LAW EXTENSION COMMITTEEUNIVERSITY OF SYDNEY

15 PRACTICE AND PROCEDURESUMMER SESSION 2005-06

Explanatory Note 1Course Description and Objectives 1Teacher 2Assessment 2March 2006 Examination 2Lectures 2Weekend Schools 1 and 2 2Texts and Materials 3Assignments 3Assignment Questions 4Prescribed Topics and Course Outline 5Lecture Outlines 10

LAW EXTENSION COMMITTEE SUMMER 2005-0615 PRACTICE AND PROCEDURE

EXPLANATORY NOTE

Up to and including the Summer Semester 2004-05 the subject of Practice and Procedure involved an examination of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules (NSW).

This gave a basis for understanding civil litigation in the Supreme Court of NSW, and also an essential understanding to the conduct of civil litigation in the District Court of NSW and in the Local Court in NSW. However, in relation to practice as a legal practitioner if a matter was to be conducted in, say, the District Court, the practitioner would have needed to know the provisions of the District Court Act 1973 (NSW) and the District Court Rules. Similarly, a matter in the Local Court would have required the application of the Local Court (Civil Claims) Act 1970 (NSW) and the Local Court Rules.

As a consequence of the introduction in 2005 of the Civil Procedure Act and Uniform Civil Procedure Rules, there is much greater uniformity in procedures applicable to these various levels of courts in their civil jurisdiction.

It is essential, generally, for all students to regularly access the LEC website to ascertain any additional material as and when it becomes available, especially references to relevant Practice Notes.

COURSE DESCRIPTION AND OBJECTIVES

The subject of Practice and Procedure deals with the day-to-day practicalities of civil litigation in New South Wales.

The emphasis throughout the course is on conducting matters through the Supreme Court of New South Wales. However, with the changes introduced by the Civil Procedure Act of 2005 and the Uniform Civil Procedure Rules 2005 the procedure, with some exceptions, will be uniform throughout the Supreme Court, District and Local Courts of New South Wales.

The topics covered in the course are set out in the syllabus. In general terms the course deals with:

(a) the logistics of commencing an action in the Supreme Court; the various interlocutory steps between the commencement of an action and the hearing stage, including discovery and inspection and the issuing of subpoenas;

(b) evidence in relation to procedural matters;

(c) the logistics of “running” a matter, including enforcement of judgment;

(d) elementary drafting principles, including practical drafting of documents;

(e) mediation and alternative dispute resolution.

TEACHER

Mr R Gowenlock, LLB (Syd)

Bob Gowenlock is a Barrister practising in Sydney, and a former part-time Lecturer in Practice and Procedure at the University of Technology, Sydney. He has a wide area of practice, including Property, Trusts, Wills and Estates, Negligence, Insurance and Personal Injury, Bankruptcy and Equity.ASSESSMENT

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To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.

To register with the LEC, go to www.usyd.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

MARCH 2006 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics:

General issues;

Jurisdictional issues; Initiating civil actions I; Initiating civil actions II; Interlocutory procedures I; Interlocutory procedures II; Hearings and judgments and enforcement; Alternative dispute resolution.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed the cases and statutory provisions referred to in the Law Extension Committee’s course and lecture outlines.

All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.

LECTURES

Lectures will be held on Fridays commencing at 6.00pm in Law School Lecture Theatre 1 (LSLT1). The first lecture will be held on Friday 18 November 2005.

The study break is from Saturday 24 December 2005 to Sunday 8 January 2006.

WEEKEND SCHOOLS 1 AND 2

There are two weekend schools principally for external students. Lecture students may attend but should be aware that weekend school classes aim to cover the same material provided in weekly lectures and are primarily for the assistance of external students.

Please note that it may not be possible to cover the entire course during the weekend schools.

Weekend School 1 Carslaw Lecture Theatre

Weekend School 2 Chemistry Lecture Theatre

Saturday 3 December 2005: 4pm - 8pmSunday 4 December 2005: 8am - noon

CLT 273

CLT 175

Saturday 4 February 2006: 4pm - 8pmSunday 5 February 2006: 8am - noon

ChLT 1

ChLT 1

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TEXTS AND MATERIALS

Course Materials

Practice and Procedure Course Materials (availability to be advised via LEC Webcampus)

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

Civil Procedure Act 2005

Uniform Civil Procedures Rules 2005

Evidence Act 1995 (NSW) or (Cth)

Reference Materials

Ritchie, Uniform Civil Procedure NSW, LexisNexis Butterworths (loose leaf service). Alternatively, Thompsons, New South Wales Civil Practice and Practice

Cairns B.C., Australian Civil Procedure, 6th ed. Thomson Lawbook, 2004

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the facilities on the LEC Webcampus including links to relevant cases and legislation on the Course Materials section.

ASSIGNMENTS

There are two assignments in Practice and Procedure. The maximum word limit for each assignment is 2000 words (inclusive of all footnotes but not bibliography).

Although the assignments 1 and 2 are voluntary, students are strongly encouraged to complete them. Students must submit the assignment by the due date, and should achieve a grade of at least 50% to demonstrate an understanding of the subject. See the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus and the advice in your Course Information Handbook before submitting assignments.

Completed assignments should be lodged through the LEC Webcampus by 9.00am on the following dates:

Assignment 1 Monday 5 December 2005 (Week 4)

Assignment 2 Monday 16 January 2006 (Week 8)

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ASSIGNMENT QUESTIONS

To obtain copies of the Practice and Procedure assignment questions for the Summer Session 2005-06, please follow the instructions below:

1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the Assignment questions for this subject.

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PRESCRIBED TOPICS AND COURSE OUTLINE

NOTE: The references to specific rules and sections of statutes are made as a general guideline only. Students should be aware that other provisions, practice notes etc also need to be considered in relation to each topic outlined below.

1. GENERAL ISSUES

(1) Jurisdiction

(a) Original jurisdiction: civil

(i) Civil Procedure Act 2005 (NSW), s 5Supreme Court Act 1970 (NSW), s 23Service and Execution of Process Act 1992 (Cth)Foreign Judgments Act 1991 (Cth)Jurisdiction of Courts (Foreign land) Act 1989 (NSW)Family Law Act 1975 (Cth), s 40Land and Environment Court Act 1979 (NSW)Consumer Trading and Tenancy Tribunal Act (NSW)

(ii) Limitations imposed by costs rules(iii) Inherent jurisdiction/incidental powers

(b) Appellate jurisdiction: civil

Civil Procedure Act 2005 (NSW)

(c) Original jurisdiction: criminal

Criminal Procedure Act 1986 (NSW)Criminal Procedure Regulation 1995, s 4Crimes Act 1900 (NSW), ss 12, 19A

(d) Appellate jurisdiction: criminal

Criminal Appeal Act 1912 (NSW)Criminal Procedure Act 1986 (NSW)

2. CROSS VESTING LEGISLATION

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) Re Wakim; Ex parte McNally (1999) 73 ALJR 839Judiciary Act 1903 (Cth)

3. OVERVIEW OF CIVIL PROCEDURE ACT 2005

4. MONETARY JURISDICTIONAL LIMITS OF THE DISTRICT COURT AND LOCAL COURT

5. TRANSFER OF MATTERS BETWEEN THE SUPREME, DISTRICT AND LOCAL COURTS

Note: All references to the Act or Rules refer to the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 except where otherwise specified.

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6A. INITIATING CIVIL ACTIONS I

1. TimePart 1 Division 2 Rules 1.11 to 1.13

2. Preparation and Filing of DocumentsPart 4 Rules

3. Preliminary DiscoveryPart 5 Rules

4. Parties to Proceedings and RepresentationPart 7 Rules

5. Joinder of Causes of Action and PartiesPart 6 Division 5 Rules Part 6 Division 6 Rules

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589Marino v Esanda Limited [1986] VR 735

6. Originating ProcessPart 6 Division 1 Rules Part 6 Division 2 RulesPart 6 Division 4 Ruless100 Interest

7. Pleading PrinciplesPart 6 Division 4 RulesPart 14 Rules

8. Requirements on Clients/Legal Practitioners in Commencement/Conduct of ProceedingsPart 14 Division 4 RulesOther rules and statutes

9. ParticularsPart 15 Division 1 Rules GenerallyPart 15 Division 2 Rules Personal injury cases

6B. INITIATING CIVIL ACTIONS II 1. Preliminary Consideration of Costs

Part 42 Rules

2. Commencement of ProceedingsPart 6 Division 1 RulesPart 4 Division 2 Rules

3. ServicePart 10 RulesPart 11 RulesSchedule 6 (Rule 11.2)

(Commonwealth) Service & Execution of Process Act 1992Corporations Law – Service Provisions, s109 X, s601CX

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4. AppearancePart 6 Rule 1 RulesPart 6 Division 3 RulesPart 12 Rule 11

5. Defences & Further PleadingsPart 14 Division 1 RulesPart 14 Division 2 RulesPart 14 Division 4

6. Cross ClaimsSection 22 Act Cross ClaimSection 21 Act Set offPart 9 Rules

7. InterpleaderPart 43 Rules

8. AmendmentPart 19 RulesSection 64, 65, 58(1)(2), 56 and 57

7A. INTERLOCUTORY PROCEDURES 1

1. Notice of MotionPart 18 Rules Motion Part 35 Rules Affidavits Part 31 Rules Evidence Section 75 Evidence Act 1995 (NSW)

2. Default JudgmentPart 16 Rules

3. Summary DisposalPart 13 RulesPart 14 Rule 28 RulesPart 17 Rule 7 RulesPart 20 Rule 33 & 34 Rules

4. Other Forms of DisposalPart 12 Division I Rules Discontinuance Part 42 Rule 19 Rules CostsPart 12 Division 2 Rules WithdrawalPart 12 Division 3 Rules DismissalSection 61 Act

5. Security for CostsPart 42 Rule 21 RulesSection 1335 Corporations law

7B. INTERLOCUTORY PROCEDURES II

1. Discovery, Inspection, Notice to Produce DocumentsPart 21 RulesReference should be made to definitions in the dictionary appended to the RulesEvidence Act 1995 (NSW)

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2. InterrogatoriesPart 22 Rules

3. Medical Examinations & Inspection of PropertyPart 23 RulesEvidence Act 1995 (NSW)Part 31 Division 2, 3 Rules Expert evidence

4. Subpoenas & Notice to Produce at TrialPart 33 Rules SubpoenasPart 34 Rules Notice to produce at trial

Service and Execution of Process Act 1992 (Cth)Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98R v Barnes [1909] 1 KB 258R v Hurle-Hobb [1945] 1 KB 165National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 377Commissioner for Railways v Small (1938) 38 SR (NSW) 564

5. AdmissionsPart 17 RulesSection 70 Act

6. Compromise & SettlementPart 20 Rule 25 Rules CompromisePart 42 Division 3 Rules CostsPart 42 Division 4 Rules

Calderbank v Calderbank [1946] Fam 93Sections 71-77 Act Settlement, legal incapacity

8. HEARINGS AND JUDGMENT

1. Preparation for and HearingsPart 29 Rules Trial Part 30 Rules AssessmentPart 31 Rules EvidencePart 35 Rules Affidavits

2. JudgmentPart 36 Rule 4 RulesPart 36 Rule 8 RulesPart 36 Rule 12 RulesPart 36 Division 4 Rules Setting aside Part 36 Interest, s101

9. APPEAL

10. ENFORCEMENT

Rules 36.7 RulesSchedule 5 Rules InterestPart 37 Rules Payments by instalmentsPart 38 Rules ExaminationPart 39 RulesPart 40 RulesPart 7 Act ss90-138

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11. CASE MANAGEMENT

S 15 ActS 56, 57, 58, s61, s62, s63Part 2 Rules Part 3 Rules Practice Notes as made available by the Courts

12. LESS LITIGIOUS APPROACHES TO CONTENTIOUS MATTERS

(1) Managerial Judging

Rogers, A., The managerial or interventionist judge (1993) 3 Journal of Judicial Administration 96-110

(2) Mediation

Community Justice Centers Act 1993 (NSW)

Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, per Kirby P at 347 and 351People v Snyder [129 MISC 2d 137] 137

(3) Mediation, Arbitration, Expert Evaluation and Other Dispute Resolution Processes

Part 4 and Part 5 ActPart 20 Rules Arbitration Act 1902 (NSW)Commercial Arbitration Act 1984 (NSW)Esso Australia Ltd v Plowman (1995) 183 CLR 10

(4) Negotiation

Inns of Court School of Law, Negotiation, Blackstone Press, 1997

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LECTURE OUTLINES

LECTURE 1

1. GENERAL ISSUES

Introduction

The course, generally, involves a quite detailed study of the procedures pertinent to the conduct of a civil matter in the Supreme Court of New South Wales.

This lecture is divided generally into a consideration of the civil jurisdiction of the Supreme Court, both original and at the appellate level; and of the criminal jurisdiction of the Supreme Court, again both at the original and appellate levels. There is also a limited consideration of the District court and Local Court jurisdiction.

Also one aspect which needs to be considered is the cross vesting legislation. Notwithstanding the Re Wakim decision it is important to realise that State courts being cross-vested with Federal jurisdiction is still in force (the ability of Federal courts to deal with State jurisdiction in certain circumstances requires detailed consideration later).

As will be shown the Supreme Court may exercise a very broad jurisdiction, but historical developments and operation of the Federal/State system requires a detailed consideration.

There is a practical limitation which comes into force at times, especially in relation to common law claims such as personal injury cases, debt recovery, where the amounts sought to be recovered are limited, and that is the question of costs – so for example the Supreme Court may have jurisdiction to entertain a debt recovery claim of say $50,000 but very real consideration will lead to a plaintiff in most circumstances seeking to have this claim heard in the District Court, or for lesser sums, even the Local Court.

1(a) -Original Jurisdiction – Civil(a) Supreme Court of New South Wales was established under the Charter of Justice 1823. The

Supreme Court Act of 1970, s.22 and s.23 provided: -

“s.22 The Supreme Court of NSW as formally establishes as the superior court of record in NSW is hereby continued.”

“s.23 The Court shall have all jurisdiction which may be necessary for the administration of justice in NSW.”

(b) Section 4 Civil Procedure Act 2005 maintains jurisdiction.

The Supreme Court, being a superior court of record, has an inherent jurisdiction.

This inherent jurisdiction is extensive but is impossible precisely to define.All courts have an incidental power to control their own process, which is quite distinct of Grassby v R (1989) 168 CLR 1 (at 16-19), also refer to the article by Mrs Dockery, 1997, 113 LQR 120.

(c) Aspects wherein the Supreme Court’s jurisdiction is extended.

Historically service was only effective when carried out on a person within the jurisdiction.

Extension of service has been achieved under:-

(i) The Service & Execution of Process Act 1992 (Cth) – within Australia (s.15)

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(ii) Alternatively to (i), Part 10 R3;

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(iii) Service outside Australia Part 11, referencing schedule 3;

(iv) Other enactments which can have the effect of extending jurisdiction include:-

- Foreign Judgments Act 1992 (Cth)- Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) permits the court, at its discretion, to exercise jurisdiction notwithstanding property is outside NSW.

Other provisions of relevance include:-

(a) Sections 39 and 39A Judiciary Act 1903 (Cth)

(b) Cross vesting legislation

(c) Commonwealth legislation, eg. Trade Practices Act, consumer protection provisions.

(d) Limitations on jurisdiction, include:-

i. Section 38 of the Judiciary Act 1903 which concerns itself with the exclusive jurisdiction of the High Court.

ii. The Federal Court and Federal Magistrates Court has jurisdiction in a wide range of matters such as bankruptcy;

iii. Family law matters largely fall within the jurisdiction of the Family Court of Australia and Federal Magistrates Court, s.31 and s.31(1)(v) (Note: jurisdiction of the local courts).

iv. Even in matters which can be described properly as a State province, the jurisdiction of the Supreme Court can be ousted by specific statutory provisions, eg:-

a. Land & Environment Court Act 1970 – more specifically s.20(1)9e) and s.71

b. Consumer Trader & Tenancy Tribunal Act 2001 – s.5(2), s.21 and s.22

v. Costs implications

Generally, in claims for money, the District Court has jurisdiction to hear claims up to $750,000 and the Local Court up to $60,000 (Note: Small Claims up to $10,000).

There are costs discretions such as s.60, s.98(4) and Part 42.4 which may play a role in determining whether a matter should be brought in a particular jurisdiction, eg. the Local Court rather than the Supreme Court.

The Supreme Court may also order a transfer to appropriately, the District Court or Local Court (s.138 CP Act).

1(b) - Appellate Jurisdiction – Civil

(a) Appeal from Local Court:-

s.74(1) Appeal as of right to Supreme Court only on ground that involves a question of law alone.

s.74(2) From Small Claims Division only lack of jurisdiction or denial of natural justice.

s.75 By leave in certain circumstances.

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(b) Appeal from District Court

Section 127 District Court Act permits a party to appeal to the Supreme Court, as of right.

However, leave of the Supreme Court is required for a:- Interlocutory order/judgment Order/judgment costs alone Appeal where the order etc is under $100,000 Summary judgment

1(c) – Original Jurisdiction – Criminal

(a) Criminal Procedure Act 1987 (NSW) contains provisions including:- Certain offences must be dealt with on indictment unless it must or may be dealt with

summarily; Certain offences must or may be dealt with summarily; Summary offences are to be dealt with by a magistrate; The Supreme Court has jurisdiction in all indictable offences. The District Court has also,

except those offences prescribed by regulation.

(b) The Criminal Procedure Regulation 1905, Reg 4 provides that for the purposes of s.11, the offences not within the jurisdiction of the District Court are those referred to in sections 12 and 19A Crimes Act.

(c) Section 12 Crimes Act in effect covers treasonable offences. Section 19A Crimes Act deals with sentence to life for murder.

1(d) – Appellate Jurisdiction – Criminal(a) Section 3 Criminal Appeal Act 1912 provides for the Supreme Court for the purposes of the

Act to be the Court of Criminal Appeal.

(b) Section 5 permits an appeal to a person convicted on indictment in specified circumstances.

2. CROSS VESTING LEGISLATION

Initially, the relevant courts which were able to be cross-vested with jurisdiction were the Federal Court, Family Court and the State and Territory Supreme Courts, both with original and appellate jurisdiction.

In relation to NSW, The Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) vest jurisdiction:-

s.4(3) Supreme Court of another State or Territory may exercise original jurisdiction with respect to State matters.

s.9 Enables the court to actually exercise jurisdiction.

(Note: Exception in criminal matters)

With Commonwealth legislation, The Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth):-

“s.4(1)Where the Federal or Family Court had jurisdiction in a civil matter, a State Supreme Court is vested with Federal jurisdiction with respect to that matter (with exceptions, eg, certain provisions Trade Practices Act, etc).”

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s.9 Gives power to exercise jurisdiction.

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

However, the position now effectively is that while State courts continue to be able to be vested with Commonwealth jurisdiction, this is not so in relation to Federal courts (including the Family Court) exercising State jurisdiction – Re Wakim.

The impact of Re Wakim: ex parte McNally (1999) 73 ALJR 839.

Basically, the majority decision held that s.9(2) of the Jurisdiction of the Courts (Cross Vesting) Act 1987 was unconstitutional and therefore invalid.

Gave detailed consideration whether a State claim nevertheless may fall within the accrued jurisdiction of a Federal court – the central issue involves the aspect of a single justiciable controversy.

3. OVERVIEW OF CIVIL PROCEDURE ACT

Consider the emphasis on case management:- Part 6, especially Divisions 1 & 2, of the Civil Procedure Act 2005.

4. MONETARY JURISDICTIONAL LIMITS

A. District Court The limit is $750,000 for general debt and damages claims.

Amended s.51 District Court Act confers a consent jurisdiction.

B. Local CourtThe jurisdictional limit is $60,000 in its General Division, $10,000 in Small Claims Division.

s.66 Local Courts Act permits extension for an amount not exceeding 20% in specified circumstances.

5. TRANSFER OF MATTERS BETWEEN COURTS

(a) Transfer to higher court, Part 9 Division 1, Civil Procedure Act.(b) Transfer to lower court, Part 9 Division 2, Civil Procedure Act.(c) Transfer between Local Courts, Part 9 Division 3, Civil Procedure Act. Part 44 Rules Transfer

of proceedings between Local Courts.

6A(3) PART 5 – DISCOVERY, PART 5

Procedures under Part 5.

A. Discovery to ascertain prospective defendant’s identity or whereabouts.B. Discovery of documents from prospective defendant.C. Discovery of documents from other persons.

Examine (A) in detail 5.2Step 1 Apply to court for order.Step 2 What order can be made

Procedural steps Commence by summons or notice of motion 5.2(8)

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Supported by affidavit 5.2(7) (consider evidence required) Application, with affidavit, must be served personally 5.2(7) Conduct money 5.2(5) required for order. Extra expense 5.2(6) Orders 5.2(2) and (3)

Examine (B) in detail, Discovery 5.3 (prospective defendants) Affidavit required Needs to address 1(a), (b) and (c) Relevant documents.

Examine (c) in detail, Discovery 5.4 (other persons) Possession of document relates to any question in the proceedings.

Generally: Part 21 Division 2 (generally discovery) applies to Discovery under Part 5 (5.5) 5.7 privilege remains available to person against whom order is made. 5.8 general provision for costs and expenses. 5.6 applicant for order may have to provide security for costs.

6A(4) PART 7 – PARTIES TO PROCEEDINGS & REPRESENTATION

Division 4 – Persons under legal incapacity.

Person under legal incapacity:- Not commence or carry on proceedings except by tutor 7.14 If a defendant, tutor needs to enter an appearance 7.17 Court may appoint/remove tutors 7.18

Division 5 – Business NamesPersons are to sue and be sued in own names and not under any business name 7.19

However, procedure available to commence proceedings where an unregistered business name is involved 7.20, 7.21 & 7.22

Division 7 – Appointment and Removal of Solicitors Especially change of solicitor/agent 7.26 Removal of solicitor 7.27 Withdrawal of solicitor 7.29 Effect of change 7.30

Division 2 – Representation

Division 1 – Corporation in Proceedings

6A(4) PART 6 - JOINDER OF CAUSES OF ACTION AND PARTIES

(a) Joinder of causes of action 6.18(especially consider the impact of Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589).

(b) Joinder of parties1. General rule 6.192. Joint entitlement 6.20 & 6.253. Join and several liability 6.214. Court join parties 6.245. No joinder for costs 6.266. Third party application 6.277. When proceedings commence on joinder 6.28

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(c) Removal of parties General order 6.29 Effect of changes 6.310, 6.31 Substituting and general conduct 6.32

(6) PART 6 - ORIGINATING PROCESS

Only two forms of originating process:- Statement of Claim Summons

Consider:(i) When a Statement of Claim is mandatory 6.3(ii) When a Summons is mandatory 6.4(iii) When a choice is available 6.2(iv) Where incorrect procedure has been adopted 6.2, 6.6(v) Time limits for service 6.2(4) & (5)

Contents of originating process Part 6 Division 4Especially note the summons must specify a return date 6.15

6A(7) PARTS 6 & 14 PLEADINGS

(a) What is a pleading document?

(b) Progress of pleadings:-(i) Statement of Claim served(ii) Defence within 28 days 14.3(iii)Reply 14.4(iv)No further pleadings 14.5(v) Note: Cross claims

(c) General approach to drafting

(d) Rule provisions

a. Relief claimed 6.12b. Pleadings in paragraphs 14.6c. Facts not evidence 14.7d. Brevity 14.8e. Effect of documents 14.9f. Common money counts 14.12g. Specific matters to be pleaded 14.14

(e) Other Relevant Provisions No specific claim - unliquidated damages 14.13 Condition precedent 14.11 Possession of land 14.15 Consistency of allegations of fact 14.18 Property (Relationships) Act 1984 14.21 Part 14 generally

(f) Defencea. Admissions and traverse 14.26b. Defence of tender 14.25c. Joinder of issue 14.27d. Defence of extinction of title or right 14.29

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e. Time 14.30

(g) Striking out pleadings 14.28

6A(8) OBLIGATIONS ON PARTIES AND LEGAL PRACTITIONERS

(a) Verification of pleadings Part 14 Division 4(b) Case management Sections 56 & 57(c) Costs orders against parties/legal practitioners(d) Civil Liability Act 2002, and relevant provisions Divisions 5B and 5C(e) Legal Profession Act 1987(f) Cases: Degiorgio v Dunn (No 2) [2005] NSWSC 3 (unrep. 1/2/2005)

Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 (unrep. 9/5/2005)

6A(9) PARTICULARS

(a) Requirements under the Rules for pleadings. Pleadings, give all necessary particulars 15.1 Scott Schedule requirement 15.2 Fraud 15.3 Condition of mind 15.4 Negligence, etc 15.5 Out of pocket expenses 15.6 Exemplary and aggravated damages 15.7 & 8 Manner of giving particulars 15.19 Property (Relationships) Act 1984 15.11

(b) Practical approach Informal request for further and better particulars Order for particulars 15.10

(c) Personal injury case Part 15 Division 2

6B INITIATING CIVIL ACTIONS II

6B(1) COSTS General rule – costs follow the event 42.1 Indemnity costs 42.5 Interlocutory applications 42.7

6B(2) COMMENCEMENT OF PROCEEDINGS Filing 4.10 & 4.12 Validity for service 6.2(4)

6B(3) SERVICE(a) Overview

Consider: Documents requiring personal serviceOrdinary serviceService outside NSW but within AustraliaService outside Australia

(b) General ServiceA. Personal Service

When required 10.20 How effected generally 10.21 Proof of identity 10.27 On corporation 10.22

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o Corporations Lawo On Crown Solicitor 10.23o On judicial officers 10.24o On inmates 10.25o Keeping house 10.26

B. Other means of achieving service of originating process In accordance with agreement 10.6 Where defendant under unregistered business name 10.9 Where defendant under registered business name 10.10 Partner in limited partnership 10.11 Service on person under legal incapacity 10.12 Acceptance by solicitor 10.13 Substituted and informal service 10.14 Service in another court 10.18 Service in proceedings for possession of land 10.15 Waiver of objection to service 10.19

C. Manner of service of documents (generally) 10.5 Service of injunctions 10.17

(c) Service outside NSW, within Australia Alternatives, 10.3 or Service & Execution of Process Act 1992 (Cth) Commonwealth Act: -

o S.15 originating processo S.16 noticeo S.17 time for appearanceo S.9 on companieso S.11 proof of service

(d) Service outside Australia Part 11 applies to Supreme Court Part 11.2 refers to Schedule 6 for circumstances where originating process may be served: -

o Notice required 11.3o Leave to proceed if no appearance 11.4o Service of other documents 11.5o Mode of service 11.6o Setting aside originating process served outside Australia 11.7

Service may be effected in accordance with Attorney General’s arrangements Part 11 Division 2

6B(4) APPEARANCE No step without notice of appearance 6.1 How entered 6.9 Time for appearance 6.10 Submit to judgment 6.11

6B(5) DEFENCES & FURTHER PLEADINGS (Dealt with under pleadings)

6B(6) CROSS CLAIMS Cross claims s.22 Note limitation s.22(2) Set off s.21 Part 9 Rules

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6B(7) INTERPLEADER Part 43 RulesTwo procedures:-

Stakeholders interpleader Division 2 Sheriff’s interpleader Division 3 Generally Division 4

6B(8) AMENDMENT

(a) Amendment of statement of claim Once within time 19.1 (Rules) Disallowance 19.4

(b) Any document – court may order Section 64(c) Amendment of originating process after relevant limitation period Section 65(d) Court to consider dictates of justice Section 58(e) General procedure:-

Amendment to add or remove parties 19.2 Rules Duration of leave or consent 19.3 Mode of amendment 19.5 & 19.6

(f) General principles in exercise of discretion:- Section 56, 57 & 58 Consider decisions under previous rules, collected in extract from

Ritchie (Part 20 prior rules)(g) Costs 42.6

7A INTERLOCUTORY PROCEDURES 1

7A (1) NOTICE OF MOTION

An important procedure to obtain orders from the court, once proceedings have been commenced, up to, generally, final orders.

The need is to identify the orders you need from the court and to draft an affidavit(s) which provides the necessary evidence to support the orders.

(a) Motion Part 18 Interlocutory applications and other applications to be by motion 18.1 Notice generally to be served 18.2 and time 18.4,

also 18.5 Contents 18.3, especially (f) - state concisely the nature of the proposed order All applications , as far as practicable to be in the one motion 18.6 May proceed ex parte 18.7 Further hearing and directions 18.8 &18.9

(b) Evidence by affidavit Part 35 Evidence to be by affidavit 31.2 Cross examination of defendant 35.2 Affidavit divided into paragraphs 35.4 Alterations 35.5 Annexures and exhibits 35.6 Affidavits by persons who can’t read 35.7

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(c) Evidence in relation to interlocutory applications Part 31 generally Evidence Act generally General evidentiary principles Hearsay section s75 Evidence Act

7A (2) DEFAULT JUDGMENT Part 16

(a) When is a party in default? 16.2

(b) Procedure 16.3Affidavit of service Affidavit in support

(c) Requirements and judgments / orders depend on nature of claimPossession of land 16.4Detention of goods 16.5Debt or liquidated claim 16.6Unliquidated damages 16.7Mixed claims 16.8Costs alone 16.9Appropriate judgment 16.10

(d) Setting aside default judgment 36.16(1) &36.16(2) (a) (c)

Setting aside for irregularity etc 36.15

Cases(i) Grimshaw v Dunbar [1953] 1 QB 408 sets out the various factors to be considered, especially

default judgment for a liquidated demand(ii) Douglas v John Fairfax & Sons [1953] 3 NSWLR 126

- self executing orders not generally available(iii) Wentworth v Rogers (No.9) (1987) 8 NSWLR 3 88

- general discretion to vary or to supplement orders. To be applied cautiously.(iv) Garrad v Email Furniture Pty Ltd (1993) 32 NSWLR 662

- duty of disclosure in applying for ex-parte order important(v) Also where judgments irregularly obtained , in breach of good faith

- defendant entitled to set aside

7A(3) SUMMARY DISPOSAL AND DISPOSAL

(a) Summary judgment 13.1requires

(i) Evidence of facts(ii) Evidence of belief no defence to claim(iii) Stay pending cross claim 13.2

(b) Frivolous and vexatious proceedings 13.4Grounds : Frivolous or vexatious

: No reasonable cause of action: Abuse of process

Proceeding be dismissed

(c) Striking out pleadings 14.28Pleadings be struck out on grounds outlined

(d) Judgment on admissions 17.7

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(e) Judgment by agreement 20.33(Note non disclosure of orders 20.33(3) )

(f) Acknowledgment by defendant of liquidated claim 20.34

7A (4) OTHER FORMS OF DISPOSAL

(1) Discontinuance Part 12Discontinuance by consent 12.1By leave of the court 12.2Effect of discontinuance 12.3Costs consequence

- Usually plaintiff pays costs 42.19- Stay to secure costs 12.4

(2) Withdrawal of appearance or pleading 12.5, 12.6

(3) Dismissal for lack of progress Part 12 Division 3- Failure to proceed with due dispatch 12.7- Additional grounds Supreme Court 12.8- Cost consequences 42.19 & 20- Stay to secure costs 12.10

(4) Power of the Court to give directions s 61 (3)

(5) Setting aside originating process 12.11

7A (5) SECURITY FOR COSTS

General outline: provision by the plaintiff for the defendants costs if the defendant is ultimately successful, but limited grounds - - 42.21

- s1335 Corporations LawManner of giving security 42.21(2)Dismissal by order if failure to give security 42.21(3)

7B INTERLOCUTORY PROCEDURES II

7B(1) Discovery Inspection and Notice to Produce Documents Part 21(i). Note two distinct procedures.

A. Order for Discovery 21.2B. Notice to produce before hearing 21.10

(ii) Definition provisions are importantDefinitions, especially- Excluded document 21.1- Relevant to a fact in issue 21.1- Privilege Dictionary

(iii) (a) Order for Discovery 21.2Need to specify documents

(b) Not available personal injury claims except “special reasons” 21.8

(iv) Procedural steps:-(a) List of documents, generally provided within 28 days

- Contents of list 21.3

21

- Affidavit supporting 21.4- Solicitors certificate 21.4

(b) Documents then made available 21.5(c) Documents subsequently found 21.6(d) Restriction on disclosure of discovered documents 21.7

(v) What documents may be privileged 21.3(2)(a) Div. 1, Part 3.10. Evidence Act.(b) Protected, section 126B Evidence Act.(c) Not be adduced pursuant 126H Evidence Act.(d) Section 128 Evidence Act or s.87 Civil Procedure Act.

- Tends to prove- (i) Committal of an offence, or- (ii) Liable to civil penalty

(e) Information use contrary to section 129 Evidence Act.(f) Evidence, matters of State, section 130 Evidence Act.(g) Information, s.131 Evidence Act.(h) Information, admission contrary to any Act.But not where Court declares that no privilege applies.

(vi) Notice to Produce Before Hearing Part 21 Div 2(contrast with Notice 10 Produce at Trial 34.1)(a) What document may be required to be produced 21.10(b) Response to notice 21.11(c) Not available in personal injury claims except

“special reasons” and court orders 21.12

7B(2) Interrogatories Part 22(i) When available and restrictions:-

- By order, at any stage 22.1- Not available personal injuries unless special reasons 22.1(3)- Application for order be accompanied by draft

interrogatories- Object to order to answer on specific grounds 22.2

(ii) Answers to interrogatories 22.3- How answer 22.3(2)- Insufficient answer, remedy available 23.4

(iii) If default 22.5(iv) Answers may be used as evidence 22.6

7B(3) Medical Examination and Inspection of Property Part 23(a) Medical examination

- Notice for medical examination 23.2- Expenses attending 23.3- Order for examination 23.4- Own expert attend 23.5

(b) Rehabilitation Assessment 23.7(c) Inspection of property

- Rules 23.8- Evidence Act, sections 53, 54

(d) Default 23.9 - Effect if plaintiff- Effect if defendant

(e) Expert evidence Part 31 Div 2(i) Expert and hospital reports to be served 31.18(ii) If served report it’s admissible in trial without jury 31.19(iii) If not served, report is not admissible 31.18(3)(iv) If expert required for cross examination:-

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- Party wishing to cross examine has to procure attendance 31.19(2)

- If expert is required but if not attend the report may not be tendered 31.19

- Expenses of expert 31.20- Subpoena on expert 31.21

(v) Expert witnesses to agree to code of conduct 31.23(vi) Supplementary experts’ reports 31.24

(f) Expert appointed by Court 31.28 etc

7B(4) Subpoenas & Notice to Produce Parts 33 & 34(i) Subpoena

- To attend to give evidence- Subpoena to produce

(ii) Form 33.3(iii) Service 33.5 & 33.6

- Personal, Service and Execution Process Act- Other methods- Conduct money 33.6(1)

(iv) Costs and expenses 33.11(v) Inspection 33.9(vi) Failure to comply 33.12(vii) Setting aside 33.4

- Botany Bay Instrumentation & Control v Stewart [1984] 3 NSWLR 98- R v Barnes [1997] 1 KB 258- R v Hurle-Hobb [1945] 1 KB 165- National Employer Mutual General Association v Waind & Hill [1978] 1 NSWLR 377- Commissioner for Railways v Small (1938) 38 SR(NSW) 564

(viii) Notice to Produce at hearing Part 34Available only to ensure production by a party.

7B(5) Admissions(i) Part 17 Procedure

(a) Voluntary admissions of fact 17.2(b) Notice to admit facts 17.3(c) Notice to admit documents 17.4(d) Admissions of documents discovered 17.5(e) Restricted effect of admissions 17.6(f) Judgment on admissions 17.7

(ii) Costs implications with Notices to Admit 42.8 & 9(iii) Section 70 C.P. Act

Informal proof and admissions

7B(6) Compromise & SettlementA. Compromise

(i) Compromise Part 20 Div 4Impact on costs Part 42 Div 3

(ii) Procedure as to compromise(a) Definition- final deadline

- period for acceptance(b) Making of offer 20.26

(iii) Acceptance 20.27- withdrawal of acceptance 20.28

(iv) Failure to comply with accepted offer 20.29(v) Disclosure of offer 20.30(vi) Compromise in certain types of proceedings S.Ct. 20.31

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(vii) Offer to contribute 20.32

B. Costs Impact Part 42 Div 3- Plaintiff makes offer, rejected, judgment no less

favourable than offer 42.14- Defendant makes offer, rejected, judgment as

favourable as or less than offer 42.15- Interest disregarded from day after offer made 42.16- Miscellaneous 42.17- Offer to contribute 42.17(4)

C. Calderbank lettersCalderbank v Calderbank [1946] Fam 93Costs, general power 42.1 & 42.2

D. Settlements(i) Power of court to determine questions about

compromises and settlements s.73(ii) Settlement of claims/proceedings by person under

legal incapacity ss.75 & 76- payment of money

8 HEARINGS & JUDGMENT PART 29

8(1)(a) Trial

(i) Beginning party etc. 29.1

(b) Requisition for jury 29.2(c) Generally 29.3 to 29.5

29.11 to 29.14(d) Order of evidence and address 29.6 (e) Where one party absent 29.7(f) Plaintiff’s application – dismissal 29.8(g) Defendant’s application – dismissal 29.9(h) Opposite party – judgment for want of evidence 29.11 (i) Dismissal – affect s91

8(1)(b) Assessment PART 3030.1 to 30.3

Damages including future at date of assessment 30.3

8(1)(c) Evidence PART 31

General

- At interlocutory hearing, by affidavit 31.2- At trial, statement of claim, oral (unless order) 31.1- Witness statements, requirements 31.4- Notices under s 67 or 99 Evidence Act 31.5- Evidence on commission 31.6- Earlier evidence, same proceedings 31.8

other proceedings 31.9

Experts called by parties rr 17 to 27Experts appointed by Court rr 28 to 35

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8(1)(d) Affidavits PART 35

- Cross-examination 35 r2- Who may make 35 r3- General requirements

- Paragraphs r4- Alterations r5- Annexures & exhibits r6- Filing r9

8(2) Judgments PART 36

- When take effect r4- Interest rate, s 101, schedule 5 r7- Possession of land r8- Generally part 36- Setting aside rr15, 16- Slip order r17

9 APPEALS PARTS 45 & 46

(a) Review and appeals within the Court 45(b) Appeals to the Court 46

10 ENFORCEMENT

A Consider the nature of the order sought to be enforced

B Especially, note procedures available for enforcement of judgment for payment of money, discussed as follows:

(i) Section 106, any one or more of

(a) Writ for the levy of property(b) A garnishee order(c) Supreme Court or District Court, a charging order

(ii) Order for examination, s 108

(iii) Additional methods Supreme Court part 40 r 2(a) Appointment of a receiver of the income of the property of debtor(b) Sequestration of the debtor’s property, (note 40.3)

(iv) For individual , procedure under the Bankruptcy Act (Cth) For corporation, winding up procedure under Corporations Law

(v) NOT available:

- No arrest on mesne process, s 129by process of attachment of the person committal,any writ of capias ad satisfaciendum s 130

(vi) Stale judgments (12 years) require leave s 134

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C Enforcement – doing or abstaining from any act

Supreme Court & District Court, Part 40.6, enforced by

CommittalSequestration including officer of corporationNote especially, service prior 40.7

D The specific procedural requirements for each of the procedures.

11 CASE MANAGEMENT

A The Act

(i) Section 15 envisages practice Notes (still under review)

(ii) Section 56 – overriding purpose

“just, quick and cheap resolution of real issues”- To achieve this, case management s 57- Dictates of justice s 58- Elimination of delay s 59- Proportionality of costs s 60

(iii) Directions - generally s 61

- Conduct of hearing s 62- Irregularities s 63

(iv) Other powers of the Court ss 64 – 73

B The Rules

(i) Case Management Part 2 (ii) Electronic case management Part 3 (iii) Costs Part 42 & s 99

12 LESS LITIGIOUS APPROACHES TO CONTENTIOUS MATTERS - ADR

A Many methods available, with varying attributes - See comparison table Supplementary Materials, pp131- 133

B Within the Court process:

(i) Mediation Part 4, ss 25 – 34 & Part 20 Rules

Mediation defined s 25Court may order referral (note part 20 r 3) s 26Duty to participate in good faith s 27Costs of mediation s 28Giving effect to any agreement arising s 29Privilege s 30Confidentiality s 31Mediator s 33

Note: Mediation other than under Part 4 of the Act is available s 34

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(ii) Arbitration of proceedings Part 5, ss 34 – 55 & Part 20 Rules

C Consider advantages and disadvantages, arising from resort to ADR

- Refer article and tables at pp 128 – 133 Supplementary Materials- Rogers A, The Managerial and Interventionist Judge (1993) Journal of Judicial

Administration, 96 – 110- Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 342, PER Kirby P at 347-

351- People v Snyder 129 Misc 2d 137

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