ADVERSARIAL SYSTEM - (1) Individual List or Docket case is assigned to an individual judge who is - ADR options in QLD = mediation
ssigned to an individual judge who is - ADR options in QLD = mediation and case appraisal (part of case mgmt.
Need:
- Problems = system of litigation in crises, crippled by excessive delays and
costs
- Reasons = Over dependence on party control; Absence of judicial responsibility
for effective use of resources; Over dependence on an all-embracing trial.
Aims of Reform:
- Eliminating delays in the civil litigation process
- Keeping the costs of proceedings proportionate to the subject matter of
disputes
- Ensuring cost effective case preparation
- Encouraging appropriate and timely settlement of disputes
- Diverting matters to more suitable dispute resolution processes (mediation,
case appraisal)
- Facilitating just, efficient determination of the real issues in dispute Rule 5
The purpose of these rules is to facilitate the just and expeditious resolution of
the real issues in civil proceedings at a min of expense.
- Ensuring efficient use of judicial and administrative resources
Specific Reform Measures
Establishment of Greater Uniformity in the Rules of Court
With a single set of rules applicable to the SC, DC and MC unless the rules otherwise expressly
provide (UCPR Rule 3)
The Duty to Advise/Consider ADR
Professional codes of conduct and rules of court impose an obligation on practitioners to inform
clients about alternatives to litigation.
Costs orders against practitioners (CL)
- Courts - inherent jurisdiction to award costs against legal practitioners.
- Short term jail for serious dereliction of practitioner duties, should only be invoked in
extreme cases
Practitioner unreasonably initiates or continues proceedings.
Perusing a hopeless case is not necessarily a breach of duty, however court will make
order for costs where the practitioner unreasonably initiates or continues those
proceedings. will amount to serious dereliction of duty
unreasonably: Where practitioner has ulterior purpose in instituting proceeding
White Industries v Flower and Hart: - proceedings had been instituted to delay an inevitable
outcome (namely, bankruptcy) and to achieve a breathing space. The plaintiffs solicitors were
ordered to pay the defendants costs on an indemnity basis
Levick v Deputy Commission of Taxation [2000] FCA
unreasonable conduct must be more than acting on behalf of a client who has little or no
prospect of success. There must be something akin to abuse of process; that is, using the
proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of
success.
Courts will consider whether lawyer had:
- sufficient knowledge of case to justify pursuing it,
- considered settlement, had proper grasp of issues,
- turned his mind to relevant law/facts,
- read relevant authorities,
- had advised client chances poor
a party is entitled to have a practitioner act for him or her even in an unmeritorious case
In CL at some point in time an in the case of Donoghue and Stevenson, at some point in time
you will have a client that breaks new ground
but lawyers must not commence a proceeding without any, or any proper consideration of the
question whether the proceedings has any prospect of success at all
Before you start a case must:
- Look at any evidence to support your clients case
- Look at case law and relevant legislation. Client has not idea of the law thats
why they came to a lawyer
- Did you wright a letter demanding remedy?
Serious Dereliction of Duty
Can Practitioners Lie to the Court?
Law: When it comes to the law, lawyers have an obligation to assist the court even if in disclosing
information that Is harmful to your client (i.e. adverse case, legislation)
Fact: when it comes to disclosure of facts, there is no duty of condor to the court, dont have to tell
the court matters of fact but cannot mislead the court in any way.
The court is not looking at rules of ethic so much its looking at whether or not you have
transgressed the rules of procedural law.
Advocates Immunity
Barristers and solicitor advocates have traditionally been immune against actions for negligence
arising out of their presentation of cases in court but not for out of court.
- Recognized by HC in Giannarelli v Wraith (1988)
- But the Barrister owes a duty to exercise reasonable care/skill in out of court services: i.e. advice
and drafting documents.
- Policy reason behind this was to discourage litigation against lawyers by unsuccessful and
unhappy litigants (so that courts arent bogged down by unwarranted litigation)
- this immunity has been abolished in England, New Zealand, but retained in Australia by the HC in
DOrta-Ekenaike v Victoria Legal Aid & Anor )
Restraining Vexatious and Hopeless Litigation
Vexatious Proceedings Act 2005
Court has the power to make an order on the application of the AG or registrar of the Court or, with
leave, a person against whom another person has instituted or conducted vexatious proceedings (s
5).
Vexatious proceeding is defined widely to include:
a proceeding that is an abuse of the process; and
a proceeding instituted to harass or annoy, to cause delay or detriment, or for
another wrongful purpose; and
a proceeding instituted or pursued without reasonable ground; and
a proceeding conducted in a way so as to harass or annoy, cause delay or
detriment, or achieve
another wrongful purpose.
It covers both the institution and conduct of proceeding this legislation is aimed at stopping the
parties not the practitioners and is aimed at institution of proceedings as well as stopping
proceedings
Important amendment is the last category the person whom can ask for a vexatious litigant
order. The AG and Registrar always had that power. The person who needs this power the most is
the person who is being sued by the vexatious litigant. So there is power now for a person against
whom proceeding has been brought to actually bring an application to have the other party
declared a vexatious litigant. A person who is declared a vexatious litigant cannot commence or
continue any litigation without the courts leave.
Rule 5: the court can sanction someone (i.e. fine) if they do not comply with the objective of the
rules set out in this section (avoid undue delay, proceed in an expeditious way etc.)
Case Management Scheme (court supervision of cases from commence to disposition)
The moment you start proceedings you are under the control of the court. This is new
because 30 years ago the court exercises no control over the cases that came before them
thats why it use to take 6 years to get to trial.
Case Management Allows For:
A stipulated and fixed timetable for events
Sanctions for non-compliance
Early listing of cases for hearing
Strict control of adjournments
Early exchange of documents
Pre-trial hearing and settlement conferences at which practice directions are
given
o Note R 367: lists the different directions the court can give
(i.e. how long you can have for trial and how many
witnesses you can call)
o The court does have to take into account the interest of
justice (s367(2) and each parties right to a fair trial
(s367(4)(a))
o S367(a) the court can may any order or direction even if its
inconsistent with any other provision in the rules
Civil procedure is very much
discretionary
The judge can make an order
inconsistent with the other thousand or
so rules in the UCPR
Consideration given to use of ADR procedures the biggest feature that
made a huge difference is the use of ADR practices
Two Basic Models
responsible for managing it until final disposition.
o Pros: if you have the same judge from the beginning to the
end that judge gets up to speed because they know the
case inside/out. They know the facts the procedure steps
taken before.
o Cons: if you get a judge who is not nice you are stuck with
that judge. The client may not get along with the judge.
- (2) Matter List cases controlled by the court registry, assigned to different
judges at different times for different purposes or milestones (institution,
responding by defendant, discovery)
o Pros: you are not stuck with a judge you dont like from
beginning to the end
o Cons: the various judges dont know the case that well
- Differential Case Management (DCM): most courts dont have a set system
they have some combination of the two
Qld Supreme Court: Has a master list (with events/landmarks and timelines for each) and
also an individual list system. Most cases will have the master list (breakdown of number of
events dont know which judge you will have until the day you enter court), but there is
also a specialist list for particular types of disputes. Supervised case list for complex
cases/cases requiring more than 5 days trial, managed by a supervised case list judge (it
is better to have one judge for complex cases). Commercial cases list where cases are
managed by a commercial list judge.
All Federal Court Registries: individual docket system cases randomly assigned to a
particular judge who manages the case until disposition gives it continuity and eliminates the
need to explain the case afresh each time. (same judge from beginning to end)
Practice Direction: practice directions regulate all cases. Sets timelines for the progress of a
litigation matter once originating proceedings served.
There are conflicting views as to the relative weight to be given to court efficiency and the interests
of the parties to the individual cases. Examples 4 cases:
Queensland v JL Holding Pty Ltd 1997. Late application to amend a defence refused by FCA.
This case hadnt been listed for trial, there was at leats 6 months before it would go to trial. Really
important that the other party had at leats 6 months to digest the new defence. HC allowed: justice
for parties paramount consideration. Kirby said CM is a very good tool but end of the day courts
are not about mgmt. they are about justice and justice for individuals outweighs CM
Aon Risk Services Ltd v Australian National University [2009] HCA : This case tipped the
scale the other way more weight should be given to case management. More weight given to
justice for the public as a whole i.e. substantial public interest in reducing cost and delay so
other litigants have timely access to courts. Limits will be placed upon their ability to effect changes
to their pleadings, particularly if litigation is advanced. This case said we cannot ignore case mgmt.,
if we give a particular individual as much time as they like we are doing a disservice to rest of the
public and potential litigants we are trying to get access to the courts. We should look at justice as it
is taking into account the interest the rest of the public and in particular potential litigants.
Sali v SPC : appeal set down for hearing and on day of hearing one of parties said unable to
obtain counsel requested adjournment. Court found evidence of 29 barristers competent to
handle matter but party just trying to buy time so didnt grant adjournment
Althaus v Australia Meat Holdings Pty Ltd [2009] QSC 05
Pl. made 13 attempts to plead their case . Needed leave to try again. Several failures to articulate
case; inferred that they were incapable of doing so. More than 4 yrs. since proceedings has
started, 15 yrs. since events complained of.
Chesterman J They must suffer the consequence of their own failures.
Costs
General rule: costs are at the discretion of the court; but if a case goes to trial, the loser usually
pays costs (costs follow the event, UCPR r 681
Usually assessed on a standard basis (party and party basis). UCPR r 702
Court may order costs be paid on more generous scale, known as an indemnity basis (previously
solicitor and client basis). UCPR r 703
Indemnity basis: misconduct, obstruction, delay or abuse of process.
Offers of Settlement
Court has power to use a costs order to penalize parties who fail to accept certain settlement
offers.
Power is not new; but teeth are sharper offer of compromise system.
Allows for offers by plaintiffs and defendants.
A party who doesnt accept an offer and who fares worse at trial, risks a costs order (may be on
indemnity basis).
Offers of Compromise
If P makes offer and D doesnt accept, P may be entitled to recover costs if judgment for the P is
equal to or better than the offer.
Where a D makes offer which is not accepted by the P the court may order the P to pay Ds costs
for the period after the offer was served.
Maitland Hospital v Fisher (No 2) (1992): P awarded costs on a full indemnity basis because
she recovered $206, 090 (plus costs) by judgment, having earlier offered to compromise for
$200,000 (plus costs). The purpose of the rule [re offers of compromise] is to put a premium on
realistic assessment of casesIt has added a new duty to the functions of legal practitioners
advising litigants. $6K was considered a real and significant sum
Evidence
Prior to recent reforms: experts were considered hired guns, parties use to shop around fir a
favourable opinion.
The rule now: primary obligation of an expert is to the court. Parties are encouraged to agree
jointly to instruct an expert (one expert only). Adverse cost orders may be made if the court
considers a single expert would have assisted. The parties are encouraged to jointly instruct an
expert, one expert per issue. if you call more experts and it turns out one would have been
helpful you as a practitioner can be penalized in costs.
Before and Now:
- Expert evidence was to be given orally but now in order to reduce costs, time,
expert evidence can be given in writing during evidence in chief (the first
component of evidence).
- Also you must exchange evidence reports so this means no party is ambushed
by expert evidence from the other side.
- Normally you would never let witnesses collaborate however with expert
evidence there is an exception they encourage expert witnesses to come
together jointly and make a list of the things they agree/disagree on as it saves
the court time and money.
- Pre-trial conference of experts can be ordered
- Expert is x-examined only if requested
- The court can appoint an expert (most likely higher courts in the judicial
hierarchy)
Changing Roles
- Judges more interventionist (with immunity)
- Practitioners need to become highly skilled risk assessors (immunity in some
jurisdictions)
(This means lawyers have to be more skilled at assessing cases (giving accurate estimates on
recover amounts)
- Adversary System there is less party control but arguably reforms ensure
due process and natural justice
ADR MEDIATION, ARBITRATION, CASE APPRAISAL
ADRE in UCPR and CPA = Mediation and Case Appraisal
What is ADR
- Cannot have a case set for trial until parties have tried mediation or case
appraisal (arbitration)
- ADR is not an alternative to litigation as courts are in fact the biggest users of
ADR
- Courts in QLD can mandate mediation. Once proceedings have commenced
the courts will send the parties to mediation (compulsory, referral)
- Attitude of Australian Courts
There is a clear judicial preference in favour of mediation order even if one or more parties objects
to the order
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd: the
trial judge ordered the parties to attend mediation before the defence has been filed, despite the
parties desire to wait
- The more common approach: is to adjourn applications for mediation orders
until further information (such as expert reports and financial information) has
been exchanged by the parties
- Trial dates may not be set until ADR process is followed
scheme)
Case appraisal distinguished from case mgmt.:
- Case mgmt. is the broad scheme under which the court exercises control over
cases in its jurisdiction. Case appraisal is ONE of the ADR processes available
- UCPR only uses mediation and case appraisal
Institutionalized ADR:
Mediation is used extensively in federal, state and territory courts and tribunals and it is also used
in specialised courts such as the NSW Land and Environment Court
CA distinguished from Mediation:
- If one party doesnt show up to mediation, mediation doesnt happen
- If one party doesnt show up to case appraisal, the CA may proceed
- Mediators do not make binding decision upon their parties
- CAs decisions are provisional, if not challenged within 28 days (R344)
then they become binding
- The trial judge will look at the CAs decision when awarding costs
(R344)
- While in mediation there can be no negative inference drawn at trial
against a party of the failure to settle in mediation (R332)
Civil Proceedings Act 2011 (CPA)
S37 objects opportunity to participate in ADR to achieve negotiated settlements, improve
access to justice, reduce cost & delay, with little formality & technicality
S39 ADR is mediation or case appraisal (only forms within Court system)
S40 defines mediation - a process under the rules in which the parties use a mediator to help
them resolve their dispute by negotiated agreement without adjudication.
S 41 defines case appraisal - a process under the rules in which a case appraiser provisionally
decides a dispute. (Parties can challenge a case appraisal) big difference: mediators dont
make decisions and case appraisers do, it is a provisional decision.
Getting to ADR: 3 ways:
1. Consent (S42) Parties can refer a dispute to ADR by filing a consent order.
Court then makes a referral order
2. Court order (CPA S43) court may order ADR, UCPR R319
3. Referral on application (UCPR R319) the court may order the parties (by
notice from the registrar) to an ADR process (mediation of case appraisal) to be
conducted by a specified mediator or case appraiser (the parties may select
and agree upon the third party). A party may object to the reference, within 7
days of receiving the notice, by an objection notice (stating the reasons for the
objection)
Good reason for objecting to mediation would be:
- The other party has bad faith or not disclosing relevant information,
- power imbalance between the parties (i.e.. Domestic relationship), or
- lawyers have been negotiating for a while with no results (futile),
- if its a matter about quality (i.e. tiles) or is a complicated case it would be better
suited for a CA as a CA can be anyone such as a tile expert.
- Issue with intellectual capacity
- Cant negotiate because dont have information on legal rights
- It could be too emotional, your client may not be good in mediation
- R319(5) the court may require the parties to attend a hearing, at the
conclusion of which, the court may make an order it considers appropriate
R 319(1), the court may order the parties (by notice from the registrar) to an ADR process
(mediation or case appraisal) to be conducted by a specified mediator or case appraiser (the
parties may select and agree upon the third party).
R 319(2): A party may object to the reference, within 7 days of receiving the notice, by an
objection notice (stating the reasons for the objection).
R 319 (4)(5): The court may require the parties to attend a hearing, at the conclusion of which,
the court may make an order it considers appropriate.
Referral
R 320: the court may order a dispute to mediation or case appraisal
(a) on the application of a party or
(b) if the proceeding is otherwise before the court (case already set down for hearing or part-
heard)
R 321: Proceedings referred to ADR are stayed until report from convener is received by the court.
S44, R322 A party must attend and not impede ADR convenor or sanctions: a party impedes an
ADR process if the party fails to
(a) attend the process; or
(b) participate in the process; or
(c) pay an amount the party is required to pay under a referring order within the time stated in the
order
Under this scheme, ADR convenors are allowed to set the amount of their fees little guidance on
what is required by way of participation
S45 procedure for case appraisal
S46 subpoenas to attend case appraisal but not mediation
S47 party unable to pay costs
S48 agreement at mediation
S49 mediators certificate
S49 case appraisers certificate
S50 orders giving effect to mediation agreement
S51 orders giving effect to case appraisers decision
S54 confidentiality
S52 immunity
S53 - admissions
UCPR Provisions
Rules 313-322 UCPR apply to an ADR process (mediation or case appraisal).
Rules 323-333, mediation provisions.
Rules 334-345, provisions for case appraisal.
Rules 346-351, ADR costs.
NEGOTIATION
A process whereby the parties confer with each other for the purpose of reaching an agreement
that satisfies their respective interests. Takes two forms:
1. Unassisted (parties do it by themselves, w/o the assistance of a 3 rd party
2. Assisted (an independent 3rd party assists the parties to negotiate a resolution.
Most common form mediation)
MEDIATION
A process of negotiation with a third party who undertakes a range of activities to assist parties in a
dispute to reach an agreement. Not a binding decision upon the parties. Simple definition of
mediation is that it is assisted negotiation
TEST the test to go to mediation is whether it is in the best interest of the parties
- When its not really about the legal interests, then it might be about the best
interests of the parties
- Used to preserve long-term relationships
- If its about evidentiary issues or a novel point of law then it shouldnt go to
mediation
- It also shouldnt go to mediation when there are multiple issues or parties
- S434: mediation is discretionary, may look at the costs associated with it
- By turning to mediation parties may loose some of the safeguards provided
under the formal justice system
- Mediation is party based and adopts no objective standard, there may be grave
injustice on the weaker party
- NADRAC has suggested that for mediators to produce a just outcome there
needs to be a rough parity of power between the parties
o At least a judge is able to employ measures such as apply
the rules of evidence and rules of procedure
- The biggest difference between mediation and adjudication is that even the
judge is unable to rectify the disparity of power he or she at least strives to do
so while in mediation or negotiation the disparity is accepted as part of the
process
Mediation Courts, generally, have authority to order mediation without the parties consent
(regime of compelled or mandatory mediation).
There is voluntary mediation as well
The want for disputes to be settled before trial has led to a marked growth and acceptance of
mandatory mediation. Now it seems to be a judicial preference.
Mediation, QLD Courts
- The mediator must file a certificate after mediation: cant contain comment
about how much party participated or refused to participate in mediation but may state that a party
did not attend.
- If they do have an agreement, they can have that agreement turned into a
consent order.
- the real difference between mediation and other ADR processes is that the
mediator will go and see the plaintiff and defendant separately (something a judge cannot do).
 When Mediation Must Start?
R324: A mediator must start a mediation as soon as possible after the mediators appointment and
try to finish the mediation within 28 days after the appointment
R325: the parties must act reasonably and genuinely in the mediation and help the mediator to
start and finish the mediation within the time estimated or set in the referring order
Role of the Mediator:
R 326: Mediator may, gather info about facts and nature of dispute, decide whether parties can be
represented and by whom and see the parties together or separate with/without their reps.
R 328: Mediator can seek legal advice from independent TPs with leave of court or parties
agreement to pay extra costs if costs are incurred.
At Trial
R 332: if a mediation is unsuccessful, the dispute may go to trial or be heard
in the ordinary way without an inference being drawn against any party of the failure to settle at the
mediation.
Field v Railway: says you cannot use this information during trial
CPA: S48: if agreement reached, must be written down and signed by each
party/mediator.
CPA: S50: Party may apply to QSC for order giving effect to agreement
reached.
Mediation, Out of Court
- There are a variety of community-based mediation schemes (i.e. Relationship
Australia)
- In State legal Aid Commissions, participation in a mediation conference is often
a prerequisite to a grant of legal assistance
- The QLD Legal Aid office makes funding available in family law matters
provided that parties go to mediation first
- One of the problems with this is as a mediator end of the mediation needs to
tick a box whether the parties behaved and whether they could receive further
funding, the assessment for each party is done individually based on how they
participated in mediation. This is a breach of confidentiality b/c it identifies the
arties and the outcome and also offers, counter offers etc... Another thing is
mediators are supposed to be impartial and the fact that they need to make a
judgment is problematic.
ADJUDICATION
A process in which an independent third person is authorised (either by the state or the parties) to
impose a decision upon the parties to a dispute. The decision is based upon the evidence that the
parties have presented in support of their respective cases. Adjudication may take place in a
private forum before an arbitrator appointed by the parties ( arbitration) or in a court or tribunal
before a judge (litigation).
CASE APPRAISAL
The idea with a CA is that you can pick a third party who has expertise in a particular area (i.e.
tiles). CA is a process where the convenor provisionally decides the dispute.
You got a dispute, it is decided, it is binding, usually done in Chambers, they dont need to give
reasons for there decision, case appraiser can examine witnesses, they can act independently
Difference between Mediators and Case Appraisers: mediators do not have the power to
make substantial decisions (only make decisions on procedure i.e... dont talk over one another).
CAs make provisional decisions. The reason is it provisional is because the parties have an
opportunity to challenge it. When you challenge a CAs decision you are not doing it on appeal (i.e.
the CA made an error) you are simply arguing that you would get a better judgment if you took the
matter to court.
R 319(1), the court may order the parties (by notice from the registrar) to an ADR process
(mediation or case appraisal) to be conducted by a specified mediator or case appraiser (the
parties may select and agree upon the third party).
R 319(2): A party may object to the reference, within 7 days of receiving the notice, by an
objection notice (stating the reasons for the objection).
R 319 (4)(5): The court may require the parties to attend a hearing, at the conclusion of which,
the court may make an order it considers appropriate.
UCPR 319-320:
- The parties may consent to a referral or the court may order the parties to
attend case appraisal on the application of a party or on its own motion.
- A party may object to the reference hearing. Court may make the order with
or without the parties consent.
43 Court may refer dispute to ADR process
(1) A court may require the parties or their representatives to attend before it to enable it to decide
whether the parties' dispute should be referred to an ADR process.
(3) The court may, by order (referring order), refer the dispute to mediation or case appraisal.
2 options for order mediation or case appraisal
CPA S 45 procedure at case appraisal.
- CA must decide the procedure. The CA:
- May adopt any procedure that will, in the CAs opinion, enable a sound opinion
of the likely outcome of the dispute
- May in special circumstances receive evidence, examine Ws (only the court
can issue subpoenas).
- May at any time give directions about procedure to be used
CA in UCPR
R 335: the case appraiser has the power of the court referring the dispute to decide the issues in
dispute in the referred dispute.
R 336: there is a right to legal representation.
R 337: a case appraiser may ask anyone for information (although leave of the court or the parties
agreement is required if there are costs involved).
R 334: A referring order for a case appraisal must
- (a) appoint a CA
o (i) a specified CA; or
o (ii) a CA to be selected by the parties; and
- (b) state what dispute is refers; and (see section)
Powers of Case Appraiser
R 339: a case appraisers decision must be in writing but reasons need not be given. An
appraiser may decline to proceed if the dispute proves to be unsuitable.
R 340: appraiser has the same power to award costs as the court that referred the dispute.
Effect of Case Appraisers Decision
R 343: Dissatisfied party with CAs decision may elect for dispute go to trial by filing an election
R 341: If election is not made, the parties are taken to have consented to CAs decision being
binding on them and the decision then becomes final and binding. It can be enforced, s 51
CPA
- CAs do not have to give reasons for their decisions. So you have to weight up
all the facts and the law and decide if going to court would be beneficial for your
client.
Costs
R 344: A party who challenges the decision of CA may be subject to an adverse costs order if
courts decision is not more favourable overall to a challenger than the CAs decision was.
Court to have regard to case appraiser's decision when awarding costs
(1) If the court's decision in the dispute is not more favourable overall to a challenger than the case
appraiser's decision in the dispute was to the challenger, the costs of the proceeding and the case
appraisal must be awarded against the challenger.
(2) However, the court may make another order about costs if the court considers there are special
circumstances.
(3) If all parties are challengers, the case appraiser's decision has no effect on the awarding of
costs.
- Need to be fairly certain that you will get a substantially better outcome by
going to court, otherwise caution client to live with the CAs decision
- If no challenge to the CAs decision within 28 days, the decision becomes
binding: R 343(2)
- If the matter goes to trial the judge will not know the CAs decision before hand
(to avoid tainting judges decision)
- If all parties challenge the decision the CAs decision has no effect on costs
each party pays their own costs (discretionary, court can always make a
different order): R344(3)
- R681: costs are ALWAYS discretionary general rule: winner recovers costs
on standard bases (lower) not indemnity bases (higher)
- If ADR is unsuccessful = each partys costs of the ADR process are the partys
costs in the dispute (i.e.. unless otherwise ordered, costs will follow he event
R351)
o costs in disputer = whatever money they spent in relation
to the proceedings starting from the time proceedings were
instituted, any costs associated with ADR are part of the
costs of proceedings
- If ADR is successful (so mediation agreement reached or CAs decision
unchallenged) then the court has the power to make any or deems fit with
respect to costs: R 344(2)
Obligation of a Lawyer
NSW Couriers Pty Ltd v Newman [2002] NSWSC 1172 McClennan J:
All practitioners...should be mindful, at every stage of the proceedings, of the possibility that direct
negotiation...might bring resolution of their clients problems. Proper discharge of a practitioners
obligations...requires the practitioner to inform the client of the possibility of negotiation and to raise
the possibility with the opposing parties representatives, before significant costs have been
incurred in the preparation of the matter. part of the amendments was to assert a specific
obligation in our professional conduct rules which says lawyers must consider ADR
Compulsory referral to ADR
Once proceedings have commenced, the majority of courts in Australia have the power to refer
parties to mediation (or other ADR process).
E.g.: the Federal Court of Australia Act 1976 (Cth), section 53A provides that:
(1) Subject to the Rules of Court, the Court may by order refer the proceedings to a mediator or
an arbitrator for mediation or arbitration, as the case may be
(1A) Referrals under subsection (1) to a mediator may be made with or without the consent of the
parties to the proceedings. However, referrals to an arbitrator may be made only with the consent
of the parties.
Civil Proceedings Act 2011 (Qld) and UCPR: provision is made for mandatory referral of disputes
to mediation and case appraisal.
ADR Costs
Court has power to make another order as to costs.
If all parties challenge the decision, appraisers decision has no effect on costs: R344(3)
If ADR is unsuccessful (not resulting in a full settlement), each partys costs of the ADR process are
the partys costs in the dispute = loser pays costs R 351.
CAs and mediators would be required to be paid. At the end of the trial the court will dish out the
costs of them and all the costs added along the way.
Confidentiality
CPA 53(1): Evidence of anything done or said, or an admission made, at an ADR process about
the dispute is admissible at the trial of the dispute or in another civil proceeding before the court or
elsewhere only if all parties to the dispute agree
CPA: S 54(1) An ADR convenor must not, without reasonable excuse, disclose information coming
to the ADR convenor's knowledge during an ADR process:
s 54(2) disclosure justified when:
- (a) is made with the parties agreement;
- (d) for an inquiry or proceeding relating to an offence
occurring in the course of the ADR process
- (e) for a proceeding based on a fraud alleged to relate to or
have occurred in the ADR process,
- (f) or to fulfil a statutory requirement
mediators can see parties separately
and any info during those sessions is also confidential
Williamson v Schmidt [1998]: A participant cannot lead evidence of anything said or done at
mediation in later proceedings. But they are entitled to prove by admissible evidence the existence
of any factor or matter disclosed at mediation. Cant sterilise material just by raising it at mediation.
This case was affirmed by AWA v Daniels: if Im talking to you in mediation
anything that is said or done here is confidential what that means is that if we
dont settle today and the matter goes on to trial you cant say at the mediation
___ said this or ____ did this
But your allowed to prove by admissible evidence the existence of any fact or
matter disclosed at mediation NEED EVIDENCE
Immunity of ADR Convenor
S 52 (1) In performing the functions of an ADR convenor under a referring order, the ADR
convenor has the same protection and immunity as a SC judge performing a judicial function.
- The most sought after mediators are the ones that give legal advice and
opinions
- No consensus in the ADR community about what the role of a convenor
actually is
- Mediators are rarely sued because of confidentiality
If Settlement is Reached
1. Consent Order: The court has the ability to turn the agreement into a consent
order it is important because once you have a consent order you never need
to go back to court
2. Contract: Have the agreement reduced to writing and signed by the parties to
become a binding contract problem with this is that if one party doesnt
comply with the K your back in court for a separate proceeding for breach of
contract or specific performance etc...
COMMENCING AN ACTION
Where place of cause of action / what court?
What Cause of Action might P pursue?
When Time Limits - LAA
Why Remedies seeking
How Procedures file claim, application, affidavits etc.
Who potential parties
PARTIES TO A PROCEEDING The Who
Company
distinct legal entity which must sue or be sued in its own name (but once they have filed an
appearance, they must have a solicitor on the record to file a NOITD ). Where company in
administration/being wound up, cannot begin or continue proceedings without consent of
administrator or the court. Important in litigation to establish company being sued is incorporated.
important to establish that the company is incorporated (i.e. The [plaintiff/defendant] is and has
been at all material times a company duly incorporated )
Partnership
A partnership may sue or be sued in partnership name
R 82 (definition): A partnership proceeding is a proceeding started by or against a partnership in
the partnership name and includes a proceeding between a partnership and 1 or more of its
partners.
R 83
(1): Two or more partners may start a proceeding in the partnership name.
(2): A proceeding against persons alleged to be partners may be brought against the alleged
partnership in the partnership name.
R 84(1): At any stage of a partnership proceeding, a party may by written notice require the
partnership to give the names and places of residence of the persons who were partners in the
partnership when the cause of action arose.
R 85: each Individual partner has to file NITD in own their own names. (Defendant when they file
their notice of intention to defend has to use their own names, not the business name.) how the
law gets a partnership to come out from behind its partnership identity
R 88: enforcement against individual partners
Markt & Co. Ltd v Knight Steamship [1910]:
Business Name
R89: A proceeding may be started against a name registered under the Business Names Act 1962.
90: If a proceeding is brought against a person in relation to a business carried on by the person
under a name or style other than the persons own name and the name is not registered under the
BNA
(a) the proceeding may be started against the person in the name or style under which the person
carries on business; and
(b) the name or style under which the business is carried on is sufficient designation of the person
in a document filed in the proceeding; and
(c) an order in the proceeding may be enforced against the person.
91(2): A notice of intention to defend must be in name of a person and not in the business name
business name not a separate legal entity
(3) A person who files a notice of intention to defend must file and serve a statement of the
names and places of residence of all persons who were carrying on business under the name or
style way to ensure you know who the people are
R 90: onus on Defendant to get out from behind the legal fiction and tell you who they are.
Both partnerships and businesses not legal identities, you have to get to individuals operating
behind the name. Onus not on Plaintiff to find out who is behind business: may initiate proceedings
in partnership or company name but NOITD has to be filed by actual people behind the company or
partnership
A person using a business name to trade, must use her/his/its own name to sue, and to defend
(can sue someone in their business name but must start proceeding in your own name if youre a
business)
Persons under a Disability
Disability meaning someone who does not have the capacity to sue and be sued in their name.
R 93(1): A person under a legal incapacity may start or defend a proceeding only by the persons
litigation guardian.
R 95: LG is either appointed by court, or self-appointed by filing consent. Can be removed by
court (make application under this section)
R94: a person may be a LG of a person under legal incapacity if (a) the person is not under a legal
incapacity and (b) no conflict of interest
R 96: If a defendant who is a person under a legal incapacity does not file a notice of intention to
defend within the time limit, the plaintiff may not continue the proceeding unless a person is made
litigation guardian of the defendant. If there is no intention to defend file within the time allowed
the law assumes that there is no one there to act in the childs interest cant go any further until
LG assigned or person ceases to be under disability
R 99 if a prisoner is incapable of bringing or defending a proceeding without the public trustees
consent the public trustees consent must be written on the front, or attached on a separate sheet
at the back, of the originating process or notice of intention to defend.
R95(2): court may appoint or remove a litigation guardian or substitute another person as litigation
guardian
Definition of Minor:
CAUSES OF ACTION The What
Parties; Causes of Action
- Several Parties and Several Causes of Action see rules 60-81
Multiple Plaintiffs
Joinder of parties/actions
Rule 65(1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or
respondents if
(a) separate proceedings were brought by or against each of them [then] a common question of
law or fact may arise in all the proceedings;
Or IF
(b) all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the
same transaction or event or series of transactions or events.
General Rules
Plaintiff must make initial decisions about who to sue and what causes of action to rely
on (and include in pleadings).
Defendant must consider whether to counterclaim, against plaintiff only or plaintiff and
other/s; also consider possibility of TP notices.
Need to consider: when/how parties and causes of action can be joined in the one
proceeding.
Provisions designed to avoid: Multiplicity of proceedings and Inconsistency of results
Example of misjoinder of Plaintiffs
Smith v Foley [1912]: The defendant had been discharged from partnership. Slandered the firm
and a lawyer Smith. The Ps (Smith & firm) joined in one proceeding of multiple causes of action
against the D. They sought damages for slander to Smith and the firm. HELD: Misjoinder as there
was no common question of fact or law. The terms same transaction or series of transactions in
relation to libel or slander must mean the same publication or series of publications, and in this
case the publications were separate; there was no connection between the offending statements. It
was incorrect to join the plaintiffs and causes of action in a single proceedings.
Multiple Defendants
See Rule 65(1) (above)
Rule 65(2)
Where a plaintiff is in doubt as to the responsible party (for example in a road accident case where
several cars were involved) then s/he is entitled to sue all parties potentially liable: The
defendant(s) ultimately found innocent will be protected in costs, and the responsible party will
generally bear those costs directly or indirectly. when in doubt sue everyone!
Rule 66: Identical Interest in relief unnecessary: it is not necessary for every defendant or
respondent to be interested in all the relief sought or in every cause of action included in the
proceeding
Joint defendants:
Smyth v McLeod [2004] QSC 69 : Plaintiff (injured passenger in a MV collision) sued 4
defendants. At trial, P succeeded against D1 (driver of other vehicle) and D2 (Trans Accident Com
Vict) but not against D3 (estate, deceased driver) and D4 (insurance co). D3 and D4 succeeded on
the issues between them and the plaintiff. They were entitled to an order for costs. TJ: satisfied
the P had done everything reasonably expected to avoid joining D3 and D4. That joinder had been
made necessary by the refusal of D1 and D2 to admit liability.
Held: D1 and D2 should pay the costs of the successful defs (calculated on standard basis).
Multiple Causes of Actions
Rule 60 - Joining causes of action the rule
- permits a plaintiff or applicant, whether seeking relief in the same or different capacities, to include
in the same preceding as many causes of action as the plaintiff has against a defendant or the
applicant has against a respondent.
But only if at least one of the following conditions is satisfied:
the causes of action involve a common question of law or fact, OR
arise out of the same transaction/event or series of transactions/events, OR
the court gives leave (either before or after commencement of proceedings).
Rule 68 - Inconvenient joinder of parties/actions
if the inclusion of a party or cause/s of action may delay the trial of the proceeding, prejudice
another party or is otherwise inconvenient, the court may at any time:
(a) order separate trials; or
(b) award costs to a party for attending, or relieve a party from attending, a part of a trial in which
the party has no interest; or
(c) stay the proceeding against a defendant or respondent until the trial between the other parties
is decided, on condition that the defendant or respondent against whom the proceeding is stayed is
bound by the findings of fact in the trial against the other defendant; or
(d) make another order appropriate in the circumstances.
Changing Parties after Commencement of Proceedings
R 69 Including, substituting or removing party
A general rule for adding, substituting or removing parties to a proceeding. If a party is miss-
described the description can generally be corrected even if the correction involves naming another
party, such as where a personal name is corrected to a company name of the same denomination.
Representative Actions
Rules 75-77
R 75: One party may, whether as plaintiff or a defendant, represent other persons who have the
same interest where the class (of persons with the same interests) is too large for each person to
be an individual party.
There must be unity of interests (between each member of the class and the class and
representative).
The following conditions regarding unity of interest must be fulfilled:
There must be a common interest
There must be a common grievance, and
The relief sought must be beneficial to all parties represented by the
representative party.
Example where conditions were not fulfilled: Narrow Scope:
Russian warship sunk the ship carrying their cargo. Group could not show that they all had a
common interest as shippers. A representative action was NOT allowed in relation to their various
claims for goods lost at sea. They suffered a common wrong. But no common interest theyre
losses were a different amount. The claim for each shipper had to be examined on its individual
merits. 20 century English courts required the common interest = virtually same interest.
Broad Scope
Carnie and another v Esanda Finance Corporation Limited (1995) 182 CLR 398
Borrowers from Esanda fell into arrears. Entered into a variation agreement with Esanda, extending
the time for payment. They claimed for themselves and all borrowers under similar variations
agreements that Esanda did not comply with the Credit Act (NSW) in making the variation, so it
couldnt claim credit charges on the extended period. HC: held this an appropriate case for a
representative action under Part 8 rule 13(1) NSW Supreme Court Rules.
HC gave the concept of rep actions a broader interpretation same interest a significant
question common to all members of the class. Fact that the amounts each pl. owed would be
different and owed under different contracts was no barrier to bringing a representative action.
Consolidation of proceedings
rr 78 - 81
Rule 78: the court may order that 2 or more proceedings be consolidated if
(a) The same or substantially the same question is involved in all the proceedings; or
(b) The decision in 1 proceeding will decide or affect the other proceeding(s)
Will have separate proceedings for the 10 cars that sue the guy that caused them all the same
ruckus. The first proceeding will go through and the question of liability will be the same for the
following 9 cases, but damages will be different in every case for every proceeding to follow.
ESTOPPEL
Cause of Action Estoppel Cause of action/litigation estoppel (an instance of res judicata - once
a matter has been decided it should not be re-litigated) precludes the re-litigation of claims made in
earlier proceedings between the same parties in respect of the same subject matter. Essentially,
the law says that if you dont join at the relevant time, you may be prevented from doing it later.
General Principle
Henderson v Henderson (1843) 67 ER 313
the Court requires the parties to litigation to bring forward their whole case, and will not (except
under special circumstances) permit the same parties to open the same subject of litigation
Need to bring forward every point which properly belongs to the subject of litigation. If you dont
bring a cause of action then you might be estopped for bringing another cause of action in a
separate proceeding later on. This is because it arises out of the same transaction.
Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) High Court.
(Pl) injured worker brought proceedings against Defendants Anshun and the PMA. Joined the
parties using R 65. Anshun hired the crane from PMA on which P injured himself. The two argued
it out as to who was most responsible. Court found Anshun was 10% liable and PMA was 90%
liable. PMA then brought proceedings against Anshun, claiming an entitlement to an indemnity
from Anshun pursuant to the crane hire agreement. Failed to raise the indemnity issue in the first
action.
Held: claim for indemnity ought to have been pursued in the original proceedings. Unreasonable
for PMA to refrain from raising its case of indemnity in the first action.
Anshun Estoppel: Principle:
Failure to join a claim in a proceeding (or to raise an issue which should have been decided in
earlier litigation e.g. by way of counterclaim) may preclude the pursuit of such claim/issue in a later
proceeding against the same party or parties. This is ultimately a discretionary decision for the
court Courts guarding finality principle and want to prevent inconsistent outcomes.
Exception to cause of action estoppel seen in:
Gibbs v Kinna (1999) 2 VR 19: Employee received compensation for wrongful termination from
the Industrial Relations Commission. He then sued his former employer in MC for damages for
breach of contract of employment and for violations of the TPA. Claim dismissed. Several appeals
later, the court of appeal held the test whether it was reasonable to defer reliance upon a cause
of action or defence. If reasonable, then the Anshun principle would not shut out a partys
subsequent reliance on that cause of action or defence. The CoA found that it was reasonable for
the employee to have deferred the new claims.
Failure to join a party may raise estoppel
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198: Purchasers of a business sued the
vendors for breach of warranty in relation to the 1991 financial statements annexed to the contract
of sale. The purchasers succeeded on their breach of contract claim. The s 52 claim was
dismissed. Purchasers then sued the accountants who had prepared the 1991 financial
statements. Court of Appeal applied Anshun estoppel.
Found: fresh action against the accountants was an attempt to litigate issues that were either
decided in or barred by the earlier proceedings. Court wanted to avoid risk of inconsistent verdicts.
Accountants should have been parties to original action.
TIME LIMITATIONS The When
E1: What is the appropriate CoA (and remedy) established by the facts and the relevant
limitation period? Note that sometime x situation may give rise to two or more CoAs.
Limitation of Actions Act 1974 (Qld)
s 5 (interpretation section),
S 10: Contract/Tort where NO PI (ie economic loss, property damage)= 6 YEARS from the date
on which the cause of action arose
Pirella case: they treated it as property damage, HOL said the date of cause
of action occurred is the date, and not the date it was discovered based on this
case time would run since 2000, but it is better to bring it under pure economic
loss because it is latent defect, dont need a time limit extension bring up
this case if property damage
S 11: Actions for PI/Death based in Neg, trespass,
nuisance seeking damages for personal injury: 3 YEARS
when dealing with minors there time limit of 3 years starts when they turn 18 (if
its an injury that doesnt settle down then you would wait)
S 10AA: Defamation actions, from date of publication = 1 YEAR
*CTH limitation period (ex. Competition and Consumer Act 2010) usually 6 years.
E2: When does the limitation period commence/end (work out date on which the CoA
arose)?
When does time begin to run?
When the cause of action accrues or is complete (i.e. all the elements of negligence are in
existence or have been satisfied)
Tort/Breach of Contract: Some matters actionable w/o proof of damage (torts/breach of K) = time
starts from commission of wrong not when damages are sustained
Negligence: Where proof of damage is an essential element of the cause of action (e.g.
negligence, nuisance) period commences as soon as the plaintiff suffers damage, NOT:
the time of commission of the wrong; and
not the time that the damage became known to plaintiff or discoverable by
him/her (Cartledge v Jopling )
example asbestos case: damage occurred at the time victims breathed in the
toxic air, not 40 years later when they found out they were sick
This principle was accepted in Hawkins v Clayton so applies to purely
economic loss.
Also accepted in Pirellis Case so applied to property damage
E3: Can the Limitation Period be extended?
Extensions are available under the LAA and UCPR in the following ways
:
Persons under a disability: s29 LAA
Limitation on Time:
S 29: Disability can bring an action 6 years after person ceased to be under
disability, age is the most common disability classified in the law
S29(2):
Definition of disability:
Definition S 5
o (2) Person is under disability if person is infant/unsound
mind.
o (3) Persons of unsound mind: a) if involuntary patient
under MHA 2000 or b) person is forensic disability client
under FDA 2011, or c) in custody pursuant to order of Court
or by Governor.
Infants: The time will begin to run on obtaining majority: 18 years of age
Persons of unsound mind: Period commences once capable of handling affairs.
Convicts in prison: release from custody.
Can wait until person ceases to be under disability (6 yrs. if its anything else
and 3 yrs. if its personal injuries) or have a litigation guardian appointed to
them
when dealing with minors there time limit of 3 years starts when they turn 18 (if its an injury that
doesnt settle down then you would wait until they turn of age to assess damage more accurately)
Personal Injuries (ordinary actions): s31 LAA
S 31 Personal Injury: in an action for damages for personal injury or damages
for injury resulting from the death of any person... Can only use this when
seeking damages for personal injuries, or stemming from injuries resulting from
death of a person.
S31(2)(a) where it appears to the court that there is:
o a material fact (s.30(1)(a))
o of a decisive character (s.30(1)(b))
o relating to the right of action
o which was not within the means of knowledge of the
applicant (s.30(1)(c))
o until a date after commencement of last year of limitation
period
they must have known about it after the
3yrd limitation period, if the court says
you should have known about it before
the 3 yrs. are up, then cannot rely on
s31
s31(2)(b):
o and: there is evidence to establish a right of action;
o court may order extension for 1 year from THAT DATE
The applicant must find out about the material fact somewhere after the
expiration any time after the 2nd year then youll get 12 months to do
something about it.
Regional Health Authority v Taylor (1996) 186 CLR 541: s31 of the LAA gives the court a
discretion to grant an extension of time. Therefore, even if the above requirements are satisfied,
this does not mean an extension will be automatically granted. The onus of proof is on the applicant
to establish that the court's discretion should be exercised to grant an extension of time. This is
because extensions of time outside the limitation period are considered prima facie prejudicial to
the defendant.
Defamation: s32A
(1) A person claiming to have a cause of action for defamation may apply to
the court for an order extending the limitation period for the cause of action.
(2) A court must, if satisfied that it was not reasonable in the circumstances for
the plaintiff to have commenced an action in relation to the matter complained
of within 1 year from the date of the publication, extend the limitation period
mentioned in section 10AA to a period of up to 3 years from the date of the
publication.
Mistake or Fraud: s38 LAA.
S 38: Mistake or Fraud
(1) Where ...
(a) the action is based upon the fraud of the defendant; or
(b) the right of action is concealed by the fraud of a person referred to in paragraph (a); or
(c) the action is for relief from the consequences of mistake;
The period of limitation shall not begin to run until the plaintiff has discovered
the fraud or, as the case may be, mistake or could with reasonable diligence
have discovered it.
Note: Protection of 3rd parties in s38(2)
Counter-claims: s42 LAA
Read Rules 175-185 regarding counter-claims and note s.42 LAA
"For the purposes of this Act, a claim by way of set-off or counterclaim shall be
deemed to be a separate action and to have been commenced on the same
date as the action in which the set-off or counterclaim is pleaded".
R376
By amending proceedings to add new causes of action and parties: R69 & R376 UCPR
R 69: can add new parties to proceedings after time limitation if meets
exceptions under (2)
R 376: By amending proceedings to correct party names, new CoAs with courts approval.
JURISDICTION the Where
STEP #1: GEOGRAPHICAL HIERARCHY
Territorial Jurisdiction
R 35: proceedings must be commenced in the district: START HERE (satisfy 1 of the limbs)
(1) A person must start a proceeding before a court in 1 of the following districts
(a) the district in which the defendant or respondent lives or carries on
business;
(b) if there is more than 1 defendant or respondentthe district in which 1 or
more of the defendants or respondents live or carry on business;
(c) if the parties to a proceeding to be started in a Magistrates Court or the
District Court consent in writing and file the consent with the registrar
o (i) for a Magistrates Courtany Magistrates Courts district;
or
o (ii) for the District Courtany district of the District Court;
(d) if a defendant has agreed or undertaken in writing to pay a debt or another
amount at a particular placethe district in which the place is located;
(e) the district in which all or part of the claim or cause of action arose;
(f) if the proceeding is a claim for the recovery of possession of landthe
district in which the land is located.
Cant just pick any court you are governed by R 35.
*Note - R 22(2)(c): claims filed in DC or MC must show court has jurisdiction to decide claim: both
territorial and monetary.
Personal Injury
Problem with simplified procedures personal injury you need to be a full
fledges court
QCAT: doesnt have jurisdiction with personal injury matters
Commences in Wrong District/Venue
R 38: Defendant/respondent may object if proceedings are commenced in the wrong district or
venue (assuming right court, but wrong district).
Court CANT, on own initiative, decide proceedings should have started in another place, R 38(3).
up to the plaintiff to get it right or to the defendant to object.
If objection made, court has power to dismiss objection, the proceedings, or transfer proceedings to
another court, R 38(5). Cant make client pay for this mistake have to pay for it out of your own
pocket
Change of Venue
R 39: However, if at any time a court is satisfied a proceeding can be more conveniently or fairly
heard by the court in another venue, it can order the proceedings to be transferred.
R 40: the parties may consent to the proceedings being transferred to another venue.
R 41: If transferred, the hearing is to be decided by court to which it has been transferred
Unsure About Jurisdiction
Rule 33: Central Registry a proceeding in a court may be started in any central registry of the
court. This opens up arguments between parties about where it should be heard, rather pick the
jurisdiction that suites you best.
Rule 35: has many grounds which could be used to show the court that it has jurisdiction. It is
better that you use rule 35 instead of inviting argument by using rule 33. You can use rule 35 even
if the defendant has moved out of state or country (rely on the limb where the cause of action
arose)
Service Outside a State/Territory/Australia
R 123 (interstate): provides for service of originating process outside QLD on a D but within
Australia if its served in accordance with s 15 of the Service and Execution of Process Act 1992
- Service then has same effect as if process had been served in the place of issue (s12 SEPA).
- Refer to PAGE 4 FOR FULL SEPA LEG.
R 124 (international): Originating process may be served on person OUTSIDE Australia w/o
Courts leave when:
a) proceeding based on a CoA arising in Qld,
b) property situated n QLD
g) proceeding relating to contract
i) made in Qld or contract concluded in QLD
(k) proceeding based on tort committed in Qld. tort committed in QLD
R 124-129 UCPR permits service of process outside of Australia, in certain circumstances
STEP #2 JUDICIAL HIERARCHY
Magistrates Court (Up to $150,000)
Magistrates Courts Act 1921 (Qld),
s 4 (a): MC has original jurisdiction where the amount claimed is $150,000 or less: Jurisdiction
s4 (c): for actions involving an equitable claim or demand, where only relief sought is recovery of
money or of damages, and amount claimed is $150,000 or less,
Consent Jurisdiction (Mag Court Act 1921)
s4A(1) If the parties to a proceeding in relation to an amount for which the Supreme Court or
District Court has jurisdiction agree that a Magistrates Court may have jurisdiction in relation to the
amount, the Magistrates Court has jurisdiction for the proceeding.
(2) The agreement must
(a) be written; and
(b) be signed by each of the parties or their lawyers; and
(c) include a statement that the parties know that the proceeding is not otherwise within the
jurisdiction of a Magistrates Court; and
Abandonment of Excess (Mag Court Act 1921)
S5: 5 A Magistrates Court shall have jurisdiction in a personal action if the original claim is reduced
to the prescribed limit, or less, by payment, abandonment of excess, or otherwise, or by deducting
any sum for which the plaintiff gives the defendant credit upon the plaint being entered.
s7 no power to deal with title to land.
Consent to Jurisdiction:
- S4A: if the parties to a proceeding in relation to an amount for which the
Supreme Court or District Court has jurisdiction, agree that a Magistrate Court
may have jurisdiction in relation to the amount, the Mag Court has jurisdiction
for the proceeding.
- Parties may consent to proceed in lower court b/c its cheaper
District Courts ($150,000 - $750,000)
District Court of Queensland Act 1967 (Qld),
S 68: have original jurisdiction, limited to claims (for personal actions, proceedings concerning land
and equitable rights or relief) that are more than $150,000 but less than $750,000.
S 72: Consent to jurisdiction: if both parties agree, jurisdiction to try any action which might be
brought or any counterclaim which might be made in the Supreme Court:
S73: Jurisdiction if plaintiff abandons excess
Has some appellate jurisdiction (dealing with matters from Magistrates Court).
The Supreme Courts ($750,000 +)
Have unlimited inherent original jurisdiction which is unlimited as to amount
(exercised by a single judge) usually more than $750,000.
When the supreme court of Qld was set u it was given jurisdiction to hear
anything necessary for peace and good government of the state - it can hear
any matter that goes from 1 dollar to infinity.
o unlimited as to the amount and unlimited as to the nature of
the matter it deals with
Dont normally hear matters within jurisdiction of the lower courts. If a matter is
commenced in the SC which could be heard in a lower court a costs penalty
may be imposed on the plaintiff.
An appeal lies from a decision of a single judge of the Supreme Court to the
Full Court of the Supreme Court constituted by three judges (the Court of
Appeal)
Appeals from lower courts are normally disposed of by a single judge of the
Supreme Court.
In order to bring appeal to HC you have to be granted leave from the HC itself.
Supreme Court can transfer the matter down to a district court
S58 of the Constitution of Queensland Act (2001): gives the SC all jurisdictions
necessary for administration of justice in Queensland. Very broad.
Queensland Civil & Administrative Tribunal (QCAT) (under $25,000)
Governed by the QCAT Act 2009 (QLD)
prescribed amount of $25,000 defined by Sch. 3 of QCAT
s11: the tribunal has original jurisdiction to hear and decide a minor civil dispute
Sch 3: Minor Civil Dispute defined to include:
Debt disputes (i.e. money lent not repaid)
Consumer trade disputes (K for supply of goods)
Claim re damage to property caused by or arising out of use of a vehicle
Claim for repair of defect in motor vehicle
Sch 4: claim for amount including interest of not more than $25,000 doesnt include some claims
within QCAT jurisdiction refer to R 514.
R 514
(1): simplified procedures apply to minor claims
(2): parties to a claim that is not minor (more than $25K) may (a) agree in writing that simplified
procedures apply and (b) file the agreement (used to keep lawyers out, keep discovery to a
minimum)
(3): However, subrule (2) does not apply to a claim for a debt or liquidated demand
S33: proceedings are commences by application
S43(1): all parties must represent themselves unless the interests of justice require otherwise
S43(2): may be represented by someone else if:
- (i) the party is a child or person with impaired capacity; or
- (iv) the party has been given leave by the tribunal to be represented
Transfers
s52: matter started in QCAT can be transferred to a court where QCAT doesnt have authority or
more appropriately dealt with by the court, either by application of parties or on its own motion (if
too complicated or plaintiff seeking a remedy that cannot grant)
s53: courts can transfer matters to QCAT
Appeal
s142: QCAT decisions can be appealed, in some instances to court of appeal 28 days from
receiving reasons; in other instances to Internal Appeal Tribunal
Mediation
s75: matters can be referred to mediation with or without consent of parties
Costs/Enforcement
s100: each party usually bears own costs
s129-132: decisions of QCAT can be enforced as if they were made by the court, but enforcement
proceedings are taken through Magistrate Court.
Transfer between Courts
CPA
S 25(1): SC may order a proceeding pending in DC or MC transferred to be transferred to SC
May do there with a case where significant public interest and want to set
precedence
S 25(2): SC may order a proceeding pending in SC to be transferred to DC or MC if they have
jurisdiction.
S 26(1): DC may transfer matter pending in MC to DC.
S 26(2): DC can transfer matter pending in DC to MC if MC has jurisdiction to hear it.
Note: S 28: if matter transferred because claim beyond jurisdiction, commencing party may pay
costs.
Appeal
There is no common law right of appeal.
The appeal procedure is created by legislation.
Always check the relevant legislation before commencing an appeal.
State/Federal Divide
Recall that the Supreme Court has unlimited general jurisdiction (see next slide
for sources of jurisdiction):
Courts in the federal system have specific jurisdiction, defined by legislation.
The Supreme Court has exclusive jurisdiction. Also, it has concurrent
jurisdiction with the state court. The appellate jurisdiction.
General Rule: State and territory courts deal with matters arising under State or
Territory jurisdiction.
Courts within the federal system (family court system, high court, family court,
federal magistrate) deal mainly with matters arising under Commonwealth
legislation.
Cross-Vesting Scheme
1. Two forms of cross-vesting legislation
The first, by virtue of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth):
State and Territory Supreme Courts (all superior courts) are invested with federal jurisdiction: this is
possible because the Cth Constitution expressly provides the Cth parliament to invest state courts
with federal judicial power (s 77(iii)).
By investing state court with jurisdiction to deal with some
federal matters so the problem of a CoA arising in both
state and federal jurisdiction (injury from workout machine
ACL) can be dealt with by the state court although strictly
speaking they are Commonwealth matters.
No sense whatsoever for two matters to be ongoing in
different court when it arises from the same fact.so federal
court can transfer matter to a state court
* So matters can be transferred from Fed Court to SC of states/territories but not the other way
around.
2. The second, by virtue of the Jurisdiction of Courts (Cross-Vesting) Act 1987
(Qld):
The State and Territory Supreme Courts have cross-vested jurisdiction in state and territory
matters. So in certain circumstances: one state/territory Supreme Court can transfer matter to
another state/territory SC court
A federal court can transfer to a state/territory court supreme court
A state/territory supreme court can transfer to state/territory supreme courts.
Inferior courts - included in the scheme in only a very limited manner.
S 8 provides for the Supreme Court to remove proceedings up into the
Supreme Court for the purpose of considering transferring them in accordance
with the scheme.
A matter properly institute in a lower court, in order to bring it into the scheme,
must have the matter transferred up to the Supreme Court so that the Supreme
Court can then transfer as it is required.
Circumstances in which X-vesting can be used
The courts should in most situations continue to hear and determine only proceedings that would
otherwise fall within their ordinary fields of jurisdiction.
S 5 CV Act: Transfer may take place in two instances:
1. Where related proceedings have been commenced in different courts
participating in the scheme one court may transfer proceedings to other court
when: appropriate and in interests of justice.
possible where a defendant carries on a business in all of
those jurisdictions
 i.e. 8 breast implant negligence cases all over the Australia
same issue: was there negligence
2. In relation to any pending proceedings, where: more appropriate and in the
interests of justice.
Both or all cause of action arose out of the same facts its
better if one court deals with all those causes of action
because then there is one answer to the problem and
avoids conflicting outcomes (consistency)
Re Wakim; Ex parte McNally (1999): The state cross-vesting legislation originally also
purported to confer State jurisdiction on federal courts. However the HC held that Fed Cts cannot
exercise State judicial power. As a consequence, cross-vesting is not available from the states to
the Commonwealth. Federal court get their power from legislation, so cannot expand the scope
of their power but Supreme Court have very broad jurisdiction
Accrued jurisdiction: A federal court may exercise jurisdiction to determine a non-federal aspect
of a matter within federal jurisdiction if it forms a part of that matter, i.e., part of the same
controversy (e.g. F.Ct had jurisdiction to decide a passing off claim in an action which also involved
alleged contravention of TPA).
VS
Associated jurisdiction: enables one federal court (e.g. Family Court) to exercise statutory
jurisdiction of another federal court (e.g. Fed Ct) where associated matters arise under federal law.
COMMENCING PROCEEDINGS the How
Originating Your Proceeding
Relevant rules, RR 8-16 UCPR.
R3: the set of rules in the UCPR apply to all three courts
R7: the court can set time limitations but this does not effect the time limitations placed in the LAA
R8:
(1) a proceeding starts when the originating process is issued by the court
(2): the rules provide for the following types of originating proceedings claim application
R9: A proceeding must be started by claim unless these rules require or permit the proceeding to
be started by application
R22:
(1) A claim must be in the approved form (form 2)
a. State briefly the nature of the claim made or relief sought in
the proceedings; and
b. attach a statement to the claim; and
c. For a claim in the Dis or Mag court show the court has
jurisdiction
R23: the plaintiff must ensure that the claim has a statement telling the defendant the (a) relevant
time period for filing a NITD and (b) that if the D does not file a NITD (w/ 28 days) a default
judgment may be obtained against the defendant without further notice
R427: plaintiff in statement of claim may elect trial by jury
E1: Form of Originating Process
Two principal forms of originating process (i.e. ways of commencing proceedings):
1. Claim [Form 2] more popular + statement of claim [Form 16]
Claim is used to commence proceedings where there is a
dispute between two or more persons; generally involving
disputed facts (may also involve legal argument).
A claim is about disputed facts, now law
However legal argument is not entirely abandoned (i.e.. if
you commencing proceedings for negligence)
R 9: provides that a proceeding must be started by claim
unless the rules require/permit the proceedings to be
started by application.]
***When you do a claim it must be accompanied by a
statement of claim (Form 16), R 22(2)(b) Form 16
going to be a lot more detail the claim itself
Rule 22: the claim must state briefly the nature of the claim
made but also requires that a statement of claim be
attached to the claim. this is about due process
Purpose is to:
Give the defendant notice of the nature
of the claim, and the CoA relied upon.
Show a connection between the plaintiff
and the defendant.
Show the damage which the plaintiff
alleges/or the remedy or relief sought.
2. Application [Form 5] is used where: R 11
(a) The only or main issue is one of law and a substantial dispute of fact is unlikely; or
(b) There is no opposing party; or
(c) Urgent relief is sought (there is insufficient time to prepare a claim). Claims involve pleadings.
If something is urgent and you need to
get things started quickly, its easier to
use a form five application (i.e.. Need to
stop a story from airing on national
television)
Typical situation is an executive who
wants to get the court approval to
administer a trust
***When you do an application it has to be attached with
an affidavit (Form 46)
Oral Application: Rule 12: proceedings may be started by oral application if
(a) Urgent relief is sought
(b) Practitioner undertakes to file an application within the time directed by the court, and
(c) The court considers it appropriate.
Form 9 : Interlocutory application which occurs between commencing proceedings and trial. Must
be accompanied by an affidavit (Form 46)
Cab be used to bring an injunction
If You Get it Wrong?
RR 13-14: if the court considers proceedings started by claim/application should have been
started by application/claim,
The court may order that the proceedings continue as if started correctly (by claim or
application as the case may be). (R13 proceedings incorrectly started by claim & R14: proceedings
incorrectly started by app)
Distinguish an interlocutory application (Form 9) from an initiating application (Form 5)
Osborn: defines an interlocutory application as one taken during the course of an action and
incidental to the principal object of the action, namely, the judgment. Once proceedings have
commenced, it may be necessary for the parties to bring interlocutory proceedings to deal with a
number of preliminary matters prior to commencement of the hearing of the case.
E2: Duration of originating process
Stale Claim
R 24: If a claim (or other originating process) is not served within 12 months of the date of filing in
the registry, it is said to be stale.
Service of a stale claim is an irregularity, not a nullity.
If the defendant enters an unconditional appearance, it amounts to a waiver of
the irregularity in service. Plaintiff is still good to go.
A defendant files notice of intention to defend (Form 6) attached with a
defence (Form 17) waves irregularity
Defendants Served with a Stale Claim
Brealey v Board of Management Royal Perth Hospital (1999) . Held: not
open to the Respondent in that case to refuse to accept service. The
respondent should have entered a conditional appearance, and applied to the
court to set aside the service, a matter within the discretion of the court so if
you get served with a stale claim you have to respond
Plaintiffs with a Claim about to go Stale :
R 24(2): If service is not affected within 12 months, and reasonable efforts to serve the claim have
been made, or there is another good reason, the registrar may review the claim for further periods
of not more than 1 years Apply to the court to renew it (Form 9) interlocutory application
supported by an affidavit
The application is made ex parte (absence of other party) supported by
affidavit:
Need to show:
o That efforts have been made to serve the defendant/s
o Difficulties encountered/reasons why not yet served; or
o other good reason.
R 24(4): in the first five years the registrar can actually renew it, but, after five years you will need
to a judge to grant you leave of the court
Renewal of Originating Process
R7: will allow you to have time limit extended or shortened - pertains to time limit under the UCPR
it has nothing to do with getting an extension of time to start proceeding under the Limitation of
Action Act
- Need to show that efforts to serve D have been made
Limitation Period: As long as you commence within the limitation period (3/6 years), thats the
end of the matter no one is interested in the limitation period anymore. Whether you need
extension on the 12 months to serve is a separate question.
E3: Service of Originating Proceedings
What is Service? The procedure by which a plaintiff informs a defendant of the claim being made
against him or her.
Why serve?1) Natural Justice: Bring a claim to the notice of the defendant(s) 2) Notify the
defendant(s) how to respond.
3 types
1) Personal Service 105-11 originating proceedings (can be done through a solicitor who will
normally use a process server)
2) Ordinary Service 112 sufficient for interlocutory proceedings
3) Informal Service 117
Personal Service
R 105: (1) a person serving originating process (form 2 claim and form 5 application) must serve it
personally on person intended to be served.
R 106:
(1) To serve doc personally, person serving must give doc or copy to person intended to
be served.
(2) if person doesnt accept doc, party serving may put it down in persons presence and
tell them what it is,
(3) not necessary to show them the original of the doc if a copy is served
Young Person
R 108:
(1) Doc requiring personal service on young person to be served on litigation guardian or
(2) (a) parent or guardian or (b) adult who has care of young person.
Person with Impaired Capacity
R 109: Doc requiring personal service on person with impaired capacity, served on
(a) litigation guardian or
(b) someone who could act as lit guardian or
(c) an adult charged with their care.
Prisoners
R 110: serve on a litigation guardian if they have one, person in charge (normally the warden). Or,
they may have someone appointed for them (public trustee)
Magistrate Court Proceeding
R 111:
(1) documents originate the magistrate court can be served by ordinary service
(2) however, cannot serve it through:
112(1)(b): leaving at residence in position likely to find it
(c) if gated area leaving it in a position likely to find it
(d) posting it
(e) fax or email
(g) electronic means
can do it by:
(a) leaving it with someone who is apparently an adult at the relevant address or
(f) through solicitor (exchange box, fax or email)
Corporations
R 107: As required by Corporations Act,
S 109 Corps Act: leave at Registered office or personal delivery on a Defendant.
Business
When serving a business need to check on ASIC the registered office & ask the persons name and
record date and time
R 113(1): This rule applies if -
(a) a proceeding is brought against a person in relation to a business carried on by the person
under a name or style other than the persons name (i.e. a trading name or business name); and
(b) the name is not registered under the Business Names Act 1962 (unregistered trading or
business name); and
(c) the proceeding is started in the name or style under which the person carries on the business.
(2) the originating process may be served by leaving a copy at the persons place of business with
a person who appears to have control/mgmt. of the business at the place\
Partnership
114.(1) An originating process against a partnership must be served
(a) on 1 or more of the partners; or
(b) on a person at the principal place of business of the partnership in Queensland who appears to
have control or management of the business there; or
(c) for a partnership registered under the Partnership (Limited Liability) Act 1988at the registered
office of the partnership.
(2) If the originating process is served under sub rule (1), each of the partners who were partners
in the partnership when the originating process was issued, including a partner who was outside
Queensland at the time, is taken to have been served.
Service on a Solicitor
R136: defendant may act by solicitor or represent themselves
R 115: SOLICITORS MUST HAVE SPECIFIC INSTRUCTIONS TO ACCEPT SERVICE
(whether person or ordinary)
(1) Despite part 2,3,4, a solicitor may accept service of a document for a party
(2) The solicitor must make a note on a copy of the document to the effect that the solicitor accepts
service for the party. I.e. sign the copy Served on Billy 26 Feb 2014
(3) The document is taken to have been served on the party, unless the party proves the solicitor
did not have authority to accept service for the party.
(4) The court may make an order under this rule even though the person to be served is not in
QLD or was not in QLD when the proceedings began
Ordinary Service
Used when personal service not required i.e.. Interlocutory applications
*** Cannot use ordinary service for an originating document***
R 112: variety of means provided,
a) leave with relevant adult at address;
b) if no one at address leave in a position where reasonably likely to come to persons attention;
d) posting it to address;
e) i) fax or ii) email.
R 113: Service in relation to a business
R 114: Service on a Partnership
R 115: Service on a solicitor
Substituted Service
R 116: form 9 interlocutory application seeking an order for substitute service:
(1): if for any reason, it is impractical to serve a document through personal or ordinary service, the
court may make an order substituting another way of serving the document. is not a way of
saying to the court this is really too hard in the circumstances can you give us an easier way to do
it
(2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the
document to the attention of the person to be served. suggest ways the document can be
brought to the attention of the person to be served (i.e. advertise in newspaper, magazine,
associations, clubs, service on relative, leave at place of work, at home etc.)
(3) The court may, in the order, specify that the document is to be taken to have been served on
the happening of a specified event or at the end of a specified time.
(4) The court may make an order under this rule even though the person to be served is not in
Queensland or was not in Queensland when the proceeding started if you can anticipate where
a person is going to be the court would expect you to be able to catch up with that person and to
affect personal service.
Miscamble v. Phillips and Another [1936] St R Qd 272: the primary objective of substitute
service is to bring to the knowledge of the person in respect of whom substituted service is
sought, the whole proceeding so that he can take steps as he thinks proper to protect his interests
and rights. It is not proper to substitute service of process...when there is no belief that the service
will bring the proceedings to the knowledge of a person or of any person representing his
interests. This goes back to due process or natural justice. We need to bring proceeding
to the knowledge of the person against whom were about to start proceedings. So that the person
can protect its interest and rights.
Porter v. Freudenberg [1915] 1 KB 857 at 888:
Test: 1) practical impossibility of actual service; and 2) the method of SS proposed is one which
will in all reasonable probability be effective to bring knowledge of write to the Defendant.
- If Defendant cant be served personally because not within jurisdiction cant then use SS.
A defendant has three choices once served with an originating proceeding :
1) Do nothing, in which case a default judgment may be entered.
2) Enter an appearance, indicating that the action is to be defended and providing an address for
service of all future documents
3) Enter a conditional appearance, objecting to some irregularity (e.g. as to service) or objecting to
the courts jurisdiction.
Informal Service
R 117: If -
(a) for any reason, a document is not served as required by this chapter but the document or a
copy of it came into the possession of the person to be served; and
(b) the court is satisfied on evidence before it that the document came into the persons possession
on or before a particular day; the court may, by order, decide that the possession of the document
is service for these rules on the day it came into the persons possession or another day stated in
the order.
Service and Executions Proceedings Act (SEPA)
s 13: Applies to civil proceedings
s 15 (1): An initiating process issued in a State may be served in another State.
[Note: State is defined to include Territories: s 5]
(2) Service must be affected in the same way as service of such an initiating process in the place
of issue.
(3) Service on a company as per s 9
(4) Service on a Body Corporate as per s 10.
(5) Service on a body politic (e.g. the Commonwealth or a State) must be affected in the same way
in which process of the Supreme Court of the State in which service is to be affected may be
served on a body politic.
s 16: need prescribed noticed attached to process served. Regulation 4 - prescribed notice is
Form 1
s 17: time for appearance - longer of 21 days or time allowed by issuing court (i.e. 28 days)
Service Outside Australia
Contracts:
R124(1)(g)-(i)
(g) a proceeding relating to a contract-
(i) made in QLD; or
(ii) made by 1 or more parties carrying on a business or residing in QLD; or
(iii) made by or through an agent carrying on a business or residing in QLD on behalf of a principal
carrying on business or residing outside QLD; or
(iv) governed by law QLD
(h) a proceeding based on a breach of contract committed in QLD, regardless of where the
contract was made and whether or not the breach was preceded or accompanied by a breach
(wherever occurring), rendering impossible the performance of a part of the contract that out to be
performed in QLD
(i) A proceeding based on a contract containing a condition by which the parties agree to submit to
the jurisdiction of the court
R127: Service of other process by leave
The court may, by leave, allow service outside Australia of the following
(a) an originating process for a proceeding under an Act if service is not authorised under rule 124;
(b) an application, order, notice or document in a pending proceeding.
Torts Committed Within the Jurisdiction
R124(1)(k): An originating process for any of the following may be served on a person outside
Australia without the courts leave for a proceeding based on a tort committed in QLD
R129: How service is to be performed (2) must respect the law of other country
THE DEFENDANTS PERSPECTIVE
A defendant has 3 choices once served with an originating proceeding:
1. Do nothing, in which case a default judgment may be entered.
2. Enter an appearance, indicating that the action is to be defended and providing
an address for service of all future documents. (NITD form 6)
3. Enter a conditional appearance, objecting to some irregularity (e.g. as to
service) or objecting to the courts jurisdiction. yes Ill defend the claim but
there is something wrong with it
Time Limits to file NITD
The claim tells the defendant(s) the time within which the NITD is to be filed.
R 137(1): if claim served within Qld, NITD must be filed within 28 days of service of Claim:
If served outside Queensland but within Australia, SEPA s 17, whichever is the longer of:
21 days; or period which would have been permitted if process inside place of issue: 28 days: Qld.
see rules 124-129 for process served outside Australia
105(2): A defendant does not have to wait until service of a claim to file NITD.
He or she may file upon issue of the originating process
Requirement for NITD
R135: No step without NITD
R136: D may act by solicitor or in person
R137: Time for NITD is 28 days after claim is served
Rule 139(1): provides the NITD must:
(a) be in the approved form (form 6); and
(b) have the defendant's defence attached to it; and
o Difference between defence and counterclaim
o Contributory negligence = defence, not counterclaim
(2) signed and dated
Detail
The defendants address for service and that of the defendants solicitor must be given.
The manner of service is ordinary service because theyre not originating documents
Conditional NITD (Form 7)
Provides a method of approaching the court while preserving rights. A conditional NITD protects the
defendant from a default judgment but preserves the right to take any objection based on lack of
jurisdiction and other irregularity.
Note: the defendant is bound by the courts decision if it determines it has jurisdiction.
Note: the court has discretion to waive irregularities in service
Unconditional NITD (Form 6)
Entering an unconditional NITD has the effect of waiving any irregularity in the claim.
Further, the plaintiff does not need to prove service, so any irregularity in
service is waived (e.g. it makes good the service of a stale claim which has not
been renewed).
It amounts to a submission to the jurisdiction of the Court.
If a D responds and D says Im fine I have an intention to defend, clearly they
have been serviced with a document so the P didnt have to prove service
The manner of service is ordinary service because theyre not originating
documents
Filing and Service:
Rule 141:
The NITD is filed in the registry out of which the originating process issued, in duplicate (or to be
safe, triplicates) and a sealed copy given back to the defendant.
Rule 142:
The sealed copy must be served on the plaintiff (a) on the same day or (b) as soon as practicable
after it is filed at the plaintiffs address for service (detailed on the claim).
- Ordinary service is fine (by hand, fax, and email)
- Plaintiff must then issue a reply.
Who may file/serve NITD?
Individuals:
Only a defendant may enter an appearance, either in person or through a solicitor
In addition, by any person allowed by special leave of the judge.
Special rules in the case of infants or others under a disability, allowing guardian or similar person
to file: RR 93, 96, 136.
Corporations:
A corporation enters a NITD through its solicitors, unless it obtains leave of the court: RR135,
136.
Partnerships:
A partner must appear individually in her/his own name, Qld R 85.
Third parties:
Required to file NITD (R 197) as are persons added or substituted as defendants (R 207).
*Do not file a NITD without instructions, because it may be vacated.
Forms
Title - Form 1
Claim - Form 2 (to commence proceedings)
Statement of Claim - Form 16
Notice of intention to Defend - Form 6 (Unconditional) and Form 7 (Conditional).
Defence - Form 17
Defence and counterclaim Form 18
Pleadings governed by R 146 (form) and R149 (content).
Failure to Issue NITD
If fail to file in time, then plaintiff may seek default judgment; but you can still file unless and until
default judgment is obtained (so a slack plaintiff may give the defendant more time ). Not
necessarily 28 days because the plaintiff can allow the D extra time until they apply for default
judgement.
Withdrawing a NITD
A NITD can be withdrawn: with leave of the court or the consent of the other parties: R 306.
After withdrawal of NITD, the proceedings continue as if there had never been an appearance.
The defendant is at risk of default judgment.
Plaintiffs response to NITD (REPLY)
A Plaintiff should respond to allegations made by a defendant. He or she does so in a Reply
R 164(2) Unless the court orders otherwise, any reply must be filed and served within 14 days
after the day of the service of the defence. In QLD if plaintiff doesnt file a reply, you are taken to
have admitted any allegations that were raised in the defendants defence and can get a default
judgment against you for the defendants counter claim
- Ordinary service is fine
*R 164 applies to all replies replies must be sent within 14 days.
Counterclaim against Plaintiff
s.177 counter claim = form 18
In addition to a defence, a defendant may issue a counterclaim against the Plaintiff instead of
bringing a separate proceeding
A defendant may counterclaim against plaintiff(s) so as to facilitate the joint trial of two claims
and to enable the Court to pronounce a final judgment in the same action on both claim and
counter claim
178(1) Counterclaim against an additional party:
A defendant may make a counterclaim against a person other than the plaintiff (whether or not
already a party to the proceeding) if
(a) the plaintiff is also made a party to the counterclaim; and
(b) either
(i) the defendant alleges that the other person is liable with the plaintiff for the subject matter of the
counterclaim; or
(ii) the defendant claims against the other person relief relating to or connected with the original
subject matter of the proceeding.
Example: where defendant (Y) alleges that the breach of contract occurred because a third party
(Z) (who becomes a defendant to the counterclaim) supplied defective products to the plaintiff (X).
Service of counterclaims
Rule 179: A counterclaim must be in the approved form (form 16) and must be included in the
same document and served within the same time as the defence.
Rule 182: Judge may strike out the counterclaim if inconvenient, or order it heard separately
Service of Counterclaim
Rule 178 (2): if a defendant counterclaims against a person who is not a party to the original
proceedings, the defendant must
(a) Make the counterclaim; and
(b) Serve the defence and counterclaim and the plaintiffs statement of claim on the person within
the time allowed for service on a plaintiff personal service as it is an originating process (R105)
*Ordinary service on plaintiff (at plaintiffs address for service).
*Personal service (on a person not already a party) -
*A counterclaim is a separate claim just for convenience it is dealt with at the same time
Response to Counterclaim
R 180: plaintiff or other defendant to a counterclaim must file answer to a counterclaim, by filing
and serving an answer this corresponds with R164.
R 164: Answer must be filed and served within 14 days after served or if not party to original
proceeding 28 days (like a NITD). If P fails to answer, default judgment may be entered.
- Defendant may file Reply to the Answer must be filed/served within 14 days.
- CC is action in own right, if P discontinues Ps proceedings, CC may still proceed to court.
Third Party Notices
Only defendants can issue TP notices (whether original defendant or defendant to a counter claim)
The relationship between a D who issues a TPN and the TP is that of plaintiff and defendant.
Distinguish Btw Third Party Notice & Counterclaim
TPN: D says there is someone else who should be punished with me A TPN enables D to join
in the action any person against whom the D claims relief related to the Ps claim. A D may incur a
liability to the P because of the default or misfeasance of another person, who the P has not sued.
Use TPN where defendant claims against the TP a contribution or indemnity, relief or remedy
connected with original action, or necessary to join TP to answer any question relating to original
subject matter (see rule 192)
Counterclaim: a counterclaim, the person who is issuing it is regarded as a Plaintiff and they are
saying they have an action against the plaintiff on the other side. A counterclaim is issued by a
defendant but they are wearing there plaintiff hat. For TPN party notices you have to be a
defendant to issue a TPN
R 192 Reason for third party procedure
A defendant may file a third party notice if the defendant wants to
(a) claim against a person who is not already a party to the proceeding a contribution or indemnity;
or
(b) claim against a person who is not already a party to the proceeding relief
(i) relating to or connected with the original subject matter of the proceeding; and
(ii) substantially the same as some relief claimed by the plaintiff; or
(c) require a question or issue relating to or connected with the original subject matter of the
proceeding to be decided not only as between the plaintiff and the defendant but also as between
either of them and a person not already a party to the proceeding.
R 197: 3rd party should enter an appearance (NITD/defence) or may suffer default judgment
The court is going to be hesitant to give a default judgment until the main action between the
plaintiff and defendant is resolved, until then they are not going to put a figure on it and say this is
how much the 3rd party needs to contribute.
If original plaintiff is successful against original defendant, a successful third
party action allows the defendant to claim an indemnity or contribution from the
TP. They will decide that principle or primary relationship before they decide
how much the 3rd party needs to contribute, makes sense need to establish
how much the D is liable
A third party may counterclaim against the defendant R 200.
Remember! If there is a counterclaim, a plaintiff in the original action becomes a defendant may
in turn issue a TPN against another.
PLEADINGS
Pleadings will be sent along with a claim R.22(2)(b) by the plaintiff on the defendant. The
defendant will reply with a NITD (141) which incorporates a defence (139(1)(b)) and may also
have pleadings that admit, deny, or non-admit.
Nature of Pleadings
Pleadings are documents exchanged by the parties to litigation in which they set out the material
facts which they allege and intend to prove at the hearing of the action
Pleadings are the means by which each party states its case.
Claim, statement of claim, NITD, 3rd party notices collective word for all of them is pleadings,
documents that are drafted and filed in courts and then exchanged after
Banque Commercials SA (Enliq) v Akhil Holdings Ltd (1990) Pleadings are binding at trial
But courts have tended to favour merits over procedure when considering amendments
Queensland v JL Holding: D wanted to amend their docs and the Kirby said it is justice that wins
the scales over case management
But the case that turned it up back the other way Aon v Risk Management: this was parties
wanting to amend their docs & the Crt said no case mgmt. deserves more attention b/c when we
mean justice we mean the world at large, anyone waiting to get to the court to get there case heard
But note Rigato Farms Pty Ltd v Ridolfi per de Jersey, CJ: Parties do not have an inalienable
right to a hearing of all issues on the merits. Meaning in practice, if you are drafting these docs
and have forgotten to add something (cause of action, offence etc.) sometimes the court will give
you leave to amend your docs but sometimes the Crt will say too late to change things now
General Rule: A party who doesnt accept an offer and who
Form of Pleadings subsequently receives a judgment less favourable than the
R 146(1): A pleading must: offer can be penalised by adverse cost orders, even if you
(f) be: win.
divided into consecutively numbered paragraphs/subparagraphs; Offers to settle under UCPR
Each containing, as far as practicable, a separate allegation. R 354(1): An offer to settle can be made at any time before judgment is given
Rule 149(1): each pleading must be How it is Done
(a) brief comprehensive but brief R 353:
(b) material facts, not evidence allegation you were driving at 140 km evidence comes from (1) A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or
speed cameras more of the claims in the proceeding on the conditions specified in the offer to settle
(c) warn of matters of surprise defence of contributory negligence (cant bring it in last minute) (2) A party may serve more than one offer to settle
(d) specify relief (3) An offer to settle must be in writing and must contain a statement that it is made under this part
(e) identify statutory provisions founding claim or defence. If youre relying on the ACL or any
statue need to mention it R355(1): It must remain open for acceptance for 14 days (unless a longer period is specified)
R358(1): An offer is accepted by written notice served on the offeror or their solicitor
Rule 149(2) may plead a conclusion of law or raise a point of law - if also plead material facts in
support. Not enough to say Woolys was negligent and I suffered injuries. I have to say a Failure to Comply with offer
reasonable supermarket would clean every 15 minutes or put up signs etc. need to be particular R 365: Where a party fails to comply with the terms of an accepted offer, the other party may
how you plead negligence (a) Continue with the action as if the offer had not been accepted, or
(b) Apply to the court for judgment in terms of the offer this option is best always take this one,
Matters to be specifically pleaded always get a judgment for the terms that were agreed to especially when there is a possibility
R 150, without limiting rule 149, the following matters must be specifically pleaded, includes: someone might not comply if party breaches the judgment it is a contempt of court
(a) breach of contract or trust
(b) every type of damage claimed including, but not limited to, special and exemplary damages, Failure to Accept an Offer to Settle
(c) duress R 360: If plaintiff makes offer, defendant doesnt accept, plaintiff obtains a judgment no less
(e) estopple favourable - (P does the same or better at trial) than the offer to settle, the court must order the
(f) fraud, defendant to pay the plaintiffs costs (including pre-offer costs) calculated on an indemnity basis.
(g) illegality, R 361: Where defendant makes offer, not accepted by plaintiff, and the plaintiff obtains a judgment
(h) interest (including rate and method of calculation) not more favourable P still wins but the win is no better than the offer made by D - to the
plaintiff than the offer to settle; the court must order:
Pleadings sufficient particulars must be given apportionment of costs
R 157: a party must include in a pleading particulars necessary to. (see section) (3)(a): the defendant to pay the plaintiff's costs, calculated on the standard basis, up to and
R.160: Particulars should be provided in pleadings including the day of service of the offer to settle (pre-offer costs), and the general rule is the
R 160(1): unless inconvenient. winner gets their costs covered by D court allowed recover for P up to the and including the day
If not, ask your opponent for further particulars through correspondence: Rule D serviced their offer in accordance with R 681
160(2). Date proceedings started by P
Or make application to the court under rule 161 for order to supply further and Date of service of offer by D
better particulars. Date of judgment
Rule 162: application to Court to strike out particulars. (3)(b): the plaintiff to pay the defendants costs calculated on the standard basis, after the day of
service of the offer to settle (post-offer costs). any costs incurred by D after the date of their
Guidelines to Plead a case if youre a Plaintiff
offer is paid by P
1. Identify the parties to the proposed action and how they are involved.
2. Statement of claim must set out the material facts (but not evidence) relied on
Offers to Settle Examples
to support the claim made must disclose a cause of action (Rule 22)
Lauchlan v Hartley: involved claims of neg and cont. neg. Def paid into court a total of $12000.
3. Give particulars (no surprises for other party): (Rule 160)
The TJ awarded $16875. Ordered each party to pay their own costs.
a. Particulars of claim (allege material facts sufficient to
Maitland Hospital v Fisher (No 2) (1992): Plaintiff was awarded costs on a full indemnity basis
establish each element of the CoA.
because she recovered $206,090 (plus costs) by judgment, having earlier offered to compromise
i. E.g. negligence: material facts
for $200,000 (plus costs) Amount of the deficit is small (2.5 % of the jment sum), but it is real
sufficient to establish a duty of care
and not trivial or contemptuous - For a person in the position of the respondent, who was a kitchen
owed by defendant, breach of that duty,
maid when injured in the service of the appellant, $6090 is a real sum.
causation, consequential damage
ii. Include times, dates, place.
Formalising Settlement Agreements
4. Include anything which must be specifically pleaded (Rule 150(1)):
1. One of the terms of the settlement may be that the terms shall be made an
a. particulars of negligence (must be specifically pleaded a
order of the court. Parties can obtain a judgment by consent. Proff likes this
reasonable person would do this)
one!! Because you can get enforcement proceedings
b. particulars of damage + interest (must be specifically
pleaded).
2. The action may be stayed, on terms scheduled to the order staying
5. Provided the necessary elements of the cause of action are pleaded, the
proceedings, except as necessary for the purpose of carrying such terms into
plaintiff should not try to anticipate the defendants defence. P gets to
effect. Parties given liberty to apply if necessary to carry terms into effect.
respond to Ds defence in another document called reply
6. Comply with procedural requirements (titles, forms etc.) and jurisdictional
3. Parties enter into a contract in the terms agreed. No court orders other than
requirements.
discontinuance. Courts jurisdiction at an end. If the terms are not complied
Pleading a case Defending with, injured party must seek remedy under the new agreement. This is the
You must deal with (answer) every allegation made by your opponent. worst one because your back to square one if someone does not comply to
Choices are to (R 165(1)): terms, you need to start proceedings all over again
Deny it effect of a denial is to put the other party to proof of the allegations
denied Discontinuance & Withdrawal
Non-admit it operates in the same way as a denial - basically saying I - Plaintiff may discontinue the whole or any part of the action before receipt of a
dont have sufficient information at this moment in time to be able to say I admit defence a unilateral decision.
it or deny it. - R 304: Once a defence has been received, discontinuance is by leave of the
court or consent of other parties:
Admit, or
- If there is more than one plaintiff, a particular plaintiff can only discontinue with
Plead another matter, Raise a point of law; K is void, deny the making of a
the court's leave or the consent of the other parties (one of a number of co-
contract alleged by the plaintiff
o Make an inconsistent alternative plea e.g. deny the making plaintiffs cannot discontinue the action on his own account).
of a contract alleged by the pl, and also allege that if there - If there is a counterclaim, a plaintiff can only discontinue with leave of court or
is a contract it is unenforceable because of the absence of consent of defendant. counterclaim doesnt disappear P must respond to it
writing (sale of land), or or run risk of default judgment
o Proceed to counterclaim e.g. for breach of contract - A plaintiff may discontinue against one or more defendants without
*Sometimes more information comes in and you can amend your pleadings. discontinuing against other defendants.
- R 307: Plaintiff is usually liable for the defendants costs on discontinuance
You must deal with (answer) every allegation made by your opponent because Rule 166(1) R310: Discontinuance does not give rise to issue estoppel and does not preclude a plaintiff from
provides that a fact is deemed admitted unless it is denied or not-admitted or there is a deemed bringing fresh proceedings
denial (R 168). INTERLOCUTORY APPLICATIONS [FORM 9]
What is an Interlocutory Application
Other Points to Note: The process for obtaining interlocutory orders is strikingly similar across the
R 165(2): if plead by non-admission a consequence of that is you may not call / give evidence on Australian jurisdictions.
that fact. The party seeking interlocutory order files an interlocutory application (or a
R 166(3): can only plead non-admission after: (a) party has made inquiries & (b) reasonable summons or motion) with the court, which outlines the orders the party is
investigation & (c) remain uncertain over truth if new evidence comes up during trial use Form 9 seeking, along with affidavits outlining the facts, which the party claims, justify
application the order being made.
R 166(4): a denial or non-admission must be accompanied by a direct explanation for the partys The court provides a hearing date for the application and written notice of the
belief - if not supplied R166(5) deems allegation to have been admitted. time and date of the hearing is served on the other party.
Pleading A reply (to a defence or answer) The judicial officer responsible for managing the case a Master or Registrar
In Qld, if the plaintiff disputes allegations in the defence, the plaintiff must serve a reply, otherwise where there is a master calendar system of case management or the managing
there is an implied non-admission of the defence allegations (R 168). judge if the case has been assigned to a judge, hears the hearing.
If the plaintiff needs to allege further facts to rebut a defence, this is where it is
done (not in the original statement of claim). Types of Interlocutory Applications
You can only use a reply to meet the defence; it cannot be used to raise a new
cause of action (R 154) (1) Dispositive applications - so called because the application may dispose of the
matter.
Pleading specifics. - Application for Default Judgment plaintiff/defendant fail to file Defend
You must also comply with R 150(4). CC/NTID
A party must specifically plead a matter that: - Application for Summary Judgment Claim or Defence is Crap
(a) the party alleges makes a claim or defence of the opposite party not maintainable; or (2) Applications for procedural orders (e.g. to amend pleadings).
(b) shows a transaction is void or voidable; or - See cases for case mgmt. (where court allowed leave for amendment)
(c) if not specifically pleaded might take the opposite parties by surprise; or - Depends on whether: in the middle of trial, whether trial to start today, whether
(d) raises a question of fact not arising out of a previous pleading. matter not yet listed
- Applications to join/sever parties and causes of action
Pleading a Case the end o Rule 68: Court has power to order separate trials if the
R 168 facts in last pleading before closure of pleadings deemed subject of non-admission. last inclusion of a party or cause/s of action may delay the trial
pleading = last document of the proceeding, prejudice another party or is otherwise
R 167 unreasonable denial / non-admission penalised in costs inconvenient.
R 171 Court may strike out pleadings if: o Rule 69: the Court has power to add, substitute or remove
Discloses no reasonable cause of action/defence parties to a proceeding
Tendency to prejudice/delay fair trial - Applications to amend the pleadings i.e. add a cause of action
Unnecessary or scandalous o R 375(1): at any stage of a proceeding, the court may
allow or direct a party to amend a claim a pleading, an
Frivolous or vexatious
Abuse of court process application or any other document in the way and on the
conditions the court considers appropriate. general
power of court to amend docs
Note on Pleadings and counterclaims
o (3): If there is misnomer of a party, the court must allow or
R 179: A counterclaim must be in the approved form and must be included in the same document
direct the amendments necessary to correct the misnomer
and served within the same time as the defence.
Defendant generally follows the same pleading requirements as for a statement of claim must i.e.) Fred Smith should have been Fred Smith Pty
o Queensland Jail Holdings first, not given permission to
reveal a cause of action by pleading necessary material facts.
Except: no need for repetition: And by way of counterclaim the defendant says as follows: 1) The amend pleadings, HC overruled. Case management case.
defendant repeats and relies on the matters set out in paragraphs 1, 2, 3 and 6 of his defence. Talked about D wanting to add another defence. The trial
Then allege additional facts relied on. off 6 months, other party wouldnt suffer prejudice as has
Encouraging Settlement plenty of time to react to change of pleadings.
o Aon: Overrules? See First page of Template.
Two ways:
o Salis Case: No adjournment granted, lawyer held to be
1. Without Prejudice rules (CL)
not asking for adjournment for reasonable reasons, had
Applies to protect communications between parties to a
ulterior motive.
dispute made for the purpose of negotiating a settlement.
Even if LAA Expired
Full term is W/o prejudice save as to costs o R 376(2):Where a mistake is made in the name of a
2. Offers to settle regulated by rules as to costs.
party, the amendment rules can be used to correct that
Court has power to use a costs order to penalize parties
mistake even where the effect of the amendment is to
who fail to accept certain settlement offers. add a new party.
R 352-365
o (4): the court may give leave to include new CoA only of
even if LAA (3/6 yrs. expired)
 o (a) the court considers is appropriate the defendant or the claim by the plaintiff is crap! The court does not want matters to go to trial if Duty to Disclose
o (b) the new CoA arises out of the same facts or they dont need to! R 211(1) party to a proceedings has duty to disclose to other parties - documents
substantially the same facts as a CoA for which relief has Paperwork: - (a) E1: in possession or under control of first party, and with your
already been claimed in the proceeding by the party - [Form 9]: Interlocutory Application for Summary Judgment accountant or bank = within your control
applying for leave to make the amendment For Plaintiff - (b) E2: directly relevant to allegation in issue (an allegation remains in issue
o Rule 74(5): for a limitation period, a proceeding by or - R 292: Defence is CRAP!!! until it is admitted, withdrawn, struck out or otherwise disposed of).
against a new party (whether by addition or substitution) is o (1): A plaintiff may, at any time after a defendant files a - (c) E3: duty continues until the proceeding is decided doc may come into
taken to have started when the original proceeding started, NITD, apply to the court for judgment against the existence between before the matter goes to trial or sometimes during the trial.
unless the court orders otherwise. i.e. Fed Smith to defendant. The duty which attaches to the document is still live; it still exists until it is
Fred Smith Pty Ltd court will assume you started o (2): The court may give judgment for the plaintiff if it is decided.
proceedings in the right name satisfied that: ***On exam dont need to give s211 verbatim but summarize the relevant elements from s211
- Applications for discovery (a) the defendant has no real prospect
- Applications for further and better particulars of the opponents pleadings. of successfully defending all or a part of R 212
(3) Applications for interim relief (e.g. to preserve property, to preserve evidence, to preserve the the plaintiff's claim; and (1) The duty of disclosure does not apply to the following documents:
status quo). (b) there is no need for a trial of the - (a) a document in relation to which there is a valid claim to privilege from
claim or the part of the claim. disclosure; (LPP) main focus
Dispositive Applications o Ask for Costs o Legal professional privilege
Default Judgment For Defendant Limb 1: Advice
- R 293: Statement of Claim is Crap!!! (no CoA made out) Limb 2: Ligation
Generally see rules 281-290 UCPR
o (1) A defendant may, at any time after filing a NITD, apply o Privilege Against Self-Incrimination
- If a defendant has failed to file a NITD (usually within 28 days), the plaintiff may
to the court for judgment against a plaintiff. dont have to disclose a document
seek default judgment
o (2) the court may give judgment for the defendant against which is self-incriminating
- If a plaintiff fails to defend a counterclaim with an Answer (usually within 14
days), a default judgment may be entered against the plaintiff. the plaintiff If the court is satisfied: o Public Interest Privilege
Defendant (including plaintiff on c/claim) can still file NITD unless and until default judgment (a) the plaintiff has no real prospect of - (b) a document relevant only to credit;
is obtained. succeeding on all or a part of the o If a W answers a question and the answer only go towards
To obtain default judgment, P must file an affidavit proving they have served the defendant plaintiff's claim; and credit you have to accept the Ws answer as final, the court
(b) there is no need for a trial of the does not have time to go down every rabbit hole particularly
claim or the part of the claim. those that go towards credit, also known as the finality rule.
Procedure to obtain Default Judgment o Ask for Costs - (c) an additional copy of a document already disclosed, if it is reasonable to
R 282: To obtain default judgment, plaintiff must file an affidavit of service prove the documents suppose it contains no change/difference likely to affect the outcome of the
were served Part 4: can end proceedings early via ADR proceeding.
o **This provision goes back to a time when copies were
R367: distinguishable.
(1) court can make any order/direction about the conduct of a proceeding regardless of the rules (2) expert reports NOT privileged
Liquidated Demand or Debt (2) in deciding whether to make an order, interest of justice is paramount court cant so - Most often quoted rule in the UCPR
(R 283): where the claim can be quantified by precision. This is an administrative task; judicial whatever it wants. - these reports would normally be covered by the legal professional privilege
consideration is not necessary. Final default judgment may be entered by registrar. absolutely under the CL, but along came this rule which added that expert reports are not
certain and capable of calc
privileged
DISCOVERY, DISCLOSURE, TRIAL PREPARATIONS
Paper Work
How are Documents Disclosed?
- [Form 25]: Request for Default Judgment only occasion where its an
interlock app but not using form 9 DISCOVERY R 214(1): disclosure is effected by:
- R 282: Affidavit of Service must prove service was made - (a) delivering a list of the documents to which the duty relates and also those
o where part payment has been made, need affidavit of debt for which privilege is claimed, and can do this in a vague way i.e.) we have
When:
to set out what was paid and what is now owing a bundle of correspondence between me and my solicitor list drawn up in
- Duty to disclose (s211(1)
- [Form 26]: Draft Judgment you have to draft a judgment that you are affidavit form
- R209: what it applies to (a) proceedings started by claim
seeking - (b) As requested, delivering copies of the documents listed (except privileged
- R211: states what the duty is - parties have to exchange doc in their
INTEREST ones).
possessing and control
Rule 283: allows plaintiff to - o Preparation of list that fall within the ambit of the duty.
- S212(1) some documents are privileges (solicitors advices, files are privileged
- (5) abandon a claim for interest file a request for judgment for no more than legal professional privilege)
the amount in the Claim; R 215: party may require production of the originals for inspection.
- R 214(2)(e): within 28 days of close of pleadings is the time limit you have for
- (6) claim an agreed rate where one is agreed. (The parties may have agreed discovery
that interest is payable at an agreed rate - usual in the case of loans). R 216: if inconvenient to deliver/produce (as required under r 214/215), disclosure can be effected
What:
- (7) accept a rate not higher than that set in the PD (10%)(obtainable from the by producing for inspection and notifying in writing convenient time and place for inspection
- Medical reports, expert reports, documents, photographs, exhibits that are
Registrar); or directly relevant to the issue
- (8) argue a case for higher interest than PD (before the court). R 217: where documents are disclosed by producing them, documents must be contained together
- R 215: party may require production of the originals for inspection.
o This may take the main claim into the unliquidated category and arranged and identified - accessible and convenient producer must provide
- R 212(2): Expert reports are not privileged from disclosure
- facilities for inspection and copying,
as you will have to prove why you should get the higher - R221: car accident quotes from drivers needs to be disclosed if other
- person to explain,
rate and thus turned what is a certain/known sum into a party asks for it
unknown*** - list of privileged documents
How:
o R283(4): a debt or liquidated demand includes interest if a. R214
R 219: if fail to inspect, only get second chance if tender reasonable costs of providing another
the rate of interest is b. S227: notice that you want the parties to bring original or best
opportunity
(a) limited to the rate agreed to by documents to trial
the parties; or c. R 223(1): court may order disclosure, affected by delivering copies or
When Are Documents Disclosed:
(b) not higher than the rate specified in producing for inspection if parties dont oblige/play by the rules
the practice direction. d. R225: consequences of non-disclosure Rule 221: A party may disclose to another party a document relating only to damages only if the
- CPA s58(3): the court may order that there be included in the amount for e. List has to be in affidavit form other party asks for its disclosure. typical document would be motor vehicle accident involving
which judgment is given interest at the rate the court considers appropriate for quotes for repair P.I matter is quite different
all or part of the amount and for all or part of the period between the date when What documents can be withheld and why? Privileged documents
the cause of action arose and the date of judgment. if you dont ask for it R 214(2)(e): within 28 days of close of pleadings is the time limit you have for discovery
from the date CoA arose they will give it from the date proceedings were filed Adverse cost implications to partys actions: R 225(1)(c): party who does not disclose may suffer
o Practice Direction 7 of 2013: interest rate = 10% costs penalties Avoidance of Disclosure:
COSTS _______________________________________________________________________________ R 213: PRIVILEGE
R 283(2)(b): the plaintiff may file a request for judgment for an amount not more than the amount __________ - if party claims privilege and
claimed, together with the following costs Processes provided by the rules to compel parties (and non-parties) to assist each other in - other party challenges
(i) costs for issuing the claim; narrowing of, and preparing to prove, the issues for trial. - privilege claimant must within 7 days file and serve affidavit stating the claim:
(ii) costs for obtaining judgment; Can gain access to: affidavit must be made by individual who knows the facts giving rise to the
(iii) any other feed and payments, to the extent they have been reasonably uncured and paid - Factual information, Documents claim
R 289(1)(2): if defendant satisfies claim, but not the extra amount to cover legal costs plaintiff may - Exchange of info and docs often carried out informally by agreement. R 224: court may relieve party from duty of disclosure
seek default jment for costs only But there are formal means provided by the rules
- R 289(3): Registrar may give judgment for costs 1. voluntary and Documents May be disclosed by Order:
2. compulsory disclosure of facts & documents. R 223(1): court may order disclosure, affected by delivering copies or producing for inspection
Unliquidated Damages Discovery generally done in conjunction with and after close of pleadings pleadings set
relevance/parameters of the case. R 223(2): court may order party to file and serve affidavit that document never existed, or does not
(R 284): Plaintiff must go before court to prove how much they should be owed. this involves Ethical obligation on lawyers to:
proof i.e.) receipts, statements exist and when it ceased to exist or passed out of possession or control
- ensure parties comply fully and
- explain the way discovery works R 223(5): court may inspect document
Damages: from breach of contract or negligence where you are seeking personal injuries or loss of
- when evidence is disclosed to you in this process of discovery, you cannot go
profits, where it is uncertain, it is something you need to go before the courts and give receipts etc.)
and expose it to newspaper or Current Affairs etc. Consequence of Non-Disclosure
- R 284(2): Plaintiff files a request for judgment conditional on assessment of R 225(1): party who does not disclose
Timeline:
damages the registrar will give you judgment but he or she will not fill in the - (a) must not tender or adduce evidence as to contents w/o leave if you
- Institute court proceedings:
amount, the amount is sent off to court (trial just for amount, liability already have given evidence through an affidavit that it is not in your possession or
o Claim (e.g. seeking a final injunction to prevent breach of
determined when registrar gave judgment, registrar will elect the court control you cannot then turn up in court and say here is the document .
restraint of trade), or
R284(3): Registrar may grant judgment) - (b) is liable to contempt for non-disclosure
o Application (e.g. interim injunction to stop cutting down of
- R 507-512 - (c) may suffer costs penalties
tree). (2) Other party may apply for
Setting Aside Default Judgement - If a claim, then followed by: - (a) order staying/dismissing proceedings
These are the tests you need to satisfy in your affidavit material if you want to have a default 1. Further pleadings (NITD, defence, maybe c/claim & answer, reply): define the - (b) judgment or other order
judgment set aside: issues - (c) order for disclosure
Procedure 2. Interlocutory applications (e.g. for an order for F&B particulars, for discovery)
Rule 290: The court may set aside or amend a judgment by default. 3. Discovery - of facts and documents Documents to be Produced at Trial
- Defendant must: 4. Set the matter down for trial.
o Give a satisfactory explanation for the failure to appear In accordance with the best evidence, so far everything has been copies; it is not aimed at getting
(i.e.. Why you didnt file a NITD) the original documents to court. To go a step further you need R227.
Voluntary Admissions
o Establish no unreasonable delay in making the application Admissions of facts/docs can be made voluntarily R 227(1): Documents disclosed must be produced at the trial if:
since aware of default judgment - In a partys pleading
o Demonstrate that s/he has a prima facie defence on the - (a) notice to produce them has been given with reasonable particularity; and
- By notice served R187 and R189 - (b) their production is asked for at the trial.
merits.
(2) A document disclosed under this division that is tendered at the trial is admissible in evidence
Cook v D A Manufacturing Co P/L & R 187 voluntary admission against the disclosing party as relevant and as being what it purports to be.
Anor: Courts discretion is wide and
unfettered R 188 admission in pleading, or by voluntary notice can only be withdrawn by leave. Solicitors Duty
o Key: The applicant must be able to demonstrate an - mechanism via which either party so it could be P asking D or D asking P,
arguable defence on the merits. R 226
notice where you can fill it out and serve it on the other party and ask the other
If Default Judgment Set Aside: (1) Solicitor must give court at trial signed certificate
party to make certain factual admissions and often parties fill these out
If D is successful in having jment set aside, s/he will be ordered to: (a) stating duty of disclosure has been fully explained to client and
voluntarily there is no compulsion involved
1. File and serve a defence within a stipulated time file NITD + Defence (b) if party is corporation, identifying individual to whom duty explained
court decides time limit (2) certificate must be prepared and signed at or immediately before trial.
R 189 Notice to admit facts/documents:
2. D agrees to pay the Ps costs involved on two things **Evidence of an unfavourable report may be adduced in cross-examination. Very damaging.
- (1) Party may serve another with notice asking to admit specified facts or
o Costs with respect to the default judgment documents
o Costs with respect to the application to set aside the default Non-Party Disclosure 242-247
- (2) If the party to whom notice is given does not within 14 days serve notice
judgment Defendant usually ordered to pay the disputing fact or document, taken to admit (for proceeding). R 242: party may require non-party to disclose documents by notice requiring production with 14
plaintiff's costs on obtaining the default judgment and - (3) If disputed, and later proved at trial, party must pay costs of proving that days of documents that are
plaintiffs costs on the application to set aside. fact. - (a) directly relevant to allegation in issue, and
- (4) Factual assertions which for exp the P is asking the other party to admit, - (b) in possession or control,
Other Defaults they might say: admit, deny, or say non-admit, and you may also plead a - (c) which non-party could be required to produce at trial.-
General Rule: conclusion of law (e.g. the contract was void b/c it wasnt in writing)
BUT, Not permitted if there is another reasonably simple and inexpensive way of proving matter.
R 280:
(1) If plaintiff / applicant defaults in taking a required step, defendant / respondent may apply to the There are some instances of compulsory disclosure: (PI statements, interrogatories, non-party
inspections, and subpoenas.) R 243: notice must
court for an order dismissing the proceeding for want of prosecution - (a) be issued in the same way as a claim
(2) court may dismiss proceeding DISCLOSURE OF DOCUMENTS
- (b) state allegation in issue
(3) order dismissing proceeding may be set aside only on appeal or by agreement What is it? on exam start with 209 and 210 - (c) include certificate by solicitor that there is no other reasonably simple
(4) court may set aside or vary order made in absence of the Plaintiff/applicant. R 209 applies to: inexpensive way of proving matter
a) proceeding started by claim; if it starts by a claim rules of discovery apply by virtue of R209 - (d) be in approved form
Rule 476: b) ordered to be continued as claim; - (e) be served like claim, within 3 months of issue
If defendant does not appear, plaintiff can proceed. If plaintiff does not appear, defendant is entitled c) if court directs, started by application. (2) However, the applicant may serve the respondent only
to dismissal of claim, and can go on to prove counterclaim (if there is one) defendant MAY submit
after the applicant has served all other persons who are required to be served under rule 244
to judgment. Court may set aside or vary judgment. Definition (serve first the owner of document or person about whom info sought, unless they are likely to
Summary Judgment fabricate evidence or perpetrate a fraud).
R 210 disclosure is the delivery or production of documents in accordance with this part.
This procedure arises where the Defendant has filed NITD. Arguing that there are special
circumstances that warrant a judgment without having a hearing. use this when the defence by R 414: Party can apply or Court can order non-party to bring documents to court.

Confidentiality of Disclosure
Material obtained by compulsory disclosure process may only be used for the
purpose of the litigation in which you are currently engaged.
If you hold them you may be contempt in court.
Distillers Company (Bio-chemicals) Ltd v Times Newspapers Ltd [1974] 3 WLR 728 :
discovered documents were made available to newspaper. Court restrained publication - which
was an abuse of the process of the court.
Home Office v Harman [1981] 2 WLR 310: solicitor held guilty of contempt of court for making
available to journalist documents obtained on discovery.
Central Qld Cement Pty Ltd v Hardy [1989] 2 Qd R 509: misuses of information provided in
supplementary witness statements given to press injunction granted.
When Disclosure can be Resisted
R212(1) The duty of disclosure does not apply to the following documents: (a) valid claim of
privilege
Communications may be protected from compulsory disclosure by law, rule of Court or Court order
if they are subject to one of three privileges.
1. Legal Professional Privilege main focus
This CL privilege protects communications between
lawyers and clients made for the dominant purpose of
seeking or providing legal advice and communications
made for the dominant purpose of use in, or in relation to,
existing or reasonably anticipated legal proceedings.
Limb #1: Advice
Limb#2: Litigation
Lawyers are not required to, nor must they disclose
information that falls within these categories.
Communications from a third party (such as an expert
retained to give advice in relation to litigation) to the lawyer
or the client may be privileged at CL, usually under the
litigation limb.
Abrogated by the Civil Procedure Rules in many
jurisdictions so to mandate the exchange of expert reports
prior to the commencement of litigation.
R 212(2): Expert reports are not
privileged from disclosure
RR 547-552: statement of loss and
damage and expert info in PI cases.
Includes communications in documents and
conversations and written reports
Does NOT include physical evidence
The bloody knife, smoking gun,
The stolen item etc.
Packer v DCT [1985] 1 Qd R 275:
Trust account ledgers in law firm not
protected
Client can waive privilege
Communications in furtherance of crime or fraud or abuse
of power are not protected
Public policy exceptions: whereabouts of a child: Re Bell;
ex parte Lees (1980) 146 CLR 141
2. Privilege Against Self-incrimination
A party need not produce for inspection documents, nor
answer questions under compulsion, where the contents
would or might tend to expose the party to criminal liability
or to exposure to penalties/forfeiture
No protection for corporations: Environment Protection
Authority v Caltex Refining Co (1993)
3. Public Interest Privilege.
The sort of documents usually protected would be defence
documents or those used by the police force or those
concerning the affairs of government at the highest levels.
Disclosure would inhibit the proper running of the defence
forces, police force or executive government.
The claim may be made:
(i) where the crown is a party; and
(ii) where crown documents are sought,
even if the crown is not a party
4. Without Prejudice
Communications for settlement not to be disclosed except
on Q of costs in litigation
Field v Commissioner for Railways for NSW (1957) 99 CLR
285
Marking communication without prejudice not necessary,
nor sufficient. Depends on whether the communication is
part of settlement negotiation.
PI MATTERS 4 provisions 547, 550, 427, 429
4 Rules for PI Matters: 427, 429, 547, 550. Bolded rules apply to ALL Proceedings. They say that
if youre going to rely on experts reports, you have to tender their evidence through a report. If the
other party wants to cross, they have to let you know.
547 and 550 only apply to PI matters where there has been a fatal injury. They say you to have tell
the other side all doctors who have examined you in a special statement.
Personal Injuries & Fatal Injury Cases
All expert reports must be disclosed, even if you do not intend to rely on them at trial because
R 547: Plaintiff is required to serve a statement of loss and damage (must include names and
addresses of ALL hospitals, doctors and experts who have examined the pl. or given reports).
R 550: Def is under a similar obligation, to deliver a statement of expert and economic evidence.
Expert Reports in Other Cases
What compulsion exists to disclose expert reports in other cases (not involving PI or fatal injury)?
427 and 429: makes disclosure of an experts report a condition of its admission at trial.
Evidence for Trial Experts
Remember experts give there evidence during the evidence in chief via a report rather than orally
from a W-box and 429 says you have to disclose the report
R426: duty of the expert witness is to the court
Rule 427: person intending to call expert must serve on other parties a statement makes
disclosure of an experts report a condition of its admission at trial
R 429:
(1) An experts report must be addressed to the court ad signed by the expert
(2) The report must include the following information:
(a) describing experts qualifications
(b) all material facts; whether written or oral on which the report is based
(c) reference to any literature or other material relied on by the expert
(d) any inspection, examination or experiment conducted by the expert
(e) summary of the range of opinions (if any) on the matter and reason why
expert adopted certain opinion
(f) summary of conclusion reached by expert
(g) statement about whether any readily ascertainable facts would assist the
expert in reaching a more reliable conclusion
Within 21 days after trial date set, otherwise may not adduce such evidence
without leave.
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) P/L (No 1) [1999] 1 Qd R 141 : all
ancillary documents (communications) relating to production of an expert report are still privileged.
If Bob calls up a DR and has a conversation over the phone, that communication is protected
R 423(b): Joint appointment of expert, to be the only expert to give evidence on that issue (unless
the court otherwise ordered).
R 429D: Costs sanctions may follow where multiple experts are needlessly retained in relation to
an issue
R 429B: Court may order experts confer and prepare document setting out areas of agreement
and disagreement and reasons
For Plaintiff claiming loss and damage
R547: (1) The plaintiff must serve on the defendant a written statement of loss and damage,
signed by the plaintiff, within 28 days after the close of pleadings. long list of things P has ti
disclose including (3)(e) (e) the names and addresses of all hospitals, doctors and experts who
have examined the plaintiff or who have given reports on the plaintiff's injury, loss (including
economic loss) or treatment;
R 367: lists the different directions the court can give (i.e. how long
Also for the defendant, who usually gets the plaintiff examined you can have for trial and how many witnesses you can call)
R550: Defendant's statement of expert and economic evidence o The court does have to take into account the interest of justice (s367(2) and
(1) A defendant must serve on the plaintiff a written statement of expert and economic evidence each parties right to a fair trial (s367(4)(a))
that includes the names and addresses of all hospitals, doctors, and experts who have given the S367(a) the court can may any order or direction even if its
defendant reports on the plaintiff's injury, loss (including economic loss) or treatment.
inconsistent with any other provision in the rules
(2) The statement must be served within 28 days after the defendant is served with the plaintiff's
statement of loss and damage, but before a request for trial date is filed. Civil procedure is very much discretionary
The judge can make an order inconsistent with the other thousand or
so rules in the UCPR
NOT IN NOTES
o Consideration given to use of ADR procedures the
Combination (R 287) biggest feature that made a huge difference is the use of
Other claims (R 288) ADR practices
Costs only (R 289) 1. Consent (S42) Parties can refer a dispute to ADR by filing a consent order.
Goods (R 285) Court then makes a referral order
Recovery of Land (common law claim) (R 286) 2. Court order (CPA S43) court may order ADR, UCPR R319
3. Referral on application (UCPR R319)
- When you amend, prep Docs again and underline new additions. 4. Practice directions regulate all cases. Sets timelines for the progress of a
R 376(4): although limitation period has expired, the court may give leave to make an amendment litigation matter once originating proceedings served.
to include a new cause of action if requirements of rule are met. a. Queensland v JL Holding Pty Ltd 1997
CPA - s16(2) The court may order an amendment to be made, or grant leave to a party to make b. Aon Risk Services Ltd v Australian National
an amendment, even though
University [2009] HCA
(a) the amendment will include or substitute a cause of action or add a new party; or b) the cause
c. Sali v SPC
of action included or substituted arose after the proceeding was started; or c) a relevant period of
d. Althaus v Australia Meat Holdings Pty Ltd [2009]
limitation, current when the proceeding started has ended. (3) discretion lies with court.
QSC 05
3) Application for Interim Relief 3. DISCUSS THE MAJOR REFORMS THAT HAVE BEEN MADE TO THE CIVIL PROCEDURE
RULES IN THE MOST COMMON LAW JURISDICTION IN THE LAST TWO DECADES. IN YOUR
Interlocutory Injunctions OPINION, HAVE THESE REFORMS BEEN SUCCESSFUL IN ENCOURGAGING PARTIES TO
DISPOSE OF PROCEEDINGS IN A SPPEDY AND EFFICIENT MANNER?
The court also has power to order an injunction to hold the status quo until final judgment is given.
1. Initial issues that existed
An injunction may apply not only to property, but to activities.
o Problems = system of litigation in crises, crippled by excessive delays
Injunction: or order by which a party to an action is required to do, or refrain from doing, a
particular thing. Injunctions are positive or negative, interim or permanent and costs
*To obtain an injunction, an applicant must establish: o Reasons = Over dependence on party control; Absence of judicial
That there is a serious question to be tried the applicant must make out a prima facie case for responsibility for effective use of resources; Over dependence on an
relief if the evidence on which the injunction is granted is accepted at trial; all-embracing trial.
That the balance of convenience between the parties favours an injunction. 2. Aim of Reforms
Beecham Group Ltd v Bristol Laboratories Ltd (1968) H Ct o Establishment of greater uniformity in the rules of courts - With a
single set of rules applicable to the SC, DC and MC unless the rules
Balance of Convenience
otherwise expressly provide (UCPR Rule 3) An obligation on
The court must consider the damage that could be done to the defendant by granting an injunction,
practitioners to inform clients about alternatives to litigation
especially if it is mandatory, as against the damage to the plaintiff if it is withheld.
3. Case Management
Any irreversible consequences of granting the injunction must be considered.
The stronger the serious question to be tried, the less emphasis need be placed on the balance of o The moment you start proceedings you are under the control
convenience favouring the applicant over the respondent. of the court. This is new because 30 years ago the court
The court normally refuses to grant an interlocutory or interim injunction unless the applicant gives
exercises no control over the cases that came before them
an undertaking as to damages (if loses at trial pay for any damage suffered by D)
thats why it use to take 6 years to get to trial.
o A stipulated and fixed timetable for events practice directions
s.260A Freezing Orders
Otherwise known as Mareva Orders regulate all cases. Sets timelines for the progress of a litigation
matter once originating proceedings served.
*Note: these may be done through form 5 applications. Sanctions for non-compliance Rule 5, S44,
R322 , R 429D,
Ensuring efficient use of judicial and
Negligently drafted documents by solicitors:
administrative resources
Cost order against practitioners (CL) where
- Cause of Action: This is a latent defect in documents; the document has been
negligently drafted the practitioner unreasonably initiates or
continues those proceedings. will amount to
- Deputy Comissioner of Taxation v Zimmerely (1998): solicitor drafted an
serious dereliction of duty. White Industries v
agreement, partnership was dissolving, needed to draft an agreement for one
of the parties, crucial word left out was indemnity, without that word in there, the Flower and Hart , Levick v Deputy
Commission of Taxation [2000] FCA
former partner was subject to a massive bill because the other partner was
4. Diverting matters to more suitable dispute resolution processes (mediation, case
suppose to take that bill, it was held that the damages were suffered when the
appraisal) - (CPA S43) court may order ADR, UCPR R319, R 319(1)
agreement between the parties was made, thats when the action of limit.
o Strict control of adjournments Sali v SPC, Salis Case
- Galsbey v Elliot (1987): involving a lease, option in a lease and sublease
was deemed to be void due to uncertainty therefore unforceable, the leasee o Early exchange of documents - R 209, R 210, R 211(1) party to a
knew about the defect 18 months before purchase, when the sale fell through proceedings has duty to disclose to other parties - documents
they tried to sue the lawyer within 6 years the lease failed, but the time limit 5. Pre-trial hearing and settlement conferences at which practice directions are given
was actually longer than 6 years, therefore they were statue barred, so the time R319(5), R 367, S367(a)
starts ticking when they signed the lease not when the lease was not carried o
out. A. MEDIATION
Two options for when the clock starts ticking IF ONE OR MORE OF THE PARTIES WANTS TO MAKE AN OFFER [5 MARKS]
Options #1 1. ADVISE THE [D] ON HOW HE CAN MAKE AN OFFER OF SETTLEMENT TO
- High Court in Wardley Australia Ltd v Western [P]?
the time period under s 82(2) will commence at some future date when the disadvantageous a. All negotiation occur without prejudice which protects the
communication for the purpose of negotiation
character or effect of the agreement [can] be ascertained and its impact upon events as they
unfold becomes known or apparent b. [D] can make an offer to settle any time before the given - R 354(1)
2. WHAT IS [P] REQUIRED TO DO IF [D] MAKES AN OFFER?
Contingency Loss: When there is a contingency loss, where the loss may or may not occur, the
time kicks in when the loss is suffered = contingency loss a. Since [D] is a party to proceedings s/he is entitled to offer settle R
353(1), [D] can serve more than one offer to settle R355(2).
Species of property involved, client executes the document, and if you are going to get less than
intended, youre going to be exposed to contingency loss, a loss that may or may not occur, court b. [D] must ensure that the offer to settle must be in writing and must
contain a statement that is made under this part R355(3) The
can only if you have suffered a loss, then you have a cause of action when the contingency is
suffered and the actual loss has occurred. period acceptance must 14 days (unless specified) R355(1) and the
This has to do with species of property (wardly) as opposed to personal injury offer is accepted by written service on the [P] or their solicitor
R358(1)
Option #2: 3. WHAT ARE THE CONSEQUENCES IF [P] ACEEPTS [D] OFFER]
- Galsbey v Elliot (1987): time starts ticking when they signed the lease not 4. FALIURE TO COMPLY WITH OFFER
when the lease was not carried out. a. [P] refuses to comply with the terms of the offer R 365
b. (a) Continue with the action as if the offer had not been
You can use Elliot: or Wardley one is not better than other accepted, or
S 38 LAA: Mistake or Fraud ask for extension c. (b) Apply to the court for judgment in terms of the offer
this option is best always take this one, always get a
judgment for the terms that were agreed to especially
Appeals
when there is a possibility someone might not comply if
R663: may ask for the reasons for an order party breaches the judgment it is a contempt of court
S748: notice of appeal must be filed within 28 days after date of decision 5. FAILURE TO ACCEPT AN OFFER TO SETTLE
a. PLAINTIFF MAKES THE OFFER
Due Process b. R 360: [P] made an offer, [D] didnt accept, [P] obtains a
judgment no less favourable - (P does the same or better
at trial) than the offer to settle, the court must order the [D]
- Due process is the legal requirement that the state must respect all of the legal
to pay the [P]s costs (including pre-offer costs) calculated
rights that are owed to a person. Typically, "Due process" means
on an indemnity basis.
o 1) Notice, generally written, but some courts have
determined, in rare circumstances, other types of notice c. DEFENDANT MAKES THE OFFER
d. R 361: Where [D] makes offer, not accepted by [P], and
suffice.[citation needed] Notice should provide sufficient
detail to fully inform the individual of the decision or activity the [P] obtains a judgment not more favourable P still
that will have an effect on his/her rights or property or wins but the win is no better than the offer made by D - to
person. the [P] than the offer to settle; the court must order:
o 2) right to grieve (that being the right to complain or to apportionment of costs
6. WHAT ARE THE CONSEQUENES IF [P] REJECTS THE [D]
disagree with the governmental actor/entity that has
a. R 361(3)(a): [D] to pay the [P]'s costs, calculated on the
decision making authority) and
standard basis, up to and including the day of service of
o 3) the right to appeal if not satisfied with the outcome of the
the offer to settle (pre-offer costs), and the general rule
grievance procedure
is the winner gets their costs covered by D court allowed
- Upholds the principle of natural justice which requires that a person have a
recover for P up to the and including the day D serviced
right to a fair hearing and the rule against bias
their offer in accordance with R 681
Sections that uphold due process
Date proceedings started by P
- R22: states that a claim must briefly state the nature of the claim and that a
Date of service of offer by D
statement of claim be attached to the claim ensures that the defendant
knows the allegations being brought against them, insures that D will have a Date of judgment
fair hearing as they know before hand the case against them and not be b. R 361(3)(b): [P] to pay the [D]s costs calculated on the
ambushed at trial standard basis, after the day of service of the offer to settle
- R23: plaintiff must advise D on statement of claim that if NITD is not filed within (post-offer costs). any costs incurred by D after the
28 days default judgment could be ordered against him/her date of their offer is paid by P
- R149(1)(c): each pleading must warn of matters of surprise (ie defence of THE COURT PROPOSES TO REFER YOUR CLIENTS CASE TO MEDIATION. YOUR
contributory negligence, cant bring it in last minute) no trial by ambush CLIENT OBJECTS, WHY WOULD MEDIATION BE INAPPROPRIATE? [5 MARKS]
1. R 319(2): A party may object to the reference, within 7 days of receiving the
PRE-MADE ANSWERS
notice, by an objection notice (stating the reasons for the objection).
A. UCPR AND PRACTICE DIRECTIONS Good reason for objecting to mediation would be:
1. IN WHAT WAYS DO THE UCPR AND PD DIRECTIONS ATTEMPT TO MODIFY EXTREME - The other party has bad faith or not disclosing relevant information,
ADVERSARIAL BEHAVIOUR? [5 MARKS] - power imbalance between the parties (i.e.. Domestic relationship), or
- lawyers have been negotiating for a while with no results (futile),
- if its a matter about quality (i.e. tiles) or is a complicated case it would be better
2. IN WHAT WAYS DO THE UCPR AND PD ATTEMPT TO ENCOURAGE PARTIES TO DISPOSE
suited for a CA as a CA can be anyone such as a tile expert.
IN A SPEEDY PROCEEDINGS [5 MARKS]
- Issue with intellectual capacity
1. Case management
- Cant negotiate because dont have information on legal rights
o A stipulated and fixed timetable for events
- It could be too emotional, your client may not be good in mediation
o Sanctions for non-compliance - R319(5) the court may require the parties to attend a hearing, at the
o Early listing of cases for hearing
conclusion of which, the court may make an order it considers appropriate
o Strict control of adjournments
MEDIATION SET OF QUESTIONS? [5 MARKS]
o Early exchange of documents
1. At the mediation, Party A says to Party B threat of violence
2. Pre-trial hearing and settlement conferences at which practice directions are a. What information can be disclosed
given
 i. The threat should be disclosed as it a. All negotiation occur without prejudice which protects the (post-offer costs). any costs incurred by D after the
been committed in bad faith and there communication for the purpose of negotiation date of their offer is paid by P
is significant imbalance of power b. [D] can make an offer to settle any time before the given - R 354(1) 7. ACCEPTANCE OF OFFER (FORMALISING SETTLEMENT AGREEMENTS)
ii. CPA 53(1): Evidence of anything 8. WHAT IS [P] REQUIRED TO DO IF [D] MAKES AN OFFER? a. One of the terms of the settlement may be that the terms shall be
done or said, or an admission made, at c. Since [D] is a party to proceedings s/he is entitled to offer settle R made an order of the court. Parties can obtain a judgment by
an ADR process about the dispute is 353(1), [D] can serve more than one offer to settle R355(2). consent. Proff likes this one!! Because you can get enforcement
d. [D] must ensure that the offer to settle must be in writing and must proceedings
admissible at the trial of the dispute or
contain a statement that is made under this part R355(3) The b. The action may be stayed, on terms scheduled to the order staying
in another civil proceeding before the
period acceptance must 14 days (unless specified) R355(1) and the proceedings, except as necessary for the purpose of carrying such
court or elsewhere only if all parties to
offer is accepted by written service on the [P] or their solicitor terms into effect. Parties given liberty to apply if necessary to carry
the dispute agree
b. In What circumstances R358(1) terms into effect.
i. s 54(2) disclosure justified when: 9. WHAT ARE THE CONSEQUENCES IF [P] ACEEPTS [D] OFFER] c. Parties enter into a contract in the terms agreed. No court orders
ii. (d) for an inquiry or proceeding a. FALIURE TO COMPLY WITH OFFER other than discontinuance. Courts jurisdiction at an end. If the terms
b. [P] refuses to comply with the terms of the offer R 365
relating to an offence occurring in the are not complied with, injured party must seek remedy under the new
c. (a) Continue with the action as if the offer had not been
course of the ADR process agreement. This is the worst one because your back to square
accepted, or
c. By Whom one if someone does not comply to terms, you need to start
d. (b) Apply to the court for judgment in terms of the offer
i. Mediator proceedings all over again
2. At mediation, parties reach an agreement that is under the table deal this option is best always take this one, always get a
judgment for the terms that were agreed to especially CASE APPRAISAL
mediator is aware B. GIVE YOUR OPINION AS HOW THE ADR SCHEME ESTABLISHED UNDER
a. What information can be disclosed when there is a possibility someone might not comply if
THE SUPREME COURT OF QUEENSLAND ACT 1991 (QLD) AND THE
b. CPA 53(1): Evidence of anything done or said, or an party breaches the judgment it is a contempt of court UNIFORM CIVIL PROCEDURE RULES 199 (QLD) MIGHT BE IMPROVED.
admission made, at an ADR process about the dispute is e. FAILURE TO ACCEPT AN OFFER TO SETTLE CONSIDER FROM CLIENTS AND LEGAL REPRESENTATIVES PERSPECTIVE
admissible at the trial of the dispute or in another civil f. PLAINTIFF MAKES THE OFFER CLIENTS
g. R 360: [P] made an offer, [D] didnt accept, [P] obtains a
proceeding before the court or elsewhere only if all parties 1. CASE APPRAISER DECISION
judgment no less favourable - (P does the same or better o There should be changes to ensure that parties consent or
to the dispute agree
i. In What circumstances at trial) than the offer to settle, the court must order the [D] opt to the decision
c. By Whom to pay the [P]s costs (including pre-offer costs) calculated o R 341: If election is not made within 28 days, the decision
i. Mediator on an indemnity basis. becomes binding: R 343(2), the parties are taken to have
d. CPA: S 54(1) An ADR convenor must not, without i.
consented to CAs decision being binding on them and the
reasonable excuse, disclose information coming to the ADR h. DEFENDANT MAKES THE OFFER
i. R 361: Where [D] makes offer, not accepted by [P], and decision then becomes final and binding. It can be
convenor's knowledge during an ADR process:
the [P] obtains a judgment not more favourable P still enforced, s 51 CPA
e. s 54(2) disclosure justified when: (e) for a proceeding
based on a fraud alleged to relate to or have occurred in wins but the win is no better than the offer made by D - to
the ADR process, the [P] than the offer to settle; the court must order: LEGAL REPRESENTATIVES
3. At the mediation, Party B says Party A I also took property and never apportionment of costs 1. CASE APPRAISER
be able to prove it 10. WHAT ARE THE CONSEQUENES IF [P] REJECTS THE [D] o NO REASON FOR DECISIONS
a. What information can be disclosed 1. R 361(3)(a): [D] to pay the [P]'s costs, calculated on the standard o CAs do not have to give reasons for their decisions. So you
b. CPA 53(1): Evidence of anything done or said, or an basis, up to and including the day of service of the offer to settle (pre- have to weight up all the facts and the law and decide if
admission made, at an ADR process about the dispute is offer costs), and the general rule is the winner gets their costs going to court would be beneficial for your client
admissible at the trial of the dispute or in another civil covered by D court allowed recover for P up to the and including
proceeding before the court or elsewhere only if all parties the day D serviced their offer in accordance with R 681
to the dispute agree Date proceedings started by P CASE APPRAISAL
c. In What circumstances Date of service of offer by D C. The court has referred your clients case to case appraisal over the clients
d. s 54(2) disclosure justified when: Date of judgment objective. What arguments can you put before the court to persuade it that case
(d) for an inquiry or proceeding relating appraisal is inappropriate? What procedural steps are involved?
1. OBJECTION TO CASE APPRAISER
to an offence occurring in the course of
2. R 361(3)(b): [P] to pay the [D]s costs calculated on the standard basis, a. R 319(1), the court may order the parties (by notice from the
the ADR process
4. Party A makes an offer however they are unable to reach an agreement after the day of service of the offer to settle (post-offer costs). any costs registrar) to an ADR process (mediation or case appraisal) to be
at the mediation incurred by D after the date of their offer is paid by P conducted by a specified mediator or case appraiser (the parties may
a. What information can be disclosed A. MEDIATION select and agree upon the third party
i. Field v Railway: says you cannot use 1. INFLATED CLAIMS IN MEDIATION [5 MARKS] b. R 319(2): A [P] may object to the reference, within 7 days of
this information during trial 1. CAN [D] GIVE EVIDENCE OF [P] ADMISSION THAT HIS CLAIM WAS receiving the notice, by an objection notice (stating the reasons for
ii. Williamson v Schmidt [1998]: A INFLATED? the objection).
participant cannot lead evidence of a. Without Prejudice rules (CL) 2. Reasons
i. Applies to protect communications between a. Certain that you will get a substantially better outcome by going to
anything said or done at mediation in
parties to a dispute made for the purpose of court, otherwise caution client to live with the CAs decision
later proceedings. But they are entitled
negotiating a settlement. b. The complexity of the issues involved within the case involves
to prove by admissible evidence the
ii. Full term is W/o prejudice save as to costs multiple reports, witnesses and defendants that is something that
existence of any factor or matter 2. ASSUME THAT THE COURT GIVES JUDGMENT FOR [P] LOWER THAN THE cannot be easily handled at case appraiser.
disclosed at mediation c. There is no relevant third party with expertise in that particular area to
OFFER
iii. AWA v Daniels: if Im talking to you in
a. Failure to Accept an Offer to Settle decide the dispute.
mediation anything that is said or done b. R 360: If plaintiff makes offer, defendant doesnt accept, plaintiff d. The CA is not suitable to proceed with the dispute - R 339
here is confidential what that means is obtains a judgment no less favourable - (P does the same or better at e. R 319 (4)(5): The court may require the parties to attend a hearing,
that if we dont settle today and the trial) than the offer to settle, the court must order the defendant to pay at the conclusion of which, the court may make an order it considers
matter goes on to trial you cant say at the plaintiffs costs (including pre-offer costs) calculated on an appropriate.
the mediation ___ said this or ____ did indemnity basis.
this c. (3)(a): the defendant to pay the plaintiff's costs, calculated on the
b. In What circumstances QCAT
standard basis, up to and including the day of service of the offer to
c. CPA: S 54(1) An ADR convenor must not, without Q: THE AMOUNT IS $7,000. MONEY HASNT BE PAID, CAN HE INITATE
settle (pre-offer costs), and the general rule is the winner gets
reasonable excuse, disclose information coming to the ADR PROCEEDINGS IN THE MAGISTRATES COURT AND QCAT PART [B]
their costs covered by D court allowed recover for P up to the and
convenor's knowledge during an ADR process 1. QCAT
including the day D serviced their offer in accordance with R 681 o The QCAT is economically a much more cheaper option to be
d. By Whom i. Date proceedings started by P
e. Mediator consider was established and Governed by the QCAT Act 2009
ii. Date of service of offer by D
f. R 332: if a mediation is unsuccessful, the dispute may go (QLD) prescribed amount of $25,000 defined by Sch. 3 of QCAT and
iii. Date of judgment
to trial or be heard in the ordinary way without an inference has original jurisdiction to hear and decide a minor civil dispute s11
being drawn against any party of the failure to settle at the o The dispute between [P] and [D] would be considered as a minor
mediation. A. SETTLEMENT dispute within sch 3 and fit within the amount of the Sch 4.
ASSUME FOR THE PURPOSES OF THIS PART THAT [P] HAS HEARD ABOUT MEDIATION 1. OFFER TO SETTLE [5 MARKS] o QCAT allows for the simplified procedures R 514 (1): simplified
AND AKS YOUR ADVICE ABOUT WHETHER MEDIATION WOULD BE APPROPRIATE, ADVICE 1. ADVISE THE [D] ON HOW HE CAN MAKE AN OFFER OF SETTLEMENT TO
procedures apply to minor claims (2)(b) file the agreement (used
[5 MARKS] [P]?
to keep lawyers out, keep discovery to a minimum)
1. How to arrange for mediation a. All negotiation occur without prejudice which protects the
o (3): However, subrule (2) does not apply to a claim for a debt or
a. Mediation is whether it is in the best interest of the parties communication for the purpose of negotiation
i. When its not really about the legal b. [D] can make an offer to settle any time before the given - R 354(1) liquidated demand S33: proceedings are commences by
interests, then it might be about the 2. WHAT IS [P] REQUIRED TO DO IF [D] MAKES AN OFFER? application
best interests of the parties e. Since [D] is a party to proceedings s/he is entitled to offer settle R o S43(1): all parties must represent themselves unless the interests of
ii. Used to preserve long-term 353(1), [D] can serve more than one offer to settle R355(2). justice require otherwise S43(2): may be represented by
relationships f. [D] must ensure that the offer to settle must be in writing and must someone else if:
b. Mediation can be arranged through a three ways that firstly contain a statement that is made under this part R355(3) The TRANSFER: s52: matter started in QCAT can be
include Consent (s42) where parties can refer a dispute period acceptance must 14 days (unless specified) R355(1) and the transferred to a court where QCAT doesnt have
upon filing a consent order. Court then makes a referral offer is accepted by written service on the [P] or their solicitor authority or more appropriately dealt with by the
order. Court order (CPA S43) court may order ADR R358(1) court, either by application of parties or on its
Referral on application (UCPR R319). The court may 3. WHAT ARE THE CONSEQUENCES IF [P] ACEEPTS [D] OFFER] own motion (if too complicated or plaintiff seeking
order the parties (by notice from the registrar) to an ADR 4. FALIURE TO COMPLY WITH OFFER a remedy that cannot grant)
process (mediation of case appraisal) to be conducted by a 5. [P] refuses to comply with the terms of the offer R 365 COSTS/ENFORCEMENT
a. (a) Continue with the action as if the offer had not been s100: each party usually bears own
specified mediator or case appraiser (the parties may accepted, or costs s129-132: decisions of
select and agree upon the third party). b. (b) Apply to the court for judgment in terms of the offer
2. The process for mediation QCAT can be enforced as if they were
this option is best always take this one, always get a
a. R324: A mediator must start a mediation as soon as made by the court, but enforcement
judgment for the terms that were agreed to especially
possible after the mediators appointment and try to finish when there is a possibility someone might not comply if proceedings are taken through
the mediation within 28 days after the appointment party breaches the judgment it is a contempt of court Magistrate Court
b. R325: the parties must act reasonably and genuinely in the c. FAILURE TO ACCEPT AN OFFER TO SETTLE 2. Magistrates Court
mediation and help the mediator to start and finish the d. PLAINTIFF MAKES THE OFFER 3. TERRITORIAL JURISDICTION
i. R 360: [P] made an offer, [D] didnt o R 35: proceedings must be commenced in the district
mediation within the time estimated or set in the referring
accept, [P] obtains a judgment no less o (1) A person must start a proceeding before a court in 1 of
order
c. R 326: Mediator may, gather info about facts and nature of favourable - (P does the same or the following districts
better at trial) than the offer to settle, o (c) if the parties to a proceeding to be started in a
dispute, decide whether parties can be represented and by
whom and see the parties together or separate with/without the court must order the [D] to pay the Magistrates Court or the District Court consent in writing
their reps. [P]s costs (including pre-offer costs) and file the consent with the registrar
d. R 328: Mediator can seek legal advice from independent calculated on an indemnity basis. (i) for a Magistrates Courtany
TPs with leave of court or parties agreement to pay extra e. DEFENDANT MAKES THE OFFER Magistrates Courts district; or
i. R 361: Where [D] makes offer, not (ii) for the District Courtany district of
costs if costs are incurred.
3. What happens at the end of mediation if an agreement is reached accepted by [P], and the [P] obtains a the District Court;
judgment not more favourable P o R 22(2)(c): claims filed in DC or MC must show court has
between (P) and (D)
a. CPA: S48: if agreement reached, must be written down still wins but the win is no better than jurisdiction to decide claim: both territorial and monetary.
and signed by each party/mediator. the offer made by D - to the [P] than 4. COMMENCING PROCEEDINGS
Originating proceedings R3: the set of rules in the UCPR apply to
b. CPA: S50: Party may apply to QSC for order giving effect the offer to settle; the court must
all three courts
to agreement reached. order: apportionment of costs
4. What happens if the mediation takes place and no agreement is R7: the court can set time limitations but this does not effect the time
6. WHAT ARE THE CONSEQUENES IF [P] REJECTS THE [D]
reached between (P) and (D) a. R 361(3)(a): [D] to pay the [P]'s costs, calculated on the limitations placed in the LAA
R8: (1) a proceeding starts when the originating process is issued
standard basis, up to and including the day of service of
by the court (2): the rules provide for the following types of
the offer to settle (pre-offer costs), and the general rule
a.
R 332: if a mediation is unsuccessful, the dispute may go originating proceedings claim application
is the winner gets their costs covered by D court allowed
to trial or be heard in the ordinary way without an inference Claim [Form 2] more popular + statement of
recover for P up to the and including the day D serviced
being drawn against any party of the failure to settle at the claim [Form 16] A claim is about disputed
their offer in accordance with R 681
mediation. facts, now law
Date proceedings started by P Give the defendant notice of the nature
b. Field v Railway: says you cannot use this information
Date of service of offer by D
during trial of the claim, and the CoA relied upon.
Date of judgment Show a connection between the plaintiff
IF ONE OR MORE OF THE PARTIES WANTS TO MAKE AN OFFER IN MEDIATION [5
MARKS] and the defendant.
b. R 361(3)(b): [P] to pay the [D]s costs calculated on the
7. ADVISE THE [D] ON HOW HE CAN MAKE AN OFFER OF SETTLEMENT TO Show the damage which the plaintiff
standard basis, after the day of service of the offer to settle
[P]? alleges/or the remedy or relief sought.
o CHANGE OF VENUE
 s53: courts can transfer matters to QCAT Difficulties encountered/reasons why not yet a. Kelly, Jim and Kay
o INTEREST served; or i. R209: what it applies to (a) proceedings started by claim
(R 283): where the claim can be quantified by other good reason. ii. R 210 disclosure is the delivery or production of documents in
precision. This is an administrative task; judicial 4. R 24(4): in the first five years the registrar can actually renew it, but, after five years you accordance with this part.
consideration is not necessary. iii. R211: states what the duty is - parties have to exchange doc in their
will need to a judge to grant you leave of the court
(6) claim an agreed rate where one is agreed. possessing and control
JOINDER
(The parties may have agreed that interest is iv. R 214(2)(e): within 28 days of close of pleadings is the time limit you
Q: THE D BELIVES THAT [3RD] IS RESPONSIBLE HOW TO JOIN THEM AS A
payable at an agreed rate - usual in the case of have for discovery
PARTY?
loans). v. What type of things need to be disclosed
1. [D] would have to issue a third party notice which assert that [3 rd] should also
o COSTS 1. Medical reports, expert reports, documents,
be brought into the action.
R 283(2)(b): the plaintiff may file a request for photographs, exhibits that are directly relevant to
2. A TPN enables [D] to join in the action any person against whom the D claims
judgment for an amount not more than the the issue
relief related to the Ps claim
vi. Medical Reports
amount claimed, together with the following costs 3. A D may incur a liability to the P because of the default or misfeasance of
1. R 212(2): Expert reports are not privileged from
another person, who the P has not sued.
disclosure
(i) costs for issuing the claim; 4. Use TPN where defendant claims against the TP a contribution or indemnity,
2. They reports should be provided to the
(ii) costs for obtaining judgment; relief or remedy connected with original action, or necessary to join TP to
(iii) any other feed and payments, to the extent defendants
answer any question relating to original subject matter (see rule 192) b. Victims
they have been reasonably uncured and paid 5. [D] pursuant to R192 to join [3rd] as they are (a) not already a party to the 2. Medical reports, expert reports, documents, photographs, exhibits that
Q: [P] HAS AN ISSUE $10,000 ADVICE [P] OF RELEVANT PROCEDURAL MATTERS? proceeding a contribution or indemnity are directly relevant to the issue
[5 MARKS] 6. 3rd party should enter an appearance (NITD/defence) or may suffer default a. R 212(2): Expert reports are not privileged from disclosure
1. MIINOR DISPUTE judgment R197 b. R221: car accident quotes from drivers needs to be
a. s11: the tribunal has original jurisdiction to hear and decide o The court is going to be hesitant to give a default judgment disclosed if other party asks for it
a minor civil dispute until the main action between the plaintiff and defendant is 3. Personal Injury & Fatal Injury Cases
b. Sch 3: Minor Civil Dispute defined to include: resolved, until then they are not going to put a figure on it a. R 547: Plaintiff is required to serve a statement of loss and
i. Consumer trade disputes (K for supply and say this is how much the 3rd party needs to contribute. damage (must include names and addresses of ALL
of goods) 7. If original plaintiff is successful against original defendant, a successful third hospitals, doctors and experts who have examined the pl.
c. Sch 4: claim for amount including interest of not more than
party action allows the defendant to claim an indemnity or contribution from the or given reports).
$25,000 doesnt include some claims within QCAT
TP b. R 550: Def is under a similar obligation, to deliver a
jurisdiction refer to R 514. 8. [A third party] may counterclaim against the defendant R 200. statement of expert and economic evidence.
2. APPLY 9. Remember! If there is a counterclaim, a plaintiff in the original action becomes
a. R 514 (1): simplified procedures apply to minor claims
a defendant may in turn issue a TPN against another.
b. (2): parties to a claim that is not minor (more than $25K)
DEFAULT JUDGMENT SET ASIDE 6. What steps can be parties take to ensure access to these documents?
may (a) agree in writing that simplified procedures apply o R214 Disclosure by delivery of list of documents and
Q: BEEN OUT OF TIME FOR QUITE A WHILE APPLY FOR A DEFAULT JUDGEMENT
and (b) file the agreement (used to keep lawyers out, keep copies
SET ASIDE
discovery to a minimum) o S227: notice that you want the parties to bring
1. [D] would have to apply for the interlocutory application (FORM 9) to set aside
i. S33: proceedings are commences by
to set aside the judgment. original or best documents to trial
application o R 223(1): court may order disclosure, affected by
o An Affidavit must be drafted that includes R290 Give a
ii. S43(1): all parties must represent
satisfactory explanation for the failure to appear delivering copies or producing for inspection if parties
themselves unless the interests of
Establish no unreasonable delay in making the application dont oblige/play by the rules
justice require otherwise 7. What documents can be withheld and why?
3. TRANSFER since aware of default judgment
o [D] will need to demonstrate that you have a prima facie The Legal Advice
a. s52: matter started in QCAT can be transferred to a court
o R 212 (1) The duty of disclosure does not apply to the
where QCAT doesnt have authority or more appropriately defence - Cook v D A Manufacturing Co P/L & Anor:
Courts discretion is wide and unfettered following documents:
dealt with by the court, either by application of parties or on
2. If [D] is successful in having jment set aside, s/he will be ordered to o (a) A document in relation to which there is a valid claim to
its own motion (if too complicated or plaintiff seeking a
o File and serve a defence within a stipulated time file privilege from disclosure; (LPP) main focus
remedy that cannot grant) o Legal professional privilege
4. COSTS NITD + Defence court decides time limit
o D agrees to pay the Ps costs involved on two things Limb 1: Advice
a. s100: each party usually bears own costs
(1) Costs with respect to the default Limb 2: Ligation
b. s129-132: decisions of QCAT can be enforced as if they
o Privilege Against Self-Incrimination
were made by the court, but enforcement proceedings are judgment
dont have to disclose a document
taken through Magistrate Court (2) Costs with respect to the application
to set aside the default judgment which is self-incriminating
JURISDICTION What adverse cost implications might attach to the parties actions?
Q: [P] wants $153,000, money not repaid. You are consented by [P] regarding claiming Defendant usually ordered to pay the o Consequences of non-disclosure
money and wants interest? plaintiff's costs on obtaining the default Personal Injuries & Fatal Injury Cases
1. JURISDICTION judgment and plaintiffs costs on the All expert reports must be disclosed, even if you
a. R 35: proceedings must be commenced in the district (1) A application to set aside. do not intend to rely on them at trial because
person must start a proceeding before a court in 1 of the following o R 547: Plaintiff is required to serve a statement of loss and
districts (a) the district in which the defendant or respondent lives damage (must include names and addresses of ALL
INTERIM INJUNCTIONS
or carries on business Q: Q: IF THE [P] HAS ISSUED PROCEEDINGS] BUT NEEDS PREVENT SOMETHING hospitals, doctors and experts who have examined the pl.
i. (c) if the parties to a proceeding to be started in a or given reports).
IMMEDIATELY, RECOVERING OF MONEY AND PREVENT DISPOSING OF MONEY
Magistrates Court or the District Court consent in o R 550: Def is under a similar obligation, to deliver a
PENDING THE OUTCOME PART 1 LAWS 11-319
writing and file the consent with the registrar statement of expert and economic evidence
1. [P] HAS ISSUED PROCEEDINGS HOWEVER NEEDS SOMETHING DONE
1. (i) for a Magistrates Court Consequences of non-disclosure
IMMEDIATELY
any Magistrates Courts o R 225(1): party who does not disclose
2. [A] would make an application for interim relief using an interlocutory
district; or (a) must not tender or adduce evidence
application (FORM 9) to bring an action for an injunction
2. (ii) for the District Courtany as to contents w/o leave if you have
The court has the power order an injunction to hold the status quo until final
district of the District Court; given evidence through an affidavit that
ii. R 22(2)(c): claims filed in DC or MC must show judgment is given [CONSIDERING THE ACTIONS OF THE D].
The scope of an injunction can be quite broad including property and activities it is not in your possession or control
court has jurisdiction to decide claim: both you cannot then turn up in court and
[CONSIDERING THE ACTIONS OF THE D].
territorial and monetary. say here is the document.
2. DISTRICT COURT [CONSIDERING THE ACTIONS OF THE D] court could possibly grant a
(b) is liable to contempt for non-
a. S 68: have original jurisdiction, limited to claims (for personal positive or negative, interim or permanent injunction
3. [A] must prepare an affidavit (FORM 46) disclosure
actions, proceedings concerning land and equitable rights or relief) (c) may suffer costs penalties
o The [A] must make out a prima facie case for relief if the
that are more than $150,000 but less than $750,000 o (2) Other party may apply for
b. S73: Jurisdiction if plaintiff abandons excess have the matter evidence on which the injunction is granted is accepted at
(a) order staying/dismissing
heard in the Magistrates Court trial. The balance of convenience between parties favours
proceedings
c. S 26(2): DC can transfer matter pending in DC to MC if MC has an injunction - Beecham Group Ltd v Bristol (b) judgment or other order
jurisdiction to hear it. Laboratories Ltd (1968) H Ct (c) order for disclosure
3. INTEREST 4. Balance of convenience
a. (R 283): where the claim can be quantified by precision. This is an The court will consider the damage done to [D] by granting the injunction, if
administrative task; judicial consideration is not necessary. Final mandatory, as against the damage to the plaintiff if it is withheld. DISCLOSURE
default judgment may be entered by registrar Any irreversible consequences of granting the injunction must be considered. Q: IS THE [D] OBLIGED TO DISCLOSE THIS DOCUMENT? WHAT IF THE
i. (6) claim an agreed rate where one is agreed. The stronger the serious question to be tried, the less emphasis need be DEFENDANT DOESNT DISCLOSE THE DOCUMENT TO [P]?
(The parties may have agreed that interest is placed on the balance of convenience favouring the applicant over the [R]. 1. IS THE [D] OBLIGED TO DISCLOSE THIS DOCUMENT? (MUST GIVE ALL
payable at an agreed rate - usual in the case of The court normally refuses to grant an interlocutory or interim injunction unless ELEMENTS)
loans). the applicant gives an undertaking as to damages (if loses at trial pay for any o The [D] has duty to disclose to the [P/D] R 211(1)
ii. (7) accept a rate not higher than that set in the damage suffered by D) o (a) The current documents are in possession or under
PD (10%)(obtainable from the Registrar); 5. Prevention of money being removed control of the [P/D]
iii. CPA s58(3): the court may order that there be [A] would make an application for interim relief using an interlocutory o (b) The [DOCUMENT] directly relevant to allegation in
included in the amount for which judgment is application (FORM 9) to bring an action for an Manera order S260A issue (an allegation remains in issue until it is admitted,
given interest at the rate the court considers The court [CONSIDERING THE ACTIONS OF THE D] may make an order for withdrawn, struck out or otherwise disposed of).
appropriate for all or part of the amount and for all the purpose of of preventing the frustration or inhibition of the court's process o The [D] [DOCUMENT] doesnt fall within the exceptions of
or part of the period between the date when the by effecting prospective judgment S260A(1) R212 involving (1)(a) involving valid claim to privilege or (b)
cause of action arose and the date of judgment. A freezing order may be an order restraining a respondent from removing any only to credit or (c) additional copy.
if you dont ask for it from the date CoA arose assets located in or outside Australia or from disposing of, dealing with, or 2. WHAT IF THE DEFENDANT DOESNT DISCLOSE THE DOCUMENT TO [P]?
diminishing the value of, those assets s260A(2) o IF A [P/D] doesnt disclose [DOCUMENT] R 225(1)
they will give it from the date proceedings were
Q: [P] WANTS TO KNOW IF HE CAN GET AN INTERIM INJUNCTION TO STOP THE (a) must not tender or adduce evidence
filed
1. Practice Direction 7 of 2013: NEWS STORY? as to contents w/o leave if you have
interest rate = 10% 1. [P] HAS ISSUED PROCEEDINGS HOWEVER NEEDS SOMETHING DONE given evidence through an affidavit that
b. Paper Work IMMEDIATELY it is not in your possession or control
i. [Form 25]: Request for Default Judgment o [A] would make an application for interim relief using an interlocutory application (FORM you cannot then turn up in court and
only occasion where its an interlock app but not 9) to bring an action for an injunction say here is the document.
using form 9 The court has the power order an injunction to hold the status quo (b) is liable to contempt for non-
1. R 282: Affidavit of Service until final judgment is given [CONSIDERING THE ACTIONS OF THE disclosure
must prove service was D]. (c) may suffer costs penalties
made The scope of an injunction can be quite broad including property and o (2) Other party may apply for
ii. [Form 26]: Draft Judgment you have to draft activities [CONSIDERING THE ACTIONS OF THE D]. (a) order staying/dismissing
a judgment that you are seeking [CONSIDERING THE ACTIONS OF THE D] court could possibly proceedings
4. COSTS grant a positive or negative, interim or permanent injunction (b) judgment or other order
a. R 283(2)(b): the plaintiff may file a request for judgment for an o [A] must prepare an affidavit (FORM 46) (c) order for disclosure
amount not more than the amount claimed, together with the The [A] must make out a prima facie case for relief if the evidence on
following costs which the injunction is granted is accepted at trial. The balance of PROCEDURE
i. (i) costs for issuing the claim; convenience between parties favours an injunction - Beecham Q: THE D BELIVES THAT [3RD] IS RESPONSIBLE HOW TO JOIN THEM AS A PARTY?
ii. (ii) costs for obtaining judgment; Group Ltd v Bristol Laboratories Ltd (1968) H Ct 1. [D] would have to issue a third party notice which assert that [3 rd] should also
iii. (iii) any other feed and payments, to the extent o Balance of convenience be brought into the action.
they have been reasonably uncured and paid The court will consider the damage done to [D] by granting the 2. A TPN enables [D] to join in the action any person against whom the D claims
Q: Issue involving PI, proceedings have been instituted however no service close to 3 injunction, if mandatory, as against the damage to the plaintiff if it is relief related to the Ps claim
year marks? [5 MARKS] withheld. 3. A D may incur a liability to the P because of the default or misfeasance of
1. R 24: If a claim (or other originating process) is not served within 12 months of the date Any irreversible consequences of granting the injunction must be another person, who the P has not sued.
of filing in the registry, it is said to be stale. considered. 4. Use TPN where defendant claims against the TP a contribution or indemnity,
2. R 24(2): If service is not affected within 12 months, and reasonable efforts to serve the The stronger the serious question to be tried, the less emphasis need relief or remedy connected with original action, or necessary to join TP to
claim have been made, or there is another good reason, the registrar may review the be placed on the balance of convenience favouring the applicant over answer any question relating to original subject matter (see rule 192)
claim for further periods of not more than 1 years the [R]. 5. [D] pursuant to R192 to join [3 rd] as they are (a) not already a party to the
3. Apply to the court to renew it (Form 9) interlocutory application supported by an The court normally refuses to grant an interlocutory or interim proceeding a contribution or indemnity
affidavit injunction unless the applicant gives an undertaking as to damages (if 6. 3rd party should enter an appearance (NITD/defence) or may suffer default
o The application is made ex parte (absence of other party) supported loses at trial pay for any damage suffered by D) judgment R197
by affidavit: o The court is going to be hesitant to give a default judgment
o Need to show: until the main action between the plaintiff and defendant is
DISCLOSURE resolved, until then they are not going to put a figure on it
That efforts have been made to serve the Q: THE DISCLOSURE OF DOCUMENTS
defendant/s and say this is how much the 3rd party needs to contribute.
1. What documents should be disclosed by whom, to whom?
 7. If original plaintiff is successful against original defendant, a successful third real prospects of successfully defending all or part of the (P) claim and (b) that there is no need for
party action allows the defendant to claim an indemnity or contribution from the a trial of the claim or the part of the claim. Costs would be sought.
TP DEFENDANT
8. [A third party] may counterclaim against the defendant R 200. (P) has initiated proceedings against (D). (D) Filed a NITD however there were no substantial
9. Remember! If there is a counterclaim, a plaintiff in the original action becomes grounds that were addressed. (P) using an interlocutory application (FORM 9) can apply for
a defendant may in turn issue a TPN against another. summary judgement R293(1). The court must be satisfied under R293(2)(a) that the (DEF) has
AMENDING DOCUMENTS AFTER PLEADINGS no real prospects of successfully defending all or part of the (P) claim and (b) that there is no need
Q: THE D BELIVES THAT [3RD] IS RESPONSIBLE HOW TO JOIN THEM AS A PARTY?
for a trial of the claim or the part of the claim. Costs would be sought
1. R 376(4): although limitation period has expired, the court may give leave to
make an amendment to include a new cause of action if requirements of rule Q: A PARTY MIGHT RELY UPON AN ANSHUN ESTOPPEL?
are met. (P) has rely upon anshun estoppel against (D) as the matter has already been decided it should
2. CPA - s16(2) The court may order an amendment to be made, or grant leave not be re-litigated - Henderson v Henderson (1843) 67 ER 313. The matters that brining brought
to a party to make an amendment, even though (D) are the same matters that were previously decided and there are so special circumstances. The
(a) the amendment will include or substitute a cause of action matters that (D) is relying upon should have been brought forth in the original proceeding since
or add a new party; or b) the cause of action included or they arise from the same event and courts look to enforce the principle of finality - Port of
substituted arose after the proceeding was started; or c) a
Melbourne Authority v Anshun Pty Ltd (No 2) (1981). The exceptions established in Gibbs v Kinna
relevant period of limitation, current when the proceeding
started has ended. (3) discretion lies with court. (1999) 2 VR 19 are not relevant to (D) claim and similar finding of Rippon v Chilcotin Pty Ltd (2001)
NEGLIGENCE IN CONTRACTS 53 NSWLR is analogous to case at hand.
Q: Q: ISSUE INVOLVING LAWYER DRAFTING CONTRACTS FROM THE PAST, CAN
THE [P] HEAR THESE PROCEEDINGS AT THE SAME TIME AS BETWEEN THE [D]
AND [P] PART 5 (LAWS 11-319)
1. Cause of Action:
a. This is a latent defect in documents; the document has
been negligently drafted
2. Time Running
a. Originally it was established that involving latent detects in
contracts drafted by the lawyers that damages are suffered
when the agreement between parties was made Deputy
Comissioner of Taxation v Zimmerely (1998) and that
is when the limit of action
b. However it has been interpreted in the case of Galsbey v
Elliot (1987) that time begins to run when time begins at
the signing of the lease
3. Option 1
a. Wardley Australia Ltd v Western
b. When the agreement involves future date when the
disadvantageous character or effect of the agreement
[can] be ascertained and its impact upon events as they
unfold becomes known or apparent - Wardley Australia
Ltd v Western
c. The time starts to run when the loss is suffered that is
known as a contingency loss. This occurs in situations
where species of property involved, client executes the
document, and if you are going to get less than intended.
d. Court can only if you have suffered a loss, then you have a
cause of action when the contingency is suffered and the
actual loss has occurred.
i. This has to do with species of property
(wardly) as opposed to personal injury
4. Option 2
a. Galsbey v Elliot (1987)
i. Time starts ticking when they signed
the lease not when the lease was not
carried out.
5. Conclusion
a. You can use Elliot: or Wardley one is not better than
other
b. S 38 LAA: Mistake or Fraud ask for extension
6. Adding the party to proceedings
a. JOINDER
i. Rule 65(2)
ii. [P] s/he is entitled to sue all parties
potentially liable as there is a
common question of law or fact -
Smyth v McLeod [2004] QSC 69
iii. Rule 66: Identical Interest in relief
unnecessary
b. IF PROCEEDINGS HAVE ALREADY STARTED
i. [P] would make an interlocutory
application (Form 9) for a application to
join party
ii. Rule 69: the Court has power to add,
substitute or remove parties to a
proceeding
DRAFTING QUESTIONS
Q: A STRONG CASE FOR RESISTING AN APPLICATION TO AMEND PLEADINGS
BROUGHT BY YOUR OPPONENT (APPLICATION TO AMEND WAS BROUGHT WAS
OUT OF TIME) [5 MARKS]
Sin City Nightclub Pty Ltd(SC) is resisting the Bond University Student
Association(BUSA) application to amend its pleading to add additional defects
will not be allowed as the BUSA has delay in requesting in the amending as
the application was brought out of time which has prevent SC from bring a
viable and realistic counter-claim.
The amendment to pleadings would result in an injustice.
The reasons for opposing the application is on the basis that
o We would suffer a degree of injustice from the BUSA delay
to file the application which would in result in prejudice
because of an inability to file a potentially exonerating
counter-claim to the information in the amendment. There
is an ulterior motive to the amendments Sails Case and
changes would alter the case - Queensland Jail Holdings
o The amendment to the claim and the degree of
particularisation of the issues considering the level of
independent evaluation to bring a counter-claim as a result
of the plaintiff delay has caused prejudice. The court should
consider on the facts, the counter-claim would be a viable
one, with the loss of the ability to bring a claim causing a
prejudice that is obvious and significant the court should
take this into account - Aon Risk
Q: DRAFT A FACT SCENARIO THAT ILLUSTRATES THE DIFFERNCE FOR A
COUNTER CLAIM?
Kim and Kourtney were injured when the cars they were driving collided. Kim initiated proceedings
against Kourtney alleging she was negligent and caused the crash. Kourtney has footage of Kim
from a speeding camera that shows her on the phone before the cars collided. Kourtney responds
with a counter-claim (R 177) (FORM 18) seeking damages for personal injuries and property
damages. Kourtney makes a counter claim (R 178(1)(b)(ii) to Khloe that suddenly decided to break
ahead of her, she ensures that it is in the approved form (FORM 16)( RULE 179). It is within the
Judges discretion whether or not decides to strike out the counter claim if inconvenient, or order it
heard separately
Q: DRAFT A FACT SCENARIO TO ILLUSTRATE A THIRD PARTY NOTICE?
(P), (D) were injured when they were driving collided. (P) initiated proceedings against (D) alleging
she was negligent and caused the crash. (D) issues a third party notice (R192(b)(i) to (3PTY) was
driving ahead of her and R192(b)(ii) sudden decided to break and resulted in the crash. (D) would
be required to enter an appearance either involving a NITD, defence or may suffer a default
judgement R197. The court is going to be hesitant to give a default judgment until the main action
between the plaintiff and defendant is resolved, until then they are not going to put a figure on it
and say this is how much the 3rd party needs to contribute. It is possible for Khloe to issue a
counter against (D) - R 200
Q: EXTENSION OF TIME
(APP) was significant injured as a result of (RES) being caused by the forklift. Due to the severity
of the injuries even the injury occurred on 2012 there appears 31 LAA. It appears that it cannot
be materially assessed the amount of the damages 31(2)(a) as the (PLAIN) is still undergoing
surgeries. An extension of time of is required under 31(2)(b) as the applicant needs to find out more
material facts after the expiration which will result in additional 12 months Regional Health
Authority v Taylor (1996)
Q: SUMMARY JUDGEMENT
PLAINTIFF
(P) has initiated proceedings against (D). (D) Filed a NITD however there were no substantial
grounds that were addressed. (P) using an interlocutory application (FORM 9) can apply for
summary judgement R292(1). The court must be satisfied under R292(2)(a) that the (D) has no