THEORY QUESTIONS CIV PRO Step [4] Disputed issues are prepared for trial (Directions hearings and
ared for trial (Directions hearings and pre-trial 3. Other reasons include excessive delays & costs, inefficient openness &
WHAT IS CIVIL PROCEDURE?
Civil Procedure can be broken into two parts. First, it is procedural law; that is
law, which governs the conduct the conduct of proceedings before a court,
tribunal or quasi-judicial body. It is necessary to distinguish between the mode of
proceedings (which is procedural law) from the law which is being enforced
(which is substantive law). The aspect is that it involves civil law as opposed to
criminal law. Criminal Law is brought by the state to punish offenders & protect
the public. Cases are usually prosecuted by police or Crown prosecutor
(representing the State) against the alleged perpetrator/s of an offence or crime
(the accused or defendant) and guilt must be proved BRP. Civil Matters however,
are those matters brought by persons wronged to obtain remedies for
themselves. The person wronged (the plaintiff) may bring an action seeking a
range of remedies including an award of monetary damages against the alleged
wrongdoer (the defendant). The action may be based in any one or more of a
number of branches of civil law such as contract law, the law of torts, property law
or equity and the plaintiff must prove its case against the defendant on the
balance of probabilities.
What are the objectives of civil procedure?
The Civil Justice system serves important private & public interests. It provides a
mechanism through which private rights may be vindicated & promotes the
orderly functioning of society in accordance with the rule of law. The rules of civil
procedure provide the mechanisms through which civil justice may be delivered &
they must operate effectively to that end. The rules of procedure serve several
purposes, not all of them reconcilable. Some of the more obvious goals include:
- The effective enforcement of orders or judgments;
- Speedy & final disposition of disputes or charges;
- Accuracy of fact-finding
- The best choice of court, in terms of jurisdiction, cost, speed, effectiveness
& ability
- Cost-effective procedures for the vindication of rights 7 the enforcement of
obligations
- The provision to each person affected of due notice of a claim or charge,
and of an opportunity to respond.
- The protection of basic rights or values, even at the expense of accurate
fact-finding
- The efficient use of judges time at trial by use of procedures designed to
reduce to a minimum the element of surprise at trial, & to streamline the
articulation & presentation to the court of only those issues genuinely in
contest
- The provision of assistance to litigants in the gathering of evidence. One of
the hallmarks of the adversarial system is the fact that the judge has no
responsibility for gathering facts & interviewing witnesses & minimal control
over the selection of issues to be fought. The trade off is the provision to the
parties of such devices such as discovery & subpoenas
- The provision of effective disincentives to the bringing of unfounded or
vexatious claims.
Basic Structure of Civ Pro
Step [1] Civil proceedings are commenced by one party (the plaintiff) issuing a
formal claim against the other (the defendant). There are 2 types of originating
processes Claim (F2), statement of claim (F16) OR Application (F5), affidavits
(F46).
Step [2] Filing Issuing by Court Service on defendant/s
Step [3] Defendant Responds (if not Plaintiff can ask for a default judgment). Def
can also respond with a counterclaim / third party notice
conferences) excessive formalism.
Step [5] If case does not settle, goes for trial Indeed, the general trends in reforms therefore aimed to eliminate delays, to
What are the sources of civil procedural law? keep the costs of proceedings proportionate to the subject matter of disputes,
There are 3 tiers of civil procedural law. to ensure cost effective case preparation, to encourage appropriate and timely
1 st tier: Legislation establishing the relevant Court settlement of disputes, to divert matters to more suitable dispute resolution
Supreme Court of Queensland Act 1991 (QLD) processes (eg mediation) as opposed to court, to ensure efficient use of judicial
The Judiciary Act 1903 (Cth) & administrative resources and to facilitate, just, efficient, determination of the
Federal Court of Australia Act 1976 (Cth) real issues in dispute. These trends are reflected in the objects clause of the
Family Court Act 1975 (Cth) UCPR SECT 5 (Below)
Federal Magistrates Act 1999 (Cth) The specific measures which embody these changes relate mainly to
- Establishment of greater uniformity in the Rules of Court, with a single test
nd
2 tier: Delegated legislation (Rules of Court) of rules applicable to the Supreme, District & Magistrates Court, unless the
Uniform Civil Procedure Rules 1999 (QLD) rules otherwise expressly provide UCPR rule 3
- Duties to advise / consider ADR
High Court Rules 2004 (Cth)
- Undertaking by parties & lawyers to proceed in an expeditious way
Federal Court Rules 1979 (Cth)
- Costs orders against practitioners
Etc etc - Case management schemes
- Institutionalization of ADR processes
rd
3 tier: Practice Notes and directions made by the courts - Streamlining the process of collecting and evaluating evidence
Superior courts have power to regulate their own procedure - Restraining repetition of hopeless litigation/wider powers re vexatious
What are the features of the Civil Common law system? litigants
Characteristics of Common Law Justice System - Retention of advocates immunity (to discourage re-litigation)
Legal principle is derived from judgments (& legislation) - Increased strategic importance of offers of settlement
Proceedings are adversarial conducted as a contest between opposing DISCUSSED IN MORE DETAIL
parties SECT 5 Philosophyoverriding obligations of parties and court (UCPR)
Proceedings are controlled by the parties to the dispute they decide the (1) The purpose of these rules is to facilitate the just and expeditious resolution
issues and the evidence to put before the court of the real issues in civil proceedings at a minimum of expense.
The truth is tested through cross-examination (2) Accordingly, these rules are to be applied by the courts with the objective of
In the past, parties controlled the flow of proceedings; they determined if avoiding undue delay, expense and technicality and facilitating the
and when a matter was listed for hearing. purpose of these rules.
o The trial was a distinct & a separate state in the litigation process (pre- (3) In a proceeding in a court, a party impliedly undertakes to the court and to
trial procedures quite separate). the other parties to proceed in an expeditious way.
o The judge was an impassive observer. (4) The court may impose appropriate sanctions if a party does not comply with
Contrast with Inquisitorial Model these rules or an order of the court.
Law found in authoritative statements or codes of basic legal principles Example The court may dismiss a proceeding or impose a sanction as to
issued by the state costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as
Legal proceedings are a continuous series of meetings, hearings, written required by these rules or an order of the court.
communications and submissions. COsts order under r 5 - general
There is greater reliance on documents as a basis for proof of the truth. Effect of SECT 5 UCPR
Judges play a more proactive role actively questioning the parties and -A party undertakes to proceed in an expeditious way
witnesses. -Court has power to impose a costs order r5(4) (under sect 5 = fine, a penalty for
not doing what you promised to do)
Why did the system need to be reformed?
Concerns about the functioning of the civil justice system has persisted in Unreas instituting proceedings ie no consideration to prospects of
success
Australia for many years. This perception led to a serious of enquiries across
Australian jurisdictions, which revealed that the system needed to be reforms. Not accepting reas offers to settle
Using court process for ulterior purpose
The reasons for this are:
1. the traditional adversarial system, which was applicable in Australia in civil Changing Roles
litigation before case management. This system involved the Court Judges more interventionist (with immunity).
playing a passive role and where Parties had responsibility for all pre-trial Practitioners need to become highly skilled risk assessors (immunity in some
preparation and even at trial the Courts role was still fairly passive, jurisdictions).
thereby having an over dependence on party control & party prosecution. Adversary system there is less party control but arguably reforms ensure due
2. An absence of judicial responsibility for the effective use of resources and process and natural justice.
instead an over dependence on an all-embracing trial. Students
Negotiation; Mediation; Interviewing; Selection of cases suitable for ADR; Risk
analysis and assessment; The giving of early advices on evidence; The giving of
advice on prospects of success.
ADVOCATES IMMUNITY PROBLEM Q BAD BARRISTER
Barristers & solicitors advocates are immune against actions for negligence
arising out of their presentation in court. (Recognized in by HC in Giannarelli v
Wraith )
Rationale: policy-basedto discourage litigation against lawyers by unsuccessful
& unhappy litigants DOrta-Ekenaike
CF: Barrister owes the client (not the solicitor) a duty to exercise reasonable care
& skill in providing out of court professional services such as giving advice &
drafting documents.
Other jurisdictions: immunity has been abolished in England (Arthur JS Hall ) &
New Zealand (Lai v Chamberlains )
VEXATIOUS & HOPELESS LITIGATION PROBLEM Q GUY KEEPS
LITIGATING
Court has inherent jurisdiction to strike out vexatious claims and claims that
constitute a repetition of a hopeless case. In Qld, this power is also found in the
Vexatious Proceedings Act 2005 (QLD), where s 5 says that the Court has the
power to make an order on the application of the AG or the registrar of the Court
or, with leave, a person against whom another person has instituted or conducted
vexatious proceedings.
Vexatious Proceeding in 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 proceedings conducted in a way so as to harass or annoy, cause delay or
detriment, or achieve another wrongful purpose.
Same considerations apply as per Cost orders against practitioners !!
go to section 5 UCPR
CASE MANAGEMENT PROBLEM Q
Definition: Case Management refers to Court supervision & control of cases
from the time of their commencement to their disposition. It is designed to reduce
costs & delay, reduce the duration of trials, monitor the progress of proceedings,
improve accessibility to the court system, manage judicial caseloads & promote
the efficient use of judicial resources. Indeed case management marks a shift
from the traditional adversarial model, most notably by reconfiguring the judicial
role & reducing party control of litigation.
Chapter 10 of the UCPR deals with Court supervision of proceedings.
- R 366 UCPR the Court may give directions about the conduct of a
proceeding at any time either of its own motion or on application by a party
(this discretion expressed broadly in r 367 UCPR , subject to the interests
of justice being paramount).
BASIC MODELS OF CASE MANAGEMENT
[1] Individual list or docket case is assigned to an individual judge who is
responsible for managing it until final disposition
Pros : judge knows matter intimately
Cons : judge might not like you & you are stuck with them
[2] Master List cases controlled by the court registry, assigned to different
judges at different times for different purposes of milestones
Pros : avoid judges you dont like
Cons : do not know matter intimately
[3] Differential case management (DCM) which applies both models
Recognizes that cases have divergent CM requirements
Applicable in QLD
REGULATION OF CASES
All cases are regulated by Practice Directions (3 rd tier)
Qld Supreme Court:
-Has a master list (with events/landmarks and timelines for each)
-Has also created specialist lists 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
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.
[1] Supervised Case List
-Cases where a party estimates that the length of the trial will exceed five days &
cases that will require greater than normal resources are managed in the
Supervised Case List: Practice Direction 11 of 2012, Supervised Case List.
-Management in the Supervised Case List has regard to: The overriding
philosophy in r 5 of the Uniform Civil Procedure Rules, ADR, Offers to settle, The
efficient management of documents in litigation, The efficient management of
expert evidence & expert witnesses
A supervised case is allocated a trial date when the parties file a request for
trial date.
Signing a request for trial date signifies that the parties regard the
proceeding as ready for trial: r 467
[2] Commercial List
Section 60 of the Supreme Court of Queensland 1991 authorises the court
to create a special list with procedures adapted for dealing with commercial
cases
Commercial cases where the estimated trial hearing time is 10 days or less
may be entered in the commercial list: Practice Direction No 3 of 2002.
A case may be entered in the commercial list only at the direction of a
direction of a commercial list judge: Practice Direction No 3 of 2002.
CASE FLOW PRACTICE DIRECTION & RELATIONSHIP TO UCPR
The UCPR prescribe time frames & other procedures for parties/ practitioners to
progress proceedings to a timely & cost effective resolution.
Rule 5 provides that the purpose of the UCPR is to facilitate the just &
expeditious resolution of the real issues in civil proceedings at a minimum of
expense. It also provides that in a proceeding in a court, a party impliedly
undertakes to the court & to other parties to proceed in an expeditious way & if
that is not done the court may impose appropriate sanctions.
The purpose of PD 17/2012 is to ensure that case are dealt with by parties,
practitioners & the court in a timely & orderly manner so that the real issues in
dispute may be dealt with expeditiously.
PD 17/2012 applies to any civil proceedings instituted by claim in the Brisbane
registry of the Supreme Court from 24 July 2012 except those cases which are on
the supervised case list or the commercial list. The case flow management
system sets timelines by which proceedings should progress to specific stages,
for example from service of the original claim to filing a defence and filing a
request for trial date and monitors the progress of proceedings against those time
lines. If the parties do not adhere to those time lines then the court may intervene.
A claim goes into the case flow management system once it is served on a
defendant and the affidavit of service has been filed. A notice of intention to
defend must be filed or a default judgment entered within 30 days from the date
of service of the claim.
The occasion for case flow management intervention arises if a request for trial
date has not been filed within 180 days of the filing of the notice of intention to
defend or the last notice of intention to defend if there is more than one
defendant. In such a case the registrar may call on the plaintiff by notice (a CFM2
notice) to show cause why the proceedings should not be deemed resolved
When a CFM2 notice is sent to a party, that party has 21 days to show cause.
Paragraph 5 of PD 17/2012 provides that a party must respond to the notice to
show cause in accordance with the requirements of that paragraph. The parties
must show cause by: entering judgment, filing an application for trial date,
bringing an application to facilitate the timely determination of the proceeding
matter OR proposing a plan to facilitate the timely determination of the
proceeding.
If there is non-compliance with the CFM2, or there is non-compliance with the
case flow plan that results from the CFM2, the proceeding is referred to a judge.
CONFLICTING VIEWS RE COURT EFFICACY V INTERESTS OF
JUSTICE
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.
However (from readings) overriding philosophy that the Court must
manage litigation to bring cases to an early & economical disposition
consistently with the needs of justice.
CASES (provided in lecture slide, however not mentioned by Bobette)
Queensland v JL Holding Pty Ltd 1997i: interests of the parties to the individual
cases Late application by the defendant to amend a defence was refused by the Federal
Court. On appeal the High Court allowed the amendment Justice for the parties was the
paramount consideration. Case management ... a relevant consideration.
Aon Risk Services Ltd v Australian National University [2009] HCA 27: court
efficiency More weight given to justice for the public as a whole ie substantial public
interest in reducing cost and delay so other litigants have timely access to courts . Parties
have choices as to what claims are to be made and how they are to be framed. But limits
will be placed upon their ability to effect changes to their pleadings, particularly if litigation is
advanced.
Althaus v Australia Meat Holdings Pty Ltd [2009] QSC 05 facts
Pl. made 13 attempts to plead their case (statement of claim). Needed leave to try again.
Enough was enough. serial failures to articulate their case; inferred that they were
incapable of doing so. More than 4 yrs since proceedings has started, 15 yrs since events
complained of. Not yet at a point where the def was required to- respond.Chesterman J
[74] In a very real sense the plaintiffs persistent, incompetent and ineffectual attempts to
describe a case against the defendants is an abuse of process. It is not, I think, an
exaggeration to describe the conduct of the action by the plaintiffs as scandalous. There is
a responsibility on plaintiffs and those who advise them to put their cases in proper form
and get on with them. .. The time for indulgence has passed. They must suffer the
consequence of their own failures.
COLLECTING/EVALUATING EVIDENCE
Prior to recent reforms
Experts were considered hired guns.
Parties might shop around for a favourable opinion, and
Counter the other partys expert/s by getting one or more of their own.
Example of the unjust effects this can have in practice: Lindy Chamberlain case
Now
Primary obligation of an expert is to the court UCPR r 427
although how relevant this is in practice is questionable as Court is not
engaging expert nor are they paying for them
OFFERS QUICK GUIDE

CASE APPRAISAL
DEFINTIONS CPA s41(1) Case appraisal is a process under the rules in which
a case appraiser provisionally decides a dispute.
Practically Adjudication (3rd party determination)
BASICS: There is a right to legal representation UCPR r 336
PROCEDURE AT CASE APPRAISAL
Case appraiser must decide the procedure to be used at the case appraisal
CPA s45(1)(a)
May adopt any procedure that will, in the case appraisers opinion, enable a
sound opinion of the likely outcome of the dispute to be reached CPA
s45(1)(b)
Must finish the case appraisal as quickly as possible CPA s45(1)(c)
May in special circumstances receive evidence, examine witnesses
(although only the Court can issue subpoenas see CPA s46) CPA s45(2)
(a) & (b)
The Court may, at any time, give directions about procedure to be used at
the case appraisal CPA s45(3)
POWER/JURISDICTION OF CASE APPRAISER
The case appraiser for a referred dispute has the power of the court
referring the dispute to decide the issues in dispute in the referred dispute
UCPR r 335(1)
However:
o CA may only give a decision that the Court could give UCPR r
335(2)(a)
o CA cannot punish for contempt UCPR r 335(2)(b)
CA can seek information UCPR r 337
A case appraiser may ask anyone for information and may, obtain, and act
on, information obtained from anyone on any aspect of the dispute UCPR r
337 (1)
If extra costs are involved for this, the mediator must has the leave of the
court or the parties agreement to pay extra costs. UCPR r 337 (2)
If the court gives leave, the court must also UCPR r 337 (3)
o order the parties to pay the extra cost; and
o state to whom and by when the payment must be made.
The mediator must disclose the substance of the advice to the parties.
UCPR r 337 (4)
CASE APPRAISERS DECISION
A case appraiser's decision (includes costs if awarded) must be in
writing, but the case appraiser need not give reasons for the
decision. UCPR R 339 (1), CPA S49(2)(A)
However, a case appraiser may, at any stage of a case appraisal
proceeding, decline to proceed further with the proceeding. EG: The dispute
proves to be unsuitable for case appraisal. UCPR R 339 (2)
A copy of the decision must be given to each party. UCPR R 339 (3)
CERTIFICATE
As soon as practicable after a case appraisal has finished, the case appraiser
must file a certificate about the case appraisal in the approved form CPA s49(2)
(b)
COSTS
A CA has the same power to award costs in the dispute the Court that referred 1. CAUSE OF ACTIONS
the dispute would have had if it had heard and decided the dispute UCPR r Here the appropriate cause of action(s) is(are) .
340(1) Breach of contract CAUSING
Negligence CAUSING (PI, Economic loss)
EFFECT OF CAS DECISION Misleading and deceptive conduct (federal)
A case appraiser's decision is not binding on the parties until CPA s41(2) Breach of consumer guarantees (federal)
(a) the time prescribed under the rules for filing an election to go MULTIPLE COAS
to trial has passed; and Here [insert name] may wish to join the separate causes of action of (insert
(b) a court, by order, gives effect to the decision. COAs) pursuant to r 60(1) UCPR.
IF ELECTION TO GO TO TRIAL Here, [person] can join these causes of action because CHOOSE ONE
A party who is dissatisfied with the case appraisers decision r60(2) UCPR
may elect to have the dispute go to trial by filing an election in (a) common question of law or fact may arise in all the proceedings;
the approved form UCPR r 343. (b) all rights to relief sought in the proceeding (whether joint, several or
A party who challenges the decision of a case appraiser under alternative) are in relation to, or arise out of, the same transaction or event or
UCPR r 343 may be subject to an adverse costs order if the series of transactions or events;
Courts decision at trial is not more favourable overall to a (c) the court gives leave, either before or after the start of the proceeding.
challenger than the case appraisers decision was to the
challenge UCPR r 344(1) HOW DOE!
o NOTE: Court however may make another order about EXAMPLE OF MISJOINDER
Smith v Foley [1912] VLR 315: The defendant had been discharged from a partnership.
costs if the Court considers there are special He slandered the firm and in a separate publication slandered the plaintiff Smith. -The
circumstances UCPR r 344 (2) plaintiffs (Smith & firm multiple parties) joined in one proceeding several causes of action
o If ALL parties are challengers under UCPR r 343 the (multiple causes of action) against the defendant.-The action sought damages for Smith for
case appraisers decision has no effect on the awarding of the slander on him and damages for the firm for the slander on it. The Court considered that
costs. UCPR r 344(3) this was a misjoinder.-There was no common question of fact or law. Further, the terms
EFFECT OF CAS DECISION same transaction or series of transactions in relation to libel or slander must mean the
If election under UCPR r 343 is not made, the parties are taken same publication or series of publications, and in this case the publications were separate;
there was no connection between the offending statements.
to have consented to the case appraisers decision being binding -It was incorrect to join the plaintiffs and causes of action in a single proceedings.
on them & the decision then becomes final & binding UCPR r
341 REPRESENTATIVE PROCEEDINGS/CLASS ACTION
AFTER CASE APPRAISAL Is there are class action?
Case Appraiser must file a certificate about the case appraisal in the approved Here, [person] may represent other persons if [persons] have the same interest
form and their decision if any CPA s49(2) and the class is too large for each person to be an individual party (r 75 UCPR;
Carnie v Esanda )
FORMS
Title - Form 1 REQUIREMENTS
Claim - Form 2 (to commence proceedings) These is a unity of interests (between each member of the class and the class
Interlocutory Application Form 5 and representative), because: CHOOSE ONE:
Statement of Claim - Form 16 1. There is a common interest
Notice of intention to Defend - Form 6 (Unconditional) and Form 7 2. There is a common grievance, and
(Conditional). 3. The relief sought must is beneficial to all parties represented by the
Defence - Form 17 representative party.
Defence and counterclaim Form 18
However, these requirements have been given a restrictive interpretation.
Pleadings governed by r 146 (form) and r 149 (content).
1. OVERALL CHECKLIST
1. What is the Cause of Action? Markt & Co. Ltd v Knight Steamship [1910] Rep Action NOT allowed
2. Who are the parties? HELD: They suffered a common wrong but there was no common interest they were not
3. What is the time limitation? shipping the goods to a common destination. The claim for each shipper had to be
examined on its individual merits.
4. Should a Claim or Application be brought? Specify
5. Where should the originating process be commenced? FACTS: When a Russian warship sunk the ship carrying their cargo, the group could not
6. Issues re service show that they all had a common interest as shippers.
7.
THEREFORE: 20th century English courts required the common interest to
amount to virtually the same interest, however this been given a broader
interpretation by the High Court in Carnie v Esanda Finance
Whether the Court held that same interest was a significant question common to
all members of the class and the fact that the amounts each pl. owed would be
different and owed under different contracts was no barrier to bringing a
representative action [THEREFORE HERE]
Carnie and another v Esanda Finance Corporation Limited (1995) 182 CLR 398
REP ACTION ALLOWED
HELD: The High Court held this an appropriate case for a representative action
- High court gave the concept of representative actions 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.
FACTS:
- Borrowers from Esanda fell into arrears.
- They 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
could not claim credit charges on the extended period.
If requirements are met r76 UCPR
If the requirements are met one person can [bring/defend] proceedings on behalf
of others who have the same interest, on the basis that those people could have
been parties to the proceeding r76 UCPR
(If person is not a party, court must make order under r 62 to include that person
as a party).
Enforcement of order against representative party r77 UCPR
Order against a representative party may only be enforced against a person not
named as a party with courts leave (s 77 UCPR + s 18 CPA )
(S 18 Civil Proceedings Act = Order binds persons who are represented)
(2) An application for leave to enforce an order must be served on the person
against whom enforcement of the order is sought as if the application were an
originating process
ADDING A CAUSE OF ACTION;
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 are meet.
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or
substantially the same facts as a cause of action for which relief has
already been claimed in the proceeding by the party applying for
leave to make the amendment.
Here, we have brought the wrong cause of action.
We may be able to amend the claim. 375 Power to amend; 376
Amendment after limitation period
376(4) allowed to amend claim but have to be within time We need
permission from the court to amend a claim (R 375(2) ).
For the court to allow an amendment when we are out of time, there has to Cause of action estoppel is where a party is precluded from re-litigation of claims
be good reason. (R 376(4)(a) ). made in earlier proceedings between the same parties in respect of the same
The court has to use their discretion to operate and exercise their choice. subject matter Henderson v Henderson.
R 376(4)(b) Can only amend a claim for bringing new COA that arises on The rationale is to serve the public interest in facilitating finality in adjudication &
the same or substantially the same facts. You have to satisfy both of these preventing inconsistent decisions against the same defendant or on the same
limbs but if you satisfy one the other one follows we have a better issue.
argument under limb b here. However, a defendant would not want to
have the claim amended because of principles and policies like flood gates; EXAMPLE OF COA ESTOPPEL
costs; and delays. You have had three years to bring an action. Can also apply to stop a party litigating an issue which he or she should have
raised by way of cross-claim in an earlier case between the the same parties ,
Prejudicial argument here (as a defendant). They built their own case on
property damage. Now, we are in a prejudicial position because not only provided the cross-claim issues are, as a matter of substance, intimately
are we out of time, but we also have to look into a whole new case (ie. connected with the issues in the previous case & arise substantially out of the
negligence). same facts.
For an action against the solicitor we could bring an action in negligence.
Port of Melbourne Authority v Anshun :
If we are not successful under R 376 (likely because we are out of time).
-(Pl) injured worker brought proceedings against Defs Anshun and the Authority (worker
Here, we have a fresh cause of action and time would start to run from the injured by load of girders handled by a crane hired by Anshun from the Authority).
date they made the mistake (ie. recently). - In first proceedings, defendants sought contribution from each other. Order for 90/10%
appointment of damages (in Anshuns favour).
CONSOLIDATION OF PROCEEDINGS -Attempted second proceeding: the Authority brought proceedings against Ashun, claiming
R 78; R 79 UCPR an entitlement to an indemnity from Anshun pursuant to the crane hire agreement. Failed to
The court may order that 2 or more proceedings be consolidated if raise the indemnity issue in the first action.
(a) The same or substantially the same question is involved in all the -Held: the claim for indemnity ought to have been pursued in the original proceedings. It
proceedings; or was unreasonable for the Authority to refrain from raising its case of indemnity for
disposition in the first action.
(b) The decision in 1 proceeding will decide or affect the other proceeding or
proceedings.
R 80 Directions
If the court orders that proceedings be consolidated or heard together or in a
specified sequence, the court may give a direction it considers appropriate for the
conduct of the proceeding or proceedings
FAILURE TO JOIN A PARTY ADD IF AN ISSUE OF JOINDER
The failure to join a person as a party will normally mean that a decision made in
the proceedings will not be binding upon that person. However, there is some
authority that the estoppel may prevent litigation between parties who were not
all parties to the original proceedings. In Rippons case: a plaintiff may be
prevented from bringing proceedings against a party later on.
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.- They also alleged that the financial statements were misrepresentation
contrary to s 52 TPA.- The purchasers succeeded on their breach of contract claim. The s
52 claim was dismissed. The court found that the purchasers had relied on the warranty,
not the accuracy of the info contained in the 1991 financial statement. - The 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.- Note: Accountants were not parties to
the original action
HUN: IS THE COA ESTOPPED?
Should join all COAs
(Plaintiff) should consider joining the (insert different COAs) as otherwise
(Plaintiff) could be prevented from bring (insert COA) at a later date via cause
of action estoppel.
COA Estoppel
 2. PARTIES
MULTIPLE PARTIES
START OF PROCEEDINGS
All parties may join in a proceeding, whether as plaintiffs or defendants, who are
necessary and proper parties for the final resolution of a dispute: r 62 UCPR
As the UCPR can accommodate multiple parties r 65 UCPR , here (insert
name) should be added as a party b/c _____
[1] Applicable to plaintiffs & defendants
- common question of law or fact may arise in all the proceedings r 65(1)(a)
UCPR
- all rights to relief sought in the proceeding arise out of the same transaction or
event or series of transactions or events r 65(1)(b) UCPR
[2] Applicable only to defendants/respondents
r 65(2)(a)(i) UCPR
- There is doubt as to
The person from whom the plaintiff or applicant is entitled to relief; r 65(2)
(a)(i) UCPR or
The respective amounts for which each may be liable r 65(2)(a)(ii) UCPR
- Damage or loss has been caused to the plaintiff or applicant by more than 1
person, whether or not there is a factual connection between the claims apart
from the involvement of the plaintiff or applicant
Protection for innocent defendants The defendant(s) ultimately found
innocent will be protected in costs, and the responsible party will generally bear
those costs directly or indirectly Smyth v McLeod
Smyth v McLeod
-Plaintiff (injured passenger in a MV collision) sued 4 defendants.-At trial, the pl 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 pl
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).
MISJOINDER
Adding a party that shouldnt be added
Smith v Foley [1912] VLR 315: The defendant had been discharged from a partnership.
He slandered the firm and in a separate publication slandered the plaintiff Smith. -The
plaintiffs (Smith & firm multiple parties) joined in one proceeding several causes of action
(multiple causes of action) against the defendant.-The action sought damages for Smith for
the slander on him and damages for the firm for the slander on it. The Court considered that
this was a misjoinder.-There was no common question of fact or law. Further, 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.
FAILURE TO JOIN A PARTY
In Rippons case:
A plaintiff may be prevented from bringing proceedings against a party later on
(Rippon).
Here, a fresh action against [addition party/part that should have been joined]
may be seen as an attempt to litigate the same issues that had already been
decided in the earlier proceedings. Therefore, court will likely apply Anshun A person using a business name must use her/his/its own name to sue ie if a
estoppel to avoid inconsistent verdicts. plaintiff
The failure to join a person as a party will normally mean that a decision made in [4] Company
the proceedings will not be binding upon that person. Here (insert party) could be a company, which as a distinct legal entity must
sue or be sued in its own name.
However, there is some authority that the estoppel may prevent litigation We need to know whether company is incorporated
between parties who were not all parties to the original proceedings Note: But once a company has filed an appearance, it must have a
solicitor on the record.
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
WHO MAY BE A LITIGATION GUARDIAN
the contract of sale.- They also alleged that the financial statements were misrepresentation
Here, [persons] [parents/wife/etc.] may be their litigation guardian because
contrary to s 52 TPA.- The purchasers succeeded on their breach of contract claim. The s
52 claim was dismissed. The court found that the purchasers had relied on the warranty, they are not under a legal
not the accuracy of the info contained in the 1991 financial statement. - The purchasers
Here, [persons] [parents/wife/etc.] may be their litigation guardian because
then sued the accountants who had prepared the 1991 financial statements. - Court of
they are not under a legal incapacity and have no interest in the proceeding
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.-
adverse to the interest in the proceeding of the person under a legal incapacity
Court wanted to avoid risk of inconsistent verdicts.- Note: Accountants were not parties to
(R 94(1) UCPR) Now HOW
the original action.
ALSO r93(3) A party's litigation guardian who is not a solicitor may act only by a
solicitor.
ARE WE DEALING WITH A SPECIAL PARTY?
[1] Partnership HOW to become a litigation guardian R 95(1) UCPR
IF PARTNERSHIP IS DEFENDANT: A person becomes a litigation guardian by filing in the registry the person's written
- proceeding against persons alleged to be partners may be brought against the consent to be litigation guardian of the party in the proceeding.
alleged partnership in the partnership name R(2) UCPR A 83 Appointment of litigation guardian R 95(2) UCPR
IF PARTNERSHIP IS PLAINTIFF: If the interests of a party who is a person under a legal incapacity require it, the
court may appoint or remove a litigation guardian or substitute another person as
Two or more partners may start a proceeding in the partnership name
litigation guardian.
r83(1) UCPR
No notice of intention to defend
Note: PS name used must the name of the partnership when the COA r 96 UCPR
arose r83(3)&(4) UCPR
If a defendant who is a person under a legal incapacity does not file a notice of
intention to defend within the time limited, the plaintiff may not continue the
[2] Legal Incapacity
proceeding unless a person is made litigation guardian of the defendant.
(insert name) is under a legal incapacity because .
THIS CAN ALSO BE AN ISSUE RE STATUTE OF LIMITATIONS HERE
[1] They have impaired capacity Sch 5 Supreme Ct of QLD Act
[2] They are under 18 years old Sch 5 Supreme Ct of QLD Act
NOW SEE TIME LIMITATIONS UNDER 4.
Accordingly as (insert name) is under a legal incapacity may only start or
defend a proceeding only by a litigation guardian. R93(1) UCPR
Generally anything in a proceeding required or permitted by these rules to be
done by a party may, if the party is a person under a legal incapacity, be done
only by the party's litigation guardian R93(2) UCPR
NOW HOW TO BECOME A LITIGATION GUARDIAN
THEN TIME LIMITATIONS UNDER 4.
3] Business
IF BUSINESS IS DEFENDANT:
IF REGISTERED: a proceeding may be started against a name registered on
the business Names Register r89 UCPR.
IF UNREGISTERED: a proceeding may be started against an unregistered
business name r90(2) UCPR
IF BUSINESS IS PLAINTIFF:
 3. JURISDICTION
THINK GEOGRAPHICAL LOCATION!!!!
IN WHAT TERRITORIAL JURISDICTION CAN PROCEEDINGS BE
COMMENCED IN?
The proceeding can be commenced in (insert district) because [apply all
or part of the claim or cause of action occurred here/defendant lives
here/defendant carries on business here/parties consented to commencing here]
(UCPR r 35).
UCPR r 35 states that proceedings must be commenced in the district:
in which all or part of the claim or cause of action or
in which the defendant (or one of them) lives or carries on business
(although the parties may consent to commencement in a particular
district of the Mag Ct or D Ct)
Note r 22(2)(c) claims filed in the DC or MC must show the court has
jurisdiction to decide the claim
IF UNSURE WHERE TO START PROCEEDINGS.
Apply r 33 UCPR: A proceeding in a court may be started in any central registry devise, bequest, or limitation under a will or settlement, is in question
of the court
DO THEY WANT EQUITABLE REMEDIES? DISTRICT OR SUPREME
HOW TO CHANGE THE VENUE (TERRITORIAL JURISDICTION)
[1] Defendant/respondent may object if pro>ceedings are commenced in the
wrong district or venue (assuming right court, but wrong district) R 38 UCPR
-H/e Court cant, on its own initiative, decide that proceedings should have been -The agreement must between parties must be written; and be signed by each of
started in another place, r 38(3) UCPR
-If objection made, court has power to dismiss the objection, the proceedings, or
to transfer proceedings to another court, r 38(5) UCPR
[2] Court can change venue r 39 UCPR
-if at any time a court is satisfied a proceeding can be more conveniently or fairly A Magistrates Court shall have jurisdiction in a personal action if the original claim
heard by the court in another venue, it can order the proceedings to be
transferred.
[3] Consent by both parties r 40 UCPR
Via r 666 UCPR the parties may consent to the proceedings being transferred to
another venue.
Consequence of being transferred
If transferred, the hearing is to take place/be decided by the court at the venue to
which it has been transferred r 41 UCPR.
THINK LEVEL OF COURT!!!
JUDICIAL HIERARCHIES: IN WHAT LEVEL OF COURT CAN
PROCEEDINGS BE COMMENCED IN?
START HERE
In QLD, the Supreme Court has all the jurisdiction necessary for the
administration of justice in QLD (S 58 Consti of QLD). Therefore, proceedings
can be commenced in the supreme court, however [party] may be penalised in
costs if could have been heard in a lower court (s28 CPA )
If no quantum is given based on the seriousness of the damage, it is
likely it will be in DC b/c it will be greater then 150K
DO THEY WANT EQUITABLE REMEDIES? DISTRICT OR SUPREME
[1] MAGISTRATES COURT
MC has original jurisdiction
[1] with respect to personal actions where the amount claimed not above
prescribed amount ($150,000 or less): Magistrates Courts Act 1921 (Qld), s
4 (a) .
[2] for actions involving an equitable claim or demand, where the only
relief sought is the recovery of a sum of money or of damages, and the
amount claimed is $150,000 or less Magistrates Courts Act 1921 s 4
(c).
SIMPLIFIED PROCEDURES IN UCPR
-But note provision for Simplified Procedures in UCPR. Apply to minor claims:
defined by Sch 4 as a claim for an amount, including interest, of not
more than $25,000 (does not include certain claims that are within
QCAT jurisdiction). See the UCPR rule 514.
R 514(2) parties to a claim that is not a minor claim may agree in
writing that simplified procedures apply.
LIMITS
MC has no power to deal with cases in which the title to land, or the validity of a
Magistrates Courts Act 1921 s 7 .
CONSENT TO JURISDICTION
-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 Magistrates Courts Act 1921 s 4A(1)
the parties or their lawyers; and include a statement that the parties know that the
proceeding is not otherwise within the jurisdiction of a Magistrates Court; and be
filed in accordance with the rules Magistrates Courts Act 1921 s 4A(2 )
A PARTY MAY ABANDON EXCESS
is reduced to $50 000, 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 Magistrates Courts Act 1921 s 5
APPEAL
An appeal generally lied to an intermediate court (& possibly to a superior Court)
[2] QCAT
MUST BE A MINOR CIVIL DISPUTE
JURISICTION OF QCAT
- Tribunal has (a) original jurisdiction; (b) review jurisdiction; and (c) appeal
jurisdiction: QCAT Act, s 9
- The tribunal has (original) jurisdiction to hear and decide a minor civil dispute
QCAT Act, s 11
- Minor Civil Dispute: (provided amount claimed is not more than 25K, minor
civil dispute is defined in Sch 3 of QCAT Act to include:
Debt disputes (eg money lent and not repaid).
Consumer and trader disputes (those arising out of a contract for the
supply of goods and services).
Claim re damage to property caused by or arising out of use of a vehicle
Claim for repair of a defect in motor vehicle
IF UNDER $25,000 BUT NOT COVERED BY QCAT MOVE TO SIMP.
PRO UNDER MAG COURT
COMMENCING PROCEEDINGS
QCAT proceedings are commenced by application QCAT Act, s 33
IDENTIFY THE PARTIES
Starting Point All parties must represent themselves unless the interests of
justice require otherwise QCAT Act, s 43(1)
Exceptions
[1] You can be represented by someone else if QCAT Act, s 43(2)
o The party is a child or a person with impaired capacity; or
o the party has been given leave by the tribunal to be represented.
[2] The tribunal may consider the following in an application for leaveQCAT
Act, s 43(3)
o the party is a State agency;
o the proceeding is likely to involve complex questions of fact or law;
o another party to the proceeding is represented in the proceeding;
o all of the parties have agreed to the party being represented in the
proceeding.
TRANSFERS
QCAT Ct: Matter started in QCAT can be transferred to a court where QCAT
doesnt have authority or more appropriately dealt with by a court, either by
application of a parties or on its own motion, QCAT Act, s 52 .
Ct QCAT: Courts can transfer matters to QCAT Act, s 53 .
APPEALS
QCAT decision can be appealed within 28 days, in some instances to Court of
Appeal; in other instances to Internal Appeal Tribunal, QCAT Act, s 142
MEDIATION
QCAT can be refer matters to mediation, with or without consent of parties QCAT
Act, s 75
COSTS
each party usually bears own costs QCAT Act, s 100
ENFORCEMENT OF DECISION
Decisions of QCAT can be enforced as if they were made by a court, but
enforcement proceedings are taken through Magistrates Court QCAT Act, ss
129-132 .
[3] DISTRICT COURT
DC has original jurisdiction
Limited to claims (for personal actions, proceedings concerning land, proceedings
concerning equitable rights or relief) that are more than $150K but less than
$750K District Court of Queensland Act 1967 s 68
CONSENT TO JURISDICTION
CONSENT TO JURISDICTION TO MOVE TO MAG
-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 Magistrates Courts Act 1921 s 4A(1)
-The agreement must between parties must be written; and be signed by each of
the parties or their lawyers; and include a statement that the parties know that the
proceeding is not otherwise within the jurisdiction of a Magistrates Court; and be
filed in accordance with the rules Magistrates Courts Act 1921 s 4A(2 )
CONSENT TO JURISDICTION TO MOVE FROM SUPREME
If both parties agree, jurisdiction to try any action which might be brought or any
counterclaim which might be made in the Supreme Court: District Court of
Queensland Act 1967 s 72
A PARTY MAY ABANDON EXCESS
Jurisdiction if plaintiff abandons excess District Court of Queensland Act
1967 s 73
APPEAL
- Has some appellate jurisdiction (dealing with matters from the Magistrates
Court)
-An appeal may lie from a decision of an intermediate court to a superior court
[4] THE SUPREME COURT
SUPREME COURT: SUPERIOR JURISDICTION (QLD consti)
S 58 Supreme Courts superior jurisdiction:
- The Supreme Court has all the jurisdiction necessary for the administration of
justice in QLD
- Unlimited jurisdiction, but subject to the Cth Constitution.
SC has original jurisdiction
Has inherent original jurisdiction which is unlimited as to amount (exercised
by a single judge) usually amounts of more than $750K.
Do not normally hear matters within the jurisdiction of the lower Court
o if a matter is commenced in the Court which could be heard in a
lower Court a costs penalty may be imposed on the plaintiff
SC has appellate jurisdiction from Courts lower in the hierarchy
appeals from lower courts are normally disposed of by a single judge of
the Supreme Court
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)
CONSENT TO JURISDICTION TO MOVE FROM SUPREME
If both parties agree, jurisdiction to try any action which might be brought
or any counterclaim which might be made in the Supreme Court: District
Court of Queensland Act 1967 s 72
COMMENCING IN THE WRONG COURT ? NOT TERRITOTIAL
CPA 2011, ss25-31
Is in DC or MC Should be in SC s25(1) CPA: Supreme Court may
order a proceeding pending in the District Ct or Magistrates Ct be
transferred to the Supreme Court
Is in SC Should be in DC or MC s25(2) CPA: Supreme Court may
order a proceeding pending in the Supreme Ct (for which the District Court
or Magistrates Court has jurisdiction) be transferred to Court having
jurisdiction.
Is in MC Should be in DC s26(1) CPA: District Court can transfer a
matter pending in the Magistrates be transferred to District Court.
Is in DC Should be in MC s26(2) CPA: District Court can transfer a
matter pending in District Court (for which Magistrates Court has
jurisdiction) be transferred to Magistrates Court.
If a matter is transferred because a claim is beyond jurisdiction, party who
commenced proceedings may be penalised in costs (costs of the other
party) s28 CPA
APPEALS
There is no common law right of appeal
The appeal procedure is created by legislation
Always check the relevant legislation before commencing an appeal
THE STATE AND FEDERAL DIVIDE
The courts should in most situations continue to hear & determine only
proceedings that would otherwise fall within their ordinary fields of jurisdiction.
UNCERTAINTY RE JURISDICTION: CROSS VESTING OF
JURISDICTION
Uncertainty between State/Territory and Commonwealth jurisdiction may
still arise
THEREFORE, there is provision for cross-vesting of jurisdiction between
Courts.
Rationale: dont want conflicting judgments / dont want to duplicate
proceedings & waste everyones time
STATE & TERRITORY COURTS
Application: how a single event might give rise to COA under both State & Cth
legislation (think Australian consumer law)
[1] FEDERAL CAN TRANSFER TO STATE COURT
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
State & Territory Supreme Courts (ie all superior courts) are invested
with federal jurisdiction
Possible b/cCth constitution expressly provides for the Cth
parliament to invest state courts with federal judicial power s77(iii)
Cth Constitution
[2] SUPERIOR COURT CAN TRANSFER TO SUPERIOR COURT
Jurisdiction of Courts (Cross-Vesting) Act 1987 (QLD)
All superior Courts are empowered to transfer matters to other
superior Courts; and
The State & Territory Supreme Courts also have cross-vested
jurisdiction in state and territory matters
Superior courts of the states/territories have unlimited general
jurisdiction (subject only to jurisdictional limits imposed by the federal
system).
INFERIOR COURTS
Inferior courts included in the scheme in only a very limited matter
Jurisdiction of Courts (Cross-Vesting) Act 1987 (QLD) 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.
 4. TIME LIMITATIONS ON COMMENCING PROCEEDINGS
MAIN PERIODS OF LIMITATION
Remember time starts to run the next day
No personal injury (contract & tort)
As this is a claim of (contract or tort) which does not consist of or include
damages in respect of personal injury to any person, the period of limitation is 6
years s 10 LAA .
Personal Injury
(negligence, nuisance, trespass or breach of duty)
As this is an action for damages for personal injury (or injury resulting from death)
the period of limitation is 3 years. s 11 LAA Therefore (plaintiff) has till (insert
date) to originate proceedings.
Defamation
1 year generally s 10LAA , but must extend to max 3 if court considers not
reasonable to commence within 1 ( s 32A LAA )
LIMITATION AND TIME
Breach of contract (torts actionable per sae w/o proof of damage)
As breach of contract is actionable per sae w/o proof of damage, this limitation advice on those facts, would regard those facts as showing
period commences from the time of the commission of (insert name)s wrong.
Therefore (plaintiff) has till (insert date) to originate proceedings.
$$ Negligence (proof of damage is an essential element of the cause of action
neg, nuisance)
As proof of damage is an essential element of negligence, the limitation period
commences as soon as (insert plaintiffs name) suffered damage Cartledge v
Jopling. Therefore (plaintiff) has till (insert date) to originate proceedings.
Does not matter whether damage is:
PI Cartledge v Jopling
Purely economic loss Hawkins v Clayton Time begins to run from
when suffered/ when loss occured
Property Damage Pirellis case
o Time started when they ought to have been aware of the damage
Pirelli
INSTALLATION of a chimney (it was defective) had some cracks formed Pl saw the
cracks but didnt think anything of it. 7 years passed and it collapsed. Claimed for the
defects in the chimney, but it was damage when it was installed. Means that youre out of
time we might have some newer case laws that we can vary how strict this rule is. But
this is the general test. At the time, not when you have known or ought to have known.
TIME IS TICKING IN THE BACKGROUND.
CAN LIMITATION PERIOD BE EXTENDED?
[1] Persons under a disability s 29 LAA
As (insert name) is.
An infant (under 18) s 5(2) LAA
Of unsound mind s 5(2) & (3) LAA involuntary patient MHA, forensic
disability client FDA, strict custody s 647 CC
They are considered to be under a disability under s 5(2) LAA .
Therefore as had this disability at the time the right of action arose, the period of [e] And there is evidence to establish a right of action
limitation begins when (insert name) ceases to be under a disability (or they Conclude: Here, it is likely that the court may order an extension for 1 year
have died). S29(1) LAA
NOTE: Does not apply if you were not under a disability at the time the
COA arose S29(3)(a) LAA
[2] Personal injuries (ordinary actions) S31(1) LAA Regular People
EG: negligence, trespass nuisance or breach of duty (can be contractual duty or
one under statute)
THINK: Additional fact has become available after expiration of limitation
period
Here as this is an action for damages personal injury (or damages for injury
resulting from the death of any person)
Ss 31(2) LAA where it appears to the court that there is:
[a] A material fact s30(1)(a) LAA Start at [2]
the fact of the occurrence of negligence, trespass, nuisance or breach of
duty on which the right of action is founded;
the identity of the person against whom the right of action lies
the fact that the negligence, trespass, nuisance or breach of duty causes
personal injury;
the nature and extent of the personal injury so caused;
the extent to which the personal injury is caused by the negligence,
trespass, nuisance or breach of duty.
[b] of a decisive character s30(1)(b) LAA
only if a reasonable person knowing those facts and having taken the appropriate
that an action on the right of action would (apart from the effect of the
expiration of a period of limitation) have a reasonable prospect of success
and of resulting in an award of damages sufficient to justify the bringing of
an action on the right of action; and
that the person whose means of knowledge is in question ought in the
person's own interests and taking the person's circumstances into
account to bring an action on the right of action;
[c] relating to the right of action
[d] which was not within the means of knowledge of the applicant until a
date after the commencement of last year of limitation period s30(1)(c)
LAA
HARGANS Was within her knowledge
HELD: the onset of symptoms after the 3 year limit could not be
characterised as decisive as she already knew of the very real possibility
of the restriction on her employment prospects.
Facts:
The plaintiff sustained significant injuries to her spine and bowel in a motor
vehicle accident.
At the time of the accident the plaintiff was 16 years old and required to
commence proceedings 3 yrs after her 18th bday. the plaintiff did not in fact
commence her claim until 7 October 2010. Shortly thereafter the plaintiff
moved the court to extend the limitation period pursuant to s 31 of the Act.
Not within knowledge examples
the person does not know the fact at that time; and
as far as the fact is able to be found out by the personthe person has
taken all reasonable steps to find out the fact before that time.
from THAT date.
[3] Mistake or Fraud s38(1) LAA
person wasnt aware of right to bring action b/c was hidden through fraud of
another
IS THERE AN ECOMONIC LOSS (AKA LATENT DEFECT!)? USE
THESE CASES
A Traditional View Gillespie v Elliot (1897) Damage suffered when
documents were executed. Time start to run when the document was signed.
DAMAGE WAS DONE AT TIMEOF SIGNING EVEN IF THEY WERENT AWARE
OF THAT
Forgot to put Clause in documents to renew a lease lawyer did not put option to renew
properly so it wasnt available. H: Damage was suffered when document was drafted ie. its
always been doomed from the start, you just didnt know about it.
Here, the damage was suffered at time contract was signed (not a contingent
liability) and therefore time started to run [date of signing]. The time limitation is 6
years (s 10 LAA ) therefore [have/have not] run out of time to commence
proceedings.
B Wardley v WA limits the principle from Gillespie. Time starts to run when the
P suffers the contingent loss or liability
Wardley advised WA to indemnify NAB bank wrt to funding Rotheschild. R didnt do too
well and WA had to pay the indemnity. They sued W for M/D Conduct or Misrepresentation
for saying something in a meeting that induced them to do something to the bank. H: b/c
indemnity (guarantee) is contingent on something, you cant start time before the loss may
have ever eventuated. You start when it has suffered (when the guarantee could not be
enforced). b/c it was ascertainable you start it THEN.
Here, the damage was suffered at time damage was suffered (relied on
contingent liability) and therefore time started to run [when contingency was relied
upon]. The time limitation is 6 years (s 10 LAA ) therefore [have/have not] run out
of time to commence proceedings.
C1 S 38(1)LAA 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
Hawkins Lawyer Error
Realized error but continued fraud (intentional fraud). Time began to run when they realized
the fraud Codified in s 38
C2 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.
S38(2) LAA Protection of 3 rd Parties re purchasing from fraudulent
persons
(2) Nothing in this section enables an action to be brought to recover or enforce
a charge against or set aside a transaction affecting property that
o in the case of fraud has been purchased for valuable consideration by a
person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that a fraud had been committed;
or
 o in the case of mistake has been purchased for valuable consideration - The court considers it appropriate having regard to all the relevant
subsequently to the transaction in which the mistake was made by a person circumstances
who did not know or have reason to believe that the mistake had been made. FORMALITIES ANY DRAFTING QUESTION RE APPLICATION
The originating application must comply with r26 UCPR which requires.
[4] Amending Proceedings to add new causes of action [1] form five r26(1) UCPR
Refer to template page 1 Adding a COA [2] name as respondents all persons directly affected by the relief sought in
NOTE BEFORE COMMENCING: DUTY TO ADVISE / CONSIDER ADR application r26(2) UCPR
Professional codes of conduct and rules of court impose an obligation on [3] must list the affidavits to be relied on r26(4) UCPR
practitioners to inform clients about alternatives to litigation. [4] must specify the orders or other relief sought in the proceeding r26(5) UCPR
5. COMMENCING PROCEEDINGS [5], must specify the day set for hearing the application r26(7) UCPR
So if (client) wishes to go to Court (client) will have to initiate proceedings & a [6] if filed in the District Court or a Magistrates Court, or material filed with it, must
proceeding will only start when the originating process is issued by the Court r 8 show that ct has jurisdiction to decide the application r26(8) UCPR
UCPR .
As a general rule, any proceeding in a QLD court must be started by a claim: r 9 PROCEEDINGS INCORRECTLY STARTED VIA CLAIM/APPLICATION
UCPR . Here it appears that the proceeding should actually have originated by
(claim/application) because (insert reason from above). However (apply)
CLAIM
As the circumstances for an application are not applicable here (see r 10, 11 Proceeding incorrectly started by claim
UCPR), a claim under form 2 r 22(1) UCPR is the appropriate way to originate Rule 13 of UCPR enables the Court to order the proceeding which ought to
proceedings. There are disputed facts here as to ______. The claim must also have been commenced by application but which has instead been commenced
have attached a statement of claim in form 16 r 22(2)(b) UCPR by way of claim, and statement of claim, to continue as if started by application: r
FORMALITIES - ANY DRAFTING QUESTION RE CLAIM 13(1) & (2)(a) UCPR .
[1] Must be in form 2 r 22(1) UCPR Ct may also give directions Ct considers appropriate: r13(2)(b) & (c)
[2] Claim must state briefly the nature of the claim r 22(2)(a) UCPR Proceeding incorrectly started by application
Must show a connection b/t the plaintiff & defendant Rule 14 enables the court to order that a proceeding either incorrectly
Must show the damage which the plaintiff alleges/or the remedy or relief commenced by way of originating application continue as if started by claim OR
sought. may more conveniently continue as if started by claim: r 14(1) UCPR
[3] have attached to it a statement of claim: r 22(2)(b) UCPR
in form 16 and comply with chapter 6 of UCPR, includ. r 146 UCPR
[4] contain a statement telling the defendant (here Y) the relevant time limited for
filling a notice of intention to defend, which is 28 days after service 23(a) UCPR
[5] contain a statement on it telling (Y defendant) that if defendant does not file
a notice of intention to defend within the time, a default judgement may be
obtained against the defendant without further notice. 23(b) UCPR
[6] claims filed in the DC or MC must show the court has jurisdiction to decide
the claim r 22(2)(c)

APPLICATION
An initiating application under Form 5 , not a claim would be more appropriate
here b/c (apply one):
[1] The only, or main issue in the proceeding is an issue of law & a substantial
dispute of fact is unlikely: r 11(a) UCPR
[2] There is no opposing party to the proceeding, or it is not intended to serve
any person with the originating process r 11(b) UCPR (eg probate or equity
matters)
[3] urgent relief sought (there is insufficient time to prepare a claim eg
injunctive relief): r 11(c) UCPR
The Application process initiates a summary procedure which utilises affidavits
rather than pleadings.
ORAL APPLICATION
Proceedings may be started by oral application by practitioner if R 12 UCPR :
- Urgent relief is sought and
- Practitioner undertakes to file an application within the time directed by the
Court and
 6. SERVICE Personal Service is performed by giving the document, or copy to (def) OR if Under r 110 UCPR a document required to be served personally on a prisoner
STALE CLAIM (def) does not accept the document, or copy, the party serving it may serve it by must be served on
[1] RENEWING putting it down in the persons presence and telling him or her what it is. R 106 (a) if the public trustee is manager of the prisoner's estate under the Public
If. UCPR Trustee Act 1978, part 7 and the proceeding is of a property nature or for the
[a] service will not be effected within 12 months OR not necessary to show to the person served the original of the document. recovery of a debt or damagethe public trustee; or
[b] claim has just expired R 106(3) UCPR (b) if paragraph (a) does not apply and the prisoner has a litigation guardian
(plaintiff) can apply to the Court to renew it as otherwise the claim will become the prisoner's litigation guardian; or
stale r 24 UCPR . The Court may, at any time, extend a time set under these [2] CORPORATION (c) otherwisethe person in charge of the prison in which the prisoner
rules or order under R 7(1) UCPR) Under r 107 UCPR personal service of a corporation means the document is is imprisoned.
Such an interlocutory application would be made ex parte, supported by affidavit must be served in the way provided for the service of documents under the [7] BUSINESS (no registered office) (aka UNREGISTERED)
r24 UCPR , and may be brought under a form 9 r31(2) UCPR provided it is Corporations Act which is either leaving it at or posting to the registered office; or Under r 113 UCPR service in relation to a business with unregistered trading or
signed and filed r31(1) UCPR personal delivery on a director. business name and proceeding is started in the name or style under which the
Such a claim may be renewed by By the Registrar for the first five years OR By person carries on the business THEN the originating process may be served by
leave of the Court after that need to show (evidence most likely to be from [3] PARTNERSHIP leaving a copy at the persons place of business with a person who appears to
solicitor) r 24 UCPR Under r 114(1) UCPR have control or management of the business at the place.
o That efforts have been made to serve the defendant/s Service in relation to a partnership an originating process against a partnership
o Difficulties encountered/ reasons why not yet served OR must be served [8] MAGISTRATES COURT
o other good reason (a) on 1 or more of the partners; (if served this way then each of the partners who Under r 111 UCPR (1) All documents in a Magistrates Court proceeding,
were partners in the partnership when the originating process was issued, including a document required by these rules to be served on a person
Expiration of Limitation Period including a partner who was outside Queensland at the time, is taken to have personally, may, unless the court otherwise orders, be served under part 4
The court has the power to renew the originating process even if the limitation been served r114(2) UCPR OR (2) However, a document required by these rules to be served on a person
period has expired, but it is a factor that the court will take into account in the (b) on a person at the principal place of business of the partnership in personally must not be served under rule 112(1)(b), (c), (d), (e) or (g)
exercise of its discretion Krawszyk . Queensland who appears to have control or management of the business there; GO TO ORDINARY SERVICE BELOW r112 UCPR.
OR SERVICE AFTER ORIGINATING PROCESS
[2] ATTEMPT AT SERVICE (c) for a partnership registered under the Partnership (Limited Liability) Act Service of (document/interlocutory app/reply/answer/etc) can be done via
Here the claim (or other originating process) has not been served within 12 1988 at the registered office of the partnership. ordinary service as set out in
month of the date of filing in the registry, therefore it is said to be stale r 24 ORDINARY SERVICE R112 UCPR .
UCPR [4] YOUNG PEOPLE (a) leaving it with someone who is apparently an adult living at the relevant
A stale claim may still be may still be effective to commence proceedings even if Young person means an individual who is under 18 years Sch 5 address;
it is stale at the time of service r 22-24 UCPR Supreme Court Act QLD (b) if there is no-one at the relevant addressleaving it at the relevant address in
o BUT only where it is proper to renew the originating process: Gilles v Under r 108(1) UCPR, a document required to be served personally on a young a position where it is reasonably likely to come to the person's attention;
Dibbets person must be served instead on the person who is the young person's litigation (c) if the relevant address is within a building or area to which the person serving
o The irregularity in serving a stale original process is also waived if the guardian for the proceeding to which the document relates. the document has been denied accessleaving it at the building or area in a
defendant enters an unconditional notice of intention to defence: If no litigation guardian: position where it is reasonably likely to come to the person's attention;
Sheldon v Brown R 108(2) UCPR If the young person does not have a litigation guardian for the (d) posting it to the relevant address;
Def cannot refuse to accept service of stale claim proceeding the document must be served instead on (e) if the person has given
Brealey v Board of Management Royal Perth Hospital (1999) not open to the (a) the young person's parent or guardian; or (i) a fax number under these rulesfaxing the document to the
respondent in that case to refuse to accept service. The Respondent should have entered a (b) if there is no parent or guardianan adult who has the care of the person; or
conditional appearance and applied to have the Court set aside the service, a matter within young person or with whom the young person lives. (ii) an email address under these rulesemailing the document to the
the discretion of the Court. person;
[5] PERSON WITH IMPAIRED CAPACITY (mentally ill) (f) if the solicitor for the person has
THEORY means a person who is not capable of making the decisions required of a litigant (i) an exchange box at a document exchangeleaving the document
Definition of Service: The procedure by which a plaintiff informs a defendant of for conducting proceedings or who is deemed by an Act to be incapable of in the exchange box or another exchange box available for documents
the claim being made against him or her. conducting proceedings. Sch 5 Supreme Court Act to be transferred to the solicitor's exchange box; (taken to have
Objective of Service : Under r 109 UCPR a document required to be served personally on a person been served on the business day after it is left in the document
Natural Justice: Bring a claim to the notice of the defendant(s) with impaired capacity (the impaired person) must be served instead on exchange box r 112(2))
Notify the defendant(s) how to respond. (a) the person who is the impaired person's litigation guardian for the (ii) a faxfaxing the document to the solicitor; or
Relevance of Service re Originating Proceedings: Jurisdiction of the court is proceeding to which the document relates; or (iii) an email addressemailing the document to the solicitor;
founded upon the service of the originating process Laurie v Carroll (b) if there is no-one under paragraph (a)a person who is entitled (g) an electronic means prescribed by practice direction.
under rule 94(2) to be the impaired person's litigation guardian for the
SERVICE OF ORIGINATING PROCESS proceeding to which the document relates; or RELEVANT ADDRESS for Ordinary Service r112(3) UCPR
As the (claim/application) is an originating process, it must be served (c) if there is no-one under paragraph (a) or (b)an adult who has the relevant address, of a person to be served, means
personally on (insert def). R 105 UCPR AS DEFENDANT IS A.. care of the impaired person. (a) the person's address for service; or
(b) for an individual who does not have an address for service
[1] NORMAL PERSONS (also some special people) [6] PRISONERS (i) the individual's last known place of business or residence; or
 (ii) if the individual is suing or being sued in the name of a partnership - The court may make an order under this rule even though the person to be (i) all or part of which was suffered in Queensland; and
the principal or last known place of business of the partnership; or served is not in Queensland or was not in Queensland when the proceeding (ii) caused by a tortious act or omission (wherever happening);
(d) for a corporation that does not have an address for serviceits head started. (n) a proceeding for a contribution or indemnity for a liability enforceable in the
office or its principal or registered office. Miscamble v. Phillips , the Court said at p. 274 that the primary object of court;
SERVICE & SOLICITORS substituted service is: (o) a proceeding for an injunction ordering a defendant or respondent to do, or
A solicitor may accept service of a document for a party rule 115 UCPR By....... to bring to the knowledge of the person in respect of whom substituted service is refrain from doing, anything in Queensland (whether or not damages are also
The solicitor must make a note on a copy of the document to the effect sought, the whole proceeding so that he can take steps as he thinks proper to claimed);
that the solicitor accepts service for the party. protect his interests and rights. It is not proper to substitute service of (p) a proceeding properly brought in Queensland against a person in which
The document is taken to have been served on the party, unless the party process...when there is no belief that the service will bring the proceedings to the another person outside Queensland is a necessary or proper party to the
proves the solicitor did not have authority to accept service for the party. knowledge of a person or of any person representing his interests. proceeding;
This rule applies whether or not personal service of the document is (r) a proceeding in which a person has submitted to the jurisdiction of the court;
required under these rules. MAIN TEST FROM Porter v. Freudenberg (s) a proceeding in which the subject matter of the proceeding, so far as it
In order that substituted service may be permitted, it must be clearly shown that concerns the person, is property in Queensland;
INFORMAL SERVICE the plaintiff is in fact unable to effect personal service and that the writ is likely to (w) a proceeding about a person under a legal incapacity who is domiciled or
R 117 Informal service reach the defendant or to come to his knowledge if the method of substituted present in, or a resident of, Queensland;
[a] If document is not served as required but doc came into the possession of the service which is asked for by the plaintiff is adopted. (2) Each paragraph of subrule (1) is a separate ground for deciding whether an
person to be served; AND originating process may be served outside Australia under this rule.
[b] the court is satisfied on evidence before it that the document came into the QUESTION - what might work? (3) Also, this rule does not limit or extend the jurisdiction a court has apart from
persons possession on or before a particular day; advertising - how can you satisfy a judge that the individual defendant will this rule.
THEN: the court may, by order, decide that the possession of the document is read the ad?
service for these rules on the day it came into the persons possession or another service on the lawyer - how can you satisfy judge that defendant will SPECIAL SERVICE RULES
day stated in the order. contact lawyer?
service on relative Rule 101 No Service on Good Friday or Christmas Day
SERVICE IN A DIFFERENT STATE leave at place of work
SERVICE AND EXECUTION OF PROCESS ACT 1992 (CTH) leave at home Rule 103 Service after 4pm deemed to occur on the next business day
Housekeeping of SEPA other?
s 13: Applies to civil proceedings The order (for substituted service) should be obtained before resorting to irregular
s 15: (1) An initiating process issued in a State may be served in another State. service, but ratification of the irregular service is possible after the event.
(State is defined to include Territories: s 5)
OVERSEAS SERVICE OF ORGINATING PROCESS
Service the SEPA R 124
s15(2) Service must be effected in the same way as service of such an initiating (1) An originating process for any of the following may be served on a person
process in the place of issue. outside Australia without the court's leave
[1] Company s15(3) as per s 9 of the SEPA (a) a proceeding based on a cause of action arising in Queensland;
[2] Body Corporate s15(4) as per s 10 of the SEPA (b) a proceeding about
[3] On a Body Politic (i) property situated in Queensland; or
(eg the Commonwealth or a State)s15(4) must be effected in the same way in (ii) obtaining evidence for a future claim relating to property in Queensland;
which process of the Supreme Court of the State in which service is to be (c) a proceeding in which an Act, deed, will, contract, obligation or
effected may be served on a body politic. liability affecting property in Queensland is sought to be interpreted,
Formalities - SEPA rectified, set aside or enforced;
s 16: need prescribed noticed attached to process served. Regulation 4 (g) a proceeding relating to a contract
-prescribed notice is Form 1 (i) made in Queensland; or
s 17: time for appearance - longer of 21 days or time allowed by issuing court (ie (ii) made by 1 or more parties carrying on business or residing in Queensland; or
28 days) (iii) made by or through an agent carrying on business or residing in Queensland
on behalf of a principal carrying on business or residing outside Queensland; or
SUBSTITUTED SERVICE (iv) governed by the law of Queensland;
If a plaintiff cannot effect prompt personal service s/he may apply for substituted (h) a proceeding based on a breach of contract committed in
service: UCPR r 116. Queensland, regardless of where the contract was made and whether or
- normal service must be impracticable not the breach was preceded or accompanied by a breach (wherever
- The court may specify the steps to be taken, instead of service, for bringing the occurring), rendering impossible the performance of a part of the contract
document to the attention of the person to be served. that ought to be performed in Queensland;
- can also specify that the document is to be taken to have been served on the (i) a proceeding based on a contract containing a condition by which
happening of a specified event or at the end of a specified time. the parties agree to submit to the jurisdiction of the court;
(k) a proceeding based on a tort committed in Queensland;
(l) a proceeding for damage
 7. NOTICE OF INTENTION TO DEFEND
(Insert defendants name) has 3 options now that he has been served with the
originating process:
1. Do nothing (in which case a default judgment may be entered)
2. Enter an unconditional NITD, including that the action is to be defended
& providing an address for service of all future documents
3. Enter a conditional appearance
[1] CONDITIONAL NOTICE OF INTENTION TO DEFEND
Theory: A conditional notice to defend provides a method of approaching the
Court while preserving rights while protecting against a default judgment.
Write: Here (def) would enter a conditional notice of intention to defend under -
form 7 on the basis of objecting to the irregularity of (insert irregularity) OR
objecting to courts jurisdiction, (insert Ct).
However (def) will be bound by the Cts decision if it determines it has jurisdiction
(has power to waive irregularities in service).
[2] UNCONDITIONAL NOTICE OF INTENTION TO DEFEND
Write: If (def) enter an unconditional NITF under form 6, (def) waives any
irregularity in claim and indeed amounts to a submission to the jurisdiction of the
Court.
- P does not need to prove service (makes good service of stale claim)
TIMING TO FILE NITD
[1] If claimed served within QLD
(DEF) wishes to file a NOITD he must do so within 28 days of service of
originating process r137(1) UCPR
[2] If claimed served interstate
r123 UCPR must be served in accordance with the Service and Execution of
Process Act 1992 (Cwlth).
Section 17 of SEPA states that (def) has (insert whichever is the longer of) to
file their NITD:
21 days; or
The period which would have been permitted if the process had been
served in the place of issue (28 days for Qld), or
Such shorter period as the court of issue, on application allows.
[3] If claim served outside Australia r124-129 UCPR
r124 UCPR : Lists all circs where you can w/o leave service outside Aus
For example:
- a proceeding based on a cause of action arising in Queensland;
- a proceeding relating to a contractmade in QLD; or made by 1 or more
parties carrying on business or residing in QLD; or governed by the law of
Queensland;
- a proceeding based on a tort committed in Queensland.
R 125 UCPR relates to serving Counter claim or third party notice (applies Note
all the same circs as per r 124
R 126 UCPR Setting aside service The court must, on application by a
defendant or respondent, set aside service of an originating process under this
part if service of it is not authorised under rule 124.
R 127 UCPR Service of other process by leave The court may, by leave,
allow service outside Australia of an originating process for a proceeding under
an Act if service is not authorised under rule 124;
R 128 UCPR Requirement for Order for service outside Australia
- the court may give directions as to the time for filing a notice of intention to - On application by a person seeking to enforce an order against
defend or for attendance before the court or otherwise. partners in the partnership name, the court may give leave for the
- a copy of the order; each affidavit made in support of application for order; & order to
unless Ct otherwise orders, an exhibit mentioned in affidavit.
R 129 UCPR How service outside Australia to be performed [5] Third Parties
- parts 1 to 5 of UCPR apply to the service. A third party is required to file NITD (r 197 UCPR )
- However, nothing in these rules, or in any order of the
court made under these rules, authorises or requires the doing of anything in a [6] Parties added/ substituted as def
country in which service is to be effected that is contrary to the law of the country. required to file NITD (r 207 UCPR )
LATE FILING?
Write : If (def) files his NITD late, (Plaintiff) may seek default judgment [7] Business Name
H/e A defendant may file and serve a NOITD at any time before judgment NITD must be done in individual name, not business name r 91 UCPR
even if the def is in default of r 137 UCPR r138 UCPR
FILING & SERVING NITD
FORMAL REQUIREMENTS FOR NITD Filing: A NITD must be filed in the registry from which the claim was issued r
- Be in the approved form (signed and dated) r 139 UCPR 141 UCPR
- Must have the defendants defence attached to it r 139 UCPR Service: A sealed copy of the NOITD must be served at the plaintiffs address for
UNLESS it is a conditional NOITD r 144 UCPR service: r 142 UCPR
- the defendants address for service (& that of the defendants solicitor (a) on the day which it is filed; or
must be given) r 140 UCPR (b) as soon as practicable after it is filed
- Ordinary service will suffice r 142 UCPR (hand, post, fax, DX, e-mail)
WHO CAN ENTER NITD?
[1] Normal defendant
- only a def may enter NITD (either in person or through a solicitor)
r 136(1) UCPR
- in addition, by any person allowed by special leave of the judge
[2] Def = infant or person under disability
As (def) requires a litigation guardian r 93(1) UCPR , the def can only file a
NITD via their litigation guardian r 136(2) UCPR
And has not filed a NOITD, (plaintiff) may not continue proceedings unless
a person is made lit guardian of def r 96 UCPR
[3] Corporations
A corporation enter a NITD through its solicitors, unless it obtains leave of the
Court: rr 135, 136 UCPR
[4] Partnership
A partner must appear individually in her/his own name in the NITD QLD r 85
UCPR
NITD: R 85 UCPR
(1) Despite an originating process being against a partnership, a notice of
intention to defend must not be filed in a partnership name.
(2) A partner who is served with an originating process against a partnership may
file a notice of intention to defend only in the partner's own name.
See rule 114 (Service in relation to a partnership).
(3) However, the proceeding continues in the name of the partnership.
Defence: r87 UCPR
Except for a person who files a conditional notice of intention to defend under rule
86, a person may file a defence for the partnership in the partnership name only.
Enforcement: r88(1) UCPR
 8. Protocol after NITD is served
[1] PLAINTIFFS RESPONSE TO NITD - REPLY
- (Plaintiff) should respond to allegations made by a def via a reply
- Unless the Court orders otherwise, any reply must be filed & served within 14
days after the day of the service of the defence r 164(2) UCPR
[2] COUNTERCLAIM BY DEF
(Def) may also commence a counterclaim in relation to a cause of action arising
after the issue of the claim.
The CC is treated as an action in its own right and if plaintiff discontinues their
proceedings, then CC remains on foot and can proceed to trial. r 176 UCPR
[1] Counterclaim against the plaintiff r177 UCPR
This is in line with r 5 of UCPR as it facilitates the joint trial of two claims & to
enable the Court to pronounce a final judgment in the same action on both claim
& counter claim. (Ordinary service)
[2] Counterclaim against someone who is not the plaintiff R 178(1) UCPR
AKA 3 RD PARTY COUNTERCLAIM
THIRD PARTY IS LIABLE WITH THEPLANITIFF SUING PERSON YOU
BOUGHT FROM + THE MANUFACTURER)
TO BRING A CC AGAINST A NON PARTY, YOU MUST ALSO MAKE THE P A
PARTY TO THE CLAIM
(Def) 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) def alleges that the other person is liable with the plaintiff for the subject
matter of the counterclaim; or
(ii) def claims against the other person relief relating to or connected with the
original subject matter of the proceeding.
Service: Personal service (on a person not already a party) R 178 (2) UCPR &
Chap 4, r105 UCPR
NOTE: Courts discretion: The court may, at any time, exclude a CC from the
proceeding in which the counterclaim is made and give the directions the court
considers appropriate about the conduct of the counterclaim (eg if inconvenient)
r 182 UCPR
FORM OF CC
A counterclaim must: r179 UCPR
- be in the approved form and;
- must be included in the same document and served within the same
time as the defence
ANSWER TO COUNTERCLAIM BY ORIGINAL PLAINTIFF OR OTHER
DEFENDANT TO A COUNTERCLAIM
A defendant to a counterclaim (original plaintiff & possibly someone else) may
plead to the counterclaim by serving an answer to the counterclaim under these
rules. R 180 UCPR
-An Answer must be filed and served (a) within 14 days after the day the
counterclaim is served; or (b) if the defendant to the counterclaim is not a party to
the original proceeding, 28 days after the day the counterclaim is served r 164
UCPR
-If the plaintiff fails to serve an Answer, a default judgment may be entered.
REPLY ANSWER CC
- A def may reply to an answer
- Any reply must be filed & served with 14 days after the day of the service of the
answer to CC r164 UCPR
[3] THIRD PARTY NOTICE TERMINOLOGY
DEFENDANT WANTS TO BLAME SOMEONE ELSE Sch 4:
Plaintiff defined to include a defendant who serves a counterclaim
Theory : Being able to join TPs is consistent with r 5 UCPR, as it allows all issues Defendant defined to include a plaintiff who is served with a
between all parties to be thrashed out in the same proceedings. counterclaim.
Write: A TPN is a procedural device whereby a defendant can join in the action Distinguish counterclaims from Third Party Notices. (TPN, read rr 191-207)
any person against whom the defendant claims relief related to the plaintiffs
claim. [4] INTERLOCUTORY APPLICATION
USE WHEN: (Def) may file a third party notice if (def) wants to: r192 UCPR An application in a proceeding that has commenced is known as an interlocutory
(a) claim against a 3rd party re contribution or indemnity; or application and may be brought in any proceeding under a form 9 r31(2) UCPR
(b) claim against 3rd party relief provided it is signed and filed r31(1) UCPR , and generally is supported by
(i) relating to or connected with the original subject matter of the proceeding; affidavits under form 46.
and
(ii) substantially the same as some relief claimed by the plaintiff; or FORMALITIES - ANY DRAFTING Q RE INTERLOCTORY APP
(c) necessary to join TP to answer any Q relating to original subject [1] must be in Form 9: r31(2) UCPR
matter [2] Must name as respondent any party whose interests may be affected by the
(d) granting of the relief sought r31(3) UCPR
FORMALITIES (IF ISSUE GO TO RR191-207) [3] must be filed & served at least two business days before the day set for
CONTENT OF THIRD PARTY NOTICE hearing the application r31(5) UCPR
R 193 UCPR
- must be in the approved form (form 14) CAN BE AN ORAL APPLICATION
- state briefly the nature of the claim made or relief sought against the third party; You may apply to the Court for an order at any time without the need for filing &
and serving documents by making an oral application R 32(1)(a) UCPR.
- attach a statement of claim to the notice, unless the court otherwise orders. H/E Ct may impose conditions required in the interests of justice to prevent
prejudice to the other parties.
FILING THIRD PARTY NOTICE No requirement oral app. must be followed by a written application in the
R 194 UCPR same form & given to other party, but Ct could follow up & ask why you
Unless court gives leave havent
- TP notice may not be filed by a def until def has filed a defence; and
- TP notice must be filed within 28 days the prescribed period
-An application for leave to file a third party notice must be served on the plaintiff.
CONSEQUENCES OF 3 RD PARTY NOTICE
- The relationship between a defendant who issues a TPN and the TP is that of
plaintiff and defendant.
- TP should enter an appearance (NITD/defence) or may suffer default judgment,
r 197 UCPR .
- 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.
- A third party may counterclaim against the defendant r 200 UCPR
- A third party may join a fourth party, and so on.
- A third party may join a fourth party, an so on.
- Remember, if there is a counterclaim, a plaintiff in the original action becomes a
defendant may in turn issue a TPN against another.
[4] CLOSE OF PLEADINGS
Pleadings close after the last pleading has been delivered r 169 UCPR
- The pleadings in a proceeding close (a) if a pleading is served after
the defence or answer to a counterclaim on service of the pleading;
or (b) otherwise 14 days after service of the defence. If no reply is
delivered
 9. DEFAULT JUDGMENT
WHAT IT APPLIES TO
[1] Def/respondent not responding to claim/application
If (def) has failed to file a NITD (usually within 28 days), (plaintiff) may seek
default judgment r 281 with a form 25, accompanied by draft judgment under
form 26.
(Def) can still put in a NITD, and if this happens before (plaintiff) has applied
for a default judgment, the (plaintiff) cannot afterwards apply for default
judgment r 281 with a form 25, accompanied by draft judgment under form 26.
[2] Plaintiff fails to provide answer to counter claim
If a (plaintiff) fails to defend a counterclaim with an Answer (usually within 14
days), a default judgment may be entered against the (plaintiff) r 281
APPLIES: if plaintiff's claims for relief against def in default include 2 or more of
the claims for relief mentioned in rules 283 to 286 , and no other claim.
THEN: plaintiff is entitled to a judgment against def on all or any of the claims for
relief the plaintiff could request under those rules if that were the plaintiff's only
claim for relief against the defendant.
COSTS ONLY DEFAULT JUDGMENT
R 289
APPLIES WHERE: plaintiff is entitled to judgment against a defendant in default
and the defendant satisfies the plaintiff's claim for relief.
THEN: plaintiff may file a request for a judgment against the defendant for costs
alone.
AND: court, as constituted by a registrar, may give judgment.

STEPS TO SATISFY SETTING ASIDE DEFAULT JUDGMENT

STEP [1] Rule 290: The court may set aside or amend a judgment by default
Prove that defendant was served with originating process r 282 which can be Defendant must:
done through affidavits (form 46 ) - Give a satisfactory explanation for the failure to appear
- Establish no unreasonable delay in making the application
DJ you can claim for Debt and interest - Demonstrate that s/he has a prima facie defence on the merits.
Cook v D A Manufacturing = Courts discretion is wide & unfettered.
[a] Debt or liquidated demand - rule 283 IF SUCCESSFUL IN SETTING ASIDE:
As a debt is owing (liquidated demand) The plaintiff may file a request for Def will be ordered to:
judgment for that amount AND 1. File and serve a defence within a stipulated time
[a] Interest 2. Pay costs.
May abandon interest - Defendant usually ordered to pay the plaintiff's costs on obtaining
claim an agreed rate where one is agreed. (eg loan). rule 283(4)(a) the default judgment and plaintiffs costs on the application to set
accept a rate not higher than that set in the PD (obtainable from the aside.
Registrar); rule 283 2(a) & 4(b)
- for the purposes of s 58 of the Civil Proceedings Act 2011, interest
at the rate specified in the claim or in PD 7 of 2013. rule 283(4)(a)
High Interest?
If (plaintiff) wishes to ask the Court for higher interest rate and must provide
evidence to justify this, however this may take the claim outside may take the
main claim into the unliquidated category. R 283(2)
[b] Costs: for issuing claim, for obtaining judgment, for any other fees and
payments, to the extent they have been reasonably incurred and paid. rule
283(2)(b)
[c] Applicable if part of debt has been paid : WHERE part payment has been
made, need affidavit of debt to set out what was paid and what is now owing

Damages that need to be quantified

[b] Unliquidated Damages - rule 284
As the (plaintiff) must apply to the Court here for an assessment of damages
regarding the (BOK or NEG) , the damages are for an unliquidated sum and are
governed by rule 284.

Accordingly (plaintiff) may file a request for a judgment conditional on the

assessment of damages by the court under chapter 13, part 8 (rr 507-512)
and for costs and the court, as constituted by a registrar, may give judgment
SC: Where is step 2?
[3] COMBINATION - RULE 287
r 287
 10. OTHER APPLICATIONS
[1] SUMMARY JUDGMENT
SJ FOR P AGAINST DEFENDANT
An interlocutory application may be brought here under a form 9 r31(2),
supported by affidavits under form 46. Here we would be making an application
for summary judgment against (defendant).
Even though (def) has filed a NITD, under r 292 the court may give judgment for
(plaintiff) (& therefore of course against the defendant) here if it is satisfied that
2(a) the defendant has no real prospect of successfully defending all or a part of
the plaintiff's claim; and
2(b) there is no need for a trial of the claim or the part of the claim.
Here Apply
THE DEFENDANTS CASE IS GARBAGE. WASTE THE COURTS TIME.
NO BASIS
SJ FOR D AGAINST PLAINTIFF
An interlocutory application may be brought here under a form 9 r31(2) ,
supported by affidavits under form 46. Here we would be making an application
for summary judgment against (plaintiff). It must be served on the respondent 2
business days before date set for hearing.
Under r 293, here (def) could (after filing NITD) apply to the court for judgment
against (plaintiff). The court may give judgment for the defendant against the
plaintiff If the court is satisfied r 293(2) :
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's
claim; and
(b) there is no need for a trial of the claim or the part of the claim.
THE PLAINTIFF HAS A WEAK CASE, INTEREST OF JUSTICE, DONT
WASTE COURT TIME
[2] DISMISSING CLAIM
An interlocutory application may be brought here under a form 9 r31(2) ,
supported by affidavits under form 46. HERE we are seeking an application to
dismiss a claim under r 280. It must be served on the respondent 2 business
days before date set for hearing
APPLIES: If plaintiff / applicant defaults in taking a required step, defendant /
respondent may apply to the court for an order dismissing the proceeding for
want of prosecution R 280 (1)
THEN:
- court may dismiss proceeding R 280 (2)
- order dismissing proceeding may be set aside only on appeal or by
agreement R 280 (3)
- court may set aside or vary order made in absence of the
Plaintiff/applicant R 280 (4)
[3] PROCEDURAL APPLICATIONS
An interlocutory application may be brought here under a form 9 r31(2),
supported by affidavits under form 46. Here we would be making an application
to APPLY
JOIN/SEVER PARTIES /COAS
Rule 68 UCPR: if the inclusion of a party or cause 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 already been claimed in the proceeding by the party applying for
a trial in which the party has no interest; or leave to make the amendment.
(c) stay the proceeding against a defendant or respondent until the trial between We may be able to amend the claim. 375 Power to amend; 376
the other parties is decided, on condition that the defendant or respondent Amendment after limitation period
against whom the proceeding is stayed is bound by the findings of fact in the trial 376(4) allowed to amend claim but have to be within time We need
against the other defendant; or (d) make another order appropriate in the permission from the court to amend a claim (R 375(2) ).
circumstances. For the court to allow an amendment when we are out of time, there has to
be good reason. (R 376(4)(a) ).
ADD, SUBSTITUTE OR REMOVE PARTIES The court has to use their discretion to operate and exercise their choice.
An interlocutory application may be brought here under a form 9 r31(2), R 376(4)(b) Can only amend a claim for bringing new COA that arises on
supported by affidavits under form 46. the same or substantially the same facts. You have to satisfy both of these
[1] REMOVING A PARTY r 69(1) UCPR limbs but if you satisfy one the other one follows we have a better
The court may at any stage of a proceeding order that a person who has been argument under limb b here. However, a defendant would not want to
improperly or unnecessarily included as a party, or who has ceased to be an have the claim amended because of principles and policies like flood gates;
appropriate or necessary party, be removed from the proceeding costs; and delays. You have had three years to bring an action.
Prejudicial argument here (as a defendant). They built their own case on
[2] INCLUDING A PARTY r 69(1) UCPR property damage. Now, we are in a prejudicial position because not only
The court may at any stage of a proceeding order are we out of time, but we also have to look into a whole new case (ie.
That a person may be included as a party IF negligence).
Their presence before Court is necessary to enable the court to For an action against the solicitor we could bring an action in negligence.
adjudicate effectually and completely on all matters in dispute in the If we are not successful under R 376 (likely because we are out of time).
proceeding; Here, we have a fresh cause of action and time would start to run from the
Their presence before the court would be desirable, just and convenient date they made the mistake (ie. recently).
to enable the court to adjudicate effectually and completely on all matters
in dispute connected with the proceeding.
AMENDING PLEADINGS
An interlocutory application may be brought here under a form 9 r31(2),
supported by affidavits under form 46.
R 375 states that any stage of a proceeding, the court may allow or direct a
party to amend a claim a pleading, an application or any other document in
the way and on the conditions the court considers appropriate. Here what must
be amended is
Generally, the party seeking amendment must satisfy the court that its
opponent will not suffer prejudice by reason of the amendment which
cannot be remedied by an adjournment, an award of costs or in some
other way.
IF MISNOMER:
If there is misnomer of a party, the court must allow or direct the amendments
necessary to correct the misnomer. R 375(3) even where the effect of the
amendment is to add a new party.
Consequence: The amendment operates retrospectively to the date of
commencement of proceedings (to overcome any difficulties created by any
limitation period). R 376
UCPR r 74(5 ): for a limitation period, a proceeding by or against a new
party (whether by addition or substitution) is taken to have started when
the original proceeding started, unless the court orders otherwise.
ADDING A CAUSE OF ACTION;
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 are meet.
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or
substantially the same facts as a cause of action for which relief has
 11. DISCLOSURE
ISSUE: What documents need to be disclosed?
LIST:
PARTY DISCLOSURE
STEP [1]: APPLICATION
WHEN DISCLOSURE APPLIES
R 209 states that the UCPR rules relating to disclosure apply to
a proceeding started by claim;
a proceeding in which the court has made an order under rule 14 ordering
the proceeding to continue as if started by claim
if the court directsa proceeding started by application.
Applies to all parties including a party who is a young person and a
litigation guardian of a young person. R209(2)
STEP [2]: DEFINITION
R 210 states that disclosure means the delivery or production of documents in
accordance with this part.
STEP [3]: IS THE DOCUMENT WHICH PRIMA FACIE MUST BE
DISCLOSED?
DUTY OF DISCLOSURE
R 211(1) party to a proceedings has duty to disclose to other parties
documents
in possession or under control of first party and
directly relevant to allegation in issue (an allegation remains in issue
until it is admitted, withdrawn, struck out or otherwise disposed of).
Duty continues until the proceeding is decided.
STEP [4]: DOES AN EXCEPTION TO DUTY TO DISCLOSE EXIST?
R 212 (1) The duty of disclosure does not apply to the following documents:
(a) a document in relation to which there is a valid claim to privilege from
disclosure;
(b) a document relevant only to credit;
(c) an additional copy of a document already disclosed, if it is reasonable to
suppose it contains no change/difference likely to affect the outcome of the
proceeding.
(2) expert reports NOT privileged
IS IT UNDER A PRIVILEGE?
Here these documents could be protected under the [insert privilege]
A - LEGAL PROFESSIONAL PRIVILEGE
This CL privilege protects communications between lawyers and clients made:
1. for the dominant purpose of seeking or providing legal advice
2. communications made for the dominant purpose of use in, or in
relation to, existing or reasonably anticipated legal proceedings.
Includes communications in documents and conversations and
written reports
Consequence: Lawyers are not required to, nor must they disclose information
that falls within these categories.
Exceptions to LPP: What priv does not cover
[1] Does NOT include physical evidence
The bloody knife, smoking gun,
The stolen item etc
Trust account ledgers in law firm not protected Packer
[2] Client can waive the privilege
[3] Public Policy Exceptions (eg whereabouts of a child: Re Bell; ex parte
Lees )
Exception to LPP: Statutory abrogation of the rule:
[4] UCPR r 212(2) Expert reports are not privileged from disclosure.
[5] UCPR rr 547-552 statement of loss and damage and expert info in PI
cases.
B. 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 P/L (1993)
WITHOUT PREJUDICE
Courts should not know that they have tried to settle before
Communications for settlement not to be disclosed except on Q of
costs in litigation Field v Com for Railways for NSW
Marking communication without prejudice not necessary, nor sufficient. R 226(1) Solicitor must give court at trial signed certificate
Depends on whether the communication is part of settlement negotiation.
CONCLUDE ON PRIV
However, even if [priv claimant] claims privilege, [insert other partys name] may
challenge, and if they do so [insert party claiming priv], [privilege claimant] must
within 7 days file and serve affidavit stating the claim: affidavit must be made by
individual who knows the facts giving rise to the claim.
EXPERT REPORTS
Under the common law communications from an expert to a lawyer were
generally privileged. However now r 212(2) abrogates that rule and says that
expert reports are not privileged.
However: 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.
PI & fatal injury cases & Expert Reports
In PI and fatal injury claims, all expert reports must be disclosed,
even if you do not intend to reply 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).
Def is under a similar obligation, to deliver a statement of expert and
economic evidence, see R 550.
TRIAL WITH EXPERTS
[1] Rule 426 : expert has a duty to assist the court
[2] Rule 427 : generally expert evidence in chief must be given by report unless
(can be given orally)
in response to the report of another expert; or
if directed to issues that first emerged in the course of the
trial; or
if the court gives leave
[3] Report will be allowed in if disclosure has been made in the
appropriate time frame to other party R 429 / r 427(2)
[4] Report will only be allowed in as chief if expert can be called in for
cross examination R 427 (3)
[5] Report will be allowed in if the report complies with r 428
addressed to the court and signed by the expert
the expert's qualifications;
all material facts, whether written or oral, on which the report is based;
etc
RECENT REFORMS RE EXPERTS
Measures to encourage:
Joint appointment of expert, to be the only expert to give evidence on
that issue (unless the court otherwise ordered). See r 429A
Costs sanctions may follow where multiple experts are needlessly
retained in relation to an issue (see r 429D ).
Court may order experts confer and prepare document setting out
areas of agreement and disagreement and reasons.
STEP [5]: HAS THE SOLICITOR COMPLIED WITH HIS DUTY?
a) stating duty of disclosure has been fully explained to client and
b) if party is corporation, identifying individual to whom duty explained
(2) certificate must be prepared and signed at or immediately before trial.
STEP [6]: IF DOCUMENTS MUST BE DISCLOSED HOW IS THIS DONE?
R 214(1) disclosure is effected by
a) delivering a list of the documents to which the duty relates and also those for
which privilege is claimed, and
b) As requested, delivering copies of the documents listed (except privileged
ones)
R 215 party may require production of the originals for inspection.
If inconvenient:
R 216 if inconvenient to deliver/produce (as required under r 214/215 ),
disclosure can be effected by producing for inspection and notifying in writing
convenient time and place for inspection
Procedure for producing them
R 217 , where documents are disclosed by producing them,
documents must be contained together and arranged and identified -
accessible and convenient
producer must provide
facilities for inspection and copying
person to explain
list of privileged documents
TIME TO DELIVER DOCS
R 214(2)(e) within 28 days of close of pleadings
DAMAGES
Rule 221: A party may disclose to another party a document relating only to
damages only if the other party asks for its disclosure.
 be in approved form
STEP [7]: COURT INVOLVEMENT be served like claim, within 3 months of issue
RELIEF FROM DISCLOSURE the applicant may serve the respondent only after the applicant has
R 224 The court may order a party be relieved, or relieved to a specified extent, served all other persons who are required to be served under rule 244
of the duty of disclosure. (serve first the owner of document or person about whom info sought,
Court will take into account: unless they are likely to fabricate evidence or perpetrate a fraud).
(a) the likely time, cost and inconvenience involved in disclosing the
documents or classes of documents compared with the amount CONFIDENTIALITY
involved in the proceeding; Material obtained by compulsory disclosure process may only be used for the
(b) the relative importance of the question to which the documents or purpose of the litigation.
classes of documents relate; Distillers Company (Bio-chemicals) Ltd v Times Newspapers Ltd
(c) the probable effect on the outcome of the proceeding of disclosing [1974] 3 WLR 728 - discovered documents were made available to
or not disclosing the documents or classes of documents; newspaper. Court restrained publication - which was an abuse of the
(d) other relevant considerations. process of the court.
Home Office v Harman [1981] 2 WLR 310 solicitor held guilty of
ORDER TO DISCLOSE contempt of court for making available to journalist documents obtained
DISCLOSURE BY ORDER on discovery.
R 223 (1) court may order disclosure, effected by delivering copies or Central Qld Cement Pty Ltd v Hardy [1989] 2 Qd R 509 misuses
producing for inspection of information provided in supplementary witness statements given to
R 223 (2) court may order party to file and serve affidavit stating that press injunction granted.
document never existed, or does not exist and when it ceased to exist or
passed out of possession or control SETTING IT DOWN FOR TRIAL - FORMALITIES
R 223 (5) court may inspect document Rule 466 date for trial may be set at callover, by judge,by registrar at judges
direction.
CONSEQUENCE OF NON-DISCLOSURE Rule 467 A proceeding started by claim cannot be set down for trial unless all
R 225(1) party who does not disclose the parties sign a request for trial date in the approved form (form 48).
must not tender or adduce evidence as to contents w/o leave Rule 469 - a party (X) ready for trial may prepare and sign request for trial
is liable to contempt for non-disclosure must serve copies on each other party
may suffer costs penalties if ready they sign and return
(2) other party may apply for party X must file copy(s) signed by all parties
order staying/dismissing proceedings A party is ready for trial if
judgment or other order all necessary steps are complete
order for disclosure all witnesses will be available, and
as far as party is concerned, proceeding is in all respects ready for
STEP [8] GETTING THE DOC PRODUCED AT TRIAL trial
R 227 (1) Documents disclosed must be produced at the trial if: etc
notice to produce them has been given with reasonable particularity;
and Form 48, Request for trial date
(b) their production is asked for at the trial. Must indicate (by ticking), mode of trial eg:
Any party elected trial by jury
NON PARTY DISCLOSURE No party has elected/now requires trial by jury
R 242 party may require non-party to disclose documents directly relevant to There is no right to trial by jury.
allegation in issue, in possession or control, which non-party could be required to Must certify that:
produce at trial. 1. Disclosure has been provided as required by the rules and any order
by notice of the court.
requiring production w/in 14 days. 2. Any order requiring particulars to be given has been complied with.
Not permitted if there is another reasonably simple and inexpensive way of 3. Answers to any interrogatories have been delivered.
proving matter 4. All necessary steps in the proceeding are complete.
Formalities of Notice 5. All necessary witnesses will be available
R 243 notice must
be issued in the same way as a claim
state allegation in issue
include certificate by solicitor that there is no other reasonably simple
inexpensive way of proving matter
 12. PLEADINGS R 150 UCPR the following matters must be specifically pleaded Particulars should be provided in pleadings: rule 160(1) UCPR unless
Definition : Pleadings are documents exchanged by the parties to litigation in (a) breach of contract or trust; inconvenient (then in a separate document mentioned in, and filed and served
which they set out the material facts which they allege and intend to prove at the (b) every type of damage claimed go to r 155 & 158 UCPR with, the pleading)
hearing of the action. r 155 UCPR: if damages are pleaded R 157 UCPR Particulars in pleading
Objective : define the matters in issue & to inform the parties and the court of the - the pleading must state the nature and amount of the damages A party must include in a pleading particulars necessary to
matters in issue. claimed. (a) define the issues for, and prevent surprise at, the trial; and
OVERVIEW OF PLEADINGS - Must include the following particulars: the nature of the loss or (b) enable the opposite party to plead; and
[1] First pleading is the plaintiffs statement of claim which must disclose the damage suffered; the exact circumstances in which the loss or (c) support a matter specifically pleaded under rule 150 .
elements of the plaintiffs cause of action against the defendant. damage was suffered; the basis on which the amount claimed has
[2] The defendants answer to that claim is the defence. The defence might been worked out or estimated. WHAT TO DO IF YOU DO NOT HAVE SUFFICIENT PARTICULARS?
include a counterclaim or cross claim. - If practicable, the party must also plead each type of general
[3] The plaintiff must answer the defence with a reply and if the defence includes damages and state the nature of the damages claimed for each
a counterclaim, the plaintiff must answer a defence to that counterclaim. type
WHAT ARE THE FUNCTIONS OF PLEADINGS? - In addition, a party claiming damages must specifically plead any
- they enable the parties to define the essence of their dispute & so facilitate matter relating to the assessment of damages that, if not pleaded,
an orderly process, perhaps cumulating in a trial may take an opposing party by surprise.
- secondly, pleadings give each party notice of the relevant issues, therefore r 158 UCPR Particulars of damages
preventing surprise or ambush tactic & also satisfying in part the principle of - the pleading must contain particulars of the payment or liability.
due notice. - If a party claims exemplary or aggravated damages, the party's
- Thirdly, clear pleadings can prevent a party from inadvertently making a pleading must contain particulars of all matters relied on in support
false admission. of the claim.
- Pleadings set procedural parameters which enable other rules to be applied (c) defence under the Limitation of Actions Act 1974;
precisely; they offer guidance as to the scope of relevant material which (e) estoppel;
must be disclosed during the disclosure processpleading also determine (f) fraud;
the scope of any subsequent judgment; the doctrine of res judicata prevents (h) interest (including the rate of interest and method of calculation) claimed;
the matter being heard twice in two separate actions. (j) misrepresentation;
- Provide the court with vital information [as to allocating cases to case (l) negligence or contributory negligence;
management lists], or when determining any matters at an early stage of the (m) payment;
case management process (n) performance;
- Finally, pleadings enable the opposite party or the court acting on its own (t) want of capacity, including disorder or disability of mind;
initiative to declare the case bad in law or an abuse of process; there is no (x) anything else required by an approved form or practice direction to be
right to a day in court if the case is hopeless, improperly framed, otherwise specifically pleaded. [1] Ask the other side for further & better particulars
procedurally objectionable. R 160(2) UCPR More Particulars? Further particulars may be given by
RELEVANCE OF PLEADINGS AT TRIAL Debt or liquidated demand correspondence & r 160(3) A party giving further particulars must file a copy of
Binding at trial: The general rule is that relief is confined to that available on the the particulars.
pleadings as a basic requirement of procedural fairness. Banque Commerciale R 150 UCPR (3 ) If the plaintiff's claim is for a debt or liquidated demand only Keep file copies (will be used as exhibit to affidavit).
SA (with or without a claim for interest), the plaintiff must state the following details in [2] Apply to the Court for further & better particulars
- But Courts have tended to favour merits over procedure when considering the statement of claim
amendments - Queensland v JL Holdings P/L (1997 (a) particulars of the debt or liquidated demand; Getting better particulars
- But note Rigato Farms Pty Ltd v Ridolfi [2001] per de Jersey, CJ: Parties (b) if interest is claimedparticulars as required by rule 159; R 161 UCPR Application for order for particulars
do not have an inalienable right to a hearing of all issues on the merits. (c) the amount claimed for the costs of issuing the claim and attached (1) A party may apply to the court for an order for further and better particulars of
statement of claim; the opposite party's pleading.
CONTENT OF ALL PLEADINGS (d) a statement that the proceeding ends if the defendant pays the debt or (2) The court may, on an application under subrule (1), make the consequential
R 149 UCPR Each pleading must liquidated demand and interest and costs claimed before the time for filing orders and give the directions for the conduct of the proceeding the court
(a) be as brief as the nature of the case permits; and notice of intention to defend ends; considers appropriate.
(b) contain a statement of all the material facts on which the party relies but (e) a statement of the additional costs of obtaining judgment in default of
not the evidence by which the facts are to be proved; and notice of intention to defend. IF YOU HAVE SHITTY PARTICULARS?
The word material means necessary for the purpose of STRIKING OUT A PARTICULAR
formulating a complete cause of action. Pleading a conclusion of law (EG He was negligent) Apply r 162 UCPR Striking out particulars
Should not contain immaterial or unnecessary facts R 149 (2) UCPR in a pleading, a party may plead a conclusion of law or raise a if a particular
(c) state specifically any matter that if not stated specifically may take point of law if the party also pleads the material facts in support of the conclusion (a) has a tendency to prejudice or delay the fair trial of the proceeding; or
another party by surprise; and or point. (b) is unnecessary or scandalous; or
(d) state specifically any relief the party claims; and (c) is frivolous or vexatious; or
(e) if a claim or defence under an Act is relied onidentify the specific PARTICULARS (d) is otherwise an abuse of the process of the court.
provision under the Act.
 162(2) The court, at any stage of the proceeding, may strike out the particular
and order the costs of the application to be paid on the indemnity basis.
STRIKING OUT PLEADINGS
STRIKING OUT A PLEADING
r 171 UCPR Court may strike out pleadings if:
Discloses no reasonable cause of action/defence
Tendency to prejudice/delay fair trial
Unnecessary or scandalous
Frivolous or vexatious
Abuse of court process
FORM OF ALL PLEADINGS
R 146 UCPR Formal requirements
(1) A pleading must
(b) state the description of the pleading; and
(c) be filed and state the date on which it is filed; and
(d) be signed by the solicitor for the party filing it or, if the party
appears or defends in person, the party; and
(e) be consecutively numbered on each page; and
(f) be divided into consecutively numbered paragraphs and, if
necessary, subparagraphs, each containing, as far as practicable, a
separate allegation; and(g) if it is settled by counselstate the
counsel's name.
(2) In addition, a pleading (other than a reply) must have on it a notice to the party
on whom the pleading is served under rule 164 informing the party about the time
for serving pleadings in response under rule 164.
DRAFTING QUESTION (APPLY RULES ABOVE)
[1] STATEMENT OF CLAIM
-Identify the parties to the proposed action and how they are involved.
-Statement of claim must set out the material facts (but not evidence) relied on to
support the claim made must disclose a cause of action.
-Give particulars (no surprises for other party):
1. particulars of claim (allege material facts sufficient to establish each
element of the cause of action).
Eg negligence: material facts sufficient to establish a duty of care
owed by defendant, breach of that duty, causation, consequential
damage.
Include times, dates, place.
Include anything which must be specifically pleaded (r 150 (1))
2. particulars of negligence (must be specifically pleaded)
3. particulars of damage + interest (must be specifically pleaded).
-Provided the necessary elements of the cause of action are pleaded, the plaintiff
should not try to anticipate the defendants defence.
-Comply with procedural requirements (titles, forms etc) and jurisdictional
requirements (make sure you start in the right court).
Economic Loss from when suffered/when loss occurred
[2] DEFENCE - SPECIFIC CONTENT
(Def) must deal with every allegation made in (insert names) (insert
document)
R 165 UCPR states (def) has 4 options:
[1] Deny it (effect of a denial is to put the other party to proof of the allegations
denied).
[2] Non-admit it (operates in the same way as a denial. Used where allegation
being responded to is outside the knowledge of the defendant).
R 165 (2) UCPR A party who pleads a nonadmission may not give or call
evidence in relation to a fact not admitted, unless the evidence relates to another
part of the party's pleading.
R 166(3) of UCPR party may plead a non-admission only if the party has made
inquiries to find out whether the allegation is true or untrue; and the inquiries are
reasonable having regard to the time limited for filing & serving the defence or
other pleading in which the denial or non-admission is contained; and the party
remains uncertain to the truth or falsity of the allegation.
[3] Admit The effect of an admission is that the plaintiff is not required to prove
the allegation. If an uncontroversial allegation is not admitted, the plaintiff will be
required to prove it and the court may order that costs incurred in proving the
allegation be borne by the defendant r 167 UCPR.
[4] Plead another matter
Raise a point of law;
Make an inconsistent alternative plea eg deny the making of a contract
alleged by the pl, and also allege that if there is a contract it is
unenforceable because of the absence of writing (sale of land), or
Proceed to counterclaim eg for breach of contract.
[5] Ignore it
An allegation of fact made by a party in a pleading is taken to be admitted by an
opposite party required to plead to the pleading unless Rule 166 UCPR
UNLESS there is an implied non-admission under r 168 UCPR Every allegation
of fact made in the last pleading filed and served before the pleadings close is
taken to be the subject of a non-admission
Must also comply with r 150(4) UCPR
In a defence or a pleading after a defence, a party must specifically plead a
matter that
(a) the party alleges makes a claim or defence of the opposite party not
maintainable; or
(b) shows a transaction is void or voidable; or
(c) if not specifically pleaded might take the opposite parties by surprise; or
(d) raises a question of fact not arising out of a previous pleading.
FORM OF DEFENCE
The [first] defendant relies on the following facts in defence of the claim:
[1] [The defendant admits the allegations in paragraphs ...................... of the
statement of claim.]
[2] [The [first] defendant does not admit the allegation in paragraph ... of the
statement of claim. The [first] defendant has made reasonable inquiries and
remains uncertain of the truth or otherwise of the allegation and is unable to admit
it because ........ (give explanation). [The [first] defendant believes the allegation
cannot be admitted because (give explanation).]
[3] [The [first] defendant denies the allegation in paragraph ... of the statement of
claim because ... (give explanation).]
[4] (set out as briefly as the nature of the case permits the material facts on
which the defendant relies in accordance with the requirements of Chapter 6 of
the Uniform Civil Procedure Rules)
[3] REPLY
In Qld, if the plaintiff disputes allegations in the defence, the plaintiff must
serve a reply, otherwise there is an implied non-admission of the defence
allegations r 168 UCPR (Every allegation of fact made in the last
pleading filed and served before the pleadings close is taken to be the
subject of a non-admission)
Then, the plaintiff cannot give or call evidence in relation to the allegations
in the defence (r 165 ) (unless the evidence is relevant to another part of
the plaintiffs pleadings).
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).
You can only use a reply to meet the defence; it cannot be used to raise a
new cause of action (r 154 ).
Must also comply with r 150(4) UCPR.
In a defence or a pleading after a defence, a party must specifically plead a
matter that
(a) the party alleges makes a claim or defence of the opposite party not
maintainable; or
(b) shows a transaction is void or voidable; or
(c) if not specifically pleaded might take the opposite parties by surprise; or
(d) raises a question of fact not arising out of a previous pleading.
[4] COUNTERCLAIM
[1] R 179 : A counterclaim must be in the approved form and must be included in
the same document and served within the same time as the defence.
[2] Defendant generally follows the same pleading requirements as for a
statement of claim must reveal a cause of action by pleading necessary
material facts LOOK ABOVE!
[3] Except: no need for repetition: And by way of counterclaim the defendant
says as follows: 1) The defendant repeats and relies on the matters set out in
paragraphs 1, 2, 3 and 6 of his defence. Then allege additional facts relied on.
 APPENDIX PROBABLY WONT BE ON EXAM BUT JUST IN CASE
Duty to advise / consider ADR PROBLEM Q
Professional codes of conduct and rules of court impose an obligation on practitioners to
inform clients about alternatives to litigation.
Rules of court impose an obligation on court officials to consider appropriateness of
matters for ADR.
Costs orders against practitioners (CL) PROBLEM Q: BAD LAWYER
Courts have inherent jurisdiction to award costs against legal practitioners But now there
are more sources the Courts can rely on (eg SECT 5 UPCR (3))
SECT 5 UPCR (3) In a proceeding in a court, a party impliedly undertakes to the court
and to the other parties to proceed in an expeditious way.
Should only be invoked where there has been a serious dereliction of the practitioners
duty to the Court. A serious dereliction means Where practitioner unreasonably initiates
or continues those proceedings. This will occur where:
1. Hopeless case? Pursuit of a hopeless case or a case where a client has no or
substantially no prospect of success is NOT necessarily a breach of duty Lewick
Balancing of competing principles
a party is entitled to have a practitioner act for him or her even in an unmeritorious
case as public ought to be able to access system when they have genuine
complaint
BUT lawyers must not commence a proceeding without any, or any proper,
consideration of the question whether the proceeding has any prospect of success
at all Lewick
2. Ulterior purpose: Will be unreasonable where s/he has an ulterior purpose in
instituting the proceeding
Buy time for a client who is about to become bankrupt
Practitioners actions amounts to an abuse of process Lewick
White Industries v Flower & Hart (proceedings had been instituted to delay an
inevitable outcome (namely bankruptcy) & to achieve a breathing space. Plaintiffs
solicitors were ordered to pay the defendants costs on an indemnity basis) to pay the
defendants costs on an indemnity basis).
Considerations in determining unreasonably
Courts will consider whether the lawyer
Had sufficient knowledge of the case to justify pursuing it
Caused a letter before action to be written
Considered settlement
Had a proper grasp of the issues
Had turned his or her mind to the relevant law and facts
Had read the relevant authorities
Had advised the client that his or her success was very poor
Failure to accept a reasonable offer
At meditation/ADR
- Here [insert name] has made an offer (arguably a reasonable one), which [insert
name] has not accepted.
- The question is are there any consequences of [insert name] not accepting the offer.
- S 37(d)(ii) CPA states it is an object of ADR processes to safeguard the ADR
processes by ensuring they remain confidential and s 54(1) of CPA mirrors this
objective by stating that an ADR convenor must not without reasonable excuse,
disclose information coming to the ADR convenors knowledge during an ADR
process.
- Therefore there is no obligation on [insert name] to of accepted the offer of [insert
name] and there are no negative consequences of him no doing so.
- However if the offer had been after mediation and it was held to be a reasonable
offer, despite the fact that under r 681 the general rule is that winner gets costs, costs
will be awarded on an indemnity bases (r703) to the party who made the reasonable
offer.
LIMITS: Willamson v Scmidt
While a participant cannot lead evidence of anything said or done at mediation in later
proceedings, a participant is entitled to prove by admissible evidence pf any factor or matter
disclosed at mediation.
Cant whitewash or sterilise material just by raising it at mediation.
EXCEPTIONS s54(2) CPA: disclosure is justified (reasonable excuse) when:
Is made with the parties agreement
For an inquiry or proceeding relating to an offence occurring in the ADR
process
For a proceeding based on a fraud alleged to relate to or have occurred in the
ADR process, or
To fulfil a statutory requirement.
What to say if someone over inflates their damages / or admits
something
Justice Young in the NSW case of Lukies v Ripley had to decide this exact issue. Justice
Young had to determine whether or not evidence which demonstrated that in mediation,
the plaintiff, asked for far too much in damages, and therefore, the defendant argued,
prevented him from settling and so forcing the whole litigation to Court. Justice Young
decided not to admit such evidence on public policy grounds, stating If parties have
attempted to settle the whole or part of litigation and if they have agreed between
themselves expressly or impliedly that they will not give in evidence any communication
made during those discussions, then public policy makes those discussions privileged
from disclosure in a court of law or equity.
Not at meditation/ADR
IF OFFER MADE BY PLAINTIFF:
- Here an offer to settle was made by the plaintiff [insert name] to defendant [insert
name], which was refused, which after the judgment has seen to be a (un)reasonable
one.
- Rule 360 says that as the plaintiff has made an offer that is not accepted by the
defendant and the plaintiff obtains an order no less favourable than the offer & court
is satisfied plaintiff was at all material times willing and able to carry out what was
proposed in the offer, the court must order the defendant to pay the plaintiff's costs
calculated on the indemnity basis unless the defendant shows another order for costs
is appropriate in the circumstances. GO TO COSTS ABOVE
IF OFFER MADE BY DEFENDANT:
- Here an offer to settle was made by the defendant [insert name] to plaintiff [insert
name], which was refused, which after the judgment has seen to be a (un)reasonable
one.
- R 361 says that if a defendant makes an offer that is not accepted by the plaintiff and
the plaintiff does not obtain an order that is more favourable to the plaintiff than the
offer; and the court is satisfied that the defendant was at all material times willing and
able to carry out what was proposed in the offer. Unless a party shows another order
for costs is appropriate in the circumstances, the court must
(a) order the defendant to pay the plaintiff's costs, calculated on the standard basis,
up to and including the day of service of the offer; and
(b) order the plaintiff to pay the defendant's costs, calculated on the standard basis,
after the day of service of the offer. GO TO COSTS ABOVE
COSTS (Always ask at end) STATE AT END OF QUESTION / CONCLUDE
Definition: refers to the sums of money which a party may recover at the end of litigation
from the other side for reimbursement of expenses incurred in litigation.
Step 1: General Rule While costs are at the discretion of the court, if a case goes to
trial, the loser usually pays the costs of the winner UCPR r 681
Step 2: Which rate is applicable?
[1] Standard basis (usual approach)
Party & Party basis
702 Standard basis of assessment
(1) Unless these rules or an order of the court provides otherwise, a costs assessor must
assess costs on the standard basis.
(2) When assessing costs on the standard basis, a costs assessor must allow all costs
necessary or proper for the attainment of justice or for enforcing or defending the rights of
the party whose costs are being assessed.
[2] Indemnity basis (more generous scale)
Applicable where
o Misconduct, obstruction, delay or abuse of process
o Also used to penalize parties who fail to accept reasonable settlement
offers
Maitland Hospital v Fisher (example of offer to settle)
Plaintiff was 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.
703 Indemnity basis of assessment
(1) The court may order costs to be assessed on the indemnity basis.
NoteCosts on the indemnity basis were previously solicitor and client costssee rule
743S (Old basis for taxing costs equates to new basis for assessing costs).
(2) Without limiting subrule (1), the court may order that costs be assessed on the
indemnity basis if the court orders the payment of costs
(a) out of a fund; or
(b) to a party who sues or is sued as a trustee; or
(c) of an application in a proceeding brought for noncompliance with an order of the court.
(3) When assessing costs on the indemnity basis, a costs assessor must allow all costs
reasonably incurred and of a reasonable amount, having regard to
(a) the scale of fees prescribed for the court; and
(b) any costs agreement between the party to whom the costs are payable and the party's
solicitor; and
(c) charges ordinarily payable by a client to a solicitor for the work.
Alternative Dispute Resolution THEORY / PROBLEM
To save the Courts time, there is a clear judicial reference in favour of not generally letting
a matter go to trial unless parties have tried alternative dispute resolution and such attitude
is reflected in Practice Directions, CPA s 37 & case law (eg ACCC v Cadbury
Schweppes : trial judge ordered the parties to attend mediation before the defence had
been filed, despite the parties desire to wait). ADR
As part of the reforms re case management, QLD has two ADR options: mediation or case
appraisal s39 CPA.
Note: trial dates may not set until ADR process followed.
Legislative objectives for ADR
37 Objects of pt 6 UCPR
(a) to provide an opportunity for litigants to participate in ADR processes in order to
achieve negotiated settlements and satisfactory resolution of disputes; &
(b) to improve access to justice for litigants and to reduce cost and delay; and
(c) ADR processes to be conducted as quickly, and with as little formality and
technicality, as possible; and
(d) to safeguard ADR processes- by extending the same protection as a court; and by
ensuring they remain confidential.
PRACTICALLY though: to save the Courts time
ADR & the judicial role
The growth of ADR in Australia is intertwined with the advent of case management. Within
the panoply of case management powers is the power to refer proceedings to ADR. Parties
are increasingly expected to attempt to resolve disputes prior to resorting to litigation and
managerial judges are engaged in encouraging parties to resolves disputes. Case
management is becoming imbued in the processes of ADR & shares a common aim of
promoting the efficient & cost-effective resolution of disputes.
How can Parties be referred to Mediation or Case Appraisal? Getting to ADR
THEORY QUESTION
[1] Parties can decide they want to go to ADR & can refer their dispute to an ADR process,
filing a consent order. Court then makes a referral order CPA s 42
[2] Of its own initiative, the Court may order parties to go to mediation/CA CPA s43 / UCPR
r 319
Considerations: without limiting the Courts discretion, CPA s43(4), says the Court can
take the following matters into account: whether the costs of litigating the dispute to the end
are likely to be disproportionate to the benefit gained AND the likelihood of an appraisal
producing a compromise or an abandonment of a claim or defence.
Objection? (Eg: already been to mediation a few times)
A party may object to the reference, within 7 days of receiving the notice, by filing an
objection notice (stating the reasons for the objection). If objection, 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 r 319
[3] The court may order a dispute to mediation or case appraisal on the application of a
party or if the proceedings is otherwise before the court (eg where the case has already
been set down for hearing or part-heard) UCPR r 320
Theory behind a Court being able to order ADR
It is a striking development in ADR in Australia that legislation has now given Courts the
power to order parties to attend ADR even if one or more of the parties opposes such an
order. An examination of the legislative debates preceding the enactment of such legislation
reveals that the justifications were almost entirely about the perceived capacity of ADR to
save time & costs & to take pressure off crowded Court dockets than they were about the
intrinsic qualities of ADR which make it preferable to litigation.
Consequences of Referral to ADR
1. Proceedings are stayed (until report from ADR convenor is received by Court)
UCPR r 321
2. Parties must attend ADR and must not impede ADR convenor. CPA s 44
o If Mediation: Parties must act reasonably & genuinely to assist the mediator r
325
Impede: A party will impede an ADR process where the party fails to attend an ADR
process, to participate in the process or pay an amount the party is required to pay under a
referring order within the time stated in the order. .
Consequences of impeding: If a party impedes the ADR process, the court may impose
sanctions against the party, including an order that any claim for relief by the defaulting
party is stayed until further order and by taking the partys action into account when
awarding costs CPA s 44(2)
Costs of failed ADR are costs in the dispute
Unless otherwise ordered by the Court, each partys costs of & incidental to an ADR
process not resulting in the full settlement of the dispute between the parties are the partys
costs in dispute UCPR 351
MEDIATION
LEGISLATION Civil Proceedings Act 2011 & UCPR
DEFINTIONS Assisted negotiation (parties get to fashion their own agreements)
Assisted: an independent third party assists the parties to negotiate a resolution
Negotiation: a process whereby the parties confer with each other for the purpose of
reaching an agreement that satisfies their respective interests.
CPA definition s40 (note: intentionally broad)
Mediation is a process under the rules in which the parties use a mediator to help them
resolve their dispute by negotiated agreement without adjudication.
BASICS Can be started before or after proceedings
Role of Mediator
Broadly: to facilitate negotiation.
1. Rule 326 UCPR provides that the mediator may:
gather information about the nature and facts of the dispute in any way the mediator
decides.
decide whether a party may be represented at the mediation and, if so, by whom.
see the parties, with or without their representatives, together or separately.
2. Rule 327 UCPR gives mediator or party liberty to apply to Court
The mediator or a party may apply to the court at any time for directions on any
issue about the mediation.
3. Rule 328 UCPR provides that the mediator may:
Seek legal or other advice about the dispute from independent third parties.
If extra costs are involved for this, the mediator must has the leave of the court or the
parties agreement to pay extra costs.
If the court gives leave, the court must also order the parties to pay the extra cost;
and state to whom and by when the payment must be made.
The mediator must disclose the substance of the advice to the parties.
4. Rule 330 UCPR provides that the mediator may abandon the mediation if the
mediator considers further efforts at mediation will not lead to the resolution of the
dispute or an issue in the dispute.
Before abandoning the mediation, the mediator must(a) inform the parties of the
mediator's intention; and (b) give them an opportunity to reconsider their positions
Immunity of Mediator
CPA 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 Supreme Court judge
performing a judicial function.
Replacement of Mediator
333 Replacement of mediator
(1) The court may, by further order, revoke the appointment of a mediator and appoint
someone else as mediator if the court is satisfied it is desirable to do so.
(2) When appointing a substitute mediator, the court may decide the amount (if any) to be
paid to the retiring mediator for work done.
AFTER mediation
1. Mediator must file a certificate about the mediation CPA s49 (1)
CIVIL PROCEEDINGS ACT 2011 - SECT 49
As soon as practicable after a mediation has finished, the mediator must file a certificate
about the mediation in the approved form.
2. Form of Certificate UCPR r 331
must not contain comment about the extent to which a party participated or
refused to participate in mediation
but may state that a party did not attend the mediation
3. If mediation is unsuccessful UCPR r 332
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.
4. If mediation successful CPA s 48; UCPR r 329
If agreement reached (whole or part), the agreement must be written down
and signed by or for each party and by the mediator.
The agreement has effect as a compromise.
5. Apply to Supreme Court
After mediator has filed certificate, any party may apply to the court for an
order giving effect to the agreement & the court may make any order it
considers appropriate in the circumstances: CPA, s 50.
Rationale: if they do not perform obligations from mediation, it is contempt
of Court as opposed to a simple breach of contract.
obligations from mediation, it is contempt of Court as opposed to a simple
breach of contract.
MEDIATION OR CASE APPRAISAL OR COURT? THEORY QUESTION
ADR v COURT
- ADR is speedier and less costly than litigation
- Sometimes judges do not have expertise in a matter, when mediators do
- in commercial & on going relationship matters parties may come to a more amicable
agreement in ADR as opposed to Court
- When parties hate each other, ADR probably pointless
o Refusal by Mason P to order ADR in Harrison and Schipp as parties the end
game where the parties are staring each other down like 19th century Western
gun fighters.
convinced mediation would be more costly for the parties, would distract
them from preparing for trial and might even cause the hearing date to be
displaced
parties were represented by lawyers & if they were going to settle at this
late date, they could do so
- Mediation/CA is CONFIDENTIAL (court is 99% not confidential)
MEDIATION v CASE APPRAISAL
RISK of compulsory mediation / Case appraisal is that it will be sought by a partyfor an
ulterior purpose, eg to cause delay
Outcomes:
- Mediation does not guarantee an outcome (as third party has no decision making
power & Parties may not agree)
- Case Appraisal will provide an outcome, although it can be objected
Process:
- Mediation allows the parties to revise and adjust the scope of their conflict and
created more flexible solutions
- Where as Case Appraisal provides a decision that a Court could give
Legal Representation:
- Mediation does not guarantee legal representation r 326 UCPR
- Case Appraisal says you have a right to legal representation r 336 UCPR
Benefits of mediation
- Mediation is relatively simple . There are no complex procedural or evidentiary
rules which must be followed
- Mediation allows the parties to revise and adjust the scope of their conflict .
In a trial, initial pleadings and rules of procedure limit the issues which a party can
raise. In mediation, as circumstances change so can the topics up for discussion.
This increased flexibility makes it easier for negotiators to act as problem-solvers
instead of adversaries.
- Mediation allows for flexible solutions and settlements . The relief available in
court is usually based on pecuniary damages, and equitable relief is hard to come by.
In mediation, however, the parties can agree to a settlement requiring, or restraining,
action by one party which was not originally envisioned as something beneficial to the
other party.
- Settlements reached in mediation are more agreeable to both parties than court
judgments. Because any settlement arrived at through negotiation is necessarily
agreed to voluntarily by both parties, obligations under the agreement are more likely
to be fulfilled than obligations imposed by a court.
Disadvantages of mediation
- Mediation does not always result in a settlement agreement. Parties might spend
their time and money in mediation only to find that they must have their case settled for
them by a court. Opting for mediation, therefore, presents something of a risk. Further, if
mediation fails, much of a partys ammunition might have already been exposed to the
opposing party, thereby becoming far less useful in the ensuing trial.
Will not be suitable where
Mediation will not be suitable where the parties to the dispute require a court
judgment (for example where provisions in standard terms and conditions require
determination in light of an ongoing trading relationship) or a remedy that a
mediation process cannot provide, such as injunction.
It has been suggested that fraud cases may be less suitable for mediation but
this is probably only the case where there has been the most serious breakdown
in trust between the parties.