Civil procedure [Fourth edition.] 9780455241074, 0455241074

Table of contents :
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Citation preview

lawbook co. nutshell

civil procedure by

BRIDGET CULLEN BA (magna cum laude), JD, MA, LLB, PhD

Member Administrative Appeals Tribunal

FOURTH EDITION

LAWBOOK CO. 2018

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Published in Sydney by Thomson Reuters (Professional) Australia Limited 19 Harris Street, Pyrmont, NSW 2009 First edition...............1999 Second edition..........2009 Third edition.............2013 Fourth edition...........2018

9780455241074 (pbk.) © 2018 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Product Developer: Elizabeth Gandy Edited and Typeset by Newgen KnowledgeWorks Pvt. Ltd., Chennai, India Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org

Author’s Acknowledgment Thank you to all of the law students I have had the pleasure of teaching over the last 20 years. You have made teaching litigation an entirely enjoyable endeavour, and kept me on my toes.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

And, a special thanks to my loving husband, Andrew, and my children Nicholas, Daniel and Meghan. You are my everything. DR BRIDGET CULLEN Member, Administrative Appeals Tribunal

Table of Contents Author’s Acknowledgment.......................................................... v

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1. Fundamental Principles...................................................... 1 Introduction.........................................................................1 A Brief History of Civil Procedure........................................2 Sources of Law......................................................................2 The Fundamental Principles.................................................5 Overview of a Simple Action..............................................12 2. Case Management ............................................................ 13 Introduction.......................................................................13 Directions Hearings............................................................14 Caseflow Management Principles.......................................14 Caseflow Management Schemes........................................16 3. Jurisdiction ....................................................................... 22 Introduction.......................................................................22 The State and Territory Courts...........................................23 The Commonwealth Courts...............................................25 Statutory Extension of Jurisdiction....................................27 4. Parties and Joinder..........................................................  32 Particular Parties.................................................................32 Joinder................................................................................40 Interpleader........................................................................47 5. Limitation Periods............................................................. 48 Introduction.......................................................................48 Common Limitation Periods..............................................49 Calculating Time.................................................................53 Extension of Limitation Periods.........................................57 6. Commencing Proceedings............................................... 60 Originating Proceedings.....................................................60 vii

viii 

 Civil Procedure

7. Service and Appearance................................................... 65 Service.................................................................................65 Appearance.........................................................................68

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

8. Pleadings............................................................................ 71 Introduction.......................................................................71 Statement of Claim.............................................................73 Defence...............................................................................75 Further Pleadings................................................................79 Counter-​​​claims....................................................................80 Third and Subsequent Parties............................................80 Particulars...........................................................................81 9. Interlocutory Applications...............................................  84 Introduction.......................................................................84 Procedure...........................................................................85 Common Types of Interlocutory Orders............................86 Affidavits.............................................................................89 10. Ending Proceedings Early ............................................. 92 Introduction.......................................................................92 Dismissal for Want of Prosecution......................................93 Default Judgment...............................................................95 Summary Judgment............................................................97 Judgment on Pleadings or Admissions.............................100 Discontinuance.................................................................101 11. Errors and Amendment................................................. 102 Introduction.....................................................................102 Irregularities.....................................................................102 Time and Delay.................................................................103 Amendment......................................................................106 12. Discovery....................................................................... 111 Introduction.....................................................................111 Discovery of Documents..................................................115 Interrogatories..................................................................120 Inspections and Examinations.........................................125 Notice to Admit.................................................................125

Table of Contents 

 ix

Non-​​​party Discovery.........................................................126 Other Forms of Discovery.................................................126 Objections Relevant to All Forms of Discovery................126

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

13. Settlement...................................................................... 133 Introduction.....................................................................133 Payment into Court..........................................................134 Calderbank Offers.............................................................134 Formal Offers to Settle.....................................................135 Settlement.........................................................................136 14. Trial and Judgment........................................................ 139 Introduction.....................................................................139 Preparing for Trial.............................................................140 Mode of Trial....................................................................141 Venues, Trial Dates and Adjournments............................143 Verdict and Judgment.......................................................147 15. Costs............................................................................... 149 Nature of Costs.................................................................149 Types of Costs...................................................................150 The Incidence of Costs.....................................................151 Security for Costs..............................................................152 Common Costs Orders.....................................................154 Taxation of Costs..............................................................156 16. Appeals........................................................................... 158 Introduction.....................................................................158 Lodging an Appeal............................................................159 Stay of Decisions...............................................................160 Leave to Appeal................................................................160 Nature of a Re-hearing......................................................161 Costs of Appeals...............................................................164 17. Enforcement................................................................... 165 Introduction.....................................................................165 Enforcing Money Judgments............................................167 Enforcing Non-​​​money Judgments....................................170 Interstate and Overseas Judgments..................................172

x 

 Civil Procedure

18. Alternative Dispute Resolution.................................... 173 Introduction.....................................................................173 Negotiation.......................................................................174 Mediation..........................................................................180 Arbitration.........................................................................181

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Index.......................................................................................183

1 Fundamental Principles Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[1.10] Civil procedure is a general term encompassing the

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

2 

 Civil Procedure

A Brief History of Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[1.20] Local courts or communes undertook the determina-

tion of disputes in England during the Anglo-​Saxon period. In 1066, following the conquest of the Normans, local feudal courts developed. In order to increase power and control the King, relying upon the royal prerogative to keep the peace and dispense justice, established a jurisdiction for what would ultimately be the royal courts of justice. A key tool in this expansion of centralised justice was the issuing of writs. The writ was originally a royal command by the King (in writing –​hence the term “writ”) to come before him or his council. As the system developed, the pressure of work required courts of justice to be established. Questions of law were determined by the judges and questions of fact heard by a judge with a jury from the area. The procedure which originally developed was very rigid, with particular forms of writ for different types of action. This in turn shaped the nature of the substantive law. The system of Equity evolved to overcome the inadequacies of the rigid common law system. The Chancellor was referred many of the “Bills” by the King, and eventually the Court of Chancery developed. Long and complex systems of pleading developed, with the system effectively running parallel with the system of common law courts. Ultimately, the common law and equitable courts were merged by the Judicature Act 1873 (Imp).

Sources of Law [1.30]  In Australia, no State or Territory, nor the Commonwealth,

has codified the law relating to civil procedure. There are a number of disparate sources of law applicable in the various courts.

Statutes [1.40] Statutes are the primary source of civil procedure in

Australia as each court is established by statute, for example, the various State and Territories’ Supreme Court Acts, District

Ch 1: Fundamental Principles 

 3

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

or County Court Acts and Magistrates’ or Local Court Acts, etc. In addition, there are statutes dating back to antiquity that have had significant impacts on procedure, such as the Common Law Procedure Acts, Judicature Acts and Equity Acts. In most States and Territories, much of this legislation has been re-​enacted in a Supreme Court Procedure Act of some form. However, there remain Jury Acts, Crown Proceedings Acts, Limitation of Actions Acts, and many more statutes having specific procedural content (eg, the motor vehicles’ insurance legislation which governs personal injuries actions arising out of motor vehicle collisions).

Rules of Court [1.50]  The “rules” of the various courts govern the bulk of the

day-​ to-​ day matters important to civil process. In this book, where a specific citation is not otherwise given, references are to the rules of court applicable in the stated jurisdiction. For example, Qld, r 293 refers to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld). The rules in English courts are subordinate legislation enacted by a committee of judges from the court. In Australia, while the judges still have effective control over the rules, they are usually enacted as delegated legislation of the Minister, or even legislation of the Parliament. It seems that this is a response, at least in part, to a relatively strict application of the principle of separation of judicial power adopted in Australia as part of the Westminster system of government. Rules of court are, however, considered to be only procedural law and not substantive law. Procedural law is confined to the manner or means by which legal rights and duties may be enforced. The distinction between “substance” and “procedure” becomes quite blurred and difficult at times.

Judicial Precedent [1.60]  As with other areas of the law in the Australian system,

there is a significant body of case law explaining and applying

4 

 Civil Procedure

the statute law and rules. In addition, the case law has developed a large number of underlying principles that apply. It is rare to pick up a volume of the law reports without finding cases concerning issues of procedure.

Practice Directions

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[1.70]  The courts issue practice directions from time to time,

which vary in significance from the notification of the change of address of a firm of solicitors (to relieve them of the burden of filing a notice of change of address in every matter for which they are on the record) to the House of Lords Practice Statement of 1966, when the House of Lords announced that it would no longer consider itself bound by its previous decisions. Most commonly, practice directions provide details of how the court will deal with its work, particularly in matters where no clear procedure is laid out in the court rules. Increasingly, there are practice directions that relate to the way in which the court will deal with modern technology, such as the electronic filing of documents, or taking of video link evidence.

Forms and Precedents [1.80]  The court rules and practice directions prescribe a vast

array of forms for use at each stage of proceedings. With the computer age, stricter compliance with layout and typeface requirements is now being enforced by the registrars of the courts to ease processing of documents. In addition to the array of prescribed forms, there are a number of substantial volumes containing precedent pleadings, interrogatories and the like. While these texts do not form part of the actual law in the area, they are regularly relied upon by practitioners and the courts for drawing documents: see for example Azize, El Khouri and Finnane’s Pleading Precedents (Lawbook Co., Australia) and Bullen and Leake and Jacob’s, Precedents of Pleading (Sweet & Maxwell, London). There are

Ch 1: Fundamental Principles 

 5

also a range of online precedents databases, such as Thomson Reuters Australian Commercial Precedents.

Inherent Jurisdiction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[1.90]  The inherent jurisdiction of the court is a peculiarly English

doctrine. The inherent jurisdiction of the court does not flow from a particular statute, but from the very nature of the court as a court of law. The essential nature of a court is that it must have the power to maintain its authority and regulate its processes to prevent them from being abused. Thus, the inherent jurisdiction provides a basis for the law of contempt. Inherent jurisdiction is exercisable summarily, that is, without a formal trial. While inherent jurisdiction, in its widest sense, is confined to superior courts (such as the High Court, Supreme Courts, Federal and Family Courts), inferior courts (such as the District and Magistrates’ Courts) nonetheless exercise a limited inherent jurisdiction.

The Practices of the Court [1.100] Unfortunately, not every detail as to the operation of

a court may be set out in the texts of the various sources of law. There remain numerous practices of courts and judges at particular centres as to the minutiae of court business. These practices will only be learned from other practitioners and attendances upon the particular courts.

The Fundamental Principles [1.110] While the relatively strict doctrine of separation of

judicial power adopted by the Commonwealth Constitution (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254) does not apply at the State level, the nature of judicial functions remains fundamentally different to other government functions. This difference lies not only in the finality and enforceability of the decision made, but also by the different process of decision making.

6 

 Civil Procedure

A number of basic or fundamental principles of civil process may be identified, which distinguish civil procedure from other forms of government function.

The Principle of Finality

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[1.120]  The decision of the hearing judge or jury is considered

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

These principles are discussed at greater length in the nutshell on Evidence.

The Principle of Procedural Privity [1.130]  This is the principle which, more than any other, appears

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

Ch 1: Fundamental Principles 

 7

The Principle of Procedural Fairness [1.140]  The principles of procedural fairness (or natural justice as

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

they were formally termed) are taken to their very pinnacle by the system of civil procedure in the supreme courts: it is the implementation of the principle of the right to be heard taken to its fullest extent. Thus, the rules of service are strict to ensure notice of claims. The rules of pleading and discovery are extensive, to ensure that a party is appraised of precisely the case to be met. The rules for trial ensure that each party has a full and equal opportunity to put its case, and comment on the case of their opponent. The principle that the decision maker must be free of bias is also taken to its highest form. No actual bias need be established before a judge will be disqualified from hearing a case. The test applicable to the judiciary is simply whether “a fair-​ minded observer might entertain a reasonable apprehension of bias or prejudgment”: Livesey v New South Wales Bar Assoc [1983] HCA 17; see also Johnson v Johnson (2000) 201 CLR 488, affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

The Adversarial Principle [1.150]  In an adversarial system, the parties, not the court, must

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

8 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

The Principle of Orality [1.160]  The importance of the jury to the English system of

justice, and hence to the Australian system, has resulted in most trials being heard orally. Orality at trial is a significant feature of the justice system and facilitates a number of the other fundamental principles. For example, orality allows for complete publicity as anyone can sit and listen to the trial and hear all that the jury will hear. Orality also allows for the protection and security of our civil rights, by ensuring that a judge

Ch 1: Fundamental Principles 

 9

may determine the veracity of a witness by hearing them in person.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

The Principle of Publicity [1.170]  The importance of public justice cannot be overstated.

Bentham stated that: “[t]‌he grand security of securities is publicity –​exposure –​the completest exposure for the whole system of procedure –​whatever is done by anybody, being done before the eyes of the universal public”. If public hearings are not maintained, the courts will not be open to “public and professional scrutiny and criticism, without which abuses may flourish undetected”: Russell v Russell (1976) 134 CLR 495. As Lord Hewart LCJ pointed out, it “is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256. However, the competing considerations become difficult to discern in some cases, such as the AIDS sufferers who wished to sue anonymously in Queensland. The judgment of the Court of Appeal contains an extensive discussion on the issue: J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10. The principle also leads to other important ramifications: for example, see the famous article by Owen Fiss, Against Settlement 93 Yale Law Journal 1073 (1984).

10 

 Civil Procedure

The Principle of Disclosure [1.180]  The parties must disclose the nature of their case in the

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

pleadings and particulars. The parties’ documents must also be disclosed in the discovery phase of preparation for trial. A party may seek discovery of the documents of a person who is not a party to the proceedings. In addition, a party may interrogate (by written questions) another party as to the facts of the claim, particularly for purposes of establishing whether they are a proper defendant to the claim. Discovery was an invention of the Court of Chancery, said to “scrape the conscience of the defendant … so as to surround a slippery conscience and to stop up every earth”. As Sir Jack IH Jacobs stated in his Hamlyn Lecture: “The process of discovery operates as a powerful procedure instrument to produce fairness, openness and equality in the machinery of English civil justice. It enables each party to be informed or to be capable of becoming informed of all the relevant material evidence, whether in the possession of the opposite party or not; it ensures that as far as possible there should be no surprises before or at the trial; it reveals to the parties the strengths or weakness of their respective cases, and so produces procedural equality between them and it encourages fair and favourable settlements, shortens the lengths of trials and saves costs”.

The Jury System [1.190] Juries are now relatively uncommon in civil trials in

Australia. However, the option of trial by jury in common law (not equitable) claims remains in most jurisdictions, although it has been excluded in many personal injuries areas. The earliest forms of a jury are to be found in an ordinance of Ethelred II (c 1000CE). By the 15th Century, all evidence had to be given in court, and witnesses were no longer part of juries. In 1607, it was clearly established that the jury was not bound to decide cases in accordance with the wishes of the King: Bushell’s case (1670) UK.

Ch 1: Fundamental Principles 

 11

However, the jury system has shaped the civil justice process. The use of the jury system has resulted in a clear demarcation between trial and pre-​trial procedures which is central to civil procedure today. Generally, the trial consists of one continuous and uninterrupted hearing before the court where the parties must present all of their evidence and arguments. Such a distinction is not so clear in the inquisitorial systems. The jury system has also resulted in the clear distinction between questions of law and fact which remains central to appeals.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

The Obligation to Provide Reasons [1.200] There is an obligation placed upon judges to provide

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

The Incidence of Costs [1.210] The usual rule for costs is that costs follow the event;

that is, the unsuccessful party pays the costs of the successful party: Laotudis v Casey (1990) 170 CLR 534. The power to make a costs order is a statutory power and is not founded upon the inherent powers of the court, save where it is an incident of the court power to control proceedings before it (a lack of power to order costs continues in many jurisdictions in the United States). Court costs can become greater than the amount of the claim, particularly in the lower courts. In early stages, this is likely to induce settlements, and in later stages becomes an impediment to settlement.

12 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Overview of a Simple Action [1.220] 

• Originating process and statement of claim issued and served on defendant • Defendant enters an appearance and files a defence • Plaintiff delivers reply and pleadings close • Plaintiff and defendant discover (disclose) to each other all documents relevant to the action • Plaintiff and defendant may deliver interrogatories to each other (series of written questions requiring sworn response) or may deliver notices to admit facts or documents • Parties may engage in alternative dispute resolution • Action is entered for trial and trial date allocated • Witnesses are subpoenaed • Trial takes place • Judgment is entered • Costs are determined • Enforcement of judgment takes place.

2 Case Management Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[2.10] In recent years, there have been a number of strong

and sustained criticisms of the civil justice system in Australia, England and the United States. These criticisms fall into three general categories: • access to justice; • inefficiency; and • delay. Access to justice is the principle that all citizens should have open to them a reasonable avenue to pursue and enforce their rights. Often, this results in two areas of dispute: the extent of legal aid funding available and the complexity of the legal (and, in particular, litigation) system. Unfortunately, no great increases in legal aid have been forthcoming from government, nor is greater funding likely in the foreseeable future. The more common result is attempts to simplify court procedures and provide informal tribunals to hear and determine disputes (such as small claim tribunals). However, it must be remembered that when more professional and judicial effort is applied, it is more likely that the resulting decision will be just: see generally Zuckerman, Quality and Economy in Civil Procedure (1994) Oxford J Leg Studies. The costs of running courts have come under increasing scrutiny. Much of a judge’s time is seen to be wasted by unnecessary interlocutory applications and trials that settle on the morning they are to commence. These problems, and the lack of judges, also lead to delays. The legal profession is also seen 13

14 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Directions Hearings [2.20]  In all cases, the parties may apply to the court for direc-

tions as to the preparation or the conduct of the matter. In multi-​party cases, directions hearings are often important to ensure that the interlocutory steps are undertaken in an orderly fashion.

Caseflow Management Principles [2.30]  The generally accepted key features of caseflow manage-

ment involve application of the following: • early judicial control; • continuous judicial control; • short scheduling of the events; • management of conflict in lawyers’ schedules; and • certainty of events occurring, even if this involves use of the “principle of the dark courtroom”.

Ch 2: Case Management 

 15

There are effectively three basic concepts that have been employed by the courts to meet the principles set out above: (1) continuous control by a judge monitoring each case (each judge having a “docket” of cases); (2) requiring the parties to report to the court at various milestones in the progress of an action; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(3) diversionary schemes requiring the parties to engage in alternative dispute resolution (ADR) at early stages. Usually a combination of these concepts is employed in order to make better use of the resources of the courts. However, caseflow management also requires sanctions when the parties fail to comply with the management systems or directions. Not infrequently, courts are asked to consider late amendments to a party’s claim or defence in circumstances where that party has failed to comply with case management directions. In considering whether to permit such an amendment, following the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the judge must consider all factors relevant to the exercise of the power to permit an amendment in making a decision. These factors include the extent of any delay resulting from the amendment; any wasting of costs; any case management concerns; the importance of the amendment; the potential for prejudice to other parties; any explanation for the late amendment; and, importantly, how far the litigation has already progressed at the time of the amendment. It is clear, following Aon, that a party will not automatically be entitled to amend their pleadings at any stage. As a consequence of this decision, it is important that litigants take steps to ensure that their cases are properly plead at an early juncture, in order to avoid any need to seek leave to make late amendments to pleadings. In Aon, the High Court effectively overruled the decision it had made in 1997, in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In JL Holdings, the High Court allowed an appeal from a decision of the Federal Court refusing the defendant’s application to amend its pleadings six months before the

16 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

listed trial date. The High Court established the principle that although case management is a relevant consideration, justice is the paramount consideration. Providing that other parties could be compensated for any costs thrown away, JL Holdings stood for the proposition an arguable amendment to a pleading could be made at any time. This is no longer the case. All seven judges in Aon held that the JL Holdings principle was inconsistent with earlier High Court decisions and should not apply in future. A party may now bring an application seeking to amend a pleading, but “particularly if litigation is advanced”, limits will be placed upon the granting of leave to amend by the court.

Caseflow Management Schemes [2.40] Each jurisdiction has implemented some form of case

management scheme, varying from the need to file a certificate stating that a case is ready for trial (the traditional system) to assigning each case to a managing judge from the time the case is filed.

High Court [2.50]  The High Court controls its workload through the require-

ment that appellants obtain “special leave” to appeal. In applications for special leave, the applicant must file and serve, within 28 days after filing an application, a summary of argument: High Court Rules 2004 (Cth), r 41.05.1. A respondent must then file and serve its summary of argument within 21 days after service of the applicant’s summary of argument: High Court Rules 2004 (Cth), r 41.06.1. Parties are only given a limited opportunity to present oral argument, and fixed dates for hearings are set by the Court.

Federal Court [2.60] The Federal Court adopts an individual docket system.

As cases are filed they are assigned to a judge to supervise the

Ch 2: Case Management 

 17

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Australian Capital Territory [2.70]  In the ACT, cases are managed through a docket system.

The Court may, at any stage of a proceeding, on application by a party or on its own initiative, make directions about the conduct of proceedings: (ACT), r 1401. The plaintiff is required to serve a set of proposed directions about conduct of the matter in conjunction with service of the statement of claim. The parties should endeavour to agree on the directions. Parties must attempt ADR in advance of the court listing the matter for final hearing. The court endeavours to allocate a date for trial between 9 and 11 months after commencement of the proceedings: Practice Direction 2 of 2014.

New South Wales [2.80]  Different techniques are adopted for case management in

different courts in NSW.

District Court [2.90]  In the District Court, litigants are not to commence an

action unless they are ready to proceed, with a view to listing the matter for hearing within 12 months of commencement.

18 

 Civil Procedure

Supreme Court [2.100]  The Supreme Court in NSW is comprised of divisions,

namely the Court of Appeal, the Court of Criminal Appeal, the Common Law Division and the Equity Division. Each division maintains their own registrars, who are, along with the judge, responsible for case management.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Cases of similar character are placed on “lists” and the lists are then governed by specialised Practice Notes, which set out the applicable requirements. Each list is managed by a judge, in conjunction with a registrar. The relevant specialist lists in the Common Law Division are the: • Administrative Law List; • Defamation List; • Possession List; and • Professional Negligence List. All other proceedings are allocated to the General Case Management List. In the Equity Division, the specialist lists include the: • Admiralty List; • Commercial List; • Corporations List; • Revenue List; • Probate List; • Protective List; and • Technology and Construction List.

Commercial and Construction Lists [2.110] Whilst each list is subject to the requirements of the

applicable Practice Note, in the Commercial and Construction List, the rules and practice notes reject traditional forms of pleading, in favour of an “Initiating Statement” by a plaintiff and

Ch 2: Case Management 

 19

a “Response” by a defendant. These documents are required to set out in summary form: • the nature of the dispute; • the issues which are likely to arise; • the contentions and response to contentions; • the questions that either party considers to be appropriate for referral to a referee for report; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• identification of all attempts to mediate. Matters in these lists are actively managed, and may include a range of directions, such as the use of a single expert by both parties, timetables for preparation, directions relating to disclosure, or referral for mediation.

Victoria [2.120]  In Victoria, the Civil Procedure Act 2010 provides the court

with extensive powers to manage the litigation before it. In the ordinary civil list, Practice Note No 1 of 1996 [1997] sets out the manner by which cases are to be managed. Additionally, the court has introduced a number of specialist lists managed by particular judges including the Long Cases List, Commercial List, Building Cases List, Valuation List, Major Torts List, Family Provision List, Corporations List, Intellectual Property List, and Admiralty List. A directions hearing is held early in the matter on any of the specialist lists, and appropriate direction given. The court may also refer cases to mediation or arbitration if the parties consent.

South Australia [2.130] South Australia operates a system of formalised case

management, with the objective of resolving cases that are likely to settle: IPA Manufacturing Pty Ltd v Industrial Pyrometers [2001] SASC 224. The parties must prepare a litigation plan in advance of a directions hearing, held approximately 8 weeks after the

20 

 Civil Procedure

defendant has filed a defence: (SA), r 1301. In cases not deemed suitable for a litigation plan, the parties must arrange and attend a settlement conference: (SA), r 130. After the settlement conference, a party may apply for a trial date by filing a certificate of readiness: (SA), r 120A.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

There are special management rules applicable to cases on the “Long and Complex Trial List” and cases on this list are assigned for pre-​trial management where matters relating to pleadings, disclosure, experts, and alternative dispute resolution may (amongst others) be addressed. The court may refer a matter to mediation, or for trial by an arbitrator: Supreme Court Act 1935 (SA), ss 65-​66.

Western Australia [2.140] Cases are entered for trial in WA when the pleadings

close. Case management is regulated by O 1, rr 4A, 4B and O 4A, as well as the Consolidated Practice Directions of 2009, “Case Management”. Complex matters may be entered in the Commercial and Managed Cases List, where they will be managed by a supervising judge. The court may hold status, management, evaluation, and listing conferences as necessary and also has the power to order the parties to attend mediation.

Queensland [2.150]  In Queensland there is an emphasis on the ADR process

to divert cases from the courts as part of the pre-​trial management process: Civil Proceedings Act 2011 (Qld). The court may refer a case to Mediation or Case Appraisal at any stage with or without the consent of the parties: ss 43-​45. A supervised case list and specialised commercial list are also maintained for more complex cases. Family provision proceedings must have regard to Practice Direction No 8 of 2001, which encourages an early resolution, following consent of the parties, and with minimal appearances.

Ch 2: Case Management 

 21

Tasmania [2.160] Case management in Tasmania applies to particular

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

classes of proceedings. These include proceedings commenced by writ, other than personal injury proceedings; proceedings where summary judgment was refused; proceedings where summary judgment was given but stayed pending hearing on a counter-​claim; and where requested by a party: (Tas), r 414. Where case management applies, the court will convene a directions hearing. If a matter falls outside the class of proceedings to which the case management practice direction applies, the parties simply file a certificate of readiness when the matter is ready for trial and a pre-​trial compulsory conference has been held: (Tas), rr 541-​542, 544. There is power for the parties to seek directions prior to signing a certificate.

Northern Territory [2.170]  Case management proceeds in accordance with Practice

Direction 6 of 2009. Within 21 days after an appearance is filed, the court holds a directions hearing: (NT), r 48.04. At this hearing, the proceeding may be referred for mediation or a settlement conference, or a timetable fixed for trial: (NT), rr 48.04, 48.06. Additionally, Practice Direction No 4 of 2004 requires a further directions hearing to be held 3 months after the pleadings close, at which parties present a “litigation plan”. The plan must set out the legal and factual issues raised, what interlocutory steps are necessary, the evidence to be called, and must include a timetable and suggestions to shorten the proceeding. Additionally, parties must identify matters appropriate for mediation, and an estimate of costs to be incurred. The court may also direct parties to attend a settlement conference ((NT), r 48.12) or mediation: (NT), r 48.13.

3 Jurisdiction Introduction [3.10]  In considering jurisdiction, there remain two questions Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

which must be asked to determine if a court has jurisdiction: (a) is the action within the geographic jurisdiction of the court; and (b) is the action within the subject matter jurisdiction of the court? As courts are an arm of the state, their jurisdiction is necessarily determined by the boundaries of the state, the constitution of the state, any interstate agreements and restrictions or limitations in the legislation establishing the court. In actions in personam (against a person) service upon the defendant in the state traditionally founds the court’s jurisdiction. In actions in rem (where the action is with respect to a thing, such as a ship, and will effectively be against anyone with an interest in the thing) the thing must be within the jurisdiction of the court. The concept of jurisdiction is rooted in the power of the courts to enforce their judgments. Hence the starting point is presence within the jurisdiction, as this will enable the bailiffs to physically enforce the judgment if need be. Thus, service of originating process on the defendant while he or she is in the geographic jurisdiction, founds the courts jurisdiction: Laurie v Carroll (1958) 98 CLR 310. However, this has slowly been extended over time and the principle now applies even if the presence is fleeting, such as attendance at a race meeting: Maharanee of 22

Ch 3: Jurisdiction 

 23

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Baroda v Wildenstein [1972] 2 QB 283. Importantly, superior courts have a general presumption of jurisdiction, and any finding in this regard must be the subject of appeal if it is to be disputed, however an inferior court’s jurisdiction may be changed by collateral proceedings (such as an injunction of the Supreme Court): DMW v CGW (1982) 151 CLR 491. In addition to geographic jurisdictional limits, there are also subject matter limits imposed by the legislation establishing many courts. With regard to inferior courts, the most significant restriction is usually a monetary limit. The availability of inferior courts has the practical effect of reducing the jurisdiction of higher courts, as a matter that may be heard by a lower court will be transferred to that court by a higher court. Not all subject matter issues are so simple, and often the federal and state jurisdictions will overlap. The various court rules and legislation have significantly extended the court’s jurisdiction where there is some connection between the subject matter of the action and the court’s geographic jurisdiction. Within Australia, the Commonwealth has provided a statutory scheme for the service of a person anywhere in Australia: Service and Execution of Process Act 1992 (Cth). In addition, the various States and the Commonwealth have entered into a cross-​ vesting scheme, discussed below under “Extensions of Jurisdiction”. The question of jurisdiction will also be relevant after trial, if an appeal is to be pursued, so as to ensure that the correct appellate tribunal is chosen.

The State and Territory Courts [3.20] The various State and Territory Supreme Courts are

invested with such jurisdiction as is necessary to do justice, or with the same jurisdiction as the English superior courts prior to the Judicature Act 1867 (Imp): see Australian Capital Territory (Self Government) Act 1988 (Cth); Supreme Court Act 1970 (NSW); Supreme Court of Queensland Act 1991 (Qld);

24 

 Civil Procedure

Supreme Court Act 1979 (NT); Supreme Court Act 1935 (SA); Tas: Australian Courts Act 1828 (Imp); Constitution Act 1975 (Vic); Supreme Court Act 1935 (WA).

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Each State also has a Magistrates Court with a corresponding monetary (as well as subject matter) jurisdictional limit. Most States have an intermediate court of limited jurisdiction staffed by judges with jurisdictional limits that fall between the limits applicable in the Magistrates and Supreme Courts. In addition to the traditional courts, there are a plethora of specialist tribunals or courts to deal with matters such as anti-​ discrimination, planning and environment, and the valuation of land for rates, land tax and compulsory acquisition. Many of the specialist tribunals are constituted by judges of the common law courts commissioned for that purpose. In some States, the jurisdiction of the inferior courts is also divided into various geographical districts. Thus, the action must be connected with the particular geographic district of the Magistrates Court where the proceedings are to be tried. However, in most instances, actions may be transferred between courts and court districts if the geographic or subject matter requirements are not met: Esanda Finance Corp Ltd v Meehan [2008] QDC 318. The State courts may also exercise the judicial power of the Commonwealth if it is conferred on the State court by the Commonwealth parliament: Constitution 1901 (Cth), s 77(iii). This conferral has occurred via the Judiciary Act 1903 (Cth), s 39, which invests the State courts with jurisdiction over all matters where the High Court has original jurisdiction. Thus, State courts have federal jurisdiction in: (a) all matters that the High Court has original jurisdiction to determine under s 75 of the Constitution 1901 (Cth); and (b) matters where the High Court may be given original jurisdiction under s 76 of the Constitution 1901 (Cth). Importantly, Territory courts are not federal courts, as they are not established under Ch III of the Constitution 1901 (Cth),

Ch 3: Jurisdiction 

 25

but under s 122 of the Constitution 1901 (Cth) as part of the Territories power: Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591.

The Commonwealth Courts

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[3.30] There are three Commonwealth courts that regularly

hear civil litigation: the High Court of Australia, the Federal Court and the Family Court. The jurisdiction of all three courts is governed by the Constitution 1901 (Cth) and the relevant Act of Parliament. The Federal and Family Courts are established by the Commonwealth pursuant to the power to create federal courts in s 71 of the Constitution 1901 (Cth) and they receive jurisdiction pursuant to s 77.

High Court of Australia [3.40]  The High Court is established by the Constitution 1901

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

26 

 Civil Procedure

(c) suits by the Commonwealth against a State; (d) suits between States and the Commonwealth; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Federal Court of Australia [3.50]  The Federal Court is established by the Federal Court of Australia Act 1976 (Cth). The Court is not one of general jurisdiction and is limited to matters where jurisdiction is specifically conferred by a statute: Federal Court of Australia Act 1976 (Cth), s 19 and Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150. The major areas of jurisdiction are: Native Title, Trade Practices, Corporations, Admiralty, Bankruptcy and Discrimination.

However, s 32 of the Federal Court of Australia Act 1976 (Cth) extends the Federal Court’s jurisdiction to matters associated with a matter within the Court’s jurisdiction: Commonwealth v Lyon (2003) 133 FCR 265. The Court has the power to determine whether it has jurisdiction in a matter before it: Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629.

Family Court of Australia [3.60] The jurisdiction of the Family Court of Australia is

defined by the Family Law Act 1975 (Cth) and the Child Support legislation. Additionally, some matters arising under

Ch 3: Jurisdiction 

 27

the Marriage Act 1961 (Cth) and Bankruptcy Act 1966 (Cth) also confer jurisdiction on the Family Court. As most matters before the Family Court will rarely involve associated common law claims, difficulties rarely arise. To the extent that claims may be outside the ambit of the Courts’ statutory jurisdiction, this will be resolved by reliance upon the cross-​vesting scheme (discussed below).

Statutory Extension of Jurisdiction Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[3.70]  The most significant aid to jurisdiction is the concept that

a defendant may “submit” to the jurisdiction of the court. This can be done: (a) by entering an unconditional appearance or defence; or (b) by entering into an agreement to submit to the jurisdiction.

Statutory Extensions of Jurisdiction within Australia [3.80] There are two significant statutory aids to establish-

ing jurisdiction in Australia: the cross-​vesting scheme and the Service and Execution of Process Act 1901 (Cth).

Cross-​vesting [3.90]  In 1987, all of the States and the Commonwealth enacted

a Jurisdiction of Courts (Cross-​vesting) Act 1987 effectively conferring jurisdiction onto the Federal Court, Family Court and the other Supreme Courts in accordance with the Act. The effect was that all superior courts in Australia had the jurisdiction of all other superior courts “cross-​vested” to them: Gould v Brown (1998) 193 CLR 346. The object of the scheme was to: (1) establish cross-​vesting, without detracting from the jurisdiction of the existing courts;

28 

 Civil Procedure

(2) to ensure, as far as possible, that matters are commenced in the court that would have had jurisdiction apart from the scheme (the most appropriate court); and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(3) to permit the transfer of matters to the appropriate court where commenced in an inappropriate court. Following the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511, the High Court held that these cross-​vesting laws, insofar as they conferred State jurisdiction onto the Federal courts, were constitutionally invalid. However, the cross-​vesting laws are valid insofar as they confer Federal jurisdiction on State and Territory Supreme Courts. These portions of the cross-​ vesting laws remain intact; following Wakim, in 1999, all of the States passed a Federal Courts (State Jurisdiction) Act 1999, which treats Federal Court or Family Court judgments as single judge State Supreme Court judgments. However, there is some uncertainty as to the effect of the Wakim decision in the ACT and NT, as these jurisdictions have not passed legislation that corresponds to the other State’s Federal Courts (State Jurisdiction) Acts 1999. Section 4 of the Jurisdiction of Courts (Cross-​Vesting) Act 1987 (Cth) invests the State Supreme Courts with federal jurisdiction, and confers it upon the Supreme Courts of the ACT and NT in circumstances where the State Supreme Courts would not have jurisdiction over a matter, but the Federal or Family Court would. While there is no formal onus of proof on a particular party, there will effectively be an onus on the party requesting the transfer: Bankinvest AG v Seabrook (1988) 14 NSWLR 711. No appeals are available from a decision as to cross-​vesting, thereby confirming that the matter is not to become a central issue in proceedings. It is for the court to determine the most appropriate forum to hear the proceedings: James Hardy & Coy Pty Ltd v Barry (2000) 50 NSWLR 357. Section 5 of the Jurisdiction of Courts (Cross-​Vesting) Act 1987 (Cth) provides for the transfer of actions. Section 5(1) provides for the transfer of proceedings from the Supreme Court to

Ch 3: Jurisdiction 

 29

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Service and Execution of Process Act 1992 (Cth) [3.100]  The Commonwealth has power under s 51(xxiv) of the

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

Statutory Extensions of Jurisdiction Outside of Australia [3.110] The various court rules contain provisions allowing

court litigants to serve process outside of the jurisdiction

30 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

provided there is sufficient connection with the jurisdiction to satisfy SEPA or the applicable rules. However, this jurisdiction remains discretionary and may be declined by the court, unlike jurisdiction based upon service within the jurisdiction which may not be declined by the court. In the ACT, NSW, NT, Qld, SA, Tas and Vic, a plaintiff may serve out of the jurisdiction without leave of the court, but requires liberty to proceed if the defendant does not appear. In WA and the Federal Court, leave is required before serving out of the jurisdiction. Most courts have rules permitting service out of the jurisdiction in the following matters: (a) Where the subject matter of the action is property within the jurisdiction; (b) Where a document or Act affecting property within the jurisdiction is to be construed; (c) Where the defendant is domiciled or ordinarily resident in the jurisdiction; (d) The administration of estates of persons dying within the jurisdiction; (e) The execution of trusts relating to property within the jurisdiction; (f) Where the subject matter of an injunction is within the jurisdiction; (g) Where a necessary or proper party is outside the jurisdiction; (h) Interlocutory processes; (i) Most commonly, service outside the jurisdiction is permitted where the subject of the action is a tort committed within the jurisdiction (this is extended to cases where only damage is caused within the jurisdiction in the Federal Court, NSW, NT, Qld, SA, Tas and Vic); and (j) Actions on contracts made or breached within the jurisdiction or alternatively contracts governed by the law of the jurisdiction.

Ch 3: Jurisdiction 

 31

Service out of the jurisdiction is permitted in the following matters, in the following jurisdictions: • Cause of action arose within the jurisdiction –​Federal Court, ACT, NSW, Qld, and Tas. • Breach of statute within the jurisdiction –​Federal Court, ACT, NSW, Qld, SA and Tas. • Claims for contribution or indemnity –​Federal Court, NSW, Qld, and Tas.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• Counter-​claims and third party notices –​ACT, Qld, SA, Vic and WA. • Arbitration inside the jurisdiction –​Federal Court, ACT, NSW, Qld, SA and Tas. • Matters involving a party’s membership of a corporation –​ Federal Court, ACT, NSW, Qld and Tas, if the corporation is incorporated or trades within the jurisdiction. In WA, the rules permit service out of the jurisdiction if the subject matter is a share or stock in a corporation that has its principle place of business in that State.

4 Parties and Joinder Particular Parties

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[4.10]  All proceedings in the courts involve an application of at

least one party, seeking some form of relief or remedy, and most commonly two or more parties. However, not all actions involve natural persons of full legal capacity acting in their own right. Particular parties to litigation therefore deserve special attention before commencing proceedings.

Corporations [4.20]  Most

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

Ch 4: Parties and Joinder 

 33

must also be noted that the proper description of a company under the Act must include the ACN number: s 148.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Alternatively, non-​ profit associations may be incorporated under the State incorporated association’s legislation, which provides a similar register that may be searched. Incorporated associations are the common legal entity for sporting clubs and societies. However, some corporations are constituted by an Act of Parliament (commonly local authorities, government corporations and older charities and benevolent organisations such as the RSPCA and Boy Scouts). In these cases the litigant must look to the Act of parliament to determine the proper name of the corporation and its capacities. In proceedings against a company it will be necessary to establish its incorporation as a fact: Moldex Ltd v Recon Ltd [1948] VLR 59.

Unincorporated Associations [4.30] Associations that are not incorporated present great

difficulties for the litigant. As an unincorporated association is not a separate legal entity, it cannot sue or be sued in its own name in the same way as a company. The relevant office bearers or members may be identified and sued in some cases. Alternatively, the court may allow a representative action to be brought. Usually a common interest on the part of the members must be established, and some proprietary right to found a cause of action: Cameron v Hogan (1934) 51 CLR 358. In cases seeking declaratory relief the appropriate defendants may include the current office bearers who are capable of giving effect to orders of the court: Atkinson v Lamont [1938] St R Qd 33. South Australia (r 87) and Tasmania (r 319), however, have specific rules to facilitate such actions being brought in the name of the association.

34 

 Civil Procedure

Partnerships [4.40] Proceedings involving a partnership can be brought

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

against the partners named as joint defendants, or in the name of the partnership (although the New South Wales Law Reform Commission has suggested that it is preferable to name partners individually to avoid problems with the requirement to name the partnership precisely –​LRC Report on Supreme Court Procedure). Partners may sue in the firm name as plaintiffs (other than in New South Wales). Machinery provisions exist in the various court rules for forcing parties to identify all of the persons alleged to be partners at the relevant time (when the cause of action arose). These provisions should be applied in a manner that facilitates the due and efficient conduct of the litigation: South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231.

The Crown [4.50] While the Crown is immune from suit at common law,

this position has been altered by statute. Each State has passed a Crown Proceedings Act which allows for and regulates proceedings against the Crown (the government). Similar provisions are contained in the Judiciary Act 1903 (Cth) with respect to the Commonwealth.

Relator Actions [4.60]  The Attorney-​General is the only person that may sue to

compel a public duty to be performed, or restrain a public mischief (such as a public nuisance). If an individual wishes to bring an action of this type they must obtain the Attorney-​General’s fiat (permission) to bring a “relator action” (an action in the Attorney-​General’s name). The Attorney-​General has an unfettered discretion as to whether to give his or her fiat: Gouriet v Union of Post Office Workers [1978] AC 435. This rule is derived from the common law in Australia, rather than from

Ch 4: Parties and Joinder 

 35

any limitation on the jurisdiction of the courts: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

Infants

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[4.70]  An infant, not being of full legal capacity, must sue by or

through a “next friend” and defend by a “guardian ad litem”. A next friend has the conduct of the infant’s action, and will be liable for any costs. Usually the next friend will be a parent or close relative of the infant, but may be any person who has no adverse interest in the proceedings. If an infant sues without a next friend it is only an irregularity: it remains in the defendants interest to ensure that a next friend be appointed as costs will not be ordered against the infant and an infant will not be bound by the judgment if a next friend is not appointed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62. A next friend is liable for, but entitled to reimbursement of, solicitor’s costs that are justly and properly incurred: Stephenson v Geiss [1998] 1 Qd R 542. Similarly, if an infant is to be sued, a “guardian ad litem” must be appointed. The position of guardian ad litem may be occupied by any person of full capacity. Usually a senior solicitor from a firm with no other interest in the action is appointed. The guardian ad litem is not liable for the costs of the proceedings, but instead entitled to an indemnity for costs: Murray v Kirkpatrick (1940) 57 WN (NSW) 162. Usually an infant is only sued if an insurer stands behind them.

Parties under a Disability [4.80] Persons under a disability, such as infirmity of mind or

mental illness, must generally sue by their guardian, or committee of the person (usually a public trustee established under the legislation in the various States). If no guardian or committee of the person has been appointed, they may sue by their next friend.

36 

 Civil Procedure

Trustees [4.90]  The rules provide that trustees may sue on behalf of the

trust estate or be sued as representatives of the estate. It is not necessary to join the beneficiaries. At common law, judgment lies against the trustee who then has a right of indemnity from the trust estate; creditors are not able to obtain direct access to the trust estate: General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Agents [4.100]  An agent of a party will rarely be a proper party to sue.

If a person with a power of attorney is to sue on behalf of his or her principal, the action ought to be brought in the name of the principal. If an agent is to be sued as a defendant it must be on the basis of a cause of action against the agent, not simply that the agent represents the defendant: Campbell v Pye (1954) 54 SR (NSW) 308.

Deceased Persons [4.110] An executor or administrator of the estate must be

appointed for the estate to bring an action that survives the death of the original claimant. In cases where a party dies during the course of the proceedings, the executor or administrator will take the conduct of the proceedings. If no executor or administrator comes forward, the court may continue in the absence of the deceased or appoint a person to represent the estate: in either case the estate will be bound by the judgment.

Representative Proceedings [4.120] Representative proceedings are provided for in all

Australian jurisdictions: Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398. In the Federal Court, New South Wales, South Australia and Victoria there are also provisions for class actions, a more liberal

Ch 4: Parties and Joinder 

 37

form of representative proceedings, to be brought in respect of damages claims.

Representative Proceedings [4.130]  The rules governing representative proceedings devel-

oped in the Court of Chancery to facilitate cases involving numerous persons with the same interest. There are three requirements that must be met for a person to sue in a representative capacity (The Duke of Bedford v Ellis [1901] AC 1): 1. a common interest; Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

2. a common grievance; and 3. relief beneficial to all parties represented by the party on the record. In Australia the nature of representative proceedings was considered in Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398 where the scope of representative proceedings was widened. The High Court found that a common interest may be established by showing that those represented have a community of interest in any substantial question of law or fact. Carnie’s case takes the development of representative proceedings much closer to that of class actions, however as the court pointed out, representative actions are not “class actions”. Notably, however, the relief claimed in Carnie was a declaration, and not damages for each member of the class which would have required an individual assessment. As was pointed out by Mason CJ, Deane and Dawson JJ, the rules relating to representative proceedings do not provide a clear framework for questions relating to the consent of members of the group, opting out of the proceedings and settling or discontinuing proceedings. These matters are addressed in the legislative schemes for class actions. In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, the High Court held by majority, that “numerous persons” with the “same interest” in a proceeding must be capable of identification at the commencement of the representative proceedings.

38 

 Civil Procedure

Leave of the court is not required to commence representative proceedings, simply the consent of the plaintiffs to be represented:  Cameron v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133. However, leave ought to be sought prior to commencing proceedings against representative defendants: Cameron v Hogan (1934) 51 CLR 358.

Class Actions

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[4.140] In the Federal Court, New South Wales, and Victoria

there are legislative schemes providing for class actions: Pt IVA of the Federal Court of Australia Act 1976 (Cth); Civil Procedure Act 2005 (NSW), Pt 10; and Supreme Court Act 1986 (Vic), Pt 4A. In South Australia, representative actions may be commenced with or without leave of the court by a group representative where there exists a common interest, or question of law or fact: Supreme Court Rules 2006 (SA), ss 80-​81. To enliven the Federal Court, New South Wales and Victorian class action provisions, seven or more persons must have claims arising out of similar or related circumstances against the same respondent (defendant). Thus cases involving separate assessments of damages for each member of the class or separate acts or omissions, may be brought as a class action if there are sufficient common issues of fact or law. Thus members of a refugee group who had all been denied an oral hearing by the Minister’s delegate satisfied the test: Zhang De Yong v Minister for Immigration (1993) 45 FCR 384. The Act makes provisions for establishing a sub-​group if the decision on the common issue will not determine all of the issues necessary for all members. This avoids the potential difficulty created by applying the Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 style estoppel to all members of a class in a class action. Identification of the “class” is necessary, however this may be done without listing each member by name or specifying the precise number of members of the class: Federal Court of Australia Act 1976 (Cth), s 33H. In some cases the identification

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Ch 4: Parties and Joinder 

 39

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

40 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Section 43 of the Federal Court of Australia Act 1976 (Cth) permits costs to be awarded against the representative plaintiff only; not against the other members of the group. The Act gives the Court a very wide discretion with regards to costs, which may be used to limit the costs that can be awarded against an unsuccessful representative in appropriate cases: Woodlands v Permanent Trustee Co Ltd (1995) 58 FCR 139. The Federal Court (Merkel J) considered a “no win, no fee” costs agreement in Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) FCR 167, and declined to approve it, troubled in part by a premium of 25% added to fees if the proceeding was successful. The court may order security for costs against a representative plaintiff. In Madgwick v Kelly (2013) 212 FCR 1 at [7]‌, the Full Federal Court outlined the discretionary factors that should be considered by the Court in directing security for costs in a class action.

Anonymous Parties [4.150]  As a general rule, a plaintiff must be named in the orig-

inating proceedings. In A v Hayden (1984) 156 CLR 532, the plaintiff sued anonymously with respect to the security services raid on the Sheraton Hotel in Melbourne and no issue was taken by the defendant. However in neither Re Former Officer of ASIO [1987] VR 875 nor J v L & A Services Pty Ltd [1995] 2 Qd R 10 (the Queensland AIDS case), was leave granted to sue anonymously. In both cases, the courts were of the view that anonymity was not essential to the practical utility of the proceedings, such as in blackmail or confidential information cases. A strong case will be required before anonymity will be allowed.

Joinder [4.160] Often a case will involve more than one plaintiff or

defendant and more than one cause of action. Rules have

Ch 4: Parties and Joinder 

 41

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined. There are clear advantages to disposing of all related proceedings in one action. There may be different verdicts (or findings of fact) if the same issue is litigated twice, such as between the plaintiff and defendant and the defendant and a third party: for example, where the plaintiff sues for a defective swimming pool and the defendant joins the manufacturer –​if the two causes of action are not heard together the plaintiff may succeed against the defendant on the basis of a defective pool shell, yet the defendant later fail on this allegation against the third party. In addition to the logical inconsistencies that may flow from a multiplicity of actions, there are clear cost benefits in dealing with the whole of the matter in the one set of proceedings. However, rules must be in place to maintain control of proceedings lest so many parties and issues be joined making the litigation unwieldy and oppressive. It is this balance that the rules of joinder of parties and causes of action seek to establish. Questions of joinder will usually involve not only the joinder of the parties, but also the causes of action, and thus both tests must be satisfied. In Chapter 1 Fundamental Principles, the impact of the High Court decision in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 is discussed. In short, it is that a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. Anshun estoppel can therefore be seen as the consequence of a failure to utilise the joinder rules to their full extent. In all cases of joinder, whether simply of causes of action or also of parties, the court retains discretion to sever the joinder if it is in the interests of justice to do so, as is often considered in cases involving fraud or deceit. For example, in Queensland Estates Pty Ltd v Co-​Ownership Land Development Pty Ltd [1971] Qd R 164, claims against the first two defendants in deceit were severed from the plaintiff ’s claim against its solicitor who handled the transaction giving rise to the claims

42 

 Civil Procedure

against the first two defendants as: (1) the only common question was the plaintiff ’s damages; and (2) the evidence of deceit against the first two defendants was not admissible against the solicitor and likely to be highly prejudicial. There are effectively five situations that arise. In many cases, there is a combination of the five situations, such as situation 1 coupled with 2:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1. joinder of plaintiffs or defendants where they are liable or entitled to a remedy, jointly, severally or in the alternative, but with respect to one cause of action; 2. joinder of causes of action between one plaintiff and one defendant; 3. joinder of separate plaintiffs and defendants with their respective causes; 4. joinder of defendants when one or more plaintiff has separate causes of action against one or more defendant; and 5. joinder of necessary parties. These situations will be discussed individually.

1. Joinder of Joint, Several or Alternative Parties [4.170] The plaintiff may join all persons against whom the

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

Ch 4: Parties and Joinder 

 43

for alternative plaintiffs if there is some issue as to the proper plaintiff, for example in some commercial litigation it may not be certain which legal entity actually entered into a transaction.

2. Joinder of Causes of Action between One Plaintiff and One Defendant

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[4.180]  The rules provide for all causes of action to be joined

by a plaintiff against a defendant, whether the parties are suing or being sued in their personal capacity or some other capacity. This is the simplest form of the joinder rule. However, the court retains control over this form of joinder and may sever the causes of action if justice requires it.

3. Joinder of Separate Plaintiffs and Their Respective Causes [4.190]  Persons may be joined as plaintiffs where their right to

relief arises out of the “same transaction or series of transactions” provided that some “common question of law or fact” will arise. Thus, in Bendir v Anson [1936] 3 All ER 326 the plaintiffs were not properly joined. One pair of plaintiffs owned a building at No 4 Old Burlington Street, Westminster and the other pair of plaintiffs owned the building at No 6. All of the plaintiffs sued the defendant for erecting a building on the other side of the street that interfered with their “ancient lights”. The court found that although the erection of the building satisfied the test of being “one transaction”, the case did not involve a common question of fact or law. The court noted that the facts showed whether there was interference that would be different for each building (as each was in a slightly different location) and that the law in the area was sufficiently settled for there to be no real question of law to determine. Similarly in Payne v Young (1980) 145 CLR 609 the court found that numerous plaintiffs were not properly joined. Payne and seven others claimed monies paid under regulations levying

44 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

meat inspection fees which they alleged were invalid. The plaintiffs had each paid a different government authority the fees, which were collectable by State authorities and local authorities. The court found that there was no transaction that all of the plaintiffs were a party to, and that although each plaintiff had a series of transactions with each defendant, no two plaintiffs had transactions with the same defendant. Thus the plaintiffs failed to show that they were suing on the same transaction or series of transactions. However, the claim for a declaration (without the money claim) was found to be a right to relief that does not arise out of any transaction and therefore the plaintiffs could be joined for the declaration but not the money claims. A similar result eventuated in Dean-​Willocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64. A company liquidator had sought to join a series of both plaintiff and defendant companies, the only connecting factor being an allegation of a series of preferential payments by the proposed parties. However, it was held (Austin J) that the transactions concerned did not arise out of the same transaction or series of transactions.

4. Joinder of Defendants and Causes of Action by One or More Plaintiff [4.200] The rules relating to the joinder of causes of action

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

Ch 4: Parties and Joinder 

 45

(2) where there are claims against several defendants for a joint wrong with a claim for a separate wrong committed by one or more of the defendants.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

However these rules have been held not to limit the joinder of causes of action for wrongs that arise out of the same transaction, or a series of transactions involving a common question of law or fact. In most jurisdictions, the rules provide that the court has discretion to give leave for defendants to be joined: Federal Court Rules 2011 (Cth), r 9.02; State Court Rules –​(ACT), r 211; (NSW), r 6.19; (NT), r 9.02; (Qld), r 65; (SA), r 73; (Tas), r 176; (Vic), r 9.02; (WA), O 18, r 4. An example of a permissible joinder of defendants occurred in Birtles v Commonwealth (1960) VR 247 where the plaintiff sued the Commonwealth for personal injuries, and as a result of the Commonwealth’s plea that there was a statutory bar, sued his former solicitors for negligence. The court viewed the workplace accident and the involvement of the first solicitors as the one transaction or series of transactions and allowed the joinder. Despite this, convenience alone is not a sufficient basis to justify joining an additional defendant. In a professional negligence case, the Queensland Court of Appeal refused to add an insurer as co-​defendant for purposes of allowing the plaintiff to apply for a declaration that the insurer was liable to satisfy any judgment for the plaintiff: Interchase Corp Ltd (in liq) v FAI General Insurance Co Ltd [2000] 2 Qd R 301. The court held that the presence of the insurer was not necessary to resolve the questions of negligence, and the scope of the policy would become relevant only when judgment was given for the plaintiff and a claim made, which was too remote a contingency to justify joinder. Similarly in Dingle v MR Hornibrook Pty Ltd [1949] St R Qd 176, a plaintiff succeeded in joining both Hornibrook Pty Ltd and a local authority for damage caused by a power surge, resulting either from Hornibrook Pty Ltd negligently bringing down the lines, or the local authority negligently restoring supply.

46 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

As stated by Hart J in Black v Houghton [1968] Qd R 179: “[w]‌hen a plaintiff wishes to add a party in order to avoid falling between two stools it is fairly clear that the rule should be construed liberally”. In this case, Hart J allowed a plaintiff who sued the Mayor of Redcliffe for defamation to join a newspaper after the Mayor denied publication. However, in defamation cases the terms “same transaction or series of transactions” will be read as meaning the same “publication or series of publications”: Smith v Foley [1912] VLR 314. Joinder is often a difficult issue in defamation cases and should be considered very carefully.

5. Joinder of Necessary Parties [4.210]  The rules provide for the joinder of parties whose pres-

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

Ch 4: Parties and Joinder 

 47

Different considerations are taken into account when joinder is sought by way of a plaintiff ’s application, than when a defendant applies to add a co-​defendant over a plaintiff ’s objection: Qantas Airways Ltd v AF Little Pty Ltd at [38].

Interpleader

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[4.220]  The rules make provision for cases where the defendant

holds money or property claimed by more than one party; for example, where a storage company holds furniture claimed by both husband and wife after they have become estranged. In this situation, if an action is brought, the defendant may “interplead” where the defendant has no interest in the subject matter of the action, to allow the plaintiff and other claimants to litigate the issue without further involvement of the defendant: Wilson v Grace Bros Pty Ltd (1948) 66 WN (NSW) 21. However, the interpleader process is not available where the defendant may be liable to both parties, for example where two estate agents claim a right to commission under separate contracts with the defendant: LJ Hooker Pty Ltd v Dominion Factors Pty Ltd [1963] NSWR 573.

5 Limitation Periods Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[5.10]  The law of limitations is a creature of statutory invention,

first introduced in England by the Limitation of Actions Act 1623 (Imp). All States and Territories now have limitations of actions legislation in place. The effect of the legislation is to provide a time limit on bringing proceedings after the cause of action arises. This is commonly 6 years for contract and tort, and in some States and Territories 3 years if the claim includes damages for personal injuries. All of the States and Territories have now enacted legislation deeming limitation periods part of the substantive law of the State or Territory so that in cases brought in States or Territories with different limitation periods to the State or Territory where the cause of action arose, the limitation period in the State or Territory where the cause arose will be applied. There are a number of important rationales for limitation periods, as set out in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, per McHugh J: First, as time goes by, the relevant evidence is likely to be lost. Second, it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liability beyond a definite period. … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

48

Ch 5: Limitation Periods 

 49

The most important principle supporting the rationale behind limitations periods is the concept that there should be an end to litigation, or the prospect of litigation, for all potential parties.

Common Limitation Periods

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[5.20]  The limitation periods for various causes of action are set

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

50 

 Civil Procedure

applicable to an action for contribution and indemnity between tortfeasors:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• Australian Capital Territory, New South Wales, Northern Territory, and Queensland –​Two years of the date the action accrues to the tortfeasor, or within four years of the date the limitation period, or any extension thereof, for the principal cause of action expires (if this later period would expire first):  Limitation Act 1985 (ACT), s 21(1); Limitation Act 1969 (NSW), s 26(1); Limitation Act 1981 (NT), s 24(1); Limitation of Actions Act 1974 (Qld), s 40(1). • South Australia –​Whichever of the following periods is longer: (1) within the period that the person who suffered the harm could have brought the action against the person from who contribution is sought (Limitation of Actions Act 1936 (SA), s 35(c)); or (2) two years after the damages payable by the person entitled to contribution are determined: Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), s 6(4). • Tasmania –​Within one year after service of the writ in the original action on the tortfeasor: Limitation Act 1974 (Tas), s 7; Wrongs Act 1954 (Tas), s 3(5). • Victoria –​Whichever of the following periods is longer: (1) within the period in which the action against the tortfeasor could be commenced (Limitation of Actions Act 1958 (Vic), s (5)(1)(a)); or (2) one year after the writ was served on the tortfeasor: Wrongs Act 1958 (Vic), s 24(4)(a). • Western Australia –​If the cause of action accrues on or after the 15th November 2005, an action for contribution cannot be commenced if two years have elapsed since the cause of action accrued: Limitation Act 2005 (WA), s 17. [5.30] There is no Commonwealth Limitation of Actions Act

setting time limits for claims. To the extent that common law

Ch 5: Limitation Periods 

 51

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

claims are litigated in the High Court or Federal Court, the State or Territory periods appear to apply as a result of the Judiciary Act 1903 (Cth). The High Court, in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, held that limitation rules were, for purposes of applying choice of law rules, to be considered substantive. Many Commonwealth statutes have their own limitation periods; accordingly, resort to the State or Territory Act is often not necessary or permissible. Under the Competition and Consumer Act 2010 (Cth) (“CCA”) (formerly the Trade Practices Act 1974 (Cth)) there are limitation periods for some claims, for example the 6 year limitation period applying to consumer protection matters.1 Some rights under the CCA have no limitation period, such as the obtaining of an injunction. As the CCA provides its own limitation scheme, there is no room for resort to the State or Territory legislation. The Family Law Act 1975 (Cth) provides for a limitation period of one year from the date of divorce for bringing proceedings for property, or for de facto relationships, a period of two years after the end of the de facto relationship. The Limitation Acts provide for differing periods during which an action to enforce a judgment of the court may be brought. The Acts do not define the meaning of judgment, however, it is not to be given a restricted meaning: Handford, Limitation of Actions: The Laws of Australia (3rd ed, Lawbook Co., Sydney, 2011); Jay v Johnstone [1893] 1 QB 189. The applicable periods for action on a judgment are as follows: • Australian Capital Territory, New South Wales, Northern Territory, Queensland and Tasmania –​cannot be brought more than 12 years after the date the judgment became enforceable: Limitation Act 1985 (ACT), s 14(1); Limitation

1. Competition and Consumer Act 2010 (Cth), Schedule 2, s 236.

52 

 Civil Procedure

Act 1969 (NSW), s 17(1); Limitation Act 1981 (NT), s 15(1); Limitation of Actions Act 1974 (Qld), s 10(4); Limitation Act 1974 (Tas), s 4(4). • Victoria –​more than 15 years from the date on which the judgment became enforceable: Limitation of Actions Act 1958 (Vic), s 5(4).

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• South Australia –​cannot be brought more than 15 years from the recovery of the judgment: Limitation of Actions Act 1936 (SA), s 34. • Western Australia –​for causes of action arising on or after 15th November 2005, 6 years from when the cause of action accrued: Limitation Act 2005 (WA), s 13(1). This period was 12 years under the previous limitations legislation: Limitation Act 1935 (WA), s 32(1). There are many specific periods for actions relating to real property, depending upon the type of claim (eg to recover land, for adverse possession, future interests in freehold land, actions by mortgagees, etc.). The rules applicable in the relevant jurisdiction should be examined carefully in this regard. Following the enactment of uniform defamation laws in 2005 and 2006, the applicable limitations period in all jurisdictions for defamation is one year since the publication. The court may grant leave in circumstances where it would not have been reasonable to commence within one year of publication. However, an action cannot be commenced if three years have elapsed since the publication: Limitation Act 1985 (ACT), s 21B(1), (2); Limitation Act 1969 (NSW), ss 14B, 56A; Limitation Act 1981 (NT), ss 12(1A), 44A; Limitation of Actions Act 1974 (Qld), ss 10AA, 32A; Limitation of Actions Act 1936 (SA), s 37(1), (2); Defamation Act 2005 (Tas), s 20A(1), (2); Limitation of Actions Act 1958 (Vic), ss 51(1AAA), 23B; Limitation Act 2005 (WA), ss 15, 40. There are few limitation periods relating to equitable claims, however the doctrine of equity will often apply a limitation by analogy:  Knox v Gye (1872) LR 5 HL 656. Additionally, equitable claims may be rejected under the doctrines of laches

Ch 5: Limitation Periods 

 53

and acquiescence: Orr v Ford (1989) 167 CLR 316; Lindsay Petroleum Co v Hurd (1874) 5 PC 221.

Calculating Time [5.40]  The calculation of time is essential to properly determin-

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

ing when a limitation period expires. This requires a consideration of when time commences to run and when time will expire.

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

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

54 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

ingredient of the cause of action or necessary for time to commence to run. In Hawkins v Clayton (1988) 164 CLR 539, the High Court had to consider the negligence of a solicitor who held a will but took no steps to locate and inform the executor of the will until many years had passed since the testator’s death. The testator passed away in 1975 and the executor was not notified until 1981. The majority held that the cause of action accrued on the appointment of the executor in 1981 as it was only at this time that there was a plaintiff capable of suing. Deane J, dissenting, was of the view that time ought to commence when the effect of the Act itself no longer precluded the bringing of proceedings. Where a plaintiff sues on a contract of indemnity, time will not commence to run until the contingency upon which the indemnity operates is fulfilled. This is because until the contingency is fulfilled the plaintiff is only at risk of loss and was not liable to make any payment under the indemnity: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.

Disabilities [5.60] Under the State and Territory Acts, time will not com-

mence to run against plaintiffs under a disability at the time of the accrual of the cause of action, until they are no longer under the disability. In the case of infants, the disability of age ceases on attaining 18 years under the relevant Age of Majority Act. In NSW and Tas, if a child or person under a disability has a capable parent or guardian, a three year “discoverability date” applies, meaning that the limitation period starts to toll at the time when the capable parent or guardian is taken to have known, or should have known, of the facts leading to the claim: Limitation Act 1969 (NSW), s 50F(1); Limitation Act 1974 (Tas), s 26. In Vic, similar provisions apply, however, a six year period applies to the discoverability date: Limitation of Actions Act 1958 (Vic), s 27E. In Qld, in the case of those of suffering from mental disabilities, including persons of unsound mind (in actions other

Ch 5: Limitation Periods 

 55

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

than for death and personal injury), if the plaintiff was under a disability on the date when a right of action accrued, the action may be brought within six years of the date when the plaintiff ceased to be disabled or died, notwithstanding that the limitation period has expired: Limitation of Actions Act 1974 (Qld), s 29(2). The period is three years for personal injury: Limitation of Actions Act 1974 (Qld), s 29(2)(c). In the ACT, NT and SA, the Limitation Acts suspend the running of the applicable limitation period for the duration of the disability: Limitation Act 1985 (ACT), s 30; Limitation Act 1981 (NT), s 36; Limitation of Actions Act 1936 (SA), s 45. With children in SA, s 45A of the Limitation of Actions Act 1936 (SA) requires notice of an intended action to be given by, or on behalf of the child, within 6 years after the relevant date the defendant is alleged to be liable in damages. In Western Australia, special disability provisions apply under the Limitation Act 2005 (WA). In general terms, these provisions address guardianship issues with minors, and importantly, assume that minors and persons with mental disabilities will have a parent or guardian who can make decisions on their behalf, thus making extensions unnecessary. The extent of disability of the mind includes a lack of capacity to properly instruct a solicitor, exercise reasonable judgment upon a possible settlement, and to appreciate the nature and extent of any available claim: King v Coupland [1981] Qd R 121. The onus of proof in establishing that a limitations period has been extended rests with the plaintiff: Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464.

Fraud and Mistake [5.70]  In Qld, Vic and Tas, time will not commence to run if the

cause of action is based upon fraud, or concealed by fraud, until the plaintiff has discovered the fraud, or could have discovered it by reasonable diligence. In NSW and the NT, these provisions also apply where the identity of a potential defendant against whom a cause of action lies is fraudulently concealed.

56 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

In the ACT, deliberate concealment, not simply equitable fraud, must be shown. In SA and WA, there is no postponement for fraud at law, however the old rules as to equitable fraud apply and time will run in equity from the discovery of the fraud. In all jurisdictions except SA and WA (where the cause of action in WA accrued before 15 November 2005), the commencement of the limitation period for actions for relief from the consequences of mistake runs from when the mistake is or should have been discovered. In SA and WA (where the cause of action in WA accrued before 15 November 2005) there is no postponement of the limitation period in common law claims, however in equitable claims time runs from the discovery of the mistake. In Western Australia, fraud does not postpone the running of the limitation period, rather, it is dealt with by way of extension. The court may extend the limitation period by up to three years in cases where fraud and improper conduct is an issue and the cause of action arose on or after 15 November 2005: Limitation Act 2005 (WA), s 38(2).

When Time Runs Out [5.80] Time runs out after the expiration of the relevant lim-

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

Ch 5: Limitation Periods 

 57

Extension of Limitation Periods Acknowledgement [5.90]  An acknowledgement or part payment will generally have

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

the effect of allowing the limitation period to commence running again; “the right [of action is] given a notional birthday and on that day, like a phoenix of fable, it rises again in renewed youth –​and also like the phoenix it is still itself ”: Busch v Stevens [1963] 1 QB 1. An acknowledgment is simply an express or implied admission of the existence of the right that is claimed. An implied admission may be found where the debt is listed in a company’s balance sheets as an outstanding liability: The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535.

Latent Damage [5.100]  The law relating to latent damage and limitation periods

remains confused and difficult. In Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 1 All ER 65, the House of Lords held that a cause of action for defective building accrues on the occurrence of physical damage, whether or not it was reasonably discoverable. The High Court considered the issue twice; in Hawkins v Clayton (1988) 164 CLR 539 and in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. However, both cases involved relatively unusual factual circumstances and neither case has settled the law in this area. In 2014, the High Court again considered the issue of latent damage, in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36. The High Court held that the contractor under a “design and construct” contract did not owe a duty of care in tort to the body corporate of a strata title scheme to avoid pure economic loss occasioned by latent defect in the property’s common areas, which the contractor had built.

58 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

In the ACT, the NT and SA, the Limitation Acts give the court a general discretion to extend the limitation period in cases of economic loss and property damage for a further period of up to 15 years from the date of the act or omission giving rise to the cause of action. In the ACT, the court must consider a number of specific factors set out in the Act. In the NT and SA, the extension must be just and reasonable in all the circumstances and the action must be commenced within 12 months of the plaintiff ascertaining the material facts, or the failure to commence the action within the limitation was caused by representations and conduct of the defendant.

Personal Injury [5.110] Extensions of personal injury limitation periods have

been dramatically affected by tort reform in Australia. Each State and Territory provision is different and must be considered separately. The following general principles apply: • Australian Capital Territory –​Before 9/​ 9/​ 2003, could be extended for any period that was just and reasonable: Limitation Act 1985 (ACT), s 36. After 9/​9/​2003, the legislation does not contain an extension provision. • New South Wales –​After 6/​12/​2002, if a 12 year limitation period applies, up to 3 years from date of discoverability. If a 3 year limitation period applies, there is no extension: Limitation Act 1969 (NSW), s 62A. • Tasmania –​After 1/​ 1/​ 2005, if a 12 year limitation period applies, up to 3 years from date of discoverability. If a 3 year limitation period applies, there is no extension: Limitation Act 1974 (Tas), s 5A(5). • Northern Territory –​If material facts are not ascertained until 12 months before the end of the limitation period, or after the end of the period, or due to conduct of the defendant, and it is just to grant extension, any period: Limitation Act 1981 (NT), s 44.

Ch 5: Limitation Periods 

 59

• South Australia –​If material facts are not ascertained until 12 months before the end of the limitation period or after the end of period, or due to conduct of the defendant, and it is just to grant extension, any period: Limitation of Actions Act 1936 (SA), s 48.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• Queensland –​One year after material facts of decisive character are within plaintiff ’s means of knowledge: Limitation of Actions Act 1974 (Qld), s 31(2); see Queensland v Stephenson (2006) 226 CLR 197 on the issue of what is a material fact of a decisive character. • Victoria –​After 1/​10/​2003, any period that is just and reasonable: Limitation of Actions Act 1958 (Vic), s 27K. • Western Australia –​If the provisions of the Limitation Act 2005 (WA) apply, up to 3 years from when the plaintiff became aware, or ought reasonably to have become aware, of the physical cause of injury, or that the injury was attributable to the defendant’s conduct, or of the defendant’s identity, if the court is satisfied that when the limitation period expired, the plaintiff was not aware of the matter in question: Limitation Act 2005 (WA), s 39.

6 Commencing Proceedings Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Originating Proceedings [6.10] In all jurisdictions, originating proceedings are distin-

guished from applications in pending proceedings (interlocutory applications). In this chapter we consider the law applicable to originating proceedings. Within this context, all jurisdictions also differentiate between proceedings that involve disputed issues of fact, and those that raise a question of law only. In general terms, originating proceedings that involve disputed facts will involve the process of pleadings and disclosure. Disputes involving questions of law only are generally determined summarily, following the filing of affidavits by the parties.

Federal Court [6.20] In the Federal Court, all proceedings are commenced

with an application: Federal Court Rules 2011 (Cth), r 8.01. The application must be supported by either pleadings or affidavits, which disclose the nature of the claim and the material facts upon which the application is based: Federal Court Rules 2011 (Cth), r 8.05. Pleadings must be used if there are significant disputes of fact, and in cases involving fraud, misrepresentation, breach of trust, wilful default, or undue influence. Affidavits are suitable where the substantial dispute involves a question of law; for example, a question about the appropriate construction to be placed upon a section of an Act. This principle, as embodied in the Federal Court Rules 2011 (Cth), is the fundamental principle lying behind the modes of commencement utilised in 60

Ch 6: Commencing Proceedings 

 61

the other courts. That is, that there are different modes for commencing proceedings dependent upon whether or not there is a significant factual dispute.

Commencement of Proceedings in State and Territory  Courts Australian Capital Territory

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[6.30] In the Australian Capital Territory, the plaintiff chooses

the form of originating process, dependent upon the Court Procedures Rules 2006 (ACT); either an “originating claim” or “originating application”. Proceedings must be commenced by way of originating claim, unless ACT law requires or permits the proceeding to be commenced by originating application: Court Procedures Rules 2006 (ACT), rr 31-​33. The plaintiff has the option of commencing by originating application in circumstances where, for example, there are not likely to be substantial disputes of fact; there is no opposing party; the matter is urgent and there is insufficient time to prepare an originating claim; the relief sought is a declaration; or the matter involves the interpretation of legislation.

New South Wales [6.40] The form of originating process in New South Wales is

a statement of claim, or a summons: Uniform Civil Procedure Rules 2005 (NSW), r 6.2. Statements of claim are utilised in circumstances where there are disputed issues of fact, r 6.3. This triggers the full pre-​trial process of disclosure. A summons is required in both commercial list and technology and construction list proceedings: Practice Note SC Eq 3, Supreme Court Equity Division –​Commercial List and Technology and Construction List. Rule 6.4 of the Uniform Civil Procedure Rules 2005 (NSW) requires that a range of other proceedings be commenced by way of summons, including matters where there is no defendant, or a declaration of right is sought. The summons procedure does not, unless the court orders

62 

 Civil Procedure

otherwise, lead to pleadings or oral trial, and is suitable in circumstances where there are not factual disputes: Uniform Civil Procedure Rules 2005 (NSW), rr 14.1, 31.

Queensland [6.50]  In Queensland, r 9 of the Uniform Civil Procedure Rules

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1999 (Qld) requires that a “claim” be used unless the rules require or permit an “application”. A claim involves contested issues of fact, and leads to the exchange of pleadings and disclosure. A statement of claim must be attached to the claim: r 22. Applications resolve questions of law in a summary fashion.

South Australia [6.60]  In South Australia, proceedings are called “actions”. The

term “primary action” refers to a proceeding commenced by the plaintiff, while the term “secondary action” encompasses proceedings brought by way of cross action and by third parties: Supreme Court Civil Rules 2006 (SA), r 28. A statement of claim must be attached to the originating process, which is a summons: Supreme Court Civil Rules 2006 (SA), r 34. In particular circumstances, the plaintiff may be exempted from lodging pleadings (r 91) and in other cases, the rules acknowledge that affidavits are preferable: r 96. If the plaintiff intends to commence a primary action for money, they must comply with r 33, which creates a condition precedent to commencement requiring that the plaintiff make an offer to settle to the defendant. The offer must be served at least 90 days before commencement of the action and must provide sufficient detail for the defendant to assess its position.

Tasmania [6.70] The traditional English classification of distinguish-

ing between actions, causes and matters has been retained in Tasmania. Actions in civil proceedings are commenced by writ: Supreme Court Rules 2000 (Tas), r 5. Rule 88 sets out the proceedings that are to be commenced by writ; r 89 sets out

Ch 6: Commencing Proceedings 

 63

the proceedings to be commenced by application, and r 90 sets out proceedings to be commenced by way of a chambers application. As in other jurisdictions, a proceeding commenced by application is decided on the accompanying affidavits: r 458. If the proceeding is commenced by writ, then pleadings, disclosure, and oral evidence at trial will follow.

Western Australia

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[6.80]  Proceedings that involve factual disputes are commenced

by a writ of summons and lead to pleadings, disclosure and oral evidence at trial. Disputes involving legal issues only are dealt with summarily and are commenced by an originating summons, or by motion to the court. A distinction is made between disputes involving opposing parties, and disputes where there is no opposing party. Original proceedings between disputing parties are called “causes”. If the cause is commenced by way of writ of summons, it is an “action”. Proceedings where relief is not sought against an opposing party are referred to as “matters”. Section 4 of the Supreme Court Act 1935 (WA) defines a “matter” as every proceeding in the court that is not in a “cause”.

Victoria and the Northern Territory [6.90]  In both Victoria and the Northern Territory, except where

circumstances provide otherwise, proceedings are commenced by either writ (the usual course of events) or originating motion (there is no defendant and the rules authorise same): Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 4.01; Supreme Court Rules (NT), r 4.01. There is no distinction in either jurisdiction between court and chambers; all business is transacted in court: Supreme Court Act 1986 (Vic), s 4; Supreme Court Act 1979 (NT), s 9A. If a writ is used, it must contain an endorsement of the claim. This can be a statement of claim, or an endorsement identifying

64 

 Civil Procedure

the nature and cause of the claim, as well as the relief sought. If the endorsement is not identified on its face as a “statement of claim”, the plaintiff must also serve the defendant with a “statement of claim” identified as such, regardless of the level of detail contained in the endorsement. The statement of claim, whether issued with the writ or thereafter, must comply with the rules for pleadings: Rules of the Supreme Court (Vic), O 13; Supreme Court Rules (NT), O 13.

Endorsements Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[6.100] Initiating proceedings must contain the names and

addresses of the parties, an address of the initiating party for service (usually their solicitor’s office) and various endorsements as to the need to respond and the consequences of failing to respond. The purpose of the endorsement is to notify the defendant of the nature of the case against them, and the relief sought. Careful consideration needs to be given to the endorsement, as it is not permissible for the statement of claim to plead a different cause of action, unless leave is granted. This may be complicated by the passing of limitations periods, making new allegations statute barred. Further, if the endorsement is broad, and the statement of claim narrow, the court may find that some allegations that would have been encompassed by the original endorsement have been abandoned: Renowden v McMullin (1970) 123 CLR 584. Where proceedings are initiated by Writ, the nature of the claim and/​or relief or remedy sought must also be endorsed (see the discussion above relating to Victoria and the Northern Territory). The rules in each jurisdiction need to be carefully considered in this regard, as once it is no longer possible to amend the endorsement, it defines (and therefore curtails) the causes of action to be raised at trial.

7 Service and Appearance Service

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[7.10]  Service is the jewel in the crown of court proceedings;

if done properly, it ensures that the defendant is aware of the proceedings against them. There are two broad categories of service: (1) personal service; and (2) ordinary service. Personal service ensures that the defendant is aware of the originating proceedings, by providing the originating documents to them directly. With subsequent interlocutory proceedings, service is normally effectuated by delivery of the documents to a nominated address for service. This is known as “ordinary service”. If service is not done properly, it is considered “irregular”, and may lead to a default judgment being set aside, or the passage of an applicable time limitation.

Personal Service [7.20]  For personal service to be properly effected, there are a

number of elements that must be satisfied: 1. delivery of a copy of the writ or proceedings into the possession of the defendant; 2. notification to the defendant of the nature of the documents being served (the person need not be informed orally if the nature of the document is clear on its fact (Re Elkateb (2001) 187 ALR 479)); 3. making the original available for inspection, if required; and 4. in most jurisdictions, endorsement of the details of service on the original document or by affidavit within a limited period. 65

66 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Difficulties occur when the defendant will not accept delivery of the documents, in which case it is permissible to leave them in front of the defendant or in a place to which the defendant has unimpeded access, if the defendant refuses to take the documents. Thus, service by pushing the documents under a door that the defendant will not open is sufficient. In Ainsworth v Redd (1990) 19 NSWLR 78, the document was held to have been “left with” the defendant where the defendant told the process server to give it to his legal representative, who was standing next to him. It has been held insufficient to simply leave documents for a prisoner with the wardens of the gaol: Re: Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. Service of originating process on the defendant’s lawyer is permissible in all jurisdictions, provided that the lawyer has instructions from the defendant to accept originating service in that proceeding: Ricegrowers Co-​op Ltd v ABC Containerline NV (1996) 138 ALR 480. If there is more than one person to be served in a jurisdiction that requires the original proceedings to be available for inspection, concurrent writs may be obtained. A concurrent writ is simply another original of the writ for the purpose of service, to allow for service on different defendants at the same time. Proof that service has been effected in accordance with the rules is normally accomplished by the bailiff or process server completing an endorsement on the originating proceedings, or an affidavit as to the details of service. In the Family Court, the provisions for the proof of service are much more exacting than in the other courts.

Statutory Aids [7.30]  In a number of areas, there are statutory provisions that

make service easier. The Service and Execution of Process Act 1992 (Cth) provides for service out of the State (“interstate service”), provided that the provisions of the Act are complied

Ch 7: Service and Appearance 

 67

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

Service Out of Australia Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[7.40] When serving process outside of Australia, all jurisdic-

tions have criteria for establishing that there is a nexus between the issuing forum and the dispute: Agar v Hyde (2000) 201 CLR 552.

Federal Court [7.50]  In the Federal Court, leave is required to serve outside

the jurisdiction (Federal Court Rules 2011 (Cth), r 10.43), and will be granted where the court is satisfied that: • it has jurisdiction in the proceeding; • the proceeding falls within the heads contained in Federal Court Rules 2011 (Cth), r 10.42; and • there is a prima facie case for relief.

States and Territories [7.60]  The applicable rules in the ACT, NT, NSW, Qld, Tas, Vic,

and SA permit a plaintiff to serve an originating process outside of Australia without leave: (ACT), r 6501; (NT), r 7.01; (NSW), r 11.2; (Tas), r 147A; (Vic), r 7.01; (Qld), r 124; (SA), r 40. However, in the ACT, NT, NSW, Tas and Vic, if the defendant does not enter an appearance, leave must be sought before entering a default judgment: (ACT), r 6508; (NT), r 7.04; (NSW), rr 11.2, 11.4; (Tas), r 147B; (Vic), r 7.04. In Western Australia, the plaintiff may serve a writ outside the jurisdiction with the court’s leave: Rules of the Supreme Court 1971 (WA), O 10, r 1.

68 

 Civil Procedure

Substituted Service [7.70] If the plaintiff is unable to serve the proceedings per-

sonally, or with the assistance of a statutory aid, an application may be made to the court to allow for service to be effected in another manner, called “substituted service”. To obtain an order for substituted service, it must be established (see Porter v Freudenberg (1915) 1 KB 857) that: (1) the defendant cannot, with reasonable diligence, be served;

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(2) the proposed method of substituted service is likely to bring the proceedings to the defendant’s notice; and (3) but for practical difficulties, personal service is permissible. In Embrey v Smart [2014] QCA 75, the Queensland Court of Appeal held that the impracticality of person service must exist at the time the court is asked to make the order for substituted service. The most common methods of substituted service are service upon relatives or friends of the defendant, publication of notices in newspapers, service by post, and service upon compulsory insurers. Recently, applications have been made with varying results, seeking to serve process via posting on social networking internet sites, such as Facebook: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 (default judgment set aside as service via Facebook not valid, but court accepted possibility that substituted service via social media could be effective); MKM Capital Pty Ltd v Corbo & Poyser (unreported, ACT Supreme Court, Master Harper, 12 December 2008) (substituted service by Facebook was permitted); and Citigroup Pty Ltd v Weerakoon [2008] QDC 174 (substituted service by Facebook was not permitted). Provided that the order is complied with, the plaintiff does not have to show that the proceedings actually came to the attention of the defendant: Grice v Grice [1930] St R Qd 261.

Appearance [7.80]  Once served with the originating process, entering an

“appearance” prevents the defendant from the risk of default

Ch 7: Service and Appearance 

 69

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

judgment. The appearance indicates that the defendant intends to contest the proceedings, and is a document that is filed in the registry and served on the plaintiff (or the plaintiff ’s solicitor). In jurisdictions where proceedings are commenced by Writ, an “Appearance” is a formal document filed by the defendant in answer to the writ or claim. In other jurisdictions, it is part of the process of filing a defence. In most jurisdictions, the defendant cannot take a step in the proceeding without having first entered an appearance. In the Northern Territory and Victoria, the rules provide that the defendant can challenge jurisdiction without having first entered an appearance: (NT), r 8.09; (Vic), r 8.09. In the ACT, NT, NSW, Qld and Vic, the court may give leave permitting the defendant to take a step prior to entry of an appearance. In personal actions only the named defendants may enter an appearance. In actions in rem, such as admiralty actions, only those with a proprietary interest in the subject matter of the action may enter an appearance: Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1975) 136 CLR 529.

Unconditional [7.90]  An unconditional appearance is a submission to the juris-

diction of the court, a waiver of any objection to any defect in the originating proceedings known to the defendant or obvious on the face of the process, and a waiver of any irregularity in service.

Conditional [7.100]  If the defendant wishes to dispute the jurisdiction of the

court or service, a conditional appearance must be filed. A conditional appearance need not use the formal words prescribed under the rules, so long as it is clear. Hence, an appearance “under protest” was held to be a conditional appearance: Larsen v The Ship “Nieuw Holland” [1957] St R Qd 605.

70 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

If a conditional appearance is filed, the defendant must then bring an application to the court to seek to have the writ set aside, or service set aside. If the defendant does not promptly bring such an application in some jurisdictions, the appearance becomes unconditional in 14 days and in others, the plaintiff may bring an application for the conditional appearance to be struck out, allowing judgment to be entered: Henry v Geoprosco International Ltd [1976] QB 726. However, in some cases, the question of jurisdiction may be of such complexity that it cannot be determined until trial.

8 Pleadings Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[8.10]  The pleadings in an action are commenced with the plain-

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

72 

 Civil Procedure

The pleadings supported the verdict, as the relief in trespass was available on the facts as pleaded (notably such a plaintiff would now be likely to succeed in negligence in Australia, following Bryan v Maloney (1995) 182 CLR 609). Odgers’ Pleading and Practice suggests that there are, however, four central functions served by the pleadings in an action: 1. to ensure that the parties know which issues are in dispute; 2. to allow the parties to identify the facts that they must prove at trial;

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

3. to allow the mode of trial to be determined; and 4. to provide a record of the matters decided at trial by the judgment. The Court rules set out the formal requirements for pleadings and provide forms for the purpose. However, a number of helpful basic rules can be distilled:  1. pleadings must be divided into separate numbered paragraphs;  2. pleadings should be as brief as the nature of the case will allow;   3. pleadings must particularise the party’s claim;   4. only material facts may be pleaded;   5. the evidence by which a party intends to prove a material fact may not be pleaded;   6. each paragraph must contain only one allegation of fact;   7. the relief claimed must be stated;   8. the law may not be pleaded, only facts;   9. pleadings must be signed by the party or their solicitor; and 10. a pleading must be delivered to the other party. A good example of the difficulties a plaintiff may face if a relevant allegation is not pleaded occurred in Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218. The plaintiff brought an action against Esso for damages caused to a

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Ch 8: Pleadings 

 73

beach when its ship, the Inverpool, discharged a considerable amount of oil that was its cargo on running aground. The plaintiff alleged that the master of the vessel had been negligent in the vessel’s navigation, and did not plead negligence on the more general allegation that the vessel was unseaworthy. The trial judge found that the navigation was not negligent and that the damage was caused by a defect in the vessel (the vessel had shipped heavy seas when her steering became erratic. The master elected to continue towards protected waters, despite a narrow channel, as the ship and crew were in peril. The ship ran aground due to the steering defect and was at risk of breaking her back. The master elected to discharge the cargo of oil to lighten the ship). The House of Lords held that the plaintiffs were not entitled to judgment on an allegation of unseaworthiness as this was not an issue on the pleadings and therefore not litigated at trial. In many cases, however, the issues of fact will be litigated at trial and an amendment to the pleadings, even after the trial, may suffice: see for example State of New South Wales v Thomas [2004] NSWCA 52 (court directed amendments to the pleadings to make them conform to the issues determined at trial); and Leotta v Public Transport Commission (1976) 50 ALJR 666.

Statement of Claim [8.20] The statement of claim is the first pleading. In it the

plaintiff must frame his or her case. The descriptions of people, places and things should remain consistent throughout the statement of claim. Names of non-​parties should be given in full, and the parties referred to by their designation, eg “the plaintiff ”. Generally, a statement of claim will be easier to follow if set out chronologically, and if a long document, headings may be inserted. If a number of different types of claim are pleaded, headings can be very helpful. The requirement to plead material facts does not exclude the pleading of legal categories, such as duty of care, contract, and fiduciary duty: Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135.

74 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Particulars must be inserted in order to control the making of broad allegations that do not provide sufficient detail to put the defendant on notice of the claims against them. However, the rules relating to particulars also apply to defences and replies. If the particulars are brief, they should be included in the pleading itself; if they are lengthy, they should be provided by delivery of a separate document. Each jurisdiction has rules about particular matters that must be pleaded. For example, in Queensland, particulars of any claim made for special, aggravated or exemplary damages must be pleaded: Uniform Civil Procedure Rules 1999 (Qld), r 158. Importantly, the plaintiff should not anticipate defences and “reply” to them in advance in the statement of claim: the reply is the appropriate place to set out further facts that may become relevant to a particular defence: Hall v Eve (1876) 4 Ch D 341. The general structure of a statement of claim can be divided into three parts: 1. The Matters of Inducement: The paragraphs setting out who the parties are, what business they carry on, how they are related or connected, and any other surrounding circumstances leading up to the central issues. 2. The Substantive Content: The central issues demonstrating a cause of action, such as the terms of a contract, the breach and the damage suffered. 3. The Prayer for Relief: The final part of a statement of claim setting out the relief claimed by the plaintiff. When drawing pleadings, numerous precedents are available as guides in Bullen and Leake and Jacob’s, Precedents of Pleading (Sweet & Maxwell, London) and Azize, El Khouri and Finnanes’ Pleading Precedents (Thomson Reuters, Sydney). These days, there are also a range of online precedents databases. It is useful for the drafters to peruse a number of pleadings in the precedent books, as all will require careful tailoring to reflect the factual matrix at hand.

Ch 8: Pleadings 

 75

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

A party may plead inconsistent allegations in the alternative: Philipps v Philipps (1878) 4 QBD 127. A plaintiff may also refer to documents in the pleadings, although the material parts must be set out in full or in summary form: Bloeman v Atkinson [1977] Qd R 291. The fulfilment of a condition precedent is implied and need not be pleaded by the plaintiff in the statement of claim: Gates v WA and RA Jacobs Ltd [1920] 1 Ch 567. It is for the defendant to raise any allegation that a condition precedent has not been fulfilled, to which the plaintiff may provide a reply. A party who pleads a condition of mind, which may include, for example, a mental disorder or disability, fraud, or malice, must give particulars of that allegation. In the Federal Court, a party is required to particularise the facts and circumstances relied upon to show a state of mind alleged in the pleadings. In Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 70 FLR 135, the plaintiffs were required to provide particulars of the facts relied upon in support of a claim under the Trade Practices Act 1974 (Cth) to show that the defendant had no reasonable expectation that all of the shops in a shopping centre would be fully tenanted when the centre opened.

Defence [8.30] A defendant must answer the plaintiff ’s pleading and

plead any fact that may take a plaintiff by surprise. A defendant has a number of general strategies that may be pursued in a defence: 1. traverse (denial of) the plaintiff ’s allegations; 2. plead further facts to show that the plaintiff is not entitled to relief in the matter (“confession and avoidance”); 3. raising a point of law; and 4. pleading a set-​off. Generally, more than one strategy will be adopted; for example a denial of the facts alleged by a plaintiff, rather than admitting them, and pleading further facts in the alternative.

76 

 Civil Procedure

The defendant does not plead to damages, which are presumed to be denied under the rules of court. However, if a defendant wishes to allege that the plaintiff has not mitigated its loss, then the defendant must plead the facts relied upon as the onus is on the defendant on the issue of mitigation of damages: Plato Films Ltd v Speidel [1961] AC 1090.

Denials [8.40]  It is important for the defendant to deny any allegation

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Ch 8: Pleadings 

 77

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Confession and Avoidance [8.50]  Pleas in this category can be divided into two types: pleas

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

Raising a Point of Law and Demurrer [8.60] The process of entering a demurrer to a statement of

claim is now only available in the High Court: High Court Rules

78 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

2004 (Cth), r 27.07. If a defendant enters a demurrer he or she alleges that the plaintiff ’s pleading, as drawn, does not disclose a cause of action even if all of the allegations of fact were accepted. The demurrer procedure is no longer available in the State and Territory courts. The alternative procedure, which is available in all jurisdictions, is raising an objection in point of law in the pleadings. This is an exception to the principle that questions of law are not pleaded. By raising such an objection, the issue is identified and may be dealt with summarily, or reserved for trial: an example of a point of law being dealt with summarily can be found in Ball v Consolidated Rutile [1991] 1 Qd R 524.

Set-​off [8.70]  A set-​off is a defence to the plaintiff ’s claim and must be

pleaded as part of the defence. As a set-​off is a defence and not a separate claim, the defendant will not recover any sum by which the set-​off exceeds the plaintiff ’s claim unless the set-​off is also brought as a counter-​claim or cross-​claim. However, as a set-​off is a defence, and not a separate claim, it will generally not be restricted by any limitation periods. There are two types of set-​ off: legal and equitable.

Legal Set-​off [8.80]  At common law, no set-​off was allowed until the Insolvent

Debtor’s Relief Act 1728 (Imp), which allowed for liquidated demands to be set off. A legal set-​off is restricted to liquidated claims:  McDonnell & East Ltd v McGregor (1936) 56 CLR 50. Put simply, a set-​off allows for one debt to cancel out another, such as off setting accounts. For example, a claim by one trader on a debt for goods delivered could be met by a defence by way of set-​off to the extent that a defendant alleges that a debt is owed by the plaintiff to the defendant, such as for services rendered. In the Federal Court, ACT, NT, NSW, Tas, Vic and WA, if a plaintiff intends to rebut an allegation of set-​off, to avoid raising

Ch 8: Pleadings 

 79

any matter that would surprise the defendant, it should be raised in a reply. Further, in Queensland, a reply should be delivered to avoid the impact of r 168, which could result in any disputed matters surrounding the set-​off becoming an implied non-​admission.

Equitable Set-​off

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[8.90]  Equity allowed for a set-​off before the statutory alteration

of the common law: see for example Ex parte Stephens (1805) 11 Ves Jun 24. Equity will allow a set-​off where the defendant’s claim impeaches the plaintiff ’s title to sue. The test is whether, before the Judicature Acts, equity would have restrained the plaintiff from exercising his or her legal rights: Rawson v Samuel (1841) Cr & Ph 161.

Further Pleadings [8.100] The only further pleading that may be delivered by a

plaintiff without leave is a reply to the defence. The reply is crucial if there are further facts that a plaintiff must allege to overcome a defence. For example, in Bank Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279, the defendant pleaded a defence based upon a limitation period and the plaintiff failed to plead a reply alleging fraud (to overcome the limitation defence). The High Court held that it was not open to the court to make a finding of fraud in the absence of a pleading to that effect. In all jurisdictions except Queensland, there is an implied joinder of issue on the allegations contained in the last pleading. Each of the allegations contained in the last pleading is taken to be denied and in dispute between the parties. In Queensland, there is no implied joinder, rather, any allegations left unanswered in the last pleading are taken to be a non-​ admission: (Qld), r 168. This is critical, as a party who pleads a non-​ admission cannot call or give evidence in relation to the subject matter of the non-​admission without leave of the court: (Qld), r 165.

80 

 Civil Procedure

It is open to a defendant to bring a counter-​claim. That is a claim by the defendant against the plaintiff to be heard at the same time as the plaintiff ’s claim against the defendant. The counter-​claim may be brought against the plaintiff and additional parties.

Counter-​claims

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[8.110]  In the Federal Court and NSW a counter-​claim is referred

to as a cross-​claim. A counter-​claim is a claim by a defendant against the plaintiff which is related to the plaintiff ’s action against the defendant. A simple form is where a builder sues for money due and owing and the defendant counter-​claims for damages for poor workmanship. The restrictions upon counter-​ claims are not nearly as narrow as those imposed upon a set-​off. A plaintiff must then lodge a defence to the counter-​claim (in some jurisdictions referred to as an “Answer”), to which the defendant may reply. As the counter-​claim is a separate action in its own right it will remain on foot even if the plaintiff discontinues, unlike a set-​off which is only a defence. Similarly, the defendant may enter judgment in default on a counter-​claim if the plaintiff does not plead to it in the required time.

Third and Subsequent Parties [8.120]  A defendant may wish to join a third party in order to

claim a contribution or indemnity from the third party, if the claim against the third party is related to the claim of the plaintiff against the defendant. For this purpose, a Third Party Notice must be issued, and pleadings then follow in the usual way. Leave of the court is required if a defendant wishes to issue a Third Party Notice after delivering the defence. The third party is not a defendant as against the plaintiff; rather, the third party has the same rights against the defendant as if it had been sued by the defendant in a separate proceeding.

Ch 8: Pleadings 

 81

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

As a third party is not a defendant, the plaintiff may not obtain judgment against the third party without first joining the third party as a defendant. A third party claim is effectively an action between the defendant and third party. Thus, a third party may counter-​claim against the defendant: Barclay’s Bank v Tom [1923] 1 KB 221. Similarly, a third party may join a fourth party. An interesting example can be found in the “Under Milkwood” case where the executrix of Dylan Thomas’ estate sued the Times Book Co. for return of the original manuscript, and an injunction to restrain Times from dealing with the manuscript. Times joined Cox as the third party as Cox had sold them the manuscript. Cox in turn joined Cleverdon as a fourth party as Cleverdon had sold the manuscript to Cox. Cleverdon claimed that Thomas had given the manuscript to him: Thomas v Times Book Company Ltd; Cox (third party) and Cleverdon (fourth party) [1966] 1 WLR 911. However, the third party procedures may only be utilised if some relief or remedy is sought from the party to be joined. A party may not be joined simply to ensure that they are bound by the findings of the court on the issues litigated. If the defendant wishes to make a claim against another defendant in the action, a Third Party Notice is not required as the party is already a party to the action. A defendant may simply issue a Notice of Contribution and Indemnity against the other defendant.

Particulars [8.130]  The extent to which a party must provide precise par-

ticulars of any allegation pleaded is often a difficult issue. The rules provide for the provision of particulars. The basic function of particulars was described by Isaacs J in R v Associated Northern Collieries (1910) 11 CLR 738: I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the

82 

 Civil Procedure

constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms “surprise”, but he is not entitled to be told the mode by which the case is to be proved against him.

The more common examples of particulars that are usually required in a contract case are: • the date that a contract was entered into; • whether it was oral, in writing, or by conduct;

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Ch 8: Pleadings 

 83

Although particulars are incorporated into the pleadings, they are not material facts and therefore should not be pleaded to by the other party. As particulars supplement the material facts with details, they cannot supersede the material facts as pleaded, nor remedy an otherwise defective pleading: Trade Practices Commission v David Jones Australia Pty Ltd (1985) 7 FCR 109.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

In many jurisdictions, there are special requirements as to the particulars which must be pleaded in personal injury cases set out in the rules.

9 Interlocutory Applications Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[9.10]  In all jurisdictions in Australia, the parties work towards

the trial of an action where all of the evidence is heard and a final judgment given. In this respect, the Australian system has been strongly influenced by the process of trial by jury. That is, all of the procedural steps necessary to identify issues and discover evidence are taken prior to a formal trial. The ensuing trial then takes place as one uninterrupted hearing of the evidence and arguments, followed by verdict or judgment by the trier of fact (the judge or jury). Although juries are now uncommon in civil trials, the principle of an uninterrupted trial followed by judgment, remains. However, it is common for many disputes to arise prior to trial concerning matters of procedure, or the preservation of property or rights. For examples, disputes as to pleadings, discovery and the need for injunctions to preserve property. It is for this purpose that “interlocutory” procedures have developed for determining matters that are not part of the final trial. Put most simply, an interlocutory order is one which does not finally determine the rights of the parties:  Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. Thus, applications for orders that a party make disclosure or provide security for costs are interlocutory applications. Similarly, applications for injunctions pending trial (interlocutory injunctions), orders for speedy trial and leave to amend pleadings are all interlocutory orders. 84

Ch 9: Interlocutory Applications 

 85

Procedure [9.20] Usually, interlocutory applications are made after the

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

commencement of proceedings. The forms and method for making such applications are prescribed by the various rules. If the application is to be made to a judge, the application is made at chambers by summons or application. If the application is to be made to the court, the application is done by motion, and the notice of motion is served on the opposite party. A party may seek an interlocutory order part way through a proceeding, or possibly even before a claim or an originating application is issued, in order to protect a right of the party, but which does not finally settle the dispute between the parties. These types of orders are interlocutory orders. In cases of extreme urgency, a Judge may make an interlocutory order without material, provided an undertaking is provided to file a summons and affidavit as soon as possible. Such cases are now becoming rare as word processing has greatly increased the speed at which material may be produced. Some interlocutory applications are made ex parte, that is in the absence of any other party. This will occur in cases of extreme urgency, or where there is a risk that a party will defeat the application by conduct prior to the hearing if they receive notice (examples include applications for Anton Piller (search orders) and Mareva orders (seizure orders)). On an ex parte application, the applicant bears an onus to ensure that all of the material facts are placed before the court, even if they are not all in the party’s favour. This onus arises because the other party will not have an opportunity to be heard. A failure to provide full and frank disclosure may result in the court discharging the order on the application of the other party (and possibly professional discipline if done knowingly by a lawyer). When an injunction is made ex parte, pending further hearing of the parties, it is often referred to as an interim injunction. Interlocutory orders are generally made on the basis of affidavit evidence after a hearing in “court”. Most jurisdictions,

86 

 Civil Procedure

with the exceptions of the Federal Court, Tasmania and Western Australia, no longer maintain a distinction between “court” and “chambers”. Thus, all matters are conducted “in court”. The relevant rules define the jurisdiction of those matters that can be raised by chambers application. Deponents of affidavits can be cross-​examined with leave of the court, however leave is not readily given.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Common Types of Interlocutory Orders Injunctions [9.30] Interlocutory injunctions may be granted under the

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

Ch 9: Interlocutory Applications 

 87

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

sought:  Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Secondly, the party seeking an interlocutory injunction must make out a prima facie case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. Although reference is often made to Lord Diplock’s test in American Cynamid Co v Ethicon Ltd [1975] AC 396, whether there is a “serious question to be tried”, it is now settled that the Beecham test is applicable in Australia following the decision of the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. Generally, the court will not attempt to resolve disputed questions of fact or difficult questions of law in making a decision on an interlocutory application: American Cynamid Ltd at 407; Beecham Group Ltd at 622. Finally, the party seeking interlocutory injunctive relief must also show that the balance of convenience is in favour of granting the relief. Relevant considerations include the nature of the case or property in dispute, whether irreparable harm will be suffered by the party if the relief is not granted; whether damages will be a sufficient remedy if the injunction is wrongly granted; and the prejudice and detriment caused to the party against whom the injunction is sought. The court will decide whether the interlocutory relief sought would overturn or merely maintain the status quo; and finally, will consider the sufficiency of the applicant’s undertaking as to damages. A similar order to an interlocutory injunction, a property preservation order, may also be sought. Such an order may allow an applicant to access, observe, photograph or copy, and take samples of the defendant’s property. Generally, a defendant to an application for a property preservation order must be notified.

Search Orders –​“Anton Piller” Orders [9.40] Where there is a real possibility that a defendant may

destroy property, so that an applicant needs to take preservation action without notifying the defendant, the applicant

88 

 Civil Procedure

may apply on an ex parte basis for a search order: Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162; Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Such an order may provide the applicant with the right to enter premises, and to inspect and seize property of the defendant. As an ex parte application, the applicant is required to provide full and frank disclosure of relevant matters, including those in favour of the defendant. The order is quite an extreme one, and special rules have been developed by the courts (Practice Directions) relating to the manner in which search orders may be executed. Property preservation orders and search orders are concerned with preserving property that may be relevant to the final determination of a dispute.

Freezing Orders –​“Mareva” Orders [9.50] Freezing orders are concerned with ensuring that a

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

Ch 9: Interlocutory Applications 

 89

interlocutory freezing order, an applicant will need to establish, in addition to those matters already described, that the balance of convenience favours the grant of such an order. An application for a freezing order may be made on an ex parte basis.

Undertaking as to Damages [9.60]  Applicants for any of the interlocutory orders considered

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

above are required to provide the “usual undertaking as to damages”, which means that the applicant undertakes to meet any damage suffered by the defendant as a result of the grant of the interlocutory order.

Affidavits [9.70]  An affidavit is simply a document setting out a person’s

evidence or account in numbered paragraphs. However, affidavits are of increasing importance as they are often used in place of oral evidence in a modern civil litigation context. In the Family Court, for example, all evidence in chief is by way of affidavit. Affidavits are sworn before a person authorised by statute to take affidavits: usually a solicitor, justice of the peace, or Commissioner for declarations. The jurat (the swearing clause) must be appropriate for the nature of the oath or affirmation taken by the deponent (person making the affidavit). It is important to ensure that the proper oath is taken, as it will be professional misconduct to witness an affidavit that is not properly sworn or affirmed. The affidavit must set out the details of the person swearing the affidavit (“the deponent”), in accordance with the relevant rules; usually the full name, address and occupation of the deponent (person swearing the affidavit). If an affidavit is sworn on behalf of a company, the deponent must have actual authority to swear the affidavit: the best authority being a resolution of the board of the company. The affidavit will then begin with a

90 

 Civil Procedure

clause stating the deponent’s role in the company, for example, “I am the director of Acme Pty Ltd”, followed by, “I am authorised to make the affidavit on behalf of….”. The court rules provide for the form of an affidavit. Facsimile affidavits can usually be used if an undertaking to file the original in due course is given to the court. Affidavits must commence with the person’s name, address and occupation, such as:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

I, John Doe, of 2 Homely Crescent, Huntingdon, Solicitor, make oath and say as follows:

Thereafter, the evidence of the deponent is set out in numbered paragraphs. The affidavit is written in the first person as it is the evidence of the deponent. Affidavits in interlocutory proceedings may contain hearsay, provided that the source of the information is named or set out, and that the deponent swears to a belief in the truth of the information: Community Development Pty Ltd v Engwirda Construction Co [1968] Qd R 541. If the affidavit contains inadmissible evidence or scandalous or irrelevant material, the offending paragraphs may be struck out by the court, or in some cases the whole affidavit. A very useful paper on drawing affidavits has been published by the New South Wales Bar Association, QC Alan Sullivan, Written Evidence: Witness Statements and Affidavits as an alternative to oral evidence, available on the Association’s website, www.nswbar.asn.au.

Cross-​examination of Deponents [9.80]  The deponent of an affidavit may be required for cross-​

examination by any of the opposing parties. Most rules make provision for the service of a notice on the party relying upon the affidavit requiring that the deponent be available for cross-​ examination. If a party is put on notice that a deponent is required, they may not rely upon the affidavit without producing the deponent for cross-​examination: Re Blue Pines Pty Ltd [1988] 1 Qd R 13.

Ch 9: Interlocutory Applications 

 91

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

However, in many interlocutory applications, cross-​ examination will not be common, as the court will be relying upon the prima facie evidence of a party and will not be making a final determination of the facts until trial. Alternatively, the facts in many interlocutory affidavits may not be contentious, such as solicitors’ affidavits annexing correspondence. Cross-​ examination may only take place on an interlocutory application by leave of the court, and only if an issue of fact must be resolved to determine the application, such as an application to extend a limitation period.

10 Ending Proceedings Early Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Introduction [10.10]  Many actions commenced in the civil jurisdiction never

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

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Ch 10: Ending Proceedings Early 

 93

The effects of each of these mechanisms may differ. For instance, a summary judgment is a final judgment of the court and, apart from ex parte matters, can only be challenged on appeal. A party can apply to the court to have a default judgment set aside or varied. Dismissal for want of prosecution and discontinuance are not final judgments of the court. This means that it may be possible for the same cause of action to be subsequently re-​agitated in the court, although the parties themselves or the court can foreclose this. One reason for this is that it may be an abuse of process to allow an action to be re-​instituted. It should be noted that the superior courts, in exercising their inherent jurisdiction, may also dismiss a proceeding on the basis that it is an abuse of process. Settlement and alternative dispute resolution are also mechanisms by which proceedings may be finalised before trial, and are discussed in subsequent chapters. In this chapter, we look at five mechanisms by which proceedings may be ended before trial: (1) Dismissal for want of prosecution; (2) Default judgment; (3) Summary judgment; (4) Judgment on pleadings or admissions; and (5) Discontinuance

Dismissal for Want of Prosecution [10.20]  In all jurisdictions, the applicable rules of court provide

the criteria that permit the court to dismiss for want of prosecution: Federal Court Rules 2011 (Cth), r 5.22; (ACT), r 1110; (NSW), rr 12.7-​12.8; (NT), r 24.01; (Qld), r 280; (SA), rr 39, 123; (Tas), r 265; (Vic), r 24.01; (WA), O 33, r 2. Regardless, a court has an inherent power to strike out proceedings for want of prosecution if a plaintiff fails to act expeditiously. The principles to be applied were set out clearly in Birkett v James [1978] AC 297. In Birkett v James [1978] AC 297

94 

 Civil Procedure

the House of Lords stated that the court should only strike out proceedings for want of prosecution where: (a) the delay has been intentional and contumelious; or

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(b) the delay is inordinate and inexcusable so as to be likely to cause serious prejudice or give rise to a substantial risk that a fair trial is not possible. In Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd (No 2) [1998] 2 Qd R 551, the Queensland Court of Appeal questioned the test set forth in Birkett v James and suggested that it should not create a barrier against striking out proceedings for excessive delay, thereby encouraging dilatoriness. The decision to strike out must remain a discretionary one for the courts: Cooper v Hopgood & Ganim [1999] 2 Qd R 113. In Cooper v Hopgood & Ganim [1999] 2 Qd R 113, McPherson J provided a non-​exclusive list of facts that the court would consider as being relevant to the exercise of discretion to dismiss for want of prosecution: (1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced; (2) how long ago the litigation was commenced or causes of action were added; (3) what prospects the plaintiff has of success in the action; (4) whether or not there has been disobedience of Court orders or directions; (5) whether or not the litigation has been characterised by periods of delay; (6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant; (7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff ’s impecuniosity; (8) whether the litigation between the parties would be concluded by the striking out of the plaintiff ’s claim;

Ch 10: Ending Proceedings Early 

 95

  (9) how far the litigation has progressed; (10) whether or not the delay has been caused by the plaintiff ’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be; (11) whether there is a satisfactory explanation for the delay; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. These criteria were cited with approval by Atkinson J in Tyler v Custom Credit Corp Ltd [2000] QCA 178 and provide a useful summary of the factors that a court will take into account in determining whether the interests of justice require a case to be dismissed. Establishing prejudice as a result of delay can prove to be a logical conundrum, in that delay may cause memories to fade or be lost; however, there may be no way of establishing that the original “memory” existed or was of any use to a party. Prejudice is more easily established where witnesses or parties have died or are unable to be located. Alternatively, prejudice to a fair trial may be established where one party’s case is wholly reliant upon oral evidence of events that occurred over a long period, and the other party’s case is largely supported by documents. For example, this may occur in a claim be a de facto of a constructive trust where one party has met the mortgage payments and the other made significant contributions that are not demonstrated by financial records.

Default Judgment [10.30]  If a defendant fails to enter an appearance to a writ or

claim, or lodge a defence within the appropriate time provided for under the rules, the plaintiff may enter judgment by default. If the claim is for a “debt or liquidated amount” a final judgment may be entered for the amount claimed. If the claim is for damages, judgment may be entered with damages to be assessed. As

96 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

equitable remedies are discretionary, no default judgment may be entered for an injunction or similar claim. As judgment by default results in a judgment without the defendant being heard, the rules must be complied with strictly. Any failure to strictly comply with the rules will result in the judgment being set aside ex debito justitiae (that is, something that is due as a matter of right regardless of whether the defendant has a defence on the merits. Common examples include judgments signed too soon, and judgments for too great an amount. However, the court does have discretion to amend a judgment entered for the wrong amount, although this will rarely be exercised: City Mutual Life Assurance v Giannarelli [1977] VR 463. Often, a plaintiff will want interest on the default judgment. Where interest is contractually payable, it may be awarded as a liquidated amount: Philips Industries Holdings Ltd v Debrueys [1977] Qd R 193. Where interest is not payable pursuant to a contract, interest in the nature of damages may be payable pursuant to statutory authority. If this is the case, it must be awarded following a judicial (not registrar’s) determination, and must have been pleaded in the originating pleadings. If a default judgment is regularly entered, the defendant must demonstrate that it would be unjust for the judgment to stand: Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239. In Rosing v Ben Shemesh [1960] VR 173 the court identified a number of important considerations in the exercise of the discretion to set aside a default judgment: (a) the defendant should explain the default; (b) the defendant must apply to set aside the judgment without further delay; (c) the defendant must show that any prejudice suffered by the plaintiff may be adequately compensated by costs; and (d) the defendant must demonstrate an arguable defence on the merits.

Ch 10: Ending Proceedings Early 

 97

However, it will be rare that a court will not allow a defendant to defend a claim if they are able to demonstrate a prima facie or arguable defence even if the explanation of the delay is dubious: National Australia Bank Ltd v Singh [1995] 1 Qd R 377. In Cook v DA Manufacturing Co Pty Ltd [2004] at [19], Williams JA says that a meritorious defence may be the most influential factor in persuading a court to set aside a decision made in default.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Summary Judgment [10.40]  All jurisdictions provide for an application for judgment

without proceeding to trial, known as “summary judgment”. The primary purpose of an application for summary judgment is to assess whether any triable issues of fact exist that necessitate a full trial on the merits. If a court determines that there are no triable issues of fact, then summary judgment provides a speedy mechanism for resolution of the lawsuit in favour of the party who has established that they are entitled to judgment on the merits as a matter of law. The legislative purpose of summary judgment statutes and rules is to enable the court to prevent the use of frivolous defences and to prevent parties from using court processes to delay an inevitable judgment against them. As the effect of awarding a party summary judgment is to deny the opposing party the opportunity to present its case to the court –​a key feature of Australia’s adversarial system of justice –​summary judgment is viewed by the courts as a drastic remedy that should be granted with caution. However, it is in the interests of justice that judgment be rendered in cases where no triable issue of fact has been raised, as doing so cuts down on delay and prevents one party from dragging proceedings out to the detriment of other parties. Applications for summary judgment are generally made early in the action, usually before a defence is lodged and prior to the discovery phase of proceedings.

98 

 Civil Procedure

Under the older English rules, summary judgment was only available in a limited range of circumstances when a plaintiff was seeking judgment on a claim for a debt or liquidated demand. This has been extended to applications for possession of land and specific performance. In a number of Australian jurisdictions, summary judgment is now available in a wider range of cases.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

It is therefore necessary to consider the test to be applied by the courts in considering applications for summary judgment, as well as the definition of “debt or liquidated demand”, a restriction still in place in many jurisdictions in Australia.

Applications for Summary Judgment [10.50] An application for summary judgment must be sup-

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

Test for Summary Judgment [10.60] The test relating to summary judgment differs slightly

amongst the jurisdictions, and when comparing decisions it is important to compare apples with apples. In the Federal Court, the test is whether the defendant has a reasonable prospect of defending the plaintiff ’s claim: Federal Court Rules 2011 (Cth), r 31A. The need to consider summary judgment applications in view of the applicable rules was emphasised by the High Court

Ch 10: Ending Proceedings Early 

 99

in Spencer v Commonwealth (2010) 241 CLR 118. In considering r 31A, Hayne, Crennan, Kiefel and Bell JJ regarded the starting point for enquiry as whether

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

In general terms, on an application for summary judgment, once the applicant verifies the claim, the onus is then upon the respondent to show an arguable defence or that there is a real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. However, this is not a heavy onus, as Dixon J made clear in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 where his Honour stated that: A case must be very clear indeed to justify the summary intervention of the court to prevent a [party] submitting his (or her) case for determination in the appointed manner by the court with or without a jury. Therefore once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process.

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

100 

 Civil Procedure

remains the same. However, the plaintiff ’s evidence must be viewed at its best (unless it is inherently incredible). Even if the defendant is able to give evidence of facts that would defeat the plaintiff ’s claim, the plaintiff may still be entitled to test that evidence in cross-​examination: Webster v Lampard (1993) 177 CLR 598.

Judgment on Pleadings or Admissions Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[10.70] The court may dismiss the plaintiff ’s claim where the

pleadings fail to disclose a cause of action or right to relief. Under the older versions of the rules, the demurrer procedure remained open. If a defendant enters a demurrer he or she alleges that the plaintiff ’s pleading, as drawn, does not disclose a cause of action even if all of the allegations of fact were accepted. Demurrer is now applicable in the High Court jurisdiction only. Now, a party may simply apply to the court on a summons or application in the action for an order to terminate an action and give judgment in circumstances where no reasonable cause of action or defence is disclosed on the pleading. The process of “striking out” is not equivalent to summary judgment as the plaintiff ’s proceeding continues to exist and can be rectified by filing a compliant statement of claim. Similarly, if a defence is struck out, the defendant is in default of defence, and is at risk of having default judgment entered unless the defence is rectified. This process allows the court to ensure that parties comply with the rules for pleading. If there are admissions in the pleadings, answers to interrogatories or correspondence, the court may give judgment without a trial if the admissions of a party show that the party no longer has a defence. Judgment will only be granted where the admission demonstrates a clear and unanswerable case: In the Matter of Registered Trade Marks “Certina” and “Certina DS” (1970) 44 ALJR 191.

Ch 10: Ending Proceedings Early 

 101

Discontinuance [10.80]  A plaintiff may elect to discontinue proceedings: Federal

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Court Rules 2011 (Cth), r 26.12; (ACT), r 1160; (NT), r 25.02; (NSW), r 12.1; (Qld), r 304; (SA), r 107; (Tas), r 376; (Vic), r 25.02; (WA), O 23, r 2. In most jurisdictions this may be done without leave at any time before the defence is delivered or close of pleadings. Thereafter, leave to discontinue is required from the court. Where leave is required, it will be given unless the defendant would be prejudiced or deprived of some benefit of the proceedings. Usually a defendant can be adequately protected by making the leave conditional. The discontinuance of an action leaves the plaintiff liable to the defendant for the costs of the proceedings. However, discontinued proceedings do not result in a judgment and therefore the plaintiff may bring fresh proceedings. The court may order a stay of a new action until the defendant’s costs of the previous action have been paid.

11 Errors and Amendment Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[11.10]  There are many opportunities for the litigant to fail to

comply with the rules of procedure when pursuing a claim in the courts. The most common failures are: • failure to use the correct form; • failure to comply with time limits; and • failure to properly plead a case from the outset. Most errors and defaults fall back to a basic failure of practitioners to comply with fundamental work practices when litigating. The lawyer who: (1) always obtains detailed instructions from the outset; (2) undertakes the tasks of litigation in a timely way; and (3) pays close attention to the court rules, will rarely have difficulties. Indeed, if close attention to the tasks of litigation is maintained, counsel can be effectively briefed at any stage of proceedings for advice. However, it is inevitable that even the most diligent practitioner will have difficulties. For example, the client who fails to bring in the documents within the time allowed for a defence to be entered, or the client who is certain that he or she was employed by one person, when in fact they were employed by another. Practitioners will always be faced with the inevitable problem of clients being unable to afford to pay for steps to be taken for lengthy periods, for which there is often no remedy.

Irregularities [11.20] Formerly, a distinction was drawn between errors

that were simply irregularities and errors that resulted in 102

Ch 11: Errors and Amendment 

 103

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

the step or action being a nullity. This distinction has been abolished in all jurisdictions following Re Pritchard (decd) (1963) Ch 502, where proceedings commenced in the wrong registry of the High Court of England were held to be a nullity. The distinction is difficult to determine. In Plowman v Palmer (1914) 18 CLR 339, Isaacs J considered that it was a question of whether there was jurisdiction to do the act at the time, or whether it was unauthorised or prohibited. An authorised act done in an unauthorised manner is an irregularity and an unauthorised or prohibited act is a nullity: Sydney Cove Redevelopment Authority v Maniaci [1972] 1 NSWLR 453. Following Re Pritchard (1963) Ch 502, in all jurisdictions, all defects are now treated as irregularities, which are considered to be waived if the other party takes a step in the proceedings. If another party takes objection, they must do so quickly by application to the court to set aside the irregular act.

Time and Delay [11.30] The rules generally provide time limits for all steps

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

104 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Usually the day upon which time commences is excluded from the calculation. Thus, if a party has 28 days to file a defence after the service of the statement of claim, then if the statement of claim is served on 1 June, the defence must be filed by the end of 29 June. If the number of days is expressed as “clear days” the last day is also excluded from calculation. The terms “year” and “month” refer to calendar years or months. A court has an inherent power to abridge or extend time limits provided for in the rules, and usually has a specific power under the rules. A court does not have an inherent power to alter time limits set by statute. In determining whether to alter a time limit, a court must consider the “interests of justice”: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257.

Self executing orders [11.40]  A self executing order (sometimes called a “guillotine”

order) is an order by a court that a party take a step or perform some act, and in default, orders that their action or defence be struck out. While such orders may be appealing to a busy court with large numbers of recalcitrant litigants, the potential for injustice is great if the defaulting party has good reasons to explain the default. In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, it was held that the power of the court to extend time for complying with an order allowed the defaulting party to apply for an extension of time in which to comply, even if the time set in the order had expired. In jurisdictions where the rules do not specifically provide for the court to extend the time to comply with an order, the court appears to have power to extend time after the expiration of the period as part of its inherent jurisdiction: Samuels v Linzi Dresses Ltd [1981] QB 115.

Ch 11: Errors and Amendment 

 105

Delay Delay in Serving Initiating Process

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[11.50] If an initiating proceeding is not served within one

year (or some other period specified in the rules) it becomes stale and must be renewed to allow for valid service. In the Federal Court, an application must be served prior to the date set for the first directions hearing: Federal Court Rules 2011 (Cth), r 8.06. Proceedings will be renewed if the test set out in the relevant rules is satisfied. In most jurisdictions, this is “good cause” or “good reason” and not a more stringent test of “exceptional circumstances”: Finlay v Littler [1992] 2 VR 181 at 186. In the ACT and Qld, the applicant must also be able to establish that they have made reasonable attempts to serve the proceedings within the year: (ACT), r 74; (Qld), r 24. However, this will only be an issue in cases where the limitation period has since expired as the plaintiff may issue fresh proceedings in other cases. In the NT, SA, Tas, Vic and WA, the courts have an unfettered discretion to renew a stale originating process: (NT), r 5.12; (SA), r 39; (Tas), r 107; (Vic), r 5.12; (WA), O 7, r 1. In NSW, unless the court orders otherwise, service of a stale originating process does not invalidate the proceeding as it is treated as an irregularity: Civil Procedure Act 2005 (NSW), s 63.

Taking a Step after a Delay [11.60]  In some jurisdictions, when there have been no steps

taken for a year, a party may not proceed without first giving all of the other parties one month’s notice of the intention to proceed: (NT), r 3.05; (Qld), r 389; (Vic), r 3.06; (WA), O 3, r 7. In Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, the Full Court in Queensland considered the nature of a “step in the proceeding” and determined that it must be a step to carry the proceeding forward. Acts done in preparation of litigation, such as the preparation of affidavits, do not count for this purpose.

106 

 Civil Procedure

Amendment [11.70]  In some circumstances, a party may amend pleadings as

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

of right under the court rules. Generally, however, an amendment must be by leave. The principles applicable to a grant of leave to amend were discussed in Ketteman v Hansel Properties Ltd [1987] AC 189. The House of Lords held that the court is guided by where the justice lies in exercising its discretion. The court declined to limit the circumstances that may be relevant, but provided a useful summary of the principles: 1. amendments should be allowed so as to enable the real dispute to be decided; 2. amendments to correct honest mistakes should be allowed as it is not the function of the court to punish for mistakes by deciding cases otherwise than in accordance with parties’ rights; 3. amendments should generally be allowed provided that they will not prejudice the other party; and 4. there will be no injustice to another party if that party can be adequately compensated by costs. The stage at which amendment is sought is always a relevant factor. While amendments prior to trial will generally be allowed, amendments after the commencement of trial, or after the close of evidence are less likely to be entertained as the risk of prejudice is then great: Gordon v MacGregor (1909) 8 CLR 316. Case management principles will be relevant, however, they do not override the primary principle that the court is guided by where the justice lies. The High Court, in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered a late application for leave to amend. The Aon High Court specifically disagreed with statements made in the earlier High Court decision of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In Aon, the High Court said that payment of costs was not always (as was contemplated in JL Holdings) sufficient compensation to a party impacted by a late amendment. Rather,

Ch 11: Errors and Amendment 

 107

a court must consider all of the factors relevant to an exercise of its power to permit an amendment, including delay and costs. Following the decision by the High Court in Aon, the following guidelines for conserving amendment were set out in Hartnett v Hynes [2009] QSC 225 at [27]:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. (footnotes omitted) 2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense. 3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues. 4. The Court should not be seen to accede to applications made without adequate explanation or justification. 5. The existence of an explanation for the amendment is relevant to the Court’s discretion, and “[i]‌nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”. (footnotes omitted) 6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment. 7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs. 8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.

108 

 Civil Procedure

9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources. 11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense. 12. The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period. These guidelines were accepted by the Queensland Court of Appeal in Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 at [74]. The formal process for amending pleadings is set out in the rules. The rules allow for the plaintiff to amend, without leave, a pleading prior to the close of pleadings (or, in Queensland prior to the filing of a request for trial date): Federal Court Rules 2011 (Cth), r 16.51; (ACT), r 505; (NT), r 36.03; (NSW), r 19.1; (Qld), rr 377, 378; (SA), r 54; (Tas), r 428; (Vic), r 36.03; (WA), O 21, rr 1, 3. However, the defendant may apply to the court to have the amendment struck out. Amendments by leave must be in accordance with the leave granted. Amendments must be marked, usually by red ink striking through the words to be deleted and underlining the words that are added. Copies of amended documents are filed and served on the other parties.

Ch 11: Errors and Amendment 

 109

Limitation Periods [11.80]  With the exception of Tasmania, the rules permit certain

amendments that raise statute barred matters in circumstances where the relevant limitation period has not expired at the time of commencement, but expired before the finalisation of the matter:  Federal Court Rules 2011 (Cth), r 8.21; (ACT), r 503; (NT), r 36.01; NSW: Civil Procedure Act 2005 (NSW), s 65; (Qld), r 376; (SA), r 54; (Vic), r 36.01; (WA), O 21, r 5. The rules allow amendments of the following nature:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• to correct a mistake in the name of a party; • to change the capacity in which the plaintiff has sued the defendant; and • to add a cause of action that arose after the proceeding commenced, provided that it arises out of the same or substantially the same facts as those originally pleaded. At common law, prior to the enactment of the aforementioned rules of court and legislation, an amendment would not be allowed if it had the effect of defeating a defence based upon the expiration of a limitation period (amendments to pleadings take affect retrospectively). This principle was set forth in Weldon v Neal (1887) 19 QBD 394 by Lord Esher MR. In NSW, the principle in Weldon v Neal (1887) 19 QBD 394 was rejected due to the wide power of amendment provided for under the NSW rules that applied at the time: McGee v Yeomans [1977] 1 NSWLR 273. Nowadays, in the Federal Court, New South Wales, Victoria, Queensland and the Northern Territory, the rule in Weldon v Neal (1887) 19 QBD 394 has been abolished by statute. This only applies to limitations periods that have expired after the commencement of proceedings. In the ACT, SA, Tas and WA, the rule in Weldon v Neal (1887) 19 QBD 394 continues, despite the existence of rules that may appear to indicate the contrary. Further reading on this issue can be found at pages 319-​323 of B Cairns, Australian Civil Procedure (11th ed, Lawbook Co., Sydney, 2016).

110 

 Civil Procedure

Names of Parties [11.90]  When a new party is added to existing proceedings, the

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

addition of the party takes effect on the date that leave to add the party is obtained. However, a party can seek leave to amend to correct a mistake in the name of a party if the amendment would not prejudice any party. The principles for determining an application to amend the name of a party (that is to correct a misnomer), which may have the effect of substituting another party, were considered by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, where McHugh J considered that there are two types of misnomer: 1. “[T]‌he plaintiff may make a mistake ‘in the name of a party’ because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person’s name”; or 2. “[T]‌he plaintiff may make a mistake ‘in the name of a party’ because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description”.

12 Discovery Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.10]  Discovery, also sometimes referred to as “disclosure”, is

a process of obtaining documents and admissions from other parties to the litigation and from non-​parties. This may be by inspection of documents, from answers to interrogatories, or through utilisation of other disclosure tools, such as notices to admit. In many cases, discovery will be essential to obtaining the evidence necessary to prove one’s own case. On the simplest level, it may be that the original contract as signed by the parties is held by the defendant: discovery and production of the contract will be necessary for the plaintiff to prove its case. On a more complex level, discovery may yield important diary notes, books and records, or information leading to further enquiries. Discovery usually occurs after pleadings close (as the pleadings define the issues and thereby the width of discovery). However, in some cases discovery may be obtained prior to the close of pleading: commonly, this occurs in defamation cases against the electronic media where discovery of the tape of the broadcast is needed to enable the precise words to be pleaded. In limited circumstances, discovery may be obtained against a person in order to discover the identity of the defendant: Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; Re Pyne [1997] 1 Qd R 326.

History [12.20]  Discovery is not a traditional common law remedy, but

rather a creature of equity. However, some limited forms of 111

112 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

discovery have always been available at common law. The common law provided procedures for the inspection of three classes of documents: (1) documents under seal that were referred to in pleadings; (2) documents that a litigant was a party to, in fact or in interest; and (3) public documents. It was only through an application to the Court of Chancery that discovery similar in concept to modern discovery was available. Despite statutory intervention to extend discovery to the common law, the equitable remedy remains an independent source of power: Re Pyne [1997] 1 Qd R 326.

Purposes of Discovery [12.30]  Discovery has a number of purposes. The most impor-

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

Discovery must be given even if it discloses material contrary to the party’s case. There are, however, limited situations where a party may claim privilege from making discovery. On the issue of privilege, Lord Langdale went on to state that: It need not be observed what risks attend all attempts to administer justice, in cases where relevant truth is concealed, and how

Ch 12: Discovery 

 113

important it must be to diminish those risks, and that if there be any cases, in which for predominant reasons, parties ought to be permitted or to be held privileged to conceal relevant truth, those cases ought to be strictly defined, and strictly limited by authority.

Today, there are three main purposes of pre-​ trial discovery, subject to three important restrictions. It is convenient to consider pre-​trial discovery as being for the following three general purposes:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1. identifying the defendant or properly framing a party’s case; 2. ensuring that the parties have access to evidence that may only be available from their opponent or a party unprepared to provide it to assist with proof of the case, or damaging their opponent’s case; and 3. reducing surprise and thereby limiting issues, ensuring fairness and promoting settlement. These general purposes are subject to three implicit general restrictions that may be summarised as follows: 1. the scope of discovery is limited by the facts on which the parties have joined issue in the pleadings; 2. the use of discovered information is strictly for the purpose of the conduct of the cause or matter in which discovery was given; and 3. discovery is subject to limited rights to claim privilege. Generally, discovered material may only be used for the purpose of the litigation in which they are discovered as a result of an implied undertaking on the party receiving discovery. To use a document for any other purpose is a contempt of court: Hearne v Street (2008) 235 CLR 125; Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509. In Hearne v Street (2008) 235 CLR 125, a director of Luna Park Sydney and an officer of Luna Park Sydney’s parent company provided a portion of a nearby residents’ affidavit, obtained during proceedings seeking to restrain noise from the reopening of Luna Park, to the Minister for Tourism, Sport and Recreation in support of Luna Park’s request that the Minister endorse legislation

114 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

that would be of benefit to Luna Park Sydney. The director and officer were found to have breached the implied undertaking not to disclose material obtained during disclosure to non-​ parties, in this case the Minister. They were thereafter found in contempt of court. The director and officer were, at first instance, found not personally bound by the implied undertaking. However, the NSW Court of Appeal held that they were personally bound by the same undertaking as Luna Park Sydney, and had committed contempt by disclosing the documents to the Minister. Although the director and officer successfully sought special leave to appeal to the High Court, their appeal was dismissed. The High Court held as follows: • Directors and officers of a corporate litigant are bound by an implied undertaking not to use documents and information obtained during litigation for an ulterior purpose. • In order to establish a breach of the implied undertaking, it is only necessary to show that the director or officer knew the material was produced during litigation. It is not necessary to prove that the director or officer was aware of the implied undertaking. • The implied undertaking may bind other third parties who receive material obtained during litigation. In limited circumstances, however, a court may give leave for a party to use discovered material for other purposes: Bailey v Australian Broadcasting Corp [1995] 1 Qd R 476. Legal Practitioners have important duties with respect to the discovery process. A practitioner is under an ethical obligation to ensure that full discovery is made. In addition to professional conduct rules, solicitors in the ACT, NSW and Qld are under additional obligations to explain disclosure requirements to their clients: (ACT), r 608; (NSW), r 21.4; (Qld), r 226. If a client refuses to make proper discovery, the appropriate course for the practitioner is to seek leave to withdraw and cease acting for the client: Myers v Elman [1940] AC 282. The consequences

Ch 12: Discovery 

 115

of a failure to make complete discovery can be significant, for example: • a party may not be able to rely upon a document produced at trial if it ought to have been discovered, or suffer an adjournment with costs; • a false affidavit of discovery can be significant in assessing the credit of a party, as the party has, at least in theory, committed perjury;

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• a re-​trial may be ordered if important documents were not discovered and only came to the attention of the other party after trial; • a legal advisor who knowingly participates in a failure to provide full discovery commits professional misconduct; and • a legal advisor who fails to properly advise a client as to their obligations to provide discovery may be liable in negligence.

Discovery of Documents [12.40] Discovery of documents is the most common form of

discovery used in litigation. A document is discoverable if it is relevant to an issue on the pleadings and is in a party’s possession (or in some jurisdictions in the party’s power or control). A document is defined by the court rules and Acts Interpretation Acts, and may include a video tape: Radio Ten Pty Ltd v Brisbane TV Ltd [1984] Qd R 113. The principle to be applied to determine whether a thing is a document is a functional one –​whether the item was intended to convey information: Grant v Southwestern & County Properties Ltd [1974] 3 WLR 221. Thus, even without the statutory definitions, data sticks, computer discs and CDs would be “documents”. Many practitioners use the term “discovery” to refer to discovery of documents rather than in its wider sense. The process for discovery of documents is very simple. In most jurisdictions the party seeking discovery delivers a “notice requiring

116 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

discovery” to the other party (using the form set out in the rules) after the close of pleadings. In some jurisdictions (see (Qld), r 214), discovery must be made automatically at the close of pleadings, making a notice unnecessary. The party making discovery must provide an “Affidavit of Documents” (or list of documents in some jurisdictions) which is simply an affidavit setting out all of the documents in the party’s “possession, custody or power” that relate to a matter in issue in the litigation. The affidavit normally has two schedules, one listing the documents that may be inspected and the other listed documents for which the party claims privilege. The schedules are further divided into documents still with a party and those no longer with the party, for example a contract delivered to the other party. The documents must be described in such as way as to allow their identification, although it is not necessary to give sufficient information to allow a view to be formed as to whether a document is privileged. If there are large numbers of documents they may sometimes be usefully placed in bundles, for example a “bundle of invoices numbered 110900 to 112000”: Walker v Poole (1882) 21 Ch D 835 (UK). A party has a right to inspect any document that is discovered and not privileged. In the Supreme Court of Queensland, where discovery is automatic, the party must deliver copies of the discovered documents (together with a list of the documents in the prescribed Form 19) or make them available for inspection (in a logical order with a person available to explain the order of documents if necessary and copying facilities) –​there is no requirement for an affidavit of documents. The Qld rules also allow for disclosure in waves in cases involving voluminous discovery: (Qld), r 220. Discovery in the Federal Court is only permitted with the Court’s leave: the intent of the rules is to prevent unnecessary discovery and the costs that correspond: r 20.12. In NSW, discovery may not be required simply by notice to another party –​a court order must be obtained, specifying the

Ch 12: Discovery 

 117

type or class of documents to be discovered: (NSW), r 21.2. General discovery is not permitted, rather, the court may order discovery of particular classes of documents. In NSW, discovery and inspection are only allowed in personal injury and fatal accident cases if the court is satisfied that there are special reasons: (NSW), r 21.8.

Scope of Discovery

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.50] The scope of discovery is determined by reference to

the issues on the pleadings. The rules in the ACT, NT, Tas, and WA require discovery of all documents relating to a question in issue. The width of discovery under rules in this form is determined by the classic Peruvian Guano test from Companie Franciere et Commerciale du Pacifique v Peruvian Guano (1882) 11 QBD 55 where Brett LJ stated: It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may –​not which must –​either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly”, because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control… In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs’ case, but also at the statement of defence and the defendants’ case…

This test has been approved in the High Court: Mulley v Manifold (1959) 103 CLR 341. Importantly, the width of discovery of documents is not limited by the admissibility of the document.

118 

 Civil Procedure

In the Federal Court, where discovery has been permitted, r 20.14 mandates the discovery of documents: (1) on which the party relies; (2) which adversely affect a party’s case; and (3) which support a party’s case. Similar provisions apply in Tasmania: (Tas), r 382, and Victoria: (Vic), r 29.01.1.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

In New South Wales, the scope of discovery has been limited to exclude documents that merely lead to a train of inquiry:  National Australia Bank v Idoport Pty Ltd [2000] NSWCA 8; (NSW), r 21.2. In Queensland and South Australia, the width of discovery has been narrowed considerably by specific rules of Court limiting discovery to documents that are “directly relevant”: (Qld), r 211; (SA), r 136. The limitation upon discovery in these jurisdictions was primarily to reduce the costs of litigation and ensure that discovery could not be used oppressively. The test of relevance used by McHugh J in Palmer v The Queen (1998) 193 CLR 1 at 24, n 1, has been adopted by the court in Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (No 5) [2001] SASC 335: The word “relevant” means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-​existence of the other.

In Robson v REB Engineering Pty Ltd [1997] Qd R 102, at 105 Demack J found that “directly relevant”: Should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, “directly relevant” means something which tends to prove or disprove an allegation in issue.

Commonly, parties will have files of their own and other relevant documents of the following types: • Diaries, Memos, Emails, Minutes, Tax Returns, etc; • Financial statements, Credit card statements, cheque butts, etc;

Ch 12: Discovery 

 119

• Travel documents; and • Reports, working papers and drafts. Not all of these types of documents will be relevant to all cases. However, it is important to consider the types of documents that would be likely to exist as most litigants need considerable prompting in the discovery process.

Possession or Power

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.60]  Whether a document is in a party’s “possession or power”

is also a difficult issue in some cases. The phrase varies from jurisdiction to jurisdiction, using terms such as “possession”, “custody”, “control” and “power”. Generally “possession” refers to actual physical possession of documents pursuant to a right to possession of the document. The term “custody” refers to the simple physical possession of a document, such as that of an employee. The terms “control” and “power” refer to an enforceable right to inspect or obtain possession of the document. An important discussion of the meaning of “power” appears in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 where the House of Lords found that a shareholder did not have power over documents of a company, even though the shareholder may have more than 50% of the shares and in theory could appoint directors that would make the company disclose the documents. Similarly, a party will not be required to discover documents that it could obtain through Freedom of Information legislation:  Theodore v Australian Postal Commission [1988] VR 272. However, documents lodged with the Commissioner of Taxation were discoverable by the party who lodged them on the basis that the party lodging the documents would have a prima facie right to copies of the documents it lodged: Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1987] VR 113.

Challenging Discovery [12.70]  The affidavit or list of documents discovered by a party

is considered to be final, except where insufficiency in the

120 

 Civil Procedure

affidavit or list can be demonstrated. If discovery is successfully challenged, the court may order that a party simply make further and better discovery, or alternatively file an affidavit as to the existence or otherwise of a list of documents alleged to be undiscovered. In Mulley v Manifold (1959) 103 CLR 341 the High Court summarised the positions as follows:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

… the insufficiency [of discovery] might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive.

In the Federal Court, r 20.22 provides that a party may apply to the court for a more detailed list of documents. In Victoria, the Civil Procedure Act 2010, s 57, provides that a deponent may be cross-​examined on their affidavit if it is reasonably suspected that discoverable documents have been withheld. In South Australia, a party may challenge the affidavit of documents if there is “reason to doubt” that the party has made proper disclosure: (SA), r 145. In the ACT, if a court is convinced that a party has not adequately disclosed discoverable documents, it may order a party to make a “further and better affidavit of disclosure”: (ACT), r 606.

Ongoing Duty of Disclosure [12.80]  There is a continuing obligation to provide disclosure of

documents that come into party’s possession following delivery of the affidavit or list of documents: Federal Court Rules 2011 (Cth), r 20.20: (ACT), r 611; (NT), r 29.16; (NSW) continuous disclosure applies where disclosure has been ordered; (Qld), r 211; (SA), r 136; (Vic), r 29.15; (WA), O 26, r 2A.

Interrogatories [12.90]  Interrogatories (referred to as “pre-​trial examination by

written questions” in SA) are a set of written questions delivered

Ch 12: Discovery 

 121

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

by one party, which must be answered in writing by the other, generally verified by affidavit. The answers given may then be tendered as evidence in the trial of the matter. The purpose of interrogatories is to obtain admissions that will assist in proving a case or damaging an opponent’s case. Interrogatories serve to limit the issues and provide a simple and inexpensive method of proof. If damaging admissions are made in answer to interrogatories, cases are also more likely to settle. In some circumstances, interrogatories will be essential as a particular fact may only be able to be proved by evidence from an opponent. A classic example of a case where interrogatories are often allowed is a fatal accident case, where the plaintiff has no admissible evidence of the circumstances of the accident: Dunbar v Perc [1956] VLR 583. In Green v Green (1913) 13 SR (NSW) 126, Simpson J set out four purposes for which interrogatories are utilised: 1. to obtain further details of the case to be met, in the nature of a demand for further and better particulars; 2. to obtain admissions from the opposite party to support the interrogating party’s case; 3. to obtain admissions which damage the opponent’s case; and 4. where the defendant occupies a fiduciary position which imposes an obligation to keep accounts, to set out a summary of them in answer to the interrogatories. However, the process of interrogation has become particularly technical. This has led to a number of jurisdictions requiring leave of the court before administering interrogatories. The specifics of when leave is required vary by jurisdiction, and the rules should be consulted carefully in this regard. In Qld, there is a further constraint on the number of questions (30) that may be asked without the need for additional leave: (Qld), r 229. To obtain leave, the applicant must generally show that the interrogatories are reasonably necessary, or in Qld that there is no other reasonably simple and inexpensive method to obtain evidence of the facts to which the interrogatories are directed.

122 

 Civil Procedure

Drawing Interrogatories [12.100]  In determining what interrogatories may be delivered

(what questions may be asked) there are a number of important principles: 1. Interrogatories must be relevant to the matters in issue in the pleadings and may not go simply to credit.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

2. Interrogatories cannot be directed to simply discovering the names of witnesses or the way in which the other party will prove his or her case. 3. Interrogatories must not be “fishing”. That is, questions must relate to the circumstances of the case as known and cannot be wide-​ranging in the hope of finding something from which to create a case. 4. Interrogatories cannot “cross-​examine” as to the content of a document –​the document itself may be referred to. However it is permissible to ask for an explanation of some symbol or writing, confirmation of a signature, or whether a party has had a document at a particular time, etc. Only if a document is lost or destroyed may interrogatories ask after its contents: Sharpe v Smail (1975) 49 ALJR 130. It is important to be careful in drafting the interrogatories delivered, as parties generally receive only one opportunity to interrogate. On a practical level, the most common failings of those drawing interrogatories are: • a failure to limit the questions to the time relevant to the case (eg asking if the plaintiff has ever seen the defendant rather than limiting the question to the time in issue on the pleadings); • questions containing assumptions as to facts that have not been admitted (eg the classic objectionable question: when did you stop beating your spouse?); and • multi-​part questions that should be divided into a number of discrete questions.

Ch 12: Discovery 

 123

Answering Interrogatories [12.110]  A party must answer interrogatories to the best of his

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

or her knowledge, information and belief. If a party has a right to information held by employees or agents, the party must make enquires of those persons for the purpose of answering the interrogatories. The interrogatories must then be answered in light of the information obtained. In Sharpe v Smail (1975) 49 ALJR 130, Gibbs J explained this principle as follows: It is not enough to say that he [the party answering] has no knowledge, because he is bound also to answer according to information acquired from servants or agents who have gained it in that capacity, and where appropriate his answer must show that he has made all proper inquiries and that having made them he has no information enabling him to answer further … The answer to these interrogatories is insufficient: it does not show that the first defendant has made all proper enquiries and is answering to the best of his knowledge, information and belief … Belief is not the same as knowledge and a party cannot truthfully swear that he has no belief based on information in his possession simply because he does not know that the information is true. Although he is not bound to say that he believes what he does not he is not entitled to treat any information that he may receive with baseless suspicion, refusing to entertain belief unless it has ripened into certain knowledge. He cannot by refusing to believe information when there is no reason to doubt its truth escape from his obligation to answer to the best of his knowledge, information and belief. Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example, it may be supported by other credible material.

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

124 

 Civil Procedure

a responding party to make reasonable enquiries of employees and agents: (ACT), r 634.

Objections to Answering [12.120] Objection may be taken to the interrogatories as a

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

whole, if the bulk of the questions are objectionable, or to particular questions. If an objection is taken to a particular question, the grounds of the objection should be set out. Normally, all possible grounds are set out in the objection. In most jurisdictions, the grounds for objecting to interrogatories are prescribed by the relevant court rules. In the Federal Court, NSW, NT and Qld, the only grounds for refusal are contained in the rules: Federal Court Rules 2011 (Cth), r 21.03; (NSW), r 22.2; (NT), r 30.07; (Qld), r 233. Aside from relevance and technical objections (as discussed above) common examples of objectionable interrogatories are discussed below.

Scandalous [12.130] Scandalous interrogatories are objectionable. A good

example of scandalous interrogatories appears in Kemble v Hope [1894] 10 Times L R 254, where the plaintiff, in an action alleging that a defendant had falsely represented that a tenant was of good credit asked whether the tenant was “… a chaste woman, of good moral character”.

Unfair Purpose [12.140]  Similarly, an interrogatory which is not bona fide will

not be allowed. For example, an interrogatory designed to obtain an acknowledgment of a debt, to overcome a limitation period is objectionable: Lovell v Lovell [1970] 1 WLR 1451. Interrogatories designed to discover the trade secrets of another party may be oppressive: American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193.

Ch 12: Discovery 

 125

Oppression [12.150] Interrogatories may be objectionable on the basis of

oppression. For example, in Alexander v Fitzpatrick [1981] Qd R 359 a set of 54 interrogatories of multiple parts, totalling 586 questions, on quantum in a personal injury case were struck out.

Privilege [12.160]  A common ground for objection, the concept of privi-

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

lege, which applies to discovery in general, is discussed below.

Inspections and Examinations [12.170] Inspection of discovered documents is provided for in

the rules relating to the discovery of documents. The rules also provide for inspection of things and places relevant to the matters in issue on the pleadings. Thus, it is not uncommon for a plaintiff in a personal injury action against an employer to seek an inspection of the workplace or machinery where the injury occurred. A party may also request another party to undergo a medical examination. In some jurisdictions there are statutory powers for the courts to make such orders (these are common in compulsory motor vehicle and workplace insurance schemes). However, the court has an inherent power to stay proceedings if a party refuses to undergo a medical examination.

Notice to Admit [12.180]  A notice to admit is a notice to another party requiring

them to admit facts relevant to the pleadings. In some jurisdictions, a failure to answer a notice to admit results is an implied admission in the terms of the notice. Thus, a notice to admit can place considerable pressure upon the opposing party. If the admission is not made and the facts are ultimately proven, then the costs of proving the facts outlined in the notice

126 

 Civil Procedure

may be ordered against the party failing to make the admission, regardless of the ultimate outcome of the case. Thus, although a “notice to admit” does not directly force any action by an opponent, it increases the pressure upon an opponent to make admissions of facts that are not seriously in issue. Any admission made may also be available to assist in an application for judgment on admissions.

Non-​party Discovery Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.190] Discovery of documents may also be sought from a

non-​party. As this is a substantial interference with the rights of a non-​party, litigants must first pursue all other avenues in an effort to obtain the information sought by non-​party discovery:  Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R 167. In jurisdictions where the rules provide a process for non-​ party disclosure, that process, rather than a subpoena, should be utilised: Re Leighton Contractors Pty Ltd v Western Metals Resources Ltd [2001] 1 Qd R 261.

Other Forms of Discovery [12.200] In all jurisdictions, a Statement of Loss and Damage

must be provided in personal injuries claims. In the NT and Victoria, the rules provide for oral discovery in lieu of interrogatories if the parties consent: (NT), r 31.02; (Vic), r 31.02. However, this option is rarely agreed to. In the United States, oral discovery (taking depositions) is a significant part of the pre-​trial process.

Objections Relevant to All Forms of Discovery [12.210] Documents need not be produced for inspection,

or interrogatories answered, if the document or answer falls

Ch 12: Discovery 

 127

within one of the exceptions to discovery. The most common exception in civil litigation is legal professional privilege, however other privileges exist and an exception exists to prevent oppression.

Privilege

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.220] There are five types of privilege: legal professional

privilege; privilege against self-​ incrimination; public interest privilege; without prejudice communications and statutory privilege. Each of these types of privilege is a basis for refusing to answer interrogatories, or providing inspection of documents. These areas are more properly considered in the context of an evidence textbook, but given their application presently, will be discussed briefly.

Legal Professional Privilege [12.230]  Legal professional privilege covers many (but not all)

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

128 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

VR 296. However, the privilege attaching to confidential legal advice will not cover all communications with a solicitor. For example, a solicitor’s trust account ledgers usually do not reveal confidential legal advice: Allen, Allen & Hemsley v Deputy Commissioner of Taxation (1989) 20 FCR 576. Similarly many conveyancing file notes and other “transaction” work carried out by solicitors will not be for the purpose of giving confidential legal advice. The High Court’s decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 firmly entrenches the dominant purpose test as the test to be used in determining whether legal professional privilege can be taken at common law in Australia. The Esso Australia decision also creates a consistency between the common law and the Evidence Act 1995 (Cth) in determining whether a communication is privileged. In Esso Australia, the High Court, by a 4-​2 majority, broadened the scope of legal professional privilege, overturning the decision in Grant v Downs (1976) 135 CLR 674 (which created a “sole purpose test”). Legal professional privilege may be waived by the client (not the legal advisor). Waiver may occur expressly, by failing to claim privilege or by implication. Where there is inadvertent disclosure, significant problems arise as to the state of the privilege on the privileged material: see generally Goldberg v Ng (1995) 185 CLR 83. In Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233, the Queensland Court of Appeal concluded that it was necessary for a “lawyer” to be admitted to practice for a common law claim of legal professional privilege to be sustainable.

Privilege against Self-​Incrimination [12.240] A party is not required to disclose material that may

incriminate the party. This substantive rule of law will apply even in cases where the party claiming the privilege stands in a fiduciary relationship: Reid v Howard (1995) 184 CLR 1. A party is not required to deliver an affidavit or list of documents that reveals

Ch 12: Discovery 

 129

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

the existence of incriminating documents if the mere existence or possession would amount to self-​incrimination: Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257. In considering a claim for privilege against self-​incrimination, the mere fact that the claim is made is not conclusive: the court must consider the claim. To succeed in the claim, the party must show that there is a reasonable ground to apprehend danger of prosecution: Triplex Safety Glass Co Ltd v Lancegay Safety Glass (1934) Ltd [1939] 2 KB 395. The offence must be a substantial one and the risk of prosecution real and not fanciful. In some jurisdictions, this is overcome by conferring upon the court a statutory power to grant an indemnity certificate covering the incriminating information: Federal Court, ACT, NSW, Tas and WA. While some jurisdictions allow the court to give an indemnity certificate, the device of ordering discovery on condition that the material not be provided to prosecuting authorities, is not available without statutory authority: Reid v Howard (1995) 184 CLR 1. The right to claim privilege against self-​ incrimination was thought to extend to corporations until the decision of Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. In some States and Territories, there are also legislative provisions which state that privilege against self-​ incrimination is not available to corporations. A claim for privilege against self-​incrimination may also be made if the discovery would tend to expose the party to a forfeiture or penalty. If the proceedings are solely for the recovery of a penalty or forfeiture, no discovery need be made by the defendant: R v Associated Northern Collieries [1910] HCA 61.

Public Interest Privilege [12.250]  Public Interest privilege (formerly referred to as Crown

Privilege) extends beyond government departments to include instrumentalities carrying out public administration. Thus, the

130 

 Civil Procedure

privilege was found to extend to the Law Institute of Victoria’s statutory disciplinary duties: Law Institute of Victoria v Irving [1990] VR 429.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

In order to determine if the privilege can be claimed, the court will examine the document: Sankey v Whitlam (1978) 142 CLR 1. While a certificate from the Minister that disclosure would not be in the public interest is strong evidence, the certificate is not conclusive. In deciding a claim, the court must determine if the discovery is relevant to the proceedings. If the material is relevant or likely to be relevant, the court must weigh the competing interests of the citizen and the public interest. Commonly the issue arises with respect to confidential government papers such as criminal intelligence reports, policy documents at a high level and cabinet documents. In considering the issue, Gibbs ACJ provided the following guidance in Sankey v Whitlam (1978) 142 CLR 1: The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest … I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be with held from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. … While an affidavit sworn by a Minister or departmental head is not conclusive, it appears to me to be still highly desirable that the person who swears the affidavit should himself have seen the documents in question. … Finally, the power of the court to inspect the document privately is clear, and once a court has decided, not withstanding the opposition

Ch 12: Discovery 

 131

of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production.

Without Prejudice Communications

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[12.260]  Communications made in a genuine attempt to settle a

dispute are generally covered by “without prejudice privilege”. It is usual to preface such communications with the words “without prejudice”. The law provides for this particular privilege to foster negotiations that may settle litigation: Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285. While prefacing negotiations with the words “without prejudice” is usual, it is not always necessary for the document or discussion to be covered by the privilege; for example, a letter in a series of “without prejudice” communications. The Queensland Court of Appeal has prevented disclosure of statements made by a party in mediations to induce settlement as “without prejudice communications” which cannot be used even if they are contrary to another related proceeding involving the same factual matrix: Mercantile Mutual Custodians Pty Ltd v Village/​Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276. While protection is given to “without prejudice negotiations”, they may still be admissible when they evidence a fraud on the court, for example in JA McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121. Section 131 of the Uniform Evidence Law (applicable in the Federal Court, the ACT, NSW, NT, Tas and Vic) addresses the “Exclusion of evidence of settlement negotiations”.

Statutory Privilege [12.270]  Additional forms of privilege are created by statutory

provisions (eg, a privilege against answering questions concerning adultery), and vary throughout the jurisdictions.

132 

 Civil Procedure

Oppression [12.280] Discovery may be oppressive if it imposes so great a

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

burden on that party that it is not reasonably required for the proper conduct of the litigation: Derham v AMEV Life Insurance Co Ltd (1978) 20 ACTR 23.

13 Settlement Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[13.10] The traditional adversarial approach to litigation has

been undergoing significant renovation in modern times, in Australia. Alternative dispute resolution (ADR) has been a very important feature of this change, and the vast majority of civil cases commenced will settle before trial, either following the parties engagement in an ADR process, or following the exchange of settlement offers between the parties. Thus, an understanding of ADR processes (see Chapter 18 Alternative Dispute Resolution) and the impact of making an offer to settle, and of the methods of settling cases is of central importance. In many cases, settlement can also be seen as an opportunity to obtain a better solution than that available by court order as a timely settlement may preserve an ongoing business or family arrangement. Indeed, the provisions allowing for formal offers to settle or compromise are in place to induce settlements. In general terms, the rules impose significant costs penalties on a party that rejects an offer and then does no better than that offer on judgment. Settlement offers, therefore, need to be carefully considered by lawyers and their clients, balancing the likelihood of a particular outcome (and possible costs penalties) against the content of a particular offer. Informal settlement offers may also be made outside the rules of court. The procedure for such offers, developed at common law and referred to as Calderbank letters/​offers, may carry similar costs consequences for a party that ill-​advisedly rejects an offer. 133

134 

 Civil Procedure

Payment into Court [13.20] Until recent times, the court rules only provided for

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

one method of making a formal offer to settle a case: this was the process of the defendant paying into court a sum of money which the plaintiff could accept or reject. If the plaintiff did not accept the sum paid in and judgment was for the same amount or less, the defendant would usually obtain an order against the plaintiff for costs incurred from the date of the payment into court. The Registrar of the Court would hold the sum in an account pending the outcome of the litigation. This method of settlement is retained in the NT and Tas. This procedure had a number of significant difficulties, most importantly: • many defendants were reluctant to have large sums held in a Registrar’s account, unable to be used; • many cases involves disputes that were not limited to a simple money payment; and • the rules did not provide a formal procedure for the plaintiff to make an offer to the defendant.

Calderbank Offers [13.30] Some of the difficulties associated with payment into

court as a settlement mechanism were overcome by the use of the Calderbank offer, named after the English case that gave the tactic prominence. A Calderbank offer is simply an offer to settle that is made in a letter expressed to be “without prejudice, save as to costs”. This means that the party intends to rely upon the letter in any costs argument if the result of the litigation is as favourable, or more favourable to the party than the Calderbank offer: Calderbank v Calderbank [1975] 3 WLR 586. That is, the offer in the letter may not be used in evidence during the trial, but may be tendered on the issue of costs following trial.

Ch 13: Settlement 

 135

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

However, a successful plaintiff could not improve his or her costs position by a Calderbank offer, unless the plaintiff was in a jurisdiction where costs did not usually follow the event (such as the Family Court) as a successful plaintiff usually obtains a costs order in any event. Calderbank offers have become less common since the rules have been altered to allow for written offers to settle which have the same, and sometimes greater, effect. There remains some dispute as to whether a Calderbank letter may be relied upon in jurisdictions where there is a specific procedure available under the rules: Biernacki v Klenka (1988) 80 ACTR 1. In all jurisdictions except the NT, there is no limitation on the types of cases an offer of compromise may be served in, suggesting that Calderbank offers will have lesser utility in those jurisdictions. In the NT, there may be greater scope for reliance on Calderbank offers, as offers of compromise are permitted in actions for damages only. Rejection of a Calderbank offer in circumstances where a party is ultimately unsuccessful at trial is only one factor to be considered in making an order for costs. The totality of the surrounding circumstances at the time of rejection need to be considered: Grice v Queensland [2005] QCA 298.

Formal Offers to Settle [13.40]  All jurisdictions now have provisions for formal offers to

settle. The rules provide for the parties to make a formal offer, in writing. The offer must remain open for the minimum period set out in the rules. If a party wishes to withdraw an offer before it expires, an application must be made to the court (except in SA where the offer does not need to be open for any defined period and can be withdrawn at any point prior to acceptance, but must be made 21 days prior to commencement of trial). An offer is not capable of acceptance after judgment, and if made in accordance with rules, must be considered by the court in relation to costs.

136 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

If the plaintiff is as or more successful than an offer made by the plaintiff, the defendant will ordinarily be ordered to pay all of the plaintiff ’s costs on a solicitor and own client basis: see Chapter 15 Costs. If the defendant is as or more successful than an offer, the defendant usually obtains an order that the plaintiff pay the defendant’s party and party costs from the date of the offer. It is important to remember that the interest which may be allowed on a judgment must be considered in determining whether the judgment is equal to or greater than the offer: Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55. Unfortunately, too few parties involved in litigation take the opportunity to make a reasonable offer of compromise early in the process, despite the pressure that this may bring to the opponent later in the litigation.

Settlement [13.50]  Where settlement results from the acceptance of a for-

mal offer under the applicable rules, the settlement is treated as an agreement between the parties to settle and brings the case to an end with respect to the issues covered by the settlement, and the claim is considered satisfied and incapable of resurrection in a subsequent proceeding. Where settlement results from the informal agreement of the parties, there are a number of ways of formalising the settlement agreement. The settlement can be formalised by a consent order or judgment of the court, however in many cases a defendant will wish to avoid a formal judgment. The various methods commonly used to formalise a settlement (other than by court order) are described in Green v Rozen [1955] 1 WLR 741 by Slade J: The first method which I have found to be very useful where the terms of compromise consist of an agreement by the defendant to pay a specified sum of money by specified instalments on specified dates is to give judgment for the total amount agreed to be paid coupled with a stay of execution so long as the instalments are paid in accordance with the terms agreed …

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Ch 13: Settlement 

 137

The second method, which is no doubt more appropriate when the terms of settlement are not so straightforward as the mere payment of an agreed sum of money by specified instalments, is to secure an order of the court made by consent that the plaintiff and the defendant shall do the things which they have respectively engaged themselves to do by the terms of settlement. In such a case the order would take this form. There would be the title and the preamble, and then the order would recite, the terms having been agreed between the parties: “It is ordered that (a) the defendant do,” etc., “the plaintiff do.” etc., making each of the agreed terms an order of the court that it shall be carried out. The third method I have known is what has become known as the Tomlin form of order … –​this is the Tomlin form of order –​“And the plaintiff and defendant having agreed to the terms set forth in the schedule hereto, it is ordered that all further proceedings in this action be stayed” now these are the important words –​“except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.” … The fourth method I have come across is an order of the court made by consent staying all further proceedings in the action upon the terms agreed and endorsed on counsels’ briefs. In that method there is an order of the court staying all further proceedings, but in the fifth method, that adopted in the present case, there is no order of the court at all, the court merely being told by counsel that the case has been settled upon the terms endorsed on counsels’ briefs. That method I have known to be supplemented by a request for leave to withdraw the record, and I think in the case of a trial by jury a request for the withdrawal of a juror, although I believe that in the latter case the action can be set down and re-​heard if the terms are not compiled with. It will perhaps emphasize which is the easiest method of disposing of an action to consider what steps can be taken in each case to enforce the terms if they are not compiled with. The first one seems to be simplicity itself. The court has already given judgment and the stay of execution lasts only so long as the agreed terms are compiled with. If there is a failure to comply with them the party who suffers merely has to proceed to levy execution. In the second case, the court has made an order in the terms I have indicated, that the plaintiff do so-​and-​so, the defendant do so-​and-​so, and if the plaintiff or the defendant, as the case may be, fails to carry out the court’s order it is only necessary for application to be made to the court and the court will enforce it, what each party is to do or refrain from doing being part of the order itself. The third case is the Tomlin form of order with which I have already dealt, and parties who choose that form of order may, if the terms

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

138 

 Civil Procedure

are not complied with, find contentions raised against the enforcement of it, the nature of which I have already indicated. In the fourth case the court, at the request of the parties, has made an absolute and unqualified order for a stay of all further proceedings. I say “absolute and unqualified” in contradistinction to the form of order where it is qualified by the words “save for the purpose of carrying the terms into effect”. The fifth method, which is the only one I propose to decide, is the one adopted in the present case. The court has made no order of any kind whatsoever, and having considered such authorities as I have been able to find, I arrive at the conclusion that in those circumstances the court has no further jurisdiction in respect of the original cause of action, because it has been superseded by the new agreement between the parties to the action, and if the terms of the new agreement are not compiled with the injured party must seek his remedy upon the new agreement…

Infants and Those under a Disability [13.60] Settlements in cases involving an infant or a person

under a disability must be sanctioned by the court (or, in Qld, the Public Trustee may also perform this role). This involves making an application to the court setting out the terms of the settlement and providing sufficient materials to allow the court to make a determination as to whether the settlement is a reasonable one in the circumstances. The process is discussed in detail by Lee J in Fowler v Gray [1982] Qd R 333.

Enforcement of a Settlement [13.70] When an action is compromised by agreement, the

agreement is a contract. In simpler cases, a party may seek to enforce the agreement summarily (by a summons seeking a judgment in the original proceedings). However, in more complex cases the party seeking to enforce the agreement may have to commence fresh proceedings relying upon the agreement.

14 Trial and Judgment Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.10]  In this chapter, we examine what was traditionally the

natural goal of any litigated dispute, the trial. The rules regulate requests for trial dates, adjournments, and other procedural matters. The trial is the phase of the process where all of the evidence of the parties is presented to a court for a determination of the facts, followed by an application of the law, resulting in a judgment. Trials are therefore appropriate whenever there is a dispute of fact to be determined. If there are no disputes of fact, the matter may be determined summarily, after argument by the parties as to the law (following an application for summary judgment, for example). The manner and type of evidence presented at trial is also governed by application of the common law and the Evidence Act that is applicable in the relevant jurisdiction. This topic, while of vital importance to the operation of the trial itself, is more appropriately dealt with in the Evidence texts. A brief overview of the law of evidence may be obtained by reading R Wilson, Nutshell: Evidence (4th ed, Lawbook Co., Sydney, 2013). At the conclusion of a trial, the court delivers a “judgment”, either directly or at the request of a party. A judgment is the final, binding decision of a court in a proceeding. Judgments are not lightly set aside. Unless one of the limited grounds for setting aside a judgment can be made out (eg, fraud), a party must either accept the judgment or appeal the decision to a higher court. Traditionally, a judge sat with a jury to hear trials, giving the jury directions as to the law and allowing the jury to determine 139

140 

 Civil Procedure

the facts and reach a verdict. For this reason, trial is traditionally one continuous oral hearing of the evidence and argument. In the civil context, trials are now usually heard by a judge alone. Modern case management principles may also impact upon the way in which a trial is heard, such as requiring evidence or argument to be placed before the court in a written format: see Chapter 2 Case Management.

Preparing for Trial Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.20] Once a party has completed all of the interlocutory

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

Ch 14: Trial and Judgment 

 141

produce the documents may be necessary. If answers to interrogatories are to be tendered, the particular interrogatory and answer should be retyped on a separate sheet for tendering. In cases where the evidence is to be by affidavit, the affidavits must be prepared, filed and served on the other parties before trial.

Mode of Trial Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.30]  There are various methods that may be adopted for the

trial of an action. Civil trials are now commonly heard by a judge alone, however either party may still elect to have many cases heard by a judge and jury. In some cases, other options such as having the matter being heard by a referee, or splitting the trial to enable determination of some issues after a first hearing, are appropriate.

Jury Trials [14.40]  While a right to trial by jury is trite law in the criminal

courts, a similar position does not apply to civil litigation. Trials are conducted by judge alone, unless a party requests a trial by jury. Despite a party’s desire to have a jury trial, the court retains the discretion to order trial by judge alone. In the Federal Court, ACT, and Tas, trial by jury has essentially been abandoned for civil matters. In other States and the NT, the rules are complex and depend upon the nature of the particular case; a trial may be permitted for a common law claim, but not for equitable relief. There is no option for a jury trial in the Family Court. In jurisdictions where a party is still able to ask for a jury trial (subject to the court’s power to order a trial by judge alone), the party must elect this mode of trial in the originating process ((Qld), r 472; (Vic), r 47.02). Alternatively, a party seeking a jury trial may make an application to the court asking for an order for a jury trial (except in the ACT). While there are a number of cases where parties have applied for trial by jury, none appear

142 

 Civil Procedure

to have been successful. It appears that trial by jury will rarely, if ever, be granted as a matter of judicial discretion: see Snell v Sanders (1994) 122 ALR 520. In all jurisdictions, a court has the power to dispense with a jury, in various circumstances (such as where the assessment of damages will be complex, or for reasons of fairness), even if a party has elected to have a jury trial.

Referees and Arbitrators

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.50]  The court rules in the Federal, State and Territory courts

all provide that the court may appoint referees or arbiters to report to the court on issues arising in the proceeding. In the ACT, NT, SA, Vic and WA, the referee may also be asked to determine part or all of the proceeding (it is not entirely clear whether (Qld), r 501 permits a referee to make a final determination). It is common for a referee to be appointed for the taking of accounts in partnership and trust disputes, where the dispute will involve a prolonged examination of documents or accounts. Alternatively, a referee or arbitrator may be more appropriate in cases involving technical or scientific issues. Generally, a referee will simply report on the findings of fact that the referee has made, whereas an arbitrator will make a determination of the issues of the parties. While the courts have traditionally been reluctant to order the appointment of referees without the consent of the parties (other than in cases for accounts), there is increasing pressure on the limited resources of the courts to deal with complex factual disputes, such as those that arise in building cases and partnership disputes.

Splitting Trials [14.60]  In some cases, it is also convenient for there to be a trial

in relation to a single, or limited number, of issues. Sometimes a preliminary point may be decided “on the papers”, and without an oral hearing in order to conserve resources and save costs. Generally, however, it is an unusual course in the courts as it is thought to rarely provide any real savings: Evans Deakin Industries Ltd v Commonwealth [1983] Qd R 40. However, there

Ch 14: Trial and Judgment 

 143

are examples of cases where the whole of an action may be determined by a finding on a particular issue. For example in O’Neill v Mann (1994) 49 FCR 370, a defence of absolute privilege in a defamation action was tried as a preliminary issue: the defendant was successful and this disposed of the whole of the matter.

Speedy Trials

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.70]  A court has the power to order that a matter be tried

speedily. This means that the matter moves to the top of the list of matters awaiting a trial date. Orders for speedy trial can provide a significant tactical advantage to the better prepared or funded litigant. Similarly, such orders may overcome the prejudice inherent in the delays involved in obtaining a trial date in most courts. In jurisdictions where there are comprehensive case management schemes, the need for a speedy trial may also impact upon other interlocutory processes: see generally Chapter 2 Case Management. As a speedy trial order involves all litigants on the trial list (as other cases may lose their priority) as well as the parties to a particular matter, it may not be ordered simply on the consent of the parties. The court must be satisfied that some cogent reason exists for affording the matter priority over other litigants awaiting trial, for example age or infirmity of a party or important witness: Palmos v Georgeson [1961] Qd R 186. However, an order for speedy trial will not be a proper basis for denying a party the right to a jury trial if a party has already elected to have the case heard by a jury, in circumstances where that election is permissible: Kelly v Kelly [1990] 2 Qd R 147.

Venues, Trial Dates and Adjournments Venue [14.80] The rules govern venue, usually the place chosen by

the plaintiff by endorsement of the place of trial on the writ

144 

 Civil Procedure

or statement of claim: Federal Court Rules 2011 (Cth), r 2.02; (NSW), r 29.3; (NT), r 5.08; (Qld), r 35; (SA), r 122; (Tas), r 554; (Vic), r 5.08; (WA), O 32, r 1. It is open to either party to apply for a change of venue for the trial. In courts with a large geographical jurisdiction, such as the Family Court, venue will often be an issue to be determined by considering the balance of convenience: Ryan v Harrison [1957] VR 210. Relevant considerations include:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• the location of the witnesses and the capacity of the parties to attend a trial that may be held some distance from where they reside; • the delay, if any, in obtaining a date for hearing in any particular location; and, • in jury cases, the need to ensure a fair trial of a matter.

Obtaining a Trial Date [14.90]  Once a case is ready for trial (when all of the interloc-

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

Ch 14: Trial and Judgment 

 145

list” or “docket” system, or through “directions hearings”: see Chapter 2 Case Management.

Adjournments

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[14.100]  A court has the power to adjourn a trial either before

the commencement of the trial or during the course of the hearing. The power to adjourn is provided for in the court rules, and also considered to be an inherent power of the court: Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32. Adjournment of a trial before a judge alone will often occur if all of the time available to hear the matter has been used, and the court has other commitments. In determining whether to allow an adjournment at the request of a party, the court must determine where the balance of justice lies: Myers v Myers [1969] WAR 19. A relevant consideration in an adjournment application is whether an order for the payment of the costs thrown away by the adjournment is sufficient compensation. However, the “salving balm” of a costs order is not necessarily sufficient in all cases. In Sali v SPC Ltd (1993) 67 ALJR 841, the competing claims of litigants for the time of a busy court was held to be a relevant consideration. For many litigants, the stress of court proceedings will also be a relevant consideration: Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379.

Course of Trial [14.110] The plaintiff has the right to begin, provided that

the plaintiff bears the onus of proof on at least one issue. However, this can become a difficult issue. In Portelli v Port Waratah Stevedoring Co Pty Ltd [1959] VR 195, the defendant admitted its negligence and alleged contributory negligence on the part of the plaintiff. Lowe J concluded that the onus of proof on damages and on the apportionment of liability remained with the plaintiff, and that therefore the plaintiff should commence.

146 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Trials commence with the plaintiff ’s counsel (where the plaintiff commences) “opening” the plaintiff ’s case. An opening is a speech made by counsel outlining the evidence that is intended to be called to prove the party’s case. Openings are not the occasion to attempt to persuade the court that the party should succeed, but rather to explain the case that is to be presented. Thus, inflammatory language, irrelevant facts (such as whether a defendant is insured) and argument should not be included. After the opening, the party leads their evidence, by calling their witnesses and tendering any documents or exhibits. When a party calls a witness they are entitled to have the witness give evidence in chief by asking non-​leading questions (those that do not suggest the answer). Thereafter, the defendant is able to cross-​examine the witness, and may ask leading questions. However, if a witness is called solely for the purpose of producing a document, or called in error, there is no right to cross-​ examine the witness. Following cross-​examination, the party calling the witness may then re-​examine. Re-​examination is limited to issues raised in the cross-​examination and must be by non-​leading questions. When all of a party’s evidence has been produced, they “close” their case. Once a party’s case is closed they may not call any more witnesses or produce any further evidence without seeking the court’s leave to reopen their case. While the reported cases adopt a very narrow test as to the right to reopen a case (eg, Hanlon v Wadlow Ltd [1961] SASR 94), in many jurisdictions a more liberal view is adopted in practice, particularly if the need to reopen arises as a result of fresh evidence or an oversight. Following the closing of the first party’s case, the next party is called upon to decide whether they wish to call evidence. If a party wishes to call evidence they then open their case and call their evidence. This continues until all parties have presented their cases. Once all of the evidence has been called, each party has a right of address, to sum up their case and attempt to persuade

Ch 14: Trial and Judgment 

 147

the court to find in their favour. The order of addresses is determined by two factors: whether the parties called evidence, and where they appear on the record. If the defendant does not call evidence, the plaintiff addresses first. If the defendant calls evidence, the defendant addresses first. There is generally thought to be some forensic advantage in addressing last, particularly before a jury.

Verdict and Judgment Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

dict may be either a general verdict or a special verdict. In a general verdict, the jury simply finds for or against the plaintiff and assesses the amount of damages. In giving a special verdict, the jury makes findings of fact on specific issues. Once a jury gives its verdict it is normally discharged. It is then open to the parties to apply for judgment based upon the verdict of the jury.

Judgment [14.130]  Judgment, in its narrow sense, refers to the orders of

the court after hearing a matter. In a jury trial, judgment will be ordered in accordance with the verdict of the jury. The term is also used in a more general sense to refer to the findings and fact, reasons and orders of a trial judge where the trial is before a judge alone. Judgment is said to be “pronounced” when it is given and takes effect at that time. However, a judgment may only be enforced after it is entered on the record of the court, sometimes referred to as taking out judgment (obtaining a certified copy of the judgment from the registrar). Once judgment is entered, the court is “functus officio”  –​ its official function is finished and therefore it no longer has the power to alter the judgment except in exceptional

148 

 Civil Procedure

circumstances. However, minor errors may be corrected if they fall within the “slip rule”. A judgment may be corrected under the slip rule if the error is obvious, or the terms of the judgment do not carry out the judge’s intention at the time of giving judgment: Arnett v Holloway [1960] VR 22.

“Interest on Judgment” [14.140]  Most jurisdictions provide for interest, in the nature of

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

damages, to be awarded on the amount for which judgment is given. Additionally, once entered, a successful party is entitled to interest on the judgment until it is satisfied.

15 Costs Nature of Costs

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[15.10]  Legal costs have a far reaching influence on civil litiga-

tion. This is for two reasons. First, legal costs are high due to the large amounts of work generally involved in litigation. Secondly, in civil litigation the general rule is that costs follow the event –​ that is, the loser pays the winner’s costs. For these reasons, the question of costs must be considered from the outset in any litigation, particularly since the costs payable by an unsuccessful party will rarely cover the full extent of the successful party’s actual costs. Many cases involve too little damage to warrant the costs that would be incurred in pursuing the action. Other cases are so dubious that the costs of pursuing the action, together with the risk of paying the opponent’s costs, would result in a poor investment of the party’s remaining resources from a business perspective. The amount of legal fees or costs can be disputed by a process known as taxation of costs. This process involves a hearing before an officer of the court, usually a “taxing master”, who will consider all of the charges and allow, refuse, or reduce the amount of each charge. It is important to recognise the fundamental distinction between costs issues relating to an order for one party to pay another’s costs, and the issues that may arise concerning costs payable by a party to their own solicitor. Costs payable by an opponent are paid to “indemnify” the opponent against the expenses they will have incurred in the proceedings and will be taxed on the court scale. 149

150 

 Civil Procedure

However, costs payable by a party to their own solicitor are pursuant to the contract whereby the solicitor has been retained by the client. This contract may be on a quantum meruit basis or a litigant may enter into a costs agreement setting out how the work will be charged. In most medium to large firms, clients are charged using a method known as “time costing”. This involves keeping a record of the total amount of time spent on the client’s matter (usually using “units” representing one tenth of an hour) and charging that time at an hourly rate.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Types of Costs [15.20]  Legal costs may be assessed upon a number of different

bases, depending upon the order of the court or the relationship of the parties. The most common forms of costs are “party and party” costs and “solicitor and client” costs. As party and party costs are awarded as a qualified indemnity, they include only costs that are proper and necessary for the attainment of justice or to defend one’s rights. Solicitor and client costs, however, include all costs necessarily, properly and reasonably incurred, in addition to those incurred on the instructions of the client. For most litigants, this means that the solicitor and own client costs that they incur will be greater than party and party costs. A convenient analogy is to think of the Medicare process, where one sees a medical practitioner that charges above the rebate level, leaving a “gap” in payment to be met by the patient. The average “gap” is around 30% in an average personal injuries action, for example. If another party is ordered to pay costs, they are ordered to pay costs to effectuate a qualified indemnity. That is, the amount of costs is not meant to compensate a party for all expenses, no matter how unnecessary, but rather to provide an indemnity for the costs reasonably incurred. Costs to be paid by one party to another may be ordered on varying levels of generosity as follows: • party and party basis; • common fund basis;

Ch 15: Costs 

 151

• trustee basis; • solicitor and client basis; and • indemnity basis.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Only costs on an indemnity basis will be the same amount as the solicitor and own client costs. It is important to understand that “solicitor and client costs”, if to be paid by another party, is an allowance of party and party costs on a more generous basis. Whereas, the “solicitor and own client costs” are those that must be paid by a client to their own solicitor in accordance with the retainer agreement. As stated by Buckley LJ, “the taxation on a solicitor-​client basis is substantially a party-​party taxation on a more generous scale … [however] … in the case of a solicitor-​[own-​]client bill, this is an ascertainment and allowance of the charges properly payable by a client to his solicitor”: Giles v Randall [1915] 1 KB 290. Unfortunately, the terms used in many cases and notes often do not clearly distinguish between the solicitor and own client costs and the solicitor-​client form of costs order (as can be seen from the quote from Buckley LJ above).

The Incidence of Costs [15.30] At common law there was no power to order one

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

152 

 Civil Procedure

The general principles governing an award of costs are as follows (Re Elgindata Ltd (No 2) [1992] 1 WLR 1207): (a) costs are in the discretion of the court; (b) costs should usually follow the event; (c) the general rule will not cease to apply simply because the successful party has raised issues upon which they have failed, however, the successful party may be deprived of part of the costs of the action; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Security for Costs [15.40] A court may order a plaintiff (or a counter-​ claiming

defendant) to provide security for the payment of defendant’s

Ch 15: Costs 

 153

costs should the plaintiff lose the action. The court’s jurisdiction comes from a number of sources: • it is well established that a court has an inherent jurisdiction to order a party to provide security for costs; • in many jurisdictions there is power to award security or costs under the rules of court; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• under the Corporations Act 2001 (Cth), s 1335, a court also has statutory jurisdiction to make such an order against a corporation. If an order for security for costs is made, the action is stayed until the security is provided as ordered. Only a party defending a claim will be able to seek security for costs. It would be oppressive to make a party who is defending their rights to provide security for the plaintiff ’s costs before allowing the party to defend. Thus, a defendant will not be required to provide security for costs to the plaintiff, unless the defendant is bringing a counter-​claim that goes beyond the terms of the plaintiff ’s claim. When determining whether to order that a party provide security for the costs of the action, a court will consider: • the strength of the plaintiff ’s case; • the nature of the case; • whether the case is a sham; and • whether the application is being used oppressively. In a number of situations there is a prima facie presumption in favour of the defendant obtaining security: • where the plaintiff is a foreigner, and is resident abroad, particularly if the plaintiff has no assets in the jurisdiction; • where the plaintiff is a corporation with no assets or apparent ability to meet a costs order; • where the plaintiff is a “nominal plaintiff ” bringing an action substantially for the benefit of another; and • where the plaintiff wrongly states his or her address, or fails to state an address on the originating proceedings.

154 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Importantly, the poverty of a personal plaintiff with a bona fide claim will rarely be sufficient grounds for ordering security for costs: Coyle v Cassimatis [1994] 2 Qd R 262. Similarly, where directors of a small company provide director’s guarantees for the payment of any costs ordered against a company plaintiff, the court will often decline to order that further security be provided. In determining whether the security is being used oppressively, a court must consider whether the matters that are the subject of the action were the cause of the plaintiff ’s lack of funds, or whether the plaintiff has made a substantial payment into court. The amount of security will be limited to party and party costs that have been and are likely to be incurred. Often this amount will be discounted to account for the circumstances of the case (to avoid oppression) or for the possibility that the matter may settle before trial. As the court must determine the appropriate amount of security to be ordered, it is important for an applicant for security for costs to provide evidence not only of the circumstances justifying the order, but also an estimate of the amount of costs likely to be involved in the case.

Common Costs Orders [15.50]  There are a number of common forms of costs orders

used by the courts. Orders as to costs are presumed to be on a party and party basis, unless they specifically state otherwise.

Multiple Parties [15.60]  Where there are multiple parties, one of whom is unlikely

to be able to meet a costs order, the form of the order may be of significance. For example, if a plaintiff sues two defendants but succeeds against only one, the successful defendant is entitled to his or her costs. The plaintiff is entitled to have the unsuccessful defendant pay the plaintiff ’s costs, including the costs

Ch 15: Costs 

 155

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Interim Applications and Partial Orders as to Costs [15.70]  Where a party obtains an order for their “costs in any

event” they will receive those costs regardless of the outcome of the action: B Cairns, Australian Civil Procedure (9th ed, Lawbook Co., Sydney, 2011) p 658. Where a court orders that the costs of an application are to be “costs in the cause”, the costs will follow the costs in the action: B Cairns, Australian Civil Procedure (11th ed, Lawbook Co., Sydney, 2016) at [17.240]. Sometimes, the costs of one party to the application will be ordered to be that party’s “costs in the cause” which will result in the party only obtaining the costs of the application if they obtain an order for the payment of their costs of the action. If a court formally orders that there be “no order as to costs” each party bears their own costs: Re Hodgkinson [1895] 2 Ch 190. However, if an order is simply silent as to costs, the successful party on the application is entitled to costs in the cause. Other common forms of order include: • costs of the day; • costs thrown away or costs wasted; • costs of the application; and • costs of the appeal.

156 

 Civil Procedure

Taxation of Costs [15.80]  The process of “taxation of costs” is provided for under

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

the relevant court rules, in concert with professional conduct legislation that also governs costs disclosure obligations to clients: Legal Profession Act 2006 (ACT); Legal Profession Uniform Law Application Act 2014 (NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA). The process of taxing costs may be employed to settle disputes as to the amount of costs to be paid pursuant to a court order, or as between a solicitor and their clients. It is a process whereby the party claiming costs prepares a “bill of costs” in “taxable form”; that is, an itemised schedule of the costs and outlays, usually in six columns providing for each item an: • item number; • date; • description; • professional fee; • disbursement; and • a final column for the taxing master to enter amounts refused or “taxed off ”. Once the bill of costs is prepared, it is filed and served. The parties then attend upon a taxing master who considers each item, and any argument as to whether each item ought to be allowed. The costs of taxing a bill of costs are to be met by the party liable under the order for costs. In some jurisdictions, it is possible for the party liable for costs to serve an offer to settle costs on the party entitled to same: (ACT), r 1811; (NT), r 63.34; (Qld), r 733; (SA), r 187; (Tas), r 850; (Vic), r 63.36. In these jurisdictions, there are also costs consequences for a party that declines to accept the offer of costs settlement. An offer to settle

Ch 15: Costs 

 157

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

costs should be considered strongly, considering the enormous time and expense that is involved in taxation of costs. The amounts to be allowed for particular items of work are generally set out in the scale of fees for the particular court. The scales of fees are in various forms, but usually provide for costs for each item of work such as letters, conferences, perusing documents, drawing documents, etc. “Drawing” a document refers to the mental skill in preparation of the document, whereas “engrossment” refers to the physical production of the document, such as typing it out. “Perusal” of a document means considering its contents. Most rules provide for a charge per “folio” of a document. A “folio” was originally 72 words or figures, although under some more modern rules is now defined as 100 words or figures. Generally solicitors no longer prepare their own bills of costs for taxation purposes, but send the file to a “cost assessor” who prepares the bill in taxable form from the file.

16 Appeals Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[16.10] There are no common law rights of appeal: South

Australian Land Mortgage Agency Co v The King (1922) 30 CLR 523. Thus, the statutory basis for an appeal must be located and carefully construed. Generally, appeals in Australian Supreme and Federal Courts lie to a Full Court or Court of Appeal (three judges), and from there to the High Court of Australia. Appeal rights may be categorised into three types: Strict, Re-​hearing and hearing de novo. Strict appeals will be limited to error of law or excess of jurisdiction as at the date of the original decision: Duralla Pty Ltd v Plant (1984) 2 FCR 342. Strict appeals operate in a manner similar to judicial review proceedings. New evidence cannot be taken into account: Petreski v Cargill (1987) 18 FCR 68. Appeals to the Full Court of the Federal Court and to the High Court are appeals in the strict sense. Appeals by way of re-​hearing require the appellate court to form its own independent view of the evidence from the transcript. In most State and Territory jurisdictions, appeals lie by way of re-​hearing. In an appeal by way of re-​hearing, the law as it stands at the date of the re-​hearing must be applied. As re-​hearings are the most common form of appeals they are dealt with in depth below. Finally, appeals may be by way of hearing de novo. Such a process involves the appellate court hearing the whole of the matter afresh. All of the evidence may be led again, and the appellate court forms its own views of the witnesses and evidence. Applications to the Administrative Appeals Tribunal (AAT) 158

Ch 16: Appeals 

 159

from administrative decisions, and appeals to the Planning and Environment Courts from the decisions of local authorities, are both hearings de novo in that the court or tribunal stands in the shoes of the original decision maker and hears the evidence afresh, forming its own views.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Appeal courts may generally make such orders as the trial court could have made, whether the orders depart from the trial decision in whole or in part. As most cases are heard by a judge without a jury, and most appeals are heard by way of a re-​hearing with power to receive further evidence, it is rare for a new trial to be ordered.

Lodging an Appeal [16.20]  An appeal is commenced simply by lodging a notice of

appeal setting out the grounds upon which the appellant relies. If the respondent wishes to contest the original judgment they may lodge a cross-​appeal. Importantly, it is the order that is appealed from, and not the reasons that are given, although the reasons are usually relied upon to show the trial judge’s error: Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45. If the respondent supports the judgment given, but not the reasons, no cross-​appeal is required in the State and Territory courts. In the Federal Court, if the respondent does not wish to have the trial judge’s orders altered, the respondent must lodge a “Notice of Contention” setting out its position: Federal Court Rules 2011 (Cth), r 36.24. The appellant is generally responsible for preparation of the appeal book. The appeal book consists of copies of all of the relevant documents, exhibits and transcript of the trial. The contents of the appeal book are normally settled by a Registrar of the court in consultation with the parties. The court requires copies for the registry and each judge. In addition, copies must be provided to the other parties. Often, the preparation of the appeal books is an expensive undertaking.

160 

 Civil Procedure

The parties are also generally required to file and exchange an outline of argument and list of authorities. Due to the pressure of work on modern appeal courts, the outline of argument will generally be very detailed.

Stay of Decisions

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[16.30]  An appeal rarely operates as a stay of a judgment or deci-

sion of the court below. In order to obtain a stay the appellant must apply to the trial judge or appeal court (as provided by the statute governing the appeal) and demonstrate “special circumstances”. Special circumstances, according to Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, may be demonstrated in cases: where it is necessary to prevent the appeal, if successful, from being nugatory … Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed

Leave to Appeal [16.40]  Appellants to the High Court must obtain “special leave”

to appeal: Federal Court of Australia Act 1976 (Cth), s 33 (from Full Federal Court Judgments); ss 35A, 35AA of the Judiciary Act 1903 (Cth) (State Supreme Courts and the Supreme Court of a Territory). In Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194, the High Court upheld the constitutional validity of the special leave requirement. Relevant considerations in obtaining special leave include: • whether the proceedings involve a matter of public importance;

Ch 16: Appeals 

 161

• whether it is desirable to settle differences of opinion among other courts; and • whether the interests of justice require the consideration of the High Court.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Special leave applications are provided for in the rules. Parties are generally limited to 20 minutes argument each, with a 5 minute right of reply for the applicant: High Court Rules 2004 (Cth), r 41.11. Similarly, many statutes provide that leave is required to appeal from judgments involving small sums, or interlocutory rather than final orders. A final order, as opposed to an interlocutory order, finally determines the rights and liabilities of the litigants: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564. However, it is “never enough to ask simply does the order finally determine the actual application or matter out of which it arises; becomes subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation”: Hall v Nominal Defendant (1966) 117 CLR 423. The court must consider whether the order finally determines the rights and liabilities of the parties as a matter of law, not as a matter of practicality: Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246. Thus, an application to set aside a default judgment does not result in a final order, just as an application to extend a limitation period does not result in a final order.

Nature of a Re-​hearing Exercise of Discretion [16.50]  In an appeal against the exercise of judicial discretion,

it is not enough to persuade the appellate court that they may have taken a different view of the case. Orders as to practice and procedure, costs and assessment of damages are generally matters of discretion. In appeals against the exercise of a discretion “there is a strong presumption in favour of the correctness

162 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Where the discretion involves matters of practice and procedure, the appellate court will generally exercise particular caution:  Contender 1 Ltd v Lep International Pty Ltd (1988) 63 ALJR 26.

Findings of Fact [16.60]  Appeals from findings of fact must be divided into three

classes: cases involving the failure of a trial court to properly take all evidence into account; findings as to credibility; and inferences that may be drawn from facts found by the trial court. It is only in the rarest of cases that an appellate court will interfere with a trial judge’s findings on matters of credibility. An appellate court will not overturn a trial judge’s finding on credibility unless it is satisfied that the trial judge’s advantage of seeing and hearing the witness give evidence is not sufficient to explain the finding; that is, the evidence was “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 77 ALJR 989 at 995. This will be the case even where the trial

Ch 16: Appeals 

 163

judge has made no reference to the contrary evidence of a witness (as occurred in Abalos v Australian Postal Commission (1990) 171 CLR 167). An example of a case where a trial judge’s findings of credit have been overturned can be found in Voulis v Kozary and Ors (1976) 136 CLR 619.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Appellate courts are, however, entitled to reach their own conclusions as to the inferences to be drawn from the primary facts found by the trial judge, such as the correct apportionment of liability in a car accident case: Warren v Coombes (1979) 142 CLR 531. However, in cases involving findings of fact by a jury, either the directions to the jury must be challenged, or the verdict must be demonstrated to be one that no reasonable jury could reach on the evidence: Hocking v Bell (1945) 71 CLR 430.

Further Evidence [16.70]  Courts that hear appeals by way of re-​hearing generally

have power pursuant to the rules to admit further evidence. Evidence of matters occurring before trial will only be admitted on appeal if the court is satisfied that: • it is credible evidence; • it could not, with reasonable diligence, have been discovered in time for trial; and • that an opposite result would be likely: see Wollongong Corp v Cowan (1955) 93 CLR 435. While the grounds for receiving evidence of matters that have occurred since the trial are slightly more generous, it remains the exception rather than the rule.

Points Not Taken Below [16.80] The parties should put all of their points and argu-

ments to the primary court for consideration. “Where a point is not taken in the court below and evidence could have been

164 

 Civil Procedure

given there, which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards”: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. The High Court may hear issues of law not raised before the lower court, even though this seems opposite to the nature of a strict appeal. The High Court has authority to decide “whether the judgment below ought, or ought not, to have been given”: Crampton v The Queen (2000) 206 CLR 161 at 183.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Costs of Appeals [16.90] As with trial, costs generally follow the event (see

Chapter 13 Settlement for a brief discussion of the effect of a settlement offer on the costs of appeals). However, in most jurisdictions, a statutory “appeal costs scheme” exists: Federal Proceedings (Costs) Act 1981 (Cth); Suitors’ Fund Act 1951 (NSW); Appeal Costs Fund Act 1973 (Qld); Appeal Costs Fund Act 1968 (Tas); Appeal Costs Fund Act 1998 (Vic); Suitors’ Fund Act 1964 (WA). These schemes allow the court to grant a certificate to the party ordered to pay the costs of the appeal, entitling them to be indemnified out of the appeal costs fund. The fund is generated from a small fee attaching to the issue of initiating process. Provided the case of the unsuccessful party is fairly arguable, where the appeal is allowed on a question of law, a certificate will generally be granted by the court. Where the case is not fairly arguable, then a certificate will not be granted if the respondent played a role in leading the court into error: Lauchlan v Hartley [1980] Qd R 149.

17 Enforcement Introduction

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[17.10]  Without a process for the enforcement of court orders

and judgments, there would be little point in bringing proceedings. Enforcement of judgments is central to the practical success of an action. Enforcement proceedings allow the litigant to enlist the aid of the state to force compliance with the judgment or order, by physical force if necessary. This commonly takes the form of seizure of property by a Sheriff or Bailiff for sale or delivery to the party enforcing the judgment. While bankruptcy or liquidation are remedies available for the enforcement of money judgments, they are expensive and often yield no monies after the costs of the procedures and the trustee or receiver. These options are generally not effective for the enforcement of equitable orders, for example injunctions and specific performance. When utilised as an enforcement strategy, bankruptcy and/​or liquidation are usually only effective if the debt represents only a small part of the overall wealth of the person or company: the threat of the proceedings thereby resulting in payment. Alternatively, if there is no prospect of payment, such actions result in a cessation of trading, and perhaps some satisfaction to the creditor that they have at least imposed a penalty of some form. Bankruptcy and liquidation are not forms of execution in the strict sense, but separate actions in their own right. In some jurisdictions, an order for payment by instalments may be obtained by the judgment debtor. It is possible to obtain an order staying the effect of a judgment if matters of defence are discovered after the action, and in limited circumstances, 165

166 

 Civil Procedure

pending an appeal if this is necessary to preserve the subject matter of the action.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

It is crucial to ensure that any execution of a judgment is strictly in accordance with the relevant rules. The strict observance of the rules is required as execution of a judgment involves the most serious interference with another’s rights or property. A party who suffers wrongful execution will have a remedy against the sheriff and the executing party and possibly the solicitor: Watson v Murray & Co [1955] 2 QB 1. An order or warrant of execution becomes stale if not executed within the time provided by the rules, usually one year. A judgment may only be enforced by execution within the time provided in the rules, unless the leave of the court is obtained (it is only possible to extend the duration of an enforcement warrant in Qld if the application is made before the original warrant ends: (Qld), r 821). The limitations periods applicable to taking action on a judgment are also applicable (see Chapter 5 Limitation Periods), in addition to the time frames set forth in the relevant court rules relating to enforcement. As an aid to execution, a party with a judgment may obtain an order allowing the oral cross-​examination of the party against whom judgment has been entered. Such examinations are a routine part of debt collection. The extent of the oral examination is limited to questions relating to the ability of the party to satisfy the judgment, usually a debtor’s assets and ability or means to pay. In some jurisdictions, the debtor may simply be asked a series of pro-​forma questions informally in the foyer of the court, rather than pursuing a formal cross-​examination before a Judge (or more commonly, a Registrar). A more extreme aid to execution is the writ of capias respondendum which allows for the arrest of the defaulting party in aid of execution of the judgment. However, this is rarely used. It should also be noted that Mareva injunctions are also available as an aid to execution, even if judgment has been obtained: see Chapter 9 Interlocutory Applications.

Ch 17: Enforcement 

 167

Enforcing Money Judgments [17.20]  A judgment debt becomes due from pronouncement of

the judgment, but may not be enforced until the judgment is formally entered: Holtby v Hodgson (1889) 24 QBD 103. There are four methods of enforcing a money order: (a) a writ of fieri facias (fi. fa.) –​warrant of seizure and sale; (b) attachment of wages or debts due (garnishee); (c) a charging order; and Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(d) appointment of a receiver. The forms and procedures are set out in the relevant rules.

Writ of Fi. Fa. [17.30]  This writ enables the sheriff (or bailiff) to seize and sell

goods, chattels, and land of the debtor. A writ of fi. fa. may be issued from the registry without further application to the court. In some jurisdictions, this writ has been replaced by a warrant of seizure and sale; however it is to the same effect. The writ may be noted on the title of the land in the land title registry to enable the sale of the land. Seizure usually involves the physical seizure of the item by the sheriff. In some cases “walking possession” may be obtained: that is, notional possession is obtained by the sheriff once an indication of an intention to take possession is given: Watson v Murray & Co [1955] 2 QB 1. Once seized, the sheriff then sells the goods or land by auction. The goods or land must be sold at reasonable market value:  Anderson v Liddell (1968) 117 CLR 36. If the sheriff is unable to obtain a reasonable market value for the goods, a writ of venditioni exponas may be sought. This writ directs the sheriff to sell at the best price that the sheriff can obtain, even if it is undervalued. Before such a writ will be granted by the court, attempts must be made to sell at the market price. The sheriff may only sell sufficient of the debtor’s property as is necessary to satisfy the judgment debt and the costs of execution.

168 

 Civil Procedure

A judgment creditor may not defeat a bona fide purchaser for value without notice: Sale of Goods Acts. A sheriff may also have difficulty identifying which goods and chattels belong to the debtor, particularly in cases where the debtor has others living or working with the debtor who may claim ownership. Thus, the sheriff may sometimes be involved in an interpleader action to determine the true owner of goods.

Attachments of Debts and Wages

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[17.40]  The attachment of debts is a statutory remedy first intro-

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

Ch 17: Enforcement 

 169

Civil Procedure Act 2005, s 117; (NT), r 71.03; (Qld) Civil Proceedings Act 2011, s 97; (SA) Enforcement of Judgments Act 1991, s 6; (Vic), r 71.03; (WA) Civil Judgments Enforcement Act 2004, s 46. Similarly, wages are not a debt that is owed or accruing to an employee. Thus, wages are attachable only as they fall due. However, in many jurisdictions statutory schemes are in place to allow for the ongoing garnishing of earnings.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

As a result of the doctrine of crown immunity, debts owing by the crown may only be attached, in accordance with statutory authority. With regard to redirection of earnings from an employer, the rules should be consulted carefully, as there are jurisdictional nuances amongst them. For example, in South Australia, the judgment debtor must consent to an order redirecting earnings to the judgment creditor: (ACT), r 2350; (NSW) Civil Procedure Act 2005, s 119; (NT), r 72.03; (Qld), r 855; (SA) Enforcement of Judgments Act 1991, s 6; (Tas), rr 921, 923; (Vic), r 72.03; (WA) Civil Judgments Enforcement Act 2004, s 35.

Charging Orders [17.50]  The judgment creditor may obtain an order creating a

charge over property owned by the debtor. Usually a charging order is used to obtain a charge over stocks and shares. Such a charge creates the same rights as if the debtor had given an equitable charge over the property, and is enforceable in the same way. As such, a charge pursuant to a charging order takes effect subject to existing interests. A charging order may only be obtained over property that the debtor owns or in which the debtor has a present interest. In Irani Finance Ltd v Singh [1971] Ch 59, the court found that a charging order could not be made over land held by the debtor jointly with others. A joint tenant’s interest is in the proceeds of sale not a separate share of the property. In Western Australia, a charging order may not be obtained, as a special order of court

170 

 Civil Procedure

is required to realise intangible or equitable property: Civil Judgments Enforcement Act 2004 (WA), s 86.

Appointment of a Receiver [17.60]  Where common law methods of execution are not suf-

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

ficient, equity may appoint a receiver. The appointment of a receiver is discretionary, and usually only after the common law methods of execution have proved inadequate: Morgan v Hart [1914] 2 KB 183. The receiver is placed in the same position as the debtor and may therefore receive the income from property, or other entitlements of the judgment debtor. The court also has an inherent power to confer on the receiver a power of sale: AIDC v Co-​ Operative Farmers & Graziers Direct Meat Supply Ltd [1978] VR 633.

Enforcing Non-​money Judgments [17.70]  If the judgment is not for the payment of money direct

to the other party, other methods of enforcement are available. Judgments other than for the payment of money may be legal or equitable and fall into two general classes: (a) orders compelling or restraining an act or acts; and (b) orders for the delivery of possession of land or goods. Orders for the transfer of property may be enforced by applying for an order directing the registrar of the court or another third party to undertake the acts necessary on the part of the defaulting party to enforce the orders. This is a common method of enforcing specific performance and Family Court judgments involving property transfers: the registrar of the court is authorised to sign the transfer documents on behalf of the defaulting party. The various alternative methods of enforcement of these types of orders, and the restrictions upon their use, are as follows.

Ch 17: Enforcement 

 171

Sequestration [17.80]  Sequestration involves the seizure of the defaulting par-

ty’s property pending compliance with the order of the court. Sequestration may be used to enforce any order requiring an act or restraint, as well as enforcing transfer or delivery up of possession of land or goods.

Attachment

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[17.90]  Attachment is the physical arrest of a party in breach of

an injunction or other equitable order of the court. An application is made to the court for an order for attachment (arrest) of the defaulting party. The defaulting party is arrested. The court may imprison the offending party, or order that the writ of attachment lie in the registry to given the offending party an opportunity to comply with the order.

Committal [17.100]  Committal is the common law process of imprisoning a

party in contempt of an order of the court.

Writ of Possession [17.110]  This is the method of execution to obtain possession of

land. If the judgment is a common law form of judgment (that is, for recovery of possession or ejectment) it may be enforced immediately. If an equitable form of judgment has been granted (delivery up of possession) a time for compliance with the order must be set by the court, and have expired before the judgment may be enforced: Plowman v Palmer (1914) 18 CLR 339. In some States and Territories, there have been statutory modifications to simplify the technical nature of this remedy. To obtain a writ of possession, the applicant must apply to a court and prove service of the order, and non-​compliance. To execute the writ, a sheriff attends upon the land and gives vacant possession to the party so entitled under the judgment.

172 

 Civil Procedure

A party entitled to possession under a judgment may also seek to enforce the judgment by sequestration, attachment or committal.

Writ of Delivery [17.120]  The writ of delivery is similar to a writ of possession,

however is used for recovery of personal property rather than real property.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Interstate and Overseas Judgments Interstate Judgments [17.130] Interstate judgments may be registered with the

court and then enforced as if they were judgments of the local court: Service and Execution of Process Act 1992 (Cth), Pt 6. A sealed copy of the original judgment must be lodged on application to register the judgment, or if a fax is relied upon within seven days. The person the subject of the judgment may apply for a stay. Interest continues to accrue at the rate applicable in the jurisdiction where the order was made, and reasonable costs are allowed for the enforcement of the judgment.

Overseas Judgments [17.140] The Commonwealth has enacted a statutory scheme

allowing for the enforcement of foreign judgments in Australia: Foreign Judgments Act 1991 (Cth). The scheme provides for the registration of foreign judgments from with which Australia has reciprocal rights. The Trans-​Tasman Proceedings Act 2010 (Cth) deals with the recognition and enforcement in Australia of certain judgments of the New Zealand courts and tribunals.

18 Alternative Dispute Resolution Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Introduction [18.10]  Alternative dispute resolution procedures are now cen-

tral to all of the civil procedure rules in Australia, and most other common law jurisdictions. As the vast majority of civil cases in any given jurisdiction will settle prior to trial, it is essential that settlement be reached as quickly as possible, minimising the expense of the parties and the court system: see Chapter 13 Settlement. While all people, acting reasonably and possessed of good negotiating skills, will be likely to settle cases, experience shows that often parties are unable to reach a settlement without assistance. However, negotiation skills remain of primary importance to the litigator, as most cases will still settle by negotiation alone. The courts usually require some form of mediation prior to allocating trial dates; thus a thorough understanding of mediation is also essential to the contemporary practitioner. In some areas, particularly in the construction and commercial sectors, in an effort to avoid litigation altogether, arbitration agreements are entered into between the parties for the appointment of an arbitrator to hear and determine the dispute. Negotiation, mediation and arbitration can be seen as points on a continuum: • negotiation being unaided interaction between the parties in an attempt to settle a dispute; 173

174 

 Civil Procedure

• mediation being a process involving a neutral third party to assist the parties in negotiating a settlement; and

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• arbitration being a process approaching formal litigation. There are also many variants of these processes that do not fall neatly into one or the other category. The most important variant under the various court rules is case appraisal. In a case appraisal, an appointed appraiser hears a “mini-​trial” of the matter and gives an appraisal of what judgment would be expected. The parties can accept the appraisal as a consent judgment or proceed to trial. However, if a party does not accept the outcome of the case appraisal there are costs implications if they do not ultimately obtain a judgment more favourable than the case appraisal.

Negotiation [18.20]  There are many methods of negotiation; however it is

useful to consider “hard bargaining” and “principled negotiation”, which represent systems at opposite ends of the spectrum. While “hard bargaining” is rarely taught at universities and colleges, it remains a system adopted by many practitioners and cannot be avoided. However, it is clear that “hard bargaining” is often not the most productive form of negotiation and often fails to achieve a settlement, or at least a form of settlement most advantageous to both parties. Hard bargaining will usually destroy what relationship parties may have been able to salvage from the dispute. Principled negotiation, in contrast, aims to build on common ground, explore possibilities of mutual gains, and maintain or even build a relationship between the parties. Interestingly, in small centres, where practitioners must negotiate with each other regularly, a form of “principled negotiation” usually develops as the practitioners develop a relationship that transcends any given dispute. However, in cases such as personal injuries actions against insurers, there will never be any question beyond

Ch 18: Alternative Dispute Resolution 

 175

the amount that the insurer may have to pay, often resulting in a return to hard bargaining strategies. While some people are clearly born negotiators, it remains a skill that we can all learn and improve upon over time. Negotiation skills are one of the often unmentioned commodities that good lawyers ought to be providing to clients. Central to the improvement of negotiation skills is the identification of the tactics and strategies being employed by the parties. Once the process items can be identified, rational responses may be developed.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

tactical moves in their article “Tactics for Legal Services Lawyers” (1973) 7 Clearinghouse Review 259 which are categorised as preparatory tactics, initial tactics and general tactics. While many of the tactics are ones that the more open and ethical negotiator will avoid, it remains a useful catalogue to review and be familiar with. For example, it is sometimes surprising the impact one can have by simply identifying the tactic and telling the other side that the particular tactic is simply not helpful.

Preparatory Tactics [18.40]  Arrange to negotiate on your own turf. This may be even

more effectively achieved by arranging meetings at your clients’ premises. Don’t be outnumbered. Be aware that often a dispute discussed in a group will be resolved by a compromise balancing the views of the participants. Be aware of the pressure of time. The party with time constraints often concedes ground to meet deadlines, whether they are significant (in the sense of contracts and approvals) or not (such as boarding a flight, or Friday lunch). Know the facts thoroughly. Lack of preparation leaves one at the mercy of the other side’s version of events.

176 

 Civil Procedure

The “Lock-​In”. This is a dangerous, but often effective tactic. One simply publicly makes known a position, even if it be simply among the various parties, making a point or basic position effectively non-​negotiable. The “Pre-​condition”. By setting a pre-​condition to commencing negotiations, a psychological advantage may be achieved as the other side will have made at least one concession prior to talking and has at least a small investment in settling.

Initial Tactics Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[18.50]  Who makes the first offer? This is often the most difficult

decision for negotiators, as some see it as a concession that you really want to settle. Often a first offer can be induced from an opponent by simply saying nothing and allowing them to fill the uncomfortable silence. However, it is important to remember that the first offer may set the agenda, thus a first offer based on the strong part of a case may keep the agenda away from weaknesses. Make your first offer high. This is not a tactic embraced by Fisher and Ury in their system of Principled Negotiation; however it is often very effective. Even very high opening offers can seem more reasonable after discussion, and they allow plenty of room for apparent concessions. Remember there is a negotiation cycle. Major demands should go at the beginning as this is often when everyone is most favourable to the concept of settling. However, small and difficult issues may do better at the end, when the parties do not want them to destroy the agreement on the big issues. Thus, one should plan when to introduce items of dispute. Make the other side make the first concession. This is simply a psychological advantage.

General Tactics [18.60]  Good Cop -​Bad Cop. This can be very effective, as the

“good cop” can make marginal concessions and appear very

Ch 18: Alternative Dispute Resolution 

 177

conciliatory while giving the impressions that such concessions are major having regard to the attitude of the “bad cop”. Know your law. Even lawyers remain impressed with the citation of authority, and if the other side is not clear on the law, it can have a great impact. It also saves you from having to talk about the effects of the case if you do not wish to disclose them.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Act tough. Unfortunately, the tough negotiator often comes off best. The irrational routine. Appearing irrational, or even downright mad, is often a tactic to make the other side settle, just to avoid future dealings. It was a tactic that worked exceptionally well for Khrushchev in 1960 when he banged his shoe on a table at the United Nations, leading to real fears that he would unleash the Soviet nuclear weapons, as he seemed so irrational. Raise other demands as concessions are made. This is a method of minimising concessions in multi-​issue negotiations. This is particularly effective if an opponent is constrained by time. Authority to Settle. Often a lawyer will say that they do not have authority to go beyond a certain point, and that the client is adamant. This leads to the importance of having the other party at negotiations. However, be aware that having your own client present may result in the client making concessions without discussing them with you first. Check any agreement with the client first. This provides two significant benefits: first it minimises your risk of being sued by your client, and secondly it gives some breathing space to reflect on the terms of the offer. Make the other side feel good. If the other side think that they have a very good settlement they are unlikely to break the terms of the settlement, and be willing negotiators on the next occasion. The last gasp. This trick is simply to wait until all seems agreed and then refusing to sign until a further concession is made.

178 

 Civil Procedure

Offer to reduce the agreement to writing. This gives you the option to structure or frame the agreement. As many lawyers think that the negotiations are over by this point, it allows you to ensure the agreement reflects your understanding of the settlement.

Why Negotiations Fail

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[18.70] Goldberg et al, in Dispute Resolution (Little Brown and Co., Boston, 1992) list ten significant factors that are often involved when negotiators fail to reach an agreement:

1. failure of adequate preparation (fact gathering and analysis as well as strategic planning); 2. failure of effective communication; 3. emotionalism; 4. extrinsic factors such as linkages to other disputes or pre-​ existing commitments; 5. different perceptions of alternatives to agreement, being: a. different information; or b. different assessments of the same information; 6. constituency pressures; 7. stakes not suited to compromise, such as intensely held personal values that are not likely to be conceded voluntarily, or where a party’s economic survival is threatened; 8. different attitudes to risk; 9. different attitudes toward the desirability of a prompt settlement; and 10. no zone of agreement. As the reader will note there is nothing surprising or unusual on the list. In fact, most people will be able to think of examples from their own practice of all of the matters listed. However, the usefulness of the list is that it provides a checklist of areas that may be the blockage to a particular negotiation, and thus areas to be worked on when dealing with the other party. The first step to overcoming a blockage is its clear identification.

Ch 18: Alternative Dispute Resolution 

 179

Principled Negotiation [18.80]  The concept of “Principled Negotiation” was developed

by Fisher and Ury (authors of Getting to Yes, Penguin) as an alternative to the standard tactics set out above, and to provide some tools to deal with some of the difficulties of the standard tactics. Fisher and Ury suggest a model that categorises the process into seven areas which may each be worked on separately:

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Relationships. Do the parties or the negotiators have an ongoing relationship? Are the negotiations stalling because of a failure to separate the people from the problem? Communication. Often the dictionary meaning of the words doesn’t tell us the real message. Are you listening for the real message, and what messages are you sending? How much useful information is really being exchanged? Interests. Identifying the interests of the parties and the negotiators. Many have shared or compatible interests that can be used as stepping stones to further areas of agreement. Alternatives. What is each party’s best case and worst case scenario? It is surprising how often this is not really thought through –​for example if a major car dealer loses a case, is it just the costs of the case or will there be a feature in the Sunday papers? Options. What options are there, and can more be developed? In personal injury cases this is difficult, as the only real option is the payment of money, however in most other cases there are options outside the specific dispute, particularly when the parties are apportioning a loss caused by a third party rogue, or in cases of genuine misunderstandings. Options are far easier to generate if relationships are built during the process. Legitimacy. Are there objective criteria, and what do they show? This is where preparation is central. In almost all cases, objective criteria can be found, such as book values, other quotes to do work, other case outcomes on quantum, etc. Commitments. Commitments must be realistic and effective. This may present problems in drafting agreements, and

180 

 Civil Procedure

will depend on levels of trust and relationships. Even the commitment to negotiating a settlement may need to be assessed before disclosing sensitive material.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

The way that this concept can be applied to defeat standard tactics is set out in Fisher and Ury, Getting Past No: Negotiating With Difficult People (Bantam, 1993). Fisher and Ury’s model is important for repeat negotiators (such as lawyers) who will negotiate against each other on a regular basis. If both parties are aware of the standard ploys, they become obstructive to a settlement. Fisher and Ury offer a system that moves both sides to a fair settlement.

Summary [18.90] Effective negotiation is something that must be devel-

oped over time. Keeping a diary, or at least reviewing negotiations after they are over, is one very helpful way of improving skills. To critically review performance, the factors and concepts set out above should prove useful. The many dubious tactics listed above have not been identified to encourage their use by the reader, but to enable identification when being used by adversaries, as once identified most of the tactics lose much of their impact. Fisher and Ury’s model, however, appears to have an improved impact when the opponent is aware it is being employed.

Mediation [18.100] Mediation proceeds on the basis that a neutral third

party will assist the parties to negotiate an agreement. A common “model” for the mediation process is: (1) the Mediator makes an opening statement outlining their role and any ground rules for the mediation; (2) the parties each make an opening statement outlining their positions, which the mediator summarises into concise and neutral language;

Ch 18: Alternative Dispute Resolution 

 181

(3) the mediator assists the parties in identifying the issues and setting an agenda for the mediation; (4) the issues are then clarified and explored; (5) the parties may caucus with the mediator, in the absence of the other party; (6) the parties come together for a further joint session for failed negotiations; and (7) the mediation outcomes and agreements are noted.

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

All of the court rules now provide for mediations, or compulsory conferences, prior to obtaining a trial date.

Arbitration [18.110]  Arbitration is common in the building and engineering

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

182 

 Civil Procedure

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

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

Index Alternative dispute resolution arbitration, 18.10, 18.110 arbitration clauses, 18.110 international arbitration, 18.110 State and Territory laws, 18.110 mediation, 18.10, 18.100 common model, 18.100 mini-​trial, 18.10 negotiation, 18.10, 18.20 development of skills, 18.90 failure of negotiations, 18.70 hard bargaining, 18.20, 18.30 principled negotiation 18.20, 18.80 overview, 10.10, 13.10, 18.10

Access to justice overview, 2.10

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Actions in personam appearance, 7.80 jurisdiction, 3.10 service of process, 3.100 Actions in rem appearance, 7.80 jurisdiction, 3.10 Adjournments, 14.100 Adversarial system commencement of proceedings, 1.150 developments, 13.10 inquisitorial system, and, 1.150 overview, 1.150 Affidavits contents, 9.70 cross-​examination of deponents, 9.80 discovery of documents, 12.40 challenging discovery, 12.70 self-​incrimination, 12.240 form, 9.70 interrogatories, 12.90 overview, 9.70

Anonymous parties, 4.150 Anton Piller orders, 9.40 Anshun estoppel, 4.160 Appeals appeal book, 16.20 costs, 16.90 hearing de novo, 16.10 High Court, 16.40 leave to appeal, 16.40 lodgment, 16.20

Agents answering interrogatories, 12.110 parties to proceedings, 4.100

183

184 

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Appeals — cont overview, 16.10 re-​hearings, 16.10 exercise of discretion, 16.50 findings of fact, 16.60 further evidence, 16.70 settlement offers, 16.90 stay of decision, 16.30 strict appeals, 16.10 Appearance actions in personam, 7.80 actions in rem, 7.80 conditional appearance, 7.100 overview, 7.80 unconditional appearance, 7.90 writ, commencement by, 7.80 Arbitration arbitration clauses, 18.110 international arbitration, 18.110 overview, 18.10, 18.110 State and Territory laws, 18.110 Arbitrators appointment, 14.50, 18.110 Attorney-​General relator actions, 4.60 Bankruptcy enforcement of judgments, 17.10 Bias, 1.140 Case law, 1.10, 1.60

 Civil Procedure Case management amendment of pleadings, 11.70 key features, 2.30 overview, 2.30 principles, 2.30 sanctions, 2.30 Case management schemes Australian Capital Territory, 2.70 Federal Court, 2.60 High Court, 2.50 New South Wales, 2.80 commercial list, 2.110 construction list, 2.110 District Court, 2.90 Supreme Court, 2.100 Northern Territory, 2.170 overview, 2.30 Queensland, 2.150 South Australia, 2.130 Tasmania, 2.160 Victoria, 2.120 Western Australia, 2.140 Civil justice system access to justice, 2.10 criticisms, 2.10 delay, 2.10 Civil, use of term, 1.10 Class actions conduct of proceedings, 4.140 costs, 4.140 identification of class, 4.140 opting-​out, 4.140 representative actions, and, 4.130 statutory schemes, 4.110, 4.130 sub-​groups, 4.140

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Index  Commencement of proceedings —​ see Ending proceedings early —​ see Interlocutory applications adversarial system, 1.150 Australian Capital Territory, 6.30 endorsements, 6.100 Federal Court, 6.20 New South Wales, 6.40 Northern Territory, 6.90 plaintiffs, 14.110 Queensland, 6.50 representative proceedings, 4.130 South Australia, 6.60 Tasmania, 6.70 Victoria, 6.90 Western Australia, 6.80 writs, 6.70, 6.80, 6.90 appearance, 7.80 Common law discovery, 12.10 equity, and, 1.20 set-​off, 8.70 Competition and Consumer Act limitation periods, 5.30 Contract claims limitation periods, 5.20, 5.40 pleadings, 8.60

 185 appeals, 16.90 settlement offers, 16.90 class actions, 4.140 disclosure obligations, 15.80 discontinuance, 10.80 effect on litigants, 1.210 oral proceedings, 1.160 orders to pay, 15.10 forms of orders, 15.70 general principles, 15.30 indemnity, 15.20 multiple parties, 15.60 non-​parties, 15.30 partial orders, 15.70 power to order, 1.210, 15.30 security for costs, 15.40 overview, 1.210, 15.10 security for costs, 15.40 amount of security, 15.40 court’s considerations, 15.40 director’s guarantees, 15.40 jurisdiction, 15.40 settlement offers, 12.260, 13.10, 13.20, 13.30, 13.40, 16.90 taxation of costs, 1.210, 15.10, 15.80 process, 15.80 scale of fees, 15.80 time costing, 15.10 types of costs, 15.20

Corporations parties to proceedings, 4.20 privilege against self-​ incrimination, 12.240

Cross-​vesting scheme constitutional invalidity, 3.90 object of scheme, 3.90 onus, 3.90 overview, 3.10, 3.90 Territories, 3.90 transfer of proceedings, 3.90

Costs agreements, 15.10

Crown party to proceedings, 4.50

186  Damages personal injuries, 5.20 limitation periods, 5.20 Deceased persons parties to proceedings, 4.110

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Defamation limitation periods, 5.30 Default judgments compliance with rules, 10.30 interest, 10.30 overview, 10.10, 10.30 setting-​aside, 10.30 Defences —​ see Set-​off Delay civil justice system, 2.10 service of process, 11.30 Demurrer, 8.60, 10.70 Directions hearings overview, 2.20 Disability, under limitation periods, 5.60 parties to proceedings, 4.80 settlement, 13.60 Disclosure by parties —​ see Discovery overview, 1.180 Discontinuance costs, 10.80 overview, 10.10, 10.80 Discovery

 Civil Procedure common law, 12.10 consequences of failure, 12.30 documents, 12.10, 12.40 affidavit of documents, 12.40, 12.70, 12.240 challenging discovery, 12.70 court orders, 12.40 definition, 12.40 identification, 12.40 inspection, 12.40, 12.170 notice to produce, 14.20 ongoing obligation to disclose, 12.80 possession or power, 12.60 privilege, 12.160, 12.240 scope of discovery, 12.50 types of documents, 12.50 equitable remedy, 12.20, 12.30 examinations, 12.170 inspections, 12.40, 12.170 interrogatories, 12.10, 12.90 answering, 12.110 drawing, 12.100 leave of court, 12.90 objections, 12.120, 12.130, 12.140, 12.150, 12.190 privilege, 12.160, 12.210, 12.220 scandalous interrogatories, 12.130 trial procedure, 14.20 non-​party discovery, 12.190 notice to admit, 12.10, 12.180 objections, 12.210 interrogatories, 12.120, 12.140, 12.150 oppression, 12.150, 12.280 privilege, 12.160, 12.210, 12.220–​12.270 oppression, 12.280 oral discovery, 12.200

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Index  overview, 1.180, 12.10 personal injuries claims, 12.40, 12.150, 12.170 pleadings, and, 12.10 practitioner’s obligations, 12.30 privilege, 12.30, 12.160, 12.210 statutory privilege, 12.270 without prejudice, 12.260 privilege against self-​ incrimination, 12.240 penalty or forfeiture, 12.240 public interest privilege, 12.250 court’s considerations, 12.250 purposes, 12.30 restrictions, 12.30 use of material, 12.30 Dismissal for want of prosecution application of principles, 10.20 court’s considerations, 10.20 court’s power, 10.20 overview, 10.10 prejudice, 10.20 Documents —​ see Discovery Ending proceedings early alternative dispute resolution, 10.10 default judgments, 10.10, 10.30 compliance with rules, 10.30 setting-​aside, 10.30 discontinuance, 10.10, 10.80 dismissal for want of prosecution, 10.10

 187 application of principles, 10.20 court’s considerations, 10.20 judgment on pleadings or admissions, 10.10, 10.70 striking out, 10.70 mechanisms, 10.10 effects, 10.10 overview, 10.10 settlement, 10.10 summary judgments, 10.10 applications, 10.40, 10.50 availability, 10.40 effect of award, 10.40 purpose, 10.40 test, 10.60 Enforcement of judgments execution of judgments, 17.10 Mareva orders, 17.10 foreign judgments, 17.140 interstate judgments, 17.130 limitation periods, 5.30, 17.10 money judgments, 17.20 appointment of receiver, 17.60 attachment of debts, 17.40 bankruptcy or liquidation, 17.10 charging orders, 17.50 methods of enforcement, 17.20 writ of fieri facias, 17.30 non-​money judgments, 17.70 attachment, 17.90 committal, 17.100 sequestration, 17.80 writ of delivery, 17.120 writ of possession, 17.110 overview, 17.10 stay of judgment’s effect, 17.10

188 

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Equity discovery, 12.20 historical background 1.20 limitation periods 5.30 set-​off, 8.70 Errors and defaults amendment, 11.70 formal process, 11.70 limitation periods, and, 11.80 names of parties, 11.90 irregularities, 11.20 overview, 11.10 time limits, 11.10, 11.30 calculation of time, 11.10 self executing orders, 11.40 service, 11.30 Evidence —​ see Affidavits —​ see Discovery appeals, 16.10 re-​hearings, 16.70 trial procedure, 14.10, 14.20, 14.110 Ex parte applications, 9.20 Family Court of Australia jurisdiction, 3.60 Family Law Act limitation periods, 5.30 Federal Court of Australia case management scheme, 2.60 commencement of proceedings, 6.20 discovery of documents, 12.50 jurisdiction, 3.50

 Civil Procedure service, 11.50 outside Australia, 3.110, 7.40 Finality overview of principle, 1.120 Forms —​ see Precedent pleadings overview, 1.80 Fraud joinder of parties, 4.160 limitation periods, 5.70 Freezing orders, 9.50 Functus officio, 1.120 High Court case management scheme, 2.50 demurrer 8.60, 10.70 jurisdiction, 3.20, 3.30 exclusive jurisdiction, 3.40 remittal of matters, 3.40 special leave to appeal, 16.40 History jury system, 1.190 overview, 1.20 Infants limitation periods, 5.60 parties to proceedings, 4.70 settlement, 13.60 Inherent jurisdiction, 1.90 Injunctions interim injunctions, 9.20

Index  interlocutory injunctions, 9.10, 9.20 Mareva orders, 9.50 requirements, 9.30

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Interlocutory applications affidavits, 9.70 cross-​examination of deponents, 9.80 ex parte applications, 9.20 overview, 6.10, 9.10 procedure, 9.20 service, 7.10, 9.10 Interlocutory orders Anton Piller orders, 9.40 freezing orders, 9.50 interlocutory injunctions, 9.10, 9.20 Mareva orders, 9.50 requirements, 9.30 Mareva orders, 9.50, 17.10 overview, 9.10 property preservation orders, 9.30, 9.40 search orders, 9.40 undertakings as to damages, 9.60 urgent cases, 9.20

 189 scandalous interrogatories, 12.130 trial procedure, 14.20 unfair purpose, 12.140 Issue estoppel, 1.120 Joinder of parties advantages, 4.160 alternative parties, 4.170 Anshun estoppel, 4.160 causes of action, 4.160, 4.180 restrictions, 4.200 defendants, 4.160, 4.180 joint parties, 4.170 necessary parties, 4.210 overview, 4.160 separate plaintiffs, 4.160, 4.190 same transaction, 4.190 several parties, 4.160, 4.170 severance of joinder, 4.160 Judgments —​ see Enforcement of judgments interest on judgment, 14.140 overview, 14.10, 14.130 reasons for decision, 1.200

Interpleader, 4.220

Judicial functions, 1.110

Interrogatories answering, 12.110 employees or agents, 12.110 drawing, 12.100 common failings, 12.100 leave of court, 12.90 objections, 12.120 privilege, 12.160, 12.220 oppression, 12.150 overview, 12.10, 12.90 purposes, 12.90

Jurisdiction actions in personam, 3.10 service of process, 3.100 actions in rem, 3.10 cross-​vesting scheme, 3.10, 3.90 constitutional invalidity, 3.90 object of scheme, 3.90 territories, 3.90 transfer of proceedings, 3.90

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

190  Jurisdiction — cont Family Court of Australia, 3.60 Federal Court of Australia, 3.50 geographical jurisdiction, 3.10 High Court, 3.20, 3.30 remittal of matters, 3.40 inherent jurisdiction, 1.90 monetary limits, 3.10 overview, 3.10 security for costs, 15.40 service of process, 3.10, 3.100, 3.100 outside jurisdiction, 3.110, 7.40 State and Territory courts, 3.20 cross-​vesting scheme, 3.90–​3.100 magistrates’ court, 3.20 statutory extension, 3.10, 3.110 cross-​vesting scheme, 3.90–​3.100 service of process, 3.100 subject matter limits, 3.10 Jury trials availability, 1.190, 14.40 historical origins, 1.190 overview, 1.190, 14.10 right to jury trial, 14.40 verdicts, 14.120 Legal aid funding, 2.10 Legal costs —​ see Costs Legal professional privilege confidential legal advice, 12.230

 Civil Procedure dominant purpose test, 12.230 overview, 12.230 waiver by client, 12.230 Limitation periods amendment, and, 11.80 calculation of time, 5.40 commencement of time, 5.50 disability, under, 5.60 expiration of time, 5.80 fraud, 5.70 mistake, 5.70 Commonwealth, 5.30 Competition and Consumer Act, 5.30 contract claims, 5.20, 5.50 defamation, 5.30 enforcement of judgments, 5.30, 17.10 equitable claims, 5.30 extension of period acknowledgment, 5.90 latent damage, 5.100 personal injuries, 5.110 Family Law Act, 5.30 overview, 5.10 personal injury claims, 5.20 contribution or indemnity, 5.20 extension of period, 5.110 rationale, 5.10 real property, 5.30 State and Territory Acts, 5.20 tort claims, 5.20 negligence, 5.50 Liquidation enforcement of judgments, 17.10 Mareva orders, 9.50, 17.10

Index  Mediation common model, 18.100 overview, 18.10, 18.100 Mistake limitation periods, 5.70

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Natural justice —​ see Procedural fairness Negotiation development of skills, 18.90 failure of negotiations, 18.70 hard bargaining, 18.20 general tactics, 18.60 initial tactics, 18.50 preparatory tactics, 18.40 overview, 18.10 principled negotiation, 18.20 elements of process, 18.80 Non-​profit associations parties to proceedings, 4.20 Oral proceedings costs, 1.160 overview of principle, 1.160 Originating proceedings overview, 6.10 Parties —​ see Joinder of parties agents, 4.100 amendment of names, 11.90 anonymous parties, 4.150 class actions, 4.120, 4.130 corporations, 4.20 Crown, 4.50 deceased persons, 4.110 disability, under, 4.80 infants, 4.70

 191 non-​profit associations, 4.20 overview, 4.10 partnerships, 4.40 procedural privity, 1.130 relator actions, 4.60 representative proceedings, 4.130 trustees, 4.90 unincorporated associations, 4.30 Partnerships parties to proceedings, 4.40 Personal injury claims discovery, 12.50, 12.150, 12.170 limitation periods, 5.20 contribution or indemnity, 5.20 extension of period, 5.110 particulars, 8.130 Pleadings amendment, 11.70 formal process, 11.70 principles, 11.70 counter-​claims, 8.70 defence, 8.30 confession and avoidance, 8.50 demurrer, 8.60, 101 denial of allegations, 8.40 objections, 8.60 pleas in discharge, 8.50 pleas in justification, 8.50 reply to defence, 8.80 set-​off, 8.70 difficulties in not pleading, 8.10 discovery, and, 12.20, 12.30 functions, 8.10 implied joinder, 8.100

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

192  Pleadings — cont judgment on pleadings or admissions, 10.10, 10.70 striking out, 10.70 overview, 8.10 particulars, 8.20, 8.130 examples, 8.130 function, 8.130 identity of persons, 8.130 precedents, 1.80, 8.20 reply to defence, 8.80 requirements, 8.10 statement of claim, 8.20 condition of mind, 8.20 conditions precedent, 8.20 demurrer, 8.60 particulars, 8.20 structure, 8.20 third parties, 8.120 three-​document system, 8.10 Practice directions forms, 1.80 overview, 1.80 precedent pleadings, 1.80 Precedent —​ see Case law Precedent pleadings availability, 8.20 overview, 1.80 Principles of procedure adversarial system, 1.150 costs, 1.210-​1.220 disclosure by parties, 1.180 finality of decisions, 1.120 jury system, 1.190 oral proceedings, 1.160 procedural fairness, 1.140 procedural privity, 1.130

 Civil Procedure provision of reasons, 1.200 public hearings, 1.170 Privilege discovery, 12.30, 12.160, 12.220–​12.270 legal professional privilege, 12.230 public interest privilege, 12.250 statutory privilege, 12.270 types of privilege, 12.220–​12.270 without prejudice, 12.260 Privilege against self-​incrimination discovery, 12.240 penalty or forfeiture, 12.240 overview, 12.240 Procedural fairness overview of principle, 1.140 Procedural privity overview of principle, 1.130 Procedure use of term, 1.10 Property preservation orders, 9.30, 9.40 Public hearings overview of principle, 1.170 Public interest privilege discovery, 12.250 court’s considerations, 12.250 overview, 12.250

Index  Real property limitation periods, 5.30 Reasons for decisions obligation to provide, 1.200 Referees appointment by court, 14.50

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Relator actions, 4.60 Representative proceedings class actions, and, 4130 commencement of proceedings, 4.130 common interest, 4.130 overview, 4.130 requirements, 4.130 Res judicata, 1.120 Rules of court English courts, 1.50 forms, 1.80 overview 1.10, 1.50 precedent pleadings 1.80 Self executing orders, 11.40 Separation of powers, 1.110 Service of process —​ see Appearance acceptance of documents, 7.20 concurrent writs, 7.20 delay, 11.30 in serving initiating process, 11.50 taking a step after, 11.60 Federal Court, 3.110, 7.50, 11.50

 193 interlocutory proceedings, 7.10 interstate service, 7.30 jurisdiction, 3.10, 3.100, 3.110 outside jurisdiction, 3.110, 7.40 ordinary service, 7.10 outside Australia, 3.110, 7.40 Federal Court, 3.110, 7.50 nexus requirement, 3.110, 7.50 overview, 7.10 personal service, 7.20 proof of service, 7.20 registered mail, 7.30 statutory aids, 7.30 substituted service, 7.70 time limits, 11.30 Set-​off equitable set-​off, 8.90 legal set-​off, 8.70 overview, 8.70 Settlement acceptance of formal offer, 13.40 disability, under, 13.60 enforcement, 13.70 infants, 13.60 informal agreement, 13.50 formalisation of settlement, 13.50 overview, 10.10, 13.10 Settlement offers Calderbank offers, 13.30 costs, and, 13.10–​13.40 appeals, 16.90 formal offers, 13.40, 13.50 overview, 13.10 payment into court, 13.20

194  Simple actions overview of stages, 1.220

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Sources of law case law, 1.10, 1.60 forms, 1.80 inherent jurisdiction, 1.90 overview, 1.10 practice directions, 1. precedent pleadings, 1.70 rules of court, 1.10, 1.50 forms and precedents, 1.80 statutory law, 1.10, 1.30-​1.40 Standing interest groups, 1.130 State and Territory courts —​ see Case management schemes commencement of proceedings New South Wales, 6.40 Northern Territory, 6.90 Queensland, 6.50 South Australia, 6.60 Tasmania, 6.70 Victoria, 6.90 Western Australia, 6.80 jurisdiction, 3.20 cross-​vesting scheme, 3.90–​3.100 federal jurisdiction, 3.20 magistrates’ court, 3.20 Statement of claim condition of mind, 8.20 conditions precedent, 8.20 demurrer, 8.60 overview, 8.20 particulars, 8.20 structure, 8.20

 Civil Procedure States and Territories discovery of documents, 12.40 limitation periods, 5.20 service outside Australia, 3.110, 7.60 nexus requirement, 3.110, 7.50 Statutes of limitation —​ see Limitation periods Statutory law, 1.10, 1.30-​1.40 Stay of decision, 16.30 Subpoenas, 14.20 Summary judgments applications, 10.40, 10.50 availability, 10.40 effect of award, 10.40 overview, 10.10 purpose, 10.40 test, 10.60 Third parties pleadings, 8.120 Time limits —​ see Limitation periods abridgement or extension, 11.30 calculation of time, 11.10 self executing orders, 11.40 service, 11.30 Tort claims limitation periods, 5.20 negligence, 5.50 Trials adjournments, 14.100 arbitrators, 14.50

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Index  course of trial, 14.110 evidence, 14.110 date for trial, 14.90 evidence, 14.10, 14.110 advice on evidence, 14.20 judge, hearing by, 14.10, 14.20 judgments, 14.10, 14.130 interest on judgment, 14.140 jury trials, 1.190, 14.10 availability, 1.190, 14.20, 14.40 historical origins, 1.190 jury verdict, 14.120 mode of trial, 14.30 overview, 9.10, 14.10 preparation for trial, 14.20 referees, 14.50 speedy trial orders, 14.70 splitting trials, 14.60 subpoenas, 14.20 venue, 14.80 witnesses, 14.20 Trustees parties to proceedings, 4.90

 195 Unincorporated associations parties to proceedings, 4.30 Without prejudice communications, 12.260 Witnesses subpoenas, 14.20 Writs commencement of proceedings, 6.70, 6.80, 6.90 appearance, 7.80 concurrent writs, 7.20 enforcement of judgments, 17.20 delivery, 17.120 fieri facias, 17.30 execution of judgment, 17.10 possession, 17.110 historical background, 1.20