take the fundamental principle to be that the opposite party shall
always be fairly apprised of the nature of the case he is called upon
to meet, shall be placed in possession of its broad outlines and the
82 Civil Procedure
constitutive facts which are said to raise his legal liability. He is to

receive sufficient information to ensure a fair trial and to guard
against what the law terms “surprise”, but he is not entitled to be
told the mode by which the case is to be proved against him.
The more common examples of particulars that are usually

required in a contract case are:
• the date that a contract was entered into;
• whether it was oral, in writing, or by conduct;
• the identification of any writing, words used or conduct
relied upon; and
• the identity of the persons who entered into the contract on
behalf of the parties; etc.

In negligence cases, particulars of the negligence are commonly
sought, such as these examples of particulars of negligent
driving:
• failing to stop at a red light;
• failing to keep a proper lookout;
• failing to swerve or steer clear so as to avoid a collision; and
• driving while under the influence of alcohol; etc.
While particulars cannot be used to discover the names of
the witnesses of another party, in some cases, the identity of
the person will be relevant. For example, the person entering
into a contract or holding a particular intention on behalf of
a company will need to be identified: Australian Commercial
Research and Development Ltd v Commonwealth [1995] 2 Qd
R 336. In other cases, the conduct of specific persons may be
relevant, making it necessary to identify the person in some
way: Lemon & Co Pty Ltd v Moran and Cato Pty Ltd [1921]
VLR 240.
A common misconception is that a party is not entitled
to particulars of matters of which the party is already aware.
A party is entitled to full particulars regardless of their state of
knowledge as they are entitled to know the exact case that the
opponent intends to put at trial.
Ch 8: Pleadings 83
Although particulars are incorporated into the pleadings,

they are not material facts and therefore should not be pleaded
to by the other party. As particulars supplement the material
facts with details, they cannot supersede the material facts as
pleaded, nor remedy an otherwise defective pleading: Trade
Practices Commission v David Jones Australia Pty Ltd (1985)
7 FCR 109.
In many jurisdictions, there are special requirements as to
the particulars which must be pleaded in personal injury cases
set out in the rules.
9
Interlocutory Applications
Introduction
[9.10] In all jurisdictions in Australia, the parties work towards
the trial of an action where all of the evidence is heard and a
final judgment given. In this respect, the Australian system has
been strongly influenced by the process of trial by jury. That

is, all of the procedural steps necessary to identify issues and
discover evidence are taken prior to a formal trial. The ensu-
ing trial then takes place as one uninterrupted hearing of the
evidence and arguments, followed by verdict or judgment by
the trier of fact (the judge or jury). Although juries are now
uncommon in civil trials, the principle of an uninterrupted trial
followed by judgment, remains.
However, it is common for many disputes to arise prior to
trial concerning matters of procedure, or the preservation of
property or rights. For examples, disputes as to pleadings, dis-
covery and the need for injunctions to preserve property.
It is for this purpose that “interlocutory” procedures
have developed for determining matters that are not part
of the final trial. Put most simply, an interlocutory order is
one which does not finally determine the rights of the par-
ties: Adam P Brown Male Fashions Pty Ltd v Philip Morris
Inc (1981) 148 CLR 170. Thus, applications for orders that a
party make disclosure or provide security for costs are inter-
locutory applications. Similarly, applications for injunctions
pending trial (interlocutory injunctions), orders for speedy
trial and leave to amend pleadings are all interlocutory
orders.
84
Ch 9: Interlocutory Applications 85
Procedure
[9.20] Usually, interlocutory applications are made after the
commencement of proceedings. The forms and method for
making such applications are prescribed by the various rules. If
the application is to be made to a judge, the application is made
at chambers by summons or application. If the application is to
be made to the court, the application is done by motion, and
the notice of motion is served on the opposite party.
A party may seek an interlocutory order part way through a
proceeding, or possibly even before a claim or an originating
application is issued, in order to protect a right of the party, but
which does not finally settle the dispute between the parties.
These types of orders are interlocutory orders.
In cases of extreme urgency, a Judge may make an interloc-
utory order without material, provided an undertaking is pro-
vided to file a summons and affidavit as soon as possible. Such
cases are now becoming rare as word processing has greatly
increased the speed at which material may be produced.
Some interlocutory applications are made ex parte, that is
in the absence of any other party. This will occur in cases of
extreme urgency, or where there is a risk that a party will defeat
the application by conduct prior to the hearing if they receive
notice (examples include applications for Anton Piller (search
orders) and Mareva orders (seizure orders)). On an ex parte
application, the applicant bears an onus to ensure that all of the
material facts are placed before the court, even if they are not
all in the party’s favour. This onus arises because the other party
will not have an opportunity to be heard. A failure to provide
full and frank disclosure may result in the court discharging the
order on the application of the other party (and possibly pro-
fessional discipline if done knowingly by a lawyer). When an
injunction is made ex parte, pending further hearing of the par-
ties, it is often referred to as an interim injunction.
Interlocutory orders are generally made on the basis of affi-
davit evidence after a hearing in “court”. Most jurisdictions,
86 Civil Procedure
with the exceptions of the Federal Court, Tasmania and Western

Australia, no longer maintain a distinction between “court” and
“chambers”. Thus, all matters are conducted “in court”. The rel-
evant rules define the jurisdiction of those matters that can be
raised by chambers application.
Deponents of affidavits can be cross-examined with leave of
the court, however leave is not readily given.
Common Types of Interlocutory Orders

Injunctions
[9.30] Interlocutory injunctions may be granted under the

inherent (equitable) jurisdiction of the court, which supple-
ments the court’s power to order the preservation or detention
of property pending final determination of the dispute. Before
making an application for an injunction, it is advisable to con-
firm that the court has been conferred with such jurisdiction.
For example, the lower courts, such as magistrates court, may
not be conferred with such jurisdiction, in contrast to the pow-
ers available to a “superior court”.
Interlocutory injunctions support the court’s power to
order the preservation or detention of property, holding a sit-
uation until trial (for example, a defendant may be required
to maintain goods until the date of trial). Interlocutory injunc-
tions can be contrasted with interim injunctions, which may
run only for a few days and are often sought in an emergency,
on an ex parte basis, until the hearing of an application for
an interlocutory injunction can be heard. Interlocutory injunc-
tions can also be contrasted with perpetual or final injunc-
tions, which are a form of final judgment, settling the dispute
between the parties.
In order to obtain an interlocutory injunction (or an order
for the preservation of property), the party (generally the plain-
tiff) must identify the legal (either statutory or equitable) rights
that are to be determined at trial, and for which final relief is
sought: Australian Broadcasting Corporation v Lenah Game

Meats Pty Ltd (2001) 208 CLR 199.
Secondly, the party seeking an interlocutory injunction must
make out a prima facie case: Beecham Group Ltd v Bristol
Laboratories Pty Ltd (1968) 118 CLR 618. Although reference
is often made to Lord Diplock’s test in American Cynamid Co v
Ethicon Ltd [1975] AC 396, whether there is a “serious question
to be tried”, it is now settled that the Beecham test is appli-
cable in Australia following the decision of the High Court in
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR
57. Generally, the court will not attempt to resolve disputed
questions of fact or difficult questions of law in making a deci-
sion on an interlocutory application: American Cynamid Ltd at

407; Beecham Group Ltd at 622.
Finally, the party seeking interlocutory injunctive relief must
also show that the balance of convenience is in favour of grant-
ing the relief. Relevant considerations include the nature of
the case or property in dispute, whether irreparable harm will
be suffered by the party if the relief is not granted; whether
damages will be a sufficient remedy if the injunction is wrongly
granted; and the prejudice and detriment caused to the party
against whom the injunction is sought. The court will decide
whether the interlocutory relief sought would overturn or
merely maintain the status quo; and finally, will consider the
sufficiency of the applicant’s undertaking as to damages.
A similar order to an interlocutory injunction, a property
preservation order, may also be sought. Such an order may
allow an applicant to access, observe, photograph or copy, and
take samples of the defendant’s property. Generally, a defend-
ant to an application for a property preservation order must be
notified.
Search Orders –“Anton Piller” Orders

[9.40] Where there is a real possibility that a defendant may
destroy property, so that an applicant needs to take preser-
vation action without notifying the defendant, the applicant
88 Civil Procedure
may apply on an ex parte basis for a search order: Anton Piller

KG v Manufacturing Processes Ltd [1976] 2 WLR 162; Long v
Specifier Publications Pty Ltd (1998) 44 NSWLR 545.
Such an order may provide the applicant with the right to
enter premises, and to inspect and seize property of the defend-
ant. As an ex parte application, the applicant is required to pro-
vide full and frank disclosure of relevant matters, including
those in favour of the defendant. The order is quite an extreme
one, and special rules have been developed by the courts
(Practice Directions) relating to the manner in which search
orders may be executed.
Property preservation orders and search orders are con-
cerned with preserving property that may be relevant to the

final determination of a dispute.
Freezing Orders –“Mareva” Orders

[9.50] Freezing orders are concerned with ensuring that a
defendant does not deal with its property in such a way as to
deprive the applicant of the fruits of judgment. Mareva orders
grew out of the court’s jurisdiction to grant interlocutory
injunctions, although the jurisdictional basis of Mareva orders
is now rationalised as extending to the jurisdiction of a court
to prevent abuse of its processes: see Cardile v LED Builders
(1999) 198 CLR 380.
An applicant for a freezing order needs to show a reasona-
bly arguable case, prove that the defendant has assets within or
outside the court’s jurisdiction and establish that there is a real
risk or danger that the defendant will remove, dispose or other-
wise deal with those assets so as to frustrate judgment: Mareva
Compania Naviera SA v International Bulkcarriers SA [1975]
2 Lloyds Rep 509; Jackson v Sterling Industries Ltd (1987) 162
CLR 612. The relevant court rules set out the procedure for
making an application for such an order.
A court may grant a freezing order ancillary to final judg-
ment, as well as at an interlocutory stage. Before granting an
interlocutory freezing order, an applicant will need to establish,

in addition to those matters already described, that the balance
of convenience favours the grant of such an order. An applica-
tion for a freezing order may be made on an ex parte basis.
Undertaking as to Damages
[9.60] Applicants for any of the interlocutory orders considered
above are required to provide the “usual undertaking as to dam-
ages”, which means that the applicant undertakes to meet any
damage suffered by the defendant as a result of the grant of the
interlocutory order.
Affidavits
[9.70] An affidavit is simply a document setting out a person’s
evidence or account in numbered paragraphs. However, affi-
davits are of increasing importance as they are often used in
place of oral evidence in a modern civil litigation context. In
the Family Court, for example, all evidence in chief is by way
of affidavit.
Affidavits are sworn before a person authorised by statute
to take affidavits: usually a solicitor, justice of the peace, or
Commissioner for declarations. The jurat (the swearing clause)
must be appropriate for the nature of the oath or affirmation
taken by the deponent (person making the affidavit). It is
important to ensure that the proper oath is taken, as it will be
professional misconduct to witness an affidavit that is not prop-
erly sworn or affirmed.
The affidavit must set out the details of the person swear-
ing the affidavit (“the deponent”), in accordance with the rele-
vant rules; usually the full name, address and occupation of the
deponent (person swearing the affidavit). If an affidavit is sworn
on behalf of a company, the deponent must have actual author-
ity to swear the affidavit: the best authority being a resolution of
the board of the company. The affidavit will then begin with a
90 Civil Procedure
clause stating the deponent’s role in the company, for example,

“I am the director of Acme Pty Ltd”, followed by, “I am author-
ised to make the affidavit on behalf of….”.
The court rules provide for the form of an affidavit. Facsimile
affidavits can usually be used if an undertaking to file the original
in due course is given to the court. Affidavits must commence
with the person’s name, address and occupation, such as:
I, John Doe, of 2 Homely Crescent, Huntingdon, Solicitor, make
oath and say as follows:
Thereafter, the evidence of the deponent is set out in numbered

paragraphs. The affidavit is written in the first person as it is the
evidence of the deponent. Affidavits in interlocutory proceed-

ings may contain hearsay, provided that the source of the infor-
mation is named or set out, and that the deponent swears to a
belief in the truth of the information: Community Development
Pty Ltd v Engwirda Construction Co [1968] Qd R 541.
If the affidavit contains inadmissible evidence or scandalous
or irrelevant material, the offending paragraphs may be struck
out by the court, or in some cases the whole affidavit.
A very useful paper on drawing affidavits has been published
by the New South Wales Bar Association, QC Alan Sullivan,
Written Evidence: Witness Statements and Affidavits as an
alternative to oral evidence, available on the Association’s web-
site, www.nswbar.asn.au.
Cross-examination of Deponents
[9.80] The deponent of an affidavit may be required for cross-
examination by any of the opposing parties. Most rules make
provision for the service of a notice on the party relying upon
the affidavit requiring that the deponent be available for cross-
examination. If a party is put on notice that a deponent is
required, they may not rely upon the affidavit without produc-
ing the deponent for cross-examination: Re Blue Pines Pty Ltd
[1988] 1 Qd R 13.
However, in many interlocutory applications, cross-

examination will not be common, as the court will be relying
upon the prima facie evidence of a party and will not be making
a final determination of the facts until trial. Alternatively, the
facts in many interlocutory affidavits may not be contentious,
such as solicitors’ affidavits annexing correspondence. Cross-
examination may only take place on an interlocutory applica-
tion by leave of the court, and only if an issue of fact must be
resolved to determine the application, such as an application to
extend a limitation period.
10
Ending Proceedings
Early
Introduction
[10.10] Many actions commenced in the civil jurisdiction never
reach trial. In this chapter, we look at some of the mechanisms

by which a proceeding may be ended early (that is, before trial).
The availability and application of these mechanisms for ending
proceedings early is consistent with the philosophy that litiga-
tion should proceed in an expeditious and cost-effective fashion.
As we saw in Chapter 2 Case Management, when consider-
ing case management, tension can arise between the goal of
expeditious disposition of proceedings and ensuring that jus-
tice is done in a given case. This same tension confronts a court
when deciding whether or not to end a proceeding early.
What are the mechanisms for ending a proceeding early? If
a plaintiff is being tardy in pursuing their claim, a defendant
may apply to have the plaintiff ’s action dismissed for want of
prosecution. On the other hand, in a matter started by claim, a
plaintiff may apply for a default judgment if the defendant fails
to serve a notice of intention to defend within the stipulated
time. Default judgments are generally entered by a registrar,
who constitutes the court for this purpose.
Either party may apply for a summary judgment, on the basis
that the other party has no real prospect of success on a claim
(plaintiff) or defending a claim (defendant). Either party may
also discontinue a proceeding, either as of right, by consent, or
by leave of the court.
92
Ch 10: Ending Proceedings Early 93
The effects of each of these mechanisms may differ. For

instance, a summary judgment is a final judgment of the court
and, apart from ex parte matters, can only be challenged on
appeal. A party can apply to the court to have a default judg-
ment set aside or varied. Dismissal for want of prosecution and
discontinuance are not final judgments of the court. This means
that it may be possible for the same cause of action to be subse-
quently re-agitated in the court, although the parties themselves
or the court can foreclose this. One reason for this is that it may
be an abuse of process to allow an action to be re-instituted.
It should be noted that the superior courts, in exercising their
inherent jurisdiction, may also dismiss a proceeding on the
basis that it is an abuse of process.
Settlement and alternative dispute resolution are also mech-

anisms by which proceedings may be finalised before trial,
and are discussed in subsequent chapters. In this chapter, we
look at five mechanisms by which proceedings may be ended
before trial:
(1) Dismissal for want of prosecution;
(2) Default judgment;
(3) Summary judgment;
(4) Judgment on pleadings or admissions; and
(5) Discontinuance
Dismissal for Want of Prosecution

[10.20] In all jurisdictions, the applicable rules of court provide
the criteria that permit the court to dismiss for want of prose-
cution: Federal Court Rules 2011 (Cth), r 5.22; (ACT), r 1110;
(NSW), rr 12.7-12.8; (NT), r 24.01; (Qld), r 280; (SA), rr 39, 123;
(Tas), r 265; (Vic), r 24.01; (WA), O 33, r 2.
Regardless, a court has an inherent power to strike out pro-
ceedings for want of prosecution if a plaintiff fails to act expe-
ditiously. The principles to be applied were set out clearly in
Birkett v James [1978] AC 297. In Birkett v James [1978] AC 297
94 Civil Procedure
the House of Lords stated that the court should only strike out
proceedings for want of prosecution where:
(a) the delay has been intentional and contumelious; or
(b) the delay is inordinate and inexcusable so as to be likely to
cause serious prejudice or give rise to a substantial risk that
a fair trial is not possible.
In Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd (No
2) [1998] 2 Qd R 551, the Queensland Court of Appeal ques-
tioned the test set forth in Birkett v James and suggested that
it should not create a barrier against striking out proceedings
for excessive delay, thereby encouraging dilatoriness. The
decision to strike out must remain a discretionary one for the
courts: Cooper v Hopgood & Ganim [1999] 2 Qd R 113.

In Cooper v Hopgood & Ganim [1999] 2 Qd R 113,
McPherson J provided a non-exclusive list of facts that the court
would consider as being relevant to the exercise of discretion to
dismiss for want of prosecution:
(1) how long ago the events alleged in the statement of claim
occurred and what delay there was before the litigation was
commenced;
(2) how long ago the litigation was commenced or causes of
action were added;
(3) what prospects the plaintiff has of success in the action;
(4) whether or not there has been disobedience of Court
orders or directions;
(5) whether or not the litigation has been characterised by
periods of delay;
(6) whether the delay is attributable to the plaintiff, the defend-
ant or both the plaintiff and the defendant;
(7) whether or not the impecuniosity of the plaintiff has been
responsible for the pace of the litigation and whether the
defendant is responsible for the plaintiff ’s impecuniosity;
(8) whether the litigation between the parties would be con-
cluded by the striking out of the plaintiff ’s claim;
(9) how far the litigation has progressed;

(10) whether or not the delay has been caused by the plaintiff ’s
lawyers being dilatory. Such dilatoriness will not necessar-
ily be sheeted home to the client but it may be;
(11) whether there is a satisfactory explanation for the
delay; and
(12) whether or not the delay has resulted in prejudice to the
defendant leading to an inability to ensure a fair trial.
These criteria were cited with approval by Atkinson J in Tyler v
Custom Credit Corp Ltd [2000] QCA 178 and provide a useful
summary of the factors that a court will take into account in
determining whether the interests of justice require a case to
be dismissed.
Establishing prejudice as a result of delay can prove to be
a logical conundrum, in that delay may cause memories to
fade or be lost; however, there may be no way of establish-
ing that the original “memory” existed or was of any use to a
party. Prejudice is more easily established where witnesses or
parties have died or are unable to be located. Alternatively,
prejudice to a fair trial may be established where one par-
ty’s case is wholly reliant upon oral evidence of events that
occurred over a long period, and the other party’s case is
largely supported by documents. For example, this may occur
in a claim be a de facto of a constructive trust where one party
has met the mortgage payments and the other made signif-
icant contributions that are not demonstrated by financial
records.
Default Judgment
[10.30] If a defendant fails to enter an appearance to a writ or
claim, or lodge a defence within the appropriate time provided
for under the rules, the plaintiff may enter judgment by default.
If the claim is for a “debt or liquidated amount” a final judgment
may be entered for the amount claimed. If the claim is for dam-
ages, judgment may be entered with damages to be assessed. As
96 Civil Procedure
equitable remedies are discretionary, no default judgment may

be entered for an injunction or similar claim.
As judgment by default results in a judgment without the
defendant being heard, the rules must be complied with strictly.
Any failure to strictly comply with the rules will result in the
judgment being set aside ex debito justitiae (that is, something
that is due as a matter of right regardless of whether the defend-
ant has a defence on the merits. Common examples include
judgments signed too soon, and judgments for too great an
amount. However, the court does have discretion to amend
a judgment entered for the wrong amount, although this will
rarely be exercised: City Mutual Life Assurance v Giannarelli
[1977] VR 463.
Often, a plaintiff will want interest on the default judg-
ment. Where interest is contractually payable, it may be
awarded as a liquidated amount: Philips Industries Holdings
Ltd v Debrueys [1977] Qd R 193. Where interest is not paya-
ble pursuant to a contract, interest in the nature of damages
may be payable pursuant to statutory authority. If this is the
case, it must be awarded following a judicial (not registrar’s)
determination, and must have been pleaded in the originating
pleadings.
If a default judgment is regularly entered, the defendant
must demonstrate that it would be unjust for the judgment to
stand: Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW)
239. In Rosing v Ben Shemesh [1960] VR 173 the court identi-
fied a number of important considerations in the exercise of the
discretion to set aside a default judgment:
(a) the defendant should explain the default;
(b) the defendant must apply to set aside the judgment with-
out further delay;
(c) the defendant must show that any prejudice suffered by the
plaintiff may be adequately compensated by costs; and
(d) the defendant must demonstrate an arguable defence on
the merits.
However, it will be rare that a court will not allow a defend-

ant to defend a claim if they are able to demonstrate a prima
facie or arguable defence even if the explanation of the delay
is dubious: National Australia Bank Ltd v Singh [1995] 1 Qd
R 377. In Cook v DA Manufacturing Co Pty Ltd [2004] at [19],
Williams JA says that a meritorious defence may be the most
influential factor in persuading a court to set aside a decision
made in default.
Summary Judgment
[10.40] All jurisdictions provide for an application for judgment
without proceeding to trial, known as “summary judgment”.

The primary purpose of an application for summary judgment
is to assess whether any triable issues of fact exist that necessi-
tate a full trial on the merits. If a court determines that there
are no triable issues of fact, then summary judgment provides
a speedy mechanism for resolution of the lawsuit in favour of
the party who has established that they are entitled to judg-
ment on the merits as a matter of law. The legislative purpose
of summary judgment statutes and rules is to enable the court
to prevent the use of frivolous defences and to prevent parties
from using court processes to delay an inevitable judgment
against them.
As the effect of awarding a party summary judgment is to
deny the opposing party the opportunity to present its case
to the court –a key feature of Australia’s adversarial system of
justice –summary judgment is viewed by the courts as a dras-
tic remedy that should be granted with caution. However, it is
in the interests of justice that judgment be rendered in cases
where no triable issue of fact has been raised, as doing so cuts
down on delay and prevents one party from dragging proceed-
ings out to the detriment of other parties.
Applications for summary judgment are generally made early
in the action, usually before a defence is lodged and prior to the
discovery phase of proceedings.
98 Civil Procedure
Under the older English rules, summary judgment was only

available in a limited range of circumstances when a plain-
tiff was seeking judgment on a claim for a debt or liquidated
demand. This has been extended to applications for possession
of land and specific performance. In a number of Australian
jurisdictions, summary judgment is now available in a wider
range of cases.
It is therefore necessary to consider the test to be applied
by the courts in considering applications for summary judg-
ment, as well as the definition of “debt or liquidated demand”,
a restriction still in place in many jurisdictions in Australia.
Applications for Summary Judgment

[10.50] An application for summary judgment must be sup-
ported by an affidavit from the party seeking summary judg-
ment, verifying the cause of action and swearing to a belief on
the part of the applicant that the respondent to the application
has no defence to the proceedings. If the applicant fails to swear
to all of the facts necessary to establish the cause of action, that
affidavit will not be sufficient. For example, in Sydney Holdings
Pty Ltd v New Holders Pty Ltd [1938] VLR 217, the affidavit
failed to verify the agreement upon which the plaintiff sued.
As summary judgment denies the other party the right to a
trial in the proceeding, the applicant for summary judgment
must strictly comply with the rules: Theseus Exploration NL v
Foyster (1972) 126 CLR 507.
Test for Summary Judgment

[10.60] The test relating to summary judgment differs slightly
amongst the jurisdictions, and when comparing decisions it is
important to compare apples with apples. In the Federal Court,
the test is whether the defendant has a reasonable prospect of
defending the plaintiff ’s claim: Federal Court Rules 2011 (Cth),
r 31A. The need to consider summary judgment applications in
view of the applicable rules was emphasised by the High Court
in Spencer v Commonwealth (2010) 241 CLR 118. In consid-

ering r 31A, Hayne, Crennan, Kiefel and Bell JJ regarded the
starting point for enquiry as whether
there is a “reasonable” prospect of prosecuting the proceeding, not
an enquiry directed to whether a certain and concluded determina-
tion could be made that the proceeding would necessarily fail.
In general terms, on an application for summary judgment,

once the applicant verifies the claim, the onus is then upon the
respondent to show an arguable defence or that there is a real
question to be tried: Fancourt v Mercantile Credits Ltd (1983)
154 CLR 87. However, this is not a heavy onus, as Dixon J made
clear in Dey v Victorian Railways Commissioners (1949) 78
CLR 62 where his Honour stated that:

A case must be very clear indeed to justify the summary intervention
of the court to prevent a [party] submitting his (or her) case for
determination in the appointed manner by the court with or without
a jury. Therefore once it appears that there is a real question to be
determined whether of fact or law and that the rights of the parties
depend upon it, then it is not competent for the court to dismiss the
action as frivolous or vexatious and an abuse of process.
The Queensland Court of Appeal, in Deputy Commissioner of

Taxation v Salcedo [2005] 2 Qd R 232 underlined the impor-
tance of not improperly denying a party the opportunity for
trial.
Indeed, it is clear that a “question to be tried” may be estab-
lished even though a defendant has “not succeeded in posi-
tively establishing a defence”: Fancourt v Mercantile Credits Ltd
(1983) 154 CLR 87. Fancourt was approved as consistent with
the approach to be taken under the Queensland rules in Gray v
Morris (2004) 2 Qd R 118. In order to defeat an application for
summary judgment, a defendant must produce some evidence
of a defence. For example, a defendant may not rely upon a
mere general assertion of fraud: Brisbane Unit Development
Corporation Pty Ltd v Robertson [1983] 2 Qd R 105.
It is now the case in all jurisdictions that the defendant
may apply for summary judgment against the plaintiff. The test
100 Civil Procedure
remains the same. However, the plaintiff ’s evidence must be

viewed at its best (unless it is inherently incredible). Even if the
defendant is able to give evidence of facts that would defeat the
plaintiff ’s claim, the plaintiff may still be entitled to test that
evidence in cross-examination: Webster v Lampard (1993) 177
CLR 598.
Judgment on Pleadings
or Admissions
[10.70] The court may dismiss the plaintiff ’s claim where the
pleadings fail to disclose a cause of action or right to relief. Under
the older versions of the rules, the demurrer procedure remained

open. If a defendant enters a demurrer he or she alleges that the
plaintiff ’s pleading, as drawn, does not disclose a cause of action
even if all of the allegations of fact were accepted. Demurrer is
now applicable in the High Court jurisdiction only. Now, a party
may simply apply to the court on a summons or application in
the action for an order to terminate an action and give judgment
in circumstances where no reasonable cause of action or defence
is disclosed on the pleading. The process of “striking out” is
not equivalent to summary judgment as the plaintiff ’s proceed-
ing continues to exist and can be rectified by filing a compli-
ant statement of claim. Similarly, if a defence is struck out, the
defendant is in default of defence, and is at risk of having default
judgment entered unless the defence is rectified. This process
allows the court to ensure that parties comply with the rules for
pleading.
If there are admissions in the pleadings, answers to interrog-
atories or correspondence, the court may give judgment with-
out a trial if the admissions of a party show that the party no
longer has a defence. Judgment will only be granted where the
admission demonstrates a clear and unanswerable case: In the
Matter of Registered Trade Marks “Certina” and “Certina DS”
(1970) 44 ALJR 191.
Discontinuance
[10.80] A plaintiff may elect to discontinue proceedings: Federal
Court Rules 2011 (Cth), r 26.12; (ACT), r 1160; (NT), r 25.02;
(NSW), r 12.1; (Qld), r 304; (SA), r 107; (Tas), r 376; (Vic),
r 25.02; (WA), O 23, r 2.
In most jurisdictions this may be done without leave at
any time before the defence is delivered or close of pleadings.
Thereafter, leave to discontinue is required from the court.
Where leave is required, it will be given unless the defendant
would be prejudiced or deprived of some benefit of the pro-
ceedings. Usually a defendant can be adequately protected by
making the leave conditional.

The discontinuance of an action leaves the plaintiff liable to
the defendant for the costs of the proceedings. However, dis-
continued proceedings do not result in a judgment and there-
fore the plaintiff may bring fresh proceedings. The court may
order a stay of a new action until the defendant’s costs of the
previous action have been paid.
11
Errors and Amendment
Introduction
[11.10] There are many opportunities for the litigant to fail to
comply with the rules of procedure when pursuing a claim in
the courts. The most common failures are:
• failure to use the correct form;

• failure to comply with time limits; and
• failure to properly plead a case from the outset.
Most errors and defaults fall back to a basic failure of practition-
ers to comply with fundamental work practices when litigating.
The lawyer who: (1) always obtains detailed instructions from
the outset; (2) undertakes the tasks of litigation in a timely way;
and (3) pays close attention to the court rules, will rarely have
difficulties. Indeed, if close attention to the tasks of litigation
is maintained, counsel can be effectively briefed at any stage of
proceedings for advice.
However, it is inevitable that even the most diligent practi-
tioner will have difficulties. For example, the client who fails to
bring in the documents within the time allowed for a defence
to be entered, or the client who is certain that he or she was
employed by one person, when in fact they were employed by
another. Practitioners will always be faced with the inevitable
problem of clients being unable to afford to pay for steps to be
taken for lengthy periods, for which there is often no remedy.
Irregularities
[11.20] Formerly, a distinction was drawn between errors
that were simply irregularities and errors that resulted in
102
Ch 11: Errors and Amendment 103
the step or action being a nullity. This distinction has been

abolished in all jurisdictions following Re Pritchard (decd)
(1963) Ch 502, where proceedings commenced in the wrong
registry of the High Court of England were held to be a nul-
lity. The distinction is difficult to determine. In Plowman
v Palmer (1914) 18 CLR 339, Isaacs J considered that it was
a question of whether there was jurisdiction to do the act
at the time, or whether it was unauthorised or prohibited.
An authorised act done in an unauthorised manner is an
irregularity and an unauthorised or prohibited act is a nul-
lity: Sydney Cove Redevelopment Authority v Maniaci [1972]
1 NSWLR 453.
Following Re Pritchard (1963) Ch 502, in all jurisdictions, all

defects are now treated as irregularities, which are considered
to be waived if the other party takes a step in the proceedings. If
another party takes objection, they must do so quickly by appli-
cation to the court to set aside the irregular act.
Time and Delay

[11.30] The rules generally provide time limits for all steps
that a party may wish to take. Most court rules contain provi-
sions that apply to the calculation of time, which apply to all
of the time limits under the rules. Time limits set by other stat-
utes must be calculated in accordance with the Interpretation
Acts: McPherson v Lawless [1960] VR 363. It is therefore impor-
tant to look to the relevant parts of the rules in determining
how to calculate time.
When the time for doing an act falls on a date when the court
registry is closed, the act may be carried out on the next day that
the registry is open. In some jurisdictions, time for the delivery
of pleadings (and some other steps) in the Supreme Court does
not run during the court vacation. Where only a short period
is allowed, the rules may provide that days when the registry is
closed are excluded, however, this depends upon the rules in
the particular jurisdiction.
104 Civil Procedure
Usually the day upon which time commences is excluded

from the calculation. Thus, if a party has 28 days to file a defence
after the service of the statement of claim, then if the statement
of claim is served on 1 June, the defence must be filed by the
end of 29 June. If the number of days is expressed as “clear
days” the last day is also excluded from calculation. The terms
“year” and “month” refer to calendar years or months.
A court has an inherent power to abridge or extend
time limits provided for in the rules, and usually has a spe-
cific power under the rules. A court does not have an inher-
ent power to alter time limits set by statute. In determining
whether to alter a time limit, a court must consider the “inter-
ests of justice”: Arthur Andersen Corporate Finance Pty Ltd v

Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104; Hughes
v National Trustees Executors & Agency Co of Australasia Ltd
[1978] VR 257.
Self executing orders

[11.40] A self executing order (sometimes called a “guillotine”
order) is an order by a court that a party take a step or perform
some act, and in default, orders that their action or defence
be struck out. While such orders may be appealing to a busy
court with large numbers of recalcitrant litigants, the potential
for injustice is great if the defaulting party has good reasons to
explain the default.
In FAI General Insurance Co Ltd v Southern Cross
Exploration NL (1988) 165 CLR 268, it was held that the power
of the court to extend time for complying with an order allowed
the defaulting party to apply for an extension of time in which
to comply, even if the time set in the order had expired. In juris-
dictions where the rules do not specifically provide for the court
to extend the time to comply with an order, the court appears
to have power to extend time after the expiration of the period
as part of its inherent jurisdiction: Samuels v Linzi Dresses Ltd
[1981] QB 115.
Delay
Delay in Serving Initiating Process
[11.50] If an initiating proceeding is not served within one
year (or some other period specified in the rules) it becomes
stale and must be renewed to allow for valid service. In the
Federal Court, an application must be served prior to the date
set for the first directions hearing: Federal Court Rules 2011
(Cth), r 8.06. Proceedings will be renewed if the test set out
in the relevant rules is satisfied. In most jurisdictions, this is
“good cause” or “good reason” and not a more stringent test
of “exceptional circumstances”: Finlay v Littler [1992] 2 VR
181 at 186. In the ACT and Qld, the applicant must also be
able to establish that they have made reasonable attempts to

serve the proceedings within the year: (ACT), r 74; (Qld), r 24.
However, this will only be an issue in cases where the limita-
tion period has since expired as the plaintiff may issue fresh
proceedings in other cases. In the NT, SA, Tas, Vic and WA, the
courts have an unfettered discretion to renew a stale originat-
ing process: (NT), r 5.12; (SA), r 39; (Tas), r 107; (Vic), r 5.12;
(WA), O 7, r 1. In NSW, unless the court orders otherwise, ser-
vice of a stale originating process does not invalidate the pro-
ceeding as it is treated as an irregularity: Civil Procedure Act
2005 (NSW), s 63.
Taking a Step after a Delay

[11.60] In some jurisdictions, when there have been no steps
taken for a year, a party may not proceed without first giving
all of the other parties one month’s notice of the intention to
proceed: (NT), r 3.05; (Qld), r 389; (Vic), r 3.06; (WA), O 3, r 7.
In Citicorp Australia Ltd v Metropolitan Public Abattoir Board
[1992] 1 Qd R 592, the Full Court in Queensland considered
the nature of a “step in the proceeding” and determined that
it must be a step to carry the proceeding forward. Acts done in
preparation of litigation, such as the preparation of affidavits,
do not count for this purpose.
106 Civil Procedure
Amendment
[11.70] In some circumstances, a party may amend pleadings as
of right under the court rules. Generally, however, an amend-
ment must be by leave. The principles applicable to a grant of
leave to amend were discussed in Ketteman v Hansel Properties
Ltd [1987] AC 189. The House of Lords held that the court is
guided by where the justice lies in exercising its discretion. The
court declined to limit the circumstances that may be relevant,
but provided a useful summary of the principles:
1. amendments should be allowed so as to enable the real
dispute to be decided;
2. amendments to correct honest mistakes should be allowed

as it is not the function of the court to punish for mistakes
by deciding cases otherwise than in accordance with par-
ties’ rights;
3. amendments should generally be allowed provided that
they will not prejudice the other party; and
4. there will be no injustice to another party if that party can
be adequately compensated by costs.
The stage at which amendment is sought is always a relevant fac-
tor. While amendments prior to trial will generally be allowed,
amendments after the commencement of trial, or after the close
of evidence are less likely to be entertained as the risk of preju-
dice is then great: Gordon v MacGregor (1909) 8 CLR 316. Case
management principles will be relevant, however, they do not
override the primary principle that the court is guided by where
the justice lies. The High Court, in Aon Risk Services Australia
Ltd v Australian National University (2009) 239 CLR 175, con-
sidered a late application for leave to amend. The Aon High
Court specifically disagreed with statements made in the earlier
High Court decision of Queensland v JL Holdings Pty Ltd (1997)
189 CLR 146. In Aon, the High Court said that payment of costs
was not always (as was contemplated in JL Holdings) sufficient
compensation to a party impacted by a late amendment. Rather,
a court must consider all of the factors relevant to an exercise of

its power to permit an amendment, including delay and costs.
Following the decision by the High Court in Aon, the fol-
lowing guidelines for conserving amendment were set out in
Hartnett v Hynes [2009] QSC 225 at [27]:
1. An application for leave to amend a pleading should not
be approached on the basis that a party is entitled to raise
an arguable claim, subject to payment of costs by way of
compensation. (footnotes omitted)
2. The discretion is guided by the purpose of the rules of civil
procedure, namely the just and expeditious resolution of
the real issues in dispute at a minimum of expense.
3. There is a distinction between amendments which are nec-

essary for the just and expeditious resolution of “the real
issues in civil proceedings” and amendments which raise
new claims and new issues.
4. The Court should not be seen to accede to applications
made without adequate explanation or justification.
5. The existence of an explanation for the amendment is rel-
evant to the Court’s discretion, and “[i]‌nvariably the exer-
cise of that discretion will require an explanation to be
given where there is a delay in applying for amendment”.
(footnotes omitted)
6. The objective of the Court is to do justice according to law,
and, subject to the need to sanction a party for breach of its
undertaking to the Court and to the other parties to pro-
ceed in an expeditious way, a party is not to be punished
for delay in applying for amendment.
7. Parties should have a proper opportunity to plead their
case, but justice does not permit them to raise any arguable
case at any point in the proceedings upon payment of costs.
8. The fact that the amendment will involve the waste of some
costs and some degree of delay is not a sufficient reason to
refuse leave to amend.
108 Civil Procedure
9. Justice requires consideration of the prejudice caused to

other parties, other litigants and the Court if the amend-
ment is allowed. This includes the strain the litigation
imposes on litigants and witnesses.
10. The point the litigation has reached relative to a trial when
the application to amend is made is relevant, particularly
where, if allowed, the amendment will lead to a trial being
adjourned, with adverse consequences on other litigants
awaiting trial and the waste of public resources.
11. Even when an amendment does not lead to the adjourn-
ment of a trial or the vacation of fixed trial dates, a party
that has had sufficient opportunity to plead their case may
be denied leave to amend for the sake of doing justice to

the other parties and to achieve the objective of the just
and expeditious resolution of the real issues in dispute at a
minimum of expense.
12. The applicant must satisfy the specific requirements of
rules, such as UCPR 376(4) where it seeks to introduce a
new cause of action after the expiry of a relevant limitation
period.
These guidelines were accepted by the Queensland Court of
Appeal in Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA
267 at [74].
The formal process for amending pleadings is set out in the
rules. The rules allow for the plaintiff to amend, without leave,
a pleading prior to the close of pleadings (or, in Queensland
prior to the filing of a request for trial date): Federal Court Rules
2011 (Cth), r 16.51; (ACT), r 505; (NT), r 36.03; (NSW), r 19.1;
(Qld), rr 377, 378; (SA), r 54; (Tas), r 428; (Vic), r 36.03; (WA),
O 21, rr 1, 3. However, the defendant may apply to the court
to have the amendment struck out. Amendments by leave must
be in accordance with the leave granted. Amendments must be
marked, usually by red ink striking through the words to be
deleted and underlining the words that are added. Copies of
amended documents are filed and served on the other parties.
Limitation Periods
[11.80] With the exception of Tasmania, the rules permit certain
amendments that raise statute barred matters in circumstances
where the relevant limitation period has not expired at the time
of commencement, but expired before the finalisation of the
matter: Federal Court Rules 2011 (Cth), r 8.21; (ACT), r 503;
(NT), r 36.01; NSW: Civil Procedure Act 2005 (NSW), s 65;
(Qld), r 376; (SA), r 54; (Vic), r 36.01; (WA), O 21, r 5. The rules
allow amendments of the following nature:
• to correct a mistake in the name of a party;
• to change the capacity in which the plaintiff has sued the
defendant; and
• to add a cause of action that arose after the proceeding com-

menced, provided that it arises out of the same or substan-
tially the same facts as those originally pleaded.
At common law, prior to the enactment of the aforementioned
rules of court and legislation, an amendment would not be
allowed if it had the effect of defeating a defence based upon
the expiration of a limitation period (amendments to plead-
ings take affect retrospectively). This principle was set forth in
Weldon v Neal (1887) 19 QBD 394 by Lord Esher MR.
In NSW, the principle in Weldon v Neal (1887) 19 QBD 394
was rejected due to the wide power of amendment provided for
under the NSW rules that applied at the time: McGee v Yeomans
[1977] 1 NSWLR 273. Nowadays, in the Federal Court, New
South Wales, Victoria, Queensland and the Northern Territory,
the rule in Weldon v Neal (1887) 19 QBD 394 has been abol-
ished by statute. This only applies to limitations periods that
have expired after the commencement of proceedings. In the
ACT, SA, Tas and WA, the rule in Weldon v Neal (1887) 19 QBD
394 continues, despite the existence of rules that may appear to
indicate the contrary. Further reading on this issue can be found
at pages 319-323 of B Cairns, Australian Civil Procedure (11th
ed, Lawbook Co., Sydney, 2016).
110 Civil Procedure
Names of Parties
[11.90] When a new party is added to existing proceedings, the
addition of the party takes effect on the date that leave to add
the party is obtained. However, a party can seek leave to amend
to correct a mistake in the name of a party if the amendment
would not prejudice any party. The principles for determining
an application to amend the name of a party (that is to correct
a misnomer), which may have the effect of substituting another
party, were considered by the High Court in Bridge Shipping Pty
Ltd v Grand Shipping SA (1991) 173 CLR 231, where McHugh J
considered that there are two types of misnomer:
1. “[T]‌he plaintiff may make a mistake ‘in the name of a party’
because, although intending to sue a particular person

whom the plaintiff knows by sight, the plaintiff is mistaken
as to that person’s name”; or
2. “[T]‌he plaintiff may make a mistake ‘in the name of a party’
because, although intending to sue a person whom the
plaintiff knows by a particular description, eg the driver of
a certain car, the plaintiff is mistaken as to the name of the
person who answers that description”.
12
Discovery
Introduction
[12.10] Discovery, also sometimes referred to as “disclosure”, is
a process of obtaining documents and admissions from other
parties to the litigation and from non-parties. This may be by
inspection of documents, from answers to interrogatories, or

through utilisation of other disclosure tools, such as notices to
admit. In many cases, discovery will be essential to obtaining the
evidence necessary to prove one’s own case. On the simplest
level, it may be that the original contract as signed by the par-
ties is held by the defendant: discovery and production of the
contract will be necessary for the plaintiff to prove its case. On a
more complex level, discovery may yield important diary notes,
books and records, or information leading to further enquiries.
Discovery usually occurs after pleadings close (as the plead-
ings define the issues and thereby the width of discovery).
However, in some cases discovery may be obtained prior to the
close of pleading: commonly, this occurs in defamation cases
against the electronic media where discovery of the tape of the
broadcast is needed to enable the precise words to be pleaded. In
limited circumstances, discovery may be obtained against a per-
son in order to discover the identity of the defendant: Norwich
Pharmacal Co v Customs and Excise Commissioners [1974] AC
133; Re Pyne [1997] 1 Qd R 326.
History
[12.20] Discovery is not a traditional common law remedy, but
rather a creature of equity. However, some limited forms of
111
112 Civil Procedure
discovery have always been available at common law. The com-

mon law provided procedures for the inspection of three classes
of documents: (1) documents under seal that were referred to
in pleadings; (2) documents that a litigant was a party to, in fact
or in interest; and (3) public documents. It was only through
an application to the Court of Chancery that discovery similar
in concept to modern discovery was available. Despite statutory
intervention to extend discovery to the common law, the equi-
table remedy remains an independent source of power: Re Pyne
[1997] 1 Qd R 326.
Purposes of Discovery
[12.30] Discovery has a number of purposes. The most impor-

tant purpose is that which founded the traditional equita-
ble remedy: discovery was said “to scrape the conscience of
the defendant”. In Flight v Robinson (1844) 8 Beav 22, Lord
Langdale MR summarised the position at that time as being that:
According to the general rule which has always prevailed in this
Court, every defendant is bound to discover all of the facts within his
knowledge, and to produce all documents in his possession which
are material to the case of the Plaintiff. However disagreeable it may
be to make the disclosure, however contrary to his personal inter-
ests, however fatal to the claim upon which he may have insisted, he
is required and compelled, under the most solemn sanction, to set
forth all he knows, believes, or thinks in relation to the matters in
question. The Plaintiff being subject to the like obligation, on req-
uisition of the Defendant in a cross bill, the greatest security which
the nature of the case is supposed to admit of is afforded, for the
discovery of all relevant truth, and by means of such discovery, this
Court, notwithstanding its imperfect mode of examining witnesses,
has at all times, proved to be a transcendent utility in the adminis-
tration of justice.
Discovery must be given even if it discloses material contrary to

the party’s case. There are, however, limited situations where a
party may claim privilege from making discovery. On the issue
of privilege, Lord Langdale went on to state that:
It need not be observed what risks attend all attempts to admin-
ister justice, in cases where relevant truth is concealed, and how
Ch 12: Discovery 113
important it must be to diminish those risks, and that if there be

any cases, in which for predominant reasons, parties ought to be
permitted or to be held privileged to conceal relevant truth, those
cases ought to be strictly defined, and strictly limited by authority.
Today, there are three main purposes of pre- trial discovery,

subject to three important restrictions. It is convenient to con-
sider pre-trial discovery as being for the following three general
purposes:
1. identifying the defendant or properly framing a party’s case;
2. ensuring that the parties have access to evidence that may
only be available from their opponent or a party unpre-
pared to provide it to assist with proof of the case, or dam-
aging their opponent’s case; and

3. reducing surprise and thereby limiting issues, ensuring fair-
ness and promoting settlement.
These general purposes are subject to three implicit general
restrictions that may be summarised as follows:
1. the scope of discovery is limited by the facts on which the
parties have joined issue in the pleadings;
2. the use of discovered information is strictly for the purpose
of the conduct of the cause or matter in which discovery
was given; and
3. discovery is subject to limited rights to claim privilege.
Generally, discovered material may only be used for the pur-
pose of the litigation in which they are discovered as a result
of an implied undertaking on the party receiving discov-
ery. To use a document for any other purpose is a contempt
of court: Hearne v Street (2008) 235 CLR 125; Queensland
Cement Pty Ltd v Hardy [1989] 2 Qd R 509. In Hearne v Street
(2008) 235 CLR 125, a director of Luna Park Sydney and an
officer of Luna Park Sydney’s parent company provided a por-
tion of a nearby residents’ affidavit, obtained during proceed-
ings seeking to restrain noise from the reopening of Luna Park,
to the Minister for Tourism, Sport and Recreation in support
of Luna Park’s request that the Minister endorse legislation
114 Civil Procedure
that would be of benefit to Luna Park Sydney. The director and

officer were found to have breached the implied undertaking
not to disclose material obtained during disclosure to non-
parties, in this case the Minister. They were thereafter found in
contempt of court.
The director and officer were, at first instance, found not
personally bound by the implied undertaking. However, the
NSW Court of Appeal held that they were personally bound
by the same undertaking as Luna Park Sydney, and had com-
mitted contempt by disclosing the documents to the Minister.
Although the director and officer successfully sought special
leave to appeal to the High Court, their appeal was dismissed.
The High Court held as follows:

• Directors and officers of a corporate litigant are bound by an
implied undertaking not to use documents and information
obtained during litigation for an ulterior purpose.
• In order to establish a breach of the implied undertaking, it is
only necessary to show that the director or officer knew the
material was produced during litigation. It is not necessary
to prove that the director or officer was aware of the implied
undertaking.
• The implied undertaking may bind other third parties who
receive material obtained during litigation.
In limited circumstances, however, a court may give leave for
a party to use discovered material for other purposes: Bailey v
Australian Broadcasting Corp [1995] 1 Qd R 476.
Legal Practitioners have important duties with respect to the
discovery process. A practitioner is under an ethical obligation
to ensure that full discovery is made. In addition to professional
conduct rules, solicitors in the ACT, NSW and Qld are under
additional obligations to explain disclosure requirements to
their clients: (ACT), r 608; (NSW), r 21.4; (Qld), r 226. If a client
refuses to make proper discovery, the appropriate course for
the practitioner is to seek leave to withdraw and cease acting
for the client: Myers v Elman [1940] AC 282. The consequences
of a failure to make complete discovery can be significant, for

example:
• a party may not be able to rely upon a document produced at
trial if it ought to have been discovered, or suffer an adjourn-
ment with costs;
• a false affidavit of discovery can be significant in assessing the
credit of a party, as the party has, at least in theory, committed
perjury;
• a re-trial may be ordered if important documents were not
discovered and only came to the attention of the other party
after trial;
• a legal advisor who knowingly participates in a failure to pro-
vide full discovery commits professional misconduct; and

• a legal advisor who fails to properly advise a client as to their
obligations to provide discovery may be liable in negligence.
Discovery of Documents
[12.40] Discovery of documents is the most common form of
discovery used in litigation. A document is discoverable if it is
relevant to an issue on the pleadings and is in a party’s posses-
sion (or in some jurisdictions in the party’s power or control).
A document is defined by the court rules and Acts
Interpretation Acts, and may include a video tape: Radio Ten
Pty Ltd v Brisbane TV Ltd [1984] Qd R 113. The principle to
be applied to determine whether a thing is a document is a
functional one –whether the item was intended to convey infor-
mation: Grant v Southwestern & County Properties Ltd [1974]
3 WLR 221. Thus, even without the statutory definitions, data
sticks, computer discs and CDs would be “documents”.
Many practitioners use the term “discovery” to refer to dis-
covery of documents rather than in its wider sense. The process
for discovery of documents is very simple. In most jurisdic-
tions the party seeking discovery delivers a “notice requiring
116 Civil Procedure
discovery” to the other party (using the form set out in the
rules) after the close of pleadings. In some jurisdictions (see
(Qld), r 214), discovery must be made automatically at the close
of pleadings, making a notice unnecessary.
The party making discovery must provide an “Affidavit of
Documents” (or list of documents in some jurisdictions) which
is simply an affidavit setting out all of the documents in the
party’s “possession, custody or power” that relate to a matter
in issue in the litigation. The affidavit normally has two sched-
ules, one listing the documents that may be inspected and the
other listed documents for which the party claims privilege. The
schedules are further divided into documents still with a party
and those no longer with the party, for example a contract deliv-
ered to the other party.
The documents must be described in such as way as to allow
their identification, although it is not necessary to give sufficient
information to allow a view to be formed as to whether a doc-
ument is privileged. If there are large numbers of documents
they may sometimes be usefully placed in bundles, for example
a “bundle of invoices numbered 110900 to 112000”: Walker v
Poole (1882) 21 Ch D 835 (UK).
A party has a right to inspect any document that is discovered
and not privileged. In the Supreme Court of Queensland, where
discovery is automatic, the party must deliver copies of the dis-
covered documents (together with a list of the documents in
the prescribed Form 19) or make them available for inspection
(in a logical order with a person available to explain the order
of documents if necessary and copying facilities) –there is no
requirement for an affidavit of documents. The Qld rules also
allow for disclosure in waves in cases involving voluminous
discovery: (Qld), r 220.
Discovery in the Federal Court is only permitted with the
Court’s leave: the intent of the rules is to prevent unnecessary
discovery and the costs that correspond: r 20.12.
In NSW, discovery may not be required simply by notice to
another party –a court order must be obtained, specifying the
type or class of documents to be discovered: (NSW), r 21.2.

General discovery is not permitted, rather, the court may order
discovery of particular classes of documents. In NSW, discov-
ery and inspection are only allowed in personal injury and fatal
accident cases if the court is satisfied that there are special rea-
sons: (NSW), r 21.8.
Scope of Discovery
[12.50] The scope of discovery is determined by reference to
the issues on the pleadings. The rules in the ACT, NT, Tas, and
WA require discovery of all documents relating to a question
in issue. The width of discovery under rules in this form is
determined by the classic Peruvian Guano test from Companie

Franciere et Commerciale du Pacifique v Peruvian Guano
(1882) 11 QBD 55 where Brett LJ stated:
It seems to me that every document relates to the matters in ques-
tion in the action, which not only would be evidence upon any issue,
but also which, it is reasonable to suppose, contains information
which may –not which must –either directly or indirectly enable
the party requiring the affidavit either to advance his own case or
to damage the case of his adversary. I have put in the words “either
directly or indirectly”, because, as it seems to me, a document can
properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage
the case of his adversary, if it is a document which may fairly lead
him to train of inquiry, which may have either of these two con-
sequences: the question upon a summons for a further affidavit is
whether the party issuing it can shew, that the party swearing the
first affidavit has not set out all the documents falling within the defi-
nition which I have mentioned and being in his possession or con-
trol… In order to determine whether certain documents are within
that description, it is necessary to consider what are the questions in
the action: the Court must look, not only at the statement of claim
and the plaintiffs’ case, but also at the statement of defence and the
defendants’ case…
This test has been approved in the High Court: Mulley v

Manifold (1959) 103 CLR 341. Importantly, the width of dis-
covery of documents is not limited by the admissibility of the
document.
118 Civil Procedure
In the Federal Court, where discovery has been permitted,

r 20.14 mandates the discovery of documents: (1) on which
the party relies; (2) which adversely affect a party’s case; and
(3) which support a party’s case. Similar provisions apply in
Tasmania: (Tas), r 382, and Victoria: (Vic), r 29.01.1.
In New South Wales, the scope of discovery has been lim-
ited to exclude documents that merely lead to a train of
inquiry: National Australia Bank v Idoport Pty Ltd [2000]
NSWCA 8; (NSW), r 21.2.
In Queensland and South Australia, the width of discovery
has been narrowed considerably by specific rules of Court lim-
iting discovery to documents that are “directly relevant”: (Qld),
r 211; (SA), r 136. The limitation upon discovery in these juris-

dictions was primarily to reduce the costs of litigation and
ensure that discovery could not be used oppressively. The test
of relevance used by McHugh J in Palmer v The Queen (1998)
193 CLR 1 at 24, n 1, has been adopted by the court in Southern
Equities Corporation Ltd (in liq) v Arthur Anderson & Co (No
5) [2001] SASC 335:
The word “relevant” means that any two facts to which it is applied
are so related to each other that according to the common course
of events one either taken by itself or in connection with other facts
proves or renders probable the past, present, or future existence or
non-existence of the other.
In Robson v REB Engineering Pty Ltd [1997] Qd R 102, at 105

Demack J found that “directly relevant”:
Should not be taken to mean that which constitutes direct evidence
as distinct from circumstantial evidence. Rather, “directly relevant”
means something which tends to prove or disprove an allegation
in issue.
Commonly, parties will have files of their own and other rele-
vant documents of the following types:
• Diaries, Memos, Emails, Minutes, Tax Returns, etc;
• Financial statements, Credit card statements, cheque butts, etc;
• Travel documents; and

• Reports, working papers and drafts.
Not all of these types of documents will be relevant to all cases.
However, it is important to consider the types of documents
that would be likely to exist as most litigants need considerable
prompting in the discovery process.
Possession or Power
[12.60] Whether a document is in a party’s “possession or power”
is also a difficult issue in some cases. The phrase varies from
jurisdiction to jurisdiction, using terms such as “possession”,
“custody”, “control” and “power”.
Generally “possession” refers to actual physical possession of

documents pursuant to a right to possession of the document.
The term “custody” refers to the simple physical possession of a
document, such as that of an employee. The terms “control” and
“power” refer to an enforceable right to inspect or obtain posses-
sion of the document. An important discussion of the meaning of
“power” appears in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1
WLR 627 where the House of Lords found that a shareholder did
not have power over documents of a company, even though the
shareholder may have more than 50% of the shares and in theory
could appoint directors that would make the company disclose
the documents. Similarly, a party will not be required to discover
documents that it could obtain through Freedom of Information
legislation: Theodore v Australian Postal Commission [1988]
VR 272. However, documents lodged with the Commissioner
of Taxation were discoverable by the party who lodged them
on the basis that the party lodging the documents would have a
prima facie right to copies of the documents it lodged: Palmdale
Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1987] VR 113.
Challenging Discovery
[12.70] The affidavit or list of documents discovered by a party
is considered to be final, except where insufficiency in the
120 Civil Procedure
affidavit or list can be demonstrated. If discovery is successfully

challenged, the court may order that a party simply make fur-
ther and better discovery, or alternatively file an affidavit as to
the existence or otherwise of a list of documents alleged to be
undiscovered. In Mulley v Manifold (1959) 103 CLR 341 the
High Court summarised the positions as follows:
… the insufficiency [of discovery] might appear not only from the doc-
uments but also from any other source that constituted an admission
of the existence of a discoverable document. Furthermore, it is not
necessary to infer the existence of a particular document; it is sufficient
if it appears that a party has excluded documents under a misconcep-
tion of the case. Beyond this, the affidavit of discovery is conclusive.
In the Federal Court, r 20.22 provides that a party may apply to

the court for a more detailed list of documents.

In Victoria, the Civil Procedure Act 2010, s 57, provides that
a deponent may be cross-examined on their affidavit if it is
reasonably suspected that discoverable documents have been
withheld. In South Australia, a party may challenge the affidavit
of documents if there is “reason to doubt” that the party has
made proper disclosure: (SA), r 145. In the ACT, if a court is
convinced that a party has not adequately disclosed discover-
able documents, it may order a party to make a “further and
better affidavit of disclosure”: (ACT), r 606.
Ongoing Duty of Disclosure

[12.80] There is a continuing obligation to provide disclosure of
documents that come into party’s possession following delivery
of the affidavit or list of documents: Federal Court Rules 2011
(Cth), r 20.20: (ACT), r 611; (NT), r 29.16; (NSW) continuous
disclosure applies where disclosure has been ordered; (Qld),
r 211; (SA), r 136; (Vic), r 29.15; (WA), O 26, r 2A.
Interrogatories
[12.90] Interrogatories (referred to as “pre-trial examination by
written questions” in SA) are a set of written questions delivered
by one party, which must be answered in writing by the other,

generally verified by affidavit. The answers given may then be
tendered as evidence in the trial of the matter. The purpose of
interrogatories is to obtain admissions that will assist in proving
a case or damaging an opponent’s case. Interrogatories serve to
limit the issues and provide a simple and inexpensive method of
proof. If damaging admissions are made in answer to interroga-
tories, cases are also more likely to settle.
In some circumstances, interrogatories will be essential as a
particular fact may only be able to be proved by evidence from
an opponent. A classic example of a case where interrogatories
are often allowed is a fatal accident case, where the plaintiff
has no admissible evidence of the circumstances of the acci-

dent: Dunbar v Perc [1956] VLR 583.
In Green v Green (1913) 13 SR (NSW) 126, Simpson J set out
four purposes for which interrogatories are utilised:
1. to obtain further details of the case to be met, in the nature
of a demand for further and better particulars;
2. to obtain admissions from the opposite party to support
the interrogating party’s case;
3. to obtain admissions which damage the opponent’s case; and
4. where the defendant occupies a fiduciary position which
imposes an obligation to keep accounts, to set out a sum-
mary of them in answer to the interrogatories.
However, the process of interrogation has become particularly
technical. This has led to a number of jurisdictions requiring
leave of the court before administering interrogatories. The
specifics of when leave is required vary by jurisdiction, and the
rules should be consulted carefully in this regard. In Qld, there
is a further constraint on the number of questions (30) that may
be asked without the need for additional leave: (Qld), r 229.
To obtain leave, the applicant must generally show that the
interrogatories are reasonably necessary, or in Qld that there is
no other reasonably simple and inexpensive method to obtain
evidence of the facts to which the interrogatories are directed.
122 Civil Procedure
Drawing Interrogatories
[12.100] In determining what interrogatories may be delivered
(what questions may be asked) there are a number of important
principles:
1. Interrogatories must be relevant to the matters in issue in
the pleadings and may not go simply to credit.
2. Interrogatories cannot be directed to simply discovering
the names of witnesses or the way in which the other party
will prove his or her case.
3. Interrogatories must not be “fishing”. That is, questions
must relate to the circumstances of the case as known and
cannot be wide-ranging in the hope of finding something

from which to create a case.
4. Interrogatories cannot “cross-examine” as to the content
of a document –the document itself may be referred to.
However it is permissible to ask for an explanation of some
symbol or writing, confirmation of a signature, or whether
a party has had a document at a particular time, etc. Only
if a document is lost or destroyed may interrogatories ask
after its contents: Sharpe v Smail (1975) 49 ALJR 130.
It is important to be careful in drafting the interrogatories
delivered, as parties generally receive only one opportunity to
interrogate.
On a practical level, the most common failings of those draw-
ing interrogatories are:
• a failure to limit the questions to the time relevant to the
case (eg asking if the plaintiff has ever seen the defendant
rather than limiting the question to the time in issue on the
pleadings);
• questions containing assumptions as to facts that have not
been admitted (eg the classic objectionable question: when
did you stop beating your spouse?); and
• multi-part questions that should be divided into a number of
discrete questions.
Answering Interrogatories
[12.110] A party must answer interrogatories to the best of his
or her knowledge, information and belief. If a party has a right
to information held by employees or agents, the party must
make enquires of those persons for the purpose of answering
the interrogatories. The interrogatories must then be answered
in light of the information obtained. In Sharpe v Smail (1975)
49 ALJR 130, Gibbs J explained this principle as follows:
It is not enough to say that he [the party answering] has no knowl-
edge, because he is bound also to answer according to information
acquired from servants or agents who have gained it in that capacity,
and where appropriate his answer must show that he has made all
proper inquiries and that having made them he has no information

enabling him to answer further … The answer to these interrogato-
ries is insufficient: it does not show that the first defendant has made
all proper enquiries and is answering to the best of his knowledge,
information and belief … Belief is not the same as knowledge and
a party cannot truthfully swear that he has no belief based on infor-
mation in his possession simply because he does not know that the
information is true. Although he is not bound to say that he believes
what he does not he is not entitled to treat any information that
he may receive with baseless suspicion, refusing to entertain belief
unless it has ripened into certain knowledge. He cannot by refusing
to believe information when there is no reason to doubt its truth
escape from his obligation to answer to the best of his knowledge,
information and belief. Moreover, the fact that information comes
from a suspect source will not always be enough to render it wor-
thy of disbelief; for example, it may be supported by other credible
material.
However, the information of the servant or agent must be gained

in the course of their employment or contract. Thus, a trans-
port employee who was driving a truck along a road and saw
an accident at a level crossing was found not to have obtained
the information in relation to something he was employed to
do; it was not his job to observe other drivers: Commissioner
for Railways v South Queensland Transport Pty Ltd [1950]
QWN 45.
A responding party must make reasonable enquiries to
answer an interrogatory. In the ACT, the rules extend to require
124 Civil Procedure
a responding party to make reasonable enquiries of employees

and agents: (ACT), r 634.
Objections to Answering
[12.120] Objection may be taken to the interrogatories as a
whole, if the bulk of the questions are objectionable, or to par-
ticular questions. If an objection is taken to a particular ques-
tion, the grounds of the objection should be set out. Normally,
all possible grounds are set out in the objection.
In most jurisdictions, the grounds for objecting to inter-
rogatories are prescribed by the relevant court rules. In the
Federal Court, NSW, NT and Qld, the only grounds for refusal
are contained in the rules: Federal Court Rules 2011 (Cth),
r 21.03; (NSW), r 22.2; (NT), r 30.07; (Qld), r 233. Aside from
relevance and technical objections (as discussed above) com-
mon examples of objectionable interrogatories are discussed
below.
Scandalous
[12.130] Scandalous interrogatories are objectionable. A good
example of scandalous interrogatories appears in Kemble v
Hope [1894] 10 Times L R 254, where the plaintiff, in an action
alleging that a defendant had falsely represented that a tenant
was of good credit asked whether the tenant was “… a chaste
woman, of good moral character”.
Unfair Purpose
[12.140] Similarly, an interrogatory which is not bona fide will
not be allowed. For example, an interrogatory designed to
obtain an acknowledgment of a debt, to overcome a limitation
period is objectionable: Lovell v Lovell [1970] 1 WLR 1451.
Interrogatories designed to discover the trade secrets of another
party may be oppressive: American Flange & Manufacturing Co
Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193.
Oppression
[12.150] Interrogatories may be objectionable on the basis of
oppression. For example, in Alexander v Fitzpatrick [1981]
Qd R 359 a set of 54 interrogatories of multiple parts, total-
ling 586 questions, on quantum in a personal injury case were
struck out.
Privilege
[12.160] A common ground for objection, the concept of privi-
lege, which applies to discovery in general, is discussed below.
Inspections and Examinations

[12.170] Inspection of discovered documents is provided for in

the rules relating to the discovery of documents. The rules also
provide for inspection of things and places relevant to the matters
in issue on the pleadings. Thus, it is not uncommon for a plaintiff
in a personal injury action against an employer to seek an inspec-
tion of the workplace or machinery where the injury occurred.
A party may also request another party to undergo a medi-
cal examination. In some jurisdictions there are statutory pow-
ers for the courts to make such orders (these are common in
compulsory motor vehicle and workplace insurance schemes).
However, the court has an inherent power to stay proceedings
if a party refuses to undergo a medical examination.
Notice to Admit
[12.180] A notice to admit is a notice to another party requiring
them to admit facts relevant to the pleadings. In some jurisdic-
tions, a failure to answer a notice to admit results is an implied
admission in the terms of the notice. Thus, a notice to admit can
place considerable pressure upon the opposing party.
If the admission is not made and the facts are ultimately
proven, then the costs of proving the facts outlined in the notice
126 Civil Procedure
may be ordered against the party failing to make the admission,

regardless of the ultimate outcome of the case.
Thus, although a “notice to admit” does not directly force
any action by an opponent, it increases the pressure upon an
opponent to make admissions of facts that are not seriously in
issue. Any admission made may also be available to assist in an
application for judgment on admissions.
Non-party Discovery
[12.190] Discovery of documents may also be sought from a
non-party. As this is a substantial interference with the rights
of a non-party, litigants must first pursue all other avenues in

an effort to obtain the information sought by non-party discov-
ery: Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R
167. In jurisdictions where the rules provide a process for non-
party disclosure, that process, rather than a subpoena, should
be utilised: Re Leighton Contractors Pty Ltd v Western Metals
Resources Ltd [2001] 1 Qd R 261.
Other Forms of Discovery

[12.200] In all jurisdictions, a Statement of Loss and Damage
must be provided in personal injuries claims.
In the NT and Victoria, the rules provide for oral discovery in
lieu of interrogatories if the parties consent: (NT), r 31.02; (Vic),
r 31.02. However, this option is rarely agreed to. In the United
States, oral discovery (taking depositions) is a significant part of
the pre-trial process.
Objections Relevant to All Forms

of Discovery
[12.210] Documents need not be produced for inspection,
or interrogatories answered, if the document or answer falls
within one of the exceptions to discovery. The most common

exception in civil litigation is legal professional privilege, how-
ever other privileges exist and an exception exists to prevent
oppression.
Privilege
[12.220] There are five types of privilege: legal professional
privilege; privilege against self-
incrimination; public interest
privilege; without prejudice communications and statutory priv-
ilege. Each of these types of privilege is a basis for refusing to
answer interrogatories, or providing inspection of documents.
These areas are more properly considered in the context of an
evidence textbook, but given their application presently, will be

discussed briefly.
Legal Professional Privilege

[12.230] Legal professional privilege covers many (but not all)
communications between a lawyer and client. Such a privilege
promotes frank and complete disclosure to legal advisers by cli-
ents. This enables litigation to be properly conducted by law-
yers on behalf of clients. It is in the general public interest that
transactions and litigation be conducted through lawyers. There
are two situations where such privilege will arise: (1) when
confidential legal advice is provided to a client; and (2) in the
conduct of litigation. Legal professional privilege is not merely
a rule of evidence: Baker v Campbell (1983) 153 CLR 52. In
Daniels Corp International Pty Ltd v Australian Competition
and Consumer Commission (2002) 77 ALJR 40, the High Court
confirmed that legal professional privilege is a principle of
substantive law.
The privilege that attaches to confidential legal advice (and
the communications to enable such advice to be given) is often
confused with the privilege that attaches to communications
for the purpose of anticipated or pending litigation. The two
areas represent separate basis for claims, and no anticipated
litigation is necessary for the former: Weir v Greening [1957]
128 Civil Procedure
VR 296. However, the privilege attaching to confidential legal

advice will not cover all communications with a solicitor. For
example, a solicitor’s trust account ledgers usually do not reveal
confidential legal advice: Allen, Allen & Hemsley v Deputy
Commissioner of Taxation (1989) 20 FCR 576. Similarly many
conveyancing file notes and other “transaction” work carried
out by solicitors will not be for the purpose of giving confiden-
tial legal advice.
The High Court’s decision in Esso Australia Resources Ltd v
Commissioner of Taxation (1999) 201 CLR 49 firmly entrenches
the dominant purpose test as the test to be used in determining
whether legal professional privilege can be taken at common
law in Australia. The Esso Australia decision also creates a con-

sistency between the common law and the Evidence Act 1995
(Cth) in determining whether a communication is privileged. In
Esso Australia, the High Court, by a 4-2 majority, broadened the
scope of legal professional privilege, overturning the decision
in Grant v Downs (1976) 135 CLR 674 (which created a “sole
purpose test”).
Legal professional privilege may be waived by the client (not
the legal advisor). Waiver may occur expressly, by failing to claim
privilege or by implication. Where there is inadvertent disclo-
sure, significant problems arise as to the state of the privilege on
the privileged material: see generally Goldberg v Ng (1995) 185
CLR 83. In Glengallan Investments Pty Ltd v Arthur Andersen
[2002] 1 Qd R 233, the Queensland Court of Appeal concluded
that it was necessary for a “lawyer” to be admitted to practice
for a common law claim of legal professional privilege to be
sustainable.
Privilege against Self-Incrimination

[12.240] A party is not required to disclose material that may
incriminate the party. This substantive rule of law will apply even
in cases where the party claiming the privilege stands in a fiduci-
ary relationship: Reid v Howard (1995) 184 CLR 1. A party is not
required to deliver an affidavit or list of documents that reveals
the existence of incriminating documents if the mere existence

or possession would amount to self-incrimination: Griffin v
Sogelease Australia Ltd (2003) 57 NSWLR 257.
In considering a claim for privilege against self-incrimination,
the mere fact that the claim is made is not conclusive: the court
must consider the claim. To succeed in the claim, the party must
show that there is a reasonable ground to apprehend danger
of prosecution: Triplex Safety Glass Co Ltd v Lancegay Safety
Glass (1934) Ltd [1939] 2 KB 395. The offence must be a sub-
stantial one and the risk of prosecution real and not fanciful.
In some jurisdictions, this is overcome by conferring upon the
court a statutory power to grant an indemnity certificate cover-
ing the incriminating information: Federal Court, ACT, NSW, Tas

and WA.
While some jurisdictions allow the court to give an indem-
nity certificate, the device of ordering discovery on condition
that the material not be provided to prosecuting authorities, is
not available without statutory authority: Reid v Howard (1995)
184 CLR 1.
The right to claim privilege against self- incrimination
was thought to extend to corporations until the decision of
Environment Protection Authority v Caltex Refining Co Pty Ltd
(1993) 178 CLR 477. In some States and Territories, there are
also legislative provisions which state that privilege against self-
incrimination is not available to corporations.
A claim for privilege against self-incrimination may also be
made if the discovery would tend to expose the party to a for-
feiture or penalty. If the proceedings are solely for the recovery
of a penalty or forfeiture, no discovery need be made by the
defendant: R v Associated Northern Collieries [1910] HCA 61.
Public Interest Privilege

[12.250] Public Interest privilege (formerly referred to as Crown
Privilege) extends beyond government departments to include
instrumentalities carrying out public administration. Thus, the
130 Civil Procedure
privilege was found to extend to the Law Institute of Victoria’s

statutory disciplinary duties: Law Institute of Victoria v Irving
[1990] VR 429.
In order to determine if the privilege can be claimed, the
court will examine the document: Sankey v Whitlam (1978)
142 CLR 1. While a certificate from the Minister that disclosure
would not be in the public interest is strong evidence, the cer-
tificate is not conclusive.
In deciding a claim, the court must determine if the discov-
ery is relevant to the proceedings. If the material is relevant or
likely to be relevant, the court must weigh the competing inter-
ests of the citizen and the public interest. Commonly the issue
arises with respect to confidential government papers such as

criminal intelligence reports, policy documents at a high level
and cabinet documents. In considering the issue, Gibbs ACJ
provided the following guidance in Sankey v Whitlam (1978)
142 CLR 1:
The question is whether the disclosure of the documents would
be contrary to the public interest. Confidentiality is not a separate
head of privilege, but may be a material consideration to bear in
mind when privilege is claimed on the ground of public interest …
I consider that although there is a class of documents whose mem-
bers are entitled to protection from disclosure irrespective of their
contents, the protection is not absolute, and it does not endure for
ever. The fundamental and governing principle is that documents
in the class may be with held from production only when this is
necessary in the public interest. In a particular case the court must
balance the general desirability that documents of that kind should
not be disclosed against the need to produce them in the interests
of justice.
…
While an affidavit sworn by a Minister or departmental head is not
conclusive, it appears to me to be still highly desirable that the per-
son who swears the affidavit should himself have seen the docu-
ments in question.
…
Finally, the power of the court to inspect the document privately is
clear, and once a court has decided, not withstanding the opposition
of a Minister, that on balance the document should probably be pro-

duced, it will sometimes be desirable, or indeed essential, to exam-
ine the document before making an order for production.
Without Prejudice Communications

[12.260] Communications made in a genuine attempt to settle a
dispute are generally covered by “without prejudice privilege”.
It is usual to preface such communications with the words
“without prejudice”. The law provides for this particular priv-
ilege to foster negotiations that may settle litigation: Field v
Commissioner for Railways for New South Wales (1957) 99 CLR
285. While prefacing negotiations with the words “without prej-
udice” is usual, it is not always necessary for the document or

discussion to be covered by the privilege; for example, a letter
in a series of “without prejudice” communications.
The Queensland Court of Appeal has prevented disclosure of
statements made by a party in mediations to induce settlement
as “without prejudice communications” which cannot be used
even if they are contrary to another related proceeding involv-
ing the same factual matrix: Mercantile Mutual Custodians Pty
Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001]
1 Qd R 276.
While protection is given to “without prejudice negotia-
tions”, they may still be admissible when they evidence a fraud
on the court, for example in JA McBeath Nominees Pty Ltd v
Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121.
Section 131 of the Uniform Evidence Law (applicable in the
Federal Court, the ACT, NSW, NT, Tas and Vic) addresses the
“Exclusion of evidence of settlement negotiations”.
Statutory Privilege
[12.270] Additional forms of privilege are created by statutory
provisions (eg, a privilege against answering questions concern-
ing adultery), and vary throughout the jurisdictions.
132 Civil Procedure
Oppression
[12.280] Discovery may be oppressive if it imposes so great a
burden on that party that it is not reasonably required for the
proper conduct of the litigation: Derham v AMEV Life Insurance
Co Ltd (1978) 20 ACTR 23.
13
Settlement
Introduction
[13.10] The traditional adversarial approach to litigation has
been undergoing significant renovation in modern times, in
Australia. Alternative dispute resolution (ADR) has been a
very important feature of this change, and the vast majority of

civil cases commenced will settle before trial, either following
the parties engagement in an ADR process, or following the
exchange of settlement offers between the parties. Thus, an
understanding of ADR processes (see Chapter 18 Alternative
Dispute Resolution) and the impact of making an offer to settle,
and of the methods of settling cases is of central importance.
In many cases, settlement can also be seen as an opportunity
to obtain a better solution than that available by court order as
a timely settlement may preserve an ongoing business or family
arrangement. Indeed, the provisions allowing for formal offers
to settle or compromise are in place to induce settlements.
In general terms, the rules impose significant costs pen-
alties on a party that rejects an offer and then does no bet-
ter than that offer on judgment. Settlement offers, therefore,
need to be carefully considered by lawyers and their clients,
balancing the likelihood of a particular outcome (and possi-
ble costs penalties) against the content of a particular offer.
Informal settlement offers may also be made outside the rules
of court. The procedure for such offers, developed at com-
mon law and referred to as Calderbank letters/offers, may
carry similar costs consequences for a party that ill-advisedly
rejects an offer.
133
134 Civil Procedure
Payment into Court

[13.20] Until recent times, the court rules only provided for
one method of making a formal offer to settle a case: this was
the process of the defendant paying into court a sum of money
which the plaintiff could accept or reject. If the plaintiff did not
accept the sum paid in and judgment was for the same amount
or less, the defendant would usually obtain an order against
the plaintiff for costs incurred from the date of the payment
into court. The Registrar of the Court would hold the sum in an
account pending the outcome of the litigation. This method of
settlement is retained in the NT and Tas.
This procedure had a number of significant difficulties, most

importantly:
• many defendants were reluctant to have large sums held in a
Registrar’s account, unable to be used;
• many cases involves disputes that were not limited to a sim-
ple money payment; and
• the rules did not provide a formal procedure for the plaintiff
to make an offer to the defendant.
Calderbank Offers
[13.30] Some of the difficulties associated with payment into
court as a settlement mechanism were overcome by the use
of the Calderbank offer, named after the English case that
gave the tactic prominence. A Calderbank offer is simply an
offer to settle that is made in a letter expressed to be “without
prejudice, save as to costs”. This means that the party intends
to rely upon the letter in any costs argument if the result of
the litigation is as favourable, or more favourable to the party
than the Calderbank offer: Calderbank v Calderbank [1975]
3 WLR 586. That is, the offer in the letter may not be used in
evidence during the trial, but may be tendered on the issue of
costs following trial.
Ch 13: Settlement 135
However, a successful plaintiff could not improve his or her

costs position by a Calderbank offer, unless the plaintiff was in
a jurisdiction where costs did not usually follow the event (such
as the Family Court) as a successful plaintiff usually obtains a
costs order in any event.
Calderbank offers have become less common since the rules
have been altered to allow for written offers to settle which
have the same, and sometimes greater, effect. There remains
some dispute as to whether a Calderbank letter may be relied
upon in jurisdictions where there is a specific procedure avail-
able under the rules: Biernacki v Klenka (1988) 80 ACTR 1.
In all jurisdictions except the NT, there is no limitation on the
types of cases an offer of compromise may be served in, sug-

gesting that Calderbank offers will have lesser utility in those
jurisdictions. In the NT, there may be greater scope for reliance
on Calderbank offers, as offers of compromise are permitted in
actions for damages only.
Rejection of a Calderbank offer in circumstances where a
party is ultimately unsuccessful at trial is only one factor to be
considered in making an order for costs. The totality of the sur-
rounding circumstances at the time of rejection need to be con-
sidered: Grice v Queensland [2005] QCA 298.
Formal Offers to Settle

[13.40] All jurisdictions now have provisions for formal offers to
settle. The rules provide for the parties to make a formal offer,
in writing. The offer must remain open for the minimum period
set out in the rules. If a party wishes to withdraw an offer before
it expires, an application must be made to the court (except in
SA where the offer does not need to be open for any defined
period and can be withdrawn at any point prior to acceptance,
but must be made 21 days prior to commencement of trial). An
offer is not capable of acceptance after judgment, and if made
in accordance with rules, must be considered by the court in
relation to costs.
136 Civil Procedure
If the plaintiff is as or more successful than an offer made by

the plaintiff, the defendant will ordinarily be ordered to pay all
of the plaintiff ’s costs on a solicitor and own client basis: see
Chapter 15 Costs. If the defendant is as or more successful than
an offer, the defendant usually obtains an order that the plain-
tiff pay the defendant’s party and party costs from the date of
the offer. It is important to remember that the interest which
may be allowed on a judgment must be considered in deter-
mining whether the judgment is equal to or greater than the
offer: Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55.
Unfortunately, too few parties involved in litigation take the
opportunity to make a reasonable offer of compromise early
in the process, despite the pressure that this may bring to the
opponent later in the litigation.
Settlement
[13.50] Where settlement results from the acceptance of a for-
mal offer under the applicable rules, the settlement is treated as
an agreement between the parties to settle and brings the case
to an end with respect to the issues covered by the settlement,
and the claim is considered satisfied and incapable of resurrec-
tion in a subsequent proceeding.
Where settlement results from the informal agreement of the
parties, there are a number of ways of formalising the settle-
ment agreement. The settlement can be formalised by a con-
sent order or judgment of the court, however in many cases a
defendant will wish to avoid a formal judgment. The various
methods commonly used to formalise a settlement (other than
by court order) are described in Green v Rozen [1955] 1 WLR
741 by Slade J:
The first method which I have found to be very useful where the
terms of compromise consist of an agreement by the defendant to
pay a specified sum of money by specified instalments on specified
dates is to give judgment for the total amount agreed to be paid
coupled with a stay of execution so long as the instalments are paid
in accordance with the terms agreed …
Ch 13: Settlement 137
The second method, which is no doubt more appropriate when the

terms of settlement are not so straightforward as the mere payment
of an agreed sum of money by specified instalments, is to secure
an order of the court made by consent that the plaintiff and the
defendant shall do the things which they have respectively engaged
themselves to do by the terms of settlement. In such a case the order
would take this form. There would be the title and the preamble,
and then the order would recite, the terms having been agreed
between the parties: “It is ordered that (a) the defendant do,” etc.,
“the plaintiff do.” etc., making each of the agreed terms an order of
the court that it shall be carried out.
The third method I have known is what has become known as the
Tomlin form of order … –this is the Tomlin form of order –“And
the plaintiff and defendant having agreed to the terms set forth in
the schedule hereto, it is ordered that all further proceedings in this
action be stayed” now these are the important words –“except for
the purpose of carrying such terms into effect. Liberty to apply as to
carrying such terms into effect.” …
The fourth method I have come across is an order of the court made
by consent staying all further proceedings in the action upon the
terms agreed and endorsed on counsels’ briefs. In that method there
is an order of the court staying all further proceedings, but in the
fifth method, that adopted in the present case, there is no order of
the court at all, the court merely being told by counsel that the case
has been settled upon the terms endorsed on counsels’ briefs. That
method I have known to be supplemented by a request for leave
to withdraw the record, and I think in the case of a trial by jury a
request for the withdrawal of a juror, although I believe that in the
latter case the action can be set down and re-heard if the terms are
not compiled with.
It will perhaps emphasize which is the easiest method of disposing
of an action to consider what steps can be taken in each case to
enforce the terms if they are not compiled with. The first one seems
to be simplicity itself. The court has already given judgment and the
stay of execution lasts only so long as the agreed terms are compiled
with. If there is a failure to comply with them the party who suffers
merely has to proceed to levy execution.
In the second case, the court has made an order in the terms I have
indicated, that the plaintiff do so-and-so, the defendant do so-and-so,
and if the plaintiff or the defendant, as the case may be, fails to carry
out the court’s order it is only necessary for application to be made
to the court and the court will enforce it, what each party is to do or
refrain from doing being part of the order itself.
The third case is the Tomlin form of order with which I have already
dealt, and parties who choose that form of order may, if the terms
138 Civil Procedure
are not complied with, find contentions raised against the enforce-
ment of it, the nature of which I have already indicated.
In the fourth case the court, at the request of the parties, has made
an absolute and unqualified order for a stay of all further proceed-
ings. I say “absolute and unqualified” in contradistinction to the
form of order where it is qualified by the words “save for the pur-
pose of carrying the terms into effect”.
The fifth method, which is the only one I propose to decide, is the
one adopted in the present case. The court has made no order of any
kind whatsoever, and having considered such authorities as I have
been able to find, I arrive at the conclusion that in those circum-
stances the court has no further jurisdiction in respect of the original
cause of action, because it has been superseded by the new agree-
ment between the parties to the action, and if the terms of the new
agreement are not compiled with the injured party must seek his
remedy upon the new agreement…
Infants and Those under a Disability

[13.60] Settlements in cases involving an infant or a person
under a disability must be sanctioned by the court (or, in Qld,
the Public Trustee may also perform this role). This involves
making an application to the court setting out the terms of the
settlement and providing sufficient materials to allow the court
to make a determination as to whether the settlement is a rea-
sonable one in the circumstances. The process is discussed in
detail by Lee J in Fowler v Gray [1982] Qd R 333.
Enforcement of a Settlement
[13.70] When an action is compromised by agreement, the
agreement is a contract. In simpler cases, a party may seek to
enforce the agreement summarily (by a summons seeking a
judgment in the original proceedings). However, in more com-
plex cases the party seeking to enforce the agreement may have
to commence fresh proceedings relying upon the agreement.
14
Trial and Judgment
Introduction
[14.10] In this chapter, we examine what was traditionally the
natural goal of any litigated dispute, the trial. The rules regulate
requests for trial dates, adjournments, and other procedural
matters. The trial is the phase of the process where all of the
evidence of the parties is presented to a court for a determina-
tion of the facts, followed by an application of the law, resulting
in a judgment. Trials are therefore appropriate whenever there
is a dispute of fact to be determined. If there are no disputes of
fact, the matter may be determined summarily, after argument
by the parties as to the law (following an application for sum-
mary judgment, for example).
The manner and type of evidence presented at trial is also
governed by application of the common law and the Evidence
Act that is applicable in the relevant jurisdiction. This topic, while
of vital importance to the operation of the trial itself, is more
appropriately dealt with in the Evidence texts. A brief overview
of the law of evidence may be obtained by reading R Wilson,
Nutshell: Evidence (4th ed, Lawbook Co., Sydney, 2013).
At the conclusion of a trial, the court delivers a “judgment”,
either directly or at the request of a party. A judgment is the final,
binding decision of a court in a proceeding. Judgments are not
lightly set aside. Unless one of the limited grounds for setting
aside a judgment can be made out (eg, fraud), a party must either
accept the judgment or appeal the decision to a higher court.
Traditionally, a judge sat with a jury to hear trials, giving the
jury directions as to the law and allowing the jury to determine
139
140 Civil Procedure
the facts and reach a verdict. For this reason, trial is traditionally
one continuous oral hearing of the evidence and argument. In
the civil context, trials are now usually heard by a judge alone.
Modern case management principles may also impact upon
the way in which a trial is heard, such as requiring evidence or
argument to be placed before the court in a written format: see
Chapter 2 Case Management.
Preparing for Trial

[14.20] Once a party has completed all of the interlocutory
steps, the next step in any action is to have the case heard. At
this point it is prudent to obtain an “Advice on Evidence” from

counsel to ensure that the pleadings are in order and that all of
the evidence necessary to prove the case is available.
In preparing for the trial date, the availability of witnesses is
crucial. Witnesses should usually be subpoenaed to attend at
the trial. A subpoena may be issued in two forms: a subpoena
duces tecum (to attend and produce documents) and a sub-
poena ad testificaudum (to attend to give testimony). For a
subpoena to be enforceable, the witness must be served with
the subpoena and provided with appropriate conduct money to
cover their travel costs in attending: Re AH Prentice Ltd [1930]
QWN 11. With the leave of the court, evidence may be called
by telephone or videolink. However, leave should be obtained
prior to the trial as it may not always be granted, depending
upon the importance of the evidence and proposed cross-
examination. Generally, a court will grant leave for experts to
give evidence by telephone as their credibility is not normally
in issue. In addition to the rules of court, many jurisdictions
have Practice Directions relating to telephone and videolink evi-
dence. Reluctant witnesses may need to be issued with a “Notice
to Attend” to secure their presence at the hearing.
It may also be necessary to serve a “Notice to Produce” on
other parties to have them produce documents that have been
discovered. If documents are sought from others, a subpoena to
Ch 14: Trial and Judgment 141
produce the documents may be necessary. If answers to inter-

rogatories are to be tendered, the particular interrogatory and
answer should be retyped on a separate sheet for tendering.
In cases where the evidence is to be by affidavit, the affida-
vits must be prepared, filed and served on the other parties
before trial.
Mode of Trial
[14.30] There are various methods that may be adopted for the
trial of an action. Civil trials are now commonly heard by a judge
alone, however either party may still elect to have many cases
heard by a judge and jury. In some cases, other options such as

having the matter being heard by a referee, or splitting the trial
to enable determination of some issues after a first hearing, are
appropriate.
Jury Trials
[14.40] While a right to trial by jury is trite law in the criminal
courts, a similar position does not apply to civil litigation. Trials
are conducted by judge alone, unless a party requests a trial by
jury. Despite a party’s desire to have a jury trial, the court retains
the discretion to order trial by judge alone. In the Federal Court,
ACT, and Tas, trial by jury has essentially been abandoned for
civil matters. In other States and the NT, the rules are complex
and depend upon the nature of the particular case; a trial may
be permitted for a common law claim, but not for equitable
relief. There is no option for a jury trial in the Family Court.
In jurisdictions where a party is still able to ask for a jury trial
(subject to the court’s power to order a trial by judge alone),
the party must elect this mode of trial in the originating process
((Qld), r 472; (Vic), r 47.02). Alternatively, a party seeking a jury
trial may make an application to the court asking for an order
for a jury trial (except in the ACT). While there are a number of
cases where parties have applied for trial by jury, none appear
142 Civil Procedure
to have been successful. It appears that trial by jury will rarely,

if ever, be granted as a matter of judicial discretion: see Snell v
Sanders (1994) 122 ALR 520. In all jurisdictions, a court has the
power to dispense with a jury, in various circumstances (such as
where the assessment of damages will be complex, or for rea-
sons of fairness), even if a party has elected to have a jury trial.
Referees and Arbitrators

[14.50] The court rules in the Federal, State and Territory courts
all provide that the court may appoint referees or arbiters to
report to the court on issues arising in the proceeding. In
the ACT, NT, SA, Vic and WA, the referee may also be asked to
determine part or all of the proceeding (it is not entirely clear

whether (Qld), r 501 permits a referee to make a final deter-
mination). It is common for a referee to be appointed for the
taking of accounts in partnership and trust disputes, where the
dispute will involve a prolonged examination of documents
or accounts. Alternatively, a referee or arbitrator may be more
appropriate in cases involving technical or scientific issues.
Generally, a referee will simply report on the findings of fact
that the referee has made, whereas an arbitrator will make a
determination of the issues of the parties. While the courts have
traditionally been reluctant to order the appointment of refer-
ees without the consent of the parties (other than in cases for
accounts), there is increasing pressure on the limited resources
of the courts to deal with complex factual disputes, such as
those that arise in building cases and partnership disputes.
Splitting Trials
[14.60] In some cases, it is also convenient for there to be a trial
in relation to a single, or limited number, of issues. Sometimes
a preliminary point may be decided “on the papers”, and with-
out an oral hearing in order to conserve resources and save
costs. Generally, however, it is an unusual course in the courts
as it is thought to rarely provide any real savings: Evans Deakin
Industries Ltd v Commonwealth [1983] Qd R 40. However, there
are examples of cases where the whole of an action may be deter-

mined by a finding on a particular issue. For example in O’Neill
v Mann (1994) 49 FCR 370, a defence of absolute privilege in a
defamation action was tried as a preliminary issue: the defendant
was successful and this disposed of the whole of the matter.
Speedy Trials
[14.70] A court has the power to order that a matter be tried
speedily. This means that the matter moves to the top of the
list of matters awaiting a trial date. Orders for speedy trial can
provide a significant tactical advantage to the better prepared or
funded litigant. Similarly, such orders may overcome the prej-
udice inherent in the delays involved in obtaining a trial date

in most courts. In jurisdictions where there are comprehensive
case management schemes, the need for a speedy trial may
also impact upon other interlocutory processes: see generally
As a speedy trial order involves all litigants on the trial list
(as other cases may lose their priority) as well as the parties to a
particular matter, it may not be ordered simply on the consent
of the parties. The court must be satisfied that some cogent rea-
son exists for affording the matter priority over other litigants
awaiting trial, for example age or infirmity of a party or impor-
tant witness: Palmos v Georgeson [1961] Qd R 186.
However, an order for speedy trial will not be a proper basis
for denying a party the right to a jury trial if a party has already
elected to have the case heard by a jury, in circumstances where
that election is permissible: Kelly v Kelly [1990] 2 Qd R 147.
Venues, Trial Dates and

Adjournments
Venue
[14.80] The rules govern venue, usually the place chosen by
the plaintiff by endorsement of the place of trial on the writ
144 Civil Procedure
or statement of claim: Federal Court Rules 2011 (Cth), r 2.02;

(NSW), r 29.3; (NT), r 5.08; (Qld), r 35; (SA), r 122; (Tas), r 554;
(Vic), r 5.08; (WA), O 32, r 1. It is open to either party to apply
for a change of venue for the trial. In courts with a large geo-
graphical jurisdiction, such as the Family Court, venue will
often be an issue to be determined by considering the balance
of convenience: Ryan v Harrison [1957] VR 210. Relevant con-
siderations include:
• the location of the witnesses and the capacity of the parties
to attend a trial that may be held some distance from where
they reside;
• the delay, if any, in obtaining a date for hearing in any particu-
lar location; and,

• in jury cases, the need to ensure a fair trial of a matter.
Obtaining a Trial Date

[14.90] Once a case is ready for trial (when all of the interloc-
utory procedures and conferences are completed), the parties
will require a trial date. While the processes of obtaining a date
for the trial of a matter differ from court to court, generally it
involves the parties filing a document such as a “certificate of
readiness”, certifying that a matter is ready for trial, and estimat-
ing the expected length of trial. Obtaining a trial date will often
be subject to case management guidelines that are applicable to
the particular case: see Chapter 2 Case Management.
The case is then added to a list of cases awaiting trial, called
the “call-over list”. The judges have gazetted “sittings” that are
periods of time where they will hear trials at particular loca-
tions. Before a “sitting” the court will hold a “call-over”, where
the representatives of the parties attend before the judge or a
registrar to obtain a date for a trial. The cases on the “call-over”
list are then called in the order that they appear on the list
and dates allocated if they are suitable for trial (to ensure that
witnesses are available, etc). In some jurisdictions, cases are
managed by a particular judge from the outset, on a “managed
list” or “docket” system, or through “directions hearings”: see

Adjournments
[14.100] A court has the power to adjourn a trial either before
the commencement of the trial or during the course of the hear-
ing. The power to adjourn is provided for in the court rules, and
also considered to be an inherent power of the court: Hinckley
and South Leicestershire Permanent Benefit Building Society v
Freeman [1941] Ch 32. Adjournment of a trial before a judge
alone will often occur if all of the time available to hear the
matter has been used, and the court has other commitments. In
determining whether to allow an adjournment at the request of

a party, the court must determine where the balance of justice
lies: Myers v Myers [1969] WAR 19.
A relevant consideration in an adjournment application is
whether an order for the payment of the costs thrown away
by the adjournment is sufficient compensation. However, the
“salving balm” of a costs order is not necessarily sufficient in
all cases. In Sali v SPC Ltd (1993) 67 ALJR 841, the competing
claims of litigants for the time of a busy court was held to be a
relevant consideration. For many litigants, the stress of court
proceedings will also be a relevant consideration: Bomanite Pty
Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379.
Course of Trial
[14.110] The plaintiff has the right to begin, provided that
the plaintiff bears the onus of proof on at least one issue.
However, this can become a difficult issue. In Portelli v Port
Waratah Stevedoring Co Pty Ltd [1959] VR 195, the defendant
admitted its negligence and alleged contributory negligence
on the part of the plaintiff. Lowe J concluded that the onus
of proof on damages and on the apportionment of liability
remained with the plaintiff, and that therefore the plaintiff
should commence.
146 Civil Procedure
Trials commence with the plaintiff ’s counsel (where the plain-

tiff commences) “opening” the plaintiff ’s case. An opening is a
speech made by counsel outlining the evidence that is intended
to be called to prove the party’s case. Openings are not the
occasion to attempt to persuade the court that the party should
succeed, but rather to explain the case that is to be presented.
Thus, inflammatory language, irrelevant facts (such as whether
a defendant is insured) and argument should not be included.
After the opening, the party leads their evidence, by calling
their witnesses and tendering any documents or exhibits. When
a party calls a witness they are entitled to have the witness give
evidence in chief by asking non-leading questions (those that
do not suggest the answer). Thereafter, the defendant is able

to cross-examine the witness, and may ask leading questions.
However, if a witness is called solely for the purpose of produc-
ing a document, or called in error, there is no right to cross-
examine the witness. Following cross-examination, the party
calling the witness may then re-examine. Re-examination is lim-
ited to issues raised in the cross-examination and must be by
non-leading questions.
When all of a party’s evidence has been produced, they
“close” their case. Once a party’s case is closed they may not
call any more witnesses or produce any further evidence with-
out seeking the court’s leave to reopen their case. While the
reported cases adopt a very narrow test as to the right to reopen
a case (eg, Hanlon v Wadlow Ltd [1961] SASR 94), in many
jurisdictions a more liberal view is adopted in practice, particu-
larly if the need to reopen arises as a result of fresh evidence or
an oversight.
Following the closing of the first party’s case, the next party
is called upon to decide whether they wish to call evidence. If a
party wishes to call evidence they then open their case and call
their evidence. This continues until all parties have presented
their cases.
Once all of the evidence has been called, each party has a
right of address, to sum up their case and attempt to persuade
the court to find in their favour. The order of addresses is deter-

mined by two factors: whether the parties called evidence, and
where they appear on the record. If the defendant does not call
evidence, the plaintiff addresses first. If the defendant calls evi-
dence, the defendant addresses first. There is generally thought
to be some forensic advantage in addressing last, particularly
before a jury.
Verdict and Judgment

Verdict
[14.120] A verdict is a jury’s finding on issues of fact. A jury ver-

dict may be either a general verdict or a special verdict. In a
general verdict, the jury simply finds for or against the plaintiff
and assesses the amount of damages. In giving a special verdict,
the jury makes findings of fact on specific issues. Once a jury
gives its verdict it is normally discharged. It is then open to the
parties to apply for judgment based upon the verdict of the jury.
Judgment
[14.130] Judgment, in its narrow sense, refers to the orders of
the court after hearing a matter. In a jury trial, judgment will be
ordered in accordance with the verdict of the jury. The term is
also used in a more general sense to refer to the findings and
fact, reasons and orders of a trial judge where the trial is before
a judge alone.
Judgment is said to be “pronounced” when it is given and
takes effect at that time. However, a judgment may only be
enforced after it is entered on the record of the court, some-
times referred to as taking out judgment (obtaining a certified
copy of the judgment from the registrar).
Once judgment is entered, the court is “functus officio” –
its official function is finished and therefore it no longer
has the power to alter the judgment except in exceptional
148 Civil Procedure
circumstances. However, minor errors may be corrected if they

fall within the “slip rule”. A judgment may be corrected under
the slip rule if the error is obvious, or the terms of the judgment
do not carry out the judge’s intention at the time of giving judg-
ment: Arnett v Holloway [1960] VR 22.
“Interest on Judgment”
[14.140] Most jurisdictions provide for interest, in the nature of
damages, to be awarded on the amount for which judgment is
given. Additionally, once entered, a successful party is entitled
to interest on the judgment until it is satisfied.
15
Costs
Nature of Costs
[15.10] Legal costs have a far reaching influence on civil litiga-
tion. This is for two reasons. First, legal costs are high due to the
large amounts of work generally involved in litigation. Secondly,
in civil litigation the general rule is that costs follow the event –
that is, the loser pays the winner’s costs. For these reasons, the
question of costs must be considered from the outset in any
litigation, particularly since the costs payable by an unsuccessful
party will rarely cover the full extent of the successful party’s
actual costs. Many cases involve too little damage to warrant the
costs that would be incurred in pursuing the action. Other cases
are so dubious that the costs of pursuing the action, together
with the risk of paying the opponent’s costs, would result in
a poor investment of the party’s remaining resources from a
business perspective.
The amount of legal fees or costs can be disputed by a pro-
cess known as taxation of costs. This process involves a hearing
before an officer of the court, usually a “taxing master”, who
will consider all of the charges and allow, refuse, or reduce the
amount of each charge.
It is important to recognise the fundamental distinction
between costs issues relating to an order for one party to pay
another’s costs, and the issues that may arise concerning costs
payable by a party to their own solicitor. Costs payable by an
opponent are paid to “indemnify” the opponent against the
expenses they will have incurred in the proceedings and will be
taxed on the court scale.
149
150 Civil Procedure
However, costs payable by a party to their own solicitor are

pursuant to the contract whereby the solicitor has been retained
by the client. This contract may be on a quantum meruit basis
or a litigant may enter into a costs agreement setting out how
the work will be charged. In most medium to large firms, cli-
ents are charged using a method known as “time costing”. This
involves keeping a record of the total amount of time spent on
the client’s matter (usually using “units” representing one tenth
of an hour) and charging that time at an hourly rate.
Types of Costs
[15.20] Legal costs may be assessed upon a number of different

bases, depending upon the order of the court or the relationship
of the parties. The most common forms of costs are “party and
party” costs and “solicitor and client” costs. As party and party
costs are awarded as a qualified indemnity, they include only costs
that are proper and necessary for the attainment of justice or to
defend one’s rights. Solicitor and client costs, however, include
all costs necessarily, properly and reasonably incurred, in addi-
tion to those incurred on the instructions of the client. For most
litigants, this means that the solicitor and own client costs that
they incur will be greater than party and party costs. A conven-
ient analogy is to think of the Medicare process, where one sees
a medical practitioner that charges above the rebate level, leaving
a “gap” in payment to be met by the patient. The average “gap” is
around 30% in an average personal injuries action, for example.
If another party is ordered to pay costs, they are ordered to
pay costs to effectuate a qualified indemnity. That is, the amount
of costs is not meant to compensate a party for all expenses, no
matter how unnecessary, but rather to provide an indemnity for
the costs reasonably incurred. Costs to be paid by one party to
another may be ordered on varying levels of generosity as follows:
• party and party basis;
• common fund basis;
Ch 15: Costs 151
• trustee basis;
• solicitor and client basis; and
• indemnity basis.
Only costs on an indemnity basis will be the same amount as the
solicitor and own client costs.
It is important to understand that “solicitor and client
costs”, if to be paid by another party, is an allowance of party
and party costs on a more generous basis. Whereas, the “solici-
tor and own client costs” are those that must be paid by a client
to their own solicitor in accordance with the retainer agree-
ment. As stated by Buckley LJ, “the taxation on a solicitor-client
basis is substantially a party-party taxation on a more generous

scale … [however] … in the case of a solicitor-[own-]client bill,
this is an ascertainment and allowance of the charges properly
payable by a client to his solicitor”: Giles v Randall [1915] 1
KB 290.
Unfortunately, the terms used in many cases and notes often
do not clearly distinguish between the solicitor and own client
costs and the solicitor-client form of costs order (as can be seen
from the quote from Buckley LJ above).
The Incidence of Costs

[15.30] At common law there was no power to order one
party to pay the costs of another. The power to make orders
as to costs in favour of a successful plaintiff was first provided
for in The Statute of Gloucester in 1278. It was not until the
Statute 23 Henry V 111 c.15 in 1531 that the court was given
power to order that a plaintiff pay a successful defendant’s
costs. The power to order costs in Australia is found in the
statutes and court rules regulating the various courts. This
can be contrasted with many jurisdictions in the United States
where there is no power to make orders for costs against the
unsuccessful party.
152 Civil Procedure
The general principles governing an award of costs are as

follows (Re Elgindata Ltd (No 2) [1992] 1 WLR 1207):
(a) costs are in the discretion of the court;
(b) costs should usually follow the event;
(c) the general rule will not cease to apply simply because the
successful party has raised issues upon which they have
failed, however, the successful party may be deprived of
part of the costs of the action; and
(d) where a successful party raises issues unreasonably or
improperly the court may order him or her to pay the
whole or part of the unsuccessful party’s costs.
The general rules as to orders for the payment of another

party’s costs are altered if an offer has been made under the
court rules, or made in a “Calderbank” letter: see Chapter 13
Settlement. In some cases, the parties may be ordered to pay
costs of particular issues, or receive only part of their costs if
they succeeded only on part of their case. A notable example is
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.
The court also has power to order that a non-party pay costs. If
a non-party is to be ordered to pay costs, they must be given notice
and an opportunity to appear and be heard before the order is
made. The court may order that a solicitor or legal practitioner pay
the costs in cases of extreme neglect or mismanagement of litiga-
tion. In Knight v FP Special Assets (1992) 174 CLR 178, the High
Court recognised the general nature of the discretion and iden-
tified as a general category of cases where costs may be awarded
against non-parties those when the non-party has played an active
role in the litigation or stood to benefit from the litigation. This
discretion was relied upon by the Full Federal Court in Caboolture
Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty
Ltd (1993) 45 FCR 224 to award costs against a solicitor.
Security for Costs

[15.40] A court may order a plaintiff (or a counter-
claiming
defendant) to provide security for the payment of defendant’s
Ch 15: Costs 153
costs should the plaintiff lose the action. The court’s jurisdic-
tion comes from a number of sources:
• it is well established that a court has an inherent jurisdiction
to order a party to provide security for costs;
• in many jurisdictions there is power to award security or
costs under the rules of court; and
• under the Corporations Act 2001 (Cth), s 1335, a court also
has statutory jurisdiction to make such an order against a cor-
poration. If an order for security for costs is made, the action
is stayed until the security is provided as ordered.
Only a party defending a claim will be able to seek security for
costs. It would be oppressive to make a party who is defending

their rights to provide security for the plaintiff ’s costs before
allowing the party to defend. Thus, a defendant will not be
required to provide security for costs to the plaintiff, unless
the defendant is bringing a counter-claim that goes beyond the
terms of the plaintiff ’s claim.
When determining whether to order that a party provide
security for the costs of the action, a court will consider:
• the strength of the plaintiff ’s case;
• the nature of the case;
• whether the case is a sham; and
• whether the application is being used oppressively.
In a number of situations there is a prima facie presumption in
favour of the defendant obtaining security:
• where the plaintiff is a foreigner, and is resident abroad, par-
ticularly if the plaintiff has no assets in the jurisdiction;
• where the plaintiff is a corporation with no assets or apparent
ability to meet a costs order;
• where the plaintiff is a “nominal plaintiff ” bringing an action
substantially for the benefit of another; and
• where the plaintiff wrongly states his or her address, or fails
to state an address on the originating proceedings.
154 Civil Procedure
Importantly, the poverty of a personal plaintiff with a bona fide

claim will rarely be sufficient grounds for ordering security for
costs: Coyle v Cassimatis [1994] 2 Qd R 262. Similarly, where
directors of a small company provide director’s guarantees for
the payment of any costs ordered against a company plaintiff,
the court will often decline to order that further security be
provided.
In determining whether the security is being used oppres-
sively, a court must consider whether the matters that are the
subject of the action were the cause of the plaintiff ’s lack of
funds, or whether the plaintiff has made a substantial payment
into court.
The amount of security will be limited to party and party

costs that have been and are likely to be incurred. Often this
amount will be discounted to account for the circumstances
of the case (to avoid oppression) or for the possibility that the
matter may settle before trial. As the court must determine the
appropriate amount of security to be ordered, it is important for
an applicant for security for costs to provide evidence not only
of the circumstances justifying the order, but also an estimate of
the amount of costs likely to be involved in the case.
Common Costs Orders

[15.50] There are a number of common forms of costs orders
used by the courts. Orders as to costs are presumed to be on
a party and party basis, unless they specifically state otherwise.
Multiple Parties
[15.60] Where there are multiple parties, one of whom is unlikely
to be able to meet a costs order, the form of the order may be of
significance. For example, if a plaintiff sues two defendants but
succeeds against only one, the successful defendant is entitled
to his or her costs. The plaintiff is entitled to have the unsuc-
cessful defendant pay the plaintiff ’s costs, including the costs
Ch 15: Costs 155
to be paid to the successful defendant, if it was reasonable to

sue both and fair that the unsuccessful defendant be ordered to
pay both party’s costs: Steppke v National Capital Development
Corp (1978) 21 ACTR 23. If the order is in this form, it is referred
to as a Bullock order: Bullock v London General Omnibus Co
[1907] 1 KB 264. However, the court may order that the unsuc-
cessful defendant pay the successful defendant’s costs direct, a
Sanderson order: Sanderson v Blyth Theatre Co [1903] 2 KB
533. In cases where the unsuccessful defendant has insufficient
funds to meet the judgment and costs orders, the type of order
will be very important.
Interim Applications and Partial Orders

as to Costs
[15.70] Where a party obtains an order for their “costs in any
event” they will receive those costs regardless of the outcome
of the action: B Cairns, Australian Civil Procedure (9th ed,
Lawbook Co., Sydney, 2011) p 658. Where a court orders that
the costs of an application are to be “costs in the cause”, the
costs will follow the costs in the action: B Cairns, Australian
Civil Procedure (11th ed, Lawbook Co., Sydney, 2016) at
[17.240]. Sometimes, the costs of one party to the application
will be ordered to be that party’s “costs in the cause” which
will result in the party only obtaining the costs of the applica-
tion if they obtain an order for the payment of their costs of
the action. If a court formally orders that there be “no order
as to costs” each party bears their own costs: Re Hodgkinson
[1895] 2 Ch 190. However, if an order is simply silent as to
costs, the successful party on the application is entitled to costs
in the cause.
Other common forms of order include:
• costs of the day;
• costs thrown away or costs wasted;
• costs of the application; and
• costs of the appeal.
156 Civil Procedure
Taxation of Costs
[15.80] The process of “taxation of costs” is provided for under
the relevant court rules, in concert with professional con-
duct legislation that also governs costs disclosure obligations
to clients: Legal Profession Act 2006 (ACT); Legal Profession
Uniform Law Application Act 2014 (NSW); Legal Profession Act
2006 (NT); Legal Profession Act 2007 (Qld); Legal Practitioners
Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession
Uniform Law Application Act 2014 (Vic); Legal Profession Act
2008 (WA).
The process of taxing costs may be employed to settle dis-
putes as to the amount of costs to be paid pursuant to a court

order, or as between a solicitor and their clients. It is a process
whereby the party claiming costs prepares a “bill of costs” in
“taxable form”; that is, an itemised schedule of the costs and
outlays, usually in six columns providing for each item an:
• item number;
• date;
• description;
• professional fee;
• disbursement; and
• a final column for the taxing master to enter amounts refused
or “taxed off ”.
Once the bill of costs is prepared, it is filed and served. The
parties then attend upon a taxing master who considers each
item, and any argument as to whether each item ought to be
allowed. The costs of taxing a bill of costs are to be met by the
party liable under the order for costs. In some jurisdictions, it is
possible for the party liable for costs to serve an offer to settle
costs on the party entitled to same: (ACT), r 1811; (NT), r 63.34;
(Qld), r 733; (SA), r 187; (Tas), r 850; (Vic), r 63.36. In these
jurisdictions, there are also costs consequences for a party that
declines to accept the offer of costs settlement. An offer to settle
Ch 15: Costs 157
costs should be considered strongly, considering the enormous

time and expense that is involved in taxation of costs.
The amounts to be allowed for particular items of work are
generally set out in the scale of fees for the particular court.
The scales of fees are in various forms, but usually provide for
costs for each item of work such as letters, conferences, perus-
ing documents, drawing documents, etc. “Drawing” a docu-
ment refers to the mental skill in preparation of the document,
whereas “engrossment” refers to the physical production of the
document, such as typing it out. “Perusal” of a document means
considering its contents. Most rules provide for a charge per
“folio” of a document. A “folio” was originally 72 words or fig-
ures, although under some more modern rules is now defined

as 100 words or figures.
Generally solicitors no longer prepare their own bills of
costs for taxation purposes, but send the file to a “cost assessor”
who prepares the bill in taxable form from the file.
16
Appeals
Introduction
[16.10] There are no common law rights of appeal: South
Australian Land Mortgage Agency Co v The King (1922) 30 CLR
523. Thus, the statutory basis for an appeal must be located and
carefully construed. Generally, appeals in Australian Supreme

and Federal Courts lie to a Full Court or Court of Appeal (three
judges), and from there to the High Court of Australia.
Appeal rights may be categorised into three types: Strict,
Re-hearing and hearing de novo. Strict appeals will be limited
to error of law or excess of jurisdiction as at the date of the orig-
inal decision: Duralla Pty Ltd v Plant (1984) 2 FCR 342. Strict
appeals operate in a manner similar to judicial review proceed-
ings. New evidence cannot be taken into account: Petreski v
Cargill (1987) 18 FCR 68. Appeals to the Full Court of the Federal
Court and to the High Court are appeals in the strict sense.
Appeals by way of re-hearing require the appellate court to
form its own independent view of the evidence from the tran-
script. In most State and Territory jurisdictions, appeals lie by
way of re-hearing. In an appeal by way of re-hearing, the law
as it stands at the date of the re-hearing must be applied. As
re-hearings are the most common form of appeals they are dealt
with in depth below.
Finally, appeals may be by way of hearing de novo. Such a
process involves the appellate court hearing the whole of the
matter afresh. All of the evidence may be led again, and the
appellate court forms its own views of the witnesses and evi-
dence. Applications to the Administrative Appeals Tribunal (AAT)
158
Ch 16: Appeals 159
from administrative decisions, and appeals to the Planning and

Environment Courts from the decisions of local authorities, are
both hearings de novo in that the court or tribunal stands in
the shoes of the original decision maker and hears the evidence
afresh, forming its own views.
Appeal courts may generally make such orders as the trial
court could have made, whether the orders depart from the
trial decision in whole or in part. As most cases are heard by
a judge without a jury, and most appeals are heard by way of a
re-hearing with power to receive further evidence, it is rare for
a new trial to be ordered.
Lodging an Appeal
[16.20] An appeal is commenced simply by lodging a notice of
appeal setting out the grounds upon which the appellant relies.
If the respondent wishes to contest the original judgment they
may lodge a cross-appeal. Importantly, it is the order that is
appealed from, and not the reasons that are given, although
the reasons are usually relied upon to show the trial judge’s
error: Driclad Pty Ltd v Commissioner of Taxation (1968) 121
CLR 45. If the respondent supports the judgment given, but
not the reasons, no cross-appeal is required in the State and
Territory courts. In the Federal Court, if the respondent does
not wish to have the trial judge’s orders altered, the respond-
ent must lodge a “Notice of Contention” setting out its posi-
tion: Federal Court Rules 2011 (Cth), r 36.24.
The appellant is generally responsible for preparation of
the appeal book. The appeal book consists of copies of all of
the relevant documents, exhibits and transcript of the trial. The
contents of the appeal book are normally settled by a Registrar
of the court in consultation with the parties. The court requires
copies for the registry and each judge. In addition, copies must
be provided to the other parties. Often, the preparation of the
appeal books is an expensive undertaking.
160 Civil Procedure
The parties are also generally required to file and exchange

an outline of argument and list of authorities. Due to the pres-
sure of work on modern appeal courts, the outline of argument
will generally be very detailed.
Stay of Decisions
[16.30] An appeal rarely operates as a stay of a judgment or deci-
sion of the court below. In order to obtain a stay the appellant
must apply to the trial judge or appeal court (as provided by the
statute governing the appeal) and demonstrate “special circum-
stances”. Special circumstances, according to Commissioner of
Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220,
may be demonstrated in cases:
where it is necessary to prevent the appeal, if successful, from
being nugatory … Generally that will occur when, because of the
respondent’s financial state, there is no reasonable prospect of
recovering moneys paid pursuant to the judgment at first instance.
However, special circumstances are not limited to that situation and
will, I think, exist where for whatever reason, there is a real risk
that it will not be possible for a successful appellant to be restored
substantially to his former position if the judgment against him is
executed
Leave to Appeal
[16.40] Appellants to the High Court must obtain “special leave”
to appeal: Federal Court of Australia Act 1976 (Cth), s 33 (from
Full Federal Court Judgments); ss 35A, 35AA of the Judiciary
Act 1903 (Cth) (State Supreme Courts and the Supreme Court
of a Territory). In Smith Kline & French Laboratories (Aust)
Ltd v Commonwealth (1991) 173 CLR 194, the High Court
upheld the constitutional validity of the special leave require-
ment. Relevant considerations in obtaining special leave
include:
• whether the proceedings involve a matter of public
importance;
Ch 16: Appeals 161
• whether it is desirable to settle differences of opinion among

other courts; and
• whether the interests of justice require the consideration of
the High Court.
Special leave applications are provided for in the rules. Parties
are generally limited to 20 minutes argument each, with a 5
minute right of reply for the applicant: High Court Rules 2004
(Cth), r 41.11.
Similarly, many statutes provide that leave is required to
appeal from judgments involving small sums, or interlocutory
rather than final orders. A final order, as opposed to an inter-
locutory order, finally determines the rights and liabilities of the
litigants: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104
FCR 564. However, it is “never enough to ask simply does the
order finally determine the actual application or matter out of
which it arises; becomes subject to the possibility of an appeal,
every order does that, unless it be an order that is expressly
declared to be subject to variation”: Hall v Nominal Defendant
(1966) 117 CLR 423. The court must consider whether the
order finally determines the rights and liabilities of the parties
as a matter of law, not as a matter of practicality: Carr v Finance
Corp of Australia Ltd (No 1) (1981) 147 CLR 246. Thus, an
application to set aside a default judgment does not result in a
final order, just as an application to extend a limitation period
does not result in a final order.
Nature of a Re-hearing
Exercise of Discretion
[16.50] In an appeal against the exercise of judicial discretion,
it is not enough to persuade the appellate court that they may
have taken a different view of the case. Orders as to practice
and procedure, costs and assessment of damages are generally
matters of discretion. In appeals against the exercise of a discre-
tion “there is a strong presumption in favour of the correctness
162 Civil Procedure
of the decision appealed from, and … should therefore be

affirmed unless the court of appeal is satisfied that it is clearly
wrong”: Australian Coal & Shale Employees’ Federation v
Commonwealth (1953) 94 CLR 621. The various grounds for
challenging an exercise of discretion are set out in House v The
King (1936) 55 CLR 499:
It must appear that some error has been made in exercising the dis-
cretion. If the judge acts upon a wrong principle, if he allows extra-
neous or irrelevant matters to guide or affect him, if he mistakes the
facts, if he does not take into account some material consideration,
then his determination should be reviewed and the appellate court
may exercise its own discretion in substitution for his if it has the
materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is
unreasonable or plainly unjust, the appellate court may infer that in

some way there has been a failure properly to exercise the discretion
… In such a case, although the nature of the error may not be discov-
erable, the exercise of the discretion is reviewed on the ground that
a substantial wrong has in fact occurred.
Where the discretion involves matters of practice and proce-

dure, the appellate court will generally exercise particular cau-
tion: Contender 1 Ltd v Lep International Pty Ltd (1988) 63
ALJR 26.
Findings of Fact
[16.60] Appeals from findings of fact must be divided into three
classes: cases involving the failure of a trial court to properly
take all evidence into account; findings as to credibility; and
inferences that may be drawn from facts found by the trial court.
It is only in the rarest of cases that an appellate court will
interfere with a trial judge’s findings on matters of credibility.
An appellate court will not overturn a trial judge’s finding on
credibility unless it is satisfied that the trial judge’s advantage of
seeing and hearing the witness give evidence is not sufficient to
explain the finding; that is, the evidence was “glaringly improb-
able” or “contrary to compelling inferences”: Fox v Percy (2003)
77 ALJR 989 at 995. This will be the case even where the trial
Ch 16: Appeals 163
judge has made no reference to the contrary evidence of a wit-

ness (as occurred in Abalos v Australian Postal Commission
(1990) 171 CLR 167). An example of a case where a trial judge’s
findings of credit have been overturned can be found in Voulis
v Kozary and Ors (1976) 136 CLR 619.
Appellate courts are, however, entitled to reach their own
conclusions as to the inferences to be drawn from the primary
facts found by the trial judge, such as the correct apportionment
of liability in a car accident case: Warren v Coombes (1979) 142
CLR 531.
However, in cases involving findings of fact by a jury, either
the directions to the jury must be challenged, or the verdict
must be demonstrated to be one that no reasonable jury could

reach on the evidence: Hocking v Bell (1945) 71 CLR 430.
Further Evidence
[16.70] Courts that hear appeals by way of re-hearing generally
have power pursuant to the rules to admit further evidence.
Evidence of matters occurring before trial will only be admitted
on appeal if the court is satisfied that:
• it is credible evidence;
• it could not, with reasonable diligence, have been discovered
in time for trial; and
• that an opposite result would be likely: see Wollongong Corp
v Cowan (1955) 93 CLR 435.
While the grounds for receiving evidence of matters that have
occurred since the trial are slightly more generous, it remains
the exception rather than the rule.
Points Not Taken Below

[16.80] The parties should put all of their points and argu-
ments to the primary court for consideration. “Where a point
is not taken in the court below and evidence could have been
164 Civil Procedure
given there, which by any possibility could have prevented the

point from succeeding, it cannot be taken afterwards”: Suttor v
Gundowda Pty Ltd (1950) 81 CLR 418.
The High Court may hear issues of law not raised before the
lower court, even though this seems opposite to the nature
of a strict appeal. The High Court has authority to decide
“whether the judgment below ought, or ought not, to have
been given”: Crampton v The Queen (2000) 206 CLR 161 at 183.
Costs of Appeals
[16.90] As with trial, costs generally follow the event (see
Chapter 13 Settlement for a brief discussion of the effect of a

settlement offer on the costs of appeals). However, in most
jurisdictions, a statutory “appeal costs scheme” exists: Federal
Proceedings (Costs) Act 1981 (Cth); Suitors’ Fund Act 1951
(NSW); Appeal Costs Fund Act 1973 (Qld); Appeal Costs Fund
Act 1968 (Tas); Appeal Costs Fund Act 1998 (Vic); Suitors’ Fund
Act 1964 (WA).
These schemes allow the court to grant a certificate to the
party ordered to pay the costs of the appeal, entitling them to be
indemnified out of the appeal costs fund. The fund is generated
from a small fee attaching to the issue of initiating process.
Provided the case of the unsuccessful party is fairly arguable,
where the appeal is allowed on a question of law, a certificate
will generally be granted by the court. Where the case is not fairly
arguable, then a certificate will not be granted if the respondent
played a role in leading the court into error: Lauchlan v Hartley
[1980] Qd R 149.
17
Enforcement
Introduction
[17.10] Without a process for the enforcement of court orders
and judgments, there would be little point in bringing proceed-
ings. Enforcement of judgments is central to the practical suc-
cess of an action. Enforcement proceedings allow the litigant to
enlist the aid of the state to force compliance with the judgment
or order, by physical force if necessary. This commonly takes
the form of seizure of property by a Sheriff or Bailiff for sale or
delivery to the party enforcing the judgment.
While bankruptcy or liquidation are remedies available for
the enforcement of money judgments, they are expensive and
often yield no monies after the costs of the procedures and the
trustee or receiver. These options are generally not effective
for the enforcement of equitable orders, for example injunc-
tions and specific performance. When utilised as an enforce-
ment strategy, bankruptcy and/or liquidation are usually only
effective if the debt represents only a small part of the overall
wealth of the person or company: the threat of the proceedings
thereby resulting in payment. Alternatively, if there is no pros-
pect of payment, such actions result in a cessation of trading,
and perhaps some satisfaction to the creditor that they have at
least imposed a penalty of some form. Bankruptcy and liquida-
tion are not forms of execution in the strict sense, but separate
actions in their own right.
In some jurisdictions, an order for payment by instalments
may be obtained by the judgment debtor. It is possible to obtain
an order staying the effect of a judgment if matters of defence
are discovered after the action, and in limited circumstances,
165
166 Civil Procedure
pending an appeal if this is necessary to preserve the subject

matter of the action.
It is crucial to ensure that any execution of a judgment is
strictly in accordance with the relevant rules. The strict obser-
vance of the rules is required as execution of a judgment
involves the most serious interference with another’s rights or
property. A party who suffers wrongful execution will have a
remedy against the sheriff and the executing party and possibly
the solicitor: Watson v Murray & Co [1955] 2 QB 1.
An order or warrant of execution becomes stale if not exe-
cuted within the time provided by the rules, usually one year.
A judgment may only be enforced by execution within the time
provided in the rules, unless the leave of the court is obtained

(it is only possible to extend the duration of an enforcement
warrant in Qld if the application is made before the original war-
rant ends: (Qld), r 821). The limitations periods applicable to
taking action on a judgment are also applicable (see Chapter 5
Limitation Periods), in addition to the time frames set forth in
the relevant court rules relating to enforcement.
As an aid to execution, a party with a judgment may obtain
an order allowing the oral cross-examination of the party against
whom judgment has been entered. Such examinations are a
routine part of debt collection. The extent of the oral exami-
nation is limited to questions relating to the ability of the party
to satisfy the judgment, usually a debtor’s assets and ability or
means to pay. In some jurisdictions, the debtor may simply be
asked a series of pro-forma questions informally in the foyer
of the court, rather than pursuing a formal cross-examination
before a Judge (or more commonly, a Registrar).
A more extreme aid to execution is the writ of capias respon-
dendum which allows for the arrest of the defaulting party in
aid of execution of the judgment. However, this is rarely used. It
should also be noted that Mareva injunctions are also available
as an aid to execution, even if judgment has been obtained: see
Chapter 9 Interlocutory Applications.
Ch 17: Enforcement 167
Enforcing Money Judgments

[17.20] A judgment debt becomes due from pronouncement of
the judgment, but may not be enforced until the judgment is
formally entered: Holtby v Hodgson (1889) 24 QBD 103.
There are four methods of enforcing a money order:
(a) a writ of fieri facias (fi. fa.) –warrant of seizure and sale;
(b) attachment of wages or debts due (garnishee);
(c) a charging order; and
(d) appointment of a receiver.
The forms and procedures are set out in the relevant rules.
Writ of Fi. Fa.

[17.30] This writ enables the sheriff (or bailiff) to seize and sell
goods, chattels, and land of the debtor. A writ of fi. fa. may be
issued from the registry without further application to the court.
In some jurisdictions, this writ has been replaced by a warrant
of seizure and sale; however it is to the same effect. The writ
may be noted on the title of the land in the land title registry to
enable the sale of the land. Seizure usually involves the physical
seizure of the item by the sheriff. In some cases “walking posses-
sion” may be obtained: that is, notional possession is obtained
by the sheriff once an indication of an intention to take posses-
sion is given: Watson v Murray & Co [1955] 2 QB 1.
Once seized, the sheriff then sells the goods or land by auc-
tion. The goods or land must be sold at reasonable market
value: Anderson v Liddell (1968) 117 CLR 36. If the sheriff is
unable to obtain a reasonable market value for the goods, a writ
of venditioni exponas may be sought. This writ directs the sher-
iff to sell at the best price that the sheriff can obtain, even if it
is undervalued. Before such a writ will be granted by the court,
attempts must be made to sell at the market price. The sheriff
may only sell sufficient of the debtor’s property as is necessary
to satisfy the judgment debt and the costs of execution.
168 Civil Procedure
A judgment creditor may not defeat a bona fide purchaser

for value without notice: Sale of Goods Acts. A sheriff may also
have difficulty identifying which goods and chattels belong to
the debtor, particularly in cases where the debtor has others
living or working with the debtor who may claim ownership.
Thus, the sheriff may sometimes be involved in an interpleader
action to determine the true owner of goods.
Attachments of Debts and Wages

[17.40] The attachment of debts is a statutory remedy first intro-
duced in the Common Law Procedure Act 1854 (UK). The right
to attachment is now provided for in the court rules. A judg-
ment creditor may apply to a court for an order nisi for the
attachment of any debt to which the debtor has an immediate
legal or equitable right. On being served with the order nisi, the
person owing money to the judgment debtor may either pay
the debt to the judgment creditor or into court. If the order is
disputed, the money should be paid into court and the debtor
must appear on the return date.
The judgment debtor must have an immediate right to the
debt. Thus, a future expectation of a distribution from a trust
which is not certain, cannot be attached: Webb v Stenton (1883)
11 QBD 518. While common law authority is divided, it appears
to be settled in favour of the judgment debtor, and a garnishee
may not attach the savings account of a judgment debtor. This is
due to the nature of the contract between a bank and a customer,
making a signed withdrawal slip a condition precedent to liabil-
ity on the part of the bank. In Re Australia and New Zealand
Savings Bank Limited; Mellas v Evriniadis [1972] VR 690, the
court would not allow the savings account to be attached. This
position may be contrasted with the contrary conclusion of the
House of Lords in Rogers v Whiteley [1892] AC 118.
Given the uncertainty of the law in the area, many States and
Territories have enacted rules and legislation to overcome this
difficulty with respect to bank accounts and permit the attach-
ment of same by the judgment creditor: (ACT), r 2306; (NSW)
Civil Procedure Act 2005, s 117; (NT), r 71.03; (Qld) Civil

Proceedings Act 2011, s 97; (SA) Enforcement of Judgments Act
1991, s 6; (Vic), r 71.03; (WA) Civil Judgments Enforcement Act
2004, s 46.
Similarly, wages are not a debt that is owed or accruing to
an employee. Thus, wages are attachable only as they fall due.
However, in many jurisdictions statutory schemes are in place
to allow for the ongoing garnishing of earnings.
As a result of the doctrine of crown immunity, debts owing
by the crown may only be attached, in accordance with statutory
authority.
With regard to redirection of earnings from an employer, the

rules should be consulted carefully, as there are jurisdictional
nuances amongst them. For example, in South Australia, the
judgment debtor must consent to an order redirecting earnings
to the judgment creditor: (ACT), r 2350; (NSW) Civil Procedure
Act 2005, s 119; (NT), r 72.03; (Qld), r 855; (SA) Enforcement of
Judgments Act 1991, s 6; (Tas), rr 921, 923; (Vic), r 72.03; (WA)
Civil Judgments Enforcement Act 2004, s 35.
Charging Orders
[17.50] The judgment creditor may obtain an order creating a
charge over property owned by the debtor. Usually a charging
order is used to obtain a charge over stocks and shares. Such
a charge creates the same rights as if the debtor had given an
equitable charge over the property, and is enforceable in the
same way. As such, a charge pursuant to a charging order takes
effect subject to existing interests.
A charging order may only be obtained over property that the
debtor owns or in which the debtor has a present interest. In
Irani Finance Ltd v Singh [1971] Ch 59, the court found that a
charging order could not be made over land held by the debtor
jointly with others. A joint tenant’s interest is in the proceeds of
sale not a separate share of the property. In Western Australia, a
charging order may not be obtained, as a special order of court
170 Civil Procedure
is required to realise intangible or equitable property: Civil

Judgments Enforcement Act 2004 (WA), s 86.
Appointment of a Receiver
[17.60] Where common law methods of execution are not suf-
ficient, equity may appoint a receiver. The appointment of a
receiver is discretionary, and usually only after the common law
methods of execution have proved inadequate: Morgan v Hart
[1914] 2 KB 183.
The receiver is placed in the same position as the debtor and
may therefore receive the income from property, or other enti-
tlements of the judgment debtor. The court also has an inher-

ent power to confer on the receiver a power of sale: AIDC v
Co-
Operative Farmers & Graziers Direct Meat Supply Ltd
[1978] VR 633.
Enforcing Non-money Judgments

[17.70] If the judgment is not for the payment of money direct
to the other party, other methods of enforcement are available.
Judgments other than for the payment of money may be legal or
equitable and fall into two general classes:
(a) orders compelling or restraining an act or acts; and
(b) orders for the delivery of possession of land or goods.
Orders for the transfer of property may be enforced by apply-
ing for an order directing the registrar of the court or another
third party to undertake the acts necessary on the part of
the defaulting party to enforce the orders. This is a common
method of enforcing specific performance and Family Court
judgments involving property transfers: the registrar of the
court is authorised to sign the transfer documents on behalf of
the defaulting party.
The various alternative methods of enforcement of these types
of orders, and the restrictions upon their use, are as follows.
Sequestration
[17.80] Sequestration involves the seizure of the defaulting par-
ty’s property pending compliance with the order of the court.
Sequestration may be used to enforce any order requiring an
act or restraint, as well as enforcing transfer or delivery up of
possession of land or goods.
Attachment
[17.90] Attachment is the physical arrest of a party in breach of
an injunction or other equitable order of the court. An applica-
tion is made to the court for an order for attachment (arrest)
of the defaulting party. The defaulting party is arrested. The

court may imprison the offending party, or order that the writ
of attachment lie in the registry to given the offending party an
opportunity to comply with the order.
Committal
[17.100] Committal is the common law process of imprisoning a
party in contempt of an order of the court.
Writ of Possession
[17.110] This is the method of execution to obtain possession of
land. If the judgment is a common law form of judgment (that
is, for recovery of possession or ejectment) it may be enforced
immediately. If an equitable form of judgment has been granted
(delivery up of possession) a time for compliance with the order
must be set by the court, and have expired before the judgment
may be enforced: Plowman v Palmer (1914) 18 CLR 339. In
some States and Territories, there have been statutory modifica-
tions to simplify the technical nature of this remedy.
To obtain a writ of possession, the applicant must apply to
a court and prove service of the order, and non-compliance.
To execute the writ, a sheriff attends upon the land and gives
vacant possession to the party so entitled under the judgment.
172 Civil Procedure
A party entitled to possession under a judgment may also

seek to enforce the judgment by sequestration, attachment or
committal.
Writ of Delivery
[17.120] The writ of delivery is similar to a writ of possession,
however is used for recovery of personal property rather than
real property.
Interstate and Overseas Judgments

Interstate Judgments
[17.130] Interstate judgments may be registered with the
court and then enforced as if they were judgments of the local
court: Service and Execution of Process Act 1992 (Cth), Pt 6.
A sealed copy of the original judgment must be lodged on
application to register the judgment, or if a fax is relied upon
within seven days. The person the subject of the judgment may
apply for a stay. Interest continues to accrue at the rate applica-
ble in the jurisdiction where the order was made, and reasona-
ble costs are allowed for the enforcement of the judgment.
Overseas Judgments
[17.140] The Commonwealth has enacted a statutory scheme
allowing for the enforcement of foreign judgments in
Australia: Foreign Judgments Act 1991 (Cth).
The scheme provides for the registration of foreign judg-
ments from with which Australia has reciprocal rights.
The Trans-Tasman Proceedings Act 2010 (Cth) deals with the
recognition and enforcement in Australia of certain judgments
of the New Zealand courts and tribunals.
18
Alternative Dispute
Resolution
Introduction
[18.10] Alternative dispute resolution procedures are now cen-
tral to all of the civil procedure rules in Australia, and most other
common law jurisdictions. As the vast majority of civil cases in
any given jurisdiction will settle prior to trial, it is essential that
settlement be reached as quickly as possible, minimising the
expense of the parties and the court system: see Chapter 13
Settlement.
While all people, acting reasonably and possessed of good
negotiating skills, will be likely to settle cases, experience shows
that often parties are unable to reach a settlement without assis-
tance. However, negotiation skills remain of primary impor-
tance to the litigator, as most cases will still settle by negotiation
alone. The courts usually require some form of mediation prior
to allocating trial dates; thus a thorough understanding of medi-
ation is also essential to the contemporary practitioner.
In some areas, particularly in the construction and commer-
cial sectors, in an effort to avoid litigation altogether, arbitra-
tion agreements are entered into between the parties for the
appointment of an arbitrator to hear and determine the dispute.
Negotiation, mediation and arbitration can be seen as points
on a continuum:
• negotiation being unaided interaction between the parties in
an attempt to settle a dispute;
173
174 Civil Procedure
• mediation being a process involving a neutral third party to

assist the parties in negotiating a settlement; and
• arbitration being a process approaching formal litigation.
There are also many variants of these processes that do not fall
neatly into one or the other category. The most important var-
iant under the various court rules is case appraisal. In a case
appraisal, an appointed appraiser hears a “mini-trial” of the mat-
ter and gives an appraisal of what judgment would be expected.
The parties can accept the appraisal as a consent judgment or
proceed to trial. However, if a party does not accept the out-
come of the case appraisal there are costs implications if they
do not ultimately obtain a judgment more favourable than the
case appraisal.
Negotiation
[18.20] There are many methods of negotiation; however it is
useful to consider “hard bargaining” and “principled negotia-
tion”, which represent systems at opposite ends of the spec-
trum. While “hard bargaining” is rarely taught at universities
and colleges, it remains a system adopted by many practitioners
and cannot be avoided. However, it is clear that “hard bargain-
ing” is often not the most productive form of negotiation and
often fails to achieve a settlement, or at least a form of settle-
ment most advantageous to both parties. Hard bargaining will
usually destroy what relationship parties may have been able to
salvage from the dispute.
Principled negotiation, in contrast, aims to build on common
ground, explore possibilities of mutual gains, and maintain or
even build a relationship between the parties. Interestingly, in
small centres, where practitioners must negotiate with each
other regularly, a form of “principled negotiation” usually devel-
ops as the practitioners develop a relationship that transcends
any given dispute. However, in cases such as personal injuries
actions against insurers, there will never be any question beyond
Ch 18: Alternative Dispute Resolution 175
the amount that the insurer may have to pay, often resulting in
a return to hard bargaining strategies.
While some people are clearly born negotiators, it remains a
skill that we can all learn and improve upon over time. Negotiation
skills are one of the often unmentioned commodities that good
lawyers ought to be providing to clients. Central to the improve-
ment of negotiation skills is the identification of the tactics and
strategies being employed by the parties. Once the process items
can be identified, rational responses may be developed.
Hard Bargaining Tactics

[18.30] Meltsner and Schrag provide a very useful armoury of

tactical moves in their article “Tactics for Legal Services Lawyers”
(1973) 7 Clearinghouse Review 259 which are categorised as
preparatory tactics, initial tactics and general tactics. While
many of the tactics are ones that the more open and ethical
negotiator will avoid, it remains a useful catalogue to review
and be familiar with. For example, it is sometimes surprising the
impact one can have by simply identifying the tactic and telling
the other side that the particular tactic is simply not helpful.
Preparatory Tactics
[18.40] Arrange to negotiate on your own turf. This may be even
more effectively achieved by arranging meetings at your clients’
premises.
Don’t be outnumbered. Be aware that often a dispute dis-
cussed in a group will be resolved by a compromise balancing
the views of the participants.
Be aware of the pressure of time. The party with time con-
straints often concedes ground to meet deadlines, whether they
are significant (in the sense of contracts and approvals) or not
(such as boarding a flight, or Friday lunch).
Know the facts thoroughly. Lack of preparation leaves one at
the mercy of the other side’s version of events.
176 Civil Procedure
The “Lock-In”. This is a dangerous, but often effective tactic.

One simply publicly makes known a position, even if it be sim-
ply among the various parties, making a point or basic position
effectively non-negotiable.
The “Pre-condition”. By setting a pre-condition to commenc-
ing negotiations, a psychological advantage may be achieved as
the other side will have made at least one concession prior to
talking and has at least a small investment in settling.
Initial Tactics
[18.50] Who makes the first offer? This is often the most difficult
decision for negotiators, as some see it as a concession that you
really want to settle. Often a first offer can be induced from an

opponent by simply saying nothing and allowing them to fill the
uncomfortable silence. However, it is important to remember
that the first offer may set the agenda, thus a first offer based
on the strong part of a case may keep the agenda away from
weaknesses.
Make your first offer high. This is not a tactic embraced by
Fisher and Ury in their system of Principled Negotiation; how-
ever it is often very effective. Even very high opening offers can
seem more reasonable after discussion, and they allow plenty of
room for apparent concessions.
Remember there is a negotiation cycle. Major demands
should go at the beginning as this is often when everyone is
most favourable to the concept of settling. However, small and
difficult issues may do better at the end, when the parties do
not want them to destroy the agreement on the big issues. Thus,
one should plan when to introduce items of dispute.
Make the other side make the first concession. This is simply
a psychological advantage.
General Tactics
[18.60] Good Cop -Bad Cop. This can be very effective, as the
“good cop” can make marginal concessions and appear very
conciliatory while giving the impressions that such concessions

are major having regard to the attitude of the “bad cop”.
Know your law. Even lawyers remain impressed with the cita-
tion of authority, and if the other side is not clear on the law,
it can have a great impact. It also saves you from having to talk
about the effects of the case if you do not wish to disclose them.
Act tough. Unfortunately, the tough negotiator often comes
off best.
The irrational routine. Appearing irrational, or even down-
right mad, is often a tactic to make the other side settle, just to
avoid future dealings. It was a tactic that worked exceptionally
well for Khrushchev in 1960 when he banged his shoe on a

table at the United Nations, leading to real fears that he would
unleash the Soviet nuclear weapons, as he seemed so irrational.
Raise other demands as concessions are made. This is a
method of minimising concessions in multi-issue negotiations.
This is particularly effective if an opponent is constrained
by time.
Authority to Settle. Often a lawyer will say that they do not
have authority to go beyond a certain point, and that the client
is adamant. This leads to the importance of having the other
party at negotiations. However, be aware that having your own
client present may result in the client making concessions with-
out discussing them with you first.
Check any agreement with the client first. This provides two
significant benefits: first it minimises your risk of being sued
by your client, and secondly it gives some breathing space to
reflect on the terms of the offer.
Make the other side feel good. If the other side think that they
have a very good settlement they are unlikely to break the terms
of the settlement, and be willing negotiators on the next occasion.
The last gasp. This trick is simply to wait until all seems
agreed and then refusing to sign until a further concession
is made.
178 Civil Procedure
Offer to reduce the agreement to writing. This gives you the

option to structure or frame the agreement. As many lawyers think
that the negotiations are over by this point, it allows you to ensure
the agreement reflects your understanding of the settlement.
Why Negotiations Fail

[18.70] Goldberg et al, in Dispute Resolution (Little Brown
and Co., Boston, 1992) list ten significant factors that are often
involved when negotiators fail to reach an agreement:
1. failure of adequate preparation (fact gathering and analysis
as well as strategic planning);
2. failure of effective communication;

3. emotionalism;
4. extrinsic factors such as linkages to other disputes or pre-
existing commitments;
5. different perceptions of alternatives to agreement, being:
a. different information; or
b. different assessments of the same information;
6. constituency pressures;
7. stakes not suited to compromise, such as intensely held
personal values that are not likely to be conceded voluntar-
ily, or where a party’s economic survival is threatened;
8. different attitudes to risk;
9. different attitudes toward the desirability of a prompt
settlement; and
10. no zone of agreement.
As the reader will note there is nothing surprising or unusual
on the list. In fact, most people will be able to think of examples
from their own practice of all of the matters listed. However, the
usefulness of the list is that it provides a checklist of areas that
may be the blockage to a particular negotiation, and thus areas
to be worked on when dealing with the other party. The first
step to overcoming a blockage is its clear identification.
Principled Negotiation
[18.80] The concept of “Principled Negotiation” was developed
by Fisher and Ury (authors of Getting to Yes, Penguin) as an
alternative to the standard tactics set out above, and to provide
some tools to deal with some of the difficulties of the standard
tactics. Fisher and Ury suggest a model that categorises the pro-
cess into seven areas which may each be worked on separately:
Relationships. Do the parties or the negotiators have an
ongoing relationship? Are the negotiations stalling because of a
failure to separate the people from the problem?
Communication. Often the dictionary meaning of the words
doesn’t tell us the real message. Are you listening for the real
message, and what messages are you sending? How much use-
ful information is really being exchanged?
Interests. Identifying the interests of the parties and the
negotiators. Many have shared or compatible interests that can
be used as stepping stones to further areas of agreement.
Alternatives. What is each party’s best case and worst case
scenario? It is surprising how often this is not really thought
through –for example if a major car dealer loses a case, is it just
the costs of the case or will there be a feature in the Sunday papers?
Options. What options are there, and can more be devel-
oped? In personal injury cases this is difficult, as the only real
option is the payment of money, however in most other cases
there are options outside the specific dispute, particularly when
the parties are apportioning a loss caused by a third party rogue,
or in cases of genuine misunderstandings. Options are far easier
to generate if relationships are built during the process.
Legitimacy. Are there objective criteria, and what do they
show? This is where preparation is central. In almost all cases,
objective criteria can be found, such as book values, other
quotes to do work, other case outcomes on quantum, etc.
Commitments. Commitments must be realistic and effec-
tive. This may present problems in drafting agreements, and
180 Civil Procedure
will depend on levels of trust and relationships. Even the com-

mitment to negotiating a settlement may need to be assessed
before disclosing sensitive material.
The way that this concept can be applied to defeat standard
tactics is set out in Fisher and Ury, Getting Past No: Negotiating
With Difficult People (Bantam, 1993). Fisher and Ury’s model
is important for repeat negotiators (such as lawyers) who will
negotiate against each other on a regular basis. If both parties
are aware of the standard ploys, they become obstructive to a
settlement. Fisher and Ury offer a system that moves both sides
to a fair settlement.
Summary
[18.90] Effective negotiation is something that must be devel-
oped over time. Keeping a diary, or at least reviewing negotia-
tions after they are over, is one very helpful way of improving
skills. To critically review performance, the factors and concepts
set out above should prove useful. The many dubious tactics
listed above have not been identified to encourage their use
by the reader, but to enable identification when being used by
adversaries, as once identified most of the tactics lose much of
their impact. Fisher and Ury’s model, however, appears to have
an improved impact when the opponent is aware it is being
employed.
Mediation
[18.100] Mediation proceeds on the basis that a neutral third
party will assist the parties to negotiate an agreement. A com-
mon “model” for the mediation process is:
(1) the Mediator makes an opening statement outlining their
role and any ground rules for the mediation;
(2) the parties each make an opening statement outlining their
positions, which the mediator summarises into concise and
neutral language;
(3) the mediator assists the parties in identifying the issues and
setting an agenda for the mediation;
(4) the issues are then clarified and explored;
(5) the parties may caucus with the mediator, in the absence of
the other party;
(6) the parties come together for a further joint session for
failed negotiations; and
(7) the mediation outcomes and agreements are noted.
All of the court rules now provide for mediations, or compul-
sory conferences, prior to obtaining a trial date.
Arbitration
[18.110] Arbitration is common in the building and engineering

industries where experts in the relevant fields are appointed to
act as arbitrators.
In Australia, international arbitrations are governed by the
International Arbitration Act 1974 (Cth) which implements the
UNCITRAL Model Law on International Commercial Arbitration,
outlining procedures for international arbitration, and covering
all international commercial arbitration conducted in Australia,
unless otherwise agreed.
The Act adopts the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (“New York
Convention”) and the 1965 International Convention on
the Settlement of Investment Disputes between States and
Nationals of Other States (“Washington Convention”). The
Act does not deal with other alternative dispute resolution
processes that may be used to resolve private international
commercial disputes. In international transactions, arbitration
agreements are a convenient method of avoiding jurisdictional
issues and jurisdictions without clearly independent or unbiased
judiciaries.
At the State level, all of the States and Territories have uni-
form Commercial Arbitration Acts, which regulate agreements
182 Civil Procedure
between parties for their disputes to be determined by an arbi-

trator rather than a court. Parties may contract to have their
disputes determined by an arbitrator, usually appointed by a
third party, such as the President of the Institute of Arbitrators
& Mediators. The arbitrator then calls a preliminary conference
to confirm his or her appointment and give directions for the
hearing of the dispute. Arbitrations generally follow a similar
(although often quite simplified) procedure to court proceed-
ings. The arbitrator’s decision is then registered in the appropri-
ate court for enforcement, if need be.
Whether a particular dispute may be arbitrated depends
upon the width of the arbitration clause in the agreement.
Some clauses are narrow and restrict the arbitrator to the dis-
putes arising directly under the contract. Other clauses cover
any disputes arising out of the contract, such as tortious and
trade practices claims: IBM Australia Ltd v National Distributor
Services Pty Ltd (1991) 22 NSWLR 466.
It is now established that there is no implied confidentiality
in arbitration agreements, and that they are severable from the
main contract, allowing arbitrators to hear disputes that go to
the validity of the contract.
If a dispute is covered by an arbitration clause, this does not
preclude the parties from litigating. However, the defendant
must apply for a stay of any court proceedings prior to lodg-
ing a defence, if the matter is to be determined in accordance
with the arbitration clause: International Arbitration Act 1974
(Cth), s 7; State and Territory Commercial Arbitration Acts.
Index
Access to justice Alternative dispute

overview, 2.10 resolution
arbitration, 18.10, 18.110
Actions in personam arbitration clauses,
appearance, 7.80 18.110
jurisdiction, 3.10 international arbitration,
service of process, 3.100 18.110
State and Territory laws,
18.110
Actions in rem mediation, 18.10, 18.100

appearance, 7.80 common model,
jurisdiction, 3.10 18.100
mini-trial, 18.10
Adjournments, 14.100 negotiation, 18.10, 18.20
development of skills,
Adversarial system 18.90
commencement of failure of negotiations,
proceedings, 1.150 18.70
developments, 13.10 hard bargaining, 18.20,
inquisitorial system, and, 1.150 18.30
overview, 1.150 principled negotiation
18.20, 18.80
overview, 10.10, 13.10,
Affidavits 18.10
contents, 9.70
cross-examination of
deponents, 9.80 Anonymous parties, 4.150
discovery of documents, 12.40
challenging discovery, Anton Piller orders, 9.40
12.70
self-incrimination, 12.240 Anshun estoppel, 4.160
form, 9.70
interrogatories, 12.90
overview, 9.70 Appeals
appeal book, 16.20
costs, 16.90
Agents hearing de novo, 16.10
answering interrogatories, High Court, 16.40
12.110 leave to appeal, 16.40
parties to proceedings, 4.100 lodgment, 16.20
183
184 Civil Procedure
Appeals — cont Case management

overview, 16.10 amendment of pleadings,
re-hearings, 16.10 11.70
exercise of discretion, key features, 2.30
16.50 overview, 2.30
findings of fact, 16.60 principles, 2.30
further evidence, 16.70 sanctions, 2.30
settlement offers, 16.90
stay of decision, 16.30 Case management schemes
strict appeals, 16.10 Australian Capital Territory,
2.70
Appearance Federal Court, 2.60
actions in personam, 7.80 High Court, 2.50
actions in rem, 7.80 New South Wales, 2.80
conditional appearance, commercial list, 2.110
7.100 construction list, 2.110

overview, 7.80 District Court, 2.90
unconditional appearance, Supreme Court, 2.100
7.90 Northern Territory, 2.170
writ, commencement by, overview, 2.30
7.80 Queensland, 2.150
South Australia, 2.130
Arbitration Tasmania, 2.160
arbitration clauses, 18.110 Victoria, 2.120
international arbitration, Western Australia, 2.140
18.110
overview, 18.10, 18.110 Civil justice system
State and Territory laws, access to justice, 2.10
18.110 criticisms, 2.10
delay, 2.10
Arbitrators
appointment, 14.50, 18.110 Civil, use of term, 1.10
Attorney-General Class actions

relator actions, 4.60 conduct of proceedings,
4.140
Bankruptcy costs, 4.140
enforcement of judgments, identification of class, 4.140
17.10 opting-out, 4.140
representative actions, and,
4.130
Bias, 1.140 statutory schemes, 4.110,
4.130
Case law, 1.10, 1.60 sub-groups, 4.140
Index 185
Commencement of appeals, 16.90

proceedings settlement offers, 16.90
— see Ending proceedings class actions, 4.140
early disclosure obligations, 15.80
— see Interlocutory discontinuance, 10.80
applications effect on litigants, 1.210
adversarial system, 1.150 oral proceedings, 1.160
Australian Capital Territory, orders to pay, 15.10
6.30 forms of orders, 15.70
endorsements, 6.100 general principles, 15.30
Federal Court, 6.20 indemnity, 15.20
New South Wales, 6.40 multiple parties, 15.60
Northern Territory, 6.90 non-parties, 15.30
plaintiffs, 14.110 partial orders, 15.70
Queensland, 6.50 power to order, 1.210,
representative proceedings, 15.30
4.130 security for costs, 15.40

South Australia, 6.60 overview, 1.210, 15.10
Tasmania, 6.70 security for costs, 15.40
Victoria, 6.90 amount of security, 15.40
Western Australia, 6.80 court’s considerations,
writs, 6.70, 6.80, 6.90 15.40
appearance, 7.80 director’s guarantees,
15.40
Common law jurisdiction, 15.40
discovery, 12.10 settlement offers, 12.260,
equity, and, 1.20 13.10, 13.20, 13.30,
set-off, 8.70 13.40, 16.90
taxation of costs, 1.210,
15.10, 15.80
Competition and Consumer process, 15.80
Act scale of fees, 15.80
limitation periods, 5.30 time costing, 15.10
types of costs, 15.20
Contract claims
limitation periods, 5.20, 5.40 Cross-vesting scheme
pleadings, 8.60 constitutional invalidity, 3.90
object of scheme, 3.90
Corporations onus, 3.90
parties to proceedings, 4.20 overview, 3.10, 3.90
privilege against self- Territories, 3.90
incrimination, 12.240 transfer of proceedings, 3.90
Costs Crown
agreements, 15.10 party to proceedings, 4.50
186 Civil Procedure
Damages common law, 12.10

personal injuries, 5.20 consequences of failure, 12.30
limitation periods, 5.20 documents, 12.10, 12.40
affidavit of documents,
Deceased persons 12.40, 12.70, 12.240
parties to proceedings, 4.110 challenging discovery,
12.70
court orders, 12.40
Defamation definition, 12.40
limitation periods, 5.30 identification, 12.40
inspection, 12.40, 12.170
Default judgments notice to produce, 14.20
compliance with rules, 10.30 ongoing obligation to
interest, 10.30 disclose, 12.80
overview, 10.10, 10.30 possession or power,
setting-aside, 10.30 12.60
privilege, 12.160, 12.240

Defences scope of discovery, 12.50
— see Set-off types of documents, 12.50
equitable remedy, 12.20,
12.30
Delay examinations, 12.170
civil justice system, 2.10 inspections, 12.40, 12.170
service of process, 11.30 interrogatories, 12.10, 12.90
answering, 12.110
Demurrer, 8.60, 10.70 drawing, 12.100
leave of court, 12.90
Directions hearings objections, 12.120,
overview, 2.20 12.130, 12.140,
12.150, 12.190
privilege, 12.160, 12.210,
Disability, under 12.220
limitation periods, 5.60 scandalous
parties to proceedings, 4.80 interrogatories, 12.130
settlement, 13.60 trial procedure, 14.20
non-party discovery, 12.190
Disclosure by parties notice to admit, 12.10, 12.180
— see Discovery objections, 12.210
overview, 1.180 interrogatories, 12.120,
12.140, 12.150
Discontinuance oppression, 12.150,
costs, 10.80 12.280
overview, 10.10, 10.80 privilege, 12.160, 12.210,
12.220–12.270
oppression, 12.280
Discovery oral discovery, 12.200
Index 187
overview, 1.180, 12.10 application of principles,

personal injuries claims, 10.20
12.40, 12.150, 12.170 court’s considerations,
pleadings, and, 12.10 10.20
practitioner’s obligations, judgment on pleadings or
12.30 admissions, 10.10,
privilege, 12.30, 12.160, 10.70
12.210 striking out, 10.70
statutory privilege, 12.270 mechanisms, 10.10
without prejudice, 12.260 effects, 10.10
privilege against self- overview, 10.10
incrimination, 12.240 settlement, 10.10
penalty or forfeiture, summary judgments, 10.10
12.240 applications, 10.40, 10.50
public interest privilege, availability, 10.40
12.250 effect of award, 10.40
court’s considerations, purpose, 10.40

12.250 test, 10.60
purposes, 12.30
restrictions, 12.30
use of material, 12.30 Enforcement of judgments
execution of judgments, 17.10
Mareva orders, 17.10
Dismissal for want of foreign judgments, 17.140
prosecution interstate judgments, 17.130
application of principles, limitation periods, 5.30, 17.10
10.20 money judgments, 17.20
court’s considerations, 10.20 appointment of receiver,
court’s power, 10.20 17.60
overview, 10.10 attachment of debts, 17.40
prejudice, 10.20 bankruptcy or
liquidation, 17.10
Documents charging orders, 17.50
— see Discovery methods of enforcement,
17.20
Ending proceedings early writ of fieri facias, 17.30
alternative dispute non-money judgments,
resolution, 10.10 17.70
default judgments, 10.10, attachment, 17.90
10.30 committal, 17.100
compliance with rules, sequestration, 17.80
10.30 writ of delivery, 17.120
setting-aside, 10.30 writ of possession, 17.110
discontinuance, 10.10, 10.80 overview, 17.10
dismissal for want of stay of judgment’s effect,
prosecution, 10.10 17.10
188 Civil Procedure
Equity service, 11.50

discovery, 12.20 outside Australia, 3.110,
historical background 1.20 7.40
limitation periods 5.30
set-off, 8.70 Finality
overview of principle, 1.120
Errors and defaults
amendment, 11.70
Forms
formal process, 11.70
— see Precedent pleadings
limitation periods, and,
overview, 1.80
11.80
names of parties, 11.90
irregularities, 11.20 Fraud
overview, 11.10 joinder of parties, 4.160
time limits, 11.10, 11.30 limitation periods, 5.70
calculation of time, 11.10

self executing orders, Freezing orders, 9.50
11.40
service, 11.30
Functus officio, 1.120
Evidence
— see Affidavits High Court
— see Discovery case management scheme,
appeals, 16.10 2.50
re-hearings, 16.70 demurrer 8.60, 10.70
trial procedure, 14.10, 14.20, jurisdiction, 3.20, 3.30
14.110 exclusive jurisdiction,
3.40
remittal of matters, 3.40
Ex parte applications, 9.20
special leave to appeal, 16.40
Family Court of Australia

History
jurisdiction, 3.60
jury system, 1.190
overview, 1.20
Family Law Act
limitation periods, 5.30
Infants
Federal Court of Australia parties to proceedings, 4.70
case management scheme, settlement, 13.60
2.60
commencement of
Inherent jurisdiction, 1.90
proceedings, 6.20
discovery of documents,
12.50 Injunctions
jurisdiction, 3.50 interim injunctions, 9.20
Index 189
interlocutory injunctions, scandalous interrogatories,

9.10, 9.20 12.130
Mareva orders, 9.50 trial procedure, 14.20
requirements, 9.30 unfair purpose, 12.140
Interlocutory applications Issue estoppel, 1.120

affidavits, 9.70
cross-examination of Joinder of parties
deponents, 9.80 advantages, 4.160
ex parte applications, 9.20 alternative parties, 4.170
overview, 6.10, 9.10 Anshun estoppel, 4.160
procedure, 9.20 causes of action, 4.160,
service, 7.10, 9.10 4.180
restrictions, 4.200
Interlocutory orders defendants, 4.160, 4.180
Anton Piller orders, 9.40 joint parties, 4.170

freezing orders, 9.50 necessary parties, 4.210
interlocutory injunctions, overview, 4.160
9.10, 9.20 separate plaintiffs, 4.160,
Mareva orders, 9.50 4.190
requirements, 9.30 same transaction, 4.190
Mareva orders, 9.50, 17.10 several parties, 4.160, 4.170
overview, 9.10 severance of joinder, 4.160
property preservation
orders, 9.30, 9.40 Judgments — see
search orders, 9.40 Enforcement of judgments
undertakings as to damages, interest on judgment, 14.140
9.60 overview, 14.10, 14.130
urgent cases, 9.20 reasons for decision, 1.200
Interpleader, 4.220 Judicial functions, 1.110
Interrogatories Jurisdiction
answering, 12.110 actions in personam, 3.10
employees or agents, service of process, 3.100
12.110 actions in rem, 3.10
drawing, 12.100 cross-vesting scheme, 3.10,
common failings, 12.100 3.90
leave of court, 12.90 constitutional invalidity,
objections, 12.120 3.90
privilege, 12.160, 12.220 object of scheme, 3.90
oppression, 12.150 territories, 3.90
overview, 12.10, 12.90 transfer of proceedings,
purposes, 12.90 3.90
190 Civil Procedure
Jurisdiction — cont dominant purpose test,

Family Court of Australia, 12.230
3.60 overview, 12.230
Federal Court of Australia, waiver by client, 12.230
3.50
geographical jurisdiction, Limitation periods
3.10 amendment, and, 11.80
High Court, 3.20, 3.30 calculation of time, 5.40
remittal of matters, 3.40 commencement of time,
inherent jurisdiction, 1.90 5.50
monetary limits, 3.10 disability, under, 5.60
overview, 3.10 expiration of time, 5.80
security for costs, 15.40 fraud, 5.70
service of process, 3.10, mistake, 5.70
3.100, 3.100 Commonwealth, 5.30
outside jurisdiction,
Competition and Consumer

3.110, 7.40 Act, 5.30
State and Territory courts, contract claims, 5.20, 5.50
3.20 defamation, 5.30
cross-vesting scheme, enforcement of judgments,
3.90–3.100 5.30, 17.10
magistrates’ court, 3.20 equitable claims, 5.30
statutory extension, 3.10, extension of period
3.110 acknowledgment, 5.90
cross-vesting scheme, latent damage, 5.100
3.90–3.100 personal injuries, 5.110
service of process, 3.100 Family Law Act, 5.30
subject matter limits, 3.10 overview, 5.10
personal injury claims, 5.20
Jury trials contribution or
availability, 1.190, 14.40 indemnity, 5.20
historical origins, 1.190 extension of period,
overview, 1.190, 14.10 5.110
right to jury trial, 14.40 rationale, 5.10
verdicts, 14.120 real property, 5.30
State and Territory Acts, 5.20
Legal aid funding, 2.10 tort claims, 5.20
negligence, 5.50
Legal costs
— see Costs Liquidation
enforcement of judgments,
17.10
Legal professional privilege
confidential legal advice,
12.230 Mareva orders, 9.50, 17.10
Index 191
Mediation non-profit associations, 4.20

common model, 18.100 overview, 4.10
overview, 18.10, 18.100 partnerships, 4.40
procedural privity, 1.130
Mistake relator actions, 4.60
limitation periods, 5.70 representative proceedings,
4.130
trustees, 4.90
Natural justice unincorporated associations,
— see Procedural fairness 4.30
Negotiation Partnerships
development of skills, 18.90 parties to proceedings, 4.40
failure of negotiations, 18.70
hard bargaining, 18.20
general tactics, 18.60 Personal injury claims
initial tactics, 18.50 discovery, 12.50, 12.150,

preparatory tactics, 18.40 12.170
overview, 18.10 limitation periods, 5.20
principled negotiation, 18.20 contribution or
elements of process, indemnity, 5.20
18.80 extension of period,
5.110
particulars, 8.130
Non-profit associations
parties to proceedings, 4.20
Pleadings
amendment, 11.70
Oral proceedings formal process, 11.70
costs, 1.160 principles, 11.70
overview of principle, 1.160 counter-claims, 8.70
defence, 8.30
Originating proceedings confession and
overview, 6.10 avoidance, 8.50
demurrer, 8.60, 101
Parties denial of allegations, 8.40
— see Joinder of parties objections, 8.60
agents, 4.100 pleas in discharge, 8.50
amendment of names, 11.90 pleas in justification, 8.50
anonymous parties, 4.150 reply to defence, 8.80
class actions, 4.120, 4.130 set-off, 8.70
corporations, 4.20 difficulties in not pleading,
Crown, 4.50 8.10
deceased persons, 4.110 discovery, and, 12.20, 12.30
disability, under, 4.80 functions, 8.10
infants, 4.70 implied joinder, 8.100
192 Civil Procedure
Pleadings — cont provision of reasons, 1.200

judgment on pleadings or public hearings, 1.170
admissions, 10.10,
10.70 Privilege
striking out, 10.70 discovery, 12.30, 12.160,
overview, 8.10 12.220–12.270
particulars, 8.20, 8.130 legal professional privilege,
examples, 8.130 12.230
function, 8.130 public interest privilege,
identity of persons, 8.130 12.250
precedents, 1.80, 8.20 statutory privilege, 12.270
reply to defence, 8.80 types of privilege,
requirements, 8.10 12.220–12.270
statement of claim, 8.20 without prejudice, 12.260
condition of mind, 8.20
conditions precedent,
8.20 Privilege against

demurrer, 8.60 self-incrimination
particulars, 8.20 discovery, 12.240
structure, 8.20 penalty or forfeiture,
third parties, 8.120 12.240
three-document system, 8.10 overview, 12.240
Practice directions Procedural fairness

forms, 1.80 overview of principle, 1.140
overview, 1.80
precedent pleadings, 1.80 Procedural privity
overview of principle, 1.130
Precedent
— see Case law Procedure
use of term, 1.10
Precedent pleadings
availability, 8.20 Property preservation orders,
overview, 1.80 9.30, 9.40
Principles of procedure Public hearings

adversarial system, 1.150 overview of principle,
costs, 1.210-1.220 1.170
disclosure by parties, 1.180
finality of decisions, 1.120 Public interest privilege
jury system, 1.190 discovery, 12.250
oral proceedings, 1.160 court’s considerations,
procedural fairness, 1.140 12.250
procedural privity, 1.130 overview, 12.250
Index 193
Real property interlocutory proceedings,

limitation periods, 5.30 7.10
interstate service, 7.30
Reasons for decisions jurisdiction, 3.10, 3.100,
obligation to provide, 1.200 3.110
outside jurisdiction,
3.110, 7.40
Referees ordinary service, 7.10
appointment by court, 14.50 outside Australia, 3.110, 7.40
Federal Court, 3.110,
Relator actions, 4.60 7.50
nexus requirement,
Representative proceedings 3.110, 7.50
class actions, and, 4130 overview, 7.10
commencement of personal service, 7.20
proof of service, 7.20
proceedings, 4.130
common interest, 4.130 registered mail, 7.30
overview, 4.130 statutory aids, 7.30
requirements, 4.130 substituted service, 7.70
time limits, 11.30
Res judicata, 1.120
Set-off
equitable set-off, 8.90
Rules of court legal set-off, 8.70
English courts, 1.50 overview, 8.70
forms, 1.80
overview 1.10, 1.50
precedent pleadings 1.80 Settlement
acceptance of formal offer,
13.40
Self executing orders, 11.40 disability, under, 13.60
enforcement, 13.70
Separation of powers, 1.110 infants, 13.60
informal agreement, 13.50
Service of process formalisation of
— see Appearance settlement, 13.50
acceptance of documents, overview, 10.10, 13.10
7.20
concurrent writs, 7.20 Settlement offers
delay, 11.30 Calderbank offers, 13.30
in serving initiating costs, and, 13.10–13.40
process, 11.50 appeals, 16.90
taking a step after, 11.60 formal offers, 13.40, 13.50
Federal Court, 3.110, 7.50, overview, 13.10
11.50 payment into court, 13.20
194 Civil Procedure
Simple actions States and Territories

overview of stages, 1.220 discovery of documents, 12.40
Sources of law service outside Australia,
case law, 1.10, 1.60 3.110, 7.60
forms, 1.80 nexus requirement,
inherent jurisdiction, 1.90 3.110, 7.50
overview, 1.10
practice directions, 1. Statutes of limitation
precedent pleadings, 1.70 — see Limitation periods
rules of court, 1.10, 1.50
forms and precedents, Statutory law, 1.10, 1.30-1.40
1.80
statutory law, 1.10, 1.30-1.40
Stay of decision, 16.30
Standing Subpoenas, 14.20

interest groups, 1.130
Summary judgments
State and Territory courts applications, 10.40, 10.50
— see Case management availability, 10.40
schemes effect of award, 10.40
commencement of overview, 10.10
proceedings purpose, 10.40
New South Wales, 6.40 test, 10.60
Northern Territory, 6.90
Queensland, 6.50
Third parties
South Australia, 6.60
pleadings, 8.120
Tasmania, 6.70
Victoria, 6.90
Western Australia, 6.80 Time limits
jurisdiction, 3.20 — see Limitation periods
cross-vesting scheme, abridgement or extension,
3.90–3.100 11.30
federal jurisdiction, calculation of time, 11.10
3.20 self executing orders, 11.40
magistrates’ court, 3.20 service, 11.30
Statement of claim Tort claims

condition of mind, 8.20 limitation periods, 5.20
conditions precedent, 8.20 negligence, 5.50
demurrer, 8.60
overview, 8.20 Trials
particulars, 8.20 adjournments, 14.100
structure, 8.20 arbitrators, 14.50
Index 195
course of trial, 14.110 Unincorporated associations

evidence, 14.110 parties to proceedings, 4.30
date for trial, 14.90
evidence, 14.10, 14.110
advice on evidence, 14.20 Without prejudice
judge, hearing by, 14.10, 14.20 communications, 12.260
judgments, 14.10, 14.130
interest on judgment,
14.140 Witnesses
jury trials, 1.190, 14.10 subpoenas, 14.20
availability, 1.190, 14.20,
14.40 Writs
historical origins, 1.190 commencement of
jury verdict, 14.120 proceedings, 6.70,
mode of trial, 14.30 6.80, 6.90
overview, 9.10, 14.10
appearance, 7.80
preparation for trial, 14.20 concurrent writs, 7.20
referees, 14.50 enforcement of judgments,
speedy trial orders, 14.70 17.20
splitting trials, 14.60 delivery, 17.120
subpoenas, 14.20 fieri facias, 17.30
venue, 14.80 execution of judgment,
witnesses, 14.20 17.10
possession, 17.110
Trustees historical background,
parties to proceedings, 4.90 1.20

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LAWBOOK CO. 2018

© 2018 Thomson Reuters (Professional) Australia Limited

Member, Administrative Appeals Tribunal

2. Case Management ............................................................ 13

4. Parties and Joinder.......................................................... 32

7. Service and Appearance................................................... 65

10. Ending Proceedings Early ............................................. 92

11. Errors and Amendment................................................. 102

12. Discovery....................................................................... 111

13. Settlement...................................................................... 133

14. Trial and Judgment........................................................ 139

15. Costs............................................................................... 149

16. Appeals........................................................................... 158

17. Enforcement................................................................... 165

18. Alternative Dispute Resolution.................................... 173

requires consideration of the fundamental nature of the Anglo-​

A Brief History of Civil Procedure

established. Questions of law were determined by the judges

or County Court Acts and Magistrates’ or Local Court Acts, etc.

it would no longer consider itself bound by its previous deci-

Forms and Precedents

also a range of online precedents databases, such as Thomson

ent jurisdiction, in its widest sense, is confined to superior courts

The Practices of the Court

The Fundamental Principles

A number of basic or fundamental principles of civil process

The Principle of Finality

These principles are discussed at greater length in the nutshell

The Principle of Procedural Privity

The Principle of Procedural Fairness

lished before a judge will be disqualified from hearing a case.

The Adversarial Principle

Thus, if a trial judge intervenes too greatly in the course of

The Principle of Orality

may determine the veracity of a witness by hearing them in

traditionally conducted on written documents.

The Principle of Publicity

The Principle of Disclosure

As Sir Jack IH Jacobs stated in his Hamlyn Lecture:

The Jury System

The Obligation to Provide Reasons

[1.200] There is an obligation placed upon judges to provide

The Incidence of Costs

The incidence of costs can also be seen as excluding many

Appeals lie to the court from the taxing officer’s decision.

Overview of a Simple Action

• Originating process and statement of claim issued and served

to contribute to delay as a result of the profession’s apparently

held that “(p)arties do not have an inalienable right to a hearing

Caseflow Management Principles

There are effectively three basic concepts that have been

courts are asked to consider late amendments to a party’s claim

Caseflow Management Schemes

interlocutory stages. A directions hearing date is assigned by

Australian Capital Territory

New South Wales

• Administrative Law List;

Commercial and Construction Lists

a “Response” by a defendant. These documents are required to

sure, or referral for mediation.

defendant has filed a defence: (SA), r 1301. In cases not deemed

and a pre-​trial compulsory conference has been held: (Tas),

requires consideration of the fundamental nature of the Anglo-

and a pre-trial compulsory conference has been held: (Tas),

A similar result eventuated in Dean-Willocks v Air Transit