Zuckerman on Australian Civil Procedure [1 ed.] 9780409342161, 0409342165

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Zuckerman on Australian Civil Procedure Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Zuckerman on Australian Civil Procedure

Zuckerman on Australian Civil Procedure   Adrian A S Zuckerman Stefanie Wilkins Jonathan Adamopoulos Andrew Higgins Stephanie Hooper Alexander Vial

 With contributions from Ian Ranson Naomi Oreb Claire Jago Charles Rae

LexisNexis Butterworths Australia 2018

 

Page 2 of 3 Zuckerman on Australian Civil Procedure

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9780409342147 (hbk). 9780409342130 (pbk). 9780409342161 (ebk).

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Copyright Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Zuckerman on Australian Civil Procedure

Copyright © 2018 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Plantin. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Disclaimer Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Zuckerman on Australian Civil Procedure

Disclaimer Zuckerman on Australian Civil Procedure, has been written, edited and published and is sold on the basis that all parties involved in the publication exclude any liability, including negligence or defamation, for all or any damages or liability in respect of or arising out of use, reliance or otherwise of this book. The book should not be resorted to as a substitute for professional research or advice for any purpose.

End of Document

Currency Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Currency

Currency The content of this book is current to the date of publication — May 2018. The references to the legislation within this book are current to that date. The content of this book will be updated with the release of any new edition. As an enhancement to this book, links have been provided to any legislation that is reproduced within our looseleaf publications. The legislation within the looseleaf publications is updated on an ongoing basis. Historical notes are provided within the legislation to indicate the last date any amendments were made.

End of Document

About the Authors Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > About the Authors

About the Authors Adrian A S Zuckerman is Emeritus Professor of Civil Procedure at Oxford University and Emeritus Fellow of University College Oxford. He is a prominent civil litigation scholar and a notable commentator on the administration of civil justice generally. His work has drawn attention to the principles and policies that shape litigation practice and to their wider social impact, particularly on access to justice. He has influenced litigation policy and judicial practice, especially with regard to case management and litigation costs. He contributed to the Woolf Report on Access to Justice, and to the Jackson Review of Civil Litigation Costs. He is author of Zuckerman on Civil Procedure (now in its 3rd ed, 2013), which has been cited at all levels of the English courts and elsewhere in the common law world. He lectures and supervises research students at Oxford University and is Editor in Chief of the Civil Justice Quarterly. He is General Editor of this work. Stefanie Wilkins BEng(Civil)(Hons) LLB(Hons) Adel BCL(Dist) Oxon GDLP, was admitted as a Barrister and Solicitor in South Australia and practised in litigation for several years at a leading Australian firm. She has also been called to the bar of England and Wales. She has authored the following chapters: •

Chapter 3 – The Right to a Fair Trial

•

Chapter 4 – Commencement of Proceedings

•

Chapter 5 – Service

•

Chapter 6 – Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

•

Chapter 26 – Finality of Litigation

•

Chapter 27 – Obtaining Protection from Costs by an Offer to Settle

•

Chapter 28 – Costs (with Charles Rae)

Jonathan Adamopoulos BSoSc(Dist) LLB(Hons) UWS BCL(Dist) Oxon GDLP, was admitted as a Lawyer in New South Wales, and practises at a leading Australian law firm in the areas of intellectual property, construction,employment and safety, and commercial litigation. He is also a sessional lecturer in law at Western Sydney University. He has authored the following chapters: •

Chapter 14 – Discontinuance, Withdrawal and Stay of Proceedings

•

Chapter 15 – Discovery, Interrogation and Inspection

•

Chapter 17 – Without Prejudice Privilege

•

Chapter 24 – Enforcement and Contempt

•

Chapter 29 – Settlement and Alternative Dispute Resolution

Andrew Higgins BA LLB(Hons) Melb BCL(Dist) DPhil Oxon, is an Associate Professor of Civil Procedure at the University of Oxford and a Fellow at Mansfield College, Oxford. He is also a Senior Fellow at Melbourne Law School, admitted as a Barrister in Victoria, and the General Editor of the Civil Justice Quarterly. He has authored the following chapters: •

Chapter 13 – Joinder and Collective Redress

•

Chapter 16 – Legal Professional Privilege

•

Chapter 18 – The Privilege Against Self-Incrimination

•

Chapter 19 – Public Interest Immunity

Page 2 of 2 About the Authors Stephanie Hooper BIntBus LLB(Hons) Griffith BCL(Dist) Oxon, is a Barrister in Victoria, and practises in the areas of commercial and public law.She has authored the following chapters: •

Chapter 8 – The Application Procedure

•

Chapter 12 – Specialist Lists and Procedural Tracks

•

Chapter 20 – Witness Statements and Affidavits

•

Chapter 22 – Trial and Evidence

•

Chapter 23 – Judgments and Orders

Alexander Vial BCom BBus(ComLaw) UniSA LLB(Hons) Adel BCL Oxon GDLP, is admitted as a Barrister and Solicitor in South Australia, and practises in competition and consumer law including in litigation at a leading Australian law firm in Sydney. He has authored the following chapters: •

Chapter 1 – The Overriding Objective of Australian Civil Procedure

•

Chapter 9 – Disposal Without Trial

•

Chapter 11 – Court Management and Party Compliance

•

Chapter 21 – Experts

Ian Ranson BSc(CompSci) LLB(Hons) Monash BCL Oxon, is admitted as a Solicitor in Victoria, and is currently an associate at a leading law firm in London. He has authored the following chapters: •

Chapter 2 – The Australian Court System and its Effect on Civil Justice

•

Chapter 7 – Pleadings: Defining the Controversy

Naomi Oreb BA(Hons) LLB(Hons) Syd BCL(Dist) Oxon, is a Barrister in New South Wales. She has authored Chapter 10 – Interim Remedies: Injunctions,Freezing Orders, Security for Costs and Interim Payments. Claire Jago BEc LLB(Hons) GDLP Tas BCL(Dist) Oxon, is admitted to legal practice in Tasmania. She has authored Chapter 25 – Appeals. Charles Rae BA LLB(Hons) Tas BCL(Dist) Oxon, is admitted as a Barrister and Solicitor in South Australia, and is currently as an associate at leading law firm in London. He has authored Chapter 28 – Costs (with Stefanie Wilkins).

End of Document

Table of Contents Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Table of Contents

Table of Contents About the Authors

v

Preface

xvii

Acknowledgments

xix

Table of Cases

xxi

Table of Statutes

Chapter 1: The Overriding Objective of Australian Civil Procedure

lxxxv

1

Introduction

1

Defects of the Old System

4

Key procedural reforms

13

The overriding objective in Australia

16

Understanding the overriding objective

21

Court control — adapting process to dispute

34

The implications of proportionality for case management

37

The parties’ duty to cooperate

40

Court rules affecting the law of evidence

43

Chapter 2: The Australian Court System and its Effect on Civil Justice

45

Introduction

45

The structure of the Australian civil justice system

45

Jurisdiction of the Australian courts

56

The Australian civil courts in context

74

Chapter 3: The Right to a Fair Trial

83

Page 2 of 11 Table of Contents Introduction

83

The right to a fair trial and the Australian Constitution

83

The right to an independent and impartial tribunal

92

The principle of publicity and the right to a public hearing

100

The right to be heard

108

The right to a reasoned decision

115

The right of access to evidence

119

The right of access to justice

126

Equality before the law?

133

Legal representation

135

Chapter 4: Commencement of Proceedings

139

Introduction

139

Prior to commencement — overview

140

Pre-commencement obligations

141

Jurisdiction of commencement

146

Australian originating processes — a diversity of approaches

150

Australian originating processes — the formalities

153

Secondary claims — overview

167

Secondary claims in each jurisdiction

169

Chapter 5: Service

177

Introduction

177

Conceptual distinction between service and notification

183

Personal service

186

Methods of ordinary service

187

Address for, and object of, service

189

Service by an alternative method

190

Service on particular defendants

194

Page 3 of 11 Table of Contents Service by agreed method

199

Deemed service

200

Extending the period for service of the originating process

201

Service out of the jurisdiction

213

Service within Australia, but outside the jurisdiction in which proceedings were commenced

215

Service outside Australia

216

Chapter 6: Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

231

Introduction

231

Defendant’s initial document in response where the proceedings are contested

232

Submitting to judgment

238

Objecting to jurisdiction or service

239

Conditional appearances

244

Chapter 7: Pleadings: Defining the Controversy

247

Introduction

247

Statements of claim

252

Defence

262

Counterclaims and third party claims

264

Reply and further pleadings

266

Pleadings by jurisdiction

267

Amendment of pleadings

286

Striking out pleadings

295

Verification of pleadings

297

The future of pleadings

300

Chapter 8: The Application Procedure

305

Introduction

305

Applications with notice

307

Page 4 of 11 Table of Contents Applications without notice

Chapter 9: Disposal Without Trial

309

315

Introduction

315

Default judgment

317

Setting aside a default judgment

326

Judgment against plaintiff for want of prosecution

333

Striking out statement of case as disclosing no reasonable claim or defence

336

Summary judgment

336

Chapter 10: Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

349

Range of interim remedies

349

Nature and justification of interim injunctive relief

351

Principles governing the grant of interim injunctions

354

Undertaking as to damages

376

Ex parte interim injunctions

384

Discharge, variation and appeals

388

Freezing orders

390

Security for costs

408

Interim payment

424

Chapter 11: Court Management and Party Compliance

429

Introduction

429

Case management, party autonomy and the adversarial system

432

Managerial judges and the adversary system

440

The Old System approach to non-compliance — a normative deficit

442

Justice is either managed or mismanaged

443

Procedural judges

444

Case management and the overriding objective

444

Page 5 of 11 Table of Contents Consequences of failure to comply with process requirements

447

Relief from sanctions

450

Proportionality and discretion in enforcing rules and orders

453

Relief from the consequences of consent orders

455

Contempt inappropriate for punishing procedural default

457

Abuse of process

460

Self-represented litigants

465

Costs consequences of non-compliance

467

Chapter 12: Specialist Lists and Procedural Tracks

469

Introduction

469

Specialist vs generalist courts

470

Specialisation within general courts

472

Chapter 13: Joinder and Collective Redress

479

Introduction

479

Joinder

479

Collective redress procedures

492

Potential abuses of the system

510

Chapter 14: Discontinuance, Withdrawal and Stay of Proceedings

517

Discontinuance

517

Withdrawal

523

Stay of proceedings

526

Chapter 15: Discovery, Interrogation and Inspection

547

Introduction and context

547

Discovery and inspection

551

Electronic discovery

578

Page 6 of 11 Table of Contents Interrogatories

582

Depositions and pre-trial oral examination

590

Preliminary discovery

592

Production from third parties

602

Notices to produce prior to hearing

615

Subsequent use of disclosed information

616

Protected confidences

623

Notices to admit

633

Inspection of property

635

Alternative sources of information

636

Search orders

639

Chapter 16: Legal Professional Privilege

659

Introduction

659

The basis for protection

665

Boundaries of legal professional privilege

673

Loss of privilege — waiver

704

Waiver in the course of litigation

708

Chapter 17: Without Prejudice Privilege

713

The general rule

713

The rationale for the privilege

716

The scope of the privilege

719

Invoking ‘without prejudice’ protection

728

Waiver

730

Exceptions

731

Matrimonial causes and estranged spouses

742

Court-annexed dispute resolution

743

Page 7 of 11 Table of Contents Chapter 18: The Privilege against Self-Incrimination

745

General implications of the privilege in civil proceedings

745

Rationale

748

Application to corporations

748

Basis of the claim

749

Privilege limited to answering questions or producing documents that may incriminate

750

Statutory abrogation and codification

752

Application of the privilege to disclosure and production of documents

755

Conduct in the same proceedings in which privilege is claimed

759

Chapter 19: Public Interest Immunity

761

The general rule

761

Identification of the protected interest

764

Likelihood of injury to the public interest

769

The likelihood of harm to the party seeking disclosure and to the administration of justice

770

The final balancing exercise

771

Procedure for claiming PII

772

Waiver of a PII claim

775

Public interest immunity, closed material proceedings and procedural fairness

776

Chapter 20: Witness Statements and Affidavits

787

Introduction

787

Witness statements, witness outlines and affidavits

791

The rules

794

Order in which statements are to be served

804

Changes to witness statements

805

Failure to serve witness statement

805

Use of witness statements at the trial

806

Restriction on other uses of witness statements

808

Page 8 of 11 Table of Contents

Chapter 21: Experts

811

Expert evidence

811

The models of expert evidence

830

The risks of adversarial and professional bias

837

Expert’s immunity from civil proceedings

840

Assessors

844

Chapter 22: Trial and Evidence

847

Introduction

847

Trial arrangements

849

The conduct of the trial

854

Burden and standard of proof

856

Admissibility

868

Judicial notice — dispensing with proof of common knowledge

872

Witnesses

873

Failure to attend trial

880

Chapter 23: Judgments and Orders

885

Introduction

885

Types of judgments and orders

888

Pronouncing and entering judgment

891

Correcting, varying or setting aside a judgment

895

Finality of judgments

898

Judgments and orders by consent

901

Court’s power to hand down judgment against the parties’ wishes

903

Pre- and post-judgment interest

905

Chapter 24: Enforcement and Contempt

909

Page 9 of 11 Table of Contents Introduction

909

Stays of execution

911

Execution

914

Enforcement of money judgments

917

Writ of possession

938

Writ of delivery

939

Substituted performance

939

Contempt of court

939

Sequestration

948

Interstate judgments

949

Foreign judgments

949

Chapter 25: Appeals

955

Introduction

955

Deference to first instance factual findings

957

Types of appeals

959

Routes of appeal

964

Process for instituting an appeal

971

Process for responding to an appeal

978

Concluding an appeal

978

Stay of execution pending appeal

979

Applications for new trials

981

Appeal to the High Court of Australia

984

Process for instituting and responding to an appeal in the High Court

990

Chapter 26: Finality of Litigation

991

Introduction

991

The limitation bar to the commencement of proceedings

993

Relitigation estoppels and abuse of process — introduction

1013

Page 10 of 11 Table of Contents Cause of action estoppel

1021

Issue estoppel

1024

Anshun estoppel

1026

General rules concerning the relitigation estoppels

1031

Abuse of process

1036

Disallowing collateral attack

1039

Foreign judgments

1043

Chapter 27: Obtaining Protection from Costs by an Offer to Settle

1047

Introduction

1047

Payments into court

1051

Calderbank offer

1052

Offers to settle under the rules

1062

Costs consequences of accepting an offer under the rules

1073

Costs consequences of non-acceptance of an offer under the rules

1074

The difference between Calderbank offers, and offers under the rules

1083

Comparing an offer with a judgment

1084

Prohibition on disclosure of an offer to settle prior to judgment

1085

Conclusion

1087

Chapter 28: Costs

1089

Basic concepts

1089

The principle that the successful party recovers its costs

1104

Criteria of assessment

1120

The reasonableness criteria

1134

Grounds for special costs order

1144

Procedure for assessing costs

1147

Fixed or lump sum costs

1158

Costs recovery under funding arrangements — introduction

1159

Page 11 of 11 Table of Contents Costs orders for and against non-parties

1167

Pre-emptive costs orders

1174

Litigant in person

1179

Wasted costs orders

1184

Solicitor and own client costs

1203

Chapter 29: Settlement and Alternative Dispute Resolution

1211

Introduction

1211

Mediation

1213

Arbitration

1221

Court-annexed ADR

1233

Index

End of Document

1239

Preface Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Preface

Preface The litigation process is essentially simple. There are two broad stages: first, information exchange, and secondly, a court hearing. The former begins with the exchange of allegations designed to identify the matters in controversy. This is followed by disclosure of all relevant documents, and then by exchange of expert reports and witness statements, if the parties propose to rely on such. Finally, the parties exchange their legal arguments. Once the stage of information exchange, known as pre-trial, has been completed, the court will hold a trial at which the parties may present their respective cases, after which the court will deliver judgment. Notwithstanding this simple structure, court litigation may involve protracted and complex procedural disputes for a variety of reasons. The issues might be unclear; a party may have encountered difficulty in fulfilling the procedural requirements(due to unavoidable causes or neglect); the opponent might be uncooperative, non-compliant or downright obstructive; or the court may have mismanaged the timetable. The rules seek to provide for some such occurrences but they cannot supply ready-made solutions for all eventualities. Even where the rules indicate the consequences of procedural defaults, such as the failure to attend a hearing, these may not be just in all circumstances. As a result, the rules are supplemented by judicial discretion,which is in turn guided by general principles that assist the court to find case-based solutions. Like its English counterpart, Zuckerman on Civil Procedure, the present work follows a principle-based approach to civil procedure. Otherwise, the Australian book is entirely about Australian law. Indeed, the present work deals with matters that are unique to the Australian civil litigation landscape, such as the federal system of civil justice and the Australian constitutional framework, as well as matters not addressed in the English text, such as ADR.Where Australian and English law face common problems, attention is drawn to differences in approach in order to illuminate the issues. The book has two objectives. First, to present an accessible account of the rules in the various Australian jurisdictions,and of the way in which the courts exercise their powers under the rules. Secondly, to draw attention to possible difficulties and to offer solutions in order to enable practitioners and students to tackle tricky situations that may arise in the course of litigation by arguing cases from first principles. Each chapter starts with an explanation of the relevant process and its underlying principles, followed by an exposition of how the particular process is dealt with in different jurisdictions. Some rules do not require elaborate explanation,except for drawing attention here and there to uncertainties of operation and to authoritative interpretation of particular aspects. Others call for more thorough discussion on account of their complexity, such as interlocutory injunctions or legal professional privilege. The book focuses attention on the rules of the Supreme Court in each jurisdiction, and the Federal Court, although occasional reference is made to the rules of other courts in the hierarchy. An important theme running throughout the work is the overriding, or overarching objective, which requires the court to ensure that litigation is conducted in an efficient, proportionate and economic manner. The work explains the many implications of the overriding objective and its impact on the exercise of judicial discretion, especially in discharging the court’s case management responsibilities. The outcome of the exercise of discretion can have far-reaching consequences in the litigation process and, in particular, on costs. Accordingly, to be able to help their clients, legal representatives need to be familiar with the judicial approach to the exercise of discretionary powers in a variety of contexts. Such understanding is vital whenever a party is seeking an extension of time to meet a deadline, or relief from sanctions (or any other kind of indulgence in the performance of process requirements), whenever a litigant applies for an interim remedy, and whenever a litigant addresses an argument about costs, to mention but a few. The work illuminates the judicial thinking that has evolved in relation to discrete aspects of litigation and draws attention to developing patterns of decision-making.

Page 2 of 2 Preface

It is not the purpose of the work to supplant time-honoured loose-leaf manuals of civil litigation. Practitioners and students will still need to refer to such works on matters of detail pertaining to particular jurisdictions, or to learn which court forms are required for particular applications. Rather, the present work is intended to supplement such manuals by providing not only a clear explanation of the rules and the principles governing their application, but also of the rationale for and unifying themes behind the rules, and the courts’ procedural powers more generally. The work aims to give practitioners and students a deeper and more meaningful understanding of civil procedure and its significance in the Australian adversarial system. Finally, this book is the product of teamwork by a number of authors, each of whom is an expert in Australian civil procedure. Each of the authors studied the subject Principles of Civil Procedure for the BCL degree in Oxford, and each has practised in Australia or lectures at an Australian university, or is otherwise engaged in procedural research. We all share the belief that the civil justice system provides an essential public service designed to maintain the rule of law by upholding rights and thereby promoting economic and social welfare in society. This, we hold, cannot be achieved by merely knowing the rules of procedure. It is also necessary to appreciate how the rules should be applied and how discretion should be exercised so as to maximise the benefits to society at large as well as to provide justice to individual litigants. Each author has taken responsibility for the chapters for which they have been credited with authorship. Draft chapters were reviewed by me, and other team members commented and sought to ensure consistency of content, format and style. Adrian Zuckerman April 2018

End of Document

Acknowledgments Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Acknowledgments

Acknowledgments In the preparation of this work, we have received invaluable assistance from many whose contribution should be acknowledged and duly recorded. We are grateful for the assistance provided by Nicolas Kyriakides in overseeing aspects of the development of the work, as well as Dr Benjamin Spagnolo for providing his invaluable comments on some parts of the work. The authors would like to express their gratitude for the assistance provided by Annabel Adair who worked tirelessly to review and edit drafts and proofs of the work prior to publication. Special thanks are also due to Jocelyn Holmes, the commissioning editor, who has overseen the progress and development of this work from its inception through to publication, and who has provided much support and encouragement.

End of Document

Table of Cases Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Table of Cases

Table of Cases References are to paragraph numbers

1165 Stud Road v Power (No 2) [2015] VSC 735  28.287 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407  22.108 789ten Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594  17.27, 29.13

A A v A (Ancillary relief) B v B (Ancillary relief) [2000] 1 FLR 701  15.192 — v C [1980] 2 All ER 347; [1980] 2 Lloyd’s Rep 200  10.96, 10.117 — v Hayden (No 2) (1984) 156 CLR 532  3.65, 19.40 A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27  28.55, 28.58 A M & S Europe Ltd v Commission of the European Communities Case 155/79 [1983] QB 878; [1983] 1 All ER 705  16.16 A Pty Ltd v Z [2007] NSWSC 999  15.159 AB v CD [2014] EWCA Civ 229  10.50 — v John Wyeth and Brothers Ltd [1997] PIQR P385  14.47 AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63  10.45 Abdin Daver, The [1984] AC 398  14.71 Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104; 65 ALR 247  19.1, 19.15 Abraham v Thompson [1997] 4 All ER 362  14.47 Abu Dhabi Gas Liquefaction Co Ltd v Eastern Bechtel Corp [1982] 2 Lloyd’s Rep 425  29.40 Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412  18.1, 18.9, 18.10, 18.12 ACES Sogutlu Holdings Pty Ltd, Re [2014] NSWSC 140  24.11 ACJ & ME Copini & Sons v Skopalj (1985) 42 SASR 100  28.253, 28.255, 28.288

Page 2 of 128 Table of Cases

ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd), Re [2008] FCA 964  16.82 ACN 008 664 257 Pty Ltd v HIH Casualty and General Insurance Ltd (in liq) [2005] NSWSC 881  15.163 ACOHS Pty Ltd v Ucorp Pty Ltd (2006) 155 FCR 181; [2006] FCA 1279  10.162 — v — [2009] FCA 577  9.13 ACQ v Cook (No 2) [2008] NSWCA 306  28.62, 28.64 Actrol Parts Pty Ltd v Coppi [2015] VSC 758  11.61 Adam v Fisher (1914) 30 TLR 288  15.214 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39  10.93, 26.116 Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486  15.238 Adams v Canon (1621) Ley’s KB Rep 68; 73 ER 117  21.5 — v Cape Industries plc [1991] 1 All ER 929  24.97 — v Dickeson [1974] VR 77  15.102, 15.114 — v Kennedy [2001] NSWCA 7  28.107 Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518  15.239, 15.241 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360; [1998] FCA 144  16.109 Adelson v Anderson [2011] EWHC 2497  14.33, 14.48 Adlam v Noack [1999] FCA 1606  17.48 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353  26.84 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41  5.113, 6.45, 6.46, 6.47, 6.48, 6.49 Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26  15.214, 15.216, 15.130, 15.140 AGL Energy Ltd v Hardy [2017] FCA 420  15.260, 24.84 — v — (No 2) [2017] FCA 863  24.89 Agricultural & Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67  5.96, 5.98, 5.102, 5.111, 6.40, 6.61 Agro Co of Canada Ltd v The “Regal Scout” (1983) 148 DLR (3d) 412  3.116 Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; [2003] VSCA 6  7.71, 7.73 — v — [2005] HCA 38  7.71

Page 3 of 128 Table of Cases

Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26  24.29 AHK v Secretary of State for the Home Department [2013] EWHC 1426  19.63 Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676  26.59 Ainslie v Ainslie (1927) 39 CLR 381  24.96, 24.98 Ainsworth v Hanrahan (1991) 25 NSWLR 155  5.181 Ainsworth v Wilding [1900] 2 Ch 315  16.30 Air Canada v Secretary for State for Trade [1983] 2 AC 394  15.166 — v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 1 All ER 910  11.19 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; 33 ALR 578; [1981] HCA 75  8.31, 10.64, 10.73, 10.74, 10.75 Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251  7.71 Aird v Prime Meridian [2006] EWCA Civ 1866; [2007] CP Rep 18  17.32 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; [1999] NSWSC 996  29.16, 29.19, 29.20, 29.21 AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8  3.85 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418  3.116 Akins v Abigroup Ltd (1998) 43 NSWLR 539; [1998] NSWSC 254  20.5 Akzo Nobel Chemicals Ltd v Commission of the European Communities [2007] 4 CMLR 23  16.34 Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063  15.14 Aldi Stores v WSP Group plc [2008] 1 WLR 748; [2007] EWCA Civ 1260  7.23 Aldous v New South Wales [2014] NSWCA 280  9.82 Alexander v Ajax Insurance Co Ltd [1956] VLR 436  9.40 — v Cambridge Credit Corporation Ltd (rec apptd) (1985) 10 ACLR 42  24.7, 24.8, 24.9 — v Crawford [2003] NSWSC 426  24.82 Alford v Ebbage [2003] 1 Qd R 343  11.63 Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise (No 2) [1972] 2 QB 102  16.34 — v — (No 2) [1974] AC 405; [1973] 2 All ER 1169  15.199, 19.11, 19.12, 19.28, 19.42 Alfred Dunhill Ltd v Sunoptic SA [1979] FSR 337  10.17

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Ali and Fahd Stobokski Group Ltd v Moneim [1989] 1 WLR 710  15.250 Alister v R (1983) 154 CLR 404; 50 ALR 41  15.166, 19.3, 19.21, 19.31, 19.34, 19.59 — v — (1984) 154 CLR 469; 51 ALR 480; [1984] HCA 85  19.21, 19.34 Aljade & MKIC v OCBC [2004] VSC 351  27.9, 27.42 Allen v Chadwick (No 2) [2014] SASCFC 130  27.87 Allesch v Maunz (2003) 203 CLR 172; [2000] HCA 40  9.45, 25.11, 25.15 Alliance Building Society v Austen [1951] 2 All ER 1068  24.70 Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290  15.102, 15.107 Alliance Petroleum Australia NL v Australian Gas Light Co (1982) 44 ALR 124  15.170 Allonnor Pty Ltd v Doran [1998] QCA 372  7.74, 7.75 Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354  15.134 Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73  21.5, 21.7 — v — (No 6) (1996) 64 FCR 79  21.15 — v — (No 13) (FCA, Lockhart, Lindgren and Tamberlin JJ, 17 August 1995, unreported)  28.31 Alomes v Piggott, Wood & Baker (a firm) (2000) 9 Tas R 412  13.18 Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd’s Rep 221, CA  9.44, 9.54 Al Rawi v Security Service [2010] EWCA Civ 482  11.19 — v — [2011] UKSC 34  19.50, 19.57, 19.58, 19.60 Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210  25.34 Alsop Wilkinson (a firm) v Neary [1995] 1 All ER 431; [1996] 1 WLR 1220  28.227 Alstom Ltd v Liberty Mutual Insurance Co Ltd [2010] FCA 588  15.44 — v Sirakas [2010] NSWSC 669  6.40, 6.41 — v Yokogawa Australia Pty Ltd (No 9) [2012] SASC 163  28.109, 28.132 Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 3) [2009] SASC 100  17.25 Alterskye v Scott [1948] 1 All ER 469  15.182 Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164  7.16, 7.74

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Amaca Pty Ltd (formerly James Hardie and Co Pty Ltd) v Patricia Margaret Hannell As Executor of the Estate of David Richard Hannell (Dec) [2007] WASCA 158  28.69, 28.72 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419  23.55 Amalia Investments Ltd v Virgtel Global Networks NV [2011] FCA 409  28.31 AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63  26.16, 26.17, 26.57 American Cyanamid Co v Ethicon Ltd [1974] FSR 312  10.33, 10.35 — v — [1975] AC 396; [1975] 1 All ER 504  10.25, 10.34, 10.35, 10.36, 10.37, 10.38, 10.39, 10.55 American Flange v Rheem Australia [1963] NSWR 1121  7.20 American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193  15.108 American Hospital Supply Corp v Hospital Products Ltd 780 F 2d 589 (7th Cir 1986)  10.52, 10.53 AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486  27.23, 27.25 Ammerlaan v Distillers Co (Bio-chemicals) Ltd (1992) 58 SASR 164  15.201 Amos v Monsour Legal Costs Pty Ltd [2008] Qd R 304  28.116, 28.123, 28.124, 28.129, 28.139 — v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65  28.104, 28.139 AMP Services Ltd v Manning (No 3) [2007] FCA 510  28.55 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405  16.86, 16.102 Ampthill Peerage, The [1977] AC 547  23.39 Anderson v Bank of British Columbia (1876) 2 Ch D 644  16.13, 20.2 — v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20; [1965] HCA 61  2.18 — v Liddell (1968) 117 CLR 36  24.33 — v McPherson [2012] WASC 19  27.108 Andersons Solicitors v Schigulski (2004) 88 SASR 1; [2004] SASC 21  24.59 Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700; 17 ACSR 231  26.131 — v Raeburn (1874) LR 9 Ch App 522  3.65 Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184  24.8, 24.9 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200  15.68 Angeleska v Victoria [2013] VSC 598  26.27

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Angelic Grace, The [1995] 1 Lloyd’s Rep 87  5.169 Angell v P North Consultants Pty Ltd (2007) 21 NTLR 1  25.67 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd  28.76 Anglo-Eastern Trust Ltd v Kermanshahchi [2002] EWHC 3152; [2002] All ER 135  11.49 Anglo-Italian Bank v Wells (1878) 38 LT 197  9.80 Anglo-Italian Holdings Pty Ltd v Varallo (2005) 12 VR 257  28.134 Anlaby v Praetorius (1888) 20 QBD 764  9.40 Ann Street Mezzanine Pty Ltd (in liq) v Beck (2009) 175 FCR 532  14.56 Annesley v Westpac Banking Corporation [2016] VSC 323  6.52 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57  3.70, 19.47 Annot Lyle, The [1886] 11 PD 114  24.7 ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875  24.93 Ansett Australia Ltd (No 3), Re (2002) 115 FCR 409; [2002] FCA 90  28.227 Anton Piller KG v Manufacturing Processes [1976] Ch 55; [1976] 1 All ER 779  3.96, 15.232, 15.235, 15.236, 15.237, 15.238, 15.239 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27  1.8, 1.14, 1.39, 1.57, 1.58, 1.87, 1.96, 2.21, 2.61, 5.90, 7.6, 7.68, 7.69, 7.78, 9.5, 9.20, 9.48, 11.8, 11.34, 11.56, 14.22, 14.38, 14.56, 16.72, 20.65, 20.69, 22.12 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) (2013) 45 WAR 379; [2013] WASCA 213  9.83 Apache Northwest Pty Ltd v Western Power Corp (1998) 19 WAR 350  15.160, 15.171 Apollo 169 Management Pty Ltd v Pinefield Nominees Pty Ltd (No 2) [2010] VSC 475  28.277 Apotex Pty Ltd v Les Laboratoires Servier (No 5) [2011] FCA 1282  17.51 Apple Corps v Lingasong [1977] FSR 345  10.55 Apple Inc v Samsung Electronics Co Ltd [2011] HCATrans 341  10.38, 10.41 Application for Grant of Presumption of Death, Re; Ex parte Jenkins [2008] WASC 49  22.61 Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247  26.87 Application under the Major Crime (Investigative Powers) Act 2004, Re (2009) 24 VR 415; [2009] VSC 381  18.23 Aquaqueen International Pty Ltd, Re [2016] NSWSC 508  24.63

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Aquatown Pty Ltd v Holder Stroud Pty (1995) 18 ACSR 622; [1995] FCA 1667  10.164 Arab Monetary Fund v Hashim [1989] 1 WLR 565  3.79 Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181; [1998] 1 WLR 1426  1.71, 14.33, 14.44 Archer Capital 4A Pty Ltd v Sage Group Plc (No 3) (2013) 306 ALR 414; [2013] FCA 1160  15.42 — v — (No 2) (2013) 306 ALR 384; [2013] FCA 1098  16.36 Argyropoulos v Layton [2002] NSWCA 183  26.22 Aristocrat Technologies Pty Ltd v Global Gaming Pty Ltd [2006] FCA 1707  15.274 Aristocrat Technology Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862  15.240, 15.274, 15.275 Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573; [2008] FCA 592  24.97, 26.141, 26.144, 26.145 Armat v Little; Ex parte Little [1909] St R Qd 83  21.13 Armitage v Nurse [1998] Ch 241; [1997] EWCA Civ 1279; [1997] 2 All ER 705  7.22 Armour v Bate [1891] 2 QB 233  22.105, 22.113 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348; [2012] NSWCA 430  1.58 — v — [2012] NSWSC 393  1.58, 15.23, 15.24 Armstrong World Industries (Australia) Pty Ltd v Parma (2014) 101 ACSR 150; [2014] FCA 743  10.62 Arnold v Martyr [1974] Qd R 206  24.14 Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 3 All ER 41  26.91, 26.98, 26.99 Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48  25.66, 25.67 Arrow Nominees Inc v Blackledge [2000] All ER (D) 854  14.66 Arrow Trading Investments v Edwardian Group [2004] EWHC 1319; [2005] 1 BCLC 696  16.94 Arsenal Football Club Plc v Elite Sports Distribution Ltd [2003] 07 LS Gaz R 36  15.145 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104  5.89, 5.95, 5.97, 5.99, 5.103, 5.105, 6.43, 11.3, 11.40, 11.41 Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673  3.102, 21.98, 21.100, 26.63, 26.135, 26.137 Artibell Shipping Co Ltd v Markel International Insurance Co Ltd [2008] EWHC 811  14.33 ARX v Comptroller of Income Tax [2016] SGCA 56  16.113

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Asciak v Australian Secured & Managed Pty Ltd [2008] FCA 753  17.55 Ashburton v Pape [1913] 2 Ch 469  16.115 Ashby v Commonwealth (No 2) (2012) 203 FCR 440; [2012] FCA 766  15.217 — v — (No 4) (2012) 209 FCR 65; [2012] FCA 1411  7.79, 14.44, 14.52 — v Slipper (2014) 219 FCR 322; [2014] FCAFC 15  14.25, 14.30, 14.44, 14.51, 14.52, 14.53, 14.54, 25.69 Ashfield Municipal Council v Armstrong [2002] NSWCA 269  22.53 Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012] NSWSC 545  29.50 — v — [2012] NSWSC 1306  29.49 Ashmore v British Coal Corpn [1990] 2 All ER 981  14.56 Ashton v Pratt [2010] NSWSC 1376  15.21 Ashworth v McKay Foods Ltd [1996] 1 All ER 705  14.37 Ashworth Hospital Authority v MGN [2001] 1 All ER 991  15.213 — v MGN Ltd [2002] 4 All ER 193; [2002] UKHL 29  15.125, 15.126 Aspar Autobarn Coordinator Society v Dovala Pty Ltd (1987) 16 FCR 284  15.108, 15.110 Aspermont Ltd v Lechmere Financial Corporation (2002) 27 WAR 1; [2002] WASCA 52  10.137 Assaf v Skalkos [2000] NSWSC 935  27.27 Assessor for Lothian Region v Wilson (1979) SC 341  21.34 Assicurazioni Generali Spa v Arab Insurance Group (BSC) [2002] EWCA Civ 1642; [2003] 1 WLR 577  25.8 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7  3.24, 3.65, 3.69, 19.44, 19.45, 19.46, 19.47, 19.48, 19.49, 19.50 , 19.51, 19.59 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 2  15.106 Astra Zeneca AB v Medis Pharma Pty Ltd [2014] FCA 549  3.79 Astro Exito Navegacion SA v Southland Enterprise Co Ltd, The Messiniaki Tolmi [1982] QB 1248; [1982] 3 All ER 335  10.19 AT & T Istel Ltd v Tully [1993] AC 45; [1992] 3 All ER 523  18.3, 18.15, 18.31 Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377  24.50 Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10  28.241, 28.242, 28.248 Atsas v Gertsch (NSWSC, Hodgson CJ in Eq, 28 July 1998, unreported)  26.121

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Attorney-General v Albany Hotel Co [1896] 2 Ch 696  10.64 — v Barker [1990] 3 All ER 257  10.35 — v Chan [2011] NSWSC 1315  16.60 — v Ebert [2001] EWHC Admin 695; [2002] 2 All ER 789  3.122 — v Hallett (1847) 16 M & W 569; 153 ER 1316  10.47 — v Leveller Magazine Ltd [1979] AC 440  24.75 — v Newspaper Publishing plc [1992] 1 AC 191  24.73, 24.74, 24.79 — v Punch Ltd [2003] 1 AC 1046; [2003] 1 All ER 289  10.79 — v Times Newspapers Ltd [1992] 1 AC 191  10.79 Attorney-General (Gibraltar) v May [1999] 1 WLR 998  18.6 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667  19.2, 19.33, 19.38 — v XY [2014] NSWCA 466  25.22 Attorney-General (NT) v Kearney (1985) 158 CLR 510  16.35, 16.79 — v Maurice (1986) 161 CLR 475; 69 ALR 31  16.6, 16.11, 16.99 Attorney-General (SA) v Kowalski [2015] SASC 123  26.118 Attorney-General (UK) v Barker [2000] 2 FCR 1; [2000] EWHC 453  14.31, 14.38 — v Heinemann Publishers Australia Pty Ltd (Spycatcher case) (1988) 165 CLR 30; [1988] HCA 25  2.34 — v Times Newspapers Ltd [1973] 1 All ER 815  24.80 — v — [1974] AC 273  24.80, 24.87 Attorney-General (Vic) v Lindsey [2005] VSC 53  8.33 — v Wallace (1982) 65 FLR 15  18.40 Attorney-General (WA) v Lashansky [2014] WASC 42  5.53 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1; [2016] HCA 16  26.139 Auburn Council v Austin Australia Pty Ltd (in liq) [2007] NSWSC 130  14.74 Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749  15.68 Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795  15.107 Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd (in liq) [2014] FCA 1371  10.152

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Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411  17.35 Austrac Rail Pty Ltd v Hunter Premium Funding Ltd [2001] NSWSC 654  28.148 Austral Oil Estates Ltd (in liq), Re (1986) 7 NSWLR 440  5.116 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46  10.79, 24.73, 24.75, 24.84, 24.87 Australia and New Zealand Banking Corporation Ltd v S & Co [2014] NSWSC 1094  24.48 Australia and New Zealand Banking Group Ltd v Luck (1995) 4 Tas R 328  9.41 — v David (1991) 1 NTLR 93; 105 FLR 403  9.86 — v Londish [2012] NSWSC 809  14.23 Australian and New Zealand Savings Bank Ltd, Re; Mellas v Evriniadis [1972] VR 690  24.50 Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568  7.21 Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd [2015] FCA 1164  10.169, 10.170 Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; (2007) 61 ACSR 441; [2007] NSWCA 57  24.7, 24.10 — v Redrock Co Pty Ltd (2007) 213 FLR 450; [2007] NSWSC 966  14.45 Australian Broadcasting Commission v Parish (1980) 29 ALR 228; 43 FLR 129  3.62, 15.205 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63  10.8, 10.12, 10.43, 10.100 — v O’Neill (2006) 227 CLR 57; [2006] HCA 46  10.11, 10.23, 10.35, 10.39, 10.43, 10.58, 10.61, 10.93 Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25  10.94, 28.170, 28.176 Australian Commonwealth Shipping Board v The Federated Seamen’s Union of Australasia (1925) 36 CLR 442; [1925] HCA 27  3.14 Australian Communist Party v Commonwealth (1951) 83 CLR 1  21.20 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873; [2002] FCA 609  3.54, 3.55, 3.60 — v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2016] FCA 1437  24.89 — v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324; [2009] FCA 17  10.40, 10.41 — v ANZ Banking Group Ltd [2010] FCA 230  15.97, 15.98, 15.99, 15.102 — v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; 153 ALR 393  16.50, 16.74, 16.76, 16.86

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— v — [2003] FCAFC 149  16.55 — v — (No 3) [2002] FCA 1294  17.67 — v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32  16.6, 16.14 — v Construction, Forestry, Mining and Energy Union (CFMEU) [2007] FCA 1390  14.20, 14.22 — v FFE Building Services Pty Ltd [2003] FCA 1181  17.35 — v Get Qualified Australia Pty Ltd [2016] FCA 976  10.116 — v Halkalia Pty Ltd (No 3) [2017] FCA 522  24.88 — v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433  27.9, 27.41, 27.117 — v J McPhee & Son (Aust) Pty Ltd (No 2) (1997) 77 FCR 217; 148 ALR 601  18.1 — v Lux Pty Ltd [2003] FCA 843  21.47 — v Metcash Trading Ltd [2011] FCA 1079  10.58, 10.92 — v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137; [2011] FCA 938  6.41, 6.49 — v — (No 2) (2012) 287 ALR 760; [2012] FCA 44  16.76 — v — (No 4) (2012) 298 ALR 251; [2012] FCA 1323  6.41, 6.50 — v Real Estate Institute of Western Australia Inc [1999] FCA 18  23.48, 23.49 — v Shell Co of Australia Ltd (1999) 161 ALR 686  15.167 — v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762; [2007] FCA 444  16.76 Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137; [2011] FCA 938  19.13 — v Yellow Page Marketing BV (No 2) [2011] FCA 352  9.13 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21  10.79, 24.86, 24.93 Australian Crime Commission v Stewart (2012) 286 ALR 713; [2012] FCA 29  16.6 Australian Design Council v Borello (1989) 17 IPR 389  24.87 Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545  16.73, 16.115 Australian Federation of Islamic Councils Inc v Kassem [2017] NSWSC 206  10.17 Australian Football League v Hard On Sport Pty Ltd [2012] VSC 475  15.246, 15.250 Australian Gas Light v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317  23.19

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Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1) [2014] VSC 481  8.14 Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104  14.57 Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2) [1999] VSC 131  16.36 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia [2001] FCA 774  24.81 Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208  14.10 Australian Mortgage & Finance Company Pty Ltd v Rome Euro Windows Pty Ltd [2014] NSWSC 996  14.56 — v — [2014] NSWSC 1744  15.151 Australian Mortgage and Financial Company as trustee of the Melnikoff Family Trust v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust [2014] NSWSC 996  10.106 Australian Musical Distribution Pty Ltd v Whebell [1969] QWN 40  9.40 Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582; 6 ALR 433  19.1, 19.28 Australian National Car Parks Pty Ltd v New South Wales (2014) 287 FLR 448; [2014] NSWCA 298  15.123 Australian Oil Refining Co Ltd v Bourne (1980) 54 ALJR 192  21.20 Australian Pacific Airports (Melbourne) Pty Ltd v Nuance Group (Australia) Pty Ltd [2005] VSCA 133  29.18 Australian Property Custodian Holdings Ltd (in liq) (No 2) (2012) 93 ACSR 130; [2012] VSC 576  18.1 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319  13.23 Australian Rugby Union Ltd v Canterbury International (Australia) Pty Ltd (No 1) [2012] FCA 497  15.86, 15.88 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299; [2011] FCA 1057  16.3, 16.4, 16.5, 16.76 — v Cassimatis (No 4) [2015] FCA 465  3.59 — v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1  2.27, 2.38, 14.30 — v Endresz [2014] FCA 786  10.71 — v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201; [2009] FCA 1586  18.4 — v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 858  28.223, 28.225, 28.226 — v Healey [2011] FCA 717  22.64 — v Macdonald (No 5) [2008] NSWSC 1169  22.70 — v Matthews (1999) 17 ACLC 528  24.90

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— v Michalik (2004) 52 ACSR 115; [2004] NSWSC 1259  24.89 — v Mining Projects Group Ltd (2007) 164 FCR 32; [2007] FCA 1620  18.1 — v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; [2008] FCAFC 123  19.13 — v Rich (2005) 190 FLR 242; [2005] NSWSC 149  21.44 — v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62  10.105 — v Southcorp (2003) 46 ACSR 438  16.6, 16.60, 16.61, 16.62 — v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095  21.7 Australian Securities Commission v MacLeod (No 2) (1993) 40 FCR 461; [1993] FCA 132  23.23 — v Zarro (No 2) (1992) 34 FCR 427  19.38, 19.39, 19.60 Australian Securities Ltd v Western Australian Insurance Co Ltd (1929) 29 SR (NSW) 571  13.3 Australian Telecommunications Corporation v Barnes (1996) 125 FLR 335  25.19 Australia’s Residential Builder Pty Ltd (in liq) v Wiederstein [2014] VSC 430  15.239 Austress Freyssinet v Kowalski [2007] NSWSC 1105  24.22 Autodesk Inc v Dyason (No 2) [1993] HCA 6  23.33, 23.35, 23.36 Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86  25.60 AWA Ltd v Daniels (1992) 7 ACSR 463  17.26, 29.13 — v — (NSWSC, 18 March 1992, unreported)  17.26, 17.28 AWB Ltd v Cole (2006) 152 FCR 382; 232 ALR 743; [2006] FCA 571  16.6, 16.39, 16.55 — v — (No 5) (2006) 155 FCR 30; 234 ALR 651; [2006] FCA 1234  16.6, 16.40, 16.42, 16.48, 16.54, 16.61, 16.73, 16.79, 16.81 Axon v Axon (1937) 59 CLR 395; [1937] HCA 80…. 22.61 Aydin v Australian Iron & Steel Pty Ltd [1984] 3 NSWLR 684  16.55 Azzi v Volvo Car Australia Pty Ltd (Costs) (2007) 71 NSWLR 140; [2007] NSWSC 375  17.85, 27.26 Azzopardi v R (2001) 205 CLR 50; 179 ALR 349; [2001] HCA 25  18.7

B B v Auckland District Law Society [2003] UKPC 38  16.105 B v B [1971] 1 All ER 801  15.42

Page 14 of 128 Table of Cases

B v John Wyeth & Brother Ltd [1992] 1 WLR 168  16.72 B & P Falcinella Pty Ltd v Hamilton [2015] SASCFC 5  7.71 Babanaft International Co SA v Bassatne [1990] Ch 13  10.132 Babcock and Brown Pty Ltd v Andersen [2010] QSC 287  5.95, 5.97, 5.99, 5.106, 5.109, 5.111, 6.40 Baber v Kenwood Manufacturing Co Ltd (1978) 1 LLR 179  29.31 Badgin Nominees Pty Ltd v Oneida Ltd [1998] VSC 188  29.32 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61  7.5 Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Co [2000] 1 Lloyd’s Rep 1  5.162 Bagley v Pinebelt Pty Ltd [2000] NSWSC 655  28.275 Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476  15.256 Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136; [2001] FCA 60  15.166 — v — [2001] FCA 185  17.3, 17.6, 17.33 — v Department of Land and Water Conservation [2009] NSWCA 100  16.6 — v Director-General, Dept of Land and Water Conservation [2009] NSWCA 100  15.104 — v Federal Commissioner of Taxation (1977) 136 CLR 214; [1977] HCA 11  7.2 — v Marinoff (1971) 125 CLR 529; [1971] HCA 49  11.64, 23.24, 23.39 Baillieu Knight Frank (NSW) v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359  28.146 Baines v State Bank of New South Wales (1985) 2 NSWLR 729  11.65, 26.118 Bairstow v Queen’s Moat Houses plc [2001] CP Rep 59  14.56 Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139  11.85, 26.116, 26.130 Baker v Campbell (1983) 153 CLR 52; 49 ALR 385  16.6, 16.10, 16.11, 16.15, 16.17, 16.69 — v Paul [2013] NSWCA 426  10.138 Baker-Morrison v New South Wales [2009] NSWCA 35  26.27 Bakri Navigation Co Ltd v Ship “Golden Glory” and Glorious Shipping Co SA (Fed Ct, Sydney, 19 June 2001, unreported)  29.38 Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2001] EWCA Civ 2097  14.47 Balchin v Chief Constable of Hampshire Constabulary [2001] EWCA Civ 538; [2001] All ER (D) 46  29.3

Page 15 of 128 Table of Cases

Balcombe Group Plc v London Development Agency [2008] EWHC 1392  21.112 Baldry v Jackson [1976] 1 NSWLR 19  5.30, 5.117 — v — [1976] 2 NSWLR 415  13.3 Balfour v Foreign and Commonwealth Office [1994] 2 All ER 588; [1994] 1 WLR 681  19.35 Ball Memorial Hospital, Inc v Mutual Hospital Insurance, Inc 784 F 2d 1325 (7th Cir 1986)  10.53 Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82  10.171 Balnaves v Smith [2012] QSC 408  27.117 Bank of Crete SA v Koskotas (No 2) [1993] 1 All ER 748; [1992] 1 WLR 919  15.191 Bank of New South Wales v Withers (1981) 35 ALR 21  15.159 Bank of Tokyo Ltd v Karoon [1987] AC 45  5.168 Bankers Trust Co v Galadari [1987] 1 QB 222  24.36 Bankinvest AG v Seabrook (1988) 14 NSWLR 711  2.50 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11  7.2, 7.79, 22.112 Banque Keyser Ullmann SA v Skandia (UK) Insurance Co (No 1) [1986] 1 Lloyd’s Rep 336  16.79 Baptist Union (Qld) - Carinity v Roberts (as a delegate of the Secretary, Dept of Social Services) (2015) 241 FCR 135; 332 ALR 79; [2015] FCA 1068  3.57, 3.59, 3.60 Barakat (t/as Keddies Lawyers) v Bazdarova (in her capacity as executrix of the estate of the late Bazdarov) [2012] NSWCA 140  27.87 Barclay v Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281  7.78 Barclays Australia (Finance) Ltd v Mike Gaffikin Marine Pty Ltd (1996) 21 ACSR 235  24.11 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476  24.97 Barclays Bank of Swaziland Ltd v Hahn [1989] 2 All ER 398; [1989] 1 WLR 506 (HL)  9.49 Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826  23.51 Barder v Caluori [1988] AC 20; [1987] 2 All ER 440  1.64 Bare v Small (2013) 47 VR 255; [2013] VSCA 204  3.129, 28.235, 28.236 Barings plc (in liq) v Coopers & Lybrand (No 2) [2001] Lloyd’s Rep Bank 85  21.14 Barker v Wingo (1972) 407 US 514; (1972) 33 L Ed 2d 101  5.110

Page 16 of 128 Table of Cases

Barlow v Law Society of The ACT [2017] ACTSC 35  14.30 Barnes v Commissioner of Taxation [2007] FCAFC 88  16.71 Barrak v Barakat (2005) 34 Fam LR 273; [2005] Fam CA 906  24.15 Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663  26.60 — v Universal-Island Records Ltd [2003] EWHC 625 (Ch)  9.101 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276  17.23 Barrow, Re [2017] HCA 47  23.18 Barton v Csidei [1979] 1 NSWLR 524  19.30 — v Walker [1979] 2 NSWLR 740  23.8 Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114  10.163 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9  3.14, 3.18, 3.19, 3.69, 23.14, 23.18, 23.19, 25.21 Bates v Lord Hailsham of St Marylebone [1972] 3 All ER 1019; [1972] 1 WLR 1373  10.80 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27  11.77, 11.78, 11.82, 11.83, 11.86, 11.87, 14.30, 14.33, 14.40, 14.59, 26.12, 26.72, 26.128, 26.129 Batrouney v Foster [2015] VSC 230  26.17 Battersby v Anglo-American Oil Company Ltd [1945] KB 23  5.97, 5.98, 5.104 Bauen Constructions Pty Ltd v Land and Housing Corporation (NSW) [2014] NSWSC 684  15.25 Bauhaus Pyrmont Pty Ltd (in liq), Re (2006) 67 NSWLR 289; [2006] NSWSC 879  15.159 Baulderstone Hornibrook v Qantas Airways Ltd (No 3) [2003] FCA 325  28 Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) 14 BCL 277  29.16.55 Bax Global Australia Pty Ltd v Evans (1999) 47 NSWLR 538; [1999] NSWSC 815  10.117 Baychek v Baychek [2010] NSWSC 987  28.234 Baycolt Investments Pty Ltd v Raynard Pty Ltd [2002] WASC 11  10.89 Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746  10.109, 10.112 Beach Petroleum NL v Johnson (1991) 105 ALR 456; [1991] FCA 839  7.24 — v — (1992) 7 ACSR 203; [1992] FCA 110  10.151 Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119  28.8, 28.177, 28.178

Page 17 of 128 Table of Cases

Beach Retreat Pty Ltd v Mooloolaba Yacht Club Marina Ltd [2009] Qd R 356  28.178 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430  3.85, 3.86, 3.88, 3.92, 23.12 Bechara t/as Bechara and Company v Bates [2016] NSWCA 294  28.177 Bechara v Bates (No 3) [2015] NSWSC 1588  11.13 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] ALR 469; [1968] HCA 1  1.62, 10.23, 10.38, 10.39, 10.41, 10.43, 10.61, 10.62 Beecham Group Ltd v Bristol Myers Co [1979] VR 273  15.71 Behbehani v Salem [1989] 1 WLR 723  15.246, 15.249 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127  7.71, 7.73, 7.75 Beling v Sixty International SA (No 2) [2015] FCA 355  28.96 Bell Group Ltd v Westpac (2000) 104 FCR 305  2.39 Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561  6.42 Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1; [1984] FCA 34  10.159 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250; [1979] 1 All ER 118  7.22 Bendeich, Re (1994) 53 FCR 422  28.255, 28.257, 28.293 Bendir v Anson [1936] 3 All ER 326  13.4 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194  24.102 Bentley v Nelson [1963] WAR 89  17.52 Benton v Noye (1990) 101 FLR 18  27.65 Berezovsky v Hine [2011] EWCA Civ 1089  16.104 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; 228 ALR 387; [2006] HCA 32  11.12, 11.19, 11.20, 26.7 Berrigan v McIver [1974] VR 811  1.18, 11.29 Beryl (1884) 9 PD 137  21.111 Bessant v South Cone Incorporated [2002] EWCA Civ 763  25.8 Best Buy Buy Co Inc v Worldwide Sales Corporation Espana SL [2011] EWCA Civ 618; [2011] Bus LR 1166  17.71 Bestjet Travel Pty Ltd v Australian Federation of Travel Agents Ltd [2016] QSC 81  10.57 Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72  10.49

Page 18 of 128 Table of Cases

Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 260 ALR 538; [2009] FCA 1140  16.6, 16.38, 19.3 Bethune v Porteous (1892) 18 VLR 493; [1892] VicLawRp 94  10.172 Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399  10.139 BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25  10.113, 10.116 Bhagat v Global Custodians Ltd [2002] NSWCA 160  17.23, 17.24, 17.76 Bhamjee v Forsdick (No 2) [2004] 1 WLR 88  3.122 Bhimji v Chatwani (No 3) [1992] 4 All ER 912  18.39 BHP v Esso [2007] VSC 281  16.113 BHP Billiton Ltd v Parker (No 2) [2014] SASC 9  28.94, 28.124, 28.133 — v — [2002] NSWSC 981  2.51 — v — (2004) 221 CLR 400; [2004] HCA 61  2.47, 2.50, 2.51 BHP Billiton Olympic Dam Corporation Pty Ltd v Bluestone Apartments Pty Ltd (2013) 115 SASR 586; [2013] SASC 64  16.39 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725  2.31 — v — [1985] VR 756  25.66 BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551  3.113, 29.39 — v — (No 4) [2009] FCA 1448  23.60 Biba Ltd v Stratford Investments Ltd [1973] Ch 281  24.82 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37  22.48 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7  25.19, 25.20 Biguzzi v Rank Leisure plc [1999] 4 All ER 934; [1999] 1 WLR 1926  1.72, 11.55, 14.68 Biovision v CGU Insurance [2010] VSC 589  17.18 Bird v McComb (No 3) [2011] FCA 697  10.106 Birkett v Acorn Business Machines Ltd [1999] 2 All ER (Comm) 429  14.66 — v James [1978] AC 297; [1977] 2 All ER 801; [1977] 3 WLR 38  1.22, 1.26, 1.73, 9.68, 14.37 Birtles v Commonwealth [1960] VR 247  13.4, 13.7 Bisaillon v Keable [1983] 2 SCR 60; (1983) 2 DLR (4th) 193  19.13

Page 19 of 128 Table of Cases

Bischof v Adams [1992] 2 VR 198  28.215 Bishlawi v Minrealm Ltd [2007] EWHC 2204  24.82 Bishop v Bridgelands Securities (1990) 25 FCR 311  13.18 Black v City of South Melbourne (1964) 11 LGRA 179  1.25 — v Garnock (2007) 230 CLR 438; [2007] HCA 31  24.35 — v Lipovac (1998) 217 ALR 386; [1998] FCA 699  27.20, 27.38, 27.40, 27.44 — v Sumitomo [2002] 1 WLR 1562; [2001] EWCA Civ 1819  15.145 Black & Decker Inc v Flymo Ltd [1991] 3 All ER 158; [1991] 1 WLR 753  16.97 Black Stump Enterprises Pty Ltd and Associated Companies (No 2), Re [2006] NSWCA 60  28.256, 28.257 Blackman v Fysh [1892] 3 Ch 209  24.2 Blagojevch v Australian Industrial Relations Commission (2000) 98 FCR 45; [2000] FCA 483  27.43 Blair v Curran (1939) 62 CLR 464  23.11, 26.66, 26.92, 26.94, 26.95 Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs & mgrs apptd) (in liq) [2015] FCA 811  13.58, 13.64 Blake v Leondiou (No 2) [2011] SASC 152  27.69 Blanch v DCT [2004] NSWCA 461  15.171 Blazai Pty Ltd v Maclarens (No 2) [2013] NSWSC 31  28.213 Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897  6.49, 14.49, 14.50 Bli Bli #1 Pty Ltd v Klim Investments Pty Ltd [2010] QSC 381  15.135 Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756  17.60 Blue Wedges Inc v Port of Melbourne Corp [2005] VSC 305  10.77 Bluescope Steel Ltd (formerly known as John Lysaght (Australia Ltd)) v Allianz Australia Insurance Ltd [2012] NSWSC 1178  14.1, 14.9 Blundstone v Johnson [2010] QCA 148  11.62 Body Corporate for Sunseeker Apartments CTS 618 v Jasen [2012] QDC 51  28.116, 28.127 Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2016] VSCA 19  24.8 — v —[2017] VSCA 23  23.43 Boeing Co v Van Gemert 444 US 472 (1980)  13.62

Page 20 of 128 Table of Cases

Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582  28.44, 28.45, 28.46 Bolt & Nut Co (Tipton) Ltd v Rowlands Nicholls & Co Ltd [1964] 2 QB 10; [1964] 2 WLR 98; [1964] 1 All ER 137 (CA)  9.41 Bolton & Bolton (2010) FMCA fam 140  17.81 Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd (2009) 2 Qd R 202; [2009] QCA 135  9.90 Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379; 104 ALR 165  20.69 Bonan v Hadgkiss (2007) 160 FCR 29  25.22, 25.24, 25.25 Bond v Tuohy (1995) 56 FCR 92; 128 ALR 595  18.5 Bond Corporation Holdings Ltd, Re (1989) 1 WAR 465  28.107 Bondelmonte v Bondelmonte (2016) ALJR 402  25.26, 25.68 Bookbinder v Tebbitt (No 2) [1992] 1 WLR 217  19.11 Booker McConnell plc v Plascow [1985] RPC 425  15.241, 15.254 Boral Australian Gypsum Ltd v Victorian Workcover Authority [2015] VSCA 187  28.67 Boral Resources (Vic) Pty Ltd v CFMEU [2013] VSC 572  24.81 — v Robak Engineering and Construction Pty Ltd [1999] 2 VR 507  13.19 Borg v Northern Rivers Finance [2004] QSC 163  27.63 Borowski v Quayle [1966] VR 382  21.33 Borsato v Campbell [2006] QSC 191  7.74 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304  28.53, 28.69 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720  9.93 Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414  21.81 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98  15.161 Bottoms v Reser [2000] QSC 413  28.104, 28.116, 28.118, 28.124, 28.129 Bouras v Grandelis [2005] NSWCA 463  28.107 Bourne v Swan & Edgar Ltd [1903] 1 Ch 211  21.20 Bourns Inc v Raychem Corpn [1999] 3 All ER 154  15.192 Bova v Avati [2009] NSWSC 921  15.44

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Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd [2011] QCA 334  10.11 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107  28.53, 28.54, 28.55, 28.57 Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39  28.71, 28.72 Boyes v Collins (2000) 23 WAR 123  16.64 Boz One Pty Ltd v McLellan [2015] VSCA 145  28.66, 28.68 BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216  3.75, 5.3, 5.4 BPA Industries Ltd v Black (1987) 11 NSWLR 609  18.3 Bradford & Bingley plc v Rashid [2005] EWCA Civ 1080  17.22 — v — [2006] UKHL 37; [2006] 4 All ER 705  17.19 Bradford & Bingley Building Society v Seddon [1999] 4 All ER 217  14.56 Bradto Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89  10.61 Bradvica v Radulovic [1975] VR 434  13.19, 13.20 Brags Electrics Pty Ltd v Gregory [2010] NSWSC 1205  15.242 Brand v Mitson (1876) 24 WR 524  10.80 Brandy v HREOC (1995) 183 CLR 245  3.18 Braniff v Holland & Hannen and Cubitts (Southern) Ltd [1969] 1 WLR 1533  7.73 Brannigan v Davison [1977] AC 238  18.6 Brasington v Overton Investments Pty Ltd [2001] FCA 571  28.30 Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153  10.161 — v — [2003] FCA 1505  13.42 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158  5.26, 5.91, 5.94 Brebner v Perry [1961] SASR 177  18.12 Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909  3.110, 29.43 Brickfield Properties Ltd v Newton [1971] 1 WLR 862  7.73, 7.75 Bridge Property Investments Pty Ltd v Garland Lot 3 Pty Ltd [2014] NSWCA 82  10.94 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45  7.71

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Briffa v Palasovski [2015] NSWSC 213  14.13 Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCAFC 243  13.55 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334  3.42, 10.61, 14.51, 22.47, 22.48 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44  11.85 Brimson v Rocla Concerete Pipes Ltd [1982] 2 NSWLR 937  7.26, 7.77 Brink’s Mat Ltd v Elcombe [1988] 3 All ER 188; [1988] 1 WLR 1350; [1989] FSR 211  8.26, 10.84, 15.250 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541  5.89, 5.110, 25.60, 26.5, 26.8 Briscoe v LaHue (1983) 460 US 325  21.95 Bristow v Adams [2012] NSWCA 166  14.49 British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 72 BLR 26  7.7, 7.24 — v — (1995) 45 Con LR 1  1.64 British American Tobacco Australasia Ltd v Taleb (No 1) [2012] FCA 1065  5.53 British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) (2002) 7 VR 524; [2002] VSCA 197  7.77, 11.3 — v Laurie (2011) 242 CLR 283; [2011] HCA 2  3.26, 3.31, 3.35 — v Cowell (2002) 7 VR 524; [2002] VSCA 197  15.77, 15.78 — v Secretary, Department of Health & Ageing (2011) 195 FCR 123  16.101 British South Africa Co v Companhia de Moçambique [1893] AC 602  2.32, 2.34 British Steel Corp v Granada Television Ltd [1981] AC 1096  15.216 British Thompson-Houston Company Ltd v British Insulated & Helsby Calbes Ltd [1924] 1 Ch 203  15.222 Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163  15.214 Broadway Pty Ltd v Lewis [2012] WASC 373  17.12 Brocx v Hughes (2010) 41 WAR 84; [2010] WASCA 57  26.131 Broken Hill Proprietary v Dagi [1996] 2 VR 117  24.80 Bronze Wing Ammunition Pty Ltd v Safe Work NSW [2016] NSWSC 1075  24.8 Brooke & McKenzie Pty Ltd v El-Gra Engineering Pty Ltd (2015) 331 ALR 535; [2015] FCA 1495  28.6 Brookfield v Yevad Products Pty Ltd [2006] FCA 1180  16.61

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Brookfield & Septic Products Australia Pty Ltd (in liq) v Davey Products Pty Ltd [1998] FCA 1201  5.30 Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1; [2009] FCA 449  16.6, 16.39 — v — (No 4) [2009] FCA 803  27.56 — v International Litigation Partners Pte Ltd (2009) 180 FCR 11  28.198 Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432  3.114 Brother Industries, Ltd v Dynamics Supplies Pty Ltd [2008] FCA 126  27.92 Brown v Amalgamated Union of Engineering Workers [1976] ICR 147  10.18 Brown v BCA Trading Ltd [2016] EWHC 1464  15.94 — v Bennett (2000) The Times, 2 November 2000  21.47 — v Commissioner of Taxation (2001) 187 ALR 714; [2001] FCA 596  17.6, 17.60 — v Newall (1837) 2 My & Cr 558  8.26 — v Nominal Defendant [1972] 2 NSWLR 207  1.62 Browne v Dunn  22.102 Browning v Crowley [2001] NSWSC 427  29.55 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; [1952] HCA 49  10.168 Brunel University v Vaseghi [2007] EWCA Civ 482  17.44 Brunsden v Humphrey (1884) 14 QBD 141  26.90 Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; [1987] FCA 102  10.142, 10.162 Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 2 All ER 225  17.40 Buckland v Watts [1970] 1 QB 27; [1969] 2 All ER 985; [1969] 3 WLR 92  28.242 Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301  10.162 — v Thomas (1554) 1 Pl Com 118  21.10 — v Wathen [1973] VR 511  21.20 Bugaj v Bates [2004] FCA 1260  15.240 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62  25.1 Building Guarantee & Discount Co Ltd v Dolejsi [1967] VR 764  9.41

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Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689  16.83, 16.86, 16.87 Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822  5.136, 10.136 Bullivant v A-G of Victoria [1901] AC 196  16.78 Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464  10.24 — v London General Omnibus Co [1907] 1 KB 264  28.64 Bulsey v Queensland [2016] QCA 158  27.27, 27.41, 27.43 Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22  22.70 Burbank Australia Pty Ltd v Luzinat [2000] VSC 128  14.58 Burbank Trading Pty Ltd v Allmere Pty Ltd (2009) 22 VR 633; [2009] VSCA 82  29.17 Burden v Ainsworth (2004) 59 NSWLR 506; [2004] NSWCA 3  26.80 Burford v Allan (1996-7) 68 SASR 217  28.241 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212  2.39 Burmah Oil Co Ltd v Bank of England and A-G [1980] AC 1090; [1979] 3 All ER 700  19.5, 19.37 Burnell v British Transport Commission [1956] 1 QB 187; [1955] 3 All ER 822  16.108 — v FitzGerald and Browne [2017] TASSC 31  25.61 Burnie Port Corporation v Bank of Western Australia [2003] TASSC 132  28.107 Burns v Grigg [1967] VR 871  25.60 Burrell v R [2008] HCA 34  23.33, 23.39, 23.40, 23.46 Bursill v Tanner (1885) 16 QBD 1; [1881–5] All ER Rep Ext 1203  16.31 Burton v Gulamali [2006] All ER (D) 44  11.58 — v Spencer [2015] QSC 187  23.23 Burwood Council v Ruan [2008] NSWLEC 167  24.88 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499  10.19, 10.61 Butcher v Craig [2010] WASCA 92  28.107 Butler v Electrolytic Zinc Co of Australasia Ltd [1975] Tas SR 9  25.43 — v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 2 Qd R 252  14.63

Page 25 of 128 Table of Cases

Buttes Gas & Oil Co v Hammer (No 3) [1981] 1 QB 223; [1980] 3 All ER 475  16.86 Buxton & Lysaught Pty Ltd v Buxton [1977] NSWLR 285  15.102 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225  16.103

C C v News Group Newspapers Ltd [2002] EWHC 1101  15.191 C Inc v L [2001] 2 Lloyd’s Rep 459  10.129 C Plc v P [2007] EWCA Civ 493  18.35, 18.36, 18.37 Cabassi v Vila (1940) 64 CLR 130  3.101, 3.102, 3.105, 21.95, 26.140 Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253  14.53, 14.54, 28.255 Cachia v Hanes (1994) 179 CLR 403; 120 ALR 385  3.136, 11.88, 28.96, 28.240, 28.241, 28.242, 28.243, 28.245, 28.249, 28.250 Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137; [2008] FCA 88  16.105, 19.12, 19.13 — v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; [2006] FCA 363  21.20, 21.21 Cadgroup Australia Pty Ltd v Snowball [2016] NSWSC 22  10.37 Cadura Investments v Rototek Pty Ltd [2004] WASC 150  10.138 Cahill v Kiversun Pty Ltd [2017] VSC 628  15.37 Cain v Glass (No 2) (1985) 3 NSWLR 230  3.65, 19.13, 19.14 Cains v Wadiwel [2007] NSWSC 207  29.55 Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) [2016] NSWSC 1452  24.62 Calcraft v Guest [1898] 1 QB 759  16.115 Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333  17.64, 27.20, 27.21, 27.38 Calenti v North Middlesex NHS Trust (2001) LTL 10 April 2001  21.51 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529  6.52 Cambridge Gulf Investments Pty Ltd (in liq) v Dandoe Pty Ltd (1999) 32 ASCR 422  2.39 Cambridge Nutrition v BBC [1990] 3 All ER 523  10.49 Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5  5.3, 22.106, 22.107, 23.45

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— v Hogan (1934) 51 CLR 358  13.5, 13.17 — v National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133  13.4 Camm v ASI Development Company Pty Ltd [2007] QCA 317  23.23 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76; [2010] FCA 398  14.55, 15.161, 15.163 Campbell v Pye (1954) 54 SR (NSW) 308  13.3 — v Rickards (1833) 5 B & Ad 840  21.13 Campbell and Fell v UK (1983) 5 EHRR 207  16.16 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; [2006] HCA 41  10.165, 28.41, 28.42 Canadian Transport v Alsbury (1952) 7 WWR (NS) 49  24.87 Capital Assist Pty Ltd v Lakewood Stud (SA) Pty Ltd [2006] SASC 375  24.70 Capital General Corp Ltd, Re (2001) 19 ACLC 848; [2001] VSC 570  14.74 Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority (2008) 2 ACTLR 44  25.61 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18  10.8, 10.9, 10.97, 10.98, 10.99, 10.100, 10.102, 10.108, 10.110, 10.116, 10.117, 10.120, 10.123, 10.129, 10.130, 11.80 Cardno BSD Pty Ltd v Water Corporation (No 2) [2011] WASCA 161  9.34 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; 290 ALR 348; [2012] NSWCA 176  26.59, 26.60 Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; [1966] 2 All ER 536  26.84, 26.88, 26.93, 26.98, 26.113, 26.116, 26.143, 26.144 Carmody v Mackellar (1997) 148 ALR 210  16.74 Carnduff v Rock [2001] 1 WLR 1786; [2001] EWCA Civ 680  19.58 Carnie v Esanda Finance Corpn Ltd (1994) 183 CLR 388  13.37 Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010  15.216 Caron v Caron [2017] FamCA 1033  11.73 Carpathian Resources Ltd v Geological and Corporate Management Pty Ltd [2005] WASCA 104  7.2 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20  11.64, 25.19, 25.20 Carr Boyd Minerals Ltd v Ashton Mining Ltd (1989) 15 ACLR 599  10.17 Carron Investments Pty Ltd v Lang [2016] VSCA 287  9.40

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Carson v Legal Services Commissioner [2000] NSWCA 308  28.283 — v Minister for Education (Qld) (1989) 25 FCR 326  10.61 Carter, in the matter of Spec FS NSW Pty Ltd (In Liq) [2013] FCA 1027  7.75 Carter v Boehm (1876) 1 Smith LC 577  21.5, 21.23 — v Egg & Egg Pulp Marketing Board (Victoria) (1942) 66 CLR 557; [1942] HCA 30  2.37 — v Hayes (1994) 61 SASR 451  15.166 — v Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121  16.11, 16.29 — v Northmore Hale Davy & Leake (1995) 183 CLR 121  16.2, 16.10 — v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121  3.95 Cartledge v E Jopling and Sons Ltd [1963] AC 758; [1963] 1 All ER 341  26.19 CAS (Nominees) Ltd v Nottingham Forest plc [2002] EWHC 701; [2001] 1 All ER 954  16.94 Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182  26.60 Casley-Smith v FS Evans & Sons Pty Ltd and District Court of Stirling (No 1) (1988) 49 SASR 314  21.25 — v Stirling District Council (1989) 51 SASR 447  19.58 Cassano v Toronto Dominion Bank [2007] ONCA 781; 87 OR (3d) 481  13.56 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2013) 305 ALR 648; 281 FLR 409; 97 ACSR 244; [2013] NSWCA 454  26.86, 26.99 Castagna v Conceria Pell Mec SpA (NSWCA, 15 March 1996, unreported)  5.136 Castanho v Brown & Root (UK) Ltd [1980] 3 All ER 72  14.38 — v — [1981] AC 557  14.7 Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445; [2011] FCAFC 55  21.7 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58  10.43 Catalno v Managing Australia Destinations (No 3) (2013) 306 ALR 449; [2013] FCA 1194  24.48 Cavasinni Constructions Pty Ltd v New South Wales Land and Housing Corporation [2014] NSWSC 1678  29.28 Cayne v Global Natural Resources plc [1984] 1 All ER 225  10.10, 10.37 CB Australia Ltd v Shepherd [2017] NSWSC 1768  17.28, 17.40 CBS United Kingdom Ltd v Lambert [1983] Ch 37  10.110, 10.120

Page 28 of 128 Table of Cases

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67  11.4, 11.40, 25.14 CEF Holdings Ltd v Mundey [2012] EWHC 1524  11.63 Celestino v Celestino (FCA, Spender, Miles and Von Doussa JJ, 16 August 1990, unreported)  14.23 Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653  24.8, 24.9 Cement Linings Ltd v Rocla Ltd (1940) 40 SR (NSW) 491  21.111 Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; [2008] SASC 158  9.95 Central Goldfields Shire v Haley (No 2) [2009] VSCA 203  28.62, 28.63 Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd (2015) 231 FCR 17; 106 ACSR 127; [2015] FCAFC 63  28.216 Central Queensland Mining Supplies Pty Ltd v Columbia Street Casting Ltd [2010] QSC 183  15.52 Centrebet Pty Ltd v Baasland [2013] NTSC 59  14.69, 24.97 CFC Consolidated Pty Ltd v Cooper [2015] WASC 185  15.236, 15.241 CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad [2001] FCA 1223  15.130 — v Bazem Pty Ltd [2011] NSWCA 81  13.20 — v Blakeley (2016) 90 ALJR 272; [2016] HCA 2  13.11 — v Watson (As Trustee of the Deed of Arrangement in Respect of Greaves) [2007] NSWCA 301  14.13 CH Giles & Co Ltd v Morris [1972] 1 All ER 960  24.82 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353  28.145, 28.151 Challender v Royle (1887) 36 Ch D 425  10.32, 10.38 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374  23.19 Chalmers and Partners v Kensit [2008] WASCA 122  5.106 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; 78 ALR 271; [1988] HCA 21  9.40, 11.62, 23.11, 26.64, 26.86, 26.89, 26.91, 26.92, 26.122 — v Federal Commr of Taxation (1991) 28 FCR 21; 98 ALR 617  9.40 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33  26.112 Chan v Acres (No 3) [2016] NSWSC 1389  27.30 Chandler v Water Corporation [2004] WASC 95  15.66 Channel Seven Adelaide Pty Ltd v Lane & Hurley [2004] SASC 177  15.31

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Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246  11.19 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334  29.32 Chanoch v Hertz (1888) 4 TLR 331  10.80 Chapman v Chapman [2007] NSWSC 1109  21.48 — v Honig [1963] 2 QB 502  24.93 Chappell v Davidson (1856) 8 De GM & G 1; 44 ER 289  10.64 Charafeddine v Morgan [2014] NSWCA 74  26.98, 26.99 Charara v Commissioner of Police (2008) 182 A Crim R 64; [2008] NSWCA 22  18.12 Charm Maritime Inc v Kyriakou [1987] 1 Lloyd’s Rep 433  26.146 Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101  17.57 Chase v News Group Newspapers [2002] EWHC 1101  15.192 Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1  7.73 Chatterton v Watney (1881) 17 Ch D 259  24.51 Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299; [2009] QCA 348  11.63 Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd [1992] 4 All ER 942; [1992] 1 WLR 820  17.43 Cheltenham and Gloucester Building Society v Ricketts [1993] 4 All ER 276; [1993] 1 WLR 1545  10.71 Chen v Lym International Pty Ltd [2009] NSWCA 121  25.79 Chic Fashions v Jones [1968] 2 QB 299  18.34 Chilton v Saga Holidays plc [1986] 1 All ER 841  11.19 Chinergy, Re; Ex parte Chinery (1884) 12 QBD 342  23.9 Chint Australasia Pty Ltd v Cosmoluce Pty Ltd [2008] NSWSC 1054  24.38 Chisholm v Rieff (1953) 2 FLR 211  10.64 Chocoladefabriken Lindt & Sprungli AG v Nestlé Co Ltd [1978] RPC 287  17.40 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334  29.47 Chrulew v Borm-Reid & Co (a firm) [1992] 1 All ER 953; [1992] 1 WLR 176  17.64 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1  3.17

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Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97; [1979] 1 WLR 723  15.62, 15.171, 15.199, 19.58 Ciappina v Ciappina (1983) 70 FLR 287; [1983] FCA 95  10.172 Cilli v Abbott (1981) 53 FLR 108  28.7, 28.50 Cirillo v Citicorp Australia Ltd (2004) 236 LSJS 24; [2004] SASC 293  10.71 Citicorp Aust Ltd v Cirillo [2000] SASC 219  17.72 Citigroup Pty Ltd v National Australia Bank [2012] NSWCA 381  24.49 City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463  9.41 Civic Video Pty Ltd v Paterson [2013] WASCA 107  3.79 Clack v Collins (No 1) [2010] FCA 513  10.155 Clampett v Attorney-General (2009) 181 FCR 473  24.80 Clan Lamont (1946) 76 LIL Rep 521  21.111 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552  10.123, 11.11 Clark v Ryan (1960) 103 CLR 486; [1960] ALR 524  21.5, 21.7, 21.8, 21.10, 21.19, 21.23, 21.29, 21.30 — v State of New South Wales (2006) NSWLR 640; [2002] NSWSC 673  15.80 — v Tasmania (No 2) [1999] TASSC 130  28.107 Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5  9.73 Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq) [2014] VSC 516  23.50 — v — (Ruling No 3) [2014] VSC 584  23.50 Clasul Pty Ltd v Commonwealth [2014] FCA 1133  7.74, 7.75 Clay v Kurelic [2001] WASC 318  28.164 Cleary v Jeans (2006) 65 NSWLR 355; [2006] NSWCA 9  26.136 Clone Pty Ltd v Players Pty Ltd (in liq) (recs apptd) (2016) 127 SASR 1; [2016] SASCFC 134  11.22, 25.86, 25.87 — v — [2018] HCA 12  25.88, 25.89, 25.90 Clout v Klein [2001] QSC 401  26.121 Clyne v Deputy Commissioner of Taxation (No 3) (1984) 154 CLR 589  23.21 — v New South Wales Bar Association (1960) 104 CLR 186  14.30, 14.53, 28.41, 28.44, 28.46, 28.187

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CMA Assets Pty Ltd v Mount Isa Mines Ltd [2017] QCA 259  7.74 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47  25.13, 25.26, 25.68 Coal Cliff Collieries v Sijehama (1991) 24 NSWLR 1  29.18 Coastal Hire Pty Ltd v Ewers [2009] WASCA 36  28.62, 28.63, 28.64 Coates v Harbour Radio Pty Ltd [2010] NSWSC 796  28.88 Cobra Golf Ltd v Rata [1998] Ch 109; [1997] 2 All ER 150  15.188, 18.39 Coburn v Colledge [1897] 1 QB 702  26.17 Coca-Cola Co v Aytacli (Contempt: Committal) [2003] EWHC 91; [2003] 11 LS Gaz R 31.  15.272 — v Gilbey [1995] 4 All ER 711  15.272 — v Pepsico, Inc [2011] FCA 1069  15.14 Cockerill v Collins [1999] 2 Qd R 26  16.6 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337  17.56 Coe v Commonwealth of Australia (The Wiradjuri Claim) (1993) 118 ALR 193; [1993] HCA 42  11.86, 11.87 Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd (2014) 312 ALR 389; [2014] FCA 130  10.132 Coffey v Department of Social Security (1999) 86 FCR 434; [1999] FCA 375  2.39 — v Queensland [2010] QCA 291  3.138 Cohen v Asssociated Dominions Assurance Society Pty Ltd (1946) 73 CLR 435  9.38 — v McWilliam (1995) 38 NSWLR 476  14.21 Coldham-Fussell v Federal Commissioner of Taxation (2011) 82 ATR 872; [2011] QCA 45  9.90 Coles and Ravenshear, Re [1907] 1 KB 1  1.62 Coles Supermarkets Australia Pty Ltd v Clarke [2012] NSWCA 428  25.78 Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225  27.39 — v — [1993] FCA 801  28.98, 28.145, 28.148, 28.149, 28.150 Colina, Re; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57  11.75, 24.73 Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290  3.138 Collins Thomson Pty Ltd v Clayton [2002] NSWSC 366  21.44

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Colonial Sugar Refining Co v Commonwealth (1912) 15 CLR 182; [1912] HCA 94  2.9 Colorado Products Pty Ltd (in prov liq), Re [2013] NSWSC 611  10.123 Columbia Picture Industries Inc v Robinson [1987] Ch 38; [1986] 3 All ER 338  10.86, 15.242, 15.253, 15.266, 15.269, 15.271 Comalco Aluminium (Bell Bay) Ltd v Claudio [1970] Tas SR 231  25.43 Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192  29.38, 29.42, 29.44 Comfort Hotels v Wembley Stadium [1988] 3 All ER 53; [1988] 1 WLR 872  16.1, 20.4 Comgroup Supplies Pty Ltd v Products For Industry Pty Ltd [2016] QCA 130  27.41 Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405  10.11, 10.19, 10.31, 10.37, 10.80 Commercial Bank of the Near East plc v A B C & D [1989] 2 Lloyd’s Rep 319  10.104 Commercial Banking Co of Sydney Ltd v Rawson [1983] 1 Qd R 487  24.23 Commissioner of Water Resources, Re [1991] 1 Qd R 549  15.152 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576  3.70 Commissioner for Fair Trading v Rixon (No 3) [2014] NSWSC 1279  24.90 — v — (No 4) [2018] NSWSC 1  24.90 Commissioner for Government Transport v Adamcik (1961) 106 CLR 292  21.31 Commissioner for Railways v Bielewicz [1963] NSWR 482  1.17 — v Small (1938) 38 SR (NSW) 564  15.160, 15.166, 15.167, 15.168, 15.170 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220  9.38 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545  16.6, 16.70, 16.71, 16.72, 16.74, 16.77 Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164  15.174 — v Tanos (1958) 98 CLR 383; [1958] HCA 6  3.81, 19.47 Commissioner of Taxation v Day (2007) 164 FCR 250  26.122, 26.123 — v Karas [2012] VSC 68  10.106 — v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86  16.6, 16.111 — v The Myer Emporium Ltd (1986) 160 CLR 220  25.78, 25.79

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— v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011  6.43 Commissioner of Taxation (Cth) v Coombes (1999) 92 FCR 240; 164 ALR 131; [1998] FCA 842  16.31 — v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247  16.6, 16.44 Commissioners of Customs and Excise v A & D Goddard (a firm) [2001] STC 725  11.19 Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31  25.69 — v Cornwell (2007) 229 CLR 519  26.19, 26.20 — v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2  6.52 — v Fernando (2012) 200 FCR 1; [2012] FCAFC 18  14.51 — v Gretton [2008] NSWCA 117  27.21, 27.22, 27.29, 27.39, 27.43, 27.58, 27.113, 27.115, 28.56, 28.76 — v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370  3.102, 3.103, 3.104, 9.82, 21.95 — v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1  3.17 — v Mewett (1997) 191 CLR 471  26.7 — v Northern Land Council (1993) 176 CLR 604; 112 ALR 409  19.34, 19.59 — v Sanofi (formerly Sanofi-Aventis) (2015) 113 IPR 95; [2015] FCA 384  10.64 — v Sanofi (formerly Sanofi-Aventis) [2015] FCAFC 172  10.75 — v Tasmania (1983) 158 CLR 1; [1983] HCA 21  2.41 — v Vance [2005] ACTCA 35  16.6, 16.33 — v Verwayen (1990) 170 CLR 394  26.7 Commonwealth Bank v Iinvest (No 3) [2017] NSWSC 433  21.8 Commonwealth Bank of Australia v Dalle Cort [2015] QSC 41  27.55 — v Goater [2016] NSWSC 710  15.19 — v Maksacheff (No 2) [2016] NSWSC 1586  24.70 — v Oswal [2011] WASC 84  8.26 — v Quade (1991) 178 CLR 134; [1991] HCA 61  15.81, 25.84, 25.85, 25.86, 25.87 Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527  14.63 Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169  17.43 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311  3.117, 3.118

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Compagnia Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68  21.2 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577  3.116 Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55  1.20, 11.29, 15.5, 15.6, 15.9, 15.39, 15.48, 15.49, 15.70 Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513  23.35 Compass Airlines Pty Ltd, Re (1992) 35 FCR 447; 109 ALR 119  16.6 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382  10.73, 10.126, 10.127, 10.128 Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438; [1999] FCA 198  3.49 Computershare Ltd v Perpetual Registrars Ltd [2000] 1 VR 626  15.126 — v — (No 2) [2000] VSC 233  29.17, 29.19 Con Kallergis Pty Ltd v Calshone Pty Ltd (1998) 14 BCL 201  29.20 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577  20.7 Conduit v Lisa Lodge Pty Ltd [2006] VCC 1832  28.202 Connellan v Murphy [2017] VSCA 116  26.12 Consafe v Emtunga [1999] RPC 154  15.230 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2009) 203 CLR 645; [2001] HCA 16  29.37 — v BHP Steel (AIS) Pty Ltd [2001] FCA 1758  11.74 — v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; 320 ALR 448; [2015] HCA 21  10.79, 11.68, 11.75, 24.78 — v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261  24.86 Contamination Control Laboratories Pty Ltd v Reyer [2010] QSC 1  10.163 Controlled Consultants Pty Ltd v Comr for Corporate Affairs (1985) 156 CLR 385  18.33, 18.34 Conway v Rimmer [1968] AC 910; [1968] 1 All ER 874  3.94, 19.5, 19.13, 19.23, 19.33, 19.36 Cook v DA Manufacturing Co Pty Ltd (2004) QCA 52  9.44 Cooke v Gill (1873) LR 8 CP 107  7.16, 7.74 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322  24.8 Cooper v Moloney (No 6) [2012] SASC 212  10.56

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Cooper-Dean v Badham [1908] WN 100  14.17 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738  15.224 Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864  28.235, 28.236 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2006] NSWSC 481  10.19 Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65  10.152 Cornwell v R (2007) 231 CLR 260; 234 ALR 51; [2007] HCA 12  18.26 Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) [1974] 1 NSWLR 391  13.21 — v Smithson [1984] 3 NSWLR 547  24.61 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; 10 IPR 53; [1987] FCA 266  15.202, 22.42 Cosenza v Gill [2016] SASC 154  14.32 Coshott v Barry [2012] NSWSC 850  26.17 Coster v Bathgate [2005] QCA 210  15.30 Cott UK Ltd v FE Barber Ltd (1997) 3 All ER 540  29.32 Coulter v R (1988) 164 CLR 350  3.90 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176  28.63 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, The Environment, Tourism and Territories (1992) 34 FCR 412  28.146 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236  16.112 Courtney v Medtel Pty Ltd (2002) 122 FCR 168  13.42 Courtney & Fairbairn Ltd v Tolaini Bros (Hotel) Ltd [1975] 1 All ER 716  29.17 Covell Matthews & Partners v French Wools Ltd [1972] All ER 591  14.1, 14.9 Coward v Stapleton (1953) 90 CLR 573  24.79 Cowell v Taylor (1885) 31 Ch D 34  10.153, 10.156, 10.157, 10.172 Cowper v Fairfax Media Publications Pty Ltd; Cowper v Australian Broadcasting Corporation [2016] NSWSC 1614  15.213 Cox v Journeaux (No 2) (1935) 52 CLR 713  14.36, 25.64 CPB Contractors Pty Ltd v Celsus Pty Ltd [2017] FCA 162  29.38

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Crampton v R (2000) 206 CLR 161; [2000] HCA 60  25.18, 25.91 Crane Distribution Ltd v Van Schellebeeck [2009] NSWSC 263  11.71 Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9  24.11 Creevey v Barrois [2005] NSWCA 264  5.108 Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553; [1971] 3 All ER 1192  16.78, 16.80 Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074  15.255, 15.188 Crettazo v Lombardi (1975) 13 SASR 4  28.53, 28.71, 28.76 Crisp v Keng (NSWSC, 27 September 1993, unreported, Court of Appeal)  28.150 Cristovao v Registrar Caporale [2012] FCA 1329  3.138, 3.139 Crocker v Toys ‘R US (Australia) Pty Ltd (No 3) [2015] FCA 728  14.42, 14.47 Croker v Commissioner of Taxation (2002) 124 FCR 286  28.247 Crompton v Buchanan [2010] QCA 250  5.94, 5.105, 5.106 Crony v Nand [1999] 2 Qd R 342; [1998] QCA 367  24.8 Cropper v Smith (1884) 26 Ch D 700  1.24 Crump v Cavendish (1880) 5 Ex D 211  9.80 — v Equine Nutrition Systems Pty Ltd t/as Horsepower (No 2) [2007] NSWSC 25  27.26, 27.27 CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345  26.77, 26.101 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345  5.155, 5.163, 5.166, 5.167, 5.168, 5.169 CT Sheet Metal Works Pty Ltd v Hutchinson (2012) 201 FCR 275; [2012] FCA 17  15.240, 15.252 Cubelic v T & D Lock Pty Ltd [2009] SASC 397  9.49 Cudgegong Australia Pty Ltd v Transport for NSW (No 4) [2015] NSWLEC 195  24.8 Cumberland Consolidated Holdings v Ireland [1946] 1 All ER 284  24.70 Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246  15.125 Cunningham v The Scotsman Publications Ltd [1987] SLT 698  3.61 Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1982] 2 Qd R 335  15.64 Currie v Dempsey [1967] 2 NSWR 532  22.32 Curtis v NID Pty Ltd [2010] FCA 1072  10.109

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Cutler v Dixon (1585) 4 Co Rep 14b  21.99 Cuttle v Brandt (1947) 64 WN (NSW) 96  9.44 Cutts v Head [1984] Ch 290; [1984] 1 All ER 597  17.2, 17.3, 17.4, 17.64, 29.13 Czerwinski v Syrena Royal Pty Ltd (No 1) (2000) 34 ACSR 245  16.95

D D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 1 All ER 589; [1977] UKHL 1  3.94, 19.13, 19.15, 19.16, 19.32 D (minors) (conciliation: disclosure of information), Re [1993] 2 All ER 693  17.82 Dahler v Australian Capital Territory (No 2) [2014] FCA 1154  28.288 Dai v Zhu [2013] NSWCA 412  9.45, 9.50, 15.76 Daintrey, Re; Ex parte Holt [1893] 2 QB 119  17.23 Dale v Clayton Utz (No 3) [2013] VSC 593  28.29, 28.30, 28.31 Dalecoast Pty Ltd v Monisse [1999] WASCA 103  15.98 Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129; [2015] FCA 317  15.133, 15.134, 15.211, 15.212 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325  16.73 Dalma Formwork Pty Ltd (admin appt) v Concrete Constructions Group Ltd [1998] NSWSC 472  10.163 Daly v Silley [1960] VR 353  9.40 Damjanovic v Maley (2002) 55 NSWLR 149; 195 ALR 256; [2002] NSWCA 230  3.139 Danagher v Child Support Registrar (2014) 228 FCR 213  25.61 Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332  29.32 Danchevsky v Danchevsky [1974] 3 All ER 934  11.70, 24.87, 24.90 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955  9.93 Daniel v Western Australia (1999) 94 FCR 537; [1999] FCA 1541  19.15 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49  16.6, 16.74, 18.1 Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807  7.75 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70  7.2, 7.20, 7.69 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435  21.100

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Dart Industries Inc v David Bryer & Associates Pty Ltd (1997) 38 IPR 389  15.250 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588  21.31 Dauguet v Centrelink [2015] FCA 395  3.139 David v National Panasonic (Australia) Pty Ltd (Supreme Court of New South Wales Court of Appeal, 23 September 1965, unreported)  1.20, 11.29 David Neate & Tara Farm Pty Ltd v Thoroughbred International Marketing Pty Ltd [2012] VSCA 65  24.8, 24.9 David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294  3.57, 3.67 David Weiping Chen v Kim Man Chan [2009] VSCA 233  28.69 Davies v Eli Lilly & Co [1987] 1 All ER 801; [1987] 1 WLR 428  1.64, 11.22, 15.3 Davies v Nyland (1975) 10 SASR 76  17.6, 17.16 Davis v Swift (No 2) [2015] NSWCA 137  27.27 — v Turning Properties Pty Ltd (2005) 222 ALR 676; [2005] NSWSC 742  8.4 Davy v Garrett (1877) 7 Ch D 473  7.22, 7.79 Dawdy and Hartcup, Re An Arbitration Between (1885) 15 QBD 426  29.29 Dawkins v Lord Rokeby (1873) LR 8 QB 255  21.95 — v Prince Edward of Saxe Weimer (1876) 1 QBD 499  14.42 Dawson v Westpac Banking Corporation (1991) 66 ALJR 94; [1991] HCA 52  25.7 Day v Humphrey [2017] QCA 104  24.8, 24.9 — v William Hill (Park Lane) Ltd [1949] 1 All ER 219  15.178 De Giorgio v Dunn (No 2) (2005) 62 NSWLR 284  28.283 De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207; [1997] HCA 14  23.33, 28.50 de Santis v Russo [2001] QCA 457  24.102 De Saram v Brown [2015] VSCA 142  9.89 De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544; [1993] FCA 146  28.253, 28.256, 28.281, 28.293 Deangrove Pty Ltd (rec & mgrs apptd) v Commonwealth Bank of Australia (2001) 108 FCR 77; 37 ACSR 465; [2001] FCA 173  26.131 Dean-Willocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64  13.18

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Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397  25.66 Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284  28.257 Degmam Pty Ltd (in liq) v Wright (No 2) (1983) 2 NSWLR 354  28.150 Deintrey, Re; Ex parte Holt [1893] 2 QB 116  17.71 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263  28.235, 28.237 Den Norske Bank ASA v Antonatos [1999] QB 271; [1998] 3 All ER 74  18.3, 18.4, 18.11, 18.15 Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158  24.2 Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321; [2012] FCA 63  15.14 Deposit and Investment Company Ltd (rec apptd), Re (1991) 30 FCR 463  5.115, 5.116 Deputy Commissioner v Gashi (2010) 27 VR 127; [2010] VSC 120  10.104, 10.113, 10.116 Deputy Commissioner of Taxation v Bollands [2012] FCA 1050  10.123 — v Gashi (No 3) [2011] VSC 448  24.89 — v Hua Wang Bank Berhad [2010] FCA 1014  10.112, 10.113 — v Levick (1999) 168 ALR 383; [1999] FCA 1580  28.256, 28.285, 28.286, 28.293 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 734  21.20 Derby & Co Ltd v Weldon (1988) Times, 20 October  15.181 — v — (No 10) [1991] 2 All ER 908; [1991] 1 WLR 660  16.108 Desert Sun Loan Corporation v Hill [1996] 2 All ER 847  26.85, 26.145, 26.146 Det Danske Hedelskabet v KDM International plc [1994] 2 Lloyd’s Rep 534  15.113 Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534  25.64 Dey v Victorian Railways Commissioners (1949) 78 CLR 62  9.73, 9.80 DHR International Inc v Challis; Hoffmann v Challis [2016] NSWSC 1619  10.147 Di Benedetto (in his personal capacity and as executor and trustee of will and estate of Di Benedetto) v Kilton Grange Pty Ltd [2017] VSCA 119  3.91 Di Iorio v Wagener [2016] QCA 346  25.39 Dian AO v Davis Frankel & Mead (A Firm) (OOO Alfa-Eco intervening) [2005] 1 WLR 2951; [2004] EWHC 2662  3.56 Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57  23.33

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Dibbs v Emirates (No 2) [2015] NSWSC 1786  27.30, 27.66 Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132  9.40 Dietrich v R (1992) 177 CLR 292  3.135, 25.106 DIF III Global Co-Investment Fund, LP v BBLP LLC [2016] VSC 401  10.170 Digicel (St Lucia) Ltd v Cable & Wireless plc [2008] EWHC 2522  15.55, 15.92 Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63  16.64 Dingley v The Chief Constable, Strathclyde Police [2000] UKHL 14; 2000 SC (HL) 77  21.34 Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588  24.79 — v Morgan [1976] AC 182  16.67 — v Reginald Edwards [2012] VSCA 293  23.24 — v Smith (1996) 86 A Crim R 308  19.18 Director-General, Department of Community Services v D [2006] NSWSC 827  15.208 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613; [1975] 1 All ER 41  15.182 Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 3 All ER 750; [1985] 1 WLR 1066  18.40 Dixons Stores Group Ltd v Thames Television plc [1993] 1 All ER 349  17.40, 17.43 DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17  23.31, 23.40, 23.41, 23.43, 23.44, 23.46, 25.1 DM & BP Wiskich Pty Ltd v Joseph Saadi (NSWSC, Bryson J, 16 February 1996, unreported)  24.61 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17  7.16, 7.74, 26.16, 26.19, 26.90 Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643  3.114, 29.16, 29.21 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261; [1993] FCA 259  28.53, 28.58, 28.72, 28.92 Doe v Howard [2015] VSC 75  24.102 Domino’s Pizza Enterprises Ltd v Precision Tracking Pty Ltd (No 2) [2017] FCA 211  10.166 Donald Campbell & Co Ltd v Pollak [1927] AC 732  28.19, 28.49 Donaldson v Harris (1973) 4 SASR 299  7.5 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570  10.49 Donohoe v Britz (No 2) (1904) 1 CLR 662  28.97

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Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219  28.52, 28.69, 28.72 Doran Constructions Pty Ltd (in liq), Re (2002) 194 ALR 101; 168 FLR 116; [2002] NSWSC 215  16.6, 16.93 Dormeuil Frères SA v Nicolian Ltd [1988] 1 WLR 1362  15.250 Dornan v JW Ellis & Co Ltd [1962] 1 QB 583  7.75 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12  3.101, 3.102, 3.105, 3.110, 14.53, 21.95, 21.96, 23.40, 26.4, 26.63, 26.137, 26.138, 26.140 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126  1.20, 7.20, 11.29, 14.27 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56  26.63 Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386  17.6, 17.19, 17.37, 17.39 Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd [2012] QSC 290  29.16, 29.18 Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765  22.104 — v — (16 October 1996, BC9604909, unreported)  14.21, 14.22 Draney v Barry [2002] 1 Qd R 145  7.75 DRD Australasia APS v Stratton (No 2) [2008] WASC 76  10.85 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45  23.1 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384  16.111 DSM Nutritional Products LLC v Suntory Holdings Ltd [2013] FCA 675  15.14 DSV Silo - und Verwaltungsgesellschaft mbH v Owners of the Sennar [1985] 2 All ER 104; [1985] 1 WLR 490  26.117, 26.141 Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731  15.178 Duckworth v Water Corp [2013] WASC 383  14.13 Duff Development Co v Government of Kelantan [1924] AC 797  22.83 Dugal v Manulife Financial Corp [2011] ONSC 1785; (2011) 105 OR (3d) 364  13.63 Duke Group v Alamain Investments [2003] SASC 272  29.60, 29.61 Duncan v Cammell Laird [1942] AC 624; [1942] 1 All ER 587  19.32 Dunlop v Fishburn (No 3) [2012] FCA 315  11.3 Dunlop Holdings Ltd v Staravia Ltd [1982] Com LR 3  15.241 Dunstan v Highman (2016) 310 FLR 58  25.33

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— v Orr (2008) 217 FCR 559; [2008] FCA 31  16.117 Dura (Australia) Construction Pty Ltd v Victorian Managed Insurance Authority (2009) 31 VAR 193  25.67 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431; [1998] WASCA 184  7.75 Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2016] SGHC 238; [2017] 3 SLR 267  29.38

E E v SE [2007] SASC 198  3.65, 5.100 E D & F Man Liquid Products v Patel [2003] EWCA Civ 472; [2003] (D) All ER 75 (CA)  9.45 E I Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423; 83 ALR 499  1.64, 1.82, 1.87, 1.88, 11.65 Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469  28.137 Earl of Ripon v Hobart (1834) 3 My & K 169; 40 ER 65  10.27 Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750  24.82 Eastman v R (1997) 76 FCR 9  19.18 — v — (2000) 203 CLR 1; [2000] HCA 29  25.1, 25.11, 25.17, 25.91, 25.106 Eatock v Bolt (No 2) [2011] FCA 1180  27.117 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63  3.18, 3.25, 3.26, 3.27, 3.28, 3.29, 3.30, 3.33, 3.35, 3.36, 3.37, 3.48 EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) (2012) 199 FCR 533; [2012] FCA 48  15.138 Edwards v Bray [2011] 2 Qd R 310; [2011] QCA 72  26.17 — v Noble (1971) 125 CLR 296; [1971] HCA 54  25.7, 25.14 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510  26.75, 26.83, 26.86, 26.88 Ehrmann v Ehrmann [1896] 2 Ch 826  15.64 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451  28.138, 28.144 Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336  26.125 El Ossman v Minister for Immigration and Border Protection [2017] FCA 636  19.61, 19.62 Elderslie Finance Corporation Ltd v Newspaper Pty Ltd [2007] FCA 500  15.248 Electrolux Home Products Pty Ltd v Delap Impex KFT [2015] FCA 62  22.112 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322  27.28, 27.28, 27.60

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Elite Protective Service Pty Ltd v Salmon (No 2) [2007] NSWCA 373  28.69 Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709  29.19 Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347  11.72 Elliott v R [2007] HCA 51  23.33 Ellis v Scott [1964] 2 All ER 987  24.7 — v Wallsend District Hospital (1989) 17 NSWLR 553  22.50 Email Finance Ltd v Registrar of Titles (VSC, Tadgell J, No 5636/81, 1 September 1982, unreported)  14.3 Emanuel v Emanuel [1982] 2 All ER 342; [1982] 1 WLR 669  18.40 — v Symon [1908] 1 KN 302  24.97 Embrey v Smart [2014] QCA 75  5.53 EMI Ltd v Pandit [1975] 1 WLR 302  15.232 EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980  28.113, 28.117 Energizer Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2016] FCA 347  10.79 Energy Drilling Inc v Petroz NL (1989) ATPR 40-954  10.146 English v Emery Reimbold & Strick Ltd; DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd, Verrechia (t/as Freightmaster Commercials) v Metropolitan Police Comr [2002] 3 All ER 385; [2002] EWCA Civ 605  28.73 English v Emery Richmond & Strick Ltd [2002] 1 WLR 2409; [2002] EWCA Civ 605  3.89 Enoch and Zaretzky, Bock & Co’s Arbitration, Re [1910] 1 KB 327; [1908–10] All ER Rep 625  11.11 Ensham Resources Pty Ltd v AIOI Insurance Co Ltd (2012) 295 ALR 99; [2012] FCAFC 191  16.55, 16.76 Entick v Carrington [1765] EWHC KB J98  15.237 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 188 ALR 392  18.5, 18.7, 18.8, 18.32 — v Pannowitz (2006) 164 A Crim R 325; [2006] NSWLEC 219  24.73 Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; [1989] FCA 1520  10.155 Equus Financial Services v Jackson (1994) ASC 56-288  14.56 Equuscorp Pty Ltd v Orazio [1999] QSC 354  15.224 Ernst & Young v Butte Mining plc [1996] 2 All ER 623  14.7 Erpen v Ig Markets Ltd [2016] WASC 35  6.42

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Erskine v McDowell [2001] QDC 192  15.41 ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284; [2004] CP Rep 9  21.4 Essential Beauty Franchising (WA) Pty Ltd v Pilton Holdings Pty Ltd [2014] SASC 141  28.105, 28.110, 28.127 Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1993] 3 VR 642  17.56 — v Federal Commissioner of Taxation (1999) 201 CLR 49  17.7 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 150 ALR 117  17.7 — v — (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67  16.2, 16.3, 16.5, 16.6, 16.11, 16.47, 16.54, 16.74 — v Plowman (1995) 183 CLR 10  3.49, 3.59, 3.66, 3.99, 15.184, 29.46 Essotec Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12  17.56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196  9.44 Etna v Arif [1999] 2 VR 353  28.273, 28.275 Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454  24.11 Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46  24.72 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6  10.65, 10.75 — v Robb Evans of Robb Evans and Associates [2010] HCA 6  8.31 European Hire Cars Pty Ltd v Beilby Poulden Costello Lawyers [2009] NSWSC 526  14.52 Eustice v Barclays Bank [1995] 1 WLR 1156 (CA); [1995] 2 BCLC 630  16.80, 16.81, 16.82 Evans v Bartlam [1937] AC 473  9.42, 9.45 — v Chief Constable of Surrey Constabulary (A-G intervening) [1989] 2 All ER 594  19.5 — v Evans (Succession) [1985] 3 All ER 289; [1986] 1 WLR 101  28.229 — v Staunton [1958] Qd R 96  18.3 Evans Deakin Pty Ltd v Siebel Furniture Ltd [2003] FCA 282  28.55 Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349  10.50 Ewin v Vergara (No 2) (2012) 209 FCR 288; 300 ALR 667; [2012] FCA 1518  18.24 Exagym Pty Ltd v Professional Gymnasium Equipment Co Pty Ltd [1994] 2 Qd R 6  18.1 — v — Ltd (No 2) [1994] 2 Qd R 129  18.1 Exhibit Exhibition & Publishing Pty Ltd v Consolidated Business Media Pty Ltd [2006] WASC 26  23.3

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Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46  1.58, 5.90, 11.7, 11.35, 11.55, 15.65, 16.6, 16.97, 16.98, 16.117 Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355  22.62

F F, In Marriage of (2001) 161 FLR 189  11.88 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] 4 All ER 97  21.43, 21.44, 21.45, 21.94 FAI General Insurance Co Ltd v Burns (1996) ANZ Ins Cas 61-384  28.150 — v Ocean Marine Mutual Protection and Indemnity Association Ltd (1997) 41 NSWLR 559  14.70 — v Southern Cross Exploration NL (1988) 165 CLR 268  5.107, 11.53, 23.24 Fairclough Homes Ltd v Summers [2012] 1 WLR 2004; [2012] UKSC 26  14.67 Fairfield-Mabey v Shell [1989] 1 All ER 576  20.4 FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd, Re [2016] NSWSC 625  10.110, 10.116 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87  5.5, 5.23, 9.73, 9.80 Farah v Elias [2015] NSWSC 1417  28.55 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22  2.4 Fardon v Attorney-General (Qld) (2004) 223 CLR 575  19.47 Farrar v Julian-Armitage [2015] QCA 289  28.310 Farrow Mortgage Services Pty Ltd v Webb (1995) 13 ACLC 1329  16.86 Farrow Mortgage Services Pty Ltd (in liq) v Griggs (SASC, Prior J, 25 March 1992, unreported)  9.45 — v Webb (1996) 39 NSWLR 601  16.86, 16.89, 16.90, 16.91, 16.92, 16.93 Fazil-Alizadeh v Nikbin (1993) Times, 19 March  17.78 FC Shepherd & Co Ltd v Jerrom [1987] QB 301; [1986] 3 All ER 589  22.40 Federal Bank of the Middle East v Hadkinson [2000] 2 All ER 395; [2000] 1 WLR 1695  10.105 Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499  15.42 — v Industrial Equity Ltd (2000) 98 FCR 573  25.24 — v Myer Emporium Ltd (No 1) (1986) 160 CLR 220  24.9 — v — (VSC, Ormiston J, 31 August 1991, unreported)  24.8

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— v Rio Tinto Ltd (2006) 151 FCR 341  16.112 — v Spotless Services Ltd (1996) 186 CLR 404  16.48 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 2) [2012] FCA 23  10.168 — v — (No 3) (2013) 300 ALR 741; [2013] FCA 85  24.98 Feldman v The Daily Beast Co Llc [2017] NSWSC 831  6.49 Felicity, Re; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19  28.264, 28.265, 28.270, 28.275, 28.279, 28.284, 28.289 Fellowes & Son v Fisher [1976] 1 QB 122  10.18 Fellows v Thornton (1884) 14 QBD 335  24.48 Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39  2.37, 2.39 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12   2.37 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6  28.60 Fermiscan Ltd v James [2009] NSWSC 462  17.55 Ferris v Plaister (1994) 34 NSWLR 474  29.43 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241; [2000] WASCA 69  10.151 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33  21.44 Fiduciary Ltd v Morning Research Pty Ltd [2007] NSWSC 432  15.111 Field v Commissioner for Railways New South Wales (1957) 99 CLR 285  17.1, 17.12, 17.14, 17.18, 17.23, 17.25, 29.14 Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809  7.86 Fila Canada Inc v Jane Doe & John Doe (1996) 35 IPR 104  15.264 Filmlab Systems International Ltd v Pennington [1994] 4 All ER 673  28.291 Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772; [1987] 1 WLR 670  10.19, 10.61 Finance & Guarantee Company Pty Ltd v Auswild (No 2) [2016] VSC 559  7.20, 7.22 Financial Wisdom Ltd v Newman (2005) 12 VR 79  25.61 Finch v Wilson (8 May 1987, unreported)  17.72 Finlay v Littler [1992] 2 VR 181  13.20 Finnegan (Timber) Pty Ltd v Beechey [1983] 2 VR 215  24.16

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Fiona Trust & Holding Corporation v Privalov [2007] 4 All ER 951; [2007] UKHL 40  29.38 First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266; [2004] NSWSC 846  17.3, 17.53 First Netcom Pty Ltd v Telstra Corporation Ltd (2001) 179 ALR 725; [2000] FCA 1269  10.67 Fish v Huon Channel and Peninsula Steam Company Ltd (1916) 12 Tas LR 7  28.98 Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53  24.47 Fitzroy All Pty Ltd v Mansfield [2014] WASC 498  10.65 Flaherty v Girgis (1978) 162 CLR 574; [1987] HCA 17  2.22, 2.25, 2.26 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377  3.89, 3.92 Flavel v South Australia (2008) 102 SASR 404  21.31 Fletcher v Autocar Transporters Ltd [1968] 2 QB 322; [1968] 1 All ER 726  21.34 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2002) 6 VR 1; [2002] VSCA 189  3.92 Flightline Ltd v Edwards [2003] EWCA Civ 63; [2003] 1 WLR 1200  10.102 Flint v Richard Busuttil & Co Pty Ltd (2013) 305 ALR 522; [2013] FCAFC 131  11.80, 23.31, 23.32 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268  5.54, 5.55 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773  14.55 Foley v Herald-Sun TV Pty Ltd [1981] VR 315  11.72 Folkes v Chadd (1782) 3 Doug KB 157  21.10, 21.20, 21.22 Foody v Horewood [2007] VSCA 130  25.47 Ford Motor Company of Australia Ltd v Tallevine Pty Ltd [2017] NSWSC 1703  17.85 Fordyce v Ho [2015] NSWCA 240  15.241 Forest Marsh Pty Ltd v Pleash (No 2) [2011] FCA 570  10.92 Forest Pty Ltd (recs and mgrs apptd) v Keen Bay Pty Ltd (1991) 4 ACSR 107  10.153 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44  2.8, 3.10, 3.16, 3.18, 19.48 Forrester v Harris Farm Pty Ltd (1996) 129 FLR 431  21.31 Forster v Friedland [1992] CA Transcript 1052  17.72, 17.78 — v Hunter New England Area Health Service [2010] NSWCA 106  10.177

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Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738  11.71 — v — (No 3) [2018] VSC 22  24.89 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397  28.149 Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506  14.3 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22  25.1, 25.7 — v Star Newspaper Co Ltd [1898] 1 QB 636  14.1, 14.8 Foxcraft v Ink Group Pty Ltd (1994) 15 ACSR 203  14.74 Foxe v Brown (1984) 58 ALR 542; 59 ALJR 186; [1984] HCA 69  5.53, 5.96, 11.40, 13.20 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340  28.212 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892  10.23 Freeman v Rabinov [1981] VR 539  11.52, 11.53, 11.58 Freshwater v Western Australian Assurance Co Ltd [1933] 1 KB 515  29.16 Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911  15.161, 15.164 Frigo v Culhaci [1998] NSWCA 88  10.100, 10.102, 10.104, 10.112, 10.122 Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359  15.68 Frugtniet v Migration Agents Registration Authority [2017] FCA 537  18.3 Frye v United States (1923) 293 F 1013  21.22 Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 28  15.159 Furber v Stacey [2005] NSWCA 242  28.66, 28.67 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593  11.63

G Gadget Shop Ltd v Bug Com Ltd [2001] FSR 383  15.244, 15.266 Gairy v A-G of Grenada [2001] UKPC 30; [2002] 1 AC 167  11.73 Galafassi v Kelly [2014] NSWCA 190  17.61, 17.62, 17.63 Galbally & O’Bryan v Easton [2016] NSWSC 77  24.59 Galea v Galea (1990) 19 NSWLR 263  11.19 Galka v O’Connor [1965] VR 361  1.62

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Gallagher v CSR Ltd (WASC, Ipp J, 31 March 1994, unreported)  28.140 — v Durack (1983) 45 ALR 53  24.92 Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30  25.57, 25.60, 25.61 Galvanized Tank Manufacturers’ Association’s Agreement, Re [1965] 1 WLR 1074  10.79 Gamble v Killingsworth [1970] VR 161  11.44 Gamlen Chemical Co (UK) Ltd v Rochem Ltd (No 2) (1980) 124 SJ 276  16.80 Gangemi v Osborne [2008] VSCA 221  24.8 Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200  14.29, 14.36, 25.64 Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; [1983] 2 All ER 770  10.16, 10.17, 10.18, 10.48 Garfinkel v MPC [1972] Crim LR 44  18.34 Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662  10.87, 15.249 Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682; [2008] NSWCA 211  14.70, 14.72 Gartner v Carter [2004] FCA 258  16.82 Garvin v Domus Publishing Ltd [1989] Ch 335; [1989] 2 All ER 344  15.188, 18.5 Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727  10.136 Gayle v Fairfax Media Publications Pty Ltd [2017] NSWSC 1261  11.44, 11.46 GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172  15.64 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; [2003] FCA 688  28.67 Gedala Pty Ltd v Gusodte Pty Ltd [2010] QSC 482  22.111 General Accident Insurance Co v Chrusz (1999) 45 OR (3d) 321  16.70 General Insurance Office of New South Wales v Healey (No 2) (1991) 22 NSWLR 380; [1991] NSWCA 103  23.21 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69  7.77, 9.73, 9.79, 9.80 Genetics Institute Inc v Kirin-Amgen Inc (1999) 92 FCR 106  25.94 Geoffrey W Hill & Assoc v King (1992) 27 NSWLR 228  8.14 Georges (Liquidator), Re; Sonray Capital Markets Pty Ltd (in liq) [2010] FCA 1371  17.27 Gerace v Auzhair Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181  26.12

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Geraldton Port Authority v The Ship ‘Kim Heng 1888’ (No 2) [2012] FCA 353  6.52 Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631  13.3 Ghoth v Ghoth [1992] 2 All ER 920  10.96, 10.137 Giannerelli v Wraith (1988) 165 CLR 543  11.20, 26.137, 26.138, 26.139 — v — (No 2) (1991) 171 CLR 592  16.104, 28.164 Gibbons v Duffell (1932) 47 CLR 520  3.101, 3.102, 3.105 Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52  23.11, 26.110 Gibson, Re (1991) 57 A Crim R 322  19.13 Gilchrist v R Wallace Mitchell Pty Ltd [1972] VLR 481  15.114 Giles v Grover (1832) 9 Bing 128; 131 ER 563  24.36 — v Randall (1915) 1 KB 290  28.107 Gilles v Palmieri [2016] NSWCA 219  5.2, 5.11, 5.95, 5.96, 5.97 Gillick v West Norfolk Health Authority [1986] AC 112  14.41 Gilligan v Nationwide News Pty Ltd (1990) 101 FLR 139  15.169, 19.21 Gillion Pty Ltd (Trustee) v Wet Fix Holdings Pty Ltd (No 2) [2016] FCA 1483  28.75 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 339  22.72 GIO General Ltd v Allen [2002] NSWCA 333  27.114 Gipp v R (1998) 194 CLR 106  11.9 Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416  28.293 Gladstone v Padwick (1871) LR 6 Ex 203  24.29 Glascott v Lang (1838) 3 My & Cr 451  10.32 Glass v Demarco [1999] FCA 842  17.70 GlaxoSmithKline Australia Pty Ltd v Ritchie (2008) 77 IPR 306; [2008] VSC 164  15.202 — v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363; [2013] FCAFC 102  10.58 Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510  26.115 Glencore International AG v Selwyn Mines Ltd (2005) 223 ALR 238; [2005] FCA 801  15.138 Glengallan Investments Pty Ltd v Andersen [2002] 1 Qd R 233; [2001] QCA 115  17.1, 17.18, 17.23, 17.37

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Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49  10.110, 10.116 Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122  16.33 Global Medical Solutions Australia Pty Ltd v Axion Molecular Pty Ltd [2013] NSWSC 665  15.191 Global Partners Fund Ltd v Babcock and Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196  3.116 Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80  7.5 Glynn v Houston (1836) 1 Keen 329  15.125 Gnitrow Ltd v Cape plc [2000] 3 All ER 763  17.17 Goater v Commonwealth Bank of Australia [2014] NSWCA 265  10.66, 24.8 Goddard v Nationwide Building Society [1987] QB 670; [1986] 3 All ER 264  16.115 Gold Reefs of Western Australia Ltd v Dawson [1897] 1 Ch 115  14.3 Goldberg v Ng (1994) 33 NSWLR 639  16.104 — v — (1995) 185 CLR 83; [1995] HCA 39  16.6, 16.99, 16.104, 16.105 Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWCA Civ 1740  15.210, 15.212 — v — [2012] EWHC 1152  15.210 Golovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132  9.85 Google Inc v Trkulja (aka Trkulja) (2016) 342 ALR 504; [2016] VSCA 333  6.49 Goold and Porter Pty Ltd v Housing Commission [1974] VR 102  13.5 Gooley v Breda Pty Ltd [2017] NSWSC 817  15.137, 15.138 Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427; [2005] NSWCA 27  27.69, 27.70 — v JB Wheatley & Co (13 January 2000, unreported)  9.100 Gore v Australian Securities and Investments Commission [2017] FCAFC 13  23.19 — v Van Der Lann [1967] 2 QB 31; [1967] 1 All ER 360  14.25 Gosper v Sawyer (1985) 160 CLR 548  5.116 Gotha City v Sotheby’s [1998] 1 WLR 114  16.104 Gould v Vaggelas (1985) 157 CLR 215  28.61, 28.62 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81  7.2 Goumas v McIntosh [2002] NSWSC 713  10.122

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Gow v Harker [2003] EWCA Civ 1160  23.16 GPI Leisure Corporation (in liq) v Yuill (1997) 42 NSWLR 225  17.14 Grace v Bennie [2017] NSWSC 172  14.13 Graham v Campbell (1878) 7 Ch D 490  10.64, 10.72 Graham Kemp v Michael J Ryan [2012] ACTCA 12  27.30 Grainger v Hill (1838) 4 Bing NC 212  14.60, 14.61 Grant v Australian Knitting Mills [1937] SASR 113  28.134, 28.136 — v Downs (1976) 135 CLR 674; 11 ALR 577  3.95, 16.6, 16.41, 16.46, 16.53, 16.64, 16.76 — v YYH Holdings Pty Ltd [2012] NSWCA 360  26.7 Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326  15.25 Graymarshall Pty Ltd v Director General of the Department of Environment, Climate Change and Water (2010) 78 NSWLR 605; 173 LGERA 258; [2010] NSWLEC 54  18.1 Grbavac v Hart [1997] 1 VR 154  27.8, 27.28, 27.66 Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485; [1981] 1 WLR 529  16.108 Great Eastern Cleaning Services Pty Ltd, Re [1978] 2 NSWLR 278  13.14, 13.21 Great Southern Ltd (in liq) (recs and mgrs apptd) v Young [2014] WASC 481  6.42 Greater Wollongong Corporation v Cowan (1955) 93 CLR 435  25.81, 25.83 Green v CGU Insurance (2008) 67 ACSR 105; [2008] NSWCA 148  10.165 — v Green (1912) 13 SR(NSW) 126  15.99 — v Hancocks [2000] Lloyd’s Rep 813  9.73 Greenlaw v R (1838) 1 Beav 137  15.207 Greenough v Gaskell [1824–34] All ER 767; (1833) 1 My & K 98  16.8, 16.10 Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669  21.14 Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd (1986) 67 ALR 93  15.170 Griebart v Morris [1921] KB 659  15.166 Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257; [2003] NSWCA 158  18.27 Griffiths v Malika Holdings (1997) 140 FLR 353  25.62, 25.66

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Grimshaw v Dunbar [1953] 1 QB 408; [1953] 1 All ER 350  9.50, 22.108 Grimwade v Victoria (1997) A Crim R 526  14.61 Grincelis v House (2000) 201 CLR 321; [2000] HCA 42  9.34, 23.55 Grofam Pty Ltd v Australia and New Zealand Banking Group (1993) 45 FCR 445  16.33 Grollo v Palmer (1995) 184 CLR 348  3.18 Grosvenor Hotel, London, Re [1963] 3 All ER 426  19.31, 19.38 Grosvenor Hotel, London, Re [1964] 1 Ch 464  19.31, 19.38 Grotherr v Maritime Timbers Pty Ltd [1991] 2 Qd R 128  13.29 Group 4 Securitas v Naidu [2005] NSWCA 470  10.182 Grynberg v Muller; Re Estate of Bilfeld [2002] NSWSC 350  28.89 GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146  16.71 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710  1.28 Guilfoyle v Bean [1926] VLR 498  13.7 Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716; [1987] 1 WLR 1027  16.86 Gunns Ltd v Marr [2005] VSC 251  7.79 Guss v Geelong Building Society (in liq) [2001] VSC 288  28.277 — v Veenhuizen (No 2) (1976) 136 CLR 47  28.242, 28.245 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4  3.62, 3.65, 19.47

H H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; [1979] FCA 74  7.21 H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] AC 563  22.47 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231  14.27 Habib Bank AG Zurich v Mindi Investment Ltd (1987) 131 Sol Jo1455, The Times, 9 October 1987 (EWCA Civ)  14.56 Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590  24.9 Hadid v Australis Media Ltd (NSWSC, Sperling J, 5 November 1996, unreported)  22.104 Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507  13.18

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Haigh v Haigh (1885) 31 Ch D 478  15.76 Hailstone, Re; Hopkinson v Carter (1910) 102 LT 877  10.73 Haj Ismail v Madigan (1982) 45 ALR 379  19.31, 19.34 Hakendorf v Colette [2004] EWHC 2821  15.249 Hale v Henke 201 US 43 (1906)  18.8 Halifax plc v Chandler [2001] EWCA Civ 1750  14.56 Hall v Foster [2012] NSWSC 974  24.61 — v Mercury Information Technology (South Australia) Pty Ltd [2002] FCA 272  14.74 Hally v Dennis (1955) 95 CLR 661  28.79 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372  1.65, 1.89, 11.57, 11.58 Halsey v Milton Keynes General NHS Trust; Steel v Joy [2004] 4 All ER 920; [2004] 1 WLR 3002; [2004] EWCA Civ 576  28.77, 29.52 Halverson v Dobler [2006] NSWSC 1307  21.83 Hamdan v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 642; [2004] FCA 1267  16.31 Hamersley Iron Pty Ltd v The National Competition Council (2008) 247 ALR 385; [2008] FCA 598  26.97 Hamilton v Oades (1989) 166 CLR 486  14.56 Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 1915; [2001] All ER (D) 258  25.64 Hammonds (A Firm) v Danilunas [2009] EWHC 216 (Ch)  9.101 Hamod v New South Wales [2011] NSWCA 375  3.137 Hancock Prospecting Pty Ltd v Rinehart (2017) 350 ALR 658; [2017] FCAFC 170  29.33, 29.37, 29.42 Hanisch v Strive Pty Ltd (1997) 74 FCR 384  28.235 Hanrahan v Ainsworth (1985) 1 NSWLR 370  14.60, 14.62 — v — (1990) 22 NSWLR 73  14.61, 14.63 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230  1.46, 11.3, 15.76 Hanson Construction Materials Pty Ltd v Davey (2010) 79 ACSR 668; [2010] QCA 246  15.224 Hardie Finance Corp Pty Ltd v CCD Australia Pty Ltd (1995) 67 FCR 594  16.55

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Hardy Bros v Hardy Bros [2008] NSWSC 1220  27.69 Harkianakis v Skalkos (1997) 42 NSWLR 22  24.73 Harman v Secretary of State for the Home Department [1983] 1 AC 280  3.49, 3.55, 15.171, 15.255, 20.76 Harmony Shipping Co SA v Davies [1979] 3 All ER 177; [1979] 1 WLR 1380  1.64, 3.99, 16.58 Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523  3.111, 10.156 Harrem Pty Ltd v Tebb [2006] NSWSC 1415  10.89 Harrington v Harrington (1996) 190 CLR 311  17.23 Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424  21.5 Harris v Caladine (1991) 172 CLR 84  3.15, 3.20, 14.30 — v Commercial Minerals Ltd (1996) 186 CLR 1  26.57 — v Villacare Pty Ltd [2012] NSWSC 452  28.266 Harris Scarfe Ltd (recs and mgrs apptd) (in liq) v Ernst & Young (No 10) (2006) 204 FLR 16; [2006] SASC 325  15.64 Harrison v Hockey [2007] All ER 336 (Ch)  9.53 — v Schipp [2002] NSWCA 78  26.91 — v — [2002] NSWCA 213  28.177, 28.178 — v Secretary, Department of Social Services [2018] FCA 110  22.108 Hartigan v International Krishna Consciousness [1999] NSWSC 57  9.57 Hartley Poynton Ltd v Ali (as executor and trustee of the estate of Rahmat Ali) [2005] VSCA 53  23.21, 23.61 Hartogen Energy Ltd (in liq) v Australian Gas Light Co (1992) 36 FCR 557; 109 ALR 177  16.6 Harvey v Phillips (1956) 95 CLR 235  11.62, 11.63 Harwood v The Trustee of the Property of John Mervyn Harwood (2015) 297 FLR 159; [2015] FCCA 1058  11.22 Hassoun v Wesfarmers General Insurance t/as Lumley General [2015] NSWCA 33  10.157 Hatchett v Bowater Tutt Industries Pty Ltd (No 1) (1990) 26 FCR 561  26.85 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69  15.138, 15.142 Hawick Jersey International v Caplan (1988) Times, 11 March  17.72 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699  15.115

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Hawkins v Clayton (1988) 164 CLR 539  26.17, 26.19, 26.21 Hawley v Luminar Leisure plc [2006] EWCA Civ 18  9.50 Hayden v Teplitzky (1997) 74 FCR 7; 154 ALR 497  10.87, 15.244 Haywood v Collaroy Services Beach Club [2005] NSWSC 1203  15.22, 15.100 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298  27.8, 27.9, 27.37, 27.39, 27.40, 27.42, 28.114 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36  15.181, 15.183, 15.184, 20.76 Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646  29.29 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254  14.10 Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499; [2009] QSC 195  10.85, 15.246 Heaton v AXA Equity & Law plc [2001] Ch 173  14.47 Heaven v Road & Rail Wagons Ltd [1965] 2 QB 355  5.109 Heavener v Loomes (1924) 34 CLR 306; [1924] HCA 10  10.12, 10.42 Hehir v Cmr of Police of the Metropolis [1982] 2 All ER 335; [1982] 1 WLR 715  19.41 Helliwell v Piggott-Sims [1980] FSR 582  22.69 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 32 ACSR 625; [1999] HCA 56  28.112, 28.213 Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1  21.32 — v Henderson [1843] EngR 917  7.23 — v — [1843–1860] All ER Rep 378; (1843) 3 Hare 100; 67 ER 313  13.9, 14.56, 26.76, 26.101, 26.102, 26.103, 26.108, 26.146 Henley v Queensland [2005] QDC 94  28.129 Hennessy v Wright (No 2) (1888) 24 QBD 445  15.106 Henriksen v Pires [2011] EWCA Civ 1720  9.50 Henry v Henry (1996) 185 CLR 571  5.158, 5.159, 5.164, 14.57, 14.70, 14.71 Herald & Weekly Times Ltd v Hawke & Kornhauser [1984] VR 587  15.95 Herniman v Smith [1938] AC 305  14.63 Heydon v Teplinzky (1997) 74 FCR 7  15.249, 15.251

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Heyman v Darwins Ltd [1942] AC 356  29.42 Hickman v Taylor 329 US 495 (1947)  16.10, 16.69 Hiemann v Commonwealth (1935) 54 CLR 126  15.123 High Top Pty Ltd v Kay Sheila Lawrence t/as ‘Kay Lawrence Accountancy’ [2010] QCA 270  5.95, 5.97, 5.106 HIH Casualty & General Insurance Ltd v Wallace (2006) 68 NSWLR 603; [2006] NSWSC 1150  29.38 HIH Insurance Ltd (in liq), Re; De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1; [2014] NSWSC 774  26.134 Hili v R (2010) 242 CLR 520; [2010] HCA 45  24.91 Hill (on behalf of Yirendali People Core Country Claim) v Queensland [2015] FCA 300  14.10, 14.11 Hilman v Box No 5 [2014] ACTSC 150  28.110 Hilton v Wells (1985) 5 FCR 296  19.13 Hinch v Attorney-General (Vic) (1987) 164 CLR 15  24.78 Hine v Hine [1969] QWN 38  24.14 Hip Foong Hong v H Neotia and Co [1918] AC 888  23.43 Ho v Fordyce [2015] NSWSC 544  15.241 Hobson v Thelluson (1867) LR 2 QB 642  24.26 Hodgson v Amcor Ltd [2011] VSC 63  20.5 — v — [2011] VSC 272  21.7 — v — (No 4) (2011) 32 VR 568; [2011] VSC 269  16.107, 16.117 — v — (No 10) [2012] VSC 294  11.22 Hoefler v Tomlinson (1995) 60 FCR 452  17.10, 17.79 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21  3.59, 3.66, 15.206 — v Hinch (2011) 243 CLR 506; [2011] HCA 4  3.65, 3.66 Hole v Robison Bros & Co Pty Ltd [1956] VicLawRp 2; [1956] VLR 13  22.26, 22.29 Holland v Jones (1917) 23 CLR 149  21.20 — v Sammon (1972) 4 SASR 1  15.161 Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35  26.80

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Holloway Nominees (Qld) Pty Ltd v George (No 2) [2008] QSC 71  27.28 Holman v Homan (1964) 5 FLR 406  22.50 Holtby v Hodgson (1889) 24 QBD 103  24.48 Home and Overseas Insurance Co v Mentor Insurance Co (UK) Ltd (in liq) [1989] 3 All ER 74; [1990] 1 WLR 153  9.97 Home Office v Harman [1982] 1 All ER 532  15.180, 15.181 Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512  17.1, 17.35 Hong Kong International Credit Ltd v Registrar of Titles [2012] WASC 17  8.26 HongKong Bank of Australia Ltd v BPTC Ltd (in liq) [1995] Aust Torts Reports 81-358  9.83 Hooper v Kirella Pty Ltd (1999) 96 FCR 1; [1999] FCA 1584  15.126, 15.134, 15.138 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194  29.16, 29.19 Hopkinson v Lord Burghley (1867) 2 Ch App 447  15.185 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47  5.91, 5.95, 5.99, 5.103, 5.104, 5.110, 5.112 Horne-Roberts v Smithkline Beecham plc [2001] EWCA Civ 2006; [2002] 1 WLR 1662  13.31 Horseshoe Pastoral Co Pty Ltd v Murray Smith t/as South Coast Tile and Slate Co [1995] NSWCA 200  27.27 Horsley v Cox (1869) LR 4 Ch App 92  24.47 Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545  10.100 Horton v Jones (No 2) (1939) 39 SR (NSW) 305  1.17 Hoser v Hatcher [1999] NSWSC 527  9.57 Hoser and Kotabi Pty Ltd [2001] VSC 443  24.73 Hotline Communications Ltd v Hinkley (1999) 44 IPR 445; [1999] VSC 74  10.69 Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59  2.28 Hourigan v The Trustees Executors and Agency Company Ltd (1934) 51 CLR 619  26.12 House v R (1936) 55 CLR 499; [1936] HCA 40  10.94, 25.26, 25.27, 25.61, 25.68, 28.81 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378  3.84, 3.88 Howard v Power [2013] VSC 198  5.95, 5.99 Howarth v Adey [1996] 2 VR 535  1.29

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Howell v Metropolitan District Railway Co (1881) 19 Ch D 508  24.48 Howglen Ltd, Re [2001] 1 All ER 376  15.147 Hoxton Park Residents Action Group Inc v Liverpool City Council [2014] NSWSC 372  15.19 Hoystead v Commissioner of Taxation (1921) 29 CLR 537  26.93 — v — [1926] AC 155  26.123 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87  10.151 Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 7) (2013) 217 FCR 1 at 23; [2013] FCA 1020  19.20 Huang v Attapallil (No 2) [2017] NSWSC 1382  11.44 — v University of New South Wales (No 3) (2006) 154 FCR 16; [2006] FCA 626  11.9, 11.11, 11.19 Hubbard v Vosper [1972] 2 QB 84; [1972] 1 All ER 1023  10.11, 10.28 Huddart Parker Ltd v Ship Mill Hill and her Cargo (1950) 81 CLR 502  3.116, 5.163 Hudspeth and Scholastic Cleaning and Consultancy Services (No 4) [2013] VSC 14  28.7 Hughes, Re [1986] 2 NZLR 129  19.13 Hughes v Justin [1894] 1 QB 667  9.40 — v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257  25.60 — v Pump House Hotel Co Ltd (No 2) [1902] 2 KB 485  13.14 — v Western Australian Cricket Association (Inc) (1986) 66 ALR 541  15.148 — v Westpac Banking Corporation [2010] QSC 274  7.74 Hughes, Re; Ex parte Westpac Banking Corporation (FCA, Merkel J, 28 November 1997, unreported)  24.10 Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303  15.131 Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346  14.28 Hulbert and Crowe v Cathcart [1896] AC 470  24.14 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209; [2015] FCA 1275  24.84 Humphreys v Humphreys [2016] VSC 637  17.55, 17.60 Hunt & Winterbotham (West of England) Ltd v BRS (Parcels) Ltd [1962] 1 QB 617  7.15 Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727  11.79, 11.82, 14.31, 14.36, 14.68, 26.135

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— v Hanson [2014] NSWCA 263  5.95, 5.99, 5.102 — v Leahy (1999) 91 FCR 214  3.121 Huntington v Attrill [1893] AC 150  24.98 Huntingdon Life Sciences Group v Stop Huntingdon Animal Cruelty (No 2) [2004] EWHC 3145 (QB)  9.48, 9.54 Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242  27.27, 28.120, 28.145 Huntsman Corporation Australia Pty Ltd v Brookfield Rail Pty Ltd [2012] WASC 70  17.26 Hydrosan, Re (1991) BCLC 418  16.94

I IBM United Kingdom Ltd v Prima Data International Ltd [1994] 4 All ER 748; [1994] 1 WLR 719  18.9 IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] WASC 279  14.8 Icebird Ltd v Winegardner [2009] UKPC 24  14.33 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; [1992] FCA 474  10.79 ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725  9.99, 9.101 Idoport Pty Ltd (in liq), Re [2015] NSWSC 1412  28.227, 28.228 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427  29.52 — v — [2001] NSWSC 744  10.139, 10.148, 10.152, 10.154, 10.159, 10.162 — v — [2002] NSWCA 271  10.171 IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1; [2010] FCAFC 31  27.87 Ilievski v Zhou [2014] VSC 442  28.277 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407  5.95, 5.98, 5.99, 5.101, 5.102, 5.103, 5.106, 11.40 Indicii Salus Ltd v Chandrasekaran [2007] EWHC 406  15.241 Infabrics Ltd v Jaytex Ltd [1985] FSR 75  15.83 Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30  2.32 Ingot Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199  28.146 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2002] NSWSC 609  10.163 — v — [2004] NSWSC 1219  20.69

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International Finance Corp v Utexafrica Sprl [2001] All ER (D) 101 (May); [2001] CLC 1361  9.45 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49  3.10, 3.68, 3.69, 3.72, 3.73, 3.75, 10.80 International Litigation Partners Pte Ltd v Chameleon Mining NL (2011) 82 ACSR 517  28.198 — v Chameleon Mining NL (recs and mgrs apptd) (2012) 246 CLR 455; [2012] HCA 45  28.198 Interpharma Pty Ltd v Commissioner of Patents (2008) 79 IPR 261; [2008] FCA 1498  10.47 Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896  17.56 IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147  15.68 Irish Bank Resolution Corporation Ltd v Quinn [2015] IEHC 175  15.94 Isaacs v Ocean Accident and Guarantee Corporation Ltd (1958) SR (NSW) 69  26.94, 26.122, 26.123 ISTIL Group Inc v Zahoor [2003] 2 All ER 252; [2003] EWHC 165  15.65, 16.57, 16.58, 16.115 ITC Film Distributors Ltd v Video Exchange (No 2) (1982) 126 SJ 672  15.267

J J v Lieschke (1987) 162 CLR 447  3.73, 3.81, 3.82 J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23  27.40 J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243  24.9 — v — (No 2) [1983] 2 Qd R 255  24.7 J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547  28.24 J Walls Ltd v Legge [1923] 2 KB 240  24.62 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27  9.42, 9.44, 9.45, 9.54, 25.61 Jackson v Goldsmith (1950) 81 CLR 446  26.63, 26.68, 26.75, 26.77, 26.88, 26.93, 26.95, 26.122 — v Hamlyn [1953] 1 All ER 887; [1953] 2 WLR 709  10.59 — v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23  10.97, 10.98, 10.100, 10.120, 10.123, 11.80 — v Wells (1985) 5 FCR 296  19.58 Jacobs v Booth’s Distillery Co (1901) 8S LT 262  9.73 Jaffarie v Director General of Security (2014) 313 ALR 593; [2014] FCAFC 102  19.31 Jago v District Court of New South Wales (1989) 168 CLR 23  14.30, 14.31, 14.33

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Jamaica Railway v Colonial Bank (1905) 1 Ch 677  22.112 Jameel v Dow Jones and Co [2005] EWCA Civ 75  14.48, 14.49 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353  2.50 Jamieson v Commissioner for Internal Revenue (2007) 210 FLR 210; [2007] NSWSC 324  5.136 — v R (1993) 177 CLR 574  3.103, 3.105 Janov v Morris [1981] 3 All ER 780  26.131 Jardine and Jardine Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409  25.22 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44  19.47 Jarvie v Magistrates Court (Vic) [1995] 1 VR 84  19.13 Jazabas Pty Ltd v Haddad (2007) ACSR 276; [2007] NSWCA 291  10.155, 10.163 JC Techforce Pty Ltd v Pearce (1996) 138 ALR 522  10.87 J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (1992) 38 FCR 452  16.57, 16.64 Jeannot v Furst (1909) 25 TLR 424  24.97 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372  9.93 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43  10.156, 10.157, 10.167 Jeffree v Jeffree (1910) 54 Sol Jo 655  22.26, 22.29 Jemella Australia Pty Ltd v Internet Marketing Pty Ltd [2008] FCA 13  15.240, 15.241 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681  25.79, 25.80 Jennison v Baker [1972] 1 All ER 997  24.74 Jenton Overseas Investment Pty Ltd v Townsing (2008) 21 VR 241; [2008] VSC 470  24.102 Jess v Scott (1986) 12 FCR 187  25.60 Jet West Ltd v Haddican [1992] 2 All ER 545; [1992] 1 WLR 487  10.96, 10.115 Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87  3.41 JL Young Manufacturing Co Ltd, Re [1900] 2 Ch 753  8.14 Joachimson v Swiss Bank Corp [1921] 3 KB 110  24.50 John v Rees [1970] Ch 345; [1969] 2 All ER 274  13.37 John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465  3.49, 3.65, 3.66

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John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346; 82 ALR 1  3.95, 3.108, 15.214, 15.215, 15.216 John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131  3.62, 3.64 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101  3.50, 3.57, 3.61 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36  2.18, 2.27, 2.47 John Walker and Sons Ltd v Rothmans International Ltd [1978] FSR 357  10.18 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1; [2001] 1 All ER 481  13.9, 14.44, 26.115 — v Johnson (2000) 201 CLR 488; [2000] HCA 48  3.32 — v Ribbins (Sir Francis Pittis & Son (a firm), third party) [1977] 1 All ER 806; [1977] 1 WLR 1458  28.65 Johnston v Holland [2016] VSC 340  15.130 — v Johnston (2016) 14 ASTLR 123; [2016] NSWCA 52  27.78 — v Nationwide News Pty Ltd [2005] NSWCA 17  23.1 Joint Stock Company “Aeroflot Russian Airlines” v Berezovsky [2013] EWCA Civ 784  29.37 Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208  27.87, 27.88 Jokai Tea Holdings Ltd, Re [1993] 1 All ER 630  26.131 — v Bradley (No 2) [2003] NSWCA 258  27.37, 27.39 — v Kaney [2011] UKSC 13; [2011] 2 AC 398; [2011] 2 All ER 671  21.99, 21.100, 21.101, 21.102, 21.103, 21.104, 21.106 — v Millward [2005] 1 Qd R 498; [2005] QCA 76  27.55 — v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155  11.11, 11.19, 22.24 — v Stone [1894] AC 122  9.71 — v Treasury Wine Estates Ltd (2016) 241 FCR 111; [2016] FCAFC 59  15.14, 15.119, 15.227 — v University of Warwick [2003] All ER (D) 34 (Feb); [2003] 1 WLR 954; [2003] EWCA Civ 151  1.71, 1.87, 14.68, 22.75 Jordan v Binckes (1849) 13 QB 757; 116 ER 1453  24.16 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154; [1941] 2 All ER 165  22.40 Joseph Crosfield & Sons v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378  21.13 Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in liq) v Jones [2013] NSWSC 280  14.23

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Jovanovic v Woods [2001] TASSC 96  21.96 JP Morgan Chase Bank v Springwell Navigation Corporation [2006] EWHC 2755  21.14 JP Morgan Chase Bank, National Assocation Flecher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31  23.32 JRL, Re; Ex parte CJL (1986) 161 CLR 342  3.97, 11.11 JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411  11.57 JT Nominees Pty Ltd v Macks (2007) 97 SASR 471  9.95 JTA Le Roux Pty Ltd as trustee for the FLR Family Trust v Lawson (No 2) [2013] WASC 373  10.61, 10.62 Judiciary Act & Navigation Act, In re (1923) 32 CLR 455; [1921] HCA 20  23.18, Judiciary and Navigation Acts, Re (1921) 29 CLR 257; [1921] HCA 20  3.14, 25.21 Jung v Son [1998] NSWCA 120  3.92

K K & M Prodanovski Pty Ltd v Calliden Insurance Ltd [2011] NSWSC 738  17.48 K R Wood & Co, Re [1962] Tas SR 227  25.43 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24  2.8, 2.17, 3.10, 19.47, 19.51 Kalenik v Apostolidis (No 3) [2009] VSC 475  27.23, 27.25 Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902  23.12 Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling) [2016] VSC 404  16.70, 16.73 — v Commonwealth of Australia (No 3) (Cabinet document: further evidence ruling) [2016] VSC 438  19.4, 19.30, 19.33, 19.38 — v Commonwealth of Australia (No 4) (PII — sample foreign relations claims) [2016] VSC 492  19.20, 19.21 — v Commonwealth of Australia (No 5) (Cabinet documents: substantive ruling) [2016] VSC 595  19.28 Kanda v Government of Malaya [1962] AC 322  3.71 Kang v Kwan [2001] NSWSC 698  16.80, 17.73 Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90; 71 ALR 109  19.11, 19.12 Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336; [2009] NSWCA 145  18.26 Katsaounis v Belehris [1994] SASC 4884  28.133

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Kaur v Kooner [2013] VCC 1788  9.47 Kazal v Thunder Studios Inc (California) [2017] FCA 238  24.8, 24.91 — v — [2017] FCAFC 111  11.70, 11.75, 24.89, 24.91 KC Park Safe (SA) Pty Ltd, Kamer & Lester v Adelaide Terrace Investments Pty Ltd (FCA, Mansfield J, 17 September 1998, unreported)  26.121 Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288  21.81 Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278  28.253 — v Kelly (1989) 50 SASR 477  24.18 Ken Tugrul v Tarrants Financial Consultants Pty Ltd (No 4) [2014] NSWSC 291  10.168, 10.169 Kendirjian v Lepore (2017) 343 ALR 86; [2017] HCA 13  26.139 Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337  16.6, 16.31, 16.76 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 192 CLR 413; [1999] HCA 25  26.20 Ketchum International plc v Group Public Relations Holdings Ltd [1996] 4 All ER 374  10.137 Ketteman v Hansel Properties Ltd [1987] AC 189  20.69 Khan v Khan [2015] EWHC 2625  26.131 Khanna v Lovell White Durrant (a firm) [1994] 4 All ER 267; [1995] 1 WLR 121  15.148 — v Sabi Foods International (Aust) Pty Ltd [2017] NSWSC 573  24.28 Kheirs Financial Services Pty Ltd v Aussie Home Loans Ltd (2010) 31 VR 46; [2010] VSCA 355  28.65, 28.66, 28.67 Khouri v National Bank Ltd [2007] NSWSC 987  14.23 Kimberly-Clark Australia Pty Ltd v Carter Holt Harvey Tissue Australia Ltd (1997) 37 IPR 293  15.176 King v Allianz Australia Ltd [2015] QCA 101  28.135, 28.176 — v Jetstar Airways Pty Ltd [2012] FCA 413  28.236 — v Linney [2009] NSWSC 911  29.55 — v McLellan [1974] VR 773  18.12 King of The Two Sicilies v Willcox (1851) 1 Sim NS 301; 61 ER 116  18.6 Kingelty v Stockley [2017] NSWSC 671  24.28 Kioa v West (1985) 159 CLR 550  3.71, 3.73

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Kirby v Centro Properties Ltd (2008) 253 ALR 65  13.49 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485  21.44 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1  2.8, 3.10 — v Industrial Relations Commission of New South Wales [2010] HCA 1  12.5, 12.8 — v PBP Accounting Solutions Pty Ltd [2015] VSC 173  23.55 Kirkup v British Rail Engineering Ltd [1983] 2 All ER 1334  15.109 Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461; [1985] HCA 27  2.9, 2.55 Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21; [2002] NSWCA 395  28.223 Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433  28.178 Kizon v Palmer (1997) 75 FCR 261  15.168 Knauf UK GmbH v British Gypsum Ltd [2001] All ER (D) 338 (Oct); [2001] EWCA Civ 1570  10.87 Knight v Beyond Properties Ltd [2005] FCA 764  10.157 — v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28  10.169, 28.14, 28.206, 28.207, 28.210, 28.211, 28.217 Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150  24.102 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993  26.120 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533  10.10, 10.40 Kong v Minister for Immigration and Citizenship [2011] FCA 1345  23.11 Konigsberg, Re [1989] 1 WLR 1257  16.84 Koowarta v Bjelke-Petersen (1988) 92 FLR 105  19.34 Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) (2008) 247 ALR 781; [2008] FCA 701  17.6, 17.23, 17.60 Kosciusko Thredbo Pty Ltd v New South Wales [2002] NSWSC 329  17.48 Kostokanellis v Allen (1974) VR 596  9.42, 9.48, 9.50 Kowalski v MMAL Staff Superannuation Fund Pty Ltd ACN 064 829 616 (2007) 242 ALR 370; [2007] FCA 1069  3.111, 3.121 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76  10.142, 10.154, 10.155 Kronisch v United States 150 F 3d 112; 126 (2nd Cir 1998)  15.77

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Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34  22.49, 26.65, 26.69, 26.84, 26.93, 26.94, 26.96, 26.116, 26.143 Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 133 FCR 582; [2004] FCA 18  28.256, 28.296 Kupresak v Clifton Bricks (Canberra) Pty Ltd (1984) 57 ACTR 32  15.109 Kuruma v R [1955] AC 197; [1955] 1 All ER 236  22.69 Kylik Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCA 114  21.41

L L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114  3.125 L (a Minor) (police investigation: privilege), Re [1997] AC 16; [1996] 2 All ER 78  16.6, 16.42, 17.80 L E Cattan Ltd v A Michaelides & Co [1958] 2 All ER 125  28.67 Lace, In the Marriage of (1981) FLC 91-080  17.80 Lackersteen v Jones (No 2) (1988) 93 FLR 442  28.63 Ladd v London Road Car Co (1900) 110 LT Jo 80  28.186 Lai v Chamberlains [2007] NZLR 7  21.95 Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636  10.105 Lake v Crawford (No 2) [2010] NSWSC 419  10.112 Lamond (No 4), Re [2017] FCA 820  15.240 Lamshed v Lamshed [1962] SASR 190  1.20, 11.29 Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2017] QSC 251  7.16, 7.74 Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14  24.9 Lane v Jurd (No 2) (1995) 40 NSWLR 708  20.73 — v — [1996] NSWSC 5  20.73 — v Registrar of the Supreme Court of New South Wales (1981) 35 ALR 322  15.168, 15.170 Langdale v Danby (1982) 1 WLR 1123  14.23 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25  2.4, 2.18 Langford v Cleary (No 2) (1998) 8 Tas R 52  17.53 Lansing Linde Ltd v Kerr [1991] 1 All ER 418; [1991] 1 WLR 251  10.37

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Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 268  29.44 — v — [2011] NSWSC 1305  14.74 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217  23.33, 23.43, 23.44, 23.45 Latham v Hubbard; Estate of Ross [2014] NSWSC 805  28.223 Latoudis v Casey (1990) 170 CLR 534  28.7, 28.15, 28.16, 28.50 Latoudis v Casey (1990) 170 CLR 534  9.42 Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34  9.44 Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4  2.24, 2.27, 2.28, 2.34, 5.2, 5.54, 5.115, 5.116, 24.97 Lavecky v Visa Inc [2017] FCA 454  15.227, 15.228 Law v St Margarets Insurances Ltd [2001] EWCA Civ 30; [2001] All ER (D) 97 (Jan)  9.44 Law Institute of Victoria Ltd v DCT (2009) 224 FLR 37  19.1 Lawrence v Lord Norreys (1890) 15 AC 210  11.79 Lawson Products, Inc v Avnet, Inc 782 F 2d 1429 (7th Cir 1986)  10.53 Lazarus v Azize [2015] ACTSC 344  14.50 Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391  27.64, 27.66, 27.87 Leary v FCT (1980) 32 ALR 221  16.39 Lebon v Lake Placid Resort [1995] 1 Qd R 24  15.174 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2012] NSWSC 913  15.25 Lee v Abedian [2017] QSC 22  3.111 — v Angas (1866) LR 2 Eq 59  15.168 — v Kennedy [2001] NSWCA 8  28.107 — v Showmen’s Guide of Great Britain [1952] 2 QB 329  29.21 Leerdam v Noori [2009] NSWCA 90  14.60 Leeth v Commonwealth (1991) 174 CLR 45  3.21 Leetham v Leetham [2011] NSWSC 201  24.71 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314  29.31 Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126  23.1, 23.8

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Leggott v Great Northern Railway Co (1876) 1 QBD 599  26.70 Leichhardt Municipal Council v Green [2004] NSWCA 341  17.65, 27.15, 27.21, 27.22, 27.31, 27.32, 27.33, 27.113 Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458  15.21, 15.23, 15.24 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300  28.256, 28.257, 28.259, 28.284, 28.288 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200  9.68, 11.44, 11.46 Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674  28.255, 28.257, 28.258, 28.267, 28.282, 28.284, 28.285, 28.286, 28.291, 28.293 Levis v McDonald (1997) 75 FCR 36  15.134 Levy v Ellis-Carr [2012] EWHC 63 (Ch)  9.5 — v Victoria (1997) 189 CLR 579  13.23, 13.24 Lewis (in their capacity as joint and several liquidators of Warehouse Sales Pty Ltd) (in liq) v LG Electronics Australia Pty Ltd (2016) 111 ACSR 538; [2016] VSC 63  28.227, 28.228 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528  27.70 — v Heffer [1978] 3 All ER 354  10.49 — v Nortex Pty Ltd [2002] NSWSC 1245  17.28 — v Nortex Pty Ltd (in liq) [2006] NSWSC 480  28.227 Lexcray Pty Ltd v Northern Territory (2015) 292 FLR 447; [2015] NTSC 11  17.45, 17.68 Leybourne v Habkouk [2012] NSWCA 212  26.122 LFDB v SM [2017] FCAFC 178  11.44, 24.106 — v — (No 3) [2017] FCA 80  24.106 Li v New South Wales [2013] NSWCA 165  10.139, 10.145, 10.147 Liao v New South Wales [2014] NSWCA 71  26.80, 26.136 Liberty Financial Pty Ltd v Scott [2002] FCA 345  15.241, 15.246 Libke v R (2007) 230 CLR 559; [2007] HCA 30  14.54 Licul v Corney (1976) 180 CLR 213; [1972] HCA 6  25.19 Liesfield v SPI Electricity Pty Ltd [2013] VSC 634  15.37 Lilly Icos Ltd v Pfizer Ltd [2002] EWCA Civ 02; [2002] 1 All ER 842; [2002] 1 WLR 2253  15.196, 15.206

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Limpus v Queensland [2004] 2 Qd R 161  13.29 Lin v Borrowdale [2011] NSWCA 65  24.48 Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643  15.46 Linkenholt Pty Ltd (ACN 005 710 181) v Quirk [2000] VSC 166  9.42, 9.48, 9.54 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508  22.111, 26.117, 26.121 Linsley v Petrie [1998] 1 VR 427  26.70 Lion-Dairy and Drinks Pty Ltd v Sinclair Knight Merz Pty Ltd [2014] FCA 114  15.174 Lipohar v R (1999) 200 CLR 485; [1999] HCA 65  2.22 Liquorland (Aust) Pty Ltd v Anghie (2001) 20 ACLC 58; [2001] VSC 362  10.17 Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27; [2003] VSC 73  16.111 Lister & Co v Stubbs (1890) 45 Ch D 1  10.95 Litherland v Litherland and Randage [1963] QWN 24  24.14 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36  21.5 Litmus Australia Pty Ltd v Canty [2006] NSWSC 196  28.275, 28.278 Little v Commonwealth (1947) 75 CLR 94  9.80 — v Law Institute of Victoria (No 3) [1990] VR 257  14.63 Littore v Rabobank Australia Ltd [2016] VSCA 258  25.79 Liu v Age Company Ltd (2012) 285 ALR 386; [2012] NSWSC 12  15.214, 15.215, 15.216 — v — [2015] NSWSC 276  15.216 — v — [2016] NSWCA 115  3.108, 15.214, 15.215, 15.216, 26.116 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17  3.39 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93  10.151, 10.152 Llandudno Urban District Council v Woods [1899] 2 Ch 705  10.59 Lloyd v Mostyn (1842) 10 M & W 478  16.115 LM v K Lawyers (No 2) [2015] WASC 245  28.310 LO v NTA [2017] NTSC 24  17.65 Locabail International Finance Ltd v Agroexport, The Sea Hawk [1986] 1 All ER 901  10.19

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Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451  3.42 Lock International plc v Beswick (1989) 16 IPR 497; [1989] 3 All ER 373; [1989] 1 WLR 1268  10.69, 15.236, 15.246, 15.254, 15.266 Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752  10.84 Lockwood & Lockwood v Police [2010] SASC 120  22.24 Lockyer v Ferryman (1877) 2 App Cas 519  26.68 Logicrose Ltd v Southend United Football Club [1988] 1 WLR 1256  14.41 Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81  10.145 Lombard Insurance Co (Australia) Ltd v Mara Pastro (1994) 175 LSJS 448  28.66 London and County Banking Co v Lewis (1882) 21 Ch D 490  10.80 London Scottish Benefit Society v Chorley (1884) 13 QBD 872  28.242, 28.244 Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 438  25.24 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545  15.243 Longhurst v Hunt [2004] NSWCA 91  20.73 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627  15.45, 15.46 Lonrho plc v Fayed [1992] 1 AC 448  9.83 — v — (No 4) [1994] 1 All ER 870  19.41 Lord v Comr of Australian Federal Police (1997) 74 FCR 61  19.12 Lord Albinger v Ashton (1873) 17 LR 358  21.88 Louis Vuitton Malletier SA v Knierum [2004] FCA 1584  23.48 Love v Thwaites [2014] VSCA 56  10.65 Lowe v Lowe (No 3) [2015] NSWSC 1800  27.24, 27.25 — v Mack Trucks Australia Pty Ltd [2001] FCA 388  11.45 LPD Holdings (Aust) Pty Ltd v Phillips, Hickey and Toigo [2013] QCA 305  28.146 — v Russells [2017] QSC 45  26.121 LTH Pty Ltd v Tong [2013] VSCA 268  14.51 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555  15.169

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Luck, Re (2003) 78 ALJR 177; [2003] HCA 70  25.66 Lukies v Ripley (No 2) (1994) 35 NSWLR 283  17.12, 29.14 Lyell v Kennedy [1881–5] All ER Rep 814  16.70 — v — (1883) 8 App Cas 217  15.125 Lynch v Keddell (No 2) [1990] 1 Qd R 10  13.29 Lyons v Legalese Pty Ltd (No 2) [2017] SASC 2  28.105, 28.111 Lysacht Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158  9.89

M M v M (1988) 166 CLR 69  3.81 M (A Child) (Injured Child: Evidence), Re [2007] EWCA Civ 589  21.13 M (A minor) v Newham London Borough Council [1995] 2 AC 633; [1994] All ER 602  10.48 M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163  27.23, 27.25, 27.28 Maatschappij Voor Fondsenbezit v Shell Transport and Trading Company [1923] 2 KB 166  10.164 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23  2.18, 2.54, 2.58 MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; [2007] NSWCA 304  18.1 MacDonald v Thorn plc [1999] CPLR 660 (CA)  9.48, 9.55 Macdonald Estates plc v National Car Park Ltd [2010] SLT 36; [2009] CSIH 79  11.19 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112; [2006] NSWCA 160  26.87 — v — (2008) 237 CLR 66; [2008] HCA 42  28.223, 28.224, 28.229 Macintosh v Dunn (1908) 6 CLR 303  1.62 MacLeod v Attorney-General (NSW) [1891] AC 455  2.54 Macplan Logistics Systems Pty Ltd v Baxter Healthcare Pty Ltd (1996) 39 NSWLR 324  27.121 Macquarie Bank Ltd v Lin [2002] 2 Qd R 188  13.16 Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1349  3.79 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171  28.107

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Macteldir Pty Ltd v Dimovski [2005] FCA 1528  28.254, 28.256 — v Roskov [2007] FCAFC 49  28.267 Madafferi v The Age Company Ltd [2015] VSC 687  15.219 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; [2015] VSCA 90  6.46, 6.49 Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394  11.72 Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61  10.159, 10.160, 10.161 Maestrale v Aspite (No 2) [2014] NSCWCA 302  23.61 Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd (1993) 25 IPR 455  15.199, 15.203 — v — [1994] 2 Qd R 37  3.79 Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181; [2001] HCA 70  17.56 Magna Charta (1871) 1 Asp MLC 153  21.111 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331  9.45 Maharanee of Baroda v Wildenstein [1972] 2 QB 283  2.28 Maher v Commonwealth Bank of Australia [2008] VSCA 122  24.8, 24.9 — v — (No 2) (2004) 211 ALR 656; [2004] FCA 1398  24.69, 24.70 Mahon v Rahn [1998] QB 424; [1997] 3 All ER 687  15.184, 15.196 — v — (19 June 1996, unreported)  15.184 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721  27.8, 27.84, 27.87, 28.150 Major v Australian Sports Commission [2001] QSC 320  5.101 Makanjuola v Metropolitan Police Comr [1992] 3 All ER 617  19.14, 19.39 Makhoul v Barnes (1995) 60 FCR 572  26.122 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705  21.10 Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300  24.93, 24.96, 24.97 Mallick v McGeown [2008] NSWSC 1107  29.55 Management 3 Group Pty Ltd v Lenny’s Commercial Kitchens Pty Ltd (No 2) [2012] FCAFC 92  23.59 Management Publications Ltd v Blenheim Exhibitions Group plc [1991] FSR 348  10.31 Manderson M & F Consulting (a firm) v Incitec Pivot Ltd (2011) 35 VR 98; [2011] VSCA 444  7.26, 7.77, 9.89

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Manefield v Association of Quality Child Care Centres of NSW Incorporated (t/as Child Care NSW) [2011] NSWSC 104  27.117 Mango Boulevard Pty Ltd v Spencer [2007] QSC 276  14.66 — v — [2010] QCA 207  22.113, 26.118, 26.120 Manifest Shipping Co Ltd v Uni-Polaris Co Ltd, The Star Sea [2001] 1 All ER 743; [2001] UKHL 1  14.66 Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66  16.3, 16.6, 16.65, 16.99, 16.104, 16.105, 16.113, 17.7 Mann v O’Neill (1997) 191 CLR 204  3.101, 3.104, 3.105, 21.96 Manolakaki v Constantinides [2003] EWHC 401 (Ch)  9.48 Manolakis v Commonwealth Director of Public Prosecutions (2009) 108 SASR 451; [2009] SASC 193  3.121, 3.122 Manor Electronics Ltd v Dickson [1988] RPC 618  10.85, 15.237, 15.238 Mansfield v Australian Crime Commission (2003) 132 FCR 251; [2003] FCA 1059  16.6 — v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486; [2006] HCA 38  8.31, 10.64 Manson v Ponninghaus [1911] VLR 239  8.14 Maples v Siteberg [2012] NSWSC 435  14.13 Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 3 All ER 365  11.45 Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178  19.1 Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep 509  10.96, 10.110 Marino v Esanda Ltd [1986] VR 735  13.4 Markan v Queensland Police Service [2015] QCA 22  14.42 Marks v Beyfus (1890) 25 QBD 494  3.65, 19.13, 19.41 — v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128  28.145 Marks & Spencer plc v Interflora Inc and Interflora British Unit [2012] EWCA Civ 1501  21.10 Maronich v Top Oak Pty Ltd (No 2) [2015] SASC 167  17.66 Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 175 ALR 36; [2000] NSWSC 507  6.61 Marrinan v Vibart [1963] 1 QB 234; [1962] 1 All ER 869  3.101 — v — [1963] 1 QB 528; [1962] 3 All ER 380  3.101

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Marron v Salvemini; Scardigno, Re [1969] WAR 178  24.82 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510  15.80 Marsland & Marsland, Re (1902) St R Qd 219  28.108 Martin v Bannister (1879) 4 QBD 491  24.73 — v Commonwealth Bank of Australia (2001) 217 ALR 634  25.51 Mason v MWREDC Ltd [2012] FCA 1083  23.23 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511; [2002] EWCA Civ 1889; [2003] EWCA Civ 70  3.125 Mathieson Nominees Pty Ltd v AJH Lawyers [2013] VSC 325  28.310 Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663  13.42 — v SPI Electricity Pty Ltd [2011] VSC 401  15.6, 15.37 — v — [2013] VSC 33  16.61 Mattioli v Parker (No 2) [1973] Qd R 499  21.5 Mauroux v Sociedade Commercial Abel Pereira Da Fonseca [1972] 1 WLR 970  28.254 Mayo Group International Pty Ltd v Hudson Respiratory Care Inc [2005] NSWSC 445  10.61 Mazukov v University of Tasmania [2004] FCAFC 159  25.13 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657  9.34 Mbuzi v Hall [2010] QSC 359  10.158 McArthur v Williams (1936) 55 CLR 324; [1936] HCA 10  2.4 McBride v Sandland (No 2) (1918) 25 CLR 369  24.7, 24.9, 25.79 McCabe v British American Tobacco [2002] VSC 73  15.77 — v British American Tobacco Australia Services Ltd (No 3) [2002] VSC 150  3.54, 3.55, 3.56 McCann v Parsons (1954) 93 CLR 418  25.83 McCann; Walton Construction (Qld) Pty Ltd (in liq), Re v QHT Investments Pty Ltd [2016] FCA 1092  10.66 McCarty v The Council of the Municipality of North Sydney [1918] NSWStRp 33; (1918) SR (NSW) 210  10.47 McColl v Lehmann [1987] VR 503  15.169 McConnell Dowell (Aust) Pty Ltd v Santam Ltd [2016] VSC 734  15.94

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McCormack v National Australia Bank Ltd (1992) 35 FCR 303  24.21, 24.22 McCusker v Rutter [2010] NSWCA 318  28.79, 28.85 McDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210  15.152 — v McDonald [1965] HCA 45  23.41, 23.43 — v South Australia [2011] FCA 297  26.70 McDonald’s Australia Ltd v Challenger Property Nominees Pty Ltd [2003] NSWSC 963  29.55 McFadden v Snow (1951) 69 WN (NSW) 8  17.59 McGorm, Re; Ex parte Co-operative Building Society of South Australia (1989) 86 ALR 275  15.52, 15.53 McGregor v McGregor [2012] FamCAFC 69  22.82 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73  15.214 McHenry v Lewis (1882) 22 Ch 397  14.57 McIlkenny v Chief Constable of West Midlands Police Force [1980] QB 283; [1980] 2 All ER 227  26.98, 26.135 McIlraith v Ikin (Costs) [2007] NSWSC 1052  28.245 McIntosh v Maitland [2016] QSC 203  5.90, 5.97, 5.99, 5.102, 5.106, 5.111, 6.41 McIntyre, Re; Ex parte Perkes (FCA, Einfeld J, 28 August 1990, unreported)  5.30 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; [1991] HCA 56  2.47, 14.72 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947  13.88, 13.89, 13.90 McKenna v McKenna [1984] VR 665; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491  9.57 McKensey v Hewitt [2004] NSWSC 636  23.21 McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034  3.138 McLaren v Legal Practitioners Disciplinary Tribunal (NT) (2010) 26 NTLR 45  25.37 McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775; [1999] EWCA Civ 1464  7.8, 7.9, 7.20, 7.25, 22.75 — v — [2000] 1 WLR 1732  11.11 Mead v Watson As Liquidator for Hypec Electronics [2005] NSWCA 133  28.228 Mearns v Willoughby Community Preschool Inc [2003] NSWCA 382  9.44, 9.46 Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474  21.43, 21.45

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Meckiff v Simpson [1968] VicRp 7; [1968] VR 62  7.79 Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71  14.30 Medcalf v Mardell [2003] 1 AC 120  21.100, 28.256, 28.280, 28.288, 28.296, 28.297 Media World Communications Ltd (admin apptd) v Clark [2004] FCA 1609  10.113 Medical Practitioner, Re a (1993) 2 Tas R 90  14.30 Medrad Inc v Alpine Medical Pty Ltd [2009] FCA 949  10.56 Meehan v Glazier Holdings Pty Ltd (2005) 53 ACSR 229; [2005] NSWCA 24  24.11 Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235  26.99, 26.116, 28.48 — v Myer Holdings Ltd (No 2) [2016] VSC 655  28.48 Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; [2002] NSWCA 32  10.156, 10.157 Memory Corp plc v Sidhu [2000] Ch 645; [2000] 1 All ER 434  18.39 Mempoll Pty Ltd, Anankin Pty Ltd & Gold Kings Pty Ltd, Re [2013] NSWSC 301  14.11 Menkens v Wintour [2007] 2 Qd R 40; [2006] QSC 342  15.64 Mercanti v Mercanti (2017) 91 ALJR 258  25.80 Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151  16.6, 16.86 Mercedes-Benz AG v Leiduck [1996] AC 284; [1995] 3 All ER 929  10.100, 10.102 Mercer v Chief Constable of the Lancashire Constabulary [1991] 2 All ER 504; [1991] 1 WLR 367  20.4 Mercus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103  10.155 Merricks v Nott-Bower [1965] 1 QB 57; [1964] 1 All ER 717  19.31 Messiter v Hutchinson (1987) 10 NSWLR 525  28.150 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; [1989] 3 All ER 14  14.39, 14.60, 14.61, 14.63 Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418  14.47 Metric Resources Corporation v Leasemetrix Ltd [1979] FSR 571  10.18 Metropolitan Bank v Pooley (1885) 10 App Cas 210  14.41 Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201  15.240, 15.260, 15.275 Metz Holdings Pty Ltd v Simmac Pty Ltd (No 3) [2011] FCA 1450  27.117

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MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514  15.64 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236  27.37 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48  3.29, 3.40, 3.42, 3.76, 26.130 Michel v R [2009] UKPC 41; [2010] 1 WLR 879  22.24 Mickelberg v Director of the Perth Mint [1986] WAR 365  26.80 — v R (1989) 167 CLR 259  25.17, 25.91, 25.106 Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372; 187 ALR 362; [2002] FCA 3  18.5 — v Goodview Electronics Pty Ltd [1999] FCA 754  15.239, 15.240, 15.243 — v Marks (1995) 33 IPR 15  24.85 — v PC Club Australia Pty Ltd (2005) 67 IPR 262; [2005] FCA 1522  15.235 Midas Management Pty Ltd v Equator Communications Pty Ltd [2007] NSWSC 759  24.11 Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384  21.13 Mijac Investments Pty Ltd v Graham [2013] FCA 296  28.256 Milcap v Coranto (1995) 32 IPR 34  15.244 Milcap Publishing Group AB v Coranto Corp Pty Ltd (1995) 32 IPR 24  8.26, 8.34 Millars’ Karri & Jarrah Co Ltd v Holman (1907) 9 WALR 125  1.62 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13  7.20 — v Commissioner of Police [2004] NSWCA 356  23.18 — v Eurovox Pty Ltd [2004] VSCA 211  10.138 — v Jackson [1977] EWCA Civ 6; [1977] QB 966  10.57 — v Scorey [1996] 3 All ER 18; [1996] 1 WLR 1122  15.186 — v University of New South Wales (2003) 132 FCR 147; 200 ALR 565; [2003] FCAFC 180  26.85 Mills v Cooper [1967] 2 QB 459  26.93, 26.97 Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460  28.49 Milsom v Ablyazov [2011] EWHC 1846  18.37 Mineral Resources Ltd v Pilbara Minerals Ltd [2016] WASC 338  29.32 Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2017] QSC 219  23.60

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Minet v Morgan (1873) 8 Ch App 361  1.62 Minister for Community Services v Children’s Court (NSW); Andrew, Re (2004) 61 NSWLR 283; [2004] NSWSC 842  3.81 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17  3.28, 3.41, 3.42 — v Wong [2002] FCAFC 327  15.107 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54  25.24 — v SBAN [2002] FCAFC 431  25.24 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6  19.48 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154  22.53 Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [1991] 4 All ER 65  14.27 Minnesota Mining and Manufacturing Co v Beiersdorf (Aust) Ltd (1980) 144 CLR 253  21.13, 21.78 Minter Ellison (a firm) v Raneberg [2011] SASC 159  8.26 Mitchell v Darley Main Colliery Co (1884) 1 Cab & El 215  15.72 Mitchelson v Mitchelson (1979) 24 AR 522  25.60 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59  16.6, 16.21, 16.76 Mitsui & Co (Point Aconi) Ltd v Jones Power Co [2000] 2000 NSCA 96  16.70 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344  27.39, 27.40 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859  16.62 Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34  3.78, 3.79, 15.203 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1  13.49 Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423  28.72 Modra v Victoria [2012] FCA 240  28.269 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626  13.66 Mogul Steamship Co v M’Gregor, Gow & Co (1885) 15 QBD 476  10.47 Mok v NSW Crime Commission [2002] NSWCA 53  15.207 Momcilovic v R (2011) 245 CLR 1  3.110

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Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148  13.58, 13.64, 13.65, 13.68, 13.69, 13.70 , 13.71, 13.72, 13.73, 28.200 Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) [2000] SASC 63  28.253, 28.281, 28.296 — v — (No 3) [2000] SASC 286  28.253, 28.256, 28.293 Monroe Schneider v No 1 Raberem (1992) 37 FCR 234  25.89 Monteleone v the Owners of the Old Soap Factory [2007] WASCA 79  5.92 Moody Kiddell and Partners Pty Ltd v Arkell [2013] FCA 1066  14.68 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; [1980] HCA 32  2.37, 2.39 Morf-Zinggeler v Morf [1999] WASC 96  26.141 Morgan v Hart [1914] 2 KB 183  24.63 — v Johnson (1998) 44 NSWLR 578  27.8, 27.48, 27.87 Morissey v Young (1896) 17 LR (NSW) Eq 157  15.123 Morris v Hanley [2000] NSWSC 957  10.141 Morrison Rose & Partners v Hillman [1961] 2 QB 266; [1961] 2 All ER 891  26.94 Morrissey v McNicholas [2011] EWHC 2738  14.33 Morton v Nylex Ltd [2007] NSWSC 562  15.138, 15.142 Mothership Music Pty Ltd v Flo Rida (aka Tramar Dillard) [2012] NSWCA 344  10.147 Moti v R (2011) 245 CLR 456; [2011] HCA 50  14.30 MS v Sweden (1997) 28 EHRR 313  15.210 MT Realisations Ltd v Digital Equipment Co Ltd [2002] EWHC 1628 (Ch)  9.101 Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1985) 11 FCR 573; 61 ALR 291  11.71 Muhammad Khalid v Secretary, Department of Transport, Planning and Local Infrastructure [2014] VSCA 115  3.128, 28.236 Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513  5.95, 5.106, 6.41 Muller v Linsley & Mortimer (a firm) [1995] 03 LS Gaz R 38; [1996] PNLR 74  17.12, 17.19, 17.46 Mulley v Manifold (1959) 103 CLR 341  15.66, 15.68, 15.115 Mulsanne Resources Pty Ltd, Re [2013] NSWSC 358  17.77

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Multiplex Constructions Pty Ltd v Irving (No 2) [2005] NSWCA 1  23.35, 23.37 Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275; [2007] FCAFC 200  13.39, 13.64 Multi-Tech Services Ltd (in liq), Re (1982) 30 SASR 218  13.20 Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] HCA 45  7.69 Munro v The Wivenhoe and Brightlingsea Railway Co (1865) 46 ER 1100; 4 De GJ & Sm 723  10.11 Munsie v Munsie [2012] NSWSC 479  10.179 Munster v Lamb (1883) 11 QBD 588; [1881–5] All ER Rep 791  3.101 Murphy v Legal Services Commissioner (No 2) [2013] QSC 253  28.241 — v R (1989) 167 CLR 94; 86 ALR 35; [1989] HCA 28  21.10, 21.16, 21.19, 21.20 Murphy’s Settlements, Re; Murphy v Murphy [1998] 3 All ER 1  15.125 Music Masters Pty Ltd v Minelle [1968] Qd R 326  24.50 MV Yorke Motors Ltd v Edwards [1982] 1 All ER 1024; [1982] 1 WLR 444  11.49 Myers v Elman [1940] AC 282  15.83, 28.252, 28.253, 28.254, 28.275, 28.288 Myring v Beale (1899) 20 NSWLR 6  10.67 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28  3.118

N Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209  28.257, 28.265, 28.268 Nagan v Holloway [1996] 1 Qd R 607  16.64 Naidoo v Williamson [2008] WASCA 179  28.219 Naomi Marble & Granite Pty Ltd v FAI General Insurance Co Ltd (No 2) [1999] 1 Qd R 518  28.213 Nardell Coal Corp (in liq) v Hunter Valley Coal Processing Pty Ltd (2003) 178 FLR 400; 46 ACSR 467; [2003] NSWSC 642  28.75 National Australia Bank v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10  10.110 — v — [1991] VicRp 31; [1991] 1 VR 386  10.64 National Australia Bank Ltd v Idoport Pty Ltd [2000] NSWCA 8  15.21 — v Singh [1995] 1 Qd R 377  9.44, 9.51 National Benzole Co Ltd v Gooch [1961] 1 WLR 1489  11.63

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National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405; [2009] UKPC 16  3.75 National Crime Authority v Gould (1989) 23 FCR 191; 90 ALR 489  19.58 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372  15.160, 15.165, 15.168 — v Waind and Hill (No 2) [1978] 1 NSWLR 466  2.9 National Employers’ Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648  16.6 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68  21.44 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441  9.50 National Safety Council of Australia, Victorian Division (in liq) (No 2), Re [1992] 1 VR 485  28.109 National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268  28.223 Naxakis v Western General Hospital (1999) 197 CLR 269  21.17 Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23  22.105 Nearmap Ltd v Spookfish Pty Ltd [2014] NSWSC 1790  29.39 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66  22.47, 22.48 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1958] 1 All ER 976  16.108 Neil v Nott (1994) 68 ALJR 509  11.88 Neilson v Laugharne [1981] QB 736; [1981] 1 All ER 829  19.14 — v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54  2.18 Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406  17.56 Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89; [2015] FCA 366  3.138, 3.139 Nesci v Nesci [2005] WASC 65  27.70 Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275  16.87 Neville v Handley (1888) 14 VLR 270  1.20, 11.29 Nevitt, Re (1902) 117 Fed Rep 448  24.87 New Bounty Pty Ltd, Re; Winpar Holdings Ltd v Baron Corp Pty Ltd (2015) 107 ACSR 504; [2015] NSWSC 1060  14.43, 14.45 New Brunswick Railway Co v British and French Trust Corp Ltd [1939] AC 1; [1938] 4 All ER 747  26.120 New Cap Reinsurance Corporation Ltd v General Cologne Re Australia Ltd (No 2) [2005] NSWSC 276  28.219

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— v Renaissance Reinsurance Ltd [2007] NSWSC 258  16.55 New Cap Reinsurance Corporation Ltd (in liq) v Daya [2008] NSWSC 763  15.178 New Idafe Inc v Barnard [2007] NSWSC 1107  29.55 New South Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437  22.63 — v Betfair Pty Ltd [2009] FCAFC 160  16.26 — v Canellis (1994) 181 CLR 309  3.135 — v Commonwealth (2006) 229 CLR 1; [2006] HCA 52  2.41 — v Commonwealth (Wheat case) (1915) 20 CLR 54; [1915] HCA 17  2.6, 3.7 — v Gillett [2012] NSWCA 83  26.27, 26.28 — v Jackson [2007] NSWCA 279  16.6 — v McCarthy [2015] NSWSC 1780  15.191 — v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276  7.75 — v Stanley [2007] NSWCA 330  28.143, 28.144 — v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177  9.82 New South Wales Crime Commission v Vu [2009] NSWCA 349  8.14 New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100  27.87 New South Wales Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681  22.107 New South Wales Trustee and Guardian v Schneider [2011] NSWSC 424  24.69 Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350  21.75 Newcomen v Coulson (1878) 7 Ch D 764  10.64, 14.3 Newcrest Mining Ltd v Thornton (2012) 248 CLR 555; [2012] HCA 60  11.62 News Ltd v Australian Rugby League Football Ltd (1996) 64 FCR 410  13.10, 13.11 Newson v Pender (1884) 27 Ch D 43  10.72 Nichia Corporation v Argos Ltd [2007] Bus LR 1753; [2007] EWCA Civ 741  15.55 Nicholas v R (1998) 193 CLR 173; [1998] HCA 9  3.8, 3.17, 3.20 Nicholls v McLeay (1971) 1 SASR 442  15.225

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Nicholson v Morgan [2012] WASC 65  3.61 Nicholson Clement Lawyers v Alexander Christopher Hewson by his next friend Christopher Robert Hewson [2014] WASC 416; LM v K Lawyers (No 2) [2015] WASC 245  28.310 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44  16.41 Nicola v Ideal Image Development Corporation Inc (2009) 261 ALR 1; [2009] FCA 1177  29.44 Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74; [2004] NSWSC 562  19.17 Niemann v Electronic Industries [1978] VR 431  25.66 Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 854  7.68 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398  10.108, 10.110, 10.111 Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282; [1975] 1 WLR 1093  10.96 Noble Solutions Pty Ltd v Young [2014] NSWSC 1419  23.58, 23.61 Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133  17.66 Nom De Plume Pty Ltd v Fingal Developments Pty Ltd [2015] VSCA 129  24.8 Nominal Defendant v Haslbauer (1967) 117 CLR 448  22.32 — v Saleh [2011] NSWCA 16  22.50 Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 221  10.156 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50  26.59, 26.60 Norbis v Norbis (1986) 161 CLR 513  9.42, 11.4, 28.15, 28.16 Norglen Ltd (in liq) v Reeds Rains Prudential Ltd [1999] 2 AC 1  14.38 Norman v Mitchell (1854) 5 De GM & G 648; 43 ER 1022  10.32 Norsemeter Holdings AS v Pieter Boele (No 3) [2002] NSWSC 390  23.60 North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146  3.18 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (2008) 24 BCL 117; [2007] QSC 206  29.30 Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318  16.3 Northey v Juul [2014] NSWSC 464  28.229 Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All ER 943  15.123, 15.124, 15.125, 15.126, 15.135, 15.189, 19.11, 19.28

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Norwich Union Life Insurance Society v Preston [1957] 2 All ER 428  24.70 Nouvian v Freeman (1889) 15 App Cas 1  24.97 Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd (No 3) [2013] FCA 1323  14.20 Novello v James (1854) 5 De GM & G 876  10.64 Novo Tank Pty Ltd (in liq) v Formaction Concrete Civils Pty Ltd (No 3) [2015] FCA 142  15.9 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346  7.5, 25.61 NSW Commissioner of Police v Tuxford [2002] NSWCA 139  15.163, 15.166 NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd [2016] NTSC 44  1.69, 11.58 Nudd v Mannix [2009] NSWCA 327  28.234 NWL Ltd v Woods [1979] 3 All ER 614; [1979] 1 WLR 1294  10.19, 10.37

O Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68  22.64 Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455  28.213 OB v The Director of the Serious Fraud Office [2012] EWCA Crim 67  24.75 Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518; 66 ALR 371  11.11 Obeid v R (2016) 90 ALJR 447  25.80 Objectivision Pty Ltd v Visionsearch Pty Ltd (2014) 108 IPR 244; [2014] FCA 1087  15.142 O’Brien v Chief Constable of South Wales Police [2005] 2 All ER 931; [2005] UKHL 26  14.68 — v Industry Skills Peninsula Pty Ltd [2016] VSC 744  15.239, 15.241 Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Ltd [2015] FCA 460  10.58 Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] UKSC 44; [2011] 1 AC 662; [2010] 4 All ER 1011  17.4, 17.12, 17.49, 17.52, 17.57, 17.58 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32  2.50, 3.116, 5.159, 5.160, 14.25, 14.59, 14.69 Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Ltd [2012] NSWCA 113  10.159 Official Custodian for Charities v Mackey [1985] Ch 168; [1984] 3 All ER 689  10.35 Official Solicitor to the Supreme Court v K [1965] AC 201; [1963] 3 All ER 19  3.81, 11.19 Ofulue v Bossert [2009] UKHL 16; [2009] 1 AC 990  17.20, 17.21

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Ogier v Norton (1904) 29 VLR 536  28.242, 28.246 Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346; [2007] VSCA 255  3.89 — v Watson [2014] FCAFC 154  28.70 Oke v Commissioner of the Australian Federal Police [2005] FCA 1363  11.65 O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559  28.150, 28.219 Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715  2.31 Olbers Co Ltd v Commonwealth [2002] FCA 1269  10.164 Old v McInnes and Hodgkinson [2011] NSWCA 410  27.35 Oldfield v Surrey Social Services [2001] All ER (D) 293  14.47 Oliver v Citigroup Pty Ltd [2016] QCA 261  9.45 — v Lake Side Resort Development Pty Ltd [2005] NSWSC 501  17.44, 17.48 Oliver Brown Pty Ltd, Re [2013] NSWSC 738  22.105 Ollis v Melissari [2005] NSWSC 1016  18.26 — v New South Wales Crime Commission [2007] NSWCA 311  9.82, 21.95 Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (Supreme Court of Victoria, Harper J, 26 May 1997, unreported)  15.68 O-M (Children) (Non-Accidental Injury: Expert Evidence), Re [2009] EWCA Civ 1405  21.13 Omar v Omar [1995] 3 All ER 571; [1995] 1 WLR 1428  15.189, 15.191 Onefone Australia Pty Ltd v One Tel Ltd [2007] NSWSC 1320  5.92 O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906  26.16 Onslow v IRC (1890) 25 QBD 465  23.3 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435; [2008] FCAFC 133  15.142 OQ v Australian Red Cross Society [1992] 1 VR 19  21.33 Orchard v South Eastern Electricity Board [1987] QB 565  28.253, 28.288, 28.291, 28.296 Orchard Holdings Pty Ltd [2013] WASCA 283  27.40 Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279  10.68 Orleans Investments Pty Ltd v Mindshare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40  10.79

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Orpen v Tarantello [2009] VSC 143  8.27, 8.29, 10.84, 10.89, 15.245 Orr v Ford (1989) 167 CLR 316  26.12 — v Holmes (1948) 76 CLR 632; [1948] HCA 16  25.81, 25.83, 25.84 Orrell Colliery and Fire-Brick Co, Re (1879) 12 Ch D 681  22.113 Osborne v Auckland Council [2014] 1 NZLR 766  23.50 O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358  24.73 — v Harbour Radio Pty Ltd (2013) 85 NSWLR 698  26.129, 26.130, 26.134 Oshlack v Richmond River Council (1998) 193 CLR 72  9.42, 28.7, 28.16 , 28.49, 28.50, 28.51, 28.76, 28.104, 28.111, 28.121, 28.146 Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37  16.6, 16.101 O’Sullivan, Re; Ex parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145  5.30 Oswal v Commissioner of Taxation (No 5) [2016] FCA 916  28.30, 28.70 Oswal v Commissioner of Taxation (No 6) [2016] FCA 1007  29.55 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232  26.99 Overseas Aviation Engineering (GB) Ltd, Re [1962] 3 All ER 12  24.2 Owen Pell Ltd v Bindi (London) Ltd [2008] EWHC 1420  29.31 Owens Bank Ltd v Bracco [1992] 2 AC 443  25.89 Owners of SS Kalibia v Wilson (1910) 11 CLR 689  3.75 Owners of Strata Plan 64622 v Australand Corporation Pty Ltd [2009] NSWSC 614  17.51 Owners of the SS Australia v Owners of Cargo of SS Nautilus [1927] AC 145  21.111 Oxfordshire County Council v M [1994] 2 All ER 269  16.16

P Paal Wilson & Co A/S v Partemreederei Hannah Blumenthal [1983] 1 AC 854  29.42 Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622  24.88 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35  17.56 Pacific Century Production Pty Ltd v Netafirm Australia Pty Ltd [2004] 2 Qd R 422; [2004] QSC 63  15.135 Pacific Coal, Re (2000) 203 CLR 346; [2000] HCA 34  2.41

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Packer v Meagher [1984] 3 NSWLR 486  14.7, 14.46, 28.107 Packett v R (1937) 58 CLR 190  25.101 Page v Page [2016] NSWSC 1218  28.202 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264  1.98, 14.68, 15.19, 15.40, 15.79 Palermo, The (1883) 9 PD 6  16.70 Palmdale Insurance Ltd (in liq) v L Grollo and Co Pty Ltd [1987] VR 113  15.43, 15.46 Palmer v Durnford Ford (a firm) [1992] QB 483; [1992] 2 All ER 122  21.97, 26.120 — v Gold Coast Newspapers Pty Ltd [2013] QSC 352  28.148 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388  21.31 Pan Pharmaceuticals Ltd, Re; Selim v McGrath (2004) 48 ACSR 681; [2004] NSWSC 129  28.219 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142; [1994] 1 All ER 755  15.147 Papaconstuntinos v Holmes a Court [2006] NSWSC 945  15.141 Papas v Grave [2013] NSWCA 308  10.84 Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400; [1998] EWCA Civ 1249  7.22 Paragon Finance plc (formerly National Home Loans Corp plc) v Freshfields (a firm) [1999] 1 WLR 1183  16.116 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361  25.67 Parker v Comptroller-General of Customs [2009] HCA 7  22.72 — v R (1963) 111 CLR 610; [1963] HCA 14  2.55 Parkhurst v Lowten (1818) 2 Swans 194; 36 ER 589  16.31 Parkin v O’Sullivan (2009) 260 ALR 503  19.21 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 99 IPR 605; [2013] FCA 119  10.61 Parry v Crooks (1981) 27 SASR 1  24.84 — v News Group Newspapers Ltd [1990] NLJR 1719  17.40 Parry-Jones v Law Society [1969] 1 Ch 1  3.99 Parsons v George [2004] 3 All ER 633; [2004] 1 WLR 3264; [2004] EWCA Civ 912  7.72 — v Martin (1984) 5 FCR 235  14.30 Pascall v Galinski [1970] 1 QB 38  16.31

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Pasini v Vanstone [1999] FCA 1271  15.168 Patdith Services Pty Ltd v Mitronics Corporation Pty Ltd [2016] FCA 1315  10.174 Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495  15.227 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869  15.170 Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272; [2004] FCA 1249  16.86 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30  10.10, 10.18, 10.57, 10.98 Patridge v Hobart City Council (No 2) [2011] TASSC 35  28.105 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319  10.109, 10.113 Paul Smith Ltd v H & S International Holdings Inc [1992] 2 Lloyd’s Rep 127  29.17 Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728  15.137 Payne v Young (1980) 145 CLR 609  13.4, 13.6 PCCW Global Ltd v Interactive Communication Service Ltd [2007] 1 HKLRD 309; [2006] HKCA 434  29.37 PCH Offshore Pty Ltd (ACN 086 216 444) v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897  26.146 Pearce v Waterhouse [1986] VR 603  10.116 Pearl Bay Corp Pty Ltd v Lodur Pty Ltd [2001] WASC 315  24.10 Pearse v Pearse (1846) 63 ER 950  1.62 Pearson v Naydler [1977] 1 WLR 899; [1977] 3 All ER 531  10.153 Pearson v Williams [2002] VSC 30  27.30 Peek v Ray [1894] 3 Ch 282  15.104 Pegang Mining Co Ltd v Choong Sam [1969] 2 Malayan LJ 52  13.11 Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51  6.37 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19  10.100 Pell v Hodges [2007] NSWCA 234  5.95, 5.101 Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317  15.28 Penn v Lord Baltimore (1750) 27 ER 1132  2.32 Penn-Texas Corporation v Murat Anstalt (1964) 2 QB 647  15.154

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People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253  25.22, 25.23 Perazzoli v Bank SA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204  16.6 Perdaman Chemicals and Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd (No 7) (2012) 92 ACSR 281; [2012] WASC 502  10.43 Perochinsky v Kirschner (No 2) [2013] NSWSC 837  28.55 Perpetual Ltd v Kelso [2008] NSWSC 906  24.70 Perpetual Trustees Co Ltd v Burniston [2012] WASC 26  15.68, 15.71 Perpetual Trustees of Australia Ltd v Brenton (1985) 35 NTR 44  15.103 Perpetual Trustees Queensland Ltd v Thompson [2012] 2 Qd R 266; [2011] QSC 48  11.64 Perpetual Trustees Victoria Ltd v Xiao [2012] VSCA 316  22.108 Perry v Comcare (2006) 150 FCR 319; [2006] FCA 33  27.23 Peter Buchanan Ltd v McVey [1954] IR 89  24.98 Peterson v Hottes [2012] QCA 362  27.92 Pettit v Dunkley [1971] 1 NSWLR 376  3.92 Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193  15.138, 15.139, 15.140 Pfizer Pty Ltd v Warner Lambert Pty Ltd (1989) 89 ALR 625  16.38 Pham v University of Queensland [2002] FCAFC 40  22.105 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361  7.20, 7.22 Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397; [2005] FCA 1675  10.56 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7  2.37, 2.38 Philip Morris Ltd v Bridge Shipping Pty Ltd [1994] 2 VR 1  13.27 Philipps v Philipps (1878) 4 QBD 127  7.79 Phillips v News Group Newspapers Ltd [2012] EWCA Civ 48  18.15 — v — [2012] UKSC 28  18.15 — v Symes (a bankrupt) (expert witnesses: costs) [2004] EWHC 2330; [2005] 1 WLR 2043  21.98 Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1964] Ch 195  24.74 PhotoCure ASA v Queen’s University at Kingston [2003] FCA 1508  3.79

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Physiotherapy Board of SA v Heywood-Smith (2008) 101 SASR 573; [2008] SASC 253  21.18 Pickering v Centrelink [2008] FCA 561  14.42 Pihiga Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240  17.12, 17.19, 17.55, 17.70 Pinchin v London and Blackwall Railway Co (1845) 5 De GM & G 851; 43 ER 1101  10.44 Pinson v Lloyds & National Foreign Bank Ltd [1941] 2 KB 72  7.21 Pioneer Concrete (NSW) Pty Ltd v Webb (1995) 13 ACLC 1729  16.86 Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1; [1983] 1 All ER 65  26.21 Piscioneri v Brisciani & Reardon [2007] ACTSC 237  15.111 Pitcher v Roe (1841) 9 Dowl 971  24.70 Pitney Bowes of Canada Ltd v R (2003) 225 DLR (4th) 747  16.86 Pitts v Adney (1961) 78 WN (NSW) 886  17.59 PJB v Melbourne Health; Patrick’s Case (2011) 39 VR 373; [2011] VSC 327  3.81 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41  3.70 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2  2.36, 3.111 Plato Films Ltd v Speidel [1961] AC 1090  7.15 Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No 2) [2010] FCA 455  28.8 PNJ v R [2009] HCA 6  14.31 Polan v Goulburn Valley Health (No 2) [2017] FCA 30  11.26 Police Service Board v Morris (1985) 156 CLR 397  18.3, 18.21 Pollard v RRR Corp Pty Ltd [2009] NSWCA 110  23.12 Pollitt v R (1992) 174 CLR 558; [1992] HCA 35  22.93 Polycarpou v Australian Wire Industries (1995) 36 NSWLR 49  21.37 Polyukhovich v Commonwealth (1991) 172 CLR 501  3.13, 3.15, 3.17 Ponnamma v Arumogam [1905] AC 383  25.15 Popovic v Panagoulias [2014] WASCA 86  6.42 Porker v Richards (No 2) [2017] SASC 11  17.66

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Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004] FCA 1437  27.87, 27.88 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45  7.23, 13.9, 23.5, 23.11, 26.66, 26.67, 26.75, 26.76, 26.88, 26.89, 26.90, 26.92, 26.94, 26.101, 26.102, 26.103, 26.104, 26.105, 26.106, 26.107, 26.108, 26.109, 26.110 Portal Software International Ltd v Bodsworth [2005] NSWSC 1115  15.164 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598  11.73 Potter v Broken Hill Pty Co Ltd [1905] VLR 612  2.34 — v — (1906) 3 CLR 479; [1906] HCA 88  2.34 Powell v Lloyd (1827) 1 Y & J 427  10.32 Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143  15.14 Powercor Australia Ltd v Perry (2011) 33 VR 548; [2011] VSCA 239  16.55 Pratt v Inman (1889) 43 Ch D 175  24.74 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357  16.20, 16.22, 16.23, 16.24, 16.25, 16.27, 16.41, 16.44 Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd (No 2) [2014] WASCA 106  10.173 Pre-Paid Professional Administration Ltd v Deputy Commissioner of Taxation (2012) 86 ATR 17  25.61 Preston v Harbour Pacific Underwriting Management Pty Ltd [2008] NSWCA 216  15.83 — v Luck (1884) 27 Ch D 497  10.12, 10.14, 10.38 Price v McCabe; Ex parte Price (1984) 55 ALR 319  18.21 Priest v New South Wales [2006] NSWSC 12  7.79, 15.22 Priestley v Priestley (No 2) [2016] NSWSC 1259  28.53 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37  25.59, 26.5 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222  22.42 Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498  15.163 Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506  24.73 Pritchard v Ontario (Human Rights Commission) [2004] 1 SCR 809; [2004] SCC 31  16.85 PRO Property Pty Ltd as Trustee for Acehigh Adelaide Trust t/as Coldwell Banker PRO Property v Orchard Holdings Pty Ltd [2013] WASCA 283  27.40, 28.85 Probuild Construction (Aust) Pty Ltd v Shade Systems Pty Ltd [2017] HCATrans 112  25.64

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Procter v Kalivis [2009] FCA 1518  15.68 — v — (No 2) [2010] FCA 663  15.56 Proctor & Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183  15.68 Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994  24.73 Proude v Visic (No 4) (2013) 117 SASR 560; [2013] SASC 154  9.96 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878; [1991] 1 WLR 756  11.68, 15.181, 15.183, 15.189 — v Prudential Insurance Co of America (No 2) [2003] EWCA Civ 115  17.11 Prudential Finance Ltd v Davander Nominees Pty Ltd [1992] VR 468  28.99, 28.134 PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36  10.147 Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123; [2009] VSC 417  15.43, 15.46 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2014) 288 FLR 299  11.78 — v — (2015) 89 ALJR 975; [2015] HCA 36  10.98, 10.100, 10.130, 10.133 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656  3.84, 3.86, 3.87 Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2007) 34 WAR 279; 242 ALR 181; [2007] WASCA 151  16.6, 16.57 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27  26.7 Pumplin v Express Newspaper Ltd [1985] 1 WLR 689  28.163 Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) (2009) 19 Tas R 376; [2009] TASSC 78  1.91 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34  22.35 Putnin as liquidator of Maff Investments Pty Ltd (in liq) v Fuller (1991) 3 WAR 546  24.90 Puttick v Tenon Ltd (2008) 238 CLR 265  5.155, 5.158, 5.160 Pyne, Re [1997] 1 Qd R 326  15.135 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609  18.1, 18.3, 18.15, 18.19, 18.20 Pyramid Building Society v Viewbank Garden Estate [1998] VSC 104  9.45, 9.48 Pyramid Building Society (in liq) v Farrow Finance Corporation Ltd (in liq) [1995] 1 VR 464  15.159

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Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256  15.93, 15.94

Q Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34  13.10, 13.14 — v Dillingham Corporation Ltd (NSWSC, Rogers J, 14 May 1987, unreported)  28.90, 28.97, 28.103 QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd (1991) 33 FCR 227  29.42, 29.43 Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86  17.40 Quality Publications Australia Pty Ltd v Commissioner of Taxation of the Commonwealth (2009) 77 ATR 758; [2009] FCA 1293  16.44 Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd [2011] NSWSC 1031  24.11 Queen Mary (1949) 82 LlL Rep 609  21.109, 21.111 Queensland v Australian Telecommunications Commission (1985) 59 ALR 243; [1985] HCA 25  10.61 — v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1  1.30, 1.57, 5.90, 7.67, 7.68, 7.69, 14.22 Queensland Power Trading Corp v Xstrata Queensland Ltd [2005] QCA 477  29.29 Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266  15.31 Quick v Stoland Pty Ltd (1998) 87 FCR 371; [1998] FCA 1200  21.19

R R v Anderson (2000) 1 VR 1  21.31 — v Apicella (1985) 82 Cr App R 295  18.12 — v Apostilides (1984) 154 CLR 563  11.11 — v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13  6.32 — v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22  3.41 — v Bell; Ex parte Lees (1980) 146 CLR 141; 30 ALR 489  16.6, 16.31, 16.82 — v Beydoun (1990) 22 NSWLR 256  3.103, 21.96 — v Bonython (1984) 38 SASR 45  21.5, 21.10, 21.19, 21.24, 21.26, 21.27, 21.28 — v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119; [1999] 1 All ER 577  3.37 — v Byrne; Swanwick, Re (1882) 1 QLJR 66  14.54

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— v Camm (1883) 1 QLJ 136  21.5 — v Central Criminal Court; Ex parte Bright [2001] 2 All ER 244  18.36, 18.37 — v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274; [1994] 3 All ER 420  19.1, 19.7, 19.14, 19.27, 19.39 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] HCA 50  2.39 — v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682; [1956] 2 WLR 800  5.3, 5.5, 5.8, 5.23 — v Cox and Railton (1884) 14 QBD 153  16.77 — v Crown Court at Manchester; Ex parte Rogers [1999] 4 All ER 35; [1999] 1 WLR 832  16.32 — v Dalton [2011] SASCFC 125  14.25, 14.36 — v Davis (1993) 97 Cr App R 110  19.13 — v Davison (1954) 90 CLR 353  3.12 — v Deenik [1992] Crim LR 578  18.12 — v Derby Magistrates’ Court; Ex parte B [1996] 1 AC 487; [1995] 4 All ER 526  16.10, 16.29 — v Dunbabin; Ex parte Williams (1935) 53 CLR 434  24.73 — v Dunn [2015] 2 Qd R 407; [2014] QCA 254  5.30 — v Esposito (1998) 45 NSWLR 442  11.11 — v G [2004] 1 WLR 2932  19.42 — v — [2004] 2 Cr App R 638  21.28 — v G and B [2004] 2 Cr App R 37  19.13 — v Harris (No 3) [1990] VR 310  21.26 — v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53  2.36 — v Hicks (2010) 210 A Crim R 158  18.10 — v Horseferry Road Magistrates Court; Ex parte Bennett [1994] 1 AC 42; [1993] UKHL 10  2.28 — v — (No 2) [1994] 1 All ER 289  19.22 — v Jenkins; Ex parte Morrison [1949] VLR 277  21.111 — v K [2009] EWCA Crim 1640; [2010] QB 343  17.6

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— v Kearns [2002] 1 WLR 2815; [2002] EWCA Crim 748  18.37 — v King [1983] 1 All ER 929; [1983] 1 WLR 411  16.58 — v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254  3.6, 3.7, 3.10, 3.12 — v Local Authority in the Midlands and A Police Authority in the Midlands; Ex parte LM [2000] 1 FCR 736  15.210 — v Lord Chancellor; Ex parte Child Poverty Action Group [1998] 2 All ER 755  28.51 — v Lord Chancellor; Ex parte Witham [1998] QB 575  3.110 — v Macfarlane (1923) 32 CLR 518; [1923] HCA 39  10.27, 10.47 — v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518  3.65 — v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35; [1999] 1 WLR 832  16.32 — v Mason (2000) 77 SASR 105; [2000] SASC 161  19.13 — v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208  24.83 — v Miroslav Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98  3.57, 3.60, 3.61 — v O’Halloran (2000) 159 FLR 260; [2000] NSWCCA 528  26.134 — v Palmer [1981] 1 NSWLR 209  21.14 — v Parenzee [2007] SASC 143  21.19 — v Perry (1990) A Crim R 243  21.19 — v Perry (No 4) (1981) 28 SASR 119  21.5 — v Pham (2015) 256 CLR 550; [2015] HCA 39  24.91 — v Pilgrim (1870) LR 6 QB 89  25.13 — v Ping (2005) 159 A Crim R 90  21.32 — v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1  3.8 — v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109  23.8 — v Robb (1991) 93 Cr App R 161  21.26 — v Ronen [2004] NSWCCA 67  15.153 — v Runjanjic (1991) 56 SASR 114  21.26 — v Rusmanto (1997) 6 NTLR 68  19.58

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— v Ryle (1841) 152 ER 96  1.108 — v S [2009] 1 All ER 716; [2008] EWCA Crim 2177  18.37 — v Scott (1990) 20 NSWLR 72  15.153 — v Secretary for the Home Department; Ex parte Salem [1999] 1 AC 450; [1999] 2 All ER 42  25.21 — v Secretary of State for the Home Department; Ex parte Kingdom of Belgium, Ex parte Amnesty International (15 February 2000, unreported)  15.210 — v Secretary of State for the Home Department; Ex parte Leech (No 2) [1994] QB 198  3.110 — v Secretary of State for the Home Department; Ex parte Simms [1999] 3 All ER 400  15.213 — v Secretary of State for Transport; Ex parte Factortame Ltd (Discovery) (1997) 9 Admin LR 591  16.108 — v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603  10.26, 10.37 — v Slaney (1832) 5 Car & P 213; 172 ER 944  18.11 — v Smith [1987] VR 907  21.19 — v Socialist Worker Printers and Publishers Ltd [1974] 1 QC 637  3.65 — v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256  3.26, 3.48 — v Tait (1979) 24 ALR 473  3.50 — v Tastan (1994) 75 A Crim R 498  15.165 — v Tonkin and Montgomery [1975] Qd R 1  21.13 — v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361  3.13 — v Turner [1975] QB 834  21.20 — v Wilkey; Ex parte Cooke [1991] 2 Qd R 447  15.167 — v Wills (1985) 29 SASR 35  22.87 — v WR (No 2) [2009] ACTSC 110  15.170 — v Wright [1980] VR 593  18.34 — v Yooyen (1991) 57 A Crim R 226  19.13 R & T Thew Ltd v Reeves (No 2) [1982] QB 1283  28.253 R (Corner House Research) v Secretary for Trade and Industry [2005] 1 WLR 2600  28.236 R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389  11.63, 11.65

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R (on the application of Malik) v Manchester Crown Court [2008] 4 All ER 403; [2008] EWHC 1362 (Admin); [2008] 4 All ER 403  18.36 R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2001] 1 All ER 535  16.6 — v — [2002] UKHL 21; [2003] 1 AC 563; [2002] 3 All ER 1  16.6, 16.11 R (on the application of Prudential plc) v Special Commissioner of Income Tax [2009] EWHC 2494; [2010] All ER 1113  16.18, 16.37 — v — [2010] EWCA Civ 1094; [2011] 1 All ER 316  16.37 — v — [2013] UKSC 1  15.207, 16.9, 16.37 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129  21.5, 21.16 RA v R (2007) 175 A Crim R 221; [2007] NSWCCA 251  22.88 Rabin v Mendoza & Co [1954] 1 All ER 247; [1954] 1 WLR 271  17.12, 17.18, 17.32 Racecourse Totalizors Pty Ltd v The Totalisor Administration Board of Queensland (1995) 58 FCR 119; [1995] FCA 1045  10.62 Radenkovic v R (1990) 170 CLR 623; [1990] HCA 54  25.94 Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 72  28.107, 28.127 — v — (FCA, Davies J, 5 March 1993, unreported)  28.145, 28.148 Rainbow v Moorgate Properties Ltd [1975] 1 WLR 788  24.57 Raja v Van Hoogstraten [2004] 4 All ER 793; [2004] EWCA Civ 968  10.119 — v — [2006] EWHC 1315  14.37 Rambaldi v Mullins (No 2) [2016] FCA 977  17.76 Ramesh Gupta v Australian Capital Territory [2011] ACTSC 154  14.1, 14.3 Ramsay v Madgwicks [1989] VR 1  5.109, 5.110 — v Pigram (1968) 118 CLR 271  26.65, 26.69, 26.93, 26.94, 26.113 — v Watson (1961) 108 CLR 642  21.32 Rank Film Distributors Ltd v Video Information Centre [1980] 2 All ER 273; [1980] 3 WLR 487  18.4, 18.35 — v — [1982] AC 380; [1981] 2 All ER 76  15.189, 15.235, 18.3, 18.4, 18.14 Raskin v Mediterranean Olives Estate Ltd [2017] VSC 94  29.30 Rawlinson & Hunter Trustees SA v Director of the Serious Fraud Office (No 2) [2015] 1 WLR 797  19.42

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Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47  3.48, 3.62, 3.67 Rayment v Ministry of Defence (1998) 47 BMLR 92  20.61 Raymond v Honey [1983] 1 AC 1  3.110 — v Tapson (1882) 22 Ch D 430  15.151 Rayner v Pethick [2006] SASC 70  17.66 RBS Rights Issue Litigation [2016] EWHC 3161  16.27 RDCW Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450  24.96 Read v Brown (1888) 22 QBD 128  13.8 Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989  17.56 Reches Pty Ltd v Tadrian Ltd (1998) 85 FCR 514  10.114 Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; [2000] FCA 457  29.41 Redfern v Mineral Engineers Pty Ltd [1987] VR 518  28.298 Redowood Pty Ltd v Goldstein Technology Pty Ltd [2004] NSWSC 515  28.275 — v Link Market Services Pty Ltd [2007] NSWCA 286  26.111 Reed Executive plc v Reed Business Information Ltd [2004] 4 All ER 942; [2004] EWCA Civ 887  17.15 Reeves v Butcher [1891] 2 QB 509  26.16 Refaat v Barry [2016] VSCA 189  25.79 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368  27.56, 27.57, 27.87 Regency Rolls Ltd v Carnall [2000] All ER 1417, CA  9.53 Regent Holdings Pty Ltd v Victoria (2012) 36 VR 424  13.42 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10  2.32, 7.15 Regie Nationale Renault v Zhang (2002) 210 CLR 491; [2002] HCA 10  14.69, 14.70 Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459  15.157 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309  24.78 Registrar of the Workers’ Compensation Commission of NSW v FAI Insurances Ltd [1983] 3 NSWLR 362  19.38 Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388; [2003] SASC 276  18.12, 18.40 Reichel v Magrath (1889) 14 App Cas 665  26.126

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Reichhold Norway ASA v Goldman Sachs [2000] 2 All ER 679; [2000] 1 WLR 173  5.155 Reid v Howard (1995) 184 CLR 1; 131 ALR 609  18.3 — v New Zealand Trotting Conference [1984] 1 NZLR 8  14.30 — v Robt Nettlefold Pty Ltd [1958] Tas SR 13  28.96 — v South West Regional College of Tafe [2015] WASCA 231  25.61 Reid, Hewitt & Co v Joseph [1918] AC 717  28.52 Relwood Pty Ltd v Manning Homes Pty Ltd (No 2) [1992] 2 Qd R 197  24.51 Remunations Planning Corp Ltd v Fitton [2001] NSWDC 1208  29.52 Repatriation Commission v Law (1981) 147 CLR 635  21.37 Republic of Costa Rica v Strousberg (1880) 16 QBD 8  24.22 Republic of Haiti v Duvalier [1990] 1 QB 202; [1989] 1 All ER 456  10.110 Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320  7.68 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd [1991] 22 NSWLR 730  10.81 Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2) (2012) 207 FCR 594; [2012] FCA 1138  17.29, 28.26 Reynolds, Ex parte (1882) 20 Ch D 294  18.12 Reynolds v Godlee (1858) 4 K & J 88; 70 ER 37  15.185 — v Kilpatrick (1992) 112 FLR 375  3.81 — v Kingston (City) Police Services Board (2007) 84 OR (3d) 738  21.95 — v Reynolds (1973) 1 ALR 318  3.81 — v — [1977] 2 NSWLR 295  14.57 Rhesa Shipping Co SA v Edmunds (‘The Popi M’) [1985] 2 All ER 712; [1985] 1 WLR 948  22.49 Ricci Burns Ltd v Toole [1989] 3 All ER 478; [1989] 1 WLR 993  10.175 Rice v Gordon (1843) 13 Sim 580; 60 ER 225  18.40 — v Henley (1915) 32 WN (NSW) 54  14.13 Rich v ASIC (2004) 220 CLR 129; 209 ALR 271; [2004] HCA 42  18.1, 18.22 — v Cook (1900) 110 LT Jo 94  28.186

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— v Harrington [2007] FCA 1987  16.6, 16.36 — v Long [2008] NSWSC 487  5.93 Richards v Kadian by his tutor Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328  3.99 Richardson v Forestry Commission (the Lemonthyme case) (1988) 164 CLR 261; 77 ALR 237; [1988] HCA 10  2.41 — v Hastings (1844) 7 Beav 354; 49 ER 1102  15.185 — v Oracle Corporation Australia Pty Ltd (No 2) [2014] FCAFC 139  27.87, 27.88 — v Redpath, Brown & Co Ltd [1944] AC 61  21.111 — v Trautwein (1942) 65 CLR 585  13.7 Richardson Pacific Ltd v Fielding (1990) 26 FCR 188  15.174 Riddick v Thames Board Mills Ltd [1977] QB 881; [1977] 3 All ER 677  15.181, 15.185, 15.192 Ridehalgh v Horsefield [1994] Ch 205  28.257, 28.265, 28.266, 28.272, 28.280, 28.287, 28.288, 28.294, 28.296 Ridgeland Properties Ltd v Bristol CC [2011] EWCA Civ 649  21.104, 21.105 Rigg v Associated Newspapers Ltd [2003] EWHC 710; [2003] All ER (D) 97  15.69 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264  11.78 Rinehart v Rinehart (No 3) [2016] FCA 539  29.56 Ring-Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] 1 NSWLR 798  15.102 Rio Tinto v Vale 14 Civ 3042 (RMP)(AJP) (2 March 2015)  15.94 Rio Tinto Ltd v Commissioner of Taxation (2006) 235 ALR 127; [2006] FCA 1200  16.39 Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547; [1978] 1 All ER 434  18.5, 18.14 Ritter v Godfrey [1920] 2 KB 47  28.79 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) (1987) 12 IPR 75  14.1 — v — (No 22) (1988) 14 NSWLR 132  16.57 Rizeq v Western Australia [2017] HCA 23  2.18, 2.38 Roache v News Group Newspapers Ltd [1992] TLR 551  27.117 Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35  15.132 Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114  15.131, 15.132, 15.133

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Roberts (FC) v Gill & Co Solicitors [2011] 1 AC 240; [2010] UKSC 22  7.73 Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192  24.57 Roberts v Prendergast [2013] QCA 89; Westpac Banking Corporation v Jamieson [2015] QCA 84  28.146 — v Rodier [2006] NSWSC 1084  23.55, 28.138, 28.177 — v Western Australia [2005] WASCA 37  26.80 Robertson v Unique Lifestyle Investments Pty Ltd [2007] VSCA 29  29.17 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426  22.71, 22.72 Rochefoucauld v Boustead (1896) 65 LJ Ch 794  16.84 Rochfort v Trade Practices Commission (1982) 153 CLR 134; 43 ALR 659  15.154, 15.160, 15.168, 18.5 Rockwell Machine Tool Co Ltd v E P Barrus (Concessionaires) Ltd [1968] 2 All ER 89; [1968] 1 WLR 693  15.83 Rodgers v Rodgers (1964) 114 CLR 608  17.23, 17.40 Rodi v Gelonesi [2016] NSWCA 348  28.284, 28.292 ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743; [1989] 1 WLR 902  14.28 Rogers v Home Secretary [1973] AC 388; [1972] 2 All ER 1057  19.31, 19.60 — v Legal Services Commission (SA) (1995) 64 SASR 572  26.117, 26.122 — v R (1994) 181 CLR 251  14.32, 26.63, 26.68, 26.77, 26.128, 26.132, 26.134 Roland Machinery Company v Dresser Industries, Inc 749 F 2d 380 (7th Cir 1984)  10.52, 10.53 Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013] SASCFC 124  14.56 Roneleigh Ltd v MII Exports Inc [1989] 1 WLR 619  5.162 Ronex Properties Ltd v John Laing [1983] QB 398  14.39 Rose v Lynx Express Ltd [2004] EWCA Civ 447  15.140 Rosengrens Ltd v Safe Deposit Centres Ltd [1984] 3 All ER 198  10.170 Rosing v Ben Shemesh [1960] VR 173  9.42 Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436; [2004] NSWCA 195  10.81 — v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50  10.79 — v Perpetual Trustees Victoria Ltd [2017] SASC 61  26.44 Roussel-Uclaf v G D Searle & Co Ltd [1977] FSR 125  10.58

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Roux v Australian Broadcasting Commission [1992] 2 VR 577  15.42, 15.162 Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants VOF [1999] 2 Lloyd’s Rep 443  23.21 Rowe v Ausnet Electricity Services Pty Ltd (Ruling No 5) [2015] VSC 8  22.49 — v Stoltze (2013) 45 WAR 116; [2013] WASCA 92  26.117, 26.131 Roy v Prior [1971] AC 470  21.100 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49  3.90 Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431  14.53 Royal Brompton Hospital National Health Service Trust v Hammond [2001] EWCA Civ 550; [2001] All ER 130  9.98, 9.100 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88  22.24 RP Data Ltd v Western Australian Land Information Authority (2010) 272 ALR 332  19.39 RT Co Pty Ltd v Minister of State for Interior [1957] HCA 39; (1957) 98 CLR 168  9.40, 9.41 Ruby Wells NL v Bailiff of the District Court (1990) 2 WAR 448  24.30 Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) (in liq) [2012] UKSC 55  15.210 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280; [1988] 3 All ER 737  17.2, 17.3, 17.11, 17.18, 17.34, 17.35, 17.36, 17.40, 17.48, 17.64 Russell v Chilman (1999) 17 WAR 1  29.60 — v Russell (1880) LR 14 CH D 471  29.45 — v — (1976) 134 CLR 495  3.18, 3.48, 3.50 Russo v Russo (No 2) [2015] NSWSC 449  28.61, 28.64 Rust v Barnes [1980] 2 NSWLR 726  1.20, 1.27, 11.29 Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480  15.225

S S, Re [1948] VLR 11; [1948] 1 ALR 81  18.6 S v Gloucestershire County Council [2001] Fam 313; [2000] 3 All ER 346  9.100 — v Switzerland (A/220) (1991) 14 EHRR 670  16.16 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358  3.45

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S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13  22.106 Saad v New South Wales [2013] NSWSC 154  20.5 Sabre Corp Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428  15.176, 15.177 Sacks v Permanent Trustee Australia Ltd (1993) 45 FCR 509; [1993] FCA 502  28.235 Salemi v MacKellar (No 2) (1977) 137 CLR 396  3.73 Sali v SPC Ltd (1993) 116 ALR 625  1.71, 1.82, 1.87 Salmi v Sinivuori [2008] QSC 321  28.227 Salter v Director of Public Prosecutions [2009] NSWCA 357  23.1 Samimi v Seyedabadi [2013] NSWCA 279  10.108 Samnakay v Scholfield [2013] WASCA 138  17.19, 17.23 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156  10.24, 10.38, 10.40, 10.41, 10.43, 10.93 Samuel Allen & Sons Ltd v Mayfield Homes Pty Ltd; Commissioner for Railways [1979] Qd R 68  24.47 Samuel Smith Old Brewery (Tadcaster) v Lee (t/as Cropton Brewery) [2011] EWHC 1879  21.10 Sanderson v Bank of Queensland Ltd [2016] QCA 137  3.137 — v Blyth Theatre Co [1903] 2 KB 533  28.64 Sandery v Kowalski [2017] SASC 29  9.49 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505; [1978] HCA 43  3.94, 19.4, 19.5, 19.23, 19.28, 19.29, 19.31, 19.36, 19.40, 19.59, 19.60 Sardinia Sulcis and Al Tawwab, The [1991] 1 Lloyd’s Rep 201  13.31 Sargent v South Western Area Health Service [2010] NSWSC 1506  10.178 Saunders v Smith (1838) 3 My & Cr 711; 40 ER 1100  10.11 Savage v Chief Constable of the Hampshire Constabulary [1997] 2 All ER 631; [1997] 1 WLR 1061  19.41 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213  5.92, 5.95, 5.97, 5.101, 5.103, 6.40, 6.41, 6.43, 8.26, 8.27, 8.28, 8.29, 10.87 Save the Ridge v Commonwealth [2004] FCA 1289  10.68 Savings & Investment Bank v Gray (10 August 1990, unreported)  15.189 Savings & Investment Bank Ltd (in liq) v Fincken [2004] 1 All ER 1125; [2003] EWCA Civ 1630  17.44

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— v Finckent (19 February 2003, unreported)  17.75 SB v New South Wales (by her Litigation Guardian) [2004] VSC 513  21.47 Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411  27.69, 27.70 Scarborough v Lew’s Junction Stores Pty Ltd [1963] VR 129  24.9 Scarce v Killalea [2003] WASCA 81  3.138, 3.139 Schagen v R (1993) 8 WAR 410  3.139 Schmidt v Won [1998] 3 VR 435  6.37, 6.38 Schnabel v Lui [2002] NSWSC 15  24.97, 26.141, 26.142 Schutt v Queenan [2000] NSWCA 341  15.102 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283  14.8, 14.9 Science Research Council v Nassé; BL Cars Ltd (formerly Leyland Cars) v Vyas [1980] AC 1028; [1979] 3 All ER 673  15.199, 15.200, 19.15 Scope Data Systems Pty Ltd v BDO Nelson Parkhill (2003) 199 ALR 56; [2003] NSWSC 137  24.7, 24.10 Scott v Avery (1856) 10 ER 1121  29.21 — v City of Castlemaine [1972] VR 570  1.20, 11.29 — v Scott [1913] AC 417  3.50, 3.81 Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151  17.2 Scruttons v Midland Silicones Ltd [1962] AC 446  29.26 Seabrook Estate Co Ltd v Ford [1949] 2 All ER 94  24.48 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180  7.5, 7.19 Searose Ltd v Seatrain (UK) Ltd [1981] 1 All ER 806; [1981] 1 WLR 894  10.96 Seaward v Paterson [1897] 1 Ch 545  24.75 Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153  22.47 Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] Ch 1  26.136 Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 11 ALR 553  28.241, 28.249 Secure Funding Pty Ltd v Conway [2013] NSWSC 1536  28.107 — v Stark (2015) 293 FLR 453  25.34

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Securum Finance Ltd v Ashton [2001] Ch 291; [2000] 3 WLR 1400  26.131 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390  15.102 Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167  10.67 Selig v Wealthsure Pty Ltd (2015) 255 CLR 661; [2015] HCA 18  28.213 Selim v McGrath (2004) 48 ACSR 681; [2004] NSWSC 129  15.159 Sengupta v Holmes [2002] EWCA Civ 1104  3.31 Senior v Holdsworth; Ex parte Independent Television News Ltd [1975] 2 All ER 1009  15.167 Sepa Waste Water Treatment Pty Ltd v JMT Welding Pty Ltd (1986) 6 NSWLR 41  16.38 Separate Representative v E (1993) 114 FLR 1  3.81 Serious Fraud Office v Eurasan Natural Resources Corporation Ltd [2017] EWHC 1017  16.50 Serves v France (1998) 28 EHRR 265  18.12 Setka v Honourable Tony Abbott MP [2013] VSCA 376  28.31 Seven Network (Operations) Ltd v Harrison [2017] NSWSC 129  10.58, 10.59 Seven Network Ltd v News Ltd (2007) 244 ALR 374; [2007] FCA 1489  27.108 — v — [2007] FCA 2059  28.178 — v — (No 5) (2005) 216 ALR 147; [2005] FCA 510  15.163 — v — (No 9) (2005) 148 FCR 1; [2005] FCA 1394  3.61 Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102  10.109, 10.134 SFO v ENRC [2017] EWHC 1017  16.27 Shannon v Lee Chun (1912) 15 CLR 257  1.17, 1.24, 11.29 — v Whiting (1900) 26 VLR 392; Douglas v Morning Post Ltd (1923) 39 TLR 402  15.113 Sharjade v Darwinia Estate Pty Ltd [2006] NSWSC 708  10.154 Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291  13.22 — v — [2006] FCA 1  10.118 Sharp v McGivney [1951] VLR 143  13.19 — v Rangott (2008) 167 FCR 225; [2008] FCAFC 45  11.11, 11.19 Sharpe v Smail (1975) 5 ALR 377  15.107, 15.113, 15.114

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Shaw v Gadens Lawyers [2014] VSCA 74  26.68, 26.109 — v Jarldon (1999) 76 SASR 28; [1999] SASC 529  27.47, 27.48, 27.84, 27.87, 27.88, 27.89 — v Yarranova Pty Ltd [2011] VSCA 55  28.91 Sheales v The Age Company Pty Ltd (Costs Ruling) [2017] VSC 605  15.35 Shed People Pty Ltd v Turner (2000) 34 ACSR 609; [2000] SASC 196  16.93, 16.96 Shephard, Re; Atkins v Shephard (1889) 43 Ch 131  24.61 Sheldon v Brown Bayley’s Steel Works Lld and Dawnays Ltd [1953] 2 QB 393  6.52 Shepherd Homes Ltd v Sandham [1971] Ch 340; [1970] 3 All ER 402  10.60, 10.61 Shepperdson v Lewis (1966) VR 418  9.48, 9.68 Sherborne Estate (No 2), Re; Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003  28.138, 28.177, 28.237 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31  25.13 Ship Sun Diamond v The Ship Erawan (1975) 55 DLR (3d) 138  21.109 Shire of Gisborne v King [1995] 1VR 103  28.288 Shire of Yarra Ranges v Russell (2009) 25 VR 560  25.21 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38  29.32 Short v Mercier (1851) 3 Mac & G 205; 42 ER 239  18.11 Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185  11.63 Sidebottom v Commissioner of Taxation (2003) 6 VR 302  18.1 Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595  10.58 Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317  13.12 Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) (2004) 214 ALR 621; [2004] FCA 1570  17.1, 17.65, 17.67 Silvia v Brodyn Pty Ltd [2007] NSWCA 55  28.84, 28.228 Simpson v Forrester (1973) 132 CLR 499  24.29 — v Norfolk and Norwich University Hospital NHS Trust [2011] EWCA Civ 1149  21.43 Simsek v MacPhee (1982) 148 CLR 636  15.232 Sinanovic’s Application, Re (2001) 180 ALR 448; [2001] HCA 40  25.106, 25.107

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Sinclair Investment Holdings SA v Cushnie [2006] EWHC 219 (Ch)  9.73 Singh v Singh (No 3) [2010] WASC 64  22.105 Sino Iron Pty Ltd v Palmer [2014] QSC 259  14.43 Sinopharm Jiangsu Co Pty Ltd v Bank of China [2007] NSWSC 484  15.141 Siskina (Owners of cargo lately laden on board) v Bertola SA [1979] AC 210; [1977] 3 All ER 803  10.8 SJX v State of Western Australia [2010] WASCA 243  22.97 Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281  28.138 Slack v Winder (1874) 5 AJR 72  24.26 Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 232  17.28 Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (No 7) [2011] FCA 1359  29.55 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323  27.37, 27.39 Smirski v Macandar [2010] NSWSC 929  22.105 Smith v Director of Serious Fraud Office [1992] 3 All ER 456  18.31 — v Foley [1912] VLR 314  13.9 — v Gould [2012] VSC 210  17.41 — v Harris [1996] 2 VR 335  3.61 — v Jones and Southam Inc [1999] 1 SCR 455  16.10 — v Jovanoska (No 2) [2013] VSC 714  27.63 — v NRMA Insurance Ltd [2016] NSWCA 250  28.232 — v R (1985) 159 CLR 532  3.138 — v — (1990) 64 ALJR 588  21.19 — v — (1991) 25 NSWLR 1  24.73 — v — (2001) 206 CLR 650; [2001] HCA 50  3.95 — v Read (1737) 1 Atk 526; 26 ER 332  18.3 — v Starke, Re; Action Paintball Games Pty Ltd (in liq) (No 3) [2016] FCA 40  27.28 — v Western Australia (2000) 98 FCR 358; [2000] FCA 526  19.15

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Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194; [1991] HCA 43  25.99, 25.100 SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498  15.181 SmithKline Beecham plc v Apotex Europe [2003] EWCA Civ 137  10.49 Snowstar Shipping Co Ltd v Graig Shipping Plc (2) Sports Bank [2003] EWHC 1367  15.145 Sobey v Commissioner of Taxation [2008] FCA 1621  28.28, 28.70 — v Sobey [2014] VSC 373  24.18 Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310; [1990] 3 All ER 283  18.4, 18.15 Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871; [1987] 3 All ER 510  5.166, 5.167 Society of Lloyd’s v Jaffray, The Times, August 3, 2000  11.11 Soh v Commonwealth [2008] FCA 1524  10.155 Soia v Bennett [2014] WASCA 27  28.241, 28.242 Soinco SACI v Novokuznetsk Aluminium Plant [1997] 3 All ER 523  24.63, 24.64 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628  26.52 Solak v Registrar of Titles (2011) 33 VR 40; [2011] VSCA 279  26.109, 26.110, 26.111 Solicitors, Re a Firm of [1997] Ch 1; [1995] 3 All ER 482  22.42 Somatra Ltd v Sinclair Roche & Temperley [2000] 1 Lloyd’s Rep 311  17.44 — v — [2000] 1 WLR 2453; [2000] 2 Lloyd’s Rep 673  17.12, 17.44, 17.46 Song v Ying (2010) 273 ALR 213; [2010] NSWCA 237  18.26 Soper v Matsukawa [1982] VR 948  5.95 Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237  18.3, 18.10, 18.12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247  3.84, 3.85, 3.86, 3.87, 3.88, 23.12 South Australia v Barrett (1995) 64 SASR 73  16.89, 16.96 — v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373; [1942] HCA 14  2.41 — v Peat Marwick Mitchell (1995) 65 SASR 72  16.6, 16.86, 16.87 — v Totani (2010) 242 CLR 1; [2010] HCA 39  2.17 South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120; [1999] FCA 1710  10.68

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Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (1998) 84 FCR 472  16.86 Southern Cross Commodities Pty Ltd v Crinis [1984] VR 697  16.31 Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200  25.66, 25.67 Southern Equities Corp Ltd v Bond [2000] SASC 450  3.31 — v West Australian Government Holdings Ltd (1993) 10 WAR 1  16.6, 16.41, 16.57 Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166; [1997] SASC 6712  16.6, 16.79, 17.72 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710  15.165 Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337  10.66 Southland Coal Pty Ltd (recs and mgrs apptd) (in liq), Re (2006) 203 FLR 1; 59 ACSR 87; [2006] NSWSC 899  16.6, 16.61 Southwark Co v Quick (1878) 3 QBD 315  16.56 Southwell v Jackson [2012] QDC 65  28.310 Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd [2003] NSWSC 1120  21.96 Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262  23.41 Spandideas v Vellar [2008] VSC 198  26.27 Sparnon v Apand Pty Ltd [1998] FCA 164  28.94 Special Minister for State v Quin (1984) 3 FCR 293  19.30 Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652  27.87, 27.92 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227  9.13 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921  15.169 Spencer v Commonwealth (2010) 241 CLR 118  9.79, 9.80, 9.92, 9.96, 26.83, 26.127 SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150; [2006] FCA 931  15.177 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691  23.43 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460; [1986] 3 All ER 843  2.50, 2.52, 5.158, 5.160, 5.161, 5.162, 14.71, 14.72 Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248  22.42 Spooner v Webb (1997) Times, 25 April (CA)  1.71

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Sportsbet Pty Ltd v New South Wales (No 3) [2009] 262 ALR 27  19.3 Spotless Group Pty Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201  16.104 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290  17.56 Sroka v Gorbal & Scott (1980) 25 SASR 356  15.53 St Barnabas Nominees Pty Ltd v Stallard Corp Pty Ltd (No 2) [2011] WASC 289  9.34 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360  15.130, 15.138 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36  2.38 Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535  26.46 Stageman v St John Ambulance Association in Western Australia Incorporated [2010] WASC 203  10.49 Staines v Walsh [2003] All ER (D) 117 (Jun); [2003] EWHC 1486 (Ch)  10.85 Stambulich v Ekamper (2001) 48 ATR 159; [2001] WASCA 283  27.117 Standard Bank plc v Agrinvest International Inc [2009] EWHC 1692 (Comm)  9.53 Standex International Ltd v C B Blades Ltd [1976] FSR 114  10.18 Stanley v Layne Christensen Company [2006] WASCA 56  28.75 — v Phillips (1966) 115 CLR 470  28.99, 28.133 Stanton v Callaghan [2000] 1 QB 75; [1998] 4 All ER 961  21.97, 21.99 State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423  26.129 State of Western Australia v Elliott [2012] WASC 174  21.18 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51  23.33, 23.46 — v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3  25.7 State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382  29.14 Stateliner Pty Ltd v Legal & General Assurance Society Ltd (1981) 29 SASR 16  15.118 Steel, In the Marriage of [1992] 107 FLR 143  17.46 Steel Corp v Granada Television Ltd [1981] AC 1096  15.214 Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683; [2003] QCA 157  14.52, 28.256, 28.282, 28.283, 28.284, 28.296 Stern v Sekers [2010] NSWSC 59  11.22

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Stevedoring Industry Finance Committee v Ronald J Gibson (2000) 20 NSWCCR 417; [2000] NSWCA 179  28.62, 28.63 Steward v Deputy Commissioner of Taxation (2010) 76 ATR 66; [2010] FCA 402  7.79 Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 331; [2014] HCA 31  27.38 — v Miller [1972] 2 NSWLR 128  15.127 Still v Investec [2014] FCA 655  14.15 Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87  10.91, 10.92 Suncare Constructions Australia Pty Ltd v Gainspace (Mackay) Pty Ltd [2016] QSC 67  10.166 Stojanovski v Stojovski [2016] NSWSC 976  28.202 Stollznow v Calvert [1980] 2 NSWLR 749  9.57 Stone v Smith (1887) 35 Ch D 188  22.105 Strachan v Gleaner Co Ltd [2005] UKPC 33; [2005] 1 WLR 3204  9.49, 9.50 Strachan Thomas v Clough [1999] SASC 298  28.242 Straits Exploration (Australia) Pty Ltd v Murchison United NL (2005) 31 WAR 187; [2005] WASCA 241  29.16, 29.18, 29.32 Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17  7.22 Stuart v Goldberg Linde [2008] 1 WLR 823; [2008] EWCA Civ 2  7.23 Subramaniam v Public Prosecutor [1956] 1 WLR 965  22.93 Suburban Properties Ltd v Swycher [1976] Ch 319  3.87 Sudgen v Sudgen (2007) 70 NSWLR 301; [2007] NSWCA 312  16.74 Suh v Cho [2013] VSC 491  15.42 Sullivan v Department of Transport (1978) 1 ALD 383  23.45 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287; [2008] QCA 398  27.108 Summers v Repatriation Commission (No 2) [2015] FCAFC 64  28.76, 28.266 Sun Life Assurance Co of Canada v Jervis [1944] AC 111; [1944] 1 All ER 469  25.21 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71  3.42 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863  15.63 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4  22.1

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Sweeney v Wallace [2002] WASCA 248  22.24 Sybron Corporation v Barclays Bank plc [1985] Ch 299  15.185, 15.189 Sykes v Sykes (1869) LR 4 CP 645  10.153 SZ v Minister for Immigration and Multicultural Affairs (2000) 172 ALR 172  13.18 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63  3.70 SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137  14.7 Szymanska v Szymanski (No 3) [2016] SASC 74  27.40

T Tagg v South Devon Rly Co (1849) 12 Beav 151; 50 ER 1017  15.185 Taheri v Vitek (No 2) [2014] NSWCA 344  27.32 Tait v Bindal People [2002] FCA 322  10.172 Talacko v Talacko [1999] VSC 81  26.146 — v — [2009] VSC 349  10.17, 10.131, 10.132 Talbot v Marshfield (1865) 2 DR & Sm 549  16.83 Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93  17.52 Tanious v Dedousis (No 2) [2014] NSWSC 1361  25.34 Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332  26.121, 29.39 Tasmania v Chatters (No 2) [2017] TASSC 74  11.85 Tassilo Bonzel & Schneider (Europe) AG v Intervention [1991] RPC 43  15.191 Tate Access Floors Inc v Boswell [1991] Ch 512; [1990] 3 All ER 303  15.188, 15.250, 18.13 Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055  24.7, 24.40 Taunton-Collins v Cromie & Ors [1964] 1 WLR 633  29.40 Taylor v Anderton (Police Complaints Authority intervening) [1995] 2 All ER 420; [1995] 1 WLR 447  19.14 — v Ansett Transport Industries Ltd (1987) 18 FCR 342  26.94 — v Batten (1878) 4 QBD 85  15.57 — v Burgess [2002] NSWSC 676  22.71

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— v Director of Serious Fraud Office [1999] 2 AC 177; [1998] 4 All ER 801  3.102, 15.181, 15.184, 21.95 — v Johnson (1983) 151 CLR 422  26.40 — v Rundell (1841) Cr & Ph 104; 41 ER 429  15.52 — v Saloniklis [2013] FCA 679  15.15 — v Santos Ltd (1998) 71 SASR 434  15.43, 15.44 — v Taylor (1979) 143 CLR 1; 25 ALR 418; [1979] HCA 38  6.40, 8.33, 9.45, 11.80, 22.106, 23.45 — v Telstra Corporation Ltd [2007] FCA 2008  13.42, 13.83 Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; [1992] FCA 296  10.145 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5  3.15, 3.18, 3.115, 29.37, 29.49 T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102  5.103, 5.106, 5.107 Tejendrasingh v Metsons [1997] EMLR 597  14.56 Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254  5.108 Telesto Investments Ltd v UBS AG (2013) 94 ACSR 29; [2013] NSWSC 503  24.97, 26.141, 26.142, 26.143, 26.146 Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34  15.239 Telfer v Telfer (2014) 87 NSWLR 176  25.35 Telstra Corp v Australis Media Holdings Ltd (1997) 41 NSWLR 277  17.7 Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7  15.138 Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 78 FCR 132; [1997] FCA 860  10.61 — v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445  16.6, 16.36 Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133  17.71 Terence James Guthrie, Re v Michael Robertson [1987] FCA 96  24.12 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported)  28.147, 28.150 Thalanga Copper Mines Pty Ltd v Brandrill Ltd [2004] NSWSC 349  10.154 Thames Investment & Securities plc v Benjamin [1984] 3 All ER 393  14.13 Thannhauser v Westpac Banking Corporation (1991) 31 FCR 572  21.15

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Theodore v Australian Postal Commission [1988] VR 272  15.43, 15.44 Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289  15.237 Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 513–14; [1972] HCA 41  9.80 Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341  16.86 Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645  10.103, 10.113 Thoday v Thoday [1964] P 181; [1964] 1 All ER 341  26.75, 26.92 Thomas v Balanced Securities Ltd [2012] Qd R 482; [2011] QCA 258  14.56 — v Morgan (1835) 150 ER 214  17.16 — v Powercor Australia Ltd (Ruling No 1) [2010] VSC 489  13.42 — v Queensland [2001] QCA 336  7.74, 7.75 — v SMP5 (International) Pty Ltd [2010] NSWSC 822  1.78 — v Yates [2008] NSWSC 282  29.56 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72  3.76, 8.26, 8.34, 10.80, 15.244, 15.245 Thomas Bishop Ltd v Helmville Ltd [1972] 2 WLR 149  9.40 Thompson v Dal Cin [2006] NSWSC 1249  20.19 — v Park [1944] KB 408  10.16 Thomson v Lord Clanmorris [1900] 1 Ch 718  26.17 — v STX Pan Ocean Co Ltd [2012] FCAFC 15  7.78 Thomson Australia Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48  23.48 Three Rivers v Bank of England (No 5) [2002] EWHC 2730  16.27 Three Rivers District Council v Governor and Company of the Bank of England (Disclosure) (No 5) [2003] EWCA Civ 474; [2003] QB 1556  16.8, 16.13, 16.18, 16.27, 16.75, 16.76 — v — (No 3) [2001] UKHL 16; [2003] 2 AC 1; [2001] 2 All ER 513  7.20, 7.22, 9.96 — v — (No 6) [2004] UKHL 48; [2005] 1 AC 610  16.6, 16.8, 16.9, 16.10, 16.18, 16.39, 16.64, 16.75 Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572  11.44 Tickell v Trifleska Pty Ltd (1999) 25 NSWLR 353  27.55 Tile Centre v Symons [1972] VR 965  24.48

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Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769  20.73 Timbercorp Finance Pty Ltd (in liq) v Allan [2016] VSC 481  6.53 — v Collins (2016) 339 ALR 11; [2016] HCA 44  13.42, 26.107, 26.109, 26.110 Times Newspapers Ltd v Attorney-General (1991) 20 IPR 609  24.82 Timms v Clift [1998] 2 Qd R 100  27.117 Tingle Jacobs & Co v Kennedy [1964] 1 All ER 888n; [1964] 1 WLR 638n  22.56 Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 664  5.53 Titelius v Public Service Appeal Board (1999) 21 WAR 201; [1999] WASCA 19  3.57 Titheradge v R (1917) 24 CLR 107; 24 ALR 77; [1917] HCA 76  11.11 Tiver v Tiver [1969] SASR 40  15.103 TK v Australian Red Cross Society (1989) 1 WAR 335  3.65 TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693  15.72 Toben v Nationwide News Pty Ltd (2016) 338 ALR 329; [2016] NSWCA 296  14.27 Todd v Adam [2002] EWCA Civ 509; [2002] 2 All ER (Comm) 1  25.8 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135  5.95, 5.96, 5.105, 5.109 Tole, Re (1933) 50 WN (NSW) 216  5.30 Toll (FHL) Ltd v Finemore [2001] VSC 467  2.50 Tomasetti v Brailey [2012] NSWCA 6  10.112, 10.137 Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289  28.284 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369  25.34; 25.61 Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201  17.52, 17.53 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28  13.9, 14.31, 14.32, 26.64, 26.65, 26.69 , 26.72, 26.77, 26.84, 26.92, 26.101, 26.102, 26.112, 26.114, 26.115, 26.116, 26.126, 26.129, 26.130 Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57  29.37 Tongue v Tamworth City Council [2004] FCA 972  13.42 Tony Basile, Re; Ex parte Eric John Ancich (1985) 8 FCR 287; [1985] FCA 341  24.12 Tony Blain Pty Ltd v Jamison (1993) 26 IPR 8  15.265

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Town & Country v Partnership Pacific (1988) 20 FCR 540; 97 ALR 315  10.83 Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540  15.249 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; 123 ALR 503  18.5, 18.8 — v Arnotts Ltd (1989) 88 ALR 69  17.3, 17.23 — v — (No 2) (1989) 88 ALR 90  15.163 — v — (No 4) (1989) 21 FCR 318  21.75 — v — (No 5) (1990) 21 FCR 324  15.153 — v Manfal Pty Ltd (in liq) (1991) 33 FCR 382  14.10 — v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213  28.79 — v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366  17.7 — v Sterling (1979) 36 FLR 244  16.21 — v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384  13.18 Tramountana Armadora SA v Atlantic Shipping Co SA [1978] 1 Lloyd’s Rep 391  29.13 Tran v Claydon [2003] WASCA 318  23.12 Transpacific Pty Ltd v Prudential Retirement Insurance & Annuity Company (No 2) [2011] FCA 1215  29.55 Travelodge Australia Ltd, Re (1978) 21 ACTR 17  10.164 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326  29.16 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406  26.90, 26.92, 26.116, 26.117, 26.142 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; 318 ALR 121; [2014] VSCA 351  28.47, 28.48 Triplex Safety Glass Co Ltd v Lance Gaye Safety Glass (1934) Ltd [1939] 2 KB 395  18.8 Trkulja v Dobrijevic [2015] VSCA 281  9.42 Trlin v Marac Finance Australia Ltd [1985] NSWJB 70  24.9 Trobridge v Hardy (1955) 94 CLR 147  9.80 Trop Nominees Pty Ltd v Liquor Licensing Commissioner (1987) 46 SASR 255  13.22 Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565  13.37 Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213  26.122

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TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd [2017] VSC 86  9.42, 9.45, 9.47, 9.54 Tschirn v Australian Executor Trustees Ltd [2015] SASC 58  9.96 Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249  10.64 Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120  26.61 Turf Enterprises Pty Ltd, Re [1975] Qd R 266  17.44 Turton v Benson (1718) 24 ER 488  17.16 Twist v Randwick Municipal Council (1976) 136 CLR 106  3.81 Twycroft v Grant [1875] Eng WN 201  15.76 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31  6.41 Tyler v Thomas (2006) 150 FCR 357; [2006] FCAFC 6  21.75 Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5  14.31

U Uber BV v Howarth [2017] NSWSC 54  10.59 Ul-Haq v Shah [2010] 1 All ER 73; [2009] EWCA Civ 542  14.67 Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050  29.55 Underhill v Devereux (1669) 2 WMS Saund 71; 85 ER 715  24.13 Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481; [1993] FCA 420  2.39 Unilever v Chefaro [1994] FSR 135  15.46 — v Procter & Gamble [1999] 2 All ER 691  17.19 Unilever v Procter & Gamble [2001] 1 All ER 783; [2000] 1 WLR 2436  17.4, 17.12, 17.19, 17.21, 17.74, 17.75 Unimin Australia Ltd v Queensland [2010] QCA 169  21.18 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55  2.40 Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277  14.57 United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177  29.18, 29.20 United States v White 322 US 694 (1944)  18.8 United States of America v Philip Morris Inc [2004] EWCA Civ 330; [2004] 1 CLC 811  16.6, 16.18 United States Shipping Board v Ship St Albans [1931] AC 632  21.10

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United States Tobacco Co v Minister of Consumer Affairs  13.15 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; [1998] HCA 38  3.110, 17.10 Universal Music (Australia) Pty Ltdv Sharman Licence Holdings Ltd, Re; Ex parte Merlin BV (2008) 222 FCR 580; [2008] FCA 783  3.61 Universal Music Australia Pty Ltd v Cooper [2004] FCA 78  13.11, 13.19 — v Sharman License Holdings Ltd [2005] FCA 1587  10.118 Universal Thermosensors Ltd v Hibben [1992] 3 All ER 257  15.263 University of New South Wales v Moorhouse (1975) 133 CLR 1; [1975] HCA 26  23.18 University of Wollongong v Metwally (No 2) [1985] HCA 28  23.35 Upjohn Co v United States 449 US 383 (1981)  16.10 Upton and Wells Case (1589) 1 Leon 145; 74 ER 135  24.69 US Postal Service v Phelps Dodge Refining Corp 852 F Supp 156 (ED NY 1994)  16.54 UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2004] VSC 105  28.265 UYB Ltd v British Railways Board (2000) Times, 15 November  17.78

V Vacuum Oil Co Pty Ltd v Stockdale [1942] NSWSR 31; (1942) 42 SR (NSW) 239  9.45 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44  3.38, 3.39, 3.42, 3.43, 3.44, 3.45 Valantine v Technical and Further Education Commission (2007) 97 ALD 447; 166 IR 459; [2007] NSWCA 208  18.1, 18.3 Van Der Lee v New South Wales [2002] NSWCA 286  17.72, 17.73, 17.77 Van Leer Australia Pty Ltd v Palace Shipping KK (1991) 180 CLR 337; [1991] HCA 11  5.90, 5.94, 5.95, 5.96, 5.99, 5.106, 5.108, 5.110, 11.40 Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607; [1968] 3 All ER 824  9.97 Vandervell Trustees Ltd v White [1971] AC 912  13.14 Vanstone v Clark (2005) 147 FCR 299  25.24 Vantage Holdings Pty Ltd v Huang [2015] FCA 155  10.155 Vapormatic Co Ltd v Sparex Ltd [1976] 1 WLR 939  10.69 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35  14.43, 14.60

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Varga v Mandapati [2014] TASSC 25  5.92, 5.93, 6.40 Varley v Varley [2006] NSWSC 1025  10.56, 10.64 Vasil v National Australia Bank (1999) 46 NSWLR 207; [1999] NSWCA 161  18.3 Veda Advantage Ltd v Malouf Group Enterprises Pty Ltd (No 2) [2016] FCA 470  27.40 Veetemp Australasia Pty Ltd v GRD Group NT Pty Ltd [2012] NTSC 93  27.28 Velardo v Andonov [2010] VSCA 38  27.70 Velevski v R (2002) 187 ALR 233; [2002] HCA 4  21.21 Ventouris v Mountain (The Italia Express) [1991] 1 WLR 607  16.70, 16.72 Verge v Devere Holdings Pty Ltd (2009) 258 ALR 464; [2009] FCA 832  17.37, 17.59 Vernon v Bosley (No 2) [1997] 1 All ER 614  15.84, 21.2 Versailles Trade Finance Ltd (in administrative receivership) v Clough (2001) Times, 1 November  18.12 Vestris v Cashman (1998) 72 SASR 449  28.215, 28.217, 28.218 Victa Ltd v Johnson (1975) 10 SASR 496  5.90, 5.94, 5.95, 5.96, 11.40 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355  23.18 Victoria v Brazel (2008) 19 VR 553; [2008] VSCA 37  19.10, 19.28 — v Commonwealth (the Federal Roads case) (1926) 38 CLR 399; [1926] HCA 48  2.41 — v Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 575; [1957] HCA 54  2.41 — v Davies (2003) 6 VR 245  9.44 — v Horvath (No 2) [2003] VSCA 24  28.61, 28.62, 28.64 — v Seal Rocks Pty Ltd (2001) 3 VR 1; [2001] VSCA 94  19.39, 19.60 Victoria University of Technology v Wilson [2003] VSC 299  10.109, 10.113 Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129  10.18 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34  25.15, 25.16, 25.17, 25.91 Victorian Women Lawyers’ Association Inc v Commissioner of Taxation [2008] FCA 983  22.80 Victorian Workcover Authority v Kagan Bros Consolidated Pty Ltd (2011) 31 VR 386; [2011] VSCA 91  28.62 Vilenius v Heinegar (1962) 36 ALJR 200  25.60

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Village/Nine Network v Mecantile Mutual [1999] QCA 276  29.13 Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276  17.4, 17.10, 17.22, 17.35, 17.36 Vimplane Pty Ltd v Cirss [2005] VSC 45  9.44, 9.45 Violi v Commonwealth Bank of Australia [2015] NSWCA 152  9.44, 9.48, 9.52 Viro v R (1978) 141 CLR 88; [1978] HCA 9  2.9 Viscariello v Macks (No 6) [2010] SASC 303  15.174 Vishva Ajay, The [1989] 2 Lloyd’s Rep 558  5.162 Visyboard Pty Ltd v A-G (Cth) (1984) 2 FCR 113  14.10 Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135  23.60 Von Marburg v Aldred [2016] VSC 36  14.29 Von Reiser v Commonwealth [2009] FCAFC 172  28.241, 28.247 Von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109  3.119, 3.121 Voss v Suncorp-Metway (No 1) [2004] 1 Qd R 212  23.50 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55  2.50, 5.155, 5.158, 5.159, 5.160, 5.161, 5.162, 6.38, 14.25, 14.57, 14.69, 14.71 Vowell v Shire of Hastings [1970] VR 746  15.225 Voxson Pty Ltd v Telstra Corporation Ltd (No 7) [2017] FCA 267  7.73, 7.75 — v — (No 10) [2018] FCA 376  15.231 Vringo Infrastructure, Inc v ZTE (UK) Ltd [2015] EWHC 818  15.230 Vucadinovic v Lombardi [1967] VR 81  28.64

W W Dennis & Sons v West Norfolk Farmers (1943) 1 CG 220  16.94 W&A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527  28.134, 28.135, 28.136 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; 41 FLR 175  15.99, 15.102 WA Purvis Stores Pty Ltd v Richardson [1941] VLR 56  24.47 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24  3.10, 3.24, 3.83, 3.84, 3.85, 3.86, 19.47 Wakefield v Duke of Buccleugh (1865) 11 Jur NS 523; 12 LT 628  10.64

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Wakim v Coleman [2010] NSWCA 221  5.94, 5.95 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27  2.37, 2.38, 2.44, 2.45, 26.116 Waldridge v Kennison (1794) 1 Esp 142; 170 ER 306  17.18 Walford v Miles [1992] 2 AC 128  29.20 Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496  13.20 — v Wilsher (1889) 23 QBD 335  17.3, 17.44, 17.79 Wallabah Pty Ltd v Navillo Pty Ltd (1997) 23 ACSR 444  14.74 Wallace Smith Trust Co Ltd (in liq) v Deloitte Haskins & Sells (a firm) [1996] 4 All ER 403; [1997] 1 WLR 257  19.11, 19.35 Waller v Freehills [2009] FCAFC 89  28.242 Walsh v Police Association (2000) 140 IR 58; [2000] VSC 292  10.16 Walter v Buckeridge (No 3) [2010] WASC 68  20.5, 20.61 Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955  10.83 Walton v Gardiner (1993) 177 CLR 378  11.79, 11.82, 14.27, 14.31, 14.42, 26.83, 26.126, 26.127, 26.132 Wang v Anying Group Pty Ltd [2009] FCA 1500  9.93 — v Consortium Land Pty Ltd [2000] WASC 265  20.5 Wardle Fabric Ltd v G Myristis [1984] FSR 263  15.271 Wardley Australia Ltd v Western Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55  7.16, 7.74, 26.20 Wardrope v Dunne [1996] 1 Qd R 224  16.6, 16.111 Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478  18.3 Warner v Women’s Hospital [1954] VLR 410; [1954] ALR 682  16.41 Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354  15.203 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12  25.18 Waterford v Commonwealth (1987) 163 CLR 54  3.95, 16.6, 16.35, 16.36 Waters v P C Henderson (Australia) Pty Ltd (2009) 254 ALR 328; [1994] NSWCA 338  28.81, 28.82 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56  2.6, 3.13 Watkins v Queensland [2008] 1 Qd R 564  16.61

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Watson v M’Ewan, Watson v Jones [1905] AC 480  3.101, 3.102 — v Murray & Co [1955] 2 QB 1  24.29 — v Ramsay (No 2) (1962) 62 SR (NSW) 359  21.31 Waugh v British Railways Board [1980] AC 521; [1979] 2 All ER 1169  16.13, 20.2 Wayman v Hilliard (1830) 131 ER 39  17.17 Weal v Bottom (1966) 40 ALJR 436  21.5, 21.10, 21.30 Webb v Page (1843) 1 Carr & K 223; 174 ER 695  21.47 — v R (1994) 181 CLR 41  3.35 Website Corporation Pty Ltd v Alexander [2012] FCA 69  15.256 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57  9.80 — v Southwark London Borough Council [1983] 2 WLR 217  24.82 Weeks, Re; Ex parte Weeks [2016] WASC 25  22.61 Weldon v Neal (1887) 19 QBD 394  7.71 Welker v Rinehart [2012] NSWSC 599  15.178 Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1980) 29 ALR 261; 42 FLR 266  1.20, 11.29 Welsh v Digilin Pty Ltd (ACN 078 278 449) [2008] FCAFC 149  11.44 Wentworth v Attorney-General (NSW) (1984) 154 CLR 518  11.64 — v New South Wales Bar Association (1992) 176 CLR 239  3.73 — v Rogers [1999] NSWCA 403  28.255, 28.275, 28.278 — v — (No 5) (1986) 6 NSWLR 534  23.42, 28.149 Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255  10.66, 10.76, 10.77 West v Bristol Tramways [1908] 2 KB 14  22.41 — v Goodyear Tire & Rubber Co 167 F 3d 776; 779 (2d Cir 1999)  15.77 West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396  15.88 West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729  16.55 Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 54 FCR 144  19.15 — v Ward (2002) 213 CLR 1; [2002] HCA 28  25.14, 25.53

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Western Australian Museum v Information Cmr (1994) 12 WAR 417  19.1 Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79  5.93, 5.95, 5.102, 5.103, 5.110 — v Publishing and Broadcasting Pty Ltd [2011] NSWSC 433  9.57 Westpac Banking Corporation v 789ten Pty Ltd [2005] NSWCA 321  16.52 — v Garrett [2004] SASC 265  9.40 — v Hughes [2011] QCA 42  7.74 — v McArthur [2007] NSWSC 1347  10.108 — v Paterson (1999) 95 FCR 59; [1999] FCA 1609  2.39 WesTrac v Eastcoast [2008] NSWSC 894  29.56 Wheeler v Le Marchant (1881) 17 Ch D 675  16.13, 16.21, 16.22, 16.25 White v Northern Territory (1989) 97 FLR 122  9.68 — v Weston [1968] 2 QB 647; [1968] 2 WLR 1459  5.3, 5.5, 5.8, 5.23 White ACT (in liq) v G B White [2004] NSWSC 303  28.146 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; 29 ACSR 21  28.148, 28.256, 28.265, 28.267, 28.281 Whitehorn v R (1983) 152 CLR 657  11.11, 11.20 Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414  19.1, 19.28 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188  27.25, 27.35, 27.65, 27.67, 27.68, 27.79 Whittle v Filaria Pty Ltd [2004] ACTSC 131  27.30 Whyked Pty Ltd v Yahoo! 7 Pty Ltd [2008] NSWSC 477  28.275, 28.278 Wiedenhofer v Commonwealth (1970) 122 CLR 172; [1972] ALR 244; [1970] HCA 54  1.20, 11.29 Wiffen v Bailey [1915] 1 KB 600  14.63 Wik Peoples v Queensland (Pastoral Leases case) (1996) 187 CLR 1; [1996] HCA 40  2.58 Wilczynski v District Court of SA [2017] SASCFC 102  11.21 Wilden Pump & Engineering Co v Fusfield [1985] FSR 581  15.188 Wilkinson v Rogers (1864) 2 De GJ & Sm 62; 46 ER 298  10.27

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Willey v Synan (1935) 54 CLR 175; [1935] HCA 76  10.164 Williams, Re (1926) 26 SR (NSW) 383; 43 WN (NSW) 101  11.11 Williams v Chesterman [1992] QCA 198  24.8 — v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459  13.42 — v — (No 5) [2001] FCA 399  13.42 — v Hunt [1905] 1 KB 512  14.57 — v Prince of Wales Life, Etc, Co (1857) 23 Beav 338; 53 ER 133  15.185 — v Quebrada Railway, Land and Copper Co [1895] 2 Ch 751  16.79 — v Spautz (1992) 174 CLR 509  11.82, 11.86, 14.27, 14.43, 14.45, 14.46, 14.62, 14.63, 26.83, 26.127 Williams (as liquidator of Willahra Pty Ltd (in liq)) v Kim Management Pty Ltd [2012] QSC 143  8.26 Williams Aviation v Santos Ltd (1985) 49 SASR 272  15.174 Williamson v Schmidt [1998] Qd R 317  17.26 Willis v R [2016] VSCA 176  22.72 Wills v Bigmac Pty Ltd & Ford Motor Co of Australia Ltd (FCA, Heerey J, 9 December 1994, unreported)  27.85 Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713  17.23 — v Manna Hill Mining Pty Ltd (2004) 51 ACSR 404  13.22 Wilton v Farnworth (1948) 76 CLR 646; [1948] HCA 20  25.7 Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949  8.14 Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6  26.61 Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110  11.72 Winn v Garland Hawthorn Brahe (a firm) [2007] VSC 360  28.241, 28.246 Winters v Fogarty [2017] FCA 51  17.86 Witham v Holloway (1995) 183 CLR 525  11.72, 11.75, 24.73, 24.75, 24.76, 24.78, 24.84, 24.87 Witness v Marsden (2000) 49 NSWLR 429  25.69 Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405  9.57 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245  10.142, 10.152 Wood v Ghoz [2017] NSWSC 1561  15.22

Page 126 of 128 Table of Cases

Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21  21.41 Woodford v Smith [1970] 1 All ER 1091; [1970] 1 WLR 806  10.19, 10.47 Woodhouse & Co Ltd v Woodhouse (1914) 30 TLR 559  16.94 Woodland v Permanent Trustee Company Ltd (1993) 58 FCR 139; [1995] FCA 1388  28.235 Woodroffe v National Crime Authority (1999) 168 ALR 585; [1999] FCA 1689  19.19, 19.38 Woods v Duncan [1946] AC 401  14.76 — v Martins Bank Ltd [1959] 1 QB 55; [1958] 3 All ER 166  15.83 Woodside Energy Ltd v Electricity Generation Corp; Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7  17.56 Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529  19.11 Worchild v Peterson [2008] QCA 26  28.242 Work Cover Authority (NSW), (General Manager) v Law Society of New South Wales (2006) 65 NSWLR 502; [2006] NSWCA 84  16.39 World Square Pty Ltd v Taylor [1990] 1 Qd R 582  24.14 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241  15.215 Wright v Michael Wright Supplies [2013] EWCA Civ 234  29.52 WT Lamb & Sons v Rider [1948] 2 KB 331  24.14, 24.15 WTE Co-Generation v RCR Energy Pty Ltd [2013] VSC 314  29.16, 29.18

X X and Y v Z (2015) 123 SASR 298; [2015] SASC 96  16.39 Xabregas v The Owners - Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal (No 2) [2014] NSWSC 1027  28.279, 28.281 Xplore Technologies Corporation of America v Tough Corp Pty Ltd [2008] NSWSC 1267  24.96

Y Yara Australia Pty Ltd v Burrup Holdings Ltd (2010) 80 ACSR 641; [2010] FCA 1273  10.37, 10.41 — v Oswal (2013) 41 VR 302; [2013] VSCA 337  11.57, 11.61, 22.20, 28.6, 28.7, 28.209, 28.141, 28.142, 28.143, 28.150, 28.253 Yat Tung Investment Co Ltd v Dan Heng Bank Ltd [1975] AC 581  26.106 Yates v Boland [2000] FCA 1895  28.218

Page 127 of 128 Table of Cases

Yates’ Settlement Trusts, Re [1954] 1 All ER 619  14.76 Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316  9.42 Yokowaga Aust Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377  17.1, 17.18, 17.25, 17.36, 17.37 Young v Hughes Truman Pty Ltd (No 5) [2017] FCA 690  28.286 — v Lalic [2006] NSWSC 379  28.70 — v Quin (1985) 4 FCR 483; 59 ALR 225  19.38 YXW Pty Ltd v Sushi Sushi Franchising Pty Ltd [2016] VSC 538  17.47, 17.48 YZ v Amazon (No 7) [2016] NSWSC 637  14.50 Yzerman v Schofield [2011] WASC 200  5.131

Z Z v New South Wales Crime Commission (2007) 231 CLR 75; 233 ALR 17; [2007] HCA 7  16.31 Z Ltd v A-Z [1982] QB 558; [1982] 1 All ER 556  10.96, 10.104, 10.138 Zafiriou v Saint-Gobain [2014] VSCA 331  15.82, 15.82 Zanker v Kupsch [2014] SASCFC 13  11.11 Zappia v Registrar of the Supreme Court (2004) 90 SASR 193; [2004] SASC 375  18.40 Zarro v ASC (1992) 36 FCR 40  19.60 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457; [2005] NSWCA 438  26.89, 26.90 Zeid v Credit Suisse [2011] EWHC 716  21.10, 21.14 Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] QSC 135  29.16, 29.30, 29.31 Zemanek v Commonwealth Bank of Australia (FCA, 2 October 1997, unreported)  17.7 Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 99  28.97 Zhen v Mo [2008] VSC 300  10.116 Ziliotto v Hakim [2013] NSWCA 359  27.25, 27.35, 27.66, 27.68, 27.84 Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2  23.21 Zubulake v UBS Warburg LLC 217 FRD 219 (2003)  15.89 Zyprexa Prods Liability Litigation, Re 594 F 3d 113 (New York Court of Appeals, 2010)  13.62

Page 128 of 128 Table of Cases

End of Document

Table of Statutes Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Table of Statutes

Table of Statutes References are to paragraph numbers

Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976  29.28 Access to Justice (Civil Litigation Reforms) Amendment Act 2009 s 37N  28.269 Acts Interpretation Act 1901 s 28A  5.31 s 29  5.23, 5.31 Administrative Appeals Tribunal Act 1975  2.10, 25.13 Administrative Decisions (Judicial Review) Act 1977  2.10 Admiralty Act 1988  2.35 Australia Act 1986  2.4, 2.55 s 1  2.55 s 2  2.55 s 2(1)  2.40 s 2(2)  2.40 s 3  2.55 s 8  2.55 s 11  2.55 Australian Capital Territory (Self-Government) Act 1988  2.2, 2.3 Australian Consumer Law see Competition and Consumer Act 2010 Sch 2 Competition and Consumer Act 2010 Sch 2 s 18  5.161, 17.55, 26.90, 29.42 Australian Securities and Investments Commission Act 2001  4.52 s 12GN  10.98 Bankruptcy Act 1966  24.67, 25.30, 28.179 s 40(1)(g)  24.67 s 41(1)  24.67 s 41(3)  24.67 s 41(3)(b)  24.10

Page 2 of 135 Table of Statutes s 43  24.67 s 81(11AA)  18.16 s 116(2)  24.32 s 118  24.68 s 118(3)  24.68 s 119A  24.68 s 263(1)  17.76 Bankruptcy Regulations 1996  24.32 reg 6.03  24.32 reg 6.03B  24.32 Civil Dispute Resolution Act 2011  4.9, 4.10, 17.29, 29.51 Pt 4  4.9 s 1(a)  17.29 s 1(c)  17.29 s 4(1)  4.10 s 4(1A)  4.10 s 4(2)  4.10 s 6  17.29, 28.8, 28.77 s 6(1)  4.9, 17.30 s 6(2)  4.9, 6.5, 17.30 s 6(2)(b)  4.9 s 7  4.9, 6.5, 17.30, 28.8, 28.77 s 9  4.11 s 10  4.12 s 11  4.12, 17.30 s 12  28.77 s 12(1)  4.12 s 12(2)  4.11 s 12(3)  4.11 s 17A  17.31 Coastal Waters (State Powers) Act 1980  2.28 Coastal Waters (State Title) Act 1980  2.28 Commonwealth Electoral Act 1918  7.38 Competition and Consumer Act 2010  2.39, 18.19, 18.20 Pt IV  29.44 s 18  2.39 s 76  14.63 s 77  14.63 s 80(2)  10.9 s 86  2.34 s 86AA  2.14 s 137F  10.98, 10.116 s 155(1)  18.18, 18.20 s 155(5)  18.18 s 155(7)  18.17, 18.18, 18.19 Sch 2  2.39, 17.55 Constitution  3.1, 3.2, 3.3, 3.4, 3.6, 3.7, 3.8, 3.10, 3.12, 3.21, 25.106 Ch III  3.3, 3.6, 3.7, 3.9, 3.10, 3.15, 3.20, 3.110, 29.49

Page 3 of 135 Table of Statutes s 72  3.4 s 73  3.10, 25.92, 25.99 s 80  3.4 Copyright Act 1968  15.256 Corporations Act 2001  2.31, 4.52, 5.65, 5.91, 5.120, 12.11, 14.63 , 15.256, 16.89, 16.95, 24.11, 26.12, 28.179 Pt 5.4 Div 4  24.65 Pt 5B.2 Div 1A  5.66 Pt 5B.2 Div 2  5.66 s 9  5.65, 5.66 s 109X  2.31 s 109X(1)(a)  5.65 s 109X(1)(b)  5.65 s 109X(1)(c)  5.65 s 109X(1)(d)  5.65 s 180(2)  2.39 s 198F  16.89 s 236  28.230 s 242  28.230 s 247A(1)  16.95 s 297  16.52 s 305  16.52 s 440D(1)  14.73 s 459C(2)(a)  24.65 s 459C(2)(b)  24.65 s 459E  24.10, 24.65 s 459J  24.10 s 459J(1)(b)  24.11 s 459Q  24.10 s 468  24.66 s 500  24.66 s 500(2)  14.73 s 569  24.66 s 570  24.66 s 601CD  2.31 s 601CX  2.31 s 1317L  14.63 s 1323  10.98 s 1323(1)(h)  24.62 s 1324(4)  10.9 s 1335  10.141, 10.151, 10.152, 10.173 s 1335(1)  10.148 s 1349  18.22 Corporations Regulations 2001 reg 7.6.01AB(2)  28.199 Counter Terrorism Amendment Act 2016  19.52, 19.55 Crimes Act 1914 Pt III  3.100 Divs 1–4  3.100 s 35  3.100

Page 4 of 135 Table of Statutes Criminal Code Act 1995 s 13.4  22.41 Defamation Act 2005  3.106 Evidence Act 1995  2.47, 15.40, 15.220, 16.4, 16.74, 17.5, 17.7, 17.10, 17.23, 17.79 Pt 3.2  16.77 Pt 3.10 Div 1C  15.217 Pt 3.10 Div 3  17.10 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  8.14, 22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10 s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 92  26.82 s 117  16.6 s 118  16.3, 16.4, 16.26, 16.47, 17.7 s 118(c)  16.6, 16.20, 16.41, 16.56, 16.70 s 119  16.3, 16.4, 16.42, 16.47, 16.56, 16.64, 17.7 s 119(b)  16.55, 16.56, 16.61, 16.70 s 119(c)  16.6 s 120  16.6, 16.16, 16.64 s 120(1)(b)  16.70 s 121(2)  16.6, 16.82 s 122  16.6, 16.101 s 122(1)  16.98 s 122(2)  16.99, 16.100, 16.101, 16.102 s 122(3)  16.101, 16.102 s 122(5)  16.106, 16.107 s 122(5)(a)(i)  16.107

Page 5 of 135 Table of Statutes s 122(5)(c)  16.6, 16.87 s 124  16.6, 16.84 s 125  16.77 s 125(1)  16.6, 16.79 s 126  16.109 s 126J  15.218 s 126K  3.109 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 128(1)  18.6 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33, 27.24 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85, 27.24 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 135  20.73, 21.36, 21.41, 22.66 ss 135–136  20.73 s 136  20.73 s 137  21.36, 21.41 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 140(2)(c)  14.51 s 144  22.78, 22.79, 22.82 s 144(4)  22.84 s 169  15.225 s 172  8.14 s 187  18.8 s 191  22.14 Dictionary Pt 1  15.40 Evidence Amendment Act 2008 s 118  16.26 Sch 1  16.26 Fair Work Act 2009  14.63, 29.28 s 539  14.63

Page 6 of 135 Table of Statutes

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009  2.14, 7.42 Family Law Act 1975  2.13, 3.81, 23.9, 28.80 s 10J  17.81 s 10J(2)  17.83 s 69P  22.52 s 96(4)  25.13 s 114  10.9 Federal Circuit Court of Australia Act 1999  2.14 s 10  4.42 s 10A  2.14 s 15  10.9 s 43(2)(b)  7.13, 7.42, 7.83 s 82(2)  7.73 Federal Circuit Court Rules 2001  2.14 Pt 28  7.32, 7.34 Div 45.3  7.42 r 4.05  7.42 r 4.07  7.35 r 7.03(4)(b)  7.73 r 15A.07  15.158 r 45.04  7.42 r 45.11(1)(a)  7.42 r 45.12  7.42 Sch 1 Pt 1  28.179 Federal Court (Bankruptcy) Rules 2016 r 2.02  25.30 Federal Court (Corporations) Rules 2000  4.52 r 16.1  25.30 r 16.2  25.30 Federal Court of Australia Act 1976  1.14, 1.42, 2.10, 13.35, 24.83, 25.13 Pt IVA  13.38, 13.40, 13.41 Pt VAA  3.66, 15.204 Pt VAAA  3.119 s 5  4.42 s 17  3.48 s 17(4)  3.66 s 19  4.42 s 21  23.19 s 22  23.14 s 23  8.3, 10.9, 10.98, 15.119, 15.176 s 24  25.53 s 24(1)  25.5 s 24(1)(c)  25.52 s 24(1)(d)  25.52 s 24(1A)  10.93, 25.19 s 25(1AA)  25.52 s 27  25.53 s 28  25.76 s 29  24.7

Page 7 of 135 Table of Statutes s 31A  9.78, 9.92 s 31A(1)  9.91, 9.92, 9.93 s 31A(1)(b)  9.93 s 31A(2)  9.91, 9.92 s 31A(3)  9.91, 9.96 s 32AB  4.42 s 33(3)  25.99 s 33C  13.53, 15.54 s 33C(2)  13.54 s 33D  13.42 s 33G  13.42 s 33H  13.42 s 33J  13.42 s 33K  7.73, 13.42 s 33L  13.42 s 33M  13.42, 15.56, 13.57 s 33N  13.42, 13.55, 13.88 s 33Q  13.42, 13.79 s 33R  13.42, 13.79 s 33S  13.42, 13.79 s 33T  13.42 s 33V  13.42 s 33W  13.42 s 33X  13.42 s 33Y  13.42 s 33ZB  13.42 s 33ZE  13.42 s 35A  25.51 s 35A(6)  25.13 s 37AA  15.205 s 37AE  15.206 s 37AF  15.205 s 37AG(1)  15.205 s 37AG(1)(a)  15.205 s 37AG(2)  15.205 s 37AO(1)  3.120 s 37AO(3)  3.120 s 37AO(4)  3.120 s 37AQ  3.120 s 37M  1.42, 1.69, 12.17, 16.72, 28.269 s 37M(1)  1.42, 11.3 s 37M(2)  1.42, 11.3 s 37M(3)  1.42, 11.3 s 37M(4)  1.42 s 37N  12.17, 28.269 s 37N(1)  1.97, 1.105 s 37N(2)  1.105 s 37N(3)  1.105 s 37N(4)  1.105 s 37N(5)  1.105 s 37P  1.42, 11.3 s 37P(2)–(3)  15.119 s 39  11.20 ss 39–40  22.1 s 40  11.20 s 43  28.13 s 43(1A)  13.42 s 43(2)  28.205 s 43(3)  28.205 s 43(3)(c)  28.73

Page 8 of 135 Table of Statutes s 51  11.5 s 51A  23.54 s 51A(2)(a)  23.57, 23.61 s 52  23.54, 23.55, 23.61 s 53(1)  24.12 s 53A  29.51 s 53A(1A)  29.52 s 53B  17.84, 17.86 s 56  10.141 s 59(2B)  7.73 s 233ZF  15.119 Federal Court Rules 2011  1.42, 2.11, 5.53, 10.155, 12.15, 21.4, 28.30 , 28.55, 28.101, 28.112, 28.153, 28.243, 28.276 Ch 1 Pt 2 Div 2.2  4.58 Ch 3  7.39 Pt 3  25.30 Pt 7  10.1 Pt 7 Div 7.4  10.98 Pt 14  10.1 Pt 15  4.132, 7.32, 7.34 Pt 16  7.13, 7.40 Pt 17  8.2 Pt 18  24.29 Pt 20  15.14 Pt 28  29.51 Pt 42  24.83 Div 1.3  5.15 Div 10.6  5.148 Div 16.3  5.15 Div 26.2  7.76 Div 29.1  20.11 Div 34.4  5.126 O 6 r 7  13.11 O 6 r 8  13.11 O 62 r 19  28.99 r 1.32  9.8, 9.12, 11.50, 21.50 r 1.34  7.41, 9.8, 11.50 r 1.35  7.41, 9.8, 23.21, 27.82 r 1.39  5.15, 5.91, 11.5, 11.36 r 1.40  28.288 r 1.42  11.44 r 2.01(2)  5.16 r 2.11  4.9, 4.59, 4.62 r 2.12  4.9, 4.59, 4.62 r 2.21(1)(a)  5.13 r 2.21(1)(b)  5.13 r 2.21(1)(c)  5.13 r 2.21(1)(d)  5.13 r 2.22  5.13 r 2.23  5.13 r 2.25  5.17 r 2.25(b)  5.16 r 2.26  5.18, 11.81 r 2.27  5.18, 11.81 r 2.32(1)  5.19 r 2.32(2)  3.58, 5.19 r 2.32(4)  3.58 r 2.32(5)  3.58, 5.19

Page 9 of 135 Table of Statutes r 3.01  25.51 r 3.11  25.51 r 5.02  5.46, 6.4 r 5.03  6.5, 28.8 r 5.04  11.23, 20.26, 22.5, 22.9, 22.23, 22.25, 22.74 r 5.04(1)  20.28 r 5.04(3)  20.26, 21.53 r 5.04(3) item 20  20.26 r 5.04(3) item 21  20.26 r 5.04(3) item 33  9.23 r 5.21  11.44 r 5.22  9.13, 9.59, 11.50 r 5.22(a)  9.22 r 5.22(b)  9.22 r 5.22(c)  9.22 r 5.23  9.13 r 5.23(1)  9.59 r 5.23(2)  15.76 r 5.23(2)(b)(ii)  9.26 r 5.23(2)(c)  9.8 r 5.23(2)(d)  9.8, 11.50 r 6.02  13.7 r 7.22  15.127 r 7.23  15.137 r 7.23(1)  15.137 r 7.23(1)(a)  15.138 r 7.24  15.127 rr 7.31–7.38  10.107 r 7.38  28.220 r 7.42  15.232 r 7.43  15.239 r 7.44  15.233 r 7.45  15.234 r 7.45(1)(d)  15.263 r 7.47  28.220 r 8.01(1)  4.59 r 8.01(2)  4.61 r 8.01(2)(b)  5.46 r 8.02  4.9, 28.8 r 8.03(1)  4.60 r 8.03(2)  4.60 r 8.03(3)  4.60 r 8.04  4.13 r 8.05  4.62, 4.63, 6.6 r 8.05(1)  7.39 r 8.05(2)  7.40 r 8.06  2.28, 4.63, 5.32, 7.39 r 8.21(2)  7.73 r 8.22  13.27 r 9.01  13.8 r 9.02  13.4 r 9.03  13.5 r 9.05  13.7, 13.10 r 9.06  4.123, 13.6, 13.9 r 9.08  13.10 r 9.12  13.21, 13.22 r 9.21  13.36 r 9.61  3.124 r 9.66(1)  3.124 r 9.66(3)  3.124

Page 10 of 135 Table of Statutes r 9.70  3.126 r 10.01  2.28, 5.34 r 10.05(1)(a)  5.68 r 10.05(2)  5.68, 5.69 r 10.05(3)  5.68 r 10.06  5.73 r 10.09  5.75 r 10.10  5.75 r 10.11  5.85 r 10.12(1)  5.34 r 10.21  5.88 r 10.22  5.80 r 10.23  5.56 r 10.24  5.52 r 10.25  5.57 r 10.28  5.83 r 10.31(a)  5.7, 5.33, 5.38 r 10.31(b)  5.40, 5.41 r 10.31(c)  5.42 r 10.31(d)  5.43 r 10.31(e)  5.43 r 10.32  5.31 r 10.41  5.126 r 10.42  5.137 r 10.42 item 4  2.30 r 10.42 item 5  2.30 r 10.42 item 19  2.30 r 10.43(1)(c)  5.139 r 10.43(2)–(4)  5.141 r 10.43(6)  5.139 r 10.43(7)  5.139 r 10.44(1)  5.140 r 10.44(3)  5.139 r 10.45  5.144 r 10.46  5.144 r 10.49  5.116 r 10.51  5.146 r 10.52  5.146 r 10.63  5.148 r 10.64(1)  5.149 r 10.64(2)  5.149 r 10.64(3)  5.149 r 10.64(4)  5.149 r 10.64(5)  5.149 r 10.65  5.150 r 10.66  5.151 r 10.67  5.149 r 10.68  5.151 r 10.70  5.152 r 10.71  5.153 r 10.72  5.154 r 11.01(1)  5.49 r 11.01(2)  5.47 r 11.06  6.1 r 11.07  6.4 r 11.08  6.4 r 12.01(1)  6.32, 6.33 r 12.01(2)  6.33 r 12.02(2)(b)  6.32 r 13.01  6.40, 6.59

Page 11 of 135 Table of Statutes r 14.01  15.225 r 15.01  4.132, 7.39 r 15.02  7.39 r 15.02(1)  4.133 r 15.02(2)  4.133 r 15.04  4.133, 7.39 r 15.05  4.133 r 15.06  4.133, 7.39 r 15.06(2)  7.40 r 15.07  4.133 r 15.10  7.39 r 15.16  13.27 r 16.01  7.29, 7.80, 7.83 r 16.02(1)(e)  7.16, 26.7 r 16.02(2)  7.14 r 16.02(3)  7.13 r 16.03(1)(b)  7.15 r 16.03(2)  7.13 r 16.05  7.13 r 16.06  7.14 r 16.08(b)  7.15 r 16.08(c)  7.13, 26.7 r 16.10  4.128 r 16.11(1)  7.37 r 16.12  7.37 r 16.21  7.77 r 16.21(1)(f)  11.77, 11.81 r 16.31  6.6 r 16.32  6.6, 7.26, 7.39 r 16.33  7.35, 7.39 r 16.41  7.5, 7.15, 7.19, 7.21 r 16.42  7.15, 7.22, 7.40 r 16.43  7.40 r 16.44  7.40 r 16.45  7.25 r 16.51  7.66 r 16.53  7.66 r 16.55  7.66 r 16.56  7.66 r 16.57  7.66 r 17.01(1)  8.11 r 17.01(1)(b)  8.14 r 17.01(2)  8.7, 8.10 r 17.01(3)  8.12 r 17.04(c)  8.21 r 19.01  10.141, 10.143 r 20.03  15.184 r 20.11  15.14 r 20.12(1)  15.14 r 20.12(2)  15.14 r 20.13(3)  15.13 r 20.14(1)  15.16 r 20.14(1)(b)  15.52 r 20.14(1)(c)  15.41 r 20.14(2)  15.16 r 20.14(3)  15.52 r 20.15  15.16 r 20.17  15.57, 15.59, 15.61 r 20.17(2)  15.58 r 20.17(3)  15.67

Page 12 of 135 Table of Statutes r 20.20  15.73 r 20.21  15.69 r 20.22  15.59 r 20.23  15.173 r 20.23(2)  15.173 r 20.25  15.173, 28.220 r 20.31  15.178 r 20.31(2)  15.179 r 20.32  15.62 r 21.01  15.96 r 21.01(2)  15.96 r 21.03  15.112 r 21.03(4)(a)  15.107 r 21.03(4)(b)  15.108 r 21.03(4)(c)  15.105 r 21.05  15.115, 15.116 r 21.06  15.117 r 22.01  7.29, 15.221 r 22.02  15.222 r 22.03  15.223 r 22.05  15.222 r 22.06  7.76, 15.224 r 22.07  15.222 r 23.01(1)  21.75 r 23.01(2)  21.75 r 23.02(1)  21.76 r 23.03(1)  21.76 r 23.13  21.38 r 23.13(1)(b)  21.4 r 23.15  21.80 r 23.15(a)  21.53, 21.57 r 24.01(1)  15.151 r 24.12  22.89 r 24.12(1)(b)  15.150 r 24.13(8)  15.157 r 24.15  15.161 r 24.16  5.32 r 24.16(1)  15.156 r 24.17(1)  15.158 r 24.17(4)(b)  15.150, 15.160 r 24.18  15.150, 15.160 r 24.22  15.158, 15.159, 28.220 r 24.23  15.172, 24.82 r 24.23(2)  15.156 r 24.24  15.155 r 25.01(1)  27.50, 27.54 r 25.02  27.50 r 25.03(1)  27.62 r 25.05(1)  27.50 r 25.05(3)  27.52 r 25.05(4)  27.119 r 25.06(1)  27.120 r 25.06(2)  27.120, 27.121 r 25.07(a)  27.69 r 25.07(b)  27.69 r 25.08(1)  27.71 r 25.08(2)  27.71 r 25.08(3)  27.71 r 25.09(1)  27.74 r 25.09(2)  27.74

Page 13 of 135 Table of Statutes r 25.10(a)  27.75 r 25.10(b)  27.75 r 25.10(c)  27.75 r 25.10(d)  27.75 r 25.11  27.53, 27.75 r 25.12  27.82 r 25.13  27.53 r 25.14(1)  27.110 r 25.14(2)  27.111 r 25.14(3)  27.95 r 26.01  9.91, 14.25, 24.7 r 26.01(1)(a)  9.78 r 26.01(1)(d)  11.77, 11.81 r 26.01(2)  8.13 r 26.01(2)(a)  14.6 r 26.11(1)  14.17 r 26.11(2)  14.19 r 26.12(1)  14.1 r 26.12(7)  14.12 r 26.15  14.13 r 26.16  14.14 r 29.08  20.28 r 29.09  20.28 r 29.11  15.119 r 29.22  28.208 r 30.21  3.74, 22.105 r 30.21(1)(a)(i)  22.113 r 30.21(1)(a)(ii)  22.108 r 30.21(1)(b)(i)  22.111 r 30.21(1)(b)(ii)  22.108 r 30.21(2)  22.108 r 30.22  3.74, 22.109 r 30.22(a)  22.110 r 30.23  22.9, 22.23, 22.74 r 30.28  15.178 r 33.27(1)(c)  22.21 r 34.62  5.126 r 34.128  21.113 r 36.01  25.54 r 36.03  25.56 r 36.05  25.57 r 36.08  24.7, 25.77 r 36.09  10.173 r 36.10  25.55 r 36.21  25.71 r 36.22  25.71 r 36.24  25.72 r 36.31  25.5 r 36.55(1)(c)  22.21 r 36.73  25.73 r 39.01  23.21 r 39.02  23.23, 23.29 r 39.04  11.51, 23.33 r 39.05  9.43, 11.51, 23.33, 23.40 r 39.05(a)  6.40, 22.108 r 39.05(b)  23.41 r 39.05(c)  8.32 r 39.05(e)  23.31 r 39.05(g)  23.31 r 39.05(h)  23.31

Page 14 of 135 Table of Statutes r 39.06  23.61 r 39.11  23.47, 25.74 r 39.31  23.24 r 39.31(1)  23.24 r 39.33  23.27 r 39.35(1)  23.25 r 40.08  4.40 r 40.01  28.96, 28.101, 28.119 rr 40.01–40.02  28.95 r 40.02  28.95 r 40.02(b)  28.57, 28.177 r 40.03  28.26 r 40.04  28.27 r 40.06  28.263, 28.289 r 40.07  28.208, 28.263, 28.289 r 40.07(1)(a)  28.289 r 40.07(2)(a)  28.276 r 40.07(2)(b)  28.276 r 40.13  28.30 r 40.15  28.161 r 40.16  28.161 r 40.17  28.154 r 40.20  28.152, 28.156 r 40.21  28.156, 28.157 r 40.23  28.157 r 40.25  28.155 r 40.26  28.159 r 40.27  28.159 r 40.28  28.152 r 40.28(c)  28.163 r 40.32(2)  28.153 r 40.33  28.167, 28.169 r 40.33(1)(a)  28.168 r 40.33(1)(b)  28.168 r 40.34(1)  28.175 r 40.34(3)  28.175 r 40.34(6)  28.175 r 40.51  28.234 r 40.51(2)  28.238 r 41.05  22.89 r 41.06  23.23, 24.84 r 41.07  23.29 r 41.07(1)  24.84 r 41.07(2)  24.84 r 41.09  24.72 r 41.10  24.12 Sch 1  15.40, 15.41, 28.112, 28.114 Sch 1, Dictionary  4.132 Sch 3  28.243 Dictionary  3.124, 5.41, 28.18 Federal Magistrates (Consequential Amendments) Act 1999  2.14 Foreign Evidence Act 1994  15.119 Foreign Judgments Act 1991  10.133, 10.147, 24.99, 26.141 s 5(1)  24.99

Page 15 of 135 Table of Statutes s 5(4)(a)  24.100 s 6  24.100 s 6(7)  24.100 s 7  24.101 s 8  24.100 s 10(1)  24.99 Foreign Judgments Regulations 1992  24.99 Sch 2  10.147 Freedom of Information Act 1982  15.43 s 11  15.229 s 47  15.229 s 47C  15.229 s 47F  15.229 s 47G  15.229 High Court of Australia Act 1979 s 5  2.6 High Court Rules 2004  2.7, 25.2 Pt 27  7.13, 7.38 Pt 41  25.95, 25.103, 25.108 Pt 44  25.108 r 4.01  11.5 r 4.07.5  15.155 r 4.07.6  15.155 r 8.07  10.1 r 8.07.1  24.7 r 8.07.2  14.25 r 8.07.2(b)  24.7 r 10.01  24.14 r 10.02.2  24.72, 24.83 r 10.02.5  24.83 r 20.01  7.38 r 23.01.3  9.12 r 24.02  15.150 r 24.02.1  15.151 r 24.02.4  15.156 r 27.06.3  1.41 r 27.09.1  9.12, 9.23 r 27.09.2  9.12 r 27.09.4  9.81 r 27.09.4(a)  9.78 r 27.09.5  9.81 r 27.09.6  9.78, 9.81 r 27.09.7  9.59, 11.50 r 27.10.2  14.1, 14.17, 14.19 r 27.10.2(a)  14.6 r 27.10.6  14.12 r 32.01.3  1.41 r 41.02  25.104 r 41.04  9.12, 11.37 r 41.05.1  25.104 r 41.05.2  25.104 r 41.08  25.103

Page 16 of 135 Table of Statutes r 41.08.1  25.105 r 41.08.3  25.105 r 42.01  25.108 r 42.03  25.108 r 42.05.1  25.108 r 42.06.1  9.12 r 42.08.1  25.110 r 42.08.4  25.110 r 42.09  25.80 r 42.13.1  25.109 r 42.13.10  25.109 r 43.02  25.96 r 43.03  25.96 r 59.01  10.143, 10.173 Income Tax Assessment Act 1997  28.285 Insurance Contracts 1984 s 43  29.28 International Arbitration Act 1974  29.35, 29.39 Pt II  29.35 Pt III  29.35 Pt IV  29.35 s 7(4)  29.39 Sch 2  29.35 Judiciary Act 1903  1.14, 2.7, 25.97, 25.106 Pt IX  24.17 Pt XAA  15.204 s 24  24.83 s 30  2.35 s 30(a)  2.7 s 34  25.95 s 35  2.8 s 35(2)  2.8, 25.99 s 35A  25.97, 25.98, 28.101, 25.106 s 35A(b)  25.94 s 35AA  2.8 s 35AA(2)  2.8 s 37  25.93 s 39  2.15, 2.33 s 39(2)  2.35 s 39AB  4.42 s 39B(1)  2.10 s 39B(1A)  2.39 s 39B(1A)(a)  2.10 s 39B(1A)(b)  2.10, 2.35 s 39B(1A)(c)  2.10, 2.35 s 40  7.38 s 44  2.7 s 63  5.81 s 65  24.17 s 66  24.17 s 67  24.17, 24.36 s 77M(1)  24.12

Page 17 of 135 Table of Statutes Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Jurisdiction of Courts (Miscellaneous Amendments) Act 2000  2.14 Migration Act 1958  4.13 s 474  2.36 s 476  3.41 s 476A  2.10, 2.34 s 476B  2.10 s 486H  28.294 National Credit Code (National Consumer Credit Protection Act 2009 Sch 1  28.198 National Security Information (Criminal and Civil Proceedings) Act 2004  19.53, 19.54, 19.55 Pt IIIA  19.52 s 19(3)–(5)  19.54 s 38F  19.53 s 38H  19.53 s 38J  19.55, 19.56 s 38L  19.53 s 38PB  19.56 National Security Information Legislation Amendment Act 2005  19.52 Native Title Act 1993  2.10, 2.58, 21.113 Pt 5  25.30 s 37A  21.113 s 83  21.113 Nauru (High Court Appeals) Act 1976  2.8, 25.96 s 5  25.96 Navigation Act 1912 s 258  21.113 s 319  21.113 Norfolk Island Act 1913  2.2 Norfolk Island Act 1957  2.2 Norfolk Island Act 1979  2.2 s 16  2.2, 2.3 s 16A  2.2, 2.3 Norfolk Island Legislation Amendment Act 2015  2.2 Northern Territory (Self-Government) Act 1978  2.2, 2.3

Page 18 of 135 Table of Statutes

Patents Act 1900 s 122  10.9 s 128  10.9 Privacy Act 1988  15.209, 15.212 s 6C  15.209 Sch 1  15.209 Privy Council (Appeals from the High Court) Act 1975  2.9 s 3  2.55 Privy Council (Limitation of Appeals) Act 1968  2.9 s 3  2.55 Public Service Regulations 1999 Pt 8A  24.55 Royal Style and Titles Act 1973 s 2(1)  2.56 Service and Execution of Process Act 1992  2.29, 2.31, 5.116, 5.118, 5.119, 5.121, 5.123 , 6.21, 6.37, 7.51, 15.151 Pt 3  15.156 Pt 6  24.94 s 7  5.119 s 9  2.31, 5.120 s 9(9)  2.31 s 10 … 2.31, 5.121 s 12  5.119 s 15  5.119 s 15(1)  2.29 s 15(2)  2.29 s 15(3)  2.31 s 15(4)  2.31 s 15(5)  5.122 s 16  2.29, 2.31 s 17  5.123 s 20  2.49 s 20(4)  2.49 s 27  5.119 s 29  5.123, 15.151 s 30  5.123 s 35  15.159 s 104  24.94 s 105(1)  24.94 s 105(2)  24.94 s 106  24.94 s 107(1)  24.94 s 108  24.94 Statute of Westminster Adoption Act 1942  2.55 Taxation Administration Act 1953  22.41

Page 19 of 135 Table of Statutes s 8K  22.41 s 8L  22.41 Telecommunications Act 1997  15.212 s 276(1)(a)(iv)  15.212 s 280  15.212 Trade Practices Act 1974  2.10 Pt IV  18.20 s 35(6)  13.31 s 45  13.11 s 46  13.11 s 52  2.39, 5.161, 17.55, 26.90 s 65J  13.15 s 76(1)  18.20 s 86  2.34 Trans-Tasman Proceedings Act 2010  5.126, 5.156, 6.21, 15.151, 26.141 Pt 2  5.126 Pt 3  5.156 Pt 5 Div 2  15.156 Pt 7  24.103 s 3(a)  5.126 s 4  24.103 s 31  15.151 s 65  24.104 s 67(1)  24.104 s 68  24.105 s 72(1)  24.106 s 72(2)  24.106 s 75  24.105 s 76(2)  24.107 s 76(2)(a)(i)  24.107 s 76(3)  24.107 s 77  24.105 s 78  24.105 Waterside Employment Regulations 1931  25.17

Australian Capital Territory ACT Civil and Administrative Tribunal Act 2008 s 7  4.41 s 8  4.41 ss 16–18  4.41 Acts Interpretation Act 1954 s 36  15.40 Building and Construction Industry (Security of Payment) Act 2009 Pt 4 Div 4.2  29.4 Civil Law (Property) Act 2006

Page 20 of 135 Table of Statutes s 204  11.14 Civil Law (Wrongs) Act 2002  3.106 Pt 14.2  4.15 s 21  4.138 s 134  3.106 s 137(2)  3.106 s 188(2)  4.15 s 188(3)  4.15 s 189  4.15 Commercial Arbitration Act 1986  29.33, 29.39 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i)  29.50 s 34A(6)  29.50 s 35  29.49 Commercial Arbitration Act 2017 s 8  3.115 Court Procedures Act 2004 Pt 4  24.17 s 5A(1)  1.43, 1.69, 1.102 s 5A(3)  1.43, 1.44 s 5A(4)  1.43, 1.102 s 29  24.17 s 31  24.17 s 41  3.66 s 62  10.9 s 63  24.61 s 74E  3.124 Court Procedures Act 2006 s 1200(b)  21.48 s 1200(e)  21.65 s 1205  21.50 s 1211  21.53, 21.57

Page 21 of 135 Table of Statutes Sch 1  21.38 Court Procedures Rules 2006  1.44, 15.75, 28.106 Pt 2.1, Sch 2  23.59, 23.61 Pt 2.5  4.135, 7.34, 7.43 Pt 2.6  15.71 Pt 2.11 Div 2.11.7  29.51 Pt 2.18 Div 2.18.3  24.20 Pt 2.18 Div 2.18.8  24.55 Pt 2.18 Div 2.18.16  24.83 Pt 2.19  24.29 Pt 6.2  8.2 Pt 6.3  4.58, 4.69 Div 2.6.2  7.13 Div 2.6.4  7.5, 7.19 Div 2.6.5  7.26 Div 2.6.7  7.32 Div 2.11.6  7.76 Div 3.3.2  27.16 Div 6.8.9  5.126 Div 6.8.12  5.148 Div 6.10.2  20.11 Div 6.10A.1  5.126 r 6  8.21 r 21  1.57, 7.69 r 21(2)  11.3 r 31  4.64 r 32  4.67 r 33  4.66, 5.81 r 34(1)  4.65 r 34(2)  4.65 r 35  4.65 r 37  4.75 r 38  4.66 r 39  4.66 r 40  6.40 r 50(1)  4.70 r 50(2)  4.70, 7.43 r 50(3)  4.72 r 50(4)  4.71 r 50(4)(c)  5.46 r 50(5)  4.70 r 50(6)  4.72 r 50(7)  4.70 r 51  4.72, 7.44 r 52  4.72, 7.44 r 53  4.72, 7.44 r 54(1)  5.16, 5.35 r 54(2)  5.32 r 55  4.72 r 60(3)  4.73 r 60(4)  4.73 r 60(6)  4.74 r 60(7)  4.74 r 60(7)(c)  5.46 r 60(8)  4.73 r 60(9)  4.73, 6.9 r 61(1)  5.16, 5.35 r 61(3)  5.32

Page 22 of 135 Table of Statutes r 70  5.16 r 73  5.85 r 73(2)  5.85 r 74  4.68, 5.91 r 74(3)  5.95 r 75  4.68 r 76  4.68 r 100(1)  6.1, 6.8 r 100(2)  6.8, 7.43 r 100(3)  6.1, 6.9 r 101(1)(a)  6.10 r 101(1)(b)  6.10 r 101(1)(c)  5.46, 6.10 r 101(1)(d)  6.10 r 101(2)(a)  6.10 r 101(2)(b)  6.10 r 101(2)(c)  5.46, 6.10 r 101(2)(d)  6.10 r 101(3)  6.10 r 102  5.15 r 102(1)(a)  6.8, 7.43, 9.14 r 102(1)(b)  6.8, 6.56 r 102(3)(a)  6.9 r 102(3)(b)  6.9, 6.56 r 106  6.8 r 106(1)  6.32 r 106(2)  6.33 r 106(3)  6.32 r 106(4)  6.32 r 111(1)  6.54 r 111(2)  6.54 r 111(3)  6.55 r 111(4)  6.55 r 111(5)  6.55 r 117(1)(a)(ii)  9.14 r 200  13.8 r 202  13.9 r 211  13.4, 13.7 r 213  13.5 r 217  13.6 r 220  13.10 r 221  13.10 r 230  13.10 r 242  13.27 r 266  13.36 r 275(1)  3.124 r 275(2)  3.124 r 275(6)  3.124 r 278(1)  3.125 r 282  3.126 r 301  4.135 r 302  4.135 r 303  4.137 r 304  4.137 r 305  4.137 r 306(1)  4.137 r 306(2)  4.137 r 306(3)  4.137 r 307  4.137 r 308  4.137

Page 23 of 135 Table of Statutes r 313  4.134 r 316  4.123 r 319  4.136 r 319(2)–(5)  4.138 r 320(1)  4.138 r 320(2)  4.138 r 320(3)  4.138 r 321  4.138 r 405(5)  7.80 r 406(1)(c)  7.15 r 406(1)(e)  7.16, 26.7 r 406(2)  7.13 r 407  7.44 r 407(1)(h)  7.15, 7.22 r 407(1)(j)  7.15, 7.22 r 407(1)(q)  26.7 r 407A  7.44 r 407B  7.44 r 408  7.44 r 409(1)  7.13 r 409(2)  7.13 r 410  7.8, 7.24 r 412  7.13 r 414(2)  7.14 r 417  7.44 r 425  7.77 r 425(1)  7.14 r 426  7.89 r 430(1)(a)  7.15 r 430(1)(c)  7.15, 7.22, 7.44 r 431  7.15 r 431(3)  7.15 r 432  7.44 r 434  7.25 r 456  4.128 r 456(3)(a)  4.123 r 461  4.134, 7.43 r 462  7.43 r 462(1)(a)  4.134 r 462(1)(b)  4.134 r 462(2)  4.134 r 464  4.134, 7.43 r 471  4.123 r 480  5.15, 7.35, 7.43 r 481  7.43 r 481(1)  7.37 r 482(3)  7.37 r 491  7.29 r 491(1)  15.221 r 491(2)  15.222 r 491(3)  15.223 r 492  7.76, 15.224 r 493  15.222 r 502  1.57, 7.66 r 503(4)(b)  7.73 r 505  7.66 r 507  7.76 r 512  7.66 r 600  15.40 r 605(1)  15.17, 15.41

Page 24 of 135 Table of Statutes r 605(2)  15.17 r 606(1)  15.18 r 606(1)(c)  15.67 r 607  15.17 r 608(1)(a)(ii)  15.61 r 608(1)(b)(ii)  15.61 r 608(3)(a)  15.52 r 611  15.73 r 620  15.178 r 620(4)  15.62 r 620(4)–(5)  15.179 r 621(c)  15.69 r 630(1)  15.96 r 630(4)  15.96 r 631(1)(b)  15.108 r 631(1)(c)  15.109 r 631(1)(d)  15.107 r 631(1)(e)–(f)  15.105 r 632  15.96 r 632(1)(c)  15.115 r 632(1)(d)  15.100 r 633  15.112 r 634  15.112 r 635  15.112 r 636  15.117 r 650  15.127 r 650(1)(c)  15.129 r 650(4)  15.127 r 651  15.137 r 651(1)  15.137 r 660  15.175 r 661  5.32 r 667  28.220 r 671  15.76 r 671(1)(a)  15.116 r 673  15.184 r 700  10.63 r 715  15.225 rr 715–719  10.1 r 727  15.233 r 745  28.220 r 751  15.232 r 752  15.239 r 753  15.234 r 753(1)(d)  15.263 rr 740–745  10.107 r 755  28.220 r 1002(1)  27.50, 27.51, 27.54 r 1002(2)(a)(i)  27.50 r 1002(2)(a)(ii)  27.54 r 1002(2)(b)  27.51 r 1002(2)(c)  27.60 r 1002(2)(d)  27.50 r 1002(2)(e)  27.52 r 1002(3)  27.60 r 1002(5)  27.52 r 1002(7)  27.119 r 1002(9)  27.69 r 1003(1)  27.71 r 1003(2)  27.72

Page 25 of 135 Table of Statutes r 1003(3)  27.73, 27.78 r 1004(1)  27.74 r 1004(2)  27.74 r 1005(1)(a)  27.75 r 1005(1)(b)  27.75 r 1005(2)(a)  27.75 r 1005(2)(b)  27.75 r 1005(3)  27.75 r 1006(1)  27.120 r 1006(2)  27.120 r 1006(3)  27.120 r 1009  27.78 r 1010(2)(a)  27.96 r 1010(2)(b)  27.95 r 1011(2)(a)  27.100 r 1011(2)(b)  27.100 r 1012  27.101 r 1013  27.92 r 1014  27.91 r 1110  9.22 r 1110(1)  9.60, 11.50 r 1110(2)  9.60 r 1117  9.14 r 1117(2)(a)(iii)  9.14 r 1119  9.14 r 1119(1)(a)  5.87 r 1120  9.24 r 1120(2)(a)  9.27 r 1120(2)(b)  9.27 r 1121  9.27 r 1122  9.8, 11.50 r 1123  9.24, 9.35 r 1124  9.24 r 1126  9.8 r 1128  9.43, 11.51, 11.53 r 1146(1)  9.85 r 1146(2)  9.85 r 1146(2)(a)  9.78 r 1146(3)  9.85 r 1147  9.85 r 1147(2)  9.78 r 1149(1)  8.13 r 1160  14.1 r 1160(1)  14.6 r 1161  14.1 r 1162  14.17, 14.19 r 1163  14.12 r 1164  14.17 r 1166  14.1 r 1167  14.14 r 1169  14.13 r 1183  17.84 r 1200(a)  21.4 r 1200(e)  21.4 r 1201  21.38 r 1203(1)  21.4 r 1306  9.2 r 1311  1.84 r 1312  22.18 r 1325  22.9, 22.23, 22.74

Page 26 of 135 Table of Statutes r 1401  5.15, 11.23, 22.9, 22.23, 22.25, 22.74 r 1401(1)  20.32 r 1401(4)(g)  20.32 r 1401(7)  11.50 r 1450  11.5 rr 1451–1452  11.44 r 1505  3.74, 22.105 r 1505(1)  22.111 r 1505(2)  22.113 r 1505(5)  22.108 r 1506  22.110 r 1508  22.25, 22.26 r 1508(7)  22.30 r 1530  21.113 r 1600  23.14 r 1605  23.21 r 1606  23.25 r 1606(7)  23.24 r 1610  23.23 r 1610(3)  23.23 r 1611(1)  23.47 r 1612(3)  23.47 r 1613  23.33 r 1613(1)  11.51 r 1613(2)  8.32, 23.40 r 1613(2)(a)  6.40 r 1613(2)(b)  23.41 r 1613(d)  23.31 r 1619  23.54 r 1619(6)(a)  23.57, 23.61 r 1620  23.54, 23.55, 23.61 r 1700  28.18 r 1703  28.205 r 1704  28.208 r 1705  28.57 r 1720(3)(a)  28.73 r 1721  28.13 r 1722(1)  28.127 r 1725  4.40, 4.43 r 1725(1)(c)  4.43 r 1728  28.26 r 1751(2)  28.96, 28.99, 28.119 r 1752  28.104 r 1752(3)  28.106 r 1752(4)  28.112 r 1752(4)(a)  28.114 r 1753  28.208 r 1753(1)(b)  28.261, 28.272, 28.287 r 1760  28.152 r 1760(g)  28.162 r 1800(3)  28.154 r 1802  28.154 r 1803(3)  28.161, 28.162 r 1807  28.155 r 1808  28.155 r 1809  28.155 r 1810  28.155 r 1813(1)–(3)  28.169 r 1832  28.161 r 1835(6)  28.153

Page 27 of 135 Table of Statutes r 1836  28.165 r 1851(2)  28.170 r 1851(4)  28.170 r 1855(1)  28.170 r 1901  10.143 r 2004  24.26 r 2007  24.18 r 2012(1)(a)  24.14 r 2013  24.7 r 2015  23.29 r 2052(2)  24.16 r 2059(4)  24.36 r 2103  24.21 r 2104(f)  24.21 r 2106(1)  24.24 r 2106(4)  24.24 rr 2150–2153  24.39 r 2151  24.39 r 2152(1)  24.39 r 2152(3)(e)  1.44 r 2153  24.39 r 2154(1)(f)  1.44 r 2155  24.39 r 2157  24.39 r 2159  24.39 r 2160  24.39 r 2162  24.39 r 2200  24.25, 24.29 r 2203  24.28 r 2212(b)  22.34 r 2216  24.33 r 2301  24.47 r 2302(5)  24.52 r 2303(1)(g)  1.44 r 2306  24.50 r 2311  24.52 r 2352(1)(g)  1.44 r 2401(2)  24.56 r 2402  24.56 r 2421  24.60 r 2442  24.85 r 2442(1)(a)  24.93 r 2442(4)  24.72 r 2446(1)(a)  24.84 r 2446(2)  24.84 r 2451  24.71 r 2460  24.69 r 2506(4)  24.87 r 2900  23.19 r 2903  3.58, 5.19 r 2903(1)  5.19 r 2903(2)  3.58, 5.19 r 2903(3)–(6)  3.58 r 5082  25.57 r 5137(1)  22.21 r 5139  22.21 r 5301  25.77 r 5302  10.173 r 5310  25.19 r 5402  25.54

Page 28 of 135 Table of Statutes r 5403  25.54 r 5404  25.5 r 5405  25.56 r 5410  25.70 r 5412  25.55 r 5413  25.71 r 5416  25.72 r 5470  25.73 r 5471  25.73 r 5474  25.74 r 6007  8.11 r 6007(5)(a)  8.14 r 6007(7)  8.7, 8.10 r 6008  8.7 r 6009  8.7 r 6010(a)  8.21 r 6016  8.12 r 6101  4.69 r 6102  4.69 r 6120  5.16 r 6121(a)  5.13 r 6121(b)  5.13 r 6121(c)  5.13 r 6121(d)  5.13 r 6121(e)  5.13 r 6122(3)(a)  5.16 r 6123  5.13 r 6123(4)(a)  5.16 r 6126  4.67, 5.17 r 6126(6)  5.16 r 6140  5.18 r 6141  5.18 r 6142  5.18, 11.81 r 6142(2)(b)  5.18 r 6142(3)  5.18 r 6145  4.67 r 6200  25.32 r 6250  25.31 r 6256  25.31 r 6256(4)–(5)  25.31 r 6304  5.16 r 6351  5.15, 5.91, 11.5, 11.36 r 6352  5.15 r 6405(1)  5.34, 5.35 r 6405(2)  5.34 r 6405(3)  5.34 r 6420(a)  5.7, 5.33, 5.38 r 6420(b)  5.39 r 6420(c)  5.40 r 6420(d)  5.40 r 6420(e)  5.40 r 6420(f)  5.42 r 6420(g)  5.43 r 6420(h)  5.40 r 6421  5.41, 5.57 r 6421(2)(b)  5.57 r 6433(1)(a)  5.68 r 6433(1)(b)  5.69 r 6433(1)(c)  5.70 r 6433(2)  5.68

Page 29 of 135 Table of Statutes r 6433(4)  5.68 r 6433(5)  5.68 r 6434  5.73 r 6435  5.75 r 6436  5.75 r 6438  5.39 r 6450  5.31 r 6460  5.52 r 6461  5.56 r 6462  5.77 r 6463  5.83 r 6464  5.80 r 6465  5.42 r 6466  5.43 r 6467  5.88 r 6468  5.88 r 6502  5.134 r 6503  5.134, 5.138 r 6503(4)  5.141 r 6504  6.40 r 6507  5.136 r 6508  5.140 r 6509  5.144 r 6552  5.148 r 6553(1)  5.149 r 6553(2)  5.149 r 6553(3)  5.149 r 6553(4)  5.149 r 6553(5)  5.149 r 6554  5.150 r 6555  5.151 r 6556  5.149 r 6557  5.151 r 6559  5.152 r 6560  5.153 r 6561  5.154 r 6600(3)  15.150 r 6601  22.89 r 6601(1)(b)  15.150 r 6601(2)(c)  15.155 r 6602(8)  15.157 r 6604  15.161 r 6605  15.156 r 6606(1)  15.158 r 6606(4)(b)  15.150, 15.160 r 6607  15.150, 15.160 r 6611  15.158, 15.159, 28.220 r 6612  15.172, 22.89, 24.82 r 6613(1)  15.155 r 6700  20.30 r 6700(1)  20.26, 22.5 r 6700(2)  20.26 r 6700(3)(a)  20.25 r 6701  20.31 r 6701(1)  20.25 r 6711(1)  8.14, 20.11 r 6711(2)  8.14 r 6748  15.178 Sch 1  21.4

Page 30 of 135 Table of Statutes Sch 4 Pt 4.2  28.243 Dictionary  3.124, 4.73, 5.47, 5.49, 6.9 Courts (Cross-vesting) Act 1993  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Criminal Code 2002 Div 7.2.2  3.100 Div 7.2.3  3.100 s 702  3.100 s 703  3.100 s 704  3.100 Evidence Act 2011  15.220, 16.4, 17.5, 17.7, 17.10, 17.23, 17.79 , 21.6, 21.12, 21.14, 21.21 Pt 3.2  16.77 Pt 3.10 Div 3  17.10 Pt 3.10 Div 3.10.1C  15.217 Pt 4.6 Div 1  19.19 Div 3.10.1A  15.207 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10 s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 117  16.6 s 118  16.3, 16.26, 17.7

Page 31 of 135 Table of Statutes s 118(c)  16.6, 16.20, 16.41, 16.56 s 119  16.3, 16.42, 16.56, 16.64, 17.7 s 119(b)  16.55, 16.56 s 119(c)  16.6 s 120  16.6, 16.16, 16.64 s 121(2)  16.6, 16.82 s 122  16.6 s 122(2)  16.99, 16.100 s 122(5)  16.106, 16.107 s 122(5)(a)(i)  16.107 s 122(5)(c)  16.6, 16.87 s 124  16.6, 16.84 s 125(1)  16.6, 16.79 s 126  16.109 s 126A(1)  15.207 s 126B(3)  15.208 s 126B(4)  15.208 s 126B(4)(f)  15.208 s 126J  15.218 s 126K 3.109 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 128(1)  18.6 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33, 27.24 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85, 27.24 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 131A  16.4, 19.19 s 131A(1)  17.8 s 135  20.73, 21.36, 21.41, 22.66 ss 135–136  20.73 s 136  20.73 s 137  21.36, 21.41 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 s 169  15.225 s 187  18.8

Page 32 of 135 Table of Statutes s 191  22.14 Evidence (Miscellaneous Provisions) Act 1991 Ch 8  15.204 s 58  15.207 Freedom of Information Act 2016 s 10  15.229 s 36  15.229 s 41  15.229 s 43  15.229 Land Titles Act 1925 s 170  24.35 Legal Profession Act 2006  28.299 s 261  28.189, 28.191, 28.192 s 269  28.300, 28.301 s 270  28.300 s 271  28.300 s 272  28.300 s 272(1)(c)  28.191 s 272(1)(d)  28.191 s 276  28.300, 28.302 s 277(1)–(2)  28.303 s 277(3)  28.303 s 277(3)–(4)  28.303 s 279  28.310 s 279(b)  28.38, 28.195 s 279(c)  28.38, 28.195 s 282  28.35 s 282(2)  28.35 s 283(1)  28.189 s 283(2)  28.190 s 283(3)  28.190 s 283(5)  28.191 s 284(1)  28.192 s 284(2)  28.192 s 284(3)  28.192 s 284(4)  28.193 s 284(4)(a)  28.193 s 285  28.194 s 285(1)  28.194 s 286  28.34 s 287(1)  28.35, 28.195 s 287(2)  28.38, 28.195 s 288  28.36 s 293  28.312 s 294A  28.304 s 296  28.306 s 297  28.307 s 298(b)  28.306 s 300  28.310 s 300(1)(c)  28.310 s 302  28.308 s 302(1)  28.313

Page 33 of 135 Table of Statutes Limitation Act 1985  26.7, 26.13, 26.35, 26.38, 26.39 Pt 2  26.13 Pt 4 Div 4.1  26.7 s 4  26.11 s 5(a)  26.16 s 6  26.12 s 10  26.14 s 11  26.12, 26.13 s 14(1)  24.15 s 16B  26.13 s 16B(2)  26.34 s 21B(1)  26.13 s 21B(2)  26.58 s 21C  26.13 s 23  26.13 s 24  26.13 s 30  26.38 s 32  26.46 s 32(2)(a)(i)  26.46 s 32(2)(a)(ii)  26.46 s 32(3)  26.46 s 32(4)  26.46 s 33(1)(a)  26.42 s 33(1)(b)  26.42 s 34  26.42 s 36  26.34 s 40  26.50 s 45(1)  26.7 s 92  26.82 Dictionary  26.12, 26.13, 26.36 Magistrates Court Act 1930 Pt 4.2  4.43 s 4  4.43 s 257  4.43 Sale of Goods Act 1954 s 30(1)  24.30 s 30(2)  24.30 Supreme Court Act 1933  2.3 s 3  4.43 s 9  25.32 s 9(2)  25.32 s 20  4.43 s 22  11.20, 22.1 s 30(4)  14.25 s 37E(2)  25.5, 25.33 s 37E(4)  25.32, 25.33 s 37J  25.32 s 37O  25.76 s 39  25.30 s 45  25.30 s 47  25.31 s 50(b)  24.26 s 67A  3.119

Page 34 of 135 Table of Statutes s 67A(2)  3.120 s 67A(5)  3.120 Supreme Court Rules 1937 O 39 Div 39.9  21.53 O 39 Div 39.9 r 49G  21.80

Norfolk Island Court of Petty Sessions Act 1960  2.2 Evidence Act 2004  15.220, 16.3, 17.5, 17.7, 17.10, 17.23, 17.79 Pt 3.10 Div 3  17.10 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  22.95 s 76  22.91 ss 77–79  22.91 s 78  22.91 s 118  17.7 s 119  17.7 s 126J  15.218 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85 s 131(2)(i)  17.69

Page 35 of 135 Table of Statutes s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 135  20.73, 22.66 ss 135–136  20.73 s 136  20.73 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 s 169  15.225 s 191  22.14 Supreme Court Act 1960  2.3

New South Wales Building and Construction Industry Security of Payment Act 1999 Pt 3 Div 2  29.4 Civil Procedure Act 2005  1.58, 28.18 Pt 4  29.51 Pt 5  29.51 Pt 8 Div 2  24.25 Pt 8 Div 3 Subdiv 2  24.55 Pt 10  13.39 s 3  4.139, 15.41 s 3(1)  28.18, 28.101 s 13  25.30 s 22(1)  4.139 s 22(2)  4.139 s 30(4)  17.84 s 30(5)  17.86 s 31(c)  17.86 s 56  1.46, 1.47, 14.49, 28.64, 28.197 ss 56–60  28.268 s 56(1)  1.45, 1.98 s 56(2)  1.45, 11.3 s 56(3)  1.46, 1.98, 8.5 s 56(4)  1.98, 28.268 s 57  1.46 s 57(1)  1.46, 1.89 s 58  1.46, 11.3 s 58(1) … 1.46, 5.95 s 58(2)  1.89 s 58(2)(b)(ii)  5.95 s 58(2)(b)(iii)  5.95 s 59  1.47 s 60  1.48, 1.69, 14.49, 28.143, 28.144 s 61  9.61, 22.23, 22.25 s 61(1)  1.89 s 62  22.23, 22.25 s 63  11.5

Page 36 of 135 Table of Statutes s 64  7.66 s 65(2)(c)  7.73 s 67  14.25 s 73  3.66 s 75  3.126 s 76  3.126 s 82  10.176, 10.178 s 82(4)  10.181 s 82(5)  10.182 s 86  11.44 s 90(1)  23.14 s 94  24.72 s 97  24.23 s 98  28.13 s 98(1)(c)  28.95 s 98(2)  28.205 s 98(4)(b)  28.57, 28.73 s 98(4)(c)  28.57, 28.177 s 98(4)(d)  28.57, 28.73 s 99  28.208, 28.268, 28.287 s 99(1)  28.260, 28.263 s 99(2)  28.288 s 99(2)(a)  28.289 s 99(2)(b)  28.289 s 99(2)(c)  28.289 s 99(3)  28.290 s 99(4)(b)  28.290 s 100  9.28, 23.54 s 100(1)  9.28 s 100(3)(a)  23.57, 23.61 s 101  23.54, 23.55, 23.61 s 104  24.69, 24.70 s 106(1)(c)  24.56 s 106(2)(d)  24.29 s 106(3)  24.31 s 106(6)  24.47 s 107(1)  24.40 s 108  24.22 s 108(5)  24.22 s 109(1)  24.27, 24.30 s 109(2)  24.30 s 112(1)  24.27 s 112(2)  24.30 s 117  24.47 s 117(2)  24.50 s 122  24.55 s 123(1)  24.52 s 124(1)  24.52 s 124(1)(b)  24.52 s 124(3)  24.52 s 126(1)  24.58 s 126(2)  24.56 s 126(4)  24.59 s 132(1)  24.29 s 132(2)  24.29 s 134  24.14 s 135(2)  24.71 s 135(2)(a)  24.28, 24.71 s 166(2)  13.39

Page 37 of 135 Table of Statutes Sch 3  21.4 Commercial Arbitration Act 2010  29.33, 29.39, 29.29.49 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115, 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Conveyancing Act 1919 s 37A  10.129 s 54A  11.14 Court Suppression and Non-Publication Orders Act 2010  3.66, 15.204 s 6  3.48 Credit Act 1984  13.37 Crimes Act 1900 Pt 7  3.100 s 317  15.77, 15.235 s 327  3.100 s 330  3.100 s 331  3.100 Crimes (Criminal Oganisations Control) Act 2009  19.47 Crown Proceedings Act 1988  24.17 s 6  5.81 s 7  24.17 Defamation Act 2005  3.106 s 23  14.14 s 24  3.106 s 27(2)  3.106

Page 38 of 135 Table of Statutes District Court Act 1973 Pt 3  4.38 s 4  4.40 s 8  4.38 s 44  4.40 ss 44–51  4.38 s 51  4.40 s 199(7)  24.92 Dust Diseases Tribunal Act 1989 s 11(1)  2.17 Electronic Transactions Act 2000 Sch 1 cl 13  5.31 Evidence Act 1995  15.220, 16.4, 16.74, 17.5, 17.7, 17.10, 17.23 , 17.79, 21.6, 21.12, 21.14, 21.21, 21.36 Pt 3.2  16.77 Pt 3.10 Div 1A  15.207 Pt 3.10 Div 1C  15.217 Pt 3.10 Div 3  17.10 Pt 4.6 Div 1  19.19 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55  15.19 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  8.14, 22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10

Page 39 of 135 Table of Statutes s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 117  16.6 s 118  16.3, 16.26, 16.47, 17.7 s 118(c)  16.6, 16.20, 16.41, 16.56 s 119  16.3, 16.42, 16.47, 16.56, 16.64, 17.7 s 119(b)  16.55, 16.56 s 119(c)  16.6 s 120  16.6, 16.16, 16.64 s 121(2)  16.6, 16.82 s 122  16.6 s 122(1)  16.98 s 122(2)  16.99, 16.100 s 122(5)  16.106, 16.107 s 122(5)(a)(i)  16.107 s 122(5)(c)  16.6, 16.87 s 124  16.6, 16.84 s 125  16.77 s 125(1)  16.6, 16.79 s 126  16.109 s 126A(1)  15.207 s 126B(3)  15.208 s 126B(4)  15.208 s 126B(4)(f)  15.208 s 126J  15.218 s 126K  3.109 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 128(1)  18.6 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.8, 17.10, 27.24 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 131A  16.4, 19.19 s 131A(1)  17.8 s 135  20.73, 21.36, 21.41, 21.44, 22.66 ss 135–136  20.73

Page 40 of 135 Table of Statutes s 136  20.73 s 137  21.36, 21.41, 21.44 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 ss 166–169  15.225 s 169  15.225 s 187  18.8 s 191  22.14 Evidence Amendment Act 2007 s 131A  16.4 Government Information (Public Access) Act 2009 Pt 2 Div 2  15.229 s 9  15.229 s 14  15.229 Health Records and Information Privacy Act 2002  15.209 Home Building Act 1989 s 7C  29.28 Interpretation Act 1987 (No 15) s 21(1)  15.40 s 76  5.23, 5.31 s 77  5.31 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50, 2.51 s 5(7)  2.49 s 8  2.49 s 8(1)  2.51 Jury Act 1977 s 72A  11.20 Law Enforcement (Powers and Responsibilities) Act 2002 s 70(1)  15.237 Legal Profession Act 2004 s 364  28.130, 28.137, 28.144 s 364(2)  28.137 s 364(2)(f)  28.137 Legal Profession Uniform Law  28.299 s 6(1)  28.192 s 170  28.35, 28.191 s 170(1)  28.191 s 170(2)  28.191 s 172  28.6, 28.37

Page 41 of 135 Table of Statutes s 172(1)  28.130, 28.137, 28.311 s 172(2)  28.130, 28.137 s 172(4)  28.311 s 174  28.300 s 174(1)  28.300 s 174(1)(b)  28.300, 28.302 s 174(2)  28.301 s 178  28.303 s 178(1)  28.35, 28.38, 28.195 s 178(1)(a)  28.39 s 178(1)(b)–(c)  28.303 s 180  28.35 s 180(2)  28.35 s 181(1)  28.189 s 181(2)–(4)  28.190 s 181(6)  28.192 s 181(7)  28.190 s 182(1)  28.192 s 182(2)  28.193 s 182(2)(a)  28.193 s 182(3)  28.192 s 183  28.194 s 183(1)  28.194 s 184  28.34 s 185  28.38 s 185(1)  28.35, 28.195 s 185(2)  28.303 s 185(2)–(4)  28.195 s 194  26.17 s 194(1)  28.306 s 198  28.304 s 198(1)  28.304 s 198(3)  28.305 s 198(7)(b)  28.306 s 198(8)  28.308 s 199  28.311 s 199(2)  28.6 s 200  28.6, 28.311 s 204(1)  28.313 s 204(2)  28.313 s 321  28.295 Legal Profession Uniform Law Application Act 2014 Pt 7 Div 2  28.143 Pt 7 Div 3  28.101 s 69(2)  28.160 s 70(2)  28.165 s 70(5)  28.153 s 73  28.174 s 74(1)  28.152, 28.154 s 76  28.130, 28.137 s 76(1)  28.137 s 77(2)  28.130 s 78(1)  28.167 s 83(1)  28.174 s 85(1)  28.174 s 89(1)  28.174 s 89(4)  28.174 s 194  26.17

Page 42 of 135 Table of Statutes Sch 2 s 2(1)  4.16 Sch 2 s 2(2)  4.16 Sch 2 s 2(3)  4.16 Sch 2 s 2(4)  4.16 Sch 2 s 4(1)  4.16 Sch 2 s 4(2)–(4)  4.16 Sch 2 s 5  4.16 Sch 2 s 5(1)  4.16 Legal Profession Uniform Law Application Regulation 2015 reg 59  28.137 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 19.4  15.247 r 20.1  15.84 r 20.3  15.84 Legal Profession Uniform Law Conduct (Barristers) Rules 2015 r 27  15.247 r 79  15.84 r 81  15.84 Limitation Act 1969  26.7, 26.13, 26.35, 26.38, 26.39 Pt 2  26.13 Pt 2 Div 3  26.16 Pt 4 Div 1  26.7 s 6A  26.13 s 7  26.11 s 9  26.12 s 11(1)  26.13 s 11(3)  26.36 s 11(3)(ii)  26.36 s 11(3)(b)(iii)  26.36 s 11(3)(b)(iv)  26.36 s 13  26.14 s 14  26.13 s 14B  26.13 s 17(1)  24.15 s 41  26.13 s 42  26.13 s 50C  26.13 s 50C(1)  26.25, 26.54 s 50C(1)(b)  26.26 s 50D  26.25 s 50D(1)  26.25 s 50D(1)(b)  26.27 s 50D(1)(c)  26.27 s 50D(2)  26.25, 26.27 s 50D(3)  26.25 s 50F  26.39 s 50F(2)  26.36 s 50F(4)  26.36 s 52  26.38 s 54  26.46 s 54(2)(a)(i)  26.46 s 54(2)(a)(ii)  26.46 s 54(3)  26.46

Page 43 of 135 Table of Statutes s 54(4)  26.46 s 55(1)(a)  26.42 s 55(1)(b)  26.42 s 56  26.42 s 56A(2)  26.58 s 62A  26.26, 26.54 s 62B  26.54 s 68A  26.7 s 68A(1)  26.7 s 92  26.82 Local Court Act 2007 Pt 3  4.39 s 7  4.39 s 9(1)  4.39 s 29  4.40, 4.41 s 31  4.40 ss 35–37  4.41 s 48(1)  4.40 Oaths Act 1900 s 29  7.81 Partnership Act 1892 s 23(1)  24.18 Property (Relationships) Act 1984 s 20(1)  7.46 Real Property Act 1900 s 105  24.35 ss 105–105B  24.35 Road Transport Act 2013 s 279  15.132 Sheriff Act 2005 s 7A(1)  24.28 s 7A(3)  24.28 Supreme Court Act 1970  1.14, 2.18 s 18  23.19 s 44  25.76 s 66  10.10 s 66(4)  10.9 s 67  24.61 s 75  23.19 s 75A(5)  25.14, 25.35 s 81(1)(a)  1.27 s 85  11.20, 22.1 s 101  25.35 s 101(1)(a)  25.5 s 101(2)  25.35 s 101(2)(c)  25.75

Page 44 of 135 Table of Statutes s 101(2)(e)  25.19 s 104  25.34 s 121  25.30 Supreme Court (Corporations) Rules 1999  4.52 Supreme Court Rules 1970 Pt 10 r 1A  6.45 Pt 10 r 6A  6.45 Pt 55 r 13(3)  24.87 r 7(1)  1.27 Uniform Civil Procedure Act 2005 s 21  4.128 s 31.4 (3)  20.14 s 87  18.29 Uniform Civil Procedure Rules 2005  15.158, 21.48, 21.65, 23.32, 24.31, 27.32, 27.67 , 28.101 Pt 2  5.15 Pt 3  4.80 Pt 4 Div 1  4.58 Pt 4 r 4.2  4.79 Pt 4 r 4.10(1)  4.80 Pt 4 r 4.10(3)  4.80 Pt 4 r 4.11  4.80 Pt 4 r 4.12  4.80 Pt 5  15.22 Pt 6 r 6.13  4.81 Pt 6 r 6.14(a)  4.82 Pt 6 r 6.14(b)  4.82 Pt 6 r 6.14(c)  4.82 Pt 6 r 6.15  4.82 Pt 9  4.139, 7.32, 7.34 Pt 11A  5.148 Pt 12  7.76 Pt 14 Div 3  7.13 Pt 14 Div 6  7.46 Pt 15  7.5, 7.19 Pt 15 Div 2  7.46 Pt 15 Div 3  7.46 Pt 15 Div 4  7.46 Pt 18  8.2 Pt 25  10.1, 10.2 Pt 32  5.126 Pt 35  20.11 Pt 38  24.20 Pt 39 Div 2  24.71 Pt 40  24.82 Pt 43  24.29 Pt 45  12.12 O 2  20.33 O 34  20.33 r 1.12  5.15, 5.91, 11.5, 11.36, 11.53, 25.57 r 2.1  1.89, 11.23, 20.34

Page 45 of 135 Table of Statutes r 2.3  20.34 r 2.3(j)  20.34 r 2.3(k)  20.25, 20.34 r 3.4  5.13 r 3.4(3)  5.17 r 3.4(5)  5.18 r 3.7  5.43, 5.44 r 4.2  7.80 r 4.2(1)(g)  5.46 r 4.5(1)  5.49 r 4.5(1)(a)  5.49 r 4.5(2)  5.47 r 4.5(3)  5.49 r 4.10(1)(a)  5.13 r 4.10(1)(b)  5.13 r 4.10(3)  5.17 r 4.10(4)  5.18 r 4.10(5)(a)(i)  5.18 r 4.10(5)(a)(ii)  5.18 r 4.10(5)(b)  5.18 r 4.12  5.16 r 4.15  7.14, 11.81 r 5.1  15.128 r 5.2  15.127 r 5.2(1)  15.128 r 5.2(1)(a)  15.129 r 5.2(2)(a)  15.127 r 5.2(7)  15.127 r 5.3  15.137 r 5.3(1)  15.137 r 5.4  15.173 r 5.4(2)  15.173 r 5.8  28.220 r 6.1(1)  5.46, 6.1, 6.14 r 6.1(2)  6.1, 6.14 r 6.2  4.76 r 6.2(1)  4.78, 7.45 r 6.2(2)  4.76 r 6.2(3A)  5.35 r 6.2(4)  4.78 r 6.3  4.76 r 6.4(1)  4.76 r 6.4(3)  4.76 r 6.4(4)  4.76 r 6.5  4.76 r 6.6  4.76 r 6.9  5.46, 6.12 r 6.10(1)(a)(i)  6.12 r 6.10(1)(a)(ii)  6.14 r 6.10(1)(b)(i)  6.13 r 6.10(1)(b)(ii)  6.14 r 6.11(1)  6.32, 6.33 r 6.11(2)  6.32 r 6.12(1)  4.79 r 6.12(2)  4.79 r 6.12(3)–(8)  4.79 r 6.15  6.13 r 6.15(3)  4.78 r 6.15(5)  4.78 r 6.18  13.7

Page 46 of 135 Table of Statutes r 6.19  13.4, 13.7 r 6.20  13.5 r 6.22  4.123, 13.6, 13.9 r 6.24  13.10 r 6.28  13.27 r 6.29  13.10 r 7.3(1)  15.151 r 7.13  3.124 r 7.14(1)  3.124 r 7.14(2)  3.124 r 7.15(1)  3.125 r 9.1(1)  7.45 r 9.1(2)  4.140 r 9.1(3)  4.140, 7.45 r 9.1(4)  4.140 r 9.1(5)  4.140 r 9.7  4.140 r 9.8  4.123 r 10.5(1)(a)  5.7, 5.33, 5.38 r 10.5(1)(b)(i)  5.40 r 10.5(1)(b)(ii)  5.41 r 10.5(1)(c)  5.39 r 10.5(1)(c)(i)  5.39 r 10.5(1)(c)(ii)  5.41 r 10.5(2)(a)  5.40 r 10.5(2)(b)  5.42 r 10.5(2)(c)  5.43 r 10.5(3)  5.31 r 10.6  5.83 r 10.9  5.74 r 10.10  5.74 r 10.11(2)(a)  5.69 r 10.11(2)(b)  5.70 r 10.12  5.75 r 10.13  5.80 r 10.14  5.52 r 10.14(3)  5.56 r 10.14(3A)  5.56 r 10.14(4)  5.56 r 10.16  5.57 r 10.20(1)  5.7, 5.33, 5.38 r 10.20(2)(a)  5.32 r 10.21(1)  5.34 r 10.21(2)  5.34 r 10.21(3)  5.34 r 10.23  5.81 r 10.27  5.88 r 11.2  5.130 r 11.3  5.126 r 11.4  5.134 r 11.5  5.134, 5.138 r 11.8AA  5.136 r 11.8AB  5.140 r 11.8AC  5.144 r 11.10  5.146 r 11.11  5.146 r 11.15  5.116 r 11A.3  5.148 r 11A.4(1)  5.149 r 11A.4(2)  5.149

Page 47 of 135 Table of Statutes r 11A.4(3)  5.149 r 11A.4(4)  5.149 r 11A.4(5)  5.149 r 11A.5  5.150 r 11A.6  5.151 r 11A.7  5.149 r 11A.8  5.151 r 11A.10  5.152 r 11A.11  5.153 r 11A.12  5.154 r 12.1  14.6 r 12.1(1)  14.1 r 12.3  14.14 r 12.4  14.12, 14.13 r 12.6  14.17 r 12.6(2)  7.76, 14.19 r 12.7  9.61, 11.50 r 12.8  9.61 r 12.11  6.14, 6.40 r 12.11(3)  6.61 r 13.1  9.76, 9.82 r 13.2  9.78, 9.82 r 13.4(1)  7.14 r 13.4(1)(b)  9.78 r 13.4(1)(c)  11.77, 11.81 r 14.2  7.45, 7.89 r 14.2(2)  7.45 r 14.3  5.15, 7.26 r 14.3(1)  6.12, 7.45, 9.15 r 14.4  5.15, 7.35 r 14.4(1)  7.45 r 14.4(2)  7.35, 7.45 r 14.4(3)  7.45 r 14.5  7.35, 7.45 r 14.10  7.13 r 14.11  7.13 r 14.12  7.46 r 14.13  7.46 r 14.14  7.15 r 14.14(2)  26.7 r 14.14(2)(b)  7.27 r 14.14(3)  7.46, 26.7 r 14.15  7.46 r 14.16  7.46 r 14.18  7.14 r 14.19  7.13 r 14.22  7.46, 7.81 r 14.23  7.29, 7.46, 7.81 r 14.23(3)  7.81 r 14.27(2)  7.37 r 14.28  7.14, 7.77 r 14.28(1)(c)  11.77, 11.81 r 15.1(1)  7.15 r 15.2  7.15 r 15.3  7.15, 7.22, 7.46 r 15.4  7.46 r 15.5(1)  7.46 r 15.5(2)  7.46 r 15.6  7.46 r 15.7  7.46

Page 48 of 135 Table of Statutes r 15.8  7.46 r 15.10  7.25 r 15.11  7.46 r 16.2(1)(a)  9.15 r 16.2(2)(c)  9.14, 9.20 r 16.3(1)(a)  9.15 r 16.3(2)  9.15 r 16.3(2)(a)  5.87 r 16.4  9.24 r 16.5  9.24 r 16.5(1)  9.35 r 16.6  9.24 r 16.6(1)(b)  9.28 r 16.6(1)(c)  9.28 r 16.6(2)(f)  9.52 r 16.7  9.8, 11.50 r 16.10  9.8 r 17.3  7.29, 15.222 r 17.3–17.4  15.221, 15.224 r 17.6  15.222 r 17.7  15.222 r 18.1  8.11 r 18.2(1)  8.7 r 18.2(2)(c)  8.21 r 18.3  8.11 r 18.4  8.7, 8.10 r 18.6  8.5 r 18.9  8.5 r 19.1(1)  7.66 r 19.1(2)  7.66 r 20.26  27.67 r 20.26(1)  27.50, 27.51, 27.54 r 20.26(2)(a)(i)  27.50 r 20.26(2)(a)(ii)  27.54 r 20.26(2)(b)  27.51 r 20.26(2)(c)  27.60 r 20.26(2)(d)  27.50 r 20.26(2)(f)  27.52 r 20.26(3)  27.60 r 20.26(5)  27.52 r 20.26(9)  27.119 r 20.26(11)  27.69 r 20.27(1)  27.71 r 20.27(2)  27.72 r 20.27(3)  27.73, 27.78 r 20.28(1)  27.74 r 20.28(2)  27.74 r 20.29(1)(a)  27.75 r 20.29(1)(b)  27.75 r 20.29(2)(a)  27.75 r 20.29(2)(b)  27.75 r 20.29(3)(b)  27.75 r 20.30(1)  27.120 r 20.30(2)  27.120 r 20.30(3)  27.120 r 21.1  15.19 r 21.1(1)  15.20 r 21.2  15.22 r 21.2(1)  15.19 r 21.2(2)  15.19

Page 49 of 135 Table of Statutes r 21.2(4)  15.19 r 21.3  15.57 r 21.3(1)(d)  15.61 r 21.3(2)  15.57 r 21.3(2)(d)  15.57 r 21.4  15.41, 15.59 r 21.4(2)(a)  15.52 r 21.4(3)  15.60 r 21.5(2)  15.62 r 21.5(2)(b)  15.62 r 21.5(2)(c)  15.62 r 21.5(2)(d)  15.62 r 21.6  15.73 r 21.7  15.184 r 21.8  15.22 r 21.10(1)(a)  15.178 r 21.10(1)(b)  15.179 r 21.11  15.179 r 22.1(2)  15.96 r 22.1(3)  15.101 r 22.1(4)  15.97 r 22.2  15.96, 15.104 r 22.2(a)  15.102, 15.107 r 22.2(b)  15.108 r 22.2(c)  15.105 r 22.3(2)  15.112 r 22.3(2)(c)  15.112 r 22.4  15.115 r 22.5  15.116 r 22.6  15.117 r 23.8  15.225 r 23.8(4)  15.225 r 23.9  11.70 r 23.9(6)  15.76 r 24.3  15.119 r 25.2  10.1 r 25.2(3)  15.252 r 25.8  10.63 rr 25.10–25.17  10.107 r 25.16  10.136 r 25.17  28.220 r 25.19  15.232 r 25.20  15.239 r 25.21  15.233 r 25.22  15.234 r 25.22(1)(d)  15.263 r 25.24  28.220 r 29.1  22.26 r 29.3  9.2 r 29.5  22.9, 22.23, 22.25, 22.74 r 29.6  22.25 r 29.6(2)  22.26 r 29.6(4)  22.30 r 29.7  3.74, 22.105, 22.107 r 29.7(2)  22.110 r 29.7(2)(a)  22.111, 22.113 r 29.7(4)  22.113 r 29.9(4)  22.62 r 31.1  20.33 r 31.1(2)  20.26, 20.33, 22.5

Page 50 of 135 Table of Statutes r 31.1(3)  20.25, 20.33 r 31.2  20.26, 20.33 r 31.4  20.35, 20.64 r 31.4(1)  20.35 r 31.4(2)  20.35 r 31.4(3)  20.35 r 31.4(4)  20.35, 20.74, 20.76 r 31.4(5)  20.35, 20.69 r 31.4(5)(a)  20.68 r 31.4(6)  20.35 r 31.4(7)  20.35 r 31.4(8)  20.35 r 31.17  21.4 r 31.17(a)  21.48 r 31.17(b)  21.48 r 31.17(d)  21.65 r 31.19  21.4, 21.48, 21.80 r 31.20  21.4, 21.50, 21.80 r 31.20(2)(h)  21.53 r 31.23  21.4 r 31.23(1)  21.38 r 31.24  21.53, 21.57 r 31.24(3)  21.46 r 31.24(4)  21.46 r 31.25  21.53 r 31.32(1)  15.157 r 31.32(3)  15.157 r 31.33(2)  15.158 r 31.35  21.80 r 31.37  21.4 r 31.46  21.75 r 33.2  22.89 r 33.2(1)(b)  15.150, 15.155 r 33.3(8)  15.157 r 33.4  15.161 r 33.5  15.156 r 33.6  15.160 r 33.6(1)  15.158 r 33.6(3)  15.156 r 33.6(4)  15.150 r 33.9(3)  15.160 r 33.11  15.158, 15.159, 24.82, 28.220 r 33.11(1)  15.159 r 33.12  11.72, 15.172, 22.89 r 33.13  15.155 r 34.1  15.178 r 35.3  7.80 r 35.3(1)  15.112 r 35.3(3)  8.14 r 35.8  5.88 r 35.8(2)(a)  9.52 r 36.1  23.14 r 36.1A  23.47, 25.74 r 36.3  23.25 r 36.4  23.21 r 36.5  23.23 r 36.11  23.25 r 36.14  23.29 r 36.15  8.32, 9.43, 11.51, 23.33, 23.40 r 36.15(1)  9.52, 23.40

Page 51 of 135 Table of Statutes r 36.16  8.32, 23.33 r 36.16(1)  11.51 r 36.16(2)  11.51, 11.53, 23.40 r 36.16(2)(a)  9.43 r 36.16(2)(b)  6.40, 22.108 r 36.16(3)  8.32 r 36.16(3A)  23.39 r 36.16(3B)  23.39 r 36.17  23.31, 23.40 r 37.1A  24.40 r 37.2(1)  24.40 r 37.2(2)(b)  24.40 r 37.3  24.40 r 37.3(4)  24.40 r 37.4  24.40 r 37.4A(1)  24.40 r 37.5  24.40 r 37.6  24.40 r 37.7  24.40 r 38.1  24.24 r 38.1(2)  24.24 r 38.2  24.21 r 38.2(b)  24.24 r 38.6  24.23 r 38.7  24.21 r 39.1(1)(d)  24.69 r 39.3(3)  24.69 r 39.4  24.26, 24.36 r 39.5  24.33 rr 39.5–39.15  24.33 r 39.6(1)  24.34 r 39.6(2)  24.34 r 39.6(3)  24.34 r 39.7(1)  24.33 r 39.7(2)  24.33 r 39.10  24.33 r 39.13  24.33 r 39.15  24.34 r 39.15(1)  24.26 r 39.18  23.29 r 39.20  24.16 r 39.24  23.29 r 39.34  24.52 r 39.35  24.52 r 39.39  24.52 r 39.39A  24.50 r 39.40  24.52 r 39.44(2)  24.57 r 39.46  24.31 r 39.51  24.26 r 39.52  24.28 r 40.6  24.83, 24.93 r 40.6(2)(c)  24.85 r 40.7  23.23, 23.29, 24.85 r 40.7(1)  24.84 r 40.7(3)  24.84 r 40.7(5)  24.84 r 40.8  27.72 r 41.16  24.60 r 42.1  28.49

Page 52 of 135 Table of Statutes r 42.2  28.96, 28.101, 28.119 r 42.4  28.234 r 42.5  28.112 r 42.8–42.9  15.223 r 42.13A  27.78 r 42.14  27.95 r 42.15  27.100 r 42.15A  27.101 r 42.16  27.92 r 42.17  27.91 r 42.19  14.12 r 42.19(2)  14.12 r 42.21  10.144 r 42.21(1)  10.143, 10.154 r 42.21(1)(d)  10.148 r 42.21(1)(e)  10.149 r 42.21(1A)  10.154 r 42.22  27.16 r 42.27  28.208 r 42.33  28.220 r 42.34  4.40 r 42.35  4.40 r 45.1(1)  12.18 r 45.1(2)  12.18 r 45.2  12.12 r 46.12  23.30 r 49.4  25.34 r 49.19  25.34 r 50.7  24.7, 24.9 r 50.8  10.173 r 50.11  25.72 r 51.4  25.5 r 51.6  25.54, 25.73 r 51.7  25.54 r 51.8  25.54 r 51.9  25.56 r 51.16  25.54, 25.56 r 51.17  25.71 r 51.18  25.54 r 51.23  25.55 r 51.44  24.7, 25.77 r 51.44 (2)  24.9 r 51.50  10.173 Sch 3 Item 3  15.158 Sch 6  5.134 Sch 7  21.4, 21.38 Dictionary  4.139 Vexatious Proceedings Act 2008  3.119 s 8(1)  3.120 s 8(3)  3.120 s 8(4)  3.120 s 13  3.120

Northern Territory Commercial Arbitration (National Uniform Legislation) Act 2011  29.33, 29.39

Page 53 of 135 Table of Statutes s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115, 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Construction Contracts (Security of Payments) Act Pt 3  29.4 Criminal Code 1983 Pt 4 Div 5  3.100 s 96  3.100 s 102  15.77, 15.235 s 118  3.100 s 119  3.100 Crown Proceedings Act 1993  24.17 s 11  24.17 s 12  24.17 Defamation Act 2006  3.106 s 20  14.14 s 21  3.106 s 24(2)  3.106 Evidence Act 1939 s 10  18.2 Evidence Act 2004  16.3 Evidence (National Uniform Legislation) Act 2011  15.220, 17.5, 17.7, 17.10, 17.23, 17.79, 21.6, 21.12, 21.14, 21.21, 21.36 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88

Page 54 of 135 Table of Statutes s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10 s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 92  26.82 s 118  17.7 s 119  17.7 s 126J  15.218 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 128(1)  18.6 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33, 27.24 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85, 27.24 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6

Page 55 of 135 Table of Statutes s 131(5)(b)  17.6 s 131A(1)  17.8 s 135  20.73, 21.36, 21.41, 22.66 ss 135–136  20.73 s 136  20.73 s 137  21.36, 21.41 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 s 169  15.225 s 187  18.8 s 191  22.14 Information Act 2002 s 15  15.229 s 56(1)(a)  15.229 s 57  15.229 Interpretation Act s 25  5.31 s 25(3)  5.23 Juries Act 1962 s 7  11.20 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Land Title Act 2000 s 132  24.35 Law of Property Act 2000 s 62  11.14 Legal Profession Act 2006 s 295(1)  28.189, 28.191, 28.192 s 306(1)(c)  28.191 s 306(1)(d)  28.191 s 314(b)  28.38, 28.195 s 314(c)  28.38, 28.195 s 317  28.35 s 317(2)  28.35 s 318(1)  28.189 s 318(2)  28.190 s 318(3)  28.190 s 318(5)  28.191 s 319(2)  28.192 s 319(3)  28.192 s 319(4)  28.193 s 320  28.194 s 320(1)  28.194 s 321  28.34

Page 56 of 135 Table of Statutes s 322  28.38, 28.195 s 322(1)  28.35, 28.195 s 323  28.36 Legal Profession Act 2013  28.299 s 303  28.300, 28.301 s 304  28.300 s 305  28.300 s 310  28.300, 28.302 s 311(1)–(2)  28.303 s 311(3)  28.303 s 311(3)–(4)  28.303 s 314  28.300, 28.308 s 328  28.312 s 332  28.304 s 334  28.306 s 335(2)  28.307 s 335(3)  28.307 s 336(b)  28.306 s 337  28.308 s 340  28.310 s 341  28.310 s 346  28.310 s 350(2)  28.313 s 350(3)  28.313 Limitation Act 1981  26.7, 26.13, 26.35, 26.38, 26.39 Pt 2  26.13 s 3  26.11 s 4  26.13, 26.36 s 5A  26.13 s 7  26.12 s 11  26.14 s 12  26.13 s 12(1)(b)  26.33 s 12(2)(a)  26.13 s 12(2)(b)  26.13 s 19(2)  26.7 s 26  26.13 s 27  26.13 s 35D(4)  26.7 s 36  26.38 s 41  26.46 s 41(2)(a)(i)  26.46 s 41(2)(a)(ii)  26.46 s 41(3)  26.46 s 42(1)(a)  26.42 s 42(1)(b)  26.42 s 43  26.42 s 44(3)(b)(i)  26.51 s 44(3)(b)(ii)  26.51 s 44A(2)  26.58 s 48A  7.73 Local Court Act Pt III  4.43 s 3  4.43 s 4  4.43

Page 57 of 135 Table of Statutes s 5  4.43 s 12  4.43 s 13A  4.41 Local Court (Civil Jurisdiction) Rules  7.35 Pt 5 Div 3  7.13, 7.49 Pt 8  7.26 Pt 9  7.32 Pt 10  7.25 Pt 13  7.34, 7.49 r 5.09(1)  7.50 r 5.12  7.14 r 5.13  7.5, 7.19 r 5.15(2)(a)  7.66 r 5.18  7.76 r 7.01(1)  7.49 r 7.01(2)(e)(ii)  7.15, 7.22 r 8.03(1)  7.49 r 8.03(1)(a)  7.15, 7.22 r 9.01  7.49 r 9.02  7.49 r 10.01  7.8, 7.25 r 10.04  7.8, 7.25 r 13.02(2)  7.49 r 13.06  7.49 r 15.15(2)(c)  7.49 r 19.05  7.29 r 28.02  7.14, 7.77 Local Court (Civil Procedure) Act s 27  24.37 Northern Territory Civil and Administrative Tribunal Act s 10  4.41 Partnership Act 1997 s 27(1)  24.18 Sale of Goods Act 1972 s 29(1)  24.30 s 29(2)  24.30 Sheriff Act 1963 s 7(1)(a)  24.26 Small Claims Act s 5  4.41 s 6  4.41 Supreme Court Act  2.3 Pt II Div 2  4.43 s 9  25.37 s 10  4.43

Page 58 of 135 Table of Statutes s 12  4.43 s 17  3.66 s 21  25.37 s 41K  25.36 s 49  25.36 s 51  25.36, 25.37 s 51(1)  25.5 s 53  25.19, 25.36 s 57  25.77 s 66(2)(a)  14.25 s 69  10.9, 24.61 s 84  23.54 s 84(2)(a)  23.57, 23.61 s 85  23.54, 23.55, 23.61 Supreme Court Rules  1.49 O 4 r 4.01  4.83 O 4 r 4.04  4.83 O 4 r 4.05  4.83 O 4 r 4.06  4.83 O 4 r 4.07  4.83 O 5 r 5.02  4.84 O 5 r 5.03(1)  4.85 O 5 r 5.03(2)  4.85 O 5 r 5.03(3)  4.85 O 5 r 5.04  488 O 5 r 5.05  4.89 O 5 r 5.06  4.86 O 5 r 5.07  4.86 O 5 r 5.08  4.87 O 5 r 5.09  4.88 O 5 r 5.11(1)–(3)  4.90 O 5 r 5.11(2)  4.86 O 5 r 5.11(4)  4.89 O 5 r 5.12  4.90 O 6 r 6.02(1)  5.32 O 6 r 6.12  5.77 O 7A  5.148 O 8 r 8.04  4.85 O 9 r 9.04  4.123 O 10  7.32 O 10 r 10.06  4.123 O 11  7.34, 7.47 O 11 r 11.12(b)(ii)  4.123 O 12  24.29 O 13  7.13 O 13 r 13.14  4.128 O 17 r 17.03(1)(a)  5.68 O 17 r 17.03(1)(b)  5.69 O 17 r 17.03(2)  5.68 O 17 r 17.03(3)  5.68 O 17 r 17.03(4)  5.69 O 25  7.76 O 26 Pt 4  27.16 O 30 r 2(4)  15.100 O 31  15.120 O 32 r 32.08(2)  5.32 Os 37–39  10.1 O 43  20.11

Page 59 of 135 Table of Statutes O 46  8.2 O 67  24.20, 24.25 O 71  24.47 O 72  24.47, 24.55 r 1.09A  25.36 r 1.10  1.49, 11.3 r 2.01  11.5 r 2.04  8.21 r 3.02  5.15, 5.91, 11.5, 11.36, 25.57 r 5.04  7.47 r 5.07(1)  5.46 r 5.11(3)  5.16 r 5.12  5.91 r 5.12(4)  5.93 r 6.01  5.7, 5.33, 5.38 r 6.03(1)  5.34 r 6.03(2)  5.35 r 6.04  5.75 r 6.04(d)  5.81 r 6.04(e)  5.81 r 6.05  5.49 r 6.05(1)  5.46 r 6.05(1)(a)  5.47 r 6.05(2)  5.46 r 6.05(2)(a)  5.47 r 6.06(1)(a)  5.39 r 6.06(1)(b)  5.40 r 6.06(1)(ca)  5.43 r 6.06(1)(cb)  5.43 r 6.06(1)(d)  5.40 r 6.06(2)  5.41 r 6.06(3)  5.57 r 6.06(3.1)  5.57 r 6.06(4)  5.31 r 6.07  5.88 r 6.08  5.80 r 6.09  5.52 r 6.10  5.56 r 6.11  5.57 r 6.13  5.83 r 6.16  5.88 r 7.01  5.137 r 7.01(c)  5.139 r 7.02  5.137 r 7.02(3)  5.141 r 7.02(5)  5.139 r 7.03  5.140 r 7.03(3)  5.139 r 7.04  5.144 r 7.05  5.144 r 7.06  5.116 r 7.08  5.146 r 7A.03  5.148 r 7A.04(1)  5.149 r 7A.04(2)  5.149 r 7A.04(3)  5.149 r 7A.04(4)  5.149 r 7A.04(5)  5.149 r 7A.05  5.150 r 7A.06  5.151

Page 60 of 135 Table of Statutes r 7A.07  5.149 r 7A.08  5.151 r 7A.10  5.152 r 7A.11  5.153 r 7A.12  5.154, 11.51 r 7A.12(2)  23.33, 23.40 r 8.02  6.1 r 8.04  9.16 r 8.04(a)  6.16 r 8.04(a)(iii)  6.16 r 8.04(b)–(d)  6.16 r 8.05(1)  6.17 r 8.05(2)  6.17 r 8.05(4)  6.17 r 8.06(1)  5.46, 6.17 r 8.06(2)  6.17 r 8.08  6.57 r 8.08(3)  6.57 r 8.09  6.40, 6.57 r 9.01  13.7 r 9.02  13.4, 13.7 r 9.03  13.5 r 9.04  13.6, 13.9 r 9.06  13.10 r 9.11  13.27 r 10.02  4.141, 7.47 r 10.02(3)  4.141 r 10.03  4.141, 7.47 r 10.04  4.141 r 10.04(2)(a)  7.47 r 10.04(2)(b)  7.47 r 10.04(3)–(6)  7.47 r 10.04(5)  4.141 r 11.01  4.142, 7.47 r 11.02  4.143 r 11.04  4.143 r 11.05  4.143 r 11.05(2)(a)  7.47 r 11.05(2)(b)  7.47 r 11.07(1)  7.47 r 11.15  4.142 r 13.01  7.80 r 13.02(1)(b)  7.16, 26.7 r 13.02(2)  7.13 r 13.04  7.13 r 13.05  7.13 r 13.07(1)(a)  26.7 r 13.07(1)(b)  7.15 r 13.07(2)  7.48 r 13.07(3)  7.48 r 13.09  7.14 r 13.10  7.5, 7.19 r 13.10(2)  7.15 r 13.10(3)  7.15, 7.22, 7.48 r 13.10(4)  7.48 r 13.10(5)  7.48 r 13.11  7.25 r 13.11(3)  7.8, 7.25 r 13.12  7.26 r 13.13(2)  7.37

Page 61 of 135 Table of Statutes r 13(3)  21.48 r 14.01  7.47 r 14.02  5.15, 7.47 r 14.04  5.15, 9.16 r 14.04(a)  7.47 r 14.04(b)  7.47 r 14.05  5.15, 7.35, 7.47 r 14.06  7.37, 7.47 r 14.07  7.47 r 14.09(c)  7.89 r 14.10  5.15 r 14(2)(a)  21.53 r 14(2)(b)  21.57 r 15.01  3.124 r 15.02(1)  3.124 r 15.02(3)  3.124 r 15.03(6)  3.125 r 15.08  3.126 r 17.10  5.73 r 18.02  13.36 r 21.01(1)  9.16 r 21.01(2)  9.16 r 21.01(3)  9.16 r 21.01(3)(a)  5.87 r 21.03(1)(a)  9.24, 9.29 r 21.03(1)(a)(i)  9.29 r 21.03(1)(a)(ii)  9.29 r 21.03(1)(b)  9.8, 9.24, 11.50 r 21.03(1)(c)  9.24 r 21.03(1)(d)  9.35 r 21.03(2)  9.29 r 21.04(1)  9.8 r 21.07  9.43, 23.33, 23.40 r 22.02  9.86 r 22.02(1)  9.78 r 22.03(1)  8.13 r 22.15  23.33, 23.40 r 23.01(1)  14.25 r 23.01(2)(c)  11.77, 11.81 r 23.02  7.14, 7.77 r 23.02(d)  11.77, 11.81 r 23.03  9.86 r 23.03(1)  9.78 r 24.01  9.62, 11.50 r 24.02  11.44 r 24.02(1)(b)  15.76 r 24.06  11.53, 23.33, 23.40 r 25.02(1)(a)  14.6 r 25.02(2)  14.1 r 25.02(3)–(6)  14.17 r 25.02(5)  7.76, 14.19 r 25.03  14.1 r 25.05  14.12 r 25.06  14.14 r 25.07  14.13 r 26.02(1)  27.47, 27.54 r 26.02(2)  27.47, 27.50, 27.54 r 26.02(3)(a)  27.50 r 26.02(3)(b)  27.50 r 26.03(1)  27.50

Page 62 of 135 Table of Statutes r 26.03(3)  27.52 r 26.03(4)  27.71 r 26.03(5)  27.69, 27.72 r 26.03(7)  27.61, 27.80 r 26.03(8)  27.61, 27.80 r 26.04  27.119 r 26.05(1)  27.120 r 26.05(2)  27.120 r 26.07(1)(a)  27.75 r 26.07(1)(b)  27.75 r 26.07(2)  27.75 r 26.08(2)  27.96 r 26.08(3)  27.106 r 26.08(5)  27.92 r 26.08(7)  27.91 r 26.09  27.53 r 26.10  27.53 r 26.11  27.47 r 26.17  27.17 r 26.20  27.17 r 26.21(1)  27.17 r 26.21(2)  27.17 r 26.21(3)  27.17 r 26.21(6)  27.17 r 26.21(9)  27.17 r 26.22(1)  27.17 r 26.23  27.17 r 26.24  27.17 r 26.26(1)  27.17 r 26.26(5)  27.17 r 26.26(6)  27.17 r 27.06  5.18 r 27.06(2)  5.18 r 27.06(2)(a)  5.18 r 27.06(3)  5.18 r 27.07  5.18, 11.81 r 28.01  5.13, 5.17 r 28.03  5.16, 5.17 r 28.05  3.58 r 28.05(1)  5.19 r 28.05(2)(a)  3.58, 5.19 r 28.05(2)(b)  3.58, 5.19 r 29.2(1)  15.27, 15.41 r 29.2(2)  15.27 r 29.2(3)  15.27 r 29.2(5)  15.27 r 29.3(6)  15.59 r 29.4  15.57 r 29.4(c)  15.61 r 29.7  15.27 r 29.8  15.67, 15.69 r 29.9(1)  15.62 r 29.9(2)–(3)  15.62 r 29.9(4)  15.62 r 29.10  15.178 r 29.10(3)  15.179 r 29.12  15.40 r 29.15  15.73 r 30.1  15.96 r 30.2(2)  15.96

Page 63 of 135 Table of Statutes r 30.4  15.112 r 30.5  15.113 rr 30.5–30.6  15.112 r 30.7(1)(a)  15.107 r 30.7(1)(c)  15.108 r 30.7(1)(e)  15.105 r 30.9  15.115 r 30.11  15.117 r 31.2(1)  15.120 r 31.2(2)  15.120 r 31.4  15.120 r 31.6(1)  15.120 r 31.8(1)  15.120 r 31.9  15.120 r 31.11  15.120 r 31.11(4)  15.120 r 32.3  15.127 r 32.3(1)  15.129 r 32.5  15.137 r 32.7  15.173 r 32.8  15.127 r 32.11  28.220 r 32.11(1)  15.173 r 34.01  5.15, 11.23, 22.9, 22.23, 22.74 r 35.02(2)  15.224 r 35.03  7.29, 15.221 r 35.03(2)  15.222 r 35.03(3)  15.224 r 35.04  15.222 r 35.05  15.221 r 35.05(2)  15.222 r 35.05(5)  15.224 r 35.06  15.223 r 35.07  15.222 r 35.08  15.178 r 36.01(1)  7.66 r 36.01(6)  7.73 r 36.03  7.66 r 36.06  7.66 r 36.07  23.31 r 37.01  15.225 r 37A  10.107 r 37A.08  28.220 r 37B.02  15.232 r 37B.03  15.239 r 37B.04  15.233 r 37B.05  15.234 r 37B.05(1)(d)  15.263 r 37B.07  28.220 r 40.02  20.36 r 40.02(a)  8.14 r 42.02(b)  15.150, 15.155, 20.26, 22.5 r 40.02(c)  20.26 r 40.03  20.36 r 40.03(1)  20.25 r 41.1  15.119 r 41.10  28.208 r 42.02  22.89 r 42.03(8)  15.157 r 42.04  15.161

Page 64 of 135 Table of Statutes r 42.04(1)  23.33, 23.40 r 42.05  15.156, 24.82 r 42.06  15.158 r 42.06(1)  15.158 r 42.06(4)(b)  15.150, 15.160 r 42.11  15.158, 15.159, 28.220 r 42.12  15.172, 22.89 r 42.13  15.155 r 43.03(1)  8.14, 20.11 r 43.03(2)  8.14 r 44.03  21.4 r 46.02(3)  8.12 r 46.04(1)  8.11 r 46.05  8.7 r 46.06  8.10 r 46.08  6.40, 8.32 r 47.02  11.20 r 47.03  22.1 rr 48.12–48.13  29.51 r 48.13(8)  17.84 r 48.17  9.2 r 48.18  22.9, 22.23, 22.74 r 48.21  9.2 r 48.22(3)  22.9, 22.23, 22.74 r 48.25  20.36, 20.37 r 48.25(1)  20.25, 20.37 r 48.25(2)  20.38 r 48.25(3)  20.38 r 48.25(5)  20.37 r 49.01  22.25 r 49.01(1)  20.36 r 49.01(2)  22.26 r 49.01(5)  22.30 r 49.02  3.74, 22.105 r 49.02(1)(b)  22.111, 22.113 r 49.02(1)(d)(i)  22.113 r 49.02(2)  22.108, 23.33, 23.40 r 49.03  22.110 r 59.01  23.14 r 59.02(1)  23.21 r 59.03  23.23 r 59.05  23.30 r 59.05(6)  23.33, 23.40 r 59.06  25.74 r 59.06(3)  23.47 r 60.01  23.24 r 60.02  23.25 r 60.04  23.25, 25.36 r 60.05  23.13, 23.50 r 62.02  10.143 r 62.05  23.33, 23.40 r 63.01(1)  28.13 r 63.03  28.13 r 63.03(1)  28.205 r 63.07(a)  28.57, 28.73 r 63.07(c)  28.57, 28.177 r 63.20  28.26 r 63.21  28.208 r 63.21(1)  28.260, 28.272, 28.287 r 63.21(1)(a)  28.289

Page 65 of 135 Table of Statutes r 63.21(3)  28.288 r 63.21(4)  28.290 r 63.21(6)  28.290 r 63.22  4.40, 4.43 r 63.22(1)(b)  4.43 r 63.25  28.95 r 63.26  28.100 r 63.27  28.112, 28.114 r 63.28  28.96, 28.102, 28.119 r 63.34(4)  28.167 r 63.34(5)  28.167 r 63.34(5)(b)  28.169 r 63.34(6)  28.167 r 63.36  28.154 r 63.37  28.154 r 63.40  28.154 r 63.45  28.155 r 63.45(2)  28.155 r 63.51  28.161 r 63.52  28.162 r 63.55  28.170 r 63.55(11)  28.170 r 66.03  24.69 r 66.05  24.83, 24.85 r 66.05(1)(a)  24.93 r 66.05 (2)  15.116 r 66.10  23.23, 23.29, 24.84 r 66.10(5)  24.84 r 66.11  24.72 r 66.14  24.7 r 66.16  24.7 r 67.02  24.21, 24.36 r 67.03  24.21 r 68.02(1)(a)  24.14 r 68.05(1)  24.16 r 68.05(2)  24.16 r 70.01  24.71 r 71.03  24.50 r 71.04  23.29 r 71.06(1)  24.53 r 71.09  24.53 r 72.06  23.29 r 73.01  24.58 r 73.02  24.56 r 73.04  24.57 r 73.06  23.29 r 73.07  24.56 r 73.08  24.57 r 73.12  24.60 rr 73.13–73.14  24.60 r 75.11  24.85 r 75.11(4)  24.87 r 83.04  25.56 r 83.07  25.5 r 83.16  25.71 r 83.16(3)  25.72 r 84.15  25.73 r 84.17(1)(a)  22.21 r 85.09  25.54 r 85.11  25.5

Page 66 of 135 Table of Statutes r 85.13  10.173 r 86.15  25.54 r 87.06  25.55 r 95.01  25.37 Sch 1, Forms 5A–5E  4.84 Supreme Court Rules 2013 r 63.45(4)  28.155 Uniform Civil Procedure Rules 2005  17.8 r 1.9(3)  17.8 Vexatious Proceedings Act  3.119 s 7(1)  3.120 s 7(5)  3.120 s 7(6)  3.120 s 11(2)  3.120

Queensland Acts Interpretation Act 1954 s 39A  5.31 s 39A(1)(b)  5.23 Building and Construction Industry Payments Act 2004 Pt 3 Div 2  29.4 Civil Proceedings Act 2011 Pt 13A  13.39 s 9  10.9 s 12  24.61 s 16  7.73 s 43  1.69 s 53  9.30 s 57  22.89 s 58  23.54 s 58(4)  23.57, 23.61 s 59  23.54, 23.55, 23.61 s 91  24.16 s 95  24.47 Commercial Arbitration Act 2013  29.33, 29.39 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115, 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47

Page 67 of 135 Table of Statutes s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Constitution of Queensland 2001 s 57  4.38 Criminal Code Act 1899 Ch 16  3.100 s 123  3.100 s 123A  3.100 Criminal Organisation Act 2009 s 10(1)  19.45 s 10(1)(c)  19.45 s 59  19.45 s 66  19.45 s 70  19.45 s 78(1)  19.45 s 80  19.45 s 83  19.45 Crown Proceedings Act 1980  24.17 s 9(2)  24.17 s 11  24.17 s 11(2)  24.17 s 19  5.81 Defamation Act 2005  3.106 s 23  14.14 s 24  3.106 s 27(2)  3.106 District Court of Queensland Act 1967 Pt 5 Div 1  4.38 s 8  4.38 s 72  4.40 Evidence Act 1977  27.24 s 10  18.2 s 38  18.6 ss 78–82  26.82 Judicature Act 1876  1.14

Page 68 of 135 Table of Statutes

Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Justices Act 1886 s 22  4.39 s 22A  4.39 Land Title Act 1994 s 116  24.35 Law Reform Act 1995 s 6  4.145 Legal Profession Act 2007  28.299 s 300  28.189, 28.191, 28.192 s 308  28.300, 28.301 s 309  28.300 s 311(1)(c)  28.191 s 311(1)(d)  28.191 s 315  28.300, 28.302 s 316(3)–(4)  28.303 s 319  28.308 s 319(1)(b)  28.38, 28.195 s 319(1)(c)  28.38, 28.195 s 322  28.35 s 322(2)  28.35 s 323(1)  28.189 s 323(2)  28.190 s 323(3)  28.190 s 323(4)  28.191 s 324(1)  28.192 s 324(2)  28.192 s 324(3)  28.192 s 324(4)  28.193 s 325  28.194 s 325(1)  28.194 s 326  28.34 s 327(1)  28.35, 28.195 s 327(2)  28.38, 28.195 s 328  28.36 s 333  28.312 s 335  28.304 s 337 … 28.306 s 338  28.306 s 339  28.308 s 340(1)  28.310 s 341(2)  28.310 s 342(1)  28.310, 28.313 s 342(2)(b)  28.313 Limitation of Actions Act 1974  13.29, 26.7, 26.13, 26.35, 26.37, 26.39 Pt 2  26.13, 26.16 s 5  26.13

Page 69 of 135 Table of Statutes s 5(2)  26.36 s 5(3)  26.36 s 7  26.11 s 10  26.13 s 10(4)  24.15 s 10AA  26.13 Magistrates Court Act 1921 s 4  4.39 s 4A  4.39, 4.40 Partnership Act 1891 s 26  24.18 Property Law Act 1974 s 59  11.14 Right to Information Act 2009 s 23  15.229 s 46  15.229 Sch 4 Pt 3 cl 2  15.229 Sch 4 Pt 3 cll 3–5  15.229 Sale of Goods Act 1896 s 28(1)  24.30 s 28(1A)  24.30 Supreme Court Act 1867 s 58  28.205 Supreme Court Act 1995  1.14 Supreme Court of Queensland Act 1991 s 8  3.48, 3.66 s 29  25.39, 25.76 s 43  23.25 s 44  25.39 s 46  22.1 s 62  25.39 s 62(1)  25.5 s 63  25.39, 25.75 s 93  28.116 Transfer of Land Act 1958 s 52  24.35 Uniform Civil Procedure Rules 1999  1.50, 27.112, 28.110, 28.116, 28.139 Ch 2 Pt 4  8.2 Ch 4 Pts 2–5  15.156 Ch 4 Pt 7 Div 3  5.148 Ch 6  7.13 Ch 6 Pt 3  7.5, 7.19 Ch 6 Pt 5 Div 2  7.32

Page 70 of 135 Table of Statutes Ch 6 Pt 6  4.145, 7.34, 7.51 Ch 7 Pt 1 Div 2  15.96 Ch 8  10.1 Ch 9 Pt 3  7.76 Ch 9 Pt 4  29.51 Ch 14 Pt 6  5.126 Ch 19  23.29 Ch 19 Pt 2  24.20 Ch 19 Pt 3  24.25 Ch 19 Pt 6  24.55 Ch 19 Pt 8  24.56 Ch 20  23.29 Ch 20 Pt 7  24.83 Ch 21  24.29 Pt 4  6.20 Pt 7 Ch 11  20.11 Pt 7 Div 1  5.126 r 5(1)  1.50 r 5(2)  1.50, 11.3 r 5(3)  1.50, 1.100, 11.40 r 5(4)  1.50, 1.100 r 7  5.15, 5.91, 11.5, 11.36, 25.57 r 8(1)  4.91, 5.16 r 8(2)  4.91 r 9  4.91 r 10  4.91 r 11  4.91 r 12  4.97 r 13  4.92 r 14  4.92 r 15  5.18, 11.81 r 16  6.40 r 17  4.93, 5.46 r 17(1)(a)(ii)  5.49 r 17(1)(b)(iv)  5.49 r 18  4.93 r 19  4.93 r 22  4.94 r 22(2)(b)  7.51 r 23  4.94 r 24  4.95, 5.91 r 24(1)  11.12 r 24(2)  5.95 r 25  6.20 r 26  4.96 r 26(1)  8.11 r 27  4.97 r 27(1)  8.7, 8.10 r 27(3)  8.21 r 28  8.7, 8.10 r 29  5.46 r 29(1)  6.20 r 29(2)  6.20 r 29(6)  6.1, 6.20 r 32  8.12 r 56(7)  11.51 r 60  13.7, 13.9 r 62  13.7 r 64  13.5 r 65  13.4, 13.7

Page 71 of 135 Table of Statutes r 68  4.123, 13.6, 13.9 r 69  13.10, 13.28, 13.29, 13.30 r 74  13.27 r 75  13.36 r 93(1)  3.124 r 93(3)  3.124 r 95(1)  3.125 r 98  3.126 r 101  5.31 r 103  5.31 r 105(1)  5.32 r 106(1)  5.34 r 106(2)  5.34 r 108  5.75 r 109  5.75 r 112(1)(a)–(c)  5.39 r 112(1)(d)  5.40 r 112(1)(e)(i)  5.42 r 112(1)(e)(ii)  5.43 r 112(1)(f)(i)  5.40 r 112(1)(f)(ii)  5.42 r 112(1)(f)(iii)  5.43 r 112(2)  5.31 r 112(3)  5.41 r 113  5.73 r 114(1)(a)  5.68 r 114(1)(b)  5.69 r 114(1)(c)  5.70 r 114(2)  5.68 r 114(3)  5.68 r 115  5.80 r 116  5.52 r 117  5.56 r 118  5.77 r 119  5.83 r 120  5.88 r 121  5.88 r 122(1)  5.42 r 124  5.134 r 126  5.142, 6.40 r 127(a)  5.134, 5.138 r 128(2)  5.140 r 129  5.144 r 130  5.146 r 130C  5.148 r 130D(1)  5.149 r 130D(2)  5.149 r 130D(3)  5.149 r 130D(4)  5.149 r 130D(5)  5.149 r 130E  5.150 r 130F  5.151 r 130G  5.149 r 130H  5.151 r 130J  5.152 r 130K  5.153 r 130L  5.154 r 135  6.1 r 137  5.15, 9.17 r 137(1)  6.19, 7.51

Page 72 of 135 Table of Statutes r 137(2)  6.19 r 138  9.17 r 139  6.19 r 139(1)(b)  7.51 r 140  5.46 rr 140–142  6.19 r 144(2)  6.54 r 144(4)  6.55 r 144(5)(a)  6.55 r 144(6)  6.56 r 144(7)  6.54, 6.55 r 146(1)(g)  7.80 r 149(1)(c)  7.15 r 149(1)(e)  7.16, 26.7 r 149(2)  7.13 r 150  7.52 r 150(1)(c)  26.7 r 150(1)(f)  7.15, 7.22 r 150(1)(i)  7.15, 7.22 r 150(1)(k)  7.15, 7.22 r 150(4)(c)  7.15 r 151(1)  7.13 r 151(2)  7.13 r 153(1)  7.13 r 154  7.14 r 155  7.52 r 157(a)  7.15 r 157(c)  7.15, 7.22 r 158  7.52 r 159  7.52 r 161  7.25 r 162  7.14 r 164  5.15, 7.35, 7.51 r 164(1)(b)  7.51 rr 165–167  7.26 r 168  7.37 r 169  7.37 r 171  7.77 r 171(1)(e)  11.77, 11.81 r 173  4.128 r 174  7.52 r 177  4.144 r 178(1)  7.51 r 178(1)(a)  4.144 r 178(1)(b)  4.144 r 178(2)(b)  7.51 r 178(4)  7.51 r 179  4.144, 7.51 r 181  7.51 r 182  4.123 r 188  7.76 r 189  7.29, 15.221, 15.223 r 189(2)  15.222 r 189(3)  15.224 r 190  15.222 r 191  4.145 r 192  4.145, 7.51 r 193  4.146 r 193(2)(b)  7.51 r 194(1)  4.146

Page 73 of 135 Table of Statutes r 194(1)(b)  7.51 r 194(2)–(4)  4.146 r 195(2)  4.146 r 200  4.144 r 203  4.123 r 206  4.145 r 208  4.145 r 211(1)  15.28 r 211(1)(a)  15.41 r 211(2)  15.73 r 212(1)  15.29 r 212(2)  16.6, 16.59 r 214(1)  15.61, 15.62 r 214(1)(a)  15.57 r 214(3)  15.62 r 215  15.62 r 216  15.62 r 220  15.29 r 222  15.178 r 223(1)  15.69 r 224  15.30 r 225  15.75 r 225(2)  15.76 r 226  15.60 r 227  15.178 r 229  15.135 r 229(2)  15.101 r 230(2)  15.96 r 231  15.112 r 232  15.112 r 233  15.67 r 233(1)(a)  15.107 r 233(1)(d)  15.108 r 233(2)  15.105 r 236  15.115 r 237  15.116 r 238  15.117 rr 242–243  15.175 r 243  15.175 r 247  15.175 r 249  28.220 r 250(1)  15.225 rr 260–260G  10.107 r 260G  28.220 r 261A  15.232 r 261B  15.239 r 261C  15.233 r 261D  15.234 r 261D(1)(d)  15.263 r 261F  28.220 r 264  10.63 r 280  9.63, 11.50 r 281  9.17 r 282  5.87, 9.17 r 283  9.24 r 283(2)(a)  9.30 r 283(2)(b)  9.30 r 284  9.8, 11.50 r 285  9.24 r 285(2)  9.35

Page 74 of 135 Table of Statutes r 286  9.8, 9.24 r 290  9.43, 11.53 r 292(1)  9.90 r 292(2)  9.90 r 293  9.90 r 295  9.90 r 295(1)  8.13 r 299  9.90 r 303(1)  14.1 rr 304–306  14.17 r 304(1)  14.1, 14.6 r 307  14.12 r 308(4)  14.19 r 310  14.14 r 312  14.13 r 334(1)  29.57 r 337(1)  29.57 r 339(1)  29.57 r 341  29.57 r 343  29.57 r 344(1)  29.57 r 353(1)  27.54 r 353(3)  27.50 r 354  27.50 r 355(1)  27.52 r 355(3)  27.69 r 356  27.119 r 357(1)  27.120 r 357(3)  27.120 r 357(4)  27.120 r 358  27.82 r 358(1)  27.71 r 358(2)  27.72 r 358(3)  27.72 r 358(4)  27.73 r 360  27.96 r 360(1)(b)  27.91 r 361  27.103, 27.104 r 361(1)(a)  27.103, 27.104 r 361(1)(b)  27.91 r 363  27.53 r 364  27.53 r 365  27.75, 27.120 r 366  5.15 r 366(2)  11.23 r 367  5.15, 22.9, 22.23, 22.25, 22.74 r 367(1)  20.25, 20.40 r 367(2)  20.40 r 367(3)  20.40 r 367(3)(d)  20.25, 20.40 r 367(3)(j)  20.25, 20.40 r 368  12.12 r 371  11.5 r 374  11.44 r 375(1)  7.66 r 376(4)  7.74, 7.75 r 376(4)(b)  7.73 r 378  7.66 r 385  7.66 r 389A  25.39

Page 75 of 135 Table of Statutes r 390  20.39 r 390(a)  20.26, 22.5 r 390(b)  8.14, 20.26 r 391  11.11 r 405  28.208 r 414  22.89 r 414(1)(a)  15.150 r 414(9)  15.172 r 415(2)  15.161 r 416  15.161 r 417  15.158, 15.159 r 418  28.220 r 419(1)  15.158 r 420(2)  15.150, 15.160 r 421(1)  15.156 r 426  21.4, 21.38 r 427(2)(b)  21.4 r 428(3)(e)  21.4 r 428B  21.57 r 429B  21.53, 21.80 r 429G(1)  21.4 r 429G(2)  21.48 r 429H(6)  21.4 r 429I  21.75 r 429J  21.75 r 429M  21.50, 21.75 r 429N  21.75 r 429P  21.46 r 429R  21.4 r 429S  21.75 r 429S(1)  21.48 r 430  20.11 r 430(1)  8.14, 20.11 r 430(2)  8.14 r 452  25.30 r 466  9.2 r 467(1)  9.2 r 472  11.20, 22.1 r 476  3.74, 22.105 r 476(1)  22.111 r 476(2)  22.113 r 476(4)  22.108 r 477  22.110 r 485(b)  23.19 r 500  21.113 rr 514–516  4.41 r 529(1)  5.32 r 658  23.14 r 660  23.21 r 661(2)  23.25 r 661(4)  23.24 r 664  23.25 r 665  23.23 r 665(3)  23.23 r 666(1)  23.47 r 667  8.32, 23.33 r 667(1)(b)  23.39 r 667(2)  23.40 r 667(2)(a)  6.40 r 667(2)(b)  23.40

Page 76 of 135 Table of Statutes r 667(2)(d)  23.31 r 668  23.33, 23.40 r 671  10.143 r 681  28.13, 28.49 r 681(1)  28.205 r 682  28.13 r 683(2)  28.177 r 684  28.57 r 687(2)  28.177 r 687(2)(a)  28.57, 28.73 r 687(2)(c)  28.57 r 690  28.208, 28.261, 28.272, 28.287 r 691  28.127 r 691(1)  28.110 r 691(6)  28.127 r 695  28.29 r 697  4.40 r 698  28.26 rr 702–703  28.95, 28.104 r 702(1)  28.96, 28.99, 28.119 r 702(2)  28.99 r 703  28.104 r 703(1)  28.104 r 703(3)  28.104, 28.115, 28.118, 28.123, 28.128 r 703(3)(b)  28.129 r 704  28.104 r 705  28.154 r 705(2)  28.154 r 705(2)(b)  28.154 r 706  28.155 r 706(2)  28.155 r 708  28.152, 28.155 r 709  28.155 r 709A  28.161 r 714  28.308 r 714(e)  28.163 r 720  28.160 r 720(4)  28.160 r 722  28.155 r 732  28.167 r 734(3)  28.169 r 734(4)  28.169 r 740  28.152, 28.153 r 742(1)  28.172 r 742(3)  28.172 r 742(5)  28.172 r 743  28.104 r 743S  28.104, 28.116 r 746  25.54 r 747  25.54 r 748  25.56 r 749  25.5 r 750  25.5 r 751  25.55 r 755  25.71 r 757  25.72 r 761  25.77 r 764  25.74 r 765  25.39 r 772(1)  10.173

Page 77 of 135 Table of Statutes r 791  25.38 r 792  25.38 r 799(2)  24.14 r 800  24.7 r 811  24.82 r 813  24.21, 24.36 rr 832–837  24.33 r 840(1)  24.47 r 844  24.52 r 851  24.50 r 868(1)  24.41 r 868(2)–(6)  24.41 r 869  24.41 r 870  24.41 r 871  24.41 r 872  24.41 r 876  24.59 r 882  24.60 r 889  24.26 r 896  24.69, 24.71 r 898  24.85 r 898(1)  24.93 r 899  24.72 r 904(1)  24.84 r 904(2)  24.84 r 910  24.26 r 915  24.71 r 925(1)(a)  15.172 r 967(1)(a)  5.13 r 967(1)(b)  5.13 r 967(1)(c)  5.13 r 968  5.13 r 968(4)  5.16 r 969  5.13 r 969(5)  5.16 r 973  5.18 r 975C  5.13 r 978  5.16 r 980  3.58, 5.19, 15.155 r 981  3.58, 5.19 r 981(3)  5.19 Sch 1A  4.52 Sch 4  4.41 Dictionary  3.124 Vexatious Proceedings Act 2005  3.119 s 5  3.120 s 6(1)  3.120 s 6(4)  3.120 s 10  3.120

South Australia Acts Interpretation Act 1915 s 48  2.54

Page 78 of 135 Table of Statutes Commercial Arbitration Act 2011  29.33, 29.39 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115, 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Corporations Rules 2003  4.52 Criminal Law Consolidation Act 1935 Pt 7 Div 3  3.100 s 242  3.100 Crown Proceedings Act 1992  24.17 s 10  24.17 s 11  24.17 s 13  5.81 Defamation Act 2005  3.106 s 21  14.14 s 22  3.106 s 25(2)  3.106 District Court Act 1991 s 4  4.38 s 8  4.38 s 38  10.176 District Court Civil Rules 2006  7.56 Ch 5 Pt 2  7.13, 7.53 r 35  7.32, 7.54 r 36  7.34, 7.54 r 37  7.32, 7.34, 7.54 r 54(4)  7.66 r 54(4)(a)  7.66 r 54(5)  7.66 r 54(6)(a)  7.76 r 54(7)(a)  7.73

Page 79 of 135 Table of Statutes r 55  7.66 r 91(1)  7.54 r 91(2)  7.54 r 92  7.54 r 94  7.35 r 95  7.37 r 96  7.54 r 97  7.54 r 98(1)(b)  7.80 r 98(2)  7.14 r 98(2)(d)  7.15 r 98(6)  7.14 r 98(7)  7.14 r 98(8)  7.13 r 99(1)(a)  7.13, 7.55 r 99(1)(b)  7.13, 7.16, 7.55 r 99(2)  7.55 r 99(3)  7.55 r 100  7.26 r 100(1)(d)  7.13, 7.16 r 100(2)  7.30, 7.54 r 101  7.35 r 101(1)(a)  7.30, 7.54 r 101(3)  7.37 r 102  7.25 r 103  7.55 r 103(4)(b)  7.76 r 104  7.77 r 106  7.55 r 107  7.76 r 156  7.29 r 158  7.76 r 263(2)(f)  4.40 r 263(2)(g)  4.40 District Court Civil Supplementary Rules 2014 r 74  7.55 District Court Fast Track Rules Adoption Rules 2014 r 3  7.56 r 10(2)  7.56 r 14  7.56 r 15  7.56 Sch 1  7.56 Enforcement of Judgments Act 1991 s 4  24.20, 24.21, 24.36 s 5(1)  24.42 s 5(2)  24.42 s 5(3)  24.42 s 5(7)  24.42, 24.92 s 6  24.47 s 6(1)  24.50, 24.54 s 6(3)  24.54 s 7  24.25 s 7(2)  24.32 s 8  24.56 s 11  24.69, 24.71

Page 80 of 135 Table of Statutes s 12  24.83 s 13  24.72 s 17  24.7 Evidence Act 1929 Pt 8 Div 2  3.66 s 34A  26.82 s 67C  27.24 s 67C(1)  17.9 s 67C(2)(a)–(c)  17.47 s 67C(2)(d)  17.51 s 67C(2)(e)  17.54 s 67C(2)(g)  17.69 s 67F  15.207 s 69A  3.65 Fast Track Rules 2014 see District Court Fast Track Rules Adoption Rules 2014 Sch 1 Foreign Judgments Act 1971  26.141 Freedom of Information Act 1991 s 12  15.229 s 26  15.229 Sch 1 cl 7  15.229 Sch 1 cl 9  15.229 Juries Act 1927 s 5  11.20, 22.1 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(2)(b)(ii)  2.51 s 5(7)  2.49 s 8  2.49 Law of Property Act 1936 s 26  11.14 Legal Practitioners Act 1981  28.299 s 21(b)  28.38, 28.195 s 21(c)  28.38, 28.195 Sch 3 s 10  28.300 Sch 3 s 10(1)  28.300 Sch 3 s 10(1)(a)  28.300 Sch 3 s 10(1)(c)  28.301 Sch 3 s 12  28.300 Sch 3 s 17  28.300 Sch 3 s 18  28.302 Sch 3 s 18(1)–(2)  28.303 Sch 3 s 18(3)  28.303 Sch 3 s 18(3)–(4)  28.303 Sch 3 s 21  28.308 Sch 3 s 37  28.304 Sch 3 s 37(2)  28.304 Sch 3 s 37(3)  28.304

Page 81 of 135 Table of Statutes Sch 3 s 37(4)  28.305 Sch 3 s 39(4)  28.306 Sch 3 s 41(3)(a)  28.306 Sch 3 s 44(c)  28.306 Sch 3 s 45  28.308 Sch 3 s 46(1)  28.310 Sch 3 s 47(1)  28.310 Sch 3 s 49(2)  28.313 Sch 3 s 49(2)(a)–(b)  28.313 Sch 3 cl 1  28.189, 28.191, 28.192 Sch 3 cl 13(1)(c)  28.191 Sch 3 cl 13(1)(d)  28.191 Sch 3 cl 24  28.35 Sch 3 cl 24(2)  28.35 Sch 3 cl 25(1)  28.189 Sch 3 cl 25(2)  28.190 Sch 3 cl 25(3)  28.190 Sch 3 cl 25(5)  28.191 Sch 3 cl 26(1)  28.192 Sch 3 cl 26(2)  28.192 Sch 3 cl 26(3)  28.192 Sch 3 cl 26(4)  28.193 Sch 3 cl 26(4)(a)  28.193 Sch 3 cl 27  28.194 Sch 3 cl 27(1)  28.194 Sch 3 cl 28  28.34 Sch 3 cl 29(1)  28.35, 28.195 Sch 3 cl 29(2)  28.38, 28.195 Sch 3 cl 30  28.36 Limitation of Actions Act 1936  4.100, 26.7, 26.35, 26.38, 26.39, 26.52 Pt 2  26.16 Pts 2–5  26.13 s 4  26.13 s 21  26.47 s 25(1)  26.44 s 26  26.12 s 27  26.13 s 28  26.7 s 33  26.13 s 35  26.13 s 36  26.13 s 36(1)(a)  26.32 s 36(2)  26.13 s 37(1)  26.13 s 37(2)  26.58 s 42  26.47 s 45(1)  26.38 s 45(2)  26.36 s 45(3)  26.38 s 48  25.59 s 48(1)  25.59 s 48(3)(b)(i)  26.51 s 48(3)(b)(ii)  26.51 s 48(3a)  26.52 s 48(3b)  26.52 Magistrates Civil Court Rules 2013  28.179

Page 82 of 135 Table of Statutes

Magistrates Court Act 1991 s 3(1)  4.41 s 3(2)  7.53 s 4  4.39 s 8  4.39 ss 38–39  4.41 Magistrates Court (Civil Division) Rules 1998 r 24(1)(a)  7.53 r 24(1)(b)  7.53 r 44(2)  7.54 Magistrates Court (Civil) Rules 2013  7.56 r 24(1)(a)  7.13 r 24(1)(c)  7.66 rr 31–33  7.32 r 34  7.37 r 35  7.34 r 70  7.25 r 80(1)  7.66 r 86  7.14, 7.77 r 88  7.76 Partnership Act 1891 s 23  24.18 Real Property Act 1886 s 105  24.35 Sale of Goods Act 1895 s 26  24.30 Sheriff’s Act 1978 s 8  24.26 Supreme Court Act 1878  1.14 Supreme Court Act 1935  1.14, 28.13 s 7  25.30 s 17  25.76 s 29  10.9 s 30C  23.54 s 30C(1)  9.31 s 30C(2)  9.31 s 30C(4)(a)  23.57, 23.61 s 31  23.19 s 32  9.34 s 32(1)  23.54 s 32(2)(a)  23.57, 23.61 s 39  3.119 s 39(1)  3.120 s 39(1)(a)  3.120 s 46A  3.48

Page 83 of 135 Table of Statutes s 48  25.42 s 50  25.41, 25.42 s 50(1)  25.5 s 50(4)(a)  25.42 s 50(4)(a)(i)  25.75 s 65  29.51 s 66  29.51 s 71  21.113 s 72(1)(c)  21.4 s 82  25.40 s 114  23.54, 23.55, 23.61 s 131(1)  3.58, 5.19 s 131(2)  3.58, 5.19 s 131(3)  5.19 Supreme Court Act 1986 s 9  24.61 Supreme Court Civil Rules 2006  1.51, 7.13, 7.56, 21.4 Ch 3 Pt 4 Div 1A  5.126 Ch 3 Pt 4 Div 4  5.148 Ch 5 Pt 2  7.13, 7.53 Ch 7 Pt 2 Div 3  8.2 Ch 11  10.1 Pt 4  24.29 Pts 12–15  10.1 Div 1 Pt 12  20.11 r 3  1.51 r 4  3.124, 15.40, 15.41, 28.18, 28.262 r 10  5.15, 11.7, 11.23 r 12  1.101, 6.40, 11.5, 15.116 r 13  1.101, 11.5, 15.116, 28.208 r 13(2)  28.262, 28.287 r 13(2)(a)  28.289 r 13(2)(b)  28.289 r 13(2)(c)  28.289 r 13(3)(a)  28.288 r 13(3)(b)  28.290 r 15  25.30, 25.41 r 17  25.41 r 18  25.40 r 19  25.40 r 21  25.40 r 24.04  9.95 r 25.04  9.95 r 27.05  13.10 r 28(1)  4.54, 4.98 r 28(2)  4.98 r 29  4.98, 4.147 r 31  4.123 r 32  4.6, 15.136 r 32(1)  15.137 r 32(1)(c)  15.127 r 32(2)  15.136 r 32(3)  15.136 r 33(1)  4.21 r 33(2)  4.21 r 33(3)  4.21

Page 84 of 135 Table of Statutes r 33(4)  4.21 r 33(6)(a)  4.22 r 33(6)(b)  4.23 r 33(7)  4.23 r 34  4.98 r 34(2)  4.98 r 34(3)  4.99 r 35  7.32, 7.54 r 35(1)  4.148 r 35(2)  4.148 r 35(3)  4.150 r 35(4)  4.148 r 36  7.34, 7.54 r 36(1)  4.149 r 36(2)  4.149 r 36(3)  4.149 r 36(4)  4.150 r 36(5)  4.149 r 37  4.150, 7.32, 7.34, 7.54 r 37(2)  4.150 r 38  4.100 r 39  5.91 r 40  5.126 r 40A  5.134 r 40B(2)  5.141 r 40G  5.140 r 40G(2)  5.141 r 40G(3)  5.139 r 40G(4)  5.139 r 40H  5.144 r 41AA  5.144 r 41AE  5.116 r 41AF  5.146 r 41B  5.138 r 41C  5.148 r 41D(1)  5.149 r 41D(2)  5.149 r 41D(3)  5.149 r 41D(4)  5.149 r 41D(5)  5.149 r 41E  5.150 r 41F  5.151 r 41G  5.149 r 41H  5.151 r 41J  5.152 r 41K  5.153 r 41L  5.154, 8.32, 11.51 r 45  5.13 r 45(1)(a)(ii)  5.44 r 50(1)  5.17 r 50(1)(a)  5.13 r 51  5.16 r 53  5.18, 11.81 r 54(4)  7.66 r 54(4)(a)  7.66 r 54(5)  7.66 r 54(6)  14.19 r 54(6)(a)  7.76 r 54(7)(a)  7.73 r 55  7.66

Page 85 of 135 Table of Statutes r 58(3)(a)  5.49 r 58(3)(b)  5.49 r 58(4)(b)  5.49 r 59(2)  5.46, 6.21 r 59(3)  5.46, 6.21 r 61  15.178 r 63  5.75 r 64(1)(a)  5.68 r 64(1)(b)  5.69 r 64(2)  5.68 r 65  5.77 r 66  5.32 r 66(1)(a)  5.32 r 67(1)(a)  5.34 r 67(1)(b)  5.34 r 67(1)(c)  5.80 r 67(1)(d)  5.83 r 67(2)(a)  5.85 r 67(2)(b)  5.56, 5.85 r 68(1)  5.7, 5.33, 5.38, 5.56 r 68(2)(a)  5.39 r 68(2)(b)  5.40 r 68(2)(c)  5.83 r 68(3)(a)  5.43 r 68(3)(b)  5.40 r 68(3)(c)  5.42 r 69  5.52 r 71  5.31 r 71(6)  5.23 r 72  5.88 r 73  13.4, 13.7 r 74  13.5, 13.6, 13.10 r 78(1)  3.124 r 79  3.125 r 80  13.36 r 85  5.72 r 89  13.21 r 91(1)  7.54 r 91(2)  6.21, 7.54 r 92  7.54 r 92(2)  5.15, 6.21 r 94  7.35 r 94(2)  5.15 r 95  7.37 r 96  7.54, 7.89 r 97  7.54 r 98(1)(b)  7.80 r 98(2)  7.14 r 98(2)(d)  7.15 r 98(6)  7.14 r 98(7)  7.14 r 98(8)  7.13 r 99  13.8 r 99(1)(a)  7.13, 7.55 r 99(1)(b)  7.13, 7.16, 7.55 r 99(2)  7.55 r 99(3)  7.55 r 100  7.26 r 100(1)(a)  6.62, 7.30, 7.54 r 100(1)(d)  7.13, 7.16

Page 86 of 135 Table of Statutes r 100(1)(c)  26.7 r 100(1)(d)  26.7 r 100(2)  6.62, 7.30, 7.54 r 100(2)(b)(ii)  6.40 r 100(3)  26.7 r 100(4)  4.128 r 101  7.35 r 101(3)  7.37 r 102  7.25 r 103  7.55 r 103(4)(b)  7.76 r 104  7.77 r 104(b)  11.77, 11.81 r 106  7.55 r 107  7.76, 14.1 r 107(2)  14.17 r 107(3)  14.6 r 107(4)  14.12 r 108  14.13, 14.14 r 113  1.101 r 113(1)  1.101 r 113(2)  1.101 r 116  1.51 r 116(2)  11.44 r 117  5.15, 11.3, 11.5, 11.23, 11.44, 22.9, 22.23 , 22.74 r 117(1)  22.110 r 117(2)  11.51 r 117(2)(b)  5.91, 11.36 r 117(2)(e)  11.77, 11.81 r 117(4)  11.51 r 120(1)  9.2 r 120(4)  9.2 r 121  22.18 r 123(1)  9.64, 11.50 r 123(4)  9.64 r 130G(4)  1.69 r 130J(1)(e)  20.25 r 130J(2)(i)  20.25 r 131(1)  8.11 r 131(2)  8.7, 8.10 r 131(4)  8.12, 8.21 r 136(1)  15.31 r 136(1)(3)  15.41 r 136(1)(b)  15.31 r 136(2)  15.57, 15.59 r 136(3)  15.57, 15.59, 15.73 r 136(6)  15.31 r 136(7)  15.61 r 137(2)  15.67 r 138  15.32 r 139  15.32, 15.69 r 140(2)  15.47 r 142(1)  15.62 r 142(2)  15.62 r 142(3)  15.62 r 146  15.175 r 146(2)  28.220 r 146(3)  28.220 r 147  15.225 r 148(2)  15.232

Page 87 of 135 Table of Statutes r 148(3)  15.239 r 148(4)  15.233 r 148(5)  15.234 r 148(5)(a)  15.263 r 148(7)  28.220 r 150  15.96 r 150(2)(b)  15.96 r 151(1)(3)  15.107 r 151(2)  15.112 r 151(3)  15.108 r 151(4)  15.105, 15.115 r 152  15.117 r 156  7.29, 15.221 r 156(7)  15.222 r 156(10)  15.223 r 158  7.76, 15.224 r 160  16.6, 21.53, 21.57 rr 160–161  16.59 r 162(2)  8.14, 20.11 r 167  8.14 r 168  20.25, 20.43 r 169(3)  20.42 r 170(1)  20.43 r 172  22.89 r 172(1)(b)  15.150 r 172(5)(b)  15.155 r 172(6)  15.151 r 174  8.32, 15.161 r 175  15.156 r 175(1)  5.32 r 176(1)  15.158 r 176(4)(b)  15.150, 15.160 r 181  15.158, 15.159, 24.82, 28.220 r 182  15.172, 22.89 r 183  15.155 r 183A  5.126 r 187(1)  27.50 r 187(2)  27.54, 27.73 r 187(4)(a)  27.50 r 187(4)(b)  27.50 r 187(4)(c)  27.50 r 187(4)(d)  27.50 r 187(6)(b)  27.62, 27.79 r 187(6)(c)  27.52 r 187(6a)  27.119 r 188(4)  27.69, 28.169 r 188A(1)  27.71 r 188A(4)  27.71 r 188B  27.120 r 188B(1)(a)  27.120 r 188C(2)  27.72 r 188C(4)  27.73 r 188C(5)  27.73 r 188E(1)(a)  27.75 r 188E(1)(b)  27.75 r 188E(1)(d)  27.75 r 188E(2)(b)  27.75 r 188E(2)(d)  27.75 r 188F(1)(e)  27.50, 27.100, 27.101 r 188F(3)  27.95

Page 88 of 135 Table of Statutes r 188F(4)  27.101 r 188F(5)  27.100 r 192  14.25 r 193(b)  11.77, 11.81 r 194  10.143 r 209  20.44, 22.9, 22.23, 22.74 r 209(3)  20.44 r 210(1)  4.123 r 212  20.26, 20.42, 20.43, 22.5 r 213  21.4 r 215  15.178 r 220(3)  29.59 r 223  23.14 r 225(1)  23.23 r 225(2)  23.23 r 226  23.21 r 227  25.74 r 227(1)  23.47 r 228(1)  9.22 r 228(2)  9.8 r 229  5.87, 9.18 r 229(1)(a)  9.24 r 229(1)(b)  9.8, 11.50 r 229(1)(c)  9.24, 9.35 r 229(4)  9.31 r 230  8.32, 9.43, 11.53 r 232  9.95 r 232(2)  9.78, 9.94, 9.95 r 232(2)(b)  9.95 r 233  9.94 r 234  3.74 r 235  15.222 r 241(3)  23.25 r 241(5)  23.24 r 242  8.32, 11.51, 23.33, 23.40 r 242(1)  23.31 r 244  24.85 r 246(3)  8.32 r 246(4)  10.63 r 247  10.107 r 247(8)  28.220 r 255(3)  24.84 r 257  3.126 r 260  23.29 r 263(1)  28.49 r 263(2)(a)  28.29 r 263(2)(f)  4.40 r 263(2)(g)  4.40 r 264(2)  28.96, 28.100, 28.119, 28.127 r 264(5)  28.104 r 264(5)(a)  28.105 r 264(5)(b)  28.112, 28.114 r 264(5)(c)  28.57, 28.73, 28.177 r 268  28.26 r 271(1A)  28.152 r 271(2)  28.154 r 271(3)  28.163 r 271(4)  28.155 r 271(5)  28.155 r 271(6)(c)  28.165

Page 89 of 135 Table of Statutes r 273(2)  28.155 r 274(2)(b)  28.160 r 274(4)  28.163 r 275  28.161 rr 276–279  28.152 r 277  28.152 r 278(1)–(2)  28.171 r 278(4)  28.171 r 278(5)  28.171 r 279  28.153 r 280  25.42 r 280(1)  25.41 r 281  25.56 r 282  25.54 r 282(1)  25.54 r 283  25.5 r 285  25.71 r 285(4)  25.72 r 286  25.41, 25.42 r 286(1)  25.14, 25.41 r 287  25.73 r 288  25.42 r 288(1)  25.19 r 292(3)  25.41 r 292(5)  25.41 r 294  25.55 r 295  25.57 r 295(1)(g)  10.173 r 300  25.77 r 306(6)(b)  24.87 r 316(6)  24.14 r 316(8)  24.16 r 347  5.126 r 364  11.23 r 364(1)(c)  22.105 Sch 1  28.243 Sch 1 items 9–13  28.243 Sch 2  28.127 Supreme Court Civil Supplementary Rules 2014 Ch 3 Pt 2  4.24 r 9  4.24 r 20(6)(a)  21.4 r 35  4.99 r 36(1)  4.148 r 36(2)  4.148 r 37  4.149 r 38  4.150 r 46  4.58 r 56(1)  6.21 rr 107–136  15.90 r 156  21.4 r 156(1)  21.38 r 160  21.38 r 169  20.25, 20.45 r 170(1)  20.45 r 172  20.45 Sch 1  7.56 Sch 3  8.11

Page 90 of 135 Table of Statutes Sch 3, Forms 4–6  4.99

Tasmania Alternative Dispute Resolution Act 2001  29.51 Building and Construction Industry Security of Payment Act 2009 Pt 5  29.4 Commercial Arbitration Act 2011  29.33, 29.39 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115, 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Conveyancing and Law of Property Act 1884 s 36  11.14 Criminal Code Act 1924 Pt III Ch X  3.100 s 94  3.100 s 95  3.100 Crown Proceedings Act 1993  24.17 s 11  24.17 s 12  24.17 s 13  5.81 Debtors Act 1897 s 4(1)  24.43 s 4(5)  24.43 Defamation Act 2005  3.106 s 20A(1)  26.13 s 23  14.14

Page 91 of 135 Table of Statutes s 24  3.106 s 27(2)  3.106 Evidence Act 2001  15.220, 16.4, 17.5, 17.7, 17.10, 17.23, 17.24 , 17.79, 21.6, 21.12, 21.14, 21.21, 21.36 Pt 3.2  16.77 Pt 3.10 Div 1A  15.207 Pt 3.10 Div 3  17.10 Pt 4.6 Div 1  19.19 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  8.14, 20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10 s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 92  26.82 s 117  16.6 s 118  16.3, 16.26, 17.7 s 118(c)  16.6, 16.20, 16.41, 16.56 s 119  16.3, 16.42, 16.56, 17.7 ss 119–120  16.64 s 119(b)  16.55, 16.56 s 119(c)  16.6 s 120  16.6, 16.16 s 121(2)  16.6, 16.82 s 122  16.6 s 122(2)  16.99, 16.100 s 122(5)  16.106, 16.107 s 122(5)(a)(i)  16.107 s 122(5)(c)  16.6, 16.87 s 124  16.6, 16.84 s 125(1)  16.6, 16.79

Page 92 of 135 Table of Statutes s 126  16.109 s 126A(1)  15.207, 15.208 s 126B(3)  15.208 s 126B(4)  15.208 s 126B(4)(f)  15.208 s 126J  15.218 s 126K(1)  15.217 s 126K(2)  15.219 s 127(1)  15.220 s 127(4)  15.220 s 127A  15.207 s 128(1)  18.6 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.33, 27.24 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85, 27.24 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.44 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 131A  15.207, 16.4, 19.19 s 131A(1)  17.8 s 135  20.73, 22.66 ss 135–136  20.73, 21.36, 21.41 s 136  20.73 s 137  21.36, 21.41 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 s 169  15.225 s 187  18.8 s 191  22.14 ss 194J–194L  3.66 s 195  3.66 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Land Titles Act 1980 s 61  24.35

Page 93 of 135 Table of Statutes

Legal Procedure Act 1903  1.14 Legal Profession Act 2007  28.299 s 283  28.189, 28.191, 28.192 s 291  28.300, 28.301 s 293  28.300 s 294(1)  28.300 s 295(1)  28.300 s 295(1)(c)  28.191 s 295(1)(d)  28.191 s 299  28.300, 28.302 s 300(1)–(2)  28.303 s 300(3)  28.303 s 300(3)–(4)  28.303 s 303  28.38, 28.195, 28.310 s 306  28.35 s 306(2)  28.35 s 307(1)  28.189 s 307(2)  28.190 s 307(3)  28.190 s 307(5)  28.191 s 308(1)  28.192 s 308(2)  28.192 s 308(3)  28.192 s 308(4)  28.193 s 308(4)(a)  28.193 s 309  28.194 s 309(1)  28.194 s 310  28.34 s 311(1)  28.35, 28.195 s 311(2)  28.38, 28.195 s 312  28.36 s 319(1)–(2)  28.304 s 319(3)  28.304 s 319(4)  28.304 s 319(5)  28.304 s 319(6)  28.304 s 321(4)  28.306 s 322(2)  28.307 s 322(3)  28.307 s 324  28.308 s 326(1)  28.308 s 327  28.310 s 329  28.310 s 331  28.308 s 331(1)  28.313 s 331(2)(b)  28.313 s 331(5)  28.313 s 333(1)  28.312 s 335  28.312 s 336  28.312 s 518  28.295 Limitation Act 1974  26.7, 26.35, 26.37, 26.39 Pt 2  26.13 Pt 2 Div 3  26.16 s 2  26.25 s 2(2)  26.36

Page 94 of 135 Table of Statutes s 2(3)  26.36 s 4  26.13 s 5A  26.13 s 5A(2)  26.13 s 5A(3)  26.25 s 5A(3)(b)  26.26, 26.54 s 5A(5)  26.26, 26.54 s 6  26.7 s 8  26.50 s 10  26.13 s 13(2)  26.7 s 13(3)  26.7 s 18  26.13 s 20A(2)  26.58 s 21  26.7 s 25D(5)  26.7 s 26  26.37 s 27  26.13 s 29  26.47 s 32  26.41 s 36  26.12 s 38  26.11 Magistrates Court Act 1987 s 3A  4.39 s 3B  4.39 Magistrates Court (Civil Division) Act 1992 s 3  4.41 s 4  4.39 ss 7–11  4.39 s 11  4.40 ss 31AA–31AG  4.41 Magistrates Court (Civil Division) Rules 1998 r 29  7.58 r 44(1)  7.8, 7.58 r 44(2)  7.37 r 44(2)–(4)  7.58 r 45  7.66 r 46(1)  7.8, 7.25 r 46(2)  7.25 r 47(1)  7.29 r 48  7.58 r 49  7.58 r 50  7.32, 7.58 r 51  7.58 r 52  7.34, 7.58 r 53(1)  7.58 Partnership Act 1891 s 28  24.18 Right to Information Act 2000 s 7  15.229 s 35  15.229

Page 95 of 135 Table of Statutes s 36  15.229 s 37  15.229 Sale of Goods Act 1896 s 31  24.30 Supreme Court Civil Procedure Act 1932  1.14 s 10(5)  14.25 s 11(12)  10.9, 24.61 s 12  28.13 s 12(1)  28.112 s 12(2)  28.205 s 12(3)  28.104, 28.105 s 13  4.40 s 29  22.1 ss 34–35  23.54 s 34(1)  9.32 s 40(1)  25.5 ss 40–41  25.44 s 43  25.44 s 43(a)  25.75 s 46  25.44 s 47  25.76 s 48  25.44 s 165  23.54, 23.55, 23.61 s 166  24.56, 24.59 s 191B  25.43 s 194G  3.119 s 194G(1)  3.120 s 194G(2)  3.120 s 194G(3)  3.120 Supreme Court (Corporations) Rules 2008 r 4  4.52 Supreme Court Forms Rules 2000 Sch 1 Pt 2 Form 37  15.150, 15.160 Supreme Court Rules 2000  7.13, 27.112 Pt 7 Div 1  4.58 Pt 7 Div 16  24.29 Pt 8  27.16 Pt 12  7.76 Pt 13 Div 1A  15.34 Pts 16–18  10.1 Pt 20  29.51 Pt 21  8.2 Pt 32 Div 7  5.126 Pt 35 Div 2  24.20 Pt 35 Div 4  24.25 Pt 38A  5.148 Div 2A  5.13 Div 4 Pt 19  20.11 Div 14  7.32 Div 15  7.34, 7.57

Page 96 of 135 Table of Statutes Div 17  7.13 Div 18  7.15, 7.57 Div 18A  7.57 r 5  3.124, 4.54, 4.101 r 5A(2)  23.59 r 5A(3)  23.61 r 9  11.23 r 13  11.5 r 14  11.5 r 15  4.101 r 18(2)  5.16 r 29(2)  15.155 r 33  3.58, 5.19 r 33(4)  3.58 rr 43–45  24.26 r 49  5.31 r 52  5.15, 5.91, 11.5, 11.36, 25.57 r 60  28.208, 28.260, 28.287 rr 60–61  28.260, 28.289 r 61  28.208, 28.260 r 61(2)  28.290 r 61(3)  28.290 r 63.33  28.152 r 63.47  28.155 r 67  28.26 r 82A  5.18, 7.14 r 83(1)(a)  5.13 r 83(1)(b)  5.13 r 83(1)(c)  5.13 r 83(4)(a)  5.16 r 83(5)–(9)  5.13 r 83(7)  5.17 r 83(7)(a)  5.16 r 84  5.13 r 87E(1)  5.17 r 87E(2)(a)  5.16 r 87F(1)  5.43 r 87F(2)  5.31 r 88  4.54, 4.101 r 89  4.101 r 90  4.101 r 92  4.101 r 95  4.101 r 97  4.102 r 98  6.23, 9.19 r 99  6.23, 9.19 r 100  4.102 r 101  4.102, 5.46 r 103  23.19 r 104  4.102 r 105  4.104 r 106  4.104 r 107  4.104, 5.91 r 108(1)(a)  4.103 r 108(1)(b)  4.103 r 108(2)  4.103 r 108(3)  4.103 r 110  4.103 r 111  4.103 r 112  4.103

Page 97 of 135 Table of Statutes r 113  4.103 r 114  4.103 r 115  4.103 r 116  4.103 r 118  4.102 r 119  4.105 r 120  4.105 r 121  4.105 r 123  4.105 r 125  6.1 r 128  4.102 r 128(1)  5.46, 5.47 r 128(2)  5.46, 5.49 r 128(3)  5.46, 5.47 r 128(4)  5.46, 5.49 r 128(5)(a)  5.49 r 132  5.35 r 133  5.32 r 134  5.80 r 135(a)  5.34 r 136  5.75 r 139  5.77 r 141  5.52 r 142  23.29 r 143  5.88 r 144(1)(a)  5.31, 5.39 r 144(1)(b)  5.40 r 144(1)(c)  5.40, 5.42, 5.43 r 144(3)  5.31 r 146  5.57 r 146A  5.57 r 146B  5.56 r 147(3)  5.126 r 147A  5.134 r 147B  5.136 rr 148–151  5.146 r 151(b)  7.15 r 154  9.19 r 154(1)  6.23 r 154(3)  6.23 r 157(4)  6.24 r 157(5)  6.24 r 159  5.46, 6.24 r 160  5.46 r 167  6.58 r 168(1)  6.58 r 168(3)  6.58 r 168(4)  6.58 r 168(5)  6.58 r 169  13.8 r 176  13.7 r 179  4.123, 13.4, 13.5, 13.6 r 184  13.10, 13.27, 25.5 r 192  4.128, 7.57 r 192(1)  4.151 r 192(2)  4.151 r 192(5)  4.151 r 192(6)  4.151 r 192(7)  4.151 r 192(8)  4.151

Page 98 of 135 Table of Statutes r 192(9)  4.151 r 193  4.151 r 195  4.151, 7.57 r 196  4.151 r 197  7.57 r 198  4.123 r 202  4.152 r 202(1)  7.57 r 202(2)  7.57 r 203(1)  4.152 r 203(2)  4.152 r 203(3)  4.152 r 208  4.123 r 211(1)  4.153 r 211(2)  4.153 r 216  14.25 r 226(c)  7.80 r 227(3)  7.15 r 227(4) …… 7.13 r 228  7.37, 7.57 r 230  7.14 r 231  7.8, 7.24 r 235  11.53 r 236(1)  7.13 r 238  7.15, 7.22 r 240(1)  23.47 r 243  7.26 r 249  7.13 r 251(a)  26.7 r 253(1)  7.25 r 253(2)  7.8, 7.25 r 253A  7.57 r 255  7.37 r 256(2)  7.57 r 258  7.14, 7.77 r 259  7.14, 7.77 r 265(3)  9.65, 11.50 r 266  5.15, 9.19 r 266(1)  7.57 r 267  5.15, 7.35, 7.57 r 268(2)(a)  27.17 r 268(2)(b)  27.17 r 269(1)  27.17 r 269(2)–(4)  27.17 r 269(5)  27.17 r 269(6)  27.17 r 276  27.17 r 280(3)  27.54 r 280(4)  27.54 r 280(6)  27.50 r 280(7)  27.52 r 281(a)  27.50 r 281(b)(iv)  27.50 r 281(c)  27.60 r 281(d)  27.50 r 283(1)  27.71 r 283(2)  27.69 r 283(3)  27.72 r 284  27.82 r 284(3)  27.72

Page 99 of 135 Table of Statutes r 285  27.119 r 286(1)  27.120 r 286(2)  27.120 r 288(1)(a)  27.75 r 288(1)(b)  27.75 r 288(1)(c)  27.75 r 288(2)  27.75 r 288(3)  27.75 r 288(4)  23.33, 23.40, 27.75 r 289(1)  27.96 r 289(2)  27.103 r 289(3)  27.91 r 289(4)  27.92 r 290  27.53 r 291  27.53 r 292(1)  3.124 r 292(3)  3.125 r 299  3.126 r 310(1)(a)  5.68 r 310(1)(b)  5.69 r 310(2)  5.68 r 310(3)  5.68 r 310(4)  5.69 r 310(5)  5.69 r 314  5.72 r 335  13.36 r 340  25.74 r 341(5)  23.47 r 342  9.19 r 346(1)  5.87, 9.19 r 346(2)  9.19 r 347  9.24 r 347(1)(a)  9.32 r 347(1)(b)  9.32 r 347(2)  9.32 r 348  9.8, 11.50 r 349  9.24, 9.35 r 350  9.24 r 353  9.8 r 355  9.43, 23.33, 23.40 r 356(1)  9.87 r 356(1)(a)  9.78 r 356(1)(b)  9.84 r 356(2)  9.84 r 357  8.13 r 357(1)  9.84 r 357(1)(b)(ii)  9.84 r 366  8.32, 23.33, 23.40 r 367(1)  9.84 r 367(2)  9.78 r 371  9.65 r 372  11.44, 15.76 r 374  8.32, 23.33, 23.40 r 376(1)  14.1, 14.6 r 376(2)  14.17, 14.19 r 377(1)  14.1 r 378  14.12 r 379  14.14 r 380  14.13 r 381  15.40

Page 100 of 135 Table of Statutes r 382  15.41 r 382(1)  15.34, 15.73 r 382(1)(b)  15.52 r 382(2)  15.34 r 382(3)  15.54 r 383(1)  15.33 r 383(4)  15.33 r 383(6)  15.33 r 384  15.59 r 384(1)(a)  15.57 r 384(2)  15.61 r 386  15.67 r 388  15.69 r 390(1)(a)  15.62 r 390(1)(b)  15.62 r 391  15.179 r 391(1)  15.178 r 396  15.34, 15.75 r 397  11.51 r 399  7.29, 15.221 r 399(2)  15.222 r 400  15.178 r 401  15.221 r 401(2)  15.222, 15.223 r 401(4)  15.224 r 403  15.222 r 403C  15.127 r 403C(1)(a)  15.129 r 403E  15.137 r 403FA  15.173 r 403G  28.220 r 405  15.96 r 406(4)(b)  15.103 r 408A  15.97 r 409  15.112 r 409(1)  15.112 r 409(1)(b)  15.105 r 409(3)  15.105, 15.108, 15.109 r 410  15.115 r 411  15.116 r 413  15.117 r 414A  1.52, 9.2 r 415  1.52, 5.15, 20.48, 22.9, 22.23, 22.74 r 415(2)–(4)  11.3 r 415(3)  1.52, 20.25, 21.4 r 415(4)  1.52 r 415(4A)  21.4 r 415(4A)(g)  20.25 r 416  9.2 r 426  11.51 r 427  7.66 r 427(2A)  7.73 rr 428–430  7.66 r 434  7.66 r 435  23.31 r 437  15.225 r 445  10.63 r 458  20.46 r 458(a)  20.26, 22.5 r 458(c)  8.14, 20.26

Page 101 of 135 Table of Statutes r 459  20.25, 20.47, 22.89 r 459(3)  20.47 r 459(4)  20.47 r 459(4A)(a)  20.48 r 459(4A)(g)  20.48 r 491  28.208 r 492  28.208 r 495(1)(b)  15.150 r 497  8.32, 15.161, 23.33, 23.40 r 498  15.156 r 498(1)  5.32 r 499  15.158 r 500D  15.159, 24.82, 28.220 r 500E  15.172, 22.89 r 500E(2)  15.156 r 500F  15.155 r 502  20.11 r 502(1)  8.14 r 514  21.4, 21.38 r 515  21.4, 21.48, 21.50 r 515(1)(b)  21.4 r 516  21.4 r 516(1)(b)  21.38 r 525(1)(a)  8.11 r 529  8.7, 8.10 r 530(2)  8.21 r 530(3)  6.40, 23.33, 23.40 r 541  9.2 r 544  15.34 r 545  15.34 r 550  22.9, 22.23, 22.74 r 557  11.20 r 560  21.113 r 563  23.33, 23.40 r 569(1)  22.25 r 569(2)  22.26 r 569(5)  22.30 r 570  3.74, 22.105 r 570(1)(a)  22.111 r 570(1)(b)  22.113 r 570(2)  22.108, 23.33, 23.40 r 571  22.110 r 573(1)(a)  23.14 rr 657–680  25.44 r 657(1)  25.14 r 659  25.56 r 660  25.54 r 664  25.71 r 664(3)  25.72 r 671  10.173 r 672  25.5 r 672(3)  25.55 r 675  25.73 r 676  25.77 r 685  25.54 r 806  23.14 r 807  23.21 r 810  23.23 r 810(2)  23.23 r 812(1)  23.24

Page 102 of 135 Table of Statutes r 813  23.25 r 828  10.143 r 837(1)  28.127 r 839(a)  28.57, 28.73 r 839(c)  28.57, 28.177 r 844  28.153 r 846(c)  28.163 r 847  28.154 r 848  28.154 r 850(1)  28.155 r 850(4)  28.169 r 850A  28.155 r 855(2)  28.161 r 856  28.161 r 857(2)  28.162 r 859  28.99 r 865  28.167 r 865(b)  28.167 r 866(3)  28.165 r 867(1)  28.170 r 867(2)  28.170 r 867(5)(b)  28.170 r 867(5)(d)  28.170 r 867(6)  28.170 r 868(1)  28.170 r 874  24.69 r 876  24.83 r 876(1)(a)  24.93 r 876(3)  24.85 r 877  24.72 r 883(1)(a)  24.84 r 887  24.7 r 889  24.21, 24.36 r 896  24.14 r 901(1)  24.16 r 912  24.47, 24.54 r 913  24.54 r 914  24.47, 24.54 r 921  24.55 r 937  24.60 rr 937A–937H  10.107 r 937H  28.220 r 937J  15.232 r 937K  15.239 r 937L  15.233 r 937M  15.234 r 937M(1)(d)  15.263 r 937O  28.220 r 944  24.26 r 945  24.71 rr 962–964  25.43 r 970C  5.148 r 970D(1)  5.149 r 970D(2)  5.149 r 970D(3)  5.149 r 970D(4)  5.149 r 970D(5)  5.149 r 970E  5.150 r 970F  5.151 r 970G  5.149

Page 103 of 135 Table of Statutes r 970H  5.151 r 970J  5.152 r 970K  5.153 r 970L  5.154 Sch 1  8.11, 28.243

Victoria Building and Construction Industry Security of Payment Act 2002 Pt 3 Div 2  29.4 Civil Procedure Act 2010  1.53, 3.128, 20.27, 28.143, 28.270 Pt 2.3  7.16 s 1(1)(c)  1.54 s 7  3.128, 8.5, 20.51 s 7(1)  1.53 s 8  11.3 s 8(1)  1.53 s 9  1.53, 1.69, 11.3 s 10  1.99 ss 10–12  28.197 s 10(d)  28.197 s 16  1.99 ss 16–26  1.99 ss 16–27  28.197 s 20  1.106 s 23 … 1.106 s 24  8.5, 28.209, 28.141, 28.142 s 25  8.5 s 26  15.35, 15.83 s 28  28.7 s 29  14.25, 28.7, 28.150 s 41(1)  4.25 s 41(2)  4.25 ss 41(3)–(5)  4.25 s 42  7.29, 7.60 s 42(1)  4.26, 7.82 s 42(1A)  4.26, 7.82 s 42(1B)  4.26, 7.82 s 42(2)  4.26, 7.82 s 42(3)  4.26, 7.82 s 42(4)  4.26, 7.82 s 44  4.25 s 45  4.27 s 46  4.27 s 47  22.23, 22.25 s 48  22.23, 22.25 s 49  20.51 s 49(1)  20.25, 20.51 s 49(3)(j)  20.25, 20.51 s 54  15.36 s 55  15.37 s 55(2)(a)  15.37 s 55(2)(b)  15.37 s 55(2)(c)  15.37 s 55(2)(d)  15.37 s 55(2)(f)  15.37

Page 104 of 135 Table of Statutes s 55A  15.37 s 56(2)(j)  15.76 s 57  15.68 s 61  9.78, 9.88 s 62  9.78, 9.88 s 63  9.88 s 64  9.88 s 65C(2)(b)  28.57, 28.73 s 65C(2)(c)  28.57 s 65C(2)(d)  28.234 s 65F  21.4 s 65F(c)  21.4 s 65G  21.4, 21.48 s 65H  21.4, 21.50 s 65H(1)(f)(i)  21.4 s 65H(2)(f)(i)  21.65 s 65H(2)(f)(ii)  21.75 s 65H(2)(g)  21.46 s 65I  21.53, 21.57 s 65J  21.53 s 65L  21.4, 21.65 s 65M  21.75 s 65N  21.65, 21.75 s 232A  21.80 Commercial Arbitration Act 2011  29.33, 29.39 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 County Court Civil Procedure Rules 2008 O 10  7.32, 7.59 O 11  7.34, 7.59 O 13  7.13, 7.59 O 14  7.59 O 15  7.59 O 25  7.76 r 5.04  7.59

Page 105 of 135 Table of Statutes r 11.01  7.59 rr 11.04–11.07  7.59 r 13.01(3)  7.80 r 13.02(1)(b)  7.16 r 13.02(2)  7.13 r 13.04  7.13 r 13.05  7.13 r 13.07  7.60 r 13.07(1)(b)  7.15 r 13.09  7.14 r 13.10  7.5, 7.19, 7.60 r 13.10(2)(c)  7.15 r 13.10(3)  7.15, 7.22 r 13.11  7.25 r 13.11(3)  7.8, 7.25 r 13.12  7.26 r 13.13  7.37 r 14.01  7.59 r 14.02  7.59 r 14.03(2)  7.73 r 14.04  7.59 r 14.05  7.35, 7.37, 7.59 r 14.06  7.59 r 14.07  7.59 r 14.09(c)  7.89 r 23.02  7.14, 7.77 r 25.02(5)  7.76 r 35.03  7.29 r 36.01  7.66 r 36.03  7.66 r 36.04  7.66 r 36.06  7.66 r 63A.24  4.40 r 63A.25  4.40 Crimes Act 1958 Pt 1 Div 5  3.100 s 4  4.38 s 37  4.38 s 254  15.77, 15.235 s 314  3.100 Crimes (Document Destruction) Act 2006  15.77, 15.235 Crown Proceedings Act 1958  24.17 ss 14–16  24.17 s 26  24.17 Defamation Act 2005  3.106 s 23  14.14 s 24  3.106 s 27(2)  3.106 Electronic Transactions (Victoria) Act 2000 s 13  5.31

Page 106 of 135 Table of Statutes Evidence Act 2008  15.220, 16.4, 17.5, 17.7, 17.10, 17.23, 17.24 , 17.79, 21.6, 21.12, 21.14, 21.21, 21.36 Pt 3.2  16.77 Pt 3.10 Div 1C  15.217 Pt 3.10 Div 3  17.10 Pt 4.6 Div 1  19.19 s 11(2)  17.77 s 12  22.86 s 13(1)  22.87 s 13(5)  22.87 s 13(6)  22.88 s 13(8)  22.88 s 16(2)  22.89 s 21  22.97 s 37  22.97 s 38  22.101 s 39  22.103 s 42  22.101 s 46  22.102 s 55(1)  22.67 s 56(2)  22.67 s 59  20.72, 22.94 s 60  22.95 s 63  20.73, 22.95 s 64  20.73, 22.95 s 66A  22.95 s 67  22.96 s 69  22.95 s 75  22.95 s 76  22.91 s 76(1)  21.5 ss 77–79  22.91 s 78  22.91 s 78(1)  21.6 s 79  21.21 s 79(1)  21.10 s 80  21.14, 21.17, 21.21 s 80(a)  21.12 s 80(b)  21.12 s 91(1)  26.81 s 92  26.82 s 117  16.6 s 118  16.3, 16.26, 17.7 s 118(c)  16.6, 16.20, 16.41, 16.56, 16.74 s 119  16.3, 16.42, 16.56, 17.7 ss 119–120  16.64 s 119(b)  16.55, 16.56 s 119(c)  16.6, 16.74 s 120  16.6, 16.16 s 121(2)  16.6, 16.82 s 122  16.6 s 122(1)  16.98 s 122(2)  16.99, 16.100 s 122(5)  16.106, 16.107 s 122(5)(a)(i)  16.107 s 122(5)(c)  16.6, 16.87 s 124  16.6, 16.84 s 125  16.77 s 125(1)  16.6, 16.79 s 126  16.109 s 126J  15.218

Page 107 of 135 Table of Statutes s 126K  3.109 s 126K(1)  15.217 s 126K(2)  15.219 s 126J(2)  15.218 s 127(1)  15.220 s 127(4)  15.220 s 128  18.24, 18.26, 18.27, 18.28 s 128(1)  18.6, 18.24, 18.26 s 128(2)  18.24 s 128(5)  18.26 s 128A  18.28, 18.29 s 128A(1)–(12)  18.28 s 130(1)  19.17 s 130(2)  19.19 s 130(3)  19.19 s 130(4)  19.17, 19.18 s 130(5)  19.26 s 131  17.6, 17.10 s 131(1)  17.5, 17.7, 17.8, 17.23, 17.24, 17.33, 27.24 s 131(2)  17.50 s 131(2)(a)–(c)  17.47 s 131(2)(b)  17.51 s 131(2)(d)  17.51 s 131(2)(f)  17.54 s 131(2)(g)  17.59, 17.62 s 131(2)(h)  17.65, 17.67, 17.85, 27.24 s 131(2)(i)  17.69 s 131(2)(j)  17.72, 17.77, 17.86 s 131(2)(k)  17.73, 17.77 s 131(3)  17.78 s 131(3)(a)  17.23 s 131(4)  17.78 s 131(5)(a)  17.6 s 131(5)(b)  17.6 s 131A  15.220, 16.4, 19.19 s 131A(1)  17.8 s 135  20.73, 21.36, 21.41, 22.66 ss 135–136  20.73 s 136  20.73 s 137  21.36, 21.41 s 138  22.70, 22.72 s 138(3)  22.70 s 140(1)  22.44 s 144  22.78 s 169  15.225 s 187  18.8 s 191  22.14 Evidence (Miscellaneous Provisions) Act 1958 s 28  15.207 Freedom of Information Act 1982 s 13  15.229 s 30  15.229 s 33  15.229 s 34  15.229 Goods Act 1958

Page 108 of 135 Table of Statutes s 82  24.30 Health Records Act 2001  15.209 Instruments Act 1958 s 126  11.14 Judgment Debt Recovery Act 1984 s 5  24.44 s 6(1)  24.44 s 6(2)  24.44 s 6(3)  24.44 s 7(1)  24.44 s 8(2)  24.44 s 9  24.44 s 13  24.45 s 17(1)  24.45 s 18  24.45 s 19  24.45 s 19(1)  24.45 s 19(3)  24.45 Judicature Act 1883  1.14 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Legal Profession Uniform Law see Legal Profession Uniform Law Application Act 2014 Sch 1 Legal Profession Uniform Law Application Act 2014 Sch 1  28.189, 28.299 s 6  28.192 s 170  28.35, 28.191 s 170(1)  28.191 s 170(2)  28.191 s 172  28.6, 28.37 s 172(1)  28.311 s 172(4)  28.311 s 174  28.300 s 174(1)  28.300 s 174(1)(b)  28.300, 28.302 s 174(2)  28.301 s 178(1)  28.35, 28.38, 28.195 s 178(1)(a)  28.39 s 178(b)–(c)  28.303 s 180  28.35 s 180(2)  28.35 s 181(2)–(4)  28.190 s 181(6)  28.192 s 181(7)  28.190 s 182(1)  28.192 s 182(2)  28.193 s 182(2)(a)  28.193 s 182(3)  28.192 s 183  28.194

Page 109 of 135 Table of Statutes s 183(1)  28.194 s 184  28.34 s 185  28.38 s 185(1)  28.35, 28.195, 28.303 s 185(2)  28.303 ss 185(2)–(4)  28.195 s 194(1)  28.306 s 196  28.137 s 198  28.304 s 198(1)  28.304 s 199(2)  28.6 s 198(3)  28.305 s 198(4)  28.305 s 198(7)(b)  28.306 s 198(8)  28.308 s 199  28.311 s 200  28.6, 28.311 s 204(1)  28.313 s 204(2)  28.313 s 321  28.295 Limitation of Actions Act 1958 Pt 1  26.13 Pt 1 Div 3  26.16 Div 5  26.13 s 3(2)  26.36 s 3(3)  26.36 s 5  26.13 s 5(1AAA)  26.13 s 6(2)  26.7 s 8  26.13 s 11(2)  26.7 s 11(3)  26.7 s 15  26.13 s 18  26.7 s 20  26.13 s 23  26.37 s 23B(2)  26.58 s 24  26.47 s 27  26.41 s 27D  26.13, 26.25 s 27D(1)  26.55 s 27D(1)(b)  26.26 s 27E  26.55 s 27F  26.25 s 27K  26.26 s 27L  26.55 s 31  26.12 s 33  26.11 s 34  7.71, 7.73 Magistrates’ Court Act 1989 Pt 5 Div 1  4.39 s 4  4.39 s 100(1)(c)  4.40 s 100(2A)  4.40 s 102  12.22 s 103  12.23

Page 110 of 135 Table of Statutes s 105  12.24 Magistrates’ Court General Civil Procedure Rules 2010  7.37 O 2  12.22 O 5  7.61 O 8  7.59 O 9  7.61 O 10  7.32, 7.59 O 11  7.34, 7.59, 7.61 O 13  7.13, 7.59, 7.61 O 25  7.76 r 2.04  12.22 r 2.05  12.22 r 5.02(3)  7.61 r 8.01  7.61 r 8.03(2)(b)  7.61 r 10.02  7.61 r 10.03  7.61 r 10.04(2)  7.61 r 11.01  7.61 r 11.02  7.61 r 11.05(2)(a)  7.61 r 11.07(1)  7.61 r 13.01(1)(c)  7.16 r 13.02  7.26 r 13.02(5)(b)  7.15 r 13.03  7.35 r 13.03(1)(b)  7.15 r 13.04  7.14 r 13.05  7.8, 7.25 r 13.06  7.8, 7.25 r 13.10  7.25 r 23.02  7.14, 7.77 r 35.03  7.29 r 36.01  7.66 r 36.07  7.66 Open Courts Act 2013  3.66, 15.204 s 4  3.48 Partnership Act 1958 s 27(1)  24.18 Penalty Interest Rates Act 1983 s 2  23.59, 23.61 Property Law Act 1958 s 184  22.59 Sheriff Act 2009 s 13  24.26 s 32(1)  24.26 Supreme Court Act 1986  1.14 Pt 4A  13.39

Page 111 of 135 Table of Statutes s 10  25.5, 25.47 s 14  25.76 s 14A  25.47, 25.63, 25.75 s 14C  25.47, 25.66 s 14D  25.47 s 17(2)  25.47 s 17(3)  25.46 s 17A(4)(b)  25.19 s 17H  25.45 s 17HA  25.45 s 17I  25.45 s 24  28.13 s 24(1)  28.205 s 29  13.1 s 30  14.25 s 36  23.19 s 37  10.9, 24.61 s 42(1)  24.32 s 58  23.54, 23.59 ss 58–60  23.54 s 59  23.59 s 60  23.54, 23.59 s 60(2)(a)  23.57, 23.61 s 77  21.113 s 101  23.54, 23.55, 23.61 s 113C(1)  25.30 s 113L  25.30 s 113M  25.45 Supreme Court (Administration and Probate) Rules 2014 r 1.05  12.11 Supreme Court (Corporations) Rules 2013  4.52 Supreme Court (General Civil Procedure) Rules 2015  1.54, 12.11, 28.273 O 5  7.59 O 7A  5.126 O 10  7.32, 7.59 O 11  7.34, 7.59 O 12  24.29 O 13  7.13, 7.59 O 14  7.59 O 17.03(1)(b)  5.69 O 17.03(3)  5.68 O 17.03(4)  5.69 O 22 r 22.03  9.88 O 22 r 22.16  9.88 O 25  7.76 O 28 Pt 2  5.13 O 28A  5.13 Os 37–38  10.1 O 37A  10.107 O 42 r 4  15.156 O 43  20.11 O 46  8.2 O 50  29.51 O 53  4.110 O 56  4.110

Page 112 of 135 Table of Statutes O 67  24.20 O 68 r 5(2)  24.16 O 69  24.25 O 71  24.47 O 72  24.47, 24.55 O 80  5.148 Pt 8 of O 63  28.156 Pt 29  15.36 Pt 31  15.120 r 1.12  4.106 r 1.14  1.54 r 1.15  1.54 r 2.01  11.5 r 2.02  4.106 r 2.04  8.21 r 3.01  4.109 r 3.02  4.109, 5.15, 5.91, 11.5, 11.36 r 3.04  4.109 r 4.01  4.106 r 4.04(1)  4.106 r 4.05(1)  4.106 r 4.06  4.106 r 4.07(1)  4.106 r 4.08  10.1 r 4.09  4.25 r 4.10(2)  4.26, 7.82 r 5.02  4.107 r 5.03  4.110 r 5.03(2)  4.110 r 5.03(3)  4.110 r 5.04  7.59 r 5.04(2)(a)  4.113 r 5.04(2)(b)  4.113 r 5.04(3)  4.113 r 5.05  4.113 r 5.06  4.111 r 5.07(1)  5.46 r 5.07(1)(a)  4.111, 5.49 r 5.07(1)(b)  4.111 r 5.07(1)(c)  4.111, 5.49 r 5.07(1)(d)  4.111 r 5.08(1)  4.112 r 5.08(2)  4.112 r 5.08(3)  4.112 r 5.09(1)  4.113 r 5.11(1)  4.108 r 5.11(1.1)  4.108 r 5.11(1.1)(b)  5.17 r 5.11(2)  4.108 r 5.11(3)  4.108 r 5.11(3.1)  4.108 r 5.11(4)  4.114 r 5.11(4.1)  4.114 r 5.11(5)  4.108 r 5.12  5.91 r 5.12(1)–(3)  4.109 r 5.12(4)  4.109, 5.92, 5.93, 6.40 r 5.12(5)  4.109 r 6.01  5.7, 5.33, 5.38 r 6.02(1)  5.32

Page 113 of 135 Table of Statutes r 6.03(1)(a)  5.34 r 6.03(1)(b)  5.34 r 6.03(2)  5.35 r 6.03(2.1)  5.35 r 6.04(b)  5.75 r 6.04(c)  5.75 r 6.04(d)  5.81 r 6.04(e)  5.81 r 6.06(1)  5.46 r 6.06(1)(a)  5.47 r 6.06(1)(b)  5.49 r 6.06(2)  5.46 r 6.07(1)(a)  5.31, 5.39 r 6.07(1)(b)  5.40 r 6.07(1)(d)  5.40 r 6.07(1)(e)  5.42 r 6.07(1)(f)  5.43 r 6.07(2)  5.41 r 6.07(2.1)  5.42 r 6.07(2.2)  5.43 r 6.07(3)  5.57 r 6.07(3.1)  5.57 r 6.07(4)  5.31 r 6.07(5)  5.31 r 6.07(6)  5.40 r 6.08  5.88 r 6.09  5.80 r 6.10  5.52 r 6.10(3)  5.116 r 6.11  5.56 r 6.12  5.57 r 6.13  5.77 r 6.14  5.83 r 6.17  5.88 r 7.01  5.126 r 7.02  5.134 r 7.03  5.134. 5.138 r 7.03(4)  5.141 r 7.04  5.142, 6.40 r 7.07  5.136 r 7.08  5.140 r 7.09  5.144 rr 7.10–7.12  5.146 r 8.02  6.1 r 8.04  4.110, 9.20 r 8.04(a)  6.26 r 8.04(b)  6.26 r 8.04(c)–(e)  6.26 r 8.05(1)  6.27 r 8.05(1.1)  6.27 r 8.05(3)  6.27 r 8.06  5.46 r 8.06(1)  5.49, 6.27 r 8.06(1)(a)(iv)  6.27 r 8.06(1)(b)(iii)  6.27 r 8.06(2)  5.49, 6.27 r 8.06(2)(a)  5.47 r 8.08  6.57 r 8.08(3)  6.57 r 8.09  6.40, 6.57

Page 114 of 135 Table of Statutes r 9.01  13.8 r 9.02  13.4, 13.7 r 9.03  13.5 r 9.04  13.6, 13.9 r 9.06  13.10 r 9.11  13.27 r 10.02  4.141 r 10.02(3)  4.141 r 10.03  4.141 r 10.04  4.141 r 10.04(5)  4.141 r 10.06  4.123 r 10.09  7.33 r 11.01  4.142, 7.59 r 11.02(1)  4.143 r 11.02(2)  4.143 r 11.04  4.143 rr 11.04–11.07  7.59 r 11.05  4.143 r 11.12(b)(ii)  4.123 r 11.15  4.142 r 13.01(3)  7.80 r 13.02(1)(b)  7.16, 26.7 r 13.02(2)  7.13 r 13.04  7.13 r 13.05  7.13 r 13.07  7.60 r 13.07(1)(a)  26.7 r 13.07(1)(b)  7.15 r 13.09  7.14 r 13.10  7.5, 7.19, 7.60 r 13.10(2)(c)  7.15 r 13.10(3)  7.15, 7.22 r 13.11  7.25 r 13.11(3)  7.8, 7.25 r 13.12  7.26 r 13.13  7.37 r 13.14  4.128 r 14.01  7.59 r 14.02  5.15, 7.59 r 14.04  5.15, 7.59, 9.20, 11.37 r 14.05  5.15, 7.35, 7.59 r 14.06  7.37, 7.59 r 14.07  7.59 r 14.09(c)  7.89 r 14.10  5.15 r 15.01  3.124 r 15.02(1)  3.124 r 15.02(3)  3.124 r 15.03(6)  3.125 r 15.08  3.126 r 17.03(1)(a)  5.68 r 17.03(2)  5.68 r 17.10  5.73 r 18.02  13.36 r 21.01  9.20 r 21.01(3)  9.20 r 21.01(3)(b)  5.87 r 21.03(1)  9.24 r 21.03(1)(a)(i)  9.33

Page 115 of 135 Table of Statutes r 21.03(1)(a)(ii)  9.33 r 21.03(1)(b)  9.8, 9.24, 11.50 r 21.03(1)(d)  9.35 r 21.07  9.43, 11.51, 23.33, 23.40 r 22.03  9.78 r 22.04  9.76 r 22.04(1)  8.13, 9.8 r 22.15  23.33, 23.40 r 22.16  9.78 r 22.23  23.33, 23.40 r 23.01  11.77, 11.81, 14.25 r 23.02  7.14, 7.77, 11.77, 11.81 r 24.01  9.66, 11.50 r 24.02  11.43, 11.44, 11.67 r 24.02(1)(b)  15.76 r 24.05  11.44 r 24.06  23.33, 23.40 r 24.06(b)  11.53 r 25.02(2)–(3)  14.1 r 25.02(2)(a)  14.6 r 25.02(3)–(4)  14.17 r 25.02(5)  7.76, 14.19 r 25.03  14.1 r 25.05  14.12 r 25.06  14.14 r 25.07  14.13 r 26.02(1)  27.54 r 26.02(3)(a)  27.50 r 26.02(3)(b)  27.50 r 26.02(4)  27.62 r 26.03(1)  27.50 r 26.03(3)  27.52 r 26.03(4)  27.71 r 26.03(4)(a)  27.71 r 26.03(4)(b)  27.71 r 26.03(5)  27.69 r 26.03(6)  27.72 r 26.03(7)  27.82 r 26.04  27.119 r 26.05(1)  27.120 r 26.05(2)  27.120 r 26.07.01(a)  27.75 r 26.07.01(b)  27.75 r 26.07.01(d)  27.75 r 26.07.2  27.53, 27.75 r 26.07(1)  27.74 r 26.07(2)  27.74 r 26.08(2)(a)  27.96 r 26.08(2)(b)  27.95 r 26.08(3)  27.110 r 26.08(4)  27.111 r 26.08(5)  27.92 r 26.08(7)  27.91 r 26.10  27.53 r 27.06  5.18, 11.81 r 27.06(2)  5.18 r 27.06(2)(a)  5.18 r 27.06(3)  5.18 r 27.07  5.18 r 28.01  5.13

Page 116 of 135 Table of Statutes r 28.03  5.16 r 28.05  3.58 r 28.05(1)  5.19 r 28.05(2)(a)  3.58, 5.19 r 28.05(2)(b)  3.58, 5.19 r 28.10(3)  5.17 r 28.10(4)  5.17 r 28A.01  5.13 r 28A.03  5.13 r 28A.04  5.17 r 28A.05  5.17 r 28A.08  4.108 r 29.01.1  15.36 r 29.01.1(3)  15.52 r 29.01.1(4)(b)  15.36 r 29.01.1(5)  15.54 r 29.02(1)  15.36, 15.41 r 29.04  15.57, 15.59 r 29.04(1)(d)  15.61 r 29.04(2)  15.56 r 29.05  15.36, 15.37 r 29.05.2  15.37 r 29.08  15.69 r 29.08(2)  15.67 r 29.09(1)  15.62 r 29.09(2)–(3)  15.62 r 29.09(4)  15.62 r 29.10  15.178 r 29.10(3)  15.179 r 29.12  15.40 r 29.12.1  11.44, 15.76 r 29.12.1(6)  23.33, 23.40 r 29.12(6)  11.51 r 29.15  15.73 r 30.01  15.96 r 30.02(2)  15.96 r 30.02(4)  15.100 r 30.04  15.112 r 30.05  15.113 r 30.06  15.112 r 30.07  15.112 r 30.07(1)(a)  15.107 r 30.07(1)(c)  15.108 r 30.07(1)(e)  15.105 r 30.09  15.115 r 30.09.1(6)  23.33, 23.40 r 30.11  15.117 r 31.02(1)  15.120 r 31.02(2)  15.120 r 31.04  15.120 r 31.06(1)  15.120 r 31.08(1)  15.120 r 31.09  15.120 r 31.11  15.120 r 31.11(4)  15.120 r 32.03  15.127 r 32.03(1)  15.129 r 32.05  15.137 r 32.08  15.127 r 32.11  28.220

Page 117 of 135 Table of Statutes r 32.11(2)  15.173 r 34.01  5.15, 11.23, 22.9, 22.23, 22.25, 22.74 r 35.02(2)  15.224 r 35.03  7.29, 15.221 r 35.03(3)  15.224 r 35.04  15.222 r 35.05  15.221 r 35.05(5)  15.224 r 35.06  15.223 r 35.07  15.222 r 35.08  15.178 r 36.01  7.66 r 36.01(3)  7.73 r 36.03  7.66 r 36.04  7.66 r 36.06  7.66 r 36.07  23.31 r 37.01  15.225 r 37A.08  28.220 r 37B.02  15.232 r 37B.03  15.239 r 37B.04  15.233 r 37B.05  15.234 r 37B.05(1)(d)  15.263 r 37B.07  28.220 r 40.02  20.36, 20.49, 20.50 r 40.02(a)  8.14 r 40.02(b)  20.26, 22.5 r 40.02(c)  20.26 r 40.03  20.50 r 41.01  15.119 r 41.10  28.208 r 42.01  15.150 r 42.02  22.89 r 42.02(1)(b)  15.150 r 42.02(2)(b)  15.155 r 42.03(8)  15.157 r 42.04  15.161 r 42.04(1)  23.33, 23.40 r 42.05  15.158 r 42.05(1)  5.32 r 42.06  15.150, 15.160 r 42.06(1)  15.158, 24.82 r 42.11  15.158, 15.159, 28.220 r 42.12  15.172, 22.89 r 42.13  15.155 r 43.03(1)  8.14, 20.11 r 43.03(2)  8.14 r 44.01  21.38 r 44.03(1)(a)  21.38 r 44.03(1)(b)  21.4 r 44.06(3)  21.46 r 46.02(3)  8.12, 20.50 r 46.04(1)  8.11 r 46.05  8.7 r 46.06  8.10 r 46.08  6.40, 8.32, 23.33, 23.40 r 47.02  11.20, 22.1 r 48.02(b)  9.66 r 49.01(1)  22.9, 22.23, 22.25, 22.74

Page 118 of 135 Table of Statutes r 49.01(2)  22.26 r 49.01(5)  22.30 r 49.02  3.74, 22.105 r 49.02(1)(b)  22.111, 22.113 r 49.02(2)  22.108, 23.33, 23.40 r 49.03  22.110 r 50.07  29.59 r 50.07(4)  17.85 r 58.05  25.77 r 58.07  4.106 r 58.12  25.77 r 58.21  25.77 r 59.01  23.14 r 59.02(1)  23.21 r 59.03  23.23 r 59.05  23.30 r 59.05(6)  23.33, 23.40 r 59.06  25.74 r 59.06(2)  23.47 r 59.06(8)(a)  23.47 r 59.07(1)  23.47 r 59.07(2)  23.47 r 60.01(1)  23.24, 23.25 r 60.02  23.25 r 60.02(2)  23.27 r 60.05  23.13, 23.50 r 61.02  24.44 r 61.02(7)  24.44 r 61.02(8)  24.44 r 61.03  24.44, 24.69 r 62.02  10.143 r 62.05  23.33, 23.40 r 63.01(1)  28.18 r 63.03(3)(a)  14.26 r 63.07(2)(a)  28.73 r 63.07(2)(c)  28.177 r 63.20  28.27 r 63.20.1  28.30 r 63.22  28.26 r 63.23  28.208, 28.260, 28.277, 28.287, 28.289 r 63.23(3)  28.288 r 63.23(4)  28.290 r 63.23(6)  28.290 r 63.28  28.95 r 63.30  28.100 r 63.30.1  28.112 r 63.30.1(2)  28.114 r 63.31  28.96, 28.119 r 63.34(1)  28.127, 28.128 r 63.34(3)  28.127 r 63.36(2)  28.169 r 63.38  28.152, 28.154 r 63.38(2)  28.154 r 63.42  28.154 r 63.47  28.155 r 63.49  28.155 r 63.53  28.161 r 63.55  28.165 r 63.56  28.153 r 63.56.1  28.170

Page 119 of 135 Table of Statutes r 63.56.1(1)  28.173 r 63.56.1(3)  28.170 r 63.56.1(4)  28.173 r 63.56.1(6)  28.173 r 63.56.2(1)  28.173 r 63.56.2(2)  28.173 r 63.56.2(4)  28.173 r 63.56.2(5)  28.173 r 63.56.2(6)  28.173 r 63.56.4(1)  28.173 r 63.56.4(4)  28.173 r 63.56.4(5)  28.173 r 63.56.4(6)  28.173 r 63.57  28.173 r 63.57(1)  28.170 r 63.85  28.167 r 63.86  28.156 r 63.88  28.152 r 63.89  28.158 r 64.02  25.54 r 64.03(4)  25.5 r 64.04  25.54 r 64.05  25.56 r 64.08  25.57 r 64.12  25.55 r 64.19  25.47 r 64.24(2)  10.173 r 64.29  25.73 r 64.30  25.71 r 64.32  25.72 r 64.36  25.76 r 64.37  25.77 r 64.39  24.9 r 66.05  24.83, 24.85 r 66.05(1)(a)  24.93 r 66.05(2)  15.116 r 66.10  23.29, 24.84 r 66.10(3)  23.23 r 66.10(5)  24.84 r 66.11  24.72 r 66.16  24.7 r 67.02  24.21, 24.36 r 67.03  24.21 r 68.02(1)(a)  24.14 r 68.05(1)  24.16 r 69.04(1)  24.34 r 69.04(3)  24.34 r 69.05  24.33 r 69.05(1)(a)  24.33 r 70.01  24.71 r 71.03  24.50 r 71.04  23.29 r 71.06(1)  24.53 r 71.09  24.53 r 72.06  23.29 r 73.01  24.58 r 73.02  24.56 r 73.04  24.57 r 73.06  23.29 r 73.07  24.56

Page 120 of 135 Table of Statutes r 73.08  24.57 r 73.12  24.60 rr 73.13–73.14  24.60 r 75.11  24.85 r 75.11(4)  24.87 r 77.07  25.46 r 80.03  5.148 r 80.04(1)  5.149 r 80.04(2)  5.149 r 80.04(3)  5.149 r 80.04(4)  5.149 r 80.04(5)  5.149 r 80.05  5.150 r 80.06  5.151 r 80.07  5.149 r 80.08  5.151 r 80.10  5.152 r 80.11  5.153 r 80.12  5.154 Form 4B  7.82 Appendix A  28.243 Vexatious Proceedings Act 2014  3.119 Pt 2  3.119 Pt 3  3.120 Pt 4  3.120 s 45  3.120

Western Australia Civil Judgments Enforcement Act 2004 Pt 4 Div 4  24.55 Pt 4 Div 5  24.47 s 8  23.54, 23.55, 23.61 s 11  23.21 s 12  24.14, 24.15 s 13  24.85 s 13(1)(a)  24.14 s 15  24.7 s 16  24.7 s 21(1)(b)  24.46 s 28  23.29 s 29  24.20, 24.21, 24.36 s 33  24.46 s 36(2)  23.29 s 40  24.52 s 48  24.50 s 50(2)  23.29 s 55  24.52 s 58  24.60 s 59  24.25 s 60(2)  23.29 s 64  24.34 ss 66–70  24.33 s 71  24.71

Page 121 of 135 Table of Statutes s 74  24.30 s 74(4)  24.30 s 76  24.31 s 80  24.71 s 86  24.56 s 88  24.46 s 89  24.46 s 90(1)(b)  24.46 s 90(2)–(3)  24.46 s 95  24.69 s 98  24.83 s 99  24.72 s 102(1)  24.16 s 117  24.26 Sch 1  24.50 Civil Judgments Enforcement Regulations 2005 reg 35  24.31 Crown Suits Act 1947  24.17 s 9  24.17 s 10  24.17 Commercial Arbitration Act 2012 s 1  29.33 s 1(3)  29.34 s 2(1)  29.39 s 5  29.47 s 7  29.36 s 7(2)  29.34 s 8  3.115 29.36, 29.38 s 16(1)  29.43 s 16(2)  29.42 s 27  29.47 s 27A  29.47 s 27C  29.41 s 27C(1)  29.41 ss 27E–27I  29.46 s 33  29.50 s 34(2)  29.48 s 34(3)  29.49 s 34A  29.50 s 34A(1)(a)  29.50 s 34A(3)(a)  29.50 s 34A(3)(c)(i).  29.50 s 34A(6)  29.50 s 35  29.49 Construction Contracts Act 2004 Pt 3  29.4 Criminal Code 1913 Pt III Ch XVI  3.100 s 124  3.100

Page 122 of 135 Table of Statutes Defamation Act 2005  3.106 s 23  14.14 s 24  3.106 s 27(2)  3.106 District Court of Western Australia Act 1969 Pt III Div 2  4.38 s 7  4.38 s 8  4.38 s 50(1)  4.38 District Court Rules 2005 r 6  4.40, 7.13 r 6(1)  7.62 r 24(2)(a)  7.89 r 45D  7.15 r 48A  7.66 Evidence Act 1906  27.24 s 11  18.2, 18.27 ss 19A–19B  15.207 ss 20G–20M  3.66, 3.109, 15.217 s 20I  15.217 s 20J(2)  15.219 s 24  18.2 Family Court Act 1975  2.13 Family Court Act 1997  2.13 Pt 7  2.13 Freedom of Information Act 1992 s 10  15.229 s 32  15.229 Sch 1 cl 4  15.229 Sch 1 cl 6  15.229 Interpretation Act 1918 s 43  2.54 Jurisdiction of Courts (Cross-vesting) Act 1987  2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 2.52 s 5  2.49, 2.50 s 5(7)  2.49 s 8  2.49 Law Reform (Statute of Frauds) Act 1962  11.14 Legal Profession Act 2008  28.299 s 252  28.189, 28.191, 28.192 s 260  28.300, 28.301 s 261  28.300 s 262  28.300 s 263  28.300 s 263(2)(c)  28.191

Page 123 of 135 Table of Statutes s 263(2)(d)  28.191 s 267  28.300, 28.302 s 268(1)–(2)  28.303 s 268(3)  28.303 s 268(3)–(4)  28.303 s 271  28.310 s 271(b)  28.38, 28.195 s 271(c)  28.38, 28.195 s 282  28.35 s 282(2)  28.35 s 283(1)  28.189 s 283(2)  28.190 s 283(3)  28.190 s 283(4)  28.191 s 284(1)  28.192, 28.194 s 284(2)  28.192 s 284(4)  28.192, 28.193 s 284(4)(a)  28.193 s 285  28.194 s 286  28.34 s 287(1)  28.35, 28.195 s 287(2)  28.38, 28.195 s 288  28.36 s 293  28.312 s 295  28.304 s 297  28.306 s 298(b)  28.306 s 299  28.308 s 301  28.310 s 302(1)  28.310 s 303  28.310 s 304  28.308 s 304(1)  28.313 s 304(2)(b)  28.313 s 308  28.300, 28.312 s 310  28.300 s 311  28.300 s 316(1)–(2)  28.303 s 316(3)  28.303 s 469  28.295 Legal Profession Conduct Rules 2010 r 9(3)(g)  28.294 Limitation Act 2005  26.7, 26.35, 26.44 Pt 2  26.13 Pt 4 Div 1  26.16 Pt 4 Div 2  26.16 s 3  26.13, 26.36 s 6  26.13 s 9  26.11 s 14  26.13 s 14(1)  26.33 s 15  26.13 s 16  26.13 s 19  26.13 s 20  26.13 ss 23–25  26.13

Page 124 of 135 Table of Statutes s 27  26.12 s 35  26.38 s 35(1)(b)  26.39 s 38  26.44 s 39(3)  26.57 s 39(4)  26.57 s 40(2)  26.58 s 40(3)  26.58 s 41  26.36 s 44  26.57 s 46(1)(a)  26.46 s 46(1)(b)  26.46 s 46(1)(c)  26.46 s 47  26.46 s 48  26.46 s 52  26.14 s 74  26.7 s 75  26.7 ss 77–78  26.7 s 80  26.12 Magistrates Court Act 2004 s 4  4.39 s 9  4.39 s 10  4.39 Magistrates Court (Civil Proceedings) Act 2004 Pt 2  4.39 Pt 4  4.41 s 3  4.41 s 17  7.77 Magistrates Court (Civil Proceedings) Rules 2005  7.35 Pt 2  7.62 Pt 6  7.76 r 7  7.13 r 7(3)  7.64 r 7A(1)  7.64 r 7A(3)  7.64 r 7A(3)(b)  7.13 r 8  7.32, 7.34, 7.64 r 9(1A)  7.64 r 10  7.26 r 10(1)  7.64 r 10(3)  7.64 r 10(3)(b)  7.13 r 28  7.29 r 40(2)(d)  7.66 Partnership Act 1895 s 28  24.18 Rules of the Supreme Court 1971  1.69, 7.13 O 1 r 1A(3)  5.130 O 1 r 4  11.3 O 1 r 4(1)  28.18

Page 125 of 135 Table of Statutes O 1 r 4B  15.39, 20.57 O 2 r 1  5.91, 11.5, 11.23 O 3 r 5  5.15, 5.91, 11.5, 11.36 O 4  5.13 O 4 r 1  4.115, 25.30, 25.49 O 4 r 1(a)  4.54 O 4 r 5  25.30, 25.49 O 4A r 2  5.15, 20.57 O 4A r 2(2)  22.23, 22.25 O 4A r 2(2)(t)  20.14, 20.25, 20.57 O 4A r 5(1)  20.25 O 4A r 8  29.51 O 4A r 8(6)  17.85 O 4A r 23  11.44 O 5 r 1  4.116 O 5 r 2  4.116 O 5 r 3  4.119 O 5 rr 6–8  5.16 O 5 r 11  4.119, 9.21 O 5 r 11(1)  6.29 O 5 r 11(1)–(3)  6.29 O 6 r 1  4.118, 25.30 O 6 r 2  4.118 O 6 r 3  4.118, 7.62 O 6 r 4  4.118 O 6 r 6  4.117, 4.118, 4.119 O 6 r 7  4.119 O 6 r 7(b)  5.46 O 7 r 1  4.117, 5.91 O 7 r 4  4.117 O 9 r 1(1)  5.32 O 9 r 1(2)  5.80 O 9 r 1(3)  5.85 O 9 r 2  5.77 O 9 r 3  5.83 O 9 r 5  5.32, 5.83 O 9A  28.197 O 10 r 1  5.137 O 10 r 1A(2)  5.126, 5.137 O 10 r 1A(3A)  5.126 O 10 r 4  5.141 O 10 r 7  5.140 O 10 r 9  5.146 O 10 r 10(1)  5.144 O 10 r 10(2)  5.144 O 10 r 10(3)  5.144 O 11A  5.148 O 11A r 3  5.148 O 11A r 4(1)  5.149 O 11A r 4(2)  5.149 O 11A r 4(3)  5.149 O 11A r 4(4)  5.149 O 11A r 4(5)  5.149 O 11A r 5  5.150 O 11A r 6  5.151 O 11A r 8  5.151 O 11A r 10  5.152 O 11A r 11  5.153 O 11A r 12  5.154, 23.33, 23.40 O 12 r 2(1)  6.31

Page 126 of 135 Table of Statutes O 12 r 2(2)  6.31 O 12 r 2(2)(b)  5.46 O 12 r 4  6.31 O 12 r 6(1)  6.58 O 12 r 6(2)  6.58 O 12 r 7  6.40, 6.58 O 13 r 1  9.21 O 13 r 1(3)  5.87 O 13 r 2  9.24 O 13 r 2(3)  9.34 O 13 r 3  9.8, 11.50 O 13 r 4  9.24 O 13 r 4(1)(a)  9.35 O 13 r 5  9.24 O 13 r 9  9.8 O 13 r 14  9.43, 11.51, 23.33, 23.40 O 14 r 1(1)  9.78, 9.83 O 14 r 2  9.83 O 14 r 3  9.83 O 14 r 12  23.33, 23.40 O 16 r 1  9.83 O 16 r 1(1)  9.78 O 16 r 4  23.33, 23.40 O 17  24.29 O 18  7.32 O 18 r 1  13.8 O 18 r 2  4.154 O 18 r 2(1)  4.154, 7.62 O 18 r 3  4.154, 7.62 O 18 r 3(2)–(5)  4.154 O 18 r 3(4)  7.62 O 18 r 4  13.4, 13.5, 13.7 O 18 r 5  4.123, 13.6, 13.9 O 18 r 6  13.10 O 18 r 8  13.27 O 18 r 12  13.36 O 18 r 16  23.19 O 19  7.34, 7.62 O 19 r 1(1)  4.155, 4.156, 7.62 O 19 r 1(2)  4.156, 7.62 O 19 r 2 …4.156 O 19 r 3(3)  7.62 O 19 r 4  4.123 O 19 r 5(3)  23.33, 23.40 O 19 r 8  4.155 O 20  7.13, 7.26, 7.62 O 20 r 1  7.62 O 20 r 3  7.62 O 20 rr 3–5  5.15 O 20 r 4  7.62 O 20 r 5  7.35, 7.62 O 20 r 6  7.37, 7.62 O 20 r 7(5)  7.80 O 20 r 8(3)  7.13 O 20 r 8(4)  7.13 O 20 r 9  7.63 O 20 r 9(1)(a)  26.7 O 20 r 9(1)(b)  7.15, 7.16 O 20 r 11  7.14 O 20 r 12  7.13

Page 127 of 135 Table of Statutes O 20 r 13  7.5, 7.19 O 20 r 13(1)  7.15, 7.22 O 20 r 13(1)(a)  7.63 O 20 r 13(1)(b)  7.63 O 20 r 13(3)  7.25 O 20 r 13(6)  7.8, 7.25 O 20 r 13A  7.63 O 20 r 15(1)  7.37 O 20 r 17  4.128 O 20 r 19  7.14, 7.77 O 20 r 19(1)(d)  11.77, 11.81 O 20 r 21  7.89 O 21  25.55 O 21 r 1  7.66 O 21 r 3  7.66 O 21 r 3(2)  7.66 O 21 r 5  7.66, 7.73 O 21 r 10  23.31 O 23 r 2  7.76, 14.14 O 23 r 2(1)  14.1, 14.6, 14.12 O 23 r 2(4)  14.17, 14.19 O 23 r 4  14.13 O 23 r 11(4)  27.92 O 24A r 1  27.54 O 24A r 3(1)  27.50 O 24A r 3(3)  27.52 O 24A r 3(4)  27.71 O 24A r 3(5)  27.71 O 24A r 3(6)  27.69 O 24A r 3(7)  27.72 O 24A r 3(8)  27.50 O 24A r 3A(2)(a)  27.50 O 24A r 3A(2)(b)  27.50 O 24A r 5(1)  27.74 O 24A r 5(2)  27.74 O 24A r 5(3)  27.74 O 24A r 6  27.119 O 24A r 7(1)  27.120 O 24A r 7(2)  27.120 O 24A r 8(1)  27.75 O 24A r 8(1)(a)  27.75 O 24A r 8(2)  27.75 O 24A r 9  27.53, 27.73, 27.75 O 24A r 10(1)  27.61, 27.80 O 24A r 10(2)  27.61, 27.80 O 24A r 10(3)  27.91 O 24A r 10(4)  27.97 O 24A r 10(5)  27.106 O 24A r 10(5A)  27.97 O 24A r 10(7)  27.92 O 24A r 10(7A)  27.106 O 25 r 1  10.143 O 25 r 5(1)(a)  15.109 O 26 r 1(1)  15.39 O 26 r 1(2)  15.39 O 26 r 2  15.73 O 26 r 4(1)  15.57, 15.59 O 26 r 4(2)  15.61 O 26 r 4(3)  15.52 O 26 r 6  15.67

Page 128 of 135 Table of Statutes O 26 r 6(6)  15.71 O 26 r 7  15.39 O 26 r 8  15.69, 15.178 O 26 r 8(1)  15.62 O 26 r 8(2)  15.179 O 26 r 8(4)  15.62 O 26 r 8(5)  15.62 O 26 r 8A  15.62 O 26 r 9  15.62 O 26 r 15(1)  15.76 O 26 r 16A  15.60 O 26A r 1(1)  15.41 O 26A r 1A  15.40 O 26A r 3  15.127 O 26A r 3(1)  15.129 O 26A r 3(3)  15.127 O 26A r 4  15.137 O 26A r 4(1)  15.137 O 26A r 4(2)  15.137 O 26A r 5  15.173 O 26A r 7  15.173, 28.220 O 26A r 10  11.51 O 27 r 1  15.96, 15.112 O 27 r 1(1)  15.96 O 27 r 1(5)(a)  15.107 O 27 r 4  15.105, 15.112 O 27 r 5  15.112 O 27 r 5(1)(a)  15.108 O 27 r 7  15.115 O 27 r 8  15.116 O 27 r 9  15.117 O 30 r 2  7.29, 15.221, 15.224 O 30 r 3  15.222 O 30 r 5  15.178, 15.221 O 30 r 5(2)  15.222 O 33 r 2  9.67, 11.50 O 33 r 8  9.2 O 34 r 1  3.74, 22.105, 22.108 O 34 r 2  3.74, 22.105, 22.111, 22.113 O 34 r 3  3.74, 22.108, 23.33, 23.40 O 34 r 4  22.110 O 34 r 5(1)  22.23, 22.25 O 34 r 5(2)  22.26 O 34 r 5(4)  22.26 O 34 r 5(5)  22.30 O 34 r 5A  22.9, 22.23, 22.74 O 34 r 8  23.14 O 36 r 1  20.26, 20.54, 22.5 O 36 r 2  20.55 O 36 r 2(3)  20.26, 20.56 O 36 r 5  28.208 O 36B r 2  22.89 O 36B r 2(1)(b)  15.150 O 36B r 2(2)(b)  15.155 O 36B r 3(8)  15.157 O 36B r 4  15.161 O 36B r 4(1)  5.32 O 36B r 5  15.156 O 36B r 6(1)  15.158 O 36B r 6(4)(b)  15.150, 15.160

Page 129 of 135 Table of Statutes O 36B r 8(2)  23.33, 23.40 O 36B r 11  15.158, 15.159, 28.220 O 36B r 12  15.172, 22.89 O 36B r 12(2)  15.156 O 36B r 13  15.155 O 37  20.11 O 37 r 6(1)  20.11 O 38 r 9  24.82 O 39A  5.126 O 39A r 4  23.33, 23.40 O 42 r 1(3)  23.13, 23.50 O 42 r 2  23.21 O 42 r 3  23.23 O 42 r 7  23.47 O 42 r 8  23.47 O 43 r 2  23.24 O 43 r 3  23.25 O 43 r 15  23.31 O 43 r 16  23.47 Os 51–52B  10.1 O 51B r 2  15.232 O 51B r 3  15.239 O 51B r 4  15.233 O 51B r 5  15.234 O 51B r 5(1)(d)  15.263 O 52 rr 2–3  15.225 O 52 r 9  10.63 O 52A  10.107 O 52A r 8  28.220 O 52b r 7  28.220 O 54  8.2 O 54 r 4  4.120, 8.7, 8.10 O 54 r 5  4.116 O 54 r 5(1)  4.120 O 54 r 5(3)  4.120 O 54 r 6  4.117, 5.16 O 58 r 1  4.121 O 58 r 2  4.115 O 58 r 3  4.115 O 58 r 10  4.115, 4.121 O 58 r 11  4.115, 4.121 O 58 r 13  4.115, 4.121 O 58 r 14  4.121 O 58 r 14(1)  4.116 O 58 r 14(3)  4.117, 5.16 O 58 r 14(4)  5.16 O 58 r 14(6)  4.116 O 58 r 15  4.117 O 58 r 16  6.30 O 58 r 17(1)  6.30 O 58 r 17(5)  5.46, 6.31 O 58 r 23  6.40, 23.33, 23.40 O 59  8.2 O 59 r 5  8.7, 8.10 O 60 r 1  25.49 O 60A r 1  25.48 O 60A r 2  25.48 O 60A r 4  25.48 O 60A r 6  25.48 O 61 r 3  23.30

Page 130 of 135 Table of Statutes O 61 r 28  25.49 O 65 r 6(1)  23.33, 23.40 O 65 r 8  25.49 O 65 r 10  25.54 O 65 r 12  25.71, 25.72 O 65 r 17  25.73 O 65 r 18  25.74 O 66 r 1(1)  28.49 O 66 r 1(3)  28.57 O 66 r 3  15.223 O 66 r 5  28.208, 28.260, 28.261, 28.272, 28.287, 28.288 O 66 r 5(1)  28.289 O 66 r 5(2)  28.288 O 66 r 5(3)  28.290 O 66 r 11(2)–(3)  28.127 O 66 r 11(3)  28.128 O 66 r 13(a)  28.57 O 66 r 13(b)  28.177 O 66 r 17  4.40 O 66 r 32(1)  28.152 O 66 r 39  28.154 O 66 r 40  28.161 O 66 r 42  28.154 O 66 r 43  28.170 O 66 r 44(c)  28.163 O 66 r 44(e)  28.165 O 66 r 53  28.170 O 66 r 54(3)  28.170 O 66 r 54(4)  28.170 O 66 r 55  28.170 O 66 r 56  28.170 O 66 r 57  28.153 O 67 r 5  5.18, 11.81 O 67 r 5(1)  5.18 O 67 r 9(1)  5.16 O 67 r 11(1)  3.58, 5.19 O 67 r 19  5.13 O 67 r 19(6)  5.17 O 67 r 20  5.13 O 69  4.58 O 69 r 2(2)  5.18 O 70 r 1  3.124 O 70 r 2(1)  3.124 O 70 r 2(3)  3.124 O 70 r 2(4)  3.124 O 70 r 3(2)  3.125 O 70 r 10  3.126 O 70 r 10A  3.126 O 70 r 11  3.126 O 71  24.84 O 71 r 3(1)(a)  5.68 O 71 r 3(1)(b)  5.69 O 71 r 3(2)  5.68 O 71 r 12  5.73 O 71 r 13  5.75 O 71A r 3(1)(a)  5.49 O 71A r 3(2)  5.47 O 71A r 3(2)(b)  5.49 O 71A r 3(2)(c)  5.49 O 71A r 4  5.18

Page 131 of 135 Table of Statutes O 72 r 2  5.34, 5.35 O 72 r 3A  5.81 O 72 r 4 … 5.52 O 72 r 5  6.31 O 72 r 5(2)(a)  5.7, 5.33, 5.38 O 72 r 5(3)(a)  5.39, 5.40 O 72 r 5(3)(b)  5.40, 5.42, 5.43 O 72 r 5(4)(c)  5.42 O 72 r 5(5)(a)  5.41 O 72 r 5A(2)  5.23, 5.31 O 72 r 7  5.88 O 72 r 8  5.57 O 91 r 1  28.205 r 2(2)(s)  20.57 r 2(ia)  21.4 r 3.5  25.57 r 4A  1.55 r 4B  1.55 r 4B(2)  1.55 r 6A  5.43 r 7  5.149 r 13.10  8.32 r 14.2(1)  8.13 r 14.12  8.32 r 19  11.74 r 22.10  8.32 r 36.2(3)  8.14 r 36A(1)  21.4, 21.48 r 36B.4(1)  8.32 r 37.6(1)  8.14 r 37.6(2)(c)  8.14 r 54.3  8.21 r 54.4  8.7 r 54.5(1)  8.11 r 58.23  8.32 r 59.4(1)  8.11 r 59.5  8.7 r 63.29  28.99 r 65.10(5)  10.173 Sch 2, Forms 1–3  4.116 Sch 2, Form 5  4.119 Sch 2, Form 64  4.116 Sch 2, Form 74  4.116 Sch 2, Form 75  4.116 Rules of the Supreme Court (Court of Appeal) 2005 r 25  25.49 Supreme Court Act 1880  1.14 Supreme Court Act 1935  1.14, 4.54, 4.115 s 24(5A)(a)  14.25 s 25(9)  10.9, 24.61 s 37  28.13 s 37(1)  28.112, 28.205 s 42  11.20, 22.1 s 43  25.50 s 56  21.113

Page 132 of 135 Table of Statutes s 58  25.5, 25.49 s 60  25.50 s 60(1)(e)  25.50, 25.75 s 60(1)(f)  25.19, 25.50 s 155  25.30 Supreme Court (Corporations) (WA) Rules 2004  4.52 Supreme Court (Court of Appeal) Rules 2005 O 65 r 12  25.70 r 8  25.77 r 25  25.14 r 26  25.56 r 33  25.71, 25.72 r 60(3)  3.126 Transfer of Land Act 1893 s 133  24.35 Vexatious Proceedings Restriction Act 2002  3.119 s 4(1)  3.120 s 4(1)(d)  3.120 s 4(2)  3.120 s 4(3)  3.120 Wills Act 1970 Pt XI  15.39 Pr XII  15.39

Canada Class Proceedings Act 1992 (Ontario) s 12  13.63 s 32(3)  13.63

International European Convention on Human Rights Art 6  3.2, 3.9, 16.16, 18.12, 29.52 Art 8  15.210 Art 8(1)  15.210 Art 8(2)  15.210 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters  5.125, 5.127, 5.128, 5.129, 5.130, 5.131 , 5.132, 5.146, 5.148, 5.149, 5.155, 10.136 UNCITRAL Arbitration Rules  3.115 UNCITRAL Model Law on International Commercial Arbitration  3.115, 29.37 Art 1(3)  29.35 Art 7  29.36

Page 133 of 135 Table of Statutes Art 8  29.36, 29.38 Art 16(1)  29.43 Art 16(2)  26.42 Art 34(2)  29.48

New Zealand Commerce Act 1986  24.104 s 67(2)  24.104 Tax Administration Act 1994 ss 20B–20G  16.38

United Kingdom Administration of Justice Act 1960 s 12  21.99 Australia Act 1986  2.4, 2.40, 2.55 s 1  2.55 s 2  2.55 s 3  2.55 s 8  2.55 s 11  2.55 Civil Evidence Act 1972  20.4 s 2(3)  20.4 Civil Procedure (Amendment) Rules 2013 r 11  15.7 Civil Procedure Rules 1998  1.32, 1.33, 1.36, 4.48, 7.7, 7.17, 7.25, 7.80, 21.4 Pt 22  7.80 Pt 36  27.14 r 1.1  16.72 r 1.1(1)  1.32, 1.36 r 1.1(2)  1.32 r 1.2  1.32, 1.36 r 19.5  13.31 r 19.5(2)  13.31 r 19.5(3)  13.31 r 24.2  9.87, 9.90, 9.97 r 31.5  15.7 r 35.3  16.59 r 35.4(1)  21.86 r 35.4(2)  21.4 r 36.3(g)  27.14 r 36.5(1)(c)  27.14 r 36.17(1)(a)  27.14 r 36.17(1)(b)  27.14 r 36.17(3)  27.14 r 36.17(4)  27.14 r 36.17(4)(d)  27.14

Page 134 of 135 Table of Statutes r 36.17(5)  27.14 r 40.7  23.21 r 44.2(7)  28.73 r 44.3(6)(a)  28.73 r 44.3(6)(f)  28.73 Common Law Procedure Act 1852  24.13 ss 128–131  24.13 Common Law Procedure Act 1854  24.47 Commonwealth of Australia Constitution Act 1900 Ch III  19.46, 19.47, 19.51, 19.63 s 73  23.9 Constitutional Reform Act 2005  24.83 Contempt of Court Act 1981 s 14  24.92 Copyright, Designs and Patents Act 1988 Sch 7 para 28  18.15 Evidence (Proceedings in Other Jurisdictions) Act 1975 s 3  18.6 Insolvency Act 1986 s 423  16.80 Judicature Act 1873  1.12, 1.14, 7.6, 20.3, 23.9, 23.14 s 100  4.48 Judicature Act 1875  1.12, 1.14, 7.6, 20.3, 23.9, 23.14 Sch 1  4.48, 4.50 Sch 1 O I r 1  4.48 Sch 1 O III r 1  4.50 Sch 1 O III r 2  4.50 Sch 1 O III r 3  4.50 Sch 1 O III r 6  4.50 Sch 1 O III r 8  4.50 Sch 1 O XII r 1  4.50 Sch 1 O XIX r 2  4.50 Sch 1 O LIII  4.48 Sch 1 O LIV  4.48 App A Pt II  4.50 App A Pt II s II(1)  4.50 App A Pt II s VII  4.50 Limitation Act 1980 s 35  7.73 s 35(5)(a)  7.73

Page 135 of 135 Table of Statutes

Litigants in Person (Costs and Expenses) Act 1975  28.251 Magna Carta 1215 Ch 40  3.110 Police and Criminal Evidence Act 1984 Pt IX  19.14 s 8  18.34 s 19  18.34 s 49  19.14 Rules of the Supreme Court 1965 O 15 r 6  7.73 O 38 r 2A  20.4 Senior Courts Act 1981 s 72  18.35 Supreme Court Act 1981 s 51(7)(a)  28.265 s 72  18.15 s 72(3)  18.15

United States of America Constitution  3.9 Federal Rules of Civil Procedure r 11  7.80 r 23G  13.90 r 26(b)(3)  16.69

United States Code Title 28 § 1782  15.226

End of Document

Chapter 1 The Overriding Objective of Australian Civil Procedure Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 1 — The Overriding Objective of Australian Civil Procedure

Chapter 1 The Overriding Objective of Australian Civil Procedure Page 1 [Current to May 2018]   A well-functioning civil justice system underpins social cohesion and economic activity by protecting the personal, contractual and property rights established in law. It also provides a deterrent to, and redress for, violation of these rights by offering efficient and effective dispute resolution processes.1

1

Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, p 137.

Introduction The Old System of civil justice

1.1 The overriding objective in Australia can only be properly understood from an appreciation of its English roots. As a matter of history, Australian civil procedure was, to a significant degree, inherited from the Old System of civil justice in England and Wales. With this importation followed a number of inefficiencies that were embedded in the Old System. Lord Woolf MR drew attention to these defects in his Interim Report on Access to Justice in 1995, as ‘the excesses of and the lack of control over the system of civil litigation; the inadequate attention which the system gives to the control of costs and delay and to the need to ensure equality between the parties; the complexity of the present system; and the absence of any satisfactory judicial responsibility for the effective use of resources within the civil system’.2 The Old System allowed litigants to use as many of the court’s resources as they desired, it tolerated complexity and a proliferation of wasteful satellite litigation on matters of procedure rather than substance, and it created considerable scope for the running up of high and unpredictable litigation costs.

2

Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice Inquiry, Interim Report), HMSO, London, June 1995, Ch 4, [1].

Page 2 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure

1.2 Like its English counterpart, the Australian Old System was characterised by excessive delay, cost and complexity in proceedings, and these barriers prevented ordinary people from accessing the civil justice system.3 From as early as 1899 to

Page 2 1900, Australia began to be critical of the delay and costs associated with the Old System.4 However, effective change did not occur in the 1900s and an increasing demand for the civil justice system by litigants was followed by an amplification of the problems with the Old System. Former Chief Justice of the High Court of Australia,Gerard Brennan, described Australian civil procedure by 1996 as having the following features: The courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant; governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an understatement to say that the system of administering justice is in crisis.5

Sir Anthony Mason, another former Chief Justice of the High Court of Australia, described the Old System as causative of an ‘erosion of faith’ in the Australian civil justice system.6 According to Sir Anthony, the erosion was in part caused by ‘rigidities and complexity, the length of time it takes and the expense (both to government and the parties) has long been the subject of critical notice’.7 Justice McClelland has also remarked that the Old System in Australia reflected a time when ‘the community was less concerned with the time and cost of the judicial process, and in any event those costs were less onerous, most people accepted that its benefits outweighed the detriments. The primacy of individual autonomy which it acknowledged could be afforded’.8 It should be noted, however, that the notion that Australian civil procedure was in a ‘crisis’ was not uniformly accepted.9 Irrespective of the adjective used to describe the circumstances, it was clear that procedural reform was needed to urgently address manifest inefficiency.

3

G Brennan, ‘Key Issues in Judicial Administration’ (1997) 6 Journal of Judicial Administration 138 at 139.

4

Report of Royal Commission for Inquiring as to the means of avoiding unnecessary delay and expense, and of making improvements in the administration of justice and in the working of the law, Parliamentary Papers, Victoria, No 15, 1899–1900,Vol 3. See also R Cranston, P Haynes, J Pullen and I R Scott, ‘Delays in Efficiency in Civil Litigation’, Australian Institute of Judicial Administration, 1984, at 3.

5

G Brennan, ‘Key Issues in Judicial Administration’ (1997) 6 Journal of Judicial Administration 138 at 139.

6

Sir Anthony Mason, AC KBE, ‘The Future of Adversarial Justice’, paper presented to the 17th AIJA Annual Conference, Adelaide, 6–8 August 1999; see also K Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’(2018) 92 Australian Law Journal 32 at 34.

7

Sir Anthony Mason, AC KBE, ‘The Future of Adversarial Justice’, paper presented to the 17th AIJA Annual Conference, Adelaide, 6–8 August 1999.

8

Justice P D McClellan, ‘Civil Justice Reform — What has it achieved?’ [2010] New South Wales Judicial Scholarship 5 at 3–4.

9

Australian Law Reform Commission, Review of the Adversarial System of Litigation, Report No 89, 1990, 1.48.

Procedural reforms

1.3 To attempt to overcome the excesses and inefficiencies of the Old System, procedural reform was needed. In 1996, the seminal works of the Woolf Reports on Access to Justice in the United Kingdom were published in which Lord

Page 3 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure Woolf MR recommended the adoption of an overriding objective which embodied a three-dimensional concept of justice which incorporates the arriving at of judgments

Page 3 that are correct in fact and in law, by means of proportionate use of resources, and within a reasonable time.10 Another significant element of the Woolf Reforms was that control of litigation was transferred from the parties to the court, such that case management procedures were to be adopted that would be discharged consistently with the overriding objective.

10 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Section I [8].

1.4 Following the Woolf Reforms in the United Kingdom, the Australian Government commissioned in 2000 a report from the Australian Law Reform Commission (ALRC) on ‘the need for a simpler, cheaper and more accessible justice system’.11 The ALRC found that equitable justice requires the legal process to be just, proportionate and timely and these findings were consistent with Lord Woolf MR’s recommendations. Despite this, many jurisdictions in Australia began to implement versions of the overriding objective into their procedural statutes and court rules.

11 Australian Law Reform Commission, Managing Justice: a review into the federal civil justice system, Report No 89, 2000, Vol 1, p 8.

1.5 By the year 2009 in the United Kingdom, the costs of civil litigation had continued to climb despite the implementation of the Woolf Reforms. Sir Rupert Jackson was tasked to compile a report following a Review of Civil Litigation Costs. Sir Rupert concluded, amongst other things, that more emphasis was required to be given to the notion of proportionality. The essence of proportionality is that the ends do not necessarily justify the means. The law facilitates the pursuit of lawful claims and defences, but only to the extent that the means used for their pursuit are reasonably proportionate to the cost that they involve and to the burden that they imposed on the court, on other litigants, and on the public generally.12

12 Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (Jackson Final Report), 2010, [5.3] at 36.

1.6 As a result of the above procedural reforms, each state in Australia adopted a version of the overriding objective and an underlying philosophy of proportionality in case management decision-making. In 2014, the Australian Productivity Commission identified that, on a pan-Australian basis, the objective of Australia’s justice system includes the provision of least cost avenues for dispute resolution, facilitation of the quick resolution of disputes at the earliest opportunity, and the enabling of proportionate legal services to solve problems.13

Page 4 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure

13 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014.

Overriding objective in Australia

1.7 So influential were the Woolf Reforms in the United Kingdom that each jurisdiction in Australia has adopted a version of the overriding objective and the tenets of proportionality. These implementations largely occurred around the time each jurisdiction adopted case management procedures, and shifted the responsibility for the management of civil disputes from the litigants to the court. The three requirements of the overriding objective, the just resolution of disputes, expedition, and the proportionality of cost, are now common in each Australian state and territory.

Page 4

1.8 The High Court in Aon Risk Services Australia Ltd v Australian National University14 confirmed that the overriding objective of Australian civil procedure displaces justice on the merits as the sole objective of the justice system and that substantive justice is to be balanced with equally important but competing considerations of expedition and the proportionality of cost. The High Court also recognised that the public interest in the system of administration of civil justice as a whole is to be considered when making case management decisions, as delay and the use of disproportionate resources affects litigants waiting for justice in the queue and diminishes public confidence in access to justice. A not insignificant body of case law is developing which sheds light on how courts are managing cases using the overriding objective as a guiding light.

14 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

Defects of the Old System Introduction

1.9 Novel though the overriding objective may be, it cannot be fully understood without some reference to the previous state of the law, if only because the new regime represents an attempt to remedy the defects of the Old System. As in other contexts of statutory interpretation, there is a need to have a conception of the mischief that the overriding objective is intended to cure before one can fully comprehend its implications. Accordingly, it is necessary to devote part of this chapter to the problems that gave rise to the need for the new arrangements.

1.10

Page 5 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure One of the worst features of the Old System was the way in which it ignored resource and time constraints and single-mindedly pursued justice on the merits regardless of cost and delay. The consequences of this onedimensional approach to civil justice were most prominent in the approach to party non-compliance with rules and court orders.

1.11 A perennial problem faced by any system of procedure is how to deal with parties who fail to comply with process rules or with court orders. Several options present themselves in this respect. At one extreme, defects can be forgiven and the defaulting litigant be allowed to proceed with their case, so that the court may decide the dispute on its substantive merits. At the other extreme, the court can hold that by failing to obey rules or court orders, the defaulting party has forfeited the right to use the particular process, which may result in striking out the defaulting party’s claim or defence. Between these two poles there is a variety of other approaches available. The defaulting party may, for instance, be allowed to proceed only if certain mitigating circumstances are present. Alternatively, the court may allow the defaulting party to proceed on condition that costs are paid or that some other disadvantage is suffered. The approach chosen is bound to have far-reaching consequences on the costs of litigation, on its duration, and on the administration of justice as a whole.

Page 5

1.12 The approach of the Old System was itself a reaction to an earlier regime. During a long period preceding the Supreme Court of Judicature Act 1873 (UK), later amended by the Supreme Court of Judicature Act 1875 (UK), a formalistic approach dominated the law of procedure. The courts saw it as their main task to secure adherence with process requirements. A party to litigation could not obtain a judgment on the merits unless all procedural forms were completely and precisely followed. In 1901, William Odgers described the judicial climate before the Judicature Acts as follows: In the first place, our judges in those days were pedantically strict as to the form of action in which the plaintiff sued and as to the technical language in which claims and defences appeared on the records of the Court. There were only so many ‘forms of action’ recognised by the Court; and every plaintiff had to pin himself down to one of these. If he selected the wrong one, he would at the trial be non-suited and have to pay the defendant’s costs, although an action would have lain if the declaration had been differently drawn.15

The common law courts, Odgers wrote, ‘were sadly hampered in the year 1800 by cumbrous procedure and pedantic technicalities which caused suitors expense, delay, vexation and disgust. It took years for a merchant to recover a debt due to him. And half the actions were decided not on their real merits, but on questions of form and pleading’.16 The situation in the Court of Chancery was no better. Although that court was supposed to administer a code of morals rather than strict law and was meant to remedy the evils that flowed from the technicalities of the common law, the Court of Chancery’s processes by the year 1800 ‘had become’, according to Odgers, ‘… more technical, if that were possible, than the courts of common law themselves; its procedure had become more rigid; it would only grant relief in certain specified cases. However strong the moral claim of a plaintiff might be, he was constantly told he had no equity; often too he was sent to a court of common law, though the matter could more fitly be decided in equity …’.17

Page 6 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 15 W Odgers, Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, MacMillan, London, 1901, p 212. For a comprehensive survey, see W Holdsworth, A History of English Law, Little, Brown, Boston, 1924, Vols I and XV. 16 W Odgers, Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, MacMillan, London, 1901, p 203. 17 W Odgers, Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, MacMillan, London, 1901, pp 207–8, 221 ff. In Chancery the process of discovery was subverted in order to maximise legal fees; J Getzler, ‘Patterns of Fusion’ in P Birks (ed), The Classification of Obligations, Clarendon Press, Oxford, 1997, p 157.

1.13 Delay was exacerbated by a combination of two factors: litigation was liable to involve a multiplicity of proceedings and court appearances, and there were very few judges.18 Since an action could be defeated on procedural grounds alone, a great deal

Page 6 of effort would go into taking up procedural points.19 And their resolution would not necessarily put an end to the litigation, for a plaintiff who had been defeated on one form of action could frame its cause in another form and launch new proceedings, which could in turn be liable to intense procedural scrutiny by the opponent. Jurisdictional problems were also a cause of much delay. The repeated journeys to court that a case had to take delayed not only the case in hand but also contributed to delaying other cases by increasing the congestion in the courts. Needless to say, the amount of procedural activity which litigation involved greatly inflated the costs to the litigants.

18 In the early 1800s the King’s Bench consisted of the Lord Chief Justice and three other judges; the Exchequer included the Chief Baron and three Barons of the Exchequer; the Court of Chancery included the Lord Chancellor, who had many responsibilities in addition to his judicial duties, and the Master of the Rolls. It was only in 1815 that another Chancery judge was added, in the form of the Vice-Chancellor: W Odgers, Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, MacMillan, London, 1901, p 224. 19 Odgers tells of a case heard in 1830 in which there had been seven trials — three in the King’s Bench and four in Chancery — at the close of which the suit went up to the House of Lords: W Odgers, Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, MacMillan, London, 1901, p 225. Lord Eldon himself could take over 30 years to give judgment: J Baker, An Introduction to English Legal History, 3rd ed, Butterworths, London, 1990, pp 126–31; M Lobban, ‘Contractual Fraud in Common Law and Equity’ (1997) 17 Oxford Journal of Law and Society 441.

1.14 The Reports of the Judicature Commission, established under Lord Cairns, led to the enactment of the Supreme Court of Judicature Act 1873 (UK), which was amended by the Supreme Court of Judicature Act 1875 (UK). As noted by French CJ in Aon Risk Services Australia Ltd v Australian National University, the Judicature Acts were substantially reproduced in most of the Australian colonies,20 and continue to be in force in each state.21

20 Judicature Act 1876 (Qld) 40 Vict No 6; Supreme Court Act 1878 (SA) 41 & 42 Vict No 116; Supreme Court Act 1880 (WA) 44 Vict No 10; Judicature Act 1883 (Vic) 47 Vict No 761; Legal Procedure Act 1903 (Tas) 3 Ed VII No 19.New South Wales did not immediately enact the substance of the Judicature Acts until 1970 by the Supreme Court Act 1970 (NSW): see J Heydon, M Leeming and P Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Sydney, 2015, p 46, [2-125].

Page 7 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 21 Supreme Court Civil Procedure Act 1932 (Tas); Supreme Court Act 1935 (SA); Supreme Court Act 1935 (WA); Supreme Court Act 1970(NSW); Supreme Court Act 1986 (Vic); Supreme Court Act 1995 (Qld). The Judicature Acts were also reproduced in the Judiciary Act 1903 (Cth) and the Federal Court of Australia Act 1976 (Cth). For further discussion, see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 185; 258 ALR 14; [2009] HCA 27 at [12]

per French CJ.

Lack of court control and adversarial attitudes

1.15 In the Old System, the courts had little case management power to instruct the parties on how to conduct proceedings such as by giving directions on their own volition, and they had no facilities for monitoring the progress of litigation.22 As Lord Woolf observed, there was ‘no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts’.23 The court had no active role in the conduct of litigation, only a reactive role. The court’s function was limited to dealing with applications that parties made at a time of their choice and on matters of their choosing. This meant that it was for the parties to determine the

Page 7 issues in dispute, the witnesses to be called, the manner in which each party’s case is presented, and the way in which an opponent’s case is forensically challenged.24

22 Australian Law Reform Commission, Review of the Adversarial System of Civil Litigation: Rethinking the Federal Civil Litigation System, Issues Paper No 20, 1997, [2.29]. 23 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3 at [1]. 24 Victorian Law Reform Commission, Civil Justice Review, Report No 14, 2008, p 80.

1.16 Pre-trial applications to court on matters of procedure are known as interlocutory applications. A substantial proportion of interlocutory applications were concerned with either complaints about non-compliance by the opponent or with requests for leave to remedy irregularities. The Old System did not oblige parties to complain about irregularities or to object to their opponent’s applications for amendments or extensions. A defendant in receipt of a writ was not obliged to complain that it had been incorrectly served, and a plaintiff was not obliged to complain about late service of a defence. The confrontational nature of civil litigation, which has pervaded English civil dispute resolution since the Normans brought trial by combat to England, prevailed and litigants were unlikely to forgive the opponent’s lapse, especially if they stood to gain some advantage from objecting or if they could inflict some disadvantage on the other side. For example, a defendant with poor prospects of success was able to agitate a variety of interlocutory processes thereby delaying trial of the matter and depleting the plaintiff’s litigation resources.

1.17 An example of complete disregard for the court, the interests of the public, and the other parties to the proceedings, which was characteristic of the Old System version of adversarial justice, is Shannon v Lee Chun.25 The case concerned an appeal from the Supreme Court of New South Wales, which refused an application for a new trial brought in debt in circumstances where there had already been two trials. At the first trial, the plaintiff obtained a

Page 8 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure verdict for the amount claimed but that verdict was set aside by the Full Court, which granted a new trial. On the second trial, evidence was tendered by the plaintiff that advanced a very different kind of case. The defendant objected on the basis the evidence was irrelevant to the pleaded issues but the trial judge admitted the evidence, and gave permission to the plaintiff to make any amendments necessary to render the evidence admissible. As a result, the defendant was put to the expense of amending its defence. The plaintiff was successful on the second trial. The defendant appealed on grounds including that the plaintiff’s amendment was improperly made. Dismissing the appeal but awarding the defendant costs on the plaintiff’s application to amend, Barton J, with whom O’Connor and Isaacs JJ agreed, commented: I am of opinion that the verdict of the jury cannot be disturbed, and I think that there was power to allow the amendment, and Sly J., having had a very good opportunity of seeing whether the application for amendment was bona fide, must have been of opinion that it was, and we see no reason for coming to any other conclusion.26

25 Shannon v Lee Chun (1912) 15 CLR 257

.

26 Shannon v Lee Chun (1912) 15 CLR 257 at 265

per Barton J. For other examples of very late amendment cases,

see Horton v Jones (No 2) (1939) 39 SR (NSW)305 at 309 Bielewicz [1963] NSWR 482 at 484–7

per Jordon CJ; and Commissioner for Railways v

per Full Court.

1.18 One example from the Old System where the court had a reactive role and deferred to the parties to manage proceedings is Berrigan v McIver.27 The plaintiffs filed proceedings on 20 April 1970 against the defendant seeking a mandatory injunction requiring her to demolish hospital buildings built on land adjacent to land owned

Page 8 by the plaintiffs, and in breach of a restrictive covenant in favour of the plaintiffs. By April 1973, the defendant wanted to dispose of the land but was precluded from doing so as the plaintiff ’s claims had not been advanced or resolved. Notwithstanding repeated expressions to the plaintiffs of the defendant’s desire to have the action tried as soon as possible, the plaintiffs had not taken any procedural step for three years. On 29 November 1973, the defendant had no choice but to make application to have the claim struck out for want of prosecution. At first instance, a Master allowed the application. The plaintiff’s appeal was subsequently dismissed. Had the court had active case management powers, the defendant would not have been able to hold the defendant economically hostage for three years.

27 Berrigan v McIver [1974] VR 811

.

Harmful effects on access to justice

1.19 The willingness of the courts to forgive procedural defaults encouraged parties and their lawyers to be less than scrupulous about compliance with time limits and other obligations. Widespread non-compliance provided fertile ground for applications and counter-applications to court. It was not uncommon for litigation on points of procedure to absorb more time and resources than the adjudication of the substantive issues. This combination of the pre-

Page 9 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure eminence given to achieving justice on the merits in every case with party control of litigation led to a subversion of the system of litigation and obstructed access to justice.

1.20 The court was not concerned, by and large, with the effect that its decisions had on litigant resources or on the time it took to reach a final resolution. Nor did the court pay much attention to the effect that a tolerant approach to late compliance with process obligations had on general standards of timely compliance and, therefore, on the system of litigation as a whole. For example, courts paid scant regard to these matters when considering whether to allow extensions of time,28 whether to order extensive discovery,29 or allow late performance of process

Page 9 requirements.30 If a party was late in performing a procedural step, the miscreant could apply to court for an order validating the step, or the opponent could apply for an order setting it aside. If a procedural step had not yet been performed and was out of time, the party in question could apply for an extension of time. The same went for the time limits that were set by court orders. The courts were not concerned with the systemic impacts that the excessive investment of court resources had on those in the queue waiting for the court’s attention. Lastly, the courts lacked the means by which to take into consideration the implications that their approach to enforcing procedural rules and court orders had on access to justice and on the system of justice as a whole.31

28 Wiedenhofer v Commonwealth (1970) 122 CLR 172; [1972] ALR 244; [1970] HCA 54 ; Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126; David v National Panasonic (Australia) Pty Ltd (Supreme Court of New South Wales Court of Appeal, 23 September 1965, unreported), was an appeal allowed against an order made by a judge refusing an extension of time. In allowing the appeal, Kirby P said: ‘It is true that in recent years the courts have been more willing than once they were to exercise the power to extend time. The reduction in rigidities of court procedure and pleading are a major feature of changes in the administration of justice in recent years’; Lamshed v Lamshed [1962] SASR 190

.

29 Examples include Scott v City of Castlemaine [1972] VR 570 at 575–6

per Barber J; Wellcome Foundation Ltd v VR

Laboratories (Aust) Pty Ltd (1980) 29 ALR 261 at 264–5; 42 FLR 266 at 269–71 per Franki J. Wide discovery was ordered in early cases which adopted a liberal interpretation of the ‘train of inquiry’ test stated in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ. See also G Davies and S Sheldon, ‘Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale’ (1993) Journal of Judicial Administration 111 at 117–19;G Davies, ‘A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale’ (1996) 5 Journal of Judicial Administration 201 at 204. Also see Queensland Litigation Reform Commission, Annual Report 1995–1996, 1996, pp 2–4, 9–10; G Davies, ‘The Reality of Civil Justice Reform: Why we must abandon the essential elements of our system’, paper presented at 20th Australian Institute of Judicial Administration Annual Conference, Brisbane, 12–14 July 2002, pp 6–8. 30 Neville v Handley (1888) 14 VLR 270

; Rust v Barnes [1980] 2 NSWLR 726

.

31 See J Wood, ‘Case Management in the Common Law Division of the Supreme Court of New South Wales’ (1991) 1 Journal of Judicial Administration 71; L Olsson, ‘Civil Caseflow Management in the Supreme Court of South Australia — Some Winds of Change’ (1993) 3 Journal of Judicial Administration 3.

1.21 Otherwise useful processes could be undermined by an excessively adversarial culture. Lord Woolf pointed out that discovery was sometimes pursued without any regard to efficiency and economy, consuming vast resources for little benefit.32 Expert evidence, instead of assisting the court, could cause unreasonable delay and confusion at great expense to the parties. Even procedural reforms that were designed to promote efficiency could be

Page 10 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure undermined.33 The process of exchange of witness statements, Lord Woolf noted, presented an opportunity for the employment of ‘the draftsman’s skill often used to obscure the original words of the witness’, not infrequently at enormous expense.34 As a result, the cost of litigation could get out of all proportion to the value of the subject matter in dispute. The reason for the excess of cost and the long delays, Lord Woolf concluded, lay not so much in rules themselves as in the proliferation of ‘adversarial tactics’ which had resulted in the procedural tools ‘being subverted from their proper purpose’.35 Litigants were left free to complicate and protract the litigation process and the courts had become powerless to intervene.

32 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3 at [10]. 33 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3 at [11]. 34 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3 at [9]. 35 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3 at [8].

1.22 Not all cases going to trial involved extensive satellite litigation but a fair proportion did. It was not possible to know in advance the amount of procedural warfare that the litigation could involve. Parties considering litigation would therefore have to be prepared to spend large and unpredictable amounts of money and time. Increasingly, access to the courts became limited to litigants with deep pockets or to those who could rely on the taxpayer’s support.36

Page 10

36 See, for example, Birkett v James [1978] AC 297

; [1977] 2 All ER 801 (HL)

.

The emergence of the justice on the merits approach

1.23 Although the profession initially resisted change, including in Australia,37 once the reform culminating in the Judicature Acts was accomplished, the judiciary embraced the new approach to procedure with enthusiasm. Judges were no longer willing to allow pedantry and technicalities to get in the way of the real merits of the case.38 The judicial approach to litigation was based on the principle that doing justice on the merits of the case is more important than enforcing compliance with the rules or court orders.

37 Somewhat missing the point, the Cranston Report concluded that before ‘court control can be effectively introduced, a court must have the resources (not only judges but administrative staff as well) to exercise control and to dispose of the cases when the date for trial arrives’: R Cranston, P Haynes, J Pullen and I R Scott, ‘Delays in Efficiency in Civil Litigation’, Australian Institute of Judicial Administration, 1984, p 170. D A Ipp, ‘Reforms to the Adversarial Process in Civil Litigation — Part I’ (1995) 69 Australian Law Journal 705 at 710–11; Australian Law Reform Commission, Review of the Adversarial System of Litigation, Report No 89, 1990, at 1.48. See also E R Sunderland, ‘The English Struggle

Page 11 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure for Procedural Reform’ (1926) 39 Harvard Law Review 725 at 728; T Shelton, ‘The Drama of English Procedure’ (1931)17 Virginia Law Review 215. 38 Judges brushed ‘aside senseless technicalities in the same spirit (they) would a house fly’: T Shelton, ‘The Drama of English Procedure’ (1931) 17 Virginia Law Review 215 at 252.

1.24 One of the most cited judgments in this regard is the dissenting judgment of Bowen LJ in Cropper v Smith,39 in which his Lordship said: I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party … I have found in my experience that there is one panacea which heals every sore in litigation, and that is costs.40

It was not long before the justice on the merits approach infiltrated Australian jurisprudence. In Shannon v Lee Chun,41 Isaacs J reasoned: There is not only a power, but even an imperative duty cast by the legislature on the Court, to let no formality stand in the way of solid justice. The Court is directed to make every amendment, and at all times, so as to enable it to do what is right between the parties, and in the fairest and fullest manner possible to arrive at a determination of the substantial matter in dispute.42

39 Cropper v Smith (1884) 26 Ch D 700 40 Cropper v Smith (1884) 26 Ch D 700

. at 710–11

41 Shannon v Lee Chun (1912) 15 CLR 257

per Bowen LJ.

.

42 Shannon v Lee Chun (1912) 15 CLR 257 at 265

per Isaacs J.

1.25 The justice on the merits philosophy dominated civil procedure in Australia for a significant period of time. In Black v City of South Melbourne,43 the High Court considered an appeal from the Full Court of the Supreme Court of Victoria which allowed an appeal against the decision of a trial judge to permit the plaintiff to amend its statement of claim on the first day of trial. In allowing the appeal against the Full Court, the High Court held that allowing the amendment to the statement of claim was a proper exercise of judicial discretion:

Page 11   Questions of surprise and disadvantage because of a change in course in proof can almost always be met by adjournment and appropriate orders as to costs. It would certainly have been so in this case.44

Page 12 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure

43 Black v City of South Melbourne (1964) 11 LGRA 179

.

44 Black v City of South Melbourne (1964) 11 LGRA 179 at 197

per Barwick CJ.

1.26 One of the most often cited cases on the justice of the merits approach is the English case of Birkett v James.45 The plaintiff claimed to be owed £1,000,000 from the defendant under a series of oral agreements. An order was made for trial of preliminary issues to commence on 26 July 1973. However, the plaintiff ’s solicitors refused to take any further steps in the action until they were paid considerable sums of money owed to them in fees by the plaintiff. The plaintiff was unable to pay them. In consequence, the plaintiff did not set the action down by 26 July 1973. In December 1974,the plaintiff obtained legal aid and instructed new solicitors. However, the plaintiff ’s solicitors were unable to obtain the relevant documents from the plaintiff’s former solicitors until 15 July 1975 when the court ordered them to be delivered. On 23 July 1975, the plaintiff ’s new solicitors gave notice of intention to proceed but on 2 October 1975 the defendant made an application to dismiss the action for want of prosecution. A registrar refused to dismiss the action but a judge in chambers allowed the appeal. The Court of Appeal dismissed an appeal by the plaintiff and the plaintiff appealed that decision to the House of Lords, which allowed the appeal and set aside the order dismissing the action. It was not sufficient that there had been noncompliance with process requirements to dismiss the action, as process requirements were reasoned to not be punitive and so should not deny justice on the merits. Lord Diplock explained how the power to dismiss an action for want of prosecution should be exercised:46 The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e g disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.47

45 Birkett v James [1978] AC 297

; [1977] 2 All ER 801

.

46 Birkett v James [1978] AC 297

; [1977] 2 All ER 801 (HL)

47 Birkett v James [1978] AC 297

at 318

.

; [1977] 2 All ER 801 at 805

(HL) per Lord Diplock.

1.27 Similar decisions continued to be made in Australia on a routine basis. In Rust v Barnes,48 an injured plaintiff changed solicitors, which caused it to fail to serve its statement of claim within two years from the date of filing as required by r 7(1) of the Supreme Court Rules 1970 (NSW). As such, it amounted to a ‘failure to comply with the requirements of the Supreme Court Act or the rules’ and fell to be treated as an ‘irregularity’ under s 81(1)(a) of the Act. Dismissing an application made by the defendant to set aside service and the statement of claim, a Master of the Common Law Division of the Supreme Court of New South Wales held:

Page 13 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure

Page 12   The service, albeit irregular, should not be set aside. The irregularity should be cured. I do not consider that injustice to the defendant would be occasioned thereby. So far as the defendant on the record is concerned, that is the driver of the other vehicle, he is protected by his third-party insurance.49

On appeal, Yeldham J agreed.

48 Rust v Barnes [1980] 2 NSWLR 726

.

49 Rust v Barnes [1980] 2 NSWLR 726 at 737

per Master Allen.

1.28 GSA Industries Pty Ltd v NT Gas Ltd50 also concerned an appeal against case management decisions. By the consent of the parties, a timetable had been agreed for the hearing of an assessment of damages. In due course, the trial judge was made aware of various problems associated with the corporate structure of the plaintiff which caused it to give untimely instructions to its solicitors. An application was made by the plaintiff to relist the opponent’s claim for damages. The trial judge refused the application. In allowing the appeal, Kirby J reasoned that the rules of court ‘are there to serve the interest of justice’, and further said: They are not designed to lock judges or members of tribunals, referees, arbitrators or others into an inflexibility which prevents the consideration of the merits of the particular case and frustrates the achievement of substantial justice as the special circumstances of each case require.51

50 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710

.

51 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 714

per Kirby J.

1.29 In the further illustrative case of Howarth v Adey,52 the Full Court of the Supreme Court of Victoria allowed an appeal against a trial judge who had refused an application to allow the plaintiff to amend its statement of claim on the sixth day of trial. The proposed amendment would have enlarged the case such that a cause of action was sought to be included. In allowing the appeal and for the amendment to be made, Winneke P, with whom Callaway JA agreed, reasoned that justice on the merits was the paramount consideration: … notwithstanding the potential impact which an application to amend the pleadings might have upon the court’s management practices, the court must, nevertheless in my view, be cautious to ensure that the rules and practices of the

Page 14 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure court are used in aid of doing justice to the parties rather than become an inflexible barrier to its achievement.53

52 Howarth v Adey [1996] 2 VR 535

.

53 Howarth v Adey [1996] 2 VR 535 at 544

per Winneke P.

1.30 Queensland v JL Holdings Pty Ltd is regarded as a seminal case on the justice on the merits approach in Australia.54 The case was an appeal against a decision of a judge to allow the defendant to amend its defence on the basis that it had recently discovered inconsistencies between two copies of the same lease in circumstances where the lease was in contention.The judge refused the application on the basis that it was made only six months out from the date which had been fixed for trial and an amendment would cause the trial date to be abandoned. In allowing the appeal,

Page 13 Dawson, Gaudron and McHugh JJ of the High Court of Australia proffered the following obiter dicta: Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.55

54 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 . See also the useful discussion of JL Holdings in C Colbran, P Spender, R Douglas and S Jackson, Civil Procedure: Commentary and Materials, 6th ed, LexisNexis Butterworths, Sydney, 2015, pp 61–6. 55 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at [155]

per Dawson, Gaudron and McHugh JJ.

1.31 Accordingly, procedural irregularities no longer rendered proceedings void. Instead, the court had discretion to allow the defect to be put right on terms that the court thought fit, which was ordinarily through an order for costs.

Key procedural reforms The Woolf Reforms in 1996

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1.32 To understand how the Australian jurisdictions came to adopt versions of the overriding objective, one must first look to the development of the overriding objective in England. Perhaps the most influential work for Australia in this regard was the Woolf Reforms. In an attempt to overcome the inefficiencies of the Old System in England, Lord Woolf MR recommended in his Final Report on Access to Justice in 1996 the adoption of an overriding objective which embodies ‘the principles of equality, economy, proportionality and expedition’.56 The Civil Procedure Rule Committee in the UK accepted this recommendation by placing the overriding objective at the heart of the Civil Procedure Rules 1998 (UK) (CPR). CPR 1.1(1), declared, at the time: ‘These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.’ CPR 1.1(2) expanded on the notion of ‘dealing with cases justly’ such that it included ‘so far as is practicable’ ‘(a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the cases in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; (d)ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.’ CPR 1.2 required the court to give effect to the overriding objective when it exercised any power given to it under the CPR or interpreted any CPR.

56 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Section I at [8].

1.33 A further key element of the CPR 1998 (UK), following the Woolf Reforms, was that control over litigation was transferred from the parties to the court, thereby enabling the court to determine the best way of utilising its resources in order to dispose fairly of disputes. The function of the overriding objective is to guide the court in exercising both its new case management powers and its traditional discretion in matters of procedure.

Page 14

1.34 Since Lord Woolf’s Access to Justice Report, each jurisdiction in Australia has looked to the reforms introduced in England and Wales for ways to optimise the efficiency of civil justice. At the heart of the optimisation of English civil procedure was the development of the overriding objective, which provides the underlying philosophical foundation of civil procedure.

Australian Law Reform Commission Report 89 in 2000

1.35 The Australian Law Reform Commission (ALRC) completed a review of the federal civil justice system in 2000,57 which was the culmination of a large four-year inquiry that followed the publication of the Woolf Reforms. In particular, the Commission was directed to consider ‘the need for a simpler, cheaper and more accessible legal system’.58 The Commission noted that an ‘accessible justice system implies dispute resolution processes that are widely available, explicable and affordable’, which led it to reason that access to justice:

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… can only ever mean, in broad institutional and systemic terms, relatively equitable access to the legal process. Access to the system is no guarantee of a successful outcome from the process, and thus is no guarantee of litigant satisfaction in all cases.59

The ALRC’s reasoning that equitable access to justice requires the legal process to be just, proportionate and timely was consistent with recommendations made during the Woolf Reforms.60 So influential were the Woolf Reforms that the ALRC adopted Lord Woolf’s view that the success of procedural reforms relies in substantial part on changing the legal culture to make it less bound up with notions of adversarialism and tactical game play, and focused its recommendations to attempt to reform this culture.61 Unfortunately, many of the recommendations were for students, lawyers, tribunal members and judges to be further educated rather than to recommend reform which would deal with the root cause of the problems.

57 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000. 58 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, Vol 1, p 8. 59 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, Vol 1, p 90. 60 Although the simplicity of the tripartite requirements of the overriding objective was not free from criticism. For example, see Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, Vol 1, p 91. 61 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, Vol 1, at 129, citing Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 3.

The Jackson Review in 2009

1.36 The CPR 1998 (UK), including Lord Woolf MR’s overriding objective, was revisited a decade later by Sir Rupert Jackson in his Review of Civil Litigation Costs.62

Page 15 In his Preliminary Report, Sir Rupert Jackson found that, ‘[d]espite the general success of the Woolf reforms, the costs of civil litigation continued to rise’ and ‘over the last decade there have been mounting concerns about the costs of civil justice’.63 To address this problem the Jackson Report draws attention to the central part played by the notion of proportionality, which now pervades many areas of the law, both substantive and adjectival. The essence of proportionality is that the ends do not necessarily justify the means. The law facilitates the pursuit of lawful claims and defences, but only to the extent that the means used for their pursuit are reasonably proportionate to the cost that they involve and to the burden that they impose on the court, on other litigants, and on the public generally.64 Sir Rupert stressed that ‘the principle of proportionality requires that the costs burden cast upon the other party should not be greater than the subject matter of the litigation warrants’.65 Following the Jackson Final Report, the English Civil Procedure Rule Committee modified CPR 1.1(1) so that it now provides: ‘These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.’ CPR 1.2 was also expanded such that ‘dealing with a case justly and at proportionate cost’ now includes the additional requirement of ‘(f) enforcing compliance with rules, practice directions and orders’.66

Page 17 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 62 Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report (Jackson Preliminary Report), 2009; Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report (Jackson Final Report), 2010. 63 Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report (Jackson Preliminary Report), 2009, at [1.2] 1, [1.3] 2. 64 Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (Jackson Final Report), 2010, at [5.3] 36. 65 Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (Jackson Final Report), 2010, at [5.4] 36. 66 Lord Dyson MR has coined the terms ‘Mark I’ overriding objective and ‘Mark II’ overriding objective to describe the Woolf reform version of the overriding objective and the Jackson review version of the overriding objective,respectively: Lord Dyson MR, ‘The Application of the Amendments to the Civil Procedure Rules: 18th Lecture in the Implementation Programme’, speech delivered at the District Judges’ Annual Seminar, Judicial College, 22 March 2013.

Australian Productivity Commission Report in 2014

1.37 In Australia, each state and territory’s jurisdiction has its own unique civil procedure rules. However, each jurisdiction has adopted a version of the overriding objective following the Woolf Reforms. The Productivity Commission in its Inquiry Report on Access to Justice Arrangements identified, as the ‘main objective’ of Australia’s civil justice system, to improve the wellbeing of Australians by ‘providing access to least cost avenues for dispute resolution and facilitating the quick resolution of disputes at the earliest opportunity; enabling the provision of a range of legal services that are proportionate to the problems experienced, easy to access and understand, and treat people fairly; promoting affordable services, so that access to justice is equitable regardless of people’s personal, social, or economic circumstances and background’.67

67 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, p 137.

1.38 As many Australian lawyers tend to practise in more than one Australian jurisdiction, a pan-Australian understanding to civil procedure is necessary. In the context of the overriding objective this is particularly so as each jurisdiction in Australia has embraced its own version of the overriding objective. Despite the various

Page 16 formulations, it is submitted that the same core philosophy of the overriding objective has been adopted in each Australian jurisdiction. The overriding objective embodies the philosophy that civil justice consists of three imperatives: arriving at judgments that are correct in fact and in law, by means of proportionate use of resources, and within a reasonable time. This stands in contrast to the Old System, preceding the Woolf Reforms, whereby only the first of the imperatives mattered, that of doing justice on the merits no matter how much it cost and how long it took to reach a final resolution. In both Australia and England today, the goal of justice on the merits is overlaid with an overriding objective which establishes a procedural discipline designed to enable courts to do justice by the use of no more than proportionate resources and within a reasonable time. This system reflects a three-dimensional concept of procedural justice.

1.39 Given the pivotal role of the overriding objective in the interpretation of civil procedure rules, in the exercise of judicial discretion, and in judicial use of case management powers, it is important to elaborate at the outset its

Page 18 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure components and their role in the general scheme of litigation. It should be stressed, though, that the full practical implications of the overriding objective can only emerge from a detailed examination of the various litigation processes. The overriding objective will therefore be kept in view throughout this book and referred to from time to time in its proper context.

The overriding objective in Australia   In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.68

1.40 In different stages and at different times, each jurisdiction in Australia has adopted a version of the overriding objective. These implementations largely occurred during a similar era in each jurisdiction where the courts began to embrace case management frameworks.69 The Productivity Commission’s Inquiry Report on Access to Justice Arrangements identifies an anomaly whereby some jurisdictions implement the overriding objective by placing the onus on the parties, while others place the onus on the courts.70 There are also jurisdictions which place the onus to give effect to the overriding objective on both the parties and the court. Some jurisdictions use statutes to implement the overriding objective while others use the rules of court. What is clear, however, is that the same three-dimensional concept of procedural justice is evident in each jurisdiction, which mandates the just, expeditious and most economical procedure to be adopted to resolve civil disputes.

Page 17

69 S Colbran, P Spender, R Douglas and S Jackson, Civil Procedure: Commentary and Materials, 6th ed, LexisNexis Butterworths, Sydney, 2015, p 53. 70 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, p 422 [12.1].

The High Court of Australia

1.41 The High Court of Australia does not have in its rules a central provision on the overriding objective. However, on the hearing of a summons for directions a justice of the High Court ‘may give such directions for the further conduct of the proceeding as appear necessary and desirable for the just and efficient disposition of the matter’.71 The element of efficiency requires the court to consider the time and cost ramifications of its directions in its discharge of its case management functions. It is noteworthy that the onus is placed on the court and not the parties. One reason why the High Court does not need in its rules an all-encompassing overriding objective is because it is not properly conceived of as a trial court and its case management function is minimal. The High Court is Australia’s highest court of appeal and as such it will hear appeals from other jurisdictions within Australia, which jurisdictions have decided cases in the discharge of their own version of the overriding objective.

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71 High Court Rules 2004 (Cth) r 27.06.3. See also r 32.01.3.

The Federal Court of Australia

1.42 The overriding objective is well entrenched into the civil procedure of the Federal Court of Australia, though it is referred to as ‘the overarching purpose’ in the Federal Court of Australia Act 1976 (Cth). So fundamental is the overriding objective that the Parliament of Australia amended the Federal Court of Australia Act 1976 (Cth) to to mandate the court to have regard to its principles. Section 37M is entitled ‘the overarching purpose of civil practice and procedure provisions’ and subs (1) provides that ‘the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’. Section 37M(2) states that, without limitation, the ‘overarching purpose’ includes ‘the just determination of all proceedings before the Court’, ‘the efficient use of the judicial and administrative resources available for the purposes of the Court’, ‘the efficient disposal of the Court’s overall caseload’, ‘the disposal of all proceedings in a timely manner’, and ‘the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute’. It is mandatory for the Federal Court to interpret and apply the Federal Court Rules 2011 (Cth), and exercise any power conferred or duty imposed on it by the rules, ‘in the way that best promotes the overarching purpose’.72 In any event, s 37P details that case management functions are required to be guided by the overarching purpose.

72 Federal Court of Australia Act 1976 (Cth) s 37M(3) and 37M(4).

Australian Capital Territory

1.43 Section 5A(1) of the Court Procedures Act 2004 (ACT) provides that the ‘main purpose’ of civil procedure in the Australian Capital Territory is to facilitate the ‘just resolution of disputes’ according to law; and as quickly, inexpensively and

Page 18 efficiently as possible’. The ‘main purpose’ includes a number of objectives, such as ‘the just resolution of the real issues in civil proceedings; the efficient use of court resources,including administrative resources; the efficient disposal of a court’s overall caseload; the timely disposal of civil proceedings; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute’. Section 5A(3) specifies that civil procedure provisions must be interpreted and applied, and any duty imposed on them including the power to make rules, must be exercised or carried out in the way that best promotes the main purpose.An onus is placed on the parties to a civil proceeding to assist the court to achieve these objectives.73

73 Court Procedures Act 2004 (ACT) s 5A(4).

1.44

Page 20 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure The Court Procedures Rules 2006 (ACT) contain various supplementary rules requiring the ‘main purpose’ to be adhered to. For example, r 2152(3)(e) provides that in the exercise of the discretion to grant leave to an enforcement debtor to make an application for an instalment order, the court must have regard to the ‘public interest’ in ‘enforcing orders justly, efficiently and quickly’.74 It is submitted that these supplementary rules are not required as s 5A(3) requires the ‘main purpose’ to be the guiding principle in the making of any order.

74 See also Court Procedures Rules 2006 (ACT) rr 2154(1)(f), 2303(1)(g) and 2352(1)(g).

New South Wales

1.45 In a similar way, New South Wales has enacted legislation to implement the overriding objective into its civil procedure. Section 56(1) of the Uniform Civil Procedure Act 2005 (NSW) provides that the ‘overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings’. The onus is placed on the court to ‘give effect to the overriding purpose’ when it exercises or interprets any power given to it by the Act or by rules of court.75

75 Uniform Civil Procedure Act 2005 (NSW) s 56(2).

1.46 The overriding purpose is also to be furthered in the case management functions of New South Wales courts. In particular, s 57 requires proceedings to be managed having regard to ‘the just determination of the proceedings; the efficient disposal of the business of the court; the efficient use of available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties’.76 Section 58 of the Act does, however, require the court ‘to follow the dictates of justice’ when making an order or direction for the management of proceedings.77 To determine what the ‘dictates of justice’ are, the court may have regard to a number of considerations which include the overriding purpose, ‘the degree of difficulty or complexity to which the issues in the proceedings give rise’; ‘the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities’; ‘the degree to which any lack of expedition

Page 19 in approaching the proceedings has arisen from circumstances beyond the control of the respective parties’; ‘the degree to which the respective parties have fulfilled their duties under section 56(3)’; ‘the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings’;and ‘the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction’. It has been held that s 56 and s 57 are ‘statutorily compulsory’ considerations such that a court will err if it fails to take them into account.78

76 Uniform Civil Procedure Act 2005 (NSW) s 57(1). 77 Uniform Civil Procedure Act 2005 (NSW) s 58(1).

Page 21 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 78 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38]

per Full Court.

1.47 The Act has a standalone provision for the elimination of delay. Section 59 provides that, in any proceedings, ‘the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required’. There does not appear to be any consequence for departing from s 59. However, it is submitted s 59 is repetitive of the s 56 reference to ‘quick’.

1.48 Section 60 of the Act is designed to ensure that only proportionate costs are expended at each stage of the proceedings. It does this by mandating that ‘the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute’.

Northern Territory

1.49 The overriding objective in the Northern Territory is contained in the Supreme Court Rules (NT). Rule 1.10 provides that ‘in exercising any power’ the court ‘shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined; and may give any direction or impose any term or condition it thinks fit’. It is not clear from the face of the rules whether the court is able to make any order it thinks fit in the attainment of substantive justice if it is inefficient and uneconomical. It would appear that this rule is capable of this construction and it is submitted orders of this nature should be avoided for they would be the antithesis of the overriding objective.

Queensland

1.50 Queensland does not have a legislative regime implementing the overriding objective. Rather, the Uniform Civil Procedure Rules 1999 (Qld) entitled ‘Philosophy —overriding obligations of parties and court’ provides that the purpose of the rules is ‘to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense’.79 Rule 5(2) continues and states that the rules are to be applied by the courts ‘with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules’. Perhaps going further than other rules of civil

Page 20 procedure, r 5(3) implies that parties to proceedings have undertaken ‘to the court and the other parties to proceed in an expeditious way’. By r 5(4), the court is able to impose sanctions for non-compliance with a rule or order of the court. For example, the court may dismiss a proceeding or impose a costs sanction if there is a breach of the implied undertaking.

Page 22 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 79 Uniform Civil Procedure Rules 1999 (Qld) r 5(1).

South Australia

1.51 Like Queensland, the overriding objective in South Australia is only implemented by the Supreme Court Civil Rules 2006 (SA). Rule 3 provides that the objects of the rules are ‘to establish orderly procedures for the just resolution of civil disputes; to facilitate and encourage the resolution of civil disputes by agreement between the parties; avoid all unnecessary delay in the resolution of civil disputes; to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and to minimise the cost of civil litigation to the litigants and to the State’. Rule 116 also provides that the court ‘has the power to manage litigation to the extent necessary to ensure that it is conducted fairly, and as expeditiously and economically as is consistent with the proper administration of justice’.

Tasmania

1.52 The overriding objective in Tasmania is found in r 414A of the Supreme Court Rules 2000 (Tas). The onus is placed on the court to ensure the overriding objective is complied with. Rule 414A provides that the ‘overarching purpose’ of case management is ‘to ensure that proceedings are conducted and resolved justly and efficiently’. Rule 415 provides for an initial directions hearing before a judge with the purpose of the hearing ‘to eliminate any lapse of time, from the commencement of a proceeding to its final determination, that is not reasonably required for the fair and just determination of the outstanding issues between the parties; and the preparation of the case for trial’. By r 415(3), a judge is able to make any order to ensure the proceeding is ‘conducted and resolved justly and efficiently’. However, pursuant to r 415(4), a judge may take into account in making such an order ‘the most suitable manner in which to deal with the proceeding, in a way that is proportionate to the amount of money involved; the importance of the proceeding; the complexity of the issues; the financial position of each party; the most efficient manner in which to deal with the proceeding which will not prevent the fair and just resolution of the dispute; and the allocation of court resources taking into account other demands imposed on those resources by other proceedings’.

Victoria

1.53 Victoria also has a dual regime where statute is supplemented by the rules of court to implement the overriding objective. One of the main purposes of the Uniform Civil Procedure Act 2010 (Vic) is to ‘facilitate the just, efficient,timely and cost effective resolution of the real issues in dispute’.80 The obligation on the court is to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation

Page 21 of those powers.81 Section 9 of the Act provides that in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the just determination of the civil proceeding; the public interest in the early settlement of disputes by agreement between the parties; the efficient conduct of the business of the court; the efficient use of judicial and administrative resources; minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for the fair and just determination of the real issues in dispute, and the preparation of the case for trial; the timely determination of the civil proceeding;dealing with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute, and the amount in dispute.

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80 Uniform Civil Procedure Act 2010 (Vic) s 7(1). 81 Uniform Civil Procedure Act 2010 (Vic) s 8(1).

1.54 The Act is supplemented by the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Rule 1.14 provides that in exercising any power under the rules the court ‘shall endeavour to ensure that all questions in the proceedings are effectively,completely, promptly and economically determined’. Although r 1.15 states that the court ‘may give any direction or impose any term or condition it thinks fit’, the court is bound by s 1(1)(c) of the Act in the discharge of those functions.

Western Australia

1.55 Western Australia’s overriding objective is also contained in its rules. Rule 4A of the Rules of the Supreme Court 1971 (WA) provides that ‘the practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial’. Rule 4B details the use and objects of case flow management. The objects require, ‘promoting the just determination of litigation; disposing efficiently of the business of the Court; maximising the efficient use of available judicial and administrative resources; facilitating the timely disposal of business; ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party’. Rule 4B(2) requires the rules to be interpreted and applied in accordance with the abovementioned objects.

68 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; 258 ALR 14; [2009] HCA 27 at [113]

per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

Understanding the overriding objective The three-dimensional concept of justice

1.56 Each Australian jurisdiction has adopted a civil procedural code which articulates general principles that take precedence over individual rules. The rules, Lord Woolf MR stressed, are merely the means by which the courts and litigants are

Page 22 ‘guided to the just resolution of the case’.82 Individual rules offer detailed directions for the steps to be taken in the course of litigation, but their success in achieving a sensible and just resolution depends upon ‘the proper enforcement of the obligations’ and the ‘behaviour of the parties when conducting litigation’ as each has an

Page 24 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure influence on the timeliness and cost of civil proceedings.83 The overriding objective represents both a philosophy of adjudication and a principle of interpretation that requires the court to construe the rules of procedure accordingly. The overriding objective is, therefore, fundamental to the entire civil justice system, because without it civil procedure could easily revert back to the form it had under the Old System where access to justice was plagued by excessive and obstructive adversarial behaviour, delay, and unpredictable and disproportionate expense.

82 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Section 1 at [8]. 83 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, p 419.

1.57 The seminal authority on the overriding objective in Australia is Aon Risk Services Australia Ltd v Australian National University.84 There, on the third day of a four-week trial of a proceeding which had been on foot for two years, ANU applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against Aon. At first instance and on appeal, ANU’s application for an adjournment was granted because the court considered that it was bound to follow the High Court in JL Holdings discussed above at 1.30. The High Court explained its decision in JL Holdings and held that the amendment should not have been allowed. French CJ said: Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried. … It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.85

Page 23 Gummow, Hayne, Crennan, Kiefel and Bell JJ said further: Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. …

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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. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.86

The decision in Aon has left a lineage of cases in its wake.87

84 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

85 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [5],[30]

per French CJ.

86 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [98],[111]

per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

87 A lineage of authorities which apply Aon is listed in C Colbran, P Spender, R Douglas and S Jackson, Civil Procedure: Commentary and Materials, 6th ed, LexisNexis Butterworths,Sydney, 2015, p 67.

1.58 The court’s commitment to the overriding objective in Aon illustrates the paradigm shift in Australia. The decision in Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd88 goes a step further as it shows how the reasoning in Aon can be applied to various procedural circumstances to encourage the avoidance or expedition of satellite disputes and discourage overly adversarial behaviour.89 The facts are as follows. During the disclosure process, solicitors acting for eight of the 10 Expense Reduction plaintiffs (Expense Reduction) accidentally sent to the solicitors acting for the three defendants (Armstrong) several documents on compact discs that should have been marked as privileged and not sent. The documents were in the nature of advice between Expense Reduction and their solicitors. At first instance, Bergin CJ found that nine of the 13 disputed documents had been inadvertently disclosed and ordered that the compact discs containing the nine documents be returned to Expense Reduction’s solicitors so that they could be removed from the compact discs.90 After their removal, the discs containing the

Page 24 disclosure documents were to be provided to Armstrong’s solicitors. However, on appeal, the New South Wales Court of Appeal held that there was no obligation on Armstrong to preserve Expense Reduction’s confidentiality in the documents.91 The High Court held that there had been no waiver of privilege by Expense Reduction, and that the appropriate orders were for the return of the compact discs, for the deletion of any copies of the documents made by Armstrong’s solicitors,and for Expense Reduction’s solicitors to be permitted to amend the List of Documents to remove reference to the documents. On the application of the overriding objective, the High Court said: The evident intention and the expectation of the [Court Procedure Act 2005 (NSW)] is that the courts use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in the circumstances … The focus is upon

Page 26 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.92

Expense Reduction makes clear the court’s attitude towards unduly technical, satellite litigation and that the court will resolve such a dispute by using the philosophy of the overriding objective of dealing with cases fairly, expediently and efficiently.

88 Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46

.

89 In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [24]

, French CJ explained that the common law adversarial system was ‘qualified by changing practice’.

90 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393

per Bergin CJ.

91 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348; [2012] NSWCA 430

.

92 Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46 at [56]–[57]

per the court.

1.59 The overriding objective is aimed at doing or achieving justice. Doing justice is the goal of any enlightened system of civil justice. However, the notion of ‘doing justice’ is capable of a variety of interpretations. Under the Old System, the notion of doing justice was shackled to a justice on the merits philosophy whereby the need to arrive at a judgment that was correct as a matter of fact and law was of such importance that it triumphed over all other considerations. This resulted in high and disproportionate costs and in excessive delay which, in turn, corroded the court’s ability to provide effective remedies for wrongs and thereby reduced access to justice. The overriding objective broke that tradition by directing that justice on the merits is not the sole overarching principle. In addition to justice on the merits, there are two other vital procedural imperatives: deciding cases within a reasonable time, and using no more than proportionate resources to resolve cases.93 The function of the overriding objective is to guide the court in managing individual cases. It is the court’s responsibility, together with the parties, to chart the course of litigation and it must do so by means of three points of reference: justice on the merits, proportionality in the use of resources, and timely adjudication.

Page 25

93 The issues of time and cost contribute to dissatisfaction with the judicial system: K Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92 Australian Law Journal 32 at 33.

1.60 The court is free to implement the overriding objective by any means that it considers appropriate in the particular circumstances. As far as the listed goals are concerned, the court is required to achieve them only insofar as it is

Page 27 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure practicable.The principles of proportionality of cost and expedition are quite different requirements of justice from those embodied in fundamental rules of procedural fairness. The requirements of a fair trial are timeless and universal in a judicial context, such as impartiality, publicity, and the right to be heard, and these must be observed regardless of considerations of economy, efficiency or, indeed, whether they help or hinder the ascertainment of the truth. That is not to say that such principles never make concession to practical necessity. Occasionally, publicity must give way to practical limitations of space, or to the interests of children. The right to be heard has to be temporarily suspended in situations of urgency such as in ex parte applications for urgent interlocutory injunctions. That said, the fact remains that standards of procedural fairness are ends in themselves, not means to achieving some other ends.94 Unlike the principles of procedural fairness, the goals of proportionate and expeditious resolution of disputes do not impose precise duties on the court or confer well-defined rights or obligations on litigants. The goal of using proportionate resources cannot be easily translated into a rule that assigns a predetermined amount of judicial time to the resolution of every dispute. Rather, these imperatives call for practical measures to be adapted to the specific circumstances of the case at hand. What might be reasonable expedition and reasonable allocation of resources in a complex case might be unacceptable delay and excessive use of resources in a simpler dispute. Likewise, the ascertainment of truth necessitates the adoption of practical factdependent means. Truth is an end that can only be obtained by means which are adapted to the particular circumstances of the dispute and which are, therefore, case-dependent.

94 R Summers, ‘Evaluating and Improving Legal Processes — A Plea for “Process Values”’ (1974) 60 Cornell Law Review 1; J Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’ (1981) 61 Boston Law Review 885.

1.61 It might be argued that the aim of ensuring that the parties are on an equal footing looks beyond matters of practical efficiency and invokes general principles of procedural fairness. Such a general interpretation would add little, because fundamental standards of fairness have always been part of Australian civil procedure. It is more purposeful to interpret the overriding objective in Australia’s civil jurisdictions as seeking to ensure fairness to both parties through case management.This means, for example, that the court should not direct a party to do something that would place it in an unwarranted procedural disadvantage when compared to another party. It is not difficult to see why it would be wrong to give case management directions that disadvantage litigants of limited means, such as by requiring excessive expert evidence to be obtained in a relatively simple case.

1.62 Although the overriding objective represents the first express articulation of the resource and temporal dimensions of justice in rules of procedure, its principles have been embedded in our law for centuries. The right to timely adjudication,for example, is found in the Magna Carta, which dates back to the thirteenth century: ‘To no one

Page 26 will we sell, to no one deny or delay right or justice’.95 While Jeremy Bentham saw justice on the merits as the ‘direct end’ of justice, he stressed that justice also entailed the ‘collateral ends’ of ‘the avoidance of unnecessary delay, vexation, and expense’.96 Similarly, the courts were not completely oblivious to the connection between justice and resources. In Pearse v Pearse,97 Knight Bruce VC observed: The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is open to them … Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.98

Page 28 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure In the vast majority of cases, however, considerations of time and resources played either no or a limited role in the way that the courts made decisions before the implementation of the overriding objective.99 The need for timely adjudication found expression only in certain corners of procedure. For instance, the grant of interim injunctions was guided, and still is, by the need to protect rights from being irrevocably harmed pending final adjudication.100 Courts were willing to strike out claims where excessive delay undermined their ability to dispose fairly of the action.101 However, by and large, parties were free to complicate and protract litigation. Resource considerations were likewise limited to marginal areas.

95 Magna Carta 1297 c 9 (Regnal 25 Edw 1 cc 1929) at Ch 40 (emphasis added). The Magna Carta dates back to 1215. 96 J Bentham, Rationale of Judicial Evidence: Specially applied to English practice, Hunt and Clarke, London, 1827, Vol 1, p 34. 97 Pearse v Pearse (1846) 63 ER 950

.

98 Pearse v Pearse (1846) 63 ER 950 at 957 Morgan (1873) 8 Ch App 361 at 368 (PC) at 307 per Lord Macnaughten.

per Knight Bruce VC. This passage was cited with approval in Minet v per Lord Selbourne LC and also in Macintosh v Dunn (1908) 6 CLR 303

99 Civil procedure was famously described by Collins MR as nothing more than the ‘handmaiden of justice’: Re Coles and Ravenshear [1907] 1 KB 1

at 4

.

100 Millars’ Karri & Jarrah Co Ltd v Holman (1907) 9 WALR 125 (1968) 118 CLR 618; [1968] ALR 469; [1968] HCA 1 101 Galka v O’Connor [1965] VR 361

; Beecham Group Ltd v Bristol Laboratories Pty Ltd

.

; Brown v Nominal Defendant [1972] 2 NSWLR 207

.

1.63 Although the overriding objective does not invest the court with specific powers, it establishes a framework for decision-making in matters of procedure. The novelty of this primary principle consists of turning the temporal and resource dimensions of justice from abstract notions into working principles of practical consequence. The overriding objective enables the court to accommodate all three imperatives of justice in a coherent manner. It may, therefore, be seen as representing a comprehensive procedural discipline dominated by three goals: first, court decisions must act in accordance with the correct facts and the law; secondly, litigation must be conducted by a proportionate use of the court’s and litigants’ resources; and,thirdly, a final resolution must be achieved with reasonable expedition. It cannot be overemphasised that dealing with cases justly does not only mean, as it did in the past, reaching a result which is correct as a matter of fact and of law. Dealing with cases justly is a composite

Page 27 principle which consists of all three imperatives just mentioned, each of which forms part of the whole. Justice is therefore a three-dimensional concept founded on the criteria of truth, time and resources.

The imperative of ascertaining the truth

1.64 Generally, the overriding objective does not expressly mention the determination of truth as one of the aims of adjudication. This is not surprising because ascertaining the truth by the application of the law to the facts is so fundamental to the function of the court that it needs not be mentioned. It is not the function of the rules of procedure to establish the court’s basic constitutional purpose: to decide cases in accordance with the facts and applicable law.102 Sir William Blackstone wrote that a subordinate right of every person ‘is that of applying to the

Page 29 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure courts of justice for redress of injuries. Since the law is … supreme arbiter of every man’s life, liberty, and property,courts of justice must at all times be open to the subject, and the law be duly administered therein’.103 The direct aim of the civil process, Bentham thought, was to obtain rectitude of decision, by which he meant the correct application of the law to the true facts.104 It is therefore obvious that in order to deal with a case justly the court must, amongst other things, reach a decision in accordance with the law and the true facts. It must, in other words, give the parties what is due to them under the law. As Lord Denning MR observed, ‘the primary duty of the courts is to ascertain the truth by the best evidence available’.105 In the Federal Court of Australia, Sheppard J said that judges must act ‘consistently with their primary duty to administer justice’.106 The right of access to court for the purpose of enforcing rights is derived from a general constitutional principle and not from the rules of procedure. The function of the overriding objective is to provide the court with adequate means of fulfilling its constitutional function of doing substantive justice.

102 W Twining, Rethinking Evidence, Blackwells, Oxford, 1990, p 71. 103 Sir William Blackstone, Commentaries on the Laws of England (edited by W Morrison, 2001), Vol 1, p 141. 104 Collected works of Jeremy Bentham (Bowring edition, 1838–1843), Principles of Judicial Procedure, Vol II. See also W Twining, Theories of Evidence: Bentham & Wigmore, Weidenfeld and Nicolson, London, 1985. 105 Harmony Shipping Co SA v Davies [1979] 3 All ER 177 at 181; [1979] 1 WLR 1380 at 1385 (CA) per Lord Denning MR. Another Master of the Rolls, Lord Donaldson, stressed that ‘litigation is not a war or even a game. It is designed to do real justice between opposing parties …’. See also Davies v Eli Lilly & Co [1987] 1 All ER 801 at 804; [1987] 1 WLR 428 at 431 . In British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1995) 45 Con LR 1 at 5, Saville LJ said: ‘Pleadings are not a game to be played at the expense of the litigants, nor an end in themselves, but a means to the end, and that end is to give each party a fair hearing.’ See also Barder v Caluori [1988] AC 20

at 41

; [1987] 2 All ER 440 at 451

(HL) per Lord Brandon.

106 EI Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423; 83 ALR 499 at 424,500 Sheppard J.

per

1.65 A further point to be noted with regard to the court’s duty to decide cases according to the law and the facts is that no system is infallible. No system can guarantee the factual correctness of each and every judgment. Furthermore, we do not have a meta test for judging the conformity of individual judgments to the truth.

Page 28 If we had independent means of ascertaining the truth, we would be using them rather than the present procedures. There is also no means other than the right of appeal to test whether the law has been correctly applied, even when the facts have been accurately determined. All that is available for the determination of right and wrong is the existing procedural system. Theoretically, infinite resources and time could be expended and one would still not be able to recreate perfectly that which has happened in the past. Public confidence in the justice of any judicial decision is that the procedure used to make it was just and adequate to its task. The law’s commitment to correct outcomes is demonstrable in most areas of procedure. It shapes the right to fair trial and many discrete procedural institutions, such as disclosure. It underpins the law’s procedures for affording parties access to all relevant evidence and its willingness to admit all relevant evidence that the parties are able to obtain. It constitutes a powerful consideration in the exercise of judicial discretion in virtually all matters of procedure. Whether the court is asked for permission to amend a statement of case, allow late service, grant an extension of time for serving witness statements, or leave to call fresh evidence on appeal, it will invariably be influenced by the need to achieve a correct outcome in the substantive litigation.107 However, the overriding objective now makes clear that this is not the only consideration as it does not override the considerations of time, proportionality of resources and, indeed, fairness to other parties and those waiting for justice in pending cases.

Page 30 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure

107 In the New South Wales Court of Appeal, Basten JA explained, ‘It is self-evident that what will be required in most cases is the resolution of a tension between speed (including the avoidance of delay), reduction of costs and the proper consideration of the issues raised by the parties’: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 at 272; [2009] NSWCA 372

. See also Sackville AJA at 287.

Proportionality of resources

1.66 With the overriding objective firmly entrenched in Australian civil procedure, justice on the merits is no longer the lone goal that the court must strive to achieve. No matter how hard and fast we may cling to the aim of doing justice on the merits, the practical constraints of limited resources are bound to impinge on the litigation process. There is no escaping the fact that court resources are limited. There are only so many judges, so much administrative support, and so many courtrooms.Litigants are of course entitled to access to justice, but it does not follow that there is also an entitlement that the taxpayer should fund the best possible adjudicative services no matter the cost. The notion of proportionality requires that the procedure adopted for resolving a dispute is proportionate to the value, importance and complexity of the issues in dispute.108 Important though adjudication of civil disputes is, parliament is no more bound to give the courts an open-ended budget any more than it is bound to provide unlimited funds for hospitals or any other public service. All that litigants are entitled to expect is a reasonable allocation of resources to achieve reasonable

Page 29 protection and enforcement of their rights.109 Determining what is a reasonable allocation of resources to the administration of justice involves many and varied public policy decisions, which only the legislature can make.110

108 A Zuckerman, ‘Justice in Crisis: Comparative dimensions of civil procedure’ in A Zuckerman (ed), Civil Justice in Crisis: Comparative perspectives of civil procedure, Oxford University Press, Oxford,1999, p 48; Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, Vol 1, pp 93–4. 109 R Dworkin, A Matter of Principle, Clarendon Press, Oxford, 1985, p 92. For a purely economic approach to the problem, see R Posner, ‘An Economic Approach to Legal Procedure and Judicial Administration’(1973) 2 Journal of Legal Studies 399; and R Posner, Economic Analysis of the Law, 5th ed, Aspen Law & Business, New York, 1998. 110 A number of questions of policy are connected with the resource dimension of justice. The first is whether the cost should be borne by the state (namely, the taxpayer) or the litigants who use the system. This policy question is influenced by considerations that are beyond the scope of this work, such as whether public services are more effectively or justly provided by charging the user or by paying for them through taxes. Low litigation costs would tend to encourage litigation. The more litigation there is, the more the taxpayer will have to maintain the system. But if resources are not increased in line with the volume of litigation, the more litigation there is, the longer delays will be. High litigation costs also may have a bearing on equality of arms between litigants.

1.67 There is a further aspect to proportionality, which is concerned with the relationship between the parties. The use of procedural devices, such as disclosure or expert witnesses, demands a response from the opponent and thereby imposes a burden on them. An unreasonable use of a procedural device may impose an unjust burden on another party. It is, therefore, one of the functions of proportionality to ensure that the civil process is not used as a means of oppressing poorer or otherwise vulnerable opponents. Thus, for instance, the court must ensure that parties are on an equal footing and that the richer party is not allowed to gain an unfair advantage over their poorer opponent by demanding excessive disclosure or by adducing unnecessary and numerous expert reports. The novelty of the overriding objective is in instructing the court to have regard to the availability of both court and party resources and

Page 31 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure ensure that the case is managed in a way that is proportionate to both. This idea is not entirely new. Speaking extra-curially, Lord Devlin observed: [I]s it right to cling to a system that offers perfection for the few and nothing at all for the many? Perhaps: if we could really be sure that our existing system was perfect. But of course it is not. We delude ourselves if we think that it always produces the right judgment. Every system contains a percentage of error; and if by slightly increasing the percentage of error, we can substantially reduce the percentage of cost, it is only the idealist who will revolt.111

111 BBC, ‘What’s Wrong with the Law’, 1970 (Lord Delvin), cited by Lord Woolf in Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales, 1995,Ch 2 at [5] and [6].

1.68 What is new is that the overriding objective brings into focus the need for articulating resource allocation decisions. The most elementary choice that any procedural system has to make is how to allot its resources to different cases. One possible choice is to allocate an equal amount of court time to every case. However, this would result in time being wasted unnecessarily on simple, straightforward disputes while leaving insufficient time for complex or important disputes, thereby risking error and injustice in the very cases where error is likely to be most harmful. The weakness of such strategies lies in their inflexibility, which tends to result in a mismatch between the needs of particular disputes and the resources allocated to

Page 30 them.A different option is to let the parties decide how much court time to take. However, as the Old System has shown us, this strategy leads to injustice because litigants who happen to be before the court are unlikely to be concerned with the interests of other litigants waiting in the queue.

1.69 So important is the principle of proportionality to the overriding objective of Australian civil procedure that most jurisdictions have enacted legislation or made rules which expressly require consideration of proportionality in case management and party interaction. Section 37M of the Federal Court of Australia Act 1976 (Cth) includes as part of its ‘overarching purpose’ the requirement that disputes be resolved ‘at a cost that is proportionate to the importance and complexity of the matters in dispute’. Section 60 of the Uniform Civil Procedure Act 2005 (NSW), which is entitled ‘proportionality of costs’, provides that ‘in any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the complexity of the subject-matter in dispute’. Section 9 of the Uniform Civil Procedure Act 2010 (Vic) requires that in the making of any order or giving any direction, a court is to further the overarching purpose by, amongst other things, ‘dealing with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute, and the amount in dispute’. Queensland expressly contemplates proportionality in s 43 of the Civil Proceedings Act 2011 (Qld), which requires the court to refer a dispute to an alternative dispute resolution process including where ‘the costs of litigating the dispute to the end are likely to be disproportionate to the benefit gained’. South Australia contemplates proportionality in r 130G(4) of the Supreme Court Civil Rules 2006 (SA) in the context of the parties making of litigations plans, namely by requiring ‘the length and detail of a litigation plan … to be proportionate to the nature, extent and complexity of the issues and is not to be disproportionate to the amount in dispute’. In Western Australia, in the context of the objects of case management, the Rules of the Supreme Court 1971 (WA) state as an object ‘ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value’ of the dispute. The Australian Capital Territory provides in s 5A(1) of the Court Procedures Act 2004 (ACT) that one of the ‘main purposes’ of civil

Page 32 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure procedure includes ‘the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute’.There no express reference to proportionality in Northern Territory legislation or rules of court. However, its case law makes clear that proportionality is a relevant consideration in managing cases.112

112 NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd [2016] NTSC 44 at [3]

per Master Luppino.

1.70 It is submitted that, whether or not the procedure statutes or rules refer expressly to proportionality, the principle of proportionality is now a fundamental part of case management so much so that it needs no express mention. This is because proportionality is a non-technical concept, which expresses the idea of a reasonable correlation between process means and expected ends. Now that it is the duty of the court to strike a balance between the need for justice on the merits, the need to

Page 31 resolve disputes with minimum outlay, and the need for timely resolution, one would expect the courts to strive for proportionality whenever they have to decide matters of procedure.

1.71 The overriding objective adopts a new variant of matching process to dispute. It is based on a more thorough and flexible method of matching the needs of individual cases and the process adopted for their resolution. Australian courts have extensive case management powers to ensure that the process employed is proportionate to a case’s needs. When dealing with an individual dispute, the court must keep an eye on the general picture and bear in mind the consequences that individual decisions on matters of procedure may have for the litigation system as a whole. A majority of the High Court in Sali v SPC Ltd113 outlined its consideration in this regard in the context of dismissing an appeal against a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal: In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases waiting hearing in the court as well as the interests of the parties. … What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.114

113 Sali v SPC Ltd (1993) 116 ALR 625

.

114 Sali v SPC Ltd (1993) 116 ALR 625 at 629

per Brennan, Deane and McHugh JJ. For the English position, see

Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 18; [1998] 1 WLR 1426 ; Spooner v Webb (1997) Times, 25 April (CA); Jones v University of Warwick [2003] EWCA Civ 151; [2003] 1 WLR 954 ; [2003] All ER 34

.

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1.72 It will have become clear that proportionality is not just a measure of economy but is also a means of achieving correct outcomes. A court that allows litigants to take a disproportionate amount of its time, and demand disproportionate resources,might deny justice to other litigants by postponing the resolution of their disputes and by leaving the court with insufficient resources to adequately consider more complicated cases. Lord Woolf MR explained in one of the early English overriding objective cases that: In considering whether a result is just, the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect o[n] the court’s ability to hear other cases if such defaults are allowed to occur.115

The overriding objective empowers the courts to articulate their own priorities regarding the use of the limited resources that are available to them.

115 Biguzzi v Rank Leisure [1999] 4 All ER 934 at 940; [1999] 1 WLR 1926

at 1933

(CA).

The imperative of timely resolution

1.73 Excessive delay may adversely affect the outcome of litigation in two distinct ways. First, it could undermine the court’s ability to determine the facts, because

Page 32 evidence could deteriorate or disappear.116 This aspect of delay may be referred to as error-inducing delay. Both plaintiffs and defendants can be adversely affected by error-inducing delay.117 Secondly, delay may undermine the outcome of litigation by eroding the ability of the court to redress wrongs. A judgment may come too late to be of practical use to the winning litigant, or may have taken so long to obtain that its benefit has been diminished. For example, a judgment holding that the plaintiff was wrongly excluded from the electoral roll would be of little use if it were given after the relevant election. The uncertainty produced by lengthy proceedings may itself undermine rights, because a point may be reached when the length of the period of uncertainty will have effectively destroyed the value of the right in question.118 The longer that the uncertainty of litigation hangs over rights, the more their practical value is diminished. We may refer to this type of injustice as prejudice-inducing delay. Accordingly, a decision may be unjust not because it is incorrect,but because it comes too late to put things right. It is this idea that is conveyed by the aphorism ‘justice delayed is justice denied’. It is clear, therefore, that justice has a temporal dimension. Whether delay results in error or in negating the effectiveness of judgment, the result is a denial of justice. The avoidance of undue delay or, in other words, timely adjudication, is therefore an imperative of justice.119

116 See Birkett v James [1978] AC 297

; [1977] 2 All ER 801

, discussed above at 1.22 and 1.26.

117 Defendants are particularly vulnerable in this respect because they may not know of the potential claim against them and may be unaware of the need to keep evidence or build up a case. 118 If the defendant is at risk from a claim denying their right to build on land for which there is no other use, the longer they are exposed to the risk the more likely it is that the land would diminish in value. 119 K Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92 Australian Law Journal 32 at 35.

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1.74 There are other ways in which delay may undermine the justice of adjudication. Where a long period of procedural inactivity on the part of one party to a dispute has induced the other party to act on the assumption that the proceedings would go no further, it could be unfair to restart the proceedings. Protracted litigation may adversely affect the wellbeing of litigants by causing stress and anxiety. Long delays tend to increase the cost of litigation. If a substantial period of time is allowed to elapse between procedural stages, lawyers need to refresh their knowledge of the case, doubtless at some cost to their clients, and the same goes for the judge managing the case. In addition, delay has a tendency to generate process disagreements and costly procedural hearings. Failure to comply with the litigation timetable often calls for repeated court interference and therefore causes unnecessary waste of court resources, thereby making it more difficult for the court to provide others with timely dispute resolution services.

1.75 Although the deleterious effects of delay were not unknown before the overriding objective,120 the courts were unable to translate the imperative of timely justice into practical measures to accelerate the resolution of disputes. The overriding objective, backed by a variety of case management measures, seeks to do just that. It requires the court to ensure that cases are dealt with as expeditiously as possible. The court is entrusted with the task of actively managing cases in order to further the overriding objective by, amongst other things, controlling the progression of cases. By

Page 33 including the need for expedition amongst the major goals of the overriding objective, the new system has made the need for timely resolution a major consideration in case management and in the exercise of judicial discretion generally.

120 See 1.31 above.

The overriding objective — a matter of compromise

1.76 The overriding objective presents the court with specific goals that the court must further in carrying out its case management function. Although every one of these goals represents an important imperative of justice, one can hardly fail to notice that they are capable of pointing in different directions.121 Sparing litigant and court resources may be incompatible with expeditious resolution, or it may be at odds with the need to arrive at a correct outcome. Similarly, expedition may be achieved only by investing more resources, rather than saving them, or it may only be reached by cutting procedural corners and thus running a higher risk of error.

121 See J Jolowicz, ‘On the Nature and Purposes of Civil Procedural Law’ in I Scott (ed), International Perspectives on Civil Justice: Essays in Honour of Sir Jack I H Jacob QC, Sweet & Maxwell,London, 1990, p 27; L Walker, E Lind and J Thibaut, ‘The Relationship between Procedural and Distributive Justice’ (1979) 65 Virginia Law Review 1401; W Twining, ‘Alternative to What? Theories of Litigation, Procedure and Dispute Settlement n Anglo-American Jurisprudence: Some Neglected Classics’ (1993) 56 Modern Law Review 380. The tensions between quality and

Page 35 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure economy and between speed and accuracy are discussed in A Zuckerman, ‘Quality and Economy in Civil Procedure — the Case for Commuting Correct Judgments for Timely Judgments’ (1994) 14 Oxford Journal of Law and Society 353.

1.77 The potential for conflict between different policies does not in any way derogate from the validity of the general scheme. On the contrary, the strength of a procedure guided by the overarching objective lies precisely in confronting the inevitable tension between three imperatives: the need for correct outcomes, the need for expeditious resolution, and the practical constraints of resources. The necessity of striking a balance between these three factors is not new. Even before the overarching purpose was introduced in Australia, the court had to weigh such conflicting considerations when it was called upon to resolve procedural disputes. It was just as common then as it is now for the court to be faced with a choice, for instance, between allowing late amendment, and thus compromising expedition, or denying it and thus compromising the correctness of the outcome. The difference is that, previously, considerations of time and of resources were neglected by the rules and principles which governed litigation under the Old System. Achieving justice on the merits was the predominant concern, no matter how much its pursuit cost the litigants or the taxpayer and no matter how long it took to reach a resolution.

1.78 Under the overarching purpose, by contrast, considerations of resources and of expedition are brought to the fore. Take, for example, Thomas v SMP5 (International) Pty Ltd.122 One of the parties filed a 500-page affidavit that contained mostly irrelevant material. Pembroke J considered the affidavit, and described it as ‘a time consuming, painstaking but ultimately unrewarding task’.123 His Honour stopped in his consideration of the affidavit after some 3000 paragraphs, noting he could ‘go no

Page 34 further’ and finding that it was not ‘appropriate to rule on each and every objection’ in the affidavit.124 It was simply not worth the resources of the court or the other parties to deal with the affidavit thereby prolonging the resolution of the dispute on an unreasonable basis. The need to take into account the various matters included in the overarching purpose inevitably presents the court with a range of possibilities among which the court will have considerable scope for choice. The overarching purpose equips the court with principles to guide it in making choices that are appropriate for the case at hand. Court discretion is now exercised by reference to fuller and balanced sets of objectives and principles, which should enable the court to respond to the demands placed upon the justice system by litigants and by the community.

122 Thomas v SMP5 (International) Pty Ltd [2010] NSWSC 822

.

123 Thomas v SMP5 (International) Pty Ltd [2010] NSWSC 822 at [17]

.

124 Thomas v SMP5 (International) Pty Ltd [2010] NSWSC 822 at [17]

.

1.79 Different judges may come to different conclusions. However, simply because reasonable minds may differ does not mean courts have unlimited discretion. Management decisions must be made by reference to established principles and general guidelines developed by courts of appeal, especially the High Court. Notwithstanding some inconsistencies, broad principles of case management priorities are emerging. It is, therefore, one of the aims of the remainder of this work to expose the ways in which court discretion is exercised and draw attention to the

Page 36 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure developing patterns of case management.

Court control — adapting process to dispute

1.80 The overriding objective aims to avoid the excesses and inefficiencies of the Old System by ensuring that the processes followed for the resolution of a particular case are appropriate and adapted to the needs of the dispute. To this end the rules of court entrust the responsibility of case management to the court, which require it to act in accordance with the overriding objective. The notion of proportionality is central to this endeavour. It denotes a correlation between the processes employed in any given case and the following factors: the amount of money in dispute, the importance of the case, and its complexity, and the financial position of each party. The overriding objective is an ever present concept that influences almost every aspect of procedure. Although its full implications can only emerge from the treatment of discrete processes, it is desirable to provide at the outset a general description of the court’s case management powers and their relationship to the overriding objective.

Court control — discretionary powers guided by the overriding objective

1.81 Lord Woolf’s Access to Justice Report concluded that to avoid the excesses of the past ‘there is now no alternative to a fundamental shift in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts’.125 The powers to excuse procedural defects, to extend the time for compliance

Page 35 with process obligations, and to grant relief from sanctions are the same as under the previous system. Therefore, the tension between rule and discretion remains. Rules and court orders must be obeyed, but a failure to obey them does not of itself invalidate proceedings. The time limits dictated by the rules or by the court must be respected, but the court continues to have the discretion to grant extensions or forgive delay. Sanctions for failure to comply with the rules or with orders of the court exist, but the court may grant relief to defaulting litigants and spare them from suffering the stipulated consequences of default.

125 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Section 2 at [18].

1.82 There is, however, a fundamental difference between the contemporary case management and Old System procedure, in that modern general discretionary powers are now subservient to the overriding objective and its policies. Non-compliance with court rules and orders is now likely to be treated very differently in most jurisdictions, because the need to reach a correct outcome has to be considered alongside the need to reach a timely resolution and the need to spare the parties’ and the court’s resources. Further, most courts must now have regard not only to the interests of the litigants before it, but also to the general interests of the administration of justice and to the effect that the conduct of a particular case may have on the court’s ability to devote its attention to other litigants waiting in the queue.126 Thus, although the underlying structure of the general discretionary powers has not greatly changed, the principles governing their exercise are now substantially different.

Page 37 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 126 Sali v SPC Ltd (1993) 116 ALR 625 at 629

per Brennan, Deane and McHugh JJ; EI Du Pont de Nemours v

Commissioner of Patents (1987) 16 FCR 423 at 427

per Sheppard J.

The new approach of adapting process to dispute

1.83 In any given volume of court cases there will be a divergence of relative complexity and importance of individual disputes. The majority of cases will be relatively simple or modest. As cases go up in complexity and importance their number diminishes until we end up with a handful of disputes that are of extraordinary complexity or of farreaching economic or social consequence. It makes no sense to give all cases equal court attention, because this method of distributing resources would leave too little for cases of great importance while unnecessarily wasting resources on disputes that could be satisfactorily resolved summarily. Differentiation in allocating procedural resources is therefore a demand of justice. A risk of error is inherent in any procedure, but the magnitude of the harm caused by an error varies according to the value at stake or the importance of the dispute. A mistake about an entitlement to $30,000 is different from a mistake about an entitlement to $1,000,000.127 A mistake about an entitlement to damages for breach of contract to convey property may not be as harmful as a mistake leading to a denial of the right to liberty. The allocation of procedural resources must therefore take into account the harm that insufficient resources could cause.

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127 Suppose that a person is party to two separate disputes pending: one involving $1,000,000 and the other $1,000,000. In both, the plaintiff strongly believes to be in the right. The plaintiff is allocated a given amount of judicial time for both cases and the plaintiff is left to choose how to use it. The plaintiff could choose to devote half of the allocation to each case. But if the plaintiff believes that the more judicial time a dispute receives the more likely it is that the court would reach the correct result, then the plaintiff would devote the great majority of the allocation to the $1,000,000 case for obvious reasons.

1.84 There are several methods for matching process to disputes. The first consists of tiered courts whereby lower tier courts decide simple cases while important or complex disputes are reserved for the superior courts in the court hierarchy. This may be referred to as the jurisdictional technique, indicating that different courts have jurisdiction over different types of cases. A jurisdictional technique may differentiate between cases according to their value.128 It may be accompanied by differences in procedure between higher courts and lower courts (the higher tier courts being staffed by better-qualified and more senior judges). Although common, the jurisdictional approach suffers from a serious weakness, because allocation criteria tend to be inflexible and end up making unsuitable matches between disputes and courts. If, for instance, the criterion for allocation turns on the value of the dispute, high value cases would be referred to the superior courts even when they are in reality straightforward, and low value cases would be sent to the inferior courts even when they are in reality complex. A different technique consists of matching not courts to disputes but of matching procedure to disputes. The same court may have a range of processes at its disposal, ranging from formal and demanding proceedings, through to intermediary proceedings, to rough and ready informal processes.129 Yet this approach too may fail to achieve a reasonable match between disputes and processes if the criteria for allotting cases to these various procedures are inflexible.

128 Most jurisdictions in Australia have a tiered court structure separated by the value or importance of a claim.

Page 38 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure 129 For example, r 1311 of the Court Procedures Rules 2006 (ACT) provides that, where the interests of justice require it, a court may grant an expedited trial.

1.85 Both these forms of case management have been prone to upward pressure, which constantly pushes more and more cases towards the superior courts or towards the more formal and demanding procedures. A number of factors contribute to this. There is often a perception that the benchmark of justice is defined by the superior courts which employ the most demanding procedure and that, therefore, inferior courts dispense inferior justice because less senior judges follow more summary procedures.A further contributing factor to the upward pressure has to do with financial and tactical incentives. If lawyers earn more from litigation in the superior courts, they may be tempted to direct as many of their clients to those courts as they can. Clients too may have reasons of their own to turn to more expensive processes, particularly if they can intimidate their poorer opponents by doing so. This is a shadow of the Old System that remains.

1.86 It is worth bearing in mind though that just as process tends to get adjusted to disputes, disputes too can tend to adjust to process. As Professor Ian Scott has observed, ‘an alteration in the processes for handling a dispute can have the effect of altering the dispute itself’.130 The procedure adopted may have a bearing on what parties dispute and how they go about it. A further point to bear in mind is that parties and their lawyers respond to economic and other incentives and that these too may affect the nature of a given dispute, its complexity, and its intensity.

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130 I Scott, ‘Caseflow Management in the Trial Court’ in A Zuckerman and R Cranston (eds), Reform of Civil Procedure — Essays on Access to Justice, Clarendon Press, Oxford, 1995.

The implications of proportionality for case management

1.87 When dealing with an individual dispute, the court must consider the consequences that individual decisions may have for other litigants and the system as a whole.131 Lord Woolf CJ explained: A judge’s responsibility today in the course of properly managing litigation requires him, when exercising his discretion in accordance with the overriding objective … to consider the effect of his decision upon litigation generally. An example of the wider approach is that the judges are required to ensure that a case only uses its appropriate share of the resources of the court. … Proactive management of civil proceedings … is not only concerned with an individual piece of litigation which is before the Court, it is also concerned with litigation as a whole.132

This is especially so in relation to adjournments, since the disruption of the trial timetable of one case could disrupt other cases waiting for their turn before the court, or leave courts idle. Therefore, the courts treat postponement of a date fixed for trial, or adjournment of the trial itself, with considerable disfavour.133

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131 Sali v SPC Ltd (1993) 116 ALR 625 at 629

per Brennan, Deane and McHugh JJ; EI Du Pont de Nemours v

Commissioner of Patents (1987) 16 FCR 423 at 427–8

per Sheppard J.

132 Jones v University of Warwick [2003] EWCA Civ 151 at [25]; [2003] All ER (D) 34 (Feb) at [25]; [2003] 1 WLR 954 [25]

at

.

133 See the discussion of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

above at 1.43.

1.88 Considerations of proportionality come into most procedural decisions, and guide the court in determining the process to be followed both before and during the trial. Proportionality can also be used by judges to set standards of adversarial behaviour during interlocutory processes.134 Proportionality governs the court’s response to virtually every aspect of the case. For example, it is an important consideration in determining the scope of discovery, as EI Du Pont de Nemours v Commissioner of Patents illustrates.135 The parties had formally consented to an order for general discovery. When it became apparent to the appellant that general discovery would impose an inordinate burden on it, the appellant applied for an order to vacate the order or to vary it so that discovery of certain categories of documents only could be made. The Supreme Court of New South Wales refused that application and the appellant appealed to the Full Court, which allowed the appeal. In reaching that conclusion, Sheppard J said: It is difficult to imagine how the respondents would have been assisted by receiving a list specifying in a general way innumerable bundles of documents. … No solution in a case of this kind is completely satisfactory. Arbitrary decisions have to be made and corners have to be cut. If this is not done cases will never come on for hearing.136

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134 See the discussion of Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013)250 CLR 303; 303 ALR 199; [2013] HCA 46

above at 1.44.

135 EI Du Pont de Nemours v Commissioner of Patents (1987) 16 FCR 423

.

136 EI Du Pont de Nemours v Commissioner of Patents (1987) 16 FCR 423 at 426–7

per Sheppard J.

1.89 Proportionality should guide judicial decisions as far ranging as the degree to which a party is required to comply with its obligations to file and serve expert evidence prior to trial. In Halpin v Lumley General Insurance Ltd,137 the defendant insurer obtained an order partially exempting it from a direction that all lay and expert evidence and reports be served prior to trial. The direction permitted the defendant to withhold affidavits relating to investigations that supported the insurer’s defence that the insured had provided false information. The insured sought leave to appeal, which was dismissed by the New South Wales Court of Appeal. Sackville AJA considered that justice on the merits was but one consideration, and that an important consideration was that requiring the evidence to be filed and served prior to trial increased the prospects of an adjournment and delay to allow the insured time to obtain responsive expert evidence in circumstances where the utility of expert evidence was questionable. Sackville AJA reasoned according to the overriding objective as follows:

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[I]f the court considers that an order permitting one party to withhold affidavit or other material from the other party pending the trial is likely to assist in the speedy determination of the real issues between the parties (CP Act, s 61(1))or is likely to advance the just, quick and cheap disposal of the proceedings (UCPR, r 2.1), it has power to make the order. Whether the order is appropriate in a particular case will depend on a number of considerations, including the application to the circumstances of the case of the criteria stated in CP Act, s 57(1) and the ‘dictates of justice’ as defined in s 58(2). … The making of such a direction does not imply that the trial is to be conducted ‘by ambush’, nor that the party seeking the direction has failed to co-operate in identifying and elucidating the issues in dispute. On the contrary, the statutory criteria that must be taken into account for a direction to be made should ensure that the issues are clearly defined and that the party seeking the directions demonstrates that the ‘dictates of justice’ will be served by the direction.138

137 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372

.

138 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [96]–[101]

per Sackville AJA.

Promoting expeditious resolution, reducing cost, and enhancing efficiency

1.90 The court now has ample facilities for monitoring the progress of a case and should no longer wait, as in the past, for the parties to make applications in order to give directions or, indeed, in order to enforce compliance with them. It has a duty to exert control on every occasion that a case comes before it, in order to review its progress, consider whether any additional directions are necessary and deal with as many aspects of the litigation as it can at the same hearing. Therefore,whenever a case comes before the court, whether it be on an application for striking out or for summary judgment, or whether for case management directions, the court is now bound to consider all aspects of the case to date, including the extent to which parties have complied with court directions.

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1.91 The court’s approach in this regard is illustrated by the case of Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2).139 Pumptech brought an action against CB&M for 12 claims for equipment and work supplied and work done. Although CB&M had filed a defence, it failed to comply with a number of procedural orders made and ceased to participate in the case management processes of the court. Pumptech successfully made application for the defence to be struck out and default judgment entered. CB&M sought leave to appeal, which was dismissed. Considering principles of case management, Blow J reasoned: When one looks at the long history of this litigation, it is clear that the holding of a great many directions hearings over four and a half years from November 2004 to May 2009 achieved remarkably little in relation to the avoidance of delays and costs. The defendant was compelled to make, file and serve first one sworn list of documents, and then another, in each case only after multiple directions hearings and eventually an application for judgment. More than once, for no reason that is apparent from the evidence or the records of the Court, the action was allowed to go to sleep for periods of months when, in my view, aggressive case management was necessary if there was to be any hope of completing interlocutory processes

Page 41 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure without undue delay. Cases like this are an embarrassment to the Court. They cause individuals to lose respect for the authority of the Court and, in the words of French CJ, ‘confidence in the rule of law’. With the litigation in its fifth year, Hold AsJ encountered conduct that was not just dilatory, but also contumelious.140

139 Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) (2009) 19 Tas R 376; [2009] TASSC 78

.

140 Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) (2009) 19 Tas R 376 at 398–9; [2009] TASSC 78

per Blow J.

Functional convergence of pre-trial and trial processes

1.92 Case management decisions, such as setting timetables and determining the extent of disclosure, or deciding how expert evidence is to be obtained, must be guided by the overriding objective. The court must therefore make a case-specific assessment of the potential usefulness of a variety of procedural facilities that are capable of influencing the outcome, such as whether to allow more or less disclosure and whether to order the appointment of a joint expert or allow the parties to call their own experts. By limiting disclosure or the number of experts, the court may effectively exclude relevant evidence. The appointment of a joint expert can in practice give the expert considerable influence on the eventual outcome. These and other similar decisions are an integral part of case management.

1.93 Furthermore, at least in more complex cases, the evidentiary stage, which used to coincide with the trial, is now commenced earlier, with the result that the trial too has changed almost beyond recognition. While in theory evidence and argument are still presented at the trial, in reality they may be put before the court well in advance of the trial. In a complex case, the judge will have read the relevant documents, the witness statements and the parties’ skeleton arguments before the trial. At the trial, the court would normally dispense with the reading out of documentary evidence,

Page 40 with evidence-in-chief and even with detailed legal argument. Instead, it may allow only cross-examination of witnesses, to the extent that their evidence is disputed, and might limit the advocates’ oral presentations to matters on which the court requires clarification. In such cases the court’s eventual decision will be based as much on written materials as on what is said at the oral hearing.

1.94 The extent of the court’s involvement in the litigation process from the start is such that the adjudicative task may be said to start as soon as the court undertakes management responsibility for the case. Of course, not every management decision is likely to affect the outcome, but the scope for influential decisions is sufficiently extensive to justify the conclusion that the adjudication of disputes is now one continual process, in which the trial is merely the final stage and not necessarily the most important one. This represents a very considerable departure from the

Page 42 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure traditional common law model of civil adjudication and brings English procedure closer to civil law systems.

The parties’ duty to cooperate

1.95 In addition to their specific procedural obligations, the parties have a general obligation to cooperate. This obligation contains at least two components: a duty to assist the court discharge the overriding objective, and a duty to cooperate with their opponents to further the aims of the overriding objective.

Duty to assist the court

1.96 A court cannot manage cases without party cooperation. Only the parties can decide whether to engage in litigation and what to dispute. The adversarial system of civil procedure demands that it is the parties who have to fulfil process requirements,such as the mustering and presentation of evidence. Only the litigants can advance the process to a conclusion. Where this is not the case, there is a risk of a systemic breakdown in the administration of justice, particularly where the court defers to the parties to act in good faith. This was explained by Heydon J in Aon Risk Management Services Australia Ltd v Australian National University:141 The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.142

141 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

142 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [156]

per Heydon J.

1.97 Court dependence on party cooperation is even greater now that the court has the duty to manage the litigation process in accordance with the overriding objective. This is why most jurisdictions have developed statutes or rules which require the parties to observe the overriding objective. For example, s 37N(1) of the Federal

Page 41 Court of Australia Act 1976 (Cth) imposes upon the parties to proceedings a duty to ‘act consistently with the overarching purpose’.

1.98

Page 43 of 46 Chapter 1 The Overriding Objective of Australian Civil Procedure By s 56(3) of the Uniform Civil Procedure Act 2005 (NSW), the onus is placed on the parties to civil proceedings to ‘assist the court to further the overriding purpose’.143 In Palavi v Radio 2UE Sydney Pty Ltd,144 Allsop P of the New South Wales Court of Appeal explained the general duty owed to the court in the context of the duty described in s 56(1) of the Civil Procedure Act 2005 (NSW): It is to be recognised that under the Civil Procedure Act, s 56(3) a party to a civil proceeding is under a statutory duty to assist the court to further the over-riding purpose (in s 56(1)) and to that effect participate in the processes of the court and to comply with directions and orders. To a degree this may be seen as a duty of imperfect obligation, not sounding in damages; but it is a duty nevertheless, and a real one. Significant public resources are devoted to the administration of justice. The Parliament has recognised and expressed the duty of those using the courts (and the resources devoted to them) to act responsibly, honestly and to further the just, quick and cheap resolution of proceedings.145

143 It is also contrary to the overriding purpose for a solicitor or barrister to cause a party to be put in breach of their duty to assist the court: Civil Procedure Act 2005 (NSW) s 56(4). 144 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

.

145 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [93]

per Allsop P.

1.99 Section 10 of the Uniform Civil Procedure Act 2010 (Vic) provides that the overarching obligations apply to any person who is a party to proceedings, any legal practitioner or other representative acting for or on behalf of a party, and any law practice acting for or on behalf of a party, and is capable of extending to other bodies such as litigation funders. For those to which the overarching obligations apply, s 16 imposes a paramount duty on them to ‘further the administration of justice in relation to any civil proceeding in which that person is involved’. This is informed by ss 16–26, which further impose overarching obligations to do or not do certain things, such as to act honestly, take steps to resolve or determine the dispute, and not to mislead or deceive the court or one’s opponent.

1.100 Rule 5(3) of the Uniform Civil Procedure Rules 1999 (Qld) perhaps goes further than other rules of civil procedure in that it implies that the parties to proceedings have undertaken ‘to the court and the other parties to proceed in an expeditious way’. Where a party has not complied with this undertaking the court has the power to ‘impose appropriate sanctions’ pursuant to r 5(4). An example provided for under r 5(4) says that the ‘court may dismiss a proceeding or impose a sanction as to costs, if, in the breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court’.

1.101 Rule 113(1) of the Supreme Court Civil Rules 2006 (SA) provides that the parties to a proceeding, and their lawyers, have a duty to the court to assist in the orderly progress of the proceeding from its commencement until it has been finally dealt with by the court. The court has powers to enforce compliance, or to penalise noncompliance, with r 113 in rr 12 and 13. Rule 113(2) expands upon r 113(1) and provides that the parties have a duty to the court to ensure that they comply with the

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Page 42 court’s directions as to the conduct of the proceeding, and they are ready to proceed with each interlocutory hearing at the time appointed under the rules.

1.102 Section 5A(4) of the Court Procedures Act 2004 (ACT) similarly imposes an obligation on the parties to a civil proceeding to ‘help the court to achieve the objectives’ enunciated in s 5A(1).

Duty to cooperate with opponents

1.103 Even more radically, parties in some jurisdictions are now expected to cooperate with each other to, as best as is possible, achieve the ends of the overriding objective. In these jurisdictions, the parties must respond positively to reasonable requests for information and to invitations to settlement negotiations, and they are encouraged to agree as many aspects of the litigation process as possible.

1.104 The duty to cooperate with each other is a significant cultural change from the adversarial system experienced under the Old System as, before the Woolf Reforms, parties had no comparable duty. Parties were of course obliged to perform their process duties but beyond that they were free to refrain from responding to questions from their opponent, free to withhold information unless and until they came under a duty to disclose it, free to resist settlement negotiations, and free to treat any approach from an opponent with disdain. If they engaged in negotiations, they remained free to drag out the talks to no end other than to make their opponent’s life difficult. Delay is, after all, the bluntest of instruments in the defendant’s toolkit when a defence has no real prospects of success. Various reforms have now been made to reduce the ability for these inefficiencies to disrupt the proper conduct of civil litigation. Of course, civil litigation is adversarial and the parties’duty to cooperate with each other is limited by that traditional framework.

1.105 The obligation imposed on the parties pursuant to s 37N(1) of the Federal Court of Australia Act 1976 (Cth) extends to negotiations for settlement of disputes. However, the onus is placed not only on both the court and the parties but also a party’s lawyer, albeit indirectly. Section 37N(2) requires a party’s lawyer, in the conduct of a civil proceeding and on the party’s behalf, to take account of the overarching purpose and ‘assist the party to comply with the duty’. Section 37N(3) then elaborates on how a party’s lawyer might assist their client to comply with the overarching purpose. For example, the court may require a party’s lawyer to give an estimate of the ‘likely duration of the proceeding’ and ‘the likely amount of costs that the party will have to pay in connection with the proceeding or part of a proceeding’, which includes the ‘costs the lawyer will charge’their client and ‘any other costs the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding’.146 The court is required to take into account any failure to comply with the overarching purpose when exercising the discretion to award costs, and the court has the power to order a lawyer to bear costs personally for a failure to comply with

Page 43 the overarching purpose.147 Where a lawyer is ordered to bear costs personally, they are prohibited from passing the costs to their client.148

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146 Federal Court of Australia Act 1976 (Cth) s 37N(3). 147 Federal Court of Australia Act 1976 (Cth) s 37N(4). 148 Federal Court of Australia Act 1976 (Cth) s 37N(5).

1.106 Section 20 of the Uniform Civil Procedure Act 2010 (Vic) provides content to the ‘paramount’ duty owed by the parties to a dispute, which is referred to above at 1.100, in that a party must cooperate with the other parties to a civil proceeding in connection with the conduct of that proceeding. Section 23 also places an obligation on the parties to use reasonable endeavours to resolve a dispute by agreement, including, if appropriate, by appropriate dispute resolution unless it is not in the interests of justice to do so, or the dispute is of such a nature that only judicial determination is appropriate. Where a proceeding cannot be resolved, s 23 imposes on the parties an overarching obligation to use reasonable endeavours to resolve by agreement any issues in dispute which can be resolved that way, and narrow the scope of any remaining issues unless it is not in the interests of justice to do so or only judicial determination is appropriate.

Court rules affecting the law of evidence

1.107 Although matters of procedure and evidence are inextricably linked with each other, the power to make rules of court was until recent times limited to matters of practice and procedure. This was not always the case. Until the nineteenth century it was generally recognised that a change in rules of practice could influence the admissibility of evidence. For instance, Chancery procedure denied the common law privilege of a party to refuse to testify or to disclose any of its evidence in advance of trial.149 It was not unusual for common law rules of evidence to be changed in Chancery Orders.

149 J Wigmore, Evidence (Tiller’s edition), Little, Brown, Boston, 1983, Vol 1, p 30.

1.108 By a quirk of history, rules of evidence came to be seen as representing substantive law rather than procedural law. As a result, the powers of rule-making in procedure could not extend to rules of evidence. Matters of procedure were to be regulated by rules of court while questions of evidence were regulated by statute and common law.150 The manner of obtaining and presenting evidence was a matter of practice and procedure, and therefore governed by rules of court. But the admissibility of evidence was a matter for the substantive law of evidence, over which the rule-making bodies had no authority. Notwithstanding the then prevailing view that rules of practice and procedure were distinguishable from rules of evidence, the courts found no difficulty deciding that, as a matter of procedure, the rules of evidence were inapplicable to ex parte proceedings and interlocutory proceedings, and that affidavits were admissible in such proceedings on the basis of knowledge and belief.151

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150 For the background to the rule-making powers, see J Jacob, ‘Civil Procedure Since 1800’ in The Reform of Civil Procedure, Sweet & Maxwell, London, 1982 p 213; and J Jacob, ‘The Machinery of the Rule Committee’ in The Reform of Civil Procedure, Sweet & Maxwell, London, 1982, p 323. 151 See, for example, R v Ryle (1841) 152 ER 96; and see generally J Wigmore, Evidence (Tiller’s edition), Little, Brown, Boston, 1983, Vol 1, pp 33 ff.

1.109 It is doubtful whether the distinction between matters of practice and procedure, on the one hand, and rules of evidence on the other, has ever made sense. Any sensible arrangement regarding the conduct of litigation must have regard to all aspects of the civil justice system. For example, it would have been impossible to implement mutual disclosure of expert reports without, at the same time, mandating a waiver of legal professional privilege attaching to such reports. It would have been equally hard to achieve the aims of the Woolf Reforms in Australia without looking at procedure and evidence as integral and interconnected elements of the adjudicative process.

End of Document

Chapter 2 The Australian Court System and its Effect on Civil Justice Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 2 — The Australian Court System and its Effect on Civil Justice

Chapter 2 The Australian Court System and its Effect on Civil Justice Page 45 [Current to May 2018]

Introduction

2.1 This chapter outlines the structure of the Australian civil justice system, focusing on courts with broad civil jurisdiction at both the federal level, and the state and territory level. The chapter discusses the jurisdiction of these courts.It considers both aspects of jurisdiction that are required for an Australian court to hear and determine a matter: personal jurisdiction and subject matter jurisdiction. It also considers the Australian system of cross-vesting of jurisdiction adopted in the late 1980s and its use in controlling forum shopping between Australian jurisdictions. Finally, the chapter takes a brief look at the Australian civil justice system in a broader context. In particular, it touches on the system’s relationship with England, with Indigenous Australians and with international legal systems more generally. In line with the focus of this text, the analysis always draws back to the overriding objective of achieving the just resolution of disputes in proportionate time and at proportionate cost.

The structure of the Australian civil justice system A constitutional federation

2.2 The Commonwealth of Australia is a constitutional federation of formerly independent colonies of the British Empire. Under the Australian Constitution, an Act of the Imperial Parliament of the United Kingdom in Westminster,1 the nation comprises six states, New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia, and several federal territories. The Constitution

Page 46 allocates the power of government of federal territories to the Federal Parliament.2 The Federal Parliament has, in turn, made two of these territories largely self-governing, the Australian Capital Territory and the Northern Territory.3 Additionally, the Territory of Norfolk Island was also largely self-governing up until 2015.4 Despite this change, Norfolk Island continues to maintain its own courts.5

1

Commonwealth of Australia Constitution Act 1900 (Imp) (the Constitution).

Page 2 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 2

Constitution s 122.

3

Australian Capital Territory (Self-Government) Act 1988 (Cth); Northern Territory (Self-Government) Act 1978 (Cth).

4

The Commonwealth Parliament passed the Norfolk Island Act 1913 (Cth) which accepted Norfolk Island as an Australian Territory under the territories power in s 122 of the Constitution. In 1979, the Commonwealth Parliament passed the Norfolk Island Act 1979 (Cth), which granted the territory relatively broad powers of self-government. In May 2015, the Commonwealth Parliament passed the Norfolk Island Legislation Amendment Act 2015 (Cth), which, from 1 July 2015, abolished the Norfolk Island Legislative Assembly. Further, from 1 July 2016, it subjected Norfolk Island to the legislative powers of the New South Wales Government.

5

The Supreme Court of Norfolk Island was established by the Norfolk Island Act 1957 (Cth) as the superior court of record in the territory and the court continues its existence under the Norfolk Island Act 1979 (Cth) and was not affected by the Norfolk Island Legislation Amendment Act 2015 (Cth). The Norfolk Island Court of Petty Sessions was established by the Court of Petty Sessions Act 1960 (NI), an Act of the Norfolk Island Legislative Assembly, that was continued in force by ss 16 and 16A of the Norfolk Island Act 1979 (Cth).

2.3 The Constitution provides the framework of the Australian legal order. Most importantly for our purposes, the Constitution provides the skeleton of the hierarchy of Australian courts. First, it recognises the states as bodies politic and preserves the state constitutions and, thereby, their judicial systems.6 Alongside the state judicial systems are the judicial systems of the territories, which ultimately derive their judicial power from the Federal Parliament under the Constitution.7 At the apex of the hierarchy, the Constitution establishes the nation’s supreme court of record and ultimate court of appeal, the High Court of Australia.8 It further establishes that the High Court has appellate jurisdiction from all state Supreme Courts.9 The Constitution also permits the Commonwealth Parliament to create additional courts with federal jurisdiction.10 In the civil context, this power has been used to create the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia.11 This chapter proceeds to outline the federal, state and territory civil courts in more detail. A diagram is included at the end of this chapter showing the hierarchy of the courts and tribunals of the Australian civil justice system.

Page 47

6

Constitution ss 106 and Ch III generally.

7

Constitution s 122; Australian Capital Territory (Self-Government) Act 1988 (Cth) and Supreme Court Act 1933 (ACT); Northern Territory (Self-Government)Act 1978 (Cth) and Supreme Court Act (NT); Supreme Court Act 1960 (NI) continued in force by Norfolk Island Act 1979 (Cth) ss 16 and 16A.

8

Constitution Ch III ss 71–80.

9

Constitution s 73.

10 Constitution s 71. 11 Also in the civil context, the power has been used to create the Family Court of Australia, but as this text is primarily concerned with general civil procedure rather than civil procedure in a narrow specialist context such as family law,the Family Court will not be discussed in detail.

2.4 The civil courts of Australia operate in a hierarchy not only for the progress of appeals, but also in terms of the doctrine of precedent. Unlike in some other federal systems such as the United States of America, the High Court has established that ‘[t]he Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form “one system of jurisprudence”’.12 When interpreting the law in the context of this single national system, Australian courts adhere to a very strict, and quite conservative, doctrine of precedent based on the court hierarchy. The High Court has suggested that all courts are not only bound by

Page 3 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice statements of law made by higher courts that were necessary to reach a decision in the relevant case (the rationes decidendi or ‘reasons for the decision’), but by all ‘seriously considered’ statements of law made by a higher court (even if they were obiter dicta).13 Further, the High Court stated that all courts are bound by interpretations of law by intermediate courts at the same level in another Australian jurisdiction, ‘unless they are convinced that the interpretation is plainly wrong’.14

12 Lange v Australian Broadcasting Corporation (Political Free Speech case) (1997) 189 CLR 520; [1997] HCA 25 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, quoting McArthur v Williams (1936)55 CLR 324 at 347; [1936] HCA 10 . The pronouncement that there really was this single system of law could only be forcefully made once the possibility of parallel appeals from state courts to both the High Court and the Privy Council was abolished by the Australia Acts 1986 (Imp) and (Cth). 13 See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134] . This case concerned obiter dicta of the High Court in a case that was over 30 years old, yet the High Court was, unanimously, quite scathing of the Court of Appeal of the Supreme Court of New South Wales for not following it. 14 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]

.

2.5 One further aspect of the hierarchy is that of litigation cost. At the lowest level in the civil justice system, the states and territories have a civil tribunal or small claims court. At this level, costs for a hearing are much lower than for other courts and legal costs are generally not recoverable by a successful party. These rules are designed to help facilitate access to civil justice for lower value claims. As one moves up the hierarchy, costs increase substantially. Court fees,including fees associated with commencing a matter and of holding a hearing increase, legal costs that are recoverable by a successful party increase, as do the rates generally payable for legal representation in the particular court. Choosing a court at the proper level of the hierarchy is therefore crucial to the overriding objective of achieving a just resolution of the relevant dispute at proportionate time and at proportionate cost. Choosing a court at the appropriate level within an Australian jurisdiction is discussed further in Chapter 4, 4.36 ff.

Federal courts — the High Court of Australia

2.6 Sitting at the apex of the Australian court system, the High Court of Australia is a court comprised of seven justices including the Chief Justice of Australia.15 Justices of the High Court are, in practice, appointed by the Prime Minister of Australia in

Page 48 Cabinet.16 Justices of the High Court have fixed tenure17 until the age of 70 and can only be removed by the Governor-General in Council, on an address of both houses of Commonwealth Parliament, on the grounds of proved misbehaviour or incapacity.18 These judicial tenure rules, together with the rules on judicial bias (discussed further in Chapter 3, 3.25 ff), help to safeguard the independence of the judiciary in Australia. In contrast to some other countries, perhaps most notably the United States of America, historically judicial appointments to the High Court are not commonly heavily political.19

15 Constitution s 71; High Court of Australia Act 1979 (Cth) s 5. 16 In fact, the Constitution does not make any reference to the ‘Prime Minister’ nor to ‘Cabinet’. Section 72 of the Constitution provides that judges are appointed by the Governor-General in Council. Under s 63 of the Constitution, ‘Governor-General in Council’ means the Governor-General acting with the advice of the Federal Executive Council.

Page 4 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice Under s 62 of the Constitution, the Federal Executive Council is made up of members chosen by the GovernorGeneral.By constitutional convention, the members are chosen on the advice of the Prime Minister in Cabinet and will normally include all current Commonwealth Government ministers. In practice, therefore, the Prime Minister makes the decision in consultation with Cabinet and the other Commonwealth Government ministers. 17 The High Court has held that judicial tenure requirements apply to all courts exercising judicial powers of the Commonwealth: see New South Wales v Commonwealth (1915) 20 CLR 54; [1915] HCA 17

(Wheat case);

Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56

.

18 Constitution Ch III s 72. 19 There are some notable exceptions to this generalisation, including, probably most recently, the controversial appointment in 1975 of Justice Lionel Murphy, former Attorney-General of Australia under Prime Minister Gough Whitlam. Despite the lack of recent controversy, many continue to call for increased transparency in the selection process (see, for example, G Brennan, The Selection of Judges for Commonwealth Courts, Lecture in the Senate Occasional Lecture Series at Parliament House, Canberra, 10 August 2007 ; S Evans and J Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30 Sydney Law Review 295).

2.7 Chapter III of the Constitution defines the original jurisdiction of the High Court. Section 75 sets out a list of matters in which the High Court has constitutionally enshrined original jurisdiction. These include matters in which the Commonwealth is a party, matters between states or residents of different states and matters in which certain writs or injunctions are sought against officers of the Commonwealth. Section 76 lists a number of matters in which the Commonwealth Parliament can confer original jurisdiction on the High Court. Of this list, in particular, parliament has conferred on the High Court original jurisdiction in all matters arising under the Constitution or involving its interpretation.20 The topic of federal subject matter jurisdiction will be considered in greater detail later in this chapter.21 In practice, the High Court generally remits matters commenced within its original jurisdiction and not involving either important questions of constitutional interpretation or disputes between governments of different Australian jurisdictions,to the Federal Court of Australia.22 There is no financial minimum or maximum on the original jurisdiction of the High Court of Australia. The procedure of the High Court of Australia is primarily regulated by the Judiciary Act 1903 (Cth) and the High Court Rules 2004 (Cth).

Page 49

20 Judiciary Act 1903 (Cth) s 30(a). 21 See 2.35–2.41 below. 22 Under Judiciary Act 1903 (Cth) s 44.

2.8 The High Court of Australia has appellate jurisdiction from the Supreme Courts of each state and territory and from any state or territory court exercising federal subject matter jurisdiction.23 Each Supreme Court is the ultimate court of appeal within its state or territory and the existence of a Supreme Court of each state is required by the Constitution.24 The Constitution also arguably requires the Supreme Court of each state to have appellate jurisdiction from all other judicial bodies within that state, so that any case from a state may ultimately proceed to the High Court.25 The High Court also has appellate jurisdiction from the federal courts.26 The appellate jurisdiction of the High Court is plenary in the sense that a matter can relate exclusively to a single state or territory and need not involve any federal laws or laws of another state or territory. This plenary appellate jurisdiction is essential to the

Page 5 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice High Court’s role as the guardian and safe-keeper of the common law and rules of equity in Australia. The High Court is responsible for resolving differences of interpretation and for ensuring the uniform application and development of the common law and equity across all states and territories. Appeals to the High Court of Australia require special leave.27 The limited circumstances in which the High Court will grant special leave are discussed further in Chapter 25, 25.91 ff.

23 Constitution s 73; Judiciary Act 1903 (Cth) ss 35 and 35AA. Under the Nauru (High Court Appeals) Act 1976 (Cth), the High Court also has the power to hear appeals from the Supreme Court of Nauru. 24 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 at [8]–[9] per McHugh J, [56] per Gummow J, interpreting Constitution s 73; specifically, the High Court has held that Ch III of the Constitution requires there to be ‘a body fitting the description “the Supreme Court of a State”’ and therefore ‘it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description’ (Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [96]

, quoting Forge

v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76; [2006] HCA 44 at [63] Gummow, Hayne and Crennan JJ).

per

25 See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 at [13] per McHugh J, [54] and [65]–[71] per Gummow J; see also L Beck, ‘What is a “Supreme Court of a State”?’ (2012) 34 Sydney Law Review 295. 26 Constitution s 73. 27 Judiciary Act 1903 (Cth) ss 35(2) and 35AA(2).

2.9 Arguably, above the High Court in the Australian court hierarchy sits the Judicial Committee of the Privy Council sitting in London in the United Kingdom. The Judicial Committee of the Privy Council is a court composed of senior judges being judges of the Supreme Court of the United Kingdom (formerly the House of Lords) or of other members of the Commonwealth of Nations. The court is the highest court of appeal for all parts of the British Empire other than the United Kingdom. Technically,appeals to the Privy Council are made to the sovereign who receives advice from the Privy Council. Section 74 of the Constitution gives the High Court the power to refer a matter to the Privy Council. However, both the Federal Parliament and the High Court itself have made clear their intention that this power should never be exercised

Page 50 again.28 The High Court thus no longer regards itself as bound by decisions of the Privy Council.29

28 See Privy Council (Limitation of Appeals) Act 1968 (Cth) and Privy Council (Appeals from the High Court) Act 1975 (Cth); Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461; [1985] HCA 27 . The power has only ever been exercised once, in 1912 in Colonial Sugar Refining Co v Commonwealth (1912) 15 CLR 182; [1912] HCA 94 . For further discussion of the role of the Privy Council in the Australian judicial system, see 2.55 below. 29 Viro v R (1978) 141 CLR 88; [1978] HCA 9 at 93 per Barwick CJ, 120 per Gibbs J, 129–30 per Stephen J, 135 per Mason J, 150–551 per Jacobs J, 166 per Murphy J, 174 per Aickin J; see, for example, National Employers’Mutual General Association Ltd v Waind and Hill (No 2) [1978] 1 NSWLR 466 (NSWCA) at 476–77 per Moffitt P (Reynolds, Hutley, Glass and Samuels JJA separately agreeing).

Federal courts — the Federal Court of Australia

Page 6 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

2.10 The Federal Court of Australia is a court established by the Commonwealth Parliament by the Federal Court of Australia Act 1976 (Cth) under s 71 of Ch III of the Constitution. The Federal Court does not have general jurisdiction, but rather its jurisdiction is limited to that conferred on it by the Commonwealth Parliament, which in turn is limited by the Constitution.30 Originally, the jurisdiction of the court was limited to that conferred on it by specific Acts of the Commonwealth Parliament.31 Since 1997, however, and subject to limited exceptions,32 the court has had original jurisdiction to hear all civil cases where federal law is part of the dispute.33 Key areas of the court’s jurisdiction include matters involving employment, industrial relations, bankruptcy, administrative law, migration law, human rights, privacy, corporations law, intellectual property, competition law and consumer law. Subject to certain exceptions, the court also has jurisdiction to hear cases involving constitutional interpretation,34 in which the Commonwealth is seeking an injunction or a declaration35 or in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.36 There are no generally applicable financial limits on the jurisdiction of the Federal Court.

Page 51

30 See 2.44–2.45 below for an example of the limits imposed by the Constitution on the jurisdiction of federal courts. 31 Some of the most significant of these included the ability to hear appeals under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth), cases under the Trade Practices Act 1974 (Cth) and the Native Title Act 1993 (Cth) and, from 1991, cases under the different corporations laws in Australia, over which the court had concurrent jurisdiction with the courts of the relevant states and territories. 32 For example, legislative exceptions such as those in ss 476A and 476B of the Migration Act 1958 (Cth), which limit the jurisdiction of the Federal Court in certain migration cases and thus requiring them to be heard either by the Federal Circuit Court or the High Court. 33 Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) confers upon the Federal Court jurisdiction in any non-criminal matter arising under the laws created by the Commonwealth Parliament. See 2.35–2.41 below for the discussion of federal subject matter jurisdiction. 34 Judiciary Act 1903 (Cth) s 39B(1A)(b). 35 Judiciary Act 1903 (Cth) s 39B(1A)(a). 36 Judiciary Act 1903 (Cth) s 39B(1). The Federal Court’s power to hear these writs or applications for injunctions is not enshrined to the same extent as the High Court’s power, as the Federal Court’s power is granted by ordinary Commonwealth statute rather than by the Constitution.

2.11 The Federal Court of Australia has eight registries, one in the capital city of each Australian state and of the Northern Territory and the Australian Capital Territory. The Federal Court has both a trial division, in which a case is generally heard and determined by a single judge,37 and an appellate division known as the Full Court, in which generally three, and sometimes five, judges sit to determine an appeal. Although judges in the Federal Court may be based in a particular city, they are appointed as judges of the single, national, Federal Court. Judges sit as both trial judges and as appellate judges, on different matters. The primary rules governing the civil procedure of the Federal Court are the Federal Court Rules 2011 (Cth).

37 The only exception to date to the general rule that a case is heard by a single judge was the lengthy patent and designs dispute between Apple Inc and Samsung Electronics Co Ltd commenced in the New South Wales Registry in February

Page 7 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 2013. To manage the complexity of the case, two judges, Justices Bennett and Yates, sat concurrently, but were responsible for determining different parts of the dispute. The case settled before judgment was handed down.

2.12 Since 1997, the Federal Court has operated a ‘docket system’ across all of its registries, based on the system of case management used by federal courts in the United States.38 The docket system involves a single judge being assigned to a case so that the judge can play an active role in managing that case from start to finish, including all preliminary directions and interlocutory hearings. Beginning in 2011, the Federal Court also operated a ‘Fast Track’, which provided a simplified and expedited procedure for certain commercial and intellectual property disputes.39 More recently, we have seen the Federal Court introduce the National Court Framework.40 At a very high level, the National Court Framework: 1. establishes nine National Practice Areas (including a number of sub-areas) with specialist judges assigned to each area; 2. establishes duty procedures including duty judges for urgent applications; 3. broadens the applicability of Fast Track procedures to appropriate cases across any of the nine National Practice Areas; and 4. establishes key principles of case management across all National Practice Areas. The Federal Court was also the first Australian court to implement a fully electronic court file system.41 The topic of case management of Australian courts will be

Page 52 considered in detail in Chapter 11 and the topic of specific procedural tracks in Australian courts will be considered in detail in Chapter 12. The Federal Court has been a leader in terms of its focus on the overriding objective and on civil procedure reform.

38 A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ [2015] FedJSchol 23 at [7]; see also C Sage, T Wright and C Morris, ‘Case Management Reform:A Study of the Federal Court’s Individual Docket System’, Law and Justice Foundation of New South Wales, June 2002 . 39 Practice Note CM 8 (Fast Track Directions, Federal Court of Australia, Keane CJ, 1 August 2011) (now revoked and replaced by the new National Court Framework CPN-1). 40 Central Practice Note (National Court Framework and Case Management (CPN-1), Federal Court of Australia, Allsop CJ, 25 October 2016) ; A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ [2015] FedJSchol 23 at [10]–[22]. 41 A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ [2015] FedJSchol 23 at [9].

Federal courts — the Family Court of Australia

2.13 While not a focus in this text, the Federal Parliament has also established a specialist court, the Family Court of Australia, to deal with family law matters in all states and territories of Australia (with the exception of the state of Western Australia). The court was established in January 1976 under the Family Law Act 1975 (Cth), an Act which significantly reformed family law in Australia. The Act established a system of no-fault divorce throughout Australia and covers issues such as property separation, parenting arrangements and financial maintenance. The Family

Page 8 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice Court of Australia sits alongside the Federal Court of Australia in the court hierarchy, with its own court of appeal, the Full Court of the Family Court of Australia, and appeals from the Full Court lie to the High Court of Australia. Many family law matters are now heard by the Federal Circuit Court. In Western Australia, the court instead charged with hearing and determining family law matters is the Family Court of Western Australia, a state court similarly established in 1976 by the Family Court Act 1975 (WA) (now under the Family Court Act 1997 (WA)), invested with federal jurisdiction to determine family law matters under the Family Law Act 1975 (Cth). The single court operates in two divisions, the Family Court itself and a Magistrates Court. Judges (but not magistrates) of the Family Court of Western Australia hold dual appointments and are also judges of the Family Court of Australia. Appeals in matters within federal jurisdiction lie to the Family Court of Australia and, in non-federal matters, appeals from decisions of a magistrate lie to a single judge of the Family Court of Western Australia and appeals from a judge of the Family Court of Western Australia lie to the Court of Appeals of the Supreme Court of Western Australia.42 Whereas, in other states and territories, non-federal areas of family law, such as adoption and surrogacy, are generally dealt with by the general state and territory courts, these matters are usually dealt with by the Family Court of Western Australia.

42 Family Court Act 1997 (WA) Pt 7.

Federal courts — the Federal Circuit Court of Australia

2.14 The Federal Circuit Court of Australia, formerly the Federal Magistrates Court of Australia, is a further statutory court established by the Federal Circuit Court of Australia Act 1999 (Cth) under s 71 of Ch III of the Constitution.43 The Federal Circuit Court sits below the Federal Court and the Family Court of Australia. The court was

Page 53 established in 1999 to help manage the ever-incresing amount of federal law work. As for the Federal Court, the jurisdiction of the Federal Circuit Court is not general, but limited to that conferred on it by the Commonwealth Parliament. There is no general conferral of federal jurisdiction on the Federal Circuit Court similar to the conferral of jurisdiction on the Federal Court, but many federal laws include provision for matters to be heard by the Federal Circuit Court.44 The court has been given jurisdiction to hear and determine matters in the same key federal law areas mentioned above for the Federal Court45 and also in family law cases. There are no overall financial limits on the court’s jurisdiction to award damages, but some legislation imposes specific limits for particular matters.46 The court has two divisions, a Fair Work division that hears employment and industrial relations cases and a general division that hears all other cases.47 The court has seats in major Australian cities and also conducts special sittings in regional areas all around Australia. The Federal Circuit Court’s general civil procedure is governed by the Federal Circuit Court Rules 2001 (Cth).

43 One further statutory federal court established under s 71 of the Constitution, and sitting at the same level as the Federal Court of Australia in the judicial hierarchy, is the Family Court of Australia. As this is a specialist court rather than one of broad civil jurisdiction, this court will not be considered in detail. 44 See, for example, Federal Magistrates (Consequential Amendments) Act 1999 (Cth) and Jurisdiction of Courts (Miscellaneous Amendments) Act 2000 (Cth). 45 See 2.10 above. 46 For example, the court can only award damages up to $750,000 in competition and consumer law cases (Competition and Consumer Act 2010 (Cth) s 86AA). 47 Federal Circuit Court of Australia Act 1999 (Cth) s 10A, introduced by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). All proceedings commenced after 1 July 2009 must be commenced in one of these two divisions.

State and territory courts

Page 9 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

2.15 The state and territory civil courts follow a similar hierarchical structure as the federal courts. At the top of the court structure in each state and the Australian Capital Territory, Norfolk Island and the Northern Territory, sits a Supreme Court.48 Each Supreme Court is the superior court of record for the state or territory with unlimited, general jurisdiction, including appellate jurisdiction from decisions of lower courts in the relevant state or territory hierarchy. Importantly,all the state and territory courts also have federal jurisdiction under s 39 of the Judiciary Act 1903 (Cth).

48 While a Supreme Court sits at the apex of the relevant state or territory court hierarchy, it is always possible to apply for special leave to appeal a decision of a Supreme Court to the High Court of Australia.

2.16 Below the Supreme Court are a number of intermediate courts. The number of intermediate courts varies between states and territories, broadly reflecting the workload of the courts in each state and territory. Every state has a Magistrates Court,except in New South Wales where the equivalent court is called the Local Court. The Australian Capital Territory also has a Magistrates Court, the Northern Territory a Local Court, and Norfolk Island a Court of Petty Sessions. The states of New South Wales, Queensland, South Australia and Western Australia have a second, higher, intermediate court known as the District Court and Victoria has an equivalent court known as the County Court. Intermediate courts generally have substantially the same general jurisdiction as the Supreme Court, subject to certain specific matters being reserved for higher courts, and often subject to financial limits on the amount

Page 54 of damages the court can award. At the base of each state and territory hierarchy is a small claims court or tribunal (in Norfolk Island, Tasmania and Western Australia small claims are handled as a procedurally streamlined division of the Magistrates Court/Court of Petty Sessions). The procedure and rules of evidence for small claims are usually significantly simpler than more general civil procedure with which we are primarily concerned in this text. The hierarchy of the courts in each state and territory is shown in the diagram at the end of this chapter. The jurisdictional differences between the courts is outlined further in Chapter 4, 4.36 ff.

2.17 The general jurisdiction of civil courts may be narrowed or enlarged by statute, provided that it is consistent with the Constitution.49 As mentioned above, the jurisdiction of lower courts is often limited by financial limits and certain specific matters are also usually reserved for higher courts. Another example comes from New South Wales, where subject matter jurisdiction in claims for damages as a result of dust-related health conditions is removed from the general civil courts and given exclusively to the Dust Diseases Tribunal, a specialist tribunal established specifically to hear claims of this kind.50

49 Both in terms of federal jurisdiction conferral being consistent with the Constitution and also consistent with the Kable doctrine (any conferral of jurisdiction must maintain the court as a fit receptacle for investment with federal jurisdiction) (see generally Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Totani (2010) 242 CLR 1; [2010] HCA 39

).

; South Australia v

Page 10 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 50 Dust Diseases Tribunal Act 1989 (NSW) s 11(1). An example application of interstate jurisdictional issues involving this tribunal is discussed at 2.51 below.

2.18 All Australian civil courts are procedurally fused courts with subject matter jurisdiction covering, at least in the Supreme Courts, both common law and equity.51 The High Court has held that there is only one system of common law and equity in Australia.52 Differences in substantive law between states and territories are therefore all statutory.53 Where there are statutory differences between states and territories, choice of law rules mean that the substantive law to be applied is generally the

Page 55 same regardless of the state or territory in which the action is commenced.54 The practical problem of matters being commenced in an inappropriate jurisdiction will be considered in the next part of this chapter.55

51 Courts of common law and equity were procedurally fused across most Australian jurisdictions following the English Judicature Acts of 1873 and 1875; this was adopted in every state except New South Wales. For quite a while New South Wales operated as somewhat of a bastion of legal history, maintaining separate courts of law and equity right up until 1972 (see Supreme Court Act 1970 (NSW)). This resistance has had a profound effect on the development of the law and equity in Australia, with Australian jurisprudence drawing a much stricter doctrinal separation between the two than the rest of the common law world. 52 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; [1997] HCA 25 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. See also John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at[2],[3],[15]

per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Mabo v Queensland (No

2) (1992) 175 CLR 1 at 29,67; [1992] HCA 23 Gaudron JJ at 77).

per Brennan J (see also Mason CJ and McHugh J at 15; Deane and

53 As a practical matter, however, if appellate courts in different Australian jurisdictions have reached inconsistent conclusions on matters of general law, the courts in those jurisdictions will be bound to follow the appellate decisions in their own jurisdiction until the High Court clarifies the definitive position. 54 These choice of law rules, being largely common law rules, are generally the same across Australia. A full consideration of choice of law rules is beyond the scope of this text, but by way of example, the general Australian common law choice of law rule for torts is that the applicable substantive law is that of the lex loci delicti (the law of the place where the tort occurred, that is, where the damage was suffered) (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [87],[96] ). This same rule applies whether the court is determining the applicability of the laws of different states or territories of Australia or of the laws of Australia or some international jurisdiction (see, for example, Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 ). The High Court has also been clear that questions of jurisdiction are distinct from questions of applicable law, and thus the choice of law rules to apply are not directly affected whether or not the matter is within federal jurisdiction (Rizeq v Western Australia [2017] HCA 23 at [9]–[11]

per Kiefel CJ, [53] per Bell, Gageler, Keane, Nettle and Gordon JJ, citing

Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 30; [1965] HCA 61

per Kitto J).

55 See 2.46–2.52 below for a discussion of the rules to control forum shopping and allowing cases to be moved between Australian jurisdictions.

Uniform civil procedure rules across Australia

2.19 The rules of civil procedure are different in each Australian jurisdiction and, in most states and territories, the rules vary between different courts. This is despite the fact that each system of rules deals with most of the same issues and in a similar way. Objections to unification of civil procedure generally run along the lines of there being nothing

Page 11 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice more intrinsic to the operation and function of a court than its rules of civil procedure, and that different courts have different rules based on the volume, type or value of their work, their level of funding or their administrative organisation. These arguments carry little weight. Both New South Wales and Queensland have adopted uniform civil procedure rules across their civil courts,despite the courts at different levels dealing with different types and volumes of cases and having different levels of funding and administrative management systems. Further, the broad similarity of civil procedure rules, both across the Australian courts and with the Civil Procedure Rules in England and Wales, demonstrates that most rules have applicability across borders including across different constitutional systems.

2.20 2.20 There are tangible benefits to be had from unification of civil procedure rules across Australia. The Productivity Commission in its 2014 report on Access to Justice Arrangements, although keen to stress its disinterest in uniformity for uniformity’s sake,56 strongly encourages greater consistency in court processes particularly around case management, case allocation, discovery and the use of expert witnesses57 and recommends all Australian jurisdictions adopt a single particular approach to many

Page 56 aspects of civil procedure.58 At a more general level, most practitioners practise across at least two Australian jurisdictions (federal and the state and territory in which the practitioner is based). It is also increasingly common for practitioners to practise across multiple states and territories and to move between states and territories. A unified system of civil procedure reduces the need for practitioners to familiarise themselves with particular rules in each jurisdiction and thus saves time and legal costs.Additionally, it would simplify and focus legal education on Australian civil procedure as a whole and better enable scholars and practitioners to discuss civil procedure reforms. Indeed, many sections of this text could be greatly simplified. Chapter 1 already showed some of the confusing interjurisdictional terminological complexities surrounding something as fundamental as the overriding objective.

56 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, Vol 1, p 203. 57 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, Vol 1, p 36. 58 See almost all the recommendations in Chs 10–14 and recommendations 17.1, 17.2 and 18.3 in Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, Vol 1,pp 51–61.

2.21 The main difficulty with the harmonisation of civil procedure across Australia is, of course, the practical one. Harmonisation is bound to be a huge undertaking that would require the agreement of the Commonwealth and all states and territories.To be successful, it would require broad acceptance by key stakeholders including the judiciary of each Australian civil court and legal practitioners in each Australian jurisdiction. Parallels can be drawn with the uniform evidence legislation. The endeavour has been largely successful at unifying evidence law across most Australian jurisdictions. And while Queensland, South Australia and Western Australia are yet to enact the uniform legislation more fully, many areas of their respective Evidence Acts replicate provisions from the uniform legislation. Uniformity of evidence law is often seen as a priority because of evidence law’s ability to substantively affect the outcome of litigation. Post AON Risk Services59 and the increased focus on the overriding objective, it is suggested that rules of civil procedure should be cast in the same light since they impact substantive justice according to the three-dimensional conception of justice. While harmonisation of civil procedure rules across Australia is undoubtedly an enormous undertaking, it is one that will prove greatly beneficial to the Australian civil justice system and in particular to court users.

Page 12 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 59 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 discussed in Chapter 1.

. This case is

Jurisdiction of the Australian courts The meaning of ‘jurisdiction’

2.22 Somewhat confusingly, the word ‘jurisdiction’ has three meanings at common law; Gaudron, Gummow and Hayne JJ have articulated them as follows:60 ‘Jurisdiction’ may be used (i) to describe the amenability of a defendant to the court’s writ and the geographical reach of that writ, or (ii) rather differently, to identify the

Page 57 subject-matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or ‘law area’ or ‘law district’.

Jurisdiction in the third sense identified by their Honours is the sense in which it is used when referring to the ‘Australian jurisdictions’, meaning, the ‘law areas’ of each state and territory and the Australian federal‘law area’. Jurisdiction in the first sense, that concerning the reach of a court’s writ, is commonly referred to as ‘personal jurisdiction’ (or ‘territorial jurisdiction’).61 Jurisdiction in the second sense is commonly referred to as ‘subject-matter jurisdiction’. Before any Australian court can determine a claim, that court must have both personal jurisdiction over the defendant and subject matter jurisdiction to hear the claim.62 It is jurisdiction in these first two senses that is central to the discussion in this part, and both will be considered in greater detail below.

60 Lipohar v R (1999) 200 CLR 485; [1999] HCA 65 at [79]

.

61 The terms ‘personal jurisdiction’ (jurisdiction ‘in personam’) and ‘territorial jurisdiction’ are sometimes given different meanings in different contexts. Indeed, US jurisprudence draws a distinction between personal and territorial jurisdiction. All, however, are concerned with a court’s power to render a determination binding on a particular legal person. This text adopts the term ‘personal jurisdiction’ as the general descriptor because,as will be outlined in the next paragraph, it is primarily concerned with the court’s power to make orders binding on particular legal persons. 62 Flaherty v Girgis (1978) 162 CLR 574; [1987] HCA 17 at [41]

per Mason ACJ, Wilson and Dawson JJ.

2.23 Our focus in this part is on the jurisdiction of the federal courts and the courts of the different states and territories. The interface between Australian courts and foreign courts is touched on in the discussion of service out of the jurisdiction in Chapter 5, 5.124 ff and in the discussion of the defendant’s ability to object to the jurisdiction of the Australian courts on the grounds of forum non conveniens in Chapter 5, 5.155 ff. In many cases, multiple courts within a particular state or territory, or within the federal court hierarchy, will have jurisdiction over a given dispute. The choice of the appropriate court in which to commence the action should, therefore, be primarily driven by the overriding objective and, in particular, the goal of minimising cost, delay and wasted resources. Choice of court within a particular Australian jurisdiction is dealt with in more detail in Chapter 4, 4.36 ff.

Page 13 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

Personal jurisdiction

2.24 Personal jurisdiction is concerned with the court’s power to make an order binding on a particular legal person. If a court does not have personal jurisdiction over a legal person, it cannot make any order binding that person and, therefore,lacks the authority to determine the rights and liabilities of that person. Personal jurisdiction is fundamentally a matter of sovereignty and constitutional arrangements.63 Like any other government body, a court only has authority over some particular polity. The polity over which the Federal Government of the Commonwealth of Australia has sovereignty is the territory of the sovereign state of Australia. For the governments of each state and territory, it is the territory of the particular state or territory. Absent submission of a legal person to the authority of a court, there must be a mechanism,

Page 58 involving at least some link to the polity over which the court has authority, to establish that court’s authority over that legal person. For this reason, personal jurisdiction in Australian law is equally referred to as ‘territorial jurisdiction’.

63 Laurie v Carroll (1958) 98 CLR 310 at 323; [1958] HCA 4

.

2.25 In line with the long-established position in English common law, an Australian court has personal jurisdiction over a person if that person either submits to the jurisdiction of the court or is validly served with process of the court.64 It is submission or service that is the source of a court’s authority over a legal person and that renders a court competent to make a final and legally binding determination of that person’s rights and liabilities. While this principle can be stated simply, significant complexities attend the topic of personal jurisdiction, particularly so in the context of private international law.65 Our discussion will therefore concentrate on setting out a core understanding of how the Australian courts obtain personal jurisdiction over the parties before them.

64 Flaherty v Girgis (1978) 162 CLR 574; [1987] HCA 17 at [2]

per Brennan J.

65 The law of jurisdiction is a long established field of legal scholarship in and of itself. There are numerous texts on the subject, the most authoritative of which, in the context of private international law, is Lord Collins of Mapesbury et al (eds), Dicey, Morris & Collins on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012.

2.26 Australian courts obtain personal jurisdiction over a plaintiff by submission. By commencing proceedings in a particular court, the plaintiff agrees to submit to the jurisdiction of that court. In many cases, a defendant will also submit to the jurisdiction of the court. If all plaintiffs and defendants submit to the jurisdiction of the court, the question of personal jurisdiction never arises. For a defendant, whether an individual or a corporation, personal jurisdiction by submission is usually established by:66 1. the defendant agreeing to the jurisdiction of the court, for example, by agreeing to a jurisdiction clause in a contract or by agreeing, after a dispute arises, to submit to the dispute to that court; or

Page 14 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 2. the defendant entering an unconditional appearance in the proceedings (see Chapter 6).

66 Flaherty v Girgis (1978) 162 CLR 574; [1987] HCA 17 at [2]

per Brennan J.

2.27 For an Australian court to have personal jurisdiction over a defendant by service, it must be shown that the defendant has been validly served with an originating process of the relevant court. While the requirements for commencement and service are discussed in detail in later chapters, for our purposes it is sufficient to note that service can only be valid if:67 1. the defendant is served with an originating process of the court while voluntarily present within the territory of the relevant court; or 2. service is otherwise permitted by statute, for example, where service is permitted outside the territory of the court (in accordance with the rules of the relevant court created pursuant to the statute establishing the court), where the matter

Page 59   has a sufficient nexus to the territory of the court. In Australian jurisprudence, jurisdiction by service under this limb is often termed ‘long-arm’ jurisdiction.68

67 Laurie v Carroll (1958) 98 CLR 310 at 323–4 ; [1958] HCA 4

.

68 See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [13],[116]

fn 138; Australian

Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [2]

.

Personal jurisdiction — individuals within the territory of the court

2.28 The first and most straightforward case is where the defendant is an individual who is voluntarily present within the territory of the court. For the federal courts, the territory of the court is the sovereign territory of the Commonwealth of Australia as established by the Constitution.69 For the state and territory courts, the territory of the court is the sovereign territory of the relevant state or territory.70 Voluntary presence simply requires the defendant to be present within the relevant territory, however fleetingly,71 other than in circumstances where the defendant is present in the jurisdiction against their will as a result of some unlawful coercion.72 Unlawful coercion might, for example, occur if the defendant is only present in the jurisdiction because the defendant has been kidnapped and unlawfully brought to the territory of the court. The requirements for service of an originating process on an individual within the territory of the court are governed by the rules of the relevant court. In general, Australian court rules require that service of an individual with an originating process be effected in person.73

Page 15 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 69 Constitution s 71. This includes not only land, but also the territorial waters of the Commonwealth of Australia. 70 Laurie v Carroll (1958) 98 CLR 310 at 323; [1958] HCA 4 . This includes the territorial waters of the relevant state or territory (see, for example, Coastal Waters (State Powers) Act 1980 (Cth) and Coastal Waters (State Title) Act 1980 (Cth)). 71 See, for example, Maharanee of Baroda v Wildenstein [1972] 2 QB 283

.

72 See R v Horseferry Road Magistrates Court; Ex parte Bennett [1994] 1 AC 42 ; [1993] UKHL 10 (in this case the defendant was present in the jurisdiction against their will, but the coercion was not clearly unlawful. Nevertheless, service was held to amount to an abuse of process of the court). 73 See, for example, Federal Court Rules 2011 (Cth) rr 8.06 and 10.01. The requirements for service are considered in more detail in Chapter 5.

Personal jurisdiction — individuals in another state or territory

2.29 If the defendant is an individual who is voluntarily present in an Australian state or territory other than the state or territory of the issuing court, the individual may be served under the Service and Execution of Process Act 1992 (Cth) (SEPA). Service is generally effected by the same means as set out in the rules of the issuing court, with the additional requirement that the originating process be accompanied by a prescribed notice.74 The effect of the SEPA regime, therefore, is that individuals voluntarily present in any Australian state or territory are amenable to the jurisdiction of any Australian court.

Page 60

74 Service and Execution of Process Act 1992 (Cth) (SEPA) ss 15(1), 15(2) and 16. See Chapter 5, 5.118 ff for the detailed requirements for service under SEPA.

Personal jurisdiction — individuals overseas

2.30 Where a defendant is not present within the sovereign territory of Australia (that is, is overseas), whether or not, and how, that defendant is able to be served with process of the court, is a matter for the rules of the relevant court. The court rules for the federal courts and the state and territory courts generally allow a plaintiff to serve a defendant outside Australia if, and only if, there is a sufficient nexus between the matter or defendant and the territory of the relevant court.Some examples of what may be considered a sufficient territorial nexus include, if the matter: 1. concerns a tort committed in Australia;75 2. concerns damage that has been suffered in Australia as a result of a tort (wherever committed);76 or 3. is one the parties to a contract have agreed that the relevant court has jurisdiction to hear.77 Service of a defendant outside Australia is discussed in further detail in Chapter 5, 5.124 ff.

75 See, for example, Federal Court Rules 2011 (Cth) r 10.42 item 4. 76 See, for example, Federal Court Rules 2011 (Cth) r 10.42 item 5.

Page 16 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 77 See, for example, Federal Court Rules 2011 (Cth) r 10.42 item 19.

Personal jurisdiction — corporations

2.31 Where the defendant is a corporation, at common law, the position was the same as that for an individual. The starting point was whether the corporation could be regarded as being within the territory of the court for the purpose of service.78 Assessing the presence of a corporation is a somewhat more complicated affair than for an individual. The test at common law was whether the corporation had (i) been carrying on business; (ii) at a fixed place within the territory of the court; and (iii) for a sufficiently substantial period of time.79 Today, however, rather than relying on the common law rules, service on corporations and other organisations (such as unincorporated associations and partnerships) is more commonly effected under statute. The Corporations Act 2001 (Cth) sets out the method of service of a process of any Australian court on any Australian or foreign corporation registered under that Act.80 All foreign corporations carrying on business in Australia are required to register an Australian address for service under that Act.81 If service of a process of a state or territory court is to occur in another state or territory, service must be effected in accordance with the SEPA rules.82 Where a corporation or body is not registered

Page 61 under the Corporations Act 2001 (Cth) and the SEPA rules do not apply, as for individuals, service may be effected in accordance with the ‘long-arm’ jurisdiction rules that permit service outside the territory of the court where there is a sufficient nexus with the court’s territory. All-in-all, the breadth of the rules providing for service of corporations means that almost any corporation whether foreign or domestic (or like body) that one would have reasonable cause to sue in an Australian court can be sued in a court in any Australian jurisdiction.

78 Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715 Basis Ltd [1985] VR 725 at 731

; BHP Petroleum Pty Ltd v Oil

at 718

; BHP Petroleum Pty Ltd v Oil

.

79 Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715 Basis Ltd [1985] VR 725 at 731 Sydney, 2005, pp 63–6.

at 718

; see further M Keyes, Jurisdiction in International Litigation, Federation Press,

80 Corporations Act 2001 (Cth) ss 109X and 601CX. 81 Corporations Act 2001 (Cth) s 601CD. 82 SEPA s 15(3) with s 9 and s 15(4) with s 10. SEPA s 9(9) makes clear that in this case the SEPA rules override the rules for service under ss 109X and 601CX of the Corporations Act 2001 (Cth). Service under SEPA is largely the same as under the Corporations Act 2001 (Cth) with an additional requirement under s 16 for information notices to be attached to the process served.

Subject matter jurisdiction

2.32 While personal jurisdiction is concerned with a court’s authority to make orders binding the parties to proceedings, subject matter jurisdiction is concerned with the court’s power to make a decision concerning the subject matter of particular proceedings. It is concerned with what is within, and what is without, the court’s power to decide. As for personal jurisdiction, subject matter jurisdiction is an area of enormous complexity. However, unlike personal jurisdiction,which is a fairly consolidated field of legal scholarship, issues of subject matter jurisdiction cut across

Page 17 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice many and varied areas of law.83 This section aims to provide an overview of the subject matter jurisdiction of the Australian courts in civil cases.

83 For instance, subject matter jurisdiction issues frequently arise in administrative law (for example, when considering the justiciability of certain administrative decisions), in relation to similar questions in constitutional law (for example,when considering the role of the court and the scope of its powers in relation to the other arms of government), in property law/private international law (for example, around the applicability and scope of the Moçambique rule — the rule whereby a court does not have jurisdiction to determine the question of title to foreign land — see, for example, Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 520; [2002] HCA 10 at [76] suggesting that the rule may be of questionable standing in Australia; the rule takes its name from British South Africa Co v Companhia de Moçambique [1893] AC 602

; see Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30

also the exception commonly known as the rule in Penn v Lord Baltimore (1750) 27 ER 1132 law.

; see

) and in procedural

2.33 The fundamental aspects of the subject matter jurisdiction of the different Australian courts are set out in the discussion of these courts earlier in this chapter.84 Importantly, the High Court of Australia has original jurisdiction as provided for in the Constitution and has plenary appellate jurisdiction for matters determined by the state and territory Supreme Courts and the other federal courts. The other federal courts are creatures of statute, without general jurisdiction, but only jurisdiction conferred by federal legislation. By contrast, the state and territory Supreme Courts have general subject matter jurisdiction to hear and determine almost all claims under statute, at common law or in equity, arising anywhere in the world (subject to any statutory modification). Federal jurisdiction has also been conferred on the state and territory Supreme Courts by s 39 of the Judiciary Act 1903 (Cth). The subject matter jurisdiction of the intermediate and lower courts in each state and territory largely reflects that of the Supreme Court with some matters reserved for the higher courts, including by way of financial caps.

Page 62

84 See 2.6–2.18 above.

2.34 Historically, the issue of subject matter jurisdiction has not frequently arisen in Australian jurisprudence.85 This is predominantly due to the breadth of the subject matter jurisdiction of most state and territory courts, which includes federal jurisdiction. Subject to statutory exceptions and limited general law exceptions,86 state and territory courts can usually hear any matter where the court has personal jurisdiction. However, the issue has become increasingly important as a result of:87 1. the establishment of the Federal Court and Family Court, being courts of only federal jurisdiction; and 2. the increasing prevalence of statutes which modify the subject matter jurisdiction of courts.88

85 See M E J Black, ‘The Federal Court of Australia: The First 30 Years — A Survey on the Occasion of Two Anniversaries’ (2007) 31 Melbourne University Law Review 1017 at 1018–19. Indeed,historically, the focus of most

Page 18 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice High Court cases on jurisdiction has squarely been on issues of personal jurisdiction (M Keyes, Jurisdiction in International Litigation, Federation Press, Sydney, 2005, p 69; see,for example, Laurie v Carroll (1958) 98 CLR 310 at 322; [1958] HCA 4

).

86 These limited general law exceptions include the Moçambique rule around determining questions of title to foreign land mentioned above at note 83, acts of a foreign state within the territory of the state(see Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479; [1906] HCA 88

; Attorney-General(UK) v Heinemann Publishers Australia Pty Ltd (Spycatcher

case) (1988) 165 CLR 30 at 40; [1988] HCA 25 per Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ) and likely also issues of foreign registered intellectual property rights (see Potter v Broken Hill Pty Co Ltd [1905] VLR 612

; affirmed in Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479; [1906] HCA 88

).

87 M Keyes, Jurisdiction in International Litigation, Federation Press, Sydney, 2005, p 69. 88 See, for example, the limitations on the jurisdiction of the Federal Court in migration decisions in Migration Act 1958 (Cth) s 476A; and the exclusive jurisdiction conferred on the Federal Court by Trade Practices Act 1974 (Cth) s 86 (now repealed) now Competition and Consumer Act 2010 (Cth) s 86.

Subject matter jurisdiction — federal jurisdiction

2.35 Federal subject matter jurisdiction is defined by Ch III of the Constitution. In particular, s 75 sets out the matters in which the High Court (the sole federal court established by the Constitution) has original jurisdiction. These are:89 … all matters: (a)

arising under any treaty;

(b)

affecting consuls or other representatives of other countries;

(c)

in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(d)

between States, or between residents of different States, or between a State and a resident of another State;

(e)

in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

Section 76 then adds a list of matters in which the Commonwealth Parliament can confer jurisdiction on the High Court. These are matters:90

Page 62   (a)

arising under th[e] Constitution, or involving its interpretation;

(b)

arising under any laws made by the Parliament;

(c)

of Admiralty and maritime jurisdiction;

(d)

relating to the same subject-matter claimed under the laws of different States.

Section 71 gives the Commonwealth Parliament the power to establish additional federal courts invested with federal jurisdiction. Parliament has invested both the High Court and the Federal Court with original jurisdiction in matters arising under the Constitution or involving its interpretation.91 Parliament has invested the Federal Court with reasonably broad jurisdiction in admiralty and maritime cases92 and, most importantly, with jurisdiction in noncriminal matters arising under any federal legislation.93 Section 77(iii) also gives the Commonwealth Parliament the power to invest state courts with federal jurisdiction. Parliament has done this, providing that, with a few caveats, the state courts have jurisdiction ‘in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it’.94

Page 19 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

89 Constitution s 75. 90 Constitution s 76. 91 Judiciary Act 1903 (Cth) ss 30 and 39B(1A)(b). 92 See Admiralty Act 1988 (Cth). 93 Judiciary Act 1903 (Cth) s 39B(1A)(c). 94 Judiciary Act 1903 (Cth) s 39(2).

2.36 The fact that the High Court’s original jurisdiction in s 76 is constitutionally enshrined is important. It has been critical in cases where the Commonwealth Parliament has passed legislation containing privative clauses (sometimes termed ‘ouster clauses’). Privative clauses attempt to oust the jurisdiction of the courts to review certain administrative decisions. They have tended to be included in legislation involving highly political subject matters such as immigration.95 The High Court has held that privative clauses are invalid to the extent they would completely deprive the High Court of its constitutionally enshrined original jurisdiction,96 particularly the court’s original jurisdiction to grant the administrative law writs of mandamus and prohibition and also injunctions against officers of the Commonwealth. Consequently, absent a constitutional referendum, parliament cannot remove these avenues of challenge to Commonwealth administrative decisions. This also means that, in some cases, the only way to challenge certain administrative decisions may be to commence an action in the High Court within its original jurisdiction.

95 See, for example, Migration Act 1958 (Cth) s 474. 96 R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 CLR 476; [2003] HCA 2

; Plaintiff S157/2002 v Commonwealth (2003) 211

.

2.37 A second important aspect of federal jurisdiction as defined by ss 75 and 76 of the Constitution stems from the use of the word ‘matter’ in those sections. Federal jurisdiction does not attach to a cause of action,97 nor does it attach to a set of proceedings;98 rather, it attaches to a matter.99 Once part of the matter involves the

Page 64 exercise of federal jurisdiction, the whole matter is within federal jurisdiction. What then constitutes a matter? The High Court has held that a matter means a single controversy.100 The definition of a controversy parallels the reasoning in cases on the not dissimilar issues of joinder and of consolidation of proceedings.101 Gummow and Hayne JJ of the High Court nicely summarised the law as follows:102 What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’.103 There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’,104 notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’.105 So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other,106 as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the

Page 20 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice other otiose or necessitate its determination. Conversely, claims which are ‘completely disparate’,107 ‘completely separate and distinct’108 or ‘distinct and unrelated’109 are not part of the same matter. Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

Defining jurisdiction by reference to a single controversy avoids any need to split up a case and potentially pursue different causes of action in different courts based on whether they involve federal or state/territory jurisdiction. This would lead to additional disputes over jurisdiction, to duplication of proceedings (and the attendant waste of time and resources) and to potentially inconsistent findings of fact.110 This approach

Page 65 to the divide between federal and state or territory subject matter jurisdiction is both sensible and practical.

97 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 at [21]–[22]

per Mason, Murphy, Brennan and Deane JJ.

98 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 at [10] quoting Carter v Egg & Egg Pulp Marketing Board (Victoria) (1942) 66 CLR 557 at 578; [1942] HCA 30 CJ.

per Gibbs J, per Latham

99 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 at 592 Brennan and Deane JJ.

[24] per Gibbs CJ, 608 [29] per Mason, Murphy,

100 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 at 592 Brennan and Deane JJ.

[24] per Gibbs CJ, 608 [29] per Mason, Murphy,

101 The topics of joinder of parties and consolidation of proceedings are considered in Chapter 13. 102 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [140]–[141] (footnotes reference the sources cited in the judgment), quoted by J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’[2007] FedJSchol 15 (second para under heading ‘The meaning of “matter’’’). 103 Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12 at [30]

per Mason, Murphy, Brennan and Deane JJ.

104 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512; [1981] HCA 7 (with whom Stephen J agreed). 105 Fencott v Muller (1983) 152 CLR 570 at 607; [1983] HCA 12 at [28]

per Mason J

per Mason J, Murphy, Brennan and Deane JJ.

106 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512; [1981] HCA 7 at [34] Mason J. 107 Felton v Mulligan (1971) 124 CLR 367 at 373; [1971] HCA 39 at [8]

per

per Barwick CJ.

108 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 521; [1981] HCA 7 at [7] Murphy J.

per

109 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 481–2; [1980] HCA 32 at [25]–[26] Stephen, Mason, Aickin and Wilson JJ.

per

110 Fencott v Muller (1983) 152 CLR 570 at 609; [1983] HCA 12 at [32]

per Mason, Murphy, Brennan and Deane JJ.

Page 21 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

2.38 A consequence of defining jurisdiction in this way is that a federal court hearing a matter with one or more federal aspects will find itself hearing all aspects of the matter. The court’s jurisdiction over the ‘non-federal’aspects of a matter is sometimes referred to as ‘accrued jurisdiction’.111 The implication here being that jurisdiction over the nonfederal aspects is state/territory jurisdiction that is being picked up, and is exercisable by the court, alongside the court’s exercise of federal jurisdiction. Strictly speaking,however, once there is a federal element to the matter, jurisdiction over the whole matter is federal jurisdiction. This is how federal jurisdiction is defined by the Constitution. It is not true that part of the matter involves federal jurisdiction while the rest of the matter is state or territory jurisdiction simply exercisable by a federal court — it is all federal jurisdiction.112 This notion of accrued jurisdiction in part stems from the notion that the exercise by a federal court of accrued jurisdiction is discretionary.113 The better view, however, is that it is not.114

111 See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475; [1981] HCA 7 at [34] per Barwick CJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 at 283 Gibbs CJ, 294 [22] per Mason, Brennan and Deane JJ and 299 [5] per Murphy J.

[17]–[18] per

112 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at 585–6

[52] per Gleeson CJ, Gaudron and Gummow JJ, 638–9 [218] per Hayne and Callinan JJ; Houghton v Arms

(2006) 225 CLR 553 at 564; [2006] HCA 59 at [26]–[27] ; Rizeq v Western Australia [2017] HCA 23 at [55] per Bell, Gageler, Keane, Nettle and Gordon JJ; see also J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] FedJSchol 15 (first para under heading ‘Accrued and associated jurisdiction’). 113 Á la Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475; [1981] HCA 7 at [34] per Barwick CJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 at 283 [17]–[18] per Gibbs CJ and 295 [23]–[24] per Mason, Brennan and Deane JJ; see J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’[2007] FedJSchol 15 (second para under heading ‘Accrued and associated jurisdiction’). 114 The view that the exercise of accrued jurisdiction is discretionary was questioned in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [149] per Gummow and Hayne JJ; and the High Court has subsequently held that characterising the jurisdiction as ‘discretionary’ was likely to mislead, ‘questions of abuse of process, forum non conveniens and the like aside, jurisdiction conferred upon a court is to be exercised’ (Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at 585–6 Gleeson CJ, Gaudron and Gummow JJ, 638–9 [218] per Hayne and Callinan JJ).

[52] per

2.39 Of the criteria used in the Constitution to define federal jurisdiction, perhaps the most significant in general civil litigation are those in ss 76(i) (‘any matter … arising under the Constitution, or involving its interpretation’)and 76(ii) (‘any matter … arising under any laws made by the [Commonwealth] Parliament’). In 1997, the Commonwealth Parliament introduced a new s 39B(1A) of the Judiciary Act 1903 (Cth) conferring on the Federal Court of Australia original subject matter jurisdiction in: … any matter: … (b)

arising under the Constitution, or involving its interpretation; or

Page 66

Page 22 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

(c)

arising under any laws made by the [Commonwealth] Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

This significantly increased the breadth of the subject matter jurisdiction of the Federal Court of Australia. Indeed, it effectively makes the Federal Court a court of general federal jurisdiction in civil cases.115 A matter will involve federal jurisdiction, and be within the original jurisdiction of the Federal Court, if it ‘aris[es] under’ either the Constitution or a federal law. The words ‘arising under’ are very broadly interpreted. In simple terms, a matter will arise under the Constitution or a federal law if either: 1. it involves a cause of action created by a federal statute (including where it is raised in a counterclaim);116 or 2. a cause of action or defence relies on a right that owes its existence to the Constitution or a federal law.117 The first of these means it is possible to bring a matter within the scope of federal jurisdiction by adding a claim or defence under a federal statute, including by way of a counterclaim, provided that it is not colourable (that is, is raised disingenuously merely to establish federal jurisdiction).118 In commercial cases, for example, it is often possible, and indeed sensible, to include a claim for misleading or deceptive conduct in trade or commerce under the Competition and Consumer Act 2010 (Cth), which will bring the matter within the realm of federal jurisdiction.119 In terms of the second category, a prime example of a cause of action that relies on a right that owes its existence to a federal law is a common law action for debt, where the debt itself is one that arises under a Commonwealth statute such as taxation or bankruptcy/ insolvency statutes.120 An example of a defence that owes its existence to a federal law is the business judgment rule in s 180(2) of the Corporations Act 2001 (Cth),which provides a statutory defence for certain decisions made by company directors. It provides a defence not only to claims under the duty of care and diligence under the federal Corporations Act, but also to claims under equivalent duties of directors at common law and in equity. Importantly, once a matter is within federal jurisdiction

Page 67 it remains within federal jurisdiction, even if the part of the matter that brought it within the scope of federal jurisdiction is minor, weak, abandoned or struck out.121 Finally, and broader still, it may even be that raising the question as to whether federal jurisdiction is engaged brings the matter within federal jurisdiction (given interpreting the scope of federal jurisdiction is itself a matter within federal jurisdiction).

115 See, less definitively, J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] FedJSchol 15 (first para under heading ‘The conferral of general federal (civil)and other jurisdiction: s 39B(1A)’). 116 See, for example, Bell Group Ltd v Westpac (2000) 104 FCR 305 (a claim under s 52 of the Trade Practices Act 1974 (Cth) was included in a cross-claim and this was sufficient to bring the matter within federal jurisdiction). 117 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; [1945] HCA 50 per Latham CJ; Felton v Mulligan (1971) 124 CLR 367 at 387,408and 416; [1971] HCA 39 Philip Morris (1980) 145 CLR 457 at 476; [1980] HCA 32 at [9]

; Moorgate Tobacco v

per Stephen, Mason, Aickin and Wilson JJ.

118 Westpac Banking Corporation v Paterson (1999) 95 FCR 59; [1999] FCA 1609 at [13] , citing Cambridge Gulf Investments Pty Ltd (in liq) v Dandoe Pty Ltd (1999) 32 ASCR 422 at [16] per French J. Indeed, the qualification that the claim cannot be colourable is likely largely otios in light of more recent requirements in most Australian jurisdictions for all claims to have a proper basis. 119 Section 18 of the Australian Consumer Law as set out in Sch 2 to the Competition and Consumer Act 2010 (Cth), formerly s 52 of the Trade Practices Act 1974 (Cth). 120 See, for example, Coffey v Department of Social Security (1999) 86 FCR 434; [1999] FCA 375 at [19]–[23] 121 See Moorgate Tobacco v Philip Morris (1980) 145 CLR 457 at 472,476; [1980] HCA 32 Kerin (1993) 44 FCR 481; [1993] FCA 420 at [4]

.

; Unilan Holdings Pty Ltd v

per Neaves, Ryan and Gummow JJ, citing Burgundy Royale

Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212

; see further J Allsop, ‘An Introduction to

Page 23 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice the Jurisdiction of the Federal Court of Australia’ [2007] FedJSchol 15 (all paras under heading ‘The importance of assertion in founding jurisdiction:once federal, only and ever federal’).

2.40 In this context, it is also vital to consider the legislative powers of the Commonwealth and the states. Each state has plenary legislative power to legislate on any matter (other than the limited matters exclusively vested in the Commonwealth Parliament),122 including passing laws with extraterritorial effect.123 By contrast, the Commonwealth Parliament may only pass laws within its specifically enumerated powers in the Constitution. The majority of these powers are set out in s 51 of the Constitution, which lists 39 specific heads of federal legislative power. Some key powers supporting legislation that gives rise to many civil disputes include legislative powers concerning: bankruptcy and insolvency, corporations, external affairs, intellectual property, taxation and insurance. To manage the concomitance of legislative powers, s 109 of the Constitution provides that any valid law of the Commonwealth Parliament prevails over any state law to the extent of any inconsistency.

122 Constitution s 107. 123 In Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55 at [16],[24] , the High Court, considering ss 2(1) and 2(2) of the Australia Act 1986 (Cth) and the Australia Act 1986 (Imp),unanimously held that states, subject only to the specific limitations in the Constitution, have plenary legislative power including the power to make laws with extraterritorial effect provided there is at least a remote nexus to the relevant state.

2.41 The consequence of this mechanism for resolving all inconsistencies in favour of federal laws is the ever increasing scope of federal legislative power. Gradual centralisation of power is something observed in most federal systems of government.In Australia, this centralising of legislative power has been propelled by a number of Commonwealth powers in the Constitution that have been interpreted very broadly. These include: 1. the external affairs power, which permits the Commonwealth Parliament to legislate on any matter that is the subject of an international treaty entered into by the Commonwealth executive;124 2. the corporations power, which has been interpreted as supporting any law which is directed at or is capable of affecting a foreign, trading or financial corporation;125 and

Page 68   3. the grants power together with the taxation power, which permits the Commonwealth Government to impose taxes and then provide financial grants to the states with conditions attached to those grants.126 The Constitution also permits states to refer powers to the Commonwealth, which is sometimes done for the purposes of national consistency and federal administration of the law.127 As the Commonwealth enters more treaties, passes more legislation within its corporations power, and federal tax revenues continue to dramatically outstrip those of the states, federal power continues to expand. As a result, more cases involve the exercise of federal jurisdiction. While state and territory courts can hear cases involving the exercise of federal jurisdiction, the increasing scope of federal jurisdiction together with a range of other factors including specialist lists and relatively efficient case management practices is seeing more and more cases heard in the federal courts. We are likely to see the workload of the federal courts, and thus their importance in the Australian court system, continue to increase at pace.

Page 24 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 124 Constitution s 51(xxix); this proposition received majority approval in Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21

(Tasmanian Dams case); and unanimous approval in Richardson v Forestry Commission

(Lemonthyme case) (1988) 164 CLR 261; 77 ALR 237; [1988] HCA 10

.

125 Constitution s 51(xx); see New South Wales v Commonwealth (Workchoices case) (2006) 229 CLR 1; [2006] HCA 52 at [178]

, quoting approvingly Gaudron J in Re Pacific Coal (2000) 203 CLR 346; [2000] HCA 34 at [83]

.

126 Constitution ss 96 (grants) and 51(ii) (taxation); see Victoria v Commonwealth (Federal Roads case) (1926) 38 CLR 399; [1926] HCA 48 14

; South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373; [1942] HCA

; Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575; [1957] HCA 54

.

127 Constitution s 51(xxxvii).

Subject matter jurisdiction — legislative cross-vesting

2.42 Because most state and territory civil courts have general jurisdiction and are invested with federal jurisdiction, with the exception of specific cases under legislation and at common law, the issue of subject matter jurisdiction rarely arises.128 More issues, however, arise with the federal courts. The federal courts are only invested with federal jurisdiction and cannot exercise state or territory jurisdiction. To be justiciable by a federal court, a matter must involve the exercise of Australian federal subject matter jurisdiction.

128 See 2.34 above.

2.43 To avoid difficulties associated with differences of subject matter jurisdiction between Australian jurisdictions, in 1987, the Commonwealth, state and territory governments each agreed to pass an Act titled the Jurisdiction of Courts (Cross-vesting)Act 1987129 (Cross-vesting Acts). These Cross-vesting Acts had two aims:130 1. to vest the courts of every Australian jurisdiction with the subject matter jurisdiction of the courts of every other Australian jurisdiction; and 2. to control forum shopping and provide for the moving of cases between the Australian jurisdictions.

Page 69 The first aim was designed to allow any claim to be brought in any Australian jurisdiction. We saw earlier that, by the mechanism of service, courts in every Australian jurisdiction may obtain personal jurisdiction over individuals present,and corporations conducting business, anywhere in Australia. Vesting these courts with the subject matter jurisdiction of courts of every other Australian jurisdiction means these courts will have both personal and subject matter jurisdiction. This avoids the need for the court to consider whether it has the ability to hear a particular claim and allows the court to focus on the important question of where the claim should be heard. This question is the focus of the second aim of the Cross-vesting Acts and will be considered further below.131

129 This legislation was passed by the Commonwealth Parliament and the parliaments of New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia. At the time, the Australian Capital Territory participated in the cross-vesting scheme under the Commonwealth Act as Norfolk Island does currently, but after legislative responsibility for the Supreme Court of the Australian Capital Territory was transferred to the Australian

Page 25 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice Capital Territory Government,that government passed its own Cross-vesting Act, the Jurisdiction of Courts (Crossvesting) Act 1993 (ACT). 130 See recitals to the Cross-vesting Acts. 131 See 2.46–2.52 below.

2.44 While the goal of eliminating technical jurisdictional questions to focus instead on the single question of where the case should be heard is an eminently sensible one, the Cross-vesting Acts managed to encounter something of a constitutional hiccup. In the 1999 case of Re Wakim; Ex parte McNally, the High Court held that, to the extent that the Cross-vesting Acts purported to invest federal courts with non-federal jurisdiction, they were constitutionally invalid.132 Chapter III of the Constitution allows for the creation of additional federal courts and also defines federal subject matter jurisdiction. While Ch III explicitly provides that state courts may be invested with federal jurisdiction,133 it does not provide for the converse. The court held that no legislative power given to the Commonwealth Parliament by the Constitution would allow it to confer non-federal jurisdiction on a federal court.134 Indeed, the court held that the Constitution also impliedly prohibited states from conferring non-federal judicial power on a federal court created under Ch III.135 Unfortunately, the court was unmoved by arguments from pragmatism or cooperative federalism.136

132 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27

.

133 Constitution Ch III s 77(iii). 134 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [213]–[225] per Kirby J.

, see, in particular,at [51]–[53] per McHugh J; cf

135 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 per Callinan J; cf at [197]–[210] per Kirby J.

, see at [54]–[71]per McHugh J and [263]–[265]

136 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [2] McHugh J and also [113], [121], [126] per Gummow and Hayne JJ.

per Gleeson CJ, [34]–[35], [55]–[56] per

2.45 Where does Wakim leave us? First, the remainder of the cross-vesting legislation remains intact. So to the extent the Cross-vesting Acts vest federal jurisdiction in state and territory courts and state and territory jurisdiction in every other state and territory court, they are effective. Further, the mechanism to allow courts in each Australian jurisdiction to transfer cases to each other Australian jurisdiction, which will be discussed in the next part of this chapter, also remains effective.The decision does, however, mean that federal courts cannot simply eschew questions of subject matter jurisdiction. Before a federal court has the power to hear and determine a matter, it must be satisfied that the matter involves the exercise of federal jurisdiction. In practice, given the matter-based approach to federal jurisdiction and its every increasing breadth, this has not proved particularly problematic. As we saw earlier, it is often relatively easy to bring a matter clearly within federal jurisdiction simply by

Page 70 adding a claim or defence under a federal statute.137 Further, if the matter is being heard in a state or territory court it is often (but not always) immaterial whether the matter involves the exercise of federal jurisdiction. Ideally, it would be simpler for the federal courts to be vested with state and territory jurisdiction. Indeed, this might ultimately allow all civil cases to be heard by a single system of federal courts. Absent a more significant undertaking such as the consolidation of the Australian civil courts, however, it does not seem there is any appetite for a constitutional referendum to allow federal courts to be vested with state and territory subject matter jurisdiction.

Page 26 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

137 See 2.39.

Controlling forum shopping and moving cases between Australian jurisdictions

2.46 The discussion in this part focuses on forum shopping between Australian jurisdictions.138 Forum shopping refers to the practice of a party choosing to litigate in a particular court because of some perceived advantage over an opposing party by doing so. As we saw in our earlier discussion of personal jurisdiction, a plaintiff can generally serve a defendant anywhere in Australia with a court process from any Australian jurisdiction. This means the plaintiff is in the position to choose the Australian court in which the action is commenced. Whether a party to litigation is a plaintiff or a defendant is often a matter of who claims first. This is particularly so given most courts are able to issue declarations of non-liability.

138 Issues around choice of court are discussed in further detail in Chapter 5, 5.155 ff and issues around choice of court within the court hierarchy in a particular Australian jurisdiction are considered in Chapter 4, 4.36 ff.

2.47 As mentioned above, choosing a particular court in a particular Australian jurisdiction does not usually affect the substantive law governing the action.139 It may, however, provide some other significant advantage. This advantage may be financial or one of convenience due to the chosen court being in a convenient location. There may also be a forensic advantage in some cases, as matters of procedure and some matters of evidence are governed by the law of the court in which the claim is being heard.140 The case of BHP Billiton Ltd v Schultz,141 discussed at 2.51 below, serves as an illustrative example of a party pursuing a perceived procedural advantage by bringing their action in a court in a particular Australian jurisdiction.

139 See 2.18 above. 140 Matters of procedure are governed by the law of the chosen court (lex fori) while the substantive law applicable to the action is the applicable law according to the choice of law rules of the chosen court (McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 4; [1991] HCA 56 at [17]

; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000]

HCA 36 at [46] ).Similarly, often the rules of evidence applied in a given case will also be those of the court in which the case is heard. Importantly, however, some matters of evidence under the Evidence Act 1995 (Cth) will apply regardless of which court is trying the case. These advantages are also becoming less and less significant given the relative ease of mobility between states and territories and the increasing uniformity of the laws of evidence and procedure across Australian courts. 141 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

.

2.48 While it is of course desirable that parties commence proceedings in a court that will minimise their costs and delay, it is plainly undesirable to accord a significant

Page 71

Page 27 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice advantage to one party simply on the basis that that party struck first and thus got to choose the court in which to litigate. Thus, controlling forum shopping and providing a simple mechanism for courts to transfer proceedings between Australian jurisdictions was the second aim of the Cross-vesting Acts introduced in 1987.

2.49 The Cross-vesting Acts aim to control forum shopping between Australian courts by requiring the Supreme Courts of each state and territory, the Federal Court and Family Court to transfer proceedings to a court in another jurisdiction if it is ‘more appropriate’ that the proceedings be determined by that second court.142 The court may initiate a transfer of its own initiative, on the application of any party or of the Attorney- General of the Commonwealth or of a state or territory.143 The decision to transfer must be made by a Supreme Court, the Federal Court or the Family Court and must concern proceedings before one of those courts. For proceedings in lower courts, s 20 of SEPA allows lower courts to stay proceedings where another more appropriate court in another state or territory has jurisdiction.144 The Cross-vesting Acts then provide that each state or territory Supreme Court may, of its own motion or on the application of a party, remove proceedings from the lower court to the Supreme Court for the purposes of transfer.145 In this way, forum shopping between the Australian jurisdictions can effectively be managed.

142 Cross-vesting Acts s 5. 143 Cross-vesting Acts s 5(7). 144 The criteria for making the decision to stay proceedings in s 20(4) of SEPA largely reflect the criteria considered by the courts in deciding whether to transfer proceedings to another Australian jurisdiction under the Cross-vesting Acts discussed at 2.50 below. 145 Cross-vesting Acts s 8.

2.50 The governing consideration in deciding whether to transfer a case is whether to do so is in the ‘interests of justice’.146 Beyond the discretion inherent in answering that question, this is not a discretionary power of the court, but a statutory requirement to transfer the proceedings.147 Importantly, the test is not the same high bar as the test of forum non conveniens in Australian private international law (which asks whether the Australian courts are ‘clearly inappropriate’);148 instead, this test requires the case be transferred if another court is in the ‘interests of justice’ ‘more appropriate’.149 Street CJ of the Court of Appeal of New South Wales noted:150

Page 72   [The legislation] calls for what I might describe as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

However, the court will consider similar factors to those it considers in applying the forum non conveniens test. In particular, the court will consider the ‘connecting factors’ set out by Lord Goff of Chieveley in Spiliada Maritime Corp v Cansulex Ltd, which:151 … include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.

Page 28 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice Additionally, the Cross-vesting Acts themselves include that consideration is to be given to where the matter would have been heard but for the cross-vesting of subject matter jurisdiction by the Cross-vesting Acts.152 In the eminently sensible decision of the Supreme Court of Victoria in Toll (FHL) Ltd v Finemore, Warren J, as her Honour then was, emphasised the importance of minimising cost and ensuring the trial is conducted as expeditiously as possible including having regard to the availability of specialist court lists and the current workload of the relevant courts.153 The courts have also observed that the most appropriate forum will usually be that of the place where the tort (or relevant events that are the subject of the action) occurred (lex loci delicti), particularly if that is also where the parties reside.154 It is possible to get caught up analysing factors and arguments each way and often there are also various tactics at play, but as a general observation, the most appropriate forum is almost always that dictated by common sense.

146 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14]

per Gleeson CJ, McHugh and Heydon JJ.

147 The Cross-vesting Acts in s 5 use the mandatory ‘shall’; see BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] Callinan J.

per Gleeson CJ, McHugh and Heydon JJ, [62]–[63] per Gummow J, [132] per Kirby J and [222]per

148 See Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

; Voth v Manildra

Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 . The law around asking an Australian court to stay a matter where it would otherwise have jurisdiction on the grounds of forum non conveniens is discussed in Chapter 5, 5.155 ff. 149 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14],[25] per Gleeson CJ, McHugh and Heydon JJ, [69]–[77] per Gummow J (with whom Hayne J agreed) and [161]–[166] per Kirby J. In this way the test for transfer under the Cross-vesting Acts is much closer to the test for forum non conveniens in English law as espoused by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

at 476–8

150 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713–14 v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [13]

.

per Street CJ, quoted approvingly in BHP Billiton Ltd

per Gleeson CJ, McHugh and Heydon JJ.

151 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

at 478

Schultz (2004) 221 CLR 400; [2004] HCA 61 at [163]

, quoted approvingly in BHP Billiton Ltd v

per Kirby J. See also Bankinvest AG v Seabrook (1988) 14

NSWLR 711 at 730 per Rogers AJA; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [161] per Kirby J, [18]–[21], [27] per Gleeson CJ, McHugh and Heydon JJ. 152 Cross-vesting Acts s 5 and the sub-subparas for each of the subsections. 153 Toll (FHL) Ltd v Finemore [2001] VSC 467 at [22]–[25]

.

154 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361; [2000] NSWCA 353 per Spigelman CJ (Mason P and Priestley JA agreeing), quoted approvingly in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at[165],[170]

per Kirby J; see also at [99] per Gummow J (with whom Hayne J agreed), [259] per Callinan J.

2.51 The leading High Court case of Schultz155 serves as a useful illustration of a perceived procedural advantage actuating a party in its choice of forum. It also serves as a useful example of the court’s approach to managing forum shopping between Australian jurisdictions under the Cross-vesting Acts. In that case, the plaintiff, Mr Schultz, a resident of South Australia, claimed he suffered from asbestosis and asbestos related pleural disease as a result of exposure to asbestos while working for the defendant, BHP Billiton Ltd, in South Australia. The plaintiff brought a claim for negligence, breach of contract and breach of statutory duty against the defendant in the Dust Diseases Tribunal of New South Wales. This is a specialist tribunal established as a court of record in the state of New South Wales for the purposes of hearing and determining cases associated with dust-related health

Page 73

Page 29 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice conditions. One procedural advantage available to the plaintiff was the tribunal’s rules about damages, which permit a plaintiff to retain the right to seek further damages in the future if certain health conditions change in the future.156 Other perceived procedural advantages likely included the tribunal’s expertise in the area and the comparative likelihood of an expedited hearing, of reduced costs and of evidentiary advantages offered by the tribunal.157 The defendant made an application to the Supreme Court of New South Wales under s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) for the proceedings to be removed from the Dust Diseases Tribunal and transferred to the Supreme Court of South Australia under s 5(2)(b)(ii). The initial application was refused and the refusal was appealed to the High Court of Australia.While a number of the judges ultimately thought there had been insufficient argument on the issue of which court was favoured by the interests of justice,158 the majority thought that South Australia was the more appropriate forum for the case to be heard.159 Therefore, the court granted the appeal and the case was transferred to the Supreme Court of South Australia. The majority highlighted that: 1. the alleged tort occurred in South Australia (and therefore that the law to be applied was South Australian law); 2. the plaintiff was resident in South Australia; and 3. all of the lay witnesses and most of the medical witnesses were resident in South Australia. Unlike the forum non conveniens test in Australian private international law, there is no preference in favour of the forum chosen by the plaintiff.160 On the issue of procedural advantage, Gleeson CJ and McHugh and Heydon JJ noted:161 The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff ’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff’s lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not

Page 74 disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff’s early death.

It is clear from the above extract that procedural advantages to one party may, as a matter of practical reality, be an important consideration in the interests of justice. The court very strongly suggests that, if the plaintiff did not have long to live, and therefore would only likely be able to see the outcome of the case if it were heard by the tribunal, this would have weighed very strongly in favour of denying the request for a transfer.

155 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 156 BHP Billiton Ltd v Schultz [2002] NSWSC 981 at [8]

.

per Sully J.

157 See BHP Billiton Ltd v Schultz [2002] NSWSC 981 at [24]–[34]

per Sully J.

158 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [31]

per Gleeson CJ, McHugh and Heydon JJ.

159 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [64]

per Gummow, Kirby, Hayne and Callinan JJ.

160 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [24]

per Gleeson CJ, McHugh and Heydon JJ.

Page 30 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 161 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15]

per Gleeson CJ, McHugh and Heydon JJ.

2.52 A second thing that is clear from the above extract is that interests of justice includes considering issues ‘wider than those of either party’. In all case management decisions including transfer of proceedings, it is essential to keep one eye on the overriding objective of ensuring justice is achieved in proportionate time and at proportionate cost. The court must have regard to the efficient and effective operation of the courts as a whole and not merely the interests of the parties to the case at hand. Overall, the mechanism provided by the Cross-vesting Acts for the control of domestic forum shopping and for transferring cases between Australian jurisdictions is well suited to its purpose. However, if there is one key criticism to be made of the jurisprudence in the area, it is that sufficient attention is rarely given to factors, driven by the overriding objective, that sit outside the interests of the parties. Courts seldom, for example, give explicit consideration to matters of court workloads and resources or to the issue of legal costs. These factors are not to be found in the oft-cited decision of Lord Goff in Spiliada Maritime Corp v Cansulex Ltd.162 Their due consideration is nevertheless mandated by the overriding objective and is critical to a true assessment of the interests of justice in all its three dimensions.

162 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

.

The Australian civil courts in context

2.53 To round out our discussion, the final part of this chapter takes a very high-level look at the Australian civil justice system and its broader connections in society. In particular, we will consider: 1. the links between the Australian civil justice system and England, the country from which the Australian system of civil justice originated; 2. the relationship between the Australian civil justice system and Indigenous Australians; and 3. finally, the relationship between the Australian system and other international systems of civil justice.

Page 75

Relationship with the United Kingdom

2.54 Since the initial reception of English law,163 with the landing of the First Fleet of ships from the British Empire on 26 January 1788,164 Australia has been on a journey to gradually forge its independence as a self-governing state. The biggest step on the journey was of course the passage of the Constitution, federating Australia’s formerly independent colonies to form a central government for the Commonwealth of Australia, from 1 January 1901. The Constitution, however, did not establish Australia as a truly self-governing state. Under the Constitution, the Australian states and territories, and the Commonwealth itself,remained colonies of the British Empire. The Imperial Parliament of Westminster maintained its power to pass laws overriding any laws of the Commonwealth or of the states and territories.165 Additionally, the Commonwealth and the states and territories had no power to legislate outside their respective territories.166

Page 31 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 163 This is the date of the initial reception of English law; in fact, English law was received at different times in different colonies. The date of reception was also subsequently adjusted by statute of the Imperial Parliament in Westminster.The Australian Courts Act 1828 (Imp) provided that all the laws in England in force at the date of the Act (25 July 1828), so far as they were applicable, applied in New South Wales (which, at the time, included Queensland and Victoria) and Van Diemen’s Land (now Tasmania). Different dates were adopted for South Australia (28 December 1836 — Acts Interpretation Act 1915 (SA) s 48 (now repealed))and Western Australia (1 June 1829 — Interpretation Act 1918 (WA) s 43 (now repealed)). In 1992, the High Court of Australia, in what is probably the most famous case in Australian legal history, Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 , held that the basis of the reception of English law in Australia under the international law of settlement of terra nullius (or land belonging to no one) was unsound, due to the long pre-dating presence of many Indigenous communities inhabiting the land of Australia (at [33]–[42] per Brennan J (with whom Mason CJ and McHugh J agreed)). The basis for the decision was not overturning the reception of English law in Australia, but rather the recognition by the common law of native title to property as an institution outside the common law (at [64]–[65] per Brennan J (with whom Mason CJ and McHugh J agreed). 164 A date controversially celebrated as ‘Australia Day’, a national public holiday. 165 While this was an underlying power since the reception of English law, it was also codified in the Colonial Laws Validity Act 1865 (Imp) (CLVA). 166 MacLeod v Attorney-General (NSW) [1891] AC 455

(Privy Council).

2.55 Legislative autonomy at a Commonwealth level was effectively achieved by the Statute of Westminster 1931 (Imp) and its adoption by the Statute of Westminster Adoption Act 1942 (Cth),167 which disapplied the Colonial Laws Validity Act to laws of the Commonwealth,168 gave the Commonwealth extraterritorial legislative power169 and removed the ability of the United Kingdom to legislate for the Commonwealth except at the Commonwealth’s request.170 Legislative independence at a state and territory level came many years later as a result of the Australia Acts 1986 (Imp)

Page 76 and (Cth).171 These Acts removed the ability of the Imperial Parliament to legislate for the states,172 confirmed the plenary legislative power of the states including their power to legislate with extraterritorial effect,173 disapplied the Colonial Laws Validity Act to any of the states and territories174 and removed the ability for the monarch to disallow state/territory legislation.175 In terms of judicial independence, the High Court held in the early 1960s that the view that it was bound by decisions of the House of Lords in London was ‘misconceived and wrong’.176 As mentioned above,177 while the Constitution permits the High Court to refer a matter to the Privy Council,178 in part by virtue of two Acts of the Commonwealth Parliament passed in 1968 and 1975 respectively,179 and in part as a matter of principle established in High Court jurisprudence,180 this power is unlikely to be exercised again and, as a consequence, the High Court is not bound by decisions of the Privy Council.181 At a state level, it was only with the passing of the Australia Acts 1986 (Imp) and (Cth) that the ability to appeal state and territory cases to the Privy Council was abolished, perfecting the judicial supremacy of the High Court.182 Until this time, the High Court of Australia and the Judicial Committee of the Privy Council sitting in London represented parallel possible routes of appeal.

167 The adoption was backdated to 3 September 1939 to cover the beginning of World War II, to ensure certain Australian wartime legislation was not invalidated on the basis that it was inconsistent with any British legislation. 168 Statute of Westminster 1931 (Imp) s 2. 169 Statute of Westminster 1931 (Imp) s 3. 170 Statute of Westminster 1931 (Imp) s 4. 171 These Australia Acts 1986 (Imp) and (Cth) became effective on 3 March 1986. 172 Australia Acts 1986 (Imp) and (Cth) s 1. 173 Australia Acts 1986 (Imp) and (Cth) s 2.

Page 32 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice 174 Australia Acts 1986 (Imp) and (Cth) s 3. 175 Australia Acts 1986 (Imp) and (Cth) s 8. 176 Parker v R (1963) 111 CLR 610 at 632–3 ; [1963] HCA 14

.

177 See 2.9 above. 178 Constitution s 74. 179 Privy Council (Limitation of Appeals) Act 1968 (Cth) s 3; Privy Council (Appeals from the High Court) Act 1975 (Cth) s 3. 180 Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461; [1985] HCA 27

.

181 See note 29 above. 182 Australia Acts 1986 (Imp) and (Cth) s 11.

2.56 Today, Australia remains a constitutional monarchy under the reign of ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’.183 In practice, however, the formal power of the monarch in the governance of Australia is very limited to the point where it is practically nonexistent. In the constitutional structure, the monarch is represented at the federal level by the Governor-General of Australia,184 a position notionally appointed by the monarch, but, in practice, that appointment is made on the advice of the Prime Minister. The Governor-General has certain powers within the Australian constitutional system, including the power to dismiss the Prime Minister,185 as occurred

Page 77 in 1975 when Governor-General Sir John Kerr dismissed then Prime Minister Gough Whitlam. However, the office of the Governor-General is an independent Australian government office established by the Constitution,and its powers need not be exercised on the advice of, or according to the wishes of, the monarch.186 The monarch is also represented by a Governor in each state. A further vestigial tie to Great Britain is s 74 of the Constitution, which gives the High Court the ability to grant leave to appeal a matter to the Privy Council —a power never likely to be exercised.187 Finally, s 59 includes a right of the monarch to disallow any law of the Commonwealth Parliament within one year from the Governor-General’s assent. One does suspect, however, that a new constitutional referendum would quickly follow any attempt to exercise this power. It is plausible to say, therefore, that Australia has effectively achieved legal independence on a practical level (even if not a symbolic one).

183 A Proclamation dated 19 October 1973 in the Australian Government Gazette (1973) No 152 at 5, pursuant to the Royal Style and Titles Act 1973 (Cth) s 2(1). A constitutional referendum was held in 1999 which, if successful, would have made Australia a republic, but this was unsuccessful. While the Constitution required the assent of a majority of votes across the country together with a majority of votes in a majority of states (not including the territories)(Constitution s 128), the final vote was 54.87 per cent ‘against’ to 45.13 per cent ‘for’, and the vote ‘for’ did not succeed in any state. 184 Constitution s 61. 185 Constitution s 64. 186 This only emerged as the clear position through the Imperial Conferences in 1926 and 1930. Indeed, this was the case with Governor-General Sir John Kerr’s dismissal of Prime Minister Gough Whitlam. Shortly after the dismissal of the Prime Minister, and in response to a letter asking the Queen to reappoint Gough Whitlam as Prime Minister of Australia, the Queen’s Private Secretary, Sir Martin Charteris, wrote: As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is

Page 33 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act. 187 See 2.9 above.

2.57 What effect, then, has the historical relationship with the United Kingdom (and, in particular, England) had on the rules of civil procedure in the Australian courts? And, given the absence of any remaining formal role for the United Kingdom in the governance of Australia, what effect is English civil procedure continuing to have in Australia? With the reception of English law came the reception of the English rules of civil procedure in the courts of the Australian colonies. It is only with the gradual establishment of Australia’s independence from the United Kingdom over the last century or so that the rules of civil procedure have begun to differ. These differences, however, have not been particularly wide-ranging. Broadly speaking, the rules of civil procedure in Australian courts remain remarkably similar to the English rules. Indeed, as the English rules have undergone reform, so too have the rules across the Australian courts. As we saw in the discussion in Chapter 1, the relatively recent Woolf and Jackson reforms have been highly influential in Australia with Australian courts drawing heavily on them in the evolution of their own civil procedure. We have also begun to see changes flowing in the other direction. The Jackson Final Report for instance recommended that procedures for concurrent expert evidence (colloquially known as ‘hot tubbing’), procedures which originated in New South Wales, be piloted in England and Wales.188 Given the persistent similarity between our civil justice systems, and given the significantly reduced imperative in England for European

Page 78 uniformity in most areas of law (including civil procedure) post-Brexit, the strongly influential interrelationship between English and Australian civil procedure is likely to continue for the foreseeable future.

188 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report, The Stationery Office, United Kingdom, December 2009, p 385 [4.3].

Relationship with Indigenous Australians

2.58 On the whole, Indigenous Australian customs and traditions have had very little influence on the Australian civil justice system. The few steps that have been made in this regard in the civil context have predominantly been in substantive civil law, with the rejection of the fallacy of the doctrine of terra nullius,189 giving rise to some limited recognition of Indigenous native title land rights.190 Indigenous customs have had a marginally greater influence on criminal procedure, in part driven by the enormous overrepresentation of Indigenous Australians in custody.191 New South Wales, Queensland, Victoria and Western Australia have established specialist Indigenous courts as part of their Magistrates/Local Courts.192 Procedurally, these Indigenous courts operate in a less formal manner that is designed to be more aligned with Indigenous culture. The process usually involves a discussion with community elders or other respected members of the Indigenous communities together with a magistrate. Hearings usually take place in a less intimidating setting, such as around a table, rather than with the magistrate at the bench and the defendant in the dock. The discussion usually focuses on changes the defendant wishes to make in their lives and the defendant’s plans for the future. The sentence for the offence may take into account the product of this discussion. The process focuses on community involvement and support to improve the welfare of defendants and reduce recidivism.193 More broadly, the process aims to improve Indigenous community engagement with the criminal justice system. In terms of civil procedure, by contrast, the effect is largely confined to reforms directed at improving access to justice generally.

Page 34 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice

189 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 at [33]–[42] and McHugh J agreed). 190 See Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 case) (1996) 187 CLR 1; [1996] HCA 40

per Brennan J (with whom Mason CJ

; Wik Peoples v Queensland (Pastoral Leases

; Native Title Act 1993(Cth) and specifc Acts in the states/territories.

191 At 30 June 2016, 27 per cent of the Australian prison population identified as Aboriginal or Torres Strait Islander, while Aboriginal and Torres Strait Islander people made up approximately 2 per cent of the total adult Australian population:Australian Bureau of Statistics, Prisoners in Australia, 2016, cat no 4517.0, 8 December 2016. 192 In New South Wales, this is known as ‘circle sentencing’; in Victoria, the specialist court is known as the Koori Court; in Queensland, the Murri Court; and in Western Australia, the Aboriginal Community Court. 193 These aims are not dissimilar to those of diversion programs forming part of many criminal justice systems including in Australia, the UK and the US nor those of specialist criminal courts such as the Drug Courts in New South Wales, Queensland,South Australia, Victoria and Western Australia.

2.59 Focusing attention on the criminal justice system as the means of managing the overrepresentation of Indigenous Australians in custody is somewhat of an exercise in firefighting. The Australian civil justice system has an important role to play in this area. As observed in a report of the Indigenous Legal Needs Project:194

Page 79   We note … the clear connections between unmet civil and family law need and offending and criminalisation of Indigenous people, as identified throughout this report. It is suggested that meeting need in civil and family law areas is likely to contribute to a reduction in offending, as well as being an important goal in its own right. Overall, the amount of assistance available to Indigenous people for civil and family law problems is inadequate.

Numerous reports have similarly highlighted many significant disadvantages facing Indigenous Australians in terms of access to civil justice.195 These multitudinous barriers include significant financial, language, literacy, educational and geographic barriers. Further difficulties face Indigenous women, who have been identified as the social group least well served by the Australian legal system.196 Most calls for reform to address the barriers facing Indigenous Australians in their engagement with the civil justice system focus on: 1. redressing the socio-economic disadvantage faced by many Indigenous people; 2. better resourcing the provision of legal services to disadvantaged persons; and 3. adapting the rules of civil tribunals and small claims courts to improve access to justice more broadly. While there may be some scope for adapting the rules of civil procedure to better suit the needs of Indigenous Australians, this has unfortunately not historically been as key an area of concern, as it has been in the criminal sphere. It is essential to bear the many challenges faced by Indigenous Australians in mind, especially in terms of access to justice, when considering areas of possible civil procedure reform in Australia.

194 M Schwartz, F Allison and C Cunneen, The Civil and Family Law Needs of Indigenous People in Victoria, Report of the Australian Indigenous Legal Needs Project in association with Larissa Behrendt and the Jumbunna Indigenous House of Learning, 2013, p 189. See also M Schwartz and C Cuneen, ‘From Crisis to

Page 35 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice Crime: The Escalation of Civil and Family Law Issues to Criminal Matters in Aboriginal Communities in NSW’ (2009) 7(15) Indigenous Law Bulletin 18. 195 See, for example, Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and Access to Justice, Parliament of Australia, Canberra, June 2004, p 108; Victorian Government Department of Justice and Regulation, Access to Justice Review, State Government of Victoria, August 2016, [3.3.4]; and Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72,5 September 2014, Vol 2, Ch 22. 196 S Ludlum and C Lawry, ‘Closing the Justice Gap for Indigenous Australians’ (2010) 7(17) Indigenous Law Bulletin 12, citing Australian Law Reform Commission, Equality Before the Law: Justice for Women, Report 69, 1994, [5.24]–[5.37].

Relationship with international legal systems

2.60 While Australia’s history in the context of global geo-politics is a relatively brief one, Australia has a high level of engagement on the international stage and in international trade, including with Western countries because of a partly shared legal heritage, and with Asia given its close proximity. The richness and complexity of Australia’s relationship with international law and international legal systems is vast. For the purposes of this discussion, we will confine ourselves to some high-level observations on Australia’s relationship with international legal systems in the context of civil procedure.

2.61 Our key observation is the somewhat optimistic one that Australia can lead the way in terms of its focus on the overriding objective in the civil justice system. There

Page 80 are two principal reasons to think this is the case. The first is the encouraging extent to which we have already seen the overriding objective take hold across Australia. Alongside the adoption of many of the recommendations of the Woolf and Jackson inquiries in the United Kingdom, we have seen every Australian jurisdiction adopt some form of the overriding objective. Moreover, the courts have begun to properly embrace the overriding objective. We saw the High Court confirm the supremacy of the overriding objective in Australian civil justice in its eminently sensible decision in Aon Risk Services.197 There is now widespread appreciation across Australia of the importance of reducing costs and delay and improving access to justice — of shifting from a merits-based conception of justice to a three-dimensional theory of justice —a goal underscored by the Productivity Commission in its recent Inquiry Report on Access to Justice Arrangements.198

197 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27

.

198 See 1.35.

2.62 The second reason is the willingness and ability of Australian jurisdictions to adopt new procedures including those that have demonstrated benefits in other civil justice systems. For example, Australia has far more readily embraced numerous aspects of American civil procedure than has the United Kingdom, such as the judicial docket system operating in the Federal Court of Australia,199 litigation funding200 and class actions.201 Australia has also pioneered a number of its own innovations, the most notable of which is probably concurrent expert evidence.202 Lord Justice Jackson has suggested that much innovation in Australian civil procedure is driven by competition

Page 36 of 36 Chapter 2 The Australian Court System and its Effect on Civil Justice between Australian courts for top commercial work, particularly competition between the Supreme Court of Victoria, the Supreme Court of New South Wales and the Federal Court of Australia.203 However, gaining material advantage from commercial work is only one of several incentives that the courts of the states and territories have to improve their procedures. Of equal, if not greater, importance is increasing appreciation by the various judiciaries of the need to provide the public with an effective dispute resolution service which in turn contributes to social cohesion, to confidence in carrying on business and in investment, and to confidence in civil justice.204 In this regard, the diversity of state and federal procedure is of some advantage as different systems can experiment with varying improvements and learn from each other’s experience. Additionally, the smaller size of each of the Australian courts (in terms of caseload and of number of judges and legal practitioners) likely also allows them to be more agile than their English counterparts when it comes to adopting new rules of civil procedure. This capability for agile innovation and a strong focus on the overriding objective puts the Australian jurisdictions in prime position to spearhead civil procedure reforms that best deliver just outcomes in proportionate time and at proportionate cost.

Page 81 Courts and Tribunals of the Australian Civil Justice System

199 See 2.12 above. 200 Litigation funding is discussed further in Chapter 13, 13.58 ff. 201 Class actions and other forms of collective redress are discussed further in Chapter 13, 13.32 ff. 202 Concurrent expert evidence is discussed further in Chapter 21, 21.79 ff. 203 Lord Justice Jackson, Concurrent Expert Evidence — A Gift from Australia, lecture at the London Conference of the Commercial Bar Association of Victoria, London, United Kingdom, 29 June 2016 . 204 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, Vol 1, pp 138–9.

End of Document

Chapter 3 The Right to a Fair Trial Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 3 — The Right to a Fair Trial

Chapter 3 The Right to a Fair Trial Page 83 [Current to May 2018]

Introduction

3.1 Australian law protects the right to a fair trial by a variety of means, including statute, rules of court and common law principles. ‘The right to fair trial’, Spigelman CJ stated extra-judicially, ‘… is perhaps the best established example of a presumption that is appropriately characterised as part of a common law bill of rights’.1 Whether it is the right to an impartial tribunal, the right to be heard or, indeed, the elementary right of access to court, these and other similar rights have for centuries found expression in English case law, which was followed and then developed in Australia, and today also find expression in the rules of procedure. Some principles arising from the right to a fair trial — such as the requirement that there be an independent and impartial tribunal — are also given some protection by the Australian Constitution. The present chapter sets out the components of the right to a fair trial, and how they are protected in Australia.

1

The Honourable JJ Spigelman AC, Chief Justice of New South Wales, ‘The Common Law Bill of Rights’, First Lecture in the 2008 McPherson Lectures: Statutory Interpretation and Human Rights, University of Queensland, Brisbane, 10 March 2008, p 25, cited with approval by the Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws: Final Report, ALRC Report 129, December 2015, [8.43].

The right to a fair trial and the Australian Constitution

3.2 The right to a fair civil trial in Australia, and its specific components — such as a right to an independent tribunal, and a right to be heard — are drawn from the English common law. In England, these rules and principles are regarded as having constitutional status.2 They are also protected by the European Convention on Human Rights.3 In Australia, the very same rights and principles are generally referred to as common law rights. The extent to which they are constitutionally protected is limited,

Page 84 particularly in state courts, and must also be regarded as unsettled. This section will consider how and to what extent the Australian Constitution protects elements of a fair civil trial.

2

See generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 3.

Page 2 of 64 Chapter 3 The Right to a Fair Trial 3

Article 6; Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 3 indicates where common law rights have been reinforced or bolstered by the Convention and the jurisprudence of the European Court of Human Rights.

Express provisions in the Australian Constitution concerning fair trial principles

3.3 Chapter III of the Australian Constitution makes provision for the federal judicature. It vests judicial power in the High Court, in other federal courts created by the Commonwealth Parliament, and in other courts (namely, state courts) on which parliament confers federal jurisdiction. Most of the provisions of Ch III concern the original and appellate jurisdiction of the High Court, and the Commonwealth Parliament’s powers to make laws concerning federal jurisdiction.

3.4 Only two elements of a fair trial are given express protection in the Constitution. First, s 80 provides that criminal trials on indictment of federal offences shall be by jury, and identifies the venue for such trials. Secondly, s 72 provides that judges of the High Court and other federal courts may be removed by the Governor- General only on the recommendation of both houses of parliament, and only for ‘proved misbehaviour or incapacity’. It provides also that whilst parliament may prescribe judicial remuneration, it must not decrease during a judge’s term. Thus, the Constitution protects the tenure and remuneration of federal judges. These are important aspects of judicial independence from the other arms of government. No judge can be threatened with removal or with adverse financial consequences for reaching a decision which is against the interests of the executive arm of government.

3.5 Nevertheless, these express protections are extremely limited. First, most of the aspects of a fair trial, including important aspects such as the absence of actual or apprehended bias on the part of the judge, are absent. Secondly, the tenure and remuneration provisions are expressed to apply only to federal courts, including the High Court.

Implications drawn from the text and structure of the Constitution — an overview

3.6 Over time, the High Court has expanded the constitutional protection given to various aspects of the judicial process, including matters which are aspects of the right to a fair trial. This has happened because the High Court has found that certain principles are implied in the text and structure of the Constitution, specifically Ch III.4

4

3.7

R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 at 269–70 CJ, McTiernan, Fullagar and Kitto JJ.

per Dixon

Page 3 of 64 Chapter 3 The Right to a Fair Trial An early step was the recognition that the Constitution required the separation of judicial power from legislative and executive functions.5 The leading case on

Page 85 the separation of powers is Boilermakers, in which the High Court identified two principles which continue to underpin modern constitutional jurisprudence. First, the Commonwealth Parliament could not vest federal judicial power on a court unless it was either a court created in accordance with Ch III, or a state court.6 The second was that Ch III courts (that is, courts ‘established by or under’ Ch III, namely the High Court or a federal court) could not be used for purposes which were neither the exercise of judicial power nor ‘auxiliary or incidental thereto’.7

5

New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 at 62–5 108 per Rich J.

6

R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; this principle had been established earlier, see in particular New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 at 62

7

per Griffith CJ, 89–90 per Isaacs J,

per Griffith CJ, 89–90 per Isaacs J, 108–9 per Rich J.

R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 at 271–2 CJ, McTiernan, Fullagar and Kitto JJ.

per Dixon

3.8 There are differing views amongst constitutional scholars as to whether fair trial principles are protected only because of institutional concerns about the separation of powers and the proper role of the court, or whether the High Court has also been concerned to protect the rights of individuals.8 The two concerns are not mutually exclusive, and different judgments may be seen to place different emphasis. Further, the jurisprudence on the nature of judicial power, and the proper role of the court, has been grounded on principles established in English common law, and subsequently adopted in Australian common law, rather than from express provisions of the Australian Constitution. As Jacobs J explained in R v Quinn; Ex parte Consolidated Food Corporation :9 The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically,are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example.

8

See, for example, G Appleby, A Reilly and L Grenfell, Australian Public Law, 2nd ed, Oxford University Press, Melbourne, 2014, pp 281–4; G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory, 6th ed, Federation Press, Sydney, 2014, [12.20]–[12.21]; J Stellios, The Federal Judicature: Chapter III of the Constitution Commentary and Cases, LexisNexis Butterworths, Sydney, 2010, [6.4]–[6.5].

9

(1977) 138 CLR 1 at 11

per Barwick CJ (Gibbs, Stephen and Mason JJ agreeing), cited with approval by Gummow

J in Nicholas v R (1998) 193 CLR 173 at 231; [1998] HCA 9

3.9

.

Page 4 of 64 Chapter 3 The Right to a Fair Trial What is important, though, in considering Ch III jurisprudence, is that the constitutional basis for protecting fair trial principles in Australia derives from the text and structure of Ch III, and the nature of judicial power. The emphasis of the High Court is often, therefore, quite different from what it would be in overseas jurisdictions, where the same fair trial principles would be grounded in the rights of the individual. To take a concrete example: as will be discussed below,10 the High Court has recognised that it is a characteristic feature of Australian courts that they

Page 86 be independent and impartial. But in the Australian setting, this is more commonly expressed as an institutional feature of the court, rather than as a right of an individual to have an independent decision-maker determine their case. By way of contrast, modern English case law tends to approach equivalent issues by considering whether particular features of the court’s role and processes unduly hinder the individual’s right to a fair trial pursuant to Art 6 of the European Convention on Human Rights; American jurisprudence will consider the individual’s rights to due process under the 14th amendment to the United States Constitution.

10 See 3.18 below.

3.10 The foregoing discussion of constitutional implications concerning the nature of judicial power, and the consequences for judicial process, is limited to federal courts. In Kable v Director of Public Prosecutions (NSW) ,11 the High Court recognised that the Australian Constitution also places limits on the ability of state legislatures to vest power in, or affect the processes of, state courts. In short, because state courts are part of the federal judicial system contemplated by Ch III of the Australian Constitution — and receive federal judicial power — their functions and processes cannot be inconsistent with their character as such.12 However, state courts are not subject to the full rigours of Ch III, nor the full operation of the Boilermakers doctrine.13 As French CJ and Kiefel J explained in Wainohu v New South Wales :14 … a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity. … The term ‘institutional integrity’, applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court’s independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. … it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution.

It is clear that state legislatures cannot usurp the role of state courts by requiring that they reach a particular decision in a case at bar.15 Nor can state courts be required to hold ex parte proceedings where there is no provision for the absent party to be heard after the event.16 The High Court has also held that the supervision of inferior state courts, and of the state executive, is a characteristic judicial function of state Supreme

Page 87 Courts.17 Thus, a law which abolished rights of appeal from inferior state courts to the state Supreme Court, or precluded judicial review of state executive actions, would undermine impermissibly the institutional integrity of the state Supreme Court.

11 (1996) 189 CLR 51

.

12 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [63] Gummow, Hayne and Crennan JJ.

per

Page 5 of 64 Chapter 3 The Right to a Fair Trial 13 For example, Gleeson CJ in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [36]–[43] explains that whilst all courts which are repositories of federal judicial power must be independent and impartial, there are various ways in which this outcome might be achieved; it is not necessary that they comply with Ch III. 14

(2011) 243 CLR 181; [2011] HCA 24 at [44]

.

15 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

was such a case.

16 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009]HCA 49 17 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [98] Hayne, Crennan, Kiefel and Bell JJ.

.

per French CJ, Gummow,

3.11 In simplified terms, the distinction between a federal court and a state court is as follows. A federal court cannot be vested with any power, or be required to carry out any function, save for the exercise of federal judicial power. Conversely,a state court may be required to carry out non-judicial functions, or to conduct its processes in a manner which does not accord with usual judicial process. But, a state court may not be required to act in a manner which ‘substantially impairs its institutional integrity’. In both the federal and state spheres, the same ‘essential characteristics’ define a court; the distinction is the extent to which those essential characteristics may be permissibly encroached upon by legislation regulating the processes and functions of the court. The following section will identify the aspects of the judicial process which are protected in Australian law, as being essential to the conduct of a fair trial.

Aspects of the judicial process which are protected by implications drawn from the Constitution

3.12 The attempts of the High Court to define judicial power for the purpose of applying the principles set out in Boilermakers have led to certain aspects of court proceedings being granted constitutional protection.Nevertheless, the definition of judicial power has never been susceptible to ‘exclusive and exhaustive definition’.18 Further, aspects of a fair trial have more commonly been found to be protected in criminal proceedings; there is little jurisprudence dealing specifically with civil proceedings.

18 R v Davison (1954) 90 CLR 353 at 366

per Dixon CJ and McTiernan J.

3.13 As early as 1918, the High Court considered the nature of judicial power; in Waterside Workers’ Federation of Australia v J W Alexander Ltd ,19 Isaacs and Rich JJ distinguished arbitration from court determination by explaining that ‘judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted’.20 In this vein, it is settled that one characteristic feature of the judicial role is the determination of existing rights and liabilities; the creation of new rules is characteristically legislative.21

Page 6 of 64 Chapter 3 The Right to a Fair Trial

19 (1918) 25 CLR 434

.

20 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463 21 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442–3

. per Griffith CJ, 451–

3 per Barton J, 463–5 per Isaacs and Rich JJ; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 607–8 per Deane J; see also the frequently cited definition of judicial power given in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361 at 374

per Kitto J.

3.14 In Australia, federal judicial power is limited to the determination of matters. Accordingly, federal courts will not give opinions on legal questions ‘unless there is

Page 88 some immediate right, duty or liability to be established by the determination of the Court’.22

22 Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; see also Australian Commonwealth Shipping Board v The Federated Seamen’s Union of Australasia (1925) 36 CLR 442 at 451 per Isaacs J; Bass v Permanent Trustee (1999) 198 CLR 334; [1999] HCA 9 at [47]–[48] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

per

3.15 Some aspects of the judicial process are also protected. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia ,23 French CJ and Gageler J explained that the concept of judicial power in Ch III of the Constitution contained three aspects — one of which was the process by which court proceedings were carried out. Their Honours stated:24 The judicial power of the Commonwealth has defied precise definition. One dimension concerns the nature of the function conferred: involving the determination of a question of legal right or legal obligation by the application of law as ascertained to facts as found ‘so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons’. Another dimension concerns the process by which the function is exercised: involving an open and public inquiry (unless the subject matter necessitates an exception), and observance of the rules of procedural fairness. Yet another dimension concerns the overriding necessity for the function always to be compatible with the essential character of a court as an institution that is, and is seen to be, both impartial between the parties and independent of the parties and of other branches of government in the exercise of the decisionmaking functions conferred on it. Underlying each of those dimensions of the judicial power of the Commonwealth is its fundamental character as a sovereign or governmental power exercisable, on application, independently of the consent of those whose legal rights or legal obligations are determined by its exercise. That fundamental character of the judicial power of the Commonwealth is implicit in the frequently cited description of judicial power as ‘the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects’, the exercise of which ‘does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action’. Judicial power ‘is conferred and exercised by law and coercively’, ‘its decisions are made against the will of at least one side, and are enforced upon that side in invitum’,and it ‘is not invoked by mutual agreement, but exists to

Page 7 of 64 Chapter 3 The Right to a Fair Trial be resorted to by any party considering himself aggrieved’.

That the concept of judicial power imports certain requirements as to the process which a court must follow is not novel. In Polyukhovich v Commonwealth, Deane J stated that Ch III of the Australian Constitution is ‘based … on the assumption of traditional judicial procedures, remedies and methodology’.25 Similarly, in Harris v Caladine, Gaudron J observed that:26 Judicial power is usually defined in terms of its subject matter, but it is a power that, for complete definition, requires description of its dominant and essential characteristic,

Page 89 namely, that it is exercised in accordance with that process which is referred to as ‘the judicial process’.

23 (2013) 251 CLR 533; [2013] HCA 5

.

24 (2013) 251 CLR 533; [2013] HCA 5 at [27]–[28]

(citations omitted).

25 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 607 26 (1991) 172 CLR 84 at 150

per Deane J.

.

3.16 But this, of course, necessitates the questions: what are the characteristic features of a court, and of the judicial process? Accounts have varied; the remainder of this section identifies some of the fair trial principles which have been found by various members of the High Court to be characteristic. It should be noted that the High Court has, on many occasions, emphasised that an exhaustive and conclusive definition of the characteristic features of a court, or the judicial process,is impossible.27

27 See, for example, Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [64]

per Gummow, Hayne and Crennan JJ.

3.17 One aspect of the separation of powers is that the legislature cannot usurp the function of the court.28 For example, parliament could not enact a law which required the court to decide a case in a particular way, thus giving the imprimatur of a judgment to a policy decision of the legislature or executive. Parliament cannot ‘direct the courts as to the manner and outcome of the exercise of their jurisdiction’.29 On the other hand, it is permissible for parliament to create rules of evidence and procedure which regulate the conduct of court proceedings, provided those rules do not disguise what is in reality an usurpation of power.30

Page 8 of 64 Chapter 3 The Right to a Fair Trial 28 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 607

per Deane J.

29 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 36–7 Brennan, Deane and Dawson JJ. 30 Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12 Starke JJ; Nicholas v R (1998) 193 CLR 173 at 188–90; [1998] HCA 9 per Gaudron J, 232–6 per Gummow J.

per

per Knox CJ, Gavan Duffy and

per Brennan CJ, 200–3 per Toohey J, 207–8

3.18 It is settled that judicial decisions are characteristically binding and conclusive.31 It is also accepted that an independent and impartial tribunal is ‘fundamental to the Australian judicial system’.32 This point was put in the following terms by Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission, who acknowledged the impossibility of comprehensively defining the characteristics of a court, but nevertheless observed that:33 An important element … in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.

It is also accepted that it is a characteristic element of a court that they ordinarily sit in public, and that proceedings take place ‘by way of open and public inquiry’.34

Page 90

31 Brandy v HREOC (1995) 183 CLR 245 ; Bass v Permanent Trustee (1999) 198 CLR 334; [1999] HCA 9 at [45] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 32 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [3] per Gleeson CJ, McHugh, Gummow and Hayne JJ; see also North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [29]

per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

33 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [64] Gummow, Hayne and Crennan JJ (citations omitted).

per

34 See, for example, Russell v Russell (1976) 134 CLR 495 at 506–7 per Barwick CJ, 520 per Gibbs J, 532 per Stephen J; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 at [27]

per French CJ and Gageler J, extracted above at 3.15; Grollo v Palmer (1995) 184 CLR 348 at

379–80 per McHugh J, 394 per Gummow J; for a discussion of the principle of publicity, including the exceptions to the general rule, see generally 3.46–3.67 below.

3.19 As noted earlier,35 it is established that judicial power entails an application of the law to the facts in order to determine existing rights. From this, it follows that the parties must have a right to be heard: that they ‘be given an opportunity to present their evidence and to challenge the evidence led against them’.36 Conversely:37

Page 9 of 64 Chapter 3 The Right to a Fair Trial

It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.

35 See 3.13 above. 36 Bass v Permanent Trustee (1999) 198 CLR 334; [1999] HCA 9 at [56] Gummow, Hayne and Callinan JJ.

per Gleeson CJ, Gaudron, McHugh,

37 Bass v Permanent Trustee (1999) 198 CLR 334; [1999] HCA 9 at [56] Gummow, Hayne and Callinan JJ.

per Gleeson CJ, Gaudron, McHugh,

3.20 More expansive accounts have been given. For example, in Harris v Caladine, Gaudron J expressed the view that judicial power entailed the following elements:38 … it is a power which cannot be exercised until the ‘tribunal which has power … is called upon to take action’, which (subject to limited exceptions) proceeds by way of open and public inquiry, which involves the application of the rules of natural justice and which is directed to ascertaining ‘the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined’. This characteristic imports a requirement that a court delegate its powers and functions only to persons and on terms designed to ensure that the judicial process will be observed. Thus, for example, a particular power or function cannot be delegated to a person having an interest in the matter or on terms permitting of its being exercised secretly or arbitrarily.

The reference to natural justice may be found elsewhere in the Ch III jurisprudence. In Nicholas v R, Gaudron J went even further, to suggest that elements of case management were inherent in the exercise of judicial power:39 In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

These latter fair trial principles have not yet commanded the support of a majority of the High Court.

Page 91

38 (1991) 172 CLR 84 at 150 39 (1998) 193 CLR 173 at 208–9

(citations omitted). .

Page 10 of 64 Chapter 3 The Right to a Fair Trial

3.21 It has also been suggested that the Australian Constitution may protect a principle of equality before the court. In Leeth v Commonwealth, Deane and Toohey JJ (who were in dissent in that case) stated:40 At the heart of that obligation [to act judicially] is the duty of a court to extend to the parties before it equal justice, that is to say, to treat them fairly and impartially as equals before the law and to refrain from discrimination on irrelevant or irrational grounds.

This principle of procedural equality has received support in other cases, although never by a majority of the High Court. Its constitutional status must therefore be regarded as unsettled. More frequently, the High Court has been called on to consider issues of substantive equality (now rejected as a doctrine), arising from the possibility that those convicted of a Commonwealth offence might be treated differently depending on the differing procedures (such as sentencing rules) in the state court in which they are tried.41

40 Leeth v Commonwealth (1991) 174 CLR 45 at 487; see also Gaudron J at 502–3. 41 J Stellios, The Federal Judicature: Chapter III of the Constitution Commentary and Cases, LexisNexis Butterworths, Sydney, 2010, [6.37]–[6.53].

3.22 Aspects of the right to a fair trial in civil proceedings are therefore likely subject to constitutional protection, although the extent of such protections must be regarded as unclear.42

42 See J Stellios, The Federal Judicature: Chapter III of the Constitution Commentary and Cases, LexisNexis Butterworths, Sydney, 2010, [6.32]–[6.33].

Common law protection of fair trial rights

3.23 That some fair trial principles are not constitutionally protected does not mean, however, that they are not protected by the court. Indeed, extra-judicially, the right to a fair trial has been described as ‘perhaps the best established example of a presumption that is appropriately characterised as part of a common law bill of rights’.43 The remaining sections of this chapter will consider the protection afforded in Australian law to various fair trial rights. It ought to be borne in mind, though, that only some of these rights have constitutional protection.

43 Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, Final Report, December 2015, [8.43], citing J Spigelman, ‘The Common Law Bill of Rights’(2008) 3 Statutory Interpretation and Human Rights: McPherson Lecture Series 25.

Page 11 of 64 Chapter 3 The Right to a Fair Trial

3.24 We start with those which have been accepted by the High Court to be amongst the ‘defining characteristics’ of courts, namely:44 •

‘the reality and appearance of decisional independence and impartiality’;

•

‘the application of procedural fairness’, which connotes both an impartial tribunal and the right of the parties to be heard;

•

adhering to the principle of open justice; and

•

providing reasoned decisions.

Page 92 We will then address other components of the right to a fair trial, such as the right of access to the court, which might be thought of as guiding principles which inform the approach of the court to substantive rights.

44 See the summary in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44] per French CJ and Kiefel J; see also Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [67]–[68] per French CJ.

The right to an independent and impartial tribunal The general principle

3.25 Courts owe a duty of impartiality to litigants and to the public at large. This is a ‘fundamental’ aspect of the adversarial system of civil justice.45 A judge must evaluate the dispute by reference to general rules (whether of law or of factual reasoning), which are accepted independently of the particular case, without being influenced by personal preference or animosity concerning the parties.

45 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [3] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.26 Australian law, like English law, insists not only on absence of bias, but also on the absence of any appearance of bias. As Lord Hewart CJ put it, it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.46 The absence of an appearance of bias is essential if the court is to be seen to be upholding the rule of law and is to retain public confidence in the administration of justice.47

Page 12 of 64 Chapter 3 The Right to a Fair Trial 46 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]

at 259

; see also Ebner v Official Trustee in

per Gleeson CJ, McHugh, Gummow and Hayne JJ.

47 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [33]

per French CJ.

3.27 There are two separate heads of disqualification for bias. First, a judge may be disqualified for actual bias. Secondly, and more commonly, a judge may be disqualified because there is a reasonable apprehension of bias — that is, there are circumstances which may lead a fair-minded observer to apprehend that the decision-maker may be affected by bias. Where the judge is actually biased, or there is a reasonable apprehension of bias, a litigant has a right to insist that a judge should step down or else that the judge’s decision should be set aside. It should be noted that although both Australian and English law recognise the principle of apprehension of bias, the rules are different in the jurisdictions.48

48 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [9]–[10] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.28 The principle that an arbiter of legal disputes must be, and must be seen to be, impartial, is also applicable to administrative decision-making. However, the principles may apply differently in the context of administrative decision-making,owing to the different nature of the process and the different circumstances of the decisionmaker.49

Page 93

49 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [4] per Gleeson CJ, McHugh, Gummow and Hayne JJ; cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [177]–[192]

per Hayne J (Gleeson CJ and Gummow J agreeing at [99]–[100]).

Disqualification for apprehended bias

3.29 Given that the test for identifying apprehended bias has to focus on the possibility or appearance of bias, the question inevitably arises: what kind of possibility or appearance and from whose point of view? In Australia, the principles are well settled:50 … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

Page 13 of 64 Chapter 3 The Right to a Fair Trial It must be emphasised that the test does not require any ‘prediction about how the judge or juror will in fact approach the matter’,51 if the question arises before the decision has been made. Similarly, where questions of apprehended bias arise after the decision has been made, it is irrelevant to consider ‘what factors actually influenced the outcome’, or the reasoning process of the judge.52

50 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

51 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

52 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ (emphasis in original); see also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]

per Gummow ACJ, Hayne, Crennan and Bell JJ.

3.30 Instead, the test for apprehended bias requires the consideration of two matters:53 First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

53 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.31 The test for apprehended bias requires an examination of the circumstances from the perspective of a lay observer. It is recognised that this means that ‘judgments are made on a subset of the available information’.54 A judge or appellate court assessing the possibility of bias is therefore required to set aside their own knowledge of judicial conduct.55 For example, it has been observed that the court ‘must be particularly careful not to attribute to the lay observer judicial qualities of discernment, detachment

Page 94 and objectivity which judges take for granted in each other’.56 There is good reason for limiting the rule in this manner, as French CJ in British American Tobacco Australia Services Ltd v Laurie explained.57 Because the justification for the apprehended bias rule rests, in part, on the need for public confidence in the justice system, it must take into account how matters appear to the public. Thus, ‘it is not enough to show that those in the know would not apprehend any bias’.58

Page 14 of 64 Chapter 3 The Right to a Fair Trial

54 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [33] 55 Southern Equities Corp Ltd v Bond [2000] SASC 450 at [126]

per Bleby J.

56 Southern Equities Corp Ltd v Bond [2000] SASC 450 at [126]

per Bleby J.

57 (2011) 242 CLR 283; [2011] HCA 2 at [33]

per French CJ.

.

58 Sengupta v Holmes [2002] EWCA Civ 1104 at [11]

per Laws LJ, cited by French CJ.

3.32 Nevertheless, in Johnson v Johnson, a majority of the High Court explained that it remained relevant that the person whose conduct was to be scrutinised was, by profession, a judge:59 … two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant,the immaterial and the prejudicial’. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. …

59 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]–[13] and Hayne JJ.

per Gleeson CJ, Gaudron, McHugh, Gummow

3.33 The difficulty in cases of apprehended bias is in the application of the principles to particular cases. At the outset, it must be observed that a judge who is invited to recuse themselves owing to an apprehension of bias faces a dilemma. On one hand, there is a competing principle that judges are obliged to exercise jurisdiction in respect of cases to which they are allocated, and the corresponding principle that parties are not free to select the decisionmaker.60 From a practical perspective, it is obviously undesirable that flimsy allegations of apprehended bias could lead to a judge recusing themselves, as this could lead in practice to parties exerting inappropriate control over the identity of the judicial decision-maker.61 However, on the other hand, a judge’s refusal to recuse themselves may lead to appellate litigation, with attendant delay and expenditure of court and party resources. For this reason, a majority of the High Court in Ebner v Official Trustee in Bankruptcy (Ebner) explained that it may well be acceptable for a judge to recuse themselves even in doubtful circumstances:62 In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system

Page 95 would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.

Page 15 of 64 Chapter 3 The Right to a Fair Trial That would be intolerable.

60 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [19] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

61 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [20] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

62 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [20] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.34 Secondly, particular difficulties arise in the modern case management context.63 Some Australian jurisdictions operate a docket system, in which the same judge will be responsible for the interlocutory case management of the litigation and the trial itself.64 Further, judges ought to manage cases actively under most modern rules of court.65 Active case management may well entail making decisions about the conduct of the matter which are contrary to the interests of one party. It may also entail the judge making remarks about the manner in which one party has conducted themselves in the litigation. These features of modern case management raise the spectre of an allegation of apprehended bias being made because of the manner in which the judge has conducted the interlocutory stages of the matter. There may therefore be a tension between the need to ensure that the judge appears impartial, and the need to ensure that cases are managed efficiently.66

63 For an excellent discussion of the problems of interlocutory judgments and specialist tribunals, see A Olijnyk, ‘Apprehended Bias and Interlocutory Judgments’ (2013) 35 Sydney Law Review 761. 64 See A Olijnyk, ‘Apprehended Bias and Interlocutory Judgments’ (2013) 35 Sydney Law Review 761 at 765–6. 65 See generally Chapter 1. 66 A Olijnyk, ‘Apprehended Bias and Interlocutory Judgments’ (2013) 35 Sydney Law Review 761.

3.35 Allegations of actual or apprehended bias can arise in a variety of factual contexts. In Webb v R ,67 Deane J identified four principal categories of case, which have been used in subsequent judgments as a helpful taxonomy:68 The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice,partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

Page 16 of 64 Chapter 3 The Right to a Fair Trial These categories are not exhaustive of all the circumstances which may give rise to an allegation of actual or apprehended bias, but for present purposes they serve to illustrate common circumstances.

67 (1994) 181 CLR 41 at 74

(citations omitted, emphasis added).

68 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [24] per Gleeson CJ, McHugh, Gummow and Hayne JJ; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [38]

per French CJ.

3.36 The suggestion that an interest in litigation may overlap with an impermissible association between judge and litigant was explained further by the majority in Ebner. Two appeals were heard together in Ebner: in one, the judge held shares in a bank, and

Page 96 the bank was a party; in the other, the judge was a beneficiary of a trust which held shares in a bank, and the bank had a financial interest in the outcome of proceedings, but was not a party. The majority explained that ownership of shares, if the value of those shares would be affected by the proceedings, was an example both of an interest in litigation and an association with a litigant.69 An interest in proceedings need not be a financial interest, and it need not be a direct interest.70

69 At [2], [28], [31]. 70 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [26] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.37 In the context of cases of bias arising because of interest, English case law has recognised a distinct principle: a judge will automatically be disqualified from sitting in litigation in which they have an interest in the outcome.71 Like the rule against apprehended bias, it does not require any assessment of the factors which actually influenced the judge in deciding the case at bar. Although the rule was originally concerned only with direct financial interests in the outcome, it has more recently been expanded to include other forms of interest.72 The third edition of the English version of this textbook provides a criticism of this rule; in particular, questioning its utility in light of its similarity with the principle of apprehended bias.73 The Australian High Court has rejected the suggestion that there is a ‘separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding’, describing such a test as ‘anomalous’ and ‘too wide, and in other respects too narrow’ (amongst other criticisms of the rule).74

71 See generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [3.93]–[3.101]. 72 The leading case is R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 ; [1999] 1 All ER 577 (HL) [3.93]–[3.94].

; see also Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London,2013,

Page 17 of 64 Chapter 3 The Right to a Fair Trial 73 Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [3.95]–[3.101]. 74 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [54] Gummow and Hayne JJ.

per Gleeson CJ, McHugh,

3.38 The leading judgment on the question of pre-judgment is Vakauta v Kelly .75 The litigation had concerned a claim for damages for personal injury. Liability had been admitted, so that the only issue between the parties was quantum. The defendant was insured, and in support of its position the insurer, GIO, proposed to lead the evidence of three expert medical witnesses. The trial judge had heard evidence from these three witnesses in other proceedings involving GIO, and had clearly been unimpressed by them, and indeed with GIO’s panel of expert witnesses more generally. In the course of the proceedings, the trial judge made a variety of adverse remarks, including describing the three proposed witnesses as the ‘unholy trinity’, stating that he was ‘not usually very impressed with the views of [the three doctors], on the basis that those views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously’, and referring to GIO’s ‘usual panel of doctors

Page 97 who think you can do a full week’s work without any arms or legs’.76 Ultimately, only one of those three proposed witnesses, a Dr Lawson, was called to give oral evidence (a written report was provided by another), although GIO called further expert medical witnesses. In his judgment, the trial judge accepted the evidence of the plaintiff ’s doctors, which had been substantially agreed by one of GIO’s witnesses. Nevertheless, his Honour made further adverse remarks concerning Dr Lawson in his judgment, stating at one point:77 Dr Lawson’s suggestion that the plaintiff could work in the casualty ward did not impress me. Neither did the remainder of his evidence, which was as negative as it always seems to be — and based as usual upon his non-acceptance of the genuineness of any plaintiff ’s complaints of pain.

At two other points in his judgment, his Honour had referred to the fact that particular propositions had been accepted ‘even by Dr Lawson’.78 A majority of the High Court found that the trial judge’s remarks gave rise to apprehended bias.

75 (1989) 167 CLR 568

.

76 The remarks of the trial judge were made in exchanges with counsel, which were reproduced by Toohey J at 580–3; attention was drawn to these particular statements by Brennan, Deane and Gaudron JJ at 572, and to the latter two by Dawson J at 574. 77 Set out by Toohey J at 583. 78 Referred to by Toohey J at 583.

3.39 The plurality of the High Court, in remarks which were strictly obiter, distinguished between the position of an expert witness and a lay witness ‘“whose evidence is of significance on ... a question of fact” which “constitutes a live and significant issue” in the case’.79 The reason for the distinction was the practical reality that a judge who tries personal injuries actions will inevitably encounter expert medical witnesses repeatedly, will inevitably form views about the credibility of those witnesses,and that in ‘some cases … it will be all but impossible to put such preconceived views entirely to one side’.80 The plurality also emphasised that the judgment ought not to chill the practice of trial judges identifying, during the course of a hearing, the difficulties which stood in the way of one party’s case — including, where applicable,any views about the reliability of witnesses.81

Page 18 of 64 Chapter 3 The Right to a Fair Trial

79 Quoting from Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300 80 Vakauta v Kelly (1989) 167 CLR 568 at 570

per Brennan, Deane and Gaudron JJ.

81 Vakauta v Kelly (1989) 167 CLR 568 at 571

per Brennan, Deane and Gaudron JJ.

.

Disqualification for actual bias

3.40 Actual bias is very difficult to prove for several reasons. First, it requires findings to be made as to the factors which actually bore upon the judge’s decision. In Michael Wilson & Partners Ltd v Nicholls, a majority of the High Court explained:82 An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done.

Page 98 Clearly, proving that particular factors actually bore upon the reasoning of the judge is more difficult than establishing that a reasonable person may apprehend that those same factors might affect the reasoning.

82 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33] Crennan and Bell JJ.

per Gummow ACJ, Hayne,

3.41 In the case of actual bias arising from pre-judgment, the High Court has stated that before a judge or other decision-maker would be disqualified, ‘it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties’.83 More recently, it has been said that it must be shown that there was:84 … a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.

83 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 per Dixon CJ, Williams, Webb and Fullagar JJ. 84 Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 per French J, approved by Gleeson CJ and Gummow J Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]

. The remarks of French J were made in the context of explaining what ‘actual bias’ meant in the context of

Page 19 of 64 Chapter 3 The Right to a Fair Trial s 476 of the Migration Act 1958 (Cth) as it then existed.However, the significance of the statutory context seems to have been that actual bias was required, and other aspects of natural justice — in particular, apprehended bias — were excluded: see 103–4.It was not suggested that the meaning of ‘actual bias’ under the Act was different to what it would have been at common law.

3.42 Secondly, the task of proving actual bias is forensically difficult. This is because the seriousness of the allegation bears upon the standard to which the court must be satisfied before it can make a finding that the allegation is proved.85 Accordingly, actual bias must be ‘distinctly made and clearly proved’.86 Thirdly, further evidential difficulties may arise because it ‘requires an assessment of the state of mind’ of the decision-maker, which usually will require inferences to be drawn from their statements and conduct.87 It is therefore uncommon to find cases in which actual bias is alleged, much less established.88

85 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2 McTiernan J.

per Dixon J; see also at 350–1 per Rich J, 372 per

86 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001]HCA 17 at [69] Gleeson CJ and Gummow J, [127] per Kirby J, who was in dissent.

per

87 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33] per Gummow ACJ, Hayne, Crennan and Bell JJ; see discussion in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134–5 per North J; and cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [125]

per Kirby J. The law does not allow judges to be questioned about what has influenced their decision:

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

at 472

.

88 For example, actual bias was relied upon as an alternative in Vakauta v Kelly (1989) 167 CLR 568 to be established.

, but found not

Waiver of any objection to the appearance of bias

3.43 It is well accepted that a litigant may waive any objection to a judge hearing a case in circumstances where there is a reasonable apprehension of bias.89 In fact, where

Page 99 a litigant is ‘fully aware of the circumstances’ giving rise to such an apprehension during the hearing, but abstains from making any objection, it will later be precluded from raising an objection.90 In order to avoid waiving the objection, it is not always necessary that a party invite the judge to recuse themselves as soon as the difficulty becomes apparent; such an application may be premature. Rather, what is required is that the litigant raise the objection.91 There are two good reasons for this approach. First, if an objection is raised during the course of a hearing, the judge may be able to correct any misapprehension.92 Secondly, as the plurality in Vakauta v Kelly explained, parties who are able to object and choose not to do so ought to be held to that election as a matter of fairness to their opponent:93 It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

Page 20 of 64 Chapter 3 The Right to a Fair Trial

89 Vakauta v Kelly (1989) 167 CLR 568 at 586–7

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

90 Vakauta v Kelly (1989) 167 CLR 568 at 586–7

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

91 Vakauta v Kelly (1989) 167 CLR 568 at 587

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

92 Vakauta v Kelly (1989) 167 CLR 568 at 572

per Brennan, Deane and Gaudron JJ.

93 Vakauta v Kelly (1989) 167 CLR 568 at 572

per Brennan, Deane and Gaudron JJ; see also at 577 per Dawson J.

3.44 It follows that a reasonable apprehension of bias may only be waived where it arises from conduct or comments which occur prior to judgment. Where the apprehension of bias is said to arise because of remarks made by a judge in a reserved judgment, it cannot be said that a party has had an opportunity to object to these. For example, in Vakauta v Kelly (discussed above), the defendant insurer was found to have waived any objection to the remarks which were made by the judge during the hearing concerning his preconceptions of the credibility of certain proposed witnesses, which a majority of the High Court had found would give rise to a reasonable apprehension of bias. Nevertheless,the majority also found that no issue of waiver could arise in respect of statements in the reserved judgment which were critical of one of those witnesses, because there had been no opportunity to object to the contents of the judgment.94 Despite the distinction being drawn between the two categories of remarks, it was also accepted that the remarks in the judgment could properly be assessed in light of the remarks which had been made during the hearing.95

94 Vakauta v Kelly (1989) 167 CLR 568 at 588

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

95 Vakauta v Kelly (1989) 167 CLR 568 at 588

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

3.45 Waiver of bias is not uncontroversial. It has been observed that because the right to a tribunal which is impartial — and which is seen to be impartial — is a matter of public interest as well as private interest, it cannot be the case that a party to litigation can waive its rights to bias in the same manner as it might waive purely private rights.96 Against that, though, is the consideration that a reasonable observer may well be less

Page 100 likely to apprehend bias in circumstances where the parties themselves have failed to take any objection.97 As Toohey J explained in Vakauta v Kelly:98 While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken.

Page 21 of 64 Chapter 3 The Right to a Fair Trial

96 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 373

per Kirby P (in dissent).

97 Vakauta v Kelly (1989) 167 CLR 568 at 577

per Dawson J.

98 Vakauta v Kelly (1989) 167 CLR 568 at 588

per Toohey J (Brennan, Deane and Gaudron JJ agreeing).

The principle of publicity and the right to a public hearing

3.46 As a general principle, court proceedings should be held in public. In Australia, this principle, to which we may refer as the publicity or transparency principle, has two distinct aspects: a public aspect and a litigant-related aspect. The public aspect implies that members of the public have a right to attend court proceedings, subject to practical limitations of space and good order, to inspect certain court documents and to publish what has passed in open court. In addition to the rights that every member of the public enjoys, parties to civil proceedings have an additional right to insist that their dispute is adjudicated in a place that is accessible to the public.

3.47 The public aspect of the publicity principle enables interested members of the public to challenge the exclusion of the public from court proceedings. Equally importantly, it restricts the ability of parties to litigation to exclude the public from court hearings of their case by requesting the court to hold private hearings. It will be suggested that the public aspect of the publicity principle requires that members of the public should be given meaningful access to written materials on which the court based its decision but which were not read out in public.

The principle of publicity in Australian law Proceedings to be held in open court

3.48 Australian law recognises that it is ‘of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.99 Therefore, as a matter of general principle, justice is dispensed in open court. That proceedings are heard in open court is a fundamental common law principle;100 in the Australian constitutional setting, it has been observed that sitting openly is a

Page 101 characteristic aspect of a court, subject to the protections discussed earlier in this chapter.101

99 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256

at 259

Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] JJ. 100 See Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50–3

per Lord Hewart CJ; Ebner v Official

per Gleeson CJ, McHugh, Gummow and Hayne

per Kirby P as to the history of the principle.

Page 22 of 64 Chapter 3 The Right to a Fair Trial 101 Russell v Russell (1976) 134 CLR 495 at 506–7 per Barwick CJ, 520 per Gibbs J, 532 per Stephen J; see generally 3.18 above. In some jurisdictions, the principle of open justice is also reflected in legislation: see, for example, Federal Court Act 1976 (Cth) s 17; Court Suppression and Non-Publication Orders Act 2010 (NSW) s 6; Supreme Court of Queensland Act 1991 (Qld) s 8; Supreme Court Act 1935 (SA) s 46A; Open Courts Act 2013 (Vic) s 4.

3.49 The principle of publicity has further manifestations, in addition to conferring a right on litigants to insist on a public hearing and a right on members of the public to attend court proceedings. It implies that what has been done or said at a public hearing enters the public domain, so that the parties and members of the public are free to publicise it.102

102 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Microsoft Corporation (1999) 88 FCR 438; [1999] FCA 198 at [13]

; Computer Interchange Pty Ltd v

per Madgwick J. As to the public interest that

court proceedings are reported, see John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476–7,481 McHugh JA (Glass JA agreeing); Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 43

per

per Toohey J.

3.50 ‘Publicity’, Bentham wrote, ‘is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial’.103 There are compelling reasons why the principle of publicity should be firmly rooted in Australian law. Exposing the judicial process to the public gaze constitutes an important safeguard against bias, unfairness and incompetence. Judges who know that they themselves are being judged by public opinion are less likely to act in an arbitrary, partial or unreasonable manner. Put differently, dispensing justice in public makes the judiciary accountable in the performance of their duties. In Russell v Russell, Gibbs J observed that the rule that court proceedings take place in public:104 … has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.

103 Quoted with approval in Scott v Scott [1913] AC 417

(HL) at 477 per Lord Shaw; R v Tait (1979) 24 ALR 473 at 488

per Brennan, Deane and Gallop JJ; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [61]

per Spigelman CJ (Mason P and Beazley JA agreeing).

104 Russell v Russell (1976) 134 CLR 495 at 520

per Gibbs J.

3.51 Transparency of court proceedings has other advantages. By reducing the scope for ill-informed and malicious criticism of their actions, the open process offers protection to the judiciary itself. Publicity contributes to the determination of truth by encouraging people with relevant information to come forward and by discouraging

Page 23 of 64 Chapter 3 The Right to a Fair Trial falsehood. Further, by bringing into the open moral, social and legal issues, the open trial promotes public debate that is so important to the democratic shaping of moral and legal rules. Lastly, the sight of effective and fair proceedings tends to enhance public confidence in the administration of justice and thereby promote respect for

Page 102 the law and its institutions. Given these considerations,it is only to be expected that the principle of publicity should be regarded as indispensable in any well-governed democratic society.

3.52 Given the constitutional dimension of the principle of publicity, parties have no right to private court proceedings. They have no right to demand that the court should exclude the public from the hearings concerning their dispute or suppress publication of its decisions. However, the court does have power to make orders, in limited and exceptional circumstances, which restrict the principle of publicity in some respect.105

105 Exceptions to the principle of publicity are discussed below at 3.62–3.67.

The retreat of orality and the problem of transparency

3.53 The principle of open court proceedings goes hand in hand with the freedom of every citizen to communicate and publicise what has passed in open court. However, substantial difficulty is caused in this regard as a result of the reduction in the oral nature of the trial process.

Reduction in orality

3.54 In the past, public access to court proceedings was sufficient to ensure their transparency. Until relatively recently, the public was able to view and hear civil proceedings in their entirety. There would be opening speeches in which counsel would provide a general explanation of the issues and an outline of the evidence they intended to call. Witnesses would give oral evidence, counsel would read out the documentary evidence and even the authorities in support of their arguments.106 However, the oral nature of proceedings has declined in recent times, as Finkelstein J has observed:107 … parties are required to submit their evidence in chief in the form of affidavits or written statements (with exhibits) together with written outlines of their submissions both on the facts and the law, well before the hearing. The efficient judge will read the material in private and when the hearing begins will usually announce that fact to the parties, thus relieving them of the burden of reading out evidence and rehearsing their arguments. Oral evidence will usually be confined to the crossexamination of key witnesses. To the bystander who has not read the affidavits, this evidence will be largely meaningless. Counsel’s arguments will be limited to expanding points already made in the written submissions, and will make little sense to any person not familiar with the detail. One unintended result is that the rule of open justice will not fully expose what has taken place in court. Much of what now occurs is no different from a court sitting in private.

Page 24 of 64 Chapter 3 The Right to a Fair Trial 106 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41873; [2002] FCA 609 at [4]

per Finkelstein J.

107 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41873; [2002] FCA 609 at [5]

per Finkelstein J; see the similar remarks made in McCabe v British American Tobacco

Australia Services Ltd (No 3) [2002] VSC 150 at [19]

per Byrne J.

3.55 The diminution of the oral component of the trial has been driven by considerations of efficiency; the desire to avoid the waste of court and litigant time

Page 103 through reading out, in open court, documents which judges could more quickly read for themselves.108 But the increasing reliance on written materials has the consequence that members of the public could be denied any meaningful opportunity for comprehending the issues and following the adversarial process of testing the parties’ respective cases.109

108 Harman v Secretary of State for the Home Department [1983] 1 AC 280

at 305–6

v British American Tobacco Australia Services Ltd (No 3) [2002] VSC 150 at [19]

per Lord Diplock; McCabe

per Byrne J.

109 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41873; [2002] FCA 609 at [3]

per Finkelstein J.

3.56 It has been suggested that the importance of the principle of open justice is such that adjustments might need to be made to compensate for the difficulties presented by the reduction in orality; specifically, that:110 The achievement of the fundamental policy objective, that this process be conducted under public scrutiny, may require in this modern environment not only that judgments be fuller than may have been the practice a century past, but that the public have more ready access to the written communications to the judge by witnesses and counsel as part of this process.

As will be seen in the following section, the public is now able to inspect documents to a far greater extent than would have been permissible at common law.

110 McCabe v British American Tobacco Australia Services Ltd (No 3) [2002] VSC 150 at [19] per Byrne J (citations omitted); cf Dian AO v Davis Frankel & Mead (A Firm) (OOO Alfa-Eco intervening) [2005] 1 WLR 2951 ; [2004] EWHC 2662 (Comm) at [29]

per Moore-Bick J.

The public right to inspect materials placed before the court

Page 25 of 64 Chapter 3 The Right to a Fair Trial

3.57 Outside the hearing, members of the public have some rights of access to the court materials. At common law, it is well established that any member of the public may have access to a court order, because it is a public document.111 But there is no right of access to documents contained in the court file.112 In John Fairfax Publications Pty Ltd v Ryde Local Court, Spigelman CJ reconciled this rule with the principle of open justice in the following terms:113 Neither the Claimants, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.

Page 104

111 David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294 at 301 per Street CJ; Titelius v Public Service Appeal Board (1999) 21 WAR 201; [1999] WASCA 19 at [96]–[100] 112 Titelius v Public Service Appeal Board (1999) 21 WAR 201; [1999] WASCA 19 Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [31]

per Ipp J (Wallwork J agreeing). ; John Fairfax Publications Pty Ltd v

per Spigelman CJ (Mason P and Beazley JA

agreeing); R v Miroslav Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at [18]–[26] per Refshauge J; Baptist Union (Qld) — Carinity v Roberts (as a delegate of the Secretary, Dept of Social Services) (2015) 241 FCR 135; [2015] FCA 1068 at [27]

per Rangiah J.

113 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [29] Spigelman CJ (Mason P and Beazley JA agreeing).

per

3.58 However, there is provision in all jurisdictions for non-parties to have at least some access to the court file, although the extent of access varies. In most jurisdictions, there is a general rule that a non-party may inspect and copy any document, subject to certain exceptions identified in the rules.114 So, for example, in the Northern Territory, Queensland and Victoria, any document may be inspected unless the court has ordered it to remain confidential,115 whereas in the Australian Capital Territory and Tasmania, a wider range of exceptions are identified (although, in those cases, a non-party may apply for leave to inspect).116 In the Federal Court and in Western Australia, a nonparty is entitled to inspect and copy only a limited set of documents, identified in the rules, but may apply for leave to inspect any other document;117 South Australia has a similar provision.118 In New South Wales, non-parties can only access documents with the leave of the court, although this will usually be granted in respect of pleadings, and documents or information which is either in evidence, or would have been seen or heard by any person present in court.119

114 Court Procedures Rules 2006 (ACT) r 2903; Supreme Court Rules (NT) r 28.05; Uniform Civil Procedure Rules 1999 (Qld) rr 980 and 981; Supreme Court Rules 2000 (Tas) r 33; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28.05.

Page 26 of 64 Chapter 3 The Right to a Fair Trial 115 Supreme Court Rules (NT) r 28.05(2)(a) and see also (2)(b); Uniform Civil Procedure Rules 1999 (Qld) r 981; Supreme Court (General Civil Procedure) Rules 2015(Vic) r 28.05(2)(a) and see also (2)(b). 116 Court Procedures Rules 2006 (ACT) r 2903(2) and see also r 2903(3)–(6); Supreme Court Rules 2000 (Tas) r 33(4). 117 Federal Court Rules 2011 (Cth) r 2.32(2), (4) and (5); Rules of the Supreme Court 1971 (WA) O 67 r 11(1). 118 Non-parties are entitled to access certain categories of documents pursuant to s 131(1) of the Supreme Court Act 1935 (SA), and may apply to the court to inspect certain other categories of documents under s 131(2). 119 Practice Note SC Gen 2 (NSW), [6]–[7], [14]–[18].

3.59 In an application for leave to inspect a file, it will be relevant whether a document has been read in open court.120 Indeed, it has been held that where material is on the court file, but has not been admitted into evidence, ‘the interests of open justice were not engaged’.121

120 Where ‘counsel announces in open court that an affidavit will be “read”’, it will be treated as if the entire content had been read aloud in court: Australian Securities and Investments Commission v Cassimatis(No 4) [2015] FCA 465 at [9]–[10] per Edelman J. It should be noted that when a discovered document has been admitted into evidence in open court, it is no longer subject to the implied undertaking not to publicise it, or to use them for another purpose: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32–3 / per Mason CJ (Dawson and McHugh JJ agreeing); as to the scope of the implied undertaking with respect to discovered documents, see Chapter 15, 15.180–15.196. 121 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [40] (per curiam); see also Baptist Union (Qld) — Carinity v Roberts (as a delegate of the Secretary, Dept of Social Services) (2015) 241 FCR 135; [2015] FCA 1068 at [27]

per Rangiah J.

3.60 Competing views have been expressed as to the circumstances in which leave may be refused to a non-party who wishes to access documents on a court file. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3), Finkelstein J identified the test for granting leave under the Federal

Page 105 Court Rules to a non-party to access material which had been relied on by the judge. His Honour found that there was a ‘strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence’, and that leave should be refused only in ‘exceptional circumstances’.122 The presumption would be particularly strong where the judge had relied on material which had been read in private, rather than being read out in court.123 The requirement that exceptional circumstances are necessary to justify refusing leave has been followed by other judges.124

122 (2002) ATPR 41-873; [2002] FCA 609 at [7]

per Finkelstein J; see also Baptist Union (Qld) — Carinity v Roberts

(as a delegate of the Secretary, Dept of Social Services) (2015) 241 FCR 135; [2015] FCA 1068 at [36] J. 123 (2002) ATPR 41-873; [2002] FCA 609 at [7]

per Rangiah

per Finkelstein J.

124 See, for example, R v Miroslav Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at [40]

per Refshauge J.

Page 27 of 64 Chapter 3 The Right to a Fair Trial

3.61 But other courts have taken a more restrictive approach. For example, in John Fairfax Publications Pty Ltd v Ryde Local Court, Spigelman CJ adopted, as a ‘useful test’ for when a document before the court ought to be publicly available, the following statement of principle:125 The test in my view is not what is actually read out — although all that is read out is published — but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.

His Honour endorsed the underlying principle for the application of this test as being that:126 … the policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.

Other cases, too, have adopted statements of principle less broad than Finkelstein J’s test. In Seven Network Ltd v News Ltd (No 9) , Sackville J accepted that a non-party ‘ordinarily’ ought to have access to ‘all non-confidential documents and other material admitted into evidence’, ‘unless the interests of justice require otherwise’.127 This test, too, has been followed by subsequent courts.128

Page 106

125 (2005) 62 NSWLR 512; [2005] NSWCA 101 at [68]

per Spigelman CJ (Mason P and Beazley JA agreeing),

adopting the test set out by Lord Clyde in Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 706 126 (2005) 62 NSWLR 512; [2005] NSWCA 101 at [69]

.

per Spigelman CJ (Mason P and Beazley JA agreeing),

adopting the statement of Byrne J in Smith v Harris [1996] 2 VR 335 at 350

.

127 (2005) 148 FCR 1; [2005] FCA 1394 at [27] . His Honour considered that this approach was consistent with the requirements of the practice direction in New South Wales, and with the approach of Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 judgment.

: see [27] of Sackville J’s

128 See, for example, Nicholson v Morgan [2012] WASC 65 at [32 , where Corboy J accepted as a test that the public would ‘ordinarily’ have access to ‘documents read in court and/or tendered as evidence’, followed in R v Miroslav Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at [39] . In the Federal Court, Sackville J’s approach was preferred in Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV (2008) 222 FCR 580; [2008] FCA 783 at [36]

by Jacobson J, who also considered Finkelstein J’s remarks.

Exceptions to the general principle Exceptions require strong and compelling reasons

Page 28 of 64 Chapter 3 The Right to a Fair Trial

3.62 Exceptions to the general principle of publicity and to the right to a public hearing are permitted. But given the importance of the publicity principle, exceptions are strictly limited. Thus, an order directing that certain matters discussed at a trial should be withheld from the public cannot be made merely for protecting privacy or in order to avoid embarrassment.129 As Kirby P explained in John Fairfax Group v Local Court of NSW :130 It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

129 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 58 Samuels JA, 63–4 per Priestly JA. 130 (1991) 26 NSWLR 131 at 142–3

; and see also at 59–60 per Kirby P, 61–2 per

(citations omitted). But contrast the remarks of Deane J in Australian

Broadcasting Commission v Parish (1980) 43 FLR 129 at 157

, cited with approval in Gypsy Jokers Motorcycle Club

Inc v Commissioner of Police (WA) (2008) 234 CLR 532; [2008] HCA 4 at [41] Kiefel JJ.

per Gummow, Hayne, Heydon and

3.63 Where a departure from the open justice principle is required, the order of the court will be tailored to the circumstances of the case so as to limit the restriction to the bare minimum necessary to protect the countervailing interests. For example, the court may order that the proceedings take place in closed court (in camera), or that certain information concerning the proceedings not be published, or that the proceedings be conducted anonymously, rather than under the names of the parties.

Principal exceptions

3.64 Deviation from the general principle must be grounded on solid and compelling considerations that outweigh the principle of publicity. The point was explained by Kirby P in John Fairfax Group v Local Court of NSW, who,after identifying specific common law exceptions to the principle of open justice, stated:131 The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage

Page 107

Page 29 of 64 Chapter 3 The Right to a Fair Trial

its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.

131 (1991) 26 NSWLR 131 at 141

.

3.65 It is accepted that the principle of open justice may be abrogated in a variety of circumstances. At common law, certain exceptions to the principle are recognised. The identity of police informers is inadmissible in civil proceedings,132 as is the identity of complainants of blackmail.133 Where proceedings concern matters of national security, orders may be made to protect the confidentiality of information.134 The principle of open justice ‘may give way to the need for confidentiality in order to avoid prejudice to the administration of justice in cases in which publicity would destroy the subject matter of the litigation’, such as where the very purpose of the proceedings is to prevent the dissemination of confidential information.135 It ‘may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses’.136 For example, in TK v Australian Red Cross Society ,137 orders were made for the proceedings to be conducted anonymously because of the risk that the applicants would be deterred from commencing litigation if their identities were publicised. Although the categories of common law exception are not closed, the court will be reluctant to extend them, owing to the importance of the open justice principle.138 The exceptions may only apply where necessary for the proper administration of justice.139

132 Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247 Beyfus (1890) 25 QBD 494

at 498–9

per McHugh JA; and see also at 242 per Priestly JA; Marks v

per Lord Esher MR (Lindley LJ agreeing), 500 per Bowen LJ.

133 R v Socialist Worker Printers and Publishers Ltd [1974] 1 QB 637 Ackner JJ agreeing). 134 A v Hayden (1984) 156 CLR 532 at 574–5

at 651–2

per Lord Widgery CJ (Milmo and

per Wilson and Dawson JJ.

135 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [70]

; Gypsy Jokers

Motorcycle Club Inc v Commissioner of Police (WA) (2008) 234 CLR 532; [2008] HCA 4 at [41] per Gummow, Hayne, Heydon and Kiefel JJ); Andrew v Raeburn (1874) LR 9 Ch App 522 at 523 per Lord Cairns LC (James and Mellish LJJ agreeing). 136 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [68]

per French CJ.

137 (1989) 1 WAR 335 ; see also E v SE [2007] SASC 198 at [11]–[13] per Debelle J, where orders were made for anonymity, and to suppress publication of material concerning the proceedings, in circumstances where there was a ‘significant risk’ of prejudice to the plaintiff ’s forthcoming criminal trial if the civil proceedings were publicised. His Honour referred both to the inherent power of the court to make orders, and to the terms of s 69A of the Evidence Act 1929 (SA). 138 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [21]

per French CJ.

139 R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 549 Police Tribunal (1986) 5 NSWLR 465 at 476–7 243 CLR 506; [2011] HCA 4 at [87]–[88]

per Isaacs J; John Fairfax & Sons v

, 481 per McHugh JA (Glass JA agreeing); Hogan v Hinch (2011)

per Gummow,Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Page 30 of 64 Chapter 3 The Right to a Fair Trial

3.66 There are also a wide variety of statutory exceptions; for example, the court may have the power (either generally, or in certain types of proceedings) to close the court, or to order that material raised in court not be published.140 The precise scope of the

Page 108 court’s power will be a matter of statutory construction.141 There is some authority for the proposition that courts have an inherent jurisdiction to prevent publication of information disclosed in open court,142 although the question has been left open by a majority of the High Court.143 One of the difficulties in preventing such publication is that an order to that effect purports to bind persons who are not otherwise connected with the proceedings, nor present in the courtroom.144

140 See, for example, Federal Court Act 1976 (Cth) s 17(4) and Pt VAA (Suppression and non-publication orders); Court Procedures Act 2004 (ACT) s 41; Civil Procedure Act 2005 (NSW) s 73; Court Suppression and Non-Publication Orders Act 2010 (NSW); Supreme Court Act (NT) s 17; Supreme Court of Queensland Act 1991 (Qld) s 8; Evidence Act 1929 (SA) Pt 8, Div 2 (Orders for clearing court or suppressing publication of evidence etc); Evidence Act 2001 (Tas) ss 194J–194L and 195; Open Courts Act 2013 (Vic); Evidence Act 1906 (WA) ss 20G–20M. 141 See, for example, Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [29]–[34] curiam). 142 See, for example, Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 42 (2011) 243 CLR 506; [2011] HCA 4 at [23]–[26]

(per

per Toohey J; Hogan v Hinch

per French CJ.

143 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [88] JJ.

per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell

144 John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476–7

, 481 per McHugh JA (Glass JA agreeing).

3.67 Where there are good reasons for restricting publicity, the restriction must be confined to the bare minimum necessary for the protection of the interest in question.145 Accordingly, the court would normally exclude the public only from those parts of the proceedings that deal with sensitive information. For instance, the public would normally be excluded when commercial secrets or some other confidential information is discussed during the trial.146 Where necessary, the court may limit the disclosure of sensitive information to the parties’ representatives, and forbid them to make it available to their own clients.147 However, the court must not make such an order if it is likely to impede the ability of a litigant to present its case.148 Where proceedings concern confidential information, it has been said that judges ought to attempt to give their reasons for judgment in general terms which do not disclose that information, rather than to order that the judgment be suppressed.149

145 David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294 at 299 per Street CJ, 307–8 per Hutley AP; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 54–5

per Kirby P.

146 David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294 at 300 per Street CJ. 147 See 3.78–3.79 below. 148 See 3.79 below.

Page 31 of 64 Chapter 3 The Right to a Fair Trial 149 David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294 at 300–1 per Street CJ, 307–8 per Hutley AP, 310–11 per Samuels JA.

The right to be heard The general principle

3.68 It is a basic requirement of procedural fairness that any person affected by a judicial decision should have an opportunity to be heard before the decision is made. As French CJ explained in International Finance Trust Co Ltd v New South Wales Crime Commission :150

Page 109   Procedural fairness or natural justice lies at the heart of the judicial function … It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.

150 (2009) 240 CLR 319; [2009] HCA 49 at [54] . The terms ‘natural justice’ and ‘procedural fairness’ are sometimes used interchangeably. As to the relationship between the two concepts, see Justice Alan Robertson, ‘Natural Justice or Procedural Fairness’ (2016) 23 Australian Journal of Administrative Law 155; but cf J Edelman, ‘Why Do We Have Rules of Procedural Fairness’ (2016) 23 Australian Journal of Administrative Law 144.

3.69 The primary, though not the sole, purpose of the right to be heard is to give the affected person an opportunity to present their side of the story and respond to the evidence and arguments advanced against them.151 But without knowledge of the case to be met, a right to be heard is worth little. Therefore, to be effective, a right to be heard must be accompanied by a right to prior and timely notice of the case that one has to meet and by a reasonable opportunity to respond by presenting evidence or advancing argument.152 We may refer to this bundle of rights as the right to effective participation in the proceedings. A good part of the rules of procedure in every Australian jurisdiction consists of arrangements designed to implement and regulate the right to participation. For the present, it is sufficient to outline the general principles applicable under the common law and to draw attention to the more prominent exceptions.

151 As to the rationales or justifications for the hearing rule, see International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [141]–[145] ; cf J Edelman, ‘Why Do We Have Rules of Procedural Fairness’ (2016) 23 Australian Journal of Administrative Law 144 at 148–50. 152 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA at [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [157]

per Hayne, Crennan, Kiefel and Bell JJ.

Page 32 of 64 Chapter 3 The Right to a Fair Trial

3.70 The general principle has frequently been elaborated in the context of administrative law. In Annetts v McCann, Mason CJ, Deane and McHugh JJ made clear that principles of procedural fairness must be applied by a decisionmaker unless there is a clear legislative intention to the contrary:153 It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

Also in the administrative law context, it was explained that procedural fairness required that:154 It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected

Page 110 to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. … … a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

153 Annetts v McCann (1990) 170 CLR 596 at 598

per Mason CJ, Deane and McHugh JJ (citations omitted); see also

Plaintiff M61/2010E v Commonwealth (2010)243 CLR 319; [2010] HCA 41 at [74]

(per curiam).

154 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2 (per curiam), cited with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [29],[32]

(per curiam).

3.71 Thus the right to be heard is not confined to merely expressing one’s own arguments but contains a right to fair and timely notice of the case that one has to meet.155 As Lord Denning explained:156 If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.

Page 33 of 64 Chapter 3 The Right to a Fair Trial

155 Kioa v West (1985) 159 CLR 550 at 569–70 633 per Deane J. 156 Kanda v Government of Malaya [1962] AC 322 550 at 569–70

per Gibbs CJ, 582 per Mason J, 602 per Wilson J, 628 per Brennan J,

at 337

, cited with approval in Kioa v West (1985) 159 CLR

per Gibbs CJ.

3.72 Notice is required not only of the argument that the opponent proposes to advance, but also of the legal points and the sources on which the court proposes to rely of its own motion. In International Finance Trust Co Ltd v New South Wales Crime Commission, Heydon J observed that the right to be heard was reflected in various specific rules of practice, which his Honour described as ‘illustrations of the duty’ to hear the parties, including that:157 A court may not decide a case on a point not raised by one of the parties or by the court for the consideration of the parties. … The court is not entitled to take into account factual material not in evidence without notice to the parties. The court is not entitled to take judicial notice of particular matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity to controvert or comment on the source in which the inquiry is made. …If, in determining whether the law should be developed in a particular direction, the court has recourse to learned works, it ought to give the parties an opportunity to deal with all matters which the court regards as material. Juries and judges may take into account their observations of the behaviour of witnesses in the well of the court which could not have been made by counsel, but only if they reveal what they have seen to the parties. A court which acts on its understanding of a document in a foreign language without informing the parties commits a breach of the rules of natural justice.

Page 111

157 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009]HCA 49 at [146]

per Heydon J (citations omitted).

3.73 The requirements of procedural fairness are not static; they may be contingent on the circumstances of the hearing.158 So, for example, a court faced with an application for relief made ex parte must decide whether to hear the application in the absence of a party, or whether to require that the absent party be heard.159

158 Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 255 Gaudron JJ; Kioa v West (1985) 159 CLR 550 at 585

per Mason J, 594 per Wilson J, 611–15 per Brennan J, 633

per Deane J; Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 419 (1987) 162 CLR 447 at 456

per Deane, Dawson, Toohey and

per Gibbs J, 451 per Jacobs J; J v Lieschke

per Brennan J (Mason and Dawson JJ agreeing).

Page 34 of 64 Chapter 3 The Right to a Fair Trial 159 This example was given by French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [54]

.

Exceptions — general requirements

3.74 The exceptions fall into three broad groups. The first type concerns situations where the denial of an opportunity to participate is only temporary, and it is followed shortly afterwards by a hearing at which the earlier ex parte (or without notice) decision is reconsidered in the presence of both parties. The second type of exception concerns partial denial of access to evidence or information, where material is withheld from a party but disclosed to the party’s legal representatives or experts. The third type of exception involves a total denial of the opportunity of participation, in the context of non-adversarial proceedings.160

160 Additionally, and apart from the three categories of exceptions which are described in the following text, the rules in each jurisdiction identify the powers of the court in circumstances where one or both parties fail to appear at trial: Federal Court Rules 2011 (Cth) rr 30.21 and 30.22; Court Procedures Rules 2006 (ACT) r 1505; Uniform Civil Procedure Rules 2005 (NSW) r 29.7; Supreme Court Rules (NT) r 49.02; Uniform Civil Procedure Rules 1999 (Qld) r 476; Supreme Court Civil Rules 2006 (SA) r 234; Supreme Court Rules 2000 (Tas) r 570; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.02; Rules of the Supreme Court 1971 (WA) O 34 rr 1, 2 and 3.

Proceedings without notice (ex parte proceedings)

3.75 The most common exception concerns applications without notice, or ex parte proceedings. Suffice to note here that orders without notice are limited to situations of urgency or where disclosure of the application for an order to the opponent would defeat the interests of justice.161 Orders made without notice are of limited duration and are followed by a with notice hearing, at which the earlier ex parte decision is reconsidered in the presence of all affected parties.162 It has been said that the ‘inherent difficulty’ of putting the absent party ‘in the same position as he or she would have been prior to the [ex parte] order being made’ necessitates that ex parte orders are made sparingly.163

Page 112

161 National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405 ; [2009]UKPC 16 at [13] per Lord Hoffmann (delivering the opining of the Board), cited with approval by Heydon J in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [150] 162 Owners of SS Kalibia v Wilson (1910) 11 CLR 689 at 694

per Griffith CJ; International Finance Trust Co Ltd v New

South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [130] 163 BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [134] Handley JA agreeing).

3.76

.

per Hayne, Crennan and Kiefel JJ. per Spigelman CJ (Mason P and

Page 35 of 64 Chapter 3 The Right to a Fair Trial The applicant for an ex parte order is usually required to inform the absent party of the order, and the evidence which supported the application, ‘as soon as reasonably practicable’ after it has been made.164 Without notice proceedings involve safeguards designed to protect the interests of the absent party as much as possible. Accordingly, an applicant for a without notice order is duty bound to make full and frank disclosure of all relevant material, including that which favours the absent party.165 Further, the applicant is normally required to give an undertaking in damages to compensate the absent litigant for any undue harm.166

164 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [40] per Gummow ACJ, Hayne, Crennan and Bell JJ. Their Honours noted that this material may be provided later ‘if there is shown to be some real fear that the effect of an order would be frustrated by notice being given before the order is executed’. 165 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

.

166 As to the principles upon which an ex parte order will be granted, see Chapter 10, 10.80–10.89; as to undertakings as to damages, see 10.63–10.79.

3.77 Examples of urgency include situations where there is no practical opportunity to notify the respondent, as where the applicant seeks to restrain the respondent’s departure from the country when the latter is about to board a flight.Asset freezing orders illustrate the second type of exception, where notice to the respondent is withheld in order to prevent it from defeating the court’s jurisdiction by dissipating its assets.167

167 Freezing orders are discussed at Chapter 10, 10.95–10.138.

Notice limited to legal representatives

3.78 In some situations the interests of justice require the screening of sensitive confidential information from one of the parties. For instance, the disclosure of secret technical information to the opponent in a patent dispute may irredeemably harm the disclosing party’s interests. The dilemma was explained by Hayne JA in the leading case of Mobil Oil Australia Ltd v Guina Developments Pty Ltd 168 in the following terms: Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?

168 [1996] 2 VR 34 at 38

per Hayne JA (Winneke P and Phillips JA agreeing).

Page 36 of 64 Chapter 3 The Right to a Fair Trial

3.79 To avoid this and at the same time enable the opponent to defend its interests, the court may direct that documents containing confidential information, such as

Page 113 trade secrets, should be disclosed only to legal representatives and experts, but not to the opponent itself.169 However, any such limitation on disclosure must not interfere with an opponent’s ability to present its case.170 Orders limiting the disclosure of documents to legal representatives may inhibit the ability of those representatives to seek instructions, for example.171 The specific orders that the court makes ought to balance the interests of the party seeking disclosure of documents and the party seeking to preserve their confidentiality, and must take into account the ‘nature and content’of the documents in question; accordingly, the documents in question ought to be inspected by the judge making the order.172

169 Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39–40

per Hayne JA (Winneke P and

Phillips JA agreeing); Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37 J; Civic Video Pty Ltd v Paterson [2013] WASCA 107 at [26]–[31] 170 Arab Monetary Fund v Hashim [1989] 1 WLR 565 Ltd [2001] FCA 1349

at 577

per White

(per curiam). ; Macquarie Generation v Coal & Allied Industries

per Beaumont J; PhotoCure ASA v Queen’s University at Kingston [2003] FCA 1508 at [23]

. 171 See, for example, Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37 at 40–1 White J. 172 Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39–40

, 43 per

per Hayne JA (Winneke P and

Phillips JA agreeing); see Civic Video Pty Ltd v Paterson [2013] WASCA 107 at [26]–[31]

(per curiam) and

AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 at [10(3)] per Besanko J for further examples of factors which the court will take into account in determining what order to make.

3.80 Beyond this general power, it must be noted that from time to time Australian legislatures have enacted legislation which provides for ‘closed material proceedings’; that is, proceedings in which one party is deprived of access to evidence, and may even be excluded altogether from the court hearing. This sort of legislation is most commonly intended to address circumstances in which the evidence in question concerns matters of national security, or might jeopardise in some way criminal investigations. The approach of Australian courts to legislation of this type, and the implications for the right to a fair trial, are discussed in Chapter 19.173

173 See Chapter 19, 19.43–19.57.

Non-adversarial proceedings

Page 37 of 64 Chapter 3 The Right to a Fair Trial

3.81 An exception to the right of participation may be justified in non-adversarial proceedings. One area in which this principle has been discussed is in proceedings concerning the welfare of children, such as certain proceedings under the Family Law Act 1975 (Cth). Such proceedings are not adversarial, because the court is not called upon to adjudicate a lis between opposing parties; it is only called upon to protect child welfare.174 In such proceedings, the paramount duty of the court is to protect the welfare of children. It is therefore said that the requirements of procedural fairness must give way, where necessary, to the need for the promotion of child welfare.In the

Page 114 leading English case of Official Solicitor to the Supreme Court v K, Ungoed-Thomas J, who was the trial judge, explained the position in the following terms:175 In the ordinary lis between parties, the paramount purpose is that the parties should have their rights according to law, and in such cases the procedure, including the rules of evidence is framed to serve that purpose. However where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose.

This explanation is at odds with the view that principles of procedural fairness are not confined to situations where there is a dispute between two opposing parties, but extend to any public body fulfilling a quasi-judicial function176 and to any body whose decision can affect the rights of a citizen.177 In view of the serious consequence of a denial of procedural justice, it has been held that the rules of procedural fairness are qualified only to the extent that is necessary in order to protect the welfare of the child; that is, to the extent necessary to avoid frustrating the very purpose of the proceedings.178

174 In Scott v Scott [1913] AC 417 at 437 (HL),Viscount Haldane LC said: ‘In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction.’ See M v M (1988) 166 CLR 69 at 76 [2011] VSC 327

(per curiam); PJB v Melbourne Health; Patrick’s Case (2011)39 VR 373;

at [126]–[129] per Bell J.

175 Ungoed-Thomas J’s remarks were quoted with approval by Lord Devlin in the appeal to the House of Lords: Official Solicitor to the Supreme Court v K [1965] AC 201 Reynolds v Kilpatrick (1992) 112 FLR 375 at 382

at 240

; see also at 219 per Lord Evershed; see also

per Finn J; Reynolds v Reynolds (1973) 1 ALR 318

.

176 In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 , Dixon CJ and Webb J stated that ‘it is a deeprooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard’. 177 Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109–10 178 J v Lieschke (1987) 162 CLR 447 at 457

per Barwick CJ.

per Brennan J (Mason and Dawson JJ agreeing); see also Separate

Representative v E (1993) 114 FLR 1 at 13–14

per Nicholson CJ and Fogarty J; see, for example, Minister for

Community Services v Children’s Court (NSW); Re Andrew (2004) 61 NSWLR 283; [2004] NSWSC 842 at [54]–[57] per Wood CJ at CL.

3.82

Page 38 of 64 Chapter 3 The Right to a Fair Trial In child care proceedings, the appeal to the non-adversarial nature of the process, and the paramountcy of the interests of the child, might be invoked in order to withhold information from one or both of the parents of the child in question,or to refuse to adjourn proceedings to enable one or both parents to be heard (for example). However, it is suggested that in the absence of a probing challenge from those most closely involved with the child it is doubtful whether the court could safely arrive at a well-founded decision.179 If information is provided by one parent and denied to the other, or if one or both parents are not heard by the court, there is a risk that the reliability of the information before the court may not be adequately tested. To say that the interests of the child must override the interests of the parents does not dispose of the problem because the risk of error poses a danger not only to the parents but also to the child whose welfare the court seeks to protect. In sum, in the absence of the normal procedural safeguards it is very difficult to determine what is best in the interests of children, the parents or the family as a whole.

Page 115

179 Such risks were referred to in J v Lieschke (1987) 162 CLR 447 at 457 agreeing).

per Brennan J (Mason and Dawson JJ

The right to a reasoned decision

3.83 The judicial duty to provide reasons for court decisions is dictated both by the right to a fair trial and by the principle of publicity.180 Reasons are required in order to render court decisions comprehensible by the parties and acceptable by the public at large, as well as the parties. In the absence of reasons, a litigant is denied the ability to challenge the decision and the appellate court is denied a platform for a meaningful review of the decision given by the lower court. The principle of publicity requires that court proceedings should be held in public, so that justice may not only be done but also be seen to be done.181

180 For discussion, see D L Shapiro, ‘In Defence of Judicial Candor’ (1987) 100 Harvard Law Review 731; Sir Frank Kitto, ‘Why Write Judgments’ (1992) 66 Australian Law Journal 787 at 789–90; as to the relationship to the open court principle, see Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [58]

per French CJ and Kiefel J.

181 For a discussion of the principle of publicity, see generally 3.46–3.67 above.

3.84 The duty of a court to provide reasons is an aspect of the judicial process.182 This is because adjudicating a dispute judicially entails the application of established rules to the facts of the case: ‘without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision’.183 Although reasons for judgment are obviously of particular importance when there is a right to appeal, the duty is not limited to appealable decisions.184

182 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 (2011) 243 CLR 181; [2011] HCA 24 at [54]–[55]

per Kirby P; Wainohu v New South Wales

per French CJ and Kiefel J.

Page 39 of 64 Chapter 3 The Right to a Fair Trial 183 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278–9 of New South Wales v Osmond (1986) 159 CLR 656 at 675

per McHugh JA; cf Public Service Board

per Deane J.

184 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278,280 Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]–[55]

per Mahoney JA;

per McHugh JA; Wainohu v New South

per French CJ and Kiefel J.

3.85 The duty to give reasons has been said to be driven by several distinct policies.185 Three of those were identified by McHugh JA in the leading case of Soulemezis v Dudley (Holdings) Pty Ltd.186 First, the giving of reasons ‘enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision’. Reasons for judgment therefore ‘[provide]the foundation for the acceptability of the decision by the parties and by the public’.187 Secondly, it promotes

Page 116 judicial accountability.188 Thirdly, reasons generate rules for future cases.189 Indeed, in a legal system which relies on the binding force of precedents, reasoned judgments are essential. Beyond those purposes, the obligation to give reasons has been said to have a tendency to improve the quality of decision-making,by obliging the decisionmaker to explain their conclusion in the knowledge that the explanation will be scrutinised.190 Reasons have also been said to serve an ‘educative’ purpose for other judges, the government, the legal profession, and the community at large.191

185 See also the discussion of F Schauer, ‘Giving Reasons’ (1995) 47 Stanford Law Review 633; see also AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] was identified.

per Heydon J, where a slightly different set of policy objectives

186 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279

per McHugh JA.

187 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Dudley (Holdings) Pty Ltd (1987)10 NSWLR 247 at 259 (1997) 48 NSWLR 430 at 442

per McHugh JA. See also Soulemezis v

per Kirby P; Beale v Government Insurance Office of NSW

per Meagher JA; Sir Frank Kitto, ‘Why Write Judgments’(1992) 66 Australian Law

Journal 787 at 790; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] 188 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 (2008) 232 CLR 438; [2008] HCA 8 at [89] Harvard Law Review 731 at 737.

per Heydon J.

per McHugh JA. See also Beale v per Meagher JA; AK v Western Australia

per Heydon J; D L Shapiro, ‘In Defence of Judicial Candor’ (1987) 100

189 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54] per French CJ and Kiefel J, citing Broom’s Constitutional Law, Maxwell, London, 1866; although compare Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273

, where Mahoney JA described this function of reasons as ‘peripheral and not essential’.

190 AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] Write Judgments’ (1992) 66 Australian Law Journal 787 at 790.

per Heydon J; see also Sir Frank Kitto, ‘Why

191 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442

3.86

per Meagher JA.

Page 40 of 64 Chapter 3 The Right to a Fair Trial It is not always possible, or even desirable, to spell out exactly what led the court to arrive at each and every inference or finding or to elaborate the court’s response to each and every point raised by the parties. A measure of reasonableness and proportionality needs to be taken in this regard in order to avoid unnecessary expenditure of time and money by the court and the parties.192 Whether and to what extent reasons are required will depend on ‘the importance of the point involved and its likely effect on the outcome of the case’.193 Both the ‘content and detail’ required in the reasons will be contingent on the nature of the decision.194

192 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Insurance Office of NSW (1997) 48 NSWLR 430 at 444 Wales v Osmond (1986) 159 CLR 656 at 668

per McHugh JA; Beale v Government

per Meagher JA; cf Public Service Board of New South

per Gibbs CJ (Wilson, Brennan and Dawson JJ agreeing).

193 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 194 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [57]

per McHugh JA. per French CJ and Kiefel J.

3.87 Thus, not all judicial decisions require reasons.195 Reasons are unlikely to be required for routine interlocutory rulings, or rulings on the admissibility of evidence.196 On the other hand, full reasons must be given for ‘what is in fact or substance a final order’.197

195 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666–7 and Dawson JJ agreeing). 196 Suburban Properties Ltd v Swycher [1976] Ch 319 (1987) 10 NSWLR 247 at 260

at 325

,326

per Gibbs CJ (Wilson, Brennan

; Soulemezis v Dudley (Holdings) Pty Ltd

per Kirby P, 279 per McHugh JA.

197 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279

per McHugh JA.

3.88 Reasons need not be exhaustive; rather, it is necessary for the judge to identify the critical points which ground the decision.198 Where there is a right of appeal, the reasons must be sufficiently detailed to enable the decision to be examined on

Page 117 appeal.199 It is not necessary for the judge to identify each and every factual finding leading to the decision, nor to reason incrementally to that decision.200 In Beale v Government Insurance Office of NSW ,201 Meagher JA explained that there were ‘three fundamental elements of a statement of reasons’:202 First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. …

Page 41 of 64 Chapter 3 The Right to a Fair Trial where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance. Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferrably [sic] logical as well.

198 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259

per Kirby P, 280 per McHugh JA.

199 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269

per Mahoney JA.

200 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271

per Mahoney JA.

201 (1997) 48 NSWLR 430

per Mahoney JA;

.

202 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443–4 omitted).

per Meagher JA (citations

3.89 In cases involving a conflict of expert evidence a court has to provide an explanation why it accepted the evidence of one expert and rejected that of another. To this end, it may have to engage in the intellectual differences between the experts and set out the analysis that led to the acceptance of one view rather than another.203

203 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377

(CA) at 381–2 per Henry LJ (delivering the judgment of

the court); English v Emery Richmond & Strick Ltd [2002] 1 WLR 2409 ; [2002] EWCA Civ 605 at [19]–[21] per Lord Phillips MR (delivering the judgment of the court); Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346; [2007] VSCA 255 at [55]

(per curiam).

3.90 The extent to which the court must account for the reasons for its decisions depends, as already noted, on the nature of the proceedings and the issues. By their very nature, applications for permission to appeal involve a different type of decision-making process than a decision on the merits (not least because the right to a fair trial does not guarantee a right to appeal).204 Further, where leave is sought from a

Page 118 judicial (rather than administrative) decision, there is less need for extensive reasons for refusing leave to appeal, because the proceedings have already been the subject of judicial consideration and a reasoned judgment.205 The nature and extent of the reasons that need to be provided for such decisions is therefore more limited. Indeed, it

Page 42 of 64 Chapter 3 The Right to a Fair Trial has been said that the power to refuse leave to appeal ‘can commonly be exercised without the provision of detailed or, sometimes, any reasons’.206 But a majority of the High Court has more recently observed that it would be exceptional to give no reasons for refusing leave to appeal.207

204 See Chapter 25, 25.63–25.69 concerning permission to appeal. See also Coulter v R (1988) 164 CLR 350 at 356,357 per Mason CJ, Wilson and Brennan JJ for the proposition that an application for leave to appeal ‘is not in the ordinary course of litigation’, and that this has implications for the procedural fairness requirements. 205 The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49 at [25] Gummow, Hayne and Callinan JJ. 206 Coulter v R (1988) 164 CLR 350 at 359–60

per Gaudron,

per Deane and Gaudron JJ.

207 The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49 at [25] Gummow, Hayne and Callinan JJ.

per Gaudron,

3.91 Determining the extent of reasons required in a costs decision entails balancing two competing policy imperatives. On the one hand, they are original decisions capable of imposing a substantial financial burden. On the other hand, however,they are consequential decisions following decisions on the merits and it is important that the court should be able to dispose of costs applications in a straightforward and expeditious manner without unnecessarily adding to the complexity of the process and its cost. The extent of reasons will depend on the nature of the decision that has been made as to costs. Thus, reasons ‘may often be very brief, especially where little can be said against the usual order in the circumstances’, and may not be required at all where the costs order is ‘unexceptional’.208 But more extensive reasons may be required. For example, in Di Benedetto v Kilton Grange Pty Ltd, the trial judge erred in failing to make the findings that were required to depart from the usual order which would have been made in the circumstances of the case.209

208 Di Benedetto (in his personal capacity and as executor and trustee of will and estate of Di Benedetto) v Kilton Grange Pty Ltd [2017] VSCA 119 at [94]

(per curiam).

209 Di Benedetto (in his personal capacity and as executor and trustee of will and estate of Di Benedetto) v Kilton Grange Pty Ltd [2017] VSCA 119 at [74]–[75]

(per curiam).

3.92 Where reasons are inadequate, it does not necessarily follow that there has been an appealable error. A court hearing an appeal will intervene only where:210 … it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice.

Failure to give reasons when they are required amounts to an error of law.211 Failure to provide a reasoned judgment is a sufficient ground for setting aside a judgment, and may even justify ordering a rehearing.212 But it must be remembered that setting aside

Page 119

Page 43 of 64 Chapter 3 The Right to a Fair Trial a decision for lack of reasons may amount to visiting the court’s sins on the successful party, who may well have succeeded in establishing its case by persuasive facts and convincing arguments. It would not be fair to the respondent if the appeal court were to overturn a decision for lack of reasons where the reasons could be inferred from the circumstances. Accordingly, the appeal court may consider the matter for itself: if the decision of the first instance judge is the only available decision, then there need be no retrial, despite the inadequacy of reasons.213

210 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444

per Meagher JA (citations omitted).

211 Pettit v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA, 388 per Moffitt JA; Jung v Son [1998] NSWCA 120 per Stein JA (Handley and Meagher JJA agreeing). 212 See, for example, Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2002) 6 VR 1; [2002] VSCA 189 at [40],[172] , where the Court of Appeal observed that the ‘resolution of significant areas of dispute between the parties depends on findings of credibility and reliability of witnesses’, and consequently ordered a retrial. In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 383 per Henry LJ (delivering the judgment of the court), the English Court of Appeal indicated that in order to remedy the failure the appellate court will need to pursue the most appropriate of the following options: requiring the judge below to spell out his reasons (if they are still fresh in his mind), exercise its own judgment on the issue (if sufficient materials exist on the record), or order a new trial. 213 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444

per Meagher JA.

The right of access to evidence

3.93 Access to court might not enable citizens to obtain adequate protection for their rights, unless the courts are prepared to assist them to secure the evidence they need in order to establish their rights. Accordingly, all modern systems provide some compulsory measures to help litigants to secure relevant evidence. The right of access to evidence is of particular importance in an adversary system, such as in Australia, where it is up to litigants to identify relevant evidence and present it to the court.

3.94 A system that left witnesses free to refuse to testify and allowed litigants to withhold relevant documents from their opponents would fail to provide citizens with an effective and meaningful procedure for vindicating their rights. Further,such a system would have the potential to cause unfairness as between the parties to court proceedings, for parties in possession of records and other documents would have a distinct procedural advantage over opponents who lack documentary evidence.Unless both parties have an equal opportunity to learn each other’s case, the process cannot be said to be conducted on an equal footing. Litigants have therefore extensive rights to seek court assistance to compel production of evidence relevant to the issues in the case.214

214 Conway v Rimmer [1968] AC 910

at 955

per Lord Morris, 992 per Lord Upjohn; D v National Society for the

Prevention of Cruelty to Children [1978] AC 171 at 218 per Lord Diplock, 225 per Lord Hailsham (Lord Kilbrandon agreeing), 242, 246 per Lord Edmund-Davies; Sankey v Whitlam (1978) 142 CLR at 38–9 per Gibbs ACJ, 49 per Stephen J, 95–6 per Mason J.

Page 44 of 64 Chapter 3 The Right to a Fair Trial

3.95 Like English law, Australian law provides more comprehensive facilities of access to evidence than, for example, the legal systems of continental Europe.215 Unlike some of the continental systems, it has not developed a distinction between procedural truth and real truth. Systems which use the concept of procedural truth are prepared to allow

Page 120 a judicial finding to stand, notwithstanding that it is at variance with the real facts, provided that it was reached by procedurally correct means. Australian and English law, by contrast, are reluctant to accommodate judicial findings of fact that are known to be factually incorrect or that are known to be founded on incomplete evidence. There is therefore a general presumption that all relevant evidence is admissible and should be accessible; or, as Thayer explained, ‘unless excluded by some rule or principle of law, all that is logically probative is admissible’.216 The High Court has accepted that there is a ‘public interest … which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available’,217 although there are limited circumstances in which this may be overridden by a greater public interest, as we shall see in later chapters.218

215 P F Schlosser, ‘Trial and Court Procedures in Continental Europe’ in C Platto (ed), Trial and Court Procedures Worldwide, Lord Chancellor’s Advisory Board on Family Law, London, 1991; W Habscheid and S Berti, ‘European Summary’ in C Platto (ed), Pre-Trial and Pre-Hearing Procedures Worldwide, Graham & Trotman and International Bar Association, London, 1990. See also K Kusano and H Tezuka, ‘Japan’in C Platto (ed), Pre-Trial and Pre-Hearing Procedures Worldwide, Graham & Trotman and International Bar Association, London, 1990. 216 J B Thayer, A Preliminary Treatise on Evidence at the Common Law, Little, Brown, Boston, 1898, p 265; a differently worded formulation of this rule was quoted with approval in Smith v R (2001) 206 CLR 650; [2001] HCA 50 at [6] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 217 Grant v Downs (1976) 135 CLR 674 at 685 Commonwealth (1987) 163 CLR 54 at 64–5 (1988) 165 CLR 346 at 354 183 CLR 121 at 126,128 161, 163 per McHugh J.

per Stephen, Mason and Murphy JJ; see also Waterford v per Mason CJ and Wilson J; John Fairfax & Sons Ltd v Cojuangco

(per curiam); Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) per Brennan J, 134 per Deane J, 144 per Toohey J (Gaudron J agreeing (in dissent)),

218 The principal exceptions are legal professional privilege and public interest immunity: see Chapters 16 and 19 respectively.

3.96 Short of bias and corruption, nothing is more calculated to erode public confidence in the administration of justice than the perception that in arriving at their decision judges have ignored pertinent evidence. For this reason, litigants have far-reaching rights, arising from the rules and the inherent jurisdiction of the court, to obtain relevant evidence from opponents and from non-parties. For example, parties to civil proceedings come under an obligation to disclose all relevant documents even if they tend to undermine their own case. Non-parties may be required to disclose documents to parties or the court, and disclosure may even be ordered before proceedings have been commenced. In order to preserve and secure evidence, Australian courts may also make a search order (also known as an Anton Piller order),219 the effect of which is to require the subject of the order to permit the applicant to enter its premises to search for documents and evidence which might otherwise be destroyed.220

219 After Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 (CA)

.

Page 45 of 64 Chapter 3 The Right to a Fair Trial 220 Search orders and Anton Piller orders are discussed in Chapter 15, 15.232–15.275.

3.97 The impression is sometimes given that the common law adversarial trial process is not concerned with the completeness of evidence, and that the court’s only duty is to reach a verdict on the basis of such evidence that has been presented.221 However, this is a misleading impression since, as we observed in Chapter 1, Australian law is committed to striving for correct outcomes in litigation.The commitment of Australian law to assisting litigants to discover and obtain relevant evidence is demonstrated by the variety of devices it places at the service of litigants for the purpose of gaining

Page 121 access to evidence. Processes such as disclosure and search orders will be discussed in detail later.222 For the present it is enough to provide an outline of the measures available for compelling and encouraging testimonial evidence.

221 For example, in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 , Mason J stated that ‘one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides’ (emphasis added). 222 See generally Chapter 15.

Compulsory testimonial obligations

3.98 At the request of a party the court may issue a subpoena requiring a person to attend court to give evidence or to produce documents to the court.223 Disobedience of a subpoena amounts to contempt of court and is punishable as such.224

223 See Chapter 15, 15.148–15.172. 224 See Chapter 15, 15.172.

3.99 Persons cannot excuse themselves from the duty to testify or produce documents by saying that they are otherwise engaged, or that they are under a contractual duty not to divulge information, or that the information is confidential or private.225 The duty to comply with a witness summons overrides all such excuses.226 A contract by which a witness binds him or herself not to give evidence before the court on a matter on which the judge could require them to testify is contrary to public policy and unenforceable.227 Generally, rights of confidentiality must give way to the interests of the administration of justice in the disclosure of all relevant information needed for the fair disposal of litigation.228

Page 46 of 64 Chapter 3 The Right to a Fair Trial 225 Parry-Jones v Law Society [1969] 1 Ch 1

at 9

Resources Ltd v Plowman (1995) 183 CLR 10 at 35

per Diplock LJ (Salmon LJ agreeing); Esso Australia per Brennan J.

226 Bentham wrote: ‘Are men of first rank and consideration — are men high in office — men whose time is no less valuable to the public than to themselves — are such men to be forced to quit their business, their functions,and what is more than all, their pleasure, to the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody … Were the Prince of Wales, the Archbishop of Canterbury,and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrowwoman were in dispute about a halfpenny worth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly’: J Bowring (ed), Collected Works of Jeremy Bentham (1838–1843) Vol 4, William Tait, Edinburgh, pp 320–1. 227 Harmony Shipping Co SA v Davies [1979] 3 All ER 177; [1979] 1 WLR 1380 tutor Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 at [71]

(CA)

; Richards v Kadian by his

per Beazley JA (Stein AJA agreeing).

228 See generally Richards v Kadian by his tutor Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328

.

The obligation to testify truthfully

3.100 Witnesses are duty bound to tell the truth. Giving false testimony on oath amounts to perjury, which is a serious criminal offence in all jurisdictions, although the elements of the crime vary between jurisdictions.229 Beyond perjury, legislation in

Page 122 each jurisdiction defines various other crimes involving falsification or concealment of evidence, or other conduct which may hinder the proper administration of justice.230

229 Crimes Act 1914 (Cth) s 35; Criminal Code 2002 (ACT) ss 703 (perjury) and 704, cf s 702 (aggravated perjury); Crimes Act 1900 (NSW) s 327 (perjury), and cf s 330 (false statement on oath) and s 331(contradictory statements on oath); Criminal Code (NT) s 96 (perjury), and cf ss 118 and 119; Criminal Code (Qld) s 123 and cf s 123A (perjury — contradictory statements); Criminal Law Consolidation Act 1935 (SA) s 242; Criminal Code (Tas) s 94, and cf s 95 (false swearing); Crimes Act 1958 (Vic) s 314; Criminal Code (WA) s 124. 230 See, for example, Crimes Act 1914 (Cth) Pt III (Offences relating to the administration of justice) Divs 1–4; Criminal Code 2002 (ACT) Div 7.2.2 (Falsifying, destroying or concealing evidence) and Div 7.2.3 (Protection of people involved in legal proceedings); Crimes Act 1900 (NSW) Pt 7 (Public justice offences); Criminal Code (NT) Pt 4 Div 5 (Offences relating to the administration of justice); Criminal Code (Qld) Ch 16 (Offences relating to the administration of justice); Criminal Law Consolidation Act 1935 (SA) Pt 7 Div 3 (Offences relating to judicial proceedings); Criminal Code (Tas) Pt III Ch X (Crimes relating to the administration of justice); Crimes Act 1958 (Vic) Pt 1 Div 5 (Destruction of evidence); Criminal Code (WA) Pt III Ch XVI (Offences relating to the administration of justice).

Witness immunity in respect of statements made in court

3.101 To encourage witnesses to come forward and tell the truth, the law grants them complete immunity from action in respect of anything they say in court proceedings.231 The rationale of the rule was explained by Salmon J in Marrinan v Vibart:232 It has been well settled law for generations — certainly since Lord Mansfield’s time — that witnesses enjoy absolute immunity from actions being brought against them in respect of any evidence they may give in a court of justice. This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently

Page 47 of 64 Chapter 3 The Right to a Fair Trial involve them in costly litigation.

231 Munster v Lamb (1883) 11 QBD 588

; [1881–5] All ER Rep 791

M’Ewan; Watson v Jones [1905] AC 480 (1940) 64 CLR 130

at 486

, respectively at 607 and at 797; Watson v

(HL); Gibbons v Duffell (1932) 47 CLR 520

; Marrinan v Vibart [1963] 1 QB 234

; [1962] 1 All ER 869

Appeal: [1963] 1 QB 528; [1962] 3 All ER 380); Mann v O’Neill (1997) 191 CLR 204 Legal Aid (2005)223 CLR 1; [2005] HCA 12 232 Marrinan v Vibart [1963] 1 QB 234

at 237

; Cabassi v Vila

(upheld by the Court of ; D’Orta-Ekenaike v Victoria

. ; [1962] 1 All ER 869 at 869

(upheld by the Court of Appeal: [1963]

1 QB 528; [1962] 3 All ER 380); the judgment was cited with approval in Mann v O’Neill (1997) 191 CLR 204 at 211 per Brennan CJ, Dawson, Toohey and Gaudron JJ.

3.102 Originally, absolute privilege from suit was accorded only to witnesses who testified in legal proceedings, but the rule was extended to statements made in connection to legal proceedings by potential witnesses in advance of the trial.233 Lord Hoffmann explained in Taylor v Director of the Serious Fraud Office that the purpose of witness immunity was to encourage freedom of speech:234 The immunity from suit … is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use

Page 123 for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement.

The immunity conferred on witnesses extends beyond actions of defamation. It has been held, for instance, that an expert was immune from an action for damages said to be caused by false and misleading statements concerning the composition of a drug.235 Further, witnesses who conspire to give false evidence are immune from a civil action for conspiracy.236

233 Watson v M’Ewan; Watson v Jones [1905] AC 480

; Gibbons v Duffell (1932) 47 CLR 520 at 525

per Gavan

Duffy CJ, Rich and Dixon JJ; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [39] Gleeson CJ, Gummow, Hayne and Heydon JJ. 234 Taylor v Director of Serious Fraud Office [1999] 2 AC 177

at 208

; [1998] 4 All ER 801 at 808

per

(HL); see also

Arthur J S Hall & Co (A Firm) v Simons [2002] 1 AC 615 at 679 per Lord Steyn, 697 per Lord Hoffmann. That witness immunity serves to encourage freedom of speech was confirmed by the High Court in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [41]

per Gleeson CJ, Gummow, Hayne and Heydon JJ.

Page 48 of 64 Chapter 3 The Right to a Fair Trial 235 Commonwealth v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 236 Cabassi v Vila (1940) 64 CLR 130

.

.

3.103 However, there is no immunity from civil actions for malicious prosecution where the cause of action consists in abusing the legal process by maliciously and without reasonable excuse setting the law in motion against the defendant.237 Of course, a witness who gives false evidence may also be the subject of criminal proceedings for perjury or contempt of court, and potentially also for perverting the course of justice.238 These are exceptions to the general rule that witnesses are immune from both civil and criminal proceedings.

237 R v Beydoun (1990) 22 NSWLR 256 at 260

per Hunt J (Wood and McInerney JJ agreeing) (disapproved by the

High Court in Jamieson, but on different grounds); see also Jamieson v R (1993) 177 CLR 574 at 590 and McHugh JJ (in dissent), 595 per Gaudron J. 238 Jamieson v R (1993) 177 CLR 574 at 582 NSWLR 268; [2007] NSWCA 370 at [46]

per Toohey

per Deane and Dawson JJ; Commonwealth v Griffiths (2007) 70 per Beazley JA (Mason P and Young CJ in Eq agreeing).

3.104 The principle of witness immunity from civil or criminal proceedings attaches not only to statements made in the course of judicial or quasi-judicial proceedings, but also to statements made or conduct engaged in out of court. However, immunity will arise only where the statement or conduct was ‘sufficiently connected’ with the proceedings.239 For example, the immunity extends to acts and statements which are preparatory to giving evidence, such as the conduct of experiments by an expert witness which are for the purpose of their evidence.240 It does not necessarily extend to statements made to investigating authorities.241

239 Commonwealth v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 at [42] Young CJ in Eq agreeing).

per Beazley JA (Mason P and

240 Commonwealth v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 at [54][94] Young CJ in Eq agreeing).

per Beazley JA (Mason P and

241 Mann v O’Neill (1997) 191 CLR 204 at 215

per Brennan CJ, Dawson, Toohey and Gaudron JJ.

3.105 The privilege extends beyond witnesses to other participants in the curial process, and applies beyond courts in the strict sense. In the leading case of Mann v O’Neill, the High Court confirmed that:242 It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to

Page 49 of 64 Chapter 3 The Right to a Fair Trial statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’.

Page 124 It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is ‘whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern’. The privilege extends to members of tribunals and to ‘advocates, litigants, and witnesses’. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

There are two reasons for this broad proposition. First, the rule serves ‘to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences’.243 Secondly, it also reflects the policy of the finality of litigation,244 in that it avoids ‘the re-agitation by discontented parties of decided cases after the entry of final judgment’.245 Thus, the broad immunity offered to all participants in judicial proceedings has been described as ‘indispensable to the effective performance’ of the judicial process.246

242 Mann v O’Neill (1997) 191 CLR 204 at 211–12

per Brennan CJ, Dawson, Toohey and Gaudron JJ.

243 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [42] and Heydon JJ, citing Mann v O’Neill (1997) 191 CLR 204 at 239 177 CLR 574 at 590

per Gleeson CJ, Gummow, Hayne

per Gummow J; see also Jamieson v R (1993)

per Toohey and McHugh JJ.

244 As to which, see generally Chapter 26. 245 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [42] and Heydon JJ, citing Mann v O’Neill (1997) 191 CLR 204 at 239 130 at 139

per Gummow J; Cabassi v Vila (1940) 64 CLR

per Rich ACJ; see also Jamieson v R (1993) 177 CLR 574 at 590

246 Gibbons v Duffell (1932) 47 CLR 520 at 528 CLR 204 at 213

per Gleeson CJ, Gummow, Hayne

per Toohey and McHugh JJ.

per Gavan Duffy CJ, Rich and Dixon JJ; Mann v O’Neill (1997) 191

per Brennan CJ, Dawson, Toohey and Gaudron JJ; D’Orta-Ekenaike vVictoria Legal Aid (2005)

223 CLR 1; [2005] HCA 12 at [42]

per Gleeson CJ, Gummow, Hayne and Heydon JJ.

3.106 In each jurisdiction, the Defamation Act or its equivalent makes provision for the defence of absolute privilege in the context of defamation proceedings. The defences under the Act are additional to those available at common law (and under other Acts), and do not modify common law principles.247 Specifically, the legislation provides that a defence exists to the publication of defamatory material ‘if the defendant proves that it was published on an occasion of absolute privilege’. Relevantly for present purposes, material is published on such an occasion if:248 (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i)

the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii) the publication of matter while giving evidence before the court or tribunal, and

Page 50 of 64 Chapter 3 The Right to a Fair Trial (iii) the publication of matter in any judgment, order or other determination of the court or tribunal …

Page 125

247 Civil Law (Wrongs) Act 2002 (ACT) s 134; Defamation Act 2005 (NSW) s 24; Defamation Act 2006 (NT) s 21; Defamation Act 2005 (Qld) s 24; Defamation Act 2005 (SA) s 22; Defamation Act 2005 (Tas) s 24; Defamation Act 2005 (Vic) s 24; Defamation Act 2005 (WA) s 24. 248 Civil Law (Wrongs) Act 2002 (ACT) s 137(2); Defamation Act 2005 (NSW) s 27(2); Defamation Act 2006 (NT) s 24(2); Defamation Act 2005 (Qld) s 27(2); Defamation Act 2005 (SA) s 25(2); Defamation Act 2005 (Tas) s 27(2); Defamation Act 2005 (Vic) s 27(2); Defamation Act 2005 (WA) s 27(2).

Exceptions

3.107 There are exceptions to the right of access to evidence, which include legal professional privilege, the privilege against self-incrimination and public interest immunity.249 But these exceptions are narrowly defined and only go to underscore the importance of the general principle.

249 See generally Chapter 16, Chapter 18 and Chapter 19.

3.108 One notable legislative exception is that made for journalist privilege. At common law, journalists were generally required to disclose their confidential sources to the court, and to answer questions concerning confidential sources, if it became relevant in court proceedings. A journalist who refused to do so could be found guilty of contempt of court. There were, however, two limited exceptions. In interlocutory proceedings, such as applications for disclosure, there was a general practice that the court would not order the identity of a confidential source to be revealed; this is known as the ‘newspaper rule’.250 Secondly, during the course of trial, the court had a discretion not to require journalists to answer questions which would reveal the identity of a confidential source.251

250 See John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 [121]–[125]

; Liu v Age Company Ltd [2016] NSWCA 115 at

per McColl JA.

251 The state of the law is summarised in A Twomey, Law and Policy of Protecting Journalists Sources, Background Paper (Law and Government Group) Vol 15/1992, 12 August 1992, available online at , which also identifies the leading authorities in the area and particular cases which had been controversial.

3.109 This area of law has been controversial, and the subject of various law reform proposals and bills.252 In some jurisdictions, there are now legislative provisions concerning the protection of the identity of sources. For example, s 126K of the Commonwealth Evidence Act (1995) provides:253

Page 51 of 64 Chapter 3 The Right to a Fair Trial

126K Journalist privilege relating to identity of informant (1)

If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

(2)

The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

Page 126  

(a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit. Again, it must be emphasised that this is a very limited protection. It serves to protect only the identity of the confidential source, and not, for example, any of the information revealed by that source. Further, the protection will not apply if the court considers that the interest in disclosing the evidence in question is predominant.

252 See A Twomey, Law and Policy of Protecting Journalists Sources, Background Paper (Law and Government Group) Vol 15/1992, 12 August 1992, available online at , for a summary of law reform proposals to that date; see also K Magarey, Evidence Amendment (Journalists’ Privilege) Bill 2007 (8 June 2007)Bills Digest No 172, 2006–07, for a background to the controversies and competing policy objectives which led to the 2007 amendments to the Evidence Act 1995 (Cth); M A Nielsen and K Magarey, Evidence Amendment (Journalists’ Privilege) Bill 2009 (11 May 2009) Bills Digest No 130, 2008–09; K Magarey, Evidence Amendment (Journalists’Privilege) Bill 2010 (No 2) & Evidence Amendment (Journalists’ Privilege) Bill 2010 (11 November 2010) Bills Digest Nos 38–39, 2010–11. 253 See also Evidence Act 2011 (ACT) s 126K; Evidence Act 1995 (NSW) s 126K; Evidence Act 2008 (Vic) s 126K; cf Evidence Act 1906 (WA) ss 20G–20M.

The right of access to justice The general principle

3.110 Absent a reasonable opportunity to seek court adjudication, few rights that citizens possess would be of practical value. Therefore, it may be said that the right of access to court merely spells out what is already contained in any substantive right, because the very existence of a right entails the availability of some facility to protect or enforce the right. Put differently, without a right of access to court one may question the very existence of rights.254 Access to justice is a principle of long standing. Chapter 40 of the Magna Carta 1215 stated: ‘To no one will we sell, to no one will we deny or defer [delay] right or justice.’ In Australia, the importance of the court as an arm of government is reflected in the protections conferred by Ch III of the Australian Constitution.255 In a passage which has been cited with approval by members of the Australian High Court, Lord Diplock explained the principle in the following terms:256

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Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.

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254 See, for example, T Bingham, The Rule of Law, Penguin, London, 2011, p 83; J Raz, The Authority of Law: Essays on Law and Morality, Clarendon Press, Oxford, 1979, p 217;Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 72 Australian Law Journal 33 at 33–4. 255 See, for example, S Rares, ‘Is Access to Justice a Right or a Service’ (2015) 89 Australian Law Journal 777 at 777, 779; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [32] Hayne and Heydon JJ.

per Gleeson CJ, Gummow,

256 Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 , cited with approval in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 602 at [55] per Gummow J; Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 at [444] 1

per Heydon J. See also Raymond v Honey [1983] 1 AC

(HL) at 13; R v Secretary of State for the Home Department; Ex parte Leech (No 2) [1994] QB 198

Lord Chancellor;Ex parte Witham [1998] QB 575

;Rv

.

3.111 The right of access to justice finds expression in a variety of principles. For example, where legislation purports to restrict access to courts, it is presumed that parliament ‘does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies’.257 Another example is the approach of the court to vexatious litigants: even where a person has engaged in repeated vexatious litigation, the court will be slow to exercise its powers to restrain them from future litigation because of the fundamental importance of access to justice.258 A further example may be seen in the context of applications for security for costs.259 Where a plaintiff who is a natural person is impecunious, the court will not award security for costs in favour of the defendant (save in certain very limited circumstances) because of the importance of ensuring that the plaintiff has access to the court, even though the consequence is that the defendant must accept the risk that its costs will not be paid in the event it successfully defends the claim.260

257 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [72] Kirby and Hayne JJ.

per Gaudron, McHugh, Gummow,

258 Kowalski v MMAL Staff Superannuation Fund Pty Ltd ACN 064 829 616 (2007) 242 ALR 370; [2007]FCA 1069 at [44] per Finn J; for further discussion of the court’s powers concerning vexatious litigants, see 3.117–3.122 below. 259 For further discussion of security for costs, see Chapter 10, 10.139–10.174. 260 Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 at 530 per Connolly J; Lee v Abedian [2017] QSC 22 at [36]–[37] per Applegarth J. Different considerations apply where the plaintiff is a corporate entity.

Waiver

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3.112 Since the right of access to court is part and parcel of any substantive right, it follows that just as one can waive one’s substantive rights so one may waive the right of access to court. But a distinction must be drawn between waiver after a dispute has arisen and waiver in advance of a dispute.

3.113 Waiver after a dispute has arisen raises few difficulties, for parties are free to choose whether to litigate or not and therefore are free to decide to forgo litigation altogether. Indeed, litigants are encouraged to seek alternative methods of settling their disputes. In all Australian jurisdictions, courts have power to refer proceedings to an alternative dispute resolution process, even where the parties do not consent.261 In some jurisdictions, the rules encourage litigants to resolve their dispute, or particular issues, by requiring litigants to take certain steps (such as exchanging information about the dispute) before commencing litigation.262 Similarly, litigants may agree to confine their disputes to particular issues only, and this may be thought of as an exercise of the right to choose whether or not to litigate. Notwithstanding the encouragement given to disputants to stay away from the courts, the overriding principle of access to justice remains undiminished. This is because the civil court remains the final arbiter

Page 128 in civil disputes. Whether a dispute goes to arbitration, mediation or conciliation,the parties remain free to invoke the courts’ jurisdiction as a last resort.263

261 See Chapter 29, 29.51–29.61 as to court-annexed alternative dispute resolution. 262 See Chapter 4, 4.9–4.32. 263 See BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551 at [29]–[35] as to the right of access to the court in circumstances where the parties have an arbitration agreement.

3.114 Waiver of access in advance of a dispute is, however, a more problematic issue. Complete waiver of access to court negates the existence of any right and is, therefore, inconsistent with the right to which it applies. The question that arises in such situations is this: if the parties intended that there should be a right, or assumed its existence, how could they also have agreed that the owner of the right should have no recourse to court and no means of enforcing the right? For this reason,Australian law is wary of contracts to waive access to court. A contract purporting to oust the jurisdiction of the court is considered to be contrary to public policy and therefore void.264 The reason for this rule is clear. Since by entering into a contract the parties must have intended to create some rights, the court cannot give effect to a complete waiver of access to court, which would inevitably negate the existence of the contract and the very rights that the contract brought into existence.

264 Dobbs v The National Bank of Australasia Ltd (1935) 53 CLR 643 at 652–3 JJ; Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 437–8 Windeyer J (in dissent), 479 per Owen J.

per Rich, Dixon, Evatt and McTiernan per Kitto J, 440 per Taylor J, 452–3 per

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3.115 Arbitration is a well-established mode of non-court resolution,265 which offers considerable advantages such as flexibility, privacy and freedom to choose the tribunal, the venue and the timing of the proceedings.266 Although arbitration agreements restrict access to court, they are not incompatible with the right of access to justice, because an arbitration agreement cannot prevent the court from determining that the agreement is inoperable.267 Nor can it oust the jurisdiction of the court in the absence of legislation to the contrary.268 In the context of commercial arbitrations, the court has a limited role in facilitating arbitrations, but is required to recognise and enforce arbitral awards on the application of the parties unless one of the grounds for refusal is made out.269

265 A number of international bodies promote standardised rules and offer arbitration services. The International Chamber of Commerce, for example, has established a Court of Arbitration in Paris. The most important of these is the United Nations Commission in International Trade Law – UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules. 266 The jurisdiction of the arbitration tribunal depends on the parties’ agreement and almost any dispute may be referred to arbitration. See generally Chapter 29, 29.25–29.28, 29.33–29.38 and 29.42–29.44. 267 See, in the context of commercial arbitrations, s 8 of the Commercial Arbitration Acts, and Chapter 29, 29.38. 268 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 at [76]

per Hayne, Crennan, Kiefel and Bell JJ.

269 See Chapter 29, 29.47–29.50; see generally TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5

.

3.116 The right of access to court does not prevent parties to a contract from agreeing on matters of jurisdiction. Persons may agree in advance of any dispute that the court of a particular country will have jurisdiction to deal with any controversy arising out of

Page 129 a particular transaction or that the law of a particular jurisdiction shall apply to their transaction.270 It has been said that an exclusive jurisdiction clause does not oust the jurisdiction of the court, but instead provides a reason for the court not to exercise its jurisdiction, in favour of the foreign jurisdiction.271 But an agreement on jurisdiction which has the effect of denying one of the parties any practical possibility of access to court would surely be invalid.272

270 See, for example, Huddart Parker Ltd v The Ship Mill Hill and her Cargo (1950) 81 CLR 502 at 508–9 per Dixon J; see also Global Partners Fund Ltd v Babcock and Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 at [67][68],[84]–[88] per Spigelman CJ (Giles and Tobias JJA agreeing) as to the policy reasons in favour of upholding exclusive jurisdiction clauses. 271 Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 586–7 Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259 Co Ltd (1996) 188 CLR 418 at 444–5

per Fullagar J; Oceanic Sun Line

per Gaudron J; Akai Pty Ltd v People’s Insurance

per Toohey, Gaudron and Gummow JJ.

272 See, for example, Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445 per Toohey, Gaudron and Gummow JJ, referring with approval to a judgment of the Federal Court of Canada in Agro Co of Canada Ltd v The “Regal Scout” (1983) 148 DLR (3d) 412 . In that case, it had been held that an exclusive jurisdiction clause was void ‘on proof that the foreign court would not impose liability’.

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Vexatious litigants

3.117 As noted, access to justice exists in order to enable persons to seek court assistance for the protection of rights. It does not follow, however, that every appeal for court assistance is legitimate. A person who takes proceedings to harass their opponent or who initiates unreasonable proceedings may be said to be abusing the right of access to court by employing it for an end for which it was not intended. The common law recognises that the court has a right to protect its proceedings against abuse. Vexatious litigation has been considered an abuse of process for a considerable period of time.273

273 See the history of the inherent jurisdiction and the statutory jurisdiction discussed in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 314–17

per Barwick CJ and McTiernan J.

3.118 Today, two methods are available for restraining vexatious litigants. First, the court has an inherent jurisdiction to make an order preventing a party from making applications in existing proceedings.274 This inherent jurisdiction does not enable the court to make a prospective order preventing a person from commencing new proceedings.275

274 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319–20

per Barwick CJ and McTiernan J.

275 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 314–15,319

per Barwick CJ and McTiernan J;

MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 at[197] Crennan and Kiefel JJ.

per Heydon,

3.119 Secondly, in each jurisdiction, legislation enables the court to make orders which restrain a litigant from commencing any future proceedings without the leave of the court.276 Thus, the inherent jurisdiction is concerned only with existing

Page 130 proceedings, whilst the statutory jurisdiction extends to enabling the court to restrain future proceedings.277

276 Federal Court of Australia Act 1976 (Cth) Pt VAAA; Supreme Court Act 1933 (ACT) s 67A; Vexatious Proceedings Act 2008 (NSW); Vexatious Proceedings Act (NT); Vexatious Proceedings Act 2005 (Qld); Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Procedure Act 1932 (Tas) s 194G; Vexatious Proceedings Act 2014 (Vic); Vexatious Proceedings Restriction Act 2002 (WA). 277 Von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109 at [16] per Keane JA, (McPherson JA and Philippides J agreeing). In Victoria, the legislation concerning vexatious litigants specifically enables the court to make orders restraining interlocutory applications in existing proceedings: Vexatious Proceedings Act 2014 (Vic) Pt 2.

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3.120 The detail of the legislation concerning vexatious litigants varies between jurisdictions, but the principal features are substantially similar in all jurisdictions (although there are some noteworthy variations in Victoria). In simplified terms, where a person has repeatedly engaged in vexatious litigation,278 the court may declare that person to be a vexatious litigant. An application for such an order may usually be made by the Attorney-General, a person against whom vexatious proceedings have been instituted, or a person with a sufficient interest;in some jurisdictions, the court may make an order on its own motion.279 In most jurisdictions, the legislation specifies that an order will only be made after the person said to be a vexatious litigant has been given the opportunity to be heard,280 although procedural fairness would require this in any event. Once a person has been declared to be a vexatious litigant, they may only commence fresh proceedings with the leave of the court.281 In Victoria, the legislation provides for a variety of different orders that may be made, depending on the nature of the vexatious litigation. Most relevant for present purposes are the extended litigation restraint order282 — which restrains future proceedings against a named person without leave of the court — and the general litigation restraint order283 — which restrains any future proceedings without leave of the court. Again, a person against whom such an order is to be made must be given an opportunity to be heard.284

278 As to the test for when an order may be made, see Federal Court of Australia Act 1976 (Cth) s 37AO(1); Supreme Court Act 1933 (ACT) s 67A(2);Vexatious Proceedings Act 2008 (NSW) s 8(1); Vexatious Proceedings Act (NT) s 7(1); Vexatious Proceedings Act 2005 (Qld) s 6(1); Supreme Court Act 1935 (SA) s 39(1); Supreme Court Civil Procedure Act 1932 (Tas) s 194G(1); Vexatious Proceedings Restriction Act 2002 (WA) s 4(1). 279 As to the persons who may apply for such an order, see Federal Court of Australia Act 1976 (Cth) s 37AO(3); Supreme Court Act 1933 (ACT) s 67A(2);Vexatious Proceedings Act 2008 (NSW) s 8(4); Vexatious Proceedings Act (NT) s 7(6); Vexatious Proceedings Act 2005 (Qld) s 5; Supreme Court Act 1935 (SA) s 39(1); Supreme Court Civil Procedure Act 1932 (Tas) s 194G(3); Vexatious Proceedings Restriction Act 2002 (WA) s 4(2). 280 Federal Court of Australia Act 1976 (Cth) s 37AO(4); Vexatious Proceedings Act 2008 (NSW) s 8(3); Vexatious Proceedings Act (NT) s 7(5);Vexatious Proceedings Act 2005 (Qld) s 6(4); Vexatious Proceedings Restriction Act 2002 (WA) s 4(3). 281 Federal Court of Australia Act 1976 (Cth) s 37AQ; Supreme Court Act 1933 (ACT) s 67A(5); Vexatious Proceedings Act 2008 (NSW) s 13;Vexatious Proceedings Act (NT) s 11(2); Vexatious Proceedings Act 2005 (Qld) s 10; Supreme Court Act 1935 (SA) s 39(1)(a); Supreme Court Civil Procedure Act 1932 (Tas) s 194G(2); Vexatious Proceedings Restriction Act 2002 (WA) s 4(1)(d). 282 Vexatious Proceedings Act 2014 (Vic) Pt 3. 283 Vexatious Proceedings Act 2014 (Vic) Pt 4. 284 Vexatious Proceedings Act 2014 (Vic) s 45.

3.121 The circumstances in which a litigant will be restrained from bringing future proceedings, or future applications in existing proceedings, are limited. An order restricting access to the courts ‘will not lightly be made’ because of the critical

Page 131 importance of the right of access to the court.285 It should be noted, though, that the court has other powers to restrain repetitive or vexatious litigation. For example, the court may strike out pleadings which contain vexatious content,286 and may dismiss proceedings which are an abuse of process.287

Page 57 of 64 Chapter 3 The Right to a Fair Trial 285 Kowalski v MMAL Staff Superannuation Fund Pty Ltd ACN 064 829 616 (2007) 242 ALR 370; [2007]FCA 1069 at [44] per Finn J. 286 See Chapter 7, 7.14. 287 Hunter v Leahy (1999) 91 FCR 214 at 221 R 681; [2005] QCA 109 at [24]–[25]

per French J; Von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd per Keane JA (McPherson JA and Philippides J agreeing); Manolakis v

Commonwealth Director of Public Prosecutions (2009) 108 SASR 451; [2009] SASC 193 at [21] abuse of process, see generally Chapter 14, 14.30–14.68 and Chapter 26, 26.126–26.131.

per Gray J; as to

3.122 Restrictions on vexatious litigants are justified both in order to protect their opponents and to prevent wasting the resources of the administration of justice in unmeritorious litigation.288 These considerations are weighty enough to justify restriction of the freedom to litigate and therefore do not offend against the right of access to the courts.

288 Attorney-General v Ebert [2001] EWHC Admin 695; [2002] 2 All ER 789 at [35][36] per Brooke LJ (delivering the judgment of the court); Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 (CA) at [3],[15] per Lord Phillips (delivering the judgment of the court); Manolakis v Commonwealth Director of Public Prosecutions (2009) 108 SASR 451; [2009] SASC 193 at [10],[12]

per Gray J.

Litigants under a legal incapacity

3.123 In some circumstances, fairness requires that restrictions should be placed on party autonomy. This is so where a party is incapable of adequately representing itself or otherwise safeguarding its interests. Accordingly, the rules in all jurisdictions make special provision for litigants under a legal incapacity, in order to ensure that their interests are protected and that they are treated on an equal footing in the litigation process.

3.124 The definition of a person under a legal incapacity varies between jurisdictions;289 however, the principal categories of persons who will be affected by these rules are children, and litigants who have a mental disability. Where a litigant is under a legal incapacity, they may only commence or participate in legal proceedings through a litigation guardian.290 There are limited exceptions to this: for example, in some

Page 132 jurisdictions, there is provision for a child to conduct litigation on their own behalf.291 In most jurisdictions, a litigation guardian may only act by a solicitor, although in some jurisdictions this requirement does not apply where the litigation guardian is, themselves, a legal practitioner.292

289 Federal Court Rules 2011 (Cth) Dictionary; Court Procedures Rules 2006 (ACT) Dictionary; Uniform Civil Procedure Rules 2005 (NSW) r 7.13; Supreme Court Rules (NT) r 15.01; Uniform Civil Procedure Rules 1999 (Qld) Dictionary; Supreme Court Civil Rules 2006 (SA) r 4; Supreme Court Rules 2000 (Tas) r 5; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 15.01; Rules of the Supreme Court 1971 (WA) O 70 r 1.

Page 58 of 64 Chapter 3 The Right to a Fair Trial 290 Federal Court Rules 2011 (Cth) rr 9.61 and 9.66(1); Court Procedures Rules 2006 (ACT) r 275(1); Uniform Civil Procedure Rules 2005 (NSW) r 7.14(1); Supreme Court Rules (NT) r 15.02(1); Uniform Civil Procedure Rules 1999 (Qld) r 93(1); Supreme Court Civil Rules 2006 (SA) r 78(1); Supreme Court Rules 2000 (Tas) r 292(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15.02(1); Rules of the Supreme Court 1971 (WA) O 70 r 2(1). Terminology varies: in the Federal Court, the role is referred to as a ‘litigation representative’; in New South Wales, it is a ‘tutor’. In Western Australia, the representative is referred to as a ‘next friend’ when the person under a disability is the plaintiff, and as a ‘guardian ad litem’ if the person under a disability is defending, making a counterclaim or otherwise intervening. 291 Court Procedures Rules 2006 (ACT) r 275(2); Supreme Court Civil Rules 2006 (SA) r 78(1); Rules of the Supreme Court 1971 (WA) O 70 r 2(4). Some rules also provide for an exception in the event that another law otherwise provides: see, for example, Court Procedures Rules 2006 (ACT) r 275(1) and Court Procedures Act 2004 (ACT) s 74E; Supreme Court Rules (NT) r 15.02(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15.02(1). 292 Federal Court Rules 2011 (Cth) r 9.66(3); Court Procedures Rules 2006 (ACT) r 275(6); Uniform Civil Procedure Rules 2005 (NSW) r 7.14(2); Supreme Court Rules (NT) r 15.02(3); Uniform Civil Procedure Rules 1999 (Qld) r 93(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15.02(3); Rules of the Supreme Court 1971 (WA) O 70 r 2(3).

3.125 In many jurisdictions, a litigation guardian may act without any formal appointment or court order.293 In England, the policy reasons for an equivalent rule have been explained in the following terms:294 The rule making body plainly contemplated, and intended, that the question whether a party was required to act through a [litigation guardian] should, in the ordinary case, be determined by the party himself or by those caring for him;perhaps with the advice of a solicitor but without the need for inquiry by the court.

Where a court order is required, it is incumbent on the court to ensure that a litigant is not deprived of their civil rights. It is presumed that adults are competent to conduct litigation on their own behalf, and the onus of proving otherwise is on the person who alleges the contrary.295 A court would usually (although not invariably) require medical evidence before making a finding that a person requires a litigation guardian.296

293 Court Procedures Rules 2006 (ACT) r 278(1); Uniform Civil Procedure Rules 2005 (NSW) r 7.15(1); Supreme Court Rules (NT) r 15.03(6); Uniform Civil Procedure Rules 1999(Qld) r 95(1); Supreme Court Civil Rules 2006 (SA) r 79; Supreme Court Rules 2000 (Tas) r 292(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15.03(6); Rules of the Supreme Court 1971 (WA) O 70 r 3(2). 294 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at [66]

per Chadwick LJ (Potter LJ agreeing); see also at [30] per Kennedy LJ (Potter LJ agreeing).

295 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at [17]

(per curiam).

296 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511

; [2002] EWCA Civ 1889; [2003] EWCA Civ 70

per Kennedy LJ (Potter LJ agreeing); L v Human Rights and Equal Opportunity Commission (2006)

233 ALR 432; [2006] FCAFC 114 at [26]

3.126

; [2002] EWCA Civ 1889; [2003] EWCA Civ 70

per Kennedy LJ (Potter LJ agreeing); L v Human Rights and Equal Opportunity Commission (2006) 233

ALR 432; [2006] FCAFC 114 at [27]

at [17],[29]

; [2002] EWCA Civ 1889; [2003] EWCA Civ 70

(per curiam).

Page 59 of 64 Chapter 3 The Right to a Fair Trial Further provisions concerning litigants under a legal incapacity may be found throughout the rules in all jurisdictions. For example, there are special rules concerning the service of documents on such litigants in all jurisdictions.297 It is also common for the rules of court to require that any settlement in favour of, or against, a litigant under a legal incapacity be approved by the court.298

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297 See, for example, the rules concerning service: see Chapter 5, 5.75–5.76. 298 Federal Court Rules 2011 (Cth) r 9.70; Court Procedures Rules 2006 (ACT) r 282; Civil Procedure Act 2005 (NSW) ss 75 and 76; Supreme Court Rules (NT) r 15.08; Uniform Civil Procedure Rules 1999 (Qld) r 98; Supreme Court Civil Rules 2006 (SA) r 257; Supreme Court Rules 2000 (Tas) r 299; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15.08; Rules of the Supreme Court 1971 (WA) O 70 rr 10, 10A and 11; Supreme Court (Court of Appeal) Rules 2005 (WA) r 60(3).

Abuse of process

3.127 The general right of access to court is available to litigants only for pursuing a legitimate interest in seeking court resolution of a dispute. As we shall see when we come to discuss the courts’ management powers, judges have the power to dismiss pleadings that amount to abuse of process and to prevent litigants from using any procedural device in a manner that amounts to an abuse of process.299

299 For discussion of abuse of process, see Chapter 14, 14.30–14.68 and Chapter 26, 26.126–26.131.

Equality before the law? No requirement of equality of arms

3.128 Australian civil procedural rules do not require the court, as part of the overriding objective, to ensure that there is equality of arms between the parties to litigation. The Victorian Court of Appeal explained the position in a judgment concerning an application for a protective costs order (that is, a prospective order which caps the costs for which a party will be liable in the event that it is unsuccessful). In Muhammad Khalid v Secretary, Department of Transport, Planning and Local Infrastructure,300 the applicant, in support of his application for a protective costs order, submitted that if the order were not made, he would likely discontinue his appeal owing to his financial circumstances, and that the order was therefore necessary to achieve ‘equality of arms’, which was said to be an aspect of the overarching purpose of the Civil Procedure Act (the CPA).301 The Court of Appeal rejected that submission, observing that:302 The term ‘equality of arms’ does not appear in the CPA nor in the Rules. These costs allocation rules have been the subject of considerable analysis, review and well developed jurisprudence. The reports that led to civil procedure reform both here and in the UK, including those that led to the introduction of the CPA do not identify a principle of equality of arms as informing the CPA’s purpose, or as being necessary to the just determination of a dispute more broadly. Given the long history of these rules, we do not accept, in the absence of clear words to the contrary, that s 7 of the CPA incorporates such a principle.

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300 [2014] VSCA 115. 301 [2014] VSCA 115 at [25], [27] per Warren CJ and Santamaria JA. 302 [2014] VSCA 115 at [30] per Warren CJ and Santamaria JA.

3.129 Similarly, in Bare v Small, the Victorian Court of Appeal distinguished the English jurisprudence on point on the basis that the equivalent English rule had the stated aim of enabling ‘the court to deal with costs justly’, and that the English CPR included in the overriding objective the directive that ‘Dealing with a case justly includes, so far as is practicable — (a) ensuring that the parties are on an equal

Page 134 footing’.303 Conversely, the Court of Appeal observed, ‘the Victorian provisions are not concerned … with ensuring that the parties are on an equal footing’.304

303 Bare v Small (2013) 47 VR 255; [2013] VSCA 204 at [24],[48] 304 Bare v Small (2013) 47 VR 255; [2013] VSCA 204 at [48]

per Hansen and Tate JJA. and see also [35] per Hansen and Tate JJA.

3.130 Nevertheless, it is an aspect of procedural fairness that parties be treated impartially by the court, as has been explained earlier in this chapter.305

305 See 3.18 above as to the constitutional significance of the requirement for an impartial tribunal; see generally 3.25–3.45 above as to the right to an independent and impartial tribunal.

Justified departure from equality

3.131 Complete equality of treatment in procedure is not always practically feasible, nor would it always lead to justice. Departure from equality might be justified on purely practical grounds. The requirement of proof on the balance of probabilities illustrates the point. Where the judge is in doubt whether the plaintiff’s version of the facts or that of the defendant is correct, there has to be a tie-breaking rule, otherwise litigation could end in a stalemate. Australian law requires plaintiffs to prove their case on the balance of probabilities, which inevitably exposes plaintiffs to a higher risk of error. The balance of probabilities test represents the minimal disturbance of equality needed for meeting the practical necessity of having a rule for avoiding a deadlock.

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3.132 Departure from equality may be justified where it is necessary in order to avoid a greater harm. Where a litigant requires urgent court action to protect its rights, it is justified to temporarily deny its opponent the right to participate in the process so that the court may take immediate measures to safeguard its rights until a hearing in the presence of both parties can be held. Similarly, where a plaintiff has reason to fear that if it learns of the claim the defendant would take precipitate action to dissipate its assets, the court may issue a freezing order without prior notice to the defendant, for otherwise the defendant would be able to defeat the object of the process.

3.133 Inequality in procedure may arise not only from uneven procedural arrangements, but also from inequality of some personal attributes of the parties. For instance, a litigant who is less well informed or well resourced is likely to fare worse than a better-informed or resourced litigant, all else being equal. Of course, the law cannot iron out all possible inequality, but it must try to prevent injustice that could follow from gross disparities, such as are likely to arise from youth, serious mental illness or other incapacity. For this reason, the rules in all jurisdictions make special provision for litigants who are under a legal incapacity.306

306 See 3.123–3.126 above.

3.134 A particular area of concern is the potential for gross disparity in financial resources between the parties to unfairly disadvantage the party who is less well resourced. In its 2014 report entitled Access to Justice Arrangements, the Productivity Commission referred to evidence which suggested that high legal costs were one reason for parties terminating proceedings before their conclusion, and perhaps settling for

Page 135 less than the amount to which they believed they were entitled.307 Such evidence underlines the need for courts to ensure, in the exercise of their case management functions, that the procedures adopted in each case are tailored to ensure proportionate expenditure of resources.308

307 Productivity Commission, Access to Justice Arrangements, Report No 72, 5 September 2014, p 124. 308 For a discussion of proportionality, see Chapter 1, 1.66–1.72.

Legal representation

3.135 Even in criminal proceedings, there is no common law right in Australia to public funding for legal representation.309 In the context of criminal proceedings, the court has the power to order a stay if any trial would be unfair; in the leading case of Dietrich v R, it was observed that this power would be enlivened ‘in most cases in which an accused is charged with a serious offence’.310 But there is no such power in civil proceedings.311

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309 New South Wales v Canellis (1994) 181 CLR 309 at 328 310 Dietrich v R (1992) 177 CLR 292 at 297–8

per Mason CJ, Dawson, Toohey and McHugh JJ.

per Mason CJ and McHugh J.

311 New South Wales v Canellis (1994) 181 CLR 309 at 328

per Mason CJ, Dawson, Toohey and McHugh JJ.

Self-represented litigants

3.136 Litigants have a ‘fundamental’ right to appear in person.312 There are, however, exceptions to the general principle. For instance, persons under a legal incapacity must have a litigation guardian to conduct proceedings on their behalf to guard against the risk that they cannot adequately protect their interests.313 Apart from litigants who choose to appear in person, there are some litigants who have no choice but to represent themselves, owing to the cost of legal representation and the limited availability of public funding for legal aid.314

312 Cachia v Hanes (1994) 179 CLR 403 at 415 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. For a criticism of this right, see R Assy, Injustice in Person, Oxford University Press, Oxford, 2015. 313 See 3.123–3.126 above. 314 Productivity Commission, Access to Justice Arrangements, Report No 72, 2014, Ch 14, especially 14.3, ‘Why do people self-represent’?

3.137 Where litigants are left to face court proceedings without any assistance, there is a risk meritorious claims and defences could founder for lack of understanding and expertise on the part of lay litigants.315 However, in all proceedings, the court is obliged to ensure that any trial is fair.316 Where there is a self-represented litigant before the court, the duty to ensure a fair trial extends to:317

Page 136   … an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial.

The ‘appropriate steps’ that a judge may take in order to ensure a fair trial will depend on the circumstances of the case. But in all cases, the ‘touchstone … remains that of fairness’; another aspect of fairness is, of course, ensuring that the judge remains impartial as between the competing parties.318

315 See, for example, Productivity Commission, Access to Justice Arrangements, Report No 72, 2014, Ch 14, especially 14.4, ‘What are the impacts of self-representation’?

Page 63 of 64 Chapter 3 The Right to a Fair Trial 316 Hamod v New South Wales [2011] NSWCA 375 at [309]

per Beazley JA (Giles JA and Whealy JA agreeing);

Sanderson v Bank of Queensland Ltd [2016] QCA 137 at [22] agreeing). 317 Hamod v New South Wales [2011] NSWCA 375 at [311]

per Philip McMurdo JA (Morrison JA and Burns J

per Beazley JA (Giles and Whealy JJA agreeing).

318 Hamod v New South Wales [2011] NSWCA 375 at [313],[315]

per Beazley JA (Giles and Whealy JJA agreeing).

McKenzie friends

3.138 Australian courts recognise the right of a litigant to be assisted by a friend, known as a McKenzie friend.319 The usual role of a McKenzie friend is to be present in court, and to assist by prompting, taking notes and giving advice.320 Such assistance can be invaluable, if the friend is well informed and experienced. Even where the friend is incapable of giving legal advice, their presence may still be of great help to the litigant, by providing practical help, such as taking notes, and giving comfort or moral support.

319 After the case of McKenzie v McKenzie [1971] P 33 Killalea [2003] WASCA 81 at [47]

; [1970] 3 All ER 1034 (CA)

; see, for example, Scarce v

per McClure J; Coffey v Queensland [2010] QCA 291 at [37]–[38]

per Fraser

JA (Muir JA and Cullinane J agreeing); Cristovao v Registrar Caporale [2012] FCA 1329 at [28] per Murphy J. In some cases, it has been suggested that there is a discretion to permit a McKenzie friend: see, for example, Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89; [2015] FCA 366 at [13] per Edelman J.However, the better view is that any person may act as a McKenzie friend, but that a McKenzie friend may only address the court at the discretion of the court (discussed further below). Note that a different approach is taken in criminal cases: see Smith v R (1985) 159 CLR 532 at 534

per Mason CJ (Wilson, Brennan and Dawson JJ agreeing).

320 Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290; McKenzie v McKenzie [1971] P 33 ; [1970] 3 All ER 1034 (CA). See R Moorhead, ‘Access or Aggravation? Litigants in Person, McKenzie Friends and Lay Representation’ (2003) 22 Civil Justice Quarterly 133.

3.139 The court would normally confine the role of a McKenzie friend to advising the litigant, prompting him or her and taking notes.321 But in some circumstances, the court may permit a McKenzie friend to address the court. In Damjanovic v Maley ,322 Stein JA identified that in exercising the discretion whether to permit an unqualified person to address the court, it would be relevant to consider ‘the complexity of the case’, the absence of any duty owed to the court, or sanctions for wrongdoing, by lay advocates, the nature of the court (higher courts would be more reluctant to grant leave), and ‘the interests of justice’. To these have been added ‘the genuine difficulties

Page 137 of the unrepresented parties’ and ‘the protection of the client and opponent’.323 Thus, it has been said that:324 … great care must … be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good.

Page 64 of 64 Chapter 3 The Right to a Fair Trial Accordingly, the circumstances in which McKenzie friends will be permitted to address the court have been described as ‘rare’, where there would be an ‘otherwise incurable denial of procedural fairness’325 and ‘exceptional’.326 However, it is suggested that in appropriate cases, permitting the McKenzie friend to address the court may not only assist the self-represented litigant in explaining their case, but also may assist the court, speed up the proceedings and save costs.

321 Scarce v Killalea [2003] WASCA 81 at [47] Mortimer J.

per McClure J; Dauguet v Centrelink [2015] FCA 395 at [115]

322 (2002) 55 NSWLR 149; [2002] NSWCA 230 at [69]–[86] 323 Cristovao v Registrar Caporale [2012] FCA 1329 at [28]

per Stein JA (Mason P and Sheller JA agreeing). per Murphy J.

324 Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89; [2015] FCA 366 at [15] 325 Dauguet v Centrelink [2015] FCA 395 at [116][117] 326 Schagen v R (1993) 8 WAR 410 at 412

End of Document

per Mortimer J.

per Malcolm CJ.

per

per Edelman J.

Chapter 4 Commencement of Proceedings Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 4 — Commencement of Proceedings

Chapter 4 Commencement of Proceedings Page 139 [Current to May 2018]

Introduction

4.1 A person wishing to bring legal proceedings in Australia must ordinarily carry out two initiating steps: (1) filing an originating process in the registry of the court in which the proceedings are to be conducted, and (2) serving the originating process on all defendants. The term ‘originating process’ is used in this chapter to mean the document that commences proceedings upon its delivery to the court.

4.2 Filing an originating process is an essentially formal step. It serves the purpose of commencing the proceedings, which is important for various time calculations. Service on the defendant, which is the topic of the following chapter, ensures that they are notified of the commencement of the proceedings. As will be seen, it is only after service on the defendant that the process of the court is fully engaged. Notification through service satisfies the fundamental requirement that a person must be aware of, and have the opportunity to be heard in, court proceedings which affect their interests.1

1

This is discussed in more detail in Chapter 3.

4.3 Commencing proceedings by filing an originating process is important to meeting two important deadlines. First, the date on which the originating process is filed engages other court processes. For example, in many jurisdictions, it starts time running for the period in which the plaintiff is required to serve the originating process on the defendant (which, in turn, triggers time running on other steps in litigation). Secondly, and more importantly, the date on which the originating process is filed is determinative for the purpose of calculating whether proceedings have been commenced within the limitation period. A claim which is not commenced within the limitation period becomes timebarred, with the result that the plaintiff will be unable to proceed with the claim unless it is possible to obtain an extension (which usually requires the plaintiff to demonstrate that there are special circumstances).2

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2

For the calculation of when time starts and finishes running on limitation periods, and the circumstances in which limitation periods are extended or postponed, see generally P R Handford, Limitation of Actions: The Laws of Australia, 3rd ed, Thomson Reuters, Sydney, 2012.

4.4 The importance of commencement to the limitation periods has two further implications. First, the process of commencing proceedings ought not to require the cooperation of the defendant; otherwise, the plaintiff could be prevented from commencing proceedings within time, and could thus be denied access to the court by the defendant’s failure to cooperate. Commencement therefore ought to be a unilateral act of the plaintiff. Secondly, the process of commencement ought to be simple and capable of being completed quickly, to avoid the possibility that a plaintiff who seeks to bring proceedings towards the end of the limitation period runs out of time in complying with unduly technical or complicated requirements for commencement.

4.5 In modern litigation, however, the commencement of court proceedings ought not to be regarded as the start of the dispute resolution process. There is a trend in Australian jurisdictions towards encouraging parties to communicate prior to filing originating processes. The form of this encouragement varies between jurisdictions.

Prior to commencement — overview

4.6 In all jurisdictions, a prospective plaintiff is able to apply to the court, prior to commencing proceedings, for orders for various investigatory processes. For example, all jurisdictions permit a prospective plaintiff to seek pre-action discovery in particular circumstances; this will be addressed in Chapter 15. Some jurisdictions also permit more extensive pre-action investigative processes, for example requiring a person to appear at court for crossexamination, or to disclose relevant evidentiary material in their possession.3 These processes serve to assist the prospective plaintiff in identifying the defendant or pleading their case, and are engaged at the option of that party. The pre-trial discovery and investigative processes serve to mitigate any disadvantage that the plaintiff may face in commencing its case owing to a lack of documentary or other evidence.

3

See, for example, Supreme Court Civil Rules 2006 (SA) r 32.

4.7 In some Australian jurisdictions, obligations are imposed on the parties to engage in some sort of negotiation or alternative dispute resolution before proceedings are commenced. These processes serve an entirely separate

Page 3 of 50 Chapter 4 Commencement of Proceedings purpose. First, they are designed to assist the parties to resolve their dispute without the need for court proceedings. Secondly, the pre-trial negotiation obligations also seek to narrow the areas of the dispute between the parties in the event that the claim cannot be entirely resolved before proceedings.

4.8 Separately, some Australian jurisdictions place obligations on one or both of the parties, or their lawyers, to take particular steps prior to action. As will be seen, these obligations serve either to reinforce the need for the plaintiff to comply with case management requirements, or serve to prevent parties from filing originating processes or defences which have limited prospects of success.

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Pre-commencement obligations Federal Court

4.9 A ‘genuine steps statement’, substantially in the form of Form 16, must be filed with the originating application where the plaintiff is commencing civil proceedings.4 This must identify what steps (if any) the parties have taken to seek to resolve their dispute, or the reasons why no such steps have been taken.5 A respondent must also file a genuine steps statement, before the hearing date endorsed on the originating application, indicating if it agrees with the applicant’s statement, or identifying the areas and reasons for disagreement.6

4

Civil Dispute Resolution Act 2011 (Cth) s 6(1); Federal Court Rules 2011 (Cth) r 8.02; see also rr 2.11 and 2.12. Civil proceedings are not defined in the Act, but Pt 4 lists a series of exclusions.

5

Civil Dispute Resolution Act 2011 (Cth) s 6(2). The Act indicates that the reasons for a failure to take genuine steps might include (but are not limited to) urgency, or a risk to the safety or security of person or property: s 6(2)(b).

6

Civil Dispute Resolution Act 2011 (Cth) s 7.

4.10 Unlike the South Australian pre-action regime (discussed below), the federal Civil Dispute Resolution Act is not prescriptive as to what steps are required to resolve a dispute. Genuine steps are defined broadly as being ‘a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the dispute’.7 A non-exhaustive list of examples includes notifying the opponent of the issues, offering to discuss the dispute, providing necessary documents, and attempting to negotiate or engage in alternative dispute resolution.8

7

Civil Dispute Resolution Act 2011 (Cth) s 4(1A).

8

Civil Dispute Resolution Act 2011 (Cth) s 4(1) and (2).

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4.11 Lawyers must advise their clients of the requirement to prepare a genuine steps statement, and assist them to comply.9 A failure to comply with this duty may be taken into account in awarding costs, and any order for costs made against a lawyer personally in this respect cannot be recovered from the client.10

9

Civil Dispute Resolution Act 2011 (Cth) s 9.

10 Civil Dispute Resolution Act 2011 (Cth) s 12(2) and (3).

4.12 Failure to file a genuine steps statement does not invalidate the originating application or any response.11 However, the court may have regard to the lack of the statement, or a failure to take genuine steps to resolve the dispute, in exercising its powers and functions in the proceedings.12 Specifically, these matters may be taken into account in the exercise of the court’s discretion as to costs.13

11 Civil Dispute Resolution Act 2011 (Cth) s 10. 12 Civil Dispute Resolution Act 2011 (Cth) s 11. 13 Civil Dispute Resolution Act 2011 (Cth) s 12(1).

4.13 For certain proceedings under the Migration Act 1958 (Cth), the originating application may only be filed by a lawyer if accompanied by a certificate substantially in the form of Form 15.14

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14 Federal Court Rules 2011 (Cth) r 8.04.

Australian Capital Territory

4.14 Prior to commencing proceedings by originating claim in the Australian Capital Territory,15 practitioners are required to give their clients written notice about the need to comply with court orders, and the requirements of the practice direction on case management. Clients must also be informed that the consequences of failure to comply with court orders include that actions or counterclaims may be dismissed, and there may also be costs consequences.16

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15 There are limited exceptions: see ACT, Practice Direction 2 of 2014 (‘Case management in proceedings commenced by originating claim’), [3]–[5]. 16 ACT, Practice Direction 2 of 2014 (‘Case management in proceedings commenced by originating claim’), [9]. Schedule 1 to the practice direction is a template of such a notice.

4.15 Where the proceedings concern a claim for damages, a lawyer in the Australian Capital Territory must not file any pleading unless it is accompanied by a certificate stating that the lawyer believes that the claim or defence has reasonable prospects of success.17 The approved form for an originating claim includes a template for such a certificate. A failure to comply with this requirement may constitute professional misconduct or unsatisfactory professional conduct, and may also lead to a costs order being made against the lawyer.18 This regime applies ‘despite any obligation of the lawyer to act in accordance with the instructions or wishes of the client’. The requirement that a lawyer certify that their client’s case meets a certain threshold of merit,which also exists in New South Wales and Victoria, is discussed separately below.

17 Civil Law (Wrongs) Act 2002 (ACT) s 188(2); see generally Pt 14.2. 18 Civil Law (Wrongs) Act 2002 (ACT) ss 188(3) and 189.

New South Wales

4.16 In New South Wales, legal practitioners are not permitted to provide legal services in respect of a claim or defence unless they reasonably believe ‘on the basis of provable facts and a reasonably arguable view of the law’ that it has reasonable prospects of success.19 Notably, this provision prohibits not only commencing (or defending) proceedings which do not have reasonable prospects of success, but extends to the provision of legal services in respect of the claim or defence. For present purposes, however,it is important to note that one aspect of this restriction is that certain court documents — including an originating process, a defence, or further pleading — cannot be filed without a certification by a legal practitioner that the claim or defence has reasonable prospects of success.20

19 Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 s 2(1); see also s 2(2) and 2(4). Acting in a matter which does not have reasonable prospects of success can lead to costs consequences for the legal practitioner,and may also constitute unsatisfactory professional conduct or professional misconduct: see Sch 2 s 5 and s 4(1). 20 Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 s 4(2)–(4).

4.17 As in the Australian Capital Territory, this obligation on legal practitioners applies ‘despite any obligation’ that a practitioner ‘may have to act in accordance with

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Page 6 of 50 Chapter 4 Commencement of Proceedings the instructions or wishes of the client’.21 A legal practitioner, or law practice, which provides legal services to a client who does not have reasonable prospects of success may be penalised in costs, either by remunerating their client for costs which their client has been obliged to pay other parties, or by indemnifying other parties for their costs.22 The merits and risks of requiring lawyers to act as gatekeepers of access to the court are discussed separately below.23

21 Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 s 2(3). 22 Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 s 5(1), and see s 5 generally. 23 See 4.28–4.32 below.

Northern Territory

4.18 Since 2009, the Northern Territory has imposed a pre-action regime through a practice direction.24 Where circumstances preclude the pre-action steps being taken (for example, because of urgency), the parties are expected to pursue its objects after commencement.25 The aim of the pre-action regime is to encourage early exchange of information, enable parties to avoid litigating by settlement, and encourage efficient case management where litigation is necessary.26 Litigation is to be regarded as a last resort.27

24 Practice Direction No 6 of 2009 (NT) — Trial Civil Procedure Reforms. This practice direction has been extended from time to time — see, for example, Practice Direction No 2 of 2017 (NT), which renewed the 2009 Practice Direction for a further 12 months from 1 January 2017. 25 Practice Direction No 6 of 2009 (NT), [5]. 26 Practice Direction No 6 of 2009 (NT), [3]. See also the Explanatory Document for Practice Direction No 6 of 2009. 27 Practice Direction No 6 of 2009 (NT), [11].

4.19 The practice direction indicates that parties should ‘follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation’.28 However, the practice direction indicates that this will usually involve the plaintiff providing details of the claim, the defendant responding, and the parties negotiating in good faith.29 The plaintiff’s letter should include sufficient details of the claim, and enclose copies of essential documents; the practice directions also identify other statements that ought to be made as part of the effort to bring the parties to negotiate.30 The practice directions also indicate what the defendant’s response ought to include.31

28 Practice Direction No 6 of 2009 (NT), [4]. 29 Practice Direction No 6 of 2009 (NT), [4]. 30 Practice Direction No 6 of 2009 (NT), [6]. 31 Practice Direction No 6 of 2009 (NT), [8]–[10].

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4.20 The parties are expected to consider alternative dispute resolution, and the court may later require evidence that this occurred.32 Failure to comply with the requirements of the practice direction may be taken into account by the court in making orders for costs, and also in making orders for interest.33

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32 Practice Direction No 6 of 2009 (NT), [11]. 33 Practice Direction No 6 of 2009 (NT), [13].

South Australia

4.21 In most monetary claims,34 the plaintiff must notify the defendant or its insurer of the claim and offer to settle, prior to commencing the action.35 The notice provided by the plaintiff must identify the basis for settlement, sufficient details and supporting materials to enable the defendant to assess the offer and make an informed response, and copies of any expert reports.36 The defendant is required to respond by either accepting the offer, making a counteroffer, or identifying the grounds on which liability is denied.37

34 Supreme Court Civil Rules 2006 (SA) r 33(1) indicates the claims which are excluded from this requirement. 35 Supreme Court Civil Rules 2006 (SA) r 33(2); see also r 33(3) as to provision to an insurer. The notice and offer must be provided at least 90 days before commencement for personal injury actions, or 21 days in all other cases. 36 Supreme Court Civil Rules 2006 (SA) r 33(2). 37 Supreme Court Civil Rules 2006 (SA) r 33(4). The response must be provided within 60 days for personal injury actions, or 14 days in all other cases.

4.22 When proceedings are commenced, the originating process must be endorsed with a statement confirming that the plaintiff has complied, or explaining the reasons for failing to comply.38

38 Supreme Court Civil Rules 2006 (SA) r 33(6)(a).

4.23

Page 8 of 50 Chapter 4 Commencement of Proceedings The plaintiff’s notice and the defendant’s response must be filed, and will be placed in a suppressed file.39 There may be costs consequences for a failure to comply, and the reasonableness of the parties in their offers and counter-offers may also be taken into account in determining costs.40

39 Supreme Court Civil Rules 2006 (SA) r 33(6)(b). 40 Supreme Court Civil Rules 2006 (SA) r 33(7).

4.24 Separate, more extensive pre-action regimes exist for construction claims, and claims concerning medical negligence.41 The aim of the pre-action regime is to encourage the parties to resolve the dispute themselves, to involve insurers at an early stage, and to narrow issues and save cost and time in the event that the matter must be resolved by litigation.42

41 See Supreme Court Civil Supplementary Rules (SA) Ch 3 Pt 2. 42 Supreme Court Civil Supplementary Rules (SA) r 9.

Victoria

4.25 In Victoria, every party to litigation must file an overriding obligations certification, by which they confirm that they personally have ‘read and understood the overarching obligations and the paramount duty’.43 The certification must be in the prescribed form,44 and must be filed by the party at the same time as they file their first substantive document in the proceeding.45

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43 Civil Procedure Act 2010 (Vic) s 41(1). There are some limited exceptions to this: see ss 41(3)–(5), 44. 44 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.09. 45 Civil Procedure Act 2010 (Vic) s 41(2).

4.26 In Victoria, a legal practitioner acting for a plaintiff is also obliged to certify that there is a proper basis for each allegation of fact (where allegations of fact are made).46 In proceedings commenced by originating motion, the legal practitioner must certify that any claim or question posed in the document has a proper basis on the legal and factual material available.47 A proper basis certification must be in the prescribed form,48 and must be filed at the same time as the first substantive document in the proceedings, as well as at a series of subsequent stages in the proceedings.49 An unrepresented party must complete the proper basis certification personally.50

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46 Civil Procedure Act 2010 (Vic) s 42(1A). 47 Civil Procedure Act 2010 (Vic) s 42(1B); see also s 42(3). 48 Civil Procedure Act 2010 (Vic) s 42(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.10(2). 49 Civil Procedure Act 2010 (Vic) s 42(1). 50 Civil Procedure Act 2010 (Vic) s 42(4).

4.27 A failure to file an overriding obligations certification, or a proper basis certification, does not prevent the plaintiff from commencing proceedings; nor does it prevent either party from filing any documents which are required to be accompanied by certification.51 However, the court may take the failure to file the certification into account in making costs and other orders.52 The Victorian legislation, therefore, does not require lawyers to act as gatekeepers for their client’s access to the court in the same manner as in the Australian Capital Territory or New South Wales.53 But the requirement for the lawyer to complete a proper basis certification, and the possibility of adverse costs consequences, nevertheless engages many of the same policy considerations, which are discussed in the following section.

51 Civil Procedure Act 2010 (Vic) s 45. 52 Civil Procedure Act 2010 (Vic) s 46. 53 Discussed above at 4.14–4.15 and 4.16–4.17 respectively.

Requiring lawyers to certify the merits of their client’s case

4.28 One might question whether it is desirable for a lawyer to be required to certify that their client has a proper basis for its claim (as in Victoria), or that they have a reasonable prospect of success (as in the Australian Capital Territory and New South Wales). As discussed above, the obligations placed on lawyers are different in each of those jurisdictions. But in each jurisdiction, a lawyer is obliged to certify to the court that their client’s case meets some threshold of merit,and this obligation is enforced by the prospect of some form of costs sanction or other punitive consequence for the lawyer.

4.29 The problem with these obligations is their tendency to impede access to justice. As discussed in Chapter 3, access to justice is an important principle in the Australian legal system, which informs a range of rules and practices.54 For example, the principle of access to justice underpins the court’s reluctance to restrain vexatious litigants.

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54 See Chapter 3, 3.110–3.127.

4.30 The right of access to justice is undermined if it is made conditional on the agreement of another person or institution. More fundamentally, the right is available to all and not just to the righteous or those with meritorious claims (as the court’s approach to vexatious litigants demonstrates). While the requirement for a lawyer’s certification that the claim is meritorious does not prevent a person from bringing proceedings in person, it does tend to undermine access. This is because the right of access must be practically available and not merely in theory. For lay persons, the right of access can often be given meaningful content only through the assistance of legally qualified persons.

4.31 The question of how many resources the court should devote to an unmeritorious claim is an entirely different matter and it is one for the court acting in accordance with the rules. If the court process is efficient, an unfounded claim or defence would be disposed of with minimal investment of resources, whether the party in question is legally represented or not. The fact that the court needs lawyers to act as gatekeepers is a symptom of an inefficient or inadequate process, a defect which should be addressed directly rather than through tinkering with the right of access to justice. Further, where a court dismisses a claim for a lack of merit, it does so according to established principles, and the decision is open and reviewable. These safeguards are not available when the lawyer is placed in the role of gatekeeper.

4.32 On the other hand, it is clearly desirable that the court should not be troubled with hopeless claims. The right of access to justice does not permit litigants to waste the court’s time with hopeless claims or defences with no legal basis;such claims and defences may be struck out at an early stage. The question, therefore, is whether the court alone acts as the gatekeeper, or whether some responsibility is shared with lawyers. In a system of limited resources, it may well be justified to reduce the burden of the court by preventing lawyers from advancing arguments they know to be hopeless on the basis that the opposing party or the court could or should identify the flaws in their client’s case. A related point arises here:requiring lawyers to scrutinise their own clients’ cases, before engaging the process of the court, reduces the prospect of other litigants being troubled by unmeritorious claims. Finally, the effect on access to justice ought not to be overstated.If a lawyer will not certify that a case has sufficient merits, a litigant may nevertheless choose to represent themselves. The absence of legal representation ought not to be regarded as an insuperable obstacle to access to justice given that there is no right to legal representation in Australia,55 and that solicitors are not required to comply with the cab rank rule, and may therefore refuse to act in any event.

55 See Chapter 3, 3.135.

Jurisdiction of commencement

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4.33 The choice of the appropriate court for commencing proceedings requires consideration of two questions. First, because Australia is a federation, the appropriate jurisdiction must be selected. The plaintiff must consider whether its claim ought to be brought in a state or federal court, and, if there is more than one possibility, select

Page 147 between them. Secondly, within the chosen jurisdiction, the plaintiff must identify the appropriate court within the hierarchy of that jurisdiction for its claim. A detailed treatment of these issues is beyond the scope of this text; for present purposes, some general observations are sufficient.

Choice of jurisdiction

4.34 The Supreme Courts of each state in Australia have unlimited jurisdiction. The Federal Court of Australia (as well as the territory Supreme Courts) are creatures of statute, and consequently have only the jurisdiction which is conferred by legislation. There are many circumstances in which a particular set of events can give rise to a cause of action which is within the jurisdiction of the Federal Court as well as a cause of action within the jurisdiction of the state. For example, a claim in contract would be within the jurisdiction of the state court, but the facts might also give rise to a claim under the Australian Consumer Law, which is a matter arising under federal jurisdiction. There are also circumstances in which a claim might be brought within the jurisdiction of two or more states. For example, a contractual dispute between parties who are resident in different states might lead to choice of law questions concerning the most appropriate jurisdiction for the proceedings.

4.35 In an effort to avoid the necessity of bringing multiple proceedings in different courts for claims arising from a single set of facts, there exists cross-vesting legislation within each jurisdiction. This has the effect of conferring jurisdiction on a state court in respect of matters which arise under the jurisdiction of another state court, or the Federal Court. The Federal Court has accrued jurisdiction to deal with matters of state jurisdiction which are related to proceedings within federal jurisdiction. However, the cross-vesting legislation does not confer state jurisdiction on the Federal Court, because that would be inconsistent with Australia’s constitutional framework. The federal system, and its effect on civil justice, is dealt with in greater detail in Chapter 2.

Choice of court within jurisdiction

4.36 There is a hierarchy of courts within each Australian jurisdiction. All of the states, except Tasmania, have three levels of courts within the hierarchy in which original proceedings may be commenced. The choice of the appropriate court within a jurisdiction will often have important consequences. First, in almost all jurisdictions, there are jurisdictional limits on the value of the claim that should be brought in each court, which have the effect of directing proceedings to different courts depending on the value of the claim. There are usually costs consequences for failure to issue proceedings in the correct court. Secondly, procedural rules usually differ between courts, and the scale according to which costs may be recovered differs between courts. The choice of court within a jurisdiction may therefore have consequences later in the proceedings.

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4.37 In each state, the Supreme Court is the superior court of record, with unlimited jurisdiction. This means that the Supreme Court has jurisdiction over all types of civil proceedings, irrespective of the type or value of the claim.

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4.38 The District Court (or the County Court in Victoria) sits below the Supreme Court in the hierarchy in all states except Tasmania. The District Court in each of the five mainland states is created by legislation, and has only the jurisdiction conferred by parliament.56 In New South Wales and Queensland, legislation identifies a series of types of proceedings in respect of which the District Court has jurisdiction.57 In South Australia, Victoria and Western Australia, the District or County Court has the same jurisdiction as the Supreme Court in civil proceedings, subject to particular exclusions identified in the legislation.58

56 District Court Act 1973 (NSW) s 8; Constitution of Queensland (2001) s 57; District Court of Queensland Act 1967 (Qld) s 8; District Court Act 1991 (SA) s 4; County Court Act 1958 (Vic) s 4; District Court of Western Australia Act 1969 (WA) ss 7 and 8. 57 District Court Act 1973 (NSW) Pt 3 (especially ss 44–51); District Court of Queensland Act 1967 (Qld) Pt 5 Div 1. 58 District Court Act 1991 (SA) s 8; County Court Act 1958 (Vic) s 37; District Court of Western Australia Act 1969 (WA) Pt III Div 2 (especially s 50(1)).

4.39 The Magistrates Court (or the Local Court in New South Wales) is the lowest court in the hierarchy in every state. Like the District or County Court, it is established by legislation in each state.59 The Magistrates Court or Local Court in each state has jurisdiction only in respect of the types of proceedings identified in legislation.60

59 Local Court Act 2007 (NSW) s 7; Justices Act 1886 (Qld) s 22 ; Magistrates Court Act 1991 (SA) s 4; Magistrates Court Act 1987 (Tas) s 3A; Magistrates Court (Civil Division) Act 1992 (Tas) s 4; Magistrates’ Court Act 1989 (Vic) s 4; Magistrates Court Act 2004 (WA) s 4. 60 Local Court Act 2007 (NSW) s 9(1) and Pt 3; Justices Act 1886 (Qld) s 22A; Magistrates Court Act 1921 (Qld) ss 4, 4A; Magistrates Court Act 1991 (SA) s 8; Magistrates Court Act 1987 (Tas) s 3B and Magistrates Court (Civil Division) Act 1992 (Tas) ss 7–11; Magistrates’ Court Act 1989 (Vic) Pt 5 Div 1; Magistrates Court Act 2004 (WA) ss 9 and 10, see also Magistrates Court (Civil Proceedings) Act 2004 (WA) Pt 2.

4.40 In practice, claims of the greatest value will be pursued in the Supreme Court, and claims of the least value will be pursued in the Magistrates Court. This result is effected through a variety of legislative provisions and rules. In most states,the jurisdiction of the lower courts is limited to claims of a particular value61 — sometimes referred to as the

Page 13 of 50 Chapter 4 Commencement of Proceedings ‘jurisdictional limit’ — although there may be exceptions,62 and some courts also have a ‘consent jurisdiction’, where parties can agree to a claim being dealt with by a lower court, despite it being beyond that court’s jurisdictional limit.63 However, there is no lower limit on the value of a claim that can be brought in the Supreme Court of any state, nor in the District Court in most states.64 To deter plaintiffs from commencing proceedings in a higher court than necessary, most courts

Page 149 have rules which penalise the plaintiff in costs if it is successful but the value of the remedy falls short of a stipulated amount(not always the jurisdictional limit).65 The penalty might be that the plaintiff can only recover costs on the basis of the costs scale applicable in the lower court,66 or some other reduced amount,67 or that it will not be able to recover any costs.68

61 District Court Act 1973 (NSW) s 4 (jurisdictional limit of $750,000); Local Court Act 2007 (NSW) s 29 (jurisdictional limit is $100,000 for claims in the general division, and $60,000 for personal injury claims). 62 See, for example, District Court Act 1973 (NSW) s 44; Local Court Act 2007 (NSW) s 31; Magistrates’ Court Act 1989 (Vic) s 100(2A). 63 District Court Act 1973 (NSW) s 51; Local Court Act 2007 (NSW) s 31; District Court of Queensland Act 1967 (Qld) s 72; Magistrates Court Act 1921 (Qld) s 4A; Magistrates Court Act 1991 (SA) s 8; Magistrates Court (Civil Division) Act 1992 (Tas) s 11; Magistrates’ Court Act 1989 (Vic) s 100(1)(c). 64 New South Wales is an exception; for proceedings in the Local Court, the amount claimed must ordinarily be greater than $4000: Local Court Act 2007 (NSW) s 48(1). 65 Tasmania has an unusual provision in this respect; s 13 of the Supreme Court Civil Procedure Act 1932 (Tas) provides that where an action could have been brought in an inferior court, costs may be awarded on the Supreme Court scale, or the scale of the inferior court, at the discretion of the decision-maker. 66 Court Procedures Rules 2006 (ACT) r 1725; Supreme Court Rules (NT) r 63.22; Uniform Civil Procedure Rules 1999 (Qld) r 697; County Court Civil Procedure Rules 2008 (Vic) rr 63A.24 and 63A.25; Supreme Court Rules 1971 (WA) O 66 r 17 (see also District Court Rules 2005 (WA) r 6). 67 Federal Court Rules 2011 (Cth) r 40.08. 68 Uniform Civil Procedure Rules 2005 (NSW) rr 42.34 and 42.35; Supreme Court Civil Rules 2006 (SA) r 263(2)(f) and (g); District Court Civil Rules 2006 (SA) r 263(2)(f) and (g).

4.41 In most states and territories, there is a ‘small claims’ or ‘minor claims’ division within the Magistrates or Local Court.69 As the name suggests, this jurisdiction is limited to small value claims.70 The minor claims division usually has separate rules, which are intended to resolve civil disputes in a quicker, cheaper and less formal manner.71 Amongst other procedural differences, the proceedings may be non-adversarial in nature, the parties might not be entitled to legal representation, and there may be no jurisdiction to award costs.

69 There is no small claims jurisdiction in Victoria. In the Australian Capital Territory, claims of less than $25,000 are heard by the ACT Civil and Administrative Tribunal: see ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 16–18. In the Northern Territory, claims of less than $25,000 are heard by the Civil and Administrative Tribunal: see Small Claims Act (NT) ss 5 and 6; see also Local Court Act (NT) s 13A. 70 Local Court Act 2007 (NSW) s 29 ($10,000); Small Claims Act (NT) s 5 ($25,000); Uniform Civil Procedure Rules 1999 (Qld) Sch 4 (Definitions) ($25,000); Magistrates Court Act 1991 (SA) s 3(1) ($12,000); Magistrates Court (Civil Division) Act 1992 (Tas) s 3 ($5,000); Magistrates Court (Civil Proceedings) Act 2004 (WA) s 3 ($10,000). 71 ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 7 and 8; ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1); Local Court Act 2007 (NSW) ss 35 –37; Northern Territory Civil and Administrative Tribunal Act (NT) s 10; Uniform Civil Procedure Rules 1999 (Qld) rr 514–516; Magistrates Court Act 1991 (SA) ss 38–39;

Page 14 of 50 Chapter 4 Commencement of Proceedings Magistrates Court (Civil Division) Act 1992 (Tas) ss 31AA–31AG;Magistrates Court (Civil Proceedings) Act 2004 (WA) Pt 4.

4.42 In the federal jurisdiction, the two primary courts are the Federal Court and the Federal Circuit Court.72 Each is created by statute, and the jurisdiction of each court is defined by legislation.73 There is no single piece of legislation that identifies the type of proceedings which are heard in the Federal Court and the Federal Circuit Court. Rather, a variety of Acts of the Commonwealth Parliament confer legislation on the Federal Courts in respect of proceedings under those Acts. A proceeding commenced in the Federal Court may be transferred to the Federal Circuit Court, by court order.74

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72 The High Court also has a very limited original jurisdiction. 73 Federal Court of Australia Act 1976 (Cth) ss 5 and 19; Judiciary Act 1903 (Cth) s 39AB; Federal Circuit Court of Australia Act 1999 (Cth) s 10. 74 Federal Court of Australia Act 1976 (Cth) s 32AB.

4.43 The territory Supreme Courts are also established by statute, and have the jurisdiction conferred by legislation.75 Beneath the Supreme Courts of the territories are the Magistrates Court (in the Australian Capital Territory) and the Local Court (in the Northern Territory); again, legislation establishes these lower courts and identifies their jurisdiction,76 including the jurisdictional limit on the value of claims that can be pursued in the lower court.77 The rules of court in both of the territories provide that a successful plaintiff who proceeds in the Supreme Court, but recovers a remedy less than a specified value,78 will recover costs only on a limited basis.79

75 Supreme Court Act 1933 (ACT) ss 3 and 20; Supreme Court Act (NT) ss 10 and 12, Pt II Div 2. 76 Magistrates Court Act 1930 (ACT) s 4 and Pt 4.2 ; Local Court Act (NT) ss 4 and 5 and Pt III. 77 Magistrates Court Act 1930 (ACT) s 257 ($250,000); Local Court Act (NT) ss 3 and 12 ($250,000). 78 ACT: $175,000 (not the same as the jurisdictional limit of the Magistrates Court); NT: the jurisdictional limit of the Local Court (currently $250,000). Court Procedures Rules 2006 (ACT) r 1725(1)(c); Supreme Court Rules (NT) r 63.22(1)(b). 79 Court Procedures Rules 2006 (ACT) r 1725; Supreme Court Rules (NT) r 63.22 .

4.44 Most Australian jurisdictions have a variety of specialist courts, or specialist lists within a single court. Even to list the alternative courts and specialist lists would be an unduly lengthy exercise; however, it is common for there to be separate courts, or divisions, or procedural rules, for claims in probate, and land and environmental matters.

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Australian originating processes — a diversity of approaches

4.45 Across Australian jurisdictions, there is a diversity of methods for commencing proceedings. The diversity arises because there are different approaches to two features of originating process.

Originating process and the type of proceedings

4.46 For the purpose of commencement, a distinction may be drawn between two types of proceedings. First, there are proceedings in which there exists a dispute of fact between plaintiff and defendant. In such proceedings, it is necessary for the parties to prepare pleadings to identify the factual basis for their claim or defence, and the areas of dispute. Discovery and other evidence-gathering processes are necessary in order to lay the factual foundations for the case. Finally, the proceedings will necessarily culminate in a trial, at which each party may present its evidence and challenge the evidence of its opponent.

4.47 Secondly, there are proceedings in which there is no dispute of fact. For example, the entire claim may turn on the construction of a legal document such as a contract, or the proper interpretation of a legislative instrument. Or there may be no opposing party, such as where a person makes an application to court for a declaration of their rights or obligations. In such proceedings, pleadings, evidence-gathering processes and even a trial are unnecessary.

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4.48 The English Rules of the Supreme Court (from which Australian rules of court were adopted) provided for different originating processes for these different forms of proceedings. In short, proceedings involving a dispute of fact were termed‘actions’, and were commenced by writ of summons.80 Other proceedings were termed ‘matters’, and were commenced by originating summons or petition.81 The current English Civil Procedure Rules (CPR) continue to specify different forms of originating process for different types of proceedings.82

80 1875 Rules O I r 1; Supreme Court of Judicature Act 1873 s 100. 81 An originating summons was the originating process for a variety of proceedings which had, as a common feature, that there was no dispute of fact which needed to be resolved by trial; for example, an order for an injunction would be sought by originating summons (1875 Rules, O LIV. See also the explanation of the circumstances in which originating summons would be used in Jowitt’s Dictionary of English Law, 1959, ‘Summons’ and ‘Originating Summons’). These proceedings would be heard in chambers. A petition was the originating process in appeals to the Privy Council and the House of Lords, and in matrimonial and bankruptcy matters: Jowitt’s Dictionary of English Law, 1959, ‘Petition’. Finally, a motion was the means for making an oral interlocutory application to a judge, with prior notice: 1875 Rules, O LIII. 82 See generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 4, ‘Commencement’.

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4.49 In Australia, there is presently a diversity of approaches to the issue of distinguishing proceedings at the point of the originating process. In some jurisdictions, there is a single form of originating process for commencing all forms of proceedings. In other jurisdictions, there are two forms of originating process, and the choice of originating process will depend on the type of proceedings.

Originating process and pleadings

4.50 Australian jurisdictions also differ in their approach to a second feature of the originating process. Under the English Rules of the Supreme Court (from which Australian rules of court were adopted), a writ was required, in all cases, to have an endorsement of claim.83 In most cases, the endorsement was in a general form,84 which required the plaintiff to identify the nature of the claim only in the most general terms; it was unnecessary to identify the specific claim or the remedy sought.85

Page 152 The particulars of the claim were provided in the statement of claim, which was served on the defendant separately, after it had entered its appearance.86 Thus, the originating process and the pleadings were separate documents.

83 1875 Rules O III r 1. 84 In six limited categories of claim, a plaintiff could instead choose to make a special endorsement of claim: see 1875 Rules, O III r 6. There were standard forms of special endorsement for these six types of claim: see Appendix A,Pt II, s VII. An endorsement for account could be made where there was a claim of that nature: see O III r 8. For an explanation of the different forms of endorsement (and the consequences of choosing between a special and a general endorsement), see W B Odgers, The Principles of Pleading in Civil Actions under the Judicature Acts, Stevens & Sons, London, 1892, Ch VI, pp 106–15. Later, a fourth type of endorsement of claim was introduced: an endorsement for trial without pleadings; for a discussion of the four types of endorsement and the principles which had developed as to their application by the early twentieth century, see generally W B Odgers, The Principles of Procedure Pleading and Practice in Civil Actions in the High Court of Justice, 5th ed, Stevens & Sons, London, 1903, Ch III, pp 34–51. 85 1875 Rules O III r 2; see also r 3. Part 2 of Appendix A to the rules identified standard forms for the endorsement of claim. For example, the standard general endorsement for a claim for goods sold was simply ‘The plaintiff’s claim is l for the price of goods sold’ (see Section II(1)). 86 1875 Rules O XII r 1 and O XIX r 2.

4.51 Again, there is presently a diversity of approaches in Australia to the relationship between the originating process and the pleading. Some jurisdictions continue to make provision for the originating process, by which proceedings are commenced,to be separate from the statement of claim, in which the plaintiff sets out the basis for its claim. In other jurisdictions, a single document is used by the plaintiff to commence proceedings and plead its case. In these jurisdictions, it should be borne in mind that the originating document is serving two purposes: to commence proceedings, and define the issues.

Diversity within jurisdictions

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4.52 In addition to the diversity between jurisdictions, it must be emphasised that within each jurisdiction, there is a diversity of approaches to the originating process. First,even within the Supreme Court of each state or territory, there are specialist jurisdictions with particular rules and forms applicable to proceedings in that jurisdiction. For example, all jurisdictions have separate rules for proceedings commenced under the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001 (Cth).87 Some jurisdictions have additional specialist jurisdictions — for example, for proceedings concerning probate, adoption, admiralty, land and valuation, and miscellaneous other specialist areas. Secondly, as noted earlier, in most jurisdictions,the Supreme Court, lower courts and administrative tribunals each have separate rules.

87 Federal Court (Corporations) Rules 2000 (Cth); Supreme Court (Corporations) Rules 1999 (NSW); Uniform Civil Procedure Rules 1999 (Qld) Sch 1A;Corporations Rules 2003 (SA); Supreme Court (Corporations) Rules 2013 (Vic); Supreme Court (Corporations) (WA) Rules 2004; Tasmania has adopted the Federal Court (Corporations) Rules 2000 (Cth): see Supreme Court (Corporations) Rules 2008 (Tas) r 4.

The difficulties of diversity

4.53 The diversity of approaches between Australian jurisdictions as to the means of commencing proceedings is an undesirable phenomenon. In England, the process of commencing proceedings has been greatly simplified under the CPR.88 Lord Woolf’s report which led to the introduction of the CPR regretted the fact that there were four forms of originating process in the High Court, and a further four in the County Court — a total of eight, although some originating processes had several forms.89 Across Australia, there are far more types of originating process, and yet at present there seems to be little demand for uniformity.

88 See generally A Zuckerman, Civil Procedure, LexisNexis, London, 2003, [3.11]. 89 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, 1996, Ch 12, [2].

4.54 Not only are the forms for commencing proceedings vastly different in some circumstances, but terminology is also inconsistent between the states. For example,

Page 153 Tasmania and Western Australia expressly retain the concept of an action being any proceedings commenced by writ90 — connoting proceedings which involve disputed facts and two opposing parties, which are therefore likely to proceed to a trial. On the other hand, South Australia has adopted a definition of ‘action’ which entails any proceedings in which a plaintiff ‘asks the Court to make a final determination of a justiciable issue or to exercise any other power vested in the Court’91 — all ‘actions’ are then commenced in the same manner. The effort to simplify procedure by streamlining the manner in which proceedings are commenced is to be applauded. However, where reform takes place on a state-by-state basis, the result of simplifying procedure in one state is to create even further diversity across the federation.

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90 Supreme Court Rules 2000 (Tas) r 88; see also the definition of ‘action’ in r 5; Rules of the Supreme Court 1971 (WA) O 4 r 1(a). In Western Australia, action, cause, matter and suit are defined in the Supreme Court Act 1935 (WA) in terms which reflect those used in the Judicature Acts. 91 Supreme Court Civil Rules 2006 (SA) r 28(1).

4.55 The trend in the Australian legal profession has been towards greater mobility of lawyers between jurisdictions; this is reflected in rules of court which grant rights of audience to practitioners holding practising certificates in other Australian jurisdictions. The diversity of approaches, and the diversity of basic terminology, is likely to be productive of confusion and error for practitioners acting outside their jurisdiction of origin and therefore inhibit multijurisdictional practices.

Australian originating processes — the formalities

4.56 This section will address originating processes in the Supreme Court of each state or territory, and the Federal Court, under the standard rules of court. As discussed in the previous section, the originating process takes many different forms between jurisdictions, and between different courts and divisions within each jurisdiction. It is therefore important to identify the rules and forms which are applicable to a claim.

4.57 Most Australian jurisdictions require that the originating process be filed in a particular form. Some rules of court prescribe different forms for the different forms of originating process. There are also different forms for different jurisdictions within the same court. Accordingly, care must be taken to ensure that the correct form is used for commencing proceedings. A discussion of the requirements of every form of originating process is beyond the scope of this text. However, in the following section, the principal sorts of information which are required to be provided on the standard originating process in each jurisdiction will be identified.

4.58 In some jurisdictions, the statement of claim is the originating process. Consequently, the rules concerning pleadings will also be relevant in preparing the originating process. Those rules are dealt with separately in Chapter 7. Many jurisdictions also have general rules concerning the preparation and filing of documents.92 These rules will not be considered here, but must be complied with insofar as they apply to originating processes.

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92 See, for example, Federal Court Rules 2011 (Cth) Ch 1 Pt 2 Div 2.2; Court Procedures Rules 2006 (ACT) Pt 6.3; Uniform Civil Procedure Rules 2005 (NSW) Pt 4 Div 1; Supreme Court Civil Supplementary Rules (SA) r 46; Supreme

Page 19 of 50 Chapter 4 Commencement of Proceedings Court Rules 2000 (Tas) Pt 7 Div 1; Rules of the Supreme Court 1971 (WA) O 69; see also West Australian Consolidated Practice Directions, PD 1.2, especially 1.2.1–1.2.3.

Federal Court Forms of originating process

4.59 All proceedings in the original jurisdiction of the Federal Court are commenced by filing an originating application, which must be substantially in accordance with the approved form.93

93 Federal Court Rules 2011 (Cth) r 8.01(1). All documents filed in the Federal Court must be ‘in accordance’ with any approved form, which will be satisfied if the document substantially accords with the forms, or contains only such variations as the case requires: see rr 2.11 and 2.12.

Content of originating process

4.60 The originating application must identify the relief claimed, and the provision of any legislation under which the claim is made.94 Further endorsements are required where the relief sought is in the nature of interlocutory relief, an injunction, a declaration, or exemplary damages.95 The rules make express that no claim for costs is necessary.96

94 Federal Court Rules 2011 (Cth) r 8.03(1). 95 Federal Court Rules 2011 (Cth) r 8.03(2). 96 Federal Court Rules 2011 (Cth) r 8.03(3).

4.61 Originating applications must include the applicant’s name and address, and address for service, as well as a statement of the fact that the applicant is suing in a representative capacity (if necessary).97

97 Federal Court Rules 2011 (Cth) r 8.01(2).

4.62

Page 20 of 50 Chapter 4 Commencement of Proceedings An originating application must be accompanied by either a statement of claim or an affidavit, unless the claim seeks relief in the form of damages, in which case a statement of claim substantially in the approved form is mandatory.98

98 Federal Court Rules 2011 (Cth) r 8.05; see also rr 2.11 and 2.12.

4.63 The originating application and statement of claim or affidavit must be served at least five days before the return date.99 The return date is the date of the first court hearing concerning the application. The return date, and the location of the hearing, will be set by the registrar, who will endorse the application with those details.100

99 Federal Court Rules 2011 (Cth) r 8.06. 100 Federal Court Rules 2011 (Cth) note 1 to r 8.05.

Australian Capital Territory Forms of originating process

4.64 There are two forms of originating process in the Australian Capital Territory: the originating claim, and the originating application.101

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101 Court Procedures Rules 2006 (ACT) r 31.

4.65 An originating application must be used for certain types of proceedings identified in the rules and legislation.102 It is the default form of originating process where legislation entitles a person to seek relief from the court, but does not specify the form of originating process.103 Originating applications may also be used where the main issue is a question of law (including the interpretation of legislation or a document), where there is no defendant, or where relief is sought on an urgent basis.104

102 Court Procedures Rules 2006 (ACT) r 34(1).

Page 21 of 50 Chapter 4 Commencement of Proceedings 103 Court Procedures Rules 2006 (ACT) r 34(2). 104 Court Procedures Rules 2006 (ACT) r 35.

4.66 In all other circumstances, an originating claim must be used.105 Where the incorrect originating process has been used, the court may order that the proceedings be continued as if they had been correctly commenced, and may also make consequential orders to enable the continuation of the proceedings in their proper form.106

105 Court Procedures Rules 2006 (ACT) r 33. 106 Court Procedures Rules 2006 (ACT) rr 38 and 39.

4.67 Proceedings are taken to have commenced on the day that the originating process is filed,107 even if the originating process is initially rejected,108 or is dismissed and later renewed. There are provisions for determining the date of filing, which is contingent on whether the originating process is filed in person, by post, by fax or electronically.109

107 Court Procedures Rules 2006 (ACT) r 32. 108 Court Procedures Rules 2006 (ACT) r 6145. 109 Court Procedures Rules 2006 (ACT) r 6126.

4.68 All originating processes are valid for service for one year from the date of filing, although the plaintiff may apply for a renewal of the originating process if the defendant has not been served despite reasonable efforts, or there is other good reason.110 A proceeding will be taken to be dismissed after a year if none of the ordinary steps which follow service have been taken,111 although it may be reinstated upon application.112

110 Court Procedures Rules 2006 (ACT) r 74. 111 Court Procedures Rules 2006 (ACT) r 75. 112 Court Procedures Rules 2006 (ACT) r 76.

Content of originating process

4.69

Page 22 of 50 Chapter 4 Commencement of Proceedings Approved forms are available for originating claims and originating applications, which prompt the drafter to include all necessary information. The approved forms are not mandatory, but the general rules as to the preparation of documents require the drafter to follow approved forms in matters of both content and style.113

113 Court Procedures Rules 2006 (ACT) Pt 6.3, particularly rr 6101 and 6102.

Content of originating claim

4.70 A statement of claim must be filed with the originating claim; nevertheless, the originating claim must contain a statement identifying briefly the nature of the claim

Page 156 and relief sought.114 The originating claim must also state any question upon which the court’s decision or direction is sought.115 Claims for exemplary or aggravated damages or interest must also be stated specifically.116

114 Court Procedures Rules 2006 (ACT) r 50(1) and (2). 115 Court Procedures Rules 2006 (ACT) r 50(7). 116 Court Procedures Rules 2006 (ACT) r 50(5).

4.71 The originating claim must identify whether the plaintiff is legally represented (and the identity of any solicitor), and whether any party is acting in a representative capacity.117 The plaintiff’s address for service must also be provided.118

117 Court Procedures Rules 2006 (ACT) r 50(4). 118 Court Procedures Rules 2006 (ACT) r 50(4).

4.72 There are additional endorsements which are required on claims for debts or liquidated demands,119 and for personal injury and death claims arising from motor vehicle accidents120 or the negligence or breach of statutory duty of an employer.121 Additional endorsements are required where the claim is brought in the Magistrates Court.122

119 Court Procedures Rules 2006 (ACT) rr 50(6) and 51.

Page 23 of 50 Chapter 4 Commencement of Proceedings 120 Court Procedures Rules 2006 (ACT) r 52. 121 Court Procedures Rules 2006 (ACT) r 53. 122 Court Procedures Rules 2006 (ACT) r 50(3); see also r 55.

Content of originating application

4.73 An originating application must be endorsed with a statement of the orders or relief sought, and must identify the affidavits which the plaintiff intends to rely on in support of its claim.123 It must identify the statute (if any) under which the application is made.124 The return date must also be specified.125 The return date is the date on which the application will first be before the court; this date is set by the court.126

123 Court Procedures Rules 2006 (ACT) r 60(3) and (4). 124 Court Procedures Rules 2006 (ACT) r 60(8). 125 Court Procedures Rules 2006 (ACT) r 60(9). 126 Court Procedures Rules 2006 (ACT) Dictionary.

4.74 It must identify whether the plaintiff is legally represented (and the identity of any solicitor), and whether any party is acting in a representative capacity.127 The plaintiff ’s address for service must also be provided.128 Where the claim is brought in the Magistrates Court, it is also necessary for the originating application or supporting affidavits to demonstrate that the court has jurisdiction.129

127 Court Procedures Rules 2006 (ACT) r 60(7). 128 Court Procedures Rules 2006 (ACT) r 60(7). 129 Court Procedures Rules 2006 (ACT) r 60(6).

4.75 An originating application may be made orally to the Supreme Court, where it is necessary (for example, in circumstances of urgency).130

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130 Court Procedures Rules 2006 (ACT) r 37.

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New South Wales Forms of originating process

4.76 There are two forms of originating process in New South Wales: the statement of claim, and the summons.131 The rules identify categories of proceedings which must be commenced by statement of claim; these include proceedings arising from claims in tort, for breach of duty, for debts and other liquidated claims, for defamation and for possession of land, amongst other claims.132 Certain categories of proceedings must be commenced by summons, including matters which are intended to be listed in the commercial or technology and construction lists, proceedings in which there is no defendant, stated cases, and proceedings(other than claims for damages) under any legislation.133 Outside those specified categories, the plaintiff can choose whether to proceed by summons or statement of claim, although a summons will be the more appropriate originating process if the facts are likely to be uncontested, or the matter is likely to turn on the construction of legislation or documents, or other questions of law.134 Where the incorrect originating process has been used, the court may order that the proceedings be continued as if they had been correctly commenced, and may also make consequential orders to enable the continuation of the proceedings in their proper form.135

131 Uniform Civil Procedure Rules 2005 (NSW) r 6.2. 132 Uniform Civil Procedure Rules 2005 (NSW) r 6.3. 133 Uniform Civil Procedure Rules 2005 (NSW) r 6.4(1) and (3). 134 Uniform Civil Procedure Rules 2005 (NSW) rr 6.2(2) and 6.4(4). 135 Uniform Civil Procedure Rules 2005 (NSW) rr 6.5 and 6.6.

4.77 The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) do not prescribe the use of particular forms. However, there is a set of forms approved by the UCPR committee for use in proceedings under the UCPR, which prompt the drafter to include all necessary information. The choice of form will depend on the originating process used, and whether the plaintiff is represented.

4.78 Proceedings commence on the date of filing, and the date for service is calculated from that day.136 The validity of the originating process depends on the jurisdiction. For matters in the Supreme Court, the originating process is valid for six months after filing.137 Where the originating process is a summons, though, it must usually be served five or more days before the return date (that is, the date on which the proceedings are first before the court).138

136 Uniform Civil Procedure Rules 2005 (NSW) r 6.2(1) and (4). 137 Uniform Civil Procedure Rules 2005 (NSW) r 6.2(4). 138 Uniform Civil Procedure Rules 2005 (NSW) r 6.15(3); see also r 6.15(5) where the summons is to be served outside New South Wales.

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Content of originating process

4.79 The originating process must state specifically the relief claimed, and any question for which the plaintiff requires determination or the direction of the court.139

Page 158 Certain claims for costs, interest, exemplary and aggravated damages must also be claimed in specific terms.140 There are certain formal requirements for the content of originating processes, including information about the proceedings, the court in which they are to be conducted, the addresses of the parties, the plaintiff ’s address for service and the details of the plaintiff ’s solicitor.141

139 Uniform Civil Procedure Rules 2005 (NSW) r 6.12(1) and (2). 140 Uniform Civil Procedure Rules 2005 (NSW) r 6.12(3)–(8). 141 Uniform Civil Procedure Rules 2005 (NSW) Pt 4 r 4.2.

4.80 A document is taken to be filed at the time at which it is lodged for filing.142 Hard copies may be lodged in person or by sending to the registry by post.143 The registry will assign a case number and endorse it on the originating process, as well as sealing any copies for service on the defendants.144 There is also provision for electronic filing of documents.145

142 Uniform Civil Procedure Rules 2005 (NSW) Pt 4 r 4.10(3). 143 Uniform Civil Procedure Rules 2005 (NSW) Pt 4 r 4.10(1). 144 Uniform Civil Procedure Rules 2005 (NSW) Pt 4 rr 4.11 and 4.12. 145 See generally Uniform Civil Procedure Rules 2005 (NSW) Pt 3.

4.81 The UCPR require that a statement of claim contain a notice to the defendant that a judgment or order may be entered against it if it fails to file a defence, and must also state the time within which the defence must be filed and the address of the registry.146

146 Uniform Civil Procedure Rules 2005 (NSW) Pt 6 r 6.13.

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4.82 Where the originating process is a summons, a notice to the defendant is required that judgment may be entered against them if they fail to attend at the time and place nominated in the summons, and that they must file a notice of appearance before attendance.147 The summons must also give the address of the place at which attendance is required, and a return day fixed by the court or registry.148

147 Uniform Civil Procedure Rules 2005 (NSW) Pt 6 r 6.14(a) and (b). 148 Uniform Civil Procedure Rules 2005 (NSW) Pt 6 rr 6.14(c) and 6.15.

Northern Territory Form of originating process

4.83 Proceedings in the Northern Territory are ordinarily commenced by writ or originating motion.149 An originating motion must be used where there is no defendant, or where it is required by legislation or the rules,150 and it may be used where a substantial dispute of fact is unlikely (and therefore no need for pleadings and discovery).151 In all other cases, proceedings must be commenced by writ.152 Where a proceeding is incorrectly commenced by originating motion, the court may order that it continue as if it had been commenced by writ, and make consequential orders.153 There is no equivalent provision where proceedings are incorrectly commenced by writ.

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149 Supreme Court Rules (NT) r 4.01. 150 Supreme Court Rules (NT) r 4.05. 151 Supreme Court Rules (NT) r 4.06. 152 Supreme Court Rules (NT) r 4.04. 153 Supreme Court Rules (NT) r 4.07.

4.84 All originating processes must be in the prescribed form; there is one form of writ, and four forms of originating motion, depending on the nature of the application and whether there is a defendant.154

154 Supreme Court Rules (NT) r 5.02; Sch 1, Forms 5A–5E.

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Content of originating process

4.85 All originating processes must, if there is a defendant, be endorsed with a statement notifying the defendant that if it does not file an appearance within the time required, judgment may be entered against it with no further notice.155 The time for the defendant to enter an appearance will also be stated on the originating process, and is contingent on the place where service is to be effected.156

155 Supreme Court Rules (NT) r 5.03(1). 156 Supreme Court Rules (NT) r 5.03(2) (but see also (3)) and r 8.04.

4.86 If any party is acting in a representative capacity, the originating process must contain an endorsement to that effect.157 All originating processes must also be endorsed with the address of the plaintiff (and an address for service in the Northern Territory, if necessary), the addresses of the defendants, and the name and address of the plaintiff ’s solicitor and solicitor’s agent (if any).158 They must also be signed.159

157 Supreme Court Rules (NT) r 5.06. 158 Supreme Court Rules (NT) r 5.07. 159 Supreme Court Rules (NT) r 5.11(2).

4.87 If it is intended that the trial will take place in a location other than Darwin, the writ must identify the desired place of trial; an originating motion may also contain such an endorsement.160

160 Supreme Court Rules (NT) r 5.08.

4.88 The writ must be endorsed with either a statement of claim (identified as such), or a statement ‘sufficient to give, with reasonable particularity, notice of the nature of the claim and the cause of the claim and of the relief or remedy sought in the proceeding’.161 Particular endorsements are required on the writ where the proceedings are for a debt only.162

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161 Supreme Court Rules (NT) r 5.04. 162 Supreme Court Rules (NT) r 5.09.

4.89 The originating motion must identify the relief or remedy sought, the legislation under which the claim is made, and any question which is to be answered.163 If the originating motion seeks the construction of a document, then a copy or extract of that document must be lodged with the originating motion.164

163 Supreme Court Rules (NT) r 5.05. 164 Supreme Court Rules (NT) r 5.11(4).

4.90 Proceedings are commenced when the originating process is filed at the registry. The registry official will seal copies for service and proof of service.165 All originating

Page 160 processes are valid for service for one year from the date of filing, although they may be renewed on application to the court.166

165 Supreme Court Rules (NT) r 5.11(1)–(3). 166 Supreme Court Rules (NT) r 5.12.

Queensland Forms of originating process

4.91 Proceedings at first instance are commenced either by claim or application.167 Where legislation entitles a plaintiff to seek relief from the court, but does not identify the form of originating process, an application must be used.168 An application is permitted if the proceedings turn on an issue of law rather than fact, or there is no defendant, or the claim is of an urgent nature.169 In all other cases, a claim is the appropriate form of originating process.170 Proceedings are taken to have been commenced when the originating process is issued.171

167 Uniform Civil Procedure Rules 1999 (Qld) r 8(2). 168 Uniform Civil Procedure Rules 1999 (Qld) r 10.

Page 29 of 50 Chapter 4 Commencement of Proceedings 169 Uniform Civil Procedure Rules 1999 (Qld) r 11. 170 Uniform Civil Procedure Rules 1999 (Qld) r 9. 171 Uniform Civil Procedure Rules 1999 (Qld) r 8(1).

4.92 Where the incorrect originating process has been used, the court may order that the proceedings be continued as if they had been correctly commenced, and may also make consequential orders to enable the continuation of the proceedings in their proper form.172

172 Uniform Civil Procedure Rules 1999 (Qld) rr 13 and 14.

4.93 All originating processes must contain certain contact details for the plaintiff and its solicitor (if any); the rules identify which of these will be treated as the address for service.173 The originating process must be signed by the plaintiff and any solicitor.174 All originating processes must identify whether any party is acting in a representative capacity.175

173 Uniform Civil Procedure Rules 1999 (Qld) r 17. 174 Uniform Civil Procedure Rules 1999 (Qld) r 19. 175 Uniform Civil Procedure Rules 1999 (Qld) r 18.

Content of claim

4.94 A claim must be in the approved form, and attach a statement of claim. It must also state briefly the nature of the claim and relief sought. Additional endorsements are required where the claim is to be filed in the District or Magistrates Court.176 The claim must also contain a notice to the defendant stating the time for filing a notice of intention to defend, and warning that a failure to file such a notice could lead to default judgment without further notice.177

176 Uniform Civil Procedure Rules 1999 (Qld) r 22. 177 Uniform Civil Procedure Rules 1999 (Qld) r 23.

4.95

Page 30 of 50 Chapter 4 Commencement of Proceedings A claim is valid for one year from the date of filing, although it may be renewed by the registrar if the defendant has not been served despite reasonable efforts, or if

Page 161 there is some other good reason. A renewal beyond five years from the date of filing is only permitted by court order.178

178 Uniform Civil Procedure Rules 1999 (Qld) r 24.

Content of application

4.96 Applications must be in the approved form. An application must identify the orders or relief sought, the section of any legislation under which the application is made, and the affidavits on which the applicant will rely. Additional endorsements are required where the claim is to be filed in the District or Magistrates Court.179

179 Uniform Civil Procedure Rules 1999 (Qld) r 26.

4.97 Applications must be served at least three business days before the application is heard, although there are exceptions to this rule.180 Oral applications are permitted in limited circumstances.181

180 Uniform Civil Procedure Rules 1999 (Qld) r 27. 181 Uniform Civil Procedure Rules 1999 (Qld) r 12.

South Australia Forms of originating process

4.98 All primary actions in South Australia are commenced by summons, unless there is a specific rule to the contrary.182 The South Australian rules define an ‘action’ in idiosyncratic terms, as any proceeding (other than interlocutory or appellate proceedings) in which a plaintiff ‘asks the Court to make a final determination of a justiciable issue or to exercise any other power vested in the Court’.183 A fresh action is termed a ‘primary action’, and cross-actions and third party actions are referred to as ‘secondary actions’.184 A primary action is commenced at the time that the originating process is filed at the court.185

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182 Supreme Court Civil Rules 2006 (SA) r 34. 183 Supreme Court Civil Rules 2006 (SA) r 28(1). 184 Supreme Court Civil Rules 2006 (SA) r 28(2). Secondary actions are further described in r 29. 185 Supreme Court Civil Rules 2006 (SA) r 34(2).

4.99 The summons must be in the approved form;186 separate forms for the summons are provided where there is no defendant, or where a specific hearing date has been set.187

186 Supreme Court Civil Rules 2006 (SA) r 34(3). 187 Supreme Court Civil Supplementary Rules 2014 (SA) r 35; Sch 3, Forms 4–6.

Content of originating process

4.100 All originating processes are subject to the same rules concerning content.188 If an extension of the time for filing is sought under the Limitation of Actions Act 1936 (SA), that must be endorsed on the originating process. Primary and third party actions must be endorsed with the time allowed for service. Representative capacity must also be endorsed.

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188 Supreme Court Civil Rules 2006 (SA) r 38.

Tasmania Forms of originating process

4.101 The Tasmanian rules provide a detailed list of the types of proceedings which must be commenced by writ (actions),189 and those which must be commenced by application to either the court, or to a judge in chambers.190 This is unlike the scheme of other rules, which generally list the sorts of proceedings which must or may be commenced by application, and then treat the writ as the default originating process. Failure to use the correct originating process does not invalidate the proceedings;191 the court can order that the proceedings continue as if they had been commenced correctly, and make consequential orders to effect the change.192

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189 Supreme Court Rules 2000 (Tas) r 88; see also the definition of ‘action’ in r 5. 190 Supreme Court Rules 2000 (Tas) rr 89 and 90 respectively. See also r 92, for multiple claims. 191 Supreme Court Rules 2000 (Tas) r 15. 192 Supreme Court Rules 2000 (Tas) r 95.

4.102 All originating processes must contain a title indicating the court and the registry in which the proceedings are to be conducted, and the file number.193 Writs and originating applications must all state the address of the defendant (or the fact that it is unknown) and the address of the plaintiff and its legal representative (if any).194 There is provision for identifying the addresses for service of the parties.195 Writs and originating applications must be prepared in the approved form.196

193 Supreme Court Rules 2000 (Tas) r 97. 194 Supreme Court Rules 2000 (Tas) rr 100 and 101. 195 Supreme Court Rules 2000 (Tas) r 128. 196 Supreme Court Rules 2000 (Tas) rr 104 and 118.

Content of writ

4.103 A writ may be endorsed with either a statement of claim, or a concise statement of the nature of the claim and the relief sought.197 Different endorsements are required if the claim is for a debt or liquidated demand.198 There are specific additional requirements for endorsements for claims for the recovery of land,199 for detinue,200 for account,201 for defamation202 and for unliquidated damages.203 Uniquely amongst the rules of court, the Tasmanian rules expressly provide that a claim of general relief is unnecessary.204 The rules require that if any party is acting in a representative capacity, the writ must be endorsed to that effect.205

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197 Supreme Court Rules 2000 (Tas) r 108(1)(b). 198 Supreme Court Rules 2000 (Tas) r 108(1)(a), (2). 199 Supreme Court Rules 2000 (Tas) rr 108(3) and 112. 200 Supreme Court Rules 2000 (Tas) r 113. 201 Supreme Court Rules 2000 (Tas) r 114. 202 Supreme Court Rules 2000 (Tas) r 115. 203 Supreme Court Rules 2000 (Tas) r 116. 204 Supreme Court Rules 2000 (Tas) r 110. 205 Supreme Court Rules 2000 (Tas) r 111.

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4.104 A writ is taken to be issued when it is filed and sealed.206 Upon filing, the registry official will mark each copy of the writ with the year and number of the writ.207 A writ is valid for 12 months from the date of issue, although the court may order that it be renewed, on the application of the plaintiff.208

206 Supreme Court Rules 2000 (Tas) r 105. 207 Supreme Court Rules 2000 (Tas) r 106. 208 Supreme Court Rules 2000 (Tas) r 107.

Content of originating application

4.105 Originating applications are commenced when they are filed and sealed.209 In addition to the requirements of the approved form, there are additional endorsements required for certain types of application, or where it is intended that oral evidence will be led at the hearing of the application.210 The time for service of an originating application depends on whether an appearance is required, and where it is to be served.211

209 Supreme Court Rules 2000 (Tas) r 119. 210 Supreme Court Rules 2000 (Tas) rr 120 and 121. 211 Supreme Court Rules 2000 (Tas) r 123.

Victoria Forms of originating process

4.106 Proceedings in Victoria are usually commenced by writ or originating motion.212 The circumstances in which a plaintiff may commence by originating motion are identified in the rules. First, an originating motion is required where there is no defendant, or where an application is authorised to be made to the court, or where it is otherwise required by the rules.213 Secondly, a plaintiff may choose to commence by originating motion if it is unlikely that there will be a dispute of fact — and thus it is appropriate to proceed without pleadings or discovery.214 Outside those circumstances, proceedings must be commenced by writ.215 Proceedings commenced by originating motion can be continued as if they had been commenced by writ, if it would be more convenient or if the plaintiff has made an error in commencing proceedings,216 and an originating process will not be set aside on the basis that the incorrect process was chosen.217

212 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.01.

Page 34 of 50 Chapter 4 Commencement of Proceedings 213 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.05(1). 214 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.06. 215 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.04(1). Separate provision is made for the commencement of appeals (r 58.07) and administrative reviews (r 1.12). 216 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.07(1). 217 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 2.02.

4.107 The originating process must be in the prescribed form. Different forms are provided for writs and the various types of originating motion, and a separate form is provided for an originating process which is to be filed electronically.218

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218 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.02.

4.108 Filing the originating process commences the proceedings.219 The originating process will be treated as filed when it has been received, sealed and dated by a court official, although there are separate provisions where filing has taken place electronically.220 The originating process must be signed by the plaintiff’s solicitor (or the plaintiff themselves, if they are unrepresented).221 Where the originating process has been filed in hard copy, a court official will seal copies to be served.222

219 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(1). 220 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(1.1), and see also r 5.11(5). 221 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(2); see also r 28A.08 where the originating process has been filed in RedCrest. 222 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(3), and see r 5.11(3.1).

4.109 The originating process may be served at any time within a year of filing, and the period of validity of the writ may be extended beyond a year on the application of the plaintiff.223 Such applications are usually heard in the absence of the defendant, unless the court orders otherwise.224

223 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(1)–(3) and (5). See also rr 3.01, 3.02 and 3.04, which are general provisions for calculating, extending and abridging time.

Page 35 of 50 Chapter 4 Commencement of Proceedings 224 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(4).

Content of originating process

4.110 In Victoria, any originating process to which there is a defendant must be endorsed with a statement notifying the defendant that if it fails to file an appearance within the requisite time, judgment may be entered against it with no further notice.225 The time for appearance must be stated in the originating process, and depends on the location where the originating process is to be served.226

225 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.03. Note that r 5.03(3) makes separate provision for an originating motion under O 53 or O 56. 226 Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.03(2) and 8.04.

4.111 If a party to the proceedings is acting in a representative capacity, the originating process must be endorsed with a statement to that effect.227 The address of the plaintiff and any defendant, and an address for service for the plaintiff within Victoria, must be endorsed on the originating process, as well as an email address for service on the plaintiff.228 If the plaintiff is represented, the name and address of the solicitor must also be endorsed.229

227 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.06. 228 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.07(1)(a), (b) and (d) (the requirement for an email address for service, contained in r 5.07(1)(d), was introduced on 1 August 2017). 229 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.07(1)(c).

4.112 The default position is that a trial will take place in Melbourne, without a jury.230 If a plaintiff wishes to have alternative arrangements, the place of trial — and, if proceedings are commenced by writ, the mode of trial — must be endorsed on the originating process.231

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230 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.08(2) and (3). 231 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.08(1) and (3).

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4.113 A writ must contain an endorsement of claim. An endorsement of claim can take two forms. First, the endorsement may be a statement of claim.232 Alternatively, the plaintiff may give only ‘a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding’.233 An originating motion must also contain an endorsement of claim, identifying the remedy sought, any legislation relied on for the claim, and any question to be answered by the court.234 Additional endorsements are required where the claim is for a debt only.235

232 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.04(2)(a) and (3). 233 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.04(2)(b). 234 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.05. 235 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.09(1).

4.114 If an originating motion seeks the construction of a document, that document must be filed with the originating motion.236

236 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(4) and (4.1).

Western Australia Forms of originating process

4.115 There are three forms of originating process in Western Australia: actions are commenced by writ,237 proceedings between parties which are to be heard in chambers are commenced by originating summons,238 and all other civil proceedings are commenced by originating motion.239

237 Action, cause, matter and suit are defined in the Supreme Court Act 1935 (WA) in terms which reflect those used in the Judicature Acts. 238 The rules identify some matters which can be commenced by summons: see Rules of the Supreme Court 1971 (WA) O 58 rr 2, 3, 10, 11, 13. 239 Rules of the Supreme Court 1971 (WA) O 4 r 1.

4.116

Page 37 of 50 Chapter 4 Commencement of Proceedings The writ must be in the approved form.240 Separate forms are provided for writs which are generally endorsed and those which are endorsed with a statement of claim, and a further form is provided for writs which are to be served outside Western Australia.241 Separate forms are prescribed for originating motions242 and originating summonses.243

240 Rules of the Supreme Court 1971 (WA) O 5 rr 1 and 2. 241 Rules of the Supreme Court 1971 (WA) Sch 2, Forms 1–3. 242 Rules of the Supreme Court 1971 (WA) O 54 r 5; Sch 2, Form 64. 243 Rules of the Supreme Court 1971 (WA) O 58 r 14(1); Sch 2, Forms 74 and 75. Separate forms are prescribed for proceedings in which an appearance is required, and those in which appearance is not required. In the event that an appearance is not required, the originating summons must identify either that it is not to be served on any person, or any persons upon whom it is intended to be served: O 58 r 14(6).

4.117 All originating processes are issued upon being sealed by a registry official.244 An originating process in the form of a writ or originating summons is valid for 12 months,

Page 166 although this period can be extended upon application to the court.245 However, if the writ or originating summons does not appear to have been served after six months, the court may call upon the plaintiff to show cause as to why it should not be struck out.246

244 Rules of the Supreme Court 1971 (WA) O 6 r 6; O 54 r 6; O 58 r 14(3). 245 Rules of the Supreme Court 1971 (WA) O 7 r 1; for the application of this rule to originating summonses, see O 58 r 15. 246 Rules of the Supreme Court 1971 (WA) O 7 r 4; for the application of this rule to originating summonses, see O 58 r 15.

Content of writ

4.118 The writ must contain a general endorsement, which identifies in concise terms the nature of the claim and the relief sought.247 In most cases, the plaintiff can choose to endorse the writ with a statement of claim.248 In addition, there are particular endorsements required for libel claims, or claims for debts or liquidated demands, or where the plaintiff seeks an account.249

247 Rules of the Supreme Court 1971 (WA) O 6 r 1. 248 Rules of the Supreme Court 1971 (WA) O 6 r 3. 249 Rules of the Supreme Court 1971 (WA) O 6 rr 2, 4 and 6.

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4.119 The writ must identify if any of the parties are acting in a representative capacity, with an endorsement in the prescribed form.250 It must show the proposed venue for trial if it is not intended to be held in Perth.251 The writ must show the time within which the defendant is required to appear; this time is contingent on the place where the defendant is served.252 It must also identify the address and address for service of each plaintiff.253

250 Rules of the Supreme Court 1971 (WA) O 6 r 6; Sch 2, Form 5. 251 Rules of the Supreme Court 1971 (WA) O 5 r 3. 252 Rules of the Supreme Court 1971 (WA) O 5 r 11. 253 Rules of the Supreme Court 1971 (WA) O 6 r 7.

Content of originating motion

4.120 Originating motions must be made in the prescribed form,254 and the notice of motion must usually be served at least two clear days before the date of hearing.255 The notice of motion must identify in concise terms the nature of the claim, or the relief sought.256

254 Rules of the Supreme Court 1971 (WA) O 54 r 5(1). 255 Rules of the Supreme Court 1971 (WA) O 54 r 4. 256 Rules of the Supreme Court 1971 (WA) O 54 r 5(3).

Content of originating summons

4.121 Civil proceedings which are to be heard in chambers must be commenced by originating summons.257 Proceedings seeking the construction of a written document (such as a will), and the declaration of the rights which arise from it, must be made by originating summons.258 Originating summonses must be in the prescribed form.259

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257 Rules of the Supreme Court 1971 (WA O 58 r 1. 258 Rules of the Supreme Court 1971 (WA) O 58 rr 10, 11 and 13. 259 Rules of the Supreme Court 1971 (WA) O 58 r 14.

Secondary claims — overview

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4.122 This chapter has, so far, dealt with the manner in which a plaintiff can commence proceedings against a defendant. However, once the primary proceedings are commenced, it is possible that secondary claims may be commenced within the framework of the original proceedings. These will be referred to collectively as ‘secondary claims’. Secondary claims can take a variety of forms: set-off, counterclaims, and third party claims, including claims for contribution and indemnity. This part of the chapter will explain the features of each type of secondary claim, before considering how these are treated in different Australian jurisdictions.

4.123 In all Australian jurisdictions, the court has the power to resolve all matters of law and equity between the parties to the original proceedings, and to grant relief to the defendant on claims related to the original proceedings. The ability of parties to bring secondary claims, and the court’s power to resolve all aspects of a dispute in one set of proceedings, can lead to more efficient conduct of the proceedings. For example, where a particular set of facts leads both the plaintiff and the defendant to assert that the other has acted in breach of contract, it is far more efficient for the court to resolve both claims in a single set of proceedings, rather than for the defendant to commence entirely fresh proceedings in relation to its claim. However, in all jurisdictions, the court also has the power to order that secondary claims be dealt with separately, where it would be inconvenient to the conduct of the primary proceedings.260

260 Federal Court Rules 2011 (Cth) r 9.06; Court Procedures Rules 2006 (ACT) rr 316 , 456(3)(a) and 471; Uniform Civil Procedure Rules 2005 (NSW) rr 6.22 and 9.8; Supreme Court Rules (NT), Os 9.04, 10.06 and 11.12(b)(ii); Uniform Civil Procedure Rules 1999 (Qld) rr 68, 182 and 203; Supreme Court Civil Rules 2006 (SA) rr 31 and 210(1); Supreme Court Rules 2000 (Tas) rr 179, 198 and 208; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 10.06 and 11.12(b)(ii); Rules of the Supreme Court 1971 (WA) O 18 r 5, O 19 r 4.

4.124 It must be emphasised that there is a diversity of approaches in Australian jurisdictions as to how to categorise secondary claims. For example, in some jurisdictions, all secondary claims (with the exception of set-off) are commenced in the same manner. In other jurisdictions, different processes are required for different types of secondary claim. There are also differences in terminology between jurisdictions. The types of secondary claim will be identified first, in general terms. The approach in each jurisdiction will then be addressed.

Set-off

4.125 Set-off is a defence, and so will be raised by the defendant against the plaintiff. In essence, it may arise where the plaintiff and the defendant each have liquidated claims against the other, and operates to reduce the quantum of the plaintiff’s claim against the defendant (to the extent of the amount set off). The defence of set-off has a long and complicated history in Australia.261 For present purposes, it is sufficient to identify the broad situations in which a defendant might wish to raise the defence.

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261 S R Derham, Derham on the Law of Set-off, 4th ed, Oxford University Press, Oxford, 2010, [2.63]–[2.86] (the statutes of set-off); [4.19]–[4.28] (equitable set-off).

4.126 At common law, set-off is only available where the plaintiff and defendant have claims for debts against each other. It is unnecessary that the debts arise from the same transaction, although it is necessary that the plaintiff and defendant owe each other money in the same capacity (for example, a debt owed by a party in a representative capacity could not be set off against a debt owed to the party in a personal capacity).262

262 S R Derham, Derham on the Law of Set-off, 4th ed, Oxford University Press, Oxford, 2010, Ch 11 (Mutuality).

4.127 Set-off in equity is not limited to mutual claims for debts; it might also arise where the defendant has a claim for liquidated damages against the plaintiff. However, unlike common law set-off, equitable set-off requires a connection between the facts giving rise to the claim and the facts giving rise to the claim for damages which is to be set off.263

263 See generally J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Sydney, 2014, Part 7.4 (Set-Off and Related Doctrines).

4.128 In all jurisdictions in Australia, the defence of set-off can be pleaded in the defence, irrespective of whether the amount in question is also sought in a counterclaim.264

264 Federal Court Rules 2011 (Cth) r 16.10; Court Procedures Rules 2006 (ACT) r 456; Uniform Civil Procedure Act 2005 (NSW) s 21; Supreme Court Rules (NT) r 13.14; Uniform Civil Procedure Rules 1999 (Qld) r 173; Supreme Court Civil Rules 2006 (SA) r 100(4); Supreme Court Rules 2000 (Tas) r 192; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.14; Rules of the Supreme Court 1971 (WA) O 20 r 17.

Counterclaims and third party proceedings

4.129

Page 41 of 50 Chapter 4 Commencement of Proceedings A defendant to proceedings may respond to the claim against it by commencing a counterclaim. A counterclaim is a claim which could be brought independently of the primary proceedings, but is commenced in the context of the secondary proceedings for reasons of efficiency. In most jurisdictions, a counterclaim may be brought against the plaintiff alone, or against the plaintiff and other persons (who will become parties to the proceedings by virtue of being defendants to the counterclaim). It may relate to the same transaction as the original proceedings. For example, if a plaintiff claims for the cost of goods, the defendant might counterclaim for damages for late delivery or for defects. On the other hand, the counterclaim may arise from entirely separate facts to those which the plaintiff relies on in its claim.

4.130 A defendant may have a claim against a third party which is related to the subject matter of the original proceedings. In some jurisdictions, these claims can be brought as counterclaims. In other jurisdictions, these related claims must be commenced in the same manner as claims for contribution or indemnity.

Claims for contribution or indemnity

4.131 As will be seen, claims for contribution and indemnity are frequently dealt with as a single type of secondary claim for the purpose of the rules concerning

Page 169 commencement. However, conceptually they are quite distinct. A claim for contribution arises where a defendant seeks to share with another person — either a party to the proceedings or a third party — some or all of the defendant’s liability for the plaintiff ’s loss. For example, if a plaintiff has a claim in tort against the defendant for personal injuries arising from a motor vehicle accident, the defendant might seek contribution from another driver (whether or not they are already a defendant). The basis for the defendant’s contribution claim will be that the other driver was partially or entirely responsible for the plaintiff’s loss. By contrast, a claim for indemnity arises where a defendant asserts that another person has a duty to reimburse the defendant, in the event that the defendant is found to be liable for the plaintiff’s loss. For example, a defendant might seek indemnity from an insurer for its liability.

Secondary claims in each jurisdiction Federal Court

4.132 A single set of rules applies to all secondary claims (referred to as ‘cross-claims’) in the Federal Court.265 A respondent to the primary proceeding may make any cross-claim against an applicant; claims against other respondents or third parties may only be made where the relief sought is related to the subject of the primary proceeding.266

265 Federal Court Rules 2011 (Cth) Pt 15; see also the definition of ‘cross-claim’ in Sch 1, Dictionary. 266 Federal Court Rules 2011 (Cth) r 15.01.

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4.133 A respondent who wishes to commence a cross-claim must file a notice of cross-claim in the approved form.267 It must be filed at the same time as the respondent’s defence or affidavit in reply.268 A notice of cross-claim must be accompanied by either a statement of cross-claim or an affidavit, depending on the originating process that was used for the primary proceedings.269

267 Federal Court Rules 2011 (Cth) r 15.02(1), Form 31. See also rr 15.02(2) and 15.07 as to the formal requirements for content. 268 Federal Court Rules 2011 (Cth) r 15.04, but see r 15.05 as to applications to extend time. 269 Federal Court Rules 2011 (Cth) r 15.06.

Australian Capital Territory

4.134 The defendant may make any claim against the plaintiff as a counterclaim.270 Counterclaims against persons other than the plaintiff may be made where either the plaintiff is jointly liable with that other person, or if the relief claimed by the defendant is related or connected to the subject matter of the original proceedings.271 In both cases, the plaintiff must be a party to the counterclaim.272 A counterclaim must be made in the same document as the defence.273 Where one or more of the defendants

Page 170 to the counterclaim is not already a party to the proceedings, the defendant who is bringing the counterclaim must serve additional documents concerning the original proceedings on the new parties.274

270 Court Procedures Rules 2006 (ACT) r 461. See also r 313, which permits counterclaims by persons introduced to the proceedings as third parties. 271 Court Procedures Rules 2006 (ACT) r 462(1)(b). 272 Court Procedures Rules 2006 (ACT) r 462(1)(a). 273 Court Procedures Rules 2006 (ACT) r 464; see also Form 2.9. 274 Court Procedures Rules 2006 (ACT) r 462(2).

4.135 There is a separate scheme for third party proceedings, limited to proceedings which have commenced by originating claim.275 There are two separate regimes for third party proceedings depending on whether they are to be brought against an existing party or a third party. Proceedings against persons who are not party to the primary proceedings are commenced by filing a third party notice.276 The defendant may file a third party notice if it is seeking contribution or indemnity, or if it claims relief which is related to or connected with the original subject matter of the proceedings (and the relief sought is substantially the same as some relief claimed by the plaintiff), or if there is an issue relating to or connected with the original proceedings which should be resolved as between the third party and at least one of the parties to the original proceedings.277

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275 Court Procedures Rules 2006 (ACT) Pt 2.5. 276 Court Procedures Rules 2006 (ACT) r 301. 277 Court Procedures Rules 2006 (ACT) r 302.

4.136 A notice claiming a contribution or indemnity is filed in largely similar circumstances — the only difference is that this form of notice will be used where the defendant wishes to proceed against a person who is already a party.278 The terminology here has the potential to confuse, because such a notice can be filed in circumstances which do not strictly involve claims for contribution or indemnity.

278 Court Procedures Rules 2006 (ACT) r 319.

4.137 The formal requirements for a third party notice are similar to those for an originating claim, and it must have attached to it a statement of claim.279 The third party notice must usually be filed after the defence, but within 28 days of the defence being filed.280 When the defendant serves the third party notice and statement of claim on the third party, various other documents concerning the original proceedings must also be served.281

279 Court Procedures Rules 2006 (ACT) r 303, Form 2.12; see also rr 304 and 305 regarding additional endorsements in particular cases. 280 Court Procedures Rules 2006 (ACT) r 306(1), but see also (2) and (3). See also r 307 concerning sealing. 281 Court Procedures Rules 2006 (ACT) r 308.

4.138 The formal requirements for a notice claiming contribution or indemnity are less detailed,282 consistently with the fact that it will be directed to a person who is already a party. It must usually be filed after the defence, but within 28 days of the defence being filed.283

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282 Court Procedures Rules 2006 (ACT) r 319(2)–(5), Form 2.13. See also r 321 regarding claims for contribution under the Civil Law (Wrongs) Act 2002 (ACT) s 21. 283 Court Procedures Rules 2006 (ACT) r 320(1), but see also (2) and (3).

Page 44 of 50 Chapter 4 Commencement of Proceedings

New South Wales

4.139 A single set of rules applies to all secondary claims (referred to as ‘cross-claims’) in the Supreme Court.284 A defendant to the primary proceedings may seek any relief against the plaintiff; however, cross-claims may only be brought against other defendants or third parties where the relief relates to or is connected with the subject of the primary proceedings.285

284 See generally Uniform Civil Procedure Rules 2005 (NSW) Pt 9, as to cross-claims. See the definition of ‘cross-claim’ in s 3 of the Civil Procedure Act 2005 (NSW) and the Dictionary in the UCPR. 285 Civil Procedure Act 2005 (NSW) s 22(1) and (2).

4.140 A defendant must make a cross-claim by either a statement of cross-claim, or a cross-summons, depending upon the originating process used to commence the primary proceedings.286 The rules concerning the primary originating process apply equally to the secondary originating process.287 Where the cross-claim introduces new parties, those new parties must also be served with various documents relating to the primary proceedings.288

286 Uniform Civil Procedure Rules 2005 (NSW), r 9.1(2); see also Forms 9 and 10. 287 Uniform Civil Procedure Rules 2005 (NSW) r 9.1(3), but see also (4) and (5). 288 Uniform Civil Procedure Rules 2005 (NSW) r 9.7.

Northern Territory and Victoria

4.141 A defendant may make any claim in a counterclaim against the plaintiff.289 Where a counterclaim is made against the plaintiff, the defendant may also name any other person as a defendant to the counterclaim;290 counterclaims are therefore permitted in a narrower range of circumstances than in the Australian Capital Territory (for example). Where the counterclaim joins a third party as a defendant, the counterclaim must be commenced by the appropriate form.291 In all circumstances, the defence and counterclaim must be pleaded in a single document.292

289 Supreme Court Rules (NT) r 10.02; Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 10.02. 290 Supreme Court Rules (NT) r 10.03; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 10.03. 291 Supreme Court Rules (NT) r 10.04(5) and Form 10A; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 10.04(5) and Form 10A.See generally r 10.04 in each jurisdiction as to the procedural requirements where a new party is joined as a defendant to a counterclaim. 292 Supreme Court Rules (NT) r 10.02(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 10.02(3).

Page 45 of 50 Chapter 4 Commencement of Proceedings

4.142 There are two separate regimes for third party proceedings depending on whether they are to be brought against an existing party or a third party. A third party notice is used where the defendant claims against a person who is not a party to the primary proceedings.293 It may be used where the defendant seeks contribution or indemnity, or relief connected with the subject matter of the primary proceedings and substantially the same as at least some of the relief claimed by the plaintiff, or where there is a question relating to the subject matter of the primary proceedings which

Page 172 should be determined between the third party and one of the parties to the primary proceedings.294 Where the defendant seeks such relief against a person who is already a party — and the claim is not able to be made by counterclaim — the claim is made by filing and serving a notice under r 11.15 (a more limited requirement).

293 Supreme Court Rules (NT) r 11.01; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.01. 294 Supreme Court Rules (NT) r 11.01; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.01.

4.143 A third party notice must be in the approved form, and endorsed with a statement of claim.295 It is filed and served in the same manner as the originating process in the primary proceedings, and the third party becomes a party to the proceedings at the time of filing.296 A third party notice will usually be filed after the defence is filed, but within 28 days (in the Northern Territory) or 30 days (in Victoria) of the time for service of the defence.297

295 Supreme Court Rules (NT) r 11.02, Form 11A; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.02(1), Form 11A. In Victoria,there is a separate form where the third party notice is filed in RedCrest: r 11.02(2), Form 11C. 296 Supreme Court Rules (NT) r 11.04; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.04. 297 Supreme Court Rules (NT) r 11.05; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.05.

Queensland

4.144 The defendant may make any claim against the plaintiff as a counterclaim.298 Counterclaims against persons other than the plaintiff may be made where either the plaintiff is jointly liable with that other person, or if the relief claimed by the defendant is related or connected to the subject matter of the original proceedings.299 In both cases, the plaintiff must be a party to the counterclaim.300 A counterclaim must be in the approved form, and included in the same document as the defence.301

298 Uniform Civil Procedure Rules 1999 (Qld) r 177. See also r 200, which permits counterclaims by persons introduced to the proceedings as third parties. 299 Uniform Civil Procedure Rules 1999 (Qld) r 178(1)(b).

Page 46 of 50 Chapter 4 Commencement of Proceedings 300 Uniform Civil Procedure Rules 1999 (Qld) r 178(1)(a). 301 Uniform Civil Procedure Rules 1999 (Qld) r 179; see also Form 18.

4.145 There is a separate scheme for third party proceedings, limited to proceedings which have commenced by originating claim.302 There are two separate regimes for third party proceedings depending on whether they are to be brought against an existing party or a third party. Proceedings against persons who are not party to the primary proceedings are commenced by filing a third party notice under r 192. The defendant may file a third party notice if it is seeking contribution or indemnity, or if it claims relief which is related to or connected with the original subject matter of the proceedings (and the relief sought is substantially the same as some relief claimed by the plaintiff), or if there is an issue relating to or connected with the original proceedings which should be resolved as between the third party and at least one of the parties to the original proceedings.303 Where the defendant seeks such relief against a person who is already a party — and the claim is not able to be made by counterclaim — the claim is made by filing and serving a third party notice under

Page 173 r 206(which is slightly modified). A claim which is solely for contribution under s 6 of the Law Reform Act 1995 (Qld), and is directed to another defendant,may be commenced by filing only a notice claiming contribution, without further pleading.304

302 Uniform Civil Procedure Rules 1999 (Qld) Ch 6 Pt 6; r 191. 303 Uniform Civil Procedure Rules 1999 (Qld) r 192. 304 Uniform Civil Procedure Rules 1999 (Qld) r 208.

4.146 A third party notice must be in the approved form, and it must attach a statement of claim.305 The third party notice must usually be filed after the defence, but within 28 days of the defence being filed.306 A copy of all pleadings and any order giving leave to file or serve the third party notice must also be served with the third party notice and claim;307 a more limited requirement than in the Australian Capital Territory, for example, where a more extensive set of documents must be served.

305 Uniform Civil Procedure Rules 1999 (Qld) r 193; Form 14. 306 Uniform Civil Procedure Rules 1999 (Qld) r 194(1), but see also (2)–(4). 307 Uniform Civil Procedure Rules 1999 (Qld) r 195(2).

South Australia

4.147 The South Australian rules distinguish between cross-actions — secondary actions brought against existing parties — and third party actions — those brought against third parties.308

Page 47 of 50 Chapter 4 Commencement of Proceedings

308 Supreme Court Civil Rules 2006 (SA) r 29.

4.148 A cross-action is defined as an action brought by a defendant to the primary action against another person who is already party to the proceedings,309 and is commenced by filing a secondary originating process.310 A cross-action in the form of a counterclaim may be in the same document as the defence,311 or may be commenced in the approved form, and accompanied by a statement of counterclaim.312 A cross-action in the form of a contribution claim must be commenced in the approved form for contribution claims, which incorporates a statement of claim.313

309 Supreme Court Civil Rules 2006 (SA)r 35(1). 310 Supreme Court Civil Rules 2006 (SA) r 35(1). 311 Supreme Court Civil Rules 2006 (SA) r 35(4). 312 Supreme Court Civil Rules 2006 (SA) r 35(2); Supreme Court Civil Supplementary Rules 2014 (SA) r 36(1); Forms 8 and 20. 313 Supreme Court Civil Rules 2006 (SA) r 35(2); Supreme Court Civil Supplementary Rules 2014 (SA) r 36(2); Form 21.

4.149 A third party action is a claim by a defendant to an existing action against a person who is not already a party to the proceedings.314 Third party actions must be based on contribution or indemnity, or relate in some way to the subject matter of the primary proceedings.315 They are commenced by filing an originating process in the approved form, which must be accompanied by a statement of third party claim or an affidavit in lieu of pleading.316 The third party becomes a party to the proceedings at the time of filing317 — not at the time at which they are served.

Page 174

314 Supreme Court Civil Rules 2006 (SA) r 36(1) and (2) . 315 Supreme Court Civil Rules 2006 (SA) r 36(2). 316 Supreme Court Civil Rules 2006 (SA) r 36(1) and (3) ; Supreme Court Civil Supplementary Rules 2014 (SA) r 37; Forms 9 and 18. 317 Supreme Court Civil Rules 2006 (SA) r 36(5).

4.150 There are separate provisions for secondary actions which are partly cross-actions and partly third party actions.318 All secondary actions must be filed and served within the time for filing and serving a defence.319

Page 48 of 50 Chapter 4 Commencement of Proceedings

318 Supreme Court Civil Rules 2006 (SA) r 37; Supreme Court Civil Supplementary Rules 2014 (SA) r 38; Forms 9A and 20. 319 Supreme Court Civil Rules 2006 (SA) rr 35(3), 36(4) and 37(2).

Tasmania

4.151 A defendant to an action may make any claim or claims against a plaintiff in the form of a counterclaim.320 In proceedings where there are pleadings, the counterclaim is to be made in the defence, in a separate section headed ‘Counterclaim’.321 A counterclaim may only be brought against a person other than the plaintiff where the claim is for relief against the plaintiff and the other person; there are additional formal requirements in those circumstances.322 Where the primary proceedings have been commenced by application, there are provisions for the defendant to bring a cross-application.323

320 Supreme Court Rules 2000 (Tas) r 192(1) and (2), but see also (7) and (8). 321 Supreme Court Rules 2000 (Tas) r 192(5). See (6) as to the additional endorsements required where the counterclaim is to recover possession of goods or land. Rule 192(7) and (9) provide that counterclaims in actions with no pleadings may only be brought with leave of the court, and are made by application. 322 Supreme Court Rules 2000 (Tas) r 195. 323 Supreme Court Rules 2000 (Tas) rr 193 and 196.

4.152 Where a defendant wishes to claim, from a third party, contribution or indemnity, or other relief related to the subject matter of the primary proceedings, the defendant must file and serve a third party notice within 30 days of delivering the defence.324 It must be in accordance with the prescribed form, and contain other endorsements concerning the nature of the claim and relief sought.325

324 Supreme Court Rules 2000 (Tas) r 202. 325 Supreme Court Rules 2000 (Tas) r 203(1); Form 18; see also (2) and (3) as to the requirements for serving.

4.153 A defendant who wishes to claim contribution or indemnity, or other relief related to the subject matter of the primary proceedings, against a defendant, must file and serve a notice claiming that relief.326 A defendant may also serve on another defendant a notice identifying any question or issue relating to the primary proceedings which is substantially the same as a question arising between plaintiff and defendant, and which should be determined between any of the plaintiff, the defendant and the served defendant.327

Page 49 of 50 Chapter 4 Commencement of Proceedings

326 Supreme Court Rules 2000 (Tas) r 211(1). 327 Supreme Court Rules 2000 (Tas) r 211(2).

Western Australia

4.154 A defendant may make any claim as a counterclaim against the plaintiff,328 and may join third parties to that counterclaim.329 The counterclaim should be made in

Page 175 the defence.330 There are additional endorsements and formalities where a third party is joined to the counterclaim.331

328 Rules of the Supreme Court 1971 (WA) O 18 r 2. 329 Rules of the Supreme Court 1971 (WA) O 18 r 3. 330 Rules of the Supreme Court 1971 (WA) O 18 r 2(1). 331 See generally Rules of the Supreme Court 1971 (WA) O 18 r 3(2)–(5).

4.155 A defendant may serve a third party notice on a person not party to the proceedings, where the defendant wishes to claim contribution or indemnity, or some relief related to the subject matter of the primary proceedings and substantially the same as some relief claimed by the plaintiff, or for the resolution of any question which arises in the primary proceedings and ought also be determined as between the third party and a party to the primary proceedings.332 Where relief is sought against another party, a notice under O 19 r 8 should be served; this is a more limited requirement.

332 Rules of the Supreme Court 1971 (WA) O 19 r 1(1).

4.156 The third party notice must be in the approved form; there are separate forms when the defendant claims some relief against the third party and where the defendant seeks to have a question determined.333 A defendant must either issue the third party notice before the defence is served, or seek leave of the court.334

333 Rules of the Supreme Court 1971 (WA) O 19 r 1(1); Forms 10 and 11. 334 Rules of the Supreme Court 1971 (WA) O 19 r 1(2); see also O 19 r 2 as to applications for leave to issue third party notices.

Page 50 of 50 Chapter 4 Commencement of Proceedings

End of Document

Chapter 5 Service Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 5 — Service

Chapter 5 Service Page 177 [Current to May 2018]

Introduction Notification — a fundamental requirement of justice

5.1 Service is the means by which court documents are brought to the attention of the parties to legal proceedings. Service, especially of originating process, is no mere formality. The right to a fair trial demands that every litigant should have timely notice of any proceedings affecting its interests, and a reasonable opportunity to respond.1 It follows that defendants must be notified of any claim against them. All parties must be notified of any court hearing to be held in the proceedings. All parties must also receive important documents and information concerning the proceedings,such as pleadings (and any amendments to pleadings), lists of discovered documents, and information about witnesses, documents and other evidence which are intended to be used in the proceedings.

1

See Chapter 3, 3.69–3.73.

5.2 Failure to give a party adequate notice of the proceedings usually serves to deprive those proceedings of any legitimacy. Further, valid service is necessary in order to enliven the jurisdiction of the court.2

2

Laurie v Carroll (1958) 98 CLR 310 at 323–4 (per curiam); Gilles v Palmieri [2016] NSWCA 219 at [22] Leeming JA (Basten JA and Sackville AJA agreeing).

per

5.3 Notification of the fact of the proceedings is clearly a fundamental requirement of justice.3 It is for this reason that plaintiffs must prove that the defendant has been served before they can proceed to default judgment. A party that has not been appropriately notified is entitled to have any decision made in its absence set aside.4 Ex parte

Page 2 of 63 Chapter 5 Service applications are exceptional, and the absent party will be afforded an opportunity of being heard after the event and, as far as is possible, will be put in the same position at the subsequent inter partes hearing as it would have been before the order was made.5

Page 178

3

Cameron v Cole (1944) 68 CLR 571 at 589 Committee; Ex parte Rossi [1956] 1 QB 682 White v Weston [1968] 2 QB 647

4

at 659–61

Cameron v Cole (1944) 68 CLR 571 at 589,590–1 [1968] 2 QB 647

5

per Rich J; R v County of London Quarter Sessions Appeals at 691

at 658–9

per Denning LJ, 696 per Morris LJ, 699 per Parker LJ; per Sachs LJ. per Rich J; see also at 584 per Latham CJ; White v Weston

per Russell LJ, 662 per Sachs LJ.

BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [133] per Spigelman CJ, (Mason P and Handley JA agreeing). See generally Chapter 10, 10.80–10.89 as to ex parte orders.

5.4 The principle underlying the requirement of notification extends beyond the parties to the proceedings. The court will not adjudicate matters which affect the interests of third parties in the absence of those third parties.6

6

BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 at [133]–[134] and Handley JA agreeing).

per Spigelman CJ (Mason P

5.5 Unlike the filing or issuing of the originating process, which is a unilateral act by the plaintiff, the process of notification involves both parties. The plaintiff must take steps to bring the proceedings to the defendant’s notice.The process of notification is, however, only completed when the defendant receives notification. It will be observed that there is, therefore, a conceptual distinction between the plaintiff’s act of service, and the defendant receiving notice of the proceedings.7 This distinction has important ramifications and will be discussed later in this chapter.8 The rules for service therefore serve several functions. Primarily, rules about service seek to ensure that the defendant is actually notified. However, they also serve to identify the steps that the plaintiff must take to carry out service and thereby establish presumptions about notification. Finally, the rules for service lay down methods for calculating compliance with the time limits for service.

7

See, for example, R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 ; White v Weston [1968] 2 QB 647 curiam).

8

See 5.20–5.31 below.

; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96–7

(per

Page 3 of 63 Chapter 5 Service

Scope of the rules for service

5.6 In all Australian jurisdictions, a distinction is drawn between two forms of service. First, ‘personal service’, as the name suggests, entails that the document in question is delivered to the defendant personally. Secondly, where personal service is not required, documents may be delivered to the other parties using one of a variety of other methods provided for in the rules. The permitted methods of delivery vary, but may include transmission by post or email, for example. In most jurisdictions, service which is not effected personally is referred to in the rules as ‘ordinary service’, which is the term used in this text.

5.7 In all jurisdictions, the originating process in the Supreme Court must be served personally. The rules may also identify certain other important documents which must be delivered by personal service. Beyond that, almost all jurisdictions expressly permit any document to be served by personal service.9 However, personal service will usually be a less convenient method of service. For most documents, a party will usually be able to select amongst the various forms of ordinary service.

9

Federal Court Rules 2011 (Cth) r 10.31(a); Court Procedures Rules 2006 (ACT) r 6420(a); Uniform Civil Procedure Rules 2005 (NSW) rr 10.5(1)(a)and 10.20(1); Supreme Court Rules (NT) r 6.01; Supreme Court Civil Rules 2006 (SA) r 68(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.01; Rules of the Supreme Court 1971 (WA) O 72 r 5(2)(a).

5.8 There are good reasons for requiring personal service of the originating process. The originating process serves to notify the defendant for the first time of the fact

Page 179 that the proceedings have been commenced.10 It is therefore critical to ensure that the defendant in fact receives notification.11

10 White v Weston [1968] 2 QB 647

at 658

per Russell LJ.

11 R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 Denning LJ.

at 691–2

per

5.9 Secondly, at the time that an originating process is served, the defendant has not yet indicated any address for service. After a party has indicated an address for service, some responsibility is placed on that party for their own notification:for example, if a plaintiff has correctly posted a document to the defendant’s address for service, the defendant will be taken to be served even if they have failed to open their post. However, no responsibility can be

Page 4 of 63 Chapter 5 Service placed on the defendant at a time when they are unaware of the fact that proceedings have been commenced against them, and they not indicated an address at which they are to be contacted for service.

5.10 An important reason in favour of requiring personal service of the originating process is that it creates certainty about the fact and time of service. The fact of service is critical if the plaintiff wishes to obtain default judgment. Default judgment may only be given in favour of the plaintiff if there is evidence that the defendant was in fact notified of the proceedings.

5.11 The time at which service has occurred may also be critical. Whilst the filing of the originating process marks the formal start of proceedings,12 and serves to stop time running for the purpose of determining whether proceedings have been commenced within the limitation period, the litigation process becomes fully engaged only by the act of service of the originating process. In most jurisdictions, the originating process for actions is valid for service for six or 12 months after filing.13 As a result, the plaintiff has a lengthy period of time in which it has a discretion as to when to serve the originating process. For these reasons, the time of service of the originating process (and not the time of filing) is the reference point for calculating the time for subsequent process steps, in particular the time for the defendant to file its first document in the proceedings (usually an appearance, or a notice of address for service). Because this timetable refers back to the service of the originating process, the time of service ought to be capable of being established with certainty by the litigants and by the court, in order to enable the proceedings to be conducted in an efficient and orderly manner.

12 Gilles v Palmieri [2016] NSWCA 219 at [22]

per Leeming JA (Basten JA and Sackville AJA agreeing).

13 See Chapter 4, especially 4.56–4.121 as to the formalities for originating processes, including the period for which they are valid.

5.12 Personal service creates certainty about the fact and time of the service on the defendant. A plaintiff who has effected service personally is able to give evidence that the defendant has been notified, and the time at which this occurred.A plaintiff can give no such evidence where it has served a document by post. A plaintiff may be able to establish that it has correctly effected service by one of the ordinary modes; however, as explained above, this is not the same as establishing that the defendant has received such notification.

Page 180

Filing

5.13 Filing and service are two distinct steps. Filing a document means, in general terms, delivering it to the court in which the proceedings are to be heard. A party may file a document by attending the court registry personally.14 Alternatively, depending on the jurisdiction, a party may be able to file a document by post,15 document exchange,16 fax17 or email.18 Some jurisdictions also make provision for documents to be filed electronically, through a dedicated

Page 5 of 63 Chapter 5 Service website.19 In Victoria, there are certain categories of proceedings for which electronic filing via a dedicated website — RedCrest — is the only available method.20

14 Federal Court Rules 2011 (Cth) r 2.21(1)(a); Court Procedures Rules 2006 (ACT) r 6121(a); Uniform Civil Procedure Rules 2005 (NSW) r 4.10(1)(a); Supreme Court Rules (NT) r 28.01; Uniform Civil Procedure Rules 1999 (Qld) rr 967(1)(a) and 968 ; Supreme Court Civil Rules 2006 (SA) r 50(1)(a); Supreme Court Rules 2000 (Tas) r 83(1)(a); Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 28.01; Rules of the Supreme Court 1971 (WA) O 4 (definition of ‘to file’). 15 Federal Court Rules 2011 (Cth) r 2.21(1)(b); Court Procedures Rules 2006 (ACT) rr 6121(b) and 6121; Uniform Civil Procedure Rules 2005 (NSW) r 4.10(1)(b); Uniform Civil Procedure Rules 1999 (Qld) rr 967(1)(b) and 969; Supreme Court Rules 2000 (Tas) r 83(1)(b), (5)–(9); Consolidated Practice Directions of the Supreme Court of Western Australia (2009), Practice Direction 1.2.3. 16 Supreme Court Rules 2000 (Tas) rr 84 and 83(5)–(9). 17 Federal Court Rules 2011 (Cth) rr 2.21(1)(c) and 2.22 ; Court Procedures Rules 2006 (ACT) r 6121(c); Rules of the Supreme Court 1971 (WA) O 67 r 19. 18 Court Procedures Rules 2006 (ACT) r 6121(d) and (e); Supreme Court Rules 2000 (Tas) r 83(1)(c) and Div 2A. 19 Federal Court Rules 2011 (Cth) rr 2.21(1)(d) and 2.23 ; Uniform Civil Procedure Rules 2005 (NSW) r 3.4; Uniform Civil Procedure Rules 1999 (Qld) rr 967(1)(c) and 975C; Supreme Court Civil Rules 2006 (SA) r 45; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 28 Pt 2 and Os 28A; Rules of the Supreme Court 1971 (WA) O 67 r 20. Although the rules provide for such service, not all jurisdictions presently maintain a website. 20 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28A.03, and see also r 28A.01.

5.14 Filing has greater significance in modern civil procedure, due to the increased emphasis placed on court management of proceedings. In order to discharge its case management responsibilities, the court must have all the relevant documents.

5.15 The rules indicate the documents which must be filed, and, in many cases, the time at which they must be filed. For example, the rules in all jurisdictions identify that the pleadings of all parties (statement of claim, defence and reply) must be filed; the time for filing is usually calculated by reference to the preceding step in the proceedings.21 For some documents, however, the time for filing will be set by the court in the exercise of its case management powers. Even where the rules of court

Page 181 prescribe times at which documents must be filed, the court retains a general case management power to order different arrangements.22

21 Federal Court Rules 2011 (Cth) Div 16.3 (Progress of pleadings); Court Procedures Rules 2006 (ACT) rr 102 and 480; Uniform Civil Procedure Rules 2005 (NSW) rr 14.3 and 14.4; Uniform Civil Procedure Rules 1999 (Qld) rr 137 and 164; Supreme Court Civil Rules 2006 (SA) rr 92(2) and 94(2); Supreme Court Rules 2000 (Tas) rr 266 and 267; Rules of the Supreme Court 1971 (WA) O 20 rr 3–5. Cf Supreme Court Rules (NT) rr 14.02, 14.04, 14.05 and 14.10; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 14.02, 14.04, 14.05 and 14.10, which calculate the time of service of pleadings by reference to the preceding step (filing must then occur without delay). 22 Federal Court Rules 2011 (Cth) Div 1.3, especially r 1.39; Court Procedures Rules 2006 (ACT) rr 1401 and 6351, see also r 6352;Uniform Civil Procedure Rules 2005 (NSW) r 1.12 and Pt 2 ; Supreme Court Rules (NT) rr 3.02 and 34.01;

Page 6 of 63 Chapter 5 Service Uniform Civil Procedure Rules 1999 (Qld) rr 7, 366 and 367; Supreme Court Civil Rules 2006 (SA) rr 10 and 117; Supreme Court Rules 2000 (Tas) rr 52 and 415; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 3.02 and 34.01; Rules of the Supreme Court 1971 (WA) O 3 r 5 and Os 4A r 2.

5.16 When a document is filed, the court officer will usually stamp or mark the document as filed,23 and in most jurisdictions will record the date of filing and write that date on the document.24 When the originating process is filed, copies may be sealed too, if the rules require a sealed copy to be served.25

23 Federal Court Rules 2011 (Cth) r 2.25(b); Court Procedures Rules 2006 (ACT) rr 6122(3)(a) and 6123(4)(a); Uniform Civil Procedure Rules 1999 (Qld) rr 968(4) and 969(5); Supreme Court Rules 2000 (Tas) r 18(2) (certain documents to be sealed); Rules of the Supreme Court 1971 (WA) O 67 r 9(1). 24 Court Procedures Rules 2006 (ACT) r 6126(6); Supreme Court Rules (NT) r 28.03; Supreme Court Rules 2000 (Tas) rr 83(4)(a) and(7)(a), 87E(2)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28.03; Rules of the Supreme Court 1971 (WA) O 67 r 9(1). 25 Federal Court Rules 2011 (Cth) r 2.01(2); Court Procedures Rules 2006 (ACT) rr 54(1), 61(1), 70, 6120 and 6304; Uniform Civil Procedure Rules 2005 (NSW) r 4.12; Supreme Court Rules (NT) r 5.11(3); Uniform Civil Procedure Rules 1999 (Qld) rr 8(1) and 978; Supreme Court Civil Rules 2006 (SA) r 51; Supreme Court Rules 2000 (Tas) r 18(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.11(3); Rules of the Supreme Court 1971 (WA) O 5 rr 6– 8, Os 54 r 6, Os 58 r 14(3) and (4).

5.17 The time at which documents are filed can be critical. In all cases, it is determinative of whether the filing party has complied with the time limits imposed by the rules or by the court. In the case of the originating process, the time of filing will be determinative of the question whether the proceedings have been commenced within the limitation period. A difficulty may arise, therefore, if a document is lodged using a modern method of lodgment (that is, a method other than lodging a hard copy in person at the registry). If a document is lodged by email at 10 pm, for example, the registry office will be closed; should the document be taken to be lodged for filing that day, or the next day that the registry is open? To avoid such uncertainties, most jurisdictions which permit modern methods of lodgment make provision for the time that a document will be taken to have been filed, which are contingent on the method of lodgment used.26 However, some jurisdictions are unfortunately far less detailed in identifying the time that a document will be taken to be filed.27

Page 182

26 Federal Court Rules 2011 (Cth) r 2.25; Court Procedures Rules 2006 (ACT) r 6126; Uniform Civil Procedure Rules 2005 (NSW) rr 4.10(3) and 3.4(3); Supreme Court Civil Rules 2006 (SA) r 50(1); Supreme Court Rules 2000 (Tas) rr 83(7), 87E(1);Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.11(1.1)(b) (originating process) 28.10(3) and (4), 28A.04 and 28A.05; Rules of the Supreme Court 1971 (WA) O 67 r 19(6); Consolidated Practice Directions of the Supreme Court of Western Australia (2009) Practice Direction 1.2.3, [5]. See also Supreme Court Rules (NT) rr 28.01 and 28.03 (rules provide only for filing in person). 27 Uniform Civil Procedure Rules 2005 (NSW) r 4.10(3); Uniform Civil Procedure Rules 1999 (Qld) contain no such provision.

Page 7 of 63 Chapter 5 Service

5.18 In all jurisdictions, the court registry has the power to reject documents for filing. The scope of these rules differs between jurisdictions. In some jurisdictions, the court registry has power to reject documents which are either frivolous or vexatious in nature, constitute an abuse of the court’s process, or contain scandalous material (the precise criteria vary between jurisdictions).28 In some jurisdictions, the rules expressly provide that the court registry has power to reject documents which do not comply with the rules in one or more respects.29 Depending on the jurisdiction, there may be provision for the registry to seek the direction of the court as to whether to accept the document for filing;30 in New South Wales, a document accepted by the registry may be subsequently rejected for filing by the court.31

28 Federal Court Rules 2011 (Cth) r 2.26; Court Procedures Rules 2006 (ACT) r 6142; Supreme Court Rules (NT) r 27.06 and see also r 27.07; Uniform Civil Procedure Rules 1999 (Qld) r 973 and see also r 15; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 27.06 and see also r 27.07; Rules of the Supreme Court 1971 (WA) O 67 r 5. In South Australia and Tasmania,the registrar must refer the matter to a judicial officer if it appears that the document to be filed is an abuse of process: Supreme Court Civil Rules 2006 (SA) r 53; Supreme Court Rules 2000 (Tas) r 82A. Cf Uniform Civil Procedure Rules 2005 (NSW) r 4.10(5)(a)(ii). 29 Federal Court Rules 2011 (Cth) r 2.27; Court Procedures Rules 2006 (ACT) rr 6140 and 6141; Uniform Civil Procedure Rules 2005 (NSW) rr 4.10(5)(a)(i) and (b), 3.4(5); Supreme Court Rules (NT) r 27.06(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 27.06(2); Rules of the Supreme Court 1971 (WA) O 69 r 2(2) and Os 71A r 4. 30 Court Procedures Rules 2006 (ACT) r 6142(2)(b) and (3); Supreme Court Rules (NT) r 27.06(2)(a) and (3); Uniform Civil Procedure Rules 1999 (Qld) r 15; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 27.06(2)(a) and (3). Cf Supreme Court Civil Rules 2006 (SA) r 53; Supreme Court Rules 2000 (Tas) r 82A(registrar must refer matter to a judicial officer); cf Rules of the Supreme Court 1971 (WA) O 67 r 5(1) (party seeking to file the document must first obtain the leave of judicial officer). 31 Uniform Civil Procedure Rules 2005 (NSW) r 4.10(4).

5.19 Filed documents will be maintained by the court registry on the court file. In all jurisdictions, the parties have the right to inspect the court file and take copies of any documents which have been filed, subject to exceptions in most jurisdictions for confidentiality purposes.32 There is also provision in all jurisdictions for non-parties to have access to the court file, although the extent of non-party access varies. In most jurisdictions, there is a general rule that a non-party may inspect and copy any document,subject to certain exceptions identified in the rules.33 In the Federal Court, and in Western Australia, a non-party may inspect and copy only a limited set of documents, identified in the rules.34 In New South Wales, non-parties can only access documents with the leave of the court, although this will usually be granted in respect

Page 183 of pleadings, and documents or information which is either in evidence, or would have been seen or heard by any person present in court.35

32 Federal Court Rules 2011 (Cth) r 2.32(1); Court Procedures Rules 2006 (ACT) r 2903; Practice Note SC Gen 2 (NSW), [9]–[10]; Supreme Court Rules (NT) r 28.05(2)(a); Uniform Civil Procedure Rules 1999 (Qld) r 981(3); Supreme Court Act 1935 (SA) s 131(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 28.05(2)(a). 33 Court Procedures Rules 2006 (ACT) r 2903(1) and (2); Supreme Court Rules (NT) r 28.05(1) and (2)(b); Uniform Civil Procedure Rules 1999 (Qld) rr 980 and 981; Supreme Court Act 1935 (SA) s 131(1), see also s 131(2); Supreme Court Rules 2000 (Tas) r 33; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28.05(1) and (2)(b). 34 Federal Court Rules 2011 (Cth) r 2.32(2) and (5); Rules of the Supreme Court 1971 (WA) O 67 r 11(1).

Page 8 of 63 Chapter 5 Service 35 Practice Note SC Gen 2 (NSW), [6]–[7], [14]–[18].

Conceptual distinction between service and notification Separation of service and notification in modern practice

5.20 As already noted, service and notification are inextricably linked when personal service is effected. This is because personal service requires delivery to the defendant in person; accordingly, the plaintiff ’s act of service, and the notification of the defendant, take place at the same time, in the presence of both the plaintiff (or their agent) and the defendant.

5.21 However, most documents are required to be served only by ordinary service. As will be seen, ordinary service differs between Australian jurisdictions, but is effected by modern communication methods such as post, fax, document exchange, email and online registries. When these methods are used, the act of transmission (the act of service) and the fact of notification are no longer co-existent. A party who serves a document may be able to give evidence of the fact and manner by which it effected service (that is, it can give evidence that it transmitted the documents), but it will not necessarily know that the document reached its destination, let alone whether it came to the notice of its opponent.

5.22 For documents which are served in the ordinary manner, there is therefore a divide between the known fact of the act of service, and the unknown fact of whether it has been received. In the case of the originating process, all Australian jurisdictions avoid this problem by requiring personal service. However, for other documents served in the course of proceedings, the divide must be bridged. Otherwise, there would be a risk of court processes coming to a halt each time a party failed to respond to a document served by its opponent, because there would be uncertainty about whether the failure to respond was caused by a lack of notification, or whether that party had chosen not to respond. Court processes may continue by default where a party has chosen not to respond to its opponent, but as explained above, it would be unjust for the court to adjudicate on interlocutory or final matters in the absence of a party who has not been notified of a critical document.

5.23 Non-personal methods of service must therefore be backed up by presumptions of notification which bridge the divide between service and notification. However, because no rule of court can displace the right to a fair trial, defendants must be allowed to rebut a presumption of notification by proof that the document was not delivered.36

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Page 9 of 63 Chapter 5 Service 36 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96–7

(per curiam); see also R v County of London Quarter

Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 ; White v Weston [1968] 2 QB 647 ; in some jurisdictions, the rules or legislation refers expressly to the possibility that the presumption may be rebutted: Acts Interpretation Act 1901 (Cth) s 29; Interpretation Act 1987 (No 15) (NSW) s 76; Interpretation Act (NT) s 25(3); Acts Interpretation Act 1954 (Qld) s 39A(1)(b); Supreme Court Civil Rules 2006 (SA) r 71(6); Rules of the Supreme Court 1971 (WA) O 72 r 5A(2).

5.24 A further aspect of modern methods of service, which was referred to in the previous section, is that they involve an important difference in the nature of the serving party’s responsibility, compared to personal service. When the originating process is served personally, the plaintiff is responsible for bringing the originating process to the attention of the defendant. However, when ordinary service is used, the plaintiff is responsible only for correctly using the methods of service which are permitted in the rules. Service consists therefore in the proper use of one of the approved methods of service. Notification, by distinction, consists in the documents reaching the served party.

5.25 It will have become clear that modern rules of service ought to fulfil several distinct functions. They must provide presumptions of notification and, in addition, they should supply formal rules for determining compliance with time limits.Further, they should ensure that legal documents are served at socially acceptable times. As will be seen, there is a variance between Australian jurisdictions in the extent to which these functions are served.

Rules for determining the time of service

5.26 Rules for determining the time at which service took place — and thus for determining compliance with deadlines — are indispensable in a modern system of procedure. Almost all actions are subject to a limitation period, beyond which the defendant has a right not to be troubled by legal proceedings against it.37 In order to bring an action within the limitation period, the plaintiff must file the originating process before the expiry of the relevant limitation period.38 However, if the law is to mark effectively the end of the time within which litigation can take place, it must also limit the time for serving the originating process. Otherwise, the plaintiff would be able to keep a claim alive indefinitely,by filing the originating process and delaying service.39

37 For a discussion of limitation periods, see Chapter 26, 26.7–26.62. 38 See Chapter 26, 26.61–26.62. 39 The undesirability of enabling the indefinite delay of service of originating process also motivates rules concerning extensions of time for service: Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158 at [45]

per Ipp J (Malcolm CJ agreeing).

5.27 To prevent such a result, all Australian jurisdictions have rules which limit the time for service of the originating process.40 Because the originating process is served personally when the proceedings have been commenced in

Page 10 of 63 Chapter 5 Service the Supreme Court, the time of service is known to both plaintiff and defendant. Accordingly, there is no need for rules which indicate the time at which the originating process will be taken to have been served.

40 See Chapter 4, especially 4.56–4.121 as to the formalities for originating processes, including the period for which they are valid.

5.28 The position is different where a document may be served by ordinary service. Many documents which are produced in the course of litigation must be served on

Page 185 the opponent within a time which is specified either by the rules or by the order of a court exercising case management functions. Because there are a variety of methods by which ordinary service may be effected, the rules ought to indicate, for each method of service, what must be done by the serving party in order to comply with a deadline. For example, if a document may be served by post, the rules ought to indicate whether compliance with the deadline for service requires that the document reach the opponent by the deadline, or whether it is sufficient that the serving party posts the document before the deadline.

5.29 In setting out what is necessary for compliance with time limits, the rules ought also to make some provision for social welfare considerations, otherwise parties serving documents would be free to trouble their opponents at times that are normally devoted to rest. Accordingly, policy decisions need to be taken at the rule-making level whether to permit service on days such as Christmas Day and public holidays.

5.30 There may also be policy reasons for restricting the places at which an opponent may be served. For example, at common law, service of an originating process at court could be a contempt of court (although it would not necessarily be invalid)because of the risk that parties would be deterred from using the court to resolve their disputes.41 Contemporary Australian case law indicates that such service may still constitute contempt where it ‘might have such a deterrent effect as to obstruct the administration of justice’.42

41 See Baldry v Jackson (1976) 1 NSWLR 19 at 23–5 per Yeldham J; Re O’Sullivan; Ex parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 (FCA, Einfeld J, 28 August 1990, unreported).

per Lindgren J; see also Re McIntyre; Ex parte Perkes

42 Baldry v Jackson (1976) 1 NSWLR 19 at 25 per Yeldham J; his Honour noted that in Re Tole (1933) 50 WN (NSW) 216 at 217

, Long Innes J had distinguished between service of a subpoena and service of an originating process. See

also Brookfield & Septic Products Australia Pty Ltd (in liq) v Davey Products Pty Ltd [1998] FCA 1201 J; R v Dunn [2015] 2 Qd R 407; [2014] QCA 254 at [22]

per Mansfield

per Margaret McMurdo P (Morrison JA agreeing).

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5.31 Australian jurisdictions differ in the extent to which these matters are addressed in the rules. However, all jurisdictions contain provisions for identifying when a document which is served at a particular time will be taken to be received,which will depend on the method of service which has been used.43 There are a small number of jurisdictions which restrict the times at which persons may be served.44

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43 Federal Court Rules 2011 (Cth) r 10.32; Court Procedures Rules 2006 (ACT) r 6450; Uniform Civil Procedure Rules 2005 (NSW) r 10.5(3) (document exchange and facsimile only); Electronic Transactions Act 2000 (NSW) Sch 1 cl 13 (email communication); Supreme Court Rules (NT) r 6.06(4) (document exchange only); Uniform Civil Procedure Rules 1999 (Qld) r 112(2) (document exchange only); Supreme Court Civil Rules 2006 (SA) r 71; Supreme Court Rules 2000 (Tas)rr 144(3), 87F(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(4) and (5); Electronic Transactions (Victoria) Act 2000 (Vic) s 13; Rules of the Supreme Court 1971 (WA) O 72 r 5A(2). In some jurisdictions,provisions about the meaning of service by post, and the time at which such service will be deemed to have taken place, are included in legislation of general application: Acts Interpretation Act 1901 (Cth) ss 28A and 29; Interpretation Act 1987 (No 15) (NSW) ss 76 and 77; Interpretation Act (NT) s 25; Acts Interpretation Act 1954 (Qld) s 39A. 44 Uniform Civil Procedure Rules 1999 (Qld) r 101, see also r 103; Supreme Court Rules 2000 (Tas) rr 49 and 144(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(1)(a).

Personal service

5.32 Where proceedings have been commenced in any Supreme Court or the Federal Court, the originating process must be served personally.45 In jurisdictions which maintain different forms of originating process for different types of proceedings, the requirement of personal service applies to all types of originating process. The rules in all of the jurisdictions also identify further documents, other than the originating process, which must be served personally.46 As always, care should be taken to check the precise requirements for service of the document proposed to be served.

45 Federal Court Rules 2011 (Cth) r 8.06; Court Procedures Rules 2006 (ACT) rr 54(2) (originating claim) and 61(3) (originating application);Uniform Civil Procedure Rules 2005 (NSW) r 10.20(2)(a); Supreme Court Rules (NT) r 6.02(1); Uniform Civil Procedure Rules 1999 (Qld) r 105(1); Supreme Court Civil Rules 2006 (SA) r 66(1)(a); Supreme Court Rules 2000 (Tas) r 133; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.02(1); Rules of the Supreme Court 1971 (WA) O 9 r 1(1) (writ), Os 9 r 5 (other originating process). 46 See, for example, Federal Court Rules 2011 (Cth) r 24.16 (subpoenas to give evidence or to produce documents); Court Procedures Rules 2006(ACT) r 661 (notice for non-party production); Uniform Civil Procedure Rules 2005 (NSW) r 10.20(2)(a) (orders for examination or garnishee orders); Supreme Court Rules (NT) r 32.08(2) (applications for orders for non-party discovery, for discovery to identify a defendant, and from a prospective defendant); Uniform Civil Procedure Rules 1999 (Qld) r 529(1) (judgments or other orders for account, where the person to be served was not a party); Supreme Court Civil Rules 2006 (SA) rr 66 and 175(1) (subpoenas); Supreme Court Rules 2000 (Tas) r 498(1) (subpoenas); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.05(1) (subpoenas); Rules of the Supreme Court 1971 (WA) O 36B r 4(1) (subpoenas).

5.33

Page 12 of 63 Chapter 5 Service Even where a document is required to be served only by ordinary service, in most jurisdictions a party may choose to serve personally.47 However, given the time burden of effecting personal service, and the potential for difficulties in finding a time and place at which the person to be served will be physically present, ordinary service is likely to be a more efficient means of effecting service where it is permitted.

47 Federal Court Rules 2011 (Cth) r 10.31(a); Court Procedures Rules 2006 (ACT) r 6420(a); Uniform Civil Procedure Rules 2005 (NSW) rr 10.5(1)(a) and 10.20(1); Supreme Court Rules (NT) r 6.01; Supreme Court Civil Rules 2006 (SA) r 68(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.01; Rules of the Supreme Court 1971 (WA) O 72 r 5(2)(a).

5.34 To serve a document personally, a party must simply give a copy of the document to the person to be served,48 or leave it with them,49 depending on the wording of the rules. In all jurisdictions except Tasmania and Western Australia, special provision is made for situations in which the document is not accepted: in such cases, it will be sufficient for the server to put it down in the person’s presence, and tell them in general terms what the document is.50 In the Australian Capital Territory and

Page 187 New South Wales, further provision is made that personal service will have been effective by putting the document down as near as possible to the person to be served, if the server is prevented from approaching the person to be served by violence or threat of such.51 These rules are necessary to ensure that a plaintiff is not prevented from serving by an uncooperative defendant.

48 Court Procedures Rules 2006 (ACT) r 6405(1); Uniform Civil Procedure Rules 1999 (Qld) r 106(1); Supreme Court Civil Rules 2006 (SA) r 67(1)(a) (personal service is effected if a document is ‘given to, and accepted by, the person to be served’). 49 Federal Court Rules 2011 (Cth) r 10.1; Uniform Civil Procedure Rules 2005 (NSW) r 10.21(1); Supreme Court Rules (NT) r 6.03(1); Supreme Court Rules 2000 (Tas) r 135(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.03(1)(a); Rules of the Supreme Court 1971 (WA) O 72 r 2. 50 Federal Court Rules 2011 (Cth) r 10.12(1); Court Procedures Rules 2006 (ACT) r 6405(2); Uniform Civil Procedure Rules 2005 (NSW) r 10.21(1); Supreme Court Rules (NT) r 6.03(1); Uniform Civil Procedure Rules 1999 (Qld) r 106(2); Supreme Court Civil Rules 2006 (SA) r 67(1)(b) (the person must be ‘offered the document and, if he or she appears unwilling to accept it, is informed orally’ of its nature); Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 6.03(1)(b). 51 Court Procedures Rules 2006 (ACT) r 6405(3); Uniform Civil Procedure Rules 2005 (NSW) r 10.21(2) and (3).

5.35 Depending on the jurisdiction and the type of document which is to be personally served, it may be necessary for the served copy to be a sealed or stamped version, or for the person served to be shown the original document at the time of service.52

52 See, for example, Court Procedures Rules 2006 (ACT) rr 54(1), 61(1) and 6405(1); Uniform Civil Procedure Rules 2005 (NSW) r 6.2(3A); Supreme Court Rules (NT) r 6.03(2); Supreme Court Rules 2000 (Tas) r 132; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.03(2)and 6.03(2.1); Rules of the Supreme Court 1971 (WA) O 72 r 2.

Page 13 of 63 Chapter 5 Service

5.36 There are special rules for service on particular natural or legal persons, such as corporations, partnerships or protected persons, which are addressed separately below.53 Some of these rules apply only to the originating process, whilst others apply generally to any document that is to be served. In all jurisdictions, personal service may also be effected by serving a document on a person’s solicitor,provided that the solicitor has indicated that they accept service and/or are authorised to do so, and in all jurisdictions except Tasmania, service may be effected by some alternative method which has been agreed by the parties; service on solicitors or agents,54 or pursuant to an agreement,55 is also addressed separately below.

53 See 5.64–5.66 for service on companies, 5.67–5.70 for service on partnerships, 5.71–5.74 for service on people carrying on business under a business name, 5.75–5.76 for service on children and persons under a legal incapacity, and 5.81 for service on the Crown. 54 See 5.77 for service on agents and 5.78–5.80 for service on solicitors. 55 See 5.82–5.83 for service by an agreed method.

Methods of ordinary service

5.37 Where a document may be served in accordance with the rules for ordinary service, the serving party may have several options. There is a variety of methods of ordinary service, depending on the jurisdiction. Since the originating process must be served personally, by the time a party has a need to effect ordinary service, its opponent will ordinarily have provided an address for service.

5.38 First, as noted above, in most jurisdictions a party may choose to serve personally even where ordinary service may be effected.56 This is likely to be a less convenient option, because it requires the serving party to find a time and place at which its opponent may be served.

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56 Federal Court Rules 2011 (Cth) r 10.31(a); Court Procedures Rules 2006 (ACT) r 6420(a); Uniform Civil Procedure Rules 2005 (NSW) rr 10.5(1)(a) and 10.20(1); Supreme Court Rules (NT) r 6.01; Supreme Court Civil Rules 2006 (SA) r 68(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.01; Rules of the Supreme Court 1971 (WA) O 72 r 5(2)(a).

5.39 Secondly, in most jurisdictions, ordinary service may be effected by leaving the document at the address for service of the person to be served.57 In some jurisdictions, it is insufficient merely to leave the document: for example, there

Page 14 of 63 Chapter 5 Service might also be a requirement that it be left in a position where it is reasonably likely to come to the person’s attention, or the document might be required to be left with a person, and there may be additional criteria identifying who is a suitable person.58

57 Court Procedures Rules 2006 (ACT) r 6420(b), see also r 6438; Uniform Civil Procedure Rules 2005 (NSW) r 10.5(1)(c)(i); Supreme Court Rules (NT) r 6.06(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 112(1)(a)–(c); Supreme Court Civil Rules 2006 (SA) r 68(2)(a); Supreme Court Rules 2000 (Tas) r 144(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(1)(a); Rules of the Supreme Court 1971 (WA) O 72 r 5(3)(a). 58 Uniform Civil Procedure Rules 2005 (NSW) r 10.5(1)(c); Uniform Civil Procedure Rules 1999 (Qld) r 112(1)(a)–(c); Supreme Court Civil Rules 2006 (SA) r 68(2)(a).

5.40 Thirdly, service may be effected by sending the document by prepaid post to the address for service.59 In some jurisdictions, there is also provision for service to document exchange boxes.60

59 Federal Court Rules 2011 (Cth) r 10.31(b); Court Procedures Rules 2006 (ACT) r 6420(c) and (d); Uniform Civil Procedure Rules 2005(NSW) r 10.5(1)(b)(i); Supreme Court Rules (NT) r 6.06(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 112(1)(d); Supreme Court Civil Rules 2006(SA) r 68(2)(b); Supreme Court Rules 2000 (Tas) r 144(1)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(1)(b); Rules of the Supreme Court 1971 (WA) O 72 r 5(3)(a). 60 Court Procedures Rules 2006 (ACT) r 6420(e), see also r 6420(h) (solicitor’s collection box in registry office); Uniform Civil Procedure Rules 2005 (NSW) r 10.5(2)(a) (solicitor); Supreme Court Rules (NT) r 6.06(1)(d) (solicitor); Uniform Civil Procedure Rules 1999 (Qld) r 112(1)(f)(i) (solicitor); Supreme Court Civil Rules 2006 (SA) r 68(3)(b); Supreme Court Rules 2000 (Tas) r 144(1)(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(1)(d) and (6) (solicitor); Rules of the Supreme Court 1971 (WA) O 72 r 5(3)(b).

5.41 Where a person has not given an address for service, there is also provision in some jurisdictions for a document to be left at, or sent by prepaid post to, the last known address of the person.61

61 Federal Court Rules 2011 (Cth) r 10.31(b), see also the definition of ‘proper address’ in the Dictionary; Court Procedures Rules 2006 (ACT) r 6421; Uniform Civil Procedure Rules 2005 (NSW) rr 10.5(1)(b)(ii) and 10.5(1)(c)(ii); Supreme Court Rules (NT) r 6.06(2); Uniform Civil Procedure Rules 1999(Qld) r 112(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(2); Rules of the Supreme Court 1971 (WA) O 72 r 5(5)(a).

5.42 Fourthly, in some jurisdictions, ordinary service may be effected by sending a facsimile, if a facsimile number has been included in the address for service.62

Page 15 of 63 Chapter 5 Service 62 Federal Court Rules 2011 (Cth) r 10.31(c); Court Procedures Rules 2006 (ACT) rr 6420(f) and 6465; Uniform Civil Procedure Rules 2005(NSW) r 10.5(2)(b) (where the address for service is a solicitor’s address); Uniform Civil Procedure Rules 1999 (Qld) rr 112(1)(e)(i), 112(1)(f)(ii) and 122(1); Supreme Court Civil Rules 2006 (SA) r 68(3)(c); Supreme Court Rules 2000 (Tas) r 144(1)(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.07(1)(e) and (2.1) (solicitor); Rules of the Supreme Court 1971 (WA) O 72 r 5(3)(b) and (4)(c).

5.43 Fifthly, if the person to be served has nominated an email address in their address for service, ordinary service may be effected by sending the document to that email address.63

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63 Federal Court Rules 2011 (Cth) r 10.31(d) and r 10.31(e) (delivery to the lawyer’s email address); Court Procedures Rules 2006 (ACT) rr 6420(g) and 6466; Uniform Civil Procedure Rules 2005 (NSW) r 10.5(2)(c) (where the address for service is a solicitor’s address), see also r 3.7 (which provides that electronic service permitted with the other party’s consent); Supreme Court Rules (NT) r 6.06(1)(ca) and (cb); Uniform Civil Procedure Rules 1999 (Qld) r 112(1)(e)(ii) and 112(1)(f)(iii) ; Supreme Court Civil Rules 2006 (SA) r 68(3)(a); Supreme Court Rules 2000 (Tas) rr 144(1)(c) and 87F(1); Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 6.07(1)(f) and (2.2) (effective 1 August 2017); Rules of the Supreme Court 1971 (WA) O 72 r 5(3)(b) and r 6A.

5.44 Sixthly, as noted earlier, there are some jurisdictions in which a document may be filed electronically, via a dedicated website. In some of those jurisdictions, there is provision in the rules for ordinary service also to be effected electronically,via the website.64

64 Uniform Civil Procedure Rules 2005 (NSW) r 3.7; Supreme Court Civil Rules 2006 (SA) r 45(1)(a)(ii).

Address for, and object of, service

5.45 The originating process is served personally on the defendant; the address for service is, therefore, immaterial for this initial document. However, subsequent documents filed in the proceedings will ordinarily be served using one of the methods by which ordinary service is effected. As noted, ordinary service may be effected by a variety of means, depending on the jurisdiction. Irrespective of the method used, the address is crucial, particularly if it is to be presumed that a document has been notified to a party when it was delivered to a particular address.

Party must indicate address for service

5.46 In all jurisdictions, the originating process must indicate an address for service on the plaintiff serving the originating process.65 Similarly, the first document filed by the defendant must also identify an address for service.66

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65 Federal Court Rules 2011 (Cth) r 8.01(2)(b); Court Procedures Rules 2006 (ACT) rr 50(4)(c) and 60(7)(c); Uniform Civil Procedure Rules 2005 (NSW) r 4.2(1)(g); Supreme Court Rules (NT) rr 5.07(1) and 6.05(1); Uniform Civil Procedure Rules 1999 (Qld) r 17 ; Supreme Court Civil Rules 2006 (SA) r 59(2); Supreme Court Rules 2000 (Tas) rr 101, 128(1) and (2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.07(1) and 6.06(1); Rules of the Supreme Court 1971 (WA) O 6 r 7(b). 66 Federal Court Rules 2011 (Cth) r 5.02; Court Procedures Rules 2006 (ACT) r 101(1)(c) and (2)(c); Uniform Civil Procedure Rules 2005 (NSW) rr 6.1(1) and 6.9, Form 6A; Supreme Court Rules(NT) r 8.06(1), see also r 6.05(2); Uniform Civil Procedure Rules 1999 (Qld) rr 29 (proceedings commenced by application) and 140 (proceedings commenced by claim); Supreme Court Civil Rules 2006 (SA) r 59(2) and (3); Supreme Court Rules 2000 (Tas) rr 159 and 160, see also r 128(3) and (4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.06(2) and 8.06;Rules of the Supreme Court 1971 (WA) O 12 r 2(2)(b) (proceedings commenced by writ), Os 58 r 17(5) (proceedings commenced by originating summons).

5.47 Where a party is represented, the address for service must be the address of the solicitor representing the party in the proceedings in all jurisdictions except Queensland and South Australia.67 This rule promotes efficiency, as it reduces the risk that a solicitor with carriage of the proceedings is unaware of a relevant document

Page 190 owing to a failure of their client to communicate it. It also means that a document which is served by an opponent will immediately come to the attention of a solicitor; there will be no delay caused by the need for a party to accept service of a document and then, in turn, forward it to its solicitor.

67 Federal Court Rules 2011 (Cth) r 11.01(2); Court Procedures Rules 2006 (ACT), definition of ‘address for service’ in Dictionary,para (a); Uniform Civil Procedure Rules 2005 (NSW) r 4.5(2); Supreme Court Rules (NT) r 6.05(1)(a) and r 6.05(2)(a); Supreme Court Rules 2000 (Tas) r 128(1) and (3); Supreme Court(General Civil Procedure) Rules 2015 (Vic) rr 6.06(1)(a) and 8.06(2)(a); Rules of the Supreme Court 1971 (WA) O 71A r 3(2).

5.48 The other important aspect of the rule is that a party who has nominated its solicitor’s address as the address for service is entitled to leave the matter entirely in the hands of its solicitor, and disregard communications which are addressed directly to it. There are two good policy reasons for having such a rule. First, large organisations in particular are relieved of the need to maintain administrative facilities for dealing with legal documents filed in the course of proceedings(save, of course, for the originating process). It is easy to imagine circumstances in which an employee might be served with a document, but have no knowledge of the litigation in question, nor the significance of the document, nor the need to forward it to the organisation’s lawyers. It would be unfair to treat the organisation as having been served in those circumstances. Secondly, the model rules of conduct for Australian lawyers forbid communications between a solicitor and their opponent’s client.68 Such rules, and the rule requiring that the solicitor’s address be the address for service, serve the further purpose of protecting litigants from direct dealings with their opponent’s solicitor in circumstances where they have chosen to be represented.

68 Law Council of Australia, Australian Solicitors’ Conduct Rules, June 2011, available online

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5.49 There are some constraints on the address which may be nominated as the address for service. For example, in some jurisdictions, the address for service must be an address at which documents can be left during business hours.69 In all jurisdictions, the address for service must satisfy certain geographical requirements.70 Given that ordinary service may be effected by a variety of methods (as discussed above), the rules make provision for various contact details to be notified in the address for service.

69 Federal Court Rules 2011 (Cth) r 11.01(1); Uniform Civil Procedure Rules 2005 (NSW) r 4.5(1)(a); Supreme Court Civil Rules 2006 (SA) r 58(3)(a), but see also (b); Supreme Court Rules 2000 (Tas) r 128(5)(a). 70 Federal Court Rules 2011 (Cth) r 11.01(1); Court Procedures Rules 2006 (ACT), definition of ‘address for service’ in Dictionary;Uniform Civil Procedure Rules 2005 (NSW) r 4.5(1), but see also r 4.5(3); Supreme Court Rules (NT) r 6.05; Uniform Civil Procedure Rules 1999 (Qld) r 17(1)(a)(ii) and (1)(b)(iv); Supreme Court Civil Rules 2006 (SA) r 58(4)(b); Supreme Court Rules 2000 (Tas) r 128(2) and (4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.07(1)(a) and (c),6.06(1)(b), and 8.06(1) and (2); Rules of the Supreme Court 1971 (WA) O 71A r 3(1)(a) and 3(2)(b) and (c).

Service by an alternative method

5.50 There may be circumstances in which a defendant cannot be located for the purpose of effecting personal service of the originating process. Further, despite the variety of methods available for effecting ordinary service, there are bound to be

Page 191 exceptional situations where service by those methods will not be sufficient to notify the defendant of the served document.

5.51 To address these contingencies, there are three types of rules which provide yet further options to a party who encounters difficulties in effecting service. First, in all jurisdictions, there is provision for substituted service. Substituted service is essentially service by another method not provided for in the rules, and can be used where the serving party has applied to the court, in advance of effecting service, for an order for substituted service. Secondly, all jurisdictions except Western Australia make provision for informal service; this occurs where a document has, as a matter of fact, come to the attention of the opponent, but via a method which is not provided for in the rules. It might be thought of as an equivalent to substituted service, but the order is made after the act of service. Finally, most jurisdictions make provision for service by filing. Where a person has failed to provide an address for service, the act of filing documents by other parties will be treated as valid ordinary service. As will be discussed further below,71 this is a rule which highlights the conceptual distinction between service and notification, and also the responsibility that is placed on parties for facilitating their own notification.

71 See 5.57–5.58.

Substituted service

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5.52 The rules in every Australian jurisdiction make provision for ‘substituted service’ (in South Australia, ‘presumptive service’). The substance of the rule is the same in each jurisdiction: where a party is required to serve a document, but it is impracticable for the document to be served in the required manner, the court may make an order permitting the document to be served in some other way.72 In Western Australia, an order for substituted service may only be made where the document is usually required to be served personally; in all other jurisdictions, the rule may apply in any situation in which service is required. In practice,however, an order for substituted service will more commonly be made in circumstances where personal service is required: by the time that ordinary service is required, both parties will ordinarily have identified addresses for service, and (as noted above) a party will have effected service if it sends a document to a nominated address, irrespective of whether its opponent actually receives it.

72 Federal Court Rules 2011 (Cth) r 10.24; Court Procedures Rules 2006 (ACT) r 6460; Uniform Civil Procedure Rules 2005 (NSW) r 10.14; Supreme Court Rules (NT) r 6.09;Uniform Civil Procedure Rules 1999 (Qld) r 116; Supreme Court Civil Rules 2006 (SA) r 69; Supreme Court Rules 2000 (Tas) r 141; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.10; Rules of the Supreme Court 1971 (WA) O 72 r 4.

5.53 In order to be granted an order for substituted service, it is unnecessary for the applicant to show that service by the prescribed method would be impossible.73 As Mason J explained in Foxe v Brown :74

Page 192   In general, for an order for substituted service to be made it must be shown: (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant.

Although such an order will usually be made after unsuccessful attempts at service via the prescribed method, an order for substituted service may be made before the document in question has been filed at court.75 For example, such an order may be appropriate where there is some urgency about service, but it is known that a party cannot be served personally.76 Similarly, while failed attempts at service may be relied upon as evidence that the prescribed method of service is impracticable, an order for substituted service may be made in the absence of any previous attempt to serve, provided that it can be established in some other way that service by the prescribed method would be impracticable.77

73 Attorney General for (WA) v Lashansky [2014] WASC 42 at [6]–[11] FCA 664 at [17]

; Titan Enterprises (Qld) Pty Ltd v Cross [2016]

per Edelman J.

74 (1984) 58 ALR 542 at 546

(citation omitted); this test has been adopted recently in Embrey v Smart [2014] QCA 75

and Attorney General for (WA) v Lashansky [2014] WASC 42 at [9]–[10]

. See the discussion in British American

Tobacco Australasia Ltd v Taleb (No 1) [2012]FCA 1065 at [25]–[30] per Dodds-Streeton J in the context of the Federal Court Rules. In Foxe v Brown, Mason J went on to note, however, that as an exception to the second limb of the test, there had been cases in which courts had ordered substituted service to be effected ‘on a third party motor

Page 19 of 63 Chapter 5 Service vehicle insurer against whom a judgment obtained may ultimately be enforced’, even if such service would not be likely to bring the writ to the attention of the defendant. 75 Embrey v Smart [2014] QCA 75 at [22],[26] per Applegarth J (Muir and Morrison JJA agreeing). 76 Embrey v Smart [2014] QCA 75 at [23]–[24] per Applegarth J (Muir and Morrison JJA agreeing). 77 Embrey v Smart [2014] QCA 75 at [27] per Applegarth J (Muir and Morrison JJA agreeing).

5.54 In recent years, courts in many jurisdictions have had to consider whether an order may be made for substituted service via social media websites.78 The New South Wales Court of Appeal considered the validity of service via email and Facebook in Flo Rida v Mothership Music Pty Ltd .79 The plaintiff there had sought unsuccessfully to effect service of the originating process on an American performer who was temporarily present in New South Wales. The plaintiff obtained an order in the District Court for substituted service,enabling service via email and Facebook, and ultimately a default judgment was ordered. The defendant was successful in having the judgment set aside by the Court of Appeal. Macfarlan JA (with whom Ward and Gleeson JJA agreed) observed that the District Court could not use its power to order substituted service to make an order which permitted service on a defendant outside Australia.80 On the facts of the case, there had been insufficient evidence that the order for substituted service was likely to bring the originating process to the defendant’s attention while he was present in Australia.81 In respect of service via Facebook, Macfarlan JA found further that there had been insufficient evidence that the page was in fact controlled by the defendant, or that the plaintiff ’s post on that page would be likely to come to the defendant’s attention in a timely manner.82

Page 193

78 See generally the Honourable Justice M J Beazley AO, ‘Social Media and the Courts: Service of Process’, Address at the Fourth Judicial Seminar on Commercial Litigation, 16–18 May 2013, Singapore; available online at (accessed 1 May 2017). 79 [2013] NSWCA 268

.

80 [2013] NSWCA 268 at [31]–[35]. This followed Laurie v Carroll (1958) 98 CLR 310 at 322–4 232 and accompanying text.

(per curiam): see note

81 [2013] NSWCA 268 at [37], [39]. 82 [2013] NSWCA 268 at [38].

5.55 As Beazley JA has observed extra-judicially, the advantages of substituted service via social media must be balanced against three difficulties.83 First, it may be difficult to establish whether a social media profile is in fact controlled by the defendant. Secondly, as in Flo Rida v Mothership Music Pty Ltd ,84 it may be difficult to establish whether the defendant uses the social media site with sufficient frequency that the served document is likely to come to their attention in a timely manner. Finally, again as in Flo Rida, it may be difficult to establish the location of the defendant, and consequently whether there are any jurisdictional barriers to the court making the order. This final point will also apply to orders for substituted service via email.

Page 20 of 63 Chapter 5 Service 83 The Honourable Justice M J Beazley AO, ‘Social Media and the Courts: Service of Process’, Address at the Fourth Judicial Seminar on Commercial Litigation, 16–18 May 2013, Singapore; available online at (accessed 1 May 2017), [44]–[48]. 84 [2013] NSWCA 268

.

Informal service

5.56 In all jurisdictions except for Western Australia, provision is made for informal service. The substance of the rule in most jurisdictions is that where a document has been served otherwise than as required by the rules, but it has in fact come to the attention of the served party, the court may order that service will be treated as effective.85 The effect of the rule is that where actual notification is shown to have taken place, the serving party’s failure to comply with the procedural requirements can be disregarded. In New South Wales and the Northern Territory, it is necessary for the serving party to show only that steps have been taken for the purpose of bringing the document to the attention of the other party.86 However, given that informal service will only be effective upon court order, it will be desirable for parties to serve documents in compliance with the rules. In all jurisdictions, informal service extends to personal service as well as ordinary service.87

85 Federal Court Rules 2011 (Cth) r 10.23; Court Procedures Rules 2006 (ACT) r 6461; Uniform Civil Procedure Rules 1999 (Qld) r 117; Supreme Court Civil Rules 2006 (SA) r 67(2)(b); Supreme Court Rules 2000 (Tas) r 146B; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.11. 86 Uniform Civil Procedure Rules 2005 (NSW) r 10.14(3), (3A) and (4); Supreme Court Rules (NT) r 6.10. 87 In South Australia, the relevant rule provides that personal service will be presumed if the document is shown to have come to the attention of the served party: Supreme Court Civil Rules 2006 (SA) r 67(2)(b). However, given that ordinary service may be effected by personal service (r 68(1)), the rule effectively applies to any document.

Service by filing

5.57 In all jurisdictions except for Queensland and South Australia, it is possible for a party’s act of filing to be treated as effective service. The detail of the rule differs slightly between jurisdictions, but the substance is the same:where a party has failed to provide an address for service, other parties may effect ordinary service on it merely by filing a document in court.88 The rule does not apply where personal service is required.

Page 194 No further steps are required to notify the party of the document, save for in the Australian Capital Territory, where the document must also be sent by prepaid post to the last-known address.89

88 Federal Court Rules 2011 (Cth) r 10.25; Court Procedures Rules 2006 (ACT) r 6421; Uniform Civil Procedure Rules 2005 (NSW) r 10.16; Supreme Court Rules (NT) r 6.11,see also r 6.06(3) and (3.1); Supreme Court Rules 2000 (Tas) rr 146 and 146A; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.12, see also r 6.07(3) and (3.1); Rules of the Supreme Court 1971 (WA) O 72 r 8. 89 Court Procedures Rules 2006 (ACT) r 6421(2)(b).

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5.58 The rule enabling service by filing demonstrates clearly the conceptual distinction between service and notification. Clearly, there can be little expectation that a document which is merely filed by a party will come to the attention of another party. However, the rule applies only where there is no address for service. The effect of the rule is, therefore, that a party who fails to enter an appearance will not receive documents which are filed in the proceedings90 — although it must be recalled that in all jurisdictions, parties are entitled to inspect and take copies of documents on the court file. Failure to enter an appearance will not, therefore, have the effect of thwarting the future progress of the proceedings by other parties. Instead, the consequences of the failure to provide an appearance will fall entirely on that party, who will then be responsible for inspecting the court file to inform itself about the proceedings.

90 Save in the Australian Capital Territory, where a document must also be posted to the last-known address.

Service on particular defendants

5.59 In each jurisdiction, there are special rules for service which apply for particular categories of defendant, such as companies or partnerships. In the following sections, some of these special rules will be identified and discussed. The focus of this section will be on categories of defendants — such as companies or partnerships — which are treated as a special category in every jurisdiction, or in almost every jurisdiction.

5.60 However, this is not an exhaustive list. Various jurisdictions have additional special rules for service for additional categories of defendant. For example, in some jurisdictions, there are special rules of service for prisoners and detainees,or for incorporated associations. Further, in some jurisdictions, there are special rules of service for proceedings which are commenced under particular legislative provisions.

5.61 Some degree of heterogeneity concerning rules of service is to be expected. For example, service on partnerships raises special problems which are different to the problems which arise for serving children; it is therefore rational to have different rules of service for each of these special categories. As a further example, there are sometimes special rules for service of particular kinds of proceedings brought under legislative enactments. The diversity of legislation across the federation means that these special rules might be applicable only in some jurisdictions.

5.62 What is less explicable is the degree of heterogeneity between jurisdictions as to the specific rules for service in particular circumstances which have special rules in each jurisdiction. For example, there seems to be no obvious reason why a partnership may be served by serving any one or more of the partners in all other jurisdictions,

Page 22 of 63 Chapter 5 Service

Page 195 but not in New South Wales. Similarly, each jurisdiction has a rule which, in effect, enables solicitors to accept service of the originating process. However, the detail of the rule is different in each jurisdiction.

5.63 As was observed in Chapter 4,91 Australian legal practitioners increasingly practise across jurisdictions. Further, interstate commerce is common, with the result that parties to proceedings may be located in different jurisdictions. Unnecessary diversity in the rules of service creates two problems. First, there is a risk that solicitors will make mistakes, owing to unfamiliarity with the rules of another jurisdiction. This risk is amplified in the context of the rule concerning acceptance of service by a solicitor.Secondly, unnecessary diversity creates inefficiency, insofar as practitioners need to understand not only the specific rules concerning service in their own jurisdiction, but potentially other jurisdictions.

91 See Chapter 4, 4.53–4.55.

Service on companies

5.64 Service on companies and other similar organisations can give rise to special problems. Because companies have no physical existence, rules are needed to determine how and where they can be served. Because companies can be very large, with many administrative branches and even more places of business, the rules need to ensure, first, that parties know how to serve such organisations, and, secondly, that service is carried out in such a way that the documents will come to the attention of the proper officers of the organisation.

5.65 The Corporations Act 2001 (Cth) provides that a document may be served on a company92 by leaving a document at, or posting it to, the company’s registered office, or delivering the document personally to a director who is resident in Australia or an external territory.93 Provision is also made for service where a liquidator or administrator has been appointed; in both cases, service on the company may be effected by leaving a document at, or posting it to, the address of the liquidator or administrator’s office which has been lodged with ASIC.94

92 That is, a company which is registered under the Act: Corporations Act 2001 (Cth) s 9 (definition of ‘company’). 93 Corporations Act 2001 (Cth) s 109X(1)(a) and (b). 94 Corporations Act 2001 (Cth) s 109X(1)(c) and (d).

5.66 Separate provision is made for service on ‘registered bodies’, which may be either registered Australian bodies95 or registered foreign companies.96

Page 23 of 63 Chapter 5 Service

Page 196

95 A registrable Australian body is a body corporate (subject to certain exceptions), or an unincorporated body that may hold property, or be sued, under the law of the place where it is formed: Corporations Act 2001 (Cth) s 9 (definition of ‘registrable Australian body’). Such bodies may be registered under the provisions of Pt 5B.2 Div 1A, and are then ‘registered Australian bodies’: Corporations Act 2001 (Cth) s 9 (definition of ‘registered Australian body’). 96 Corporations Act 2001 (Cth) s 9 (definition of ‘registered body’). A registered foreign company is a foreign company which is registered under Div 2 of Pt 5B.2 of the Act: s 9 (definition of ‘registered foreign company’).

Service on partnerships

5.67 Service on a partnership also raises a special problem. A plaintiff serving an originating process must effect personal service. However, there may be several partners, or the partnership may carry on business at a physical location which is staffed by employees who are not partners. Partnership therefore raises the special question: on whom must service be served, in order to effect service on the partnership? In all jurisdictions, there are special rules concerning the service of an originating process (or, more generally, any document requiring personal service) on a partnership.

5.68 In all jurisdictions except New South Wales, the originating process may be served on a partnership by serving any one or more of the partners.97 Service on one partner constitutes service on the partnership; in many jurisdictions, the rules explicitly provide that all persons who are partners at the time the proceedings were commenced will be taken to be served with the originating process when service has been effected on one.98 In some jurisdictions, if the partnership has been dissolved before the commencement of proceedings, service must be effected on all persons against whom relief is sought,99 or, in the Federal Court, against any person who was a partner at the time the cause of action arose.100 Persons who become partners after the originating process has been issued may also need to be served separately.101

97 Federal Court Rules 2011 (Cth) r 10.5(1)(a) (applies to personal service generally); Court Procedures Rules 2006 (ACT) r 6433(1)(a);Supreme Court Rules (NT) r 17.03(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 114(1)(a); Supreme Court Civil Rules 2006 (SA) r 64(1)(a) (applies to service of any document);Supreme Court Rules 2000 (Tas) r 310(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 17.03(1)(a); Rules of the Supreme Court 1971 (WA) O 71 r 3(1)(a). 98 Federal Court Rules 2011 (Cth) r 10.5(2) (applies to personal service generally); Court Procedures Rules 2006 (ACT) r 6433(2); Supreme Court Rules (NT) r 17.03(2); Uniform Civil Procedure Rules 1999 (Qld) r 114(2); Supreme Court Rules 2000 (Tas) r 310(2);Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 17.03(2). 99 Court Procedures Rules 2006 (ACT) r 6433(4) and (5); Supreme Court Rules (NT) r 17.03(3); Supreme Court Civil Rules 2006 (SA) r 64(2) (applies to service of any document); Supreme Court Rules 2000 (Tas) r 310(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 17.03(3); Rules of the Supreme Court 1971 (WA) O 71 r 3(2). 100 Federal Court Rules 2011 (Cth) r 10.5(3) (applies to personal service generally). 101 Court Procedures Rules 2006 (ACT) r 6433(5); Uniform Civil Procedure Rules 1999 (Qld) r 114(3).

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5.69 There is also provision in each jurisdiction for serving a person at the partnership’s place of business. The details of these provisions vary, but in substance they all enable personal service to be effected on a person who appears to be engaged in the business of the partnership (some rules require that the person served must appear to exert control or management of the business).102

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102 Federal Court Rules 2011 (Cth) r 10.5(2) (applies to personal service generally); Court Procedures Rules 2006 (ACT) r 6433(1)(b); Uniform Civil Procedure Rules 2005 (NSW) r 10.11(2)(a) (applies to service of any document); Supreme Court Rules (NT) r 17.03(1)(b), see also 17.03(4); Uniform Civil Procedure Rules 1999 (Qld) r 114(1)(b); Supreme Court Civil Rules 2006 (SA) r 64(1)(b) (applies to service of any document); Supreme Court Rules 2000 (Tas) r 310(1)(b),see also (4) and (5); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 17.03(1)(b), see also (4); Rules of the Supreme Court 1971 (WA) O 71 r 3(1)(b).

5.70 In the Australian Capital Territory, New South Wales and Queensland, personal service may also be effected by serving at the registered office of an incorporated partnership.103 This provision treats incorporated partnerships in a similar manner to corporations.

103 Court Procedures Rules 2006 (ACT) r 6433(1)(c); Uniform Civil Procedure Rules 2005 (NSW) r 10.11(2)(b) (applies to service of any document); Uniform Civil Procedure Rules 1999 (Qld) r 114(1)(c).

Service on people using business name

5.71 A natural person may carry on business under a business name. Where a defendant has carried on business under a business name, the plaintiff may choose to commence proceedings against them under the business name.

5.72 Most jurisdictions make special provision for service on a party operating under a business name.104 These are substantially similar to the rules concerning service on a partnership.

104 South Australia and Tasmania are the exceptions. The South Australian rules provide that a person carrying on business under a business name may sue and be sued in that name: Supreme Court Civil Rules 2006 (SA) r 85. The Tasmanian rules provide simply that a person carrying on business under a trading name may be sued in that other name as if it were a firm name: Supreme Court Rules 2000 (Tas) r 314.

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5.73 In the Northern Territory, Victoria and Western Australia, the rules concerning service on partnerships are applied directly (with necessary changes).105 In the Federal Court, any document that is to be served personally on a defendant in their business name may be served either on that person, or on any adult who appears to be engaged in the business.106 In Queensland, the originating process may be served at the defendant’s place of business on any person who appears to have control or management of the business.107

105 Supreme Court Rules (NT) r 17.10; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 17.10; Rules of the Supreme Court 1971(WA) O 71 r 12. 106 Federal Court Rules 2011 (Cth) r 10.06. 107 Uniform Civil Procedure Rules 1999 (Qld) r 113.

5.74 In the Australian Capital Territory and New South Wales, a distinction is drawn between registered and unregistered business names. Again, however, the substance of the rules largely reflects the rules concerning service on a partnership.108

108 Court Procedures Rules 2006 (ACT) r 6434; Uniform Civil Procedure Rules 2005 (NSW) rr 10.09 and 10.10.

Service on children and persons under a legal incapacity

5.75 In all jurisdictions, special provision is made for service on children and persons under a legal incapacity (for example, by reason of a mental disability). The details of the provisions vary between jurisdictions, but in substance they are the same. The general rule is that children and persons under a legal incapacity ought not to be served; rather, service ought to be effected on a litigation representative, a parent or

Page 198 guardian (in the case of a child), a person with whom the party lives, or a person who is responsible for the care of the party.109

109 Federal Court Rules 2011 (Cth) rr 10.09 and 10.10; Court Procedures Rules 2006 (ACT) rr 6435 and 6436; Uniform Civil Procedure Rules 2005 (NSW) r 10.12; Supreme Court Rules (NT) r 6.04; Uniform Civil Procedure Rules 1999 (Qld) rr 108 and 109; Supreme Court Civil Rules 2006 (SA) r 63; Supreme Court Rules 2000 (Tas) r 136; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.04(b) and (c); Rules of the Supreme Court 1971 (WA) O 71 r 13.

5.76

Page 26 of 63 Chapter 5 Service However, care should be taken in complying with the details of the provisions in each jurisdiction. For example, in some jurisdictions, certain documents must be served personally on the party in any event, and in some jurisdictions the rules refer to (and must therefore be understood in the context of) legislation concerning the protection of children or persons under a legal incapacity.

Service on agents

5.77 In most jurisdictions, there is provision for service of the originating process to be effected on an agent of the defendant in limited circumstances. In short, where a principal who resides outside of the jurisdiction has entered into a contract within the jurisdiction through an agent, a plaintiff who wishes to commence proceedings against the principal in respect of that contract may serve the originating process on the agent. However, leave of the court is required before the agent is served,and the originating process must also be sent to the defendant/principal by post.110 In South Australia, the court has a general power to permit service of any document on an agent of the person to be served.111

110 Court Procedures Rules 2006 (ACT) r 6462; Supreme Court Rules (NT) r 6.12; Uniform Civil Procedure Rules 1999 (Qld) r 118; Supreme Court Rules 2000 (Tas) r 139; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.13; Rules of the Supreme Court 1971 (WA) O 9 r 2. 111 Supreme Court Civil Rules 2006 (SA) r 65.

Service on solicitors

5.78 As explained earlier in the chapter,112 a party who is represented must give its solicitor’s address as the address for service in all jurisdictions except Queensland and South Australia. This rule serves two important purposes. First, it promotes efficiency, as it means that documents served by opponents will immediately come to the attention of the solicitor conducting the proceedings. It avoids the possibility of delay or default by a client in providing important documents to its solicitor. Secondly, it entitles parties to leave matters entirely in the hands of their solicitors, and disregard communications which are directed to them. This may be particularly useful for large organisations (where there might be a risk of staff failing to realise the importance of served documents), and for litigants who wish to avoid direct dealings with their opponent’s solicitors.

112 See 5.47–5.48.

5.79 As a consequence of this rule, the usual position will be that a solicitor will accept service of all documents after proceedings have been commenced and each

Page 199 party has provided an address for service. However, in all jurisdictions,there is a general provision enabling solicitors to accept service, either of all documents, or documents which require personal service, or of the originating process.

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5.80 The form of the rule differs quite substantially between jurisdictions. However, in each case, the significant consequence of the rule is that a solicitor may accept service of an originating process, provided that the solicitor has offered some acknowledgment that they accept service and/or have authority to do so.113

113 Federal Court Rules 2011 (Cth) r 10.22; Court Procedures Rules 2006 (ACT) r 6464; Uniform Civil Procedure Rules 2005 (NSW) r 10.13; Supreme Court Rules (NT) r 6.08;Uniform Civil Procedure Rules 1999 (Qld) r 115; Supreme Court Civil Rules 2006 (SA) r 67(1)(c); Supreme Court Rules 2000 (Tas) r 134; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.09; Rules of the Supreme Court 1971 (WA) O 9 r 1(2).

Service on the Crown

5.81 In each jurisdiction, special provision is made for the service of documents on the Crown. These rules identify which person must be served when the Crown is a party to proceedings; it is most commonly the Attorney-General or Crown Solicitor.114

114 Judiciary Act 1903 (Cth) s 63; Court Procedures Rules 2006 (ACT) r 33; Crown Proceedings Act 1988 (NSW) s 6 and Uniform Civil Procedure Rules 2005 (NSW) r 10.23; Supreme Court Rules (NT) r 6.04(d) and (e); Crown Proceedings Act 1980 (Qld) s 19; Crown Proceedings Act 1992 (SA) s 13; Crown Proceedings Act 1993 (Tas) s 13; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.04(d) and (e); Rules of the Supreme Court 1971 (WA) O 72 r 3A.

Service by agreed method

5.82 In all jurisdictions except Tasmania, the parties may agree between them as to how documents are to be served. For example, the parties might agree that service would be most conveniently effected by a particular method or at a particular place.This might be particularly useful in enabling service of the originating process: whilst personal service is required in all jurisdictions, parties who have engaged in pre-action negotiations may find it more convenient for the originating process to be served by post or email, for example.

5.83 In most jurisdictions,115 the substance of the rule is that if parties agree that documents should be served in a particular way, then documents may be served in accordance with that agreement.116 Such an agreement may be made before or after proceedings have been commenced, and may apply to documents (including the originating process) which are ordinarily required to be served personally.

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Page 28 of 63 Chapter 5 Service 115 The exception is Western Australia: in short, the equivalent rule there provides that where parties to a contract have identified the Supreme Court as the venue for any dispute, and nominated a method of service for originating process in that contract, then service of the originating process may be effected in accordance with that method: Rules of the Supreme Court 1971 (WA) O 9 rr 3 and 5. 116 Federal Court Rules 2011 (Cth) r 10.28; Court Procedures Rules 2006 (ACT) r 6463; Uniform Civil Procedure Rules 2005 (NSW) r 10.06; Supreme Court Rules (NT) r 6.13;Uniform Civil Procedure Rules 1999 (Qld) r 119; Supreme Court Civil Rules 2006 (SA) rr 67(1)(d) and 68(2)(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.14.

Deemed service When service will be deemed

5.84 Because the originating process is served personally in Australia, the concept of deemed service assumes less importance in Australian rules of court than it does in English civil procedure.117 Nevertheless, there are two types of rules which may be found in some Australian jurisdictions which have the effect of deeming service to have taken place at a particular time.

117 Cf Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [5.69]–[5.74].

5.85 First, in some jurisdictions, provision is made for a defendant to be presumed to have been served with the originating process if the defendant has filed some document in response.118 Usually, the date on which the originating process will be presumed to have been served will be the date on which the defendant’s document is filed.119

118 Federal Court Rules 2011 (Cth) r 10.11; Court Procedures Rules 2006 (ACT) r 73; Supreme Court Civil Rules 2006 (SA) r 67(2)(a); Rules of the Supreme Court 1971 (WA) O 9 r 1(3) (filing unconditional appearance). The South Australian rules also provide for presumed service if ‘it is established in some other way that the document and its contents have come to the attention of the person to be served’: Supreme Court Civil Rules 2006 (SA) r 67(2)(b).The utility of the South Australian rule is questionable: service may be proved in any event, and the advantage of presumed service in the event that the defendant files a document in response is that the plaintiff need not seek a court order. 119 Federal Court Rules 2011 (Cth) r 10.11; Court Procedures Rules 2006 (ACT) r 73(2); Rules of the Supreme Court 1971 (WA) O 9 r 1(3). The South Australian rules do not specify the date which will be presumed.

5.86 Secondly, in respect of ordinary service, all jurisdictions have various provisions for identifying when a document which is served at a particular time will be taken to be received, depending on the method of service which has been used (as discussed above).120

120 See 5.31 above.

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Proof of service

5.87 There are times when it will be critical for a party to establish that service has been effected. The most obvious example is where a party is moving for default judgment. If a judgment is to be entered in a plaintiff ’s favour in circumstances where the defendant has not entered an appearance, let alone taken any other step in the proceedings, then the court should be satisfied that the defendant was in fact served with the originating process; in most jurisdictions, there is a rule to that effect.121

121 Court Procedures Rules 2006 (ACT) r 1119(1)(a); Uniform Civil Procedure Rules 2005 (NSW) r 16.3(2)(a); Supreme Court Rules (NT) r 21.01(3)(a); Uniform Civil Procedure Rules 1999 (Qld) r 282; Supreme Court Rules 2000 (Tas) r 346(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.01(3)(b); Rules of the Supreme Court 1971 (WA) O 13 r 1(3). But contrast Supreme Court Civil Rules 2006 (SA) r 229.

5.88 The rules in most jurisdictions indicate what should be contained in an affidavit of service.122 Such a rule is useful to the serving party, as it enables it to make a

Page 201 contemporaneous record of the necessary facts. Given that the identity of the person served is critical, it is unsurprising to find that some rules of court make express provision that a statement by a person served as to their identity or capacity will be treated as evidence of the same.123 This relieves the serving party of the need to independently verify the identity of the person on whom it serves a document, who may be uncooperative.

122 Court Procedures Rules 2006 (ACT) r 6467; Uniform Civil Procedure Rules 2005 (NSW) r 35.8; Supreme Court Rules (NT) r 6.16; Uniform Civil Procedure Rules 1999 (Qld) r 120; Supreme Court Civil Rules 2006 (SA) r 72; Supreme Court Rules 2000 (Tas) r 143; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.17;Rules of the Supreme Court 1971 (WA) O 72 r 7. 123 Federal Court Rules 2011 (Cth) r 10.21; Court Procedures Rules 2006 (ACT) r 6468; Uniform Civil Procedure Rules 2005 (NSW) r 10.27; Supreme Court Rules (NT) r 6.07;Uniform Civil Procedure Rules 1999 (Qld) r 121; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.08.

Extending the period for service of the originating process Introduction

5.89 The need for placing a time limit on service of the originating process is dictated by the need for finality to litigation and by the very existence of limitation periods. The period allowed for service seeks to ensure that the uncertainty of litigation is not unreasonably extended. However, unlike the limitation period, which the court has no power to extend, except within narrowly defined statutory exceptions,124 the court has always had a power to extend the time for service of the originating process. This discretionary power reflects the recognition that some latitude must exist in order to deal with situations where it has proved difficult to carry out service within the time limits established by

Page 30 of 63 Chapter 5 Service the rules. However, as McHugh J observed in Brisbane South Regional Health Authority v Taylor ,125 the discretion to extend time ‘must be exercised in the context of the rationales for the existence of limitation periods’. McHugh JA went on to emphasise the fact that delay in proceedings diminishes the quality of justice, as evidence deteriorates or becomes unavailable.126 In the same judgment, Toohey and Gummow JJ emphasised another aspect of limitation periods: ‘to preclude stale claims which a defendant would find it hard to resist by reason of effluxion of time’.127 Although Brisbane South concerned an application to extend the limitation period, the observations of McHugh J in particular have been relied upon in applications to extend the time for service.128

124 See Chapter 26, 26.48–26.60 for a discussion of the circumstances in which the court may extend the limitation period. 125 (1996) 186 CLR 541 at 551

per McHugh J (Dawson J agreeing); see also at 564–5 and 570 per Kirby J.

126 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552

per McHugh J.

127 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

per McHugh J.

128 See, for example, the leading case of Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [29]–[30]

per Ipp JA (Tobias and McColl JJA agreeing).

5.90 The approach to the exercise of the power to extend the time for service of the originating process is bound to be influenced by the relative importance that is attached to the need for an end to litigation, on the one hand, and on the other hand the imperative that meritorious claims should not be defeated by purely procedural objections. It is also likely to be influenced by the general policy towards litigant

Page 202 failure to comply with time limits. The philosophy of justice on the merits, which was predominant in Australian civil procedure until the introduction of overriding objectives which prioritised the need for timeliness and costeffectiveness,129 undervalued the importance attached to timely compliance, with the result that the extensions of time were fairly easy to obtain, both before and after the expiry of the time for service.130 As will be seen, modern Australian courts will grant extensions of time for service of the originating process only in relatively limited circumstances.

129 Queensland v JL Holdings (1997) 189 CLR 146

; cf Aon Risk Services Australia Ltd v Australian National University

(2009) 239 CLR 175; [2009] HCA 27 at [92]–[93],[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [51]

(per curiam).

130 See, for example, Victa v Johnson (1975) 10 SASR 496 at 502–3

per Bray CJ (Walters and Wells JJ agreeing),

approved in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 342–4 per Stephen J, and see also at 345–6. The history of the court’s approach to extensions of time for service was discussed in McIntosh v Maitland [2016] QSC 203 at [25]–[35]

Applications to extend time

5.91

per Jackson J.

Page 31 of 63 Chapter 5 Service In all jurisdictions, a plaintiff may apply to extend the time for service of the originating process. In most jurisdictions, there is a specific rule governing applications for extension of time to serve an originating process,131 in addition to the general power of the court to extend or abridge time.132 In the Federal Court, and in New South Wales, applications to extend the time for service are made under the general power of the court to extend or abridge time.133 Where the rules contain both a specific provision concerning extensions of time for the validity of the originating process, and a general rule enabling the court to extend time or correct an irregularity, the court should not use the broad discretion of the general rule to undermine the policy of the specific provision.134 Where proceedings are commenced under the Corporations Act, the Corporations Rules (which are uniform across jurisdictions) set the time in which service must be effected, but extensions of time will be dealt with in accordance with the general rules concerning extension of time of the jurisdiction in which proceedings are commenced; these rules are substantially the same across Australia.135

Page 203

131 Court Procedures Rules 2006 (ACT) r 74; Supreme Court Rules (NT) r 5.12; Uniform Civil Procedure Rules 1999 (Qld) r 24; Supreme Court Civil Rules 2006 (SA) r 39; Supreme Court Rules 2000 (Tas) r 107; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12; Rules of the Supreme Court 1971 (WA) O 7 r 1. There is no specific rule concerning an extension of time for service of the originating process in the Federal Court or in New South Wales. 132 Federal Court Rules 2011 (Cth) r 1.39; Court Procedures Rules 2006 (ACT) r 6351; Uniform Civil Procedure Rules 2005 (NSW) r 1.12; Supreme Court Rules 2016 (NT) r 3.02; Uniform Civil Procedure Rules 1999 (Qld) r 7; Supreme Court Civil Rules 2006 (SA) r 117(2)(b); Supreme Court Rules 2000 (Tas) r 52; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 3.02; Rules of the Supreme Court 1971 (WA) O 3 r 5. 133 Federal Court Rules 2011 (Cth) r 1.39; Uniform Civil Procedure Rules 2005 (NSW) r 1.12. 134 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158 at [44]–[50] per Ipp J (discussing the relationship between the specific powers under Os 7 r 1 and the general powers under Os 2 r 1 and Os 3 r 5); cf at [20] per Malcolm CJ (agreeing with Ipp J). 135 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [104]–[107],[117] Warren CJ, Tate and Beach JJA.

, and see also at [7]–[14] per

5.92 An application to extend the time for service may be heard ex parte; indeed, this is the usual procedure, although in some jurisdictions the plaintiff may be required to give notice to the defendant.136 However, where an application is heard ex parte, the defendant, once served, may apply to have the extension set aside. In most jurisdictions, such an application will be determined at a hearing de novo; that is, a ‘re-hearing of the whole application’, at which the defendant may put evidence and submissions to the court.137 Applications to set aside ex parte orders concerning service are addressed in greater detail in Chapter 6.138

136 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [11] per Gillard AJA (Ormiston and Buchanan JJA agreeing). His Honour observed, however, that the Master hearing the application ‘may require the plaintiff to give notice to the defendant’: see [11] and [19]; in this respect, see Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(4). In Tasmania, it has been held that applications to renew the writ should ordinarily be made on notice to the defendant: Varga v Mandapati [2014] TASSC 25 at [18]–[19],[21]–[24] per Holt AsJ. As to the ex parte nature of the hearing, see also Onefone Australia Pty Ltd v One Tel Ltd [2007] NSWSC 1320 at [9]–[12] per Barrett J; Monteleone v the Owners of the Old Soap Factory [2007] WASCA 79 at [23] JA (Steytler P agreeing).

per McLure

Page 32 of 63 Chapter 5 Service 137 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [21] (Ormiston and Buchanan JJA agreeing).

per Gillard AJA

138 See Chapter 6, 6.40–6.50.

5.93 It has been observed that proceeding on an ex parte basis has three principal disadvantages: the court does not have the benefit of competing arguments at the first hearing; a plaintiff may lose its cause of action if an extension of time is granted, but then set aside at a later inter partes hearing which takes place after the expiry of the limitation period; and the possibility of inconsistent decisions at the two hearings creates ‘risks to the perceived institutional integrity of the court’.139 Accordingly, the New South Wales Court of Appeal has indicated that there is a good argument for amending the Uniform Civil Procedure Rules in that jurisdiction to enable the court to permit an unserved defendant to be heard.140 Such provision exists in some other jurisdictions.141

139 Rich v Long [2008] NSWSC 487 at [24] ACSR 80; [2012] NSWCA 79 at [40]–[41]

per Young CJ in Eq; Weston v Publishing and Broadcasting Ltd (2012) 88 per Sackville AJA (Campbell and Young JJA agreeing).

140 Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [41] (Campbell and Young JJA agreeing).

per Sackville AJA

141 Supreme Court Rules 2016 (NT) r 5.12(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(4); see Varga v Mandapati [2014] TASSC 25 at [18]–[19],[21]–[24]

per Holt AsJ as to the position in Tasmania.

5.94 An application to extend the time for service may be made within the period of validity of the originating process. A plaintiff may also apply to renew a stale originating process after the period for service has expired.142 In this respect, it has been observed that a stale originating process is not a nullity, although it may not be validly served.143

Page 204

142 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 339–41

per Stephen J; Brealey v Board

of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158 at [44]–[50]

per Ipp J (Malcolm CJ

agreeing); see, for example, Crompton v Buchanan [2010] QCA 250 ; Wakim v Coleman [2010] NSWCA 221 is an example of an application ‘to extend retrospectively the period of validity for service’ of an originating process which had been served out of time (see especially at [20]). 143 Victa v Johnson (1975) 10 SASR 496 at 503–4

per Bray CJ (Walters and Wells JJ agreeing); Van Leer Australia

Pty Ltd v Palace Shipping KK (1981)180 CLR 337 at 340–1

The discretion to extend time

per Stephen J.

Page 33 of 63 Chapter 5 Service

5.95 The power to order an extension of the time for service of the originating process is discretionary.144 In most jurisdictions, the rules provide no guidance as to the circumstances in which such an order should be made.145 However, the discretion is not untrammelled.146 An applicant seeking an extension of time for service must establish that there is good reason for the extension.147 The onus is on the plaintiff to demonstrate a good reason exists;148 where the application to extend time is made retrospectively (that is, after the originating process has become stale), a reason ‘of substance’ is required.149 A succinct list of factors which are commonly relevant to the exercise of the discretion was provided in the leading case of Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) (Buzzle) :150 … the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant,

Page 205 the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.

However, the identification of the relevant factors in a particular case, and the weight to be given to them, are a matter for the court’s discretion.151 Where there is delay which extends beyond the expiry of the limitation period, the court ought also to take into account the policy reasons for imposing limitation periods.152 The discretion must also be exercised in light of the overriding objective of the rules under which the application is made,153 and the statute which confers the discretionary power on the court.154 In particular, it has been recognised that there is a duty on parties and their representatives to proceed expeditiously.155

144 Victa Ltd v Johnson (1975) 10 SASR 496 at 503

per Bray CJ (Walters and Wells JJ agreeing), cited with approval

in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 344

per Stephen J; IMB Group Pty Ltd

(in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [27] JA (McMurdo P and Cullinane J agreeing).

per Keane

145 The exceptions are the Australian Capital Territory and Queensland. In Queensland, r 24(2) provides that a claim may be renewed where ‘the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim’; in the Australian Capital Territory, r 74(3) is to the same effect. As noted in Hunter v Hanson [2014] NSWCA 263 at [59] per McColl JA (Macfarlan JA agreeing), ‘Many of the principles concerning renewal of a stale writ were developed at a time when the rule permitting such an application were to [this] effect’. However, as will be seen, the requirement of a good reason to renew originating process is universal across Australian jurisdictions, and the failure to effect service despite the plaintiff’s reasonable efforts is regarded as a good reason. Further, the discretion to extend time under the modern rules must be exercised judicially and in accordance with established principle, as is explained in the remainder of this section. 146 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[28]–[29],[40] per Ipp JA (Tobias and McColl JJA agreeing); Hunter v Hanson [2014]NSWCA 263 at [57] (Macfarlan JA agreeing). 147 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135

per McColl JA

; Wakim v Coleman [2010] NSWCA 221 at [13], [38]

per Macfarlan JA (Giles and Hodgson JJA agreeing); Gilles v Palmieri [2016] NSWCA 219 at [35] per Leeming JA (Basten JA and Sackville AJA agreeing). This is expressly provided for in the rules in the Australian Capital Territory and Queensland: see note 145 above.

Page 34 of 63 Chapter 5 Service 148 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [40] (Ormiston and Buchanan JJA agreeing); Pell v Hodges [2007] NSWCA 234 at [30] Basten JJA agreeing).

per Gillard AJA

per Handley AJA (Tobias and

149 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [41(ii)] AJA (Ormiston and Buchanan JJA agreeing). 150 [2009] NSWCA 104 at [43]

per Gillard

per Ipp JA (Tobias and McColl JJA agreeing). His Honour drew upon the statements of

principle in Victa Ltd v Johnson (1975) 10 SASR 496 at 504

per Bray CJ (Walters and Wells JJ agreeing) and Van

Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 350

per Stephen J. See also Muirhead v

Uniting Church in Australia Property Trust(Q) [1999] QCA 513 at [4(3)] per Pincus JA (Davies JA agreeing), cited with approval in IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [32]; and see also at [61] per Keane JA (McMurdo P and Cullinane J agreeing) (although see Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [74] per Margaret Wilson J as to the status of the remainder of Pincus JA’s statements of principle). See also the summary of principles extracted in Howard v Power [2013] VSC 198 at [10]

per Derham AsJ.

151 Soper v Matsukawa [1982] VR 948 at 954 [10(c)]

per Lush J (Gray J agreeing); Howard v Power [2013] VSC 198 at

per Derham AsJ; Hunter v Hanson [2014] NSWCA 263 at [60]

152 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 153 at [3] agreeing); Pell v Hodges [2007] NSWCA 234 at [44]

per McColl JA (Macfarlan JA agreeing).

per Hodgson JA, at [33] per Tobias JA (Ipp JA

per Handley AJA (Tobias and Basten JJA agreeing); Arthur

Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [37],[68] per Ipp JA (Tobias and McColl JJA agreeing). Delay within the limitation period may also be relevant: in Tolcher v Gordon, such delay was taken into account in circumstances where the plaintiff had filed the originating process shortly before the expiry of the limitation period, and then sought an extension of time in order to investigate her causes of action further (at [42]–[44]). 153 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [27]

per Keane JA (McMurdo P and Cullinane J agreeing); Arthur Andersen Corporate Finance Pty Ltd v Buzzle

Operations Pty Ltd (in liq) [2009] NSWCA 104 at [32],[35]–[36]

per Ipp JA (Tobias and McColl JJA agreeing); High

Top Pty Ltd v Kay Sheila Lawrence t/as ‘Kay Lawrence Accountancy’ [2010] QCA 270 at [35] per White JA (McMurdo P and Chesterman JA agreeing); Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [186]– [187]

per Warren CJ, Tate and Beach JJA.

154 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[28] per Ipp JA (Tobias and McColl JJA agreeing); Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [20(3)]

per Sackville AJA (Campbell and Young JJA agreeing).

155 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [27] per Keane JA (McMurdo P and Cullinane J agreeing); Gilles v Palmieri [2016] NSWCA 219 at[37] per Leeming JA (Basten JA and Sackville AJA agreeing) (citations omitted). His Honour referred to ss 58(1), (2)(b)(ii) and (iii) of the Civil Procedure Act 2005. See also Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [41(i)]

per Gillard AJA (Ormiston and Buchanan JJA agreeing).

5.96 If the limitation period has expired at the time that the application to extend the time for service is made, the application will nevertheless be determined in accordance with the same general principles.156 However, the fact that the limitation period has expired may be a relevant fact to the exercise of the discretion.157 First, it has been said that ‘delay in service … in contravention of the rules, is particularly serious if it

Page 206

Page 35 of 63 Chapter 5 Service occurs after the expiration of the … limitation period’.158 Secondly, the expiry of the limitation period may be relevant to the assessment of the prejudice that the defendant may suffer if the application to extend time were successful, and to the plaintiff if it is unsuccessful. This prejudice is a factor that is relevant in the exercise of the court’s discretion to extend time, discussed further below.159

156 Victa v Johnson (1975) 10 SASR 496 at 503–4

per Bray CJ (Walters and Wells JJ agreeing); Van Leer Australia

Pty Ltd v Palace Shipping KK (1981)180 CLR 337 at 344

per Stephen J; Foxe v Brown (1984) 58 ALR 542

Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [97]–[100] (Macfarlan JA and Sackville AJA agreeing); Gilles v Palmieri [2016] NSWCA 219 at [21] and Sackville AJA agreeing). 157 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 341 Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [99] 158 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135 at [3]

;

per Tobias JA

per Leeming JA (Basten JA

per Stephen J; Agricultural and Rural

; see also at [94] and [62]. per Hodgson JA, cited with approval in

Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [98]

.

159 See 5.106–5.112 below.

Reasons for delay

5.97 The court will not look favourably on unexplained delay.160 Practical difficulties in effecting service are likely to be regarded as good reason for delay; for example, as where ‘the defendant is evading service, his whereabouts are unknown or some other difficulty is experienced in serving the defendant’.161 Difficulties in serving the originating process will, however, be given little weight where the plaintiff is aware of the difficulties at an early stage and takes no steps to address those difficulties (for example, by seeking an order for substituted service).162 Nor will the court be sympathetic towards difficulties in effecting service when the plaintiff has chosen to attempt service only shortly before the expiry of the originating process.163 It should also be noted that even where there are practical obstacles to effecting service, the defendants are not obliged to facilitate the plaintiff ’s attempts at service.164

160 See, for example, High Top Pty Ltd v Kay Sheila Lawrence t/as ‘Kay Lawrence Accountancy’ [2010] QCA 270 at [35] per White JA (McMurdo P and Chesterman JA agreeing); Gilles v Palmieri [2016] NSWCA 219 at [37] Leeming JA (Basten JA and Sackville AJA agreeing).

per

161 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [41(iii)] per Gillard AJA (Ormiston and Buchanan JJA agreeing); see also Battersby v Anglo-American Oil Company Ltd [1945] KB 23 at 32 per Lord Goddard (delivering the judgment of the Court of Appeal).Indeed, the rules in some jurisdictions expressly permit extensions in circumstances where ‘reasonable efforts have been made to serve the defendant or that there is another good reason’, and formerly rules in these terms were more widespread:see note 145 above. 162 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[70]–[71] per Ipp JA (Tobias and McColl JJA agreeing). In that case, the difficulty was presented by the need to serve all of the partners of the defendant firm of accountants. As to orders for substituted service, see 5.52–5.55 above. 163 See, for example, McIntosh v Maitland [2016] QSC 203 at [69]–[70] per Jackson J. The plaintiff there had attempted service only in the week before the originating process expired, in circumstances where there were only three business days to effect service because the Easter public holidays fell in that week. 164 Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [78] [37], [40], [44], [49].

per Margaret Wilson J, and see also at [35]–

Page 36 of 63 Chapter 5 Service

5.98 In the leading case of Battersby v Anglo-American Oil Company Ltd ,165 Lord Goddard (delivering the judgment of the Court of Appeal) stated that ‘ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development’.166 It remains the position in Australia that awaiting the outcome of other proceedings is usually not a good reason to delay

Page 207 service of the originating process. But in Agricultural and Rural Finance Pty Ltd v Kirk, Tobias JA (with whom Macfarlan JA and Sackville AJA agreed) explained that Battersby was ‘not an inflexible rule’, and that its application depended on the facts of the case, including whether ‘the outcome of [the other case] will have a direct bearing on whether the plaintiff has a claim against the unserved defendant’.167 In that case, it was considered ‘rational’ for the plaintiff to await the result of a test case, which would resolve common issues, before serving the applicants in the case at bar.168

165 [1945] KB 23

.

166 [1945] KB 23 at 32 (emphasis added). 167 Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [222(f)] per Tobias JA (Macfarlan JA and Sackville AJA agreeing), see also at [102]; cf IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qld Rep 148 at [56] agreeing).

per Keane JA (McMurdo P and Cullinane J

168 Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [1]–[2],[126],[222](l) and (m) per Tobias JA (Macfarlan JA and Sackville AJA agreeing). See also at [45], [49], [65]–[67] as to the evidence and findings concerning the attempts at service. The defendants’ knowledge of the proceedings, and the circumstances of the test case, were also relevant: see [1]–[12] as to the procedural background; [30] as to the orders providing for the test case; [45]–[55] as to the evidence concerning the attempts at service and the defendants’ knowledge of the proceedings.

5.99 On the other hand, it is insufficient that the desire to await other proceedings is merely ‘explicable in terms of commercial pragmatism’.169 Stephen J in the High Court was not prepared to renew a writ where the need to proceed against the second defendant only became apparent after the first defendant delivered its defence,170 and the plaintiff had, in the meantime, made ‘a calculated decision to incur no costs in prosecuting the case against [the second defendant]’.171 Nor is it permissible to await other proceedings merely because their result is anticipated to affect whether the defendants would be able to satisfy any judgment in favour of the plaintiff,172 or is anticipated to affect the quantum of the plaintiff’s loss.173 However, in Hunter v Hanson, it was acceptable for the plaintiff to await the outcome of an unrelated case, which was anticipated to resolve a determinative legal question in the case at bar, in ‘very unusual’ circumstances where the plaintiff wished to avoid ‘antagonising’ the defendant unnecessarily owing to ‘well-founded’ fears about the defendant’s response.174 Where a plaintiff wishes to await the outcome of related litigation, it has been observed that a more appropriate course may be to serve the originating process and apply to the court for case management directions to avoid dealing with two proceedings at once.175

Page 208

Page 37 of 63 Chapter 5 Service 169 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [174],[180] JJA. 170 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 347 171 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 350 Maitland [2016] QSC 203 at [72]–[73]

per Warren CJ, Tate and Beach

per Stephen J. per Stephen J. See also McIntosh v

per Jackson J.

172 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [103(b)] and see also [21] per Ipp JA (Tobias and McColl JJA agreeing). 173 McIntosh v Maitland [2016] QSC 203 at [75] 174 [2014] NSWCA 263 at [71],[73]–[74]

per Jackson J.

per McColl JA (Macfarlan JA agreeing).

175 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [57]

per Keane JA (McMurdo P and Cullinane J agreeing); Babcock and Brown Pty Ltd v Arthur Andersen [2010]

QSC 287 at [76]

per Margaret Wilson J; McIntosh v Maitland [2016] QSC 203 at [75]

Power [2013] VSC 198 at [21],[31]

per Jackson J; Howard v

per Derham AsJ.

5.100 Different considerations may apply where the plaintiff wishes to await the conclusion of a criminal trial. In E v S E ,176 the plaintiff had been committed for trial. His statement of claim alleged that the defendants (who might be called as witnesses in the criminal trial) had engaged in various acts of misconduct relating to the investigations which had led to the criminal charges.177 Debelle J considered that if the statement of claim were served, the prosecutor would likely allege that the plaintiff had been motivated by a desire ‘to intimidate the defendants as witnesses in the criminal proceedings’, or to ‘attempt to get them to alter their evidence in those proceedings’.178 Being satisfied that the plaintiff was not so motivated, Debelle J considered that requiring the plaintiff to serve in time would likely lead to the plaintiff suffering ‘unfair prejudice’ in his criminal trial; his Honour therefore granted an extension.179

176 [2007] SASC 198. 177 E v S E [2007] SASC 19 at [3],[11] 178 E v S E [2007] SASC 198 at [11]

. .

179 E v S E [2007] SASC 198 at [11],[15]–[16]

.

5.101 It has been accepted that it is legitimate to delay service in circumstances where the originating process has been filed shortly before the expiry of the limitation period, ‘but further investigation of the circumstances of the claim is necessary to be able properly to plead so that the action would not be vulnerable to a strike out application’.180 But it is not legitimate for a plaintiff to file proceedings shortly before the expiry of the limitation period and only then to conduct investigations.181 The distinction between the two categories of case seems to turn on whether there was a legitimate reason for the failure to carry out the investigations before the originating process was filed, or whether it was simply the result of the plaintiff’s delay.182 Other circumstances which have been said not to provide sufficient reason to delay service include the fact that there has been ‘difficulty tracing witnesses or obtaining evidence’ or that ‘negotiations are continuing between the parties’.183

Page 38 of 63 Chapter 5 Service

180 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [55]

per Keane JA (McMurdo P and Cullinane J agreeing), citing Major v Australian Sports Commission [2001] QSC

320 at [71]

per Mullins J.

181 Pell v Hodges [2007] NSWCA 234 at [44]

per Handley AJA (Tobias and Basten JJA agreeing).

182 Pell v Hodges [2007] NSWCA 234 at [46]

per Handley AJA (Tobias and Basten JJA agreeing); cf Major v Australian

Sports Commission [2001] QSC 320 at [76]

per Mullins J.

183 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [41(iv)] AJA (Ormiston and Buchanan JJA agreeing).

per Gillard

5.102 It is relevant that the plaintiff has sufficient knowledge of its cause of action to plead it, although varying degrees of emphasis have been placed on this feature by different courts. In IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission, Keane JA observed that no case had been cited in which a court had ‘authorise[d] a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff’.184 The New South Wales Court of Appeal has endorsed

Page 209 this statement of principle,185 but stated that it ‘cannot be treated as an immutable proposition’.186 It has been suggested that the Queensland Court of Appeal has adopted a less permissive approach than that adopted in New South Wales.187

184 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [54]

per Keane JA (McMurdo P and Cullinane J agreeing).

185 Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [21] (Campbell and Young JJA agreeing). 186 Hunter v Hanson [2014] NSWCA 263 at [63]

per McColl JA (Macfarlan JA agreeing). IMB was also distinguished in

Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [103]–[105] (Macfarlan JA and Sackville AJA agreeing). 187 McIntosh v Maitland [2016] QSC 203 at [41]

per Sackville AJA

per Tobias JA

per Jackson J.

5.103 In England, courts have been reluctant to permit extensions of time for parties to seek external funding of the litigation.188 Australian courts are more willing to accommodate the desire of a plaintiff to obtain litigation funding, particularly where the plaintiff is a liquidator of an insolvent company.189 However, what is critical is that the plaintiff does not, in effect, arrogate to a litigation funder the power to determine whether and when service will occur.190 For example, in Horne v Retirement Guide Management Pty Ltd, the plaintiff liquidators sought to delay service in order to get in funds in the liquidation, which would in turn enable them to undertake investigations,with a view to establishing that they had a sufficiently valuable claim in order to attract a litigation funder.191 This was not a good reason to delay service, and had the effect of ‘plac[ing] the timing of service in the hands of third parties, such as willing purchasers of assets and litigation funders’, thus impermissibly arrogating to a third party the decision whether and when to proceed.192 It has been said that it is not a good reason to delay service while the plaintiff

Page 39 of 63 Chapter 5 Service awaits a grant of legal aid, although delay by the authorities in making such a grant may be looked upon more favourably.193 However, it has also been observed that merely serving the originating process entails little cost; accordingly, an impecunious party ought to consider serving and seeking case management directions from the court.194

Page 210

188 As to the English position, see Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [5.104]. 189 Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [187] per Sackville AJA (Campbell and Young JJA agreeing); T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [18]

per Sanderson M; Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [172],[176],[180]

per Warren CJ, Tate and Beach JJA. 190 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[44]–[52],[77]– [80],[82]

per Ipp JA (Tobias and McColl JJA agreeing); Horne v Retirement Guide Management Pty Ltd [2017]

VSCA 47 at [176]

per Warren CJ, Tate and Beach JJA.

191 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [24],[26],[175] JJA.

per Warren CJ, Tate and Beach

192 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [176],[180],[184] Beach JJA.

per Warren CJ, Tate and

193 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [41(iv)] AJA (Ormiston and Buchanan JJA agreeing).

per Gillard

194 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [57]

per Keane JA (McMurdo P and Cullinane J agreeing); although cf T-D Joint Venture Pty Ltd (in liq) v SGH

Energy Corporate Pty Ltd [2016] WASC 102 at [18]

per Sanderson M.

Conduct of parties generally

5.104 It has often been said that the court will not permit a party to arrogate to itself, or to a third party, the decision whether to extend the time for service.195 A plaintiff who allows the time for service to expire before approaching the court for directions may be found to have arrogated to itself the decision whether to extend time.196

195 Battersby v Anglo-American Oil Company Ltd [1945] KB 23

at 32

196 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [167]

. per Warren CJ, Tate and Beach JJA.

5.105 The plaintiff’s alacrity in progressing the proceedings is clearly a matter which the court will take into account. For example, in Buzzle, it was relevant that the plaintiff liquidator had given no instructions to his lawyers for 10 months after the originating process was filed.197 Conversely, in Crompton v Buchanan ,198 the Queensland Court of Appeal found that the plaintiff had exercised ‘reasonable persistence’ in seeking to have his solicitors advance the

Page 40 of 63 Chapter 5 Service proceedings, and attributed the delay in progressing the proceedings to the ‘inaction’of the plaintiff ’s solicitors.199 In circumstances where no specific prejudice had been established, and a fair trial was still possible,200 the court renewed the claim to a date more than 10 years after the expiry of the limitation period.201 Similarly, in Tolcher v Gordon, the New South Wales Court of Appeal considered it relevant that the delay was largely the fault of the solicitor rather than the plaintiff.202

197 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[56] JA (Tobias and McColl JJA agreeing); see also at [21] and [62]. 198 [2010] QCA 250

per Ipp

per White JA (Muir JA and Mullins J agreeing).

199 Crompton v Buchanan [2010] QCA 250 at [7],[42],[60]–[61] 200 Crompton v Buchanan [2010] QCA 250 at [64] 201 Crompton v Buchanan [2010] QCA 250 at [66] the procedural history.

per White JA (Muir JA and Mullins J agreeing).

per White JA (Muir JA and Mullins J agreeing). per White JA (Muir JA and Mullins J agreeing),and see at [5] as to

202 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 153 at [109]–[112],[125(g)] agreeing).

per Tobias JA (Ipp JA

Hardship or prejudice

5.106 Prejudice may take a variety of forms. On the plaintiff side, the obvious source of prejudice if the originating process is not renewed and the limitation period has expired is the loss of the cause of action. However, it has been said that the fact that a plaintiff will lose a cause of action cannot be determinative;203 otherwise, all applications to extend time to serve the originating process which were made after the expiry of the limitation period would be resolved in favour of the plaintiff.204 The fact that the plaintiff has an ‘apparently worthwhile claim’ has been said to be a matter

Page 211 tending towards an extension.205 However, in considering the prejudice that the plaintiff will suffer through a loss of a cause of action, the court will not usually consider the strength of the plaintiff’s claim: ‘an application for renewal or an application to set aside a renewal is not an occasion for a determination of the merits of a claim’.206 It is for the plaintiff to demonstrate that its claim is statute-barred; if the date of accrual cannot be determined from the originating process (for example, because it is defective), the court will not make an assumption in the plaintiff’s favour.207

203 Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [11]–[13] per Williams J (Davies and Pincus JJA agreeing); The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [47] [2010] QCA 250 at [59]

per Keane JA (McMurdo P and Cullinane J agreeing); Crompton v Buchanan

per White JA (Muir JA and Mullins J agreeing); McIntosh v Maitland [2016] QSC 203 at [94]

per Jackson J. 204 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 351

per Stephen J.

205 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [48]

per Keane JA (McMurdo P and Cullinane J agreeing); High Top Pty Ltd v Kay Sheila Lawrence t/as ‘Kay

Page 41 of 63 Chapter 5 Service Lawrence Accountancy’ [2010] QCA 270 at [11]

per White JA (McMurdo P and Chesterman JA agreeing); Babcock

and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [79]

per Margaret Wilson J.

206 IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [38]

per Keane JA (McMurdo P and Cullinane J agreeing).

207 Chalmers and Partners v Kensit [2008] WASCA 122 at [33(b)]

per Buss JA (Murray AJA agreeing), referred to in T-

D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [11]

per Sanderson M.

5.107 It has been said that where an application to extend the validity of the originating process has been made within the limitation period, the plaintiff will suffer no prejudice if the application is refused, because it can simply commence fresh proceedings.208 On the other hand, if the plaintiff can simply start afresh, refusing to extend the period for service may be futile, and indeed may lead to duplication of time and expense through the commencement of new proceedings.209 However, there is a countervailing argument: in such circumstances, it would be open to the court to find that there has been an abuse of the court’s process through relitigation.210

208 T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [9],[14]

per Sanderson M.

209 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 288 per Gaudron J, referred to in the context of an application to extend the validity of a writ in T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [20]

per Sanderson M.

210 See Chapter 26, 26.126–26.131.

5.108 On the defendant side, courts have recognised two forms of prejudice. First, there is actual prejudice. Examples of actual prejudice include the loss of evidence, or the loss of a secondary claim which was available to the defendant but has become time-barred. Actual prejudice must be established by evidence.211 Where a defendant relies on the loss of a secondary claim,212 such as a claim for contribution against a joint tortfeasor, as a source of prejudice (through the expiry of the limitation period for the secondary claim), the defendant must establish that the secondary claim in question was ‘viable and realistic’.213

Page 212

211 Depending on the weight to be given to the other factors in the exercise of the court’s discretion, it may be unnecessary to lead evidence of actual prejudice, and sufficient to rely on presumptive prejudice: see, for example, Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 351

per Stephen J.

212 See Chapter 4, 4.122–4.131 as to the various types of cross-claim that may be brought. 213 Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 at [41] Creevey v Barrois [2005] NSWCA 264 at [56],[64]

per Foster AJA (Meagher and Handley JJA agreeing);

per Basten JA (Handley and McColl JJA agreeing).

Page 42 of 63 Chapter 5 Service

5.109 Where the limitation period for the plaintiff ’s cause of action has expired, or where there is uncertainty about the expiry of the limitation period, the court will take into account in its assessment of prejudice the defendant’s loss of a limitation defence.214 It has been said that ‘[t]he court is reluctant to renew a claim after the expiration of a limitation period if doing so would deprive a defendant of a defence’,215 although it is not a determinative matter.216

214 Ramsay v Madgwicks [1989] VR 1 at 7

per Young CJ (Kaye and Southwell JJ agreeing); Babcock and Brown Pty

Ltd v Arthur Andersen [2010] QSC 287 at [88]

per Margaret Wilson J.

215 Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [88]

per Margaret Wilson J.

216 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 153 at [50]–[78] Heaven v Road & Rail Wagons Ltd [1965] 2 QB 355

at 361

per Tobias JA (Ipp JA agreeing); cf

per Megaw J.

5.110 Secondly, courts have recognised what has variously been described as ‘general’, ‘presumed’ or ‘presumptive’ prejudice. This form of prejudice was described by McHugh J in Brisbane South in the following terms:217 The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

Thus, the mere passage of time will give rise to presumptive prejudice.218 Nevertheless, evidence may establish (and the court may find) that in the particular circumstances of the case, presumptive prejudice has been mitigated.219 For example, providing notice of proceedings to the defendant may serve to ‘mitigate the prejudice which a defendant may otherwise suffer through delay’.220

Page 213

217 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 218 Ramsay v Madgwicks [1989] VR 1 at 7

per McHugh J.

per Young CJ (Kaye and Southwell JJ agreeing); Horne v Retirement

Guide Management Pty Ltd [2017] VSCA 47 at [159],[161]

per Warren CJ, Tate and Beach JJA.

219 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [161]

per Warren CJ, Tate and Beach JJA.

Page 43 of 63 Chapter 5 Service 220 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 350 and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [20(7)]

per Stephen J; Weston v Publishing per Sackville AJA (Campbell and Young

JJA agreeing); Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [161] Beach JJA.

per Warren CJ, Tate and

5.111 It is suggested that merely providing notice of the fact of the proceedings may be insufficient to mitigate prejudice; rather, the plaintiff may need to provide comprehensive and specific information about the nature of the claim. This is because the defendant can only mitigate its prejudice if it has sufficient information about the claim to be able to take such steps as are necessary to collect or preserve evidence. The level of detail that is required for this purpose might depend on the nature of the claim. For example, in Babcock & Brown, limited weight was given to general or presumed prejudice221 where the causes of action concerned ‘a specific and unique transaction’, and were based ‘largely on documents’, which were likely to have been preserved in the circumstances.222 On the other hand, in McIntosh v Maitland (a case which also concerned negligent advice in respect of a specific transaction),223 the court was not prepared to discount the possibility of prejudice, even though it was likely that the case would be largely documentary, because it was also possible that relevant matters which were considered by the advisers were not reflected in the documentary evidence.224

221 Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [86] per Margaret Wilson J. The defendants did not rely on any specific prejudice: at [85]. See also Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [188]–[192]

.

222 These circumstances included that the defendants had been aware of the possibility of a claim against them well before the statement of claim was even filed, were aware that the statement of claim had been filed, and that two of the defendants had received a copy of the claim and statement of claim (albeit that the statement of claim would require significant amendments if the proceedings were to continue): Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [15],[57]–[60],[65]–[66],[77],[83]

per Margaret Wilson J.

223 McIntosh v Maitland [2016] QSC 203 at [42]–[60]

per Jackson J.

224 McIntosh v Maitland [2016] QSC 203 at [87]–[88],[92] case was ‘egregious’: see at [91].

per Jackson J. It was relevant that the period of delay in the

5.112 In Horne v Retirement Guide Management Pty Ltd, the Victorian Court of Appeal considered that a letter of demand was of little assistance to the defendant in providing notice. The court observed that letters of demand do not necessarily foreshadow that proceedings will be commenced, and do not always accurately foreshadow the nature of the claim; accordingly, the court ought to guard against finding in the plaintiff’s favour, with the benefit of hindsight,that the claim was foreshadowed by the letter of demand.225

225 Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 at [169]

Service out of the jurisdiction

per Warren CJ, Tate and Beach JJA.

Page 44 of 63 Chapter 5 Service

5.113 The subject of service out of the jurisdiction is not limited to the practical aspects concerning service of documents outside the geographical borders of the state in which proceedings were commenced, or outside of Australia. It also involves issues of jurisdiction.226

Page 214

226 Although see Agar v Hyde (2000) 201 CLR 552 at [42]–[43]

per Gaudron, McHugh, Gummow and Hayne JJ.

5.114 A plaintiff who brings legal proceedings is thereby invoking the court’s jurisdiction for the purpose of enforcing its rights. Of itself, however, service of the originating process on a defendant does not confer jurisdiction on the court.Jurisdictional competence is governed by the general law, which is influenced by international conventions insofar as proceedings involving a foreign element are concerned. The procedure for service out of the jurisdiction is set out in the rules of court in every Australian jurisdiction. However, court rules are not a source of jurisdiction; they merely lay down procedural rules that reflect the general jurisdictional rules to be found in primary legislation and common law principles.227

227 The issue of jurisdiction in Australia’s federal system is discussed in Chapter 2.

5.115 At common law, it is accepted that:228 ... the court’s jurisdiction in actions in personam depends … on the defendant’s presence in the geographical jurisdiction of the court … or the defendant’s submission to the court’s jurisdiction.

228 Re Deposit and Investment Company Ltd (rec apptd) (1991) 30 FCR 463 at 464 Carroll (1958) 98 CLR 310 at 322–4

per Lockhart J; see also Laurie v

(per curiam).

5.116 The position may be altered by statute, however.229 Service within Australia, but outside of the jurisdiction of the particular state or territory, is permitted under the terms of the Service and Execution of Process Act 1992 (Cth),

Page 45 of 63 Chapter 5 Service and there are rules of court (made pursuant to statutory authority) in all jurisdictions providing for service in foreign jurisdictions; each of these are discussed in the following sections.230 In order to serve a person outside the jurisdiction (whether in another Australian jurisdiction or in a foreign jurisdiction), it is necessary to fall within the ambit of one of the statutory extensions of jurisdiction.231 This restriction cannot be avoided by seeking an order for substituted service.232 In some jurisdictions, there are specific rules dealing with the situation in which the process of a foreign jurisdiction is to be served in Australia; these rules are outside the scope of this text.

229 Gosper v Sawyer (1985) 160 CLR 548 at 557–8

per Gibbs CJ, Wilson and Dawson JJ.

230 As was noted by the High Court in Laurie v Carroll (1958) 98 CLR 310 at 322 231 For example, in Gosper v Sawyer (1985) 160 CLR 548 at 557–8 Deposit and Investment Company Ltd (rec apptd) (1991) 30 FCR 463 no jurisdiction to permit service outside the jurisdiction. 232 Laurie v Carroll (1958) 98 CLR 310 at 332,333–4

(per curiam).

per Gibbs CJ, Wilson and Dawson JJ and Re per Lockhart J, it was found that there was

(per curiam); Re Austral Oil Estates Ltd (in liq) (1986) 7 NSWLR

440 at 441 per McLelland J. However, in some jurisdictions, the rules make provision for substituted service outside the jurisdiction: Federal Court Rules 2011 (Cth) r 10.49; Uniform Civil Procedure Rules 2005 (NSW) r 11.15; Supreme Court Rules (NT) r 7.06; Supreme Court Civil Rules 2006 (SA) r 41AE; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 6.10(3).

5.117 A defendant who is usually outside the jurisdiction, but is temporarily present within the jurisdiction, may be served in accordance with the usual rules for service within the jurisdiction. However, if the defendant has been ‘induced by fraud to come within the jurisdiction for the concealed purpose of serving him with a writ’, that service will be set aside as an abuse of the court’s process.233

Page 215

233 Baldry v Jackson (1976) 1 NSWLR 19 at 22 per Yeldham J.

Service within Australia, but outside the jurisdiction in which proceedings were commenced

5.118 At common law, service outside the state or territory in which proceedings were issued was treated as service in a foreign jurisdiction. Today, service within Australia, but outside the jurisdiction in which proceedings were commenced, is governed by the Service and Execution of Process Act 1992 (Cth). It should be noted that proceedings in the Federal Court which are issued in the registry of one state may be served anywhere in Australia, without recourse to the Act, because the federal jurisdiction is singular across Australia.

5.119

Page 46 of 63 Chapter 5 Service In short, where the originating or any other process is issued in a particular state or territory, the usual rule is that service may be effected anywhere in Australia in the manner prescribed by the issuing jurisdiction.234 Service of any process which takes place in accordance with the Act is effective as if service had taken place in the jurisdiction of issue.235

234 Service and Execution of Process Act 1992 (Cth) ss 15 (originating process), 27 (other process). Although ss 15 and 27 refer to process issued in a ‘State’, the Australian Capital Territory and the Northern Territory are treated as states for the purpose of the Act: see s 7. 235 Service and Execution of Process Act 1992 (Cth) s 12.

5.120 Specific provision is made for three groups of defendants. First, there is specific provision for service on companies and registered bodies. However, because this is governed by the Corporations Act in all jurisdictions, the effect is that service on interstate companies is the same as service within the jurisdiction.236

236 Service and Execution of Process Act 1992 (Cth) s 9; see also 5.64–5.66 above regarding service on companies.

5.121 Secondly, the Act provides for how service is to be effected on other bodies corporate. In short, the method of service is contingent on the rules for service in the state in which service is to be effected (and not the issuing state). If the law in the serving state enables service to be effected at a particular place, service may be effected by either leaving the document at that place, or sending the document by post to that place. On the other hand, if the law in the serving state does not contain such a provision, service may be effected by leaving the document at a head office, registered office or principal place of business of the body corporate (or sending the document by post to the same).237

237 Service and Execution of Process Act 1992 (Cth) s 10.

5.122 Finally, service of process on a ‘body politic’, such as the state itself, must be effected in the manner prescribed by the Supreme Court rules in the state in which service is to take place.238 Thus, the usual rule that service takes place in the manner prescribed by the issuing state is reversed in the case of service on a body politic.

Page 216

238 Service and Execution of Process Act 1992 (Cth) s 15(5).

Page 47 of 63 Chapter 5 Service

5.123 The Act makes provision for the time for appearance where service is effected outside of the jurisdiction of issue.239 There is also special provision for the enforcement of judgments outside of the jurisdiction. Subpoenas may be served in any jurisdiction in the manner which would be effective in the issuing jurisdiction.240

239 Service and Execution of Process Act 1992 (Cth) s 17; s 30 (subpoenas). 240 Service and Execution of Process Act 1992 (Cth) s 29.

Service outside Australia Introduction

5.124 In the case of service outside Australia, jurisdiction is governed by principles of private international law which are influenced by international conventions on jurisdiction. These topics are beyond the scope of this book. However, because these matters arise in civil litigation with increasing frequency, it is desirable to provide a general outline of the matters that can arise in litigation between parties located in different jurisdictions. It must, however, be stressed that the exposition is intended to give no more than a broad picture and that for a detailed discussion specialist books on the subject must be consulted.241

241 M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014; R Mortensen, R Garnett and M Keyes, Private International Law in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2015; see also A V Dicey, J H C Morris and L Collins, Dicey and Morris on the Conflict of Laws, 15th ed, Sweet & Maxwell, London, 2012; P Rogerson, Collier’s Conflict of Laws, 4th ed, Cambridge University Press, Cambridge, 2013; A Briggs, The Conflict of Laws, 3rd ed, Oxford University Press, Oxford, 2013.

5.125 There are two types of rules in every Australian jurisdiction concerning service outside Australia. First, there are general rules for service overseas. These vary between jurisdictions. For example, in some jurisdictions, but not all, the leave of the court is required before service may be effected outside Australia. In some jurisdictions, there are special provisions for service in ‘convention countries’ — that is, countries with which Australia has a treaty concerning service (other than the Hague Convention).

5.126 Special mention should be made of the Trans-Tasman Proceedings Act 2010 (Cth). That Act contains provisions intended to ‘streamline the process for resolving civil proceedings with a trans-Tasman element’.242 Relevantly for present purposes, it identifies how service of Australian originating processes may be effected in New Zealand.243 In most jurisdictions, there are special rules concerning trans-Tasman proceedings, which complement the

Page 48 of 63 Chapter 5 Service provisions of the Act.244 The rules of court in some jurisdictions provide that the general rules concerning service outside Australia do not apply to proceedings which fall within the ambit of the Trans-Tasman Proceedings

Page 217 Act.245 But in the Federal Court, a party to a trans-Tasman proceeding must comply with both the specific rules concerning such proceedings, as well as any other rules ‘that are relevant to, and consistent with, this Division’.246

242 Trans-Tasman Proceedings Act 2010 (Cth) s 3(a). 243 Trans-Tasman Proceedings Act 2010 (Cth) Pt 2. 244 Federal Court Rules 2011 (Cth) Div 34.4; Court Procedures Rules 2006 (ACT) Div 6.10A.1; Uniform Civil Procedure Rules 2005 (NSW) Pt 32; Uniform Civil Procedure Rules 1999 (Qld) Ch 14 Pt 6; Supreme Court Civil Rules 2006 (SA) Ch 3 Pt 4 Div 1A and rr 183A and 347; Supreme Court Rules 2000 (Tas) Pt 32 Div 7; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 7A; Rules of the Supreme Court 1971(WA) O 39A. 245 Uniform Civil Procedure Rules 2005 (NSW) r 11.3; Supreme Court Civil Rules 2006 (SA) r 40; Supreme Court Rules 2000 (Tas) r 147(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.01; Rules of the Supreme Court 1971 (WA) O 10 r 1A(2) and (3A). Cf Court Procedures Rules 2006 (ACT) Div 6.8.9 (note 3); Uniform Civil Procedure Rules 1999 (Qld) Pt 7 Div 1 (Note). 246 Federal Court Rules 2011 (Cth) r 34.62 and see also r 10.41 (note 2).

5.127 Secondly, the rules in each jurisdiction contain provisions for service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention). These rules are uniform across Australia.

5.128 The relationship between general rules of service and the rules effecting the Hague Convention is contentious and unsettled in Australia.247

247 M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [3.27]–[3.29].

5.129 On one view, the rules concerning service under the Hague Convention are essentially rules about the logistics of effecting service in other countries which are signatories to the Hague Convention. They are not necessarily exhaustive of what a party must do in order to effect service. For example, in some jurisdictions, a plaintiff must seek the leave of the court before serving out of the jurisdiction. On this view, a plaintiff wishing to serve an originating process in a Hague Convention country will need to satisfy both the general requirement of seeking leave of the court, as well as the Hague Convention requirements about how this must be carried out. This view is arguably implicit in the Victorian rules.248

Page 49 of 63 Chapter 5 Service 248 Davies et al suggest that it is implicit in the structure of the Victorian rules: M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [3.27].

5.130 Another view is that the Hague Convention is exhaustive. In cases where service is to be effected pursuant to the Hague Convention, compliance with the rules concerning service under the Hague Convention is sufficient, and there is no need for compliance with the additional general rules of the jurisdiction. This view is expressly adopted in the rules in New South Wales and Western Australia, which provide that leave of the court is not required for service outside Australia when the Hague Convention applies.249

249 Uniform Civil Procedure Rules 2005 (NSW) r 11.2; Rules of the Supreme Court 1971 (WA) O 1 r 1A(3). See the discussion of M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, LexisNexis Butterworths, Sydney, 2014, [3.27] about the Western Australian rule; in particular, the legislative history at footnote 64.

5.131 This question remains unresolved. There are rules in each jurisdiction which state that the Hague Convention prevails over the general rules to the extent of any inconsistency. However, it is debatable whether the absence of any requirement for leave from the court (for example) in the Hague Convention rules is truly inconsistent with a rule of general application that leave is required. Further, in Western Australia, the requirement of leave was expressly excluded from Hague Convention service only

Page 218 after a Supreme Court decision which had considered the question of permission for an originating process to be served under the Hague Convention.250 One might argue, therefore, that in the absence of an express provision to the effect that the Hague Convention is exhaustive (such as now exists in Western Australia in relation to the question of leave), the Hague Convention provisions ought to be treated as supplementary to the general rules.

250 See the discussion of M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [3.27] about this rule; in particular, the legislative history at footnote 64. The judgment is Yzerman v Schofield [2011] WASC 200

.

5.132 It is suggested that the better view is that the Hague Convention rules are supplementary to the general provisions (save in Western Australia, where the rules expressly provide the contrary). This is consistent with the general scheme of the Hague Convention rules: as noted above, they concern the logistics of service outside of the jurisdiction, not the circumstances in which those logistics are to be engaged. Further, there is good reason to say that the general rules concerning when service may be effected out of the jurisdiction ought to continue to be applicable. As will be seen in the following section, the rules in all jurisdictions limit service outside Australia to proceedings in which the cause of action has some connection with the jurisdiction of issue (irrespective of whether the leave of the court is also required). Although it does not necessarily follow that the Australian court will have jurisdiction over the dispute, these rules serve to prevent the possibility that proceedings with little or no connection to the Australian jurisdiction will be served outside the jurisdiction, which would be wasteful of administrative

Page 50 of 63 Chapter 5 Service resources in effecting service, and of judicial resources in ultimately setting aside service.Finally, it is consistent with the travaux préparatoires for the Hague Convention, and US Supreme Court authority on point.251

251 This is discussed by M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [3.28].

5.133 It must be remembered that, as with service interstate, the fact that a party located overseas has been served with an Australian originating process does not mean that the Australian court has jurisdiction. An overseas party who has been served in accordance with the rules may nevertheless dispute the jurisdiction on the grounds of forum non conveniens. This remains the case even if the Australian party has obtained the leave of the court to serve out of the jurisdiction.

General provisions for service outside Australia Service outside Australia without the need for court permission

5.134 In the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, an originating process for most civil proceedings with a connection to the jurisdiction of issue may be served outside Australia without the leave of the court.252 Most of these jurisdictions also have some provision for

Page 219 the service of other originating processes with leave of the court.253 These rules concerning service without leave all follow the same form: they provide a list of types of proceedings for which service is permitted without leave. These include the following types of proceedings (amongst others):254 •

proceedings based on property located in the jurisdiction;

•

proceedings based on a tort committed in the jurisdiction;

•

proceedings based on contracts made in the jurisdiction, or made by a party carrying on business or living in the jurisdiction, or governed by the law of the jurisdiction, or containing a condition by which the parties submit to the jurisdiction of the court;

•

proceedings concerning the interpretation, effect or enforcement of a law of the jurisdiction.

252 Court Procedures Rules 2006 (ACT) r 6502; Uniform Civil Procedure Rules 2005 (NSW) r 11.4 and Sch 6; Uniform Civil Procedure Rules 1999 (Qld) r 124; Supreme Court Civil Rules 2006 (SA) r 40A; Supreme Court Rules 2000 (Tas) r 147A; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.02. 253 Court Procedures Rules 2006 (ACT) r 6503; Uniform Civil Procedure Rules 2005 (NSW) r 11.5; Uniform Civil Procedure Rules 1999(Qld) r 127(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.03. 254 The question whether the cause of action has arisen in the Australian jurisdiction or some other jurisdiction may be contentious. There are substantial bodies of case law concerning the questions where a tort or breach of contract has taken place, or where property is located (for example). Those issues are beyond the scope of this text.

Page 51 of 63 Chapter 5 Service

5.135 The categories of proceedings are defined more broadly in New South Wales and Victoria. In those two jurisdictions, proceedings commenced in the jurisdiction may be served outside Australia provided that there is a connection to Australia.So, for example, proceedings based on property located in Australia may be served outside Australia without leave; the rules do not require a connection to New South Wales or Victoria. But, of course, proceedings commenced in New South Wales or Victoria may be transferred to another Australian jurisdiction pursuant to the law concerning cross-vesting.255

255 As to which, see Chapter 2, 2.42–2.52.

5.136 Although leave is not required to commence proceedings, in the Australian Capital Territory, New South Wales, Tasmania and Victoria, leave is required to proceed against a defendant who has not filed an appearance.256 Leave to proceed may only be granted where it is proved that service was in fact effected.257 It is also necessary to show that the claim falls within one of the categories for which service without leave was permissible, whether the plaintiff’s case is sufficiently strong to withstand summary judgment, and whether the Australian court would be a clearly inappropriate forum.258

Page 220

256 Court Procedures Rules 2006 (ACT) r 6507; Uniform Civil Procedure Rules 2005 (NSW) r 11.8AA; Supreme Court Rules 2000 (Tas)r 147B; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.07. 257 Castagna v Conceria Pell Mec SpA (NSWCA, 15 March 1996, unreported), Handley JA (Mahoney P and Waddell AJA agreeing on this point); Jamieson v Commissioner for Internal Revenue (2007) 210 FLR 210; [2007] NSWSC 324 at [4] per Gzell J; Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 at [30] 258 See generally Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822 at [29]–[34]

per Austin J. .

Service outside Australia requiring court permission

5.137 In the Federal Court, the Northern Territory and Western Australia, court permission is required for the service of any originating process outside Australia.259 In all of these jurisdictions, the court must be satisfied that the proceedings fall within one of the permitted categories.260 In other words, the court does not have a completely untrammelled discretion to permit service outside Australia in any case. Again, the list of categories of case is extensive in each jurisdiction, but includes the following types of proceedings(amongst others): •

proceedings based on property located in the jurisdiction;

•

proceedings based on a tort committed in the jurisdiction;

•

proceedings based on contracts made in the jurisdiction, or made by a party carrying on business or living in the jurisdiction, or governed by the law of the jurisdiction, or containing a condition by which the parties submit to the jurisdiction of the court;

Page 52 of 63 Chapter 5 Service •

proceedings concerning the interpretation, effect or enforcement of a law of the jurisdiction.

259 Federal Court Rules 2011 (Cth) r 10.43; Supreme Court Rules (NT) r 7.02; Rules of the Supreme Court 1971 (WA) O 10 r 1A(2). 260 Federal Court Rules 2011 (Cth) r 10.42; Supreme Court Rules (NT) r 7.01; Rules of the Supreme Court 1971 (WA) O 10 r 1.

5.138 It was noted in the previous section that in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria, service of the originating process without the leave of the court is permitted in particular categories of proceedings. In most of those jurisdictions, there is also some provision for service of other types of proceedings with the leave of the court.261

261 Court Procedures Rules 2006 (ACT) r 6503; Uniform Civil Procedure Rules 2005 (NSW) r 11.5; Uniform Civil Procedure Rules 1999(Qld) r 127(a); Supreme Court Civil Rules 2006 (SA) r 41B ; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.03.

5.139 Even when leave is required, failure to obtain leave before service may not be fatal to the effectiveness of service. In some jurisdictions, there is specific provision for service to be confirmed after the event.262 Further, the rules in some jurisdictions expressly provide that service may be effective, even when made without leave or subsequent confirmation, if the person who is served waives any objection to service by filing an unconditional appearance.263

262 Federal Court Rules 2011 (Cth) rr 10.43(6), (7) and 10.44(3); Supreme Court Rules (NT) rr 7.02(5) and 7.03(3); Supreme Court Civil Rules 2006 (SA) r 40G(3) and (4) (applies only to documents other than originating process). 263 Federal Court Rules 2011 (Cth) r 10.43(1)(c); Supreme Court Rules (NT) r 7.01(c). Conditional and unconditional appearances are discussed in Chapter 6, 6.51–6.62. It should be noted that in New South Wales, where there is no provision for conditional appearance, a defendant who enters an appearance does not thereby submit to the jurisdiction: see 6.61.

5.140 In most jurisdictions, service of documents other than the originating process requires leave of the court.264

Page 221

Page 53 of 63 Chapter 5 Service 264 Federal Court Rules 2011 (Cth) r 10.44(1); Court Procedures Rules 2006 (ACT) r 6508; Uniform Civil Procedure Rules 2005 (NSW) r 11.8AB; Supreme Court Rules (NT) r 7.03; Supreme Court Civil Rules 2006 (SA) r 40G; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.08; Rules of the Supreme Court 1971(WA) O 10 r 7. Cf Uniform Civil Procedure Rules 1999 (Qld) r 128(2).

5.141 Where leave is required for service (of either the originating process or some other document), most jurisdictions have rules which prescribe the material which must be before the court on the plaintiff’s application to serve outside Australia. The content of the rules varies widely between jurisdictions, but depending on the jurisdiction, plaintiffs may be required to provide evidence that they have a prima facie cause of action, evidence concerning the desirability of the Australian court assuming jurisdiction, evidence as to the whereabouts of the person to be served, or to inform the court about the method of service they propose to use, amongst other things.265

265 Federal Court Rules 2011 (Cth) r 10.43(2)–(4) ; Court Procedures Rules 2006 (ACT) r 6503(4); Supreme Court Rules (NT) r 7.02(3); Supreme Court Civil Rules 2006 (SA) rr 40B(2) (originating process) and 40G(2) (other documents); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.03(4); Rules of the Supreme Court 1971 (WA) O 10 r 4.

5.142 The court has a general power to set aside service in any event, and can set aside orders giving leave to serve outside Australia.266 Nevertheless, in Victoria, there is further specific provision that the court may set aside service effected on a defendant outside Australia without leave.267 In Queensland, the court is obliged to set aside service of an originating process if service was not authorised by the general provision entitling service without leave.268

266 The court’s power to set aside service is discussed further in Chapter 6, 6.40 –6.50. 267 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.04. 268 Uniform Civil Procedure Rules 1999 (Qld) r 126.

Method of service

5.143 As a general principle of comity amongst nations, the mode of service out of the jurisdiction must pay full respect to the sovereignty of the country in which the claim form is served. Australian jurisdictions have two types of rules which prescribe methods for service outside Australia. Some jurisdictions have only one type of rule, others have both.

5.144 First, in some jurisdictions, the rules provide that the general provisions for the method of service apply equally where service is made outside Australia, but then also contain a proviso to the effect that the rules ‘do not require or allow the doing of anything in a country in which service is to be made that is contrary to the law of the country’, or that they do not require anything which is inconsistent with any applicable convention concerning the service of

Page 54 of 63 Chapter 5 Service documents.269 Secondly, there is an additional or alternative rule that personal service (which is required for all Australian originating processes) is not required outside Australia, provided that service is effected in accordance with the law of the foreign jurisdiction.270 An exception to this general scheme is Tasmania, which contains neither type of rule.

Page 222

269 Federal Court Rules 2011 (Cth) r 10.45; Supreme Court Rules (NT) r 7.04; Uniform Civil Procedure Rules 1999 (Qld) r 129; Supreme Court Civil Rules 2006 (SA) r 41AA; Rules of the Supreme Court 1971 (WA) O 10 r 10(1) and (2). 270 Federal Court Rules 2011 (Cth) r 10.46; Court Procedures Rules 2006 (ACT) r 6509; Uniform Civil Procedure Rules 2005 (NSW) r 11.8AC; Supreme Court Rules (NT) r 7.05; Supreme Court Civil Rules 2006 (SA) r 40H; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 7.09; Rules of the Supreme Court 1971(WA) O 10 r 10(3).

5.145 However, it is generally insufficient for a plaintiff merely to effect service out of the jurisdiction in the same manner that it would on a person within the jurisdiction. Instead, service must be effected through diplomatic channels, or through some other authority where there exists a convention concerning the service of process between Australia and the foreign jurisdiction.

5.146 The rules in each jurisdiction differ, but in general it is necessary for the plaintiff to lodge with the registrar of the court copies of the documents to be served, together with a request that they be served by a particular method (if required),a translation of the document (if necessary), and an undertaking to pay the expenses of service.271 In some jurisdictions, separate provision is made for service in convention countries and non-convention countries. As the name suggests, these are, respectively, countries with which Australia has a treaty concerning the service of process,and those with which it does not. However, it should be noted that where service is to be effected under the Hague Convention (rather than some other convention), entirely separate rules apply, which are addressed separately below.

271 Federal Court Rules 2011 (Cth) rr 10.51 and 10.52; Uniform Civil Procedure Rules 2005 (NSW) rr 11.10 and 11.11; Supreme Court Rules (NT) r 7.08; Uniform Civil Procedure Rules 1999 (Qld) r 130; Supreme Court Civil Rules 2006 (SA) r 41AF; Supreme Court Rules 2000 (Tas) rr 148–151; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 7.10–7.12; Rules of the Supreme Court 1971 (WA) O 10 r 9.

5.147 In some jurisdictions, there are provisions for substituted or deemed service outside the jurisdiction. As noted earlier, in the absence of such a provision in the rules, a plaintiff cannot obtain an order for substituted service outside the jurisdiction.272

272 See 5.116 above.

Page 55 of 63 Chapter 5 Service

Service under the Hague Convention

5.148 The rules for service under the Hague Convention are consistent across Australia.273 The rules apply only to service within other countries which are parties to the Hague Convention.274

273 Federal Court Rules 2011 (Cth) Div 10.6; Court Procedures Rules 2006 (ACT)Div 6.8.12; Uniform Civil Procedure Rules 2005 (NSW) Pt 11A; Supreme Court Rules (NT) O 7A; Uniform Civil Procedure Rules 1999 (Qld) Ch 4 Pt 7 Div 3; Supreme Court Civil Rules 2006 (SA) Ch 3 Pt 4 Div 4; Supreme Court Rules 2000 (Tas) Pt 38A; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 80; Rules of the Supreme Court 1971 (WA) O 11A. 274 Federal Court Rules 2011 (Cth) r 10.63; Court Procedures Rules 2006 (ACT) r 6552; Uniform Civil Procedure Rules 2005 (NSW) r 11A.3; Supreme Court Rules (NT) r 7A.03; Uniform Civil Procedure Rules 1999 (Qld) r 130C; Supreme Court Civil Rules 2006 (SA) r 41C; Supreme Court Rules 2000 (Tas) r 970C; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.03; Rules of the Supreme Court 1971 (WA) O 11A r 3.

5.149 A party wishing to serve abroad under the Hague Convention must apply to the registrar of the court in which the proceedings are issued.275 The application must

Page 223 include three copies of each of: a draft request for service abroad; the document which is to be served, and a summary of the document; and (if required by the Convention), a translated version of the document and the summary.276 The applicant must also provide a written undertaking to be liable for all of the costs of service.277

275 Federal Court Rules 2011 (Cth) r 10.64(1); Court Procedures Rules 2006 (ACT) r 6553(1); Uniform Civil Procedure Rules 2005 (NSW) r 11A.4(1); Supreme Court Rules (NT) r 7A.04(1); Uniform Civil Procedure Rules 1999 (Qld) r 130D(1); Supreme Court Civil Rules 2006 (SA) r 41D(1); Supreme Court Rules 2000 (Tas) r 970D(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.04(1) (application must be made to the Prothonotary); Rules of the Supreme Court 1971 (WA) O 11A r 4(1). 276 Federal Court Rules 2011 (Cth) r 10.64(2), (4) and (5); Court Procedures Rules 2006 (ACT) r 6553(2), (4) and (5); Uniform Civil Procedure Rules 2005 (NSW) r 11A.4(2), (4) and (5); Supreme Court Rules (NT) r 7A.04(2), (4) and (5); Uniform Civil Procedure Rules 1999 (Qld) r 130D(2), (4) and (5); Supreme Court Civil Rules 2006 (SA) r 41D(2), (4) and (5); Supreme Court Rules 2000 (Tas) r 970D(2), (4) and (5); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.04(2), (4) and (5); Rules of the Supreme Court 1971 (WA) O 11A r 4(2), (4) and (5). 277 Federal Court Rules 2011 (Cth) rr 10.64(3) and 10.67 ; Court Procedures Rules 2006 (ACT) rr 6553(3) and 6556; Uniform Civil Procedure Rules 2005 (NSW) rr 11A.4(3) and 11A.7; Supreme Court Rules (NT) rr 7A.04(3) and 7A.07; Uniform Civil Procedure Rules 1999 (Qld) rr 130D(3) and 130G; Supreme Court Civil Rules 2006 (SA) rr 41D(3) and 41G; Supreme Court Rules 2000 (Tas) rr 970D(3) and 970G; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 80.04(3) and 80.07;Rules of the Supreme Court 1971 (WA) O 11A r 4(3) and r 7.

5.150 If the documents are submitted in compliance with the rules, the registrar must forward two copies of each of these documents to the appropriate authority in the country in which the documents are to be served.278

Page 56 of 63 Chapter 5 Service

278 Federal Court Rules 2011 (Cth) r 10.65; Court Procedures Rules 2006 (ACT) r 6554; Uniform Civil Procedure Rules 2005 (NSW) r 11A.5; Supreme Court Rules (NT) r 7A.05; Uniform Civil Procedure Rules 1999 (Qld) r 130E; Supreme Court Civil Rules 2006 (SA) r 41E; Supreme Court Rules 2000 (Tas) r 970E; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.05; Rules of the Supreme Court 1971 (WA) O 11A r 5.

5.151 If service is effected in the foreign jurisdiction, the authority there will forward to the registrar a certificate for service. The registrar must, in turn, cause this to be filed in the Australian proceedings, and forward a copy to the applicant or its solicitor.279 This certificate is, in the absence of contrary evidence, proof that service was effected in the manner described on the certificate, and (if that method was requested by the applicant) that the manner in which service was effected was compatible with the law of the foreign jurisdiction.280

279 Federal Court Rules 2011 (Cth) r 10.66; Court Procedures Rules 2006 (ACT) r 6555; Uniform Civil Procedure Rules 2005 (NSW) r 11A.6; Supreme Court Rules (NT) r 7A.06; Uniform Civil Procedure Rules 1999 (Qld) r 130F; Supreme Court Civil Rules 2006 (SA) r 41F; Supreme Court Rules 2000 (Tas) r 970F; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.06; Rules of the Supreme Court 1971 (WA) O 11A r 6. 280 Federal Court Rules 2011 (Cth) r 10.68; Court Procedures Rules 2006 (ACT) r 6557; Uniform Civil Procedure Rules 2005 (NSW) r 11A.8; Supreme Court Rules (NT) r 7A.08; Uniform Civil Procedure Rules 1999 (Qld) r 130H; Supreme Court Civil Rules 2006 (SA) r 41H; Supreme Court Rules 2000 (Tas) r 970H; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.08; Rules of the Supreme Court 1971 (WA) O 11A r 8.

5.152 If a certificate of service is filed, but the defendant does not appear or file a notice of address for service, the court may enter default judgment, provided that it is

Page 224 satisfied of two matters.281 First, the court must be satisfied that service was effected in a manner prescribed by law in the foreign jurisdiction, or in a manner compatible with the law, or that the defendant voluntarily accepted the document. Secondly, the court must be satisfied that the defendant had sufficient time to enter an appearance; usually, this will be 42 days from the day on which service was effected.

281 Federal Court Rules 2011 (Cth) r 10.70; Court Procedures Rules 2006 (ACT) r 6559; Uniform Civil Procedure Rules 2005 (NSW) r 11A.10; Supreme Court Rules (NT) r 7A.10; Uniform Civil Procedure Rules 1999 (Qld) r 130J; Supreme Court Civil Rules 2006 (SA) r 41J; Supreme Court Rules 2000 (Tas) r 970J; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.10; Rules of the Supreme Court 1971 (WA) O 11A r 10.

5.153 If a certificate of service is not filed (or the certificate states that service has not been effected), default judgment may nevertheless be granted, but on far more restrictive conditions.282 First, the court must be satisfied that the originating process was in fact forwarded to the foreign authority, and that every effort has been made to obtain a

Page 57 of 63 Chapter 5 Service certificate of service from them, or to effect service (depending on the circumstances of the case). Secondly, a period of time ‘that is adequate in the circumstances’, but not less than six months, must have elapsed since the originating process was forwarded by the local registrar.

282 Federal Court Rules 2011 (Cth) r 10.71; Court Procedures Rules 2006 (ACT) r 6560; Uniform Civil Procedure Rules 2005 (NSW) r 11A.11; Supreme Court Rules (NT) r 7A.11; Uniform Civil Procedure Rules 1999 (Qld) r 130K; Supreme Court Civil Rules 2006 (SA) r 41K; Supreme Court Rules 2000 (Tas) r 970K; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.11; Rules of the Supreme Court 1971 (WA) O 11A r 11.

5.154 In either case, default judgment may be set aside within 12 months of having been made, if the court is satisfied that the defendant did not have knowledge of the originating process in sufficient time to defend the proceedings, and that there is a prima facie defence.283 This power is in addition to the general power of the court to set aside default judgment.

283 Federal Court Rules 2011 (Cth) r 10.72; Court Procedures Rules 2006 (ACT) r 6561; Uniform Civil Procedure Rules 2005 (NSW) r 11A.12; Supreme Court Rules (NT) r 7A.12; Uniform Civil Procedure Rules 1999 (Qld) r 130L; Supreme Court Civil Rules 2006 (SA) r 41L; Supreme Court Rules 2000 (Tas) r 970L; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 80.12; Rules of the Supreme Court 1971 (WA) O 11A r 12.

Staying proceedings on the grounds of forum non conveniens

5.155 All Australian courts have a power to stay proceedings on the grounds of forum non conveniens; that is, on the basis that the Australian court is a ‘clearly inappropriate forum’ for determining a particular dispute.284 This is part of the inherent power of the court to prevent the abuse of its own process: in this case, by being used as a tool of injustice.285 This power is by no means confined to claims

Page 225 served out of the jurisdiction. An objection on this ground may be raised even where proceedings have been served within the jurisdiction.286 Further, it may be raised irrespective of whether service has been effected pursuant to the Hague Convention or other rules of court.

284 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ; Puttick v Tenon Ltd (2008) 238 CLR 265 at 276–7 per French CJ, Gummow,Hayne and Kiefel JJ. See also Chapter 14, 14.69–14.72. For a discussion of the principle of forum non conveniens, see M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths,Sydney, 2014, Ch 8. 285 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391

.

286 Reichhold Norway ASA v Goldman Sachs [2000] 2 All ER 679; [2000] 1 WLR 174

5.156

(CA)

.

Page 58 of 63 Chapter 5 Service A defendant who wishes to challenge the jurisdiction will usually apply to have service set aside. The process for making such an application will be addressed separately in Chapter 6. Where the defendant asserts that proceedings ought to be stayed in Australia in favour of a New Zealand court, the Trans-Tasman Proceedings Act 2010 (Cth) makes provision for how the defendant ought to make its application,and the applicable principles.287

287 Trans-Tasman Proceedings Act 2010 (Cth) Pt 3.

5.157 The account that follows is not intended to provide a detailed exposition of the law on this point, but merely to draw attention to the type of objection that may be made in this regard. It should be noted that this section addresses only challenges to the jurisdiction made by defendants outside Australia; the choice of forum within Australia is dealt with separately in Chapter 2.

5.158 The Australian rules of forum non conveniens differ from those in England, where the equivalent test is essentially whether there is a more appropriate forum.288 This necessarily requires some degree of comparison between England and the foreign jurisdiction. Conversely, the Australian test does not require such comparison. Rather, the focus is on the appropriateness (or otherwise) of the Australian jurisdiction.289

288 The leading case is Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460

; [1986] 3 All ER 843 (HL)

. 289 The differences between the two tests, and the policy reasons favouring the Australian approach, were discussed by the majority in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557–61 and Gaudron JJ. See also Henry v Henry (1996) 185 CLR 571 at 586–7

per Mason CJ, Deane, Dawson

per Dawson, Gaudron, McHugh and

Gummow JJ; Puttick v Tenon Ltd (2008) 238 CLR 265; [2008]HCA 54 at [27]–[30] and Kiefel JJ.

per French CJ, Gummow, Hayne

5.159 In Australia, the starting point is that the plaintiff may select the forum in which to commence proceedings, although the plaintiff’s ‘right’ to choose the jurisdiction is not a factor which will carry much weight in the usual course.290 An Australian court will only restrain proceedings from being continued in its jurisdiction if it is a ‘clearly inappropriate’ forum.291 Deane J expressed the point emphatically when he stated that:292 The power [to stay proceedings on the ground of forum non conveniens] should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a

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forum for their determination that their continuation would be oppressive and vexatious to him.

290 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241 Flour Mills Pty Ltd (1990) 171 CLR 538 at 554,565–6,571 Henry (1996) 185 CLR 571 at 588–9

per Deane J; Voth v Manildra

per Mason CJ, Deane, Dawson and Gaudron JJ; Henry v

per Dawson, Gaudron, McHugh and Gummow JJ.

291 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557–61 Dawson and Gaudron JJ.

, especially 558–9 per Mason CJ, Deane,

292 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 248

per Deane J.

5.160 Usually, the defendant will bear the onus of establishing that the Australian jurisdiction is clearly inappropriate. However, the onus will lie on the plaintiff if the plaintiff was required to obtain leave before serving outside Australia.293 The relevant principles were identified in Voth v Manildra Flour Mills Pty Ltd .294 In considering whether the Australian jurisdiction is clearly inappropriate, the following factors are relevant, although no single matter is determinative, and the result will depend on a balancing exercise:295 •

The degree of connection between the cause of action and the jurisdiction in which proceedings have been commenced (or the foreign jurisdiction) — described as ‘connecting factors’.296 Connecting factors may include the location of witnesses and other evidence, the place in which the relevant acts or omissions occurred, and the location of the parties.297 Another connecting factor is whether the law of that jurisdiction will govern the resolution of the proceedings,298 although this is not determinative, particularly where the law of the foreign jurisdiction is substantially similar to that of the Australian jurisdiction.299

•

Whether there is a ‘legitimate personal or juridical advantage’ to the plaintiff through proceeding in the Australian jurisdiction.

293 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 563–4 294 (1990) 171 CLR 538 Fay (1988) 165 CLR 197

per Mason CJ, Deane, Dawson and Gaudron JJ.

, endorsing the judgment of Deane J in Oceanic Sun Line Special Shipping Company Inc v .

295 For a discussion of the principle of forum non conveniens, see M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, Ch 8, especially[8.19]. 296 Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460 at 477–8 per Lord Goff; [1986] 3 All ER 843 (HL), endorsed by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–5 per Mason CJ, Deane, Dawson and Gaudron JJ. 297 Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460

at 477–8

per Lord Goff; [1986] 3 All ER

843 (HL). See, for example, Voth v Manildra Flour Mills Pty Ltd (1990)171 CLR 538 at 570–1 Deane, Dawson and Gaudron JJ.

per Mason CJ,

298 As to this point, see M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [8.37]–[8.43]. 299 Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54 at [31]

per French CJ, Gummow, Hayne and Kiefel JJ.

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5.161 The concept of a ‘legitimate juridical advantage’ to the plaintiff was first explained by Lord Goff in the leading English judgment of Spiliada,300 and has been endorsed by the Australian High Court as useful in the application of the ‘clearly inappropriate forum’ test.301 In relation to substantive law, a legitimate juridical advantage might exist where a remedy is only available in an Australian court and would not be granted in a foreign jurisdiction;302 claims for misleading and deceptive

Page 227 conduct under s 18 of the Australian Consumer Law (which corresponds to s 52 of earlier Trade Practices Act 1974 (Cth)) sometimes fall into this category.303 In Voth, the fact that damages in the nature of interest were calculated on a more favourable basis in the Australian jurisdiction was identified as a legitimate juridical advantage.304

300 Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460 Lord Goff. 301 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–5 302 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558

at 482–4

; [1986] 3 All ER 843 (HL)

per

per Mason CJ, Deane, Dawson and Gaudron JJ. per Mason CJ, Deane, Dawson and Gaudron JJ.

303 M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [8.57]–[8.60]. 304 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 571

per Mason CJ, Deane, Dawson and Gaudron JJ.

5.162 English case law provides a wealth of examples of the sorts of procedural matters which might confer a legitimate juridical advantage on the plaintiff. For example, the presence of a limitation defence in one jurisdiction but not in another may be a relevant factor. Where the plaintiff’s claim is time-barred in the appropriate forum (English law requires the court to determine the most appropriate forum), but it has not acted unreasonably in failing to commence proceedings within the limitation period applicable there, considerations of justice could require the court not to deprive the plaintiff of the benefit of having complied with the time-bar in England.305 It has also been held, for example, that where a plaintiff would not be able to recover the costs of litigation in a foreign country, this may be a consideration in favour of trying the claim in England if the litigation costs in the foreign country would effectively wipe out an award in the plaintiff ’s favour.306 Similarly, if the foreign jurisdiction is liable to protracted delays such as to undermine the plaintiff’s ability to seek meaningful protection of its rights, an English court may decide to allow proceedings to take place in England.307

305 Spiliada Maritime Corp v Cansulex Ltd (The Spiliada) [1987] AC 460

at 483–4

; [1986] 3 All ER 843 (HL)

;

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 571 per Mason CJ, Deane, Dawson and Gaudron JJ; Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Co [2000] 1 Lloyd’s Rep 1 (CA). 306 Roneleigh Ltd v MII Exports Inc [1989] 1 WLR 619 571

per Mason CJ, Deane,Dawson and Gaudron JJ.

307 The Vishva Ajay [1989] 2 Lloyd’s Rep 558.

; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at

Page 61 of 63 Chapter 5 Service

5.163 One factor that is highly relevant to the court’s decision will be the existence of an agreement between the parties to litigate all their disputes in a particular jurisdiction (whether that is the Australian jurisdiction or the foreign jurisdiction), often called an ‘exclusive jurisdiction agreement’. Ordinarily, the existence of an exclusive jurisdiction agreement will be determinative. There are two principal reasons for this: first, there is the general principle that parties should be held to their agreements; and, secondly, it promotes efficiency and consistency, as it reduces the prospect of two parties litigating different disputes in different jurisdictions.308 However, exceptions are, of course, possible. For example, a court might not enforce an exclusive jurisdiction clause where circumstances in the agreed jurisdiction have changed significantly and unforeseeably, such that litigation in the agreed jurisdiction

Page 228 would have a different character to what was anticipated at the time the exclusive jurisdiction clause was agreed.309

308 See, for example, Huddart Parker Ltd v The Ship ‘Mill Hill’ and her Cargo (1950) 81 CLR 502 at 508–9 see also CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392 McHugh, Gummow and Kirby JJ.

per Mason J;

per Dawson, Toohey, Gaudron,

309 See generally M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, [7.79]–[7.93].

5.164 Because it is undesirable that parallel proceedings concerning the same issue should be held in different countries, the fact that proceedings are already pending in a different jurisdiction provides a good ground for objecting to proceedings in an Australian jurisdiction on the basis that they are vexatious and oppressive.310 This is consistent with the general policy of avoiding multiplicity of proceedings.311

310 Henry v Henry (1996) 185 CLR 571 at 590–1

per Dawson, Gaudron, McHugh and Gummow JJ.

311 The various doctrines which restrain repetitive litigation are discussed separately in Chapter 26, 26.63–26.146.

Restraining foreign proceedings

5.165 Just as a party may object to the jurisdiction of an Australian court, so a party may object to litigation in a foreign country and insist on adjudication in an Australian jurisdiction. The mechanism for doing so is by applying for an order directing the opponent to refrain from commencing proceedings in another jurisdiction or from maintaining proceedings already under way. Such an order is referred to as an ‘anti-suit injunction’.

5.166 The principles applicable to the grant of an injunction to restrain the commencement or continuance of proceedings in a foreign jurisdiction are somewhat different from those applicable to the grant of a stay of Australian proceedings

Page 62 of 63 Chapter 5 Service on the basis that it is a clearly inappropriate forum.312 This is because an order prohibiting a person from commencing or maintaining disputes in a foreign jurisdiction may encroach on the jurisdiction of foreign courts, which an Australian court will always be reluctant to do. Therefore the greatest of care is taken before making such an order and the following principles must be observed.313 Nevertheless, as a preliminary matter, an Australian court must be satisfied that it is not a clearly inappropriate forum.314

312 Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 Ltd (1997) 189 CLR 345 at 390

; CSR Ltd v Cigna Insurance Australia

per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.

313 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 395–6 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

314 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 397–8 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

5.167 The principles governing the grant of an anti-suit injunction derive from the leading Privy Council decision of Société Nationale Industrielle Aerospatiale v Lee Kui Jak ,315 which has been endorsed by the High Court of Australia.316 An order restraining foreign proceedings may only be made against parties over whom the court has personal jurisdiction; it must not be directed against a foreign court or state authority.

Page 229 An anti-suit injunction will be made only where the interests of justice demand it, or where it is necessary to protect the integrity of the process of the Australian court.317 Because of this, the range of circumstances in which foreign proceedings may be restrained is not fixed, although case law discloses some common categories.318

315 [1987] AC 871

.

316 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

.

317 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

318 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391–4 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

5.168 One basis on which an anti-suit injunction may be granted is that the party making the application has demonstrated that it is vexatious or oppressive to be subjected to proceedings in a foreign court. Foreign proceedings will only be regarded as vexatious or oppressive if they will achieve nothing beyond that which would be achieved in the Australian proceedings.319 The High Court of Australia has described proceedings as vexatious or oppressive where there is ‘complete correspondence between the proceedings’, or if ‘complete relief’ is available in the Australian jurisdiction.320 The court would not grant an injunction restraining foreign proceedings if to do so would unjustly deprive a party of significant advantages in the foreign forum.

Page 63 of 63 Chapter 5 Service 319 Bank of Tokyo Ltd v Karoon [1987] AC 45

at 60

per Robert Goff LJ.

320 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393–4 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

5.169 Again, the existence of an exclusive jurisdiction clause will be relevant. Where a contract provides for litigation in Australia, the court will normally restrain a party from commencing proceedings abroad in breach of contract. In such cases,concerns about encroaching on the jurisdiction of the foreign court are less significant, because the decision of the Australian court to restrain the foreign proceedings is not grounded on a judgment about the justice of proceedings in that other jurisdiction,but is instead grounded simply on the parties’ own agreement.321

321 The Angelic Grace [1995] 1 Lloyd’s Rep 87 at 96; the judgment was cited with approval by the majority in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392

.

5.170 In sum, the court must strike a balance between the parties’ conflicting interests and hence would restrain foreign proceedings only if the injustice to the applicant, in allowing the proceedings abroad to continue, would be greater than the injustice to the other party, should the proceedings be restrained. Where appropriate, the court may require the successful party to the application to satisfy certain conditions: such as giving an undertaking designed to safeguard the opponent’s interests.

End of Document

Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 6 — Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction Page 231 [Current to May 2018]

Introduction

6.1 In some Australian jurisdictions, obligations are imposed on the parties to engage in some sort of negotiation or alternative dispute resolution before proceedings are commenced.1 For that reason, many defendants will be aware of proceedings against them before they are served with an originating process, and may already have engaged in some steps aimed at resolving the dispute with the plaintiff. Therefore, the first document that the defendant files in the proceedings may well not be the first occasion for the defendant to acknowledge the existence of a dispute with the plaintiff. Nevertheless, in most jurisdictions, the defendant, once served with an originating process, is usually not permitted take any step in the proceedings unless and until it has filed an initial document, referred to as a notice of appearance, a notice of address for service, or a notice of intention to respond or defend.2

1

For a discussion of pre-commencement obligations generally, see Chapter 4, 4.9–4.32.

2

Federal Court Rules 2011 (Cth) r 11.06; Court Procedures Rules 2006 (ACT) r 100(1) (proceedings commenced by originating claim; a defence may be filed in lieu of a notice of intention to respond), 100(3) (proceedings commenced by originating application); Uniform Civil Procedure Rules 2005 (NSW) r 6.1(1), but see also r 6.1(2); Supreme Court Rules(NT) r 8.02; Uniform Civil Procedure Rules 1999 (Qld) r 135 (proceedings commenced by claim), contrast r 29(6) (proceedings commenced by application); Supreme Court Rules 2000 (Tas) r 125 (proceedings commenced by originating application only); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.02.

6.2 In Chapter 4, it was explained that there is presently a diversity of approaches in Australian jurisdictions concerning the manner in which proceedings are commenced. There are two variables. First, in some jurisdictions, the pleading may be filed separately from the originating process, and may be filed as long as 12 months after the originating process. Secondly, in some jurisdictions, there is a single method for commencing all court proceedings, whereas in others there are separate methods

Page 232

Page 2 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction for commencing different forms of proceeding.3 These differences in the manner of commencement lead to corresponding differences in the nature and timing of the defendant’s initial document in response.

3

For example, a separate originating process is commonly provided for proceedings involving no dispute of fact (for example, where there is no defendant, or where the dispute turns on a question of law), in which there is, therefore, no need for discovery or pleadings.

6.3 A defendant that is served with an originating process has several options, depending on the jurisdiction. First, it may do nothing, in which case the plaintiff may seek default judgment.4 Secondly, the defendant may enter an appearance, which indicates an intention to contest the proceedings. (The defendant’s initial document in response will be referred to as an appearance in this chapter, although terminology varies between jurisdictions). Thirdly, in some jurisdictions, it may enter a submitting appearance, which indicates that it will take no active part in the proceedings, but that it consents to being bound by any orders that the court makes in the proceedings.Fourthly, the defendant may contest the jurisdiction. This chapter addresses the second to fourth options.

4

See Chapter 9.

Defendant’s initial document in response where the proceedings are contested Federal Court

6.4 There is a single form of originating process for all proceedings in the Federal Court: the originating application.5 A respondent served with an originating application must file a notice of address for service in the prescribed form before the return date.6 The return date is the first occasion on which the application will be before the court; it is set by the registrar, and endorsed on the application.

5

See Chapter 4, 4.59.

6

Federal Court Rules 2011 (Cth) r 5.02; see also rr 11.07 and 11.08.

6.5 If the plaintiff has filed a genuine steps statement, the respondent must also file a genuine steps statement in the prescribed form before the return date.7 As was explained in Chapter 4,8 a genuine steps statement identifies the steps taken by the parties to resolve the dispute, or the reasons for not having taken such steps.9 The respondent’s genuine steps statement must indicate whether the respondent agrees with the plaintiff’s statement, and if not, identify the reasons for disagreement.10

Page 3 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

7

Federal Court Rules 2011 (Cth) r 5.03.

8

See Chapter 4, 4.9–4.12.

9

Civil Dispute Resolution Act 2011 (Cth) s 6(2).

10 Civil Dispute Resolution Act 2011 (Cth) s 7.

6.6 As explained in Chapter 4, the originating application must be accompanied by a statement of claim or affidavit.11 Where the originating application is accompanied by a statement of claim (or if the court has subsequently ordered that the proceedings

Page 233 continue by way of pleadings), a defence must be filed 28 days after service of the statement of claim.12

11 Federal Court Rules 2011 (Cth) r 8.05; see Chapter 4, 4.62. 12 Federal Court Rules 2011 (Cth) rr 16.31 and 16.32.

Australian Capital Territory

6.7 In the Australian Capital Territory, there are two forms of originating process.13 The originating application may be used where the proceedings turn on a question of law, where there is no defendant, or where relief is sought on an urgent basis. It is also the appropriate form of originating process where legislation entitles a person to claim relief and no other form of originating process is specified. An originating claim is used in all other cases.

13 See Chapter 4, 4.64–4.66.

6.8 Where the proceedings have been commenced by originating claim, the defendant may take no step in the proceedings unless it has first filed either a defence or a notice of intention to respond.14 A defendant that files a notice of intention to respond must also file a defence,15 unless it wishes merely to submit to judgment and take no active part in the proceeding;16 this is discussed further below.17 The notice of intention to respond and/or defence must usually be filed within 28 days of the service of the claim.18 Where a defendant files a notice of intention to respond, no additional time is permitted for filing the defence; both documents must be filed within the 28-day period.

14 Court Procedures Rules 2006 (ACT) r 100(1).

Page 4 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction 15 Court Procedures Rules 2006 (ACT) r 100(2). 16 Court Procedures Rules 2006 (ACT) r 106. 17 See 6.32–6.35. 18 Court Procedures Rules 2006 (ACT) r 102(1)(a). There is an exception: where the defendant has unsuccessfully applied to set aside the originating process,the notice of intention to respond and/or defence must be filed within seven days of the application being refused: r 102(1)(b).

6.9 Similarly, where proceedings have been commenced by originating application, a defendant may take no step before filing a notice of intention to respond.19 The notice of intention to respond must usually be filed on or before the return date.20 The return date for an application is the date on which it will be before the court; this date is set by the court.21 The first return date will be endorsed on the originating application.22

19 Court Procedures Rules 2006 (ACT) r 100(3). 20 Court Procedures Rules 2006 (ACT) r 102(3)(a). Again, there is an exception where the defendant has unsuccessfully applied to set aside the originating process; in such cases the notice of intention to respond must be filed within seven days of the application being refused: r 102(3)(b). 21 Court Procedures Rules 2006 (ACT) Dictionary. 22 Court Procedures Rules 2006 (ACT) r 60(9).

6.10 Whether a defendant files a notice of intention to respond or a defence, there is certain information which must be included. The defendant must identify whether it is represented (and the name of any solicitor), and its address for service.23 It must also correct the particulars about the defendant in the originating process, if necessary.24

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23 Court Procedures Rules 2006 (ACT) r 101(1)(a), (b) and (c), (2)(a), (b) and (c). 24 Court Procedures Rules 2006 (ACT) r 101(1)(d), (2)(d); see also r 101(3).

New South Wales

6.11 The Uniform Civil Procedure Rules provide for two forms of originating process.25 In broad terms, a summons will be used where the proceedings turn on a point of law, or where there is no defendant. In other cases, the originating process will be a statement of claim.

Page 5 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

25 See Chapter 4, 4.76.

6.12 Where proceedings are commenced by statement of claim, a defendant may enter its appearance by filing its defence, or by entering a notice of appearance.26 Either document must be filed within 28 days of service of the statement of claim; filing a notice of appearance does not extend the time allowed to the defendant for its defence to be filed. As in the Australian Capital Territory, a notice of appearance should be used where the defendant intends to submit to judgment.

26 Uniform Civil Procedure Rules 2005 (NSW) rr 6.10(1)(a)(i) and 14.3(1), see also r 6.9.

6.13 Where proceedings are commenced by summons, the defendant should enter an appearance on or before the return date;27 that is, the first date on which the proceedings will be before the court. The return date may be fixed by the court; if this is not done, it ought to be obtained from the registry.28

27 Uniform Civil Procedure Rules 2005 (NSW) r 6.10(1)(b)(i). 28 Uniform Civil Procedure Rules 2005 (NSW) r 6.15.

6.14 As noted above, a defendant usually may not take any step in the proceedings unless it has entered an appearance.29 However, provision is made for certain exceptions: for example, a defendant may apply for an order setting aside the service of the originating process30 before it has entered an appearance.31 If a defendant makes an unsuccessful application to have the originating process set aside, then the defendant’s notice of appearance or defence is required seven days after the refusal of the application, if that is later than the 28 days that would ordinarily be permitted.32

29 Uniform Civil Procedure Rules 2005 (NSW) r 6.1(1). 30 See Uniform Civil Procedure Rules 2005 (NSW) r 12.11 as to setting aside the originating process. 31 Uniform Civil Procedure Rules 2005 (NSW) r 6.1(2). 32 Uniform Civil Procedure Rules 2005 (NSW) r 6.10(1)(a)(ii) and (b)(ii).

Northern Territory

Page 6 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

6.15 There are two forms of originating process in the Northern Territory.33 An originating motion must be used where there is no defendant, or where it is required by legislation or the rules, and it may be used where a substantial dispute of fact is unlikely. In all other cases, proceedings must be commenced by writ.

33 See Chapter 4, 4.83.

6.16 A defendant must file an appearance within seven days of being served with a writ or originating motion.34 This time is extended to 14 days if the place of service is

Page 235 more than 200km from the registry,35 and further provision is made for longer periods if the originating process is served outside the Northern Territory.36

34 Supreme Court Rules (NT) r 8.04(a). 35 Supreme Court Rules (NT) r 8.04(a)(iii). 36 Supreme Court Rules (NT) r 8.04(b)–(d).

6.17 The notice of appearance must be in the prescribed form, and served on the plaintiff on the same day or the next working day.37 It must identify an address for service within the Northern Territory, and whether the defendant is represented (and the identity of any solicitor).38

37 Supreme Court Rules (NT) r 8.05(1) and (2), see also (4). 38 Supreme Court Rules (NT) r 8.06(1) and (2).

Queensland

6.18 There are two forms of originating process in Queensland.39 An application may be used where the proceedings turn on a question of law, where there is no defendant, or where relief is sought on an urgent basis, and must be used where legislation entitles a person to claim relief and no other form of originating process is specified. In other cases, a claim should be used.

Page 7 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

39 See Chapter 4, 4.91.

6.19 Where proceedings are commenced by claim, the defendant must file a notice of intention to defend within 28 days of having been served with the claim.40 The notice of intention to defend must be in the approved form, and attach a defence.41

40 Uniform Civil Procedure Rules 1999 (Qld) r 137(1), but see also r 137(2). 41 Uniform Civil Procedure Rules 1999 (Qld) r 139, see also rr 140–142.

6.20 Where proceedings are commenced by originating application, a defendant may not file a notice of intention to defend, but may instead file a notice of address for service.42 Unusually, the rules expressly provide that a failure to file a notice of address for service does not affect the defendant’s right to be heard.43

42 Uniform Civil Procedure Rules 1999 (Qld) r 29(1) and (2); see r 25 as to the application of Pt 4 to originating process in the form of an application. 43 Uniform Civil Procedure Rules 1999 (Qld) r 29(6).

South Australia

6.21 All proceedings in South Australia are commenced by summons, in the absence of a specific rule to the contrary, which will usually include or be accompanied by a statement of claim.44 No express provision is made in the South Australian rules for a separate notice of appearance. A defendant is obliged to file a defence within 28 days of being served with the statement of claim.45 The defendant’s address for service will be taken to be the address for service shown on the first document filed by the defendant.46 However, if the defendant has not served a defence within 14 days (longer periods are prescribed if service is effected under the Service and

Page 236 Execution of Process Act 1992 (Cth) or the Trans-Tasman Proceedings Act 2010 (Cth)),the defendant must file a notification of its address for service in the approved form.47 In practice, therefore, the defendant is likely to be obliged to file a notice of address for service as its first document after being served with the statement of claim.

44 See Chapter 4, 4.98; see Supreme Court Civil Rules 2006 (SA) r 91(2) as to the circumstances in which the summons need not be accompanied by a statement of claim. 45 Supreme Court Civil Rules 2006 (SA) r 92(2).

Page 8 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction 46 Supreme Court Civil Rules 2006 (SA) r 59(2). 47 Supreme Court Civil Rules 2006 (SA) r 59(3); see also Supreme Court Civil Supplementary Rules 2014 (SA) r 56(1).

Tasmania

6.22 There are two forms of originating process in Tasmania.48 In general terms, proceedings involving a dispute of fact will be commenced by writ, and proceedings turning on a point of law, or which do not involve a defendant, will be commenced by originating application.

48 See Chapter 4, 4.101.

6.23 Any served person who wishes to participate in proceedings must file and serve a notice of appearance in the prescribed form.49 The defendant must file an appearance within seven days of being served with a writ or other originating process.50 Provision is made for a longer period if the originating process is served out of the jurisdiction.51

49 Supreme Court Rules 2000 (Tas) r 154(1) and (3). 50 Supreme Court Rules 2000 (Tas) r 98. 51 Supreme Court Rules 2000 (Tas) r 99.

6.24 The notice of appearance must state the name and address of any solicitor, or the address and address for service of an unrepresented party.52 It must be served on the plaintiff or any solicitor as soon as practicable after filing.53

52 Supreme Court Rules 2000 (Tas) r 159. 53 Supreme Court Rules 2000 (Tas) r 157(4) and (5).

Victoria

6.25 There are two forms of originating process in Victoria.54 In general terms, an originating motion must be used where there is no defendant, and may be used where there is unlikely to be a factual dispute; in other cases, a writ will be used.

Page 9 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

54 See Chapter 4, 4.106.

6.26 A defendant must file an appearance within 10 days of being served with a writ or originating motion.55 This time is extended to 21 days if the place of service is outside Victoria but within Australia,56 and further provision is made for longer periods if the originating process is served outside Australia.57

55 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.04(a). 56 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.04(b). 57 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.04(c)–(e).

6.27 The notice of appearance must be in the prescribed form, and served on the plaintiff on the same day.58 Separate provision is made where the originating process

Page 237 was filed using the court’s electronic case management system, RedCrest.59 The notice of appearance must identify the address of the defendant (and, if that address is outside Victoria, an address within Victoria), the identity and address within Victoria of any solicitor, and if that solicitor is an agent, the identity and address of any principal solicitor.60 It must also indicate an email address for service on the defendant.61

58 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.05(1) and (3). 59 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.05(1.1). 60 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.06(1). See r 8.06(2) as to the selection of the address for service. 61 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.06(1)(a)(iv) and 8.06(1)(b)(iii); this requirement was introduced on 1 August 2017.

Western Australia

6.28 There are three forms of originating process in Western Australia.62 A writ is the appropriate form for actions. Originating summonses are used for proceedings between parties which are to be heard in chambers. All other civil proceedings are commenced by originating motion.

Page 10 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

62 See Chapter 4, 4.115.

6.29 Where proceedings are commenced by writ, the defendant must file an appearance within the time stated in the writ. Unlike other jurisdictions, this is not identified specifically; rather, the rules indicate that the time for appearance shall be no less than 10 days if the place for service of the writ is less than 300km from Perth,63 with provision made for longer periods where the place of service is a further distance from Perth, and for the time to be fixed by the court where the place for service is outside Australia.64

63 Rules of the Supreme Court 1971 (WA) O 5 r 11(1). 64 Rules of the Supreme Court 1971 (WA) O 5 r 11(1)–(3).

6.30 Where proceedings have been commenced by originating summons, a party served must enter an appearance and give notice to the other parties before they are heard on the summons.65 The time for appearance is calculated in the same manner as where the originating process is a writ.66

65 Rules of the Supreme Court 1971 (WA) O 58 r 17(1). 66 Rules of the Supreme Court 1971 (WA) O 58 r 16.

6.31 Irrespective of the form of originating process, the notice of appearance must be in the prescribed form.67 It must identify the defendant’s geographical address and address for service, and be signed by the defendant’s solicitor (or the defendant, if they are unrepresented).68 The defendant must take steps to effect ordinary service of the notice of appearance on the day it is filed.69

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67 Rules of the Supreme Court 1971 (WA) O 12 r 2(1); see O 58 r 17(5) as to application to proceedings commenced by originating summons. 68 Rules of the Supreme Court 1971 (WA) O 12 r 2(1) and (2); see O 58 r 17(5) as to application to proceedings commenced by originating summons. 69 Rules of the Supreme Court 1971 (WA) O 12 r 4, O 72 r 5; see O 58 r 17(5) as to application to proceedings commenced by originating summons.

Page 11 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

Submitting to judgment

6.32 In the Federal Court, the Australian Capital Territory and New South Wales, the rules provide expressly that a defendant may use its initial document in response to submit to judgment. The effect of submitting to judgment is that the defendant will be bound by the orders ultimately made by the court in the proceedings, but will take no active part in those proceedings.70 A defendant who submits to judgment will usually be unable to file any further documents, or take any further step in the proceedings.71 A defendant may submit to judgment, but choose not to submit in relation to costs.72 In all jurisdictions, where an application has been made to a superior court for judicial review of a decision of a tribunal, the tribunal will ordinarily enter a submitting appearance only.73

70 Federal Court Rules 2011 (Cth) r 12.01(1); Court Procedures Rules 2006 (ACT) r 106(1); Uniform Civil Procedure Rules 2005 (NSW) r 6.11(1). 71 Court Procedures Rules 2006 (ACT) r 106(4); Uniform Civil Procedure Rules 2005 (NSW) r 6.11(2). 72 Federal Court Rules 2011 (Cth) r 12.02(2)(b); Court Procedures Rules 2006 (ACT) r 106(3); Uniform Civil Procedure Rules 2005 (NSW) r 6.11(1). 73 R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35–6

(per curiam).

6.33 In the Australian Capital Territory and New South Wales, a defendant may submit to judgment by filing its notice of intention to respond or notice of appearance, and including in it a statement to the effect that it will submit to the orders made and to judgment in relation to all claims made.74 In the Federal Court, a defendant should file a submitting notice in the prescribed form before the return date, stating that it submits to any order that the court makes.75

74 Court Procedures Rules 2006 (ACT) r 106(2); Uniform Civil Procedure Rules 2005 (NSW) r 6.11(1). 75 Federal Court Rules 2011 (Cth) r 12.01(1) and (2).

6.34 As was discussed in Chapter 4, and will be discussed further in Chapter 13, it is important that all persons who are affected by a judgment are made parties. The reasons for this are twofold. First, it is a fundamental requirement of justice that orders and judgments which affect a person must only be made when that person has had an opportunity to be heard and participate in the proceedings. It is therefore necessary that affected persons are made parties, even if they do not wish to avail themselves of the opportunity to participate in proceedings. Secondly,orders and judgments can only bind the persons who were parties to the proceedings.76 For this reason, it is necessary to ensure that all affected persons are made parties. Otherwise, the same legal questions might need to be litigated again in subsequent proceedings, which would be wasteful of the resources of the parties and the court.

Page 12 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

76 This is discussed further in Chapter 13.

6.35 For this reason, it is possible for a defendant to ‘succeed’ in proceedings even when it takes no active role. For example, if proceedings are commenced in respect of a deceased estate, or a family trust, it may be necessary for all the beneficiaries to be joined as parties, in order to ensure that the judgment binds them all. However, it does not follow that each party has a separate interest which needs to be separately pursued. The ‘real’ dispute may be between only a subset of the persons who are

Page 239 parties. Or, one party may, in effect, take the lead in putting a particular case, with the result that a judgment in that party’s favour will also be to the benefit of others. In both circumstances,it may be inefficient for all parties to take an active role, and it would therefore make sense for some of them merely to submit to judgment so that they may enjoy the benefit of a favourable outcome.

Objecting to jurisdiction or service

6.36 A defendant may seek to challenge the jurisdiction of the court on several grounds. First, the defendant may assert that the court in which the proceedings were issued does not have jurisdiction. As explained earlier in this book, the Supreme Court of each state has unlimited jurisdiction, so there can be no restrictions on the subject matter of a dispute which may be heard by the state Supreme Courts.77 However, the proceedings which may be brought in inferior or specialist courts might be limited either by subject matter or the quantum at issue.

77 See Chapter 4, 4.36–4.44 as to the choice of court within a jurisdiction.

6.37 Secondly, the defendant may contend that the proceedings ought to be brought in another Australian jurisdiction. The possibility of a defendant asserting that a state Supreme Court does not have jurisdiction because the defendant is present in another state has been eliminated by the operation of the Service and Execution of Process Act 1992 (Cth). But the defendant may contend that another Australian jurisdiction is the more appropriate forum for the proceedings. The usual course would be for the defendant to apply to have the proceedings transferred to another Australian court under the cross-vesting legislation,78 although the defendant may be able to apply for a stay of the proceedings.79

78 As to the operation of the cross-vesting Acts, see Chapter 2, 2.42–2.52. 79 A stay would be granted only where there was some element of ‘vexation, oppression or injustice’: Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51 . But see Schmidt v Won [1998] 3 VR 435 as to the exceptional nature of any such order, and for the proposition that the usual course would be an application under the Cross-vesting Acts.

Page 13 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

6.38 Thirdly, the defendant may assert that the proceedings ought to be stayed, as they ought to be brought in another jurisdiction outside Australia. This is a doctrine of private international law referred to as forum non conveniens, which was discussed in Chapter 5. The principles for seeking to have service out of the jurisdiction set aside are the same principles to be applied when a party seeks a stay on the basis that the Australian jurisdiction provides an inappropriate forum.80 It should be emphasised that the principles applicable to seeking a stay of Australian proceedings in favour of an overseas jurisdiction are not applicable where there are two competing Australian jurisdictions.81

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80 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 563–4 the applicable principles are discussed in Chapter 5, 5.155–5.164. 81 Schmidt v Won [1998] 3 VR 435 jurisdictions.

. See 6.37

per Mason CJ, Deane, Dawson and Gaudron JJ;

as to the position where there are two competing Australian

6.39 Finally, the defendant might also seek to challenge the manner in which service was effected. For example, the defendant might seek to have service set aside where the originating process contained some defect, or was served out of the jurisdiction pursuant to either a statutory provision enabling service outside the jurisdiction, or a court order granting leave to do so, or where there was some irregularity in the manner or method of service.

Setting aside ex parte orders concerning service

6.40 Orders for substituted service, or extending the time for service, or to effect service outside Australia, will ordinarily be made on an ex parte basis.82 However, once served, a defendant can apply to have any ex parte order concerning service set aside. There may be several alternative powers under which an application to set aside orders concerning service may be determined.83 The defendant’s application may be made pursuant to the court’s inherent power to set aside orders which have been made ex parte;84 such a power is also contained in the rules of court in most jurisdictions.85 In most jurisdictions, there is also specific provision to set aside service and/or orders permitting extensions of time for service, or service outside Australia.86

82 An application for substituted service, ‘of its very nature’ will be made in the absence of the defendant: Alstom Ltd v Sirakas [2010] NSWSC 669 at [34] per Palmer J. But there are some exceptions in the case of orders extending the time for service of the originating process. In Victoria, there is provision for the court to require the defendant to be notified of an application to renew the originating process: Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Page 14 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction r 5.12(4). In Tasmania, it has been held that applications to renew the writ should ordinarily be made on notice to the defendant: Varga v Mandapati [2014] TASSC 25 at [18]–[19],[21]–[24]

per Holt AsJ.

83 See, for example, Babcock and Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [54] , where Margaret Wilson J identified three routes by which an order renewing a claim might be set aside; see Agricultural and Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [58] 84 Taylor v Taylor (1979) 143 CLR 1 at 16 12 VR 639; [2005]VSCA 213 at [20]

.

per Mason J; Savcor Pty Ltd v Cathodic Protection International APS (2005) per Gillard AJA (Ormiston and Buchanan JJA agreeing).

85 Federal Court Rules 2011 (Cth) r 39.05(a); Court Procedures Rules 2006 (ACT) r 1613(2)(a); Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b); Supreme Court Rules (NT) r 46.08; Uniform Civil Procedure Rules 1999 (Qld) r 667(2)(a); Supreme Court Rules 2000 (Tas) r 530(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 46.08; Rules of the Supreme Court 1971 (WA) O 58 r 23. 86 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [21] per Gillard AJA (Ormiston and Buchanan JJA agreeing). Federal Court Rules 2011 (Cth) r 13.01; Court Procedures Rules 2006 (ACT) r 40, and see also r 6504 where service is effected outside Australia; Uniform Civil Procedure Rules 2005 (NSW) r 12.11; Supreme Court Rules (NT) r 8.09;Uniform Civil Procedure Rules 1999 (Qld) r 16, and see also r 126 where service is effected outside Australia; Supreme Court Civil Rules 2006 (SA) r 100(2)(b)(ii) and see also r 12; Supreme Court (General Civil Procedure) Rules 2015(Vic) r 8.09, and see also r 7.04 where service is effected outside Australia; Rules of the Supreme Court 1971 (WA) O 12 r 7.

6.41 In most jurisdictions, such an application will be determined at a hearing de novo; that is, a ‘re-hearing of the whole application’, at which the defendant may

Page 241 put evidence and submissions to the court.87 At the rehearing, as at the original hearing, the plaintiff bears the onus of showing that the orders ought to have been made.88

87 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 at 33 Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [21]

per Wilcox J; Savcor Pty Ltd v Cathodic per Gillard AJA (Ormiston and Buchanan

JJA agreeing); Alstom Ltd v Sirakas [2010] NSWSC 669 at [35] per Palmer J; Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137; [2011] FCA 938 at [198],[200] per Lander J; Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (No 4) (2012) 298 ALR 251; [2012] FCA 1323 at [40]

per Lander J.

88 Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [31] per Williams J (Davies and Pincus JJA agreeing); Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (2011)283 ALR 137; [2011] FCA 938 at [198]

per Lander J; Australian Competition and Consumer Commission v

Prysmian Cavi E Sistemi Energia SRL (No 4) (2012) 298 ALR 251; [2012] FCA 1323 at [40] McIntosh v Maitland [2016] QSC 203 at [4]

6.42

per Jackson J.

per Lander J;

Page 15 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction In Western Australia, it is currently unsettled whether the rehearing takes the form of a hearing de novo. The Full Court in Bell Group NV (in liq) v Aspinall ,89 which concerned an application to set aside orders extending the time for service, held that it was necessary for the party seeking to have the order set aside to lead further evidence (beyond that adduced at the original hearing) to show that the order ought not to have been made, or that there had been a material non-disclosure. More recently, though, that view has been doubted, and it has been suggested that the rehearing ought simply to take the form of a hearing de novo (as in other jurisdictions).90 However, until Bell Group NV (in liq) v Aspinall has been reconsidered, the Court of Appeal has indicated that such applications should be considered in accordance with the principles in that case, and also on the alternative basis of a de novo hearing.91

89 (1998) 19 WAR 561

.

90 Popovic v Panagoulias [2014] WASCA 86 at [54]–[55] 91 Popovic v Panagoulias [2014] WASCA 86 at [55]

per Martin CJ and Pullin and Newnes JJA. per Martin CJ and Pullin and Newnes JJA; see, for example,

Great Southern Ltd (in liq) (recs and mgrs apptd) v Young [2014] WASC 481 at [57] Markets Ltd [2016] WASC 35 at [8]

per Allanson J; Erpen v Ig

per Sanderson M.

6.43 If there has been material non-disclosure at the time of the ex parte orders, then that alone may be reason to set aside the orders.92 In other words, the ex parte orders may be set aside by reason of the material non-disclosure; in exercising this jurisdiction, the court will not be ‘concerned whether the order should have been made on the material before the court’.93 However, in that event the later court may nevertheless re-exercise the discretion to make the order, and also has a discretion to allow the original orders to continue despite the non-disclosure.94

Page 242

92 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[8] per Ipp JA (Tobias and McColl JJA agreeing); Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013] FCA 1011 at per Katzmann J. See generally [88] disclosure.

Chapter 10, 10.87–10.89 as to setting aside ex parte orders for non-

93 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [22] (Ormiston and Buchanan JJA agreeing).

per Gillard AJA

94 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [28]–[34],[87]–[89] per Gillard AJA(Ormiston and Buchanan JJA agreeing); Commissioner of Taxation v Zeitouni (2013) 306 ALR 603; [2013]FCA 1011 at [88]–[92]

per Katzmann J.

Setting aside service outside Australia

6.44

Page 16 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction Service outside the jurisdiction is only possible when it takes place in accordance with the legislation and/or rules that enable such service.95 As was noted in Chapter 5, service outside Australia falls broadly into two categories: service which is permitted under the rules without any further leave of the court, and service which takes place pursuant to a court order granting leave to do so.

95 See Chapter 5, 5.113–5.117.

6.45 The leading case on setting aside service outside Australia is Agar v Hyde. The plaintiff had commenced proceedings in New South Wales, and had purported to effect service outside the jurisdiction without leave,pursuant to a rule (Pt 10 r 1A of the Supreme Court Rules 1970 (NSW)) which enabled service to be effected without leave in certain categories of case.96 The defendant applied to have service set aside under a rule which conferred a general discretion on the court make such an order.97 The majority held that in cases such as these:98 On an application to set aside service, or to have the Court decline to exercise jurisdiction, attention might be directed to any of a number of features of the proceeding, the claims made in it, or the parties to it, in aid of the proposition that the Court should not exercise jurisdiction. Pt 10 r 6A is cast in general terms and it would be wrong to attempt some exhaustive description of the grounds upon which the rule might be invoked. Nevertheless, it may be expected that three common bases for doing so are first, that the claims made are not claims of a kind which are described in Pt 10 r 1A, secondly, that the Court is an inappropriate forum for the trial of the proceeding and thirdly, that the claims made have insufficient prospects of success to warrant putting an overseas defendant to the time, expense and trouble of defending the claims.

96 The respondent submitted that the pleaded case fell within several of the categories of case for which service outside of the jurisdiction was permissible without leave: see Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [49] Gaudron, McHugh, Gummow and Hayne JJ.

per

97 The rule was Pt 10 r 6A of the Supreme Court Rules 1970 (NSW); the relevant parts of the rule were set out in the majority judgment at Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [41] and Hayne JJ. 98 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [55]

per Gaudron, McHugh, Gummow

per Gaudron, McHugh, Gummow and Hayne JJ.

6.46 As was noted in Chapter 5, in some jurisdictions, the rules permit service outside Australia without leave of the court in certain categories of proceedings(those categories are defined with reference to the subject matter of the proceedings). Even in those cases, however, a defendant may raise the first objection identified by the majority in Agar v Hyde: that the case does not fall within the scope of the relevant rule. In such cases, it has been said that the subject matter of the proceedings will be determined by considering the pleaded allegations, as well as any further evidence which establishes that the claim falls within one of the categories.99

Page 17 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction 99 Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; [2015] VSCA 90 at [24]–[25] Mandie JA (Beach JA and Dixon AJA agreeing).

per

6.47 In all cases, the second and third objections are available. The second objection — that the Australian court is an inappropriate forum — falls to be resolved

Page 243 by the principles of forum non conveniens, which were discussed in Chapter 5.100 Agar v Hyde turned on the third objection — that the claim had insufficient prospects of success.

100 See Chapter 5, 5.155–5.164.

6.48 The majority of the High Court observed that when the jurisdiction of the court has been ‘regularly invoked in respect of a local defendant’, the plaintiff ’s claim will not be disposed of in a summary manner ‘except in the clearest of cases’.101 Critically for present purposes, they held that where the defendant has been served outside of Australia, the same test applied.102

101 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] per Gaudron, McHugh, Gummow and Hayne JJ); see Chapter 9, 9.70–9.102 as to the circumstances in which the court will give summary judgment. 102 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [60] per Gaudron, McHugh, Gummow and Hayne JJ). See at [58]–[59] as to the reasons for rejecting the submission that a lower threshold ought to apply where the defendant is served outside the jurisdiction.

6.49 As noted above, the rule which was at issue in Agar v Hyde conferred on the court a general discretion to set aside service; the reasoning in that case has been applied to equivalent rules of court which confer a general discretion to set aside service.103 However, it must be noted that the majority emphasised that the ‘starting point’ for an application to set aside service must be the text of the rules.104 More recent authority has held that the discretion must be exercised in light of the case management principles provided for in the rules of court.105 In particular, it has been held that service of the originating process outside Australia may be set aside where ‘the resources that the Court and the parties will have to expend to determine the claim are out of all proportion to the interest at stake’.106

103 See, for example, (under the Victorian rules) Madden International Ltd v Lew Footwear Holdings Pty Ltd (2015) 50 VR 22; [2015] VSCA 90 at [25]

per Mandie JA (Beach JA and Dixon AJA agreeing); Google Inc v Trkulja (aka Trkulja)

Page 18 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction (2016) 342 ALR 504; [2016] VSCA 333 at [2]–[5] (per curiam); (under the Federal Court Rules) Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137; [2011] FCA 938 at [201]

per Lander J.

104 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [44]

per Gaudron, McHugh, Gummow and Hayne JJ.

105 Feldman v The Daily Beast Co Llc [2017] NSWSC 831 at [10]

per McCallum J.

106 Feldman v The Daily Beast Co Llc [2017] NSWSC 831 at [11],[60] [19]. See also Bleyer v Google Inc [2014] NSWSC 897

per McCallum J, and see the discussion at [12]–

per McCallum J.

6.50 It must be emphasised, though, that much will depend on the precise terms of the rules under which service outside Australia was effected. For example, it was noted in Chapter 5 that where leave is required for service outside Australia, the rules vary between jurisdictions as to what evidence the plaintiff must provide in order to be granted leave.107 A defendant who is served pursuant to an order of the court granting leave to do so may apply to have that service set aside on the basis that the plaintiff failed to establish the necessary matters.108

Page 244

107 See Chapter 5, 5.141. 108 See, for example, Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (No 4) (2012) 298 ALR 251; [2012] FCA 1323

per Lander J.

Conditional appearances

6.51 As discussed in the previous section, a defendant in any Australian jurisdiction may apply to contest the court’s jurisdiction, or to set aside service. However, there are substantial differences in the rules and practices between jurisdictions;specifically, whether it is necessary for a defendant to file an appearance before contesting the jurisdiction, and the form of such an appearance.

6.52 In some jurisdictions, a distinction is drawn between a conditional and an unconditional appearance. The significance of the distinction is that, ‘As a general rule an unconditional appearance amounts to a submission to the jurisdiction of the court and to a waiver of irregularity, e.g. in the manner of service.’109 An unconditional appearance may have the effect of waiving objections to defects in the originating process (for example, failing properly to identify the defendants),110 or irregularities in service. An unconditional appearance can even serve to waive any objection where there has been no service,111 or the originating process is stale at the time of service.112 Further, where proceedings are commenced in rem, they will also be regarded as in personam proceedings against a person who files an unconditional appearance.113

Page 19 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

109 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 539 110 Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [124] 111 Annesley v Westpac Banking Corporation [2016] VSC 323 at [43]

per Gibbs J.

per Refshauge ACJ.

per Derham AsJ.

112 Sheldon v Brown Bayley’s Steel Works Lld and Dawnays Ltd [1953] 2 QB 393 401–2 per Denning LJ.

at 400–1

113 Geraldton Port Authority v The Ship ‘Kim Heng 1888’ (No 2) [2012] FCA 353 at [32],[41]

per Singleton LJ,

per McKerracher J.

6.53 Conversely, where the rules enable a defendant to enter a conditional appearance, doing so ‘allows the defendant to challenge the jurisdiction of the Court or the validity of service or other procedure, in effect, under protest’.114 A plaintiff cannot obtain a default judgment against a defendant who has made a conditional appearance.115

114 Timbercorp Finance Pty Ltd (in liq) v Allan [2016] VSC 481 at [43]

per Derham AsJ.

115 Timbercorp Finance Pty Ltd (in liq) v Allan [2016] VSC 481 at [43]

per Derham AsJ.

Jurisdictions which provide for conditional appearances Australian Capital Territory and Queensland

6.54 In the Australian Capital Territory and Queensland, filing an unconditional notice of intention to respond will be taken to constitute submission to the jurisdiction, and will waive any objection to irregularity in the proceedings or in the service of the originating process.116 A party who wishes to challenge the jurisdiction, or assert an irregularity in the originating process or manner of service, must file a conditional notice of intention to respond.117

Page 245

116 Court Procedures Rules 2006 (ACT) r 111(2); Uniform Civil Procedure Rules 1999 (Qld) r 144(7). 117 Court Procedures Rules 2006 (ACT) r 111(1); Uniform Civil Procedure Rules 1999 (Qld) r 144(2).

6.55

Page 20 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction A defendant must then apply for an order setting aside the originating process within 28 days in the Australian Capital Territory118 or 14 days in Queensland.119 A failure to make such application within time has the effect that the notice of intention to respond becomes unconditional, and the defendant must file its defence within 14 days thereafter (in the Australian Capital Territory), or seven days (in Queensland).120

118 Court Procedures Rules 2006 (ACT) r 111(3). 119 Uniform Civil Procedure Rules 1999 (Qld) r 144(4). 120 Court Procedures Rules 2006 (ACT) r 111(4) and (5); Uniform Civil Procedure Rules 1999 (Qld) r 144(5)(a) and (7).

6.56 If such an application is unsuccessful, a defendant in the Australian Capital Territory must then file its notice of intention to respond or defence within seven days of the application being refused.121 In Queensland, the unsuccessful defendant must file its defence within seven days of the application being refused.122

121 Court Procedures Rules 2006 (ACT) r 102(1)(b), (3)(b). 122 Uniform Civil Procedure Rules 1999 (Qld) r 144(6).

Northern Territory and Victoria

6.57 In the Northern Territory and Victoria, provision is made for a conditional appearance to be entered.123 However, a conditional appearance has effect as an unconditional appearance for all purposes, unless a court otherwise orders.124 In both jurisdictions, the court may set aside the originating process or its service, or stay the proceedings, irrespective of whether the defendant has filed any appearance at all.125

123 Supreme Court Rules (NT) r 8.08; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.08. 124 Supreme Court Rules (NT) r 8.08(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.08(3). 125 Supreme Court Rules (NT) r 8.09; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.09.

Tasmania and Western Australia

6.58 In Tasmania and Western Australia, a defendant may apply for an order setting aside service of the originating process before entering an appearance.126 A defendant may also enter a conditional appearance, by which it may deny the jurisdiction of the court, or reserve the right to apply for orders setting aside the originating process.127 Such an application may be made after filing the conditional appearance.128 If no such application is made within 14 days, the conditional appearance becomes unconditional.129

Page 21 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction

Page 246

126 Supreme Court Rules 2000 (Tas) r 167; Rules of the Supreme Court 1971 (WA) O 12 r 7. 127 Supreme Court Rules 2000 (Tas) r 168(1), see also r 168(3); Rules of the Supreme Court 1971 (WA) O 12 r 6(1). 128 Supreme Court Rules 2000 (Tas) r 168(4); Rules of the Supreme Court 1971 (WA) O 12 r 6(2). 129 Supreme Court Rules 2000 (Tas) r 168(5); Rules of the Supreme Court 1971 (WA) O 12 r 6(2).

Jurisdictions which do not provide for conditional appearances Federal Court

6.59 There is no provision in the Federal Court for making an unconditional appearance. Rather, a respondent who wishes to apply to set aside service must file its application, and a supporting affidavit, at the same time as it files its notice of address for service.130

130 Federal Court Rules 2011 (Cth) r 13.01.

New South Wales

6.60 There is no provision for a conditional appearance in the Uniform Civil Procedure Rules. It has been held that where a party has purported to file a conditional appearance, it will be treated as an unconditional appearance, as there is no provision for conditional appearances in the rules.131

131 Attorney General v Chan [2011] NSWSC 1315 at [14]

per Adamson J.

6.61 In New South Wales, a party may apply for an order setting aside service of the originating process before it has filed an appearance.132 On an application to set aside service, the fact that a notice of appearance has been filed will not be determinative, but will be ‘a factor to be taken into account’ in the exercise of the discretionary power conferred on the court by the rules.133

Page 22 of 22 Chapter 6 Defendant’s Acknowledgment of Service and Challenges to Jurisdiction 132 Uniform Civil Procedure Rules 2005 (NSW) r 12.11(3). 133 Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 175 ALR 36; [2000] NSWSC 507

, especially [9]–[10] per

Bryson J; Agricultural & Rural Finance Pty Ltd v Kirk (2011) 82 ACSR 390; [2011] NSWCA 67 at [217]–[219] Tobias JA (Macfarlan JA and Sackville AJA agreeing).

per

South Australia

6.62 In South Australia, there is no provision for conditional appearances. A defendant who wishes to challenge or object to the jurisdiction of the court, or object to an irregularity in the proceedings, must raise that matter as a preliminary issue in its defence.134

134 Supreme Court Civil Rules 2006 (SA) r 100(1)(a) and (2).

End of Document

Chapter 7 Pleadings: Defining the Controversy Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 7 — Pleadings: Defining the Controversy

Chapter 7 Pleadings: Defining the Controversy Page 247 [Current to May 2018]

Introduction

7.1 Service of originating process on the defendant alerts the defendant to the fact that a claim has been commenced against it and gives it a general idea of its nature. The precise issues in dispute remain to be defined, because the defendant has yet to be informed of the exact grounds of the claim, and the plaintiff, in turn, has yet to hear the defendant’s response. Until the parties have identified the matters in dispute, they have nothing to prove or disprove and the court does not have a controversy requiring resolution. A clear and precise understanding of the issues is essential to the effective conduct of the proceedings, since it guides the parties in the preparation of their evidence and enables the court to manage the case efficiently.

Pleadings and their purpose

7.2 The process of identifying the issues in dispute is carried out by an exchange of pleadings. Pleadings are documents exchanged by the parties, in which each party sets out in concise terms the facts that are the subject of the proceedings.The key pleadings documents are the statement of claim, the defence (or defence and counterclaim) and the reply (or reply and defence to counterclaim). In these documents, the parties must set out succinctly all the material facts necessary to support that party’s case, but not the evidence by which those facts are to be proved. The purpose of this exchange is, first and foremost, to identify the issues in dispute which the court has to decide.1 Without a dispute the court has nothing to adjudicate, so defining the dispute is a prerequisite to any adjudication. By making known to the parties each other’s allegations, pleadings provide advance notice and avoid a ‘trial by ambush’ by affording all parties sufficient opportunity to prepare their response — critical to procedural fairness. As Mason CJ and Gaudron J put it:2

Page 248   The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation) [1916] HCA 81; (1916) 22 CLR 490 , per Isaacs and Rich JJ. at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

Page 2 of 59 Chapter 7 Pleadings: Defining the Controversy Secondly, pleadings establish the boundaries of what is to be argued and proved at trial and therefore what evidence must be gathered, prepared and presented.3 Thirdly, pleadings enable the court to perform its case management function including setting the scope of discovery, deciding if matters may be disposed of summarily, managing the use of expert witnesses and gauging trial duration and necessary preparation time to schedule case management conferences and trial dates.4 Finally, pleadings allow the parties to assess the strength of each other’s case and therefore help to facilitate settlement.5

1

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664 Dawson JJ.

at [6] per Murphy, Wilson, Brennan, Deane and

2

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; [1990] HCA 11 at [18] per Mason CJ and Gaudron J.

3

Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214; [1977] HCA 11 at [3]

4

See Justice A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ (FCA) [2015] FedJSchol 23 at [42].

5

Carpathian Resources Ltd v Geological and Corporate Management Pty Ltd [2005] WASCA 104 at [30] Roberts-Smith JA.

per Gibbs J.

per

The order of pleadings

7.3 While the names of the different pleadings differ between the different Australian courts, the general order of pleadings is as follows: •

First, the plaintiff files and serves on each defendant a ‘statement of claim’ setting out the material facts necessary to establish its cause(s) of action.

•

Any defendant who wishes to resist the claim must respond by filing and serving the defendant’s own pleading, the ‘defence’, which responds to each allegation of material fact and presents any material facts on which the defendant relies to establish its defence. If a defendant also has a claim against the plaintiff, the defendant may include it in the pleading, in which case it becomes a ‘defence and counterclaim’.

•

In most cases, the exchange of the statement of claim and defence should suffice to identify and define the issues. Occasionally, however, the plaintiff may find it necessary to file and serve a ‘reply’ to the defence to make admissions,put forward an assertion in response to something contained in the defence or to cut down the issues.

•

If the defendant has counterclaimed, the plaintiff may file and serve a ‘reply and defence to counterclaim’ or simply a ‘defence to counterclaim’.

•

A plaintiff who wishes to defend a counterclaim may, but need not, file and serve a ‘reply to counterclaim’.

•

Any further pleadings beyond a reply require the leave of the court.

Page 249

7.4 All pleadings are court documents and must, therefore, be in the prescribed form applicable in the particular court and must be filed with the court in accordance with the requirements of the particular court. It would serve little to detail here the minutiae of the formal requirements of pleadings for each Australian court, particularly given these are regularly changed. As a practical matter, it is always wise to check to ensure that pleadings conform to the

Page 3 of 59 Chapter 7 Pleadings: Defining the Controversy latest forms and are filed in accordance with the up-to-date filing requirements of the relevant court.

Particulars

7.5 Pleadings must also include the necessary particulars of any fact or matter pleaded. Particulars are ordinarily set out below each numbered paragraph of the pleading or in documents attached to the pleadings. They provide further explanatory detail around the alleged fact or matter contained in the relevant numbered paragraph of the pleadings. For example, it may be alleged as a material fact in the pleadings that the defendant was negligent. The particulars detail how the plaintiff alleges the defendant was negligent. For example:6 … 6

As the plaintiff was driving along King Street past the intersection of King Street and Queen Street, the defendant’s car collided with the side of the plaintiff ’s car.

7

The collision was caused by the negligence of the defendant. Particulars of negligence (a) The defendant failed to stop at the stop sign at the intersection. (b) The defendant failed to break in time to avoid the collision. (c) The defendant failed to control their vehicle to avoid the collision. (d) The defendant failed to keep proper look out. (e) The defendant was driving at an unsafe speed in the circumstances.

…

While particulars accompany pleadings and may be included in the same document, they are distinct from pleadings and perform a different function. Whereas pleadings define the issues at a general level, particulars serve to limit the generality of pleadings by setting out the specific details of the allegations. The role of particulars is to provide specificity to the broad assertions of the material facts included in the pleadings.7 As noted in the Federal Court Rules 2011 (Cth):8

Page 250   The object of particulars is to limit the generality of the pleadings by: (a)

informing an opposing party of the nature of the case the party has to meet; and

(b)

preventing an opposing party being taken by surprise at trial; and

(c)

enabling the opposing party to collect whatever evidence is necessary and available.

Historically, the common law system of pleadings has struggled to achieve these goals:9 … the old common law … was based, with rigorous logic, upon the system of litigation by antagonists. By virtue of the underlying principles of that system, it was the treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial (or contest) in the presence of the judicial umpire … As Wigmore has put it (Evidence, 3rd ed. (1940),vol. VI, page 376) the common law

Page 4 of 59 Chapter 7 Pleadings: Defining the Controversy regarded ‘the concealment of one’s evidential resources and the preservation of the opponent’s defenceless ignorance as a fair and irreproachable accompaniment of the game of litigation’.

Recent cases emphasising the overriding objective hopefully signal that the days of burying the true issues amidst confusing or prolix pleadings are behind us:10 As this Court has said previously the days of trial by ambush are gone. The ‘cards on the table’ approach in litigation is not only to ensure that the real issues in dispute are litigated but it is also to assist in the just,quick and cheap disposal of the proceedings.

6

Example adapted from New South Wales Government Department of Justice, Sample Statement of Claim – Car Accidents – Plaintiff (Form 3B), 15 May 2017 .

7

Judicial Commission of New South Wales, Civil Trials Bench Book, Update 33, March 2017, [2-4900].

8

Federal Court Rules 2011 (Cth) r 16.41 Note 1; see also Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 at 186,188–9 . For the specific requirements around particulars in general civil claims (as opposed to requirements in specific cases), see Federal Court Rules 2011 (Cth) r 16.41; Court Procedures Rules 2006 (ACT) Div 2.6.4; Uniform Civil Procedures Rules 2005 (NSW) Pt 15; Supreme Court Rules (NT) r 13.10; Local Court (Civil Jurisdiction) Rules (NT) r 5.13; Uniform Civil Procedure Rules 1999 (Qld) Ch 6 Pt 3; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10; County Court Civil Procedure Rules 2008 (Vic) r 13.10; Rules of the Supreme Court 1971 (WA) O 20 r 13.

9

Donaldson v Harris (1973) 4 SASR 299 at 302

per Wells J.

10 Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61

at per Bergin CJ in Eq (with whom Ward JA and Tobias AJA

agreed), citing Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80

; Glover v

.

The evolution of the law of pleadings

7.6 Our current system of pleadings has its origins in the Judicature Acts of the late nineteenth century.11 Historically, the common law courts heard and determined actions only according to very strict forms of action. The system generally involved pleading of legal conclusions rather than detail of the facts in issue sometimes leaving the reader with ‘no precise knowledge of the plaintiff’s demand or indeed of what the suit [was] about’.12 By contrast, the courts of equity sought to do justice in all the circumstances of the case, leading to a system of pleading that was largely unrestrained and which produced pleadings that were excessively discursive and resulted in an obfuscation rather than elucidation of the issues in dispute.13 When the Judicature Acts procedurally fused the courts of common law and equity beginning in England and Wales in the 1870s, the system of fact-based pleadings, in substantially the same form we know it today, was born.14

Page 251

11 Supreme Court of Judicature Act 1873 (UK) and Supreme Court of Judicature Act 1875 (UK); see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [11]–[15]

per French CJ.

Page 5 of 59 Chapter 7 Pleadings: Defining the Controversy 12 F G Brennan, ‘Written Pleadings’ (1975) 12 Western Australian Law Review 33 at 34; quoting Lord Brougham, Speeches of Lord Brougham (1841) Vol 1, p 569. 13 F G Brennan, ‘Written Pleadings’ (1975) 12 Western Australian Law Review 33 at 34. 14 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 at [9]–[17] French CJ.

per

7.7 In the past, pleadings could all too easily provide fertile ground for technical and expensive procedural skirmishes due, in part, to the accumulation of a large body of technical case law. A considerable amount of time and effort could be spent drafting and amending pleadings with no guarantee that they would greatly contribute to the clarification of the issues. Squabbles over pleadings could also be used as a tactic in litigation to delay the adjudication of the substantive action.Saville LJ observed, before the Woolf Reforms and the introduction of the Civil Procedure Rules in England, that:15 The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered, when in truth each party knows perfectly well what case is made by the other and is able properly to prepare to deal with it. Pleadings are not a game to be played at the expense of the litigants, nor an end in themselves, but a means to the end, and that end is to give each party a fair hearing.

15 British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 72 BLR 26 at 34C

per Saville LJ.

7.8 The aim of recent reform to the law of pleadings has been to avoid technical requirements and to make the process simpler and better suited to its purposes. The rules and the courts in Australian jurisdictions have started to restrict the ability of parties to initiate disputes over pleadings, for example, by prohibiting a party from objecting to another party’s pleadings on the grounds of form (rather than substance).16 The rules in some jurisdictions require that a party ask the other party for further particulars of the other party’s claim or defence before seeking an order to that effect from the court.17 It is advisable to follow this course, whether or not the rules require it. If a dispute over pleadings does require court attention, the court should seek to use the opportunity of a hearing to try to get to the root of the parties’dispute, to identify the issues and to give adequate management directions so that any further disputes over pleadings can be avoided.18 In some circumstances, such as Fast Track proceedings in the Federal Court, formal pleadings have been done away with altogether and replaced with shorter, less formal, case summaries or agreed lists of issues. While the reforms so far have been useful, the discussion at the conclusion of this chapter will advocate that further reform of the law of pleadings is desirable.

Page 252

16 See Court Procedures Rules 2006 (ACT) r 410; Supreme Court Rules 2000 (Tas) r 231.

Page 6 of 59 Chapter 7 Pleadings: Defining the Controversy 17 See Supreme Court Rules (NT) r 13.11(3); Local Court (Civil Jurisdiction) Rules (NT) rr 10.01 and 10.04; Supreme Court Rules 2000(Tas) r 253(2); Magistrates Court (Civil Division) Rules 1998 (Tas) r 46(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.11(3); County Court Civil Procedure Rules 2008 (Vic) r 13.11(3); Magistrates’ Court General Civil Procedure Rules 2010 (Vic) rr 13.05 and 13.06; Rules of the Supreme Court 1971 (WA) O 20 r 13(6). 18 McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775; [1999] EWCA Civ 1464 at 793

per Lord Woolf MR.

Simplicity of pleadings

7.9 Pleadings should be as simple and as brief as the nature of the case allows. As it is now common in most civil litigation for the parties to have attempted to resolve their dispute prior to issuing proceedings, the parties will often have become sufficiently familiar with each other’s position and with the relevant evidence to be able to articulate their own case with relative simplicity. This reduces the need for excessive detail and particularity in pleadings. The need for particularity is further diminished where key documents and witness statements have already been provided to the other party or are to be provided at about the same time as the pleadings.19 In pleadings, a party needs to identify the issues by making clear the nature of its case. To this end, the parties must avoid overburdening their pleadings with excessive detail.

19 McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775; [1999] EWCA Civ 1464 at [4]

per Lord Woolf MR.

7.10 A word of warning is called for at this point, for while simplicity of pleadings may be a virtue in some cases, it is not always possible nor invariably desirable. Over-complicated assertions in a simple personal injuries case will not assist the understanding of the issues. But in a complex commercial action involving numerous issues of fact and of law, precise and detailed pleadings are crucial to the clarification of the issues and to an effective and economic management of the case.20 Without a clear and accurate definition of the issues in such cases, it would be impossible to carry out a focused and efficient discovery process, nor would one know what witness statements to produce and how much detail needs to be provided by the witnesses. Furthermore, generality and lack of precision in pleadings may necessitate late amendments, lead to unnecessary disputes and cause waste of resources if the dispute is of some complexity. It is therefore suggested that the economy and simplicity in pleadings needs to be practised with an eye to proportionality.

20 See I Grainger and M Fealy, The Civil Procedure Rules in Action, 2nd ed, Cavendish Publishing, London, Ch 11 Part B(iii).

Outline of the chapter

7.11 The following parts of this chapter further discuss each of the key pleadings documents generally filed in civil court proceedings. The chapter then examines the Australian jurisdictions to take a more detailed look at the specific requirements in each jurisdiction. The chapter then proceeds to consider amendment of pleadings and verification of pleadings. Finally, this chapter looks at the future of pleadings in civil procedure and advocates for the continued

Page 7 of 59 Chapter 7 Pleadings: Defining the Controversy shift away from formal pleadings towards less formal alternatives such as concise summaries of a party’s case and agreed issues lists.

Statements of claim Overview

7.12 The first pleading in any matter is the statement of claim. As outlined in Chapter 4, depending on the procedure in the relevant jurisdiction, the statement of claim is filed and served as part of the originating process or must be filed and served

Page 253 within a limited period after the defendant enters an appearance. The statement of claim must set out the foundation of the claim; that is,the facts that entitle the plaintiff to the remedy that the plaintiff is seeking to obtain against the defendant.

7.13 While the precise requirements vary depending on the jurisdiction and court, broadly, all pleadings, including statements of claim, must:21 1. state the material facts on which the party relies to establish its case, but not the evidence by which those facts are to be proved; (a) These material facts may have arisen at any time (whether before or after the commencement of the proceedings). (b) For spoken words or documents, a pleading may state the effect of the relevant words, but must not state the precise words unless they are themselves material. 2. state the provisions of any statute on which the party relies; 3. state the remedy the party is seeking (including the liquidated amount of any damages sought); 4. include any fact that might take another party to the proceedings by surprise; 5. be set out as a series of consecutively numbered paragraphs each dealing with a separate alleged fact; and 6. be as brief as the nature of the case allows. Pleadings may generally also include points or conclusions of law if the party also pleads material facts in support of that conclusion or point.22 A party may, but is

Page 254 not required, to plead facts that the law presumes to be true or facts where the onus of disproving the fact is on the opposite party.23 A party must, however, plead those facts where necessary to meet a specific denial by another party.24 The rules state that certain conditions precedent necessary for a party’s case are taken to be implied in the party’s pleadings.25 For example, it is usually taken to be implied in a pleading alleging breach of contract by the defendant, that the plaintiff was at all material times ready and willing to perform its obligations under that contract (a condition precedent of a claim for specific performance).

Page 8 of 59 Chapter 7 Pleadings: Defining the Controversy 21 The general requirements for pleadings in each Australian court are: HCA: High Court Rules 2004 (Cth) Pt 27; Federal Court: Federal Court Rules 2011 (Cth) Pt 16; Federal Circuit Court: in general civil matters where pleadings are required and not the usual affidavits, the Federal Circuit Court of Australia Act 1999 (Cth) s 43(2)(b) states that the Federal Court Rules 2011 (Cth) will apply; ACT courts: Court Procedures Rules 2006 (ACT) Div 2.6.2; NSW courts: Uniform Civil Procedure Rules 2005 (NSW) Pt 14 Div 3; NT Supreme Court: Supreme Court Rules (NT) O 13; NT Local Court: Local Court (Civil Jurisdiction) Rules (NT) Pt 5 Div 3; Qld courts: Uniform Civil Procedure Rules 1999 (Qld) Ch 6; SA Supreme Court: Supreme Court Civil Rules 2006 (SA) Ch 5 Pt 2; SA District Court: District Court Civil Rules 2006 (SA) Ch 5 Pt 2; SA Magistrates Court: in minor civil actions short form pleading is permitted under Magistrates Court (Civil) Rules 2013 (SA) r 24(1)(a), otherwise the rules follow the Supreme Court Civil Rules 2006; Tas Supreme Court: Supreme Court Rules 2000 (Tas) Div 17; Tas Magistrates Court: Magistrates Court (Civil Division)Rules 1998 (Tas) r 44(1) states that the rules are the same as in the Supreme Court Rules 2000 (Tas) except where otherwise specified and a different process applies to minor civil claims; Vic Supreme Court: Supreme Court (General Civil Procedure)Rules 2015 (Vic) O 13; Vic County Court: County Court Civil Procedure Rules 2008 (Vic) O 13; Vic Magistrates’ Court: Magistrates’ Court General Civil Procedure Rules 2010 (Vic) O 13; WA Supreme Court: Rules of the Supreme Court 1971 (WA) O 20; WA District Court: District Court Rules 2005 (WA) r 6 applies the Rules of the Supreme Court 1971 (WA) apply except to the extent otherwise provided; WA Magistrates Court: Magistrates Court (Civil Proceedings) Rules 2005 (WA)r 7 provides for a much less formal statement of claim and the rest of the pleadings process is similarly less formal. 22 Federal Court Rules 2011 (Cth) r 16.02(3); Court Procedures Rules 2006 (ACT) r 406(2); Uniform Civil Procedure Rules 2005 (NSW) r 14.19; Supreme Court Rules (NT) r 13.02(2); Uniform Civil Procedure Rules 1999 (Qld) r 149(2); Supreme Court Civil Rules 2006 (SA) rr 99(1)(a) and (b) and 100(1)(d) (requires the legal basis to be pleaded); District Court Civil Rules 2006 (SA) rr 99(1)(a) and (b) and 100(1)(d) (requires the legal basis to be pleaded); Supreme Court Rules 2000 (Tas) r 249; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.02(2); County Court Civil Procedure Rules 2008 (Vic)r 13.02(2); Rules of the Supreme Court 1971 (WA) O 20 r 12; Magistrates Court (Civil Proceedings) Rules 2005 (WA) rr 7A(3)(b) and 10(3)(b) (requires the legal basis to be pleaded). 23 Federal Court Rules 2011 (Cth) r 16.03(2) (the rule only refers to not having to plead matters where the burden of proof is not on the pleading party); Court Procedures Rules 2006 (ACT) r 409(1); Uniform Civil Procedure Rules 2005 (NSW) r 14.10; Supreme Court Rules (NT) r 13.04; Uniform Civil Procedure Rules 1999 (Qld) r 151(1); Supreme Court Rules 2000 (Tas) r 227(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.04; County Court Civil Procedure Rules 2008 (Vic) r 13.04; Rules of the Supreme Court 1971 (WA) O 20 r 8(3). Note: the rule is not included in the South Australian rules. 24 Federal Court Rules 2011 (Cth) r 16.08(c) (this does not explicitly set out the exception as in the rules in other courts, but it would require any assertion by the opposing party to be addressed); Court Procedures Rules 2006 (ACT) r 409(2); Uniform Civil Procedure Rules 2005 (NSW) r 14.10 ; Supreme Court Rules (NT) r 13.04; Uniform Civil Procedure Rules 1999 (Qld) r 151(2); Supreme Court Rules 2000 (Tas) r 227(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.04; County Court Civil Procedure Rules 2008 (Vic) r 13.04; Rules of the Supreme Court 1971 (WA) O 20 r 8(3). 25 Federal Court Rules 2011 (Cth) r 16.05; Court Procedures Rules 2006 (ACT) r 412; Uniform Civil Procedure Rules 2005 (NSW) r 14.11; Supreme Court Rules (NT) r 13.05; Uniform Civil Procedure Rules 1999 (Qld) r 153(1); Supreme Court Civil Rules 2006 (SA) r 98(8); District Court Civil Rules 2006 (SA) r 98(8); Supreme Court Rules 2000 (Tas) r 236(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.05; County Court Civil Procedure Rules 2008 (Vic) r 13.05; Rules of the Supreme Court 1971 (WA) O 20 r 8(4).

7.14 In addition to the requirement that pleadings should not contain evidence, a number of other important restrictions apply. Pleadings must not contain inconsistent allegations of fact or claims except where pleaded in the alternative.26 Further, pleadings must not:27

Page 255   •

contain scandalous, frivolous or vexatious material;

•

be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay in the proceeding;

•

fail to disclose a reasonable cause of action or defence; or

•

otherwise be an abuse of process of the court.

Page 9 of 59 Chapter 7 Pleadings: Defining the Controversy

26 Federal Court Rules 2011 (Cth) r 16.06; Court Procedures Rules 2006 (ACT) r 414(2); Uniform Civil Procedure Rules 2005 (NSW) r 14.18; Supreme Court Rules (NT) r 13.09; Local Court (Civil Jurisdiction) Rules (NT) r 5.12; Uniform Civil Procedure Rules 1999 (Qld) r 154; Supreme Court Civil Rules 2006 (SA) rr 98(6)and (7); District Court Civil Rules 2006 (SA) rr 98(6) and(7); Supreme Court Rules 2000 (Tas) r 230; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.09; County Court Civil Procedure Rules 2008 (Vic) r 13.09; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 13.04;Rules of the Supreme Court 1971 (WA) O 20 r 11. As discussed further at 7.80–7.85, verification requirements in certain jurisdictions may require the pleading party to assert a belief that the allegations of fact pleaded are true, which would preclude the possibility of pleading allegations of fact that are truly inconsistent. 27 Federal Court Rules 2011 (Cth) r 16.02(2); Court Procedures Rules 2006 (ACT) r 425(1); Uniform Civil Procedure Rules 2005 (NSW) rr 4.15, 13.4(1) and 14.28; Supreme Court Rules (NT) r 23.02; Local Court (Civil Jurisdiction)Rules (NT) r 28.02; Uniform Civil Procedure Rules 1999 (Qld) r 162; Supreme Court Civil Rules 2006 (SA) r 98(2); District Court Civil Rules 2006 (SA) r 98(2); Magistrates Court (Civil) Rules 2013 (SA) r 86; Supreme Court Rules 2000 (Tas) rr 82A, 258 and 259; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 23.02; County Court Civil Procedure Rules 2008 (Vic) r 23.02; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 23.02; Rules of the Supreme Court 1971 (WA) O 20 r 19.

7.15 Finally, court rules require certain matters be specifically pleaded and particulars of those matters must be provided. In all cases, anything that might take another party to the proceedings by surprise must be pleaded and necessary particulars must be provided.28 The rules also generally require parties to specifically plead, and provide particulars of, allegations of fraud, misrepresentation, conditions of mind such as mental impairment or disability or a fraudulent intention and indicate the amounts of damages claimed, including exemplary or punitive damages.29 The precise requirements of different Australian civil courts are detailed later in this chapter. In addition to those matters specifically required by the rules to be pleaded, parties should plead all matters that the pleading parties bear the onus of proving.30 These would include contributory negligence, a failure to mitigate damages, allegations of fundamental breach and foreign law.31 In building, technical or other cases involving

Page 256 several items in dispute relating to liability or amount, parties may be required to file a ‘Scott Schedule’.32 A ‘Scott Schedule’ is a document summarising the parties’ claims and defences, set out in columns to identify where the parties agree and disagree.33

28 Federal Court Rules 2011 (Cth) rr 16.03(1)(b), 16.08(b) and 16.41 Note 1 para (b); Court Procedures Rules 2006 (ACT) rr 406(1)(c) and 430(1)(a); Uniform Civil Procedure Rules 2005 (NSW) rr 14.14 and 15.1(1); Supreme Court Rules(NT) rr 13.07(1)(b) (for pleadings after the statement of claim) and 13.10(2); Uniform Civil Procedure Rules 1999 (Qld) rr 149(1)(c), 150(4)(c) and 157(a); Supreme Court Civil Rules 2006 (SA) r 98(2)(d); District Court Civil Rules 2006 (SA) r 98(2)(d); Supreme Court Rules 2000 (Tas) rr 151(b) and 227(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 13.07(1)(b) and 13.10(2)(c); County Court Civil Procedure Rules 2008 (Vic) rr 13.07(1)(b) and 13.10(2)(c); Magistrates’Court General Civil Procedure Rules 2010 (Vic) rr 13.02(5)(b) and 13.03(1)(b) (for the defence and reply); Rules of the Supreme Court 1971 (WA) O 20 r 9(1)(b) (for pleadings after the statement of claim). 29 Federal Court Rules 2011 (Cth) r 16.42; Court Procedures Rules 2006 (ACT) rr 407(1)(h) and (j) and 430(1)(c); Uniform Civil Procedure Rules 2005 (NSW) r 15.3; Supreme Court Rules (NT) r 13.10(3); Local Court (Civil Jurisdiction) Rules (NT) rr 7.01(2)(e)(ii) and 8.03(1)(a); Uniform Civil Procedure Rules 1999 (Qld) rr 150(1)(f), (i) and (k) and 157(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10(3); County Court Civil Procedure Rules 2008 (Vic) r 13.10(3); Rules of the Supreme Court 1971 (WA) O 20 r 13(1). The rules in South Australia do not include this requirement explicitly. The rules in Tasmania provide that it is sufficient to allege malice, fraudulent intention, knowledge or another state of mind as a fact without setting out the circumstances from which it is to be inferred (Supreme Court Rules 2000 (Tas) r 238). 30 30 Justice A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ (FCA) [2015] FedJSchol 23 at [69].

Page 10 of 59 Chapter 7 Pleadings: Defining the Controversy 31 Justice A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ (FCA) [2015] FedJSchol 23 at [69]; citing for a failure to mitigate damages: Plato Films Ltd v Speidel [1961] AC 1090 at 1104–5

; citing for fundamental breach: Hunt & Winterbotham (West of England) Ltd v BRS (Parcels) Ltd [1962]

1 QB 617

; and citing for foreign law: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491;

[2002] HCA 10 at [70]–[72]

.

32 See, for example, Court Procedures Rules 2006 (ACT) r 431; Uniform Civil Procedure Rules 2005 (NSW) r 15.2; Supreme Court Rules 2000 (Tas) Div 18; District Court Rules 2005 (WA) r 45D. 33 Note to Court Procedures Rules 2006 (ACT) r 431(3).

Key observations

7.16 There is no need to comment in detail on the requirements outlined above except to draw attention to some of the more important aspects. The claimant must include in the statement of claim all facts which establish a complete cause of action.The test is whether the facts relied upon would, if proved, entitle the claimant to a remedy.34 A claim for damages for breach of contract, for example, must allege a contract, a breach of that contract and a resulting loss. Similarly, a claimant who seeks damages for negligence must state the facts that give rise to a duty of care,establish a breach of that duty, and identify the injury caused by that breach of duty. There is normally no need to set out the law giving rise to the remedy claimed; it hardly needs stating that loans must be repaid or that persons who negligently breach a duty of care to another must pay for the damage caused by that negligence. The exception is for claims arising under statute, in which case, the specific provision relied on should be identified in the statement of claim.35

34 Cooke v Gill (1873) LR 8 CP 107

at 116

per Brett J, quoted approvingly in Wardley Australia Ltd v Western

Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55 at [40] Excavations Pty Ltd (1984) 154 CLR 234 at 425; [1984] HCA 17 (2006) 66 NSWLR 400 at 413–14; [2006] NSWCA 164 at [68] Excavations Pty Ltd (1984) 154 CLR 234 at 245; [1984] HCA 17 Holdings Pty Ltd v Mallesons Stephen Jaques [2017] QSC 251 at [15]

per Toohey J; and in Do Carmo v Ford

per Wilson J. See also Amaca Pty Ltd v Cremer per McColl JA, quoting Do Carmo v Ford per Wilson J, quoted approvingly in Lanai Unit per Jackson J.

35 Federal Court Rules 2011 (Cth) r 16.02(1)(e); Court Procedures Rules 2006 (ACT) r 406(1)(e); Supreme Court Rules (NT) r 13.02(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(e); Supreme Court Civil Rules 2006 (SA) rr 99(1)(b) and 100(1)(d); District Court Civil Rules 2006 (SA) rr 99(1)(b) and 100(1)(d); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.02(1)(b); County Court Civil Procedure Rules 2008 (Vic) r 13.02(1)(b);Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 13.01(1)(c); Rules of the Supreme Court 1971 (WA) O 20 r 9(1)(b) (for pleadings after the statement of claim). This is not explicitly stated in the rules in New South Wales, Tasmania nor Western Australia.

7.17 All pleadings should be concise. A statement of claim, for instance, should succinctly establish the foundation of the claim by setting out the facts that entitle the claimant to the remedy sought. Pleadings set out material facts, but not the evidence on which the relevant party relies to prove those facts. While the Civil Procedure Rules in England removed this rule, permitting the inclusion of evidence in pleadings, the rule remains in Australia.36 The rule was abandoned in England to encourage more fulsome disclosure of information early on; in particular, by attaching witness statements and other important documentary evidence to the pleadings.37 Early disclosure helps to

Page 257

Page 11 of 59 Chapter 7 Pleadings: Defining the Controversy elucidate the strength of each party’s case and to facilitate settlement. The retention of the rule against including evidence in pleadings in Australia should not, however, detract from this goal. In particular, pleadings may include points of law supporting a claim or defence. Particulars in pleadings should also provide useful and clarifying detail on the material facts alleged in those pleadings. Finally, the overarching obligations on the parties and their lawyers, for example, to cooperate, minimise delay and to direct their efforts to resolving the dispute,38 would require early disclosure of information and evidence whenever practicable.

36 Of course, with the exception of proceedings where formal pleadings are not required or are done away with by the court. 37 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report) 1995, Ch 20, [31]–[32]. 38 See, for example, the explicit overarching obligations on parties and lawyers in Pt 2.3 of the Civil Procedure Act 2010 (Vic) to disclose the existence of critical documents and also to use reasonable endeavours to resolve the dispute, to cooperate and to minimise delay.

Some guidance

7.18 Justice Anna Katzmann of the Federal Court and Additional Judge of the Supreme Court of the Australian Capital Territory, articulates some useful additional advice for pleadings’ drafters:39 First, take nothing for granted. Before drafting any document, read the relevant rules and practice notes and before finalising it, make sure that it complies with what is required. Even if you think you know the relevant rules or are familiar with the practice notice, they might have been amended since you last had occasion to look at them. If you have never picked up a pleading textbook starting with Bullen & Leake (now Bullen & Leake & Jacob’s Precedents of Pleadings),you had better start now. Second, be mindful of your professional obligations. You should only plead an allegation which has reasonable prospects of success. If you do not, not only do you leave your client vulnerable to a strike out application or, worse still, an application for summary judgment, but costs penalties are likely to be imposed and you may have to pay them personally. [It may also] amount to unsatisfactory professional conduct or professional misconduct. Furthermore, you must make sure that the allegations you plead are reasonably justified by the available material, are appropriate for the robust advancement of the client’s case on the merits, and are not made principally in order to harass or embarrass a person or to gain some collateral advantage. You may not allege any matter of fact amounting to criminality, fraud or other serious misconduct unless the available material by which the allegation could be supported provides a proper basis for it, the client is informed of the seriousness of such an allegation and the possible consequences if it is not made out AND yet, knowing that, has given you instructions to make it.

39 Justice A Katzmann, ‘Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia’ (FCA) [2015] FedJSchol 23 at [32]–[35] (emphasis in original and footnotes omitted).One point to note is that while a pleadings precedents textbook is a useful starting point, it is of the utmost importance that pleadings be carefully tailored to the case at hand.

Particulars

Page 12 of 59 Chapter 7 Pleadings: Defining the Controversy

7.19 As outlined in the introduction to this chapter, pleadings define the issues at a general level whereas particulars limit the generality of pleadings by providing specific

Page 258 details of what is alleged. For example, where a paragraph of a statement of claim may simply allege that the defendant is indebted to the plaintiff in the sum of $150,000, the particulars provide detail as to how that sum was arrived at. While different rules in the different Australian jurisdictions set out certain allegations for which a pleading party must provide particulars,40 in all cases particulars must be sufficient to: (a) enable the other parties to plead so that they can meet the allegations against them; and (b) avoid surprise at trial.41

40 These are outlined later in this chapter at 7.38–7.64. 41 See, for example, Federal Court Rules 2011 (Cth) r 16.41 Note 1; see also Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 at 186,188–9 . For the specific requirements around particulars in general civil claims (as opposed to requirements in specific cases), see Federal Court Rules 2011 (Cth) r 16.41; Court Procedures Rules 2006 (ACT) Div 2.6.4; Uniform Civil Procedure Rules 2005 (NSW) Pt 15; Supreme Court Rules (NT) r 13.10; Local Court (Civil Jurisdiction) Rules (NT) r 5.13; Uniform Civil Procedure Rules 1999 (Qld) Ch 6 Pt 3; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10; County Court Civil Procedure Rules 2008 (Vic) r 13.10; Rules of the Supreme Court 1971 (WA) O 20 r 13.

7.20 When drafting pleadings, a balance must clearly be struck between the need to set out the detail of a claim or defence in a comprehensive and informative way, on the one hand, and the need for clarity and brevity on the other.42 Particulars must be stated clearly and economically, but with sufficient detail to enable the defendant to assess its position. The particularity required is dependent on the nature of case and the ‘good sense of the thing’.43 The fact that the evidence does not accord to the particulars is not fatal to that party’s case.44 Nor is it fatal that evidence falls outside the particulars pleaded, provided that the judge does not consider the evidence to unfairly take the other party by surprise.45 Accordingly, the particulars should clearly and frankly disclose the party’s case, but need not comprehensively reference all evidence the party plans to adduce in support of the pleaded facts.46

42 The case law highlights this balance — see, in particular, Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

at [48]

per Lord Hope, quoted approvingly in Pharm-a-Care Laboratories Pty Ltd v Commonwealth

(No 3) [2010] FCA 361 at [69] [2016] VSC 559 at [33]

per Flick J; in turn quoted in Finance & Guarantee Company Pty Ltd v Auswild(No 2)

per Sifris J.

43 American Flange v Rheem Australia [1963] NSWR 1121 at 1126 44 Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70 HCA 13

.

; Miller v Cameron (1936) 54 CLR 572 at 576–7; [1936]

.

45 Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126 at 133 per Hunt J. 46 Indeed, as Lord Woolf observed, following the introduction of the CPRs and pre-action protocols in England where witness statements are exchanged early in the process the need for extensive particulars is significantly reduced as the detail of the case the other party must meet will usually be obvious (McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 792J–793A

per Lord Woolf MR, quoted in Three Rivers District Council v Bank of England (No 3) [2003]

Page 13 of 59 Chapter 7 Pleadings: Defining the Controversy 2 AC 1

at [50]

per Lord Hope; in turn quoted in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of

Australia (No 3) [2010] FCA 361 at [69]

per Flick J).

7.21 Two important principles concerning particulars must be borne in mind. First, particulars do not serve to fill gaps in pleadings by including material facts that must be set out in the pleadings.47 All the material facts necessary to establish

Page 259 a cause of action or defence must be contained in the pleadings rather than simply in the particulars. Secondly, a party need not, and should not, plead to particulars.48 A party’s pleadings in response to earlier pleadings need only address the allegations of fact in the pleadings and there is no need to admit, deny or not admit any assertion included in the particulars.

47 H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; [1979] FCA 74 at [13]–[23] ; Federal Court Rules 2011 (Cth) r 16.41 Note 2. While this clearly remains the rule, the courts seem to be becoming less strict about the clear distinction between pleadings and particulars (Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [17]

).

48 Pinson v Lloyds & National Foreign Bank Ltd [1941] 2 KB 72 Note 3.

at 75

; Federal Court Rules 2011 (Cth) r 16.41

7.22 An example where more particularity is usually required is where fraud, misconduct or other serious matters are alleged.49 The rules in most jurisdictions specifically require particulars to be given of fraud or dishonesty.50 The oftcited passage of Lord Millett in Armitage v Nurse highlights the crux of the principle:51 Fraud must be distinctly alleged and as distinctly proved: Davy v Garrett (1877) 7 Ch D 473 at 489 per Thesiger LJ. It is not necessary to use the word ‘fraud’ or ‘dishonesty’ if the facts which make the conduct complained of fraudulent are pleaded; but,if the facts pleaded are consistent with innocence, then it is not open to the court to find fraud. As Buckley LJ said in Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250 at 268 ; [1979] 1 All ER 118 at 130–1 : ‘An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a wellrecognised rule of practice. This does not import that the word “fraud” or the word “dishonesty” must be necessarily used … The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved,but where the facts are complicated this may not be so clear, and in such a case it is incumbent on the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity’.

Page 260 Lord Millett further highlights the distinct rule that particulars play in cases alleging fraud or dishonesty in the Three Rivers case:52 It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings

Page 14 of 59 Chapter 7 Pleadings: Defining the Controversy is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means ‘dishonestly’ or ‘fraudulently’, it may not be enough to say ‘wilfully’ or ‘recklessly’. Such language is equivocal. A similar requirement applies, in my opinion, in a case like the present, but the requirement is satisfied by the present pleadings. It is perfectly clear that the depositors are alleging an intentional tort. The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet.But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.

49 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361 at [68] per Flick J. A helpful summary of the jurisprudence around pleading dishonesty is set out in the judgment of Sifris J in Finance & Guarantee Company Pty Ltd v Auswild (No 2) [2016] VSC 559 at [32]–[39]

.

50 Federal Court Rules 2011 (Cth) r 16.42; Court Procedures Rules 2006 (ACT) rr 407(1)(h) and (j) and 430(1)(c); Uniform Civil Procedure Rules 2005 (NSW) r 15.3; Supreme Court Rules (NT) r 13.10(3); Local Court (Civil Jurisdiction) Rules (NT) rr 7.01(2)(e)(ii) and 8.03(1)(a); Uniform Civil Procedure Rules 1999 (Qld) rr 150(1)(f), (i) and (k) and 157(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10(3); County Court Civil Procedure Rules 2008 (Vic) r 13.10(3); Rules of the Supreme Court 1971 (WA) O 20 r 13(1). The rules in South Australia do not include this requirement explicitly. The rules in Tasmania provide that it is sufficient to allege malice, fraudulent intention, knowledge or another state of mind as a fact without setting out the circumstances from which it is to be inferred (Supreme Court Rules 2000 (Tas) r 238). 51 Armitage v Nurse [1998] Ch 241

at 256–7

; [1997] EWCA Civ 1279; [1997] 2 All ER 705 at 715–16

Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17 at [605]

, quoted in

per Murphy JA; in turn quoted in

Finance & Guarantee Company Pty Ltd v Auswild (No 2) [2016] VSC 559 at [34] per Sifris J. Interestingly, Lord Millett has opined that: ‘[i]n all our jurisprudence there is no sharper dividing line than that which separates cases of fraud and dishonesty from cases of negligence and incompetence’ (Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400; [1998] EWCA Civ 1249 at 418

).

52 Three Rivers District Council v Governor and Company of The Bank of England [2001] UKHL 16; [2001] 2 All ER 513 at [185]–[186]

, quoted in Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361 at [69]

per Flick J; in turn quoted in Finance & Guarantee Company Pty Ltd v Auswild (No 2) [2016] VSC 559 at [33]

.

Choosing which claims to include

7.23 In circumstances where there is more than one cause of action that a plaintiff may pursue arising out of the same set of facts, an important choice must be made as to what causes of action to include in the statement of claim. There are a number of strategic aspects to this decision, but two factors in particular can place a plaintiff in difficulty. On the one hand, there is the principle of Anshun estoppel (or the Henderson v Henderson principle), which holds that a party can be prevented from later bringing a claim that the party could have pursued in earlier proceedings.53 On the other hand, adding additional claims causes greater costs to be incurred and increases delay and complexity (including the risk of an adverse costs order against the plaintiff).54 Unfortunately, there is little in the way of general guidance for plaintiffs in this position save to highlight that the courts, particularly in England, seem to be applying Anshun estoppel less rigidly where a plaintiff chooses not to pursue a cause of action

Page 15 of 59 Chapter 7 Pleadings: Defining the Controversy

Page 261 in earlier proceedings because it would result in additional cost and delay.55 It seems that where a plaintiff puts the defendant on notice, the court will be less likely to find that a subsequent cause of action is barred by Anshun estoppel.56 The cases emphasise that the matter is best raised at a case management conference, so that the court can express a view as to whether the most efficient use of resources would be to bring additional claims as part of the same proceedings or to reserve the claims for possible future proceedings.57

53 See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Henderson [1843] EngR 917 (discussed further in Chapter 26, 26.100 ff).

, applying Henderson v

54 In highly complex litigation it is increasingly common for judges to make costs orders on an issue-by-issue basis. By adding what are often weaker claims to the plaintiff’s case, the plaintiff may be significantly increasing the chances of an adverse costs order being made against it. 55 See, for example, Aldi Stores v WSP Group plc [2008] 1 WLR 748 Linde [2008] 1 WLR 823

; [2008] EWCA Civ 2

; [2007] EWCA Civ 1260

; Stuart v Goldberg

.

56 See Aldi Stores v WSP Group plc [2008] 1 WLR 748 particularly Stuart v Goldberg Linde [2008] 1 WLR 823 57 See Aldi Stores v WSP Group plc [2008] 1 WLR 748

; [2007] EWCA Civ 1260 at [21] ; [2008] EWCA Civ 2 at [91]

per Thomas LJ; and see per Clarke MR.

; [2007] EWCA Civ 1260 at [29]–[31]

[42] per Longmore LJ; Stuart v Goldberg Linde [2008] 1 WLR 823 Clarke MR.

per Thomas LJ and

; [2008] EWCA Civ 2 at [91],[94],[96]–[97]

per

Requests for clarification

7.24 The exchange of pleadings should normally suffice to identify, with precision, the issues in dispute. Given the increasing emphasis on alternative dispute resolution and pre-action dispute resolution procedures, the circumstances in which a party is unaware of its opponent’s case should be relatively rare. Historically, disputes over pleadings and issues such as requests for further and better particulars were a major cause of unnecessary delay and increased costs.58 Crucially, though, the courts no longer seem receptive to ‘[t]echnical objections raised to pleadings on the ground of alleged want of form’.59 Indeed, objections by a party to pleadings on the grounds of form rather than substance are expressly prohibited in the court rules in some jurisdictions.60

58 See, for example, Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, Vol 1, 5 September 2014, p 385; Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, ALRC Report 89, January 2000, p 573; British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 72 BLR 26 at 34C

per Saville LJ.

59 Beech Petroleum NL v Johnson (1991) 105 ALR 456; [1991] FCA 839 at [40]

per von Doussa J.

60 Court Procedures Rules 2006 (ACT) r 410; Supreme Court Rules 2000 (Tas) r 231.

7.25 It may occasionally happen, however, that a party finds it difficult to respond to its opponent’s case without some further information or clarification. The court rules permit a party to request the court to order an opposing party

Page 16 of 59 Chapter 7 Pleadings: Defining the Controversy provide further and better particulars of its case.61 Before applying to the court for an order for further and better particulars, a party should write to its opponent directly and requesting further clarification. Only if no response is forthcoming should the party apply to

Page 262 the court for the order. Indeed, this is explicitly required by the court rules for some Australian courts.62 In considering an application for further and better particulars, the overriding objective and, in particular, the need for proportionality, require the court to have regard to the following considerations: •

the likely benefit that the information would have for the just determination of the issues;

•

the cost that is likely to be involved in supplying it;

•

whether the request places an unreasonable burden on the party potentially subject to the order; and

•

the conduct in the litigation so far of the party potentially subject to the order.

Following the introduction of the Civil Procedure Rules in England, Lord Woolf MR has observed:63 In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious.This reduces the need for particulars in order to avoid being taken by surprise.

61 Federal Court Rules 2011 (Cth) r 16.45; Court Procedures Rules 2006 (ACT) r 434; Uniform Civil Procedure Rules 2005 (NSW) r 15.10; Supreme Court Rules (NT) r 13.11; Local Court (Civil Jurisdiction) Rules (NT) Pt 10; Uniform Civil Procedure Rules 1999 (Qld) r 161; Supreme Court Civil Rules 2006 (SA) r 102;District Court Civil Rules 2006 (SA) r 102; Magistrates Court (Civil) Rules 2013 (SA) r 70; Supreme Court Rules 2000 (Tas) r 253(1); Magistrates Court(Civil Division) Rules 1998 (Tas) r 46(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.11; County Court Civil Procedure Rules 2008 (Vic) r 13.11; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 13.10;Rules of the Supreme Court 1971 (WA) O 20 r 13(3). 62 Supreme Court Rules (NT) r 13.11(3); Local Court (Civil Jurisdiction) Rules (NT) rr 10.01 and 10.04; Supreme Court Rules 2000 (Tas)r 253(2); Magistrates Court (Civil Division) Rules 1998 (Tas) r 46(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.11(3); County Court Civil Procedure Rules 2008 (Vic) r 13.11(3); Magistrates’ Court General Civil Procedure Rules 2010 (Vic) rr 13.05 and 13.06; Rules of the Supreme Court 1971 (WA) O 20 r 13(6). 63 McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775; [1999] EWCA Civ 1464 at [4]

per Woolf MR.

Defence

7.26 A defendant who wishes to defend the claim, or part of it, must file a defence.64 This applies equally to a plaintiff who is a defendant to a counterclaim. Failure to file a defence would ordinarily entitle the plaintiff to obtain default judgment.65

64 See Federal Court Rules 2011 (Cth) r 16.32; Court Procedures Rules 2006 (ACT) Div 2.6.5; Uniform Civil Procedure Rules 2005 (NSW) r 14.3; Supreme Court Rules (NT) r 13.12;Local Court (Civil Jurisdiction) Rules (NT) Pt 8; Uniform Civil Procedure Rules 1999 (Qld) rr 165–167; Supreme Court Civil Rules 2006 (SA) r 100; District Court Civil Rules 2006 (SA) r 100; Supreme Court Rules 2000 (Tas) r 243; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.12; County Court Civil Procedure Rules 2008 (Vic) r 13.12; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 13.02; Rules of the Supreme Court 1971 (WA) O 20; Magistrates Court (Civil Procedure) Rules 2005 (WA) r 10.

Page 17 of 59 Chapter 7 Pleadings: Defining the Controversy 65 As distinct from summary judgment: Judicial Commission of New South Wales, Civil Trials Bench Book, Update 33, March 2017, [2-6920], citing Brimson v Rocla Concerete Pipes Ltd [1982] 2 NSWLR 937

; see also Manderson M &

F Consulting (a firm) v Incitec Pivot Ltd (2011) 35 VR 98; [2011] VSCA 444 at [32]–[34] ff.

; see further Chapter 9, 9.4

7.27 The defence must address the points made in the statement of claim. The rules require that a defence must specifically admit or deny every allegation of fact in the statement of claim. However, if a party does not know whether the allegation is true, the party may state specifically that the party does not admit the allegation. The rules underwrite this principle of comprehensiveness by providing that allegations that are not specifically denied or specifically not admitted are taken to be admitted. A party in a

Page 263 defence or subsequent pleading is then required to plead any matter that the party alleges makes a claim, defence or other aspect of an opposing party’s case not maintainable.66

66 This may be required expressly by the court rules (see, for example, Uniform Civil Procedure Rules 2005 (NSW) r 14.14(2)(b)) or by virtue of the general obligations to plead the material facts on which the party relies and to plead any fact that may take another party by surprise.

7.28 In this vein, a defence ordinarily goes through each of the numbered paragraphs of the statement of claim and identifies the allegations of fact that are denied, those that are admitted and those which the defendant is unable to admit nor deny(and so the defendant requires the plaintiff to prove). A defendant is not permitted to make general denials of the plaintiff’s allegations or to plead the ‘general issue’ — each specific allegation in the statement of claim or counterclaim must be addressed. Once all of the points in the statement of claim have been traversed, a defence proceeds to identify all the material facts alleged by the defendant as part of the defendant’s defence. It is incumbent on a defendant not to barely deny the plaintiff ’s allegations. Where the defendant denies an allegation, the defendant should state the reasons for that denial including the defendant’s own version of events, either in the defence or the particulars of the defence (as appropriate). The defence should be able to be read together with the statement of claim to enable a person to know precisely which matters are in dispute and each party’s position on those matters.

7.29 Importantly, a number of aspects of procedural law operate to ensure that parties admit as many factual allegations as may reasonably be admitted, so that unnecessary cost and delay is not incurred in proving these matters at trial. First is of course the overriding objective and the attendant obligations on the parties and their lawyers to achieve a just resolution of the dispute at minimal cost and with minimal delay. Secondly, a defendant who fails to admit allegations that are plainly true may be penalised in costs. Indeed, court rules often permit a plaintiff to demand a specific admission by serving a notice to admit on the opposing party.67 Finally, in jurisdictions requiring verification or certification of pleadings (as discussed later in this chapter), the party filing the defence or its lawyer must certify that there is a proper basis for each allegation, denial and non-admission in the defence.68

Page 18 of 59 Chapter 7 Pleadings: Defining the Controversy 67 Federal Court Rules 2011 (Cth) r 22.01; Court Procedures Rules 2006 (ACT) r 491; Uniform Civil Procedure Rules 2005 (NSW) r 17.3; Supreme Court Rules (NT) r 35.03;Local Court (Civil Jurisdiction) Rules (NT) r 19.05 (provides for a notice to dispute rather than a notice to admit); Uniform Civil Procedure Rules 1999 (Qld) r 189; Supreme Court Civil Rules 2006 (SA) r 156; District Court Civil Rules 2006 (SA) r 156; Supreme Court Rules 2000 (Tas) r 399; Magistrates Court (Civil Division) Rules 1998 (Tas) r 47(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 35.03; County Court Civil Procedure Rules 2008 (Vic) r 35.03; Magistrates’ Court General Civil Procedure Rules 2010 (Vic)r 35.03; Rules of the Supreme Court 1971 (WA) O 30 r 2; Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 28. See also Chapter 15, 15.221–15.224. 68 See, for example, Federal Court Rules 2011 (Cth) r 16.01; Uniform Civil Procedure Rules 2005 (NSW) r 14.23; Civil Procedure Act 2010 (Vic) s 42; see further 7.80–7.85 below.

7.30 Except where required to do so,69 a defendant who wishes to dispute the jurisdiction of the court should not file a defence before the determination of its

Page 264 objection to the jurisdiction. Indeed, it may be argued that filing a defence amounts to submission to the jurisdiction of the court under foreign jurisdictions’ rules of private international law. Once the defendant’s objection to the jurisdiction has been dismissed, the court will usually give directions for filing a defence.

69 See, for example, Supreme Court Civil Rules 2006 (SA) rr 100(1)(a) and 100(2); District Court Civil Rules 2006 (SA) rr 101(1)(a) and 100(2).

7.31 As with other deadlines in the court rules, the court may extend the timeframe for filing a defence. In some highly complex cases where the defendant has not had significant advance notice of the plaintiff’s specific claims, this may be appropriate, but the court’s attitude to compliance with time limits is more exacting than in the past. As the timeframes for filing pleadings are set by the rules, the parties cannot simply agree to extend them — extension may only be permitted by the court. Regard must also be had to court resources, litigation costs and the importance of the timely resolution of disputes.

Counterclaims and third party claims

7.32 Occasionally, a defendant will seek to make one or more claims of its own against a plaintiff by way of a counterclaim (in some jurisdictions, a cross-claim).70 For example, in an intellectual property dispute a plaintiff may seek an injunction against the defendant to prevent the ongoing infringement of the plaintiff’s patent. To establish a defence the defendant may counterclaim for revocation of the patent. In some cases, the defendant’s claim against the plaintiff may be unrelated to the plaintiff ’s claim. A defendant may, for example, simply claim that the plaintiff owes the defendant a sum of money under an unrelated contract.Given that the court should seek to resolve all existing disputes between the parties, the rules permit a defendant to initiate a counterclaim on any basis; that is, regardless of whether the counterclaim is related to the plaintiff’s case or not.Importantly, though, the court may, in its discretion, order that the counterclaim be determined by way of separate proceedings where it is expedient to do so. A defendant is usually required to file a counterclaim along with, or as part of, its defence.As it effectively performs the same function, the requirements for a counterclaim largely mirror those for a statement of claim.

Page 19 of 59 Chapter 7 Pleadings: Defining the Controversy

70 See Federal Court Rules 2011 (Cth) Pt 15; Federal Circuit Court Rules 2001 (Cth) Pt 28; Court Procedures Rules 2006 (ACT) Div 2.6.7;Uniform Civil Procedure Rules 2005 (NSW) Pt 9; Supreme Court Rules (NT) O 10; Local Court (Civil Jurisdiction) Rules (NT) Pt 9; Uniform Civil Procedure Rules 1999 (Qld) Ch 6 Pt 5 Div 2; Supreme Court Civil Rules 2006 (SA) rr 35 and 37; District Court Civil Rules 2006 (SA) rr 35 and 37; Magistrates Court (Civil) Rules 2013 (SA) rr 31–33; Supreme Court Rules 2000 (Tas) Div 14;Magistrates Court (Civil Division) Rules 1998 (Tas) r 50; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 10; County Court Civil Procedure Rules 2008 (Vic) O 10; Magistrates’ Court General Civil Procedure Rules 2010 (Vic)O 10; Rules of the Supreme Court 1971 (WA) O 18; Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 8.

7.33 Where a counterclaim is for a sum of money, the defendant will usually plead this by way of set-off and counterclaim. ‘Set-off’ is a defence which allows any amount owing to the defendant to be set off against any amount awarded to the plaintiff on the plaintiff ’s claim.71 The plaintiff is only awarded the difference. Unless an amount

Page 265 is claimed by way of set-off, if both the claim and the counterclaim are successful, the decision of the court will give rise to two separate judgment debts.72 This has particular ramifications if a party is or becomes insolvent. Further, if an amount is simply pleaded as a defence by way of set-off and not by way of counterclaim, and the amount ultimately owed to the defendant exceeds the amount the defendant owes to the plaintiff, the defendant will not be awarded the difference. In some jurisdictions, the rules effectively negate the need for a defendant to plead the defence of set-off by expressly providing that where a plaintiff’s claim is successful and a defendant’s counterclaim is also successful and a balance results in favour of one of the parties, the court may award judgment for that balance.73 It nevertheless remains common for a defendant to plead both set-off in its defence and the amount by way of a counterclaim.

71 Set-off as a defence in contract, under statute and in equity, is an area of considerable complexity (see, generally, New South Wales Law Reform Commission, Set-Off, Report 94, February 2000). 72 New South Wales Law Reform Commission, Set-Off, Report 94, February 2000, [1.5], citing R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines and Remedies, 3rd ed, Butterworths,Sydney, 1992, [3701]. 73 See, for example, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 10.09.

7.34 It may happen that a defendant wishes to claim against some third party in connection with the matter. For example, a plaintiff may allege that the defendant was negligent and the defendant may seek to claim against a third party for contributing to the loss alleged by the plaintiff. Or, a defendant may seek to claim against a third party in contract for a breach of warranty or under an indemnity provided by that third party. Take the illustration of a simple sale of goods. The manufacturer sells the goods to a retailer who then sells the goods to a consumer. If the goods turn out to be defective, the consumer may claim against the retailer for selling the consumer defective goods. The retailer may, in turn, seek to claim against the manufacturer for supplying the retailer with defective goods. Although the claim between the retailer and the manufacturer does not involve the plaintiff, a central issue in both cases may be whether the goods were, in fact, defective. By having both cases heard and determined together, that issue can be resolved once and that decision can be binding on all parties. If the claims were heard and determined independently, there is potentially a risk of inconsistent decisions — the court in the case between the consumer and the retailer may find that the goods were defective, but the court in the case between the retailer and the manufacturer may find that they were not. The rules, therefore, allow a defendant to bring a claim against a third party in the same proceedings where the claim is related to the subject matter of the proceedings (a third party

Page 20 of 59 Chapter 7 Pleadings: Defining the Controversy claim or, in some jurisdictions, counterclaims and third party claims are collectively referred to as cross-claims).74 For further detail on set-off, counterclaims and third party claims, see Chapter 4, 4.122 ff.

Page 266

74 See Federal Court Rules 2011 (Cth) Pt 15; Federal Circuit Court Rules 2001 (Cth) Pt 28; Court Procedures Rules 2006 (ACT) Pt 2.5; Uniform Civil Procedure Rules 2005 (NSW) Pt 9; Supreme Court Rules (NT) O 11; Local Court (Civil Jurisdiction) Rules (NT) Pt 13; Uniform Civil Procedure Rules 1999 (Qld) Ch 6 Pt 6; Supreme Court Civil Rules 2006 (SA) rr 36 and 37; District Court Civil Rules 2006 (SA) rr 36 and 37; Magistrates Court (Civil) Rules 2013 (SA) r 35; Supreme Court Rules 2000 (Tas) Div 15; Magistrates Court (Civil Division) Rules 1998 (Tas) r 52; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 11; County Court Civil Procedure Rules 2008 (Vic) O 11; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) O 11;Rules of the Supreme Court 1971 (WA) O 19; Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 8.

Reply and further pleadings

7.35 In most cases, the exchange of particulars of claim and of defence should be sufficient to join the issues (identify all the issues about which the plaintiff and the defendant are in dispute), so that no further exchange will be needed. But in some cases, a reply to the defence may prove necessary, as where the defendant has gone beyond a denial of the claimant’s grounds for the claim and has alleged new facts in support of its defence. In an action for breach of contract a defendant may, for example, admit the breach and the damage but raise the defence of frustration. The reply provides the claimant with an opportunity to address that defence.75

75 See Federal Court Rules 2011 (Cth) r 16.33; Federal Circuit Court Rules 2001 (Cth) r 4.07; Court Procedures Rules 2006 (ACT) r 480;Uniform Civil Procedure Rules 2005 (NSW) r 14.4; Supreme Court Rules (NT) r 14.05; Uniform Civil Procedure Rules 1999 (Qld) r 164; Supreme Court Civil Rules 2006 (SA) rr 94 and 101; District Court Civil Rules 2006 (SA) rr 94 and rr 101; Supreme Court Rules 2000 (Tas) r 267; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.05; County Court Civil Procedure Rules 2008 (Vic) r 14.05; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 13.03; Rules of the Supreme Court 1971 (WA) O 20 r 5. Note the court rules for some lower courts do not make explicit provision for a reply — in these cases, one could only be filed with the leave of the court (see Local Court (Civil Jurisdiction) Rules (NT) and Magistrates Court (Civil Proceedings) Rules 2005 (WA)).

7.36 A reply must not be used for repeating the allegations in the statement of claim or for bolstering them by challenging the defendant’s denials. Nor should a reply be used to advance a new claim. It should only be used for dealing with matters that could not have been addressed in the statement of claim. It also follows that a reply must not contradict or be inconsistent with the statement of claim. The same goes for any subsequent pleading filed by a party. If a party wishes to correct or qualify a statement in its earlier pleadings, this must be done by way of an amendment to the earlier pleadings and not by statements made in subsequent pleadings.

7.37

Page 21 of 59 Chapter 7 Pleadings: Defining the Controversy To reduce any need for a plaintiff to file a reply, the rules provide that a plaintiff who does not file a reply to a defence is taken to deny any allegation of fact in the defence.76 This is also known as implied joinder of issue. As already stated, no pleadings may be served beyond the reply, without leave of the court.77 These further

Page 267 exchanges are known as the defendant’s ‘rejoinder’ to the plaintiff’s reply, followed by the plaintiff’s ‘surrejoinder’, the defendant’s ‘rebutter’and the plaintiff’s ‘surrebutter’. Leave to file these subsequent pleadings is unlikely to be given, save in very exceptional circumstances.

76 Federal Court Rules 2011 (Cth) r 16.11(1); Court Procedures Rules 2006 (ACT) r 482(3); Uniform Civil Procedure Rules 2005 (NSW) r 14.27(2); Supreme Court Rules (NT) r 13.13(2); Uniform Civil Procedure Rules 1999 (Qld) rr 168 and 169; Supreme Court Civil Rules 2006 (SA) r 101(3); District Court Civil Rules 2006 (SA) r 101(3); Supreme Court Rules 2000 (Tas) r 255; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.13; County Court Civil Procedure Rules 2008 (Vic) r 13.13; Rules of the Supreme Court 1971 (WA) O 20 r 15(1). 77 Federal Court Rules 2011 (Cth) r 16.12 (pleadings close at the reply); Court Procedures Rules 2006 (ACT) r 481(1); Uniform Civil Procedure Rules 2005 (NSW) rr 14.4(2) and 14.5 (even a reply requires the leave of the court in the Local Court); Supreme Court Rules (NT) r 14.06; Uniform Civil Procedure Rules 1999 (Qld) r 169 (by virtue of the definition of close of pleadings); Supreme Court Civil Rules 2006 (SA) r 95; District Court Civil Rules 2006 (SA) r 95; Magistrates Court (Civil) Rules 2013 (SA) r 34 (provides that a party is deemed to have replied pleading the general issue); Magistrates Court (Civil Division)Rules 1998 (Tas) r 44(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.06; County Court Civil Procedure Rules 2008 (Vic) r 14.05; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) (there is simply no provision for anything beyond a reply); Rules of the Supreme Court 1971 (WA) O 20 r 6. The one exception seems to be in the Supreme Court of Tasmania where the rules provide that pleadings continue until the matters in dispute between the parties are definitively shown by the pleadings (Supreme Court Rules 2000 (Tas) r 228).

Pleadings by jurisdiction Federal courts — High Court

7.38 As it is relatively rare for civil proceedings to be tried at first instance in the High Court, we will not consider the High Court Rules on pleadings in detail. Pleadings, as such, are generally only required in cases commenced by writ of summons.78 Thus, different processes apply in cases:79 •

involving writs of mandamus, prohibition, certiorari, habeas corpus or quo warranto;

•

commenced under s 40 of the Judiciary Act 1903 (Cth); or

•

involving a dispute to the validity of an election or return under the Commonwealth Electoral Act 1918 (Cth).

The rules around pleadings in the High Court are much less detailed than for lower courts in the hierarchy, but the general requirements are largely the same.

78 See pleadings requirements in High Court Rules 2004 (Cth) Pt 27. 79 High Court Rules 2004 (Cth) r 20.01.

Federal courts — Federal Court

7.39

Page 22 of 59 Chapter 7 Pleadings: Defining the Controversy In the Federal Court, pleadings are used in matters commenced by originating application (performs the same function as a writ).80 An originating application must be accompanied by a statement of claim if the relief sought by the applicant (plaintiff) includes damages or, otherwise, either a statement of claim or an affidavit in support of the application.81 Once the originating application and statement of claim are filed, the registrar fixes a return date and a place for hearing.82 The return date is the date the matter will first come before the court for a directions hearing. The application and statement of claim or affidavit must be personally served on each respondent (defendant) at least five days before the return date.83 The respondent must then file its defence to the application within 28 days after service of the statement of claim.84

Page 268 The respondent may, at the same time as filing its defence or affidavit in reply to the applicant’s affidavit,85 make a cross-claim in the proceedings against the applicant or, provided the claim is related to the principal claim, any other person.86 The respondent must file a notice of cross-claim, which must be accompanied by either a statement of cross-claim or an affidavit in support of the cross-claim.87 The pleadings process, and indeed the other court procedures, then apply to that cross-claim in the same way as they apply to the original claim.88 If the applicant wishes to file a reply to the respondent’s defence, it must do so within 14 days after service of the defence.89 A range of specific provisions apply in certain cases such as judicial review cases, remittals and referrals from the High Court, appeals of decisions from non-courts such as the Australian Taxation Office and Administrative Tribunals, Fair Work proceedings, intellectual property proceedings, trans-Tasman proceedings, native title proceedings and human rights proceedings.90

80 For further information on the originating application in the Federal Court, see Chapter 4, 4.59 ff. 81 Federal Court Rules 2011 (Cth) r 8.05(1). 82 Federal Court Rules 2011 (Cth) r 8.05(1) Note 1. 83 Federal Court Rules 2011 (Cth) r 8.06. 84 Federal Court Rules 2011 (Cth) r 16.32. 85 Federal Court Rules 2011 (Cth) r 15.04. 86 Federal Court Rules 2011 (Cth) r 15.01. 87 Federal Court Rules 2011 (Cth) rr 15.02 and 15.06. 88 Federal Court Rules 2011 (Cth) r 15.10. 89 Federal Court Rules 2011 (Cth) r 16.33. 90 Federal Court Rules 2011 (Cth) Ch 3.

7.40 The requirements for pleadings in the Federal Court covering the principles discussed earlier in this chapter are set out in Pt 16 of the Federal Court Rules 2011 (Cth). The rules require that particulars must be provided to support any pleadings alleging: fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default, undue influence;91 any knowledge of a party, disorder or disability of a party’s mind or any fraudulent intention of a party;92 and the amount of any damages paid or claimed and the facts on which any exemplary damages are claimed.93 The rules are much less prescriptive about what must be included in an affidavit accompanying an application or notice of cross-claim, but they do require that the affidavit ‘must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial’.94

91 Federal Court Rules 2011 (Cth) r 16.42. 92 Federal Court Rules 2011 (Cth) r 16.43.

Page 23 of 59 Chapter 7 Pleadings: Defining the Controversy 93 Federal Court Rules 2011 (Cth) r 16.44. 94 Federal Court Rules 2011 (Cth) rr 8.05(2) and 15.06(2).

Federal courts — Federal Court Fast Track proceedings

7.41 As with the rules in any court, the Federal Court may, in appropriate cases, choose to dispense with compliance with the rules and to make alternative orders.95 A key feature of the historical Fast Track list for commercial cases in the Federal Court was the doing away with formal pleadings and instead proceeding on the basis of summary statements of facts and contentions of the parties.96 The Federal Court’s Case Management Handbook notes the many ‘real and substantial’ criticisms of

Page 269 pleadings and that they are, to ‘a considerable extent … ameliorated’ by the use of these Fast Track statements and recommends their general adoption.97 The widely appreciated success of Fast Track procedures in the Federal Court has since led to the expansion of the availability of these procedures to almost all commercial cases.98 The Federal Court’s Commercial and Corporations Practice Note allows parties in commercial cases to file a ‘concise statement’ of that party’s case in place of a statement of claim or affidavit.99 The practice note instructs that ‘the majority of commercial and corporations matters will be assisted by being commenced with a concise statement’.100 The practice note states:101 The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute and the essential relief sought from the Court before what might be the considerable cost of preparation of detailed pleadings is incurred. While the form of the concise statement is described in more detail below, it must first be emphasised that the concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form.

This concise statement must not exceed five pages (including the formal parts of the statement) and must summarise: 1. the important facts giving rise to the claim; 2. the relief sought from the court (and against whom); 3. the primary legal grounds (causes of action) for the relief sought; and 4. the alleged harm suffered by the applicant (including, wherever possible, a conservative and realistic estimate or range of loss and damage).102 Where a concise statement is filed, the case will proceed on the basis of the expedited case management procedure set out in the practice note.103 Ordinarily, the respondent will also be required to file a concise statement in response, which is similarly to be drafted in narrative form.104

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95 Federal Court Rules 2011 (Cth) rr 1.34 and 1.35. 96 Federal Court of Australia, Practice Note CM 8 (Chief Justice Keane, 1 August 2011) (revoked), Part 4. 97 Law Council of Australia and the Federal Court of Australia, Case Management Handbook, July 2014, [5.60]. 98 See Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016).

Page 24 of 59 Chapter 7 Pleadings: Defining the Controversy 99 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.3]. 100 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.8]. 101 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.4]. 102 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.6]. 103 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.7]. 104 Federal Court of Australia, Commercial and Corporations Practice Note (C&C-1) (Chief Justice Allsop, 25 October 2016), [5.7].

Federal courts — Federal Circuit Court

7.42 In the Federal Circuit Court, the rules largely reflect those of the Federal Court except that, consistent with the Federal Circuit Court’s role in determining smaller claims, affidavits in support, in place of formal pleadings, are more common.105 Cases for unlawful termination of employment and a number of contraventions of the Fair Work Act 2009 (Cth) as well as small claims (for less than$20,000)106 do not require an affidavit, statement of claim or points of claim, but rather proceed on the basis of their own forms and procedures.107

105 Rule 4.05 of the Federal Circuit Court Rules 2001 (Cth) frames the use of pleadings by way of exceptions to the general rule that an application or response is accompanied by an affidavit in support. Where pleadings are used, the Federal Court Rules 2011 (Cth) will generally apply in civil, non-family law, cases — see Federal Circuit Court of Australia Act 1999 (Cth) s 43(2)(b). 106 Federal Circuit Court Rules 2001 (Cth) r 45.11(1)(a). 107 Termination of employment: Federal Circuit Court Rules 2001 (Cth) r 45.04; contraventions of the Fair Work Act 2009 (Cth): Federal Circuit Court Rules 2001 (Cth) Div 45.3; and small claims: Federal Circuit Court Rules 2001 (Cth) r 45.12.

The Australian Capital Territory

7.43 In the Australian Capital Territory, pleadings apply in proceedings commenced by originating claim (performs the same functions as a writ).108 A statement of claim must be attached to the originating claim.109 Within 28 days of being served with the plaintiff ’s claim the defendant must file its notice of intention to respond, which, if unconditional, must be accompanied by the defendant’s defence.110 The defendant may file a counterclaim against the plaintiff or a third party.111 A counterclaim is to be included with the defendant’s defence.112 Where the counterclaim is against a third party, the defendant (counter-claimant) must follow the third party notice procedure.113 The plaintiff may file a reply to a defence only for the purpose of denying allegations made in the defence, within 14 days after the defence is served on the plaintiff.114 Pleadings after a reply require the leave of the court.115

108 For further information on the different originating processes in the Australian Capital Territory, see Chapter 4, 4.64 ff. 109 Court Procedures Rules 2006 (ACT) r 50(2).

Page 25 of 59 Chapter 7 Pleadings: Defining the Controversy 110 Court Procedures Rules 2006 (ACT) rr 100(2) and 102(1)(a). 111 Court Procedures Rules 2006 (ACT) rr 461 and 462. 112 Court Procedures Rules 2006 (ACT) r 464. 113 Court Procedures Rules 2006 (ACT) Pt 2.5. 114 Court Procedures Rules 2006 (ACT) r 480. 115 Court Procedures Rules 2006 (ACT) r 481.

7.44 The rules include a very long list of matters that must be specifically pleaded that would cover most causes of action beyond simple debt claims:116 (1)

Without limiting rule 406, the following matters must be specifically pleaded: (a) an accident the cause of which is unknown and undiscoverable; (b) breach of contract or trust;

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(c) breach of statutory duty;117 (d) damages of every kind claimed, including, for example, special and exemplary damages;118 (e) duress; (f) estoppel; (g) extinction of right or title; (h) fraud or illegality; (i) interest (including the rate of interest and method of calculation) claimed; (j) malice or ill will; (k) misrepresentation; (l) motive, intention or other condition of mind, including knowledge or notice; (m) negligence or contributory negligence;119 (n) payment; (o) performance or part performance; (p) release; (q) statute of limitations; (r) a statute requiring that contracts be in, or evidenced by, writing (for example, statute of frauds); (s) undue influence; (t) voluntary assumption of risk; (u) waiver; (v) want of capacity, including disorder or disability of mind;

Page 26 of 59 Chapter 7 Pleadings: Defining the Controversy (w) that a testator did not know and approve of the contents of a will; (x) that a will was not properly made; (y) wilful default; (z) anything else required by a practice note to be specifically pleaded. (2)

Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.

(3)

In a defence or pleading after a defence, a party must specifically plead any matter that – (a) the party alleges makes a claim or defence of the opposite party not maintainable; or (b) shows a transaction is void or voidable; or (c) raises an issue of fact not arising out of a previous pleading.

The rules also require particulars to be included if any of the above matters are pleaded.120 Special content must be included for interest on debts or liquidated demands;121 claims for damages for death or personal injury caused by the negligent

Page 272 use of a motor vehicle;122 claims for damages for death or personal injury caused by any negligence or breach of statutory duty by an employer;123 and human rights cases.124 Short form pleading is allowed for certain money claims.125

116 Court Procedures Rules 2006 (ACT) r 407. 117 See also Court Procedures Rules 2006 (ACT) r 432. 118 See also Court Procedures Rules 2006 (ACT) r 417. 119 See also Court Procedures Rules 2006 (ACT) r 432. 120 Court Procedures Rules 2006 (ACT) r 430(1)(c). 121 Court Procedures Rules 2006 (ACT) r 51. 122 Court Procedures Rules 2006 (ACT) r 52. 123 Court Procedures Rules 2006 (ACT) r 53. 124 Court Procedures Rules 2006 (ACT) rr 407A and 407B. 125 Court Procedures Rules 2006 (ACT) r 408.

New South Wales

7.45 In New South Wales, a plaintiff ’s statement of claim is a type of originating process126 and therefore it must comply with the requirements discussed in Chapter 4, 4.76 ff. A defendant must file a defence within 28 days after being served with the statement of claim.127 The defendant may also file a cross-claim within the time allowed for filing the defence.128 The same rules apply to a cross-claim as to a statement of claim.129 In the Supreme Court of New South Wales or the District Court of New South Wales, the plaintiff may file a reply to a defence as of right within 14 days of the defence being served on the plaintiff.130 In the Local Court, however, a reply may only be filed with the leave of the court.131 Subsequent pleadings after a reply always require the leave of the court.132 The rules also specifically permit the court to do away with pleadings after the originating process (statement of claim) and may direct the parties to instead prepare a statement of issues.133 If the parties cannot agree a statement of issues, the court may settle the statement itself.134

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126 Uniform Civil Procedure Rules 2005 (NSW) r 6.2(1). 127 Uniform Civil Procedure Rules 2005 (NSW) r 14.3(1). 128 Uniform Civil Procedure Rules 2005 (NSW) r 9.1(1). 129 Uniform Civil Procedure Rules 2005 (NSW) r 9.1(3). 130 Uniform Civil Procedure Rules 2005 (NSW) r 14.4(1) and (3). 131 Uniform Civil Procedure Rules 2005 (NSW) r 14.4(2). 132 Uniform Civil Procedure Rules 2005 (NSW) r 14.5. 133 Uniform Civil Procedure Rules 2005 (NSW) r 14.2. 134 Uniform Civil Procedure Rules 2005 (NSW) r 14.2(2).

7.46 Additional rules apply to pleadings in certain cases: •

In all cases except for in relation to certain motor vehicle matters, pleadings must not claim amounts for unliquidated damages.135

•

Short form pleadings are permitted for certain money claims (for example, simple claims for money payable for goods sold and delivered, work done or materials provided, money lent, money paid at the defendant’s request).136

•

Matters that must be pleaded include: fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown or undiscoverable mechanical defect, facts showing illegality,reliance by a defendant on contributory negligence and claims for relief under s 20(1) of the Property (Relationships) Act 1984 (NSW).137

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Specific requirements apply to pleadings concerning possession of land138 and the rules set out a detailed regime applicable in defamation cases.139

•

Particulars must be included for any alleged fraud, misrepresentation, breach of trust, wilful default or undue influence,140 alleged conditions of mind,141 negligent acts or omissions,142 breaches of statutory duty,143 out-of-pocket expenses,144 exemplary damages145 or aggravated damages.146

•

Specific requirements around particulars apply to claims under s 20(1) of the Property (Relationships) Act 1984 (NSW),147 personal injury cases148 and defamation.149

In New South Wales, the party must also verify its pleadings by affidavit.150 This requirement is discussed later in this chapter at 7.80 ff.

135 Uniform Civil Procedure Rules 2005 (NSW) r 14.13. 136 Uniform Civil Procedure Rules 2005 (NSW) r 14.12. 137 Uniform Civil Procedure Rules 2005 (NSW) rr 14.14(3) and 14.16. 138 Uniform Civil Procedure Rules 2005 (NSW) r 14.15. 139 Uniform Civil Procedure Rules 2005 (NSW) Pt 14 Div 6. 140 Uniform Civil Procedure Rules 2005 (NSW) r 15.3.

Page 28 of 59 Chapter 7 Pleadings: Defining the Controversy 141 Uniform Civil Procedure Rules 2005 (NSW) r 15.4. ‘Condition of mind’ includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge. 142 Uniform Civil Procedure Rules 2005 (NSW) r 15.5(1). 143 Uniform Civil Procedure Rules 2005 (NSW) r 15.5(2). 144 Uniform Civil Procedure Rules 2005 (NSW) r 15.6. 145 Uniform Civil Procedure Rules 2005 (NSW) r 15.7. 146 Uniform Civil Procedure Rules 2005 (NSW) r 15.8. 147 Uniform Civil Procedure Rules 2005 (NSW) r 15.11. 148 Uniform Civil Procedure Rules 2005 (NSW) Pt 15 Divs 2 and 3. 149 Uniform Civil Procedure Rules 2005 (NSW) Pt 15 Div 4. 150 Uniform Civil Procedure Rules 2005 (NSW) rr 14.22 and 14.23.

Northern Territory — Supreme Court

7.47 In the Supreme Court of the Northern Territory, unless the court orders otherwise, pleadings are required in proceedings commenced by writ.151 The statement of claim may either be endorsed on the writ or the writ may include a statement particularising the nature of the claim, its cause and the relief sought,152 and the statement of claim must subsequently be provided within 14 days of the defendant entering its appearance in the proceedings.153 The defendant must file its defence in the proceedings within 14 days of filing its appearance if the statement of claim was endorsed on the writ154 or, otherwise, within 14 days of the plaintiff serving the statement of claim.155 If the defendant wishes to counterclaim against the plaintiff, the defendant must include the counterclaim in the same document as the defence and the document is then called a defence and counterclaim.156 The defendant must serve the defence and counterclaim on all persons against whom

Page 274 the defendant is counterclaiming who are already party to the proceedings within the timeframe for service of the defence157 and that party then has 14 days to serve its defence to the counterclaim.158 A counterclaim may, in addition to containing a claim against the plaintiff, also include a claim against a person who is not party to the proceedings.159 The defendant must serve any person who is not already party to the proceedings with the defence and counterclaim within 14 days after the time for serving the defence.160 For the purposes of the progress of pleadings, the rules apply as if the defendant counterclaiming were a plaintiff and the third party defendant to the counterclaim were a defendant that had been served with a statement of claim.161 If a defendant wants to claim against a third party, where the claim is unrelated to a claim by the defendant against the plaintiff, the defendant may do so where the claim is for a contribution or indemnity, for some relief connected with the subject matter of the original proceeding or where there is a common question that should be determined in both matters.162 The defendant initiates a claim against a third party by filing a third party notice, which must include a statement of claim, within 28 days of the time for filing a defence.163 The third party notice must then be served on the third party within 60 days of being filed.164 The third party process then generally follows the same process as if the defendant were a plaintiff and the third party were a defendant.165 Finally, within 14 days of service with the defendant’s defence, the plaintiff may serve a reply.166 Pleadings beyond a reply require the leave of the court.167

151 Supreme Court Rules (NT) rr 5.04, 14.01 and 14.02. For further information on the different originating processes in the Supreme Court of the Northern Territory, see Chapter 4, 4.83 ff. 152 Supreme Court Rules (NT) r 5.04. 153 Supreme Court Rules (NT) r 14.02. For detail on, and timeframes for, the entering of an appearance see Chapter 6, 6.16. 154 Supreme Court Rules (NT) r 14.04(a). 155 Supreme Court Rules (NT) r 14.04(b).

Page 29 of 59 Chapter 7 Pleadings: Defining the Controversy 156 Supreme Court Rules (NT) r 10.02. 157 Supreme Court Rules (NT) r 10.04(2)(a). 158 Supreme Court Rules (NT) r 14.07. 159 Supreme Court Rules (NT) r 10.03. 160 Supreme Court Rules (NT) r 10.04(2)(b). 161 Supreme Court Rules (NT) r 10.04(3)–(6) . 162 Supreme Court Rules (NT) r 11.01. 163 Supreme Court Rules (NT) r 11.05(2)(a). A defendant may file and serve a third party notice after this time with the leave of the court or the consent of all other parties who have appeared in the proceedings (Supreme Court Rules (NT) r 11.05(2)(b)). 164 Supreme Court Rules (NT) r 11.07(1). 165 For the detail, see Supreme Court Rules (NT) O 11. 166 Supreme Court Rules (NT) r 14.05. 167 Supreme Court Rules (NT) r 14.06.

7.48 In addition to the general requirements for pleadings articulated earlier in this chapter: •

specific pleadings requirements apply in proceedings for the recovery of land;168

•

claims for exemplary damages must be specifically pleaded together with the relevant facts on which the pleading party relies;169 and

•

certain particulars are explicitly required: —

of any allegation of misrepresentation, fraud, breach of trust, wilful default, undue influence, disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice;170

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168 See Supreme Court Rules (NT) r 13.07(2). 169 Supreme Court Rules (NT) r 13.07(3). 170 Supreme Court Rules (NT) r 13.10(3).

 

—

where the pleading party claims damages for bodily injury; and171

—

of the relevant publication in libel cases.172

171 Supreme Court Rules (NT) r 13.10(4). 172 Supreme Court Rules (NT) r 13.10(5).

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Northern Territory — Local Court

7.49 In the Northern Territory Local Court, as we discussed earlier in this chapter for the courts in New South Wales, the plaintiff ’s statement of claim is a form of originating process.173 A defendant who intends to defend the claim must file a notice of defence within 28 days of being served with the statement of claim. The rules set out a number of specific requirements for specific defences such as illegality or fraud, the defence of minority, a limitations defence, discharge under the law of bankruptcy/ insolvency and the defence of tender.174 A defendant who has a claim against a plaintiff may counterclaim as part of its notice of defence and the rules apply to the counterclaim as if it were a claim by the defendant as plaintiff.175 The defendant may also claim against a third party in accordance with the third party procedure in Pt 13.176 The third party notice must include a statement of claim and be served on the third party no later than 28 days after the day on which the defendant serves its notice of defence.177 That third party then has 28 days to file and serve on the other parties its notice of defence to the statement of claim in the third party notice.178 The process in the rules does not make provision for a reply or further pleadings — if needed, the court may always give directions for them to be filed.179

173 Local Court (Civil Jurisdiction) Rules (NT) r 7.01(1). 174 Local Court (Civil Jurisdiction) Rules (NT) r 8.03(1). 175 Local Court (Civil Jurisdiction) Rules (NT) rr 9.01 and 9.02. 176 Local Court (Civil Jurisdiction) Rules (NT) Pt 13. Part 13 also sets out the procedure for claims by a defendant against another defendant in the proceedings. 177 Local Court (Civil Jurisdiction) Rules (NT) r 13.02(2). 178 Local Court (Civil Jurisdiction) Rules (NT) r 13.06. 179 Local Court (Civil Jurisdiction) Rules (NT) r 15.15(2)(c).

7.50 One noteworthy requirement in the Local Court rules is the very first requirement in Pt 5 Div 3 ‘Pleadings’ that: ‘A pleading is to: (a) be expressed in plain English and in non-technical language unless required by the nature of the claim’.180 While this language is intended to emphasise the need for pleadings to be framed as simply as possible in lower courts where cases are often less technically complex and parties are more likely to be unrepresented and usually less experienced litigators, non-technical, plain English should really be standard practice when drafting pleadings in any court.

180 Local Court (Civil Jurisdiction) Rules (NT) r 5.09(1).

Queensland

7.51 In Queensland courts, where a proceeding is commenced by way of claim, the plaintiff must attach its statement of claim to the claim form.181 The defendant then has 28 days after the claim is served to file a notice of intention to defend to which

Page 31 of 59 Chapter 7 Pleadings: Defining the Controversy

Page 276 the defendant must attach its statement of claim.182 A defendant may counterclaim against a plaintiff or a plaintiff and others with which the plaintiff is liable or where the claim is connected with the original subject matter of the proceeding.183 The defendant must serve the defence and counterclaim within the time allowed for service of the defence on the plaintiff.184 Pleadings in relation to the counterclaim continue as if the party counterclaiming were the plaintiff and the recipients of the counterclaim were defendants.185 A defendant may also claim against a third party where the claim is for a contribution or indemnity, where it relates to or is connected with the original subject matter of the proceeding or where the relief is substantially the same as some of the relief claimed by the plaintiff or where there is some common question with the original subject matter of the proceeding.186 The third party notice must attach the statement of claim and must be filed within 28 days after the time required for the defendant to have filed its defence (including some longer time for the filing of the defence agreed to by the plaintiff).187 The rules then provide that the pleadings process continues in respect of the third party proceeding in largely the same way as for the original proceeding.188 The plaintiff may then file and serve its answer to any counterclaim and any reply within 14 days of being served with the defence and counterclaim.189 To the extent a defendant to a counterclaim was not a party to the original proceedings, the defendant has 28 days to file an answer to the counterclaim.190

181 Queensland Civil Procedure Rules 1999 (Qld) r 22(2)(b). For the difference between actions commenced by way of claim and other actions, see Chapter 4, 4.91 ff. 182 Queensland Civil Procedure Rules 1999 (Qld) rr 137(1) and 139(1)(b). Note: if the claim is served interstate or the Service and Execution of Process Act 1992 (Cth) otherwise applies, the relevant time limit for filing the intention to defend under that Act applies instead. 183 Queensland Civil Procedure Rules 1999 (Qld) r 178(1). 184 Queensland Civil Procedure Rules 1999 (Qld) rr 178(2)(b) and 179. 185 Queensland Civil Procedure Rules 1999 (Qld) rr 178(4) and 181. 186 Queensland Civil Procedure Rules 1999 (Qld) r 192. 187 Queensland Civil Procedure Rules 1999 (Qld) rr 193(2)(b) and 194(1)(b). 188 See the detailed of the requirements in Queensland Civil Procedure Rules 1999 (Qld) Pt 6. 189 Queensland Civil Procedure Rules 1999 (Qld) r 164. 190 Queensland Civil Procedure Rules 1999 (Qld) r 164(1)(b).

7.52 In terms of particular requirements, similar to the rules in the Australian Capital Territory, the rules in Queensland set out a long list of matters that must be specifically pleaded:191 (1)

Without limiting rule 149, the following matters must be specifically pleaded— (a) breach of contract or trust; (b) every type of damage claimed including, but not limited to, special and exemplary damages;192 (c) defence under the Limitation of Actions Act 1974; (d) duress; (e) estoppel; (f) fraud; (g) illegality; (h) interest (including the rate of interest and method of calculation) claimed;

Page 32 of 59 Chapter 7 Pleadings: Defining the Controversy

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(i) malice or ill will; (ii) misrepresentation; (iii) motive, intention or other condition of mind, including knowledge or notice; (iv) negligence or contributory negligence; (v) payment; (vi) performance; (vii) part performance; (viii) release; (ix) undue influence; (x) voluntary assumption of risk; (xi) waiver; (xii) want of capacity, including disorder or disability of mind; (xiii) that a testator did not know and approve of the contents of a will; (xiv) that a will was not properly made; (xv) wilful default; (xvi) anything else required by an approved form or practice direction to be specifically pleaded. (2)

Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.

(3)

If the plaintiff ’s claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim— (a) particulars of the debt or liquidated demand; (b) if interest is claimed—particulars as required by rule 159; (c) the amount claimed for the costs of issuing the claim and attached statement of claim; (d) a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends; (e) a statement of the additional costs of obtaining judgment in default of notice of intention to defend.

(4)

In a defence or a pleading after a defence, a party must specifically plead a matter that— (a) the party alleges makes a claim or defence of the opposite party not maintainable; or (b) shows a transaction is void or voidable; or (c) if not specifically pleaded might take the opposite parties by surprise; or (d) raises a question of fact not arising out of a previous pleading.

(5)

If the plaintiff ’s claim starts a wrongful death proceeding, the plaintiff must state in the statement of claim the person or persons for whose benefit the claim is brought.

Specific rules also apply in some defamation cases.193 Parties are also required to provide particulars of damages194 and of any interest claimed.195

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Page 278

191 Queensland Civil Procedure Rules 1999 (Qld) r 150. 192 See also Queensland Civil Procedure Rules 1999 (Qld) r 155. 193 Queensland Civil Procedure Rules 1999 (Qld) r 174. 194 Queensland Civil Procedure Rules 1999 (Qld) r 158. 195 Queensland Civil Procedure Rules 1999 (Qld) r 159.

South Australia

7.53 In South Australia, the rules of pleading in both the Supreme Court and District Court are largely the same.196 In the Magistrates Court, in minor civil actions (neighbourhood disputes, certain minor statutory claims and monetary claims for $12,000 or less)197 short form pleading describing the dates, places, circumstances and cause of action is sufficient.198 For other matters in the Magistrates Court, the rules of pleading generally follow those of the Supreme Court.199

196 See Supreme Court Civil Rules 2006 (SA) Ch 5 Pt 2 and District Court Civil Rules 2006 (SA) Ch 5 Pt 2. 197 Magistrates Court Act 1991 (SA) s 3(2). 198 Magistrates Court (Civil Division) Rules 1998 (SA) r 24(1)(a). 199 Magistrates Court (Civil Division) Rules 1998 (SA) r 24(1)(b).

7.54 The general rule is that the plaintiff must attach its statement of claim to the originating process (a summons).200 The rules, however, also provide that the plaintiff ’s statement of claim may instead be made by way of affidavit in some cases, in which case, pleadings will continue on the basis of affidavits.201 The plaintiff may also endorse the originating process with a statement seeking an exemption from the requirement for formal pleadings, in which case the statement of claim need not be provided unless the court rejects the exemption and orders that one be provided.202 The rules also contemplate that a court may, of its own initiative, exempt the parties from filing pleadings or affidavits in substitution of pleadings including, for example, if the court instead requires the parties to file an agreed statement of issues.203 The defendant must then file its defence within 28 days of service of the plaintiff ’s statement of claim.204 In South Australia, preliminary issues, such as objections to the jurisdiction of the court, are to be raised in the defence.205 The defendant may then file a counterclaim or contribution claim against existing parties to the action in the approved form and incorporating a statement of claim, within the time allowed for filing and serving its defence.206 Alternatively, the defendant may commence an action against a third party for contribution or indemnity or for an action otherwise related to the subject matter of the existing action by filing and serving an originating process in the approved form within the time allowed for filing and serving its defence.207 Finally, a defendant may do both by filing an originating process that is in part a cross-action and in part a third party action within the time allowed for the defence.208

Page 279 The plaintiff may then file its reply within 14 days after service of the defence. Any subsequent pleadings require the leave of the court.209

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200 Supreme Court Civil Rules 2006 (SA) r 91(1); District Court Civil Rules 2006 (SA) r 91(1). For further detail on the summons, see Chapter 4, 4.98 ff. 201 Supreme Court Civil Rules 2006 (SA) r 96; District Court Civil Rules 2006 (SA) r 96. 202 Supreme Court Civil Rules 2006 (SA) r 91(2); District Court Civil Rules 2006 (SA) r 91(2). 203 Supreme Court Civil Rules 2006 (SA) r 97; District Court Civil Rules 2006 (SA) r 97. 204 Supreme Court Civil Rules 2006 (SA) r 92; District Court Civil Rules 2006 (SA) r 92. 205 Supreme Court Civil Rules 2006 (SA) rr 100(1)(a) and 100(2); District Court Civil Rules 2006 (SA) rr 100(2) and 101(1)(a). This has the potential to complicate matters under private international law rules in a number of jurisdictions as the act of defending any proceedings may be regarded as a submission to the jurisdiction of a court. 206 Supreme Court Civil Rules 2006 (SA) r 35; District Court Civil Rules 2006 (SA) r 35. 207 Supreme Court Civil Rules 2006 (SA) r 36; District Court Civil Rules 2006 (SA) r 36. 208 Supreme Court Civil Rules 2006 (SA) r 37; District Court Civil Rules 2006 (SA) r 37. 209 Supreme Court Civil Rules 2006 (SA) r 91(2); District Court Civil Rules 2006 (SA) r 91(2); Magistrates Court (Civil Division) Rules 1998 (SA) r 44(2).

7.55 The South Australian rules include the particular requirements to state the name of each cause of action pleaded,210 the basis of each cause of action (including any statutory provisions that apply)211 and to set out specifically which facts and matters relate to which cause of action.212 The South Australian rules also explicitly set out some of the effects of pleadings by outlining that the court’s permission is required before evidence is adduced of facts that should have been but were not included in a party’s pleadings or issues are raised at trial of which notice should have been given by way of pleadings.213 The rules provide a number of particular requirements in cases where damages are claimed for personal injury214 and in liquidated debt claims.215

210 Supreme Court Civil Rules 2006 (SA) r 99(1)(a); District Court Civil Rules 2006 (SA) r 99(1)(a). 211 Supreme Court Civil Rules 2006 (SA) r 99(1)(b); District Court Civil Rules 2006 (SA) r 99(1)(b). 212 Supreme Court Civil Rules 2006 (SA) r 99(2); District Court Civil Rules 2006 (SA) r 99(2). 213 See Supreme Court Civil Rules 2006 (SA) r 103; District Court Civil Rules 2006 (SA) r 103. 214 Supreme Court Civil Rules 2006 (SA) rr 99(3) and 106; District Court Civil Rules 2006 (SA) rr 99(3) and 106. 215 Supreme Court Civil Supplementary Rules 2014 (SA) r 74; District Court Civil Supplementary Rules 2014 (SA) r 74.

South Australia — Fast Track Stream

7.56 In similar fashion to the Federal Court, the South Australian Supreme and District Courts operate a ‘Fast Track Stream’ ‘for the resolution of civil disputes in straight forward cases … [providing for] a more expeditious and less expensive determination’.216 The Fast Track Stream is generally for cases where (a) the combined quantum of the claim and counterclaim is up to $250,000 and (b) the trial of the proceedings is not expected to take longer than three days.217 The stream may, however, be appropriate in other straightforward cases, in the court’s discretion.218 While the Fast Track Rules 2014 (SA) set out a number of simplified procedures for more efficient resolution of disputes, unlike in the Federal Court, the South Australian rules generally apply the usual pleadings process:219 (1)

Subject to subrules (2) to (5), the pleadings are governed by the General Civil Rules.220

Page 35 of 59 Chapter 7 Pleadings: Defining the Controversy (2)

The originating process for an action, cross action or third party action is to be accompanied by a pleading and not an affidavit in lieu of a pleading. However, if the proceeding is transferred into the Fast Track Stream after having proceeded on

Page 280   affidavits in lieu of pleadings, unless the Court otherwise orders, it is to continue on affidavits in lieu of pleadings. (3)

The pleadings are to be expressed simply and concisely, identify the issues in dispute and give to the other parties notice of the case to be met.

(4)

A pleading of an action, cross action or third party action is to quantify all claims whether liquidated or unliquidated. …

The court does, however, maintain the discretions outlined above to do away with formal pleadings and, for example, order the parties to file affidavits or to agree a statement of issues, in appropriate cases.

216 Supreme Court Fast Track Rules Adoption Rules 2014 (SA) Sch 1 and District Court Fast Track Rules Adoption Rules 2014 (SA) Sch 1 (‘Fast Track Rules 2014 (SA)’) r 3. 217 Fast Track Rules 2014 (SA) r 10(2). 218 See Fast Track Rules 2014 (SA) r 14. 219 See Fast Track Rules 2014 (SA) r 15. 220 General Civil Rules meaning, in the Supreme Court, the Supreme Court Civil Rules 2006 (SA), in the District Court, the District Court Civil Rules 2006 and in the Magistrates Court, the Magistrates Court (Civil) Rules 2013.

Tasmania — Supreme Court

7.57 For proceedings commenced by writ in the Supreme Court of Tasmania,221 the plaintiff ’s statement of claim must be filed and served on the defendant either together with the writ or within 21 days of the date on which the defendant enters an appearance.222 The defendant then has 21 days after the later of (a) the delivery of the statement of claim and (b) the time for filing a notice of appearance, to file its defence in a separate part headed ‘counterclaim’.223 A defendant may also counterclaim against the plaintiff together with another person who is not already a party to the proceedings, in which case the defendant must serve the defence on the non-party together with a notice in the prescribed form in the same manner as if it were a writ.224 The procedure for the counterclaim against the non-party then follows largely the same process as for the original claim.225 The defendant may counterclaim against the plaintiff in the defence.226 A defendant may also initiate a claim against a non-party by way of a third party notice to claim contribution or indemnity or any relief related to, or connected with, the original subject matter of the action.227 The defendant may file and serve a third party notice without leave within 30 days after delivery of the defence or otherwise at any time with the leave of the court.228 As for the counterclaim against a non-party, the procedure for the claim against a third party then follows largely the same process as for the original claim.229 The plaintiff has 21 days after delivery of the defence or defence and counterclaim to file a reply and, if applicable, a defence to counterclaim.230 Unlike other jurisdictions where the leave of the court is required for the filing of pleadings beyond a reply, the rules in Tasmania prescribe that:231

Page 281  

Page 36 of 59 Chapter 7 Pleadings: Defining the Controversy (1) Subject to subrule (2), pleadings are to continue until the substantial matter in dispute between the parties has been definitively shown by the pleadings. (2) A party who in a pleading subsequent to a defence or to a reply to a counterclaim would, if he or she were to deliver the pleading, merely deny or not admit the facts alleged in the immediately preceding pleading is not to deliver any such pleading. (3) At the expiration of the period limited for the delivery of any such pleading — (a) every material fact alleged in the immediately preceding pleading is taken to have been denied; and (b) issue is taken to have been joined on every allegation; and (c) the pleadings as between the relevant parties are closed. The rules include specific requirements for personal injuries claims,232 for building disputes (and the filing of a ‘Scott Schedule’)233 and defamation actions.234

221 For the difference between actions commenced by writ and other actions, see Chapter 4, 4.101 ff. 222 Supreme Court Rules 2000 (Tas) r 256(2). Chapter 6, 6.23 provides detail on the timeframes for a defendant to enter its appearance. 223 Supreme Court Rules 2000 (Tas) r 266(1). 224 Supreme Court Rules 2000 (Tas) r 195. 225 See Supreme Court Rules 2000 (Tas) r 197. 226 Supreme Court Rules 2000 (Tas) r 192. 227 Supreme Court Rules 2000 (Tas) r 202(1). 228 Supreme Court Rules 2000 (Tas) r 202(2). 229 See Supreme Court Rules 2000 (Tas) Div 15. 230 Supreme Court Rules 2000 (Tas) r 267. 231 Supreme Court Rules 2000 (Tas) r 228. 232 Supreme Court Rules 2000 (Tas) r 253A. 233 Supreme Court Rules 2000 (Tas) Div 18. 234 Supreme Court Rules 2000 (Tas) Div 18A.

Tasmania — Magistrates Court

7.58 In the Tasmanian Magistrates Court, the rules of pleading are the same as those in the Supreme Court except where the rules specifically provide otherwise.235 The rules provide that:236 … (2)

Any pleading beyond a reply is not allowed except with the leave of the Court.

(3)

A natural person who denies personal liability on the ground that the liability was incurred or assumed by or on behalf of another person or a body of persons, corporate or unincorporate, is to plead all material facts or circumstances – (a) from which the liability of the other person or body of persons may be inferred; and (b) identifying when, where and how the other person or body of persons incurred or assumed the liability.

Page 37 of 59 Chapter 7 Pleadings: Defining the Controversy A party who alleges that the parties are bound by a quotation is to plead all material facts or circumstances identifying by whom, when, where and how the quotation was made.

Relevantly, the rules also provide that: •

the defence must be filed within 21 days after service of the claim commencing the action;237

•

any objection to the jurisdiction of the Magistrates Court is made by application at the same time as the filing of the defence;238

Page 282   •

a counterclaim is to be filed in the approved form and at the same time as the defence is filed and the claimant then has 14 days after service of the counterclaim to file a defence to counterclaim;239

•

any third party claim must be filed at the same time as the defence, following which, the rules apply as if the defendant to the third party claim were a defendant to an original action;240 and

•

if there are multiple defendants to an action, each defendant is taken to claim contribution from each other defendant.241

Additional specific requirements in the rules apply to personal injuries actions.242

235 Magistrates Court (Civil Division) Rules 1998 (Tas) r 44(1). 236 Magistrates Court (Civil Division) Rules 1998 (Tas) r 44(2)–(4). 237 Magistrates Court (Civil Division) Rules 1998 (Tas) r 48. 238 Magistrates Court (Civil Division) Rules 1998 (Tas) r 49. As noted in the context of the South Australian rules as well, this has the potential to complicate matters under private international law rules in a number of jurisdictions as the act of defending any proceedings may be regarded as a submission to the jurisdiction of a court. 239 Magistrates Court (Civil Division) Rules 1998 (Tas) rr 50 and 51. 240 Magistrates Court (Civil Division) Rules 1998 (Tas) r 52. 241 Magistrates Court (Civil Division) Rules 1998 (Tas) r 53(1). 242 Magistrates Court (Civil Division) Rules 1998 (Tas) r 29.

Victoria — Supreme and County Courts

7.59 In Victoria, the pleadings process is largely the same across the Supreme and County Courts and a slightly simplified process applies in the Magistrates’ Court, which is outlined below.243 In the Supreme and County Courts, the pleadings process applies to proceedings commenced by writ.244 The plaintiff may either endorse the writ with the plaintiff ’s statement of claim, or the plaintiff may provide a statement providing sufficient particularity of the nature of the claim, the cause thereof and the remedy sought, in which case the plaintiff must serve a statement of claim within 30 days of the defendant’s appearance.245 If the statement of claim was endorsed on the writ the defendant must serve a defence within 30 days after filing its appearance and otherwise within 30 days after service of the statement of claim.246 The defendant may counterclaim against the plaintiff or against the plaintiff and another person by filing a counterclaim together with its defence as a ‘defence and counterclaim’.247 The plaintiff must serve a reply and any defence to counterclaim within 30 days after service of the defence/defence and counterclaim.248 Further pleadings require the

Page 283

Page 38 of 59 Chapter 7 Pleadings: Defining the Controversy leave of the court.249 The defendant may also commence a claim against a third party for contribution or indemnity, for a remedy relating to the original subject matter of the proceeding and substantially the same as that claimed by the plaintiff or where there is a comment question relating to the original subject matter of the proceeding, by serving a third party notice.250 A third party notice is to be filed within 30 days of the time limited for service of the defence (or later with the leave of the court) and must be served on the third party within 60 days after it is filed.251 Pleadings in the third party claim then proceed in much the same manner as for the original claim.252

243 See Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 10, 11, 13 and 14; County Court Civil Procedure Rules 2008 (Vic) Os 10, 11, 13 and 14; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) Os 8, 10, 11 and 13. 244 Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 5, 13 and 14; County Court Civil Procedure Rules 2008 (Vic) Os 13, 14 and 15. The different forms of originating process in Victoria are considered in Chapter 4, 4.106 ff. 245 Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.04, 14.01 and 14.02; County Court Civil Procedure Rules 2008 (Vic) rr 5.04, 14.01 and 14.02. The timeframes for entering an appearance are considered in Chapter 6, 6.26. 246 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.04; County Court Civil Procedure Rules 2008 (Vic) r 14.04. 247 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.04; County Court Civil Procedure Rules 2008 (Vic) r 14.04. The process for the progression of the counterclaim is largely the same as for the original claim and is outlined in Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 10; County Court Civil Procedure Rules 2008 (Vic) O 10. 248 Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 14.05 and 14.07; County Court Civil Procedure Rules 2008 (Vic) rr 14.05 and 14.07. 249 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.06; County Court Civil Procedure Rules 2008 (Vic) r 14.06. 250 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.01; County Court Civil Procedure Rules 2008 (Vic) r 11.01. 251 Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 11.04–11.07; County Court Civil Procedure Rules 2008 (Vic) rr 11.04–11.07. 252 See the remainder of Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 11; County Court Civil Procedure Rules 2008 (Vic) O 11.

7.60 The rules include the following requirements for matters that must be specifically pleaded:253 (1)

A party shall in any pleading subsequent to a statement of claim plead specifically any fact or matter which— (a) the party alleges makes any claim or defence of the opposite party not maintainable; or (b) if not pleaded specifically, might take the opposite party by surprise; or (c) raises questions of fact not arising out of the preceding pleading.

(2)

In a proceeding for the recovery of land— (a) the indorsement of claim on the writ or, if that indorsement does not constitute a statement of claim, the statement of claim shall describe the land so that it is physically identifiable; (b) the defendant shall plead specifically every ground of defence on which the defendant relies and a plea that the defendant or the defendant’s tenant is in possession of the land is not sufficient.

(3)

A claim for exemplary damages shall be specifically pleaded together with the facts on which the party pleading relies.

Page 39 of 59 Chapter 7 Pleadings: Defining the Controversy Certain particulars must also be included:254 •

of any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence;

•

of any alleged disorder or disability of mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice;

•

in claims seeking damages for bodily injury; and

•

in proceedings for libel.

Page 284 In all Victorian courts, the pleading party’s legal representative or, if none, the party itself, must file a ‘proper basis certification’ with the court confirming that each allegation, denial or non-admission of a fact in its pleadings has a proper basis.255 This is discussed further below at 7.82.

253 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.07; County Court Civil Procedure Rules 2008 (Vic) r 13.07. 254 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.10; County Court Civil Procedure Rules 2008 (Vic) r 13.10. 255 Civil Procedure Act 2010 (Vic) s 42.

Victoria — Magistrates’ Court

7.61 The pleadings process applies to complaints in the Magistrates’ Court.256 The statement of claim must be included in the complaint.257 A defendant includes its defence along with its appearance (called a notice of defence in the Magistrates’ Court),258 which is to be served within the period provided in the complaint.259 A defendant may counterclaim against a plaintiff by filing and serving a counterclaim on that plaintiff within 21 days after the notice of defence is given.260 A defendant may also counterclaim against one or more other persons in addition to a plaintiff.261 The counterclaim must be served on other persons who are already party to the proceedings within 21 days after the notice of defence is given and within 51 days after the notice of defence is given for other persons who are not already party to the proceedings.262 A plaintiff may file and serve a reply within 21 days after service of the notice of defence. In the same circumstances as outlined above for the Supreme and County Courts,263 a defendant may claim against a third party by filing a third party notice endorsed with a statement of claim,264 within 30 days of giving its notice of defence.265 The third party notice must be served on the third party within 30 days after it is filed.266 The third party action then continues in much the same way as the original complaint.267

256 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) Os 5, 9 and 13. 257 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 5.02(3). 258 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 8.03(2)(b). 259 The minimum timeframes that may be specified in the complaint differ depending on where the defendant was served with the complaint: see Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 8.01. 260 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 10.02. 261 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 10.03. 262 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 10.04(2). 263 See 7.59. Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 11.01. 264 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 11.02.

Page 40 of 59 Chapter 7 Pleadings: Defining the Controversy 265 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 11.05(2)(a). 266 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 11.07(1). 267 See the remaining provisions of Magistrates’ Court General Civil Procedure Rules 2010 (Vic) O 11.

Western Australia

7.62 In the Western Australian courts, the rules of pleadings are largely identical in both the Supreme Court and District Court.268 The Magistrates Court, however, sets out a simpler, less prescriptive pleadings regime.269 In the Supreme and District

Page 285 Courts, a plaintiff ’s statement of claim may generally be endorsed on the writ270 and otherwise must be served on the defendant either at the same time as the writ or within 14 days after the defendant enters an appearance.271 The defendant must serve its defence on the plaintiff within 14 days after the later of the time for entering its appearance or the date the statement of claim is served on the defendant.272 A defendant may add a counterclaim against the plaintiff, or against the plaintiff and one or more additional parties liable with the plaintiff, in the defence.273 A defendant may also bring a claim against a third party to the proceedings where the defendant is claiming an entitlement to contribution or indemnity, to any relief connected with the original subject matter of the action and substantially the same as a remedy claimed by the plaintiff, or if there is some common question or issue with the original subject matter that should properly be determined between all the parties.274 A third party claim may be made without leave only if the notice is issued before the defendant serves its defence on the plaintiff.275 Once initiated, the rules generally apply to a counterclaim against a non-party or a third party claim, as if it were an initial claim.276 Any reply and any defence to counterclaim must be served by the plaintiff on the defendant within 14 days after the date the defence or defence and counterclaim was served on the plaintiff.277 Pleadings beyond a reply require the leave of the court.278 All pleadings must be filed with the court before they are served.279

268 See Rules of the Supreme Court 1971 (WA) O 20; District Court Rules 2005 (WA) r 6(1). 269 See Magistrates Court (Civil Proceedings) Rules 2005 (WA) Pt 2. 270 Exceptions apply where the claim contains an allegation of fraud or a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage (Rules of the Supreme Court 1971 (WA) O 6 r 3). 271 Rules of the Supreme Court 1971 (WA) O 20 r 1. 272 Rules of the Supreme Court 1971 (WA) O 20 r 4. 273 Rules of the Supreme Court 1971 (WA) O 18 rr 2(1) and 3. 274 Rules of the Supreme Court 1971 (WA) O 19 r 1(1). 275 Rules of the Supreme Court 1971 (WA) O 19 r 1(2). 276 Rules of the Supreme Court 1971 (WA) O 18 r 3(4); O 19 r 3(3) and the remainder of O 19. 277 Rules of the Supreme Court 1971 (WA) O 20 r 5. 278 Rules of the Supreme Court 1971 (WA) O 20 r 6. 279 Rules of the Supreme Court 1971 (WA) O 20 r 3.

7.63 The rules require that the following matters must be specifically pleaded:280

Page 41 of 59 Chapter 7 Pleadings: Defining the Controversy •

performance, release, statute of limitation, fraud or any fact showing illegality;

•

in an action for possession of land every ground of defence on which the defendant relies;

•

a claim for exemplary or aggravated damages together with the facts on which the pleading party relies; and

•

details of any interest claimed.

The rules also specifically require that particulars be included of: •

any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence;281

Page 286   •

any alleged condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge;282

•

the basis of the claim and of certain defences in defamation actions.283

280 Rules of the Supreme Court 1971 (WA) O 20 r 9. 281 Rules of the Supreme Court 1971 (WA) O 20 r 13(1)(a). 282 Rules of the Supreme Court 1971 (WA) O 20 r 13(1)(b). 283 Rules of the Supreme Court 1971 (WA) O 20 r 13A.

7.64 In the Magistrates Court, the statement of claim may be either lodged and served with the claim or within 14 days after the defendant indicates its intention to defend the claim.284 The rules simply require that the statement of claim must:285 … contain all of the following – (a)

a summary of the facts relevant to the claim;

(b)

the legal basis of the claim;

(c)

the basic contentions of the party;

(d)

the remedy or relief claimed;

(e)

if the amount of the claim has been reduced in order to bring the claim within the jurisdictional limit, a statement to that effect.

A defendant must lodge and serve its defence either with its response to claim (appearance)286 or within 14 days after the defendant has been served with the statement of claim.287 The rules provide that:288 … the statement of defence must contain all of the following – (a)

a summary of the facts relevant to the defence;

(b)

the legal basis of the defence;

(c)

the basic contentions of the party;

Page 42 of 59 Chapter 7 Pleadings: Defining the Controversy (d)

the details of anyone who the party alleges is liable for the claim and the grounds upon which the party so alleges.

A defendant may lodge and serve a counterclaim or third party claim together with its statement of defence.289 The rules do not explicitly provide for a reply or further pleadings.

284 Magistrates Court (Civil Proceedings) Rules 2005 (WA) rr 7(3) and 7A(1). 285 Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 7A(3). 286 Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 9(1A). 287 Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 10(1). 288 Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 10(3). 289 Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 8.

Amendment of pleadings The power to amend

7.65 It is no exaggeration to say that a party does not fully understand its own case until the party sees its opponent’s response to it. Upon receipt of the defence, the claimant may realise that it has failed to state a material fact, or upon receiving the claimant’s reply the defendant may realise that its defence is flawed. Given the

Page 287 importance that the common law attaches to deciding the real issues between the parties and to reaching correct outcomes, it is only to be expected that the rules should allow the parties to make timely amendments with relative ease. However, the court must ensure that the amendment procedure is used consistently with the objectives of proportionality, expedition, and the proper use of court resources.

7.66 The court rules generally allow a party to amend its statement of claim or defence once, or multiple times if the other parties agree, before the close of pleadings (the date the last pleadings document is due to be filed — usually the date of the reply) or, in some jurisdictions, by another specified deadline, without the leave of the court.290 It is, after all, for the parties to decide what the issues are, not for the court. Otherwise, pleadings may be amended only with leave of the court.291 Consequential amendments to later pleadings will be permitted wherever earlier pleadings are amended (for example, if the statement of claim is amended, the defendant will be given a certain amount of time to amend its defence).292

290 Federal Court Rules 2011 (Cth) r 16.51; Court Procedures Rules 2006 (ACT) r 505; Uniform Civil Procedure Rules 2005 (NSW) r 19.1(1); Supreme Court Rules (NT) r 36.03; Uniform Civil Procedure Rules 1999 (Qld) r 378; Supreme Court Civil Rules 2006 (SA) r 54(4) and (5); District Court Civil Rules 2006 (SA) r 54(4) and (5); Magistrates Court (Civil) Rules 2013 (SA) r 24(1)(c);Supreme Court Rules 2000 (Tas) rr 428–430; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.03 and 36.04; County Court Civil Procedure Rules 2008 (Vic) rr 36.03 and 36.04; Rules of the Supreme Court 1971 (WA) O 21 rr 1 and 3; District Court Rules 2005 (WA) r 48A. 291 Federal Court Rules 2011 (Cth) r 16.53; Court Procedures Rules 2006 (ACT) r 502; Civil Procedure Act 2005 (NSW) s 64; Supreme Court Rules (NT) r 36.01(1); Local Court (Civil Jurisdiction) Rules (NT) r 5.15(2)(a); Uniform Civil

Page 43 of 59 Chapter 7 Pleadings: Defining the Controversy Procedure Rules 1999 (Qld) r 375(1); Supreme Court Civil Rules 2006 (SA) rr 54(4)(a); District Court Civil Rules 2006 (SA) r 54(4)(a); Magistrates Court(Civil) Rules 2013 (SA) r 80(1); Supreme Court Rules 2000 (Tas) r 427; Magistrates Court (Civil Division) Rules 1998 (Tas) r 45; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.01; County Court Civil Procedure Rules 2008 (Vic) r 36.01; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 36.01; Rules of the Supreme Court 1971 (WA) O 21 r 5; Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 40(2)(d). 292 Federal Court Rules 2011 (Cth) rr 16.55, 16.56 and 16.57; Court Procedures Rules 2006 (ACT) r 512; Uniform Civil Procedure Rules 2005 (NSW) r 19.1(2); Supreme Court Rules (NT) r 36.06; Uniform Civil Procedure Rules 1999 (Qld) r 385; Supreme Court Civil Rules 2006 (SA) r 55; District Court Civil Rules 2006 (SA) r 55; Magistrates Court (Civil) Rules 2013 (SA) r 24(1)(c); Supreme Court Rules 2000 (Tas) r 434; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.06; County Court Civil Procedure Rules 2008 (Vic) r 36.06; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 36.07; Rules of the Supreme Court 1971 (WA) O 21 r 3(2). Where pleadings are amended with the leave of the court, the court should provide for consequential amendments at the time of granting leave.

Late amendments

7.67 There are many circumstances that may lead a party to seek the leave of the court to amend its pleadings. New evidence may have been uncovered (for example, as part of discovery), new court judgments may have been handed down, new arguments may have been devised or certain matters may have been resolved with the other side, and, in that light, the party wishes to amend the framing of its case. Historically, late amendment of pleadings was readily permitted, usually conditional on the party

Page 288 seeking to make the amendment agreeing to pay the additional costs arising from the amendment.293 This stemmed from the idea that the role of the court is to determine the real issues in dispute between the parties — if the amendment would achieve that end, it was ordinarily to be permitted. Today, however, the approach is markedly different.

293 See Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155; [1997] HCA 1 McHugh JJ.

per Dawson, Gaudron and

7.68 Clearly, in some cases leave to amend will be in all parties’ (including the court’s) interests, such as where the parties have resolved issues formerly in dispute. However, it is easy to conceive of situations where late amendments could undermine the overriding objective. If the amendment would be to add something that would be liable to be struck out or would be to add a claim or defence that was unlikely to succeed, this would simply be a waste of resources and so leave will not normally be given.294 If a party seeks to amend its pleadings to introduce a new substantive cause of action only a few days before the scheduled commencement of trial that might easily delay final resolution of the dispute and might cause significant expense to be incurred.295 Under the overriding objective, it is now incumbent on the court to have regard not only to the need to arrive at correct decisions but also to the need for expeditious resolution and the need to spare litigant and court resources. Where an amendment is sought close to the trial date, a key consideration for the court will be whether the amendment would make adjournment of the trial inevitable. The court will also take into consideration whether the party seeking to amend could and should have raised the point earlier. Accordingly, the court must strike a balance. The injustice to the party seeking the amendment if the amendment were refused, is to be weighed against any disadvantage that the other party may suffer from the late amendment or any waste of court resources, resulting from the late amendment. Justice Lindsay has observed:296 The mindset of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 … according to which an amendment of pleadings was ordinarily allowed upon submission to an order for costs and an adjournment, has given way to the rigour of

Page 44 of 59 Chapter 7 Pleadings: Defining the Controversy AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 of case management imperatives in the just, quick and cheap resolution of real issues.

, insistent upon enforcement

294 Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320 at [21]–[22] per Kenny J. 295 See Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 854

.

296 Justice Geoff Lindsay (Supreme Court of New South Wales), Pleadings and Case Management, Seminar, 2015 Judges’ Series of Seminars, The College of Law, 5 November 2015 at [35].

7.69 The leading Australian case on the implications of the overriding objective in modern litigation, AON Risk Services Australia Ltd v Australian National University,297 involved an application for leave to amend pleadings. On the third day of a four-week trial, ANU sought leave to amend its statement of claim to add a significant additional

Page 289 claim. Both at first instance and on appeal to the Court of Appeal of the Supreme Court of the Australian Capital Territory, leave to amend was granted on the basis that the High Court had previously held in Queensland v JL Holdings Pty Ltd that:298 [I]t ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. … Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.

The High Court in AON Risk Services, however, departed from this approach and held that leave to amend should have been refused. French CJ underscored that it should have been taken into account that:299 … whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed.

Gummow, Hayne, Crennan, Kiefel and Bell JJ held that:300 … a just resolution of proceedings remains the paramount purpose of r 21; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.

Page 45 of 59 Chapter 7 Pleadings: Defining the Controversy The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

There are, however, no hard and fast rules when it comes to deciding whether or not leave should be granted for a late amendment to pleadings. In exceptional

Page 290 circumstances, an amendment may even be allowed after the trial,but before final judgment is entered in the case.301

297 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 298 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154–5; [1997] HCA 1 McHugh JJ.

.

per Dawson, Gaudron and

299 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 at [5] French CJ.

per

300 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 at [98] Gummow, Hayne, Crennan, Kiefel and Bell JJ.

per

301 Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70 at [6]

per Murphy, Wilson, Brennan, Deane and

Dawson JJ, citing Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 111,112,127; [1956] HCA 45

.

Changes to causes of action and limitations periods

7.70 Amendments to pleadings may consist not just of changing the grounds of the party’s case but also of adding or removing causes of action and of adding, removing or substituting parties. The topics of joining multiple causes of action or proceedings and of adding or substituting parties and its interaction with limitations periods will be considered further in Chapter 13. In this chapter, we will focus on the issues around amending pleadings to add, remove or substitute a cause of action after the relevant limitations period has expired.

The common law

7.71 At common law, the orthodox view is that an amendment to pleadings is to be regarded as having effect from the date of the original pleadings, rather than taking effect from the date of the amendment.302 This is known as the doctrine of ‘relation back’.303 But difficulty arises where the limitation period for a new cause of action that is raised by way of amendment has expired since the commencement of the proceedings. Statutory rules of limitation are a critical part of our civil justice system.They provide citizens with freedom from litigation after a statutory period (which normally begins when the cause of action arises) has elapsed. A person is therefore entitled to assume that once this period has expired they will have a complete defence and that there is no further need to keep records or take any other steps to protect their position. It would normally be unjust to deprive a defendant of an accrued limitation defence and expect it to defend an action which it had been entitled to assume was no longer possible. If the doctrine of ‘relation back’ applies, permitting the party to make the amendment would do just that. To address

Page 46 of 59 Chapter 7 Pleadings: Defining the Controversy this injustice, the common law developed a principle which came to be known as ‘the rule in Weldon v Neal’, which holds that amendments to pleadings to add a statute-barred cause of action are not permissible:304

Page 291   We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof as at the date of the amendment, would be barred by the statute of limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and take away an existing right from the defendant, proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.

302 Despite some recent statements of the Court of Appeal of the Supreme Court of Western Australia (see Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 ), there are numerous appellate decisions in different Australian jurisdictions supporting the existence of this principle (see, for example, Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63; [2003] VSCA 6 at [33]–[44] per Ormiston JA (with whom Chernou JA and O’Bryan AJA agreed) (reversed on separate grounds by the High Court — see [2005] HCA 38 at [57]); Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251 at [46],[54]–[59] Falcinella Pty Ltd v Hamilton [2015] SASCFC 5 at [10] (1991) 173 CLR 231; [1991] HCA 45 at [7]

per Mason P (with whom Beazley JA agreed); B & P

; and see also Bridge Shipping Pty Ltd v Grand Shipping SA

per Dawson J.

303 See Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6 at [37]–[44] per Ormiston JA (with whom Chernov J and Bryan AJA agreed); see also the discussion in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127

.

304 Weldon v Neal (1887) 19 QBD 394

at 395

per Lord Esher MR (with whom Lindley and Lopes LJJ agreed),

quoted in B & P Falcinella Pty Ltd v Hamilton [2015] SASCFC 5 at [11]

per Kourakis CJ, Blue and Parker JJ; see

also Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 at [7] per Dawson J; the heading to Limitation of Actions Act 1958 (Vic) s 34 which reads ‘Abrogation of rule in Weldon v. Neal (1887) 19 Q.B.D.394’.

7.72 There are, however, situations where it would be more unjust to deny a party the right to amend its pleadings to add a claim that may have become statute-barred since the commencement of proceedings. This is usually where the cause of action arises out of the facts already pleaded. The reason for this is not difficult to fathom: in such circumstances the defendant is already on notice that the pleaded facts are alleged to give rise to liability on the defendant’s part. Adding a new cause of action does not disturb the defendant’s reasonable expectation of closure and does not therefore inflict an injustice on the defendant. By contrast, refusing an amendment purely because the limitation period has expired in respect of the new cause of action would cause injustice to the plaintiff as it would be disproportionate to the aims of the limitation period, which is to protect legitimate expectations of closure. It is not the aim of the limitation of action regime to trip up plaintiffs who have brought proceedings within the limitation period but who misdescribed their cause of action, or failed to mention a cause of action which arose out of the pleaded facts. A balance must clearly be struck between these competing demands of justice.305

Page 47 of 59 Chapter 7 Pleadings: Defining the Controversy 305 See further Parsons v George [2004] 3 All ER 633; [2004] 1 WLR 3264 Dyson LJ.

; [2004] EWCA Civ 912 at [8]–[9]

per

Under statute

7.73 A statutory provision was adopted in England in 1980 with the aim of striking a fairer balance to avoid rigidly holding a party to the precise wording of its pleadings while paying deference to the certainty of statutory periods of limitation.306 The statutory rule permits the court to grant leave for a party to amend its pleadings to include a cause of action that has become statute-barred since commencement where the cause of action arises out of the same, or substantially the same,facts as those already included in the pleadings.307 This formulation has broadly been adopted

Page 292 across Australia.308 The rule raises two key questions: (1) when will an amendment be regarded as adding a ‘new cause of action’? And (2) in what circumstances is a cause of action regarded as ‘arising out of the same, or substantially the same,facts’?

306 Limitation Act 1980 (UK) s 35 and Rules of the Supreme Court (UK) O 15 r 6 (repealed); see Roberts (FC) v Gill & Co Solicitors [2011] 1 AC 240 ; [2010] UKSC 22 at [27]–[34] per Lord Collins. This statute aimed to clarify the law after a number of exceptions had begun to appear in the jurisprudence: Roberts (FC) v Gill & Co Solicitors [2011]1 AC 240

; [2010] UKSC 22 at [26]

[1969] 1 WLR 1533

per Lord Collins, citing Braniff v Holland & Hannen and Cubitts (Southern) Ltd

and Brickfield Properties Ltd v Newton [1971] 1 WLR 862

Investments Ltd v Cussins (Contractors) Ltd [1969] 1 WLR 1

at 5

, not following Chatsworth

per Lord Denning MR.

307 Limitation Act 1980 (UK) s 35(5)(a). 308 Federal Court of Australia Act 1976 (Cth) s 59(2B) and s 33K in the context of representative proceedings and Federal Court Rules 2011 (Cth) r 8.21(2) — this provision appears in the context of amendment to an originating application rather than pleadings, which is suggested to be a lacuna in the drafting of the rules, but the court has held that it nevertheless would apply this approach when considering amendment of pleadings (Voxson Pty Ltd v Telstra Corp Ltd (No 7) [2017] FCA 267 at [16]–[21] per Perram J); Federal Circuit Court of Australia Act 1999 (Cth) s 82(2) and Federal Circuit Court Rules 2001 (Cth) r 7.03(4)(b); Court Procedures Rules 2006 (ACT) r 503(4)(b); Civil Procedure Act 2005 (NSW) s 65(2)(c); Civil Proceedings Act 2011 (Qld) s 16 and Uniform Civil Procedure Rules 1999 (Qld) r 376(4)(b); Supreme Court Civil Rules 2006 (SA) r 54(7)(a); District Court Civil Rules 2006 (SA) r 54(7)(a); Rules of the Supreme Court 1971 (WA) O 21 r 5, though see Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 . The provision in the Northern Territory, Tasmania and Victoria is slightly different; it states that an amendment is only allowed to introduce a new cause of action where it would not prejudice the defence in a way that could not be remedied by an adjournment, an award of costs or otherwise (Limitation Act (NT) s 48A and Supreme Court Rules (NT) r 36.01(6); Supreme Court Rules 2000 (Tas) r 427(2A); Limitation of Actions Act 1958 (Vic) s 34 and Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.01(3); Limitation of Actions Act 1958 (Vic) s 34 and County Court Civil Procedure Rules 2008 (Vic) r 14.03(2)). It is unclear why this different wording was chosen as opposed to the wording adopted in the other states and in England (Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6 at [45] ). It has been noted that prejudice here refers to prejudice in the conduct of the trial rather than to prejudice inherent in allowing a claim to be litigated that would otherwise have been statute-barred (Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield [2003] VSCA 6 at [50] ). The alternative formulation has, nevertheless, been interpreted to have the same effect as the wording in the other jurisdictions — that amendment will be permitted where ‘the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded’ (Agtrack (NT) Pty Ltd(t/as Spring Air) v Hatfield [2003] VSCA 6 at [52]

7.74

).

Page 48 of 59 Chapter 7 Pleadings: Defining the Controversy Taking these questions in turn, a commonly cited definition of what constitutes a ‘cause of action’ comes from Cooke v Gill:309 ‘Cause of action’ has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed.

Or formulated slightly differently:310 A ‘cause of action’ is ‘… the fact or combination of facts which gives rise to a right to sue’.

The cases, however, highlight that these definitions cannot be applied too strictly or otherwise every amendment to a statement of claim or a counterclaim would be regarded as adding a new cause of action. As McMurdo J has observed:311

Page 293   The term ‘cause of action’ was defined in Cooke v Gill as being ‘every fact which is material to be proved to entitle the plaintiff to succeed’, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland subsequently endorsed as a ‘fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended’. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described.

Similarly, Lyons J outlines:312 Rule 376(4) identifies a test for the grant of leave to amend a pleading where the amendment will add a cause of action which may be described as ‘new’. One of the purposes of this provision is to distinguish between cases where the amendment introduces a ‘new’ cause of action, and those where this does not occur. It plainly contemplates that leave will be sought to make amendments which would not add a ‘new’ cause of action to the proceeding. It seems to me unlikely that the test found in this provision was intended to apply to all cases where the amendment would change the facts alleged: pleadings are primarily concerned with the allegation of material facts. For the purposes of r 376(4), it seems to me that a cause of action is not ‘new’, if it is reasonably apparent from a party’s pleadings, prior to the amendment, that the party sought to raise that cause of action.

309 Cooke v Gill (1873) LR 8 CP 107

at 116

per Brett J, quoted approvingly in Wardley Australia Ltd v Western

Australia (Rothwells Loan case) (1992) 175 CLR 514; [1992] HCA 55 at [40] Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17 at 245

per Toohey J; and in Do Carmo v Ford

per Wilson J.

310 Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400 at 413–14; [2006] NSWCA 164 at [68] Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17 at 245 Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques [2017] QSC 251 at [15]

per McColl JA, quoting Do

per Wilson J; quoted approvingly in per Jackson J.

Page 49 of 59 Chapter 7 Pleadings: Defining the Controversy 311 Borsato v Campbell [2006] QSC 191 at [8] Ltd v Commonwealth [2014] FCA 1133 at [35]

per McMurdo J (footnotes omitted), quoted approvingly in Clasul Pty per Gleeson J.

312 Westpac Banking Corporation v Hughes [2011] QCA 42 at [26] per Chesterman JA, quoting the primary judge in Hughes v Westpac Banking Corporation [2010] QSC 274 at [14] Pty Ltd v Mount Isa Mines Ltd [2017] QCA 259 at [54]

per Lyons J; quoted approvingly in CMA Assets

.

7.75 If it is determined that the amendment introduces a new cause of action, the next question is whether that cause of action arises ‘out of the same, or substantially the same, facts’. Clearly, ‘substantially the same facts’does not mean ‘the same facts’.313 The courts have observed that this test, as for the first test, is largely and often a question of degree, involving ‘matter[s] of impression’.314 Gleeson J articulates the starting propositions as follows:315 (1) The rules require the Court to focus on the facts currently pleaded and to determine whether the new legal foundation for the claim arises out of the same, or substantially the same facts: Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation) [2013] FCA 1027 at [38] ; Darcy v Medtel Pty Limited (No 3) [2004] FCA 807 at [30] ; (2) The question is whether the ‘overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action’:

Page 294   New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 at [69] Newton [1971] 1 WLR 862

at 880

, citing Brickfield Properties Ltd v

(Cross LJ).

The cases suggest that the ‘substantially the same facts’ test is not a rigid one.316 Indeed, the phrase ‘fairly broad brush comparison’ is used in the context of this second question as well as the first.317 Thomas JA instructs us to consider whether the new cause of action arises from ‘substantially the same story’:318 I do not think that ‘substantially the same facts’ should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not fatal to a favourable exercise of discretion under s 376(4).If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elucidation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.’

It is useful to consider the following two illustrative cases set out by Gleeson J in Clasul Pty Ltd v Commonwealth:319 [In Allonnor Pty Ltd v Doran [1998] QCA 372 ] the Queensland Court of Appeal upheld a decision allowing leave to amend outside the limitation period to plead an additional injury suffered during the course of employment, where similar injuries allegedly arose out of the same activity on the same day. In Allonnor, McPherson JA said: On any view of what is pleaded, the plaintiff was, at the end of the day in question, left with physical injury to his body, which resulted from the same cause, which was lifting (whether on one or more than one occasion) in the course of the same employment with the same employer. It is not unreasonable to state it in this way, although admittedly it is to

Page 50 of 59 Chapter 7 Pleadings: Defining the Controversy some extent a matter of the level of generality at which the proposition is expressed.

In [Dornan v J.W. Ellis & Co Ltd [1962] 1 QB 583 ], the Court of Appeal considered a claim for damages for personal injuries caused by the negligence and/or breach of statutory duty of the defendants, their servants or agents. The original claim particularised the alleged negligence as a failure to provide the plaintiff, a worker employed by the defendant,with means of protecting his eyes against a defective tool. The amendment alleged that the accident had been caused by the negligence of a fellow worker or other servants or agents of the defendants, and that the defendants were therefore vicariously liable. On appeal, the amendment was allowed. Davies LJ, said: The story that is now set up by the plaintiff is the same story as that set up all along, namely, that the plaintiff lost his eye from a piece of the drill which was

Page 295   being operated by [the fellow worker]. And, as I think, what is now sought to be done is not to make out a new case of negligence, but to persist in the old story and invite the judge at the trial to approach it, to interpret it, from a different angle or aspect. It is a different approach to the same main story of the accident.

313 Draney v Barry [2002] 1 Qd R 145 at[57] 1133 at [43] per Perram J.

per Thomas JA, quoted in Clasul Pty Ltd v Commonwealth [2014] FCA

per Gleeson J; see also Voxson Pty Ltd v Telstra Corporation Ltd (No 7) [2017] FCA 267 at [28]

314 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 at 434; [1998] WASCA 184 approvingly in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 at [30] 315 Clasul Pty Ltd v Commonwealth [2014] FCA 1133 at [41]

per Owen J, quoted

.

per Gleeson J.

316 One of the clearest canvassing of the authorities, through which this proposition comes through quite clearly, can be found in Clasul Pty Ltd v Commonwealth [2014] FCA 1133 at [41]–[51] 317 Thomas v Queensland [2001] QCA 336 at [19]

per Gleeson J.

, quoted in Clasul Pty Ltd v Commonwealth [2014] FCA 1133 at [45]

per Gleeson J. 318 Draney v Barry [2002] 1 Qd R 145 at[57] 1133 at [43]

per Thomas JA, quoted in Clasul Pty Ltd v Commonwealth [2014] FCA

per Gleeson J (emphasis added). As Gleeson J identified, the phrase ‘the same story’ was also used

by Lord Justice Davies in Dornan v JW Ellis & Co Ltd [1962] 1 QB 583 Commonwealth [2014] FCA 1133 at [47]

at 593–4

, quoted in Clasul Pty Ltd v

.

319 Clasul Pty Ltd v Commonwealth [2014] FCA 1133 at [44],[45]

.

Withdrawing a cause of action or defence

7.76 A party may seek to amend its pleadings to remove something it previously included. Generally, a party will be permitted to withdraw a cause of action or defence from its pleadings.320 A party may choose to do this if it resolves the issue with the opposing party or if it no longer believes the cause of action or defence is sustainable. Absent the

Page 51 of 59 Chapter 7 Pleadings: Defining the Controversy parties’ agreement as to costs, the party withdrawing the cause of action or defence would ordinarily be liable for the wasted costs (the rules may prescribe this specifically or the party may bear these costs by virtue of costs being taxed on an issue-by-issue basis). In withdrawing an element of its pleadings, a party may seek to withdraw an admission previously made. The court rules, however, generally prohibit this without the leave of the court.321 Withdrawing an admission is considered further in Chapter 14, 14.18 ff.

320 Federal Court Rules 2011 (Cth) Div 26.2; Court Procedures Rules 2006 (ACT) Div 2.11.6; Uniform Civil Procedure Rules 2005 (NSW) Pt 12; Supreme Court Rules (NT) O 25; Local Court(Civil Jurisdiction) Rules (NT) r 5.18; Uniform Civil Procedure Rules 1999 (Qld) Ch 9 Pt 3; Supreme Court Civil Rules 2006 (SA) r 107; District Court Civil Rules 2006 (SA) r 107; Magistrates Court (Civil)Rules 2013 (SA) r 88; Supreme Court Rules 2000 (Tas) Pt 12; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 25; County Court Civil Procedure Rules 2008 (Vic) O 25; Magistrates’ Court General Civil Procedure Rules 2010 (Vic) O 25; Rules of the Supreme Court 1971 (WA) O 23 r 2; Magistrates Court (Civil Proceedings) Rules 2005 (WA) Pt 6. 321 Federal Court Rules 2011 (Cth) r 22.06; Court Procedures Rules 2006 (ACT) rr 492 and 507; Uniform Civil Procedure Rules 2005 (NSW) r 12.6(2); Supreme Court Rules (NT) r 25.02(5); Uniform Civil Procedure Rules 1999 (Qld) r 188; Supreme Court Civil Rules 2006 (SA) rr 54(6)(a), 103(4)(b) and 158; District Court Civil Rules 2006 (SA) rr 54(6)(a), 103(4)(b) and 158; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.02(5); County Court Civil Procedure Rules 2008 (Vic) r 25.02(5).

Striking out pleadings

7.77 The rules generally provide that pleadings may be struck out where they:322 1. contain scandalous material; 2. contain frivolous or vexatious material; 3. are evasive or ambiguous;

Page 296   4. are likely to cause prejudice, embarrassment or delay in the proceedings; 5. fail to disclose a reasonable cause of action or defence; or 6. are otherwise an abuse of process of the court. Pleadings may be struck out on any of these bases upon either the application of a party or the court’s own initiative. While in many cases the court may permit a party to amend its pleadings rather than striking them out, if pleadings are struck out, the consequences are the same as if the relevant party had not filed the relevant pleadings at all — if the statement of claim is struck out, the action is liable to be dismissed with costs323 and if it is the defence that is struck out, the plaintiff is ordinarily entitled to default judgment.324 While there is some overlap in terms of the grounds upon which summary judgment may be sought, an application for pleadings to be struck out is distinct from an application or summary judgment. A strike-out application focuses on whether the pleadings are properly formulated, which, unlike summary judgment, usually involves limited consideration of the relative strength or merits of the parties’ cases.325

322 Federal Court Rules 2011 (Cth) r 16.21; Court Procedures Rules 2006 (ACT) r 425; Uniform Civil Procedure Rules 2005 (NSW) r 14.28; Supreme Court Rules (NT) r 23.02; Local Court (Civil Jurisdiction) Rules (NT) r 28.02; Uniform Civil Procedure Rules 1999 (Qld) r 171; Supreme Court Civil Rules 2006 (SA) r 104;District Court Civil Rules 2006 (SA) r 104; Magistrates Court (Civil) Rules 2013 (SA) r 86; Supreme Court Rules 2000 (Tas) rr 258 and 259; Supreme Court(General Civil Procedure) Rules 2015 (Vic) r 23.02; County Court Civil Procedure Rules 2008 (Vic) r 23.02;

Page 52 of 59 Chapter 7 Pleadings: Defining the Controversy Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 23.02; Rules of the Supreme Court 1971 (WA) O 20 r 19;Magistrates Court (Civil Proceedings) Act 2004 (WA) s 17. 323 See, for example, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

.

324 See, for example, British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197

.

325 Judicial Commission of New South Wales, Civil Trials Bench Book, Update 33, March 2017, [2-6920], citing Brimson v Rocla Concerete Pipes Ltd [1982] 2 NSWLR 937 (2011) 35 VR 98; [2011] VSCA 444 at [32]–[34]

; see also Manderson M & F Consulting (a firm) v Incitec Pivot Ltd .

Failure to disclose a cause of action or defence

7.78 Recently, the courts have made clear that they are unlikely to strike out pleadings for a simple failure to comply with the strict rules.326 Indeed, litigation over the formal requirements of pleadings is an unnecessary and wasteful distraction from the main issues in dispute. There are, however, two areas where the court will normally entertain strike-out applications. The first is where the pleadings do not disclose a reasonable cause of action or defence. If, for example, a plaintiff claims that the defendant was negligent, but neglects to plead any facts or circumstances establishing that the defendant owed the plaintiff a duty of care, the pleading is liable to be struck out for failing to disclose a cause of action. Common practice of the courts is usually to give parties a reasonable opportunity to amend their pleadings subject to paying any wasted costs. Importantly,though, the opportunity afforded to parties will not go beyond what is reasonable. The High Court made this very clear in AON Risk Services.327

326 Barclay v Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281 at [4]–[8] Martin CJ, cited in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]

per

.

327 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27

.

Embarrassing pleadings

7.79 The second area where the court will commonly entertain a strike-out application is where the pleadings are overly complex, confusing or embarrassing. Embarrassing, here, has a particular legal meaning. Pleadings are embarrassing if they

Page 297 are:‘unintelligible, ambiguous, vague or too general, so as to embarrass the opposing party who does not know what is alleged against him’.328 Given a critical function of pleadings is to enable the other party to know the case against it, and given how central this is to natural justice,329 the courts do not, and should not, tolerate pleadings that do not make the pleading party’s case clear. Again, the courts will often give the party a reasonable opportunity to amend its pleadings, but should not provide more than a reasonable opportunity. The courts have also made clear that the responsibility of ensuring pleadings are adequate rests with a party’s lawyers. Where pleadings are overly complex or embarrassing, the court may order that the party’s lawyers be personally responsible for wasted legal costs associated with amending inadequate pleadings.330 The court has observed that pleadings that are seriously deficient may constitute legal professional misconduct.331

Page 53 of 59 Chapter 7 Pleadings: Defining the Controversy

328 Gunns Ltd v Marr [2005] VSC 251 at [15]

per Bongiorno J; Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70

per Winneke CJ, Adam and Gowans JJ; see also Davy v Garrett (1877) 7 Ch D 473 (1878) 4 QBD 127

at 139

; Philipps v Philipps

.

329 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286,296,302–3 Priest v New South Wales [2006] NSWSC 12 at [31]

; see also

.

330 Steward v Deputy Commissioner of Taxation (2010) 76 ATR 66; [2010] FCA 402 at [33]–[35] 331 Ashby v Commonwealth (No 4) (2012) 209 FCR 65; [2012] FCA 1411

.

per Rares J.

Verification of pleadings

7.80 Pleadings must usually be signed by the pleading party’s legal representative or, if none, by the party itself.332 The practice of requiring counsel or the party to sign pleadings before they are filed, operates as some confirmation that the professional rules of conduct have been observed when deciding whether or not to advance a particular claim or defence. That person also bears a clear degree of responsibility if the court determines a pleading is vexatious or an abuse of process. If the court makes such a determination, that person may be subject to censure by the court333 or, in the case of a legal practitioner, by their professional regulatory body. Following reforms made with the introduction of the Civil Procedure Rules in England and Wales,334 New South Wales, Victoria and the Federal Court have introduced specific requirements for the verification of allegations, denials and non-admissions of facts in pleadings.335 The rules in each case are somewhat different, so we will consider each in turn.

Page 298

332 See specific requirements at: Federal Court Rules 2011 (Cth) r 16.01; Court Procedures Rules 2006 (ACT) r 405(5); Uniform Civil Procedure Rules 2005 (NSW) r 4.2 (requires that all documents prepared by a solicitor to bear the solicitor’s name); Supreme Court Rules (NT) r 13.01; Uniform Civil Procedure Rules 1999 (Qld) r 146(1)(g); Supreme Court Civil Rules 2006 (SA) r 98(1)(b); District Court Civil Rules 2006 (SA) r 98(1)(b); Supreme Court Rules 2000 (Tas) r 226(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 13.01(3); County Court Civil Procedure Rules 2008 (Vic) r 13.01(3); Rules of the Supreme Court 1971 (WA) O 20 r 7(5). 333 For example, by way of an adverse costs order, by way of the court’s inherent power to dismiss abusive proceedings or, in the most serious cases, by prosecuting the person for contempt of court. 334 See Civil Procedure Rules (England and Wales) Pt 22 (Statements of Truth); similar rules also pre-date these in the United States Federal Rules of Civil Procedure r 11. 335 Although not yet adopted in these jurisdictions, verification procedures have also been recommended in Western Australia (Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, [10.17]) and have been proposed in the context of the federal courts (Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper 62,July 1999, [5.54]–[5.77]).

New South Wales

7.81 In proceedings in the Supreme Court of New South Wales or the District Court of New South Wales pleadings (including amended pleadings) must be verified by affidavit.336 Exceptions apply in cases concerning defamation, malicious prosecution, false imprisonment, trespass to the person, death or personal injury.337 It is generally the

Page 54 of 59 Chapter 7 Pleadings: Defining the Controversy party filing the relevant pleadings that signs the affidavit rather than the party’s legal counsel.338 The affidavit must state, for every allegation of fact in the pleading, that the deponent believes the fact to be true, for every denial of fact in the pleading, that the deponent believes the fact to be untrue and for every allegation of fact that the pleading does not admit, that after reasonable inquiry the deponent does not know whether the allegations are true.339 Because the verification is by way of an affidavit, a party who knowingly makes a false statement may be charged with perjury.340

336 Uniform Civil Procedure Rules 2005 (NSW) r 14.23. 337 Uniform Civil Procedure Rules 2005 (NSW) r 14.22. 338 See Uniform Civil Procedure Rules 2005 (NSW) r 35.3. 339 Uniform Civil Procedure Rules 2005 (NSW) r 14.23(3). 340 Oaths Act 1900 (NSW) s 29.

Victoria

7.82 In Victoria, pleadings must be verified by a party’s legal practitioner or, if the party is unrepresented, by the party itself.341 Verification occurs by way of a proper basis certification in the prescribed form.342 A proper basis certification must be filed together with the party’s first substantive document in the proceeding and any subsequent document which adds a new party, claim, cause of action, defence, material allegation, denial or non-admission of fact or law.343 One must also be filed whenever one of those documents is amended or when the court or the rules otherwise require.344 Where the proceedings involve allegations of fact, the person making the certification must certify that:345 … on the factual and legal material available— (a)

each allegation of fact in the document has a proper basis;

(b)

each denial in the document has a proper basis;

(c)

there is a proper basis for each non-admission in the document.

For civil proceedings commenced by originating motion seeking legal relief or a remedy, the person making the certification must certify that:346

Page 299   … on the factual and legal material available— (a)

the claim in the document, or a response to a claim in the document, has a proper basis; or

(b)

the question posed by the party to the court in the document, or a response to a question posed, has a proper basis.

The Act further explains that:347 For the purposes of this section, a determination by a legal practitioner—

Page 55 of 59 Chapter 7 Pleadings: Defining the Controversy (a)

as to whether any allegation or denial of fact has a proper basis, on the factual and legal material available, must be based on a reasonable belief as to the truth or untruth of the allegation or denial; or

(b)

as to the proper basis of any non-admission is that the legal practitioner does not know, and therefore cannot say, whether a fact alleged or denial is true or untrue; or

(c)

as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.

341 Civil Procedure Act 2010 (Vic) s 42(1) and (4). 342 Civil Procedure Act 2010 (Vic) s 42(1) and (2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 4.10(2) and Form 4B. 343 Civil Procedure Act 2010 (Vic) s 42(1). 344 Civil Procedure Act 2010 (Vic) s 42(1). 345 Civil Procedure Act 2010 (Vic) s 42(1A). 346 Civil Procedure Act 2010 (Vic) s 42(1B). 347 Civil Procedure Act 2010 (Vic) s 42(3).

Federal Court

7.83 The requirement in the Federal Court is set out in r 16.01 of the Federal Court Rules 2011 (Cth), which reads: A pleading must: (a)

state the name of the person who prepared the pleading; and

(b)

include a statement by the person that the person prepared the pleading; and

(c)

if prepared by a lawyer—include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for: (i) each allegation in the pleading; and (ii) each denial in the pleading; and (iii) each non-admission in the pleading.

The same procedure would apply to pleadings in general civil cases in the Federal Circuit Court.348

348 Federal Circuit Court of Australia Act 1999 (Cth) s 43(2)(b).

Comments on verification

7.84

Page 56 of 59 Chapter 7 Pleadings: Defining the Controversy These verification procedures are designed to encourage proper conduct in the pleadings process. Their main purpose is not so much to establish a platform of proof but to ensure that parties do not take up positions that they know to be untrue,or which are unsupported by evidence but are put forward in the hope that something may turn up in the course of proceedings. As pleadings are used to define the scope of discovery, this aims to prevent fishing expeditions. Another key consequence of

Page 300 verification procedures is that it makes it impossible, in most cases, for a party to make inconsistent allegations of fact because that party would not be able to honestly state its belief that both facts are true.

7.85 Although rarely forceful, there has been some opposition to the introduction of verification procedures on the basis that they are unnecessary given the professional obligations otherwise on legal practitioners.349 It has also been suggested that where verification is required of a party rather than the legal practitioner, it can be a time-consuming and expensive process for little practical benefit.350 It is suggested, however, that neither of these criticisms carries much weight. Where a legal practitioner is providing the verification, the requirement is not a particularly onerous one and anything that would encourage legal practitioners to think more carefully about the allegations made in pleadings is no bad thing. To the extent that verification is required to be given by the party, the fact that legal practitioners are required to ensure their client understands the content of the pleadings is no more than what a diligent legal practitioner would do in any event. At no point in the proceedings is the close involvement of the client more critical than in the framing of the case. Further, the need to explain the pleadings to clients may encourage practitioners to be clearer in their drafting of pleadings. The requirement that pleadings be verified by the party, personally, is a key benefit of the New South Wales procedures over those in Victoria and in the Federal Courts.

349 See, for example, Victorian Law Reform Commission, Civil Justice Review Report, Report 14, March 2008, pp 717–18. 350 Victorian Law Reform Commission, Civil Justice Review Report, Report 14, March 2008, p 718 (citing a submission by the Magistrates’ Court of Victoria).

The future of pleadings

7.86 There seems to be a significant degree of dissatisfaction with the pleadings process.351 Finkelstein J observed in Fieldturf Inc v Balsam Pacific Pty Ltd that ‘no one seriously suggests that the system of pleadings is adequate’.352 His Honour quoted some of the numerous criticisms made by the Australian Law Reform Commission as part of its Review of the Federal Civil Justice System:353 —

The difficulty in adhering to the rule that fact and matters of law be pleaded.

—

The barrier that the system of pleadings and its complex rules present to the unrepresented litigant.

Page 301   —

The failure of pleadings to narrow the issues between the parties.

—

The tendency of parties to make allegations which they do not believe to be true or which they cannot reasonably expect to be able to prove at trial, and to deny allegations which they know to be true or which reasonable enquiry would reveal to be true.

Page 57 of 59 Chapter 7 Pleadings: Defining the Controversy

Reforms over the last two decades have had varying degrees of success at addressing some of these problems: •

rules limiting applications for further and better particulars have helped to reduce unnecessary and wasteful satellite litigation;

•

rules requiring defendants to respond to each allegation of fact in a statement of claim, together with more granular issue-based costs allocation, have reduced the ability for defendants to simply not admit facts, narrowing the issues in dispute;

•

verification of pleadings and proper basis certification have limited the ability for the parties to plead in the alternative and have also helped to narrow the issues in dispute; and

•

changing judicial attitudes since AON Risk Services, to increase the emphasis on deadlines and to limit late amendment of pleadings, have increased the appreciation of time and cost as central to the just resolution of disputes.

351 See, for example, Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, Ch 10; Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809 at [6] ; P A Keane, ‘The Early Identification of Issues’ (2011) 1 Journal of Civil Litigation and Practice 14 at 17; E Thornburg and C Cameron, ‘Defining Civil Disputes: Lessons from Two Jurisdictions’ (2011) 35 Melbourne University Law Review 208;Law Council of Australia and the Federal Court of Australia, Case Management Handbook, July 2014, [5.59]– [5.60]. 352 Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809 at [6]

.

353 Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809 at [6] , quoting Australian Law Reform Commission, Rethinking the Federal Civil Litigation System, Issues Paper 20, [7.9]; in turn, citing C Pincus, B Lander and M Wilson, Papers, Queensland Litigation Reform Commission Conference ‘Civil justice reform: streamlining the process’, Brisbane, March 1996.

7.87 While reforms have served to reduce some problems, they have not succeeded in turning the tide of dissatisfaction with the system of pleadings. Following a 2011 workshop looking at the procedures of the Federal Court, then Chief Justice Keane observed:354 There seemed to be a continuing, though not yet complete, disenchantment with our traditional system of pleadings as a means of framing the issues for the purposes of discovery and trial.

We can draw a distinction between traditional or formal pleadings, being the pleadings that have been the focus of this chapter, on the one hand, and less formal alternatives, such as joint statements of issues or summaries of facts and contentions,on the other. The lingering resistance to doing away with formal pleadings in favour of less formal alternatives perhaps stems from an affinity for the familiar among senior legal practitioners and judges. The drafting of pleadings is an art form —one steeped in tradition and long-established customs and practices. This likely makes it something that is difficult for practitioners to let go of. This sort of attachment is clearly evident in the opening paragraph of a 1975 article by F G Brennan QC (as he then was prior to his appointment in 1977 as a judge of the Federal Court and subsequent appointment to the High Court in 1981):355 The system of written pleadings has some comforting attractions. Lawyers and their clients are familiar with the notion of written pleadings. The drawing of a pleading can

Page 302

Page 58 of 59 Chapter 7 Pleadings: Defining the Controversy

be a fine discipline. A hearing without pleadings is like a jungle without tracks, in which one may encounter dangerous surprises and from which one may emerge at length no further forward than the point of commencement. Reflections of this kind confirm our staunch adherence to the system. The system is neither rigid nor tyrannical. It is saved from that reproach by the liberal exercise of a power to amend and by a convention, frequently adopted, of ignoring the pleaded issues when it is convenient to do so. In the century which has elapsed since the various Judicature Acts came into force, there has been little movement for major change. Amendments to rules of court relating to pleadings have, in most jurisdictions, been of relatively minor significance. The rules have withstood the tensions of modern litigation and the system of written pleadings has remained virtually intact. Adherence to the system is a significant commendation of it by practising lawyers, for it is a system which(generally speaking) lies within their competence to change. No action by an uninterested legislature is required, nor any initiative by a department of Government. One concludes that the system is functioning adequately according to its design. Or it may be that practising lawyers do not perceive a malfunction in the system or an obsolescence in the design.

354 P A Keane, ‘The Early Identification of Issues’ [2011] 1 Journal of Civil Litigation and Practice 14 at 17. 355 F G Brennan, ‘Written Pleadings’ (1975) 12 Western Australian Law Review 33 at 33 (footnotes omitted); see also E Thornburg and C Cameron, ‘Defining Civil Disputes: Lessons from Two Jurisdictions’(2011) 35 Melbourne University Law Review 208 at 212.

The trend away from formal pleadings

7.88 The fact that it is such an art form makes drafting pleadings particularly challenging for unrepresented litigations and inexperienced practitioners. Inexperienced drafters often extensively rely on precedents rather than tailoring bespoke pleadings for the case at hand, which tends to produce pleadings that are prolix, disjointed or simply not fit for purpose in that they fail to clearly and succinctly identify the issues in dispute.356 Pleadings are also rarely intuitive. They rely at their core on the vexed, and sometimes quite arbitrary, distinctions between pleadings and particulars, facts and evidence and facts and law.357 They follow a rigid structure and are commonly peppered with legal terms of art.358 As documents, they are usually a difficult read for almost all but experienced litigators. There is, however, little in the way of justification for many of these practices — for drawing these problematic distinctions, for prohibiting the inclusion of evidence or for maintaining anachronistic conventions of form and expression. It is hard to see how the purposes of pleadings (informing the other parties of the party’s case, identifying the issues in dispute and facilitating settlement) are not better served by a concise, plain English, summary of the party’s case setting out the relevant law, the material facts as the party alleges them and the evidence the party currently intends to rely upon to substantiate those facts.

356 E Thornburg and C Cameron, ‘Defining Civil Disputes: Lessons from Two Jurisdictions’ (2011) 35 Melbourne University Law Review 208 at 227; Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, [10.6]. 357 Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, [10.10]–[10.11]. 358 Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, [10.6].

7.89

Page 59 of 59 Chapter 7 Pleadings: Defining the Controversy For these reasons, the emerging trend is towards doing away with formal pleadings altogether. Replacing pleadings with less formal case summaries has been

Page 303 recommended numerous times in Australia including as far back as 1975.359 The Federal Court’s Fast Track procedure, first trialled in the Victorian registry in 2007 and expanded nationally in 2009, marked the first large-scale replacement of pleadings with case summaries in a superior court in Australia.Discussing the effect of Fast Track statements replacing pleadings, Chief Justice Michael Black (as his Honour then was) observed:360 It has to be said that the substitution of these statements for traditional pleadings is not without its critics, but those involved in the process consistently report that the statements have largely eliminated surprise, have avoided pleading arguments and have greatly assisted in the early identification of the issues.

The Federal Court has since, in line with the recommendation of the Productivity Commission in its 2014 Report,361 adopted Fast Track-style concise statements of key issues and facts in place of formal pleadings as standard in commercial disputes.362 Indeed, while all courts have the ability to dispense with pleadings, the rules in many Australian jurisdictions explicitly envisage that courts may do away with pleadings in certain cases.363 While a level of resistance remains, the tide is clearly turning and we are likely to see more courts start to adopt less formal case summaries in place of formal pleadings. This is to be encouraged.

359 New South Wales Law Reform Commission, Working Paper on Procedure (Common Law Pleadings Scott Schedules), Working Paper 14, 1975, 27 [8]; see also Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Report 92, September 1999, [10.8]. 360 M Black AC, ‘The Role of the Judge in Attacking Endemic Delays: Some Lessons from the Fast Track’ (2009) 19 Journal of Judicial Administration 88 at 94. 361 Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, Vol 1, 5 September 2014, Recommendation 11.1. 362 See further the discussion at 7.41 above. 363 See Court Procedures Rules 2006 (ACT) r 426; Uniform Civil Procedure Rules 2005 (NSW) r 14.2; Supreme Court Rules (NT) r 14.09(c); Supreme Court Civil Rules 2006 (SA) r 96 (suggesting pleadings might be replaced with affidavits); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.09(c); County Court Civil Procedure Rules 2008 (Vic) r 14.09(c); Rules of the Supreme Court 1971 (WA) O 20 r 21;District Court Rules 2005 (WA) r 24(2)(a).

End of Document

Chapter 8 The Application Procedure Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 8 — The Application Procedure

Chapter 8 The Application Procedure Page 305 [Current to May 2018]

Introduction

8.1 The term ‘application’ denotes any approach or request made to the court for orders in connection with, but not determinative of, litigation between two or more persons.1 Applications can be made before a proceeding is commenced, in the course of a proceeding, and even after judgment has been given. For example, a prospective plaintiff may wish to obtain preliminary discovery from a prospective defendant so as to form a view as to whether it can commence a proceeding against that defendant. Once a proceeding is on foot, a plaintiff may wish to seek an extension of time to serve its originating process, to strike out a defendant’s defence, to obtain directions on pre-trial steps, or to obtain an interlocutory injunction to restrain a person from taking steps that might jeopardise or extinguish the rights it seeks to vindicate at trial. After judgment has been handed down, a party may wish to obtain the court’s assistance in enforcing, or staying the enforcement of, judgment. Requests for court orders on such matters are known as applications.

1

The exception to this statement are applications for default or summary judgment, which ask the court to award judgment for the applicant (albeit without a full consideration of the merits of the case).

8.2 Applications can be made by any party in relation to any aspect of a proceeding which the court has jurisdiction to entertain. The civil procedure rules in each jurisdiction set out the procedure for making an application.2 Certain applications, such as those for default or summary judgment, are subject to additional procedural requirements found elsewhere in the relevant rules.

Page 306

2

Federal Court Rules 2011 (Cth) Pt 17; Court Procedures Rules 2006 (ACT) Pt 6.2; Uniform Civil Procedure Rules 2005 (NSW) Pt 18; Supreme Court Rules (NT) O 46; Uniform Civil Procedure Rules 1999 (Qld) Ch 2 Pt 4; Supreme Court Civil Rules 2006 (SA) Ch 7 Pt 2 Div 3; Supreme Court Rules 2000 (Tas) Pt 21; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 46; Rules of the Supreme Court 1971 (WA) Os 54 and 59.

Page 2 of 11 Chapter 8 The Application Procedure

8.3 The rules do not themselves prescribe the types of applications which can properly be brought in any given proceeding.3 That is a question of substantive law.4 The rules simply set out the mode by which an application is to be made, how it might be supported and to whom notice of the application must be given.

3

The rules in each jurisdiction contemplate certain, but not all, types of applications which might be made. For example, the rules contemplate applications to extend or abridge the time prescribed by the rules for the taking of certain steps,for default and summary judgment, for search and freezing orders, and for injunctions.

4

See, for example, s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that the Federal Court has power make such interlocutory orders as it thinks appropriate in relation to any matter over which it has jurisdiction.

8.4 In determining whether to grant any application, the court will have regard to whether there is prima facie evidence of the facts supporting the grant of relief sought and a reasonably arguable basis for any question of law involved.5

5

Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; [2005] NSWSC 742 at [37]

per Campbell J.

8.5 Where possible, parties are encouraged to advance applications at hearings which have already been listed. This ensures the court’s limited time and resources are utilised effectively, consistent with the parties’ obligations to resolve disputes as efficiently and cost-effectively as possible.6

6

See, for example, Civil Procedure Act 2005 (NSW) s 56(3); Civil Procedure Act 2010 (Vic) ss 7, 24 and 25. Consistent with the overarching purpose of the rules, r 18.6 of the Uniform Civil Procedure Rules 2005 (NSW) allows a party to ‘piggyback’ off the application of another. It provides that a party may, on the hearing of another party’s application, make any further application it wishes to make and allows the court to immediately deal with that further application, including by determining it, or if more appropriate, adjourning it and giving appropriate directions as to the service of notice on affected parties. Rule 18.9 allows the court to use the hearing of any application as an opportunity to give directions to the parties about the conduct of the proceedings more generally.

8.6 Applications fall into one of two broad categories: interlocutory applications and other applications. Applications made before or in the course of proceedings are referred to as interlocutory applications and are by far the most common. This chapter deals primarily with interlocutory applications. Such applications are not meant to provide a

Page 3 of 11 Chapter 8 The Application Procedure final resolution of the issues in dispute, but rather to ensure that the process for arriving at a determination on the merits is fair and just, and that a determination is reached without undue harm to the rights in dispute.

8.7 Interlocutory applications are of considerable importance since court decisions on procedural matters may influence the course of the litigation and even its outcome. For instance, a refusal to extend the time for serving a statement of claim could effectively extinguish a substantive claim and leave the plaintiff without recourse. The grant of an interlocutory injunction could impose serious constraints on a party’s ability to exercise its rights pending the outcome of the litigation.Case management decisions, such as the setting of timetables for the completion of the various pre-trial processes, might represent an advantage to one party and an obstacle to its opponent. Given the potential impact of interlocutory decisions on the conduct of litigation, the application procedure must conform to most, if not all, of the requirements of

Page 307 fair trial.7 The general rule is therefore that any person who may be affected by the outcome of an application must be given notice of the application and an adequate opportunity to oppose or, indeed, support it.8

7

For discussion of the concept of a fair trial, see Chapter 3.

8

Federal Court Rules 2011 (Cth) r 17.01(2); Court Procedures Rules 2006 (ACT) rr 6007(7), 6008 and 6009; Uniform Civil Procedure Rules 2005 (NSW) rr 18.2(1) and 18.4; Supreme Court Rules (NT) r 46.05; Uniform Civil Procedure Rules 1999 (Qld) rr 27(1) and 28; Supreme Court Civil Rules 2006 (SA) r 131(2); Supreme Court Rules 2000 (Tas) r 529; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 46.05; Rules of the Supreme Court 1971 (WA) rr 54.04 and 59.05.

8.8 The procedural rules governing applications are concerned primarily with ensuring that the applicant gives any person who might be affected by the outcome of an application fair notice of three things: the orders being sought, the evidence being relied upon in support of those orders and the date, time and place at which the application will be heard. Such notice ensures that affected persons have a reasonable opportunity to consider, prepare for, and be heard on the application.

8.9 In some circumstances, giving an affected party notice, or sufficient notice, of the application may be undesirable or impracticable. In others, the only person affected by an application will be the applicant itself. To deal with such circumstances,the rules in each jurisdiction make (limited) provision for applications without notice. Applications without notice are discussed later in this chapter. As a general rule however, procedural fairness requires that notice be given to affected persons before orders are made.

Applications with notice

8.10

Page 4 of 11 Chapter 8 The Application Procedure The right to be heard is no less important in interim hearings than at the trial. A litigant has just as much a right to be notified of, and an opportunity to prepare for, an interlocutory hearing concerning its case as it has in relation to the trial. Accordingly, the general rule is that any person who may be affected by the outcome of an application be served with a copy of that application and any evidence in support. The rules vary between jurisdictions on how far in advance of the hearing of an application affected parties must be served, although typically at least two clear days’ notice is required.9

Page 308

9

The Northern Territory and Victorian rules are unique in that they do not require a set number of days’ notice to be given to affected parties, and instead mandate ‘reasonable’ notice, which notice must be received no later than 2 pm the day prior to the application. What is reasonable in the circumstances will turn on the facts of each case and the nature of the application being made. If the court does not consider reasonable notice has been given, it may adjourn the hearing to afford a respondent further time to consider the application and ready any material in opposition: Supreme Court Rules (NT) r 46.06; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 46.06. For the time in other jurisdictions, see Federal Court Rules 2011 (Cth) r 17.01(2) (at least 3 days before hearing); Court Procedures Rules 2006 (ACT) r 6007(7) (at least 2 days before hearing); Uniform Civil Procedure Rules 2005 (NSW) r 18.4 (at least 3 days before hearing); Uniform Civil Procedure Rules 1999 (Qld) rr 27(1) and 28 (at least 3 business days before hearing); Supreme Court Civil Rules 2006 (SA) r 131(2) (at least 2 clear business days before hearing); Supreme Court Rules 2000 (Tas) r 529 (at least 2 days before hearing); Rules of the Supreme Court 1971 (WA) O 54 r 4 (at least 2 clear days before hearing) and O 59 r 5 (at least 7 days before the return of a chambers summons).

Form of notice

8.11 Each jurisdiction requires that applications be made to the court, in writing, in a particular form. The forms are substantively identical and require, in addition to the usual documentary formalities, the applicant to state both the orders sought and the date, time and place at which the court, upon the application being filed, has determined that the application will be heard.10

10 Federal Court Rules 2011 (Cth) r 17.01(1) (Form 35); Court Procedures Rules 2006 (ACT) Note 1 to r 6007 (Form 6.2); Uniform Civil Procedure Rules 2005 (NSW) rr 18.1 and 18.3 (Form 20); Supreme Court Rules (NT) r 46.04(1) (Form 46A); Uniform Civil Procedure Rules 1999 (Qld) r 26(1) (Form 9); Supreme Court Civil Rules 2006 (SA) r 131(1) and Supreme Court Civil Supplementary Rules 2014 Sch 3 (Form 26); Supreme Court Rules 2000 (Tas) r 525(1)(a) and Supreme Court Forms Rules 2000 Sch 1 (Form 41); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 46.04(1) (Form 46A); Rules of the Supreme Court 1971 (WA) rr 54.5(1) (Form 65) and 59.4(1) (Form 77).

8.12 In most jurisdictions, applications may also be made to the court orally.11

11 See, for example, Federal Court Rules 2011 (Cth) r 17.01(3); Court Procedures Rules 2006 (ACT) r 6016; Supreme Court Rules (NT) r 46.02(3); Uniform Civil Procedure Rules 1999 (Qld) r 32; Supreme Court Civil Rules 2006 (SA) r 131(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 46.02(3).

Page 5 of 11 Chapter 8 The Application Procedure

Evidence in support

8.13 On a strict reading of the rules in most jurisdictions, it is not mandatory to file evidence in support of an application.12 In practice, however, evidence will be required if the court is to grant the orders sought. Without evidence, the court has no material before it to justify the exercise of its jurisdiction to make the relevant orders. For example, if a plaintiff applies for an extension of time to serve its statement of claim on the defendant, the plaintiff should explain to the court why it was not able to serve that document within the prescribed timeframe, why the requested extension is necessary and how it intends to serve the defendant within the extended timeframe. Only with the benefit of this information is the court in a position to make a decision as to whether the delay in service can be excused and whether an extension is justified.

12 In some cases, however, the additional procedural rules applicable to certain applications require affidavits in support, addressing prescribed matters, to be filed together with the application. See, for example, Federal Court Rules 2011 (Cth) r 26.01(2); Court Procedures Rules 2006 (ACT) r 1149(1); Supreme Court Rules (NT) r 22.03(1); Uniform Civil Procedure Rules 1999 (Qld) r 295(1); Supreme Court Rules 2000 (Tas) r 357; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 22.04(1); Rules of the Supreme Court 1971 (WA) r 14.02(1) concerning summary judgment.

Form of evidence

8.14 Evidence on applications is typically put before the court by way of affidavit.13 Typically, the rules require affidavits to be based on the deponent’s own first-hand

Page 309 knowledge.14 On interlocutory applications, however, it is permissible for affidavits to contain statements of fact based on information and belief — that is, hearsay evidence — provided the source of that information or belief is identified.15 Identifying the source of the information or belief assists the court in assessing the reliability of that evidence, and the weight which it should be given.16 Where the source of such information is not identified, the court may, in its discretion, decline to admit the affidavit (or relevant part of the affidavit) into evidence.17

13 The rules in some jurisdictions expressly provide for evidence to take affidavit form, unless the court otherwise orders: Federal Court Rules 2011 (Cth) r 17.01(1)(b); Court Procedures Rules 2006 (ACT) r 6007(5)(a); Supreme Court Rules (NT) r 40.02(a); Uniform Civil Procedure Rules 1999 (Qld) r 390(b); Supreme Court Civil Rules 2006 (SA) r 167; Supreme Court Rules 2000 (Tas) r 458(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 40.02(a); Rules of the Supreme Court 1971 (WA) r 36.2(3). In other jurisdictions, this is simply the accepted (and expected) practice. 14 Court Procedures Rules 2006 (ACT) r 6711(1); Uniform Civil Procedure Rules 2005 (NSW) r 35.3(3); Supreme Court Rules (NT) r 43.03(1); Uniform Civil Procedure Rules 1999 (Qld) r 430(1); Supreme Court Civil Rules 2006 (SA) r 162(2); Evidence Act 2001 (Tas) s 59; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 43.03(1); Rules of the Supreme Court 1971 (WA) r 37.6(1). (Cf s 172 of the Evidence Act 1995 (Cth), which provides that evidence may include ‘evidence based on the knowledge and belief of the person who gives it, or on information that person has’, provided that an affidavit or statement which includes such evidence sets out the source of the knowledge or information, or the basis of the belief.) 15 See, for example, Evidence Act 1995 (Cth) s 75; Court Procedures Rules 2006 (ACT) r 6711(2); Evidence Act 1995 (NSW) s 75; Supreme Court Rules (NT) r 43.03(2); Uniform Civil Procedure Rules 1999 (Qld) r 430(2); Supreme Court Civil Rules 2006 (SA) r 162(2); Supreme Court Rules 2000 (Tas) r 502(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 43.03(2); Rules of the Supreme Court 1971 (WA) r 37.06(2)(c).

Page 6 of 11 Chapter 8 The Application Procedure 16 Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949 at [11] 17 Re JL Young Manufacturing Co Ltd [1900] 2 Ch 753 Hill & Assoc v King (1992) 27 NSWLR 228 at 230

per Palmer J.

; Manson v Ponninghaus [1911] VLR 239

; Geoffrey W

; New South Wales Crime Commission v Vu [2009] NSWCA 349

. The court will consider the following six factors in determining how to exercise its discretion: (1) the kind and gravity of the matter in relation to which the affidavit evidence is directed; (2) the nature of the evidence; (3) the degree of urgency in the application; (4) the time the deponent has had to identify the source; (5) the extent to which the identity of the source is necessary for the court to assess the weight that should be given to that evidence; and (6) any factors arising from the governing legislation or other law: Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1) [2014] VSC 481 at [72]

.

Applications without notice

8.15 While the right to timely notice is a fundamental principle of procedural justice, it is clear that an inflexible adherence to this principle could itself become a source of injustice. There are situations where court intervention is needed before due notice can be given. For example, suppose that a defendant is about to leave the country with a child whose custody is contested. If the court were powerless to interfere until the defendant had received advance notice of the application to restrain the child’s removal from the jurisdiction, the child could be put beyond the protection of the court. Similarly, if the court had to wait until proper notice had been given before issuing an order restraining a defendant from pulling down a building to which the plaintiff asserted ownership, the defendant would be free in the meantime to destroy the building and irrevocably harm the plaintiff’s alleged right before it can be vindicated. As these examples suggest, there are situations where depriving a party of the opportunity to be heard before a court order is made against them is the lesser evil.

Page 310

8.16 Applications made without notice are known as ex parte applications. The principles governing applications for injunctions without notice are discussed in detail in Chapter 10 on interim remedies.18 For present purposes, it is sufficient to draw attention to some general matters regarding ex parte applications.

18 See 10.80 ff.

Types of without notice applications

8.17 There are, broadly speaking, three situations in which an application without notice may be appropriate: where there is not yet a respondent to serve; where urgency leaves no time for notice; and, lastly, where there is a risk that notice would cause the affected party to take precipitate action to defeat the application before it can be heard. When making an ex parte application, the applicant owes a duty of full and frank disclosure to the court. This is discussed summarily below and in detail in Chapter 10.19

Page 7 of 11 Chapter 8 The Application Procedure 19 See 10.82.

Unilateral process applications

8.18 An application without notice may be made where there is not as yet a party to be served. This is the case, for example, where a plaintiff applies for an extension of the time to serve its originating process. Although there is no practical impediment to giving notice in such a case, there is equally no reason to involve the defendant in a process that by its very nature is unilateral. Since a plaintiff does not require the defendant’s permission to serve its originating process in the first place, the latter’s presence can hardly be imperative when the plaintiff seeks an extension of time for service (though a defendant will be able to apply to court to set aside the grant of leave to serve out of time). We may refer to such applications as ‘unilateral process applications’. The example above concerns an application made before proceedings have been commenced against the affected party. There is also scope for unilateral process even where an inter partes process is already under way. For example, just as a party does not need another party’s permission to call a witness, so it does not have to give notice of an application for permission to obtain a deposition from a witness who is outside the jurisdiction.

8.19 By its very nature, a unilateral process does not involve another. As such, the ‘dispensation’ from the requirement of notice does not constitute a true exception to the principle that notice must be given to the party affected.However, once a decision has been given, other parties would normally be able to seek to set it aside. Thus, a plaintiff who is served with a claim pursuant to an extension of time for service may seek to have the service set aside. Similarly, a defendant served pursuant to a permission to serve outside the jurisdiction may challenge the jurisdiction of the court. If, in such situations, the plaintiff has reason to believe that the defendant will apply for orders made on an application to be set aside,it would be advisable for it to join the defendant as a respondent to the application to save the cost of a further hearing.

Page 311

Urgent applications

8.20 Where an application is made without the requisite notice to affected persons, the usual course is for the court to adjourn the application and order that such notice be given before it will determine the application. As a matter of procedural fairness, the court will wish to hear from all persons who will be impacted by orders it might make before making such orders.

8.21 In some cases, however, the need for the orders is urgent and, through no fault of the applicant, there is insufficient time for the applicant to serve affected persons at all or serve them sufficiently far in advance of the hearing. If the applicant were required to strictly adhere to the rules, there is a risk its interests would be seriously or irreparably harmed by the delay occasioned by effecting proper service. In such cases, if the interests of justice so require, the court is free to dispense with the requirement for service and hear the application notwithstanding the lack of notice to affected parties.20 The rules contain various safeguards to protect the interests of affected persons in such circumstances, discussed below.

Page 8 of 11 Chapter 8 The Application Procedure

20 Federal Court Rules 2011 (Cth) r 17.04(c); Court Procedures Rules 2006 (ACT) rr 6 and 6010(a); Uniform Civil Procedure Rules 2005 (NSW) r 18.2(2)(c); Supreme Court Rules (NT) r 2.04; Uniform Civil Procedure Rules 1999 (Qld) r 27(3); Supreme Court Civil Rules 2006 (SA) r 131(4); Supreme Court Rules 2000 (Tas) r 530(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 2.04; Rules of the Supreme Court 1971 (WA) r 54.3.

8.22 In some cases, it may be that the urgency that prevents due notice is attributable to some failure on the applicant’s part. It is submitted that such failure does not necessarily disentitle the applicant to the relief sought, but may result in cost orders against the applicant insofar as the lack of notice has necessitated a further hearing or otherwise resulted in wasted costs.

Secret applications

8.23 A further exception to the rule that affected persons must be given notice of an application exists in the case of applications for search orders and freezing orders, for example.21 These are situations where giving notice of the application to the respondent may well defeat the very purpose that the application is intended to serve. This is the case where notice may result in the respondent taking precipitate action to defeat the applicant’s rights.

21 Freezing orders are discussed in detail in Chapter 10, 10.95 ff.

8.24 A plaintiff may, without notice, obtain an asset freezing order restraining the defendant from dissipating its assets where there is a risk that, upon hearing of the claim, the defendant would put its assets beyond the court’s reach.Asset freezing orders are therefore issued without notice, before the defendant has been served with the originating process or otherwise has the opportunity to transfer or diminish its assets, because surprise is essential to the success of the process.The same is true for search orders, designed to preserve evidence from destruction.

8.25 However, once made, it is open to an affected person to apply to have an ex parte order varied or set aside. The applicant has the benefit of that order operating in the interim.

Page 312

Protecting affected persons’ interests

Page 9 of 11 Chapter 8 The Application Procedure

Duty of candour and good faith

8.26 A court will entertain an ex parte application only where it is satisfied that it is just to do so. The applicant owes a duty of candour to the court when applying for ex parte orders.22 It is obliged make full and frank disclosure of all relevant facts and matters to the court, including those that are favourable to the absent respondent’s case or weigh against the making of the orders sought.23 The duty of disclosure applies not only to material facts known to the applicant, but also to any additional facts which could be discovered by making proper inquiries.24

22 Brown v Newall (1837) 2 My & Cr 558 at 569–70; Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350

at 1356–7

Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 647–8; [2005] VSCA 213 23 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681 (1995) 32 IPR 24.

; Milcap Publishing Group AB v Coranto Corp Pty Ltd

24 Commonwealth Bank of Australia v Oswal [2011] WASC 84 at [7] 159 at [3]

;

.

; Minter Ellison (a firm) v Raneberg [2011] SASC

; Hong Kong International Credit Ltd v Registrar of Titles [2012] WASC 17 at [5]

liquidator of Willahra Pty Ltd (in liq)) v Kim Management Pty Ltd [2012] QSC 143 at [50]

; Williams (as

.

8.27 Where an applicant withholds material information from the court, the resulting orders are liable to be set aside as irregular, with an order for costs against the applicant25 or, if appropriate, the applicant’s lawyers personally.26 A fact is material if its disclosure would have been likely to influence the court’s determination whether to grant the application.27

25 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [25],[31]–[32] 26 Orpen v Tarantello [2009] VSC 143

.

27 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 [2009] VSC 143

.

; Orpen v Tarantello

.

8.28 In determining whether to set aside an order on the basis of non-disclosure, the court will consider whether the nondisclosed facts would have altered its decision, whether the non-disclosure was deliberate, the need to penalise a party who misleads the court, and the views of the affected parties on the continued operation of the order.28 Whether or not to set aside such an order is a matter in the court’s discretion. In Savcor Pty Ltd v Cathodic Protection International APS, Gillard AJA remarked:29

Page 10 of 11 Chapter 8 The Application Procedure

In my view it is not an inflexible rule that a non-disclosure of a material fact in an ex parte application invariably leads to the order being set aside. Of course if there is a high degree of culpability in the sense that a party has set out to mislead a court, a court in most if not all cases would be reluctant to excuse the intentional misconduct. Each case will depend upon its own circumstances. Justice is the determinant.

28 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 649–50; [2005] VSCA 213 at [31]–[36] 29 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 649; [2005] VSCA 213 at [29]

.

.

8.29 Importantly, the setting aside of an order will not necessarily preclude another application being made.30

Page 313

30 Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 649; [2005] VSCA 213 at [31] Tarantello [2009] VSC 143

; Orpen v

.

Orders on terms

8.30 If the court is minded, it may (and in practice typically will) make its orders operative only for a short duration until such time as the matter can be reagitated in the presence of affected parties. This affords the person or persons affected by the order the opportunity to make any submissions on the making, form and duration of the order and also allows the court to satisfy itself that the applicant discharged its duty of candour and honesty in applying for the order at first instance.

8.31 The court may also make orders on any terms as to costs or otherwise, or subject to any undertakings, as it thinks just. For example, the court may require the applicant to give an undertaking as to damages, known as the ‘usual undertaking as to damages’, by which the applicant undertakes to abide by any order the court may make to pay damages found to have been sustained by the party against whom the order was made, should it later transpire that the order should not ultimately have been made.31

Page 11 of 11 Chapter 8 The Application Procedure 31 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249

at 260; 33 ALR 578;

Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38 at [30]–[34]

; European Bank Ltd v

Robb Evans of Robb Evans and Associates [2010] HCA 6 at [8]

. See also Chapter 10, 10.63 ff.

Setting aside or varying orders

8.32 Once orders have been made, they must be served on affected persons. As noted above, those persons may then apply to have those orders set aside or varied. The rules in each jurisdiction differ as to the circumstances in which an order may be set aside or varied, but typically include the case where the order in question was made in the absence of a party.32

32 Federal Court Rules 2011 (Cth) r 39.05(c); Court Procedures Rules 2006 (ACT) r 1613(2); Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 and 36.16 (particularly r 36.16(3)); Supreme Court Rules (NT) r 46.08; Uniform Civil Procedure Rules 1999 (Qld) r 667; Supreme Court Civil Rules 2006 (SA) rr 41L, 174, 230, 242 and 246(3); Supreme Court Rules 2000 (Tas) rr 366, 374 and 497; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 46.08;Rules of the Supreme Court 1971 (WA) rr 13.10, 14.12, 22.10, 36B.4(1) and 58.23.

8.33 In any case, the court has inherent jurisdiction to set aside an order made against a person who did not have a reasonable opportunity to appear and be heard on the application.33 While such an application is pending, the applicant has the benefit of the original order. If the order is set aside, the court will rehear the original application.34

33 Taylor v Taylor (1979) 143 CLR 1

; Attorney-General (Vic) v Lindsey [2005] VSC 53

34 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681 (1995) 32 IPR 24.

End of Document

.

; Milcap Publishing Group AB v Coranto Corp Pty Ltd

Chapter 9 Disposal Without Trial Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 9 — Disposal Without Trial

Chapter 9 Disposal Without Trial Page 315 [Current to May 2018]

Introduction

9.1 Leaving to one side appellate and judicial review processes, the culmination of the litigation process is the delivery of judgment after a trial of the issues in dispute. The path to judgment is often cumbersome as preparing for trial generally involves much time, effort and resources. Typically, the path requires the collection of primary information and documents; the formulation of a case theory, causes of action, and defences; disclosure; preparation of witness statements; the commissioning of expert reports; the prosecution and defence of interlocutory processes; the drafting of submissions; and the preparation of trial books.

9.2 This process is work intensive and may require considerable judicial involvement, such as interlocutory hearings and attentive case management. Only once the pre-trial processes are complete will a trial of the issues in dispute take place,1 during

Page 316 which the parties will present their evidence and submissions, and probe each other’s positions. The elaborate and resource intensive trial process represents an optimal means for securing a judgment on the merits. However, not every dispute requires such an intensive procedure and not every dispute justifies the expenditure of time and resources to the same degree, as the outcome may be just as satisfactorily determined by a more efficient and economical process.

1

The pre-trial processes are generally considered to be complete when the parties file a certificate of readiness for trial, or the court or registry accepts that the proceeding is ready to be tried. In the Federal Court, the court has the power to fix a trial date at a directions hearing: Federal Court Rules 2011 (Cth) r 5.04(3) (item 33). In New South Wales, the listing of trial is complex and it depends on the type of matter. While the court has the power to make any order as it thinks fit for fixing the time and place of trial (Uniform Civil Procedure Rules 2005 (NSW) r 29.3), the fixing of the trial date is generally done in accordance with the practice notes, which differ depending on the division of the court. For example, where a proceeding is commenced in the Common Law Division, the court may direct that it be run in the General Case Management List: Common Law Division Practice Note SC CL 5, [7]. In matters that are commenced by the filing and service of a statement of claim or general case management document,such as an Appendix A concise narrative, the matter is listed before the ‘List Judge’ when it is ready for trial so that the date and venue of trial may be fixed: Common Law Division Practice Note SC CL 1, [18]. Where the claim concerns only a liquidated amount, it is a ‘default proceeding’ such that it may be dealt with administratively until either default judgment is entered or a defence is filed. Where a defence is filed, the matter may be transferred to the General Case Management List where trial will be fixed in the usual way. Separate procedures exist for matters in the Administrative Law List, Defamation List,

Page 2 of 39 Chapter 9 Disposal Without Trial Possession List, and Professional Negligence List. Where a proceeding is filed in the Equity Division,the court, with the assistance of the parties, will establish a timetable that will include a trial date: Equity Division Practice Note SC EQ 1, [5.3]–[5.5]. Victoria is similar to New South Wales in that the procedures for setting a proceeding down for trial will depend on the list that it has run in. For example, in the Commercial List, a proceeding is set down for trial by order of a List Judge: Commercial Court Practice Note SC CC 1, [14.01]. In Queensland, a party who is ready for trial may prepare and sign a request for trial date in the approved

Page 316 form: Uniform Civil Procedure Rules 1999 (Qld) r 467(1). Ultimately,the trial date, can be set at a call-over, by a judge or magistrate, or by a registrar: Uniform Civil Procedure Rules 1999 (Qld) r 466. In South Australia,in an action in which orders have been made implementing a litigation plan, the court may, at any time, fix the trial date or the date at which a trial date will be fixed: Supreme Court Civil Rules 2006 (SA) r 120(1). If such an order is made, the party responsible for the carriage of the action is to procure the parties to certify in an approved form that the action is ready to proceed to trial: r 120(4). In Western Australia, a party cannot enter a cause or issue for trial unless it is ready for trial and has filed a certificate of readiness:Rules of the Supreme Court 1971 (WA) O 33 r 8. In Tasmania, if the case management rules apply (such as where the proceeding is not a personal injuries matter) then the parties must attend a directions hearing and the case will be set down for trial when a judge conducting the directions hearing is satisfied that the matter is ready to proceed to trial: Supreme Court Rules 2000 (Tas) r 416, see also r 414A. If the case management rules do not apply in Tasmania, then the parties must file a joint certificate of readiness: Supreme Court Rules 2000 (Tas) r 541. Before a joint certificate of readiness is filed, the parties must hold a pre-trial conference to, amongst other things, attempt to settle the matter: Supreme Court Rules 2000 (Tas) r 541. In the Australian Capital Territory, a certificate of readiness must be signed by all parties before a trial listing hearing is fixed: Court Procedures Rules 2006 (ACT) r 1306. In the Northern Territory, the parties must generally file a certificate of readiness for trial. At a directions hearing, if a judge or master is satisfied that a proceeding is ready for trial or, should in the interests of justice proceed to trial, a judge or master may order that the proceeding be placed on a trial list: Supreme Court Rules (NT) r 48.17. Once on a trial list, the registrar allocates the earliest available date based on various relevant considerations, such as urgency and expected length: r 48.21.

9.3 There are several categories of case in which the intensive use of procedural resources all the way to trial on the merits would be disproportionate and unwarranted. The first category includes cases where the defendant fails to respond to the claim. In these circumstances, a plaintiff may seek a default judgment against the defendant. In some jurisdictions, the first category includes cases where any party defaults in the completion of a required procedural step. In these jurisdictions,the party not in default may make application to the court for default judgment to be entered against the party who failed to perform. The second category includes cases where the plaintiff fails to disclose a reasonable claim or where the defendant fails to advance a reasonable defence, or where the claim or defence has no real prospect of success. In this category, the rules of court provide for more efficient and economical processes to resolve the dispute, such as by allowing a plaintiff or defendant to apply to the court to strike out a claim or defence, or obtain summary judgment. The third category includes cases where one of the parties has abused the court’s procedures in such a way that they are unjustifiably oppressive to another party or would bring the administration of justice into disrepute. In this category, the aggrieved party may apply to the court to dismiss or stay the offending party’s claim or defence for abuse of process. The present chapter is only concerned with the first two categories of cases, leaving the third to be considered in Chapter 7, 7.77, Chapter 11, 11.77 ff and Chapter 14, 14.30 ff.

Page 317

Default judgment Introduction

9.4 Neither a plaintiff nor a defendant is obliged to litigate. Axiomatically, a defendant is within its rights to refrain from responding to a claim. At the same time, the law must provide procedures to ensure that the defendant’s right to

Page 3 of 39 Chapter 9 Disposal Without Trial refrain from defending a claim does not create a barrier to the plaintiff ’s access to justice. In the abstract, there are three conceivable procedures the law might adopt. First, the law might adopt a procedure whereby no steps should be taken until the unresponsive defendant enters an appearance to contest or admit a claim. This is known as the suspension option, as it has the effect of suspending the proceedings until the defendant appears. Secondly, the law might provide for a procedure where, notwithstanding the defendant’s lack of response, the plaintiff must proceed and prove its claim in order to obtain judgment. This may be referred to as the process option, as it provides for a process irrespective of the defendant’s lack of participation. Thirdly, the law might provide for a procedure which allows a court to hold that a defendant’s failure to respond to a claim amounts to a waiver of the right to demand proof of the claim, and as a consequence the plaintiff becomes automatically entitled to judgment. We may refer to this as the forfeiture option, as the defendant forfeits the right to have the claim tested by litigation.

9.5 The first option is easily rejected for the obvious reason that if a defendant were able to prevent court adjudication by simply not responding, the defendant would in effect be able to deny the plaintiff adjudication on the claim and thereby access to justice. Since plaintiffs are entitled to court assistance to enforce their rights, regardless of a defendant’s wishes, the suspension option is universally rejected.2 Looking to the two remaining options, the choice is less straightforward. In support of the process option, it could be argued that a judgment is an official court pronouncement that is enforceable by coercive measures, and for this reason judgment should not be delivered unless the court is satisfied that the claim is well founded in law and fact. However, against this it may be said that litigation is an adversarial process designed to resolve conflicting claims between parties that are willing to engage in the process. Accordingly, if the defendant does not respond to the claim, there is no controversy that calls for adjudication and the plaintiff must prevail and obtain judgment in its favour.

2

See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 215; ; [2009] HCA 27 per Gummow, Hayne, Crennan, Kiefel, and Bell JJ. In Levy v Ellis-Carr [2012]EWHC 63 (Ch) at [33], Norris J observed: ‘Parties who think that [by failing to attend] they thereby compel the court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.’

9.6 Given that there are arguments which can be made in favour of both the process option and the forfeiture option, it is perhaps not surprising that Australian civil procedure has adopted a pragmatic approach that contains aspects of both options.Taking the forfeiture option, each jurisdiction in Australia adopts the general rule that where a defendant fails to respond to a claim properly served on it, the plaintiff is

Page 318 entitled to judgment for the remedy sought without any consideration of the underlying merits of the claim. However, taking the process option, each jurisdiction provides for a procedure whereby default judgment can be set aside to allow for adjudication on the merits. This procedure commonly requires the defendant to promptly apply to set aside the default judgment and advance a bona fide defence that has reasonable prospects of success.

9.7 Default judgment refers to judgments that have been made without a consideration of the facts and law on the merits. There are, however, other situations where a default judgment may be entered. A default judgment may be entered, for example,where a party has failed to comply with rules or court orders, or following the striking out of a

Page 4 of 39 Chapter 9 Disposal Without Trial defence.

Obtaining a default judgment

9.8 A default judgment is available in all but a few types of actions. It is not available in proceedings where: the claim is for unliquidated damages,3 or where discretionary or equitable relief is sought, such as a declaration or an injunction.4

3

The Federal Court Rules 2011 (Cth) provide that judgment may nevertheless be given but for damages to be assessed, or any other order: r 5.23(2)(d). In any event, the Federal Court may make any order it considers appropriate in the interests of justice (r 1.32), including an order that is inconsistent with the rules (r 1.34). See also Court Procedures Rules 2006 (ACT) r 1122; Uniform Civil Procedure Rules 2005 (NSW) r 16.7; Supreme Court Rules (NT) r 21.03(b); Uniform Civil Procedure Rules 1999 (Qld) r 284; Supreme Court Civil Rules 2006 (SA) r 229(1)(b); Supreme Court Rules 2000 (Tas) r 348; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1)(b); Rules of the Supreme Court 1971 (WA) O 13 r 3.

4

Where this relief is claimed, the Federal Court Rules 2011 (Cth) provide that judgment may be given for the relief claimed to which the court is satisfied that the plaintiff is entitled: 5.23(2)(c). In any event, the Federal Court may make any order it considers appropriate in the interests of justice (r 1.32), including an order that is inconsistent with the rules (r 1.35). See also Court Procedures Rules 2006 (ACT) r 1126; Uniform Civil Procedure Rules 2005 (NSW) r 16.10; Supreme Court Rules (NT) r 21.04(1); Uniform Civil Procedure Rules 1999 (Qld) r 286; Supreme Court Civil Rules 2006 (SA) r 228(2); Supreme Court Rules 2000 (Tas) r 353; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.04(1); Rules of the Supreme Court 1971 (WA) O 13 r 9.

9.9 Where default judgment is available as of right, such as in debt claims where a defendant has decided not to file a defence, the court registry is generally able to enter default judgment administratively without judicial input. In such cases,it is typically the registrar of the court who ensures that the correct documents have been filed by the plainiff and that there is a proper basis for default judgment. Default judgment is thereafter entered on the court record and file. In some jurisdictions,a judge may enter default judgment on the papers in chambers.

9.10 Where default judgment is not available as of right, it means that default judgment cannot be entered simply by an administrative process in the court registry or in chambers. Instead, an interlocutory judgment may be entered. An interlocutory judgment is a default judgment entered only on part of the claim with some issues remaining to be determined. For example, a default judgment may be entered on the issue of liability, often administratively, but a further hearing is required to determine

Page 319 the appropriate quantum, which may still be by default except that it involves a court hearing followed by final judgment.5 Each jurisdiction has its own idiosyncrasies yet the same substantive precepts are at their core.

5

See the rules referred to in notes 3 and 4.

Page 5 of 39 Chapter 9 Disposal Without Trial

Default judgment against a defendant

9.11 Different rules apply to default judgment in each Australian jurisdiction such that each jurisdiction has a procedure which is substantively similar but may have its own idiosyncrasies. Most Australian jurisdictions provide for a plaintiff’s right to request or apply for default judgment if the defendant fails to file a notice of appearance. In other jurisdictions, this concept is directly linked to the defendant’s failure to file a defence.

High Court

9.12 In the High Court, a plaintiff is able to apply to a justice for default judgment if the defendant has not filed an appearance within the appropriate time.6 The High Court requires as conditions to the entry of default judgment, proof of service of the writ of summons on the defendant and proof that the defendant has not filed any appearance.7 Proof is typically by affidavit.

6

High Court Rules 2004 (Cth) r 27.09.1. Where a defendant has been served with an application for special leave, it must file and serve on the plaintiff within 14 days a notice of appearance: r 41.04. A defendant served with a notice of appeal must within seven days file and serve on the appellant a notice of appearance: r 42.06.1. Rule 23.01.3 otherwise provides that a defendant to proceedings cannot take any step in a proceeding unless it has first filed an appearance.

7

High Court Rules 2004 (Cth) r 27.09.2.

Federal Court

9.13 The Federal Court Rules provide that, if a defendant is in default, the plaintiff may apply to the court for judgment.8 Rule 5.22 sets out that a party is considered to be in default if the party fails to: (a)

do an act required to be done, or to do an act in the time required, by these Rules; or

(b)

comply with an order of the Court; or

(c)

attend a hearing in the proceeding; or

(d)

prosecute or defend the proceeding with due diligence.

If the court is satisfied that default judgment should be entered, r 1.32 provides that the court can make any order it considers appropriate in the interests of justice. It is a condition of obtaining default judgment in the Federal Court that the plaintiff

Page 320 establishes that default has, in fact, occurred. This is typically done by affidavit filed in support of the application for default judgment.9

Page 6 of 39 Chapter 9 Disposal Without Trial 8

Federal Court Rules 2011 (Cth) 5.23. For a detailed discussion of the principles applicable to default judgment in the Federal Court of Australia,see ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 (No 2) [2011] FCA 1227

9

; Speedo Holdings BV v Evans

; ACCC v Yellow Page Marketing BV (No 2) [2011] FCA 352

.

K E Lindgren, L Armstrong, A Black, J Clark, D Cremean, P Hanks, N Moshinky, P Nichols, R Pepper, R Steinwall and D Williams, Practice and Procedure: High Court and Federal Court of Australia, Looseleaf, LexisNexis,Division 5.2 Orders on Default.

Australian Capital Territory

9.14 Rule 1117 of the Court Procedures Rules 2006 (ACT) provides that a defendant will be in default if it fails to file a notice of intention to respond, a defence, or notice of intention to respond and defence within 28 days after the claim is filed.10 The rules separately provide that the defendant will default if it files a notice of intention to respond but does not file a defence within 28 days after the claim is filed.11 However, r 1117(2)(a)(iii) provides that a defendant will not be in default if the defendant files a defence after the 28-day period but before default judgment is entered. As with r 16.2(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW), this rule is inconsistent with the overriding objective of Australian civil procedure and it ought to be abolished. Under the Court Procedures Rules 2006 (ACT), the plaintiff must file an affidavit of service of the originating claim and an affidavit in support of the application sworn by the plaintiff or a qualified person.12

10 For the relevant time limits, see Court Procedures Rules 2006 (ACT) r 102(1)(a). 11 Court Procedures Rules 2006 (ACT) r 117(1)(a)(ii). 12 Court Procedures Rules 2006 (ACT) r 1119.

New South Wales

9.15 In New South Wales, the plaintiff is able to apply for judgment to be given against the defendant in default, where ‘default’ includes the defendant’s failure ‘to file a defence within the time limited by r 14.3(1),which is 28 days after service of the statement of claim, or within such further time as the court allows’.13 The Supreme Court of New South Wales requires a motion for default judgment to be accompanied by an affidavit of service of the statement of claim, and an application in support of the application.14

13 Uniform Civil Procedure Rules 2005 (NSW) rr 16.2(1)(a) and 16.3(1)(a). 14 Uniform Civil Procedure Rules 2005 (NSW) r 16.3(2).

Northern Territory

9.16 The rules in the Northern Territory also provide separately for a failure to file an appearance and a failure to serve a defence within time. Each is considered to be a default capable of leading to the entry of default judgment.15 A plaintiff must file an affidavit of proof of service for an appearance default or an affidavit proving default if the defendant fails to file and serve a defence.16

Page 7 of 39 Chapter 9 Disposal Without Trial

Page 321

15 Supreme Court Rules (NT) rr 21.01(2) and 21.01(1). The timing for appearances is contained in r 8.04. Rule 14.04 provides that a defence is to be served within 14 days after filing an appearance or service of the statement of claim, or at any other time the court directs. 16 Supreme Court Rules (NT) 21.01(2) and r 21.01(3).

Queensland

9.17 In Queensland, a plaintiff may obtain default judgment in proceedings commenced by claim where the defendant has failed to file a notice of intention to defend the time specified in r 137.17 However, r 138 then provides that a defendant may file and serve a notice of intention to defend at any time, even if the defendant is in default of r 137. It is not immediately clear how r 138 is consistent with the overriding objective of Australian civil procedure, for the reasons set out above. A plaintiff must prove service of the claim on the defendant in support of its request or application for default judgment, which is done by affidavit of service.18

17 Uniform Civil Procedure Rules 1999 (Qld) r 281. Rule 137 provides that a notice of intention to defend must be filed by a defendant within 29 days after the day the claim is served. 18 Uniform Civil Procedure Rules 1999 (Qld) r 282.

South Australia

9.18 Rule 229 of the Supreme Court Civil Rules 2006 (SA) provides that default judgment may be entered without the court’s permission if a defendant does not file a defence within 28 calendar days after service of the plaintiff ’s statement of claim. This is done by filing the relevant form for default judgment with the registry.

Tasmania

9.19 In a similar fashion to Victoria, the rules in Tasmania expressly provide for a failure to enter an appearance and, separately, a failure to file and deliver a defence within time.19 In Tasmania, where the defendant has failed to appear, the plaintiff must file an affidavit of service of the writ on the defendant.20 Where the defendant has failed to file and serve a defence within time, the plaintiff ’s solicitor must certify in writing to the registrar that the defendant has failed to deliver a defence within time, or if the defendant is self-represented,an affidavit verifying the facts entitling him or her to enter judgment in default of defence.21

19 Supreme Court Rules 2000 (Tas) r 342. For the times within which a defendant must file a notice of appearance, see rr 98 and 99. See also r 154. A defendant is to file and deliver its defence to a statement of claim within 21 days after whichever is later in time between the service of the statement of claim or the time limited by the rules for filing a notice of appearance: r 266.

Page 8 of 39 Chapter 9 Disposal Without Trial 20 Supreme Court Rules 2000 (Tas) r 346(1). 21 Supreme Court Rules 2000 (Tas) r 346(2).

Victoria

9.20 Victoria provides rules for the plaintiff ’s right to default judgment in each of the specific circumstances of a failure to file an appearance and a failure to file a defence within time.22 However, r 16.2(2)(c) provides that a defendant will not be in default if it files a defence after the time limited by the rules or by the court, but before default judgment is given. It is submitted that r 16.2(2)(c) is inconsistent with the overriding

Page 322 objective of Australian civil procedure and it should be abolished, particularly in the light of the High Court’s judgments in Aon Risk Services Australia Ltd v Australian National University.23 As it stands, r 16.2(2)(c) is capable of inviting an attitude of non-compliance with time limits. It also provides an avenue for a defaulting defendant to cause a plaintiff to incur expense in preparing and filing the necessary documents for default judgment, only to have them swept to the side at the last minute by a defendant who suddenly wishes to defend the proceedings. The Supreme Court of Victoria typically requires the plaintiff to file a notice to the prothonotary requesting for a search of the court record to be conducted to ensure that there has been no appearance by the defendant and an affidavit proving service of the writ on the defendant.24

22 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.01. For the timing of notices of appearance in various specific circumstances, see r 8.04. For the timing of the filing of a defence (generally 30 days), see r 14.04. 23 Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; 239 CLR 175; ; [2009] HCA 27 . 24 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.01(3).

Western Australia

9.21 In Western Australia, a plaintiff may enter default judgment where a defendant fails to enter an appearance within the time limited for appearing.25 The Supreme Court of Western Australia requires an affidavit proving service on the defendant and endorsement of service, and any other evidence the court thinks fit to be satisfied that the defendant has failed to enter an appearance.

25 Rules of the Supreme Court 1971 (WA) O 13 r 1. As to the time within which a defendant must enter an appearance, see O 5 r 11.

Default judgment for failure to comply with procedural requirement

9.22 Default judgment is also available in some jurisdictions for the failure (or default) to comply with a procedural step. Rule 5.22(a) of the Federal Court Rules 2011 (Cth), for example, provides that a party will be in default where it fails to ‘do an act required to be done, or to do an act in the time required, by these Rules’. It is also a default to fail to

Page 9 of 39 Chapter 9 Disposal Without Trial comply with any order of the court or attend a hearing.26 The South Australian rules provide that default judgment may be entered where any party has committed ‘some procedural irregularity that seriously prejudices the proper and expeditious conduct of the action’.27 It is submitted that to be consistent with the overriding objective, the threshold of what constitutes ‘seriously prejudices’ ought to be quite low, as any prejudice to the proper and expeditious conduct of the action may well be serious enough, especially if it leads to delay and waste of resources. In jurisdictions other than in the Federal Court and the Supreme Court of South Australia, procedural defaults are dealt with by case management powers, which are discussed in Chapter 11, 11.43 ff.

Page 323

26 Federal Court Rules 2011 (Cth) r 5.22(b) and (c). 27 Supreme Court Civil Rules 2006 (SA) r 228(1). See also Court Procedures Rules 2006 (ACT) r 1110.

Default judgment by request

9.23 A default judgment by administrative request is entered without any judicial involvement and no consideration is made of the claim on the merits. The request is made ex parte, and as such there is no requirement to notify the defaulting party of the request for default judgment. All the plaintiff need do is to file a request in the relevant form and judgment will be entered by a simple administrative act.28 However, the availability of default judgment by administrative request is limited and it is not available in all Australian jurisdictions.29

28 See B Cairns, Australian Civil Procedure, 11th ed, Lawbook Co, Sydney, 2016, [12.60] 513. 29 For example, r 27.09.1 of the High Court Rules 2004 (Cth) contemplates default judgment only by application made to a justice.

9.24 In those jurisdictions in which default judgment by administrative request may be entered, it is available in proceedings involving: 1. liquidated damages;30 2. debts;31 3. claims for possession of land;32 and 4. claims for detention of goods.33

30 Court Procedures Rules 2006 (ACT) r 1120; Uniform Civil Procedure Rules 2005 (NSW) r 16.6; Supreme Court Rules (NT) r 21.03(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 283; Supreme Court Civil Rules 2006 (SA) r 229(1)(a); Supreme Court Rules 2000 (Tas) rr 347 and 349; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 21.03(1); Rules of the Supreme Court 1971 (WA) O 13 r 2. 31 Court Procedures Rules 2006 (ACT) r 1120; Uniform Civil Procedure Rules 2005 (NSW) 16.6; Supreme Court Rules (NT) r 21.03(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 283; Supreme Court Civil Rules 2006 (SA) r 229(1)(a);

Page 10 of 39 Chapter 9 Disposal Without Trial Supreme Court Rules 2000 (Tas) rr 347 and 349; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1); Rules of the Supreme Court 1971 (WA) O 13 r 2. 32 Court Procedures Rules 2006 (ACT) r 1124; Uniform Civil Procedure Rules 2005 (NSW) r 16.4; Supreme Court Rules (NT) r 21.03(b); Uniform Civil Procedure Rules 1999 (Qld) r 286; Supreme Court Rules 2000 (Tas) r 350; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1); Rules of the Supreme Court 1971 (WA) O 13 r 5; South Australia does not provide a specific rule and so an application must be made for default judgment as it cannot be entered administratively. 33 Court Procedures Rules 2006 (ACT) r 1123; Uniform Civil Procedure Rules 2005 (NSW) r 16.5; Supreme Court Rules (NT) r 21.03(1)(c); Uniform Civil Procedure Rules 1999 (Qld) r 285; Supreme Court Civil Rules 2006 (SA) r 229(1)(c); Supreme Court Rules 2000 (Tas) r 349; Supreme Court (General Civil Procedure) Rules 2015(Vic) r 21.03(1); Rules of the Supreme Court 1971 (WA) O 13 r 4.

9.25 Claims for a liquidated sum are not confined to debt and can include claims for damages or any claim valued in money. If, in a request for a judgment for a liquidated sum, the plaintiff has specified the date by which the sum claimed is to be paid in full, or the times and rates of payment, judgment will generally be given accordingly.

9.26 In the Federal Court, where an application is made for default judgment on a claim for a liquidated sum, an amount may be included in the judgment for interest and costs if the court considers it ‘appropriate’.34

Page 324

34 Federal Court Rules 2011 (Cth) r 5.23(2)(b)(ii).

9.27 In the Australian Capital Territory, default judgment for an unliquidated sum may include an amount of interest and costs.35 The amount of interest is generally stated in the affidavit in support and calculated from the date of issuing the originating claim, unless the interest period is stated in the claim.

35 Court Procedures Rules 2006 (ACT) rr 1120(2)(a) and (b), and 1121.

9.28 In New South Wales, the rules provide that a default judgment for a liquidated sum may include ‘interest up to judgment’ and ‘costs’.36 Section 100 of the Civil Procedure Act 2005 (NSW) provides that ‘interest up to judgment’ means that ‘the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit’.37

Page 11 of 39 Chapter 9 Disposal Without Trial

36 Uniform Civil Procedure Rules 2005 (NSW) r 16.6(1)(b) and (c). 37 Civil Procedure Act 2005 (NSW) s 100(1).

9.29 In the Northern Territory, like in Victoria, the rules distinguish between debts which carry interest and debts which do not. In each scenario in the Northern Territory, interest runs from the commencement of the proceedings to the date of the judgment.38 Where the debt carries interest, default judgment will include the debt plus the interest at the rate the debt carries.39 Where the debt does not carry interest, the court may award interest at a rate determined by it.40 Costs are also recoverable.41

38 Supreme Court Rules (NT) r 21.03(1)(a). 39 Supreme Court Rules (NT) r 21.03(1)(a)(i). 40 Supreme Court Rules (NT) r 21.03(1)(a)(ii). 41 Supreme Court Rules (NT) r 21.03(2).

9.30 In Queensland, where default judgment is requested on a liquidated sum, interest may be included and it is calculated from the time the proceedings commenced to the date of judgment at a rate specified in the claim or under s 53 of the Civil Proceedings Act 2011 (Qld).42 Costs may also be claimed for issuing the claim, obtaining the judgment, and any other reasonably incurred and paid fees.43

42 Uniform Civil Procedure Rules 1999 (Qld) r 283(2)(a). 43 Uniform Civil Procedure Rules 1999 (Qld) r 283(2)(b).

9.31 South Australia is the only jurisdiction not to mention in its rules on default judgment whether interest is recoverable on a liquidated sum. However, s 30C(1) of the Supreme Court Act 1935 (SA) provides that where ‘judgment for the payment of damages, compensation or any other pecuniary amount has been, or is to be, pronounced’, the judgment sum may include ‘interest in favour of the judgment creditor’. The interest is calculated at a rate fixed by the court and, for a liquidated sum, the interest will run from when the liability to pay the sum fell due to the date of judgment.44 The default judgment rules do provide that a plaintiff is entitled to costs up to the date of entering judgment.45

44 Supreme Court Act 1935 (SA) s 30(C)(2). 45 Supreme Court Civil Rules 2006 (SA) r 229(4).

Page 12 of 39 Chapter 9 Disposal Without Trial

9.32 In Tasmania, r 347(1)(a) of the Supreme Court Rules 2000 (Tas) provides that pre-judgment interest may be awarded on a default judgment calculated at a rate stipulated in any contract or statute up until the day on which final judgment is entered.46 Where

Page 325 the claim states that the plaintiff is entitled to pre-judgment interest under s 34(1) of the Supreme Court Civil Procedure Act 1932 (Tas), being interest at the prescribed rate from the time the sum became payable, then an amount representing that interest will be entered up until the day on which final judgment is entered.47 Costs are also recoverable as set out in r 347(2) of the Supreme Court Rules 2000 (Tas).

46 Supreme Court Rules 2000 (Tas) r 347(1)(a). 47 Supreme Court Rules 2000 (Tas) r 347(1)(b).

9.33 In Victoria, the rules provide two separate mechanisms to recover interest in a default judgment. First, where default judgment is entered for a debt which carries interest (such as where a contract the subject of the debt provides for a rate of interest), then judgment will include the debt with interest calculated at that rate.48 For any other debt, interest may be awarded at rates payable on judgments generally.49

48 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1)(a)(i). 49 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1)(a)(ii).

9.34 In Western Australia, interest under s 32 of the Supreme Court Act 1935 (WA) may be included in a default judgment for a liquidated sum.50 Section 32 of the Act provides that in any proceedings ‘for the recovery of any money (including any debt or damages or the value of any goods), the Court may order’ that the judgment is to include interest ‘at such a rate it thinks fit’. It was explained in St Barnabas Nominees Pty Ltd v Stallard Corp Pty Ltd (No 2),51 that the award of interest under s 32 is discretionary.52

50 Rules of the Supreme Court 1971 (WA) O 13 r 2(3). 51 St Barnabas Nominees Pty Ltd v Stallard Corp Pty Ltd (No 2) [2011] WASC 289 at [10] 52 See also MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 666 321 at 328–9; [2000] HCA 42 at [16] 161 at [162]

per Murphy JA.

per Edelman J.

per the court; Grincelis v House (2000) 201 CLR

per the court; Cardno BSD Pty Ltd v Water Corporation (No 2) [2011] WASCA

Page 13 of 39 Chapter 9 Disposal Without Trial

9.35 Where the claim is for detention of goods or alternatively payment of their value, the request judgment will generally be for delivery and, if the defendant fails to comply, for payment of the value to be decided by the court and costs.53

53 Court Procedures Rules 2006 (ACT) r 1123; Uniform Civil Procedure Rules 2005 (NSW) 16.5(1); Uniform Civil Procedure Rules 1999 (Qld) r 285(2); Supreme Court Civil Rules 2006 (SA) r 229(1)(c); Supreme Court Rules 2000 (Tas) r 349; Rules of the Supreme Court 1971 (WA) O 13 r 4(1)(a). Under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(d), interlocutory judgment is entered against the defendant either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed, and if the claim is made for the recovery of damages for the detention of the goods — for the damages to be assessed. Under r 21.03(1)(d) of the Supreme Court Rules (NT), interlocutory judgment may be entered either for the delivery of goods or their value to be assessed or the value of the goods to be assessed, and if a claim for damages is made, for the damages to be assessed.

Default judgment by application

9.36 Where a party is seeking default judgment in a case where the statement of claim seeks unliquidated damages or equitable relief, such as a declaration or an injunction, an application for default judgment is required to be made to the court,and default judgment cannot be entered by request. Where default judgment is by application, an interlocutory judgment is normally entered on liability. The court will enter a final

Page 326 judgment after it has determined the appropriate remedy,which does not involve an examination of the underlying merits of the claim. Instead, the court is confined to an examination of whether the plaintiff is entitled to the remedy on the pleadings. Namely, the court will proceed on the assumption that the plaintiff ’s allegations are true and proceed to order the appropriate remedy.

9.37 The interlocutory application procedure set out in Chapter 8, 8.10 ff must be followed for the default judgment applications in cases where the statement of claim seeks unliquidated damages or equitable relief, such as a declaration or an injunction.

Setting aside a default judgment

9.38 A default judgment cannot be challenged by way of appeal. As a default judgment is purely an administrative act there is no judicial pronouncement against which to appeal. This explanation fails to account for the absence of an appeal against a default judgment by application, which does involve some judicial consideration of the claim in the assessment of quantum. The better explanation is that a defendant who chooses not to contest the claim at first instance cannot later turn around and demand an opportunity to contest it before an appellate court. This does not mean that a default judgment is unchallengeable. On the contrary, a defendant may apply to the court that entered the default judgment to have it set aside. The phrase ‘set aside’ is a legal term of art which means to cancel or declare invalid an order or judgment such that it ceases to have any effect.54 An application to set aside a default judgment is concerned with whether the judgment was properly entered and, if it was, whether the defendant deserves a second chance to contest the claim on the merits.

Page 14 of 39 Chapter 9 Disposal Without Trial

54 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220

; Cohen v Asssociated Dominions Assurance

Society Pty Ltd (1946) 73 CLR 435 . See also P Butt (ed), Butterworths Concise Legal Australian Dictionary, 3rd ed, LexisNexis Butterworths, Sydney, 2004, p 395.

Setting aside as of right

9.39 If a default judgment is irregularly obtained, the defendant may be able to set it aside as of right (ex debito justitae). A default judgment is irregularly entered where the conditions for obtaining a default judgment under the rules were not met. This is the easiest way to set aside a default judgment as all the defendant needs to do is establish that there was an irregularity in obtaining the default judgment.

9.40 Irregularities established on the authorities include default judgments entered where: 1. the conditions to obtain default judgment referred to above at 9.21 ff are not complied with;55 2. judgment was given for a claim that was not pleaded;56

Page 327   3. judgment was obtained in bad faith;57 4. judgment was premature;58 5. there was improper service of the originating documents;59 6. there was a liquidated sum that was not, as a matter of law, liquidated;60 7. judgment was for an excessive quantum;61 8. judgment was entered against defendants in both their personal and representative capacities.62

55 Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132 (the condition requiring evidence to be filed in affidavit form that a defence had not been filed was not complied with). Other conditions include the filing of an affidavit of proof of service, if necessary and appropriate. 56 RT Co Pty Ltd v Minister of State for Interior (1957) 98 CLR 168 at 170; [1957] HCA 39 57 Daly v Silley [1960] VR 353

per Dixon J.

; Australian Musical Distribution Pty Ltd v Whebell [1969] QWN 40

58 Anlaby v Praetorius (1888) 20 QBD 764

.

.

59 Thomas Bishop Ltd v Helmville Ltd [1972] 2 WLR 149

; Carron Investments Pty Ltd v Lang [2016] VSCA 287

per Warren CJ and Ferguson JA. 60 Alexander v Ajax Insurance Co Ltd [1956] VLR 436

.

Page 15 of 39 Chapter 9 Disposal Without Trial 61 Hughes v Justin [1894] 1 QB 667 . However, if the judgment is entered and the quantum is for less than is due to the plaitniff, res judicata precludes the plaintiff from commencing a fresh action and so the judgment must be amended or set aside: Chamberlain v Deputy Federal Commr of Taxation (1988) 164 CLR 502; 78 ALR 271 Chamberlain v Federal Commr of Taxation (1991) 28 FCR 21; 98 ALR 617 62 Westpac Banking Corporation v Garrett [2004] SASC 265

. However, see

.

.

9.41 While an irregular default judgment cannot stand as it was, there may be situations where the court might be able to cure the irregularity.63 For example, the court may be able to vary or amend a default judgment. What is clear, however, is that an irregularly obtained default judgment must be corrected.64 In Building Guarantee & Discount Co Ltd v Dolejsi,65 the plaintiff obtained default judgment for an excessive sum. The defendant applied to set aside the default judgment on the basis that it was irregular. However, the plaintiff simultaneously applied to amend the judgment so that the judgment sum was reduced to the correct amount. The court decided to set aside the default judgment as it was irregularly obtained and, given that the defendant had taken steps to defend the proceedings, the court ordered the defendant to file a defence within 10 days. A court would now need to consider whether providing a defendant with a further opportunity to defend in the context of correcting an irregularity is consistent with the overriding objective.

63 City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463 Luck (1995) 4 Tas R 328

.

64 RT Co Pty Ltd v Minister of State for Interior (1957) 98 CLR 168 Co Ltd [1964] 2 QB 10

; Australia & New Zealand Banking Group Ltd v

; [1964] 2 WLR 98

; Bolt & Nut Co (Tipton)Ltd v Rowlands Nicholls &

; [1964] 1 All ER 137 (CA)

65 Building Guarantee & Discount Co Ltd v Dolejsi [1967] VR 764

.

.

Setting aside as a matter of discretion

9.42 The court has discretion to set aside a default judgment where it has been regularly entered. As with the exercise of all discretions, the discretion must not be exercised by reference to irrelevant considerations, must be exercised judicially,and exercised by reference to the facts connected with or leading up to litigation.66 Although the discretion to set aside a default judgment is not fettered, practices and

Page 328 guidelines have been refined by the incremental development of the common law.67 These practices do not confine the discretion but do promote efficient decision-making and reduce the potential for arbitrary and capricious decision-making.68

66 Latoudis v Casey (1990) 170 CLR 534

at 537 per Mason CJ. See also TSC Nominees Pty Ltd v Canham

Commercial Interiors Pty Ltd [2017] VSC 86 at [43]

per Derham AsJ.

67 Save for in the Federal Court as outlined above at 9.43 ff. In Evans v Bartlam [1937] AC 473 at 479 , Lord Atkin considered that the discretion to set aside a default judgment is unfettered and that all of the circumstances of the

Page 16 of 39 Chapter 9 Disposal Without Trial case must be considered, including that the plaintiff to set aside a default judgment produce to the court evidence that it has a prima facie case. Evans v Bartlam has been cited with approval in Kostokanellis v Allen (1974) VR 596 at 603 per Harris J and Linkenholt Pty Ltd (ACN 005 710 181) v Quirk [2000] VSC 166 at [13]

per Gillard J. On the limitations

of unfettered discretions, see Jackamarra v Krakouer (1998) 195 CLR 516 at 527

per Gummow and Hayne JJ, and

at 539 per Kirby J; Oshlack v Richmond River Council (1998) 193 CLR 72 at 86

per Gaudron and Gummow JJ;

Trkulja v Dobrijevic [2015] VSCA 281 at [27] 68 Rosing v Ben Shemesh [1960] VR 173

per the court. ; Kostokanellis v Allen [1974] VR 596 at 603

per Harris J; Norbis v

Norbis (1986) 161 CLR 513 at 519

per Mason and Deane JJ, and 537 per Brennan J; Oshlack v Richmond River

Council (1998) 193 CLR 72 at 86

per Gaudron and Gummow JJ; Ying v Perpetual Trustees Victoria Ltd [2012]

VSCA 316 at [39]

per the court.

9.43 Throughout Australia, the discretion to set aside a default judgment is largely unfettered. The rules of the states simply provide for setting aside a default judgment without prescribing any preconditions to the exercise of the discretion.69 The Federal Court’s power to set aside a default judgment, however, is found in its general power to set aside a judgment or order after it has been entered if: (a)

it was made in the absence of a party; or

(b)

it was obtained by fraud; or

(c)

it is interlocutory (that is, before the appropriate remedy is determined); or

(d)

it is an injunction or for the appointment of a receiver; or

(e)

it does not reflect the intention of the court; or

(f)

the party in whose favour it was made consents; or

(g)

there is a clerical mistake in a judgment or order; or

(h)

there is an error arising in a judgment or order from an accidental slip or omission.70

69 Court Procedures Rules 2006 (ACT) r 1128; Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 and 36.16(2)(a); Supreme Court Rules (NT) r 21.07; Uniform Civil Procedure Rules 1999 (Qld) r 290; Supreme Court Civil Rules 2006 (SA) r 230; Supreme Court Rules 2000 (Tas) r 355; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.07; Rules of the Supreme Court 1971 (WA) O 13 r 14. 70 Federal Court Rules 2011 (Cth) r 39.05.

9.44 The following considerations have emerged in the cases as common to the positive exercise of the discretion to set aside a regular default judgment:71 1. a prima facie defence on the merits;72

Page 329

Page 17 of 39 Chapter 9 Disposal Without Trial   2. a satisfactory explanation for the default;73 3. no unreasonable delay in applying to set aside the default judgment.74 These categories are not exhaustive.

71 Cuttle v Brandt (1947) 64 WN (NSW) 96 at 97 (1989) 2 WAR 196 6 VR 245 at[23] VSC 45 at [29]

per Herron J; Esther Investments Pty Ltd v Markalinga Pty Ltd

; Jackamarra v Krakouer (1998) 195 CLR 516 at 542–3

per Kirby J; Victoria v Davies (2003)

per Batt JA; Cook v DA Manufacturing Co Pty Ltd (2004) QCA 52; Vimplane Pty Ltd v Cirss [2005] per Habersberger J.

72 Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd’s Rep 221, CA; National Australia Bank Ltd v Singh [1995] 1 Qd R 377

; Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34

; Law v St Margarets Insurances Ltd [2001] EWCA Civ 30; [2001] All ER (D) 97 (Jan); Mearns v Willoughby Community Preschool Inc [2003] NSWCA 382

.

73 Violi v Commonwealth Bank of Australia [2015] NSWCA 152

per Emmett JA.

74 National Australia Bank v Singh [1995] 1 Qd R 377 at [379]–[380]

per Pincus JA.

A prima facie defence

9.45 A plaintiff seeking to set aside a default judgment as a matter of discretion must establish that it has a prima facie defence on the merits. The consideration of whether the defendant has a prima facie defence to the claim reflects a preference for the process option. That is, there is a preference for judgments to be given on the merits when possible. It also amounts to recognition that it is futile to set aside a default judgment where the defendant cannot, in any event, defend the proceedings because it has no realistic defence.75 For this reason, the starting point is to consider whether the defendant has a prima facie defence to the claim. The burden is on the defendant to satisfy the court that there is good reason why a judgment regularly obtained ought to be set aside.76 The cases indicate that the threshold of whether there is a prima facie defence is a low one.77 However, it is a threshold which not all defences on the merits can satisfy.78

75 This was explained by Sackville AJA in Dai v Zhu [2013] NSWCA 412 at [89] Stockdale [1942] NSWSR 31; (1942) 42 SR (NSW) 239 at 243 concurred), citing Evans v Bartlam [1937] AC 473

. See also Vacuum Oil Co Pty Ltd v

per Jordan CJ (with whom Davidson and Roper JJ

at 482

per Lord Russell; Magnate Projects Pty Ltd v

Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [48]–[51] per Hodgson JA (with whom MW Campbell AJA agreed) (holding that the principles stated in Vacuum Oil have not materially been affected by the reasoning of the High Court in Taylor v Taylor (1979) 143 CLR 1; ; [1979] HCA 38 , and Allesch v Maunz (2003) 203 CLR 172; ; [2000] HCA 40). For the English position, which is somewhat analogous, see International Finance Corp v Utexafrica Sprl [2001] All ER (D) 101 (May); [2001] CLC 1361 at 1363

per Moore-Bick J. See also E D & F Man Liquid

Products v Patel [2003] EWCA Civ 472; ; [2003](D) All ER 75 (CA) at [8] 76 Jackamarra v Krakouer (1998) 195 CLR 516 at 540 EWCA Civ 472; [2003] (D) All ER 75

per Potter LJ.

[66] per Kirby J; E D & F Man Liquid Products v Patel [2003]

; Oliver v Citigroup Pty Ltd [2016] QCA 261 at [19][20]

per Gotterson and

Page 18 of 39 Chapter 9 Disposal Without Trial Philippides JJA and Boddice J; TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd [2017] VSC 8 at [121] per Derham AsJ. This is in contrast to an application for summary judgment where the burden of proof rests upon the plaintiff to establish that the defendant has no real prospects of success. 77 See, for example, Vimplane Pty Ltd v Cirss [2005] VSC 45 at [38] per Habersberger J, where it could not be said that the defendant did not have a prima facie case as there were conflicting affidavits before the court. See also Farrow Mortgage Services Pty Ltd (in liq) v Griggs (SASC, Prior J, 25 March 1992, unreported). 78 Pyramid Building Society v Viewbank Garden Estate [1998] VSC 104 at [11]–[20]

per Smith J.

9.46 For the court to be able to be convinced that a defendant has a prima facie case, the defendant is required to put evidence before the court in relation to its defence. In Mearns v Willoughby Community Preschool Inc,79 the New South Wales Court of Appeal considered an appeal against a decision of a judge who refused to set aside a default

Page 330 judgment regularly obtained. In dismissing the appeal on the basis that no proper defence had been filed, Hodgson JA said: … if there had been a verified defence available asserting in relation to some or all of the transactions … that might have been a sufficient indication of a defence on the merits to justify setting aside the judgment.80

79 Mearns v Willoughby Community Preschool Inc [2003] NSWCA 382

.

80 Mearns v Willoughby Community Preschool Inc [2003] NSWCA 382 at [18]

per Hodgson JA.

9.47 The Old System approach to setting aside a default judgment, which placed paramount significance on whether the defendant had a prima facie case, has changed in the light of the overriding objective. In Kaur v Kooner,81 Cosgrave J observed: While I accept that having a bona fide or arguable defence on the merits is important in applications of this kind, it cannot be said as an invariable rule that such a factor must take precedence over other considerations which the Court can take into account in deciding whether or not to set aside the judgment.82

Such other factors, Cosgrave J identified, included that ‘recognition must be given to one of the main purposes of the Act, namely, to facilitate the just, efficient, timely and cost effective resolution of the real issue in dispute between litigants’.83 This approach to applications for default judgment is to be supported.

81 Kaur v Kooner [2013] VCC 1788. 82 Kaur v Kooner [2013] VCC 1788 at [62] per Cosgrave J. See also TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd [2017] VSC 8 at [62]

per Derham AsJ.

83 Kaur v Kooner [2013] VCC 1788 at 53 per Cosgrave J.

Page 19 of 39 Chapter 9 Disposal Without Trial

Explanation for default

9.48 Traditionally, failure to provide an explanation for the relevant default, including an explanation for the failure to file a defence, was considered to be not necessarily fatal to an application to set aside (given the importance attached to giving judgments on the merits), but it is commonly a relevant consideration.84 For example, in Linkenholt Pty Ltd (ACN 005 710 181) v Quirk,85 after receiving the Supreme Court writ, the defendant wrote to the plaintiff’s solicitors and informed them that he did not intend to file an appearance. Judgment was entered and the defendant did not engage with the plaintiff until a bankruptcy notice was served on it. However, Gillard J held that there is no rule that a defendant must have a ‘justifiable explanation’ or a reasonable explanation as to why it allowed the judgment to go by default.86 It was considered that whether or not the defendant had a prima facie defence was of paramount importance. In Violi v Commonwealth Bank of Australia,87 Emmett JA reasoned:

Page 331   In circumstances where there is no adequate explanation for the failure to file a defence or the delay in seeking to have default judgment set aside once it came to the attention of Mr Violi, the interests of justice require that he demonstrate a defence that has reasonably strong prospects of success. The question is whether the merits and strength of the proposed defence outweigh the absence of an adequate explanation for the failure to file a defence in time. … 88

It is submitted that this reasoning is inconsistent with the overriding objective outlined in Chapter 1, 1.40 ff, and has been inconsistent as a matter of common law since at least Aon Risk Services Australia Ltd v Australian National University.89 Where a defendant offers to the court no explanation as to why it has failed to respond, the only inference available to be drawn by the court is that the defendant has chosen not to respond, whether it be to a claim or a default judgment.It should not matter that a defaulting party later comes to court with a good defence. To set aside a default judgment in these circumstances would be to pay little regard to the overriding objective.

84 Shepperdson v Lewis (1966) VR 418 at 423–4 per Smith J; Kostokanellis v Allen (1974) VR 596 at 603 per the court; Pyramid Building Society v Viewbank Garden Estate [1998] VSC 104 at [10]

per Smith J; Linkenholt Pty Ltd (ACN

005 710 181) v Quirk [2000] VSC 166 at [17][21] per Gillard J. For the English position, see, for example, MacDonald v Thorn plc [1999] CPLR 660 (CA); Manolakaki v Constantinides [2003] EWHC 401 (Ch); Huntingdon Life Sciences Group v Stop Huntingdon Animal Cruelty(No 2) [2004] EWHC 3145 (QB). 85 Linkenholt Pty Ltd (ACN 005 710 181) v Quirk [2000] VSC 166

.

86 Linkenholt Pty Ltd (ACN 005 710 181) v Quirk [2000] VSC 166 at [27] 87 Violi v Commonwealth Bank of Australia [2015] NSWCA 152

per Gillard J.

.

88 Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [10]

per Emmett JA.

89 Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; 239 CLR 175; [2009] HCA 27

9.49

.

Page 20 of 39 Chapter 9 Disposal Without Trial To discharge the requirements of the overriding objective, the modern approach to setting aside a default judgment ought to require the party in default to provide compelling reasons for its failure to take the necessary step in the action.90 There should be little sympathy for a defendant who delays because they prefer to take a vacation, for example.91 If the plaintiff has changed its position in reliance on the judgment, a defendant would be unlikely to succeed in an application to set aside after considerable delay.92

90 Cubelic v T & D Lock Pty Ltd [2009] SASC 397 J.

. See also Sandery v Kowalski [2017] SASC 29

91 See Barclays Bank of Swaziland Ltd v Hahn [1989] 2 All ER 398; [1989] 1 WLR 506 92 Strachan v Gleaner Co Ltd [2005] UKPC 33; [2005] 1 WLR 3204

(HL)

per Vanstone

.

.

Delay in setting aside a default judgment

9.50 The rules do not prescribe a time within which an application to set aside a default judgment is to be made. Decisions delivered during the Old System of civil justice outlined in Chapter 1, 1.1 ff gave priority to the justice on the merits philosophy of civil justice, which is no longer good law.93 For example, in National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd,94 McPherson J said: It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff.95

The overriding objective of procedural justice is now applicable to the exercise of the discretion to set aside a default judgment, as was made clear by the New South Wales

Page 332 Court of Appeal in Dai v Zhu.96 This means that a defaulting defendant who has a prima facie defence may be refused its application to set aside a default judgment on the basis that the delay was egregious.97 In Kostokanellis v Allen,98 the Full Court of the Supreme Court of Victoria considered that proper regard ought to be had to the length of, and reason for, the delay to make a set-aside application. An application needs to be made within a reasonable time. Any delay in doing so needs to be explained by affidavit.99 Delay in making the application may lead to the court refusing the exercise of the discretion.

93 Grimshaw v Dunbar [1953] 1 QB 408

at 415

per Jenkins LJ.

94 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441

.

95 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449 McPherson J. 96 Dai v Zhu [2013] NSWCA 412

.

97 Henriksen v Pires [2011] EWCA Civ 1720. 98 Kostokanellis v Allen [1974] VR 596

.

per

Page 21 of 39 Chapter 9 Disposal Without Trial 99 There is some English authority which suggests that the application may be brought as late as after the court has assessed damages at a subsequent hearing: Strachan v Gleaner Co Ltd [2005] UKPC 33; [2005] 1 WLR 3204 But see Hawley v Luminar Leisure plc [2006] EWCA Civ 18 at [93] per Hallett LJ.

.

9.51 In National Australia Bank Ltd v Singh,100 the plaintiff served on the defendant a claim for a liquidated sum. The defendant advanced points in its defence but did not enter an appearance. The plaintiff entered judgment for the liquidated sum. The defendant did not apply to set aside the default judgment until it was served with a bankruptcy notice. In exercising discretion to set aside the default judgment, Pincus JA accepted the explanation for the delay but went on to note that the defence had reasonable prospects of success.

100 National Australia Bank Ltd v Singh [1995] 1 Qd R 377

.

9.52 In New South Wales under r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR (NSW)), the court has discretion as to whether or not to set the judgment aside. In Violi v Commonwealth Bank of Australia,101 Emmett JA found that, in breach of r 16.6(2)(f) and r 35.8(2)(a) of the UCPR (NSW), the affidavit filed in support of the application for default judgment did not state when and how the relevant documents were served on the defendant. In deciding whether to set aside the default judgment under r 36.15(1), Emmett JA concluded that as the defendant failed to provide any evidence to explain his delay in seeking to set aside the default judgment after he became aware of it, and as the defendant’s proposed defence had no reasonable prospects of success, the default judgment was not set aside.

101 Violi v Commonwealth Bank of Australia [2015] NSWCA 152

.

9.53 In Regency Rolls Ltd v Carnall,102 a delay of four weeks was considered to be excessive and the application to set aside the default judgment was dismissed. The English court has also dismissed an application to set aside a default judgment which was made one year after judgment was entered irrespective of whether the defendant had reasonable prospects of defending the claim and notwithstanding that the delay was explainable by a lack of available funds.103

Page 333

102 Regency Rolls Ltd v Carnall [2000] All ER 1417, CA. In Harrison v Hockey [2007] All ER 336 (Ch), a delay of four and a half months was considered excessive. 103 Standard Bank plc v Agrinvest International Inc [2009] EWHC 1692 (Comm).

Page 22 of 39 Chapter 9 Disposal Without Trial

Other considerations

9.54 As the jurisdiction to set aside a default judgment is discretionary and the considerations mentioned above are not exhaustive, other factors may be taken into account. Relevant factors include the nature of the defence and the prejudice that the plaintiff would suffer if the default judgment were set aside. Thus, for instance, the court may refuse to set aside a default judgment where the defendant deliberately decided not to defend the claim and applied to set aside the default judgment only when it realised that the plaintiffs were in a position to enforce the judgment against it.104 In TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd,105 Derham AsJ said: Other factors include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled.It may also be relevant, where the default is that of an applicant’s legal representatives, to take into account any considerations personal to the applicant which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers.106

104 Linkenholt Pty Ltd (ACN 005 710 181) v Quirk [2000] VSC 166 . For the English position, see Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd’s Rep 221, CA. Compare this with Huntingdon Life Sciences Group v Stop Huntingdon Animal Cruelty (No 2) [2004] EWHC 3145, QB, where a defendant was able to set aside default judgment by relying on the defences of other defendants on the basis they had a reasonable prospect of success. 105 TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd [2017] VSC 8

per Derham AsJ.

106 TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd [2017] VSC 8 at [46] Jackamarra v Krakouer (1998) 195 CLR 516 at 543

per Derham AsJ, citing

per Kirby J.

9.55 The court has a number of options when deciding an application to set aside.107 It may dismiss the application and thus allow the judgment to stand, or it may grant the application and set aside the default judgment, or it may vary the default judgment. Further, the court may set aside the default judgment subject to certain terms, such as payment into court by the defendant. Lastly, the court may set aside the default judgment and enter summary judgment instead. The court will normally make an appropriate costs order when it gives its decision on the application to set aside.

107 MacDonald v Thorn plc [1999] CPLR 660 (CA).

Judgment against plaintiff for want of prosecution

9.56 A plaintiff must prosecute its claim expeditiously. It cannot sit back and hold the defendant hostage to the court’s processes without progressing the proceedings. It must actively take steps to make sure the proceedings move

Page 23 of 39 Chapter 9 Disposal Without Trial towards resolution, whether it be by trial or by amicable resolution. Where a plaintiff fails to take steps to move the proceedings forward, its claim may be dismissed or stayed for want of prosecution. There are essentially two powers that the court may exercise to dismiss a claim for want of prosecution. The first is the inherent jurisdiction of the court. The second is the jurisdiction provided for by the various rules of court.

Page 334

9.57 In Weston v Publishing and Broadcasting Pty Ltd,108 Ward J noted that the authorities suggest that the ultimate question (keeping in mind the overriding objective) is whether, balancing the prejudice to the parties by making or not making an order dismissing the proceedings, justice demands that the action be dismissed.109 Irrespective of the jurisdiction, the discretion to dismiss for want of prosecution is informed by the same principles.110

108 Weston v Publishing and Broadcasting Pty Ltd [2011] NSWSC 433

.

109 Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405 NSWLR 749

; McKenna v McKenna [1984] VR 665

Insurance Co Ltd (1986) 4 NSWLR 491

; Southern Cross Exploration NL v Fire & All Risks

; Hartigan v International Krishna Consciousness [1999] NSWSC 57

Weston v Publishing and Broadcasting Pty Ltd [2011] NSWSC 433 at [501] [1999] NSWSC 527 at [20] LexisNexis, 2013, [12.7.5].

; Stollznow v Calvert [1980]2

;

per Ward J, citing Hoser v Hatcher

per Simpson J.See also Ritchie’s Commentary on Uniform Procedure Rules,

110 See Weston v Publishing and Broadcasting Pty Ltd (2011) 83 ACSR 206; ; [2011] NSWSC 433 at [498]–[502] per Ward J and the cases there cited. For a detailed list of potentially relevant considerations, see Weston at [502] per Ward J.

9.58 Default judgment against a plaintiff is not expressly contemplated in the rules of each jurisdiction. However, given that default judgment is available for procedural defaults other than the failure to file an appearance or a defence, there is no good reason why a defendant should not be able to apply for the claim to be dismissed and judgment entered in its favour where the plaintiff fails to comply with procedural requirements or does not attend court proceedings. Default judgment against a plaintiff, in the jurisdictions which provide for such a procedure, overlaps with the jurisdiction to strike out a claim on the basis of want of prosecution.

9.59 In the High Court, r 27.09.7 of the High Court Rules 2004 (Cth) provides that where a plaintiff, being required to file a statement of claim, fails to do so, the court or a justice may order that the proceeding is dismissed for want of prosecution. Federal Court procedure deals with these matters under its default judgment rule. That is, the circumstances of default specified in r 5.22 of the Federal Court Rules 2011 (Cth) expressly apply to the plaintiff equally as they do to the defendant. This means that if an act is required to be done by the plaintiff, or be done within a specified time, and the plaintiff fails to do the act,it will meet the definition of default. It will also amount to a default for the plaintiff to fail to comply with any order of the court, attend a hearing, or prosecute or defend the

Page 24 of 39 Chapter 9 Disposal Without Trial proceeding with due diligence. Rule 5.23(1) provides that where the plaintiff is in default, a defendant may apply to the court for an order that a step be taken in the proceeding within a specified time; or that the proceeding be stayed or dismissed in whole or in part immediately or on conditions specified in the order.

9.60 Rule 1110(1) of the Court Procedures Rules 2006 (ACT) provides that a defendant may apply to the court to dismiss proceedings for want of prosecution if the plaintiff is required to take a step or comply with the rules in some way and fails to do so within time. The court has the power to dismiss the proceedings or make any other order it considers appropriate: r 1110(2).

Page 335

9.61 In New South Wales, the position is more fragmented. Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides that if a plaintiff does not prosecute the proceedings ‘with due dispatch’, the court may order that the proceedings be dismissed. The court also has the power to make ‘such other order as the court thinks fit’, including a stay of proceedings. Rule 12.8 provides that a court may, of its own motion, dismiss proceedings if it appears from the court’s records that ‘for over 5 months’,no party to the proceedings has taken any step in the proceedings. Proceedings may also be dismissed where there has been a failure to comply with a case management direction, pursuant to s 61 of the Civil Procedure Act 2005 (NSW).

9.62 In the Northern Territory, where the plaintiff, being required to serve a statement of claim, fails to do so in the time limit, the court may order that the proceedings be dismissed for want of prosecution, under r 24.01 of the Supreme Court Rules (NT).

9.63 In Queensland, r 280 of the Uniform Civil Procedure Rules 1999 (Qld) provides that if the plaintiff or plaintiff is required by the rules to take a step or comply with an order within time and fails to do so, then a defendant or respondent may apply for an order dismissing the proceedings for want of prosecution.

9.64 In South Australia, r 123(1) of the Supreme Court Civil Rules 2006 (SA) provides that an action becomes liable to be entered on the list of inactive cases if three months after the end of the time allowed for serving an originating process has elapsed. If the case remains inactive for a further two months, then r 123(4) provides that the action is automatically dismissed for want of prosecution.

9.65

Page 25 of 39 Chapter 9 Disposal Without Trial In Tasmania, r 265(3) of the Supreme Court Rules 2000 (Tas) provides that if a plaintiff that is required to deliver a statement of claim fails to do so within the stated time, then the defendant may apply to the court to dismiss the action for want of prosecution. Rule 371 further provides that, on the hearing of such an application, if the plaintiff has still not delivered a statement of claim, then the court or a judge may dismiss the action or make any other appropriate order.

9.66 In Victoria, the court has the power pursuant to r 24.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to order that proceedings be dismissed for want of prosecution if the plaintiff: 1. being required to file and serve a statement of claim, fails to do so within the time limit; 2. does not within a reasonable time after commencement of the proceedings file and serve notice of trial or apply to have a date fixed for the trial of the proceedings; or 3. fails to file and serve notice of trial within the time allowed to the plaintiff by the court when fixing a date for the trial of the proceedings under r 48.02(b).

9.67 In Western Australia, O 33 r 2 of the Rules of the Supreme Court 1971 (WA) provides that where the plaintiff neglects to enter the proceedings for trial, any party on the record who is entitled to be heard generally may apply to the court to dismiss the proceedings for want of prosecution. On such an application, the court has the power to make any order as may be just, which includes dismissing the claim or striking out the relevant issue and allowing the matter to proceed to trial.

Page 336

9.68 Further cases on want of prosecution can be found in Chapter 1.111 Active case management has largely seen this category of case become less frequent.

111 See Shepperdson v Lewis [1966] VR 418

; White v Northern Territory (1989) 97 FLR 122

AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200 38

; [1977] 2 All ER 801

; Lenijamar Pty Ltd v

. See also Birkett v James [1978] AC 297

; [1977] 3 WLR

, which is discussed in Chapter 1, 1.26 ff.

Striking out statement of case as disclosing no reasonable claim or defence

9.69 The normal pre-trial and trial processes are necessary and useful for resolving serious controversies. Where a party advances a baseless claim or defence it would be wasteful to put the case through a comprehensive judicial adjudication. The striking out of pleadings is dealt with in Chapter 7, 7.77 ff, and the court’s responses to abuses of

Page 26 of 39 Chapter 9 Disposal Without Trial process are discussed in Chapter 11, 11.77 ff and Chapter 14, 14.30 ff.

Summary judgment Introduction

9.70 The strike-out procedure discussed in Chapter 7, 7.77 ff deals with the situation where a statement of claim reveals that one of the parties has failed to advance a reasonable case worthy of further consideration on the merits. However, there will also be situations where, although the statement of claim cannot be easily brushed aside, the issues that it presents can be easily decided without need for the normal pre-trial and trial processes. To insist that such disputes should nevertheless follow the full procedural course would waste valuable resources and,worse still, would enable unscrupulous litigants to harass their opponents by putting them to unnecessary trouble and expense and by keeping them out of their entitlements pending resolution of the case. As the overriding objective mandates, a litigant has the right to adjudication within a reasonable time, and where a claim is unanswerable this means a litigant has a right to insist that its resolution should not be delayed by an unnecessarily expensive and protracted process. The threshold, however,for a court to meet to order summary judgment is high.

9.71 Australian law, like English law, has evolved a summary judgment procedure for enabling litigants with a clear and unanswerable case to obtain judgment without having to negotiate the normal procedural hurdles.112 The employment of the normal adjudicative process can be sidestepped where it would make no useful contribution

Page 337 to the just determination of the dispute, over and above what could be achieved by a simple early hearing. Summary judgment may therefore be seen as an example of the principle of proportionality, in that the full procedure can be avoided as its deployment would be disproportionate to what it would achieve.113 Summary judgment may be delivered against a plaintiff or defendant where the claim or defence has no real prospects of success.

112 For the history of the summary judgment, see C Clark and C Samenow, ‘The Summary Judgment’ (1928) 38 Yale Law Journal 423; A Bauman, ‘The Evolution of the Summary Judgment Procedure’(1956) 31 Indiana Law Journal 329. For commentary on the English position, see J Ching, ‘Civil Procedure: Part 24 — How Real Is a Real Prospect of Success?’ (1999) 8 Nottingham Law Journal 28; D O’Brien, ‘The New Summary Judgment: Raising the Threshold of Admission’ (1999) 18 Civil Justice Quarterly 132. For an American perspective, see S Issacharoff and G Loewenstein,‘Second Thoughts About Summary Judgment’ (1990) 100 Yale Law Journal 73; W Schwarzer, ‘The Analysis and Decision of Summary Judgment Motions’ (1992) 139 Federal Rules Decisions 441; J Duane, ‘The Four Greatest Myths About Summary Judgment’ (1996) 52 Wash & Lee Law Review 1523. 113 In Jones v Stone [1894] AC 122 at 124 , Lord Halsbury said that summary judgment is ‘intended to apply only in cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow the defendant to defend for the mere purposes of delay’.

9.72 There is a substantial overlap between the power to strike out a claim as disclosing no cause of action, which was canvassed in Chapter 7, 7.77 ff, and the court’s jurisdiction to give summary judgment where a claim or defence

Page 27 of 39 Chapter 9 Disposal Without Trial has no real prospects of success.

Scope of the summary judgment procedure

9.73 Summary judgment is available in any type of proceedings and may be applied for by either the plaintiff or a defendant. However, the jurisdiction to grant summary judgment is exercised sparingly. As Barwick CJ explained in General Steel Industries Inc v Commissioner for Railways:114 [T]he jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.115

Summary judgment may dispose of the case as a whole or be confined to a particular issue. For example, the court may decide to give summary judgment on liability alone and defer the issue of quantum to trial, or it may confine summary judgment to the issue of causation if this is likely to assist the disposal of the case.116 Where the summary judgment is on the whole of the claim, the court will award the remedy sought.

114 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

.

115 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 1289

per Barwick CJ. See also

Jacobs v Booth’s Distillery Co (1901) 8S LT 262; Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5 Victorian Railways Commissioners (1949) 78 CLR 62 at 91

; Dey v

per Dixon J.

116 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 . For some comparable English decisions, see Green v Hancocks [2000] Lloyd’s Rep 813 and Sinclair Investment Holdings SA v Cushnie [2006] EWHC 219 (Ch).

9.74 It is part of the court’s active case management duties to ensure that disputes that do not require full procedural attention should be disposed of summarily. The appropriateness of summary judgment will depend on the extent to which it is likely to contribute to settlement of the remaining issues or to their expeditious and economical disposal. The court may therefore order summary judgment whenever it appears to it that the dispute can be justly resolved by these means.

Page 338

9.75 A summary judgment is a final judgment on the merits for all intents and purposes. It can be set aside only by way of appeal. An appeal against summary judgment is concerned with the correctness of the summary judgment decision on the basis of the materials that were available to the court below.

Summary judgment procedure

Page 28 of 39 Chapter 9 Disposal Without Trial

9.76 An application for summary judgment must be supported by an affidavit. The rules in each jurisdiction generally provide the minimum content of the supporting affidavit. For example, in r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff ’s affidavit must include evidence of the facts on which the claim or part of the claim is based, and evidence that the defendant has no defence to the claim or part of the claim. Rule 22.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that the supporting affidavit must verify the facts on which the claim is based, as well as stating that in the belief of the deponent the defence has no real prospect of success. Unless specifically provided for in the rule, notice of a summary judgment hearing must comply with the time periods for giving notice of any other interlocutory application.For these notice periods, see Chapter 8, 8.10 ff.

Dismissal of the application

9.77 Where the court is not satisfied that the plainiff has no real prospect of succeeding, or if it considers that there is some other compelling reason to allow the case to go to trial, it will simply dismiss the summary judgment application.Upon the dismissal of an application, or indeed where the court makes an order that does not dispose entirely of the case (including summary judgment on a particular issue only), the court may decide to give case management directions about the future conduct of the case and may make an order as to costs. For costs orders which may be made following dismissal of an interlocutory application, see Chapter 28, 28.5 ff.

Grounds for summary judgment

9.78 Depending on the state or territory of Australia, the test for summary judgment may differ. There are essentially three different tests for summary judgment, which are summarised in the below table. Test

Jurisdiction(s)

No claim or defence

High Court;117

 

New South Wales;118

 

Western Australia;119

 

Tasmania;120

Page 339   No real prospects of success

Australian Capital Territory;121

No reasonable prospects of success; or

Northern Territory.122

no reasonable basis for claim or defence

Victoria.123

 

Federal Court;124

 

South Australia.125

Page 29 of 39 Chapter 9 Disposal Without Trial

117 High Court Rules 2004 (Cth) rr 27.09.4(a) and 27.09.6. 118 Uniform Civil Procedure Rules 2005 (NSW) rr 13.2 and 13.4(1)(b). 119 Rules of the Supreme Court 1971 (WA) O 14 r 1(1) and O 16.1(1). 120 Supreme Court Rules 2000 (Tas) rr 356(1)(a) and 367(2). 121 Court Procedures Rules 2006 (ACT) rr 1146(2)(a) and 1147(2). 122 Supreme Court Rules (NT) rr 22.02(1) and 23.03(1). 123 Civil Procedure Act 2010 (Vic) ss 61 and 62; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 22.03 and 22.16. 124 Federal Court of Australia Act 1976 (Cth) s 31A; Federal Court Rules 2011 (Cth) r 26.01(1)(a). 125 Supreme Court Civil Rules 2006 (SA) r 232(2).

No claim or defence

9.79 The ‘no claim or defence’ test for summary judgment represents the original or ‘traditional’ test for summary judgment.126 The test provides that if it is made clear to the court by affidavit evidence that there is no issue of fact or law to be tried, then summary judgment may be entered.127 Such an application may be made by a plaintiff or defendant. In other words, summary judgment can be granted where a claim or defence discloses no question to be tried. In General Steel Industries Inc v Commissioner for Railways(NSW),128 Barwick CJ stated that the court has an inherent jurisdiction to summarily dismiss a proceeding on satisfaction of the ‘no claim or defence’ test, and that the jurisdiction may also be found in the rules of court.129 Barwick CJ explained the test as follows: …the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action — if that be the ground on which the court is invited, as in this case,to exercise its powers of summary dismissal — is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings)‘to stand would involve useless expense’.130

126 C Colbran, P Spender, R Douglas and S Jackson, Civil Procedure: Commentary and Materials, 6th ed, LexisNexis Butterworths, Sydney, 2015, p 599. 127 Spencer v Commonwealth (2010) 241 CLR 118 at 140

[55] per Hayne, Crennan, Kiefel and Bell JJ.

128 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69

.

129 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; ; [1964] HCA 69 Barwick CJ. 130 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; [1964] HCA 69 CJ.

per

per Barwick

Page 30 of 39 Chapter 9 Disposal Without Trial

9.80 Bramwell LJ explained in the early case of Crump v Cavendish131 that, upon a plaintiff ’s application for summary judgment, a defendant is ‘bound to shew’ that it has ‘some reasonable ground of defence to the action’.132 Sir George Jessel MR

Page 340 explained the threshold for summary judgment to be where there is ‘no fairly arguable point’.133 The High Court has stressed on many occasions that the power to order summary judgment must be exercised with exceptional caution.134 This is especially so in a case where the ultimate outcome depends on the resolution of a dispute of fact.135 Despite this formulation of the test for summary judgment, it is not found in the rules in every jurisdiction in Australia.

131 Crump v Cavendish (1880) 5 Ex D 211

.

132 Crump v Cavendish (1880) 5 Ex D 211

at 214

per Bramwell LJ.

133 Anglo-Italian Bank v Wells (1878) 38 LT 197 at 201 (1972) 126 CLR 507 at 513–14; [1972] HCA 41

per Jessel MR. See also Theseus Exploration NL v Foyster

per Barwick CJ.

134 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 Railways (1964) 112 CLR 125 at 129; [1964] HCA 69 154 CLR 87 at 99

; General Steel Industries Inc v Commissioner for

per Barwick CJ; Fancourt v Mercantile Credits Ltd (1983)

; Webster v Lampard (1993) 177 CLR 598 at [602][603]

JJ; Spencer v Commonwealth (2010) 241 CLR 118 at 140 135 Little v Commonwealth (1947) 75 CLR 94 177 CLR 598; [1993] HCA 57

per Mason CJ, Deane and Dawson

[24] per Hayne, Crennan, Kiefel and Bell JJ.

; Trobridge v Hardy (1955) 94 CLR 147

; Webster v Lampard (1993)

.

9.81 Despite not being a trial court, the High Court Rules 2004 (Cth) contain a number of rules to assist the court to deal with cases where pleadings lack any sound basis. Rule 27.09.4 provides that where a proceeding generally, or any claim in a proceeding, does not disclose a cause of action, the court or a justice may give summary judgment. Rule 27.09.5 provides that, rather than give summary judgment, the court is able to strike out the pleading or part of it, or allow the pleading to be amended. Rule 27.09.6 provides that, on application by a defendant who has filed an appearance, the court or a justice is able to give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.

9.82 In New South Wales, where a plaintiff seeks summary judgment against a defendant, r 13.1 of the Uniform Civil Procedure Rules 2005(NSW) provides that there must be evidence (typically in affidavit form) of the facts on which the claim or part of the claim is based as well as evidence ‘given by the plaintiff or by some responsible person’, that the ‘defendant has no defence to the claim or part of the claim’. Rule 13.2 specifically provides that the court can give summary judgment on liability and make an order for costs to be assessed. In New South Wales v Williams,136 Macfarlan JA explained:

Page 31 of 39 Chapter 9 Disposal Without Trial

Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process.137

136 New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177

.

137 New South Wales v Williams (2014) 242 A Crim R 22 at 39–40; [2014] NSWCA 177 at [71] also Commonwealth v Griffiths (2007) 70 NSWLR 268 at [11]–[12] Commission [2007] NSWCA 311

per Macfarlan JA. See

per Beazley JA; Ollis v New South Wales Crime

; Aldous v New South Wales [2014] NSWCA 280

.

9.83 Order 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides that where a statement of claim has been served on a defendant and the defendant has entered an appearance, the plaintiff may apply for summary judgment ‘on the ground that the defendant has no defence to a claim included in the writ’ or part of such a claim. However, as Buss JA explained in Apache Energy Ltd v Alcoa of Australia

Page 341 Ltd (No 2),138 an application for summary dismissal should not be treated as though it is a preliminary trial of a question of law.139 The application is able to be made in every action commenced by writ other than in a probate or admiralty action.140 In Western Australia, an application for summary judgment must be accompanied by a supporting affidavit, which provides evidence to support the claim and deposes to the fact that there is no defence.141 Within 21 days after a defendant has appeared in proceedings (or at a later time by leave of court), a defendant is able to apply for summary judgment against the plaintiff if it is able to demonstrate to the court (by affidavit) that the defendant has a good defence on the merits or that the action should be disposed of summarily.142 In such cases, the court may order that judgment be entered for the defendant with or without costs, that the matter proceed to trial, or, if the parties consent, the matter be finally disposed of.143

138 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) (2013) 45 WAR 379; ; [2013] WASCA 213

.

139 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) (2013) 45 WAR 379; [2013] WASCA 213 at 399 per Buss JA. Other cases dealing with summary judgment not being a mini trial include Lonrho plc v Fayed [1992] 1 AC 448 at 469–70 per Lord Bridge of Harwich; and HongKong Bank of Australia Ltd v BPTC Ltd (in liq) [1995] Aust Torts Reports 81-358 at 62,634 per Batt J. 140 Rules of the Supreme Court 1971 (WA) O 14 r 2. 141 Rules of the Supreme Court 1971 (WA) O 14 r 3. 142 Rules of the Supreme Court 1971 (WA) O 16 r 1. 143 Rules of the Supreme Court 1971 (WA) O 16 r 1.

9.84

Page 32 of 39 Chapter 9 Disposal Without Trial The Tasmanian formulation is similar. Rule 356(1) of the Supreme Court Rules 2000 (Tas) provides that, where a statement of claim has been served on a defendant and the defendant has appeared in the action, the plaintiff may apply for summary judgment on the ground that the defendant ‘does not have a defence’ to a claim included in the writ or part of such a claim. Rule 356(2) provides that summary judgment may be obtained in any action save for an action which includes a claim for defamation, malicious prosecution, or false imprisonment; or is otherwise based on an allegation of fraud. Rules 356(1)(b) and 357(1)(b)(ii) provide for the procedure where there is no defence as to liability but the quantum of damages remains in issue. Rule 357(1) details the content of the supporting affidavit, which must include facts verifying the claim and a deposition that there is no defence to that claim. Where the defendant seeks summary judgment against the plaintiff, r 367(1)provides that an application must be made within 10 days of the defendant appearing which satisfies the court that the defendant has a good defence on the merits or that the action should be otherwise disposed of summarily.

9.85 In the Australian Capital Territory, r 1146(1) of the Court Procedures Rules 2006 (ACT) provides that the plaintiff is able to apply for summary judgment at any time after the defendant has filed a notice of intention to respond or a defence.144 Pursuant to r 1146(2), summary judgment will be granted unless the defendant has a good defence to the claim on the merits; or that sufficient facts are disclosed to entitle the defendant to defend the claim for relief generally. Rule 1146(3) provides that summary judgment may be given on liability with damages to be assessed. Rule 1147 contains the procedure for the defendant to seek summary judgment against the

Page 342 plaintiff. The defendant may apply for summary judgment at any time after filing a notice of intention to respond. Summary judgment is liable to be entered if the court is satisfied that there is a good defence to the claim (or part thereof), or that the proceedings should be disposed of summarily.

144 Golovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132

.

9.86 Similarly, r 22.02 of the Supreme Court Rules (NT) in the Northern Territory provides that if the defendant has filed an appearance, the plaintiff can at any time apply for judgment against the defendant on the ground that the defendant has no defence to the whole or part of a claim, or no defence save as to quantum.145 Similar to the rules in Western Australia, an application for summary judgment cannot be made in a claim for defamation, malicious prosecution, false imprisonment, seduction, or in a claim containing an allegation of fraud. Rule 23.03 provides the summary judgment procedure for the defendant against the plaintiff. After the defendant has filed an appearance, it may seek summary judgment if it has a good defence on the merits.

145 Australian & New Zealand Banking Group v David (1991) 1 NTLR 93; 105 FLR 403

No real prospect of success

9.87

.

Page 33 of 39 Chapter 9 Disposal Without Trial In some jurisdictions, a plaintiff for summary judgment must establish that the defendant has no real prospect of succeeding. It is not for the defendant to show a real prospect of success. A defendant will be called upon to show its hand only if the plaintiff has established that there are grounds for concluding that the defendant has no real prospect of success. The rules in Victoria and Queensland each adopt a version of the real prospect of success test. Although these jurisdictions appear to be unique in this way, their rules are actually an adaptation of r 24.2 of the Civil Procedure Rules 1998 (UK). For this reason, the development of English law on r 24.2 is informative to these jurisdictions.

9.88 Section 61 of the Civil Procedure Act 2010 (Vic) provides that a plaintiff may apply for summary judgment on the grounds that the defendant’s defence has ‘no real prospects of success’. A similar rule in relation to a defendant seeking summary judgment against a plaintiff is found in s 62. Section 63 explains that summary judgment may be entered on the application of both plaintiffs and defendants, or the court may enter summary judgment on its ‘own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding’. Section 64 provides that,even where a claim or defence has no real prospects of success, the court may nevertheless allow the matter to proceed if it is in the interests of justice or if the dispute is of such a nature that only a full hearing on the merits is appropriate. Order 22 rr 22.03 and 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provide further the court’s procedure to enter summary judgment.

9.89 In Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd,146 the Victorian Court of Appeal considered an appeal from a judge who had summarily dismissed a claim on the basis that it failed to disclose conduct alleged to constitute a breach of confidence by the defendant. The appeal was allowed on the grounds that the judge

Page 343 applied too narrow a test of ‘real prospects of success’ by concluding that deficiencies in the pleading led to the conclusion that the claim would fail. In overturning that decision, Redlich JA and Judd AJA explained: … notwithstanding very apparent inadequacies in the form of the pleading, it was not appropriate to finally dismiss the applicant’s claim on this basis. … It cannot be said that the applicant’s case in that regard was absolutely hopeless or so clearly untenable that it could not possibly succeed. While we have decided that the applicant should not be denied the opportunity to have its formulation of confidential information determined at trial, we should not be taken as endorsing the form of the present pleading. We have identified a number of obvious defects, but the absence of sufficient detail in relation to what the applicant would contend is confidential information is not one of them.147

146 Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd (2011) 35 VR 98; [2011] VSCA 444

.

147 Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd (2011) 35 VR 98; [2011] VSCA 444 at 105 [21] per Redlich JA and Judd AJA. See also Lysacht Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158

9.90

; De Saram v Brown [2015] VSCA 142

.

Page 34 of 39 Chapter 9 Disposal Without Trial Rule 292(1) of the Uniform Civil Procedure Rules 1999 (Qld) provides that the plaintiff is able to apply for summary judgment at any time after the defendant files a notice of intention to defend. Summary judgment is liable to be entered where the court is satisfied that the defendant has ‘no real prospect of successfully defending all or part of the plaintiff ’s claim’ and there is no need for a trial of the claim.148 In granting the application, the court is able to give judgment and ‘any other order the court considers appropriate’. Rule 293 contains the procedure whereby a defendant seeks summary judgment against the plaintiff. The defendant must satisfy the court that the plaintiff has no real prospect of succeeding on all or part of its claim, and there is no need for there to be a trial of the claim on the merits. Rule 295 specifies the supporting evidence which must accompany the application for summary judgment, and r 299 provides that costs may be ordered against a party who applied for summary judgment who ought to reasonably have been aware that an opposite party would rely on a point to have the application dismissed.

148 See Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd (2009) 2 Qd R 202; [2009] QCA 135 ; ColdhamFussell v Federal Commissioner of Taxation (2011) 82 ATR 872; ; [2011]QCA 45. It is noteworthy that the formulation of the test in r 292(2) of the Uniform Civil Procedure Rules 1999 (Qld) is based on yet slightly different to r 24.2 of the Civil Procedure Rules 1998 (UK).

No reasonable prospects of success or no reasonable basis for claim or defence

9.91 Section 31A(1) of the Federal Court of Australia Act 1976 (Cth) provides that the court may give judgment for one party against another to the whole or any part of a proceeding if the first party is prosecuting the proceeding or part of the proceeding, and the court is satisfied that the other party has ‘no reasonable prospects of successfully defending’ the proceeding or part thereof. A defendant may similarly seek summary judgment against a plaintiff pursuant to s 31A(2), which provides that summary judgment may be entered if the defendant satisfies the court that the other party has no reasonable prospect of successfully prosecuting the proceeding or part thereof. Section 31A(3) explains that no ‘reasonable prospect of success’ does not

Page 344 need to mean that a claim or defence is hopeless or bound to fail. Rule 26.01 of the Federal Court Rules 2011 (Cth) mirrors the Act, in that it provides for a summary judgment procedure where the other party has no reasonable prospects of success.

9.92 The High Court considered the operation and scope of s 31A(1) of the Federal Court of Australia Act 1976 (Cth) in Spencer v Commonwealth and noted that it provides a test which is not as strict and narrow as the traditional ‘no claim or defence’ test. French CJ and Gummow J said: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.149

Page 35 of 39 Chapter 9 Disposal Without Trial Hayne, Crennan, Kiefel and Bell JJ also said: The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to ‘no reasonable prospect’ can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase ‘just and equitable’ when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.150

149 Spencer v Commonwealth (2010) 241 CLR 118 at [25]–[26]

per French CJ and Gummow J.

150 Spencer v Commonwealth (2010) 241 CLR 118 at [58]–[60]

per Hayne, Crennan, Kiefel and Bell JJ.

9.93 In Wang v Anying Group Pty Ltd,151 Foster J outlined a series of principles extracted from the authorities that apply with respect to the ‘no reasonable prospect’ test: The following principles may be extracted from the authorities: (a)

The moving party does not have to demonstrate that the defence is hopeless or unarguable;

(b)

The Court must consider the pleadings and the evidence with a ‘critical eye’ in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [23]

(p 382) (per Finkelstein J));

Page 345   (c)

The respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) (Jefferson Ford Pty Ltd 167 FCR 372 at [22] (p 382) (per Finkelstein J)); and

(d)

The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. This seems to be the approach of Finkelstein J in Jefferson Ford Pty Ltd 167 FCR 372 and of Gordon J in the same case (as to which see [123]–[134] (pp 406–409)), although Rares J in that case at [73]– [74] (p 394) and in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 esp at [45] (p 731) favoured a test which is much closer to the older test articulated in authorities decided under Rules of Court expressed in terms different from the language of s 31A(1)).152

Page 36 of 39 Chapter 9 Disposal Without Trial 151 Wang v Anying Group Pty Ltd [2009] FCA 1500

.

152 Wang v Anying Group Pty Ltd [2009] FCA 1500 at [43]

per Foster J. See also the useful summary of principles

enunciated by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5],[6] cited.

, and the cases there

9.94 In South Australia, the Supreme Court Civil Rules 2006 (SA) provide that any party to a proceeding may apply for summary judgment. No time limit is provided. Rule 232(2) requires the court to be satisfied that there is ‘no reasonable basis’ for defending the plaintiff’s claim. Where the applicant is the defendant, the court must be satisfied that there is ‘no reasonable basis’ for the claim against the defendant. Rule 233 enables the court to grant summary judgment in relation to part of a claim, leaving the remainder to be determined in the ordinary trial process.

9.95 The South Australian test is somewhat unique in both its formulation and the principles that inform it. Prior to r 232, the rule for summary judgment in South Australia was r 24.04, which adopted the traditional ‘no claim or defence’ test, which was explained by the High Court in General Steel and is outlined above at 9.88. It is clear that the test in r 232 is broader than the ‘no claim or defence’ test.153 This was explained by Debelle J in Ceneavenue Pty Ltd v Martin:154 A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore,no longer applicable.

As to the scope and nature of the ‘no reasonable basis’ test, Debelle J explained in Ceneavenue: The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. … The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial

Page 346   on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.155

Page 37 of 39 Chapter 9 Disposal Without Trial 153 JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61]

per Bleby J.

154 Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; ; [2008] SASC 158

.

155 Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; [2008] SASC 158 at [79]–[82]

per Debelle J.

9.96 While the South Australian test appears to be similar to the Federal Court test, there is a significant distinction. In Proude v Visic (No 4),156 Blue J explained: …the Federal Court provision refers to ‘no reasonable prospect of successfully prosecuting the proceeding’, whereas this Court’s rule refers to ‘no reasonable basis’ for the claim. The inquiry in the Federal Court is directed to the future and to an assessment of the prospect of success, whereas the provision in this Court is directed to the present and to the basis for the plaintiff ’s claim. While there is no equivalent in this Court’s Rules to s 31A(3), the Full Court decided in Ceneavenue that it was not a pre-condition for obtaining summary judgment that a proceeding be demonstrated to be hopeless or bound to fail.157

156 Proude v Visic (No 4) (2013) 117 SASR 560; [2013] SASC 154

. See also Tschirn v Australian Executor Trustees

Ltd [2015] SASC 58 , where Parker J applied Spencer v Commonwealth (2010) 241 CLR 118 at [25] the High Court’s endorsement of Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

including at 260

[94]–[95]. 157 Proude v Visic (No 4) (2013) 117 SASR 560 at 565; [2013] SASC 154 at [16]

per Blue J.

The position in England and Wales

9.97 As explained above, the Victorian and Queensland tests for summary judgment find their genesis in r 24.2 of the Civil Procedure Rules 1998 (UK). Prior to CPR 24.2, the test for summary judgment in England was the traditional ‘no defence’ test outlined above. A statement of that test by the Court of Appeal was that there must be ‘no reasonable doubt that a plaintiff is entitled to judgment’.158 Lord Denning MR explained that it was not enough for the court to merely conclude that the defendant was unlikely to succeed in its defence. Rather, it must have been beyond reasonable doubt that the defence would fail such that leave to defend was required in cases where the defence was very weak or ‘shadowy’.159

158 Home and Overseas Insurance Co v Mentor Insurance Co (UK) Ltd (in liq) [1989] 3 All ER 74; [1990] 1 WLR 153 . 159 Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607

; [1968] 3 All ER 824

.

Page 38 of 39 Chapter 9 Disposal Without Trial

9.98 In the Final Report on Access to Justice, Lord Woolf found the ‘no defence’ test unsatisfactory because it allowed unmeritorious pleadings to be tried when they should have been disposed of summarily at the outset.160 The test of ‘no real prospects of success’ must therefore be understood in the context of the Final Report’s policy to

Page 347 promote a proportionate use of resources. The purpose of the test is to avoid the use of the normal pre-trial and trial procedures for resolving disputes which do not require the test of the full procedural course. It follows that summary judgment ought to be given where the normal processes are not likely to make a difference to the outcome because of the futility of a pleaded position.161 A key factor, then, must be whether the full litigation process is likely to reveal something that would make a difference to an otherwise doomed pleading.

160 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Ch 12, [31]; Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), 1995, Ch 6, [17]–[21]. 161 Royal Brompton Hospital National Health Service Trust v Hammond [2001] EWCA Civ 550; [2001] All ER 130.

9.99 Whether a party has a real prospect of success depends on an assessment of two distinct matters: first, whether the party has a real prospect of success on the basis of the facts that are known at the time and, secondly, whether there is a real prospect that some additional support for the party’s case would emerge if the case followed the normal procedural route.162 It is only when the court is convinced that the party has no real prospects in each of the two matters that the use of the normal court process would be disproportionate.

162 ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 at [12]–[14] per Moore-Bick LJ.

9.100 Support for this interpretation of the test is found in S v Gloucestershire County Council,163 where the Court of Appeal explained that before giving summary judgment the court must be satisfied of the following matters: 1. that it had before it all substantial relevant facts that were reasonably capable of being before it; 2. that those facts were undisputed or there was no real prospect of successfully disputing them; and 3. that there was no real prospect of oral evidence affecting the court’s assessment of the facts. The Court of Appeal emphasised that even where there were gaps in the evidence, a court could proceed to summary judgment if there was no real prospect that the gaps would be filled.

Page 39 of 39 Chapter 9 Disposal Without Trial 163 S v Gloucestershire County Council [2001] Fam 313 ; [2000] 3 All ER 346 . See also the comments of Buckley J in Gordon v JB Wheatley & Co (13 January 2000, unreported); Royal Brompton Hospital National Health Service Trust v Hammond [2001] EWCA Civ 550; [2001] All ER 130.

9.101 It follows that the test is not merely a matter of the probability of the defendant’s success as it requires an assessment of the need for further investigation and the possibility that such investigation will add to what is already known.If the legal issues are simple and have a straightforward answer, a trial process would be redundant. For example, a case that gives rise to a point of law should be decided by summary judgment if it does not depend upon the resolution of questions of fact and if its postponement to trial would waste time and add to the expense of the proceedings.164 Where, however, issues involve difficult points of law and there was

Page 348 much to be considered in light of the relevant authorities, the full process should be employed.165

164 ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 at [12]–[14] per Moore-Bick LJ. 165 MT Realisations Ltd v Digital Equipment Co Ltd [2002] EWHC 1628 (Ch); Barrett v Universal-Island Records Ltd [2003] EWHC 625(Ch); Hammonds (A Firm) v Danilunas [2009] EWHC 216 (Ch).

9.102 There would be cases where, although the defendant’s case appears weak, the facts could be so complex that the prospects of success cannot be assessed without further investigation. Such cases must go to trial. It is submitted that the law of England and Wales ought to be followed in Victoria and Queensland with respect to the interpretation of the ‘no real prospects of success’ test, as the English approach to that test is consistent with the overriding objective.

End of Document

Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 10 — Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Page 349 [Current to May 2018]

Range of interim remedies

10.1 Interim remedies are measures ordered by the court, generally before the final determination of the issues in dispute. These remedies are governed largely by the relevant rules of court.1 Rule 25.2 of the Uniform Civil Procedure Rules 2005 (NSW), for example, outlines the interim orders that can be made in urgent cases before the commencement of proceedings, as though proceedings were already on foot: 25.2 Order in urgent cases before the commencement of proceedings (1)

In an urgent case, the court, on the application of a person who intends to commence proceedings, may do any of the following: a. it may make any order which the court might make in proceedings on an application for a writ of habeus corpus ad subjiciendum, b. it may make any order for the custody of a minor, c. it may grant any injunctive relief, including relief in the nature of a freezing order under Division 2 (Mareva relief) or a search order under Division 3 (an Anton Piller order), d. it may make an order extending the operation of a caveat under: i.

the Real Property Act 1900, or

Page 350  

ii.

the Offshore Minerals Act 1999, or

iii.

the Offshore Minerals Act 1994 of the Commonwealth,

e. it may appoint a receiver;

Page 2 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments f.

it may make an order for the detention, custody, or preservation of property under rule 25.3,

to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings. …

1

See High Court Rules 2004 (Cth) r 8.07; Federal Court Rules 2011 (Cth) Pts 7 and 14; Court Procedures Rules 2006 (ACT) rr 715–719; Uniform Civil Procedure Rules 2005 (NSW) Pt 25; Supreme Court Rules (NT) Os 37–39; Uniform Civil Procedure Rules 1999 (Qld) Ch 8; Supreme Court Civil Rules 2006 (SA) Ch 11 (Pts 12–15); Supreme Court Rules 2000 (Tas) Pts 16–18; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 4.08 and 37–38; Rules of the Supreme Court 1971 (WA) Os 51–52B.

10.2 Part 25 of the Uniform Civil Procedure Rules 2005 (NSW) also sets out interim preservation orders that can be made at any stage of proceedings: 25.3 Preservation of property (1)

In proceedings concerning property, or in which any question may arise as to property, the court may make orders for the detention, custody, or preservation of the property.

… 25.4 Disposal of personal property If, in proceedings concerning property (other than land), or in which any question may arise as to property (other than land), it appears to the court that: a.

the property is of a perishable nature or is likely to deteriorate, or

b.

for any other reason it is desirable that the property should be sold or otherwise disposed of,

the court may make an order for the sale or other disposal of the whole or any part of the property by such person, and in such manner, as the court may direct. 25.5 Interim distribution If, in proceedings concerning property, it appears to the court that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceedings, the court may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property. 25.6 Interim income If, in proceedings concerning property, it appears to the court that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceedings, the court may allow that income or part to be paid, during such period as the court may determine,to all or any of the persons having an interest in the income. 25.7 Payment before ascertainment of all persons interested If two or more persons are entitled to share in a fund, the court may order or allow immediate payment to any of those

Page 3 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments persons of his or her share without reserving any part of that share to meet the subsequent costs of ascertaining any other of those persons. 25.11 Freezing Order (1)

The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court’s

Page 351   process by seeking to meet a danger that a judgment of prospective judgment of the court will be wholly or partly unsatisfied. … 25.19 Search Order The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding. …

10.3 There are, broadly speaking, two different types of interim orders. The first type is designed to protect substantive rights (usually the rights in issue) during the proceedings, or to otherwise deal with them in some way; for example, an order for interim injunctive relief. The second type is designed to facilitate access to information or regulate the litigation process in some way; for example, a search order. We may refer to orders designed to protect rights pending resolution of the dispute as protective orders, and orders facilitating the fair process of resolving the dispute as process orders.

10.4 There is a profound difference between protective orders and process orders. The former involve pre-judgment interference with substantive rights, albeit on a temporary basis. By contrast, the latter are more in the nature of case management orders. They regulate the process for determining the dispute, rather than addressing the rights in issue. As far as protective orders are concerned, the court must take care to ensure that its interim decision does not harm the very rights that it may itself endorse after trial. Although orders for pre-trial disclosure or inspection may ultimately assist one of the parties to establish its rights at trial, in the meantime, the operation of the order has no effect on the disputed rights or their exercise.Although some rules describe these orders as ‘interim’, they are not temporary in nature. An order requiring inspection or the provision of certain documents or things requires a once-off act of compliance, leaving no further decision to be made on the point in final judgment.

10.5

Page 4 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments This chapter is only concerned with protective orders. It considers interim injunctions, which are intended to safeguard a party’s substantive rights pending final adjudication at trial. In addition, this chapter addresses three other measures, which are closely related to interim injunctions: freezing orders, security for costs orders, and interim payment orders. Like interim injunctions, these measures also seek to protect the rights of litigants pending trial, without pre-empting the final decision.

Nature and justification of interim injunctive relief

10.6 An interim injunction (or an ‘interlocutory injunction’) is an order made for a specified length of time, usually until the final determination of the proceedings or until further order. An interim injunction may be granted at the request of a litigant

Page 352 (whether plaintiff or defendant2) to protect that party’s rights until the court can finally adjudicate the dispute. It is a discretionary remedy. Although an interim injunction may affect the rights in dispute between the parties, it is not intended to provide a final resolution of the issues.

2

An application for an interim injunction is usually (but not always) brought by the plaintiff in the underlying proceedings. The balance of this section on interim injunctions generally uses the language of ‘applicant’ and ‘respondent’to reflect the possibility that the moving party is a party other than the plaintiff.

10.7 The interim injunction is arguably the most flexible and far-reaching interim remedy. Without a hearing on the merits, and at times even in the absence of the person affected, the court may restrain or command almost any conduct, regardless of whether such order would be available in final judgment. In his seminal work on the topic, American Professor John Leubsdorf said that the interim injunction: … may be the most striking remedy wielded by contemporary courts. Issued without a full hearing on the merits of the case, a preliminary injunction can block the enforcement of legislation, place a candidate on the ballot, forbid strikes,prevent mergers, or enforce a school desegregation plan. The relief thus granted may endure for months or years.3

3

J Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harvard Law Review 525 at 525 (footnotes omitted).

10.8 A grant of interim injunctive relief is informed by three fundamental considerations. First, interim injunctions are available only for protecting recognisable rights, in respect of which the applicant usually seeks some substantive relief.Subject to limited exceptions,4 there is generally no possibility of an interim injunction if there is no likelihood of harm to some legal or equitable right belonging to the applicant and enforceable by a final judgment.5 We may refer to this principle as the underlying right principle: where there is no underlying right, there is nothing to protect. In this way, ‘the power of the Court to grant an injunction is limited by the nature of the act of which it is sought to

Page 5 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments restrain’.6 Thus an interlocutory injunction was denied in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd ,7 because the plaintiff’s case was based on a ‘right to privacy’, and there was no such cause of action known to Australian law. Secondly, the function of the jurisdiction is not to decide issues in dispute between the parties,but only to protect rights from irreparable harm pending litigation. We may refer to this principle as the provisionality principle: an interim order is provisional in that it subsists only during pending litigation.Thus an interim injunction would be set aside if the action was stayed, or would lapse if the action was discontinued. Thirdly, if the court finds in final judgment that a respondent restrained by an interim injunction had been prevented wrongly from exercising its rights, the court may seek to restore the respondent to the position it would have been in had it not been subjected to a

Page 353 restraint. We may refer to this principle as the restorative principle. The ability of the court to order restorative compensation in these circumstances is made possible by the applicant having given an undertaking as to damages. Undertakings as to damages are considered in more detail in 10.63–10.79 below.

4

See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001]HCA 63 at [285] per Callinan J.

5

Siskina (Owners of cargo lately laden on board) v Bertola SA [1979] AC 210

; [1977] 3 All ER 803

; Australian

Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [10],[15] Gleeson CJ, [58] per Gaudron J, [88]–[91] per Gummow and Hayne JJ. 6

W Ashburner, The Principles of Equity, 2nd ed, Butterworths, London, 1933, p 335 as cited in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [31]

7

per

(2001) 208 CLR 199; [2001] HCA 63

(plurality).

.

10.9 The jurisdiction to grant interim injunctive relief originated in equity, which has a well-established jurisdiction to grant interim injunctions to restrain legal wrongs. However, there are also statutory jurisdictions. By way of general statutory power, s 66(4) of the Supreme Court Act 1970 (NSW), for example, provides:8 66 Injunction … (4)

The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.

There are also specific statutory powers that provide for the grant of relief in the nature of an interlocutory injunction.9 Many of these statutory provisions create a remedy where none would have been available in equity.10

8

See also Federal Court of Australia Act 1976 (Cth) s 23; Federal Circuit Court of Australia Act 1999 (Cth) s 15; Court Procedures Act 2004 (ACT) s 62; Supreme Court Act (NT) s 69; Civil Proceedings Act 2011 (Qld) s 9; Supreme Court Act 1935 (SA) s 29; Supreme Court Civil Procedure Act 1932 (Tas) s 11(12); Supreme Court Act 1986 (Vic) s 37; Supreme Court Act 1935 (WA) s 25(9).

9

Examples include Competition and Consumer Act 2010 (Cth) s 80(2); Corporations Act 2001 (Cth) s 1324(4); Family Law Act 1975 (Cth) s 114; Patents Act 1900 (Cth) ss 122 and 128.

10 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [28]

(plurality).

Page 6 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.10 The power under s 66 of the Supreme Court Act, and its equivalents in other jurisdictions, is as wide in its reach as it is extensive in its consequences. The exercise of this power enables the court to attempt to ensure the effective exercise of its jurisdiction at any final hearing, and avoid the frustration of its process.11 The breadth of the general jurisdiction is dictated by the intractable nature of the problem to which the court must provide a solution by means of an interim measure: the tension between due process on the one hand, and the need to protect rights pending litigation on the other. Due process dictates that the court should not interfere with a person’s rights or freedoms unless the applicant has proven its legal entitlement to the restraint it seeks. But due process takes time. During this time, the applicant’s rights may be harmed to the point of extinction, so that when the court comes to deliver its final judgment, little or nothing is left to protect. But there is also a risk attendant on restraining the respondent pending trial. If the court restrains the respondent, it runs the risk of harming the respondent’s rights, should the respondent establish at trial that the applicant had no right to interfere. It follows that any course taken by the court runs the risk of harming the rights of one of the parties.12

Page 354

11 See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [35]

per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ.

12 This risk was referred to in Cayne v Global Natural Resources plc [1984] 1 All ER 225

as ‘the balance of the risk of

doing an injustice’. See also Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 J.

per McClelland

10.11 Given that both pre-trial interference and forbearance can result in harm to rights, the court should follow a course most likely to protect rather than harm rights.13 This gives the court the greatest chance of achieving a just result when it is time for a final determination on the merits.14 Achieving this objective will depend on many factors. The breadth of the court’s jurisdiction is intended to give it the flexibility needed to achieve a just solution in a broad range of circumstances.15 The court is not constrained by hard and fast rules, and so it is able to respond to the infinite variety of circumstances in which the pre-judgment relief may be required.16 It does not follow, however, that this wide discretion is at large. Courts have developed principles to deal with the dilemma created by a request for the protection of rights pending litigation.

13 ‘This court when called upon to grant an interlocutory injunction will act according to the justice of the case as ascertained upon the evidence before it and according to the comparative injury which may arise from granting or withholding the injunction’: Munro v The Wivenhoe and Brightlingsea Railway Co (1865) 46 ER 1100 at 1104; 4 De GJ & Sm 723 at 733 per Turner LJ. 14 Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405 at [16] per Lord Hoffmann (delivering the opinion of the Privy Council); Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd [2011] QCA 334 at [52]

per Fraser JA (White JA and Margaret Wilson AJA agreeing).

15 ‘The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made subject to strict rules’: Hubbard v Vosper [1972] 2 QB 84

at 96

; [1972] 1 All ER 1023 at 1029

per Lord

Page 7 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Denning MR; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [18] Gleeson CJ and Crennan J.

per

16 An interlocutory injunction ‘depends upon a great variety of circumstances, and it is utterly impossible to lay down any general rule upon the subject, by which the discretion of the court ought in all cases to be regulated’: Saunders v Smith (1838) 3 My & Cr 711 at 728; 40 ER 1100 at 1107 per Lord Cottenham.

Principles governing the grant of interim injunctions Preservation of the status quo

10.12 One of the earliest principles in this area was that the purpose of an interim injunction was merely to preserve the status quo pending a final decision.17 In Preston v Luck ,18 Cotton LJ said that the object of an interim injunction ‘is to keep things in status quo, so that if at the hearing the plaintiffs obtain a judgment in their favour, the defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual’.19 This view has an undeniable attraction because it makes the dilemma of pre-judgment interference outlined above disappear altogether: if the court can maintain matters in a stable and unchanged

Page 355 position, no harm to either party can occur and no hard decisions need be made before final judgment.

17 See Sir Frederick Jordan, Chapters on Equity in New South Wales, 6th ed, 1947, p 146. See too Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [9]–[10] , where Gleeson CJ noted that this was ‘not a complete description of the circumstances in which an interlocutory injunction may be granted’. 18 (1884) 27 Ch D 497

.

19 See also Heavener v Loomes (1924) 34 CLR 306 at 326; [1924] HCA 10

per Isaacs and Rich JJ; Australian

Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [62] Gaudron J.

, fn 155 per

10.13 Unfortunately, this principle is flawed because the interim injunction jurisdiction is not directly concerned with the preservation of physical states of affairs, but legal states of affairs. Suppose that A and B each claim to have an exclusive right to exploit a patent and start marketing a product. A applies to restrain B from doing so. If B is restrained, but it is determined in final judgment that B had the exclusive right, B’s right will have been infringed. If B is not restrained,and it is determined in final judgment that A had an exclusive right to market the product, A’s right will have been infringed. Where two parties are in dispute about the existence of a right (or rights), an interim injunction runs the risk of infringing rights as well as preserving them. That is, an interim injunction might disturb the status quo, or maintain it.

10.14

Page 8 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments The circumstances of Preston v Luck 20 illustrate this point. P entered into a contract with L for the purchase of some of L’s patents. A dispute arose as to whether certain patents were included in the contract, and P applied for an interlocutory injunction to restrain L from otherwise parting with those patents pending proceedings. Under the state of affairs then existing, L was the owner of the disputed patents and P sought to preserve that state until the court could decide whether L should hand them over to P.To that extent, as Cotton LJ said, the object of P’s application was ‘to keep things in status quo’. However, since the right of alienation is part of ownership, preventing L from exercising that right would necessarily interfere with the status quo, assuming L was the true owner. Without reference to rights, there is no basis for deciding to preserve one state of affairs rather than another.

20 (1884) 27 Ch D 497

.

10.15 To take another example, suppose that an employer claims the benefit of a clause in restraint of trade, which bars a former employee from working for a competing enterprise for one year after the termination of his or her employment. The employee resigns and immediately takes up a job with a competitor. The employer then seeks an interim injunction. If the status quo principle were concerned with maintaining existing states of affairs independently of rights, the employer would be bound to lose,since it would be arguing for a change in the state of affairs by seeking to stop the former employee from continuing in his or her present employment. Similarly, we would also be committed to saying that, if the former employee has not yet started working for the competition, his or her present non-employment would be the existing state of affairs that must be preserved.

10.16 Clearly, a principle which says that a state of affairs should be preserved simply because it happens to exist is arbitrary, and its operation is a matter of pure chance. As Gillard J explained in Walsh v The Police Association ,21 with reference to what Lord Diplock said in Garden Cottage Foods Ltd v Milk Marketing Board ,22 ‘it would be unjust to the plaintiff if a defendant could by an unlawful act obtain an advantage

Page 356 which could not be reversed because it was the state of the circumstances immediately before the institution of the proceeding’.23

21 (2000) 140 IR 58; [2000] VSC 292 at [58] 22 (1984) AC 130

at 140

.

.

23 Similarly, in Thompson v Park [1944] KB 408 at 410 , Goddard LJ said: ‘It is a strange argument to address to a court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting an injunction.’

10.17 It is therefore not surprising that the court has never taken the status quo principle at face value and applied it mechanically. Instead, it has sought to single out for protection the most appropriate state of affairs, whether or not

Page 9 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments it qualifies as a presently existing state. The status quo in any given case is a time selected by the court, based on the facts of each case and a commonsense exercise of discretion.24 Put another way, determination of the ‘status quo’ is ‘essentially a factual question that requires consideration of what has happened and what it is that the plaintiffs seek to achieve by their application for interlocutory relief’.25 Megaw LJ provided more specificity in Alfred Dunhill Ltd v Sunoptic SA :26 … the answer may be different, according as you look at the existing state of things at the date when the defendant did the act, or the first act, which is alleged to have been wrongful; or the date when the plaintiff first learned of that act; or the date at which the plaintiff ought first to have been aware of that act; or the date when the plaintiff first complained to the defendant; or the date when he issued his writ.

24 Carr Boyd Minerals Ltd v Ashton Mining Ltd (1989) 15 ACLR 599 at 605 v Anghie (2001) 20 ACLC 58; [2001] VSC 362 at [72]

per Malcolm CJ; Liquorland (Aust) Pty Ltd

per Warren J; Talacko v Talacko [2009] VSC 349 at [39]–[42]

per Kyrou J. 25 The Australian Federation of Islamic Councils Inc v Hafez Kassem [2017] NSWSC 206 at [37] 26 [1979] FSR 337 at 376

per McDougall J.

. Similarly, see Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130

per Lord Diplock, as applied in Carr Boyd Minerals Ltd v Ashton Mining Ltd (1989) 15 ACLR 599 at 605 Malcolm CJ.

at 140 per

10.18 Once it is accepted that the choice is not confined to the state of affairs existing at the time of the application, the notion of the status quo ceases to provide a criterion for choice, and a different principle is needed to identify the state of affairs worthy of protection. The status quo has been identified as being, variously, the state of affairs in the period immediately preceding the issue of the writ claiming the permanent injunction (or, if there was unreasonable delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion),27 the position prevailing when the respondent embarked upon the activity sought to be restrained,28 the time ‘before any of the difficulties arose’,29 ‘the date when the evidence of the defendant’s activity reached the plaintiff’,30 and the ‘status quo

Page 357 ante bellum’.31 None of these formulations is superior to the others and, unsurprisingly, none has found general favour.

27 Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130 at 140 ; [1983] 2 All ER 770 at 774–5 per Lord Diplock; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [119]

per Gaudron J.

28 Fellowes & Son v Fisher [1976] 1 QB 122

; John Walker and Sons Ltd v Rothmans International Ltd [1978] FSR 357

. 29 Brown v Amalgamated Union of Engineering Workers [1976] ICR 147 30 Standex International Ltd v C B Blades Ltd [1976] FSR 114 (CA).

.

Page 10 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 31 Metric Resources Corporation v Leasemetrix Ltd [1979] FSR 571 at 581–2 Parkwood Eggs Pty Ltd (1978) 20 ALR 129 at 149

; Victorian Egg Marketing Board v

per Brennan J.

10.19 A status quo test is inappropriate when the applicant seeks a mandatory injunction. Since a mandatory injunction directs the person to whom it is addressed to perform an act or bring about a particular result (such as transfer of ownership),it would be a contradiction in terms to maintain that the order is intended to preserve the status quo. It has therefore been held that the test does not apply in such a situation.32 Yet, the difference between a mandatory injunction and a prohibitory injunction can be no more than a difference of form rather than substance. Lord Hoffmann has described arguments over the classification of an interlocutory injunction as prohibitive or mandatory as ‘barren’, because what matters is the practical consequence of the orders.33 For example, suppose that both the applicant and the respondent assert ownership to the same garage. It makes little difference whether the applicant seeks an order restraining the respondent from parking his or her car in the garage, or an order directing the respondent to remove his or her car from the garage. There is no reason to suppose that the status quo test offers guidance in the former eventuality, but not the latter. The status quo test is also excluded in situations where the interim decision is bound to give the successful party all it seeks in the main action, thereby bringing the substantive litigation to a premature end.34

32 See for instance Woodford v Smith [1970] 1 All ER 1091; [1970] 1 WLR 806 614; [1979] 1 WLR 1294 [1982] QB 1248 1 All ER 901 Barrett J.

; NWL Ltd v Woods [1979] 3 All ER

; Astro Exito Navegacion SA v Southland Enterprise Co Ltd, The Messiniaki Tolmi

; [1982] 3 All ER 335

; cf Locabail International Finance Ltd v Agroexport, The Sea Hawk [1986]

; see too Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2006] NSWSC 481 at [13]

per

33 Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405 Hoffmann (delivering the judgment of the Privy Council).

at [20]–[21]

per Lord

34 Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780–1

per Hoffman J, considered in

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502–3 Gummow J.

per

10.20 Whether the dispute is concerned with material states of affairs, rights in real or personal property, or incorporeal rights, we would do well to drop the pretence that the jurisdiction is concerned to protect the status quo. As Professor Leubsdorf has written:35 Emphasis on preserving the status quo is a habit without a reason. To freeze the existing situation may inflict irreparable injury on a plaintiff deprived of his rights or a defendant denied the right to innovate. The status quo shibboleth cannot be justified as a way to limit interlocutory judicial meddling, because a court interferes just as much when it orders the status quo preserved as when it changes it. The test is not even easy to apply, since it eddies off into conundrums about what status is decisive.

Page 358

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35 J Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harvard Law Review 525 at 546. See also ‘Developments in the Law — Injunctions’ (1965) Harvard Law Review 994 at 1058 (footnotes omitted).

10.21 This view is echoed in Sharpe on Injunctions and Specific Performance, where it is pointed out that although the status quo ‘phrase is frequently used to describe the purpose of an interlocutory injunction... it adds little or nothing to the analysis and, in fact, may produce a possible source of confusion’.36

36 R J Sharpe, Injunctions and Specific Performance, 4th ed, University of Toronto Press, Toronto, 2012, [2.550].

Balance of justice — likelihood of success and magnitude of harm

10.22 As we have seen, applications for interim injunctions may present the court with a genuine dilemma in the sense that both the grant and refusal of the application could result in undue harm to one of the parties. Seeing that there is no escaping this dilemma, the court must adopt the solution most likely to minimise any harmful consequences that may follow from the court’s decision. The court has developed a number of principles to minimise such harm.

10.23 Following Beecham Group Ltd v Bristol Laboratories Pty Ltd (Beecham) 37 and Australian Broadcasting Corporation v O’Neill (ABC v O’Neill) ,38 it is now well established that a court faced with an application for interlocutory injunctive relief must address two inquiries. First, it must consider whether the applicant has established a prima facie case. If not, the applicant can hardly deserve interim relief. Secondly, it must consider whether the inconvenience or injury the applicant would likely suffer if an injunction were refused is outweighed by the inconvenience or injury the respondent would likely suffer if an injunction were granted.39 The second inquiry is known as ‘the balance of convenience’, though a more appropriate description may be ‘the balance of justice’. In Francome v Mirror Group Newspapers Ltd ,40 Sir John Donaldson MR explained the role of the court on an application for an interlocutory injunction as follows: … we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience.

37 (1968) 118 CLR 618; [1968] HCA 1 38 (2006) 227 CLR 57; [2006] HCA 46

. .

39 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–3; [1968] HCA 1

per Kitto, Taylor,

Menzies and Owen JJ; Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] per Gummow and Hayne JJ and [19] (Gleeson CJ and Crennan J agreeing).

Page 12 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 40 [1984] 1 WLR 892

at 898E–898G.

10.24 The two inquiries set out in the paragraph above are related, and ought not be considered in isolation.41 The strength of the parties’ substantive cases (as per the first inquiry) will often be an important consideration to be weighed in the balance of

Page 359 convenience.42 If the balance of convenience tends to support a respondent’s case/the refusal of interim relief, the applicant will likely require a strong prima facie case. If the balance of convenience tends to support the applicant’s case/the grant of interim relief, the requisite strength of the applicant’s prima facie case will be reduced.

41 Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 Samsung Electronics Co Ltd v Apple Inc (2011)217 FCR 238; [2011] FCAFC 156 at [67] Yates JJ. 42 See Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [67] there cited) per Dowsett, Foster and Yates JJ.

per Woodward J;

per Dowsett, Foster and

(and the authorities

Basic test — a balance of justice

10.25 The exercise of the jurisdiction in respect of interim injunctions was traditionally expressed as only being available to safeguard rights from ‘irreparable harm’ pending litigation (a concept considered in detail in 10.42–10.54 below). As Lord Diplock reasoned in the seminal authority of American Cyanamid Co v Ethicon (American Cyanamid) :43 The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right to which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff ’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.

43 [1975] AC 396

at 406

.

10.26 Since the court must determine whether justice requires the grant of an interim injunction, the extent to which each party is exposed to irreparable harm in the event that that party ultimately succeeds at trial is highly relevant. Lord

Page 13 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Bridge,in R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) ,44 expressed the aim of the court this way: If, in the end, the claimant succeeds in a case where interim relief has been refused, he will have suffered an injustice. If, in the end, he fails in a case where interim relief has been granted, injustice will have been done to the other party. The objective that underlies the principles by which the discretion is to be guided must always be to ensure that the court shall choose the course which, in all the circumstances, appears to offer the best prospect that eventual injustice will be avoided or minimised.

44 [1991] 1 AC 603

at 659

.

10.27 To minimise the prospect of injustice, the court must balance ‘the magnitude of the evil against the chances of its occurrence’.45 That is, it must assess the probability and magnitude of irreparable harm that the applicant would suffer if an injunction were not granted. This tends to involve an assessment of the respondent’s chances of making out a defence, and the probability and magnitude of irreparable harm

Page 360 that the respondent would suffer if an injunction were granted, but the respondent subsequently obtained a favourable judgment at trial.

45 Earl of Ripon v Hobart (1834) 3 My & K 169 at 176; 40 ER 65 at 68. See also Wilkinson v Rogers (1864) 2 De GJ & Sm 62 at 69; 46 ER 298 at 301; R v Macfarlane (1923) 32 CLR 518 at 551; [1923] HCA 39

per Isaacs J.

10.28 In Hubbard v Vosper ,46 Megaw LJ explained the importance of having regard to both the chances of success on the merits and to the magnitude of irreparable harm: One can readily imagine a case in which the plaintiff appears to have a 75 per cent chance of establishing his claim, but in which the damage to the defendant from the granting of the interlocutory injunction, if the 25 per cent defence proved to be right, would be so great compared with the triviality of the damage to the plaintiff if he is refused the injunction, that an interlocutory injunction should be refused.

46 [1972] 2 QB 84

at 97–8

.

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10.29 An arithmetic illustration will make the approach clear. Suppose that the applicant’s chances of success are 75 per cent and the magnitude of its harm could be quantified at $1000 should it fail to obtain an injunction but succeed at trial. The respondent’s chance of establishing its right is commensurably 25 per cent, but the magnitude of its loss could be quantified at $100,000, should it win at trial after being subjected to an interim injunction. Discounting the magnitude of harm by the chances of success, we come up with the figure of $750 for the value of the applicant’s risk, and the far greater sum of $25,000 for the value of the respondent’s risk. If the balance of justice involved only a strict balance of harms, we would have to say that the balance favours the respondent, even though its chances of success on the merits are far smaller than those of the applicant.

10.30 One approach to the balance of justice is therefore to discount the magnitude of each party’s irreparable harm by the probability of its occurrence (which of course includes the probability of success on the merits), and compare them.The matter was put by Professor Leubsdorf as follows:47 When irreparable harm to legal rights on both sides is possible, any interlocutory decision may lead to some loss. The court, however, can minimize the probable loss by making two inquiries. First, it should appraise the likelihood that various views of the facts and the law will prevail at trial. Second, the court should assess the probable loss of rights to each party if it acts on a view of the merits that proves to be erroneous. The court can then chart the course likely to inflict the smallest probable irreparable loss of rights.

47 J Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harvard Law Review 525 at 541 (emphasis added).

10.31 A similar understanding of the principle was expressed by Hoffmann J that ‘what is usually called the balance of convenience … is nowadays recognised as choosing the course which appears to involve the least risk of causing injustice,in the sense of causing incompensable damage to a party who is refused an injunction which should have been granted or injuncted when the injunction should have been refused’.48 It is not always feasible or appropriate to follow this mechanical approach, nor can it always deliver a conclusive result to the balance of justice, as explained

Page 361 below. However, whatever else may be involved in the balance of justice, common sense dictates that it must involve a comparison of possible harms by discounting the magnitude of each harm by the probability of its occurrence.

48 Management Publications Ltd v Blenheim Exhibitions Group plc [1991] FSR 348 at 352; see also Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405 judgment of the Privy Council).

at [18]

Assessing the parties’ relative chances of success on the merits

per Lord Hoffmann (delivering the

Page 15 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Position in England

10.32 Although the court has always been conscious of the need for some test of merits, it had been content, for a long time, with vague notions about the role of merits in the balance of justice.49 It was accepted that an applicant was not required to demonstrate that it would succeed at trial,50 but it was less clear what did have to be established. Quite frequently, it was said that the applicant had to show a ‘prima facie case’.51 As to the meaning of a ‘prima facie case’, an early and rare articulation of that notion is found in Challender v Royle ,52 where Cotton LJ regarded a prima facie case as one where, ‘if the evidence remains as it is, it is probable that at the hearing of the action [the applicant] will get a decree in his favour’.

49 The strength of the plaintiff’s case played a part in interim injunctions as early as the eighteenth century: J Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harvard Law Review 525 at 527. 50 Powell v Lloyd (1827) 1 Y & J 427; Glascott v Lang (1838) 3 My & Cr 451. 51 Norman v Mitchell (1854) 5 De GM & G 648 at 675; 43 ER 1022 at 1033 per Turner LJ; Challender v Royle (1887) 36 Ch D 425

.

52 (1887) 36 Ch D 425

at 436

.

10.33 American Cyanamid had an enormous impact in its approach to the notion of a ‘prima facie case’. In effect, it held that the requirement was no more than a threshold test. In that case, Cyanamid patented and began to market a newly invented artificial material for surgical sutures. Ethicon, which had hitherto dominated the market with a product made from catgut, responded by bringing out artificial sutures of its own. Cyanamid brought an action for patent infringement and sought an interim injunction pending trial. The primary judge found that Cyanamid had made out a strong prima facie case against Ethicon and, having considered the balance of justice, granted the injunction. The Court of Appeal unanimously reversed the primary judge’s decision.53 It concluded that it was unlikely that Ethicon’s product would be found to infringe Cyanamid’s patent and so, consequently, Cyanamid had failed to make out a prima facie case of infringement. Implicit in this finding was the view that in order to make out a ‘prima facie case’, an applicant must show that it was likely to succeed in its action.54 On this view, it appeared that an applicant could not obtain an interlocutory injunction unless its chances on the merits were greater than 50 per cent, no matter how great the applicant’s ongoing harm might be, or how little harm the respondent would suffer from a restraint.

53 American Cyanamid Co v Ethicon Ltd [1974] FSR 312 (CA). 54 American Cyanamid Co v Ethicon Ltd [1974] FSR 312 (CA) at 330–2 per Russell LJ and 333 per Stephenson LJ.

10.34 The House of Lords unanimously reversed the Court of Appeal’s decision. Lord Diplock delivered the only speech. His Lordship deprecated the ‘use of such

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Page 362 expressions as “a probability”, “a prima facie case”, or “a strong prima facie case” in the context of the exercise of a discretionary power to grant an interlocutory injunction’.55 Instead, his Lordship explained, all an applicant had to show was ‘that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried’.56

55 American Cyanamid Co v Ethicon [1975] 1 AC 396

at 407

; [1975] 1 All ER 504 (HL) at 510.

56 American Cyanamid Co v Ethicon [1975] 1 AC 396

at 407

; [1975] 1 All ER 504 (HL) at 510.

10.35 This position has found favour in Australia. Gummow and Hayne JJ in ABC v O’Neill expressed the view that the Court of Appeal had ‘placed too high the bar for the obtaining of interlocutory injunctive relief ’.57 Requiring an applicant to pass a threshold test of demonstrating that it has at least an arguable case makes good sense. A party who has no reasonable argument to support its position should not be allowed to waste the court’s time or trouble an opponent. As a threshold test, the need to show an arguable case is broadly analogous to the need to show that a statement of claim discloses reasonable grounds for bringing the claim. That the court in American Cyanamid was only intending to establish a threshold test was arguably implicit in Lord Diplock’s explanation that: … unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his or her claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction.58

By the same token, a respondent resisting an application for an interim injunction must also show that it has an arguable defence, otherwise an injunction would normally be granted.59

57 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [66] 58 American Cyanamid Co v Ethicon [1975] 1 AC 396

at 408

59 Official Custodian for Charities v Mackey [1985] Ch 168 3 All ER 257

and [19].

; [1975] 1 All ER 504 (HL) at 510.

; [1984] 3 All ER 689

; Attorney-General v Barker [1990]

.

10.36 Lord Diplock went on to hold that: It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.60

This statement was later interpreted by several decisions to mean that beyond ensuring that the applicant had an arguable case, the strength of the parties’ claims and their respective chances of success on the merits had no role to play in the exercise of the jurisdiction. That interpretation meant that whereas the Court of Appeal had made a greater than even probability of success a necessary condition, the House of Lords reduced the significance of the

Page 17 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments parties’ probability of success to almost nothing. This enlarged the significance of the balance of convenience, which became the more decisive inquiry in the determination of applications.

Page 363

60 American Cyanamid Co v Ethicon [1975] 1 AC 396

at 407

; [1975] 1 All ER 504 (HL) at 510.

10.37 American Cyanamid established several other critical propositions (including principles relevant to the balance of convenience). It remains good law in England and Wales, and of general application. An applicant for an interlocutory injunction must prove an arguable case, but not as much as a probability of success at trial. The court must also consider the relative strength of the parties’ cases.61 However, there has been a discrete but consistent erosion of the significance of American Cyanamid as far as the apparent ban on merits is concerned.62 Courts have not been willing to challenge the view that merits have no role to play beyond the threshold stage, but have discovered exceptions to that principle. A strong showing on the merits is required in an application for a mandatory injunction63 and if the interim injunction is likely to dispose finally of the dispute.64 This second exception can bite in a fair proportion of cases, because it is not uncommon for an interim injunction to give the applicant much of what it could otherwise expect in final judgment. A strong prima facie case is required, for example, to restrain a breach of covenant in restraint of trade.65 A common scenario in which this issue might arise is when an applicant claims to be entitled to restrain the respondent from taking up certain employment for two years, but the trial is only likely to be held near the end of that period.

61 Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405

at [18]

.

62 See, for example, R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603 . The House of Lords stressed the continued validity of American Cyanamid, while playing down the prohibition on a test of merits. Lord Goff at 671–2 regarded the prime purpose of American Cyanamid ‘to remove a fetter which appeared to have been imposed in certain previous cases, viz. that a party seeking an interlocutory injunction had to establish a prima facie case for substantive relief ’. 63 However, the Privy Council has made clear that the same test applies whether the injunction is best classified as prohibitory or mandatory: Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009]UKPC 16; [2009] 1 WLR 1405 at [19]

per Lord Hoffmann (delivering the judgment of the Privy Council).

64 NWL Ltd v Woods [1979] 3 All ER 614 at 626; [1979] 1 WLR 1294 Global Natural Resources plc [1984] 1 All ER 225 at 233

at 1307

Australia Pty Ltd v Burrup Holdings Ltd (2010) 80 ACSR 641; [2010] FCA 1273 at [80]–[88] 65 See, for example, Lansing Linde Ltd v Kerr [1991] 1 All ER 418; [1991] 1 WLR 251 v Snowball [2016] NSWSC 22

Position in Australia

10.38

per Black J.

per Lord Diplock; Cayne v

per Kerr LJ. See consideration of these authorities in Yara per Barker J. ; Cadgroup Australia Pty Ltd

Page 18 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments In Australia, Beecham was the leading authority at the time that American Cyanamid was handed down. Like American Cyanamid, Beecham involved a patent holder for pharmaceutical products seeking an interlocutory injunction to protect against alleged patent infringement. Beecham also had a similar procedural history. McTiernan J had refused the injunction at first instance and held that the applicant had not made out a strong enough case on infringement.66 Reversing this decision on appeal, the Full Court (Kitto, Taylor, Menzies and Owen JJ) granted the interlocutory injunction. It held that, in respect of the first limb, an applicant was required to make out:67

Page 364   … a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck (1884) 27 ChD 497 , at p 506; Challender v Royle (1887) 36 ChD 425 , at p 436. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks. Thus, if merely pecuniary interests are involved, ‘some’ probability of success is enough … Thus where the defendant goes into evidence on the interlocutory application the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case.

That is, an applicant does not need to show that its success at trial is more probable than not — only that it has a sufficient likelihood of success to warrant the grant of interlocutory relief. The applicant in Beecham showed such a strong probability of success that it was entitled to preservation of the status quo; or, put another way, the court implicitly assessed the strength of that probability of success as justifying interlocutory relief.68 The Full Court in Samsung Electronics Co Ltd v Apple Inc (Samsung v Apple) 69 regarded the varying extent of the requisite strength of probability as the ‘critical integer’ in the Beecham test. French CJ has also called it the ‘governing consideration’.70

66 (1967) 118 CLR 618 at 619; [1968] HCA 1. 67 (1967) 118 CLR 618 at 622; [1968] HCA 1 (emphasis added). 68 See discussion in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [56] Dowsett, Foster and Yates JJ. 69 (2011) 217 FCR 238; [2011] FCAFC 156 at [59]

per

.

70 Apple Inc v Samsung Electronics Co Ltd [2011] HCATrans 341

.

10.39 For many years, Australian courts reached vastly different conclusions as to whether American Cyanamid could be read consistently with Beecham.71 In ABC v O’Neill,72 Gummow and Hayne JJ explained the similarities and differences between Beecham and American Cyanamid in detail. Their Honours were content to read the ‘serious question’requirement in American Cyanamid consistently with the way in which this concept was explained in Beecham.73 However, their Honours were of the view that this did not resolve the tension between the two authorities, pointing to Lord Diplock’s statement that the court could proceed to consider the balance of convenience as long as the applicant did not ‘[fail] to disclose … any real prospect of succeeding in his claim’. Gummow and Hayne JJ were of the view that this statement was inconsistent with what was said in Beecham, and that it ‘obscure[d]the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought’. Accordingly, their Honours reasoned, to this extent American Cyanamid should not be followed.74

Page 365

Page 19 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

71 The range of different judicial reactions to American Cyanamid are outlined in J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Sydney, 2014, [21-365]. 72 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [68]–[72]

.

73 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [70] Crennan J agreeing at [19].

per Gleeson CJ and

74 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [71]and [19]

.

10.40 A high probability of the applicant’s ultimate success or a relatively strong case is also necessary (1) to obtain a mandatory injunction,75 (2) to restrain a public authority or officer from performing a statutory duty,76 and (3) in circumstances where the grant of an interlocutory injunction is likely to dispose finally of the dispute.77

75 See 10.60–10.62 below. 76 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324; [2009] FCA 17 at [28]

per Foster J.

77 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536

per McClelland J; Samsung Electronics Co

Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [71]–[74] Dowsett, Foster and Yates JJ.

(and the authorities there cited), [87] per

10.41 French CJ has indicated that whether the grant or refusal of the injunction would in effect finally dispose of the dispute is one of the ‘practical consequences’ in the Beecham test (which is set out in 10.23 above).78 It is an important consideration because if the court grants an interim injunction that in effect finally disposes of the dispute, it means that the court has denied the respondent the right to present its case at a contested final hearing.The matter of Samsung v Apple provides one example. It concerned an application for interlocutory relief in respect of the importation, sale and promotion of a tablet device said to have a short commercial life cycle.79 In light of the time it would have taken to get to a final hearing, the Full Court found on appeal that ‘the interlocutory injunctions granted by the primary judge have the practical effect of killing off the [respondent’s tablet device] in Australia’.80 The interlocutory injunction granted by the primary judge was immediately discharged. Key indicators of matters within this category include when the conduct will have concluded before the court is able to determine a claim for final relief81 and when, if an injunction is granted, there would be nothing left to go to trial on the issue of final relief.82

78 Apple Inc v Samsung Electronics Co Ltd [2011] HCATrans 341

.

Page 20 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 79 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [18],[35],[37],[49],[87] Dowsett, Foster and Yates JJ. 80 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [35] context of granting leave to appeal) per Dowsett, Foster and Yates JJ.

per

(statement made in the

81 See, for example, Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324; [2009] FCA 17 at [29]–[30]

per Foster J.

82 See, for example, Yara Australia Pty Ltd v Burrup Holdings Ltd (2010) 80 ACSR 641; [2010]FCA 1273 at [86] Barker J.

per

Irreparable harm

10.42 There is no need to consider ‘irreparable harm’ when an injunction is sought in order to protect an equitable as opposed to a legal right, such as an injunction to restrain a breach of trust.83 The foundation of the doctrine of ‘irreparable damage’ was developed by the English High Court of Chancery in response to claims for injunctive relief in respect of legal (as opposed to equitable) rights. A court of equity exercising its ancillary jurisdiction in respect of such a claim was said to be justified in granting an interim injunction because pre-judgment intervention was necessary to avoid irreparable harm. That harm was the ‘special circumstance creating an equity’that

Page 366 triggered the ancillary jurisdiction of the court.84 One form of special circumstance (and indeed the most common form) is irreparable harm or damage; that is, harm for which damages would be an inadequate remedy.

83 Heavener v Loomes (1924) 34 CLR 306 at 326; [1924] HCA 10

per Isaacs and Rich JJ.

84 See Heavener v Loomes (1924) 34 CLR 306 at 325–6; [1924] HCA 10

per Isaacs and Rich JJ.

10.43 Some judicial statements purport to require an applicant to demonstrate irreparable harm, as a third, free-standing inquiry to the two inquiries set out in Beecham and ABC v O’Neill (namely, prima facie case and balance of convenience), before injunctive relief is granted.85 However, it is now sufficiently well established that the better view is that ‘irreparable harm’ is not a matter antecedent to, and distinct from, the balance of convenience, but a matter going to the balance of convenience.86 Accordingly, ‘irreparable harm’ is not an independent criterion that must be satisfied for the grant of injunctive relief. However, this does not entirely diminish the significance of considerations as to irreparable harm. As the Full Court in Samsung v Apple explained:87 The assessment of harm to the plaintiff, if there is no injunction, and the assessment of prejudice or harm to the defendant, if an injunction is granted, is at the heart of the basket of discretionary considerations which must be addressed and weighed as part of the Court’s consideration of the balance of convenience and justice. The question of whether damages will be an adequate remedy for the alleged infringement of the plaintiff’s rights will always need to be considered when the Court has an application for interlocutory injunctive relief before it. It may or may not be determinative in any given case. That question involves an assessment by the Court as to whether the plaintiff would,in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted (see the discussion of this aspect in Spry, The Principles of Equitable Remedies (8th edn, 2010) at pp 383–389; at pp 397–399; and at pp 457– 462).

Page 21 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

The interaction between the Court’s assessment of the likely harm to the plaintiff, if no injunction is granted, and its assessment of the adequacy of damages as a remedy, will always be an important factor in the Court’s determination of where the balance of convenience and justice lies. To elevate these matters into a separate and antecedent inquiry as part of a requirement in every case that the plaintiff establish ‘irreparable injury’ is, in our judgment, to adopt too rigid an approach. These matters are best left to be considered as part of the Court’s assessment of the balance of convenience and justice even though they will inevitably fall to be considered in most cases and will almost always be important considerations to be taken into account.

85 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; [1986] HCA 58

per Mason ACJ;

Australian Broadcasting Commission v Lenah Game Meats (2001) 208 CLR 199; [2001] HCA 63 at [13]

per

Gleeson CJ; Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] Gleeson CJ and Crennan J.

per

86 See Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [61] per Dowsett, Foster and Yates JJ; Perdaman Chemicals and Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd (No 7) (2012) 92 ACSR 281; [2012] WASC 502 at [131]–[133]

per Edelman J.

87 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [62]–[63] and Yates JJ (emphasis added).

per Dowsett, Foster

10.44 Irreparable harm has been described as ‘a very grievous injury indeed’.88 Yet even in cases that do weigh ‘irreparable harm’, ‘irreparable injury’ or ‘irreparable

Page 367 damage’ in the balance, the meaning of this concept is far from clear. These terms are used in a variety of different ways. By and large, the court has avoided definition of the concept of irreparability and limited itself to general illustrations. It is therefore necessary to describe the different types of harms that may be considered irreparable.

88 Pinchin v London and Blackwall Railway Co (1845) 5 De GM & G 851 at 860; 43 ER 1101 at 1104.

Irreparability due to uncertainty of quantification

10.45 It may be relatively straightforward to establish the risk of a financial harm, but difficult to establish its extent. Potential harm may be irreparable, not because the other party would be unable to pay, but because there is a risk that the court would not be able to quantify the ensuing harm with sufficient certainty to justify a payment.89 Since any assessment of future consequences is to some extent uncertain, irreparability due to uncertainty of quantification is a matter of degree. The greater the uncertainty, the greater the risk that the harm remains uncompensated. Whether the uncertainty is such as to make the harm irreparable depends on the court’s assessment of the circumstances, and few general principles can be usefully extracted from reported cases. Longterm losses in disputes concerning trade marks, brand names, patents and the like can be particularly difficult to

Page 22 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments assess. For example, patent holders often seek interim injunctive relief to restrain alleged patent infringement by a generic manufacturer seeking to enter the market. The loss of a head start in entering the market before the arrival of additional competition is a recognised form of irreparable harm.90 In those cases, it is not uncommon to find submissions to the effect that it would be difficult if not impossible to assess damages, given that the court’s decision would affect trade patterns with wholesalers and retailers, market share, pricing, new entrants to the market, and lost opportunities. Uncertainty of quantification might also arise, for example, in relation to the setbacks involved in changing the name of a business.

89 Although at times the courts justify interim injunctive relief on the grounds that the calculation of damages postjudgment would be difficult, it is clear that what renders injunctive relief necessary is not the difficulty that the court may encounter, but the loss which the party may suffer as a result of the impossibility of accurately gauging the extent of that harm. 90 See AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 at 77

per Ashley J and the cases there cited.

10.46 Uncertainty of quantification poses serious problems that are often overlooked.91 Suppose that the development of a shopping centre was held up by an interim injunction that is discharged at a final hearing one year later. It may be possible to assess the short-term harm suffered by the developer, such as the increase to the cost of building, but it might be impossible to gauge long-term losses, especially if the developer’s business collapsed in the interim. In this type of situation, views will differ about the magnitude of harm, both before and after the interim decision. It would, however, be a mistake to conclude that because the magnitude of harm is uncertain, the court should, as a general principle, be reluctant to grant an injunction restraining the development in the above example.

Page 368

91 D Lichtman, ‘Uncertainty and the Standard for Preliminary Relief’ (2003) 70 University of Chicago Law Review 197.

Irreparability for lack of an adequate remedy

10.47 Harm may be irreparable because the law provides no remedy for it.92 That is, if an applicant is refused an interim injunction but succeeds in final judgment, it may be impossible to restore it to the position in which it would have been if an interim injunction had been granted.93 Alderson B considered irreparable harm to be injury which, ‘if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of a cause’, or that ‘could not be compensated in damages’.94 In one case, it was compared to ‘a fine old ornamental tree in a nobleman’s park be[ing] cut down’.95 What price could be put on the wrongful destruction of such an object? To take another example, it has been held that there is no compensation in law to a person who has been wrongly denied the opportunity to vote in national or local elections.96 Unless the court acts in time to protect the right in question, it would cease to exist with no possibility for corrective compensation. In such cases, the grant or refusal of an interim injunction may in effect be final, and it would therefore be just to decide the application in accordance with the underlying merits.

Page 23 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 92 See McCarty v The Council of the Municipality of North Sydney [1918] NSWStRp 33; (1918) SR (NSW) 210 at 215; R v Macfarlane (1923) 32 CLR 518 at 550; [1923] HCA 39

per Isaacs J.

93 Interpharma Pty Ltd v Commissioner of Patents (2008) 79 IPR 261; [2008] FCA 1498 at [71],[84]

per Jessup J.

94 Attorney-General v Hallett (1847) 16 M & W 569 at 581; 153 ER 1316 at 1321. 95 Mogul Steamship Co v M’Gregor, Gow & Co (1885) 15 QBD 476

at 486

96 Cf Woodford v Smith [1970] 1 All ER 1091; [1970] 1 WLR 806

.

.

10.48 There are, however, situations in which the decision to grant or withhold an interim injunction does leave room for later compensation, but any such compensation would nevertheless be inadequate. That idea that a remedy available in law is inadequate might seem contradictory at first sight.97 However, the apparent contradiction can be explained by the unfortunate use of the term ‘inadequate’. The question is not really about the adequacy or inadequacy of compensation,98 but about the justness of allowing a right to be converted into damages. Where an application for an interim injunction is made, the harm in question has not yet occurred. The court is faced with the question of whether it should allow the harm to occur and thereby countenance the possibility that a party’s right may become a right to damages in consequence of the court’s decision. The real issue in such situations is whether to remove the risk that one party’s right would be transformed into a mere entitlement to monetary compensation. ‘To allow a defendant to persist in conduct which is prohibited at the price of paying damages’, Lord Wilberforce observed, ‘is something the court does

Page 369 not countenance’.99 To take an extreme example, where a person is facing the risk of personal injury, it would be wrong for the court to refuse interim injunctive relief because the applicant would be entitled to damages in the event that he or she suffers that injury.

97 In M (A minor) v Newham London Borough Council [1995] 2 AC 633 at 663 ; [1994] All ER 602 at 619, Sir Thomas Bingham MR said: ‘I agree that money is an inadequate remedy for the injury which the child claims to have suffered [mental anguish]. So it is for the loss of a leg, or an eye, or a life. But it is usually the best the law can do. If plaintiffs do not want financial recompense they need not claim. It may be assumed that those representing the child regard it as better than nothing. It is not for the courts to refuse the only remedy they can give on the ground that plaintiffs are better without it.’ 98 It is rare for damages to be held ‘adequate’ in the sense that a court of equity must decline to exercise its discretion: see I C F Spry, The Principles of Equitable Remedies, 9th ed, Thomson Reuters,Sydney, 2014, pp 396–402. 99 Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130

at 152

per Lord Wilberforce (in dissent).

10.49 Damages are considered inadequate whenever the court concludes that it would be unjust to expose a party to the risk of losing its right and having to be content with an award of damages. This will commonly be the case where the right in question is not normally valued for its economic worth. For instance, in any case where use of a property right is in issue, damages may not be the main consideration.100 Several cases suggest that damages will rarely be an adequate remedy for the invasion of proprietary or possessory rights.101 Similarly, an applicant who is threatened with the denial of his or her right to free expression may have no monetary interest in exercising it, and would therefore not consider damages to be a fair exchange for its denial.102 In a case in which the applicants sought an interim injunction to restrain the Labour Party from suspending them, Lane LJ said that ‘in the political context which exists in this case, there can be no question of quantifying anyone’s loss in terms of cash’.103 In Donnelly v

Page 24 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Amalgamated Television Services Pty Ltd ,104 Hodgson CJ in Eq granted an injunction restraining the broadcasting of a video taken by police, which depicted the applicant being arrested in his underwear in a bedroom. In the course of considering the balance of convenience, his Honour noted that ‘it would be particularly difficult to quantify damages involved in gratuitous public humiliation of a person whose reputation will in any event be gravely damaged by conviction and sentence’.105

100 Smith Kline Beecham plc v Apotex Europe [2003] EWCA Civ 137 at [13] 101 Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72 at 77 Western Australia Incorporated [2010] WASC 203 at [29]

.

; Stageman v St John Ambulance Association in

.

102 Cf Cambridge Nutrition v BBC [1990] 3 All ER 523 , a case involving an application for an interlocutory injunction to restrain the intended broadcast of a television program, in which neither party was interested in monetary compensation. 103 Lewis v Heffer [1978] 3 All ER 354 at 368 104 (1998) 45 NSWLR 570

.

.

105 (1998) 45 NSWLR 570 at 575.

10.50 The court may regard damages as inadequate whenever a monetary payment would give the applicant something different from that which the threatened right represented to him or her. In the English case of Evans Marshall & Co Ltd v Bertola SA ,106 Sachs LJ observed:107 The standard question in relation to the grant of an injunction, ‘Are damages an adequate remedy?’, might perhaps, in the light of the authorities of recent years, be rewritten: ‘Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’

This approach was applied in a recent English case where the applicant sought an interim injunction restraining the respondent from breach of contract. The respondent

Page 370 resisted the application, and pointed to a clause in the contract which capped the recoverable damages for breach. The respondent contended that, far from the harm being irreparable, compensation had been agreed in advance and must therefore be considered adequate. The English Court of Appeal rejected this argument. It decided that where a contract limited damages to a sum which bore no relation to a party’s loss, it was not bound to hold that those damages had to be regarded as an adequate remedy. On the contrary, to so hold would be unjust because‘[t]he primary obligation of a party is to perform the contract. The requirement to pay damages in the event of a breach is a secondary obligation, and an agreement to restrict the recoverability of damages in the event of a breach cannot be treated as an agreement to excuse performance of that primary obligation’.108 However, it must be borne in mind that the inadequacy of damages is not necessarily a conclusive factor, but merely one consideration to be taken into account in the balance of justice.

106 [1973] 1 WLR 349

.

107 [1973] 1 WLR 349 at 379. 108 AB v CD [2014] EWCA Civ 229 at [27]

per Underhill LJ (Ryder and Laws LLJ agreeing).

Page 25 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

The problem of comparison

10.51 We have seen that the balance of justice requires that each party’s expected loss be assessed and compared with that of the opposing party. However, comparison calls for a common denominator, and this is not always easy to find in the context of applications for interim injunctions. The common denominator that naturally offers itself is money. Where both parties are exposed only to monetary harm, the comparison could be straightforward since it is confined to an assessment of the magnitude of their respective risks of irreparable monetary losses. However, difficulties of comparison arise where the parties’ respective losses are of different kinds and their interests are incommensurable. This will happen, for instance, where the applicant wishes to preserve a house for purely aesthetic or sentimental reasons, while the respondent wishes to remove it for commercial reasons. Similar incommensurability occurs where one party is interested in protecting his or her good name,while an opponent insists on exercising his or her freedom of expression.

10.52 In the United States, a purely economic approach involving putting a price tag on competing interests was adopted by one federal court. In American Hospital Supply Corp v Hospital Products Ltd,109 Judge Posner of the Seventh Circuit explained that a judge should: … grant the preliminary injunction if but only if P × Hp > (1 – P) × Hd [where P is the probability of success, Hp is harm to the plaintiff and Hd is harm to the defendant] or,in words, only if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win at trial), exceeds the harm to the defendant if the injunction is granted,multiplied by the probability that granting the injunction would be an error. That probability is simply one minus the probability that the plaintiff will win at trial; for if the plaintiff has,

Page 371   say, a 40 per cent chance of winning, the defendant must have 60 per cent chance of winning (1.00 – .40 = .60). The lefthand side of the formula is simply the probability of an erroneous denial weighted by the cost of denial to the plaintiff, and the right-hand side simply the probability of an erroneous grant weighted by the cost of grant to the defendant.

109 780 F2d 589 (7th Cir 1986) at 593–4. Judge Posner expressed a similar view in Roland Machinery Company v Dresser Industries, Inc 749 F 2d 380 (7th Cir 1984) at 387–8. See also J Leubsdorf, ‘Remedies for Uncertainty’ (1981) 61 Boston Law Review 132; R A Posner, Economic Analysis of the Law, 5th ed, Aspen Law & Business, New York, 1998, pp 565–6.

10.53 Although American courts have now accepted implicitly the reasoning underlying this approach, Judge Posner’s formulation attracted some criticism.110 Judge Swygert in dissent thought that this approach unduly limited the flexibility of interim injunctions by preventing judges from taking non-monetary considerations into account.111 Subsequent decisions in the same circuit approved the Posner approach, but at the same time added riders that

Page 26 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments robbed it of much of its arithmetic precision. First, it was held that Judge Posner’s formula came into play only after the applicant had shown that it faced a risk of irreparable harm and a likelihood of success on the merits. Secondly, it was stressed that the formula was not intended to establish a rigid approach, but only to provide an ‘effective shorthand method for expressing the important relationship between the likelihood of success on the merits and the degree of harm to the non-prevailing party’.112 Most importantly, the court warned against the impression that the formula is capable of producing exact results. The subjective quantification of harm and of the probability of success militates against precision, and makes it impossible to achieve a uniquely correct result. This last point goes to the heart of the economic balance of justice. There is no objective criterion for translating non-economic loss into money terms. Any such calculation has a strong subjective element. As was put by another American court:113 The ultimate decision of whether or not to grant the motion is in a real sense intuitive. The law of injunctions tells the judge what factors are relevant but ... the balancing and weighing process is not susceptible to quantification or formalization. Ultimately, the district judge has to arrive at a decision based on a subjective evaluation of the import of the various factors and a personal, intuitive sense about the nature of the case.

110 It has been said that it fails to represent American practice because it does not require the plaintiff to show, as a condition to obtaining injunctive relief, that it would suffer irreparable loss: L S Mullenix, ‘Burying (with Kindness)the Felicific Calculus of Civil Procedure’ (1987) 40 Vanderbilt Law Review 541. 111 ‘The judgment of the district judge in an injunction proceeding’, he explained, ‘must be flexible and discretionary — within the bounds of the now settled four-prong test’: American Hospital Supply Corp v Hospital Products Ltd 780 F 2d 589 (7th Cir 1986) at 609. See also Judge Swygert’s dissenting judgment in Roland Machinery Company v Dresser Industries, Inc 749 F 2d 380 (7th Cir 1984). 112 Lawson Products, Inc v Avnet, Inc 782 F 2d 1429 (7th Cir 1986) at 1434. 113 Lawson Products, Inc v Avnet, Inc 782 F 2d 1429 (7th Cir 1986) at 1436. See also Ball Memorial Hospital, Inc v Mutual Hospital Insurance, Inc 784 F 2d 1325 (7th Cir 1986).

10.54 It would appear, therefore, that even a court committed to a mathematical calculus of the balance of justice must accept that a mathematical method produces no more precision, and imposes no greater constraint on the court dealing with an application for interim relief, than the traditional method. The court must form a largely subjective assessment when placing a value on harm that is not purely economic in nature. It may seek to give such harm an enhanced weight in the balance of justice.

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Additional factors that may be weighed in the balance

10.55 The court must ask itself whether the parties would be in a position to compensate each other for any harm caused as a result of granting or withholding an interim injunction. In American Cyanamid, Lord Diplock said that:114 If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from

Page 27 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

On this view, it would appear that where the applicant would be in a position to compensate the respondent for any harm caused by an interim injunction, but the respondent would not be able to compensate the applicant for any harm suffered in the absence of an interim injunction, an interim injunction should be granted. There is, however, something objectionable about a test that turns predominantly on the parties’ relative ability to pay compensation. This drawback was recognised by Megarry VC in Apple Corps v Lingasong :115 This argument seems to me to lead towards the conclusion that whenever affluent plaintiffs claim an interlocutory injunction against defendants with slender resources, the balance of convenience points towards granting the injunction. I would reject any such conclusion. I accept that there are circumstances in which the means of the defendant will be relevant in considering whether to grant an injunction: but I do not think that the term ‘balance of convenience’ was ever intended to produce the result that the prosperous could go far to obtaining interlocutory injunctions against defendants of modest means merely by pointing to the financial disparity.

114 [1975] AC 396 at 408. 115 [1977] FSR 345 at 351.

10.56 The issue of impecuniosity may also be raised if the applicant cannot provide the usual undertaking as to damages (considered in 10.63–10.79 below), or cannot provide an undertaking of any value. The preferred view is that, in ordinary civil litigation, an applicant’s inability to provide an undertaking of any value should be regarded as but one factor to be weighed in the balance of convenience.116 It may be an especially weighty factor in the balance. Medrad Inc v Alpine Medical Pty Ltd 117 provides

Page 373 a recent example. It was accepted by the parties that the applicants had the capacity to pay damages pursuant to the usual undertaking, but there was no evidence that the respondent had assets available to satisfy an award of damages in the applicants’ favour. The court thus found that damages would not be an adequate remedy for the harm the applicants were likely to suffer.118 The court found that the inadequacy of damages and the balance of convenience favoured the grant of an interim injunction.119

116 Varley v Varley [2006] NSWSC 1025 at [42]–[69] (and the authorities there cited) per Campbell J. This is consistent, for example, with other authorities to the effect that an undertaking without substance does not necessarily dictate the refusal of interlocutory injunctive relief if that grant or refusal would destroy the subject matter of the action or destroy the respondent’s substantive defence: see Cooper v Moloney (No 6) [2012] SASC 212 at [75] 117 [2009] FCA 949 at [78]–[79]

per Blue J.

per Kenny J.

118 See too Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397; [2005] FCA 1675 at [50]–[51] J. 119 [2009] FCA 949 at [75].

Third parties and the public interest

per Sundberg

Page 28 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.57 The court may take into account the effect of its decision on third persons or the public at large. Courts of equity will ‘not ordinarily and without special necessity’ interfere by way of an injunction that materially injures the rights of third parties not before the court.120 In some cases, the effect of an interlocutory injunction on third parties may be decisive; in many other cases, they do not rate a mention. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia ,121 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ adopted expressly the following passage from Spry, The Principles of Equitable Remedies:122 … the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity ‘upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts’. Regard must be had ‘not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved’. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)

It has been stated that consideration of the impact on third parties is only likely to be weighed in the balance if the detriment is direct and not speculative.123

120 Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966

at 988

; Patrick Stevedores Operations No 2 Pty Ltd v

Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [65]–[66] Kirby and Hayne JJ. 121 (1998) 195 CLR 1; [1998] HCA 30 at [65]

per Brennan CJ, McHugh, Gummow,

.

122 I C F Spry, The Principles of Equitable Remedies, 5th ed, LBC Information Services, Sydney, 1997, pp 402–3. 123 Bestjet Travel Pty Ltd v Australian Federation of Travel Agents Ltd [2016] QSC 81 at [112] per Applegarth J.

10.58 The examples in which the impact on third parties was weighed in the balance cover an extensive range of factual circumstances. Cases concerning pharmaceutical products have variously taken into consideration that granting or refusing an interim

Page 374 injunction would deprive the public of a life-saving drug,124 limit consumer choice in paediatric analgesics,125 or cause confusion among vulnerable patients such as the elderly.126 One recent case took into account that an interlocutory injunction would likely require the respondent’s business to cease to operate, thereby making its employees redundant.127 In another case, the ACCC sought interlocutory injunctive relief to restrain the completion of a share sale agreement which, it submitted, would result in anti-competitive conduct injurious to the public interest.128 The public interest in free speech also makes interim injunctions to restrain the publication of allegedly defamatory material difficult to obtain.129 But the public interest in free speech and publication will not always trump other competing considerations.130

Page 29 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 124 Roussel-Uclaf v G D Searle & Co Ltd [1977] FSR 125 at 132

.

125 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363; [2013] FCAFC 102 at [84]

; note too at [33] per Bennett, Jagot and Griffiths JJ.

126 Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 at [65]

per Sundberg J.

127 Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Ltd [2015] FCA 460 at [65]–[66]

per Edelman J.

128 Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079 at [89] 129 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [16]–[18] Crennan J. 130 See, for example, Seven Network (Operations) Ltd v Harrison [2017] NSWSC 129 at [67]–[68]

per Jacobson J. per Gleeson CJ and

per McDougall J.

Other discretionary matters

10.59 It is not possible to formulate an exhaustive list of all of the matters the court may take into account in the exercise of its discretion. Some of the more commonly occurring matters include (a) any delay on the part of the applicant in bringing the application for interim relief (delay will speak against a need for urgency, and often indicate that a full hearing on the merits is a more appropriate course); (b) the conduct of the applicant (for example, if it is seeking an injunction to restrain a breach of contract, but it too is in breach131); (c) the possibility of alternative remedies; (d) any merely trivial infringement of the plaintiff’s legal rights;132 (e) matters arising in connection with any undertaking as to damages (considered in more detail in 10.63–10.79 below); and (f) what other undertakings (if any) the defendant might be prepared to give. It is also noted that compelling discretionary reasons are required if the court is to decline to enforce a negative contractual stipulation by way of injunction.133

131 Jackson v Hamlyn [1953] 1 All ER 887; [1953] 2 WLR 709 132 Llandudno Urban District Council v Woods [1899] 2 Ch 705 [204]

at 713

.

, cited in Uber BV v Howarth [2017] NSWSC 54 at

per Slattery J.

133 See Seven Network (Operations) Ltd v Harrison [2017] NSWSC 129 at [31]–[35] per McDougall J.

(and the authorities there cited)

Mandatory interim injunctions

10.60 Unlike prohibitory interim injunctions, which direct forbearance, mandatory interim injunctions require the performance of an act.134 It may make little difference

Page 375 whether an injunction orders the respondent to remove an offending object or whether it is couched in negative terms so as to prohibit the respondent from allowing the offending object to remain.However, it has been suggested that there is a substantial distinction between preventing a respondent from performing a particular act (whether the prohibition is expressed positively or negatively) and compelling a respondent to perform a particular act.135 A mandatory injunction is said to be restorative in nature, in that it is intended to compel a respondent to restore a state of affairs to its former position, or to undo what has been done.136 By contrast, a prohibitory injunction is meant

Page 30 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments to forbid the respondent from bringing about a state of affairs. It is, of course, true that there is a difference between ordering a respondent to refrain from putting up a building on land claimed by the applicant, and ordering a respondent to take down a building it has already put up on disputed land. However, the real question is not whether these orders require different conduct from the respondent, but whether different legal principles should apply when the court is asked to make one of these orders rather than the other.

134 I C F Spry, The Principles of Equitable Remedies, 9th ed, Thomson Reuters, Sydney, 2014, p 555. 135 I C F Spry, The Principles of Equitable Remedies, 9th ed, Thomson Reuters, Sydney, 2014, p 555. 136 Shepherd Homes v Sandham [1971] Ch 340

; [1970] 3 All ER 402

.

10.61 There is currently something of a conflict between two lines of authority as to whether a grant of an interim mandatory injunction is subject to special principles. The first line of authority is represented by what Megarry J said in Shepherd Homes Ltd v Sandham :137 … on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.

This position was adopted in several Australian authorities, most notably Queensland v Australian Telecommunications Commission .138 In a recent Federal Court decision, the court (acknowledging the existence of an unresolved conflict of authority) was of the view that the requirement of a ‘high degree of assurance’ was appropriate:139 This is particularly so in circumstances where the mandatory orders lend themselves to a greater likelihood of ongoing court supervision, and the practical effect of the orders is, in effect, to finally determine the rights of the parties.I am also not persuaded that there is either injustice or illogic associated with the proposition that a higher standard of assurance is appropriate where an applicant presses for mandatory relief rather than restraining orders. (Simply by way of analogy,I note the higher degree of persuasion required by the law in certain civil cases following the landmark decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334

.)

The second line of authority (which is now the dominant view) simply adopts the same test from Beecham and ABC v O’Neill; that is, a party seeking a mandatory

Page 376 interim injunction does not need to show a ‘high degree of assurance’. Instead, if the court is of the view that withholding a mandatory interlocutory injunction would carry a greater risk of injustice than granting it, even though the court does not feel a ‘high degree of assurance’ about the applicant’s chances of establishing its asserted right at trial, then there is no rational basis for withholding the injunction.140

137 [1971] Ch 340

at 351

(emphasis added).

138 (1985) 59 ALR 243 at 245; [1985] HCA 25

per Gibbs CJ (sitting at first instance). See also Parmalat Australia Pty

Ltd v VIP Plastic Packaging Pty Ltd (2013) 99 IPR 605; [2013] FCA 119 at [17]–[18]

.

139 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 99 IPR 605; [2013] FCA 119 at [21]

.

Page 31 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 140 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670

at 681

; [1986] 3 All ER 772 at 780–1

per Hoffmann J, cited by Gummow J with approval in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502 Ltd (1997) 78 FCR 132; [1997] FCA 860 (1989) 25 FCR 326 at 337–9 [2005] NSWSC 445 at [59] [35]

. See also Telstra Corporation Ltd v First Netcom Pty

per Lockhart, Beaumont and Hill JJ; Carson v Minister for Education (Qld)

per Spender J; The Mayo Group International Pty Ltd v Hudson Respiratory Care Inc per Young CJ in Eq; Bradto Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89 at [25]–

per Maxwell P and Charles JA; JTA Le Roux Pty Ltd as trustee for the FLR Family Trust v Lawson (No 2)

[2013] WASC 373 at [15]–[23]

per Edelman J.

10.62 The second line of authority ought to be preferred. The primary reason is that if, as is suggested, there is no deep conceptual distinction between mandatory and prohibitory injunctions, there is no reason to apply certain principles to the former but not the latter. The standard of success required should not be approached as a static matter, even in instances of ‘prohibitory’ interlocutory injunctions, because the balance of convenience will affect that standard.141 As Beech J explained, the first limb of the Beecham test will accommodate any concerns that may arise from the characterisation of the injunction as mandatory, because ‘[t]he strength of the probability there required depends, in part on the consequences likely to flow. If those consequences are more severe with respect to a particular mandatory injunction, then the probabilities required might rise’.142 If justice requires the court to prevent a serious and irreversible harm, it should make little difference whether the measure needed to achieve this end is prohibitory or mandatory.143 Besides, not all mandatory injunctions pose a serious threat to a respondent. Some may be quite easily undone or remedied by compensation. All of these factors can be weighed in the balance.

141 See JTA Le Roux Pty Ltd as trustee for the FLR Family Trust v Lawson (No 2) [2013] WASC 373 at[22] Edelman J.

per

142 Armstrong World Industries (Australia) Pty Ltd v Parma (2014) 101 ACSR 150; [2014] FCA 743 at [26]–[29] Beach J.

per

143 Racecourse Totalizors Pty Ltd v The Totalisor Administration Board of Queensland (1995) 58 FCR 119; [1995] FCA 1045 at [13]

per Kiefel J.

Undertaking as to damages Entitlement to an undertaking as to damages

10.63 The content of the usual undertaking as to damages is defined with some variation in different courts (in either the relevant practice note or rules of court)144

Page 377 and may also vary with the exigencies of the particular case. However, the fundamental substance of the undertaking is generally always the same. In the Federal Court, the Usual Undertaking as to Damages Practice Note (GPN-UNDR)(25 October 2016) states: The ‘usual undertaking as to damages’ if given to the Court in relation to any interlocutory order made by it or any interlocutory undertaking given to it, is an undertaking:

Page 32 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments (a)

to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)

to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

144 See also Court Procedures Rules 2006 (ACT) r 700; Uniform Civil Procedure Rules 2005 (NSW) r 25.8; Supreme Court of the Northern Territory Practice Direction No 3 of 1992; Uniform Civil Procedure Rules 1999 (Qld) r 264; Supreme Court Civil Rules 2006 (SA) r 246(4); Supreme Court Rules 2000 (Tas) r 445; Supreme Court of Victoria Commercial Court: Practice Note No 10 of 2011, [9.25]; Rules of the Supreme Court 1971 (WA) O 52 r 9.

10.64 The practice of invariably requiring an undertaking as a condition to the grant of an interim injunction was well established by the mid-nineteenth century.145 The history of the undertaking and its origins in equity have been explained in several Australian authorities.146 The imposition of the undertaking is driven by considerations of fairness to the respondent. Campbell J stated as follows in Varley v Varley :147 The matters which led the equity court to develop the practice of requiring an undertaking as to damages as a condition of interlocutory relief are pragmatic ones. Necessarily, interlocutory relief is granted at a time when not all the facts are known which will be relevant at any ultimate hearing. There is a risk that, if an interlocutory injunction is granted, and it turns out at the trial that the facts are such that it ought not to have been granted, parties to the litigation and other people might suffer damage as a consequence of the interlocutory injunction having been granted. It is, in nearly all circumstances, elementary fairness that the applicant for an injunction, who asks the court to intervene in a way which gives rise to that risk, should undertake to bear the financial consequences of that risk.

The undertaking is the practical measure by which the law affords a respondent equal protection in procedure,148 and the applicant accepts responsibility for the respondent’s possible losses as the quid pro quo of obtaining the interim injunction. As Lindley LJ said in Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249 at 253, ‘An undertaking is the price of an injunction, and if a man gets an injunction he must

Page 378 pay the price.’ The purpose of the undertaking was described this way in NAB v Bond Brewing Holdings Ltd :149 The usual undertaking as to damages is the price that must be paid by almost every applicant for an interim or interlocutory injunction. An injunction will by its nature require a person to do or abstain from doing some act and so is by its nature an order with a tendency to prejudice the person to whom it is directed. The practice of requiring the undertaking recognises that, the injunction being only interim or interlocutory and so the rights of the parties not having been finally determined, it may at a later stage appear that the applicant should in fairness compensate the party enjoined for the harm he has suffered.150

145 Novello v James (1854) 5 De GM & G 876; Chappell v Davidson (1856) 8 De GM & G 1; 44 ER 289; Wakefield v Duke of Buccleugh (1865) 11 Jur NS 523; 12 LT 628 Coulson (1878) 7 Ch D 764

at 764

; Graham v Campbell (1878) 7 Ch D 490

(CA); Newcomen v

; cf Attorney-General v Albany Hotel Co [1896] 2 Ch 696

.

Page 33 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 146 See, most notably, Chisholm v Rieff (1953) 2 FLR 211 at 214–5

per Kriewaldt J; Air Express Ltd v Ansett

Transport Industries (Operations) Pty Ltd (1981)146 CLR 249 at 259–61; [1981] HCA 75 DPP (WA) (2006) 226 CLR 486; [2006] HCA 38 at [30]–[34] Crennan JJ. 147 [2006] NSWSC 1025 at [67]

per Aickin J; Mansfield v

per Gleeson CJ, Gummow, Kirby, Hayne and

.

148 See A A S Zuckerman, ‘Dispensation with Undertaking in Damages — an Elementary Injustice’ (1993) 12 Civil Justice Quarterly 268; A A S Zuckerman, ‘Interlocutory Injunctions in Quest of Procedural Fairness’ (1993) 56 Modern Law Review 325. 149 [1991] VicRp 31; [1991] 1 VR 386 at 559–60 added).

per Kaye, Murphy and Brooking JJ (citations omitted, emphasis

150 See too similar expressions in Graham v Campbell (1878) 7 Ch D 490 at 494 per James, Cotton and Thesiger LLJ, as reproduced in Commonwealth v Sanofi (formerly Sanofi-Aventis) (2015) 113 IPR 95; [2015] FCA 384 at [26] ; Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 311–2 Gibbs J, 318 per Stephen J and 324–5 per Mason J; [1981] HCA 75.

per

10.65 The High Court reiterated recently that the undertaking ‘is given to the Court, for enforcement by the Court; it is not a contract between parties or some other cause of action upon which one party can sue the other’151 and stated that ‘[i]t is worth repeating the obvious proposition that such an undertaking is not lightly to be given’.152 In Love v Thwaites ,153 the Court of Appeal (Warren CJ, Tate and Beach JJA) upheld a decision in which the appellant had been ordered to pay approximately $3.4m in damages and $2.4m in interest flowing from the grant and subsequent discharge of an interlocutory injunction. Tate JA stated that these significant consequences ‘provide a salutary lesson to practitioners and their clients to appreciate the conditions governing the grant of an interlocutory injunction. The usual undertaking carries serious risks; it would be wholly erroneous to view it as no more than a ritual or a formality’.154 In some cases, the risk that a sum payable pursuant to an undertaking as to damages is enormous (for instance, in an application seeking to restrain the sale of a valuable piece of machinery for which there may not be another buyer, or in an application seeking to restrain construction works on a large site), may deter an application for an interim injunction.

151 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [14] (per curiam). This is consistent with the English position. A succinct summary of English authority on the enforcement of an undertaking as to damages appears in Fitzroy All Pty Ltd v Mansfield [2014] WASC 498 at [96]–[103] 152 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [14] 153 [2014] VSCA 56

per Kenneth Martin J. (per curiam).

.

154 [2014] VSCA 56 at [62].

10.66 The usual undertaking must generally be given unless there are exceptional circumstances155 or, put another way, ‘very obscure’156 or ‘special’ circumstances.157 Some examples of cases in which an applicant may not be required to provide the usual undertaking is considered in more detail at 10.76–10.78 below.

Page 379

Page 34 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

155 See Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337 v Commonwealth Bank of Australia [2014] NSWCA 265 at [92]

per Young J; Goater

per Ward JA.

156 McCann; Re Walton Construction (Qld) Pty Ltd (in liq) v QHT Investments Pty Ltd [2016] FCA 1092 at [20] Perram J. 157 Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [81]

per

per Rares J.

Sufficiency of the undertaking; fortifying the undertaking

10.67 In Myring v Beale ,158 Simpson CJ in Eq explained that ‘this Court ought not to be satisfied with an undertaking which may possibly prove to be illusory. The Court of Equity imposes this undertaking on an applicant as a condition of his injunction, and it ought to see that the condition is not a mere form’. Where the court is in doubt about the enforceability of the undertaking, it may require the applicant to provide adequate security to ensure that its undertaking is of value. Beaumont, Burchett and Emmett JJ said the following in First Netcom Pty Ltd v Telstra Corporation Ltd :159 There is a ‘usual’ form of undertaking as to damages. However, since its terms are a matter for the discretionary judgment for the court, its provisions will be moulded so as to fit the circumstances of the case at hand. These circumstances may include the likelihood of the plaintiff’s insolvency, which might produce an inability to discharge any liability to the party enjoined pending a final hearing that might accrue under the undertaking. In that event, the court is required to exercise its judgment as to what is appropriate in order to ensure the reality of adequate compensation, and not merely an empty form of compensation, to a party who is ultimately successful. In such a case the court may stipulate a further condition in connection with the undertaking, in the event that the plaintiff should elect to give the undertaking, and thus secure the injunction. The extra condition could be that any contingent liability under the undertaking be appropriately secured: for example, see Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167 . Again,the plaintiff can elect to comply with this condition or decline to do so, but must accept the consequences of its election.

158 (1899) 20 NSWLR 6 at 7. 159 (2001) 179 ALR 725; [2000] FCA 1269 at [23]–[24]

.

10.68 For example, security may be required from a company with inadequate means (for example, the individual standing behind the company may be required to provide a personal undertaking fortified by security), or an applicant who is only a nominal applicant. The court may consider the existence or extent of any assets in determining the sufficiency of undertakings, as well as whether the applicant is willing to offer any security.160 In South Sydney District Rugby League Football Club Ltd v News Ltd ,161 the applicant unsuccessfully sought an interlocutory injunction restraining several of the respondents from excluding the applicant from the 2000 NRL competition. The court took into account that there had been no offer from the applicant,or its supporters, to provide

Page 35 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments security for the undertaking.162 As one part of the court’s overall assessment, it held that it was not satisfied that the applicant could compensate the respondents or other third parties for losses they would sustain if the applicant succeeded at the interlocutory stage but was unsuccessful at trial.

160 See, for example, Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279 at [69] 161 (1999) 169 ALR 120; [1999] FCA 1710

per Katzmann J.

per Hely J.

162 (1999) 169 ALR 120; [1999] FCA 1710 at [176].

10.69 Other common examples involve foreign applicants who, at least as far as English authorities are concerned, bear the onus to produce specific evidence as to

Page 380 their capacity to meet an undertaking as to damages if called upon to do so.163 An interim injunction may be granted subject to the condition that the foreign applicant pay an amount into court or, as mentioned above, give security for damages. It is relevant whether there is a reciprocity agreement for enforcement of orders between the Australian jurisdiction and the foreign one.164 The court may also impose conditions, such as that the applicant proceed expeditiously with its action. The jurisdiction of inserting special provisions into the undertaking in damages is a useful and flexible (albeit little used) facility that can enable the court to fine-tune its orders and strike a fair balance between the parties’ competing interests.

163 See Vapormatic Co Ltd v Sparex Ltd [1976] 1 WLR 939 497; [1989] 1 WLR 1268 at [38]

and Lock International plc v Beswick (1989) 16 IPR

, as cited in Hotline Communications Ltd v Hinkley (1999) 44 IPR 445; [1999] VSC 74

.

164 Hotline Communications Ltd v Hinkley (1999) 44 IPR 445; [1999] VSC 74 at [39]

per Warren J.

10.70 It is also noted that the impecuniosity of an applicant ought to be brought to the court’s attention whenever an ex parte application for an interlocutory injunction is made.165

165 See 10.84 below.

Enforcement of the undertaking

10.71 The entitlement to damages does not arise independently of the undertaking, nor does it follow automatically upon the occurrence of an event such as the discharge of an interim injunction (though this may indicate the interim

Page 36 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments injunction was wrongly obtained) or the applicant’s withdrawal of its claim before final hearing. The undertaking does not found or create a cause of action for a respondent or third party wishing to obtain compensation. Rather, a respondent or third party166 in such a position must apply for enforcement of the undertaking. Enforcement of the undertaking is usually a two stage-process: (1) the court decides whether the undertaking should be enforced; and (2) if so, the court orders an inquiry as to damages, at which time the respondent or third party must prove that the loss said to be suffered was suffered as a consequence of the interim injunction.167 Until the inquiry is held, the respondent or third party can only be said to have a mere hope of being awarded compensation, or a mere right to apply. That mere hope is not a chose in action.168

166 The formulation of the usual undertaking as to damages was originally and expressly limited to damage to another party. However, the modern formulations of the usual undertaking prescribed by various rules of court enable undertakings to be given in favour of a person who is not a party to the proceedings if that person’s interests may be affected by the order. See references to the various formulations in note 144 above. 167 If the interim injunction is discharged before trial, a number of procedural options are open, as explained in Cheltenham and Gloucester Building Society v Ricketts [1993] 4 All ER 276 at 287–8; [1993] 1 WLR 1545 168 Cirillo v Citicorp Australia Ltd (2004) 236 LSJS 24; [2004] SASC 293 at [72]–[74] Australian Securities and Investments Commission v Endresz [2014] FCA 786 at [72]

at 1557–8

.

per Gray J (Bleby J agreeing); per Pagone J.

10.72 In the context of proprietary injunctions (as opposed to freezing orders and others), an undertaking as to damages is to be enforced in all but exceptional

Page 381 circumstances,169 for a number of reasons. As explained at 10.64 above, the principle of equality before the law requires that if the applicant receives interim protection for its substantive rights, so should the respondent.170 Further, the undertaking gives rise to a reasonable expectation of compensation, should final judgment vindicate the respondent’s position. Lastly, uncertainty of enforcement is likely to encourage irresponsible or groundless applications for interim relief. In the absence of compelling reasons to the contrary, there can be little justification in defeating expectations which are not only legitimate, but created by the court’s own procedure.

169 Graham v Campbell (1878) 7 Ch D 490 Reuters, Sydney, 2014, pp 684–7. 170 Newson v Pender (1884) 27 Ch D 43

(CA); I C F Spry, The Principles of Equitable Remedies, 9th ed, Thomson

at 62–3

per Cotton LJ.

10.73 This does not mean that damages are awardable in all circumstances. The decision is still discretionary. Three issues which may affect the court’s decision are canvassed below. First, an undertaking need not be enforced if the damage is insignificant.171 Where the damage is significant, the respondent is entitled to compensation for harm suffered as a result of the interim injunction through no fault of its own. As Mason J explained in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (Air Express) (in dissent but not on this point):172 It is no part of the purpose of the undertaking to protect the defendant against loss or damage which he would have sustained otherwise, as for example, detriment which flows from the commencement of the litigation itself. That is loss or

Page 37 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments damage which the defendant must bear himself, as he does when no interim injunction is sought or granted. Consequently, it is for the party seeking to enforce the undertaking to show that the damage he has sustained would not have been sustained but for the injunction.

Secondly, there are a number of ways in which a respondent may contribute to its own harm or exacerbate it. Delay in an application for enforcement of an undertaking can justify the court’s refusal to enforce the undertaking.173 The court may look to the reasons for, the extent of, and the consequences of the delay to determine whether, in all the circumstances, an award of damages would be unjust. There may also be a failure on the part of the respondent to mitigate the damage suffered — for instance, by failing to apply for an early discharge of an interim injunction. A respondent who otherwise had grounds for doing so may be blamed for harm suffered after that date.

171 Re Hailstone; Hopkinson v Carter (1910) 102 LT 877

.

172 (1981) 146 CLR 249 at 325; [1981] HCA 75. See too similar remarks of Gibbs J at 313, that the party seeking to enforce the undertaking must show that the order granting interim injunctive relief ‘was a cause without which the damage would not have been suffered’. 173 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382 at [100]–[101]

per Simmonds J and the authorities there cited.

10.74 Thirdly, the question of causation may give rise to difficulty, as illustrated by Air Express. The Department of Transport approved the defendants’ application for a licence to import two aircraft, but before the licence was formally granted, the plaintiffs obtained an ex parte interim injunction against the department restraining it from issuing the import licence. The defendants were subsequently joined to the litigation and secured a judgment entitling them to import the aircraft. The delay caused the

Page 382 defendants a loss of some $1.7m, which they sought to recover from the plaintiffs under the undertaking in damages. The issue was whether the defendants’ losses were caused by the injunction, or whether they would have incurred those losses in any event. The claim for damages was rejected on the grounds that the loss would have occurred even if the injunction had not been granted, because the department would in all probability have withheld the licence pending the legal proceedings in which the plaintiffs challenged the defendants’ right to import the aircraft. Put another way, it was found that the losses were caused by the existence of that litigation and not the existence of the injunction. It was open to the plaintiffs to refrain from applying for an interim injunction and rely on the department to withhold the licence out of deference to the pending litigation. But the department would not have been obliged to withhold the licence.Instead, the plaintiffs chose to obtain an interim injunction to impose a legal restraint on the department. It may therefore be argued that the plaintiffs should not have been entitled to argue that the injunction, which they obtained in order to alter the legal position, had played no part in the consequent delay. Indeed, had there been no possibility of a licence being granted, the plaintiffs’ application would have been considered pointless and the court would not have granted the injunction.

Measure of damages

10.75

Page 38 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments The process of assessment of compensation cannot be constrained by a rigid formulation.174 On matters of causation and remoteness, Aickin J in Air Express175 reasoned that the usual undertaking as to damages permitted recovery of the following kinds of damage: In a proceeding of an equitable nature it is generally proper to adopt a view which is just and equitable, or fair and reasonable, in all the circumstances rather than to apply a rigid rule. However the view that the damages should be those which flow directly from the injunction and which could have been foreseen when the injunction was granted, is one which will be just and equitable in the circumstances of most cases and certainly in the present case.

The first two matters to be considered are: (1) the purpose that the undertaking as to damages was to serve; and (2) the causal connection or standard of causal connection most appropriate to that purpose.176 The more specific questions to be answered will be: (1) what is the loss now alleged by the party seeking to enforce the undertaking; (2) did that loss flow directly from the interim injunction; and (3) could a loss of the kind actually sustained have been foreseen at the time the interlocutory injunction was granted?177

Page 383

174 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [18]

(per curiam).

175 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 266–7; [1981] HCA 75 affirmed in European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [18] 176 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [18]

(per curiam).

(per curiam), with reference to Air Express

Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 at 324; [1981] HCA 75 dissent but not on this point). 177 European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6 at [29] (formerly Sanofi-Aventis) [2015] FCAFC 172 at [73]

,

per Mason J (in

(per curiam); Commonwealth v Sanofi

per Nicholas and Kenny JJ (Dowsett J agreeing).

Dispensing with the undertaking as to damages

10.76 The court has a discretion to dispense with the undertaking in damages in limited circumstances. In England, dispensation has occurred in cases where the Crown or another public authority seeks to enforce the general law (as distinct from proprietary rights), in matrimonial proceedings, and when liquidators of a company are merely performing their statutory duties and have no personal interest in the outcome of the proceedings (in which case, an unlimited undertaking may not be required).178

178 See J McGhee QC (ed), Snell’s Equity, 33rd ed, Sweet & Maxwell, London, 2014, [18-067] and the authorities there cited. See too Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [85] Rares J.

per

10.77 Another scenario in which the possibility of dispensation arises is when a law enforcement or other public agency seeks an interim injunction to restrain a threatened breach of the law or otherwise act in the public interest. The

Page 39 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments practice that the Attorney-General does not give the undertaking has persisted in Australian jurisdictions, although it has not extended to all statutory office-holders who apply for interlocutory relief.179 There have also been obiter remarks to the effect that dispensation for statutory bodies might be warranted if there are exceptional circumstances such as a manifest threatened breach of the law, or a proven danger of irremediable harm or serious damage.180

179 See Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [85] 180 Blue Wedges Inc v Port of Melbourne Corp [2005] VSC 305 at [11]

per Rares J.

per Mandie J.

10.78 The main justification that tends to be given for dispensation in such cases is that the risk of having to compensate respondents could deter public bodies from seeking such interim relief, thus hindering them in the discharge of their law enforcement obligations. Professor Zuckerman has argued that this is an unconvincing justification, because there is no good reason why the risk of law enforcement should be borne entirely by the respondent who has been restrained from doing that which it is later established it was entitled to do all along.181 It is possible to argue that a procedure which provides the applicant with interim protection for its rights, but denies the respondent an equivalent protection, cannot be justified by reference to legitimate objectives.

181 A A S Zuckerman, ‘Dispensation with Undertaking in Damages — an Elementary Injustice’ (1993) 12 Civil Justice Quarterly 268.

Non-compliance

10.79 Compliance with interim injunctions, as with other binding court orders, is enforceable by proceedings for contempt of court.182 Accordingly, it is critical that the terms of the interim injunction are expressed clearly and with an appropriate

Page 384 degree of precision,183 even though such drafting is sometimes ‘far from easy’.184 A party (including a corporation, through its responsible officers) must take adequate and continuing steps to ensure compliance with any injunction made against it.185 To avoid being subject to an injunction, a respondent may give an undertaking to the court to refrain from doing a certain act or to perform a certain act. Breach of such an undertaking may also result in proceedings for contempt.186

182 Attorney General v Times Newspapers Ltd [1992] 1 AC 191

. For the nature of contempt proceedings for failure

to obey an injunction, see CFMEU v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448; [2015] HCA 21 at [65] Nettle J.

per

183 See ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259; [1992] FCA 474 per Lockhart J (Gummow J agreeing and French J generally agreeing); Attorney-General v Punch Ltd [2003] 1 AC 1046

; [2003] 1 All ER 289 at [35]

per Lord Nicholls; Orleans Investments Pty Ltd v Mindshare Communications

Page 40 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Ltd (2009) 254 ALR 81; [2009] NSWCA 40 at [96] NSWCA 50 at [29]

; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014]

per Leeming JA (Meagher JA and Tobias AJA agreeing).

184 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 260; [1992] FCA 474 Lockhart J (Gummow J agreeing and French J generally agreeing).

per

185 Re Galvanized Tank Manufacturers’ Association’s Agreement [1965] 1 WLR 1074 at 1090 per Megaw J (sitting as a member of the Restrictive Practices Court); Energizer Australia Pty Ltd v Procter & Gamble Australia Pty Ltd [2016] FCA 347 at [34]

.

186 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21

; Australasian Meat Industry

Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112–13; [1986] HCA 46

.

Ex parte interim injunctions General principles

10.80 Notice of an application for an interim injunction must be given to a respondent as a matter of elementary justice. Isaacs J in Thomas A Edison Ltd v Bullock said the following:187 There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur when justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to court,and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.

Ex parte applications for interim injunctive relief will only be made in rare circumstances, either because (1) notice would enable the respondent to take steps to defeat the application, or (2) in extreme cases, there is literally no time to notify the respondent of the application.188 It has been said in respect of the second situation that there must be a ‘true impossibility’ of giving notice.189 A court may decline an application for an ex parte interim injunction on the basis that neither of those two

Page 385 circumstances applies, and so the respondent ought to have been given an opportunity to appear and present its case. In cases of interim injunctive relief, such circumstances could conceivably involve applications to restrain such things as someone’s imminent deportation from the jurisdiction, the removal of a child from the jurisdiction, the imminent destruction of property,190 or the prevention of the sale of a unique object191 (though these applications need not necessarily be heard ex parte). Ex parte applications for a Mareva (freezing) order or an Anton Piller (search) order are of a different quality, and are considered in detail in 10.95–10.138 and 15.232–15.275, respectively.

187 (1912) 15 CLR 679 at 681; [1912] HCA 72. 188 Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405 at [13] per Lord Hoffmann (delivering the opinion of the Privy Council), approved in International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [150]

per Heydon J.

189 Bates v Lord Hailsham of St Marylebone [1972] 3 All ER 1019 at 1025; [1972] 1 WLR 1373

at 1380

.

Page 41 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 190 Brand v Mitson (1876) 24 WR 524; London and County Banking Co v Lewis (1882) 21 Ch D 490

.

191 Chanoch v Hertz (1888) 4 TLR 331.

10.81 In most cases, orders for an interim injunction granted ex parte will include an early, fixed return date so that the court may consider the matter promptly in the presence of all parties. It has been said that it is generally undesirable for ex parte relief to be granted ‘until further order’ because the party subject to ex parte relief should not have to apply to the court to discharge it.192 At the return date, the party who obtained the injunction must prove that the injunction should be maintained.193 It would be wrong in principle to require a party who was denied participation in the ex parte proceedings to be saddled with the burden of persuading the court that the order should be set aside. It would, however, be unrealistic to suppose that the question whether to maintain the interim relief can always be considered as if no ex parte injunction had been granted. In practice, it may well be necessary for the respondent to persuade the court of the absence of a risk of harm to the applicant’s rights.

192 Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436; [2004] NSWCA 195 at [109] McColl JA agreeing).

per Giles JA (Spigelman CJ and

193 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd [1991] 22 NSWLR 730 at 731 per McLelland J.

Duty to make full disclosure

10.82 Ex parte proceedings involve a denial of the right to be heard. They may expose the respondent to a risk of serious harm to its rights, even if the order is of short duration. Postponing a transaction, for instance, may rob it of its main benefit.Delaying an activity, such as the broadcast of a television program, may irretrievably remove the reason for carrying on with it. The fact that the respondent is not present to draw attention to the harmful potential of the restraint makes it all the more important that the law provides some protection for the interests of an absent respondent. But the court has no independent means of assessing the validity of the applicant’s arguments or of learning the respondent’s circumstances.

10.83 To enable the court to make a balanced decision, and so that there can be public confidence in ex parte decisions,194 the applicant has a duty to make full and frank disclosure of all material facts. This includes any facts that may be disadvantageous to its application, or facts upon which the absent respondent (if present) would

Page 386 presumably have relied upon by way of defence to the application.195 As Allsop J stated in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd :196 In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application … That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what

Page 42 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives …

194 See Town & Country v Partnership Pacific (1988) 20 FCR 540 at 543; 97 ALR 315 at 317

.

195 This is especially so in cases in which the court is asked to exercise a discretion: Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [47] 196 [2005] FCA 955 at [38]

per Allsop J.

(citations omitted).

10.84 It has been held in some English decisions that the duty of disclosure applies not only to material facts known to the applicant, but also ‘any additional facts which he would have known if he had made inquiries’.197 These authorities also indicate that proper inquiries must be made before an ex parte application is made. The extent of such inquiries depends upon the circumstances, including the nature of the applicant’s case. Relatedly, it is no excuse for an applicant that failed to disclose a material fact (that is, a fact that would have otherwise been taken into account) to say that it was not aware of the importance of that fact.198 Materiality is decided by the court, not by the applicant or its legal advisers.199 Accordingly, it is prudent for an applicant to err on the side of disclosure.

197 Brink’s Mat Ltd v Elcombe [1988] 3 All ER 188; [1989] FSR 211 . This decision provided a summary of principles relevant to disclosure that have been reproduced and cited with approval in several Australian authorities: see Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752 at [43]–[44] 198 Papas v Grave [2013] NSWCA 308 at [71] 199 Orpen v Tarantello [2009] VSC 143 at [27]

per Randall AsJ.

per Emmett JA (Basten JA and Sackville AJA agreeing). per Beach J.

10.85 An applicant should present the court with a full account of the dispute and its surrounding circumstances, and avoid giving a partial or misleading impression. An applicant who, for instance, suppresses the fact that its undertaking in damages is worthless (whether due to impecuniosity, or because a foreign applicant does not have sufficient assets within the jurisdiction to satisfy the undertaking) will be in breach of the duty.200 An applicant must regard its obligations as continuing, and inform the court of any material change that occurs while an interim order is in force.201

200 Manor Electronics Ltd v Dickson [1988] RPC 618 76 at [45]

. See also DRD Australasia APS v Stratton (No 2) [2008] WASC

per Le Miere J; Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499;

[2009] QSC 195 at [36]

per Applegarth J.

201 Staines v Walsh [2003] All ER (D) 117 (Jun); [2003] EWHC 1486

(Ch).

Page 43 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.86 Notwithstanding these procedural safeguards, it may be unrealistic to expect that an applicant can always make up for the procedural disadvantages involved in

Page 387 the respondent’s exclusion from the process. As Scott J explained in Columbia Picture Industries v Robinson :202 I have myself on many occasions read the material in support of a plaintiff ’s application for an interlocutory injunction and have formed the view that the application ought to succeed; but then, on reading the material put forward by the defendant in opposition to the grant of an injunction, have changed my mind. This is not because the plaintiff’s affidavits have omitted relevant material. It is rather an indication of how the same material may be differently presented depending on the interest of the presenter. It underlines the need, if justice is to be done, for a defendant to have an opportunity to be heard. … The solicitors are retained by and owe a duty to their clients, the applicants. They satisfy themselves that their clients’ interests require the protection of an Anton Piller order and are instructed by their clients to obtain one. They have a duty to see that full disclosure is made to the court of any relevant evidence. But relevance and irrelevance are not matters of white and black. There is usually a grey area of arguable relevance and arguable irrelevance. What is a solicitor’s duty in respect of evidence falling into the grey area? It is to be borne in mind that the solicitor, when taking his decision as to what is relevant to be included in the affidavits in support of the Anton Piller application, will be likely already to have satisfied himself, as his clients will have been satisfied, that the respondent is a rogue against whom an Anton Piller order ought to be granted. The solicitor does not and cannot be expected to present the available evidence from the respondent’s point of view.

202 [1987] Ch 38

at 75

; [1986] 3 All ER 338 at 370e

, 370g–j.

Sanctions for failure to disclose

10.87 Breach of the duty to disclose will prima facie entitle the respondent to immediate discharge of the order and restoration of the position it was in before the order was granted.203 Inadequate disclosure is the most common ground for the setting aside of an order obtained ex parte.204 An interim injunction obtained in breach of this duty may be set aside with costs, even if, upon full disclosure, the applicant would have been entitled to an order in similar terms. This is not automatic. It is a matter for the court’s discretion, and will depend on the circumstances of each case.205 The essential principles were summarised by Henry LJ in Knauf UK GmbH v British Gypsum Ltd :206 … there is a ‘golden rule’ that an applicant for relief without notice must disclose to the court all matters relevant to the exercise of the court’s discretion; that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the grant of such relief; that a due sense of proportion must be maintained between the desiderata of marking the court’s displeasure at the non-disclosure and doing justice between the litigants; that for these purposes the degree

Page 388   of any culpability on the part of the applicant or of any prejudice on the part of the respondent are relevant to the reviewing

Page 44 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments court’s discretion; and that a balance must be maintained between undermining ‘the heavy duty of candour and care’ which falls on applicants and promoting a ‘tabula in naufragio’ to save respondents who lack substantial merits.

It is not always easy to strike a balance between the need to punish non-disclosure by discharging the ex parte injunction, and the need to protect the applicant from undue harm to its interests (that is, avoiding a discharge when it might free the respondent from an otherwise just restraint). Furthermore, there is a risk that if it becomes too easy to obtain a discharge on the grounds of non-disclosure, the court would have to devote disproportionate time to investigating allegations of non-disclosure, instead of considering the merits of the interim injunction.

203 Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678 (Clarke JA agreeing); Hayden v Teplitzky (1997)74 FCR 7 at 12; 154 ALR 497 at 502 204 See JC Techforce Pty Ltd v Pearce (1996) 138 ALR 522 at 529

per Lindgren J.

per Branson J.

205 See Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 at [24]–[36] 206 [2001] All ER (D) 338 (Oct); [2001] EWCA Civ 1570 at [5]

per Mahoney AP

per Gillard AJA.

.

10.88 The court’s reluctance in wielding the discharge sanction reflects the inadequacy of discharge as a remedy for nondisclosure. If it emerges at final hearing that there are no good reasons for maintaining the injunction, then clearly discharge is not a sanction at all because the injunction should be discharged in any event. A party who obtains an injunction by suppressing information that would have otherwise led to a rejection of the application is hardly likely to be deterred by the fact that a discharge may follow. If there are good reasons for maintaining the injunction, discharge might constitute a wholly disproportionate sanction. But even if the risk of harm is not great, it is by no means a tenable position to enable the respondent to infringe the applicant’s rights, simply because the latter has failed to fulfil its procedural obligation.

10.89 The court thus has other measures at its disposal. The applicant may be ordered to pay the respondent compensation upon the undertaking as to damages. Solicitors and counsel in breach of the duty of disclosure may also be ordered to pay the respondent’s costs personally on a party/party or indemnity basis.207 The knowing suppression of facts may lead to committal for contempt. However, if a respondent brings an application for the setting aside of an ex parte interim injunction on the basis of material non-disclosure, it will still be possible for a court hearing that application to discharge the injunction, consider the question afresh, and grant a new injunction on different terms.208

207 For example, Orpen v Tarantello [2009] VSC 143

per Beach J.

208 For example, Baycolt Investments Pty Ltd v Raynard Pty Ltd [2002] WASC 11 v Tebb [2006]NSWSC 1415 at [15]–[17]

Discharge, variation and appeals

per Palmer J.

per Pullin J. See too Harrem Pty Ltd

Page 45 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Discharge and variation

10.90 The court may direct that an interim injunction should stand until final judgment or a specified date. Applicants, respondents and persons directly affected can generally apply to vary or revoke an ex parte interlocutory injunction if the circumstances that gave rise to the order have changed.

Page 389

Interlocutory injunctions pending appeals

10.91 Injunctions can be issued in the court’s original jurisdiction to preserve the subject matter of an appeal pending the final determination of that appeal. For example, if the first instance decision concerned the question of who had right title to real property, the unsuccessful party may seek an interlocutory injunction prohibiting the respondent from selling the property until the final determination of the appeal. The decision whether to grant an interlocutory injunction pending an appeal will be informed by the considerations relevant to a grant of interlocutory injunctions generally, and considerations relevant to the grant of a stay of judgment pending appeal.209

209 Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13]

per French J.

10.92 The appellant does not have to demonstrate special or exceptional circumstances before an interlocutory injunction will be granted.210 However, the nature of the balance of convenience exercise will be slightly different. Factors to be weighed in the balance as outlined in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) 211 by French J are: (a) the strength of the appellant’s appeal (the fact there has been an adverse judgment at first instance will influence the court’s assessment of the strength of the appellant’s case, and there is no injustice in refusing an interlocutory injunction sought in aid of an appeal that is bound to fail212); (b) whether the appeal may be nugatory if the restraint is not granted; and (c) that the successful party will be impeded in the exercise of its judicially vindicated right. It may also be relevant to consider whether a grant of interim relief would nonetheless fail to preserve the status quo until determination of the appeal.213

210 Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13] 211 [2000] FCA 87 at [13]–[15]

per French J.

.

212 Forest Marsh Pty Ltd v Pleash (No 2) [2011] FCA 570 at [35]

per Nicholas J.

213 Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079 at [89]

Appeal from a grant or refusal of an interlocutory injunction

per Jacobson J.

Page 46 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.93 In some jurisdictions, such as in the Federal Court, a grant of leave is required to appeal from a decision to grant or refuse an interlocutory injunction.214 Leave to appeal is more readily granted from an interlocutory decision if it determines a substantive right, as opposed to determining a matter of practice and procedure. It is well established that a decision to grant or refuse an application for an interlocutory injunction is a matter of practice and procedure.215 However, various factors may make a grant of leave attractive in cases involving interlocutory injunctive relief; for instance, if the matter involves a point of principle, or if the grant or refusal of an

Page 390 interlocutory injunction effectively finally disposed of the matter.216 In the latter case, a prima facie case exists for the grant of leave to appeal.217

214 See Federal Court of Australia Act 1976 (Cth) s 24(1A). 215 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176–7; [1981] HCA 39 per Gibbs CJ, Aickin, Wilson and Brennan JJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [53]

per Hayne and Gummow JJ.

216 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [25]–[37] and Yates JJ.

per Dowsett, Foster

217 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [31]–[32] and Yates JJ.

per Dowsett, Foster

10.94 If leave is granted, the decision appealed from can only be disturbed for error of the kind described in House v The King .218 The High Court has also indicated that, in appeals from a discretionary decision at first instance, there is a strong presumption in favour of the correctness of the decision appealed from.219 An appellate court will generally affirm a decision to grant an interlocutory injunction unless satisfied that the decision below was ‘clearly wrong’.220

218 (1936) 55 CLR 499 at 504–5

per Dixon, Evatt and McTiernan JJ.

219 Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627; [1953] HCA 25 per Kitto J. 220 Bridge Property Investments Pty Ltd v Garland Lot 3 Pty Ltd [2014] NSWCA 82 at [18]

Freezing orders General principles

10.95

.

Page 47 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Other than examinations by liquidators and trustees-in-bankruptcy, there are no formal means of discovering the defendants’ creditworthiness in advance of commencing proceedings. However, plaintiffs do not normally bring proceedings unless they are confident that the defendant has sufficient resources with which to satisfy a judgment. Having commenced proceedings, the plaintiff runs a risk that by the time it comes to enforce a favourable monetary judgment, the defendant will be left with no means of satisfying the judgment, and the plaintiff ’s investment in litigation would have been wasted — this is especially true if the plaintiff is also unable to recover its costs. As a general rule, a plaintiff cannot obtain an injunction to restrain a defendant from parting with assets before trial.221 However, a plaintiff222 can seek what is known as a freezing order.223 A freezing order enables a plaintiff, in certain circumstances, to obtain protection from the risk that the defendant would dissipate its assets pending trial. A freezing order is directed invariably to the defendant and anyone with control over the defendant’s assets, ordering them to refrain from disposing of those assets or dealing with them in any way, except as directed by the court.

221 Lister & Co v Stubbs (1890) 45 Ch D 1

.

222 An application for a freezing order is usually (but not always) brought by the plaintiff against the defendant. Where possible, this section uses the language of ‘plaintiff ’ and ‘defendant’ for convenience. 223 Earlier decisions often refer to the remedy using terms such as ‘Mareva orders’, ‘Mareva injunctions’, ‘Mareva relief ’, ‘asset preservation orders’ and ‘freezing injunctions’.

10.96 In 1975, the English Court of Appeal developed the Mareva injunction for dealing with a particular type of risk of unenforceability.224 The first two cases in which the Mareva jurisdiction was recognised involved claims for damages against foreign

Page 391 defendants (incidentally, both involving charterers who had hired ships) who were likely to remove their assets from the jurisdiction of the English court in order to defeat judgment as soon as they learned of the proceedings against them.225 Both cases involved ex parte applications for injunctive relief. It was held in both cases that the court had the power to order the foreign defendant to refrain from dealing with its assets pending litigation in order to prevent it from frustrating the court’s processes by dissipating or hiding assets.226 Freezing orders, it was later explained, were the law’s response to: … the ‘ploy’ of a defendant to make himself ‘judgment proof’ by taking steps to ensure that there are no available or traceable assets on the day of judgment; not as a result of using the assets in the ordinary course of business or for living expenses, but to avoid execution by spiriting his assets away in the interim.227

224 Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep 509 225 Nippon Yusen Kaisha v Karageorgis [1975] 3 All ER 282; [1975] 1 WLR 1093 International Bulkcarriers SA [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep 509 jurisdiction for making these orders, the jurisdiction is largely judge-made. 226 See also A v C [1980] 2 All ER 347; [1980] 2 Lloyd’s Rep 200 at 202 ER 806 at 808; [1981] 1 WLR 894 WLR 487

at 489

at 897

.

; Mareva Compania Naviera SA v . Although the courts invoked statutory

; Searose Ltd v Seatrain (UK) Ltd [1981] 1 All

; Jet West Ltd v Haddican [1992] 2 All ER 545 at 548; [1992] 1

; Ghoth v Ghoth [1992] 2 All ER 920 at 922

.

Page 48 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 227 Z Ltd v A-Z [1982] QB 558

at 584

; [1982] 1 All ER 556 at 571

.

10.97 The history of how Australian courts first responded to the developing Mareva jurisdiction in England is outlined in other helpful texts and not considered in detail in this chapter.228 The first decision in which the High Court accepted the jurisdiction to grant such relief was Jackson v Sterling Industries Ltd ,229 and the first decision in which the High Court considered the juridical foundation of the Mareva jurisdiction was Cardile v LED Builders Pty Ltd (Cardile v LED) .230

228 See, for example, P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, Ch 2. 229 (1987) 162 CLR 612; [1987] HCA 23 230 (1999) 198 CLR 380; [1999] HCA 18

. .

10.98 The jurisdiction of a state Supreme Court to grant a freezing order lies generally in that court’s inherent power ‘to prevent abuse or frustration of its processes in relation to matters coming within its jurisdiction’.231 The High Court has recognised that a freezing order is ‘the paradigm example of an order to prevent frustration of a court’s process’. 232 In the Federal Court, the power has been sourced in both the implied powers of the court to make interlocutory orders as it thinks appropriate, as well as in s 23 of the Federal Court Act.233 Specific powers are set out expressly in Pt 7 Div 7.4 of the Federal Court Rules. There are also statutory powers that can be relied

Page 392 upon to similar effect, such as s 137F of the Competition and Consumer Act 2010 (Cth), s 12GN of the Australian Securities and Investments Commission Act 2001 (Cth) and s 1323 of the Corporations Act 2001 (Cth). Each jurisdiction has rules governing freezing orders (see 10.107 below).

231 See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623; [1987] HCA 23 per Deane J (with Mason CJ, Wilson, Brennan and Dawson JJ agreeing); PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 89 ALJR 975; [2015] HCA 36 at[43]

per French CJ, Kiefel, Bell, Gageler and Gordon JJ.

232 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32; [1998] HCA 30 at [35]

; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 400

(plurality); [1999] HCA 18 at [41].

233 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 616,618 per Wilson and Dawson JJ, 623–4 per Deane J (with Mason CJ, Wilson, Brennan and Dawson JJ agreeing); [1987] HCA 23.

Purpose of the remedy

10.99

Page 49 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments It must be stressed that a freezing order restrains the defendant from dealing with assets which are indisputably its own, and to which the plaintiff makes no claim of right. Such a serious interference with the defendant’s property requires cogent justification. The plurality in Cardile v LED234 advanced two related concepts as part of the rationale for this kind of relief. The first was that it had become increasingly easy to transfer assets nationally and internationally, and the court needed to adapt the remedies at its disposal to accommodate this reality. The second was that such orders protect and defend the court’s processes, as well as the interests of the potential judgment creditor, from abuse by the defendant. Failure to do so would render the judicial process inconsequential, and the rule of law would be defeated.

234 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [115]–[116]

.

10.100 A freezing order is not designed to give the plaintiff a proprietary interest in the assets the subject of the order, security,235 or a means of circumventing insolvency laws.236 It is not a mode of converting a would-be creditor into a secured creditor before a dispute is determined.237 Despite formerly being known as a Mareva injunction, a freezing order is not actually an injunction.238 Although a freezing order resembles an interim injunction, in that it restrains the defendant for the duration of the proceedings, it is fundamentally different from an interim injunction. Interim injunctions and freezing orders have a different basis in principle and doctrine.239 An interim injunction protects the very rights in dispute in the action, and tends to track the substantive cause of action. For instance, a plaintiff who brings an action to recover stolen property will apply for an interim injunction to ensure that its property does not disappear pending litigation. That plaintiff is effectively asking the court to give it, now, at least some of the remedy to which it would become entitled if it makes out its case. By contrast, in the case of a Mareva injunction, ‘the right to the injunction and the ultimate right to damages or whatever else is claimed in the action are wholly

Page 393 disconnected’.240 The relief sought bears no relation to the relief that is sought to be granted at trial, and ‘does not prevent a defendant from doing something which if done by him would be a wrong attracting a remedy’.241 A freezing order enjoins the defendant from dealing with assets to which the plaintiff makes no claim of right.242 In this sense, it is ‘a drastic remedy which should not be granted lightly’.243 A party contemplating an application for a freezing order should give serious consideration to whether it should be seeking an interim injunction instead.244

235 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625; [1987] HCA 23 Brennan and Dawson JJ agreeing).

per Deane J (with Mason CJ, Wilson,

236 Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545 at 558 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618; [1987] HCA 23

per Wilson and Dawson JJ.

237 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 89 ALJR 975 at 977; [2015] HCA 36 Nettle JJ. 238 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394–5 Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [94]

per Young J;

per Keane and

(plurality); [1999] HCA 18; ABC v Lenah Game Meats

per Gummow and Hayne JJ.

239 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [45] Gummow and Callinan JJ. 240 Mercedes-Benz AG v Leiduck [1996] AC 284

at 303

; [1995] 3 All ER 929 at 942

.

241 Mercedes-Benz AG v Leiduck [1996] AC 284

at 306

; [1995] 3 All ER 929 at 944

.

per Gaudron,

Page 50 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 242 See generally A Zuckerman, ‘Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies’ (1993) 109 Law Quarterly Review 432. 243 Frigo v Culhaci [1998] NSWCA 88 at 10 per Mason P, Sheller JA and Sheppard AJA,cited with approval in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [51] 244 Mercedes-Benz AG v Leiduck [1996] AC 284

at 300

(plurality).

; [1995] 3 All ER 929 at 939

.

10.101 The juridical difference between an interim proprietary injunction and a freezing order has far-reaching consequences. Far more exacting measures can be put in place where a plaintiff lays a claim of right to disputed assets, as compared to when a plaintiff makes no such claim, but merely seeks to freeze assets so that they may be available to satisfy a judgment relating to matters entirely unconnected with the frozen assets. For example, a freezing order over assets that are not the subject of the proceedings is not meant to interfere with the defendant’s ability to satisfy existing debts or meet normal living expenses. Therefore, a defendant would normally be allowed to meet its prior liabilities and ordinary living expenses out of frozen funds, even to the point of exhausting them, provided of course that no other funds are available to it. Where, however, the plaintiff seeks an interim injunction to protect the integrity of assets alleged to belong to the plaintiff, a defendant would not normally be allowed to meet liabilities out of such funds.

10.102 A freezing order is an in personam order, which does not affect rights to the frozen assets and does not give the plaintiff priority over other creditors with respect to the frozen assets. In a practical sense, ‘it operates as a very tight “negative pledge” species of security over property’.245 As Mason P, Sheller JA and Sheppard AJA in Frigo v Culhaci explained, it: … is an interlocutory order which, if granted, imposes a severe restriction upon a defendant’s right to deal with his or her assets. It is granted at the suit of a plaintiff whose status as a creditor is in dispute and who need not be a secured creditor. Its purpose is to preserve the status quo, not to change it in favour of the plaintiff.246

Freezing orders facilitate the process of execution or enforcement only if and when a monetary judgment has been obtained.247 Thus, even where a sum of money is paid into a special account in lieu of a freezing order, on the undertaking not to encumber it, the plaintiff obtains no right in respect of the funds. And, as Jonathan Parker LJ

Page 394 explained,‘a freezing order — without more — does not impose an obligation on the part of the respondent to satisfy any judgment debt out of those assets’.248

245 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 403; [1999] HCA 18 at [50]

(plurality).

246 Frigo v Culhaci [1998] NSWCA 88 at 10, cited with approval in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [51]

(plurality).

247 Mercedes-Benz AG v Leiduck [1996] AC 284

at 306

; [1995] 3 All ER 929 at 945

248 Flightline Ltd v Edwards [2003] EWCA Civ 63; [2003] 1 WLR 1200

Applications for a freezing order — an overview

.

.

Page 51 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.103 Applications for freezing orders are, in the first instance, invariably made ex parte on an urgent basis to deny the defendant an opportunity to dispose of its assets before an order is made. ‘The whole point … is that the plaintiff proceeds by stealth … the defendant finds that his bank account has been blocked before he has any idea of what is going to happen.’249 General principles in relation to ex parte applications were considered earlier in this chapter at 10.80–10.89 above. Applications for freezing orders are normally made before the commencement of the proceedings.

249 Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645

at 653

per Mustill J.

10.104 The relevant rules and practice note of the relevant court provide guidance as to the procedure to be followed and the usual terms of such an order.250 An application is usually supported by affidavit evidence that addresses matters including but not necessarily limited to: (a) information about the judgment obtained, or information about the basis for and amount of the intended claim that may lead to a prospective judgment. The value must be identified with some precision so as not to unnecessarily tie up the defendant’s assets and property;251 (b) any defences or other matters in its favour that the defendant has raised; (c) the nature and value (to the extent it is known) of the defendant’s known and suspected assets;252 (d) why the deponent believes there is a danger the judgment or prospective judgment may be unsatisfied;253 and (e) factors going to the balance of convenience, which are potentially quite broadranging but may include, for example, any third parties that may be affected by a freezing order. The plaintiff must give appropriate undertakings to the court, which will almost always include an undertaking to pay any damages which the defendant or any other person may sustain.254 Non-parties who incur expense as a result of compliance with a freezing order, or as a result of a successful application to the court for variation of the freezing order, are generally entitled to costs. If, due to a change in circumstances,a freezing order no longer serves its purpose, the plaintiff must promptly apply for its variation or discharge.255

Page 395

250 See, for example, in the Federal Court, Freezing Orders Practice Note (GPN-FRZG) (15 September 2016). 251 Deputy Commissioner v Gashi (2010) 27 VR 127; [2010] VSC 120 at [11] 252 A Ltd v A-Z [1982] QB 558

at 588–9

per Bell J.

per Kerr LJ.

253 See P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, p 216 [6.33], which includes a fulsome list of specific matters to be considered when preparing evidence as to danger of dissipation of assets. 254 Frigo v Culhaci [1998] NSWCA 88 at 12–13 per Mason P, Sheller JA and Sheppard AJA. 255 Commercial Bank of the Near East plc v A B C & D [1989] 2 Lloyd’s Rep 319 at 323 per Saville J.

Page 52 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.105 The relevant practice note will usually include an example form of ex parte freezing orders and form of undertakings that the plaintiff can use or modify as their application requires. A freezing order may be directed to all of the defendant’s assets or only some of them (for example, a specific, identified bank account up to a certain amount). Additional complexity is introduced if the defendant holds the asset as a bare trustee or nominee for a third party with no beneficial interest.256 A freezing order may also go beyond the defendant’s present assets and embrace any assets obtained in future, if the defendant’s liability may exceed the value of the assets presently held.

256 Federal Bank of the Middle East v Hadkinson [2000] 2 All ER 395; [2000] 1 WLR 1695

; Australian Securities

and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 at [137]–[140] J; Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636

per White

.

10.106 Once obtained, a freezing order must be served as soon as possible together with the evidence filed in support of the application and any orders made by the court. An ex parte freezing order will contain a return date for a further hearing as soon as practicable at which the defendant, or any other person directly affected by the order (such as a bank affected by a freezing order that operates on an account held by one of its clients), can appear and seek to vary or discharge the orders made. The order should also reserve liberty for the defendant to apply on short notice, in case the return date causes prejudice to the defendant in the meantime. At each listing, the court must ensure that the reach of the freezing order remains no greater than that which is necessary to protect the processes of the court, and that the order is not an instrument of unfair oppression to the party in respect of whose assets the order has been made.257 The court can vary or qualify a freezing order if the defendant satisfies the court that the assets are required for a purpose that does not conflict with the policy underlying the freezing order.258 A plaintiff’s failure to prosecute the substantive proceedings promptly may lead to discharge of the freezing order.259

257 Commissioner of Taxation v Karas [2012] VSC 68 at [18]

per Kaye J.

258 Australian Mortgage and Financial Company as trustee of the Melnikoff Family Trust v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust [2014] NSWSC 996 at [41] 259 Bird v McComb (No 3) [2011] FCA 697 at [29]

per Black J and the authorities there cited.

per Collier J and the authorities there cited.

Conditions for obtaining a freezing order

10.107 A freezing order is a discretionary remedy. The threshold conditions for a freezing order are outlined in the different rules of court.260 The rules regulating the making of a freezing order were promulgated by a committee on the Harmonisation of Court Rules established by the Council of Chief Justices of Australia and New Zealand in 2004, and have been adopted in a generally harmonised form, since about 2006, in the various states and territories and in the Federal Court. Although the wording is not identical in each jurisdiction, the respective rules generally provide

Page 53 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Page 396 that the court may grant an order restraining a party from removing assets from the jurisdiction or from dealing with any assets (whether located within the jurisdiction or not) if the plaintiff has demonstrated that: (a)

judgment has been given in its favour, or it has ‘a good arguable case’ in support of its substantive claim; and

(b)

there is a danger that the judgment or a prospective judgment may be wholly or partially unsatisfied if a freezing order is not granted because the assets of the judgment debtor are disposed of, dealt with, or diminished in value, thereby defeating or frustrating the plaintiff ’s claim.

Each criterion is considered in more detail below. Satisfaction of these criteria does not mean a freezing order will automatically follow. Rather, it is then a discretionary decision for the court, taking any other matters into account, and whether the overall balance of convenience and interests of justice favour the making of the freezing order.

260 See Federal Court Rules 2011 (Cth) rr 7.31–7.38; Court Procedures Rules 2006 (ACT) rr 740–745; Uniform Civil Procedure Rules 2005 (NSW) rr 25.10–25.17; Supreme Court Rules (NT) r 37A; Uniform Civil Procedure Rules 1999 (Qld) rr 260–260G; Supreme Court Civil Rules 2006 (SA) r 247; Supreme Court Rules 2000 (Tas) rr 937A–937H; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 37A; Rules of the Supreme Court 1971 (WA) O 52A.

A ‘good arguable case’

10.108 Given that the purpose of a freezing order is to protect the plaintiff from the risk that a judgment in its favour would remain unsatisfied, the first thing that the plaintiff has to show under the relevant rules is that there is reason to suppose that it could obtain judgment against the defendant. The relevant criterion is usually phrased as ‘a good arguable case’. A ‘good arguable case’ has been treated as meaning a reasonably arguable case on legal and factual matters.261 It is less exacting than a strong prima facie case, in that the plaintiff does not have to show that it is more likely than not to recover.262 It has been said to be met by a case ‘which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success’.263 Unless the court is satisfied that the plaintiff has a claim deserving serious consideration, it must conclude that the plaintiff has no need for protection from the risk of an unenforceable judgment.

261 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [68]

(plurality).

262 See Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 404

per Mustill J; Westpac Banking Corp v McArthur [2007] NSWSC 1347 at [22]

per Barrett J.

263 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 404

per Mustill J; Samimi v Seyedabadi [2013] NSWCA 279 at [69]–[70]

per McColl JA.

Danger judgment will be unsatisfied, or risk of dissipation

10.109 The plaintiff must show that the defendant has assets within the jurisdiction or elsewhere. The key requirement is to then demonstrate what most rules now refer to as a ‘danger’ (though there are also cases referring to the same concept as a ‘real risk’, or a ‘sufficient likelihood of risk’264) of dissipation or disposal of assets. However named, that risk or danger of dissipation must be ‘palpable and demonstrated by evidence’, not merely ‘a suspicion in the mind of an overly anxious plaintiff ’.265

Page 54 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Page 397 The plaintiff must prove that a freezing order is justified.266 This test is not as exacting as a balance of probabilities test. In Patterson v BTR Engineering (Aust) Ltd ,267 Gleeson CJ explained that such a test would be, among other problems, too inflexible, because it was not difficult to imagine situations in which justice and equity would require the granting of a freezing order, even though the risk of dissipation was less probable than not.

264 See, for example, the cases compiled in Curtis v NID Pty Ltd [2010] FCA 1072 at [9]–[10] 265 Bayley and Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746 at [34] 266 Victoria University of Technology v Wilson [2003] VSC 299 at [36] Steel Ltd (2013) NSWLR 141; [2013] NSWCA 102 at [59] 267 (1989) 18 NSWLR 319 at 325

per Edmonds J.

per Foster J.

per Redlich J; Severstal Export GmbH v Bhushan

per Bathurst CJ (Beazley P and Barrett JA agreeing).

.

10.110 In early English cases, the court applied a more demanding test, requiring the plaintiff to show a serious risk that the defendant would dispose of its assets with the aim, and not just the effect, of evading judgment.268 But it soon became apparent that it was unrealistic to expect that plaintiffs with just cause would always be able to establish that the defendant intended to dissipate assets to defeat judgment. This is not surprising — it would be difficult to establish an intention to defeat a judgment unless the defendant specifically advanced the threat of taking such a course.269 The test was then relaxed to ensure that the freezing order remained an effective instrument against fraud and evasion. It is not presently necessary to demonstrate a positive intention by the party against whom the order was sought to frustrate a prospective judgment.270 The court is concerned with the effect of dissipation, rather than the purpose of dissipation.271

268 For example, Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509. Cf Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 406 per Mustill J, 419 per Kerr LJ; CBS United Kingdom Ltd v Lambert [1983] Ch 37 Haiti v Duvalier [1990] 1 QB 202

at 216–7

; [1989] 1 All ER 456 at 466

JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394

; Republic of

.

269 Re FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2016] NSWSC 625 at [5] 270 NAB v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277; [1990] HCA 10

at 44

per Black J.

per Mason CJ, Brennan and Deane

(plurality); [1999] HCA 18.

271 Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49 at 53 authorities there cited.

per Young CJ and the

10.111 Seeing that it is possible to obtain a freezing order without proof of a risk of intentional evasion, it is all the more important to exercise vigilance against unwarranted applications. It should be remembered that it is one thing to restrain a defendant from dealing with its assets for fear that it would hide them in order to defeat creditors, but quite another thing to restrain a defendant to ensure its assets are protected from commercial risks or spending decisions that might reduce their value as a potential means of satisfying a judgment. The jurisdiction is not

Page 55 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments intended to provide a plaintiff with security for its claim — not even when its chances of success are high, and not even if the defendant could easily provide security.272

272 Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 419

per Kerr LJ.

10.112 A plaintiff will fall short of proving a risk of dissipation if it merely asserts (rather than establishes on the evidence) that a defendant is likely to put assets beyond

Page 398 the plaintiff ’s reach.273 Moreover, mere proof that the company against whom the order is sought is incorporated abroad, accompanied by the allegation that there are no reachable assets in the local jurisdiction apart from those which it is sought to enjoin, or that those assets are moveable, will not be enough.274 Nor will a mere refusal by the defendant’s solicitors to answer requests for an undertaking or other assurances275 (though such refusal may be a relevant matter for the court to take into account276).

273 Frigo v Culhaci [1998] NSWCA 88 at 16 per Mason P, Sheller JA and Sheppard AJA. 274 See Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [11]–[12] 275 Lake v Crawford (No 2) [2010] NSWSC 419 at [24] Ltd [2012] FCA 746

per Kenny J.

per Harrison J; Bayley & Associates Pty Ltd v DBR Australia Pty

per Foster J.

276 Tomasetti v Brailey [2012] NSWCA 6 at 18

per Campbell J.

10.113 Rather, there must be facts from which ‘a prudent, sensible commercial’ person can ‘properly infer a danger of default if assets are removed from the jurisdiction’.277 The court can take into account the prior conduct of the defendant, the value of the actual or prospective judgment, and the assets or income available to the defendant to satisfy that prospective judgment.278 Other factors may include the size, origins, business domicile, length of time in business, and location of known assets of a defendant company, including the circumstances in which the dispute has arisen.279 If nothing can be discovered about the defendant, that in itself may justify a freezing order.280 Although the risk of dissipation will usually be established by evidence, in some cases it might be inferred from the plaintiff’s cause of action — for instance, if the case against the defendant is one of serious dishonesty involving diversion of money from its proper channels.281

277 Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645

at 671

Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [12] 278 Deputy Commissioner v Gashi (2010) 27 VR 127; [2010] VSC 120 at [33]

per Lawton LJ, as cited in Deputy per Kenny J.

per Bell J.

Page 56 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 279 Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645

at 672

Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [12] 280 Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645

at 672

Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [12]

per Lawton LJ, as cited in Deputy per Kenny J. per Lawton LJ, as cited in Deputy per Kenny J.

281 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 391; BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 at [15] FCA 1609 at [26]–[27]

per Le Miere J; contra Media World Communications Ltd (admin appt’d) v Clark [2004]

per Goldberg J. See too Victoria University of Technology v Wilson [2003] VSC 299 at [33]

per Redlich J.

10.114 The mere fact that the defendant is a foreign corporation that removes assets from the jurisdiction in the ordinary course of its business may not be enough to justify a freezing order. For example, in Reches Pty Ltd v Tadrian Ltd ,282 Lehane J declined to grant a freezing order against an Israeli corporation with very limited assets in Australia. Although the defendant would remove or deplete its sole asset in Australia in the ordinary course of business, it was a ‘major and profitable corporation with very substantial assets’, there was nothing to suggest a likelihood of default, and enforcement was possible in Israel under a reciprocal regime for the registration of judgments.

282 (1998) 85 FCR 514

.

10.115 A freezing order may be obtained after judgment in support of the judgment award or a costs order. ‘Where you have someone who is already subject to a money

Page 399 judgment, including an order for costs’, Lord Donaldson MR explained, ‘the same principle applies, namely that the courts will not allow people to set their orders at nought simply by removing assets from the jurisdiction’.283 Accordingly, a freezing order may be granted or continued in support of any judgment or order of the court for the payment of money, whether or not the exact sum payable has been quantified at the date of the order and the date at which the freezing order is sought. It is suggested that since the defendant’s liability has already been determined in such situations, the court may be satisfied by a lower risk of dissipation. After all, a freezing order in such cases would only bring forward the type of remedy which the plaintiff would be entitled to obtain by execution of judgment.

283 Jet West Ltd v Haddican [1992] 2 All ER 545 at 547; [1992] 1 WLR 487

Discretionary considerations

10.116

at 489

.

Page 57 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Young CJ regarded the final stage of the process as ‘weighing the strength of the plaintiff ’s case for an injunction against the potential harm to the defendant’.284 Le Miere J has stated that if the prerequisites are made out, subject to any other discretionary factors: … the balance of convenience will almost inevitably lie in favour of the grant of the order, because the potential damage to the plaintiff of being unable to satisfy the judgment will outweigh the inconvenience to the defendant of being subjected to a properly drawn freezing order.285

Factors to be considered in the balance of convenience may include (but are not limited to): (a) potential hardship to the defendant or prospective defendant; (b) the rights of third parties who might be affected by the grant of the orders; (c) reputational damage to the defendant;286 (d) whether the party seeking the relief is a regulator; (e) whether the plaintiff’s undertaking as to damages is inadequate;287 (f)

the absence of any undertaking as to damages;288

(g) whether the plaintiff already has effective security for its claim; and (h) whether there has been delay in the bringing of the application or a lack of candour in the materials placed before the court.289

Page 400 There are specific discretionary factors that may also arise when a freezing order is sought against third parties who are not parties to the underlying proceedings.290 As explained at 10.24 above in relation to interim injunctions, if the strength of the arguable case diminishes, the balance of convenience must be greater, and vice versa.291

284 Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49 at 54 285 BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 at [22] there cited. 286 Pearce v Waterhouse [1986] VR 603 at 607–8

per Young CJ. per Le Miere J and the cases

per Vincent J.

287 It is possible for a freezing order to be granted even though the applicant’s undertaking as to damages is inadequate and the applicant cannot provide security: see Re FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2016] NSWSC 625 at [28]

per Black J and the authorities there cited.

288 For instance, the ACCC may not be required to provide an undertaking when seeking a freezing order pursuant to s 137F of the Competition and Consumer Act 2010 (Cth). See Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd [2016] FCA 976 at [25],[36],[43]–[59]

per Beach J.

289 Deputy Commissioner v Gashi (2010) 27 VR 127; [2010] VSC 120 at [11] 300

per Bell J, citing Zhen v Mo [2008] VSC

per Forrest J.

290 See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [53]

(plurality).

291 Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49 at 54–5

Ancillary orders

10.117

per Young CJ.

Page 58 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments The jurisdictional basis of making ancillary orders in support of freezing orders was clarified after Cardile v LED defined more precisely the source of the jurisdiction to make freezing orders themselves. As Austin J summarised in Bax Global Australia Pty Ltd v Evans :292 Since the source of the jurisdiction to make Mareva orders is the Court’s inherent power to prevent abuse of its processes and stultification of the administration of justice by the removal of assets from the plaintiff ’s reach,the Court must also have the power to order disclosure of the nature and location of particular assets or assets of a class so that the Mareva relief is effective and not oppressive. As Robert Goff J pointed out in A v C [1980] 2 All ER 347 at 351 , if the plaintiff does not know the number and location of (say) the defendant’s bank accounts, a Mareva order in respect of bank accounts generally could be oppressive both to the defendant and to the bankers who are required to act in accordance with it, especially where there is more than one account or several defendants. Without information about the nature and location of the defendant’s assets, the plaintiff may be unable to make the risk assessment which is necessary in order to give the undertaking as to damages, or if the undertaking is given, it may lead to an unexpected exposure. Robert Goff J concluded, as do I, that considerations such as these point to the conclusion that in the special cases where the court decides to make Mareva orders,it may make such disclosure orders as are necessary to ensure that the Mareva jurisdiction is properly and effectively exercised. While the power to do so does not depend upon the statutory discovery and interrogatory procedures, Cardile indicates (as I have mentioned) that these procedures should be considered as alternative methods of compelling disclosure, where they are available.

292 (1999) 47 NSWLR 538; [1999] NSWSC 815 at [23]

.

Disclosure orders

10.118 Ancillary disclosure orders include orders that the defendant disclose the nature, value and location of its assets (for example, by way of affidavit), orders for cross-examination of the deponents of those affidavits (such as the defendant or his or her accountant),293 and orders that the defendant direct its bank to disclose information about assets. These orders are important because, as Justice Biscoe explains in his book, disclosure in relation to the defendant’s assets:

Page 401   (a)

makes it more difficult for a defendant to surreptitiously disobey the freezing order;

(b)

enables notice to be given to relevant third parties (such as banks) who are made liable to a finding of contempt if they assist the defendant to breach the order;

(c)

enables the order to be framed by reference to specific assets rather than a maximum sum order, which minimises oppression to the defendant and unnecessary risk to the plaintiff under its undertaking as to damages; and

(d)

assists the plaintiff to know whether to apply to continue the freezing order (and extend its risk on the undertaking in the process).294

The standard form of orders in many jurisdictions provide for the making of asset disclosure orders at the ex parte hearing. Whether this practice affords adequate protection to defendants is open to question, as it is difficult to discern the reason why an asset disclosure order is so urgent that it should be obtained ex parte.

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293 For consideration of the principles as to when cross-examination might be appropriate, and the limits on any crossexamination that might be ordered, see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1587 at [23]–[28]

per Moore J. Leave to appeal from the cross-examination order was refused: Sharman Networks

Ltd v Universal Music Australia Pty Ltd [2006] FCA 1

per Conti J.

294 P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, p 78 [3.11]–[3.14].

10.119 Disclosure orders in this context go far beyond ordinary disclosure orders, since they invariably require the defendant to disclose information which is not connected with the underlying issues in dispute, and which is not otherwise disclosable in the proceedings. An order requiring a defendant to disclose all of its assets, their location and their value, is a serious incursion into the defendant’s private affairs. The court must therefore take good care to ensure that such incursion is justified and proportionate. There is, consequently, a need to strike a balance between the possible prejudice to the defendant, if it is required to disclose assets which it is later held it should not have had to disclose, and the possible prejudice to the plaintiff, if the defendant is not required to disclose assets which it is later held it should have had to disclose. As Justice Biscoe has explained:295 An applicant may be prejudiced if the ex parte freezing order has not been capable of being policed from the outset by an ex parte disclosure order. On the other hand, if the ex parte freezing order is subsequently set aside, the respondent may be prejudiced by the disclosure of assets which it should not have been required to disclose. The balance to be struck rests in the court urgently accommodating a hearing to decide whether disclosure should be made pending final determination of an application to set aside the freezing order and in not holding the respondent to be in contempt until it has at least had the opportunity to be heard on the application: Raja v Van Hoogstraten [2004] 4 All ER 793; EWCA Civ 968

.

295 P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, p 76 [3.9].

Other ancillary orders

10.120 Certain courts may make other kinds of ancillary orders that are not directed towards disclosure of information about the defendant’s assets; for example, delivery-up of particular assets,296 prohibitions on the departure from the jurisdiction,297 the

Page 402 appointment of receivers to part or all of the defendant’s assets, or even search orders. These measures are rare and more drastic than the disclosure orders referred to above and directed to the same ultimate purpose. Even in the case of delivery-up of assets, the order must make clear that the assets will be held on behalf of the defendant until after judgment or further order, and will then be re-delivered to the defendant unless made the subject of some other claim.298

Page 60 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 296 CBS United Kingdom Ltd v Lambert (1983) Ch 37 612 at 625,626; [1987] HCA 2

at 44–5

; Jackson v Sterling Industries Ltd (1987) 162 CLR

per Deane J (with Mason CJ, Wilson and Dawson JJ agreeing).

297 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [39]

(plurality).

298 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625–6; [1987] HCA 23 Wilson, Brennan and Dawson JJ agreeing).

per Deane J (with Mason CJ,

Safeguards to protect defendants

10.121 The disruptive effects of a freezing order may be serious and extensive. The defendant’s business may be starved of cash, its ability to obtain credit may be undermined, its creditors may make a run on its assets, and its reputation may be grievously injured. The law has developed a number of measures to safeguard defendants from unwarranted harm. Principal among them are the plaintiff’s obligations to make full and frank disclosure of all relevant facts at the without notice hearing and to provide an undertaking in damages. These safeguards apply to all ex parte applications for interim relief and are considered in 10.80–10.89 above. This section is devoted to specific measures designed to protect the interests of persons against whom applications for freezing orders are made. These measures share the common aim of ensuring that the operation of the freezing order is commensurate with the object of preventing improper evasion, that the interference with the defendant’s assets is proportionate, and that the jurisdiction is not abused.

Allowance for certain expenses

10.122 Given that a freezing order is only meant to prevent the improper dissipation of assets, and not to provide security for judgment, it must not prevent a defendant from having access to its own assets to the extent necessary to meet legitimate expenses, such as ordinary living expenses, business expenses bona fide and properly incurred (so that its business need not come to a complete halt), reasonable legal expenses, and dealings in the discharge of obligations properly incurred under contract before the order was made. As Barrett J explained: The aim is not to stop people spending their money. It is to stop them spending it in ways which are not legitimate, having regard to the interest of the plaintiff in ensuring that there is no untoward removal of assets from the ownership of the person against whom a judgment may in due course be entered.299

Therefore, the value of the assets covered by a freezing order should not exceed the amount the plaintiff ‘may be thought likely to recover’,300 including interest and costs.

299 Goumas v McIntosh [2002] NSWSC 713 at [23]

.

300 Frigo v Culhaci [1998] NSWCA 88 at 19 per Mason P, Sheller JA and Sheppard AJA.

10.123 An initial ex parte freezing order must make some allowance for the defendant’s ordinary living expenses.301 Of necessity, such allowance is bound to be limited, but

Page 61 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

Page 403 at a later inter partes hearing the defendant may ask the court to vary the order to allow it to use frozen assets to meet living and legal expenses and to repay existing debts. The court has considerable discretion in dealing with applications to limit the effects of a freezing order. It will normally require a defendant who seeks to use frozen funds to meet its liabilities to demonstrate, by making a wide-ranging disclosure of all of its assets, that it has no other funds with which to satisfy its needs.302 Normally, a defendant will be allowed to draw on frozen funds for payment of reasonable living expenses, legal costs (including funds needed to conduct the substantive litigation and any appeal therefrom), taxation liabilities, normal accountancy fees, compliance with statutory requirements, and the repayment of pre-injunction debts.303 Allowance for such expenses is normally capped. A defendant who wishes to exceed the sums allowed must apply for leave.

301 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 642; [1987] HCA 23 Credit of Aust Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 569 Ltd (1999) 198 CLR 380; [1999] HCA 18 v Bollands [2012] FCA 1050 at [22]

per Gaudron J; Clark Equipment

per Powell J; Cardile v LED Builders Pty

(exceptions were made by the plurality); Deputy Commissioner of Taxation

per McKerracher J.

302 Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 at [19]–[20],[24] there cited. 303 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [75]

per Black J and the authorities

(plurality).

10.124 Although a freezing order must not impede the defendant’s business lightly, it would be a mistake to suppose that a defendant would be allowed to carry on using funds in the course of business as if nothing had happened. For if the defendant can be trusted to use the funds for its business as it sees fit, what justification can there be for maintaining the injunction? All that may be said is that while there is reason for apprehending that the defendant would use its freedom to dispose of assets to evade judgment, a defendant would not be given unlimited freedom to employ the frozen funds in the course of its business.

Compensation under the undertaking in damages

10.125 Where a defendant has unjustly suffered loss as a result of a freezing order, it may apply for compensation under the plaintiff’s undertaking in damages. The general principles relevant to an application to enforce an undertaking are set out at 10.71–10.74 above. The court has discretion whether to enforce the undertaking,as well as the level of any compensation. The undertaking may be enforced where an ex parte freezing order is discharged because the defendant has satisfied the court that there has been no real risk or dissipation, or where a freezing order is set aside because the plaintiff was guilty of non-disclosure of material facts.

10.126 A defendant who was subject to a freezing order for the duration of the proceedings may make a claim under the undertaking in damages if it defeats the plaintiff on the merits and obtains judgment dismissing the claim. A victorious defendant may argue that the dismissal of the claim proves that the freezing order served no purpose and that there was never a justification for interference with its assets. If the freezing order has caused the defendant’s

Page 62 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments loss, there is a compelling argument that the defendant should be compensated. However, it is also arguable that such a defendant ought not receive any compensation, notwithstanding the dismissal

Page 404 of the claim, if it can be shown that the defendant took steps to conceal or dissipate assets to avoid the consequences of an adverse judgment. If the substantive proceeding is discontinued, and thus there is no final determination of the merits and therefore of whether the freezing orders ought to have been granted, that in itself is not enough to show that the freezing order should not have been granted.304

304 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382 at [52]

per Simmonds J.

10.127 Where a freezing order is discharged before trial, a court may postpone the application to enforce the undertaking until judgment, so that a decision may be taken on the basis of all the circumstances that emerge in the litigation. A decision to discharge a freezing order may have been correct on the facts known at the time, but facts might emerge at trial that indicate that the defendant’s conduct was such that it would be unjust to order the plaintiff to pay compensation.305 However, a postponement of the question of compensation may in practice rob the defendant of the ability to enforce the undertaking, if the pressure generated by the freezing order has forced the defendant to concede or compromise the substantive dispute. It is suggested, therefore, that absent special circumstances, or lingering doubts about the propriety of the defendant’s behaviour, a fairer practice would be to order an inquiry as to damages as soon as a freezing order is discharged.

305 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382 at [55]

per Simmonds J and the authorities there cited.

10.128 A defendant seeking to enforce an undertaking must show, before any inquiry as to damage is ordered, a prima facie case that the freezing order and any ancillary orders were a cause of its damage and that, but for those orders, it would not have suffered that damage. It is important to distinguish between the costs imposed as a result of the proceedings for the freezing order and any ancillary orders, and the damage caused as a result of the restraints made.306 It is necessary to show a ‘compensatory element’ in the damages to be awarded, which may extend to a grant of aggravated or exemplary damages in the enforcement of an undertaking.307

306 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382 at [107],[110]

per Simmonds J and the authorities there cited.

307 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 5) (2012) 92 ACSR 1; [2012] WASC 382 at [123]

Third parties

per Simmonds J and the authorities there cited.

Page 63 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.129 The respondent to an application for a freezing order is often the defendant, but may also be a third party. The seminal authority on freezing orders against third parties is Cardile v LED Builders.308 In that case, proceedings for copyright infringement were brought in respect of building plans against a company (Eagle Homes Pty Ltd) running a housing construction business. The shares in the company were held by two individuals. Before delivery of judgment in favour of the plaintiff, Eagle Homes declared and paid substantial dividends to the two shareholders who began a new

Page 405 business, using new plans. The Eagle Homes business name was transferred to the new company.After delivery of judgment, the plaintiff applied for Mareva relief against the shareholders and the new company, even though they had not been parties to the substantive proceedings. The High Court upheld the decision of the Full Court of the Federal Court that Mareva relief could be granted against the shareholders and the new company. The plaintiff had shown a reasonably arguable case for the application of s 37A of the Conveyancing Act 1919 (NSW) to the payment of dividends (that is, that they would be done with an intention to defraud creditors) and that, if paid, the new company would have insufficient funds to meet the judgment debt.

308 See consideration and acceptance of this case in England: for example, C Inc v L [2001] 2 Lloyd’s Rep 459 per Aickens J.

10.130 As summarised in PT Bayan Resources TBK v BCBC Singapore Pte Ltd ,309 the holding in Cardile v LED Builders was: … that a freezing order can be made against a third party against whom no present cause of action exists and against whom no present proceeding has commenced. It is enough that some future legal process (which might be contingent,for example, on the appointment by another court of a liquidator or a trustee in bankruptcy) may be available pursuant to which the third party may be obliged to contribute to the funds of the judgment debtor to help satisfy the judgment against the judgment debtor.

The plurality in Cardile v LED Builders310 stated that it may be appropriate to make an order against a third party in one of two types of circumstances: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including claims and expectancies, of the judgment debtor or potential judgment debtor; or (ii)some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.

309 (2015) 89 ALJR 975; [2015] HCA 36 at [47]

.

310 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 405–6; [1999] HCA 18

.

Page 64 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

‘Worldwide’ freezing orders

10.131 A freezing order is normally directed to assets located within the jurisdiction (for example, assets within Australia, or a defined part of Australia). However, if the defendant has insufficient assets in the jurisdiction, the order may be expressed to affect assets in a foreign jurisdiction or even its assets ‘worldwide’.311 As long as the court has personal jurisdiction over the defendant, it can proceed to make a ‘worldwide’ freezing order that is binding on that defendant. Such orders will operate in personam within the local jurisdiction, and are generally made subject to limitations developed by English law.312 The theory is that the personal jurisdiction over the defendant is sufficient to enliven the court’s discretion to freeze assets regardless of where they are situated, and that enforcement can occur through measures taken against the defendant personally.

Page 406

311 See an extensive list of cases in Talacko v Talacko [2009] VSC 349 at [35]

, fn 25 per Kyrou J.

312 Outlined in detail in P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, Ch 5.

10.132 As Justice Biscoe has explained in his book,313 there are generally three questions that must be answered: 1. Does the court have personal jurisdiction over the defendant? Personal jurisdiction over the defendant is enlivened if the defendant is served in Australia, submits to the jurisdiction of the court, or is properly served outside Australia. 2. If so, does the court have jurisdiction to make a freezing order? The court has jurisdiction to make a freezing order against anyone over whom the court has personal jurisdiction. 3. If so, are there difficulties of conflict of laws, comity or enforceability, or other discretionary considerations, which affect the decision whether to make the order, or the form that any order should take? Some of the considerations arising in this context include (a) whether the assets were in the jurisdiction at the time the proceedings were commenced (though this is not a precondition for the making of a freezing order over foreign assets), or indeed have ever been within the jurisdiction;314 and (b) whether judgment has already been given (in which case, an order relating to foreign assets is more likely).315

313 P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, pp 146 [5.7], 147 [5.12]. 314 Talacko v Talacko [2009] VSC 349 at [35]

per Kyrou J.

315 Babanaft International Co SA v Bassatne [1990] Ch 13 VSC 349 at [35] 130 at [55]–[56]

at 40

(CA) per Neill LJ; Talacko v Talacko [2009]

per Kyrou J; Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd (2014) 312 ALR 389; [2014] FCA per Foster J.

Actual and prospective judgments of foreign courts

Page 65 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.133 The relevant rules of court provide expressly for the making of a freezing order in aid of a judgment or prospective judgment of a foreign court. However, superior courts in Australia also have an inherent power to make such orders. In PT Bayan Resources TBK v BCBC Singapore Pte Ltd ,316 the High Court was asked to determine whether the Supreme Court of Western Australia had the power to make a freezing order in aid of a prospective judgment of a foreign court which would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth). The appellant argued that it was not within power, because the inherent power of superior courts in Australia to make a freezing order could only be for the limited purpose of protecting a cause of action pending in or at least immediately justiciable in an Australian court. The High Court rejected this argument. It confirmed317 that making a freezing order in such circumstances was within the inherent power of the court, because the order would protect a process of registration and enforcement in that court which is in prospect of being invoked.

316 (2015) 89 ALJR 975; [2015] HCA 36

.

317 (2015) 89 ALJR 975; [2015] HCA 36 at [49]–[50].

10.134 In Severstal Export GmbH v Bhushan Steel Ltd ,318 the court upheld a freezing order restraining the removal of cheques (or the proceeds thereof) from Australia in

Page 407 the context of proceedings on foot between the parties in India. The critical issue was whether there was evidence that a prospective Indian judgment would go unsatisfied if the cheques or the proceeds were removed from Australia. Bathurst CJ (Beazley P and Barrett JA agreeing) noted319 that it would not be appropriate to grant a freezing order against a foreign corporation in respect of proceedings with no connection with Australia, in circumstances where the foreign judgment was capable of enforcement in the foreign corporation’s place of residence, because to do so would be an unjustifiable use of the powers of the court and an unwanted interference in foreign proceedings.

318 (2013) 84 NSWLR 141; [2013] NSWCA 102 . Note that an application for special leave to appeal from this decision was refused: [2013] HCATrans 282 per French CJ and Gageler J. 319 (2013) 84 NSWLR 141; [2013] NSWCA 102 at [54].

10.135 Questions necessarily arise about the proof that is needed regarding the foreign proceedings if there is not yet a foreign judgment (or if the foreign proceedings have not in fact yet been commenced). As explained in 10.108 above, the applicant has to demonstrate a reasonably arguable case on legal and factual matters which, in this context, involve questions of foreign law. Proof of foreign law can be difficult to assemble quickly for the purposes of an urgent ex parte application. There are presently no rules or judicial guidelines that govern matters of proof in such situations.

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10.136 Similarly, issues also arise in respect of service outside the jurisdiction of any freezing or ancillary orders that are made. One such issue is how service ought to be effected. The rules may provide expressly for service outside of Australia of an application for a freezing order or ancillary order if any of the assets to which the order relates are within the jurisdiction of the court (see, for example, r 25.16 of the Uniform Civil Procedure Rules 2005 (NSW)), without prescribing the mode of service to be effected in respect of a foreign-based defendant. This is a more difficult issue because such service needs to be effected urgently. Service via the process contained in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965, for instance, would be too slow in the context of a freezing order.Some cases have involved orders for substituted service in respect of a foreign-based defendant.320 This is a practical approach that aims to ensure that critical matters are brought to a defendant’s urgent attention, but it is open to debate to what extent it fits within the relevant rules.

320 Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727 Rugby League Club Ltd v Williams [2008] NSWSC 822

per Young CJ in Eq; Bulldogs

per Austin J.

Freezing order pending the resolution of an appeal

10.137 Campbell JA explained in Tomasetti v Brailey 321 that English cases have accepted that the court has jurisdiction to grant, on the application of an appellant who has failed in the court below, a freezing order that will apply pending the resolution of an appeal.322 The relevant rules of court now set out the circumstances in

Page 408 which a freezing order may be granted pending the resolution of an appeal. The usual requirements for the granting of a freezing order must still be established.

321 [2012] NSWCA 6 at [13]

.

322 Ghoth v Ghoth [1992] 2 All ER 920 at 922 4 All ER 374

; Ketchum International plc v Group Public Relations Holdings Ltd [1996]

. The latter case has been followed by Hasluck J in Aspermont Ltd v Lechmere Financial Corporation

(2002) 27 WAR 1; [2002] WASCA 52

.

Non-compliance with a freezing order

10.138 Obedience to the order becomes obligatory as soon as the person concerned has been notified of the existence of the order. Non-compliance is to be met with an action in contempt.323 In other instances, a court may appoint a receiver to ensure that a freezing order already in place is complied with.324 Any person who knowingly disobeys a freezing order, whether or not they are a party to the proceedings or personally bound by the order, may be liable for contempt on the basis that they have interfered with or obstructed the course of justice.325 For instance, third parties such as banks and accountants are not usually made respondents or defendants to the freezing order, but rather, given immediate notice of the existence and terms of the order. A bank which is given notice of the order,

Page 67 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments but nonetheless allows a defendant to move funds in breach of the order, will be held in contempt. Upon receipt of notice of the order, the bank must immediately freeze the defendant’s bank account.326

323 See, for example, Miller v Eurovox Pty Ltd [2004] VSCA 211

.

324 See, for example, Cadura Investments v Rototek Pty Ltd [2004] WASC 150 at [37] 325 Baker v Paul [2013] NSWCA 426 at [19] there cited. 326 A Ltd v A-Z [1982] QB 558

at 573–4

per Pullin J.

per Meagher JA (Barrett and Gleeson JJA agreeing) and the authorities

per Lord Denning MR.

Security for costs Introduction

10.139 Security for costs is, in effect, the procedural counterpart of the freezing order jurisdiction. Just as a plaintiff is entitled to court assistance to prevent the defendant from evading judgment, so too is a defendant entitled to court assistance to prevent the plaintiff from evading a costs order.327 An order for security for costs is a protective jurisdiction. It is designed to protect a defendant against the risk that a costs order in its favour may be of no value because an unsuccessful plaintiff is impecunious or has no assets in the jurisdiction against which the order can be enforced.328 An order of security for costs directs that unless the plaintiff (or, exceptionally, the defendant) provides a security that will underwrite any liability for costs that it may incur towards the defendant, the plaintiff will not be allowed to proceed with the claim. A plaintiff is generally not protected in the same fashion because, as the party commencing the litigation, it has voluntarily assumed the risk that the defendant will be unable to meet

Page 409 any costs order or judgment against it. The current state of the law reflects the idea that the defendant does not have the same choice in deciding whether to assume such a risk once proceedings have been brought against it.

327 An application for security for costs is usually (but not always) brought by the defendant to the underlying proceedings against the plaintiff in those proceedings. An application can also be brought against a cross-claimant, for example: see Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399 at [11]–[18] per Brereton J and the authorities there cited. Where possible, the balance of this section on security for costs uses the language of ‘plaintiff ’ and ‘defendant’ for convenience. 328 Idoport v National Australia Bank (No 35) [2001] NSWSC 744 at [51]–[52] Wales [2013] NSWCA 165 at [20]

per Einstein J; see too Li v New South

per Ward JA (Macfarlan and Gleeson JJA agreeing).

10.140 On the face of it, this is an extraordinary jurisdiction. The principle of access to justice demands that citizens should have an untrammelled opportunity to pursue bona fide claims. All else being equal, it would be contrary to the principle of access to justice to order a plaintiff to provide security for costs as a condition to pursuing its claim. However, considerations of justice may support the imposition of security in two types of situations: first, where there is a real risk that the plaintiff may attempt to evade a future liability to costs, and secondly, where the plaintiff would otherwise be effectively immune from costs orders. That considerations of justice are central to the exercise

Page 68 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments of the jurisdiction is made clear by the applicable rules of court, as we shall see.

10.141 Applications for security for costs can be made pursuant to the inherent jurisdiction of superior courts, subject to the relevant rules of court.329 In the Federal Court, s 56 of the Federal Court Act330 empowers the court to order an applicant or appellant to give security for costs in any amount, and at such time, manner and form, as the court so directs. The proceeding or appeal can be dismissed if security is not given in accordance with an order made pursuant to that section. Section 56 does not distinguish between natural persons and other entities. Applications in respect of a plaintiff or appellant corporation may also be made pursuant to s 1335 of the Corporations Act, in respect of which see 10.148–10.152 below.

329 For observations about the principles informing the exercise of this inherent power, see Morris v Hanley [2000] NSWSC 957 at [10]–[14]

per Young J.

330 Which is to be read together with Federal Court Rules 2011 (Cth) r 19.01.

10.142 The first question is whether the threshold (or jurisdictional) requirement has been satisfied. If so, the second question is whether the court ought to exercise its discretion to make an order for security. Whether to order security and, if so, how much, and in what form, are discretionary matters.331 The principles governing the discretion are well established and the same in respect of each source of power.332 The discretion is to be exercised according to the particular merits and circumstances of each case without any particular predisposition.333

331 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196; [1995] FCA 76 332 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 at [29] Barrett JJA agreeing).

per Beazley J.

per Beazley JA (Meagher and

333 Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511; [1987] FCA 102

per French J.

10.143 In respect of the first question, the limited number of situations in which the jurisdiction may be enlivened in New South Wales, for example, are set out in r 42.21(1) of the Uniform Civil Procedure Rules 2005:334

Page 410

334 For the equivalent (but not always identical) provisions in other jurisdictions as to security for costs in a proceeding, see High Court Rules 2004 (Cth) r 59.01; Federal Court Rules 2011 (Cth) r 19.01; Court Procedures Rules 2006 (ACT) r 1901; Supreme Court Rules (NT) r 62.02;Uniform Civil Procedure Rules 1999 (Qld) r 671; Supreme Court Civil Rules 2006 (SA) r 194; Supreme Court Rules 2000 (Tas) r 828; Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Page 69 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments r 62.02; Rules of the Supreme Court 1971 (WA) O 25 r 1. Note that the rules as to security for costs of an appeal are set out at note 414 below.

  42.21 Security for costs (1)

If, in any proceedings, it appears to the court on the application of a defendant: (a) that a plaintiff is ordinarily resident outside Australia, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or (f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given. …

10.144 In relation to grounds (b), (c) and (f) above, r 42.21 recognises that it would be unjust to allow a plaintiff to put the defendant to the expense of litigation while the plaintiff takes measures to place itself beyond the reach of the court as far as any future costs order is concerned. However, unfairness to the defendant is not limited to evasive behaviour by a plaintiff. Unfairness can also arise from the plaintiff’s circumstances, as relevant to grounds (a), (d) and (e)of r 42.21, and as considered below. An order for security does not follow immediately if one of (a) to (f) above is satisfied. At that point, the court must consider whether to proceed to exercise its discretion in favour of a grant of security:see 10.154 below.

Security for costs against a plaintiff resident outside the jurisdiction

10.145 An order of security for costs may be made against a plaintiff ‘ordinarily resident’ outside the jurisdiction.335 The plaintiff may be a natural person ordinarily resident outside of Australia, or a corporate plaintiff domiciled somewhere other than Australia. The concept of ‘ordinarily resident’ has been said to connote ‘a place where

Page 411 in the ordinary course of a person’s life he regularly or customarily lives’, involving ‘some element of permanence’ as distinct from temporary or occasional residence.336

Page 70 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

335 Ward JA outlined the historical background to this jurisdiction in Li v New South Wales [2013] NSWCA 165 at [21]– [24]

(Macfarlan and Gleeson JJA agreeing).

336 Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198; [1992] FCA 296 too Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81 at [17]–[28] authorities there cited.

per Lockhart J. See per Weinberg J and the

10.146 If the plaintiff is resident in or domiciled in a foreign jurisdiction, the defendant may rightly complain that it is not treated on an equal footing. For while the plaintiff would be able to enforce a judgment against the defendant, the defendant may not be able to enforce a costs order against the plaintiff without commencing an action in a foreign country. The foreign plaintiff could then invoke the jurisdiction of Australian courts in relation to the substance of its claim, but evade it in relation to costs. An order for security of costs in such a situation may therefore be regarded as a measure against evasion. Put another way, the purpose of the order is: … to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement.337

337 Energy Drilling Inc v Petroz NL (1989) ATPR 40-954 at 50–422 per Gummow J.

10.147 Historically, courts gave significant weight to the fact that a plaintiff who was resident or domiciled outside of Australia had no assets in Australia, and quite readily granted applications for security against such plaintiffs, even if they were not impecunious. In PS Chellaram & Co Ltd v China Ocean Shipping Co ,338 McHugh J explained that: … for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has assets within the jurisdiction.

However, this principle is far from absolute. In a recent case, Button J stated ‘that the remarkable technological advances that have undoubtedly “shrunk” the world and made Australia far less isolated from other countries tell, in a broad way, against a readiness to make such an order [for security] as a matter of course’.339 Countervailing considerations include (a) whether the party has assets in a foreign jurisdiction against which a costs order could be enforced, and the extent of those assets;340 (b) the complexity and costs of potential enforcement proceedings — including whether there is a reciprocal right of enforcement of judgments between Australia and the foreign jurisdiction;341 (c) whether the assets might be easily moved in order

Page 412 to escape enforcement;342 and (d) whether the foreign place in issue is geographically isolated or a less developed nation, or a more significant commercial and legal centre than the place in Australia.343

Page 71 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

338 (1991) 102 ALR 321; [1991] HCA 36 at [7]

.

339 DHR International Inc v Challis; Hoffmann v Challis [2016] NSWSC 1619 at [25]

.

340 The foreign jurisdictions with which there is a reciprocal right of enforcement are stated in the Foreign Judgments Act 1991 (Cth); Foreign Judgments Regulations 1992 (Cth) Sch 2. 341 DHR International Inc v Challis; Hoffmann v Challis [2016] NSWSC 1619 at [33]

per Button J.

342 Mothership Music Pty Ltd v Flo Rida (aka Tramar Dillard) [2012] NSWCA 344 at [12] South Wales [2013] NSWCA 165 at [24]

per Meagher JA; Li v New

per Ward JA (Macfarlan and Gleeson JJA agreeing).

343 DHR International Inc v Challis; Hoffmann v Challis [2016] NSWSC 1619 at [32]

per Button J.

Security for costs against an impecunious corporation

10.148 Impecunious plaintiff corporations are singled out, for example, in r 42.21(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW)(and its equivalents) and by operation of s 1335(1) of the Corporations Act. Section 1335(1) provides that: 1335 Costs (1) Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

On the face of it, the treatment accorded to impecunious plaintiff corporations seems at odds with the treatment accorded to impecunious individual plaintiffs against whom the court has no prima facie jurisdiction to order security for costs.There is, however, a good reason for the distinction between companies and other incorporated bodies and individuals. It is not always fair that shareholders behind plaintiff companies or other incorporated bodies, or secured creditors of such corporations,should be able to enjoy the fruits of litigation without carrying the risk of irrecoverable costs. By establishing a company of limited liability, individuals are able to place an upper limit on their exposure to financial risk. Although a company has a distinct legal personality, the real beneficiaries from a company’s litigation are its shareholders, who are otherwise immune from the company’s liability to costs.344

344 See Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [54]–[55] authorities there cited.

per Einstein J and the

10.149 This may give the company an unfair advantage in litigation. Suppose that individuals set up a company as a vehicle for selling their personal services. The company has no real assets other than the income from the services it sells. The company brings an action and funds it by using profits that it has retained, or by contributions from its shareholders (which in practice comes to the same thing). If it wins, its shareholders will benefit, but if it loses the company would only be liable to the extent of its negligible assets, and the shareholders will escape all liability. In this situation, the defendant is subject to a very real disadvantage. Even if it defeats the claim, it would be left with

Page 72 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments the expense of its own defence since the company has insufficient assets to pay costs. Such a defendant may feel compelled to settle, even if the claim is unmeritorious, to avoid having to meet high costs that it will be unable to recover. The jurisdiction to order security for costs against companies is designed to remove this unfair advantage. Looked at from this point of view, the position of a

Page 413 plaintiff company is analogous to that of a nominal plaintiff who sues on behalf of another, and who may be ordered to provide security pursuant to the relevant rules of court (for example, r 42.21(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW)).

10.150 The fact that a plaintiff corporation has limited means does not necessarily indicate that it would be unable to proceed if it were required to provide security. A plaintiff corporation may be able to raise funds from those who would benefit from the fruits of the litigation, such as its shareholders, its directors or, indeed, its creditors. It is for the party claiming inability to give security, or seeking reduction of the security required, to make full disclosure of its means and prove that it cannot borrow or obtain assistance for the purpose. Where security is sought on grounds of evasion, such as concealment of the plaintiff’s address, pleas of poverty are less likely to carry weight, if only because plaintiffs with no financial resources have no need to resort to evasion in order to avoid the risk of an adverse costs order.

10.151 The discretion to award security for costs under s 1335 of the Corporations Act (set out in 10.148 above) is enlivened if, on ‘credible testimony’, the court has ‘reason to believe’ that the plaintiff corporation will be unable to pay the defendant’s costs. In FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd ,345 Pidgeon and Owen JJ traced through the predecessors to s 1335, which suggest that the provision took substantially its current form from as early as 1862. The current formulation in s 1335 has been described as ‘undemanding’.346 The primary consideration is whether an order for security ‘would work an injustice’.347 The defendant’s inability to pay is to be assessed at the time of judgment and immediately thereafter.348

345 (2000) 22 WAR 241; [2000] WASCA 69

.

346 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 at [17]

per Ward JA.

347 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 at [15] 348 Beach Petroleum NL v Johnson (1992) 7 ACSR 203; [1992] FCA 110 at [8]

per Maxwell P and Buchanan JA. per von Doussa J.

10.152 If the party making the application discharges its onus of demonstrating that the court has reason to believe the plaintiff corporation will be unable to meet the applicant’s reasonable costs, the court’s power to order security is triggered. The plaintiff corporation then bears an evidentiary burden of raising for consideration any relevant matters that speak against an order of security; for example, because such an order would stifle the litigation.349 However, the party making the application for security still bears the legal onus of proving why the order should be made.350

Page 414

Page 73 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

349 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [60]–[62]

per Einstein J; Wollongong City

Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 at [30] per Beazley JA (Meagher and Barrett JJA agreeing); Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 at [18]–[20] per Macfarlan J (Ward JA and Tobias AJA agreeing). 350 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 at [21]

per Maxwell P and Buchanan JA;

Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd (in liq) [2014] FCA 1371 at [25]–[28] per Gleeson J. For the avoidance of doubt, it is noted that these principles as to onus are not limited to applications made pursuant to s 1335.

Plaintiff suing for the benefit of some other person

10.153 Historically, security for costs could be ordered with a view to preventing an abuse of process if an insolvent company sued as a nominal plaintiff for the benefit of another.351 The fundamental principle is that the real plaintiff should not be allowed to sue through a person of straw.352 As Dowsett J explained in Forest Pty Ltd (recs and mgrs apptd) v Keen Bay Pty Ltd ,353 ‘[i]t would be contrary to the public interest and public confidence in the litigation process to allow third parties to finance a plaintiff ’s action in the certain knowledge that in the event of the action being unsuccessful,the defendant will not be able to recover his costs’. Those who seek to engage in the litigation process need to bear some of the risks of that engagement.

351 Cowell v Taylor (1885) 31 Ch D 34 [1977] 3 All ER 531 at 533

352 Sykes v Sykes (1869) LR 4 CP 645 353 (1991) 4 ACSR 107 at 123

at 38

per Bowen LJ; Pearson v Naydler [1977] 1 WLR 899

at 902

;

per Sir Robert Megarry VC. at 648

.

.

Considerations relevant to the exercise of the discretion An overview

10.154 In New South Wales, for example, if one of the recognised bases for security identified in r 42.21(1) of the Uniform Civil Procedure Rules 2005 is satisfied, r 42.21(1A) is then engaged. It outlines a non-exhaustive list of factors which may be taken into account in a decision whether to grant security for costs. It reflects several common law categories.354 It provides that: 42.21 Security for costs …

Page 74 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments ((1A)) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant: (a) the prospects of success or merits of the proceedings; (b) the genuineness of the proceedings; (c) the impecuniosity of the plaintiff; (d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct; (e) whether the plaintiff is effectively in the position of a defendant; (f) whether an order for security for costs would stifle the proceedings; (g) whether the proceedings involves a matter of public importance; (h) whether there has been an admission or payment in court; (i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant;

Page 415  

(j) the costs of the proceedings; (k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute; (l) the timing of the application for security for costs; (m) whether an order for costs made against the plaintiff would be enforceable within Australia; and (n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.

354 In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76 , Beazley J identified seven considerations by which the court should be guided on an application for security for costs. That approach has been frequently applied: see Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 Pty Ltd v Brandrill Ltd [2004] NSWSC 349

; Thalanga Copper Mines

; Sharjade v Darwinia Estate Pty Ltd [2006] NSWSC 708

.

10.155 There is no equivalent provision in the Federal Court Rules. In the Federal Court, despite the broad discretion in deciding whether to order security for costs, there are well-established common law guidelines that the court will take into account. Seven such factors were outlined by Hill J in Equity Access Ltd v Westpac Banking Corporation :355 (a)

the chances of success of the applicant;

(b)

whether the applicant’s claim is bona fide or a sham;

(c)

the quantum of risk that the applicant cannot satisfy a cost order;

Page 75 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments (d)

whether use of the power would shut out a small company from making a genuine claim against a large company (i.e. whether the power is being used oppressively);

(e)

whether the impecuniosity arises out of the acts in respect to which relief is sought;

(f)

whether there are aspects of public interest which weigh in the balance against the making of an order; and

(g)

whether there are any particular discretionary matters peculiar to the circumstances of the case.

In KP Cable Investments Pty Ltd v Meltglow Pty Ltd ,356 Beazley J outlined the following additional matters: (a)

security for costs applications should be brought promptly;

(b)

having regard to the strength and bona fides of the plaintiff’s case, as a general rule, where a claim is regular on its face and discloses a cause of action, in the absence of evidence to the contrary the Court should proceed on the basis that the claim is bona fide with a reasonable prospect of success;

(c)

whether the respondent’s application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate;

(d)

whether there are any persons standing behind the company who are likely to benefit from the litigation. An issue related to this is whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking; and

(e)

security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate.

Page 416 Various other authorities have identified other circumstances in which a court may be prepared to order security for costs. These include: (a) whether there is such a significant overlap between the matters raised by the plaintiff ’s claim and the defendant’s counterclaim that it would be unfair to oblige the plaintiff to put up security;357 (b) whether the respondents voluntarily assumed the risk of a corporate plaintiff ’s financial position;358 (c) the nature of the defendant (for example, when the defendant is a well-resourced and amply funded body such as the state, a council, a major corporation, or an insurer);359 (d) where there is conduct which causes loss of time to the court and other parties or amounts to contempt of court;360 and (e) where there is a false allegation of fraud.361

355 (1989) ATPR 40-972 at 50,635; [1989] FCA 1520 at [24]. See too Soh v Commonwealth [2008] FCA 1524 at [10] per Moore J; Clack v Collins (No 1) [2010] FCA 513 at [13] 356 (1995) 56 FCR 189 at 196–8; [1995] FCA 76

per Jagot J.

.

357 Mercus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 at [21],[60]–[67] cited.

per Murphy J and the authorities there

358 Mercus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103 at [21],[68]–[74] cited.

per Murphy J and the authorities there

359 See Jazabas Pty Ltd v Haddad (2007) ACSR 276; [2007] NSWCA 291 at [75]–[76] P agreeing).

per McClellan CJ at CL (Mason

Page 76 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 360 Vantage Holdings Pty Ltd v Huang [2015] FCA 155 at [34]

per Collier J.

361 Vantage Holdings Pty Ltd v Huang [2015] FCA 155 at [34]

per Collier J.

Impecuniosity of the plaintiff

10.156 One of the circumstances that may render it unjust to order security is the plaintiff ’s impecuniosity. The general rule from Cowell v Taylor is that poverty is no bar to a litigant.362 In general, the bare fact of impecuniosity is not of itself reason to order a plaintiff (who is a natural person) to provide security for costs.363 Since security for costs is strictly a measure against evasion or unequal treatment, a defendant is not entitled to security simply because the plaintiff is poor and there is a danger that costs will not be recoverable. It would be unjust to order security for costs against a plaintiff that is unable to provide it. Such an order would effectively deny the plaintiff the opportunity to sustain its action, and may cause the litigation to be frustrated or stultified.364

362 (1885) 31 Ch D 34 at 38. See too Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 at 530

per Connolly J.

363 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [38] per French CJ, Gummow, Hayne and Crennan JJ, citing Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; [2002] NSWCA 32 at [80]–[101]

per Heydon JA.

364 Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 221 at [27] per McDougall J.

10.157 As Heydon J recently explained, the rule from Cowell v Taylor is a ‘severely qualified one’.365 Young CJ in Eq regarded impecuniosity as merely one factor the court takes into account when making an assessment as to whether the proceedings,

Page 417 in the absence of an order for security, would be an abuse of process.366 Impecunious natural persons are frequently ordered to pay security if there is some other factor present.367 One such factor is when an impecunious plaintiff has a history of delay and non-compliance with court directions. In the recent case of Hassoun v Wesfarmers General Insurance t/as Lumley General ,368 Mr Hassoun sued his insurer after his business premises were damaged by fire. Mr Hassoun appealed against an order of the District Court that he provide security for costs and that the proceedings be stayed until the security was given. Beech-Jones J noted369 that such an order would not ordinarily be expected in a matter where an individual sues their insurer after their home or business burns down, even if the individual is impecunious. However, the Court of Appeal unanimously upheld the District Court’s decision that Mr Hassoun’s impecuniosity, teamed with his extensive history of delay and non-compliance with court directions, warranted an order for security to protect Wesfarmers against further wasted costs in the future.

365 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [91] dissent).

per Heydon J (in

366 Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; [2002] NSWCA 32 at [136] Eq.

per Young CJ in

Page 77 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 367 See, for example, the examples listed in Knight v Beyond Properties Ltd [2005] FCA 764 at [33] 368 [2015] NSWCA 33

per Lindgren J.

per McColl and Gleeson JJA and Beech-Jones J.

369 [2015] NSWCA 33 at [104].

10.158 Similarly, although the law requires some defendants to ‘accept the risk that natural persons who litigate viable claims in good faith for their own benefit might not be able to satisfy an order for costs … a claimant who “has adopted a vexatious mode of conducting the litigation” may fall outside the general rule’.370 Matters which might constitute vexation include the non-payment of existing costs orders, advancing arguments without proper foundation, persisting in unfounded arguments already determined, lodging applications for leave to appeal with no reasonable prospects of success, and making scandalous allegations, with the effect of delaying the resolution of the proceedings and generating substantial costs.371

370 Mbuzi v Hall [2010] QSC 359 at [68] 371 Mbuzi v Hall [2010] QSC 359 at [69],[85]

per Applegarth J. per Applegarth J.

Stultification of proceedings

10.159 The possibility of stultification is a ‘powerful’ factor to be taken into account.372 In this context, ‘stultification’ of the proceeding means that the proceeding would be brought to a halt and made useless because the plaintiff cannot provide nor obtain the security ordered. The onus of proving stultification lies with the party resisting security.373 There are additional requirements for corporate plaintiffs seeking to assert stultification. Such a plaintiff must demonstrate that those standing behind the company who are likely to benefit from the action (for instance, shareholders or

Page 418 creditors)are also without means to satisfy an adverse costs order from their own resources or by raising the money from elsewhere.374

372 Idoport v National Australia Bank (No 35) [2001] NSWSC 744 at [50] 373 Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61 at [81]

per Einstein J.

per Allsop CJ and Middleton J.

374 Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 4; [1984] FCA 34 per Sheppard, Morling and Neaves JJ; Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Ltd [2012] NSWCA 113 at [13]–[17] per McColl JA.

10.160

Page 78 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments On this issue, Madgwick v Kelly 375 is a notable decision in which the Full Federal Court awarded security for the respondents’ costs in related representative proceedings (sometimes known as class actions). The representative proceedings concerned the collapse of entities who ran managed investment schemes. The applicants were natural persons who had invested in the schemes. The class actions were not backed by a litigation funder. The applicants argued unsuccessfully that an order for security would stultify the litigation.Solicitors for the applicants had conducted a telephone survey of a sample of known group members to ascertain their willingness to contribute funds towards an order of security for costs. Ultimately, the Full Court found that the results of the survey did not permit a conclusion of stultification to be drawn. Given the nature of the underlying claims and the proved ability of at least a not insignificant number of group members to contribute funds, an order for security was held to be appropriate.The question of quantum was remitted to the primary judge.

375 (2013) 212 FCR 1; [2013] FCAFC 61

.

10.161 A general question may be raised about the appropriateness of security for costs orders in representative proceedings in the Federal Court, because the persons represented by the applicant (that is, the group members) are not in fact parties to the proceedings. However, as cases such as Madgwick v Kelly 376 and Bray v F HoffmannLa Roche Ltd show ,377 the court may nonetheless order security for costs as part of its general powers.

376 (2013) 212 FCR 1; [2013] FCAFC 61

.

377 (2003) 130 FCR 317; [2003] FCAFC 153

.

Timing of the application for security

10.162 Moffitt P explained that the primary reason why an application should be brought and determined promptly is that a plaintiff, particularly one which has financial problems, ‘is entitled to know its position in relation to security at the outset, and before it embarks to any real extent on its litigation, and certainly before it is allowed to or commits substantial sums of money toward litigating its claim’.378 French J in Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd 379 also explained that: … [t]he further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the Court that such an order is not, in the circumstances, unfair or oppressive.

Page 419 The court must look at the length of the delay, the factors that have led to the delay, and the nature of the acts done in the meantime.380 If the delay has not caused the plaintiff any prejudice, the significance of any delay is substantially reduced. For an overview of principles relevant to this factor, see Idoport Pty Ltd v National Australia Bank Ltd .381

Page 79 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments 378 Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 309 379 (1987) 16 FCR 497; [1987] 16 FCA 102 at [141]

.

380 Acohs Pty Ltd v Ucorp Pty Ltd (2006) 155 FCR 181; [2006] FCA 1279 at [61] 381 [2001] NSWSC 744 at [69]–[81]

.

per Jessup J.

per Einstein J.

Whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct

10.163 If the defendant has contributed in some way to the plaintiff ’s impecuniosity, it would be unjust to let the defendant benefit from its own wrong by imposing a demand for security on the plaintiff. To prove that the plaintiff ’s impecuniosity is attributable to the defendant’s conduct (as a material contributor or cause), the plaintiff must lead evidence as to a real causal connection between the impugned conduct and its impecuniosity which would make it unjust, in the exercise of the court’s discretion, to require security.382 It must also be established that the party seeking security has been guilty of some form of misconduct or unacceptable business dealings vis-à-vis the plaintiff.383 The plaintiff must be able to support the allegation with relatively straightforward and unambiguous evidence, in order to avoid a trial within a trial.384 The plaintiff must provide evidence of its financial position before the alleged wrongdoing by the defendants.385

382 Dalma Formwork Pty Ltd (admin appt) v Concrete Constructions Group Ltd [1998] NSWSC 472 Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2002] NSWSC 609

per Rolfe J; Ingot

per Bergin J.

383 Contamination Control Laboratories Pty Ltd v Reyer [2010] QSC 1 at [8] per Daubney J. 384 See G E Dal Pont, The Law of Costs, 2nd ed, LexisNexis Butterworths, Sydney, 2009, as cited with approval by intermediate appellate courts in cases such as Jazabas Pty Ltd v Haddad (2007) ACSR 276; [2007] NSWCA 291 at [95]

per McClellan CJ at CL (Mason P agreeing); and Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd

[2012] QCA 114 at [26]

per Wilson AJA (McMurdo P and Applegarth J agreeing).

385 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2002] NSWSC 609 at [96]

per Bergin J.

Whether the plaintiff is effectively in the position of a defendant

10.164 There is a strong line of authority that a court should be reluctant to order security if the proceedings are defensive in nature.386 The classic statement of principle in Australia appears in Willey v Synan .387 The plaintiff was forced to commence proceedings or otherwise lose any claim to coins that had been taken from him by the Customs Department. The court refused to order security. Dixon J explained that when the plaintiff ‘does issue a writ he does so to protect his supposed ownership. In

Page 420 substance he is not the attacker, actor or person seeking redress’.388 Other examples in which the plaintiff is effectively in the position of a defendant include when the plaintiff has brought proceedings to avoid condemnation of a vessel pursuant to statute;389 to avoid a ground upon which it could be wound up coming into existence;390 or to invoke a special statutory procedure to preserve a right that the statute, with the action of the respondent, might otherwise take away.391

Page 80 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

386 Maatschappij Voor Fondsenbezit v Shell Transport and Trading Company [1923] 2 KB 166 Scrutton LJ. 387 (1935) 54 CLR 175; [1935] HCA 76

at 177

per

per Dixon J.

388 (1935) 54 CLR 175 at 186; [1935] HCA 76. 389 Olbers Co Ltd v Commonwealth [2002] FCA 1269

per French J.

390 Aquatown Pty Ltd v Holder Stroud Pty (1995) 18 ACSR 622; [1995] FCA 1667 391 Re Travelodge Australia Ltd (1978) 21 ACTR 17

.

per Blackburn CJ.

Litigation funders

10.165 The existence of a litigation funding agreement is a relevant factor that may be taken into account when deciding whether to order security.392 In Green v CGU Insurance ,393 the defendant insurer sought security for costs against a liquidator (in person) being financed by a litigation funder. The court was divided as to the outcome. The majority (Hodgson and Campbell JJA; Basten JA in dissent as to outcome but not key matters of principle) was of the opinion that the existence of a litigation funder, and the liquidator’s agreement with the funder (under which the funder would achieve an undisclosed profit if the liquidator was successful, and under which the funder had agreed to indemnify the liquidator against any order for costs, including an order for security) were matters favouring an order for security. Hodgson JA explained that:394 … in my opinion, a court should be readier to order security for costs where the non-party who stands to benefit from the proceedings is not a person interested in having rights vindicated, as would be a shareholder or creditor of a plaintiff corporation, but rather is a person whose interest is solely to make a commercial profit from funding the litigation. Although litigation funding is not against public policy (Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41; 229 CLR 386 at [87]–[95] ), the court system is primarily there to enable rights to be vindicated rather than commercial profits to be made; and in my opinion, courts should be particularly concerned that persons whose involvement in litigation is purely for commercial profit should not avoid responsibility for costs if the litigation fails.

392 Note the obligations to disclose any litigation funding agreements to the court and other parties in class actions filed in the Federal Court pursuant to Class Actions Practice Note (GPN-CA) (25 October 2016), [6]. 393 (2008) 67 ACSR 105; [2008] NSWCA 148

.

394 (2008) 67 ACSR 105; [2008] NSWCA 148 at [51].

10.166 The court will look to matters such as the terms of the funding agreement, whether the funder has offered an undertaking to the court to pay any unsatisfied costs order, and whether there is adverse costs insurance underwritten by another entity(and, if so, the terms of that policy). In Suncare Constructions Australia Pty Ltd v Gainspace (Mackay) Pty Ltd ,395 Jackson J (in obiter) noted the importance of whether the promise of indemnity under the funding agreement could be terminated at any

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Page 421 time. Such a promise was said to offer no satisfactory security.396 In Domino’s Pizza Enterprises Ltd v Precision Tracking Pty Ltd (No 2) ,397 the combined effect of a funding agreement and adverse costs insurance, in the absence of extant undertakings, did not justify the court’s refusal of an application for security.

395 [2016] QSC 67 at [48]. 396 Suncare Constructions Australia Pty Ltd v Gainspace (Mackay) Pty Ltd [2016] QSC 67 at [52]. 397 [2017] FCA 211 at [75],[82]

.

10.167 The High Court recently considered litigation funders in connection with applications for security, and the possibility of abuse of process, in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd .398 The impecunious plaintiff had entered into a funding arrangement with a third party. If the plaintiff was successful, the funder was to receive the moneys advanced as well as a share of any amount awarded; if the plaintiff was unsuccessful,the funder did not provide the plaintiff with an indemnity for an adverse costs order made against it in the proceedings. Ultimately, the plaintiff was unsuccessful and could not meet the adverse costs order. The court held that if a plaintiff is impecunious,that points to security for costs, but not an order of costs against the funder for abuse of process.399 A litigation funder (and, equally, shareholders who support a company’s claim, relatives who support a family member’s claim, or banks who extend overdraft accommodation to a corporation’s claim) is not required to put the funded party in a position to meet any adverse costs order that may be made against it.400

398 (2009) 239 CLR 75; [2009] HCA 43

.

399 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [41]–[42] CJ, Gummow, Hayne and Crennan JJ. 400 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [43] Gummow, Hayne and Crennan JJ.

per French

per French CJ,

Quantum

10.168 The court has discretion to determine the amount to be paid. In determining the amount to be paid, the court does not set out to ensure a complete and certain indemnity for costs.401 The defendant bears the onus of leading evidence as to its expected future costs (along with evidence as to matters such as the reasons for seeking security, the plaintiff ’s assets, factors that may make it difficult to enforce a costs order, and the costs incurred to date). Evidence is often given by ‘an experienced practitioner as to the costs that are likely to be incurred’, along with expert evidence from a costs assessor ‘as to the amount of those costs that are likely to be allowed on taxation’.402 The evidence would go into the details of:403 (a) the nature of the work actually performed or anticipated likely to be performed; (b) the hourly rates charged by each of the different fee earners; (c) details of any discount applied, or to be applied, to the costs charged; and (d) the number of hours spent by each fee earner either in total, or in relation to each category of the work.

Page 422

Page 82 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Normally, no cross-examination is permitted on such evidence, or, if it is, it is generally kept under some constraint, given (a) the interlocutory nature of the application; and (b) the fact that a degree of informed estimation and the application of experience is a necessary part of the evidence usually tendered.404

401 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 at 175; [1952] HCA 49 at [5] 402 Save the Ridge v Commonwealth [2004] FCA 1289 at [24]

per Fullagar J.

per Emmett J.

403 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 2) [2012] FCA 23 at [89] per Edmonds J (citations omitted). 404 Ken Tugrul v Tarrants Financial Consultants Pty Ltd (No 4) [2014] NSWSC 291 at [65]

per Kunc J.

10.169 When evaluating that evidence, the court is not required to accept the defendant’s suggested amount of security, but must come to its own view as to the reasonableness of the suggested quantum. The court does not determine the quantum of security with mathematical precision. The task for the court is not to perform an assessment or taxation in advance.405 The court is not bound to set the amount of security to the full amount of future expected costs and does not seek to provide a complete and certain indemnity for the defendant. The amount will usually not exceed the assessment of likely party/party costs after trial (and in fact will usually be less). The court will bear in mind that it is not reasonable to expect a defendant to make further applications to the court at every stage when it appears that costs are escalating so as to render the amount of security previously awarded insufficient.406 Although the quantum ordered can cover costs already incurred in the proceedings, the court will often be reticent to incorporate those costs into an assessment when incurred before the making of an application for security and if the plaintiff’s potential impecuniosity was not reasonably ascertainable by the defendant.407 The court may also have regard to the costs already incurred and to those likely to be incurred in future, which it may then discount to reflect the possibility that the parties may settle early. The plaintiff’s means are relevant in this regard.

405 Ken Tugrul v Tarrants Financial Consultants Pty Ltd (No 4) [2014] NSWSC 291 at [65] 406 Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 190–1; [1992] HCA 28

per Kunc J.

per Mason CJ and Deane J.

407 Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd [2015] FCA 1164 at [63] and the authorities there cited.

per Edelman J

Payment and form of security

10.170 The court has discretion in determining the nature and the timing of any security that must be paid. There is no general form of security that must be ordered. Security is commonly provided by way of bank guarantee, bank bond, payment into a controlled moneys account (for example, an interest-bearing bank account in the name of the solicitors), charge, or payment into court. But the way in which security might be provided is theoretically endless. If security is to be provided by way of cash, the money may be required to be paid either in one lump sum, or in tranches (for example, with a first tranche to be paid promptly, and the issue to be later revisited if such an order would have the least impact upon the plaintiff and the least likelihood of stifling its capacity to prosecute its claims408). As Parker LJ reasoned in Rosengrens Ltd v Safe Deposit Centres Ltd ,409 ‘[s]o long as the opposite party can be adequately

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Page 423 protected, it is right and proper that the security should be given in a way which is the least disadvantageous to the party giving that security’.410

408 See Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd [2015] FCA 1164 at [63] J and the authorities there cited. 409 [1984] 3 All ER 198 at [200]–[201]

per Edelman

.

410 See too DIF III Global Co-Investment Fund, LP v BBLP LLC [2016] VSC 401 at [28]–[34] per Hargrave J, which summarises recent English authorities as to the acceptable form in which security ought to be given.

Stay or dismissal of proceedings for failure to provide security

10.171 If an application for security is successful, the court will normally direct that the action be stayed until there has been compliance with the order for security. Failure to provide security may lead to a dismissal of the proceedings pursuant to the relevant rules of court. Factors relevant to the exercise of the discretion to dismiss the proceedings include: the time which has passed since security was ordered; the likely ability to provide security; the extent to which the plaintiff has been on notice of the dismissal application; the likelihood of prejudice to the defendant as a result of continuing the stay; the impact on the court of continuing the stay; the ability of the plaintiff to commence new proceedings and the prejudice to the plaintiff (such as the expiry of a relevant limitation period).411 A party who cannot comply with the orders may approach the court for an extension of time.

411 Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [99] Ltd v National Australia Bank Ltd [2002] NSWCA 271

per Ward JA, with reference to Idoport Pty

.

Security for costs of an appeal

10.172 It is generally accepted that security for costs may be more readily granted in respect of an appeal. The fundamental principle governing the order for security for costs at an appellate level was set out over 130 years ago in Cowell v Taylor :412 The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty’s Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another.

In Tait v Bindal People ,413 Spender J said of the above passage that: What that passage demonstrates is that there is a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering, or the consideration of the ordering, of security for costs where one is at the appellate level. The difference is that, at the appellant level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to

Page 84 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust.

Page 424   In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings.

412 (1885) 31 Ch D 34

at 38

. See too Bethune v Porteous (1892) 18 VLR 493; [1892]VicLawRp 94 at 494

per Hood J; Ciappina v Ciappina (1983) 70 FLR 287 at 290; [1983] FCA 95 413 [2002] FCA 322 at [3]–[4]

per Neaves J.

.

10.173 The rules of court outline the circumstances when security for the costs of an appeal may be granted.414 Rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW), for instance, requires ‘special circumstances’ to be shown. It is well accepted that the word ‘plaintiff ’ in s 1335 of the Corporations Act includes an appellant.415 Factors relevant to the general exercise of discretion in the context of an appeal include, but are not limited to: (a) satisfaction of the threshold jurisdiction (that is, if there is reason to believe the appellant will be unable to pay the respondent’s costs if the appellant is unsuccessful); (b) if the respondent to the appeal is in a stronger position than a defendant, to the extent the respondent has a judgment in its favour presumed to be correct until and unless displaced; (c) if the appellant has not complied with an earlier costs order in the respondent’s favour (or has failed to explain any non-compliance); and (d) any delay in bringing the application for security.416

414 High Court Rules 2004 (Cth) r 59.01; Federal Court Rules 2011 (Cth) r 36.09; Court Procedures Rules 2006 (ACT) r 5302; Uniform Civil Procedure Rules 2005 (NSW) rr 501.8 and 51.50; Supreme Court Rules (NT) r 85.13; Uniform Civil Procedure Rules 1999 (Qld) r 772(1); Supreme Court Civil Rules 2006 (SA) r 295(1)(g); Supreme Court Rules 2000 (Tas) r 671;Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.24(2); Rules of the Supreme Court 1971 (WA) r 65.10(5). 415 Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd (No 2) [2014] WASCA 106 at [17] and the authorities there cited. 416 Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd (No 2) [2014] WASCA 106 at [19]–[21] JA and the authorities there cited.

10.174

per Murphy JA

per Murphy

Page 85 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments Security for costs of an application for leave to appeal may also be granted. Application of the rules and principles relevant to an application for security for costs of an appeal may be the most appropriate.417

417 See, for example, Patdith Services Pty Ltd v Mitronics Corporation Pty Ltd [2016] FCA 1315 at [25] per Markovic J.

Interim payment Purpose of the procedure

10.175 An ‘interim payment’ or ‘interim damages’ order directs a defendant to make an interim payment to a plaintiff as a part-payment of the damages sought to be recovered in the proceedings. The procedure seeks to ensure that a plaintiff with a clear right to a money judgment is not kept out of what is due to him or her by the necessity of quantifying the exact amount to which the defendant is liable. An early payment is particularly desirable where the plaintiff is in need of funds in order to obtain treatment or avoid hardship. Ralph Gibson LJ explained that ‘the underlying purpose ... [is] the mitigation of hardship or prejudice to a plaintiff which may exist during the period

Page 425 from the commencement of the action until trial’.418 Equally important, interim payments remove a defendant’s incentive to drag out the proceedings in order to force a needy plaintiff into an unfavourable settlement.

418 Ricci Burns Ltd v Toole [1989] 3 All ER 478 at 485; [1989] 1 WLR 993

at 1002

.

Situations in which interim payment orders may be made

10.176 Given that a defendant has a right not to be held liable to pay until its liability has been established by final judgment, the availability of interim payment is strictly circumscribed. It is not available in all jurisdictions. The situations in which an interim payment order may be made are outlined in s 82 of the Civil Procedure Act 2005 (NSW).419 The court cannot make such an order unless one of the following conditions is satisfied: (a) the defendant has admitted liability; (b) the plaintiff has obtained judgment against the defendant for damages to be assessed; or (c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

419 Note too s 38 of the District Court Act 1991 (SA), which is in different terms.

10.177 Situations (a) and (b) are relatively straightforward because there is there no conflict between the plaintiff’s wish for immediate payment and the defendant’s entitlement to due process, since the defendant has admitted liability,or judgment has already been given against it on liability. Situation (c) is more problematic, as the defendant then disputes liability and proposes to defend itself at trial. In situation (c), where liability remains to be determined,

Page 86 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments serious consequences may flow from the making of an order if the plaintiff ultimately does not succeed, and does not have the resources with which to repay the amount.420

420 Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [24]

per Macfarlan JA.

10.178 It is a basic principle that the right to damages or to recovery of a debt is wholly independent of what the plaintiff would do with the money he or she recovers (bluntly put: what the plaintiff is going to do with the money is none of the court’s business). Requiring the plaintiff to explain what he or she would do with the money is clearly out of place in situations (a) or (b) where the defendant has admitted liability or where judgment on liability has already been given. But matters are more complex in respect of situation (c). It is not an essential element for the making of an order under s 82 of the Civil Procedure Act 2005 (NSW) that the plaintiff demonstrate evidence of need. In that context, in Sargent v South Western Area Health Service ,421 upon making an order for interim payment, Garling J stated that, pursuant to the terms of s 82: … it would be open to the plaintiff to spend the money in any way he sees fit. He may even pay his lawyers in advance of the case being determined. He may choose in the particular circumstances of this case if his wife brings Family Court proceedings to use it to pay out such interest as his wife may have in the matrimonial property. … However, I wish to make it plain that in making this order for an interim payment the sole purpose which I envisage is that the sum of money ordered will be used for the benefit of the plaintiff himself, that the money will be used on such essential expenditure

Page 426   as relates to his injuries and disabilities, that the money will not be used for the payment of any third party or other debts, and that it not be used as a payment of legal fees to proceed with this case. It seems to me,although I express no concluded view, that if evidence was obtained that the monies were being used for purposes other than which I have indicated it may be open to a defendant to move the Court to rescind the order for interim payment of damages. However,there is no need to make any final determination upon that issue.

421 [2010] NSWSC 1506 at [26]–[27]

.

10.179 Although the court is not required to be satisfied about the use to which the money sought would be put, it is relevant to what is ‘just’ in the circumstances to ‘look at the likely use of the moneys and the timeframe in which the monies will be used and for what purpose’.422 Although it is not open to the court to make it a condition of the order that the money be used in a particular way, the court has on occasion expressed hope as to the specific uses to which the money would be put.423

Page 87 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

422 Munsie v Munsie [2012] NSWSC 479 at [30]

per Garling J.

423 Munsie v Munsie [2012] NSWSC 479 at [31]–[32]

per Garling J.

10.180 It is suggested that the better approach, where liability remains to be determined, would be to require the court to consider whether the plaintiff ’s need justifies running the risk that a plaintiff who has received an interim payment would be unable to reimburse the defendant in respect of any overpayment. In such cases, the significance of the plaintiff’s need should be correlated to the strength of the plaintiff ’s case. The closer the claim is to being foolproof, the less important should be the plaintiff’s need. Where the claim, although strong, is not close to certain, the court must strike a balance between the plaintiff’s interest in an early payment on account, and the defendant’s interest in being protected from the risk of having to make payment which may not be due. In this situation it does matter whether the plaintiff would suffer hardship as a result of the delay; if he or she would not, it may not be unjust to refuse an interim payment. But if the plaintiff ’s need is pressing and delay could cause him or her hardship, the plaintiff ’s demand for early payment may well outweigh the defendant’s need for protection from error. This situation provides yet another illustration of the tension between timely justice and rectitude of outcome. The greater the hardship caused by delay, the more likely it is that the court would lean towards granting the plaintiff’s application.

Interests of the defendant

10.181 At times, the court is faced with invidious choices. For instance, a plaintiff with a personal injuries claim may be in dire need of interim payment, but the defendant’s need for protection may be just as great since the plaintiff would be likely to spend the money on treatment or living expenses and be unable to pay it back should his or her claim be defeated at trial. An order to make interim payment may cause hardship where the defendant has limited means, because it may find it difficult to raise the necessary funds or to recover from non-restoration. Section 82(4) of the Civil Procedure Act 2005 (NSW) provides that the court may not make an order for interim payment if (a) the defendant is not insured in respect of the risk giving rise

Page 427 to the plaintiff ’s claim for the recovery of damages; (b) the defendant is not a public authority; and (c) the defendant would, having regard to its means and resources, suffer undue hardship if such a payment was ordered.

Amount of interim payment

10.182 Section 82(5) of the Civil Procedure Act 2005 (NSW) provides that the court must not order an interim payment that exceeds a reasonable proportion of the amount of damages that, in the court’s opinion, are likely to be recovered by the plaintiff. The court may order interim payment in one or more instalments of such amounts as it thinks just. It has been said that ‘reasonable proportion’provides ‘no formula giving rise to a specific arithmetical result’.424

424 Group 4 Securitas v Naidu [2005] NSWCA 470 at [18]

per Adams J.

Page 88 of 88 Chapter 10 Interim Remedies — Injunctions, Freezing Orders, Security for Costs, Interim Payments

10.183 The court must start by assessing the amount likely to be awarded if the plaintiff were to succeed at trial. This amount has to be reduced to a reasonable proportion. The reasonableness of the amount of interim payment will depend on a variety of factors, including the plaintiff ’s chances of establishing his or her entitlement to the amount claimed, the plaintiff ’s need, the likelihood that the defendant will be unable to recover from the plaintiff any overpayment, and the hardship that the defendant is likely to suffer from having to make immediate payment or from being unable to recover overpayment. The plaintiff’s impecuniosity both strengthens the case for interim payment, due to the plaintiff’s need, and weakens it, due to the increased risk that the defendant will be unable to recover overpayment. Much must therefore depend on the court’s confidence that the plaintiff will be able to recover the amount claimed.

End of Document

Chapter 11 Court Management and Party Compliance Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 11 — Court Management and Party Compliance

Chapter 11 Court Management and Party Compliance Page 429 [Current to May 2018]

Introduction

11.1 The laws and rules in each jurisdiction confer extensive case management powers on Australian courts. These powers are essentially of two kinds: management powers and compliance powers. The former are used to control the conduct of litigation by means such as setting timetables, directing pre-trial preparations, and regulating the manner of the trial and any other interlocutory hearings. Compliance powers, however, enable the court to deal with party failure to comply with process requirements that are imposed by the rules, practice directions, or court orders. In addition to the compliance powers contained in the rules, some Australian courts have an inherent jurisdiction to protect their processes from misuse and abuse. This chapter provides a general account of case management powers, leaving detailed discussion of discrete procedures to other chapters devoted to them, such as service, allocation to a track, discovery, expert evidence, trial and appeal. A more detailed account is provided in this chapter on the exercise of compliance powers. To understand this chapter, and indeed modern case management, it must be read in conjunction with Chapter 1.

11.2 As case management powers are essentially discretionary, considerable attention needs to be given to the manner in which this discretion is exercised. Compliance powers come into play, for example, whenever a party seeks an extension of time within which to comply with process requirements; when a party seeks relief from any sanction to which it is, or may be, liable in consequence of a procedural default; and whenever a party seeks to amend or vary case management directions. Given that the effectiveness of case management depends upon party compliance with court rules and orders, the court’s response to non-compliance shapes the nature and efficiency of the litigation process.

11.3 In most jurisdictions, the court’s discretionary powers must be exercised with a view to promoting the overriding objective.1 Using the Federal Court as an example,

Page 430 s 37M(3) of the Federal Court of Australia Act 1976 (Cth) makes it mandatory for the Federal Court to exercise any power conferred or duty imposed on it by the Federal Court Rules 2011 ‘in a way that best promotes the overarching purpose’. Section 37M(1) states that ‘the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently

Page 2 of 42 Chapter 11 Court Management and Party Compliance as possible’. Section 37M(2) then sets out a non-exhaustive list of the goals of case management which, as outlined in Chapter 1, 1.56 ff, can be reduced to the key principle of deciding cases justly in a proportionate and expeditious manner. Details of the case management directions that are required to be guided by the overarching purpose are set out in s 37P. These include any directions which ‘require things to be done’, ‘set time limits for the doing of anything, or the completion of any part of the proceeding’, ‘limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence’, ‘provide for submissions to be made in writing’, ‘limit the length of submissions (whether written or oral)’, ‘waive or vary any provision of the Rules of Court in their application to the proceeding’, or ‘revoke or vary an earlier direction’. These rules articulate some of the practical implications of the overriding objective. It should be borne in mind that while the overriding objective and the rules provide the principles and the tools for their application, they do not confine the court to some narrow predetermined path. Instead, they leave the court free to design the process most likely to lead to a satisfactory resolution of the dispute at proportionate cost and within a reasonable time.

1

See Chapter 1 for a detailed account of the overriding objective, and in particular 1.81 ff for a discussion on the requirement for discretionary powers to be exercised with a view to promoting the overriding objective. In the Federal Court and in New South Wales, the courts must consider the principles of the overriding objectives each time they exercise case management powers: Federal Court of Australia Act 1976 (Cth) s 37M(3); Civil Procedure Act 2005 (NSW) ss 56(2) and 58; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36]–[43] Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

per Allsop ACJ; ; Dunlop v

Fishburn (No 3) [2012] FCA 315 at [9] per Katzmann J. Although no case has been decided in Victoria on this point, it is submitted that ss 8 and 9 of the Civil Procedure Act 2010 (Vic) will be interpreted in a similar way as the wording of these provisions is similar to the Federal Court and New South Wales provisions. See also Court Procedures Rules 2006 (ACT) r 21(2); Supreme Court Rules (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5(2); Rules of the Supreme Court 1971 (WA) O 1 r 4. In the Supreme Court Civil Rules 2006 (SA) r 117; and Supreme Court Rules 2000 (Tas) r 415(2)–(4), the rules provide that the court may make any order necessary in the interests of justice and may have regard to the overriding objective, respectively. In these jurisdictions, it is submitted that the overriding objective is mandatory as the interests of justice require case management powers to be exercised proportionately and in a timely manner: British American Tobacco Australia Services Ltd v Cowell (2002)7 VR 524; [2002] VSCA 197 at [178] ACJ.

; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [46]

per Allsop

11.4 Although case management is of necessity fact-dependent and discretionary, decisions should be generally predictable so that the parties know what the likely outcomes of case management decisions will be. Furthermore, lawyers and their clients need to understand how the judicial mind works and the likely court response to interlocutory issues that may arise. For example, litigants must have some means of predicting how the court would react to an application for an extension of time or how it might deal with litigant failure to perform certain process requirements. Of course, discretionary powers cannot be reduced to a set of hard and fast rules,

Page 431 capable of mechanical application.2 This does not mean that coherent principles, policies and guidelines for the exercise of discretion should not be both feasible and necessary.3 In the absence of a well-articulated set of rules, case management is likely to become unpredictable. This in turn is likely to give rise to wasteful satellite litigation on interlocutory matters that undermines the efficiency of litigation that the overriding objective insists upon.

2

Norbis v Norbis (1986) 161 CLR 513 at 518

per Mason and Deane JJ. In CDJ v VAJ (1998) 197 CLR 172 at 185;

[1998] HCA 67 at [53]–[54] , Gaudron J said that where a general and unconfined discretion is conferred on a court, it is governed by the requirement that it be exercised judicially and consistently with the judicial process. While

Page 3 of 42 Chapter 11 Court Management and Party Compliance the concepts of exercising a discretion judicially and consistently with the judicial process are not rigid, the overriding objective informs and confines the exercise of discretion. 3

I Scott, ‘Caseflow Management in the Trial Court’ in A Zuckerman and R Cranston (eds), Reform of Civil Procedure: Essays on Access to Justice, Oxford University Press,1995. See also J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 376 at 376–7; W Schwarze, ‘Case Management in the Federal Courts’ (1996) 15 Civil Justice Quarterly 141.

11.5 Principles and policies are of particular importance in relation to the enforcement of process requirements and for dealing with litigant default. The powers that the court possesses under the court rules to excuse defaults and allow defaulting parties further opportunities to comply are similar to those that the court had under the Old System of civil procedure.4 For example, an irregularity arising by a failure to comply with the rules does not invalidate a step taken in the proceedings and the court may either set aside the defective step or remedy the error.5 Furthermore, courts in each Australian jurisdiction may extend the time for compliance with any rule or court order even after the expiry of the relevant deadline.6 Much of the failure of the Old

Page 432 System can be attributed to the judicial willingness to forgive party failure to comply with process requirements, which resulted in a culture of optional compliance.7

4

For an account of the Old System, see Chapter 1, 1.1 ff.

5

In the Federal Court, no proceedings are invalidated by a formal defect or an irregularity unless the court is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the court. The court or judge may make an order declaring that the proceeding is not invalid by reason of a formal defect or irregularity: Federal Court Act 1976 (Cth) s 51. In New South Wales, an irregularity does not invalidate the proceedings. However, the court has power to set aside the proceedings, or any step taken in the proceedings, in whole or in part, and allow amendments to be made. These orders may only be made on application by a party made within a reasonable time and before the party takes any fresh step in the proceedings after becoming aware of the failure: Civil Procedure Act 2005 (NSW) s 63. In Victoria,a failure to comply with the rules is an irregualrity but does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity. Similar remedial orders made be made such as those referred to above in the Federal Court and in New South Wales: Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 2.01. In South Australia, a procedural irregularity does not make a proceeding void. The court may dismiss the proceeding or set aside a particular step, and may make a costs order against the defaulting party or their lawyer: Supreme Court Civil Rules 2006 (SA) rr 12, 13 and 117. See also Court Procedures Rules 2006 (ACT) r 1450; Supreme Court Rules (NT) r 2.01; Uniform Civil Procedure Rules 1999 (Qld) r 371 ; Supreme Court Rules 2000 (Tas) rr 13 and 14; Rules of the Supreme Court 1971 (WA) O 2 r 1.

6

High Court Rules 2004 (Cth) r 4.01; Federal Court Rules 2011 (Cth) r 1.39; Court Procedures Rules 2006 (ACT) r 6351; Uniform Civil Procedure Rules 2005 (NSW) r 1.12; Supreme Court Rules (NT) r 3.02; Uniform Civil Procedure Rules 1999 (Qld) r 7; Supreme Court Civil Rules 2006 (SA) r 117; Supreme Court Rules 2000 (Tas) r 52; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 3.02; Rules of the Supreme Court 1971 (WA) O 3 r 5.

7

See discussion in Chapter 1, 1.9 ff.

11.6 The powers to forgive defaults, litigant-induced delay and other forms of non-compliance must be exercised so as to further the overriding objective. Since the best-laid case management plans would be worthless if litigants do not fulfil their process obligations by the relevant deadlines, the success of the case management process depends on the court’s ability to secure standards of compliance. As explained in Chapter 1, the criterion for success is whether the court is able to deliver justice with proportionate use of resources and within a reasonable time.

Case management, party autonomy and the adversarial system

Page 4 of 42 Chapter 11 Court Management and Party Compliance

Case management is consistent with the adversarial system

11.7 While the bulk of the present chapter is concerned with the instruments for court control of litigation,8 it is important to clarify at the outset that case management has not fundamentally altered the adversarial nature of civil procedure.9 The Australian adversarial system has traditionally had three principal features: party autonomy, limited judicial responsibility for outcomes, and party control of the litigation process. While the transfer of litigation control to the court has not affected the first two features, it has significantly altered the third feature. It must be borne in mind, however, that the court has always had a measure of control over its own processes. Well before the modern rules of court, rules and orders were made by courts to dictate process requirements and set deadlines for their fulfilment. For example, it has always been for the court to allow or disallow an amendment, grant an extension of time within which to comply with a process requirement,or to permit a party to call fresh evidence on appeal. That courts under the Old System allowed parties considerable freedom to

Page 433 determine the intensity and pace of the litigation process does not alter the fact that the court was in ultimate control. Accordingly, while the court’s case management powers are greater in the modern rules of court, efficient case management can only be achieved if these powers are appropriately exercised.

8

For more information on court control over litigation, see Chapter 1, 1.76 ff. In Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46 at [56]–[57] , the court said that the conduct of proceedings ‘is firmly in the hands of the court’. Rule 10 of the Supreme Court Civil Rules 2006 (SA) is an example of express rules regarding the court’s control over its procedure.

9

For a classical discussion of the value of party autonomy, see L Fuller, ‘Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353. See also S Landsman, The Adversary System, American Enterprise Institute for Public Policy Research, 1984; M Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process, Yale University Press, 1986;D Luban, ‘The Adversary System Excuse’ in D Luban (ed), The Good Lawyer: Lawyers’ Role and Lawyers’ Ethics, Rowman and Allanheld, 1984; D Luban, Lawyers and Justice: An Ethical Study, Princeton University Press, 1988; J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374; P Sallmann, ‘Observations on Judicial Participation in Caseflow Management’ (1989)8 Civil Justice Quarterly 129; J McEwan, Evidence and the Adversarial Process: The Modern Law, Blackwell, Oxford, 1992; M Zander, ‘The Woolf Report: Forwards or Backwards for the New Lord Chancellor’ (1997) 16 Civil Justice Quarterly 208 at 214; M Zander, The State of Justice, Sweet & Maxwell, London, 2000, pp 43–4; W Schwarzer, ‘Case Management in the Federal Courts’ (1996) 15 Civil Justice Quarterly 141; Australian Law Reform Commission, What is the adversarial system of litigation?, Issues Paper 20, 1998, [20].

11.8 By its very nature, law enforcement is a monopoly of the state. The court is the last resort when it comes to protecting rights. This means that the court process is, at its core, a public service that must be adequately managed. Gummow, Hayne,Crennan, Kiefel and Bell JJ identified in Aon Risk Management Services Australia Ltd v Australian National University,10 that it ‘is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.11 Like any other public service, its operation cannot be left to its users, which are the litigants in this context. All public services are directed and controlled by the public body charged with delivering the particular service. It follows,therefore, that there is no such thing as a management-free public service. There are only well managed and poorly managed public services, and perhaps some public services that fall somewhere in the middle.

Page 5 of 42 Chapter 11 Court Management and Party Compliance 10 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

11 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [113]

per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

Party autonomy

11.9 Before turning to the court’s case management powers, it is important to understand how party autonomy limits the court’s powers to control the litigation process. As a matter of general principle, parties to a dispute are autonomous in procedure. They are free to choose whether to litigate, what to litigate, and what evidence to call in support of their respective claims or defences. The court has no power to insist that the parties litigate issues they do not wish to raise. For example, in Huang v University of New South Wales (No 3), Rares J held that a Federal Magistrate had erred by deciding of his own motion to admit material from an affidavit which no party had put before him.12 As explained by McHugh and Hayne JJ in Gipp v R, ‘the adversarial nature of our legal system … relies on an impartial judge as arbiter of the issues and … requires that the parties determine which issues will be put before a court for decision’.13

12 Huang v University of New South Wales (No 3) (2006) 154 FCR 16; [2006] FCA 626 13 Gipp v R (1998) 194 CLR 106 at 124

per Rares J.

per McHugh and Hayne JJ.

11.10 Once an issue has been raised, the court has no power to prevent the parties from settling it amongst themselves and withdrawing it from adjudication. If, having denied liability in a claim for personal injuries, the defendant has a change of mind and is prepared to acknowledge liability, he or she may do so at any time before judgment. Once he or she has done so, the court is powerless to continue considering the issue of liability and force a determination according to the evidence.The court does, however, control its judgment, and will not necessarily allow the parties to withdraw from adjudication once the court has circulated a draft judgment.14

Page 434

14 For discussion, see Chapter 23, 23.24 ff.

11.11 A further aspect of party autonomy is reflected in the context of evidence. Parties bear the responsibility for gathering evidence and presenting it to the court. They are free to choose which evidence to leave out, regardless of relevance.In Re JRL; Ex parte CJL,15 Mason J explained: … one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone,unless

Page 6 of 42 Chapter 11 Court Management and Party Compliance Parliament otherwise provides.16

If the parties would rather not call a certain witness, or would rather not rely on a certain document, the court generally cannot interfere with their choice even if it regards the evidence as highly significant.17 It is also not for the judge to take on the role of counsel and call witnesses or cross-examine witnesses.18 This is a corollary of the judge being an umpire and not an inquisitor.19 Although a court has some vestigial powers to call evidence of its own initiative, they are hardly ever exercised.20 The parties bear the task of probing the opponent’s evidence and are, therefore, free to object or refrain from objecting to evidence that another party introduces. Rares J explained this in Huang v University of New South Wales (No 3),21 in the following terms: At the end of the day, if the absence of a witness occurs and this affects the quality of the evidence properly before the court, the result will still be fair as between the parties, if the judge acts on that limited material, even though it may be thought to be unsatisfactory. The latter, but not the former, consequence may be the fault of the parties in their selection of the evidence or it may be that the parties have each decided that the witness would be of no assistance.22

Page 435

15 Re JRL; Ex parte CJL (1986) 161 CLR 342

.

16 Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350

per Mason J.

17 See Re Enoch and Zaretzky, Bock & Co’s Arbitration [1910] 1 KB 327 Titheradge v R (1917) 24 CLR 107; 24 ALR 77; [1917] HCA 76 (NSW) 101

; R v Apostilides (1984) 154 CLR 563 at 576

Factors Pty Ltd (1988) 14 NSWLR 552 at 567–8 [1957] 2 QB 55

at 63

; [1908–10] All ER Rep 625 (CA)

, cited in

; Re Williams (1926) 26 SR (NSW) 383; 43 WN ; Clark Equipment Credit of Australia Ltd v Como

. For the position in England, see Jones v National Coal Board

; Society of Lloyd’s v Jaffray, The Times, August 3, 2000; McPhilemy v Times

Newspapers Ltd [2000] 1 WLR 1732

.

18 Whitehorn v R (1983) 152 CLR 657 at 682

per Dawson J; R v Apostilides (1984) 154 CLR 563 at 576

Rangott (2008) 167 FCR 225; [2008] FCAFC 45

; Zanker v Kupsch [2014] SASCFC 13 at [142]

also R v Esposito (1998) 45 NSWLR 442 at 467

per Wood CJ.

; Sharp v

per Sulan J. See

19 J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [17070]. It must be noted that characterising a judge as an ‘umpire’ in Australia has been met with criticism: D Ipp,‘Reforms to the Adversarial Process in Civil Litigation — Part 1’ (1995) 69 Australian Law Journal 705 at 713–4 and generally D Ipp, ‘Reforms to the Adversarial Process in Civil Litigation— PartII’ (1995) 69 Australian Law Journal 790. 20 Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518; 66 ALR 371 per Wilcox J. See also Uniform Civil Procedure Rules 1999 (Qld) r 391; J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [17080]. 21 Huang v University of New South Wales (No 3) (2006) 154 FCR 16; [2006] FCA 626

.

22 Huang v University of New South Wales (No 3) (2006) 154 FCR 16; [2006] FCA 626 at [28]

per Rares J.

Party autonomy renders most process requirements electable

11.12 The fact that parties are free to engage in, or disengage from, litigation has an important implication for the nature of process requirements, such as the requirement of serving the claim form or a defence, giving disclosure, or serving witness statements. It is common to describe such requirements as ‘duties’ or ‘obligations’. Thus, it is usual

Page 7 of 42 Chapter 11 Court Management and Party Compliance to speak to a party’s ‘duty’ to serve a claim form or a defence, or a witness statement, within a certain period of time. However, these are not duties or obligations in the sense that these terms are used in other branches of the law. The ‘duty’ to serve a witness statement is not the same kind of duty as the duty to pay income tax, or damages for breach of contract, because most procedural obligations are not enforceable in the same way that substantive rights are enforceable. For example, while r 24(1) of the Uniform Civil Procedure Rules 1999 (Qld) provides that a claim must be served within one year of its issue, it does not impose any obligation whatsoever on the plaintiff, who is free not to serve the claim. By the same token, a defendant is not obliged to serve a defence, but is free to allow the claim to take its course without participating. The parties remain completely free to choose whether to pay or not. In Berowra Holdings Pty Ltd v Gordon,23 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ explained this: In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person’s right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.24

23 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; 228 ALR 387; [2006] HCA 32

.

24 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; 228 ALR 387; [2006] HCA 32 at [15] Gummow, Hayne, Heydon and Crennan JJ.

per Gleeson CJ,

11.13 These simple observations have important implications. If claimants are under no obligation to perform most process requirements, the consequences of their defaults cannot be regarded as ‘sanctions’, in the strict sense of the word.The term ‘sanction’ normally implies punishment for failure to perform a duty. In this sense, a sanction is designed to inflict a disadvantage for breach of a duty to deter further breaches and to encourage future compliance. However, this is hardly true of most consequences of procedural defaults. Where a defendant fails to serve a defence, the plaintiff may obtain a default judgment but this is not a punishment intended to encourage defendants to defend claims brought against them. On the contrary, a defendant with no real prospects of success should be discouraged from defending a claim otherwise the court would be burdened with unmeritorious litigation. Equally significant is the fact that a default judgment is not meant to reflect the gravity of the default. Claimants who do not pay court fees will have their claims struck out, but this is no mark of disapproval nor a measure calibrated to the seriousness of the default. The same is true of other process requirements, and not just those concerned with the

Page 436 initial process of engaging in litigation. For example, a defendant who fails to answer a notice to produce served on it by a plaintiff may have its defence struck out.25 Again, this is not a sanction or punishment as it simply represents a consequence of the failure to satisfy a condition for defending a claim.

25 Bechara v Bates (No 3) [2015] NSWSC 1588

11.14

per Adamson J.

Page 8 of 42 Chapter 11 Court Management and Party Compliance While it is plain that such consequences of procedural default cannot be characterised as a punishment or sanction, it might be thought that the consequences of failure to meet deadlines are of a different nature. It might be said that denying permission for late compliance with a process requirement (such as service of a claim form or of a witness statement) is in the nature of a punishment or a sanction. This is not, however, a sustainable proposition. Time limits are not external to, or independent of, process requirements, but rather an integral part of any process. There is no such thing as a temporal-free process requirement. Failure to comply with a time limit is just as harmful to the process in question as failure to comply with any other aspect of the process requirement. Failure to meet the deadline for service of a claim form is not different in its invalidating effect than the failure to issue the claim form. The consequences of failure to meet time limits are therefore no more punishment than the consequences of any other procedural default. Few would argue that a limitation of actions defence is a sanction or punishment for failure to bring proceedings within the limitation period. There is, therefore, no reason to conclude that refusing permission for late service of an expert report is, for example, a sanction. The consequences of procedural defaults, it is suggested, are no more sanctions than the consequences of meeting the conditions for any other entitlement.The unenforceability of an oral contract for the sale of land is not a sanction for failing to reduce the contract into writing.26 Withholding a driving licence is not a sanction for missing a driving test. In sum, while a litigant is free not to perform a procedural step, the consequences of its failure to do so cannot be regarded as a punishment.

26 Statute of Frauds 1677 29 Car 2 c 3 (IMP) s 4; Civil Law (Property) Act 2006 (ACT) s 204; Conveyancing Act 1919 (NSW) s 54A; Law of Property Act 2000 (NT) s 62; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26; Conveyancing and Law of Property Act 1884 (Tas) s 36; Instruments Act 1958 (Vic) s 126; Law Reform (Statute of Frauds) Act 1962 (WA).

11.15 This is not to say that the consequences of procedural defects cannot be remedied, or that the consequence of default cannot be altered. A well-governed procedural system must have some flexibility for dealing in an effective and proportionate manner with defective compliance with rules and court orders. Thus, the court has the power to set aside a judgment entered in default of defence, even if the judgment was regularly entered.27 The court has a general power to remedy procedural defects and grant extensions of time for performing process requirements.28 It is therefore able to excuse unavoidable obstacles to performance, such as genuine accidents and illness. Some allowance must also be made for the imperfection of legal services as not all legal representatives are equally well informed and organised and not all litigants have the same resources available to them to fund and conduct litigation. However, making

Page 437 an allowance in procedure must be seen for what it is, namely, a concession to human frailty or imperfection and not a mitigation of punishment.

27 See Chapter 9, 9.42 ff. 28 See 11.6 ff above.

11.16 The distinction between sanctions and consequences is not merely a matter of semantics. Rather, it is a distinction between different approaches to the enforcement of procedural rules and orders. A court that regards default consequences as sanctions will seek to ensure that the punishment is just. It will, therefore, approach an application for relief from a procedural requirement by asking itself whether the plaintiff has done something to deserve suffering a punishment or a sanction(lex talionis). By contrast, a court that regards results of default as non-penal consequences will not question the justice of the outcome of a consequence, any more than it would question the justice of not receiving a driver’s licence after failing a driving test. Provided that the procedural requirement was fair

Page 9 of 42 Chapter 11 Court Management and Party Compliance in the first place, the consequence of default will also be fair. This does not mean that the consequences are immutable. Rather, it suggests a different approach to the imposition of the consequences. The court should ask itself whether the defaulting party had adequate opportunity to comply, whether there was a good explanation for the default, and whether the defaulter deserves another opportunity to comply with the requirements either because the opportunity given was insufficient or because the party was prevented by unavoidable circumstances from complying. As in any other context, de minimis procedural defaults,such as filing an interlocutory application at 2.10 pm instead of the ordered 2.00 pm, ought to be excused.

11.17 In some situations a litigant would have a right to receive an extension of time. For instance, a court would be wrong to withhold permission for late service of an expert report where the failure to meet the deadline for filing the report was due to the expert’s illness. The right to fair trial entitles litigants to a fair opportunity to comply with process requirements. A fair opportunity to comply implies a measure of leeway where it is necessary to enable litigants to overcome unavoidable obstacles. Where, however, the default is not the result of unavoidable circumstances, the discretion to excuse the default is, in reality, a discretion to make concessions, not a discretion to mitigate a punishment.

11.18 It must be borne in mind that the policy adopted by the court in relation to the exercise of its discretionary powers to make concessions for non-compliance with process requirements impacts on litigation culture as a whole. As observed in Chapter 1, 1.19 ff, the ease with which parties could obtain an extension of time for performing process requirements undermined the normative force of time limits under the Old System, and caused much unnecessary procedural complexity, delay and expense. The enhanced case management powers under the contemporary rules ought to be used to prevent these injustices from continuing into the future.

Judicial responsibility for outcomes limited to the evidence and arguments presented by the parties

11.19 A second feature of the Australian adversarial system is the limited judicial responsibility for outcomes. The role of the judge in this system is confined to arriving at a decision according to the evidence and arguments presented by the parties.To an

Page 438 extent, this feature is influenced by the notion of party autonomy considered above from 11.10 ff. Since the court generally has no power over the choice of issues to be litigated, no investigative powers, and no authority to direct the production of evidence against the parties’ wishes, it is hardly in a position to guarantee the correctness of the final judgment. The process of obtaining evidence and probing its reliability is conducted by the parties before the court, not by the court.29 Accordingly, the function of the judge in the Australian civil trial is to adjudicate upon the issues pleaded by the parties on the basis of the evidence presented by them.30

29 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; 228 ALR 387; [2006] HCA 32 at [15] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Huang v University of New South Wales (No 3) (2006) 154 FCR 16; [2006] FCA 626

. For the English position, see Chilton v Saga Holidays plc [1986] 1 All ER 841

.

Page 10 of 42 Chapter 11 Court Management and Party Compliance 30 Sharp v Rangott (2008) 167 FCR 225; [2008] FCAFC 45

; Channel Seven Sydney Pty Ltd v Senator Concetta

Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 at [49] per Giles JA. Cf Galea v Galea (1990) 19 NSWLR 263 at 282 per Kirby ACJ. See also Australian Law Reform Commission, What is the adversarial system of litigation? , Issues Paper 20, 1998; R Latham, ‘The Law and the Commonwealth’ (1937) 1 Survey of British Commonwealth Affairs 517. For the English position, from which the Australian adversarial model of litigation is derived, see Jones v National Coal Board [1957] 2 QB 55 at 240–1

; [1963] 3 All ER 191 at 210

at 63–4

per Denning LJ; Official Solicitor v K [1965] AC 201

per Delvin LJ. See also Air Canada v Secretary of State for Trade

(No 2) [1983] 2 AC 394 at 438 ; [1983] 1 All ER 910 at 919 per Wilberforce LJ; Commissioners of Customs and Excise v A & D Goddard (a firm) [2001] STC 725; Macdonald Estates plc v National Car Park Ltd [2010] SLT 36; [2009] CSIH 79; Al-Rawi v Security Service [2010] EWCA Civ 482 . See also F Pollock and F Maitland, History of English Law, 2nd ed, Cambridge University Press, London, 1968, 600 at 670–1; G Davies and J Leiboff, ‘Reforming the Civil Litigation System: Streamlining the Adversarial Framework’ (1994) 14 Proctor 18.

11.20 The adversarial character of adjudication is to a large extent the product of the jury system.31 Since juries had neither the expertise to direct the process nor the power to do so, their role was limited to adjudicating according to the evidence presented before them.32 Under this model, the arbiter of fact can no more take a hand in the contest than an umpire in a football match. While trial by jury has virtually disappeared from civil cases long ago, its legacy has outlived it.33 To this day, the

Page 439 process of adjudication takes place as a debate or contest conducted by the parties before an impartial and detached judge, whose responsibility is limited to deciding the case on the issues raised by the parties and according to the evidence presented by the parties.34 As Dawson J explained in Whitehorn v R:35 … a trial does not involve the pursuit of truth by any means … The adversary system is the means adopted and the trial judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party’s case is deficient the ordinary consequence is that it does not succeed.36

31 I Jacob, The Fabric of English Civil Justice, Stevens & Sons Ltd, London, 1987, p 5. 32 Legislation in each Australian jurisdiction highlights this. For example, s 72A of the Jury Act 1977 (NSW) provides for the oaths or affirmations jurors must give, namely: ‘I swear by Almighty God that I will give a true verdict according to the evidence’ (in the case of an oath) or ‘I solemnly and sincerely declare and affirm that I will give a true verdict according to the evidence’ (in the case of an affirmation). 33 Until 1854, trial by jury was the only form of trial used in any court of common law. During the second half of the century it became possible to opt by consent for a trial by judge alone. By 1883, trial by jury was obtainable as a matter of course only in six causes of action, while in all other cases it had to be specially asked for. In 1918, another cause of action was added to the list of causes for which there remained a right to trial by jury, while in all other cases it was made discretionary,and this legislation was substantially re-enacted in 1933. Jury trial declined because it was not being asked for by the parties: P Devlin, Trial by Jury (the Hamlyn Lectures for 1956, revised 1966), p 130. See also J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [11001]. The current Australian position reflects the reality that jury trials are declining in civil cases although they are still available.The actions in which a jury trial are still available vary from jurisdiciton to jurisdiction. In the Federal Court, a civil trial is by a judge alone unless a judge orders a jury trial: Federal Court of Australia Act 1976 (Cth) ss 39 and 40; in the Australian Capital Territory, a civil trial must be triedwithout a jury: Supreme Court Act 1933 (ACT) s 22; in New South Wales and the Northern Territory,a trial is by judge alone unless the court orders otherwise: Supreme Court Act 1970 (NSW) s 85; Juries Act 1962 (NT) s 7. See also Supreme Court Rules 1987 (NT) r 47.02; Uniform Civil Procedure Rules 1999 (Qld)

Page 11 of 42 Chapter 11 Court Management and Party Compliance r 472; Juries Act 1927 (SA) s 5; Supreme Court Rules 2000 (Tas) r 557;Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.02; Supreme Court Act 1935 (WA) s 42. 34 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; 228 ALR 387; [2006] HCA 32 at [15] Gummow, Hayne, Heydon and Crennan JJ; Giannerelli v Wraith (1988) 165 CLR 543 at 556 35 Whitehorn v R (1983) 152 CLR 657

per Gleeson CJ, per Mason CJ.

.

36 Whitehorn v R (1983) 152 CLR 657 at 682

per Dawson J.

11.21 It should be noted, however, that inquisitorial or non-adversarial proceedings are not unknown to Australian law. There are jurisdictions, such as the minor civil jurisdiction in South Australia, that require a judicial officer to adopt an inquisitorial role.37 Coronial investigations are also inquisitorial in nature.38

37 See, for example, Wilczynski v District Court of SA [2017] SASCFC 102

.

38 B Carpenter, G Tait, N Stobbs and M Barnes, ‘When Coroners Care Too Much: Therapeutic jurisprudence and suicide findings’ (2015) 24 Journal of Judicial Administration 172 at 175.

11.22 That judicial responsibility for outcomes is limited does not mean that the Australian justice system is indifferent to whether court judgments reflect the true facts. A system may show high commitment to the truth in ways other than imposing on its judges the responsibility for unearthing it. Australian procedure’s commitment to the ascertainment of truth is underscored by the extensive facilities that the rules of court place at the disposal of litigants to obtain documents and other information from parties and non-parties alike, including compulsory measures to protect evidence from being destroyed or otherwise tampered with. The fact that the judge’s duty is confined to deciding the issues according to the evidence presented by the parties has not misled Australian judges into thinking that the Australian process is unconcerned with the determination of truth. On the contrary, Australian courts often refer to the following passage of Lord Donaldson MR in Davies v Eli Lilly & Co39 with approval: … litigation is not a war or even a game. It is designed to do real justice between opposing parties and if the court does not have all the relevant information, it cannot achieve this object.40

Page 440

39 Davies v Eli Lilly & Co [1987] 1 WLR 428 40 Davies v Eli Lilly & Co [1987] 1 WLR 428

. at 431

cases including Stern v Sekers [2010] NSWSC 59 at [150] 294 at [61]

per Lord Donaldon MR, which has been cited in numerous per Ward J; Hodgson v Amcor Ltd (No 10) [2012] VSC

per Vickery J; Harwood v The Trustee of the Property of John Mervyn Harwood (2015) 297 FLR 159;

[2015] FCCA 1058 at [25]

per Manousaridis J; Clone Pty Ltd v Players Pty Ltd (in liq) (recs apptd) (2016) 127 SASR

1; [2016] SASCFC 134 at [115]

per Blue J.

Page 12 of 42 Chapter 11 Court Management and Party Compliance

Managerial judges and the adversary system

11.23 The modern court rules have not altered the principles of party autonomy and of limited judicial responsibility for outcomes. But the new system has encroached on the third feature of the adversarial system, namely, party control of the litigation process. Today, the court rather than litigants controls the process. The court has extensive powers to influence the nature and pace of proceedings. It no longer has to wait for parties to make applications in order to progress litigation or determine the means by which the case is to be resolved. It may give directions of its own motion, for example.41

41 Federal Court Rules 2011 (Cth) r 5.04; Court Procedures Rules 2006 (ACT) r 1401; Uniform Civil Procedure Rules 2005 (NSW) r 2.1; Supreme Court Rules (NT) r 34.01; Uniform Civil Procedure Rules 1999 (Qld) r 366(2); Supreme Court Civil Rules 2006 (SA) rr 10, 117 and 364; Supreme Court Rules 2000 (Tas) r 9; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 34.01; Rules of the Supreme Court 1971 (WA) r 2(1).

11.24 It has been suggested that the idea of judges taking a hand in shaping the litigation process is inimical to the adversarial nature of the civil procedure.42 Some believe that in an adversarial system parties should have the freedom to manage their own litigation as they see fit. The reasoning behind this view is that since the courts do not take it upon themselves to investigate the issues but confine themselves to the role of impartial umpires, litigants must have a free hand in the preparation and presentation of their case. Thus, it is thought that if the parties have a right to disclosure of relevant documents, it is not for the court to circumscribe access to such documents. Nor should a court tell the parties that the importance of their case or the nature of its issues does not justify the extensive and expensive procedural steps they propose to take. In an adversarial system,the argument concludes, litigants should be free within the parameters of the permissible to exploit to their own advantage the procedural devices that the law provides because they know best what is in their best interest.43

42 N Andrews, ‘The Adversarial Principle: Fairness and Efficiency: Reflections on the Recommendations of the Woolf Report’ in A Zuckerman and R Cranston (eds), Reform of Civil Procedure: Essays on Access to Justice, Oxford University Press, Oxford, 1995, p 169. See also L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353; J Langbein, ‘The German Advantage in Civil Procedure’(1985) 52 University of Chicago Law Review 823; R Allen, S Kock, K Riechenberg and D Rosen, ‘The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship’(1988) 82 Northwestern University Law Review 705; N Brooks, ‘The Judge and the Adversary System’ in A Linden (ed), The Canadian Judiciary, Osgoode Hall Law School, York University,Toronto, 1976, p 90. For a survey of the arguments, see P Sallmann, ‘Observations on Judicial Participation in Caseflow Management’ (1989) 8 Civil Justice Quarterly 129. 43 M Zander, ‘The Woolf Report: Forwards or Backwards for the New Lord Chancellor?’ (1997) 16 Civil Justice Quarterly 208.

11.25 Complete litigant freedom, it must be stressed, did not exist even in the Old System. Procedural freedom needs to be circumscribed just like any other freedom because unlimited freedom for one party can mean injustice or the denial of procedural

Page 13 of 42 Chapter 11 Court Management and Party Compliance

Page 441 justice for the opponent. Most modern procedures impose time limits because without them the system would not provide for the effective vindication of rights. Even King Solomon would have been unable to adjudicate between the two harlots without first imposing a process to be followed.44 The court has always been ultimately in control of its own procedures, both at the rule and practice direction making level, and at the individual case level. Rules of procedure have always defined the means that parties may employ in litigation,and the court has always exercised considerable discretion in enforcing compliance with rules and court orders. Although Old System powers were not referred to as ‘case management powers’, in substance the court carried out a managerial function whenever it was asked by a party to extend a deadline, forgive a default, or authorise a particular step be taken. In sum, the adversarial system has always allowed for judicial discretion in matters of procedure, the exercise of which is capable of influencing the outcome of litigation.

44 Old Testament, I Kings 3:16–28.

11.26 Modern court rules in Australia depart from the Old System in two important respects. First, the court has a more prominent role in dictating the nature of the process and its timetables, and as a result, there is likely to be a lower tolerance of party failure to comply with time limits. For the reasons just mentioned, this is not as radical a change as might first be thought. The second innovation does, however, represent a more substantial change. It is the overriding objective of civil procedure, which subjects party freedom to a general standard of proportionality. The idea at the basis of the overriding objective is that parties cannot be allowed the freedom to obstruct an otherwise expeditious resolution of disputes. This is not just a matter of timetables. In order to ensure timely justice, the court must limit other freedoms, such as the freedom to decide the extent of discovery or the freedom to choose how many expert witnesses to call. A system in which parties are allowed unlimited choice in the means of arguing their case is bound to allow parties to complicate or slow the process to the point where the court is no longer able to dispense practically meaningful justice.45 As Mortimer J reflected in Polan v Goulburn Valley Health (No 2),46 ‘The dispute between the parties must be brought to an end, as the costs, resources and time have become disproportionate to the sums involved.’47

45 For the use of delay as a weapon, see R Tomasic and B Petony, ‘Resisting to the Last Shareholders’ Dollar: Takeover Litigation — a Tactical Device’ (1992) 1 Australian Journal of Corporate Law 154. 46 Polan v Goulburn Valley Health (No 2) [2017] FCA 30

.

47 Polan v Goulburn Valley Health (No 2) [2017] FCA 30 at [111]

per Mortimer J.

11.27 The overriding objective acknowledges that party freedom to dictate the progress of litigation is not a central requirement of doing justice. ‘Ultimate responsibility for the control of litigation’, Lord Woolf said, ‘must move from the litigants and their legal advisers to the court’.48 By means of judicial control, the court is now able to control the nature and extent of the procedure to be followed and, thereby, the amount of the forensic input and the cost of litigation.49 Under the rules of court, the court has

Page 442 the power to adapt process to dispute in order to ensure that the procedure followed in any given case is proportionate to the needs of the case. Further, the court is able to monitor the progress of the litigation from an early stage and enforce compliance with timetables. The court’s power to impose time limits supplements the time

Page 14 of 42 Chapter 11 Court Management and Party Compliance limits imposed by the rules. To bolster the binding effect of timetables, the rules of court limit party freedom to change them and provide the court with a wide choice of responses to party non-compliance.

48 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Final Report), 1996, Ch 1, [1]. 49 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice, Interim Report), June 1995, Ch 3, [24].

The Old System approach to non-compliance — a normative deficit

11.28 To understand the contemporary approach to party non-compliance, one must first understand how the new system of civil justice seeks to rectify the shortcomings of the Old System. Although attention has already been drawn to the defects of the Old System in Chapter 1, 1.9 ff, a short account is provided below to place the current case management rules in their proper context.

11.29 The Old System was marred by the way in which the system of administration of justice was managed. The courts had few case management powers to control the conduct of proceedings. As a result, time and resource constraints were largely ignored and the chief focus of procedure including litigation was to do justice on the merits at all costs. This was most prominent in the court’s responses to party non-compliance with rules and court orders. In particular, it was common for the court to allow last minute amendments to pleadings which consequentially disrupted timetabling including trial,50 forgive inordinate delay to take procedural steps, which in some cases was many years,51 make orders for extensions of time when the relevant party had already had sufficient time to comply with procedural requirements,52 allow applications for extensive delivery on issues of peripheral relevance at the expense of the party required to give discovery,53 and otherwise impose no consequence for the

Page 443 late performance of process requirements.54 For further discussion on the Old System and its attributes including the poor management of cases, see Chapter 1, 1.9 ff.

50 Shannon v Lee Chun (1912) 15 CLR 257 51 Berrigan v McIver [1974] VR 811

.

; Rust v Barnes [1980] 2 NSWLR 726

.

52 Lamshed v Lamshed [1962] SASR 190 ; David v National Panasonic (Australia) Pty Ltd (Supreme Court of New South Wales Court of Appeal, 23 September 1965, unreported) was an appeal allowed against an order made by a judge refusing an extension of time. In allowing the appeal, Kirby P said: ‘It is true that in recent years the courts have been more willing than once they were to exercise the power to extend time. The reduction in rigidities of court procedure and pleading are a major feature of changes in the administration of justice in recent years’; Wiedenhofer v Commonwealth [1970] HCA 54; (1970) 122 CLR 172; [1972] ALR 244 NSWLR 126.

; Douglas v John Fairfax & Sons Ltd (1983) 3

53 Examples include Scott v City of Castlemaine [1972] VR 570 at 575–6

per Barber J; Wellcome Foundation Ltd v VR

Laboratories (Aust) Pty Ltd (1980) 29 ALR 261 at 264–5; (1980) 42 FLR 266 at 269–71 per Franki J. Wide discovery was ordered in early cases which adopted a liberal interpretation of the ‘train of inquiry’ test stated in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

at 63

per Brett

Page 15 of 42 Chapter 11 Court Management and Party Compliance LJ. See also G Davies and S Sheldon, ‘Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale’ (1993) Journal of Judicial Administration 111 at 117–19;G Davies, ‘A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale’ (1996) 5 Journal of Judicial Administration 201 at 204. Also see Queensland Litigation Reform Commission, Annual Report 1995-1996, 1996, pp 2–4, 9–10; G Davies, ‘The Reality of Civil Justice Reform: Why we must abandon the essential elements of our system’, paper presented at 20th Australian Institute of Judicial Administration Annual Conference, Brisbane, 12–14 July 2002, pp 6–8. 54 Neville v Handley (1888) 14 VLR 270

; Rust v Barnes [1980] 2 NSWLR 726

.

Justice is either managed or mismanaged

11.30 It needs to be stressed that the main lesson to be drawn from the failings of the Old System is that passive court involvement in the litigation process results in mismanagement of the administration of civil justice. A key observation of the Old System is that courts would not influence the pace and intensity of the pre-trial process and would generally only intervene when a party made an application. When the courts did intervene, their approach to compliance with rules and court orders was both relaxed and somewhat haphazard such that the litigation procedure could easily be derailed by failures to perform process requirements by satellite and interlocutory disputes over matters of little consequence.

11.31 Where the court leaves control of the litigation process to the parties, each party will inevitably pursue the course that best promotes its own interests, which may or may not be consistent with the fair and expeditious resolution of the proceedings.Even if one party is willing to bring the case to a speedy conclusion, the opponent could well have other ideas. The phrase ‘delay is the defendant’s friend’ reflects the liberty defendants were able to take in the Old System to postpone and disengage with the litigation process.55 Quite apart from delaying practices, litigants are poorly placed to appreciate the court’s administrative constraints. They have no information of overall caseloads, the availability of judicial resources including judges and courtrooms,or of budgetary constraints. Even if they had such information, they would be in no position to put it to good use because adequate management of resources necessitates centralised policy making and a well-managed implementation of these policies. Thus it was not so much that under the Old System there was no court control of litigation, but rather that there was poor management that failed to deliver a satisfactory service of civil litigation as the demands of the justice system increased.

55 D Hamburg, ‘A Broken Clock: Fixing New York’s Speedy Trial Statute’ (2015) 48 Columbia Journal of Law and Social Problems 223 at 232.

11.32 Once it is accepted that adjudication of civil disputes is a public service maintained for the benefit of the community as a whole, it follows that its provision must be managed for the general good. This is now implicit in the overriding objective and is well understood by the courts. What is, however, less well appreciated is that court management of litigation means not just management of individual disputes but also the continual review of the performance of the system as a whole and periodic adjustment to respond to emerging problems. Court management of litigation is inevitably case-based but if it is to achieve satisfactory results it must be guided by general principles and be committed to achieving certain standards of efficiency. The Old System presents a cautionary tale in this regard. It had developed principles but with no regard to overall efficiency.

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Page 16 of 42 Chapter 11 Court Management and Party Compliance

Procedural judges

11.33 Case management decisions may be made at any stage in the proceedings by any judicial officer of the court. In practice, the pre-trial process is generally largely managed by procedural judges, such as the masters in some Supreme Courts and the justices in the Federal Court of Australia under the docket system. It has been suggested that considerable judicial involvement in the pre-trial process could undermine judicial impartiality.56 However, the risk of partiality is no greater when judges exercise case management powers than when they discharge any other judicial function. It is incumbent on judges to keep an open mind and be amenable to argument at any stage in the proceedings. Thus, a judge who has read the parties’ evidence and arguments in advance of the trial must continue to be open to persuasion, no matter how strongly he or she holds his or her preliminary view. It is true that some management decisions can have far-reaching effects on outcome but provided that judges account for their decisions by giving adequate reasons, the risk of untoward influence should be overcome, as Ian Scott explained.57

56 J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374; M Zander, ‘The Woolf Report: Forwards or Backwards for the New Lord Chancellor’ (1997) 16 Civil Justice Quarterly 208 at 214. 57 I Scott, ‘Caseflow Management in the Trial Court’ in A Zuckerman and R Cranston (eds), Reform of Civil Procedure: Essays on Access to Justice, Oxford University Press, 1995, p 27.

Case management and the overriding objective

11.34 As discussed in Chapter 1, case management powers in each jurisdiction are required to be exercised to promote the overriding objective. This mandates that the court must manage cases by implementing the most just, expeditious and economical procedure in the circumstances to resolve the dispute. The overriding objective embodies general principles that take precedence over individual rules. Indeed, the overriding objective guides judges to determine the application of particular rules. The seminal case on the overriding objective is Aon Risk Services Australia Ltd v Australian National University,58 which is discussed in detail in Chapter 1, 1.57 ff. In finding that a last minute amendment should not have been allowed, Gummow, Hayne, Crennan, Kiefel and Bell JJ stressed that: [W]hat is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon repleading, when delay and cost are taken into account.59

58 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

59 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [98]

11.35

per Gummow,Hayne, Crennan, Kiefel and Bell JJ.

Page 17 of 42 Chapter 11 Court Management and Party Compliance The High Court’s judgment in Aon represented a paradigm shift in Australia. Courts are no longer focused on achieving justice on the merits at all costs, as was customary under the Old System of civil justice. Rather, the courts now

Page 445 accept that a ‘just’ resolution isn’t just one that elucidates the truth but is one that achieves a just outcome in proportionate time and expense. After Aon, the High Court delivered its judgment in Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,60 which is discussed in detail in Chapter 1, 1.58 ff. In determining whether waiver of legal professional privilege had occurred in circumstances of inadvertent disclosure, the High Court applied the overriding objective to conclude there had been no such waiver and made comments about how satellite disputes over such issues are the antithesis of the overriding objective: Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in the circumstances … The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.61

60 Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46

.

61 Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46 at [56]–[57]

per the court.

Court control over time limits

11.36 Since it is the court’s responsibility to ensure that litigation progresses expeditiously, the parties’ freedom to determine the litigation timetable and decide the periods for completing specific process requirements is now fairly limited. The parties’ freedom to agree or vary time limits is addressed in the rules of court.62

62 Federal Court Rules 2011 (Cth) r 1.39; Court Procedures Rules 2006 (ACT) r 6351; Uniform Civil Procedure Rules 2005 (NSW) r 1.12; Supreme Court Rules (NT) r 3.02; Uniform Civil Procedure Rules 1999 (Qld) r 7; Supreme Court Civil Rules 2006 (SA) r 117(2)(b); Supreme Court Rules 2000 (Tas) r 52; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 3.02; Rules of the Supreme Court 1971 (WA) O 3 r 5.

11.37 A number of rules limit the scope for agreed changes of time limits. For example, in the High Court, where a defendant has been served with an application for special leave, it must file and serve on the plaintiff within 14 days a notice of appearance.63 Another example is the time limit of 30 days after service of the statement of claim to file a defence in Victoria.64 Given that the dates of the principal stages of litigation (case management conferences and directions hearings, readiness for trial, and the trial) are fixed by the court, the scope for agreed changes to the times for the performance of process requirements is circumscribed. The parties have some leeway for agreeing the periods for completing various procedural steps, but it is strictly circumscribed by court-imposed timetables, which they cannot radically alter by agreement amongst themselves. It would, for instance, require a very strong case for a trial to be adjourned merely because a party’s disclosure was a more extensive task than originally contemplated.

Page 18 of 42 Chapter 11 Court Management and Party Compliance

Page 446

63 High Court Rules 2004 (Cth) r 41.04. 64 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 14.04.

11.38 There is nothing to prevent parties from making agreed applications for extending the time for the performance of any process requirement or for the postponement or adjournment of any hearing. However, if the court were to accede to such applications as a matter of course, the overriding objective may be defeated, the result of which would be an even less satisfactory system than that which existed in the Old System.65 For not only would the parties be able to dictate the pace of litigation, but the cost of doing so would increase due to the need to apply to court for the approval of the parties’ agreements. To avoid such an unfortunate outcome the discretion to extend time limits must be carefully exercised, always with a view to furthering the overriding objective.

65 See Chapter 1, 1.1 ff.

11.39 Given that under the rules the court is involved with case management from an early stage, the jurisdiction to extend time limits will not normally give rise to serious problems. Case management directions will usually reflect the procedural needs of the case and the parties’ ability to fulfil their part. If the parties encounter difficulties in complying with time limits, the court would normally be able to accommodate them. Inevitably, there are bound to be cases where one or other of the parties has persistently failed to meet time limits and the court will be called upon to decide how to deal with tardy performance of process requirements. Such situations may represent a small minority of the cases that come before the court,but the way in which they are resolved is bound to have farreaching consequences and influence the litigation culture generally. If litigants and their advisers perceive that a failure to meet time limits is easily overlooked, parties would tend to regard deadlines less seriously than if they knew that their defaults will carry serious consequences. The task of striking an appropriate balance between an unreasonably inflexible approach and an excessively forgiving approach is not easy, especially since matters tend to come to a head in difficult cases where appeals to sympathy or mercy may be difficult to resist.

11.40 The court’s powers to extend time limits are broad but not unfettered.66 As explained by Ipp JA in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq):67 The discretion is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions.68

In CDJ v VAJ, 69 Gaudron J stated that a discretion such as the power to grant extensions of time ‘is governed by the requirement that it be exercised judicially and consistently

Page 447

Page 19 of 42 Chapter 11 Court Management and Party Compliance with the judicial process’.70 The exercise of the discretion to extend time can only be exercised judicially and consistently with the judicial process if it is consistent with the overriding objective.71 In Queensland, for example, Keane J held that the plaintiffs could not apply for an extension of time as it would have enabled them ‘unilaterally to arrogate to themselves the benefit of a stay of proceedings in the Supreme Court in defiance of r 5(3) of the UCPR’.72

66 Victa Ltd v Johnson (1975) 10 SASR 496 at 503 at [189] 11

per Bray CJ; Foxe v Brown (1984) 59 ALJR 186; [1984] HCA 69

per Mason J; Van Leer Australia Pty Ltd v Palace Shipping KK (1991) 180 CLR 337 at 343–4; [1991] HCA per Stephen J.

67 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

.

68 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

.

69 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

.

70 CDJ v VAJ (1998) 197 CLR 172 at 185; [1998] HCA 67 at [53]–[54]

per Gaudron J.

71 The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qd R 148 at [57]

, 161 per Keane JA.

72 The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qd R 148

.

11.41 In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq),73 Ipp J set out that when considering an application to extend time, the court should consider: [T]he attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.74

73 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

.

74 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at[43] J.

per Ipp

11.42 The power to extend time limits must be exercised with circumspection. A refusal to extend the time for the performance of process requirements may mean that a party is not allowed to call a witness or an expert whose statement or report the party failed to file in time. This may have fatal consequences for the affected party’s case. While decisions of this kind must be case-dependent, they also have to reflect a consistent application of principles. In order to promote a measure of consistency, the jurisdiction to extend time limits has been effectively integrated

Page 20 of 42 Chapter 11 Court Management and Party Compliance with the jurisdiction to grant relief from sanctions.

Consequences of failure to comply with process requirements

11.43 A rough distinction may be drawn between predetermined consequences of party default, and consequences that are determined by the court in response to the default. The consequences of non-compliance with process requirements are sometimes stated by general rules. For example, r 24.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that where a party fails to comply with an order to give particulars, for the discovery or inspection of documents, or for answers to interrogatories, the court may dismiss the plaintiff’s claim or strike out the defendant’s defence. Oftentimes, the consequences of non-compliance fall to be determined by the court. In practice, this distinction is of no great significance because the court has discretion to grant relief from sanctions.

Page 448

Conditional orders — predetermined consequences of party non-compliance

11.44 The court may by order stipulate the consequences of non-compliance in what is known as a conditional order. Conditional orders are also known as ‘unless’,75 ‘peremptory’,76 ‘self-executing’,77 ‘springing’78 or ‘guillotine’79 orders. A conditional order is a court order that directs a party to perform a process requirement or requirements by a certain date and which specifies the consequences of defaulting.80 For example, an order may state that unless the plaintiff pays a taxed interlocutory costs order by a certain date, the proceedings stand dismissed.81 As Wilcox and Gummow JJ said in Lenijamar Pty Ltd v AGC (Advances) Ltd:82 … the power given by the rule is conditional on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion.83

75 Gamble v Killingsworth [1970] VR 161 76 LFDB v SM [2017] FCAFC 178 at 40

. .

77 S Colbran, P Spender, R Douglas and S Jackson, Civil Procedure: Commentary and Materials, 6th ed, LexisNexis Butterworths, Sydney, 2015, pp 212–13; B Cairns, Australian Civil Procedure, 11th ed, Lawbook Co, Sydney, 2016, [2.1080]–[2.1100] pp 134–6. 78 LFDB v SM [2017] FCAFC 178 at 40 per McCallum J.

; Gayle v Fairfax Media Publications Pty Ltd [2017] NSWSC 1261 at [12]

79 Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572 at [15] [2017] NSWSC 1382 at [67] per Garling J.

per Rares J; Huang v Attapallil (No 2)

80 Federal Court Rules 2011 (Cth) rr 1.42 and 5.21; Court Procedures Rules 2006 (ACT) rr 1451–1452; Civil Procedure Act 2005 (NSW) s 86; Supreme Court Rules (NT) r 24.02; Uniform Civil Procedure Rules 1999 (Qld) r 374; Supreme Court Civil Rules 2006 (SA) rr 116(2) and 117; Supreme Court Rules 2000 (Tas) r 372; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 24.02, 24.05 and 29.12.1; Rules of the Supreme Court 1971 (WA) O 4A r 23.

Page 21 of 42 Chapter 11 Court Management and Party Compliance 81 Welsh v Digilin Pty Ltd (ACN 078 278 449) [2008] FCAFC 149

.

82 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

.

83 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395–6

per Wilcox and Gummow JJ.

11.45 The power to make conditional orders is not new. It has always been one of the principal instruments by which the court controlled its proceedings.84 Now that the court has a responsibility for actively managing cases, the conditional order assumes a more prominent role, since it can be used to prevent recalcitrant parties from defeating the court’s efforts to implement the overriding objective. Conditional orders are increasingly popular since they allow the court to satisfy the defaulting party’s desire to proceed to adjudication on the merits while reat significance because the court has discretion to grant relief from sanctions.85

Page 449

84 For a review of the history of conditional orders dating back into the nineteenth century, see Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 3 All ER 365 at [11]–[14] 85 Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388

.

.

11.46 While courts have indicated that they should be cautious to make conditional orders which bind what is otherwise an evaluative discretionary judgment of the court in advance without knowing what the future may hold, they are a mechanism by which to promote the overriding objective of Australian civil procedure.86 Accordingly, if a party has been guilty of procedural default, the court may impose conditions on the party’s continued participation in the litigation process. Wilcox and Gummow JJ said in Lenijamar Pty Ltd v AGC (Advances) Ltd:87 [T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases — whatever the applicant’s state of mind or resources — in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.88

86 Gayle v Fairfax Media Publications Pty Ltd [2017] NSWSC 1261 at [12] 87 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

.

88 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396

Conditional orders as a case management tool

per McCallum J.

per Wilcox and Gummow JJ.

Page 22 of 42 Chapter 11 Court Management and Party Compliance

11.47 The power to make conditional orders provides the court with a useful case management tool. A distinction must be drawn between conditional orders made for case management purposes and conditional orders made to secure compliance with orders or judgments directing the payment of money by one litigant to another. The latter are in essence payment enforcement orders. A management order would be, for instance, an order making permission for late service of particulars of claim conditional on payment into court. A conditional payment enforcement order would be used where the court grants permission to appeal conditional on the appellant complying with the money judgment entered against it by the lower court, or paying a sum of money into court as security for costs. The considerations pertinent to conditional management orders are quite different from those pertinent to enforcement orders. This section is concerned with conditional management orders.

11.48 The jurisdiction to make orders subject to conditions is a useful case management tool. It enables the court to respond flexibly to party default and fashion the solution which is most appropriate in the circumstances and which does justice to both parties. But it is not without risk, for it is possible that the conditions imposed could themselves give rise to procedural wrangling.

11.49 The court must not impose on a party a condition of payment that it knows that the party cannot meet, for such a stipulation would effectively prevent the party from continued participation in the proceedings and would therefore amount to a denial of the party’s right of access to justice.89 An amendment at a late stage would normally be subject to a condition that the claimant pays the defendant’s wasted costs, or at least pay money into court as security for costs. If the court were to dispense with this condition due to the claimant’s impecuniosity, it could be inflicting an injustice

Page 450 on the defendant. The court is therefore faced with a choice of either refusing the claimant permission to amend, or forcing the defendant to incur further expenditure even though it cannot realistically expect to recover the costs it has already wasted due to the claimant’s faulty presentation of the claim. The choice between these alternatives may be difficult and call for fine judgment.

89 MV Yorke Motors Ltd v Edwards [1982] 1 All ER 1024; [1982] 1 WLR 444 Kermanshahchi [2002] EWHC 3152; [2002] All ER 135.

(HL)

; Anglo-Eastern Trust Ltd v

Predetermined consequences take effect automatically, subject to relief from sanctions

11.50 The rules of court contain various predetermined consequences which take effect automatically, subject to relief from sanctions. For example, if the defendant is served with the plaintiff ’s claim but decides not to contest the claim or even respond, then the automatic consequence is that the defendant will become liable to default judgment.90 Another example is where the plaintiff is required to take a procedural step, such as file or serve its claim, but fails to do so within the time stipulated within the rules; then the automatic consequence is that the claim will be struck

Page 23 of 42 Chapter 11 Court Management and Party Compliance out for want of prosecution.91 In a similar vein, when the court has made a conditional order and the condition has not been satisfied, the consequences take effect immediately.

90 The Federal Court Rules 2011 (Cth) provide that judgment may nevertheless be given but for damages to be assessed, or any other order: r 5.23(2)(d). In any event, the Federal Court may make any order it considers appropriate in the interests of justice (r 1.32), including an order that is inconsistent with the rules (r 1.34). See also Court Procedures Rules 2006 (ACT) r 1122; Uniform Civil Procedure Rules 2005 (NSW) r 16.7; Supreme Court Rules (NT) r 21.03(b); Uniform Civil Procedure Rules 1999 (Qld) r 284; Supreme Court Civil Rules 2006 (SA) r 229(1)(b); Supreme Court Rules 2000 (Tas) r 348; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.03(1)(b); Rules of the Supreme Court 1971 (WA) O 13 r 3. 91 High Court Rules 2004 (Cth) r 27.09.7; Federal Court Rules 2011 (Cth) r 5.22; Court Procedures Rules 2006 (ACT) r 1110(1); Uniform Civil Procedure Rules 2005 (NSW) r 12.7; Supreme Court Rules (NT) r 24.01; Uniform Civil Procedure Rules 1999 (Qld) r 280; Supreme Court Civil Rules 2006 (SA) r 123(1); Supreme Court Rules 2000 (Tas) r 265(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.01; Rules of the Supreme Court 1971 (WA) O 33 r 2.

Relief from sanctions Power to revoke and vary orders and judgment

11.51 Rules of court in Australia contain a power for the court to revoke or vary orders it has made. In some jurisdictions, rules draw a distinction between orders, including judgment, that have not been entered, and orders and judgment that are entered. In these jurisdictions, a court has a broad power to vary or set aside orders made before they are entered.92 However, the power with respect to varying or revoking judgment or orders after they are entered is generally more confined.93

Page 451 In other jurisdictions, the rules contain powers to set aside, vary or revoke specific orders, such as summary judgment, default judgment, and orders with respect to discovery and interrogatories.94 It is important to stress that these are case management powers that are principally applicable to orders made under the rules of court.

92 Federal Court Rules 2011 (Cth) r 39.04; Court Procedures Rules 2006 (ACT) rr 1401(7) and 1613(1); Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 and 36.16(1); Supreme Court Civil Rules 2006 (SA) r 117(2) and (4); Supreme Court Rules 2000 (Tas) r 426. 93 Federal Court Rules 2011 (Cth) r 39.05; Court Procedures Rules 2006 (ACT) r 1613(1); Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2); Supreme Court Civil Rules 2006 (SA) rr 117(4) and 242. 94 See, for example, Court Procedures Rules 2006 (ACT) r 1128 (default judgment) and r 1155 (summary judgment); Supreme Court Rules (NT) r 7A.12 ; Uniform Civil Procedure Rules 1999 (Qld) r 56(7) (vary an order or decision made on an application for directions); Supreme Court Civil Rules 2006(SA) r 41L (set aside default judgment); Supreme Court Rules 2000 (Tas) r 397 (discovery and inspection); Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 21.07 (summary judgment) and r 29.12(6) (strike-out following failure to give discovery); Rules of the Supreme Court 1971 (WA) O 26A r 10 (revoking and varying orders with respect to interrogatories) and O 13 r 14 (default judgment).

11.52 Although the consequences are automatic when the condition in a conditional order is not satisfied, there are potential avenues of relief available to an affected party. For example, if the conditional order was made in error or an injustice has flowed from the order, the court may be able to grant relief by extending the time within which to

Page 24 of 42 Chapter 11 Court Management and Party Compliance comply with the condition. For example, in Freeman v Rabinov,95 the court made an order that the plaintiff ’s action would not be dismissed and their defence to the counterclaim not be struck out on condition that the plaintiff serve an additional affidavit of documents. While the plaintiff provided the affidavit within time, the affidavit was deficient in that it was not sworn properly. The plaintiff applied for an extension of time within which to comply with the conditional order but this was refused and judgment was entered for the defendants on the counterclaim. The Full Court of the Supreme Court found that, although the affidavit was not sworn in the proper form and was provided in proper form about a month late, the defendants now had the relevant documents. The Full Court held that the plaintiff was at risk of suffering an injustice as the self-executing order resulted in a judgment for damages which was substantial. The appeal was allowed and the time limit within which to comply with the condition was extended to avoid the injustice to the plaintiff.

95 Freeman v Rabinov [1981] VR 539

.

11.53 In FAI General Insurance Company Ltd v Southern Cross Exploration NL,96 the High Court considered whether the court was able to allow an application extending time to comply with a conditional order. The relevant power is now in r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW). The court held that it was permissible to extend the time within which to comply with a conditional order including after the time had expired. Wilson J said: The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.97

Page 452 There are also rules in some jurisdictions which expressly allow a party to vary or revoke judgment entered on noncompliance with a conditional order.98

96 FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

.

97 FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283–4 See also Freeman v Rabinov [1981] VR 539

per Wilson J.

.

98 Court Procedures Rules 2006 (ACT) r 1128; Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2); Supreme Court Rules (NT) r 24.06; Uniform Civil Procedure Rules 1999 (Qld) r 290; Supreme Court Civil Rules 2006 (SA) r 230; Supreme Court Rules 2000 (Tas) r 235; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 24.06(b).

11.54 It goes without saying that the power to vary or revoke orders must be exercised with the view of furthering the overriding objective. Notwithstanding the flexibility of the power, restraint in its exercise is paramount. If the court could easily be persuaded to revoke case management directions it will become easy to thwart case management timetables and plans, and hold up the orderly progress of a case. This would defeat the overriding objective rather than promote it.

Page 25 of 42 Chapter 11 Court Management and Party Compliance

Discretionary court responses to party default

11.55 The court has power to remedy procedural defects and to grant extensions of the time periods for the performance of process duties. These powers must be exercised by reference to the relevant court rules and must be guided by the overriding objective. Since the modern rules of court establish a new regime for dealing with party default, the authorities from the Old System are no longer of relevance to the approach to be taken to non-compliance with process requirements generally, and with time limits in particular.99

99 Expense Reduction Analysists Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; 303 ALR 199; [2013] HCA 46 All ER 934; [1999] 1 WLR 1926

. For an English decision on this point, see Biguzzi v Rank Leisure [1999] 4

.

11.56 The knowledge that disregard of rules or court orders may result in adverse consequences for the defaulting party should operate as an incentive for timely compliance and foster a culture of observance of process requirements. To promote a culture of compliance, the court must deliver an appropriate message to litigants. The message was provided by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Management Services Australia Ltd v Australian National University,100 when their Honours explained that in ‘the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone’.101 The extent to which this message is followed in practice depends on the court’s ability to respond to party default in a coherent, predictable and just manner.

Page 453

100 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27

.

101 Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; [2009] HCA 27 at [113]

per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

Proportionality and discretion in enforcing rules and orders

11.57 The overriding objective requires case management decisions and orders to be made in accordance with the principle of proportionality.102 Proportionality requires that rules of process must be suitable, cost-efficient and necessary measures for regulating the litigation process. By their very nature, rules of process impose restrictions on the conduct of litigation, such as time limits for fulfilling process requirements and requiring the parties to give discovery. In Yara Australia Pty Ltd v Oswal,103 Redlich and Priest JJA and Macaulay AJA referred to a passage in the Second Reading Speech relating to the Civil Procedure Act 2010 (Vic) in which the Attorney-General made a connection between this overarching obligation and the need for proportionate procedures to be adopted: At the core of these reforms is the concept of proportionality. Participants in litigation will be required to use reasonable

Page 26 of 42 Chapter 11 Court Management and Party Compliance endeavours to ensure that legal and other costs spent in the proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute, and the amount in dispute. The courts will also be required to deal with a civil proceeding in the same manner.104

It is therefore perfectly legitimate to deny a litigant a trial on the merits when it has been granted an opportunity for trial but has chosen to forfeit it by defying the court management orders.105

102 See Chapter 1, 1.66 ff. 103 Yara Australia Pty Ltd v Oswal (2013) 41 VR 302

.

104 Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at 306

[7] per Redlich and Priest JJA and Macaulay AJA.

105 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 of JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411

. See also the English decision

.

11.58 Proportionality similarly requires that case management orders should be reasonably proportionate to the purpose for which they are made.106 For instance, case management timetables must afford litigants a reasonable time for compliance with process requirements. Similarly, courts must not order disproportionate discovery when targeted discovery, such as to specified categories,is reasonable and appropriate in the circumstances. In NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd,107 Master Luppino explained: The current application is by the Second Defendant seeking orders for security for costs and particular discovery. All parties agree that general discovery will involve a very large number of documents. The Plaintiff says that unrestricted general discovery would result in costs of the order of $100,000 for discovery alone. Taking that at face value for the purposes of argument, in absolute terms that figure is unusually high but it also represents approximately 10% of the quantum of the claim on the Plaintiff’s case and 20% if the Second Defendant’s assessment is correct. It represents a significant proportion of the maximum potential judgment amount and more so in respect of a

Page 454 favourable result for the Defendants. That demonstrates an obvious need to limit discovery so that a level of proportionality consistent with modern case management is achieved.108

As such, before making a management order, the court must therefore consider its consequences as a whole.109 It would be disproportionate, for example, if the most trivial instance of non-compliance led to a dismissal of a litigant’s case and judgment to the defendant on a counterclaim.110

106 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 107 NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd [2016] NTSC 44

.

108 NT Recycling Solutions Pty Ltd v Environbank NT Pty Ltd [2016] NTSC 44 at [3] 109 Burton v Gulamali [2006] All ER (D) 44 (Feb). 110 Freeman v Rabinov [1981] VR 539

.

.

per Master Luppino.

Page 27 of 42 Chapter 11 Court Management and Party Compliance

11.59 However, the use of the concept of proportionality in the exercise of the court’s power to grant extension of time for the fulfilment of process requirements, or allow litigants further opportunities to comply after they had failed to do so, gave rise to considerable confusion and trouble. The source of confusion lies in a failure to distinguish between two different questions. The first question concerns the reasonableness of a particular rule or a particular management order. Similarly,when the court makes a management order it must, as just noted, ensure that it is reasonable and proportionate. It must, for instance, ensure that the time allowed for disclosure is proportionate to the volume of documents and to difficulty of search.But there is a second and quite different question: what should the court do when a litigant has failed to comply with a management order which was reasonable and proportionate when made?

11.60 Reasonableness and proportionality in the enforcement of rules and court orders raise quite different issues. Where the court is considering whether to grant an applicant more time to comply, or a further opportunity having already failed to comply, the starting point is to ask why, having been given a reasonable opportunity to comply, the litigant deserves more time or a further opportunity to comply? Where the litigant has encountered unforeseen difficulties in compliance, more time must be given, all else being equal. To refuse longer time for compliance in such circumstances would be disproportionate to the aim of resolving the dispute efficiently and within a reasonable time, especially if an appeal is required to set aside the orders made. This is because process efficiency is casedependent and has to be considered in the light of changing circumstances. If it turns out that the time originally allocated for compliance has been insufficient, then the reasonableness of the initially allocated time has to be reconsidered and more time may need to be allowed for compliance. Unfortunately, in dealing with relief from sanctions the court tended to lose sight of the difference between ex ante consideration of proportionality of process arrangements and post facto excuses for non-compliance.

11.61 In Actrol Parts Pty Ltd v Coppi,111 Bell J considered the consequences to be imposed on a party for failure to comply with the overriding objective by maintaining a disproportionate procedure when compared to the outcome to be achieved. An employer brought proceedings alleging a breach of contract on the basis that an employee had breached a confidentiality agreement. It was established that the

Page 455 plaintiff had suffered no compensable loss but, despite this, the plaintiff continued the litigation out of principle and to recover nominal damages. The plaintiff’s costs came to about $600,000 and the defendant’s costs exceeded $300,000. In looking to what the overriding objective required of the plaintiff in terms of the proportionality of costs, Bell J referred to the following passage from Redlich and Priest JJA and Macaulay AJA in Yara Australia Pty Ltd v Oswal:112 There is plainly no costs matrix or formula that can be applied in determining whether the parties have met their obligations. Rather, the court must weigh the legal costs expended against the complexity and importance of the issues and the amount in dispute, in order to determine whether the parties used reasonable endeavours to ensure those costs were proportionate.113

Bell J continued: Based as it is on the concept of proportionality, the obligation demands a balanced consideration of ends and means. It strongly discourages conducting litigation by reference to the old principle that the ends justifies the means. This kind of litigation too often meant that economically powerful parties could, to achieve even modest ends, spend virtually what they

Page 28 of 42 Chapter 11 Court Management and Party Compliance liked on legal costs, with potentially deleterious consequences for the conduct of the proceeding by all of the parties,as well as the administration of justice. The new principle aims to ensure that there is a reasonably proportionate relationship between ends and means.114

Finding that the plaintiff had engaged in a ‘clear, indeed egregious, contravention’ of the plaintiff’s ‘overarching obligation to ensure costs were reasonable and proportionate’,115 Bell J dismissed the plaintiff’s claim in the interests of justice and awarded indemnity costs in favour of the defendant.

111 Actrol Parts Pty Ltd v Coppi [2015] VSC 758

.

112 Yara Australia Pty Ltd v Oswal (2013) 41 VR 302

.

113 Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at 307

[13] per Redlich and Priest JJA and Macaulay AJA.

114 Actrol Parts Pty Ltd v Coppi [2015] VSC 758 at [60]

per Bell J.

115 Actrol Parts Pty Ltd v Coppi [2015] VSC 758 at [72]

per Bell J.

Relief from the consequences of consent orders

11.62 Consent orders require special considerations in connection with relief from sanctions or, indeed, applications to vary case management directions. The High Court has confirmed that consent orders have the same status as orders made on the merits.116 However, a distinction has been drawn between a consent order that is founded on a contract between the parties and a consent order based on the parties’ willingness to submit to the court’s order.117 The distinction is important because if a consent order forms a contract it is much harder for a party to convince the court to

Page 456 set aside or vary it.118 In Harvey v Phillips,119 for example, the High Court held that a consent order not yet formalised that recorded terms settling the proceedings could not be set aside because the contract upon which the consent order was based was not void or voidable as a matter of contract law.120

116 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 CLR 555; [2012] HCA 60 at [48]

; Newcrest Mining Ltd v Thornton (2012) 248

per Heydon J.

117 A Sloan, ‘When Does a Consent Order Operate as or Evidence a Contract’ (2016) 5 Journal of Civil Law and Procedure 234; Blundstone v Johnson [2010]QCA 148 at [14]

per Holmes JA.

118 J Tarrant, ‘Consent Orders Based on Binding Contracts’ (2012) 28 Journal of Contract Law 237 at 238. 119 Harvey v Phillips (1956) 95 CLR 235

.

120 Harvey v Phillips (1956) 95 CLR 235 at 243–4

.

11.63 Lord Denning MR drew this distinction in Siebe Gorman & Co Ltd v Pneupac Ltd:121

Page 29 of 42 Chapter 11 Court Management and Party Compliance

There are two meanings to the words ‘by consent.’ … One meaning is this: the words ‘by consent’ may evidence a real contract between the parties … The other meaning is this: the words ‘by consent’may mean ‘the parties hereto not objecting.’ In such a case there is no real contract between the parties …122

Examples of consent orders which form contracts include where the plaintiff accepts payment of a settlement sum as consideration for discontinuing proceedings,123 where an appellant discontinues an appeal in return for the other side waiving its right to costs,124 where parties provide mutual undertakings,125 and where the parties agree that security for costs be given by a particular date.126 An example of where the parties have not formed a contract but have simply subjected themselves to an order of the court is where the plaintiff has applied for an extension of time within which to file an expert report and, following an agreement between the parties, the court orders that the report be filed by a certain date.127 This order is no different from any other management order and the court has the usual powers to set vary it or set it aside.

121 Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185

.

122 Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185

at 189

123 Harvey v Phillips (1956) 95 CLR 235

.

124 National Benzole Co Ltd v Gooch [1961] 1 WLR 1489

at 1100

per Upjohn LJ.

125 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 596and 601 R 343

per Lord Denning MR.

per McPherson SPJ; Alford v Ebbage [2003] 1 Qd

.

126 R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 391 Chavez v Moreton Bay Regional Council [2010]2 Qd R 299; [2009] QCA 348 at [38] 127 CEF Holdings Ltd v Mundey [2012] EWHC 1524 (QB) at [189]

per Woodward and Foster JJ; .

ff.

11.64 A distinction needs to be drawn between an order that represents a contractually agreed settlement of the substantive dispute,128 and an order that represents the parties’ agreement about the management of the litigation.129 In the former circumstances, it is much more likely that the parties have formed a binding contract to settle the dispute. This is because there is obvious consideration: the plaintiff has discontinued its claim against the defendant in return for the defendant making payment to the plaintiff. Looking to the principle of party autonomy, the court has no jurisdiction to vary a settlement agreement any more than it can vary

Page 457 any other contract between the parties.130 One consequence of this is, as Sloan explains, that once the final order is made, the court has no jurisdiction to make further orders concerning the rights of the parties.131 To set aside a contractual consent order, the parties are limited to the vitiating factors that apply to contracts generally, such as fraud.132

128 Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 129 Wentworth v Attorney-General (NSW) (1984) 154 CLR 518 at 526 Dawson JJ.

per Gibbs J. per Gibbs CJ, Mason, Brennan, Deane and

Page 30 of 42 Chapter 11 Court Management and Party Compliance 130 As noted above, parties have a right to determine what to litigate, which means that they can agree to compromise a dispute before the court and thereby withdraw it from the court’s jurisdiction. See 11.9 ff above; Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248

per Gibbs J.

131 A Sloan, ‘When Does a Consent Order Operate as or Evidence a Contract’ (2016) 5 Journal of Civil Law and Procedure 234 at 239. See also Perpetual Trustees Queensland Ltd v Thompson [2012] 2 Qd R 266; [2011] QSC 48 at [24] 132 Bailey v Marinoff (1971) 125 CLR 529 at 530

.

per Menzies J.

11.65 Interlocutory consent orders may still result in binding contracts between the parties.133 However, it is much less likely that these orders are contractual as there may be no intention to form legal relations as opposed to one party simply not objecting to an order being made on the application of another party. In R D Werner & Co Inc v Bailey,134 Woodward and Foster JJ stated: It is convenient to begin by considering whether there was in fact a binding contract between the parties expressed by the consent order, or whether this was one of the frequent cases in which an interlocutory order is made on the application of one party with the other party or parties consenting — in the sense of not objecting — but without there being any intention of entering into a formal and binding contract. Courts are very familiar with the circumstance in which parties reach an agreement, either after a good deal of negotiation or perhaps quite readily, about the orders that should be made for the future conduct of an action. We would be most reluctant to reach any conclusion which tended to inhibit the ready consent of practitioners to the making of sensible arrangements in such cases. It would normally be understood by them that, if circumstances arose which made it necessary, they would be entitled to apply to the court for a variation of the orders to which they had consented.

Accordingly, interlocutory consent orders are much less likely to embody contracts. The courts have drawn a distinction between forming a legally binding contract and not objecting to an order.135 The critical issue for the court is, therefore, what the intention of the parties was at the relevant time.

133 Baines v State Bank of New South Wales (1985) 2 NSWLR 729 at 738

.

134 R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 390–1 JJ. 135 EI Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423 at 435 Commissioner of the Australian Federal Police [2005] FCA 1363 at [17]

per Woodward and Foster

per Beaumont J; Oke v

per Mansfield J.

Contempt inappropriate for punishing procedural default

11.66 Committal for contempt is an inappropriate measure for enforcing most process requirements.136 A court should not commit a plaintiff for failing to serve

Page 458 the claim form or a defendant for failing to file a defence within time. A party should not be subjected to contempt proceedings for failing to perform most other process requirements, such as failing to file a witness statement or expert report. This is because the vast majority of process requirements are voluntary. As explained above, parties to litigation are autonomous and may choose to not comply with process requirements and accept the consequences of default.137

Page 31 of 42 Chapter 11 Court Management and Party Compliance

136 For detailed discussion of contempt of court, see Chapter 24, 24.73 ff. 137 See 11.9 ff above.

11.67 Parties have a broad autonomy in procedure. They are free to engage or disengage from the litigation process. A claimant is free to allow the period of service to elapse without serving the claim form, and a defendant is free to not contest the claim. Party autonomy continues after the close of pleadings. For example, a plaintiff in Victoria is free to ignore an order to give particulars of its claim, make discovery or allow inspection of its documents, or fail to answer interrogatories,and by doing so accept the consequences that its claim will likely be dismissed by the court.138 Process requirements such as these are merely conditions for participation in litigation or for taking a particular procedural step. Since a claimant is free to discontinue the action and a defendant is free to admit liability or submit to a default judgment, they are also free not to comply with most other conditions laid down for participation in litigation or for taking particular steps in litigation.139

138 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.02. 139 See 11.12 above.

11.68 Acknowledging that the ‘cardinal feature of the power to punish for contempt’ is that it is the exercise of judicial power to ‘protect the due administration of justice’,140 if a party is willing to run the risk of the consequences of default the court should do little but allow the consequences of default to occur. The position was explained by Hobhouse LJ in Prudential Assurance Co Ltd v Fountain Page Ltd:141 It is said that many things in actions are done because a party is ordered or otherwise required to do them. They are required to deliver pleadings, swear and lodge affidavit evidence, call witnesses, or, in the present context, serve advance copies of the evidence upon which they propose to rely at the trial. In all these situations the practical sanction is similar to that which arises from a failure to give discovery or respond to other orders. The primary sanction that the court imposes is to strike out the claim or the defence. If a party fails to deliver a pleading or to lodge or adduce evidence he will fail to protect his rights and the other party’s claims or defences will prevail. The outcome for the litigant is, in practical terms, the same. However in legal terms this is not correct. There is a distinction between orders, the breach of which is a contempt of court and those orders or rules which merely give rise to a default. The principle of compulsion applies to the former category only.

140 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [41]

.

141 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878 at 887; [1991] 1 WLR 756

11.69

.

Page 32 of 42 Chapter 11 Court Management and Party Compliance The fact that the court may order a party to perform a particular procedural step by a certain time, such as serving a defence or a witness statement, does not alter the electable nature of the procedural duty. Notwithstanding an order of this kind, the

Page 459 party continues to be free to elect to suffer the procedural consequence rather than comply with the order. Where procedural requirements are electable in the sense just explained, the court has no jurisdiction to commit a litigant who fails to comply with such requirements for contempt of court. And it matters not whether the process requirement is imposed by a rule, practice direction or court order.

11.70 This principle is reflected in court decisions. In Kazal v Thunder Studios Inc (California),142 the Full Court of the Federal Court of Australia said, for example, that imprisonment for contempt is a ‘last resort’.143 The appropriate and proportionate response in such cases is to apply the consequences specified by the rules or by court orders for failure to comply. In extreme circumstances the court may even strike out a party’s statement of case,144 but it would be an excessive use of judicial power to commit the defaulting party to prison for contempt of court or impose a fine.

142 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111

.

143 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 at [103] Danchevsky [1974] 3 All ER 934 at 937 to prison, that alternative must be taken’.

. Lord Denning MR said in Danchevsky v

, ‘Whenever there is a reasonable alternative available instead of committal

144 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 23.9.

Process duties compellable by contempt

11.71 Committal is, however, available where the party is under a duty which is compulsory, from which the party cannot escape by disengaging from proceedings. An example of such a duty is where a freezing order places an obligation on the defendant to refrain from dissipating assets and to disclose their value and location.145 Similarly, breach of an interim injunction is punishable with contempt.146

145 Crane Distribution Ltd v Van Schellebeeck [2009] NSWSC 263 [2017] VSC 738

; Fortune Holding Group Pty Ltd v Zhang (No 2)

.

146 Mudginberri Station Pty Ltd v Australasian Meat Industry Employees’ Union (1985) 11 FCR 573; 61 ALR 291

.

11.72 Process obligations that must be complied with on pain of contempt may be divided into two groups: obligations imposed on parties and obligations imposed on non-parties. In the course of litigation the court may require nonparties to provide assistance in a number of ways. For example, witnesses may be subpoenaed to testify during the trial but refuse to attend court to give evidence.147 Solicitors and barristers have various duties arising from their

Page 33 of 42 Chapter 11 Court Management and Party Compliance status as officers of the court. Contempt proceedings are available for enforcing all such obligations or for punishing noncompliance. 148 There is also authority for the proposition that it may be contempt of court to knowingly aid and abet a person, who is bound by a court order or undertaking, to refuse or not comply with the order or undertaking.149

Page 460

147 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 33.12. 148 Witham v Holloway (1995) 183 CLR 525 at 530

per Brennan, Deane, Toohey and Gaudron JJ.

149 Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394

extended this to include aiding or abetting a party to not

comply with a consent order. See also Foley v Herald-Sun TV Pty Ltd [1981] VR 315 Matthews Pty Ltd (1986) 11 FCR 347 110.

; Ellendale Pty Ltd v Graham

; Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR

11.73 Parties are duty bound to comply with court orders that are designed to protect substantive rights. For instance, a defendant who is ordered to demolish a disputed building must comply,150 as must a parent ordered not to take a child out of the jurisdiction.151 Such orders leave no room for disobedience. Disobeying an interim injunction is just as serious a matter as disobeying a permanent injunction. The coercive process is employed in such circumstances as a normal instrument of protecting rights,not as a means of compelling obedience to process requirements.152

150 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 151 Caron v Caron [2017] FamCA 1033

.

.

152 In Gairy v A-G of Grenada [2001] UKPC 30; [2002] 1 AC 167 , Lord Bingham explained that the ‘expression “coercive” was sometimes used … to describe mandatory orders to which there attached a sanction, whether explicit or implicit, such as committal, for non-compliance’.

11.74 There is also a small group of process obligations enforceable by proceedings for contempt. The main feature of these is their compulsory nature, in the sense that they leave no room for disobedience. A party who has been ordered to file a disclosure document by a certain date may decide not to comply and face the prospect of having its statement of case struck out.153 But a defendant that has been ordered to cease strike action has no such option. It is bound to comply on pain of contempt.154

153 See, for example, Rules of the Supreme Court 1971 (WA) r 19. 154 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758

.

Page 34 of 42 Chapter 11 Court Management and Party Compliance

11.75 Contempt proceedings are also available where a party’s non-compliance goes beyond the mere failure to fulfil process requirements and amounts to subversion of the administration of justice.155 Brennan, Deane, Toohey and Gaudron JJ described these cases in Withham v Holloway,156 as arising where non-compliance ‘necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties’.157 In Re Colina; Ex parte Torney,158 Hayne J described ‘the cardinal feature of the power to punish for contempt’ as ‘an exercise of judicial power by the courts to protect the due administration of justice’.159

155 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 156 Withham v Holloway (1995) 183 CLR 525

.

.

157 Withham v Holloway (1995) 183 CLR 525 at 533

per Brennan, Deane, Toohey and Gaudron JJ. See also

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 388 per French CJ, Kiefel, Bell, Gageler and Keane JJ. 158 Re Colina; Ex parte Torney (1999) 200 CLR 386

[41]

.

159 Re Colina; Ex parte Torney (1999) 200 CLR 386 at 429 [112] per Hayne J.

11.76 That said, the fact contempt proceedings can be commenced in relation to these matters does not mean that they cannot also be dealt with by making conditional orders.160

160 See 11.74 ff above.

Abuse of process

11.77 In addition to case management powers, the court has a wide discretionary power at common law to prevent its processes from being abused. One of the principal aims of the abuse of process jurisdiction is to enable the court to deal with problems

Page 461 to which the rules either provide unsatisfactory solutions, or altogether fail to address. The power traditionally arises from the court’s inherent jurisdiction to safeguard its authority and processes from being undermined by disruptive, oppressive or otherwise inappropriate use of court procedures.161 The rules of court also provide the court with discretionary powers that empower the court to strike out or summarily dismiss proceedings for an abuse of process.162 For the court’s power to stay proceedings for an abuse of process and the court’s response to fraudulent litigation, see Chapter 14, 14.30 ff. In this chapter, the focus is on the court’s powers to strike out and summarily dismiss proceedings for abuse of process. For a more detailed discussion of strike-out and summary dismissal powers and consequences, see Chapter 7, 7.77 ff and Chapter 9, 9.70 ff.

Page 35 of 42 Chapter 11 Court Management and Party Compliance 161 See Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 . See also J Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) Current Legal Problems 23; J Jolowicz, ‘Abuse of Process: Handle with Care’ (1990) 43 Current Legal Problems 77; A Choo, Abuse of Process and Judicial Stays in Criminal Proceedings, Clarendon Press, Oxford, 1993; M Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’ (1997)113 Law Quarterly Review 120; R James, ‘Delay and Abuse of Process’ (1999) 18 Civil Justice Quarterly 289; G Watt, ‘Henderson Is Dead! Long Live Henderson! — the Modern Rule of Abuse of Process’ (2001) 20 Civil Justice Quarterly 90; M Taruffo (ed), Abuse of Procedural Rights: Comparative Standards of Procedural Fairness, Kluwer Law International,New Orleans, Lousiana, 1998. 162 Federal Court Rules 2011 (Cth) r 16.21(1)(f) (strike-out), r 26.01(1)(d) (summary judgment); Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(c) (summary judgment), r 14.28(1)(c) (strike-out); Supreme Court Rules (NT) rr 23.01(2)(c) and 23.02(d) (strike-out); Uniform Civil Procedure Rules 1999 (Qld) r 171(1)(e) (strike-out); Supreme Court Civil Rules 2006 (SA) rr 104(b) and 117(2)(e) (strike-out), r 193(b) (summary judgment);Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01 (summary judgment), r 23.02 (strike-out); Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d) (strike-out or summary judgment).

Inherent or implied jurisdiction

11.78 The inherent jurisdiction of the courts to deal with abuses of processes has been described as the: … residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.163

The inherent jurisdiction of the court to deal with abuse of process overlaps with but is separate to the powers conferred by the rules of court to enter summary judgment or strike out a pleading where it is otherwise an abuse of the process of the court.164 The inherent jurisdiction to prevent such misuse of procedure transcends the rules.165

Page 462 It provides the court with the power to regulate its process and to prevent or disqualify procedural acts not because they are contrary to the rules, but because they amount to a misuse of its process.166

163 J Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) Current Legal Problems 23 at 51. See also K Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 449; M Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’ (1997) 113 Law Quarterly Review 120. 164 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 268–70; [2006] HCA 27 Gummow, Hayne and Crennan JJ.

per Gleeson CJ,

165 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 267; [2006] HCA 27 per Gleeson CJ, Gummow, Hayne and Crennan JJ; N Andrews, ‘Abuse of Process in English Civil Litigation’ in M Taruffo (ed), Abuse of Procedural Rights: Comparative Standards of Procedural Fairness, Kluwer Law International, New Orleans, Lousiana, 1998, p 65; R Fentiman, ‘Abuse in Procedural Rights: The Position of English Law’ in M Taruffo (ed), Abuse of Procedural Rights: Comparative Standards of Procedural Fairness, Kluwer Law International, New Orleans, Lousiana, 1998, p 53. 166 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264

; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2014)

288 FLR 299 . It is under this inherent jurisdiction that the court is able to publish practice directions and make orders such as Mareva orders and Anton Piller orders.

11.79

Page 36 of 42 Chapter 11 Court Management and Party Compliance Exercising this jurisdiction, the court is able to receive evidence to look behind the purpose of the pleadings.167 This is, as Lord Diplock said, an ‘inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.168 If the court were to tolerate purposeful disobedience of its rules, or wholesale disregard of rules and court orders, its standing as a court of law would be undermined. The general response made by a court where it has found an abuse of process in the exercise of its inherent jurisdiction, is to order a stay of the proceedings: see Chapter 14, 14.30 ff.

167 Lawrence v Lord Norreys (1890) 15 AC 210. 168 Hunter v Chief Constable of West Midlands [1982] AC 529 ; [1981] 3 All ER 727 at 729 per Diplock LJ, which the High Court of Australia accepted as an accurate state of Australian law in Walton v Gardiner (1993) 177 CLR 378 at 393

per Mason CJ, Deane and Dawson JJ.

11.80 In Australia, a distinction has been made between the inherent jurisdiction of courts conferred power by the Constitution and courts conferred power by statute. The Federal Court, for example, is conferred jurisdiction by the Federal Court of Australia Act 1976 (Cth) so rather than having an inherent jurisdiction, it has an ‘implied’ jurisdiction that has largely the same scope as the inherent jurisdiction of constitutional courts.169 Wilson and Dawson JJ explained in Jackson v Sterling Industries Ltd:170 It is an implied power because of the statutory nature of the Court. … … Having regard to the declaration of the Federal Court as a superior court and a court of law and equity, the implied power should be construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction.171

169 Jackson v Sterling Industries Ltd (1987) 162 CLR 612

. See also Taylor v Taylor (1979) 25 ALR 418

Court); Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 & Co Pty Ltd (2013) 305 ALR 522

(Family

(Federal Court); Flint v Richard Busuttil

(Federal Circuit Court).

170 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Federal Court generally.

. See Chapter 2, 2.10 ff in relation to the jurisdiction of the

171 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618–19

per Wilson and Dawson JJ.

The rules of court

11.81 The purpose of civil procedure is to enable the court to do justice, namely, to decide controversies fairly and in accordance with the law and the true facts.

Page 37 of 42 Chapter 11 Court Management and Party Compliance

Page 463 Procedural rules are designed to promote fairness, but no rules can be drafted with such specificity or detail to guarantee that they are never exploited to divert the process from its aim of doing justice. Under the rules of court, the principal forms of relief for abuses of process are for the court to strike out pleadings,172 or order summary judgment.173 However, as the institution of proceedings can itself be an abuse of process, rules in each jurisdiction provide that a court registrar or equivalent officer of the court may refuse to accept filed documents if they are abusive, or refer a filed document to the court where it is frivolous, vexatious, or is otherwise an abuse of process.174 Once referred, one of the forms of relief discussed above may be granted by the court.

172 See, for example: Federal Court Rules 2011 (Cth) r 16.21(1)(f); Uniform Civil Procedure Rules 2005 (NSW) r 14.28(1)(c) (strike-out); Supreme Court Rules (NT) rr 23.01(2)(c) and 23.02(d); Uniform Civil Procedure Rules 1999 (Qld) r 171(1)(e); Supreme Court Civil Rules 2006 (SA) rr 104(b) and 117(2)(e); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02; Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d). See Chapter 7, 7.77 ff and Chapter 9, 9.70 ff for a discussion of strike-out procedures. 173 See, for example, Federal Court Rules 2011 (Cth) r 26.01(1)(d); Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(c); Supreme Court Civil Rules 2006 (SA) r 193(b) ; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01; Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d). See Chapter 7, 7.77 ff and Chapter 9, 9.70 ff for a discussion of strike-out procedures. Stays are considered in Chapter 14, 14.30 ff. 174 Federal Court Rules 2011 (Cth) rr 2.26 and 2.27; Court Procedures Rules 2006 (ACT) r 6142; Uniform Civil Procedure Rules 2005 (NSW) r 4.15; Supreme Court Rules (NT) r 27.07; Uniform Civil Procedure Rules 1999 (Qld) r 15; Supreme Court Civil Rules 2006 (SA) r 53; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 27.06; Rules of the Supreme Court 1971 (WA) O 67 r 5.

What is an abuse of process?

11.82 Abuse of process, Brennan J has explained, consists of purporting to obtain ‘an advantage or other benefit, to impose a burden or create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding’.175 An abuse of process is a misuse of the court’s procedure which either is manifestly unfair to another party to litigation or would bring the system of administration of justice into disrepute.176 However, in Batistatos v RTA (NSW),177 Gleeson CJ, Gummow, Hayne and Crennan JJ made clear that abuse of process is a concept incapable of definition: Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends

Page 464 to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.178

175 Williams v Spautz (1992) 174 CLR 509 at 537

per Brennan J. See also Chapter 14, 14.30 ff.

Page 38 of 42 Chapter 11 Court Management and Party Compliance 176 Hunter v Chief Constable of West Midlands [1982] AC 529 ; [1981] 3 All ER 727 at 729 per Diplock LJ, which the High Court of Australia accepted as an accurate state of Australian law in Walton v Gardiner (1993) 177 CLR 378 at 393

per Mason CJ, Deane and Dawson JJ.

177 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

.

178 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 267; [2006] HCA 27 Gummow, Hayne and Crennan JJ.

per Gleeson CJ,

11.83 As the proper purposes for which the law of procedure may be employed are able to be identified, one is able to ascertain the purposes for which it should not be employed. The High Court held in Batistatos v RTA (NSW) that abuses of process must reflect contemporary values.179 As the overriding objective has established norms of modern civil procedure, it ought to inform what is considered to be an abuse of process. This is one of the reasons why the High Court in Batistatos found that the failure to take, as well as the taking of, procedural steps which cause delay in the conduct of proceedings is capable of constituting an abuse of process.180

179 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 267; [2006] HCA 27 Gummow, Hayne and Crennan JJ.

per Gleeson CJ,

180 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 267; [2006] HCA 27 Gummow, Hayne and Crennan JJ.

per Gleeson CJ,

11.84 Since abuse of process turns not on the interpretation of rules but on the use made of them and that there is no simple test to determine an abuse, the court must assess the effect that a particular process would have on other parties or the system. Given that the power to deal with abuse of process is a residual jurisdiction, its use is predominantly appropriate in situations where its exercise is required in order to reach a just conclusion. Therefore, there ought to be no need to use this power where the court can find a satisfactory solution under the rules of court or other legislation.

11.85 Proceedings may amount to abuse of process due to their tendency to disrupt the proper administration of civil justice. For instance, trying to litigate an issue that has already been decided in a sample case amounts to abuse of process, because it obstructs the court’s attempt to determine a common issue for the benefit of all litigants with an interest in the outcome.181 In Bajramovic v Calubaquib,182 Emmett JA explained how abuses of process may arise with respect to interlocutory applications: Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.

Page 39 of 42 Chapter 11 Court Management and Party Compliance For example, it may not be an abuse of process to relitigate an interlocutory application where circumstances have changed or fresh evidence has become available.183 Where

Page 465 interlocutory applications are found to be an abuse of process, they may be stayed or struck out in the court’s inherent or implied jurisdiction.

181 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 182 Bajramovic v Calubaquib [2015] NSWCA 139

per McClelland J.

.

183 Tasmania v Chatters (No 2) [2017] TASSC 74.

11.86 Proceedings are liable to be struck out or dismissed for abuse of process where they are brought other than for the just determination of disputes. An improper intention is not a necessary precondition for establishing abuse of process but it is a factor to be taken into account in arriving at the decision whether to allow a particular process to be followed.184 The court’s inquiry focuses on the litigant’s purpose in filing the proceeding, making an interlocutory application, or using a particular process. Purpose is objectively determined. In Williams v Spautz,185 Mason CJ, Dawson, Toohey and McHugh JJ explained: Inquiry into motivation alone might prove a fragile foundation on which to base an exercise of the power to grant a permanent stay. For that reason, apart from any other, it is more satisfactory to base an exercise of the jurisdiction in cases of improper purpose upon a use or threatened use of the proceedings for such a purpose. Then the conclusion which the court reaches is more likely to be founded upon objective evidence rather than subjective evidence of intention.186

184 Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 185 Williams v Spautz (1992) 174 CLR 509

.

.

186 Williams v Spautz (1992) 174 CLR 509 at 529

per Mason CJ, Dawson, Toohey and McHugh JJ. See also Coe v

Commonwealth of Australia (The Wiradjuri Claim) (1993) 118 ALR 193 at 207; [1993] HCA 42

per Mason CJ.

11.87 Improper motive and underhand tactics are always highly relevant factors. Thus, for example, it is an abuse of process to bring or maintain proceedings for a political purpose or to elicit a political response.187 For example, in Coe v Commonwealth of Australia (The Wiradjuri Claim),188 a declaration was sought that the Wiradjuri people were the owners of land in New South Wales. Mason CJ found that the claim had been brought for an improper purpose, being that it was brought to contribute to a political settlement of various land right claims. Mason CJ permanently stayed the proceedings for a declaration and ordered that the entire statement of claim be struck out. Leave was granted to the plaintiff to file an amended statement of claim that was confined to the parts of its claim that were not abusive as it had some genuine claims.189 It is submitted that a different decision may be made in modern proceedings in the light of the overriding objective, being that leave may be granted to amend the claim.

Page 40 of 42 Chapter 11 Court Management and Party Compliance

187 Coe v Commonwealth of Australia (The Wiradjuri Claim) (1993) 118 ALR 193; [1993] HCA 42

.

188 Coe v Commonwealth of Australia (The Wiradjuri Claim) (1993) 118 ALR 193; [1993] HCA 42

.

189 Coe v Commonwealth of Australia (The Wiradjuri Claim) (1993) 118 ALR 193 at 207; [1993] HCA 42

per Mason CJ.

Self-represented litigants

11.88 Self-represented litigants deserve special consideration because they are not usually familiar with the rules and with court procedures. When considering whether to grant a self-represented litigant an extension of time or relief from sanctions,the court will seek to determine whether the default has been due to understandable ignorance of process and leniency is more likely to be afforded. As Mason CJ, Brennan, Deane,

Page 466 Dawson and McHugh JJ stated in Cachia v Hanes,190 ‘All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself.’191 The potential degree of this assistance the court may give to self-represented litigants was summarised by the court in In Marriage of F:192 [1] A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial. [2] A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses. … A judge should explain to the litigant in person any procedures relevant to the litigation. [3] A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation. [4] If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course. [5] A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise. [6] If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights. [7] A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy,the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott [(1994) 68 ALJR 509] (at 510). [8] Where the interests of justice and the circumstances of the case require it, a judge may: •

draw attention to the law applied by the Court in determining issues before it;

•

question witnesses;

•

identify applications or submissions which ought to be put to the Court;

•

suggest procedural steps that may be taken by a party;

•

clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

Page 41 of 42 Chapter 11 Court Management and Party Compliance The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.193

Page 467

190 Cachia v Hanes (1994) 120 ALR 385; 179 CLR 403

.

191 Cachia v Hanes (1994) 120 ALR 385; 179 CLR 403 at 415 JJ. 192 In Marriage of F (2001) 161 FLR 189

per Mason CJ, Brennan, Deane, Dawson and McHugh

.

193 In Marriage of F (2001) 161 FLR 189 at 226–7

.

11.89 Even though courts may show some tolerance for the shortcomings of selfrepresented litigants they are not entitled to lenient treatment as a matter of right. There is a balance between the impartiality required of the judge and the assistance provided to self-represented litigants. As Nicholson states, a critical question is ‘how far a court can assist a self-represented litigant without losing the perception of impartiality so important to the discharge of the judicial function’.194 Nicholson also points out that there is a related issue, being the extent to which duties fall on counsel for a represented litigant to assist the self-represented litigant and thereby assist the court prepare for litigation.195

194 R Nicholson, ‘Australian Experience with Self-represented Litigants’ (2003) 77 Australian Law Journal 820 at 822. 195 R Nicholson, ‘Australian Experience with Self-represented Litigants’ (2003) 77 Australian Law Journal 820 at 822.

11.90 In practice, however, courts tend to show more tolerance to self-represented litigants. Represented parties who raise procedural objections against a self-represented litigant do so at some risk to themselves, since the court is bound to give lay litigants greater leeway and will inevitably tend to apply different standards of compliance. It is not surprising that, in complex disputes, self-represented litigants tend to make the conduct of litigation more difficult for the court and the opponent.

11.91 A court dealing with a self-represented litigant may well need to devote greater resources to the case, both in terms of judicial management and administrative effort. The opponent too may feel compelled to make allowances that would be unnecessary if both parties were represented. Legal aid is not, however, the only option. When one considers the extra resources needed for dealing with unrepresented parties in complex cases, one begins to appreciate the reason behind the obligatory need for legal representation in many continental countries (where, however, the cost of litigation is considerably lower than in Australia).196

Page 42 of 42 Chapter 11 Court Management and Party Compliance

196 For discussion of the difficulties created by self-represented litigants and a plea for mandatory representation, see R Assy, ‘Revisiting the Right to Self-Representation in Civil Proceedings’ (2011) 30 Civil Justice Quarterly 267.

Costs consequences of non-compliance

11.92 Failure to comply with process requirements may result in adverse costs consequences. The principles governing costs decisions are discussed in Chapter 28, 28.5 ff.

End of Document

Chapter 12 Specialist Lists and Procedural Tracks Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 12 — Specialist Lists and Procedural Tracks

Chapter 12 Specialist Lists and Procedural Tracks Page 469 [Current to May 2018]

Introduction

12.1 Efficient case management consists in the economical and effective allocation of procedural resources.1 The idea behind the overriding objective is that the investment of resources in any given dispute should be no more than is required for a fair and expeditious resolution of the dispute. The process adopted for the resolution of disputes,in other words, should be proportionate to the needs of the dispute in hand. However, if every claim required its own judicially crafted bespoke procedure, the task of adjusting process to dispute could end up consuming excessive procedural resources.To avoid such waste, court rules and practice notes provide template procedures suitable for the majority of cases, while maintaining sufficient flexibility within these procedures to cater for diversity in the importance and complexity of disputes.2

1

See M Rosenberg, ‘The Federal Rules after Half a Century’ (1984) 36 Maine Law Review 243; H Bakke and M Salomon, ‘Case Differentiation: An Approach to Individualised Case Management’(1989) 73(1) Judicature 17.

2

N Armstrong, ‘Making Tracks’ in A A S Zuckerman and R Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’, Clarendon Press, Oxford, 1995, p 97.

12.2 Like many common law jurisdictions, the judicial system in Australia comprises both ‘generalist’ and ‘specialist’ courts and tribunals. Broadly speaking, ‘generalist’ courts are those with general jurisdiction over a wide range of matters, such as each state Supreme Court, whereas ‘specialist’ courts have a more limited jurisdiction, confined either to a discrete area of law or field of human activity.3 Examples of courts and tribunals which might be labelled as ‘specialist’ include the Family Court of Australia, which deals primarily with family law matters, the Land and Environment Court of New South Wales, which reviews and hears appeals of environment, planning and development decisions in that state, and the Fair Work Commission, which deals

Page 470 with various aspects of workplace relations. Specialist courts, or divisions within courts, also exist for children,people with mental disabilities and drug-users.4

3

Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11.

Page 2 of 11 Chapter 12 Specialist Lists and Procedural Tracks 4

For example, the Children’s Courts in New South Wales, Queensland, Victoria and Western Australia, the Mental Health Court in Queensland and the Drug Court divisions of the Magistrates’ Court of Victoria and the Local Court of New South Wales.

12.3 It is not possible to identify with precision the dividing line between a general and a specialist court. Neither are terms of art. For example, the Federal Court of Australia can be regarded as a general court, notwithstanding that it derives its primary jurisdiction from a series of federal Acts and has only a modest criminal jurisdiction.5 The subject matter of cases it can entertain is sufficiently broad — covering almost all civil matters arising under federal law — to treat it as having general jurisdiction.6

5

Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11.

6

See Justice Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ (FCA) [2007] FedJSchol 15 in which Justice Allsop states: ‘The Federal Court was once a court of limited specific jurisdiction. This is no longer so. This change was a result of the exercise of the will of the Commonwealth Parliament. The Federal Court is, and has been since 1997, a court of general federal civil jurisdiction, having jurisdiction whenever a law of the Commonwealth Parliament is part of a dispute’. See also Justice Bathurst, ‘Specialised Courts/Court Tracks — The Way to Go?’, speech delivered at the Pacific Judicial Conference, Papua New Guinea, 14 September 2016, [7].

12.4 Most Australian jurisdictions have a variety of specialist courts or tribunals, specialist divisions or lists within general courts, or some combination of the two. The task of identifying and considering the processes of every specialist judicial institution in Australia is beyond the scope of this work.7 For this reason, this chapter is concerned primarily with specialisation within general courts. It is not exhaustive and instead serves to provide an overview of the ways in which courts perceive and approach the need for specialisation.It examines why specialist institutions may be created and their advantages and disadvantages relative to their generalist cousins.

7

For a discussion on the role of specialist courts generally, see Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11.

Specialist vs generalist courts

12.5 There is no universal rule which explains why, from time to time, specialist courts or tribunals are established.8 In Kirk v Industrial Relations Commission of New South Wales, Heydon J observed:9 Our legal system has often had to balance the advantages of creating specialisation over the disadvantages of doing so. It is commonly thought better, for example, that allegations of crimes be tried by judges expert in criminal law and procedure. The same is true, mutatis mutandis, of company work, bankruptcy, personal injury claims, planning law and many other categories of litigation. Sometimes the legislature elects to create separate courts for the particular litigation. Sometimes it creates separate divisions within a court. Sometimes it leaves it to the courts themselves to create appropriate lists, the precise nature of which may readily be changed from time to time.

Page 471

Page 3 of 11 Chapter 12 Specialist Lists and Procedural Tracks

8

Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11.

9

Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 at [122]

.

12.6 In a paper on the topic, former Federal Court judge Michael Moore observed that the formation of specialist institutions appears to be linked to a perception by the legislature, if not the community more generally, that the resolution of particular disputes — whether by virtue of the legal issues involved or the field of human activity within which they arise — requires a particular type of judicial expertise, a particular process of judicial adjudication, or both.10 This may be because of the technical content involved in such disputes or because existing processes in general courts are thought ill-suited to the case management needs of the particular disputes in question.

10 Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11, 14.

12.7 Specialist courts bring with them advantages and disadvantages. As institutions created specifically to resolve particular types of legal disputes, or legal disputes between particular parties, they are able to tailor their practice and procedure to best suit the peculiar case management needs of the class of disputes before them. Insofar as necessary, even the buildings which house such institutions can be designed, furnished or otherwise equipped with the resolution of particular disputes in mind. A court or tribunal which deals only with certain types of disputes will quickly become proficient in resolving disputes of that kind. It will acquire an institutional knowledge of the intricacies of such disputes and the most efficient ways to determine them. The judicial officers in such institutions will be specialists in the field. This is particularly important in the face of complex disputes or disputes the resolution of which requires knowledge of technical subject matter.11

11 Justice T Bathurst, ‘Specialised Courts/Court Tracks — The Way to Go?’, speech delivered at the Pacific Judicial Conference, Papua New Guinea, 14 September 2016, [9]–[10].

12.8 Notwithstanding these benefits, specialist institutions have a number of drawbacks. First, the costs of creating and administering separate institutions are significant. Legislation must ordinarily be passed creating and conferring jurisdiction on the institution, premises must be found, new court staff and judges hired and unique rules and practices developed. Insofar as the specialist courts are created in response to perceived failings of the general court system, reform of the general system may be stultified.12 Secondly, specialist institutions result in a fragmented judicial system, with attendant potential for jurisdictional conflict, overlap and uncertainty. Parties may be in genuine doubt as to the appropriate judicial institution to hear their dispute. Costs may be thrown away and time wasted if cases are decided on jurisdictional grounds instead of merit, or require transfer to a more appropriate court before they can be heard. Indeed, as Moore notes, it was problems of this type which led to the integration of the common law and equitable jurisdictions under the Judicature Acts.13 Thirdly, specialisation can lead to insularity and a disconnect from prevailing judicial attitudes. Heydon J opined in Kirk:14

Page 4 of 11 Chapter 12 Specialist Lists and Procedural Tracks

Page 472   Another difficulty in setting up specialist courts is that they tend to become overenthusiastic about vindicating the purposes for which they were set up. Medical students usually detect in themselves … symptoms of the diseases they happen to be studying at that time. Academic lawyers interested in a particular doctrine can too often see it as almost universally operative. So too courts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted … To say that … is merely to raise a caveat about accepting too readily the validity of what specialist courts do — for there are general and fundamental legal principles which it can be even more important to apply than specialist skills.

12 Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11, 15. 13 Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11. 14 [2010] HCA 1 at [122].

12.9 By focusing predominantly on a specific sub-set of legal issues, specialist courts may ‘evolve into a kind of archipelago of islands of expertise separated by a sea of unknowing’.15 Fourthly and finally, because the formation of specialist courts can in some cases be a product of prevailing political views, such courts are vulnerable to abolition in the face of changing political or social values. On the creation of specialist courts, Walker warns:16 History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.

The creation of courts in such circumstances or their subsequent abolition may act to undermine the legitimacy of the judicial system and confidence in the administration of justice generally.17

15 The Hon R French, ‘In Praise of Breadth — A reflection on the virtues of generalist lawyering’, speech delivered at Law Summer School, University of Western Australia, 20 February 2009. 16 G Walker, The Rule of Law: Foundation of Constitutional Democracy, Melbourne University Press, Melbourne, 1988, p 153. 17 Justice M Moore, ‘The Role of Specialist Courts — an Australian perspective’ (FCA) [2001] FedJSchol 11; Justice T Bathurst, ‘Specialised Courts/Court Tracks — The Way to Go?’speech delivered at the Pacific Judicial Conference, Papua New Guinea, 14 September 2016, [17] and [19].

Specialisation within general courts

12.10

Page 5 of 11 Chapter 12 Specialist Lists and Procedural Tracks An obvious alternative to the creation of specialist courts is the creation of specialist divisions within existing courts of general jurisdiction.18 This avoids the need to create separate institutions to deal with discrete areas of law, and to establish new rules of practice insofar as existing rules are adequate.

18 It is typically a matter for the Chief Justice or judge of each court, from time to time, consistent with the power of courts to control their own processes, to determine the divisional structure of the court, if any, and if such a divisional structure is created, to determine the types of cases to be allocated to any given division and the judges who will sit within that division.

12.11 Most generalist courts already comprise various ‘practice areas’, ‘divisions’ or ‘lists’ into which different types of claims are allocated for management by specialist

Page 473 judges in accordance with the case management practices typically followed in those areas, divisions or lists. In some cases, such as those involving issues of probate or applications under the Corporations Act 2001 (Cth), specialist procedural rules may also apply.19

19 For example, in Victoria, the procedure for probate matters is set out in the specialist Supreme Court (Administration and Probate) Rules 2014 (Vic). Per r 1.05, those rules apply in conjunction with the court’s general Supreme Court(General Civil Procedure) Rules 2015 (Vic) so far as practicable and unless otherwise provided in the probate rules or by any Act. The procedures for Corporations Act matters are governed by uniform Corporations Rules at both the state and federal level.The specialist Corporations Rules also operate in conjunction with each court’s more general civil procedure rules, save where the Corporations Rules otherwise provide.

12.12 Ordinarily, the rules of court will not themselves prescribe the division or list into which any given case is to be allocated.20 Instead, this is a matter for the party bringing the claim to determine in the first instance and indicate on the face of the originating process that it proposes to file with the court, having regard to the guidance contained in any applicable practice notes or directions as to the type of cases heard in those divisions or lists. When the originating process is submitted to the court registry for filing, registry staff will make an assessment as to whether the proposed allocation is appropriate having regard to the issues which appear to arise on the face of the originating process and the relief sought therein, and accept, or amend, the process accordingly.21 A party’s determination of the appropriate list is not binding on the court. If it subsequently transpires that a different division or list would be better placed to determine the dispute, the court can simply allocate or transfer the case to that other division or list.22

20 See, for example, Uniform Civil Procedure Rules 1999 (Qld) r 368. Cf Uniform Civil Procedure Rules 2005 (NSW) Pt 45. 21 See, for example, Federal Court Practice Note CPN-1 (National Court Framework and Case Management) at [4.2] and Supreme Court of Victoria Practice Note SC Gen 2 (Structure of Trial Division) at [7.1]. CPN-1 relevantly states: ‘When filing,parties will nominate a relevant NPA [national practice area] (and Sub-area, if relevant). The appropriate NPA (and Sub-area, if relevant) will then be promptly identified and set by the Court. The nomination by the party is not determinative. The identification by the Court may involve a question of judgment about the dominant character of the matter. The matter will then be allocated to a judge in the relevant NPA (and Sub-area, if relevant)’. [4.3] goes on to state: ‘Subject to, availability of judges in the NPA in the registry of filing, to considerations of balance of workload and

Page 6 of 11 Chapter 12 Specialist Lists and Procedural Tracks commitment of judges, and in limited and likely rare circumstances the character of a matter calling for a different approach, matters will be allocated in rotation to judges in the NPA or Sub-area in the registry of filing’. 22 See, for example, Federal Court of Australia Practice Note CPN-1 at [4.2]; Supreme Court of Victoria Practice Note SC Gen 2 at [7.1] and Uniform Civil Procedure Act 2005 (NSW) r 45.2, which provides that ‘proceedings are to be entered in, or removed from, a specialist list if the Supreme Court so orders’.

Federal Court of Australia

12.13 As outlined in Chapter 2, the Federal Court of Australia has operated a ‘docket system’ across all of its registries since 1997, so that each case is allocated to the docket of a particular judge to manage from start to finish, including all interlocutory steps.23

Page 474 In 2011, the Federal Court introduced a ‘Fast Track’ process, which provided for an expedited and less formal hearing process for certain commercial and intellectual property disputes.24

23 See 2.12 ff and Federal Court Practice Note CPN-1 (National Court Framework and Case Management) dated 25 October 2016 (CPN-1) at [4.1]. 24 See Federal Court of Australia Practice Note CM 8 (Fast Track Directions) dated 1 August 2011 (now revoked and replaced with CPN-1).

12.14 In late 2016, the Federal Court reformed and streamlined its case management practices nationally, including the ‘Fast Track’ process, with the introduction of its ‘National Court Framework’ (NCF). Its operation is outlined in the court’s Central Practice Note 1 (National Court Framework and Case Management) dated 25 October 2016 (hereafter CPN-1). Under the NCF, the work of the court is now divided into the following nine ‘National Practice Areas’ (NPAs): 1. Administrative and Constitutional Law and Human Rights; 2. Native Title; 3. Employment and Industrial Relations; 4. Commercial and Corporations; 5. Taxation; 6. Intellectual Property; 7. Admiralty and Maritime; 8. Federal Crime and Related Proceedings; and 9. Other Federal Jurisdiction, which captures all cases outside the scope of other NPAs. Both the Commercial and Corporations and Intellectual Property NPAs are themselves comprised of various subpractice areas.25

25 CPN-1 at [3.4] and [3.5]. The Commercial and Commercial NPA comprises six sub-areas: commercial contracts, banking, finance and insurance; corporations and corporate insolvency; general and personal insolvency; economic

Page 7 of 11 Chapter 12 Specialist Lists and Procedural Tracks regulator, competition and access; regulator and consumer protection; and international commercial arbitration. The Intellectual Property NPA comprises three sub-areas: patents; trademarks; and copyright.

12.15 Each NPA is managed by specialist judges in the area, in accordance with the practices and procedures outlined in an NPA-specific practice note, together with any applicable general practice notes, and the Federal Court Rules 2011 (Cth). The procedures outlined in each NPA practice note are specifically tailored to meet the anticipated case management needs of cases falling into that NPA. As outlined in CPN-1, however, these procedures are not fixed and the court expects the parties and their lawyers to turn their minds to the most efficient way to conduct their individual case, including, if appropriate, by way of departure from the template procedures or orders provided for in applicable practice notes.

12.16 The court’s attitude to case management and its willingness to adapt the template processes provided for in each NPA-specific practice note to the needs of individual cases is detailed in CPN-1. That practice note makes clear that, while the court will manage the resolution of the issues in dispute in any given proceeding, the

Page 475 proceeding is always the parties’ proceeding and they are the primary actors responsible for identifying the issues in dispute and ascertaining the most efficient and cost-effective method of resolving those issues.26 This will include a consideration of the most appropriate way to define the issues for the benefit of the court and other parties (for example, pleadings, concise statement, affidavit), the need for and scope of discovery, the form and sequence of the exchange of evidence (for example, witness statements, affidavits, expert reports, viva voce evidence) and the timetable to trial generally. The parties are expected, consistent with their case management obligations, to cooperate to ensure that only the real issues in dispute come before the court for determination.

26 See CPN-1 at [7.4].

12.17 CPN-1 relevantly provides: COMMENCING PROCEEDINGS Previous Practice and Procedure, Fast Track [6.3] Under the reforms introduced as part of the NCF, this practice note, the NPA practice notes and the general practice notes now set out the arrangements for practice, procedure and case management within the Court … Innovative Pleadings Processes and Expedited Hearings [6.5] Under the NCF reforms and new practice documents, parties may now seek an expedited or truncated hearing process and a tailored or concise pleading process in any NPA, where appropriate. They may seek to adopt a process set out in one NPA practice note for use in a different NPA … If a Fast Track or other expedited proceeding process is appropriate, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing.

Page 8 of 11 Chapter 12 Specialist Lists and Procedural Tracks

[6.6] The key focus of the Court will be to ensure that the most appropriate and efficient mechanisms for case management, including appropriate mechanisms suggested by the parties, are adopted when considering the nature of each case and the needs of the parties. Parties should request any truncated or expedited hearing process or modified pleading process at or before the first case management hearing. OVERARCHING PURPOSE [7.1]The overarching purpose of civil practice and procedure and case management within the individual docket system is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (‘Federal Court Act’)). [7.2] The parties and their lawyers are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose and, in particular, in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter. [7.3] This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases comfortably with overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court’s Rules should never be viewed as inflexible …

Page 476   CASE MANAGEMENT Case Management Hearings [8.4] The first case management hearing is integral to case management. The aim of the hearing is to identify issues at the earliest possible stage. At the first case management hearing, consideration will be given, in particular, to the following: •

the appropriate course of efficient preparation of the matter and the steps truly required, including: any need for discovery, the most appropriate method of preparation and presentation of evidence in light of the issues truly or likely to be in contest, and the most appropriate method of trial;

•

the possibility of listing the matter for hearing …; and

•

the available dispute resolution options, including mediation.

[8.8] … Unless otherwise specified, the docket judge will conduct a case management hearing within 5 weeks of the filing and serving of a proceeding, at a time sufficient to enable all parties to be in a position to engage fruitfully in the case management hearing. [8.9] The importance of the first case management hearing is that, if conducted properly, it should minimise or eliminate the need for further case management hearings … PRE-TRIAL CASE MANANGEMENT HEARING [13.1] A pre-trial case management hearing will generally be held, where appropriate, approximately 3 weeks prior to the scheduled trial date, with the lawyers involved in the case including the advocates retained to run the case and, if appropriate, the parties attending. The pre-trial case management hearing is an opportunity for the parties and the Court to deal with any outstanding matters or applications before the start of trial.

State and territory courts

Page 9 of 11 Chapter 12 Specialist Lists and Procedural Tracks

12.18 The manner in which the courts of each state and territory approach specialisation varies from state to state. Broadly speaking, each court comprises various divisions and lists (typically, as determined from time to time by the Chief Justice),to which cases with particular subject matter are allocated and thereafter managed by judicial officers with expertise in that subject matter. The number of divisions and lists and the subject matter of cases falling within them varies between states.For example, at the trial level, the Supreme Court of Victoria comprises three divisions (a criminal division, a commercial division and a common law division27) while the Supreme Court of New Wales comprises two divisions (a common law division and an equity division), and the Supreme Court of Queensland only one (a single trial division). Although both the Victorian and New South Wales Supreme Courts have common law divisions, their structure is not identical. For example, the Common Law Division of the Supreme Court of Victoria is broken down into 12 lists28 while the Common

Page 477 Law Division of the Supreme Court of New South Wales is broken down into only six, including one to which criminal cases are allocated.29 In all cases, each list is managed by a specialist judge or judges in accordance with case management practices detailed in list-specific practice notes.

27 See Supreme Court of Victoria Practice Note SC Gen 2 (Structure of the Trial Division). 28 See .Each list deals with a specific area of law and is managed by judicial officers with specialist expertise in the area. Each list is the subject of a list-specific practice note. The initiating party is required to nominate an appropriate specialist list upon initiation. Detailed information about appropriate types of proceedings for each list may be found in the list practice notes. 29 The remaining five lists comprise four specialist lists and a general case management list. The four specialist lists are the Administrative Law List, the Defamation List, the Possession List and the Professional Negligence List: Uniform Civil Procedure Rules 2005 (NSW) r 45.1(1). The Equity Division of the Supreme Court of New South Wales has the following lists: Admiralty List,Commercial List, Technology and Construction List, Protective List, Revenue List and Probate List: r 45.1(2).

12.19 It is a matter for each Supreme Court, in the exercise of its inherent power, to control its own practice and procedure, and each inferior court, in the exercise of statutory powers to similar effect, to determine how best to manage the cases falling within their jurisdiction. What works well for a court in one state, or with a particular jurisdiction, may not work as well for a court in or with another. Each court will be faced with a unique set of factors, such as judicial resources, caseload and case composition, which will influence its practices. Although the approach to specialisation varies somewhat from state to state and court to court, the underlying principle of allocating cases to judicial officers with expertise in the field and having template case management practices for cases with particular types of subject matter, remains.

12.20 As in the Federal Court, while default case management practices exist, the courts are flexible in their approach and parties are expected to turn their own minds to the most appropriate method of resolving their individual dispute.

Small claims

Page 10 of 11 Chapter 12 Specialist Lists and Procedural Tracks

12.21 Most jurisdictions have special, informal procedures which apply to claims under a certain value. These procedures are designed to keep the costs of resolving such cases to an absolute minimum, so that the cost of taking action to vindicate the claim does not outweigh the amount which might ultimately be recovered if the claim is successful. Without these informal procedures, it would likely be uneconomical to vindicate rights worth less than a certain amount, making such rights effectively worthless.

12.22 By way of example, claims for less than $10,000 brought in the Magistrates’ Court of Victoria proceed by way of a specialist procedure known as ‘arbitration’.30 In arbitration, no party may file or serve a reply, request for further and better particulars of a claim, counterclaim or defence, require discovery or serve a notice to admit, interrogatories or an expert witness statement.31 This is subject to a caveat in the case of claims for over $5000, where parties are required to exchange a limited list of documents by way of discovery 14 days before the arbitration, or any prehearing conference.32

Page 478

30 See Magistrates’ Court Act 1989 (Vic) s 102; Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic) O 2. 31 Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic) r 2.04. 32 Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic) r 2.05.

12.23 In conducting an arbitration, the court, while bound by the rules of natural justice, is not bound by the rules of evidence, is not required to conduct the proceeding in a formal manner and may inform itself on any matter in whatever manner it thinks fit.33 It is common practice at the hearing of an arbitration for the plaintiff ’s lawyer to simply read out a summary of the plaintiff ’s evidence and have the plaintiff confirm that summary as true and correct (or otherwise correct any errors) in the witness box, instead of spending time eliciting the plaintiff’s evidence by way of a series of non-leading questions or otherwise pre-preparing a witness statement or affidavit to stand as the plaintiff ’s evidence-in-chief.

33 Magistrates’ Court Act 1989 (Vic) s 103.

12.24 In arbitration, the quantum of costs recoverable by either side are capped at a modest sum, and costs cannot ordinarily be awarded for claims worth less than $500.34 All of these factors combine to greatly minimise the costs that would otherwise be incurred in prosecuting or defending a small claim through to trial, by both reducing the number of procedural steps parties must take (and time expended)before their dispute reaches a hearing, and by eliminating the need to put evidence into admissible form before the court will entertain it. The arbitration process

Page 11 of 11 Chapter 12 Specialist Lists and Procedural Tracks makes it viable for parties who either cannot afford legal representation, or justify the cost of such representation in view of the modest sum in dispute, to represent themselves and succeed on their claims or defences.

34 Magistrates’ Court Act 1989 (Vic) s 105.

12.25 Other jurisdictions have similar initiatives, by which the process of bringing claims of modest value to court is simplified, expedited and streamlined (and associated costs greatly minimised) having regard to the quantum in dispute.35

35 For example, the Small Claims Division of the New South Wales Local Court (for claims up to $10,000), the minor case claim procedure in the Magistrates’ Court of Western Australia (for claims up to $10,000) and the minor debt dispute procedure in the Queensland Civil and Administrative Tribunal (for claims up to $25,000).

End of Document

Chapter 13 Joinder and Collective Redress Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 13 — Joinder and Collective Redress

Chapter 13 Joinder and Collective Redress Page 479 [Current to May 2018]

Introduction

13.1 The common law has a longstanding preference for completeness in adjudication. This preference finds expression in various statutes and rules of court dating back to the Judicature Act. For example, s 29 of the Supreme Court Act of Victoria 1986 states that ‘Every court, subject to the provisions of this or any other Act, must so exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.’ The imperative of avoiding multiplicity of proceedings extends not only to resolution of the dispute/s between the parties, but also to ensure that all relevant persons with an interest in the resolution of the dispute are before the court as well. There is little value in determining a case quickly, justly and cheaply between a claimant and defendant if the very same issues need to be determined in hundreds or thousands of other claims as well. In this sense the court’s case management powers for dealing with as many issues as possible at the same time, and as many claims and defences as practical in the one proceeding, and the powers to join parties or manage largescale litigation through collective redress (class action) procedures, are crucial to further its overriding objective.

Joinder

13.2 Any person may join in proceedings, whether as plaintiffs or defendants, who are necessary and proper parties for the final resolution of a dispute. For the same reason parties can be added or substituted during the course of proceedings if it becomes clear that not all the proper parties and/or the wrong parties are before the court.

13.3 It has been said that the substantive law determines what parties are necessary to a proceeding to resolve a dispute.1 It is certainly true that substantive law may require the joinder of certain parties, without which the proceedings would be improperly

Page 480 constituted, for example in the case of joint contractors.2 However, who is a proper and necessary party is invariably a question of procedural law too for a number of reasons. First, multiplicity of proceedings creates a risk of inconsistent judgments, and inconsistency undermines confidence in the administration of justice and ultimately the rule of law. Above all else, the rule of law requires clear legal standards with which people are able to comply:

Page 2 of 39 Chapter 13 Joinder and Collective Redress something which becomes impossible in the case of mutually incompatible orders and even inconsistent findings that purport to outline general rules. Secondly, in cases of multiplicity, where the first court seized of a matter might create a binding legal precedent which could effectively determine the rights of similarly situated parties to other proceedings dealing with the same question, a problem of adequacy of representation arises. How the parties argue the case in the first proceeding has the ability to advance or prejudice the claims of other persons not before the court. Thirdly, multiplicity of proceedings creates unnecessary waste of public and private resources, and risks vexation to litigants who are forced to defend essentially the same allegations multiple times. All of this undermines the overriding objectively of dealing with cases justly at proportionate cost and within a reasonable time. Accordingly, who is a necessary party to proceedings is also a matter of procedural law.

1

B Cairns, Australian Civil Procedure, 9th ed, Thomson Reuters, Sydney, 2011, [9.10], citing Campbell v Pye (1954) 54 SR(NSW) 308 NSWLR 631

2

; Baldry v Jackson [1976] 2 NSWLR 415

; Gertsch v Roberts; Estate of Gertsch (1993) 35

.

Australian Securities Ltd v Western Australian Insurance Co Ltd (1929) 29 SR (NSW) 571

.

13.4 Plaintiffs may be joined in the same proceedings where they have a right arising out of the same transaction or event or series of transactions or events; and if separate trials were held there would be a common question of law or fact.3 All jurisdictions apart from Queensland and Tasmania give the court discretion to join plaintiffs in the same proceedings even if these two criteria are not met. Plaintiffs may be joined in the same proceedings even if they have different and not merely separate causes of action against the defendant, provided the criteria in the rules are made out.4 Where there is a common question arising out of the transaction or event, joinder is both common and appropriate.5 In the context of joinder, ‘transaction’ is not confined to contractual transactions and may include tortious acts.6

3

Federal Court Rules 2011 (Cth) r 9.02; Court Procedures Rules 2006 (ACT) r 211; Uniform Civil Procedure Rules 2005 (NSW) r 6.19; Supreme Court Rules (NT) r 9.02; Uniform Civil Procedure Rules 1999 (Qld) r 65; Supreme Court Civil Rules 2006 (SA) r 73 (the criteria are alternatives in South Australia, not cumulative requirements); Supreme Court Rules 2000 (Tas) r 179; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.02; Rules of the Supreme Court 1971 (WA) O 18 r 4.

4

Payne v Young (1980) 145 CLR 609

5

Birtles v Commonwealth [1960] VR 247

6

Bendir v Anson [1936] 3 All ER 326 (construction of a building blocking light of buildings opposite deemed a transaction); National Mutual Life Association of Australasia Ltd (No 2) [1992] 1 Qd R 133.

. ; Marino v Esanda Ltd [1986] VR 735

.

13.5 Consent is a fundamental requirement for a person to be joined as a plaintiff.7 In the absence of consent, a person must be joined as a defendant if they are a necessary and proper party for the resolution of the dispute.8 If a conflict of interest emerges

Page 481

Page 3 of 39 Chapter 13 Joinder and Collective Redress between joined plaintiffs in the course of a proceeding, the court may permit separate representation (though this power is exercised sparingly), and frequently the issue is resolved by severing one of the plaintiffs and joining them as defendants.9

7

Cameron v Hogan (1934) 51 CLR 358

.

8

Federal Court Rules 2011 (Cth) r 9.03; Court Procedures Rules 2006 (ACT) r 213; Uniform Civil Procedure Rules 2005 (NSW) r 6.20; Supreme Court Rules (NT) r 9.03; Uniform Civil Procedure Rules 1999 (Qld) r 64; Supreme Court Civil Rules 2006 (SA) r 74; Supreme Court Rules 2000 (Tas) r 179; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.03; Rules of the Supreme Court 1971 (WA) O 18 r 4.

9

Goold and Porter Pty Ltd v Housing Commission [1974] VR 102

.

13.6 Apart from consent, the principal criterion upon which plaintiffs may not be joined even if they meet the qualifying criteria for joinder is if it would prejudice or delay the trial of the proceeding.10 In Payne v Young,11 the High Court found the plaintiffs were improperly joined in the action. In that case, seven plaintiffs joined in an action seeking a declaration that regulations under which fees were levied on them — for slaughter of livestock —were invalid as an excise, and sought repayment of the fees. The fees were levied for inspections of carcasses by meat inspectors at abattoirs operated by the defendants. The plaintiffs entered into different contracts with different defendants. While the High Court accepted that the plaintiffs had a common interest in the validity of the regulations, it held that the transactions of each plaintiff with a different defendant cannot be treated as a series of transactions within the meaning of the joinder rule. Murphy J, dissenting, held that series of transactions should be interpreted broadly to encompass different but similar transactions, especially where separate proceedings by the plaintiffs would give rise to a common question of law, namely the constitutional validity of the regulations.12 It is submitted that this is the better view because the very purpose of the joinder rules is to avoid multiplicity of proceedings involving the same questions, so where similar transactions give rise to common questions of fact or law, joinder is appropriate.

10 Federal Court Rules 2011 (Cth) r 9.06; Court Procedures Rules 2006 (ACT) r 217; Uniform Civil Procedure Rules 2005 (NSW) r 6.22; Supreme Court Rules (NT) r 9.04; Uniform Civil Procedure Rules 1999 (Qld) r 68; Supreme Court Civil Rules 2006 (SA) r 74; Supreme Court Rules 2000 (Tas) r 179; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.04; Rules of the Supreme Court 1971 (WA) O 18 r 5. 11 Payne v Young (1980) 145 CLR 609

.

12 Payne v Young (1980) 145 CLR 609 at 623

.

Joining defendants

13.7 The principles governing the joinder of plaintiffs also govern the joining of defendants, with the exception of consent. Defendants may be joined in the same proceeding if the claims against each of them arise out of the same transaction/s or event/s and there is a common question of fact or law between the plaintiff/s and defendants.13 All jurisdictions except Tasmania allow defendants to be joined with the permission of the court, this power being exercisable in the Federal Court and Queensland where a person ought to be joined or whose presence is necessary.14 The

Page 482

Page 4 of 39 Chapter 13 Joinder and Collective Redress courts have traditionally given a wide ambit to the rules on joinder of defendants.15 As with joinder of plaintiffs, joinder of defendants is deemed most appropriate where there is a common question of law and fact. Absent such a common question, a court is unlikely to order joinder even if the rules give it the power to do so.16 A court can refuse joinder if it would delay or prejudice the proceedings.

13 Federal Court Rules 2011 (Cth) r 6.02; Court Procedures Rules 2006 (ACT) r 211; Uniform Civil Procedure Rules 2005 (NSW) r 6.19; Supreme Court Rules (NT) r 9.02; Uniform Civil Procedure Rules 1999 (Qld) r 65; Supreme Court Civil Rules 2006 (SA) r 73; Supreme Court Rules 2000 (Tas) r 176; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.02; Rules of the Supreme Court 1971 (WA) O 18 r 4. 14 Federal Court Rules 2011 (Cth) r 9.05; Uniform Civil Procedure Rules 1999 (Qld) r 62. 15 See, for example, Guilfoyle v Bean [1926] VLR 498

.

16 Richardson v Trautwein (1942) 65 CLR 585 at 593

; Birtles v Commonwealth [1960] VR 247 at 249

.

Joining causes of action

13.8 Different causes of action may be joined in the one proceedings, and the rules do not restrict the type or number of causes of action.17 The meaning of cause of action for the purpose of the rule is set out in Read v Brown :18 every fact the plaintiff must prove to support a right to judgment. Again, consistently with the law’s preference for finality in adjudication, in some circumstances the failure to join causes of action in the one proceedings may mean any later proceedings which raise a new cause of action are struck out as an abuse of process.19 The rules relating to joining causes of action are separate and distinct from the rules on joinder of parties, but there is much common ground between them.

17 Federal Court Rules 2011 (Cth) r 9.01; Court Procedures Rules 2006 (ACT) r 200; Uniform Civil Procedure Rules 2005 (NSW) r 6.18; Supreme Court Rules (NT) r 9.01; Uniform Civil Procedure Rules 1999 (Qld) r 60 (which limits joinder to causes of action raising common questions); Supreme Court Civil Rules 2006 (SA) r 99; Supreme Court Rules 2000 (Tas) r 169; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.01; Rules of the Supreme Court 1971 (WA)O 18 r 1. 18 (1888) 22 QBD 128

at 131

.

19 See Chapter 26.

13.9 With the exception of Queensland,20 the rules do not restrict the joining of causes of action to causes that raise common questions of fact or law, but in Smith v Foley ,21 it was held that different causes of action for slander against the same defendant were improperly joined because they did not raise a common question. Not only does this decision read into the rules a requirement that is not there, it is also wrong in principle. Causes of action which raise common questions ought to be joined in the same proceedings. However, the bringing of separate proceedings for separate causes between the same parties still risks vexation to defendants, and considerable waste of public resources, even if they raise different issues. The rule in Henderson v Henderson22 (known as Anshun estoppel in Australia) is based on the premise that a plaintiff should not bring multiple proceedings when only one action would do.23 Provided that joinder would not create more inconvenience and cost than would be created by individual proceedings, the rules ought to be given their ordinary meaning and joinder permitted. Where causes of action are joined inconveniently,the court may order separate trials.24

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Page 5 of 39 Chapter 13 Joinder and Collective Redress

20 Uniform Civil Procedure Rules 1999 (Qld) r 60. 21 [1912] VLR 314

.

22 Henderson v Henderson [1843–1860] All ER Rep 378; (1843) 3 Hare 100 at 114–15 23 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 firm) [2002] 2 AC 1 [22],[25]

; [2001] 1 All ER 481, HL

. ; Johnson v Gore Wood & Co (a

; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at

.

24 Federal Court Rules 2011 (Cth) r 9.06; Court Procedures Rules 2006 (ACT) r 202; Uniform Civil Procedure Rules 2005 (NSW) r 6.22; Supreme Court Rules (NT) r 9.04; Uniform Civil Procedure Rules 1999 (Qld) r 68; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.04; Rules of the Supreme Court 1971 (WA) O 18 r 5. South Australia and Tasmania do not have corresponding rules.

Addition and substitution of parties

13.10 The court has general powers to add, substitute and remove parties.25 The rules are closely related to the general principles governing joinder of claims and parties but the court’s powers can be exercised at any stage during the course of proceedings. Since the jurisdiction to add and substitute parties is guided by the preference for completeness of adjudication, the court may order a person to be added as a party where they should have been joined initially or whose presence is necessary to enable the court to effectively and completely adjudicate on all matters in dispute. The relevant rule in South Australia is wider than other jurisdictions. Rule 27.05 of the Supreme Court Civil Rules 2006(SA) permits a person to be added who has an interest in the subject matter of the action or in a question of law or fact in the action; whose cooperation might be necessary to enforce a judgment; who has a right under an Act or rule to be joined; or who should be joined to ensure that all matters in dispute are determined and that any related dispute is determined to avoid a multiplicity of proceedings.26

25 Federal Court Rules 2011 (Cth) r 9.05 (adding party), r 9.08 (removing party); Court Procedures Rules 2006 (ACT) r 220 (adding party), r 221 (substituting a party), r 230 (removing a party); Uniform Civil Procedure Rules 2005 (NSW) r 6.24 (adding party), r 6.29 (removing party); Supreme Court Rules (NT) r 9.06; Uniform Civil Procedure Rules 1999 (Qld) r 69; Supreme Court Civil Rules 2006 (SA) rr 27.05 and 74; Supreme Court Rules 2000 (Tas) r 184; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.06; Rules of the Supreme Court 1971(WA) O 18 r 6. 26 Qantas Airways Ltd v A F Little Pty Ltd (1981) 2 NSWLR 34 (NSW CA); News Ltd v Australian Rugby League Football Ltd (1996) 64 FCR 410

(Full Federal Court).

13.11 The courts have stated the rules for adding a party should be construed liberally with the aim of ensuring related disputes are determined in the one proceeding.27 This was recently affirmed by the High Court in the case of CGU Insurance Ltd v Blakeley .28 The general principle is that it is proper to add a party where their rights against or liabilities to any other party to the proceedings would be directly affected by any order the court may make.29 This principle was set out by the Full Federal Court in News Ltd v Australian Rugby League Football Ltd, which dealt with the major commercial and legal battle over the future of Rugby League in the 1990s.The Australian Rugby League (ARL) and NSW Rugby League (NSWLR) and affiliated clubs conducted a rugby competition. Each club applied annually to the NSWRL to play in its competition. News Ltd and other companies proposed to start a rival rugby competition known as Super League. In response, ARL and NSWRL requested clubs in the existing

Page 6 of 39 Chapter 13 Joinder and Collective Redress competition sign ‘Commitment Agreements’, essentially committing themselves to play with the NSWRL competition for a period of five years. They each signed the commitment agreements. They also subsequently signed ‘Loyalty Agreements’ having substantially the same effect. Super League

Page 484 managed to sign a number of top players and coaches which were formed into clubs (the rebel clubs). In subsequent litigation, News Ltd claimed the Commitment Agreements contravened ss 45 and 46 of the (then) Trade Practices Act. The ARL, NSWRL and the clubs who remained with the League cross-claimed against those who had moved to Super League for breach of the Commitment Agreements and against News Ltd for inducing breach of contract. One of the questions the court had to deal with was whether players and coaches signing with Super League, who were not joined in the action, were necessary parties under O 6 rr 7 and 8 of the Federal Court Rules 2011 (Cth).

27 Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 28

(2016) 90 ALJR 272; [2016] HCA 2

.

.

29 News Ltd v Australian Rugby League Football Ltd (1996) 64 FCR 410 (Full Federal Court) at 523–5, citing the Privy Council decision in Pegang Mining Co Ltd v Choong Sam [1969] 2 Malayan LJ 52.

13.12 The court set out a number of principles relevant to the decisions on joinder including the general principle just mentioned. How the principle applies to the facts of each case is a matter for judgment, and matters of degree. Some cases will be straightforward. If the order sought from the court might affect or establish a proprietary or security interest in land, chattels or a monetary fund, all persons who have an interest or claim an interest in the property are necessary parties who should be joined or added. However, a person whose rights and liabilities are only indirectly or consequentially affected by the order sought are not necessary parties. The requirement that a third party’s rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with injunctive remedies.30

30 Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322

per Kirby P.

13.13 The court suggested that where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. Where the question arises after final orders have been made in the proceedings, the inquiry must be directed to the orders actually made, or which, on appeal, it is contended should be made. On the facts of the case,the court found that the players and coaches of Super League were necessary parties and ought to have been joined. The orders made by the court directly affected the Super League players’ and coaches’ rights against, or liabilities to, their Super League employer, in a way that restricted their freedom to choose the employer for whom they would work. Moreover, the failure to join the players and coaches was not cured by the fact that they were permitted to make submissions after the delivery of judgment to the trial judge regarding the form of the orders to be made by the judge. By that stage, they had been deprived of the opportunity to participate in the trial of the issues that had already been determined. Accordingly,

Page 7 of 39 Chapter 13 Joinder and Collective Redress the Full Court discharged the orders made by reason of the failure of the cross-claimants to join the Super League players and coaches in the proceedings.

Page 485

13.14 The case law on addition of parties demonstrates the courts’ primary concern is to ensure all matters in dispute are resolved, and for this purpose matters in dispute are interpreted widely. In Qantas Airways Ltd v A F Little Pty Ltd,31 the New South Wales Court of Appeal held that the reference in the rules to ‘all matters in dispute in the proceedings’ should not be limited to matters arising on the existing pleadings. It therefore allowed the plaintiff who sued an architect and engineer over the defective design of a building to add the builder as a defendant to allege alternative claims in tort and contract. If the original plaintiff does not have a cause of action, and hence there is technically no matter in dispute, the court can still add another plaintiff who does have a cause of action against the defendant.32 Similarly, where the outcome of proceedings could give rise to additional legal questions, even if the court is not required to determine those questions, the court can grant leave for a party with a legal interest in those additional legal questions to be joined. So in Re Great Eastern Cleaning Services Pty Ltd,33 the Supreme Court of New South Wales held that in deciding whether a dissolved company should be restored to the register, the court should consider the effect of restoration on both the company and other persons. Because the company’s restoration would affect tax liability, the court joined the Commissioner of Taxation as a party.

31 Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34

.

32 Hughes v Pump House Hotel Co Ltd (No 2) [1902] 2 KB 485 33 Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278

. ; cf Vandervell Trustees Ltd v White [1971] AC

912 (application to Inland Revenue Commissioners as a party to proceedings the determination of which had tax consequences was denied).

13.15 A further reason why the court might add a party is if it believes it has a sufficient interest in the dispute to be joined as a party, even if its presence is not strictly necessary to resolve all matters in dispute. In the case of United States Tobacco Co v Minister of Consumer Affairs, a tobacco company applied for a declaration that a conference held under s 65J of the Trade Practices Act 1974 to decide whether to advise the Minister to issue notices declaring that smokeless tobacco products were unsafe goods was invalid. A consumer interest NGO, the Australian Federation of Consumer Organisations (AFCO), applied to be a party to an application. AFCO had been admitted to the conference that made the decision to advise the Minister to issue the notices regarding smokeless tobacco products. The court found that it had a sufficient interest in the administrative challenge to the legality of the conference to be added as a party.

13.16 A court may also add a party with a sufficient interest in the dispute if there are concerns that without it, the relevant application may not be effectually opposed. In the case of Macquarie Bank Ltd v Lin ,34 the bank had granted a loan which was partly secured by a guarantee where the guarantor covenanted not to sell certain land. The plaintiffs were the guarantor’s parents and brought an action against the guarantor for a declaration that the guarantor hold the land on trust for them which, if successful, might frustrate the bank’s ability to enforce the guarantee. The court

Page 8 of 39 Chapter 13 Joinder and Collective Redress held the bank had a sufficient material interest for it to be joined as a defendant, and that the application might not be effectually opposed without it.

Page 486

34 [2002] 2 Qd R 188

.

13.17 A defendant can also indirectly apply for a plaintiff to be added to proceedings by asserting that the proceedings are incompletely constituted by failure to join the appropriate plaintiffs. Such an application should be brought at an interlocutory stage and not at trial, and where it is successful35 the proceedings are normally stayed to allow the existing plaintiff to apply to join the new plaintiff. No one can be joined as a plaintiff without their consent.

35 Cameron v Hogan (1934) 51 CLR 358 at 371

.

Principles for adding plaintiffs

13.18 In some jurisdictions,36 the court has a power to add co-plaintifs to existing proceedings.37 These rules are in addition to the general power to add parties where they ought to have been joined or whose presence is necessary for matters to be completely and finally determined.38 A primary consideration for the court in deciding whether to exercise this power is convenience and whether it might cause injustice to another party.39 Matters will always turn on the facts of each case, but generally the factors for and against adding a co-plaintiff are the same factors applied to all decisions as to whether joinder — in whatever form — is desirable or not.Cost and delay considerations will militate in favour of granting leave to a plaintiff, but adding complexity and adding undue burdens on the defendant beyond that which would be involved in individual proceedings will militate against relief. The court will also consider whether individual issues overbear the common issues between parties, and the most efficient use of the parties’ and the court’s resources.40

36 The Federal Court, New South Wales, the Northern Territory and Victoria. 37 Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 Immigration and Multicultural Affairs (2000) 172 ALR 172

; SZ v Minister for

.

38 In the Australian Capital Territory and Tasmania, the court can only add a plaintiff if the plaintiff ought to have been joined or whose presence is necessary: Alomes v Piggott, Wood & Baker (a firm) (2000) 9 Tas R 412 39 Bishop v Bridgelands Securities (1990) 25 FCR 311

; Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507

40 Dean-Willocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64 at 72–3

Principles for adding defendants

.

.

.

Page 9 of 39 Chapter 13 Joinder and Collective Redress

13.19 In addition to the general principles governing the addition of parties set out above, there are additional considerations a court will take into account in deciding whether to add a defendant. In particular, there must be a prima facie case against the defendant such that the defendant, if added, could not successfully bring a summary judgment application.41 There are also additional considerations where an existing defendant applies to join another defendant, because this would have the effect of forcing a plaintiff to sue someone they had not proceeded against. The usual course of action in such circumstances is for a defendant to bring contribution proceedings against a third party, but the rules on joinder do not confine the addition of defendants to cases where the plaintiff consents. In Boral Resources (Vic) Pty Ltd v Robak Engineering

Page 487 and Construction Pty Ltd,42 the plaintiff claimed a defendant ought not be joined over a plaintiff ’s objection. The Court of Appeal disagreed, holding that after the commencement of proceedings it was a matter for the court to decide whether to add a defendant where the rules permitted it and it was just and convenient to do so. Whether a defendant should be added will depend on the facts of each case. While an injustice could be done to a plaintiff in forcing them to sue someone the plaintiff does not wish to sue, an important factor in deciding whether to join the proposed defendant is whether its interests might be affected by any order the court may make. In that case, the introduction of proportionate liability created a sufficient interest to make the subcontractor a proper defendant.

41 Sharp v McGivney [1951] VLR 143 at 145 Ltd v Cooper [2004] FCA 78 at [6]–[8].

; Bradvica v Radulovic [1975] VR 434

; Universal Music Australia Pty

42 Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd [1999] 2 VR 507

.

13.20 One motive for a defendant wanting to add another defendant to the action is to create an estoppel between them in respect of the issue the court has to determine. This was the case in Walker v Commonwealth Trading Bank of Australia,43 in which the liquidator of a company applied for an order that certain payments paid to the bank, which were secured by a mortgage and guarantee, were void. The bank applied to join the mortgagor and guarantor so as to create an estoppel on the issue of validity. However, the court refused the application on the grounds that no other party was needed to determine the validity of the payments.44 Finally, applications by and against insurers to be joined as co-defendants have been successful especially where they would be liable for any judgment by the plaintiff, or where there is a dispute about whether the insurer is liable to the defendant and the plaintiff has a legal interest in establishing the insurer’s liability.45

43 Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496

.

44 Cf Re Multi-Tech Services Ltd (in liq) (1982) 30 SASR 218 , where the court permitted the joinder of a guarantor as a co-defendant on the liquidator’s application to set aside a preferential payment, as the decision as to the creditor’s liability would affect the guarantor’s liability on the guarantee. 45 Bradvica v Radulovic [1975] VR 434

; Foxe v Brown (1985) 59 ALJR 186; Finlay v Littler [1992] 2 VR 181

; CGU

Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 . In the latter case, the High Court granted the liquidators of Akron Roads Pty Ltd (in liq) leave to join CGU to the proceeding so that a declaration could be sought that CGU was liable to indemnify Mr Crewe (a former director of Akron Roads) and his company,Crewe Sharp Pty Ltd (in liq) (Crewe Sharp) under a professional indemnity policy, for breaches of the insolvency trading provisions. Due to the operation of the Corporations Act and the Bankruptcy Act it was the liquidators who stood to benefit from any liability of

Page 10 of 39 Chapter 13 Joinder and Collective Redress CGU as insurer to the insured. This was a sufficient legal interest to warrant joinder. See also CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81

.

Intervention

13.21 Intervention refers to the situation where a third party applies to intervene in the proceedings of its own motion. The consent of the existing parties is not required, but the circumstances in which intervention is permitted are limited. The rules on intervention are not uniform across jurisdictions. There are two different approaches. In the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Tasmania, Victoria and Western Australia, the power to allow intervention is limited to those situations where the intervener would qualify to be added as a codefendant on

Page 488 the defendant’s application. There is no separate power to allow intervention.46 The rules on intervention in the Federal Court and South Australia are more permissive. The courts have a general discretion to permit intervention in proceedings. The courts can place conditions on intervention including as to the intervener’s liability for costs.47

46 Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) [1974] 1 NSWLR 391 Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278

; Re Great

.

47 Federal Court Rules 2011 (Cth) r 9.12; Supreme Court Civil Rules 2006 (SA) r 89.

13.22 The courts’ approach to intervention has been marked by a general principle that the courts will grant the intervention under this general discretion only where it would be useful; that is, the intervener will contribute facts or arguments that will assist the court determine the matter, and the value of this intervention must outweigh the additional costs involved.48 An additional consideration the court may take into account is whether the intervener is representing a public or private interest.49 The Federal Court’s discretion under r 9.12 is expressly limited to cases where intervention would be useful, and the court must have regard to: •

whether the intervener’s contribution will be useful and different from the contributions of the parties;

•

whether it will unreasonably interfere with the parties’ conduct of the proceeding as they wish; and

•

any other relevant matter.

48 Trop Nominees Pty Ltd v Liquor Licensing Commissioner (1987) 46 SASR 255 Mining Pty Ltd (2004) 51 ACSR 404

. See also Wilson v Manna Hill

.

49 Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291 at [8]–[9]

.

It is suggested that the parties’ wishes as to how they conduct the proceedings should not be given much weight in the court’s calculation. Where an intervener has a legitimate interest in being before the court or would provide assistance to the court that it would not otherwise have, the existing parties’ litigation choices could never act as a trump card to deny intervention, especially in the modern era of case management where the control and conduct

Page 11 of 39 Chapter 13 Joinder and Collective Redress of the proceedings is firmly in the hands of the court, not the parties.

13.23 The High Court also has power to allow intervention in proceedings, or receive amici curaie submissions. The High Court exercises both these powers restrictively. In Levy v Victoria,50 Brennan CJ considered the principles governing the court’s powers regarding the intervention. His Honour held that the principles of natural justice require that a person’s rights not be determined without giving them an opportunity to be heard. Where a non-party would in effect be bound by a decision, they are entitled to intervene (citing the examples of admiralty cases and situations where intervener and a party are privies in estate or interest, for example beneficiaries bound by decisions against trustees). Brennan CJ also acknowledged that the High Court’s decisions could affect the legal interests of very large numbers of people indirectly, given its constitutional status as Australia’s final appellate court,but ruled that ‘Ordinarily, indirect and contingent affection of legal interests would not be sufficient interest to

Page 489 justify intervention: nothing short of substantial affection of a person’s legal interests will suffice’.51 This could be made out, for example, in the case of a party to pending litigation.

50 Levy v Victoria (1997) 189 CLR 579 at 600–1 51 Levy v Victoria (1997) 189 CLR 579 at 600–1

per Brennan CJ. per Brennan CJ, citing Dixon J in Australian Railways Union v

Victorian Railways Commissioners (1930)44 CLR 319 at 331 : ‘I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening.’

13.24 The reasons provided by Brennan CJ for this restrictive approach are problematic. His Honour stated that persons indirectly affected by the court’s decision did not need to intervene because: The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant’s legal interest is simply the inevitable consequence of the exercise by this Court of its jurisdiction as the final Court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interests will be affected by the decision.52

What this reasoning overlooks is the possibility that the interests of indirectly affected persons are not adequately represented by the persons who are before the court. Just because a party validly commences proceedings does not demonstrate an ability to adequately represent the interests of other similarly situated persons. Taken to its logical conclusion, Brennan CJ’s reasoning suggests that even the representation of the parties before the court is symbolic, for the court can be relied on to produce the correct result in any event. No one schooled in a common law adversarial system would accept such a contention, given the accepted forensic value of allowing parties to advance legal argument and test argument advanced by their opponents. Moreover, the contention is contradicted by the High Court’s own rules on amici curiae, which provide that a friend of the court may be heard where they are willing to offer the court a submission on law or relevant fact which will assist the court in a way in which the court would not otherwise have been assisted.53

52 Levy v Victoria (1997) 189 CLR 579 at 600–1

per Brennan CJ.

Page 12 of 39 Chapter 13 Joinder and Collective Redress 53 Levy v Victoria (1997) 189 CLR 579 at 600–1

per Brennan CJ.

13.25 In circumstances where it is always possible that the parties before the court do not adequately represent the interests of other similarly situated persons, and other persons could assist the court by usefully advancing different arguments from those made by the parties, the real question is whether those interests can be adequately represented, and other arguments heard, without ‘paralysing’ the jurisdiction of the courts. The practical adverse consequences of turning a court into an unruly public debating chamber provide the best argument for caution in the design of intervention and amici curiae rules. However, these practical challenges can be sensibly managed by limiting the rights of audience of non-parties whilst still providing them with the opportunity to make meaningful submissions to a court that is deciding questions of law that could affect their legal interests. This may lead to abuse by enthusiastic busybodies, but the form,content and length of such submissions will, of course, be subject to rules of court and it is ultimately for the court to decide what weight to give such submissions.

Page 490

Limitation periods

13.26 Where parties are added or substituted, a question arises when the relevant limitation period begins to run in order to determine whether the claim is statute-barred.

13.27 In almost all Australian jurisdictions, the rules operate in such a way as to preclude the addition or substitution of parties after time limits for commencing proceedings against those parties has expired.Proceedings against an added or substituted defendant commence when the amendment is effected or, in some jurisdictions, when the order adding the defendant is made.54 If a new or substituted defendant is added after the expiry of the limitation period, a limitation defence can be pleaded, and the usual practice is to refuse the addition or substitution of a new party if the limitation period for the claim against the proposed defendant has already expired. The courts will not backdate the commencement of the proceedings against the new defendant to the date the original proceedings were commenced, even if the original defendant was sued by mistake. The addition of a new party is always prospective.55

54 Federal Court Rules 2011 (Cth) r 8.22 (for originating applications), r 15.16 (for cross-claims); Court Procedures Rules 2006 (ACT) r 242; Uniform Civil Procedure Rules 2005 (NSW) r 6.28; Supreme Court Rules (NT) r 9.11; Uniform Civil Procedure Rules 1999 (Qld) r 74; Supreme Court Rules 2000 (Tas) r 184; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.11; Rules of the Supreme Court 1971 (WA) O 18 r 8. 55 Philip Morris Ltd v Bridge Shipping Pty Ltd [1994] 2 VR 1

.

13.28 By contrast, the rules in Queensland expressly permit the addition or substitution of a party after the end of a limitation period in a number of defined circumstances. These circumstances, which are set out in r 69, are where:

Page 13 of 39 Chapter 13 Joinder and Collective Redress (a)

the new party is a necessary party to the proceeding because— (i) property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order;

(b)

the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally;

(c)

the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-General’s name;

(d)

the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company;

(e)

the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable;

Page 491 (f)

for any other reason— (i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or (ii) relief sought in the proceeding before the end of the limitation period can not be granted; unless the new party is included or substituted as a party.

13.29 The Queensland courts have indicated that the court’s power under s 69 will be exercised only in special or peculiar circumstances, and not if it would cause prejudice to the defendant in the conduct of a trial.56 A challenge to the validity of r 69 on the grounds it was incompatible with the Limitation of Actions Act 1974 has been rejected.57

56 Lynch v Keddell (No 2) [1990] 1 Qd R 10

; Limpus v Queensland [2004] 2 Qd R 161

57 Grotherr v Maritime Timbers Pty Ltd [1991] 2 Qd R 128

.

.

13.30 Rule 69, it is suggested, must be interpreted so that it is confined to situations where the addition or substitution will not unjustly deprive a person of an accrued limitation defence. In particular, the court should not allow the addition of a person as a defendant after the limitation period has expired if that person did not know, and had no reasonable grounds for suspecting, that he or she may be sued in respect of the matter in question. In many

Page 14 of 39 Chapter 13 Joinder and Collective Redress situations to which r 69 relates, the party to be added would know that their rights are being challenged and could not therefore have assumed that they had acquired peace from litigation. Where X, instead of Y, is named as claimant in an action for breach of contract, it will inflict no hardship on the defendant if Y were substituted for X. The defendant knew that they were being challenged in respect of the alleged breach. Nor can there be an injustice where an original party has died and their successor in title takes over. But difficulties may arise where A is named as defendant, but the claimant later realises that they should have sued B instead. If B knew all along that the claimant had made a mistake and that they, B, were the intended defendant, B will suffer no injustice if they were substituted for A. It would, however, be different where B was ignorant of the mistake and had no reason to assume that they were the intended defendant in the proceedings.

13.31 The problem has been considered by the English courts, which also maintain limited exceptions to the addition or substitution of parties after the expiry of limitation periods.58 In Horne-Roberts v Smithkline Beecham plc,59 Keene LJ accepted that instinctively ‘one is reluctant to accept an interpretation of section 35(6) which might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period’.60

Page 492 The court adopted the approach that where, in the case of an intended defendant, the claimant gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if the claimant gets the wrong description, difficulty may arise. The question is whether the intended claimant or defendant can be identified by reference to a description which is specific to the particular case.

58 CPR 19.5 allows a party to be added or substituted after the limitation period has expired only if the relevant limitation period was current when the proceedings were started, and only if it is necessary to do so (CPR 19.5(2)). ‘Necessity’is closely defined by CPR 19.5(3), which states that the addition or substitution of a party is necessary only if the court is satisfied that: ‘(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; (b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or (c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party’. 59 Horne-Roberts v Smithkline Beecham plc [2001] EWCA Civ 2006; [2002] 1 WLR 1662 60 Horne-Roberts v Smithkline Beecham plc [2001] EWCA Civ 2006 at [44] Tawwab [1991] 1 Lloyd’s Rep 201 (CA).

.

. See also The Sardinia Sulcis and Al

Collective redress procedures

13.32 There is no limit to the number of persons who can be claimants or defendants to an action. There is therefore no impediment to a large number of claimants suing together or to a large number of defendants being sued together. But multiplicity of parties, all of whom exercise their right to participate in the proceedings, may hinder the effective resolution of a dispute by causing duplication and confusion. Yet, it might be equally inefficient if each of a multitude of claimants with similar cases were required to establish their claims independently of each other, because it would require the court to deal with identical issues many times over. Similarly, multiplicity of proceedings gives rise to an obvious risk of inconsistent judgments,which undermine public confidence in the correctness of judicial decisions and hence confidence in the rule of law.

13.33

Page 15 of 39 Chapter 13 Joinder and Collective Redress To cater for these situations, all Australian jurisdictions maintain procedures for resolving identical or similar claims or defences on a collective basis.

13.34 The value of collective action in litigation is generally well understood. Joining forces with others in the same predicament or with the same problem can lead to much more effective use of resources and economies of scale, and help provide individuals and businesses effective redress for claims that would not otherwise be affordable or viable. In turn, greater levels of enforcement should also promote greater levels of compliance based on the assumption that compliance rates are at least partly influenced by the probability of enforcement. Collective redress also offers benefits to defendants, allowing them to draw a line under their liability for past events, and avoiding the cost and the vexation of having to defend effectively the same allegations in multiple actions. From the perspective of the administration of justice, collective redress procedures help the court save valuable public resources and avoid inconsistent judgments. There are, of course, a range of different collective redress procedures that can be employed, which vary in scope and ambition from representative proceedings to fully fledged opt-out class actions.

13.35 Australia’s experience can be divided into two main phases — the first, which comprises the first nine decades of the twentieth century, was influenced by English jurisprudence on the old Chancery representative procedure. In common with the English experience, the representative proceeding was a substantial failure in facilitating efficient and final determination of ‘mass harm’ disputes and avoiding multiplicity of legal proceedings with respect to those matters. The second far more successful phase began in 1992 when the Federal Parliament passed amendments to the Federal Court Act 1976 that would for the first time permit opt-out class actions in

Page 493 any action in which the Federal Court has jurisdiction.The remainder of this chapter will focus on Australia’s class action experience, but first it will briefly deal with the representative proceeding procedure.

Representative proceedings

13.36 The representative proceeding, which exists in all Australian jurisdictions apart from New South Wales,61 derives from the old Chancery procedure. Where more than one person has the same interest, a claim may be conducted by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.62 Representative proceedings may be conducted on behalf of claimants or defendants, provided that there is an identity of interest within the claimant or defendant group. The identity of interest should be determined with a view to promoting the overriding objective. The court should therefore be able to employ the representative machinery whenever it is likely to promote efficiency and expedition. Historically, however, the courts gave restrictive interpretations to the representative procedure,no doubt motivated by concerns to ensure that where a claimant (or defendant as the case may be) commenced proceedings on behalf of other persons, the representative person actually represented the interests of those other persons adequately. Accordingly,the requirement that the representative party and class share the ‘same interest’ was given a narrow interpretation by the courts so as to avoid any conflict of interests, but in doing so the courts robbed the procedure of any utility it might have had.

61 In New South Wales, the procedure has been abolished entirely in favour of class actions.

Page 16 of 39 Chapter 13 Joinder and Collective Redress 62 Federal Court Rules 2011 (Cth) r 9.21; Court Procedures Rules 2006 (ACT) r 266; Supreme Court Rules (NT) r 18.02; Uniform Civil Procedure Rules 1999 (Qld) r 75; Supreme Court Civil Rules 2006 (SA) r 80 ; Supreme Court Rules 2000 (Tas) r 335; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 18.02; Rules of the Supreme Court 1971 (WA) O 18 r 12. .

13.37 The modern tendency is to give the requirement of identity of interest a liberal interpretation, as the High Court did in Carnie v Esanda, so that the court may deal in one set of proceedings with as many claims as possible.63 In that case, the representative plaintiff and represented persons were borrowers from the defendant, who having fallen into arrears, executed variations on the loans. The representative plaintiff claimed that the variation agreements did not make certain disclosures required by the Credit Act 1984 (NSW) and were therefore void. The High Court accepted that the application was suitable for treatment as a representative proceeding. Even though all the borrowers had different causes of action, they all had the same interest in the determination as to whether the agreements complied with the legislation. In Trustees of the Roman Catholic Church v Ellis, it was suggested by Mason P that following Carnie v Esanda, a community of interest in the resolution of a question of fact or law may be sufficient for a representative proceeding for defendants even where their defences are not identical.64 Despite these recent attempts to breathe more life into

Page 494 the representative procedure, by the time the courts began doing so, the legislature had concluded that more flexible class action procedures, with greater safeguards for all class members, were needed, and as these procedures became available, the representative proceeding fell into disuse.65

63 John v Rees [1970] Ch 345 at 369–70 ; [1969] 2 All ER 274 at 282 , oft quoted in subsequent cases.The authorities were reviewed by the High Court in Carnie v Esanda Finance Corpn Ltd (1994) 183 CLR 388. 64 Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565 at [73]–[74]

.

65 Justice Bernard Murphy, ‘The Operation of the Australian Class Action Regime’, Bar Association of Queensland, The Changing Face of Practice Conference, 2013.

Class actions

13.38 The second phase in Australia’s history of collective redress has been more successful. It began with the passage of Pt IVA of the Federal Court Act in 1992 and saw Australia take a leap towards, and in some ways beyond, the US opt-out class action procedure. This period saw a significant number of cases successfully and satisfactorily resolved through the class action procedure, and considerable learning in the effective management of large-scale litigation involving numerous persons.In Australia, the debates about class actions do not revolve around the merits of the concept or even the merits of an opt-out procedure (which business lobby groups and some politicians remain strongly opposed to in Europe), but are instead focused on questions of which actions are suitable for class action treatment, the management and funding of class actions including the phenomenon of rival class actions, balancing finality and fairness in class action settlements and effective case management of class actions. Although technically not an issue of procedure, the viability of class actions also partly depends on the underlying substantive law. For example, given the large number of shareholder class actions in Australia (which according to the most recent data represent a large percentage of all class actions filed) there is considerable debate as to whether causation of loss, specifically reliance, must be proved on an individual basis or whether there should be a general legal rule deeming causation to be established based on assumptions as to how markets operate and normative values as to how markets should operate (sometimes referred to as market causation theory).66 These substantive law questions are beyond the scope of this chapter. Nor can this chapter purport to provide a detailed treatment of

Page 17 of 39 Chapter 13 Joinder and Collective Redress all aspects of class action litigation and experience.67 Instead, it provides an outline and examines in more detail some important questions about the scope and utility of the class action and possible abuses of the system.

Page 495

66 For discussion, see Justice Jonathan Beach, ‘Some Current Issues in Securities Class Actions’ (2017) 36 Civil Justice Quarterly 146. 67 Valuable discussions can be found in D Graves, K Adams and J Betts, Class Actions in Australia, 2nd ed, Thomson Reuters, Sydney, 2012, and the empirical research of Professor Vince Morabito, An Empirical Study of Australia’s Class Action Regimes — First Report: Class Action Facts and Figures, Department of Business Law and Taxation, Monash University, December 2009 (‘the First Report’); V Morabito, An Empirical Study of Australia’s Class Action Regimes — Second Report: Litigation Funders, Competing Class Actions, Opt Out Rates, Victorian Class Actions and Class Representatives, Department of Business Law and Taxation,Monash University, September 2010 (‘the Second Report’); V Morabito, ‘Clashing Classes Down Under — Evaluating Australia’s Competing Class Actions Through Empirical and Comparative Perspectives’ (2012) 27 Connecticut Journal of International Law 245 (‘the Third Report’); V Morabito and V Waye, ‘Reining in Litigation Entrepreneurs: A New Zealand Proposal’ (2011) New Zealand Law Review 323 (‘the Fourth Report’).

Australian class action regime — Federal Court, Victoria, New South Wales and Queensland

13.39 A number of Australian jurisdictions have introduced class action procedures, led by the Federal Parliament, which introduced class actions in 1992, and followed by Victoria in 2000,68 New South Wales in 201069 and Queensland in 2016.70 The Acts are essentially the same in substance; the main differences are that some legislation makes explicit what is implicit in other legislation. For example, s 166(2) of the Civil Procedure Act 2005 (NSW) expressly provides that it is possible for a representative proceeding to be pursued despite the fact that the group does not include all persons on whose behalf the proceedings might have been brought. This provision puts beyond doubt the power to bring ‘closed classes’ (that is, actions involving only some persons who had claims arising out of similar circumstances), but the power to bring closed classes has been affirmed under other legislative schemes.71 In October 2015, the Western Australia Law Reform Commission also recommended that Western Australia introduce a class action regime.

68 Through the introduction of Pt 4A of the Supreme Court Act 1986 (Vic). 69 Through the introduction of Pt 10 of the Civil Procedure Act 2005 (NSW). 70 Through the introduction of Pt 13A of the Civil Proceedings Act 2001 (Qld). 71 Multiplex Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275

.

Overview of the legislative scheme

13.40 Having regard to the substantive similarities in the class action regimes in Australia, the discussion of those regimes will focus on the oldest of them, and that which has been utilised most to date — Pt IVA of the Federal Court of Australia Act 1976 (Cth). It will also draw on case law from the state courts dealing with similar provisions in their class action legislation where appropriate.

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13.41 Part IVA of the Federal Court of Australia Act 1976 (Cth) came into effect on 5 March 1992. It set out a prescriptive regime containing detailed provisions for the commencement and conduct of class actions.

13.42 Key provisions include: 1. Qualifying criteria. Class actions can be commenced where there are claims by seven or more persons against the same person; the claims must arise out of the same, similar or related circumstances; and the claims of all those persons must give rise to a substantial common issue of law or fact. 2. Standing. Class actions can be commenced by any one of the seven or more persons who has a claim against the same person.72 A claim cannot be brought by a representative entity or special purpose vehicle. 3. Costs. Only the parties, including the representative party, are liable for costs. Class members are not liable for costs except when the court is dealing with individual issues relevant to their claim only.73 Notwithstanding the statutory

Page 496   immunity from costs enjoyed by group members, the court can take into account the circumstances of class members, and whether they are funding the litigation, in deciding whether to exercise its discretion to order the representative party to provide security for costs.74 4.

Consent and group membership. Consent is not required to be a group member,75 nor need the number of group members or their identities be disclosed in the originating process. The class must be sufficiently described, as well as the claims and common questions to which the claims give rise.76

5.

Discontinuing class actions. There is no certification process for class actions, but there are a number of grounds on which a court may order that proceedings be discontinued. These are that the class falls below seven persons;77 the cost of identifying group members and distributing any monetary award to them would be excessive;78 the costs of collective proceedings would outweigh the costs of individual proceedings; the relief sought can be obtained by means other than a representative proceeding; the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.79

6.

The right to opt out. Notice must be given to all class members of the commencement of an action and the right to opt out of the proceeding before a date set by the court by written notice.80 The court may only order that notice be given personally to class members if it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.81 The date for opting out can be extended by the court.82 Persons who opt out of the proceeding are not bound by any judgment given in it.83

7.

Adding to class membership. The definition of a class can be amended to include persons who acquired causes of action after the commencement of the proceeding, and notice requirements and periods can be extended to allow such persons to opt out of the proceeding.84

8.

Dealing with issues not common to the whole class. The court has the power to deal with issues that are not common to all class members, or relate only to individual class members, in a number of different ways. This includes the establishment of sub-groups and sub-group representatives to deal with issues

Page 497  

Page 19 of 39 Chapter 13 Joinder and Collective Redress common to that sub-group.85 The court may also permit an individual group member to appear in the proceeding for the purpose of determining an issue that relates only to the claims of that member.86 The court can also give directions for the commencement of separate proceedings to deal with individual claims or claims common only to particular sub-groups.87 In any part of a class action where the court is dealing with sub-class issues, or individual issues, it is the sub-class representative, or the individual, who is liable for the costs of that part of the action. The High Court recently affirmed that the purpose of the legislative scheme is the efficient disposal of common issues. A representative party’s role is to represent the class in respect of common issues and does not extend to individual claims or defences that group members may have. Accordingly, where individual claims and defences are not dealt with in the class action, and individual group members had no opportunity to advance them, group members will not be precluded from raising those issues in separate proceedings.88 9.

Adequacy of representation. The court has power to replace any representative party, or sub-class representative, where on the application of a class member it appears to the court that the representative party is not able to adequately represent the class or sub-class as the case may be.89

10. Collective settlement and discontinuance. A class action cannot be settled or discontinued without the approval of the court. This requirement for approval extends to part settlement of a class action of only some claims, or the claims of only some class members, by the class representative.90 Where the court approves a settlement it may make such orders as are just with respect to the distribution of any settlement moneys.91 An application for approval of a settlement must not be determined until notice of the proposed settlement has been given to group members unless the court is satisfied that it would be just to dispense with notice.92 The courts have issued guidance on communications between those proposing a settlement and class members. Such communications should clearly state the terms of the offer, the effect of accepting or rejecting the settlement, and alert group members that they can seek individual legal advice and may benefit from doing so.93 There is considerable case law on when collective settlements will be approved. Essentially, the court will only grant approval where the court is satisfied that the settlement is a fair compromise of the claim, and in the interests of all class members.94 Relevant factors identified by the courts in deciding whether this

Page 498   requirement is met include: the amount offered to each class member; the prospects of the claim succeeding at trial; the likelihood of class members obtaining judgment for an amount that significantly exceeds the settlement offer; the advice of counsel and any independent expert in relation to the issues that arise in the proceeding; the expense and time involved if the proceeding continued to judgment; and the attitudes of class members to the settlement.95 The court will be conscious of any conflicts between the class representative (who is solely liable for costs), class counsel (who may be operating on a conditional fee basis) and class members. This adds to the importance of obtaining independent advice as to whether the settlement is fair and reasonable. 11. Individual settlements within class actions. Group members are entitled to settle their individual claims on agreed terms without any court overview; however, settlement of a class representative’s claim does require court approval.96 This requirement is difficult to explain on its face, but it is clear from the section that the legislature’s concern was that the class had sufficient notice of the withdrawal and sufficient time to organise a replacement class representative. 12. Powers of the court in determining class action. The court is granted considerable powers under the legislative scheme to resolve class actions in a way that is fair and proportionate. The court can do any one or more of the following: determine an issue of law or fact; make a declaration of liability; grant any equitable relief; make an award of damages for group members; make an aggregated damages award in respect of the total losses suffered by the class provided a reasonably accurate assessment can be made of the total losses; make such other order as the court thinks just. 13. Limitation periods. Limitation periods for class members’ individual claims are suspended while a class action is on foot.97 14. Case management. The class action legislation does not set out the court’s powers in managing class actions. But the courts can and do use their general case management powers in a way that balances the benefits of collective treatment and the need of defendants to understand the case against them and obtain particulars of the type, strength, quantum and number of claims being brought against them. This

Page 20 of 39 Chapter 13 Joinder and Collective Redress balancing exercise is particularly acute in discovery applications. The courts have taken a generally cautious approach to ordering discovery from class members, but have on occasion ordered limited particulars from sample group members to give defendants a better understanding of the case against them, especially if it might promote settlement.98

Page 499

72 Federal Court of Australia Act 1976 (Cth) s 33D. 73 Federal Court of Australia Act 1976 (Cth) s 43(1A); s 33R . 74 For further discussion, see 13.85 below. 75 Federal Court of Australia Act 1976 (Cth) s 33G. 76 Federal Court of Australia Act 1976 (Cth) s 33H. 77 Federal Court of Australia Act 1976 (Cth) s 33L. 78 Federal Court of Australia Act 1976 (Cth) s 33M. 79 Federal Court of Australia Act 1976 (Cth) s 33N. 80 Federal Court of Australia Act 1976 (Cth) ss 33X and 33J . 81 Federal Court of Australia Act 1976 (Cth) s 33Y. 82 Federal Court of Australia Act 1976 (Cth) s 33J. 83 Federal Court of Australia Act 1976 (Cth) s 33ZB. 84 Federal Court of Australia Act 1976 (Cth) s 33K. 85 Federal Court of Australia Act 1976 (Cth) s 33Q. 86 Federal Court of Australia Act 1976 (Cth) s 33R. 87 Federal Court of Australia Act 1976 (Cth) s 33S. 88 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44

.

89 Federal Court of Australia Act 1976 (Cth) s 33T. 90 See, for example, Bray v F Hoffman-La Roche Ltd [2003] FCA 1505

.

91 Federal Court of Australia Act 1976 (Cth) s 33V. 92 Federal Court of Australia Act 1976 (Cth) s 33X. 93 See, for example, Courtney v Medtel Pty Ltd (2002) 122 FCR 168 at [64]

.

94 See, for example, Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19] Corporation Ltd [2007] FCA 2008

; Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663

95 See, for example, Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399 at [14] Council [2004] FCA 972 at [22]

; Taylor v Telstra

; Taylor v Telstra Corporation Ltd [2007] FCA 2008

Electricity Services Pty Ltd [2014] VSC 663

.

; Tongue v Tamworth City ; Matthews v AusNet

.

96 Federal Court of Australia Act 1976 (Cth) s 33W. 97 Federal Court of Australia Act 1976 (Cth) s 33ZE. 98 See, for example, Thomas v Powercor Australia Ltd (Ruling No 1) [2010] VSC 489 at [56]–[57] , where Forrest J said: ‘… Powercor should be provided with sufficient information, relevant to the group members, to enable it to have some idea as to the size of the claim it has to meet in the event it is found liable to the group. As I have said, the provision of discovery by all group members is out of the question; however there should be a process by which Powercor can obtain such information in the form of particulars of loss and with accompanying substantiating

Page 21 of 39 Chapter 13 Joinder and Collective Redress documentation from, if possible, a representative sample of members.’ See also Regent Holdings Pty Ltd v Victoria (2012) 36 VR 424

.

13.43 The class action regime in the Federal Court was implemented following a report by the Australian Law Reform Commission that identified a need for collective redress procedures to reduce waste in court proceedings, to promote consistent resolution of common questions, to improve individuals’ ability to access legal remedies, and to increase enforcement of the substantive law.99

99 Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46, 1998, p 8. At p 9, the report proposes that such a procedure could ‘… enhance access to remedies where many people have suffered loss or injury as a result of the same wrongful act or similar wrongful acts of another. The ability to act together as a group in making a claim for relief could enable the cost to the individual to be reduced and ensure an effective determination of common issues; one person being able to act on behalf of the group might assist those people to know about and to pursue their rights. The result could be to enhance access to legal remedies, ensure the efficient use of resources and avoid multiplicity of proceedings.’

13.44 There was vigorous debate in the Federal Parliament about the value of introducing class actions, amid concerns that it would open the floodgates of litigation and induce substantial out-of-court settlements (regardless of the merits of a case)due to financial and reputational pressures.100

100 Commonwealth, Parliamentary Debates, House of Representatives, 26 November 1991, 3284 (Peter Costello).

Empirical evidence

13.45 Thankfully, there is a great deal of empirical evidence as to how the class action system has operated in practice in the last 25 years, due almost entirely to the research efforts of Professor Vince Morabito.101 Major findings of Morabito’s work (most of which are taken from his latest report in 2017, ‘the Fifth Report’) include: •

The number of class actions that have commenced in Australia has been modest — a total of 500 class actions between 1992 and March 2017. This constitutes an average of 20 class actions every 12 months, and the numbers have actually dropped in recent years even with an active litigation funding market.

•

Shareholder and investor class actions represent almost 50 per cent of class actions between 2005 and 2017, which is a substantial increase on the numbers

Page 500   of such actions over the first 12.5 years of the scheme’s operation. Class actions have, however, covered a very broad range of subject matters including contract-based investor class actions; competition anti-cartel class actions; major incident/disaster class actions including over bushfires, the Longford Gas Plant explosion, and the outbreak of Legionnaires disease at the Melbourne aquarium; defective product class actions; contract-based consumer and small business class actions including an action against banks in

Page 22 of 39 Chapter 13 Joinder and Collective Redress respect of penalty charges for late payments; environmental class actions covering industrial pollution; human rights, physical and sexual abuse class actions; and industrial (trade union) class actions. •

The majority of class actions settle. Rates of settlement in the six most popular categories of settlement are: investor class actions 73 per cent; mass tort class actions 70 per cent; industrial class actions 64 per cent;shareholder class actions 64 per cent; product liability class actions 58 per cent; consumer protection class actions 26 per cent.

•

The average duration of all settled class actions is 978 days.

•

The following is a list of the outcomes of class actions filed from 1 June 1992 to 31 May 2017: —

Proceeding settled pursuant to a judicially approved settlement agreement 52 per cent;

—

Proceeding discontinued by the class representative 13.8 per cent;

—

Proceeding summarily dismissed (for reasons not including want of prosecution or lack of jurisdiction) 7.8 per cent;

—

Proceeding discontinued, as a class action, by the court 7.3 per cent;

—

Proceeding discontinued, as a class action, by the class representative 5 per cent;

—

Post-trial ruling unfavourable to the class representative and the class 3.5 per cent;

—

Post-trial ruling favourable to the class representative and the class 3.3 per cent;

—

Proceeding transferred to another jurisdiction 2.6 per cent;

—

Proceeding permanently stayed 1.1 per cent;

—

Proceeding dismissed for lack of jurisdiction 1.1 per cent;

—

Post-trial ruling favourable to only a minority of the class members 0.7 per cent;

—

Post-trial ruling partly favourable to the class representative and the class 0.7 per cent;

—

Proceeding dismissed for want of prosecution 0.4 per cent.

•

There is a phenomenon of competing class actions. Thirty-four instances of competing class actions were identified by Morabito.

•

During the 17-year period from 1992 to 2009, every class action under the federal system that was supported by a litigation funder resolved in favour of the class.

Page 501

101 V Morabito, An Empirical Study of Australia’s Class Action Regimes — First Report: Class Action Facts and Figures, Department of Business Law and Taxation, Monash University, December 2009 (‘the First Report’); V Morabito, An Empirical Study of Australia’s Class Action Regimes — Second Report: Litigation Funders, Competing Class Actions, Opt Out Rates, Victorian Class Actions and Class Representatives, Department of Business Law and Taxation, Monash University, September 2010 (‘the Second Report’); V Morabito, ‘Clashing Classes Down Under — Evaluating Australia’s Competing Class Actions Through Empirical and Comparative Perspectives’ (2012) 27 Connecticut Journal of International Law 245 (‘the Third Report’); V Morabito and V Waye, ‘Reining in Litigation Entrepreneurs: A New Zealand Proposal’ (2011) New Zealand Law Review 323 (‘the Fourth Report’); V Morabito, An Empirical Study of Australia’s Class Action Regimes: The First Twenty Five Years of Class Actions in Australia,July 2017 (‘the Fifth Report’). Available online at: .

Qualitative assessment by participants/stakeholders

13.46 Unsurprisingly, there is no unanimity on the success or otherwise of Australia’s class action regime; however, it would be fair to say there is general consensus that it has worked reasonably well, and abuses are rare and

Page 23 of 39 Chapter 13 Joinder and Collective Redress adequately dealt with by the court. Ken Adams and Damian Graves, the lawyers who head Australia’s largest defence class action practice and the co-authors of a leading Australian academic text on class action, wrote in a 2010 article:102 There is a lot of hysteria surrounding class actions in Australia and unfortunately for all parties involved it can lead to some serious misconceptions about what’s happening in the local legal sector.

102 D Graves, K Adams and J Betts, Class Actions in Australia, 2nd ed, Lawbook Co, Sydney, 2012.

13.47 The Australian Law Reform Commission’s review of the civil justice system in 2000, which specifically included a consideration of the class action regime, concluded that: Procedures for representative proceedings generally appear to be working well and in accordance with legislative intentions. The Federal Court does not view such cases as more problematic than other complex cases.103

103 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 2000, p 530.

13.48 The two main corporate regulators in Australia, the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC), have expressed support for the role that class actions play in assisting the regulation of corporate misconduct. In December 2005, the then Deputy Chairman of ASIC, Mr Jeremy Cooper, stated: ASIC cautiously welcomes the emergence of the shareholder class action in Australia as a ‘self help’ mechanism whereby shareholders are able to seek damages for loss incurred at the hands of directors and advisers who negligently or dishonestly cause loss to those shareholders. … Vigilant shareholders and a vigorous, but appropriately balanced, shareholder class action landscape, will play an important part in maintaining the integrity of the equity capital market in years to come.104

104 J Cooper, ‘Corporate Wrongdoing: ASIC’s Enforcement Role’, paper presented at the International Class Actions Conference, Melbourne, 2 December 2005. See also interview with Graeme Samuel, then Head of the Australian Competition and Consumer Commission, welcoming the $41 million settlement of the Vitamins Cartel class action as ‘a lesson to those that are involved in cartels’. Samuel indicated a three-pronged approach to enforcement and redress which included penalties,jail terms for cartel operators, and private damages claims by consumers and businesses: ABC Radio National PM Program, 17 July 2006.

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13.49 Judges have also generally welcomed the class action as an effective way of managing complex litigation and a procedure that allows redress for victims of civil wrongs and a degree of deterrence (although the extent is debated) of corporate wrongdoing. For example, in 2016, Justice Jonathan Beach wrote extra-curially that: [M]y own limited observation is that securities class actions in Australia have had an influence in recent years of producing more compliance with continuous disclosure requirements than would otherwise have been the case if just regulatory enforcement proceedings had been taken. In Australia, although the corporate regulator, the Australian Securities and

Page 502 Investments Commission, can take relevant enforcement proceedings including seeking civil pecuniary penalties, class actions appear to have had a more disciplining effect on corporate behaviour, particularly in relation to informational disclosures.105

105 Justice Jonathan Beach, ‘Some Current Issues in Securities Class Actions’ (2017) 36 Civil Justice Quarterly 146 at 151. See also Kirby v Centro Properties Ltd (2008) 253 ALR 65 at [8]

per Finkelstein J; cf Mobil Oil Australia Pty Ltd v

Victoria (2002) 211 CLR 1 at 73 , where Callinan J said: ‘The question here is not whether, by their nature, group or class proceedings are oppressive to defendants, give rise to entrepreneurial litigation, in fact proliferate and prolong court proceedings, undesirably substitute private for public law enforcement or contrary to the public interest, with disadvantages outweighing a public interest in enabling persons who have been damnified but who would not, or could not bring the proceedings themselves, to be compensated for their losses. The question simply is whether the Victorian Act is valid.’

13.50 Similarly, in 2013, Justice Bernard Murphy, who was previously a plaintiff class action practitioner, stated in a conference speech that: Laws which purport to provide protections to citizens but which are not capable of being used by them are no more than an illusion, and a balanced and effective class actions regime is important in improving access to the protection of substantive laws.106

106 Justice Bernard Murphy, ‘The Operation of the Australian Class Action Regime’, Bar Association of Queensland, The Changing Face of Practice Conference, 2013.

13.51 There are, however, a number of areas of lingering concern about the operation of the class action regime. These include:

Page 25 of 39 Chapter 13 Joinder and Collective Redress •

whether the suitability criteria for bringing class actions are too narrow, denying collective resolution for claims that warrant it;

•

whether class actions lead to unmeritorious settlements in some cases;

•

whether funding models are fair and maximise the utility of the class action procedure; and

•

whether multiple proceedings can be justified given class action procedures were meant to avoid multiplicity and promote finality.

The remainder of this chapter examines these overlapping questions in more detail.

What claims are suitable for class action treatment?

13.52 As a matter of principle, the answer to this question is clear: whenever there are multiple claims giving rise to common questions of fact or law, the court should deal with those claims on a collective basis. Common questions always require common answers and the most efficient and fairest way of providing those common answers is through some form of collective redress procedure. A second order question arises as to which form of collective redress procedure may be most suitable for resolving multiple claims dealing with common questions — in some cases, joinder/consolidation may be preferable to a class action — but individual proceedings are never a superior method of resolving multiple claims involving common questions. This is because individual proceedings are either not viable at all (meaning rights go unenforced); and/or involve duplication that wastes private and/or public resources; and/or cause vexation to litigants (usually) defendants who have to defend multiple suits; and/or create a risk of inconsistent

Page 503 judgments. There is simply no way of avoiding one or more of these adverse outcomes where individual proceedings are used to resolve multiple claims raising common questions. Any procedure that does avoid them is a form of collective redress procedure.

13.53 One of the positives of the Australian scheme is that it does not include a certification process, and therefore avoids many of the irrelevant criteria used in certification decisions in other systems (such as whether a class action would be superior to other forms of dispute resolution) but unfortunately some of these criteria, and more, are brought back into the equation through the court’s discretionary power to order that class actions no longer continue in that form. As previously mentioned,107 s 33C of the Federal Court Act simply identifies the threshold criteria that must be satisfied for a class action to be commenced: seven or more persons have claims against the same person which are in respect of, or arise out of, the same, similar or related circumstances and which give rise to a substantial common issue of law or fact.

107 See 13.43.

13.54 Notably, s 33C goes on to identify features of an action that are not a barrier to commencing a class action; this is a direct legislative response to the judicial tendency to read down class action statutes, and court rules permitting representative actions due to misplaced concerns about the extent to which they depart from the traditional private bi-polar model of litigation. It is worth setting out in full the circumstances in s 33C(2) that are deemed not to be a barrier to commencing a class action. Subsection 2 provides a representative proceeding may be commenced:

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(a)

whether or not the relief sought: (i) is, or includes, equitable relief; or (ii) consists of, or includes, damages; or (iii) includes claims for damages that would require individual assessment; or (iv) is the same for each person represented; and

(b)

whether or not the proceeding: (i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or (ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

13.55 All of these criteria are sound because even where any or all these circumstances exist, the court is still confronted with multiple claims that give rise to the same questions of fact or law. Denying the ability to commence a class action in these circumstances would not avoid the risk of multiplicity, and the waste, vexation and risk of inconsistent judgments that go with it. Regrettably, however, the legislation does provide the court with the power to order proceedings no longer continue as a representative action where it is ‘just’ and a range of factors are met, which, it is submitted, are irrelevant to the issue of suitability. The factors in s 33N are: (a)

the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

Page 504   (b)

all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

(c)

the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d)

it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

It is hard to envisage circumstances in which (a) would ever be met given that individual proceedings would involve some degree of duplication, but even if it could be met, separate proceedings inevitably raise a risk of inconsistent judgments.The same risk of inconsistency applies to criteria (b), (c) and (d). However, the criteria could be read as an invitation to the court to consider what form of collective resolution is suitable in these circumstances, for example consolidation of individual claims or a class action. Such an interpretation would be highly desirable for it directs the court’s attention to the best way of resolving common claims without the costs involved in multiplicity of proceedings. Although not uniform, there is case law indicating that the court’s primary concern in interpreting s 33N is to ensure that common questions are decided collectively, even if after such a determination, it may be appropriate to reconstitute the proceedings as individual proceedings for resolution of individual issues.108

108 See Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCAFC 243

.

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13.56 Section 33M also gives the court the discretionary power to discontinue class actions where the costs of identifying and distributing monetary awards to class members are excessive. This reveals a questionable policy choice by the legislature.There can be many instances where calculating the precise gains made by a wrongdoer in breach of its legal obligations can be high and even disproportionate to the losses suffered by the class. It is legitimate in those circumstances, consistently with the demands of proportionality enshrined in civil procedure and/or court statutes, to adopt methods of proof that produce approximately correct outcomes, such as making aggregate damages awards. As the Ontario Court of Appeal famously stated in the context of a breach of contract claim for systemic overcharging of credit card fees, the law cannot allow wrongdoers to avoid civil redress because the costs of calculating the size of their gain are high.109

109 Cassano v Toronto Dominion Bank [2007] ONCA 781; 87 OR (3d) 481 at [49].

13.57 The Australian scheme does permit aggregate damages awards but draws the line where the costs of distributing damages for infringement of people’s rights is disproportionate. The effect of a residual discretion not to allow meritorious claims to proceed because they may be meritorious, but of low value, is to create a potential zone of tolerated non-compliance. This could adversely affect corporate decision-making in deciding how much to invest in compliance efforts, especially if there is no credible threat of public law enforcement. Of course, in some cases the practical cost of providing individual remedies for civil wrongs may be disproportionate to the rights in issue,but in such scenarios it is incumbent upon the law to provide effective alternative remedies. The most obvious possibility in a s 33M scenario is a cy pres award, which regrettably the court does not have power to award under the legislative scheme.110

Page 505

110 For discussion of the value of cy pres awards, see R Mulheron, The Modern Cy Pres Doctrine: Applications and Implications, Taylor & Francis, London, 2007.

Are available funding mechanisms consistent with the goals of the class action regime?

13.58 Despite the economies generated by collective action procedures, funding them is rarely cheap and rarely without risk. In systems such as Australia’s that have two-way cost shifting, in practice the risk of funding a class action includes the risk of an adverse costs order. Therefore funding rules are of the utmost importance in designing class action rules. The court as guardian of the administration of justice should never be concerned with the commercial interests of individual private funders. However, in a system that has chosen private funding of civil justice rather than public funding (legal aid) models, it is the business of those administering the law (both courts and regulators) to ensure that litigation funding rules for class actions, which perform a crucial role in facilitating access to justice, make class actions commercially viable to fund, and fairly distribute the cost of funding such actions.111 Failing to adequately compensate those who bear the costs and risks of collective action jeopardises the utility of the procedure. Without commercial funding, the risks of losing the litigation, and even the costs of winning the litigation,for any one individual are usually too great to justify taking action even if there are substantial losses suffered by the class as a whole.

Page 28 of 39 Chapter 13 Joinder and Collective Redress

111 Money Max Int Pty Ltd v QBE Insurance Group Ltd [2016] FCAFC 148 Group Ltd (recs & mgrs apptd) (in liq) [2015] FCA 811 at [225]

; cf Blairgowrie Trading Ltd v Allco Finance

.

13.59 The biggest threat to the viability of any class action procedure is that, in seeking to avoid abuses of the system (which some fear could increase if class actions are too profitable), the legislation does not permit the contractual freedoms,or confer the court with the necessary powers, to make funding class actions financially viable. In particular, those rules and powers need to be directed towards eliminating free-riding — a phenomenon that threatens the viability and undermines the fairness of all collective actions.

13.60 The risk of free-riding is generated by two key features of the Australian legislation. First, class actions are commenced by a representative party who is responsible for all costs, and also bears the risk of adverse costs. The disincentives to acting as a representative are obvious: it bears substantial costs, and the risk of adverse costs, for no advantage beyond their own recovery. Unsurprisingly, therefore, most shareholder class actions (and many other class actions) are funded by third party litigation funders. Typically, a litigation funder will assume the obligation to pay the claimants’ lawyers, as well as the risk of adverse costs and any security for costs, in exchange for a percentage of any return by way of judgment or settlement. However, without intervention by the court, a funder is only contractually entitled to a percentage of a class member’s recovery if it had executed a funding agreement with that class member.

13.61 Secondly, class actions were designed to be brought on an opt-out basis; that is, once a defined class of claimants has been identified, the class action proceedings will bind each member of the class unless they take steps to remove themselves.There

Page 506 is, therefore, a risk in all class actions of claimants ‘freeloading’: that is, enjoying a recovery without having contributed to its costs. Where there is third party funding, the freeloader problem arises where only some members of the class have signed litigation funding agreements. In that circumstance, the claimants who have entered funding agreements give up part of their recovery in exchange for the funder paying the costs of the proceedings, enabling claimants who are not funded to recoup damages without cost.

13.62 Other jurisdictions with class action procedures are acutely aware of the inequity of the free-rider problem and the risk that, left unchecked, it could result in underuse of the procedure. Borrowing concepts from trust law and restitution,the US courts have developed a ‘common fund’ doctrine, where even without statutory authority or a contractual relationship between class members and the class representative, the court can award fees to class counsel acting for the representative claimant out of the damages awarded to the class as a whole. In Boeing Co v Van Gemert, the Supreme Court of the United States stated that ‘[t]he doctrine rests on the perception that persons who obtain the benefit of a lawsuit, without contributing to its cost, are unjustly enriched at the successful litigant’s

Page 29 of 39 Chapter 13 Joinder and Collective Redress expense’, and went on to observe that it ‘prevent[s] this inequity by assessing attorney’s fees against the entire fund, thus spreading the fees proportionately among those benefited by the suit’.112

112 Boeing Co v Van Gemert 444 US 472 at 478 (1980). See also Re Zyprexa Prods Liability Litigation 594 F 3d 113 at 129 (New York Court of Appeals, 2010) (‘class members who do not hire counsel nonetheless benefit from any recovery. The doctrine thus prevents the unjust enrichment of these class members at the expense of class counsel by compensating counsel in proportion to the benefit they have obtained for the entire class, rather than just the named class representatives with whom they contracted’).

13.63 Canadian jurisdictions have statutory provisions that allow class counsel, but not third party funders, to recover their fees out of any monetary award or settlement fund in favour of the class. Ontario, for example, has what is described as a ‘first charge’ for the solicitor in respect of an enforceable agreement with a representative party regarding costs and disbursements.113 Moreover, some Canadian courts have used their general power to make an ‘appropriate order for the fair and expeditious determination of the case’ to approve a funding agreement that allowed the third party funder to claim a success fee in the event of a settlement or award to the class.114

113 Class Proceedings Act 1992 (Ontario) s 32(3). 114 Class Proceedings Act 1992 (Ontario) s 12; Dugal v Manulife Financial Corp [2011] ONSC 1785; (2011) 105 OR (3d) 364

.

13.64 For some time in Australia no party had successfully obtained a ‘common fund order’. As a consequence, the primary funding model used in Australia was opt-in class actions where all group members are required to sign a funding agreement with the third party funder as a condition of class membership. Thus, all group members will — by definition — have entered into a litigation funding agreement. From the perspective of the funder, this has the advantage of certainty: the funder knows what the percentage funding commission will be, and knows how many group members will pay that commission. Such ‘tied classes’ have been upheld by the Full Federal

Page 507 Court as compatible with the letter, if not the spirit, of Australia’s opt-out class actions regime.115 The tied class funding model is cumbersome and an expensive way of funding actions, with all the transaction costs that go with locating and signing up eligible class members,116 and increases the risk of multiple proceedings.

115 Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200 . For the view that it does contravene the spirit of the legislative regime, see Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs & mgrs apptd) (in liq) [2015] FCA 811 at [225] 148 at [193]

; Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC

.

116 Admittedly, these transaction costs are continually falling with advances in communications technology.

13.65

Page 30 of 39 Chapter 13 Joinder and Collective Redress The second funding model is the use of a ‘funding equalisation order’. This is used where the class action has an ‘open class’; that is, the class comprises both funded and unfunded claimants. Only the funded claimants have an obligation to pay a percentage of their recovery to the funder. However, a funding equalisation order has the effect of requiring deductions to be made from the recovery of the unfunded claimants, which are then distributed across the whole class.By this technique, the costs of funding are shared by every claimant.117 Thus, it does not affect the quantum of the funder’s return.

117 As explained by the Full Federal Court in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [5]

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13.66 Fund equalisation orders have proved popular with some judges, and in some instances a fund equalisation order has been ordered on the grounds it was more appropriate than a common fund order. For example, in Modtech Engineering Pty Ltd v GPT Management Holdings Ltd,118 an application for a common fund order was made as part of a proposed settlement agreement reached after trial. Modtech was an open class proceeding, although 92 per cent of the group members had entered a funding agreement.119 One of the terms of the proposed settlement was that the funding commission would be deducted from the settlement owing to every group member. Gordon J did not approve that aspect of the settlement. Her Honour observed that the funder’s decision to fund the proceedings had been made on the basis that only 92 per cent of the group members had executed a funding agreement, and it had made no agreement with the remaining 8 per cent. Her Honour could identify no reason for now imposing terms on the remaining 8 per cent to which they had not agreed.120 Indeed, Gordon J expressed the view that these considerations made it ‘difficult to conceive of a circumstance in which [a common fund order] would be appropriate’.121 Gordon J was, nevertheless, of the view that the unfunded group members ought not to receive a ‘windfall’, and to that end a funding equalisation order should be made.122

118 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626

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119 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [20]

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120 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [55]–[57] 121 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [60]

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122 Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [58]

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13.67 Common fund orders are the only way a court can ensure that funding an action is commercially viable and the costs of that funding are fairly shared. Closed class actions leave the first question entirely to private negotiation, and due to the

Page 508 inequality of bargaining power between funders and class members, creates a risk of exploitation. While they avoid unfairness in the distribution of cost between class members, as there is no free-riding,closed classes either limit the utility of the class action (by not resolving all claims arising out of the same or similar circumstances) or they open up the possibility of rival proceedings backed by rival funders. Fund equalisation orders have the attraction of avoiding the glaring unfairness between class members caused by free-riding in open classes, without the need for a closed class with all the waste that goes with them. But it does not address the threat to the viability of private

Page 31 of 39 Chapter 13 Joinder and Collective Redress funding of class actions caused by free-riding. Such orders might even encourage more strategic free-riding: the more free-riding there is, the less the whole class has to pay towards the action. Obviously, if not enough of the class signs up to a funding agreement the action may not proceed at all because it is not commercially viable, but any funding mechanism that is vulnerable to ‘gaming’ is a vulnerable funding mechanism, and hardly an ideal way of ensuring class actions are adequately and fairly funded.

13.68 In 2016, the Full Court of the Federal Court of Australia in the Money Max123 case, for the first time made orders requiring all group members in a class action to pay a percentage of their settlement or judgment sum to the third party litigation funder which was funding the proceedings.124 The court left the imposition of the rate to be determined by the court at the conclusion of proceedings. However, it identified a series of matters that would be relevant to the court’s assessment of the funding rate, including the number of sophisticated class members who had entered funding agreements, the rate agreed, the market rate, and the information given to class members at the time of entering the funding agreement. The funding rate would also be affected by the extent to which class members had been informed at the time that they agreed the rate, and the level of risk involved in funding the action. The court described this latter factor as ‘critical’, and stated that it must be assessed at the commencement of proceedings to avoid ‘the risk of hindsight bias’.125

123 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148

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124 For discussion of the case, see S Wilkins, ‘Common Fund Orders in Australia: A new step in court regulation of litigation funding: Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited’ (2017) 36 Civil Justice Quarterly 133. 125 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [80]

.

13.69 Significantly, the Full Court also considered the quantum of settlement or judgment as a relevant matter. The court expressed the view that this may be particularly significant where it was very high or very low, and regarded it as ‘important to ensure that the aggregate commission received is proportionate to the amount sought and recovered in the proceeding and the risks assumed by the funder’.126

126 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [86]

.

13.70 The court acknowledged that this created undesirable uncertainty for funders: they would be assuming responsibility for legal costs in circumstances where their consideration for doing so might be altered later, and could be less advantageous.127 However, the court expected that ‘any such concerns … will diminish

Page 509 as the jurisprudence around approval of litigation funding charges develops’.128 The court expected that a balance would be struck between ‘avoid[ing] excessive or disproportionate charges to class members’ and ‘recognis[ing] the important role of litigation funding in providing access to justice’;rates would also need to be ‘commercially realistic and properly reflect the costs and risks taken by the funder’.129 In granting the power to decide what was a fair rate

Page 32 of 39 Chapter 13 Joinder and Collective Redress of commission for litigation funding, the court assumed a regulatory function. This was justified, however, because of the inequality in bargaining power between funder and claimant.130 Indeed, the court’s control of the funding arrangements was a major motivating factor in the court’s decision to make a common fund order. It emphasised ‘[t]he fact that class members’ interests will be protected by judicial oversight of the funding commission charged by the Funder is central to our decision’.131

127 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [81]

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128 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [82]

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129 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [82]

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130 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [72]

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131 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [11]

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13.71 The Full Court asserted that its decision was ‘based on the interests of justice in the extant proceeding rather than on broad policy considerations’.132 Nevertheless, policy considerations were discussed at some length in the judgment. The court observed that the aims of any class action regime included ‘enhancing access to justice and increasing the efficient use of judicial resources’by resolving similar causes of action in a single proceeding. In choosing an opt-out system for Federal Court class actions, parliament had chosen a system in which claimants — particularly vulnerable claimants — would have the possibility of redress without the need to take any positive action. However, costs were a significant impediment to this legislative aim: shareholder class actions were expensive and the applicant must bear the risk of adverse costs. Empirical research indicated a decline in the use of class actions. In this context, litigation funding had played a valuable role in encouraging the use of class actions, and ought to be regarded as a ‘standard cost … in shareholder class actions’.133

132 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [14],[179] 133 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [177]–[184]

. .

13.72 The Full Court recognised the limitations of other funding models used by litigation funders such as closed classes. Closed classes were undesirable insofar as they ‘provide a reduced level of access to justice from that which Parliament intended by its choice of an opt out regime’. They also faced the practical problems of potentially inhibiting settlement, and leading to competing classes, with attendant waste of the resources of the parties and the court. The court also explained that the practice of opening and closing the class increased the risk of conflict of interest between three groups of class members: those who were funded, those who were unfunded but registered, and those who were unfunded and did not register. The court considered that the possibility of conflicts would be reduced through the use of common fund orders.134

Page 510

Page 33 of 39 Chapter 13 Joinder and Collective Redress 134 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [193]–[199]

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13.73 The Full Court also considered that a common fund order would encourage open class proceedings — if funders were ‘permitted to charge a commercially realistic but reasonable percentage funding commission to the whole class it is less likely that funders will seek to bring class actions limited to those persons who have signed a funding agreement’.135 Although the use of common fund orders give rise to a number of practical issues that the courts will need to sensibly address (which the Full Court in Money Max was clearly conscious of) the device is undoubtedly the best way of ensuring class actions are adequately and fairly funded.

135 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148 at [205]

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Potential abuses of the system

13.74 The key question is whether any possible abuses created by class actions can be dealt with in a way that does not undermine the utility of the class action procedure. While it would be wrong to assert that class action procedures are not liable to abuse, a proper understanding of the sources of abuses suggests that class actions are often the best way of dealing with them.

13.75 There are three main potential sources of abuse: 1. The risk the class action leads to unmeritorious suits and unmeritorious settlements. 2. The risk of exploitation of class members or inadequate representation caused by principal/agency problems (the lawyer/funder is usually the real principal and frequently does not share the same interests as some or all class members). 3. The abuse of the system caused by competing class actions and the waste and risk of inconsistency that goes with it. Each of these risks of abuse is further considered below.

13.76 It is widely accepted that merely allowing class actions, even actions funded on a for profit basis, does not per se increase the risk of unmeritorious suits. Blackmail suits may be a significant problem in the United States but the institutional factors that create opportunities for such suits do not exist in Australia. We do not have the unpredictable civil jury and its ability to inflict punitive damages which generate so much pressure on US class defendants. Besides, the US court has the power to deny certification where actions are brought to exert undue pressure on defendants.136 If we are concerned to avoid pressure on defendants then we should be equally concerned about the obstacles that plaintiffs face and which generate anti-suit pressure. While making courts more accessible, and funding access to justice more profitable to third parties, invariably creates a risk that some litigants and funders will try to abuse the system, this is not an argument against class actions but instead concerns how

Page 34 of 39 Chapter 13 Joinder and Collective Redress class actions should be regulated and managed. For the absence of both the capacity to litigate, and rational economic incentives to do so, also provides incentives to multinational companies to breach competition and consumer laws either deliberately

Page 511 or through underinvestment in compliance initiatives at the expense of those who buy or use their goods and services.

136 For an example of a case that was denied certification because of the possible blackmail effect, see Rhone Poulenc Rorer F 3d 1293 (7th Circuit 1995) (Posner J).

13.77 Weak collective actions that are litigated fall into two distinct types. The first are truly weak in the sense that the common issues of law and fact underlying the claims have little prospects of success, so that all of the claims are necessarily weak. Such claims should present no greater difficulty to the court than those presented by weak individual claims since such claims can be disposed of by summary judgment. Additionally, a collective claim may be unmeritorious because it encompasses unmeritorious as well as meritorious claims; what we may call ‘mixed bag’ class actions. Mixed bag actions may represent genuine differences between the strengths of individual claims (for example due to causation difficulties faced by, or defences available against, some individual class members) but mixed bag class actions may also be the product of people mistakenly or fraudulently claiming to be members of the class as part of a bandwagon effect. The difficulty of separating meritorious from unmeritorious claims exists whatever form of legal procedure is used for resolving claims.

13.78 Whatever the system, once the common issues have been resolved, the focus of the proceeding will shift to assessing whether an individual’s claim falls within the parameters of the defendant’s liability as found by the court and whether the defendant has any individual defences against such persons.

13.79 While it is true that defendants are not always able to gauge accurately the strength of individual claims in advance of determination of common questions — because a balance needs to be struck between the need to provide individual particulars and the need to achieve economy of scale — there is nothing in the Australian legislative framework that prevents full scrutiny of sub-class issues or even individual issues once common questions have been resolved.137

137 See Federal Court of Australia Act 1976 (Cth) ss 33Q, 33R and 33S.

13.80 Accordingly, individual weak claims cannot fly ‘under the radar’ undetected in a class action that comprises many or mostly good claims, because the class part of the claim will only ever resolve the common questions. Dealing on a

Page 35 of 39 Chapter 13 Joinder and Collective Redress class-wide basis with the legal or factual questions that are common to the class will not prevent a defendant from raising defences against individual members. Nor will it relieve the requirement on individual members to prove their entitlement to damages and the amount of that entitlement. At this point the defendant will be able to fully scrutinise each individual claim, and the evidentiary challenges of defeating weak claims are neither harder nor easier than they are in individual proceedings.Only in cases where damages are assessed on an aggregate basis is there some risk of ‘over compensation’ due to a lack of scrutiny of individual claims, but that creates an equal risk of ‘under compensation’. Such approximate calculations of losses to the class as a whole are justified where they represent a proportionate means of resolving disputes.

13.81 Similarly, defendants do not always take advantage of the opportunity to scrutinise individual claims, instead preferring to settle class actions on a collective basis. These decisions also generally reflect a sensible cost-benefit proportionality analysis.

Page 512 There are, however, legitimate concerns that at least in some cases defendants settle suits that they believe to be entirely without merit because the costs (both financial and non-financial) of successfully defending an action would exceed the costs of settling.138

138 K Adams, Issues and Challenges in Resolving Class Actions, Commercial Law Conference, Supreme Court of Victoria, 2012.

13.82 Obviously, this pressure is ameliorated somewhat in Australia where litigation funders bear the risk of an unmeritorious claim failing and typically bear the risk of paying the defendants costs too. But before boldly declaring no private law firm or private litigation funder would fund an unmeritorious claim, one has to factor into the equation the probability that, if necessary, a weak claim could be settled even on modest terms. Given most cases settle,and class actions settle more than most cases, it is submitted that a commercial understanding that even weak claims can be settled on break-even terms (or where losses can be minimised) could lead to plaintiff lawyers and litigation funders launching actions that are more speculative than would otherwise be the case in systems where the probability that weak claims would be dismissed (with adverse cost consequences) was higher.

13.83 One possible example of this kind of speculative claim is Taylor v Telstra,139 which concerned an alleged breach of continuous disclosure obligations to the market. The case ultimately settled for a small fraction of the amount the claim was originally stated to be worth. The $5 million settlement included a $1.25 million payment to Slater & Gordon towards its legal and administrative costs, leaving a maximum of $3.7 million for shareholders. Each member would be entitled to between 1 cent per share and a capped maximum of 5 cents per share, the actual amount depending on how many eligible class members claimed compensation. Bernard Murphy, then head of a rival claimant class action law firm, described the settlement ‘as a good example of a case that should never have been issued, and legal fees that should not have been required to be paid by the defendant’.140

139 Taylor v Telstra Corporation [2007] FCA 2008

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Page 36 of 39 Chapter 13 Joinder and Collective Redress 140 Quoted in S Moran, ‘Blackburn Slams Slaters over Telstra’, The Australian, 16 November 2007.

13.84 Yet the proposed settlement was approved by the Full Court as being a fair and reasonable compromise of the claim. The case demonstrates the limitations of relying on judicial approval of class settlements to weed out unmeritorious cases. The institutional reasons are fairly clear. If the court were to reject the settlement outright, this risked doing more harm than good. Plaintiff ’s counsel may decide to ‘roll the dice’ on the speculative claim; it would likely lose at trial, and leave the class representative with a large adverse costs order, and the defendant with a large bill for unrecoverable legal costs. It is submitted that the only way to avoid such speculative suits leading to unmeritorious settlements is for better policing of the gate-keeping rules at commencement — in particular, a far more robust use of summary judgment procedures is warranted, combined with security for costs orders where appropriate.

13.85 There is a substantial body of case law on when it is appropriate to order security for costs in class actions as well as what constitutes appropriate security. The courts have made it clear that the representative nature of class actions,in which litigation is brought on behalf of others, militates in favour of awarding security, and

Page 513 security may be awarded even against an impecunious natural person. Factors the court will take into account include: •

the identity and circumstances of the group members;

•

the source of funding of the proceedings including whether it is commercially funded; and

•

the merits of the claims.

The case law demonstrates the courts’ willingness, even eagerness, to use their discretionary power to order security so as to protect defendants’ entitlement to costs in the event that the litigation against them is unsuccessful.141 In Madgwick v Kelly ,142 the court ordered security for costs even though it was not commercially funded on the grounds that group members could be expected to contribute security. The decision is questionable in principle given it violates the spirit, albeit not the letter, of the statutory immunity from adverse costs that group members enjoy under the legislative scheme. An emerging issue is whether after the event (ATE) insurance policies in which the insurer agrees to indemnify the insured against an adverse costs order will constitute adequate security. In DIF III Global Co-Investment Fund LP v BBLP LLC 143 and Australian Property Custodian Holdings Ltd (in liq) (rec and mgr apptd) v Pitcher Partners 144 (the ‘DIF’ and ‘APCHL’ decisions), the Supreme Court of Victoria determined that a deed of indemnity provided by an ATE insurer directly to a defendant constituted satisfactory security for the defendant’s costs.However, in Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd ,145 the court rejected as adequate security a bare ATE insurance policy which indemnified the insured on the grounds it did not provide the same level of protection as a deed of indemnity directly in favour of the defendant. Given the test for adequate security is whether the proposed security is sufficient rather than what is the best form of security available, the decision in Petersen may be a costly and unnecessary obstacle in the way of claimants pursuing reasonably arguable claims.146

141 See, for example, Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [252] 142 [2013] FCAFC 61

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143 [2016] VSC 401

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Page 37 of 39 Chapter 13 Joinder and Collective Redress 144 [2016] VSC 399

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145 [2017] FCA 699

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146 The English courts have accepted ATE insurance policies as adequate security: Premier v PwC & Lloyds [2016] EWHC 2610 (Ch); Geophysical Service Centre Co v Dowell Schlumberger (ME) Inc [2013] EWHC 147 (TCC).

13.86 The other form of potential unfairness in class actions — the risk of exploitation or inadequate representation of class members — which is an inherent agency cost and particularly acute in class actions147 — is policed as well as it possibly could be under the legislative scheme, including the courts’ oversight of settlement proposals. The jurisprudence is clear that the courts are particularly sensitive to potential conflicts between class representative, class counsel, litigation funder and group members, and will make

Page 514 sure that proposed settlements fairly distribute the benefits of the settlement between class members taking into account the potential rewards and risks of proceeding to trial.148

147 In opt-out class actions there does not need to be a lawyer–client relationship, which creates an acute principal–agency problem, by increasing the likelihood that class counsel put their own interests before those of the class.As a consequence, there can be significant disparity of recovery by the agent/lawyer on the one hand, and the class/principals on the other in class action settlements. For discussion see, for example, A Miller, ‘Some Agency Problems in Settlement’(1987) 16 Journal of Legal Studies 189. 148 See 13.42(10) above.

13.87 That leaves abuse of the system (and to defendants) through the phenomenon of competing class actions. This is a real problem which the Australian courts are yet to satisfactorily tackle, or even properly acknowledge. How did a system designed to avoid duplication lead to the courts accepting it as a legitimate part of the system? The answer lies in the courts’ worrying deference to the strategic litigation choices made by some class members (and more specifically the lawyers and funders backing their claims). Class actions are, by definition, an affirmation that defendants do not have the right to determine the form of the proceedings in which claims against them are made. But the same logic applies equally to plaintiffs.

13.88 The public interest in avoiding the risk of inconsistent judgments, and the public and private interests in achieving the overriding objective of dealing with cases justly, quickly and as inexpensively as possible, all underpin the case for using collective redress procedures to deal with common questions and to resolve those common questions in the one collective proceeding. Of course, individual class members have the right to opt out of class proceedings but this does not mean they have the right to demand individual determination of common claims. The Federal Court implicitly acknowledged this in the decision of McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd,149 in which it declined to stay a class action, or to join competing class actions covering the same common questions and the same class members. The court acknowledged it had the power to stay one of the proceedings,150 consolidate the proceedings even without the parties’ consent,151 or make a declassing order in one of the proceedings.152 However, the court declined to exercise these powers, in part out of respect for the private contractual arrangements entered into between class members and funders153 and in part because the class action legislation did not guarantee defendants that they would avoid multiplicity.154 Instead, the court chose to close one

Page 38 of 39 Chapter 13 Joinder and Collective Redress class to avoid overlapping class memberships, ordered a joint trial to prevent inconsistency, and put in place case management arrangements to minimise the costs of duplication caused by the competing classes.155

149 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947

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150 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [33]

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151 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [11]

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152 Pursuant to s 33N. 153 In McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [56] , Beach J stated: ‘I am loath to permanently stay one of the proceedings, as to do so would substantially affect the contractual funding and retainer arrangements of over 1000 group members in whichever proceedings I stayed.’ 154 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [34]–[39] 155 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [7]

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13.89 Curiously, the very factors that the court relied on in McKay when deciding which class to close could equally have been applied to deciding which action to stay. Beach J identified the following non-exhaustive factors:

Page 515   (a)

The experience of the practitioners seeking to bring the representative actions, although that factor may be confined to whether the practitioners have sufficient experience and competence to be able to properly represent the interests of class members.

(b)

The costs the practitioners expect to charge for all work performed.

(c)

The funding terms in each of the proceedings including funding terms and conditions and percentages.

(d)

The resources made available by each firm of solicitors, and their accessibility to clients.

(e)

Generally, the fact that one of the proceedings was commenced first in time carries little weight, however that will not always be the case. It may be relevant if one case has been on foot for significantly longer than the other and is therefore more advanced. Accordingly, the state of preparation of the proceedings is relevant, but will not be determinative if both proceedings will be ready for trial at the same time.

(f)

The number of group members signed up to each of the proceedings.

(g)

Whether each of the proceedings would proceed without a common fund order, and the terms of any proposed common fund order that might be sought.

(h)

The position adopted by each funder on the question of security for costs and generally their resources to meet any adverse costs order.156

All these criteria are eminently sound, and reflect similar rules in other jurisdictions for appointing class counsel,157 which operate to ensure that there are no competing class actions.

Page 39 of 39 Chapter 13 Joinder and Collective Redress 156 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [71]

.

157 See in particular United States Federal Rules of Civil Procedure r 23G.

13.90 While the court’s decision in McKay to order a joint trial avoids the risk of inconsistency, the problem of duplication and the waste it causes still remains. It would be wishful thinking to believe that even the best case management systems could avoid duplication entirely when hearing two class actions in parallel — a point that the court in Mckay itself acknowledged.158 And yet the court tolerates the duplication for no stronger reason than that the class members (and specifically the rival class counsel and rival litigation funders bringing the actions) want that duplication. That is an abdication of the court’s responsibility to manage proceedings in a way that furthers the overriding objective.

158 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 at [46]

End of Document

.

Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 14 — Discontinuance, Withdrawal and Stay of Proceedings

Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings Page 517 [Current to May 2018]

Discontinuance Introduction

14.1 Since no person can be made to litigate against his or her will, a plaintiff must be free to bring an end to the proceedings that he or she began.1 Accordingly, in each jurisdiction, a plaintiff (and cross-claimant) may discontinue all or part of a claim at any time.2 As a general rule, a discontinuance presents no bar to the plaintiff recommencing proceedings in respect of the same claim at a future time.3

1

Covell Matthews & Partners v French Wools Ltd [1972] All ER 591 (EWHC) at 594 per Graham J; The Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) (1987) 12 IPR 75 (NSWSC) at 77 per McLelland J; Bluescope Steel Ltd (formerly known as John Lysaght (Australia Ltd)) v Allianz Australia Insurance Ltd [2012] NSWSC 1178 at [33] per Stevenson J. Cf Fox v Star Newspaper Co Ltd [1898] 1 QB 636

. For discussion of party autonomy, see Chapter 11, 11.9.

2

High Court Rules 2004 (Cth) r 27.10.2; Federal Court Rules 2011 (Cth) r 26.12(1); Court Procedures Rules 2006 (ACT) rr 1160, 1161 and 1166;Uniform Civil Procedure Rules 2005 (NSW) r 12.1(1); Supreme Court Rules (NT) rr 25.02(2) and 25.03; Uniform Civil Procedure Rules 1999 (Qld) rr 303(1) and 304(1); Supreme Court Civil Rules 2006 (SA) r 107; Supreme Court Rules 2000 (Tas) rr 376(1) and 377(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 25.02(2)–(3) and 25.03; Rules of the Supreme Court 1971 (WA) O 23 r 2(1).

3

Ramesh Gupta v Australian Capital Territory [2011] ACTSC 154 at [13]

per Refshauge J.

14.2 There may be many reasons why a plaintiff may wish to discontinue proceedings. The process of discovery may have revealed a document that is fatal to the plaintiff ’s claim. An affidavit or an expert report may have suggested that the defendant has an impregnable defence. The parties may have reached a settlement, a term of which is for the proceedings to be discontinued. Or the plaintiff may have run out of funds to sustain a credible claim. In such circumstances, it is in the plaintiff’s interest to bring proceedings to an end without incurring any further costs. Prior to the advent of case management, a plaintiff was able, in practice if not in theory, to lapse into inactivity in the hope that the defendant would prefer to let sleeping dogs lie, and that the claim will come to a quiet and painless end. This is no longer possible under the case management regime provided under the modern rules of civil procedure. Courts

Page 2 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Page 518 must now ensure that timetables are complied with and have the power to see to it that litigation progresses to a conclusion. Therefore, a plaintiff that wishes to discontinue a claim cannot just fall into inactivity. Rather, the plaintiff must take steps to bring the litigation to a clear and orderly end.

14.3 A discontinuance brings an end to proceedings.4 Subject to the terms of the discontinuance, any interlocutory injunctions granted in the proceedings cease to continue.5 However, there are instances where further action may be taken in respect of the proceedings despite a discontinuance.6 An obvious example is that a defendant that was the subject of an interlocutory injunction may enforce an undertaking as to damages given by the plaintiff in support of the interlocutory injunction.7 Unlike a dismissal or final judgment, a court may grant leave for a discontinuance to be withdrawn.8 Unless any other orders are made, a discontinuance will normally involve the plaintiff paying the defendant’s costs up to the point of the discontinuance.

4

Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506 at 507

5

Email Finance Ltd v Registrar of Titles (VSC, Tadgell J, No 5636/81, 1 September 1982, unreported).

6

Gold Reefs of Western Australia Ltd v Dawson [1897] 1 Ch 115 Capital Territory [2011] ACTSC 154 at [14]

per Cox J.

, considered in Ramesh Gupta v Australian

per Refshauge J.

7

Newcomen v Coulson (1878) 7 Ch D 764

.

8

Ramesh Gupta v Australian Capital Territory [2011] ACTSC 154 at [23]

per Refshauge J.

14.4 The process of discontinuance is concerned only with discontinuing entire causes of action, not with giving up a particular remedy arising from a cause of action. A plaintiff that wishes to abandon its claim for a particular remedy but wishes to continue with its claim for another remedy will not discontinue proceedings, but will amend its pleading and, if applicable, the relief it seeks in the originating application to reflect its change in position. The plaintiff may also have to pay the costs that the defendant incurred in respect of the abandoned claim. Instead of amending, a plaintiff could, of course, simply declare at the trial that it is abandoning its claim for a particular remedy, but this is likely to attract an adverse costs order for putting the defendant to the unnecessary trouble of preparing to argue that point. Such an approach would also be inconsistent with the overriding objective.

14.5 Leave of the court or consent of defendants may be required in order to discontinue proceedings, although the rules across the jurisdictions vary as to the stage of the proceedings at which leave is required. The different approaches reflect the different ways in which courts across Australia manage the conduct of proceedings. It must, however, be stressed that the requirement for leave or consent in no way diminishes the plaintiff’s right to disengage from the proceedings. In that regard, a distinction needs to be drawn between the plaintiff’s right to disengage from the proceedings, and a discontinuance. The requirement of leave or consent to discontinue is intended to ensure that the court may make any necessary consequential orders, such as enforcing an undertaking to pay damages where the plaintiff has been the beneficiary of an interlocutory injunction. A party that disengages from the process without obtaining the required permission or consent will not be forced to continue.That is, the party is still able to disengage from the proceedings. However, in doing so,

Page 3 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Page 519 that party runs the risk of an adverse judgment or adverse costs consequences, which may well be more burdensome than if it had formally discontinued.

Discontinuance as of right

14.6 With the exception of New South Wales, in all jurisdictions, and up to a certain point in the proceedings, a plaintiff may formally discontinue without leave of the court or consent of a party (that is, the plaintiff may discontinue as of right).In the High Court, leave is not needed if a plaintiff discontinues a proceeding before the defendant files an appearance.9 In the Federal Court, Northern Territory and Victoria, no leave is required if proceedings are discontinued before the close of pleadings.10 In the Australian Capital Territory and South Australia, a plaintiff may discontinue without leave before a hearing date for the proceedings is set.11 In Queensland, Tasmania and Western Australia, leave is not required if proceedings are discontinued before the receipt by the plaintiff of a defence or the taking of any substantive steps thereafter.12 In New South Wales, leave is required in all instances unless the plaintiff has the consent of the other active parties.13

9

High Court Rules 2004 (Cth) r 27.10.2(a).

10 Federal Court Rules 2011 (Cth) r 26.01(2)(a); Supreme Court Rules (NT) r 25.02(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.02(2)(a). In the Federal Court, if the applicant has proceeded without a pleading, a proceeding may be discontinued without leave before the return date. 11 Court Procedures Rules 2006 (ACT) r 1160(1); Supreme Court Civil Rules 2006 (SA) r 107(3). 12 Uniform Civil Procedure Rules 1999 (Qld) r 304(1); Supreme Court Rules 2000 (Tas) r 376(1); Rules of the Supreme Court 1971 (WA) O 23 r 2(1). 13 Uniform Civil Procedure Rules 2005 (NSW) r 12.1.

14.7 Notwithstanding that a plaintiff may have a right to discontinue proceedings without leave, the court retains an inherent power to set aside a discontinuance if it amounts to an abuse of process, as where it has been served in order to obtain an unjust collateral advantage.14 For instance, the court would be justified in setting aside a discontinuance if it was served not to bring the dispute to an end but in order to proceed with the same claim abroad, while keeping open the possibility of renewing the proceedings,in the event that the foreign proceedings fail.15 In one case, a notice of discontinuance was set aside because the plaintiff served it in order to deny the defendant the opportunity to bring a counterclaim, having earlier given the defendant the impression that there would be such opportunity.16 Where a defendant has applied for a notice of discontinuance to be set aside, the court may permit discontinuance subject to conditions.17

Page 520

14 Castanho v Brown & Root (UK) [1981] AC 557

(HL); Packer v Meagher [1984] 3 NSWLR 486 (NSWSC); SZFOZ v

Minister for Immigration and Citizenship [2007] FCA 1137 15 Castanho v Brown & Root (UK) [1981] AC 557

.

(HL).

16 Ernst & Young v Butte Mining plc [1996] 2 All ER 623 (EWHC). 17 Castanho v Brown & Root (UK) [1981] AC 557

(HL).

Page 4 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Discontinuance by leave of the court

14.8 Where a plaintiff is unable to discontinue as of right, and is unable to procure the consent of the other parties to the proceedings, the plaintiff will require leave of the court in order to discontinue. The purpose of the requirement of leave is to ensure that justice is done between the parties.18 As Chitty LJ put it in Fox v Star Newspapers ,19 after the proceedings have reached a certain stage, the plaintiff, who has brought its adversary into court, ‘should not be able to escape by a side door and avoid the contest’. The issue being decided by the court is not whether the plaintiff should be allowed to disengage from the proceedings. As discussed above, the plaintiff retains this right. Rather, the issue is what consequences should flow from that disengagement. Accordingly, the plaintiff may continue to ‘avoid the contest’ but may, if leave has not been granted, be faced with the real risk of a dismissal of its claim. The primary advantage afforded to the plaintiff in being granted leave to discontinue is the avoidance of a dismissal of its claim and,subject to any conditions imposed by the court, the liberty to recommence proceedings.

18 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 (FCA) at 353–4 per Sheppard J. 19 [1898] 1 QB 636 WASC 279 at [141]

(EWCA) 639, referred to in IBN Corporation Pty Ltd v Banjyma Aboriginal Corporation [2009] per Hasluck J.

14.9 On an application for leave to discontinue, the court has the following options: grant leave to discontinue and make orders consequential to the granting of leave, grant leave to discontinue with conditions (such as the requirement of an undertaking not to bring fresh proceedings), or refuse the application. The discretion of the court in determining whether to grant leave is unfettered having regard to the circumstances of the case, including the extent of progression of the proceedings.20 A court will generally grant leave unless it would cause the defendant manifest injustice.21 An injustice will arise where the defendant has gained some advantage in the proceedings which would be lost if the plaintiff were allowed to discontinue the proceedings.22 Despite the general rule that a plaintiff that discontinues is liable to pay costs, this may not be enough to protect the interests of defendants. For instance, as discontinuance is not a decision on the merits, the plaintiff is free, at least in theory, to bring fresh proceedings. A defendant that has fought the claim all the way to trial may well wish to obtain not only its costs but also the benefit of a binding decision so that it may never again be troubled with regard to that particular cause of action. The grant of leave may allow the plaintiff to avoid such consequences.

20 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 (FCA) at 311–12 per Sweeney J. 21 Covell Matthews & Partners v French Wools Ltd [1972] All ER 591 (EWHC) at 594 per Graham J. 22 Covell Matthews & Partners v French Wools Ltd [1972] All ER 591 (EWHC) at 594 per Graham J; Bluescope Steel Ltd (formerly known as John Lysaght (Australia Ltd)) v Allianz Australia Insurance Ltd [2012] NSWSC 1178 at [33] Stevenson J.

per

14.10 Where a discontinuance would give rise to an injustice to the defendant, the court will seek to preserve the advantage which the defendant has gained in the proceedings. This may be by refusing leave, or by granting leave subject to conditions that preserve that advantage. For example, in Trade Practices Commission v Manfal Pty

Page 5 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Page 521 Ltd (in liq) ,23 the Federal Court refused an applicant leave to discontinue a proceeding against one respondent as it would have prejudiced the right of contribution among the remaining respondents. However, leave will not be refused only because the defendant’s interests cannot be protected fully, particularly where such interests may be protected by imposing conditions on the leave.24 Such terms may include a condition or an undertaking by the plaintiff that fresh proceedings not be brought in respect of the same claim,25 or that such a claim not be brought without leave of the court.26

23 (1991) 33 FCR 382 (FCA). 24 Visyboard Pty Ltd v A-G (Cth) (1984) 2 FCR 113 (FCAFC) at 142–3 per Woodward J; Hill (on behalf of Yirendali People Core Country Claim) v Queensland [2015] FCA 300

.

25 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 at [45]

per Martin CJ.

26 Australian International Academy of Education Inc v The Hills Shire Council [2011] NSWLEC 208 at[13] J.

per Biscoe

14.11 Leave is less likely to be granted unconditionally once the proceedings have reached a contested hearing. A plaintiff seeking to unilaterally discontinue at this stage of the proceedings may well be doing so to avoid a defeat after having had the benefit of considering the parties’ pleadings, discovery and written evidence. In such a situation, the plaintiff would be depriving the defendant of the forensic advantage it has accrued in the proceedings, such as a dismissal of the claim on the merits, if it were allowed to discontinue unconditionally.27 Nonetheless, the court must consider the plaintiff ’s reasons for attempting to discontinue. For example, there is no merit in a matter proceeding to trial where the plaintiff is unable to financially sustain the matter.28 However, it would be appropriate for the court to impose a condition that fresh proceedings not be commenced if the original proceedings are vexatious in nature.29

27 Re Mempoll Pty Ltd, Anankin Pty Ltd & Gold Kings Pty Ltd [2013] NSWSC 301 at [10]

per Brereton J.

28 Hill (on behalf of Yirendali People Core Country Claim) v Queensland [2015] FCA 300

.

29 Hill (on behalf of Yirendali People Core Country Claim) v Queensland [2015] FCA 300 at [39]

per Logan J.

Cost consequences of discontinuance

14.12 A plaintiff normally will be liable to pay the costs of each affected defendant following the discontinuance of an action. In theory, a discontinuance amounts to a tacit acknowledgment that the claim was groundless or should not have been brought.Otherwise, the plaintiff would continue to pursue its claim. Therefore, unless the court orders otherwise, a plaintiff that discontinues is liable for the costs of any defendant affected by the discontinuance.30 For example, in New South Wales, the plaintiff is liable to pay the defendant’s costs incurred in the proceedings as at the date

Page 522 on which the notice of discontinuance was filed.31 If the discontinuance is by consent, the parties may have agreed that the court make no orders as to costs.

Page 6 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

30 High Court Rules 2004 (Cth) r 27.10.6; Federal Court Rules 2011 (Cth) r 26.12(7); Court Procedures Rules 2006 (ACT) r 1163; Uniform Civil Procedure Rules 2005 (NSW) rr 12.4 and 42.19; Supreme Court Rules (NT) r 25.05; Uniform Civil Procedure Rules 1999 (Qld) r 307; Supreme Court Civil Rules 2006 (SA) r 107(4); Supreme Court Rules 2000 (Tas) r 378; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.05; Rules of the Supreme Court 1971 (WA) O 23 r 2(1). 31 Uniform Civil Procedure Rules 2005 (NSW) r 42.19(2).

14.13 The rules of each jurisdiction (with the exception of the High Court) prevent a plaintiff from bringing a fresh action based on the same or substantially the same cause of action in a discontinued proceeding until the costs arising out of the discontinued proceedings have been paid.32 Any such proceedings brought by the plaintiff will be stayed, although the plaintiff may apply to the court to have the stay lifted. Even in the absence of such a rule, the bringing of fresh proceedings without having paid costs in prior proceedings may amount to an abuse of process.33 The commencement of fresh proceedings in such circumstances is deemed to be vexatious.34 The court’s inherent jurisdiction, upon which a stay would be granted, is also not limited to proceedings based strictly on the same cause of action or with exactly the same parties.35

32 Federal Court Rules 2011 (Cth) r 26.15; Court Procedures Rules 2006 (ACT) r 1169; Uniform Civil Procedure Rules 2005 (NSW) r 12.4; Supreme Court Rules (NT) r 25.07; Uniform Civil Procedure Rules 1999 (Qld) r 312; Supreme Court Civil Rules 2006 (SA) r 108; Supreme Court Rules 2000 (Tas) r 380; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.07;Rules of the Supreme Court 1971 (WA) O 23 r 4. No such rule exists in relation to proceedings in the High Court. 33 CGU Insurance Ltd v Watson (As Trustee of the Deed of Arrangement in Respect of Greaves) [2007] NSWCA 301 at [40]

per Giles JA.

34 Rice v Henley (1915) 32 WN (NSW) 54 at 54

per Harvey J; Maples v Siteberg [2012] NSWSC 435 at [17],[25]

per McDougall J; Grace v Bennie [2017] NSWSC 172

.

35 Thames Investment & Securities plc v Benjamin [1984] 3 All ER 393 (Ch) at 394 per Goulding J; CGU Insurance Ltd v Watson (As Trustee of the Deed of Arrangement in Respect of Greaves) [2007] NSWCA 301

; Maples v Siteberg

[2012] NSWSC 435 at [25]

; Briffa v Palasovski

[2015] NSWSC 213 at [18]

per McDougall J; Duckworth v Water Corp [2013] WASC 383 per Brereton J.

Relaunching the claim after discontinuance

14.14 As explained above, the discontinuance of proceedings does not involve a determination on the merits. As a result, a plaintiff is not barred by the doctrine of res judicata or Anshun estoppel from bringing a fresh claim in respect of the same cause of action.36 The bringing of fresh proceedings is subject to the payment of outstanding costs, the currency of limitation periods applicable to the plaintiff ’s cause of action and any conditions imposed or undertakings given in respect of the prior proceedings. The inconvenience for the court and the defendants in the bringing of fresh proceedings underpins the need for scrutiny to be applied in determining whether to grant the plaintiff leave to discontinue the prior proceedings. Australian proceedings in this regard can be contrasted with other common law jurisdictions (such as in England and Wales) in which leave is required before fresh proceedings

Page 523

Page 7 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings can be instituted. A plaintiff that has discontinued proceedings in relation to defamation will require leave of the court before it can bring fresh proceedings, or any further proceedings concerning the material alleged to be defamatory in the previous proceedings.37

36 Federal Court Rules 2011 (Cth) r 26.16; Court Procedures Rules 2006 (ACT) r 1167; Uniform Civil Procedure Rules 2005 (NSW) r 12.3; Supreme Court Rules (NT) r 25.06; Uniform Civil Procedure Rules 1999 (Qld) r 310; Supreme Court Civil Rules 2006 (SA) r 108; Supreme Court Rules 2000 (Tas) r 379 ; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.06; Rules of the Supreme Court 1971 (WA) O 23 r 2. 37 Defamation Act 2005 (NSW) s 23; Defamation Act 2006 (NT) s 20; Defamation Act 2005 (Qld) s 23; Defamation Act 2005 (Tas) s 23; Defamation Act 2005 (SA) s 21; Defamation Act 2005 (Vic) s 23; Defamation Act 2005 (WA) s 23.

14.15 The court may grant a stay of proceedings if the proceedings are substantially the same as proceedings which have been discontinued as part of a settlement or an accepted offer of compromise.38 The bringing of fresh proceedings in those circumstances may amount to an abuse of process, particularly if the settlement of the previous proceedings was on the basis that the defendant bears its own costs in those proceedings.

38 Still v Investec [2014] FCA 655

.

Withdrawal

14.16 The term ‘withdrawal’ in civil procedure may refer to different actions taken by parties in proceedings. For example, it may refer to instances where a plaintiff withdraws an aspect of its case, as well as situations where a defendant seeks to withdraw its appearance or defence. The impact of these actions on proceedings varies considerably. In this section, the focus will be on a withdrawal by the defendant in respect of its defence.

Disengagement from the proceeding by the defendant

14.17 In the same way that a plaintiff may disengage from proceedings by a discontinuance, so too may a defendant disengage by withdrawing its defence.39 The withdrawal of a defence (as distinct from an appearance) by the defendant, without any further defence, allows the plaintiff to obtain a judgment by default on the claim.40 In these circumstances, it may be preferable for the defendant to reach a settlement with the plaintiff rather than face an adverse judgment and an adverse costs order.

39 High Court Rules 2004 (Cth) r 27.10.2; Federal Court Rules 2011 (Cth) r 26.11(1); Court Procedures Rules 2006 (ACT) rr 1162 and 1164; Uniform Civil Procedure Rules 2005 (NSW) r 12.6; Supreme Court Rules (NT) r 25.02(3)–(6); Uniform Civil Procedure Rules 1999 (Qld) rr 304– 306; Supreme Court Civil Rules 2006 (SA) r 107(2); Supreme Court Rules 2000 (Tas) r 376(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.02(3)–(4); Rules of the Supreme Court 1971 (WA) O 23 r 2(4). 40 Cooper-Dean v Badham [1908] WN 100. See Chapter 9, 9.4 ff.

Page 8 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Withdrawal of a matter pleaded

14.18 A defendant may wish to withdraw a matter pleaded in its defence, such as an admission. The withdrawal may be of an admission of a fact alleged by the plaintiff in the statement of claim and admitted by the defendant initially. There are a number of reasons why the defendant may wish to make such a withdrawal. The process of

Page 524 discovery may have revealed that a matter which the defendant admitted previously is incorrect. The admission may obstruct the defendant from raising a new legal argument it now wishes to advance. In such cases, it will be in the defendant’s interests to withdraw the admission.

14.19 The withdrawal of an admission has a twofold effect on a proceeding. First, it will put the plaintiff to proof on a matter which the plaintiff need not have proved previously. Secondly, it will require the court to make a determination on a newly arisen factual controversy between the parties. For this reason, a defendant wishing to withdraw a matter pleaded that leads to further matters in dispute between the parties may require either the leave of the court or the consent of the plaintiff.41

41 High Court Rules 2004 (Cth) r 27.10.2; Federal Court Rules 2011 (Cth) r 26.11(2); Court Procedures Rules 2006 (ACT) r 1162 (in relation to an intention to respond only); Uniform Civil Procedure Rules 2005 (NSW) r 12.6(2); Supreme Court Rules (NT) r 25.02(5); Uniform Civil Procedure Rules 1999 (Qld) r 308(4) ;Supreme Court Civil Rules 2006 (SA) r 54(6) (amending a pleading to withdraw an admission); Supreme Court Rules 2000 (Tas) r 376(2) (leave only);Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.02(5); Rules of the Supreme Court 1971 (WA) O 23 r 2(4) (leave only).

14.20 The principles applying to the amendment of a pleading apply equally to withdrawals of matters pleaded by the defendant.42 The balance of existing authorities has tended to favour an emphasis on doing justice between the parties. In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (CFMEU) ,43 Finn J stated: The overriding consideration is the interests of justice. The Court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal.It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given for the application to withdraw, the detriment or prejudice which might be caused to the other party and the stage which the proceedings have reached, and whether the admission is contrary to the facts. The list of relevant factors affecting the Court’s decision will plainly vary from case to case.

42 In relation to amendment of pleadings, see Chapter 7, 7.65 ff.

Page 9 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 43 [2007] FCA 1390 at [4] FCA 1323

; see also Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Ltd (No 3) [2013]

.

14.21 In Drabsch v Switzerland General Insurance Co Ltd ,44 Santow J summarised the relevant principles governing the withdrawal of an admission in a pleading as follows: 1.

Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission,especially at appeal, should not be freely granted …

2.

The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded …

Page 525   3

Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn …

4

It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission …

5

Following Cohen v McWilliam ,45 a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.

44 (16 October 1996, BC9604909, unreported) at 7–8 (full citations omitted). 45 (1995) 38 NSWLR 476

.

14.22 Caution needs to be exercised in the application of both CFMEU and Drabsch (particularly in relation to the proposition advanced in point 5). The principle that a court must place less weight on procedural efficacy is not entirely consistent with the overriding objective.46 The court must have regard to the impact the withdrawal will have on the court’s finite resources. It is not sufficient for the defendant merely to argue that it will be denied justice if it is unable to withdraw an admission, or that it is willing to pay the costs incurred by the other parties as a result of the admission being withdrawn.47 Such matters only deal with the inconvenience that the withdrawal would have on the plaintiff.

Page 10 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

46 See Chapter 1 generally. 47 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009]HCA 27 at [30] per French CJ, and [93] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Cf Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155

per Dawson, Gaudron and McHugh JJ.

14.23 In determining whether to grant leave for the defendant to withdraw an admission, the court must consider whether there has been an adequate explanation provided by the defendant for the change of position.48 In Khouri v National Bank Ltd ,49 Gzell J granted leave to a self-represented litigant to withdraw an admission made in her defence after she had given further consideration to the issues in the proceedings. It was held that leave was appropriate in circumstances where the admission was shown to be contrary to the actual facts and was made inadvertently without due consideration of material matters. It was also relevant the application to withdraw was made early in the course of the proceedings and was on the basis that the amended defence pleaded the real issues in dispute.50

Page 526

48 Langdale v Danby (1982) 1 WLR 1123 ; Celestino v Celestino (FCA, Spender, Miles and Von Doussa JJ, 16 August 1990, unreported); Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in liq) v Jones [2013] NSWSC 280 at [46] per McCallum J. 49 [2007] NSWSC 987 at [8]

.

50 Australian and New Zealand Banking Group Ltd v Londish [2012] NSWSC 809 at [10]

per Harrison AsJ.

14.24 As described in Chapter 7, a defendant may have pleaded an additional set of facts in response to an allegation by the plaintiff (a practice commonly referred to as ‘confession and avoidance’). Unlike an admission, where a defendant is seeking to withdraw factual allegations against the plaintiff, it is limiting the controversy between the parties. Accordingly, it is submitted that the same considerations as with discontinuance by the plaintiff should apply. That is, the withdrawal should be allowed unless it would cause the plaintiff some injustice, such as depriving the plaintiff of an advantage it has gained in the proceedings.

Stay of proceedings The jurisdiction to stay proceedings

14.25 As a general principle, a plaintiff that invokes the jurisdiction of a court has a prima facie right to insist that the court exercise its jurisdiction to hear and determine the matter.51 Despite this right, courts have a wide-ranging power to stay proceedings. A stay brings proceedings to a halt, except for steps allowed under the terms of the stay, by leave of the court, or by the rules. A stay can be indefinite or for a certain duration. Proceedings can only continue if a

Page 11 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings stay is ‘lifted’. In the superior courts, the power to stay proceedings is in the court’s inherent jurisdiction.52 However, all courts now have the power to stay proceedings pursuant to procedural rules or statute.53

51 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241 Flour Mills Pty Ltd (1990) 171 CLR 538 at 554

per Deane J; Voth v Manildra

per Mason CJ, Deane, Dawson and Gaudron JJ.

52 Gore v Van Der Lann [1967] 2 QB 31 ; [1967] 1 All ER 360 . But see R v Dalton [2011] SASCFC 125 , where the Full Bench of the South Australian Supreme Court recognised that the District Court of South Australia (a ‘statutory court’) had an implied power to stay proceedings for an abuse of process. Similarly, in Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 , Siopis J (at [329]) held that the jurisdiction of the Federal Court to stay a proceeding for abuse of process was more accurately described as ‘implied’ rather than ‘inherent’. 53 High Court Rules 2004 (Cth) r 8.07.2; Federal Court Rules 2011 (Cth) r 26.01 (the power of the court to give judgment where it is found that there has been an abuse of process); Supreme Court Act 1933 (ACT) s 30(4); Civil Procedure Act 2005 (NSW) s 67; Supreme Court Act (NT) s 66(2)(a);Supreme Court Rules (NT) r 23.01(1); Supreme Court Civil Rules 2006 (SA) r 192; Supreme Court Act 1932 (Tas) s 10(5); Supreme Court Rules 2000 (Tas) r 216; Supreme Court Act 1986 (Vic) s 30; Civil Procedure Act 2010 (Vic) s 29 (for contravention of the overarching obligation); Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 23.01; Supreme Court Act 1935 (WA) s 24(5A)(a).

14.26 A stay may be ordered in a number of contexts. For example, the court may stay a second proceeding brought by a plaintiff against the same defendant until it pays the defendant’s costs in a first discontinued proceeding.54 A stay may also be ordered because the proceedings concern a matter which is the subject of a dispute resolution regime in a commercial agreement.55 The court may stay proceedings until a party complies with a court order,56 such as the payment of security for costs.57

Page 527 Finally, a stay may be imposed not in the action itself but on its consequential effects, such as a stay of the execution of a judgment.58

54 See 14.12 ff. 55 See Chapter 29, 29.16 ff (in relation to mediation) and 29.36 ff (in relation to arbitration). 56 for example, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.03(3)(a). 57 See Chapter 10, 10.139 ff. 58 See Chapter 24, 24.7 ff.

Effect of a stay

14.27 A stay suspends the progress of proceedings, so that no further step may be taken while the stay is in place. Stayed proceedings continue to subsist and can be revived on the fulfilment of a condition or by permission of the court.59 Thus a stayed action is to be distinguished from an action that has been discontinued or dismissed. The decision to grant an indefinite stay is approached with caution and is ordered only in cases which are exceptional or extreme.60 There are obvious reasons for this cautious approach. A low threshold may, for example, encourage a defendant to seek a stay on ‘flimsy’ evidence for tactical reasons to avoid a legitimate claim.61 Similarly, a low threshold would entice defendants to browbeat plaintiffs in discontinuing proceedings on the threat of a stay. Accordingly, the routine grant of applications for a stay would not serve the overriding objective.

Page 12 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

59 Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [1991] 4 All ER 65 John Fairfax & Sons Ltd [1983] 3 NSWLR 126 60 Walton v Gardiner (1993) 177 CLR 378 at 392 Pty Ltd [2009] NSWCA 231 at [79] [2016]NSWCA 296 at [97]

. See also Douglas v

. per Mason CJ, Deane and Dawson JJ; Habib v Radio 2UE Sydney

per McColl JA; Toben v Nationwide News Pty Ltd (2016) 338 ALR 329;

per Ward JA.

61 Williams v Spautz (1992) 174 CLR 509 at 519

per Mason CJ, Dawson, Toohey and McHugh JJ.

14.28 A distinction exists between what has been termed an ‘absolute stay’ (or a ‘permanent stay’), which is akin to a dismissal of the action and therefore effectively brings the proceedings to an end,62 and a ‘conditional stay’, which merely suspends proceedings. In England and Wales, the former usage is no longer current and the term ‘stay’ refers only to a suspension of proceedings, as was explained by Neil LJ in ROFA Sport Management AG v DHL International (UK) Ltd .63 The Court of Appeal of England and Wales held in this case that the court may allow a person to be added as a defendant notwithstanding that the action was stayed under the terms of a compromise between the parties, thus illustrating the fact that an action remains alive during the currency of a stay. In Australia, the term ‘absolute stay’ has fallen into disuse in modern procedure with no rules or legislation distinguishing between conditional stays and absolute stays.64

62 Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 (FCA) at 354 per Bowen CJ. 63 ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743 at 749; [1989] 1 WLR 902 Civ) at 910

(EWCA

.

64 The term ‘permanent stay’ is, however, still used by courts.

14.29 Difficult questions may arise where, for example, a stay is likely in effect to determine the outcome of the dispute despite it being a temporary stay. For example, if a stay is ordered against a plaintiff pending the payment by the plaintiff of the defendant’s costs in relation to an unsuccessful interlocutory application, the stay is likely to have a permanent effect if the plaintiff is impecunious.65 Therefore, in determining whether to grant a temporary stay, a court must consider the substantive

Page 528 effect that a stay will have on the proceedings.66 If it is likely to lead to a termination of the proceedings, the court must consider whether a stay is necessary and proportionate to do justice between the parties.67

65 Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200 at [15] 66 Von Marburg v Aldred [2016] VSC 36 at [47]

per Ormiston JA.

per John Dixon J.

67 Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200 at [15]

per Ormiston JA.

Page 13 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Abuse of process

14.30 Courts have an inherent power to grant a stay to prevent an abuse of process.68 This power is in addition to powers under civil procedure rules to dismiss or strike out claims amounting to an abuse of process.69 The need for the court to prevent an abuse of its process has been likened to a duty owed by the court.70 Some confusion has arisen as to whether it is correct to say the court has an ‘inherent jurisdiction’ or an ‘inherent power’ to stay proceedings for abuse of process. The distinction between the two was outlined by Toohey J in Harris v Caladine :71 Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’.72

68 Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76

per Jordan CJ; Clyne v NSW Bar

Association (1960) 104 CLR 186 at 201 ; Jago v District Court of New South Wales (1989) 168 CLR 23 at 25 per Mason CJ; Re a Medical Practitioner (1993) 2 Tas R 90 (TSC); Moti v R (2011) 245 CLR 456; [2011]HCA 50 at [10]

per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Barlow v Law Society of The ACT [2017]

ACTSC 35 at [124] per Penfold J. See also M Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’(1997) 113 Law Quarterly Review 120. 69 See Chapter 9, 9.70 in relation to summary dismissal. 70 Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201

; Reid v New Zealand Trotting Conference

[1984] 1 NZLR 8 (NZCA) at 9 per Richardson J; Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [329] per Siopis J. 71 (1991) 172 CLR 84 at 136

, cited with approval in Australian Securities and Investments Commission v Edensor

Nominees Pty Ltd (2001) 204 CLR 559 at 590

per Gleeson CJ, Gaudron and Gummow JJ, and in Batistatos v

Roads and Traffic Authority of New South Wales (2006) 226 CLR 25; [2006] HCA 27 at [5] per Gleeson CJ, Gummow, Hayne and Crennan JJ. See also Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 25; [2006] HCA 27 at [121]–[136]

per Kirby J.

72 Citing Parsons v Martin (1984) 5 FCR 235 at 241

.

14.31 At its simplest, an abuse of process occurs when a court process is used for an improper purpose or in circumstances where it is not capable of achieving the purpose it was intended to serve.73 That is, where processes which exist to ‘administer justice with fairness and impartiality’ are converted into ‘instruments of injustice or unfairness’.74 It is immaterial that the party may be using the procedure in a

Page 529 manner ‘not inconsistent with the literal application’ of the court rules.75 The concept applies in any circumstances in which the use of the court’s processes would be ‘unjustifiably oppressive to a party’76 or would, in the words of Lord Diplock, bring the administration of justice into ‘disrepute among right-thinking people’.77 In Tyne (Trustee) v UBS AG (No 2) ,78 Dowsett J suggested that the following features could be attributed to a ‘right-thinking person’ in determining whether conduct would bring the administration of justice into disrepute:

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Without wishing to be prescriptive or exhaustive, I suggest that the right-thinking person would know that: •

litigation is expensive, for the parties and for the public purse;

•

to engage in litigation is a serious business, causing stress and inconvenience, as well as cost;

•

there are delays in the legal system, and time spent on one case cannot be spent on other cases; and

•

a democratic society depends heavily upon the existence of a fair, efficient, effective and economical process for resolving disputes.

Such a person would expect that: •

a party would only resort to the courts if he or she genuinely believed that he or she had a good case and intended to prosecute it to resolution, by judgment or agreement;

•

a party who has elected to go to court concerning a matter, would seek to resolve the whole dispute, not merely an aspect of it; and

•

where two or more persons claim to have suffered loss as the result of the same conduct, and those claimants are closely associated, personally or in business, they would generally seek to resolve their claims in the same proceedings, rather than in separate proceedings.

73 Jago v District Court of New South Wales (1989) 168 CLR 23 at 47

per Brennan J; Walton v Gardiner (1993) 177

CLR 378 at 410–11 per Brennan J; Attorney General (UK) v Barker [2000]2 FCR 1; [2000] EWHC 453 (Admin) at [19] per Lord Bingham CJ; J I H Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) Current Legal Problems 23; J A Jolowicz, ‘Abuse of Process: Handle with Care’ (1990) 43 Current Legal Problems 77; R James, ‘Delay and Abuse of Process’ (1999) 18 Civil Justice Quarterly 289; G Watt, ‘Henderson Is Dead! Long Live Henderson! — the Modern Rule of Abuse of Process’ (2001) 20 Civil Justice Quarterly 90. 74 Walton v Gardiner (1993) 177 CLR 378 at 393

per Mason CJ, Deane and Dawson JJ.

75 Hunter v Chief Constable of the West Midlands Police [1982] AC 529

at 536

per Lord Diplock.

76 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] Gageler and Keane JJ. See also PNJ v R [2009] HCA 6 at [3]

.

77 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 78 [2017] FCAFC 5 at [15]–[16]

per French CJ, Bell,

at 536

per Lord Diplock.

.

14.32 The categories of conduct that amounts to an abuse are not closed.79 The jurisdiction of the court is very wide and it is therefore neither possible nor desirable to force it into categories or to reduce it to hard and fast rules. While the case law does not provide ready-made solutions to every problem that may arise, it offers helpful illustrations of how the jurisdiction may be usefully employed. The court may therefore draw assistance from past decisions, but it is incumbent on it to consider all the circumstances of the given case in the light of current judicial policies regarding the conduct of litigation. In Rogers v R ,80 McHugh J observed that while the categories

Page 530 of conduct amounting to an abuse remain open, they have usually fallen into one of three categories, namely:81

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(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjusti–ably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

79 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] Gageler and Keane JJ; Cosenza v Gill [2016] SASC 154 at [13] 80 (1994) 181 CLR 251

per French CJ, Bell,

per Stanley J.

.

81 (1994) 181 CLR 251 at 286

.

14.33 Whether particular conduct amounts to abuse of process must now be considered by reference to the overriding objective.82 Delay that may have been tolerated in the past could now amount to abuse of process where the party has an improper motive or, indeed, no intention to proceed with the litigation.83 However, by itself, delay cannot be classified as an abuse of process without there being some additional factor that transforms the delay into an abuse.84

82 See Chapter 1. 83 See, for example, Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181 84 Jago v District Court of New South Wales (1989) 168 CLR 23 at 58

.

per Deane J; Batistatos v Roads and Traffic

Authority of New South Wales (2006) 226 CLR 25; [2006] HCA 27 ; Icebird Ltd v Winegardner [2009] UKPC 24. See also Artibell Shipping Co Ltd v Markel International Insurance Co Ltd [2008] EWHC 811 (Comm); Adelson v Anderson [2011] EWHC 2497 (QB); Morrissey v McNicholas [2011] EWHC 2738 (QB).

14.34 The purpose of the present section is to draw attention to the range of situations in which the jurisdiction to prevent abuse of process may be invoked and to the type of considerations that are involved in its exercise. However, discussion of the abuse of process jurisdiction to prevent litigation of issues that have already, or could have, been decided in previous proceedings is covered in Chapter 26, which deals with finality of litigation.

Abuse of process fills the gap where rules run out

14.35 The purpose of civil procedure is to enable the court to do justice; namely, to decide controversies fairly and in accordance with the relevant law and the true facts. The processes established by the rules, such as issuing claims and defending claims, obtaining discovery or adducing evidence, are meant to enable the parties to advance their cases and assist the court to bring litigation to a satisfactory conclusion. Procedural rules are designed to promote fairness, but no rules can be drafted with such specificity or detail to guarantee that they are never exploited to divert the process from its aim of doing justice. Even the much-expanded range of responses to party default, which

Page 16 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings the modern rules of civil procedure have brought about,cannot always provide an adequate solution.

14.36 One of the principal aims of the abuse of process jurisdiction is to enable the court to deal with problems to which the rules either provide unsatisfactory solutions, or altogether fail to address. The power to prevent such misuse of procedure by way of a stay transcends the rules.85 It provides the court with the power to prevent or disqualify procedural acts not because they are contrary to the rules, but because

Page 531 they amount to a misuse of the process such that it would bring the administration of justice into disrepute. 86 In Cox v Journeaux (No 2) ,87 Dixon J said: The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

85 N Andrews, ‘Abuse of Process in English Civil Litigation’ in M Tarrufo (ed), Abuse of Procedural Rights: Comparative Standards of Procedural Fairness, Kluwer Law International, 1998, p 65. 86 Hunter v Chief Constable of West Midlands [1981] 3 All ER 727 (HL) at 729 per Lord Diplock; R v Dalton [2011] SASCFC 125 at [29]

.

87 (1935) 52 CLR 713 at 72 per Dixon J. While his Honour was referring to a power to strike out a pleading, the reasoning has been applied in relation to the power to stay: see Gao v Zhang (2005) 14 VR 380; [2005] VSCA 200 at [12]

per Ormiston JA.

14.37 Conduct that demonstrates a litigant’s willingness to flout the court’s authority or a complete disregard of process obligations can amount to abuse of process.88 Such conduct is sometimes described as intentional and contumelious to stress that it is seen as an affront or challenge to the court’s authority. The stock example given in this context is that of wilful disobedience of a peremptory order.89 If the court were to tolerate purposeful disobedience of its rules, or wholesale disregard of rules and court orders, its standing as a court of law would be undermined. In an English case where the defendant had been accused of murdering his opponent, Lightman J said: … the conduct of Mr van Hoogstraten is such a flagrant abuse of process and such a challenge to the administration of justice that (irrespective whether a fair trial is possible) an order to this effect is required in the interests of the administration of justice. No greater challenge to the administration of justice and no greater perversion of the course of justice can be conceived than the murder of the opposing party to obtain an advantage in the litigation. It is conduct which no court, with its necessary concern for the administration of justice can tolerate. Such an order is both proportionate and necessary.90

Page 17 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

88 Ashworth v McKay Foods Ltd [1996] 1 All ER 705 89 Birkett v James [1978] AC 297

.

; [1977] 2 All ER 801

. See Chapter 11, 11.44 ff in relation to peremptory orders.

90 Raja v Van Hoogstraten [2006] EWHC 1315 (Ch) at [32].

14.38 The jurisdiction to take measures that express court disapproval of party conduct that the rules do not otherwise forbid, or even permit, is peculiar to procedural law. The court does not possess a comparable jurisdiction in relation to laws that confer substantive rights or impose burdens.91 The same may not be said of procedural rules because procedure is merely a means to an end. A distinction is therefore drawn between proper and improper means. In this sense, procedure does have a ‘spirit’. Since we know the proper purpose for which procedure may be employed, we can identify the purposes for which it should not be used.92 Identifying misuse is now assisted by the overriding objective which, in conjunction with its case management principles, establishes appropriate general standards of procedural rectitude.

Page 532

91 Norglen Ltd (in liq) v Reeds Rains Prudential Ltd [1999] 2 AC 1

(HL).

92 See Castanho v Brown & Root (UK) Ltd [1980] 3 All ER 72 ; Attorney General (UK) v Barker [2000] 2 FCR 1; [2000] EWHC 453 (Admin). See also the discussion at [33] and [34] in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

.

14.39 Given that power to deal with abuse of process is a residual jurisdiction, its use is predominantly appropriate in situations where its exercise is required in order to reach a just conclusion. There is no need to use this power where the court can find a satisfactory solution under the procedural rules or other legislation. If a claim may be dismissed on the grounds that it is time-barred, it would normally be pointless to describe the act of initiating such a claim as an abuse of process and to make orders to stay the proceeding.93 It would normally be preferable to invoke the specific sanction provided for the particular conduct in question than to have recourse to the general abuse of process doctrine. For instance, supporting an application by false evidence is clearly a misuse of procedure, but sometimes a sufficient response might be by means of a prosecution for perjury or committal for contempt, and there would be no need to invoke the power to stay for abuse of process.94 Equally, there may be nothing gained from staying a proceeding on the basis of an abuse of process because it discloses no reasonable cause of action, when it may be summarily dismissed or struck out under the court’s rules.95

93 Ronex Properties Ltd v John Laing [1983] QB 398

(EWCA Civ).

94 In Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (EWCA Civ), it was held that the tort of abuse of process, consisting in using court procedure for a purpose for which it was not intended, does not arise merely because a litigant adduces false evidence. 95 See Chapter 9.

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14.40 It is not suggested that extreme instances of procedural default cannot amount to abuse of process. On the contrary, as we shall presently see, a fraudulent claim may be stayed on just this ground. The point made here is merely that the abuse of process jurisdiction has no part to play in the ‘run of the mill’ case of failure to comply with rules or court orders. To treat such situations as abuse of process debases its currency. A claim brought after the limitation period should be dismissed because the defendant has a limitation defence. It should be treated as abuse of process where, for example, the claim is advanced for some ulterior motive, as where the plaintiff knows that the action is statute-barred but advances it nonetheless in order to harass the defendant. Even where no such motive exists and a claim was not subject to a time-bar, but the length of delay in bringing the procedure was such that it would prevent there being a fair trial, a stay for an abuse of process would be appropriate.96 In such a case, the statute of limitations would not provide the defendant with adequate protection against a stale claim.97

96 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 25; [2006] HCA 27

.

97 For an examination on the rationale for limitation periods, see Chapter 26, 26.7 ff.

Private and public dimensions of abuse of process

14.41 The abuse of process jurisdiction may be invoked to safeguard two different interests: the interests of individual litigants who need to be protected from unfair practices, and the interests of the public in the proper functioning of the administration of justice. It is because of the public dimension that the court has discretion to act on its own motion to protect itself against abuse.98 Wholesale disregard or misuse of

Page 533 rules and orders amounts to abuse of process both because it undermines the court’s authority and because it tends to deprive other parties of fair adjudication.99

98 Metropolitan Bank v Pooley (1885) 10 App Cas 210

(HL); Gillick v West Norfolk Health Authority [1986] AC 112

(HL). 99 Logicrose Ltd v Southend United Football Club [1988] 1 WLR 1256

.

14.42 The abuse of process jurisdiction does not give the court a free hand to interfere whenever it disapproves of the way a litigant conducts its case. The right of access to court combined with the principle of party autonomy underpin the right to conduct one’s case as one chooses within the rules. Abuse of process provides a ground for restraining a party from pursuing its case when its conduct of the case is such as to involve serious unfairness to another party or where it threatens the proper administration of justice. It is not enough that a party’s case is merely weak, though summary judgment may be appropriate in such a case. To stay a claim on the basis of an abuse of process, it must represent a wholly improper use of court proceedings as, for example, where it is vexatious, scurrilous or obviously ill-founded.100

Page 19 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 100 Dawkins v Prince Edward of Saxe Weimer (1876) 1 QBD 499 177 CLR 378 at 393

at 503

per Mellor J; Walton v Gardiner (1993)

per Mason CJ, Deane and Dawson JJ; Pickering v Centrelink [2008] FCA 561 at [27]

McKerracher J; Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9] Queensland Police Service [2015] QCA 22 at [15] per Jackson J.

per

per Reeves J; Markan v

Abuse resting on improper motive

14.43 It is an abuse of process to employ the court’s procedure for purposes other than the just determination of disputes. As Isaacs J put it, a case brought merely as a ‘stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate’ is one which would amount to an abuse of process.101 As his Honour went on to say, ‘there is no necessity to await the irrelevant determination’ of the merits of the plaintiff ’s claim. However, it is to be expected that a litigant may use litigation for an ultimate desire that transcends the pursuit of a cause of action in the proceedings. For example, a party suing in negligence for a personal injury may well be seeking some vindication from the litigation in addition to an award of damages. Accordingly, a distinction must be drawn here between the use of a court procedure for an improper purpose, and a litigant being motivated by some ultimate purpose outside the scope of the proceedings.102 Only in the former case will there be an abuse of process. In Williams v Spautz ,103 Mason CJ, Dawson, Toohey and McHugh JJ explained the distinction as follows: Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent’s conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot

Page 534   constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour. It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. So, in Dowling,Isaacs J pointed out that ‘if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process’. However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process.

101 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 102 Sino Iron Pty Ltd v Palmer [2014] QSC 259 at [29]

. per Jackson J; Re New Bounty Pty Ltd; Winpar Holdings Ltd v

Baron Corp Pty Ltd (2015) 107 ACSR 504; [2015] NSWSC 1060 at [197] 103 (1992) 174 CLR 509 at 526–7

(citations omitted).

per Sackville AJA.

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14.44 An improper intention is not a necessary precondition for establishing abuse of process, but it is a factor to be taken into account in arriving at the decision whether to allow a particular process.104 Improper motive and underhand tactics are always highly relevant factors. Thus, for example, it is an abuse of process to bring or maintain proceedings with no intention of bringing them to a conclusion.105 It is similarly an abuse of process to advance a claim, or take some other procedural step, in order to harass or harm an opponent, or in order to advance an improper or dishonest purpose.106

104 Johnson v Gore Wood & Co [2002] 2 AC 1

(HL); [2001] 1 All ER 481 at 499

105 Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181 106 Ashby v Commonwealth (No 4) [2012] FCA 1411 FCAFC 15

.

.

(reversed in Ashby v Slipper (2014) 219 FCR 322; [2014]

).

14.45 In Australian Beverage Distributors Pty Ltd v the Redrock Co Pty Ltd ,107 White J held that a winding-up application brought by a creditor against a debtor was not an abuse of process merely because one of the reasons for the application was to embroil the debtor in litigation effectively preventing it from contesting separate proceedings against another company associated with the creditor.108 Clearly, it would have been an abuse of process if this was the predominant purpose of the application.109 While White J found that this was a ‘sharp practice’ by the creditor, it was not an abuse of process given that the creditor had intended to pursue the winding-up application to its conclusion and to seek the remedy for the purpose for which it was intended. The creditor was allowed to take advantage of the collateral benefit it gained from the practical impact of the proceedings.110

107 (2007) 213 FLR 450; [2007] NSWSC 966

.

108 (2007) 213 FLR 450; [2007] NSWSC 966 at [42] 109 (2007) 213 FLR 450; [2007] NSWSC 966 at [42] 529

. , applying the test in Williams v Spautz (1992) 174 CLR 509 at

.

110 See also Re New Bounty Pty Ltd; Winpar Holdings Ltd v Baron Corp Pty Ltd (2015) 107 ACSR 504; [2015] NSWSC 1060

.

14.46 In contrast, the commencement of proceedings by a former university lecturer against his former colleagues and university officials alleging the commission of criminal offences was stayed as an abuse of process because the court found that they were brought for the predominant purpose of exerting pressure on the university to reinstate him or to gain a favourable settlement outcome in relation to a separate wrongful dismissal suit.111 Similarly, the commencement of a defamation suit for the

Page 21 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

Page 535 collateral purpose of investigating a royal commission, to which the defendant was appointed to assist as counsel, was also held to be an abuse of process.112

111 Williams v Spautz (1992) 174 CLR 509

.

112 Packer v Meagher [1984] 3 NSWLR 486 (NSWSC) at 499 per Hunt J.

14.47 As long as a litigant has an acceptable reason for seeking court adjudication, its claim will not be stayed or dismissed on grounds of abuse of process.113 It is not abuse of process to initiate a bona fide action while lacking the means to pay the defendant’s costs.114 But it is an entirely different matter if a plaintiff knowingly advances a groundless claim in order to harass the defendant.115

113 See Heaton v AXA Equity & Law plc [2001] Ch 173 (EWCiv CA), where the claimant was allowed to seek the determination of the court that he had been wronged by an alleged contract breaker, notwithstanding that he had suffered no loss. 114 Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418

(EWCA Civ); Abraham v Thompson [1997] 4 All ER

362 (EWCA Civ). But if the benefit which might flow from success of the plaintiff’s action is likely to be so disproportionately small by comparison with the enormous irrecoverable expenses of the defendants if they succeeded, it may be an abuse: see AB v John Wyeth and Brothers Ltd [1997] PIQR P385 (EWCA Civ). 115 Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2001] EWCA Civ 2097; Oldfield v Surrey Social Services [2001] All ER (D) 293 (Nov) (EWHC (Ch D)); Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9]

per Reeves J.

14.48 The overriding objective has significantly extended the scope of abuse of process by bringing into play the effect of process on court resources. As Lord Phillips MR explained in Jameel v Dow Jones and Co:116 abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.

The claim for defamation in that case was dismissed as an abuse of process because it would have involved the investment of disproportionate judge and jury time to an action which could achieve very little in terms of vindication for the plaintiff.

116 Jameel v Dow Jones and Co [2005] EWCA Civ 75 at [54]

. See also Adelson v Anderson [2011] EWHC 2497 (QB).

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14.49 The principles in Jameel have been considered in Australian courts.117 In Bleyer v Google Inc ,118 a defamation proceeding brought against Google regarding imputations contained in snippets that appeared in Google search engine results, was stayed as an abuse of process. Applying the overriding objective in s 56 of the Civil Procedure Act 2005 (NSW) and the proportionality of costs principle in s 60 of the same Act,119 McCallum J held that the resources that the court and the parties would likely expend in relation to the proceeding would be out of all proportion to the interest the plaintiff

Page 536 was trying to protect.120 In considering proportionality, the court took into account that it was highly unlikely that Google would be liable in relation to the claim,121 and that the alleged defamatory publication was viewed only by one person.

117 Cf Bristow v Adams [2012] NSWCA 166 at [41] 118 (2014) 88 NSWLR 670; [2014] NSWSC 897

per Basten JA. .

119 Section 60 of the Civil Procedure Act 2005 (NSW) provides that the practice of the procedure of the court should be implemented with the objective of resolving the issues between the parties in such a way that the costs to the parties is proportionate to the importance and complexity of the subject matter in dispute. 120 (2014) 88 NSWLR 670; [2014] NSWSC 897 at [97]

.

121 (2014) 88 NSWLR 670; [2014] NSWSC 897 at [85]

.

14.50 As to whether a lack of proportionality between the plaintiff’s interests and the interests of the court’s and other parties is a species of abuse of process remains unsettled law in Australia at present.122 Abuse of process should not be used as a substitute for the procedure for summary judgment.123 Nor should it be used to deny a plaintiff its rights merely because the amount of resources that may be consumed by by allowing the claim to proceed will be significant. In such a case, a more appropriate approach would be for the proceedings to be managed so that they may not be out of proportion to the size of the claim. Where this is not possible it may then be appropriate to stay the proceedings for abuse of process.

122 See YZ v Amazon (No 7) [2016] NSWSC 637 at [57]

per McCallum J, in which her Honour considers approaches

taken by courts following the decision in Bleyer. See also Lazarus v Azize [2015] ACTSC 344 123 YZ v Amazon (No 7) [2016] NSWSC 637 at [61]

.

per McCallum J.

14.51 Applications for a stay on grounds of abuse of process are determined on the balance of probabilities (the civil standard of proof). However, an allegation of impropriety or misconduct may have consequences beyond the instant proceeding, including in relation to the reputation of the parties or individuals involved.124 For example, if it is alleged that a witness connected with the plaintiff has lied in evidence, that may open that witness to prosecution for perjury. It may also affect the credibility of any evidence given by that witness in future proceedings.Accordingly,

Page 23 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings where a party is alleging that the abuse of process arises out of some impropriety or misconduct, the court must have regard to the gravity of the matters being alleged in making findings of fact.125 The graver the allegations and their potential consequences, the greater the degree of satisfaction that will be needed by the court for it to conclude that those allegations have been made out.126

124 Commonwealth v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 at [130]

.

125 Evidence Act 1995 (Cth) s 140(2)(c) (and its inter-jurisdictional equivalents); Briginshaw v Briginshaw (1938) 60 CLR 336 at 362

per Dixon J; LTH Pty Ltd v Tong [2013] VSCA 268 at [31]

126 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [69]

per Tate JA.

per Mansfield and Gilmour JJ.

14.52 In Ashby v Slipper,127 the respondent applied for a stay or dismissal of a Federal Court proceeding on the basis of an abuse of process. It was alleged that some of the allegations made in the statement of claim were made for the collateral purpose of vilifying one of the respondents (formerly a Speaker of the House of Representatives) and to expose him to opprobrium and scandal, and to destroy his reputation and political career. Some of the allegations in question had been dropped subsequent to the commencement of proceedings and were subject to considerable media attention. The primary judge dismissed the proceedings as an abuse of process.128 In reaching this view, the primary judge found that the applicant’s solicitor breached his professional obligation not to misuse his privilege to make allegations in court documents. The dismissal was overturned on appeal. Mansfield and Gilmour JJ held that the evidence

Page 537 did not rise to a level that the primary judge could be satisfied that the solicitor engaged in any of the conduct found, having regard to the serious nature of the allegations.129 The majority also held that the solicitor was reasonably justified in commencing proceedings in circumstances where the evidence was weak but the case was arguable.130

127 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 128 Ashby v Commonwealth (No 4) [2012] FCA 1411

.

.

129 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [151],[156],[206] 130 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [177] [2003] 2 Qd R 683; [2003] QCA 157 at [24] NSWSC 526 at [60]

.

. See also Steindl Nominees Pty Ltd v Laghaifar

; European Hire Cars Pty Ltd v Beilby Poulden Costello Lawyers [2009]

.

Conduct of practitioners and abuse of process

14.53 The court has a general duty to supervise the conduct of lawyers,131 each of whom are officers of the court and owe a paramount duty to the court.132 Lawyers are afforded a privilege in relation to the conduct of proceedings which includes the freedom of speech in an open court.133 A misuse of the privilege may bring the administration of justice into disrepute. In Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd ,134 the Full Court of the Federal Court held:

Page 24 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

It is of the utmost importance for the administration of justice in this Court that legal practitioners acting in proceedings before the Court are honest, candid with the Court and neither obstruct the administration of justice by the Court,nor abuse the Court’s process. It can hardly be accepted that the Court must stand idly by when practitioners appearing before it, or acting in matters in the Court, act with impropriety.

131 Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [333]

per Siopis J.

132 Clyne v New South Wales Bar Association (1960) 104 CLR 186

; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223

CLR 1; [2005] HCA 12 at [26]

per Gleeson CJ, Gummow, Hayne and Heydon JJ.

133 Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 Lopes LJ, cited with approval in Clyne v New South Wales Bar Association (1960) 104 CLR 186

at 451

per

.

134 (1993) 45 FCR 224 (FCAFC) at 233–4.

14.54 The court, of course, has jurisdiction to deal with the conduct of lawyers, including by means of imposing an adverse costs orders and making adverse findings as to the conduct of a lawyer.135 This is in addition to the jurisdiction of the court to discipline its lawyers. These powers may go some way to deterring lawyers from conduct which would bring the administration of justice into disrepute; however, they may not resolve the injustice left in proceedings as a result of a lawyer’s conduct. Accordingly, in Ashby v Slipper ,136 Siopis J held that it was open for a judge to find an abuse of process on the basis of the improprieties of a lawyer.137

135 R v Byrne; Re Swanwick (1882) 1 QLJR 66 at 67 per Lilley CJ, cited in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224(FCAFC) at 233. See also Libke v R (2007) 230 CLR 559; [2007] HCA 30

, where it was held that the conduct of a lawyer in a criminal proceeding may cause a miscarriage of justice.

136 (2014) 219 FCR 322; [2014] FCAFC 15

.

137 (2014) 219 FCR 322; [2014] FCAFC 15 at [335]

.

14.55 In determining whether a procedure has been employed for an improper purpose, regard may be had to the purpose of a party’s lawyer. This will be relevant

Page 538 where the particular procedure in question stems from a recommendation of a lawyer in response to the instructions or desires expressed by the lawyer’s client.138

Page 25 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 138 Campaign Master (UK) Pty Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76; [2010]FCA 398 at [51] per Yates J. See also Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773

.

Founding abuse on oppressive conduct and disruptive consequences

14.56 Proceedings may amount to an abuse of process if they have a tendency to disrupt the proper administration of civil justice.139 For instance, trying to litigate an issue that has already been decided or should have been litigated in earlier proceedings may amount to an abuse of process.140 It would also be an abuse of process for a party to acquiesce in the conduct of a test case affecting that party only then to pursue another claim in the face of the decision of the test case.141 For such subsequent proceedings to be allowed would obstruct the court’s attempt to determine a common issue for the benefit of all litigants with an interest in the outcome. Similarly, it is an abuse of process to advance factual allegations which are inconsistent with allegations raised in previous proceedings,142 or to make repeated applications relating to the same issue without a material change of the circumstances.143 Such conduct wastes court resources and imposes an unnecessary burden on the opponent to no justifiable end. The same may be said of a party that unreasonably fails to apply for a consolidation of joint claims in order to avoid several liability for costs,144 or of a party that floods the court with numerous groundless applications.145

139 Hamilton v Oades (1989) 166 CLR 486 at 502

.

140 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 University (2009) 239 CLR 175; [2009] HCA 27 at [30] 141 Ashmore v British Coal Corp [1990] 2 All ER 981 288 (VSC).

; Aon Risk Services Australia Ltd v Australian National per French CJ.

(EWCA Civ); Equus Financial Services v Jackson (1994) ASC 56-

142 Bradford & Bingley Building Society v Seddon [1999] 4 All ER 217 liq) v Beck (2009) 175 FCR 532 at[33]–[34] [2012] Qd R 482 at [40]–[49]

(EWCA Civ); Ann Street Mezzanine Pty Ltd (in

per Finkelstein J; Thomas v Balanced Securities Ltd [2011] QCA 258;

per White JA.

143 Habib Bank AG Zurich v Mindi Investment Ltd (1987) 131 Sol Jo1455, The Times, 9 October 1987 (EWCA Civ); Halifax plc v Chandler [2001] EWCA Civ 1750 Pty Ltd [2014] NSWSC 996 at [42]

; Australian Mortgage & Finance Company Pty Ltd v Rome Euro Windows

per Black J.

144 Bairstow v Queen’s Moat Houses plc [2001] CP Rep 59 (EWHC QBD). 145 Tejendrasingh v Metsons [1997] EMLR 597 (EWCA Civ); Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013] SASCFC 124 at [114]

at Blue J.

14.57 A multiplicity of proceedings in relation to the same matter may amount to an abuse of process. A court may stay proceedings where the same issues in the proceedings are being litigated in another court, whether within Australia or overseas.146 The existence of two proceedings commenced by a plaintiff in the same court in respect of the same matter is considered prima facie vexatious.147 The plaintiff, in those circumstances, will be required to make an election between the proceedings or

Page 539 the court may stay that proceeding which it considers to be inappropriate.148 In Henry v Henry ,149 the majority of the High Court held:

Page 26 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive in the Voth sense.150

146 McHenry v Lewis (1882) 22 Ch 397 at 400 per Jessel MR; Williams v Hunt [1905] 1 KB 512

at 514

Collins MR; Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281

per Dixon J;

Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 at [34] Campbell JA. 147 Reynolds v Reynolds [1977] 2 NSWLR 295 at 306

per Waddell J.

148 Reynolds v Reynolds [1977] 2 NSWLR 295 at 306

per Waddell J.

149 (1996) 185 CLR 571 at 591

per per

per Dawson, Gaudron, McHugh and Gummow JJ.

150 See 14.69 ff.

14.58 In Burbank Australia Pty Ltd v Luzinat ,151 the court advanced two reasons justifying a stay of proceedings. First, there is a risk that the two sets of proceedings may result in conflicting decisions. Secondly, there is a recognition that the defendant will already be ‘deeply involved’ in one set of proceedings such that the commencement of a subsequent proceeding would amount to an undue harassment. In addition to these reasons, the multiplicity of proceedings is contrary to the overriding objective. In circumstances where courts have limited resources, it would cause an undue waste of resources for a court to be required to adjudicate the same matter twice.

151 [2000] VSC 128 at [28]–[30]

.

14.59 An abuse of process need not only be founded on oppressive conduct of the plaintiff. Batistatos v Roads and Traffic Authority of New South Wales 152 provides a useful illustration. The plaintiff sustained severe physical and mental disabilities as a result of a motor vehicle incident. Some 40 years later, he brought proceedings against the local road authorities in negligence. Given his disability, the actions were not subject to limitation periods. The proceedings were indefinitely stayed for abuse of process. The High Court held that attention in this case must be directed to the burdensome effect that the proceedings would have on the defendants as a result of the significant lapse of time.153 A fair trial in those circumstances would be impossible. Unlike cases where an abuse of process is founded on an improper motive, there was no requirement for the defendants here to establish that there was some moral delinquency or deliberate misconduct by the plaintiff in the timing of the action.154

152 (2006) 226 CLR 25; [2006] HCA 27

.

Page 27 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 153 (2006) 226 CLR 25; [2006] HCA 27 at [69]

per Gleeson CJ, Gummow, Hayne and Crennan JJ.

154 (2006) 226 CLR 25; [2006] HCA 27 at [70]

per Gleeson CJ, Gummow, Hayne and Crennan JJ, and [138] per Kirby

J; Oceanic Sun Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247

per Deane J.

Torts of collateral abuse of process and malicious prosecution

14.60 In addition to procedural measures for dealing with abuse of process by way of a stay, there is substantive remedy in the form of the tort for abuse of process.155 The

Page 540 tort is commonly called an action for collateral abuse of process to distinguish it from the court’s inherent power to act upon abuses of processes.156 The tort consists of the employment of a legal process with a predominant objective other than that for which the process was designed, with the result that another person (referred to here as the ‘claimant’) has suffered damage.157 It is not necessary to show that the proceedings in question terminated in favour of the claimant. Nor does it need to be shown that the action was groundless. The claimant needs to establish that the predominant purpose of the party accused of the tort in using the legal process was other than that for which it was designed and that it suffered damage as a result.158

155 The tort was enunciated in Grainger v Hill (1838) 4 Bing NC 212

. See also Varawa v Smith (1911) 13 CLR 35 at 91

. The American Restatement (Torts)defines the tort thus: ‘where one uses a legal process whether criminal or civil against another primarily to accomplish a purpose for which it is not designed’. 156 R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, [25.22]. 157 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1989] 3 All ER 14

(EWCA Civ).

158 Hanrahan v Ainsworth (1985) 1 NSWLR 370 (NSWSC) at 376 per Hunt J; Grimwade v Victoria (1997) A Crim R 526 (VSC) at 536 per Harper J; Leerdam v Noori [2009] NSWCA 90.

14.61 An example of the tort is provided by Grainger v Hill,159 where the abusive process consisted of swearing an affidavit of debt, obtaining a writ of capias, sending the sheriff’s officers with the writ to the claimant and having him arrested. The defendants were found to have used processes designed for the recovery of debt in order to extract from the claimant a ship’s register, to which the defendants had no right. Giving false evidence is not sufficient by itself to found a tort of abuse of process. The proper response to false evidence is a prosecution for perjury and a costs order to compensate the affected parties for wasted expenditure. For there to be an action for abuse of process there must be an additional element of intentional misuse of process.160

159 Grainger v Hill (1838) 4 Bing NC 212

.

160 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 (1990) 22 NSWLR 73 at 118

14.62

per Clarke JA.

(EWCA Civ); Hanrahan v Ainsworth

Page 28 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings A party need not wait until the conclusion of proceedings in order to bring an action in tort for the abuse of process; the action may be brought pending the determination of those proceedings.161 However, the utility of the tort is limited. Once the court has ruled that an abuse of process has taken place, the affected party will normally be compensated in costs, thus leaving little extra damage to be claimed in tort.162 Further, the bringing of an action tort by the claimant does not serve to terminate the proceedings; this may only be achieved effectively by a stay, or a strike-out or dismissal.163

161 Williams v Spautz (1992) 174 CLR 509 at 519

per Mason CJ, Dawson, Toohey and McHugh JJ.

162 Hanrahan v Ainsworth (1985) 1 NSWLR 370 (NSWSC) at 375 per Hunt J. The court is further reluctant to allow the reagitation of the issue of costs which have been determined in the principal proceedings. 163 Williams v Spautz (1992) 174 CLR 509 at 520

per Mason CJ, Dawson, Toohey and McHugh JJ.

14.63 In addition to the tort of collateral abuse of process there is a tort of malicious prosecution, concerning the commencement of proceedings without reasonable and probable cause against another person which terminate in favour of the other person and thereby resulting in damage to that person.164 Such damage includes the harm to the reputation of the affected party from the institution of a prosecution. It was thought

Page 541 originally that the tort only applied in relation to criminal proceedings, and not any civil proceedings.165 It has been suggested that the reason for excluding civil proceedings from the tort of malicious prosecution is that a judgment in favour of the defendant in civil proceedings would restore any harm to reputation suffered by the defendant as a result of the proceeding.166 However, in Little v Law Institute of Victoria (No 3) ,167 which concerned civil proceedings for disciplinary action against a lawyer, the Appeal Division of the Supreme Court of Victoria held that quick and wide dissemination of information about litigation (particularly in the modern era) may also injure the fame of a defendant.168 Such a development is unsurprising given that civil proceedings are used increasingly as a means to try breaches of regulatory laws, such as cartel and other anticompetitive conduct,169 infringement of employees’ rights under the Fair Work Act 2009 (Cth)170 and breaches of the Corporations Act 2001 (Cth).171 However, even if the tort were available in respect of civil proceedings, a claim for malicious prosecution may only be brought following the determination of the principal proceedings.172 Accordingly, it would not provide a defendant immediate relief from an abuse of process.

164 R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, [25.2]; Herniman v Smith [1938] AC 305

(HL); Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 547

Starke J; Hanrahan v Ainsworth (1990) 22 NSWLR 73

per

.

165 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391

(EWCA Civ); Butler v Simmonds

Crowley & Galvin [1999] QCA 475; [2000] 2 Qd R 252 : although there are authorities which have applied the tort in respect of bankruptcy petitions,the court held that these are likely to have been as a result of those authorities applying principles from the tort of collateral abuse: at 258. 166 Wiffen v Bailey [1915] 1 KB 600 167 [1990] VR 257

at 607

per Buckley LJ.

.

168 [1990] VR 257 at 267

per Kaye and Beach JJ.

169 Competition and Consumer Act 2010 (Cth) ss 76 and 77. 170 Fair Work Act 2009 (Cth) s 539.

Page 29 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 171 Corporations Act 2001 (Cth) s 1317L. 172 Williams v Spautz (1992) 174 CLR 509 at 520

per Mason CJ, Dawson, Toohey and McHugh JJ.

Abuse of process by fraudulent plaintiffs

14.64 The power to stay proceedings on the grounds of abuse of process can be applied to cases involving fraudulent claims. A series of recent English cases have demonstrated the application of the principles of abuse of process where a plaintiff has advanced a false claim to defraud the defendant whose defence is being conducted by an insurer covering the costs of the proceedings and providing an indemnity in respect of any damages.173 In these cases, the plaintiffs made false allegations in their statements of claim and provided false evidence (whether in writing or orally). In these cases, the plaintiffs may have had a genuine claim, but the claim was embellished and exaggerated with false allegations. An obvious example is a situation in which a plaintiff sues in negligence for personal injury (the genuine claim). While some loss or injury was suffered, the plaintiff knowingly alleges that he or she has suffered injury or loss which was not in fact sustained (the fraudulent claim).

173 A Zuckerman, ‘Must a fraudulent litigant be allowed to think: if the fraud is successful, I will gain much; if it is not, I will still recover my legitimate claim’ (2011) 30 Civil Justice Quarterly 1 at 2.

14.65 Faced with a fraudulent claim, a court is left with two choices: to proceed with the determination of the matter in the ordinary course and establish the true nature of the loss or injury, or, alternatively, to thwart the defendant’s efforts to pervert the

Page 542 course of justice by way of a stay of proceedings, dismissal or strike-out. In the latter case, the court would stay, strike out or dismiss the claim in its entirety for abuse of process — in which case the plaintiff would forfeit its genuine claim.

14.66 Some English decisions, such as Arrow Nominees Inc v Blackledge,174 have favoured the forfeiture approach. In that case, Chadwich LJ held: 175 A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.

This approach is not unique to civil procedure. Under the maxim ex turpi causa non oritur actio, which finds expression in other areas of substantive law, courts may deny a party its entitlement under the law due to the conduct of that party. For example, an otherwise valid claim in contract may be dismissed for illegality.176 Similarly, in equity, relief will be denied to a litigant that does not approach the court with clean hands. A rule which has developed in insurance law is that where part of a claim brought under an insurance policy is fraudulent, the insured could not recover in respect of any part of the claim, not even those parts which were not fraudulent. As Lord Hobhouse explained in Manifest Shipping Co Ltd v Uni-Polaris Co Ltd, The Star Sea,177 this was to prevent the fraudulent claimant from being allowed to think: ‘if the fraud is successful, then I will gain; if it is unsuccessful, I will lose nothing’. In all these cases, the plaintiff has an underlying legitimate cause of action against the defendant and

Page 30 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings is denied relief, not for lack of a case on the merits, but due to public policy considerations. Common to the insurance rule, the ex turpi principle and the clean hands doctrine is a moral conception about the proper use of legal process and an appreciation that close court involvement with dishonest causes or litigants can bring the court into disrepute.

174 Arrow Nominees Inc v Blackledge [2000] All ER (D) 854 Spencer [2007] QSC 276

(EWCA Civ), applied in Mango Boulevard Pty Ltd v

.

175 Arrow Nominees Inc v Blackledge [2000] All ER (D) 854 (EWCA Civ) at [54]. 176 Birkett v Acorn Business Machines Ltd [1999] 2 All ER (Comm) 429. 177 Manifest Shipping Co Ltd v Uni-Polaris Co Ltd, The Star Sea [2001] 1 All ER 743; [2001]UKHL 1 at [62]

.

14.67 Other decisions have favoured the view that the court should not deny the plaintiff its right to a full hearing on the merits provided that the court is able to discriminate between those allegations that are true and those that are false.178 The English position has been resolved in favour of the forfeiture approach in the United Kingdom Supreme Court’s decision of Fairclough Homes Ltd v Summers .179 In that case, the plaintiff sued his employer in negligence in respect of a workplace injury. The plaintiff claimed losses exceeding £800,000 on the basis he was left permanently unable to stand for more than 10 to 15 minutes at a time.It was revealed through evidence obtained by the employer’s insurer that the plaintiff had grossly and dishonestly exaggerated the impact of his injuries, and that his actual loss was in the order of £88,000. The Supreme Court ruled that a court did have the power to strike out a genuine claim for abuse of process that was coupled with a fraudulent claim

Page 543 where the court was satisfied that the party’s abuse meant that it has forfeited its claim, though it declined to do so in this case.180

178 Ul-Haq v Shah [2010] 1 All ER 73; [2009] EWCA Civ 542 179 [2012] 1 WLR 2004

; [2012] UKSC 26

180 [2012] 1 WLR 2004

; [2012] UKSC 26 at [41],[43]

.

. per Lord Clarke SCJ.

14.68 In Australia, courts have used the inherent jurisdiction in cases where a party has acted fraudulently in the course of litigation by, for example, destroying documents to prevent those documents from being discovered.181 In such situations, the court has responded by striking out the pleading of the party that has engaged in that conduct.182 In principle, there is no reason why a court in Australia could not stay or dismiss proceedings for abuse of process where those proceedings involve a genuine claim coupled with a fraudulent claim. As the overriding objective makes plain,doing justice under the modern rules of civil procedure requires more than a process which produces the correct decision on the merits. Doing justice in accordance with the overriding objective is a bi-directional concept that takes account of the interests and opportunities of both parties, not just one of them. As Lord Bingham said, ‘the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties’.183 To allow a plaintiff to persist with a claim in circumstances where it was coupled with fraud would, in the words of Lord Diplock, bring the administration of

Page 31 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings justice into disrepute among right-thinking people.184 For a defendant responding to such a claim, the proceedings would be an instrument of oppression.

181 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 1066

; Moody Kiddell and Partners Pty Ltd v Arkell [2013] FCA

.

182 See Chapter 15, 15.74 in relation to default in compliance with discovery obligations. 183 O’Brien v Chief Constable of South Wales Police [2005] 2 All ER 931; [2005] UKHL 26 at [6] Leisure plc [1999] 4 All ER 934 at 940 WLR 954

at [25]

. See Biguzzi v Rank

; see also Jones v University of Warwick [2003]EWCA Civ 141; [2003] 1

per Lord Woolf CJ.

184 Hunter v Chief Constable of West Midlands Police [1981] 3 All ER 727 at 729

.

Forum non conveniens

14.69 As discussed in Chapter 5, a defendant may seek a stay of proceedings on the basis that the court in which the proceedings have been brought is ‘clearly an inconvenient forum’ for the matter to be determined.185 The stay is not ordered for want of jurisdiction by the court to hear the matter. It is assumed that the court has jurisdiction to hear the matter and the power to grant relief that has been sought by the plaintiff. Rather, the stay is granted on the basis that determining the proceedings in that court will be ‘productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment’.186 The

Page 544 following statement of principle was set out by the majority of the High Court in Voth v Manildra Flour Mills Pty Ltd :187 First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or ‘extreme caution’.

185 Oceanic Sun Special Shipping Co Inc v Fay (1988) 165 CLR 197 CLR 538 at 554

; Voth v Manildra Flour Mills Pty Ltd (1990) 171

per Mason CJ, Deane, Dawson and Gaudron JJ; Centrebet Pty Ltd v Baasland [2013] NTSC 59

. See Chapter 5, 5.155 on forum non conveniens. Australia is not yet a party to the Hague Choice of Court Convention (Convention of 30 June 2005 on Choice of Court Agreements). Under that Convention, the courts of contracting countries will stay proceedings where the parties have agreed that another jurisdiction (not in the same country) will be the exclusive jurisdiction. 186 Regie Nationale Renault v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [78] Gummow and Hayne JJ. 187 (1990) 171 CLR 538 at 554

per Mason CJ, Deane, Dawson and Gaudron JJ.

per Gleeson CJ, Gaudron, McHugh,

Page 32 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings

14.70 The emphasis in Australian law is on whether the conduct of the matter in Australia would be oppressive or vexatious. It may well be that no other court is able to hear the matter, although this would be a factor the court would take into account in determining whether or not the court is a clearly inappropriate forum.188 In considering whether another court is able to hear the matter, consideration should also be given as to whether it can dispose of all of the controversies between the parties comprehensively.189 A stay will not be granted merely because the law of another jurisdiction is the lex causae (that is, the domestic court will be required to apply foreign law to adjudicate the matter).190 A court is likely to stay proceedings where the parties are subject to an agreement to submit the dispute to another court on an exclusive basis.191

188 Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682; [2008] NSWCA 211 at [18] per Spigelman CJ, and at [141] per Campbell JA. Spigelman CJ took the view that this factor should be given significant weight. 189 Henry v Henry (1996) 185 CLR 571 at 592

per Dawson, Gaudron, McHugh and Gummow JJ.

190 Regie Nationale Renault v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [81] Gummow and Hayne JJ.

per Gleeson CJ, Gaudron, McHugh,

191 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association Ltd (1997) 41 NSWLR 559 at 569

per Giles CJ Com Div.

14.71 The court may consider a variety of factors in determining whether proceedings should be stayed on the basis of forum non conveniens.192 Among those factors are what has been termed ‘connecting factors’, namely factors which demonstrate a ‘real and substantial connection’ to another forum.193 If a matter can be heard in another forum with ‘substantially less inconvenience or expense’ because, for instance, the majority of witnesses are located in that forum, the court is more likely to grant a stay.194 Other connecting factors include whether any of the parties are located in the other forum, and whether the law of the other forum is the applicable law to adjudicate the matter.195

Page 545

192 Henry v Henry (1996) 185 CLR 571 at 593

per Dawson, Gaudron, McHugh and Gummow JJ.

193 The Abdin Daver [1984] AC 398 at 415 Ltd [1987] AC 460 (HL) at 477–8 per Lord Goff.

per Lord Keith of Kinkel; Spiliada Maritime Corporation v Cansulex

194 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

(HL) at 477–8 per Lord Goff.

195 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564–5

per Mason CJ, Deane, Dawson and Gaudron JJ.

14.72 Proceedings are liable to be stayed on the basis of oppression if they would deny the defendant a legitimate personal or juridical advantage that would be available to it in another forum.196 In considering this issue, courts

Page 33 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings have traditionally distinguished between the advantages provided by procedural (or adjectival) laws and those provided by substantive laws.197 It is the latter which is recognised to confer an advantage for the purpose of determining whether an Australian court would be a clearly inconvenient forum. The assessment is to be made by reference to what an Australian court would consider to be substantive law, regardless of how it is characterised in the other forum.198 Garsec v His Majesty the Sultan of Brunei 199 provides a useful illustration of this principle. In that case, the plaintiff sued in the Supreme Court of New South Wales in contract and tort in relation to the alleged sale of a rare and valuable manuscript of the Holy Koran. Under the law of Brunei, the defendants would be entitled to a constitutional immunity from suit. The Court of Appeal dismissed an appeal against the Supreme Court’s decision to grant a permanent stay. The Court of Appeal held that the immunity was, for the purpose of Australian law, a substantive law rather than a procedural law.200 If proceedings were to continue in New South Wales, the defendant would be denied the advantage of relying upon the immunity.

196 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 197 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 40

(HL) at 482–4 per Lord Goff. per Brennan, Dawson, Toohey and McHugh JJ.

198 Garsec v His Majesty the Sultan of Brunei (2008) 250 ALR 682; [2008] NSWCA 211 at [153] 199 (2008) 250 ALR 682; [2008] NSWCA 211

per Campbell JA.

.

200 (2008) 250 ALR 682; [2008] NSWCA 211 at [153]

per Campbell JA.

Insolvency moratoriums

14.73 Proceedings against a company will be automatically stayed if the company is in administration201 or is in the process of being wound up.202 In relation to companies in administration, an exception exists where the proceedings are commenced or are continued with the written consent of the administrator. Where a plaintiff wishes to proceed against a company in administration or in liquidation, it will need leave of the court.

201 Corporations Act 2001 (Cth) s 440D(1). 202 Corporations Act 2001 (Cth) s 500(2).

14.74 The underlying rationale for staying proceedings against companies in administration is to give the administrator space to attend to the company’s affairs without the distraction and expense of litigation.203 While earlier authorities tended to favour the approach of a court starting from an assumption that leave should not be granted,204 Hammerschlag J in Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd 205 took the view that this assumption was an ‘unwarranted confinement’ of the court’s discretion. Instead, the decision should be based on the circumstances of each case,

Page 546 such as whether or not the proceedings would be an unreasonable distraction to the administrator,206 the extent of prejudice that would be suffered by the plaintiff if leave was not granted,207 and the nature of the relief being sought.208

Page 34 of 34 Chapter 14 Discontinuance, Withdrawal and Stay of Proceedings 203 Re Capital General Corp Ltd (2001) 19 ACLC 848; [2001] VSC 570 at [13] 204 Foxcraft v Ink Group Pty Ltd (1994) 15 ACSR 203 130

per Warren J.

; Auburn Council v Austin Australia Pty Ltd(in liq) [2007] NSWSC

.

205 [2011] NSW 1305 at [36]. 206 Hall v Mercury Information Technology (South Australia) Pty Ltd [2002] FCA 272 207 Wallabah Pty Ltd v Navillo Pty Ltd (1997) 23 ACSR 444

.

.

208 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1305 constructive trust made in an arbitral award.

, where the relief included a declaration of a

Stay distinguished from adjournment

14.75 Although the consequences of an adjournment may sometimes be similar to the consequences of a stay, there is a difference between the two concepts. A stay brings the progress of the litigation to a halt, which may well be permanent. By contrast,an adjournment presupposes that the proceedings will continue. Proceedings that are stayed, for instance, because they amount to abuse of process, or as a result of a compromise, are thereby meant to be concluded, though the court retains the power to allow their revival. Where a stay has been imposed, an application must be made to court to lift the stay and allow the proceedings to continue. An adjournment presupposes a resumption leading to a conclusion of the proceedings, whether by court decision,discontinuance, settlement or, indeed, by a stay of proceedings. For instance, a trial that is adjourned is meant to resume. An adjournment may therefore be said to affect only the timetable of the proceedings. Where, for instance, a personal injury claim has to await the emergence of a diagnosis, it is appropriate to speak of an adjournment or an extension of time rather than a stay. Where an adjournment has been protracted, the court may decide that there is no longer justification to continue the case, but until such time the proceedings are expected to resume.

14.76 There are other situations where proceedings in one action may be stayed pending a decision in another case. A claim to recover indemnity from the defendant in respect of liability for damages to a third party, may be stayed until the third party has been awarded damages against the claimant.209 Where the question in appeal A is similar to an issue raised in appeal B, it may be desirable to postpone the hearing of the former until the latter has been decided.210 It is appropriate to speak here of adjourning or postponing the hearing of appeal A, because the appeal court cannot leave an appeal indefinitely suspended but must eventually resolve it one way or another.

209 Woods v Duncan [1946] AC 401

.

210 See for instance Re Yates’ Settlement Trusts [1954] 1 All ER 619

End of Document

.

Chapter 15 Discovery, Interrogation and Inspection Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 15 — Discovery, Interrogation and Inspection

Chapter 15 Discovery, Interrogation and Inspection Page 547 [Current to May 2018]

Introduction and context

15.1 One of the more distinctive features of the common law system of litigation has been the discovery process, whereby litigants are able to see each other’s documents in advance of a trial.1 The modern history of the law of civil procedure is in a large measure the history of the evolution of discovery from its Chancery origins.2 Although the modern rules of civil procedure have introduced a few notable changes to discovery, the objective remains the same as before: to afford litigants access to relevant documentary materials in the possession of their opponents or in the hands of non-parties.

1

W D Brazil, ‘The Adversary Character of Civil Discovery’ (1978) 31 Vanderbilt Law Review 1295; M Frankel, ‘The Search for Truth Continued: More Disclosure, Less Privilege’ (1982) 54 University of Colorado Law Review 51; P Matthews and H Malek, Disclosure, 5th ed, Sweet & Maxwell, London, 2016.

2

See F James, ‘Discovery’ (1929) 38 Yale Law Journal 846; G Ragland, Discovery Before Trial, Callaghan & Co, Chicago, 1932, pp 13–17; J H Wigmore, Evidence (Chadbourn rev edn 1976), para 1845; R W Millar, ‘The Mechanism of Fact Discovery: A Study of Comparative Civil Procedure IV’ (1937) 32 Illinois Law Review 424.

15.2 Access to relevant documentary material that is in the hands of other parties to the dispute promotes equality of arms and contributes to the ascertainment of truth. Mutual disclosure of information helps reduce information inequality and iron out resource inequality. Litigant access to all relevant materials in the hands of opponents or others is necessary in order to ensure that the court is in possession of all pertinent evidence and that it is able to determine the truth.3 This is especially critical in the adversarial system, which relies upon the parties to present the evidence relevant to the proceedings. An information imbalance may hinder the ability of the court to ascertain the truth. For instance, where one party is the sole custodian of a document that harms its case, it is naturally in the interest of that party to withhold that document from its opponent and the court. However, the withholding of the document deprives the court of having access to information that may be critical to the fair determination of the proceedings. Similarly, if a party is the sole custodian of a document that would

Page 548 harm its opponent’s case, the custodian may be tempted to ambush the opponent at trial, depriving the opponent of a reasonable opportunity to consider and respond to the information contained in the document.

Page 2 of 126 Chapter 15 Discovery, Interrogation and Inspection

3

For the importance that common law civil procedure attaches to evidence, see the discussion in Chapter 3, 3.93 ff.

15.3 Discovery attempts to remedy the information imbalance between parties to litigation by promoting what has been termed as the ‘cards on the table approach’.4 This approach seeks to ensure that parties to a dispute are able to find out as much as possible about each other’s case as early as possible, so that no party is taken by surprise and so that the court is apprised well before the trial of the nature and extent of the evidence. While, on its face, it may appear that discovery is inconsistent with the adversarial approach, Lord Donaldson MR noted that adversarial litigation was not intended to be a ‘war or even a game’. Rather,the civil justice process is ‘designed to do real justice between parties’.5

4

Davies v Eli Lilly [1987] 1 WLR 428 at 432 per Lord Donaldson MR; A Zuckerman, Zuckerman on Civil Procedure: Principles of Practice, 2nd ed, Sweet & Maxwell, London, 2006, [15.3].

5

Davies v Eli Lilly [1987] 1 WLR 428

at 431

.

15.4 Pre-trial discovery has other collateral advantages. Key among those advantages is that it increases the prospects of settlement by enabling litigants to make an early and well-informed assessment of their respective chances of success in the litigation.6 This is because the more complete the information on which each party makes its assessment, the more likely it is that the parties will come to a similar conclusion, and the more likely it is that they will settle without litigation.

6

Sir Jack Jacob, The Fabric of English Civil Justice, Steven & Sons, London, 1987, p 94.

15.5 While the advantages of discovery have been plain for a long time, what had been insufficiently appreciated or articulated before the Woolf Reports on Access to Justice was that there could be too much discovery as well as too little discovery.Prior to the overriding objective under the modern rules of civil procedure, discovery could be very laborious and very costly without producing worthwhile results. Parties were expected to discover to each other all the documents in their possession or control that related to any matter in question between them. Even a tenuous relationship between documents and issues would be sufficient to justify a discovery order because the definition of relevance for the purpose of disclosure was very wide.Discovery was demanded not only of documents with a direct bearing on the issues, but also of every document that: … it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party [seeking discovery] either to advance his own case or to damage the case of his adversary …a document can properly be said to contain information which may enable the party [seeking discovery] 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 a train of inquiry, which may have either of these two consequences.7

Page 3 of 126 Chapter 15 Discovery, Interrogation and Inspection

7

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 LJ.

at 63

per Brett

15.6 This was known as the Peruvian Guano test, after the case in which it was stated.8 Under this test, discovery extended to documents with only a tangential connection to

Page 549 the issues in dispute. The test has been abandoned in most jurisdictions but remains in the Australian Capital Territory and Western Australia,subject to directions by the court. It stands to reason that the broader the definition of relevance for the purpose of discovery, the larger the range of documents that come within its ambit. It is also clear that the further we move away from documents with a direct connection to the issues in proceedings, the less likely it is that the documents will make a substantial contribution to the resolution of those issues. Where the documentary pool is large, a point will come in the discovery process beyond which the benefits of any extra discovery will be outweighed by the disadvantages of additional costs and an increased risk of confusion. The proliferation of electronically stored information, which is discussed further below, has intensified this issue.9

8

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

9

Matthews v SPI Electricity Pty Ltd [2011] VSC 401 at [17]

.

per Zammit AsJ.

15.7 In the Access to Justice Reports, Lord Woolf singled out discovery as a major contributor to excessive costs and delay.10 In some cases, the broad relevance test combined with the vast amount of electronically stored information and with the economic incentives of hourly fees payable for legal service to stimulate the discovery of vast quantities of documentation,much of which might have been of only peripheral relevance, well-resourced parties were able to use the threat of extensive and expensive discovery to gain tactical advantages over poorer opponents. Satellite litigation involving disputes over the scope and conduct of discovery were not uncommon and drained resources. Large bodies of documentary material tended to increase costs by creating opportunities for calling evidence or cross-examining witnesses about matters that were not central to the issues in the case. Far from clarifying the facts, an excess of documents may tend to complicate and confuse the issues, and undermine the court’s ability to get to the truth. It is therefore not only in the interests of economy that the discovery process needs to be controlled but also in the interest of truth finding. The issue of cost and delay associated with discovery in large litigation in England and Wales was described by Lord Justice Jackson, in his Review of Civil Litigation Costs, as being ‘massively expensive’ and a ‘sequelae’.11 The review led to extensive changes being made to discovery procedure (or ‘disclosure’, as it is called) in England and Wales.12

10 Interim Report, pp 164–80; Final Report, pp 124–30. See Chapter 1, 1.32 ff for a discussion of the Woolf Reforms in England and Wales and the impact on civil procedure in Australia. 11 Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report, TSO, 2008, p 373.

Page 4 of 126 Chapter 15 Discovery, Interrogation and Inspection 12 The Civil Procedure (Amendment) Rules 2013 r 11 (amendments to r 31.5 of the Civil Procedure Rules 1998 on disclosure).

15.8 In Australia, the costs and delay arising out of the discovery process has been an ongoing issue in litigation. The Australian Law Reform Commission (the ALRC) commented that the ‘commercial realities of discovery in the context of possibly“too much information” may represent a significant barrier to justice for many litigants as well as amounting to a huge public cost’.13 In 2011, the ALRC estimated that discovery in Federal Court proceedings represented about 20 per cent of litigation costs. Proceedings involving commercial or corporate matters tended to have disproportionate discovery

Page 550 costs.14 These concerns were repeated in the Productivity Commission’s report on Access to Justice Arrangements.15 The Commission noted that while discovery was an area that had undergone change, ‘greater judicial scrutiny’ was needed to ensure that the process was proportionate to proceedings in which discovery is employed.16 The Commission suggested that court rules be amended to provide expressly for cost implications to be considered at the time that discovery is ordered. As will be seen in the discussion that follows, cost is a factor which is considered expressly in some jurisdictions in relation to the judicial management of the discovery process.

13 Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, ALRC Report No 115, p 14. See also Victorian Law Reform Commission, Civil Justice Review, VLRC Report No 14, p 434. 14 Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, ALRC Report No 115, p 78. 15 Productivity Commission, Access to Justice Arrangements, Inquiry Report, 2014. 16 Productivity Commission, Access to Justice Arrangements, Inquiry Report, 2014, pp 15 and 52.

15.9 Following the overriding objective, discovery in most jurisdictions has been subject to significant reform. The Productivity Commission summarised these reforms as including the narrowing of the scope of discovery, the use of discovery ‘by categories’ over ‘general discovery’ of all issues in dispute, focusing on proportionality, encouraging parties to cooperate in relation to the scope of discovery and the methodology used to search for potentially discoverable material,and the use of case management powers by the court to limit discovery.17 There have been some limitations in the effectiveness of these reforms. For example, Lord Justice Jackson and the Productivity Commission both reported that when the Peruvian Guano test was abandoned in most jurisdictions in favour of a direct relevance test, it did not necessarily lead to a reduction in discovery. Parties continued to provide documents that were indirectly relevant to the proceedings.18 A possible reason for this practice is that it may be quicker and cheaper for a party giving discovery to ‘over-discover’ than to go to the trouble of determining whether documents are directly relevant.19 A party may not be motivated to limit its discovery only to documents that are directly relevant, particularly if the confinement of the discovery would benefit the party’s opponent by reducing the number of documents it has to review.

17 Productivity Commission, Access to Justice Arrangements, Vol 1, 2014, p 398. 18 Productivity Commission, Access to Justice Arrangements, Vol 1, 2014, p 399. 19 A complaint about over-discovery and the associated burden on the party receiving an excess of documents was considered in Novo Tank Pty Ltd (in liq) v Formaction Concrete Civils Pty Ltd (No 3) [2015] FCA 142.

Page 5 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.10 The modern rules of civil procedure in Australia are better designed to achieve a satisfactory accommodation between the need to secure access to all the relevant evidence in the interest of the determination of truth, on the one hand, and on the other hand the need to avoid wasteful, costly and oppressive processes. However, the tensions between these different needs cannot be completely resolved by rules and practice notes. A continuing effort is required in order to ensure that a correct balance is kept and that the new rules achieve the hoped for improvements. To this end, the court has considerable flexibility in defining the scope of discovery and managing the process. Depending on the circumstances of an individual dispute, it may direct narrower or broader discovery. However, the court’s discretion in relation to discovery must be exercised in line with the overriding objective and in accordance with the principles of procedural fairness.

Page 551

15.11 While discovery remains an obvious method of obtaining evidence and information for use in litigation, it is by no means the only source. Parties may also seek evidence and information by way of interrogatories, subpoenas, notices to produce,orders for inspection and, in extraordinary circumstances, by way of search orders. These methods will be examined in this chapter.

Discovery and inspection

15.12 The procedure whereby parties obtain access to each other’s documents is composed of two distinct steps. The first, discovery, consists of the party giving discovery declaring that a class of documents exist or have existed, and are in the possession, custody or control of that party. The declaration takes the form of a list of documents which is verified by an affidavit. The second, inspection, involves allowing the party to whom a document has been discovered an opportunity to inspect it. With the advent of electronically stored information, a party may produce electronic copies of the documents it has discovered in lieu of inspection. It is necessary to be aware that the term ‘discovery’ is used in three different senses.First, the term is sometimes confined to the process of notifying other parties of the existence of a document, that is, discovery in the narrow or proper sense. Secondly, ‘discovery’ is also sometimes used to refer to the whole process of revealing the existence of documents and allowing them to be inspected. Thirdly, and perhaps most commonly, ‘discovery’ is also used to describe all steps that are required by a party in order to give discovery, including the antecedent steps of a party searching for and collecting documents that are answerable to the order for discovery. In Queensland and South Australia (as in England and Wales), the term ‘disclosure’ is used instead of discovery.

15.13 Discovery is ordered typically after the close of pleadings, by which time the factual issues in dispute between the parties will have crystallised.20 As will be discussed below, however, it is possible for a party to obtain discovery before the commencement of proceedings as an aid to determining whether that party has a cause of action or against whom the proceedings should be brought.21 In some jurisdictions, the court may defer discovery until after the parties have exchanged their written evidence.22

Page 6 of 126 Chapter 15 Discovery, Interrogation and Inspection

20 See Federal Court Rules 2011 (Cth) r 20.13(3). 21 See 15.122 ff. 22 This is the approach taken in the Equity Division of the Supreme Court of New South Wales. See 15.23.

Approach to discovery across the jurisdictions Federal Court

15.14 There is no general right of discovery in the Federal Court, nor will the court make an order for discovery as a matter of course.23 Parties to the proceeding must not give discovery unless there is an order for discovery.24 This is because the court controls

Page 552 the process of discovery to avoid parties being ‘crippled with the cost and delay of that process’.25 Discovery will be ordered only if it will facilitate the overriding objective, namely the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.26 The discovery regime under Pt 20 of the Federal Court Rules 2011 (Cth) is intended to avoid unnecessary discovery.27 Under that regime, the burden of discovery must not be disproportionate to the cost and complexity of the case.28 The court’s discretion in relation to the grant and scope of discovery is guided by the Central Practice Note (CPN-1). The practice note provides that discovery is likely to be considered or ordered where, for example, (i) it will facilitate effectively an alternative dispute resolution process; (ii) the court and the parties are sufficiently informed of the nature of the case and the issues in dispute so that the request for discovery can be considered properly; and (iii) the party seeking discovery has justified the need for discovery, including by demonstrating the request is being made at the appropriate time and is targeted, the documents being sought are relevant, and are likely to be significantly probative in nature or are likely to be materially adverse to an opponent’s case.29

23 DSM Nutritional Products LLC v Suntory Holdings Ltd [2013] FCA 675 at [8] Estates Ltd (2016) 241 FCR 111; [2016] FCAFC 59 at [24]

per Tracey J; Jones v Treasury Wine

.

24 Federal Court Rules 2011 (Cth) r 20.12(1). 25 Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7]

per McKerracher J.

26 Federal Court Rules 2011 (Cth) r 20.11; Central Practice Note: National Court Framework and Case Management (CPN-1), [10.2]; Alcano Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 Inc [2011] FCA 1069 at [33]–[34]

; The Coca-Cola Company v Pepsico

per Dodds-Streeton J.

27 Dennis v Chambers Investment Planners Pty Ltd (2012) 201 FCR 321; [2012] FCA 63 at [15]

per Barker J.

28 Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [19] Katzmann J, referring to the former Practice Note CM-5.

per

29 Central Practice Note: National Court Framework and Case Management (CPN-1), [10.6].

15.15 Where a party gives discovery without a court order, it will not be entitled to any costs it has incurred in respect of the discovery.30 This rule, however, does not prevent parties from exchanging documents on an informal basis to

Page 7 of 126 Chapter 15 Discovery, Interrogation and Inspection reduce the scope of later discovery, or to avoid the need for discovery altogether.31 The Central Practice Note envisages that parties will have discussed discovery issues, such as the form and scope of discovery, amongst themselves prior to orders being made. Where discovery is ordered, it will be fashioned to suit the particular circumstances of each case.32 In commercial and corporate matters, the court may utilise one of the following techniques used in international commercial arbitration in order to reduce the burden of discovery: (a) ‘Redfern’ Discovery Procedure: In this procedure, each party seeking discovery describes in a schedule the documents or categories of documents it seeks from the other party, and describes by reference to the pleadings or evidence the relevance of those documents or categories. The other party then records in the schedule its position in relation to each document or category requested, including the basis of any objection. The court will then determine whether those

Page 553   documents or categories in dispute ought to be discovered.33 The court may reject a document or category if it is not sufficiently relevant or the burden placed on the party providing discovery would be disproportionate to the case or would otherwise be unfair in the circumstances. (b) Memorial Procedure: The parties in this procedure file their pleadings along with their evidence and the key documents on which they will rely.34 The aim of this procedure is to enable each party to gain a better understanding of the case of its opponent earlier in the proceedings. The provision of key documents may avoid the need for discovery altogether.

30 Federal Court Rules 2011 (Cth) r 20.12(2). 31 Central Practice Note: National Court Framework and Case Management (CPN-1), [10.3]. 32 Taylor v Saloniklis [2013] FCA 679 at [7]

per Besanko J.

33 Commercial and Corporations Practice Note (C&C-1), [8.4]–[8.7]. 34 Commercial and Corporations Practice Note (C&C-1), [8.8]–[8.11].

15.16 The court may grant either ‘standard discovery’ or ‘non-standard and more extensive discovery’. In standard discovery, a party is required to discover documents that are directly relevant to the issues raised by the pleadings, or in the affidavits accompanying the originating application or affidavits in response to such affidavits.35 A document is relevant if it is a document on which the party giving discovery intends to rely, a document which adversely affects the party’s own case or the case of another party, or a document which supports another party’s case.36 Where standard discovery is inappropriate to a particular case, a party may seek an order for ‘non-standard’ discovery by which the court may cater the order for discovery to the circumstances of the case. This includes, for example,setting different criteria for the discoverability of documents, using categories of documents in the list of documents, permitting the production of documents in electronic format and the use of a discovery plan.37

35 Federal Court Rules 2011 (Cth) r 20.14(1). 36 Federal Court Rules 2011 (Cth) r 20.14(2). 37 Federal Court Rules 2011 (Cth) r 20.15.

Australian Capital Territory

Page 8 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.17 In the Australian Capital Territory, discovery is available to a party as of right. Accordingly, a party to proceedings may serve on another party a notice requiring the other party to disclose ‘discoverable documents’.38 Unless the court grants leave, the notice must not be served until after the close of pleadings and after the matter is listed for hearing. A document is discoverable if it relates directly or indirectly to a matter in issue in the proceedings,or is mentioned, expressly or by necessary implication, in a pleading or notice filed in the proceedings.39 The rules exclude certain documents from discovery including documents filed in court in the proceedings, documents mentioned in a pleading or notice filed in the proceedings by another party (unless discoverable on another ground), and certain privileged communications such as the party’s brief to counsel.40

38 Court Procedures Rules 2006 (ACT) r 607. 39 Court Procedures Rules 2006 (ACT) r 605(1). 40 Court Procedures Rules 2006 (ACT) r 605(2).

15.18 Despite the potentially broad scope of discovery, the court has the power to limit a party’s duty of disclosure or to stagger discovery into stages.41 In cases where

Page 554 the trouble and expense of giving discovery is disproportionate to the value of the discovery in the proceedings, the overriding objective is best served by this power being utilised to limit the scope of discovery to those documents that are the most relevant.

41 Court Procedures Rules 2006 (ACT) r 606(1).

New South Wales

15.19 Discovery in New South Wales is at the discretion of the court.42 Prior to making an order for discovery, the court must be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings (that is, the overriding objective).43 The court may order a party to give discovery to the other party of documents within a class (or classes) of documents specified in the discovery order, or one or more samples of documents within a class (or classes).44 Generally, a class may be described by reference to one or more facts in issue in the proceedings, or by description of the nature of the documents and the period within which they were brought into existence. A class of documents must not be specified in terms more general than the court considers justified in the circumstances.45 Above all, the court will not order the discovery of a document unless it is relevant to a fact in issue,46 that is, the document contains material that could rationally affect the assessment of the probability of the existence of that fact irrespective of whether it is admissible.47 A document is not relevant merely because it goes to the credibility of a witness. Nor is a document relevant merely because it would lead to a train of inquiry that would result in either damage to or support for a party’s case.48

Page 9 of 126 Chapter 15 Discovery, Interrogation and Inspection 42 Hoxton Park Residents Action Group Inc v Liverpool City Council [2014] NSWSC 372 at [62] 43 Commonwealth Bank of Australia v Goater [2016] NSWSC 710 at [32]

per Hallen J.

per Adamson J.

44 Uniform Civil Procedure Rules 2005 (NSW) r 21.2(1). 45 Uniform Civil Procedure Rules 2005 (NSW) r 21.2(2). 46 Uniform Civil Procedure Rules 2005 (NSW) r 21.2(4). 47 Uniform Civil Procedure Rules 2005 (NSW) r 21.1. The definition is similar to the definition of relevance in s 55 of the Evidence Act 1995 (NSW) except that it does not include information that could indirectly affect the assessment of the probability of the existence of a fact in issue in the proceeding. 48 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at 101

per Allsop P.

15.20 Certain documents are excluded from discovery, regardless of whether they are relevant to the proceedings. Unless the court declares otherwise, a party is not required to discover any of the following documents:49 (a) documents filed in the proceedings; (b) documents served on the party seeking discovery after the commencement of the proceedings; (c) documents that wholly came into existence after the commencement of the proceedings; (d) additional copies of documents discovered, unless such documents contain any markings, deletions or matter which is relevant to a fact in issue; and (e) documents comprising original written communications sent by the party giving discovery prior to the date of commencement of the proceedings of which copies are discovered.

Page 555

49 Uniform Civil Procedure Rules 2005 (NSW) r 21.1(1).

15.21 While the court may make orders for ‘general discovery’ (that is, discovery of all documents directly relevant to a fact in issue in the proceedings), such discovery is not the default form.50 Discovery by classes or categories is intended to limit the scope of the discovery to those classes of documents that are most relevant to the proceedings. There is, however, a risk that this approach to discovery has the unintended consequence of satellite disputes in the abstract about the relevance of each category proposed by the party seeking discovery. In addition, there is also a risk that a category may be framed in such a way that it picks up documents that have no relevance to the proceedings.51 There is also a risk that categories may result in documents that are relevant not being discoverable because they do not fall within a discovery category.

50 National Australia Bank Ltd v Idoport Pty Ltd [2000] NSWCA 8 at [7] Reinforced Earth [2012] NSWSC 458 at [6] 51 Ashton v Pratt [2010] NSWSC 1376

.

per McDougall J.

; Leighton International v Hodges; Thiess v

Page 10 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.22 Unless there are special reasons, the court will not order discovery in any proceedings for damages on a common law claim arising out of the death of, or bodily injury to, any person, or for contribution in respect of damages so arising.52 This restriction does not apply to preliminary discovery.53 The person seeking discovery bears the burden of establishing the existence of ‘special reasons’. The expression ‘special reasons’ has been given its ordinary meaning by the court, namely reasons of ‘such a kind as to exceed in some way that which is usual or common’.54 Special reasons are likely to exist where the documents being sought are concerned with subjects that are ‘largely or peculiarly within the knowledge of the defendant’, or which would be ‘very difficult or impossible’for the plaintiff to prove without the documents sought in discovery.55 Accordingly, the court will allow discovery if its denial would be to deprive the plaintiff of potentially significant information until trial.56

52 Uniform Civil Procedure Rules 2005 (NSW) r 21.8. 53 This is because the restriction in r 21.8 applies in relation to an ‘order for discovery’ which is defined to be an order under r 21.2. Preliminary discovery is ordered under Pt 5 of the Uniform Civil Procedure Rules 2005 (NSW). 54 Priest v New South Wales [2006] NSWSC 12 at [128]

per Johnson J.

55 Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 at [15] 56 Wood v Ghoz [2017] NSWSC 1561 at [21]

per Rothman J.

per Hamill J.

15.23 In the Equity Division of the Supreme Court, the discretion to order discovery is guided by Practice Note SC Eq 11.57 Two key rules emerge from the practice note. First, the court will not make an order for ‘disclosure’ until the parties have served their documentary evidence, unless there are ‘exceptional circumstances necessitating disclosure’at an earlier time.58 Secondly, the court will not make an order for ‘disclosure’ unless it is ‘necessary for the real issues in dispute’.59 The practice note only applies where the court is called upon to make an order for discovery.60 It does not prevent parties agreeing to produce information to each other. The use of the term ‘disclosure’

Page 556 (as opposed to discovery) suggests that the practice note extends to other forms of pretrial production.61 In Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd ,62 Bergin CJ in Eq envisaged that the regime would operate as follows: [T]he plaintiffs would serve their evidence, including documents upon which they rely, in relation to their cases in chief. The defendants would then serve their evidence, including documents upon which they rely, in their respective cases.If at that time it appears necessary for disclosure of particular documents additional to those that had been relied upon by any of the parties, a consensual regime might be put in place or an application for disclosure of particular documents, or categories of documents, might be made.

57 The practice note applies to all proceedings in the Equity Division except for those in the Commercial Arbitration List. 58 Practice Note SC Eq 11: Disclosure in the Equity Division (22 March 2012), [4].

Page 11 of 126 Chapter 15 Discovery, Interrogation and Inspection 59 Practice Note SC Eq 11: Disclosure in the Equity Division (22 March 2012), [5]. 60 Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458 at [11]

per McDougall J.

61 Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458 at [13]

per McDougall J.

62 [2012] NSWSC 393 at [65]

.

15.24 The practice note proceeds on an empirical assumption that the ‘real issues’ in proceedings are not limited to those arising out of pleadings, but include those which also arise out of the parties’ evidence.63 The process of discovery therefore is no longer carried out in the abstract of what is stated in the pleadings, but is informed by the parties’ evidence.64

63 Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458 at [14]

per McDougall J.

64 Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 at [66]

per Bergin CJ in Eq.

15.25 ‘Exceptional circumstances’ arise where documents sought by way of discovery are necessary to fairly prepare a case for trial.65 For instance, it may be necessary to order discovery before the exchange of evidence where the relevant facts are not within the knowledge of the party seeking the discovery.66 In such a case, discovery may be necessary in order for the party to put on all of its evidence.

65 Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [17]

per Brereton J.

66 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2012] NSWSC 913 at [25] Constructions Pty Ltd v Land and Housing Corporation (NSW) [2014] NSWSC 684 at [18]

per Gzell J; Bauen

per Ball J.

15.26 In all circumstances where disclosure is sought in the Equity Division, the application must be accompanied by an affidavit setting out the reason why disclosure is necessary for the resolution of the real issues in dispute, the classes of documents in respect of which discovery is sought, and the likely cost of such disclosure.67 With the parties being required to disclose the likely cost of disclosure, the court is able to make a more informed decision about whether the costs of discovery are proportionate to the benefit it is thought to provide to the proceedings.As a further check on the discovery process, the court may impose a limit on the amount of costs that are recoverable by a party in respect of disclosure.

Page 12 of 126 Chapter 15 Discovery, Interrogation and Inspection 67 Practice Note SC Eq 11: Disclosure in the Equity Division (22 March 2012), [6].

Northern Territory

15.27 In the Northern Territory, discovery takes place when the pleadings have closed,68 although the court may order discovery to take place at any stage of the

Page 557 proceedings.69 The parties may agree or the court may order that discovery be limited or dispensed with altogether.70 Documents are discoverable if they relate to a question raised by the pleadings, although parties are not required to discover documents only because they lead to a train of inquiry.71

68 Supreme Court Rules (NT) r 29.2(1). 69 Supreme Court Rules (NT) r 29.7. 70 Supreme Court Rules (NT) r 29.2(2) and (5). 71 Supreme Court Rules (NT) r 29.2(1) and (3).

Queensland

15.28 In Queensland, each party has a duty to disclose documents that are directly relevant to an allegation in issue in the pleadings or, if there are no pleadings, directly relevant to a fact in issue in the proceedings.72 In Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd ,73 Daubney J explained that for a document to be directly relevant, it must tend to prove or disprove the truth of a particular allegation in the proceedings.

72 Uniform Civil Procedure Rules 1999 (Qld) r 211(1). 73 [2008] QSC 317 at [43]

.

15.29 A party may by written notice request that another party defer providing disclosure of particular documents until a later time as requested by the first party.74 A party is not required to disclose documents subject to a valid claim for privilege, documents going only to credit, and additional copies of documents if it is reasonable to suppose that those additional copies do not contain a change,obliteration, mark or feature that is likely to affect the outcome of the proceedings.75

74 Uniform Civil Procedure Rules 1999 (Qld) r 220. 75 Uniform Civil Procedure Rules 1999 (Qld) r 212(1).

Page 13 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.30 A court may limit or relieve the parties from their duty of disclosure having regard, among other things, to the likely time, cost and inconvenience in providing disclosure, the relative importance of the question to which the documents relate,and the probable effect on the outcome of the proceedings if the documents are not disclosed.76 The discretion of the court is unfettered except that it must be applied judicially in the circumstances of each case.77 Applying the overriding objective, it stands to reason that classes of documents that are unlikely to have a material impact on the outcome of the proceedings but involve a disproportionate effort and expense to disclose ought to be excised from the duty of disclosure. For cases in the Supervised Case List of the Supreme Court, parties are not required to give disclosure until ordered to do so by the court and after the parties have prepared a document plan for the efficient management of documents in the proceedings.78

76 Uniform Civil Procedure Rules 1999 (Qld) r 224. 77 Coster v Bathgate [2005] QCA 210 at [20]

.

78 Practice Direction No 11 of 2012: Supervised Case List, SCL Practice Direction attachment 1, [3.1].

South Australia

15.31 In South Australia, each party has a duty to provide disclosure of documents that are directly relevant to any issue raised in the proceedings or, if there are no

Page 558 pleadings, in affidavits filed in lieu of pleadings.79 It has been held that a document will not be directly relevant if, rather than proving an issue arising on the pleadings, ‘it merely tends to prove something that may be relevant to an issue’.80 The court may, however, order that disclosure be given in respect of a broader class of documents.81 Unless the court otherwise orders, certain documents are exempt from disclosure such as documents that have been filed in the proceedings, communications between the parties’ lawyers and copies of documents that have been disclosed or are not required to be disclosed.82

79 Supreme Court Civil Rules 2006 (SA) r 136(1). 80 Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266 (SASC) at [11] per Doyle CJ, cited with approval in Channel Seven Adelaide Pty Ltd v Lane & Hurley [2004] SASC 177 at [24]

per Duggan J.

81 Supreme Court Civil Rules 2006 (SA) r 136(1)(b). 82 Supreme Court Civil Rules 2006 (SA) r 136(6).

15.32 Despite the general duty of disclosure, the parties may agree to dispense or modify the extent of their disclosure obligations.83 On the application of a party, the court may also modify the disclosure duty of the parties, for example, by limiting the classes of documents that are to be disclosed, or by staggering the disclosure requirement into stages.84 Direction 3.12 of the Supreme Court Practice Directions 2006 sets out an alternative disclosure regime by which the plaintiff circulates to the other parties a draft list of categories of documents or of specified

Page 14 of 126 Chapter 15 Discovery, Interrogation and Inspection issues for which disclosure will be given. The parties are then to use reasonable endeavours to attempt to agree on the list of categories or issues, with the court to resolve disputes between the parties. Once a list of categories or issues is finalised (either by agreement or court order), the parties are to give discovery in accordance with the list.85

83 Supreme Court Civil Rules 2006 (SA) rr 138 and 139. 84 Supreme Court Civil Rules 2006 (SA) r 139. 85 Supreme Court Practice Direction 2006 (SA), [3.12.2].

Tasmania

15.33 In Tasmania, a party to proceedings is under an obligation to make discovery if given notice to do so by another party.86 Some issues in proceedings are expressly excluded from the duty to provide discovery. For example, a defendant in proceedings concerning a motor vehicle collision is not obligated to give discovery.87 The court may, on the application of a party, limit, defer or dispense with discovery.88

86 Supreme Court Rules 2000 (Tas) r 383(1). 87 Supreme Court Rules 2000 (Tas) r 383(4). 88 Supreme Court Rules 2000 (Tas) r 383(6).

15.34 Unless a court orders or the parties agree otherwise, the parties are under an obligation to give discovery of all documents that are directly relevant to the issues raised by the pleadings.89 A document is directly relevant if it is a document on which the party giving discovery intends to rely, a document that adversely affects that party’s own case, or a document that supports or adversely affects another party’s case.90 Generally,

Page 559 a document which has not been discovered (or otherwise produced under Div 1A of Pt 13 of the Supreme Court Rules 2000 (Tas)) must not be received into evidence.91

89 Supreme Court Rules 2000 (Tas) r 382(1). 90 Supreme Court Rules 2000 (Tas) r 382(2). 91 Supreme Court Rules 2000 (Tas) r 396. A document may, however, be received into evidence if it has been disclosed in a certificate of readiness filed under r 544 or joint letter of readiness filed under r 545.

Victoria

15.35

Page 15 of 126 Chapter 15 Discovery, Interrogation and Inspection In Victoria, parties have an overarching obligation to disclose, at the earliest reasonable time, the existence of all documents that are, or have been, in the party’s possession, custody or control of which the party is aware, and which the party considers, or ought reasonably to consider, are critical to the resolution of the dispute.92 This obligation is in addition to the parties’ general discovery obligations and aims to ensure the parties are able to make an assessment of their prospects at the earliest possible stage and act accordingly.93

92 Civil Procedure Act 2010 (Vic) s 26. 93 Sheales v The Age Company Pty Ltd (Costs Ruling) [2017] VSC 605 at [16]

per John Dixon J.

15.36 A further general procedure for discovery is set out in Pt 29 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).94 Generally, discovery takes place when the pleadings have closed,95 although the court may defer discovery to another time.96 A party is required to give discovery only of documents on which the party giving discovery relies, documents that adversely affect that party’s own case and documents that adversely affect or support another party’s case.97 If there are several copies of one document, the party giving discovery needs only to disclose the original or one copy.98

94 The discovery procedure in the rules must be followed except where the court orders otherwise: Civil Procedure Act 2010 (Vic) s 54. 95 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.02(1). 96 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.05. 97 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1. 98 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1(4)(b).

15.37 The court has discretion to modify the obligation of a party to provide discovery. Under s 55 of the Civil Procedure Act 2010 (Vic), the court may make any orders or give directions that it considers appropriate in relation to discovery. In Liesfield v SPI Electricity Pty Ltd ,99 Forrest J held that any order concerning discovery ‘should be directed to finding the most efficient, effective and economical management of the discovery, bearing in mind the nature and complexity of the trial’. Accordingly,among other things, the court may confine the duty of discovery to specific categories or samples of documents,100 limit discovery to particular issues in dispute,101 dispense with discovery entirely,102 stagger the discovery into stages,103 and expand the scope of discovery.104 The court is required to ensure that discovery is proportionate and

Page 560 relevant to the issues in dispute.105 As a further means of limiting the burden of discovery, the court may order that a party provide all relevant documents in that party’s possession or control on the basis that any privilege in those documents is not waived, thus avoiding the need to review the documents for privilege in the first case.106 Such an order requires the consent of all parties.

99 [2013] VSC 634 at [25]

.

Page 16 of 126 Chapter 15 Discovery, Interrogation and Inspection 100 Civil Procedure Act 2010 (Vic) s 55(2)(a) and (c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.05. 101 Civil Procedure Act 2010 (Vic) s 55(2)(a). 102 Civil Procedure Act 2010 (Vic) s 55(2)(b). 103 Civil Procedure Act 2010 (Vic) s 55(2)(d). 104 Civil Procedure Act 2010 (Vic) s 55(2)(f); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.05.2. 105 Matthews v SPI Electricity Pty Ltd [2011] VSC 401 at [29] 628 at [32]

per Zammit AsJ; Cahill v Kiversun Pty Ltd [2017] VSC

per Gardiner AsJ.

106 Civil Procedure Act 2010 (Vic) s 55A.

15.38 In the Commercial Court of the Supreme Court, the parties are expected to give discovery only in accordance with an order of the court, rather than in response to a notice by another party.107 Accordingly, parties are encouraged to agree upon the process for discovery and consider whether limited categories of discovery should be exchanged.108 The List Judge may impose an order specifying the maximum costs that may be recovered by a party in respect of discovery (or a particular aspect of the discovery process).109

107 Supreme Court of Victoria, Commercial Court, Practice Note No 10 (2011), [12.7]. 108 Supreme Court of Victoria, Commercial Court, Practice Note No 10 (2011), [12.6]. 109 Supreme Court of Victoria, Commercial Court, Practice Note No 10 (2011), [12.7.5].

Western Australia

15.39 In Western Australia, a party may give written notice to another party requiring the other party to give discovery relating to any matter in question in the proceedings.110 No leave is required for the notice to be issued unless the proceedings have been set down for trial.111 The discoverability of documents is determined by reference to the Peruvian Guano test. The court may on an application or by its own motion make orders to defer discovery to a later stage, limit the scope of discovery or dispense with discovery entirely.112 In making such orders, the court is to have regard to the overriding objective.113 In certain specialised proceedings before the Supreme Court, discovery is not ordinarily available.114

110 Rules of the Supreme Court 1971 (WA) O 26 r 1(1). 111 Rules of the Supreme Court 1971 (WA) O 26 r 1(2). 112 Rules of the Supreme Court 1971 (WA) O 26 r 7. 113 Rules of the Supreme Court 1971 (WA) O 1 r 4B. See also Supreme Court of Western Australia, Consolidated Practice Directions (2009), [4.1.2], [10]. 114 For example, applications under Pts XI and XII of the Wills Act 1970 (WA): see Supreme Court of Western Australia, Consolidated Practice Directions (2009) [9.3.1], [9]–[11].

Documents

Page 17 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.40 The duty to give discovery applies only to documents. In each jurisdiction, a ‘document’ is defined broadly and includes documents in hard copy and electronic formats.115 For example, a document is defined in the Federal Court as a record of information mentioned in the Evidence Act 1995 (Cth), which includes:116

Page 561   (a)

anything on which there is writing;

(b)

anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(c)

anything from which sounds, images or writings can be reproduced with or without the aid of anything else;

(d)

a map, plan, drawing or photograph,

as well as any other material, data or information stored or recorded by mechanical or electronic means.117 In Palavi v Radio 2UE Sydney Pty Ltd ,118 it was held that a mobile phone fell within the definition of a document.

115 Federal Court Rules 2011 (Cth) Sch 1; Court Procedures Rules 2006 (ACT) r 600; Interpretation Act 1987 (NSW) s 21(1); Supreme Court Rules (NT) r 29.12; Acts Interpretation Act 1954 (Qld) s 36; Supreme Court Civil Rules 2006 (SA) r 4; Supreme Court Rules 2000 (Tas) r 381; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.12; Rules of the Supreme Court 1971 (WA) O 26A r 1A. 116 Evidence Act 1995 (Cth) Dictionary Pt 1. 117 Federal Court Rules 2011 (Cth) Sch 1. 118 [2012] NSWCA 264 at [31]

per Allsop P.

Possession, custody or power

15.41 As a general rule, a party giving discovery is only required to discover or disclose those documents that are within its possession, custody or power.119 While a slightly different formulation is used in some jurisdictions, the principles are substantially the same, except that in the Australian Capital Territory a party is only required to discover those documents in its possession and in Queensland, in its possession or control.120 As discussed further below, parties may also need to account for those documents which once were but are no longer in their possession, custody or control.

119 Federal Court Rules 2011 (Cth) r 20.14(1)(c) and Sch 1 (definition of control); Court Procedures Rules 2006 (ACT) r 605(1); Uniform Civil Procedure Rules 2005 (NSW) r 21.4 and Civil Procedure Act 2005 (NSW) s 3 (definition of possession); Supreme Court Rules (NT) r 29.2(1); Uniform Civil Procedure Rules 1999(Qld) r 211(1)(a); Supreme Court Civil Rules 2006 (SA) rr 4 (definition of possession) and 136(1)(3); Supreme Court Rules 2000 (Tas) r 382; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.02(1); Rules of the Supreme Court 1971 (WA) O 26A r 1(1). 120 In Erskine v McDowell [2001] QDC 192 than power.

, Robertson DCJ took the view that ‘control’ was more restrictive in scope

Page 18 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.42 Documents in the possession of a party are those documents which are in the physical possession of a person in circumstances where that person has a legal right of possession.121 A document is still in the possession of a party despite possession being shared with another party.122 Custody means a physical or corporeal holding of a document, whether or not the party is entitled to possess or to disclose the document.123 Accordingly, records that a company director holds that belong to his or her company are in the custody of the director despite those records being owned by the company.124 An issue may arise where a party physically holds documents on the condition that they not be disclosed to a third party. In such a case, the party holding

Page 562 the documents has custody over those documents and therefore must,assuming the documents are discoverable, discover them.125

121 Archer Capital 4A Pty Ltd v Sage Group plc (No 3) (2013) 306 ALR 414; [2013] FCA 1160 at [117] 122 Suh v Cho [2013] VSC 491

per Wigney J.

.

123 B v B [1971] 1 All ER 801 (EWHC) at 805 per Dunn J; Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979)143 CLR 499 at 519

.

124 Roux v Australian Broadcasting Commission [1992] 2 VR 577

.

125 See Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 court may make appropriate orders in relation to confidentiality (see 15.202 ff).

. The

15.43 In the context of discovery, power means a present and legally enforceable right to inspect or to obtain possession of the document from another person who may have custody over the document.126 The test is whether the party has a present right of inspection, rather than a right to obtain immediate inspection.127 The concept of ‘power’ in the context of discovery is not without difficulty. For example, citizens have a right to inspect a variety of documents in the hands of public authorities under freedom of information laws.128 Does it mean that whenever there is such a right a litigant comes under an obligation of discovery? It may be argued that the principle of equality of arms demands that where a party has a right to obtain information contained in a document,it should be obliged to disclose it to other parties if it is relevant to the determination of an issue in legal proceedings, unless there are some special reasons for making an exception. On this view, the duty of disclosure extends to documents that a party may inspect on application to some public authority.129 However, in Theodore v Australian Postal Commission ,130 Murphy J held that documents to which a party would have a right of access under the Freedom of Information Act 1982 (Cth) were not within the power of that party. This is because the right was subject to a decision made by a minister or responsible officer of the relevant government agency, and the court was not in a position to consider what decision would be made.

126 Taylor v Santos Ltd (1998) 71 SASR 434 at 438

per Doyle CJ.

127 Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123; [2009] VSC 417 at [27]–[28] 128 Discussed further in 15.229 ff. 129 Palmdale Insurance Ltd (in liq) v L Grollo and Co Pty Ltd [1987] VR 113

.

per Cavanough J.

Page 19 of 126 Chapter 15 Discovery, Interrogation and Inspection 130 [1988] VR 272 at 279

per Murphy J.

15.44 The right to inspect or obtain possession must be one that is not contingent on the consent of a third party or on a third party refraining from exercising any claim over the document to prevent inspection.131 For example, in Alstom Ltd v Liberty Mutual Insurance Co Ltd ,132 the defendant contended that the plaintiff had power over certain documents held by a third party by virtue of a contractual right with that third party. The third party refused to provide the documents to the plaintiff on the basis that those documents were confidential. While Siopis J held that it was not clear from the contract whether the third party had an obligation to provide confidential information to the plaintiff, the confidentiality claim nonetheless meant that the plaintiff did not have a present legal right to inspect the documents.133

131 Taylor v Santos Ltd (1998) 71 SASR 434 at 438

per Doyle CJ; Bova v Avati [2009] NSWSC 921 at [360]

Ward J; Theodore v Australian Postal Commission [1988] VR 272 at 277 132 [2010] FCA 588

per

per Murphy J.

.

133 [2010] FCA 588 at [21]–[22]

.

15.45 A further issue arises as to whether companies have an obligation to discover documents belonging to subsidiaries, to parent companies and to other companies in

Page 563 the same corporate group. This issue was considered by the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd .134 In that case, the plaintiffs contended that documents held by the defendants’ subsidiaries, which were based overseas in South Africa and Rhodesia (as it was then), were within the power of the defendants. The boards of the subsidiaries refused to provide the defendants with access to the documents on the basis that to do so without a ministerial licence would constitute an offence under local laws, and that it would not, in any event, be in the subsidiaries’ best interests to disclose the documents to the defendants. It was argued by the plaintiffs that a right of access would arise if the defendants caused the boards of the subsidiaries to amend the articles of association to entitle the defendants to inspect the documents.The House of Lords held that, in these circumstances, the defendants had no power over the documents because they did not have a presently enforceable right.135 Lord Diplock held that an order for discovery did not compel the defendants to take steps to acquire a right to inspect documents.136

134 [1980] 1 WLR 627

.

135 [1980] 1 WLR 627

at 635

136 [1980] 1 WLR 627

at 635–6

15.46

per Lord Diplock. .

Page 20 of 126 Chapter 15 Discovery, Interrogation and Inspection In subsequent decisions, courts have held that Lonrho turned on its own unique set of facts.137 Lord Diplock acknowledged as much when his Lordship said that he declined any invitation to ‘roam further into the law of discovery’, noting that there might be a different result in the case of ‘one-man companies’in which there is a single shareholder who is also the director.138 The outcome may therefore turn on the particular shareholding arrangements, on the subsidiary’s constitution and the like. In a later case, Hoffmann LJ observed that the limitation of discovery to documents in the hands of the company actually sued may lead to injustice where companies in the same group are effectively involved in running a joint business.139

137 Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643 at 647 Ltd [1987] VR 113 at 116 417 at [29]

per Hedigan J; Palmdale Insurance (in liq) v L Grollo and Co Pty

per Marks J; Psalidis v Norwich Union Life Australia Ltd (2009)29 VR 123; [2009] VSC

per Cavanough J.

138 [1980] 1 WLR 627

at 636–7

139 Unilever v Chefaro [1994] FSR 135

. (EWCA).

15.47 In South Australia, if a document is not in the immediate possession of a party, but is obtainable from a third party, the party must take reasonable steps to obtain the document or a copy of it.140

140 Supreme Court Civil Rules 2006 (SA) r 140(2).

Limited scope of discovery under modern rules

15.48 Under the old Peruvian Guano test, all documents which had either a direct bearing on the issues or which had an indirect bearing in the sense that they could lead to a train of inquiry that could produce relevant information were discoverable.141 With the exception of the Australian Capital Territory and Western Australia, the test has been abandoned in favour of a more limited approach to discovery intended to keep

Page 564 the time, effort and cost associated with discovery in proportion to the proceedings. It combines relevance with probative usefulness relative to cost and effort. On this approach, discovery ought to be limited, by and large, to documents that are likely to assist the determination of the issues and to leave out documents that are unlikely to be useful for deciding the issues.

141 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 LJ.

15.49

at 63

per Brett

Page 21 of 126 Chapter 15 Discovery, Interrogation and Inspection Notwithstanding the greater discrimination called for by the modern rules of discovery in most jurisdictions, discovery will in many cases be conducted in much the same way as discovery under the Peruvian Guano test. Many cases will involve only limited amounts of documents and their connection to the issues will normally be clear. The modern rules of procedure, however, make greater demands on lawyers and the court in complex commercial litigation or in representative proceedings. In large disputes, there are often extensive bodies of potentially discoverable documents, of which only a portion will ultimately prove discoverable. The cost and effort of reviewing the entire body of material may be disproportionate to the benefit obtained by such an extensive review. Discovery in such cases calls for a great deal more judgment than in the past. It will be necessary to consider the contribution the discovery of certain classes of documents is likely to make to the determination of the issues. Yet the usefulness of searching for particular classes of documents might depend to a considerable extent on the state of the rest of the evidence. Since discovery decisions, at least in some jurisdictions, have to be given early in the pretrial process, practitioners might find it difficult to make more than a very rough assessment of usefulness at an early stage.

15.50 To overcome such problems, the rules in some jurisdictions empower the courts to direct that discovery or inspection should take place in stages. Where the pool of potentially relevant documents is very large, the court may adopt a gradual approach to discovery by ordering limited discovery in the first instance, and assessing the need for further discovery efforts in the light of the results. The possibility of staged discovery is particularly useful in split trial cases. For example,in cases concerning intellectual property infringement, it is common for the court to determine the issue of whether there has been an infringement before inquiring into profits made by the defendant as a result of the infringement. In such cases, it makes sense to limit discovery in the first instance to the issue of infringement. That said, some limited discovery with regard to quantum may be desirable to give the plaintiff some idea about the amounts at stake.

15.51 Parties conducting discovery in complex litigation need to be sufficiently informed about the case as a whole to be able to make value judgments about the relevance of a document. In most instances it will be obvious whether a document assists or undermines a party’s case, but assessing whether the document may support the opponent’s case may not always be easy. It could depend on the entirety of the opponent’s case, with which the disclosing party may not be fully familiar.However, the harm done by failure to discover such a document may not be permanent, because the duty of disclosure is a continuing duty.142 If in the course of litigation a party realises that a document, which it had not considered pertinent, is likely to support

Page 565 another party’s case, it is under an obligation to bring the document to the other party’s attention. For this reason (as well as a result of initial oversight or incompetence), supplementary discovery is far from uncommon.

142 See 15.72 ff.

‘Reasonable search’ and ‘reasonable inquiries’: incorporating the overriding objective in discovery

15.52

Page 22 of 126 Chapter 15 Discovery, Interrogation and Inspection A party giving discovery must discover those documents which it can identify or locate after a reasonable search or after having made reasonable inquiries (or ‘enquiries’).143 Typically, the party (or its proper officer, if the party is a company) will be required to verify the extent of its search in the form of an affidavit attached to the list of documents. Whether a party has conducted a reasonable search will depend upon the circumstances of each case. In Taylor v Rundell ,144 Lord Lyndhurst LC said: ‘If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it’. The party giving discovery must therefore make proper inquiries as to whether there are any documents within the scope of the duty or orders to give discovery which may not be in that party’s custody or possession, but which may nonetheless be within its power.145 For example, a party may need to make inquiries of its agent who may be holding documents owned by the party.

143 Federal Court Rules 2011 (Cth) r 20.14(1)(b); Court Procedures Rules 2006 (ACT) r 608(3)(a); Uniform Civil Procedure Rules 2005 (NSW) r 21.4(2)(a); Supreme Court Rules 2000 (Tas) r 382(1)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1(3); Supreme Court Form 18 (Affidavit Verifying the List of Documents) which is a requirement under O 26 r 4(3) of the Rules of the Supreme Court 1971 (WA). There is no equivalent rule in the Northern Territory, Queensland and South Australia. In Queensland,the obligation to conduct a reasonable search was referred to in Central Queensland Mining Supplies Pty Ltd v Columbia Street Casting Ltd [2010] QSC 183 at [38] per Applegarth J. 144 (1841) Cr & Ph 104; 41 ER 429 at 433. 145 Re McGorm; Ex parte Co-operative Building Society of South Australia (1989) 86 ALR 275 at 278 J.

per von Doussa

15.53 In Re McGorm; Ex parte Co-operative Building Society of South Australia ,146 von Doussa J summed up what was required of a party giving discovery as follows: The scope of the inquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The inquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive.

146 (1989) 86 ALR 275 at 278

. See also Sroka v Gorbal & Scott (1980) 25 SASR 356 at 361

per Matheson J.

15.54 The overriding objective and the need for proportionality will inform a party’s obligation to conduct a ‘reasonable search’ or make ‘reasonable inquiries’. In some jurisdictions, the factors that a party must take into account are set out in the court rules. For example, in Victoria, the party making a reasonable search may take into account:147 (a)

the nature and complexity of the proceedings;

Page 566 (b)

the number of documents involved;

Page 23 of 126 Chapter 15 Discovery, Interrogation and Inspection (c)

the ease and cost of retrieving a document;

(d)

the significance of any document to be found; and

(e)

any other relevant matter.

147 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.01.1(5). See also Federal Court Rules 2011 (Cth) r 20.14(3); Supreme Court Rules 2000 (Tas) r 382(3).

15.55 The concept of a reasonable search assumes that there may be imperfections in the discovery. In Digicel (St Lucia) Ltd v Cable & Wireless plc ,148 Morgan J held that the duty to discover does not require that ‘no stone should be left unturned’. It is possible that a relevant document or ‘even a smoking gun’ will not be located by the party giving discovery. Because a court can only proceed on the materials placed before it by the parties, a material document missed in the discovery has the potential to cause the court to reach an outcome that is not entirely accurate. However, as acknowledged by Morgan J, these imperfections can be justified when considering that the overriding objective calls for proportionality. In Nichia Corporation v Argos Ltd ,149 Jacob LJ commented that the modern rules of civil procedure ‘sacrifice the “perfect justice” solution for the more pragmatic … “reasonable search” rules, even though in rare instance the “right”result may not be achieved. In the vast majority of instances, it will be, and more cheaply so’.

148 [2008] EWHC 2522 (Ch) at [46]

.

149 [2007] Bus LR 1753; [2007] EWCA Civ 741 at [52]

.

15.56 The risk of harm arising from the imperfect discovery can be mitigated in four ways. First, the parties have an ongoing duty to discover documents. Accordingly, if a party later realises that it had overlooked a document that ought to have been discovered, the party must discover that document. Secondly, in the case of electronic discovery, the parties should cooperate and attempt to reach an agreement on a plan on how the search for material will be carried out. This enables each party to have a clearer understanding of the potential limitations in the discovery methodology. Thirdly, a party unable to turn up any documents for a particular category or class of documents that are discoverable may be required to explain by way of affidavit verifying the list of documents what inquiries were made by that party to locate the relevant documents.150 In Victoria, where a party does not, in making a reasonable search, search for a category or class of documents, the party is obliged to reasons include in its affidavit.151 Fourthly, as discussed below, the court may make orders for further and better discovery, or discovery in relation to particular documents or classes of documents.152

150 Procter v Kalivis (No 2) [2010] FCA 663 at [16]

per Besanko J.

151 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.04(2). 152 See 15.66 ff.

Page 24 of 126 Chapter 15 Discovery, Interrogation and Inspection

Verified list of documents

15.57 In most jurisdictions, discovery is normally given by means of a list of documents.153 In Victoria, the party giving discovery is required to serve an affidavit

Page 567 of documents which performs a similar function to a list of documents.154 With the exception of Queensland, the form of the list is prescribed either in the rules or by the court.155 The list must provide a sufficient description of the documents so that the court may, if necessary, direct the party giving discovery to produce for inspection those documents contained in the list.156 The exact format of each list will vary between jurisdictions. For example, in New South Wales, the list of documents is divided into two parts.157 Part 1 lists those documents in the possession of the party giving discovery and part 2 lists those documents relating to documents that are not, but that within the last six months prior to the commencement of the proceeding were, in the possession of the party giving discovery. The list must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group. The list must also identify any document over which privilege is claimed and the basis (or ‘circumstances’) under which the privilege is claimed to arise.158

153 Federal Court Rules 2011 (Cth) r 20.17; Uniform Civil Procedure Rules 2005 (NSW) r 21.3; Supreme Court Rules (NT) r 29.4; Uniform Civil Procedure Rules 1999 (Qld) r 214(1)(a); Supreme Court Civil Rules 2006 (SA) r 136(2) and 136(3); Supreme Court Rules 2000 (Tas) r 384(1)(a); Rules of the Supreme Court 1971 (WA) O 26 r 4(1). 154 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.04. 155 FCA: Form 38; NSW: Form 11, although the form is also described in the r 21.3 of the Uniform Civil Procedure Rules 2005 (NSW); NT:Form 29A; SA: Form 20; Tas: Form 26; Vic: Form 29B (affidavit of documents); WA: Form 17. 156 Taylor v Batten (1878) 4 QBD 85

.

157 Uniform Civil Procedure Rules 2005 (NSW) r 21.3(2). 158 Uniform Civil Procedure Rules 2005 (NSW) r 21.3(2)(d).

15.58 In each jurisdiction, a party giving discovery will be required to describe in its list of documents, those documents which have been, but are no longer, in that party’s possession, custody or control and what became of those documents.159 This will enable the other party to the proceedings to test whether the documents within the possession of the third party are still within the power of the party giving discovery and, if not, consider applying for a subpoena or order for third party discovery in relation to those documents.

159 For example, Federal Court Rules 2011 (Cth) r 20.17(2).

15.59 In most jurisdictions, it is a requirement that the party giving discovery verify that it has complied with its discovery obligations, usually by way of an affidavit (which may form part of the list of documents).160 Where the party is a

Page 25 of 126 Chapter 15 Discovery, Interrogation and Inspection company, the affidavit must be made by an officer authorised to give the affidavit on the company’s behalf. By way of example, in the Federal Court, the deponent of the affidavit verifying the list of documents must verify that: (a) the deponent has made reasonable enquiries as to the existence and location of the documents required to be discovered; (b) to the best of the deponent’s knowledge, information and belief, there are no documents required to be discovered that are or have been in the party’s possession,

Page 568   custody or power (that is, ‘control’) other than the documents specified in the list of documents; (c) the documents set out in part 1 of the list are in the party’s control and are not the subject of a claim for privilege; (d) the documents set out in part 2 of the list, while within the control of the party, are the subject of a claim for privilege; (e) the documents set out in part 3 of the list have been but are no longer in the party’s control.

160 Federal Court Rules 2011 (Cth) rr 20.17 and 20.22; Uniform Civil Procedure Rules 2005 (NSW) r 21.4; Supreme Court Rules (NT) r 29.3(6) (affidavit is not required unless requested by another party); Supreme Court Civil Rules 2006 (SA) r 136(2) and 136(3) (an affidavit is not required); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.04; Supreme Court Rules 2000 (Tas) r 384;Rules of the Supreme Court 1971 (WA) O 26 r 4(1).

15.60 In New South Wales, a list of documents must be certified by the solicitor acting for the party giving discovery.161 The certificate provides that the solicitor has given advice to the party of its obligations arising under an order for discovery, and that the solicitor is not aware of any documents which ought to have been included in the list of documents that have been omitted. Similar rules apply in other jurisdictions.162

161 Uniform Civil Procedure Rules 2005 (NSW) r 21.4(3). 162 For example, Uniform Civil Procedure Rules 1999 (Qld) r 226; Rules of the Supreme Court 1971 (WA) O 26 r 16A.

Treatment of privileged documents

15.61 A party giving discovery is under an obligation to discover (in the strict sense) those documents over which the party makes a claim for privilege.163 That is, the party must disclose in the list of documents the existence of those documents, but will indicate that it is claiming privilege over those documents and the basis for that claim.164 While the party is under an obligation to discover privileged documents, it can withhold those documents from inspection or production.

Page 26 of 126 Chapter 15 Discovery, Interrogation and Inspection 163 Legal professional privilege is covered in Chapter 16; without prejudice privilege in Chapter 17; privilege against selfincrimination in Chapter 18; and public interest immunity in Chapter 19. Other bases for restricting production of discovered documents are considered at 15.197 ff. 164 Federal Court Rules 2011 (Cth) r 20.17; Court Procedures Rules 2006 (ACT) r 608(1)(a)(ii) and 608(1)(b)(ii); Uniform Civil Procedure Rules 2005 (NSW) r 21.3(1)(d); Supreme Court Rules (NT) r 29.4(c); Uniform Civil Procedure Rules 1999 (Qld) r 214(1) (party must state the documents over which privilege is claimed); Supreme Court Civil Rules 2006 (SA) r 136(7); Supreme Court Rules 2000 (Tas) r 384(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.04(d); Rules of the Supreme Court 1971 (WA) O 26 r 4(2).

Inspection and production

15.62 As a general rule, the party to whom the discovery of documents has been given has a right to inspect the documents unless there is a valid objection to inspection.165 The procedure for the inspection or production of discovered documents varies from jurisdiction to jurisdiction: (a) In the Federal Court, a party may apply for an order that the party giving discovery produce those documents (including by electronic means) which it has included in its list of documents.166 The order can be made at the time at which discovery is ordered.

Page 569   (b) In the Australian Capital Territory, a party is required to produce documents it has discovered for inspection if another party to the proceedings issues a notice to produce for those documents.167 (c) In New South Wales, a party may request that the party giving discovery produce for inspection nonprivileged documents which it has discovered and which are in its possession, custody or power.168 Alternatively, the court may make orders for the production of such documents. The documents must be made available within 21 days of the list of documents being served or at another time fixed by an order. The rules also provide for the party giving discovery to have a person available to explain the way in which the documents are arranged and to assist in locating and identifying particular documents or classes of documents.169 If documents are provided for inspection, as opposed to copies being produced, the party giving discovery must provide facilities for inspection or photocopying.170 (d) In the Northern Territory and Victoria, a party on whom an affidavit of documents has been served may, by way of a notice, require the party giving discovery to produce for inspection those documents included in the affidavit.171 Within seven days of receiving the notice, the party giving discovery must serve a notice appointing a time (within seven days) and place for inspection.172 A party to whom documents are produced for inspection may take copies of the documents.173 (e) In Queensland, disclosure takes place by the delivery to the other parties to the proceedings of a list of documents and, if requested by another party, the delivery of copies of the documents disclosed to the requesting party.174 The documents must be delivered within 14 days of being requested to do so.175 If there are a large number of documents, the party producing the documents may notify the other party of a time and place at which it can inspect the documents.176 (f)

In South Australia, the court may make orders for the production of documents for inspection and copying at a time and place specified in the order.177 The court may also make supplementary orders to facilitate copying and inspection, such as by ordering that the party producing the documents provide assistance in locating

Page 570   or identifying certain documents, and make equipment available for the copying of documents.178 As an alternative to inspection, the court may order that a copy or a computer record of documents be provided to the party.179

Page 27 of 126 Chapter 15 Discovery, Interrogation and Inspection (g) In Tasmania, a party giving discovery must allow the other party to inspect and take copies of the documents referred to in the list of documents, on reasonable notice.180 The party giving discovery must also provide copies of the documents given to the other party, if that party’s lawyer gives a written undertaking to pay the reasonable costs associated with copying and delivering the documents.181 (h) In Western Australia, a party that has served a list on another party must also serve a notice stating a time (within seven days after the service of the list) at which the documents mentioned in the list can be inspected by the other party.182 The inspection may take place at the office of the solicitor acting for the person giving discovery.183 A party to whom inspection has been granted may take copies of the documents produced for inspection.184 If a party giving discovery fails to produce documents for inspection, the court may make orders for production.185

165 Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97

.

166 Federal Court Rules 2011 (Cth) r 20.32. 167 Court Procedures Rules 2006 (ACT) r 620(4). 168 Uniform Civil Procedure Rules 2005 (NSW) r 21.5(2). 169 Uniform Civil Procedure Rules 2005 (NSW) r 21.5(2)(b). 170 Uniform Civil Procedure Rules 2005 (NSW) r 21.5(2)(c) and (d). The solicitor for the party seeking inspection of the documents may be required to undertake to pay the reasonable cost of the provision of photocopies or inspection. 171 Supreme Court Rules (NT) r 29.9(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.09(1). 172 Supreme Court Rules (NT) r 29.9(2)–(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.09(2)–(3). 173 Supreme Court Rules (NT) r 29.9(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.09(4). 174 Uniform Civil Procedure Rules 1999 (Qld) r 214(1). 175 Uniform Civil Procedure Rules 1999 (Qld) r 214(3). A party may, however, request to inspect the original version of the documents: r 215. 176 Uniform Civil Procedure Rules 1999 (Qld) r 216. 177 Supreme Court Civil Rules 2006 (SA) r 142(1). 178 Supreme Court Civil Rules 2006 (SA) r 142(2). 179 Supreme Court Civil Rules 2006 (SA) r 142(3). 180 Supreme Court Rules 2000 (Tas) r 390(1)(a). 181 Supreme Court Rules 2000 (Tas) r 390(1)(b). 182 Rules of the Supreme Court 1971 (WA) O 26 r 8(1). 183 Rules of the Supreme Court 1971 (WA) O 26 r 8(4). Rule 8A provides a procedure for the inspection of documents, including how the documents produced for inspection are to be arranged. 184 Rules of the Supreme Court 1971 (WA) O 26 r 8(5). 185 Rules of the Supreme Court 1971 (WA) O 26 r 9.

Redactions

15.63 As a general rule, if a document contains information that is within the scope of a discovery order, the document as a whole must be discovered and made available for inspection.186 However, there may be discoverable documents which contain information that is unrelated to the proceedings. For example, the minutes of a board meeting may record business discussed at the board meeting relating to a variety of matters,only one of which may be relevant to the proceedings. In such a case, a party may wish to provide a redacted or masked copy of the document it has

Page 28 of 126 Chapter 15 Discovery, Interrogation and Inspection discovered, covering those parts of the document which are not relevant. A party may also wish to redact parts of documents that contain privileged information.

186 Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 at [98]

per Logan J.

15.64 It is now a well-established practice in litigation that where a party is ordered to produce material that contains relevant and irrelevant information, it may redact or mask the irrelevant or privileged portions of the document for the purpose of production.187 In some cases though, courts have expressed the view that redactions should only be

Page 571 made by a party with the consent of the other party or by order of the court.188 When redacting, care must be taken not to conceal those parts of the document which may be necessary for context, nor should a document be redacted in such a way as to make it unintelligible.189 The basis of any redaction applied to a document must be apparent to the other party, such as in the affidavit verifying discovery. The court retains the power to consider whether there is a proper basis for the redaction.190

187 GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 at 176 ; Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1982] 2 Qd R 335; Harris Scarfe Ltd (recs and mgrs apptd) (in liq) v Ernst & Young (No 10) (2006) 204 FLR 16; [2006] SASC 325 at [22] 188 MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 at [11]–[20] 189 Menkens v Wintour [2007] 2 Qd R 40; [2006] QSC 342 190 Ehrmann v Ehrmann [1896] 2 Ch 826

per Debelle J.

per Barker J.

.

.

Inadvertent disclosure of privileged documents

15.65 It occasionally happens that a litigant inadvertently discovers or allows another to inspect a document in respect of which the litigant is entitled to assert privilege or some other immunity from disclosure. This may happen, for instance,where a party facilitates inspection of a large volume of disclosable documents and, by oversight, includes amongst those documents some privileged material, in respect of which it has no intention of waiving its right to immunity from inspection. The risk of inadvertent disclosure is increased in large and complex litigation where a number of lawyers may have been involved in reviewing a large pool of documents.191 The law allows a party to correct the inadvertent disclosure of a privileged document provided it acts promptly in bringing the mistake to its opponent’s attention.192 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd ,193 the High Court held that the court could also rely upon its case management powers to make orders for the correction of lists of documents that inadvertently disclosed privileged documents, and to order the return of privileged documents.194 In doing so, it emphasised the importance of avoiding unduly technical arguments about whether privilege had been waived which have the potential to draw out the discovery process.195

191 ISTIL Group Inc v Zahoor [2003] 2 All ER 252 at [72]

per Lawrence Collins J.

Page 29 of 126 Chapter 15 Discovery, Interrogation and Inspection 192 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [49]

per French CJ, Kiefel, Bell, Gageler and Keane JJ.

193 (2013) 250 CLR 303; [2013] HCA 46

.

194 (2013) 250 CLR 303; [2013] HCA 46 at [58]

per French CJ, Kiefel, Bell, Gageler and Keane JJ.

195 For an in-depth discussion about waiver of legal professional privilege, see Chapter 16, 16.97 ff.

Further and particular discovery

15.66 Normally, the discovery process will bring to light all documents that ought to have been discovered. The basic rule is that the affidavit verifying discovery is conclusive.196 Historically, as a sworn document, there was no basis for a court to entertain submissions that the discovery undertaken by the party was inadequate. Such a submission, being unsworn, was not enough to displace the evidence under oath taken by the deponent. But there will be situations where there are grounds to doubt whether the party giving discovery has carried out all the necessary searches or whether all the discoverable documents have been set out in the list of documents. In such situations, more probing may be necessary in order to ensure full compliance with the discovery duty.

Page 572

196 Mulley v Manifold (1959) 103 CLR 341

; Chandler v Water Corporation [2004] WASC 95 at [10]

per Hasluck J.

15.67 One of the manifestations of the court’s untrammelled discretion in relation to discovery is seen in its power to order further and better discovery.197 In effect, such an order requires the party giving discovery to provide more information about the discovery it has undertaken.

197 Federal Court Rules 2011 (Cth) r 20.17(3); Court Procedures Rules 2006 (ACT) r 606(1)(c); Supreme Court Rules (NT) r 29.8; Uniform Civil Procedure Rules 1999 (Qld) r 233; Supreme Court Civil Rules 2006 (SA) r 137(2); Supreme Court Rules 2000 (Tas) r 386; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.08(2);Rules of the Supreme Court 1971 (WA) O 26 r 6. There is no equivalent rule in New South Wales. In the Federal Court, a party may request that a party that has given discovery provide a brief description of the steps it took to conduct a good faith proportionate search to locate discoverable documents, including the records that were searched and, if applicable, electronic search terms that were used: Central Practice Note: National Court Framework and Case Management (CPN-1), [10.10].

15.68 In New South Wales, where there are no specific rules dealing with circumstances in which one party asserts that discovery by another party is inadequate, the court may order the filing of another verified list of documents or grant leave to cross-examine the deponent on the affidavit that verifies the list of documents.198 As a general principle, courts in all jurisdictions are reluctant to allow the cross-examination of deponents of discovery affidavits. This stems from the principle that an affidavit verifying discovery is conclusive.199 As Giles J said in Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd ,200 to allow cross-examination ‘would be to open up the

Page 30 of 126 Chapter 15 Discovery, Interrogation and Inspection prohibited areas of investigation, and nullify the restrictions upon contesting both the amplitude of discovery and any claim for protection from inspection’. However, the position has somewhat shifted to allowing cross-examination in very limited cases and only in relation to the issue of discovery.201 In Proctor & Gamble Australia Pty Ltd v Medical Research Pty Ltd ,202 Hunter J said that the conclusiveness of the affidavit as to discovery could be challenged if it can be shown by the documents discovered, the content of the affidavit, or from the pleadings, that the discovery has been insufficient. In IO Group Inc v Prestige Club Australasia Pty Ltd ,203 cross-examination of the deponent was allowed in circumstances where it was the only effective means of exposing deficiencies in a party’s discovery. In Victoria, cross-examination of a deponent is allowed if there is a reasonable basis for the belief that the party giving discovery may be misinterpreting its discovery obligations, or has failed to disclose discoverable documents.204

198 Ange v Fairfax Media Publications [2010] NSWSC 1200 at [34] 199 Mulley v Manifold (1959) 103 CLR 341 at 343 200 (1990) 20 NSWLR 359 at 363

per Menzies J.

.

201 Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749 202 [2001] NSWSC 183 at [64]

per Garling J.

; Procter v Kalivis [2009] FCA 1518

.

, applied in Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200 at [38]

per Garling J. See also Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 at [33]

per Edelman J.

203 [2008] FCA 1147 at [50] per Flick J. See also Olympic Airways SA v Spiros Alysandratos& Consolidated Travel (Vic) Pty Ltd (Supreme Court of Victoria, Harper J, 26 May 1997, unreported). 204 Civil Procedure Act 2010 (Vic) s 57.

15.69 In addition to ordering further and better discovery, the court may also order further discovery of particular documents or classes of documents.205 It must be stressed

Page 573 that an order for particular discovery does not necessarily extend discovery beyond the scope of ordinary discovery. In the exercise of its discretion, the court may order discovery that is more limited than ordinary discovery, and it may equally stipulate wider discovery. Accordingly, the power to order particular discovery is not so much a power to order discovery that is different from ordinary discovery, as it is a power that enables the court to address special problems that may arise. For example, an order for particular discovery may be made early in defamation proceedings so as to enable a plaintiff to decide whether to accept an offer of amends or persist with the action.206

205 Federal Court Rules 2011 (Cth) r 20.21; Court Procedures Rules 2006 (ACT) r 621(c); Supreme Court Rules (NT) r 29.8; Uniform Civil Procedure Rules 1999 (Qld) r 223(1); Supreme Court Civil Rules 2006 (SA) r 139; Supreme Court Rules 2000 (Tas) r 388; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.08;Rules of the Supreme Court 1971 (WA) O 26 r 8. There is no equivalent rule in New South Wales although the court could make another order for discovery. 206 Rigg v Associated Newspapers Ltd [2003] EWHC 710 (QB); [2003] All ER (D) 97.

15.70

Page 31 of 126 Chapter 15 Discovery, Interrogation and Inspection Orders for particular discovery may be used to force compliance with ordinary discovery. An order for specific discovery may be made, for example, where the court has concluded that the party from whom discovery is sought has failed to comply adequately with its discovery obligations, whether by failing to make reasonable searches, or by suppressing documents, or by failing to facilitate inspection. In some cases, the power will be exercised to order more far-reaching discovery than ordinary discovery. Where a claim involves serious fraud allegations, it may be desirable to order very wide discovery, up to Peruvian Guano level, in order to ensure that all possible investigations are made. Where a party is suspected of questionable practices, it may be desirable to relieve the party’s solicitors of the responsibility of discriminating between significant and insignificant documents, and impose detailed discovery obligations on the party in question.

15.71 A party that applies for discovery of particular documents must convince the court of the necessity of such a step. In the Australian Capital Territory and Western Australia, the court rules require that an application for such discovery must be supported by an affidavit which deposes a belief that the defendant has in its possession, custody or power the particular document or class of documents in respect of which discovery is sought.207 The court must be satisfied that there are reasonable grounds for being ‘fairly certain’ that there are other relevant documents which ought to be discovered.208 The power to order particular discovery is at the discretion of the court, which discretion must be exercised having regard to the overriding objective and, in particular, the need to maintain proportionality.209 The order will not be made if it would be oppressive to the party required to give the discovery.

207 Court Procedures Rules 2006 (ACT) Pt 2.6; Rules of the Supreme Court 1971 (WA) O 26 r 6(6). 208 Beecham Group Ltd v Bristol Myers Co [1979] VR 273 at 279 Burniston [2012] WASC 26 at [27]

per Menhennitt J; Perpetual Trustees Co Ltd v

per Edelman J.

209 Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 at [34]

per Edelman J.

Ongoing duty to discover

15.72 At common law, a party’s duty of discovery continues after the service of a list of documents and the production of documents.210 Accordingly, if a party realises after the giving of discovery that it has omitted a relevant document from its discovery,

Page 574 the party is under an obligation to discover that document. The process is sometimes referred to as ‘supplementary discovery’. Originally, though, the ongoing duty only applied to documents which a party had in its possession as at the date of the list or affidavit of documents.211 It did not apply to documents which came into a party’s possession after the list or affidavit of documents was made, irrespective of whether those documents would have otherwise fallen within the scope of the order for discovery.

210 Mitchell v Darley Main Colliery Co (1884) 1 Cab & El 215 at 216. 211 TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693

.

Page 32 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.73 The common law position has been restated in the court rules of some jurisdictions, subject to some modifications.212 By way of example, in New South Wales, if a party giving discovery becomes aware that it: (a) omitted from its list of documents a discoverable document that was within its possession, custody or power; or (b) made a claim for privilege over a document, which is not privileged or has subsequently has ceased to be privileged, the party must give written notice to the other party and provide the relevant documents for inspection.213 In the Australian Capital Territory, Northern Territory, South Australia, Victoria and Western Australia, supplementary discovery must be given if documents which are within the scope of the order for discovery come into the possession of the party giving discovery after it has given discovery.

212 Federal Court Rules 2011 (Cth) r 20.20; Court Procedures Rules 2006 (ACT) r 611; Uniform Civil Procedure Rules 2005 (NSW) r 21.6; Supreme Court Rules (NT) r 29.15;Uniform Civil Procedure Rules 1999 (Qld) r 211(2); Supreme Court Civil Rules 2006 (SA) r 136(3); Supreme Court Rules 2000 (Tas) r 382(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.15; Rules of the Supreme Court 1971 (WA) O 26 r 2. 213 Uniform Civil Procedure Rules 2005 (NSW) r 21.6.

Default in compliance

15.74 A default in discovery obligations may take several forms. First, the party giving discovery may fail to comply with a court-ordered deadline by which to give discovery, having the potential to delay the progression of the proceedings. Defaults of this nature may be handled by the court’s case management powers, which are discussed at length in Chapter 11. Secondly, a party may be in default by not carrying out a reasonable search for documents that are discoverable. Thirdly, a party may be in default by concealing or destroying documents (whether intentionally or unintentionally) which are unfavourable to its case. In each instance, the default by the party has the potential to prejudice the court’s ability to dispose of the case fairly.

15.75 The court has at its disposal a range of powers to require a party to comply with its discovery obligations. One such measure, as discussed above, is the power to order further and particular discovery.214 Another measure is provided in the rules of the Australian Capital Territory, Queensland and Tasmania, which prevent a party from tendering a document at trial, unless the court grants leave, if that document

Page 575 ought to have been disclosed in discovery.215 In extreme cases, the party in default may be committed for contempt of court, especially if the default has involved that party making a false affidavit.216 The power to commit for contempt is rarely used in relation to discovery given that other measures are more effective for the party affected by the default.

214 See 15.66 ff.

Page 33 of 126 Chapter 15 Discovery, Interrogation and Inspection 215 Court Procedures Rules 2006 (ACT); Uniform Civil Procedure Rules 1999 (Qld) r 225; Supreme Court Rules 2000 (Tas) r 396. 216 See Chapter 24, 24.73 ff in relation to contempt.

15.76 For serious defaults, a court may strike out the pleadings or originating process of the party in default, or give judgment in favour of the other party.217 Accordingly, a plaintiff that is in default of its discovery obligations is liable to have its case dismissed, and any defence to a cross-claim struck out. Similarly, a defendant that is in breach of its discovery obligations may have its defence struck out and cross-claim dismissed. The decision whether to strike out pleadings, dismiss proceedings or give judgment is at the discretion of the court.218 Typically, these powers are exercised as a last resort,219 but the court must have regard to the overriding objective.220 In situations where the default is the failure to comply with a deadline, the party in default typically will have been warned prior to the making of any orders.221 This may take the form of a selfexecuting order (or ‘unless’ order).222

217 Federal Court Rules 2011 (Cth) r 5.23(2); Court Procedures Rules 2006 (ACT) r 671; Uniform Civil Procedure Rules 2005 (NSW) r 23.9(6); Supreme Court Rules (NT) r 24.02(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 225(2); Supreme Court Rules 2000 (Tas) r 372; Civil Procedure Act 2010 (Vic) s 56(2)(j) and Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.02(1)(b); Rules of the Supreme Court 1971 (WA) O 26 r 15(1). 218 See Chapter 11 in relation to principles guiding the court’s discretion. 219 Twycroft v Grant [1875] Eng WN 201; Haigh v Haigh (1885) 31 Ch D 478 Cassar [2009] NSWCA 230 at [52] 220 Dai v Zhu [2013] NSWCA 412 at [84]

; Hans Pet Construction Pty Ltd v

per Young JA. per Sackville AJA.

221 Rule 29.12(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) sets out a procedure for dismissal where a party has defaulted in its discovery obligation and has failed to comply with a notice that an order for dismissal will be sought. 222 See Chapter 11, 11.44 ff.

Destruction of documents

15.77 Unlike the United States, there is no tort of spoliation in Australian law that applies to the destruction of documents that are relevant to court proceedings.223 However, the Australian courts may strike out a pleading of a party who destroys documents which it ought to have anticipated would need to be discovered in proceedings. This issue was explored in British American Tobacco v Cowell .224 The plaintiff, a smoker, sued the defendant, a tobacco company, in negligence in respect of lung cancer she had contracted which she alleged was the result of smoking cigarettes

Page 576 manufactured by the defendant. Following discovery,it was revealed that the defendant had destroyed thousands of documents prior to the proceedings being brought which the plaintiff asserted would have, among other things, demonstrated that the defendant was aware of the harmful effects of tobacco. These documents had been discovered in earlier litigation in Australia. Following the conclusion of that earlier litigation, the defendant reverted to its document retention policy under which the relevant documents were destroyed. The court accepted that the defendant was aware, at the time of destroying the documents, that there would likely be additional claims brought by smokers. At first instance, Eames J found that the process of discovery had been subverted by the defendant and its solicitors with the ‘deliberate intention of denying a fair trial to the plaintiff ’ by the implementation of the document retention policy.225 His Honour struck out the defence of the defendant and gave judgment in favour of the plaintiff.

Page 34 of 126 Chapter 15 Discovery, Interrogation and Inspection

223 British American Tobacco Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 . See West v Goodyear Tire & Rubber Co 167 F 3d 776, 779 (2nd Cir 1999); Kronisch v United States 150 F 3d 112, 126 (2nd Cir 1998). The destruction of documents may constitute an abuse of process or a criminal offence (see, for example, Crimes Act 1900 (NSW) s 317; Criminal Code (NT) s 102; Crimes Act 1958 (Vic) s 254 (introduced under the Crimes (Document Destruction) Act 2006(Vic)). 224 (2002) 7 VR 524; [2002] VSCA 197

.

225 McCabe v British American Tobacco [2002] VSC 73

.

15.78 On appeal, the Victorian Court of Appeal held that a court may strike out a pleading where a party destroyed documents in an attempt to pervert the course of justice.226 However, the strike-out ordered by Eames J was overruled as no findings were made about whether the defendant’s conduct amounted to an attempt to pervert the course of justice. In any event, the court held that the purpose of the strike-out power is not to punish a party for its default, but to minimise the prejudice suffered by the other party as a result of the default.227 The court found that the prejudice suffered by the plaintiff in this case was minimal given that much of the information (which included research) was in the public domain and, in any event, the plaintiff was not in breach of any obligation not to destroy documents before litigation.228 The strike-out was therefore out of all proportion as it had the effect of the defendant being taken to have admitted all of the allegations (except for damages), such that the plaintiff ’s claim was not put to proof.

226 (2002) 7 VR 524; [2002] VSCA 197 at [175]

.

227 (2002) 7 VR 524; [2002] VSCA 197 at [178]

.

228 (2002) 7 VR 524; [2002] VSCA 197 at [183]

.

15.79 Central to the exercise of the court’s discretion is the need to ensure that the party affected by the default is not at a disadvantage as a result of the default. In Palavi v Radio 2UE Sydney Pty Ltd ,229 the plaintiff deliberately disposed of a mobile phone to avoid having to discover it. The defendant sought discovery of the phone to answer certain allegations of defamatory conduct made in the statement of claim. As a result of the plaintiff’s default, the parts of the statement of claim for which discovery of the phone was sought were struck out. Allsop P found that while the defendant may still have been able to run its defence without the phone, the plaintiff ’s conduct created a‘not insignificant risk’ to the ability of the defendant to successfully propound its defence.230

229 [2011] NSWCA 264

.

230 [2011] NSWCA 264 at [95]

(Macfarlane JA agreeing).

Page 35 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.80 A less drastic step that may be taken by the court is to draw an inference that the documents that ought to have been discovered would not have assisted the party

Page 577 that was under an obligation to discover them.231 This is especially the case where there is evidence of a clear ‘conscious destruction of material’ which would likely have been used in evidence.232

231 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 NSWLR 640; [2002] NSWSC 673 at [102]

; Clark v State of New South Wales (2006)

per Johnson J.

232 Clark v State of New South Wales (2006) NSWLR 640; [2002] NSWSC 673 at [102]

per Johnson J.

Impugning a judgment for default in discovery

15.81 Where it is discovered after judgment that the successful party failed to comply with its discovery obligations, the court may, in certain circumstances, order a new trial. In Commonwealth Bank of Australia v Quade ,233 the High Court held that whether a new trial was warranted depended upon the court’s assessment of ‘what will best serve the interests of justice’ either in the particular case or to the administration of justice generally.This will be determined on a case-by-case basis although the court must take into account, among other things, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party, and the extent of any likelihood that the result would have been different had the successful party complied with its discovery obligations. The court went on to note:234 While it is not necessary that the appellate court be persuaded in such a case that it is ‘almost certain’ or ‘reasonably clear’ that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.

233 (1991) 178 CLR 134

.

234 (1991) 178 CLR 134 at 143

per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

15.82 In Zafiriou v Saint-Gobain ,235 an unsuccessful plaintiff was granted a new trial after his solicitor came into possession of documents after judgment which the defendant ought to have discovered but failed to do so. Osborn JA determined that the documents ought to be treated as ‘potentially having the evidentiary significance and weight’ most favourable to the plaintiff’s case.236 The documents raised questions about the credit of the defendant’s witnesses which raised a real possibility that the plaintiff would have succeeded if discovery was properly made at first instance, thus providing the basis for a new trial.237

Page 36 of 126 Chapter 15 Discovery, Interrogation and Inspection

235 [2014] VSCA 331

.

236 [2014] VSCA 331 at [74]

.

237 [2014] VSCA 331 at [75]

.

Lawyers’ duties

15.83 Both solicitors and barristers bear a heavy responsibility to ensure that their clients fully comply with their obligations for discovery. They must make their clients appreciate from the start their obligation to make full and honest discovery,to avoid suppressing documents, and to preserve documents from loss or destruction.238

Page 578 Typically, the process of discovery will be undertaken under the supervision of a solicitor acting for the party. The solicitor is under an obligation to undertake appropriate searches and make inquiries necessary for the client to fulfil its discovery obligations.239 Where a solicitor becomes aware that a client refuses to comply with its discovery duties, he or she may be duty bound to cease acting.240 It is not enough for a solicitor to rely upon the fact that the client has signed an affidavit verifying its discovery, if the solicitor is aware that the list is imperfect.

238 Woods v Martins Bank Ltd [1959] 1 QB 55

; [1958] 3 All ER 166

(Concessionaires) Ltd [1968]2 All ER 89; [1968] 1 WLR 693 Civil Procedure Act 2010 (Vic) s 26.

; Rockwell Machine Tool Co Ltd v E P Barrus

; Infabrics Ltd v Jaytex Ltd [1985] FSR 75. See also

239 Preston v Harbour Pacific Underwriting Management Pty Ltd [2008] NSWCA 216 at [41] 240 Myers v Elman [1940] AC 282

per Handley AJA.

(HL) at 322 per Lord Wright.

15.84 The duties of lawyers in relation to discovery are further reflected in the professional conduct rules. For example, r 20.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that a solicitor whose client informs the solicitor that he or she intends to disobey a court order must advise the client against that course and advise the client of the dangers of doing so. The solicitor must not advise the client how to conceal a breach of a court order.Furthermore, if a solicitor learns that a client has: (a) lied in a material particular to the court, or has procured another person to lie to the court;241 or (b) suppressed, or procured another person to suppress, material evidence upon a topic where there was a positive duty to make disclosure to the court, the solicitor must advise the client that the court should be informed of the lie or suppression, and must refuse to take any further part in the proceedings unless the client authorises the solicitor to inform the court of the lie or falsification.242 Similar rules apply in respect of barristers.243

241 This could extend to affidavits verifying a list of documents. 242 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 20.1.

Page 37 of 126 Chapter 15 Discovery, Interrogation and Inspection 243 Legal Profession Uniform Law Conduct (Barristers) Rules 2015 rr 79 and 81. See also Vernon v Bosley (No 2) [1997] 1 All ER 614 at 631

per Stuart-Smith LJ.

Electronic discovery

15.85 Electronic discovery (or ‘e-discovery’) refers to the discovery of electronically stored information (or ‘ESI’). A distinctive feature of electronic discovery is the production of discovery lists and discoverable documents in electronic format, complete with metadata about each document. In his review of civil litigation costs, Lord Justice Jackson described electronic discovery as presenting the civil justice system with an ‘acute dilemma’.244 On the upside is the fact an ever-increasing amount of information is permanently stored and retrievable, which in turn increases the likelihood of establishing the truth. This is not limited to the extent and quality of the information that assists in determining the truth, but also the sophisticated platforms that are available to litigants and the court to search and sort through masses of material. On the downside, though, is the cost and time associated with the collection, processing and review of voluminous information. Furthermore, while it may appear

Page 579 that the availability of more information may assist the parties and the court alike, beyond a certain point any further material is likely to lead to an information overload. The more information that the court and the parties receive, the more difficult it will be to process the information and integrate it into a coherent set of conclusions.

244 Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report, The Stationery Office, 2009, p 373.

15.86 In Australian Rugby Union Ltd v Canterbury International (Australia) Pty Ltd (No 1) ,245 Perram J summarised the issues surrounding disclosure of electronic documents as follows: [T]he near ubiquity of electronically stored data and documents has now transformed the process of discovery away from anything even vaguely analogous to the issues confronting Chancery lawyers in the nineteenth century. That transformation has been both positive and negative. It is positive because a large quantity of significant communications now take place in media which are permanent. Unguarded views are often expressed in emails, SMS or through instant messaging platforms which in earlier more languid times were reserved for a quiet word between courses at lunch. Consequently, the rise of computerised communications and with them discovery thereof has been apt, in some cases, to ensure that there are now more ‘smoking guns’than there have been in the past.

245 [2012] FCA 497 at [5]–[6] . See also K M Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92 Australian Law Journal 32 at 35.

15.87 The challenges of electronic discovery are not limited to the size or volume of the documents. The disclosure of ESI has given rise to at least three issues which had not existed (or at least not at the same magnitude) with

Page 38 of 126 Chapter 15 Discovery, Interrogation and Inspection conventional discovery of hard-copy documents. First, ESI provides information about documents which did not exist in hard-copy discovery. Electronic files often contain metadata — that is, data about data. This data may include information about the format of a file,when the file was created, modified, printed or viewed, and by whom.246 The metadata itself may be relevant to the litigation. For example, it may assist in a case where the time of the creation of a particular document and by whom is in issue. Previously that information would need to be elicited from the face of the document or from witnesses. For this reason, metadata may be a valuable source of information. However, it is also susceptible to manipulation either intentionally or inadvertently (such as the way it is handled in the course of collection for the purpose of discovery).

246 P Matthews and H M Malek, Disclosure, 3rd ed, Sweet & Maxwell, London, 2012, p 209.

15.88 A second challenge in electronic discovery, as observed by Perram J in Canterbury, is that it is common for a document to exist in duplicates. For example, when one person sends a file to another person via email, both parties will each have a copy of the email itself and the attached file. Copies may also exist because a document has been backed up to different storage locations or because the author has saved multiple drafts of a document. To a large extent, duplicates can be managed through a de-duplication process which automatically removes duplicates from the pool of documents to be reviewed for the purpose of discovery. Courts have increasingly recognised the utility of such processes. In West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc ,247 an adverse costs order for costs wasted was made against a party that failed to properly implement a deduplication process to its documents during discovery.

Page 580

247 [2012] EWHC 396 (TCC).

15.89 The third challenge of electronic discovery is that the courts and parties have had to contend with the intricacies in the way electronic data is stored by a party. In the oft-cited decision of Zubulake v UBS Warburg LLC,248 Judge Scheindlin of the United States District Court explained the various means by which data can be stored. At one end is ‘active online data’ which is normally stored at the ‘very active stage’ of the ‘electronic records’ life’ where it will be accessed by a computer program to be created and modified relatively frequently.249 Such files can be easily retrieved. At the other end is ‘erased, fragmented or damaged data’ where data becomes ‘broken-up and randomly placed’ throughout a storage device following deletions of files. A significant amount of processing is required to obtain access to such data. A relatively new storage medium is the ‘cloud’ in which a party’s documents may be stored on storage devices managed by third parties. The diversity of storage mediums for, and protocols regarding the management of, ESI has implications for the quality of ESI when it is retrieved and to the initial planning of the discovery process.

248 217 FRD 219 (2003) (SDNY). 249 217 FRD 219 (2003) (SDNY) 22.

Procedures

Page 39 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.90 Practice notes in most jurisdictions provide guidance on the use of electronic discovery and the use of technology in proceedings generally.250 For example, in New South Wales, Practice Note No SC Gen 7: Use of Technology provides that where parties have discoverable ESI, efficiency dictates that discovery and production should take place electronically rather than in hard copy.251 As the use of technology introduces the issue of compatibility and interoperability, the practice notes of most jurisdictions require that electronic discovery take place in accordance with an electronic exchange protocol. Typically, the protocol will need to be agreed between the parties early in the discovery process, and may be based on a pro-forma which is included in the applicable practice note. This requires cooperation between the parties and their lawyers. The protocols should address matters such as:252 •

the file format of documents that will be produced electronically, including whether documents will be produced in PDF or their native format(s);

Page 581   •

the fields of metadata that will be exchanged with the documents. This may include the author of the document, the date and title of the document, and document type (for example, agreement, memorandum and email). In relation to emails, the fields of information may include the details of the senders and the recipients of the emails; and

•

the document numbering system that will be used for the purposes of identifying documents.

250 Federal Court of Australia: Technology and the Court Practice Note (GPN-TECH); NSW: Practice Note SC Gen 7: Supreme Court — Use of Technology and Practice Note SC Eq 3: Supreme Court Equity Division — Commercial List and Technology and Construction List; NT: Supreme Court of Northern Territory Practice Direction No 2 of 2002: Guidelines for the Use of Information Technology in any Civil Matter; Qld: Supreme Court of Queensland Practice Direction No 10 of 2011: Use of Technology for the Efficient Management of Documents in Litigation; SA: Supreme Court Civil Supplementary Rules 2014 (SA) rr 107–136; Supreme Court Practice Directions 2006 (SA), Practice Direction 2.1: Guidelines for the Use of Electronic Technology; Vic: Supreme Court of Victoria Practice Note No 1 of 2007: Guidelines for the Use of Technology in any Civil Matter; WA: Supreme Court of Western Australia Consolidated Practice Directions 2009, Practice Direction 1.2.5: The Use of Electronical Material in Trials and Appeals. 251 Practice Note No SC Gen 7: Use of Technology (July 2008), [10]. 252 By way of example, see Supreme Court of New South Wales Practice Note SC Gen 7: Use of Technology, [16].

15.91 The Electronic Discovery Reference Model (EDRM) is a model of e-discovery commonly utilised by practitioners when carrying out discovery electronically. It sets out steps which are to be undertaken in storing ESI in anticipation of litigation,identifying and collecting material which may be potentially relevant to a matter, culling irrelevant documents, the process of analysis and review and, finally, the production of the discovered material.253 A common method of reducing large pools of documents in electronic discovery is the use of keyword searching, which is used to extract from a dataset those documents that may be potentially within the scope of the discovery.

253 For further discussion as to the EDRM, see Sir Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report, The Stationery Office, 2008, pp 377–9.

Consultation

Page 40 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.92 The Sedona Conference Cooperation Proclamation254 encourages early cooperation between lawyers in agreeing on e-discovery protocols. The consequences of a lack of cooperation were illustrated in Digicel (St Lucia) Ltd v Cable & Wireless plc.255 In providing standard discovery the defendants searched the email accounts of 85 persons using keywords suggested by their lawyers without consulting the claimants. The operation consumed 6700 hours of lawyers’ time and cost some £2.17 million. Morgan J was highly critical of the fact that neither side paid attention to a court practice direction which requires that keyword searches should be agreed between the parties. His Lordship criticised the defendants’ failure to attempt to agree the keywords with the claimants in advance. Their unilateral decisions were subsequently challenged by the claimant. The court ordered that additional keyword searches be applied by the defendants and that the solicitors of the claimants and defendants meet to consider a review of documents kept on back-up tapes which the defendants had not searched because they had taken the view that it was unreasonable to do so. This case serves as a reminder of the additional costs and delays that may arise where parties do not cooperate prior to commencing the discovery process.

254 Sedona Conference Cooperation Proclamation (July 2008). 255 Digicel (St Lucia) Ltd v Cable & Wireless plc [2008] EWHC 2522 (Ch)

.

Artificial intelligence and technology assisted review

15.93 In large litigation, the pool of potentially discoverable documents may be overwhelming. To tackle the proliferation of electronic documents which a party may be required to review, courts have shown an increasing acceptance of predictive coding or technology assisted review (‘TAR’). In general terms, TAR involves the use of a software

Page 582 platform to conduct an automated review of a large set of documents in an electronic database for the purpose of determining whether each document is discoverable. The platform may also be used to identify documents which may be the subject of a claim for privilege. The feature of TAR that distinguishes it from other forms of discovery is that a computer program, rather than a human,reviews the bulk of the documents and produces the list of documents. To achieve this, the program needs to be ‘trained’. The training process takes place by a person familiar with the scope of discovery (such as a lawyer) reviewing a relatively small but representative sample set of documents and deciding whether or not each of the documents in that sample is relevant to the discovery. These decisions are then extrapolated by the program across the dataset. The program may then present subsequent datasets that may be reviewed by the lawyer in order to further refine (that is, to ‘teach’) the process of extrapolation.256 The use of TAR can significantly reduce the time and cost associated with discovery.

256 See Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch) the technical aspects of TAR.

, which provides further information about

15.94 TAR presents a novel challenge to the law of discovery. The deponent making the affidavit to verify the discovery is relying upon decisions made by a computer program rather than human reviewers from whom the deponent can seek assurances that a reasonable search was conducted. Nonetheless, courts have embraced this form of

Page 41 of 126 Chapter 15 Discovery, Interrogation and Inspection discovery in the interests of ensuring that the cost and time associated with the discovery process is not disproportionate.257 In Pyrrho Investments Ltd v MWB Pty Ltd ,258 a case in which it was predicted that over three million documents would need to be considered for discovery, the English High Court endorsed the use of TAR. Master Mathews found that there was no evidence to show that that the predicted coding software used in that case would lead to less accurate discovery being given than by manual review or keyword searches.259 In Australia, TAR was first considered by the Supreme Court of Victoria in McConnell Dowell (Aust) Pty Ltd v Santam Ltd .260 In that case, the court endorsed the use of TAR in reviewing some 1.4 million documents for discovery. Vickery J acknowledged that a manual review would take over 23,000 hours to complete at a ‘massive cost and expense’.261

257 Irish Bank Resolution Corporation Ltd v Quinn [2015] IEHC 175; Rio Tinto v Vale 14 Civ 3042 (RMP) (AJP) (2 March 2015). 258 [2016] EWHC 256 (Ch)

.

259 [2016] EWHC 256 (Ch) at [33] 260 [2016] VSC 734

; see also Brown v BCA Trading Ltd [2016] EWHC 1464 (Ch)

.

.

261 [2016] VSC 734 at [5]

.

Interrogatories

15.95 Interrogatories are written questions asked by one party in the proceedings to another, and which the other party is under an obligation to answer — typically under oath.262 Interrogatories may be asked to obtain information from another party about material facts in issue.263 As with discovery, interrogatories are aimed at overcoming

Page 583 an information imbalance between the parties. They may be particularly useful where a fact in issue is unlikely to be recorded in a document, such that discovery of documents may not assist. In theory, if not in practice, interrogatories can assist in limiting the scope of a discovery by narrowing the issues in dispute. For example, it may be more efficient for a party to give an answer to a factual inquiry instead of having to discover a mass of documents in relation to that issue. As the answers to interrogatories may be tendered into evidence by the interrogating party, they are in practice often used to elicit admissions by the party being interrogated.

262 In South Australia, interrogatories are referred to as pre-trial examination by written questions. 263 Herald & Weekly Times Ltd v Hawke & Kornhauser [1984] VR 587 at 592

.

Leave and utility

15.96 The rules of each jurisdiction provide for the use of interrogatories.264 In the Federal Court, New South Wales, Queensland, South Australia and Western Australia, a party must obtain leave or an order of the court in order to issue interrogatories.265 In the Australian Capital Territory, Northern Territory, Tasmania and Victoria, leave to deliver interrogatories is generally not required if the proceedings have been commenced by a writ.266 However, there are exceptions to this general rule. For instance, in the Commercial Court of the Supreme Court of Victoria, interrogatories are not permitted other than in exceptional circumstances and only with the leave of the List Judge.267 Leave is also required where pleadings are not closed.268

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264 Federal Court Rules 2011 (Cth) r 21.01; Court Procedures Rules 2006 (ACT) r 632; Uniform Civil Procedure Rules 2005 (NSW) r 22.2; Supreme Court Rules (NT) r 30.1; Uniform Civil Procedure Rules 1999 (Qld) Ch 7 Pt 1 Div 2; Supreme Court Civil Rules 2006 (SA) r 150; Supreme Court Rules 2000 (Tas) r 405; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.01; Rules of the Supreme Court 1971 (WA) O 27 r 1. 265 Federal Court Rules 2011 (Cth) r 21.01(2); Uniform Civil Procedure Rules 2005 (NSW) r 22.1(2); Uniform Civil Procedure Rules 1999 (Qld) r 230(2); Supreme Court Civil Rules 2006 (SA) r 150(2)(b); Rules of the Supreme Court 1971 (WA) O 27 r 1(1). 266 Court Procedures Rules 2006 (ACT) r 630(1); Supreme Court Rules (NT) r 30.2(2); Supreme Court Rules 2000 (Tas) r 405; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.02(2). 267 Supreme Court of Victoria, Commercial Court, Practice Note No 10 (2011), [12.8]. 268 Court Procedures Rules 2006 (ACT) r 630(4); Supreme Court Rules (NT) r 30.2(2); Supreme Court (General Civil Procedure) Rules 2015(Vic) r 30.02(2).

15.97 An application for leave will invariably require a supporting affidavit explaining the need for the interrogatories and, often, with a draft set of interrogatories at hand. The party seeking to deliver interrogatories must establish that there is utility in the administering of interrogatories in the proceedings and that the utility is reasonably proportionate to the effort which must be expended by the party in answering the questions.269 In New South Wales, r 22.1(4) of the Uniform Civil Procedure Rules 2005 (NSW) provides that an order for interrogatories must not be made unless it is necessary at the time it is made. In Tasmania, leave may be required where the interrogated party gives written notice to the party attempting to administer interrogatories that interrogatories will not be answered without leave of the court.270

Page 584

269 Australian Competition and Consumer Commission v ANZ Banking Group Ltd [2010] FCA 230 at [94] Greenwood J.

per

270 Supreme Court Rules 2000 (Tas) r 408A.

15.98 Increasingly, the utility of interrogatories has come under considerable judicial scrutiny and there is a growing reluctance to grant leave. In Dalecoast Pty Ltd v Monisse ,271 Owen J acknowledged that the benefit of interrogatories has diminished, given that parties in modern litigation often exchange pre-trial witness statements or affidavits. Accordingly, unlike the old system of litigation, in which there was a greater reliance on viva voce evidence, parties have a far better understanding of the case they need to meet before going to trial. Greenwood J observed in Australian Competition and Consumer Commission v ANZ Banking Group Ltd :272 Leaving aside the question of interrogatories directed to economic loss … which in any event, is invariably the subject of an expert’s report, interrogatories in my experience in the conduct of commercial litigation over approximately 30 years have rarely resulted in a party tendering an answer. More rarely has such an answer shortened the trial or reduced costs and even more rarely has the answer proved to be decisive on any central question of fact or issue in the litigation …[However, properly] formulated interrogatories directed to assertions of fact or perhaps facts from which inferences might be drawn about a pleaded fact in issue which elicit admissions, may possibly have the benefit of narrowing the issues …, although

Page 43 of 126 Chapter 15 Discovery, Interrogation and Inspection that advantage may be more theoretical than real.

271 [1999] WASCA 103 at [5]–[6] 272 [2010] FCA 230 at [14]

.

.

15.99 Whether leave is granted, to a large extent, will be determined by the particular questions that the party seeking to administer interrogatories proposes to ask. In respect of each question asked, the court will consider whether it concerns a fact in issue which arises out of the pleadings.273 Generally, interrogatories will not be permitted merely because they relate to matters arising out of the written evidence of the parties. Despite the relevance of the question, the court may refuse leave where the benefit of the answer is overborne by the trouble or expense of obtaining it.274 The court is unlikely to grant leave for interrogatories to be administered that will be subject to a sustainable objection by the interrogated party.275

273 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 Banking Group Ltd [2010] FCA 230 at [91]

; Australian Competition and Consumer Commission v ANZ

per Greenwood J.

274 Green v Green (1912) 13 SR(NSW) 126 at 133 per Simpson J. 275 See 15.104 ff.

15.100 With the exception of Tasmania (where there is no express rule), leave will be required in all jurisdictions where a party wishes to deliver further interrogatories.276 The desire to issue additional interrogatories may arise out of the answers delivered by a party in response to previous interrogatories, or developments in the proceedings such as the raising of new allegations in the pleadings. Fairness may dictate that, in these circumstances, leave ought to be given. However, the court must also consider the impact of granting leave on the conduct of the proceedings, including whether it may cause unjustifiable delay.277

Page 585

276 Court Procedures Rules 2006 (ACT) r 632(1)(d); Supreme Court Rules (NT) r 30.2(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.02(4). In relation to the other jurisdictions, the requirement for leave is derived from the rules that require leave for the delivery of interrogatories generally. 277 Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 at [18]–[20]

per Rothman J.

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15.101 The rules of the court may impose certain additional limitations on interrogatories. For instance, in Queensland, the rules limit the number of questions that may be asked in interrogatories to 30 questions, unless the court allows a greater number.278 In New South Wales, unless there are special reasons, interrogatories will not be ordered in cases concerning a claim for damages arising out of the death of, or bodily injury to, any person, or a claim for contribution in relation to damages so arising.279

278 Uniform Civil Procedure Rules 1999 (Qld) r 229(2). 279 Uniform Civil Procedure Rules 2005 (NSW) r 22.1(3).

Relevance

15.102 Interrogatories must be relevant to material facts in issue in the proceedings.280 Typically, these will be facts that arise out of the pleadings, where there are pleadings in the proceedings, or the relief being claimed in the proceedings. That is, the answers sought must enable the person seeking to deliver the interrogatories to support its case or to weaken the case put against it.281 In proceedings in which there are pleadings, a close examination of the pleadings is required to determine whether interrogatories are relevant.282 For this reason, it is not uncommon for lawyers drafting interrogatories to frame questions by express reference to passages in the pleadings. A party may also interrogate in relation to facts the existence or non-existence of which is relevant to the existence or nonexistence of the facts directly in issue.283 It is also permissible for interrogatories to seek further and better particulars in relation to a matter raised in the pleadings.284

280 Buxton & Lysaught Pty Ltd v Buxton [1977] NSWLR 285; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 at [25] per Mansfield J. This principle is included in the rules of some jurisdictions,for example, Uniform Civil Procedure Rules 2005 (NSW) r 22.2(a). 281 Adams v Dickeson [1974] VR 77 at 79

; Schutt v Queenan [2000] NSWCA 341 at [11]–[15]

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 at [25] 282 Ring-Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] 1 NSWLR 798 at 800 283 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 392 v ANZ Banking Group Ltd [2010] FCA 230 at [97]

per Mason P;

per Mansfield J. .

; Australian Competition and Consumer Commission

per Greenwood J.

284 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 190–1

per Lockhart J.

15.103 Interrogatories must not be directed at attempting to identify the names of witnesses that will be called by the interrogated party.285 This is unless the identity of a witness is material to a fact in issue in the proceedings. Similarly, interrogatories must not be delivered for the purpose of obtaining information to undermine the credibility of a witness.286

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285 Perpetual Trustees of Australia Ltd v Brenton (1985) 35 NTR 44 Tasmania:Supreme Court Rules 2000 (Tas) r 406(4)(b). 286 Tiver v Tiver [1969] SASR 40

. Such questions are not permitted in

.

Objections

15.104 An interrogated party may object to answering interrogatories on certain grounds. Some of the grounds of objection are similar to those grounds which apply to discovery and other forms of disclosure in proceedings, such as subpoenas. Over time,the common law has recognised numerous grounds of objection, which grounds have

Page 586 now been limited by the modern rules of procedure. For instance, in New South Wales, a party may only object to an order for interrogatories on the following grounds:287 (a)

the interrogatory does not relate to any matter in issue between that party and the party seeking the order;

(b)

the interrogatory is vexatious or oppressive; or

(c)

the answer to the interrogatory could disclose privileged information.

In those jurisdictions in which leave of the court is required, it is more efficient for the prospective interrogated party to raise any objections at the time that the court is considering the issue of leave, rather than to wait until after interrogatories have been delivered.288 Nonetheless, an interrogated party is not precluded from making objections to interrogatories despite the court having granted leave,289 although it is unlikely that the court would entertain objections based on matters which have already been considered in determining whether leave ought to be granted.

287 Uniform Civil Procedure Rules 2005 (NSW) r 22.2. 288 Bailey v Director-General, Dept of Land and Water Conservation [2009] NSWCA 100 at [111] 289 Peek v Ray [1894] 3 Ch 282

per Tobias JA.

.

Privilege

15.105 The interrogated party may object to any questions which call for an answer that would disclose information that is subject to privilege.290 Privileges are dealt with below and in subsequent chapters of this book.291

290 Federal Court Rules 2011 (Cth) r 21.03(4)(c); Court Procedures Rules 2006 (ACT) r 631(1)(e)–(f); Uniform Civil Procedure Rules 2005 (NSW) r 22.2(c); Supreme Court Rules (NT) r 30.7(e) ; Uniform Civil Procedure Rules 1999 (Qld) r 233(2); Supreme Court Civil Rules 2006 (SA) r 151(4); Supreme Court Rules 2000 (Tas) r 409(1)(b) and 409(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.07(e); Rules of the Supreme Court 1971 (WA) O 27 r 4. 291 See 15.197 ff; Chapter 16 in relation to legal professional privilege; Chapter 17 in relation to without prejudice privilege; Chapter 18 in relation to the privilege against self-incrimination; and Chapter 19 in relation to public interest immunity.

Page 46 of 126 Chapter 15 Discovery, Interrogation and Inspection

Fishing expedition

15.106 Much like other forms of interlocutory disclosure, interrogatories must not be used for the purpose of ‘fishing’. This occurs when a plaintiff wishes to interrogate the defendant in order to identify a cause or causes of action of which the plaintiff does not have present knowledge. A party is ‘fishing’ where it has no evidence that a particular kind of fish is in a pool (to adopt the metaphor), and wishes to be ‘at liberty to drag it to find out if there are any there or not’.292 In Hennessy v Wright (No 2) ,293 Lord Esher MR said: The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at

Page 587 present he knows nothing, and which will be a different case from that which he now makes, the rule against ‘fishing’ interrogatories applies.

292 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 2 per Owen J. 293 (1888) 24 QBD 445

.

15.107 The principle prevents a party from interrogating on a suspicion,294 or converting a speculative claim into something more substantial.295 No objection for fishing arises where the interrogatory is directed at obtaining information about a matter raised in the pleadings.296 In jurisdictions with limited grounds of objection to interrogatories, a party may object to fishing on the basis of a lack of relevance.297

294 Minister for Immigration & Multicultural Affairs v Wong [2002] FCAFC 327 at [32] Quasar Resources Pty Ltd [2012] FCA 290 at [31]

; Alliance Craton Explorer Pty Ltd v

per Mansfield J.

295 Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795 at [9]

per McKerracher J.

296 Sharpe v Smail (1975) 5 ALR 377 (HCA). 297 Federal Court Rules 2011 (Cth) r 21.03(4)(a); Court Procedures Rules 2006 (ACT) r 631(1)(d); Uniform Civil Procedure Rules 2005 (NSW) r 22.2(a); Supreme Court Rules (NT) r 30.7(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 233(1)(a); Supreme Court Civil Rules 2006 (SA) r 151(1)(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.07(1)(a); Rules of the Supreme Court 1971 (WA) O 27 r 1(5)(a).

Oppressive or vexatious

15.108

Page 47 of 126 Chapter 15 Discovery, Interrogation and Inspection An interrogated party may object to interrogatories that are oppressive or vexatious.298 In Aspar Autobarn Coordinator Society v Dovala Pty Ltd ,299 Woodward J defined oppressive to mean ‘unfair, or unreasonable, in the sense that a good deal too much is expected of the party questioned’. Oppressiveness may take different forms. For example, interrogatories will be oppressive where the time and effort to answer interrogatories is disproportionate to the benefit to be obtained by the interrogatories. In American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) ,300 Myers J set out a number of factors that a court would take into account in determining whether interrogatories were oppressive: (a) the number of questions asked; (b) the extent to which answering the questions imposes a ‘unreasonably onerous burden’ on the party being interrogated; (c) whether the interrogatories require the party being interrogated to form opinions, draw conclusions about matters or to exercise judgment; (d) whether the questions are repetitive; and (e) the extent to which the questions call for information which is a trade secret or commercially sensitive. In that case, interrogatories which called for commercially sensitive information were found to be oppressive in circumstances where they lacked any real benefit to the proceedings.

Page 588

298 Federal Court Rules 2011 (Cth) r 21.03(4)(b); Court Procedures Rules 2006 (ACT) r 631(1)(b); Uniform Civil Procedure Rules 2005 (NSW) r 22.2(b); Supreme Court Rules (NT) r 30.7(1)(c); Uniform Civil Procedure Rules 1999 (Qld) r 233(1)(d); Supreme Court Civil Rules 2006 (SA) r 151(3); Supreme Court Rules 2000 (Tas) r 409(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.07(1)(c); Rules of the Supreme Court 1971 (WA) O 27 r 5(1)(a). 299 (1987) 16 FCR 284 at 288 300 [1965] NSWR 193 at 195

. .

15.109 Interrogatories will also be oppressive if they contain ambiguous questions or are cast too widely.301 Prolixity (that is, long and repetitive questions) may also give rise to an objection for oppressiveness. In some jurisdictions, this is an express ground of objection.302

301 Kirkup v British Rail Engineering Ltd [1983] 2 All ER 1334; Kupresak v Clifton Bricks(Canberra) Pty Ltd (1984) 57 ACTR 32 at 34

per Blackburn CJ.

302 Court Procedures Rules 2006 (ACT) r 631(1)(c); Supreme Court Rules 2000 (Tas) r 409(3); Rules of the Supreme Court 1971 (WA) O 25 r 5(1)(a).

15.110 Interrogatories will be held to be vexatious if they are delivered without sufficient grounds or for the purpose of ‘causing trouble or annoyance’ to the interrogated party.303

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303 Aspar Autobarn Coordinator Society v Dovala Pty Ltd (1987) 16 FCR 284 at 287

per Woodward J.

Ascertaining documents for discovery

15.111 Interrogatories must be directed at obtaining information relevant to the issues in the proceedings. For that reason, interrogatories which are directed at ascertaining what documents the interrogated party has in its possession for the purpose of discovery are objectionable.304

304 Fiduciary Ltd v Morning Research Pty Ltd [2007] NSWSC 432 at [24] ACTSC 237 at [37] per McWilliam AsJ.

; Piscioneri v Brisciani & Reardon [2007]

Answers to interrogatories

15.112 Interrogatories require the party interrogated to provide answers without evasion to each of the questions contained in the interrogatories, or to object and state the basis of the objection.305 The answers must be provided by the time stipulated in the relevant order of the court or in the rules. The answers must be in writing, although in the Northern Territory and Victoria, procedures exist for oral examination in lieu of written answers.306 In most jurisdictions, the answers must be verified by affidavit.307 Where the interrogated party is a company, the affidavit may be given by an officer of the company.308

Page 589

305 Federal Court Rules 2011 (Cth) r 21.03; Court Procedures Rules 2006 (ACT) rr 633 and 634; Uniform Civil Procedure Rules 2005 (NSW) r 22.3(2); Supreme Court Rules (NT) rr 30.5–30.6; Uniform Civil Procedure Rules 1999 (Qld) r 232; Supreme Court Civil Rules 2006 (SA) r 151(2); Supreme Court Rules 2000 (Tas) r 409(1); Supreme Court (General Civil Procedure) Rules 2015(Vic) rr 30.06 and 30.07; Rules of the Supreme Court 1971 (WA) O 27 rr 4 and 5. 306 See 15.119 ff. 307 Federal Court Rules 2011 (Cth) r 21.03; Court Procedures Rules 2006 (ACT) r 635; Uniform Civil Procedure Rules 2005 (NSW) r 22.3(2)(c) (if the order for interrogatories requires verification by way of affidavit); Supreme Court Rules (NT) r 30.4; Uniform Civil Procedure Rules 1999 (Qld) r 231; Supreme Court Rules 2000 (Tas) r 409; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.04; Rules of the Supreme Court 1971 (WA) O 27 r 1 (although the party administering the interrogatories may elect to receive the answers without verification). 308 For example, r 35.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) provides that where a party is required to verify a matter by affidavit, such an affidavit must be given by a member or officer of the corporation.

15.113 The obligation to answer interrogatories bears a striking resemblance to the duty to make reasonable inquiries in discovery. A party providing an answer to an interrogatory must base the answer on the best of that party’s knowledge, information and belief, and must verify that this is so in the affidavit verifying the answers.309 A

Page 49 of 126 Chapter 15 Discovery, Interrogation and Inspection corporation that is required to answer interrogatories must make inquiries with all relevant employees and agents of the corporation in order to provide an answer.310 In making inquiries to provide answers to the interrogatories, the interrogated party may need to consult its employees or agents, and review documents in its possession.311 In Sharpe v Smail ,312 a defendant, in response to interrogatories, answered that he had no personal knowledge of the matters the subject of the interrogatories, and that while he had some information, he was unable to swear as to the belief in the truth of that information. Gibbs J held that this response was deficient in that the defendant ought to have made all proper inquiries such that he could say that he had answered the questions to the best of his knowledge, information and belief.313

309 Shannon v Whiting (1900) 26 VLR 392

; Douglas v Morning Post Ltd (1923) 39 TLR 402 at 403

per Bankes LJ;

Sharpe v Smail (1975) 5 ALR 377 . In the Northern Territory and Victoria, the extent of the obligation is set out in the rules: Supreme Court Rules (NT) r 30.5; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.05. 310 (1975) 5 ALR 377 at 380

per Gibbs J.

311 Det Danske Hedelskabet v KDM International Plc [1994] 2 Lloyd’s Rep 534. 312 (1975) 5 ALR 377

.

313 (1975) 5 ALR 377 at 379

.

15.114 The requirement to answer based on information, knowledge and belief is conjunctive.314 Accordingly, a party’s answers must not only be based on information which it possesses or of which it has knowledge; the party must also believe that the information is true. If a party is supplied information for the purpose of answering interrogatories which the party does not believe to be true, the party is not bound to provide that information in its answer.315 There must, however, be a reasonable basis for not believing the information to be true.316 Furthermore, as mentioned above, a party must form the belief after having made proper inquiries which may assist the interrogated party to form its belief in the truth of the information.

314 Adams v Dickeson [1974] VR 77

.

315 Gilchrist v R Wallace Mitchell Pty Ltd [1972] VLR 481. 316 Sharpe v Smail (1975) 5 ALR 377 at 380

per Gibbs J.

Insufficient answers and default

15.115 An interrogated party will be in default of its obligation to provide answers to interrogatories if it gives insufficient or incomplete answers. In such a situation, the party that delivered the interrogatories may seek an order for further and better answers, or apply for an order that the interrogated party provide answers by way of affidavit or oral examination.317 The sufficiency of an answer will be determined objectively.318 If a

Page 590 question in the interrogatories is unclear, the court will not make an order to require a further and better answer by the interrogated party if the answer is also unclear.319

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317 Federal Court Rules 2011 (Cth) r 21.05; Court Procedures Rules 2006 (ACT) r 632(1)(c); Uniform Civil Procedure Rules 2005 (NSW) r 22.4; Supreme Court Rules (NT) r 30.9; Uniform Civil Procedure Rules 1999 (Qld) r 236; Supreme Court Civil Rules 2006 (SA) r 151(4); Supreme Court Rules 2000 (Tas) r 410; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.09; Rules of the Supreme Court 1971 (WA) O 27 r 7. 318 Mulley v Manifold (1959) 103 CLR 341

.

319 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 707

.

15.116 If, despite making an order for further and better interrogatories, a party has provided an insufficient answer, the court may take other action, including giving judgment or making such other order as the court thinks fit such as dismissing the action, or striking out the pleadings of the party in default.320 In extreme cases, the court may also commit the defaulting party for contempt.

320 Federal Court Rules 2011 (Cth) r 21.05; Court Procedures Rules 2006 (ACT) r 671(1)(a); Uniform Civil Procedure Rules 2005 (NSW) r 22.5; Supreme Court Rules (NT) r 66.05(2); Uniform Civil Procedure Rules 1999 (Qld) r 237; Supreme Court Civil Rules 2006 (SA) rr 12 and 13; Supreme Court Rules 2000 (Tas) r 411; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 66.05(2); Rules of the Supreme Court 1971 (WA) O 27 r 8.

Use of admissions made in answers

15.117 The eliciting of admissions from an interrogated party is one of the advantages of interrogatories. Answers to interrogatories may be tendered into evidence.321 Where there are multiple questions in the interrogatories, it is sufficient for the party to tender only one or more questions and answers without tendering the remainder. If part of an answer is tendered, the court may look at the whole of the answer for context. If only part of an answer is tendered, and it appears that the remaining part of the answer is so closely connected with the part being tendered such that the part tendered ought not to be used without the other part, the court may reject the tender unless the other part is also tendered. The same principle applies where the court considers that an answer must not be tendered without the tendering of another answer.

321 Federal Court Rules 2011 (Cth) r 21.06; Court Procedures Rules 2006 (ACT) r 636; Uniform Civil Procedure Rules 2005 (NSW) r 22.6; Supreme Court Rules (NT) r 30.11;Uniform Civil Procedure Rules 1999 (Qld) r 238; Supreme Court Civil Rules 2006 (SA) r 152; Supreme Court Rules 2000 (Tas) r 413; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 30.11; Rules of the Supreme Court 1971 (WA) O 27 r 9.

15.118 Admissions made in interrogatories are treated as evidence in relation to a fact in issue. They do not operate as admissions in the sense that the court is no longer required to make a determination of that fact in issue. Accordingly, an interrogated party is at liberty to lead evidence which contradicts or explains an answer to interrogatories.322

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322 Stateliner Pty Ltd v Legal & General Assurance Society Ltd (1981) 29 SASR 16.

Depositions and pre-trial oral examination

15.119 Depositions involve the out-of-court examination of witnesses under oath in advance of a trial. Unlike the United States, depositions do not form part of the discovery process in Australia. While procedures exist for the examination of witnesses before trials (for example, evidence on commission),323 these procedures are not employed as a form of or as part of discovery. Rather, they are directed at the giving

Page 591 of evidence for use in trial. The virtues of depositions, and pre-trial oral examination, were considered by the Australian Law Reform Commission, which recommended providing the Federal Court with the express power to order pre-trial oral examination about discovery, including for the purpose of identifying the existence and location of potentially discoverable documents, assessing the reasonableness and proportionality of a discovery plan, and resolving any disputes about discovery.324 While the rules governing the Federal Court’s procedure do not provide expressly for depositions or pre-trial oral examination, the Full Court has opined that its existing powers give the court the power, at least in theory, to order depositions.325

323 For example, Federal Court Rules 2011 (Cth) r 29.11; Uniform Civil Procedure Rules 2005 (NSW) r 24.3; Supreme Court Rules (NT) r 41.1; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 41.01. See also Foreign Evidence Act 1994 (Cth). 324 Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Final Report, Report No. 115, 2011, p 282. See also M Legg, ‘The United States Deposition — Time for Adoption in Australian Civil Procedure?’ (2007) 31(1) Melbourne University Law Review 146. 325 Jones v Treasury Wine Estates Ltd (2016) 241 FCR 111; [2016] FCAFC 59 at [29] 37P(2)–(3) of the Federal Court of Australia Act 1976 (Cth).

, referring to ss 23, 233ZF and

15.120 In the Northern Territory and in Victoria, procedures exist for parties to be examined orally in lieu of written interrogatories — a process referred to as oral discovery.326 Where the rules permit a party (the ‘examining party’) to serve interrogatories on another party in relation to any question, the examining party may orally examine the other party in relation to that question.327 Importantly, however, the examining party may only carry out oral discovery with the consent of the other party.328 If the party to be examined is a corporation, an officer of the corporation, or another individual as agreed between the parties, may be examined on behalf of the corporation.329 The party being examined will be asked questions by or on behalf of the examining party. The rules mandate that examination must be in the nature of an examination-in-chief, rather than in the form of cross-examination.330 That is, the questions asked should be in the form of open questions intended to obtain information from the party being examined, rather than closed questions intended to obtain the examined party’s agreement or disagreement to certain propositions. Subject to any valid objection, the party being examined must answer each question using the same source of information it would have used had it answered the question in the form of a response to interrogatories.331 The examination, which is to be recorded, is carried out before an examiner appointed by agreement of the parties.332 The examiner has the power to administer oaths and to adjourn the examination.333

Page 592

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326 Supreme Court Rules (NT) O 31; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Pt 31. 327 Supreme Court Rules (NT) r 31.2(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.02(1). 328 Supreme Court Rules (NT) rr 31.2(2) and 4; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 31.02(2) and 31.04. 329 Supreme Court Rules (NT) r 31.8(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.08(1). 330 Supreme Court Rules (NT) r 31.11; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.11. 331 Supreme Court Rules (NT) r 31.11(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.11(4). 332 Supreme Court Rules (NT) r 31.6(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.06(1). The examiner must also consent in writing to the appointment. 333 Supreme Court Rules (NT) r 31.9; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 31.09. The examiner must also consent in writing to the appointment.

15.121 The oral discovery regime relies substantially on agreement having been reached between the parties about matters such as whether the process will be adopted at all, the person to be appointed examiner, and the individual to be examined if the party being examined is a corporation. While the procedure may be attractive to litigants as an efficient alternative to written interrogatories, the absence of time to reflect upon and consider responses to questions may deter parties from its voluntary use.

Preliminary discovery

15.122 Once proceedings have commenced, the law provides parties with extensive facilities to obtain access to documents from each other. But it traditionally provided very limited means for enabling parties to a dispute to obtain documents from each other prior to the commencement of proceedings. This could be a cause of considerable hardship where the victim of a wrong is unable to ascertain whether it has a cause of action against a person without access to that person’s documents. For example,a person who appears to have sustained injury as a result of hospital treatment may not be able to know whether he or she has a legitimate complaint against the hospital, unless he or she could see the hospital records. Similarly, a copyright owner whose work has been published online by an anonymous internet user without authorisation may not know who to sue without access to the user’s details kept by the relevant internet service provider.

15.123 In the auxiliary jurisdiction of equity, courts have long had the jurisdiction to make an order for discovery prior to the commencement of proceedings in aid of an action at law against a nominal defendant.334 Such orders, which have derived from the bill of discovery in equity,335 have now become known as Norwich Pharmacal orders, after the English case of Norwich Pharmacal Co v Commissioners of Customs and Excise .336 The House of Lords, in that case, recognised the power of a court to compel an innocent third party to disclose the identity of a third party wrongdoer (or tortfeasor) in certain circumstances. The owner of a patent obtained an order to compel the Excise Commission to disclose information that could reveal the identity of a party whose conduct infringed the owner’s rights under the patent. Lord Reid held:337 [I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think it matters whether he becomes so mixed up by

Page 53 of 126 Chapter 15 Discovery, Interrogation and Inspection voluntary action on his part or because it was his duty to do what he did.

334 Morissey v Young (1896) 17 LR (NSW) Eq 157 J.

; Hiemann v Commonwealth (1935) 54 CLR 126 at 132

335 Australian National Car Parks Pty Ltd v New South Wales (2014) 287 FLR 448; [2014] NSWCA 298 at [18]

per Evatt

.

336 [1973] 2 All ER 943 (HL). 337 [1973] 2 All ER 943 (HL) at 948.

15.124 In Norwich Pharmacal, it was material that the Excise Commission was involved, albeit innocently, in the conduct of the tortfeasor by clearing for importation

Page 593 the products that allegedly infringed the patent. As a result, the House of Lords recognised a duty on the Commission to assist the patent owner.

15.125 Originally in Australia, it was held that Norwich Pharmacal orders were not available in circumstances where the tortfeasor committed a ‘mere tort’ (such as defamation).338 It is now accepted, however, that the wrongdoing justifying the order may take the form of a tort, breach of contract, or some other civil wrong.339 It is also available to discretionary beneficiaries of a settlement to identify the trustees of a settlement and to obtain information regarding the nature of the trust.340

338 Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246 at 249 (1836) 1 Keen 329

, and Lyell v Kennedy (1883) 8 App Cas 217

per Young J, referring to Glynn v Houston .

339 Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193; [2002] UKHL 29 at [26] 340 Re Murphy’s Settlements; Murphy v Murphy [1998] 3 All ER 1 at 11

per Lord Woolf.

per Neuberger J.

15.126 While courts in Australia retain the inherent power to make these orders,341 the rules of most jurisdictions provide a mechanism for preliminary discovery without the need to apply for a Norwich Pharmacal order.342 As will be evident from the discussion below, one of the features of the Norwich Pharmacal order which distinguishes it from preliminary discovery under the rules is the requirement for the respondent to the application to have been involved or ‘mixed up’ in the conduct of the tortfeasor. This provides the justification for the imposition of the obligation under the order, namely that it would be unjust for the respondent who was involved in the wrongful conduct of the

Page 54 of 126 Chapter 15 Discovery, Interrogation and Inspection tortfeasor to deny the victim the information the victim requires to seek vindication in respect of the wrong. This requirement was emphasised by Lord Woolf in Ashworth Hospital Authority v MGN Ltd :343 Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement, the reference to participation can be dispensed with because it adds nothing to the requirement of involvement, is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion.

By contrast, in preliminary discovery under the rules, the inquiry is directed at whether the respondent to the application is likely to be in possession of information required by the prospective plaintiff.

341 See, for example, Computershare Ltd v Perpetual Registrars Ltd [2000] 1 VR 626. 342 Hooper v Kirella Pty Ltd (1999) 96 FCR 1; [1999] FCA 1584 at [29] 343 [2002] 4 All ER 193; [2002] UKHL 29 at [35]

per Wilcox, Sackville and Katz JJ.

.

Discovery to identify a defendant

15.127 If a prospective plaintiff with a cause of action does not know or is uncertain of the identity or whereabouts of the defendant, the prospective plaintiff may apply for preliminary discovery.344 This particular order compels a third party respondent to

Page 594 disclose information that could assist in ascertaining the identity or whereabouts of the defendant. Typically, this will be in the form of documentary discovery,although in some jurisdictions the court may order the respondent to attend court for examination.345 The application for preliminary discovery must be supported by affidavit evidence setting out the factual basis of the application.346 The information must be sought for the genuine purpose of commencing proceedings against a prospective defendant.347

344 Federal Court Rules 2011 (Cth) r 7.22; Court Procedures Rules 2006 (ACT) r 650; Uniform Civil Procedure Rules 2005 (NSW) r 5.2; Supreme Court Rules (NT) r 32.3; Supreme Court Civil Rules 2006 (SA) r 32(1)(c); Supreme Court Rules 2000 (Tas) r 403C; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.03;Rules of the Supreme Court 1971 (WA) O 26A r 3. 345 For example, Uniform Civil Procedure Rules 2005 (NSW) r 5.2(2)(a). 346 Federal Court Rules 2011 (Cth) r 7.24; Court Procedures Rules 2006 (ACT) r 650(4); Uniform Civil Procedure Rules 2005 (NSW) r 5.2(7); Supreme Court Rules (NT) r 32.8;Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.08; Rules of the Supreme Court 1971 (WA) O 26A r 3(3). 347 Stewart v Miller [1972] 2 NSWLR 128.

15.128

Page 55 of 126 Chapter 15 Discovery, Interrogation and Inspection The precise requirements for an order for preliminary discovery vary from jurisdiction to jurisdiction, although the principles are largely consistent. By way of example, in New South Wales, a prospective plaintiff (an ‘applicant’)must demonstrate that:348 (a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person349 (‘the person concerned’) for the purposes of commencing proceedings against the person; (b) some person other than the applicant (namely, the respondent to the application) may have information, or may have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

348 Uniform Civil Procedure Rules 2005 (NSW) r 5.2(1). 349 The identity of whereabouts of a person includes the name and place of residence, registered officer, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings,and also whether that person is an individual or corporation: Uniform Civil Procedure Rules 2005 (NSW) r 5.1.

Reasonable inquiries

15.129 In most jurisdictions, it is a requirement for the prospective plaintiff to demonstrate that it does not have sufficient information to ascertain the identity or whereabouts of the defendant after having made reasonable inquiries to obtain such information.350 In the Federal Court, the prospective applicant must show that it is unable to ascertain a description of the defendant. It is submitted that for the prospective applicant to satisfy this requirement, it must have made reasonable inquiries.351

350 Court Procedures Rules 2006 (ACT) r 650(1)(c); Uniform Civil Procedure Rules 2005 (NSW) r 5.2(1)(a); Supreme Court Rules (NT) r 32.3(1); Supreme Court Rules 2000 (Tas) r 403C(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.03(1); Rules of the Supreme Court 1971 (WA) O 26A r 3(1). There is no express equivalent requirement in South Australia. 351 Practice and Procedure: High Court and Federal Court of Australia, LexisNexis (online), [r 7.22.15].

15.130 As a general proposition, the ‘reasonable inquiries’ requirement means that where a prospective plaintiff has exhausted one possible source of information to no avail, it should investigate alternative sources.352 This may well include making an

Page 595 informal request of the respondent to the preliminary discovery application prior to the making of the application.353 The reasonableness of the inquiries made by the prospective plaintiff is assessed objectively.354 The prospective plaintiff must describe the inquiries it has made in support of its preliminary discovery application.355 This description need not be detailed, but should disclose what inquiries have been carried out and the results of those inquiries.356 Such information will generally suffice in enabling the court to determine whether reasonable inquiries have been made and whether or not any further inquiries ought to be made by the prospective plaintiff.

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352 CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad [2001] FCA 1223 at [32] 353 Johnston v Holland [2016] VSC 340

per Tamberlin J.

.

354 St George Bank Ltd v Rabo Bank Ltd (2004) 211 ALR 147; [2004] FCA 1360 at [26] 355 The Age Company Ltd v Liu [2013] NSWCA 26 at [52]

per Bathurst CJ.

356 The Age Company Ltd v Liu [2013] NSWCA 26 at [53]

per Bathurst CJ.

per Hely J.

15.131 The fact that there may be an alternative source available to the prospective plaintiff does not, of itself, mean that the prospective plaintiff has not made reasonable inquiries. The court will consider the cost, delay and degree of uncertainty in other means of inquiry.357 For example, in Hughes Aircraft Systems International v Civil Aviation Authority ,358 the prospective applicant was granted preliminary discovery against a government department despite the court accepting that the applicant could have attempted to obtain access to the relevant information by way of a freedom of information application. Given the commercially sensitive nature of the documents sought, Davies J said that exemptions to the right to obtain access would likely have applied to the freedom of information application, such that preliminary discovery was the ‘speedier and more appropriate’ remedy.359

357 Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at [14] P.

per Mason

358 (1995) 217 ALR 303 (FCA). 359 (1995) 217 ALR 303 (FCA) at 308. See also Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at[29]–[32]

per Mason P.

Respondent a likely source of information

15.132 It is a requirement for the prospective plaintiff to demonstrate that the respondent to the preliminary discovery application is likely to be in possession of information that may tend to identify or locate the prospective defendant.360 The prospective plaintiff need not prove that the information in the possession of the respondent will of itself reveal the identity or whereabouts of the prospective defendant.361 It is acceptable that the prospective plaintiff may need to make further inquiries once it has obtained on discovery the information it seeks from the respondent. In Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd ,362 the operator of various car parks wanted to sue in contract the drivers of motor vehicles which were parked in breach of the terms and conditions for parking in the

Page 596 car parks. The operator only had the registration numbers of each of the relevant vehicles and sought by way of preliminary discovery the details of the registered owners of the vehicles from the Roads and Traffic Authority (the RTA).363 The RTA argued that the operator’s putative claim in respect of each vehicle was against the driver of the vehicle on the day in question, who may not necessarily be the registered owner. The New South Wales Court of Appeal held, nonetheless,that the details of the registered owners may reveal the identities of the prospective defendants. The court accepted that a registered owner was likely to know who was driving the vehicle on the day in question.364 The fact that further information or inquiries may be necessary did not mean that the vehicle owners’

Page 57 of 126 Chapter 15 Discovery, Interrogation and Inspection details lacked utility. It is not necessary for the information to be sought from the respondent to be the ‘last piece of a jigsaw’.365

360 Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at [15] P.

per Mason

361 Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at [16] P.

per Mason

362 [2007] NSWCA 114

.

363 The Authority can no longer be required by preliminary discovery to disclose any information about registered vehicles for the purpose of the recovery of private car park fees: Road Transport Act 2013 (NSW) s 279. 364 [2007] NSWCA 114 at [26]

.

365 [2007] NSWCA 114 at [27] .

. See also Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35

15.133 The approach taken by the New South Wales Court of Appeal in Roads & Traffic Authority of NSW was applied by the Federal Court in Dallas Buyers Club LLC v iiNet Ltd .366 In that case, the owner of the copyright in a cinematograph film wanted to sue individual internet users for copyright infringement after they had shared unauthorised copies of the film online using BitTorrent platforms. Through its own investigations,the owner obtained unique internet protocol (IP) addresses of the thousands of users who the owner claimed engaged in the infringing conduct. The owner sought preliminary discovery to require the internet service provider (ISP) to disclose the account holder details associated with each IP address. It was argued by the ISP that the account holders may not necessarily be the same individuals as the alleged infringers. Perram J held that preliminary discovery was not confined only to identifying actual wrongdoers, but may also be used to reveal the identity of someone who might know the identity of the actual wrongdoer.367 Thus, while an account holder may not have been the alleged infringer, he or she may be able to reveal the identity of the alleged infringer. Accordingly, the court found preliminary discovery to be appropriate in these circumstances.

366 (2015) 245 FCR 129; [2015] FCA 317

.

367 (2015) 245 FCR 129; [2015] FCA 317 at [60]

.

Desirability and discretion

15.134 The court retains discretion as to whether it will make an order for preliminary discovery even where the prospective plaintiff has satisfied the prerequisites in the rules.368 Even where discovery is ordered, the court may impose conditions. In determining whether to grant preliminary discovery, the court will consider whether the prospective plaintiff has a proper cause of action against the prospective

Page 597

Page 58 of 126 Chapter 15 Discovery, Interrogation and Inspection defendant,and the likelihood of success in such a proceeding.369 It is not necessary for the prospective plaintiff to establish a prima facie case. Rather, it is sufficient that the prospective proceedings have some prospect of succeeding.370 At this stage of proceedings, it is not appropriate for the court to descend into a detailed examination of the prospective proceedings, particularly given that the prospective defendant will not have had an opportunity to be heard. In exercising its discretion, the court is not limited to considering the merits of the prospective proceedings. For example, in Dallas Buyers Club, the court considered the issue of the privacy of the account holders’ details and the prevention of a sharp practice termed ‘speculative invoicing’.371

368 Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129; [2015] FCA 317 at [73]

ff per Perram J.

369 Levis v McDonald (1997) 75 FCR 36 (FCA); Hooper v Kirella Pty Ltd (1999) 96 FCR 1; [1999] FCA 1584 at [33] per Wilcox,Sackville and Katz JJ. 370 Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354 at [54] Foster J.

per

371 This is discussed further in 15.211.

Position in Queensland and South Australia

15.135 In Queensland, there is no express rule allowing a prospective plaintiff to obtain preliminary discovery to ascertain the identity or whereabouts of a prospective defendant. A party may, of course, apply for a Norwich Pharmacal order.372 However, the Supreme Court has recognised that the court’s power to grant leave to a party to deliver interrogatories under r 229 of the Uniform Civil Procedure Rules 1999 (Qld) may be extended to allow that party to identify a prospective defendant.373 Under the rule, the court may give leave for a party to deliver interrogatories to a person who is not a party to the proceedings to help decide whether that party would be an appropriate party to the proceedings or proposed proceedings.

372 Re Pyne [1997] 1 Qd R 326

; Bli Bli #1 Pty Ltd v Klim Investments Pty Ltd [2010] QSC 381

.

373 Pacific Century Production Pty Ltd v Netafirm Australia Pty Ltd [2004] 2 Qd R 422; [2004]QSC 63 at [21] Douglas J.

per

15.136 In South Australia, if the Supreme Court is satisfied that the plaintiff may have a ‘good cause of action’ but requires further information to determine against whom the relevant claim lies, it may exercise its ‘investigative powers’ under r 32 of the Supreme Court Civil Rules 2006 (SA). Under such powers, the court may order the respondent to disclose whether it is in possession of relevant evidentiary material, to provide full particulars of such material, and to produce the relevant material.374 The court may also require the respondent (or an officer of the respondent) to attend court for cross-examination if, for example, it has failed to provide sufficient disclosure.375

374 Supreme Court Civil Rules 2006 (SA) r 32(2). 375 Supreme Court Civil Rules 2006 (SA) r 32(3).

Page 59 of 126 Chapter 15 Discovery, Interrogation and Inspection

Discovery from a prospective defendant

15.137 If a prospective plaintiff believes that it may have a cause of action against a prospective defendant, but does not have enough information to decide whether to commence proceedings, the prospective plaintiff may seek an order for preliminary discovery to assist in making that decision. Preliminary discovery is available under the

Page 598 court rules of most jurisdictions.376 The rules providing for such discovery are to be beneficially construed in favour of the prospective plaintiff.377 The prerequisites for an application for preliminary discovery vary from jurisdiction to jurisdiction. In the Federal Court, a prospective applicant must satisfy the court of the following three conditions:378 1. that the prospective applicant reasonably believes that it may have the right to obtain relief in the Federal Court from a prospective respondent whose description has been ascertained; 2. after making reasonable inquiries, the prospective applicant does not have sufficient information to decide whether to start proceedings to obtain that relief; and 3. the prospective applicant believes that: (i) the prospective respondent has or is likely to have, or has had or is likely to have had, in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and (ii) inspection of the documents by the prospective applicant would assist in making the decision. Similar requirements apply in the Australian Capital Territory, New South Wales, Northern Territory, Tasmania, Victoria and Western Australia.379 An order for preliminary discovery is always discretionary.380 The court may therefore refuse to order discovery even though the prospective plaintiff has satisfied the prerequisites in the rules.

376 Federal Court Rules 2011 (Cth) r 7.23; Court Procedures Rules 2006 (ACT) r 651; Uniform Civil Procedure Rules 2005 (NSW) r 5.3; Supreme Court Rules (NT) r 32.5; Supreme Court Civil Rules 2006 (SA) r 32(1); Supreme Court Rules 2000 (Tas) r 403E; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.05;Rules of the Supreme Court 1971 (WA) O 26A r 4. 377 Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 (FCA) at 733 per Burchett J. 378 Federal Court Rules 2011 (Cth) r 7.23(1). 379 Court Procedures Rules 2006 (ACT) r 651(1); Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1); Supreme Court Rules (NT) r 32.5; Supreme Court Rules 2000 (Tas) r 403E; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.05; Rules of the Supreme Court 1971(WA) O 26A r 4(1) and (2). 380 Gooley v Breda Pty Ltd [2017] NSWSC 817 at [22]

per Slattery J.

Reasonable belief regarding right to relief

15.138 The requirement of there being a reasonable belief in a right to obtain relief against a prospective defendant (or prospective respondent, in the case of the Federal Court) is to be determined objectively,381 although evidence of the prospective plaintiff ’s subjective belief is relevant.382 The use of the word ‘may’ indicates that the court is not required to reach a firm view about whether there is a right to relief.383

Page 599 While it is not necessary for the prospective plaintiff to show a prima facie or ‘pleadable’ case,384 it is not enough for it to assert the possibility of a right to relief.385 Authorities have provided that the prospective plaintiff ’s belief in a right to relief must be more than a mere assertion, suspicion or conjecture.386 Nonetheless, in Pfizer Pharmaceuticals Ireland v Samsung Bioepis AU Pty Ltd ,387 the Full Court of the Federal Court cautioned against

Page 60 of 126 Chapter 15 Discovery, Interrogation and Inspection attempting to paraphrase the requirement of a reasonable belief and reading into the court’s rules ‘a complex matrix of sub-rules’ which have the effect of overcomplicating the provision. Allsop CJ said in relation to preliminary discovery in the Federal Court: The foundation of the application in r 7.23(1)(a) is that an applicant (a person or a corporation) reasonably believes that he, she or it may have a right to relief. The belief therefore must be reasonable (expressed in the active voice that someone reasonably believes) and it is about something that may be the case, not is the case. It is unhelpful and likely to mislead to use different words such as ‘suspicion’or ‘speculation’ to re-express the rule. For instance, it is unhelpful to discuss the theoretical difference between ‘reasonably believing that one may have a right to relief ’ and ‘suspecting that one does have a right to relief ’ or ‘suspecting that one may have a right to relief ’ or ‘speculating’ in these respects. The use of such (different) words and phrases, with subtleties of differences of imprecise meaning, and not found within the rule itself is likely to lead to the proliferation of evidence and of argument, to confusion and to error. One must keep the words of the rule firmly in mind in examining the material that exists in order to come to an evaluation as to whether the relevant person reasonably believes that he or she may have a right to relief. That evaluation may well be one about which reasonable minds may differ.

Perram J went on to acknowledge that applications for preliminary discovery would necessarily include an element of speculation, such that the inquiry into whether there is speculation is a distraction.388 His Honour held that the issue is therefore whether the belief resulting from the speculation is reasonable.

381 Hooper v Kirella Pty Ltd (1999) 96 FCR 1; [1999] FCA 1584 at [39]

per Wilcox, Sackville and Katz JJ; Glencore

International AG v Selwyn Mines Ltd (2005) 223 ALR 238; [2005] FCA 801 at [10]

per Lindgren J.

382 EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) (2012) 199 FCR 533; [2012] FCA 48 at [32] Katzmann J.

per

383 Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7 at [58]

.

384 Morton v Nylex Ltd [2007] NSWSC 562 at [25] per Slattery J.

per White J; Gooley v Breda Pty Ltd [2017] NSWSC 817 at [20]

385 Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 at [177] 386 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360 at [26] Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 at [49] 387 [2017] FCAFC 193 at [8]

per Nicholas J. per Hely J; Hatfield v TCN

per McColl JA.

per Allsop CJ.

388 Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 at [121]

.

15.139 In the Federal Court, the prospective applicant must demonstrate that it holds a reasonable belief that it may have a right to relief. The test is not whether the prospective applicant holds a belief that it has a right to relief. The reasonableness of that belief is determined objectively by reference to all of the information placed before the court, whether or not all of that information was considered by the prospective applicant in forming its belief.389

389 Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 at [120]

per Perram J.

Page 61 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.140 It is almost inevitable that the prospective defendant, in response to a preliminary discovery application, will lead evidence to refute the putative case of the prospective plaintiff. It may therefore be tempting for the court to embark on an examination of

Page 600 the potential issues in dispute between the parties. However, the court should avoid engaging in a detailed analysis of the merits of the case as this is more appropriate for a trial. Rather, the focus should be directed at whether the prospective plaintiff has a reasonable belief it may have a right to relief. It may well be that on the evidence presented by the prospective defendant that no such reasonable belief could be held. It is another thing though for the court to make rulings on factual controversies or submissions on the law in respect of the prospective plaintiff’s putative claim. In Rose v Lynx Express Ltd ,390 Peter Gibson LJ explained that by a court deciding on the merits of a cause for the purpose of a preliminary discovery application, the court creates the potential of an undesirable conflict between an interlocutory decision of the issue and its final resolution after trial. His Lordship stated that at ‘the pre-action stage, the parties may not have thought through or seen all the implications of the issue in the same way as they will have done by the time when it comes to be tried.Any pre-action determination will have to take place in light of assumptions about the factual circumstances, which may prove incomplete or incorrect’. 391 In The Age Company Ltd v Liu ,392 Bathurst CJ said that parties (and defendants, in particular) should not treat a preliminary discovery application as a ‘dress rehearsal’ for the prospective proceedings.393 In that case, the hearing of the application took 10 days, largely due to arguments made on the merits of the prospective plaintiff’s claim and the prospective defendant’s defence.

390 [2004] EWCA Civ 447. 391 Rose v Lynx Express Ltd [2004] EWCA Civ 447 at [3]. 392 (2013) 82 NSWLR 268; [2013] NSWCA 26 at [102]

.

393 See also Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 at [126]

per Perram J.

Reasonable inquiries and insufficiency of information

15.141 The prospective plaintiff must demonstrate that it has made ‘reasonable inquiries’ prior to it making an application for preliminary discovery and that such inquiries have not provided the prospective plaintiff with sufficient information about whether to commence substantive proceedings. The rationale for such a requirement was explained in Papaconstuntinos v Holmes a Court ,394 that because preliminary discovery may be a demanding task for a prospective defendant, it is incumbent on the prospective plaintiff to attempt first to make its own inquiries.395 What is reasonable will depend upon the circumstances of each case.396 The inquiries need not be directed at the prospective defendant.397

394 [2006] NSWSC 945

.

395 [2006] NSWSC 945 at [20]

per Simpson J.

396 Sinopharm Jiangsu Co Pty Ltd v Bank of China [2007] NSWSC 484 at [32]

per McDougall J.

Page 62 of 126 Chapter 15 Discovery, Interrogation and Inspection 397 Papaconstuntinos v Holmes a Court [2006] NSWSC 945

.

15.142 Preliminary discovery is not available where the prospective plaintiff already has sufficient information to determine whether to commence proceedings. As the rules are directed towards the issue of commencing proceedings, rather than determining whether a cause of action exists, it is legitimate for the prospective plaintiff to seek access to material from the prospective defendant to ascertain

Page 601 whether the prospective defendant will have a valid defence to any claim.398 In Objectivision Pty Ltd v Visionsearch Pty Ltd ,399 Perry J held that preliminary discovery may still be warranted where the prospective plaintiff, having reasonable cause to believe that it has a right to relief, needs further information to know ‘whether the costs and risk of litigation is worthwhile’.

398 Morton v Nylex Ltd [2007] NSWSC 562 at [33] 506; [2010] NSWCA 69 at [51]

per White J; Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR

per McColl JA.

399 (2014) 108 IPR 244; [2014] FCA 1087 at [30] FCR 435; [2008] FCAFC 133 at [36]

, applying Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169

per Heerey, Gyles and Middleton JJ.

A departure from the rule against ‘fishing’

15.143 At the centre of preliminary discovery against a prospective defendant is an apparent tension between seeking information concerning a cause of action and searching for a cause of action to pursue. Discovery is traditionally available to assist parties to establish a case which they have a reasonable basis to pursue or, in the case of the defendant, to defend. Generally, discovery is not available to enable the person seeking discovery to engage in a ‘fishing expedition’. The common law has traditionally set its face against so-called fishing expeditions. But in certain situations justice requires that a person should be allowed to embark on what might otherwise be regarded as fishing.

15.144 For instance, it is only reasonable to expect that a hospital should fully inform its patient of what took place in the course of the patient’s treatment. If it refuses, it should be ordered to provide discovery even before proceedings have been commenced. In such a case it can be said that preliminary discovery merely allows the affected persons to find out what they should be entitled to discover quite independently of any litigation. The hospital patient cannot therefore be criticised for embarking on a fishing expedition. The position is, however, quite different where a person seeks to obtain from another person discovery of documents or information to which they have no legal or moral right in order to find out whether they have a cause of action.

15.145

Page 63 of 126 Chapter 15 Discovery, Interrogation and Inspection If preliminary discovery was easily available, there would be a risk that prospective plaintiffs would seek to use it not so much for the purpose of making an early assessment of the advisability of proceedings, but in order to ferret out a cause of action of which they are otherwise ignorant, or to harass a competitor, or to manoeuvre a potential defendant into an unattractive negotiating position.400 In exercising its jurisdiction, the court has sought to tread a careful path between a legitimate and unacceptable search for information. In this regard it is worth bearing in mind Rix LJ’s warning in Black v Sumitomo that it:401 … cannot be right to think that, wherever proceedings are likely between the parties to such an application and there is a real prospect of one of the purposes under [the court’s rules] being met, an order for [discovery] should be made of documents which would in due course fall within standard [discovery]. Otherwise an order for [preliminary discovery] should be made in almost every dispute of any seriousness, irrespective of its

Page 602 context and detail. Whereas outside obvious examples such as medical records or their equivalent … in certain other kinds of disputes, by and large the concept of [discovery] being ordered at other than the normal time is presented as something differing from the normal, at any rate where the parties at the pre-action stage have been acting reasonably.

400 Cf Arsenal Football Club plc v Elite Sports Distribution Ltd [2003] 07 LS Gaz R 36; Snowstar Shipping Co Ltd v Graig Shipping plc (2) Sports Bank [2003] EWHC 1367 (Comm). 401 [2002] 1 WLR 1562

; [2001] EWCA Civ 1819 at [85]

.

Production from third parties

15.146 Parties to legal proceedings, or persons who contemplate such proceedings, have considerable means of obtaining documents from non-parties, though not necessarily before the trial. There are two distinct procedures for obtaining documents from non-parties. The first is by way of a subpoena for production. The second is by way of an order for discovery in what is commonly referred to as ‘third party discovery’. The power to require production of documents in advance of trial and the power to make discovery orders against non-parties are considerable. A third means may be added to this list, namely the use of a ‘Sabre’ order, which requires a party to the proceedings to make a request for documents held by a third party.

15.147 Although there is an overlap between the use of third party discovery orders and subpoenas, there remain significant differences. Broadly speaking, a subpoena is used to require a person to produce specific documents (although they may be compendiously described in the subpoena) which are directly relevant to the proceedings and which the addressee is believed to possess. A subpoena cannot be used to require a non-party to carry out an extensive search for documents.402 A discovery order against a non-party can be wider and may require a non-party to do more than just produce specific documents. A discovery order directed to a non-party is therefore similar to a discovery order directed to a party, except that the discovery burden that can be reasonably imposed upon a nonparty is more limited than the burden that may be imposed on a party.403

Page 64 of 126 Chapter 15 Discovery, Interrogation and Inspection 402 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 403 Re Howglen Ltd [2001] 1 All ER 376 at 382

; [1994] 1 All ER 755 at 762–4

.

.

Subpoenas

15.148 Until the modern rules of civil produce, a subpoena for production (a ‘subpoena duces tecum’) directed a party (often a non-party) to attend the trial and produce documents specified in the subpoena.The subpoena could be used only for the purpose of requiring production of documents in court during the trial. It could not be used to require production to the parties in advance of the trial. Otherwise, there was almost no power to make disclosure orders against non-parties. The fact that a subpoena was traditionally limited to securing production of documents at the trial, or other hearing, was a cause of much inconvenience and waste, because it meant that a party, and sometimes both parties,would see the document for the first time at the trial. If the document turned out to be insignificant, cost and effort will have been wasted. But even more waste might result if the document turned out to be significant, because one or other of the parties might need an adjournment to study

Page 603 the consequences of the document and to adjust its case accordingly. Further, an early disclosure of the document to the parties might have resulted in an early settlement and the avoidance of protracted litigation. To avoid such consequences, Sir Donald Nicholls VC held in Khanna v Lovell White Durrant (a firm) 404 that where a party could be summoned to produce a document at the trial, that party could also be summoned to produce it in advance of the trial. His Lordship explained that the requirement of early production did not impose any extra burden on the non-party, since it merely brought forward the time at which the non-party needed to produce the document.405

404 [1994] 4 All ER 267; [1995] 1 WLR 121

.

405 See also Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541

.

15.149 This jurisdiction to require the production of documents pursuant to a subpoena before trial is now available under the rules of each jurisdiction. Between 2001 and 2003, a committee appointed by the Council of Chief Justices of Australia developed a set of harmonised rules in relation to subpoenas. The harmonised rules have been adopted in all jurisdictions except Queensland. The practice notes in some jurisdictions provide further direction in relation to the issuing of subpoenas, applications to have them set aside, production of documents, and inspection.406

406 Federal Court of Australia: Subpoenas and Notices to Produce Practice Note (GPN-SUBP); ACT: Practice Direction No 2 of 2014 (Case management in proceedings commenced by originating claim), [14]; NSW: Practice Note No SC Gen 18 (Production of and access to subpoenaed material and returning exhibits and subpoenaed material in civil proceedings); Practice Note No SC Gen 19 (Subpoenas — proposed access orders and the return of subpoena list); NT: Practice Direction No 1 of 2003 — Early Return of Subpoenas; SA: Supreme Court Practice Direction 2.1 (Guidelines for the Use of Electronic Technology), [2.2.30]; WA: Consolidated Practice Directions 2009, [4.3.7].

15.150

Page 65 of 126 Chapter 15 Discovery, Interrogation and Inspection The court, at the request of a party, may issue a subpoena directing a person to attend court to produce a document or a ‘thing’,407 to give evidence (formerly known as a ‘subpoena ad testificandum’), or to do both.408 The subpoena must identify the documents or things that are sought to be produced as well as the date, time and place for production. A subpoena may require a person to produce documents to court either on a day fixed for a hearing, or in advance of a hearing so that the parties may study the documents before the hearing. This time by which production is due is referred to as the return date. With the exception of the High Court, the addressee is taken to have complied with its obligation under a subpoena to produce by delivering the relevant documents to the court’s registry in advance of the return date of the subpoena.409 The

Page 604 party that requested the issue of the subpoena must apply for an order to obtain access to the subpoenaed documents once they have been produced to the court.

407 High Court Rules 2004 (Cth) r 24.02; Federal Court Rules 2011 (Cth) r 24.12(1)(b); Court Procedures Rules 2006 (ACT) rr 6600(3)and 6601(1)(b); Uniform Civil Procedure Rules 2005 (NSW) r 33.2(1)(b); Supreme Court Rules (NT) r 42.2(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 414(1)(a); Supreme Court Civil Rules 2006 (SA) r 172(1)(b); Supreme Court Rules 2000 (Tas) r 495(1)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 42.01 and 42.02(1)(b); Rules of the Supreme Court 1971 (WA) O 36B r 2(1)(b). 408 See Chapter 22, 22.89 ff in relation to the compellability of witnesses to give evidence. 409 Federal Court Rules 2011 (Cth) rr 24.17(4)(b) and 24.18 ; Court Procedures Rules (ACT) 2006 rr 6606(4)(b) and 6607 (at least two days prior to a trial); Uniform Civil Procedure Rules 2005 (NSW) r 33.6(4) ; Supreme Court Rules (NT) r 42.06(4)(b); Uniform Civil Procedure Rules 1999 (Qld) r 420(2) (at least one day prior to a trial); Supreme Court Civil Rules 2006 (SA) r 176(4)(b) (at least two days prior to a trial); Supreme Court Forms Rules 2000 (Tas) (according to Form 37 in Sch 1 Pt 2, at least two days prior to a trial); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.06; Rules of the Supreme Court 1971 (WA) O 36B r 6(4)(b) (at least two days prior to a trial).

15.151 It was a rule under the common law that a party to a proceeding could request the issuing of a subpoena by the court as of right without the need for permission of the court.410 While the position has remained largely unchanged under the rules of civil procedure, leave is required before a subpoena is issued in proceedings before the High Court and the Federal Court.411 In other jurisdictions, leave may be required in certain circumstances. For instance, in the Equity Division of the Supreme Court of New South Wales, leave is required before a subpoena can be issued with the party requesting the subpoena having to demonstrate first that it is necessary for the resolution of the real issues in the proceedings.412 In other instances in New South Wales, leave is required if a party requesting the subpoena is not represented by a solicitor.413 In South Australia, leave is required before a subpoena can be issued for the purposes of an interlocutory application or to compel the production of a public document.414 Leave is also required for the short service of a subpoena, that is, where the subpoena is served outside of the time provided for under the rules.415 Leave is not required to serve a subpoena interstate under the Service and Execution of Process Act 1992 (Cth) provided that the addressee has been provided with at least 14 days’ notice.416 However, leave is required if the subpoena is being served on an addressee in New Zealand pursuant to the Trans-Tasman Proceedings Act 2010 (Cth).417

410 Raymond v Tapson (1882) 22 Ch D 430

(EWCA Civ).

411 High Court Rules 2004 (Cth) r 24.02.01 (that is, a note from a justice of the court); Federal Court Rules 2011 (Cth) r 24.01(1). 412 Supreme Court of New South Wales, Practice Note No SC Eq 11: Disclosure in the Equity Division (22 March 2012), [5]. The practice note governs all forms of ‘disclosure’. The court is unlikely to make any order for disclosure until the parties have served their evidence in the proceedings: [4]. See Australian Mortgage & Finance Company Pty Ltd v Rome Euro Windows Pty Ltd [2014] NSWSC 1744

.

Page 66 of 126 Chapter 15 Discovery, Interrogation and Inspection 413 Uniform Civil Procedure Rules 2005 (NSW) r 7.3(1). 414 Supreme Court Civil Rules 2006 (SA) r 172(6). An ‘interlocutory proceedings’ includes a proceeding that is preliminary or ancillary to an action or appellate proceeding, or an intended action or appellate proceeding, in the court: see r 4. 415 See 15.156 ff in relation to service of subpoenas. 416 Service and Execution of Process Act 1992 (Cth) s 29. 417 Trans-Tasman Proceedings Act (Cth) s 31.

Addressee

15.152 The addressee of the subpoena is the person who is required to comply with the subpoena. While subpoenas to give evidence must only be issued to individuals,418 a subpoena to produce may be issued to a corporation. A subpoena may also be addressed to a government department, unless another law provides otherwise.419

Page 605

418 A subpoena to give evidence cannot be addressed to a corporation, as a corporation is unable to give an oath: McDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210 419 Re Commissioner of Water Resources [1991] 1 Qd R 549

.

.

15.153 As a corporation is an ‘artificial legal personality’ unable to answer a subpoena other than through its human agents, a practice has developed to address subpoenas to the ‘proper officer’ of a corporation.420 Despite this practice, the corporation remains the addressee.421 The significance of addressing the subpoena to a proper officer, who may not necessarily be an employee of the corporation, is that a person with appropriate authority and sufficient ‘control to command the search for and retrieval’of the documents must answer the subpoena.422 If ever there was an issue about whether the corporation complied with a subpoena, the proper officer of the corporation could give evidence on behalf of the corporation about what measures were taken to search and locate the relevant documents.

420 R v Ronen [2004] NSWCCA 67 at [34]

per Spigelman CJ.

421 R v Ronen [2004] NSWCCA 67 at [29]

per Spigelman CJ.

422 Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324 v Ronen [2004] NSWCCA 67 at [37]–[38]

; R v Scott (1990) 20 NSWLR 72 at 79

;R

per Spigelman CJ.

15.154 Where a party is seeking documents in the possession of a corporation, the appropriate addressee generally is the corporation itself, rather than its employees or directors. In Penn-Texas Corporation v Murat Anstalt ,423 Lord

Page 67 of 126 Chapter 15 Discovery, Interrogation and Inspection Denning MR held that this was because a director or employee of a company normally would not have authority to produce the documents of a company.424 This principle applies also to situations in which an employee who is employed by an individual (rather than a corporation) is issued with a subpoena calling for documents held by his or her employer. However, Rochfort v Trade Practices Commission 425 recognised that a person employed by an individual may be the appropriate addressee if it is impracticable to serve the subpoena on the employer because, for example, the employer is overseas or his or her whereabouts are unknown.

423 (1964) 2 QB 647

at 663

.

424 Cited with approval in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 146 425 (1982) 153 CLR 134 at 145

per Mason J.

per Mason J.

Court documents

15.155 The rules in each jurisdiction, except Queensland, do not permit a subpoena to be issued requiring the production of a document or thing in the custody of the court in which the subpoena was issued, or in any other court.426 A party may, however, seek access to court documents by way of a request to the court in accordance with the rules of the court.427

Page 606

426 High Court Rules 2004 (Cth) r 4.07.6; Federal Court Rules 2011 (Cth) r 24.24; Court Procedures Rules 2006 (ACT) r 6601(2)(c); Uniform Civil Procedure Rules 2005 (NSW) r 33.2(2)(b); Supreme Court Rules (NT) r 42.2(2)(b); Supreme Court Civil Rules 2006 (SA) r 172(5)(b); Supreme Court Rules 2000 (Tas) r 29(2);Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.02(2)(b); Rules of the Supreme Court 1971 (WA) O 36B r 2(2)(b). 427 High Court Rules 2004 (Cth) r 4.07.5; Federal Court Rules 2011 (Cth) r 24.24; Court Procedures Rules 2006 (ACT) r 6613(1); Uniform Civil Procedure Rules 2005 (NSW) r 33.13; Supreme Court Rules (NT) r 42.13; Uniform Civil Procedure Rules 1999 (Qld) r 980; Supreme Court Civil Rules 2006 (SA) r 183; Supreme Court Rules 2000 (Tas) r 500F; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.13; Rules of the Supreme Court 1971(WA) O 36B r 13.

Service

15.156 A subpoena must be personally served on the addressee, and with sufficient notice before its return date.428 The requirement for personal service is justified given that the addressee is unlikely to have had any prior involvement in the proceedings, and is liable to be in contempt if it does not comply with the subpoena. In some jurisdictions, an irregularity of service may be cured if the addressee has actual knowledge of the subpoena and its requirements.429

428 High Court Rules 2004 (Cth) r 24.02.4; Federal Court Rules 2011 (Cth) r 24.16(1); Court Procedures Rules 2006 (ACT) r 6605; Uniform Civil Procedure Rules 2005 (NSW) r 33.5; Supreme Court Rules (NT) r 42.05; Supreme Court Civil Rules 2006 (SA) r 175; Supreme Court Rules 2000 (Tas) r 498; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.05; Rules of the Supreme Court 1971 (WA) O 36B r 5. In Queensland, service is effected by serving in

Page 68 of 126 Chapter 15 Discovery, Interrogation and Inspection accordance with the methods in Pts 2–5 of Ch 4 of the Uniform Civil Procedure Rules 1999 (Qld): r 421(1). The requirement of personal service applies also to subpoenas to give evidence. See Chapter 5, 5.32 ff for how personal service is effected generally. Part 3 of the Service and Execution of Process Act 1992 (Cth) sets out the procedure for the service of subpoenas interstate. Part 5 Div 2 of the Trans-Tasman Proceedings Act 2010 (Cth) sets out the procedure for the service of subpoenas in New Zealand. 429 For example, Federal Court Rules 2011 (Cth) r 24.23(2); Uniform Civil Procedure Rules 2005 (NSW) r 33.6(3); Supreme Court Rules 2000 (Tas) r 500E(2); Rules of the Supreme Court 1971 (WA) O 36B r 12(2).

15.157 Under the common law, a subpoena must be served on the addressee at such a time that would give the addressee reasonable time to comply with the subpoena.430 The court rules, in most jurisdictions, prescribe time limits in relation to the service of subpoenas. For example, in the Federal Court, the Australian Capital Territory, New South Wales, Northern Territory, Victoria and Western Australia,a subpoena must be served no later than five days before the return date specified in the subpoena, unless the court orders otherwise.431 In New South Wales, a subpoena issued to a medical expert must be served no later than 21 days before the return date unless the court orders otherwise.432

430 Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459

.

431 Federal Court Rules 2011 (Cth) r 24.13(8); Court Procedures Rules 2006 (ACT) r 6602(8); Uniform Civil Procedure Rules 2005 (NSW) r 33.3(8); Supreme Court Rules (NT) r 42.3(8); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.03(8); Rules of the Supreme Court 1971 (WA) O 36B r 3(8). 432 Uniform Civil Procedure Rules 2005 (NSW) r 31.32(3). Service may also be effected by leaving a copy of the subpoena at the expert’s place of practice with a person who appears to be over the age of 16 years: r 31.32(1).

Conduct money and costs

15.158 Where a subpoena requires the addressee to attend court to give evidence (for example, a subpoena to give evidence, or a subpoena to give evidence and produce documents), the addressee must be provided with a sum of money or its equivalent(for example, a travel ticket) as compensation for the expense of attending court to comply with the subpoena and returning from court.433 This is known as ‘conduct

Page 607 money’ and must be provided with the subpoena or a reasonable time before the date of attendance is required.434 No conduct money is payable if the addressee is a party to the proceedings. In some jurisdictions, the requirement to pay conduct money applies in respect of any subpoena, regardless of whether it is for production or to give evidence.435 In the Federal Court, New South Wales, Northern Territory, South Australia, Tasmania, Victoria and Western Australia, it is not a requirement under the rules for conduct money to be provided with a subpoena, nor is the addressee excused from complying with the subpoena because it has not been provided with conduct money.436 However, in New South Wales, a medical expert need not comply with a subpoena to produce if he or she has not been provided with an amount of money prescribed by the rules for compliance with the subpoena.437

433 Federal Court Rules 2011 (Cth) r 24.22; Court Procedures Rules 2006 (ACT) r 6611; Uniform Civil Procedure Rules 2005 (NSW) r 33.11; Supreme Court Rules (NT) r 42.11; Uniform Civil Procedure Rules 1999 (Qld) r 417; Supreme Court Civil Rules 2006 (SA) r 181; Supreme Court Rules 2000 (Tas); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.11; Rules of the Supreme Court 1971 (WA) O 36B r 11.

Page 69 of 126 Chapter 15 Discovery, Interrogation and Inspection 434 Federal Court Rules 2011 (Cth) r 24.17(1); Court Procedures Rules 2006 (ACT) r 6611; Uniform Civil Procedure Rules 2005 (NSW) r 33.6(1); Supreme Court Rules (NT) r 42.6; Uniform Civil Procedure Rules 1999 (Qld) r 419(1); Supreme Court Civil Rules 2006 (SA) r 176(1); Supreme Court Rules 2000 (Tas) r 499; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.05; Rules of the Supreme Court 1971 (WA) O 36B r 6(1). 435 For example, Court Procedures Rules 2006 (ACT) r 6606(1): an addressee need not comply with a subpoena if it has not been provided with conduct money; Uniform Civil Procedure Rules 1999 (Qld) r 419(1). In the Federal Circuit Court, conduct money of at least $25 must be provided with the subpoena: Federal Circuit Court Rules 2001 (Cth) r 15A.07. 436 Federal Court Rules 2011 (Cth) r 24.17(1); Uniform Civil Procedure Rules 2005 (NSW) r 33.6(1); Supreme Court Rules (NT) r 42.6(1); Supreme Court Civil Rules 2006 (SA) r 176(1); Supreme Court Rules 2000 (Tas) r 499; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.6(1); Rules of the Supreme Court 1971 (WA) O 36B r 6(1). 437 Uniform Civil Procedure Rules 2005 (NSW) r 31.33(2) and Item 3 of Sch 3.

15.159 As we have seen from the preceding discussion, the proliferation of electronically stored information has added to the time and expense of discovery. It follows naturally that an addressee of a subpoena may also experience inconvenience and incur expenses in complying with a subpoena quite apart from attending court to produce the documents. In Bank of New South Wales v Withers ,438 the Federal Court was unable to order that the costs of an addressee in complying with a subpoena for production be paid by the party requesting its issue because the rules of the court at the time did not provide for such an order. With the exception of the High Court, the rules today allow an addressee to claim various costs and expenses associated with complying with a subpoena to produce.439 For example, in New South Wales, the court may order that the issuing party pay an amount of any ‘reasonable loss or expense incurred in complying with

Page 608 the subpoena’.440 This may include, for example, reasonable costs of making copies of documents which the addressee is required to keep in its possession.441 A party may be compensated for the cost of obtaining legal advice incurred in relation to any claims for confidentiality or privilege in the documents called by the subpoena.442 If there is a genuine doubt by the addressee regarding the ability of the party requesting the subpoena to pay the addressee’s costs and expenses, the court may require the requesting party to pay security as a condition precedent to the addressee complying with the subpoena.443

438 (1981) 35 ALR 21

.

439 Federal Court Rules 2011 (Cth) r 24.22; Court Procedures Rules 2006 (ACT) r 6611; Uniform Civil Procedure Rules 2005 (NSW) r 33.11; Supreme Court Rules (NT) r 42.11; Uniform Civil Procedure Rules 1999 (Qld) r 417; Supreme Court Civil Rules 2006 (SA) r 181; Supreme Court Rules 2000 (Tas) r 500D; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.11; Rules of the Supreme Court 1971 (WA) O 36B r 11. See also Service and Execution of Process Act 1992 (Cth) s 35. 440 Uniform Civil Procedure Rules 2005 (NSW) r 33.11(1). 441 Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 28; A Pty Ltd v Z [2007] NSWSC 999

.

442 Pyramid Building Society (in liq) v Farrow Finance Corporation Ltd (in liq) [1995] 1 VR 464

; Selim v McGrath (2004)

48 ACSR 681; [2004] NSWSC 129 at [40]–[43]

per Barrett J.

443 Re Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289; [2006] NSWSC 879

Production and inspection

15.160

.

Page 70 of 126 Chapter 15 Discovery, Interrogation and Inspection A subpoena to produce requires the addressee to produce the documents described in the subpoena to the court, not to the party that requested the subpoena.444 The addressee is only required to produce documents in its possession, custody or control.445 An addressee will comply with the subpoena by producing documents to the court a day or two before the return date (depending on the rules of the court).446 After production, the parties to the proceedings may request an order to inspect the documents.447 Whether inspection will be granted is at the discretion of the court; the parties do not have a general right of inspection.448 Inspection may be refused where there is an objection, such as that the documents in question are subject to a claim for privilege. Once it has been established that the documents called by the subpoena have an apparent relevance to the proceedings,however, the court will make orders allowing for the inspection of the documents unless there are any objections.449

444 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 445 Rochfort v Trade Practices Commission (1982) 153 CLR 134 to employees and directors.

per Jordan CJ.

, although see 15.154 in relation to subpoenas issued

446 Federal Court Rules 2011 (Cth) rr 24.17(4)(b) and 24.18 ; Court Procedures Rules 2006 (ACT) rr 6606(4)(b) and 6607; Uniform Civil Procedure Rules 2005 (NSW) r 33.6; Supreme Court Rules (NT) r 42.6(4)(b); Uniform Civil Procedure Rules 1999 (Qld) r 420(2); Supreme Court Civil Rules 2006 (SA) r 176(4)(b); Supreme Court Forms Rules 2000 (Tas) Sch 1 Pt 2 Form 37; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.06; Rules of the Supreme Court 1971 (WA) O 36B r 6(4)(b). 447 For example, Uniform Civil Procedure Rules 2005 (NSW) r 33.9(3). 448 National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 385 whom Hutley and Glass JJA agreed). 449 Apache Northwest Pty Ltd v Western Power Corp (1998) 19 WAR 350

per Moffitt P (with

.

Setting aside subpoena

15.161 Courts have the power to set aside a subpoena both under their inherent jurisdiction to prevent an abuse of process,450 and under the applicable rules of the

Page 609 court.451 The subpoena may be set aside upon the application of the addressee or a party to the proceedings, or by the court on its own motion. A third party with a legitimate interest in having the subpoena set aside, such as a party with a proprietary interest in the documents, also has standing to bring such an application.452 Where a subpoena has been issued in an inferior court (that is, a court without an inherent jurisdiction), the addressee or a party may apply to have it set aside in the superior court (such as a Supreme Court of a state or territory) with supervisory jurisdiction over the inferior court.453 The court rules provide limited guidance as to the grounds upon which a subpoena can be set aside.454 Rather, these grounds are largely found in the principles which have been developed under the common law, some of which are discussed below.

450 Fried v National Australia Bank Ltd (2000) 175 ALR 194 at [18] per Weinberg J; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 3981 at [32] per Yates J. 451 Federal Court Rules 2011 (Cth) r 24.15; Court Procedures Rules 2006 (ACT) r 6604; Uniform Civil Procedure Rules 2005 (NSW) r 33.4; Supreme Court Rules (NT) r 42.4; Uniform Civil Procedure Rules 1999 (Qld) r 416; Supreme Court Civil Rules 2006 (SA) r 174; Supreme Court Rules 2000 (Tas) r 497; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.04; Rules of the Supreme Court 1971 (WA) O 36B r 4. There are no express rules in the High Court for the setting aside of subpoenas.

Page 71 of 126 Chapter 15 Discovery, Interrogation and Inspection 452 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 453 Holland v Sammon (1972) 4 SASR 1

.

.

454 In Queensland, r 415(2) of the Uniform Civil Procedure Rules 1999 (Qld) sets out a non-exhaustive list of grounds for setting aside a subpoena,namely want of relevance, privilege, oppressiveness, and non-compliance with the rules.

15.162 While it is common for objections to subpoenas to take the form of an application to set aside a subpoena, there are other stages in the life cycle of the subpoena in which the court may intervene. In Roux v Australian Broadcasting Commission ,455 Byrne J identified the following five stages: (i) the time at which the subpoena is issued, (ii) upon an application to set it aside, (iii) at the time that the addressee answers the subpoena, (iv) upon an application by the parties to inspect the documents, and (v) where a party seeks to tender a document produced under subpoena into evidence.

455 [1992] 2 VR 577 at 595

.

Lack of legitimate forensic purpose

15.163 A subpoena must be issued for a legitimate forensic purpose in the proceedings, which the person requesting the issue of the subpoena must be able to describe when called into question.456 A subpoena is liable to be set aside for want of a legitimate forensic purpose if it cannot be established that the documents sought to be produced under the subpoena have an apparent relevance to the proceedings, or if the documents are sought for an improper purpose.457 A subpoena will be sufficiently relevant if the documents sought by it are reasonably likely to add relevant evidence in the

Page 610 proceedings.458 It has been held that a subpoena seeking production of documents to ground an amendment to the pleadings does not have a legitimate forensic purpose.459

456 Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 at 504 Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] JA agreed).

per Barr AJ; NSW

per Brownie AJA (with whom Spigelman CJ and Ipp

457 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103 Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 at [39]

per Beaumont J; Campaign Master (UK) per Yates J.

458 Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147; [2005] FCA 510 at [23]

per Sackville J.

459 ACN 008 664 257 Pty Ltd v HIH Casualty and General Insurance Ltd (in liq) [2005] NSWSC 881 at [32] J.

Want of apparent relevance

per Einstein

Page 72 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.164 A subpoena may be set aside for want of relevance to the proceedings, an issue which may overlap with legitimate forensic purpose. It may be difficult for the court to determine the relevance of documents prior to the addressee having produced the documents, and at an early stage of the proceedings. Accordingly, the court will consider the apparent relevance of the documents sought to the proceedings.460 The relevance may be to the issues in the proceedings and written evidence which has been served by the parties. Documents sought under a subpoena may be relevant where they are solely for the purpose of impeaching the credibility of a witness in the proceedings, although courts have stressed the need to exercise scrutiny before allowing such a subpoena to stand.461 It is not necessary for the party requesting the subpoena to demonstrate that the documents will definitely advance its case. It is enough that the documents will ‘possibly throw light’ on the issues, or that it appears to be‘on the cards’ that they will do so.462

460 Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [23] 461 Fried v National Australia Bank Ltd [2000] FCA 911 at [27]

per Brereton J.

per Weinberg J.

462 Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [25]

per Brereton J.

Improper purpose and abuse of process

15.165 Where a subpoena is issued for an improper purpose, it may be aside as an abuse of process.463 In National Employers’ Mutual General Association Ltd v Waind ,464 a subpoena was set aside as it was found that the issuing party was seeking to obtain the documents the subject of the subpoena for the purpose of different proceedings. A party seeking to have a subpoena set aside on the ground that it was issued for an improper purpose must establish that it was issued for such a purpose, although it is incumbent on the party that requested the subpoena to justify the basis upon which it requested the subpoena.465

463 R v Tastan (1994) 75 A Crim R 498 464 [1978] 1 NSWLR 372

. See also Chapter 14, 14.30 ff in relation to abuse of process generally.

.

465 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 716

per Clarke J.

Fishing

15.166 A party must only request a subpoena to obtain evidence in support of its case.466 Accordingly, a subpoena issued in the hope of discovering whether the party or another party has a case at all, is liable to be set aside for fishing.467 That is not

Page 611

Page 73 of 126 Chapter 15 Discovery, Interrogation and Inspection to say that the issuing party must be certain that the addressee will have evidence in support of its case. Indeed, the issuing party may not know the contents of the documents it has requested, or even if those documents exist.468 However, there must be a reasonable belief held by the party that takes it beyond mere speculation.469 It is not necessary for the party to have other evidence of its case. In Bailey v Beagle Management Pty Ltd,470 the Full Court of the Federal Court gave the example of a driver suing for an injury sustained by the negligence of another driver where the plaintiff had no independent recollection of the car accident. The plaintiff driver may request the issue of a subpoena seeking details of the accident to make out his or her case in negligence, but cannot be said to be fishing merely because he or she has no other evidence.

466 Alister v R (1983) 154 CLR 404 at 451 467 Griebart v Morris [1921] KB 659

per Brennan J.

; Commissioner for Railways v Small (1938) 38 SR 564 at 575 per Jordan CJ.

468 Carter v Hayes (1994) 61 SASR 451 at 453

per King CJ.

469 Air Canada v Secretary for State for Trade [1983] 2 AC 394 Commissioner of Police v Tuxford [2002] NSWCA 139 at [27]

(HL) at 439 per Lord Wilberforce, applied in NSW per Brownie AJA.

470 Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136; [2001] FCA 60 at [29]

.

Privilege

15.167 A party may apply to have a subpoena set aside if it calls for documents which are the subject of privilege, such as legal professional privilege.471 That the documents to be produced may be the subject of a claim for privilege is also a ground to object to the parties being provided with access to the documents once the documents have been produced to the court.

471 Senior v Holdsworth; Ex parte Independent Television News Ltd [1975] 2 All ER 1009

.

Discovery

15.168 Subpoenas must not be issued for the purpose of, or as a substitute for, discovery (including further and better discovery), nor should compliance with it be tantamount to discovery.472 A subpoena will be found to be tantamount to discovery if it requires the addressee to carry out a ‘burdensome search for evidence’ at its own expense, or if it requires the addressee to form a judgment about the issues in dispute and which documents relate to those issues.473 Three justifications may be advanced for this general principle. First, a subpoena is ‘a qualification upon, or an intrusion into’ the general right of every person to keep his or her documents to himself or herself.474 Therefore, that intrusion must be kept to a minimum and occur only where the justice of a case requires it. Secondly, it would impose an unfair burden on the addressee (if it is a third party) for it to have to form a judgment about which of its documents are relevant to the issues in the proceeding in circumstances where it is a stranger to the proceedings and is unlikely to have access to the pleadings

Page 612 and other relevant court documents.475 Thirdly, it would amount to an abuse of the subpoena process for a party to circumvent the rules for discovery, and its safeguards, by requesting the issue of a subpoena.476

Page 74 of 126 Chapter 15 Discovery, Interrogation and Inspection

472 Commissioner for Railways v Small (1938) 38 SR 564 at 574 per Jordan CJ; R v Wilkey; Ex parte Cooke [1991] 2 Qd R 447

; Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686

Kizon v Palmer (1997) 75 FCR 261

;

.

473 Lee v Angas (1866) LR 2 Eq 59 at 63 per Wood VC, applied in Lane v Registrar of the Supreme Court of New South Wales (1981) 35 ALR 322 (HCA) at 332. 474 Rochfort v Trade Practices Commission (1983) 153 CLR 134 at 145 per Mason J. 475 Commissioner for Railways v Small (1938) 38 SR 564 at 575 per Jordan CJ; National Employer’s Mutual General Association v Waind [1978] 1 NSWLR 372 at 382 476 Pasini v Vanstone [1999] FCA 1271 at [40]

per Moffitt P.

per Finn J.

Oppressiveness

15.169 A subpoena is liable to be set aside if it is oppressive. Oppressiveness may come in various forms. It will be oppressive for a subpoena to place an undue burden on the addressee by calling for a voluminous number of documents which do not appear to be sufficiently relevant or material to the proceedings.477 This may arise where, for example, the categories of documents described in the subpoena are cast broadly and which, as a result, capture documents that are not relevant to the proceedings. Whether the burden placed on the addressee can be justified will depend upon the circumstances. The court will take into account the capacity for the addressee to bear the burden of production, bearing in mind that it will be able to claim reasonable costs incurred in relation to the subpoena.478 A government department or a large company is likely to be in a better position to respond to a subpoena, on the assumption that it will be well staffed and better resourced than a small company or an individual. In considering the burden,the court will also consider the likely knowledge that the addressee possesses of the issues in the proceedings.479

477 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 FLR 139

; Gilligan v Nationwide News Pty Ltd (1990) 101

.

478 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 571 479 McColl v Lehmann [1987] VR 503

per Smithers J.

.

Insufficient particularity

15.170 A subpoena is liable to be set aside if the documents which it seeks are described with insufficient particularity.480 This ground of objection is a species of oppressiveness. A subpoena does not lack particularity merely because it calls for documents within a class or relating to a subject matter, provided that the subpoena specifies with reasonable particularity the documents that are required to be produced.481 Furthermore, a degree of generality in description is tolerated as the party requesting the subpoena may not know exactly how the addressee describes, arranges or stores its documents.482

Page 75 of 126 Chapter 15 Discovery, Interrogation and Inspection

Page 613

480 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [14] 110 at [37]–[41]

per Barrett J; R v WR (No 2) [2009] ACTSC

per Refshauge J.

481 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 Supreme Court of New South Wales (1981) 35 ALR 322 at 332 Pty Ltd (1986) 67 ALR 93 at 97–8

per Jordan CJ; Lane v Registrar of the

; Greyhound Australia Pty Ltd v Deluxe Coachlines

per Pincus J.

482 Alliance Petroleum Australia NL v Australian Gas Light Co (1982) 44 ALR 124 (SASC) at 133 per Bollen J.

Confidentiality

15.171 A party is not excused from producing documents merely because those documents may be confidential or commercially sensitive. The law affords a degree of protection over confidential information through the implied undertaking that documents produced by subpoena must only be used for the purpose of the proceedings in which the subpoena was issued, although this may be lost once the documents are tendered into evidence or read aloud in open court.483 While confidentiality is not, of itself, a ground to set aside a subpoena, a subpoena which calls for the production of confidential information such as trade secrets may be a factor which makes the subpoena oppressive.484 The court may restrict the inspection of confidential documents subject to a confidentiality regime, or suppression or nonpublication order.485

483 Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97 at 106 Stephenson LJ; Harman v Secretary of State for the Home Department [1983] 1 AC 280 NSWCA 461 at [5]

per

; Blanch v DCT [2004]

per Giles JA.

484 Apache Northwest Pty Ltd v Western Power Corp (1998) 19 WAR 350 at 380–1

.

485 See 15.202 ff.

Compliance and contempt

15.172 It is a contempt of court for an addressee to fail to comply with a subpoena which has been properly served.486 An addressee may be liable to be committed for contempt despite not being served properly, if it can be established that it had actual knowledge of the subpoena and of its requirements by the last date for service. As with any order, the court may extend the time by which the addressee is required to comply with the subpoena.

486 Federal Court Rules 2011 (Cth) r 24.23; Court Procedures Rules 2006 (ACT) r 6612; Uniform Civil Procedure Rules 2005 (NSW) r 33.12; Supreme Court Rules (NT) r 42.12; Uniform Civil Procedure Rules 1999 (Qld) rr 414(9) and 925(1)(a) ; Supreme Court Civil Rules 2006 (SA) r 182; Supreme Court Rules 2000 (Tas) r 500E; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 42.12; Rules of the Supreme Court 1971 (WA) O 36B r 12. See Chapter 24, 24.73 ff in relation to contempt.

Page 76 of 126 Chapter 15 Discovery, Interrogation and Inspection

Third party discovery

15.173 The rules of the Federal Court, New South Wales, Northern Territory, Tasmania, Victoria and Western Australia enable a party to seek discovery from a third party for use in existing proceedings.487 The order may be made on the basis that the party making the application pays the costs incurred by the third party of giving discovery.488 While the prerequisites for a discovery order vary from jurisdiction to jurisdiction, generally the court must be satisfied that the third party is likely to have or appears to have documents that are relevant to the proceedings. The basis for

Page 614 asserting the likelihood of a third party having possession, custody or power over such documents must be set out in a supporting affidavit, which must be served personally on the third party along with the application for discovery.489

487 Federal Court Rules 2011 (Cth) r 20.23; Uniform Civil Procedure Rules 2005 (NSW) r 5.4; Supreme Court Rules (NT) r 32.7; Supreme Court Rules 2000 (Tas) r 403FA; Supreme Court (General Civil Procedure) Rules 2015 (Vic); Rules of the Supreme Court 1971 (WA) O 26A r 5. 488 For example, Federal Court Rules 2011 (Cth) r 20.25; Supreme Court Rules (NT) r 32.11(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.11(2); Rules of the Supreme Court 1971 (WA) O 26A r 7. 489 For example, Federal Court Rules 2011 (Cth) r 20.23(2); Uniform Civil Procedure Rules 2005 (NSW) r 5.4(2).

15.174 An order for discovery against a third party is likely to be intrusive given that the third party is a stranger to the proceedings. As a result, the order for discovery should be limited to those cases where it is necessary in order to dispose of the proceedings fairly.490 In the ordinary course, the order should not be made unless the party seeking the order has exhausted other avenues, although this is not an arbitrary rule.491 The documents sought from the third party must be directly relevant to the issues in the proceedings.492 The court is unlikely to make an order for general discovery against a third party given that the party is unlikely to be familiar with the issues in the proceedings.493 Accordingly, discovery will be required according to clear categories which may be understood by a stranger to the proceedings.494

490 Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164

.

491 Williams Aviation v Santos Ltd (1985) 49 SASR 272 at 275–6 per O’Loughlin J; Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 at 189

per Burchett J; Viscariello v Macks (No 6) [2010] SASC 303

492 Lion-Dairy and Drinks Pty Ltd v Sinclair Knight Merz Pty Ltd [2014] FCA 114 at [9] 493 Lebon v Lake Placid Resort [1995] 1 Qd R 24

.

494 Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 at 188–9

per Burchett J.

. per Griffiths J.

Page 77 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.175 In the Australian Capital Territory, a third party may be required to produce for inspection material relevant to an issue in proceedings if it is served with a notice for non-party production.495 In South Australia, a third party may be ordered by the court to disclose whether or not the third party has in its possession evidentiary material that is relevant to an issue in the proceedings.496 The third party may also be called upon to produce any such evidentiary material, or to identify the whereabouts of any material that is no longer in its possession. In Queensland, a party may obtain third party disclosure by way of a writ of non-party discovery, which does not require a court order.497 This is provided that there is no other ‘reasonably simple and inexpensive way of proving the matter’ that is sought to be proved by seeking disclosure of the documents from the third party.498 The notice may be set aside by order of the court.499

495 Court Procedures Rules 2006 (ACT) r 660. 496 Supreme Court Civil Rules 2006 (SA) r 146. 497 Uniform Civil Procedure Rules 1999 (Qld) rr 242–243 . 498 Uniform Civil Procedure Rules 1999 (Qld) r 243. 499 Uniform Civil Procedure Rules 1999 (Qld) r 247.

‘Sabre’ orders

15.176 In Sabre Corp Pty Ltd v Russ Kalvin’s Hair Care Co ,500 Lockhart J held that the court had the power to require a party to proceedings to take steps to obtain access to and discover documents which are in the possession, custody or power of a third party where there is a real likelihood that the party to the proceedings would be given access to such documents upon request. The source of this power was said to derive

Page 615 from the general power of the court to make such orders as it thinks appropriate.501 Such orders have now become known as ‘Sabre’ orders. The advantage of making such an order is that it places the burden on the party against which the order is made to obtain the documents from the third party, rather than the party requesting the order. Furthermore, it is especially useful where the third party is located outside of Australia such that third party discovery orders or a subpoena may be impractical. Sabre orders may be deployed, for example, to require a subsidiary to request documents of its overseas parent company. However, a shortcoming of the Sabre order is that it places no burden on the third party to produce;it is at liberty to refuse production. In Kimberly-Clark Australia Pty Ltd v Carter Holt Harvey Tissue Australia Ltd ,502 Lehane J said that in cases where a third party refused production, the court may be invited to draw inferences based on the refusal. Such inferences could possibly include that the documents that would be produced by the third party would not assist the party against which the Sabre order is made.

500 (1993) 46 FCR 428 at 431–2

.

501 Federal Court of Australia Act 1976 (Cth) s 23. 502 (1997) 37 IPR 293 at 301

.

Page 78 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.177 In SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) ,503 Edmonds J identified four prerequisites for a Sabre order. First, the party seeking the order must provide evidence that there is a real likelihood that the third party in question would give access to the party that would be required to request the documents. Secondly, there must be a real likelihood that the documents sought are in fact in existence in the possession of the third party. Thirdly, while not a requirement, it is preferable for the order to specify what reasonable steps should be taken to obtain the documents from the third party. Fourthly, the order should be considered only after discovery has taken place, after which the request will be for specific documents.

503 (2006) 155 FCR 150; [2006] FCA 931 at [31]–[34]

.

Notices to produce prior to hearing

15.178 The rules in most jurisdictions allow one party to serve a notice on another party to produce documents described in the notice at a trial or hearing.504 Additionally, the rules also allow a party to issue a notice on another party requiring the production for inspection of a document referred to in a pleading or an affidavit.505 Any document referred to in a pleading, including in particulars, becomes part of the pleading such that it is open to the court or another party to look at the document.506 There must be

Page 616 a direct allusion in the pleading or affidavit to the document in question.507 It does not include documents which must exist only by implication.508 For example, the fact that a pleading or affidavit refers to a party having received advice is not a direct allusion to a letter recording that advice, there being no direct allusion to a document.509

504 Federal Court Rules 2011 (Cth) r 30.28; Court Procedures Rules 2006 (ACT) r 6748; Uniform Civil Procedure Rules 2005 (NSW) r 34.1; Supreme Court Rules (NT) r 35.08;Uniform Civil Procedure Rules 1999 (Qld) r 227; Supreme Court Civil Rules 2006 (SA) r 215; Supreme Court Rules 2000 (Tas) r 400; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 35.08; Rules of the Supreme Court 1971 (WA) O 30 r 5. 505 Federal Court Rules 2011 (Cth) r 20.31; Court Procedures Rules 2006 (ACT) r 620; Uniform Civil Procedure Rules 2005 (NSW) r 21.10(1)(a); Supreme Court Rules (NT) r 29.10; Uniform Civil Procedure Rules 1999 (Qld) r 222; Supreme Court Civil Rules 2006 (SA) r 61; Supreme Court Rules 2000 (Tas) r 391(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.10; Rules of the Supreme Court 1971 (WA) O 26 r 8. 506 Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219 at 220

per Singleton LJ.

507 New Cap Reinsurance Corporation Ltd (in liq) v Daya [2008] NSWSC 763 508 Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731 509 Welker v Rinehart [2012] NSWSC 599.

15.179

at 738

.

per Slade J.

Page 79 of 126 Chapter 15 Discovery, Interrogation and Inspection Upon receipt of the notice to produce, the recipient must make available the document for the inspection of the other party within a reasonable time (which may be prescribed in the rules of the court), or state the basis on which it objects to production.510 In some jurisdictions, a notice to produce may call for the production of any document which the party believes is in the possession, custody or power of another party and which is relevant to a fact in issue in the proceedings.511

510 Federal Court Rules 2011 (Cth) r 20.31(2); Court Procedures Rules 2006 (ACT) r 620(4)–(5); Uniform Civil Procedure Rules 2005(NSW) r 21.11; Supreme Court Rules (NT) r 29.10(3) ; Supreme Court Rules 2000 (Tas) r 391; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.10(3); Rules of the Supreme Court 1971 (WA) O 26 r 8(2). Those objections which apply in respect of subpoenas to produce are also applicable to notices to produce: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

.

511 Uniform Civil Procedure Rules 2005 (NSW) r 21.10(1)(b).

Subsequent use of disclosed information The general principle

15.180 The public interest in ensuring that all relevant information is available to the adjudicative process overrides any right to privacy, and in general terms justifies compulsory measures to force litigants and non-parties to produce documents relevant to the facts in issue.512 However, the interests of the administration of justice can justify the invasion of the private sphere of others only to the extent that it is necessary to enable a court to decide fairly the case before it. It would be wrong, therefore,to allow a party that receives a document as a result of compulsory disclosure to treat the information as its own to dispose of as it sees fit. All else being equal, we may say that the freedom of a party to use a disclosed document or its contents must not outstrip the purpose for which the document was disclosed to that party.513 Lord Diplock explained the need for a restriction on the use of disclosed material in Home Office v Harman :514 The use of discovery involves an inroad, in the interests of achieving justice, on the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.

Lord Keith added in the same case:515

Page 617   Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.

512 See the discussion in Chapter 3, 3.93 ff. 513 For a meticulous and comprehensive analysis of the subject of subsequent use, see S Gibbons, Subsequent Use of Documents Disclosed in Civil Proceedings, 2002, Doctoral Thesis, submitted to the University of Oxford.

Page 80 of 126 Chapter 15 Discovery, Interrogation and Inspection 514 [1982] 1 All ER 532 at 534

(HL).

515 [1982] 1 All ER 532 at 540

(HL).

15.181 As a matter of general principle, the freedom to use documents obtained as a result of discovery or some other interlocutory process was limited to use in the proceedings in which they were disclosed.516 The obligation not to use the documents for any other purpose was said to arise from an implied undertaking (sometimes referred to as the ‘Harman undertaking’) that every party who received the disclosed documents gave to the court.517 The implied undertaking applied equally to documents received in criminal proceedings, as well as to documents received in civil proceedings in the absence of an order compelling disclosure.518 It is said that the word ‘undertaking’ is somewhat of a misnomer in the sense that it implies a voluntary promise to the court. However, the reference to an undertaking in this context merely indicates that it is imposed by law as a condition of obtaining discovery, receiving answers to interrogatories, or obtaining information through some other form of compulsory disclosure.519 In Riddick v Thames Board Mills Ltd ,520 Lord Denning MR said that a ‘party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose’. The involuntary nature of the undertaking means that it is more accurately described now as a substantive legal obligation,521 a breach of which may amount to contempt.

516 Home Office v Harman [1982] 1 All ER 532 at 540 (HL). See also Derby & Co Ltd v Weldon (1988) Times, 20 October, per Browne-Wilkinson VC, quoted in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 (EWCA) at 506; Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878; [1991] 1 WLR 756 ; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Discovery, Reeves and Turner, London, 1885, p 238. 517 Taylor v Director of Serious Fraud Office [1999] 2 AC 177

; E Bray, The Principles and Practice of

; [1998] 4 All ER 801 (HL)

.

518 Taylor v Director of Serious Fraud Office [1997] 4 All ER 887 (EWCA Civ); Helicopter Aerial Surveys Ltd v Robertson [2015] NSWSC 2104 at [9]–[18]

per Brereton J.

519 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [3]

per Gleeson CJ, at [106]–[108] per Hayne, Heydon and

Crennan JJ. See also Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168 520 [1977] QB 881

per Kirby P.

(EWCA Civ) at 896.

521 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [106]

per Hayne, Heydon and Crennan JJ.

15.182 Under the common law, it would be improper for a litigant to pass on disclosed information to a stranger to a proceeding, even if the stranger were a public institution such as a government agency or the police.522 An expert who sells to the press information that he or she has gleaned from documents obtained in discovery, which have been submitted to him or her by a litigant in order to receive expert advice, would be guilty of a most reprehensible breach of duty.523 It would amount to an abuse of process and to contempt of court for a litigant to exploit the process of discovery in

Page 618 order to extract information from an opponent with a view to giving it publicity rather than for the purpose of advancing its case in the proceedings.

Page 81 of 126 Chapter 15 Discovery, Interrogation and Inspection

522 Alterskye v Scott [1948] 1 All ER 469 the police.

, where disclosed documents were passed to the Ministry of Agriculture and

523 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613

; [1975] 1 All ER 41

.

15.183 The implied undertaking is not limited to the parties to the proceedings. It binds any person to whom the documents and information in question are given, which may include lawyers, employees and officers of a party, witnesses, and those funding the litigation.524 In Prudential Assurance Co Ltd v Fountain Page Ltd ,525 Hobhouse J said that any person who knowingly acts inconsistently with the undertaking will be held in contempt. Thus, in Hearne v Street ,526 the officers of the defendant corporation were found to be in contempt after they had released information affidavits and expert reports, which had not yet been read into evidence, to the media and a government minister.527 The information was released for the purpose of lobbying the government to change the law that gave rise to the claim that was litigated in the proceedings.

524 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [109] 525 [1991] 1 WLR 756

at 765

per Hayne, Heydon and Crennan JJ.

.

526 (2008) 235 CLR 125; [2008] HCA 36

.

527 As explained further in Chapter 20, 20.75–20.76, affidavits which have not been read in open court are subject to the implied undertaking.

15.184 The court is perfectly free to release a party from the undertaking and allow collateral use but, as Brooke J observed, the court has always retained control in order to prevent its processes from being abused.528 In Hearne v Street ,529 Hayne, Heydon and Crennan JJ emphasised that the undertaking is not limited to documents provided on discovery. Their Honours held that where a party to litigation is compelled, either by reason of a rule of court, or by reason of an order,to disclose documents or information, the party obtaining disclosure is subject to the undertaking unless the information or documents are admitted into evidence. The undertaking therefore applies to answers to interrogatories, documents obtained by way of subpoena or notice to produce, documents seized under a search order, documents produced for the purpose of taxation of costs, and evidence served pursuant to an order or direction of the court. It also applies to arbitration proceedings.530 This principle is also now restated in the rules of some jurisdictions in relation to discovery.531 For instance, in New South Wales, r 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides: (1)

No copy of a document, or information from a document, obtained by party A as a result of party B is to be disclosed or used otherwise than for the purpose of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

(2)

Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of such order.

Page 619 The rule reflects the common law position and, accordingly, the authorities continue to be of relevance.

Page 82 of 126 Chapter 15 Discovery, Interrogation and Inspection

528 Mahon v Rahn (19 June 1996, unreported), although Brooke J’s decision was reversed on appeal, Mahon v Rahn [1998] QB 424

; [1997] 3 All ER 687 (CA)

of Serious Fraud Office [1999] 2 AC 177

, his view was later approved by the House of Lords in Taylor v Director

; [1998] 4 All ER 801 (HL)

529 (2008) 235 CLR 125; [2008] HCA 36 at [96]

.

.

530 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 the Commercial Arbitration Acts: see Chapter 29, 29.45 ff.

. Note also that a confidentiality regime applies under

531 Federal Court Rules 2011 (Cth) r 20.03; Court Procedures Rules 2006 (ACT) r 673; Uniform Civil Procedure Rules 2005 (NSW) r 21.7.

Restriction on subsequent use applied to subsequent legal proceedings

15.185 Until the English Court of Appeal’s decision in Riddick v Thames Board Mills Ltd ,532 virtually all reported cases on the topic were concerned with improper or collateral use of disclosed documents in contexts other than subsequent legal proceedings, such as giving publicity to information obtained from otherwise confidential documents.533 In Riddick, the Court of Appeal faced squarely and for the first time the question of whether the restriction on the use of disclosed documents applied to use in subsequent legal proceedings. It held that documents disclosed in one action may not be used by the receiving party in other proceedings. Furthermore, a litigant was not allowed to use information or knowledge derived from disclosed documents in order to bring fresh proceedings, even if it did not propose to use the disclosed documents in these later proceedings.534

532 [1977] QB 881

; [1977] 3 All ER 677(EWCA Civ)

.

533 See for instance Richardson v Hastings (1844) 7 Beav 354; 49 ER 1102 (1857) 23 Beav 338; 53 ER 133

; Williams v Prince of Wales Life, Etc, Co

; Hopkinson v Lord Burghley (1867) 2 Ch App 447

; Reynolds v Godlee (1858) 4

K & J 88; 70 ER 37; Tagg v South Devon Rly Co (1849) 12 Beav 151; 50 ER 1017 . For discussion, see P Prescott, ‘Improper Uses of Discovery’ (1978) 94 Law Quarterly Review 488; I Eagles, ‘Disclosure of Materials Obtained on Discovery’ (1984) 47 Modern Law Review 284. 534 Sybron Corporation v Barclays Bank plc [1985] Ch 299

.

15.186 Miller v Scorey 535 illustrates this principle. In the course of discovery in an action for the recovery of misappropriated commissions, the plaintiffs learned that the defendants had been involved in bribery. The plaintiffs brought fresh proceedings alleging bribery, but it was held that by so doing they were in breach of the prohibition on subsequent use and their action was therefore struck out as an abuse of process.

535 [1996] 3 All ER 18; [1996] 1 WLR 1122

‘The purpose of the proceedings’ test

.

Page 83 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.187 The purpose of the discovery process and other compulsory disclosure processes is to make all relevant evidence available for determining the issues in dispute. Therefore, a party which has obtained documents in the disclosure process may rely on them in the case in which they were obtained. However, since the prohibition on subsequent use applies to use in subsequent legal proceedings, as well as to other uses, questions may arise about the proper boundaries of the proceedings in which disclosure was given, to which we may refer as the original proceedings.536

536 For a detailed and powerful analysis of this test, see S Gibbons, ‘Subsequent Use of Disclosed Documents — the “Purpose of the Proceedings” Test’ (2001) 20 Civil Justice Quarterly 303.

15.188 It is accepted that ‘the purpose of the proceedings’ allows not only use in the very proceedings in which discovery is granted, but also uses that can legitimately be regarded as flowing from the purpose of the original proceedings.The House of Lords

Page 620 held in Crest Homes v Marks that where discovered documents reveal non-compliance with an earlier order in the same or a related proceeding they may be used to establish contempt of court, provided that this will not ‘occasion injustice’ to the document producer.537 It was suggested in that decision that materials seized as a result of search orders may be used more widely because the whole purpose of such orders is to obtain evidence without giving the defendant the opportunity of deciding for himself whether or not to make full and frank disclosure.538 In one case, when the plaintiffs learned in the course of discovery that the defendants no longer possessed certain key documents, they commenced an action for discovery against an employee of the defendants and relied on a document that the defendants had disclosed. It was held that such use was for the proper conduct of the first proceedings.539

537 [1987] AC 829

; [1987] 2 All ER 1074(HL)

. But see Cobra Golf Ltd v Rata [1998] Ch 109

; [1997] 2 All ER 150

. 538 Crest Homes v Marks [1987] AC 829 ; [1987] 2 All ER 1074 (HL) . The rationale of encouraging candour on the part of disclosing parties is beside the point in such situations, and the general limitation on use does not therefore apply. But see Cobra Golf Ltd v Rata [1998] Ch 109 Boswell [1991] Ch 512

; [1990] 3 All ER 303

; [1997] 2 All ER 150

. See also Tate Access Floors Inc v

. In Garvin v Domus Publishing Ltd [1989] Ch 335

; [1989] 2 All

ER 344 , it was held that using documents obtained in such orders for the purpose of proving contempt is not within the purpose of such orders. 539 Wilden Pump & Engineering Co v Fusfield [1985] FSR 581

.

15.189 In certain situations, as discussed above, discovery may be ordered for the purpose of facilitating other proceedings, as where a person is required to reveal the identity of a prospective defendant.540 The implied undertaking could not have been intended to forbid the deployment of documents for the very purpose for which

Page 84 of 126 Chapter 15 Discovery, Interrogation and Inspection they were obtained in the first place.541 The ‘purpose of the proceedings’ test may therefore be expanded to a test that says that documents obtained in discovery may be used for ‘the purpose for which the order was made, namely the purposes of that litigation then before the court between those parties’.542 In an application for preliminary discovery for disclosure of the identity of a wrongdoer, for instance, the purpose is to sue the wrongdoer and the information is usable for this purpose. In Omar v Omar ,543 the plaintiffs brought proceedings to trace missing assets and obtained discovery. It was held that such documents could be used for all purposes connected with the recovery of the property, including obtaining interim relief, such as a freezing order, amending the statement of claim to add a personal claim in respect of the missing assets, pursuing recovery in foreign proceedings and even suing other persons who held the property. Emphasis was placed on the fact that the plaintiffs were not using the documents to found a fresh cause of action, but only to enforce the rights which formed the basis of the tracing claim. In Sybron Corporation v Barclays Bank plc ,544 it was held that the

Page 621 undertaking did not prevent a party from joining another party to the proceedings in light of information obtained from discovery.

540 Norwich Pharmacal Co v Customs and Excise Commissioners [1973] 2 All ER 943

. See 15.127 ff.

541 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 ; [1981] 2 All ER 76 . However, one should safeguard against the possibility of confusing the ‘purpose of proceedings’ test with a ‘purpose of disclosure’test; cf Savings & Investment Bank v Gray (10 August 1990, unreported) (CA). 542 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878; [1991] 1 WLR 756 respectively. 543 [1995] 3 All ER 571; [1995] 1 WLR 1428 544 [1985] Ch 299

at 238

at 886and 765

.

per Scott J.

15.190 ‘The purpose of the proceedings’ test appears to be flexible. It permits the use of disclosed documents for a variety of purposes that go beyond, but are closely connected to, the proceedings in which the relevant disclosure was made. But the outer bounds of the test are far from clear, and this uncertainty has the potential to encourage satellite litigation about subsequent use.545 It is unsafe to proceed on the assumption that subsequent use would be permitted in other proceedings brought to pursue the same underlying interest for which the original proceedings were brought. The safest course to take where there is doubt about the propriety of the use of discovered documents is to seek either leave of the court or the consent of the producer of the documents in advance of using the documents.

545 S Gibbons, ‘Subsequent Use of Disclosed Documents — the “Purpose of the Proceedings” Test’ (2001) 20 Civil Justice Quarterly 303.

Release from the undertaking

15.191 Even if documents do come within the implied undertaking prohibiting those documents from subsequent use, the court has the discretion release a party from its undertaking if there are special circumstances.546 The main purpose of the power is to enable the court to avoid harsh and unjust consequences of the implied undertaking. Suppose, for instance, that documents are discovered in litigation for tort, which reveal that the defendant had stolen the

Page 85 of 126 Chapter 15 Discovery, Interrogation and Inspection plaintiff’s property. It would be unjust if the plaintiff was prevented from bringing proceedings for the recovery of converted property and from adducing in evidence the documents so discovered. Similarly, permission would be given to use documents disclosed in a tracing claim in order to sue other persons in respect of the same property.547 Permission may be given to a plaintiff who obtained documents in one defamation action to use them in supporting a defamation action against a non-party in order to clear his or her name.548 The resolution of an application for permission requires close examination of the issues, of the proposed use and of the parties’ conflicting interests and thus calls for extensive argument and detailed judicial examination.549

546 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3 [2015] NSWSC 1780

.

547 Omar v Omar [1995] 3 All ER 571; [1995] 1 WLR 1428 748; [1992] 1 WLR 919

; New South Wales v McCarthy

. Cf Bank of Crete SA v Koskotas (No 2) [1993] 1 All ER

.

548 C v News Group Newspapers Ltd [2002] EWHC 1101 (QB)

.

549 See for instance Tassilo Bonzel & Schneider (Europe) AG v Intervention [1991] RPC 43 Australia Pty Ltd v Axion Molecular Pty Ltd [2013] NSWSC 665 at [21]

; Global Medical Solutions

per Stevenson J.

15.192 The fact that the party seeking a release requires the documents in order to prosecute its case in subsequent proceedings is not by itself sufficient.550 Where the subsequent use of disclosed documents is in pursuit of a legitimate claim or defence the court should not, it is suggested, refuse leave to use the disclosed documents, unless there are some special factors rendering such use unfair,as where subsequent use would

Page 622 infringe legal professional privilege.551 It has been held in A v A (Ancillary Relief); B v B (Ancillary Relief) 552 that leave for subsequent use may be given when it is in the public interest to give leave. Charles J would have been willing to allow disclosed information to be passed on to the tax authorities because there is a strong public interest that all tax and revenue penalties due should be paid and that evaders of tax should be convicted and sentenced. In another case, Eady J was willing to allow ‘carefully defined’ reuse in order to pursue a remedy other than through ‘civil proceedings in the conventional sense’, on the grounds that public policy encourages the pursuit of remedies via self-regulatory or statutory bodies without having to engage the full panoply of court litigation.553

550 Riddick v Thames Board Mills [1977] QB 881

; [1977] 3 All ER 677 (CA)

.

551 Bourns Inc v Raychem Corpn [1999] 3 All ER 154 (CA). 552 [2000] 1 FLR 701 (Fam). 553 Chase v News Group Newspapers [2002] EWHC 1101 (QB)

.

15.193 It might further be argued that a restraint which prohibits one party from using documents in subsequent proceedings but leaves the other free to elect whether or not to do so amounts to an infringement of the right to equality of arms. Of course, the right of access to court is not absolute. It may be constrained in order to protect some other legitimate interest. But any such limitation must be justified by reference to some compelling public or

Page 86 of 126 Chapter 15 Discovery, Interrogation and Inspection private interest and must be proportionate to the legitimate interest it serves. It is suggested that only in the most exceptional circumstances would it be justified and proportionate to refuse permission to use disclosed information in order to prosecute a right.

15.194 It is therefore reasonable to conclude that permission to use disclosed documents in subsequent proceedings should normally be given where the applicant wishes to adduce them, or otherwise use information derived from them, in subsequent legal proceedings that are otherwise reasonable and legitimate bearing in mind all the circumstances.

Documents referred to in open court released from the undertaking

15.195 There is no limitation on use where a document has been read to or by the court, or referred to, at a hearing which has been held in public. It is sufficient that the judge has read the documents, or that reference was made to them at a hearing or in witness statements. The same goes for proceedings held in chambers, provided they are not secret.

15.196 The freedom to use disclosed material that has been brought out in open court is dictated by the basic principle of publicity of legal proceedings.554 Given that what has passed at a public hearing may be publicised and disseminated by parties, or by anyone else, there is no justification for prohibiting reliance on such materials in other legal proceedings. Indeed, such prohibition could only undermine public confidence in the administration of justice.

Page 623

554 See also Chapter 3, 3.46 ff. Mahon v Rahn [1998] QB 424

at 452

; [1997] 3 All ER 687 at 711,714

Icos Ltd v Pfizer Ltd [2002] EWCA Civ 02; [2002] 1 All ER 842; [2002] 1 WLR 2253

(CA); Lilly

.

Protected confidences

15.197 The rules of procedure are principally concerned to ensure that the discovery process is conducted with efficiency, proportionality and, more generally, with a view to furthering the overriding objective. However, quite apart from its managerial discretion under these rules, the court has a longstanding jurisdiction to limit discovery and other forms of disclosure in order to protect other worthwhile interests. These may be interests recognised by the common law and in equity, statute, or by popular morality. The purpose of this section is to identify some of these interests and discuss their potential effect on the discovery and other disclosure obligations.

Page 87 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.198 Subject to certain well-defined exceptions, such as legal professional privilege, without prejudice privilege and the privilege against self-incrimination, no person has a right to withhold from the court information that is relevant to an issue before the court. Neither a party nor a non-party is entitled to invoke privacy or an obligation of confidentiality as a reason for refusing discovery, producing documents or providing information, if it is required in a legal process. This does not mean that the court must completely ignore the effect that an order for discovery might have on an individual’s privacy or a person’s right to maintain certain information as confidential. On the contrary, as a matter of general principle,the court may afford protection to the interests of privacy and confidentiality to the extent that it can be done without compromising the administration of justice. The court may, as we observed in Chapter 3, hold proceedings behind closed doors in order to maintain the secrecy of sensitive commercial information.555 Such a procedure enables the court to consider the confidential material when deciding the issues without harming its secrecy. Similarly, the court may have regard to the need to protect privacy and confidentiality when making inter partes orders of discovery and inspection, or when it is asked to order a non-party to disclose documents or other information, whether by way of a subpoena or third party discovery. While information disclosed in litigation is protected by the implied undertaking,the party disclosing such information may still be concerned about the possible misuse of that information. Furthermore, the undertaking ceases to apply once the information is tendered into evidence.

555 See in particular Chapter 3, 3.62 ff.

Restricting the scope of the disclosure obligation

15.199 A tension may arise between, on the one hand, the interest of the administration of justice in seeing that disputes are resolved in accordance with all the relevant evidence, and, on the other hand, the interests of third parties in protecting their confidences and private affairs. This tension may arise where discovery of documents is sought from a party or a stranger to the litigation, or during the trial when witnesses are called to testify. Where the court is asked to limit disclosure or the requirement to testify in order to protect some other interest, the starting point must be that no one has a right to withhold documents or information on the grounds that to do so would

Page 624 violate an obligation of confidence or would amount to an invasion of privacy.556 However, the court may consider such interests in the exercise of its discretion. In Church of Scientology of California v Department of Health and Social Security ,557 Templeman LJ said that: The first principle is that the court shall not order discovery which is not necessary for the fair disposal of the action. It follows that the court has the power to impose restrictions which ensure that the ambit of discovery is not wider than is necessary to dispose fairly of the action. The second principle is that the court may act to prevent any possibility of conduct which might constitute a contempt of court. The third principle is that the court may act to prevent what may be an abuse of the process of the court. Of course a strong case must be made out for the court to impose restrictions, and the court will endeavour to ensure that the litigants are not prejudiced by the restrictions in the reasonable prosecution of their claim …

556 Alfred Crompton Amusement Machines Ltd v Comrs of Customs and Excise (No 2) [1974] AC 405 1169

; [1973] 2 All ER

. See also 15.210; E Bray, The Principles and Practice of Discovery, London, 1885, pp 302–3; Chapter 3.

Page 88 of 126 Chapter 15 Discovery, Interrogation and Inspection 557 [1979] 1 WLR 723 at 746 , applied in Magellan Petroleum Aust Ltd v Sagasco Amadeus Pty Ltd (1993) 25 IPR 455 (QSC) at 459 per White J. See also Science Research Council v Nassé; BL Cars Ltd (formerly Leyland Cars) v Vyas [1980] AC 1028 (HL).

15.200 An illustration of the exercise of this discretion is provided by Science Research Council v Nassé.558 The House of Lords dealt with two cases in which plaintiffs complained of discrimination in employment and sought discovery of confidential reports relating to other candidates for appointment. It was held that when considering whether to order discovery the court should have regard to the legitimate interest of protecting confidentiality and privacy. The court should not order discovery unless it was necessary either for disposing fairly of the proceedings or for saving costs. In reaching its conclusion the court should have regard: (a) to the fact that the documents were confidential and that to order disclosure would involve a breach of confidence; and (b) to the extent to which the interests of third parties would be affected by disclosure.

558 Science Research Council v Nassé; BL Cars Ltd (formerly Leyland Cars) v Vyas [1980] AC 1028 673

; [1979] 3 All ER

.

15.201 It seems clear from this decision that a two-stage process is involved. In the first stage, the court must consider whether the disclosure of the information, whether by discovery or other process, is necessary for disposing fairly of the issues.559 If, for instance, the information can be obtained from other sources without violating confidence, it cannot be regarded as necessary and disclosure should not be ordered. Where, however, disclosure is necessary for fairly disposing of the proceedings, the court should proceed to the second stage, and consider whether justice could be done without compromising the confidential nature of the information. To this end it may inspect the documents and consider whether confidentiality could be protected by special measures, such as covering up confidential but irrelevant parts of the documents, substituting anonymous references for specific names, or, in rare cases, a

Page 625 hearing in camera. If such measures are not available and disclosure is necessary for fairly disposing of the proceedings, disclosure must be ordered notwithstanding the documents’ confidentiality.

559 See also Ammerlaan v Distillers Co (Bio-chemicals) Ltd (1992) 58 SASR 164 at 166–8

Confidentiality and commercial sensitivity Protection of confidential information

15.202

per Millhouse J.

Page 89 of 126 Chapter 15 Discovery, Interrogation and Inspection Situations may arise where the subject matter of the proceedings concerns the protection of confidential information. For example, a plaintiff may be seeking an injunction to restrain the misuse of confidential information by a former employee.In cases involving breaches of confidence, courts have stressed the need for plaintiffs to describe the alleged confidential information with specificity and not in ‘global terms’.560 This gives rise to a dilemma for the plaintiff: in order for it to protect its confidential information, it may be required to disclose that information to the court, being a public forum. A similar situation may arise where two trade rivals are in a dispute and each is required to discover documents which are commercially sensitive. The potential harm arising from the disclosure is greater in this situation because there is a risk that each may use that information to the commercial detriment of the other. The potential for misuse is not limited to deliberate misuse. For example, if a party was to be shown documents recording a secret formula used by an opponent, it would be difficult for that party to forget what it saw or to compartmentalise its knowledge so that it only uses the information it has received for the purpose of the litigation.

560 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 10 IPR 53 at 62 Australia Pty Ltd v Ritchie (2008) 77 IPR 306; [2008] VSC at [351]–[352]

per Gummow J; GlaxoSmithKline

per Harper J.

15.203 In situations where a party is concerned that its confidential information will be misused by its opponent, the court may limit access to discovery or information to the opponent’s lawyers and experts who may require access to such information.561 Usually this will not present a problem where the documents in question are so ‘esoterically technical’ in nature that it will suffice to limit access to an independent expert engaged by the opponent.562 Unavoidably, though, a lawyer may need to show certain confidential documents to his or her client for the purpose of obtaining instructions for the conduct of the litigation. In considering whether to restrict a party from having access to confidential information, the court will balance the risk of inadvertent or accidental disclosure by that person against the need for that person to have access whether it is to receive advice or to provide instructions. Ultimately, a pragmatic approach may be needed. For example, if the client is a corporation, the court may limit access to an in-house legal counsel of the corporation subject to the giving of an undertaking that the documents be kept confidential. This minimises the misuse of the confidential information because the in-house legal counsel is unlikely to be operating in a part of the business of the corporation which could misuse the information.563

Page 626

561 Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at 360 v Sagasco Amadeus Pty Ltd (1993) 25 IPR 455 34

per Buckley LJ; Magellan Petroleum Aust Ltd

; Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR

.

562 Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at 360 563 AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 at [10]

per Buckley LJ. per Besanko J.

Suppression orders and non-publication orders to protect confidentiality

15.204 Courts in each jurisdiction have the power to make orders to restrict or prohibit the disclosure or publication of information, even where a document recording that information has been read to or by the court, or referred to at a

Page 90 of 126 Chapter 15 Discovery, Interrogation and Inspection hearing which has been held in public.564 A model law developed by the Standing Committee of Attorneys-General has been implemented in some jurisdictions, such as the Federal Court. This section discusses the application of the model law to confidential information by reference to the procedure of the Federal Court.

564 For example, Judiciary Act 1903 (Cth) Pt XAA; Federal Court of Australia Act 1976 (Cth) Pt VAA; Evidence (Miscellaneous Provisions) Act 1991 (ACT) Ch 8; Court Suppression and Non-publication Orders Act 2010 (NSW); Open Courts Act 2013 (Vic).

15.205 The court has the power make a suppression order (an order prohibiting or restricting the disclosure of information) or non-publication order (an order prohibiting or restricting the publication of information), or both.565 The orders may be made on various grounds, including to prevent the prejudice to the interests of the Commonwealth or a state or territory in relation to national or international security, or to protect the safety of any person.566 Critically, though, the order must state the ground on which it is made.567 In relation to the protection of confidential information, the court may make a suppression or non-publication order on the ground that it is necessary to prevent prejudice to the proper administration of justice.568 In Australian Broadcasting Commission v Parish ,569 Bowen CJ explained that the public interest in doing justice would be hampered if the very proceeding in which confidentiality was sought to be protected was destroyed before the result of the proceedings could be determined.

565 Federal Court of Australia Act 1976 (Cth) ss 37AA and 37AF. 566 Federal Court of Australia Act 1976 (Cth) s 37AG(1). 567 Federal Court of Australia Act 1976 (Cth) s 37AG(2). 568 Federal Court of Australia Act 1976 (Cth) s 37AG(1)(a). 569 (1980) 29 ALR 228

.

15.206 The starting principle for the court in determining whether to make a suppression or non-publication order is that public interest in open justice is a primary objective of the administration of justice which must be safeguarded.570 Where an application is made for an order restricting use, it is useful to refer to the considerations set out by Buxton LJ in Lilly Icos Ltd v Pfizer Ltd.571 Given the importance of the principle of publicity, the court requires the party applying for the order to establish a convincing justification for departing from the general principle. The court must bear in mind that the principle of publicity is intended to enable the public to scrutinise legal decisions and the starting point must therefore be that very good reasons are required for departing from the norm. The court should not, as a general rule, suppress the publication of documents that are essential to the understanding of the court’s judgment. Although the court may take into account the extent to which the document was central to the proceedings,

Page 627 it should start from the assumption that all documents in the case are necessary and relevant for the purpose of understanding the court’s judgment and should not accede to general arguments that it would be possible to understand the trial and its outcome without access to a particular document. Nor should the court accept bare assertions of confidentiality and of the damage that would be done by publication, even if supported by both parties. The court should therefore require an applicant to put forward specific reasons why subsequent use of a document that has already been brought out in open court would be damaging. In Hogan v Australian Crime Commission ,572 the High Court emphasised that an order should not be made unless it is necessary to prevent the prejudice to the

Page 91 of 126 Chapter 15 Discovery, Interrogation and Inspection proper administration of justice, and not because it is ‘convenient, reasonable or sensible,or to serve some notion of the public interest’.

570 Federal Court of Australia Act 1976 (Cth) s 37AE. For further information regarding the publicity principle, see Chapter 3, 3.48 ff. 571 Lilly Icos Ltd v Pfizer Ltd [2002] EWCA Civ 02 at [25]; [2002]1 All ER 842 at [25]; [2002] 1 WLR 2253 572 (2010) 240 CLR 651; [2010] HCA 21 at [31]

at [25]

.

.

Professional confidential communications

15.207 At common law, professional privilege is confined to lawyer–client relationships.573 However, under the Uniform Evidence Acts of the Australian Capital Territory, New South Wales and Tasmania,574 privilege may attach to confidential communications made by a person (the protected confider) to another person (the confidant) in the course of a relationship in which the confidant was acting in a professional capacity and was under an express or implied obligation not to disclose the contents of the communication.575 Such confidential communications are called protected confidences. They may include, for example, communications between a doctor and patient in the course of medical treatment.576 A similar form of privilege applies in the Australian Capital Territory, South Australia and Western Australia concerning disclosures made between the victim of a sexual assault and a professional providing counselling services.577

573 Greenlaw v R (1838) 1 Beav 137 (doctor and patient); R (on the application of Prudential plc)v Special Commissioner of Income Tax [2013] UKSC 1

. See also discussion in Chapter 16, 16.37–16.38.

574 Evidence Act 2011 (ACT) Div 3.10.1A; Evidence Act 1995 (NSW) Pt 3.10 Div 1A; Evidence Act 2001 (Tas) Pt 3.10 Div 1A. 575 Evidence Act 2011 (ACT) s 126A(1); Evidence Act 1995 (NSW) s 126A(1); Evidence Act 2001 (Tas) s 126A(1). The privilege may be invoked in respect of disclosure requirements: s 131A. 576 Mok v NSW Crime Commission [2002] NSWCA 53 at [23] per Mason P. Legislation in some jurisdictions prevents the disclosure in proceedings by medical practitioners of communications with patients, such as Evidence Act 2001 (Tas) s 127A; and Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 28. 577 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 58; Evidence Act 1929 (SA) s 67F; Evidence Act 1906 (WA) ss 19A–19B.

15.208 Unlike legal professional privilege, this statutory form of privilege is not absolute. Rather, for protected communications to be immune from disclosure, the court must be satisfied that it is likely that harm would or might be caused to the protected confider if it is required to disclose the protected confidence, and the nature and extent of that harm outweighs the desirability of the evidence being given.578 The legislation sets out a list of factors that the court may take into account in balancing

Page 628 the potential harm of disclosure and the desirability of requiring disclosure, including the probative value and importance of the communication in the proceedings, the availability of other evidence concerning the matters that are the subject of the communication, whether there has already been a disclosure of the contents of the

Page 92 of 126 Chapter 15 Discovery, Interrogation and Inspection communication, and the public interest in preserving the confidentiality of protected confidences.579 The court may also take into account the variety of measures available to the court, such as suppression orders, to limit the harm resulting from the disclosure.580

578 Evidence Act 2011 (ACT) s 126B(3); Evidence Act 1995 (NSW) s 126B(3); Evidence Act 2001 (Tas) s 126B(3). Under s 126A(1), harm is defined to include actual physical bodily harm,financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). 579 Evidence Act 2011 (ACT) s 126B(4); Evidence Act 1995 (NSW) s 126B(4); Evidence Act 2001 (Tas) s 126B(4). 580 Evidence Act 2011 (ACT) s 126B(4)(f); Evidence Act 1995 (NSW) s 126B(4)(f); Evidence Act 2001 (Tas) s 126B(4)(f); Director-General, Department of Community Services v D [2006] NSWSC 827

.

Personal privacy

15.209 Various statutes prevent the dissemination by one party of personal details kept by that party to another party. For example, the Privacy Act 1988 (Cth)provides that certain entities which hold personal information about an individual (including opinions about the individual) collected for a particular purpose must not use or disclose that information unless the individual has consented to the disclosure or that certain exceptions apply.581 A further example is health records legislation which restricts the collection and usage of sensitive health information of individuals.582 An exception to the restriction on disclosure exists in the legislation in cases where the custodian of the information is ordered to produce the information under a court order, such as discovery or a subpoena to produce.583

581 Privacy Act 1988 (Cth) Sch 1 (Australian Privacy Principles) APP 6.1. The principle applies to Commonwealth Government bodies and to various organisations:see s 6C. 582 For example, Health Records and Information Privacy Act 2002 (NSW); Health Records Act 2001 (Vic). 583 For example, Privacy Act 1988 (Cth) Sch 1 (Australian Privacy Principles) APP 2.2(a), APP 6.2(b) and APP 8.2(c).

15.210 In England and Wales, and other European jurisdictions, the issue of the protection of privacy is a matter dealt with expressly in Art 8 of the European Convention on Human Rights. Article 8(1) protects the right to private life and may be invoked to resist disclosure of personal information.584 But Art 8(2) allows interference with the right to private life to the extent that this is ‘in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others’.Therefore, it has been held, where disclosure is necessary in order to establish a cause of action, such as a cause arising out of discrimination, the court may order discovery notwithstanding the infringement of the right to privacy.585 In Golden Eye (International) Ltd v Telefonica UK Ltd,586 a case concerning the disclosure by ISPs of

Page 629 the contact details of users alleged to have engaged in copyright infringement, Arnold J held that an ‘ultimate balancing test’ should be applied between an individual’s right to privacy, and the right of the plaintiff to enforce its rights in the litigation.587 It was further held that no one right took precedence over the other and that where there was a conflict between such rights, ‘intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary’.588 In these situations, English courts have applied a test of proportionality, namely to allow an interference of a right to privacy only to the extent it is proportionate to enforce the rights of the party seeking access to the personal information.589

Page 93 of 126 Chapter 15 Discovery, Interrogation and Inspection

584 MS v Sweden (1997) 28 EHRR 313 parte LM [2000] 1 FCR 736.

; R v Local Authority in the Midlands and A Police Authority in the Midlands; Ex

585 MS v Sweden (1997) 28 EHRR 313 ; R v Secretary of State for the Home Dept; Ex parte Kingdom of Belgium, Ex parte Amnesty International (15 February 2000, unreported). 586 Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 1152 (Ch)

.

587 Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 1152 (Ch) at [117]

per Arnold J. Decision

reversed on appeal in Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWCA Civ 1740 court agreed with the statement of law espoused by Arnold J. 588 Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 1152 (Ch) at [117]

, although the

.

589 The Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) (in liq) [2012] UKSC 55 at [17]

per Lord Kerr SCJ.

15.211 In Australia, despite legislation allowing for the production of personal information and there otherwise being no express right to privacy, courts nonetheless have had regard for the privacy of individuals when ordering discovery. In Dallas Buyers Club LLC v iiNet Ltd ,590 the owner of copyright in a cinematograph film sought an order for preliminary discovery against certain internet service providers (ISPs) whose subscribers, it was alleged, engaged in copyright infringement by making unauthorised copies of the film available through a BitTorrent website. The copyright owner was seeking discovery of the details of the users alleged to have engaged in the conduct. The ISPs argued that the application should be refused, in part, because the privacy of their users should be adequately protected. The ISPs were concerned that the copyright owner may use the information to send out ‘speculative invoices’, a practice in which an aggressive letter is sent to an alleged intellectual property infringer demanding the payment of a large sum of money and indicating that if the sum is not paid, the owner will commence legal proceedings seeking substantial damages that are higher than the amount demanded in the letter.

590 [2015] FCA 317

.

15.212 The Federal Court acknowledged that the ISPs had obligations under the Telecommunications Act 1997 (Cth)591 to protect the privacy of users’ telecommunications activity, but that this was subject to an exception in respect of disclosure required by the law.592 This is substantially synonymous with the regime in the Privacy Act 1988 (Cth). Perram J held that where there is a clash between the right of a party to obtain access to information to aid the enforcement of its rights on the one hand, and the right to privacy on the other, the court will attempt to ‘try and accommodate both rights as best they can’ by imposing safeguards on the use of the information by the party to whom it is disclosed.593 In this case, the court achieved this by limiting the use of the information to seeking to identify end-users using BitTorrent to download the film, suing end-users for infringement, and negotiation with end-

Page 630 users regarding their liability for infringement.594 The court also required the owner to provide a copy of the form of letter it proposed to send to each of the relevant alleged infringing users. Perram J acknowledged that this approach was similar to that taken in Golden Eye.

Page 94 of 126 Chapter 15 Discovery, Interrogation and Inspection

591 Telecommunications Act 1997 (Cth) s 276(1)(a)(iv). 592 Telecommunications Act 1997 (Cth) s 280. 593 [2015] FCA 317 at [86]

.

594 [2015] FCA 317 at [87]

. See also Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422

.

Protection of journalistic sources of information

15.213 The need to protect journalistic sources of information has attracted special attention due to the importance that is attached to the freedom of the press in a democratic society.595 Freedom of the press has received strong protection under the common law.596 On occasion, the need to foster this freedom may come into conflict with the need to secure information necessary to enable the court to determine the truth concerning an issue in legal proceedings. The conflict may be particularly acute where a party requires disclosure of the source from which a journalist has derived his or her information.

595 See R v Secretary of State for the Home Department; Ex parte Simms [1999] 3 All ER 400

; Cowper v Fairfax Media

Publications Pty Ltd; Cowper v Australian Broadcasting Corporation [2016] NSWSC 1614 at [54] 596 Ashworth Hospital Authority v MGN [2001] 1 All ER 991

per Rothman J.

.

The ‘newspaper rule’

15.214 Under the common law, the ‘newspaper rule’ has operated as a judicial practice of refusing to compel disclosure by a journalist of his or her confidential sources,597 whether by discovery, subpoena or other process. The rule has often been invoked to prevent the disclosure of journalistic sources in defamation proceedings brought against newspaper publishers. There are two bases for the rule. First, it is the responsibility of a newspaper publisher to ensure that information it has been provided by an informant is accurate. That is, the publisher’s responsibility is ‘co-extensive’ with the responsibility of the informant.598 On this view, it is unnecessary to require the disclosure of the source of information.599 The second basis for the rule is to protect the public interest. To compel the disclosure of the identity of a journalist’s source would have a ‘chilling effect’ in that informants would not reveal information of public importance to the media. In McGuinness v Attorney-General (Vic) ,600 Dixon J explained: The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter

Page 631 contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity. … The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, of a newspaper to compel

Page 95 of 126 Chapter 15 Discovery, Interrogation and Inspection discovery of the name of his informants. It ‘rests not on a principle of privilege but on the limitations of discovery’,to quote the comment of Professor Wigmore, who expresses himself somewhat strongly against the pretensions to a privilege on the part of journalists (Treatise on Evidence, 2nd ed, vol 5, sec 2286, n 7).601

597 Liu v The Age Company Ltd (2012) 285 ALR 386; [2012] NSWSC 12 at [42] Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 598 Liu v The Age Company Ltd [2016] NSWCA 115 at [121]

per McCallum J, affirmed in The Age

.

per McColl JA.

599 Originally, it was the view that the source of the information was irrelevant, such that an application for discovery of such information was fishing. This view fell out of favour as courts recognised that the source of information may be relevant to the issue of whether the publication was malicious. For further background, see John Fairfax & Sons Ltd v Cojuango (1988) 82 ALR 1 at 5 600 (1940) 63 CLR 73 at 104–5

per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ. .

601 See also Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 at 166 Woodhouse J; Adam v Fisher (1914) 30 TLR 288

; Steel Corp v Granada Television Ltd [1981] AC 1096

per .

15.215 The rule covers only the identity of a journalist’s source, not the information supplied to the journalist.602 Furthermore, it does not confer an immunity on the media from liability for defamation as a result of receiving information from confidential sources. The rule is not a rule of evidence but rather a rule of judicial practice.603 It guides the court’s discretion as to the scope of discovery to be allowed.604

602 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 at 252–3 603 John Fairfax & Sons Ltd v Cojuango (1988) 82 ALR 1 at 7

per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ;

Liu v The Age Company Ltd (2012) 285 ALR 386; [2012] NSWSC 12 at [42] 604 Liu v The Age Company Ltd [2016] NSWCA 115 at [125]

per Hunt J.

per McCallum J.

per McColl JA.

15.216 Notwithstanding the public importance of the newspaper rule, it is not absolute in that the court continues to retain the discretion to compel disclosure of a journalist’s source where it is necessary to do justice between the parties.605 Where the plaintiff has an effective remedy against a defendant without the need for the disclosure of a journalist’s source, the court will refuse to require the disclosure.606 This issue was considered in Liu v The Age Company Ltd ,607 which concerned newspaper articles alleging that the plaintiff made certain payments to the former Minister for Defence. The plaintiff sued the newspaper for defamation. According to the newspaper, these allegations were evidenced by confidentially sourced documents purporting to be the plaintiff ’s business records and it, accordingly, relied upon a defence of qualified privilege. The plaintiff contended that the records were falsified and she sought an order for preliminary discovery from the newspaper requiring the disclosure of the identities of those persons who supplied the documents to the newspaper. The plaintiff argued that if the defence of qualified privilege was

Page 96 of 126 Chapter 15 Discovery, Interrogation and Inspection sustained, and the identity of the informant was not disclosed,she would be denied an effective remedy. On the basis that the defence might succeed, McCallum J made

Page 632 the order for preliminary discovery,608 which was upheld by the New South Wales Court of Appeal.609 Subsequently, the newspaper sought to re-visit the issue by seeking a stay of the preliminary discovery after it made an undertaking not to rely on the qualified privilege defence.610 On appeal, McColl JA held that despite the abandonment and undertaking by the newspaper, there was a risk that the plaintiff ’s case would fail if she was not afforded an opportunity to test fully the issue of the falsification of the documents.611

605 British Steel Corp v Granada Television Ltd [1981] AC 1096 Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 at [8]

(HL) at 1169 per Lord Wilberforce; Carolan v Fairfax per McCallum J.

606 John Fairfax & Sons Ltd v Cojuango (1988) 165 CLR 346 at 357

per Mason CJ, Wilson, Deane, Toohey and

Gaudron JJ; Liu v The Age Company Ltd [2012] NSWSC 12 at [115]

per McCallum J, upheld in The Age Company

Ltd v Liu [2013] NSWCA 26 607 [2016] NSWCA 115

.

.

608 Liu v The Age Company Ltd [2012] NSWSC 12

.

609 The Age Company Ltd v Liu [2013] NSWCA 26

.

610 Liu v The Age Company Ltd [2015] NSWSC 276

.

611 Liu v The Age Company Ltd [2016] NSWCA 276 at [225]

.

Statutory journalistic privilege

15.217 A statutory formulation of the newspaper rule has now been enshrined in the Uniform Evidence Acts of the Commonwealth, Australian Capital Territory, New South Wales and Victoria, as well as in Western Australia.612 Section 126K(1) of the Uniform Evidence Acts provides that if a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer a question or produce any document that would disclose the identity of the informant or enable the identity to be ascertained.613 The statutory form of the privilege is premised on there being an anterior promise by the journalist to keep the informant’s identity confidential, which is not a requirement under the common law newspaper rule.614 The privilege will not apply if the identity of the informant is already in the public domain.615

612 Evidence Act 1995 (Cth) Pt 3.10 Div 1C; Evidence Act 2011 (ACT) Pt 3.10 Div 3.10.1C; Evidence Act 1995 (NSW) Pt 3.10 Div 1C; Evidence Act 2008 (Vic) Pt 3.10 Div 1C; Evidence Act 1906 (WA) ss 20G–20M. 613 See also Evidence Act 1906 (WA) s 20I. 614 Ashby v Commonwealth (No 2) (2012) 203 FCR 440; [2012] FCA 766 at [19]

per Rares J.

615 Ashby v Commonwealth (No 2) (2012) 203 FCR 440; [2012] FCA 766 at [31]–[32]

15.218

per Rares J.

Page 97 of 126 Chapter 15 Discovery, Interrogation and Inspection A journalist is defined in the legislation to mean a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information would be published in a news medium.616 In the Victorian version of the Uniform Evidence Act only, the court is to have regard to a list of factors in determining whether a person is a journalist, such as whether a significant proportion of the person’s professional activity involves collecting and preparing information having the character of news, or commenting or providing opinion or analysis of news or current affairs for dissemination in a news medium.617

616 Uniform Evidence Acts s 126J. 617 Evidence Act 2008 (Vic) s 126J(2).

15.219 Much like the newspaper rule, journalistic privilege is not absolute. The court may, on the application of a party, rule that the privilege does not apply if it is satisfied that having regard to the issues in the proceedings, the public interest in the disclosure of the identity outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person; and

Page 633   (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly, also, in the ability of the news media to access sources of facts.618 This qualification to the privilege was considered in Madafferi v The Age Company Ltd ,619 in which the plaintiff sued a newspaper after it had published articles written by an investigative journalist asserting that the plaintiff was involved in certain criminal dealings. The plaintiff sought further and better particulars of the newspaper’s defence, including the identity of the journalist’s sources. Dixon J was not satisfied that the public interest favoured disclosure of such information. His Honour accepted that the journalist expressed fears for his safety and professional career, and the safety of the informants, if such information was to be disclosed.620 It was also accepted that the plaintiff would not be ‘significantly disadvantaged’ by the newspaper referring to confidential sources to demonstrate how it acted reasonably in publishing the articles.621

618 Uniform Evidence Acts s 126K(2); Evidence Act 1906 (WA) s 20J(2). 619 [2015] VSC 687

.

620 [2015] VSC 687 at [118]–[119] 621 [2015] VSC 687 at [35]

.

.

Religious confessions

15.220 In the Uniform Evidence Act jurisdictions, a person who is a member of the clergy of any church or religious denomination is entitled to refuse to disclose the contents of any religious confession made to the member while he or she was a member of the clergy.622 For the privilege to apply, the confession must be made to the member of the

Page 98 of 126 Chapter 15 Discovery, Interrogation and Inspection clergy in the member’s professional capacity and according to the ritual of the church or religious denomination of the member.623

622 Evidence Act 1995 (Cth) s 127(1); Evidence Act 2011 (ACT) s 127(1); Evidence Act 1995 (NSW) s 127(1); Evidence Act 2004 (NI) s 127(1); Evidence (National Uniform Legislation) Act (NT) s 127(1); Evidence Act 2001 (Tas) s 127(1); Evidence Act 2008 (Vic) s 127(1). The privilege does not apply if it was made for a criminal purpose: subs (2). By operation of s 131A, confessions are immune from disclosure requirements. For further discussion in relation to privilege attaching to religious confessions, see J D Heydon, Cross on Evidence, LexisNexis (online edition), [25310]– [25320]. 623 Uniform Evidence Acts s 127(4).

Notices to admit

15.221 As explained in Chapter 7, in proceedings with pleadings, a defendant in its defence may admit any allegation made against it in the statement of claim.624 The effect of the admission is to reduce the scope of the issues in dispute between the parties. However, admissions are not confined to pleadings. A party seeking to prove a fact (or facts) or the authenticity of a particular document (or documents) in a proceeding may serve a notice to admit on requesting the other party to admit that fact or the

Page 634 authenticity of the document.625 Unlike other processes considered in this chapter, a notice to admit does not require the recipient of the notice to provide any information. Rather, the purpose of the procedure is to elicit an admission of a proposition made in the notice which can be used at trial in lieu of documents or testimony. That is, the procedure avoids the need for the issuing party to seek the production or disclosure of information from the recipient or to carry out an inspection.

624 See Chapter 7, 7.26 ff. 625 Federal Court Rules 2011 (Cth) r 22.01; Court Procedures Rules 2006 (ACT) r 491(1); Uniform Civil Procedure Rules 2005 (NSW) rr 17.3–17.4; Supreme Court Rules (NT) rr 35.03 and 35.05; Uniform Civil Procedure Rules 1999(Qld) r 189; Supreme Court Civil Rules 2006 (SA) r 156 (in relation to ‘assertions’); Supreme Court Rules 2000 (Tas) rr 399 and 401; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 35.03 and 35.05; Rules of the Supreme Court 1971 (WA) O 30 rr 2 and 5. There is no express rule in respect of High Court proceedings.

15.222 A party that is served with a notice to admit is taken to have admitted the fact or the authenticity of the document described in the notice unless that party serves (usually within 14 days) a notice disputing the fact or authenticity.626 The admission is generally confined to the proceedings in which it is given.627 Where the admissions given by a party in response to notices together with those in the pleadings are sufficient to establish that a party is entitled to judgment, the court may proceed to give judgment without the need for a trial.628

626 Federal Court Rules 2011 (Cth) rr 22.02 and 22.05; Court Procedures Rules 2006 (ACT) r 491(2); Uniform Civil Procedure Rules 2005 (NSW) r 17.3; Supreme Court Rules (NT) rr 35.03(2) and 35.05(2); Uniform Civil Procedure Rules 1999 (Qld) r 189(2); Supreme Court Civil Rules 2006 (SA) r 156(7); Supreme Court Rules 2000 (Tas) rr 399(2) and 401(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 35.03(2) and 35.05(2); Rules of the Supreme Court 1971 (WA) O 30 r 5(2)(within 7 days), but only in relation to the authenticity of the document.

Page 99 of 126 Chapter 15 Discovery, Interrogation and Inspection 627 British Thompson-Houston Company Ltd v British Insulated & Helsby Calbes Ltd [1924] 1 Ch 203 . See also,for example, Uniform Civil Procedure Rules 2005 (NSW) r 17.6; Supreme Court Rules (NT) r 35.07; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 35.07. 628 Federal Court Rules 2011 (Cth) r 22.07; Court Procedures Rules 2006 (ACT) r 493; Uniform Civil Procedure Rules 2005 (NSW) r 17.7; Supreme Court Rules (NT) r 35.04;Uniform Civil Procedure Rules 1999 (Qld) r 190; Supreme Court Civil Rules 2006 (SA) r 235; Supreme Court Rules 2000 (Tas) r 403; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 35.04; Rules of the Supreme Court 1971 (WA) O 30 r 3.

15.223 The reduction in the scope of issues by way of admissions serves the overriding objective by limiting controversies only to those matters which are genuinely in dispute. An admission saves the party issuing the notice from having to expend time and resources in proving the fact or the authenticity of a document described in the notice. It also avoids the need for discovery and other forms of disclosure in relation to the fact or document. Accordingly, where a recipient puts the issuing party to proof in relation to a fact or a document by serving a notice disputing the fact or the document’s authenticity, the recipient is exposed to an adverse costs order if the issuing party ultimately proves the fact or the authenticity of the document at trial.629 The costs order is intended to compensate the issuing party for the expenses it incurred in proving the relevant fact or the authenticity of the relevant document.

Page 635 In New South Wales, costs are assessed on an indemnity basis,whereas in South Australia the issuing party is only entitled to costs where the court finds that it was unreasonable for the recipient of the notice to dispute the fact or the authenticity of the document.

629 Federal Court Rules 2011 (Cth) r 22.03; Court Procedures Rules 2006 (ACT) r 491(3); Uniform Civil Procedure Rules 2005 (NSW) rr 42.8–42.9; Supreme Court Rules (NT) r 35.06; Uniform Civil Procedure Rules 1999 (Qld) r 189; Supreme Court Civil Rules 2006 (SA) r 156(10); Supreme Court Rules 2000 (Tas) r 401(2); Supreme Court (General Civil Procedure) Rules 2015(Vic) r 35.06; Rules of the Supreme Court 1971 (WA) O 66 r 3.

15.224 Where a party has made an admission, it may apply for leave to withdraw that admission.630 In determining the application for leave, the court will balance on the one hand the need to ensure that the admissions are not treated as meaningless, and on the other the need to ensure that parties are not fearful of making admissions.631 These factors must be considered in the light of the overriding objective. The effect of a withdrawal of an admission not only results in the party relying on the admission to have to prove the fact that was admitted, but it also results in the court having now to determine the issue.632 Factors which the court will take into account include how the admission came about, whether there is likely to be a real dispute about the fact admitted, the prejudice suffered by either party, and any delay in making the application for leave.633 Ultimately, leave is likely to be granted if there is a genuine dispute about the admitted fact.634

630 Federal Court Rules 2011 (Cth) r 22.06; Court Procedures Rules 2006 (ACT) r 492; Uniform Civil Procedure Rules 2005 (NSW) rr 17.3–17.4; Supreme Court Rules (NT) rr 35.02(2), 35.03(3) and 35.05(5); Uniform Civil Procedure Rules 1999 (Qld) r 189(3); Supreme Court Civil Rules 2006 (SA) r 158; Supreme Court Rules 2000 (Tas) r 401(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 35.02(2),35.03(3) and 35.05(5); Rules of the Supreme Court 1971 (WA) O 30 r 2. 631 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 at 750

per Rogers CJ Comm Div.

632 See Chapter 14, 14.16 ff in relation to principles regarding withdrawals of admissions generally.

Page 100 of 126 Chapter 15 Discovery, Interrogation and Inspection 633 Hanson Construction Materials Pty Ltd v Davey (2010) 79 ACSR 668; [2010] QCA 246 634 Equuscorp Pty Ltd v Orazio [1999] QSC 354

.

.

Inspection of property

15.225 With the exception of the High Court, courts in each jurisdiction have the express power to make orders allowing a party to inspect the property of another, whether tangible personal property or real property.635 Such orders may extend to allowing a party to take samples of any property, make observations, conduct an experiment with respect to the property and observe a process involving the property. The rules are co-extensive with the court’s inherent power to make orders for an inspection.636 In the Australian Capital Territory and New South Wales, courts will generally not make an order for inspection unless satisfied that sufficient relief is not available under s 169 of the Uniform Evidence Act in those jurisdictions.637

Page 636 The property in question need not necessarily be the subject matter of the proceedings. For example, in Vowell v Shire of Hastings ,638 a party obtained an order in relation to a tape recording of a meeting which was in issue in the proceedings.

635 Federal Court Rules 2011 (Cth) r 14.01; Court Procedures Rules 2006 (ACT) r 715; Uniform Civil Procedure Rules 2005 (NSW) r 23.8; Supreme Court Rules (NT) r 37.01;Uniform Civil Procedure Rules 1999 (Qld) r 250(1); Supreme Court Civil Rules 2006 (SA) r 147; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37.01; Supreme Court Rules 2000 (Tas) r 437; Rules of the Supreme Court 1971 (WA) O 52 rr 2–3. 636 As to the court’s inherent power, see Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480

.

637 Evidence Act 2011 (ACT) s 169; Evidence Act 1995 (NSW) s 169. Sections 166–169 provide a regime for a party in proceedings to make requests to another party, including in relation to the examination or testing of property. Where the other party refuses to comply with requests, the court may make orders directing that the party comply with the request. Court Procedures Rules 2006 (ACT) r 715; Uniform Civil Procedure Rules 2005 (NSW) r 23.8(4). 638 [1970] VR 746. Cf Nicholls v McLeay (1971) 1 SASR 442

.

Alternative sources of information Discovery obtained in other jurisdictions

15.226 The law of a foreign jurisdiction may allow a party to apply for an order to compel a person to produce documents or information which may then be used in Australian proceedings. For instance, § 1782 of Title 28 of the United States Code sets out a procedure whereby a person may apply to the United States District Court for an order against a United States resident for discovery or a deposition in aid of proceedings outside of the United States. Section 1782 provides, relevantly: (a)

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal … The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced,before a person appointed by the court. By virtue of his appointment,

Page 101 of 126 Chapter 15 Discovery, Interrogation and Inspection the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

15.227 Procedures such as § 1782 discovery are particularly useful where material relevant to Australian proceedings is held in a foreign jurisdiction and where it may be difficult for an order or process of an Australian court to be enforced in that jurisdiction. However, such procedures have the potential to undermine Australian courts’ control of discovery and interlocutory procedures. For that reason, a party seeking the assistance of foreign courts for discovery and pre-trial disclosure in Australian proceedings must obtain first a direction from the relevant Australian court endorsing the application to the foreign court.639 In Jones v Treasury Wine Estates Ltd ,640 the Full Court of the Federal Court granted an anti-suit injunction to restrain the applicant in an Australian shareholder class action from proceeding with a deposition pursuant to an order from the United States District Court under

Page 637 §1782. The applicant gave neither the Federal Court nor the respondent notice of its intention to apply for the deposition. In granting the injunction, the Full Court held that the use of the § 1782 procedure in the circumstances undermined the court’s judicial case management regime.641 Pre-trial proceedings, including discovery, are ‘solely subject to supervision’ by the court, particularly in relation to class actions.642 As depositions are not typically available in the Federal Court, the Full Court found that the applicant sought to utilise § 1782 to obtain a procedural benefit that would not been readily available in Australia.643

639 Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495 Visa Inc [2017]FCA 454 at [14]–[15] 640 (2016) 241 FCR 111; [2016] FCAFC 59

at Pagone J at [7]; Lavecky v

per Perram J. .

641 (2016) 241 FCR 111; [2016] FCAFC 59 at [49]

.

642 (2016) 241 FCR 111; [2016] FCAFC 59 at [48]

.

643 (2016) 241 FCR 111; [2016] FCAFC 59 at [44]

.

15.228 It appears that a slightly different position is taken in relation to § 1782 when the party is seeking an order for discovery from a foreign court, rather than a deposition. In Lavecky v Visa Inc ,644 the applicant in an Australian proceeding sought the endorsement of the Federal Court for discovery under § 1782 from three foreign entities. In making the direction, Perram J found that the material was not only important to the outcome of the Australian proceedings, but it appeared that there would be no other way that it could be brought before the court.645 His Honour held that the following questions were germane to whether a direction ought to be made: (1)

What is the importance of the material to be sought under the procedure to the applicant’s case?

(2)

Are there other methods available for obtaining it?

Page 102 of 126 Chapter 15 Discovery, Interrogation and Inspection (3)

Does the material sought impinge upon or undermine some important procedural limitation in this jurisdiction such as, for example, the unwillingness of the Court to permit fishing expeditions or, perhaps, the general unwillingness of this Court to order depositions?

(4)

What is the cost involved in the process for the parties before this Court?

(5)

Is that cost a proportionate burden having regard to the significance of the material?

(6)

Is the proposed proceeding under § 1782 in the District Court frivolous or obviously doomed to fail?

(7)

How long might the applications take to resolve and what impact might they have upon the timely preparation of the matter before this Court for trial?

(8)

Is there any need to impose conditions upon the endorsement so as to address any issues arising from (1)–(7) above?

644 [2017] FCA 454

.

645 [2017] FCA 454 at [26]

per Perram J.

Freedom of information

15.229 In each Australian jurisdiction, freedom of information legislation provides, subject to certain exceptions, a right of access by members of the public to information held by government bodies and ministers.646 Such information may be especially

Page 638 useful to a party seeking redress in relation to the action or decision of a government authority or a minister, or to a party investigating whether it has a cause of action. Access to information is by way of a legislative scheme and does not require the commencement of court proceedings. The right to information is not unfettered. In each jurisdiction, access to information may be denied if, for example, it would involve the unreasonable disclosure of personal information of third parties,647 or sensitive information concerning the business affairs of third parties.648 A request for access to information may also be refused where it would involve a disclosure of the internal working documents of a deliberative or policy-making process.649

646 Freedom of Information Act 1982 (Cth) s 11; Freedom of Information Act 2016 (ACT) s 10; Government Information (Public Access) Act 2009 (NSW)s 9; Information Act 2002 (NT) s 15; Right to Information Act 2009 (Qld) s 23; Freedom of Information Act 1991 (SA) s 12; Right to Information Act 2000 (Tas) s 7; Freedom of Information Act 1982 (Vic) s 13; Freedom of Information Act 1992 (WA) s 10. 647 Freedom of Information Act 1982 (Cth) s 47F; Freedom of Information Act 2016 (ACT) s 41; Government Information (Public Access) Act 2009(NSW) s 14 (Table, cl 3); Information Act 2002 (NT) s 56(1)(a); Right to Information Act 2009 (Qld) Sch 4 Pt 3 cll 3–5; Freedom of Information Act 1991 (SA) s 26; Right to Information Act 2000 (Tas) s 36; Freedom of Information Act 1982 (Vic) s 33; Freedom of Information Act 1992 (WA) s 32. 648 Freedom of Information Act 1982 (Cth) ss 47 and 47G; Freedom of Information Act 2016 (ACT) s 43; Government Information (Public Access) Act 2009 (NSW) s 14 (Table, cl 4); Information Act 2002 (NT) s 57; Right to Information Act 2009 (Qld) Sch 4 Pt 3 cl 2; Freedom of Information Act 1991 (SA) Sch 1 cl 7; Right to Information Act 2000 (Tas) s 37; Freedom of Information Act 1982 (Vic) s 34; Freedom of Information Act 1992 (WA) Sch 1 cl 4. 649 Freedom of Information Act 1982 (Cth) s 47C; Freedom of Information Act 2016 (ACT) s 36; Government Information (Public Access) Act 2009(NSW) Pt 2 Div 2 (public interest considerations); Information Act 2002 (NT) s 57; Right to Information Act 2009 (Qld) s 46 (contrary to public interest ground); Freedom of Information Act 1991 (SA) Sch 1 cl 9;

Page 103 of 126 Chapter 15 Discovery, Interrogation and Inspection Right to Information Act 2000 (Tas) s 35; Freedom of Information Act 1982 (Vic) s 30; Freedom of Information Act 1992 (WA) Sch 1 cl 6.

Product and process descriptions in patent cases

15.230 In patent infringement cases, the Federal Court may make an order requiring the respondent to provide a description of the product, process or method that the applicant alleges infringes the applicant’s patent.650 Alternatively, the court may order that the respondent provide a detailed statement stating why its product, process or method does not infringe the patent. In Consafe v Emtunga ,651 Pumfrey J observed that the principal advantage of a product and process description is to avoid the respondent giving extensive discovery which, in the experience of the court, has been ‘rarely if ever referred to’ at trial.The value of such a description can be seen in cases involving the infringement of a patented method, where a respondent would ordinarily discover documents describing the method or components of the method. Significant time and resources would need to be employed by the respondent in providing such discovery, as well as by the applicant in having to piece together the documents to identify the infringing conduct. A process description may limit the scope of discovery, or avoid the process altogether.

650 Federal Court, Intellectual Property Practice Note (IP-1), [6.14]. 651 [1999] RPC 154 at [23]. See also Vringo Infrastructure, Inc v ZTE (UK) Ltd [2015] EWHC 818 (Pat).

15.231 Much like interrogatories, a product and process description gives the respondent significant control over the way in which the relevant subject matter is

Page 639 described. For that reason, the relevant practice note requires the document to be in unambiguous terms and sufficiently detailed so as to address the allegations of infringement pleaded by the applicant.652 The description must be verified as to its truth and accuracy by a person who is personally acquainted with the facts.653 Such a person may be called for cross-examination, but only in relation to matters concerning the accuracy or completeness of the process description.654

652 Federal Court, Intellectual Property Practice Note (IP-1), [6.15]. 653 Federal Court, Intellectual Property Practice Note (IP-1), [6.15]. 654 Voxson Pty Ltd v Telstra Corporation Ltd (No 10) [2018] FCA 376 at [13]–[22]

Search orders Overview

15.232

per Perram J.

Page 104 of 126 Chapter 15 Discovery, Interrogation and Inspection In 1975, the seminal case of Anton Piller KG v Manufacturing Processes655 paved the way for what has commonly been called an ‘Anton Piller order’.656 Since at least 2006, the order has been referred to in court rules in Australia as a ‘search order’.657 While the power to make such an order is within the inherent jurisdiction of superior courts, the power is also set out in court rules.658 For example, r 7.42 of the Federal Court Rules 2011 (Cth) provides: The Court may make an order (a ‘search order’), in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence that is, or may be, relevant to an issue in the proceeding or anticipated proceeding.

655 Anton Piller KG v Manufacturing Processes [1976] Ch 55 ; [1976] 1 All ER 779 . The original order itself was made by a first instance judge of the Chancery Division of the English High Court in 1974. 656 Orders of this nature had been made in the Chancery Division of the English High Court starting with EMI Ltd v Pandit [1975]1 WLR 302

. The High Court confirmed the availability of Anton Piller orders in Australia in Simsek v

MacPhee (1982)148 CLR 636 . For further information regarding search orders, including in relation to the history of the order, see P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, Ch 7. 657 P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, [7.1]. 658 Federal Court Rules 2011 (Cth) r 7.42; Court Procedures Rules 2006 (ACT) r 751; Uniform Civil Procedure Rules 2005 (NSW) r 25.19; Supreme Court Rules (NT) r 37B.2; Uniform Civil Procedure Rules 1999 (Qld) r 261A; Supreme Court Civil Rules 2006 (SA) r 148(2); Supreme Court Rules 2000 (Tas) r 937J; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37B.02; Rules of the Supreme Court 1971 (WA) O 51B r 2.

15.233 The rules governing search orders are largely uniform across Australia and are based on model rules settled by the Council of Chief Justices of Australia and New Zealand. However, the rules do not limit the inherent, implied or statutory jurisdiction of the court to make a search order.659 The rules are supplemented by a harmonised

Page 640 practice note setting out the court’s usual practice and expectations in relation to application for, and execution of, search orders.660 The practice notes also include a standard form of search order and ancillary orders.

659 Federal Court Rules 2011 (Cth) r 7.44; Court Procedures Rules 2006 (ACT) r 727; Uniform Civil Procedure Rules 2005 (NSW) r 25.21; Supreme Court Rules (NT) r 37B.4; Uniform Civil Procedure Rules 1999 (Qld) r 261C; Supreme Court Civil Rules 2006 (SA) r 148(4); Supreme Court Rules 2000 (Tas) r 937L; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37B.04; Rules of the Supreme Court 1971 (WA) O 51B r 4. 660 FCA: Search Orders Practice Note (GPN-SRCH); ACT: Court Procedures Practice Note (Search Orders) 2008 (No 2); NSW: Practice Note No SC Gen 13 (Search Orders); NT: Practice Direction No 6 of 2006: Search Orders; Qld: Practice Direction No 2 of 2007: Search Orders; SA: Supreme Court Practice Direction 4.3 (Search Orders); Tas: Practice Direction No 4 of 2006 (Search Orders); Vic: Practice Note SC GEN 16 (Search Orders); WA: Consolidated Practice Directions 2009,[9.6.2]. In this chapter, reference will be made to the Federal Court’s practice note.

15.234

Page 105 of 126 Chapter 15 Discovery, Interrogation and Inspection A search order, which is normally made without notice and before service of the originating process on the respondent, directs the respondent (which is usually a defendant) to permit authorised persons described in the order to enter the respondent’s premises in order to search, inspect, copy or take away items described in the order. The order may direct the respondent to provide the authorised persons with any information or article described in the order and to allow such person to remove for safekeeping anything described in the order. Under the court rules, a search order may direct each person named in the order:661 (a)

to permit, or arrange to permit, other persons named or described in the order: (i) to enter premises specified in the order; and (ii) to take any steps that are in accordance with the terms of the order; and

(b)

to provide, or arrange to provide, other persons named or described in the order with any information, thing or service described in the order; and

(c)

to allow other persons named or described in the order to take and retain in their custody any thing described in the order; and

(d)

not to disclose any information about the order, for up to 3 days after the date the order was served, except for the purposes of obtaining legal advice or legal representation; and

(e)

to do or refrain from doing any act as the court considers appropriate.

661 Federal Court Rules 2011 (Cth) r 7.45; Court Procedures Rules 2006 (ACT) r 753; Uniform Civil Procedure Rules 2005 (NSW) r 25.22; Supreme Court Rules (NT) r 37B.5; Uniform Civil Procedure Rules 1999 (Qld) r 261D; Supreme Court Civil Rules 2006 (SA) r 148(5); Supreme Court Rules 2000 (Tas) r 937M; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37B.05; Rules of the Supreme Court 1971 (WA) O 51B r 5.

15.235 While it may be an offence for a person to destroy, conceal or tamper with any document or thing that may be required in proceedings,662 mere reliance on compliance by the respondent with the law may not be sufficient to protect the interests of the applicant when faced with a recalcitrant respondent. The destruction of material would defeat the ‘ends of justice’in the proceeding in which that material was required.663 Search orders have proven to be especially useful in cases of intellectual property infringement,664 particularly in cases of piracy where the applicant may be

Page 641 seeking not only to seize evidence of infringement, but to obtain information as to other individuals or organisations involved in the piracy. As Lord Wilberforce observed, search orders:665 … are intended to provide a quick and efficient means of recovering infringing articles and of discovering the sources from which those articles have been supplied and the persons to whom they are distributed before those concerned have had time to destroy or conceal them. Their essence is surprise.

662 See, for example, Crimes Act 1900 (NSW) s 317; Criminal Code (NT) s 102; Crimes Act 1958 (Vic) s 254 (introduced under the Crimes (Document Destruction) Act 2006 (Vic)). 663 Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 at 783

per Lord Denning.

Page 106 of 126 Chapter 15 Discovery, Interrogation and Inspection 664 See, for example, Ginitsios v Karagiannis (1986) 7 IPR 36 (NSWSC) at 37 per Young J; Microsoft Corporation v PC Club Australia Pty Ltd (2005) 67 IPR 262; [2005] FCA 1522

.

665 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380

(HL) at 439.

15.236 Given that search orders are granted in a process that denies the respondent the right to be heard, and given their invasive nature, they are on the very borderline of due process.666 The English Court of Appeal acknowledged in the Anton Piller case that an order of this kind ‘is at the extremity of this court’s powers. Such orders, therefore, will rarely be made, and only when there is no alternative way for ensuring that justice is done to the plaintiff’.667 Accordingly, search orders may not be granted where normal discovery or other methods of obtaining information would be sufficient to secure relevant evidence and other material that may be required in the legal process. An applicant can obtain a search order only where it can show a serious risk that a person will not only fail to comply with its disclosure obligations but would destroy, conceal or interfere with evidence unless it is pre-empted by a search order. The common law’s approach to search orders has therefore been cautious. As Hoffmann J observed:668 The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff. … there must be proportionality between the perceived threat to the plaintiff ’s rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationship does not necessarily justify an Anton Piller order … Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them.

666 CFC Consolidated Pty Ltd v Cooper [2015] WASC 185 at [10] 667 Anton Piller KG v Manufacturing Processes [1976] Ch 55

per Mitchell J.

; [1976] 1 All ER 779 at 784

668 Lock International Corporation v Beswick [1989] 3 All ER 373; [1989] 1 WLR 1268 respectively.

. at 384and 1281

The nature of the order

15.237 A search order, it must be stressed, does not authorise forcible entry or the doing of anything without the consent or cooperation of the person to whom the order is directed. Any order that allows forcible entry is liable to be set aside.669 It may therefore be distinguished from a search warrant issued in relation to the investigation of criminal offences whereby the party executing the warrant (usually the police) may

Page 642 use reasonably necessary force to gain entry into premises.670 As Lord Denning MR explained in the Anton Piller case:671 Let me say at once that no court in this land has any power to issue a search warrant to enter a man’s house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, ‘Get out’. That was established in the leading case of

Page 107 of 126 Chapter 15 Discovery, Interrogation and Inspection Entick v Carrington .672 None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs’ solicitors or anyone else to enter the defendants’ premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window.

Accordingly, if the applicant enters the respondent’s premises without permission, the applicant commits a trespass.673

669 Manor Electronics Ltd v Dickson [1988] RPC 618

.

670 Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. In relation to the use of force for the execution of a search warrant, see, for example, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 70(1). 671 Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 at 782

.

672 [1765] EWHC KB J98. 673 Manor Electronics Ltd v Dickson [1988] RPC 618 at 622

per Scott J.

15.238 While permission from the defendant is needed, the search order ‘brings pressure on the defendants to give permission’.674 That is, the court exercising its in personam jurisdiction (deriving from the Court of Chancery) binds the conscience of the respondent in respect of its in rem proprietary right to allow the applicant entry.675 A refusal to allow entry and to comply with the requirements of the order may amount to contempt of court.676 Furthermore, the court may draw an adverse inference at trial against the respondent,677 namely that the uncooperative conduct was indicative of the respondent having in its possession evidence that would be unfavourable to its case.

674 Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 at 784

675 Manor Electronics Ltd v Dickson [1988] RPC 618 at 622

per Scott J.

per Lord Denning.

676 See Chapter 24, 24.73 ff. But an application for committal for contempt founded on a trivial breach is liable to be dismissed with costs: Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 (Ch). 677 Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 at 783

per Lord Denning.

Requirements for order

15.239 In Anton Piller, Ormrod LJ identified three requirements that the applicant needed to satisfy in order for a search order to be made.678 First, there must be an ‘extremely strong prima facie case’. Secondly, the damage to the applicant, whether potential or actual, must be ‘very serious’. Thirdly, there must be clear evidence that the respondent has in its possession incriminating documents or things and there is

Page 643 a ‘real possibility’ that it may destroy such materials. These requirements are now restated in the court rules.679 For example, r 7.43 of the Federal Court Rules 2011 (Cth) provides:

Page 108 of 126 Chapter 15 Discovery, Interrogation and Inspection

The Court may make a search order if the Court is satisfied that: (a)

an applicant seeking the order has a strong prima facie case on an accrued cause of action; and

(b)

the potential or actual loss or damage to the applicant will be serious if the search order is not made; and

(c)

there is sufficient evidence in relation to a respondent that: (i) the respondent possesses important evidentiary material; and (ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court.

678 Anton Piller KG v Manufacturing Processes [1976] Ch 55

; [1976] 1 All ER 779 at 784

. The requirements have

been applied in Australia: Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34 at 38 Corporation v Goodview Electronics Pty Ltd [1999] FCA 754 at [13] Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [9] liq) v Wiederstein [2014] VSC 430 at [48] 744 at [30]

per Lee J; Microsoft

per Branson J; Addison Wesley Longman

per Stone J; Australia’s Residential Builder Pty Ltd (in

per McMillan J; O’Brien v Industry Skills Peninsula Pty Ltd [2016] VSC

per McDonald J.

679 Federal Court Rules 2011 (Cth) r 7.43; Court Procedures Rules 2006 (ACT) r 752; Uniform Civil Procedure Rules 2005 (NSW) r 25.20; Supreme Court Rules (NT) r 37B.3; Uniform Civil Procedure Rules 1999 (Qld) r 261B; Supreme Court Civil Rules 2006 (SA) r 148(3); Supreme Court Rules 2000 (Tas) r 937K; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37B.03; Rules of the Supreme Court 1971 (WA) O 51B r 3.

15.240 The first two requirements for a search order, namely the need for a strong prima facie case and evidence of potential or actual loss or damage to the applicant, are not unique to search orders. Similar matters are considered in relation to interim (or ‘interlocutory’) injunctions.680 However, the use of the word ‘strong’ in relation to the first requirement suggests that the threshold for a search order is higher than for an interim injunction (in which the equivalent test is a prima facie case).681 The requirement of a strong prima facie case of a claim precludes search orders from being used as a tool to investigate whether the applicant has a cause of action.682 As explained above, the purpose of a search order is to preserve and secure evidence.683 It is not to be used as a substitute for, or in tandem with, an order for discovery.684 Nonetheless, in cases where there are potentially multiple causes of actions closely related (for example, piracy of works protected by copyright) the terms of the search order need not be limited only to documents or material directly related to a precise cause of action known.685

680 See Chapter 10, 10.6 ff. 681 Ritchie’s Uniform Civil Procedure Rules NSW, LexisNexis (online), [25.20.5]. 682 Microsoft Corporation v Goodview Electronics Pty Ltd [1999] FCA 754 at [26] FCA 1260 at [13] Spender J.

per Branson J; Bugaj v Bates [2004]

per Stone J; Jemella Australia Pty Ltd v Internet Marketing Pty Ltd [2008] FCA 13 at [11]

683 See 15.236. Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 at [49]

per Flick J.

684 CT Sheet Metal Works Pty Ltd v Hutchinson (2012) 201 FCR 275; [2012] FCA 17 at [32] (No 4) [2017] FCA 820 at [20]

per Besanko J.

per

per Reeves J; Re Lamond

Page 109 of 126 Chapter 15 Discovery, Interrogation and Inspection 685 Aristocrat Technology Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [7]

per Allsop J.

15.241 In relation to the requirement of the applicant to demonstrate a ‘real possibility’ that the respondent may destroy materials relevant to the proceedings, the court will require more than evidence of ‘extravagant fears’of the applicant that the respondent

Page 644 will destroy materials relevant to the proceedings.686 In Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd ,687 Stone J held that the court will not presume that the majority of people would destroy incriminating evidence if given the opportunity do so. If that was the case, search orders would be granted routinely. Nonetheless, in cases involving misappropriation of confidential information, courts have recognised a ‘strong incentive’ on the part of respondents to conceal their wrongdoing.688 Evidence that the respondent has destroyed evidence previously is strong evidence of a real possibility that the respondent may destroy evidence again. As is evidence that the respondent is engaged in a ‘nefarious activity which renders it likely that he is an untrustworthy person’.689 Accordingly, in Ho v Fordyce ,690 Rein J held that because the respondent in that case had previously created documents bearing false dates, there was a serious risk that the respondent may destroy evidentiary material.691 That the respondent in that case was a solicitor, and therefore an officer of the court, was not enough to allay the court’s concerns. The court may also take into account the ease with which the material in question can be destroyed or concealed.692

686 Booker McConnell plc v Plascow [1985] RPC 425 at 441 at [38]

; CFC Consolidated Pty Ltd v Cooper [2012] WASC 185

per Mitchell J.

687 [2004] FCA 1518 at [12]

.

688 Liberty Financial Pty Ltd v Scott [2002] FCA 345 at [78] 689 Dunlop Holdings Ltd v Staravia Ltd [1982] Com LR 3 [2007] EWHC 406 (Ch) at [15] FCA 13 at [13] J.

per Weinberg J. per Oliver LJ, applied in Indicii Salus Ltd v Chandrasekaran

per Warren J. See also Jemella Australia Pty Ltd v Internet Marketing Pty Ltd [2008]

per Spender J; O’Brien v Industry Skills Peninsula Pty Ltd [2016] VSC 744 at [32]

690 [2015] NSWSC 544

per McDonald

. Leave to appeal against this decision was refused: Fordyce v Ho [2015] NSWCA 240

691 [2015] NSWSC 544 at [39]

.

.

692 Liberty Financial Pty Ltd v Scott [2002] FCA 345 at [78]

per Weinberg J.

15.242 In Brags Electrics Pty Ltd v Gregory ,693 Campbell J cautioned against the view that each of the three requirements for the grant of a search order be treated as ‘essential proofs’. Instead, the court should balance the strength of the applicant’s case, the seriousness of the damage or injury to the applicant, and the magnitude of the risk that evidence will be destroyed if the search order is granted. This is consistent with the comments of Scott J in Columbia Picture Industries Inc v Robinson ,694 where it was said that: … a decision whether or not an Anton Piller order should be granted requires a balance to be struck between the plaintiff’s need that the remedies allowed by the civil law for the breach of his rights should be attainable and the requirement of

Page 110 of 126 Chapter 15 Discovery, Interrogation and Inspection justice that the defendant should not be deprived of his property without being heard.

693 [2010] NSWSC 1205 at [18] 694 [1987] Ch 38

at 76

. .

Application procedure and duty of full disclosure

15.243 Since a search order is aimed to forestall evasion, concealment or destruction of evidence, applications for a search order are almost invariably made without notice

Page 645 to the respondent.695 Very often, the application will be made before proceedings have been commenced (usually to a duty judge or an urgent motions list judge) although there is no reason why the court may not make a search order after proceedings have been commenced.696 An application for a search order must be supported by affidavit evidence, which sets out the facts on which the applicant relies and all other material facts of which the court should be made aware, including facts that would count against the grant of the search order. In particular, the affidavit should address:697 (a)

a description of the things or categories of things, in relation to which the order is sought;

(b)

the address or location of any premises in relation to which the order is sought and whether they are private or business premises;

(c)

why the order is sought, including why there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the order is made;

(d)

the prejudice, loss or damage likely to be suffered by the applicant if the order is not made;

(e)

the name, address, firm, and commercial litigation experience of an independent lawyer who consents to being appointed to serve the order, supervise its execution, and do such other things as the Court considers appropriate; and

(f)

if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be: (i) a female; (ii) a child under the age of 18; or (iii) any other person (‘vulnerable person’) that a reasonable person would consider to be in a position of vulnerability because of that person’s age, mental capacity, infirmity or English language ability; or (iv) any combination of (i), (ii) and (iii), any one or more of such persons.

695 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547 Handley JJA agreed). 696 Microsoft Corporation v Goodview Electronics Pty Ltd [1999] FCA 754 at [22]

per Powell JA (with whom Meagher and

per Branson J.

Page 111 of 126 Chapter 15 Discovery, Interrogation and Inspection 697 Search Orders Practice Note (GPN-SRCH), [2.8].

15.244 In short, the applicant must disclose all the facts that could have a bearing on the court’s decision whether for or against the grant of the order.698 The courts attach considerable importance to compliance with the application procedure, and substantial departure from the practice note is likely to result in the discharge of the search order.699 The applicant’s obligation to set out all material facts is of great importance in view of the fact that the respondent is normally denied a right of participation.700 Relevantly, the practice note provides:701

Page 646   An applicant for a search order made without notice is under a duty to the Court to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any financial information which may cast doubt on the applicant’s ability to meet the usual undertaking as to damages from assets within Australia.

698 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Milcap v Coranto (1995) 32 IPR 34 at 35

; Hayden v Teplitzky (1997) 74 FCR 7 at 12

per Lindgren J;

per Davies J.

699 Gadget Shop Ltd v Bug Com Ltd [2001] FSR 383

.

700 For the obligation of making full and frank disclosure, see Chapter 8, 8.15 ff and Chapter 10, 10.82 ff. 701 Search Orders Practice Note (GPN-SRCH), [2.20].

15.245 In Orpen v Tarantello ,702 Beach J summarised the duty of full disclosure in relation to ex parte orders as follows: (a)

First, the duty owed by a plaintiff seeking an ex parte order is to place before the court all material facts and matters.

(b)

Secondly, the duty is an absolute one, owed to the court.

(c)

Thirdly, the disclosure of all material facts must be both full and fair.

(d)

Fourthly, it is no excuse for a plaintiff to say he was not aware of the importance of a particular material fact.

(e)

Fifthly, a party fails in this obligation ‘unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application’.703

(f)

Sixthly, materiality is to be decided by the court, and not by the assessment of the plaintiff or his legal advisers.

(g)

Seventhly, a plaintiff must disclose any defence he has reason to anticipate may be advanced. A high standard of candour and responsibility is required of those who seek ex parte orders.

Page 112 of 126 Chapter 15 Discovery, Interrogation and Inspection

702 [2009] VSC 143 at [27]

.

703 Quoting Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681–2

per Isaacs J.

15.246 The duty to disclose is not limited to those matters of which the applicant is actually aware. The applicant is also required to disclose those additional matters which could have been ascertained had the applicant made reasonable inquiries.704 The degree and extent of those inquiries required of the applicant will depend on the scope of the order and the urgency with which it is being sought. The applicant is also required to disclose the extent to which it is able to compensate the respondent (by the applicant’s undertaking as to damages) in the event that the order is discharged.705 This information is critical as the inability to pay damages pursuant to an undertaking is, of itself, a basis to refuse a search order.

704 Behbehani v Salem [1989] 1 WLR 723 FCA 345 at [45] per Vickery J.

at 726

per Ralph Gibson LJ; Liberty Financial Pty Ltd v Scott [2002]

per Weinberg J; Australian Football League v Hard On Sport Pty Ltd [2012] VSC 475 at [101]

705 Lock International Corporation v Beswick [1989] 3 All ER 373; [1989] 1 WLR 1268

; Heartwood Architectural

Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499; [2009] QSC 195 at [37] relation to freezing orders).

per Applegarth J (in

15.247 A duty to make a full and frank disclosure to the court is not limited to the applicant. Separately, the applicant’s lawyer has an ethical obligation to disclose those matters which the lawyer has reasonable grounds to believe would support

Page 647 an argument against the granting of the order or limiting its terms adversely to the lawyer’s client.706

706 See, for example, the Legal Profession Uniform Conduct (Barristers) Rules 2015 r 27, and the Legal Profession Uniform Australian Solicitors’ Conduct Rules 2015 r 19.4.

15.248 While the authorities make it clear that the applicant should err on the side of disclosing more than less, courts have recognised limits to the requirement. For instance, in Elderslie Finance Corporation Ltd v Newspaper Pty Ltd ,707 the respondent contended that the applicant failed to disclose that the supporting affidavit was given by a person who had some 13 years earlier been convicted and imprisoned for dishonesty offences. While Lindgren J agreed that this information may have an impact on the credibility of the deponent, his Honour was satisfied that the earlier conduct was unrelated to the instant case and the applicant had no reason to believe that the deponent had given false evidence in the affidavits.708 Accordingly, the order was not set aside.

Page 113 of 126 Chapter 15 Discovery, Interrogation and Inspection

707 [2007] FCA 500

.

708 [2007] FCA 500 at [71]

.

15.249 A failure by the applicant to provide a full and frank disclosure gives rise to a prima facie right by the respondent to have the order set aside.709 The rationale for the principle was explained by the Full Court of the Federal Court in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd 710 as protecting the public’s confidence in the administration of justice that an ex parte order is obtained only after a party has complied with its duty to disclose all material facts. However, not every omission will give rise to an order being set aside.711 The court will consider the ‘degree and extent of the culpability’ of the applicant in not disclosing all material facts, and the significance this had on the outcome of the court granting the search order in the first instance.712 It is unlikely that the court will set aside a search order on the basis of facts being inadvertently omitted and which had minimal prejudice to the respondent.713 Where a court does dissolve a search order for non-disclosure, it is not prevented from making another search order on terms that it sees fit.714

709 Garrard v Email Furniture Ltd [1993] 32 NSWLR 622 at 676 per Mahoney AP; Heydon v Teplinzky (1997) 74 FCR 7 at 12

per Lindgren J.

710 (1988) 20 FCR 540 at 543

.

711 Behbehani v Salem [1989] 1 WLR 723

at 726

per Ralph Gibson LJ.

712 Behbehani v Salem [1989] 1 WLR 723

at 729

per Woolf LJ.

713 Hakendorf v Colette [2004] EWHC 2821 at [99] per Tugendhat J. 714 Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 at 543 it may vary the terms of the existing search order.

. Alternatively,

15.250 Courts have cautioned against taking the principle of full disclosure to ‘extreme lengths’.715 This is not to undermine the importance of disclosure, but to ensure that complaints of non-disclosure are not brought in respect of trivial nondisclosures or in respect of matters which would require the court to embark on

Page 648 a trial of facts at the interlocutory stage. In Dormeuil Frères SA v Nicolian Ltd ,716 Browne-Wilkinson VC said: In my judgment, save in exceptional cases it is not the correct procedure to apply to discharge an ex parte injunction on the grounds of lack of full disclosure at the interlocutory stage of the proceedings. The purpose of interlocutory proceedings is to regulate the future of the case until trial. Where an Anton Piller order has been made ex parte, in the vast majority of cases the order has been executed before the inter partes hearing. Setting aside the Anton Piller order cannot undo what has already been done. As to the injunction contained in the ordinary Anton Piller order, that is directed to last only until the inter partes hearing of the motion. The correct course, as the Court of Appeal decisions show, is to regulate the matter for the future on the basis of the evidence before the judge on the inter partes hearing. The sole relevance of the question ‘Should the ex parte order be set aside?’ is, so far as I can see, to determine the question whether the plaintiff is liable on

Page 114 of 126 Chapter 15 Discovery, Interrogation and Inspection the cross-undertaking in damages given on the ex parte hearing. That is not an urgent matter. It is normally much better dealt with at the trial by the trial judge who knows all the circumstances of the case and is able, after cross-examination, to test the veracity of the witnesses.

While some English authorities have questioned these remarks,717 the authority has been cited with approval in some Australian cases.718

715 Brink’s-MAT Ltd v Elcombe [1988] 3 All ER 188 at 194 716 [1988] 1 WLR 1362

at 1369

per Slade J.

.

717 For example, Ali and Fahd Stobokski Group Ltd v Moneim [1989] 1 WLR 710 Boswell [1991] Ch 512

at 533

and Tate Access Floors Inc v

.

718 Dart Industries Inc v David Bryer & Associates Pty Ltd (1997) 38 IPR 389 (FCA) at 419–20 per Goldberg J; Australian Football League v Hard On Sport Pty Ltd [2012] VSC 475 at [106]

per Vickery J.

15.251 There may be circumstances where, despite the applicant complying with its duty of full disclosure, new facts come to light that would have had an impact on the decision as to whether or not to grant the search order in the first place. In such a case, as with any interlocutory order, the court may set aside or vary the order. This is not because of non-disclosure, but because the revelation of new evidence reveals circumstances which make the existing order no longer appropriate.719

719 Heydon v Teplinzky (1997) 74 FCR 7 at 12

per Lindgren J.

The applicant’s undertakings

15.252 A search order must contain undertakings given by the applicant to the court which include to pay damages to any person who may be affected by the order, to commence the substantive proceedings within a short period of time,720 and not to use any information obtained as a result of the search order except for the purpose of the proceedings in which the order was made.721 If the applicant does not have sufficient assets within the jurisdiction to substantiate its undertaking as to damages, it may be required to provide security for the performance of that undertaking by, for example, obtaining an irrevocable bank guarantee or by a

Page 649 payment into court.722 A breach of the undertakings may amount to a contempt of court by the applicant.723 The standard form of undertaking annexed to the practice note, and which is served on the respondent with the search order, is in the following terms:724 1.

The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

Page 115 of 126 Chapter 15 Discovery, Interrogation and Inspection 2.

The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

3.

The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.

4.

If the applicant has not already done so, as soon as practicable the applicant will file an interlocutory application for hearing on the Return Date and an originating process [in the form of the draft produced to the Court].

[5.

The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.]

[6.

The applicant will: (a) on or before [insert date] cause a written irrevocable undertaking to pay in the sum of $[insert amount] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages contained in paragraph (1) above; and (b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.]

720 For example, in New South Wales, a person making an application for a search order must give an undertaking that it will file an originating process within such time as the court may order or, if the court makes no such order, within 48 hours after the application is granted: Uniform Civil Procedure Rules 2005 (NSW) r 25.2(3). 721 Search Orders Practice Note (GPN-SRCH), [2.18]. 722 Search Orders Practice Note (GPN-SRCH), [2.19]. 723 CT Sheet Metal Works Pty Ltd v Hutchinson (2012) 201 FCR 275; [2012] FCA 17

.

724 Search Orders Practice Note (GPN-SRCH), Schedule B to Annexure A.

15.253 The applicant’s undertaking as to damages provides the respondent, and any affected third party, with a measure of protection against search orders that are improperly obtained, too broad in scope, or executed in an excessive or oppressive manner.725 The nature of the damages is primarily compensatory.726 The court may award damages irrespective of whether the search order has been formally set aside.727 Where the applicant has breached an undertaking by, for example, executing the order in an excessive or oppressive manner, the applicant may also be liable to pay aggravated damages.728

725 Columbia Pictures Industries Inc v Robinson [1986] 3 All ER 338 at 369 regarding the undertaking as to damages, see Chapter 10, 10.63 ff. 726 Columbia Pictures Industries Inc v Robinson [1986] 3 All ER 338 at 379

per Scott J.

727 Columbia Pictures Industries Inc v Robinson [1986] 3 All ER 338 at 378 damages was made despite the court refusing to set aside the search order. 728 Columbia Pictures Industries Inc v Robinson [1986] 3 All ER 338 at 379

per Scott J. For further information

per Scott J. In that case, an award of

per Scott J.

Page 116 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.254 Where a search order is discharged or varied, the court should consider whether it is appropriate to assess damages at once and direct immediate payment. If the questions relevant to the propriety of the search order require further investigation at the trial, it may be appropriate for the issue of damages to be revisited after a trial of

Page 650 the proceedings.729 Otherwise there should be a presumption in favour of immediate compensation to avoid any further harm to the respondent being compounded by further delay and uncertainty.730

729 Booker McConnell plc v Plascow [1985] RPC 425 at 435 730 Lock International Corporation v Beswick [1989] 3 All ER 373

per Kerr LJ. .

15.255 Among the applicant’s undertakings is an undertaking to use the material pursuant to the search order for the limited purpose of the pending proceedings. The applicant’s use of the material is already restricted by operation of the implied (or ‘Harman’) undertaking.731 An applicant may apply to the court to be released from its undertaking where there are special circumstances. For example, in Crest Homes plc v Marks ,732 the plaintiff was permitted to use material obtained under a search order in separate contempt proceedings against the same defendant. The plaintiff contended that the material made available under the search order was contrary to statements made by the defendant in an affidavit in earlier proceedings. Both matters concerned copyright infringement by the defendant in relation to substantially the same set of materials. In finding special circumstances, Lord Oliver held that the current proceedings and the earlier proceedings were, in substance, the same set of proceedings.733 Accordingly, it was held, there was no injustice suffered by the defendant in the plaintiff being released from its undertaking.

731 See 15.180 ff. 732 [1987] AC 829

; [1987] 2 All ER 1074

.

733 [1987] AC 829

; [1987] 2 All ER 1074 at 1081

.

15.256 In Website Corporation Pty Ltd v Alexander ,734 the applicant sought to be released from its undertaking in relation to material it obtained under a search order so that it could provide the material to the police for a criminal investigation against the respondent. The applicant obtained the search order on the basis of an allegation of copyright infringement and breaches of the Corporations Act 2001 (Cth). Following the execution of the search order, the applicant pressed charges against the respondent for unauthorised access or modification to data, a criminal offence under the Copyright Act 1968 (Cth). It was contended that the material obtained pursuant to the search order would assist the police in their investigation and any subsequent prosecution. However, Jessup J refused to release the applicant from its undertaking, holding that the offences being investigated by the police corresponded with the civil wrongs in relation to which the applicant brought its civil proceedings.735 His Honour adopted the reasoning of Lee J in Bailey v Australian Broadcasting Corporation ,736 in which it was said:

Page 117 of 126 Chapter 15 Discovery, Interrogation and Inspection

[I]f a party does not feel sufficiently aggrieved to protect his rights by means of civil action open to him, it is difficult to see why the public conscience should feel any greater insult or burden.

734 [2012] FCA 69

.

735 [2012] FCA 69 at [17]

.

736 [1995] 1 Qd R 476 at 489

.

15.257 In addition to the applicant’s undertaking, the applicant’s lawyer must also provide an undertaking that he or she will pay the reasonable costs and disbursements

Page 651 of the independent lawyer and of any independent computer expert,737 and that the lawyer will not disclose to the applicant any information that he or she has acquired during or as a result of the search order, without leave of the court.738 The lawyer may be released from this undertaking at the return date.

737 Search Orders Practice Note (GPN-SRCH), [2.10]. 738 Search Orders Practice Note (GPN-SRCH), [2.18].

Search party and the independent lawyer

15.258 Originally, it was the applicant’s solicitors that executed search orders. This proved inflammatory because a respondent was bound to resent the ransacking of its premises by its opponent’s solicitors. Furthermore, it is difficult to expect the applicant’s solicitors to execute the order with the appearance of detachment, fairhandedness and objectivity that is required in order to ensure that the intrusion into the respondent’s private sphere is kept within proper bounds and that it does not become an instrument of oppression designed to press the respondent into submission.

15.259 The former practice has now been abandoned. As a result of the intrusive nature of search orders, the harmonised practice note sets out certain restrictions and requirements in relation to those involved in executing the search order (that is, the search party). Generally, each search party must comprise at least one lawyer representing the applicant, and an independent lawyer who supervise the search.739 If, for example, the search order provides for the collection of electronically stored information, it may be necessary for the court to appoint an independent computer expert to carry out the search. The search party must be as small as reasonably practicable.740 Accordingly, it should only comprise those persons needed to execute the search order. Where possible, those persons should be

Page 118 of 126 Chapter 15 Discovery, Interrogation and Inspection named in the order.741 Ordinarily, the search party will not include the applicant, an officer or employee of the applicant (where the applicant is a company) or any party associated with the applicant.742

739 Search Orders Practice Note (GPN-SRCH), [2.6]. 740 Search Orders Practice Note (GPN-SRCH), [2.7]. 741 Search Orders Practice Note (GPN-SRCH), [2.7]. 742 Search Orders Practice Note (GPN-SRCH), [2.6].

15.260 One of the more important safeguards of the present practice is the involvement of an independent lawyer.743 Although complete objectivity cannot be expected from someone who is instructed by the applicant’s solicitors, at least this provision removes the unseemly friction that was caused in the past by the direct and antagonistic contact between the applicant’s solicitors and the respondent. Independent lawyers are intended to operate as a safeguard against the misuse of search orders. An independent lawyer must have sufficient experience in commercial litigation,744 and must not be a member or employee of the applicant’s firm of lawyers.745 The role of the independent lawyer includes to:746

Page 652   (a)

serve the order, the application for it, the affidavits relied on in support of the application, and the originating process;

(b)

offer to explain, and, if the offer is accepted, explain the terms of the search order to the respondent;747

(c)

explain to the respondent that the respondent has the right to obtain legal advice;

(d)

supervise the carrying out of the order;

(e)

before removing things from the premises, make a list of them, allow the respondent a reasonable opportunity to check the correctness of the list, sign the list, and provide the parties with a copy of the list;

(f)

take custody of all things removed from the premises until further order of the Court;

(g)

if the independent lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically or printing out information in documentary form, remove the computer from the premises for that purpose, and return the computer to the premises within any time prescribed by the order together with a list of any documents that have been copied or printed out;

(h)

submit a written report to the Court within the time prescribed by the order as to the execution of the order; and

(i)

attend the hearing on the return date of the application, and have available to be brought to the Court all things that were removed from the premises. On the return date the independent lawyer may be required to release material in his or her custody which has been removed from the respondent’s premises or to provide information to the Court, and may raise any issue before the Court as to execution of the order.

743 Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 at [15] 744 Metso Minerals v Kalra (No 3) [2008] FCA 1201 at [16]

per Flick J.

per Flick J.

Page 119 of 126 Chapter 15 Discovery, Interrogation and Inspection 745 Search Orders Practice Note (GPN-SRCH), [2.11]. 746 Search Orders Practice Note (GPN-SRCH), [2.11]. 747 AGL Energy v Hardy [2017] FCA 420 at [94]

per O’Callaghan J.

15.261 It may also be necessary for the search party to include an independent computer expert if, for example, the material to be seized is stored on a computer. Independent lawyers and independent experts are required to provide undertakings to the court in relation to the search order.748 For the independent lawyer, the undertakings include to use best endeavours to serve the respondent with the order (and any other documents required to be served), and to retain custody of all things removed from the premises until delivery to court or further order of the court.749 The independent expert’s undertaking includes an undertaking to use best endeavours to act in conformity with the order and to ensure, so far as it concerns the expert, the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.750

748 See Search Orders Practice Note (GPN-SRCH), Schedule B to Annexure A. 749 See Search Orders Practice Note (GPN-SRCH), Schedule B (Undertakings given to the court by the independent lawyer), [1] and [3]. 750 See Search Orders Practice Note (GPN-SRCH), Schedule B (Undertakings given to the court by the independent computer expert), [1].

‘Gagging order’751

751 The term is used in P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, [7.117].

15.262 Typically, search orders will contain an order restraining the respondent, for a short period of time, from disclosing the existence of the search order until such time

Page 653 as permitted by the order. An exception applies to allow the respondent to obtain legal advice. The standard order contained in the harmonised practice note provides:752 Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.

752 See Search Orders Practice Note (GPN-SRCH), Annexure A, Order 25.

Page 120 of 126 Chapter 15 Discovery, Interrogation and Inspection

15.263 The restraint is designed to prevent the respondent from alerting other potential respondents, who may also possess material relevant to the proceedings and may be disposed to destroy such material, about the search order.753 Under the court rules, the restraint against disclosure must not exceed three days after the order was served.754

753 [1992] 3 All ER 257 at 276

per Nicholls VC.

754 Federal Court Rules 2011 (Cth) r 7.45(1)(d); Court Procedures Rules 2006 (ACT) r 753(1)(d); Uniform Civil Procedure Rules 2005 (NSW) r 25.22(1)(d); Supreme Court Rules (NT) r 37B.5(1)(d) ; Uniform Civil Procedure Rules 1999 (Qld) r 261D(1)(d); Supreme Court Civil Rules 2006 (SA) r 148(5)(a); Supreme Court Rules 2000 (Tas) r 937M(1)(d); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 37B.05(1)(d); Rules of the Supreme Court 1971 (WA) O 51B r 5(1)(d).

‘John Doe order’

15.264 In cases where an applicant is seeking to seize counterfeit goods, the applicant may have very limited information about the identity of the respondent. A person who engages in counterfeiting may not be using a registered business name or trading as a company. Such a person may not have a usual place of business. In such cases, the court may allow a search against a party whose name is not known to the applicant at the time that the order is made. These orders have become known as ‘John Doe’ orders, or ‘rolling search orders’.755 In Fila Canada Inc v Jane Doe & John Doe ,756 a decision of the Federal Court of Canada, Reed J explained the rationale of the order as follows: As is obvious from the style of cause, when these orders are obtained from the court neither the identity nor the address of the persons against whom they will be executed are known. On some occasions one or two persons may be identified as named defendants but they will have no necessary connection to the Jane and John Doe against whom the order will also be executed. The unknown defendants are allegedly infringing intellectual property rights belonging to the plaintiff but in different places, at different times and in different circumstances. These ‘rolling’ orders are to be distinguished from defendant-specific Anton Piller orders. While defendant-specific Anton Piller orders may also include Jane Doe and John Doe defendants,in general, the latter will be connected to the named defendants, eg by being an employee of the defendant or a supplier of the alleged counterfeit goods to the defendant.

755 P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Sydney, 2008, [7.67]. 756 (1996) 35 IPR 104 at 105

.

15.265 In Australia, an order analogous to a rolling search order was made in Tony Blain Pty Ltd v Jamison .757 In that case, the applicant sought an order requiring persons

Page 121 of 126 Chapter 15 Discovery, Interrogation and Inspection

Page 654 selling counterfeit merchandise to deliver up unauthorised merchandise upon service of the order. The order was made against several named respondents, including one who the court ordered represented all persons engaged in selling or offering for sale the merchandise.758 Those persons, whose name was not known, were described by reference to photographs taken of them.

757 (1993) 26 IPR 8 (FCA). 758 (1993) 26 IPR 8 (FCA) at 9.

Execution of the order

15.266 Early experience with the search order procedure demonstrated that unless adequate safeguards are put in place, search orders are capable of being used oppressively and of inflicting unwarranted harm on respondents.759 The unexpected appearance on the respondent’s doorstep of the applicant’s solicitor armed with a search order can be humiliating, alarming and upsetting, even when service is carried out with care and consideration. The harmonised practice note, as well as the standard order annexed to the practice note, seek to ensure that the more blatantly oppressive practices that accompanied search orders in the past are avoided under the present rules. The practice note serves to safeguard the interests of the respondent and to ensure that a search process is carried out with appropriate regard for the respondent’s interests and with the utmost propriety. Infringements of the requirements in the practice note must be regarded not as mere technical breaches but as serious defects capable of undermining the right of fair trial.760 Still, maintaining a satisfactory balance between respect for privacy and for due process, on the one hand, and the need to prevent improper interference with evidence, on the other hand, is not an easy task. Since applications for search orders are made without notice, the court is inevitably presented with a one-sided version of the events. In the absence of an adversary, it is all too easy to make one’s case look strong, and although the applicant has to make full and frank disclosure of all material facts, his or her view of the situation may well be distorted by exaggerated fears. A court must therefore be always on its guard and should approach applications with great care.

759 See, for example, Columbia Picture Industries v Robinson [1987] Ch 38 Corporation v Beswick [1989] 3 All ER 373; [1989] 1 WLR 1268 760 Gadget Shop Ltd v Bug Com Ltd [2001] FSR 383

; [1986] 3 All ER 338

; Lock International

.

.

15.267 The search order may only be served at a time permitted in the order and, generally, on a business day.761 The order must only be served by, and executed under the supervision of, the independent lawyer.762 It must not be executed while there is a search warrant being executed by the police or other regulatory authority.763 The respondent must be given an opportunity to read the order and, if the respondent requests, have the independent lawyer explain the order.764 Prior to granting entry to anyone in the search party, except the independent lawyer, the respondent is generally

Page 655 afforded time (not exceeding two hours, or such longer time as the independent lawyer permits) to:765 (a) seek legal advice;

Page 122 of 126 Chapter 15 Discovery, Interrogation and Inspection (b) apply to the court to have the order varied or set aside; (c) where the respondent is an individual, gather any material which the respondent believes may incriminate him or her, or expose the respondent to a civil penalty;766 and (d) gather any documents subject to legal professional privilege.767 Documents which the respondent believes are subject to the privilege against self-incrimination or legal professional privilege must be handed to the independent lawyer in a sealed envelope or container. The independent lawyer must not inspect or allow any other person to inspect the material contained in the envelope or container. If a respondent who is an individual claims self-incrimination privilege in relation to material stored electronically, he or she must prepare an affidavit describing the information over which he or she claims the privilege.768 That affidavit is to be provided to the court in a sealed envelope. Separately, the respondent is to file and serve on each party to the proceedings an affidavit setting out the basis on which it claims the privilege.

761 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 4. 762 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 5. 763 Search Orders Practice Note (GPN-SRCH), [2.14]. Cf ITC Film Distributors Ltd v Video Exchange (No 2) (1982) 126 SJ 672. 764 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 11. 765 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 12. 766 See Chapter 18. 767 See Chapter 16. 768 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 21(c).

15.268 Only the independent lawyer named in the order, accompanied by the rest of the search party described in the order, is allowed to enter the relevant premises and to carry out the search. Unless the independent lawyer is satisfied that it is not reasonably practicable, the search may only be carried out in the presence of the respondent or the respondent’s officer, employee, agent or other representative.769 Among other things, the respondent is required to:770 (a) permit the search party to enter and re-enter the premises until the search and all other activities in the order are complete; (b) permit the search party to search for and inspect the materials described in the order, and to make or obtain a copy, photograph, film, sample, test or other record of those materials; (c) disclose the location of all computers, and electronic storage devices or systems at the premises in which materials listed in the order may be stored, located or recorded, and permit those documents to be printed out; (d) do all things necessary to enable the search team to have access to the material described in the order, including providing all necessary passwords; (e) permit the independent lawyer to remove from the premises into the independent lawyer’s custody all copies, photographs, films, samples, tests, other records and printed out documents; and

Page 656   (f)

permit the independent computer expert to search any computer and make a copy or digital copy of any computer hard drive and permit the expert or the independent lawyer to remove any computer hard drive

Page 123 of 126 Chapter 15 Discovery, Interrogation and Inspection and computer from the premises. Searches of computers may only be carried out by an independent computer expert.771

769 Search Orders Practice Note (GPN-SRCH), Annexure A, Orders 17 and 18. 770 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 9. 771 Search Orders Practice Note (GPN-SRCH), Annexure A, Orders 20 and 21.

15.269 Only material described in the order should be taken.772 Unauthorised entry or removal of materials may amount to trespass or wrongful interference. If there is a dispute about whether an item falls within the material described by the search order, it must be handed to the independent lawyer who must be permitted to remove the item from the premises.773 The court may, at the next return date, resolve the issue of whether the item in dispute is described in the order. Prior to any material being taken, the independent lawyer must provide the respondent with a list of those items (except items in dispute). The respondent must be given a reasonable opportunity to review the list and to check its accuracy.774 After the material has been removed, the respondent is entitled to inspect and make copies of that material, and to provide the independent lawyer a signed list of items which are claimed to be privileged or confidential.

772 Columbia Picture Industries Inc v Robinson [1986] 3 All ER 338 at 371

per Scott J.

773 Search Orders Practice Note (GPN-SRCH), Annexure A, Orders 9(f)(i) and 15. 774 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 16.

15.270 In cases where the applicant has alleged that the respondent has evidence of intellectual property infringement (for example, counterfeit items), the applicant may wish to obtain information about whether the material has been supplied to the respondent by another party. Accordingly, a search order may include an order requiring the respondent to disclose further information by way of affidavit before the return date. In particular, the respondent must inform the applicant of the following matters:775 (a) the location of the material described in the search order; (b) the name and address of any person that has supplied, or offered to supply, to the respondent any of the material; (c) the dates of every supply and offer, and the quantities supplied or offered to be supplied. A respondent that is an individual may object to the provision of any information which would incriminate the respondent, or would expose him or her to a civil penalty. In such a case, the respondent would need to give details of the objection by way of affidavit evidence.776

Page 657

Page 124 of 126 Chapter 15 Discovery, Interrogation and Inspection 775 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 23. 776 Search Orders Practice Note (GPN-SRCH), Annexure A, Order 24.

The respondent’s options on being served

15.271 A search order requires immediate compliance. A respondent has no right to say that it will not comply until it has had an opportunity to seek a discharge of the order. Nor does the respondent have a right to prolong the execution of the search order so that it may apply to have it set aside. To allow such a delay may allow a respondent enough time to destroy evidence pending the determination of the application, which may of itself be groundless, thereby defeating the very purpose for which the order was made. In Wardle Fabric Ltd v G Myristis ,777 the respondent refused entry to the search party in breach of a search order and, instead, applied successfully to the court to have the order set aside on the basis that the applicant had not complied with its obligation to provide full disclosure. The applicant had applied to commit the respondent for contempt for failing to comply with the search order in the first instance. Goulding J said:778 In the absence of authority, and if I were free to look at the matter from first principles, I would have thought that if the court makes an order within its jurisdiction, by which I mean in such circumstances that the purported order is not a nullity in law, then a party is bound to obey it at his risk of contempt proceedings if he does not, and that the subsequent discharge of the order as having been irregularly obtained would not in logic and principle affect the disobedient party’s liability to penalties for contempt. It seems to me the system of administering justice would break down if the subjects were entitled to apply their own or their advisers’ ideas to the possibilities of subsequently setting aside an order and to disobey on the strength of such private judgment and then, if the judgment turned out not to have been right, be free from all penalty.

777 [1984] FSR 263

.

778 [1984] FSR 263 at 271 at 368

, referred to with approval in Columbia Picture Industries Inc v Robinson [1986] 3 All ER 338

per Scott J.

15.272 Nonetheless, a respondent served with a search order can take certain steps to protect its interests. The respondent may legitimately insist or the orders may provide, as discussed above, that no search or removal should take place until it has had a chance to consult a solicitor, provided that such consultation can take place within a short time and provided that the respondent can offer adequate safeguards that no precipitate action would be taken in the meantime. Notwithstanding the mandatory terms of a search order, a respondent has considerable scope for offering alternative arrangements, provided they are as effective as the terms of the order in securing the material sought by the applicants. For instance, a respondent may insist that the search should be carried out not by the supervising lawyer but by the respondent’s own solicitors in the presence of the independent lawyer and according to its requirements. The respondent may offer that the material indicated in the order should be taken into the safe custody of its own solicitor until it has had an opportunity to challenge the order in court. However, fear of reprisals by wrongdoers provides no justification for not complying with a search order.779

Page 658

Page 125 of 126 Chapter 15 Discovery, Interrogation and Inspection 779 Coca-Cola Co v Gilbey [1995] 4 All ER 711 [2003] 11 LS Gaz R 31.

; Coca-Cola Co v Aytacli (Contempt: Committal) [2003] EWHC 91 (Ch);

Return date and applicant’s access to seized material

15.273 The material seized pursuant to the search order is to be held by the independent lawyer until further order of the court.780 At the return date, the court will consider what is to happen to any of the material seized under the search orders, and how any confidentiality in the material is to be maintained.781 The court may also deal with any claims for privilege by the respondent or issues raised by the independent lawyer. The respondent may also use the return date as an opportunity to make an application to have the search order set aside.

780 Search Orders Practice Note (GPN-SRCH), [2.11](f). 781 Search Orders Practice Note (GPN-SRCH), [2.17].

15.274 At the return date, the applicant may seek an order to be provided with access to the seized material. As a starting point, it must be remembered that the primary purpose of the search order is to preserve evidence that is at risk of being destroyed or concealed by the respondent. Once the material has been seized, that risk no longer exists. Furthermore, a search order does not act as a substitute for discovery generally. In Aristocrat Technologies Pty Ltd v Global Gaming Pty Ltd ,782 it was acknowledged by the court that prior to the advent of the ‘computer era’, the seized material was of a physical form and its relevance may not have been in question. The same may not be said in relation to swathes of electronically stored information. Accordingly, in that case, Jacobson J granted leave to the respondent to search all material seized under the search order without being confined to those documents which related to the cause of action then known to the applicant.783 However, the search order in that case was granted in circumstances where the precise causes of action were not known at the time the order was made.784

782 [2006] FCA 1707 at [29]

.

783 [2006] FCA 1707 at [32]–[33]

.

784 Aristocrat Technology Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862

.

15.275 A more confined approach to the issue of access was taken in Metso Minerals v Kalra (No 3) .785 In that case, Flick J acknowledged that while the circumstances in which a court would allow inspection of material seized was not confined, an applicant would be granted leave to inspect to assess whether or not the respondent has complied with the search order, and to allow the applicant an opportunity to separate those documents seized which were not relevant to the proceeding and which could thus be returned to the respondent.786 His Honour stated that Aristocrat did not stand for the proposition that seized documents may be inspected as an ‘adjunct to the discovery process or to facilitate particulars’.787

Page 126 of 126 Chapter 15 Discovery, Interrogation and Inspection

785 [2008] FCA 1201

.

786 [2008] FCA 1201 at [28]

.

787 [2008] FCA 1201 at [43]

.

End of Document

Chapter 16 Legal Professional Privilege Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 16 — Legal Professional Privilege

Chapter 16 Legal Professional Privilege Page 659 [Current to May 2018]

Introduction

16.1 Communications between clients and lawyers receive special protection in every developed legal system. In Australian law, this protection takes the form of client legal privilege (historically known as legal professional privilege).1 As a rule, privileged communications are immune from compulsory disclosure. Unlike the protection of other confidential relationships, legal privilege confers absolute immunity from disclosure even where the information sought is relevant to an issue before a court of law. Simply put, privileged communications are immune from compulsory disclosure.2

1

For a more detailed discussion of the subject, see A Higgins, Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions, Oxford University Press, 2014. See also J D Heydon, Cross on Evidence, LexisNexis Butterworths, Sydney, 2004, Ch 13.

2

Comfort Hotels v Wembley Stadium [1988] 3 All ER 53; [1988] 1 WLR 872

.

16.2 Legal professional privilege occupies a place of considerable importance in the administration of justice due to its role in facilitating access to justice and access to legal advice and thereby promoting the rule of law. For this reason the privilege is a fundamental constitutional right.3 Communications with one’s lawyer in a private and secure sphere affords litigants a reasonable opportunity to prepare for litigation and to obtain advice about the law and their rights, duties and liabilities.

3

Grant v Downs (1976) 135 CLR 674 (HCA); Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at [35] Davy & Leake (1995) 183 CLR 121

16.3

.

. For a general discussion, see Carter v Northmore Hale

Page 2 of 57 Chapter 16 Legal Professional Privilege The scope of legal professional privilege in Australia is governed by both common law and statute. The privilege has largely though not entirely been codified under the uniform evidence legislation.4 These Acts term the privilege ‘client legal privilege’, in recognition that the privilege belongs to the client, and override the common law to the extent of any inconsistency. While the operation of the privilege under the common law and the uniform evidence law is substantially the same, there are some notable

Page 660 differences in both scope and content. The uniform evidence legislation originally only applied to the adducing of evidence, which meant the adducing of evidence at trial or interlocutory proceedings.5 The phrase ‘adducing of evidence’ does not cover the most common scenario in which privilege is claimed, that is, as a reason for not complying with some obligation to produce documents in a pre-trial setting or in non-curial contexts.6

4

Evidence Act 1995 (Cth) ss 118 and 119; Evidence Act 2011 (ACT) ss 118 and 119; Evidence Act 1995 (NSW) ss 118 and 119; Evidence Act 2001 (Tas) ss 118 and 119; Evidence Act 2008 (Vic) ss 118 and 119. The Northern Territory and Norfolk Island have also adopted the Uniform Evidence Law (Evidence Act 2004 (NT), Evidence Act 2011 (NUL)) but Queensland, South Australia and Western Australia have not.

5

Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318 CLR 49; 168 ALR 123; [1999] HCA 67 at [16]–[17],[64],[146]–[149] [1999] HCA 66 at [27],[144]

6

; Esso Australia Resources Ltd v FCT (1999) 201 ; Mann v Carnell (1999) 201 CLR 1; 168 ALR 86;

.

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 per Perram J.

16.4 Following joint recommendations by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission, the uniform evidence legislation has been amended to cover some pretrial disclosures although the extent to which they do so varies between jurisdictions. The joint report of the law reform commissions recommended that the ‘client legal privilege provisions of the Uniform Evidence Acts should apply to any compulsory process for disclosure’. This would include disclosures both within and outside of litigation including pre-trial discovery and the production of documents in response to a subpoena, search warrants and notices to produce documents.7 This recommendation was adopted by New South Wales on the passage of the Evidence Amendment Act 2007 (NSW), which introduced s 131A. It provides that the client legal privilege provisions in the legislation should apply to situations where production of documents, rather than adduction of evidence, is in issue. When the Victorian Parliament passed the uniform evidence legislation in 2008, it too included a s 131A which, whilst not identical, achieved the same result in terms of client legal privilege. Under the Commonwealth Evidence Act, however, only the journalistic privilege has been extended to cover pre-trial disclosures.8 Perram J was highly critical of the Commonwealth Parliament’s failure to extend the operation of the client legal privilege provisions of the uniform evidence legislation to pre-trial disclosures. In Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2),9 his Honour described the end result as unsatisfactory: The position … is that in Commonwealth Courts the law of client privilege to be applied to questions of evidence will be that contained in ss 118 and 119 [of the uniform evidence legislation] but that where questions of discovery or document production arise it will be that provided for by the common law. The rationality of this position — particularly given a sensible recommendation from not one but three law reform commissions that it be fixed six years ago — is not at once obvious.10

Page 661

Page 3 of 57 Chapter 16 Legal Professional Privilege

7

Australian Law Reform Commission, Uniform Evidence Law, Report No 102, December 2005, Recommendation 14-1.

8

J Gans and A Palmer, Uniform Evidence, Oxford University Press, Melbourne, 2010, 14.1.4. Evidence Act 1995 (Cth) s 131A; Evidence Act 2011 (ACT) s 131A; Evidence Act 1995 (NSW) s 131A; Evidence Act 2001 (Tas) s 131A; Evidence Act 2008 (Vic) s 131A.

9

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057

.

10 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 at [9] .

16.5 Another important limitation on the scope of the uniform evidence legislation is that they are directed to protecting confidential communications and documents, and thus do not extend to communications with fact witnesses, who are not under any implied obligation of confidence, in connection with pending or anticipated litigation. This aspect of litigation privilege is therefore governed by the common law.11 To avoid the anomalies that could arise in the law of privilege depending on whether the common law or the uniform evidence legislation applied, some courts interpreted the common law in a way that was consistent with the uniform evidence legislation even if the legislation did not apply. However, interpreting the common law with the primary aim of achieving consistency between it and the uniform evidence legislation was rejected by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation.12

11 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 12 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [33]

.

.

16.6 There are a significant number of preconditions to a claim of privilege, and differences between the treatment of privilege at common law and under the uniform evidence legislation, so that a pithy and accurate statement of the rule is not possible. Nonetheless, a broad summary may be given which highlights the key requirements of a privilege claim, and the areas that are most keenly contested when a privilege claim is challenged: 1. Under Australian law, all communications between a client and qualified lawyer for the dominant purpose of obtaining, or giving, legal advice (sometimes known as legal advice privilege) or preparing for pending or reasonably anticipated litigation(sometimes known as litigation privilege) are immune from compulsory disclosure. 2. The purpose of a communication or document must be determined objectively.13 3. Legal advice is defined broadly for the purpose of legal advice privilege. It is not limited to telling clients what the law is, but extends to telling clients what should prudently and sensibly be done in a relevant legal context.14 4. For litigation privilege to apply, at common law the proceedings must be ‘adversarial’ in nature,15 and for proceedings to be reasonably anticipated ‘there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not’.16 The existence of a real prospect of litigation

Page 662  

Page 4 of 57 Chapter 16 Legal Professional Privilege does not depend upon a subjective appreciation as to whether there is an arguable cause of action but whether circumstances exist that in common experience may well lead to litigation.17 5.

Privilege is a fundamental human right that can only be abrogated by statute using clear words or by necessary implication.18

6.

Confidential communications with third parties will attract privilege if made for the dominant purpose of litigation, although several jurisdictions have abrogated privilege over communications with experts for certain types of proceedings,19 or for experts who may be called to testify at trial.20

7.

At common law, but not under the uniform evidence legislation, confidential communications with third parties will attract privilege if made for the dominant purpose of obtaining legal advice.

8.

At both common law and under the uniform evidence legislation, privilege will attach to confidential documents, whether or not communicated to a lawyer, provided they were made for the dominant purpose of obtaining legal advice or preparing for litigation.21

9.

Even if a document was not prepared for a legal purpose, sending a copy of it to a lawyer will attract privilege if it was communicated to the lawyer for the dominant purpose of preparing for litigation.22 At common law, but not under the uniform evidence legislation, copies of non-privileged documents will attract privilege if made for the purpose of obtaining legal advice.

10. There is some confusion as to whether documents intended to be disclosed, such as pleadings or witness statements, meet the requirement of confidentiality to attract privilege. There is some authority suggesting that confidentiality is not required for litigation privilege provided the communications meet the requisite purpose test,23 while others have suggested documents intended to be disclosed cannot attract privilege.24 The better view is that all preparatory work in anticipation of

Page 663   litigation is confidential until the privilege holder elects to waive privilege by filing or serving a final document.25 11. There are conflicting dicta as to whether documents which were made for multiple purposes might be redacted so that the part of the document which was made for a legal purpose can be excluded from production while the remainder of the document, which relates to an ordinary business purpose, is disclosed.26 Exactly how this redaction process fits with the dominant purpose test has not been fully explained, nor when deciding whether redaction is possible, which parts of a document the dominant purpose test should be applied to, for example, each sentence, each paragraph, each page, each section etc. It is doubtful that redaction is permitted under the uniform evidence legislation, which requires that a ‘confidential document’ be made for a dominant legal purpose.27 12. ‘Qualified lawyer’ means a lawyer admitted to practice28 and includes in-house counsel provided they are giving independent advice.29 The meaning of lawyer, therefore, is dependent upon the status and function of the adviser. A formal retainer is not however required before a client is able to claim legal advice privilege.30 13. Litigants in person are entitled to claim privilege in respect of communications with third parties and preparatory materials (sometimes known as work product) for the purpose of preparing for pending litigation under the uniform evidence legislation,31 but there is dicta questioning whether the same applies at common law.32 14. Privilege cannot be claimed as between joint privilege holders, that is, where two clients retain the same lawyer in relation to the same matter.33

Page 664   15. Privilege protects only legitimate communications. The privilege does not apply to communications in furtherance of crimes or civil legal wrongs involving deception, deliberate abuse or misuse of legal powers, or deliberate breach of legal duty.34 Under the uniform evidence legislation, the exception applies in furtherance of the commission of a fraud, an offence, a deliberate abuse of statutory power, or the

Page 5 of 57 Chapter 16 Legal Professional Privilege commission of an act that renders a person liable to a civil penalty.35 Privilege will not apply to communications if it would have the effect of defeating a court order.36 16. Privilege can be waived. At common law, this occurs where the conduct of the privilege holder is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect, bearing in mind considerations of fairness to any other interested party. 37 Such conduct may include disclosing privileged material to third parties,38 seeking to rely on privileged material in litigation,39 or putting the contents of privileged material in issue in litigation.40 The uniform evidence legislation largely codifies the common law, but in some scenarios it is possible that its application could produce different outcomes from the common law.41 17. Where privilege is waived, the waiver may extend to related material if, without such disclosure, there is a risk that the selective disclosure would create a misleading picture of the evidence, causing unfairness to an opponent.42 18. Disclosure of privileged material to third parties with whom the privilege holder shares a common legal interest will not constitute a waiver of privilege.43 19. Ordinarily, disclosing an expert report for the purpose of relying on it in litigation waives privilege over all instructions and information provided to the expert, at least if it influenced the content of the report.44

Page 665   20. Inadvertent disclosure of privileged material in litigation does not constitute a waiver of privilege.45 21. A person claiming privilege bears the onus of proving it. A court will determine whether a privilege claim is valid taking into account all the circumstances, including any admissible evidence about the purpose of the document or communication, and has the power to inspect disputed documents in camera if necessary.46 A court will not however inspect documents as an alternative to establishing privilege where a party has failed to put on sufficient evidence in support of a privilege claim.47

13 Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247 at [30] Cole (2006)152 FCR 382; 232 ALR 743; [2006] FCA 571 at [110] 286 ALR 713; [2012]FCA 29 at [83]

; Australian Crime Commission v Stewart (2012)

.

14 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 ; AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 [2009] FCA 1140

; AWB Ltd v

at [82]

; Betfair Pty Ltd v Racing New South Wales

.

15 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [162] Privilege) [1997] AC 16 (HL).

; Re L (a minor) (Police Investigation:

16 Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 [2002] VSCA 59 at [19]; USA v Philip Morris Inc [2004] EWCA Civ 330; [2004] 1 CLC 811

; New South Wales v Jackson [2007] NSWCA 279 at [67]

Perazolli v Bank SA, a division of Westpac Banking Corporation [2017] FCAFC 204

;

.

17 Perazolli v Bank SA, a division of Westpac Banking Corporation [2017] FCAFC 204 at [118] Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 [2002] VSCA 59.

; Mitsubishi Electric

18 Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 ; Cockerill v Collins [1999] 2 Qd R 26 ; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49 at [11],[39],[43],[88],[132]

; R (on application of Morgan Grenfell & Co Ltd) v Special

Page 6 of 57 Chapter 16 Legal Professional Privilege Commissioner [2003] 1 AC 563 FCR 251; [2003] FCA 1059

; [2001] 1 All ER 535

; Mansfield v Australian Crime Commission (2003) 132

.

19 Queensland in relation to personal injury claims: Uniform Civil Procedure Rules 1999 (Qld) r 212(2). 20 South Australia: Supreme Court Civil Rules 2006 (SA) r 160. 21 Evidence Act 1995 (Cth) ss 118(c) and 119(c); Evidence Act 2011 (ACT) ss 118(c) and 119(c); Evidence Act 1995 (NSW) ss 118(c) and 119(c); Evidence Act 2001 (Tas) ss 118(c) and 119(c); Evidence Act 2008 (Vic) ss 118(c) and 119(c); Kennedy v Wallace (2004) 213 ALR 108

(Federal Court of Australia).

22 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (HCA). 23 Southern Equities Corp Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 (FC). For discussion of the authorities, see Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2007) 242 ALR 181; 34 WAR 279; [2007] WASCA 151 at [14]–[33]

.

24 See, for example, Dawson J in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 496; 69 ALR 31 at 45–6 (re pleadings); Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 (re witness statements). 25 This was the alternative basis for the Full Federal Court’s decision in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32

.

26 Compare Waterford v Commonwealth (1987) 163 CLR 54 at 66 and Dawson J (at 102–3).

per Mason and Wilson JJ with Deane J (at 87–8)

27 Evidence Act 1995 (Cth) ss 118(c) and 119(c); Evidence Act 2011 (ACT) ss 118(c) and 119(c); Evidence Act 1995 (NSW) ss 118(c) and 119(c); Evidence Act 2008 (Vic) ss 118(c) and 119(c); S Odgers, Uniform Evidence Law, 11th ed, Thomson Reuters, Sydney, 2014, 1.3.10360. 28 Evidence Act 1995 (Cth) s 117; Evidence Act 2011 (ACT) s 117; Evidence Act 1995 (NSW) s 117; Evidence Act 2001 (Tas) s 117; Evidence Act 2008 (Vic) s 117; Commonwealth v Vance [2005] ACTCA 35 at[21]

.

29 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 ; Rich v Harrington [2007] FCA 1987

.

30 Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1; [2009] FCA 449 ; Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204

.

31 Evidence Act 1995 (Cth) s 120; Evidence Act 2011 (ACT) s 120; Evidence Act 1995 (NSW) s 120; Evidence Act 2001 (Tas) s 120; Evidence Act 2008 (Vic) s 120. 32 National Employers’ Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648 at 654 per Mason J; Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32 at [41]

.

33 Evidence Act 1995 (Cth) s 124; Evidence Act 2011 (ACT) s 124; Evidence Act 1995 (NSW) s 124; Evidence Act 2001 (Tas) s 124; Evidence Act 2008 (Vic) s 124; Re Doran Constructions Pty Ltd (in liq) (2002) 168 FLR 116 34 Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166 at 174

.

per Doyle CJ.

35 Evidence Act 1995 (Cth) s 125(1); Evidence Act 2011 (ACT) s 125(1); Evidence Act 1995 (NSW) s 125(1); Evidence Act 2001 (Tas) s 125(1); Evidence Act 2008 (Vic) s 125(1). 36 R v Bell; Ex parte Lees (1980) 146 CLR 141 (HCA) at 161; Evidence Act 1995 (Cth) s 121(2); Evidence Act 2011 (ACT) s 121(2); Evidence Act 1995 (NSW) s 121(2); Evidence Act 2001 (Tas) s 121(2); Evidence Act 2008 (Vic) s 121(2). 37 Mann v Carnell (1999) 201 CLR 1

.

38 Evidence Act 1995 (Cth) s 122; Evidence Act 2011 (ACT) s 122; Evidence Act 1995 (NSW) s 122; Evidence Act 2001 (Tas) s 122; Evidence Act 2008 (Vic) s 122; Goldberg v Ng (1995) 185 CLR 83; [1995]HCA 39 39 Attorney-General (NT) v Maurice (1986) 161 CLR 475 (HCA) at 484.

.

Page 7 of 57 Chapter 16 Legal Professional Privilege 40 See, for example, Wardrope v Dunne [1996] 1 Qd R 224 at 226 (2006) 151 FCR 341; [2006] FCAFC 86

; see also Commissioner of Taxation v Rio Tinto Ltd

.

41 Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37 ; cf Evidence Act 1995 (Cth) s 122; Evidence Act 2011 (ACT) s 122; Evidence Act 1995 (NSW) s 122; Evidence Act 2001 (Tas) s 122; Evidence Act 2008 (Vic) s 122. 42 Attorney-General (NT) v Maurice (1986) 161 CLR 475 (HCA) at 484. 43 Evidence Act 1995 (Cth) s 122(5)(c); Evidence Act 2011 (ACT) s 122(5)(c); Evidence Act 1995 (NSW) s 122(5)(c); Evidence Act 2001 (Tas) s 122(5)(c); Evidence Act 2008 (Vic) s 122(5)(c); South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 at 76

(Supreme Court of South Australia); Mercantile Mutual Insurance (NSW Workers

Compensation)Ltd v Murray [2004] NSWCA 151

.

44 Australian Securities and Investments Commission v Southcorp (2003) 46 ACSR 438 (Federal Court of Australia) at [21]. 45 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 . 46 Grant v Downs (1976) 135 CLR 674 (HCA) at 689; Hartogen Energy Ltd (in liq) v Australian Gas Light Co (1992) 36 FCR 557; 109 ALR 177

; Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462; 109 ALR 119 at 134

Esso Australia Resources Ltd v FCT (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 at [52] Pty Ltd (recs and mgrs apptd) (in liq) (2006) 203 FLR 1; 59 ACSR 87; [2006] NSWSC 899 at [28] (No 5) (2006) 155 FCR 30; [2006] FCA 1234

(FC);

; Re Southland Coal ; AWB Ltd v Cole

. The court may also inspect a subset of documents for which

privilege is claimed: Perazzoli v Bank SA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 47 Bailey v Department of Land and Water Conservation [2009] NSWCA 100 at [2]

.

per Allsop P.

16.7 The present chapter seeks to examine the scope of the privilege and its implications in practice. Although the essence of the privilege is clear, some of its consequences are problematic, such as the protection given to communications with third parties, its application in intra-corporate disputes, the meaning of legal adviser and the consequences of waiver. To resolve such difficulties and ensure that the privilege provides adequate protection where necessary and is kept within appropriate bounds, it is necessary first and foremost to be clear about the reasons for its existence.

The basis for protection Advice privilege founded on rule of law considerations

16.8 Legal professional privilege in English law was originally limited to communications made in connection with pending or contemplated litigation.48 It was said that since the conduct of litigation required specialist knowledge, litigants ought to have unobstructed access to legal representation. The privilege was later expanded to cover all legal advice, whether or not connected to litigation.49 Although advice privilege and litigation privilege have similar foundations, there is nevertheless an important difference between them, because litigation privilege is derivable from the right to a fair trial, while legal advice privilege is independent of legal proceedings and therefore independent of the right to a fair trial. From the very start, advice privilege was justified by appeal to a more profound principle than the need for professional assistance in legal proceedings. It was founded on what in modern terms is referred

Page 8 of 57 Chapter 16 Legal Professional Privilege

Page 666 to as the concept of the rule of law. The law accords rights and imposes obligations, which in turn can be enjoyed and enforced only if persons are aware of them and understand their implications.A system of rights and obligations must therefore allow adequate facilities for gaining an appreciation of the law, otherwise people would not be able to arrange their affairs and pursue their rights according to the law.

48 See the review of the authorities in Three Rivers District Council v Bank of England (Disclosure) (No 5) [2003] EWCA Civ 474; [2003] QB 1556

; Three Rivers District Council v Governor and Company of the Bank of England (No 6)

[2004] UKHL 48; [2005] 1 AC 610

.

49 Greenough v Gaskell [1824–34] All ER 767; (1833) 1 My & K 98.

16.9 The rule of law is not just an abstract concept. On the contrary, it has important implications for the welfare of individuals and of society.50 The law, as already noted, offers opportunities that can be taken only by those familiar with the powers that the law confers on them. Knowledge of the law allows people to maximise their benefits under the law and facilitates the achievement of individual or group goals, while ignorance of the law limits people’s choices as to how to best manage their affairs. In the absence of secure means by which all citizens can obtain knowledge of the law, its benefits would become the preserve of the few who happen to have the means of obtaining it themselves.51 Secure access to legal advice is also imperative in light of the general principle that ignorance of the law is no excuse. As the legal philosopher Lon Fuller pointed out, ‘there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that is kept secret from him or [is] unintelligible’.52 Thus it would only be fair to say that ‘ignorance of the law is no excuse’ when everyone has the facility of finding out what the law is. In essence, the role of the lawyer is to level the playing field between those who are legally sophisticated and those who are not, thereby ensuring that the presumption of knowledge of the law is not totally devoid of reality.

50 The rule of law rationale (expounded in the 1st edition of A Zuckerman, Civil Procedure, LexisNexis, UK, 2003, [15.8]– [15.10]) was adopted by Lord Scott in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610

at [34]

, and reiterated by the court on several occasions, the latest of which is R (on

the application of Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1 at [120],[143]

.

51 See S L Pepper, ‘The Lawyer’s Amoral Ethical Role: A defence, a problem and some possibilities’ (1986) American Bar Foundation Research Journal 613 at 634. 52 L L Fuller, The Morality of Law, Yale University Press, p 39.

16.10 Since the advice of well-qualified lawyers is one of the principal means by which to gain the necessary knowledge of the law, access to legal advice must be encouraged and protected. As Justice Jackson of the Supreme Court of the United States put it in Hickman v Taylor: [T]he lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs.53

Page 9 of 57 Chapter 16 Legal Professional Privilege Yet, the strong public interest in enabling citizens to benefit fully from legal advice would be defeated if communications between them and their lawyers were subject to the general rules concerning access to evidence. If such communications had to be disclosed whenever they were required for the determination of an issue before the court, clients would feel inhibited from divulging confidential, private or sensitive

Page 667 information to their lawyers for fear that it may be used against them in litigation or be made public.54 Such inhibition is bound to limit the benefit of legal advice.

53 Hickman v Taylor 329 U S 495 (1947) at 515. 54 Greenough v Gaskell [1824–34] All ER Rep 767; (1833) 1 My & K 98; Baker v Campbell (1983) 153 CLR 52

;

; R v Derby Magistrates’Court; Ex parte B [1996] 1 AC Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 487 ; [1995]4 All ER 526, HL; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 . See also Smith v Jones and Southam Inc [1999] 1 SCR 455, Supreme Court of Canada; Upjohn Co v United States 449 US 383 (1981).

16.11 It is an essential condition of meaningful access to legal advice that the client should be able to put all the facts before a legal adviser without fear that this information may afterwards be disclosed to others or used to its prejudice.It may therefore be said that by protecting the confidential relationship between client and lawyer, legal professional privilege underpins a vital element of the rule of law. In Carter v Managing Partner, Northmore Hale Davey and Leake, Brennan J stated that the ‘basic justification for allowing the privilege is the public interest in facilitating the application of the rule of law’.55 A recurring theme in the Australian High Court’s jurisprudence on privilege is the need to protect the ‘liberty’ and ‘dignity’ of all persons, especially the ‘ordinary citizen’, the ‘unintelligent’,and the ‘ill-informed’, in their dealings with the state.56 The privilege is a facilitative right in the sense that it provides ‘a practical guarantee of fundamental, constitutional or human rights’57 including the right to know the law and the right to legal representation.58

55 Carter v Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121 at 127

.

56 See, for example, Baker v Campbell (1983) 153 CLR 52 (HCA) at 95,120; Attorney-General (NT) v Maurice (1986) 161 CLR 475 (HCA) at 484. 57 Carter v Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121 at 161 Australia Resources Ltd v Commissioner for Taxation (1999)201 CLR 49 at [111]

per McHugh J; Esso

per Kirby J.

58 See also R (on the application of Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2002] UKHL 21 at [7]; [2003] 1 AC 563

at [7]

; [2002] 3 All ER 1 at [7]

per Lord Hoffmann.

16.12 We may refer to the rationale that stresses the person’s right to obtain legal advice in order to be able to conduct his or her affairs in accordance with the law as the rule of law rationale.

Litigation privilege required by the right to fair trial

Page 10 of 57 Chapter 16 Legal Professional Privilege

16.13 As noted, originally legal professional privilege was limited to protecting the confidentiality of communications between lawyers and their clients in relation to contemplated or pending legal proceedings, recognising that such protection was necessary to allow full access to legal representation in the proceedings.59 Although it was expanded to protect all legal advice, litigation privilege was, historically at least, distinguishable from advice privilege because it recognises the special needs that litigation creates and therefore extended beyond immediate client–lawyer communications and applies to communications with third parties for the purpose of preparing for litigation.

Page 668

59 Anderson v Bank of British Columbia (1876) 2 Ch D 644

at 649

, CA; Waugh v British Railways Board [1980] AC 521

; Wheeler v Le Marchant (1881) 17 Ch D 675 . See in particular Longmore LJ’s analysis in Three

Rivers District Council v Bank of England(Disclosure) (No 5) [2003] EWCA Civ 474; [2003] QB 1556

.

16.14 Litigation privilege has been regarded as an essential component of the adversarial process in which each litigant is responsible for preparing and presenting its case. It is a basic requirement of fairness that litigants should be able to prepare their case confident that others will not be allowed to invade their sphere of preparation. In Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd, the Full Federal Court stated: The rationale for litigation privilege is different from that of advice privilege, and rests on the basis that, in the adversarial system, the legal representatives and their clients generally control and decide for themselves which evidence they will adduce at trial, without any obligation to make disclosure to the opposing party or parties of the material acquired in preparation of the case.60

60 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32 at [38]

.

16.15 In modern procedure, litigation privilege is closely bound up with the right to a fair trial. In Baker v Campbell, Brennan J stated ‘if the prosecution, authorised to search for privileged documents, were able to open up the accused’s brief while its own stayed tightly tied, a fair trial could hardly be obtained’.61 This statement raises the interesting question as to whether disclosure by all sides would be incompatible with a fair trial, and the protection of third party communications in preparation for litigation has been criticised by several Australian judges and scholars. However, no one doubts that disclosure of communications between lawyer and client in preparing for litigation may seriously jeopardise the client’s ability to obtain a fair trial.

Page 11 of 57 Chapter 16 Legal Professional Privilege 61 Baker v Campbell (1983) 49 ALR 385 at 427

.

16.16 A similar view has been taken in European jurisprudence, concerning the right to fair trial under Art 6 of the European Convention on Human Rights,62 and English law. Privilege, Steyn LJ observed, is ‘an auxiliary principle buttressing the constitutional right of access to justice’.63 Litigation privilege is connected with the right to fair trial in other ways too. It is demanded not only by the right of access to court but also by the right to equality of arms. In order to be able to adequately meet the case of an opponent who is well versed in the law, or who is represented by a lawyer, a litigant may need professional legal assistance, which, again, could only be effective in conditions of complete and inviolable confidentiality.64 The same principle extends to clients who are unrepresented. A private and secure sphere in which to prepare for litigation is just as important for the litigant who prepares its own case without legal assistance as it is for the client who is consulting a lawyer. It is inconceivable that a court would require a litigant in person to turn over their preparatory materials to a legally represented opponent who could withhold their material. Section 120 of the uniform evidence legislation reflects this position, protecting confidential documents

Page 669 or communications of a party who is not represented by a lawyer, provided it was made for the dominant purpose of preparing for, or conducting, the proceedings.65

62 Campbell and Fell v UK (1983) 5 EHRR 207 (ECtHR) at [158]. 63 Oxfordshire County Council v M [1994] 2 All ER 269 at 280 the European Communities Case 155/79 [1983] QB 878

(CA). See also A M & S Europe Ltd v Commission of

at 913

; [1983] 1 All ER 705 at 732–3

.

64 S v Switzerland (A/220) (1991) 14 EHRR 670 (ECtHR) at [46]. 65 Evidence Act 1995 (Cth) s 120; Evidence Act 2011 (ACT) s 120; Evidence Act 1995 (NSW) s 120; Evidence Act 2001 (Tas) s 120; Evidence Act 2008 (Vic) s 120.

Justification for both limbs of privilege founded on empirical assumption

16.17 It should be noted that the justification for the privilege is founded on empirical assumptions as well as on considerations of principle. It is an empirical assumption that, without the protection of confidentiality, clients will not be able to effectively communicate with their lawyers or adequately prepare for litigation. As Dawson J stated in Baker v Campbell: Its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice …66

66 Baker v Campbell (1983) 153 CLR 52 at 75

.

Page 12 of 57 Chapter 16 Legal Professional Privilege

16.18 This assumption is well founded insofar as litigation privilege is concerned. A litigant would be justified in holding back information from its lawyer if it thought that it could get into the hands of its opponent and thereby weaken its case.It is less obvious though whether the same can always be said about communications with a lawyer for the purposes of advice unconnected with litigation. This issue has been considered by English courts relatively recently. Longmore LJ observed in Three Rivers District Council v Bank of England (No 5) that a client seeking assistance in connection with litigation and a client wanting purely legal advice have different interests: one wants to win their case while the other wants accurate legal advice. For the client seeking purely legal advice, the ‘prospect of winning or losing a particular case will normally do nothing to cloud his judgment as to what facts he places before his legal adviser’.67 For the client seeking legal advice on which they can safely rely, self-interest will tend to motivate them to give full disclosure of all potentially relevant matters. This view finds support in the fact that people are not deterred from seeking legal advice about their tax affairs from accountants even though the relationship does not attract privilege, although the Australian Law Reform Commission was critical of this distinction and recommended the creation of a new privilege for accountants.68 While very many clients may not need or even think about the guarantee of confidentiality that the law of privilege provides, in some cases self-interest might not provide a person

Page 670 with sufficient incentive to obtain legal advice in the absence of privilege. Sometimes clients will want advice about past conduct which may give rise to legal liability on their part, and are concerned that the communications could be disclosed to their prejudice. While often such communications would qualify for litigation privilege, litigation privilege only applies to proceedings that are pending or in reasonable contemplation, determined objectively.69 If neither litigation privilege nor advice privilege were available, clients would face a difficult dilemma between getting advice to clarify their legal position at the risk of having those communications disclosed to their prejudice, or refraining from obtaining advice and living with the attendant uncertainty regarding their legal rights and obligations. Sometimes advice privilege is needed where the client’s predominant concern is to protect personal relationships, sensitivities and reputations, rather than their own self-interest. Even if the communications disclosing these sensitivities are not relevant evidence and therefore never become compellable, the prospective client is unlikely to know this until they consult a lawyer and without the protection of privilege they may be reluctant to consult the lawyer at all, or may materially alter their instructions.

67 Three Rivers District Council v Governor and Company of the Bank of England (Disclosure) (No 5) [2003] EWCA Civ 474; [2003] QB 1556

at [26]

; Three Rivers District Council v Governor and Company of the Bank of England

(No 6) [2004] UKHL 48; [2005] 1 AC 610 at [34] per Lord Scott; R (Prudential plc) v Special Commissioner of Income Tax [2009] EWHC 2494 (Admin); [2010] All ER 1113 at [72] (‘the conclusion underlying LPP that there is a need for absolute confidentiality in respect of legal advice may need revisiting’). 68 Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107, 2007, [6.281]. 69 USA v Philip Morris Inc [2004] EWCA Civ 330; [2004] 1 CLC 811 . For litigation to be in reasonable prospect it must not be far-fetched or fanciful, but the possibility does not need to be higher than 50 per cent.

16.19 The soundness of the empirical assumption underlying advice privilege also has to be judged in light of the importance of the interests at stake. Given the fact that the right to know the law and one’s rights and obligations is integral to a system based on the rule of law, a privilege is justified if there is a real risk that in some cases a client might not consult a lawyer or might hold back half the truth if they fear their communications could be disclosed without their consent,even if in very many cases an individual or an organisation would not think twice about making full disclosure to their lawyer in order to obtain accurate legal advice.

The merging of legal advice privilege and litigation privilege in Australian law

Page 13 of 57 Chapter 16 Legal Professional Privilege

16.20 An exceptional aspect of the law of privilege in Australia is the relatively recent extension of legal advice privilege to communications with third parties for the purpose of obtaining pure legal advice in Pratt Holdings v Commissioner of Taxation.70 The effect of the Federal Court’s decision was to wipe out a basic distinction between legal advice and litigation privilege, substantially reducing the gap between their scope.71 This was based on the rationale that the purpose of the privilege is to enable a person to get the best possible legal advice, and to that end clients should be entitled to communicate in confidence with third parties for the purpose of obtaining facts and opinions even if the information is not confidential to the client. Legal advice privilege under the uniform evidence legislation was subsequently expanded to cover confidential

Page 671 documents prepared by third parties, but not confidential communications with third parties.72

70 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 [40].

(Federal Court of Australia, Full Court)at

71 Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107, 2007, [2.23]. 72 Evidence Act 1995 (Cth) s 118(c); Evidence Act 2011 (ACT) s 118(c); Evidence Act 1995 (NSW) s 118(c); Evidence Act 2001 (Tas) s 118(c); Evidence Act 2008 (Vic) s 118(c).

16.21 The rule that third party communications could only qualify for litigation privilege was laid down in the 1871 English Court of Appeal case of Wheeler v Le Merchant.73 The court held that, in the absence of a claim to litigation privilege, only lawyer–client communications qualified for privilege, and communication with a third party would only be protected where the third party was acting strictly as an intermediary between the client and the lawyer. This decision had been followed by Australian courts as recently as 2002, where in Mitsubishi Electric Pty Ltd v Victorian Workcover Authority the Victorian Court of Appeal stated it ‘is not available where one of the parties to the communication is a third party who is not the agent of the client for the purpose of the communication’.74

73 Wheeler v Le Merchant (1881) 17 Ch D 675

.

74 Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 (CA) 336. See also Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245–6

(Fed C of A).

16.22 The Full Federal Court in Pratt abolished this restriction on communications with third parties. The court had to decide whether the client company was entitled to claim advice privilege over a document prepared by a third party accountancy firm, at the client’s request, for the purpose of submitting it to the client’s lawyer to obtain legal advice about a corporate restructure. Finn J said that it was a surprise that this basic question could still be a matter of contest. The main point of difference between Wheeler and Pratt was that in Wheeler the communication was between the third party and lawyer directly (highlighting its legal purpose), whereas in Pratt the relevant document was provided to the client, who wanted to retain control of the process of instructing the lawyer, and who then

Page 14 of 57 Chapter 16 Legal Professional Privilege forwarded it to the lawyer.

16.23 The Full Federal Court held that communications with third parties could qualify for protection under legal advice privilege, provided they were made for the dominant purpose of the client seeking, or the lawyer giving, legal advice. The court held that it was the dominant purpose of the communication rather than the identities of the parties to the communications that was the touchstone for a claim to legal advice privilege.75 The court further stated that the dominant purpose test was an adequate controlling device to prevent an uncontrolled extension of the privilege.76

75 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

(Federal Court of Australia, Full Court).

76 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Federal Court of Australia, Full Court) at [106] per Stone J.

16.24 The rationale given by the Full Federal Court for extending legal advice privilege to documents and communications with third parties — effectively abolishing the primary distinction between advice privilege and litigation privilege — was that many clients would not be able to get complete advice without using the skills and knowledge of third parties to provide all the information needed by the lawyer to properly advise the client. Legal advice privilege that was limited to lawyer–client communications

Page 672 tended to disadvantage individual clients and small companies who did not already have all the information they needed to get the advice they were seeking.77

77 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Federal Court of Australia, Full Court) at [40],[43] per Finn J (n 4).

16.25 While the judgments in Pratt emphasised that the client rule ‘undercut the privilege’78 they did not go so far as to say that the absence of privilege would have a chilling effect on the lawyer–client relationship or the preparedness of clients to obtain information or opinions from third parties to be put before the lawyer.The difficulty with that claim, as Sir George Jessel MR pointed out in Wheeler, is that prior to Wheeler no one had ever suggested protection of third party communications was needed to allow clients to obtain legal advice safely,79 and even the client in Pratt over a century later was willing to obtain information from third party accountants knowing that there was a real risk it could be disclosed.

78 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Federal Court of Australia, Full Court) at [44] per Finn J. 79 Wheeler v Le Merchant (1881) 17 Ch D 675

at 681–3

.

Page 15 of 57 Chapter 16 Legal Professional Privilege

16.26 Nonetheless, once the Full Federal Court decided to abolish the client test at common law, the merits of doing so were quickly accepted. It has been applied by the Full Federal Court to communications between a government department and third party experts regarding proposed legislation for the purpose of the department obtaining better advice from the government’s lawyers.80 The uniform evidence legislation was also amended so that legal advice privilege covers confidential documents prepared by third parties, whether delivered or not, to enable the lawyer to provide legal advice.81 Importantly, however, the statutory advice privilege only covers confidential documents made by third parties, not communications between the client or the lawyer on the one hand and a third party on the other.

80 New South Wales v Betfair Pty Ltd [2009] FCAFC 160

.

81 Evidence Amendment Act 2008 (Cth) Sch 1 amending s 118 so that it now provides that the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person are protected by legal advice privilege where made for the dominant purpose of obtaining legal advice: Evidence Act 1995 (Cth) s 118; Evidence Act 2011 (ACT) s 118; Evidence Act 1995 (NSW) s 118; Evidence Act 2001 (Tas) s 118; Evidence Act 2008(Vic) s 118.

16.27 To a great extent the difference between the Australian and English approaches lies in different conceptions about the purpose of the privilege. The English view, which is a more conventional one, is that the privilege is designed to allow the client to communicate in confidence with a lawyer so as to obtain advice. Information which is not confidential to the client–lawyer relationship does not require protection.82 If the

Page 673 client needs to get additional information to get more complete advice, the prospect of obtaining better legal advice provides an obvious incentive to get the information. By contrast, the Australian approach assumes the purpose of the privilege is to allow clients to obtain the best possible legal advice, or ‘effective advice’ in the words of the Federal Court.83 Therefore all the information needed by a client and the lawyer to fulfil this objective should be protected even if the information is not strictly confidential to the client, or even known by the client prior to consulting a lawyer. These two different rationales for the privilege lie at the heart of the debate about the proper scope of client legal privilege.

82 Three Rivers v Bank of England (No 5) [2002] EWHC 2730 at [33], where Tomlinson J stated: ‘There is no need to protect the confidentiality of the agent’s independent input, since this is unnecessary to enable the principal safely to unburden himself to his legal advisers of what he knows.’ Justice Tomlinson’s decision was overturned on the grounds that the documents in question had been prepared by ordinary employees of the bank and were therefore not part of the corporate client: Three Rivers DC v Bank of England (Disclosure) (No 5) [2003] QB 1556 (CA). This narrow definition of the corporate client has been heavily criticised in Australia and throughout the common law world but recently followed with approval by the English High Court in RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) and SFO v ENRC [2017]EWHC 1017. 83 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Federal Court of Australia, Full Court) at [43].

16.28

Page 16 of 57 Chapter 16 Legal Professional Privilege While the extension of legal advice privilege to third party communications is not without controversy, the merging of two limbs of privilege arguably reflects the fact that they share a core rationale: that people are entitled to a private and secure sphere in which to obtain legal assistance. For this reason it is regarded as a fundamental constitutional right designed to promote the rule of law and the right to fair trial.

Boundaries of legal professional privilege Legal professional privilege belongs to the client

16.29 The privilege belongs to the client, not the lawyer. Therefore, privileged information and documents must not be disclosed without the client’s agreement. The general rule is that once privileged, a communication continues to be privileged indefinitely.84

84 R v Derby Magistrates’ Court; Ex parte B [1996] 1 AC 487 Northmore Hale Davey and Leake (1995) 183 CLR 121

; [1995] 4 All ER 526 (HL); Carter v Managing Partner,

.

Only confidential communications protected

16.30 Since the privilege is intended to protect the confidential nature of communications made with lawyers or in preparation for litigation, the privilege attaches only to communications that have been made in confidence. If a client communicates with his or her lawyer in the presence of a third party, no privilege would attach to that particular communication. Put another way, communications that are not made within the secure and private sphere of the client–lawyer relationship are not protected.85 That confidentiality lies at the heart of the privilege is not doubted. A far more vexed question is when that confidentiality is deemed to be lost so that privilege no longer attaches. In corporate contexts the ability to communicate confidential information — including privileged information and documents — is crucial if organisations are to operate effectively, and it is accepted that in-house distribution of privileged material will not destroy its confidential nature, at least where it is distributed to those agents who need access to the information. However, courts have also recognised that in some cases (the limits of which are yet to be fully defined) it may be necessary for privilege holders to distribute privileged information

Page 674 to third parties, and that such distribution does not automatically amount to a waiver of privilege for all purposes or to all persons.

85 Ainsworth v Wilding [1900] 2 Ch 315

at 321

.

Facts not referable to privileged communications may not be protected

16.31 Not all that passes between a lawyer in their professional capacity and a client is privileged. Matters observed by the lawyer and records kept by the lawyer in connection with their client are privileged only if they are concerned with legal advice that the lawyer gives to their client. Accordingly, the client’s identity is not privileged, nor the fact

Page 17 of 57 Chapter 16 Legal Professional Privilege that the client visited the lawyer on a particular occasion.86 There may, however, be exceptional circumstances where the client’s name is privileged if to reveal it would disclose confidential legal communications in light of what is already known regarding the legal services rendered.87 Similarly, a client’s address is not privileged unless it was communicated confidentially for the purpose of giving or obtaining legal advice.88

86 Parkhurst v Lowten (1818) 2 Swans 194; 36 ER 589; Bursill v Tanner (1885) 16 QBD 1 1203 (CA) VR 697

; Pascall v Galinski [1970] 1 QB 38

at 44

; [1881–5] All ER Rep Ext

; Southern Cross Commodities Pty Ltd v Crinis [1984]

; Commissioner of Taxation (Cth) v Coombes (1999) 92 FCR 240

.

87 Commissioner of Taxation (Cth) v Coombes (1999) 92 FCR 240; 164 ALR 131; [1998] FCA 842 (FC) Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337 at [62],[229]–[234] Commission (2007) 231 CLR 75; 233 ALR 17; [2007] HCA 7 at [12],[27]

; Kennedy v

; Z v New South Wales Crime

.

88 R v Bell; Ex parte Lees (1980) 146 CLR 141 at 144–5,161; 30 ALR 489 at 493,506

; Hamdan v Minister for

Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 642; [2004] FCA 1267 at [21]–[22]

.

16.32 A record made by a lawyer of the date and time of their client’s appointment is not privileged, even if it was for the purpose of obtaining legal advice.89 Time records on attendance notes or time sheets are not privileged as they are not concerned with obtaining legal advice.90 Of course, the courts must be careful that the disclosure of nonprivileged material does not inadvertently lead to the disclosure of the substance of legal advice or confidential instructions provided to the lawyer.

89 R v Crown Court at Manchester; Ex parte Rogers [1999] 4 All ER 35; [1999] 1 WLR 832 90 R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35; [1999] 1 WLR 832

. (CA)

.

The meaning of lawyer

16.33 The archetypal relationship to which privilege attaches is that between client and independent legal adviser practising as such. However, due to the growing trend of obtaining legal advice from in-house lawyers and mixed legal and other professional advice from non-lawyers, there have been moves to expand the scope of privilege to persons other than independent practising lawyers. First, it is sufficient but not necessary for the lawyer to have a practising certificate to be treated as a lawyer for the purposes of the rule. While a current practising certificate is an important indicator of a lawyer’s qualifications to give independent legal advice, because admission to practice of itself carries with it professional obligations to the court, and the court has power to

Page 675 remove or suspend a legal practitioner for improper conduct, a non-practising lawyer can still qualify as a lawyer for the purposes of privilege.91 Even if an adviser does not qualify as a lawyer for the purposes of the privilege, a client’s communications with them can still qualify for protection provided the client mistakenly believed, on reasonable grounds, that they were consulting a lawyer.92

Page 18 of 57 Chapter 16 Legal Professional Privilege 91 Commonwealth v Vance [2005] ACTCA 35 at [21]

.

92 Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 at 134 New Zealand Banking Group (1993) 45 FCR 445 at 456 would suffice.

; cf Grofam Pty Ltd v Australia and

, where the Full Federal Court held that a genuine belief

In-house lawyers

16.34 It is not a requirement that the lawyer be independent from the client; however, they must be functioning as an independent lawyer giving independent advice for a communication to be eligible for privilege. Australia may be unique in adopting a case-specific approach to communications between client and in-house counsel. In contrast to the formalistic approach to in-house counsel adopted by both EU law and English law (to reach opposite results),93 Australian courts will often examine the role or function performed by in-house counsel in the individual case to determine whether a communication or document is properly privileged.

93 Case T-125/03 Akzo Nobel Chemicals Ltd v Commission of the European Communities [2007] 4 CMLR 23 (in-house lawyers are not lawyers for the purposes of the privilege rule); cf Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 (CA) (in-house lawyers can be lawyers for the purposes of the privilege rule).

16.35 The Australian courts recognise that the employment pressures and obligations of in-house lawyers may mean they do not act independently when advising the client, but this is not an inevitable outcome of their employment status. Admittedly,this position appears more the product of a compromise between the judges who believe in-house counsel are not independent and those who believe they are able to give independent advice, rather than a principled view of their position. As an example of this disagreement, in Waterford v Commonwealth, Brennan J said: I am therefore unable to accept the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege. Although this view may seem to give insufficient acknowledgement to the personal integrity, as well as the competence, of many salaried lawyers, we are concerned with a general legal rule which is framed not with regard to the characteristics of individuals but with regard to the influences that naturally attend the relationship of employer and employee.94

Nonetheless, Brennan J believed that government in-house counsel, as opposed to corporate in-house counsel, should still qualify for privilege because Commonwealth, state and territory statutes protected their independence. By contrast, in the same case Mason and Wilson JJ thought that there was no reason to distinguish between inhouse and independent lawyers for the purpose of the privilege. Similarly, Deane J

Page 676 thought that the function of the privilege was in no way diminished in the case where a government seeks legal advice from a governmental lawyer, albeit that the human rights rationale for privilege does not apply. In order to place in-house counsel on the same footing as independent legal advisers, Deane J stated in-house counsel should hold a current practising certificate or work under the supervision of such a person.95

Page 19 of 57 Chapter 16 Legal Professional Privilege 94 Waterford v Commonwealth (1987) 163 CLR 54 at 72

per Brennan J.

95 Waterford v Commonwealth (1987) 163 CLR 54 at 62

per Mason and Wilson JJ. See also Attorney-General (NT) v

Kearney (1985) 158 CLR 510 at 510

per Gibbs CJ, 531 per Dawson J.

16.36 The upshot of these contrasting views is that in Australia corporate or governmental clients are not precluded from claiming privilege over communications with in-house counsel, but it is necessary to establish that counsel were giving independent advice as a condition precedent to claiming privilege.96 The standard for when in-house counsel are acting ‘independently’ under Australian law is not yet clear.97 The authorities have used different formulations to define independence, including the necessity of maintaining ‘professional detachment’,98 avoiding the ‘risk of being compromised’,99 and ensuring the provision of ‘impartial legal advice’.100 These indicia of independence were articulated in cases where the court held that the requisite independence had not been established. In Telstra v Minister for Communications,101 disclosure was sought of communications between a company’s in-house counsel and its senior officers. In Rich v Harrington,102 disclosure was sought of communications between partners in an accounting firm and its ‘Office of General Counsel’. In both cases the court held that the burden on the party asserting privilege to show that in-house counsel were acting independently from their client had not been discharged. In Telstra, Graham J stated that if the ‘personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied’.103 Unfortunately, Graham J did not provide examples. Hence it is difficult to know what type of practical arrangements will satisfy the requirement of independence for an in-house lawyer. It seems clear that in-house government lawyers will generally be considered to be independent especially where they have security of tenure and hold a practising certificate.104 Perhaps because of the difficulties in determining whether in-house counsel were acting independently, in Archer Capital A4 Pty Ltd v Sage Group plc (No 2), the Federal

Page 677 Court expressed doubt as to whether independence was a separate requirement and suggested that the real question was whether the consultation with the lawyer was in a professional capacity.105 In the earlier case of Australian Hospital Care (Pindari) Pty Ltd v Duggan, Gillard J stressed that once an affidavit was sworn testifying to privilege over communications with in-house counsel which satisfied the court that the claim was prima facie valid, the evidentiary burden of proving in-house counsel were not acting independently shifted to the party challenging the privilege claim.106

96 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [35]

; Rich v Harrington [2007] FCA 1987 at [46]

.

97 L Bastin, ‘Should “independence” of in-house counsel be a condition precedent to a claim of legal professional privilege in respect of communications between them and their employer clients?’ (2011) 30 Civil Justice Quarterly 33. 98 Rich v Harrington [2007] FCA 1987 at [40],[58],[60]

.

99 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [35]

.

100 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [12]

.

101 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 . 102 Rich v Harrington [2007] FCA 1987

.

103 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [35]

.

Page 20 of 57 Chapter 16 Legal Professional Privilege 104 See, for example, Waterford v Commonwealth (1987) 163 CLR 54

.

105 Archer Capital A4 Pty Ltd v Sage Group plc (No 2) (2013) 306 ALR 384; [2013] FCA 1098 at [72]–[73] 106 Australian Hospital Care (Pindari) Pty Ltd v Duggan (No 2) [1999] VSC 131 at [65]–[68]

.

.

Non-lawyers providing legal advice

16.37 Whether non-lawyer professionals who provide legal advice as an ordinary part of their professional duties should be treated as a legal adviser for the purpose of the privilege is a controversial issue in Australia and elsewhere. The most obvious case for extending the privilege would be to accountants. Given the obligation to pay tax is a legal one, and a principal source of advice on tax affairs are qualified accountants, one might think it logical that client legal privilege would automatically extend to accountants. The force of this reasoning was recognised by the Supreme Court of the United Kingdom in R (on the application of Prudential plc) v Special Commissioner of Income Tax107 (hereinafter Prudential), where Lord Neuberger said that ‘it is hard to see why, as a matter of pure logic, that privilege should be restricted to communications with legal advisers who happen to be qualified lawyers, as opposed to communications with other professional people with a qualification or experience which enables them to give expert legal advice in a particular field’.

107 R (on the application of Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1 at [39] ; see also Lord Sumption at [114]. This view was also accepted in the lower courts: R (on the application of Prudential plc) v Special Commissioner of Income Tax [2009] EWHC 2494 (Admin); [2010] 1 All ER 1113

; R (on the application of Prudential

plc) v Special Commissioner of Income Tax [2010] EWCA Civ 1094; [2011] 1 All ER 316

.

16.38 In practice, however, clients of accountants in the United Kingdom do not enjoy the formal protection of client legal privilege and instead have had to rely on a series of work product protections (that is, protection for working notes, memoranda etc) and administrative policies for the protection of their confidential communications. This is the case in Australia too. When exercising their statutory powers to compel information, the tax authorities follow guidelines which give protection to certain communications between accountant and client that are of a legal nature, but there are no concrete legal rights vested in the client. While tax authorities will not request production of accountant– client communications for the purpose of obtaining or providing legal advice, source documents which include ‘papers prepared in connection with the conception, implementation and formal recording of a transaction or arrangement and which explain the setting, context and purpose of the transaction or arrangement’ are exempt from this ‘concession’.108 In 2007, the Australian Law Reform Commission

Page 678 recommended statutory recognition of a ‘tax advice privilege’ along the same lines as that which exists in New Zealand.109 While the government subsequently conducted a consultation on the proposal, the matter has not been pursued. Communications between patent attorneys and agents and their clients may qualify for privilege.110

108 Australian Taxation Office, Access and Information Gathering Manual 23 August 2007, Australian Taxation Office, Guidelines to Accessing Professional Accounting Advisors’ Papers 3 December 2007, [2.1]. 109 Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107, 2007, [6.281]. See Tax Administration Act 1994 (NZ) ss 20B–20G.

Page 21 of 57 Chapter 16 Legal Professional Privilege 110 Sepa Waste Water Treatment Pty Ltd v JMT Welding Pty Ltd (1986) 6 NSWLR 41 at 43 Lambert Pty Ltd (1989) 89 ALR 625

; Pfizer Pty Ltd v Warner

.

Meaning of legal advice

16.39 The position is now clear in Australia111 that legal advice is not confined to telling clients what the law is, but also extends to telling clients what should prudently and sensibly be done in a relevant legal context. This is in recognition that it is in everyone’s interests that people can obtain advice from lawyers that is both correct as to the law and sensible as to one’s conduct.112 However, advice that is commercial, administrative or policy in nature will not attract privilege.113

111 AWB Ltd v Cole (2006) 152 FCR 382; [2006] FCA 571 127; [2006] FCA 1200 at [35]–[36]

; Rio Tinto Ltd v Commissioner of Taxation (2006) 235 ALR

; Betfair Pty Ltd v Racing New South Wales [2009] FCA 1140

; Brookfield

Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1; [2009] FCA 449 ; BHP Billiton Olympic Dam Corporation Pty Ltd v Bluestone Apartments Pty Ltd (2013) 115 SASR 586; [2013] SASC 64 at [62]–[64]

; X and Y v Z (2015) 123 SASR 298; [2015] SASC 96 at [31]–[33]

.

112 Three Rivers DC v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610

at [61]

per Baroness Hale. 113 Leary v FCT (1980) 32 ALR 221 at 240

; Work Cover Authority (NSW), (General Manager) v Law Society of New

South Wales (2006) 65 NSWLR 502; [2006] NSWCA 84 at [88],[91]

.

16.40 While the legal test is clear, its application to the facts of particular cases can be very difficult. The problems are well demonstrated by the Federal Court case of AWB Ltd v Cole.114 The case concerned the status of a document which was a ‘draft statement of contrition’ prepared by the managing director of AWB in relation to the Royal Commission into alleged abuse by AWB of the UN’s Oil for Food programme in Iraq. The document was inadvertently produced to the inquiry in response to a notice to produce documents, and it was accepted by all that its mistaken production did not constitute a waiver of privilege. The major impetus for the creation of the draft document was advice that AWB obtained from a crisis management expert and public relations consultant, to the effect that AWB should ‘over-apologize’, sooner rather than later and via a statement by its managing director, so as to deal with the reputational damage AWB had sustained and was likely to sustain in future in connection with the inquiry.115 The draft document closely followed advice provided by AWB’s lawyer who had been part of the conference call between the crisis management expert and AWB in which the recommendation to ‘over-apologize’ was made. The court found that the draft statement of contrition was made for three purposes: to submit it to the crisis management expert for further advice, to submit it to AWB’s lawyer for further advice, and to submit it to the senior executives of AWB for their consideration. In reaching

Page 679 this conclusion, Young J distinguished between the purposes for the creation and distribution of the draft statement and the possible future step of using the statement in connection with the inquiry.116 Young J rejected AWB’s claim that the overarching purpose of the document was for use in connection with the inquiry, or that it formed part of a single wider purpose, and accordingly the privilege claim failed.

Page 22 of 57 Chapter 16 Legal Professional Privilege 114 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234

.

115 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [121]

.

116 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [104]

.

Meaning of reasonably anticipated litigation

16.41 In order to qualify for litigation privilege it is necessary but not sufficient to establish that a document or communication was made for the dominant purpose of litigation. Litigation privilege will only apply to certain types of legal proceedings and, in addition, the litigation needs to be on foot or reasonably anticipated at the time the document or communication is made. Whether litigation is reasonably anticipated is a question of fact that must be determined objectively.117 It must always be borne in mind that communications between lawyer and client for the purpose of obtaining legal advice qualify for legal advice or solicitor–client privilege. Therefore the principal reason for seeking to establish that litigation is reasonably anticipated is that communications with third parties in preparation for litigation are also protected from disclosure. Even this will usually be unnecessary at common law given that legal advice privilege has been extended to third party documents and communications with third parties for the purpose of enabling the lawyer to provide advice, and under the uniform legislation to third party documents for the same purpose.118

117 Warner v Women’s Hospital [1954] VLR 410; [1954] ALR 682

; Grant v Downs (1976) 135 CLR 674 at 682; 11 ALR

577 at 584 ; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 55 Southern Equities Corp Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 (FC).

. See also

118 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Federal Court of Australia, Full Court).The uniform evidence legislation protects confidential documents prepared by third parties although not communications between third parties and the lawyer: Evidence Act 1995 (Cth) s 118(c); Evidence Act 2011 (ACT) s 118(c); Evidence Act 1995 (NSW) s 118(c); Evidence Act 2001 (Tas) s 118(c); Evidence Act 2008 (Vic) s 118(c).

16.42 Under Australia’s uniform evidence legislation, litigation is defined broadly as an Australian or overseas proceeding, and Australian court is defined to include federal, state and territory courts, and persons authorised by law or the parties’ consent to hear evidence, and a person or body required to apply the laws of evidence.119 In AWB Ltd v Cole, the Federal Court held that litigation privilege did not extend to Commissions of Inquiry even though they had the power to compel witnesses and documents. This was because litigation privilege was an aid to adversarial litigation designed to protect the location and retention of witnesses.120 Young J endorsed the decision of the House of Lords in Re L, in which, by a 3:2 majority, it was held litigation must be ‘adversarial’ in order to qualify for litigation privilege.121

Page 680

119 Evidence Act 1995 (Cth) s 119; Evidence Act 2011 (ACT) s 119; Evidence Act 1995 (NSW) s 119; Evidence Act 2001 (Tas) s 119; Evidence Act 2008 (Vic) s 119. 120 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [162]

.

Page 23 of 57 Chapter 16 Legal Professional Privilege 121 Re L (a minor) (Police Investigation: Privilege) [1997] AC 16

(HL).

Dominant purpose test

16.43 Communications and documents will only be protected from disclosure if made for the dominant purpose of obtaining or giving legal advice or preparing for litigation. The basic rationale for making purpose a precondition of privilege is that the rule is designed to facilitate access to legal advice and allow people to adequately prepare for litigation; communications made for these purposes need protection from disclosure, but communications made for other purposes do not warrant protection.In any event the availability of the privilege should not affect the scope or content of such communications.

16.44 In light of the expansive scope of privilege in Australia, the courts rely heavily on the purpose test to keep the boundaries of privilege within sensible limits, and to prevent the unnecessary loss of valuable evidence to the legal process and law enforcement bodies. This is best demonstrated by the Federal Court case of Pratt Holdings Pty Ltd v Commissioner of Taxation.122 When the Full Federal Court extended legal advice privilege to third party communications, it expressed the view that the dominant purpose test was an adequate controlling device to prevent an uncontrolled extension of the privilege.123 Moreover, when the matter was remitted to the first instance judge to apply the dominant purpose test to the relevant document, the court found the test was not met on the facts. Kenny J held that a report from a firm of accountants valuing the company’s business was made for the dominant purpose of providing accounting services to the company (namely valuing the business), and not for the dominant purpose of the company obtaining legal advice, notwithstanding that the valuation was obtained at the request of the company’s solicitor, who was advising on the tax implications of a proposed corporate restructure. Kenny J noted that documents do not acquire the protection of the privilege merely because the principal subsequently makes the advice available to its lawyer when obtaining legal advice.124

122 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 123 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 [106] per Stone J.

(Federal Court of Australia, Full Court). (Federal Court of Australia, Full Court)at

124 Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 at[56] . See also Quality Publications Australia Pty Ltd v Commissioner of Taxation of the Commonwealth (2009) 77 ATR 758; [2009] FCA 1293

.

16.45 The purpose test raises two critical overlapping questions of principle and practice: (i) how significant (or exclusive) should the legal purpose of any communication or document be in order to qualify for privilege? and (ii) what test can give effect to this level of protection which is also capable of being readily applied by parties, their lawyers and the courts given the sheer volume of material subject to compulsory disclosure?

16.46

Page 24 of 57 Chapter 16 Legal Professional Privilege The Australian courts’ approach to the purpose test has fluctuated over the decades. Prior to 1976, it was simply necessary to show that a document or communication had a legal purpose to qualify for privilege even if it was not the main or even a substantial purpose. Then in Grant v Downs, the High Court of Australia substantially tightened the test, requiring that a document or communication be made solely for a legal purpose to attract privilege. Part of the motivation for adopting

Page 681 a sole purpose test was to separate the ordinary internal fact-finding processes of corporations and public bodies from the legal process of obtaining advice about those facts or preparing for possible litigation. Delivering a joint judgment, Mason, Stephen and Murphy JJ stated that the process of management ascertaining what its agents did, or knew, or witnessed as part of an internal investigation, is primarily a business purpose, not a legal one, even if that information is intended to be passed on to the company’s lawyers for advice.125

125 Grant v Downs (1976) 135 CLR 674 (HCA) at 677.

16.47 The purpose test causes no difficulties where the client’s only purpose in communicating with a lawyer (or third party) is a legal one. However, in corporate and governmental contexts very often a communication or document will have multiple purposes only one of which can be properly described as legal. Critics of the sole purpose test believe it does not reflect the modern realities of corporate life where most communications have multiple purposes, but privilege would be denied if a document had any non-legal purpose, no matter how insignificant it might be. A sign that the sole purpose test had fallen out of favour in Australia came when the parliaments that adopted the uniform evidence legislation in the 1990s settled for a dominant purpose test for client legal privilege.126 Predictably, pressure soon came on the courts to modify the common law to bring it into line with the client legal privilege provisions of the uniform evidence legislation, and in Esso v Federal Commissioner of Taxation ,127 the High Court abandoned the sole purpose test in favour of the dominant purpose test. The shift was partly motivated by concerns that the sole purpose test was too narrow and unduly favoured the disclosure of evidence over the protection of confidential lawyer–client communications.128 The majority said of the sole purpose test: If it is to be taken literally, one other purpose in addition to the legal purpose, regardless of how relatively unimportant it may be, and even though, without the legal purpose, the document would never have come into existence, will defeat the privilege.129

Acknowledging that a document should not qualify for privilege merely because a copy of it lands on the lawyer’s desk,130 the majority went on to state that the sole purpose test had ‘altered the balance … to the other extreme’ of disclosure of corporate communications to the detriment of protecting confidential communications between corporations and their lawyers.131

126 Evidence Act 1995 (Cth) ss 118 and 119; Evidence Act 1995 (NSW) ss 118 and 119. 127 [1999] HCA 67

.

128 Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 (HCA) at [73]. 129 Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 (HCA) at [58]. 130 Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 (HCA) at [43]. 131 Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 (HCA) at [73].

Application of the dominant purpose test

Page 25 of 57 Chapter 16 Legal Professional Privilege

16.48 The purpose test is one area where the law of privilege is (mostly) clear on paper, but can be difficult to apply in practice especially in corporate and governmental contexts. Ascertaining whether a communication or document was made for the requisite legal purpose is a question of fact. Accordingly, it is impossible to lay down firm guidelines

Page 682 as to when the purpose test will be satisfied, and previous decisions will be of limited assistance to parties seeking to defend or challenge a privilege claim. Nonetheless, there are some common factual scenarios where one of the purposes of a communication is legal advice or litigation and the courts must decide whether it is the dominant purpose. Key issues include the status of: (a) fact-finding exercises where one of the purposes of the investigation is to prepare for litigation or obtain legal advice, whether conducted by insurers, companies or public bodies; (b) the status of conduct advice; (c) communications seeking multiple types of advice, especially as they apply to new forms of legal practice; and (d) the status of internal corporate communications that are sent to multiple recipients including the company lawyer. There are also questions about the meaning of‘dominant purpose’. The distinction between a dominant and ‘incidental’ or ‘subsidiary’ purpose is generally understood. The High Court of Australia has said that ‘the ruling, prevailing or most influential purpose’constitutes the dominant purpose.132 In AWB Ltd v Cole, it was said that a dominant purpose is one that predominates over other purposes; it is the prevailing or ‘paramount purpose’.133 However, many commonly arising scenarios raise difficult distinctions between the immediate, and ultimate or ‘overarching’ purpose of a communication or document.

132 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 Toohey, Gaudron, Gummow and Kirby JJ. 133 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [44]

per Brennan CJ, Dawson,

per Young J.

The timing of the communication

16.49 The more imminent the risk of litigation, the easier it will be for a company or public body to establish that documents and communications that were part of an investigation were made for the requisite legal purpose. The harder question is whether the reverse is true. Does it follow that the closer the investigation is to the actual accident or event, the harder it will be to establish that preparing for litigation, rather than ascertaining what happened, was the dominant purpose of the communications and reports that constituted the investigation?

16.50 Some Australian courts have not focused on the timing of an investigation per se, but instead looked to the stage of the investigation to determine whether a particular document or communication was made for the dominant purpose of ascertaining the facts or preparing for possible proceedings. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd, Goldberg J stated that: … [i]f evidence is required for proceedings it can be expected that until that evidence gathering process is well advanced, a view will not be able to be formed that proceedings are prospective or reasonably anticipated. That is a reason why it is difficult to ascribe a dominant purpose to the preparation of the anticipated proceedings before the evidence gathering process is well advanced and the evidence has been evaluated.134

Page 26 of 57 Chapter 16 Legal Professional Privilege A difficulty with this analysis is that it appears to equate the purpose of the communication with the question of whether proceedings are reasonably anticipated.

Page 683 Whether litigation is reasonably anticipated is an objective test whereas the purpose test is objective only in the sense that the client or litigant’s own purpose must be determined objectively, taking into account all of the evidence. Nonetheless, the decision does highlight that communications at an earlier stage in the investigation are less likely to qualify for privilege than communications during later phases when there has been an opportunity to evaluate the evidence.135 On the other hand, J D Heydon has suggested that while in some cases the process of investigation is logically and temporally anterior to the point to which proceedings are reasonably contemplated, in others, proceedings can be reasonably contemplated even before an evidence-gathering process has begun.136

134 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 at 423 (Federal Court of Australia). 135 See also Serious Fraud Office v Eurasan Natural Resources Corporation Ltd [2017] EWHC 1017 (QB). 136 J D Heydon, Cross on Evidence, 9th Australian ed, LexisNexis Butterworths, Sydney, 2013, [25235].

Fact-finding exercises in accordance with statutory obligations

16.51 In many situations, companies or public bodies will be required under statute to produce reports into the causes of an event, such as the collapse of the company, or to audit the company’s books. Australian (as well as English and United States courts) have refused to uphold privilege in such circumstances on the grounds that it is impossible to say that creation of the report was for a dominant purpose of obtaining legal advice, or preparing for litigation, rather than complying with a statutory obligation to produce the report.

16.52 In Westpac Banking Corporation v 789TEN Pty Ltd (Westpac),137 the New South Wales Court of Appeal held that privilege could not be claimed over letters that were sent to PricewaterhouseCoopers (PWC), regarding an audit being conducted of Westpac. The letters contained information from the company’s lawyer setting out the likely amount of their contingent liabilities to discharge their obligations under ss 297 and 305 of the Corporations Act 2001 (Cth), under which companies are required to advise the auditors of the likely amount of their contingent liabilities. The court found the dominant purpose of the preparation of the letters was not to provide ‘legal advice’ to Westpac, or in preparation for legal proceedings, but to enable PWC as the bank’s auditor to use the information in the audit.

137 Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321

.

Investigations by public bodies and quasi-public bodies

16.53 Reports prepared by public bodies into the facts of a particular matter, especially where the reports were carried out in accordance with the organisation’s own administrative procedures or to help fulfil its duties under law, even

Page 27 of 57 Chapter 16 Legal Professional Privilege if,strictly speaking, there was no statutory obligation to produce the report, may not qualify for privilege. The case of Grant v Downs is a good example. A report prepared by the Department of Health into the death of a patient at a psychiatric facility had been prepared for a number of purposes: to detect any breaches in security, to detect any failures of staff discipline, to identify ways of preventing further injury or deaths, and

Page 684 to prepare a comprehensive account of the matter for the purposes of any subsequent litigation. Although the justices of the High Court put forward three different purpose tests in Grant v Downs,138 the report failed to pass any of them.

138 Grant v Downs (1976) 135 CLR 674 (HCA): the sole purpose test (per the majority), the dominant purpose test(per Barwick CJ), and the legal purpose must account for the existence of the document (Jacob J at 692).

Multiple recipient communications

16.54 Very frequently in corporate contexts, documents or emails are sent to a number of different people within a company including in-house counsel. No jurisdiction automatically assumes that corporate counsel are acting in that capacity rather than performing an executive function, while in Australia proof is required that the counsel were also providing independent advice. Assuming these tests are satisfied, however, there is still a question of whether the purpose of a communication sent to a number of agents was made for the dominant purpose of obtaining advice or preparing for litigation. The mere fact a document is sent to other officers or departments in the company that are not involved in the process of obtaining legal advice does not necessarily support nor preclude a claim for privilege. The identity of the recipients of a communication does not determine that one intended use of the document was more dominant than other intended uses.139 US courts have been particularly wary of corporate clients seeking to generate privilege claims by copying internal communications to the company lawyer. As the Federal Court stated in US Postal Service v Phelps Dodge Refining Corp, ‘A corporation cannot be permitted to insulate its files from discovery simply by sending a “cc” to in-house counsel.’140 The High Court of Australia echoed this sentiment when adopting the dominant purpose test in Esso v Federal Commissioner of Taxation.141 Nonetheless, sending information to a lawyer does make it easier for a party to prove as a matter of evidence that the communication was made for the requisite purpose of obtaining legal assistance.142

139 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [118]

.

140 US Postal Service v Phelps Dodge Refining Corp 852 F Supp 156 (ED NY 1994) at 163. 141 Esso v Federal Commissioner of Taxation [1999] HCA 67

.

142 A Palmer, ‘Recent Trends in Legal Professional Privilege’, paper presented to Law Institute of Victoria, 18 July 2007.

Whose purpose counts?

16.55 The relevant purpose, which must be determined objectively, is that of the client or litigant in making, or authorising, the communication or document.143 There are obvious difficulties in ascertaining the client’s purpose in corporate contexts where there are often many parties to a communication, and many persons involved in authorising the process that led to the communication or document.When ascertaining a document or corporation’s purpose, the courts usually look to the purpose of senior management in authorising the communication or document, or the process which

Page 28 of 57 Chapter 16 Legal Professional Privilege

Page 685 led to it, rather than the purpose of individual agents who made the document or were party to the communication.144 This is what the courts mean when speaking of determining purpose ‘objectively’; more than one person’s purpose will often be relevant in determining the client’s or prospective litigant’s purpose, especially where there are multiple persons acting on behalf of the client.145 Some cases have suggested that the purpose of a genuine third party who authored a document may be determinative of a privilege claim under the uniform evidence legislation because the legislation does not expressly identify whose purpose counts.146 The difficulty with this interpretation, quite apart from the fact that it divorces the privilege from its underlying rationale of allowing a litigant to prepare for litigation in private, is that in many instances the third party with whom a litigant is communicating will have no legal purpose in mind when doing so. If their purpose is decisive it could have the effect undermining the litigant’s private and secure sphere.

143 Evidence Act 1995 (Cth) s 119(b); Evidence Act 2011 (ACT) s 119(b); Evidence Act 1995 (NSW) s 119(b); Evidence Act 2001 (Tas) s 119(b); Evidence Act 2008 (Vic) s 119(b). 144 Aydin v Australian Iron & Steel Pty Ltd [1984] 3 NSWLR 684 Australian Safeway Stores Pty Ltd [2003] FCAFC 149 FCA 571 at [110]

; Australian Competition and Consumer Commission v

; AWB Ltd v Cole (2006) 152 FCR 382; 232 ALR 743; [2006]

; Powercor Australia Ltd v Perry (2011) 33 VR 548; [2011] VSCA 239 at [20]

Resources Pty Ltd v AIOI Insurance Co Ltd (2012) 295 ALR 99; [2012] FCAFC 19 at [74]–[77] London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm).

; Ensham

. See also West

145 A view shared by J Gans and A Palmer, Uniform Evidence, Oxford University Press, Melbourne 2010, [15.25]. 146 See, for example, Hardie Finance Corp Pty Ltd v CCD Australia Pty Ltd (1995) 67 FCR 594 Corp Ltd v Renaissance Reinsurance Ltd [2007] NSWSC 258 5th ed, LexisNexis Butterworths, Sydney, 2010,[5.42].

; New Cap Reinsurance

; A Ligertwood and G Edmond, Australian Evidence,

Communications with non-parties and third parties in litigation

16.56 Communications with third parties, including communications between the lawyer and non-parties, or communications between the client and non-parties that are intended to be passed on to the lawyer, made for the dominant purpose of litigation are protected from disclosure.147 The significance of this aspect of litigation privilege has been greatly diminished by the extension of advice privilege to third party communications, but at least in situations where the uniform evidence legislation applies, it is still important because outside of litigation, only confidential documents prepared by third parties, and not communications with third parties, are protected from disclosure.148

147 Evidence Act 1995 (Cth) s 119; Evidence Act 2011 (ACT) s 119; Evidence Act 1995 (NSW) s 119; Evidence Act 2001 (Tas) s 119; Evidence Act 2008 (Vic) s 119; Southwark Co v Quick (1878) 3 QBD 315

.

148 Evidence Act 1995 (Cth) ss 118(c) and 119(b); Evidence Act 2011 (ACT) ss 118(c) and 119(b); Evidence Act 1995 (NSW) ss 118(c) and 119(b); Evidence Act 2001 (Tas) ss 118(c) and 119(b); Evidence Act 2008 (Vic) ss 118(c) and 119(b).

16.57 It is not a condition of litigation privilege that the witness or proposed witness expressly (or perhaps even impliedly) agrees to keep the communication in confidence.149 An unsolicited letter from a solicitor to a witness asking him or her for

Page 29 of 57 Chapter 16 Legal Professional Privilege

Page 686 information would be privileged in the hands of the client and the lawyer. However, if evidence of the communication is sought from the third party,privilege cannot be asserted by the client unless the third party made the communication under a duty of confidence, or at least with some knowledge that it was intended to be kept private.150 Moreover, the witness is under no duty to keep confidential the information that they acquired independently of the party approaching them, and would be duty bound to disclose it if called to testify by any party to legal proceedings. In Southern Equities Corp Ltd v West Australian Government Holdings Ltd, it was held that a witness statement in the hands of the client or lawyer was privileged ‘whatever might be the capacity or potentiality of the witness to disclose his statement to others’.151 Indeed, a mere witness, who has volunteered a statement to one party, is perfectly free to communicate the same statement to any other interested party ‘or the world at large’.152

149 ISTIL Group Inc v Zahoor [2003] EWHC 165, Ch; [2003] 2 All ER 252

.

150 Cf Public Transport Authority of WA v Leighton Contractors Ltd [2007] WASCA 151 at [33]–[35] (McLure JA stated ‘It is sufficient in my view if the lawyer, to the knowledge of the witness, intended the communications to be and remain private’) with Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132

.

151 Southern Equities Corp Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 at 5

per Malcolm CJ.

152 J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (1992) 38 FCR 452 at 457 See also Ritz Hotel Ltd v Charles of the Ritz Ltd (1998) 14 NSWLR 132.

per French J.

16.58 In some circumstances, a non-party who provides assistance with litigation may be under a duty of confidentiality to the client. Where a party obtains expert advice, the expert undertakes a duty of confidence by virtue of their retainer. Accordingly,where a claimant has obtained a medical report about their injuries, the expert may not divulge the confidential communications.153 It should be stressed, though, that confidentiality alone provides no excuse for refusing to make disclosure, as the law of confidentiality does not confer absolute immunity from disclosure. Moreover, the expert may still be called by an opponent and asked to testify about the facts that they observed and the conclusions they reached because privilege attaches only to what the client said to the expert and what the expert said to the client.154 Communications with experts in connection with litigation are a matter of particular concern because the privilege cloak can be used both to shape an expert’s evidence or to ‘shop’ for a favourable expert opinion.

153 ISTIL Group Inc v Zahoor [2003] EWHC 165, Ch; [2003] 2 All ER 252

.

154 Harmony Shipping Co SA v Davies [1979] 3 All ER 177; [1979] 1 WLR 1380 [1983] 1 WLR 411

; R v King [1983] 1 All ER 929;

.

What aspects of communications with experts are privileged

16.59 In some Australian jurisdictions, legal professional privilege has been removed from expert reports. In Queensland, privilege has been abrogated in relation to communications with experts in personal injury matters.155 South Australia has also abrogated the privilege, although privilege will still apply to communications with shadow experts,

Page 30 of 57 Chapter 16 Legal Professional Privilege who help the parties prepare for proceedings, provided they sign a certificate stating that have not been retained to give evidence or previously expressed

Page 687 an opinion about the case.156 The practical effect of these changes may, however, simply be that experts are now routinely consulted by phone or in person, and only when a litigant is satisfied that the expert’s opinion supports its case does it then formally instruct them in writing. One way of dealing with this problem is to adopt the English practice of requiring parties to nominate the experts from whom they wish to obtain an opinion prior to doing so.157 Such a practice will reduce the risk of ‘expert shopping’.

155 Uniform Civil Procedure Rules 1999 (Qld) r 212(2). 156 Supreme Court Civil Rules 2006 (SA) rr 160–161. 157 Civil Procedure Rule 35.3.

16.60 Even in jurisdictions where privilege over expert communications is recognised, not all expert-related communications and documents are privileged, and when a litigant seeks to rely on the expert’s evidence by waiving privilege in their report, a high degree of transparency over the evidence-creating process is required. In such cases, the court must decide to what other material the waiver extends, to ensure that the privileged material that is disclosed, that is, the report, does not create a misleading picture of the expert’s evidence. The Federal Court case of Australian Securities and Investments Commission v Southcorp158 sets out the key principles in this area. Lindgren J stated: 1.

Ordinarily the confidential briefing or instructing by a prospective litigant’s lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege.

2.

Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client’s lawyers and the expert witness, ordinarily attract the privilege.

3.

Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness’s own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications.

4.

Ordinarily disclosure of the expert’s report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above,at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents.

5.

Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents.

6.

It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report.

158 Australian Securities and Investments Commission v Southcorp (2003) 46 ACSR 438 at [21]

.

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16.61 Southcorp has been broadly cited and applied by the Federal Court159 and the majority of state courts.160 However, not all of the principles outlined in Southcorp are uncontentious. In particular, in relation to the third principle concerning an

Page 688 expert’s work product, it has been suggested that an intention to communicate the document (such as a draft report) may be sufficient to attract privilege.161 It is also possible that such notes and drafts are subject to privilege if their disclosure might reveal the substance of a privileged document or communication.162 The third principle in Southcorp can be contrasted to the approach under the uniform evidence legislation, where s 119(b) protects the contents of confidential documents whether communicated or not. Experts’drafts and working notes will be protected provided they were created for the dominant purpose of preparing for litigation.

159 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234

.

160 See, for example, Watkins v Queensland [2008] 1 Qd R 564 Electricity Pty Ltd [2013] VSC 33

.

161 Brookfield v Yevad Products Pty Ltd [2006] FCA 1180 at [15] apptd) (in liq) (2006) 203 FLR 1

(Queensland Court of Appeal); Matthews v SPI

. See also Re Southland Coal Pty Ltd (recs and mgrs

.

162 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234

.

16.62 As to the fourth principle outlined by Lindgren J in Southcorp, several cases have sought to limit the scope of collateral waiver to documents and communications that were reasonably necessary to an understanding of the expert’s report. In ML Ubase Holdings Co Ltd v Trigem Computer Inc,163 Brereton J stated: ‘if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary.’ It is suggested this interpretation of collateral waiver fails to take account of the expert’s role of helping the court understand the evidence; the question is not whether the court can understand the expert’s report, but whether the court can understand how and why the expert formed their opinion as set out in their report.

163 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859

.

The case for limiting protection of communications with non-parties

16.63 There is arguably some tension in Australian law concerning the approach to third party communications. While the courts, and the uniform evidence legislation, have extended privilege to third party documents in order to enable clients to obtain the best possible legal advice without fear of disclosure, the protection of third party communications in litigation has come under greater scrutiny, especially in relation to expert evidence.

Page 32 of 57 Chapter 16 Legal Professional Privilege

16.64 Several Australian federal court judges, including a former Chief Justice of the High Court of Australia, have questioned the rationale for extending privilege to communications with third parties.164 In J-Corp Ltd v Australian Builders Labourers Federated Union of Workers, French J (as he then was) held that litigation privilege did not attach to a video tape on which the client had filmed a picket line to give to lawyers for the purposes of industrial proceedings. While accepting that the tape was made for the sole purposes of litigation, French J held that the tape was in the nature of real evidence of a public event. To uphold a claim of privilege would be ‘to accord excessive respect to the adversarial aspects of litigation and insufficient weight to the

Page 689 objective of determining in litigation the facts in issue’.165 He also questioned whether there was sufficient justification for litigation privilege, observing: The privilege attaching to statements taken from potential witnesses may not be supportable by public interest considerations of the same order as enunciated in Grant v Downs in relation to solicitor/client communications … It may be that the time has come to reconsider whether such privilege as attaches to witness statements ought to continue although it may be questionable whether it can be affected by judicial decision.166

Similarly, in England, Lord Scott has criticised litigation privilege on a number of occasions and also called for a review of its scope in light of the modern practice under the Court Procedure Rules of conducting litigation with one’s cards on the table, face up.167

164 Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 at 67 per Pincus J (who referred to litigation privilege as ‘this rather unattractive body of doctrine’); J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (1992) 38 FCR 452 at 457

per French J.

165 Cf Nagan v Holloway [1996] 1 Qd R 607 and Boyes v Collins (2000) 23 WAR 123 . Video recordings made confidentially can attract privilege under the uniform evidence legislation, which extends to ‘any record of information’:Evidence Act 1995 (Cth) ss 119 and 120; Evidence Act 2011 (ACT) ss 119 and 120; Evidence Act 1995 (NSW) ss 119 and 120; Evidence Act 2001 (Tas) ss 119–120; Evidence Act 2008 (Vic) ss 119–120. 166 J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (1992) 38 FCR 452 at 457

.

167 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610

at [32]

.

16.65 Litigation privilege was historically devised to remove a practical disincentive to obtaining legal advice or legal assistance in litigation; namely, the risk that what a person discloses about their affairs to the lawyer could be used against them. It was for this reason that McHugh J said in Mann v Carnell168 that disclosure of privileged communications to third parties should be determinative of waiver at common law. The issue of waiver is discussed below, but McHugh J is right to point out that communications with third parties contain, by definition,information that is not confidential to the client and thus beyond what the privilege is designed to protect. By extending privilege to third parties, the law assumes that the process of gathering facts in order to obtain legal assistance, or creating evidence for the purpose of legal proceedings, also requires protection.

Page 33 of 57 Chapter 16 Legal Professional Privilege 168 Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66 at [118]

.

16.66 It is widely accepted in Australia that the evidence-creating process should be disclosed, at least in relation to experts where the end product of the creative process, that is, the expert’s report, is used in proceedings, and related communications are needed to assess the reliability of that evidence. Whether the process of gathering facts — be it for the purposes of obtaining advice or conducting litigation — requires protection is a more difficult question.

16.67 In the context of litigation, there is a general trend away from treating civil litigation as an adversarial contest between parties who are free to choose what cards in their hand they will play, and when they will play them. Instead, under modern case management practices, litigation is now conducted in a much more open manner, including early disclosure or exchange of key materials including witness

Page 690 statements.169 Defenders of litigation privilege argue that without it, parties may be deterred from collecting the evidence needed to conduct their claims or defences, which would hinder the administration of justice, because it would increase the risk of incorrect decisions. However, this argument overlooks the practical incentives that parties have to gather relevant evidence — incentives generated by the burden and standard of proof. While it cannot be doubted that removing litigation privilege might alter the way evidence is collected (it is likely to lead to more oral communications, for example, while parties are preparing for litigation), the crucial factor for litigants in deciding what evidence to collect is what seems necessary and practicable in order to win the case, even if there is a risk that some of this private investigation may backfire.170 Unless a claimant presents credible evidence in support of its claim, it will fail. Once it does so, the defendant has little practical choice but to respond by adducing its own credible evidence. The point was neatly summarised by J D Heydon:‘a party against whom evidence on a particular issue has been given will often be well advised to adduce evidence on it in order to avoid defeat, or even be obliged to do so in consequence of a presumption of law.’171

169 See Chapter 11 on case management. 170 See A Ligertwood and G Edmond, Australian Evdence, 5th ed, LexisNexis Butterworths, Sydney, 2010, [5.46]. 171 J D Heydon, Cross on Evidence, 9th Australian ed, LexisNexis Butterworths, Sydney, 2013, [7205]. See also DPP v Morgan [1976] AC 182 (HL) at 200.

16.68 A further important consideration arises from the fact that preparation for litigation may involve the production of evidence to be presented at the trial. Where this is the case, it would only be fair to allow other parties to probe the process that culminated in the production of the evidence adduced at the trial in order to test its reliability. Where the evidence produced at the trial is not simply the result of a fact-gathering process but the outcome of an evidence-creating process, there is no justification for allowing privilege to hamper the probing of the creative process.

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16.69 Taken together, these factors suggest the need to review the extent to which litigation privilege attaches to communications with non-parties.172 The main object of such a review would be to consider the appropriate balance between, on the one hand, the need to provide clients and litigants with a private and secure sphere for preparing for litigation and obtaining advice, and, on the other hand, the need to provide other litigants with adequate means of testing the evidence presented at the trial, and law enforcement agencies adequate means to investigate potential breaches of the law. One compromise solution worth examining is the attorney work product doctrine developed in the United States. The Supreme Court accepted that proper preparation of a client’s case demands that information be assembled and sifted, legal theories be prepared, and strategy be planned ‘without undue and needless interference’.173 On the other hand, the administration of justice requires disclosure of relevant nonprivileged facts, which are necessary for preparation of the opposing party’s case,

Page 691 would otherwise remain hidden under the cloak of privilege, especially if the witness is unavailable. The rule has been codified in r 26(b)(3) of the Federal Rules of Civil Procedure. It states that discovery of ‘documents and tangible things … prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative’ could be obtained only ‘upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means’. The burden of satisfying r 26(b)(3) rests on the party seeking disclosure. It follows that showing that the documents are relevant to a party’s case is not sufficient, nor is the fact that a party will incur expense or inconvenience in getting the information by other means. The greater the forensic importance of the document and the greater the difficulty in obtaining its substantial equivalent, the more likely a court will order disclosure of the work product. Where the witness is no longer available, or the witness can no longer remember the events in question, a court is likely to order the production of a witness statement or notes of interview.

172 Cf Murphy J’s view in the Australian case of Baker v Campbell (1983) 153 CLR 52 at 90 . See N Williams, ‘Four Questions of Privilege: The Litigation Aspect of Legal Professional Privilege’ (1990) 9 Civil Justice Quarterly 139. 173 Hickman v Taylor 329 US 495 (1947) at 511.

Copies of unprivileged documents

16.70 A document or communication must be made for the requisite legal purpose: that is, the purpose must precede the communication or document. Forming an intention to use an existing document, or the information contained in a communication, for a legal purpose does not render the communication or document privileged. However, the issue becomes complicated where non-privileged documents are copied for a legal purpose. In England, a non-privileged document will not attract privilege merely because it is subsequently communicated to a lawyer.174 Similarly, in Canada, copies of non-privileged documents, whether or not made for a legal purpose, are not protected from disclosure.175 This ‘common sense’ approach is not followed in Australia.176 In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (Propend), the High Court of Australia stressed that the purpose of the privilege is to protect communications,rather than documents per se. Accordingly, where a copy of a pre-existing document is communicated to a lawyer for a legal purpose, the copy will be privileged even though the original is not.177 This rule has also been applied to email communications where a non-privileged email is forwarded (which the courts treat as copying) to a lawyer for legal advice.178 In essence, the Propend decision treats pre-existing documents on a par with facts known by the client: both are compellable

Page 692 in the hands of the client, but privileged when communicated to the lawyer. Yet it is far from obvious that pressing the photocopy button can be treated as a ‘confidence’ in the same way as a communication between lawyer and

Page 35 of 57 Chapter 16 Legal Professional Privilege client. In substance, the contents of copies of non-privileged documents are more akin to underlying facts than they are to communications, and the privilege does not protect underlying facts from disclosure. It is doubtful that the rule in Propend applies to copies under the uniform evidence legislation because ss 118(c), 119(b) and 120(1)(b) refer to a confidential document being ‘prepared’ for one of the privileged purposes.

174 Ventouris v Mountain (The Italia Express) [1991] 1 WLR 607 (CA). Note, however, if a document was not brought into existence for the purpose of litigation, privilege will attach to a copy of it made for the dominant purpose of litigation (The Palermo (1883) 9 PD 6). In addition, an original document not made in connection with litigation will still attract privilege if it was collected by a lawyer for the dominant purpose of litigation and its disclosure would tend to betray the advice given by the lawyer or their strategy (Lyell v Kennedy [1881–5] All ER Rep 814). 175 General Accident Insurance Co v Chrusz (1999) 45 OR (3d) 321 at 334–6 (Ontario Court of Appeal); Mitsui & Co (Point Aconi) Ltd v Jones Power Co [2000] NSJ No 258 2000 NSCA 96 at [35] (Novia Scotia Court of Appeal). 176 A Ligertwood and G Edmond, Australian Evidence, 5th ed, LexisNexis Butterworths, Sydney, 2010, [5.48]. 177 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 178 Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling) [2016] VSC 404 at [46]

.

.

16.71 The decision in Propend has resulted in conflicting authorities as to whether an original document which was not created for a legal purpose, but was subsequently communicated to a lawyer for a legal purpose,should attract privilege at common law. In GSA Industries, Holmes J observed that it is arguable that because it is the communication and not the document which is protected, the relevant time for determining the purpose of the communication may be later than the creation of the document.179 The better view is that the relevant point in time is when the document is created, not when it is communicated. This was the position taken by the Full Federal Court in Barnes v Commissioner of Taxation180 and is consistent with the uniform evidence legislation.181 Were it otherwise, corporations could conceal sensitive documents under the cloak of privilege by forwarding them to a lawyer. Of course, deliberate attempts to conceal information would not satisfy the dominant purpose test, but it is unrealistic to expect the dominant purpose test, which often involves a fact-intensive inquiry, to bear the whole burden of ensuring that compellable information remains available in legal proceedings and investigations.

179 GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at 154 180 Barnes v Commissioner of Taxation [2007] FCAFC 88

[34].

.

181 Where a document must be prepared for a privileged purpose.

16.72 Regulators contend that the decision in Propend could lead to a real loss of evidence to the law enforcement process.182 While the Propend privilege does not apply if the original is destroyed, where the original is lost or otherwise unavailable the copy is still privileged. For these reasons the Australian Law Reform Commission recommended that the Propend privilege be brought closer into line with the English rule, and limited to situations where the copies would disclose or lead to the discovery of confidential advice.183 Even the more limited English rule is open to criticism.184 While historically the protection of litigation strategy has been considered to be important to the adversarial system, it is now generally accepted that litigation should be conducted more transparently.185 Similarly, efficiency is accorded much greater importance in order to resolve proceedings fairly, at proportionate cost, and in a

Page 36 of 57 Chapter 16 Legal Professional Privilege

Page 693 reasonable time.186 It is true that disclosure of the information may reveal a party’s legal strategy, but where a party must serve all the evidence on which it intends to rely at trial in advance, this strategy must be revealed sooner rather than later anyway. The law can either ensure that relevant documentary evidence is available, or keep secret a party’s strategy in copying or selecting documents, but it cannot do both. Faced with this choice, and the limited benefit involved in protecting litigation strategy, the guiding principle should be that all relevant non-privileged documentary evidence is available to the court. In his dissenting judgment in Propend, Dawson J stated: [L]egal professional privilege … exists in order to preserve the confidential relationship between client and legal adviser, a relationship which is to be fostered and preserved for the better working of the legal system. However,that relationship is not impaired and the interests of justice are best served if the client or his legal adviser on his behalf is compelled to disclose a copy of a document when production of the original might be compelled without any ground for objection.187

182 Australian Taxation Office Submission LPP 65, 22 June 2007, quoted in Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107, 2007, [3.79]. 183 Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, Report 107, 2007, [3.81] (n 20). 184 In Ventouris v Mountain (The Italia Express) [1991] 1 WLR 607 technical and ripe for reconsideration (at 617).

(CA), Bingham LJ described the rules as overly

185 ‘With cards on the table, face up’: B v John Wyeth & Brother Ltd [1992] 1 WLR 168

(CA) per Lord Woolf.

186 CPR 1.1; Federal Court of Australia Act 1976 (Cth) s 37M; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

.

187 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 520

.

16.73 In some cases, the disclosure of non-privileged documents given to, or collected by, a lawyer could reveal the contents or direction of legal advice being given. Material will be privileged if the substance of legal advice can be inferred from it, even if the document is not itself legal advice or a lawyer–client communication.188 However, in the case of copies of non-privileged documents it is difficult to imagine how proof of their passing to a lawyer could reveal the substance of legal advice. It is also doubtful whether the substance of legal advice can ever be inferred, as a matter of fact, from a copy of a non-privileged document, as distinct from causing a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice. The latter is insufficient to ground a privilege claim as Young J made clear in AWB Ltd v Cole (No 5).189 If there are any annotations on a copy of a non-privileged document, they could be redacted if they give a clue to the trend of advice being proffered. In most cases, disclosure of the copy of non-privileged document could be made without having to disclose the fact of its communication to a lawyer.

188 Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 333–4 Propend Finance Pty Ltd (1997) 141 ALR 545 at 559 [2006] FCA 1234 at [132]

; Australian Federal Police v

per Gummow J; AWB Ltd v Cole (No 5) (2006) 155 FCR 30;

; Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling) [2016] VSC 404

189 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [133]

.

.

Page 37 of 57 Chapter 16 Legal Professional Privilege

Documents that are not communicated to a lawyer

16.74 There is no requirement in Australia to physically send a document to a lawyer for privilege to apply, but there probably is a requirement that the document was brought into existence to use it or its contents to obtain legal advice. The uniform evidence legislation is clear that privilege will attach to a confidential document (whether delivered or not) made for the purpose of obtaining legal advice or preparing for litigation.190 There are statements to similar effect from the High Court

Page 694 of Australia,191 but there is also High Court authority stating that the privilege is intended to protect communications, not documents per se.192 Reflecting this latter principle, some Federal Court cases suggest that there must be at least an intention to communicate the information for the purpose of obtaining advice. For example, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd, Goldberg J stated: ‘The [legal] purpose must be for the purpose of communicating information for the giving of legal advice, communicating the legal advice itself or communicating information to be used in existing or apprehended litigation.’193

190 Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic) ss 118(c) and 119(c); Sudgen v Sudgen (2007) 70 NSWLR 301; [2007] NSWCA 312

.

191 Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 (HCA) at [59]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (HCA) at [114]. 192 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

.

193 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 (Federal Court of Australia) at 423, citing the High Court’s decision in Propend and the decision of the Full Federal Court in Carmody v Mackellar (1997) 148 ALR 210

.

16.75 The English Court of Appeal has taken a very similar approach in the case of Three Rivers (No 5).194 The case was concerned with the status of ‘raw material’ generated by Bank of England employees regarding the collapse of BCCI (Bank of Credit and Commerce International) which was then submitted to a special unit within the bank to deal with an inquiry into the collapse of BCCI, and to liaise with the bank’s lawyers, Freshfields, regarding the bank’s involvement in the inquiry. The Court of Appeal rejected the privilege claims over this raw material on the ground that the employees were not part of the client for the purpose of the privilege.195 However, in remarks that were dicta, the Court of Appeal acknowledged that a client’s preparatory documents could attract the protection of privilege provided they were intended to be communicated to the lawyer.196 In the court’s view, legal advice privilege, as distinct from litigation privilege, was restricted to communications between a client and its legal advisers, to documents evidencing such communications and to documents intended to be such communications even if they were not in fact communicated.197

194 Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474

.

195 Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474; [2003] QB 1556 CA . The House of Lords refused leave and although it subsequently overturned the Court of Appeal’s approach to legal advice privilege in different aspect of the Three Rivers litigation — namely the meaning of legal advice — it did not address the definition of ‘the corporate client’: Three Rivers Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610

.

Page 38 of 57 Chapter 16 Legal Professional Privilege 196 Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474; [2003] QB 1556

CA at [21]

.

197 Three Rivers Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 [72]

at

per Lord Carswell.

16.76 Several Australian cases have been critical of the Court of Appeal’s decision in Three Rivers (No 5). In Kennedy v Wallace,198 in remarks that were obiter, Allsop J (as he

Page 695 then was) said that the decision in Three Rivers (No 5) did not represent the law in Australia to the extent that it refused to recognise legal advice privilege for documents prepared for the dominant purpose of obtaining the legal advice, but not constituting the communication. Allsop J also criticised the decision of Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd to the extent that it suggested a requirement to communicate a document. Neither Goldberg J’s statement quoted earlier, nor the dicta of the Court of Appeal in Three Rivers, is as narrow as Allsop J suggests. The judgments only suggest an intention to communicate the document to a lawyer is required. It is possible that the approach in Australia is closer to the English position than it would at first appear. Allsop J also stated that: … [i]n one sense, it is axiomatic that the purpose must have a connection with the communication, because it must have a connection with the advice that is sought. The protection of the communication protects a document created for the dominant purpose of using it or its contents to obtain advice.199

This statement implies that a document must be at least intended to inform the brief that goes to the lawyer or constitute an aide-memoire.200 Whether this test would cover a document that is prepared by ordinary employees at the request of management, and reviewed by management, before a decision is taken as to whether the document, or its contents, is used in the process of instructing the lawyer is difficult to say. The answer will almost certainly depend on the facts of each case and whether the review process is designed to weed out irrelevant or duplicate information before being sent to the lawyer, or is really intended to inform management of the underlying facts, and to allow them to make a decision about what information they communicate to the company lawyer. In the latter scenario, the most that can be said is that the document was brought into existence for the possible use of obtaining legal advice.

198 Kennedy v Wallace (2004) 213 ALR 108 at [223],[229]–[234] per Allsop J. The majority agreed with this part of Allsop J’s judgment: see [62]. See also Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority (2002) 4 VR 332; [2002] VSCA 59 at [19]

; Australian Competition and Consumer Commission v Visy Industries Holdings

Pty Ltd (No 2) (2007) 239 ALR 762; [2007] FCA 444 at [55]

; Australian Securities and Investments Commission v

Australian Lending Centre Pty Ltd (No 2) (2011) 283 ALR 299; [2011] FCA 1057 at [23] ; Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (No 2) (2012) 287 ALR 760; [2012] FCA 44 at [26]

; Ensham Resources Pty Ltd v AIOI Insurance Co Ltd (2012) 295 ALR 99; [2012]FCAFC 191

199 The wording was taken from the judgment of Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677 200 As was the case in Kennedy v Wallace (2004) 213 ALR 108 at [228]

Privilege protects only legitimate communications

16.77

.

. .

Page 39 of 57 Chapter 16 Legal Professional Privilege Communications made for illegal or improper purposes, such as the furtherance of crime or the commission of fraud or the furtherance of iniquity, are not privileged.201 This principle is not so much an exception to the rule that communications between client and lawyer for the purpose of obtaining legal advice or in connection with litigation are privileged, as a mark of the outer bounds of the definition of privilege. In Propend ,202 the High Court was divided on the question of whether the evidence of the criminal or fraudulent purpose must be admissible according to the general law

Page 696 of evidence. The issue is less significant under the uniform evidence legislation, which has significantly relaxed the restrictions on the use of hearsay evidence.203

201 R v Cox and Railton (1884) 14 QBD 153 ; Evidence Act 1995 (Cth) s 125; Evidence Act 1995 (NSW) s 125; Evidence Act 2008 (Vic) s 125. See also R O’Connor, ‘Legal Professional Privilege: An Engine for Fraud’ (1990) 64 Australian Law Journal 174; A L E Newbald, ‘The Crime/Fraud Exception to Legal Professional Privilege’ (1990) 53 Modern Law Review 472. 202 (1997) 188 CLR 501 at 514; 141 ALR 545 at 553

.

203 Evidence Act 1995 (Cth) Pt 3.2; Evidence Act 2011 (ACT) Pt 3.2; Evidence Act 1995 (NSW) Pt 3.2; Evidence Act 2001 (Tas) Pt 3.2; Evidence Act 2008 (Vic) Pt 3.2.

16.78 Communications for the purpose of seeking legal advice in order to defend oneself from a criminal charge or a claim for fraud are privileged, as are communications made in order to receive legal advice as to the consequences of breach of contract or the commission of tort.204

204 Bullivant v A-G of Victoria [1901] AC 196 553

; [1971] 3 All ER 1192

; Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch

.

16.79 The lawyer need not be party to the alleged fraud or even be aware of the illegality; it is enough that the client intends to use its communications with the lawyer for an illicit purpose.205 In Australia, at common law, it extends to a broad range of legal wrongs that have deception, deliberate abuse or misuse of legal powers, or deliberate breach of legal duty at their heart.206 This includes conduct amounting to ‘a fraud on justice’207 and any sham which the parties intend should not have the apparent, or any, legal consequences.208 Under the uniform evidence legislation, the exception applies in furtherance of the commission of a fraud, an offence, a deliberate abuse of statutory power, or the commission of an act that renders a person liable to a civil penalty.209

205 Williams v Quebrada Railway, Land and Copper Co [1895] 2 Ch 751 . An innocent person does not lose his or her privilege where he or she is drawn into communications with a lawyer as part of another’s illicit activities: Banque Keyser Ullmann SA v Skandia (UK) Insurance Co (No 1) [1986] 1 Lloyd’s Rep 336. 206 Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166 at 174

per Doyle CJ.

Page 40 of 57 Chapter 16 Legal Professional Privilege 207 Attorney-General (NT) v Kearney (1985) 158 CLR 510 (HCA) (n 37) at [17]. 208 AWB v Cole (No 5) (2006) 234 ALR 651 (Federal Court of Australia) at 705 per Young J. 209 Evidence Act 1995 (Cth) s 125(1); Evidence Act 2011 (ACT) s 125(1); Evidence Act 1995 (NSW) s 125(1); Evidence Act 2001 (Tas) s 125(1); Evidence Act 2008 (Vic) s 125(1).

Dishonesty or iniquity?

16.80 A common feature of many earlier Commonwealth authorities is that they apply to legal wrongs which involve dishonesty.210 In Gamlen Chemical Co (UK) Ltd v Rochem Ltd (No 2), the English Court of Appeal stated that: … the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards.211

However, in the 1995 case of Barclays Bank v Eustice,212 the same Court of Appeal went much further, and held that the exception can apply to wrongs where the

Page 697 client’s conduct is ‘iniquitous’. In that case, the defendant entered into transactions at under market value for the purposes of prejudicing creditors’ claims. This was done deliberately and overtly with their solicitor’s assistance. The Court of Appeal held that the defendant’s conduct might not have been dishonest but that the transactions were a breach of s 423 of the Insolvency Act 1986 (UK). The scheme amounted to ‘sharp practice’ and was sufficiently ‘iniquitous’ that public policy required the disclosure of the communications between the defendant and his legal advisers.

210 Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 [2001] NSWSC 698

; [1971] 3 All ER 1192

; Kang v Kwan

.

211 Gamlen Chemical Co (UK) Ltd v Rochem Ltd (No 2) 7 December 1979 (CA) (1980) 124 SJ 276 at 12–13 per Goff LJ. 212 Eustice v Barclays Bank [1995] 1 WLR 1156

(CA); [1995] 2 BCLC 630 at 644–5.

16.81 The Court of Appeal’s decision in Eustice has been followed by some Australian courts. While there are some dicta casting doubt on whether ‘sharp practice’ is sufficient to invoke the crime-fraud exception, it is also clear that Australian courts believe both the rationale for the exception, and its scope, is to prevent conduct that is contrary to the public interest from being concealed under the privilege cloak. In the words of Young J in AWB Ltd v Cole (No 5):213 It is important to bear in mind that the fraud exception is based on public policy grounds. The principle is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest.

213 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234

.

Page 41 of 57 Chapter 16 Legal Professional Privilege

16.82 Eustice has also been applied in Australia in similar fact situations. In Gartner v Carter,214 Lander J held that a communication made for the purpose of facilitating the movement of a client’s assets so as to defeat the claims of secured creditors would fall within the crime-fraud exception because ‘no public interest[was] served by allowing a claim of legal professional privilege’.215 An example of the Australian courts denying privilege on the grounds of public interest, even though the lawyer-client communication was not itself in furtherance of a wrong, is R v Bell; Ex parte Lees.216 In that case, a husband had obtained an interim order giving him custody of a child of the marriage, but in defiance of that order, the wife disappeared, taking the child with her. The wife then instructed a solicitor (who had not been involved in the custody proceedings) to take steps to protect her interest in the matrimonial home. She told the solicitor her address, but expressly requested that the information be kept confidential. Although the wife’s address could be subject to a claim of legal professional privilege if it was communicated confidentially for the purpose of obtaining legal advice, the High Court unanimously held that the information given to the solicitor in those circumstances was not privileged. Wilson J (with whom Aickin J agreed) said that to allow the claim for privilege in those circumstances would be against the public interest.217

Page 698

214 Gartner v Carter [2004] FCA 258 (17 March 2004) at [135]. 215 See also Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964 (26 June 2008) at[19]. 216 R v Bell; Ex parte Lees (1980) 146 CLR 141 (HCA) at 161. 217 The uniform evidence legislation denies privilege to communications if a claim to privilege would defeat the enforcement of a court order: Evidence Act 1995 (Cth) s 121(2); Evidence Act 2011 (ACT) s 121(2); Evidence Act 1995 (NSW) s 121(2); Evidence Act 2001 (Tas) s 121(2); Evidence Act 2008 (Vic) s 121(2).

Joint privilege, joint interest privilege and common interest privilege

16.83 There is a significant degree of confusion regarding the scope and relationship between joint privilege, joint interest privilege and common interest privilege. It is widely accepted that the doctrine of common interest privilege is still in a state of relative infancy.218 Instances where courts have found joint privilege between two parties and joint interest privilege date back to the nineteenth century,219 but there are still very large gaps in the law. There is even a question mark about whether joint interest privilege is a separate category from ‘joint privilege’ and ‘common interest privilege’ and, if so, what cases fall within it. Courts sometimes use the terms joint and common interest privilege interchangeably.220 It is suggested that the categories of joint privilege, joint interest privilege, and common interest privilege are distinguishable from one another by the nature of the legal relationships that they cover, and the legal rights to privilege enjoyed by the parties in those relationships.

218 B Thanki (ed), The Law of Privilege, 2nd ed, Oxford University Press, Oxford, 2011, [6.26]. 219 See, for example, Talbot v Marshfield (1865) 2 DR & Sm 549. 220 See, for example, Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689.

Page 42 of 57 Chapter 16 Legal Professional Privilege

16.84 Parties who jointly retain a lawyer share the same private and secure sphere in which to obtain legal advice or prepare for litigation. In practice this means legal professional privilege vests in both clients jointly in respect of all of the confidential documents and communications that are produced in the course of their joint retainer. In the case of joint privilege holders, each is entitled to assert the privilege against the world, but no privilege arises in disputes between privilege holders; each have equal rights to the material.221 Conversely, as against others privilege cannot be waived in the material without the consent of each privilege holder.222

221 Re Konigsberg [1989] 1 WLR 1257 at 1266 (Ch); Evidence Act 1995 (Cth) s 124; Evidence Act 2011 (ACT) s 124; Evidence Act 1995 (NSW) s 124; Evidence Act 2001 (Tas) s 124; Evidence Act 2008 (Vic) s 124. 222 Rochefoucauld v Boustead (1896) 65 LJ Ch 794

; Re Konigsberg [1989] 1 WLR 1257

at 1266

(Ch).

16.85 In the case of joint interest privilege, there is only one client (and therefore only one privilege holder) but the parties share a joint legal interest in relation to matters on which the privilege holder has taken advice. In some cases of joint interest privilege — for example, company and shareholder, or trustee and beneficiary — it might be possible to describe the non-client as the ‘ultimate client’ in practice if not formally.223 This may be one of the reasons why the terms joint privilege and joint interest privilege are often used interchangeably. The distinction between the two categories matters because in order to attract joint interest privilege — in the absence of a formal client relationship — there must be an identity of interest between

Page 699 the non-client and the client privilege holder. In the case of joint interest privilege, no privilege arises between the client privilege holder and non-client over material produced in furtherance of their joint legal interest. Accordingly, even if the parties fall out, the client privilege holder cannot resist disclosure against the non-client with whom it had a joint interest. The legal material remains privileged against the rest of the world regardless of whose hands it is in. Unlike joint client privilege, where the parties only have a joint interest it is highly unlikely that the privilege holder requires the consent of the non-client before waiving privilege.

223 The Supreme Court of Canada has described this category of privilege as involving ‘trustee-beneficiary relations, fiduciary aspects of Crown-aboriginal relations and certain types of contractual or agency relations’: Pritchard v Ontario (Human Rights Commission), 2004 SCC 31; [2004] 1 SCR 809.

16.86 Even in the absence of a joint interest, the relationship between the parties may still be covered by what is known as common interest privilege. Common interest privilege is closely linked to the doctrine of waiver. Ordinarily, if the privilege holder waives privilege, the waiver extends to all purposes and to all people. However, where the privilege holder shares a common (though not necessarily identical) legal interest with a third party, it is entitled to share privileged material with that third party without waiving privilege against the world. A common interest privilege is not available where parties have conflicting interests.224 Relationships that have been found, or suggested in obiter, to support a claim to common interest privilege include insurer and insured,225 potential underwriter and insured,226 residents bringing a nuisance claim227 or residents opposed to a proposed development,228 and liquidator and creditors.229 Although there is authority to suggest that corporations and their directors share a common interest,230

Page 43 of 57 Chapter 16 Legal Professional Privilege the better view is that a corporation can only act through its agents and hence disclosure to the director is not a disclosure to a third party and hence no issue of waiver arises. Conversely, there is no privilege as between the corporation and directors.231 The common interest rule recognises that a privilege holder can legitimately let others with whom it shares a common interest into its private and secure sphere — by sharing privileged material with them — without waiving privilege against the rest of the world. In other words, common interest privilege allows the privilege holder to waive privilege to a select group of people with whom it shares a common interest whilst being able to maintain the

Page 700 privilege against everyone else. In South Australia v Peat Marwick Mitchell,232 Olson J stated: ‘It is to be borne in mind that the concept of common interest privilege is invoked so as to counter a suggestion that privilege has been waived by the deliberate release or publication of privileged material, by the party entitled to claim privilege, to a third party.’233 While the disclosure of the material does not waive privilege against the world, it does amount to a waiver of privilege against the common interest party, who is thus entitled to use the material in disputes against the privilege holder.As against the rest of the world, the material is still treated as confidential in the hands of both parties but only the client can assert the privilege and it retains the exclusive right to waive it. Finally, common interest privilege is a shield,not a sword, in that a third party cannot cite its ‘common interest’ with the privilege holder as a ground for accessing its privileged material.

224 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410 Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 612

; Farrow Mortgage Services Pty

(CA); Australian Competition and Consumer Commission v

Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 564; 153 ALR 393 at 429–30

(Fed C of A); Patrick v

Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272; [2004] FCA 1249 at [19]–[20]

.

225 Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716 at 725; [1987] 1 WLR 1027 1038–9

(CA); Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993]2 Qd R 341

.

226 Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 227 Buttes Gas & Oil Co v Hammer (No 3) [1981] 1 QB 223 4,490,502

at 243

,251–2

at

,267–8

.

; [1980] 3 All ER 475 at 483–

(CA).

228 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 608

(CA).

229 Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (1998) 84 FCR 472 at 481 230 Farrow Mortgage Services Pty Ltd v Webb (1995) 13 ACLC 1329 at 1332 Ltd v Webb (1995) 13 ACLC 1729

.

(NSW SC) ; Pioneer Concrete (NSW) Pty

(NSW SC).

231 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 608–9 in intra-corporate disputes, see 16.88. 232 South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 at 76

(CA). For discussion of privilege

(Supreme Court of South Australia).

233 See also Pitney Bowes of Canada Ltd v R (2003) 225 DLR (4th) 747 at 751 (Federal Court of Canada); Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 ; R Desiatnik, Legal Professional Privilege in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2005, pp 152–3; R Pattenden, The Law of Professional-Client Confidentiality, Oxford University Press,2003, [16.32].

16.87 Under the uniform evidence legislation, common interest privilege is confined to disclosures in connection with litigation or anticipated litigation,234 but the availability of privilege in legal advice contexts has been recognised at common law.235

Page 44 of 57 Chapter 16 Legal Professional Privilege

234 Evidence Act 1995 (Cth) s 122(5)(c); Evidence Act 2011 (ACT) s 122(5)(c); Evidence Act 1995 (NSW) s 122(5)(c); Evidence Act 2001 (Tas) s 122(5)(c); Evidence Act 2008 (Vic) s 122(5)(c). 235 Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 (NSWSC); Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 Marwick Mitchell (1995) 65 SASR 72

; South Australia v Peat

.

Application in intra-corporate disputes

16.88 All privileged communications of a company are carried on through its agents, who may have just as much interest in the fate of their communications as the company and its shareholders. While the interests of the company and individual agent usually coincide at the time of the communication, there may also be a latent or patent conflict of interest. When a company and an agent disagree about what should be done with those privileged communications, or shareholders seek access to privileged material obtained by the company’s management, there may be a legal dispute as to who the privilege belongs to.

16.89 There is limited case law on these questions in Australian law but there is authority, or at least dicta, in support of the following propositions: •

In principle, directors and employees who are involved in obtaining advice on behalf of a company may also be a client of the company lawyer and thus entitled to assert the privilege jointly with the company.236

•

A company can disclose communications to those within the company and external to the company with whom it shares a common interest without waiving privilege.

Page 701   •

At common law, a company can assert privilege against former directors seeking disclosure of privileged material obtained on behalf of the company during the director’s time in office,237 but the Corporations Act contains a replaceable rule giving former directors access to the company’s books in connection with litigation to which they are, or may be, a party.238

•

Whether shareholders can obtain access to privileged advice obtained by the company regarding the company’s affairs has not been decided. There is conflicting dicta on point.

236 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] 39 NSWLR 601. 237 South Australia v Barrett (1995) 64 SASR 73 238 Corporations Act 2001 (Cth) s 198F.

(Full Court of the Supreme Court of South Australia).

Page 45 of 57 Chapter 16 Legal Professional Privilege

16.90 The most authoritative Australian case on the possibility of joint privilege (and a good example of the courts’ interchangeable use of joint and joint interest privilege and common interest privilege) between a company and its directors is the decision of the New South Wales Court of Appeal in Farrow Mortgage Services Pty Ltd (in liq) v Webb.239 The defendants in the proceedings had all been directors of a company called CH Webb Bros Pty Ltd (CH Webb) before it was wound up. The plaintiff was the liquidator of a company that had made substantial loans to CH Webb, on which it defaulted.CH Webb had engaged solicitors, who in turn instructed counsel. They gave advice about a number of matters relating to the loan and to the distribution of financial liabilities amongst a number of companies in which the defendants held substantial interests.The advice related to (i) the affairs of the company; (ii) the duties of the directors of the company; and (iii) the potential liability of the directors to third parties. The liquidator of CH Webb waived privilege over the legal advice to the liquidator of the plaintiff company, who in turn instructed an accountant. Relying in part on the legal advice, the accountant produced a report that concluded that the defendants should be personally liable for the loans originally made to CH Webb. The defendants applied to the Supreme Court of New South Wales for an order prohibiting the plaintiff from relying on the legal advice on the ground that they held joint privilege in the advice and that the liquidator of CH Webb could not waive that privilege on their behalf.

239 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] 39 NSWLR 601.

16.91 The application was upheld at first instance. Although Young J concluded that there was no joint retainer, and a paucity of evidence, he found the advice was sought and given on behalf of both CH Webb and the defendants. Thus there was joint privilege. By a majority, the Court of Appeal upheld Young J’s decision, although based on slightly different reasoning. Sheller J, with whom Waddell AJA agreed, held that the lawyers were taking instructions from the relevant companies, but also from the respondents in their personal capacity; and that the interests of the various companies and the defendants were inextricably linked. He stated: The respondents’ unchallenged evidence was that they sought advice in relation to their duties and obligations as directors of CH Webb, their possible future personal liability to Farrow, the types of proceedings that might be instituted against them and the steps that they should take in accordance with the duties they owed to the company as directors in relation to various matters.

Page 702   … In my opinion there was sufficient commonality of interest between CH Webb or other Webb companies on the one hand and the respondents on the other to give the respondents the protection of legal professional privilege in regard to the [relevant] documents. The evidence overwhelmingly supported Young J’s conclusion that instructions were given and advice obtained on behalf of both the companies and the respondents. They joined in seeking it and for that reason it might be said that the privilege was a joint privilege. Clearly the evidence demonstrates that the interest of the company of CH Webb and the respondents in the various matters was a shared one and common to all.240

Sheller JA went on to find that even if he was wrong as to the existence of a joint interest, that in the circumstances in which the advice was sought and given, as a matter of fairness waiver by the liquidator could not be treated as waiver by the respondents. He stated: ‘If in principle legal professional privilege vested in a party is not lost by dissemination of the contents of confidential documents to others with a common interest, I think that fairness, in many cases, will require that the privilege not be lost because one of those parties, be it the provider or the

Page 46 of 57 Chapter 16 Legal Professional Privilege recipient, is minded to waive it.’241 This analysis is problematic, because in the absence of a joint privilege, the third party has no independent right to assert the privilege or to waive it.

240 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] 39 NSWLR 601 at 617–18,621. 241 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] 39 NSWLR 601 at 601,621.

16.92 Meagher JA dissented in a short judgment which focused on the distinction between the directors’ personal interest in the advice and their legal interest in the advice. Only if they had a legal interest would a joint client privilege arise. Of the advice, he said this: It was obtained by CH Webb, was paid for by CH Webb, and provided by a solicitor retained by CH Webb. The privileged documents certainly dealt with the legal position of CH Webb’s directors, and it was doubtless in the company’s interest that it should know how its directors stood. The directors were obviously ‘interested’ in the privileged material in the lay sense, but in a legal sense they had no interest in it. Things would be otherwise if, as could have happened,the directors and the company jointly sought the advice.242

In short, unless there was a retainer demonstrating the directors had a legal interest in the advice as clients, the claim to joint privilege would fail.

242 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] 39 NSWLR 601 at 601,603–4.

16.93 The approach in Farrow v Webb has been followed on several other occasions by Australian courts to reach the same result (that is, joint privilege exists), although it is often the company seeking disclosure of the legal advice obtained by a director or by another company in the group.243

Page 703

243 See Doran Construction Pty Ltd (in liq) (2002) 194 ALR 101; [2002] NSWSC 215

; The Shed People Pty Ltd v

Turner (2000) 34 ACSR 609; [2000] SASC 196 (company entitled to access privileged communications between director and defendant law firm, on grounds law firm had been retained jointly by company and director).

Shareholders

16.94 A company and its shareholders are, in principle at least, an archetypal example of joint interest privilege, but also a potentially difficult one because of the complex web of duties and rules governing the relationships between directors,the entity, and its shareholders. One of the reasons for these complex sets of rules is that company law

Page 47 of 57 Chapter 16 Legal Professional Privilege recognises that there is the potential for conflict between members and those managing the company. Different jurisdictions have made quite different policy choices about shareholders’ rights to access the company’s privileged material. In England, a shareholder in the company is entitled to disclosure of all documents obtained by the company in the course of the company’s business,including advice by solicitors to the company about its affairs, but not where the advice relates to hostile proceedings between the company and its shareholders.244

244 Woodhouse & Co Ltd v Woodhouse (1914) 30 TLR 559 ; W Dennis & Sons v West Norfolk Farmers (1943) 1 CG 220; Re Hydrosan (1991)BCLC 418 (Ch); CAS (Nominees) Ltd v Nottingham Forest plc [2002] EWHC 701 (Ch); [2001] 1 All ER 954 per Evans-Lombe J; Arrow Trading Investments v Edwardian Group [2004] EWHC 1319 (Ch); [2005] 1 BCLC 696 at [24]: ‘A shareholder in the company is entitled to disclosure of all documents obtained by the company in the course of the company’s administration, including advice by solicitors to the company about its affairs, but not where the advice relates to hostile proceedings between the company and its shareholders’ (Blackburne J).

16.95 Surprisingly, no Australian cases have directly considered whether a company can assert privilege against a shareholder at common law. Under the Corporations Act 2001(Cth), a court may authorise a member to inspect the books of the company, if it is satisfied that the shareholder is acting in good faith and for a proper purpose; however, the power is discretionary and there is authority to the effect that access will be denied where the application is an attempt to circumvent a claim to legal professional privilege.245

245 Corporations Act 2001 (Cth) s 247A(1); Czerwinski v Syrena Royal Pty Ltd (No 1) (2000) 34 ACSR 245 at 248

.

16.96 A number of Australian judges have made obiter remarks on the correctness of the English case law on shareholders’ rights to access privileged material of a company. In South Australia v Barrett,246 Olson J suggested that a company can assert privilege against a shareholder, and that the earlier English authorities were focused on shareholders’ rights vis-à-vis the company in which they had a beneficial interest. He expressed doubts that the principles underpinning right of access which derived from partnership law and actions against trustees by a cestui que trust — being that a party cannot resist production of documents which have been obtained by means of payment from the moneys belonging to the party applying for their production — apply to the legal relationships between shareholders and a company. However, in another South Australian case, Debelle J of the Supreme Court cited with approval the English cases recognising shareholders’ rights to access the company’s legal advice.247 Unfortunately, no consideration was given to the earlier statements of Olsson J in Barrett.

Page 704

246 South Australia v Barrett (1995) 64 SASR 73 at [78]

(Full Court of the Supreme Court of South Australia).

247 The Shed People Pty Ltd v Turner (2000) 34 ACSR 609 at 612–13; [2000] SASC 196

Loss of privilege — waiver

.

Page 48 of 57 Chapter 16 Legal Professional Privilege

The general principle

16.97 To the extent that privilege is a rule of immunity from compulsory disclosure, the client is entitled to waive its immunity.248 As a matter of general principle, once a client has waived privilege and the document has been disclosed to others or in court, privilege is lost permanently and cannot be reasserted.249 The rationale behind the privilege cannot justify a situation where a client is able to play fast and loose with privilege by choosing to disclose privileged documents when it suits it but withhold them when it does not, and thereby manipulate the adjudicative process to its own benefit. It would undermine confidence in the administration of justice if a litigant were able to waive privilege in its litigation against A but assert it against B, or against A in other proceedings.

248 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 . 249 Black & Decker Inc v Flymo Ltd [1991] 3 All ER 158; [1991] 1 WLR 753

.

Conduct constituting waiver

16.98 The High Court of Australia reaffirmed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd250 that a waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). Express waivers generally cause no difficulties. However, waivers can also be implied by conduct and, in some cases, imputed by law where the actions of a party are inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.251

250 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 . 251 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [30] . See also Evidence Act 1995 (Cth) s 122(1); Evidence Act 1995 (NSW) s 122(1); Evidence Act 2008 (Vic) s 122(1).

16.99 In Mann v Carnell, the High Court of Australia stated that disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.252 The principle was expressed in general terms and is replicated in s 122(2) of the Uniform Evidence Acts. An earlier decision of the High Court found that the notion of fairness was the touchstone for deciding whether there had been an implied waiver.253 There is still some doubt about exactly how the fairness and consistency tests fit together. It is suggested that notions of fairness have a crucial role to play in the context of litigation, where the effect that the privilege holder’s conduct has on the fairness of the proceedings is a paramount consideration. On the other hand, consistency of the privilege holder’s conduct with the confidentiality of the

Page 705

Page 49 of 57 Chapter 16 Legal Professional Privilege information makes sense for conduct that occurs outside of legal proceedings where there are no other parties and therefore there is nothing for the fairness test to latch on to.254 In Mann v Carnell, the Chief Minister of the Australian Capital Territory, Kate Carnell, disclosed legal advice on a confidential basis to a member of the Legislative Assembly regarding a legal matter concerning Dr Mann. Dr Mann sought pre-trial discovery of the advice in support of a potential defamation action, arguing that by disclosing it to a member of the legislature, the government had waived privilege in the advice. The High Court held that there was nothing inconsistent with the rationale for privilege in the Chief Minister conveying the terms of that advice, on a confidential basis. On the other hand, the High Court also acknowledged that disclosure on a ‘confidential basis’ does not necessarily exclude a finding of inconsistency between the privilege holder’s actions and maintenance of the privilege.255 Odgers has criticised the High Court’s judgment in Mann v Carnell for failing to provide any guidance as to when disclosure to third parties on a confidential basis will be inconsistent with maintenance of the privilege. The outcome in Mann v Carnell appears to rest on an assertion that there was no inconsistency in that case.256

252 Mann v Carnell (1999) 201 CLR 1 at 3

.

253 Attorney-General (NT) v Maurice [1986] 161 CLR 475; Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39

.

254 As Toohey J observed in Goldberg v Ng (1995) 185 CLR 83 at 111; [1995] HCA 39 , when partial disclosure is made outside the proceedings, ‘it hardly seems apt to speak in terms of fairness or unfairness. Ordinarily such a disclosure has no impact on the proceedings in respect of which the privilege is claimed. The party making the disclosure gains no advantage in the proceedings and the other party suffers no disadvantage thereby’. 255 Mann v Carnell (1999) 201 CLR 1 at [34]–[35]

.

256 S Odgers, Uniform Evidence Law, 10th ed, Thomson Reuters, Sydney, 2012, [1.3.11070].

16.100 Pursuant to s 122(2) of the Uniform Evidence Acts, the central consideration determining implied waiver is not fairness, but whether the client has ‘acted in a way that is inconsistent with the client or party objecting to the adducing of the disclosure to the lawyer’. Paramount to this inquiry is the conduct of the client, determined objectively, as opposed to its intention in respect to retaining the privilege. However, the notion of fairness remains relevant to the assessment of ‘consistency’, which requires judgment calls as to the nature of the client’s conduct and the underlying purpose of the privilege.

16.101 An important decision on waiver outside of litigation is Osland v Secretary to the Department of Justice.257 The Victorian Attorney-General obtained legal advice from three QCs on whether to grant a petition of mercy to a person convicted of murder. The petition was rejected and the Attorney-General issued a press release which stated ‘the joint advice recommends on every ground that the petition should be denied’. The High Court unaminously ruled that this did not amount to a waiver of privilege. It held that there was no inconsistency between disclosing the fact of, and the conclusions of, the independent advice and wishing to maintain the confidentiality in the advice itself.258 The court drew a distinction between the Attorney-General’s press release and conduct in litigation, implying that the court will be more tolerant

Page 706 of privilege holders claiming their legal advice supports their conduct in situations where they are not seeking to obtain a forensic advantage in litigation. It is doubtful that the same result would have been reached had the case been decided under the uniform evidence legislation. The combined effect of s 122(2)and 122(3) is that knowingly and voluntarily disclosing the substance of legal advice to another person amounts to acting inconsistently with the maintenance of the confidentiality. Given that the press release in Osland was by definition a knowing and voluntary

Page 50 of 57 Chapter 16 Legal Professional Privilege disclosure, and it disclosed the substance of legal advice by stating its conclusions, it arguably constituted a waiver of privilege under s 122.

257 Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37

.

258 Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37 at [48]

(n 105). See also

British American Tobacco Ltd v Secretary, Department of Health & Ageing (2011) 195 FCR 123 at [44]

.

16.102 An illustrative example of the application of s 122(2) and 122(3) is the case of Ampolex Ltd v Perpetual Trustee (Canberra) Co Ltd.259 Ampolex had issued a statement to its shareholders on the likely outcome of litigation in which it was involved. Ampolex stated that its views ‘have regard to the pleadings, the evidence available to Ampolex and the advice of the barristers and the solicitors engaged by Ampolex for the purpose of the litigation …’. The court held this did not amount to disclosure of the substance of legal advice; however, a report by an independent valuer attached to the statement did disclose the substance of legal advice. It had stated: ‘[t]here is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position.’

259 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 (n 40).

16.103 Filing and serving court documents, such as affidavits and witness statements, will constitute a waiver of privilege over those documents, even if they have not been read in court.260

260 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225

.

The availability of limited waivers

16.104 There is a school of thought, supported by a small but growing body of English case law,261 that a privilege holder is free to determine the extent of its waiver. If a privilege holder publishes a document to the world, it can be used by the world, but if it is disclosed to a select group of people on a confidential basis it is possible to restrict the waiver to those persons and for specific purposes only. In Australia, after some initial uncertainty about the existence262 and scope263 of the concept of limited purpose waiver at common law, the principle is now recognised but subject to the general rule governing waiver: disclosures to a third party for limited purposes will not destroy the privilege, provided that such disclosure is not inconsistent with the maintenance of confidentiality in the document.264 While a party may attempt to restrict waiver to certain purposes by placing conditions on disclosure, its specification of the extent of a waiver is not determinative of the use to which the material can be

Page 707

Page 51 of 57 Chapter 16 Legal Professional Privilege put. The test of inconsistency is an objective one and, as such, an individual’s capacity to specify the extent of their waiver is limited by reference to a judicial assessment of the compatibility of the circumstances and terms of disclosure with the maintenance of confidentiality in the document.265

261 Gotha City v Sotheby’s [1998] 1 WLR 114

(CA); Berezovsky v Hine [2011] EWCA Civ 1089.

262 See Giannarelli v Wraith (No 2) (1991) 171 CLR 592

.

263 See especially Goldberg v Ng (1994) 33 NSWLR 639 264 Mann v Carnell (1999) 201 CLR 1 at 13 Butterworths, Sydney, 2013, p 779 [25010].

; Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39

.

; J D Heydon, Cross on Evidence, 9th Australian ed, LexisNexis

265 Goldberg v Ng (1995) 185 CLR 83 at 111; [1995] HCA 39

; Mann v Carnell (1999) 201 CLR 1 at 13

Group Pty Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201 at [26]

; Spotless

.

16.105 In applying the objective test of inconsistency, courts have looked beyond formal restrictions on the use of documents to substantive considerations such as practical control. As a consequence, it has been held that disclosure of privileged documents will be inconsistent with the maintenance of confidentiality in circumstances where the person asserting privilege cannot control further dissemination of the document.266 Moreover, the test of inconsistency can be informed by considerations of fairness between parties,267 so that documents that might otherwise have been kept confidential in a practical sense (that is, they did not become public) may nevertheless be discoverable if maintaining the privilege would bring about an injustice between the parties.This explains the High Court’s decision in Goldberg v Ng,268 which involved similar facts to the Privy Council case of B v Auckland District Law Society.269 Mr Goldberg was being sued for professional negligence by Mr Ng and also investigated by the Law Society following a complaint by Ng. The society’s officer requested to see a witness statement that Mr Goldberg had prepared in connection with the professional negligence proceedings. Mr Goldberg disclosed the statement on an undertaking by the society’s officer that Mr Goldberg’s privilege in the statement would be protected. Following a subpoena to the Law Society for production of all documents regarding the investigation into Mr Goldberg, the High Court ruled, by a 3:2 majority, that privilege had been waived in the statement. Key to the majority’s decision was that the professional negligence proceedings and the professional conduct investigation were related, and that disclosure to the society was calculated to demonstrate the reliability of his denial of the complaint. The upshot is that a privilege holder cannot selectively disclose privileged material to a regulator and assert the privilege in related proceedings if it would cause unfairness to the other party. While regulators may enter into confidentiality agreements with companies who disclose privileged material to them, such agreements do not exempt regulators from having to compulsorily disclose privileged material if the court ultimately finds that disclosure to the regulator constituted a waiver.270

266 See, for example, Cadbury Schweppes v Amcor Ltd (2008) 146 ALR 137 at 143 [17]–[18] per Gordon J. 267 Mann v Carnell (1999) 201 CLR 1 at 13

.

268 Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39 269 B v Auckland District Law Society [2003] UKPC 38

. .

270 A Eastwood, ‘Providing Your Legal Advice to the Regulator’ (2013) Australian Business Law Review 66 at 81, citing the Australian Securities and Investments Commission Information Sheet 165.

Page 52 of 57 Chapter 16 Legal Professional Privilege

16.106 Limited waivers are treated differently under the uniform evidence legislation. Section 122(5) identifies the circumstances in which privileged material can be disclosed to others without waiving privilege. It states: (5)

A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

Page 708  

(a) the substance of the evidence has been disclosed: (i)

in the course of making a confidential communication or preparing a confidential document; or

(ii)

as a result of duress or deception; or

(iii) under compulsion of law; or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law — to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

16.107 Regrettably, s 122(5)(a)(i) is question begging. On one interpretation, providing a confidential document to a third party does not amount to a waiver. Yet if that were the case, many of the other exceptions, including the common interest privilege exception in s 122(5)(c), would be redundant. Gans and Palmer have suggested that s 122(5)(a)(i) means that waiver does not automatically arise ‘merely because’ the substance of the advice was disclosed in the course of making a confidential communication, but it is still open to a court to find that a disclosure to a third party on a confidential basis was nevertheless inconsistent with maintaining a claim for privilege.271 This is probably correct, but the upshot is that the section provides little guidance on which side of the waiver/no waiver line a disclosure to a third party will fall on. The burden of proving privilege under s 122(5) is on the person claiming the privilege, because the matters referred to are likely for the most part to be known solely by the privilege holder.272

271 J Gans and A Palmer, Uniform Evidence, Oxford University Press, Melbourne, 2010, p 308. 272 Hodgson v Amcor Ltd (No 4) (2011) 32 VR 568; [2011] VSC 269 at [17]–[22]

Waiver in the course of litigation Waivers by putting privileged material in issue

.

Page 53 of 57 Chapter 16 Legal Professional Privilege

16.108 Few could deny the unfairness if a litigant were free to choose which privileged material it wishes to rely on, whilst concealing other privileged material relevant to the very same issue.273 For this reason the law maintains a rule against selective waiver or cherry picking. A party who wishes to waive privilege in respect of part only of a document, or in respect of only some documents relating to a certain transaction, must satisfy the court that the materials released from privilege do not distort the

Page 709 facts.274 The general assumption is that a party who reveals part only of a privileged document is taken to have waived privilege in respect of the whole, unless it is clear that the rest of the document is irrelevant and that its suppression would in no way distort the truth or deprive the opponent of a fair opportunity to probe and challenge the veracity of the disclosed part.275

273 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1958] 1 All ER 976 at 986. 274 Burnell v British Transport Commission [1956] 1 QB 187

; [1955] 3 All ER 822

Home Insurance Co [1981] 2 All ER 485; [1981] 1 WLR 529

; Great Atlantic Insurance Co v

.

275 Derby & Co Ltd v Weldon (No 10) [1991] 2 All ER 908; [1991] 1 WLR 660 Ex parte Factortame Ltd (Discovery) (1997) 9 Admin LR 591, QB.

; R v Secretary of State for Transport;

16.109 The test for waiver under the uniform evidence legislation is dependent on whether the ‘substance of the evidence’ was disclosed. In Adelaide Steamship Co Ltd v Spalvins, the court stated that the test is ‘a quantitative one which asks whether there has been sufficient disclosure to warrant loss of the privilege’.276 Under the uniform evidence legislation, the scope of any collateral waiver is limited to other communications or documents that are reasonably necessary to enable a proper understanding of the communication or document over which privilege was waived.277

276 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 371; [1998] FCA 144

.

277 Evidence Act 1995 (Cth) s 126; Evidence Act 2011 (ACT) s 126; Evidence Act 1995 (NSW) s 126; Evidence Act 2001 (Tas) s 126; Evidence Act 2008 (Vic) s 126.

A general ‘material fact’ or ‘putting in issue’ waiver

16.110 Even where the privilege holder does nothing with its legal advice, the nature of the claims it asserts may lead to a waiver of privilege, if in the interests of fairness, the claim can only be tested by its opponent if the legal material is made available.

16.111

Page 54 of 57 Chapter 16 Legal Professional Privilege Australian courts have adopted a general rule of fairness about the consequences of making the contents of privileged communications a material fact in issue. The rule was summarised by Derrington J of the Supreme Court of Queensland as follows: Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, the privilege is lost.278

In Australia, the test is not separate from, but rather a manifestation of, the general rule of waiver, that is, whether there is inconsistency, informed by notions of fairness, between the conduct of the client and the maintenance of the confidentiality.This was reiterated by Byrne J in the case of Liquorland (Australia) Pty Ltd v Anghie: It is only where … there will arise an unfair inconsistency between the position of the client setting up this state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness.279

Page 710

278 Wardrope v Dunne [1996] 1 Qd R 224 at 226 341; [2006] FCAFC 86

. See also Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR

.

279 Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 at 39; [2003] VSC 73 at [32] ; DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384. See also J Auburn, ‘Generalised Rules of Fairness in Evidence Law’ (2000) Modern Law Review 104 at 105.

16.112 The mere fact that a person pleads reliance on representations or conduct, and thereby puts their state of mind in issue, will not automatically lead to a waiver of privilege even if it is likely that the legal advice influenced the person’s state of mind. Whether disclosure of privileged material is required to avoid unfairness to the other party will depend on the facts of the case,280 but an express or implied assertion as to the content of privileged communications is likely to trigger a waiver.281

280 Federal Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [60]

.

281 Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236 at [48] . For a helpful discussion of the issue, see A Eastwood, ‘Do You Waive Privilege by Pleading Reliance?’ (2012) 86 Australian Law Journal 545.

16.113 There are conceptual difficulties with trying to fit this form of waiver under the general test of inconsistency as set out in Mann v Carnell. What sets the putting in issue rule apart from other forms of waiver is that it can apply even where the privilege holder has been scrupulous in protecting the confidentiality of its privileged material. For example, in the case of BHP v Esso ,282 the Victorian Court of Appeal held that asserting a claim to legal costs constituted an issue waiver over the contents of privileged communications. In a dispute between joint operators of a gas plant that exploded causing death and injury to workers and severe economic disruption to businesses and

Page 55 of 57 Chapter 16 Legal Professional Privilege consumers, the Victorian Court of Appeal held that a claim by one operator to recover costs from the other under the joint agreement meant that in fairness the opponent was entitled to see the contents of the privileged material relating to the claimed costs. While the ultimate result may have been justified, the court’s reasoning is problematic. In particular, the court disregarded the jurisprudence on taxation which allows a party claiming costs to seek to prove its claim by resort to non-privileged material, and only if that is not possible, is the party then put to the election of waiving privilege or forgoing the claim. It may be possible sometimes to establish that costs were reasonable in amount and proportionate without resort to the contents of privileged communications.283 As for the challenge of applying the test generally, if the court is required to assess the consistency between the privilege holder’s conduct and the maintenance of the privilege, in cases of material fact waivers the court cannot do this by reference to what the privilege holder has done with their privileged material as the privilege holder has typically done nothing with their privileged material. Instead, the courts must resort to general notions of fairness to decide whether a privilege holder has put a fact in issue which, in turn, requires disclosure of related privilege material. This tension in the Australian case law was highlighted by the Singaporean Court of Appeal in the 2016 case of ARX v Comptroller of Income Tax, when it deferred consideration of whether Singapore should recognise this form of waiver.284

Page 711

282 [2007] VSC 281

.

283 See also G Harris, ‘BHP Billiton Petroleum (Bass Strait) Pty Ltd v Esso Australia Resources Pty Ltd: Making a Claim to Recover Legal Costs Should Not Constitute an at Issue Waiver of Legal Professional Privilege’ (2009) 28 Civil Justice Quarterly 67. 284 ARX v Comptroller of Income Tax [2016] SGCA 56 at [109].

Loss of privilege — inadvertent disclosure

16.114 The situation where privileged communications have come into the possession of others, who wish to use them in litigation, has given rise to a conflict of principles. On the one hand, if privilege is merely a rule of immunity from compulsory disclosure, there should be no objection to admitting privileged communications that have escaped the private sphere, provided that they are relevant; especially as the exclusion of information that has become known outside the client–lawyer relationship is likely to undermine public confidence in the correctness of court adjudication. On the other hand, however, it seems unfair to allow information that the client imparted to its lawyer, on the assumption that it was doing so in a private and secure sphere, to be used against the client, when the client did nothing that could be sensibly described as a waiver of privilege.

16.115 Given the apparently intractable conflict between admissibility and confidentiality, it is not surprising that the position of English and Australian law on this point has been rather ambivalent.285 At common law, the general principle has been that privileged documents are admissible and, therefore, a party who comes into possession of privileged documents may adduce them in evidence. In Calcraft v Guest,286 a party was accordingly allowed to adduce in evidence a handwritten copy of a privileged communication which came into his possession. However, the position in equity is quite different. It was held in Ashburton v Pape287 that a person entitled to privilege may apply for an injunction directing any person in possession of a privileged document to return it and all copies of it, and to refrain from disseminating or using it in any way. The combined effect of the Calcraft and Ashburton cases was explained in Goddard v Nationwide Building Society288 as follows: a litigant who is in possession of another person’s privileged documents may use them in litigation, but the owner of the privilege may pre-empt such use by obtaining an order for the return of the documents and for restraining their use. As a result of this compromise, the use in

Page 56 of 57 Chapter 16 Legal Professional Privilege evidence of accidentally disclosed privileged materials depended on whether the owner of the privilege was sufficiently alert and in possession of the necessary means to seek an injunction before the party in possession had a chance to adduce the privileged documents in evidence. Moreover, whether a court grants an equitable injunction restraining use of privileged material in the hands of third parties is ultimately discretionary and the court is free to take into account public interest considerations in decided whether or not to grant the injunction.289

285 For an analysis of the problems, see Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 at 562,595

.

286 Calcraft v Guest [1898] 1 QB 759 . See also Lloyd v Mostyn (1842) 10 M & W 478, where Parke B said that a copy of an original would be admissible even where the copy was facilitated by the theft of the original. 287 Ashburton v Pape [1913] 2 Ch 469

.

288 Goddard v Nationwide Building Society [1987] QB 670

at 685

; [1986] 3 All ER 264 at 271

289 See, for example, ISTIL Group Inc v Zahoor [2003] 2 All ER 252 at [74],[89]–[94]

.

.

16.116 The law on the use of privileged material that has been disclosed by mistake or without authorisation is unnecessarily complex, doctrinally questionable and in

Page 712 the process of reform. The supposed basis for this jurisdiction to grant an injunction restraining the use of privileged communications is that while privilege has been lost through disclosure the material is still confidential; hence the court can intervene in its equitable jurisdiction just as it would to restrain breaches of confidence. However, the fact that privileged communications are confidential does not fully account for the court’s power to restrain the use of privileged communications in legal proceedings because confidentiality does not confer,and has never conferred, immunity from disclosure in legal proceedings.290 What supports the court’s power to restrain the use of privileged communications in legal proceedings is the principle at the foundation of legal professional privilege: that clients must be able to communicate with their lawyers safe in the knowledge that, unless they waive the privilege, what they say to their lawyers will not be used against them.

290 Paragon Finance plc (formerly National Home Loans Corp plc) v Freshfields (a firm) [1999] 1 WLR 1183

at 1188

, CA per Lord Bingham CJ.

16.117 The fact that legal professional privilege is also a rule of (in)admissibility receives implicit recognition in the uniform evidence legislation which applies to ‘the adducing of evidence’.291 More importantly, the High Court’s decision in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd292 expressly recognises that privilege rights are not lost merely because privileged material is inadvertently disclosed in litigation. The court provided some sorely needed guidance on these issues in the context of inadvertent disclosure in litigation. The court held that unintentional disclosure of privileged material does not constitute a waiver of privilege, and where privileged material is disclosed by mistake during the discovery process, a court should use its case management powers to rectify the mistake; it is not necessary to resort to its equitable jurisdiction. Whether the decision in Expense Reduction will also influence the approach of lower courts to unintentional disclosure outside of litigation remains to be seen.293 It is suggested that it should be extended because the very considerations that

Page 57 of 57 Chapter 16 Legal Professional Privilege support the rule that the client and its lawyer must not be compelled to reveal their communications, also support a principle that what the client tells its lawyer in private should not be used in evidence against the client in any legal context, subject to the usual rules of waiver.

291 See 16.4 and 16.5 above. 292 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 . 293 There is some authority predating Expense Reduction which suggests that privilege is not lost under the uniform evidence legislation merely because documents fall into the hands of third parties: Hodgson v Amcor Ltd (No 4) (2011) 32 VR 568; [2011] VSC 269 at [77]–[79] [148]

End of Document

.

. See also Dunstan v Orr (2008) 217 FCR 559; [2008] FCA 31 at [145]–

Chapter 18 The Privilege against Self-Incrimination Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 18 — The Privilege against SelfIncrimination

Chapter 18 The Privilege against Self-Incrimination Page 745 [Current to May 2018]

General implications of the privilege in civil proceedings

18.1 The privilege against self-incrimination has important implications in civil cases. It provides immunity from being compelled to provide evidence or information of a self-incriminating potential.1 A person is not bound to answer any question or produce any document if to do so would tend to expose that person to proceedings for a criminal offence or exposure to a civil penalty.2 The privilege against self-incrimination is treated separately from the privilege against exposure to civil penalties by Australian courts. The privilege can be claimed against exposure to penalties for civil contempt.3 The fact that the High Court has distinguished between the privilege against incrimination on the one hand, and privilege against self-exposure to penalties on the other, has far-reaching implications for the conduct of civil proceedings.Although proceedings for a civil penalty fell into obsolescence in England in the nineteenth century, they are still common in Australia. Where proceedings are brought for the recovery of a civil penalty, the privilege has been interpreted to require radical changes to the conduct of the proceedings. In essence the proceedings are conducted in a manner closer to criminal proceedings than ordinary civil proceedings. Discovery is not ordered against a defendant and a defendant is not required to file any evidence or witness statements before trial. If a defendant elects to put forward a positive case, this can be done after the close of the plaintiff’s case. The right not to put forward a positive defence until the close of the plaintiff’s case is difficult to reconcile with principle. There is no compulsion involved in putting forward a defence and filing evidence in support, and

Page 746 raison d’etre of the privilege is to avoid compelled self-incrimination.4 As the privilege has been abrogated for corporations, these changes to the conduct of proceedings only apply where the defendant is a natural person; however, where the defendant is a corporation, the privilege can still be claimed by witnesses.5 Where proceedings are ordinary civil proceedings but an answer or the production of a document might expose a person to a civil penalty, the rules on claiming privilege operate in the usual way as set out below.6 There is doubt about whether the privilege against exposure to a penalty applies outside judicial proceedings.7

1

See, for example, Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA) and for discussion,see S McNicol, Law of Privilege, Law Book Co, Sydney, 1992, Ch 3.

2

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 . All of the justices in this case treated these privileges as distinct: (1983) 152 CLR 328 at 336 per Mason ACJ, Wilson and Dawson JJ, at 345 per Murphy J, at 350 per Brennan J.

Page 2 of 18 Chapter 18 The Privilege against Self-Incrimination 3

Exagym Pty Ltd v Professional Gymnasium Equipment Co Pty Ltd [1994] 2 Qd R 6 at 12,14 Professional Gymnasium Equipment Co Pty Ltd (No 2) [1994] 2 Qd R 129 at 130–2

4

; Exagym Pty Ltd v

.

Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32; [2007] FCA 1620 at [13]

; MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612; [2007] NSWCA

304 ; Australian Property Custodian Holdings Ltd (in liq) (No 2) (2012) 93 ACSR 130; [2012] VSC 576 ; Australian Competition and Consumer Commission v J McPhee& Son (Aust) Pty Ltd (No 2) (1997) 77 FCR 217; 148 ALR 601 ; cf Sidebottom v Commissioner of Taxation (2003) 6 VR 302 directors to file any witness statements before trial). 5

(Court of Appeal upholding order of

Australian Competition and Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 2) (1997) 77 FCR 217 at 220; 148 ALR 601 at 604

.

6

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336; 45 ALR 609 at 613–14

7

Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49 at [31]

; Rich v ASIC (2004) 220 CLR 129; 209 ALR 271; [2004] HCA 42 at [24]

.

; Valantine

v Technical and Further Education Commission (2007) 97 ALD 447; 166 IR 459; [2007] NSWCA 208 at [53]–[75] ; Graymarshall Pty Ltd v Director General of the Department of Environment,Climate Change and Water (2010) 78 NSWLR 605; 173 LGERA 258; [2010] NSWLEC 54 at [47]–[54]

.

18.2 In Australia, three jurisdictions preserve the common law privilege by statute,8 while under the uniform evidence legislation the procedure for claiming privilege in curial proceedings is codified, along with a power of the court to override the privilege on condition of granting an immunity certificate protecting the person disclosing the incriminating evidence from its use against him or her.9

8

Evidence Act 1939 (NT) s 10; Evidence Act 1977 (Qld) s 10; Evidence Act 1906 (WA) ss 11 and 24.

9

See 18.16 below.

18.3 The privilege is not limited to trial or even judicial proceedings, as it is a substantive right and not merely a rule of evidence. Accordingly, it may be invoked in pre-trial processes including discovery or interrogatories,10 responding to an Anton Piller order,11 or a Mareva injunction,12 or a subpoena13 or notice to produce documents by a regulator14 or disciplinary proceedings.15 There is also authority that the privilege

Page 747 is also available in tribunal proceedings on the grounds that the rationale for the privilege applies just as much to tribunal proceedings as it does to curial proceedings.16

10 Smith v Read (1737) 1 Atk 526; 26 ER 332 ; Evans v Staunton [1958] Qd R 96 (FC). Note while the privilege may be pleaded in response to specific interrogatories it is not possible to object to the administration of the interrogatories on the grounds of the privilege.

Page 3 of 18 Chapter 18 The Privilege against Self-Incrimination 11 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 Black (1987) 11 NSWLR 609

12 Istel (AT & T) Ltd v Tully [1993] AC 45 ; [1998] 3 All ER 74 (CA)

; [1981] 2 All ER 76

; BPA Industries Ltd v

. ; [1992] 3 All ER 523

; Den Norske Bank ASA v Antonatos [1999] QB 271

; Vasil v National Australia Bank (1999) 46 NSWLR 207; [1999] NSWCA 161

.

13 A court may devise a procedure that protects the witness where access to documents is sought: see, for example, Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 490 1; 131 ALR 609

; Reid v Howard (1995) 184 CLR

.

14 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609 (1983) 152 CLR 281 at 311–12; 46 ALR 237 at 260

.

15 Police Service Board v Morris (1985) 156 CLR 397

.

; Sorby v Commonwealth

16 Valantine v Technical and Further Education Commission (2007) 166 IR 459; [2007] NSWCA 208 Migration Agents Registration Authority [2017] FCA 537

; Frugtniet v

.

18.4 The application of the privilege to documents is complicated and unnecessarily complex. There are two different categories of documents, and different contexts in which they can be produced, that need to be considered. First, no one can be ordered to create a document which has a tendency to incriminate them. Just as no one can be damned out of their own mouths, no one can be ordered to create a written confession. The position relating to preexisting documents, that is, documents that exist independently of the disclosure request, is more difficult. The current position is that if pre-existing documents are obtained independently of the document holder’s will, for example a search warrant,then the privilege does not apply. However, if the document holder is involved in the production of the document, for example a notice to produce or order for discovery, the privilege will apply. This is an unsatisfactory distinction for it makes the application of the privilege turn on how the document is produced. The problem is partly ameliorated in practice, because under the uniform evidence legislation the court has the power to override the privilege, subject to conditions. Nonetheless, there is a strong argument that the privilege should not apply to pre-existing documents at all, and there is now English jurisprudence to support this position, which is discussed below.17

17 See 18.35.

18.5 The privilege applies to natural persons, but not corporations,18 and in curial proceedings may be claimed by both litigants and witnesses. The privilege is personal so that a person cannot claim the privilege on the ground that another person may be incriminated,19 or assert a claim to prevent another person revealing incriminating information.20 Furthermore, there is some support in the case law for the view that adverse inferences may be drawn from a person’s refusal to answer questions or disclose documents on grounds of self-incrimination.21

18 See 18.8 below.

Page 4 of 18 Chapter 18 The Privilege against Self-Incrimination 19 Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547

at 637–8

; [1978] 1 All ER 434 at 465

Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145,150; 43 ALR 659 at 666,670–1

; Environment

Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 549; 188 ALR 392 at 444 Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96 at 116; 123 ALR 503 at 520–1 Tuohy (1995) 56 FCR 92 at 99; 128 ALR 595 at 601 372; 187 ALR 362; [2002] FCA 3 at [32]

;

; Trade

(FC); Bond v

; Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR

.

20 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 549; 188 ALR 392 at 444 Garvin v Domus Publishing Ltd [1989] Ch 335

at 348

; [1989] 2 All ER 344 at 352

CX Computer Pty Ltd (2002) 116 FCR 372; 187 ALR 362; [2002] FCA 3 at [32]

;

; Microsoft Corporation v

.

21 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201; [2009] FCA 1586 at [101]

. English law appears to support this proposition: Rank Film Distributors Ltd v Video Information

Centre [1980] 2 All ER 273 at 291; [1980] 3 WLR 487 at 519 (on appeal to the House of Lords no disapproval was expressed of these views: [1982] AC 380; [1981] 2 All ER 76); Den Norske Bank ASA v Antonatos [1999] QB 271

at 296

; [1998] 3 All ER 74 at 95

UEE v Lundqvist [1991] 2 QB 310

. But see Sociedade Nacional de Combustiveis de Angola

; [1990] 3 All ER 283 (CA)

.

18.6 The procedure for claiming (and overruling) the privilege under the uniform evidence legislation expressly extends the privilege to evidence tending to prove a

Page 748 criminal offence under foreign law.22 The issue is most likely to arise in the course of the letters rogatory process, where an Australian court receives a request to obtain evidence for use in foreign proceedings. Under s 38 of the Queensland Evidence Act 1977, a witness giving evidence in Queensland for use abroad is entitled to claim any privilege which may be available to him or her under Queensland law or under the law of the place where the evidence will be used.23 At common law, there is limited English authority to the effect that the privilege does not extend to incrimination under foreign law.24 Whether or not an Australian court would take the same approach, there is no doubt that the court has discretion to refuse to permit evidence to be given because of concerns that the evidence would have incriminating potential under foreign law.25

22 Evidence Act 1995 (Cth) s 128(1); Evidence Act 2011 (ACT) s 128(1); Evidence Act 1995 (NSW) s 128(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 128(1); Evidence Act 2001 (Tas) s 128(1); Evidence Act 2008 (Vic) s 128(1). 23 Similar provisions exist in England under the Evidence (Proceedings in Other Jurisdictions) Act 1975 s 3. 24 King of The Two Sicilies v Willcox (1851) 1 Sim NS 301; 61 ER 116 WLR 998

at 1003

(CA) (the court said this was ‘probably’ the common law).

25 Re S [1948] VLR 11; [1948] 1 ALR 81 May [1999] 1 WLR 998

Rationale

; Attorney-General for Gibraltar v May [1999] 1

.

; Brannigan v Davison [1977] AC 238

; Attorney-General for Gibraltar v

Page 5 of 18 Chapter 18 The Privilege against Self-Incrimination

18.7 While the precise origins of the privilege are surprisingly obscure,26 the popular revulsion towards the practices of the Star Chamber, and the general belief that it is cruel to force a person to damn themselves out of their own mouths, supply the modern day basis for the privilege.27 Importantly, the privilege is rarely invoked as the basis for making the legal process ‘fair’ but rather as a means of protecting a person’s dignity and especially avoiding the cruel trilemma of punishment for refusal to testify, punishment for truthful testimony or punishment for perjury.28 The trilemma justification for the privilege has been criticised on several grounds, including that while it might be inappropriate for the state to force defendants to cooperate in criminal prosecutions, it is not cruel.29 Redmayne has put forward a more nuanced account of the privilege based on the notion that it preserves personal integrity and allows a person to distance themselves from the state when the state is at its most powerful.30

26 Azzopardi v R (2001) 205 CLR 50; 179 ALR 349; [2001] HCA 25 at [119]–[163]

.

27 J D Heydon, Cross on Evidence, LexisNexis (Electronic Version), [25140]. 28 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 (HCA) at [33]. 29 M Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’ (2007) 27 Oxford Journal of Legal Studies 209 at 221–4. 30 M Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’ (2007) 27 Oxford Journal of Legal Studies 209 at 221–4. See also P Roberts and A Zuckerman, Criminal Evidence, 2nd ed, Oxford University Press, 2010, p 547.

Application to corporations

18.8 In Australia, the privilege is available only to natural persons, the High Court having opted to follow US31 rather than English jurisprudence,32 denying the privilege

Page 749 to corporations. The cruel trilemma rationale simply has no application to an artificial legal entity which cannot speak for itself or testify to its own guilt. Moreover, alternative rationales for the privilege about protecting the individual from the state have been rejected in corporate contexts. In the Australian High Court case of Environment Protection Authority v Caltex Refining Co Pty Ltd,33 Mason CJ and Toohey J stated that the privilege was not required to maintain a ‘balance’ between state and corporation, unlike in the case of individuals. Moreover, there were strong public policy reasons for allowing the state to access the books of entities that exist in law only. They stated: … we reject without hesitation the suggestion that the availability of the privilege to corporations achieves or would achieve a correct balance between state and corporation. In general, a corporation is usually in a stronger position vis a vis the state than is an individual; the resources which companies possess and the advantages which they intend to enjoy, many stemming from incorporation, are much greater than those possessed and enjoyed by natural persons. The doctrine of the corporation as a separate legal entity and the complexity of many corporate structures and arrangements have made corporate crime and complex fraud one of the most difficult areas for the state to regulate effectively.34

Subsequently, the position in EPA v Caltex was extended so that corporations cannot plead the privilege against exposure to a civil penalty.35

Page 6 of 18 Chapter 18 The Privilege against Self-Incrimination 31 Hale v Henke 201 US 43 (1906); US v White 322 US 694 (1944). See generally J H Wigmore, Evidence (McNaughton rev edn), Little, Brown, Boston, 1961, Vol 8, [2259a]. 32 Triplex Safety Glass Co Ltd v Lance Gaye Safety Glass (1934) Ltd [1939] 2 KB 395

(CA).

33 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

.

34 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 (HCA) at 500; Evidence Act 1995 (Cth) s 187; Evidence Act 2011 (ACT) s 187; Evidence Act 1995 (NSW) s 187; Evidence (National Uniform Legislation) Act 2011 (NT) s 187; Evidence Act 2001 (Tas) s 187; Evidence Act 2008 (Vic) s 187. 35 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 123 ALR 503

.

Basis of the claim

18.9 The person claiming privilege must assert it and identify its precise basis when questions are put or documents are demanded, otherwise answers and documents produced will be admissible.36 A person claiming the protection of the privilege must satisfy the court that there is a real risk of prosecution or imposition of a civil penalty. The court is primarily concerned with the risk to the claimant, not the claimant’s perception of that risk.37

36 IBM United Kingdom Ltd v Prima Data International Ltd [1994] 4 All ER 748; [1994] 1 WLR 719 37 Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 422,433

.

(CA).

18.10 The objective nature of the test means that a bona fide but unfounded apprehension of prosecution or exposure to civil penalty will not suffice.38 The risk of prosecution or exposure to penalty could also be effectively removed by the state so that if, for example, the Attorney-General undertook not to use evidence the claimant might give, the privilege would not apply, even if prosecutorial authorities in other jurisdictions could theoretically use the evidence because that possibility was not a real one.39 Although the risk of incrimination is assessed objectively, a degree of latitude is given to the claimant because in the relevant case they are in a better position than

Page 750 the court to know where the questioning might lead,40 and because disclosure of the matters to substantiate the claim would lead to the very outcome the privilege is designed to avoid.

38 Sorby v Commonwealth (1983) 152 CLR 281 at 289 39 R v Hicks (2010) 210 A Crim R 158

.

.

40 Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA).

18.11

Page 7 of 18 Chapter 18 The Privilege against Self-Incrimination The reference to answers or documents ‘tending’ to incriminate is meant to catch answers that would directly incriminate by providing evidence that could be used in a prosecution or proceeding for civil penalty, as well as indirectly incriminate by leading to such evidence. In the famous case of R v Slaney, Lord Tenterden CJ stated: You cannot only not compel a witness to answer that which will criminate him, but that which tends to criminate him: and the reason is this, that the party would go from one question to another, and though no question might be asked, the answer of which would directly criminate the witness, yet they would get enough from him whereon to found a charge against him.41

The point was reiterated by the Court of Appeal for England and Wales in the decision of Den Norske Bank ASA v Antonatos,42 when it stated the privilege also extended to information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not.

41 R v Slaney (1832) 5 Car & P 213 at 214; 172 ER 944 at 945. See also Short v Mercier (1851) 3 Mac & G 205 at 217; 42 ER 239 at 244. 42 Den Norske Bank ASA v Antonatos [1999] QB 271

at 289

(CA).

Privilege limited to answering questions or producing documents that may incriminate

18.12 The privilege cannot be asserted as a defence to a civil claim, it cannot be relied upon to justify failure to defend an application for summary judgment, or be used to prevent an opponent from taking proceedings to enforce his or her rights.43 The immunity does not confer a right not to be sworn as a witness or not to be asked questions at all.44 The privilege must be claimed in response to specific questions. It does not offer immunity from allowing inspection or recovery of property, or from the provision of bodily samples such as breath or hair.45 The evidence obtained through these processes does not involve any testimonial obligation and relates to evidence that exists independently of the will of the person, and which is obtained without their cooperation. Requiring production of evidence in these cases does not require a person to damn themselves out of their own mouths or cooperate in their own prosecution.

Page 751 For the same reason, the privilege cannot be claimed to resist the execution of a search warrant including seizing documents. In the words of J D Heydon, the privilege is not one against incrimination; it is a privilege against selfincrimination.46

43 Versailles Trade Finance Ltd (in administrative receivership) v Clough (2001) Times, 1 November. 44 Ex parte Reynolds (1882) 20 Ch D 294

; Brebner v Perry [1961] SASR 177 at 180

Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423

; Accident Insurance

(CA); Registrar, Supreme Court of South Australia

v Zappia (2003) 86 SASR 388; [2003] SASC 276 at [12] . The position is the same under Art 6 of the European Convention on Human Rights: Serves v France (1998) 28 EHRR 265. 45 King v McLellan [1974] VR 773 (FC); Sorby v Commonwealth (1983) 152 CLR 281 at 292–3; 46 ALR 237 at 244 ;R v Apicella (1985) 82 Cr App R 295; R v Deenik [1992] Crim LR 578 (CA) (voice recognition); Charara v Commissioner of Police (2008) 182 A Crim R 64; [2008] NSWCA 22 at [74]

.

Page 8 of 18 Chapter 18 The Privilege against Self-Incrimination 46 J D Heydon, Cross on Evidence, LexisNexis (Electronic Version), [25090].

18.13 On the other hand, both in the context of litigation or even in the part of investigations involving compulsory disclosure, the privilege against self-incrimination can be raised as an excuse for the production of documents if production is accompanied by a testimonial obligation. Traditionally, the duty to produce documents has been viewed as a testimonial obligation,47 because the way of securing production of documents from non-parties was usually by means of subpoena duces tecum and because such person would be sworn in before producing the document. Even today, a non-party who is summoned to produce documents in legal proceedings is treated as a witness. Since production and disclosure of documents are considered to be testimonial obligations, and since the privilege against self-incrimination is an immunity from testifying against oneself, it follows that the privilege extends to production and disclosure of documents. Accordingly, if compliance with an order to produce documents could reveal documents that tend to incriminate the person to whom the order is directed,that person can excuse themselves on grounds of self-incrimination.48

47 A Ligertwood, Australian Evidence, 3rd ed, Butterworths, Sydney, 1998, p 323. 48 Tate Access Floors Inc v Boswell [1991] Ch 512

; [1990] 3 All ER 303

.

18.14 The law as stated in the preceding two paragraphs gives rise to an obvious anomaly: provided authorities can obtain documents without the cooperation of those who hold them, those authorities are not preventing from obtaining incriminating material. But if the document holder is required to participate in that process, by declaring that they have the documents or to physically produce them, then the privilege does apply. The point is illustrated by the old English case of Rank Film Distributors Ltd v Video Information Centre.49 The claimants sought a search order authorising them to remove illicit copies of films from the defendants’ premises, directing the defendants to supply information concerning the infringements of the claimants’ rights, and ordering the defendants to disclose and produce documents. The House of Lords held that the privilege provided no impediment to the recovery of illicit films. But it also held that the defendants were entitled to immunity from both providing incriminating information and from handing over documents concerning their illicit trade.50

49 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380

; [1981] 2 All ER 76

50 See also Rio Tinto Zinc Corp v Westinghouse Electrical Corp [1978] AC 547

.

; [1978] 1 All ER 434

.

18.15 Since this decision had the effect of seriously hampering the fight against infringements of intellectual property, parliament intervened by passing s 72 of the Supreme Court Act 1981, which withdrew the privilege from proceedings for the infringement of intellectual property rights.51 However, the fact remains that the privilege against self-incrimination applies to documents and that it therefore tends to impede access to documents where the infringement of rights is of the

Page 9 of 18 Chapter 18 The Privilege against Self-Incrimination

Page 752 most serious kind. Because the application of the privilege to civil litigation makes it difficult for victims of fraud and other crimes to obtain vindication, it is not surprising to find that the courts have expressed reservations about its operation in civil proceedings.52 Lord Templeman described the privilege in civil proceedings as ‘an archaic and unjustifiable survival from the past’.53 In Phillips v News Group Newspapers Ltd, a case considering the interpretation of a statutory exception to the privilege, Lord Neuberger MR stated: I would take this opportunity to express my support for the view that PSI [the privilege against self-incrimination] has had its day in civil proceedings, provided that its removal is made subject to a provision along the lines of section 72(3).54

As we will shortly see, Australian law has achieved a similar outcome by conferring on the court the power to override the privilege subject to conditions. Similarly, it is likely that legislatures will continue to adopt legislative measures that abrogate or restrict the scope of the privilege.55

51 Subsequently amended by the Copyright, Designs and Patents Act 1988, Sch 7, para 28. 52 Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310 AT & T Istel Ltd v Tully [1993] AC 45

; [1992] 3 All ER 523 at 53and 530

; [1990] 3 All ER 283 (CA)

;

respectively per Lord Templeman, and

534 per Lord Griffiths; Den Norske Bank ASA v Antonatos [1999] QB 271 at 284 ; [1998] 3 All ER 74 at 84 per Waller LJ. See also Consultation Paper, ‘The Privilege Against Self-incrimination in Civil Proceedings’,Lord Chancellor’s Department, 1992. 53 AT & T Istel Ltd v Tully [1993] AC 45

at 53

.

54 Phillips v News Group Newspapers Ltd [2012] EWCA Civ 48 at [18]

. The comments were cited sympathetically by

the Supreme Court in the same case: Phillips v News Group Newspapers Ltd [2012] UKSC 28 at [11]

.

55 J D Heydon, Cross on Evidence, LexisNexis (Electronic Version), [25165].

Statutory abrogation and codification

18.16 The common law right to privilege against self-incrimination can only be abrogated by statute using clear words or by necessary implication.56 In each case its availability will be determined upon the proper construction of the statute conferring powers to order compulsory disclosure of information, documents or other things. There are a number of statutes that abrogate the privilege in its entirety,57 while others abrogate the privilege against producing documents or answering questions, but preserve a ‘use immunity’ in respect of the material or answers so that it cannot be used in evidence against the person.

56 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609

.

57 For example, Bankruptcy Act 1966 (Cth) s 81(11AA).

18.17 A good example of the latter is s 155(7) of the Competition and Consumer Act 2010 (Cth). It provides that:

Page 10 of 18 Chapter 18 The Privilege against Self-Incrimination

A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection,is not admissible in evidence against the person.

Page 753

18.18 Section 155(7) relates to the obligation in s 155(5) to comply with a notice under s 155(1). Section 155(1) empowers the Commission to order a person to produce documents or appear before the Commission to provide information ‘if the Commission, the Chairperson or the Deputy Chairperson has reason to believe that a person is capable of furnishing information,producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act’.

18.19 In Pyneboard Pty Ltd v Trade Practices Commission, the High Court ruled that the forerunner to s 155(7) abrogated the privilege against exposure to civil penalties by necessary implication. Mason ACJ, Wilson and Dawson JJ expressly acknowledged that legislation is construed as abrogating a common law right only if it does so expressly or by necessary implication.They held the statute did abrogate the privilege against civil penalties by implication, pointing to the express provision in s 155(7) abrogating privilege against self-incrimination for a criminal offence. It would, therefore, be ‘irrational to suppose that Parliament contemplated that a person could be compelled to admit commission of a criminal offence yet be excused from admitting a contravention of the Act sounding in a civil penalty’.58

58 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609 at 620

.

18.20 More generally, were the privilege still available, it would effectively defeat the purpose of the Act. Their Honours stated: Without obtaining information, documents and evidence from those who participate in contraventions of the provisions of Pt IV of the Act the Commission would find it virtually impossible to establish the existence of those contraventions.The consequence would be that the provisions of Pt IV could not be enforced by successful proceedings for a civil penalty under s 76(1).59

Similarly, in the view of Brennan J in Pyneboard, no implied qualification was to be read into the obligation to comply with a notice under s 155(1) of the Act for that would frustrate the purpose of investigating suspected contraventions of Pt IV of the Act.60

Page 11 of 18 Chapter 18 The Privilege against Self-Incrimination

59 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609 at 619

.

60 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609 at 629

.

18.21 The fact that Australian courts draw a distinction between the privilege against criminal punishment and the privilege against exposure to a civil penalty has also been said to be relevant to the issue of abrogation. In Price v McCabe; Ex parte Price,61 the Queensland Full Court said that where the risk is exposure to a civil penalty, as opposed to criminal punishment, this was one matter which might encourage a court in inferring an intention to abrogate the privilege.62

61 Price v McCabe; Ex parte Price (1984) 55 ALR 319 (Qld FC). 62 See also Police Service Board v Morris (1985) 156 CLR 397

.

18.22 Statute can indirectly abrogate the privilege through the classification, or re-classification, of an order as a penalty or not. For example, in Rich v ASIC,63 the High Court held that an order for disqualification of a person from acting as a company director is an order for the imposition of a penalty, but the effect of this decision has been reversed by s 1349 of the Corporations Act 2001 (Cth).

Page 754

63 Rich v ASIC (2004) 220 CLR 129; [2004] HCA 42

.

18.23 Finally, abrogation of the privilege against self-incrimination must be compatible with the Human Rights Charters in force in the Australian Capital Territory and Victoria, and courts will have regard to those charters in deciding whether upon the true construction of the statute the parliament did in fact abrogate the privilege.64

64 for example, Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 .

Page 12 of 18 Chapter 18 The Privilege against Self-Incrimination

Court’s power to order disclosure of evidence subject to privilege conditional upon immunity certificates

18.24 While some statutes expressly provide that compulsory disclosure of documents or oral evidence that has an incriminating tendency is not admissible in evidence against that party, it is sometimes thought necessary or fair to confer an immunity on a witness in respect of matters related to their potentially incriminating answers or documents that a court orders them to disclose. Section 128 of the uniform evidence legislation is based on this principle. Section 128(1) applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country; or is liable to a civil penalty. Section 128(2) provides that the court must determine whether or not there are reasonable grounds for the objection. Reasonable grounds have included a non-improbable risk that the claimant might be charged if he or she gave the evidence.65

65 Ewin v Vergara (No 2) (2012) 209 FCR 288; 300 ALR 667; [2012] FCA 1518 at [12]

.

18.25 However, under subs (4), the court has the power to order the witness to give the evidence if it is satisfied that (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (b) the interests of justice require that the witness give the evidence. If the court does make such an order, or the witness is willing to give the evidence without the need for such an order, the court must grant the witness a certificate which confers a use immunity in any proceedings in an Australian court in respect of the evidence, or any other evidence obtained as a direct or indirect consequence of the person having given evidence.66

66 However, certificates do not apply to criminal proceedings in respect of the falsity of the evidence given by the witness.

18.26 The question of whether a person who positively wishes to invoke the immunity protections under s 128 can be said to ‘object’ to the giving of the evidence is a question that has not been settled.67 However, where there is no compulsion to give evidence the section does not apply because there is nothing to object to, so the rule does not apply to a party-witness, who is giving evidence-in-chief to questions from

Page 755 the party-witness’s own legal representative and who wishes to give the evidence but is not willing to do so except with the protection of a s 128 certificate.68

Page 13 of 18 Chapter 18 The Privilege against Self-Incrimination 67 It was discussed but not decided in Cornwell v R (2007) 231 CLR 260; 234 ALR 51; [2007] HCA 12 at [106]–[113]

.

See also Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336; [2009] NSWCA 145 , suggesting it did not apply to witness wanting to give evidence. However, s 128(5) states that witnesses who are willingly to voluntarily give the evidence subject to s 128(1) are entitled to an immunity certificate. 68 Song v Ying (2010) 273 ALR 213; [2010] NSWCA 237 at [24],[28] . Objections do, however, extend to the unwillingness to give the evidence, not just particular questions, so that s 128 can apply even in re-examination: Ollis v Melissari [2005] NSWSC 1016

.

18.27 Western Australia has a similar procedure to s 128 in which a court may, where it considers it to be in the interests of justice, determine to grant an immunity certificate to a witness, but in such cases the witness is not entitled to claim the privilege, and they must answer all the questions put in order to be entitled to the certificate.69 The availability of s 128 outside of trials has been questioned.70

69 Evidence Act 1906 (WA) s 11. 70 Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257; [2003] NSWCA 158 at [48]–[49]

.

18.28 Section 128A of the uniform evidence legislation contains a procedure for asserting the privilege in response to interim preservation orders such as freezing and search orders. Where a person objects to complying with a disclosure on the grounds of the privilege they must still disclose the existence of everything to which no privilege is claimed, and in respect of the material to which the privilege is claimed, prepare an affidavit containing the material in a sealed envelope to the court. How the court deals with the objection under s 128A largely follows the same course for s 128. The court must decide whether there are reasonable grounds for the objection. If there are reasonable grounds it must not order disclosure of the evidence. However, it does have the power to order its disclosure on the granting of an immunity certificate to prevent the evidence disclosed, and evidence of any information, document or thing obtained as a direct result or indirect consequence of the person having disclosed the information, from being used against the person.71

71 Evidence Act 1995 (Cth) s 128A(1)–(12); Evidence Act 2011 (ACT) s 128A(1)–(12); Evidence Act 1995 (NSW) s 128A(1)–(12); Evidence (National Uniform Legislation) Act 2011 (NT) s 128A(1)–(12); Evidence Act 2001 (Tas) s 128A(1)–(12); Evidence Act 2008 (Vic) s 128A(1)–(12).

18.29 Section 87 of the Uniform Civil Procedure Act 2005 (NSW) contains an equivalent procedure for objections to orders for production under an interlocutory order that would not otherwise be dealt with under s 128A of the uniform evidence legislation. Section 87 can be invoked by any person whether or not a party, or even a witness, and applies to evidence that may tend to prove that the person objecting is engaged in culpable conduct. This provision covers the same ground as the uniform evidence legislation but also extends to civil penalties under a

Page 14 of 18 Chapter 18 The Privilege against Self-Incrimination foreign country.

Application of the privilege to disclosure and production of documents

18.30 The application of the privilege against self-incrimination to documents is both questionable and complicated. It therefore calls for special attention. While the powers of a court to override the privilege may take the sting out of the problem,the fact that the power may be confined to curial proceedings, and is conditional upon the issuing of an immunity certificate, means that the privilege over documents still

Page 756 warrants review. It will be argued that there is no strong justification supporting the existence of this immunity.

18.31 There are several reasons for suggesting that the application of the privilege to the disclosure procedure is anachronistic and should be revised. First, production and disclosure are testimonial obligations only in a technical sense, because the evidential significance of pre-existing documents does not turn on what the person producing or disclosing them now says but on what they say for themselves. Indeed, where documents incriminating a defendant can, for example, be obtained without the defendant’s assistance, they are perfectly admissible. As already mentioned, the relevance of the privilege to any civil proceeding has been questioned. In AT & T Istel Ltd v Tully,72 Lord Griffiths said:73 I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence. The contents of the document will speak for itself and there is no risk of the false confession which underlies the privilege against having to answer, questions that may incriminate the speaker.

72 AT & T Istel Ltd v Tully [1993] AC 45

; [1992] 3 All ER 523

.

73 AT & T Istel Ltd v Tully [1993] AC 45

; [1992] 3 All ER 523 at 57and 533–4

respectively.

18.32 A similar view was expressed by the High Court in EPA v Caltex Refining Co Pty Ltd:74 Plainly enough the case for protecting a person from compulsion to make an admission of guilt is much stronger than the case for protecting a person from compulsion to produce books or documents which are in the nature of real evidence of guilt and are not testimonial in character.

In the same case, Brennan J stated:75

Page 15 of 18 Chapter 18 The Privilege against Self-Incrimination

The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction wrung out of the mouth of the offender.

74 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 503 Toohey JJ. 75 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 514

per Mason and

.

18.33 The High Court made a slightly different point in Controlled Consultants Pty Ltd v Comr for Corporate Affairs that the privilege has no application to the seizure of documents or their use for the purpose of incrimination, provided the documents can be proved by independent means.76

76 Controlled Consultants Pty Ltd v Comr for Corporate Affairs (1985) 156 CLR 385 at 393 Ligertwood, Australian Evidence, 3rd ed, Butterworths, Sydney, 1998, pp 323–5.

. For discussion, see A

18.34 The application of the privilege to civil search orders is even more difficult to justify because it verges on the absurd.77 Suppose that the defendant has been running a fraudulent business using fraudulent invoices and accounts. The documents would be immune from disclosure and from seizure under a civil search order because they may assist the defendant’s conviction for fraud. Yet, in criminal proceedings, a criminal

Page 757 search order can be obtained to seize evidence of fraudulent practice.78 Against a criminal search order the defendant has no privilege against self-incrimination because the execution of a criminal search order authorises the police to enter, search and seize without the suspect’s consent and, therefore,imposes no testimonial obligation on the suspect. It would therefore appear that while the defendant is immune from a civil search order, lest incriminating documents would be found which could later be used in criminal proceedings, he or she has no immunity in criminal proceedings from the forcible seizure of the same documents which, once in the hands of the police, would be admissible in evidence at the defendant’s criminal trial.

77 for discussion of search orders, see Chapter 15. 78 Controlled Consultants Pty Ltd v Cmr for Corporate Affairs (1985) 156 CLR 385; 57 ALR 751 at 756 ; R v Wright [1980] VR 593 (FC); Police and Criminal Evidence Act 1984 (UK) ss 8 and 19; see also Chic Fashions v Jones [1968] 2 QB 299

; Garfinkel v MPC [1972] Crim LR 44

; Blackstone’s Criminal Procedure, 2003, para D.151.

Page 16 of 18 Chapter 18 The Privilege against Self-Incrimination

18.35 Recent English authority has developed the law in such a way that it now seems clear that, in respect of civil search orders, the privilege does not apply to documents that exist independently of the search order. In C plc v P,79 a search order was made against the defendant concerning breach of copyright. During its execution a computer was seized and searched for copyright material. The expert conducting the search found child pornography material. He applied to the court for directions whether he was free to notify the police of the material, but the defendant objected on grounds of self-incrimination. The Court of Appeal stressed that the search order in this case was distinguishable from the one in Rank Film Distributors where the order was directed to the seizure of incriminating material. Here the order was directed to the seizure of copyright infringement material which was obtainable under s 72 of the Senior Courts Act 1981 (UK). Longmore LJ explained that the privilege could ‘not apply to a “thing” discovered in execution of a court order as distinct from a “thing” that is compelled to be produced. … independent matters coming to light in the course of executing a proper order of the court are in an altogether different category’.80

79 C plc v P [2007] EWCA Civ 493

.

80 C plc v P [2007] EWCA Civ 493 at [34]

.

18.36 Longmore LJ did not, however, settle on disposing the case on this narrow basis. He drew attention to the jurisprudence of the European Court of Human Rights and explained that at common law the privilege against selfincrimination did not apply to documents which existed independently of the request to produce them; namely, documents which came into existence independently of any compulsion to testify or make disclosure. He therefore concluded: [A]lthough the offending material had to be disclosed to the Supervising Solicitor and the computer experts by virtue of the order originally granted by Peter Smith J [the search order], there is no privilege in the offending material itself which is material which existed independently of the order.81

Sir Martin Nourse agreed that the privilege against self-incrimination did not apply to independently existing documents and that, therefore, a party to civil proceedings could not refuse disclosure of such documents on grounds of privilege.These views

Page 758 did not represent the ratio of the decision, which turned on the narrower ground mentioned above. Nonetheless, in R (on the application of Malik) v Manchester Crown Court, Dyson LJ considered it to be the majority’s ratio.82 However, the Court of Appeal in that case declined to express a view on the validity of the ruling in C plc v P, except to note that the court had not been referred to R v Central Criminal Court; Ex parte Bright,83 where a different view had been expressed, to the effect that the privilege against self-incrimination can apply to independently existing documents.

81 C plc v P [2007] EWCA Civ 493 at [36]

.

82 R (on the application of Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin); [2008] 4 All ER 403 at [74] 83 R v Central Criminal Court; Ex parte Bright [2001] 2 All ER 244 (QB, DC).

.

Page 17 of 18 Chapter 18 The Privilege against Self-Incrimination

18.37 Subsequent decisions have proceeded on the assumption that the view expressed by Longmore LJ and Sir Martin Nourse in C plc v P represented the correct analysis and that the privilege against self-incrimination could not be invoked to refuse disclosure of documents or other evidence that existed independently of the disclosure request.84 Of particular significance is R v S,85 where a computer suspected of containing terrorist material was seized from X. X was served with notice requiring him to disclose the encryption keys to the computer so that the information stored in it could be accessed. He argued that he was entitled to refuse disclosure on grounds of self-incrimination. Speaking for the Court of Appeal, Sir Igor Judge P cited with approval the judgment of Aikens J in R v Kearns that: There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances …86

Sir Igor Judge P went on to say that ‘the same reasoning was applied in C plc v P ’.87 In R v S, the Court of Appeal held that an order to produce the encryption keys would only be incriminating if knowledge of the key was an incriminating fact, for example because it linked the defendant to the computer (or any storage device which contained incriminating material). However, where it is already known that the defendants can access the computer: [T]he actual answers [allowing the material to be unencrypted], that is to say the product of the defendants’ minds could not, of themselves, be incriminating. The keys themselves simply open the locked drawer, revealing its contents.In much the same way that a blood or urine sample provided by a car driver is a fact independent of the driver, which may or may not reveal that his alcohol level exceeds the permitted maximum, whether the defendants’ computers contain incriminating material or not, the keys to them are and remain an independent fact.88

Page 759

84 See, for example, Milsom v Ablyazov [2011] EWHC 1846 (Ch) at [19]–[20]. 85 R v S [2008] EWCA Crim 2177; [2009] 1 All ER 716

.

86 R v Kearns [2002] EWCA Crim 748; [2002] 1 WLR 2815

(CA) at [53]

87 R v S [2008] EWCA Crim 2177; [2009] 1 All ER 716 at [18]

.

. This is particularly significant because it was Judge LJ

who was taken to have expressed a different view in R v Central Criminal Court; Ex parte Bright [2001] 2 All ER 244 (see note 84 above). 88 R v S [2008] EWCA Crim 2177; [2009] 1 All ER 716 at [21]

.

18.38 It is suggested that the weight of English authority favours the view that the privilege against self-incrimination does not provide an excuse from giving disclosure of documents that exist independently of the disclosure order. There is

Page 18 of 18 Chapter 18 The Privilege against Self-Incrimination nothing in the uniform evidence legislation that would prevent an Australian court from coming to the same view.

Conduct in the same proceedings in which privilege is claimed

18.39 The performance of disclosure obligations in litigation is underpinned by the sanction of contempt. Were the privilege available in contempt proceedings this would pose a serious obstacle to the effective enforcement of court orders and the integrity of judicial proceedings.89 There is some authority that the privilege applies in relation to civil contempt committed in the same proceedings as those in which the privilege is claimed. For example, in the case of Memory Corp plc v Sidhu,90 the defendant was ordered, in pursuance of a freezing order, to disclose his assets by affidavit. When doubts were expressed about the adequacy of the disclosure, the defendant was ordered to attend for cross-examination, but the court held that the privilege against self-incrimination entitled him to decline answering questions that might reveal that he had not complied with the order because his answers might expose him to contempt proceedings.91

89 See discussion by CJ Miller, Contempt of Court, 3rd ed, Oxford University Press, Oxford, 2000, p 48. 90 Memory Corp plc v Sidhu [2000] Ch 645

; [2000] 1 All ER 434 (Ch)

91 See also Bhimji v Chatwani (No 3) [1992] 4 All ER 912

.

; Cobra Golf Ltd v Rata [1998] Ch 109

; [1997] 2 All ER

150 . It was said in the last-mentioned case that the privilege against self-incrimination could not stand in the way of a search order which was intended to implement a disclosure order already made in the same proceedings.

18.40 It would therefore appear that a defendant could both evade the duty of disclosure and escape the sanction of contempt. If the defendant lies about their assets they cannot be committed for contempt for refusing to provide disclosure, because they have given disclosure. At the same time, the inadequacy of their disclosure cannot be exposed, because they must not be cross-examined for fear of self-incrimination. Where the defendant has sworn a false affidavit they could be prosecuted for perjury.Although there is mixed authority on the point, there is case law holding that there is no privilege against self-incrimination for perjury committed in the same proceedings as those in which the privilege is claimed.92

92 Rice v Gordon (1843) 13 Sim 580; 60 ER 225

; Emanuel v Emanuel [1982] 2 All ER 342; [1982] 1 WLR 669

;

Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 3 All ER 750; [1985] 1 WLR 1066

;

Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388; [2003] SASC 276 holds, strangely, that the privilege does not apply on grounds of waiver, but the waiver does not extend to subsequent proceedings; AttorneyGeneral (Vic) v Wallace (1982) 65 FLR 15

(Vic SC) assumes that the privilege applies, but does not discuss the

English case law. See also Zappia v Registrar of the Supreme Court (2004) 90 SASR 193; [2004] SASC 375

End of Document

.

Chapter 17 Without Prejudice Privilege Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 17 — Without Prejudice Privilege

Chapter 17 Without Prejudice Privilege Page 713 [Current to May 2018]

The general rule The common law

17.1 The common law has long accepted that encouraging settlement is in the public interest, and has accordingly adopted the ‘without prejudice’ rule to promote settlement without litigation.1 The aim of the rule, which has become known as ‘without prejudice privilege’ (also ‘settlement privilege’) is to enable opposing parties to negotiate without fear that adverse inferences may be drawn from what they say during settlement negotiations and mediation, whether written or oral. Under this rule, statements made by the parties during discussions conducted with a view to reaching an agreed resolution of their dispute2 are inadmissible in evidence and are privileged from disclosure obligations, subject to certain riders outlined below.

1

Field v Commissioner for Railways NSW (1957) 99 CLR 285 at 291

per Dixon CJ, Webb, Kitto and Taylor JJ; Hong

Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 522

per Gleeson CJ; Silver Fox Co Pty Ltd v

Lenard’s Pty Ltd (No 3) (2004) 214 ALR 621; [2004] FCA 1570 at [36]

per Mansfield J; Yokowaga Aust Pty Ltd v

Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [70] per Duggan J; N H Andrews, ‘Privileged Documents: “Without Prejudice” Communications’ (1989) 48 Civil Justice Quarterly 43; D Vaver, ‘Without Prejudice Communications — Their Admissibility and Effect’ (1974) 9 University of British Columbia Law Review 85; P M Perell, ‘The Problems of Without Prejudice’ (1992) 72 Canadian Bar Review 223; H L Ross, ‘The Without Prejudice Rule’ [2002] 152 (7050) National Law Journal 1488. For arbitration, see J A Fry, ‘Without Prejudice and Confidential Communications in International Arbitration’ (1998) 1(6) International Arbitration Law Review 209; C Hollander, Documentary Evidence, Sweet & Maxwell, London, 2012, Ch 16; R J Desiatnik, Without Prejudice Privilege in Australia, LexisNexis Butterworths, Sydney, 2010, p 56. 2

The privilege applies to disputes. Accordingly, a communication in the course of a tax audit where no proceedings had been contemplated was held not to be protected by the privilege: Glengallan Investments Pty Ltd v Anderson [2002] 1 Qd R 233

.

17.2 A statement of the privilege and its purpose is to be found in Lord Griffiths’ speech in Rush & Tompkins Ltd v Greater London Council:3

Page 2 of 37 Chapter 17 Without Prejudice Privilege

The ‘without prejudice rule’ is a rule governing the admissibility of evidence and is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment

Page 714 of Oliver LJ in Cutts v Head :4 ‘That the rule rests, at least in part, on public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply)may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd ,5 be encouraged freely and frankly to put their cards on the table … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’ The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.

3

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

4

[1984] 1 All ER 597 at 605–6

5

(1927) 44 RPC 151 at 157

(HL) at 1299.

. .

17.3 The without prejudice rule has two consequences. First, statements made in the course of settlement negotiations may not be tendered in evidence or relied upon by the parties (the inadmissibility aspect).6 Secondly, communications made in aid of settlement are immune from disclosure to either other parties or to the court (the privilege aspect).7 A ‘without prejudice’ communication continues to be both inadmissible and privileged even after the case has concluded, whether by agreed settlement or by judgment.8

6

Walker v Wilsher (1889) 23 QBD 335 (EWCA Civ); Cutts v Head [1984] 1 All ER 597 ; Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (HL). The communications are without prejudice to the author: Walker v Wilsher (1889)23 QBD 335 (EWCA Civ) at 339 per Lindley LJ.

7

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

(HL); Trade Practices Commission v Arnotts Ltd

(1989) 88 ALR 69 (FCA); Bailey v Beagle Management Pty Ltd [2001] FCA 185 at [18] 8

per Goldberg J.

First Capital Partners Pty Ltd v Slyvatech Ltd (2004) 186 FLR 266 (NSWSC) at 271 per Campbell J.

17.4 By freeing the parties of the fear that statements made during settlement negotiations could be later used to their disadvantage, the rule facilitates an uninhibited exchange of views between the parties.9 The importance of a safe channel of inter-party communications as a vehicle for settlement cannot be exaggerated. The less parties are inhibited in their communications with each other, the more likely they are to resolve their differences without

Page 3 of 37 Chapter 17 Without Prejudice Privilege adjudication.10 This is because it is more likely that the parties would exchange information and to tell each other what they might be willing to concede. Given that encouraging settlement forms part of the overriding objective, the importance of the ‘without prejudice’ rule is today even greater than before.11 Accordingly, it follows that in interpreting the rule, in determining the scope of protection afforded by it, and in defining the range of exceptions, priority must be given to the need to give parties maximum freedom to communicate without fear of adverse inference.12

Page 715

9

Cutts v Head [1984] 1 All ER 597 at 605–6

.

10 Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2011] 1 AC 662 SCJ.

; [2010] UKSC 44 at [19]

per Lord Clarke

11 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at 288 per Byrne J. 12 Unilever v Procter & Gamble [2001] 1 All ER 783; [2000] 1 WLR 2436

(EWCA Civ)

.

The statutory form of the privilege

17.5 In those jurisdictions which have enacted the Uniform Evidence Act, the admissibility aspect of the rule, and its exceptions, has been restated and, to some extent, modified by legislation.13 Section 131(1) of the Act provides: Evidence is not to be adduced of: (a)

a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)

a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

13 The Uniform Evidence Act is enacted in the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence Act 2004 (NI); Evidence (Uniform National Legislation) Act (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

17.6 The privilege applies in relation to a dispute of a kind in respect of which relief may be given in Australian or overseas proceedings. It is not limited to disputes which may only be adjudicated in an Australian court.14 Furthermore, the privilege is not confined to disputes that are the subject of existing proceedings. It is sufficient that proceedings for relief are contemplated.15 Much like the position under the common law, the privilege does not apply in relation to an attempt to negotiate a settlement of a criminal prosecution or an anticipated criminal prosecution.16 While the privilege in s 131 is similar to the common law, it is more prescriptive in some respects, as will be seen below.

Page 4 of 37 Chapter 17 Without Prejudice Privilege

14 Uniform Evidence Act s 131(5)(a). 15 Bailey v Beagle [2001] FCA 185 at [15] [2001] FCA 596 at [170]–[172]

per Goldberg J; Brown v Commissioner of Taxation (2001) 187 ALR 714;

per Emmett J; Korean Air Lines v Australian Competition and Consumer

Commission (No 3) (2008) 247 ALR 781; [2008] FCA 781 at [67] [2016] NSWSC 386 at [25]

per Jacobson J; Dowling v Ultraceuticals Pty Ltd

per Hammerschlag J.

16 Uniform Evidence Act s 131(5)(b). In relation to the position under the common law, see, for example, Davies v Nyland (1975)10 SASR 76 at 90–1 per Wells J. See also R v K [2010] QB 3 ; [2009] EWCA Crim 1640 , where the English Court of Appeal held that a without prejudice communication regarding a civil dispute was not privileged as against a criminal prosecution. The court reasoned that the public interest in a prosecution outweighed the public interest in encouraging the settlement of private disputes.

17.7 The opening words of s 131(1) of the Act, namely ‘evidence is not to be adduced’ (emphasis added), raised doubts about whether the statutory form of the privilege was intended to apply to pre-trial procedures, such as discovery.17 Some of the early authorities held that it did.18 However, in Esso Australia Resources Ltd v Federal Commissioner of Taxation ,19 a case concerning legal professional privilege under the

Page 716 Uniform Evidence Act, Foster J held that, as a matter of statutory construction, it did not. The High Court took the same view, namely that it must have been parliament’s intention that the common law would continue to govern discovery, production and inspection of documents in situations ‘other than the adducing of evidence’.20 As a result of the Esso decision, it was the case that the privilege regarding the admissibility and use of settlement discussions at the pre-trial stage was governed by the common law, whereas the admissibility and use of those same discussions at trial would be governed by the Uniform Evidence Act — an undesirable result given the potential for inconsistencies.21

17 for further discussion, see R J Desiatnik, Without Prejudice Privilege in Australia, LexisNexis Butterworths, Sydney, 2010, pp 140–2. Similar issues were faced in relation to the statutory form of legal professional privilege under the Uniform Evidence Act ss 118 and 119. 18 for example, Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366 (FCA); Telstra Corp v Australis Media Holdings Ltd (1997) 41 NSWLR 277 (NSWSC). 19 (1997) 150 ALR 117 (FCA) at 122. See also Zemanek v Commonwealth Bank of Australia (FCA, 2 October 1997, unreported). 20 Esso Australia Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 100–1

per Callinan J.

21 See also the discussion in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [17]–[27] relation to legal professional privilege).

per Gleeson CJ (in

17.8 Attempts have been made to ameliorate the effect of the opening words of s 131(1). The Australian Law Reform Commission recommended that the legal privilege of the Uniform Evidence Act (which also includes legal professional privilege) should be extended to other compulsory court processes such as discovery.22 Amendments were subsequently made in the Australian Capital Territory,23 New South Wales,24 Northern Territory,25 Tasmania 26 and Victoria,27 such that the privilege now operates to prevent the disclosure of the communication in interlocutory processes, such as preliminary discovery and the answering of interrogatories. Furthermore, in New South Wales,

Page 5 of 37 Chapter 17 Without Prejudice Privilege the Uniform Civil Procedure Rules 2005 (NSW) provide that a person may object to producing a document or answering a question on the ground that it contains ‘privileged information’,28 which includes information to which s 131 of the Evidence Act 1995 (NSW) applies.

22 Australian Law Reform Commission, Uniform Evidence Law, Final Report No 102, 2005, p 31, Recommendation 14-1. 23 Evidence Act 2011 (ACT) s 131A(1). 24 Evidence Act 1995 (NSW) s 131A(1). 25 Evidence (National Uniform Legislation) Act (NT) s 131A(1). 26 Evidence Act 2001 (Tas) s 131A(1). 27 Evidence Act 2008 (Vic) s 131A(1). 28 Uniform Civil Procedure Rules 2005 (NSW) r 1.9(3).

17.9 In South Australia, s 67C(1) of the Evidence Act 1929 (SA) provides that evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings.

The rationale for the privilege The public interest

17.10 The rationale for the without prejudice rule is supported by convention, as well as by public policy. Three reasons may be advanced as the basis for the rule regarding the privilege. The first, which has already been mentioned, is the public interest in encouraging the settlement of disputes.29 This is the primary reason for

Page 717 the privilege. Indeed, the drafters of the Uniform Evidence Act saw this as providing the normative basis for the statutory form of the privilege when they inserted s 131 in the division of the legislation entitled ‘Evidence excluded in the public interest’.30 As Kirby J observed in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd ,31 ‘the courts could not cope were it not for the fact that the overwhelming majority of cases are compromised’. The facilitation of settlements, including through alternative dispute resolution, is conducive to the overriding objective in that it is likely to spare court resources.32

29 Law Reform Commission, Evidence, Interim Report No 16, 1985, Vol 1, [891]. See Hoefler v Tomlinson (1995) 60 FCR 452 at 453

per Spender J (in relation to s 131 of the Evidence Act 1995 (Cth)).

30 Uniform Evidence Act Pt 3.10 Div 3. 31 (1998) 192 CLR 603; [1998] HCA 38 at [97]

.

32 See Chapter 29 generally; Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at 288

per Byrne J.

Page 6 of 37 Chapter 17 Without Prejudice Privilege

17.11 The proposition is sometimes advanced that the ‘without prejudice’ rule balances two competing public interests: the interest of placing before the court all available evidence that will assist the court in reaching a correct decision,and the interest of encouraging the parties to reach a settlement.33 However, it is not entirely correct to say that the two interests are at odds with each other, such that they need to be balanced. The communications which are protected by the ‘without prejudice’ rule are communications which have been created as a result of the rule. In the absence of the rule’s protection, parties to a dispute would simply not communicate information which may prejudice them, even if it was for the purpose of reaching a settlement. It follows therefore that the privilege does not lead to the loss of evidence that would otherwise be available.

33 Prudential Assurance Co Ltd v Prudential Insurance Co of America (No 2) [2003] EWCA Civ 115 at [23] per Chadwick LJ, referring to Lord Griffiths in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

at 1300

.

Implied agreement

17.12 The second basis for the rule is that when parties agree to negotiate on the basis that they would not be prejudiced by what has passed during their negotiations, it would amount to breach of the agreement for one of them to turn around and tender its opponent’s admission in evidence.34 Lord Clarke SCJ in Oceanbulk Shipping and Transit SA v TMT Asia Ltd 35 observed that while:

Page 718   … the rule was recognised as being based at least in part on public policy, its other basis or foundation is in the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite their negotiations, a contested hearing ensues.

34 E Bray, Bray On Discovery, p 308: ‘The right to discovery may under very special circumstances be lost by contract as where correspondence passed between the parties’ solicitors with a view to an amicable arrangement of the question at issue in the suit on a stipulation that it should not be referred to or used to the defendant’s prejudice in case of a failure to come to an arrangement,’ cited in Rabin v Mendoza& Co [1954] 1 All ER 247; [1954]1 WLR 271

; Field

v Commissioner for Railways NSW (1957) 99 CLR 285 at 292 per Dixon CJ, Webb, Kitto and Taylor JJ; Lukies v Ripley (No 2) (1994) 35 NSWLR 283 (NSWSC) at 287 per Young J; Muller v Linsley & Mortimer (a firm) [1996] 03 LS Gaz R 38; [1996] PNLR 74 (EWCA Civ); Somatra Ltd v Sinclair Roche & Temperley [2000] 1 WLR 2453 (EWCA Civ); Unilever v Procter & Gamble [2001] 1 All ER 783; [2000] 1 WLR 2436

(EWCA Civ) at 3448–9

Walker LJ; Pihiga Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240 at [83],[86] Ltd v Lewis [2012] WASC 373 at [31]–[32] 35 [2011] 1 AC 662

17.13

; [2010] UKSC 44 at [24]

per Pritchard J. .

per Robert

per Lander J; Broadway Pty

Page 7 of 37 Chapter 17 Without Prejudice Privilege There is, furthermore, an intimate connection between convention, or agreement, and fairness. Where, in the course of settlement discussions, one party makes a statement which it would not have made in an adversarial context, it would be unjust to allow the other party to use the first party’s statement to its detriment. Parties who participate in settlement discussions agree to do so in accordance with certain rules. It would therefore be unfair to allow one of them to break free of the restraint and retrospectively change the rules that governed their relationship up to that point. The without prejudice rule binds a party both ways, in the sense that a party is prohibited from using its own communications as well as its opponent’s.Thus, a party is entitled to restrain the other party not only from relying on the first party’s statements, but also from relying on its own statements. Once the parties have agreed to conduct negotiations under the veil of privilege, it would be unfair for one of them to rely on any part of the privileged communication to its own advantage or to the disadvantage of the opponent.

17.14 While this reason for the rule may explain why the parties to a without prejudice communication should not be able to use the communication in an adversarial context, it does not completely account for all aspects of the rule. For instance,it does not explain situations in which one party makes a unilateral offer (‘an opening shot’ offer) to the other party by way of a letter, such as a Calderbank offer.36 It cannot be said that the other party has agreed expressly to keep the offer confidential. Furthermore, it does not explain why the privilege can be invoked to prevent the production or disclosure of the communication to a third party.37 Lord Rodger of Earlsferry acknowledged this issue when he said: … while part of the justification for excluding reference to what was said is to be found in the understanding of the parties to the relevant correspondence or negotiations, the rule is actually a privilege which forms part of the general law of evidence and is based on public policy. So, unless the parties make some agreement to narrow or broaden its effect, the scope of the privilege is a matter of general law and is not based on the supposed boundaries of a notional agreement between the parties.

36 Although in Field v Commissioner for Railways NSW (1957) 99 CLR 285 at 291 , the High Court considered that the lack of an objection by the recipient party to the sender’s use of ‘without prejudice’ to be a tacit acceptance to keep the communication as confidential. See GPI Leisure Corporation (in liq) v Yuill (1997) 42 NSWLR 225 ‘opening shot’offers. Offers of settlement are discussed in Chapter 27.

in relation to

37 R J Desiatnik, Without Prejudice Privilege in Australia, LexisNexis Butterworths, Sydney, 2010, p 62.

17.15 In some respects, the limitations in the implied agreement rationale can be overcome by recognising that it is intimately connected with the public policy justification. If parties have agreed to negotiate or mediate in circumstances where each has agreed to keep the content of the negotiations or mediation confidential, their protection is also dictated by considerations of elementary justice, namely that legitimate expectations

Page 719 created by the law should not be disappointed by the law. In Reed Executive plc v Reed Business Information Ltd,38 Jacob LJ said that ‘parties who have negotiated on a wholly “without prejudice” basis have always done so in the faith and expectation that what they say cannot be used against them even on the question of costs’.39

Page 8 of 37 Chapter 17 Without Prejudice Privilege 38 Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 887; [2004] 4 All ER 942 at [21]

.

39 See, however, 17.64 ff on exceptions to the rule in relation to costs.

Probative value

17.16 The third reason for the ‘without prejudice’ rule, particularly in relation to the admissibility aspect, stems from the apparent low probative value of settlement discussions.40 On this view, a concession made by one party with a view to reaching a pragmatic settlement to a dispute is unlikely to assist a court in adjudicating that dispute. In Thomas v Morgan ,41 Parke B acknowledged that some statements said during settlement discussions may be motivated by charity rather than an intention to admit liability or to assert a truth. Wigmore wrote: The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a specific belief that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim,whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered. In short, the offer implies merely a desire for peace, not a concession of wrong done.42

40 Turton v Benson (1718) 24 ER 488

.

41 (1835) 150 ER 214 at 216. See also J H Wigmore, Evidence, Chadbourn rev edn, Little, Brown, Boston, 1976, Vol 4, [1061]; D Vaver, ‘Without Prejudice Communications — Their Admissibility and Effect’ (1974) 9 University of British Columbia Law Review 85 at 101. 42 Cited in Davies v Nyland (1975) 10 SASR 76 at 89

per Zelling J.

17.17 The fact that a plaintiff makes a Calderbank offer to the defendant, offering to accept 70 per cent of the damages it has claimed, is not an admission by the plaintiff that it is only entitled to 70 per cent of its damages claim.43 The offer may reflect no more than a practical decision by the plaintiff to accept a portion of its claim in order to avoid the trouble and expense of a trial.44 Similarly, a defendant may make an offer not because it considers that it has a weak case, but that it wishes to ‘purchase peace’.45 It is therefore difficult to draw any reliable conclusions about the validity of a statement made by a party in the context of a settlement discussion, particularly when that statement was not made as a statement of truth.

43 See Chapter 27 on protection against costs. 44 Gnitrow Ltd v Cape plc [2000] 3 All ER 763 (EWCA Civ). 45 Wayman v Hilliard (1830) 131 ER 39 at 40

The scope of the privilege

17.18

per Bosanquet J.

Page 9 of 37 Chapter 17 Without Prejudice Privilege At one point it was held that without prejudice privilege is concerned with admissions made by parties and not, for example, with statements of objective facts which may be ascertained during the course of settlement discussions.46 As a practical

Page 720 matter, most cases which have tested the scope of the privilege concern admissions made by a party, because admissions are likely to be of more value in evidence than other statements made by a party.47 The eighteenth century case Waldridge v Kennison 48 provides an early illustration of the limitation of the privilege, although the case has been described recently as ‘exceptional’.49 In that case, during settlement discussions, the defendant admitted that a particular document was in his handwriting (that being an issue in the dispute). After the negotiations had reached an unsuccessful conclusion, the admission was received into evidence at trial given that it was evidence of an ‘objective fact’. Another example is Field v Commissioner for Railways NSW,50 in which a doctor was asked to examine the plaintiff in relation to settling a personal injury claim. As it turned out, the discussions did not result in a settlement and the matter proceeded to trial. The High Court held that the doctor could give evidence on the plaintiff ’s condition that he had observed.

46 See, for example, Field v Commissioner for Railways NSW (1957) 99 CLR 285 at 291

per Dixon CJ, Webb, Kitto

and Taylor JJ; Glengallan Investments Pty Ltd v Andersen [2002] Qd R 233; [2001] QCA 115 at [28] JA.

per Williams

47 A point made by Duggan J in Yokowaga Aust Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [100] . Under the Uniform Evidence Act, an admission is defined as a previous representation that is made by a person who is or becomes a party to a proceeding and which is adverse to the person’s interest in the outcome of the proceeding. In relation to the admissibility of admissions, see s 81 of the Uniform Evidence Act. Generally, the hearsay rule does not apply to prevent evidence of admissions being adduced into evidence. The hearsay rule is discussed in Chapter 22, 22.93–22.96. 48 (1794) 1 Esp 142; 170 ER 306. 49 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 [2010] VSC 589 at [36]

at 1299

, cited in Biovision v CGU Insurance

per Judd J.

50 Field v Railway Commissioners for New South Wales (1957) 99 CLR 285

. Cf Rabin v Mendoza &Co [1954] 1 All ER

247; [1954] 1 WLR 271 , where a surveyor’s report obtained expressly for the purpose of finding an agreed solution to the dispute could not be used to the prejudice of any of the parties. However, there would have been no impediment to calling the surveyor to testify as to what he had observed during his survey, as is the position concerning experts who provide advice covered by litigation privilege.

17.19 The rationale for limiting the privilege to admissions was explained by Hoffman LJ in Muller v Linsley & Mortimer (a firm) ,51 where his Lordship held that the privilege operated as an exception to the general rule on admissions (which itself is an exception to the general rule against hearsay). This limitation, however, has not been followed in Australia and has fallen into disuse in England. It is now accepted that the privilege extends to all bona fide statements made between the parties for the purpose of comprising a dispute, whether or not they are admissions.52 This may include acknowledgments made by a party about the strengths or weaknesses of its case.53

51 [1996] PNLR 74 (EWCA Civ) at 79. This view was echoed in Bradford & Bingley plc v Rashid [2006] 4 All ER 705; [2006] UKHL 37

.

52 Unilever v Procter & Gamble [1999] 2 All ER 691 [2000] 1 WLR 2436

(EWCA Civ)

, affirmed in Unilever v Procter& Gamble [2001] 1 All ER 783;

; Pihigia Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240 at [81]

;

Page 10 of 37 Chapter 17 Without Prejudice Privilege Samnakay v Scholfield [2013] WASCA 138 at [44] [2016] NSWSC 386 at [46]

per Hammerschlag J.

53 Unilever v Procter & Gamble [1999] 2 All ER 691 [2000] 1 WLR 2436 Murphy JJA.

per Newnes and Murphy JJA; Dowling v Ultraceuticals Pty Ltd

(EWCA Civ)

, affirmed in Unilever v Procter& Gamble [2001] 1 All ER 783;

; Samnakay v Scholfield [2013] WASCA 138 at [44]

per Newnes and

17.20 There are pragmatic reasons for the privilege to extend beyond admissions. If the purpose of the privilege is premised on the understanding that a settlement is more

Page 721 likely where parties are able to speak candidly and freely,it follows that the privilege will best fulfil its purpose if it is not confined to admissions. This view was supported by the House of Lords in Ofulue v Bossert,54 where Lord Hope of Craighead said:55 The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.

54 Ofulue v Bossert [2009] 1 AC 990 55 [2009] 1 AC 990

; [2009] UKHL 16

; [2009] UKHL 16 at [12]

.

.

17.21 Similarly, Lord Rodger of Earlsferry observed that if it is right that parties who are trying to settle a dispute should be able to negotiate openly and without fear, ‘there is no obvious justification for drawing a line between admissions and acknowledgments’.56 Lord Neuberger of Abbotsbury further observed that there are practical considerations for not limiting the privilege to admissions. His Lordship followed the view expressed by Walker LJ in Unilever v Procter & Gamble, who said: … the protection of admissions against interest is the most important practical effect of the rule. But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties … to speak freely about all issues in the litigation … Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers … sitting at their shoulders as minders.57

56 [2009] 1 AC 990

; [2009] UKHL 16 at [43]

.

Page 11 of 37 Chapter 17 Without Prejudice Privilege 57 Unilever v Procter & Gamble [2001] 1 All ER 783; [2000] 1 WLR 2436

(EWCA Civ) at 2448–9

.

17.22 The aim of promoting settlement can only be achieved by full, unqualified protection, subject only to well defined exceptions. Furthermore, if parties have proceeded on the assumption that they have full protection, there can be no justification for later denying such protection to them.58 As Byrne J observed in Village Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd :59 And if the privilege operated only to deny the admissibility of admissions in litigation between negotiants, its limited effect would scarcely conduce to an atmosphere calculated to encourage candid exchanges, appropriate concessions, and the creative exploration of options in the negotiations.

58 Bradford & Bingley plc v Rashid [2005] EWCA Civ 1080. 59 [2001] 1 Qd R 276 at [30]

per Byrne J.

17.23 The privilege only applies in circumstances where there is some dispute between the parties, whether or not proceedings are currently on foot.60 Proceedings must at least be anticipated.61 The communications must be for the genuine purpose of

Page 722 attempting to resolve a dispute or part of a dispute.62 Alternatively, the communication must at least be ‘in connection with an attempt to negotiate a settlement’ (in the context of s 131(1) of the Uniform Evidence Act) or ‘reasonably incidental’ to it (the common law position).63 Accordingly, a statement in the form of an offer does not cease to be for the genuine purpose of settlement (or in connection with such a purpose) merely because it is unlikely that the other party will accept the offer. The privilege may also cover a communication in which there is no offer capable of acceptance.64 A ‘take it or leave it’ offer may still be protected by the privilege.65 It is unnecessary for the party making the communication to compromise its position. Very often disputes are settled in circumstances where a party may concede defeat.66 There is no requirement for the parties to find some ‘middle ground’ in order for the privilege to apply.67 The communication may, for example, be in the form of a demand to surrender.68 In fact, it would make the privilege unworkable and uncertain if the court needed to examine whether there was a degree of compromise in each communication. Hence the word ‘negotiate’ in s 131(1) of the Uniform Evidence Act requires nothing more than an arrangement to bring about a settlement.

60 Re Daintrey; Ex parte Holt [1893] 2 QB 116 Ltd [1973] 2 NSWLR 713 at 727

per Vaughan Williams J; Wilson v Kingsgate Mining Industries Pty

per Wooten J; Uniform Evidence Act s 131(3)(a).

61 Glengallan Investments Pty Ltd v Andersen [2002] Qd R 233; [2001] QCA 115 62 Rodgers v Rodgers (1964) 114 CLR 608 at 614 (1996) 190 CLR 311

.

.

per McTiernan, Taylor and Owen JJ; Harrington v Harrington

Page 12 of 37 Chapter 17 Without Prejudice Privilege 63 Field v Commissioner for Railways NSW (1957) 99 CLR 285 at 292

per Dixon CJ, Webb, Kitto and Taylor JJ. In

Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ,Jacobson J (at [72]) took the view that the language used in the Uniform Evidence Act reflects the language used by the High Court in Field. 64 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 (FCA) at 72–3. 65 Samnakay v Scholfield [2013] WASCA 138 at [52]

per Newnes and Murphy JJA.

66 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276 at [33]

per Bromberg J.

67 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276 at [34]

per Bromberg J.

68 Bhagat v Global Custodians Ltd [2002] NSWCA 160 at [29]

per Spigelman CJ.

17.24 If, however, a demand is made in circumstances that make it contemptuous or oppressive, the communication will not be protected by the privilege. In Bhagat v Global Custodians Ltd ,69 the plaintiff sent a defendant (a pensioner) a ‘without prejudice’ letter containing what was held to be improper threats and assertions. Those assertions included incorrect representations that the defendant was not able to receive legal services paid for by another defendant in the proceedings, and a threat that if the defendant gave false evidence, the plaintiff would commence criminal legal proceedings. The New South Wales Court of Appeal found the sending of such a letter to be a contempt, given the tone of the letter and the vulnerability of the defendant. Spigelman CJ held:70 I do not think that the letter, properly understood, satisfies s 131(1) i.e. that it was a communication made ‘in connection with an attempt to negotiate a settlement of the dispute’. It appears to me to contain peremptory demands accompanied by threats. There was no ‘attempt to negotiate’. As Justice Young said, ‘merely marking a letter “without prejudice” does not give it magical status’.

Page 723

69 [2002] NSWCA 160

.

70 [2002] NSWCA 160 at [28].

17.25 The privilege applies equally to communications that are made ‘post-settlement’ provided they are reasonably incidental to the settlement negotiations.71 For example, the parties in a dispute may have negotiated an in-principle agreement, subject to a written settlement agreement. The privilege would extend to the parties’ communications in relation to the drafting of the agreement.72 This is subject to the potential exception, discussed below, where the parties may seek to rely on without prejudice communications to enforce the terms of the settlement agreement.73

71 Field v Commissioner for Railways NSW (1957) 99 CLR 285 at 292

per Dixon CJ, Webb, Kitto and Taylor JJ;

Alstom Power Ltd v Tokogawa Australia Pty Ltd (No 3) [2009] SASC 100 at [38]

per Ambrose J, approved in

Yokowaga Aust Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [103]

per Duggan J.

Page 13 of 37 Chapter 17 Without Prejudice Privilege 72 Yokowaga Aust Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [103]

per Duggan J.

73 See 17.52 ff.

A basis for further factual inquiries

17.26 Through settlement discussions, particularly in mediation, a party may learn of a fact it may not have previously known. If the settlement discussions are unsuccessful, the recipient of a without prejudice communication may be tempted to lead evidence of the fact it has learned from that communication. The privilege does not prevent the party from leading evidence on that fact, but it will prevent that party from relying on the without prejudice communication as the source of proof.74 In AWA Ltd v Daniels ,75 Rolfe J explained this distinction as follows: I must say at the outset that I find it a somewhat surprising submission that if in the course of mediation or settlement negotiations a party learns about a matter or has a matter as to which it had a belief or opinion confirmed, and the mediation or settlement negotiations fail, that party cannot ‘use’ the information thus obtained to further its case. That does not mean it can lead evidence that at mediation a party made an admission or statement. Rather it seeks to prove the subject matter of the admission aliunde.76 It may cross-examine or take other legitimate forensic steps to prove or disprove the fact. If the party could not do this an absurd position could arise. A party could make admissions about all manner of things going directly to the issues in the proceedings and then object to any attempt by the other party to prove them on the hearing by legitimate means. That consequence would more completely stifle mediation and settlement negotiations than allowing the matters to be proved by admissible evidence.

74 Williamson v Schmidt [1998] Qd R 317 at 332–6 per Lee J; Huntsman Corporation Australia Pty Ltd v Brookfield Rail Pty Ltd [2012] WASC 70 at [28]

per Allanson J.

75 (NSWSC, 18 March 1992, unreported). Cf AWA Ltd v Daniels (1992) 7 ACSR 463

.

76 That is, from another source.

17.27 This means that a distinction needs to be drawn between the without prejudice communication itself, which is privileged, and the content of the communication, which may not be privileged if it is of a fact.77 In the light of this limitation, parties may, by agreement, broaden the privilege by each undertaking not to make use of the information learned in a negotiation or mediation.78

Page 724

77 789ten v Westpac [2004] NSWSC 594 at [29]

per McDougall J.

78 Re Georges (Liquidator); Sonray Capital Markets Pty Ltd (in liq) [2010] FCA 1371 at [23]

Mediation

per Finkelstein J.

Page 14 of 37 Chapter 17 Without Prejudice Privilege

17.28 It is generally accepted that without prejudice privilege attaches to mediation proceedings where the parties are trying to reach a negotiated settlement.79 In AWA Ltd v Daniels ,80 Rolfe J observed that the nature of mediation ‘perhaps demands a greater degree of frankness and disclosure than in other forms of settlement’. It is obvious that not all statements made in a mediation will be directed to attempting to settle proceedings.81 In Slea Pty Ltd v Connective Services Pty Ltd ,82 it was said that ‘neutral statements’ may fall outside the scope of the privilege. However, Almond J warned that it would undermine the public interest in without prejudice privilege to ‘overly dissect for disaggregate statements’in a mediation into categories.83

79 Lewis v Nortex Pty Ltd [2002] NSWSC 1245 at [3] per Hamilton J. Note that court-annexed mediation will often be governed by legislation restricting the use of information exchanged in a mediation. See 17.84 ff below. For further information regarding mediations, see Chapter 29. 80 (NSWSC, 18 March 1992, unreported). 81 A similar observation may be made in relation to any settlement meeting: CB Australia Ltd v Shepherd [2017] NSWSC 1768 at [52]

per Parker J.

82 [2017] VSC 232 at [20]

per Almond J.

83 [2017] VSC 232 at [24].

Without prejudice and ‘genuine steps’

17.29 Nowadays, a greater emphasis is placed on attempting to resolve disputes before commencing legal proceedings. In the Federal Court and Federal Circuit Court, parties are required to take genuine steps to resolve a dispute before commencing proceedings.84 This requirement is set out in the Civil Dispute Resolution Act 2011 (Cth) (the CDRA).85 Compliance with the CDRA, amongst other things, envisages that the parties discuss the issues in dispute,86 and that each party provides relevant information and documents to the other parties to enable those parties to understand the issues involved and how the dispute may be resolved.87 Similar obligations may also be imposed on parties to a commercial agreement containing a dispute clause requiring the parties to negotiate in good faith or to mediate prior to escalating the dispute to determination, arbitration or litigation.

84 Civil Dispute Resolution Act 2011 (Cth) s 6. For discussion of these pre-litigation requirements, see Chapter 4, 4.9 ff. 85 Returned & Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned & Services League of Australia (Queensland Branch) (No 2) [2012] FCA 1138 at [24]–[27] per Collier J: the taking of genuine steps under the Civil Dispute Resolution Act must be prior to the commencement of proceedings. In this case, Collier J held that the filing of statements after the commencement of proceedings would potentially hold up the progress of extant proceedings. 86 Civil Dispute Resolution Act 2011 (Cth) s 1(a). 87 Civil Dispute Resolution Act 2011 (Cth) s 1(c).

17.30

Page 15 of 37 Chapter 17 Without Prejudice Privilege To encourage compliance with the requirement to use genuine steps to resolve disputes, s 6(1) of the CDRA requires the party instituting proceedings to file a genuine steps statement. The statement must specify the steps taken to try to

Page 725 resolve the dispute, or the reasons why no such steps were taken.88 The respondent must also file a response to the applicant’s genuine steps statement stating whether or not the respondent agrees with the applicant’s statement, and to the extent of any disagreement, specify the respect in which the respondent disagrees.89 The court’s use of the statements is not limited to the question of costs. The court may have regard to the statements in exercising its case management powers in relation to the conduct of the proceedings.90

88 Civil Dispute Resolution Act 2011 (Cth) s 6(2). It may not be reasonable to engage in discussions with a potential respondent in circumstances, for instance, where there is urgency in commencing proceedings. 89 Civil Dispute Resolution Act 2011 (Cth) s 7. 90 Civil Dispute Resolution Act 2011 (Cth) s 11.

17.31 A question arises whether the requirement to use genuine steps to resolve a dispute, and the filing of statements specifying those steps, abrogate without prejudice privilege attached to those steps. Two matters must be borne in mind. First,a distinction must be drawn between communications that simply state a party’s case, and communications in aid of a genuine attempt at settlement. Privilege would only attach to communications in the latter class. Secondly, s 17A of the CDRA preserves any legislation or common law (including rules of equity) regarding the use, disclosure or production of documents or the admissibility of evidence. This section was inserted to preserve the operation of without prejudice privilege.91 Accordingly, a party preparing a genuine steps statement must not disclose without prejudice communications. Instead, a party may reveal the fact that there have been settlement discussions, by written correspondence or otherwise. Such matters would not be covered by without prejudice privilege.

91 Supplementary Explanatory Memorandum, Civil Dispute Resolution Bill 2011 (Cth), [11].

Communications involving strangers

17.32 In certain circumstances, the privilege may extend to communications to and from parties that are strangers to a dispute. It goes without saying that settlement discussions continue to be privileged even when they are between the disputing parties’ solicitors who are, at least in a technical sense, third parties to the dispute. At common law, the treatment of communications involving strangers has varied. In Rabin v Mendoza & Co,92 the English Court of Appeal held that a report prepared by a surveyor arising out of settlement discussions was privileged. This decision stands in contrast to the High Court’s decision in Field where,as discussed above, a doctor’s examination of a patient was held not to be privileged despite it being in connection with settlement discussions.93 Almost half a century later, the English Court of Appeal held, in Aird v Prime Meridian ,94 that a joint expert report prepared at the direction of a court was not privileged merely because the parties relied upon it during a mediation.

Page 726

Page 16 of 37 Chapter 17 Without Prejudice Privilege 92 Rabin v Mendoza & Co [1954] 1 All ER 247 (EWCA Civ). 93 See 17.18. 94 [2006] EWCA Civ 1866; [2007] CP Rep 18.

17.33 To a large extent, the issue of strangers’ involvement in settlement discussions has been resolved by s 131(1) of the Uniform Evidence Act. The section extends without prejudice privilege to communications between one or more persons in dispute and a third party provided they are made in connection with an attempt to settle a dispute.95 Accordingly, in Bailey v Beagle Management Pty Ltd ,96 an accountant’s report that had been commissioned by one of the parties in a dispute for the purpose of advancing settlement discussions was held to be privileged.

95 S Odgers, Uniform Evidence Law, 12th ed, Thomson Reuters, Sydney, 2016, [EA.131.210]. 96 [2001] FCA 185

.

A privilege against third parties

17.34 Without prejudice privilege may apply to prevent settlement discussions from being disclosed to third parties. The issue arises often in the context of multi-party litigation, where two parties to the proceedings may have negotiated a settlement,but there remains a dispute with another party. Rush & Tompkins Ltd v Greater London Council 97 provides a useful illustration of the application of the privilege. In that case, the plaintiffs engaged the first defendant to carry out construction works, and the second defendant, as a subcontractor, to carry out a portion of those works.Proceedings were commenced after the second defendant claimed that the plaintiffs were liable to the second defendant in respect of certain costs and expenses. The plaintiffs claimed that the first defendant was liable under the contract to reimburse the plaintiffs for any amounts owed by the plaintiffs to the second defendant. The proceedings between the plaintiffs and the first defendant were discontinued after the parties reached a negotiated settlement, and the proceedings against the second defendant continued. The second defendant applied for discovery of the ‘without prejudice’ communications between the plaintiffs and the first defendants that resulted in the settlement. The plaintiffs refused to produce the correspondence on account that it was protected under without prejudice privilege. The issue was resolved in the House of Lords in favour of the plaintiffs. Lord Griffiths held:98 I have come to the conclusion that the wiser course is to protect ‘without prejudice’ communications between parties to litigation from production to other parties in the same litigation. In multi-party litigation it is not an infrequent experience that one party takes up an unreasonably intransigent attitude that makes it extremely difficult to settle with him. In such circumstances it would, I think, place a serious fetter on negotiations between other parties if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. What would in fact happen would be that nothing would be put on paper but this is in itself a recipe for disaster in difficult negotiations which are far better spelt out with precision in writing.

97 [1989] AC 1280

; [1988] 3 All ER 737

.

98 [1989] AC 1280; [1988] 3 All ER 737 at 744.

Page 17 of 37 Chapter 17 Without Prejudice Privilege

17.35 The approach of the House of Lords has been adopted in Australia.99 In Village/Nine Network Restaurants & Bars Pty Ltd ,100 the Queensland Court of Appeal

Page 727 held that without prejudice privilege could be invoked to prevent documents prepared in relation to a mediation from being produced to a third party in discovery. That case concerned the rescission of a lease agreement between the plaintiff (Mercantile Mutual) and the defendant (Village/Nine). A builder had contracted with Mercantile Mutual to do work on the building in contemplation of the lease. A dispute arose between the builder and Mercantile Mutual regarding payment for the work, which was settled at mediation. Village/Nine sought to distinguish Rush & Tompkins on the basis that in this case, the dispute between Mercantile Mutual and the builder was not in the same proceedings. Such a confinement to the privilege was rejected by the court. While Pincus JA accepted that Lord Griffiths’ reference in Rush & Tompkins to ‘third parties’ was in the context of third parties in the same litigation,101 his Honour went on to say:102 But from the proposition that negotiations between A and B, to settle their part of a dispute involving A, B and C, are not discoverable at the instance of C, it does not follow that C is entitled to have discovery of the negotiations if they relate only to a dispute between A and B. All that had to be solved in Rush & Tompkins Ltd was the former problem; the latter did not arise in that case …

His Honour concluded that there was no sound basis for holding that the public interest of protecting negotiations is served by exposing those parties to the risk that what they say in private to settle their dispute ‘may be broadcast to the world at the instance of any person who can make use of it in litigation’.103

99 See, for example, Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 at 418 Competition & Consumer Commission v FFE Building Services Pty Ltd [2003] FCA 1181 100 [2001] 1 Qd R 276 at 288

per Burchett J; Australian .

per Byrne J.

101 This observation was made in Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 523 Gleeson CJ.

per

102 [2001] 1 Qd R 276 at [17] per Pincus JA. 103 [2001] 1 Qd R 276 at [20] per Pincus JA.

17.36 Both Rush & Tompkins and Village/Nine Network concerned third parties seeking access to privileged material in proceedings concerning the same subject matter as the settlement negotiation to which the privilege attached.104 However, an issue arises as to whether the privilege ought to apply where the settlement discussions the subject of the privilege are unconnected to the proceedings.

104 Yokogawa Aust Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [70]

per Duggan J.

Page 18 of 37 Chapter 17 Without Prejudice Privilege

17.37 In Yokowaga Aust Pty Ltd v Alstom Power Ltd,105 Kourakis J said, in obiter, that for the privilege to apply to proceedings concerning a third party, there must be some ‘substantial identity’ between the settlement discussions and those proceedings.106 On this view, as it has been held previously, it would be a broad expansion of the privilege if it were to apply to prevent all third parties from having access to the communication in the context of proceedings unconnected to the dispute to which the communication relates.107 Accordingly, in Verge v Devere Holdings Pty Ltd ,108 the respondent to a third party discovery application was unable to rely upon without prejudice privilege to

Page 728 prevent the production of documents recording settlement negotiations between the respondent and a third party.This was on the basis that the dispute with the third party was unrelated to the proceedings in which the discovery order was made.

105 See also Yokowaga Aust Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [140] 106 See also Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386 at [29]

per Hammerschlag J.

107 Glengallan Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233; [2001] QCA 115 at [34] 108 (2009) 258 ALR 464; [2009] FCA 832

.

per Byrne J.

.

17.38 There is an inherent tension in having settlement discussions privileged in respect of one set of proceedings, and not privileged in another. Such a limitation to the privilege does not apply, for example, in respect of legal professional privilege.As explained above, the privilege serves to encourage disputants to engage in frank discussions without fear that those discussions may later be used against them. An exception to the privilege for unrelated proceedings may only be consistent with its rationale if it is accepted that the parties engaging in settlement discussions in relation to one dispute are undeterred by the prospect of having to disclose those discussions in respect of another dispute.

17.39 To a large extent, Dowling v Ultraceuticals Pty Ltd 109 resolves this tension by considering the expectations of the parties making the without prejudice communications. In that case, Hammerschlag J held that when faced with a claim for without prejudice privilege in respect of documents concerning a previous dispute, the court must assess whether the party resisting disclosure ‘would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the latter dispute’. His Honour went on to say:110 Put another way, protection is given to induce lack of inhibition in making potentially damaging statements to facilitate dispute resolution. The policy protects those statements from disclosure in a later dispute if, fairly viewed, having regard to the subject matter of the later dispute, the party making them would be expected legitimately to have had the same inhibition.

Page 19 of 37 Chapter 17 Without Prejudice Privilege The case concerned a subpoena requiring the production of documents prepared for the purpose of settling a prior dispute between the subpoenaed party and the plaintiff that were said to be relevant to a cross-claim brought by the defendant against the plaintiff. The court was satisfied that the subject matter of the previous dispute was sufficiently different to the present proceedings, such that the parties to without prejudice communication did not have a legitimate expectation that the privilege would apply in respect of the present proceedings.

109 [2016] NSWSC 386 at [37]

.

110 [2016] NSWSC 386 at [38].

Invoking ‘without prejudice’ protection

17.40 The privilege is commonly invoked by one party indicating expressly that its communication is ‘without prejudice’. However, to benefit from ‘without prejudice’ protection, it is not necessary for the parties to form an express agreement to negotiate on a ‘without prejudice’ basis.111 The protection turns not so much on the express words used for invoking the rule but more on the nature and purpose of the communication.

Page 729 A communication made as part of a genuine attempt to arrive at an agreed solution to the dispute is automatically protected, unless the contrary is indicated.112 It follows therefore that a communication does not become privileged merely because a party has described it as being without prejudice, although it is a factor which may be relevant to determine whether the communication was made in an attempt to settle a dispute.113 Thus in Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd ,114 Hill J observed: Whether negotiations are with the concept of the privilege, that is to say, ‘without prejudice’, depends not on whether the parties have so labelled them, but upon the intentions of the parties to be ascertained from the nature of the discussions or negotiations between them. Thus, even where the parties have not expressed the communication as being ‘without prejudice’, privilege will nevertheless attach to communications between them which are genuine negotiations with the intent to compromise an existing dispute.

111 Rogers v Rogers (1964) 114 CLR 608 at 614

per McTiernan, Taylor and Owen JJ.

112 Chocoladefabriken Lindt & Sprungli AG v Nestlé Co Ltd [1978] RPC 287 Council [1989] AC 1280

; [1988]3 All ER 737 (HL)

; Rush & Tompkins Ltd v Greater London

.

113 Buckinghamshire County Council v Moran [1990] Ch 623 ; [1989] 2 All ER 225 : letter stated to be ‘without prejudice’ not protected because it merely asserted rights and argued the case. See also Parry v News Group Newspapers Ltd [1990] NLJR 1719 (EWCA Civ); Dixon Stores Group Ltd v Thames Television plc [1993] 1 All ER 349 at 351

per Drake J; CB Australia Ltd v Shepherd [2017] NSWSC 1768 at [57]

114 (1990) 27 FCR 86 at 89–90

per Parker J.

.

17.41 By way of illustration, in Smith v Gould ,115 a solicitor wrote a series of letters, each marked ‘without prejudice’, to his client’s bank regarding debts apparently owed by the client to the bank. The solicitor requested that the bank

Page 20 of 37 Chapter 17 Without Prejudice Privilege accept a lesser sum to discharge the debt on the basis that the client had limited financial capacity to repay the debt. At trial, Dixon J overruled an objection to the tender of the letters based on without prejudice privilege. His Honour found the letters had not been labelled properly because they were not in connection with the settlement of a dispute between the bank and the client. There was no dispute about liability and therefore the request for the bank to accept a lesser sum was not in connection with an offer to settle a dispute.116

115 [2012] VSC 210

.

116 [2012] VSC 210 at [21].

17.42 The term ‘without prejudice’ is used frequently by solicitors in circumstances which differ from attempts to negotiate a settlement. For example, a solicitor may state that his or her client is taking a course of action without prejudice to its rights. This only indicates that the client should not be taken to have waived any rights or to have made an election, not that the communication should be the subject of any privilege.

17.43 Engaging in ‘without prejudice’ negotiations is voluntary.117 A party is perfectly free to communicate an open offer of settlement, which will be admissible in evidence and will not be subject to the privilege.118 By contrast, a response to a without

Page 730 prejudice communication will also be treated as being without prejudice whether or not expressed as being without prejudice.119 If a defendant that has received a without prejudice communication from the plaintiff wishes to change the nature of its communications, it must notify the plaintiff that all future communications between them will be open and useable by both parties in the proceedings.120 However, a refusal to negotiate on a ‘without prejudice’ basis and an insistence on open negotiations could well be regarded by the court as uncooperative conduct and may attract the court’s disapproval and even sanctions,such as a disadvantageous treatment in costs.

117 Subject perhaps only to an order of a court referring a matter to an alternative dispute resolution process. 118 Dixons Stores Group Ltd v Thames Television plc [1993] 1 All ER 349 119 Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169 at 174

. per Sholl J.

120 Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd [1992] 4 All ER 942; [1992] 1 WLR 820

.

Waiver

17.44 The protection of without prejudice privilege belongs to both parties who can agree to waive it and place their communications before the court.121 Where parties participate in settlement negotiations, the privilege belongs to all of them. A waiver of the privilege must therefore be consensual.122 Once the parties have accepted the restraint of the privilege, they can only escape it by agreement. Therefore, a party cannot unilaterally decide to waive the rule’s protection and use in evidence communications made to it under ‘without prejudice’ cover. A plaintiff that believes

Page 21 of 37 Chapter 17 Without Prejudice Privilege that it has learned something useful during settlement negotiations cannot turn around and say that it now waives its own protection and that it is therefore free to rely in evidence on the defendant’s statements.

121 Walker v Wilsher (1889) 23 QBD 335 ; Re Turf Enterprises Pty Ltd [1975] Qd R 266 ; Somatra Ltd v Sinclair Roche & Temperley [2000] 1 Lloyd’s Rep 311; approved on appeal in this regard: Somatra Ltd v Sinclair Roche & Temperley (No 1) [2000] 1 WLR 2453 Development Pty Ltd [2005] NSWSC 501

; [2000] 2 Lloyd’s Rep 673 (EWCA Civ)

; Oliver v Lake Side Resort

.

122 Re Turf Enterprises Pty Ltd [1975] Qd R 266 at 267 [2003] EWCA Civ 1630; [2004] 1 All ER 1125

per Dunn J; Savings & Investment Bank Ltd (in liq) v Fincken

; Brunel University v Vaseghi [2007] EWCA Civ 482.

17.45 On the issue of waiver, assistance may be drawn from the principles relating to waiver of legal professional privilege.123 However, care needs to be exercised in applying such principles as the privileges are intended to protect different underlying public interests.124 Furthermore, the duality of without prejudice privilege (that is, that the privilege belongs to both parties, rather than to one) means that principles of waiver of legal professional privilege are not entirely transferable.

123 See Chapter 16, 16.97 ff in relation to waiver of legal professional privilege. 124 Lexcray Pty Ltd v Northern Territory (2015) 292 FLR 447; [2015] NTSC 11 at [56]

per Kelly J.

17.46 To be effective, a waiver must be by all those participating in settlement discussions, but it need not be express or even agreed in advance by all parties. It is enough that both parties have by their conduct shown willingness to allow the materials to be used or disclosed in litigation.125 Thus, where one party has relied on

Page 731 protected material in court the other is free to respond by relying on other protected material forming part of the same settlement negotiations.126

125 In the Marriage of Steel [1992] 107 FLR 143 (FamCA) at 150 per Nicholson CJ, Strauss and Nygh JJ. 126 Muller v Linsley & Mortimer (a firm) [1995] 03 LS Gaz R 38; [1996] PNLR 74 (EWCA Civ); Somatra Ltd v Sinclair Roche & Temperley [2000] 1 WLR 2453

; [2000] 2 Lloyd’s Rep 673

.

17.47 In the Uniform Evidence Act, waiver is captured in three exceptions to without prejudice privilege.127 Accordingly, privilege will not apply where:128

Page 22 of 37 Chapter 17 Without Prejudice Privilege (a)

the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent;

(b)

the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

(c)

the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced.

127 Cf YXW Pty Ltd v Sushi Sushi Franchising Pty Ltd [2016] VSC 538 at [15]–[21]

per Landsdowne AsJ.

128 Uniform Evidence Act s 131(2)(a)–(c). In South Australia,similar grounds appear in s 67C(2)(a)–(c) of the Evidence Act 1929 (SA).

17.48 The reference to ‘consent’ in all three paragraphs refers to the consent of all parties in the dispute.129 As a result, privilege is not waived merely because a witness on behalf of a party has disclosed a without prejudice communication in crossexamination. 130 In such a case, it cannot be said that all parties to the communication have given consent. The privilege may be waived by disclosing the communication other than by means of adducing evidence of the substance of the communication at a trial.131 Accordingly, the reference to ‘disclosure’ in paras (b) and (c) should not be confined to disclosure at a trial.132 Much like the common law position, disclosure of the fact that a settlement communication has been made is not a waiver of the privilege.133 This is because the privilege does not apply to the mere fact that there has been a without prejudice communication and, therefore, nothing which is protected by the privilege has been disclosed.

129 K & M Prodanovski Pty Ltd v Calliden Insurance Ltd [2011] NSWSC 738 at [42] 130 Oliver v Lake Side Resort Development Pty Ltd [2005] NSWSC 501 131 YXW Pty Ltd v Sushi Sushi Franchising Pty Ltd [2016] VSC 538 at [30]

per Einstein J.

. per Landsdowne AsJ.

132 However, a disclosure at a voir dire is unlikely to fall within paras (b) and (c): Kosciusko Thredbo Pty Ltd v New South Wales [2002] NSWSC 329 at [22] 133 Adlam v Noack [1999] FCA 1606

per Adams J. .

Exceptions

17.49 Without prejudice privilege is not absolute. As the privilege is grounded in public policy, it follows that the privilege is limited where public policy requires it.134 There are a number of exceptions to the privilege, in which statements made, or matters that passed, during ‘without prejudice’ negotiations are admissible in evidence. It must be stressed, however, that where an exception applies,the parties

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Page 23 of 37 Chapter 17 Without Prejudice Privilege are not completely freed from the ‘without prejudice’ constraint, but are only allowed to use privileged communications for the purpose of the exception. For example, one of the exceptions discussed below allows proof of a concluded settlement agreement. This exception permits ‘without prejudice’ communications to be adduced in evidence for establishing such an agreement. It does not allow the parties to use the communications for other purposes,unless another exception applies in relation to those other purposes. Similarly, where evidence of negotiations can be adduced for the purpose of explaining a delay in the proceedings, the prohibition on using statements for any other purpose remains unaffected. As Lord Clarke SCJ held in Oceanbulk Shipping & Trading SA v TMT Asia Ltd, because of the importance of the without prejudice rule, ‘its boundaries should not be lightly eroded’.135

134 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 135 Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2011] 1 AC 662

at 1300

per Lord Griffiths.

; [2010] UKSC 44 at [30]

.

17.50 In those jurisdictions which have enacted the Uniform Evidence Act, s 131(2) sets out 11 exceptions to the privilege, three of which (as we have seen above) are related to the concept of waiver. The remaining eight exceptions are as follows: … (d)

the communication or document included a statement to the effect that it was not to be treated as confidential; or

(e)

the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

(f)

the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue;or

(g)

evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(h)

the communication or document is relevant to determining liability for costs; or

(i)

making the communication, or preparing the document, affects a right of a person; or

(j)

the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k)

one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

‘Open offers’ and communications not made in confidence

17.51 The privilege will not attach to a communication which includes a statement to the effect that the communication is not to be treated as confidential.136 A clear example of this is an ‘open offer’ made by one party to another.137 However, if an

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Page 24 of 37 Chapter 17 Without Prejudice Privilege ‘open offer’ is repeated in a ‘without prejudice’ communication, the communication in which the latter offer is made is protected by the privilege.138

136 Uniform Evidence Act s 131(2)(d); Evidence Act 1929 (SA) s 67C(2)(d) . 137 Owners of Strata Plan 64622 v Australand Corporation Pty Ltd [2009] NSWSC 614 138 Apotex Pty Ltd v Les Laboratoires Servier (No 5) [2011] FCA 1282 disclosed under s 131(2)(b): at [37].

.

. Furthermore, the offer is not taken to have been

Enforcement, proof of an agreed settlement, and statements in aid of interpretation

17.52 Without prejudice communications are admissible to prove the conclusion of a settlement agreement.139 The agreement may come about by as a result of a without prejudice offer made by one party, and accepted by the other party. In Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd ,140 Williams J described the position as follows: Where an offer is made without prejudice but is subsequently accepted, a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.

139 Bentley v Nelson [1963] WAR 89

; Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201

Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44; [2010] 4 All ER 1011 at [30] 140 (1957) 98 CLR 93 at 118

;

ff.

per Williams J.

17.53 It may be said that this is not a true exception to the privilege, since the very existence of the rule is intended to encourage such agreements, so that proof of a compromise is consistent with the aim of the rule. Indeed, in Tomlin v Standard Telephones and Cables Ltd,141 Dankwerts LJ held that it would be impossible to determine whether any agreement has been made between disputing parties without having looked at the without prejudice correspondence in which the terms of that agreement are recorded. The exception does not mean that the privilege is entirely abrogated once a settlement has been concluded.142 Accordingly, ‘admissions of fact, tentative proposals and offers to compromise’ made during the course of settlement discussions, whether written or oral, continue to be privileged.143

141 Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201 at 203 142 Langford v Cleary (No 2) (1998) 8 Tas R 52 at 62

.

per Slicer J.

143 First Capital Partners v Sylvatech (2004) 186 FLR 266; [2004] NSWSC 846 at [35]

per Campbell J.

Page 25 of 37 Chapter 17 Without Prejudice Privilege

17.54 Section 131(2)(f) of the Uniform Evidence Act reflects the common law position that a without prejudice communication can be adduced into evidence where the proceedings are for the purpose of enforcing the agreement, or the making of the agreement is in issue.144

144 See also Evidence Act 1929 (SA) s 67C(2)(e).

17.55 The privilege does not apply in relation to proceedings where a party to the agreement is seeking a declaration that an agreement is void ab initio or an order to have the agreement set aside.145 Similarly, it does not apply where a party is seeking an order for rectification.146 In such cases, the proceedings do not concern the enforcement

Page 734 of that agreement, nor is the making of it put into issue. However, in Pihigia Pty Ltd v Roche ,147 evidence of settlement discussions was admitted in support of an application to set aside a settlement agreement on the basis of the agreement being procured by misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law, Sch 2 of the Competition and Consumer Act 2010 (Cth)). The proceedings were characterised as being for the enforcement of the settlement agreement when the respondent brought a cross-claim, in the same set of proceedings, to enforce the settlement agreement.148

145 Asciak v Australian Secured & Managed Pty Ltd [2008] FCA 753 at [31]

per Goldberg J: a party seeking to have

consent orders set aside; see also Fermiscan Ltd v James [2009] NSWSC 462 240 at [120]

146 Humphreys v Humphreys [2016] VSC 637 at [67] 147 [2011] FCA 240

; Pihigia Pty Ltd v Roche [2011]FCA

per Lander J. per Ginnane J.

.

148 [2011] FCA 240 at [120]–[125] per Lander J.

17.56 It is clear from the foregoing that the exception to the privilege will allow a party to disclose the terms of a settlement to a court for the purpose of enforcing the agreement. An issue arises, however, as to whether the exception allows the disclosure of anterior discussions and documents in order to construe the terms of settlement. To understand this issue, it is necessary to consider briefly the law on the construction of a contract. As a general rule, extrinsic evidence to contradict,vary, add to or subtract from the terms of a written contract is inadmissible.149 The same rule applies when construing the terms of a settlement agreement. However, courts may receive evidence of the surrounding circumstances as an aid to construction. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales ,150 it was held that such evidence could be received to construe a term that was ambiguous or susceptible of more than one meaning. Further, in Pacific Carriers Ltd v BNP Paribas ,151 the High Court held that the terms of a contract are to be construed by what a reasonable person in the position of the parties would have understood them to mean. This requires consideration of not only the text of the documents but of the surrounding circumstances, including the purpose and object of the transaction.152 According to this approach to construction, it

Page 26 of 37 Chapter 17 Without Prejudice Privilege would seem that the exception to without prejudice privilege will apply to anterior settlement documents and discussions where such documents provide context to the terms used in a settlement agreement.

149 Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406 at 413–14 per McPherson J (QSC(FC)); Esso Australia Ltd v Australian Petroleum Agents’ & Distributors’ Association [1993] 3 VR 642 (VSC) at 645 per Hayne J; Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 (NSWCA) at 299 per Santow J. 150 (1982) 149 CLR 337 at 352

per Mason J.

151 (2004) 218 CLR 451; [2004] HCA 35 at [22] 989

at 995–6

. See also Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR

per Lord Wilberforce, applied in Codelfa Construction Pty Ltd v State Rail Authority of New

South Wales (1982) 149 CLR 337 at 350

per Mason J; Investors Compensation Scheme Ltd v West Bromwich

Building Society [1997] UKHL 28; [1998] 1 WLR 896

at 912

per Lord Hoffmann, cited with approval in

Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 at [11] Hayne JJ.

per Gleeson CJ, Gummow and

152 (2004) 218 CLR 451; [2004] HCA 35 at [22]; Woodside Energy Ltd v Electricity Generation Corp; Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]

per French CJ, Hayne, Crennan and

Kiefel JJ; Essotec Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 at [16] and Gordon JJ.

per Kiefel, Bell

17.57 The issue of admissibility of without prejudice communications to construe a settlement agreement was considered by the Supreme Court of the United Kingdom

Page 735 in Oceanbulk Shipping and Trading SA v TMT Asia Ltd .153 In that case, the parties had entered into a series of forward freight agreements, but the appellant failed to pay sums of money owing under those agreements. The parties subsequently entered into without prejudice settlement discussions resulting in a settlement agreement. The respondent later brought a claim for damages alleging that the appellant breached the settlement agreement. In its defence, the appellant sought to rely upon statements made during the settlement discussions to aid the interpretation of the relevant clause of the agreement. The respondent contended that the statements were excluded under the without prejudice rule. The statements were found to be admissible despite the privilege. The court held (consistent with the position under Australian law), that the words of a contract must be given the meaning that ‘a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’.154 Lord Clarke SCJ explained: … I see no reason why the ordinary principles governing the interpretation of a settlement agreement should be any different regardless of whether the negotiations which led to it were without prejudice. The language should be construed in the same way …, namely what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. That background knowledge may well include objective facts communicated by one party to the other in the course of the negotiations. As I see it, the process of interpretation should in principle be the same, whether the negotiations were without prejudice or not. In both cases the evidence is admitted in order to enable the court to make an objective assessment of the parties’ intentions.155

Page 27 of 37 Chapter 17 Without Prejudice Privilege 153 [2010] UKSC 44; [2010] 4 All ER 1011

.

154 Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101

at [14]

per Lord Hoffmann.

155 [2010] UKSC 44; [2010] 4 All ER 1011 at [40].

17.58 It makes sense, all things being equal, for courts to use the same method of construction to an agreement irrespective of whether the agreement has been the result of a dispute. However, consistency, of itself, is not a sufficient justification to disturb the effect of without prejudice privilege, as the same can be said about other aspects of judicial decision-making. Were it the case, it would be open to conclude that the evidentiary process should be employed in the ascertainment of truth regardless of whether the evidence is found inside or outside settlement discussions. Instead, the critical question must be whether allowing extrinsic evidence of settlement discussions to aid the interpretation of settlement agreements promotes the public interest in the settlement of disputes. Lord Clarke’s view in Oceanbulk was that ‘if a party to negotiations knows that, in the event of a dispute about what a settlement contract means, objective facts which emerge during negotiations will be admitted in order to assist the court to interpret the agreement in accordance with the parties’ true intentions, settlement is likely to be encouraged not discouraged’.156 If this is correct, then the Supreme Court’s ruling is well founded. It is, however, difficult to assess the Supreme Court’s projection.

Page 736

156 [2010] UKSC 44; [2010] 4 All ER 1011 at [41].

Preventing the court from being misled

17.59 A party may adduce evidence of a without prejudice communication to prevent the court from being misled.157 In Pitts v Adney ,158 Walsh J said of the rule concerning without prejudice privilege: But it is, after all, a rule based upon public policy. It cannot be permitted to put a party into the position of being able to cause a Court to be deceived as to the facts, by shutting out evidence which would rebut inferences upon which that party seeks to rely. In McFadden v Snow ,159 evidence was given on behalf of one party that no reply had been received to a letter. Thus it was sought to establish an admission by silence as to a relevant fact. Kinsella J admitted a letter headed ‘without prejudice’ tendered in disproof of that evidence. He said ‘The privilege that may arise from the cloak of “without prejudice” must not be abused for the purpose of misleading the court’. With respect, I state my emphatic agreement with that observation.

157 Uniform Evidence Act s 131(2)(g); Verge v Devere Holdings Pty Ltd (2009) 258 ALR 464; [2009] FCA 832 at [42] 158 (1961) 78 WN (NSW) 886 at 889 159 (1951) 69 WN (NSW) 8.

.

.

Page 28 of 37 Chapter 17 Without Prejudice Privilege

17.60 For the exception to apply, it is not enough that the without prejudice communication sought to be adduced contradicts or qualifies evidence that has already been adduced.160 Such a broad interpretation to the exception would materially usurp the effectiveness of the privilege in encouraging parties to engage in frank settlement discussions. Rather, the critical issue is whether evidence already adduced is likely to mislead the court if the without prejudice communication is not admitted.161

160 Brown v Commissioner of Taxation (2001) 187 ALR 714; [2001] FCA 596 at [184][185] Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756

per Emmett J; Bloss

.

161 Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) (2008) 247 ALR 781; [2008] FCA 701 at [76]

per Tamberlin J. See also Humphreys v Humphreys [2016] VSC 637 at [68]–[71]

per Ginnane J.

17.61 An illustration of the exception can be found in Galafassi v Kelly .162 In that case, the vendor of a residential property commenced proceedings in respect of the repudiation of a sale contract after the purchasers had failed to complete the sale. After initially seeking a decree of specific performance for the completion of the sale, the purchasers sent two emails to the vendor to the effect that there was no way they could comply with a specific performance decree to complete the sale of the property due to their financial circumstances. The vendor considered the emails to be evidence of repudiatory conduct by the purchasers, and subsequently served on them a notice purporting to accept their repudiation and terminating the contract. The purchasers objected to the tendering of the two emails on the basis that they were subject to without prejudice privilege.

162 [2014] NSWCA 190

.

17.62 While the New South Wales Court of Appeal found that the emails were not protected by the without prejudice privilege,163 the court considered that the exception

Page 737 in s 131(2)(g) would apply to the emails in any event. Gleeson JA held that the emails were evidence of the purchasers’ repudiatory conduct after the commencement of proceedings.His Honour said:164 The critical issue in the proceedings was whether the Purchasers repudiated the Contract by evincing an intention not to perform, or by reason of factual inability to perform. The Vendor’s notice of termination … only relied upon the Purchasers’ declared unwillingness and inability perform prior to the institution of the proceedings. The Purchasers by their defence has put in issue the allegation that they had informed the Vendor since 30 December 2011 ‘and thereafter’ that they would not perform the Contract. Indeed the Purchasers asserted in their defence that the Vendor’s notice of termination was itself a repudiation of the Contract by the Vendor, which the Purchasers claimed they had accepted, thus bringing the Contract to an end.

Page 29 of 37 Chapter 17 Without Prejudice Privilege

163 The court found that the emails merely expressed a desire to find a way to settle the matter without publicity: see [127]– [133] per Gleeson JA (with whom Bathurst CJ and Ward JA agreed). 164 [2014] NSWCA 190 at [141] (emphasis added).

17.63 The conduct of the purchasers, by asserting that the vendor’s conduct was itself repudiatory, was an unsustainable assertion in the light of the two emails. If the evidence of the emails was not admitted, the court would have been misled as to whether there was any repudiatory conduct on the part of the purchasers after the proceedings had commenced.165 However, this does not answer the issue of whether the vendor was at liberty to rely upon the emails (which, for present purposes, were subject to without prejudice privilege) as repudiatory conduct and thereby issue an ‘open’notice of termination.

165 [2014] NSWCA 190 at [135]–[148].

Costs exception

17.64 Parties may agree to hold ‘without prejudice’ negotiations by allowing for the possibility of making reference to them in relation to costs orders.166 The device, known as ‘without prejudice save as to costs’ was first recognised in the English case of Calderbank v Calderbank167 and reaffirmed by the Court of Appeal of England and Wales in Cutts v Head,168 and by the House of Lords in Rush & Tompkins,169 as based on an express or implied agreement between the parties. Where parties have negotiated on this basis, their communications will be protected in accordance with the ‘without prejudice’ rule in all respects except in relation to the making of a costs order or in relation to the assessment of costs.170

166 See Chapter 27 in relation to the protection against costs. 167 Calderbank v Calderbank [1975] 3 All ER 333 168 Cutts v Head [1984] Ch 290

.

; [1984] 1 All ER 597

.

169 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

; [1988] 3 All ER 737

.

170 See, for example, Chrulew v Borm-Reid & Co (a firm) [1992] 1 All ER 953; [1992] 1 WLR 1176

.

17.65 The importance of this device has substantially increased under the modern rules of civil procedure because of the significance that the court now attaches to the parties’ conduct when it comes to decide what costs orders to make.171 Clearly, conduct during negotiations, the willingness of the parties to respond positively to offers of compromise, or to suggestions to engage in alternative dispute resolution,

Page 738

Page 30 of 37 Chapter 17 Without Prejudice Privilege are going to be influential in costs awards.Accordingly, allowing an exception to the without prejudice rule in relation to costs increases the incentive to settle on reasonable terms.172 In Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) ,173 Mansfield J observed: Clearly, it is in the public interest that negotiations to explore a resolution of proceedings should not be inhibited by the risk of such negotiations influencing the outcome of those primary issues. It is equally in the public interest that negotiations should be conducted genuinely and realistically. The effect of s 131(2)(h) [that is, the costs exception] is to expose that issue to inspection when costs issues only are to be resolved.

171 See Chapter 28 in relation to costs. 172 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [14] 173 (2004) 214 ALR 621 at 624; [2004] FCA 1570 Luppino.

per Santow JA.

, applied in LO v NTA [2017] NTSC 24 at [22]

per Master

17.66 Under the common law, the costs exception applies only if the parties have made the without prejudice communication on the proviso it could be tendered in relation to the issue of costs. This can be achieved by way of express stipulation or using the device ‘without prejudice save as to costs’. Without such a caveat, the without prejudice rule applies even in relation to the issue of costs.174

174 Rayner v Pethick [2006] SASC 70 at [31]–[34] [15]

per Bleby J; Maronich v Top Oak Pty Ltd (No 2) [2015] SASC 167 at

per Parker J; Porker v Richards (No 2) [2017] SASC 11 at [32]

per Blue J. See also the discussion in

Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133

.

17.67 In those jurisdictions in which the Uniform Evidence Act applies, the common law position has been modified. Section 131(2)(h) provides that a without prejudice communication may be adduced into evidence if it is relevant to the issue of costs. The significance of the statutory modification is that without prejudice communications may be admissible in relation to costs whether or not the parties had expressly reserved their right to rely on those communications on the issue of costs.175 That is, the decision on whether to admit the communication into evidence is based upon legal principle rather than some express agreement between the parties.176

175 Silver Fox Co Pty Ltd v Lenards Pty Ltd (No 3) (2004) 214 ALR 621; [2004] FCA 1570 at [34]–[36] per Mansfield J. Although see below at 17.84 ff where other legislation may prevent the admission of without prejudice communications,even in relation to costs. 176 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [16]

per Goldberg J.

Page 31 of 37 Chapter 17 Without Prejudice Privilege

17.68 The statutory form of the exception does not render admissible documents concerning the attempted resolution of the quantum of costs payable by the parties. Accordingly, evidence of discussions between parties attempting to resolve a dispute about costs are inadmissible in a hearing on the issue of costs.177

177 Lexcray Pty Ltd v Northern Territory (2015) 292 FLR 447; [2015] NTSC 11 at [18]–[23]

per Kelly J.

Without prejudice communications affecting rights

17.69 The public interest would not be served if a party could be allowed to avoid liability for an action or inaction under the veil of without prejudice privilege.

Page 739 Accordingly, under s 131(2)(i) of the Uniform Evidence Act,an exception to without prejudice privilege applies where the communication affects the rights of a person.178 While the statutory exception itself is unknown to the common law,179 it picks up exceptions which have been recognised under the common law (for example, acts of bankruptcy, which are discussed below).

178 See also Evidence Act 1929 (SA) s 67C(2)(g): the rights of a party to the dispute. 179 R J Desiatnik, Without Prejudice Privilege in Australia, LexisNexis Butterworths, Sydney, 2010, p 163.

17.70 A party making misleading or deceptive representations for the purpose of procuring a settlement cannot rely upon without prejudice privilege to shield such representations from the court.180 In such a case, the innocent party would be precluded from seeking a remedy from the court in relation to the misleading or deceptive conduct if it could not adduce evidence of the conduct during the settlement discussions. The ‘right’to which the exception applies is a right which either exists at the time of settlement or after settlement has been reached.181

180 Pihiga Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240 at [126]–[127] 181 Glass v Demarco [1999] FCA 842 at [10]

per Lander J.

per Emmett J.

Proof of bankruptcy

17.71 There is nineteenth century authority that a declaration of inability to pay made during settlement negotiations is admissible as proof of an act of bankruptcy.182 It may be reasoned that such a declaration is unprotected by the

Page 32 of 37 Chapter 17 Without Prejudice Privilege privilege, not because of an exception but because there is no underlying dispute about liability and the declaration merely indicates inability to pay.183

182 Re Deintrey; Ex parte Holt [1893] 2 QB 116 ; Best Buy Buy Co Inc v Worldwide Sales Corporation Espana SL [2011] EWCA Civ 618; [2011] Bus LR 1166 at [43]–[43]. 183 J D Heydon, Cross on Evidence, Australian ed, LexisNexis Butterworths, Sydney, [25380], referred to in Teoh v Greenway (2015) 71 MVR 271; [2015] ACTSC 133 at [12]

per Burns J.

Proof of fraud, offence, impropriety and deliberate abuse of process

17.72 ‘Without prejudice’ material is admissible in evidence if its exclusion would act as a cloak for perjury, blackmail or other clear impropriety.184 Section 131(2)(j) of the Uniform Evidence Act provides that communications made in furtherance of the commission of a fraud or an offence, or the commission of an act that renders a person liable to a civil penalty are not subject to without prejudice privilege. The fraud must be ‘actual dishonesty’.185

184 Forster v Friedland [1992] CA Transcript 1052; Finch v Wilson (8 May 1987, unreported); Hawick Jersey International v Caplan (1988) Times, 11 March. 185 Van Der Lee v New South Wales [2002] NSWCA 286 at [61]

per Hodgson JA. Cf Southern Equities Corporation Ltd

(in liq) v Arthur Anderson & Co (1997) 70 SASR 166; [1997] SASC 6712 SASC 219 at [20] improper object.

and Citicorp Aust Ltd v Cirillo [2000]

, where it was accepted that ‘fraud’ includes equitable fraud and conduct in the furtherance of an

17.73 A further exception applies under s 131(2)(k) of the Uniform Evidence Act where one of the persons in dispute (or an employee or agent of that person) knew or

Page 740 ought reasonably to have known that the communication was made in furtherance of a deliberate abuse of power.186 The reference to ‘power’ includes the power of a party to commence and pursue legal proceedings.187 The abuse must be deliberate in the sense the party must have actual knowledge that the power is being abused.188

186 Uniform Evidence Act s 131(2)(k). 187 Kang v Kwan [2001] NSWSC 698 at [37] [68]

per Santow J; Van Der Lee v New South Wales [2002] NSWCA 286 at

per Santow JA (Mason P concurring).

188 Van Der Lee v New South Wales [2002] NSWCA 286 at [58] concurring).

per Hodgson JA (Mason P and Santow JA

Page 33 of 37 Chapter 17 Without Prejudice Privilege

17.74 The veil imposed by public policy, the English Court of Appeal explained in Unilever plc v Procter & Gamble Co,189 may have to be pulled aside in cases where the protection afforded by the rule has been unequivocally abused. In that case, Unilever argued that since Procter & Gamble threatened to challenge its title to a certain patent, it was entitled to take certain proceedings citing the challenge. But the Court of Appeal held that it would be an abuse of process for Unilever to be allowed to plead anything that was said at the meeting, either as a threat or as a claim of right, because the circumstances were such that each side was entitled to expect to be able to speak freely. The court held that pleading by Unilever of the threat or claim of right did not come within any recognised exception to the privilege, and the expansion of such exceptions should not be encouraged when an important ingredient of the reforms giving rise to the overriding objective was to encourage those who were in dispute to engage in frank discussions before they resorted to litigation.

189 Unilever plc v Procter & Gamble Co [2001] 1 All ER 783; [2000] 1 WLR 2436 (CA) . In the event, however, the Court of Appeal of England and Wales declined to express a view on the validity of this exception.

17.75 However, it would appear that an expansion of the exception was made in Savings & Investment Bank Ltd (in liq) v K Fincken.190 Patten J held that the exceptions to the without prejudice rule, as summarised in Unilever plc v Proctor & Gamble Co, could be extended in appropriate cases where there was an unambiguous admission of facts followed by an equally unambiguous denial of those facts by the same party. His Lordship thought that such circumstances amounted to an abuse and constituted an unambiguous impropriety. But he stressed that ‘without prejudice’ protection will be removed only in uncomplicated cases where a party had made a clear admission of relevant facts that it subsequently chose to deny.

190 Savings & Investment Bank Ltd (in liq) v Finckent (19 February 2003, unreported (EWCA Civ)).

17.76 The exception has been enlivened in instances where a party makes a statement in settlement discussions to cover that it has sought to defraud creditors by concealing the property of a bankrupt through receipt of the property with intent to defraud.191 Such conduct is an offence under s 263(1) of the Bankruptcy Act 1966 (Cth). Furthermore, the exception was also applied in Bhagat v Global Custodians Ltd ,192 discussed at 17.24, to allow a contemptuous ‘without prejudice’ letter rendering its sender liable to a civil penalty for contempt to be admissible in evidence.193

Page 741

191 Rambaldi v Mullins (No 2) [2016] FCA 977 at [100]–[101] 192 [2002] NSWCA 160

.

193 [2002] NSWCA 160 at [33].

per Murphy J.

Page 34 of 37 Chapter 17 Without Prejudice Privilege

17.77 Caution must be exercised before the court lifts the public policy veil whenever a party argues that the opponent has engaged in conduct caught by s 131(2)(j) or (k). Allowing such arguments to succeed could rob the privilege principle of the very benefit it seeks to achieve, that is, of enabling parties to speak without fear that their statements would be held against them. In Van Der Lee ,194 Hodgson JA held that where a party is seeking to adduce without prejudice material as evidence of an abuse of process, the court may receive the evidence at a voir dire, and then if that evidence establishes an abuse of process, to rule it admissible.195

194 [2002] NSWCA 286 at [62]

.

195 Hodgson JA relied upon s 11(2) of the Uniform Evidence Act, which provides that the powers of a court with respect to abuse of process in proceedings are not affected. See also Re Mulsanne Resources Pty Ltd [2013] NSWSC 358

.

17.78 When exercising the jurisdiction to lift the veil, the court should bear in mind that it is only too easy for a dissatisfied litigant to accuse its opponent of concealment or misrepresentation during settlement discussions. If the courts readily acceded to such complaints to open up ‘without prejudice’ communications, the incentive for entering into settlement discussions could well suffer. As Hoffmann LJ observed, ‘the value of the without prejudice rule would be seriously impaired if its protection could be removed [for] anything less than unambiguous impropriety’.196 The exception should be confined to cases where there is clear evidence of abuse of a privileged occasion.197 In the case of the Uniform Evidence Act, the court may find that there has been an offence, an act giving rise to a civil penalty or an abuse of process where there are reasonable grounds for making such a conclusion.198

196 Forster v Friedland [1992] CA Transcript 1052. See also UYB Ltd v British Railways Board (2000) Times, 15 November (EWCA Civ). 197 Forster v Friedland [1992] CA Transcript 1052; Fazil-Alizadeh v Nikbin (1993) Times, 19 March. 198 Uniform Evidence Act s 131(3) and (4).

Explaining delay in the proceedings

17.79 Under the common law, evidence of negotiations could be given in order to explain delay in the proceedings or apparent laches or acquiescence by a party to such delay.199 Consistent with the general principle, which restricts exceptions to the purposes for which they exist, the court would limit reference to matters that passed during the negotiation to the bare minimum, such as showing that letters have been written on certain dates, rather than allowing disclosure of their contents.200 The Uniform Evidence Act does not include an exception in relation to the explanation of a delay in proceedings.201 However, such an exception may not be required given that evidence of the fact that parties have engaged in without prejudice discussions is not, of itself, protected under the rule regarding without prejudice privilege.

Page 742

Page 35 of 37 Chapter 17 Without Prejudice Privilege 199 Walker v Wilsher (1889) 23 QBD 335 200 Walker v Wilsher (1889) 23 QBD 335

(EWCA Civ) at 338 per Lindley LJ. .

201 Hoefler v Tomlinson (1995) 60 FCR 452 (FCA) at [14] per Spender J.

Matrimonial causes and estranged spouses

17.80 A rule analogous to the without prejudice rule has developed with respect to family disputes. The need for a special rule arose because legal proceedings in family matters are not always adversarial. This is true, in particular, of child care and protection proceedings. Persons involved in such proceedings, whether they are members of the family or a social worker, cannot be regarded as parties to a dispute, since the court is not engaged in resolving a dispute but in protecting the welfare of children.202 Furthermore, discussions held between persons concerned with the welfare of children, who may include parents, other relatives and social workers, cannot be considered as negotiations for settlement because the interests of children cannot be compromised nor can parents usually forgo parental rights. Even where family proceedings are adversarial, as may be the case in divorce proceedings concerned with the division of family property, the ‘without prejudice’ rule may not cover all aspects of the discussions between the parties, if some of their communications go beyond property matters and are concerned with family welfare or with matters of a personal kind.203

202 Re L (a Minor) (police investigation: privilege) [1997] AC 16

; [1996] 2 All ER 78 (HL)

.

203 In the Marriage of Lace (1981) FLC 91-080 (FamCA).

17.81 Since, however, promoting family conciliation is at least as important as promoting settlement in adversarial proceedings, an extended form of without prejudice has been established for such situations, whereby statements for the purpose of family conciliation may not be used in evidence. Section 10J of the Family Law Act 1975 (Cth) restricts the use of anything said or any admissions made by or in the company of a family dispute resolution practitioner conducting a family dispute resolution, and a professional to whom the family dispute resolution practitioner refers a person for medial or other professional consultation.204

204 Bolton & Bolton (2010) FMCAfam 140.

17.82 In Re D (minors) (conciliation: disclosure of information), Sir Thomas Bingham MR explained:205 Conciliation of parental or matrimonial disputes does not form part of the legal process but as a matter of practice is becoming an important and valuable tool in the procedures of many family courts. This underlines the great importance of the preservation of a cloak over all attempts at settlement of disputes over children. Non-disclosure of the contents of conciliation meetings or correspondence is a thread discernible throughout all in-court and out-of-court conciliation arrangements and proposals.

Page 36 of 37 Chapter 17 Without Prejudice Privilege

205 Re D (minors) (conciliation: disclosure of information) [1993] 2 All ER 693 at 699

.

17.83 The Master of the Rolls stressed that the courts should resist the temptation of creating exceptions to this rule, lest the privilege for conciliation would be reduced to a mere shadow. But the court did allow one exception in the interest of protecting child welfare. Evidence may be given of otherwise protected statements if, and only if, they clearly indicate that the maker has in the past caused or is likely in the future to cause serious harm to the wellbeing of a child.206

Page 743

206 Family Law Act 1975 (Cth) s 10J(2): statements made by about the risk of abuse of a child under the age of 18 years.

Court-annexed dispute resolution

17.84 A form of without prejudice privilege appears in the legislation and rules governing court-annexed dispute resolution,207 such as mediation. For example, s 30(4) of the Civil Procedure Act 2005 (NSW) provides that evidence of anything said or of any admission made in a court-annexed mediation session is not admissible before any court or other body. Furthermore, any document prepared for the purpose of, or in the course of, or as a result of a mediation session is not admissible.208 The privilege applies regardless of whether the statements or documents are for the purpose of settling the dispute. The legislation assumes that the process of mediation is for that purpose.

207 for a discussion on court-annexed alternative dispute resolution, see Chapter 29, 29.51. 208 See also Federal Court of Australia Act 1976 (Cth) s 53B; Court Procedures Rules 2006 (ACT) r 1183; Supreme Court Rules (NT) r 48.13(8).

17.85 The privilege under court-annexed mediation legislation and rules may be more inflexible than its equivalent under the common law and the Uniform Evidence Act. In Azzi v Volvo Car Australia Pty Ltd (Costs) ,209 the parties participated in a court-annexed mediation. During the mediation, the defendant had made several ‘without prejudice’ offers, each of which was rejected by the plaintiff. Ultimately, the matter was determined by the court in favour of the defendant. On the issue of costs, the defendant sought to rely on its settlement offers in support of an order that the plaintiff pay the defendant’s costs on an indemnity basis. Brereton J held that the offers were inadmissible on the basis that a costs exception did not exist in relation to the court-annexed mediation privilege.210 Since the privilege was established by the Civil Procedure Act 2005 (NSW), the court was unable to apply the costs exception under s 131(2)(h) of the Uniform Evidence Act.211 In some jurisdictions, the mediator may provide a report on the mediation to the court to assist the court on the issue of costs.212

Page 37 of 37 Chapter 17 Without Prejudice Privilege

209 [2007] NSWSC 375

.

210 [2007] NSWSC 375 at [26]. 211 See also Ford Motor Company of Australia Ltd v Tallevine Pty Ltd [2017] NSWSC 1703 at [62] per Harrison J, where it was observed that the privilege attaching to court-annexed mediation under legislation does not extend beyond court-ordered mediations. 212 for example, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 50.07(4); Rules of the Supreme Court 1971 (WA) O 4A r 8(6).

17.86 The Federal Court in Winters v Fogarty 213 has questioned whether the privilege under court-annexed alternative dispute resolution legislation is absolute, such that it would preclude ‘anything at all which occurred at or in a mediation’ from being admitted. Giving a more extreme example, Bromberg J said that if that were so, the privilege would prevent a ‘curial examination’ of a threat made in a mediation to kill or the commission of a fraud.214

213 [2017] FCA 51

. The case concerned s 53B of the Federal Court of Australia Act 1976 (Cth).

214 [2017] FCA 51 at [141]–[142]. As discussed above, an exception exists in s 131(2)(j) of the Uniform Evidence Act in relation to the commission of offences and fraud. Note though that by operation of ss 30(5) and 31(c) of the Civil Procedure Act 2005 (NSW), the privilege does not prevent disclosure of information in a mediation being disclosed if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property.

End of Document

Chapter 19 Public Interest Immunity Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 19 — Public Interest Immunity

Chapter 19 Public Interest Immunity Page 761 [Current to May 2018]

The general rule

19.1 The court has general jurisdiction to allow parties, non-parties and witnesses to withhold disclosure of documents and other information from the parties and from the court, if it considers that such disclosure would be harmful to the public interest, and crucially, that such harm would outweigh the harm to the administration of justice that would result from non-disclosure of the material in the proceedings (or extra-curial context) in which the information is sought. This weighing is known as the balancing exercise.1 A claim for public interest immunity (PII) may be made in respect of a particular document or particular piece of information, on the grounds that the revelation of its contents would be injurious to the public interest. Alternatively, a claim may be made in respect of a whole class of documents or information on the grounds that breaching the confidentiality of the class would be injurious to the public interest. A PII claim may be made not only in order to withhold inspection of documents the existence of which has been disclosed in an affidavit of discovery, or which are otherwise known to exist, but may also be made in order to withhold disclosure of the very existence of documents from a party to legal proceedings. The rule is not limited to the admission of evidence at trial but may arise during interlocutory processes including subpoenas,2 as well as extra-curial proceedings such as indigenous land claims,3 development applications,4 or professional disciplinary proceedings.5 Similarly, the immunity applies to oral evidence and not just documents.6 The immunity is not limited to documents held by public bodies or even created by public bodies.7

Page 762

1

Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 at 592; 6 ALR 433 at 442 ; R v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274 ; Evidence Act 1995 (Cth) s 130; Evidence Act 2011 (ACT) s 130; Evidence Act 1995 (NSW) s 130; Evidence(National Uniform Legislation) Act 2011 (NT) s 130; Evidence Act 2001 (Tas) s 130; Evidence Act 2008 (Vic) s 130.

2

Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at 417

3

Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104 (FC).

4

Western Australian Museum v Information Cmr (1994) 12 WAR 417

5

Law Institute of Victoria Ltd v DCT (2009) 224 FLR 37

6

Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178 at 185

.

.

Airlines Commission v Commonwealth (1975)132 CLR 582 7

(ACT SC).

; Australian National

.

Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582 at 591

per Mason J.

Page 2 of 29 Chapter 19 Public Interest Immunity

19.2 It must be stressed at the outset that a question of PII can arise only once the party seeking to obtain disclosure of a document, or seeking production of documents or information from non-parties, has established its right to obtain the documents or information under the applicable disclosure process.8 In the context of litigation the first question to be decided is whether the sought after document or information is necessary for a fair determination of the dispute. Disclosure is normally necessary in this sense if the litigant seeking disclosure would suffer a litigious disadvantage from the withholding of the document or information in question. If the party seeking disclosure would suffer no litigious disadvantage by not seeing the material and could gain no litigious advantage by seeing it, the court must conclude that disclosure is not necessary. If the court decides that production is necessary, it must then deal with the objection to disclosure on grounds of PII.9

8

In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 (CCA), Hunt CJ said, at 681, there was a ‘need for the party seeking access to documents to demonstrate a legitimate forensic purpose before any balancing exercise between the conflicting aspects of the public interest can be undertaken’.

9

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 (CCA).

Class claims

19.3 As mentioned, PII may cover not just particular documents but entire classes of documents regardless of the contents of any single document within the category.10 For example, a class claim might be made in respect of all documents containing communications relating to the making of government policy or in respect of oral communications between ministers concerning these matters. Such a claim would be founded on the argument that disclosure of any document or communication belonging to the class would undermine the confidentiality of the class as a whole and would impede the government’s ability to formulate policy.11 Because class claims depend upon the nature of the category, rather than the contents of the particular document, and because a PII claim can have a devastating effect on the substantive rights of litigants, the courts do not readily recognise class claims. On the other hand, it is not the case that class claims are only limited to Cabinet documents.12

10 The distinction is discussed in S B McNicol, Law of Privilege, Law Book Co, Sydney, 1992, p 384. 11 It may be that no relevant document even exists within the class: Alister v R (1983) 154 CLR 404 12 Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 260 ALR 538 at [13]–[20] Wales (No 3) [2009]262 ALR 27 at [28].

.

; Sportsbet Pty Ltd v New South

19.4 The High Court accepted in Sankey v Whitlam that there can be class claims but cautioned against a blanket approach to ‘state papers’. This is because state papers do not form a homogeneous class,which must be treated alike. The subject matter with which the papers deal may well be of great importance, but all the circumstances have to be considered in deciding whether the papers in question are entitled to be withheld from production, no matter what they individually contain. For example, in some cases a legitimate need for secrecy will have ceased to exist relatively quickly, such as when proposals have passed into legislation. In other cases, it may be

Page 3 of 29 Chapter 19 Public Interest Immunity

Page 763 necessary to maintain secrecy for many years, for example to protect national security or diplomatic relations.13 Although there is a distinction between claiming PII on the grounds that the disclosure of the contents of particular documents would be injurious to the public interest, on the one hand, and claiming PII for an entire class regardless of the contents of particular documents on the other hand, it is not of great practical importance. This is because in either case the court must have regard to the countervailing interest of the administration of justice, which necessarily involves an assessment of the consequence that withholding particular documents would have on the fairness of the trial.14

13 Sankey v Whitlam (1978) 142 CLR 1 at 42

.

14 Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616; [1993] HCA 24 of Australia (No 3) (Cabinet document: further evidence ruling) [2016] VSC 438

; Kamasaee v Commonwealth

.

The balancing exercise

19.5 The basic approach to be adopted by the court to PII claims was laid down in Sankey v Whitlam, in which the High Court endorsed the reasoning of the House of Lords in Conway v Rimmer.15 A PII claim will be made out where the public interest which requires that the document should not be produced outweighs the public interest that a court of justice should not be denied access to relevant evidence.16 Three cardinal principles were established in Conway v Rimmer.17 First, the responsibility for deciding whether evidence should be withheld from parties to legal proceedings or from the courts rests with the court and not government ministers. It is for the court to determine whether the public interest justifies the suppression of relevant evidence.

15 Sankey v Whitlam (1978) 142 CLR 1 at 38,58 16 Sankey v Whitlam (1978) 142 CLR 1 17 Conway v Rimmer [1968] AC 910 [1980] AC 1090 2 All ER 594

.

. ; [1968] 1 All ER 874

; [1979] 3 All ER 700

. See also Burmah Oil Co Ltd v Bank of England and A-G

; Evans v Chief Constable of Surrey Constabulary (A-G intervening) [1989]

.

19.6 Secondly, when dealing with a PII claim the court must take into account all the relevant factors. On the one hand, it must consider the harm that would be done to the relevant public interest from the disclosure of the documents or information in question. On the other hand, it must take into account the public interest in seeing that the administration of justice should not be frustrated by the suppression of relevant evidence that might contribute to the ascertainment of truth. On this side of the scales, the court must consider the likely effect that the absence of the evidence might have on the ability of the party seeking disclosure to establish its case.

19.7

Page 4 of 29 Chapter 19 Public Interest Immunity Accordingly, a court faced with a PII claim has to carry out a balancing exercise, weighing the competing interests against each other. It will allow documents or information to be withheld only if the public interest in suppressing the material in question outweighs the interests of the administration of justice and the interests of the individual litigant seeking disclosure. Given that the effect of withholding the evidence on the outcome of the particular case is a relevant consideration in the balancing exercise, the outcome of the exercise will depend on the facts of the individual case. A balancing exercise must therefore be carried out in each and every case, regardless of

Page 764 whether the claim is a contents claim or a class claim.18 Precedent may help the court identify the relevant public interest, but the final decision must turn on balancing all the considerations pertinent to the particular case.

18 R v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274

at 281

,299

.

19.8 The third principle is that the court may undertake a private inspection of materials for which immunity has been claimed if it considers it necessary in order to determine the validity of a PII claim or in order to decide the outcome of the balancing process. The procedure for claiming and reviewing claims is set out below.

Elements of the balancing exercise

19.9 The balancing exercise involves a number of distinct questions, each of which must be approached with care, although it is possible to split up or combine these questions in different ways.19

19 J D Heydon, Cross on Evidence, 9th ed, LexisNexis Butterworths, Sydney, 2013, [27160].

Identification of the protected interest

19.10 The first question to be addressed by the court is whether there is a recognisable public interest to be protected. A wide variety of interests have been recognised as qualifying for protection at common law. Prominent amongst them is the protection of national security, especially these days when security agencies are locked in a seemingly endless war with ever-changing opponents who are, or are suspected of, engaging in acts of terrorism. The real issue in applications for PII on grounds of national security is whether disclosure of the information would actually prejudice national security. The category of protecting national security does not extend to protecting public peace, order and safety; however, there is a recognised category for prison security information which is ‘current and highly sensitive’.20

20 Victoria v Brazel (2008) 19 VR 553; ; [2008] VSCA 37 at [26]–[27]

.

Page 5 of 29 Chapter 19 Public Interest Immunity

19.11 Most applications for PII made on behalf of the state are not designed to protect the state from foreign or domestic enemies, but concern the day-to-day functioning of government or law enforcement. Here too, the relevant interests are recognised as potentially giving rise to a PII claim, but a court is much more likely to scrutinise whether such an interest would be harmed by the disclosure of information, and whether the harm caused to such interests by disclosure would be outweighed by the harm to the administration of justice if the relevant evidence were suppressed. Assertions that disclosure would harm the functioning of government to such an extent that it would outweigh the harm done to the administration of justice if the evidence was withheld have not been looked upon with much favour by the courts.21 In Norwich Pharmacal Co v Customs and Excise Cmrs,22 the plaintiffs sought disclosure from Customs authorities of information that would reveal the names of unlicensed

Page 765 importers of a patented drug, of which they were sole licensees in the United Kingdom. The Customs and Excise Commissioners, who acquired the information in the course of their statutory duties, regarded themselves as bound not to disclose it and made a claim for PII. Rejecting the claim, the House of Lords ruled that it could not be regarded as inimical either to the interests of the persons concerned, or to the proper administration of the Customs service, that the names of wrongdoers should be revealed.23

21 See, for example, Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90; 71 ALR 109

; Woollahra Municipal Council v Westpac Banking Corp (1994) 33 NSWLR 529 at 544

Trust Co Ltd (in liq) v Deloitte Haskins & Sells (a firm) [1996] 4 All ER 403; [1997] 1 WLR 257 Bookbinder v Tebbitt (No 2) [1992] 1 WLR 217

(CA)

. Cf

.

22 Norwich Pharmacal Co v Customs and Excise Cmrs [1974] AC 133

; [1973] 2 All ER 943

.

23 Cf Alfred Crompton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405 1169

; Wallace Smith

; [1973] 2 All ER

.

19.12 Similarly, the courts have been sceptical of public interest claims based on the need for confidentiality in communications between the public and government agencies. One such category of cases concerns communications between members of the public and public bodies. To what extent would the public interest be injured if those supplying information to public bodies may later have their identities or the contents of their communications disclosed? The authorities on this point are mixed.The House of Lords has rejected any general principle that the courts will withhold disclosure on the grounds of confidentiality alone, and even treated with suspicion the claim of a department that disclosure would necessarily impair candour between an honest member of the public and public officials.24 On the other hand, courts have said where a communication with a government agency is made on the basis of confidence, the informant is entitled to expect that their confidence will be respected but there must be clear evidence that informants believed their information would be kept confidential.25 In the case of Cadbury Schweppes Pty Ltd v Amcor Ltd, the Federal Court held that the Australian Competition and Consumer Commission (ACCC) had not established a public interest in protecting the confidentiality of documents prepared in the course of competition law enforcement proceedings from use in subsequent private litigation. In that case, the ACCC had claimed PII over witness proofs taken from whistleblowers as part of enforcement action over an alleged cardboard box price-fixing cartel, to prevent the documents from being disclosed in follow-on litigation for damages brought by alleged victims of the cartel. Gordon J held that there was no recognisable public interest where there was no evidence that independent witnesses either sought or could reasonably have expected that information they provided to the ACCC was or would remain confidential, and where there is no evidence that either those witnesses or others similarly situated have been or would be dissuaded from coming forward without confidentiality. The judge went on to dismiss any suggestion that the need to protect law enforcement agencies’ ‘work product’ could

Page 6 of 29 Chapter 19 Public Interest Immunity constitute an independent public interest to which a claim of PII would attach: ‘the desire of a public regulator to prevent private litigants from relying on its “work product” fails, as a matter of law, to present any cognizable public interest, much less a real one.’ Only if work product fell within the recognised ambit of legal professional privilege could it qualify for protection on that ground alone.26

Page 766

24 Alfred Compton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405

.

25 Kanthal Australia Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 FCR 90

; Lord v Comr of

Australian Federal Police (1997) 74 FCR 61 at 97–8

.

26 Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 at [35]

.

19.13 There are a series of cases recognising an immunity, in civil proceedings, against disclosure of the identities of informers who provide information for public prosecutions (generally to the police).27 The precise relationship between this immunity and PII is not clear. Although it is possible to read the cases as suggesting that this is a separate immunity, some judges have suggested the cases simply represent the application of the PII balancing exercise.28 Given a balancing exercise conducted by an independent court is crucial to the legitimacy of withholding evidence on public interest grounds, it is suggested the latter is the better view.29 Undoubtedly, the interest in protecting whistleblowers’ anonymity — without which, other would-be informers may be deterred in coming forward — is a recognisable public interest that must be weighed in the balance.30 If the rule is a specific immunity, it is limited in scope because it does not apply in criminal proceedings where it gives way to the right to fair trial.31 There is no public interest if the information is not given, expressly or by implication, on condition that the confidence is honoured and that the informer’s identity will not be disclosed.32 The rule is not confined to police organisations but extends to other public bodies such as regulators like ASIC and the ACCC.33 The motives of the informer are relevant in deciding whether there is a public interest in the non-disclosure of the information. Thus witnesses who wish to keep their identities secret in order to avoid civil or criminal proceedings in other jurisdictions are in a different position from police informers, who fear retaliation from the accused. The latter is a legitimate public interest but the former is not.

27 Marks v Beyfus (1890) 25 QBD 494

(CA); Cain v Glass (No 2) (1985) 3 NSWLR 230 at 242–3

(CA) per Priestley

JA; R v Yooyen (1991) 57 A Crim R 226 ; R v Davis (1993) 97 Cr App R 110; Jarvie v Magistrates Court (Vic) [1995]1 VR 84 (FC); R v G and B [2004] 2 Cr App R 37; Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [22]–[32]

.

28 Cain v Glass (No 2) [1985] 3 NSWLR 230 (CA) per McHugh J; Hilton v Wells (1985) 5 FCR 296 at 305 Bisaillon v Keable [1983] 2 SCR 60; (1983) 2 DLR (4th) 193. 29 Conway v Rimmer [1968] AC 910

at 942

; [1968] 1 All ER 874 at 882

.

30 Conway v Rimmer [1968] AC 910

at 942

; [1968] 1 All ER 874 at 882

.

31 D v National Society for the Prevention of Cruelty to Children [1978] AC 171

at 218

(FCA);

; [1977] 1 All ER 589 at 596

; Re Hughes [1986] 2 NZLR 129 (FC); Re Gibson (1991) 57 A Crim R 322 (QCA); R v Davis (1993)97 Cr App R 110; R v G and B [2004] 2 Cr App R 37.

Page 7 of 29 Chapter 19 Public Interest Immunity 32 Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247 [28], [31]

(CA); R v Mason (2000) 77 SASR 105; [2000] SASC 161 at [27]–

(CCA); Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 at [35]

.

33 Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; Australian Competition and Consumer Commission (ACCC) v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137; [2011] FCA 938 at [180][196]

.

19.14 Class immunities over information supplied to public bodies can produce injustice, as illustrated by the House of Lords decision in R v Chief Constable of the West Midlands Police; Ex parte Wiley.34 The issue in that case was whether evidence collected in the course of an investigation carried out under the police complaints procedure of Pt IX of the Police and Criminal Evidence Act 1984 (known as a section 49 inquiry) was entitled to class immunity in subsequent civil litigation. A line of earlier Court of Appeal decisions held that statements made in the course of section 49

Page 767 inquiries were immune from disclosure.35 Those decisions founded the immunity on the grounds that if statements made to the inquiry were subsequently disclosed in legal proceedings, witnesses would be discouraged from coming forward, which in turn would defeat the public interest in promoting the effective operation of such inquiries. But in Wiley, the House of Lords held that, on the contrary, granting class immunity to information provided to section 49 inquiries would discourage public cooperation with inquiries into complaints against the police. The court explained that if the very witnesses for whose protection and encouragement the immunity was said to exist, who were normally victims of police misconduct, were debarred from seeing relevant materials placed before the inquiry, they might prefer to withhold their cooperation altogether and may therefore be deterred from taking their grievances to the police complaints procedure. Accordingly, the House of Lords overruled the earlier authority and held that the public interest did not justify granting immunity to evidence collected by the Police Complaints Authority. As for the future, Lord Woolf emphasised that the ‘recognition of a new class-based public interest immunity requires clear and compelling evidence that it is necessary’.36

34 R v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274 35 Neilson v Laugharne [1981] QB 736 ER 617

; [1981] 1 All ER 829

.

; Makanjuola v Metropolitan Police Comr [1992] 3 All

.

36 R v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274 446

; [1994] 3 All ER 420

at 305

; [1994] 3 All ER 420 at

. The question whether the Authority’s report might be entitled to immunity was, however, left open in R v Chief

Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274 at 305–6 ; [1994] 3 All ER 420 at 446 It was held in Taylor v Anderton (Police Complaints Authority intervening) [1995] 2 All ER 420; [1995] 1 WLR 447

.

that the report was entitled to PII.

19.15 It is also important to acknowledge that protected interests are not confined to state interests. Accordingly, the operations of local authorities and charities engaged in social services may qualify for protection.37 The public interest may also extend to the cultural traditions of particular communities; hence information confidential to indigenous communities has been treated as a relevant public interest.38 On the other hand, confidentiality alone is not a protected interest that gives rise to a claim for PII for it alone will never outweigh the public interest in the

Page 8 of 29 Chapter 19 Public Interest Immunity administration of justice.39 It is only where confidentiality is required to protect some other recognisable public interest that a claim may be available.

37 D v National Society for the Prevention of Cruelty to Children [1978] AC 171

; [1977] 1 All ER 589

38 Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104; 65 ALR 247 (FC) Minister for Aboriginal and Torres Strait Islander Affairs (1994) 54 FCR 144 FCR 537; [1999] FCA 1541 at [64]

.

; Western Australia v

; Daniel v Western Australia (1999) 94

; Smith v Western Australia (2000) 98 FCR 358; [2000] FCA 526 at [15]–[17]

39 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 ; Science Research Council v Nassé [1980] AC 1028

at 1080

at 238

.

; [1977] 1 All ER 589 at 612

; [1979] 3 All ER 673 at 691

.

19.16 Ultimately, ‘the categories of public interest are not closed’40 as Lord Hailsham observed in D v National Society for the Prevention of Cruelty to Children.41 In that case, their Lordships discerned an aspect of the public interest not established by precedent and which was quite unconnected with the affairs of central government.

Page 768

40 D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171

at 230

.

41 D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171

at 230

.

Matters of state protected under the uniform evidence legislation

19.17 The uniform evidence legislation allows for the exclusion of evidence that relates to ‘matters of state’, and provides, under s 130(4),42 a non-exhaustive definition of ‘matters of state’ which includes: —

prejudice to the security, defence or international relations of Australia; or

—

prejudice to the proper functioning of Commonwealth or State Governments or damage to relations between Governments; or

—

prejudice to the prevention, investigation or prosecution of an offence or proceedings for recovery of civil penalties; or

—

disclosing, or enabling a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State.

A crucial factor in the scope of protection of matters of state under the uniform evidence legislation is that the court’s power is conditional upon a balancing exercise and is ultimately discretionary.43 Section 130(1) provides that if the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

Page 9 of 29 Chapter 19 Public Interest Immunity 42 Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence(National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 43 Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74; [2004] NSWSC 562 ; even if the public interest is against reception of the evidence, it may be received on condition it is not shown to one party.

19.18 The New South Wales Court of Appeal has held that even if disclosure of a document would prejudice matters of state as defined in s 130(4), the Act still requires the court to engage in the balancing exercise, weighing up damage to matters of state against the public interest in the due administration of justice.44 It is only where the information or document lacks materiality in that it would not assist the party seeking its disclosure does the balancing exercise not arise.45

44 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 311–12 45 Eastman v R (1997) 76 FCR 9 at 64

.

(FCAFC).

19.19 The section confirms that the court has the power to exclude evidence on its own initiative or on the application of any person (whether or not the person is a party), and states that in deciding whether to give such a direction, the court may inform itself in any way it thinks fit.46 The relevant Commonwealth provision only applies to the production of evidence in court, whereas the common law still governs the production of evidence in other areas including during discovery.47 However, amendments to the Australian Capital Territory, New South Wales, Tasmanian and Victorian Uniform Evidence Acts extends the scope of the Acts, and hence the rule, beyond the tendering of evidence to

Page 769 ‘disclosure requirements’, which includes discovery, interrogatories, notices to produce and summonses or subpoenas to produce documents or give evidence, and requests to produce documents under Pt 4.6 Div 1 of the Evidence Acts.48

46 Section 130(2) and (3). 47 Woodruff v National Crime Authority (1999) 168 ALR 585

.

48 Evidence Act 2011 (ACT) s 131A; Evidence Act 1995 (NSW) s 131A; Evidence Act 2001 (Tas) s 131A; Evidence Act 2008 (Vic) s 131A.

Likelihood of injury to the public interest

19.20 The next question that needs to be addressed in an application to withhold information on grounds of public interest is whether there is a risk to the public interest arising from disclosure. If a person making a PII claim establishes both a recognisable public interest deserving of protection, and that disclosure of the information sought would harm that public interest, then they have made out what is known as a prima facie valid PII claim. There is limited

Page 10 of 29 Chapter 19 Public Interest Immunity authority on the degree of likelihood of injury necessary for a prima facie PII claim to be made out. Several cases have suggested that only a risk of harm, and not a probability of harm, need be established, notwithstanding the fact that s 130(4) of the uniform evidence legislation refers to evidence that ‘would’ have the effect of prejudicing national security etc.49

49 The Australian Statistician v Leighton Contractors Pty Ltd (2008) 3 WAR 83 at 93; [2008] WASC 34 at [46]

;

Kamasaee v Commonwealth of Australia (No 4) (PII — sample foreign relations claims) [2016] VSC 492 at [13] ; cf Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 7) (2013) 217 FCR 1 at 23; [2013] FCA 1020 at [97] .

19.21 While the question of whether disclosure will harm the public interest is a matter that must be decided by the court, there are some categories of public interest where by virtue of the state’s position to assess the matter, and the court’s limited ability to do so, the court will give considerable, though not decisive, weight to the judgment of the Minister or public official. National security and diplomatic relations are the archetypal categories.50

50 Alister v R (1983) 154 CLR 404 FLR 139 at 149

; Alister v R (1984) 154 CLR 469; Gilligan v Nationwide News Pty Ltd (1990) 101

(ACT SC); Parkin v O’Sullivan (2009) 260 ALR 503

(No 4) (PII — sample foreign relations claims) [2016] VSC 492 at [36][37]

; Kamasaee v Commonwealth of Australia .

19.22 Where it is claimed that protection of a particular class of documents is necessary in order to avoid harm to the public interest, the fact that documents falling into that class have been disclosed in the past without ill effect would tend to show that class immunity is not really essential for protecting the public interest.51

51 R v Horseferry Road Magistrates’ Court; Ex parte Bennett (No 2) [1994] 1 All ER 289

.

19.23 In some situations, there can be disagreement as to how disclosure would be harmful to the public interest even though there is agreement that disclosure would be harmful. An example can be seen in the differing reasons given by the House of Lords and the High Court of Australia for protecting internal governmental communications. In Conway v Rimmer, Lord Reid said that ‘the most important reason’ for upholding the immunity is that disclosure would ‘create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without

Page 770

Page 11 of 29 Chapter 19 Public Interest Immunity adequate knowledge of the background and perhaps with some axe to grind’.’52 On the other hand, Gibbs CJ was quick to point out in Sankey v Whitlam that the immunity was ‘not intended to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based’ but instead ‘to protect the proper working of government’ and that ‘it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy’.53

52 Conway v Rimmer [1968] AC 910

at 952

53 Sankey v Whitlam (1978) 142 CLR 1 at 40

. .

The likelihood of harm to the party seeking disclosure and to the administration of justice

19.24 Once a prima facie valid claim for PII has been made, the court must turn to consider the relevant countervailing factors on the other side of the scales. Two factors are of relevance in judicial proceedings. The first consists of the interests of the administration of justice that all relevant evidence should be available to the court so that it may arrive at a decision which is fair and which is seen to be so. The court must therefore consider the likely effect that the absence of the evidence in question might have on the court’s facility to ascertain the true facts and on public confidence in the outcome. Closely connected with the first factor is the effect that the withholding of the evidence in question would have on the ability of the party seeking disclosure to prove its case. Both factors are case-specific. Whether the withholding of the information would undermine the court’s ability to fairly decide the issues and whether the information is necessary in order to assist a party to prove its case will depend on the circumstances of the particular case.

19.25 The court must consider whether the evidence in question is central to the issue, or whether it is so marginal as to be of little consequence; or whether there might be other sources for obtaining the same information without harm to the public interest. In short, whether the evidence is really needed to dispose fairly of the case. The effect of acceding to a PII claim must always be considered against the specific facts of the individual case and cannot be settled as a matter of precedent.

19.26 Section 130(5) of the uniform evidence legislation sets out a helpful list of non-exhaustive factors the court must take into account when conducting the balancing exercise between the public interest in the administration of justice and the public interest in protecting information or documents that relate to matters of state. These are: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding — whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

Page 771

Page 12 of 29 Chapter 19 Public Interest Immunity   (e) whether the substance of the information or document has already been published; (f)

if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant — whether the direction is to be made subject to the condition that the prosecution be stayed.

19.27 The court’s assessment of the effect that non-disclosure might have on the outcome of the case may change as the case unfolds before it. Lord Woolf observed in the Wiley case:54 The balance can, however, change and the court could take one view of where the balance lay before the trial started and a different view during the course of the trial. If the evidence given by the witness was in flat contradiction to what he had said on a previous occasion, the judge might, after inspecting the documents himself, regard the conflict as being so vital to the proper resolution of the litigation that he was required to change a ruling which was made before the terms of the witness’s evidence were known. The evidence given by the witness would have changed the balance.

54 R v Chief Constable of the West Midlands Police; Ex parte Wiley [1995] AC 274 440

at 299

; [1994] 3 All ER 420 at

.

The final balancing exercise

19.28 Once a prima facie case to PII has been established, and the court has assessed the harm to the administration of justice, the court must proceed to conduct the final balancing exercise. This balancing exercise is not a discretionary judgment,and hence appeals are not governed by the principles applicable to discretionary judgments.55 As the balancing exercise is always case-specific, it is not possible to use precedents to determine the answer in any individual case. Nonetheless, it is possible to identify factors deemed to be significant in the balancing exercise. The greater the relevance of the document to the proceedings, the greater the case for disclosure becomes.56 In cases where a government has the power to compel information and hence there is little risk of information drying up if the source is revealed, the court is more likely to order disclosure.57 Where information is already in the public domain, this too will weigh heavily in favour of disclosure because in such cases it is difficult to identify any interest in refusing disclosure. Where the public interest is engaged, but the information goes to matters of ‘historical interest only’, the court will be inclined towards disclosure.58 On the other hand, where a prima facie case to PII is established it will be a rare case in which the interests of the administration of justice outweigh it, unless the court considers any harm to the public interest from disclosure is limited whilst the information is of critical importance to the outcome of the proceedings. One example where the interests of the administration of justice outweighed the public interest in

Page 772 non-disclosure was in the case of Kamasaee v Commonwealth of Australia (No 5).59 Kamasaee was a class action brought on behalf of asylum seekers who were detained by the Australian Government on Manus Island, Papua New Guinea. The claim alleged false imprisonment and breaches of duty of care by the government in respect of the conditions at the Detention Centre, which caused physical and psychological harm to the detainees. The PII claim concerned a number of Cabinet documents that considered the operation of the Detention Centre. The court upheld the PII claims in respect of most documents. However, in relation to one document the court rejected the claim. The document was a spreadsheet prepared by Australian Government officials identifying where capital

Page 13 of 29 Chapter 19 Public Interest Immunity expenditure funding was needed for infrastructure at the Manus Centre. While not strictly a ‘Cabinet Document’, the court accepted the document fell within a recognised category of public interest — namely the substance of Cabinet discussions might be inferred from the document — but the court also held the document had ‘important forensic value to the plaintiff’s case’. Kamasaee successfully argued the document may highlight the extent of the infrastructure deficiencies at the Manus Centre during the period of alleged negligence. The document might also reveal the extent of Australian Government control of the Centre which was a live issue in the proceeding. Accordingly, the court ordered its disclosure.60

55 Victoria v Brazel (2008) 19 VR 553; [2008] VSCA 37 at [38][43]

.

56 Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582; 6 ALR 433

.

57 Alfred Crompton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405

at 428

; [1973] 2

; cf Norwich Pharmacal Co v Customs and Excise Cmrs [1974] AC 133

at 189

; [1973] 2

All ER 1169 at 1179 All ER 943 at 961

.

58 Sankey v Whitlam (1978) 142 CLR 1 at 41 423–4

; Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at

.

59 Kamasaee v Commonwealth of Australia (No 5) (Cabinet documents: substantive ruling) [2016] VSC 595

.

60 Kamasaee v Commonwealth of Australia (No 5) (Cabinet documents: substantive ruling) [2016] VSC 595 at [79][86] .

Procedure for claiming PII

19.29 PII claims are normally made by or on behalf of a government minister or law enforcement agency. However, PII claims may be made by any person, whether or not a party to legal proceedings. The court is entitled to raise of its own motion a public interest objection to disclosure and is required to do so if it clearly sees a possibility of injury to the public interest.61 A minister, or anyone else, who claims that evidence should be withheld on grounds of public interest must make an application to the court, stating the grounds for the claim.

61 Sankey v Whitlam (1978) 142 CLR 1 at 44,58–9

.

19.30 There are no hard and fast rules as to the manner in which a PII claim is made. A PII claim generally requires supporting evidence, usually in the form of an affidavit from a minister or senior government official who is able to speak with authority on the relevant fact and policy issues.62

62 Barton v Csidei [1979] 1 NSWLR 524 at 535

(CA); Special Minister for State v Quin (1984) 3 FCR 293 at 295

Kamasaee v Commonwealth of Australia (No 3) (Cabinet document: further evidence ruling) [2016] VSC 438

.

;

Page 14 of 29 Chapter 19 Public Interest Immunity

19.31 The affidavit should identify with precision the documents, or class of documents, for which the claim is made, and state whether the deponent has inspected the documents.63 In the leading case of Sankey v Whitlam, Mason J explained that the affidavit should identify the facts and the precise grounds for withholding the documents

Page 773 ‘so as to enable the court to evaluate the competing interests’. The deponent could not take ‘refuge in amorphous statements that non-disclosure is necessary for the proper functioning of the Executive Government and of the public service, without saying why disclosure would be detrimental to these functions, except for the reference to want of candour’.64 It is not for the deponent to opine on whether the harm done to the public interest from disclosure of the information would outweigh the harm to the administration of justice from withholding the information, as this balancing exercise is for the court to perform, and the Minister is not seized of the issues in the trial.65 There is an important difference in what the deponent must swear to in individual PII claims and class claims. In the case of particular documents, it is obviously essential that the person asserting the claim should themself have seen the documents in question. However, even where the claim is that the document belongs to a class which should be withheld, the weight to be given to the assertion by the Minister or departmental head that production would be contrary to the public interest,would be reduced if the person swearing it had not seen the document.66 Where a PII claim is made for a class of documents, the class must be sufficiently specified.67 While the courts continue to recognise class claims, the courts have stressed that those who urge privilege for classes of documents, regardless of particular contents, carry a heavy burden of proof.68 Class claims supported only by reference to promote candour in governmental communications will be rejected.69

63 Haj Ismail v Madigan (1982) 45 ALR 379 at 387

(FCA).

64 Sankey v Whitlam [1978] 142 CLR 1 at 96. See also Jaffarie v Director General of Security (2014) 313 ALR 593; [2014]FCAFC 102 at [26] per Flick and Perram JJ: the claimant ‘should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible — always also conscious of the need to not disclose the very information for which the privilege is claimed’. 65 Alister v R (1983) 154 CLR 404 at 436; 50 ALR 41 at 64 66 Sankey v Whitlam (1978) 142 CLR 1 at 44

.

67 Re Grosvenor Hotel, London [1964] Ch 464 [1964] 1 All ER 717

.

; [1964] 1 All ER 92

; Merricks v Nott-Bower [1965] 1 QB 57

;

.

68 Rogers v Home Secretary (1973) AC at 400; Sankey v Whitlam (1978) 142 CLR 1 at 63 69 Sankey v Whitlam (1978) 142 CLR 1 at 63

.

.

19.32 A PII claim may be made by a party to the proceedings or by a third party. A PII claim may be made by the person or body required to make disclosure, or by a third party with an appropriate interest in the matter. For example, a government minister may make a PII claim in order to prevent a claimant from gaining access to papers possessed by the defendant, if their disclosure would be harmful to the public interest.70 As with any form of privilege, the procedure for claiming it must balance the need to ensure sufficient particulars of the claim are given to an opponent and the court to prove that the claim is soundly made, with the need to avoid disclosure of the information the privilege is designed to protect. In D v National Society for the Prevention of Cruelty to Children, Lord Simon stated:71

Page 15 of 29 Chapter 19 Public Interest Immunity

It is a serious step to exclude evidence relevant to an issue, for it is in the public interest that the search for truth should, in general, be unfettered. Accordingly, any hindrance to

Page 774 its seeker needs to be justified by a convincing demonstration that an even higher public interest requires that only part of the truth should be told.

70 for example, Duncan v Cammell Laird [1942] AC 624

; [1942] 1 All ER 587

71 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 respectively.

. ; [1977] 1 All ER 589 at 242and 614

19.33 Where the affidavit in support of a claim for PII is inadequate, the court may ask for clarification or amplification of any matter or order that a party file further evidence in support of a claim, but this power will be exercised in a way that avoids disclosing the very information which the claim seeks to protect.72

72 Conway v Rimmer [1968] AC 910 at 971 ; [1968] 1 All ER 874 at 900 ; Attorney-General(NSW) v Stuart (1994) 34 NSWLR 667 (CCA); Kamasaee v Commonwealth of Australia (No 3) (Cabinet document: further evidence ruling) [2016] VSC 438

.

19.34 The court has the power to inspect the documents subject to a claim, and will do so in the appropriate case, but this power will not be exercised lightly or as a matter of course. There are some categories of case in which the courts have expressed a greater willingness to inspect the documents. This includes proceedings where a person stands trial for a criminal offence,73 documents recording Cabinet deliberations,74 and cases where there are doubts about the adequacy of reasons given by ministers in support of a claim.75

73 Alister v R (1983) 154 CLR 404; 50 ALR 41

; Alister v R (1984) 154 CLR 469; 51 ALR 480.

74 As stressed by the High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 75 Haj-Ismail v Madigan (1982) 45 ALR 379 at 386 105 at 114–15 (QSC).

19.35

.

(Fed C of A). See also Koowarta v Bjelke-Petersen (1988) 92 FLR

Page 16 of 29 Chapter 19 Public Interest Immunity It has been held in England that, although the court must always be vigilant to ensure that PII is raised only in appropriate circumstances and with appropriate particularity, once a potential risk to national security has been demonstrated by an appropriate certificate issued by a minister, the court should not exercise its right to inspect the documents.76 This view is problematic, because it effectively empowers ministers to decide whether disclosure should be allowed. Since the decision whether to allow the withholding of evidence is for the court, the court must always satisfy itself that the public interest outweighs the interests of the administration of justice and of the litigant in question. In many cases, the court will be able to reach a fact-based conclusion without inspection. Where this is not possible, the court, it is suggested,is duty bound to inspect the documents, unless it is prepared to state that it will tolerate inflicting an injustice on a litigant in order to protect a more important public interest.77

76 Balfour v Foreign and Commonwealth Office [1994] 2 All ER 588; [1994] 1 WLR 681

at 596

.

77 Wallace Smith Trust Co v Deloitte Haskins & Sells (a firm) [1996] 4 All ER 403; [1997] 1 WLR 257 . In that case, Neill LJ held that if a party seeking discovery shows that production of the documents may be necessary for the fair disposal of the action, an order of disclosure would normally be refused only after the court has examined the documents and considered their potential contribution to the issues in the light of the material already in the applicant’s possession. He stressed that‘… inspection is likely to be the only safe course where it seems probable that the documents contain a version of events given shortly after their occurrence and at a time when the recollection of the witness would have been fresh’.

19.36 Where the court is minded to order disclosure it would normally inspect the documents to confirm its provisional view before ordering disclosure,78 although such

Page 775 a course would not be necessary in respect of class claims where confidentiality is not claimed in respect of any individual documents.79

78 Conway v Rimmer [1968] AC 910

at 953

79 Sankey v Whitlam (1978) 142 CLR 1 at 531–2

; [1968] 1 All ER 874 at 888–9

.

.

19.37 The value of inspecting documents subject to a PII claim is obvious. Not only does it enable the court to better scrutinise the claim, it may also offer the court the chance to construct a ‘soft choice’ solution, if available to it. A ‘soft choice’ case is where there is no real conflict between upholding the administration of justice and protecting the relevant public interest which might be compromised by the disclosure of evidence. This may be because the evidence is not crucial to the outcome of the case, or if it is, it may be possible to obtain the equivalent evidence by other means which would not compromise the public interest. Sometimes the court can devise a solution that protects both the administration of justice and the public interest in non-disclosure — for example, by severing the parts of a document that need to be kept confidential from the remainder which contains relevant evidence if the redactions would not distort the document’s meaning. The court clearly has the power to adopt this course.80 On the other hand, holding an ex parte hearing to decide an application to withhold evidence that could affect the result of the case lies at the outer limits of the rule of law. The relationship between PII and procedural fairness is further examined below.81

Page 17 of 29 Chapter 19 Public Interest Immunity

80 Burmah Oil Co Ltd v Bank of England [1980] AC 1090

; [1979] 3 All ER 700

.

81 At 19.43.

19.38 The court has the power to permit cross-examination of the deponent to an affidavit in support of a PII claim. The court will exercise this power sparingly and any examination would be limited to the matters requiring clarification.82 The usual course where an affidavit in support of a claim is deficient is to direct that a further affidavit be made or to reject the claim.83

82 Re Grosvenor Hotel, London [1964] 1 Ch 464 ALR 225 (FC)

; [1963] 3 All ER 426 (CA)

; Young v Quin (1985) 4 FCR 483; 59

; Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 at 431

National Crime Authority (1999) 168 ALR 585; [1999] FCA 1689 Stuart (1994) 34 NSWLR 667 at 681 (CCA).

; Woodroffe v

(Fed C of A). See also Attorney-General (NSW) v

83 Registrar of the Workers’ Compensation Commission of NSW v FAI Insurances Ltd [1983] 3 NSWLR 362 (WCC); Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at [681]

(CCA); Kamasaee v Commonwealth of Australia

(No 3) (Cabinet document: further evidence ruling) [2016] VSC 438 at [66]

.

Waiver of a PII claim

19.39 Unlike legal professional privilege or the privilege against self-incrimination, PII is not a right possessed by a particular person or body entitling them to refuse to answer questions or provide disclosure. ‘Public interest immunity is not’, Bingham LJ pointed out, ‘a trump card vouchsafed to certain privileged players to play when and as they wish’.84 Since a minister or a private individual has no vested right or privilege to forgo, there is nothing to waive.85

Page 776

84 Makanjuola v Metropolitan Police Comr [1992] 3 All ER 617 at 623

.

85 Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 Police; Ex parte Wiley [1995] AC 274

; [1994] 3 All ER 420

; R v Chief Constable of the West Midlands

; Victoria v Seal Rocks Pty Ltd (2001) 3 VR 1 at [18]

; RP Data Ltd v Western Australian Land Information Authority (2010) 272 ALR 332 at [55][61]

.

19.40 It is therefore suggested that the concept of waiver is entirely misplaced in this context. If the court has determined, for instance, that certain documents pertaining to public administration should not be disclosed on grounds of public

Page 18 of 29 Chapter 19 Public Interest Immunity interest,a government minister is not free to disclose them, even if he or she thought that no public interest is involved. However, although a minister has nothing to waive when it comes to PII, the Minister’s opinion may strongly influence the court’s decision. It is clear that a minister’s view that the public interest will not be harmed by disclosure, or the fact that a responsible minister has failed to make a PII claim even when invited to do so, will carry a great deal of weight with the court.86 Where the executive after consideration has decided that disclosure will not harm national security, it is not open to a private litigant to attempt to establish the contrary.87

86 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505

.

87 A v Hayden (No 2) (1984) 156 CLR 532 at 549,564

.

19.41 Similarly, where third parties who supplied information to public authorities are willing for the information to be disclosed, a PII claim to protect the confidentiality of the information will be difficult to sustain. While the police may resist a request for disclosing the identity of a police informer on grounds of public interest,88 there is nothing to prevent the informer themself from revealing their identity, if they so desire.89 Although some of the cases refer to the immunity being ‘waived’ in such cases, the better view is that the informer’s willingness to have their identity revealed means there is no public interest that requires protection.90

88 Marks v Beyfus (1890) 25 QBD 494

.

89 Savage v Chief Constable of the Hampshire Constabulary [1997] 2 All ER 631; [1997] 1 WLR 1061 Lonrho plc v Fayed (No 4) [1994] 1 All ER 870

. See also

.

90 Hehir v Cmr of Police of the Metropolis [1982] 2 All ER 335 at 341; [1982] 1 WLR 715

at 723

(CA).

19.42 It follows from the above analysis that a person who is in possession of a document subject to PII is not entitled to disclose it at will. Rather, they have a duty to protect the public interest, including by application to the court if necessary.PII is not automatically lost by inadvertent disclosure.91 Finally, where a government official is in doubt as to whether the communication should be withheld from disclosure, they are entitled to submit the question to the court at the expense of the person seeking disclosure.92

91 R v G [2004] 1 WLR 2932 [2015] 1 WLR 797 (CA).

(CA); Rawlinson & Hunter Trustees SA v Director of the Serious Fraud Office (No 2)

92 Alfred Crompton Amusement Machines Ltd v Customs and Excise Cmrs (No 2) [1974] AC 405 1169

; [1973] 2 All ER

.

Public interest immunity, closed material proceedings and procedural fairness

19.43

Page 19 of 29 Chapter 19 Public Interest Immunity Both the effects of a PII claim and the procedures for determining PII claims pose challenges and dilemmas for courts whose duty it is to uphold the administration of justice and litigants’ rights to procedural fairness.

Page 777

19.44 Before examining the compatibility of PII claims and procedures with procedural fairness, it is worth considering the alternative that governments around the world, including Australian federal and state governments, have increasingly turned to as a means of protecting national security information. In closed material proceedings (CMPs), information that would compromise national security if disclosed is admitted in evidence in a secret court hearing in which the government is present, but the other party and their legal advisers are excluded. Such a onesided procedure where a party is denied access to the evidence put against them, and a court is denied the forensic benefits of the adversarial process, is antithetical to the role of the court. In the leading High Court case of Assistant Commissioner Michael James Condon v Pompano Pty Ltd, French CJ began his judgment by stating: At the heart of the common law tradition is ‘a method of administering justice’. That method requires judges who are independent of government to preside over courts held in public in which each party has a full opportunity to present its own case and to meet the case against it. Antithetical to that tradition is the idea of a court, closed to the public, in which only one party, a government party, is present, and in which the judge is required by law to hear evidence and argument which neither the other party nor its legal representatives is allowed to hear.93

Despite the eloquence of the rhetoric, the High Court of Australia, like other final appellate courts around the world, has accepted the constitutional validity of ‘closed material proceedings’.

93 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [1]

.

19.45 In Pompano, the court was asked to determine the constitutional validity of Queensland legislation, the Criminal Organisation Act 2009 (Qld) (the COA), which in an effort to disrupt and restrict the activities of criminal organisations and their associates, imposed on the Supreme Court of Queensland requirements for closed hearings and the use of secret evidence known only to the judge and the Queensland Government. Section 10(1) of the COA allowed the Supreme Court of Queensland on application of the Commissioner of Police to declare an organisation a ‘criminal organisation’. An organisation could be declared a criminal organisation on a number of grounds, including if it presented an ‘unacceptable risk to the safety, welfare or order of the community’.94 The Commissioner could in the course of an application apply to the court seeking a declaration that part of its application was supported by ‘criminal intelligence’. ‘Criminal intelligence’ is defined in s 59 of the COA: (1) Criminal intelligence is information relating to actual or suspected criminal activity, whether in the State or elsewhere, the disclosure of which could reasonably be expected to— (a) prejudice a criminal investigation; or (b) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or (c) endanger a person’s life or physical safety. (2)

Criminal intelligence may be information that the commissioner has obtained through the police service or from an external agency.

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Page 778 Sections 66 and 70 of Act required a closed criminal intelligence hearing with no notice given to respondents, but, combined with s 80, did allow a special advocate — a lawyer who was not retained by the respondents and owed no duties to them, but, as described by French CJ, acted as a ‘friend of the court’ — to attend the closed hearing and make submissions on the respondents’ behalf.95 If the court declared the information constituted ‘criminal intelligence’ then under s 78(1) of the Act, the Supreme Court was required to close part of the criminal organisation hearing when criminal intelligence was considered,excluding the respondent and their lawyers. The special advocate would be permitted to attend the substantive closed hearing.

94 Criminal Organisation Act 2009 (Qld) s 10(1)(c). 95 The formal title of the advocate was the Criminal Organisation Public Interest Monitor (the COPIM): Criminal Organisation Act 2009 (Qld) s 83.

19.46 The High Court unanimously held the legislation did not deny procedural fairness or impair the institutional integrity of the Supreme Court of Queensland as a court, and therefore did not breach Ch III of the Constitution. The court interpreted the Act to require the Commissioner to give detailed particulars of what is alleged against the respondent organisation and how the Commissioner puts the case for making a declaration.96 Key to the conclusion of Hayne, Crennan, Kiefel and Bell JJ was that any unfairness caused by closed procedures under the COA could be counteracted by the court, which in their Honours’ view ‘retain[ed] its capacity to act fairly and impartially’. For example, their Honours held that the court could give less weight to evidence that was submitted in the closed hearing: The Supreme Court would know that evidence of those assertions and allegations that constituted criminal intelligence had not been and could not be challenged directly. The Court would know that the respondent and its members could go no further than make general denials of any wrongdoing of the kind alleged. What weight to give to that evidence would be a matter for the Court to judge.97

Whether a judge has the institutional capacity to compensate for an unfair procedure is examined below.

96 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [105]

.

97 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [166]–[167]

.

19.47 It is worth considering the various reasons why such closed material procedures have, with some notable exceptions,98 survived legal challenge both in Australia and elsewhere. First, like the Supreme Court of the United Kingdom, the High Court has held that parliament can ‘validly legislate to exclude or modify the rules of procedural fairness’.99 This is despite the fact that Ch III of the Constitution, like the United States Constitution, mandates the separation of judicial power from legislative and

Page 779

Page 21 of 29 Chapter 19 Public Interest Immunity executive power, and prevents federal and state parliaments from legislating to confer powers on federal and state courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.100

98 In Wainaho v New South Wales (2011) 243 CLR 181; [2011] HCA 24 , the High Court declared that the Crimes (Criminal Organisations Control) Act 2009 (NSW) was invalid as it imposed no duty on the judge to provide reasons or grounds in making declarations under the Act. 99 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [152]

per Hayne, Crennan,

Keifel, Bell JJ, citing Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 595–6 [182]. See also The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396; [1958] HCA 6 Webb J (Taylor J agreeing); Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57 and McHugh JJ; Jarratt v Commissioner of Police (NSW) (2005)224 CLR 44 at 56 100 Kable v Director of Public Prosecutions (1996) 189 CLR 51 at 103 (2004) 223 CLR 575 at 617–19 [2013] HCA 7 at [123]

per Dixon CJ and per Mason CJ, Deane

[24]per Gleeson CJ.

per Gaudron J; Fardon v Attorney General (Qld)

[100]–[105]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd

.

19.48 A second reason for the courts upholding these closed material procedures is a disturbing reluctance by the courts to articulate the basic features that an institution must possess to be considered a court of law, or the minimal requirements of a fair procedure. In Forge v ASIC, Gummow, Hayne and Crennan JJ expressed the view that: ‘It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.’101 Similarly, in Pompano, Hayne, Crennan, Keifel and Bell JJ stated: The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed102 in the context of administrative decision-making but in terms which have more general and immediate application, ‘[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.103

101 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76

[64].

102 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14; ; [2003] HCA 6 at [37]

.

103 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [156]

.

19.49 While it is true that the concept of a fair trial process does not have a fixed and permanent content, it does not follow that there are no fundamental principles that are necessary for the process to be considered a just process. The meaning of a fair trial does have an irreducible core: the requirement of natural justice, the presence of an impartial adjudicator, and the principle of open justice (subject to limited exceptions). No one doubts the

Page 22 of 29 Chapter 19 Public Interest Immunity requirement of impartiality. Yet, the other requirements are just as irreducible. This means that all parties should have notice of a case against them and a right to be heard to put forward one’s own case and respond to the opponent’s case. All parties are also entitled to a public hearing, with some exceptions, and reasons for a court’s decision. The right to be informed of the opponent’s allegations and evidence, the right to an effective opportunity to challenge them, the right to know the reasons for the court’s decision, and the principle that trials are held in public subject to limited exceptions, are all central to the rule of law in a democratic society. Any intrusion into these core principles would invariably amount to a breach of procedural fairness.Gageler J was undoubtedly right when he said in Pompano that a court cannot deny procedural fairness to a litigant under any circumstances. Any statute that required a breach of procedural fairness would be constitutionally invalid on that ground: There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court.104

Page 780

104 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [194]

.

19.50 Gageler J upheld the validity of the Queensland legislation in Pompano but only on the basis that the Supreme Court of Queensland retained its inherent jurisdiction to stay proceedings as an abuse of process if it would cause procedural unfairness to a party.105 Significantly, Gageler J dismissed all the other safeguards put forward by the Solicitor General of Queensland on the grounds that the procedure would undermine the appearance, if not the actuality, of the institutional integrity of the court.This included a safeguard that the majority considered significant, namely the power of the court to give limited weight to evidence adduced in secret. Gageler J stated that the correct question is not whether a court reached the correct result, but whether a court followed a fair procedure. There is no meta-test for assessing the correctness or otherwise of judicial outcomes; our confidence in judicial conclusions is entirely dependent on our confidence that the procedure followed by the court is likely to lead to correct conclusions. So the real issue concerns the assumption implicit in CMPs that a court is more likely to reach the correct result if it receives evidence in secret than if it does not receive the evidence at all. Lord Kerr,in Al Rawi v Security Services, noted the fallacy in this argument: To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable.106

If, and how, the requirements of national security can be reconciled with the requirements of the administration of justice, both in the context of CMPs and PPI, is considered further below.

105 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [212] 106 Al Rawi v Security Service [2011] UKSC 34 at [93]

.

.

Page 23 of 29 Chapter 19 Public Interest Immunity

19.51 A third reason why CMP procedures have been upheld in Australia is that the more draconian versions of CMP procedures have been introduced by state parliaments. The High Court has recognised that the differences between the federal and state Constitutions mean that the functions of state courts can go beyond what is permitted by Ch III of the Australian Constitution.107

107 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [126] . It is, of course difficult to maintain this position whilst at the same time consistently rejecting the idea, as the High Court has done, that the Constitution ‘permits of different grades or qualities of justice’: Kable v Director of Public Prosecutions (1996) 189 CLR 51 at 103

per Gaudron J.

19.52 The principal federal statute permitting and regulating CMPs is the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act)as amended by the Counter Terrorism Amendment Act 2016. Part IIIA of the NSI Act deals with the protection of information whose disclosure in civil proceedings is likely to prejudice national security. The Act was introduced following a review by the Australian Law Reform Commission (the ALRC) of mechanisms which existed

Page 781 to protect national security information in court proceedings. The ALRC concluded that, consistent with Australia’s increasing concerns over international terrorism and national security, ‘Courts, tribunals and government agencies need clearer and more refined procedures to ensure the proper handling of … sensitive material.’108 In its report Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), the ALRC made 80 recommendations for reform, including the enactment of an ‘NSI Procedures Act’to deal specifically with the protection of classified and sensitive information used in court, tribunal and other proceedings.109 The National Security Information (Criminal Proceedings) Act was passed in 2004 and amended to extend to civil proceedings in 2005.110

108 D Weisbrot (ALRC President), quoted on the Australian Law Reform Commission website, ‘ALRC media release: justice system must adapt to meet terror challenges’, . 109 Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report No 98, June 2004. 110 The Amending Act was the National Security Information Legislation Amendment Act 2005.

19.53 The NSI Act contains some of the same troubling features that mark the use of CMPs under state legislation and CMP legislation in foreign jurisdictions. In particular, the legislation gives ministers power to issue certificates declaring that the disclosure of certain information, or the evidence of potential witnesses, would compromise national security.111 Such certificates are subject to limited review by the court.112 However, the potential unfairness this legislation could cause to civil proceedings has, to date at least, been rendered moot by the practical operation of the Act. Annual Reports for the National Security Intelligence Act show that zero non-disclosure and witness exclusion certificates had been issued in every year in which such reports were published (dating back to 2010).

Page 24 of 29 Chapter 19 Public Interest Immunity And according to a report issued in 2008 by the Attorney-General’s Department, at that time the NSI Act had only been invoked in one civil proceeding in relation to a control order application.113

Page 782

111 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 38F and 38H. The Attorney-General may issue a civil non-disclosure certificate or a civil witness exclusion certificate if the Attorney-General has been notified (there are detailed provisions regarding notification requirements)or for any reason expects, that a party to a civil proceeding or another person will disclose information in the proceeding; or considers that a written answer given by a witness under s 38E will disclose information, or in the case of a witness exclusion certificate, that a person a party intends to call as a witness may disclose information by his or her mere presence, and the Attorney‑General considers that the disclosure is likely to prejudice national security. 112 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 38L. After a closed hearing the court may make one of the following orders: (1) that the information not be disclosed, (2) that the information be disclosed in redacted form or with a statement or summary of the information, (3) that the information be disclosed, or that the relevant person (4) must not call the person as a witness in the civil proceeding, or (5) may call the person as a witness in the civil proceeding. In deciding which section orders are most appropriate, the court must take into consideration: whether the disclosure of the information or presence of the witness would be a risk of prejudice to national security, having regard to the certificate; whether such an order would have a substantial adverse effect on the substantive proceeding, and any other relevant matter but the court must give the greatest weight to national security considerations. 113 National Security Information (Criminal and Civil Proceedings) Act 2004 Practitioners Guide, Attorney-General’s Department, June 2008.

19.54 More importantly, in its original form there were two crucial differences between the NSI Act, and the much criticised CMP legislation passed by the states and foreign jurisdictions, which effectively eliminated the risk of an unfair trial.First, a closed hearing in which one or more of the parties can be excluded concerned only the question of whether the court should order the disclosure of information said to compromise national security or whether to uphold the Minister’s certificate preventing disclosure. If in this closed hearing the court ruled against disclosure, the information could not be considered by the court in any subsequent hearing. This avoids the possibility of a Kafkaesque trial, in which a court could consider evidence against a party that the party has never seen. Secondly, where the court makes an order preventing the disclosure of information that would compromise national security, the court retains its inherent jurisdiction to stay proceedings if it believes withholding the information from one or more of the parties would result in an unfair trial.114

114 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 19(3)–(5).

19.55 However, in 2016 the NSI Act was amended to allow secret evidence to be adduced in control order proceedings.115 Under the revised Act, s 38J allows a court to make three new types of orders in proceedings for the making, confirming or varying of a control order. These are: (i)

the subject of the control order and their legal representative may be provided a redacted or summarised form of the national security information. However, the court may consider all of the information contained in the original source document,even where that information has not been provided in the redacted or summarised form;

Page 25 of 29 Chapter 19 Public Interest Immunity (ii)

the subject of the control order and their legal representative may not be provided with any information contained in the original source document. However, the court may consider all of that information; or

(iii) a witness may be called and the information provided by the witness need not be disclosed to the subject of the control order or their legal representative. However, the court may consider all of the information provided by the witness.

The effect of these orders is that it will allow the court to consider information that is not disclosed to the subject of the control order or their legal representative — Joseph K’s nightmare.

115 Counter Terrorism Amendment Act 2016 (Cth).

19.56 During the committee stage of the bill’s passage, the Parliamentary Joint Committee on Intelligence and Security recommended,116 and the government accepted, that these new powers in control order proceedings be accompanied by the two well-known safeguards used in CMPs elsewhere — the requirement to provide a gist of the closed material to excluded parties, and the appointment of special advocates to protect their interests.117 The Act contains a minimum standard of disclosure, which is that the subject of a control order proceeding be given ‘sufficient

Page 783 information about the allegations against him or her to enable effective instructions to be given in relation to those allegations’.118

116 Parliamentary Joint Committee on Intelligence and Security, ‘Advisory report on the Counter- Terrorism Legislation Amendment Bill (No. 1) 2015’, February 2016, pp 52–85. 117 The power to appoint special advocates is set out in s 38PB of National Security Information (Criminal and Civil Proceedings) Act 2004(Cth). 118 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 38.

19.57 The value of these safeguards has been subject to detailed scrutiny in other jurisdictions and found wanting. In the English case of Al Rawi, Lord Dyson noted that in many cases special advocates would be hampered by their inability to take instructions from the party whose interests they were required to represent. More serious still, judges would be unable to determine if and to what extent the special advocate’s task had been so hampered.119 Special advocates with first-hand knowledge of the restrictions under which they operate have criticised their ability to provide effective protection of the interests of the absent party.120 Whilst it is possible that special advocates could make a forensic difference in some cases, for example where evidence can be challenged without the need for instructions from an excluded party, in many cases it is doubtful whether they can redress the disadvantage suffered by excluding a party from a hearing and denying them access to critical evidence. The use of special advocates may add a veneer of legitimacy to a process that remains fundamentally unfair, fundamentally Kafkaesque.

Page 26 of 29 Chapter 19 Public Interest Immunity 119 Similar views have been expressed by the Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: see Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (16th Report): Annual Review of Control Orders Legislation 2010 (TSO, 2010), HL Paper 64, HC 395 (referred to by both Lord Dyson and Lord Brown in Al Rawi). 120 M Chamberlain, ‘Special Advocates and Procedural Fairness in Closed Proceedings’ (2009) 28 Civil Justice Quarterly 314.

Can PII claims breach procedural fairness?

19.58 1One effect of the introduction of CMPs has been renewed debate about the value and limitations of PII claims as a means of protecting national security whilst also upholding the administration of justice. One of the arguments advanced in favour of CMPs in the United Kingdom is that in some circumstances the PII claim procedure, and a successful PII claim, could deny procedural fairness to a party.121 A successful PII claim may deny a litigant evidence that is crucial to the success or defence of their claim. A successful PII claim may also deny a litigant knowledge of the substance of the case against them. Moreover, under Australian law, the evidence in support of a claim for PII can also be withheld from a party if its disclosure would compromise the public interest; that is, the court can receive a confidential affidavit setting out the basis for the claim, which is not available to the other party.122 It may be recalled that in the context of a PII claim, the court must weigh the harm to the public interest that would be caused by the disclosure of the evidence against the harm to the administration of justice if the evidence is withheld,that is, whether the evidence is needed to make out a claim or defence.

Page 784 Holding an ex parte hearing to decide an application to withhold evidence, in which the court considers whether the evidence could affect the result of the case,lies at the outer limits of the rule of law. The combined effect of the procedure for claiming PII and the effects of a successful PII claim is that a party may be denied access to the reasons advanced in support of the claim to withhold the evidence,and ultimately the evidence itself.123

121 See, for example, Lord Mance in Al Rawi v The Security Service [2011] UKSC 34 at [108] [2001] EWCA Civ 680; ; [2001] 1 WLR 1786 evidence was subject to public interest immunity).

, citing Carnduff v Rock

(claimant’s case struck out as untriable on grounds almost all

122 National Crime Authority v Gould (1989) 23 FCR 191 at 199; 90 ALR 489 at 497

; R v Rusmanto (1997) 6 NTLR 68

. 123 Jackson v Wells (1985) 5 FCR 296 at 307–8

; Casley-Smith v Stirling District Council (1989) 51 SASR 447 at 471

. Some cases have ordered limited disclosure to a party’s legal representatives: Church of Scientology of California Inc v Dept of Health and Social Security [1979] 3 All ER 97

.

19.59 There are, however, some crucial differences between CMPs and PII claims, as the High Court noted in Pompano: If, in litigation not governed by the CO Act, a party sought to adduce evidence of information that would meet the definition of criminal intelligence, the Commissioner may very well be able to resist its production on public interest immunity grounds. In determining that claim, the court could examine124 documents not shown to one party for the purpose of ruling on that claim. And if that objection were to be upheld, the material could not be received in evidence.125 But in a case of the kind just described, it would be the Commissioner who would seek to keep the information secret. The CO Act seeks to permit

Page 27 of 29 Chapter 19 Public Interest Immunity the Commissioner to use [the evidence].126

124 Sankey v Whitlam (1978) 142 CLR 1 at 46; [1978] HCA 43

; Alister v R (1984) 154 CLR 404; [1984] HCA 85

125 Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24

.

.

126 Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [148]

.

19.60 In a CMP, ‘closed’ material is not excluded from proceedings in the way material may be excluded as a result of a PII claim. Where a PII claim has been upheld, the material in question is altogether excluded from the proceedings.127 By contrast, in a CMP, the government may rely on and use closed material notwithstanding that the other party and its advisers have not seen it and have not been allowed to challenge it, and the court may use the closed material in reaching its decision.128 Furthermore, unlike with PII, material may be closed without conducting any balancing exercise resulting ‘in a departure from both the open justice and the natural justice principles’.129

127 Rogers v Home Secretary [1973] AC 388

at 400

,406–7

Whitlam (1978) 142 CLR 1 at 44,58–9; 21 ALR 505 at 530,542 Zarro (No 2) (1992) 34 FCR 427 at 436

; [1972] 2 All ER 1057 at 1060,1066

. See also Australian Securities Commission v

, and on appeal Zarro v ASC (1992) 36 FCR 40 at 46

Seal Rocks Pty Ltd (2001) 3 VR 1; [2001] VSCA 94 at [17]

; Sankey v

(FC); Victoria v

.

128 Select Committee on the Constitution, 3rd Report of Session 2012–13: Justice and Security Bill [HL] (TSO 2012), 5 [10]. 129 Al Rawi v The Security Service [2011] UKSC 34 at [14] per Lord Dyson. See also Select Committee on the Constitution, 3rd Report of Session 2012–13: Justice and Security Bill [HL] (TSO 2012), 8 [21].

19.61 A recent example of the issues that can arise with PII claims is provided by El Ossman v Minister for Immigration and Border Protection.130 The Federal Court held that the applicant who was given an adverse security assessment had been denied procedural fairness because the Security Services had not informed the applicant of the essence of the case against him or indicated they had reason to doubt the answers he had given in interviews. Wigney J stated:

Page 785   [It may] be accepted that Mr El Ossman could have been under no illusions as to the types of information that ASIO was interested in. It is doubtful, however, that this questioning could accurately be characterised as putting Mr El Ossman on notice of ASIO’s ‘concerns’. The questions concerning these matters were all framed in open and non-leading terms. The interviewers gave Mr El Ossman no indication that they did not believe, or even doubted, any of his responses, or had reason to doubt his answers, or had any information contrary to Mr El Ossman’s answers. They did not in any relevant

Page 28 of 29 Chapter 19 Public Interest Immunity sense put Mr El Ossman on notice that ASIO was in fact concerned that he was involved with or supported politically motivated violence in Lebanon or Syria, or that he was associated or involved in some way with Islamic State, Jund alSham or Jabhat al-Nusra, or that he knew or supported Houssam El Sabbagh.131

130 El Ossman v Minister for Immigration and Border Protection [2017] FCA 636. 131 El Ossman v Minister for Immigration and Border Protection [2017] FCA 636 at [115]

.

19.62 Some of the case against El Ossman was subject to a PII claim and therefore its non-disclosure could not be grounds for complaint. However, according to Wigney J, there was information relevant to the applicant’s assessment that could and should have been put to him, and the failure to do so was a breach of procedural fairness. Accordingly, El Ossman could be described as a ‘soft choice’ case.132 The ‘hard choice’ case, by contrast, is where a successful PII claim would deny a party procedural fairness because if the evidence is not disclosed a party would be denied knowledge of the essence of the case against them and therefore the ability to make meaningful submissions to the court. In these ‘hard choice’ cases there appears to be an intractable conflict between the administration of justice on the one hand and national security on the other.

132 See explanation at 19.37.

19.63 So in ‘hard choice’ cases are the courts stuck between the PII rock and a CMP hard place? In circumstances where government ministers or agencies have a statutory obligation to make decisions using information subject to national security, it is conceivable that both a PII claim and a CMP would deny procedural fairness to a party seeking to challenge the decision. If the information on which the decision is based is subject to PII, then an applicant has no real way of challenging the government’s decision except by pointing to some irregularity in the procedure. The challenging party would invariably lose.133 On the other hand, where the government’s decision is subject to legal challenge only in a CMP, the excluded party is offered a Kafka-esque trial; that is, a process in which they are not told of the allegations against them, nor informed of the evidence against them, not allowed to challenge the evidence and not informed of the reasons for the eventual decision to the extent that it is influenced by the secret evidence. Faced with this ‘hard choice’, it may be that a CMP is a preferable procedure to test the lawfulness of the government decision. However, the choice between PII and CMP is not a choice between a just procedure and a procedure which is less just. Rather, it is a choice between two fundamentally unjust procedures in the interest of protecting national security. CMPs are not a fair dispute resolution process but rather a form of administrative accountability mechanism presided over by a judge. This conclusion, in turn, may have constitutional implications for the form

Page 786 of proceedings for a CMP, given the restrictions placed on the exercise of judicial power by Ch III of the Constitution.

133 AHK v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) at [7]–[12].

Page 29 of 29 Chapter 19 Public Interest Immunity

19.64 The solution in ‘hard choice’ cases in ordinary civil proceedings or criminal proceedings may be more straightforward, albeit it would pose a stark dilemma for the state. If the state is party to proceedings in which a PII claim is made in respect of certain information, then if the information is essential to enable the other party to establish their claim of defence, there is a strong argument for saying that the state must choose between pursuing the proceedings with disclosure of the critical evidence, or protecting the evidence and discontinuing proceedings, which in civil proceedings would sometimes result in the state having to pay damages. An alternative approach in civil proceedings is to recognise that where the protection of national security information is incompatible with fair trial, justice can no longer be done in court proceedings, and that therefore the proceedings must be stayed. Once it is accepted that there are extreme situations where a fair trial cannot be held because it is incompatible with national security, we must also accept that one of the parties has been denied the opportunity to have their claim of defence adjudicated. Given that the denial of the opportunity to have a fair adjudication represents a real loss, ways should be found to compensate the affected party. Rather than let the legal loss lie where it falls, it would be better to acknowledge the regrettable, though inevitable, denial of justice by compensating the affected party, however symbolic such compensation might be. To qualify for such compensation, however, the affected party should at least be able to point to a prima facie case in order to avoid abuses. It is preferable to acknowledge the limitations of court adjudication than to pretend that an inherently unfair process produces justice and thereby debase the concept of justice, and public confidence in the rule of law.

End of Document

Chapter 20 Witness Statements and Affidavits Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 20 — Witness Statements and Affidavits

Chapter 20 Witness Statements and Affidavits Page 787 [Current to May 2018]

Introduction

20.1 Today it is common practice for parties to exchange written statements of their witnesses’ evidence-in-chief in advance of trial. Such statements will ordinarily take one of three forms, depending on the nature of the case, the facts in issue and the jurisdiction in which the proceedings are brought: an affidavit, a witness statement or a witness outline.1 The differences between these documents are discussed later in this chapter.2

1

We are concerned in this chapter only with the use of affidavits at trial. The use of affidavits in support of interlocutory and other applications is discussed in Chapter 8. For a treatise on affidavits generally, see J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013.

2

See 20.10 ff.

20.2 The pre-trial exchange of testimonial information is a relatively new phenomenon. It represents a drastic departure from the historical position at common law, which made no provision for witnesses in the pre-trial process. That process was concerned only with the exchange of pleadings and documents between the parties. Testimony was reserved for trial, where each party’s evidence was presented — orally — for the first time.3 Parties had no right to learn in advance who each other’s witnesses were or what they were going to say.4 It was a perfectly acceptable practice to keep an opponent guessing and ambush them in court. This practice had obvious drawbacks.

Page 788 Parties were unable to prepare effectively for, and were often taken by surprise at, trial.They were unable to properly assess the strengths and weaknesses of each other’s cases, making settlement discussions difficult and discouraging the informed and early resolution of disputes. Trials frequently had to be adjourned to enable parties to reconsider their cases and prepare responses to unexpected evidence.

3

The common law rules historically provided that oral evidence, led at the hearing, was the only admissible form of evidence in a proceeding: J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013,p 3. Although that position changed over time, limited exceptions to the hearsay rule prior to the 1960s meant in practice that, in order for a party to establish any given fact, it was often necessary for that party to call a witness to give oral evidence of the fact

Page 2 of 27 Chapter 20 Witness Statements and Affidavits in court: see Justice P Brereton, ‘Evidence in Civil Proceedings: An Australian Perspective on Documentary and Electronic Evidence’ [2007] NSWJSchol 13 at 1. 4

Before the introduction of witness statements, Lord Wilberforce remarked that in ‘the adversary system of litigation … a litigant is entitled within limits to refuse to disclose the nature of his case until the trial. Thus one side may not ask to see the proofs of the other side’s witnesses or the opponent’s brief or even know what witnesses will be called: he must wait until the card is played and cannot try to see it in the hand’: Waugh v British Railways Board [1980] AC 521 at 531 656

; [1979] 2 All ER 1169 at 1172

(HL); see also Anderson v Bank of British Columbia (1876) 2 Ch D 644

at

.

20.3 Historically, the position was different in equity. Early Chancery court practice required witnesses to attend upon a Chancery official prior to a hearing so that the official could take down, by way of affidavit, a written statement of a witness’s oral testimony.5 Over time that practice evolved such that the lawyers acting for the parties themselves, rather than Chancery officials, assisted their witnesses prepare affidavits and file them with the court.6 A party could elect for evidence to be given orally or by affidavit.7 Upon the passing of the Judicature Acts (UK), the Courts of Chancery began to follow the practice of their common law counterparts and require evidence to be given orally.8

5

Western Australian Bar Association, ‘Preparing Witness Statements for Use in Civil Cases: Best Practice Guide’, 2011, p ii.

6

P D Santamaria and J D Elliott, ‘Affidavits and Witness Statements in Civil Proceedings’ (2004), The Victoria Bar Compulsory Continuing Legal Education Program.

7

J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013, p 30.

8

Western Australian Bar Association, ‘Preparing Witness Statements for Use in Civil Cases: Best Practice Guide’, 2011, p ii.

20.4 The passage of the Civil Evidence Act 1972 (UK) signalled the first departure from the traditional position. Section 2(3) of that Act allowed for rules to be passed providing for the exchange of expert witness reports in advance of trial. No similar arrangement was made with respect to lay witnesses until 1986, when courts in the United Kingdom were empowered to order the pre-trial exchange of lay witness statements.9 Courts in Australia thereafter followed suit and, at a stroke, the scope of pre-trial disclosure was expanded deep into the realm of evidence, altering both the nature of the parties’ preparation for trial and the mode of taking oral evidence at the trial itself. The change was significant. A leading civil procedure commentary in the United Kingdom at the time observed:10 It extends the bounds of pre-trial discovery to the area of the evidence of facts, and it does so not by way of taking the depositions of the witnesses by their oral examination as in America, nor by way of ‘examination by discovery’by the oral examination of the parties as in Canada, but by way of the direct written statement of the witnesses of their evidence of the facts which they can prove of their own knowledge … It embodies a fundamental innovation in the law and practice relating to the identity of the intended trial witnesses of the parties and relating to the confidentiality of their statements or ‘proofs’ of evidence … Above all it greatly improves the pre-trial process by providing the machinery for enabling all the parties to know before the trial precisely what facts

Page 789   are intended to be provided at the trial, and by whom, and thereby it reduces delay, costs and the opportunity for procedural

Page 3 of 27 Chapter 20 Witness Statements and Affidavits technicalities and obstruction towards the trial.11

Today, it is common for witness statements or affidavits to stand in place of oral evidence-in-chief, with oral testimony in court confined to the cross-examination of witnesses on the contents of their pre-trial statements.

9

Rules of the Supreme Court 1965 O 38 r 2A (added by SI 1986/1187; amended by SI 1988/1340). For a discussion of the nature of the procedural change, see Comfort Hotels v Wembley Stadium [1988] 3 All ER 53; [1988] 1 WLR 872 ; Fairfield-Mabey v Shell [1989] 1 All ER 576 Practice 1999, vol 1, 38/2A/5–7.

; Supreme Court Practice, 1988, vol 1, 38/2A/2; Supreme Court

10 Supreme Court Practice, 1988, vol 1, 38/2A/2. 11 See also Lord Donaldson MR’s comments in Mercer v Chief Constable of the Lancashire Constabulary [1991] 2 All ER 504 at 508–9; [1991] 1 WLR 367 at 373 (CA) and Justice Ipp’s comments in ‘Judicial Intervention in the Trial Process’ (1995) 69 Australian Law Journal 365 at 379 in which he described the introduction of witness statements as the ‘most far-reaching innovation as regards the leading of evidence’.

Advantages of written evidence-in-chief

20.5 Walter v Buckeridge (No 3) ,12 Le Meire J opined that: The exchange of witness statements serves a number of functions. One of these is the elimination of surprise in our adversarial system of litigation. It is now accepted practice that before a party goes into court the party should know what case he or she is going to meet. The days of ambush are a thing of the past. A second objective of requiring the exchange of witness statements is to render the trial process more efficient and shorter.

By exchanging witness statements, the parties learn in advance of the trial what each other’s witnesses are going to say. They are better able to narrow the issues in dispute, to assess their chances of success and, where appropriate,to settle.13 Prior notice of evidence-in-chief facilitates better trial preparation. Because witness statements often make it unnecessary for witnesses to testify in-chief — saving trial time — parties can focus their efforts on cross-examination.Witness statements may also facilitate better judicial preparation. A judge who is able to peruse statements in advance of trial may be better able to understand the issues in dispute and to allocate trial time accordingly. Thus, witness statements ‘improve the efficiency of trials’.14

12 [2010] WASC 68 at [15]

.

13 See Akins v Abigroup Ltd [1998] NSWSC 254; (1998) 43 NSWLR 539 at 551

; Hodgson v Amcor Ltd [2011] VSC

63 at [82]–[84] ; Saad v New South Wales [2013] NSWSC 154 at [50]–[52] ; A Sullivan QC, ‘Written Evidence: Written Statements and Affidavits as an Alternative to Oral Evidence’ (2015) New South Wales Bar Association. 14 Wang v Consortium Land Pty Ltd [2000] WASC 265 at [15]

Disadvantages of written evidence-in-chief

20.6

.

Page 4 of 27 Chapter 20 Witness Statements and Affidavits Witness statements are not, however, without their disadvantages. They are expensive to prepare. They are frequently drafted in language other than the witness’s own, giving a limited sense of the witness as a person, the way in which they would describe the events in question, the strength of their recollection and their reliability generally. Their pre-trial exchange allows parties to rehearse their responses to each other’s evidence. Writing extra-judicially, Justice Emmett expressed the following view on the limitation of written statements of evidence:15

Page 790   Where evidence is uncontroversial it is clearly convenient that the evidence be adduced in a written form. Such a procedure is capable of saving time and avoiding misunderstanding and confusion. However, where evidence is controversial,particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair. An honest witness, albeit nervous in unfamiliar and overbearing surroundings, will be better able to defend in cross-examination evidence given by the witness in his or her own words. With the very best of intentions, a lawyer who settles an Affidavit or a Witness Statement will invariably reduce the language of the witness to the lawyer’s own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer. Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence in chief orally rather than being exposed to crossexamination immediately upon entering the witness box.

15 Justice Emmett, ‘Practical Litigation in the Federal Court of Australia: Affidavits’ (2000) 20 Australian Bar Review 28 at 28.

20.7 To similar effect, in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd ,16 Callinan J observed: The procedure for trials in [the Federal Court] also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins. This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case. The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the crossexamination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.

Page 5 of 27 Chapter 20 Witness Statements and Affidavits 16 (2006) 229 CLR 577 at 634–5

, [174]–[176].

20.8 Similar concerns have been expressed in the United Kingdom. Commenting on the position approximately 10 years after the introduction of witness statements, Lord Woolf observed that such statements were ‘having a devastating effect on costs … because statements were being treated by the parties as documents which had to be

Page 791 as precise as pleadings and which went through many drafts’17 and had ‘ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting’.18

17 Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales, 1995, p 176. 18 Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, 1996, p 129.

20.9 For the reasons expressed above, it will not be appropriate for a court to make orders requiring parties to file and serve witness statements in every case. Nor will it, however, be appropriate that the parties have no notice of the evidence the other or others intends to lead at trial.19 In recognition of this fact, the rules in each jurisdiction (1) make room for the exchange of testimonial information in various forms; and (2) allow the court to determine the form, or forms, that will best suit the case at hand. The courts’powers in this regard are wide.

19 Without any notice at all of the evidence one’s opponent will lead, a party may be left in the dark about the case that it is expected to meet. Some notice of the witnesses that parties intend to call, and the evidence they intend to give, may thus be seen as a requirement of the right to a fair trial. The degree of notice required will depend on the circumstances of each case.

Witness statements, witness outlines and affidavits Affidavits

20.10 An affidavit is a written statement of a person’s evidence, sworn or affirmed as true and correct by that person, by oath or affirmation, before a person authorised to receive affidavits.20 Unlike a witness statement, an affidavit is a sworn statement of evidence. It is a medium by which the person making the affidavit, known as the deponent, gives his or her evidence-in-chief to the court. Unless the deponent is required to attend court to be cross-examined on the contents of his or her affidavit, they need not attend court at all. Their affidavit will simply be ‘read’ into evidence.

Page 6 of 27 Chapter 20 Witness Statements and Affidavits 20 The word affidavit comes from Latin and means ‘he or she has sworn’ or ‘he or she has made an oath’: J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013, p 7.

20.11 The rules of court prescribe the form an affidavit must take.21 They ordinarily require an affidavit to be written in the first person, divided into consecutive numbered paragraphs, with each paragraph dealing with a distinct portion of the subject matter, and limited to evidence which the deponent can give from their personal knowledge.22

Page 792

21 Federal Court Rules 2011 (Cth) Div 29.1; Court Procedures Rules 2006 (ACT) Div 6.10.2; Uniform Civil Procedure Rules 2005 (NSW) Pt 35; Supreme Court Rules (NT) O 43; Uniform Civil Procedure Rules 1999 (Qld) Pt 7 Ch 11; see also r 430; Supreme Court Civil Rules 2006 (SA) Div 1 Pt 12; Supreme Court Rules 2000 (Tas) Div 4 Pt 19; Supreme Court (General Civil Procedure)Rules 2015 (Vic) O 43; Rules of the Supreme Court 1971 (WA) O 37. 22 This is a product of the hearsay and opinion rules contained in the Evidence Acts. It is also a requirement of the rules of certain jurisdictions: Court Procedures Rules 2006 (ACT) r 6711(1); Supreme Court Rules (NT) r 43.03(1); Uniform Civil Procedure Rules 1999 (Qld) r 430(1) ;Supreme Court Civil Rules 2006 (SA) r 162(2); Supreme Court Rules 2000 (Tas) r 502; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 43.03(1); Rules of the Supreme Court 1971 (WA) r 6(1), O 37. Unlike in affidavits sworn in support of interlocutory processes (which are discussed in Chapter 8), affidavits prepared for use at trial must not ordinarily contain hearsay. This is because the trial of a proceedings will finally determine the issues between the parties and thus requires the best evidence available to be placed before the court.

Witness statements

20.12 Unlike affidavits, which have a history stretching back to as early as 1220,23 witness statements are a relatively recent invention, originating in the United Kingdom in the mid-1980s. A witness statement is a written statement of the evidence-in-chief a witness intends to give at the trial of the proceedings. Although such statements are typically signed by witnesses and may contain a statement verifying their accuracy, they do not constitute the sworn evidence of the witness as they are not made on oath or affirmation. Before the contents of a witness statement can be admitted into evidence at trial, the maker of the statement must be called and ‘sworn in’ as a witness and, once in the witness box, adopt the statement by confirming that it is true, correct and the evidence-in-chief he or she wishes to give. Unlike the deponent of an affidavit, the maker of a witness statement must ordinarily be present at the trial of the proceedings, irrespective of whether they will be cross-examined.

23 J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013, pp 2 and 4–5.

20.13 Notwithstanding these differences, affidavits and witness statements are fundamentally similar documents. Like affidavits, witness statements must be written in the first person and limited to facts which the witness is able to state from their own knowledge and which are otherwise admissible. Both should be expressed in the witness’s own language and divided into consecutively numbered paragraphs, each of which deals with a distinct portion of the witness’s evidence.24

Page 7 of 27 Chapter 20 Witness Statements and Affidavits

24 The Western Australian Bar Association had published a best practice guide on the preparation of witness statements in civil litigation: Western Australian Bar Association, ‘Preparing Witness Statements for Use in Civil Cases: Best Practice Guide’ (2011), available online at . Practitioners in Western Australia are typically required to certify that witness statements filed in that jurisdiction have been prepared in accordance with the guide. Practitioners in all jurisdictions would be well served by careful consideration of the matters raised in that guide in the preparation of such statements.

Do witness statements need to be signed?

20.14 The rules in some jurisdictions require that witness statements be signed by witnesses before being filed and served,25 while others are silent on the point.26 On one view, little turns on the point as the matters the subject of the statement are not admitted into evidence, and do not stand as the witness’s evidence, until such time as the witness confirms the contents of his or her statement at trial under oath.

25 for example, Uniform Civil Procedure Act 2005 (NSW) s 31.4(3); Rules of the Supreme Court 1971 (WA) O 4A r 2(2)(t). 26 for example, South Australia and Victoria.

20.15 On the other hand, the act of signing the statement signals the witness’s agreement to and adoption of the contents of that statement as the evidence-in-chief they wish to give at a particular point in time. This has two practical consequences.

Page 793 First,it ensures that care is taken in drafting the witness statement in the first place. Secondly, it means that a witness is less likely to resile or otherwise seek to radically depart from their statement at trial.

20.16 In some jurisdictions, practice directions provide template orders for witness statements, which orders require statements to be ‘verified’ by the inclusion of words to the following effect: ‘I verify that I have read the contents of this my witness statement and the documents referred to in it and that I am satisfied that this is the evidence in chief which I wish to give at the trial of the proceeding.’27

27 See Supreme Court of Victoria Practice Note SC CC 1, Schedule 8, [10(e)]; Supreme Court of Western Australia Consolidated Practice Directions 4.1.2.2, [43(g)].

Witness outlines

Page 8 of 27 Chapter 20 Witness Statements and Affidavits

20.17 Like witness statements, the concept of a witness outline28 is relatively new. A witness outline is a document which, as the name suggests, outlines the evidence-in-chief a witness proposes to give at trial. It is not a comprehensive or complete account of that evidence. It merely serves to identify the topics on which the witness will give evidence and what they will say, at a high level of generality, about those topics.

28 Witness outlines are also known as ‘outlines of evidence’ or ‘witness summaries’. These terms refer to one and the same thing.

20.18 It is typical for a judge, when ordering witness outlines to be filed, to specify what form he or she envisages the outline might take, having regard to the reason outlines are being ordered in the first instance. It may be that an outline merely identifies the matters on which the witness proposes to give evidence at trial, without setting out what any of that evidence is. Alternatively, it may outline the witness’s evidence on those matters in general terms. Unlike a witness statement,a witness outline is not intended to be capable of standing as a witness’s evidence-in-chief. The primary function of a witness outline is to give parties due notice of the topics a witness will address at trial, to avoid surprise and to allow for proper trial preparation.

When should each document be used?

20.19 There are no hard and fast rules prescribing the circumstances in which affidavits, witness statements, or outlines are required. In each case, it is a matter for the court to determine whether evidence-in-chief should be led orally at trial,exchanged in some written form before trial, or some combination of the two approaches.29 In making this decision, the court will have regard to factors such as the views of the parties, the nature of the case, the facts in issue, including any issues of credit, the costs of preparing statements and the availability of witnesses to attend trial.

29 A party seeking an order for witness statements bears the onus of satisfying the court that such an order should be made: Thompson v Dal Cin [2006] NSWSC 1249 at [12]–[15]

.

20.20 It is open to the court to order, for example, that witness statements be exchanged, but limited to only some of the issues in dispute, or capped at a particular length, or both. Alternatively, a court might order that only certain witnesses prepare

Page 794 witness statements, while others prepare witness outlines or given evidence viva voce, depending on the case at hand.

Page 9 of 27 Chapter 20 Witness Statements and Affidavits

20.21 In cases where much of the evidence will be documentary, witness statements and affidavits are particularly suitable. Such cases are unlikely to turn on matters of credit and may otherwise require the parties to take witnesses through a significant volume of documents during trial — a slow and arduous process which requires a witness to read each document and then explain or comment upon it. This can sensibly be done out of court, before trial, with court time limited to cross-examination on critical documents. Witness statements and affidavits are also well suited to matters with few contested facts and to complex matters where some exposition of the evidence, and an opportunity to reflect on that exposition, may reasonably be required.

20.22 Ordinarily, little will turn on whether an affidavit or a witness statement is used as the vehicle by which a witness puts their evidence-in-chief in writing before the court. However, in circumstances where a witness is critically ill, suffering from some condition that prevents them from attending court or giving oral evidence or is otherwise unavailable to give evidence at trial, it may be appropriate for that witness to give their evidence by affidavit, to avoid the need to call them at trial.30 Affidavits may also be preferred in cases where the court, or parties, perceives some advantage in having witnesses ‘swear up’ to their evidence in advance of trial.

30 See J Levingston, The Law of Affidavits, Federation Press, Sydney, 2013, p 31.

20.23 Outlines of evidence are most appropriate in cases where (1) there are contested facts; (2) the court would otherwise benefit from hearing each witness’s account of events first hand; (3) the costs of preparing a witness statement or affidavit would be disproportionate to the quantum of the dispute; or (4) a person who a party wishes to call as a witness is uncooperative with that party, such that a complete account of their evidence cannot be obtained (and put into statement or affidavit form) before trial. In the latter case, the outline may simply list the topics on which the witness will be invited to give evidence, and evidence the witness is expected to give on those topics.

20.24 In many cases, a simple outline of the witness’s testimony will be sufficient to avoid surprise or any other prejudice to the opponent. But there may well be cases where the opponent is placed at a real disadvantage by the absence of a full statement. The court will be mindful of the extent to which disclosure is required to avoid prejudice in determining the most appropriate form of evidence-in-chief.

The rules Overview

20.25

Page 10 of 27 Chapter 20 Witness Statements and Affidavits Courts have wide-ranging powers to control evidence. While the rules in each jurisdiction establish a default mode by which evidence is to be given,31 the courts are free to depart from the default to suit the needs of each case.32

Page 795

31 Save for the Federal Court of Australia, which has no default position. 32 Court Procedures Rules 2006 (ACT) rr 6700(3)(a) and 6701(1); Uniform Civil Procedure Rules 2005 (NSW) rr 2.3(k) and 31.1(3); Supreme Court Rules (NT) rr 40.03(1) and 48.25(1); Uniform Civil Procedure Rules 1999 (Qld) r 367(1), (3)(d) and (3)(j); Supreme Court Civil Supplementary Rules 2014 (SA) r 169 (regarding witness statements) and Supreme Court Civil Rules 2006 (SA) r 168 (regarding affidavits);see also r 130J(1)(e) and (2)(i) regarding initial directions; Supreme Court Rules 2000 (Tas) rr 415(3), (4A)(g) and 459; Civil Procedure Act 2010 (Vic) s 49(1) and (3)(j), and, as regard matters in the Commercial Court, Supreme Court of Victoria Practice Note SC CC 1, [15.12]– [15.26]; Rules of the Supreme Court 1971 (WA) O 4A rr 2(2)(t) and 5(1).

20.26 The starting point in most jurisdictions is that evidence at the trial of proceedings commenced by writ (or its equivalent) is to be given orally in court,33 whereas evidence in proceedings commenced by originating motion (or its equivalent) is to be given by affidavit.34 This is because cases commenced by writ ordinarily involve contested questions of fact and are thus best resolved by hearing directly from witnesses, in person, whereas cases commenced by originating motion ordinarily turn on questions of law, such that factual controversy is unlikely and parties ought not be put to the trouble and expense of calling and cross-examining witnesses.

33 Court Procedures Rules 2006 (ACT) r 6700(1); Uniform Civil Procedure Rules 2005 (NSW) r 31.1(2); Supreme Court Rules (NT) r 40.02(b); Uniform Civil Procedure Rules 1999 (Qld) r 390(a) ; Supreme Court Civil Rules 2006 (SA) r 212; Supreme Court Rules 2000 (Tas) r 458(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 40.02(b); Rules of the Supreme Court 1971 (WA) O 36 r 1. There is no default position in the Federal Court. Rule 5.04 permits the court to make such directions for the management, conduct and hearing of a proceeding as it sees fit, including(1) as to whether the evidence-in-chief of witnesses is to be given orally, by affidavit or both; and (2) as regards the filing and exchange of signed statements of evidence and outlines of evidence of intended witnesses, and their use in evidence at the hearing: items 20 and 21 of the table set out in r 5.04(3). 34 Court Procedures Rules 2006 (ACT) r 6700(2); Uniform Civil Procedure Rules 2005 (NSW) r 31.2; Supreme Court Rules (NT) r 40.02(c); Uniform Civil Procedure Rules 1999 (Qld) r 390(b) ; Supreme Court Rules 2000 (Tas) r 458(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 40.02(c); Rules of the Supreme Court 1971 (WA) O 36 r 2(3).

20.27 Set out below are the rules in each jurisdiction on witness statements, outlines and affidavits. As will be seen, only the rules in New South Wales deal with witness statements at any length. While the rules in each other jurisdiction empower courts to order the exchange of witness statements in advance of trial,35 they do not otherwise provide any guidance on the use of such statements or their proper preparation.36 The rules are largely silent, for example, on the form statements should take, whether they are required to be signed, the order in which they are to be exchanged, the status of such statements at trial, whether further evidence, not the subject of a witness statement, can be adduced at trial, the consequences of not filing a witness statement within the prescribed time, or at all, if so ordered, and the consequences of failing to call a witness who has given a witness statement. These are matters to be determined by the court on a case-by-case basis. In some jurisdictions, practice notes provide some guidance as to the court’s general practice with respect to witness statements.37

Page 11 of 27 Chapter 20 Witness Statements and Affidavits

Page 796

35 In Victoria, the court’s powers regarding witness statements derive from the Civil Procedure Act 2010 (Vic) and not the rules themselves. 36 In Victoria and Western Australia, practice notes go some of the way to filling the gaps left by the rules: see note 37 below. 37 The practice direction in Western Australia, for example, is very detailed. Practitioners in Western Australia should have regard to that direction as well as the Western Australian Bar Association’s best practice guide ‘Preparing Witness Statements for Use in Civil Cases’ (2011), compliance with which the practitioner preparing the witness statement must certify by signed certificate: see the template order at [43(g)], PD 4.1.2.2 of the Consolidated Practice Directions.In Victoria, see Supreme Court of Victoria Practice Note SC CC 1, [15.4] ff and Schedule 8, as regards proceedings in the Commercial Court.

Commonwealth

20.28 Rule 5.04(1) of the Federal Court Rules 2011 (Cth) provides that the court may, at any hearing, make directions for the management, conduct and hearing of a proceeding. The rules contemplate that the court may give directions regarding ‘the giving of evidence at the hearing, including whether the evidence-in-chief of witnesses is to be given orally, or by affidavit38 or both’ and ‘the filing and exchange of signed statements of evidence and outlines of evidence of intended witnesses and their use in evidence at the hearing’.39 The rules do not otherwise make mention of witness statements or outlines.

38 Rule 29.08 requires a party intending to use an affidavit to serve it on each other interested party at least three days before the occasion for using it arises. Rule 29.09 allows a party to give notice, to the party filing the affidavit, requiring the deponent to attend for cross-examination. If the deponent does not attend, their affidavit cannot be used. Reexamination is permitted. 39 Items 20 and 21 of the table at r 5.04(3).

20.29 Section 11 of the Federal Court of Australia’s Practice Note CPN-140 advises parties as follows: At an early stage in the proceedings parties should consider and confer about an approach to the management of evidence. That consideration should cover the best way to lead evidence — whether written or oral. … The choice between written evidence (whether by affidavit or statement) and oral evidence (or a combination of both) will depend upon the nature of the case and the nature of the evidence in the relevant NPA [National Practice Area] or Subarea.One of the Court’s primary aims is a consistency of approach within NPAs, and in that regard, parties should give careful consideration to the relevant NPA practice note. In many cases of contested oral evidence or contested state of mind evidence,oral evidence (properly disclosed beforehand to avoid surprise) may be preferable to the use of affidavits or statements. Relatively uncontentious evidence, especially that which draws together sequences of events, may be better adduced in writing. In some cases, it may be that the interlocutory process of evidence exchange will be influenced by the need for the parties to have a very precise understanding of the evidence intended to be given if mediation or early settlement is likely to be successful.Much will depend upon the nature of the case and the practice in the relevant NPA.

Page 12 of 27 Chapter 20 Witness Statements and Affidavits What is to be aimed at above all is consistency of approach within NPAs. Therefore, it is to be expected that NPA practice notes, to the extent necessary, will deal with this topic. … The proper choice of what evidence to lead and the best way to lead it is a central responsibility of the parties, their lawyers and most particularly the advocates retained to run the hearing.

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40 Central Practice Note 1: National Court Framework and Case Management dated 25 October 2016.

Australian Capital Territory

20.30 Rule 6700 of the Court Procedures Rules 2006 (ACT) provides that evidence at the trial of proceedings started by originating claim is to be given orally, while evidence in proceedings started by originating application is to be given by affidavit.As in other jurisdictions, this default position prevails unless the court otherwise orders or the rules otherwise provide.

20.31 Rule 6701 allows the parties to proceedings commenced by originating claim to agree that evidence at trial shall be given by affidavit. The agreement will have effect providing that it is made before the proceedings are set down for trial and that the court is informed and does not otherwise order.

20.32 Rule 1401(1) empowers the court, at any stage of the proceedings, to give any direction about the conduct of the proceedings it considers appropriate, even though the direction may be inconsistent with another provision of the rules. In deciding whether to give such a direction, the interests of justice are paramount. Such directions might require evidence to be given by affidavit, orally or in some other form.41 The rules do not otherwise make provision for witness statements or outlines.

41 Rule 1401(4)(g).

New South Wales

20.33 Rules 31.1 and 31.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provide that, absent any order to the contrary, at the trial of proceedings commenced by statement of claim, witnesses must give evidence orally

Page 13 of 27 Chapter 20 Witness Statements and Affidavits before the court,42 while at a hearing other than a trial, witnesses are to give evidence by affidavit.43 The court is, however, free to depart from its default position, for example, by ordering that part or all of a witness’s evidence at trial be given by affidavit or witness statement.44 The court’s powers to control the manner in which witnesses give evidence are found in Os 2 and 34 of the UCPR.

42 31.1(2). 43 Rule 31.2. 44 Rule 31.1(3).

20.34 Rule 2.1 of the UCPR allows the court to make any orders for the conduct of proceedings it thinks convenient for the just, quick and cheap disposal of the proceedings. This is so even if such orders are otherwise inconsistent with the rules. Rule 2.3 specifically contemplates that, in the exercise of its case management powers, the court may make orders regarding (1) the giving of evidence at any hearing, including whether evidence of witnesses in-chief must be given orally, or by affidavit or witness statement, or both and (2) the service and filing of affidavits, witness statements or other documents to be relied on.45

45 Rule 2.3(k) and (j) respectively.

20.35 The UCPR defines a witness statement as ‘a written statement of the oral evidence that the party intends to adduce in chief on questions of fact to be decided at any hearing’46 Rule 31.4 deals specifically with witness statements. It:

Page 798   (a) empowers the court to make directions for the filing and service of witness statements, including directions that statements be confined to particular questions of fact, or be given only by particular witnesses;47 (b) requires witness statements to be signed, unless the intended witness’s signature cannot be procured or the court orders otherwise;48 (c) prohibits: (i)

a party who failed to comply with a direction under r 31.4 from adducing evidence to which the direction relates without the court’s leave;49

(ii) a witness statement being put into evidence unless the witness in question gives evidence, or the court gives leave;50 (d) provides that, where a witness who has made a witness statement gives evidence and testifies to the truth of their statement, then provided the statement was duly served: (i)

the statement stands as the whole of the witness’s evidence-in-chief; and

(ii) no further evidence-in-chief may be adduced without the court’s leave;51 (e) does not deprive any party of the right to claim privilege, or make admissible evidence that is otherwise inadmissible;52 and

Page 14 of 27 Chapter 20 Witness Statements and Affidavits (f)

allows a party to apply for an order that the party not be required to comply with a direction under the rule in respect of any proposed witness or witnesses.53

46 Rule 31.4(1). 47 Rule 31.4(1) and (2). 48 Rule 31.4(3). 49 Rule 31.4(6). 50 Rule 31.4(4). 51 Rule 31.4(5). 52 Rule 31.4(7). 53 Rule 31.4(8). A notice of motion is not required.

Northern Territory

20.36 Rule 40.02 of the Supreme Court Rules (NT) mirrors r 40.02 of the Victorian rules. It provides that, subject to the rules or agreement between the parties, evidence is to be given orally in cases commenced by writ, and by affidavit in cases commenced by originating motion. Rule 40.03 empowers the court to depart from the default position set by r 40.02, and r 49.01(1) allows the court to give directions as to the conduct of trial generally.

20.37 Rule 48.25 makes provision for witness statements.54 It defines a witness statement as ‘a written statement of the evidence in chief of a witness proposed to be adduced from the witness at trial’.55 Rule 48.25 allows the court, at any directions or listing hearing at which the parties are represented by counsel or the solicitor in actual charge of their matter, to order that the parties exchange, or that one party deliver to

Page 799 another, witness statements. The court can give such directions as necessary to give effect to that order, or about the use to which the statements may be put.56

54 Although the rules in the Northern Territory are almost identical to those in Victoria, the Victorian rules have no equivalent to r 48.25. 55 Rule 48.25(5). 56 Rule 48.25(1).

20.38 A witness statement must be confined to the evidence-in-chief a witness could give at trial, and must be signed by the witness before it is filed and served.57

Page 15 of 27 Chapter 20 Witness Statements and Affidavits

57 Rule 48.25(2) and (3).

Queensland

20.39 Rule 390 of the Uniform Civil Procedure Rules 1999 (Qld) provides that, subject to the rules and any direction to the contrary, evidence at the trial of proceedings started by claim is to be given orally, while evidence in proceedings started by application is to be given by affidavit.

20.40 As in other jurisdictions, the rules empower the court to depart from the default position they establish. Rule 367(1) permits the court to make any order about the conduct of the proceedings it considers appropriate, even if the order may be inconsistent with another provision of the rules. Rule 367(3) sets out a list of orders the court might make in relation to a trial or hearing of proceedings, including (1) an order requiring evidence to be given by affidavit, orally or in some other form;58 and (2) an order requiring the parties, before the trial or hearing, to provide statements of witnesses they intend to call.59 In exercising its case management power under r 367(1), the court must give primacy to the interests of justice.60

58 Rule 367(3)(d). 59 Rule 367(3)(j). 60 Rule 367(2).

20.41 The rules do not define or otherwise make further provision for ‘statements of witnesses’.

South Australia

20.42 Rule 212 of the Supreme Court Civil Rules 2006 (SA) provides that, subject to the rules and any direction by the court, witness evidence at the trial of an action is to be given orally. In such cases, the court may require the parties to give advance notice of the oral evidence they propose to adduce from witnesses by affidavit or ‘written statement’.61

61 Rule 169(3).

20.43

Page 16 of 27 Chapter 20 Witness Statements and Affidavits Rule 168 contemplates a departure from the default position set by r 212 where the parties so agree or the court otherwise orders. In such circumstances, r 168 allows the trial of an action to proceed entirely on the basis of affidavits, without oral evidence. Each party may, however, require the other to produce its witnesses for crossexamination at trial.62

62 Rule 170(1). At least 14 days’ written notice is required.

20.44 Rule 209 empowers the court to give directions regarding the issues on which it requires evidence, the nature of the evidence it requires to decide those issues

Page 800 and the way in which the evidence is to be placed before the court. In deciding whether to exercise these powers, the court must have regard to the factors set out in r 209(3), including the need to ensure that justice is administered expeditiously and economically. Pursuant to this rule, the court might require the exchange of witness statements or outlines of evidence.

20.45 Rule 169 of the Supreme Court Supplementary Rules 2014 (SA) makes express provision for witness statements. It empowers the court to require parties, or parties to otherwise agree, to exchange written statements of their witnesses’ evidence-in-chief before trial. Rule 170(1) requires the statements to be in numbered paragraphs, with each paragraph limited to a single topic and of reasonable length. It does not specify whether or not statements are to be signed. Rule 172 provides a procedure for objecting to the contents of a written statement.

Tasmania

20.46 Rule 458 of the Supreme Court Rules 2000 (Tas) prescribes the default mode of witness evidence in Tasmania. At the trial of an action, evidence is to be given orally, and at the hearing of any application to the court or a judge in chambers,evidence is to be given by affidavit. In both cases, this is subject to any contrary agreement between the parties and save as otherwise provided.

20.47 Rule 459 allows the court to order that evidence at the trial of an action be given by affidavit, instead of orally. Where the court so orders, r 459(4) sets out a default regime for the filing and service of affidavits in advance of trial.63 Unless the court otherwise permits, a deponent cannot be the subject of cross-examination and need not attend the trial for that purpose.64

63 Rule 459(4) provides that, subject to court order, the party having conduct of the proceedings file any affidavit on which that party intends to rely within 14 days of an order that evidence at the trial of an action be given by affidavit.The

Page 17 of 27 Chapter 20 Witness Statements and Affidavits opposite party then has 14 days to file affidavits on which it will reply, and the first party seven days from that day to file any affidavit in reply. 64 Rule 459(3).

20.48 Rule 415 allows the court, at a directions hearing, to make any order it thinks necessary to ensure the proceedings are resolved justly and efficiently, even if that order is inconsistent with any other provision of the rules.65 Rule 415 contemplates that the court may require the filing and service of witness lists and statements.66 No further reference is made in the rules to witness statements or to witness outlines.

65 Rule 415(4A)(a). 66 Rule 415(4A)(g).

Victoria

20.49 Rule 40.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that, save where otherwise provided and subject to any agreement between the parties, evidence shall be given: (a)

on an interlocutory or other application, or at the trial of a proceeding commenced by originating motion, by affidavit;

Page 801   (b)

at the trial of a proceeding commenced by writ, orally;

(c)

at the trial of a proceeding commenced by originating motion, by affidavit.

20.50 Rule 40.03 empowers the court to depart from the default position established by r 40.02. The court may order that evidence is to be given orally where affidavits would otherwise be required, or by affidavit in cases where oral evidence would otherwise be given. If the court requires oral evidence to be given when affidavits would otherwise be used, it may direct the party on whose application oral evidence is to be led to give such notice as it thinks fit to the other parties of the oral evidence that party proposes to adduce. If the court requires affidavit evidence in place of oral testimony, it may order that the deponent attend trial to be examined or, alternatively, that his or her attendance be dispensed with.67

67 Rule 40.03(3).

Page 18 of 27 Chapter 20 Witness Statements and Affidavits

20.51 The rules in Victoria do not make any reference to witness statements or outlines of evidence. Section 49(1) of the Civil Procedure Act 2010(Vic) empowers courts to make any direction or order they consider appropriate to further the overarching purpose68 in relation to the conduct of a hearing in a civil proceeding.69 Section 49(3)(j) of that Act envisages that, in exercising that power, a court may give a direction with respect to ‘evidence,including, but not limited to whether evidence-in-chief should be given orally, by affidavit or by witness statement’. The term ‘witness statement’ is not defined by the Act, nor any provision made as to its form or content.

68 As to which, see s 7 of the Act. The overarching purpose of the Act and rules of court is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. 69 Section 49.

20.52 The Supreme Court of Victoria’s Practice Note SC CC 1, re-issued on 21 December 2017, sets out the circumstances in which the Commercial Court division might order witness statements or outlines in place of oral evidence and the form such statements or outlines ought take. It relevantly states:70 Evidence in chief at trial may be led orally or in writing, at the direction of the List Judge (and subject to any further order at trial). A party seeking to utilise a Witness Statement for the purpose of leading evidence in chief will be required to satisfy the List Judge that this course will better achieve the Overarching Purpose than if evidence were to be given orally in the usual way. Generally, the use of a Witness Statement will not be appropriate where contentious evidence is to be given of facts dependent on the recollection of the witness or where the credit of the witness is likely to be challenged on the topic. The List Judge may order that Witness Statements be provided by only some witnesses, or that only part of the evidence in chief of a witness be provided by way of Witness Statement. A Witness Statement is, in written form, the evidence that a witness would otherwise give orally and, subject to any contrary order, will, when adopted,stand as the evidence in chief of the witness. …

Page 802   A Witness Outline must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation. Where a Witness Outline is ordered,the List Judge may also order that no party may use any part of the contents of that document for the purpose of cross-examining the witness without leave of the List Judge. Each Witness Statement and Witness Outline must be provided to all parties and to the List Judge in electronic format. Practitioners who draft a Witness Statement or a Witness Outline should bear in mind that, unless it is written in the witness’s own words, such a document is unlikely to assist either the Court or the witness.

Page 19 of 27 Chapter 20 Witness Statements and Affidavits

70 Supreme Court of Victoria Practice Note SC CC 1, [15.12]–[15.14], [15.18]–[15.21].

20.53 Schedule 7 to the practice note contains a typical form of order for witness outlines.71 Schedule 8 contains the typical form of order for witness statements.

71 Template order 10 in Schedule 7 provides that each witness outline must satisfy the following three conditions: (a) it should be set out in numbered paragraphs; (b) it should be a brief outline of the evidence the witness will give; and (c)it must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation.

Western Australia

20.54 The default position with respect to witness evidence at trial in Western Australia is set by r 1 of O 36 of the Rules of the Supreme Court 1971 (WA). It reads: Subject to these rules and to the provisions of the Evidence Act 1906, and any other Act relating to evidence, any fact required to be proved at the trial of any action by the evidence of witnesses shall be provided by the examination of the witnesses orally and in open court.

20.55 Rule 2 of O 36 allows the court to depart from the default position by ordering, before or at the trial or hearing of an action, that evidence be given by affidavit if the court thinks that reasonable in all the circumstances. Such an order may be made on conditions, including as to the filing and service of affidavits and the production of the deponents for cross-examination.

20.56 In proceedings commenced by originating summons, originating motion or petition, the rules provide that evidence may be given by affidavit.72

72 Order 36 r 2(3).

20.57

Page 20 of 27 Chapter 20 Witness Statements and Affidavits Rule 2 of O 4A of the rules empowers the court to make any directions it thinks just to facilitate the case management objectives set out in r 4B of O 1, including without limitation, a direction that the parties serve signed written statements of the proposed evidence-in-chief of each witness they intend to call and a direction that such statements, or any part of them, stand as the evidence-in-chief of those witnesses.73

73 Rule 2(2)(s) and (t).

20.58 The rules do not otherwise make provision for witness statements or outlines. Section 4.5 of the Supreme Court’s Consolidated Practice Directions, however, sets

Page 803 out in some detail the court’s general practice with respect to such statements.74 Amongst other things, the practice direction provides:75 Where witness statement orders have been made,76 the practice at the trial will ordinarily be as follows: (a)

The witness will be called and asked to identify himself or herself, and also the statement concerned. The Judge will then ask the opposing counsel whether there are any objections to any parts of the statements.

(b)

All objections will be dealt with, and where an objection is successful, the witness will be requested to delete the inadmissible material from the statement.

(c)

The statement will then be tendered and admitted as an exhibit.

(d)

The trial Judge will determine whether or not the statement will be read aloud by the witness.

(e)

Leave to adduce supplementary oral evidence will be granted when such evidence: (i) explains, elaborates, or otherwise clarifies matters already referred to in the statement; or (ii) deals with matters that have been deleted from the statement because they have been held to be inadmissible by reason of the form in which they appear in the statement; or (iii) deals with new or further matters which could not reasonably have been included in the witness’s written statement or a supplementary written statement; or (iv) is consented to by every party to the proceedings.

(f)

In determining whether leave should be given to supplement a written statement by oral evidence on any of the grounds referred to in subparagraph (e), a flexible attitude will be adopted by the trial Judge so that there should be no need for exhaustive drafting of witness statements designed to achieve pedantic accuracy.

(g)

Leave to adduce supplementary oral evidence, not falling within the categories referred to in subparagraph (e) above, will be granted when the admission of such evidence is required in the interests of justice. In deciding whether to grant leave on this ground, account will be taken of any notice which has been given of the new evidence, prior to the trial, so as to avoid the other party or parties being taken by surprise.

(h)

Unless otherwise ordered, when a signed witness statement is exchanged, but not ordered to stand as evidencein-chief: (i) cross-examination on the exchanged statement shall be allowed; (ii) a party may refer to that statement in opening the case; and (iii) a party may put the statement or any part of it to any witness in cross examination.

Page 21 of 27 Chapter 20 Witness Statements and Affidavits

Page 804

74 See also the excellent guide to the preparation of witness statements in Western Australia, published by the Western Australian Bar Association: Western Australian Bar Association, ‘Preparing Witness Statements for Use in Civil Cases:Best Practice Guide’ (2011), available online at (accessed 18 February 2018). 75 Supreme Court of Western Australia Consolidated Practice Direction, 4.5, [11]. 76 See PD 4.1.2.2, [40]–[49] for template orders regarding witness statements.

20.59 Practitioners involved in the preparation of witness statements in Western Australia should pay close attention to the requirements of the Western Australian Bar Association’s best practice guide, ‘Preparing Witness Statements for Use in Civil Cases’. The practitioner most responsible for the preparation of a witness statement will ordinarily be required to certify that the statement was prepared in accordance with that best practice guide, by filing with the witness statement a signed certificate to that effect.77

77 Supreme Court of Western Australia Consolidated Practice Directions at 4.1.2.2, [43(g)].

Order in which statements are to be served

20.60 The obligation to exchange witness statements or outlines arises only as a result of a court order, and the content of the obligation is largely defined by it. The order will address the sequence in which statements or outlines are to be served.78

78 The template orders in Western Australia and the Commercial Court division of the Supreme Court of Victoria provide for the plaintiff to file and serve its witness statements first, followed by the defendant. The rules in New South Wales leave the position at large.

20.61 It has been suggested that the simultaneous exchange of witness statements is the most sensible approach, because it reduces the risk that statements might be manipulated or engineered to fit what other witnesses have already said.79 The matter is in the court’s discretion, however, and good case management may in particular situations justify a different order. In Walter v Buckeridge (No 3), Le Meire J opined:80 There is sometimes a contest over the order in which witness statements are to be exchanged. Should the witness statements be exchanged simultaneously or sequentially? If sequentially, who should go first? The model directions contained in the consolidated practice directions provide for the plaintiff to file and serve its witness statements first, to be followed by the defendant filing and serving its witness statements and then the plaintiff to file and serve any witness statement that is purely responsive to any witness statement served by the defendant. In most cases it will be convenient for the plaintiff to file its witness statements first because the plaintiff will carry the onus of proof on most issues and will be

Page 22 of 27 Chapter 20 Witness Statements and Affidavits putting forward a positive case on most issues. However, each case must be considered according to its own circumstances. There will be cases where it is appropriate that witness statements be exchanged simultaneously. There will be cases where it is appropriate for the defendant to file its witness statements first. There may be cases where it is appropriate for witness statements to be served first by one party on some issues and then by the other party on other issues. In each case in determining the appropriate sequence for exchanging witness statements the discretion of the court will be informed by the objectives of fairness, economy, simplicity, speed and certainty. … The simplest and most expeditious procedure is to require both parties to simultaneously exchange all of their witness statements. This means that neither party will have the advantage of seeing the other side’s witness statements before preparing their own. The proposition that a party should receive the witness statements of the party who

Page 805   bears the onus of proof on an issue before delivering his or her witness statements on that issue implies that the party who goes second has the right to be informed of the evidence of the other party’s witnesses before completing and delivering his or her witness statements. I do not think that is correct. The pleadings and particulars define the issues and inform each party of the case he or she has to meet. Discovery and inspection further limits a party being taken by surprise at trial. A party calling a witness does not have a right to know the evidence that will be led against him or her by the other party before preparing or serving the witness statement even where the other party bears the onus of proof on an issue. In any event, the advantage in seeing the other side’s witness statements before writing your own is usually minor.

79 Rayment v Ministry of Defence (1998) 47 BMLR 92 (UK); Walter v Buckeridge (No 3) [2010] WASC 68 at [18]

.

80 [2010] WASC 68 at [16], [18].

Changes to witness statements

20.62 The rules are silent on whether a witness statement can be changed after it has been signed or otherwise filed and served, but before the trial of the matter. It is submitted that such changes should be permitted, and effected as soon as practicable before trial and, preferably, prior to the time any statements in reply are due to be filed. There are two alternatives to this course. First, that the statement remains unchanged and no longer accurately captures the whole of the evidence the witness wishes to give. Secondly, that the party calling the witness seeks leave to adduce supplementary oral evidence from the witness at trial. Both options are undesirable in that either the witness’s evidence is inaccurate, or that the changes to that evidence are brought to the parties’ attention too late to allow for adequate preparation or to avoid surprise.

20.63 Where the change is minor, the party should notify the other parties of the proposed change of testimony and inform them that the witness will be asked to explain the change during her or his oral testimony. If the change is substantial, the party should instead serve a supplementary witness statement explaining the reasons for the change. A party who fails to notify the other parties that the witness would be asked to deviate substantially from their statement may not be allowed to do so at the trial if the decision is allowed and risks adverse costs

Page 23 of 27 Chapter 20 Witness Statements and Affidavits consequences if an adjournment is required as a result.

Failure to serve witness statement

20.64 The rules in each jurisdiction are, for the most part, silent on the consequences of failing to serve a witness statement when so ordered. In New South Wales, r 31.4 of the UCPR provides that if a party fails to comply with an order regarding witness statements, no evidence may be adduced from the witness to whom the failure relates, except by leave of the court.In Western Australia, the position is the same. The Consolidated Practice Directions provide that no party may adduce evidence from any witness whose statement has not been served in accordance with an order.81

81 PD 4.1.2.2, [48].

20.65 Although the rules in other jurisdictions do not expressly address the point, it is expected that courts would be reluctant to allow a party who had failed to serve a witness statement the opportunity to call oral evidence from the witness or witnesses

Page 806 to whom the failure relates at trial. To readily permit such a course would defeat the purpose of ordering witness statements in the first place. The failure to serve a statement denies other parties the opportunity to investigate the witness’s evidence and prepare a challenge to it. Although any prejudice may be capable of being overcome by an adjournment and an order for costs, it is precisely this vice that the pre-trial exchange of witness evidence is supposed to prevent.82

82 On the question of adjournments at trial generally, see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

.

20.66 In cases where a party apprehends it may not be able to comply with an order requiring it to file and serve statements because of the failure of a witness to cooperate, the party should, before the expiry of the time for compliance, apply to serve a witness outline instead identifying the topics on which the witness will be invited to testify, together with an overview of the evidence they are expected to give.83

83 In Victoria, the practice where a witness is not willing to provide a statement is to nevertheless file and serve a statement, setting out the substance of the evidence which the party expects that witness to give and will be entitled to lead oral evidence-in-chief from that witness: Schedule 8 of Supreme Court of Victoria Practice Note SC CC 1, [13].

Use of witness statements at the trial

Page 24 of 27 Chapter 20 Witness Statements and Affidavits

20.67 Witness statements have two functions. The first consists in giving the court and other parties advance notice of the evidence-in-chief that a party is proposing to adduce at the trial. The second is to create the evidence-in-chief itself.This section is concerned with the latter function.

Witness statement as evidence-in-chief

20.68 Subject to a witness adopting the contents of their witness statement under oath or affirmation at trial, that statement will ordinarily stand as their evidence-in-chief.84 This is a matter in the court’s discretion, however, and the court may call upon the witness to testify orally if it thinks necessary.85 This is part and parcel of the courts’ power to control evidence.

84 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 31.4(5)(a); Supreme Court of Victoria Practice Note SC CC 1, [15.14];Supreme Court of Western Australia Consolidated Practice Directions 4.1.2.2, [47(b)]. 85 See, for example, Supreme Court of Victoria Practice Note SC CC 1, Schedule 8, [20].

Witness expanding on statement

20.69 Parties require leave before they can adduce further evidence-in-chief from witnesses who have given witness statements.86 The Consolidated Practice Directions in Western Australia provide a useful overview of the factors courts will consider in determining whether to grant leave. It provides that: (a)

leave will be granted when such evidence:

Page 807  

(i) explains, elaborates, or otherwise clarifies matters already referred to in the statement; or (ii) deals with matters that have been deleted from the statement because they have been held to be inadmissible by reason of the form in which they appear in the statement; or (iii) deals with new or further matters which could not reasonably have been included in the witness’s written statement or a supplementary written statement; or (iv) is consented to by every party to the proceedings. (b)

In determining whether leave should be given on any of the above grounds, a flexible attitude will be adopted by the trial Judge so that there should be no need for exhaustive drafting of witness statements designed to achieve pedantic accuracy.

(c)

In other cases, leave will be granted when the admission of such evidence is required in the interests of justice and that, in deciding whether to grant leave on this ground, account will be taken of any notice which has been given of the new evidence, prior to the trial, so as to avoid the other party or parties being taken by surprise.

Page 25 of 27 Chapter 20 Witness Statements and Affidavits

Leave will not be given in all cases.87

86 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 31.4(5); Supreme Court of Victoria Practice Note SC CC 1, [15.26]; Schedule 8, [23]; WA PD 4.5, [11]. 87 See generally Ketteman v Hansel Properties Ltd [1987] AC 189 (1991) 32 FCR 379; 104 ALR 165 [2004] NSWSC 1219 at [49]–[65] 175

; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd

; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd ; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR

.

Failure to call the witness to testify

20.70 A party serving a witness statement is not irrevocably committed to calling the witness at trial. The party has two other options: seeking permission to rely on the witness statement without calling the witness, or declining to rely on the witness altogether.

Declining to call a witness

20.71 A party may choose not to call a witness and not to rely on his or her evidence at trial, notwithstanding having filed and served a statement of that witness’s proposed evidence. In such a case, it is good practice to give timely notice to the other parties of that decision. It is conceivable that the failure to give timely notice may attract costs sanctions, particularly if there is no satisfactory explanation for the failure to give such notice and costs have been wasted as a result.

Seeking permission to rely on witness statement

20.72 Courts do not ordinarily admit a witness statement into evidence until it is adopted by the witness at trial. The content of a witness statement is prima facie hearsay and inadmissible under the Evidence Acts.88

88 See Uniform Evidence Acts s 59.

20.73 There are two main exceptions to the hearsay rule, pursuant to which a party may be able to tender a witness statement without having to call the witness who made

Page 808

Page 26 of 27 Chapter 20 Witness Statements and Affidavits that statement. The first exception applies where the witness has become ‘unavailable’ after having made the witness statement.89 The onus of establishing the unavailability rests on the party seeking to rely on the statement.90 The second exception applies where the witness is available, but calling them is not reasonably practicable or would otherwise cause undue expense or delay.91 Even if an exception to the hearsay rule does apply, the court is not required to admit the statement into evidence. It retains the discretion to exclude the statement in its entirety or otherwise limit the use to which it can be put, having regard to the probative value of the statement and any prejudice that might be caused by its admission in circumstances where it cannot be tested by cross-examination.92

89 See Uniform Evidence Acts s 63; Lane v Jurd (No 2) (1995) 40 NSWLR 708; [1996] NSWSC 5 (where the maker of the statement was deceased); Longhurst v Hunt [2004] NSWCA 91 Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769

(8 January 1996)

; Tim Barr Pty Ltd v Narui

.

90 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769

.

91 See Uniform Evidence Acts s 64. 92 See Uniform Evidence Acts ss 135–136 respectively. Section 135 allows the court to refuse to admit evidence if its probative value is substantially outweighed by the danger the evidence might be unfairly prejudicial to a party, misleading or confusing or cause or result in an undue waste of time. Section 136 allows a court to limit the use which may be made of evidence if there is a danger that a particular use might be unfairly prejudicial to a party or misleading or confusing.

Use of witness statements by other parties

20.74 The rules in most jurisdictions are silent on what use, if any, parties may make of a witness statement with which they have been served, but on which the party who served the statement does not ultimately seek to rely at trial. In New South Wales and Western Australia, no party may put the statement into evidence without leave of the court.93 In Victoria, a party may refer to or use the contents of a witness statement (or outline) served by another before it is adopted by the intended witness, but only for the purposes of the proceedings. The position will ordinarily depend on the terms of the order providing for the exchange of witness statements and the rules of evidence.

93 Uniform Civil Procedure Rules 2005 (NSW) r 31.4(4); Supreme Court of Western Australia Consolidated Practice Directions 4.1.2.2,[46] (cf Supreme Court of Victoria SC CC 1, [15.23]).

Restriction on other uses of witness statements

20.75 Third parties do not, by and large, have any obligation to provide parties to civil litigation with information relevant to matters the subject of that litigation, let alone to make witness statements. While such persons are duty bound to respond to a subpoena requiring them to give evidence at trial, any assistance they give to the parties before trial is entirely voluntary.

20.76

Page 27 of 27 Chapter 20 Witness Statements and Affidavits It is in the interests of justice to encourage witnesses to come forward, to inform parties of any relevant facts, and to provide witness statements. If the parties were free to use witness statements other than for the purposes of the proceedings

Page 809 in which the statement is given, regardless of whether the witness was called and regardless of whether his or her statement was used at the trial, witnesses would be discouraged from coming forward. Where a witness has not given written permission for a collateral use, the statement must be confined to ‘the purposes of the proceedings in which it is served’ unless the court orders otherwise.94 Where the witness is not ultimately called to give evidence, limits may also be imposed on the use of their statements in the proceedings itself.95 Once a witness has testified in public, his or her evidence enters the public domain.

94 Harman v Secretary of State for the Home Department [1983] 1 AC 280

; Hearne v Street (2008) 235 CLR 125

. See also Supreme Court of Victoria Practice Note SC CC 1, [15.24]. 95 See Uniform Civil Procedure Rules 2005 (NSW) r 31.4(4); Supreme Court of Western Australia Consolidated Practice Directions 4.1.2.2,[46] (cf Supreme Court of Victoria SC CC 1, [15.23]).

End of Document

Chapter 21 Experts Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 21 — Experts

Chapter 21 Experts Page 811 [Current to May 2018]

Expert evidence Introduction

21.1 Expert evidence is opinion evidence provided by a person who is sufficiently qualified to express an opinion to the court on an issue to be determined by the court such that the opinion is admissible in evidence. An increase in the use of expert evidence in civil litigation has exposed a number of issues, leading many to conceive of ways to safeguard its quality and maximise the efficiency of its obtainment and reliability. An increase in the significance of expert evidence correlates with ‘the explosion in specialisation across all professional disciplines’ and, of course, the rising complexity of civil litigation generally.1

1

M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 168.

21.2 Expert evidence was a cause of much unnecessary cost and delay under the old system of civil procedure, due to a fierce culture of partisanship that permeated the use of experts in litigation.2 Experts tended to act more like the champions of the retaining party rather than as independent witnesses whose duty it was to assist the court to determine the truth. These experts would adopt the case of their retaining party and tailor their opinions to match it. As a consequence, litigants felt obliged to match their opponent’s experts in number and qualifications. So it was that the procedure for expert evidence enabled adversarial litigants to retain ‘hired guns’

Page 812 rather than objective experts.3 Litigation involving experts could therefore generate enormous costs, at times without assisting the court to decide the issues due to the experts’ doubtful independence.

2

See Chapter 1, 1.1 ff for an account of the shortcomings of the Old System. For an account of some of the problems experienced in Australian jurisdictions with respect to expert evidence, see Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, pp 407–18.See also Lord Woolf MR, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice Inquiry, Interim Report), 1995, Ch 23; and Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice

Page 2 of 44 Chapter 21 Experts System in England and Wales (Access to Justice Inquiry, Final Report), 1996, Ch 13. For further discussion, see L Blom-Cooper, ‘Experts and Assessors: Past, Present and Future’ (2002) 21 Civil Justice Quarterly 341. For an early judicial attempt to improve the use of experts in litigation, see Compagnia Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68; and Vernon v Bosley [1997] 1 All ER 614 (CA). 3

K Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92 Australian Law Journal 32 at 36 and 46; E Baskind, ‘The Expert Witness in England and Wales: The End of the “Hired Gun”? An English Perspective’ (2001) 15 International Review of Law, Computers & Technology 229.

21.3 Any model of court management of experts, including concurrent evidence, is not without its inherent flaws and limitations. It is sometimes thought because of this that it would be best to adopt a system of specialist courts, rather than refining a system of expert evidence that is inherently flawed. While such courts may reduce many of the problems associated with expert evidence, the establishment of specialist courts is only justified where there is a high demand for adjudication involving a specific body of expertise. As a perfect system of adjudication on issues of specialist expertise seems asymptotically impossible, the best approach is through active case management of experts in the light of the overriding objective outlined in Chapter 1, 1.40 ff.

21.4 In an attempt to address these shortcomings, most Australian jurisdictions have adopted a combination of three important measures. First, in the majority of jurisdictions, the use of experts in litigation is placed under the control of the court.4 In these jurisdictions, no party may rely on expert evidence without the court directing the parties to provide it.5 The court controls, therefore, the appointment of experts and the management of expert evidence. Secondly, an expert’s primary duty is to help the court arrive at a correct decision on matters within their expertise, rather than advance one or other of the parties’ causes.6 Lastly, the rules in some jurisdictions seek to promote party cooperation in the employment of experts, sometimes before the start of proceedings, and to encourage the use of joint experts wherever possible.7

Page 813

4

Court Procedures Rules 2006 (ACT) r 1200(a); Civil Procedure Act 2005 (NSW) Sch 3 item 25, Uniform Civil Procedure Rules 2005 (NSW) r 31.17 expressly provides for this; Supreme Court Act 1935 (SA) s 72(1)(c); Supreme Court Civil Rules 2006 (SA) r 213; Supreme Court Rules 2000 (Tas) r 415(3) and (4A); Civil Procedure Act 2010 (Vic) ss 65F and 65H.

5

Uniform Civil Procedure Rules 2005 (NSW) rr 31.19 and 31.20; Uniform Civil Procedure Rules 1999 (Qld) r 427(2)(b); Supreme Court Rules 2000 (Tas) r 515(1)(b);Civil Procedure Act 2010 (Vic) s 65G; Rules of the Supreme Court 1971 (WA) Os 2(ia) and 36A(1). A party is not required to obtain a direction before seeking to use expert evidence under the Federal Court Rules 2011 (Cth); Supreme Court Civil Rules 2006 (SA).

6

Federal Court Rules 2011 (Cth) r 23.13(1)(b); Expert Evidence Practice Note paras 2.2, 4.1, and 5, Harmonised Expert Witness Code of Conduct para 2; Court Procedures Rules 2006 (ACT) r 1203(1), Sch 1 Expert Witness Code of Conduct para 1.2(1); Uniform Civil Procedure Rules 2005 (NSW) r 31.23, Sch 7 Expert Witness Code of Conduct para 2; Supreme Court Rules (NT) r 44.03, Practice Direction 6 of 2015 para 3, Code of Conduct para 2; Uniform Civil Procedure Rules 1999 (Qld) rr 426 and 428(3)(e); Supreme Court Civil Supplementary Rules 2014 (SA) r 156, Practice Direction 5.4 para 5.4.3; Supreme Court Rules 2000 (Tas) rr 514, 515, and 516; Expert Witness Code of Conduct (Tas) para 2; Civil Procedure Act 2010 (Vic) s 65F(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 44.03(1)(b), Form 44A Expert Witness Code of Conduct para 2. Oddly, there is no code of conduct for expert witnesses in Western Australia but, anecdotally, a practice has formed whereby practitioners provide Western Australian expert witnesses with a copy of the Federal Court Expert Evidence Practice Note.

7

Federal Court Expert Evidence Practice Note para 6; Court Procedures Rules 2006 (ACT) r 1200(e); Uniform Civil Procedure Rules 2005 (NSW) r 31.37 ; Uniform Civil Procedure Rules 1999 (Qld) rr 429G(1), 429H(6) and 429R,

Page 3 of 44 Chapter 21 Experts Practice Direction 2 of 2005, para 4; Supreme Court Civil Supplementary Rules 2014 (SA) r 20(6)(a);Civil Procedure Act 2010 (Vic) ss 65H(1)(f)(i) and 65L. In England, the approach to experts in the Civil Procedure Rules widely reflect Lord Woolf’s recommendations in his Access to Justice Reports. Australia has drawn inspiration from Lord Woolf’s recommendations and the Civil Procedure Rules. This makes Lord Woolf’s reports valuable aids in understanding Australian court rules that have implemented his Lordship’s recommendations. See, for example, ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284; [2004] CP Rep 9 at [14]. It should be noted, however,that Sir Rupert Jackson found in his Report on Civil Litigation Costs that, despite the Woolf Reforms, expert evidence was still leading to unnecessary costs being incurred: Sir Rupert Jackson, Review of Civil Litigation Costs,Preliminary Report, 2009, pp 379–80. Nonetheless, he was of the view that active case management was the best means of controlling the costs of expert evidence and avoiding waste. To this end, he recommended that parties who seek permission to adduce expert evidence should provide an estimate of the costs of the expert evidence in order to assist the court in its task of case and costs management: Review of Civil Litigation Costs, Preliminary Report, 2009, p 384. This recommendation is now reflected in England and Wales in r 35.4(2), which requires the parties to provide an estimate of the costs of the proposed expert evidence when applying for permission to call expert evidence. This has not been widely adopted in Australia: Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 2014, Vol 1, pp 407–18.

General exclusion of opinion evidence

21.5 Traditionally, a judge would only form a judgment by applying the law to the facts. This is reflected by the general rule that opinion evidence is excluded to ensure that the court’s fact-finding role is not usurped by a witness.8 While ‘opinion’ is not clearly defined in the law of evidence, it has been held to refer to ‘an inference drawn or to be drawn from observed or communicable data’,9 an inference drawn from facts,10 or ‘a conclusion, usually judgmental or debateable, reasoned from facts’.11 The general rule developed from the common law rule that lay witnesses must speak only to that which was directly observed by them.12 Lay witnesses are allowed to testify to facts but not to their opinions; it is not for the witness but for the court to draw inferences from the facts stated by the witness.13 As Barwick CJ explained in Weal v Bottom, the evidence given by a witness as to their own experience and observations ‘is not the expression of an opinion’.14

Page 814

8

Evidence Act 1995 (Cth) s 76(1); Evidence Act 2011 (ACT) s 76(1); Evidence Act 1995 (NSW) s 76(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 76(1); Evidence Act 2001 (Tas) s 76(1); Evidence Act 2008 (Vic) s 76(1). In Queensland, South Australia and Western Australia, the opinion rule and its exceptions are governed predominantly by the common law. For the common law position, see Adams v Canon (1621) Ley’s KB Rep 68; 73 ER 117 per Lord Coke; R v Camm (1883) 1 QLJ 136 per Harding ACJ; Clark v Ryan (1960) 103 CLR 486 at 491

per Dixon CJ; R v

Perry (No 4) (1981) 28 SASR 119 at 123

per King CJ; R W

per Cox J; R v Bonython (1984) 38 SASR 45 at 46

Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130 9

per Giles J.

Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75 Council v Jackson (2011) 244 CLR 352 at 359; [2011] HCA 36 at [10]

10 Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424 at [40]

per French CJ, Heydon and Bell JJ. .

11 RW Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129 at 130 Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424 at [40] 12 Clark v Ryan (1960) 103 CLR 486 at 491 Parker (No 2) [1973] Qd R 499 at 509 13 Mattioli v Parker (No 2) [1973] Qd R 499

per Lindgren J; Lithgow City

per Giles J, which was cited in

per Lindgren J.

per Dixon J, citing Carter v Boehm (1876) 1 Smith LC 577; Mattioli v

. .

Page 4 of 44 Chapter 21 Experts 14 Weal v Bottom (1966) 40 ALJR 436 at 438–9

per Barwick CJ.

21.6 In a sense, virtually all factual reports also express opinions. A witness who testifies that he or she saw a person crossing the street, expresses an opinion or conclusion that is derived from seeing someone wearing the person’s clothes,walking like the person, and looking like the person crossing the street.15 Arguably, this means the opinion rule excludes evidence that either lacks sufficient probative value or conclusions that should be left to the court.16 The Uniform Evidence Acts contain an exception to the general rule to allow lay opinions if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and the evidence is necessary to obtain an adequate account of the understanding of the person’s perception of the matter or event.17

15 Thayer observed that ‘[i]n a sense all testimony to matter of fact is opinion evidence; i.e. it is a conclusion formed from phenomena and mental impressions’. J B Thayer, A Preliminary Treatise on Evidence at the Common Law, Little, Brown, Boston, 1898, p 524. See also Wigmore on Evidence, Chad Rev, Vol 7, s 1919, 1978. 16 P Roberts and A Zuckerman, Criminal Evidence, 2nd ed, Oxford University Press, Oxford, 2010, p 139. 17 Evidence Act 1995 (Cth) s 78(1); Evidence Act 2011 (ACT) s 78(1); Evidence Act 1995 (NSW) s 78(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 78(1); Evidence Act 2001 (Tas) s 78(1); Evidence Act 2008 (Vic) s 78(1). There are other exceptions in the Uniform Evidence Acts.

21.7 The rule that a witness must confine their testimony to fact and avoid opinion means that a lay witness must only give an accurate factual statement of the relevant event. In Hodgson v Amcor Ltd,18 for example, the witness statement from a forensic computer specialist was sought to be admitted in relation to the facts and circumstances surrounding the execution of an Anton Piller order. The evidence sought to be provided in the witness statement contained details of the workings of a complex computer in relation to what was stored on its hard drive. Also described in the statement was an account of what the witness personally did and observed in relation to the information derived from the hard drives of computers seized during execution of the search order. Vickery J noted that the witness did not arrive at or form any conclusions, or make any judgments by a process of reasoning from the facts that he observed.19 For this reason, the evidence was held not to be opinion evidence and so it was admitted.

18 Hodgson v Amcor Ltd [2011] VSC 272

. See also Allstate Life Insurance Co v Australia & New Zealand Banking

Group Ltd (No 5) (1996) 64 FCR 73 at 75

per Lindgren J; Australian Securities and Investments Commission v

Vines (2003) 48 ACSR 291; [2003] NSWSC 1095 at [20]

per Austin J; Castel Electronics Pty Ltd v Toshiba

Singapore Pte Ltd (2011) 192 FCR 445; [2011] FCAFC 55 at [203] 19 Hodgson v Amcor Ltd [2011] VSC 272 at [50] per Dixon J.

21.8

.

per Vickery J; see also Clark v Ryan (1960) 103 CLR 486 at 490–1

Page 5 of 44 Chapter 21 Experts This is to be compared with Commonwealth Bank v Iinvest (No 3),20 in which it was held that the evidence from a lay witness that a sale was made under duress and that the duress caused an immediate capital loss, was inadmissible as opinion evidence. Campbell J reasoned that: … there is an area of operation for common sense in these matters and anyone with any experience of life would appreciate that sale under duress is likely to yield a lower price

Page 815   than one in favourable market conditions … Couched at that level of generality, I think this is a matter about which one does not need opinion evidence.21

20 Commonwealth Bank v Iinvest (No 3) [2017] NSWSC 433

.

21 Commonwealth Bank v Iinvest (No 3) [2017] NSWSC 433 at [8] CLR 486 at 491; [1960] ALR 524 at 526

per Campbell J;see also Clark v Ryan (1960) 103

; Mattioli v Parker (No 2) [1973] Qd R 499

.

21.9 We may, therefore, conclude that the rationale behind the inadmissibility of opinion evidence does not rest on a sharp distinction between statements of fact and statements of opinion but on a more blurred distinction between statements about facts that are too general to be useful as evidence and statements of fact that are sufficiently detailed or concrete to be of real assistance in the determination of the issues.22

22 See J H Wigmore, Evidence in Trials at Common Law, Chadbourn rev, 1978, Vol 7, [1917]–[1918]; J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney,2014, [29001].

Admissibility of expert opinion evidence

21.10 As an exception to the traditional rule excluding opinion evidence, the court may accept the opinions and conclusions of experts on matters that require specialised knowledge or training which the court does not possess.23 It follows that experts are in a unique position to create facts and influence the direction of litigation. This reliance on expertise fundamentally shifted the paradigm of the reasoning process of the decision-maker from one based on pure fact to one based in fact and specialist expertise. A court will now, assuming admissibility and credibility, rely to some degree on expert evidence when formulating judgment on the merits. Ex hypothesi, the increasing judicial reliance on experts correlates to the increased role of experts in the litigation process.

23 Evidence Act 1995 (Cth) s 79(1); Evidence Act 2011 (ACT) s 79(1); Evidence Act 1995 (NSW) s 79(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 79(1); Evidence Act 2001 (Tas) s 79(1); Evidence Act 2008 (Vic) s 79(1). In Queensland, South Australia and Western Australia, the admissibility of expert opinion evidence is largely left to the

Page 6 of 44 Chapter 21 Experts common law. For the common law position, see Buckley v Thomas (1554) 1 Pl Com 118 at 124 per Saunders J; Folkes v Chadd (1782) 3 Doug KB 157 at 160 per Lord Mansfield; Clark v Ryan (1960) 103 CLR 486 at 491 Weal v Bottom (1966) 40 ALJR 436

; R v Bonython (1984) 38 SASR 45 at 46

per Dixon J;

per King CJ; Murphy v R (1989)

167 CLR 94; 86 ALR 35; [1989] HCA 28 ; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA. See also D Dwyer, ‘Expert Evidence in the English Civil Courts, 1550-1800’ (2007) 28 Journal of Legal History 93; J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29005]. For English authority, see United States Shipping Board v Ship St Albans [1931] AC 632 ; esure Insurance Ltd v Direct Line Insurance plc [2008]EWCA 842 at [62],[82]; Samuel Smith Old Brewery (Tadcaster) v Lee(t/as Cropton Brewery) [2011] EWHC 1879 (Ch) at [15]–[18]

; Zeid v Credit Suisse [2011] EWHC 716 (Comm); Marks & Spencer plc v Interflora Inc and

Interflora British Unit [2012] EWCA Civ 1501 at [50]

.

21.11 For instance, a court cannot be expected to form a well-founded view concerning the nature of personal injuries and their likely effect without the assistance of medical practitioners. Similarly, in litigation involving scientific or technical issues, a court may be unable to understand the dispute without the assistance of persons with sufficient background knowledge in a recognised field of expertise.

Page 816

21.12 For expert opinion evidence to be admissible, there are a number of requirements that must be met. These are:24 1. as a general rule at common law, the expert must not opine on the ultimate issue to be decided by the court. However, in those jurisdictions in which the Uniform Evidence Act applies, this rule has been abolished;25 2. at common law, the evidence to be provided by the witness must not be something that the court is able to determine from its own general knowledge and common sense;26 3. the witness must demonstrate competency as an expert by: (a) giving evidence with respect to a recognised field of expertise; (b) having specialised training, study or experience such that the witness is an expert in the relevant recognised field of expertise; and 4. there must be evidence admitted that is consistent with the facts or assumptions relied on by the expert.

24 for more detail, see J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29045]. 25 Uniform Evidence Act s 80(a). For the uncertainty surrounding this rule, see 21.14 ff. 26 Likewise, this rule has been abolished under those jurisdictions in which the Uniform Evidence Act applies: s 80(b).

Expert opinion on ultimate issues

21.13

Page 7 of 44 Chapter 21 Experts It is sometimes said that an expert may not offer an opinion on the ultimate issue to be decided by the court.27 However, the rule appears not so much a prohibition on expert opinion on an ultimate issue, as a policy against allowing experts to testify to matters that either the court is perfectly competent to judge or are irrelevant to the issues in dispute.28

27 Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 at 270

per Aikin J; see

also Campbell v Rickards (1833) 5 B & Ad 840 at 845–6; Armat v Little; Ex parte Little [1909] St R Qd 83 Crosfield & Sons v Techno-Chemical Laboratories Ltd (1913)29 TLR 378

; Joseph

; R v Tonkin and Montgomery [1975] Qd R

1 at 42,43 ; Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979]Ch 384 at 402 ; esure Insurance Ltd v Direct Line Insurance plc [2008] EWCA Civ 842 at [73]–[75]. See also Phipson on Evidence, 17th ed, Sweet & Maxwell, London, 2012, [33-12]; J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29105]–[29120]. 28 In England, it has even been held that an expert must not trespass into the judicial case management territory: Re M (A Child) (Injured Child: Evidence) [2007] EWCA Civ 589, cited in Re O-M (Children) (Non-Accidental Injury: Expert Evidence) [2009] EWCA Civ 1405 at [49].

21.14 Under the Uniform Evidence Acts, the rule prohibiting experts providing opinions on an ultimate issue has been abolished. For example, s 80 of the Evidence Act 1995 (Cth) states that opinion evidence is not inadmissible only because it is about ‘a fact in issue or an ultimate issue’ or ‘a matter of common knowledge’.29 However, the status of the rule in common law jurisdictions is much less clear. In R v Palmer,30 for example, Glass JA doubted that such a rule exists but considered

Page 817 that there is a narrower rule which prevents any witness, expert or non-expert, from providing an opinion on a question which involves the application of a legal standard: I question that there is any such rule in the terms which have been submitted to us. It is a commonplace experience in trials, both civil and criminal, before juries for evidence of opinion to be received from both experts and non-experts in relation to ultimate issues for jury determination. I need only say, so far as expert evidence is concerned, that this happens all the time with respect to scientific, medical and handwriting evidence and so far as concerns non-expert opinion, that this, too, is receivable for the purposes of identification or proof of speed. The true rule, in my opinion, is that no evidence can be received upon any question, the answer to which involves the application of a legal standard. It is not possible,for example, to tender evidence that a defendant was negligent, that a deceased lacked testamentary capacity or that the accused was provoked. These are questions, the answers to which can only be given by the jury after the judge has instructed them upon the rule of law which they must apply.31

29 See also Evidence Act 2011 (ACT) s 80; Evidence Act 1995 (NSW) s 80; Evidence (National Uniform Legislation) Act 2011 (NT) s 80;Evidence Act 2001 (Tas) s 80; Evidence Act 2008 (Vic) s 80. 30 R v Palmer [1981] 1 NSWLR 209

.

31 R v Palmer [1981] 1 NSWLR 209 at 214

per Glass JA. This reasoning is consistent with Glass JA’s early decision of

Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 675–6 , citing Phipson on Evidence, 11th ed, Sweet & Maxwell, London, 1970, p 310. This is consistent with the position in England: see Barings plc (in liq) v Coopers & Lybrand (No 2) [2001] Lloyd’s Rep Bank 85 (Ch) at [45] per Evans-Lomb J. Expert evidence

Page 8 of 44 Chapter 21 Experts was not permitted on the construction of a commercial instrument as it is a question of law, other than to explain technical expressions outside the court’s expertise: JP Morgan Chase Bank v Springwell Navigation Corporation [2006] EWHC 2755 (Comm) at [30][33]

. See also Zeid v Credit Suisse [2011] EWHC 716 (Comm).

21.15 In Thannhauser v Westpac Banking Corporation,32 Pincus J provided some practical examples of where absurdity might arise from a strict application of the rule: Whether or not, where negligence is in issue, there is a ban upon use of the word ‘negligence’ itself and its synonyms in the framing and answering of questions of those called to give their opinion on what was done, I cannot accept that there is any longer an established practice preventing a suitably qualified expert from saying that what is complained of was not in accordance with good practice, was excessively risky, poorly conceived or other such criticisms. That is so, in my view, even if acceptance of evidence of that kind might lead fairly directly to a conclusion that what was done was negligent.33

32 Thannhauser v Westpac Banking Corporation (1991) 31 FCR 572

.

33 Thannhauser v Westpac Banking Corporation (1991) 31 FCR 572 at 574 Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 Glass JA and Pincus J.

per Pincus J. See also Allstate Life

per Lindgren J who shares the same views as

21.16 Mason CJ and Toohey J also doubted that the rule existed. In Murphy v R,34 their Honours placed significant doubt over the existence of the rule in Australia: It is unnecessary to spend time on the question whether an expert may give an opinion on the very issue of fact or law which the court has to determine. It is doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue.35

Page 818 In R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd,36 after explaining that the existence of the ultimate issue rule was doubted,37 Giles J articulated the narrower rule in terms that an expert ‘may not give an opinion on an ultimate issue where that involves the application of a legal standard’, and then went on to cite a further principle which was extra-judicially articulated by Harold Glass: It is no less objectionable for questions to be put to the expert or answers to be given which appeal to a legally irrelevant standard of judgment such as whether the defendant’s conduct was or was not wrong, improper, unjustifiable,unreasonable or something which should not have happened.38

Referring to Glass’s categories, Giles J agreed that a basis to exclude expert opinion evidence is on the basis that the opinion is directed to an irrelevant legal standard. This exclusion was founded in a lack of relevance rather than any application of the traditional ultimate issue rule. Applying these two narrower rules, Giles J ordered that parts of an expert opinion be excluded from evidence.39

Page 9 of 44 Chapter 21 Experts

34 Murphy v R (1989) 167 CLR 94

.

35 Murphy v R (1989) 167 CLR 94 at 110–11

. Deane J at 127 also doubed whether the ‘ultimate issue’ rule exists.

36 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129

.

37 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130

per Giles JA.

38 H Glass, ‘Expert Evidence’ (1987) 3 Australian Bar Review43 at 48–9, cited in R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130

per Giles JA.

39 RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130

per Giles JA.

21.17 However, in Naxakis v Western General Hospital,40 Callinan J suggested that the ultimate issue rule remains good law. In particular, his Honour said that in the absence of a statutory basis to accept the evidence, such as s 80 of the Uniform Evidence Acts, the ‘better view’is that the court should generally uphold an objection to receipt of the evidence.41

40 Naxakis v Western General Hospital (1999) 197 CLR 269

.

41 Naxakis v Western General Hospital (1999) 197 CLR 269 at 110

per Callinan J.

21.18 This uncertainty has led to some lower courts continuing to use the ultimate issue rule. In South Australia, the rule appears to continue to be recognised by the courts. In Physiotherapy Board of SA v Heywood-Smith,42 Gray and Layton JJ (Kelly J agreeing) said: [I]t is well settled that it is undesirable to allow experts to become involved in the judicial decision-making process. The danger is that a judicial function will be usurped by an expert answering questions that only a court or tribunal can decide.43

The ultimate issue rule has also been applied in Western Australia44 and in Queensland, albeit in a criminal law context.45

42 Physiotherapy Board of SA v Heywood-Smith (2008) 101 SASR 573; [2008] SASC 253

.

43 Physiotherapy Board of SA v Heywood-Smith (2008) 101 SASR 573 at 584; [2008] SASC 253 at [41] Layton JJ (with whom Kelly J agreed). 44 State of Western Australia v Elliott [2012] WASC 174 at [40],[43] 45 Unimin Australia Ltd v Queensland [2010] QCA 169 at [31],[32]

per Simmonds J. per de Jersey CJ.

per Gray and

Page 10 of 44 Chapter 21 Experts

Expert opinions and common knowledge

21.19 Where the court is able to determine issues within its own knowledge, it will not admit opinion evidence, whether from an expert or lay person, on the issue.

Page 819 Freckleton and Selby refer to this as the ‘common knowledge’rule.46 King CJ in R v Bonython,47 provided the following test for determining whether the subject matter of an expert opinion was based on common knowledge thereby rendering the opinion inadmissible: [W]hether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area.48

If the hypothetical person without instruction or experience is able to form a sound judgment on the subject matter without specialised knowledge, then the opinion infringes the common knowledge rule and is inadmissible as evidence.

46 I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, pp 87–94. This language has been adopted by the courts. See, for example, R v Parenzee [2007] SASC 143 at [53][59]

per Sulan J.

47 R v Bonython (1984) 38 SASR 45

.

48 R v Bonython (1984) 38 SASR 45 at 46–7 in the cases: R v Smith [1987] VR 907

per King CJ.There are a number of other similar formulations of the rule ; Murphy v R (1989) 167 CLR 94 at 111; [1989] HCA 28

and Toohey J; Smith v R (1990) 64 ALJR 588 v Ryan (1960) 103 CLR 486 Finkelstein J.

per Mason CJ

; R v Perry (1990) A Crim R 243 at 249 per Gleeson CJ, citing Clark

; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382; [1998] FCA 1200

per

21.20 The rule has its roots in the common law.49 The rule has been applied to deny the admissibility of expert opinion evidence on the making of consumer decisions to purchase everyday items,50 on whether the risk of slipping increases when water is allowed to pool on steel,51 and on the behaviour of normal children.52 These categories are not closed.53

49 An early case is Folkes v Chadd (1782) 3 Doug KB 157 at 159 per Lord Mansfield CJ. See also Bourne v Swan & Edgar Ltd [1903]1 Ch 211

at 214

. The key English case is R v Turner [1975] QB 834

at 841

,

which was adopted in Australia in Murphy v R (1989) 167 CLR 94 at 111; [1989] HCA 28 per Mason CJ and Toohey J. For the apparent overlap between the common knowledge rule and judicial notice, see J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [3015]. 50 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; [2006]FCA 363 at [11] per Heerey J.

Page 11 of 44 Chapter 21 Experts 51 Australian Oil Refining Co Ltd v Bourne (1980) 54 ALJR 192 52 Buckley v Wathen [1973] VR 511 at 515

.

per Smith CJ. Expert evidence is also not needed to inform the court about

matters of Australian history: Holland v Jones (1917) 23 CLR 149 at 153 per Issacs J; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 734 at 806 per Evatt J; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196

per Dixon J.

53 for more examples, see I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, p 91.

21.21 Under the Uniform Evidence Acts, the rule prohibiting experts providing opinions on matters of common knowledge has been abolished. For example, s 80 of the Evidence Act 1995 (NSW) provides that opinion evidence is not inadmissible only because it is about ‘a matter of common knowledge’.54 However, it would appear that s 79 of the Uniform Evidence Acts has been interpreted in such a way that it has a similar effect to the common knowledge rule. In Cadbury Schweppes Pty Ltd v Darrell

Page 820 Lea Chocolate Shops Pty Ltd,55 Heerey J, citing Ligertwood’s Australian Evidence and Velevski v R,56 stated that the words ‘specialised knowledge’ in s 79 meant that even ‘if a proffered opinion is that of a person suitably qualified within an organized area of knowledge, if that area is not outside the experience of ordinary persons, the opinion will not be admissible’.57

54 See also Evidence Act 2011 (ACT) s 80; Evidence Act 1995 (NSW) s 80; Evidence (National Uniform Legislation) Act 2011 (NT) s 80;Evidence Act 2001 (Tas) s 80; Evidence Act 2008 (Vic) s 80. 55 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; [2006]FCA 363

.

56 A Ligertwood, Australian Evidence, 4th ed, LexisNexis Butterworths, Sydney, 2004, p 494; Velevski v R (2002) 187 ALR 233; [2002] HCA 4

per Gaudron J.

57 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719; [2006]FCA 363 at [11] per Heerey J.

An expert in a recognised field

21.22 A witness is competent to give expert evidence only if, first, there is a recognised field of expertise, and, secondly, the witness is an expert within that field of expertise such that they can give reliable evidence. In the early case of Folkes v Chadd,58 Lord Mansfield CJ explained the symbiotic relationship between these two principles: ‘The opinion of scientific men upon proven facts … may be given by men of science within their own science.’59 It seems obvious that one cannot be an expert if there is no relevant field of expertise. However, determining whether and when a field becomes a recognised field of expertise can be a difficult question for courts to determine. One often cited explanation of the test is that contained in the United States case of Frye v United States: Just when a principle crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it

Page 12 of 44 Chapter 21 Experts belongs.60

58 Folkes v Chadd (1782) 3 Doug KB 157. 59 Folkes v Chadd (1782) 3 Doug KB 157 at 159 per Lord Mansfield CJ. 60 Frye v United States (1923) 293 F 1013 at 1014

.

A recognised field of expertise

21.23 At common law in Australia, a principle has emerged to determine when a field of expertise exists such that expert evidence can be admitted in relation to it. The principle was summarised in J W Smith’s notes to Carter v Boehm,61 in which the author wrote: On the one hand it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it. While on the other hand, it does not seem to be contended that

Page 821   the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.

This phrase was accepted by Dixon CJ in Clark v Ryan, before finding that the evidence of an expert ‘offended against these principles’ and that some of the evidence ‘lay outside any qualifications that upon any view however benevolent he could be supposed to possess’.62

61 Carter v Boehm (1876) 1 Smith LC 577. 62 Clark v Ryan (1960) 103 CLR 486 at 491

per Dixon CJ.

21.24 Grappling with these principles in R v Bonython,63 King CJ stated the following test to determine the existence of a recognised field of expertise: [W]hether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.64

Page 13 of 44 Chapter 21 Experts The notion of reliability of the body of knowledge is fundamental, as if the professed body of expertise is merely theoretical and not widely accepted, then it will not be admitted as expert evidence.

63 R v Bonython (1984) 38 SASR 45

.

64 R v Bonython (1984) 38 SASR 45 at 46–7 per King CJ. Freckleton and Selby refer to this as the ‘area of expertise rule’: I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013,p 57.

21.25 King CJ’s test was applied by Olsson J in Casley-Smith v FS Evans & Sons Pty Ltd and District Court of Stirling (No 1), in the context of determining whether to admit expert evidence on the behaviour of bushfires.65 On this subject matter, Olsson J found that ‘there is no organised or recognised body of knowledge which either erects or amounts to any such principles, as scientific principles of universal application, or from which such principles may reasonably be extracted’ in the terms stated by the witness.66 However, Olsson J ultimately held that some of the topics the subject of evidence did ‘derive from or relate to a body or bodies of knowledge or experience which is sufficiently organised or recognised as to be accepted as a reliable body of knowledge or experience’ but that others did not as they were ‘no more than an incidental inference which’ the witness sought ‘to divine from writings’.67 As such, only some of the material was able to be admitted as expert evidence.

65 Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314

.

66 Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314 at 326

per Olsson J.

67 Casley-Smith v FS Evans & Sons Pty Ltd (No 1) (1988) 49 SASR 314 at 328

per Olsson J.

21.26 With respect to ‘new or unfamiliar techniques or technology’, King CJ said in R v Bonython that ‘the court may require to be satisfied that such techniques or technology have a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence’.68

Page 822 Using these principles, various cases have been decided. In R v Harris (No 3),69 the field of expertise test was applied by Ormiston J to find that voice recognition was not an area on which only experts can give evidence. In R v Runjanjic,70 King CJ found that expert evidence could be admitted with respect to battered woman syndrome, which was accepted as a new field of psychological expertise that did not exist previously.71

68 R v Bonython (1984) 38 SASR 45 at 47 69 R v Harris (No 3) [1990] VR 310 70 R v Runjanjic (1991) 56 SASR 114

. .

per King CJ.

Page 14 of 44 Chapter 21 Experts 71 J D Heydon further notes that material from astrologers, soothsayers and witch-doctors is inadmissible as expert evidence, citing R v Robb (1991) 93 Cr App R 161 at 164. See J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths,Sydney, 2014, [29050].

Sufficiency of skills, training and knowledge

21.27 Where a recognised field of expertise is established or not disputed, the court must determine whether the relevant witness is an expert in the field such that they may give expert evidence on it. In R v Bonython,72 King CJ outlined the test to determine whether a witness is an expert in the relevant field of expertise: The … question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.73

72 R v Bonython (1984) 38 SASR 45

.

73 R v Bonython (1984) 38 SASR 45 at 46–7 per King CJ. Freckleton and Selby refer to this test as the ‘expertise rule’: I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013,p 33.

21.28 Whether a witness has acquired sufficient knowledge in the relevant field of expertise will vary from case to case. A common way for an expert to meet the threshold is for the witness to have formal qualifications in the field.74

74 R v Bonython (1984) 38 SASR 45 at 47

; R v G [2004] 2 Cr App R 638.

21.29 However, significant experience without a formal qualification can meet or exceed the threshold. As J D Heydon notes, ‘specialisation is a matter of degree’.75 In Clark v Ryan,76 it was contended that opinion evidence in relation to the causes of a motor vehicle accident was inadmissible. The defence contended both that the witness was not an expert and that the cause of a motor vehicle accident was not a field of expertise. The witness had no formal qualifications but for a period of five years had been an apprentice at an engineering company and had studied mathematics, drawing, physics and applied mechanics at a technical college. In total, the witness had over 50 years of engineering experience. Nevertheless, Dixon CJ held that the evidence given by the witness was partly expert evidence and partly opinion evidence, which was not admissible in accordance with the common knowledge rule.

Page 823

Page 15 of 44 Chapter 21 Experts 75 J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29060]. 76 Clark v Ryan (1960) 103 CLR 486

.

21.30 In Weal v Bottom,77 a witness gave evidence on whether it was possible for the rear end of an articulated trailer to be over the middle line of a road at a particular point in time. The witness had been driving motor vehicles for 30 years and had experience driving articulated vehicles around the relevant corner. However, the witness had also observed other similar vehicles driving around the same corner. The plaintiff relied on the witness as an expert to give evidence of the likelihood of an articulated vehicle straddling the middle line of the road while going around the curve. Barwick CJ admitted his evidence not as expert evidence but rather as lay evidence based on actual experience and observation.78

77 Weal v Bottom (1966) 40 ALJR 436

.

78 Weal v Bottom (1966) 40 ALJR 436 at 438 per Barwick CJ. For many more examples, see J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29060].

Evidence must be admitted of facts consistent with facts relied on by expert

21.31 An expert opinion is not admissible unless evidence is admitted which enables findings of fact to be made by the court which are consistent with the facts, assumptions or observations relied upon by the expert in formulating their opinion.This is known as the ‘basis rule’.79

79 See J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29070]; I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy,5th ed, Law Book Co, Sydney, 2013, p 121. See also Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 298 ; Watson v Ramsay (No 2) (1962)62 SR (NSW) 359 at 369 (FC); Forrester v Harris Farm Pty Ltd (1996) 129 FLR 431 at 438 (ACTSC); R v Anderson (2000) 1 VR 1 at [59]

; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [138]

v South Australia (2008) 102 SASR 404 at [63][68]

; Flavel

; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [66]–[90]

.

21.32 Factual basis evidence does not need to be admitted prior to or at the time of the expert giving evidence so long as the evidence is admitted at some stage afterwards.80 If the evidence is not admitted at all, then the expert opinion cannot be relied upon by the court.81 Similarly, if the opinion is based on facts which are inadmissible, then the opinion is inadmissible.82

Page 16 of 44 Chapter 21 Experts 80 Ramsay v Watson (1961) 108 CLR 642 81 R v Ping (2005) 159 A Crim R 90 at [433]

. .

82 Henderson v Amdaio Pty Ltd (No 1) (1995) 62 FCR 1 at 122

.

21.33 The basis rule has formed some practical boundaries. For example, the courts do not require experts to prove the knowledge they have obtained from their libraries and throughout the course of their duties.83 When an expert bases evidence on the work of another, only a passage cited or quoted as correctly stating a fact becomes part of an expert’s opinion.84 There is some controversy around the basis rule in regards to whether it is a rule of exclusion or a matter of weight.85

Page 824

83 Borowski v Quayle [1966] VR 382 at 386

.

84 OQ v Australian Red Cross Society [1992] 1 VR 19 at 35

.

85 for more on this debate, see J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29070]; and I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, p 126.

Court to decide the weight to be given to expert testimony

21.34 A court trying a dispute has no power to delegate its judicial role of deciding the case to another person.86 Experts may be used to assist the court, but it is the court which decides the issues, no matter how complex or technical they may be. The court must evaluate the single expert’s testimony just as it would evaluate the testimony of competing experts. It is for the court to decide the issues between the parties, no matter how difficult they are or how much their determination may require specialist knowledge. The court is not bound to follow an expert’s approach to a subject;however, unless there are problems with the evidence, such as where an expert’s assumptions have been proven to be wrong, courts will be slow to disregard it.87

86 Assessor for Lothian Region v Wilson (1979) SC 341 at 349 per Lord Avonside; Dingley v The Chief Constable, Strathclyde Police [2000] UKHL 14; 2000 SC 77 LexisNexis Butterworths, Sydney, 2014, [29038].

(HL) at 89. See also J D Heydon, Cross on Evidence, 10th ed,

87 for example, Fletcher v Autocar Transporters Ltd [1968] 2 QB 322 ; [1968] 1 All ER 726 (CA) Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths,Sydney, 2014, [29038] and [19078].

21.35

. See also J D

Page 17 of 44 Chapter 21 Experts Where expert evidence is of marginal relevance and is unintelligible, there are cases which suggest that the evidence may be excluded by the judge. However, the balance of cases suggests that in the civil jurisdiction there is no residual discretion at common law to exclude prejudicial evidence where it otherwise satisfies the tests for admission of such evidence.88

88 Polycarpou v Australian Wire Industries (1995) 36 NSWLR 49 at 64

.

21.36 Sections 135 and 137 of the Uniform Evidence Acts89 provide that the court has a power to refuse to admit evidence if its probative value is substantially outweighed by expert evidence being unfairly prejudicial, misleading or confusing, or a waste of the court’s time. Since the advent of these statutory discretions, Freckelton and Selby suggest that the focus of admissibility disputes has turned to the prejudicial effect of the evidence having these deficiencies.90

89 Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence(National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 90 I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, p 27.

21.37 Faced with conflicting expert testimony from two or more experts, the court must hear oral evidence from each expert witness and resolve any conflict on the balance of probabilities, taking into account the credibility of each witness following the evidence given by each witness.91

Page 825

91 Repatriation Commission v Law (1981) 147 CLR 635 at 650–1 per Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed. Lord Woolf identified in his Interim Report that the majority of the problems associated with expert evidence is because the expert is retained as part of a ‘litigation team’, which together advance the client’s interests. However, when giving evidence, the expert was somehow to change roles and provide independent expert evidence that the court would admit and rely on: Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Access to Justice Inquiry, Interim Report), HMSO, London, 1995, p 182.

Experts’ duties Overriding duty to the court

21.38

Page 18 of 44 Chapter 21 Experts Expert witnesses have a paramount duty to assist the court impartially on matters relevant to the area of expertise of the witness.92 This duty overrides any other duty owed to the party to the proceedings or any other person retaining the expert witness. On its face, this rule is redundant because it is the duty of any witness to tell the truth, the whole truth, and nothing but the truth. However, the difference between experts and other witnesses is such that it is necessary to stress that experts must serve the court rather than the parties. Unlike witnesses of fact that are chosen because of their connection with the disputed facts (effectively ‘chosen’ by circumstance), experts are retained because they can advance the party’s case through, in effect, the production or generation of evidence.

92 Rule 23.13 of the Federal Court Rules 2011 (Cth) provides that each expert report must contain an acknowledgment at the beginning of the report that the expert has read, understood and complied with the practice note. Paragraph 4.4 of Federal Court Practice Note (GPN-EXPT) provides that every expert witness giving evidence must agree to be bound by the Harmonised Expert Witness Code of Conduct.Paragraph 2 of the Code of Conduct provides the paramount duty. It is submitted that the way in which the duty is located in the Federal Court Rules is unnecessarily complicated. See also Court Procedures Rules 2006 (ACT) r 1201 and Sch 1 Expert Witness Code of Conduct para 2; Uniform Civil Procedure Rules 2005 (NSW) r 31.23(1) and Sch 7 Expert Witness Code of Conduct para 2;Uniform Civil Procedure Rules 1999 (Qld) r 426; Supreme Court Civil Supplementary Rules 2014 (SA) rr 156(1) and 160, Practice Direction 5.4 para 5.4.3.1; Supreme Court Rules 2000 (Tas) rr 514 and 516(1)(b), Expert Witness Code of Conduct; Supreme Court (General Civil Procedure) Rules 2015(Vic) r 44.01 and 44.03(1)(a), and Form 44A Expert Witness Code of Conduct para 2.

21.39 Experts are required to undertake preparatory work in connection with the dispute, such as carrying out examinations, investigations, experiments or some other form of study. Experts may influence the outcome of proceedings by advancing explanatory theories whereas witnesses of fact merely report what they observed, heard or otherwise perceived. Significantly, experts are paid for their evidence; they provide a service for profit. Witnesses of fact, by contrast, are only entitled to be paid nominal conduct money for attending the trial or other incidental expenses. Given the close involvement between parties and their experts, and given their common financial interests, it is not surprising that serious problems of independence and impartiality might be perceived.

21.40 The expert’s duties may be divided into two categories: impartiality and transparency. Impartiality requires the expert to reach a conclusion that is in accordance with the evidence and in conformity with the scientific rules and information governing their subject, regardless of whether their conclusion satisfies their instructing client. Transparency requires that expert reports should be comprehensible, should clearly indicate the underlying assumptions on which the conclusions are based,the reasons for the conclusions, and any doubts that may remain in the expert’s mind.

21.41 Experts are expected to comply fully and conscientiously with their duties to the court and with court directions. However, a question exists as to whether the failure of

Page 826 an expert to comply with their duties renders the evidence of that expert inadmissible. In Wood v R,93 it was acknowledged that non-compliance with the New South Wales Expert Witness Code of Conduct by an expert witness does not necessarily render the report inadmissible. However, ‘where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Uniform Evidence Act’.94

Page 19 of 44 Chapter 21 Experts

93 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21

.

94 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [728][729] Office of Environment and Heritage [2013] NSWCA 114

; see also Kylik Pty Ltd v Chief Executive,

.

21.42 Therefore, while there is no rule providing for specific sanctions where an expert witness has been in breach of their duty to the court, adherence to the duties, practice directions, and codes of conduct is a relevant consideration in the exercise of the statutory discretion to exclude the evidence or to invoke the corresponding common law discretions.

Transparency, impartiality and expert interest in the outcome

21.43 The fact that an expert has an interest in the outcome will not necessarily disqualify the expert. Whether such an expert would be allowed to testify would depend on the court’s assessment of the circumstances of the case. In the English case of Factortame Ltd v Secretary of State for the Environment, Transport and the Regions,95 the plaintiffs retained a firm of accountants to assist them by providing litigation services in proceedings in which the quantum of their damages was to be assessed, and agreed to remunerate them by paying 8 per cent of the final settlement received. The English Court of Appeal held that the agreement was not contrary to public policy because the accountants’ advice was given only after liability had been established, and because the plaintiffs were unable to pay upfront and could therefore only obtain assistance on a contingency basis.96 The court observed that whenever an expert acts for an impecunious plaintiff they have an interest in the outcome because they know that their fee will be paid only if the plaintiff recovers damages and costs. Although it is desirable, the court stressed, that an expert should have no actual or apparent interest in the outcome of the proceedings, lack of interest is not a precondition to the admissibility of expert evidence.

95 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] 4 All ER 97 (EWCA Civ). 96 See also Simpson v Norfolk and Norwich University Hospital NHS Trust [2011] EWCA Civ 1149 at[20] Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch) at [43].

; Meat

21.44 In Factortame, the Court of Appeal was of the view that the test of apparent bias, which is applicable to an administrative tribunal, is not applicable to expert witnesses.97 In Australia, there is no rule which prevents biased evidence from being admitted from an expert witness.98 As Heydon states, this evidence would only be

Page 827 precluded from evidence if the circumstances are such that would allow s 135 or s 137 of the Evidence Act 1995 to apply, or the corresponding common law discretions.99

Page 20 of 44 Chapter 21 Experts

97 Cf National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68 at 81–2. 98 Collins Thomson Pty Ltd v Clayton [2002] NSWSC 366 [2002] NSWSC 485

; Kirch Communications Pty Ltd v Gene Engineering Pty Ltd

; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33

Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149 at [346]

; Australian Securities and

.

99 See J D Heydon, Cross on Evidence, 10th ed, LexisNexis Butterworths, Sydney, 2014, [29080].

21.45 Given the decoupling of the apparent bias test from expert admissibility, it is submitted that it is all the more important that the court should be made aware of the influences under which the expert may labour. Parties should therefore be made aware at the earliest opportunity of any factor that may have a bearing on an expert’s independence.100 Apart from a direct financial interest there are other factors that may influence the expert. The expert may be an employee of the party calling them, or may have a continuing relationship with the party or with the party’s legal representatives.Indeed, the expert may themself be a party to the proceedings. Only if the court is informed of such matters can it give consideration to whether it is appropriate to allow the expert to testify and, if so, how such matters may influence the admissibility and weight of the expert’s evidence.101 It is submitted that transparency is more important than independence because it enables the opponent and the court to take account of any lack of independence from which an expert may suffer.

100 for example, expert evidence may not be admitted where the expert has a prior relationship with its retaining party and where it has taken into account previously acquired information that it has not referred to in its report: I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, p 355. See also the English case of Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch) at [43]. 101 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] 4 All ER 97, CA. See D Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence’ (2007) 26 Civil Justice Quarterly.

Experts may ask for court directions

21.46 Given that the expert’s duty is primarily to the court, many jurisdictions have introduced rules which allow an expert to apply to the court for directions.102 An expert may ask for directions at any stage at which the expert requires court guidance. Guidance may be required because the parties’ instructions or the court’s directions are unclear, or because the expert feels that the timetable imposed by the court is unrealistic. The expert may use their direct access to the court in order to draw attention to defects in the parties’ instructions, as where the expert forms the view that both parties, or one of them, have misunderstood the issue or have wrongly defined the methods of their investigation.

102 Uniform Civil Procedure Rules 2005 (NSW) r 31.24(3) and (4); Uniform Civil Procedure Rules 1999 (Qld) r 429P; Civil Procedure Act 2010 (Vic) s 65H(2)(g); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 44.06(3).

Conditional obligation to testify

Page 21 of 44 Chapter 21 Experts

21.47 Experts are entitled to charge a fee for their services, which is normally paid by the party or parties instructing the expert.103 There is some authority that an expert may refuse to testify if they have not been paid, and would not normally be compelled

Page 828 to give evidence.104 There are other grounds that may persuade the court to decline to compel the appearance of expert witnesses, such as the fact that the expert has other important work which would be disrupted, or that the evidence in question could be gained from other sources of equal authority.105 It goes without saying that an expert who refuses to fulfil their undertaking to the instructing party might be in breach of their contract.

103 An expert’s remuneration is regarded as a common law right: Webb v Page (1843) 1 Carr & K 223; 174 ER 695. 104 Brown v Bennett (2000) The Times, 2 November 2000. 105 ACCC v Lux Pty Ltd [2003] FCA 843

; SB v New South Wales (by her Litigation Guardian) [2004] VSC 513

.

The court’s power over expert evidence Court permission required for using expert evidence

21.48 Generally, court control over expert evidence is extensive. Indeed, the ‘main purposes’ of the Uniform Civil Procedure Rules 2005 (NSW) include to: (a) ensure that the court has control over the giving of expert evidence; and (b) restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings.106 Rule 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) provides that any party intending to adduce expert evidence at trial must promptly seek directions from the court. The primary purpose of this rule is to control the calling of expert evidence to that which is required to achieve the overriding objective discussed in Chapter 1, 1.40 ff. The court may determine the issues on which expert evidence will be admitted. It may also give directions concerning the nature of expert evidence, including whether it will be by a joint expert or by separate experts called by the parties. It may determine the way in which the evidence is to be placed before the court, whether orally or in written form. Directions should be sought before the expert is retained.107 The Jackson Review of Costs emphasised the importance of active case management to control the cost of expert evidence.108

106 Uniform Civil Procedure Rules 2005 (NSW) r 31.17(a) and (b). See also Court Procedures Act 2006 (ACT) s 1200(b); Supreme Court Rules (NT) r 13(3); Uniform Civil Procedure Rules 1999 (Qld) rr 429G(2) and 429S(1); Supreme Court Rules 2000 (Tas) r 515; Civil Procedure Act 2010 (Vic) s 65G; Rules of the Supreme Court 1971 (WA) r 36A(1). 107 Chapman v Chapman [2007] NSWSC 1109 at [6]

.

108 Sir Rupert Jackson, Review of Civil Litigation Costs: Interim Report, 2009 p 382.

21.49

Page 22 of 44 Chapter 21 Experts The court’s power concerning expert evidence is exercised with a view to ensuring that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues. The court must ensure that expert evidence is adduced in the most effective and economical way consistent with the overriding objective.

21.50 Some courts need not wait for an application from a party before giving directions concerning experts.109 The court tends to give such directions as soon as it

Page 829 is in a position to give case management directions and it appears that expert evidence is necessary.

109 Federal Court Rules 2011 (Cth) r 1.32; Court Procedures Act 2006 (ACT) s 1205; Uniform Civil Procedure Rules 2005 (NSW) r 31.20; Uniform Civil Procedure Rules 1999 (Qld) r 429M; Supreme Court Rules 2000 (Tas) r 515; Civil Procedure Act 2010 (Vic) s 65H.

21.51 The process of obtaining expert evidence and preparing it for trial may take considerable time, especially where experts on both sides are required to produce a joint report or where the parties need to appoint a joint expert. In order to avoid unnecessary delay, applications for directions must be made at the earliest possible opportunity. Late applications may be dismissed, especially where they are likely to disrupt the litigation timetable or force expensive postponements.110

110 Calenti v North Middlesex NHS Trust (2001) LTL 10 April 2001, QBD at 604.

Expert conferences

21.52 The court’s authority over expert evidence is not confined to permitting its use and limiting the number of expert witnesses but may also extend to directing the manner in which they should carry out their task. When the court makes case management orders to prepare for trial, the court may require experts (who are to give or have given reports) to meet for the purpose of identifying and addressing the issues in dispute between the experts (‘conference’).111

111 See .

Page 23 of 44 Chapter 21 Experts With the exception of Western Australia, all jurisdictions have rules with respect to requiring experts to confer on the issues the subject of their expertise. In the Federal Court, such an order may be made on the application of a party,112 or on the court’s own initiative.113 This is largely the same in the balance of the jurisdictions.114

112 Federal Court Rules 2011 (Cth) r 23.15(a). 113 Federal Court Rules 2011 (Cth) r 5.04(3) item 18. 114 Court Procedures Act 2006 (ACT) s 1211; Supreme Court Rules 1937 (ACT) O 39 Div 9; Uniform Civil Procedure Rules 2005 (NSW) rr 31.20(2)(h) and 31.24, see also r 31.25; Supreme Court Rules (NT) r 14(2)(a); Uniform Civil Procedure Rules 1999 (Qld) r 429B; Supreme Court Civil Rules 2006 (SA) r 160; Civil Procedure Act 2010 (Vic) ss 65I and 65J.

21.54 The purpose of an expert conference is to enable the experts on each side to have a comprehensive and frank discussion of the issues pertaining to their expertise so that the areas of agreement and disagreement between them can be identified and refined. Generally, lawyers are not able to attend an expert conference but a court officer may attend to assist with the running of the conference. The court may, however, order that parties and their lawyers can attend but this is the exception.The parties and their lawyers will be provided with any report prepared by the experts in conference.

21.55 The decision by a judge to direct the parties’ experts to confer will depend on the circumstances of the case and the views of the parties. The timing and location of the conference of experts will be decided by the judge or a registrar who will take into account the location and availability of the experts and the court’s case management timetable.115 Experts are able to prepare for a conference by being familiar with the material upon which they base their opinions and by exchanging expert reports so that they can be familiar with the opinions of the other experts.

Page 830

115 See .

21.56 Face-to-face discussions between experts who profess skills and knowledge in the same field are likely to be conducive to better and deeper understanding of the issues and of the means of resolving them. Such an environment softens adversarial posturing since it is more difficult to adhere to set opinions or insist on untenable positions in the presence of equally qualified peers. The need to articulate reasons before other well-informed experts is therefore bound to moderate any mercenary loyalty towards the party paying the expert’s fees. Lastly, the need to write a joint report, even if it is one in which the experts indicate their dissent from each other, is bound to focus their minds on the core issues and cause them to discard marginal disputes.

Joint report between opposing experts

Page 24 of 44 Chapter 21 Experts

21.57 At the conclusion of an experts’ conference the experts must produce a joint statement. They do not require party authority to sign the joint statement. But if an expert significantly alters an opinion, the joint statement must include a note by that expert explaining the change of opinion.116

116 Federal Court Rules 2011 (Cth) r 23.15(a); Court Procedures Act 2006 (ACT) s 1211; Uniform Civil Procedure Rules 2005 (NSW) r 31.24; Supreme Court Rules (NT) r 14(2)(b); Uniform Civil Procedure Rules 1999 (Qld) r 428B; Supreme Court Civil Rules 2006 (SA) r 160; Civil Procedure Act 2010 (Vic) s 65I.

Exchange of expert reports

21.58 The court will normally give directions concerning the timing of the exchange of expert reports and its manner. The court may direct simultaneous or sequential exchange. It may order simultaneous exchange with regard to certain issues and sequential exchange with regard to others, depending on what is deemed to be most efficient and fair. The court will also impose a timetable for experts’ discussions, meetings and agreed reports. A party who is late in disclosing an expert report may find that the court is not willing to permit the expert to be called, especially where the late disclosure is likely to delay the disposal of the case.

The models of expert evidence

21.59 It is a consequence of our insistence on generalist courts that an increase in the technical complexity of litigation corresponds to the heavy reliance on expert witnesses. The objective is to find an optimum model for receiving expert evidence that reduces the risk of adversarialism and is proportionate to cost, complexity, the duration of the matter, and justice on the merits.117 Specialist courts are not a cost-effective option for the plethora of cases heard each week by courts in Australia. There is a need for generalist courts.

Page 831

117 The economic theory of agency assists in this way to find the optimum model: R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 93.That theory sees the court corresponding to the principal in an ordinary principal–agent relationship, and the expert witness the agent. The parties have asymmetric information: the agent knows more; the principal knows this and takes steps to try to align the agent’s incentives with those of the principal.

The ‘traditional model’ of expert evidence

21.60 The traditional model is where each party calls one or more expert witnesses whose evidence-in-chief supports that party’s case.118 Cross-examination is the traditional common law method for testing this evidence. Lord Woolf

Page 25 of 44 Chapter 21 Experts suggested that where the traditional model is used, the opposing experts should cooperate as much as possible to assist the court.119

118 S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 31 Civil Justice Quarterly 30 at 30. 119 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [24]. Justice Rares summarised the problems of the traditional model: S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30.

21.61 An empirical study in Australia conducted in 1999 found that 35 per cent of judges considered bias as the most serious problem with expert evidence, and another 35 per cent considered that the presentation or testing of the expert as the most serious problem.120

120 I Freckleton, P Reddy and H Selby, Australian Judicial Perspectives on Expert Evidence: An Empirical Study, Australian Institute of Judicial Administration, 1999, p 37, cited by S Rares, ‘Using the“hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30.

21.62 The traditional model of expert evidence is tedious and considerable court time is used as each witness is required to provide evidence whether orally or in writing and then be cross-examined on that same evidence. The expert issues can become blurred in a maze of detail. Many experts feel constrained having to answer questions that may misconceive their evidence. Experts may also become defensive where they feel the process is being used to discredit their views. This can hinder the quality of the evidence they provide. The traditional model is also paradigmatic for the problem of adversarial bias in expert testimony.

21.63 Another problem with the traditional model, which often affects the judge, is where two experts provide inconsistent evidence and ‘cancel each other out’.121 A generalist judge faced with this dilemma may either arbitrarily prefer one expert over another or may ignore the expert evidence altogether and decide the case on the basis of non-expert evidence (as Posner suggests is normally the case where the finder of fact is a jury).122 Where this occurs, the expert evidence may be wasted and the costs associated with it. Posner suggests that one way around this problem may be to borrow a concept from arbitration. A common method of selecting arbitrators is for each party to choose an arbitrator and for the two arbitrators to then choose a neutral, who generally casts the deciding vote. The parties’ experts could similarly agree on a neutral expert who would be appointed by the court.123 It will be an issue

Page 832 as to whether the costs associated with three experts would be proportionate and this model does not solve the issues regarding usurpation of the judicial role. Garry Downs considers conflicting expert accounts to be useful to the court simply because they reveal the alternatives to the court as the decider of fact.124 His Honour considers that a problem with the single joint expert model is that it assumes there is only one answer within the field of expertise.125

Page 26 of 44 Chapter 21 Experts

121 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 93. 122 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 93. 123 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 96. 124 G Downes, ‘Problems with Expert Evidence: Are Single or Court-Appointed Experts the Answer?’ (2006) 15 Journal of Judicial Administration 185. 125 G Downes, ‘Problems with Expert Evidence: Are Single or Court-Appointed Experts the Answer?’ (2006) 15 Journal of Judicial Administration 185.

Single joint experts

21.64 Lord Woolf’s preferred model was a single expert ‘who would be jointly selected and instructed by the parties’ or failing such agreement, by the court.126 In line with this, Davies has argued ‘that the only way in which we can eliminate adversarial bias … is by requiring … that all expert evidence … be that of an expert appointed by the court’.127 To alleviate against the risk of adversarial bias, ‘a joint expert is paid for by both parties, receives joint instructions, hears both parties and communicates with both of them’.128

126 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [2]. 127 G Davies, ‘Court Appointed Experts’ (2005) 5 Queensland University of Technology Law and Justice Journal 89 at 100. 128 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.50].

Appointment of single joint experts

21.65 Some Australian jurisdictions now provide that the default position is for the parties to determine at an early stage whether a single joint expert is appropriate.129 One of the ‘main purposes’ of the Uniform Civil Procedure Rules 2005 (NSW) is ‘if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert’.

129 Federal Court Expert Evidence Practice Note para 6.1(b); Court Procedures Act 2006 (ACT) s 1200(e); Uniform Civil Procedure Rules 2005 (NSW) r 31.17(d) . Other jurisdictions simply provide for mechanisms by which single joint experts may be appointed. See, for example, Civil Procedure Act 2010 (Vic) ss 65H(2)(f)(i), 65L and 65N.

The benefits of single joint experts

21.66 The rationale for a single joint expert is to save time and money, increase the prospects of settlement and to even the playing field of parties with unequal resources.130 Getting the experts together helps soften the adversarial positioning.131

Page 27 of 44 Chapter 21 Experts

130 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [21]. 131 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.33].

21.67 Single joint experts have enormous potential for increasing objectivity in expert evidence.132 After all, an expert who is paid by one party, receives instructions

Page 833 from one party, hears only that party’s version of the events and communicates only with the party and the party’s legal representatives who will have employed them, is liable to be influenced by the party. By contrast, a joint expert is paid by both parties, receives joint instructions, hears both parties and communicates with both of them openly. All else being equal, the joint expert is more likely to be able to provide an objective and balanced view of the issues.

132 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.50].

21.68 Aside from these points, the arguments in support of a single joint expert model are twofold. First, the traditional adversarial system places the judge in the precarious position of arbiter when the judge lacks the particular expertise to resolve the question justly.133 The usual methods of testing evidence, such as cross-examination, are likely to add to confusion by further polarising expert conclusions.

133 G Davies, ‘Court Appointed Experts’ (2005) 5 Queensland University of Technology Law and Justice Journal 89 at 100.

21.69 Secondly, if adversarial bias stems purely from the retainer relationship, it must be accepted that the elimination of the retainer relationship eliminates the adversarial bias. This may be achieved where the expert is retained by the court,as an expert to the court, to whom both parties could provide instructions.134

134 G Davies is favourable to this model: G Davies, ‘Court Appointed Experts’ (2005) 5 Queensland University of Technology Law and Justice Journal 89 at 99–100.

Criticisms of single joint experts

21.70

Page 28 of 44 Chapter 21 Experts Criticisms of the single-joint expert model are threefold. First, it is arguable that single joint experts become de facto judges. The problem is that there is a risk of usurpation of the judicial fact-finding function, which will arise where the expert uses facts to build an opinion and then the judge accepts that opinion.135 It is precisely because the court lacks the expertise of the expert that there is a risk that the decision will be left in the hands of the expert.136 Where there is a risk of usurpation, Professor Zuckerman recommends that a single joint expert is not an appropriate model.137

135 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.54]. 136 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.55]. 137 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.56].

21.71 Secondly, the use of a single joint expert may encourage an expert to exceed the boundary of their expertise, and give an opinion based on matters on which they are not competent.138 There is less scope to rein them in.

138 The White Book, Sweet & Maxwell, London, 2012, Part 35, viewed online on 21 March 2012, [35.4.1], [35.10.1].

21.72 Thirdly, joint experts pose a problem in terms of the fairness of the trial. In particular, the Council of Her Majesty’s Circuit Judges in England and Wales has argued that it ‘is not fair for the parties to try to force them to a single expert in many situations, and this tendency in fast track cases can in effect lead to trial by expert, not judge’.139 It is clear, however, that proportionality can only be achieved by sensible case management.

Page 834

139 Sir Rupert Jackson, Review of Civil Litigation Costs, Final Report, HMSO, 2010, Ch 38 ‘Witness Statements and Expert Reports’, [3.4].

21.73 Posner conceived of the maintenance of a roster, like a knowledge database, that would be maintained by the professional body that the expert belongs to.140 The roster would contain information on how many times the expert had given evidence to a court, an abstract of the member’s testimony (or the entire testimony on the internet) and would also record any criticisms of the testimony by the judge or by the lawyers or experts on the other side of the lawsuit. Then, the profession could monitor its members’ adherence to high standards of probity and care in their testimonial activities.

Page 29 of 44 Chapter 21 Experts 140 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 98.

21.74 When selecting a single joint expert the parties could simply consult the professional body with the particular issue. The professional body could then determine who was best in the profession to provide the court with expert evidence. This would overcome the problems with the over-adversarial traditional model, and also the reluctance of the courts or lack of confidence to appoint their own expert.

Court-appointed experts

21.75 In some jurisdictions, the court has power to appoint its own expert.141 This power is rarely exercised.142 In the federal court, a court-appointed expert may be appointed but only where a party makes application for an order appointing such an expert.143 An order of this kind may be made where a question for expert opinion arises.144 It is the court who provides instructions to the expert including the report to be provided to the court and any tests or experiments to be conducted.145 If an appointment of a court expert is made, the expert’s fees are to be paid jointly and severally by the parties.146

141 See, for example, Federal Court Rules 2011 (Cth) r 23.01(1); Uniform Civil Procedure Rules 2005 (NSW) r 31.46; Uniform Civil Procedure Rules 1999 (Qld) r 429I (on application) and r 429J (on court’s own initiative), see also rr 429M, 429N and 429S; Civil Procedure Act 2010 (Vic) ss 65H(2)(f)(ii), 65M and 65N. 142 Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350 (FCA); Trade Practices Commission v Arnotts Ltd (No 4) (1989) 21 FCR 318

; Tyler v Thomas (2006) 150 FCR 357; [2006] FCAFC 6

.

143 Federal Court Rules 2011 (Cth) r 23.01(1). 144 Lawbook, The Laws of Australia (at 11 February 2018) 5 Civil Procedure, ‘5.7 Trial and Execution of Judgments’ [5.7.730]. 145 Federal Court Rules 2011 (Cth) r 23.01(1) note 2. 146 Federal Court Rules 2011 (Cth) r 23.01(2).

21.76 Although the expert reports to the court, a copy of the report is provided by the registrar to the parties.147 The report is admissible into evidence.148 The parties are then permitted to apply to cross-examine the court expert, which the court has the discretion to permit.149

147 Federal Court Rules 2011 (Cth) r 23.02(1) note 1. 148 Federal Court Rules 2011 (Cth) r 23.03(1). 149 Federal Court Rules 2011 (Cth) r 23.02(1).

Page 30 of 44 Chapter 21 Experts

21.77 Proponents of court appointments argue that the court-appointed expert model resolves many of the problems inherent in the traditional model. For example, Davies states that as the court-appointed expert is appointed by the court, reports

Page 835 to the court, and is answerable to the court, the model removes the prospect of adversarial bias.150

150 G Davies, ‘Court Appointed Experts’ (2005) 5 Queensland University of Technology Law and Justice Journal 89.

21.78 However, the court-appointed expert model is not without its critics. Sheppard opines that court-appointed experts may be perceived to be inconsistent with the adversarial system which underpins Australia’s justice system, as the parties do not instruct the expert.151 There are limitations on what court-appointed experts are able to do. For example, these experts can only report on facts and matters of expert opinion. It is not permissible for these experts to opine on the ultimate issue before the court such as whether a contract has been breached.152

151 I Sheppard, ‘Court Witnesses — A Desirable or Undesirable Encroachment on the Adversary System?’ (1982) 56 Australian Law Journal 234. 152 Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd (1980) 144 CLR 253 ; Lawbook, The Laws of Australia (at 11 February 2018) 5 Civil Procedure, ‘5.7 Trial and Execution of Judgments’ [5.7.730].

Concurrent expert evidence

21.79 As Judge Rackemann explains, concurrent evidence is the process where experts express different opinions at the same time among themselves in the witness box while being questioned by the judge and the parties’ representatives.153

153 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 175. McClellan describes concurent evidence as ‘essentially a discussion chaired by the judge in which the various experts, the parties, the advocates and the judge engage in a cooperative endeavor to identify the issues and arrive where possible at a common resolution of them’: P McClellan, ‘New Method with Experts — Concurrent Evidence’ (2010) 3 Journal of Court Innovation 259 at 264.

Using concurrent evidence in proceedings

21.80

Page 31 of 44 Chapter 21 Experts Most jurisdictions in Australia have embraced concurrent evidence as a model of expert evidence to be used in appropriate circumstances.154 Whether or not concurrent evidence will be appropriate will require an assessment of the elements of the overriding objective referred to in Chapter 1, 1.40 ff.

154 Federal Court Expert Evidence Practice Note para 6.1(g), Annexure B ‘Concurrent Expert Evidence Guidelines’, and Federal Court Rules 2011 (Cth) r 23.15 ; Supreme Court Rules 1937 (ACT) O 39.9 r 49G; Uniform Civil Procedure Rules 2005 (NSW) rr 31.19, 31.20 and 31.35 (which makes specific provision for concurrent evidence); Uniform Civil Procedure Rules 1999 (Qld) r 429B; Civil Procedure Act 2009 (Vic) s 232A.

21.81 In Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd,155 Tobias JA held that interventions and questions from the judge are permissible if their purpose is to clarify points of evidence and not cross-examine the witnesses or challenge their evidence.156 Where a judge sits without a jury, ‘the judge may intervene to control, to clarify, or to make known a provisional view’.157

Page 836

155 Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414

.

156 Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414 at [46] JA (Spigelman CJ and Santow JA agreeing).

per Tobias

157 Botany Bay Council v Rethmann Australia Environmental Services Pty Ltd [2004] NSWCA 414 at [43] per Tobias JA (Spigelman CJ and Santow JA agreeing), citing Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 at [60]

per Giles JA.

Benefits of concurrent evidence

21.82 The model of concurrent evidence reduces the level of adversarial bias: as the deliberations between the experts take place in open court, there is less opportunity for the expert to be partial because the other expert will expose and question any exaggerated conclusions. In this way, hot tubbing is preferable to expert conferences. In the words of Justice Rares, ‘The judge … has the benefit of multiple advisors who are rigorously examined in a public forum.’158 Justice Rares points out that having all the experts on the one topic together in the witness box at the one time, answering the one question on the same basis, sheds ‘days, if not weeks’ from the time usually taken under the traditional model to receive expert evidence.159

158 S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30 at 37. 159 S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30 at 36.

Page 32 of 44 Chapter 21 Experts

21.83 In Halverson v Dobler,160 after hearing concurrent evidence from four cardiologists and five general practitioners in a medical negligence case, the McClellan CJ said: This process proved both highly productive and efficient and has been of great benefit to me in resolving this case. The discussion was sustained at a high level of objectivity by all participants, each of whom displayed a genuine endeavour to assist the court to resolve the problems. The fact that ultimately they disagreed on critical issues was not due to anything other than a genuine difference of opinion about the appropriate conclusion to be drawn from the known facts.161

160 Halverson v Dobler [2006] NSWSC 1307

.

161 Halverson v Dobler [2006] NSWSC 1307 at [101]

per McClellan CJ.

Problems with concurrent evidence

21.84 There are two problems in the hot tubbing model that are prevalent in any group evidence-taking model. The first is the principle of ‘dominance’. As Kevat and Tayshete explain, dominance is a ‘recognised psychological effect’that occurs when the opinion of a ‘noted dominant authority’ causes others to change their opinion on the basis of the dominant person’s standing and reputation rather than the logic or evidence supporting their position.162 Justice Rares also explained this phenomenon, which he described as ‘overshadowing’.163 The second problem is that of ‘inhibition’. Inhibition refers to the phenomenon that people form opinions but do not express them in case they offend or contradict a more dominant personality — perhaps for fear of career repercussions.164 Justice Rares has argued that these criticisms ‘have not been validated in practice’ because of reputational incentives.165 Perhaps such incentives reduce the risk but not eliminate it.

Page 837

162 D Kevat and N Tayshete, ‘Turning to the Oracle to Improve the Quality and Utility of Expert Evidence’ (2012) 33 Civil Justice Quarterly 451 at 452. 163 S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30 at 39. 164 D Kevat and N Tayshete, ‘Turning to the Oracle to Improve the Quality and Utility of Expert Evidence’ (2012) 33 Civil Justice Quarterly 451 at 452. 165 S Rares, ‘Using the “hot tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 45 Civil Justice Quarterly 30 at 39.

The risks of adversarial and professional bias

21.85

Page 33 of 44 Chapter 21 Experts Expert evidence is made to order, whether it is ordered by the party instructing the expert, or both parties in the case of joint experts, or the court itself.166 Perhaps the most troublesome aspect of expert evidence, apart from its costs, is the extent to which, or the extent of the risk of, it being infected with adversarial and professional bias.167 It is the aim of contemporary courts to maximise the usefulness of expert evidence while at the same time reducing the risks inherent in such evidence.

166 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.48]. 167 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 169.

Reforms to the management of experts

21.86 Prior to the Woolf Reforms, parties were able to use their experts as adversarial ammunition. The experts would have little impartiality for a multitude of reasons, including that they were invested in the outcome or that they had been instructed in such a way that their opinion could only point in one particular direction.168 Much has now changed with the use of experts in litigation. In many jurisdictions in Australia, permission is required before expert witnesses are able to give evidence in legal proceedings.169 In England, no party can rely on expert evidence without obtaining permission.170 In continental systems, the court appointment of experts is standard.171 Lord Woolf considered that the expert’s role should be that of an independent adviser to the court, and on this basis it makes more sense for the court to control their use.172

168 As Professor Zuckerman explains, ‘On learning what the opponent’s experts said, a party would commonly go back to his own experts for further opinion or to engage fresh experts. The experts themselves tended to become so closely involved with the party instructing them that they saw themselves in competition with each other, and were disinclined to co-operate’: A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London,2006, [20.1]. 169 See 21.48 above. 170 Civil Procedure Rules 1999 (UK) 35.4(1); A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.24]. 171 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [9]. 172 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [25].

The retainer relationship and the risk of adversarial bias (hired guns)

21.87 A corollary of the adversarial system is that expert witnesses are employed and remunerated by the parties themselves, leaving scope for considerable conscious and unconscious adversarial bias.173 Recognition of this has led to the common criticism that such experts are ‘hired guns’. Professor Zuckerman has explained: With the best will in the world, an expert, who is paid by one party, receives instructions from one party, hears only that party’s version of the events and communicates with only that party in connection with the issues, is liable to be influenced by that party in some way or another.174

Page 838

Page 34 of 44 Chapter 21 Experts

173 K Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92 Australian Law Journal 32 at 46; A Zuckerman, The Principles of Criminal Evidence,Clarendon Law Series, OUP, 1989, pp 62–3; M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 169. 174 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.50].

21.88 Sir George Jessell MR saw the retainer relationship as giving rise to this threat as far back as 1873.175 The difficulty with expert evidence is that when the determination of an issue requires specialised expertise, a judge is unlikely to be able to scrutinise the evidence to elicit any error or inconsistency.176 This places the judge in a poor position to determine any competition between experts and issues.177 Perhaps it should not be assumed that the retainer relationship between client and expert prevents an expert from providing objective opinions. Judge Rackemann certainly considers that the ‘contention that expert opinions are able to be bought and sold is an inaccurate generalisation’.178 Professor Edmond has observed that there is little empirical evidence to support the contention that adversarial bias is common.179 With respect to Professor Edmond, an empirical study conducted in 1999 in Australia found that more than a quarter of judges reported having encountered adversarial bias on the part of experts.180

175 Lord Albinger v Ashton (1873) 17 LR 358 at 374. 176 A Zuckerman, The Principles of Criminal Evidence, Clarendon Law Series, OUP, 1989, p 63. 177 Judge Learned Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’ (1901) 15 Harvard Law Review 40 at 54–5. 178 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 170. 179 Professor Edmond, ‘Merson and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure’ (2009) 72 Law and Contemporary Problems 159. 180 I Freckleton, P Reddy and H Selby, Australian Judicial Perspectives on Expert Evidence: An Empirical Study, Australian Institute of Judicial Administration, 1999, pp 2–3, 23–9.

21.89 It may be conceded that the retainer relationship, in one sense, does not distinguish other witnesses who are called to give evidence in an adversarial setting to support one side of the argument. Neither the lay witness nor the retained expert witness is partisan in this sense. However, the fundamental point here is the risk that an expert witness can mislead judges more readily than lay witnesses because their expertise is much more difficult to dismantle on cross-examination. As Judge Posner has suggested, a retained expert witness ‘can hide behind an impenetrable wall of esoteric knowledge’.181 The retainer coupled with expertise provides the expert with both the ‘motive and means of slanting the truth in favour of the client’.182 The empirical study mentioned above supports this.

181 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 93. 182 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 93.

The professional witness versus the once-off expert

Page 35 of 44 Chapter 21 Experts

21.90 Experts who regularly give evidence at court on a retainer basis are described as ‘professional witnesses’.183 The ‘hired gun’ theory has been applied to these types of witnesses. Judge Rackemann argues that the assumption of partiality in relation to professional witnesses is unfounded as the ‘integrity of such a person is their currency’, and there is an institutional deterrence for professional witnesses to succumb to adversarial bias.184 Judge Posner has pointed out that any public judicial criticism

Page 839 of these witnesses is likely to impair the witnesses’ career as a witness, because the criticism will be raised in any future cross-examination of the witness.185 Clearly, the more an expert testifies in court without incident increases the reliability of their evidence.186 Posner conceives of this as ‘reputation capital’.187 However, it must not be overlooked that it is the professional witness who has an incentive to please clients so as to be retained again in the future. Judge Rackemann quotes a professional witness as saying that the real risk of inaccurate or biased evidence is more likely to come from professionals who rarely, or only once, give evidence because they have little to lose.188

183 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 170. 184 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 170. 185 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 94. 186 R A Posner, Economic Analysis of Law, 7th ed, Aspen, New York, 2007, p 656. 187 R A Posner, Economic Analysis of Law, 7th ed, Aspen, New York, 2007, p 656. 188 M R Rackemann, ‘The Management of Experts’ (2012) 21 Journal of Judicial Administration 168 at 170.

Professional bias

21.91 Although the risk of adversarial bias may be reduced, the same cannot be said about professional bias as this is always present. Professional bias does not stem from the retainer with the client (or the court, if the court appointed the expert).Professional bias refers to the theories or assumptions that the expert is committed to prior to being retained; it is generally unconscious and affects the expert subliminally. Depending on the extent of professional bias, it can result in unreliable expert opinion evidence being admitted and relied on.

21.92 Where an expert has such professional bias and it is known throughout their industry and perhaps even the legal services industry, there is a risk that the expert will be retained because their ‘professional bias’ will be beneficial to the client, whether the expert realises that this was the catalyst for their retainer or not. As Professor Edmond has written, ‘these experts will often be selected because they already adhere to particular assumptions and commitments or employ methodologies considered valuable … [E]xperts (including court-appointed experts) do not enter disputes without professional, institutional, and ideological “baggage”’.189 It may be argued that there is a risk, then, that if professional bias cannot be avoided and can be sought out, it may be manipulated into adversarial bias unwittingly.

Page 36 of 44 Chapter 21 Experts 189 Professor Edmond, ‘Merson and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure’ (2009) 72 Law and Contemporary Problems 173.

21.93 On the other side of the coin, Judge Posner suggests that professional bias (whilst unavoidable) may be a good thing in some situations because, for example, if an expert has a record of academic publication, any attempt to reject their previous work on the stand ‘will invite devastating cross-examination’.190 That is, if the published expert departs from their professional bias it will be noticeable; they will be scrutinised heavily because they will give the appearance of being partial to their

Page 840 client. As professional bias is impossible to eliminate, using it to the advantage of the interests of justice seems far preferable.

190 R A Posner, ‘The Law and Economics of the Economic Expert Witness’ (1999) 13 Journal of Economic Perspectives 91 at 94.

Practical methods of minimising the risk of adversarial bias

21.94 As explained above,191 the expert’s overriding duty to the court encompasses two categories of duty: transparency and impartiality.192 Transparency mandates that the expert report should be comprehensible, indicate the underlying assumptions, the reasons for conclusions, and any remaining doubts.193 Impartiality requires the expert to provide the court with an objective view, uninfluenced and unencumbered by external influences to the expert. It would seem that transparency has priority over impartiality, as Factortame Ltd v Secretary of State for the Environment, Transport and the Regions194 shows us, as that case confirmed that the doctrine of apprehension of bias has no application to expert witnesses.195 Professor Zuckerman explains, ‘transparency is more important than independence because it enables the opponent and the court to take account of any lack of independence from which an expert may suffer’.196

191 See 21.40. 192 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.14]. 193 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.15]. 194 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] 4 All ER 97 (CA). 195 Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2002] 4 All ER 97 (CA). 196 A Zuckerman, Zuckerman on Civil Procedure, 2nd ed, Sweet & Maxwell, London, 2006, [20.18].

Expert’s immunity from civil proceedings

21.95 Despite reforms in England, Australia continues to apply the traditional rule that expert witnesses are immune from civil action with respect to evidence given during legal proceedings.197 Although the traditional rule applied only to

Page 37 of 44 Chapter 21 Experts expert evidence given orally in proceedings, the immunity is now afforded in Australia to expert reports and affidavits prepared for the purposes of litigation.198

197 Cabassi v Vila (1940) 64 CLR 130

; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [39]

;

Commonwealth v Griffiths [2007] NSWCA 370 . For an early statement of the rule, see Dawkins v Lord Rokeby (1873) LR 8 QB 255 . Lay witnesses continue to enjoy immunity from suit, demonstrating the fundamental distinction between witnesses of fact and expert witnesses: Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at 208 per Lord Hoffmann. Originally, this immunity was from defamation for evidence given at trial: Dawkins v Lord Rokeby (1873) LR 8 QB 255 . That lay witnesses continue to have immunity from suit has been recently reaffirmed by the High Court of Australia (D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 ); the Supreme Court of the United States (Briscoe v LaHue (1983) 460 US 325); the Supreme Court of New Zealand (Lai v Chamberlains [2007] NZLR 7); and Canada (Reynolds v Kingston (City) Police Services Board (2007) 84 OR (3d) 738 (Ontario Court of Appeal)). 198 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 NSWCA 311

; Ollis v New South Wales Crime Commission [2007]

; Commonwealth v Griffiths [2007] NSWCA 370

.

21.96 The High Court confirmed the application of the immunity in Australia in D’Orta-Ekenaike v Victoria Legal Aid.199 Gleeson CJ, Gummow, Hayne and Heydon JJ said:

Page 841   From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned,perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.200

Other jurisdictions in Australia have continued to apply the immunity.201

199 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

.

200 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [39]

.

201 See, for example, R v Beydoun (1990) 22 NSWLR 256 at 259

; Mann v O’Neill (1997) 191 CLR 204

v Woods [2001] TASSC 96 .

; Jovanovic

; Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd [2003] NSWSC 1120

Page 38 of 44 Chapter 21 Experts

English reforms

21.97 In Stanton v Callaghan,202 the English Court of Appeal held, in accordance with the traditional rule, that experts were entitled to immunity from suit in respect of statements or concessions made by them in the course of proceedings, even if not made while testifying at trial. At a pre-trial conference between experts, the plaintiff ’s expert agreed with the defendants’ expert that a cheap remedial solution to subsidence would be adequate. The plaintiff compromised the action accordingly, but it later turned out that the solution was inadequate and the plaintiff sued his expert. The plaintiff was therefore left without compensation. Public policy considerations influenced the court in reaching this decision. It was felt that experts needed encouragement to provide assistance to the court free of fear that they may be sued by their own party if they undermined the party’s interests.

202 Stanton v Callaghan [2000] 1 QB 75 483

; [1992] 2 All ER 122

; [1998] 4 All ER 961

. See also Palmer v Durnford Ford (a firm) [1992] QB

.

21.98 However, once advocate immunity was abolished by the House of Lords in Arthur J S Hall & Co (a firm) v Simons,203 the reasons for maintaining immunity for experts were weakened to such an extent that it was only a question of time before expert immunity followed suit.204

203 Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615

; [2000] 3 All ER 673, HL

.

204 Phillips v Symes (a bankrupt) (expert witnesses: costs) [2004] EWHC 2330, Ch; [2005] 1 WLR 2043

.

21.99 Expert immunity was abolished by the Supreme Court in Jones v Kaney.205 Prior to this decision, expert witnesses had enjoyed immunity from suit for some 400 years.206 The issue was whether the plaintiff’s psychologist in a personal injury claim against the plaintiff’s former employer was negligent. The claim that the expert

Page 842 was negligent stemmed from the circumstances that,following a pre-trial conference of experts, a joint written statement was prepared with the other side’s expert. The plaintiff ’s expert resiled from her earlier diagnosis of posttraumatic stress syndrome without explaining why or on what basis and without amending her expert report, effectively leaving the plaintiff with no case to advance.207 This was quite a departure from the normal standard as the relevant practice direction required experts to inform their instructing clients without delay of any change in opinion and provide them with the material and reasons for the change.The trial judge struck out the claim on the basis that the expert enjoyed immunity from suit as an expert witness but granted a certificate under s 12 of the Administration of Justice Act 1960 to appeal directly to the Supreme Court.208 The issue for the Supreme Court was whether the expert enjoyed immunity from suit. If not, a finding of negligence was open to make.

Page 39 of 44 Chapter 21 Experts 205 Jones v Kaney [2011] UKSC 13; [2011] 2 All ER 671 206 Cutler v Dixon (1585) 4 Co Rep 14b

.

. Prior to Jones, the leading case confirming that expert witnesses enjoy

immunity from suit was Stanton v Callaghan [2000] 1 QB 75

.

207 An extended version of the facts is as follows: The claim was between client and former expert. In earlier proceedings, the plaintiff suffered physical and psychiatric injuries in a car crash and instructed the defendant expert to examine him and prepare a report. That report concluded that he was suffering from post-traumatic stress syndrome. During the trial between the plaintiff and the person who caused the crash, the district judge ordered that the experts of both sides prepare a joint report. Within that process of preparing a joint report the experts spoke on the telephone after which the opposing expert prepared a draft joint report, which the defendant expert signed, which said that the plaintiff was being deceptive and deceitful and did not have any psychiatric disorder. When questioned about the change in her position, she claimed that the joint statement did not reflect what she had agreed but that she had felt under pressure to sign it. The plaintiff’s application to change his expert was refused and he then settled his claim and brought proceedings against his former expert for negligence. The judge hearing the matter struck it out on the basis that the defendant enjoyed immunity from suit as an expert witness but granted a certificate under s 12 of the Administration of Justice Act 1960 to appeal directly to the Supreme Court. 208 Jones v Kaney [2011] 2 AC 398

(HL) at [2] per Lord Phillips of Worth Matravers PSC.

21.100 The rationale for the immunity was that it prevented a disgruntled litigant from bringing proceedings against those who had given evidence against them.209 There was a presumed risk that if the immunity were not in place it would have a ‘chilling effect’ by making experts reluctant to testify and plaintiffs less likely to litigate for fear of further litigation against their expert.210 Alternatively, it was thought that if the immunity were removed, expert witnesses would be less likely to provide an account adverse to their client for fear of subsequent litigation.211 This led to the recognition of a host of other rationales, such as to encourage honest and well-meaning persons to assist justice on the merits,212 to ensure that all witnesses will speak freely and without

Page 843 fear,213 and to prevent a multiplicity of proceedings where the accuracy of an expert’s evidence would have to be tried all over again.214

209 Jones v Kaney [2011] 2 AC 398 (HL) at[11] per Lord Phillips of Worth Matravers PSC. Hence, the immunity was similar to that enjoyed by a barrister, which was an immunity from a claim by their own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client. However, this broad immunity had been previously abolished in Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 . The only immunity that remains to a barrister is the absolute privilege from a claim in defamation in relation to statements made in the course of the conduct of legal proceedings: Medcalf v Mardell [2003] 1 AC 120 Woodborough. 210 Jones v Kaney [2011] 2 AC 398

at 143

per Lord Hobhouse of

(HL) at[15],[40] per Lord Phillips of Worth Matravers PSC.

211 See Jones v Kaney [2011] 2 AC 398

(HL) at [40] per Lord Phillips of Worth Matravers PSC.

212 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 Clyde. 213 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435

at 447

at 461

per Lord Hope, 460 per Lord

per Lord Clyde.

214 Roy v Prior [1971] AC 470 at 480 per Lord Wilberforce. In Jones v Kaney [2011] 2 AC 398 (HL), Lord Collins of Mapesbury provided the following summary of rationales in favour of the immunity: ‘absence of immunity would lead to a loss of objectivity, and the threat of civil liability would encourage experts to asset extreme positions favourable to the client; it would run counter to the fundamental reason for expert evidence, which was to assist the court in a matter which was beyond its fact-finding capabilities; there is a need to promote finality of judgments by discouraging endless collateral litigation; and fewer experts would be willing to become involved in litigation if they could later be sued by the party who retained them’: at [79].

Page 40 of 44 Chapter 21 Experts

21.101 In a 5:2 decision, the Supreme Court allowed the appeal and abolished the immunity.215 The rationales in favour of removing the immunity, following American jurisprudence, were said by Lord Collins to be that the reality is that an expert retained by one party is not an unbiased witness, and the threat of liability for negligence may encourage more careful and reliable evaluation of the case by the expert; that the threat of liability will encourage experts to not take extreme views; that the risk of collateral litigation is exaggerated and based on no empirical evidence; and finally that there is no basis for suggesting that experts will be discouraged from testifying if immunity were removed because most are professional people who are insured or can obtain insurance readily, and those who are not insured can limit their liability by contract.216

215 Jones v Kaney [2011] 2 AC 398 216 Jones v Kaney [2011] 2 AC 398 Heywood JSC.

(HL) at[62] per Lord Phillips of Worth Matravers PSC. (HL) at[81] per Lord Collins of Mapesbury, [67] per Lord Brown of Eaton-under-

21.102 Lord Philips explicitly rejected the notion that there is a tension between the overriding duty to the court and the duty to the client:217 At the end of every expert’s report the writer has to state that he understands and has complied with his duty to the court. Where an expert witness is retained, it is likely to be … on terms that the expert will perform the functions specified in the CPR. The expert agrees with his client that he will perform the duties that he owes to the court. Thus there is no conflict between the duty that the expert owes to his client and the duty that he owes to the court.218

217 Jones v Kaney [2011] 2 AC 398

(HL) at[62] per Lord Phillips of Worth Matravers PSC.

218 Jones v Kaney [2011] 2 AC 398

(HL) at[49] per Lord Phillips of Worth Matravers PSC.

21.103 Lord Philips later added that because the duty to the client incorporates the duty to the court, ‘he should not be concerned that [performing the duty of an expert] will result in his being sued for breach of duty’.219 In a similar vein, Lord Dyson JSC expressly found that: There is no conflict between the duty owed by an expert to his client and his overriding duty to the court. His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. The discharge of the duty to the court cannot be a breach of duty to the client.220

Page 844

Page 41 of 44 Chapter 21 Experts

219 Jones v Kaney [2011] 2 AC 398

(HL) at[56] per Lord Phillips of Worth Matravers PSC.

220 Jones v Kaney [2011] 2 AC 398

(HL) at[99] per Lord Dyson JSC.

21.104 In Ridgeland Properties Ltd v Bristol CC,221 the Court of Appeal applied Jones v Kaney and refused to reopen proceedings to admit new evidence in relation to a tribunal determination. The owner, his solicitor and expert witness failed to adduce evidence that might have been material of earlier offers made for a property, which would have increased its market value and compensation award. The court considered that the ability of the owner to sue his solicitor or expert for negligence was a ‘powerful reason’ for refusing the application.

221 Ridgeland Properties Ltd v Bristol CC [2011] EWCA Civ 649.

21.105 Therefore, the abolition of the immunity was itself a way to reduce the costs and delays of reopening matters, because in situations like Ridgeland the plaintiff can sue the lawyer and expert, both of which would be covered by insurance. Alternatively, a court could make an order for costs directly against the expert. Posner has pointed out that these types of ‘incentives’ pressure the expert to be ‘neutral’ and ‘honest’.222 For Posner, these incentives include the financial interest in having a reputation as an ‘honest’ expert.223

222 R A Posner, ‘An Economic Approach to the Law of Evidence’ (1999) 51 Stanford Law Review 1477 at 1537. 223 R A Posner, ‘An Economic Approach to the Law of Evidence’ (1999) 51 Stanford Law Review 1477 at 1537.

21.106 The abolition of the immunity is not without some degree of risk, which the majority recognised. Lord Brown, for example, thought that experts would be likely to be sued only in highly exceptional circumstances, and urged the courts to protect experts from specious claims and to guard against attempts to exert pressure on witnesses.224 Such precautions are justified not just as a matter of policy but also because the duty owed by an expert to the client is necessarily qualified by the expert’s duty to the court.225 In Jones v Kaney, the expert’s breach of duty was so serious as to amount, in all probability, to a breach of the duty to the court as well as to the client. In less clear situations the issue of expert breach of duty may require a retrial of the underlying issue on which the expert provided an opinion.

224 Jones v Kaney [2011] UKSC 13; [2011] 2 All ER 671 at [68]

.

225 Jones v Kaney [2011] UKSC 13; [2011] 2 All ER 671 at [50],[99]

.

Page 42 of 44 Chapter 21 Experts

Assessors Introduction

21.107 An assessor is a person appointed by the court to assist the court in the discharge of its judicial role.226 The Woolf Final Report encouraged courts to make use of their powers to appoint expert assessors to assist the judge in complex litigation as well as preside over meetings between the parties’ experts to help them reach an agreement.227

226 for an incisive examination of the subject, see D Dwyer, ‘The Future of Assessors under the CPR’ (2006) 25 Civil Justice Quarterly 219. 227 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [58].

21.108 Assessors are normally persons who possess specialist knowledge in a field that is pertinent to an issue that the court is called upon to decide. Their function is

Page 845 to sit with the court hearing the evidence and help the court understand the evidence and assess its implications. Although their role is largely informative, they can play a crucial part in the decision-making process because it is inevitable that judges would rely heavily on assessors where the determination of the issues demands specialist training or knowledge, which the assessors possess and the judge does not.

21.109 Assessors fulfil a different role from that of expert witnesses. Assessors sit with the judge and assist the court in its deliberations both during the presentation of evidence and argument and after they have been concluded. Since an assessor assists the court in its judicial role, an assessor cannot be cross-examined.228 However, court rules governing experts have narrowed the differences between assessors and experts.229 In particular, the role of a single joint expert appointed at the request of the court comes close to that of an assessor, especially when the assessor’s main function is to prepare a report concerning a matter in issue.

228 The Queen Mary (1949) 82 LlL Rep 609 at 612 per Scott LJ; The Ship Sun Diamond v The Ship Erawan (1975) 55 DLR (3d) 138. 229 I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, Sydney, 2013, p 355.

21.110

Page 43 of 44 Chapter 21 Experts Assessors advise the court on the issues and may well have considerable influence on the outcome. The parties must therefore have an adequate opportunity to respond to the assessors’ advice in much the same way as they must have an opportunity to challenge expert evidence.

21.111 In the past, assessors were traditionally appointed in admiralty proceedings and in patents disputes.230 Their use in other proceedings has been limited.231 The limitation in their use must be, at least in part, due to the uncertainty surrounding whether the status of the advice they give to judges is expert evidence or simply assistance to help judges with technical questions. The balance of case law suggests it is the former.232

230 The Magna Charta (1871) 1 Asp MLC 153

; The Beryl (1884) 9 PD 137

the SS Australia v Owners of Cargo of SS Nautilus [1927] AC 145 The Queen Mary (1949) 82 LlL Rep 609.

at 141

per Brett MR; Owners of

; The Clan Lamont (1946) 76 LIL Rep 521;

231 See generally I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed, Law Book Co, 2013, p 355. 232 Owners of the SS Australia v Owners of Cargo of SS Nautilus [1927] AC 145 at 152 per Lord Sumner and at 150 per Lord Dunedin; Cement Linings Ltd v Rocla Ltd (1940) 40 SR (NSW)491 at 494; Richardson v Redpath, Brown & Co Ltd [1944] AC 61 at 70–1 per Viscount Simon LC; The Queen Mary (1949) 82 LlL Rep 609 at 612 and per Scott LJ; R v Jenkins; Ex parte Morrison [1949] VLR 277

.

21.112 The extent to which assessors are likely to be appointed under the rules of court in Australian jurisdictions is limited. Considerations of cost and proportionality are of crucial importance, as the English case of Balcombe Group plc v London Development Agency233 illustrates. The development agency applied for the appointment of an assessor to assist with the evaluation of sums due to the defendants in connection with the acquisition of land for use in the 2012 Olympic Games. The court refused the application as being disproportionate in view of the relatively limited sum claimed, £600,000, the costs already incurred, and the fact that the Technology and Construction Court was well equipped to handle quantum disputes arising out

Page 846 of property development and building work without the need for expert assistance. It is therefore unlikely that assessors will be used in cases of modest value, where the parties are already assisted by experts.

233 Balcombe Group plc v London Development Agency [2008] EWHC 1392 (TCC).

Appointment of assessors

21.113 Sections or rules in some jurisdictions provide the court with a general power to appoint assessors.234 However, in the Federal Court, there is no such power. Rather, the ability of an assessor to be appointed depends on the particular jurisdiction being exercised by the court. For example, s 258 of the Navigation Act 1912 (Cth) provides that where proceedings are brought against a person under the collision regulations, assessors are required to

Page 44 of 44 Chapter 21 Experts assist the court. Section 319 also provides that assessors may be used in any court in which a salvage dispute is referred for summary determination.Section 37A of the Native Title Act 1993 (Cth) provides that the GovernorGeneral may appoint assessors to assist the court in the exercise of its jurisdiction under that Act.235

234 Court Procedures Rules 2006 (ACT) r 1530; Uniform Civil Procedure Rules 1999 (Qld) r 500; Supreme Court Act 1935 (SA) s 71; Supreme Court Rules 2000 (Tas) r 560; Supreme Court Act 1986 (Vic) s 77; Supreme Court Act 1935 (WA) s 56. 235 See also Federal Court Rules 2011 (Cth) r 34.128. Section 83 of the Native Title Act 1993 (Cth) allows the Chief Justice to direct an assessor to assist the court in relation to a proceeding, subject to the control and direction from the court.

Pros and cons in the use of assessors

21.114 One benefit of the assessor model is that it reduces the risk of adversarial bias as there is no retainer relationship with the parties.236 Professor Wigmore suggested that this model be used to remove ‘the partisan feature’ of the traditional model.237 Lord Woolf rejected the argument that the use of assessors would usurp the role of the judge and saw the role of an assessor as an ‘educator’ of the judge, not the decision-maker.238 With respect, proximity of the assessor to the judge and the judicial function gives the appearance of usurpation. Looking to Austria by way of example, a jurisdiction that makes heavy use of assessors, the argument of usurpation is rampant.Verkerk points out that the Austrian experience has seen the judge adopt the role of ‘supervisor’ when an assessor has been appointed.239 As in the United Kingdom, the Austrian judge is not bound by the findings of the assessor.240 It may be argued that this quells any suspicion of usurpation. However, as Verkerk points out, ‘in practice, the judge almost always takes a decision which is in line with the findings of the expert’.241

236 R Verkerk, ‘Comparative Aspects of Expert Evidence in Civil Litigation’ (2009) International Journal of Evidence 167 at 170. 237 J H Wigmore, Evidence in Trials at Common Law, Vol 2, Little, Brown, Boston, 1979, p 762. 238 Lord Woolf MR, Access to Justice Inquiry, Final Report, July 1996, Ch 13 ‘Expert Evidence’, [58]–[59]. 239 R Verkerk, ‘Comparative Aspects of Expert Evidence in Civil Litigation’ (2009) International Journal of Evidence 167 at 174. 240 R Verkerk, ‘Comparative Aspects of Expert Evidence in Civil Litigation’ (2009) International Journal of Evidence 167 at 175. 241 R Verkerk, ‘Comparative Aspects of Expert Evidence in Civil Litigation’ (2009) International Journal of Evidence 167 at 175.

End of Document

Chapter 22 Trial and Evidence Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 22 — Trial and Evidence

Chapter 22 Trial and Evidence Page 847 [Current to May 2018]

Introduction

22.1 The trial is the final and most visible stage of the litigation process. It is conducted in public before a judge or, less commonly, a jury.1 At the trial, the parties present their evidence, probe their opponent’s evidence, and advance their arguments. Although judgment after trial is sometimes perceived as the primary means by which proceedings are resolved, this has never been entirely accurate and is even less so today. The overwhelming majority of cases are resolved by settlement, by default judgment or by summary judgment.2 The overriding objective is served by disposing of as many proceedings as possible without trial.

Page 848

1

The Australian Capital Territory and South Australia have abolished juries in civil trials altogether: Supreme Court Act 1993 (ACT) s 22; Juries Act 1927 (SA) s 5. In other jurisdictions, trial by jury remains available in civil proceedings, albeit in very limited circumstances: Federal Court of Australia Act 1976 (Cth) ss 39–40; Supreme Court Act 1970 (NSW) s 85; Supreme Court Rules (NT) r 47.03; Uniform Civil Procedure Rules 1999 (Qld) r 472 (see also Supreme Court of Queensland Act 1991 s 46); Supreme Court Civil Procedure Act 1932 (Tas) s 29; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.02; Supreme Court Act 1935 (WA) s 42.

In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [3],[7] on jury trials:

, Gleeson J commented as follows

At a trial by jury, the functions of judge and jury are clearly distinguished. The judge decides issues of law; the jury decides issues of fact. A judge, whether sitting alone or presiding at a jury trial, gives reasons for his or her decisions …Juries give no reasons for their decisions. The resolution of disputed issues of fact … by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly. The alternative is to commit the decision to a professional judge, who is obliged to give reasons for the decision. In one process the acceptability of the decision is based on the assumed collective wisdom of a number of representatives of the community,properly instructed as to their duties, deciding the facts, on the evidence, as a group. In the other process, the acceptability of the decision is based on the assumed professional knowledge and experience of the judge, and the cogency of the reasons given … Even so, decision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.

Page 2 of 41 Chapter 22 Trial and Evidence 2

See Justice Hayne, ‘The Vanishing Trial’, paper delivered at the Supreme and Federal Courts Judges Conference, 23 January 2008, Sydney.

22.2 While only a modest proportion of proceedings culminate in a trial on the merits, the rules governing trial are of great importance. This is for two reasons. First, disputes that go all the way to trial tend to be the more important or difficult cases, involving unusual fact patterns or controversial or novel points of law. The process by which such disputes are ultimately resolved is of considerable significance to both the individual litigants involved and the public at large. Secondly, the likelihood of parties settling their dispute is influenced by an assessment of their prospects at trial, which is in turn influenced by the trial rules. Similarly, the availability of summary judgment is influenced by whether a claim or defence has a real prospect of success at trial. It is no exaggeration to say, then, that the litigation process is conducted from the start in the shadow of these rules.

22.3 The Australian trial has undergone considerable transformation in recent decades. In particular, a significant change has taken place in the relationship between the pre-trial and trial stages of a proceeding.3 In the past, a sharp division existed between these stages. The pre-trial process consisted of a series of procedural steps undertaken by the parties, at various time intervals, without much court interference. The court was not involved in the identification of the issues or in the preparatory steps for trial. Nor did it have much say about the extent and nature of the evidence to be presented at the trial. The court had limited powers to dictate in advance of the trial the course that the trial would take and, having not been meaningfully involved in pre-trial processes, was not well placed to maximise trial efficiency.

3

See discussion in Chapter 1, 1.92 ff.

22.4 The traditional trial was very much an oral affair. The trial judge arrived at the trial with little or no prior knowledge of the issues in dispute. By means of opening speeches the advocates had to introduce the case to the court, inform it of the background, explain the issues, and outline the means they were going to employ in an attempt to establish their respective cases. Witness evidence was given orally by means of examination-in-chief and cross-examination. Advocates would read out the documentary evidence to the judge. They presented legal authority and developed their arguments orally. Since the judge began the process with a minimal grasp of the case, the advocates had a considerable degree of control over the hearing and its duration.

22.5 Trial is now a very different affair. Under the modern procedure, the presentation of evidence and of argument begins well before the trial. Pre-trial orders require parties to supply the court (and each other) with virtually all the evidence and arguments on which they will rely in advance of the trial. Witness statements, if ordered,4 expert

Page 849 reports, outlines of opening submissions, lists of objections to evidence and an agreed chronology and court book ordinarily all have to be made available to the court ahead of the trial. The advanced provision of these documents equips the court with comprehensive information about the parties’ positions before the hearing begins.

Page 3 of 41 Chapter 22 Trial and Evidence

4

As to when witness statements might be ordered, see Chapter 20, 20.19. The default position is that witnesses give their evidence at trial orally: Court Procedures Rules 2006 (ACT) r 6700(1); Uniform Civil Procedure Rules 2005 (NSW) r 31.1(2); Supreme Court Rules (NT) r 40.02(b); Uniform Civil Procedure Rules 1999 (Qld) r 390(a); Supreme Court Civil Rules 2006 (SA) r 212; Supreme Court Rules 2000 (Tas) r 458(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 40.02(b); Rules of the Supreme Court 1971 (WA) O 36 r 1. There is no default position in the Federal Court. Rule 5.04 permits the court to make such directions for the management, conduct and hearing of a proceeding as it sees fit.

22.6 It is normal, in most cases, for the judge to peruse these documents before the opening of the trial and, in consequence, for the presentation of oral evidence and argument to be much more limited than in the past. The judge may dispense with evidence-in-chief, direct that experts limit their evidence to their written reports and indicate that he or she has already read the documentary evidence on which the parties propose to rely, such that it need not be read out in court. As a result,apart from cross-examination of controversial witnesses, much of the trial is now devoted to clarifying points which were unclear on the written material or otherwise require development, and to oral submissions on difficult points. It is therefore possible to say that the final adjudication process is already under way well before the trial has commenced.

22.7 The present chapter deals with directions for and the conduct of trial. It also provides a general account of some of the more important rules of evidence, including the burden and standard of proof, the criteria for the admissibility of evidence and key exclusionary rules, and the competence and compellability of witnesses.

Trial arrangements

22.8 The efficacy and efficiency of the trial is in large measure dependent on the quality of the preparations for it. For this reason, the court expects parties to turn their minds to pre-trial steps early in the litigation process and be able to address the court on the trial process most appropriate to their case. This expectation is reflected in Federal Court of Australia Practice Note CPN-1, which provides, at [13.2]–[13.3]: Prior to any pre-trial case management hearing, it is expected that the parties will have conferred in an effort to identify and agree on the most efficient trial process and proposed pre-trial orders for consideration by the Court … At the pre-trial case management hearing, the parties will be expected to have considered, and be in a position to properly address the Court on … how the trial will best be managed, including an accurate estimate of the hearing time, the order and timing of witnesses … and any special requirements relating to witnesses.

Trial timetable

22.9

Page 4 of 41 Chapter 22 Trial and Evidence Before the trial, the court will fix a ‘trial timetable’ in consultation with the parties. The timetable consists both of an overall determination of the duration of the trial and of a time allocation for the different trial components,such as openings, cross-examination, and legal argument.5 The nature and complexity of the case will

Page 850 inform the level of detail to which the trial timetable will descend. The court has power to control all aspects of the trial. It may, for example, limit the time available to each party to present its case, limit the number of witnesses parties may call on particular issues, or generally, or limit the time for opening addresses, cross-examination or closing addresses.6

5

For a comprehensive list of the matters which might be considered in the setting of, and reflected in, a trial timetable, see Schedule 3 to Supreme Court of Victoria Practice Note SC CC 1.

6

Federal Court Rules 2011 (Cth) rr 5.04 and 30.23; Court Procedures Rules 2006 (ACT) rr 1325 and 1401; Uniform Civil Procedure Rules 2005 (NSW) r 29.5; Supreme Court Rules (NT) r 34.01 (see also rr 48.18 and 48.22(3)); Uniform Civil Procedure Rules 1999 (Qld) r 367; Supreme Court Rules 2006 (SA) rr 117 and 209; Supreme Court Rules 2000 (Tas) rr 415 and 550; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 34.01 and 49.01(1); Rules of the Supreme Court 1971 (WA) O 34 r 5A.

22.10 A trial timetable is most commonly made after the close of pleadings, once the parties have made discovery, undertaken mediation and exchanged lay and expert evidence. In additional to governing the conduct of the trial itself, the timetable will also require the parties to file certain documents in advance of the trial. Most commonly, these documents will include a court book, a chronology of key facts and events and a written outline of each party’s opening submissions.7

7

See, for example, ss 14 and 15 of Supreme Court of Victoria Practice Note SC CC 1, and Schedules 7 and 8 thereto, which contain a template set of pre-trial orders.

22.11 The court has the power to revise timetables. However, extending the overall duration of the trial could seriously disrupt the court’s arrangements for other cases, and greatly inconvenience the legal representatives. Given that the overriding objective requires the court to have regard to the interests of all court users, and not just the parties, an overall trial allocation would be revised upwards only where a compelling reason presents itself.

22.12 Given the importance attached to compliance with the trial timetable, advocates should consider as early as possible the adequacy of the time allocations and take appropriate steps if they find them insufficient. A party who objects to the timetable should seek its variation without delay. Expedition is essential in this regard.8

8

See generally Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [5],[25],[30] French CJ.

per

Page 5 of 41 Chapter 22 Trial and Evidence

22.13 Since the time allocated to trials will tend to be realistic rather than generous, advocates need to make careful and detailed preparations in order to be able to present their client’s case adequately within the limits of the prescribed timetable. If a failure to comply with the trial arrangements necessitates an adjournment, the court may disallow costs as between solicitor and client, order the party or person responsible to pay the costs thrown away or make any other order it thinks fit.

Statement of agreed facts and lists of issues

22.14 To further the overriding objective, parties should aim to furnish the court with an easily comprehensible account of the issues in dispute in advance of trial. The court may require the parties to file a statement of agreed facts, in which the facts in the proceedings that are agreed between the parties are identified, an agreed list of

Page 851 issues in which the the questions arising for determination by the court defined, or both.9 No evidence need be led in respect of facts which are agreed.10

9

The civil procedure rules in each jurisdiction are silent on the need to file and serve a statement of agreed facts or a list of agreed issues, the protocol to be followed by the parties in agreeing such documents, or what occurs in the (not infrequent) event of disagreement. The obligation to prepare such documents ordinarily arises only by reason of a court order imposing that obligation. The order itself will usually outline a process by which agreement is to be reached, or otherwise require the parties to confer with a view to reaching agreement and may specify what is to occur in the event of disagreement, such as parties filing a statement or list only insofar as can be agreed, with areas of disagreement identified, or parties each filing a list of the issues as they perceive them. Such matters are likely to be canvassed with the judge when the orders are proposed.

10 Uniform Evidence Acts s 191.

Outline of submissions

22.15 Parties are ordinarily ordered to file written outlines of their submissions in advance of most superior court trials.11 Such outlines are also desirable in contested interlocutory disputes, and inferior court trials. The function of outlines is to provide the court with a succinct sketch of the arguments that each party will forward at the trial and of the evidence and legal authorities on which they propose to rely in support of those arguments. In addition to assisting the court, outlines also assist the parties by alerting them, in no uncertain terms, to the arguments which will be put against them at trial. They may also highlight gaps in the existing evidence and make plain the strengths and weaknesses of each party’s legal position, facilitating better trial preparation and, in some cases, settlement.

11 The civil procedure rules are, with the exception of appeal proceedings, silent on the need to file and serve outlines of submissions in advance of the hearing. The obligation to prepare such a document ordinarily arises only by reason of a court order imposing the obligation. That order will usually restrict outlines to a certain number of pages, appropriate to the nature and complexity of the case, and require each party to file and serve their outlines by a certain date or dates (depending on whether they are to be exchanged simultaneously or sequentially).

Page 6 of 41 Chapter 22 Trial and Evidence

22.16 Federal Court of Australia Practice Note CPN-1 deals briefly with written submissions. The practice note relevantly provides at [14.1]: Written submissions can be a very useful method of shortening addresses in both final and interlocutory hearings. Sometimes, however, their usefulness is limited by how they are prepared. They should be seen as a way of summarising and simplifying issues to assist the Court, especially assisting the Court in writing a judgment. Wherever possible, the parties should attempt to agree on and use common headings for the parties’ written submissions. To ensure their utility, written submissions should be signed by, and be the responsibility of, the advocate who is to address the Court at the relevant hearing. Voluminous, repetitive and prolix submissions may be rejected by the Court with consequential costs orders.

Chronologies

22.17 Parties are often required to produce chronologies of the main events in the history of the dispute. Unlike outlines of submissions, chronologies should be

Page 852 non-contentious and, insofar as possible, agreed between the parties.A chronology should indicate if there is a dispute about any event stated in the chronology.

Court books

22.18 The term ‘court book’ refers to the bundle of documents on which the parties, taken together, propose to rely at trial. Typically, the bundle will include the originating process, the current pleadings and any other court documents of relevance to the trial, followed by witness statements and, thereafter in strict chronological order, the documents each party intends to tender in evidence-in-chief or refer to in cross-examination.12 The court book thus serves to bring together, in a single, logically organised and paginated place, all the documents to be used at trial. Its primary function is convenience.13

12 The civil procedure rules in most jurisdictions are silent on the topic of court books (cf. Court Procedures Rules 2006 (ACT) r 1312 and Supreme Court Civil Rules 2006 (SA) r 121 regarding ‘trial books’). The obligation to prepare a court book ordinarily arises only by reason of a court order imposing that obligation. The order itself will specify the content of that obligation, with practice notes in some jurisdictions providing guidance as to the form the order might take: for example, Supreme Court of Victoria Practice Note SC CC 1, [15.1]–[15.11]. 13 On the preparation of court books and their importance generally, see Justice Hargrave, ‘What A Judge Wants: Documentary Advocacy’, remarks of the Honourable Justice Hargrave, Principal Judge of the Commercial Court, Supreme Court of Victoria at Leo Cussen Centre for Law, Melbourne, 30 March 2017, [9]–[33], available online at

(accessed 19 March 2018).

22.19

Page 7 of 41 Chapter 22 Trial and Evidence The responsibility for preparation of the court book lies with the plaintiff, but the contents of the court book must be agreed by all the parties. Plaintiffs should be wary of acceding to requests from other parties to include, or otherwise themselves including within the court book, documents which duplicate material already included or which are of no more than peripheral relevance to the issues in dispute.

22.20 In Yara Australia Pty Ltd v Oswal ,14 the applicants in an appeal concerning the provision of security for costs by the respondents filed application books which consumed six lever arch folders and contained over 2700 pages of material. The Victorian Court of Appeal found that the application books ‘contained voluminous unnecessary material’, very little of which was the subject of any reference in oral argument and over half of which was ‘entirely unnecessary to the questions raised by the notice of appeal’.15 In consequence, the court made orders that the applicants’ solicitors be disallowed 50 per cent of their costs of and incidental to the preparation of the application books, and required them to indemnify the applicants for 50 per cent of the costs the respondents incurred as a result of the excessive or unnecessary content of the application books, which costs the applicants were otherwise required to pay.16 The court relevantly observed:17

Page 853

14 [2013] VSCA 337

per Redlich JA, Priest JA and Macaulay AJA.

15 [2013] VSCA 337 at [49]. The term ‘application book’ refers to a court book in an appeal proceeding. 16 [2013] VSCA 337 at [61]. 17 [2013] VSCA 337 at [40], [52], [59].

  Overly voluminous application material strains the administrative resources of the Court and the time of judges themselves. Where a large volume of material is provided to a court that is unnecessary and excessive, there will be a prima facie case that the overriding obligation has been breached. The court was provided with six application folders, comprising submissions, affidavit material, transcript and authorities running to over 2700 pages … The affidavit material from the parties’ solicitors contained a variety of largely extraneous materials, including old statements of claim, swatches of email correspondence, material from related proceedings in Western Australia, and transcripts from related hearings in the Supreme Court of Victoria. Much of this material was either peripheral to the application or entirely unnecessary. The court was burdened with excessive material. The applicants and the respondents were burdened with the costs of that material.There has been a breach of the overarching obligation to ensure that costs are reasonable and proportionate by including in the application books voluminous material that was extraneous or repetitive and excessive. An order that may be appropriate is that the solicitor-client costs which each legal practitioner may seek to recover from their client not include a percentage of the costs of the preparation of the application books. A further order that could also be made is that the legal practitioners for the applicants pay a portion of the respondents’ costs of the application that are related to preparation for the hearing. We will hear from the parties as to what orders we should pronounce as to costs in light of the breach of the overarching obligations of the Act.

Authorities

22.21

Page 8 of 41 Chapter 22 Trial and Evidence In addition to the documents referred to above, parties may also be required to file a list of the authorities on which they propose to rely.18 This affords the court the opportunity to review the authorities said to be on point in advance of trial. Practice notes in most jurisdictions provide guidance on each court’s preferred approach to the use, citation and provision of authority therein, which is based, in part, on each court’s practice regarding the citation of authorities in its own judgments.19 As a general rule, an authorised report should always be cited in preference to another report series or an unreported judgment.20

Page 854

18 The filing of such a list is mandatory in appeal proceedings in certain jurisdictions: see, for example, Federal Court Rules 2011 (Cth) rr 33.27(1)(c) and 36.55(1)(c); Court Procedures Rules 2006 (ACT) rr 5137(1) and 5139; Supreme Court Rules (NT) r 84.17(1)(a). In other proceedings, such lists may be ordered in the relevant court’s discretion. On the filing of lists of authority in the Federal Court of Australia, see Federal Court of Australia Practice Note GPN-AUTH, [3.1]–[3.2]. 19 See Federal Court of Australia Practice Note GPN-AUTH (Cth); Supreme Court of New South Wales Practice Note SC Gen 20 (NSW); Supreme Court of Northern Territory Practice Direction No 2 of 2007 (NT); Supreme Court of Queensland Practice Direction 16 of 2013 (Qld); Supreme Court Practice Directions 2006 (SA) at s 5.6; Supreme Court of Tasmania Practice Direction No 4 of 2014 (Tas); Supreme Court of Victoria Practice Note SC Gen 3 (Vic); Supreme Court of Western Australia Consolidated Practice Direction (WA), PD 2.1, [11]–[16]. 20 Cases reported in authorised reports tend to be those which clarify or establish important points of law. Cases which are not reported, or which are reported in unauthorised reports, tend to be those which simply apply settled law to the facts of the case at hand and may be of little, or less, utility to the court.

22.22 In the Federal Court of Australia, plaintiffs are required to file and serve a list of authorities, prepared in accordance with the practice note, five business days before the hearing, while defendants are to file their lists four business days before the hearing.21

21 Federal Court of Australia Practice Note GPN-AUTH, [3.1], [3.2].

The conduct of the trial Court directs the conduct of the trial

22.23 The court has power to control all aspects of the trial.22 The fact that the judge now reads the parties’ materials in advance of trial can have a profound effect on the conduct of the trial. The court may indicate the issues on which it wishes to be addressed and those on which it does not and it may limit the time for such addresses, as well as the number of witnesses to be called, or the time spent examining any particular witness. The judge may indicate that he or she does not require explanation of the documents submitted or of expert reports. Where documents or authority are to be discussed, the court may insist that only the key parts of any document or authority should be read aloud in court.

Page 9 of 41 Chapter 22 Trial and Evidence 22 Federal Court Rules 2011 (Cth) rr 5.04 and 30.23; Court Procedures Rules 2006 (ACT) rr 1325 and 1401; Uniform Civil Procedure Rules 2005 (NSW) r 29.5 (see also Civil Procedure Act 2005(NSW) ss 61 and 62); Supreme Court Rules (NT) r 34.01; see also rr 48.18 and 48.22(3); Uniform Civil Procedure Rules 1999 (Qld) r 367; Supreme Court Rules 2006 (SA) rr 117 and 209; Supreme Court Rules 2000 (Tas) rr 415 and 550; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 34.01 and 49.01(1) (see also Civil Procedure Act 2010 (Vic) ss 47 and 48); Rules of the Supreme Court 1971 (WA) O 4A r 2(2)and O 34 rr 5(1) and 5A.

22.24 A judge exercises control throughout the hearing. He or she may interrupt the advocates by asking questions or cutting short unnecessarily long arguments or improper addresses. But judges must guard against unreasonable and intemperate interruptions,and against giving the impression that they have already made up their mind or that they will not fairly consider the argument or evidence presented by a party.23 In Jones v National Coal Board, Denning LJ opined:24 The Judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.

Page 855

23 Jones v National Coal Board [1957] 2 QB 55 at [118]

; [1957] 2 All ER 155 (CA)

; Sweeney v Wallace [2002] WASCA 248

per Templeman J; Lockwood & Lockwood v Police [2010] SASC 120 at [15]–[16]

Michel v R [2010] 1 WLR 879

; [2009] UKPC 41 at [31],[34]

Management Pty Ltd v Nguyen [2016] NSWCA 88 at [16]–[19]

per Vanstone J;

per Lord Brown; Royal Guardian Mortgage

per Bastan JA.

24 [1957] 2 QB 55 at 64.

Order of presentation

22.25 The order in which the parties address the court and present their cases at the trial is governed by civil procedure rules in each jurisdiction, though as already noted, courts now have very considerable discretion to depart from these rules and determine how the parties should proceed.25

25 Federal Court Rules 2011 (Cth) r 5.04; Court Procedures Rules 2006 (ACT) rr 1401 and 1508; Uniform Civil Procedure Rules 2005 (NSW) rr 29.5 and 29.6 (see also Civil Procedure Act 2005 (NSW) ss 61 and 62); Supreme Court Rules(NT) r 49.01; Uniform Civil Procedure Rules 1999 (Qld) r 367 ; Supreme Court Rules 2000 (Tas) r 569(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 34.01 and 49.01(1) (see also Civil Procedure Act 2010 (Vic) ss 47 and 48); Rules of the Supreme Court 1971 (WA) O 4A r 2(2) and O 34 r 5(1).

22.26

Page 10 of 41 Chapter 22 Trial and Evidence Unless otherwise ordered, the first party to proceed is the party on whom the burden of proof lies.26 This will normally be the plaintiff. However, where the defendant has admitted all the issues in respect of which the burden lies on the plaintiff, the defendant will begin since the plaintiff will have been left with nothing to prove. Similarly,the judge may call on the defendant to address the plaintiff’s points first if the issue is purely one of law or of interpretation. Where there is more than one plaintiff, they will typically present their cases in the order in which they appear on the record.27

26 Court Procedures Rules 2006 (ACT) r 1508; Uniform Civil Procedure Rules 2005 (NSW) rr 29.1 and 29.6(2); Supreme Court Rules (NT) r 49.01(2); Supreme Court Rules 2000 (Tas) r 569(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.01(2); Rules of the Supreme Court 1971 (WA) O 34 r 5(2). 27 Jeffree v Jeffree (1910) 54 Sol Jo 655; Hole v Robison Bros & Co Pty Ltd [1956] VicLawRp 2; [1956] VLR 13

.

22.27 The party who has a right to begin would traditionally make an opening address, in which it would set out the background of the dispute, the issues arising for the court’s determination and the evidence on which the party would be relying in support of its case. Its main function was to acquaint the court with the nature of the case that it had to try. As the judge is now likely to be familiar with the case before trial, the court will tend to dispense with, or considerably curtail, the opening address.

22.28 After the opening address, the plaintiff (or the defendant, if it has the right to begin) will call its evidence.28 A party’s evidence may consist of witness testimony, documents or physical evidence.29 Other parties are entitled to crossexamine the witnesses. A witness who has been cross-examined may be re-examined by the advocate of the party who called him or her on the matters that arose in cross-examination.

28 The term ‘evidence’ refers to any information or object which tends to prove or disprove the existence of a fact in issue. 29 Physical evidence is also known as ‘real evidence’. It may take the form, for example, of fingerprints, DNA, experiments or models.

22.29 At the conclusion of the plaintiff’s case, the defendant may make a submission of no case to answer, the nature of which is explained below.30 If no such submission is made, or if it has been rejected, the defendant will be called upon to present its case.

Page 856 The defendant will call its evidence in the same way as the plaintiff. Where there is more than one defendant,they will typically present their cases in the order in which they appear on the record.31

30 See 22.62.

Page 11 of 41 Chapter 22 Trial and Evidence 31 Jeffree v Jeffree (1910) 54 Sol Jo 655; Hole v Robison Bros & Co Pty Ltd [1956] VicLawRp 2; [1956] VLR 13

.

22.30 If the defendant has called evidence, the defence closing address will be made before that of the plaintiff.32 In closing addresses the advocates will draw the court’s attention to different aspects of the evidence, address the inferences to be drawn from the evidence and develop their legal arguments. The court may direct that closing submissions should be made, or expanded on, in writing.33

32 Court Procedures Rules 2006 (ACT) r 1508(7); Uniform Civil Procedure Rules 2005 (NSW) r 29.6(4); Supreme Court Rules (NT) r 49.01(5); Supreme Court Rules 2000 (Tas) r 569(5); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.01(5); Rules of the Supreme Court 1971 (WA) O 34 r 5(4). 33 See, for example, Rules of the Supreme Court 1971 (WA) O 34 r 5(5).

Burden and standard of proof Burden of proof

22.31 In the Australian adversarial system, judicial responsibility for ascertaining the facts is limited to reaching a decision on the basis of the evidence presented by the parties.34 The court cannot find facts beyond what the evidence called by the parties has proved. The law must therefore provide answers to three essential questions: first, which party will lose if the court fails to be persuaded of the existence of a fact in issue (the burden of persuasion); secondly, which party has to come forward and adduce evidence in support of a fact in issue (the burden of adducing evidence); and thirdly, what level of proof is required in order to persuade the court of the existence of a fact in issue (the standard of proof).35

34 See discussion in Chapter 11, 11.19 ff. 35 For detailed discussion see J D Heydon, Cross on Evidence, 11th ed, LexisNexis Butterworths, Sydney, 2017, Ch 4.

Burden of persuasion

22.32 The burden of persuasion, also known as the probative or the legal burden, requires the party who carries it to prove its case to the appropriate standard of proof. It must persuade the court, normally on the balance of probabilities, of the truth of the facts that it is required to establish in order to make out its case.36 If the party fails to discharge this burden, its case will remain unproven and the court must decide against it. The party who carries the burden of persuasion carries, therefore, the risk of error, or non-persuasion. That party would lose if it fails to discharge its burden, even if as a matter of fact it is in the right. For instance, a plaintiff suing for the repayment of a loan bears the burden of proving that it lent money to the defendant. If it is unable to produce evidence that is sufficient to persuade the court that money

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Page 12 of 41 Chapter 22 Trial and Evidence changed hands, and was to be repaid, its claim would be dismissed even if in fact the defendant had taken the plaintiff’s money. It, in short, runs the risk of judicial error on the issue of the loan.

36 Currie v Dempsey [1967] 2 NSWR 532

; Nominal Defendant v Haslbauer (1967) 117 CLR 448

.

22.33 The burden of persuasion is carried with respect to particular issues. Failure to prove a particular fact in issue will not necessarily lead to losing the case as a whole. For instance, a defendant to a breach of contract claim who wishes to plead frustration of contract bears the burden of persuasion on this issue. However, a defendant who pleads frustration but fails to persuade the court that a frustrating event took place may still succeed in the proceedings, if the plaintiff fails to prove breach of contract. We should, therefore, speak of the burden of persuasion or the legal burden in relation to particular issues of fact, although the plaintiff usually carries the burden on all the issues in the case.

Burden of adducing evidence

22.34 The burden of adducing evidence, also known as the evidential burden, is different from the burden of persuasion and involves a different technique for allocating the risk of error. A party bearing the burden of adducing evidence is not, by virtue of that burden, required to satisfy the court of the existence of a fact in issue. The burden merely requires the party bearing it to adduce some evidence capable of raising as an issue the existence or non-existence of a fact; that is, of putting the fact in issue. The burden is discharged when the party produces evidence that is capable of showing that a factual allegation may be true, as distinguished from persuading the court that it is true. For example, an accused charged with murder may claim they acted in self-defence. In such a case, although the Crown bears the legal onus of proving the elements of a murder charge, the accused bears the evidential burden on the question of self-defence. While the accused need not prove that they in fact so acted, they must lead sufficient evidence to raise self-defence as a genuine possibility, which possibility the prosecution will then be required to negate to prove the charge. If the party bearing the evidential burden on an issue fails to adduce evidence, the court would not entertain the issue which that party wishes to raise.

22.35 Normally, the burden of adducing evidence coincides with the burden of persuasion. For instance, in an action for the repayment of a debt, the plaintiff will bear both burdens in respect of the allegation that money was lent to the defendant.If the plaintiff fails to adduce evidence which, if believed, could prove its case on this point, it will have failed to discharge the burden of adducing evidence (and therefore, inevitably, the burden of persuasion). The defendant would then be entitled to argue that there is no case to answer and that the claim should be dismissed without it being called to present evidence to rebut the plaintiff’s allegations.37 However, in certain situations, a party may bear only a burden of adducing evidence. For instance, a plaintiff who brings an action for injury following an accident bears the burden of persuading the court that the injury was caused by the accident. Say the plaintiff proves that he has suffered an accident and that soon afterwards he developed a

Page 858 certain condition. If the defendant admits as much but wishes to claim that the injury had been latent and merely coincided with, but was not caused by, the accident, she has to adduce some evidence supporting such allegation. If the defendant does not adduce evidence suggesting (as distinguished from proving) the presence of a latent illness, the court will exclude the possibility of latent injury from consideration. But if the defendant does produce

Page 13 of 41 Chapter 22 Trial and Evidence such evidence, it is up to the plaintiff to disprove the latent injury allegation because the plaintiff bears the burden of persuasion, or legal burden, on the issue of causation.38

37 For further discussion of submission of ‘no case to answer’, see 22.62–22.65 below. 38 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

.

22.36 Just as the burden of persuasion carries with it a risk of error, so does the burden of adducing evidence. To revert to the last illustration, the fact that the defendant cannot come up with some evidence of latent injury does not necessarily mean that there was no latent injury. It is quite possible that it was present nonetheless and, moreover, that if the plaintiff had been required to disprove it, he would not have been able to do so.

Burdens do not shift

22.37 Neither the legal nor the evidential burden shift in the course of the trial. The party bearing each burden must discharge it or face the consequences. What does change in the course of the trial, however, is the need to respond to the opponent’s case. Where the burdens are split between the parties on a particular issue, with, for example, the defendant carrying the burden of adducing evidence and the plaintiff the burden of persuasion, the plaintiff need do nothing unless and until the defendant has discharged its burden by adducing sufficient evidence on the issue. Only once this has happened, does the plaintiff ’s obligation to discharge its legal burden arise. But this is not because the defendant’s burden has somehow passed to the plaintiff. It is simply because the need to discharge the burden of persuasion on the issue in question only arises once the defendant has discharged its evidential burden.

The incidence of burdens — a matter of substantive law

22.38 The allocation of the risk of error is not a mere matter of procedure. It is fundamentally a moral and political decision for the legislature, though parties are free to stipulate in a contract a different distribution of the burdens (with the enforceability of such a provision dependent on the law of contract). It is not possible nor desirable to account here for the incidence of the burden of proof in each and every type of claim. For that purpose the relevant substantive law must be consulted. But some general observations may be made.

22.39 The general rule is that the party seeking a court judgment or order must, unless they are admitted, prove the facts that give rise to the party’s right to obtain the remedy sought. Normally such a party would also bear the burden of adducing evidence on the disputed facts. But it is not always just that the plaintiff should bear these burdens. We have seen in our personal injury example above that the defendant

Page 859 must adduce evidence of a latent injury before the issue will be considered. If it were not so, the plaintiff would have to adduce evidence that she did not suffer from a latent injury. This would be unduly burdensome, since it is difficult to find evidence for the negative. If the plaintiff never had reason to suspect a latent injury, he might have had no

Page 14 of 41 Chapter 22 Trial and Evidence reason to investigate it and would, therefore, have no evidence of lack of injury at the relevant point in time. If a plaintiff had to disprove all conceivable factors that could defeat his entitlement to an award of damages, notwithstanding the defendant had led no evidence of the existence of such factors, much of the court’s time (and the plaintiff ’s money) would be expended in vain. The placing of the burden of adducing evidence on the defendant in respect of such issues is justified by considerations of justice and by the need to ensure a proportionate use of resources. The imposition of the burden of adducing evidence on a party who does not bear a legal burden on a particular issue prevents that party from troubling its opponent and the court with spurious allegations.

22.40 Sometimes, justice requires that the burden of persuasion should itself be distributed between the plaintiff and the defendant on different issues. A plaintiff suing on contract must prove the existence of the contract, the fact of its breach and the damage suffered as a result of that breach. However, frustration releases the defendant from the contractual obligation. The plaintiff has no duty to disprove frustration. The defendant bears the burden of adducing evidence, and of persuasion,on this issue. On the other hand, self-induced frustration does not release the defendant. On this issue the burden of persuasion rests on the plaintiff, who must prove the allegation that the frustration was self-induced, if it wishes to deny the defendant the benefit of a frustrating event.39

39 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154 ; FC Shepherd & Co Ltd v Jerrom [1987] QB 301

; [1986] 3 All ER 589 at 597

; [1941] 2 All ER 165

.

22.41 It should be noted that the allocation of the burden of proof in the manner just described is governed by considerations of justice concerning the distribution of the risk of error between the opposing parties. Precisely because both parties are entitled to equal protection from the risk of error it makes sense to hold that while one party runs a higher risk on one issue, the opponent must bear the risk on another issue. There are, however, no general rules about allocating the burden of proof between the parties.40 The incidence of the burdens depends on the nature of the particular rights and duties in question, and is determined by legislation or common law. It will turn on many factors, such as whether one of the parties deserves special consideration because of some economic or social or personal disadvantage, or because of a general policy to discourage a certain activity. Sometimes the onus of proof may be imposed on the defendant because of the inherent dangerousness of an activity.41 Sometimes the

Page 860 allocation of the burden of proof is dictated by statute.42 For instance, the Taxation Administration Act 1953 (Cth) contains a number of provisions that reverse the burden of proof. The legal burden of establishing a statutory defence to a charge of making false or misleading statements or incorrectly keeping records, for example, rests on the defendant.43

40 The supposed rule that one party must establish the elements of liability while the other party must establish the elements negativing liability or those proving a defence is untenable. See J Stone, ‘Burden of Proof and the Judicial Process’(1944) 60 Law Quarterly Review 260; A Zuckerman, ‘The Third Exception to the Woolmington Rule’ (1976) 92 Law Quarterly Review 402. 41 West v Bristol Tramways [1908] 2 KB 14

.

42 See Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws (Final Report), Report 129, December 2015, [9.64] ff. 43 Taxation Administration Act 1953 (Cth) ss 8K and 8L;Criminal Code (Cth) s 13.4.

Page 15 of 41 Chapter 22 Trial and Evidence

22.42 Occasionally, the court needs to step in to decide the burden of proof as a matter of policy. The general rule has always been that in an action to restrain a defendant from using confidential information, the burden is on the plaintiff to identify the confidential information and to prove the information was communicated to the defendant on a confidential basis.44 Thus, a client who wishes to sue its solicitor for breach of confidence bears the burden of persuasion that it communicated information to the solicitor on a confidential basis. But what if the client wishes to avoid the possibility of breach of confidence by restraining the solicitor from representing a new client with whom the client has a conflict of interest? It has been held that if after the end of the retainer the solicitor wishes to represent a new client, who has a conflict with the old client, the evidential burden will be on the solicitor to show that there is no risk of misusing the former client’s confidential information, and that there is no reasonable prospect of any conflict between the solicitor’s duty to his or her former client and his or her interest in acting for a new client.45

44 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443; [1987] FCA 266 at [14] 45 Re a Firm of Solicitors [1997] Ch 1 [1999] 2 AC 222

at 236–7

at 11

; [1995] 3 All ER 482 at 490

.

; Prince Jefri Bolkiah v KPMG (a firm)

; Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 at [24]

.

Standard of proof

22.43 In order to discharge the burden of persuasion a party needs to persuade the court of the truth of its allegation, but there are many degrees of persuasion. Belief in the truth of a proposition can be held with various degrees of conviction.Therefore, the law needs to specify the standard to which proof is required. There are two basic standards in Australian law: proof on the balance of probabilities and proof beyond reasonable doubt. The first standard requires that the proponent show that it is more likely than not that its version of the facts is right, while the latter requires the proponent to ensure that the court is left with no reasonable doubt as to the correctness of the alleged fact.

22.44 In civil cases, proof on the balance of probabilities is all that is required in order to discharge the burden of persuasion.46 This standard is dictated by considerations of justice. Given that all are equal before the law, there is normally no justification for discriminating between opposing litigants and imposing on one a substantially higher risk of error than on the other. It would be unjust to require, for instance, plaintiffs in personal injury proceedings to prove their claims beyond reasonable doubt, because

Page 861 it would mean that personal injury claims would have to be dismissed as long as the court had any lingering doubt, thus imposing on personal injury plaintiffs a much higher risk of error than on their opponents. Any deviation from an even distribution of the risk of error will amount to treating litigants unequally and must therefore be justified.

46 See Uniform Evidence Acts s 140(1).

Page 16 of 41 Chapter 22 Trial and Evidence

22.45 Requiring one party, usually the plaintiff, to prove its case on the balance of probabilities is dictated by the need for a tiebreak for situations where at the end of the trial the court concludes that the plaintiff ’s and the defendant’s allegations are equally probable. Since the matter cannot be left hanging in the air, the law must adopt a method for deciding the matter. Bearing in mind that justice requires that litigants should be treated on an equal footing, the tiebreak must impose no greater burden on one of them than is absolutely necessary for the purpose of reaching a decision in the event of doubt. Thus, if at the end of the trial the court concludes that the opposing allegations are equally probable, the court will not have been persuaded on the balance of probabilities and it must therefore find against the party carrying the persuasive or legal burden. But once the balance has tipped in favour of one party on a particular issue, the court must decide in favour of that party on that issue.

Allegations of serious misconduct

22.46 It has sometimes been suggested that the civil standard should be, or is, higher when allegations of criminal or other serious misconduct are made. In the English edition of this text, the learned author opines:47 This view is contrary to principle and is liable to cause injustice. As already noted, the standard of proof on the balance of probabilities represents a just distribution of the risk of error between opposing parties who are entitled to be treated as equals in procedure. If grave allegations required proof to a higher standard, it would mean that the parties making such allegations would carry a higher risk of error. This would be unjust, for there is no reason why the victim of fraud,of a brutal assault, or of a sexual attack, should have a heavier burden of proof to discharge in a civil context. To demand a higher standard of proof from such victims is to reward the criminal behaviour of those who injure them.

47 A Zuckerman, Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [22.57].

22.47 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the High Court of Australia put to rest the suggestion that some higher standard of proof, sometimes mistakenly referred to as the Briginshaw ‘standard’,operated with respect to serious allegations:48 The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been to the effect that clear proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as

Page 862   directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such

Page 17 of 41 Chapter 22 Trial and Evidence conduct. As Dixon J commented in Briginshaw v Briginshaw … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading [citations omitted].

To similar effect, Lord Hoffman opined in Secretary of State for the Home Department v Rehman :49 The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 , 586 , some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensive manner. But the question is always whether the tribunal thinks it more probably than not.

48 [1992] HCA 66 at [2] per Mason CJ, Brennan, Deane and Gaudron JJ. 49 [2001] UKHL 47; [2003] 1 AC 153

(UK) at [55]

.

22.48 It follows that the civil standard of proof (on the balance of probabilities) applies in all civil cases, irrespective of the nature of the allegations made. However, to the extent that a grave allegation is improbable, more convincing proof is necessary to support it.50 It will, for example, take more than an ‘eye witness’ report to persuade a court that a car was forced off the road by a UFO.

50 See generally Uniform Evidence Acts s 140(2); Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2] v Sharma [2014] NSWCA 37 at [205]

per Dixon J;

; Bibby Financial Services Australia Pty Ltd

per Gleeson JA.

Improbability generally

22.49 To establish a case on the balance of probabilities the proponent must do more than simply show that its case is more probable than its opponent’s, particularly if its case is highly improbable, albeit less improbable than its opponent’s.It must also persuade the court that its case is credible. The point is illustrated by the House of Lords’ decision in Rhesa Shipping Co SA v Edmunds.51 The plaintiffs were the owners

Page 863

Page 18 of 41 Chapter 22 Trial and Evidence of a ship that ruptured and sank. They sued their insurers for the loss and had to prove on the balance of probabilities that the ship was lost through an insured risk, that is, the ‘perils of the seas’. The cause of the sudden rupture was unknown, but the shipowners alleged that it must have been caused by some accident at sea, such as a collision with a submerged object. The insurers argued that the rupture was due to the ship’s unseaworthiness, which was not an insured risk. The trial judge considered both explanations to be improbable, but concluded that the insurers’ unseaworthiness hypothesis was even less probable than the shipowners’ submerged object hypothesis,and therefore decided in favour of the shipowners. The House of Lords held that the judge was wrong to conclude that the shipowners established their case on the balance of probabilities. Lord Brandon said:52 If … a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense.

51 Rhesa Shipping Co SA v Edmunds (‘The Popi M’) [1985] 2 All ER 712; [1985] 1 WLR 948 Kuligowski v Metrobus [2004] HCA 34 at [60]

(HL)

. See also

per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and

Heydon JJ; Rowe v Ausnet Electricity Services Pty Ltd (Ruling No 5) [2015]VSC 8 at [15]

per Dixon J.

52 Rhesa Shipping Co SA v Edmunds (‘The Popi M’) [1985] 2 All ER 712 at 718; [1985] 1 WLR 948

at 956

(HL).

22.50 Accordingly, to satisfy the test of proof on the balance of probabilities the proponent must establish first, that its allegation is more probable than its opponent’s and, secondly, that it is sufficiently probable to be credible, and not merely that it is a little more probable than a competing highly improbable hypothesis or allegation.53

53 Even in the absence of a competing hypothesis, there is no rule of law which requires a court to accept uncontradicted evidence, particularly where that evidence is fanciful, illogical or otherwise inherently improbable or incredible: Holman v Homan (1964) 5 FLR 406 at 411

per Sugarman J; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at

586–8 ; Nominal Defendant v Saleh [2011] NSWCA 16 at [140]–[142] agreeing).

per McColl JA (Beazley JA and Giles JA

Presumptions Nature of presumptions

22.51 Presumptions represent techniques for distributing the risk of error by means of conditional allocation of the burden of persuasion or of the burden of adducing evidence. A presumption is a rule of law, which provides that upon proof of one fact (the ‘basic fact’) by the proponent, the court is duty bound to find the existence of another fact (the ‘presumed fact’), unless the opponent proves the contrary or, as is sometimes the case, unless the opponent merely adduces evidence to the contrary.

22.52

Page 19 of 41 Chapter 22 Trial and Evidence The presumption of parentage is illustrative of the technique. The father of a child born to a married woman is presumed to be the woman’s husband. The task of establishing parentage is thus assisted by the presumption of parentage, which states that if a person proves that she was born while her mother was married, she is presumed to be the child of her mother and her mother’s husband, unless the opponent proves the contrary.54 Birth during wedlock constitutes the basic fact of the presumption. The person alleging parentage bears the burden of persuasion on this

Page 864 issue. If she does not discharge the burden, the presumption will not bite. But if she does, the court will be duty bound to conclude parentage unless the opponent proves, on the balance of probabilities, that the child was not the daughter of her mother’s husband. There are therefore two avenues open to a person denying that a child is the child of his or her mother’s husband at the time of birth: they could deny that birth occurred during wedlock, on which point the proponent bears the burden of persuasion, or they could try and establish that the proponent was not,contrary to the presumption of parentage, the natural child of his or her purported father, on which point the opponent bears the burden of persuasion.

54 Family Law Act 1975 (Cth) s 69P.

22.53 Instead of distributing the burden of persuasion, a presumption may merely allocate the burden of adducing evidence. This is the case with the presumption omnia praesumuntur rite esse acta, also known as the presumption of regularity. Suppose that the plaintiff has to establish that a public official or authority exercised some power in the course of its duties. The plaintiff carries the burden of persuasion on this issue. But it is assisted by the presumption of regularity, which holds that if it shows that the official or authority in question purported to act in the requisite capacity (the basic fact), the court will find that their powers were regularly exercised, unless the defendant produces some evidence from which lack of authority could be inferred.55 Once the defendant has done that, the court will decide in favour of the plaintiff if, and only if, it proves a valid exercise of powers on the balance of probabilities.

55 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 Ashfield Municipal Council v Armstrong [2002] NSWCA 269 at [40] agreeing).

per McHugh JA;

per Davies AJA (Mason P and Handley JA

22.54 Rules of presumption specify the consequences flowing from proof of their basic facts. However, it must be borne in mind that the court does not deliver its findings piecemeal. It does not stop to consider whether the plaintiff has proved a basic fact before the defendant is required to rebut the presumed fact which arises upon proof of the basic fact. The court will decide the case only at the end of the trial, after the parties have presented all the evidence they wish to present. This has important practical consequences for the presentation of the case. For instance, a plaintiff who has to establish the validity of an official act would be unwise simply to rely on the presumption of due appointment and hope that the defendant would be unable to advance evidence of lack of authority. It should also try to give evidence of valid appointment. It follows that while presumptions are of great help, a litigant would be well advised not to rest its entire case upon one, if it can possibly avoid it.

Page 20 of 41 Chapter 22 Trial and Evidence

22.55 In the discussion so far, the term ‘presumption’ has been used to describe a rule of law which provides that, upon the proof of a basic fact (or sometimes merely adducing evidence of a fact) the court must, not just may, come to a certain conclusion, unless the contrary is established (or evidence is adduced for the contrary proposition). The effect of individual presumptions is easily described by outlining the basic and the presumed facts, by stating the type of burden in relation to each of them and by indicating which parties bear the burden.

Page 865

22.56 Unfortunately, the term ‘presumption’ is also used in a variety of other senses. It has been said that presumptions are divided into three groups: presumptions of fact, rebuttable presumptions of law, and irrebuttable presumptions of law. The term presumption of fact is used for situations where as a matter of common sense the court may draw a certain factual inference from the existence of a certain set of facts. Presumption of fact thus refers to circumstances that commonly occur in conjunction. In this sense one may cite the presumption of continuance, whereby the court may infer the existence of a state of affairs from its existence at an earlier point in time. For instance, the court may infer that a person was alive at a certain time from the fact that he was alive a couple of days earlier. It was held in one case that there was a presumption that traffic lights continued to be in proper working order.56 However, such assumptions amount to no more than common sense generalisations concerning the normal course of events. They involve no rule of law whatsoever.

56 Tingle Jacobs & Co v Kennedy [1964] 1 All ER 888n; [1964] 1 WLR 638n

.

22.57 The term irrebuttable presumption is sometimes used to describe rules that provide that upon the proof of certain facts the court is duty bound to come to a certain conclusion, irrespective of the true state of affairs. For example, it is an irrebuttable common law presumption that all persons know the law. However, such usage is spurious. The ‘presumption’ that persons know the law does not purport to indicate who should prove what, or how the risk of error should be distributed between the parties. It is merely an awkward way of expressing a substantive rule of law that ignorance of the law is no defence. Accordingly, irrebuttable presumptions of law serve no useful purpose and have no place in the law of procedure and evidence.

22.58 The third category of presumptions, the rebuttable presumption of law, which consists of a rule that lays down that, upon the proof of a basic fact, the court must (not just may) come to a certain conclusion, is the only useful category of legal presumptions.

Presumptions governed by substantive law

22.59

Page 21 of 41 Chapter 22 Trial and Evidence Like the rules determining the incidence of the burden of persuasion or of adducing evidence, presumptions are rules of substantive law. The substantive law uses presumptions to promote certain policies. For example, the presumption of parentage upholds family relationships where a formal status of marriage exists. Sometimes, presumptions are designed to avoid uncertainty. For instance, s 184 of the Property Law Act 1958 (Vic) states that where two or more persons have died in circumstances rendering it uncertain which survived the other, it shall be assumed that they died in order of seniority. The presumption of death, discussed below,fulfils a similar function in that it enables the court to assume death after a seven-year absence. The precise effect of a particular presumption can be sensibly discussed only in the legal context in which it arises and in the light of the rules and policies of the relevant substantive law.

Page 866

Presumptions independent of probative weight

22.60 It is important to distinguish between the probative force of the basic facts of a presumption and the legal effect that attaches to it. A presumption rule only indicates who should prove what and who should lose if the court fails to be persuaded of the truth of a proposition. Such a rule directs the court to come to a certain conclusion following proof of the basic fact regardless of its probative weight. Of course, the basic facts may possess some probative force, but this will not be on account of the presumption but on account of their actual probative significance in the circumstances of the case. To illustrate this point we may refer again to the presumption of parentage. The fact of birth during wedlock may well have a strong probative force, but such force would depend on the circumstances of the husband and wife in question and not on the presumption. The couple may, for instance, have been on bad terms and living apart, in which case the fact of birth in wedlock would have very little probative significance.

22.61 A further illustration is provided by the presumption of death. A presumption of death arises on proof of:57 (a) the fact that a particular person was not heard of for seven years; and (b) that persons who were likely to hear from him, if he were alive, have not had an indication of his existence. Upon proof of these basic facts, death will be presumed unless the opponent, who carries an evidential burden, adduces evidence from which the contrary might reasonably be inferred. The inference of death in the absence of evidence to the contrary is dictated by the presumptive effect of the rule, not by the probative force of the basic facts. If the basic facts were logically sufficient to lead to the conclusion of death, the party seeking to establish death would not need to wait for the end of the seven-year period. It could instead advance the basic facts as proof, rather than rely on the legal presumption.58

57 Axon v Axon (1937) 59 CLR 395 at 401,405; [1937] HCA 80 parte Jenkins [2008] WASC 49 at [18],[21]

; Re Application for Grant of Presumption of Death; Ex

per Beech J.

58 See, for example, Re Paul Allen Weeks; Ex parte Weeks [2016] WASC 25 at [10]–[12] , in which a woman was given leave to swear to her husband’s death approximately two years after he went missing, having boarded Malaysia Airlines flight MH370 which disappeared en route to Beijing in 2014 and having never been heard from since.The authorities found no trace of her husband or any other passenger on board that aircraft but did subsequently recover at sea parts of an aircraft wreckage thought to belong to MH370.

No case to answer

Page 22 of 41 Chapter 22 Trial and Evidence

22.62 At the end of the plaintiff’s case the defendant may submit that the plaintiff has not established a sufficient case to demand an answer and that therefore the judge should decide against the plaintiff there and then.59 The procedure has superficial attraction for, it might be said, if the court accepts the submission and the claim is dismissed, time and cost will have been saved, whereas if the submission

Page 867 is rejected, the trial will continue in the normal way and little will have been lost by considering the defendant’s submission of no case to answer. However, this process is fraught with risk because if the court does accept the submission and dismisses the claim, without calling upon the defendant, and on appeal it is found that there was a case to answer, then the case will have to be remitted for a new trial by a different judge and the whole process will have to start all over again with the possibility of a further appeal.60 Furthermore, even a rejection of a submission of no case to answer is not necessarily without disadvantage. This is because the judge will have to suspend any favourable impression he or she has formed of the plaintiff ’s evidence,as a result of ruling on the submission, and keep an open mind with regard to the defendant’s case.

59 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 29.9(4). 60 As happened, for example, in Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355

.

22.63 In order to avoid these difficulties, a practice developed at common law whereby a defendant seeking to make such a submission would be asked to elect whether it wished to call evidence. Only if the defendant elected not to call evidence, would the court give judgment on the basis of the plaintiff’s case.61

61 New South Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437 at [40] Barrett JA agreeing).

per Ward JA (Beazley P and

22.64 In Oakley v Insurance Manufacturers of Australia Pty Ltd ,62 Kaye J explained that it is, however, permissible for the court to decide a plea of ‘no case to answer’ without putting the defendant to its election. He stated: The ordinary rule is that a judge will not rule on a submission of no case to answer, unless the moving party announces that it will not call any evidence, in the event that the submission does not succeed. However, that rule is not inflexible and it admits of exceptions. Ultimately, the question, as to whether or not the moving party should be put to its election, is a question for the exercise of the judge’s discretion. The answer to that question depends on the just and convenient disposition of the litigation in the interests of justice. Where the respondent party to the submission has made an allegation of fraud, that circumstance may weigh in favour of an exercise of the discretion by the trial judge not to put the moving party to its election. Where a no case submission is made, a trial judge may require the moving party to put its argument, before the judge rules on whether that party should be put to its election. Such a course of action enables a judge to better determine whether it is in the interests of justice that the moving party be put to its election.63

Page 23 of 41 Chapter 22 Trial and Evidence

62 [2008] VSC 68 at [14]

.

63 See also Australian Securities and Investments Commission v Healey [2011] FCA 717 at [538]–[539] J (citations omitted).

per Middleton

22.65 It should be recalled that defendants have other methods of avoiding the need to call evidence at trial in order to defend themselves against a hopeless claim. A defendant can apply to strike out a claim that discloses no cause of action against it or apply for summary judgment where the claim has no real prospects of success.64 If trial preparations have been adequate, there should be few cases where the hopelessness of the plaintiff ’s case only becomes apparent after it has presented its case at trial.

Page 868

64 See Chapter 9, 9.70 ff.

Admissibility

22.66 Contested facts may only be proved by admissible evidence. The test of admissibility is partly a question of fact and partly a question of law. Only relevant evidence is admissible. Relevance is a matter of fact not law. However, admissibility also depends on legal criteria, in that the evidence must not fall foul of any exclusionary rule and in that it must make sufficient contribution to justify its reception in legal proceedings. The requirement of sufficiency of probative contribution is now governed by the overriding objective and by s 135 of the Uniform Evidence Acts, which empower courts to exclude evidence that is otherwise admissible.

Relevance

22.67 Relevance is a precondition of admissibility.65 Stephen’s definition of relevance can hardly be improved: relevance exists when ‘any two facts … 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’.66 The test of relevance is concerned with the potential, not actual, contribution of the particular evidence to the issues. To be relevant the evidence must be such that, if believed, it could affect the court’s conclusion regarding a fact in issue. It must also have some prospect of being believed, otherwise there is no point in admitting it. The test of relevance applies not only at the trial, but whenever the court is asked to make a decision about evidence. Questions of relevance may arise, for instance, at the discovery stage, because irrelevant material does not need to be disclosed.67

65 Uniform Evidence Acts s 56(2). 66 J Stephen, A Digest of the Law of Evidence, 12th ed, 1946, art 1. See also Uniform Evidence Acts s 55(1). 67 For the test of standard disclosure, see Chapter 15, 15.14 ff.

Page 24 of 41 Chapter 22 Trial and Evidence

Improperly obtained evidence

22.68 Although in the past there were numerous exclusionary rules which operated to exclude otherwise admissible evidence,68 few of them have survived in civil proceedings. The principal exclusionary rules have already been discussed in earlier chapters of this text regarding legal professional privilege, without prejudice privilege, the privilege against self-incrimination and public interest immunity.69 These rules exclude evidence not because of lack of probative value but for extra-probative policy reasons.

68 See Roscoe’s Evidence in Civil Actions, 20th ed, Sweet & Maxwell, London 1934. 69 Chapters 16, 17, 18 and 19 respectively.

22.69 Unless caught by an exclusionary rule, the traditional position was that the court had no discretionary power to exclude evidence merely because it disapproved of the means by which it was obtained. Lord Goddard CJ expressed this position when he said:70

Page 869   In their Lordships’ opinion, the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.

70 Kuruma v R [1955] AC 197 ; [1955] 1 All ER 236 at 203,239 respectively.See also Helliwell v Piggott-Sims [1980] FSR 582 (CA), in which Lord Denning MR expressed the view that in civil cases a judge had no discretion to refuse to admit relevant and admissible evidence on the ground that it may have been unlawfully obtained.

22.70 This no longer accurately reflects the position. Courts now have discretion to exclude evidence obtained by unlawful or improper means.71 Section 138 of the Evidence Act 1995 (Cth), which applies in both civil and criminal proceedings, relevantly provides:72 (1)

Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting

Page 25 of 41 Chapter 22 Trial and Evidence evidence that has been obtained in the way in which the evidence was obtained. (2)

…

(3)

Without limiting the matters that the court may take into account under subsection (1), it is to take into account – (a) the probative value of the evidence; (b) the importance of the evidence in the proceeding; (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; (d) the gravity of the impropriety or contravention; (e) whether the impropriety or contravention was deliberate or reckless; (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

71 Uniform Evidence Acts s 138; Australian Law Reform Commission, Uniform Evidence Law, Report 102, December 2005, [16.77] ff. See also Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 at [32],[35] JJ.

per Stephen and Aicken

72 This provision is replicated across the Uniform Evidence Acts in the Australian Capital Territory, New South Wales, the Northern Territory and Victoria. No greater weight is ascribed to any of the matters identified in s 138(3) over any other matter. Each is to be weighed in the balance in favour of or against the exercise of discretion: Australian Securities and Investments Commission v Macdonald (No 5) [2008] NSWSC 1169 at [27]

per Gzell J.

22.71 The term ‘improper’ is not defined by the Act. In Robinson v Woolworths Ltd ,73 Basten JA stated:

Page 870   It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards … Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’: Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject … The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant preexisting standard has been breached,it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually

Page 26 of 41 Chapter 22 Trial and Evidence undertaken in Ridgeway.74

73 [2005] NSWCCA 426 at [23],[37]

.

74 In Taylor v Burgess [2002] NSWSC 676, Barrett J held at [34] that evidence obtained through a breach of contract which attracts sanction in the form of damages or equitable relief may amount to evidence obtained improperly.

22.72 The onus of establishing that the evidence sought to be excluded falls within the terms of s 138 rests on the party seeking exclusion.75 Once the court is so satisfied, it is for the party who wants to rely on the evidence to persuade the court that the desirability of its admission outweighs the desirability of its exclusion in light of the manner in which it was obtained.76

75 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 339 at [46] VSCA 176 at [116]

; Willis v R [2016]

.

76 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [33] [106] per Hall J; Parker v Comptroller-General of Customs [2009] HCA 7 at [28]

per Basten JA (Barr J agreeing), per French CJ.

Proportionality — the requirement of sufficient probative utility

22.73 The fact that an item of evidence is relevant, in the sense that it could render a fact in issue more or less probable, has never been enough to justify admission in evidence at trial. The courts have always insisted that evidence must be sufficiently relevant. Sufficiency of relevance depends on the circumstances of each case. ‘The degree of relevance needed to qualify for admissibility is not’, Lord Hoffmann explained, ‘a fixed standard, like a point on some mathematical scale of persuasiveness. It is a variable standard, the probative value of the evidence being balanced against the disadvantages of receiving it such as taking up a lot of time or causing confusion’.77 Before the overriding objective was introduced, parties had a large measure of freedom in deciding what evidence to call and whether any particular piece of evidence made

Page 871 a sufficient contribution to the process of adjudication to justify its tender. The court now plays a greater part in this process.

77 L H Hoffmann, ‘Similar Facts After Boardman’ (1975) 91 Law Quarterly Review 193 at 205.

22.74

Page 27 of 41 Chapter 22 Trial and Evidence The overriding objective requires the court to safeguard proportionality in each and every stage of litigation, including the admission of evidence. Courts may control the evidence to be led at trial by giving directions as to the issues on which it requires evidence, the nature of the evidence it requires to decide those issues and the way in which evidence is to be placed before the court. Amongst other things, the court may limit the time available to each party to present its case,limit the number of witnesses each party may call on particular issues, or generally, and limit the time for opening addresses, cross-examination or closing addresses.78

78 Federal Court Rules 2011 (Cth) rr 5.04 and 30.23; Court Procedures Rules 2006 (ACT) rr 1325 and 1401; Uniform Civil Procedure Rules 2005 (NSW) r 29.5; Supreme Court Rules (NT) r 34.01; see also rr 48.18 and 48.22(3); Uniform Civil Procedure Rules 1999 (Qld) r 367; Supreme Court Rules 2006 (SA) rr 117 and 209; Supreme Court Rules 2000 (Tas) rr 415 and 550; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 34.01 and 49.01(1); Rules of the Supreme Court 1971 (WA) O 34 r 5A.

22.75 The court must decide admissibility with the overriding objective in mind. That is to say, it must ensure that the contribution of the proposed evidence to the determination of the issues is proportionate. Proportionality in this context means that the evidence makes a sufficient probative contribution to justify the time and expense involved in its presentation. Lord Woolf MR explained:79 The court will … strive to manage the case so as to minimise the burden on litigants of slender means. This includes excluding all peripheral material which is not essential to the just determination of the real issues between the parties, and whose examination would be disproportionate to its importance to those issues.

79 McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 791 [2003] EWCA Civ 151 at [25]; [2003] 1 WLR 954

at [25]

(CA). See also Jones v University of Warwick

.

22.76 Proportionality in admissibility can depend on a wide variety of factors. The court is required to look at the case as a whole and not just at individual items of evidence in isolation. For instance, evidence that in isolation may be of considerable probative force might be considered useless if judged in the context of the rest of the evidence. If there are already five eyewitnesses to an event, one hardly needs to call a further five to attest to the same fact. The principle of diminishing marginal utility applies to evidence as to anything else. A point will be reached beyond which any additional evidence will start to obstruct the fact-finding process rather than assist it, by sowing confusion or distracting attention from more important matters.Given that the proportionality test depends on the circumstances of the entire case, it is important to maintain some flexibility. The court should therefore be prepared to reconsider its decision on admissibility when the circumstances have changed,so that evidence that appeared insufficiently probative at an early stage should be allowed in later, if developments in the case suggest that it is of significance after all.

22.77

Page 28 of 41 Chapter 22 Trial and Evidence Courts have ample powers to respond to the needs of the case as they emerge. These powers, it must be stressed, are not confined to the trial stage, but may be used at

Page 872 any appropriate stage in the proceedings. At the pre-trial stage, the court will ordinarily be in a position to look at the totality of the evidence that the parties propose to call and decide which issues require evidence and which are not really in controversy. If it transpires from the witness statements or from expert reports that the witnesses are not divided on certain points, then the court may dispense with testimony on those points. Where witnesses are to be called, the court may direct that their statements should stand in place of evidence-in-chief,and it may impose both subject limits and time limits on cross-examination, so as to ensure that the process is used in an effective way.

Judicial notice — dispensing with proof of common knowledge

22.78 The process of drawing inferences from evidence is conducted in accordance with the rules of logic and common sense, not according to rules of evidence. This involves the use of generalisations concerning the normal course of events in nature and society. Whether a judge assesses circumstantial evidence or the credibility of witnesses, the judge cannot help but use his or her own knowledge and experience of the world. If the issue is whether the sheep attacked the dog or the other way around,the judge will sensibly fall back on his or her own understanding of the normal course of events. The doctrine of judicial notice relieves the parties of the need to prove matters of general knowledge, by enabling the court to use its own familiarity with the world. The doctrine is reflected in s 144 of the Uniform Evidence Acts.

22.79 Section 144 of the Evidence Act 1995 (Cth) provides that: (1)

Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2)

The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3)

The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4)

The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

22.80 The test of reasonable indisputability is the key to identifying when a judge may properly dispense with the formalities of proof. Facts will be indisputable either because they are generally considered as true in the community or because they may be reliably ascertained from sources that are widely accepted as correct. For example, judicial notice has been taken of the fact that two weeks is too short a period for human gestation, that the University of Oxford exists for the advancement of learning, and that a postcard is likely to be read by people other than the addressee. In Victorian Women Lawyers’ Association Inc v Commissioner of Taxation ,80 the court took judicial

Page 873

Page 29 of 41 Chapter 22 Trial and Evidence notice of ‘the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession’.

80 [2008] FCA 983 at [116]

per French J.

22.81 Verification by reference to indisputable sources may be made, for example, where the court has to ascertain on which day of the week 1 January 2000 fell, or where historical facts are relevant (such as the date on which World War II commenced),or when geographical facts need to be established (such as the location of certain places). For the purpose of informing itself of such matters, the court may have access not only to reliable documentary sources but also to experts.

22.82 It is not open to a judge to use s 144 to inform him or herself of matters in respect of which reasonable minds might differ.81 It is open to a party to argue that information that the court proposes to take as indisputable is in fact controversial, in which case the question must be resolved by evidence, not by judicial notice.

81 McGregor v McGregor [2012] FamCAFC 69 at [74]

(per curiam).

22.83 A distinction needs to be drawn between taking judicial notice and allowing a particular matter to be decided by others. In a case where the independence of the state of Kelantan was in issue, the House of Lords held that the proper way of proceeding was to take judicial notice of the sovereignty of a state, and for that purpose to seek information from a Secretary of State, which will not be disputable by the parties.82 In reality, however, the court was not taking judicial notice of an indisputable fact but leaving the question of independence to the government.

82 Duff Development Co v Government of Kelantan [1924] AC 797

(HL).

22.84 Where the court proposes to use information that, although indisputable, might take the parties by surprise, it is highly desirable that the court should warn the parties of its intention. This much is required by s 144(4). It is similarly desirable that the court should articulate as much as possible the considerations that led it to prefer one party’s version of the facts over another’s. An articulation of the use of judicial notice or of the use of easily verifiable information forms part of the general duty to give reasoned decisions. There are, however, limits to the extent to which it is possible to account for every factual assumption and generalisation that a judge takes into account in the process of reasoning. It must be accepted that the inferential process is inevitably carried out against the background of a large number of unstated common sense assumptions, which it is not always possible or even

Page 30 of 41 Chapter 22 Trial and Evidence helpful to elaborate.

Witnesses

22.85 As a matter of general principle all persons are competent to testify and are compellable to do so if their testimony is required in civil proceedings.83

83 Uniform Evidence Acts s 12.

Universal competence

22.86 Although there were many categories of witness incompetence until well into the nineteenth century,84 none of them has survived. Witness competence is therefore

Page 874 universal. This means that the courts are prepared to receive information concerning disputed facts from any person capable of providing it in a comprehensible way.This position is reflected in s 12 of the Evidence Act 1995 (Cth), and its equivalents in other jurisdictions, which provides: Except as otherwise provided by this Act: (a)

every person is competent to give evidence; and

(b)

a person who is competent to give evidence about a fact is compellable to give that evidence.

84 See Wigmore on Evidence, 3rd ed, 1940, Vol 2, s 515.

22.87 A person is not competent to give evidence about a fact if they do not have the capacity to understand a question about that fact, or to give an answer about the fact which can be understood, which incapacity cannot be overcome.85 The test of competence is thus concerned with the ability of a witness to function as a witness. Provided a witness can supply intelligible answers to questions in issue, they will be competent to testify, notwithstanding that they may not comprehend the obligation to give truthful evidence. Such a witness can simply give unsworn evidence (that is, evidence given without an oath or affirmation), which is treated no differently from other evidence.86

85 Uniform Evidence Acts s 13(1). 86 Uniform Evidence Acts s 13(5); cf R v Wills (1985) 29 SASR 35.

Page 31 of 41 Chapter 22 Trial and Evidence

22.88 A person is presumed to be competent unless the contrary is proved.87 Where there is concern about a witness’s maturity or mental capacity, the modern strategy is for the court to satisfy itself, on the balance of probabilities, of the witness’s competence.88 The court is free to inform itself as it sees fit.

87 Uniform Evidence Acts s 13(6); RA v R (2007) 175 A Crim R 221; [2007] NSWCCA 251 at [11] (Howie and Harrison JJ agreeing). 88 Uniform Evidence Acts s 13(8); RA v R (2007) 175 A Crim R 221; [2007] NSWCCA 251 at [11]

per McClellan CJ

per McClellan CJ.

Compellability

22.89 The principle of universal competence is mirrored by an almost universal principle of compellability in civil proceedings. Nearly all persons may be subpoenaed to testify at trial, to produce documents at trial, or both.89 Refusal to comply with a subpoena is punishable as a contempt of court.90 The nature and reason for this principle was discussed in Chapter 3 in relation to the right of litigants to access

Page 875 relevant evidence.91 Here it is only necessary to mention one or two exceptions to this principle. The sovereign and the heads of other sovereign states are not compellable as witnesses. In theory, judges are competent to testify on matters that came to their attention in the course of court proceedings, but since it is contrary to the public interest that they should be called as witnesses to such matters, they may not be compelled to testify without leave of the court.92

89 Federal Court Rules 2011 (Cth) r 24.12; Court Procedures Rules 2006 (ACT) r 6601; Uniform Civil Procedure Rules 2005 (NSW) r 33.2; Supreme Court Rules (NT) r 42.02;Uniform Civil Procedure Rules 1999 (Qld) r 414; Supreme Court Rules 2006 (SA) r 172; Supreme Court Rules 2000 (Tas) r 495; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.02; Rules of the Supreme Court 1971 (WA) O 36B r 2. For an overview of the circumstances in which subpoenas may be set aside, see Chapter 15, 15.158 ff. 90 Federal Court Rules 2011 (Cth) r 41.05; Court Procedures Rules 2006 (ACT) r 6612; Uniform Civil Procedure Rules 2005 (NSW) r 33.12; Supreme Court Rules (NT) r 42.12; Civil Proceedings Act 2011 (Qld) s 57; Supreme Court Rules 2006 (SA) r 182; Supreme Court Rules 2000 (Tas) r 500E; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.12; Rules of the Supreme Court 1971 (WA) O 36B r 12. 91 Chapter 3, 3.93 ff. 92 Uniform Evidence Acts s 16(2).

22.90 One should distinguish between a witness’s general compellability and any privilege he or she may have not to testify on certain matters. For example, the right against self-incrimination entitles a person to refuse to answer incriminating questions but does not exempt that person from the duty to attend court for the purpose of testifying.93

Page 32 of 41 Chapter 22 Trial and Evidence 93 See Chapter 18, 18.11.

Opinion

22.91 As a general proposition, a witness can only give evidence of matters known to them personally, being matters which they perceived with their own senses, and not of things which others have told them, nor of the opinions that they have formed based on the matters they have perceived. Hence, the law has traditionally held that witnesses must confine their evidence to the facts and not offer their opinion. It is for the court, it is said, to draw inferences from the facts and form opinions about the issues; witnesses must confine themselves to informing the court of what happened.94 To make any sense of this principle one has to accept that the term ‘opinion’ is not used in this context in its common ordinary sense. Most factual reports of witnesses involve opinion. When the witness reports that he saw his friend Jones cross the road, he does not report merely crude facts, such as that he saw a man with a particular gait, height, build and hair colour and of a particular age and apparent ethnicity, cross the road; he reports the conclusion he drew from what he observed, namely that he saw Jones crossing the road. The observation may have been made from a distance or from an angle that does not allow for perfect vision, and yet the witness is entitled to say that on the basis of what he could see he believes that the person crossing the road was Jones. The opinion rule is not meant to exclude evidence of this kind.95 It does not seek to exclude all inferences formed from perception. Rather, the function of the opinion rule is to encourage witnesses to give evidence in the most concrete and testable manner. It also seeks to reserve to the court the drawing of inferences that go beyond the reporting of the conclusions of immediate perceptions (of the kind just described). Thus a witness to a road accident will be allowed to testify who did what at the relevant time, but would not be allowed to attribute responsibility. For instance,

Page 876 a witness is allowed to say: ‘the plaintiff drove on the right hand side of the road’, but she is not allowed to say: ‘the plaintiff was driving carelessly’. The reason for allowing the first but not the second statement is that the first is easily testable, whereas the latter could be ambiguous and open to different interpretations.

94 Section 76 of the Uniform Evidence Acts embodies the ‘opinion rule’. It provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed. The opinion rule is subject to the exceptions in ss 77–79 of the Acts. The key exception is in respect of expert evidence, which is discussed in detail in Chapter 21. 95 Uniform Evidence Acts s 78.

22.92 The opinion rule encourages reasonable specificity in reporting facts. Specificity draws attention to the basic elements involved in the witness’s account and therefore assists the court in evaluating the witness’s testimony. Specificity also ensures that the witness stops short of expressing their views about conformity to general standards, which is for the court to decide. However, it must be stressed that the usefulness of specificity is a matter of degree. Beyond a certain point,specificity is a hindrance rather than a help. It would be of little use for the witness in the above example to report in great detail the features of the person he saw crossing the road; it is enough that he states his opinion that it was Jones crossing the road.

Hearsay

22.93

Page 33 of 41 Chapter 22 Trial and Evidence Hearsay refers to evidence of a previous representation made by a person adduced to prove the truth of the facts that the person intended to assert by the representation.96 Hearsay evidence is inadmissible unless it falls within one or more of the exceptions to the general rule prohibiting the admission of such evidence. This is because hearsay evidence is typically not the best evidence available to establish the purported facts the subject of the hearsay, the original out-of-court statement having not been given under oath, before a judge who is able to assess the demeanour of the statement’s maker when the statement is made, and potentially without the benefit of the statement being tested by the cross-examination of its maker.97

96 Subramaniam v Public Prosecutor [1956] 1 WLR 965 97 Pollitt v R (1992) 174 CLR 558; [1992] HCA 35 at [13]

. per Mason CJ.

22.94 The prohibition on hearsay is reflected in s 59 of the Uniform Evidence Acts. Section 59 of the Evidence Act 1995 (Cth) relevantly provides: (1)

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably be supposed that the person intended to (b) assert by the representation.

(2)

Such a fact is in this Part referred to as an asserted fact.

22.95 There are a number of exceptions to the hearsay rule, including perhaps most importantly, where the maker of the previous representation is unavailable to give evidence at trial, in which case someone who themselves saw, heard or otherwise perceived the representation being made can give evidence of the representation.98 It is beyond the scope of this text to identify and analyse the breadth of, and each exception to, the hearsay rule. It is sufficient to observe that exceptions to the hearsay rule include, amongst others, hearsay evidence admitted for a non-hearsay purpose;99 first-hand hearsay where the maker of the representation is unavailable

Page 877 or, alternatively, where it would cause undue expense or delay, or would not be reasonably practicable, to call the maker to give evidence;100 hearsay that comprises a previous contemporaneous representation made by a person about their health, feelings, sensations, intention, knowledge or state of mind;101 hearsay sourced from business records;102 and hearsay evidence led in interlocutory proceedings, provided the source of the hearsay information is disclosed.103

98 Uniform Evidence Acts s 63. 99 Uniform Evidence Acts s 60. 100 Uniform Evidence Acts ss 63 and 64. 101 Uniform Evidence Acts s 66A. 102 Uniform Evidence Acts s 69. 103 Uniform Evidence Acts s 75. See also Chapter 8, 8.14.

Page 34 of 41 Chapter 22 Trial and Evidence

22.96 Parties who intend to lead certain forms of hearsay evidence are required to provide each other party with reasonable notice in writing of that intention.104 This allows the other parties to assess whether the hearsay in question in fact falls within the purported exception or exceptions permitting its reception into evidence and to make any objections to that evidence they think fit.

104 Uniform Evidence Acts s 67.

Examination of witnesses Evidence-in-chief

22.97 Witness testimony is primarily provided by means of evidence-in-chief. A witness who is called has to enter the witness box and take the oath or make a solemn affirmation.105 The evidence-in-chief consists of responses to questions put to the witness by the party calling him or her. The witness must not be asked leading questions in the course of evidence-in-chief.106 A question is leading if it, directly or indirectly, suggests its desired answer or assumes the existence of a disputed fact about which the witness has not given evidence. This is because a witness’s evidence must be the witness’s own, expressed in their own words, and not that of the advocate putting the questions to them. This allows the court to best assess the evidence and the strength of the witness’s recollection.107 Take, for example, a witness to a car accident. An advocate would be leading the witness if he or she were to ask, ‘was the vehicle you saw collide with the plaintiff’s car a white Toyota RAV-4?’ because that question suggests its own answer, that the vehicle the witness saw collide with the plaintiff was indeed a white Toyota RAV-4. The witness need answer no more than ‘yes’ or ‘no’. Instead, the witness should be asked, ‘can you describe the vehicle which collided with the plaintiff ’s car?’, in answer to which the witness can then provide their unassisted recollection and description of the vehicle involved in the collision.

105 Uniform Evidence Acts s 21. 106 Uniform Evidence Acts s 37. ‘Leading question’ is a defined in the Uniform Evidence Acts. 107 See SJX v State of Western Australia [2010] WASCA 243 at [82]–[84] per Buss JA (McLure P and Mazza J agreeing) on the meaning of a ‘leading question’ and the rationale for their prohibition.

29.98 Where, as is increasingly common, a witness statement has been ordered to stand in place of evidence-in-chief, the witness will still be called and will still take the oath, but his or her testimony-in-chief will be confined to verifying his or her

Page 878 statement and making any necessary amendments to it.108 It is common practice for advocates to ask a few ‘supplementary’ questions-in-chief in order to try to put the witness at ease before he or she is subjected to crossexamination.

Page 35 of 41 Chapter 22 Trial and Evidence

108 See discussion in Chapter 20, 20.69.

22.99 As far as the practice of using witness statements as evidence-in-chief is concerned, courts seek to strike a compromise between inflexibility, on the one hand, and a complete freedom to deviate from the witness statement on the other. Such freedom would defeat the very purpose of providing a statement in the first place, allowing parties to circumvent the need to notify their opponents of the evidence they propose to adduce a trial. Consistent with their ability to control their own processes,courts are empowered to permit witnesses to give evidence which goes beyond the four walls of their statements. In deciding whether to permit a witness to give such evidence at trial, the court will have regard to the overriding objective. A court is more likely to allow a witness to expand on or clarify matters already canvassed in his or her witness statement, or to give evidence in relation to new matters which have arisen only since the witness statement was served on the other parties, than it is to allow a witness to give evidence on some wholly new matter which has not been touched on in their statement and which ought to have been included in their statement at first instance.109 If, for instance, a witness statement describes what the witness saw at the scene of an accident, it would normally be inappropriate to allow the witness to testify in court for the first time that after the accident he or she went to see the plaintiff in hospital where they observed certain facts.

109 See discussion in Chapter 20, 20.69.

22.100 Whether permission is sought for amplification or for testifying to matters occurring after the statement was served, the court must be satisfied that there are good reasons for granting permission. This will depend on a number of factors.The extent to which the oral evidence strays from the witness statement would be of relevance. It would be easier to obtain permission in respect of amplification that merely provides detail of matters that were implied in the statement and that would not therefore take the opponent by surprise, than for testimony that could not be anticipated by the opponent and that could not therefore be checked in advance. The likely contribution that the evidence could make to the determination of the issues will also be of considerable significance, as will fairness to the other party and the effect that the evidence may have on the conduct of the trial as a whole. If amplification is likely to require an adjournment in order to enable the opponent to respond to the evidence, then careful consideration would need to be given to why the party failed to include the matter in the witness statement in the first instance. In the absence of some compelling reason, a court may well decide that a party should not be allowed to disrupt the orderly progress of the trial when it could reasonably have given timely notice of the matters on which it belatedly seeks to lead evidence.

Cross-examination

22.101 Cross-examination follows the conclusion of evidence-in-chief. Its object is to enable other parties to challenge the witness, probe his or her account of

Page 879 events and illuminate any weaknesses or inconsistencies in the account.The cross-examiner may ask leading questions and is not generally confined to matters of which the witness spoke in their evidence-in-chief.110 Any party, other than the party calling the witness, is entitled to cross-examine the witness.111 The witness statement will often provide the platform for the cross-examination. Where the party calling a witness has merely served an outline of evidence, the ability to cross-examine the witness on their outline of evidence will depend on whether the witness

Page 36 of 41 Chapter 22 Trial and Evidence had any role in the preparation of that outline. If the outline is nothing more than the party’s description of what that party hopes the witness will say, the witness cannot be meaningfully examined on the content of the outline because it is not an outline of his or her own evidence.

110 Uniform Evidence Acts s 42. 111 Note, however, s 38 of the Uniform Evidence Acts, which permits the party calling a witness to question the witness as though they were conducting cross-examination where the witness is an ‘unfavourable witness’ within the meaning of that section.

22.102 Where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, or to otherwise invite the court to disbelieve the evidence given by an opponent’s witness, as a matter of fairness,that party is required to raise the matter with the opponent’s witness so that they have a fair opportunity to deal with it and, if necessary, explain, contextualise or counter the evidence said to contradict their own. This requirement is known as the rule in Browne v Dunn. It is a rule of fairness.112

112 Australian Law Reform Commission, Uniform Evidence Law, Report 102, December 2005, [5.143] ff. See also Uniform Evidence Acts s 46.

Re-examination

22.103 Following cross-examination, the party calling the witness will ordinarily be afforded an opportunity to re-examine the witness in order to clarify matters arising from cross-examination. Unless the court gives leave, questions put to the witness in re-examination must be limited to matters arising out of the evidence given by the witness in crossexamination.113

113 Uniform Evidence Acts s 39.

22.104 Re-examination is permissible in every case where the answers or account given in cross-examination would, if left unexplained, or incomplete, not constitute the whole truth.114 The purpose of re-examination is not merely to remove ambiguities and uncertainties. It is also allowed whenever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to put it.115

Page 880

Page 37 of 41 Chapter 22 Trial and Evidence 114 S Odgers, Uniform Evidence Law, 11th ed, LawBook Co, Sydney, 2014, [1.2.3460]. 115 Hadid v Australis Media Ltd (NSWSC, Sperling J, 5 November 1996, unreported); Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 at [5]

per Hamilton J.

Failure to attend trial Overview

22.105 As a matter of general principle, a party who fails to attend a hearing of which it has had adequate notice may be regarded as having waived its right to participate in the hearing. Where a plaintiff fails to attend the trial of its claim or an applicant fails to attend at the return of its application, it is normal for the court to dismiss the claim or application.116 Where the absent party is the defendant or respondent, however, it is common for the court to instead proceed with the hearing and require the plaintiff or applicant to prove its case117 — although the process will be much quicker in the absence of opposition. In either case, the court may instead elect to adjourn the hearing to allow the absent party a further opportunity to attend. In deciding on the appropriate course,the court will have regard to whether the absent party was provided with due notice of the hearing, any explanation for its absence, the urgency of the matter, whether any irreparable damage would flow to the party against whom an order is made and whether such an order can be later set aside.118

116 Armour v Bate [1891] 2 QB 233

. The court need not inquire into the merits of the absent plaintiff’s claim: Pham v

University of Queensland [2002] FCAFC 40 at [26]

per Drummond J (Marshall and Finkelstein JJ agreeing).

117 Stone v Smith (1887) 35 Ch D 188 ; Singh v Singh (No 3) [2010]WASC 64 at [21] per Mazza J. The power of courts to proceed in the absence of a party is reflected in the rules in each jurisdiction: Federal Court Rules 2011 (Cth) r 30.21; Court Procedures Rules 2006 (ACT) r 1505; Uniform Civil Procedure Rules 2005 (NSW) r 29.7; Supreme Court Rules (NT) r 49.02; Uniform Civil Procedure Rules 1999 (Qld) r 476; Supreme Court Rules 2006 (SA) r 364(1)(c); Supreme Court Rules 2000 (Tas) r 570; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 49.02; Rules of the Supreme Court 1971 (WA) O 34 rr 1 and 2. 118 Smirski v Macandar [2010] NSWSC 929 at [31]–[34] Ltd [2010] NTSC 23 Black J.

per Hallen AsJ, quoting Ndjamba v Toyota Finance Australia

per Blokland J at [8]. See also Re Oliver Brown Pty Ltd [2013] NSWSC 738 at [10]–[12]

per

22.106 The right to a fair trial implies that a party has the right to have any decision made in its absence set aside if it can show that it did not receive notice of the proceedings, or there is otherwise some adequate explanation for its nonattendance.119

119 Cameron v Cole (1944) 68 CLR 571 at 589; [1944] HCA 5 per Rich J; Taylor v Taylor (1979) 143 CLR 1 at 8 per Gibbs J (Stephen J agreeing) and 20 per Mason J; S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 at [20]

per Emmett, Allsop and Middleton JJ. See also Chapter 23, 23.45.

Page 38 of 41 Chapter 22 Trial and Evidence

22.107 On the question of due notice, Hallen AsJ opined as follows in New South Wales Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory :120 The clear purpose of UCPR rule 29.7 [allowing the court to proceed in the absence of a party] is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of the defendant to be informed,or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 said (at 589):

, in which Rich J

Page 881  

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside … In such a case there has been no valid trial at all. In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. A party is ‘absent’ within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial.

120 [2012] NSWSC 681 at [18]–[20]

.

22.108 In most jurisdictions, the civil procedure rules expressly empower the court to set aside judgments given or orders made in the absence of a party upon the application of that party.121 It is usual for the court, in the face of an application to set aside judgment entered in a party’s absence, to have regard to the explanation given for the party’s absence, whether there has been any delay by the absent party in applying to set aside the judgment, whether the evidence discloses a reasonably arguable case or bona fide issue to be tried, such that some purpose will be served by setting aside the judgment and allowing the matter to be tried on the merits and,finally, whether the other party would be prejudiced by a new trial in a manner that cannot be overcome by an award of costs and the giving of security.122

Page 39 of 41 Chapter 22 Trial and Evidence 121 Federal Court Rules 2011 (Cth) rr 30.21(2) and 39.05(a); Court Procedures Rules 2006 (ACT) r 1505(5); Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b); Supreme Court Rules (NT) r 49.02(2); Uniform Civil Procedure Rules 1999 (Qld) r 476(4); Supreme Court Rules 2000 (Tas) r 570(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.02(2); Rules of Supreme Court 1971 (WA) O 34 r 3. In certain jurisdictions, the absent party must make the application to set aside the judgment within 7 or 14 days of it having been given. This provides certainty of outcome to the party with the benefit of the judgment,subject to any extensions of time which might be granted. 122 See Grimshaw v Dunbar [1953] 1 QB 408

at 415–6

; [1953] 1 All ER 350

Intellec Development Group Pty Ltd(No 2) [2011] FCA 407 at [6] Xiao [2012] VSCA 316 at [39] Services [2018] FCA 110 at [24]

per Jenkins LJ; 3D Funtimes Ltd v

per Siopis J; Perpetual Trustees Victoria Ltd v

per Weinberg, Harper and Priest JJA; Harrison v Secretary, Department of Social per Flick J.

Failure to attend the trial

22.109 The non-attendance of a party at trial does not automatically bring the trial to a standstill. On the contrary, the court may (and often will) proceed with the trial in the absence of a party. If no party attends the trial, however, the court may dismiss the proceedings or strike out the claim on which it is founded.123 The courses of action available to the court when only one of the parties is absent are set out below.

Page 882

123 See, for example, Federal Court Rules 2011 (Cth) r 30.22; Rules of the Supreme Court 1971 (WA) O 34 r 1.

Adjournment

22.110 Instead of proceeding with the hearing or striking out the case of the absent party, the court is always free to adjourn the hearing.124 However, given the importance attached to keeping trial dates, an adjournment will be ordered only where there are compelling grounds. If the court is informed that the absent party did not receive notice of the hearing, an adjournment should be ordered as a matter of right rather than discretion, since holding a trial in such circumstances would breach the absent party’s right to fair trial. Similarly, a court should order an adjournment where it transpires that a party or its representatives have been prevented from attending by circumstances outside their control. Indeed, it would be wasteful of court resources to do otherwise, since the absent party would be entitled to have any judgment or order given in its absence set aside.125

124 Federal Court Rules 2011 (Cth) rr 30.21(1)(a)(ii), (b)(ii) and 30.22(a); Court Procedures Rules 2006 (ACT) r 1506; Uniform Civil Procedure Rules 2005 (NSW) r 29.7(2); Supreme Court Rules (NT) r 49.03; Uniform Civil Procedure Rules 1999 (Qld) r 477; Supreme Court Rules 2006 (SA) r 117(1); Supreme Court Rules 2000 (Tas) r 571; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.03;Rules of Supreme Court 1971 (WA) O 34 r 4. 125 Australian Law Reform Commission, Uniform Evidence Law, Report 102, December 2005, [5.143] ff. See also 22.107 above.

Non-attendance by the defendant

Page 40 of 41 Chapter 22 Trial and Evidence

22.111 If the defendant does not attend the trial, the court can strike out its defence, together with any counterclaim it has made, leaving the plaintiff free to enter default judgment against the defendant. However, it would often be unjust to limit a plaintiff to obtaining no more than the striking out of the absent defendant’s defence and counterclaim, because striking out does not entail any adjudication on the merits, thus leaving the defendant free to raise similar arguments and claims at some future date. Justice requires that a plaintiff who has invested expense and effort in bringing a claim all the way to trial should be able to obtain a final adjudication on the merits, even if the defendant has failed to attend the trial. Indeed,this approach is contemplated by the rules in most jurisdictions which permit the plaintiff to establish its entitlement to the relief it claims in the defendant’s absence.126 In addition, the plaintiff can seek the striking out of any counterclaim that the defendant advanced.127 There is, however, one important rider that must always be borne in mind: the court can proceed in the defendant’s absence only if it is satisfied that the defendant received notice of the proceedings and has no reason to believe that the defendant or its representatives were prevented from attending by circumstances beyond their control.

Page 883

126 Federal Court Rules 2011 (Cth) r 30.21(1)(b)(i); Court Procedures Rules 2006 (ACT) r 1505(1); Uniform Civil Procedure Rules 2005 (NSW) r 29.7(2)(a) ; Supreme Court Rules (NT) r 49.02(1)(b); Uniform Civil Procedure Rules 1999 (Qld) r 476(1); Supreme Court Rules 2000 (Tas) r 570(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.02(1)(b); Rules of Supreme Court 1971 (WA) O 34 r 2. 127 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 525 Gedala Pty Ltd v Gusodte Pty Ltd [2010] QSC 482

per Clarke JA (Samuels JA agreeing);

.

22.112 Where the court has allowed the plaintiff to proceed and prove its claim in the defendant’s absence, the trial will proceed on the basis of the materials that have been filed, for example, witness statements, expert reports, outlines of opening arguments and the (other) documents in the court book. As the absent defendant too will have submitted its evidence and arguments, the court may well be in a position to decide the matter with some confidence. However, the fact that the defendant does not attend does not mean that the plaintiff is now free to advance points, or seek additional or different relief, of which it has given no prior notice and which it should have raised earlier, because it is possible that if the plaintiff had raised a particular point, the defendant would have attended the trial in order to resist it.128 As Romer J explained in Jamaica Railway v Colonial Bank :129 The Court has always borne in mind that an absent defendant served with the original writ may have acted upon the supposition that he thereby gathers substantially what the case made against him is, and relies upon it that that case and no other substantially different case will be made against him, and on that footing does not choose to appear. According the Court has refused to act upon a rule, which in terms covered a defendant who had not appeared, in cases in which the Court came to the conclusion that it would not be just to enforce the rule against such a defendant — not that the Court had no jurisdiction to proceed, but that it did not think it right to proceed in such a case.

128 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 288–9; [1990] HCA 11 at [2]

per

Brennan J; Electrolux Home Products Pty Ltd v Delap Impex KFT [2015] FCA 62 at [25] per Farrell J. This is unless the defendant can be taken to be cognisant of the prospect of the additional or different relief sought being given by reason of the nature of the case and relief sought in the originating process: Electrolux at [25].

Page 41 of 41 Chapter 22 Trial and Evidence 129 (1905) 1 Ch 677

at 690

.

Non-attendance by the plaintiff

22.113 If the plaintiff does not attend the trial, the court may dismiss the plaintiff’s claim and allow the defendant to call evidence to establish its entitlement to judgment against the plaintiff on any counterclaim.130 The dismissal of the plaintiff’s claim upon its non-attendance has the same effect as a judgment of dismissal following a hearing on the merits and, so long as it stands, operates as a bar to new proceedings on the same cause of action.131

130 Federal Court Rules 2011 (Cth) r 30.21(1)(a)(i); Court Procedures Rules 2006 (ACT) r 1505(2); Uniform Civil Procedure Rules 2005 (NSW) r 29.7(2)(a) and 29.7(4); Supreme Court Rules (NT) r 49.02(1)(b) and 49.02(1)(d)(i); Uniform Civil Procedure Rules 1999 (Qld) r 476(2); Supreme Court Rules 2000 (Tas) r 570(1)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 49.02(1)(b); Rules of Supreme Court 1971 (WA)O 34 r 2. See also Armour v Bate [1891] 2 QB 233

.

131 Re Orrell Colliery and Fire-Brick Co (1879) 12 Ch D 681

at 682

; Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [55]

End of Document

; Armour v Bate [1891] 2 QB 233 per Muir JA.

at 235

Chapter 23 Judgments and Orders Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 23 — Judgments and Orders

Chapter 23 Judgments and Orders Page 885 [Current to May 2018]

Introduction

23.1 A judgment or order is a formal decision of the court which determines or disposes of some question in dispute in proceedings. Judgments and orders are operative judicial acts which have the force of law.1 They may declare rights, impose obligations or provide for other legal consequences. They can be distinguished from incidental decisions of the court, such as a decision on the time and place of a hearing, the admissibility of a particular piece of evidence or the exclusion of witnesses from the courtroom.2

1

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at [4]

per Barwick CJ and Kitto J; Legal

Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 Nationwide News Pty Ltd [2005]NSWCA 17 at [29] [2009] NSWCA 357 at [14] 2

per King CJ; Johnston v

per Spigelman CJ; Salter v Director of Public Prosecutions

per Spigelman CJ.

Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127

per King CJ.

23.2 Most, but not all, judgments and orders require an act of compliance by a party to the proceedings, such as the payment of a sum of money by the defendant to the plaintiff or the delivery-up of particular goods. It is possible to compel compliance with judgments and orders by the use of one or more of the court’s enforcement mechanisms. These are discussed in detail in Chapter 24. This chapter is not concerned with enforcement, however. It deals instead with the nature, scope and effect of judgments and orders.

The difference between judgments and orders

23.3

Page 2 of 27 Chapter 23 Judgments and Orders There is a difference between judgments and orders. A judgment consists of a final decision that conclusively disposes of an action or part of an action, while an order is any other judicial determination.3

3

Onslow v IRC (1890) 25 QBD 465 Ltd [2006] WASC 26 at [26]

; Exhibit Exhibition & Publishing Pty Ltd v Consolidated Business Media Pty

per Newnes M.

Judgments

23.4 In his book Declaratory Judgments, Professor Borchard described judgments thus:4

Page 886   A judgment of a court is an affirmation, by the authorized societal agent of the state … of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called ‘judicial power,’ is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights.

4

E Borchard, Declaratory Judgments, 1st ed, Banks-Baldwin Law Publishing Co, Cleveland, 1934, pp 6–7 (citations omitted).

23.5 By their very nature, judgments are conclusive as to their subject matter.5 Once a judgment has been entered, it must be acknowledged by the whole world as such. This does not mean that strangers are bound by the court’s findings, however. It merely means that, while it stands, the judgment as such is indisputable.In most situations, this will be of little significance to anyone other than the parties, but if the judgment is a judgment in rem it will have the effect of establishing certain legal facts, such as the status of persons or objects, which will bind the world at large. For example, a divorce decree dissolves a marriage for all intents and purposes and renders the parties free to marry others.

5

23.6

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 608–9

per Brennan J.

Page 3 of 27 Chapter 23 Judgments and Orders A judgment need not necessarily resolve all issues in dispute between the parties to the proceedings. Where the proceedings have been split, for example, a judgment may be given on the question of a defendant’s liability, leaving the amount of damages, if any, to be determined at a later stage in the proceedings.

Orders

23.7 An ‘order’ is any binding court decision that does not finally dispose of some or all of the issues in dispute in the proceedings. Orders may consist of case management directions, such as an order directing the parties to exchange expert reports by a certain date, or express the court’s decision on applications for interim relief, such as the grant of an interlocutory injunction. Orders may also follow the final disposition of the action, such as an order for costs.

Nomenclature

23.8 It must be stressed that the distinction between judgments and orders outlined above is only broadly correct. The terms ‘judgment’ and ‘order’ do not have fixed and precise meanings. They are used in different senses in different contexts.6 For example, the operative part of a judgment is described as an ‘order’. The term order

Page 887 can also be used both to refer to the decision of the court as a whole, which may be made up of a series of orders, and to each of its operative parts. As King CJ remarked in Legal Practitioners Complaints Committee v A Practitioner :7 There is no completely satisfying definition of either ‘judgment’ or ‘order’ and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders.

6

In Barton v Walker [1979] 2 NSWLR 740 at 747D , Samuels JA opined that ‘the word “order” … is … a word familiar enough to lawyers commonly found in the collocation “judgment or order”. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of “order” itself ’. In R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 , Bridge J remarked at 114 that ‘[t]he word “order” in relation to legal proceedings in itself is ambiguous; clearly it may mean —perhaps a linguistic purist would say that its most accurate connotation was to indicate — an order requiring an affirmative course of action to be taken in pursuance to the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of courts … Which of the two meanings is appropriate must of course always depend on the context’.

7

23.9

(1987) 46 SASR 126 at 127

.

Page 4 of 27 Chapter 23 Judgments and Orders Historically, the term ‘judgment’ was reserved for a decision obtained in an action at law, while other proceedings at law were determined by ‘order’, and proceedings in equity by ‘decree’.8 The term ‘order’ was also used to describe the determination of interlocutory applications in proceedings of any kind. To some extent, this distinction remains in the modern rules, although there is little practical significance attaching to which term is used. What matters is the character of the decision in question.

8

Re Chinergy; Ex parte Chinery (1884) 12 QBD 342 . See also A Ingpen, F Bloxam and H Garrett, Forms of Judgments and Orders in the High Court of Justice and Court of Appeal with Especial Reference to the Chancery Division, 7th ed, Stevens & Sons Limited, London, 1912, Vol 1 at cccxxxix (hereafter, Seton on Judgment and Orders);and O L Barbour, A Treatise on the Practice of the Court of Chancery, WM&A Gould & Co, Albany, 1843, Vol 1, pp 336–7. According to the authors of Seton, the term ‘decree’ lost its distinctive meaning, and came to be superseded by the more comprehensive ‘judgment’, with the introduction of the Judicature Acts (UK): Vol 1, cccxl. The term remains in use, however, in the Family Law Act 1975 (Cth) and s 73 of the Constitution, which provides that the High Court has jurisdiction to ‘hear and determine appeals from all judgments, decrees, orders and sentences’.

23.10 There is a substantial difference between, on the one hand, a court decision that is a conclusive and final resolution of a case and, on the other hand, a decision that is merely concerned with the procedure to be followed in reaching a final resolution, or a decision that is meant to govern the conduct of the parties pending a final resolution. The principle of finality of litigation — that once a judgment has determined the parties’ rights the matter is settled once and for all — cannot apply in the same way to decisions which do not deal with the parties’ substantive rights or which, if they do, are meant to be merely provisional.9 There are therefore instances where the distinction between judgments and orders does matter and it will be discussed in the appropriate contexts.10

9

See Chapter 26, 26.116–26.119.

10 See generally Chapter 25 and Chapter 26.

Cause of action merges in judgment

23.11 Once judgment has been given, the original cause of action ‘merges’ in the judgment, transit in rem judicatam, such that any further enforcement of the rights the subject of the judgment can only be by means of enforcement of the judgment itself.11 The doctrine of res judicata provides an absolute bar to a subsequent suit for the same

Page 888 cause of action. The case of Chamberlain v Deputy Commissioner of Taxation provides an example of its operation. In that case, the court observed:12 [The respondent] obtained a judgment of the court in which the cause of action upon which he relied merged, thereby destroying its independent existence so long as that judgment stood. And, so long as that judgment stands, it is not competent for the respondent to bring further proceedings in respect of the same cause of action. It is no answer to say that the court might, if appropriate, stay the second action as an abuse of process. The impediment goes deeper than that … The matter is not one for the discretion of the Court; by operation of law the cause of action relied upon by the respondent has ceased to exist.

Page 5 of 27 Chapter 23 Judgments and Orders

11 See Blair v Curran (1939) 62 CLR 464 at 532 147 CLR 589 at 611–12; [1981] HCA 45 at [18]

per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd (1981) per Brennan J; Gibbs v Kinna [1998] VSCA 52 at [21]

JA; Kong v Minister for Immigration and Citizenship [2011] FCA 1345 at [22]

per Kenny

ff per Flick J.

12 (1988) 164 CLR 502 at 510–11; [1988] HCA 21 at [21] per Deane, Toohey and Gaudron JJ.

Types of judgments and orders Form of judgments and orders and giving of reasons

23.12 Once reduced to writing, judgments and orders usually consist of two parts: one introductory and the other which contains the actual adjudication or determination of the court. Judgments are also typically accompanied by written reasons for the court’s decision, although they need not be if the court delivers its reasons orally or those reasons are otherwise implicit in the judgment itself.13

13 See generally Chapter 3, 3.83–3.92 on the right to a reasoned decision; M Kirby, ‘Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory’ (1994) 12 Australian Bar Review 121 and M Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ [2014] Victorian Judicial Scholarship 5. The giving of adequate reasons lies at the heart of the judicial process. While a judge is not obliged to spell out every detail of his or her process of reasoning, it is essential for judges to expose their reasoning in resolving points critical to the dispute. Procedural fairness requires that a litigant know why he or she was or was not successful: Tran v Claydon [2003] WASCA 318 at [36] per McLure J. The necessary extent and content of reasons will depend upon the particular case under consideration and matters in issue. As a general rule, reasons will need to identify the relevant evidence, record material findings of fact and provide reasons for making material findings of fact on the critical issues before the court: Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 443–4

per Meagher JA; Pollard v RRR Corp Pty Ltd [2009] NSWCA 110 at [56]–[64]

per McColl JA (Ipp JA and Bryson AJA agreeing). The giving of reasons serves at least three purposes: first, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision; secondly, it furthers judicial accountability; and thirdly, it informs the public as to how similar cases are likely to be determined in future: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh JA. Where there is a right of appeal from a decision, the giving of reasons also allows an appeal court to determine whether the impugned decision was based on an appealable error: Tran v Claydon, above, at [36]. The failure to give adequate reasons constitutes an error of law: Soulemezis, above, at 249, 259. For an example of a case where judgment was set aside on the basis of inadequate reasons, see Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902

per Davies J.

23.13 The first, introductory, part of a judgment or order serves a similar purpose to recitals in a contract. Its function is to show the circumstances surrounding the judgment or order’s making. This part typically identifies matters such as the date the order was made, the judicial officer who made it, the form of application or occasion on which the order was made (and whether it was made by consent), the parties in

Page 6 of 27 Chapter 23 Judgments and Orders

Page 889 attendance at any hearing about the order, any undertakings given in connection with the order and, finally, any other matters germane to the circumstances in which the order was made.14

14 See, for example, Supreme Court Rules (NT) r 60.05; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 60.05; Rules of the Supreme Court 1971 (WA) O 42 r 1(3).

23.14 The second, operative, part of the judgment or order sets out the court’s decision on the question or questions before it. Since the passage of the Judicature Acts (UK) in the late 1800s, courts have had the power to pronounce judgments and orders in whatever form was required to determine all questions before them and do justice between the parties.15 Courts are empowered to give such judgments or make such orders as the case before them requires, irrespective of whether such judgment or order has actually been sought by a party.16 Of course, a court only give such judgment as the facts of the case support.17

15 Seton on Judgment and Orders, Vol 1, at cccxil–cccxl. 16 Federal Court of Australia Act 1976 (Cth) s 22; Court Procedures Rules 2006 (ACT) r 1600; Uniform Civil Procedure Rules 2005 (NSW) r 36.01 and Civil Procedure Act 2005 (NSW) s 90(1); Supreme Court Rules (NT) r 59.01; Uniform Civil Procedure Rules 1999 (Qld) r 658; Supreme Court Civil Rules 2006 (SA) r 223; Supreme Court Rules 2000 (Tas) rr 573(1)(a) and 806; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 59.01; Rules of the Supreme Court 1971 (WA) O 34 r 8. 17 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [56] Gummow, Hayne and Callinan JJ.

per Gleeson CJ, Gaudron, McHugh,

23.15 Given the variety and complexity of matters which come before courts for determination, and which judgments and orders might therefore traverse, there are no specific rules governing the form or sequence in which a court is to express its orders.However, as the authors of Seton on Judgment and Orders observed:18 There is, however, a generally defined natural order of clauses which is usefully adopted. Thus, any declarations made by the Court as to the rights of the parties naturally precede the accounts and inquiries which are directed in order to ascertain the nature or extent of such rights, or to give effect to them, and these again are followed by consequential directions or specific adjudication inter parties … and [orders for] the taxation and payment of costs.

18 Seton on Judgment and Orders, Vol 1, at cccxliv.

Ex tempore and reserved judgments

Page 7 of 27 Chapter 23 Judgments and Orders

23.16 At the conclusion of a trial, a judge may deliver judgment immediately. Such a judgment is known as an ex tempore judgment, indicating it was delivered at the time of the hearing. Ex tempore judgments are almost always delivered orally and are most common in straightforward cases, where the answers to the issues requiring judicial determination are immediately apparent at the conclusion of the case. In most cases, however, a judge will want to (and indeed should)take time to carefully consider and reflect on a case before delivering judgment.19 To this end, the court may adjourn an otherwise concluded matter to a specified later date, or a date to be fixed, to prepare

Page 890 and deliver its judgment. Such a judgment is known as a ‘reserved’ judgment and will be delivered in writing and labelled cur. adv. vult (curia advisari vult) to indicate the court took time to consider the matter.

19 See Gow v Harker [2003] EWCA Civ 1160 at [52]–[55] per Brooke LJ; McMurdo AC, ‘From Ex-Temps to Treatises: How Leading Judges Write’, 8 October 2016, paper delivered at the Judicial Conference of Australia Colloquium, Canberra.

Judgments in personam and in rem

23.17 Judgments are determinative of the rights of the parties to the proceedings. Most judgments are in personam, meaning they operate against (and impose obligations on) a party personally, as distinct from against a ‘res’ or thing.A judgment that Party A is required to pay Party B a sum of money pursuant to a contract between them, or by way of damages, is a judgment in personam. In contrast, a judgment in rem affects or creates an interest in a res, or affects the legal status of a person, and binds the world at large. A judgment that Party A is entitled to possession of a particular piece of land is a judgment in rem. It determines a right to property, which right Party B may have been infringing, but which right is good against all persons not having a superior right to possession of the property.

No judgments on hypothetical issues

23.18 The object of the judicial process is to finally determine the rights of parties to the proceedings.20 It is no part of judicial power, and contrary to the judicial process, to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in a case.21 Accordingly, a court will not entertain proceedings where the question before it is moot, theoretical, abstract or hypothetical or requires it to give an advisory opinion.22 The efficient administration of the court’s business demands that a court’s limited resources be used only for resolving actual legal controversies.23

20 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47] Gummow, Hayne and Callinan JJ. 21 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [56]

per Gleeson CJ, Gaudron, McHugh,

.

Page 8 of 27 Chapter 23 Judgments and Orders 22 See Re Judiciary Act 1903– 1920 and Navigation Act 1912–1920(1923) 32 CLR 455; [1921]HCA 20; University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10; [1975] HCA 26 at [6]–[7] Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [45] Court of New South Wales [2002] NSWCA 355 at [27] Commissioner of Police [2004] NSWCA 356 at [28] [2017] HCA 47 at [9]

per Gibbs J; Bass v Permanent

ff; Victims Compensation Fund Corporation v District

per Heydon JA (Sheller JA and Einstein J agreeing); Miller v per McColl JA (Mason P and Hamilton J agreeing); Re Barrow

per Edelman J.

23 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [49]

.

Declaratory judgments

23.19 Courts have the power to give declaratory judgments, which consist of binding declarations concerning legal states of affairs, whether or not consequential relief is sought.24 For instance, the court may declare that property in a certain object is vested

Page 891 in a particular person, or that a document or statute bears a certain meaning.25 Since the court does not adjudicate on purely hypothetical questions, a declaratory judgment will only be given where there is a live issue to be resolved.26 A declaration will be given, in other words, only where it is likely to have a practical effect for the future conduct of the parties or of other concerned persons. The court will be reluctant to make a negative declaration, such as that the plaintiff is not liable. However, where a negative declaration will help to ensure that the aims of justice are achieved, the court may make such a declaration unless there are some special reasons why it should not do so.27

24 Federal Court of Australia Act 1976 (Cth) s 21; Court Procedures Rules 2006 (ACT) r 2900; Supreme Court Act 1970 (NSW) s 75; Supreme Court Act (NT) s 18; Uniform Civil Procedure Rules 1999 (Qld) r 485(b); Supreme Court Act 1935 (SA) s 31; Supreme Court Rules 2000 (Tas) r 103; Supreme Court Act 1986 (Vic) s 36; Rules of the Supreme Court 1971 (WA) O 18 r 16. 25 I Zamir and H Woolf, The Declaratory Judgment, 3rd ed, Sweet & Maxwell, London, 2002. 26 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47][48]

.

27 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [28]–[29] per Einstein J. The party seeking a negative declaration bears the onus of proving the negative proposition: Australian Gas Light v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317 at [355]–[356] and Investments Commission [2017] FCAFC 13 at [28]–[29]

; Gore v Australian Securities

.

Judgment not the only mode of final resolution

23.20 A judgment, whether given summarily or following a trial on the merits, is not the only means by which litigation can be brought to an end.28 For example, proceedings may be stayed or discontinued, or a plaintiff may bring proceedings to an end by taking out money paid into court under an offer of compromise.29 Discontinuances and stays do not give rise to res judicata or issue estoppel, though there may be other barriers to bringing fresh proceedings, such as the principles concerning abuse of process.

Page 9 of 27 Chapter 23 Judgments and Orders

28 Increasingly, fewer and fewer cases are resolved by way of a trial on the merits, culminating in a judgment: see generally Justice Hayne, ‘The Vanishing Trial’, paper delivered at the Supreme and Federal Courts Judges Conference,23 January 2008, Sydney. 29 See Chapter 14.

Pronouncing and entering judgment Judgments have immediate effect

23.21 A judgment or order takes effect on and from the day it is made, or such earlier or later date as the court may specify.30 Ordinarily, an order is operational immediately upon its making. The court may however ante-date or post-date the date on which its order takes effect ‘where the usual position … would produce unfairness’.31 The court’s

Page 892 power to antedate the effect of its orders is limited.32 It can only be exercised where ‘something exceptional in the facts’ so demands.33 It cannot be exercised where the order’s early operation would produce a result contrary to statute.34

30 Federal Court Rules 2011 (Cth) rr 39.01 and 1.35; Court Procedures Rules 2006 (ACT) r 1605; Uniform Civil Procedure Rules 2005 (NSW) r 36.04; Supreme Court Rules (NT) r 59.02(1); Uniform Civil Procedure Rules 1999 (Qld) r 660; Supreme Court Civil Rules 2006 (SA) r 226; Supreme Court Rules 2000 (Tas) r 807; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 59.02(1); Rules of the Supreme Court 1971 (WA) O 42 r 2; Civil Judgments Enforcement Act 2004 (WA) s 11. 31 General Insurance Office of New South Wales v Healey (No 2) (1991) 22 NSWLR 380 at 387; [1991] NSWCA 103 per Kirby P. 32 For an overview of antedating orders in Australia, see Hartley Poynton Ltd v Liyakat Ali (as executor and trustee of the estate of Rahmat Ali) [2005] VSCA 53 at [60] ff per Orminston JA (Buchanan and Eames JJA agreeing). Courts in the United Kingdom have no power to antedate a judgment or order: see Civil Procedure Rules (UK) r 40.7; Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants VOF [1999] 2 Lloyd’s Rep 443. 33 McKensey v Hewitt [2004] NSWSC 636 at [37]–[43] [2017] NSWCA 2 at [40]

per Young CJ in Eq; Zoef v Nationwide News Pty Ltd (No 2)

per Gleeson JA (Ward and Payne JJA agreeing).

34 Clyne v Deputy Commissioner of Taxation (No 3) (1984) 154 CLR 589 at 597 per Gibbs CJ, Murphy, Brennan and Dawson JJ; Hartley Poynton Ltd v Liyakat Ali (as executor and trustee of the estate of Rahmat Ali) [2005]VSCA 53 at [91]

per Orminston JA (Buchanan and Eames JJA agreeing).

23.22 Generally speaking, an appeal does not stay the operation of an order, nor its execution. Therefore, a defendant who appeals against a judgment must comply with the judgment unless the court which gave the judgment or the appeal court grants a stay of execution pending the bringing and determination of an appeal.35 A defendant who has paid money in satisfaction of a judgment that is later reversed will have a right to be reimbursed.36

Page 10 of 27 Chapter 23 Judgments and Orders

35 For discussion, see Chapter 25, 25.77–25.80. 36 For a full explanation of the defendant’s right in such a situation, see B McFarlane, ‘The Recovery of Money Paid under Judgment Later Reversed’ [2001] Restitution Law Review 1.

23.23 Where a judgment or order requires a person to perform any act, the order will ordinarily, and in some cases must, specify the time by which that act is to be performed.37 In some jurisdictions, an order directing a person to perform an act must be endorsed with a penal notice, in the form specified by the relevant rules,38 while in others, such an order need only be so endorsed if it is proposed to punish non-compliance with the order by way of committal or sequestration.39 The purpose of endorsing an order with a penal notice is to ensure that the person to whom the order is directed is aware that a failure to comply may result in the person being punished for contempt, until the contempt is purged or otherwise.The notice thus encourages compliance in the first instance and gives fair warning of the consequences which may follow if the order is ignored.40

Page 893

37 Federal Court Rules 2011 (Cth) r 39.02; Court Procedures Rules 2006 (ACT) r 1610; Uniform Civil Procedure Rules 2005 (NSW) r 36.5; Supreme Court Rules (NT) r 59.03;Uniform Civil Procedure Rules 1999 (Qld) r 665; Supreme Court Civil Rules 2006 (SA) r 225(2); Supreme Court Rules 2000 (Tas) r 810; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 59.03; Rules of the Supreme Court 1971 (WA) O 42 r 3. As to the difficulty occasioned when orders require the performance of an act ‘forthwith’, as opposed to within a fixed time, see Australian Securities Commission v MacLeod (No 2) (1993) 40 FCR 461 at 464–5; [1993] FCA 132 at [16]–[18]

per Drummond J.

38 Court Procedures Rules 2006 (ACT) r 1610(3); Uniform Civil Procedure Rules 1999 (Qld) r 1610(3); Supreme Court Civil Rules 2006 (SA) r 225(1); Supreme Court Rules 2000 (Tas) r 810(2). 39 Federal Court Rules 2011 (Cth) r 41.06; Uniform Civil Procedure Rules 2005 (NSW) r 40.7; Supreme Court Rules (NT) r 66.10; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.10(3). 40 Camm v ASI Development Company Pty Ltd [2007] QCA 317 at 10–11 agreeing); Mason v MWREDC Ltd [2012] FCA 1083 at [33] [66]

per Keane JA(Muir JA and Douglas J

per Greenwood J; Burton v Spencer [2015] QSC 187 at

per Henry J.

Perfection and entry

23.24 While a judgment or order is operative from the time that it is pronounced by the judge, it ordinarily still needs to be entered and perfected into a formal document.41 In some jurisdictions, a judgment or order can only be enforced, or appealed, after being formally entered.42 The process, variously described as ‘entering’, ‘authenticating’, ‘perfecting’ or ‘filing’ a judgment, marks the conclusion of the judicial function insofar as the dispute the subject of the judgment or order is concerned. Entry is achieved by the parties or court drawing up, and the court signing or sealing, the judgment or order. Once the order has been entered, the judge is functus officio, and has ordinarily no capacity to reconsider or vary his or her decision, except to correct an accidental slip or omission or in the narrow range of circumstances discussed below.43

Page 11 of 27 Chapter 23 Judgments and Orders

41 Compare, for example, Federal Court Rules 2011 (Cth) r 39.31, Supreme Court Civil Rules 2006 (SA) r 241(5) and Rules of the Supreme Court 1971 (WA) O 43 r 2, which set out certain orders which do not need to be formally entered in the court’s record. 42 See, for example, Federal Court Rules 2011 (Cth) r 39.31(1); Court Procedures Rules 2006 (ACT) r 1606(7); Supreme Court Rules (NT) r 60.01; Uniform Civil Procedure Rules 1999 (Qld) r 661(4); Supreme Court Rules 2000 (Tas) r 812(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 60.01(1). 43 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 at [4]–[7] per Menzies J, [2] per Gibbs J; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1998) 165 CLR 268 at 289 per Gaudron J; Director of Public Prosecutions v Reginald Edwards [2012] VSCA 293 at [15]–[16]

per Warren CJ.

23.25 Where the court sends a draft judgment to the parties and they agree the consequential orders, the court may excuse the parties’ attendance on the delivery of the judgment. The court cannot, however, dispense with the formality of handing down judgment,44 since this is what gives the decision its date and its effect, and is required by the principle of publicity.45 The rules dictate the manner of entering a judgment and the form that a judgment must take. A judgment or order must be sealed with the seal or stamp of the court, or otherwise signed by a judge or registrar of the court.46 The seal consists of a mark placed to indicate that the court issued the document.47

44 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 36.3. 45 See Chapter 3, 3.48 ff. 46 Federal Court Rules 2011 (Cth) r 39.35(1); Court Procedures Rules 2006 (ACT) r 1606; Uniform Civil Procedure Rules 2005 (NSW) r 36.11; Supreme Court Rules (NT) rr 60.02 and 60.04; Uniform Civil Procedure Rules 1999 (Qld) r 661(2); Supreme Court Civil Rules 2006 (SA) r 241(3); Supreme Court Rules 2000 (Tas) r 813; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 60.01(1); Rules of the Supreme Court 1971 (WA) O 43 r 3. 47 See, for example, Supreme Court Rules (NT) 60.02; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 60.02; Rules of the Supreme Court 1971 (WA) O 43 r 3.

23.26 The principle that a judgment takes effect immediately sits awkwardly with the rule that a court is functus officio only when its judgment has been formally entered and perfected. Until such time, the court’s jurisdiction is not exhausted and the court may recall the judgment or vary it, as described below.

Page 894

Drawing up by the court or by a party

23.27 Although the court is primarily responsible for drawing up its judgments or orders, it may ask a party to do so.48 This is normally done where the order is complicated and the parties are best placed to formulate precisely what is to follow from the court’s decision, but may also be done as a matter of administrative convenience for the court,

Page 12 of 27 Chapter 23 Judgments and Orders particularly where a party has already prepared a proposed form of order which can be readily amended to capture the court’s ultimate decision.

48 See, for example, Federal Court Rules 2011 (Cth) r 39.33; Supreme Court Rules 2015 (Vic) r 60.02(2).

23.28 Where a party instead of the court draws up the order, it is common practice for that party to first circulate a draft of the order to the other parties, to ensure it accords with their understanding of the court’s decision, before sending the draft order to the court to be settled and entered, assuming the court itself is satisfied the order, as drawn up, accurately reflects its intended decision. If it does not, the court will simply amend the draft order so as to better reflect its intention, before entering the order.

Service of judgments and orders

23.29 As a court document, the court will provide the parties to the proceedings with a copy of its judgment or order, once authenticated, provided each party has supplied the court with an address for service. Unless otherwise specified, it is not incumbent on parties to serve each other, or any interested third parties, with copies of court orders.49 The position is different where a party wishes to enforce an order as against another person or party, in which case that party must typically serve the order on the person against whom it is to be enforced.50

49 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 36.14. 50 See, for example, Federal Court Rules 2011 (Cth) rr 39.02 and 41.07; Court Procedures Rules 2006 (ACT) r 2015; Uniform Civil Procedure Rules 2005 (NSW) rr 36.14, 39.18, 39.24 and 40.7; Supreme Court Rules (NT) rr 66.10, 71.04, 72.06 and 73.06; Uniform Civil Procedure Rules 1999 (Qld) Chs 19 and 20; Supreme Court Civil Rules 2006 (SA) r 260; Supreme Court Rules 2000 (Tas) r 142; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.10, 71.04, 72.06 and 73.06; Civil Judgments Enforcement Act 2004 (WA) ss 28, 36(2), 50(2) and 60(2).

23.30 In certain types of proceedings, a judgment of the court may affect persons that have not been party to the proceedings, for example, in proceedings concerning the administration of estates of deceased persons, the execution of trusts or the sale of property. The rules of court in some jurisdictions make special provision for such situations.51 The court may direct that notice of the judgment be served on any person affected including, if necessary, by way of public advertisement. The rules provide that any person so served shall be bound by the judgment as if he or she had originally been a party to the claim. Where it is impractical to serve an affected party, the court may dispense with service.

Page 895

Page 13 of 27 Chapter 23 Judgments and Orders 51 For example, Uniform Civil Procedure Rules 2005 (NSW) r 46.12; Supreme Court Rules (NT) r 59.05; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 59.05; Rules of the Supreme Court 1971 (WA) O 61 r 3.

Correcting, varying or setting aside a judgment Correcting superficial errors — the slip rule

23.31 Courts have jurisdiction to amend judgments or orders which do not reflect what they actually decided or intended.52 For example, if a court intended to hold a defendant liable to pay a sum of money, but due to an oversight its judgment said ‘plaintiff’ in place of ‘defendant’, the court could correct its judgment so as to name the defendant as the liable party. Similarly, if a judgment or order mistakenly states a wrong date or figure, or contains an arithmetical error, the court is able to correct it. This is known as the ‘slip rule’. As the Full Court explained in Flint v Richard Bustuttil & Company Pty Ltd :53 The purpose of the slip rule is to avoid injustice to litigants by ensuring that the court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention the court would have had but for the failure that caused the accidental slip or omission. It may be exercised to prevent unintended consequences of the order and in this way give effect to the court’s intention. It is not confined to errors or omissions of the court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative. [T]he slip rule may be invoked ‘where the proposed amendment is one upon which no real difference of opinion can exist’ but … it does not apply if the amendment is a matter of controversy and does not extend to mistakes resulting from a deliberate decision.

52 Federal Court Rules 2011 (Cth) r 39.05(e), (g) and (h); Court Procedures Rules 2006 (ACT) r 1613(d); Uniform Civil Procedure Rules 2005 (NSW) r 36.17; Supreme Court Rules (NT) r 36.07; Uniform Civil Procedure Rules 1999 (Qld) r 667(d); Supreme Court Civil Rules 2006 (SA) r 242(1); Supreme Court Rules 2000 (Tas) r 435; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.07; Rules of the Supreme Court 1971(WA) O 21 r 10 (see also O 43 r 15); see also DJL v The Central Authority [2000] HCA 17 at [93],[104],[107] 53 [2013] FCAFC 131 at [26]–[27]

per Kirby J.

per Allsop CJ, Katzmann and Perry JJ.

23.32 The aim of the slip rule is to ensure that the formal document containing the court’s judgment or order conforms to the court’s decision.54 For this reason, the jurisdiction may be exercised both before and after the judgment or order has been entered. It can be exercised of the court’s own motion or on the application of any party.55 Care must be taken to distinguish this purely technical jurisdiction from the more far-reaching jurisdiction to alter the substance of a judgment or order.

54 Flint v Richard Bustuttil & Company Pty Ltd [2013] FCAFC 131 at [26]–[27]

per Allsop CJ, Katzmann and Perry JJ.

Page 14 of 27 Chapter 23 Judgments and Orders 55 For the purposes of the slip rule in the Uniform Civil Procedure Rules 2005 (NSW), ‘party’ has been held to include any person who has an interest in the proceedings; it is not limited to persons formally joined as parties: JP Morgan Chase Bank, National Assocation Flecher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31 at [147] per Beazley P, [162]–[164] per MacFarlan JA.

Varying a judgment before it has been perfected

23.33 The power of courts to vary or set aside their judgments and orders goes well beyond merely correcting accidental slips or omissions under the slip rule.56 Before

Page 896 entry, a court may reopen its judgment or order if there is good reason to consider that, in its earlier judgment, it proceeded on a misapprehension as to the facts or law, or the interests of justice so require.57 After entry, the position is different. Once entered, a judgment can ordinarily only be varied or set aside where it was obtained by fraud, made in the absence of a party, or upon the party having the benefit of the judgment so consenting.58 Because of the importance of finality in litigation, courts exercise great caution before reopening their orders.59

56 See Federal Court Rules 2011 (Cth) rr 39.04 and 39.05; Court Procedures Rules 2006 (ACT) r 1613; Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 and 36.16; Supreme Court Rules (NT) rr 7A.12(2), 21.07, 22.15, 24.06, 42.04(1), 49.02(2), 59.05(6) and 62.05; Uniform Civil Procedure Rules 1999 (Qld) rr 667 and 668; Supreme Court Civil Rules 2006 (SA) r 242; Supreme Court Rules 2000 (Tas) rr 288(4), 355, 366, 374,497, 530(3), 563 and 570(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 21.07, 22.15, 22.23, 24.06, 29.12.1(6), 30.09.1(6), 42.04(1), 46.08, 49.02(2), 59.05(6) and 62.05; Rules of the Supreme Court 1971 (WA) O 11A r 12,O 13 r 14, O 14 r 12, O 16 r 4, O 19 r 5(3), O 34 r 3, O 36B r 8(2), O 39A r 4, O 58 r 23, O 65 r 6(1). 57 Autodesk Inc v Dyason (No 2) [1993] HCA 6 at [2]–[4]

per Mason CJ, [1] per Gaudron J; De L v Director-General,

NSW Department of Community Services [1997] HCA 14 at [20] Kirby JJ; Elliott v R [2007] HCA 51 at [31–[32]

per Toohey, Gaudron, McHugh, Gummon and

per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

58 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [135]–[138],[152] per Wheeler and McLure JJA and Miller AJA. On why the distinction between perfected and unperfected judgments holds such relevance, see Burrell v R [2008] HCA 34 at [18]–[20]

per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.

59 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38–9; [1982] HCA 51 at [16]

per

Mason and Wilson JJ; Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [81][84] Gray, Lander and Katzmann JJ.

per

23.34 The jurisdiction to revise an order prior to its entry can be invoked to put right a plain mistake on the part of the court, to draw the court’s attention to a fact or point of law that was plainly relevant but which had been omitted or overlooked, where new facts were discovered after judgment which could not have been uncovered prior, or where a party had not had a fair opportunity to consider a matter when it was raised for the first time during the proceedings or, indeed, in the reasons for the judgment itself. The purpose of the jurisdiction is to avoid the need for appeals on points that are not in controversy and which are best put right by the judge who had made the order.

Page 15 of 27 Chapter 23 Judgments and Orders

23.35 It must be stressed, however, that it is not the purpose of the jurisdiction to provide an alternative to the appeal procedure. Care must be taken to ensure that the facility of correcting errors does not become a vehicle for rehearing cases and thereby usurping the appellate jurisdiction. The English Court of Appeal has warned counsel against treating the trial judge to the kind of exposition expected on appeal.60 Not only would such approach be improper, Rix LJ explained, it would also be wasteful because extensive legal argument at that stage would not obviate the need for an appeal but could, on the contrary, increase its likelihood. Only in the most extraordinary or exceptional circumstances would it be right to present to the judge extensive legal argument after the judge has circulated judgment.61

Page 897

60 Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513 (CA). 61 University of Wollongong v Metwally (No 2) [1985] HCA 28 at [7]

per Gibbs CJ, Mason,Wilson, Brennan, Deane

and Dawson JJ; Autodesk Inc v Dyason (No 2) [1993] HCA 6 at [1],[4] Constructions Pty Ltd v Irving (No 2) [2005] NSWCA 1 at [24]

per Brennan J, [1] per Gaudron J; Multiplex

per Ipp J (Santow J and Pearlman AJA agreeing).

23.36 In Autodesk Inc v Dyason (No 2) ,62 Mason CJ observed: The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant’s part, he or she has not been heard.It is true that the jurisdiction will be exercised with great caution. It is equally true … that ‘(g)enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard’. But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders … [T]he public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law … However, it must be emphasized [sic] that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

Page 16 of 27 Chapter 23 Judgments and Orders 62 [1993] HCA 6 at [2]–[4]

.

23.37 It would be wrong to assume that after judgment a court will never consider a new argument which could and should have been raised during the proceedings. There could be circumstances where the court will have to consider an argument notwithstanding that a party was remiss in not raising it during the hearing. It would be pointless, for example, to ignore an argument that demonstrates that the court has no jurisdiction to adjudicate on the matter. Whenever a late point raises a matter which goes to the foundation of the claim and which would conclusively lead to a reversal of the decision on appeal, the court should consider whether it would not be better to address the error before the judgment is entered in order to obviate the need for an appeal. Where the late point is controversial, however, the court should generally resist the temptation of varying its judgment and should leave further consideration of the point to the appellate court, should the parties choose to pursue the matter by appeal.63

63 See Multiplex Constructions Pty Ltd v Irving (No 2) [2005] NSWCA 1 at [24] AJA agreeing).

per Ipp J (Santow J and Pearlman

23.38 There is no hard and fast test for distinguishing between situations where it is appropriate to apply to the judge to correct what is thought to be an error and situations where the appropriate course is to appeal. But it is safe to say that the court should vary a judgment whenever it is clear that an appeal is bound to succeed due to some plain error or oversight or by reason of some new facts discovered after judgment has been given, or where a party had been taken by surprise. In such situations, it would be sensible for the judge to remedy the error or default and obviate the need for an appeal.

Page 898

Finality of judgments The general principle

23.39 As a general rule and subject to any statutory ‘grace periods’ following entry,64 once a judgment or order has been entered, the court’s jurisdiction is exhausted and it no longer possesses the power to revise or recall it.65 Both justice and public policy demand that once a dispute has been determined by court judgment, the parties and the community should be able to proceed on the assumption that the matter has been conclusively settled once and for all. Justice requires that there should be a limit to the uncertainty created by legal disputes.66 Since rights that are capable of being continually challenged are robbed of their practical value, a stable system of rights must adopt a general principle of self-denial and accept that court determination puts matters beyond dispute. As Lord Wilberforce observed in The Ampthill Peerage :67 Any determination of disputable fact may, the law recognizes [sic], be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and having reached that solution it closes the book. The law knows,and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest

Page 17 of 27 Chapter 23 Judgments and Orders of peace, certainty and security it prevents further inquiry.

64 See, for example, Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A) and 36.16(3B); Uniform Civil Procedure Rules 1999 (Qld) r 667(1)(b). In Burrell v R [2008] HCA 34 , Kirby J was critical of what he described as the ‘overrapid formalisation’ of a order dismissing an appeal in circumstances where the dismissal was premised on an error, disclosed in the reasons for dismissal, but which reasons (which ran to 130 odd pages) the parties had no opportunity to meaningfully review before the order effecting dismissal was formally entered: at [127]–[128] (cf the majority at [27]– [28]). The existence of a grace period in that case would have avoided the issues of which Kirby J complained, while still providing the requisite finality. 65 Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49

per Barwick CJ.

66 See discussion of the time dimension of justice in Chapter 1, 1.62–1.63 and Chapter 26, 26.1. 67 [1977] AC 547

at 569

.

23.40 The principle of finality has been described as a ‘central and pervading tenant of the judicial system’.68 It protects parties from attempts to reagitate matters which have already been decided. It also serves as ‘the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time’.69 The principle of finality does not, however, exclude all possibility of review of court decisions. On the contrary, the law provides an appeal procedure so that court decisions may be challenged where appropriate. Nor does the principle of finality exclude the possibility of setting aside a judgment that has been given without the participation of one of the parties, such as a judgment in default of a defence or in absentia. But the general rule is that, once proceedings in which all the concerned parties have participated have concluded in a judgment on the merits, the judgment is sealed with

Page 899 a stamp of finality and cannot be reopened.70 Exceptions to this general rule can be found in the rules of court in each jurisdiction.71 A small number of exceptions, to which the balance of this section is devoted, also exist apart from (though often also find expression in) the rules of court.72

68 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [34]

per Gleeson CJ, Gummow,Hayne and Heydon JJ.

69 Burrell v R [2008] HCA 34 at [16] per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ. As their Honours note, ‘Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly’. 70 One of the leading cases on the reopening of judgments after entry is DJL v The Central Authority [2000] HCA 17 . In DJL, the court cautioned that not all courts have the same powers to vary or set aside their judgments, stating that ‘attention must be given to the text of the governing statutes and any express or implied powers to be seen therein’: at [43] per Gleeson CJ, Gaudron,McHugh, Gummow and Hayne JJ (see also [96], [97], [107] per Kirby J). As Callinan J observed at [189]: ‘… intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings. Those authorities have not been doubted in this Court’. 71 See Federal Court Rules 2011 (Cth) r 39.05; Court Procedures Rules 2006 (ACT) r 1613(2); Uniform Civil Procedure Rules 2005 (NSW) rr 36.15,36.16(2) and 36.17; Supreme Court Rules (NT) rr 7A.12(2), 21.07, 22.15, 24.06, 42.04(1), 49.02(2), 59.05(6) and 62.05; Uniform Civil Procedure Rules 1999 (Qld) rr 667(2) and 668; Supreme Court Civil Rules 2006 (SA) r 242; Supreme Court Rules 2000 (Tas) rr 288(4), 355, 366, 374, 497, 530(3), 563 and 570(2); Supreme

Page 18 of 27 Chapter 23 Judgments and Orders Court (General Civil Procedure) Rules 2015 (Vic) rr 21.07,22.15, 22.23, 24.06, 29.12.1(6), 30.09.1(6), 42.04(1), 46.08, 49.02(2), 59.05(6) and 62.05; Rules of the Supreme Court 1971 (WA) O 11A r 12, O 13 r 14, O 14 r 12, O 16 r 4, O 19 r 5(3), O 34 r 3,O 36B r 8(2), O 39A r 4, O 58 r 23, O 65 r 6(1). 72 As Callinan J observed in DJL v The Central Authority [2000] HCA 17 at [189] , ‘[t]he stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or the failure to give a party a hearing’.

Setting aside a judgment obtained by fraud

23.41 An action can be brought to set aside a judgment on the ground that it has been obtained by fraud.73 An applicant may apply to the court that gave the judgment to have it set aside provided it can support the allegation of fraud with sufficient evidence, show it only became aware of the fraud after the trial and establish that the fraud procured the result of the trial. It is not enough that the fraud was used in relation to a collateral issue which did not affect the result.74

73 McDonald v McDonald [1965] HCA 45 at [4]–[6] per Barwick CJ; DJL v The Central Authority [2000] HCA 17 at [36],[37]

per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, [94] per Kirby J; Spalla v St George Motor

Finance Ltd (No 5) [2004] FCA 1262 at [60],[61],[66] per French J. See also Federal Court Rules 2011 (Cth) r 39.05(b); Court Procedures Rules 2006 (ACT) r 1613(2)(b);Uniform Civil Procedure Rules 2005 (NSW) r 36.15(1); Uniform Civil Procedure Rules 1999 (Qld) r 667(2)(b); G Dal Pont, ‘Judgments Fraudulently Obtained: the Forgotten Equity’ (1995) 14 University of Tasmania Law Review 129. 74 McDonald v McDonald [1965] HCA 45 at [4]–[5] per Barwick CJ.

23.42 In the seminal case of Wentworth v Rogers (No 5), Kirby P outlined six principles governing proceedings to set aside a judgment for fraud:75 First … particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires … Secondly, it must be shown by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh

Page 900   facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment … Thirdly, mere suspicion of fraud, raised by fresh facts later discovered,will not be sufficient to secure relief … Fourthly … the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment …

Page 19 of 27 Chapter 23 Judgments and Orders

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge … Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.

75 (1986) 6 NSWLR 534 at 538–9 (citations omitted).

23.43 While a court can set aside its own judgment in the same proceedings in which the judgment was originally given, the High Court has consistently expressed the view that judgments procured by fraud should be impeached in separate proceedings.76 This is because, as the Privy Council explained in Hip Foong Hong v H Neotia and Co :77 … where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined.78

76 McDonald v McDonald [1965] HCA 45 at [4]–[5] per Barwick CJ; DJL v The Central Authority [2000] HCA 17 at [36]– [37]

per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ,[189] and fn 258 per Callinan J.

77 [1918] AC 888

at 894

.

78 See also Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699 Legal Practitioners Complaints Committee [2005] WASCA 217 at [135]

per Handley JA; Lashanksy v

per Wheeler and McLure JJA and Miller

AJA; Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSCA 23 at [42] per Warren CJ, Tate and McLeish JJA; G Dal Pont, ‘Judgments Fraudulently Obtained: the Forgotten Equity’ (1995) 14 University of Tasmania Law Review 129 at 132.

By consent

23.44 Where all parties consent, the court may set aside a perfected judgment.79 In determining whether to give effect to such consent, the court will have regard to whether and, if so, how the rights of any third parties will be affected. Where the judgment or order affects only the rights of the parties inter se, it is open to the parties to simply agree not to enforce the judgment, rather than applying to have it set aside.80

Page 901

Page 20 of 27 Chapter 23 Judgments and Orders

79 DJL v The Central Authority [2000] HCA 17 at [34]

per Gleeson CJ, Gaudron, McHugh,Gummow and Hayne JJ;

Lashanksy v Legal Practitioners Complaints Committee [2005] WASCA 217 at [151]–[152] McLure JJA and Miller AJA. 80 DJL v The Central Authority [2000] HCA 17 at [93]

per Wheeler and

per Kirby J.

Absence of or failure to hear a party

23.45 The court may set aside its own judgment where it was not given on the merits, whether by reason of the absence of a party or the denial of procedural fairness to a party through no fault of its own.81 It is a fundamental principle of natural justice, applicable to all courts, that a person against whom a claim or charge is made must be given a reasonable opportunity to appear and present their case. Procedural fairness only requires however that a party be given the opportunity to present its case, not that the court ensures the party takes best advantage of that opportunity.82

81 Cameron v Cole (1944) 68 CLR 571

; Taylor v Taylor (1979) 143 CLR 1

; Lashanksy v Legal Practitioners

Complaints Committee [2005] WASCA 217 at [136]–[138] per Wheeler and McLure JJA and Miller AJA. See Chapter 22, 22.105 ff regarding the options open to the court upon non-attendance of a party at trial. 82 Lashanksy v Legal Practitioners Complaints Committee [2005] WASCA 217 at [138] and Miller AJA, citing Sullivan v Department of Transport (1978) 1 ALD 383 at 403

per Wheeler and McLure JJA per Deane J.

Exceptional circumstances

23.46 It is now recognised that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances in order to repair accidents and oversights which would otherwise occasion a serious injustice.83 It has been suggested (but not accepted) that intermediate appellate courts should also have such jurisdiction.84 The party seeking to reopen the order bears a heavy burden to show that the accident or oversight occasioning the serious injustice occurred through no fault of its own.85

83 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38–9; [1982] HCA 51 at [16]

per Mason and Wilson JJ; Burrell v R [2008] HCA 34 at [105]

84 DJL v The Central Authority [2000] HCA 17 at [96],[100]–[103],[106],[142] [72]–[74],[91],[123]

per Kirby J. per Kirby J; Burrell v R [2008] HCA 34 at

per Kirby J. Cf the majority in DJL at[50] and Burrell at [27]–[29].

85 DJL v The Central Authority [2000] HCA 17 at [96],[106]

per Kirby J.

Page 21 of 27 Chapter 23 Judgments and Orders

Judgments and orders by consent Entering consent judgment

23.47 It is not uncommon for parties to come to an agreement about the outcome of the proceedings, or some issue in dispute in the proceedings, before the court is called upon to decide the matter. In such situations the parties are free to agree the terms upon which the proceedings will be concluded, or issue resolved, and to place such terms before the court so that it may draw up an order or a judgment accordingly.86 Such orders are termed ‘consent orders’ and are ordinarily made ‘on the papers’, meaning that the parties need not appear before the court in order to have the orders made.

Page 902 A proposed form of order must be drawn up in the agreed terms, be expressed to be ‘by consent’, and be signed by the legal representatives of each of the parties to whom the order relates or, if the parties are not represented, by the parties personally.87 The purpose of the signature requirement is to avoid dispute about whether the parties gave their informed agreement to the order.

86 Federal Court Rules 2011 (Cth) r 39.11; Court Procedures Rules 2006 (ACT) r 1611(1); Uniform Civil Procedure Rules 2005 (NSW) r 36.1A; Supreme Court Rules (NT) r 59.06(3); Uniform Civil Procedure Rules 1999 (Qld) r 666(1); Supreme Court Civil Rules 2006 (SA) r 227(1); Supreme Court Rules 2000 (Tas) r 240(1); Supreme Court (General Civil Procedure) Rules 2015(Vic) r 59.07(1); Rules of the Supreme Court 1971 (WA) O 43 r 16. 87 The rules of court in Victoria, Western Australia and Tasmania do not permit proposed consent orders to be signed by litigants in person (Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 59.06(2), 59.06(8)(a), 59.07(2); Rules of the Supreme Court 1971 (WA) O 42 rr 7 and 8; Supreme Court Rules 2000 (Tas) r 341(5)). The rules in the Australian Capital Territory allow a litigant in person to sign a proposed consent order only in front of a legal practitioner: r 1612(3). In consequence, when in Victoria,Western Australia or Tasmania, the parties to a proceeding are in agreement as to the form of order or judgment but one or more of the parties are self-represented, the court cannot make consent orders ‘on the papers’ and will instead require the parties to attend before it, so as to ensure the litigant(s) in person understand the terms and effect of, and are giving informed consent to, the proposed order. There is no equivalent restriction on litigants in person signing proposed consent orders in other jurisdictions. Given the court is not obliged to make consent orders and can require the parties’ attendance in any case, the restrictions in Victoria, Western Australia and Tasmania are argubly superfluous. They may serve to unnecessarily increase costs by requiring the parties’ attendance before the court in cases where the proposed orders are uncontroversial and would otherwise be made as a matter of course.

23.48 The court is not obliged to make the order or give the judgment proposed by the parties. Indeed, it cannot by consent make an order which it otherwise has no jurisdiction to make.88 Where the court has concerns about the form of the proposed judgment or order, it may require the parties to attend before it to address those concerns or alternatively simply decline to make the orders sought.89 This is part and parcel of the court’s inherent or implied powers to control its own processes. As French J noted in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc : 90 It is in the public interest that, in considering agreements between parties requiring orders of a Court, the Court does not act as a mere rubber stamp. What is proposed must always be scrutinised to determine whether undertakings or consent orders are within power and are appropriate.

Page 22 of 27 Chapter 23 Judgments and Orders

In the exercise of [its power to make orders by consent] the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so … Consideration of the public interest, however, must also weigh the desirability of non-litigious resolution of … proceedings.

88 Thomson Australia Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 at [25] Mason, Murphy and Wilson JJ.

per Gibbs CJ, Stephen,

89 See, for example, Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 , where Finkelstein J declined to make proposed consent orders in chambers and required the parties to attend before him to address the court’s concerns regarding the proposed form of order itself and its potential consequences: at [5]–[6]. 90 [1999] FCA 18 at [1],[18]

.

23.49 Where consent orders are requested by parties with legal representation, and who are able to understand and evaluate the terms of the proposed orders, courts

Page 903 should give effect to the agreement between the parties so long as the proposed orders are within the court’s jurisdiction and otherwise unobjectionable. It is not for the court in such circumstances to substitute its own view of the orders which it would have made for those agreed by the parties.91 Typically, parties require leave to appeal against a judgment given by consent.92

91 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [20]–[21]

per French J.

92 See Chapter 25, 25.35, 25.39, 25.42, 25.44 and 25.50.

Court’s power to hand down judgment against the parties’ wishes

23.50 Courts are empowered to give such judgments or make such orders as the case before them requires, irrespective of whether such judgment or order has actually been sought by a party.93 As sometimes happens, parties to the proceedings settle their dispute after it has been heard by the court, but before judgment is delivered. In such circumstances, a question arises as to whether the court can or should, despite settlement,proceed to deliver its judgment or publish its reasons. This question arose for consideration in Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance (recs & mgrs apptd) (in liq) .94 In Clarke, the parties resolved the proceedings after trial but before judgment could be handed down. The settlement required court approval and the parties’ application for such approval came before the trial judge for determination. In considering the application, Croft J contemplated whether or not he should publish the reasons for the judgment he had proposed to pronounce in the substantive proceedings, either in the course of the approval application(so that the parties might see and respond to those reasons, insofar as relevant to the application), or subsequently, so as to give context to the approval judgment. No party objected to the publication of reasons, although there was some dispute about when publication should occur.

Page 23 of 27 Chapter 23 Judgments and Orders His Honour concluded that the reasons should be published, but only in conjunction with the court’s judgment approving or not approving the settlement, citing both the general public interest in the matter and the utility of the reasons in understanding the outcome of the settlement application.95 Croft J noted:96 More generally, there has been a great deal of public speculation in relation to the proceedings, both in relation to the substance of the proceedings and, more broadly, in relation to managed investment schemes of this nature, the role of financial advisers

Page 904 and the regulation of these schemes and advisers more generally. Consequently, it is in the public interest that the reasons be published to inform the public discussion and understanding of the nature of the Great Southern proceedings.

93 Federal Court of Australia Act 1976 (Cth) s 22; Court Procedures Rules 2006 (ACT) r 1600; Uniform Civil Procedure Rules 2005 (NSW) r 36.01 and Civil Procedure Act 2005 (NSW) s 90(1); Supreme Court Rules (NT) r 59.01; Uniform Civil Procedure Rules 1999 (Qld) r 658; Supreme Court Civil Rules 2006 (SA) r 223; Supreme Court Rules 2000 (Tas) rr 573(1)(a) and 806;Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 59.01; Rules of the Supreme Court 1971 (WA) O 34 r 8. 94 [2014] VSC 516

. See also Voss v Suncorp-Metway (No 1) [2004]1 Qd R 212

; Clarke (as trustee of the Clarke

Family Trust) v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq) (Ruling No 3) [2014] VSC 584 Osborne v Auckland Council [2014] 1 NZLR 766

;

.

95 See generally [18]–[24] per Croft J. 96 [2014] VSC 516 at [23] (citations omitted).

23.51 In Barclays Bank plc v Nylon Capital LLP ,97 Lord Neuberger explained that public interest in a case provides a ‘powerful reason’ to deliver judgment once the case has been heard, notwithstanding its subsequent settlement: Where a case has been fully argued, whether at first instance or on appeal, and it then settles or is withdrawn or is in some other way disposed of, the court retains the right to decide whether or not to proceed to give judgment. Where the case raised a point which it is in the public interest to ventilate in a judgment, that would be a powerful reason for proceeding to give judgment despite the matter having been disposed of between the parties. Obvious examples of such cases are where the case raises a point of law of some potential general interest, where an appellate court is differing from the court below, where some wrongdoing or other activity should be exposed, or where the case has attracted some other legitimate public interest.

97 [2011] EWCA Civ 826 at [74]

.

Page 24 of 27 Chapter 23 Judgments and Orders

23.52 If courts were not free to deliver judgment in cases where the parties settled their dispute post-hearing, powerful defendants like insurance companies could pick and choose which judgments they were happy to see published and which judgments they were willing to pay money to suppress, depending on how they perceived the trial as having gone and the risks of adverse findings being made against them. Clearly, public confidence in the administration of justice would be undermined by such practices.It might also be said that court adjudication is a public service, provided at public expense, for the benefit of all interested persons and not just the litigants before the court. Just as litigants cannot agree amongst themselves to exclude the public from trial hearings so they should not be able to effectively deny the public the opportunity of learning of the court’s judgment, which will often contain legal or other points of general public significance. Those who wish to keep the decisions to themselves are, in most cases, free to choose private forms of dispute resolution.

23.53 There are very few examples of courts in Australia electing to publish their judgments following the settlement of the dispute the subject of the judgment. Accordingly, little attention has been paid to the power of courts to deliver judgments in cases where the parties have compromised their claims against each other, such that no actual controversy remains for judicial determination.98 On one view, the settlement of a matter operates to deprive the court of jurisdiction to determine that matter from the time the settlement takes effect. On another view, the court retains such jurisdiction, it having been properly enlivened at first instance and continuing in existence at the time of the trial, the judgment dealing with the facts as proved at trial. By the time the trial has taken place and the matter subsequently resolved, it is likely that most, if not all, of the court resources required to determine the matter will have already been expended. As such, the impetus for encouraging settlement at that point is greatly reduced.

Page 905

98 See 23.18 above.

Pre- and post-judgment interest Overview

23.54 A judgment that is given for debt or for damages will of necessity be given some considerable time after the liability arose, in some cases years later. If the entitlement to recompense is not to be seriously eroded by the passage of time,the court must have the power to award interest on the amount of debt or damages, to be calculated from the time at which the liability to pay first arose, to the date of judgment. Accordingly, the court has the power to include in a judgment for debt or damages interest on the debt or damages awarded.99 We may refer to such a judgment as a judgment for interest. Similarly, if a judgment award is not to be eaten away by the delay in satisfying it, interest must also accrue on on the judgment debt itself (including any judgment for interest)from the date of judgment until such time as the judgment debt is satisfied.100

Page 25 of 27 Chapter 23 Judgments and Orders 99 Federal Court of Australia Act 1976 (Cth) s 51A; Court Procedures Rules 2006 (ACT) r 1619; Civil Procedure Act 2005 (NSW) s 100; Supreme Court Act (NT) s 84; Civil Proceedings Act 2011 (Qld) s 58; Supreme Court Act 1935 (SA) >s 30C; Supreme Court Civil Procedure Act 1932 (Tas) ss 34–35; Supreme Court Act 1986 (Vic) ss 58–60 (NB: interest under s 58 can only be awarded on debts and sums certain, while interest under s 60, available in a broader range of cases, can only be awarded from the date the proceeding was instituted); Supreme Court Act 1935 (WA) s 32(1). 100 Federal Court of Australia Act 1976 (Cth) s 52; Court Procedures Rules 2006 (ACT) r 1620; Civil Procedure Act 2005 (NSW) s 101; Supreme Court Act (NT) s 85; Civil Proceedings Act 2011 (Qld) s 59; Supreme Court Act 1935 (SA) s 114; Supreme Court Civil Procedure Act 1932 (Tas) s 165; Supreme Court Act 1986(Vic) s 101; Civil Judgments Enforcement Act 2004 (WA) s 8 .

Pre-judgment (judgment for interest) The power to award interest

23.55 With the exception of instances where a party is entitled to interest as of right, for example pursuant to a contractual entitlement or under statute, the award of prejudgment interest is a discretionary matter for the court.101 The legislation governing the courts in each jurisdiction empowers courts to include in an award for debt or damages interest at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt or damages in respect of which judgment is given.102 The purpose of this power is to enable the court to compensate a plaintiff for being kept out of the money to which it has been entitled since its cause of action accrued.103 The power may serve to encourage defendants to favour the early resolution of litigation.104

Page 906

101 Roberts v Rodier [2006] NSWSC 1084 at [59]–[61]

per Campbell J.

102 Federal Court of Australia Act 1976 (Cth) s 52; Court Procedures Rules 2006 (ACT) r 1620; Civil Procedure Act 2005 (NSW) s 101; Supreme Court Act (NT) s 85; Civil Proceedings Act 2011 (Qld) s 59; Supreme Court Act 1935 (SA) s 59; Supreme Court Civil Procedure Act 1932 (Tas) s 165; Supreme Court Act 1986(Vic) s 101; Civil Judgments Enforcement Act 2004 (WA) s 8 . On the court’s equitable jurisdiction to award interest, independently of statute, see Kirk v PBP Accounting Solutions Pty Ltd [2015] VSC 173 at [39] 103 Grincelis v House [2000] HCA 42 at [16]

per Macaulay J.

per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ;

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540] JJA; Roberts v Rodier [2006] NSWSC 1084 at [59]–[61] 104 Grincelis v House [2000] HCA 42 at [16]

per Beazley, Giles and Santow

per Campbell J.

.

23.56 Liability to pay interest may arise under the express terms of a contract, or pursuant to statute, as in the case of certain personal injury awards. It is important, therefore, that the plaintiff clarify the basis of any claim for interest in its originating process. If the claim is for a specified amount of money, the particulars of claim should state the rate of interest claimed, the date from which it is claimed, the date to which it is calculated (being no later than the date on which the originating process is issued) and the daily rate at which interest accrues after that date.

Page 26 of 27 Chapter 23 Judgments and Orders

No interest on interest

23.57 Where a liability to pay interest arises independently of the court’s discretionary power to award judgment for interest, the court will not exercise that power so as to award interest on interest already payable, for to do so would be to oblige the defendant to pay twice over. Indeed, the rules provide that the court may not award interest on interest.105

105 Federal Court of Australia Act 1976 (Cth) s 51A(2)(a); Court Procedures Rules 2006 (ACT) r 1619(6)(a); Civil Procedure Act 2005 (NSW) s 100(3)(a); Supreme Court Act (NT) s 84(2)(a); Civil Proceedings Act 2011 (Qld) s 58(4); Supreme Court Act 1935 (SA) s 30C(4)(a); Supreme Court Act 1986 (Vic) s 60(2)(a); Supreme Court Act 1935 (WA) s 32(2)(a).

The rate of interest

23.58 Where the interest is claimed under a contract, the awardable rate is the contract rate, provided that such contract term is otherwise enforceable. However, a contractual rate of interest governs interest only to the date of judgment. Once judgment has been given, the contractual right merges in the judgment. Thereafter interest accrues on the judgment debt in accordance with statute.106

106 Noble Solutions Pty Ltd v Young [2014] NSWSC 1419 at [10]

per White J.

23.59 Where interest is not recoverable as of right but is awarded at the court’s discretion, the rate of interest typically awarded is the rate 4 per cent above the cash rate set by the Reserve Bank of Australia, from time to time, in the relevant period.107 A higher rate of interest may be awarded, however, where necessary to do justice in any particular case. The court may, for example, express disapproval of a party’s conduct in the proceedings by increasing or reducing the rate of interest or altering the period for which interest is payable.

107 See Management 3 Group Pty Ltd v Lenny’s Commercial Kitchens Pty Ltd (No 2) [2012] FCAFC 92 at [25]–[27] per Jander, Gilmour and Gordon JJ; Federal Court of Australia Practice Note GPN-INT, [2.2]; Court Procedures Rules 2006 (ACT) Pt 2.1, Sch 2; Supreme Court of Queensland Practice Direction No 7 of 2013, [3]; Supreme Court Rules 2000 (Tas) r 5A(2). Cf Victoria where the interest rate is set with reference to the rate fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) from time to time: Supreme Court Act 1986 (Vic) ss 58 and 60 (cf s 59); Management 3, above, at [27].

23.60

Page 27 of 27 Chapter 23 Judgments and Orders Where the court awards judgment in a foreign currency, it will determine a rate of interest that it considers appropriate for that currency, which will normally be the rate at which money in that currency can be borrowed.108

Page 907

108 Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 at [15] Norsemeter Holdings AS v Pieter Boele (No 3) [2002] NSWSC 390 at [20] Cosco Oceania Chartering Pty Ltd (No 4) [2009] FCA 1448 at [8] Geoexplorer Pte Ltd [2017] QSC 219 at[185]

per Byrne J;

per Einstein J; BHPB Freight Pty Ltd v

per Finkelstein J; Mineralogy Pty Ltd v BGP

per Jackson J.

Post-judgment (interest on judgment debts)

23.61 Judgment debts carry interest at a prescribed rate, which interest begins to accrue from the date the judgment is given or takes effect, unless otherwise ordered.109 Post-judgment interest accrues as of right.110 The rate of interest is a statutory rate set by legislation or the rules of court, as varied from time to time. At present, the interest rate in most jurisdictions is 6 per cent above the cash rate set by the Reserve Bank of Australia from time to time.111 This is 2 per cent higher than the rate typically applied to an award of discretionary pre-judgment interest and can be justified by the fact that, from the date of judgment, the liability of the judgment debtor to the judgment creditor is known with certainty. The accrual of post-judgment interest serves to disincentivise unsuccessful parties from delaying payment of judgment debts.112

109 Federal Court of Australia Act 1976 (Cth) s 52; Federal Court Rules 2011 (Cth) r 39.06; Federal Court of Australia Practice Note GPN-INT, [3.2]; Court Procedures Rules 2006 (ACT) r 1620 and Pt 2.2,Sch 2; Civil Procedure Act 2005 (NSW) s 101; Supreme Court Act (NT) s 85; Civil Proceedings Act 2011 (Qld) s 59; Supreme Court of Queensland Practice Direction No 7 of 2013, [4]; Supreme Court Act 1935 (SA) s 114; Supreme Court Civil Procedure Act 1932 (Tas) s 165 and Supreme Court Rules 2000 (Tas) r 5A(3); Supreme Court Act 1986 (Vic) s 101; Penalty Interest Rates Act 1983 (Vic) s 2; Civil Judgments Enforcement Act 2004 (WA) s 8. 110 Hartley Poyton v Ali [2005] VSCA 53 at [100]

per Ormiston JA (Buchanan and Eames JJA agreeing); Noble

Solutions Pty Ltd v Young [2014] NSWSC 1419 at [13]

per White J.

111 Federal Court of Australia Act 1976 (Cth) s 51A(2)(a); Court Procedures Rules 2006 (ACT) r 1619(6)(a); Civil Procedure Act 2005 (NSW) s 100(3)(a); Supreme Court Act (NT) s 84(2)(a); Civil Proceedings Act 2011 (Qld) s 58(4); Supreme Court Act 1935 (SA) s 30C(4)(a); Supreme Court Rules 2000 (Tas) s 5A(3); Supreme Court Act 1986 (Vic) s 60(2)(a); Supreme Court Act 1935 (WA) s 32(2)(a). 112 Maestrale v Aspite (No 2) [2014] NSCWCA 302 at [15] per Barrett and Macfarlan JJA and Beazley P.

End of Document

Chapter 24 Enforcement and Contempt Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 24 — Enforcement and Contempt

Chapter 24 Enforcement and Contempt Page 909 [Current to May 2018]

Introduction

24.1 Following the making of a judgment or order by a court, a party may need to take steps to obtain the benefit of the judgment or order made in its favour. Some judgments and orders are self-effectuating, in the sense that they achieve litigants’objectives without the need for any further action by the parties or anyone else, and do not therefore require an enforcement process.1 A judgment declaring a will to be void, for example, establishes legal ‘facts’ which are ends in themselves and need no follow-up. Similarly, a court order striking out a statement of claim, or directing that if a party does not serve an expert report by a certain date it will not be allowed to rely on that expert’s evidence at the trial, will achieve its objective without the need for any further steps. However, many judgments and orders are means to an end in the sense that they demand an act of compliance, usually by one or more of the parties. An order for specific performance of a contract, for instance, will require a party to perform a certain act, or refrain from a certain act. A freezing order will forbid the defendant from dissipating any of its assets. A search order will direct the defendant to allow the plaintiff’s representatives to enter the defendant’s premises and collect certain evidence. Above all, a money judgment will require the defendant to pay a sum of money to the plaintiff.

1

Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158 at [7]

per Finkelstein J.

24.2 The law provides a machinery of enforcement, but the courts do not, on the whole, invoke this machinery of their own initiative. The enforcement of judgments and orders that require compliance is left to the initiative of the interested parties.This process of enforcement is often termed as ‘execution’ and is usually commenced by the issuing by a court of a writ (commonly, a ‘writ of execution’). In Re Overseas Aviation Engineering (GB) Ltd ,2 Lord Denning MR summarised the process of execution as follows: ‘Execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment.That this is the meaning is seen by reference to

Page 910

Page 2 of 52 Chapter 24 Enforcement and Contempt

that valuable old book ‘Termes de la Ley’, where it is said: Execution is, where judgment is given in any action, that the plaintiff shall recover the land, debt, or damages, as the case is;and when any writ is awarded to put him in possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he hath the possession of the land, or is paid the debt or damages, or hath the body of the defendant awarded to prison, then he hath execution.

2

[1962] 3 All ER 12 at 16

. See also Blackman v Fysh [1892] 3 Ch 209

at 217

per Kekewich J.

24.3 The means that the parties may employ for the enforcement of judgments and court orders are extensive, varied and at times complex and confusing. Sir Jack Jacob observed, in relation to the English system (although parallels may certainly be drawn in Australia):3 The distinguishing feature of the English system of enforcement of judgment and orders of the court is that it is an unplanned, unsystematic, haphazard, complex system. It operates, especially in relation to money judgments, largely on a hit-or-miss basis. In relation to both money and non-money judgments, it is in part effective, but in part it is ineffective, inefficient, somewhat random and sometimes oppressive. It functions in the absence of a general body of principles, but rather on an ad hoc basis applicable to particular modes of enforcement. From the point of view of legal and social theory, the enforcement process is in a kind of backwater, seldom examined or studied.

3

Sir Jack I H Jacob, The Fabric of English Civil Justice, Stevens & Sons, London, 1987, p 188. See also Report on Supreme Court Practice and Procedure (1953) Cmnd 8878 (the Evershed Report), [3743].

24.4 There has been some improvement since these words were written, particularly in the light of updated rules of civil procedure in England and Australia. However, many of the old principles regarding the execution and enforcement of judgments and orders remain. The complexity is, in large part, due to variables that may exist at the execution stage. For example, how a successful plaintiff will seek to enforce a debt under a judgment against the defendant may depend upon the financial situation of the defendant. If the defendant has no funds available to pay the judgment, but has assets which can be liquidated, the plaintiff may obtain a writ of execution to levy that property (a writ of fieri facias). If the defendant is owed a sum of money from a third party, the plaintiff may obtain a garnishee order directing the third party to pay what is owed to the defendant to the plaintiff. As these examples demonstrate, a one-size-fits-all approach to enforcement would be clearly ineffective. Without an effective and robust mechanism of enforcement that is responsive to the circumstances of each case, the entire process of adjudication would be rendered futile.

24.5

Page 3 of 52 Chapter 24 Enforcement and Contempt Another reason for the complexity in the enforcement of judgments and orders arises from the differences of approach and nomenclature in each jurisdiction. Nonetheless, as will be evident from the discussion that follows below, the principles underpinning the process of execution are largely consistent across the jurisdictions.

24.6 As a matter of terminology, the party that has obtained a money judgment in its favour requiring compliance, is referred to as the judgment creditor, whereas the party that must give performance under a judgment is referred to as the judgment debtor. These terms are used in this chapter.4

Page 911

4

Note, though, that the use of these terms varies across different jurisdictions.

Stays of execution

24.7 As a matter of general principle, a judgment, especially a money judgment, is enforceable as soon as it has been given. A party, having succeeded at trial, is ‘entitled to the fruits of its judgment’ forthwith.5 However, there may be sound reasons to defer the enforcement of a judgment. For instance, the judgment debtor may wish to contest the judgment on appeal, or there may be an outstanding cross-claim or set-off claim yet to be determined.6 In such cases, the court may stay the execution of the judgment pending the determination of those outstanding matters.7 The power to grant a stay derives from the court’s inherent jurisdiction.8 Courts also have the power to grant a stay under the rules of procedure and legislation.9 It is said that the stay does not affect the rights of the judgment creditor apart from execution of the judgment.10 All rights of the judgment creditor are preserved during the stay, subject to any appeal. The judgment creditor will also have the benefit of post-judgment interest on any monetary amounts outstanding. However, the right of the judgment creditor to enforce the judgment cannot be overlooked, nor can it be said that the payment of interest by the judgment debtor cures all prejudice resulting from delays in enforcement. By this stage of the proceedings, the judgment creditor will have already expended significant resources in pursuing its case with the reasonable expectation that the process of adjudication will have resolved finally the issues between the parties. As Kirby P explained in Alexander v Cambridge Credit Corporation Ltd(rec apptd) ,11 in relation to the granting of a stay pending an appeal: [It] is clear that delay in the hearing of the appeal is injurious to both parties but, in the circumstances, specially injurious to the claimants. Having regard to the size of the verdict, and the defined assets available to satisfy it,the claimants cannot, subject to what appears below, be protected by orders for the payment of interest.

Page 912

5

The Annot Lyle [1886] 11 PD 114

at 116

; McBride v Sandland (No 2) (1918) 25 CLR 369 at 374

J; J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258 The judgment must, of course, be entered: see Chapter 23, 23.21 ff.

per Barton

per Derrington J.

Page 4 of 52 Chapter 24 Enforcement and Contempt 6

Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; [2007] NSWCA 57 at [140]

. See also Federal Court Rules 2011 (Cth) r 26.01: stay pending determination of a cross-claim.

7

McBride v Sandland (No 2) (1918) 25 CLR 369 at 375

per Barton J.

8

Ellis v Scott [1964] 2 All ER 987

9

High Court Rules 2004 (Cth) rr 8.07.1 and 8.07.2(b); Federal Court Rules 2011 (Cth) rr 36.08 (stay pending appeal) and 26.01 (stay of judgment pending determination of cross-claim). The Federal Court may also stay the execution of a judgment of another court being appealed to the Federal Court: Federal Court of Australia Act 1976 (Cth) s 29; Court Procedures Rules 2006 (ACT) r 2013; Uniform Civil Procedure Rules 2005 (NSW) rr 50.7 and 51.44; Supreme Court Rules (NT) rr 66.14 and 66.16; Uniform Civil Procedure Rules 1999 (Qld) r 800; Enforcement of Judgments Act 1991 (SA) s 17; Supreme Court Rules 2000 (Tas) r 887; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 66.16; Civil Judgments Enforcement Act 2004 (WA) ss 15 and 16.

. See Chapter 14, 14.25 ff on stays of proceedings generally.

10 Scope Data Systems v BDO Nelson Parkhill (2003) 199 ALR 56; [2003] NSWSC 137 Davis [2006] NSWSC 1055 at [25]

; Tatlers.com.au Pty Ltd v

per Barrett J.

11 (1985) 10 ACLR 42 (NSWCA) at 53.

24.8 The power to grant a stay is at the discretion of the court. The person applying for the stay generally bears the burden of justifying the imposition of the stay.12 The stay may be granted with conditions, such as that the judgment debtor pay part of the judgment or that security be provided.13 Traditionally, the discretion has only been exercised in special or exceptional circumstances.14 However, such a restrictive approach has fallen out of favour.15 In Alexander v Cambridge Credit Corporation Ltd (rec apptd) ,16 a decision of the New South Wales Court of Appeal, Kirby P considered that the test may not be appropriate in contemporary litigation. His Honour observed that the traditional test was formulated at a time when appeals were relatively novel and the appellate courts were more reluctant to interfere with a first instance judgment. By contrast, appeals are more common today and appellate judges consider themselves as being in just as good a position as the first instance judge to draw inferences from facts and reach a conclusion of their own.17 If this observation is correct, it follows that the court should take a less restrictive approach to the exercise of the discretion to grant a stay. Accordingly, courts will grant a stay where the applicant for the stay demonstrates ‘a reason or an appropriate case to warrant the exercise of the discretion’ in its favour.18 While the ‘special or exceptional circumstances’ test is still used in Victoria, it has been held that the range of circumstances which can be classified as special or exceptional are not to be limited.19 Furthermore, as will be seen below, the approach in Victoria in the determination of whether a stay should be granted pending an appeal is largely consistent with the approach taken in other jurisdictions.

12 Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [19]

; Gangemi v Osborne [2008] VSCA 221 at [13]

per Warren CJ and Neave JA. 13 Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 NSWCA 265 at [91]

; Goater v Commonwealth Bank of Australia [2014]

per Ward JA.

14 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (VSC, Ormiston J, 31 August 1991, unreported); Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 at 657 Food Systems Australasia Pty Ltd [2008] QCA 322 at [12]

per Young CJ; Cook’s Construction Pty Ltd v Stork per Keane JA; David Neate & Tara Farm Pty Ltd v

Thoroughbred International Marketing Pty Ltd [2012] VSCA 65 at [6]

per Mandie JA and Cavanough AJA.

15 Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 10 ACLR 42 (NSWCA) at 49–50 per Kirby P; Cudgegong Australia Pty Ltd v Transport for NSW (No 4) [2015] NSWLEC 195 at [10] Ammunition Pty Ltd v SafeWork NSW [2016] NSWSC 1075 at 694

per Pain J; Bronze Wing

per Garling J; Kazal v Thunder Studios Inc

Page 5 of 52 Chapter 24 Enforcement and Contempt (California) [2017] FCA 238 at [58] Ltd [2016] VSCA 19

per Katzmann J. Cf Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty

.

16 (1985) 10 ACLR 42 (NSWCA). 17 (1985) 10 ACLR 42 (NSWCA) at 49. 18 (1985) 10 ACLR 42 (NSWCA) at 50 per Kirby P; Williams v Chesterman [1992] QCA 198 Qd R 342; [1998] QCA 367

; Day v Humphrey [2017] QCA 104 at [5]

19 Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 International Marketing Pty Ltd [2012] VSCA 65 VSCA 129

; Crony v Nand [1999] 2

per Morrison JA.

; David Neate & Tara Farm Pty Ltd v Thoroughbred

; Nom De Plume Pty Ltd v Fingal Developments Pty Ltd [2015]

.

24.9 An appeal, or an application for leave to appeal, does not of itself give rise to an automatic stay.20 The court will exercise its discretion to grant a stay if there is

Page 913 a real risk that the appeal will be rendered nugatory (or ‘abortive’) or there will be some irremediable harm if a stay is not granted.21 Commonly, this will occur when, because of the financial position of the respondent to the appeal, there is no reasonable prospect of recovering moneys paid by the appellant pursuant to the judgment at first instance.22 While it is inappropriate for the court to speculate about the chances of the appellant’s success on appeal, there must at least be an arguable ground of appeal.23 If leave is required to appeal, and the appellant has been granted such leave, the court may proceed on the basis that there is an arguable case on appeal.24 Once the court has found that the appellant enjoys a reasonable prospect of success on appeal, the court’s attention should be limited to the issue of whether the judgment creditor will repay the judgment debt in the event that the judgment debtor succeeds on appeal.25 If there is a risk that the judgment debtor will dissipate its assets pending the determination of the appeal, it is likely that a court will refuse to grant a stay.26 Alternatively, the stay may be granted on the condition that the judgment debtor be required to provide some form of security or part payment.27 A stay is more likely to be granted if the judgment creditor will be unlikely to repay the judgment amount if an appeal is successful.28 In determining whether to grant a stay, the court should also consider whether the ‘real risk’ articulated by the judgment debtor about the judgment creditor’s ability to repay is overborne by any serious injustice to the judgment creditor, such as the delay in the hearing and determination of the appeal.29 The stay of execution may be made either by the court in which the judgment was made, or the court to which the appeal is made.30

20 Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 at 594

per White J; Landmark Operations Ltd v

J Tiver Nominees Pty Ltd [2009] SASC 14 at [24] per Sulan J. See also, for example, Uniform Civil Procedure Rules 2005 (NSW) rr 50.7 and 51.44(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.39. 21 Scarborough v Lew’s Junction Stores Pty Ltd [1963] VR 129

; Alexander v Cambridge Credit Corporation Ltd (recs

apptd) (1985) 10 ACLR 42 (NSWCA) at 51 per Kirby P; Day v Humphrey [2017] QCA 104 at [9] 22 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–3 also McBride v Sandland (No 2) (1918) 25 CLR 369 at 375 23 Andrews v John Fairfax & Sons [1979] 2 NSWLR 184 at 189 VSCA 122 at [27] Morrison JA.

per Morrison JA. per Dawson J. See

per Barton J. ; Maher v Commonwealth Bank of Australia [2008]

per Redlich and Dodds-Streeton JJA; Day v Humphrey [2017] QCA 104 at [8]–[10]

24 Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 10 ACLR 42 (NSWCA) at 51 per Kirby P.

per

Page 6 of 52 Chapter 24 Enforcement and Contempt 25 J C Scott Constructions v Mermaid Waters Tavern (No 1) [1983] 2 Qd R 243 at 248

per Derrington J.

26 Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 10 ACLR 42 (NSWCA) at 50 per Kirby P. 27 Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 ; Trlin v Marac Finance Australia Ltd [1985] NSWJB 70 (NSWCA); Alexander v Cambridge Credit Corporation Ltd (rec apptd) (1985) 10 ACLR 42 (NSWCA) at 50 per Kirby P. 28 Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 at 657

per Young CJ.

29 David Neate & Tara Farm Pty Ltd v Thoroughbred International Marketing Pty Ltd [2012] VSCA 65 at[51]

.

30 See Chapter 25, 25.77–25.80 in relation to stays of execution in appellate courts.

24.10 While a stay of execution will prevent the judgment creditor from utilising the court’s processes to enforce the judgment, it may not prevent the judgment creditor (depending on the scope of the stay) from utilising an alternative means of enforcement outside the framework of execution. For example, a stay does not, in and of itself, prevent the judgment creditor from issuing a statutory demand under s 459E of the Corporations

Page 914 Act 2001 (Cth) on a judgment debtor that is a corporation.31 This is because a judgment debt is a debt ‘due and payable’ within the meaning of s 495E despite it not being entered or executed.32 It is also because a stay does not suspend or otherwise affect the validity or the operation of the judgment.33 A failure by the judgment debtor to pay a debt under a statutory demand may result in the judgment debtor being wound up.34

31 In relation to individuals, the Official Receiver will not issue a bankruptcy notice if a judgment has been stayed: Bankruptcy Act 1966 (Cth) s 41(3)(b). 32 Pearl Bay Corp Pty Ltd v Lodur Pty Ltd [2001] WASC 315

.

33 Re Hughes; Ex parte Westpac Banking Corporation ; Scope Data Systems Pty Ltd v BDO Nelson Parkhill (2003) 199 ALR 56; [2003] NSWSC 137 at [10]–[16]

per Barrett J; Australian Beverage Distributors Pty Ltd v Evans and Tate

Premium Wines Pty Ltd (2007) 61 ACSR 441; [2007] NSWCA 57 at [26]–[41]

per Beazley JA.

34 See Corporations Act 2001 (Cth) s 459Q.

24.11 A court has the power to set aside a statutory demand under s 459J, particularly if a stay of execution has been granted.35 In the absence of a stay, the power is unlikely to be exercised merely due to an appeal pending,36 unless there are arguable grounds of appeal and, for example, steps by the judgment debtor to provide security or payment into court in respect of the judgment debt.37 The granting of a stay, especially by an appellate court, may satisfy the court that there are reasonable and arguable grounds of appeal, such that the statutory demand should be set aside.38

35 The power may be exercised where there is ‘some other reason’ (that is, a reason not set out in the Corporations Act 2001 (Cth)) why the statutory demand should be set aside: s 459J(1)(b). A judgment, despite an appeal, precludes an argument that there is a genuine dispute about there being a debt due and payable: Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454 (NSWSC).

Page 7 of 52 Chapter 24 Enforcement and Contempt 36 Midas Management Pty Ltd v Equator Communications Pty Ltd [2007] NSWSC 759 at [29] 37 Barclays Australia (Finance) Ltd v Mike Gaffikin Marine Pty Ltd (1996) 21 ACSR 235 v Allardyce Lumber Co Ltd [2011] NSWSC 1031 at [9]

; Quarter Enterprises Pty Ltd

per White J.

38 Meehan v Glazier Holdings Pty Ltd (2005) 53 ACSR 229; [2005] NSWCA 24 at [51] Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9 at [62] [2014] NSWSC 140 at [17]–[21]

per Hammerschlag J.

per Santow J; Cranney Farm

per Ward J; Re A.C.E.S. Sogutlu Holdings Pty Ltd

per Brereton J.

Execution High Court and Federal Court

24.12 In the High Court and the Federal Court, a person in whose favour a judgment is made is entitled to the same remedies for enforcement of the judgment in a state or territory as are allowed in like cases by the laws of that state or territory to whose favour a judgment of the Supreme Court of that state or territory is given.39 The rules of the court may, however, vary or regulate the process of execution in these courts.40 The powers of the High Court and the Federal Court extend to making orders for the examination of judgment debtors, in the same manner as a state or territory Supreme Court.41

Page 915

39 Judiciary Act 1903 (Cth) s 77M(1); Federal Court of Australia Act 1976 (Cth) s 53(1); Federal Court Rules 2011 (Cth) r 41.10. 40 Judiciary Act 1903 (Cth) s 77M(1); Federal Court of Australia Act 1976 (Cth) s 53(1); Re Tony Basile; Ex parte Eric John Ancich (1985) 8 FCR 287; [1985] FCA 341 at [6]

per Pincus J.

41 Re Terence James Guthrie v Michael Robertson [1987] FCA 96.

Time constraints and ‘stale’ judgments

24.13 A judgment creditor has a limited amount of time in which to execute a judgment, after which the judgment becomes ‘stale’. Originally, a judgment was deemed to have been satisfied a year and a day after judgment was given whether or not the judgment creditor took any steps to execute judgment, such as by seeking the issue of a writ of execution. The rule was modified by the Statute of Westminster (13 Edw 1 c 45), under which a writ of scire facias could be served by the judgment creditor on the judgment debtor requiring the debtor to provide reasons why the judgment could not be executed after one year and one day had passed.42 After the enactment in England of the Common Law Procedure Act 1852 (UK), a judgment creditor could execute judgment within six years, after which time the judgment creditor would require leave of the court.43

42 Underhill v Devereux (1669) 2 WMS Saund 71 (85 ER 715 at 721). 43 Common Law Procedure Act 1852 (UK) ss 128–131.

Page 8 of 52 Chapter 24 Enforcement and Contempt

24.14 Today, in all jurisdictions, except in New South Wales, leave is required for a judgment to be executed after six years from the date of judgment.44 In New South Wales, leave is required after 12 years from the date of judgment.45 In the Federal Court, whether leave is required will depend on the state or territory in which the judgment was made, given that execution is governed by the rules of the Supreme Court of that state or territory.46 The court has an unfettered discretion in deciding whether or not to grant leave.47 It has been held that it would be ‘prudent’ for the judgment creditor to provide an explanation for the delay, although the judgment debtor will carry the burden of establishing why the judgment creditor should not be granted leave.48 This is consistent with the rationale for the leave requirement, namely to give the judgment debtor an opportunity to provide reasons to the court why the judgment should not be enforced against the debtor.49

44 High Court Rules 2004 r 10.01; Court Procedures Rules 2006 (ACT) r 2012(1)(a); Supreme Court Rules (NT) r 68.02(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 799(2); Supreme Court Civil Rules 2006 (SA) r 316(6) (in respect of actions commenced on or after 4 September 2006); Supreme Court Rules 2000 (Tas) r 896; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 68.02(1)(a); Civil Judgments Enforcement Act 2004 (WA) s 13(1)(a) (note: a judgment may not be enforced after 12 years: s 12). 45 Civil Procedure Act 2005 (NSW) s 134. 46 See 24.12. 47 Hulbert and Crowe v Cathcart [1896] AC 470 v Hine [1969] QWN 38

(HL); WT Lamb & Sons v Rider [1948] 2 KB 331

; Arnold v Martyr [1974] Qd R 206

(EWCA Civ); Hine

.

48 World Square Pty Ltd v Taylor [1990] 1 Qd R 582 at 589 per Lee J. 49 Litherland v Litherland and Randage [1963] QWN 24

.

24.15 A ‘stale’ judgment is not time-barred in the strict sense.50 Limitation periods in relation to an ‘action on a judgment’ do not apply to the mere execution of a judgment.51 This is because the process of execution is not a new cause of action of

Page 916 itself, but the ‘machinery which the court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders’.52

50 Although in Western Australia, a judgment may not be enforced by the court after 12 years: see Civil Judgments Enforcement Act 2004 (WA) s 12. 51 for example, Limitation Act 1985 (ACT) s 14(1); Limitation Act 1969 (NSW) s 17(1); Limitation of Actions Act 1974 (Qld) s 10(4). See Chapter 26, 26.7 ff in relation to limitation periods generally. 52 WT Lamb & Sons v Rider [1948] 2 KB 331 [2005] FamCA 906

24.16

.

(EWCiv) at 337 per Scott LJ; Barrak v Barakat (2005) 34 Fam LR 273;

Page 9 of 52 Chapter 24 Enforcement and Contempt Under the common law, once a writ of execution had been issued by the court, it remained in force until it was executed completely.53 However, under the modern rules of civil procedure, a writ of execution is valid usually for one year from the date it is issued.54 A judgment creditor may apply to renew or extend the period of execution under a writ. The judgment creditor will bear the burden of establishing why the writ should be renewed or extended.55

53 Jordan v Binckes (1849) 13 QB 757

at 760

; 116 ER 1453

per Denman CJ.

54 Court Procedures Rules 2006 (ACT) r 2052(2); Uniform Civil Procedure Rules 2005 (NSW) r 39.20; Supreme Court Rules (NT) r 68.05(1); Civil Proceedings Act 2011 (Qld) s 91; Supreme Court Civil Rules 2006 (SA) r 316(8); Supreme Court Rules 2000 (Tas) r 901(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 68.05(1); Civil Judgments Enforcement Act 2004 (WA) s 102(1). 55 Finnegan (Timber) Pty Ltd v Beechey [1983] 2 VR 215 . An order to renewal an expired writ cannot be made in the Northern Territory and in Victoria: Supreme Court Rules (NT) r 68.5(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 68 r 5(2).

Execution by and against the Crown

24.17 In every jurisdiction, legislation exists for the enforcement of a judgment for and against the Crown (that is, the Crown in the right of the Commonwealth of Australia, a state or a territory).56 Where the Crown obtains judgment in its favour, it may enforce the judgment against the judgment debtor using the same process as if it were any other person.57 Under s 65 of the Judiciary Act 1903 (Cth), no execution or attachment may be issued against the property or revenue of the Commonwealth or a state in respect of a judgment. Instead, the registrar may issue a certificate of judgment which certifies the amount owing by the Commonwealth or the state to the judgment creditor. On receipt of the certificate, the judgment creditor may require the Minister for Finance or the Treasurer in the relevant jurisdiction to satisfy the judgment out of money legally available.58 Similar legislation exists in each state and territory in relation to the satisfaction by the Crown of a judgment.59 In Queensland, if payment under a judgment is not duly made to a judgment creditor, execution may be

Page 917 had and levied by distress on any property vested in the Crown in the right of the State of Queensland other than property used, held, occupied or enjoyed or intended so to be by the Governor for the time being, certain parliamentary buildings, the Supreme Court houses and certain other courthouses, and corrective services facilities.60

56 Judiciary Act 1903 (Cth) Pt IX; Court Procedures Act 2004 (ACT) Pt 4; Crown Proceedings Act 1988 (NSW); Crown Proceedings Act 1993 (NT); Crown Proceedings Act 1980 (Qld); Crown Proceedings 1992 (SA);Crown Proceedings Act 1993 (Tas); Crown Proceedings Act 1958 (Vic); Crown Suits Act 1947 (WA). 57 Judiciary Act 1903 (Cth) s 67; Court Procedures Act 2004 (ACT) s 31; Crown Proceedings Act 1993 (NT) s 12; Crown Proceedings Act 1980 (Qld) s 9(2); Crown Proceedings 1992 (SA) s 11; Crown Proceedings Act 1993 (Tas) s 12; Crown Proceedings Act 1958 (Vic) ss 14–16;Crown Suits Act 1947 (WA) s 9. There is no equivalent provision in New South Wales. 58 Judiciary Act 1903 (Cth) s 66. 59 Court Procedures Act 2004 (ACT) s 29; Crown Proceedings Act 1988 (NSW) s 7; Crown Proceedings Act 1993 (NT) s 11; Crown Proceedings Act 1980 (Qld) s 11; Crown Proceedings 1992 (SA) s 10; Crown Proceedings Act 1993 (Tas) s 11; Crown Proceedings Act 1958 (Vic) s 26; Crown Suits Act 1947 (WA) s 10. 60 Crown Proceedings Act 1980 (Qld) s 11(2).

Execution against a partnership

Page 10 of 52 Chapter 24 Enforcement and Contempt

24.18 A judgment may be executed against the property of a partnership only if the relevant judgment is made against the partnership.61 Accordingly, a judgment may not be executed against partnership property in respect of a judgment made against a partner in the partner’s personal capacity. Whether property is partnership property will depend on the conduct of the parties and the surrounding circumstances.62 It has been held that the partnership property is that property which is held and applied by partners exclusively for the purposes of the partnership.63

61 Court Procedures Rules 2006 (ACT) r 2007; Partnership Act 1892 (NSW) s 23(1); Partnership Act 1997 (NT) s 27(1); Partnership Act 1891 (Qld) s 26; Partnership Act 1891 (SA) s 23; Partnership Act 1891 (Tas) s 28;Partnership Act 1958 (Vic) s 27(1); Partnership Act 1895 (WA) s 28. 62 Kelly v Kelly (1989) 50 SASR 477

.

63 Sobey v Sobey [2014] VSC 373 at [103]

per Almond J.

Enforcement of money judgments

24.19 There are a number of methods that a judgment creditor may adopt in order to secure and receive payment of a debt due under a money judgment. Such methods include: (a) a writ for the seizure and sale of assets (what was known under the common law as a writ of fieri facias); (b) an instalment order; (c) a garnishee order; (d) a charging order; (e) a stop order and stop notice; and (f)

the appointment of a receiver,

each of which will be considered in further detail below. A judgment creditor may (except where legislation or a rule provides otherwise) use any method of enforcement that is available. Furthermore, subject to the rules of the relevant jurisdiction,the judgment creditor may use more than one method of enforcement, either at the same time or one after another.

Examination of judgment debtors

24.20 A judgment creditor might be wholly ignorant of the judgment debtor’s means. It may therefore lack the information necessary to decide which method of enforcement would be the most appropriate. It does not serve the overriding objective

Page 918 for a judgment creditor to utilise, on a ‘hit-and-miss’ basis, the court’s limited resources on enforcement methods that are futile due to the state of the judgment debtor’s financial affairs. It is therefore essential to any efficient and effective system of enforcement that judgment creditors should have the means to obtain information from judgment debtors about their means and their assets prior to the selection of an enforcement method. In each jurisdiction,

Page 11 of 52 Chapter 24 Enforcement and Contempt procedures exist for the judgment creditor to require the judgment debtor to provide information regarding how the judgment debtor will satisfy the judgment debt.64 In some jurisdictions, this process is referred to as discovery in aid of enforcement.65

64 Court Procedures Rules 2006 (ACT) Pt 2.18 Div 2.18.3; Uniform Civil Procedure Rules 2005 (NSW) Pt 38; Supreme Court Rules (NT) O 67; Uniform Civil Procedure Rules 1999 (Qld) Ch 19 Pt 2; Enforcement of Judgments Act 1991 (SA) s 4; Supreme Court Rules 2000 (Tas) Pt 35 Div 2; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 67; Civil Judgments Enforcement Act 2004 (WA) s 29. 65 Northern Territory, Queensland, Tasmania and Victoria.

24.21 Examination of the judgment debtor may be carried out by way of oral examination under oath before a judge, registrar or some other authorised court official.66 The person being examined may be required to produce at the hearing documents concerning the debtor’s financial position for the inspection by the judgment creditor. If the judgment debtor is a corporation, the examination may be of an officer of the corporation.67 The judgment creditor is entitled to examine the judgment debtor as to the means by which it will satisfy the judgment debt. Such an inquiry is not limited to assets presently in the possession of the judgment debtor. In McCormack v National Australian Bank Ltd ,68 the Full Federal Court held: We would not read the team ‘means’ as limited to pecuniary resources presently, in the sense of instantly or currently available. … The term ‘means’ of its very nature denotes not only existing property or assets but also resources or sources whereby assets or property may become available for satisfaction of the judgment debt. But, nevertheless, the rule allows only an examination as to the property and means which the judgment debtor has to satisfy the judgment.

66 Court Procedures Rules 2006 (ACT) r 2103; Uniform Civil Procedure Rules 2005 (NSW) r 38.2; Supreme Court Rules (NT) r 67.2; Uniform Civil Procedure Rules 1999 (Qld) r 813; Enforcement of Judgments Act 1991 (SA) s 4; Supreme Court Rules 2000 (Tas) r 889; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 67.02; Civil Judgments Enforcement Act 2004 (WA) s 29. 67 for example, Court Procedures Rules 2006 (ACT) r 2104(f); Uniform Civil Procedure Rules 2005 (NSW) r 38.7; Supreme Court Rules (NT) r 67.3; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 67.03. 68 (1992) 35 FCR 303 at 306

.

24.22 The Full Court’s decision in McCormack is consistent with the dicta of Sir George Jessel MR in Republic of Costa Rica v Strousberg 69 that the questioning of the judgment creditor may include any question about what debts are owing to the judgment debtor. In New South Wales, the position under the common law is substantially restated under s 108(5) of the Civil Procedure Act 2005 (NSW), which

Page 919 allows the judgment debtor to be examined as to any material questions. Such questions include:70 (a) to the extent to which [the judgment] requires the person bound by it to pay money: (i)

questions as to whether any and, if so, what debts are owing to that person, and

Page 12 of 52 Chapter 24 Enforcement and Contempt (ii) questions as to whether that person has any and, if so, what other property or other means of satisfying the judgment or order, and (b) to the extent to which it does not require the person bound by it to pay money, such questions concerning or in aid of the enforcement or satisfaction of the judgment or order as may be specified in the order under this section.

69 (1880) 16 QBD 8

at 12

.

70 Civil Procedure Act 2005 (NSW) s 108(5). In Austress Freyssinet v Kowalski [2007]NSWSC 1105 , Austin J held at [22] that an examination under s 108 could be available in respect of non-monetary judgments, including injunctions.

24.23 It is a contempt of court for the judgment debtor (or company officer) to fail to comply with an order to attend court for an oral examination.71 In New South Wales, the court may issue a warrant for the arrest of the judgment debtor (or company officer), if he or she fails to comply with the order for examination, in order to bring the person before the court for examination.72

71 Commercial Banking Co of Sydney Ltd v Rawson [1983] 1 Qd R 487

.

72 Uniform Civil Procedure Rules 2005 (NSW) r 38.6. See s 97 of the Civil Procedure Act 2005 (NSW) in relation to arrest warrants.

24.24 In some jurisdictions, the need for oral examination may be obviated if the judgment debtor provides a written account of its financial affairs in the form required by the relevant court rules. In the Australian Capital Territory, a judgment debtor (or ‘enforcement debtor’) is required to file a sworn statement of its financial position eight days before the date set for oral examination.73 If the judgment creditor (or ‘enforcement creditor’) is satisfied that the information in the statement is sufficient, it may give notice to the judgment debtor and court that the judgment debtor is no longer required for examination.74 In New South Wales, a judgment creditor may serve on the judgment debtor an examination notice requiring the judgment debtor to provide answers to specified material questions or to produce documents relevant to material questions.75 The judgment debtor has at least 28 days in which to provide responses under oath to the questions.76 In New South Wales courts other than the Supreme Court, the judgment creditor may only apply for an order for oral examination if the judgment debtor has failed to provide sufficient answers to the questions in the notice, or failed to produce sufficient documents for inspection, as to any material questions.77

Page 920

73 Court Procedures Rules 2006 (ACT) r 2106(1). 74 Court Procedures Rules 2006 (ACT) r 2106(4). 75 Uniform Civil Procedure Rules 2005 (NSW) r 38.1.

Page 13 of 52 Chapter 24 Enforcement and Contempt 76 The judgment creditor may specify the timeframe in which the judgment creditor is to provide a response. This time must not be less than 28 days: Uniform Civil Procedure Rules 2005 (NSW) r 38.1(2). 77 Uniform Civil Procedure Rules 2005 (NSW) r 38.2(b).

Writ for the seizure and sale of assets

24.25 A money judgment may be enforced by execution on the property of the judgment debtor. The process consists of authorising the appropriate court officer (usually the sheriff of the jurisdiction)78 to seize sufficient goods or real property of the judgment debtor in order to sell them and use the proceeds to satisfy the judgment debt and the cost of enforcement. Under the common law, the writ was termed a writ of fieri facias (or ‘fi fa’). With the exception of Tasmania, in which the traditional name has been kept,79 the writ is now given different names across Australia, namely: (a) a seizure and sale order in the Australian Capital Territory;80 (b) a writ for the levy of property in New South Wales;81 (c) a warrant of seizure and sale in the Northern Territory and Victoria;82 (d) an enforcement warrant authorising the sale and seizure of property in Queensland;83 (e) a warrant of sale in South Australia;84 and (f)

a property (seizure and sale) order in Western Australia.85

78 In some jurisdictions, the sheriff is referred to as an enforcement officer or a marshall. In this chapter, the term sheriff is used. 79 Supreme Court Rules 2000 (Tas) Pt 35 Div 4. 80 Court Procedures Rules 2006 (ACT) r 2200. 81 Civil Procedure Act 2005 (NSW) Pt 8 Div 2. 82 Supreme Court Rules (NT) O 67; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 69. 83 Uniform Civil Procedure Rules 1999 (Qld) Ch 19 Pt 3. 84 Enforcement of Civil Judgments Act 1991 (SA) s 7. 85 Civil Judgments Enforcement Act 2004 (WA) s 59.

24.26 Once a writ of execution is delivered to the sheriff, the sheriff must execute the judgment in accordance with the terms of the writ, and account to the judgment creditor in respect of the property seized and sold under the writ. Where there are multiple writs of execution issued against the one judgment debtor, priority is given according to the order in which the writs are received by the sheriff.86 Following the completion of execution, or attempted execution, the sheriff must provide a written statement in response to the writ (called a ‘return’) which outlines what action has been taken in relation to the writ and the extent to which the writ has been satisfied.87 The sheriff may be liable for any loss suffered by the judgment creditor in relation to a breach by the sheriff of its duties.88 Provision is made in the legislation and court rules for the sheriff to charge a fee and recover certain expenses in respect of the execution of a writ.89 These may be deducted from the proceeds of the sale of the property.

Page 921

Page 14 of 52 Chapter 24 Enforcement and Contempt

86 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 39.4; Slack v Winder (1874) 5 AJR 72 (VSC). 87 Supreme Court Act 1933 (ACT) s 50(b); Uniform Civil Procedure Rules 2005 (NSW) r 39.51; Sheriff Act 1963 (NT) s 7(1)(a);Uniform Civil Procedure Rules 1999 (Qld) rr 889 and 910; Sheriff’s Act 1978 (SA) s 8 (as part of the duties of the sheriff); Supreme Court Rules 2000 (Tas) rr 43–45 and 944; Sheriff Act 2009(Vic) s 13; Civil Judgments Enforcement Act 2004 (WA) s 117 (as part of the duties of the sheriff). 88 Hobson v Thelluson (1867) LR 2 QB 642

.

89 See, for example, Court Procedures Rules 2006 (ACT) r 2004; Uniform Civil Procedure Rules 2005 (NSW) r 39.15(1); Sheriff Act 2009 (Vic) s 32(1).

Seizure

24.27 To effect a writ, the sheriff is empowered to enter the dwelling or other premises occupied by the judgment debtor in order to seize assets of the judgment debtor. The writ is binding on the judgment debtor’s property at the time that it is delivered to the sheriff, whether or not the judgment debtor has notice of the delivery.90 The seizure of property is purely for the purpose of sale, which is in turn to satisfy the judgment debt. The sheriff must not deliver the property to the judgment creditor, nor does the judgment creditor have any entitlement to possess the judgment debtor’s property.91

90 See, for example, Civil Procedure Act 2005 (NSW) s 109(1) in relation to goods, and s 112(1) in relation to land. 91 Other writs of execution exist for the possession of land (see 24.69), and the delivery of goods (see 24.71). These apply only where judgment provides that the judgment creditor is entitled to have possession of land or goods.

24.28 Under the common law, the power of the sheriff to enter premises does not extend to forcible entry. However, court rules and legislation may allow for the use of force in certain circumstances. For example, in the Australian Capital Territory,if a sheriff (called an ‘enforcement officer’) is refused entry to the judgment debtor’s premises after the enforcement officer has told, or has made reasonable attempts to tell, the occupier about the procedure for execution of the judgment, the officer may obtain an order from the court allowing the officer to use as much force as is reasonably necessary to obtain entry into the premises.92 In New South Wales, s 7A(1) of the Sheriff Act 2005 (NSW) provides that a sheriff’s officer executing a writ of levy in relation to land may, among other things, use such force as is reasonably necessary to enforce the writ or warrant.93 Whatever power a sheriff has in relation to entry onto a judgment debtor’s premises, a failure to grant the sheriff entry to enforce a writ may amount to a contempt of court.

92 Court Procedures Rules 2006 (ACT) r 2203. Similar orders made in New South Wales under s 135(2)(a) of the Civil Procedure Act 2005 (NSW) after the court is satisfied of the matters in r 39.52 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that an order may not be made in respect of any goods unless the court is satisfied (a) that while attempting to seize the goods, the sheriff has been refused entry to the premises where they are believed to be, or (b) that there are special circumstances that justify the making of such an order: see Khanna v Sabi Foods International (Aust) Pty Ltd [2017] NSWSC 573

.

93 Under s 7A(3) of the Sheriff Act 2005 (NSW), in most cases the occupier must have been given at least 30 days’ notice of the requirement to deliver up possession of the land. In Kingelty v Stockley [2017] NSWSC 671

, Bellew J at [12]

Page 15 of 52 Chapter 24 Enforcement and Contempt held that the rationale for the requirement was to give the occupier adequate time before the writ is executed to vacate the land.

24.29 The property which may be seized by the sheriff must be owned (either wholly or jointly) by the judgment debtor.94 Such property may include money95

Page 922 and property in which the judgment debtor has an equitable interest.96 Generally, property held by the judgment debtor as a trustee for a third party may not be seized.97 It is not necessary for the sheriff to take physical possession of property in order for it to be seized. Rather, it is sufficient that the sheriff indicates clearly that a good or item of property is seized.98 In addition, the seizure may take place by way of ‘walking possession’, whereby the sheriff obtains the judgment debtor’s agreement not to remove an item of property that has been seized.99 In New South Wales, the sheriff may appoint a custodian (which may be the judgment debtor) in relation to goods that are seized pending their sale.100 Once appointed, a custodian must not deal with, damage or hide the goods unless otherwise authorised by the court or the sheriff.101

94 Any disputes regarding whether the judgment debtor owns particular property in question may be dealt with by way of an interpleader proceeding: Federal Court Rules 2011 (Cth) Pt 18; Court Procedures Rules 2006 (ACT) Pt 2.19; Uniform Civil Procedure Rules 2005 (NSW) Pt 43; Supreme Court Rules (NT) O 12; Uniform Civil Procedure Rules 1999 (Qld) Ch 21; Supreme Court Civil Rules 2006 (SA) Pt 4; Supreme Court Rules 2000 (Tas) Pt 7 Div 16; Supreme Court (General Civil Procedure)Rules 2015 (Vic) O 12; Rules of the Supreme Court 1971 (WA) O 17. 95 for example, Court Procedures Rules 2006 (ACT) r 2200 (all property, except property exempted by the rules, may be seized); Civil Procedure Act 2006 (NSW) s 106(2)(d). 96 Simpson v Forrester (1973) 132 CLR 499

.

97 Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 at [55] 98 Gladstone v Padwick (1871) LR 6 Ex 203 99 Watson v Murray & Co [1955] 2 QB 1

at 212

per Barrett JA.

per Bramwell B.

.

100 Civil Procedure Act 2005 (NSW) s 132(1). 101 Civil Procedure Act 2005 (NSW) s 132(2). The custodian commits an offence if it breaches its obligations as a custodian.

24.30 A writ of execution binds a judgment debtor’s goods at the time of delivery to the sheriff.102 However, it does not affect property which has been purchased by a bona fide purchaser that does not have notice of the writ being delivered to the sheriff and that the writ remains unexecuted.103

102 Sale of Goods Act 1954 (ACT) s 30(1); Civil Procedure Act 2005 (NSW) s 109(1); Sale of Goods Act 1972 (NT) s 29(1); Sale of Goods Act 1896 (Qld) s 28(1); Sale of Goods Act 1895 (SA) s 26; Sale of Goods Act 1896 (Tas) s 31; Goods Act 1958 (Vic) s 82; Civil Judgments Enforcement Act 2004 (WA) s 74. 103 Ruby Wells NL v Bailiff of the District Court (1990) 2 WAR 448 ; Sale of Goods Act 1954 (ACT) s 30(2); Civil Procedure Act 2005 (NSW) s 109(2) in respect of goods, and s 112(2) in respect of land; Sale of Goods Act 1972 (NT)

Page 16 of 52 Chapter 24 Enforcement and Contempt s 29(2); Sale of Goods Act 1896 (Qld) s 28(1A); Sale of Goods Act 1895 (SA) s 26; Sale of Goods Act 1896 (Tas) s 31; Goods Act 1958 (Vic) s 82; Civil Judgments Enforcement Act 2004 (WA) s 74(4).

Restrictions on property seized

24.31 There are restrictions in some jurisdictions as to what property may be seized and sold pursuant to a writ of execution. These restrictions prevent the seizure of items that would cause the judgment debtors undue hardship. It must be remembered that a writ of execution is not intended to punish the judgment debtor. The inconvenience caused to the judgment debtor must be limited to ensuring that the judgment creditor receives that to which it is entitled under a judgment. In New South Wales,the sheriff is not able to seize: (a) any clothing; (b) bedroom or kitchen furniture; or (c) any tools of trade (including vehicles, plant, equipment and reference books) not exceeding, in aggregate, the sum prescribed by the Uniform Civil Procedure Rules 2005 (NSW),104

Page 923 used by the judgment debtor or by any member of his or her family.105 Similar provisions exist in Western Australia.106

104 At present, the sum prescribed by the rules is $2000: Uniform Civil Procedure Rules 2005 (NSW) r 39.46. 105 Civil Procedure Act 2005 (NSW) s 106(3). 106 See Civil Judgments Enforcement Act 2004 (WA) s 76 and Civil Judgments Enforcement Regulations 2005 (WA) reg 35.

24.32 In South Australia and Victoria, property that could not be taken if the judgment debtor was a bankrupt is not able to be seized under a warrant of execution.107 Section 116(2) of the Bankruptcy Act 1966 (Cth) describes the property which is not divisible amongst creditors of the bankrupt and is therefore not able to be taken. It includes personal property of the bankrupt that is for the use of the bankrupt to earn an income by personal exertion and does not have a total value greater than the amount prescribed by the Bankruptcy Regulations 1996 (Cth).108 It also includes items such as household furniture, beds for members of the household, a television set, and certain kitchen appliances.109

107 Enforcement of Civil Judgments 1991 (SA) s 7(2); Supreme Court Act 1984 (Vic) s 42(1). 108 See Bankruptcy Regulations 1996 (Cth) reg 6.03B. 109 See Bankruptcy Regulations 1996 (Cth) reg 6.03.

Sale

24.33

Page 17 of 52 Chapter 24 Enforcement and Contempt Once the sheriff has seized the property of the judgment debtor, the sheriff must sell the property as early as practicable to avoid the value of the property being eroded.110 In each jurisdiction, the rules governing the sale of property vary.111 Generally, property is sold by way of public auction to the highest bidder, although the sheriff may sell property by private treaty provided the property is sold at a reasonable price or a fair market value.112 In New South Wales, the sheriff must not sell property by public auction for a price substantially below its approximate market value.113

110 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 39.5; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 69.05(1)(a). 111 for example, Court Procedures Rules 2006 (ACT) r 2216; Uniform Civil Procedure Rules 2005 (NSW) rr 39.5–39.15; Uniform Civil Procedure Rules 1999 (Qld) rr 832–837; Civil Judgments Enforcement Act 2004 (WA) ss 66–70. 112 See, for example, Court Procedures Rules 2006 (ACT) r 2216; Uniform Civil Procedure Rules 2005 (NSW) rr 39.7(1) and 39.13; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 69.05. 113 Uniform Civil Procedure Rules 2005 (NSW) r 39.7(2). Rule 39.10 requires the sheriff to determine the approximate market value before an auction is held. Cf Anderson v Liddell (1968) 117 CLR 36 is not obliged to obtain a valuation.

, where it was held that the sheriff

24.34 Where it appears that the value of the judgment debtor’s property exceeds the judgment debt, the sheriff must not sell any more of the property than is sufficient to satisfy the judgment debt.114 As a general principle, property is sold in the order that best achieves the satisfaction of the judgment debt while minimising hardship on the judgment debtor.115 Unless the judgment debtor so requests, land belonging to the

Page 924 judgment debtor is liable to be sold only after other property has been sold.116 There are exceptions to this rule. For instance, in New South Wales, the sheriff may sell land ahead of other property if the sheriff is satisfied that to do so would minimise the hardship to the judgment debtor or some other person (such as the judgment debtor’s dependants). Thus if the judgment debt is greater than the aggregate value of the judgment debtor’s personal property, but less than the value of the judgment debtor’s real property, there may be less hardship on the judgment debtor by the sheriff selling the debtor’s land. Otherwise the judgment debtor would be liable to have both its personal and real property sold. If the proceeds of sale exceed the judgment debt (including any interest) and the fees and expenses of the sheriff, the judgment debtor is entitled to the remaining amounts of the proceeds.117

114 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 39.6(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 69.04(1). 115 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 39.6(2). 116 See, for example, Court Procedures Rules 2006 (ACT) r 2212(b); Uniform Civil Procedure Rules 2005 (NSW) r 39.6(3); Supreme Court(General Civil Procedure) Rules 2015 (Vic) r 69.04(3); Civil Judgments Enforcement Act 2004 (WA) s 64. 117 See, for example, Uniform Civil Procedure Rules 2005 (NSW) r 39.15.

24.35 Where a writ is to be enforced against real property held by the judgment debtor under Torrens title, the judgment creditor may, according to the relevant state or territory legislation, record the writ on the Torrens register.118 The legislation in each jurisdiction sets out the requirements and effect of recording the writ. The regime in New South

Page 18 of 52 Chapter 24 Enforcement and Contempt Wales119 was considered by the High Court in Black v Garnock .120 In that case, the judgment debtor and a third party purchaser entered into a land sale contract under which the judgment debtor agreed to sell its land to the purchaser. Shortly before the settlement date of the contract, the judgment creditor had its writ of execution recorded in relation to the judgment debtor’s land. The purchaser was informed of the writ before settlement. Gummow and Hanye JJ held that the judgment creditor took priority over the purchaser. Their Honours said:121 [T]he bare fact that the purchasers made their contract of sale with the judgment debtor before the writ was recorded did not constitute any sufficient reason to intercept what otherwise would have been the operation of the [Real Property Act]. And, as noted earlier, it was the bare fact of making the contract before the writ was recorded that was treated as determinative by the majority in the Court of Appeal. Neither in the Court of Appeal nor on appeal to this court did the purchasers seek to make some alternative case. In particular, it was not said that the judgment creditors’ procuring of the recording of the writ was unconscientious and it was not said that the purchasers’ completion of their contract with the judgment debtor put them in any better position than their making of the contract …

Page 925

118 Land Titles Act 1925 (ACT) s 170; Real Property Act 1900 (NSW) s 105; Land Title Act 2000 (NT) s 132; Land Title Act 1994 (Qld) s 116;Real Property Act 1886 (SA) s 105; Land Titles Act 1980 (Tas) s 61; Transfer of Land Act 1958 (Qld) s 52; Transfer of Land Act 1893 (WA) s 133. 119 Real Property Act 1900 (NSW) ss 105–105B. 120 (2007) 230 CLR 438; [2007] HCA 31

.

121 (2007) 230 CLR 438; [2007] HCA 31 at [50] (Callinan J agreeing). Gleeson CJ and Crennan J dissented.

Priority of writs

24.36 Where the sheriff receives multiple writs against one judgment debtor, priority is given according to the time at which each writ is delivered to the sheriff.122 In this respect, the date of judgment is immaterial. If a writ is subsequently suspended, it may lose priority unless the writ is reinstated.123 Under the common law, a writ issued in favour of the Crown had priority over all other writs, regardless of the time at which the writ was delivered to the sheriff.124 However, in the light of legislation to the effect that the Crown is to be treated the same as an individual,125 there is no longer a basis for this rule.

122 Court Procedures Rules 2006 (ACT) r 2059(4); Uniform Civil Procedure Rules 2005 (NSW) r 39.4; Supreme Court Rules (NT) r 67.2; Uniform Civil Procedure Rules 1999 (Qld) r 813; Enforcement of Judgments Act 1991 (SA) s 4; Supreme Court Rules 2000 (Tas) r 889; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 67.02; Civil Judgments Enforcement Act 2004 (WA) s 29. 123 Bankers Trust Co v Galadari [1987] 1 QB 222 124 Giles v Grover (1832) 9 Bing 128; 131 ER 563 125 for example, Judiciary Act 1903 (Cth) s 67.

Instalment order

24.37

. .

Page 19 of 52 Chapter 24 Enforcement and Contempt In each jurisdiction, except in the Northern Territory,126 the court may make orders for the payment of a judgment by way of instalments. This method of enforcement may be attractive to a judgment debtor as it affords the debtor time to pay off the judgment debt in smaller sums over a period of time.It may also be an attractive option to a judgment creditor in circumstances where there is a significant risk that the judgment debtor may become insolvent if it was required to pay the full judgment sum immediately.

126 Note though that the Local Court of the Northern Territory has the legislative power to make an instalment order: Local Court (Civil Procedure) Act (NT) s 27.

24.38 Subject to the law of each jurisdiction, an instalment order can be made on a judgment debtor that is a corporation. The making of such an order would, if the judgment debtor was in financial distress, potentially prevent it from being rendered insolvent, much in the same way that it would for an individual. However, the considerations of whether such an order should be made on a corporation as opposed to an individual vary. In Chint Australasia Pty Ltd v Cosmoluce Pty Ltd ,127 Einstein J held that a ‘particularly special circumstance would have to be shown to deny a party to major commercial litigation, its entitlement to enforce a court order’ in favour of an instalment order. His Honour noted that companies are placed into liquidation regularly and often because of contested litigation. Therefore, the mere risk of insolvency is not of itself sufficient to justify the grant of an instalment order in respect of a corporation.

127 [2008] NSWSC 1054 at [15]

.

Australian Capital Territory

24.39 In the Australian Capital Territory, an application for an instalment order may be made either by the judgment creditor (the enforcement creditor), or the judgment debtor (the enforcement debtor).128 The court may also make an instalment

Page 926 order if the parties have made an agreement under which the judgment debtor agrees to pay the judgment sum in instalments.129 An application by the judgment debtor must be supported by an affidavit which must cover, among other things, the judgment debtor’s financial circumstances.130 In considering whether to make the order, the court may have regard to matters such as whether the judgment debtor is employed, its means of satisfying the judgment debt, whether the debt will be satisfied within a reasonable time, and any other liabilities of the judgment debtor.131 While an application is pending, and if the instalment order is subsequently made, no further enforcement action may be taken by the judgment creditor.132 The order may be varied, suspended or set aside by the court.133 It will cease to have effect if the judgment debtor fails to make two consecutive payments in accordance with the terms of the order.134 If the order ceases or is set aside, the judgment creditor may take other enforcement action against the judgment debtor for the remainder of the judgment debt.

128 Court Procedures Rules 2006 (ACT) rr 2150–2153. Leave may be required if the judgment debtor has previously sought an instalment order within the preceding six months: r 2152(1). 129 Court Procedures Rules 2006 (ACT) r 2157.

Page 20 of 52 Chapter 24 Enforcement and Contempt 130 Court Procedures Rules 2006 (ACT) r 2151. 131 Court Procedures Rules 2006 (ACT) r 2153. 132 Court Procedures Rules 2006 (ACT) rr 2155 and 2159. The stay only applies in respect of the first application for an instalment order. 133 Court Procedures Rules 2006 (ACT) r 2160. 134 Court Procedures Rules 2006 (ACT) r 2162.

New South Wales

24.40 In New South Wales, an instalment order may be made either as a result of an agreement between the parties,135 or on an application by the judgment debtor.136 In support of its application for an instalment order, the judgment debtor must provide an affidavit outlining its financial circumstances.137 The application may be dealt with by the registrar in the first instance and on an ex parte basis.138 Following a determination by the registrar, the judgment debtor may, within 14 days, object to the ruling of the registrar after which the matter will be determined by the court by way of a hearing.139 The execution of a judgment is stayed pending the determination of an application for an instalment order.140 Once an instalment order is made, the judgment debtor must make payments to the judgment creditor by way of instalments in accordance with the order.141 The execution of judgment remains stayed while the order is in force.142 If the judgment debtor fails to comply with the order, the order

Page 927 ceases to have effect.143 An instalment order may be rescinded or varied if the judgment debtor’s financial circumstances subsequently change.144

135 Uniform Civil Procedure Rules 2005 (NSW) r 37.1A. 136 Uniform Civil Procedure Rules 2005 (NSW) r 37.2(1). 137 Uniform Civil Procedure Rules 2005 (NSW) r 37.2(2)(b). 138 Uniform Civil Procedure Rules 2005 (NSW) r 37.3; Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055 at [20] Barrett J.

per

139 Uniform Civil Procedure Rules 2005 (NSW) rr 37.3(4) and 37.4. 140 Uniform Civil Procedure Rules 2005 (NSW) r 37.5. 141 Uniform Civil Procedure Rules 2005 (NSW) r 37.4A(1). 142 Civil Procedure Act 2005 (NSW) s 107(1). 143 Uniform Civil Procedure Rules 2005 (NSW) r 37.7. 144 Uniform Civil Procedure Rules 2005 (NSW) r 37.6.

Queensland

24.41 In Queensland, a court may make an order authorising the satisfaction of a judgment debt by instalment payments.145 The order may be made by application of the judgment debtor without notice to the judgment creditor, although in such circumstances the judgment creditor may apply to have the order set aside or varied.146 In determining whether to make an instalment order, the court may have regard to matters such as whether the judgment debtor is employed, the means by which the judgment debtor will satisfy the judgment debt, and the judgment debtor’s living expenses.147 An instalment order will stay any further enforcement action by the judgment

Page 21 of 52 Chapter 24 Enforcement and Contempt creditor.148 However, the order will cease to have effect if the judgment debtor fails to make two consecutive payments in accordance with the terms of the order.149 The order or its terms may be varied or suspended.150

145 Uniform Civil Procedure Rules 1999 (Qld) r 868(1). 146 Uniform Civil Procedure Rules 1999 (Qld) r 868(2)–(6). 147 Uniform Civil Procedure Rules 1999 (Qld) r 869. 148 Uniform Civil Procedure Rules 1999 (Qld) r 870. 149 Uniform Civil Procedure Rules 1999 (Qld) r 872. 150 Uniform Civil Procedure Rules 1999 (Qld) r 871.

South Australia

24.42 In South Australia, a judgment creditor may apply for an order that the judgment debtor pay the judgment debt immediately or within a specified period of time, or pay the judgment debt in instalments as the court specifies in the order.151 Unless the court orders otherwise, such an order may only be made against a natural person after the court has conducted an investigation into the judgment debtor’s means of satisfying the judgment debt.152 In determining whether to make the order against a natural person, the court is to have regard to the judgment debtor’s means of satisfying the judgment, his or her living expenses and that of his or her dependants, and any other liabilities of the judgment debtor.153 The order must not be framed so that it imposes unreasonable obligations on the judgment debtor. If a judgment debtor fails to comply with the order, the court may issue a summons to require the judgment debtor to appear for examination.154 If, after examination, the court is satisfied that the judgment debtor has failed to comply with an instalment order without reasonable excuse, and at least two instalments are in arrears, the court may commit the judgment debtor to prison for a period of not more than 40 days.155

Page 928

151 Enforcement of Judgments Act 1991 (SA) s 5(1). 152 Enforcement of Judgments Act 1991 (SA) s 5(2). 153 Enforcement of Judgments Act 1991 (SA) s 5(3). 154 See 24.20 ff in relation to examination. 155 Enforcement of Judgments Act 1991 (SA) s 5(7). If, while in prison, the judgment debtor satisfies the judgment debt, the judgment debtor is to be released from prison.

Tasmania

24.43 In Tasmania, a court may direct that any judgment debt be paid in instalments.156 In the case of a Supreme Court judgment, where it proved that the judgment debtor has had the means to pay an instalment but has refused or neglected to pay, the judgment debtor is liable to be committed to prison for up to six weeks, or until the payment of the sum due is paid.157

Page 22 of 52 Chapter 24 Enforcement and Contempt

156 Debtors Act 1897 (Tas) s 4(5). 157 Debtors Act 1897 (Tas) s 4(1).

Victoria

24.44 In Victoria, a court may, either of its own motion or by application of either party, order that the judgment sum be paid in instalments as specified in the order.158 The order may be made either at the time of the giving of judgment, or thereafter by application.159 Alternatively, the parties may agree to the judgment debtor paying the judgment debt in instalments.160 In the Supreme Court, an application for an instalment order is dealt with in the first instance by either an associate judge or a judicial registrar, without the need for either party to be heard.161 Following a first instance decision, a party may file a notice of objection within 14 days of receiving notice of the decision,162 after which the application will be set down for a hearing by a judge of the court.163 While an instalment order is in force and being complied with, it operates as a stay on the enforcement or execution of the judgment.164 A party may apply to vary or cancel an instalment order on either of the following grounds only:165 (a)

there has been a substantial increase in the property or means of the judgment debtor; or

(b)

any information given in support of the application for the instalment order [or an instalment agreement] was inaccurate.

158 Judgment Debt Recovery Act 1984 (Vic) ss 5 and 6(1). 159 The application must be in the prescribed form, specify the amount of the judgment debt then owing to the judgment creditor, and specify the amount of each instalment proposed to be paid and the times at which instalments are proposed to be paid: s 6(2). See also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 61.02 regarding the relevant forms and information to be provided, including by way of an affidavit. 160 Judgment Debt Recovery Act 1984 (Vic) s 7(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 61.03. 161 Judgment Debt Recovery Act 1984 (Vic) s 6(3). 162 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 61.02(7). 163 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 61.02(8). 164 Judgment Debt Recovery Act 1984 (Vic) s 9. 165 Judgment Debt Recovery Act 1984 (Vic) s 8(2).

24.45 Unless the court is satisfied otherwise, an instalment order cannot be made, varied or cancelled without the judgment debtor first having been examined.166 This restriction does not apply to instalment orders made by agreement or by an associate judge or judicial registrar at first instance. If a judgment debtor defaults on the payment of an instalment, the court may issue a warrant for the apprehension of

Page 929 the judgment debtor.167 With the appearance of the judgment debtor, the court will examine the judgment debtor and consider the circumstances of the default, after which it may confirm, vary or cancel the instalment order.168 If the court finds that a judgment debtor who has the means to pay the instalments under an instalment order and persistently and wilfully, and without an honest and reasonable excuse defaults in the payment of the instalments

Page 23 of 52 Chapter 24 Enforcement and Contempt under an instalment order, the court may commit the judgment debtor to imprisonment.169 The maximum term of imprisonment is 40 days, although the debtor may be discharged earlier if the relevant instalments the subject of the default are paid.170

166 Judgment Debt Recovery Act 1984 (Vic) s 13. 167 Judgment Debt Recovery Act 1984 (Vic) s 17(1). 168 Judgment Debt Recovery Act 1984 (Vic) s 18. 169 Judgment Debt Recovery Act 1984 (Vic) s 19. 170 Judgment Debt Recovery Act 1984 (Vic) s 19(1) and (3).

Western Australia

24.46 In Western Australia, a judgment creditor may apply to the court for an instalment order.171 The judgment debtor must be examined prior to the making of any such order.172 If the judgment debtor fails to make two consecutive payments in accordance with the terms of the order, the judgment creditor may apply for the judgment debtor to be subject to a default inquiry.173 If a court is satisfied at a default inquiry that the judgment debtor had the means to pay the instalments at the time that they were due to be paid, and did not have a reasonable excuse for not paying, the judgment debtor is guilty of contempt.174 An individual (including, if relevant, the officer of the judgment debtor, if it is a corporation) may be imprisoned for up to 40 days.175 The court may suspend the term of imprisonment to enable the judgment debtor to comply with the instalment order, including a varied instalment order.

171 Civil Judgments Enforcement Act 2004 (WA) s 33. 172 Civil Judgments Enforcement Act 2004 (WA) s 21(1)(b). 173 Civil Judgments Enforcement Act 2004 (WA) s 88. A summons may be issued to require the judgment debtor attend a default inquiry: s 89. 174 Civil Judgments Enforcement Act 2004 (WA) s 90(1)(b). 175 Civil Judgments Enforcement Act 2004 (WA) s 90(2)–(3).

Garnishee order

24.47 A judgment creditor that has discovered that the judgment debtor has valuable liquid assets that are held by others, such as bank deposits, will be interested in obtaining access to such assets in order to satisfy the judgment debt. Under the common law, execution against the judgment debtor’s assets did not extend to debts owed to the judgment debtor.176 However, as a result of statutory intervention,177 a judgment creditor may execute a judgment in respect of such debts by way of what

Page 930 has traditionally been termed a ‘garnishee order’.178 A garnishee order compels a third party (the ‘garnishee’) that owes a sum of money to the judgment debtor, to pay the sum directly to the judgment creditor in satisfaction of the judgment debt.179 This is referred to as an ‘attachment’. The garnishee who pays money to the judgment creditor under such an order is discharged from its debt to the judgment debtor. It must be stressed that a judgment creditor cannot, by means of a garnishee order, stand in a better position as regards a third party than did the judgment

Page 24 of 52 Chapter 24 Enforcement and Contempt debtor. If the debt owed by the garnishee to the judgment debtor exceeds the judgment debt, the garnishee is only liable to pay up to the amount of the judgment debt.

176 Horsley v Cox (1869) LR 4 Ch App 92

.

177 Commencing with the Common Law Procedure Act 1854 (UK). For an overview of the development of garnishee orders, see A G Saddington, ‘Orders of Court and Garnishee Process’ (1948) 21 Australian Law Journal 346. See also Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53 at [116]–[125]

per Leeming JA.

178 Court Procedures Rules 2006 (ACT) r 2301 (‘debt redirection order’); Civil Procedure Act 2005 (NSW) s 117; Supreme Court Rules (NT) Os 71 and 72; Uniform Civil Procedure Rules 1999 (Qld) r 840(1); Enforcement of Judgments Act 1991 (SA) s 6; Supreme Court Rules 2000 (Tas) rr 912 and 914; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Os 71 and 72; Civil Judgments Enforcement Act 2004 (WA) Pt 4 Div 5. 179 Except where expressly stated in legislation, Crown immunity prevents the Crown from being bound by a garnishee order: WA Purvis Stores Pty Ltd v Richardson [1941] VLR 56

; Samuel Allen & Sons Ltd v Mayfield Homes Pty Ltd;

Commissioner for Railways [1979] Qd R 68 . Examples of statutory modification to this position are found in Civil Procedure Act 2005 (NSW) s 106(6) and Civil Procedure Act 2011(Qld) s 95.

Attachment of debts

24.48 Any debt which is due or accruing by the garnishee to the judgment debtor at the time of the service of the order may be attached.180 The debt must be absolute and not merely a conditional debt.181 The debt must be one in respect of which the judgment debtor would have an enforceable claim whether in law or in equity.182 A debt that may arise in the future is not attachable.183 Payment by the garnishee to the judgment creditor discharges the liability of the garnishee to the judgment debtor to the extent of the amount paid to the judgment creditor. The nature of a garnishee order against third party debts was explained by the Full Court of the Supreme Court of Victoria in Tile Centre v Symons 184 as follows: There is an order of a Court of Common Law that a sum equal to the original debt shall be paid by the garnishee to the judgment creditor, or as an alternative that execution may issue; but I think that the relation which is created by that section and the orders made under it does not create a debt at all; it creates an attachment of a portion of a debt; and, in case of non-payment confers the right of issuing execution and nothing more.

180 Holtby v Hodgson (1889) 24 QBD 103

; Lin v Borrowdale [2011]NSWCA 65 at [29]

181 Howell v Metropolitan District Railway Co (1881) 19 Ch D 508 Destinations (No 3) (2013) 306 ALR 449; [2013] FCA 1194 at [7]

per Whealy JA.

, applied in Catalno v Managing Australia per Flick J.

182 In respect of equity, see, for example, Australian and New Zealand Banking Corporation Ltd v S & Co [2014] NSWSC 1094

.

183 Fellows v Thornton (1884) 14 QBD 335 184 [1972] VR 965 at 972

.

; Seabrook Estate Co Ltd v Ford [1949] 2 All ER 94

.

Page 25 of 52 Chapter 24 Enforcement and Contempt

24.49 The position in relation to money held by a judgment debtor in the account of a bank or other financial institution is complex. As a general principle, where a customer deposits money into its bank account, it is said that the bank becomes a

Page 931 debtor to the customer. In Citigroup Pty Ltd v National Australia Bank ,185 Barrett JA described the relationship as follows: The accepted analysis of the banker-customer relationship where the account is in credit casts the bank in the role of the customer’s debtor. Money notionally ‘in’ the customer’s account is in truth money owned by the bank which is owed by it to the customer and payable on demand made by the customer by way of ‘withdrawal’…

185 [2012] NSWCA 381 at [41]

.

24.50 On its face, it stands to reason that where a customer’s bank account is in credit, the money deposited into the bank should be attachable. However, whether such money can be described as due or accruing will depend upon contractual terms between the judgment debtor and the bank.186 For example, it used to be the case that the credit in a savings account was not an amount due or accruing by the bank such that it could be attached. This is because the account holder must satisfy certain conditions precedent (for example,presenting a passbook or a withdrawal form) in order to have the right to withdraw money from the account.187 Put another way, the judgment debtor has no legal right to make a debt claim against the bank without having first complied with the conditions precedent (simple as those conditions precedent may be). A different approach has been taken by courts in relation to current and cheque accounts, in which it has been held that credit balances in such accounts are due or accruing and are attachable.188 This is because the service of the garnishee order has been held to satisfy the condition precedent to the customer being entitled to the credit balance in the judgment debtor’s account.189 The complexities arising out of the attachment of bank accounts have now largely been overcome by legislation and court rules which, in effect, provide that amounts to the credit of the judgment debtor in a financial institution are taken to be debts owed to the judgment debtor by the financial institution, and therefore may be attached.190

186 Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377

at 380

187 Re Australian and New Zealand Savings Bank Ltd; Mellas v Evriniadis [1972] VR 690 at 693 Winneke CJ and Crockett J agreed). 188 Music Masters Pty Ltd v Minelle [1968] Qd R 326 189 Joachimson v Swiss Bank Corp [1921] 3 KB 110

per Esher MR. per Pape J (with whom

. (EWCA Civ) at 121 per Banks LJ.

190 Court Procedures Rules 2006 (ACT) r 2306; Civil Procedure Act 2005 (NSW) s 117(2); Supreme Court Rules (NT) r 71.3; Uniform Civil Procedure Rules 1999 (Qld) r 851; Enforcement of Judgments Act 1991 (SA) s 6(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 71.03; Civil Judgments Enforcement Act 2004 (WA) s 48 and Sch 1 (item 1). There is no equivalent in Tasmania. In New South Wales, a garnishee order does not operate to attach a debt by the financial institution if less than $20: Uniform Civil Procedure Rules 2005 (NSW) r 39.39A.

Page 26 of 52 Chapter 24 Enforcement and Contempt

24.51 Originally, there was a two-step procedure in relation to garnishee orders. First, a judgment creditor seeking the order would apply for and obtain a garnishee order nisi. This order was obtained without notice to the garnishee. Once the garnishee was served with the order, the debt was bound, preventing the garnishee from dealing with the debt except in accordance with the order.191 The second step was for the court to make an order absolute, which would be made if the garnishee did not show cause as to

Page 932 why the court should not make the order. The judgment creditor only obtained a right to payment directly from the garnishee once an order absolute was made.192

191 Chatterton v Watney (1881) 17 Ch D 259 (No 2) [1992] 2 Qd R 197 at 201

at 262

per Cotton LJ; Relwood Pty Ltd v Manning Homes Pty Ltd

per McPherson SPJ.

192 Chatterton v Watney (1881) 17 Ch D 259

at 262

per Cotton LJ.

24.52 The present procedure for obtaining a garnishee order varies across the jurisdictions. In New South Wales, the court may make a garnishee order which takes effect when it is served on the garnishee.193 The application for an order is by way of a notice of motion supported by an affidavit which, among other things, must identify the garnishee and the debts that appear to be owing by the garnishee to the judgment debtor.194 The court may determine the application in the absence of the parties. If, after having been served with the order, the garnishee believes that there is no debt due or accruing between the garnishee and the judgment debtor, the garnishee may serve on the judgment creditor a statement to that effect, verified by an affidavit.195 Where the garnishee does not comply with the order, the judgment creditor may apply to have the court hear and determine any questions regarding whether the garnishee is liable to pay the judgment debtor.196 If the court is satisfied that there is a debt as between the garnishee and the judgment debtor, the court may give judgment in favour of the judgment creditor against the garnishee.197 This allows the judgment creditor to commence enforcement proceedings directly against the garnishee. The procedure in the Australian Capital Territory, Queensland and Western Australia is similar to New South Wales, in that a garnishee order may be obtained without the need of giving prior notice to the garnishee.198 The order continues to take effect unless the garnishee makes an objection.199

193 Uniform Civil Procedure Rules 2005 (NSW) rr 39.34 and 39.39. See also Civil Procedure Act 2005 (NSW) s 123(1). The garnishee may retain an amount prescribed in the rules to cover the garnishee’s expenses of complying with the order. 194 Uniform Civil Procedure Rules 2005 (NSW) r 39.35. 195 Uniform Civil Procedure Rules 2005 (NSW) r 39.40. 196 Civil Procedure Act 2005 (NSW) s 124(1). 197 Civil Procedure Act 2005 (NSW) s 124(1)(b). The court may refuse to do so if it is of the opinion that, for example, the attached debt is too small: s 124(3). 198 Court Procedures Rules 2006 (ACT) r 2302(5). 199 Court Procedures Rules 2006 (ACT) r 2311; Uniform Civil Procedure Rules 1999 (Qld) r 844; Civil Judgments Enforcement Act 2004 (WA) ss 40 (earnings) and 55 (debts).

Page 27 of 52 Chapter 24 Enforcement and Contempt

24.53 In the Northern Territory and Victoria, a garnishee summons serves the same function as an order nisi. When served on the garnishee, the summons operates to attach to the relevant debt in the hands of the garnishee.200 The court may make a garnishee order (the equivalent of an order absolute) following a hearing on the summons.201

200 Supreme Court Rules (NT) r 71.6(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 71.06(1). 201 Supreme Court Rules (NT) r 71.9; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 71.09.

24.54 In Tasmania, the court may make a provisional garnishee order, which has the same function as an order nisi in that it attaches all debts owing and accruing by the garnishee to the judgment debtor at the time that order is served.202 If, after the

Page 933 expiration of 21 days, neither the garnishee nor the judgment debtor disputes the debt claimed to be due or accruing, the court may make a final order, the effect of which is to require the garnishee to pay the debt to the judgment creditor.203 A similar two-step process applies in South Australia in that if a garnishee order is obtained in the absence of either the judgment debtor or the garnishee, the court will adjourn to allow the judgment debtor or the garnishee an opportunity to be heard on whether the order ought to be confirmed, varied or revoked.204

202 Supreme Court Rules 2000 (Tas) rr 912 and 913. 203 Supreme Court Rules 2000 (Tas) r 914. 204 Enforcement of Judgments Act 1991 (SA) s 6(1) and (3).

Attachment of earnings

24.55 The general rule that a garnishee order may only be made in respect of debts presently due and accruing effectively disqualifies an order being made against the judgment debtor’s employer in respect of the future earnings of the judgment debtor. Of course, the judgment creditor could make successive applications for garnishee orders each time that the judgment debtor becomes entitled to income from his or her employer, although such a course would cause great inconvenience to the court and parties involved. As a result, in each jurisdiction, a garnishee order may be made against an employer to attach the future earnings of the judgment debtor as they fall due until the judgment debt has been satisfied.205 There may be limits placed on the amount that a judgment creditor can attach on each payment to ensure that the judgment debtor continues to receive some income to cover basic living expenses.206

205 Court Procedures Rules 2006 (ACT) Pt 2.18 Div 2.18.8; Civil Procedure Act 2005 (NSW) Pt 8 Div 3 Subdiv 2; Supreme Court Rules(NT) O 72; Uniform Civil Procedure Rules 1999 (Qld) Ch 19 Pt 6; Supreme Court Rules 2000 (Tas) r 921; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 72; Civil Judgments Enforcement Act 2004 (WA) Pt 4 Div 4.

Page 28 of 52 Chapter 24 Enforcement and Contempt 206 for example, Civil Procedure Act 2005 (NSW) s 122. In relation to attaching the earnings of Commonwealth public servants, see Public Service Regulations 1999 (Cth) Pt 8A.

Charging order

24.56 A charging order creates, in effect, an equitable charge in favour of the judgment creditor in property beneficially held by the judgment debtor.207 The court may also, either by the making of the charging order itself or by further order, restrain the person subject to the order (which may be the judgment debtor) from dealing with the property otherwise than in accordance with the directions of the judgment creditor.208

Page 934 If the judgment debtor fails to pay the judgment debt, the judgment creditor may obtain an order to sell the charged property.

207 Court Procedures Rules 2006 (ACT) r 2402; Civil Procedure Act 2005 (NSW) s 126(2). Note that charging orders made only be made by the Supreme and District Courts (s 106(1)(c)); Supreme Court Rules (NT) r 73.2; Uniform Civil Procedure Rules 1999 (Qld) Ch 19 Pt 8; Enforcement of Judgments Act 1991 (SA) s 8; Supreme Court Civil Procedure Act 1932 (Tas) s 166; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.02. In Western Australia, courts have the power, among other things, for the realisation of assets: Civil Judgments Enforcement Act 2004 (WA) s 86. 208 for example, Court Procedures Rules 2006 (ACT) r 2401(2); Civil Procedure Act 2005 (NSW) s 126(2); Supreme Court Rules (NT) r 73.7 (effect of service of a summons for a charging order); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.07 (effect of service of a summons for a charging order).

24.57 The procedure to obtain a charging order varies according to the relevant jurisdiction. For example, in New South Wales, a charging order may be obtained by way of a notice of motion which may be dealt with in the absence of the parties.209 By contrast, in the Northern Territory and Victoria, the judgment creditor must apply for and serve a charging summons on the person to whom it is proposed the order will apply.210 That person is then given an opportunity to be heard as to why the charging order should not be made, after which the court may make the order.211 It is at the court’s discretion whether or not a charging order will be made. One factor a court will take into account is whether the order will prejudice unfairly any unsecured creditors, given that the judgment creditor may obtain priority over such creditors.212

209 Uniform Civil Procedure Rules 2005 (NSW) r 39.44(2). 210 Supreme Court Rules (NT) r 73.4; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.04. 211 Supreme Court Rules (NT) r 73.8; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.08. The court may make the order if the proposed chargee does not contest the making the order. 212 Rainbow v Moorgate Properties Ltd [1975] 1 WLR 788 [1983] 2 AC 192 (HL).

24.58

(EWCA Civ); Roberts Petroleum Ltd v Bernard Kenny Ltd

Page 29 of 52 Chapter 24 Enforcement and Contempt The exact property which may be charged depends upon the jurisdiction. For instance, in New South Wales, the property to be charged may include:213 (a) stock and shares in a public company; (b) money on deposit in a financial institution that is in the judgment debtor’s name and own right, or held by another person on trust for the judgment debtor; and (c) any equitable interest in real property and personal property. In the Northern Territory and Victoria, the property which may be subject to a charging order includes:214 (a) any stock (which is defined to include shares, debentures, debenture stock, bond, note or other security) issued by or any funds of or annuity granted by the Commonwealth or by any state or territory; (b) any stock of any corporation registered or formed under any general Commonwealth Act or under any general Act of any state of the Commonwealth or any territory; and (c) any dividend or interest payable on any stock referred to in paragraph (a) or (b).

213 Civil Procedure Act 2005 (NSW) s 126(1). 214 Supreme Court Rules (NT) r 73.1; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.01.

24.59 A charging order does not create a proprietary interest in the property. Rather, the order merely protects the interest of the judgment creditor to the extent necessary to satisfy the judgment.215 The charge created by the order is subject to prior interests

Page 935 in the property.216 As mentioned above, if the judgment debt is not satisfied by the judgment debtor, the judgment creditor is able to obtain an order to sell the relevant property the subject of the charging order to satisfy the judgment debt. In New South Wales and Queensland, a judgment creditor must wait at least three months from the date of the charging order before taking action to take the benefit of the charge.217 In Tasmania, the judgment creditor must wait six months.218

215 Galbally & O’Bryan v Easton [2016] NSWSC 77 at [62]

per Hallen J.

216 Andersons Solicitors v Schigulski (2004) 88 SASR 1; [2004] SASC 21

.

217 Civil Procedure Act 2005 (NSW) s 126(4); Uniform Civil Procedure Rules 1999 (Qld) r 876. 218 Supreme Court Civil Procedure Act 1932 (Tas) s 166.

Stop order and stop notice

24.60 If a judgment debtor has paid funds or a bond into court, the judgment creditor may apply for a stop order to prevent the judgment debtor from dealing in the funds and bonds without first giving notice to the judgment creditor.219 A stop notice is a notice issued by the court which requires a corporation not to take, in relation to securities specified in the notice (such as stock not paid into court), steps such as the transfer of the securities or payment of dividend

Page 30 of 52 Chapter 24 Enforcement and Contempt or interest in the securities, without first giving notice to the judgment creditor.220 Applications for stop orders and stop notices may be made before judgment is given. Neither a stop order nor a stop notice creates a charge in the funds or securities in relation to which it is made.

219 Court Procedures Rules 2006 (ACT) r 2421; Uniform Civil Procedure Rules 2005 (NSW) r 41.16 (Supreme Court only); Supreme Court Rules (NT) r 73.12; Uniform Civil Procedure Rules 1999 (Qld) r 882; Supreme Court Rules 2000 (Tas) r 937; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 73.12; Civil Judgments Enforcement Act 2004 (WA) s 58. 220 Supreme Court Rules (NT) rr 73.13–73.14; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 73.13–73.14.

Appointment of receiver

24.61 Where it proves impossible to obtain the cooperation of a judgment debtor to pay a judgment debt, and the ordinary process of execution will not reach the property of the judgment creditor, the court may appoint a receiver.221 The power to appoint a receiver is within the inherent equitable jurisdiction of the court, although a power to appoint a receiver is now also found in legislation.222 In Re Shephard; Atkins v Shephard ,223 Cotton LJ said that ‘what a person gets by the appointment of the

Page 936 receiver, is not execution, but equitable relief which is granted on the ground that there is no remedy by execution at law’. As a result, the appointment of a receiver traditionally has been referred to as ‘equitable execution’, although the term has fallen into disuse.

221 Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547 (NSWSC) at 552 per Waddell J. 222 Hall v Foster [2012] NSWSC 974 at [16]–[17] per Ball J; Court Procedures Act 2004 (ACT) s 63; Supreme Court Act 1970 (NSW) s 67; Supreme Court Act (NT) s 69; Civil Proceedings Act 2011 (Qld) s 12; Supreme Court Act 1986 (SA) s 9; Supreme Court (Civil Procedure) Act 1932 (Tas) s 11(12); Supreme Court Act 1986 (Vic) s 37; Supreme Court Act 1935 (WA) s 25(9). In Hall, Ball J (at [18]) held that it remains unclear whether the inherent power to appoint a receiver should be seen as being embodied in the legislative form of the power, or whether the legislative power should be seen as conferring an additional power. However, his Honour took the view (at [19]) that, in the case of s 67 of the Supreme Court Act 1970(NSW), the power to appoint a receiver is concerned with interim preservation and not intended to cover execution of a final judgment (cf DM & BP Wiskich Pty Ltd v Joseph Saadi (NSWSC, Bryson J, 16 February 1996, unreported)). 223 (1889) 43 Ch 131 at 135.

24.62 Given the potentially disruptive nature of the appointment of a receiver, the court is unlikely to make an appointment in relation to a small debt.224 The power to appoint a receiver, it must be stressed, is not limited to enforcement of judgments. A court may also appoint a receiver before proceedings have started, or in existing proceedings, to preserve an asset pending the determination of a matter.225 A general power to appoint a receiver is also available under s 1323(1)(h) of the Corporations Act 2001 (Cth). This part of the chapter is concerned with receivership in aid of execution.

Page 31 of 52 Chapter 24 Enforcement and Contempt 224 J Walls Ltd v Legge [1923] 2 KB 240

.

225 See Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) [2016] NSWSC 1452

.

24.63 Receivership may be deployed in a number of different situations where legal remedies would be inadequate.226 For example, in Soinco SACI v Novokuznetsk Aluminium Plant , a receiver was appointed to receive a future debt payable to the judgment debtor from a third party under a supply contract.227 The court accepted that a garnishee order in those circumstances would be ineffective given that the debt was not presently due and payable.228 The court may also appoint a receiver where legal execution is frustrated by the conduct of the judgment creditor. For instance, in Re Aquaqueen International Pty Ltd ,229 a receiver was appointed over the judgment debtor’s property following numerous unsuccessful attempts by the judgment creditor to execute judgments through legal means. The court found that the judgment debtor did everything that she could to make it difficult for her to be served with documents relevant to the legal execution process.230

226 Morgan v Hart [1914] 2 KB 183 J.

; Re Aquaqueen International Pty Ltd [2016] NSWSC 508 at [42]

per Kunc

227 [1997] 3 All ER 523 (QBD). 228 [1997] 3 All ER 523 (QBD) at 539 per Colman J. 229 [2016] NSWSC 508

.

230 [2016] NSWSC 508 at [44]

per Kunc J.

24.64 On being appointed, the receiver will be given directions by the court. Thereafter, the receiver may apply to the court at any time for directions to assist him or her in carrying out his or her function as a receiver. For example, in Soinco, the court required that the judgment debtor disclose to the receiver information relevant to the debt obligation as between the judgment debtor and the third party. This would enable the receiver to understand when the debt would likely be payable to the judgment debtor.

Winding up

24.65 Outside of the enforcement and execution process, a judgment creditor may also have a basis to issue a statutory demand against a judgment debtor that is a company in respect of a judgment debt. A company that fails to pay the amount due

Page 937 under the statutory demand within 21 days is presumed to be insolvent,231 and may be wound up.232

Page 32 of 52 Chapter 24 Enforcement and Contempt 231 Corporations Act 2001 (Cth) s 459C(2)(a). A company may also be presumed to be insolvent if execution or other process issued on a judgment, decree or order of an Australian court in favour of a creditor of the company is returned wholly or partly unsatisfied: s 459C(2)(b). 232 Corporations Act 2001 (Cth) s 459E (issuing statutory demand, including in respect of judgment debt) and Pt 5.4 Div 4 (application for order to wind up company in insolvency). Such an application would be made by the judgment creditor. A debt under a statutory demand must be at least $2000 (which may be combined with other debts). For a more detailed analysis of winding up a company, see F Assaf, Statutory Demands and Winding Up in Insolvency, 2nd ed, LexisNexis Butterworths, Sydney, 2012.

24.66 Where a judgment debtor company is wound up, any process of execution against the company becomes void.233 The sheriff must not continue with any process of execution against the judgment debtor.234 If a judgment creditor has received any proceeds from the execution process within six months prior to the commencement of the winding up of the judgment debtor, it is liable to account for these proceeds to the liquidator.235 The judgment creditor may prove in the winding up as an unsecured creditor.

233 Corporations Act 2001 (Cth) s 468. If the company is wound up by resolution, the execution process becomes void after the passing of the resolution:s 500. 234 Corporations Act 2001 (Cth) s 570. 235 Corporations Act 2001 (Cth) s 569.

Bankruptcy

24.67 Where an individual judgment debtor is impecunious, a judgment creditor may have a basis to apply to have the debtor made bankrupt. The process is commenced by the judgment creditor applying for a bankruptcy notice from the Official Receiver,provided that the judgment debt is for more than $5000 (either of itself or when combined with another judgment debt in favour of the same judgment creditor) and is no more than six years old.236 The failure by the judgment debtor to satisfy the judgment debt constitutes an act of bankruptcy, provided that the judgment debtor does not have some valid counter-claim, set-off or other cross-demand of at least an equal value to the judgment debt.237 Upon committing an act of bankruptcy, the judgment creditor is entitled to apply by way of a creditor’s petition for a sequestration order, the making of which would make the judgment debtor a bankrupt.238 A sequestration order under the Bankruptcy Act 1966 (Cth) is not to be confused with a writ of sequestration for disobedience of a court order.239

236 Bankruptcy Act 1966 (Cth) s 41(1) and (3). 237 Bankruptcy Act 1966 (Cth) s 40(1)(g). 238 Bankruptcy Act 1966 (Cth) s 43. 239 See 24.93.

24.68

Page 33 of 52 Chapter 24 Enforcement and Contempt Bankruptcy may fetter the process of execution. Under s 119A of the Bankruptcy Act 1966 (Cth), where a judgment debtor becomes a bankrupt, the trustee must give written notice to the sheriff of that fact. The sheriff is thereby prevented from taking any further action to sell property of the judgment debtor in pursuance of execution and

Page 938 taking any action on behalf of the judgment creditor to attach debts due to a judgment debtor (such as under a garnishee order). The sheriff is required to deliver to the trustee, among other things, any property which has been received by the sheriff as part of the process of execution and any proceeds of sale of property sold by the sheriff. Under s 118 of the Bankruptcy Act 1966 (Cth), the trustee may recover any money received by a judgment creditor as a result of execution within six months prior to the presentation of a bankruptcy petition against the judgment debtor. The judgment creditor in those circumstances may prove in the bankruptcy for its debts as an unsecured creditor.240

240 Bankruptcy Act 1966 (Cth) s 118(3).

Writ of possession

24.69 Where a party is entitled under a judgment or order to possession of land, that party may enforce its right by writ of possession.241 The writ is only available where the judgment provides that a plaintiff is entitled to possession. It is not available where, for example, a court has granted an injunction requiring a defendant give vacant possession of property to the plaintiff.242 Such a judgment is only enforceable by way of contempt proceedings. In New South Wales, a writ of possession may only be issued with leave of the court.243 The sheriff executes the writ by entering the relevant land and removing any person on it.244

241 Court Procedures Rules 2006 (ACT) r 2460; Civil Procedure Act 2005 (NSW) s 104; Uniform Civil Procedure Rules 2005 (NSW) r 39.3(3); Supreme Court Rules (NT) r 66.3; Uniform Civil Procedure Rules 1999 (Qld) r 896; Enforcement of Judgments Act 1991 (SA) s 11; Supreme Court Rules 2000 (Tas) r 874; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.03; Civil Judgments Enforcement Act 2004 (WA) s 95. 242 NSW Trustee and Guardian v Schneider [2011] NSWSC 424 at [22]

per Brereton J.

243 Uniform Civil Procedure Rules 2005 (NSW) r 39.1(1)(d). 244 Upton and Wells Case (1589) 1 Leon 145; 74 ER 135, referred to in Maher v Commonwealth Bank of Australia (No 2) (2004) 211 ALR 656; [2004] FCA 1398 at [4]

per Finkelstein J.

24.70 As a general rule, on the execution of the writ, the plaintiff is entitled to vacant possession of the land.245 A defendant is liable to an order to remove its belongings if it refuses to do so after execution.246 If, following execution of the writ of possession, the defendant forcibly re-enters the land, the plaintiff may seek a writ of restitution to have the plaintiff’s possession restored.247 The defendant may also be liable for contempt in respect of the re-entry.

Page 939

Page 34 of 52 Chapter 24 Enforcement and Contempt 245 Norwich Union Life Insurance Society v Preston [1957] 2 All ER 428 (EWHC (Ch)) at 429 per Wynn-Parry J; Capital Assist Pty Ltd v Lakewood Stud (SA) Pty Ltd [2006] SASC 375

.

246 Norwich Union Life Insurance Society v Preston [1957] 2 All ER 428 (EWHC (Ch)). The leaving behind of belongings by the defendant is akin to the defendant claiming a right to use the premises for its own purposes — a right which is inconsistent with the plaintiff’s right to vacant possession: see Cumberland Consolidated Holdings v Ireland [1946] 1 All ER 284 at 287 per Lord Greene MR. In New South Wales, a sheriff is not obliged to remove any property in order to execute a writ of possession: Civil Procedure Act 2005 (NSW) s 104. 247 Pitcher v Roe (1841) 9 Dowl 971

; Alliance Building Society v Austen [1951] 2 All ER 1068

Commonwealth Bank of Australia (No 2) (2004) 211 ALR 656; [2004] FCA 1398 at [6] Ltd v Kelso [2008] NSWSC 906 at [19]–[20] [2016] NSWSC 1586

; Maher v

per Finkelstein J; Perpetual

per Johnson J; Commonwealth Bank of Australia v Maksacheff (No 2)

.

Writ of delivery

24.71 Where a party is entitled under a judgment or order to possession of goods, that party may enforce its right by writ of delivery.248 The court may give directions in relation to the delivery of goods, including authorising the sheriff to enter premises for the purpose of taking the relevant goods.249 In New South Wales, such directions are unlikely to be made unless the plaintiff establishes first that while attempting to execute the writ, the sheriff was refused entry to the place at which the goods are believed to be kept, or there are otherwise special circumstances.250

248 Court Procedures Rules 2006 (ACT) r 2451; Uniform Civil Procedure Rules 2005 (NSW) Pt 39 Div 2; Supreme Court Rules (NT) r 70.1; Uniform Civil Procedure Rules 1999 (Qld) rr 896 and 915; Enforcement of Judgments Act 1991 (SA) s 11; Supreme Court Rules 2000 (Tas) r 945; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 70.01; Civil Judgments Enforcement Act 2004 (WA) ss 71 and 80. 249 For example, Civil Procedure Act 2005 (NSW) s 135(2)(a). 250 Civil Procedure Act 2005 (NSW) s 135(2); Leetham v Leetham [2011] NSWSC 201 at [7]

per Brereton J.

Substituted performance

24.72 Where a judgment requires a party to perform a specific act, and that party refuses, the court may appoint a third party to perform that act.251 While there are similarities between substituted performance and receivership, the former is not used in relation to money judgments. Orders for substituted performance may assist in cases where a party, contrary to a court order, refuses to execute an instrument (such as a contract or an assignment) or to demolish a building or structure.252 The party bound by the judgment may still be committed for contempt notwithstanding the substituted performance of a third party.

251 High Court Rules 2004 (Cth) r 10.02.2; Federal Court Rules 2011 (Cth) r 41.09; Court Procedures Rules 2006 (ACT) r 2442(4); Civil Procedure Act 2005 (NSW) s 94; Uniform Civil Procedure Rules 2005 (NSW) r 40.8; Supreme Court Rules (NT) r 66.11; Uniform Civil Procedure Rules 1999 (Qld) r 899; Enforcement of Judgments Act 1991 (SA) s 13; Supreme Court Rules 2000 (Tas) r 877; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.11; Civil Judgments Enforcement Act 2004 (WA) s 99. 252 for example, Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46

.

Page 35 of 52 Chapter 24 Enforcement and Contempt

Contempt of court ‘Criminal contempt’ and ‘civil contempt’

24.73 Courts in Australia have the jurisdiction to commit persons for contempt.253 Committal and punishment for contempt achieves two objectives: The first is to enforce obedience to court processes and orders, breaches of which are often termed ‘civil contempt’. Conduct which falls into this category includes failing to comply with an injunction ordering a person to do or refrain from doing something. The second objective is to punish acts which ‘impede the administration of justice’, breaches of

Page 640 which are often termed ‘criminal contempt’.254 The following are acts that fall within this category: (a) conduct that has a real tendency to influence improperly or deter a witness, judge, magistrate or any other party connected with the proceeding from performing their role;255 (b) publishing scandalous or tendentious material that has the tendency or is calculated to undermine the public confidence in the administration of justice (referred to, in some instances, as sub judice contempt);256 and (c) conduct in the ‘face of the court’ which has the tendency to interfere with or undermine the authority or dignity of the court.257 Examples of such conduct include the use of offensive language before a judge or magistrate,258 disobeying a subpoena,259 a witness refusing to answer questions in the course of examination,260 and assaulting counsel in court.261

253 for a detailed account of the jurisdiction, see Arlidge, Eady & Smith on Contempt, 4th ed, Sweet & Maxwell, London, 2011; C J Miller, Contempt of Court, 3rd ed, Oxford University Press, Oxford, 2000. 254 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 per Gibbs CJ, Mason, Wilson and Deane JJ. See also Martin v Bannister (1879) 4 QBD 491 (EWCA); A-G v Newspaper Publishing plc [1992] 1 AC 191 (HL). 255 Harkianakis v Skalkos (1997) 42 NSWLR 22

.

256 R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442–3 CLR 386; [1999] HCA 57

per Rich J; Re Colina; Ex parte Torney (1999) 200

; Hoser and Kotabi Pty Ltd [2001] VSC 443 at [45]

Protection Authority v Pannowitz (2006) 164 A Crim R 325; [2006] NSWLEC 219

per Eames J; Environment

.

257 Witham v Holloway (1995) 184 CLR 525 at 538 per McHugh J. 258 Prothonotary of the Supreme Court of New South Wales v Hall [2008] NSWSC 994 259 O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358 260 Smith v R (1991) 25 NSWLR 1

.

.

.

261 Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506

24.74

.

Page 36 of 52 Chapter 24 Enforcement and Contempt The sanction for criminal contempt is wholly punitive and is designed to act as a deterrent against future infringements, as well as to impose a penalty for the act of interference with the due administration of justice.262 The sanction for civil contempt, as discussed further below,263 is essentially coercive in that it is intended to enforce compliance with an order of the court. However, the court may add a punitive element in order to uphold the authority of the law.264

262 Pratt v Inman (1889) 43 Ch D 175 . Mens rea is required to constitute criminal contempt, but there is no such requirement for civil contempt: A-G v Newspaper Publishing plc [1992] 1 AC 191 (HL). 263 See 24.86. 264 Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1964] Ch 195 it may be wholly punitive: Jennison v Baker [1972] 1 All ER 997

at 198–9

. On occasion

.

24.75 The rationale for maintaining a distinction between criminal contempt and civil contempt has been the subject of ongoing judicial scrutiny in Australian and English courts.265 For instance, in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd ,266 the High Court opined that there was an absurdity in the proposition advanced by earlier authorities that a defendant who disobeys an injunction is guilty of a civil contempt, while a third party that assists in that disobedience commits a

Page 941 criminal contempt.267 The court viewed this distinction as artificial. Both forms of contempt have a common characteristic, namely that they involve an ‘interference with the due administration of justice either in a particular case or more generally as a continuing process’.268 Where conduct which falls into the category of civil contempt is carried out intentionally, it becomes criminal contempt.269

265 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107

per Gibbs

CJ, Mason, Wilson and Deane JJ; OB v The Director of the Serious Fraud Office [2012] EWCA Crim 67 at [22]–[25] per Gross LJ. 266 (1986) 161 CLR 98 at 109

per Gibbs CJ, Mason, Wilson and Deane JJ.

267 See, for example, Seaward v Paterson [1897] 1 Ch 545 268 Attorney-General v Leveller Magazine Ltd [1979] AC 440 269 Witham v Holloway (1995) 183 CLR 525 at 530

(EWCA Civ). at 449

per Lord Diplock.

per Brennan, Deane, Toohey and Gaudron JJ.

24.76 A further difficulty in the dichotomy arises where the defendant is unable to remedy a breach of an order, such as where a defendant makes a public disclosure of information it was bound to keep confidential. In Witham v Holloway ,270 Brennan, Deane, Toohey and Gaudron JJ said: The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the

Page 37 of 52 Chapter 24 Enforcement and Contempt distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. This is because there are some circumstances in which the breach simply cannot be remedied.

270 (1995) 183 CLR 525 at 531

.

24.77 In Witham, the defendant breached a freezing order by dealing with his assets in a way that reduced their value. Thus, when the defendant was later ordered to pay damages, the value of his assets was insufficient to satisfy the judgment debt. While proceedings for civil contempt were brought in relation to the defendant’s contemptuous conduct, no remedial order could be made by the court to undo the defendant’s conduct to restore the value of the assets. The court therefore had to resort to a punitive response in relation to the defendant’s conduct. Despite the conceptual difficulties discussed above, a distinction continues to be drawn between criminal contempt and civil contempt.

24.78 Contempt proceedings, whether in relation to civil contempt or criminal contempt, can be described as ‘criminal in nature’.271 The criminal standard of proof, namely proof beyond reasonable doubt, applies in relation to all proceedings for contempt.272 Principles of sentencing may be employed in determining the appropriate sanction.273 However, at least in relation to civil contempt, the matter is determined in the civil jurisdiction of the court.274 The alleged contemnor is not entitled to all of the protections afforded to an accused in a criminal trial. For instance, the alleged contemnor is not entitled to a trial by

Page 942 jury.275 Additionally, the alleged contemnor is not entitled to resist an order for discovery to produce materials that may prove the contemptuous conduct.276

271 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89

per Deane J; Construction, Forestry, Mining and Energy

Union v Boral Resources (Vic) Pty Ltd (2015)256 CLR 375; [2015] HCA 21 at [65] 272 Witham v Holloway (1995) 183 CLR 525 at 534

per Nettle J.

per Brennan, Deane, Toohey and Gaudron JJ.

273 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 JJ concurring).

per Kirby J (Mahoney and Clarke

274 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [66]

per Nettle J.

275 Witham v Holloway (1995) 183 CLR 525 at 534

.

276 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [69]

Standing

per Nettle J.

Page 38 of 52 Chapter 24 Enforcement and Contempt

24.79 Any person with an interest in the proceeding in which the contempt has arisen has prima facie standing to commence proceedings for contempt.277 In practice, though, incidents of interference with the administration of justice, or criminal contempt, are often matters for the Attorney-General, or relevant registrar or prothonotary of the court to pursue. If the contempt occurred in the court, the contemnor may be charged in court orally by the trial judge with the ‘gist’ of the accusation to be stated clearly.278 A breach of a court order is treated as civil contempt and therefore a matter for the parties to pursue by making a complaint to the court.279

277 Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595 278 Coward v Stapleton (1953) 90 CLR 573 at 579–80

.

279 A-G v Newspaper Publishing plc [1992] 1 AC 191

(HL).

per Kirby P.

24.80 It is well recognised that it is appropriate for an Attorney-General of the relevant jurisdiction to bring proceedings for criminal contempt if he or she believes that the application for committal is in the public interest.280 In making the application, an Attorney-General is said to represent the Crown for the protection of the administration of justice.281 Traditionally, it has not been the practice for an Attorney-General to bring proceedings for civil contempt. The rationale was explained by Lord Denning MR in Attorney-General (UK) v Times Newspapers Ltd :282 The Attorney-General will, as a rule, have no knowledge of the course of a civil action — or of any interference with it — unless it is brought to his knowledge by one of the parties to it. If the Attorney-General then himself takes proceedings for contempt, it means that he is putting the authority of the Crown behind the complaint. No doubt he can do so if he thinks it proper to do so. But I venture to suggest that he should not do so except in a plain case.

280 Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273 281 Clampett v Attorney-General (2009) 181 FCR 473 at [81] 282 [1973] 1 All ER 815 at 820–1

at 311

per Lord Diplock.

per Black CJ.

. The decision was overturned on appeal but the explanation of Lord Denning MR

was cited with approval in BHP v Dagi [1996]2 VR 117 at 134

per Winneke P.

24.81 This approach explained by Lord Denning MR is more of a convention than a rule. In certain cases, it may well be appropriate for the Attorney-General to move on the disobedience of a court order, particularly where the disobedience is intentional.283 In Boral Resources (Vic) Pty Ltd v CFMEU ,284 Digby J allowed the Attorney-General for Victoria to join proceedings in relation to a civil contempt. The court accepted that

Page 943

Page 39 of 52 Chapter 24 Enforcement and Contempt the alleged contemptuous conduct, which concerned a large infrastructure project, would have had a significant impact on members of the community such that the Attorney-General had a legitimate interest in the matter.285

283 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia [2001] FCA 774 284 [2013] VSC 572

. Although, as noted above, the intentional breach of an order may amount to a criminal contempt. .

285 [2013] VSC 572 at [71]–[76].

The power to commit for civil contempt

24.82 Committal for contempt is wholly inappropriate for dealing with the great majority of procedural defaults. Its use in relation to enforcing procedural requirements, as distinguished from orders directed to protect substantive rights, is largely confined to orders such as Mareva (or freezing) orders, Anton Piller (or search) orders, and orders for the production of documents directed to non-parties. Contempt proceedings and sequestration proceedings (discussed below at 24.93) are available to enforce compliance with orders that direct a party ‘to do or not to do’ a specified act, such as in an injunction286 or a decree of specific performance.287 A party that fails to comply with a subpoena is also in contempt of court.288 An undertaking given to the court in lieu of an injunction is equivalent to an injunction and may be enforceable in like manner.289 A third party that is aware of the orders of the court and who aids or abets the commission of a contempt is also liable to be committed.290 However, it is not a contempt of court for a party to act inconsistently with a declaration, as a declaration, in and of itself, is not a coercive order.291 A party seeking to enforce its rights under a declaration must take the antecedent step of obtaining an injunction.292

286 Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750 287 CH Giles & Co Ltd v Morris [1972] 1 All ER 960

.

.

288 Federal Court Rules 2011 (Cth) r 24.23; Court Procedures Rules 2006 (ACT) r 6612; Uniform Civil Procedure Rules 2005 (NSW) r 33.11; Supreme Court Rules (NT) r 42.6;Uniform Civil Procedure Rules 1999 (Qld) r 811; Supreme Court Civil Rules 2006 (SA) r 181; Supreme Court Rules 2000 (Tas) r 500D; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.06(1); Rules of the Supreme Court 1971 (WA) O 38 r 9. See also Chapter 15, 15.172. 289 Biba Ltd v Stratford Investments Ltd [1973] Ch 281

; Bishlawi v Minrealm Ltd [2007] EWHC 2204 (Ch). However,

see the rules of the applicable court. For example, in Alexander v Crawford [2003] NSWSC 426 , the Supreme Court of New South Wales held that rules of contempt in the equivalent of Pt 40 of the Uniform Civil Procedure Rules 2005 (NSW) did not deal with undertakings given to the court that had not been reflected in a court order or judgment. 290 Marron v Salvemini; Re Scardigno [1969] WAR 178 609

; Times Newspapers Ltd v Attorney-General (1991) 20 IPR

.

291 Webster v Southwark London Borough Council [1983] 2 WLR 217

(EWHC) at 222–4 per Forbes J.

292 Webster v Southwark London Borough Council [1983] 2 WLR 217

(EWHC) at 223 per Forbes J.

24.83

Page 40 of 52 Chapter 24 Enforcement and Contempt Superior courts have the power to commit parties for contempt within their inherent jurisdiction.293 The High Court of Australia and the Federal Court of Australia are given the same powers to punish for contempt of their power and authority as was

Page 944 possessed by what was then known as the Supreme Court of Judicature in England.294 The power to commit is also found within the rules of each court.295

293 R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 256

.

294 Judiciary Act 1903 (Cth) s 24. The Federal Court of Australia Act 1979 (Cth) provides that the Federal Court is invested with the same jurisdiction to punish for contempt as the High Court. Following the Constitutional Reform Act 2005 (UK), the courts making up what was formerly known as the Supreme Court of Judicature (namely, the High Court of Justice, the Crown Court and the Court of Appeal)are now known together as the Senior Courts of England and Wales. 295 High Court Rules 2004 (Cth) rr 10.02.2 and 10.02.5; Federal Court Rules 2011 (Cth) Pt 42; Court Procedures Rules 2006 (ACT) Pt 2.18 Div 2.18.16; Uniform Civil Procedure Rules 2005 (NSW) r 40.6; Supreme Court Rules (NT) r 66.5; Uniform Civil Procedure Rules 1999 (Qld) Ch 20 Pt 7; Enforcement of Judgments Act 1991(SA) s 12; Supreme Court Rules 2000 (Tas) r 876; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.05; Civil Judgments Enforcement Act 2004 (WA) s 98.

24.84 In the light of the potentially punitive consequences of a finding of contempt, the party liable to be committed (the contemnor) must have appreciated that the complained conduct amounted to a contempt. This manifests itself in two prerequisites to a committal for contempt. First, it must be demonstrated that the contemnor had knowledge of the relevant judgment or order prior to committing the relevant breach. Notice of the order may be achieved by personal service of a sealed copy of the order.296 In some jurisdictions, personal service is not needed if the contemnor was present in court at the time that the judgment or order was made.297 Subject to the rules of the court, the order may need to be endorsed with a warning that non-compliance with the order may amount to contempt.298 Secondly, the terms of the relevant order or undertaking must be clear and unambiguous, and capable of performance.299 It would be unjust for a contemnor to be committed in circumstances where the contemnor is unable to understand whether or not it has disobeyed or complied with a court order. Despite these two requirements, it is not necessary for the party applying to commit the contemnor to prove that the contemnor intended to breach the relevant order.300

Page 945

296 Federal Court Rules 2011 (Cth) r 41.07(1); Court Procedures Rules 2006 (ACT) r 2446(1)(a); Uniform Civil Procedure Rules 2005 (NSW) r 40.7(1); Supreme Court Rules (NT) r 66.10; Uniform Civil Procedure Rules 1999 (Qld) r 904(1); Supreme Court Civil Rules 2006 (SA) r 255(3); Supreme Court Rules 2000 (Tas) r 883(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.10; Rules of the Supreme Court 1971 (WA) O 71. 297 Federal Court Rules 2011 (Cth) r 41.07(2); Court Procedures Rules 2006 (ACT) r 2446(2); Uniform Civil Procedure Rules 2005 (NSW) r 40.7(5) (dispensing with the rules of service); Supreme Court Rules (NT) r 66.10(5); Uniform Civil Procedure Rules 1999 (Qld) r 904(2); Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 66.10(5). 298 See, for example, Federal Court Rules 2011 (Cth) r 41.06; Uniform Civil Procedure Rules 2005 (NSW) r 40.7(3). 299 Parry v Crooks (1981) 27 SASR 1

; Witham v Holloway (1995) 183 CLR 525

Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209; [2015] FCA 1275 at [9] [2017] FCA 420 at [42]

per O’Callaghan J.

; Humane Society International Inc v per Jagot J; AGL Energy Ltd v Hardy

Page 41 of 52 Chapter 24 Enforcement and Contempt 300 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112 CJ, Mason, Wilson and Deane JJ.

per Gibbs

Corporations

24.85 The officers of a corporation bound by a judgment or order may be committed for contempt if the corporation breaches the order or judgment.301 The officers must have knowledge of the judgment or order.302 A committal of an officer has the effect of requiring the officer to take steps to see that his or her corporation complies with the order or judgment.303

301 Court Procedures Rules 2006 (ACT) r 2442; Uniform Civil Procedure Rules 2005 (NSW) r 40.06(2)(c); Supreme Court Rules (NT) rr 66.05 and 75.11; Uniform Civil Procedure Rules 1999(Qld) r 898; Supreme Court Civil Rules 2006 (SA) r 244; Supreme Court Rules 2000 (Tas) r 876(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.05 and 75.11; Civil Judgments Enforcement Act 2004 (WA) s 13. 302 Microsoft Corp v Marks (1995) 33 IPR 15

. See also Uniform Civil Procedure Rules 2005 (NSW) r 40.7.

303 J Hamilton, G Lindsay, M Morohan and C Webster, NSW Civil Procedure Handbook 2017, Lawbook Co, Sydney, 2017, [r 40.06.80].

Obedience and punishment

24.86 A party found to have been in contempt is liable to be punished by way of a fine or imprisonment. That party may also have its property sequestered.304 Punishment as retribution for the contemptuous conduct should be subordinate to the primary interest of requiring the contemnor to comply with a court order.305 Put another way, the rights of the party in whose favour a court order is made are not protected merely by imposing a penalty on the contemnor. The jurisdiction of the court is remedial in nature. In Australian Consolidated Press Ltd v Morgan ,306 Windeyer J explained: But committal and sequestration continue today as a means of enforcing compliance with the decrees of a court of equity. They are used to compel obedience rather than to punish disobedience; for equity acts in personam, and historically the purpose of the processes of the Court of Chancery was to rectify and reform the conscience of the wrongdoer.

304 See 24.93. 305 Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261 at [136]

.

306 (1965) 112 CLR 483 at 498

24.87

.

Page 42 of 52 Chapter 24 Enforcement and Contempt The penalty imposed by the court may either be fixed, such as a one-off fine or term of imprisonment, or indefinite, such as a fine imposed for each day of disobedience.307 An indefinite penalty is appropriate where the contemnor is required to take some action (or refrain from some action) under a judgment or order in the future and there is a reasonable prospect that the contemnor will comply.308 Such a penalty will apply until such time as the contemnor purges its contempt (that is, complies with or undertakes to comply with the relevant order). Alternatively, in some jurisdictions, the penalty (such as imprisonment) may be suspended on the condition

Page 946 that the contemnor take steps to comply with the relevant order.309 An indefinite or suspended penalty is a useful tool in compelling the obedience of a contemnor by creating a disincentive from non-compliance with a judgment or order. As the Second Circuit of the United States Court of Appeals remarked in Re Nevitt , contemnors ‘carry the keys of their prison in their own pockets’.310 If, however, the contemnor is unwilling to take any further action to comply with the relevant judgment or order, or the committal relates only to past conduct, a fixed penalty to censure the contemnor may be appropriate. The purpose of such a penalty is to protect the effective administration of justice and to vindicate the judicial authority.311 The punishment reflects the seriousness of the conduct of the contemnor in defying a court order, regardless of any private interests protected in the order.312 While earlier authorities took the approach that a contemnor may be punished even if the other party does not wish to take any further action,313 the view in more recent authorities is that there is no public benefit in compelling or punishing the contemnor where the other party does not insist on enforcing a judgment or order against the contemnor.314

307 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108–15 per Gibbs CJ, Mason, Wilson and Deane JJ. For discussion, see C J Miller, Contempt of Court, 3rd ed, Oxford University Press,2000, 2.16–2.17. 308 Danchevsky v Danchevsky [1974] 3 All ER 934 at 937

per Lord Denning MR.

309 for example, Court Procedures Rules 2006 (ACT) r 2506(4); Supreme Court Rules 1970 (NSW) Pt 55 r 13(3); Supreme Court Rules (NT) r 75.11(4); Supreme Court Civil Rules 2006 (SA) r 306(6)(b); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(4). 310 (1902) 117 Fed Rep 448 at 461. 311 Australian Design Council v Borello (1989) 17 IPR 389 (FCA) at 395 per French J; Witham v Holloway (1995) 183 CLR 525 at 533

per Brennan, Deane, Toohey and Gaudron JJ.

312 Witham v Holloway (1995) 183 CLR 525 at 533

per Brennan, Deane, Toohey and Gaudron JJ.

313 Canadian Transport v Alsbury (1952) 7 WWR (NS) 49 at 75 (1995) 183 CLR 525 at 533

per Sidney Smith JA, referred to in Witham v Holloway

per Brennan, Deane, Toohey and Gaudron JJ.

314 Attorney-General v Times Newspapers Ltd (Sunday Times Case) [1974] AC 273 Australian Design Council v Borello (1989) 17 IPR 389 (FCA) at 396 per French J.

(HL) at 307–8 per Lord Diplock;

24.88 In Burwood Council v Ruan ,315 Biscoe J held that, for the purpose of punishment, contemptuous conduct fell into one of three classes: technical, wilful, and contumacious. His Honour said: Technical contempt is where disobedience of a court order (or undertaking to the court) is casual, accidental or unintentional. Wilful contempt is where the disobedience is more than that, but is not contumacious. Contumacious contempt is where there is a specific intention to disobey a court order or undertaking to the court, which evidences a conscious defiance of the court’s authority. Although a contempt may be established, in the circumstances of the case the court may decide not to make any order. The element of intention is relevant to whether any order should be made and, if so, to punishment.

Page 43 of 52 Chapter 24 Enforcement and Contempt

315 [2008] NSWLEC 167 at [7] [2017] FCA 522 at [25]

, applied in Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) per Tracey J. See also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2)

[2015] NSWSC 1622 at [9]–[11]

per Rothman J.

24.89 Similar to the process of sentencing for criminal offences, the court may take into account a number of factors in determining what action should be taken in relation to contempt. In Australian Securities and Investments Commission v Michalik ,316 Palmer J said that these factors included:

Page 947   (a) the seriousness of the contempt; (b) the motivation for the contempt; (c) whether the contemnor was aware of the consequences of its conduct; (d) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; (e) whether the contempt was committed in the context of a proceeding in which there was an allegation of a crime or conduct ‘seriously prejudicial to the public interest’; (f)

whether the contemnor intended to receive, or had in fact received, a benefit or gain from the contempt;

(g) whether the contemnor has expressed any genuine remorse; (h) the general character of the contemnor, including whether the contemnor has previously breached any court order or has been convicted of any crimes; (i)

what punishment is required to deter the contemnor and others who may be minded to commit contempt from disobeying court orders; and

(j)

what punishment is required to express the court’s denunciation of the contempt.

It must be stressed that this list is not exhaustive.317 The state of mind of the contemnor is a factor which may be treated as either a mitigating or an aggravating factor.318 Accordingly, a contemnor is exposed to a higher sanction if its conduct was reckless.319 Furthermore, an apology by the contemnor is a factor which the court may take into account if it is genuine and not made ‘at the last moment’.320

316 (2004) 52 ACSR 115; [2004] NSWSC 1259 at [29] [2011] VSC 448 at [5]

. See also Deputy Commissioner of Taxation v Gashi (No 3)

per Dixon J.

317 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2016] FCA 1437 at [40]–[42]

per Moshinsky J.

318 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 at [105]–[106] 319 Fortune Holding Group Pty Ltd v Zhang (No 3) [2018] VSC 22 at [54] 320 AGL Energy Ltd v Hardy (No 2) [2017] FCA 863 at [45]

. per Zammit J.

per O’Callaghan J.

Page 44 of 52 Chapter 24 Enforcement and Contempt

24.90 Generally, imprisonment is reserved for serious or intentional breaches.321 In Australian Securities and Investments Commission v Matthews ,322 the defendant was found to be in contempt when he published certain securities reports on the internet contrary to a Federal Court order. Windeyer J imposed a term of imprisonment of three months after finding that the defendant’s conduct was deliberate, was carried out with full knowledge of the consequences, and was done without any contrition. Where a reasonable alternative to imprisonment is available that will result in the compliance with the relevant order, that alternative must be taken.323 As an alternative to imprisonment, the court may impose a fine on the contemnor. In more serious circumstances, the court may sentence the contemnor to a term of imprisonment which is suspended on the condition, for example, that the contemnor comply with the order the subject of the contempt.324 Imprisonment will be appropriate where the

Page 948 contemnor has knowingly contravened a court order during the term of a suspended sentence for an earlier contempt.325

321 Putnin as liquidator of Maff Investments Pty Ltd (in liq) v Fuller (1991) 3 WAR 546

.

322 (1999) 17 ACLC 528 (NSWSC). 323 Danchevsky v Danchevsky [1974] 3 All ER 934 (EWCA Civ) at 937 per Lord Denning MR. 324 NSW Commissioner for Fair Trading v Rixon (No 3) [2014] NSWSC 1279 325 NSW Commissioner for Fair Trading v Rixon (No 4) [2018] NSWSC 1

. .

24.91 The court may have regard to previous analogous cases as a yardstick to determine the appropriate sanction for a contempt. Such has been the practice in cases of sentencing of criminal matters. However, three matters must be borne in mind.First, as the Full Court of the Federal Court observed in Kazal, sentences for contempt are less prevalent than sentences for criminal offences generally.326 As a result, it may be difficult for the court to have a sufficient sample of cases of contempt from which to identify an appropriate yardstick, particularly where the circumstances of each case may be so varied. Secondly, consistency with a yardstick should not take precedence over compelling compliance with the court order that has been breached. Thirdly, as the plurality in Hili v R held, consistency with previous cases does not require ‘numerical equivalence’.327 Looking only at sentencing statistics of previous cases provides little information about why those sentences were passed and the individual circumstances of each case.

326 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 at [113]

.

327 (2010) 242 CLR 520; [2010] HCA 45 at [48] per French CJ, Gummow, Hayne, Crennan and Bell JJ. See also R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]

24.92

per French CJ, Keane and Nettle JJ.

Page 45 of 52 Chapter 24 Enforcement and Contempt Unlike the position in England and Wales,328 there is no maximum penalty in respect of the sentencing for contempt in the Supreme Courts.329 However, there may be caps in relation to certain forms of contempt. For example, the enabling legislation of intermediate courts may impose a maximum penalty for instances of contempt in those courts.330 By way of further example, in those jurisdictions where non-compliance with an instalment order amounts to contempt, the term of imprisonment must not exceed the prescribed maximum.331

328 Contempt of Court Act 1981 (UK) s 14 (two years’ imprisonment). 329 Gallagher v Durack (1983) 45 ALR 53 at 60

per Murphy J.

330 for example, the District Court of New South Wales may not impose a term of imprisonment exceeding 28 days: District Court Act 1973 (NSW) s 199(7). 331 See, for example, Enforcement of Judgments Act 1991 (SA) s 5(7) where the maximum penalty is 40 days’ imprisonment.

Sequestration

24.93 The court may, in certain circumstances, enforce compliance with a court order by means of a writ of sequestration. The court may appoint a sequestrator to seize the entire property and assets belonging to the contemnor until compliance is achieved.332 The effect of sequestration is to deprive the contemnor of any power or authority to deal with its property and assets. The writ only provides the sequestrator a right to possession of the relevant assets. The sequestrator obtains no right to sell the

Page 949 assets, as in the case of a writ for the sale and seizure of property.333 Sequestration is used to enforce compliance with court orders; it is not intended to provide a remedy to another party.334 Given its severe nature, it is usually reserved for serious forms of contempt, and not accidental or unintentional contempt.335 It may also be used against an officer whose corporation is in contempt.336

332 Court Procedures Rules 2006 (ACT) r 2442(1)(a); Uniform Civil Procedure Rules 2005 (NSW) r 40.6; Supreme Court Rules (NT) r 66.5(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 898(1) ; Supreme Court Rules 2000 (Tas) r 876(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.05(1)(a). 333 See 24.25 ff. 334 Chapman v Honig [1963] 2 QB 502

.

335 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498

per Windeyer J.

336 ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875

.

Interstate judgments

24.94 Part 6 of the Service and Execution of Process Act 1992 (Cth) sets out a procedure for the enforcement of a judgment made in one state or territory (that is, the ‘place of rendition’)337 against a judgment debtor situated in another state or territory. Under s 105(1) of the Act, the judgment creditor may lodge for registration a sealed copy of the judgment with the prothonotary, registrar or other court officer of the court in the jurisdiction in which the judgment creditor is seeking to enforce the judgment. Once the judgment has been registered, it has the same force

Page 46 of 52 Chapter 24 Enforcement and Contempt and effect as if it was a judgment made in the court in which it is registered.338 In addition to any sum under the registered judgment, the judgment creditor may recover reasonable costs and expenses of, and incidental to, obtaining and lodging a copy of the judgment, and the costs and expenses reasonably incurred in attempting to execute the judgment in the court at the place of rendition or in another state.339 Interest is also payable on a judgment at the same rate or rates of the court of the place of rendition.340 A judgment debtor may apply for a stay against the enforcement of an interstate judgment.341

337 Service and Execution of Process Act 1992 (Cth) s 104. 338 Service and Execution of Process Act 1992 (Cth) s 105(2). 339 Service and Execution of Process Act 1992 (Cth) s 107(1). 340 Service and Execution of Process Act 1992 (Cth) s 108. 341 Service and Execution of Process Act 1992 (Cth) s 106. See 24.7 ff in relation to stays of execution.

Foreign judgments

24.95 A judgment creditor may, having obtained judgment in a foreign jurisdiction, wish to execute the judgment against assets held by the judgment debtor in Australia. A judgment made in a foreign jurisdiction does not, of itself, give rise to a right of execution in Australia. This is because the judgment has not been made within the jurisdiction. However, there are mechanisms available both under the common law and under statute for the recognition and enforcement of certain foreign judgments.342

Page 950

342 for a more comprehensive analysis of the enforcement of foreign judgments in Australia, see M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney,2013, Pt X.

Enforcement under the common law

24.96 Under the common law, a plaintiff may enforce a foreign judgment by bringing an action for a liquidated sum, relying on the judgment as imposing an obligation on the defendant to pay the judgment debt.343 An alternative path open to the plaintiff is to commence proceedings in Australia on the same cause of action as in the foreign court, and to rely upon the foreign judgment to prevent the defendant, by way of estoppel, from attempting to agitate any issues that have been taken or ought to have been taken in the foreign proceedings.344

343 Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300 Corp Pty Ltd [2008] NSWSC 1267 at [15] 344 Ainslie v Ainslie (1927) 39 CLR 381

; Xplore Technologies Corporation of America v Tough

per Rothman J. ; Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300

Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450 at [28]

; RDCW

per Rothman J; Xplore Technologies Corporation of

Page 47 of 52 Chapter 24 Enforcement and Contempt America v Tough Corp Pty Ltd [2008] NSWSC 1267 at [16] per Rothman J. In relation to the use of a foreign judgment to prevent a party relitigating an issue or a cause of action in Australia,see Chapter 26, 26.141 ff.

24.97 For a foreign judgment to be enforced in Australia under the common law, certain requirements must be satisfied. First, the plaintiff must establish that the foreign court had jurisdiction over the defendant,345 which may be evidenced by the defendant submitting to the jurisdiction of that court.346 Territorial jurisdiction over a natural person will be established if that person was present in the territory when served with the originating process of the foreign proceedings, or at the time was a national of, or ordinarily domiciled in, the territory.347 Territorial jurisdiction over a corporation will be established if the corporation carried on a business in the territory at the time of the service of the originating process.348 Secondly, the foreign judgment must finally and conclusively settle the issues as between the parties in the foreign proceedings.349 In Schnabel v Lui ,350 Bergin J held that a foreign judgment would be final and conclusive if the judgment would be treated as res judicata.351 Judgment obtained by the default of the defendant is still capable of being final and conclusive,352 unless the foreign jurisdiction affords the defendant an unqualified right to have the judgment set aside.353 In such a case, the judgment becomes final and conclusive after the time for that right to be exercised has expired. Thirdly, the judgment debt in the

Page 951 foreign judgment must be for a sum certain.354 Fourthly, the parties in the Australian proceedings must be identical to the foreign proceedings.

345 Schnabel v Lui [2002] NSWSC 15 at [75]

per Bergin J.

346 Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300 Bergin J.

; Schnabel v Lui [2002] NSWSC 15 at [75]

per

347 Emanuel v Symon [1908] 1 KN 302 at 309 per Buckley LJ, cited in Centrebet Pty Ltd v Basland [2013] NTSC 59 at [160]

per Hiley J; Laurie v Carroll (1958) 98 CLR 310

348 Adams v Cape Industries plc [1991] 1 All ER 929 349 Nouvian v Freeman (1889) 15 App Cas 1

.

.

at 9

per Lord Herschell (HL); Armacel Pty Ltd v Smurfit Stone

Container Corporation (2008) 248 ALR 573; [2008] FCA 592 at [60] 350 [2002] NSWSC 15 at [77]

per Jacobson J.

, followed in Telesto Investments v UBS AG [2013] NSWSC 503 at [188]

per Sackar J.

351 See Chapter 26 in relation to res judicata. 352 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 353 Jeannot v Furst (1909) 25 TLR 424

.

.

354 Schnabel v Lui [2002] NSWSC 15 at [75]

per Bergin J.

24.98 Notwithstanding that a plaintiff may be able to satisfy the requirements for the recognition of a foreign judgment, there may be other grounds for the court to refuse to recognise or enforce the judgment. A denial to the defendant of natural justice by the foreign court, either because the defendant was not provided an opportunity to present its case, or the foreign court lacked impartiality, renders the foreign judgment unenforceable in Australia.355 A foreign judgment obtained by fraud is unenforceable.356 Furthermore, Australian courts will not enforce a judgment arising

Page 48 of 52 Chapter 24 Enforcement and Contempt out of a penal proceeding. Such a proceeding is one which has for its object the enforcement by the state, whether directly or indirectly, of punishment imposed for breaches of the law in the state.357 Similarly, an Australian court will not enforce a judgment debt based on a foreign revenue law.358

355 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 at [47]–[49]

per Edmonds J.

356 Ainslie v Ainslie (1927) 39 CLR 381 at 402 357 Huntington v Attrill [1893] AC 150

.

at 156

358 Peter Buchanan Ltd v McVey [1954] IR 89

per Lord Watson. .

Enforcement under the Foreign Judgments Act

24.99 The Foreign Judgments Act 1991 (Cth) establishes a regime for the registration and enforcement in Australia of judgments of certain foreign courts. The Act only applies to judgments made in courts of jurisdictions where, in the opinion of the Governor-General, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts.359 Such jurisdictions are described in the Foreign Judgments Regulations 1992 (Cth).360 Critically, where the Foreign Judgments Act 1991 (Cth) applies to a judgment, the application for recognition and enforcement may only be determined in accordance with the Act and not under the common law.361

359 Foreign Judgments Act 1991 (Cth) s 5(1). 360 Judgments of superior courts such as those in provinces of Canada, France, Israel, Italy, Singapore, Switzerland, and the United Kingdom are enforceable in Australia: see the Schedule to the Foreign Judgments Regulations 1992 (Cth). 361 Foreign Judgments Act 1991 (Cth) s 10(1).

24.100 Under s 6 of the Foreign Judgments Act 1991 (Cth), a judgment creditor of a foreign judgment may apply to register the judgment in an Australian court, provided that the judgment is final and conclusive.362 A foreign judgment is final and conclusive despite it being the subject of an appeal, although this may provide the judgment debtor with a basis to seek a stay of execution pending the outcome of the appeal.363 Upon registration, the foreign judgment has the same force and effect of a judgment made in Australia.364

Page 952

362 Foreign Judgments Act 1991 (Cth) s 5(4)(a). 363 Foreign Judgments Act 1991 (Cth) s 8. 364 Foreign Judgments Act 1991 (Cth) s 6(7).

Page 49 of 52 Chapter 24 Enforcement and Contempt

24.101 Section 7 sets out the grounds to have the registration of a foreign judgment set aside. These grounds include: (a) that the judgment was registered for an amount greater than the amount payable under it at the date of registration; (b) that the judgment was registered in contravention of the Act; (c) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; (d) that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; (e) that the judgment was obtained by fraud; (f)

that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court;

(g) that the rights under the judgment are not vested in the person by whom the application for registration was made; (h) that the judgment has been discharged; (i)

that the judgment has been wholly satisfied; or

(j)

that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy.365

365 See 24.103 in relation to the enforcement of New Zealand judgments generally.

24.102 The issue of whether the original court in which the foreign judgment was rendered had jurisdiction to hear the matter, or whether the judgment was obtained by fraud, is to be determined according to the law of the place of registration.366 Registration of a foreign judgment is unlikely to be set aside for fraud if the judgment debtor is unable to establish that there has been some fresh evidence that was not available to be presented to the original court. If such evidence was available, the judgment debtor must establish that it is unlikely that presentation of such evidence would have had an impact on the result of the proceeding.367 A foreign judgment is not against public policy merely because it does not accord with Australian law,368 nor should the ground be used as an opportunity to revisit the merits of the foreign judgment.369 However, where there has been a ‘substantial injustice, either because of existence of a repugnant law or because of a repugnant application of the law in a

Page 953 particular’, the court may refuse to enforce a foreign judgment, but only if the offence to public policy is ‘fundamental and of a high order’.370

366 De Santis v Russo [2001] QCA 457 at [9] 367 Doe v Howard [2015] VSC 75 at [124]

per McPherson JA (with Thomas and Cullinane JJA agreeing). per Forrest J.

Page 50 of 52 Chapter 24 Enforcement and Contempt 368 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 at [77] Anderson JJ agreeing). 369 Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 at [16]

per Bleby J (Vanstone and

per Martin CJ.

370 Jenton Overseas Investment Pty Ltd v Townsing (2008) 21 VR 241; [2008] VSC 470 at [22]–[23] applied in Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 at [21]

per Whelan J,

per Martin CJ.

New Zealand judgments

24.103 Part 7 of the Trans-Tasman Proceedings Act 2010 (Cth) provides a simplified procedure for the recognition and enforcement in Australia of judgments made by New Zealand courts (termed ‘NZ judgments’).371 The legislation implements Australia’s obligations under the Trans-Tasman Agreement between the Government of Australia and the Government of New Zealand on Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008. As will be evident from the following, the regime is similar to the arrangements for the enforcement of interstate judgments by state and territory courts.

371 Trans-Tasman Proceedings Act 2010 (Cth) s 4.

24.104 For an NZ judgment to be enforceable in Australia, it must be registered.372 A person (an ‘entitled person’) in whose favour an NZ judgment was given, or in whom rights under the judgment become vested (such as by way of assignment), is entitled to apply to register the judgment in either:373 (a) a superior Australian court, being the Federal Court, Family Court of Australia, or a Supreme Court of a state or territory; or (b) an inferior Australian court, being a court that is not the High Court or a superior court, provided that the inferior court has the power to give the relief in the judgment.

372 Trans-Tasman Proceedings Act 2010 (Cth) s 65. 373 Trans-Tasman Proceedings Act 2010 (Cth) s 67(1). This applies to the registration of an NZ judgment in a civil proceeding. An entitled person may apply to register a judgment in respect of a civil pecuniary penalty aside from those issued under the Commerce Act 1986 (NZ) and which are described as ‘NZ market proceedings’: s 67(2). See s 4 for the definition of ‘superior Australian court’ and ‘inferior Australian court’.

24.105 On receiving an application, the relevant Australian court must register the NZ judgment, which thereby becomes enforceable in Australia.374 The NZ judgment is only enforceable to the extent that it is capable of enforcement in the New Zealand court which made the judgment.375 In addition to the enforcement of the judgment, the entitled person may recover costs and expenses reasonably incurred by the entitled person to register the NZ judgment and attempt to enforce the NZ judgment in the original court in New Zealand which made the judgment.376 The entitled

Page 51 of 52 Chapter 24 Enforcement and Contempt person is also entitled to any interest on a sum of money payable under the NZ judgment at the same rate as that which would have been provided in the court which made the NZ judgment.377

Page 954

374 Trans-Tasman Proceedings Act 2010 (Cth) s 68. 375 Trans-Tasman Proceedings Act 2010 (Cth) s 75. 376 Trans-Tasman Proceedings Act 2010 (Cth) s 77. 377 Trans-Tasman Proceedings Act 2010 (Cth) s 78.

24.106 On the application by person against whom a registered NZ judgment is made (a ‘liable person’), an Australian court may only set aside the NZ judgment on one of the following grounds:378 (a) the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; (b) the judgment was registered in contravention of this Act; or (c) both of the following subparagraphs apply: (i)

the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property;

(ii) that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand. It has been held that the threshold to setting aside a judgment on the ground of public policy is high and may encompass a ‘gross denial of procedural fairness according to the relevant principles in this jurisdiction’.379 The application to set aside must be made within 30 working days in the Australian court, commencing from the day the liable person was given notice of the registration, which is subject to an application for an extension by the liable person.380

378 Trans-Tasman Proceedings Act 2010 (Cth) s 72(1). 379 LFDB v SM (No 3) [2017] FCA 80 at [102] [43]

per Griffiths J, upheld on appeal in LFDB v SM [2017] FCAFC 178 at

.

380 Trans-Tasman Proceedings Act 2010 (Cth) s 72(2).

24.107 On an application by the liable person, an Australian court may stay the enforcement of a registered NZ judgment so that the liable person may set aside, vary or appeal the judgment to a New Zealand court.381 The stay will be granted on the condition that the liable person prosecute its appeal or application to set aside or vary with expedition, and may be subject to a requirement that the liable person provide security pending the determination of the application or appeal.382 An application for stay must be brought within 30 working days after the day the liable person was given notice of the registration of the NZ judgment, or such other time that the court considers appropriate.383

Page 52 of 52 Chapter 24 Enforcement and Contempt

381 Trans-Tasman Proceedings Act 2010 (Cth) s 76(2)(a)(i). 382 Trans-Tasman Proceedings Act 2010 (Cth) s 76(2). 383 Trans-Tasman Proceedings Act 2010 (Cth) s 76(3).

End of Document

Chapter 25 Appeals Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 25 — Appeals

Chapter 25 Appeals Page 955 [Current to May 2018]

Introduction

25.1 The appeal system is a creature of statute — or in the case of the High Court of Australia, the Constitution — and hence appellate procedures are determined by statute.1 The primary functions of an appellate court are to correct errors in the decisions or reasoning of trial courts and to develop the law.2

1

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619 per Mason J (Barwick CJ and Stephen J agreeing at 618); [1976] HCA 62; DJL v Central Authority (2000) 201 CLR 226 at 245–6; [2000] HCA 17 at [39]–[40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Eastman v R (2000) 203 CLR 1 at 11–12 [11]–[15] per Gleeson CJ, 57–58 [175] per Gummow J, 82 [248] per Kirby J; [2000] HCA 29; Fox v Percy (2003) 214 CLR 118 at 124; [2003] HCA 22 at [20]

2

per Gleeson CJ, Gummow and Kirby JJ.

Australian Law Reform Commission, The Judicial Power of the Commonwealth, Report No 92, 2001, p 302 [16.4].

25.2 The appellate realm is constrained by the need for finality of litigation and certainty of law. In jurisdictions with an overriding objective,3 finality of litigation promotes the overriding objective through preservation of court resources and prevention of further delay. Even the need for clarification and development of the law can point in favour of limiting appeal opportunities,since an excess of judicial views on points of law may create uncertainty in the law. Similarly, the greater the number of appeals to which a judgment can be subjected, and the more intrusive the appellate interference, the more likely it is that judicial views will differ and the less predictable the outcome of litigation will become. Proportionality, which ought to guide all jurisdictions, especially those with an overriding objective, dictates that once the parties have had an adequate opportunity to present their respective cases and a judicial decision has been made, further judicial investigation by way of appeal should be reserved for those cases that really require it. On the other hand, appellate regimes, especially at the intermediary appellate level, operate as a check on errors, which in turn encourages public confidence in the substantive accuracy of judgments and facilitates consistency in the application of the law in lower courts.

Page 956

Page 2 of 43 Chapter 25 Appeals 3

Tasmania does not have a general overriding objective clause, and there is no overriding objective in the High Court Rules 2004 (Cth).

25.3 The Bowman Report in the UK4 drew attention to the two different purposes served by the appeal process, which are readily transferable to the Australian context: a private purpose and a public one. The private purpose represents the litigant’s interest in protecting his or her rights by obtaining a correction of judicial error. The public purpose focuses on the need to clarify and develop the law, to maintain high standards of adjudication, and more generally to promote public confidence in the administration of justice. The distinction between private and public interests is, however, not altogether clear-cut. Individual litigants may be motivated by a desire to obtain clarification of the law rather than being concerned only with protecting their immediate rights. Equally, the public interest is not confined to the clarification of the law but extends to the avoidance of error, even if it affects only individual litigants, because public confidence in the administration of justice depends on the public perception that the courts can put right their own mistakes and avoid injustice.

4

Sir Jeffery Bowman, Report to the Lord Chancellor by the Review of the Court of Appeal (Civil Division), 6 November 1997, Lord Chancellor’s Department.

25.4 It is clear that the private and public purposes of the appellate regime are often in tension. On the one hand is the desire to achieve correct outcomes and on the other is the desire to promote finality of litigation and minimise the cost and delay of dispute resolution. In his Interim Report on Access to Justice (1995), Lord Woolf quoted, tellingly for present purposes, from a 1970 broadcast by Lord Devlin: [I]s it right to cling to a system that offers perfection for the few and nothing at all for the many? Perhaps: if we could really be sure that our existing system was perfect. But of course it is not. We delude ourselves if we think that it always produces the right judgment. Every system contains a percentage of error; and if by slightly increasing the percentage of error, we can substantially reduce the percentage of cost, it is only the idealist who will revolt.

25.5 In each Australian jurisdiction, generally speaking, an appeal can be brought from a final judgment made at first instance by parties to the proceedings.5 Non-parties who are affected by the relief sought in the appeal or in maintaining the impugned judgment may be joined by the court as parties to the appeal.6 Proportionality dictates that once the parties have had an adequate opportunity to present their case and a judicial decision has been taken, any further judicial investigation by way of appeal should be reserved for those cases that really require it. As will be seen, the appellate systems in Australia often focus on proportionality by imposing requirements of leave to appeal from certain decisions. A minimalist approach to appeal governs both the

Page 957 availability of a full appeal process and the extent of appellate interference where an appeal is entertained. The overarching principle of such a minimalist approach is that appeals and appellate interference must be kept to a minimum while remaining compatible with the need to avoid injustice.

Page 3 of 43 Chapter 25 Appeals 5

See Federal Court of Australia Act 1976 (Cth) s 24(1); Supreme Court Act 1933 (ACT) s 37E(2); Supreme Court Act 1970 (NSW) s 101(1)(a); Supreme Court Act (NT) s 51(1); Supreme Court of Queensland Act 1991 (Qld) s 62(1); Supreme Court Act 1935 (SA) s 50(1); Supreme Court Civil Procedure Act 1932 (Tas) s 40(1); Supreme Court Act 1986 (Vic) s 10; Supreme Court Act 1935 (WA) s 58.

6

See Federal Court Rules 2011 (Cth) r 36.31; Court Procedures Rules 2006 (ACT) r 5404; Uniform Civil Procedure Rules 2005 (NSW) r 51.4; Supreme Court Rules (NT) rr 83.07 and 85.11; Uniform Civil Procedure Rules 1999 (Qld) rr 749 and 750; Supreme Court Civil Rules 2006 (SA) r 283; Supreme Court Rules 2000 (Tas) rr 184 and 672; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.03(4).

25.6 A minimalist approach shapes the nature of appellate jurisdiction. An appeal is not meant to provide a second round of the adversarial process, in which the parties argue their case once more before a higher court. Accordingly, as long as the lower court has not committed an obvious mistake of fact, or an error of principle, or followed a seriously defective procedure, an appeal court will not generally disturb its decision. The policy of restricting appellate powers, in the main, to those cases where some error can be shown on the part of the court below is founded not only on the need to economise the use of resources, it is also founded on the belief that lower courts should bear the main responsibility for the conduct of litigation and its outcome. As will be seen, however, in certain appeals, known as hearings de novo, no error on the part of the court below need be established.

Deference to first instance factual findings

25.7 An appeal court does not normally hear witnesses and will not lightly interfere with a lower court’s assessment of witness credibility, unless the lower court drew a clearly erroneous and improbable inference.7 The trial judge, who saw and heard the witnesses, is best placed to assess credibility.8 It has therefore been held that the appellate court should only reverse a finding of fact when it is convinced that it is wrong, not merely when it would have reached a different conclusion.9 Thus, in an appeal by way of strict appeal, as to which see below,10 the appellate court will interfere with a lower court’s factual findings only where it considers that the decision was inconsistent with the evidence.

7

See Fox v Percy (2003) 214 CLR 118 at 128

[28]–[29] per Gleeson CJ, Gummow and Kirby JJ.

8

See Wilton v Farnworth (1948) 76 CLR 646 at 654–5

per Rich J (Dixon J agreeing at 656); [1948] HCA 20;

Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99 at 100, 106); [1991] HCA 52

; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)

(1999) 73 ALJR 306 at 330; [1999] HCA 3 at [89]–[92] 9

per Mason CJ (Deane J and McHugh J agreeing

.

See Edwards v Noble (1971) 125 CLR 296 at 303–4; [1971] HCA 54

per Barwick CJ.

10 See 25.15 below.

25.8 When it comes to assessing the reliability of witnesses, the lower court which heard and saw the witnesses has a clear advantage over the appeal court. But this advantage disappears when it comes to drawing inferences from documentary or circumstantial evidence. Nonetheless, appeal courts exercise restraint in interfering even with such lower court conclusions. In Assicurazioni Generali Spa v Arab Insurance Group,11 Clarke LJ said:

Page 4 of 43 Chapter 25 Appeals

The approach of the court to any particular case will depend upon the nature of the issues … determined by the judge. This has been recognised recently in, for example,

Page 958 Todd v Adam [2002] EWCA Civ 509 , [2002] 2 All ER (Comm) 1 and Bessant v South Cone Incorporated [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. … Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.

11 Assicurazioni Generali Spa v Arab Insurance Group (BSC) [2002] EWCA Civ 1642; [2003] 1 WLR 577

at [14]–[16]

.

25.9 This view draws attention to the difference between, on the one hand, conclusions based on personal impressions formed by the lower court and, on the other hand, purely logical inferences drawn from circumstances and, one may add, conclusions regarding questions of law. It also acknowledges the existence of infinite gradations between these two extremes. It is only natural that where the lower court exercised discretion or applied a flexible standard, the appeal court should exercise restraint,because the responsibility of exercising discretion or applying a general standard is entrusted to the lower court not to the appeal court. This is of course also true of issues involving the application of inflexible legal principles, which are a matter of ‘either or’, except that with regard to such issues there is less room for intermediate positions between right and wrong. For instance, a contract for the sale of land was either concluded or was not concluded and, if it was concluded,it either included a certain parcel of land or it did not include it. Similarly, the calculation of interest due on a loan or on damages is either right or wrong. Since there is no room for intermediate positions between right and wrong in such cases,as soon as the appeal court disagrees with the lower court’s decision it must conclude that the lower court was wrong.

25.10 If the appeal court cannot conclude that the lower court’s inference from the primary facts was wrong, in the sense that it fell outside the range of inferences that a reasonable court could make, the appeal court should allow the

Page 5 of 43 Chapter 25 Appeals lower court’s decision to stand. The nature of the appellate evaluation of the lower court’s decision will, of course, vary in accordance with the type of judgment that the lower court was called upon to make and the type of appeal that the appellate court is conducting.

Page 959

Types of appeals

25.11 In Eastman v R ,12 McHugh J recognised that a number of types of appeal exist, including: (1) an appeal in the true sense, or strict appeal; (2) an appeal by rehearing on the evidence before the trial court; (3) an appeal by rehearing on the evidence that was presented before the trial court and further evidence that the appellate court admits; and (4) a hearing de novo. Since the appeal system is a creature of statute, the existence of a right of appeal and form of appeal depend on the terms of the statute which provides the right. The different forms of appeal were summarised by Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz 13 in the following way: For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes,between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas,on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.

12 (2000) CLR 1 at 40–1; [2000] HCA 29 at [130] 13 (2000) 203 CLR 172 at 180–1

.

[23].

25.12 For present purposes, it is sufficient to categorise the forms of appeal in Australian jurisdictions into: (1) hearing de novo; (2) rehearing; and (3) strict appeal, where a hearing de novo is the most intrusive form of appellate interference and a strict appeal is the least intrusive form of appellate interference. A hearing de novo occurs when a court hears a matter entirely afresh, without the need for an appellant to establish error in the judgment below. By contrast, an appeal court conducting an appeal by rehearing can only exercise appellate powers when the appellant establishes that there was error in the decision below. In an appeal by rehearing, the appellate court determines the matter based on the law as it stands at the time of the appeal. By contrast, in a strict appeal, the appellate court considers only whether the decision below was correct at the time of that decision, and no new evidence can be admitted.

Hearing de novo

25.13

Page 6 of 43 Chapter 25 Appeals A hearing de novo occurs when the appellate court hears the matter afresh, with a decision given on the evidence presented at the appeal hearing.14 Where the right to appeal takes the form of a hearing de novo, the appellate court is required to

Page 960 exercise its powers regardless of whether there was error at first instance.15 Appeals by way of hearing de novo are limited to certain situations; examples include appeals to the Family Court of Australia from courts of summary jurisdiction,16 review of a registrar’s exercise of power under the Federal Court of Australia Act 1976 (Cth),17 and, in effect, merits review under the Administrative Appeals Tribunal Act 1975 (Cth).18 Appeals by way of hearing de novo involve duplication of resources, and may be costly and time inefficient for the parties and the court system. Perhaps in recognition of this duplication, courts are often empowered to receive evidence that was before the court or tribunal below, subject to admissibility, even where the appeal is by way of hearing de novo.

14 R v Pilgrim (1870) LR 6 QB 89

at 95–6

per Lush J; Coal and Allied Operations Pty Ltd v Australian Industrial

Relations Commission (2000) 203 CLR 194 at 203; [2000] HCA 47 at [13] JJ.

per Gleeson CJ, Gaudron and Hayne

15 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204; [2000] HCA 47 at [14]

per Gleeson CJ,Gaudron and Hayne JJ.

16 Family Law Act 1975 (Cth) s 96(4). 17 Mazukov v University of Tasmania [2004] FCAFC 159 at [24] Act.

, interpreting s 35A(6)of the Federal Court of Australia

18 See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 298–9 Hayne and Heydon JJ, 327 [141] per Kiefel J; [2008] HCA 31.

[35]–[37] per Kirby J, 315 [100] per

Rehearing

25.14 In a rehearing, the appeal court addresses the issues based on the law as it stands at the time of the appeal.19 Unlike a hearing de novo, an appeal by rehearing is only enlivened when the appellant can demonstrate that the impugned order is the result of a legal, factual or discretionary error.20 Proceedings before intermediate appellate courts are commonly by way of rehearing,21 provided the appellant establishes the requisite error in the decision below to enliven appellate powers. While new evidence is not generally prohibited on an appeal by way of rehearing, some courts condition the acceptance of evidence that was available to the parties below at the time of the first instance decision on leave of the court.

19 See Edwards v Noble (1971) 125 CLR 296 at 304; [1971] HCA 54 (2002) 213 CLR 1 at 87; [2002] HCA 28 at [69]–[71]

per Barwick CJ; Western Australia v Ward

per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

20 See CDJ v VAJ (1998) 197 CLR 172 at 201–2 [11] per McHugh, Gummow and Callinan JJ. 21 See, for example, Supreme Court Act 1970 (NSW) s 75A(5); Supreme Court Civil Rules 2006 (SA) r 286(1); Supreme Court Rules 2000 (Tas) r 657(1); Supreme Court (Court of Appeal) Rules 2005 (WA) r 25; Western Australia v Ward (2002) 213 CLR 1 at 87; [2002] HCA 28 at [69]–[71]

Strict appeal

per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

Page 7 of 43 Chapter 25 Appeals

25.15 An appeal by way of strict appeal consists of scrutiny of the lower court’s decision.22 An appellate court hearing a strict appeal must decide the appeal based on the law and facts as they stood when considered by the court below.23 The lower court’s decision will be disturbed by the appeal court only if it was wrong or involved a serious irregularity. As will be noted, one salient difference between a strict appeal and

Page 961 an appeal by way of rehearing is that in an appeal by way of rehearing the appellate court considers the law at the time of the appeal, rather than the law at the time of the impunged decision.

22 Ponnamma v Arumogam [1905] AC 383

at 388

; Victorian Stevedoring (1931) 46 CLR 73 at 109

23 Allesch v Maunz (2000) 203 CLR 172 at 181; [2000] HCA 40 at [23] JJ.

.

per Gaudron, McHugh, Gummow and Hayne

25.16 A strict appeal is not intended to re-try the issues but merely to examine the lower court’s decision for errors or irregularities. Where an appeal is confined to a review of the lower court’s decision, as long as the lower court has not committed an obvious mistake of fact, or an error of principle, or followed a seriously defective procedure, the appeal court will not disturb its decision. A court hearing an appeal by way of strict appeal will not allow new evidence to be adduced,24 which is another difference between a strict appeal and an appeal by rehearing as described above.

24 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109–10; [1931] HCA 34 Dixon J.

per

25.17 Appeals to the High Court of Australia are by way of strict appeal:25 the question on appeal is only whether the impugned judgment was in accordance with the law as it existed at the time the impugned judgment was made.26 In Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan ,27 the appellant sought to set aside a conviction under the Waterside Employment Regulations 1931 (Cth). The Waterside Employment Regulations had been disallowed by the Senate after the appellant’s conviction but before the matter came before the High Court. Once the Waterside Employment Regulations had been disallowed, meaning that they were no longer in force, the appellant could not have been convicted of an offence provided for by the Regulations. The High Court held that, since the conviction was correct according to the law and evidence before the police magistrate at the time the appellant was convicted, the conviction could not be set aside. Hence, it can be seen that in an appeal by way of strict appeal it is the law as it applied at the time of the impugned decision that is considered by the appellate court. Had the appeal in Victorian Stevedoring been instead by way of rehearing, it would have been possible to set the conviction aside on the basis that, following the disallowance of the Regulations, there was no offence at the time of the appeal.

Page 8 of 43 Chapter 25 Appeals 25 See Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931]HCA 34 26 See Mickelberg v R (1989) 167 CLR 259 at 271 Gaudron JJ; Eastman v R (2000) 203 CLR 1 at 10–11 27 (1931) 46 CLR 73; [1931] HCA 34

.

per Mason CJ, 274 per Brennan J, 298–9 per Toohey and [9] per Gleeson CJ.

.

25.18 Although new evidence cannot be accepted in a strict appeal an appellate court may, somewhat exceptionally, hear an issue of law that was not raised before the lower court.28 On occasion, a point of law not raised below will be considered in an appeal by way of strict appeal, provided that the point can be considered by reference to the evidence that was before the lower court.29 Where all the facts have been established beyond controversy or where the point is one of construction or of law, a court of appeal may find it expedient and in the interests of justice to entertain the point.30

Page 962 The reluctance to allow a point of law not raised below to be raised on appeal, even where it could not have been met by evidence, is an aspect of a more general principle of finality of litigation, which dictates that litigants who fail to adduce evidence or raise arguments when their dispute comes before the court should not be entitled to trouble the opponent further or take further court time.

28 See Crampton v R (2000) 206 CLR 161 at 173–4 [21] per Gleeson CJ, 183 [47] per Gaudron, Gummow and Callinan JJ, 204 [116] per Kirby J, 216 [155] per Hayne J; [2000] HCA 60. 29 Crampton v R (2000) 206 CLR 161 at 170–1 ; [2000] HCA 60 at [6]–[10]

per Gleeson CJ.

30 Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 Dawson JJ.

per Mason CJ, Wilson, Brennan and

Appeals from interlocutory judgments

25.19 Leave is generally required to appeal from interlocutory judgments.31 But as the High Court has noted, ‘[t]he distinction between final and interlocutory judgments is not always easy to draw’.32 The test applied ‘for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties’.33 It is the legal, not practical, effect of the judgment that is considered when determining whether a judgment is final or interlocutory.34

31 See, for example, Federal Court of Australia Act 1976 (Cth) s 24(1A); Court Procedures Rules 2006 (ACT) r 5310; Supreme Court Act 1970 (NSW) s 101(e); Supreme Court Act (NT) s 53; Supreme Court Civil Rules 2006 (SA) r 288(1); Supreme Court Act 1986 (Vic) s 17A(4)(b); Supreme Court Act 1935 (WA) s 60(1)(f); Australian Telecommunications Corporation v Barnes (1996) 125 FLR 335 32 Licul v Corney (1976) 180 CLR 213 at 225; [1972] HCA 6

.

per Gibbs CJ.

33 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 [1981] HCA 20

per Gibbs CJ, 256 per Mason J;

; Bienstein v Bienstein (2003) 195 ALR 225 at 230; [2003] HCA 7 at [25]

.

Page 9 of 43 Chapter 25 Appeals 34 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248

per Gibbs J, 256 per Mason J.

25.20 By way of example, it has consistently been held that an appeal from a default judgment is an appeal from an interlocutory order because there is an opportunity for an application to set the judgment aside to be made, despite the fact that often such an opportunity will be theoretical only and in practical effect the default judgment will be final.35 It is the rights of the parties in the substantive proceedings that are relevant to the question of whether an order is final or interlocutory. In Bienstein v Bienstein ,36 the purported appellant argued that an appeal against the refusal of a judge to recuse himself based on allegations of actual or perceived bias was an appeal against a final decision because the purported appellant was prevented from making a further application for removal. The High Court held that:37 In our view, neither of the orders made by Hayne J finally determines the rights of the parties. The decision of Hayne J does not determine the rights of Mrs Bienstein, her former husband or the child of their marriage in the principle cause pending between them.

35 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 36 (2003) 195 ALR 225 at 230–1

per Gibbs J.

[27]–[28].

37 (2003) 195 ALR 225 at 231 [28].

No appeal on hypothetical issues

25.21 Appellate courts will not generally hear points of law that have become moot.38 As a matter of general principle, the courts only entertain live issues, the determination

Page 963 of which affects the rights of the parties to the dispute. They do not pronounce on purely theoretical questions that are of no immediate consequence for the parties’ rights.39

38 See Re Judiciary Act (1921) 29 CLR 257 at 265–6; [1921] HCA 20 Starke JJ; Shire of Yarra Ranges v Russell (2009) 25 VR 560 at 567

per Knox CJ, Gavan Duffy, Powers, Rich and [27] per Redlich JA, 568 [34] per Warren CJ.

39 See, for example, Sun Life Assurance Co of Canada v Jervis [1944] AC 111

; [1944] 1 All ER 469 (HL)

; Bass v

Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355 [35], 357 [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9; R v Secretary for the Home Department; Ex parte Salem [1999] 1 AC 450

25.22

; [1999] 2 All ER 42 (HL)

.

Page 10 of 43 Chapter 25 Appeals There is a line of authority, however, suggesting that an appellate court has discretion to continue to hear, and to determine, an appeal that, although instituted regularly, has been rendered moot due to intervening circumstances.40

40 See Bonan v Hadgkiss (2007) 160 FCR 29 at 32 for Disability Services [2011] NSWCA 253 at [13] NSWCA 409 at [32]

[10]–[11]; People with Disability Australia Incorporated v Minister ; Jardine and Jardine Investments Pty Ltd v Metcash Ltd [2011]

; Attorney-General (NSW) v XY [2014] NSWCA 466 at [118]

.

25.23 In People with Disability Australia Incorporated v Minister for Disability Services ,41 Beazley JA (with whom Allsop P and Handley AJA agreed42) held43 that one factor which would cause a court to determine the matter despite the fact that any decision will be moot so far as the particular controversy between the parties is concerned is where the decision the subject of the appeal is likely to affect other cases. In that case, the appeal had been argued almost to its conclusion when it became apparent that the subject of the appeal had become moot. The Court of Appeal of the Supreme Court of New South Wales concluded that it ought to determine the question raised by the appeal on the basis that there was at least one other proceeding on foot where the question would be pivotal in the determination of the proceeding.44

41 [2011] NSWCA 253

.

42 [2011] NSWCA 253 at [1], [124]. 43 [2011] NSWCA 253 at [14]. 44 [2011] NSWCA 253 at [15].

25.24 In Bonan v Hadgkiss ,45 the Full Court of the Federal Court of Australia held that: There is no limit on the considerations which may be taken into account in determining whether to exercise the discretion to continue to hear and determine the appeal where the only live issue between the parties is the costs order made below. However, the authorities show that the courts have had regard to the following factors in determining whether to exercise the discretion: whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved (Al Masri 126 FCR 54); whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party’s reputation (Vanstone v Clark (2005) 147 FCR 299

); whether a finding of bad faith by the decision-maker has been

made (Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 ); whether there is doubt over the correctness of the decision under appeal (Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573 (IEL); Al Masri 126 FCR 54); the amount of judicial resources which would be taken in hearing and determining the appeal (IEL 98 FCR 573); and the costs issue (Long [2002] FCAFC 438; Al Masri 126 FCR 54; IEL 98 FCR 573).

Page 964

Page 11 of 43 Chapter 25 Appeals

45 (2007) 160 FCR 29 at 32

[10].

25.25 In Bonan, the Full Court of the Federal Court permanently stayed the appeal. It was held, inter alia, that the appeal was an inappropriate vehicle for the hearing and determination of the wider issues arising from the construction of the relevant Act.

Appeal from discretionary decisions

25.26 It is well established that where the appeal is from a discretionary decision an appellate court cannot intervene merely because it would have exercised the discretion differently, but must point to some improper exercise of the discretion.46 This principle of restraint is known as the House v The King principle or rule. In House v The King ,47 Dixon, Evatt and McTiernan JJ held that: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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 to properly exercise the discretion which the law reposes in the court of first instance. 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.

46 House v The King (1936) 55 CLR 499 at 504–5 ; [1936] HCA 40 per Dixon, Evatt and McTiernan JJ. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205; [2000] HCA 47 at [21]

per Gleeson CJ, Gaudron and Hayne JJ; Bondelmonte v Bondelmonte (2016) ALJR 402 at 407 [31].

47 (1936) 55 CLR 499 at 404–5; [1936] HCA 40

.

25.27 The House v The King principles are settled, and apply to restrain appellate intervention of all discretionary decisions unless statute or rules of a court provide that a discretionary decision is to be reviewed to a different standard.

Routes of appeal

25.28

Page 12 of 43 Chapter 25 Appeals The term ‘routes of appeal’ refers to the rules that specify the court to which an appeal must be made. As a general rule, an appeal lies to the next level of judge in the court hierarchy. An intermediate appellate court has jurisdiction to hear appeals from first instance decisions, or decisions from a lower court. The High Court of Australia is the ultimate appellate court and so sits at the apex of the appellate hierarchy.

25.29 Appeals from state Supreme Courts at first instance are generally to the Court of Appeal for the state, other than in South Australia and Tasmania, where appeals are to the Full Court of the state. Appeals from a first instance decision of the Federal Court of Australia are to the Full Court of the Federal Court of Australia. The High

Page 965 Court can hear appeals from both state and federal appellate courts. The structures of the appellate hierarchies in state and federal jurisdictions are briefly considered below.

25.30 Although of course dependent on the relevant rules and statutory provisions which govern their functions, the roles of the main courts and judicial officers can be summarised at a general level as follows. Registrars are generally responsible for the management and administration of the courts. They are often delegated quasi-judicial capacity or assigned certain roles by judges,48 especially with respect to case management and costs decisions. Registrars also perform functions assigned to them by statute or rules.49 Associate judges, formerly referred to as masters — and still referred to as masters in some jurisdictions — are primarily responsible for pre-trial and post-trial determinations, and deal in the main with interlocutory applications and case management decisions.50 Judges are responsible for first instance trials as well as some appeals from registrars, associate judges and tribunals. Judges are also responsible, as a Full Court or Court of Appeal, for appellate matters in jurisdictions that do not have separate appellate judges. Certain jurisdictions constitute the Court of Appeal by judges who sit only on appellate matters.51

48 See, for example, Civil Procedure Act 2005 (NSW) s 13; Supreme Court Act 1986 (Vic) s 113C(1). 49 See, for example, Supreme Court Act 1970 (NSW) s 121; Uniform Civil Procedure Rules 1999 (Qld) r 452; Supreme Court Act 1935 (SA) s 7; Supreme Court Act 1986 (Vic) s 113L; Supreme Court Act 1935 (WA) s 155. See generally Bankruptcy Act 1966 (Cth); Native Title Act 1993 (Cth) Pt 5. See generally Federal Court Rules 2011 (Cth) Pt 3; Federal Court (Bankruptcy) Rules 2016 (Cth) r 2.02;Federal Court (Corporations) Rules 2000 (Cth) rr 16.1 and 16.2. 50 See, for example, Supreme Court Act 1933 (ACT) ss 39 and 45; Supreme Court Civil Rules 2006 (SA) r 15; Rules of the Supreme Court 1971 (WA) O 6 r 1, O 4 rr 1 and 5. 51 See New South Wales, Queensland, Victoria, Western Australia.

Australian Capital Territory

25.31 The registrar of the Supreme Court of the Australian Capital Territory is able to hear and determine a number of case management applications.52 Where an appeal is made from a decision of the registrar, it lies to a single judge of the Supreme Court of the Australian Capital Territory or to the associate judge of the Australian Capital Territory.53 The appeal from the decision of the registrar is by way of hearing de novo, although evidence that was before the registrar on the initial hearing may, subject to admissibility, be relied upon by the parties.54

Page 13 of 43 Chapter 25 Appeals

52 See Supreme Court Act 1933 (ACT) s 47; Court Procedures Rules 2006 (ACT) r 6250. 53 Court Procedures Rules 2006 (ACT) r 6256. 54 Court Procedures Rules 2006 (ACT) r 6256(4)–(5).

25.32 The associate judge of the Supreme Court of the Australian Capital Territory also has jurisdiction over many case management issues and can exercise the civil jurisdiction that is exercisable by a single justice of the Supreme Court.55 An appeal from a decision of the associate judge lies to the Court of Appeal of the Supreme Court of the Australia Capital Territory.56 Where the order of the associate judge was

Page 966 interlocutory, an appeal may only be brought with leave.57 Appeals on many case management issues can be heard by the Court of Appeal of the Australian Capital Territory constituted by a single justice.58

55 See Court Procedures Rules 2006 (ACT) r 6200. 56 Supreme Court Act 1933 (ACT) s 9(2). 57 See Supreme Court Act 1933 (ACT) ss 9 and 37E(4). 58 Supreme Court Act 1933 (ACT) s 37J.

25.33 An appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory also lies to the Court of Appeal of the Australian Capital Territory.59 An appeal to the Court of Appeal is by way of rehearing, with the powers of the appellate court being enlivened if the appellant can demonstrate with regard to all the evidence before the court that the order of the primary judge was the result of some error.60 Where the appeal is from an interlocutory order, an appeal from a decision of a single justice requires leave from the Court of Appeal of the Australian Capital Territory.61

59 Supreme Court Act 1933 (ACT) s 37E(2). 60 See Dunstan v Highman (2016) 310 FLR 58 at 75

[98].

61 Supreme Court Act 1933 (ACT) s 37E(4).

New South Wales

25.34 Any direction, order or act of a registrar of the Supreme Court of New South Wales can be reviewed by a single judge of the Supreme Court of New South Wales without the need to establish error on the part of the registrar.62 Decisions of an associate judge of the Supreme Court of New South Wales are also appealable as of right to a single justice, but in such a case the appeal is by way of rehearing rather than a hearing de novo.63

Page 14 of 43 Chapter 25 Appeals

62 Uniform Civil Procedure Rules 2005 (NSW) r 49.19; Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 64

[6] per

Hodgson JA, 73 [50], [52] per Basten JA; Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 at [45]

.

63 Uniform Civil Procedure Rules 2005 (NSW) r 49.4; Supreme Court Act 1970 (NSW) s 104. See Tanious v Dedousis (No 2) [2014] NSWSC 1361 at [6]

; Secure Funding Pty Ltd v Stark (2015) 293 FLR 453 at 454–5

[3]–[5].

25.35 An appeal from a decision of a single judge of the Supreme Court of New South Wales lies to the Court of Appeal of the Supreme Court of New South Wales and is by way of rehearing.64 Certain appeals to the Court of Appeal require leave of the Court of Appeal, as set out by s 101(2) of the Supreme Court Act 1970 (NSW).These appeals include: an order directing an amendment of a judgment or order correcting a clerical mistake or error arising from an accidental slip or omission; a judgment given with the consent of the parties or as to costs only; an interlocutory judgment or order; a judgment or order in an interpleader issue decided in a summary way; a judgment or order on an application for summary judgment; a judgment or order with respect to taxation or assessment of costs; and a final judgment or order other than an appeal that involves a matter at issue amounting to $100,000 or more or that involves any claim, demand or question respecting any property or civil right amounting to $100,000 or more.

Page 967

64 Supreme Court Act 1970 (NSW) ss 75A(5) and 101. See also Telfer v Telfer (2014) 87 NSWLR 176 at 195 per Sackville AJA.

[107]

Northern Territory

25.36 Registrars of the Supreme Court of the Northern Territory and the Master of the Supreme Court of the Northern Territory both have case management and procedural powers.65 Where the jurisdiction of the Supreme Court of the Northern Territory was exercised otherwise than by the Full Court of the Northern Territory, an appeal lies to the Court of Appeal of the Supreme Court of the Northern Territory.66 An appeal from an interlocutory judgment only lies to the Court of Appeal by leave of the Court of Appeal; such leave is first determined on the papers by a single justice of the Court of Appeal.67

65 See, for example, Supreme Court Act (NT) ss 41K and 49; Supreme Court Rules (NT) rr 1.09A, 60.04 and 63.33. 66 Supreme Court Act (NT) s 51. 67 Supreme Court Act (NT) s 53.

25.37 The Supreme Court of the Northern Territory usually consists, at first instance, of a single judge of the Supreme Court, and decisions of a single judge are appealable to the Court of Appeal of the Supreme Court of the Northern Territory.68 A single justice of the Supreme Court may, however, refer a proceeding to the Full Court of the Supreme

Page 15 of 43 Chapter 25 Appeals Court of the Northern Territory,69 which is constituted by at least three justices.70 A decision of the Full Court of the Supreme Court of the Northern Territory cannot be appealed to the Court of Appeal of the Supreme Court of the Northern Territory.71 The Full Court of the Supreme Court of the Northern Territory also exercises appellate jurisdiction in relation to appeals from the Legal Practitioners Disciplinary Tribunal.72

68 Supreme Court Act (NT) s 51. 69 Supreme Court Act (NT) s 21. 70 Supreme Court Act (NT) s 9. 71 Supreme Court Act (NT) s 51. 72 Supreme Court Rules (NT) r 95.01. See also McLaren v Legal Practitioners Disciplinary Tribunal (NT) (2010) 26 NTLR 45

.

Queensland

25.38 An appeal from a decision of a judicial registrar or registrar of the Supreme Court of Queensland lies, with the leave of the Supreme Court of Queensland, to a single justice of the Supreme Court of Queensland.73 Where leave is granted, the appeal is by way of rehearing but the court may impose conditions on the nature of the rehearing.74

73 Uniform Civil Procedure Rules 1999 (Qld) rr 791 and 792. 74 Uniform Civil Procedure Rules 1999 (Qld) r 791.

25.39 A decision of the Trial Division of the Supreme Court of Queensland is appealable to the Court of Appeal of the Supreme Court of Queensland.75 The appeal to the Court of Appeal is by way of rehearing, although appeals from decisions other than final decisions may be by strict appeal.76 Leave is required to appeal against

Page 968 consent orders and costs orders,77 and for an appeal where a vexatious litigant order has been made.78 Where a single judge of appeal exercises the powers of the Court of Appeal of the Supreme Court of Queensland under s 44 of the Supreme Court of Queensland Act 1991 (Qld), an appeal to the Court of Appeal is a strict appeal.79

75 Supreme Court of Queensland Act 1991 (Qld) ss 29 and 62. 76 Uniform Civil Procedure Rules 1999 (Qld) r 765. 77 Supreme Court of Queensland Act 1991 (Qld) ss 63 and 64. 78 Uniform Civil Procedure Rules 1999 (Qld) r 389A. 79 See Di Iorio v Wagener [2016] QCA 346 at [27]–[28] per Gotterson JA (Philippides JA and Henry J agreeing at [39], [40]).

South Australia

Page 16 of 43 Chapter 25 Appeals

25.40 In addition to administrative functions,80 the registrar of the Supreme Court of South Australia exercises minor judicial functions subject to the supervision of the master of the Supreme Court of South Australia (commonly referred to as an associate judge in other jurisdictions),including functions relating to costs proceedings.81 An appeal from a decision of the registrar of the Supreme Court of South Australia lies to the master of the Supreme Court of South Australia unless the court directs otherwise.82

80 See Supreme Court Act 1935 (SA) s 82; Supreme Court Civil Rules 2006 (SA) r 18. 81 Supreme Court Civil Rules 2006 (SA) r 19. 82 Supreme Court Civil Rules 2006 (SA) r 21.

25.41 The master of the Supreme Court of South Australia has control over much of the case management of the court.83 An appeal from a judgment of the master of the Supreme Court of South Australia lies to a single justice of the Supreme Court of South Australia if the decision was interlocutory, and otherwise to the Full Court of the Supreme Court of South Australia.84 Such appeals are generally by way of rehearing.85

83 See Supreme Court Civil Rules 2006 (SA) r 15. 84 Supreme Court Civil Rules 2006 (SA) rr 17, 280(1) and 286(1); Supreme Court Act 1935 (SA) s 50. See also Supreme Court Civil Rules 2006 (SA) r 292(3), (5). 85 Supreme Court Civil Rules 2006 (SA) r 286.

25.42 Appeals from a decision of a single justice of the Supreme Court of South Australia lie to the Full Court of the Supreme Court of South Australia and are generally by way of rehearing.86 Leave is required to appeal from an interlocutory judgment, a costs appeal and a judgment given by consent of the parties.87

86 Supreme Court Act 1935 (SA) ss 48 and 50; Supreme Court Civil Rules 2006 (SA) rr 280 and 286. 87 Supreme Court Civil Rules 2006 (SA) r 288; Supreme Court Act 1935 (SA) s 50(4)(a).

Tasmania

25.43 Preliminary hearings in the Supreme Court of Tasmania generally go before the associate judge, who has responsibility over many case management matters.88 Appeals from interlocutory orders of the associate judge are to a single justice in court or chambers. Under s 191B of the Supreme Court Civil Procedure Act 1932 (Tas), a justice hearing an appeal from the associate judge has the same powers as the Full

Page 17 of 43 Chapter 25 Appeals

Page 969 Court of the Supreme Court of Tasmania hearing an appeal from a single justice. An appeal from a noninterlocutory determination of the associate judge is made to the Full Court of the Supreme Court of Tasmania. An appeal from a decision of the associate judge is by way of rehearing.89 Typically, the rehearing is on the material that was before the associate judge, but additional evidence can also be admitted.90

88 For jurisdiction of the associate judge, see Rules of the Supreme Court 2000 (Tas) rr 962–964. 89 Butler v Electrolytic Zinc Co of Australasia Ltd [1975] Tas SR 9 90 Re K R Wood & Co [1962] Tas SR 227

.

; Comalco Aluminium (Bell Bay) Ltd v Claudio [1970] Tas SR 231

.

25.44 An appeal from a determination of a single judge of the Supreme Court of Tasmania is heard by the Full Court of the Supreme Court of Tasmania.91 AN appeal to the Full Court from a decision of a single judge is by way of rehearing.92 Where the appeal is from a determination made after a trial on the merits, and except where relating to matters which occurred after the date of determination, additional evidence is only admitted by special leave of the Full Court which can only be granted where the evidence was not in the possession of the party seeking its admission at trial and could not have been obtained by proper diligence, or where there is some other special circumstance justifying its admission.93 Section 43 of the Supreme Court Civil Procedure Act 1932 (Tas) provides that no appeal lies from certain decisions, including those: given by consent; granting an extension of time for appealing from any determination; and giving unconditional leave to defend an action.

91 Supreme Court Civil Procedure Act 1932 (Tas) ss 40–41. 92 Supreme Court Civil Procedure Act 1932 (Tas) s 46; see also Rules of the Supreme Court 2000 (Tas) rr 657–680. 93 Supreme Court Civil Procedure Act 1932 (Tas) s 48.

Victoria

25.45 An appeal from a decision of a judicial registrar of the Supreme Court of Victoria lies, by way of a hearing de novo unless otherwise provided, to either a judge of the Trial Division of the Supreme Court of Victoria or the Court of Appeal of the Supreme Court of Victoria, depending on whether the judicial registrar made his or her decision as part of a Trial Division or Court of Appeal process.94 A decision of the costs registrar may be appealed to the judicial registrar,95 and that decision can then be appealed to a costs judge,96 which can then be appealed to a judge of the Trial Division.97

94 Supreme Court Act 1986 (Vic) s 113M. 95 Supreme Court Act 1986 (Vic) s 17H. 96 Supreme Court Act 1986 (Vic) s 17HA. 97 Supreme Court Act 1986 (Vic) s 17I.

Page 18 of 43 Chapter 25 Appeals

25.46 A decision of an associate judge is appealable to a judge of the Trial Division of the Supreme Court of Victoria, unless the matter is required by the rules or statute to be determined by the Court of Appeal.98 For example, r 77.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that an appeal from a decision of an associate judge lies to the Court of Appeal where the decision is on a matter referred by a judge to an associate judge, which would not have otherwise been a matter within the associate judge’s jurisdiction.

Page 970

98 Supreme Court Act 1986 (Vic) s 17(3).

25.47 Under s 10 of the Supreme Court Act 1986 (Vic), the Court of Appeal of the Supreme Court of Victoria has jurisdiction to hear and determine all appeals from a judge of the Trial Division99 and such appeals are by way of rehearing.100 Subject to limited exceptions, all civil appeals to the Court of Appeal require leave obtained from the Court of Appeal.101 The Court of Appeal will only grant such leave if satisfied that the appeal has a real prospect of success,102 and an application for leave may be determined on the papers by one or more judges of the Court of Appeal.103 Commonly, the application for leave to appeal will be heard concurrently with the substantive appeal, and two or more judges of the Court of Appeal may treat the application for leave to appeal as the hearing of the appeal.104

99 See also Supreme Court Act 1986 (Vic) s 17(2). 100 See Foody v Horewood [2007] VSCA 130 at [59]

per Chernov JA (Ashley JA and Neave JA agreeing at [75], [98]).

101 Supreme Court Act 1986 (Vic) s 14A. 102 Supreme Court Act 1986 (Vic) s 14C. 103 Supreme Court Act 1986 (Vic) s 14D. 104 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.19.

Western Australia

25.48 Registrars of the Supreme Court of Western Australia exercise many administrative and case management functions.105 Appeals from orders of registrars lie to a judge of the Supreme Court of Western Australia, although a judge of the Supreme Court may order that the appeal be heard by a master of the Supreme Court instead.106 Such an appeal is by way of a hearing de novo.107

105 See Rules of the Supreme Court 1971 (WA) O 60A rr 1 and 2. 106 See Rules of the Supreme Court 1971 (WA) O 60A r 4.

Page 19 of 43 Chapter 25 Appeals 107 See Rules of the Supreme Court 1971 (WA) O 60A r 6.

25.49 Like other jurisdictions, a master of the Supreme Court of Western Australia deals in the main with case management matters.108 An appeal from a single judge of the Supreme Court of Western Australia or master of the Supreme Court of Western Australia lies to the Court of Appeal of the Supreme Court of Western Australia.109 An appeal is by way of rehearing, unless a written law provides otherwise.110

108 See Rules of the Supreme Court 1971 (WA) O 60 r 1, O 4 rr 1 and 5. 109 Supreme Court Act 1935 (WA) s 58. See also Rules of the Supreme Court 1971 (WA) O 61 r 28. 110 Rules of the Supreme Court 1971 (WA) O 65 r 8; Rules of the Supreme Court (Court of Appeal) 2005 (WA) r 25.

25.50 Certain decisions are not appealable perforce of s 60 of the Supreme Court Act 1935 (WA) including an order from a judge or a master allowing an extension of time in which to appeal. Leave to appeal is required to appeal from most interlocutory orders whether given by a judge or master, costs orders, and consent orders.111 A judge of the Supreme Court of Western Australia may reserve or direct a case for the attention of the Court of Appeal of the Supreme Court of Western Australia.112

Page 971

111 Supreme Court Act 1935 (WA) s 60(1)(e), (f). 112 Supreme Court Act 1935 (WA) s 43.

Federal Court

25.51 Registrars of the Federal Court of Australia deal in the main with administrative, case management and costs issues.113 A decision of a registrar of the Federal Court exercising a power of the court, rather than an administrative decision which the registrar is empowered by the Federal Court Rules to make, is reviewable by way of hearing de novo by the Federal Court of Australia constituted by a single judge.114

113 See, for example, Federal Court of Australia Act 1976 (Cth) s 35A; Federal Court Rules 2011 (Cth) r 3.01. 114 See Federal Court of Australia Act 1976 (Cth) s 35A; Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at 637

[12]; Federal Court Rules 2011 (Cth) r 3.11.

Page 20 of 43 Chapter 25 Appeals

25.52 Certain decisions of the Federal Circuit Court of Australia are also reviewable on appeal to a single judge of the Federal Court of Australia, although the Federal Court is empowered to sit as a Full Court to hear the appeal.115 An appeal also lies, where statute prescribes, to a single justice of the Federal Court from a decision of a state court exercising federal jurisdiction.116

115 See Federal Court of Australia Act 1976 (Cth) ss 24(1)(d) and 25(1AA). 116 Federal Court of Australia Act 1976 (Cth) s 24(1)(c).

25.53 An appeal from a decision of a single justice of the Federal Court of Australia lies to the Full Court of the Federal Court of Australia.117 An appeal to the Full Court of the Federal Court is by way of rehearing,118 and s 27 of the Federal Court of Australia Act 1976 (Cth) empowers the Full Court to admit further evidence.

117 Federal Court of Australia Act 1976 (Cth) s 24. 118 Western Australia v Ward (2002) 213 CLR 1 at 87

[70]–[71] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

Process for instituting an appeal Commencing an appeal

25.54 Appeals in all jurisdictions are commenced by filing a notice of appeal,119 although in New South Wales prospective appellants in some cases also file and serve on the respondent a notice of intention to appeal within 28 days of the impugned judgment, which does not have the effect of commencing an appeal but rather extends the time for filing and serving a notice of appeal.120 The form of the appellant’s notice is dictated by the rules and must always include certain basic information specified by the rules.121 The appellant must serve the notice of appeal on all respondents and other parties, and on non-parties where the court has so ordered. The primary function

Page 972 of the notice is to inform the court and other parties of the appellant’s complaint against the lower court’s decision and of the remedy or order that the appellant seeks. Although precise form requirements differ between jurisdictions, a notice of appeal must always include the basis of the appeal and, other than where the appeal is by way of hearing de novo (in which case it is not necessary to limit the issues on appeal), the grounds of appeal. The notice must also identify the judgment appealed from and the orders sought.

119 See Federal Court Rules 2011 (Cth) r 36.01; Court Procedures Rules 2006 (ACT) r 5402; Uniform Civil Procedure Rules 2005 (NSW) r 51.16; Supreme Court Rules (NT) r 85.09; Uniform Civil Procedure Rules 1999 (Qld) r 746; Supreme Court Civil Rules 2006 (SA) r 282(1); Supreme Court Rules 2000 (Tas) r 660; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 64.02; Rules of the Supreme Court 1971 (WA) O 65 r 10. 120 Uniform Civil Procedure Rules 2005 (NSW) rr 51.6, 51.7 and 51.8.

Page 21 of 43 Chapter 25 Appeals 121 See Federal Court Rules 2011 (Cth) r 36.01; Court Procedures Rules 2006 (ACT) r 5403; Uniform Civil Procedure Rules 2005 (NSW) r 51.18; Supreme Court Rules (NT) r 86.15; Uniform Civil Procedure Rules 1999 (Qld) r 747; Supreme Court Civil Rules 2006 (SA) r 282; Supreme Court Rules 2000 (Tas) r 685; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 64.04; Rules of the Supreme Court 1971 (WA) O 65 r 10.

25.55 Appellate courts in all jurisdictions have the power to amend a notice of appeal,122 and the appellant may also apply to amend the notice of appeal in all jurisdictions although some jurisdictions require leave for any such amendment and others require leave for amendment after a certain time.123

122 See Federal Court Rules 2011 (Cth) r 36.10; Court Procedures Rules 2006 (ACT) r 5412; Uniform Civil Procedure Rules 2005 (NSW) r 51.23; Supreme Court Rules (NT) r 87.06; Uniform Civil Procedure Rules 1999 (Qld) r 751; Supreme Court Civil Rules 2006 (SA) r 294; Supreme Court Rules 2000 (Tas) r 672(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.12; Rules of the Supreme Court 1971 (WA) O 21. 123 See Federal Court Rules 2011 (Cth) r 36.10; Court Procedures Rules 2006 (ACT) r 5412; Uniform Civil Procedure Rules 2005 (NSW) r 51.23; Uniform Civil Procedure Rules 1999 (Qld) r 751; Supreme Court Civil Rules 2006 (SA) r 294;Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.12.

25.56 Appeal procedures facilitate the efficient operation of the court system by, inter alia, limiting the time in which an appeal can be brought, and thereby attempting to ensure that litigation is brought to a final end effectively. All jurisdictions impose limits on the time in which an appeal can be commenced, ranging from seven days after leave to appeal is granted to 28 days after the impugned judgment is pronounced. The time limits for appeals from the state Supreme Courts and the Federal Court of Australia are as follows: •

Australian Capital Territory: seven days after leave to appeal is granted, or 28 days after judgment is pronounced where leave to appeal is not needed.124

•

New South Wales: the relevant of seven days after leave to appeal is granted, 28 days after judgment is pronounced where leave to appeal is not needed, or within three months of having served and filed a notice of intention.125

•

Northern Territory: 28 days after leave to appeal is granted, or after judgment is pronounced where leave to appeal is not needed.126

•

Queensland: 28 days after judgment is pronounced.127

•

South Australia: seven days after leave to appeal is granted, or 21 days after judgment is pronounced where leave to appeal is not needed.128

Page 973   •

Tasmania: 21 days after judgment is pronounced, unless the order appealed from is interlocutory when appeal must be instituted within 10 days after the judgment is pronounced.129

•

Victoria: application for leave to appeal, or notice of appeal where leave is not required, within 28 days after judgment is pronounced.130

•

Western Australia: 14 days after judgment is pronounced where the appeal is interlocutory, otherwise 21 days after judgment is pronounced.131

•

Federal Court: 21 days after judgment is pronounced.132

Page 22 of 43 Chapter 25 Appeals

124 Court Procedures Rules 2006 (ACT) r 5405. 125 Uniform Civil Procedure Rules 2005 (NSW) rr 51.9 and 51.16. 126 Supreme Court Rules (NT) r 83.04. 127 Uniform Civil Procedure Rules 1999 (Qld) r 748. 128 Supreme Court Civil Rules 2006 (SA) r 281. 129 Supreme Court Rules 2000 (Tas) r 659. 130 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.05. 131 Supreme Court (Court of Appeal) Rules 2005 (WA) r 26. 132 Federal Court Rules 2011 (Cth) r 36.03.

Extension of time

25.57 All jurisdictions allow an application to be made for an extension of time within which to appeal.133 Such an application must explain the reasons for delay in commencing the appeal. A court will consider the explanation for delay along with any prejudice that might be caused to the respondent by allowing the appeal to progress. The merits of the appeal ought also be considered,134 since, where an appeal would have no prospect of success, the grant of an extension of time would be futile.

133 See Federal Court Rules 2011 (Cth) r 36.05; Court Procedures Rules 2006 (ACT) r 5082; Uniform Civil Procedure Rules 2005 (NSW) r 1.12; Supreme Court Rules (NT) r 3.02; Uniform Civil Procedure Rules 1999 (Qld) r 7; Supreme Court Civil Rules 2006 (SA) r 295; Supreme Court Rules 2000 (Tas) r 52; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.08;Rules of the Supreme Court 1971 (WA) r 3.5. 134 See Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30

.

25.58 It is suggested that an appeal court faced with an application for extending the time within which to appeal should approach the task on the basis that as a matter of general principle justice requires compliance with the time limit for appeal,and that an applicant who seeks an extension bears a burden in overcoming this assumption. The reasons for the delay will bear on the determination, especially whether or not the applicant can be blamed for the delay. Logically, the longer the time that the applicant allows to pass, the harder it should be to justify taking away from the respondent the fruits of its success in the lower court. Where the respondent is unaware of the applicant’s intentions to challenge the judgment, the applicant’s task is harder still. But even where the respondent has been aware of the applicant’s intentions, it does not follow that the respondent agreed to an extension of time within which to appeal or accepted its inevitability, although, of course, the circumstances of the case and the parties must be taken into account.

25.59 Although the relevant principles on an application to extend time will of course be moulded by the terms of the provision or rule dealing with the discretion, there are general principles common to the exercise of the discretion

Page 23 of 43 Chapter 25 Appeals across all Australian jurisdictions. The High Court of Australia recently considered the principles relevant to the exercise of the discretion to grant an extension of time in Prince Alfred College

Page 974 Incorporated v ADC ,135 although it should be noted that that case considered an application for an extension of time within which to institute proceedings, rather than within which to appeal. In Prince Alfred, the High Court considered the principles relevant to the exercise of the discretion to grant an extension of time under s 48 of the Limitation of Actions Act 1936 (SA). Section 48(1) provided that, where an Act, regulation, rule or by-law prescribes or limits the time for instituting an action, or doing any act or taking any step in an action or with a view to instituting an action, a court may extend the time so prescribed. With respect to the principles governing the exercise of discretion, the plurality held that:136 First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said: The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff ’s case is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.

135 (2016) 258 CLR 134; [2016] HCA 37

.

136 (2016) 258 CLR 134 at 164–5 [99]–[100] per French CJ, Kiefel, Bell, Keane and Nettle JJ (footnotes omitted).

25.60 McHugh J considered the relevant principles when dealing with an application for an extension of time to appeal in Gallo v Dawson .137 The application to extend time in that case was made 16 months after the expiry of the 21-day period within which a notice of appeal was required to be lodged. The explanation propounded for the delay was that the applicant wished to research the issues before deciding whether to appeal. In dismissing the application, McHugh J held that:138 The grant of an extension of time under [the relevant rule] is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262 of an applicant upon proof that strict

. This means that the discretion can only be exercised in favour

Page 975

Page 24 of 43 Chapter 25 Appeals

compliance with rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92 ; Jess v Scott (1986) 12 FCR 187 at 194–195 . When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967]VR 871 at 872 ; Hughes, at 263–264; Mitchelson v Mitchelson (1979) 24 AR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201 . It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

137 (1990) 64 ALJR 458; [1990] HCA 30

.

138 (1990) 64 ALJR 458 at 459.

25.61 It can be seen that on an application for an extension of time within which to appeal, a number of considerations are relevant. These considerations include: whether refusal of the application would constitute an injustice;139 the consequences of the grant or refusal of the application;140 the extent of any prejudice that would be suffered by the respondent if the application is granted;141 the history of the proceedings, including the conduct of the parties;142 the length of the delay;143 the reasons for the delay;144 the necessity for time limits and for compliance with time limits; and the merits of the appeal.145 No single factor is determinative and the weight to be given to each factor will vary depending on the circumstances of the case.146 The decision to grant or refuse an extension of time is discretionary and, as such, an unsuccessful litigant will need to establish House v The King error in order to challenge the decision.

Page 976

139 See, for example, Gallo v Dawson (1990) 64 ALJR 458 at 459 at 112–13

; Financial Wisdom Ltd v Newman (2005) 12 VR 79

[89]; Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority

(2008) 2 ACTLR 44 at 50

[18].

140 See, for example, Gallo v Dawson (1990) 64 ALJR 458 at 459 at 112–13 [89].

; Financial Wisdom Ltd v Newman (2005) 12 VR 79

141 See, for example, Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 130

[36] per Heydon JA (Mason P

and Young CJ in Eq agreeing at 117 [1], 131 [39]); Burnett v FitzGerald and Browne [2017] TASSC 31 at [11] 142 See, for example, Gallo v Dawson (1990) 64 ALJR 458 at 459 at 112–13 [89].

.

; Financial Wisdom Ltd v Newman (2005) 12 VR 79

Page 25 of 43 Chapter 25 Appeals 143 See, for example, Jackamarra v Krakouer (1998) 195 CLR 516 at 520–1 Kirby J; Financial Wisdom Ltd v Newman (2005) 12 VR 79 at 112–13 TASSC 31 at [11]

per Brennan CJ and McHugh J, 542–3 per [89]; Burnett v FitzGerald and Browne [2017]

.

144 See, for example, Jackamarra v Krakouer (1998) 195 CLR 516 at 520–1

per Brennan CJ and McHugh J, 542–3 per

Kirby J; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 130 [35] per Heydon JA (Mason P and Young CJ in Eq agreeing at 117 [1], 131 [39]); Pre-Paid Professional Administration Ltd v Deputy Commissioner of Taxation (2012) 86 ATR 17 at 21

[12]–[13]; Danagher v Child Support Registrar (2014) 228 FCR 213 at 221

[56]–[58]; Reid v South West Regional College of Tafe [2015] WASCA 231 at [45] [2017] TASSC 31 at [11]

; Burnett v FitzGerald and Browne

.

145 See, for example, Jackamarra v Krakouer (1998) 195 CLR 516 at 521; [1998] HCA 27 at [7] McHugh J; Financial Wisdom Ltd v Newman (2005) 12 VR 79 at 112–13 [2017] TASSC 31 at [11]

.

146 Tomko v Palasty (No 2) [2007] NSWCA 369 TASSC 31 at [12]

per Brennan CJ and

[89]; Burnett v FitzGerald and Browne

per Hodgson JA at [14]; Burnett v FitzGerald and Browne [2017]

.

25.62 An extension of time can obviously also be sought to extend time within which an application for leave to appeal or special leave to appeal can be filed. The underlying consideration on an application for an extension of time in which to apply for leave to appeal has been held to be the avoidance of injustice.147

147 Griffiths v Malika Holdings (1997) 140 FLR 353 at 360

.

Permission to appeal

25.63 As foreshadowed above, commonly leave is required to appeal. This requirement of permission to appeal is one way in which courts can ensure that their attention and resources are focused proportionately on the issues that merit a second consideration.It is quite common, if not almost universal, for example, for leave requirements to attach to appeals against interlocutory or discretionary orders and, at the intermediate appellate court level, less common for such requirements to attach to a first appeal against a final determination of substantive rights.148 Permission requirements can also prevent litigants from imposing unnecessary costs on other litigants, especially where there is resource disparity between the parties.

148 Cf Supreme Court Act 1986 (Vic) s 14A.

25.64

Page 26 of 43 Chapter 25 Appeals Leave to appeal can be granted subject to conditions. A condition requiring security for costs, for example, or a condition that the appellant pay the respondent’s costs of the hearing below, could attach to a grant of leave to appeal.It should be stressed that a court would rarely be justified in imposing a condition on a grant of permission to appeal that the appellant cannot fulfil, and which will therefore effectively stifle the appeal.149

149 See Probuild Construction (Aust) Pty Ltd v Shade Systems Pty Ltd [2017] HCATrans 112 at line 419 ff. See also Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534 (CA); Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 1915; [2001] All ER (D) 258. See generally principles in Cox v Journeaux (No 2) (1935) 52 CLR 713

; Gao v Zhang (2005) 14 VR 380

.

25.65 Leave to appeal can also be granted in respect of only part of the appellant’s proposed case. Where permission is given, it need not be open-ended. The court may limit its permission to the issues that it regards worthy of consideration,and deny permission in respect of other issues. Issues in respect of which permission was refused are not arguable on appeal.

Principles governing grant or refusal of permission to appeal

25.66 Although leave requirements are affected by the provision in which they appear,150 it is generally accepted that on an application for leave to appeal an applicant must establish:151 (1) that the decision was wrong or at least attended with sufficient

Page 977 doubt to justify the grant of leave; and (2) that a substantial injustice would be done if the decision was allowed to stand.

150 See, for example, Supreme Court of Victoria Act 1986 (Vic) s 14C. 151 See Niemann v Electronic Industries [1978] VR 431 at 433 Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 at 758

per McInerney J, 439, 442 per Murphy J; BHP

per Fullagar J (Young CJ agreeing at 756), King J at 762;

Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200 at 218 Handley JA; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9 Holdings (1997) 140 FLR 353 at 360

; Griffiths v Malika

; Re Luck (2003) 78 ALJR 177 at 179; [2003] HCA 70 at [12]

International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 at 58–9

per

; Arrow

[58].

25.67 Where the decision from which appeal is sought is final, rather than interlocutory, the injustice said to be done if the decision is allowed to stand may be more readily discernible,152 although, given the difficulties distinguishing between final and interlocutory judgments, it has also been said that an interlocutory judgment which in effect determines substantive rights will more readily be the grant of leave.153 The injustice said to be done may be especially difficult to discern where the decision from which an appeal is sought deals with a matter of practice and

Page 27 of 43 Chapter 25 Appeals procedure, where the decision does not determine substantive rights and where the courts recognise that to too readily allow appeals could result in indeterminable delay and indefinite cost.154 That injustice is more readily discernible where the decision is final, or final in effect, makes clear that courts consider the consequences to the parties and their substantive rights when considering whether a grant of leave is appropriate.A court may also be more easily persuaded to grant leave to appeal from a decision of a tribunal, in which case the matter has not yet received curial consideration.155

152 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at 372–3

[16]–[18].

153 Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200 at 210 Kirby P; Arrow International Australia Ltd v Group Konstrukt Pty Ltd (2012) 7 ACTLR 48 at 58 154 See Angell v P North Consultants Pty Ltd (2007) 21 NTLR 1 at 3

per

[58].

[5]–[7].

155 See Dura (Australia) Construction Pty Ltd v Victorian Managed Insurance Authority (2009) 31 VAR 193 at 200 [8].

25.68 Where the decision from which appeal is sought involves a discretionary decision, an appellate court cannot intervene merely because it would have exercised the discretion differently but must point to some improper exercise of the discretion.156

156 House v The King (1936) 55 CLR 499 at 504–5; [1936] HCA 40 per Dixon, Evatt and McTiernan JJ. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205; [2000] HCA 47 at [21]

per Gleeson CJ, Gaudron and Hayne JJ; Bondelmonte v Bondelmonte (2016) ALJR 402 at 407 [31].

25.69 Where the relevant rules or statutory provisions do not make any express provision for circumstances in which a non-party can appeal from a judgment, the authorities suggest that a non-party with the necessary standing may obtain leave to appeal from a final or interlocutory judgment where the non-party is aggrieved or sufficiently interested in the orders made by the judge below.157 The fact that a party is challenging the same issue that the non-party seeks to challenge on appeal is a consideration that militates against granting leave to a non-party to appeal in its own right.158

Page 978

157 Ashby v Slipper (2014) 219 FCR 322 at 393

[310]. See also Witness v Marsden (2000) 49 NSWLR 429

Commonwealth v Construction,Forestry, Mining and Energy Union (2000) 98 FCR 31 158 Ashby v Slipper (2014) 219 FCR 322 at 399

Process for responding to an appeal

[343].

.

;

Page 28 of 43 Chapter 25 Appeals

25.70 Some jurisdictions require a respondent who intends to cross-appeal to file a notice of intention to respond prior to filing a notice of cross-appeal.159 In such jurisdictions, the notice of intention is required to be filed with the court and served on the other parties to the appeal.

159 See Court Procedures Rules 2006 (ACT) r 5410; Supreme Court (Court of Appeal) Rules 2005 (WA) O 65 r 12.

25.71 In all jurisdictions, a respondent must, in order to challenge part of the decision of the court below or to alter the lower court’s order (that is, if the respondent wishes to appeal), file a notice of cross-appeal.160 Such a respondent is sometimes known as a ‘defensive respondent’; to be distinguished from a ‘passive respondent’, who merely wishes to uphold the lower court’s decision for the reasons given by the lower court and who need not file a notice of cross-appeal. All jurisdictions impose time limits in which to file a notice of cross-appeal, ranging from seven days after the service of the notice of appeal to 28 days after such service.161

160 See Federal Court Rules 2011 (Cth) r 36.21; Court Procedures Rules 2006 (ACT) r 5413; Uniform Civil Procedure Rules 2005 (NSW) r 51.17; Supreme Court Rules (NT) r 83.16; Uniform Civil Procedure Rules 1999 (Qld) r 755; Supreme Court Civil Rules 2006 (SA) r 285; Supreme Court Rules 2000 (Tas) r 664 ; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.30; Rules of the Supreme Court 1971 (WA) O 65 r 12; Supreme Court (Court of Appeal) Rules 2005 (WA) r 33. 161 See Federal Court Rules 2011 (Cth) r 36.22; Court Procedures Rules 2006 (ACT) r 5413; Uniform Civil Procedure Rules 2005 (NSW) r 51.17; Supreme Court Rules (NT) r 83.16; Uniform Civil Procedure Rules 1999 (Qld) r 755; Supreme Court Civil Rules 2006 (SA) r 285; Supreme Court Rules 2000 (Tas) r 664; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 64.30; Rules of the Supreme Court 1971 (WA) O 65 r 12.

25.72 A respondent may contend that the impugned decision should be affirmed on a different ground to that on which it was decided at first instance, generally by filing a notice of contention.162 Time limits also apply to the filing of a notice of contention.

162 See Federal Court Rules 2011 (Cth) r 36.24; Court Procedures Rules 2006 (ACT) r 5416; Uniform Civil Procedure Rules 2005 (NSW) r 50.11; Supreme Court Rules (NT) r 83.16(3); Uniform Civil Procedure Rules 1999 (Qld) r 757; Supreme Court Civil Rules 2006 (SA) r 285(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.32; Rules of the Supreme Court 1971 (WA)r 65.12; Supreme Court (Court of Appeal) Rules 2005 (WA) r 33. Cf Supreme Court Rules 2000 (Tas) r 664(3).

Concluding an appeal Withdrawing an appeal

Page 29 of 43 Chapter 25 Appeals

25.73 An applicant who does not wish to pursue its application for leave to appeal or an appellant who does not wish to pursue its appeal may request an order dismissing the application or appeal from the appeal court.163 The court would normally grant such a request, but will usually order that the applicant or appellant pay the costs of

Page 979 the application or appeal unless the respondent consents to dismissal without costs. Leave of the court is sometimes required to discontinue an appeal once the hearing has commenced.164 Specific grounds of appeal, rather than the appeal in its entirety, may also be abandoned.165

163 See Federal Court Rules 2011 (Cth) r 36.73; Court Procedures Rules 2006 (ACT) r 5471; Uniform Civil Procedure Rules 2005 (NSW) r 51.6; Supreme Court Rules (NT) r 84.15; Supreme Court Civil Rules 2006 (SA) r 287; Supreme Court Rules 2000 (Tas) r 675; Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 64.29; Rules of the Supreme Court 1971 (WA) O 65 r 17. 164 See Federal Court Rules 2011 (Cth) r 36.73; Court Procedures Rules 2006 (ACT) r 5471. 165 See Court Procedures Rules 2006 (ACT) r 5470; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.29.

Disposing of an appeal by consent

25.74 If the parties reach an agreed settlement, they may make a joint request to the appellate court that the application or appeal be dismissed by consent.166

166 See Federal Court Rules 2011 (Cth) r 39.11; Court Procedures Rules 2006 (ACT) r 5474; Uniform Civil Procedure Rules 2005 (NSW) r 36.1A; Supreme Court Rules (NT) r 59.06; Uniform Civil Procedure Rules 1999 (Qld) r 764; Supreme Court Civil Rules 2006 (SA) r 227; Supreme Court Rules 2000 (Tas) r 340; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 59.06; Rules of the Supreme Court 1971 (WA) O 65 r 18.

25.75 Problems may arise where the parties have reached an agreed settlement by way of a consent judgment, and a party subsequently seeks to appeal this judgment. Appeals against consent judgments are prohibited in Tasmania,167 and leave to appeal is required in New South Wales,168 Queensland,169 South Australia,170 Western Australia171 and Victoria.172

167 Supreme Court Civil Procedure Act 1932 (Tas) s 43(a). 168 Supreme Court Act 1970 (NSW) s 101(2)(c). 169 Supreme Court of Queensland Act 1991 (Qld) s 63. 170 Supreme Court Act 1935 (SA) s 50(4)(a)(i). 171 Supreme Court Act 1935 (WA) s 60(1)(e). 172 Supreme Court Act 1986 (Vic) s 14A.

Page 30 of 43 Chapter 25 Appeals

Disposing of an appeal after judicial determination

25.76 Appellate courts are generally vested with the powers of first instance courts, as well as a broader power to make such orders as the appellate court deems fit.173 Hence, when disposing of an appeal after judicial determination, the appellate court is able to, inter alia, affirm, amend, set aside, vary or reverse, in whole or in part, the orders of the court below. As considered further below,174 an appellate court may also order a new trial and give directions for that new trial.

173 See, for example, Federal Court of Australia Act 1976 (Cth) s 28; Supreme Court Act 1933 (ACT) s 37O; Supreme Court Act 1970 (NSW) s 44; Supreme Court of Queensland Act 1991 (Qld) s 29; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Procedure Act 1932 (Tas) s 47; Supreme Court Act 1986 (Vic) s 14; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.36. 174 See 25.81 below.

Stay of execution pending appeal

25.77 It is a long established principle that an appeal does not automatically stay the execution process. This principle is founded on the idea that a party who has obtained a favourable judgment should not be denied its benefit merely because the opponent

Page 980 appeals against it. However, in order to reduce the risk of injustice that could result from the operation of this principle, lower courts and appellate courts have the power to grant a stay of proceedings.175

175 Federal Court Rules 2011 (Cth) r 36.08; Court Procedures Rules 2006 (ACT) r 5301; Uniform Civil Procedure Rules 2005 (NSW) r 51.44; Supreme Court Act (NT) s 57; Uniform Civil Procedure Rules 1999 (Qld) r 761; Supreme Court Civil Rules 2006 (SA) r 300; Supreme Court Rules 2000 (Tas) r 676; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.05, 58.12, 58.21 and 64.37; Supreme Court (Court of Appeal) Rules 2005 (WA) r 8. See Chapter 24, 24.7 in relation to the power of a trial court to impose a stay of execution.

25.78 Under the respective state and federal provisions, the discretion of an appellate court to grant a stay is wide. Guidance coming from the case law, however, provides that the general principle remains that a party is entitled to enforce a judgment as soon as it is given,176 unless there are special circumstances to justify a stay of execution.177

176 See, for example, Coles Supermarkets Australia Pty Ltd v Clarke [2012] NSWCA 428

.

177 See, for example, Commissioner of Taxation v The Myer Emporium Ltd (1986) 160 CLR 220 at 222–3 J.

per Dawson

Page 31 of 43 Chapter 25 Appeals

25.79 Special circumstances will vary according to the facts before the court. The existence of reasonably arguable grounds of appeal is not, of itself, necessarily sufficient to justify the grant of a stay,178 although absence of such grounds is likely to be a determinative consideration against a stay.179 It is a relevant consideration that a refusal to grant a stay would likely render the appeal futile. This futility usually arises where the appellant may not be able to recover money paid out in accordance with the judgment, but also arises more generally where it is not possible for a successful appellant to be restored substantially to its former position if the appealed judgment is executed.180 Delay by the appellant in seeking a stay is relevant,181 and where the jurisdiction has an overriding objective, such objective will obviously also be relevant.182 Where a stay is required to preserve the subject matter of the litigation, relevant considerations include whether the stay will cause loss to the respondent, and where the balance of convenience lies.183 An appellant who has paid money in satisfaction of a judgment that is later reversed on appeal will naturally have a right to be reimbursed.

178 McBridge v Sandland (No 2) (1918) 25 CLR 369

.

179 Chen v Lym International Pty Ltd [2009] NSWCA 121

.

180 Commissioner of Taxation v The Myer Emporium Ltd (1986) 160 CLR 220 at 222–3 181 See, for example, Refaat v Barry [2016] VSCA 189

per Dawson J.

.

182 See, for example, Littore v Rabobank Australia Ltd [2016] VSCA 258

.

183 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685 J;

per Brennan

25.80 An appeal to the High Court of Australia will also not automatically stay proceedings, although a lower appellate court may order a stay pending an application for special leave to appeal to the High Court.184 The High Court may also order a stay where a decision has been appealed to it.185 The factors to be considered in the exercise of the High Court’s discretion to grant a stay of execution of a judgment pending an application for special leave include: whether there is a substantial prospect of special leave to appeal being granted; whether the applicants have done everything possible to

Page 981 obtain a stay from the court below; whether a stay would cause loss to the respondent; and where the balance of convenience lies.186

184 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

.

185 High Court Rules 2004 (Cth) r 42.09. 186 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685 Brennan J; Obeid v R (2016) 90 ALJR 447 at 450 [13].

Applications for new trials

[14]; Mercanti v Mercanti (2017)91 ALJR 258 at 260

per [11]–

Page 32 of 43 Chapter 25 Appeals

25.81 Clearly, the importance of finality in litigation is a key consideration on an application for a new trial. Finality must be considered against litigants’ interests in the correct determination of their dispute. Where the trial was regularly conducted, very strong justification is necessary before a new trial will be ordered. This necessity was expressed by Dixon J in Orr v Holmes 187 as follows: If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence.

187 (1948) 76 CLR 632 at 640; [1948] HCA 16 93 CLR 435 at 444

per Dixon J. See also Greater Wollongong Corporation v Cowan (1955)

per Dixon CJ (Williams, Webb, Kitto and Taylor JJ agreeing).

25.82 New trials on issues already determined waste time and cost. At least as importantly, new trials create uncertainty in the law since, even after full judicial determination, the issues still remain alive, in the sense that the successful party may be deprived of the verdict. Fairness to the opposing party demands that a litigant should not be entitled to reagitate its claim on a different basis or with different evidence. For these reasons, courts are very reluctant to order new trials.

25.83 Where the application for a new trial is made on the basis of newly discovered evidence without impugning the conduct of the trial or the parties, the application will only be granted to fulfil an imperative demand of justice.188 Although the principles on which an appellate court operates when determining whether to grant a new trial are ‘settled by practice … [they] have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end’.189 Newly discovered evidence will not warrant a new trial unless it is almost certain that the new evidence would have resulted in the opposite result at trial.

Page 982

188 See Orr v Holmes (1948) 76 CLR 632 at 640; [1948] HCA 16 (1955) 93 CLR 435 at 444

per Dixon J; GreaterWollongong Corporation v Cowan

per Dixon CJ (Williams, Webb, Kitto and Taylor JJ agreeing).

189 McCann v Parsons (1954) 93 CLR 418 at 430–1

per Dixon CJ, Fullager, Kitto and Taylor JJ.

Page 33 of 43 Chapter 25 Appeals

25.84 Where the newly discovered evidence shows misconduct at trial, the test in Orr v Holmes 190 extracted above does not apply as stringently.191 The High Court considered the issue of misconduct in Commonwealth Bank of Australia v Quade,192 where the party who was successful at trial had failed to comply with discovery obligations. The court held193 that: It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court’s assessment of what will best serve the interests of justice, ‘either particularly in relation to the parties or generally in relation to the administration of justice’. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is ‘almost certain’or ‘reasonably clear’ that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.

190 (1948) 76 CLR 632 at 640

per Dixon J.

191 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 143; [1991] HCA 61 192 (1991) 178 CLR 134; [1991] HCA 61

.

.

193 (1991) 178 CLR 134 at 142–3; [1991] HCA 61

.

25.85 Hence, where the new evidence shows misconduct on the part of the successful party at trial, only a real possibility that the verdict at trial would have been different is required.194 This lower threshold, as compared with the near certainty required where misconduct at trial is not alleged, properly reflects that litigants should not be encouraged to engage in misconduct under the safety of finality of litigation.

194 See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140; [1991] HCA 61

.

25.86 The misconduct referred to in Commonwealth Bank of Australia v Quade was ‘surprise, malpractice or fraud’.195 In explication of the former two categories, the High Court noted that196 ‘a case of failure to comply with a discovery order could, particularly where the failure was deliberate or remains unexplained, come within the category of “cases of malpractice”, and be a stronger case than the category of “cases of surprise”’. It has also been said that ‘surprise’ refers to sharp practice falling short of fraud.197 The relevant misconduct in Commonwealth Bank of

Page 34 of 43 Chapter 25 Appeals Australia v Quade was the failure of the appellant, for unexplained reasons, to comply with the requirements of pretrial discovery.

195 See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140; [1991] HCA 61 196 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141; [1991] HCA 61 197 Clone Pty Ltd v Players Pty Ltd (2016) 127 SASR 1 at 180

.

.

[706] per Debelle AJ.

25.87 An application for a new trial may be made as part of the statutory appeal process or after the appellate process has been completed and the judgment is perfected.

Page 983 Where the application is made in the former circumstances,the principles in which a new trial will be ordered are relatively well settled.198 There has previously been some uncertainty, however, as to whether the same principles apply when the application is made to set aside a perfected judgment outside the appellate process. It was argued, on the one hand, that on an application to set aside a judgment on the ground of malpractice in the original jurisdiction after exhaustion of the appellate process, a court should be especially reluctant to interfere with the finality of the perfected decision such that additional elements of no lack of reasonable diligence on the part of the applicant and malpractice so material that the outcome at trial would have been affected are required.199 It was said that a court exercising appellate jurisdiction is operating within a statutory qualification to the principle of finality whereas a court to which an application to set aside a perfected judgment is made faces a proceeding that is, and perhaps has long been, at an end and beyond the court’s recall.200

198 See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; [1991] HCA 61 199 See Clone Pty Ltd v Players Pty Ltd (2016) 127 SASR 1 at 68 200 See Clone Pty Ltd v Players Pty Ltd (2016) 127 SASR 1 at 178–9

.

[308]. [704]–[706], 180–2 [710]–[711] per Debelle AJ.

25.88 The High Court recently considered the basis on which a court can set aside a perfected judgment in Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) .201 In a unanimous judgment, Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ held that misconduct not amounting to fraud does not enliven a court’s power to set aside its own perfected judgment — actual fraud must be shown —but that there is no requirement for the party applying to set aside to show that it had exercised reasonable diligence to discover the fraud.202

201 [2018] HCA 12

.

202 Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) [2018] HCA 12 at [2]

.

Page 35 of 43 Chapter 25 Appeals

25.89 In Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) ,203 the High Court considered and declined to follow the English position, as expressed in Owens Bank Ltd v Bracco ,204 that the party seeking to set aside a perfected judgment must show that it had exercised reasonable diligence prior to the judgment to discover the fraud. The Full Court of the Federal Court of Australia had previously cited Owens Bank Ltd v Bracco in Monroe Schneider v No 1 Raberem 205 as providing the relevant principles where an application to set aside a perfected judgment is made outside of the appellate context, although it was not disputed by the parties in Monroe that the Owens Bank principles applied, and the particular passage considered in Owens Bank was dicta. In Owens Bank Ltd v Bracco , Lord Bridge of Harwich described206 the common law rule for setting aside a perfected order based on fraud as follows: [T]he common law rule [is] that the unsuccessful party who has been sued to judgment is not permitted to challenge that judgment on the ground that it was obtained by fraud unless he is able to prove that fraud by fresh evidence which was not available to him

Page 984 and could not have been discovered with reasonable diligence before the judgment was delivered … This is the rule to be applied in an action brought to set aside an English judgment on the ground that it was obtained by fraud. The rule rests on the principle that there must be finality of litigation which would be defeated if it were open to the unsuccessful party in one action to bring a second action to relitigate the issue determined against him simply on the ground that the opposing party had obtained judgment in the first action by perjured evidence. Your Lordships were taken, in the course of argument, through the many authorities in which this salutary English rule has been developed and applied and which demonstrate the stringency of the criterion which the fresh evidence must satisfy if it is to be admissible to impeach a judgment on the ground of fraud. I do not find it necessary to examine these authorities. The rule they establish is unquestionable and the principle on which they rest is clear.

203 [2018] HCA 12 at [63]–[68] 204 [1992] 2 AC 443 205 (1992) 37 FCR 234

.

. .

206 [1992] 2 AC 443 at 483 per Lord Griffiths (Lord Goff of Chieveley and Lord Browne-Wilkinson agreeing at 480, 490)..

25.90 The High Court of Australia held in Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd), however, that the requirement for reasonable diligence had never been a requirement of an original action to set aside a judgment based upon fraud, and was only ever a condition for a bill of review based on fresh evidence, and that the modern English requirement for reasonable diligence to be shown in an action to rescind a judgment for reason of fraud was based upon the assimilation of these separate principles.207 Following Clone, the following is clear: (1) there is a distinction between a power of an appellate court to set aside a lower court judgment and order a new trial and the power of a court, on an original action, to set aside a perfected judgment, and different principles govern each;208 (2) the modern appellate power broadly derives from the pre-Judicature Act bill of review, which concerned errors on the face of the decree and newly discovered matter, with newly discovered matter requiring no lack of reasonable diligence in discovering the material;209 (3) the power of a court to set aside a perfected judgment is a much narrower equitable power and, while there are other categories of case that enliven the power — such as

Page 36 of 43 Chapter 25 Appeals where a decree affected rights of parties who had not been joined — malpractice not amounting to fraud is insufficient and actual fraud must be shown;210 and (4) the requirement of reasonable diligence as it relates to fresh evidence in the appellate context does not transpose itself onto an original action to set aside a perfected judgment.211

207 [2018] HCA 12 at [67]. 208 [2018] HCA 12 at [44]. 209 [2018] HCA 12 at [45]–[47]. 210 [2018] HCA 12 at [53]–[55]. 211 [2018] HCA 12 at [68].

Appeal to the High Court of Australia General

25.91 An appeal to the High Court is a strict appeal.212 The High Court will not accept further evidence on appeal, whether the appeal comes from state or federal jurisdiction.213 The High Court may, however, hear an issue of law on appeal that was

Page 984 not raised in the lower courts.214 The court is unlikely to allow a new point of fact to be raised before it on appeal if the matter was not adduced at trial and evidence might have been adduced in answer to that point.215

212 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 CLR 259

; Crampton v R (2000) 206 CLR 161

213 Mickelberg v R (1989) 167 CLR 259 at 267–9 214 Crampton v R (2000) 206 CLR 161

; Mickelberg v R (1989) 167

. ; Eastman v R (2000) 203 CLR 1 at 24

.

.

215 Crampton v R (2000) 206 CLR 161 at 172

per Gleeson CJ.

25.92 Appellate jurisdiction is conferred on the High Court of Australia by s 73 of the Constitution, which provides that: The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (1)

of any Justice or Justices exercising the original jurisdiction of the High Court;

(2)

of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;

(3)

of the Inter-State Commission, but as to questions of law only;

Page 37 of 43 Chapter 25 Appeals and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions that used to apply to appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

25.93 Further elaboration is provided by s 37 of the Judiciary Act 1903 (Cth), which provides that, in the exercise of its appellate jurisdiction,the High Court may affirm, reverse or modify the judgment appealed from, and may give such judgment as ought to have been given at first instance. An appeal also lies, by leave, to the Full Court of the High Court from a decision of a single justice of the High Court.

Special leave and leave

25.94 Most appeals to the High Court follow the grant of special leave to appeal, although some matters require only leave to appeal. The difference between a requirement of special leave and leave was considered by Dawson J in Radenkovic v R :216 Notwithstanding that the interests of the administration of justice in the particular case (see now Judiciary Act 1903 (Cth), s 35A(b)) have always been a matter to be taken into account in considering whether to grant an application for special leave to appeal, the grant of special leave remains discretionary and there must be some special feature of the case which warrants the attention of this Court. If mere error in the individual case were sufficient to justify the grant of special leave, there would be no difference between ordinary leave to appeal and special leave to appeal.

Page 986

216 (1990) 170 CLR 623 at 640; [1990] HCA 54

.

25.95 The distinction between a requirement of leave to appeal and a requirement of special leave to appeal, therefore, attaches to whether prima facie error is sufficient to warrant the hearing of an appeal or whether something further must also be established.217 Leave to appeal, rather than special leave to appeal, is required to appeal from an interlocutory decision of a justice or justices of the High Court.218 Part 41 of the High Court Rules 2004 (Cth) deals with both special leave and leave to appeal, and hence what is said about the application of the rules for special leave to appeal applies also to leave to appeal.

Page 38 of 43 Chapter 25 Appeals 217 See, for example, Genetics Institute Inc v Kirin-Amgen Inc (1999) 92 FCR 106 at 107–13

[3]–[23].

218 Judiciary Act 1903 (Cth) s 34..

25.96 At the time of writing, appeals on certain matters lie to the High Court of Australia from the Supreme Court of Nauru under the Agreement between the Government of Australia and the Government of the Republic of Nauru Relating to Appeals to the High Court of Australia from the Supreme Court of Nauru.219 While some such appeals require leave given by the trial judge or the court (rather than special leave) at the time of writing others can be made as of right.220

219 Schedule to Nauru (High Court Appeals) Act 1976 (Cth); Nauru (High Court Appeals) Act 1976 (Cth) s 5. 220 See High Court Rules 2004 (Cth) rr 43.02 and 43.03.

Special leave generally

25.97 The High Court of Australia must give special leave to appeal before an appeal can be brought to it from a state court or court exercising federal jurisdiction. The refusal of an application for special leave brings an end to the litigation. Section 35A of the Judiciary Act 1903 (Cth) provides the criteria for granting special leave as follows: In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a)

whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b)

whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

25.98 When determining an application for special leave the High Court is to consider any matters it considers relevant, but s 35A of the Judiciary Act 1903 (Cth) lists three mandatory considerations. These are: (1) whether the proceeding involves a matter of public importance; (2) whether it is desirable to settle differences of opinions among courts; and (3) whether the interests of justice require the consideration of the High Court.

Page 987

25.99

Page 39 of 43 Chapter 25 Appeals The leading case on the purpose of special leave is Smith Kline & French Laboratories (Australia) Ltd v Commonwealth .221 Smith Kline involved a challenge to the validity of s 35(2) of the Judiciary Act (1903) Cth and s 33(3) of the Federal Court of Australia Act 1976 (Cth), which both provided that an appeal could not be brought to the High Court absent special leave granted by the High Court. The plaintiffs claimed, inter alia, that s 73 of the Constitution, which provides the court’s appellate jurisdiction,required an appeal to the High Court as of right.

221 (1991) 173 CLR 194; [1991] HCA 43

.

25.100 It was unanimously held by the High Court that there was no appeal as of right to the High Court. The court noted that:222 … an application [for special leave to appeal] has special features which distinguish it from most other legal proceedings. It is a long-established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention. Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons. It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal. To that extent at least, the Court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation.

222 (1991) 173 CLR 194 at 217–18; [1991] HCA 43.

25.101 The requirement of special leave to appeal to the High Court reflects its position as the ultimate interpreter of Australian law. It is not sufficient for a grant of special leave to appeal to simply demonstrate arguable error in the reasons of the court below.223 It has been said that ‘[t]he fact that, if special leave were granted, the appeal would be allowed does not necessarily mean that special leave should be granted’.224 The High Court must be selective about the appeals that it hears so as to be able to thoroughly deal with the matters that come before it. The criteria in s 35A of the Judiciary Act 1903 (Cth) are reflective of this need and aid in the selection of appropriate matters.

223 A Mason, ‘The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal’ (1996) 15(1) University of Tasmania Law Review 1 at 9. 224 Packett v R (1937) 58 CLR 190 at 218

per Evatt J.

25.102 An appeal, and especially an appeal to the High Court by which time the matter will have progressed through a number of stages of determination, is not meant to provide a second round of the adversarial process, in which the

Page 40 of 43 Chapter 25 Appeals parties argue their case once more before a higher court. For this reason, the additional requirements imposed by requiring special leave to appeal are entirely appropriate. Although court resources and delay are important considerations, the policy of restricting appeals to the High Court to a review of the lower court’s decision where there is some additional factor warranting the High Court’s consideration is not only founded on the need to economise the use of resources. It is also founded on the belief that lower courts should bear the main responsibility for the conduct of litigation and its outcome and intermediate appellate courts should bear the main responsibility for ensuring accuracy

Page 988 in the application of the law. The relationship between lower courts and appeal courts, but especially the High Court, is one of interdependence and supervision.

The special leave process

25.103 Applications for special leave (or leave to appeal) are governed by Pt 41 of the High Court Rules 2004 (Cth). Applications are made to the High Court, and special leave can only be granted by the High Court. An application for special leave to appeal can be determined by any two or more justices.225

225 High Court Rules 2004 (Cth) r 41.08.

25.104 An application is to be filed within 28 days after the judgment below was pronounced, although an applicant can seek an order dispensing with compliance with the time limit.226 The current iteration of the special leave application process distinguishes between represented and self-represented applicants. Respondents to applications by selfrepresented applicants are relieved of the requirement to file and serve a response to the application, unless so directed by any two justices.227

226 High Court Rules 2004 (Cth) r 41.02. 227 High Court Rules 2004 (Cth) r 41.05.2, cf r 41.05.1.

25.105 The High Court now frequently determines applications for special leave to appeal on the papers, by panels of justices without an oral hearing.228 Where an application is listed for oral hearing, time limits apply to the parties’ argument.229 A draft notice of appeal is given in the application for special leave and, if the application is successful, the grounds in the final notice of appeal cannot differ from the draft notice unless the court allows. Special leave to appeal may be granted subject to conditions, such as a requirement that the appellant pay costs in any event.

228 See High Court Rules 2004 (Cth) r 41.08.1. 229 High Court Rules 2004 (Cth) r 41.08.3.

Page 41 of 43 Chapter 25 Appeals

25.106 The refusal of special leave brings the applicant’s litigation to an end. There is, however, scope to make a second special leave application, although such an application will only be granted in very limited circumstances. Kirby J, in Re Sinanovic’s Application ,230 held that, although it is not possible to exclusively explore the principles governing the reopening of a special leave application, the following principles are relevant: 1.

A decision on a special leave application is not res judicata as between the parties, equivalent to a judgment that finally decides a legal dispute between them. The application is in the nature of an interlocutory proceeding by which a party seeks to engage the jurisdiction of this court. As a general rule, interlocutory orders may be varied or set aside in appropriate circumstances where the interests of justice so require. At the stage of the special leave application, it has been said,the appellate jurisdiction of this court has not been engaged, it is simply a process by which a party seeks to persuade the court to enter upon that jurisdiction. I shall assume that this is a valid distinction compatible with the Constitution.

Page 989   2.

This court has the power to reopen an application for special leave. Quite apart from its general powers as the final appellate court of Australia, the court’s power to reopen a special leave decision lies in the implied or inherent jurisdiction of the court derived from the Constitution and from the Judiciary Act 1903 (Cth). Obviously, unexplained delay or other fault on the part of those seeking reopening would be a discretionary reason for refusing to entertain the request.

3.

The law puts a high store on finality of legal proceedings, including in this court. This is because such proceedings are inconvenient and expensive to the parties affected, costly in terms of public resources and also vexing to all parties concerned. Therefore, although the reopening of a special leave application is possible, it is extremely rare for reasons that are self-evident. Having given attention to the issues between the parties, the justices of this court should not, except in the most extraordinary case where a change of circumstances can be shown, be required to return to the matter. At the special leave hearing, the parties and their lawyers must expect to put in writing, and if they so elect orally, all that they wish to put in support of, or in opposition to, the application. They must do so when it is first before the court. The court has its own internal procedures to ensure that applications are thoroughly considered before and at the hearing. Apart from everything else, the growing number of special leave applications makes it undesirable, and practically impossible, to impose on the court a burden of multiple hearings of the same matter.

4.

The only basis for ordering the reopening of a special leave hearing would, in my opinion, be where it is affirmatively shown that exceptional circumstances exist and new circumstances have arisen that require a reopening to prevent a serious miscarriage of justice because an error of fact or law has occurred in the earlier determination of the application, which error demands correction.

5.

An error of fact will not involve the discovery of fresh evidence that was not tendered at the trial or received in the intermediate appellate court. By the authority of this court such fresh evidence, even if it were to show a grave factual error, indeed even punishment of an innocent person, cannot be received by this court exercising its appellate jurisdiction. A good instance of the discovery of such fresh evidence recently arose in the Court of Appeal of Queensland.There DNA evidence, discovered after a trial and before the hearing of the appeal in that court, conclusively demonstrated that the prisoner was innocent. However, if such evidence were discovered between the hearing in the state or territory appellate court and this court, by the authority of Mickelberg, it could not be received. The prisoner would be bereft of protection by the judicature. He or she would be compelled to seek relief from the executive. I expressed my disagreement with this principle in Eastman v R. However, it represents the repeated holding of this court. Although evidence can be received at a special leave hearing (for example, to show the significance of a case for other cases) it will not be received as fresh evidence relating to the subject of the proceedings because to receive it would be futile having regard to the fact that it could not be used in the appeal.

Page 42 of 43 Chapter 25 Appeals 6.

If some oversight or error of law has occurred, and a relevant change of circumstances can be demonstrated, this court could exceptionally be persuaded to reopen an adverse special leave decision. The rule in Dietrich v R, as presently expressed, applies only to the trial of serious criminal offences. It does not apply to appeals. On this footing, it is not unusual, at the stage of special leave to appeal, for prisoners to be unrepresented before this court. In such cases where the hearing is sometimes conducted on the papers, a significant point of law, or a change in the law, could easily be overlooked. If that could be shown, this court might, exceptionally, reopen

Page 990   the special leave hearing and order that process be received by the registrar for that purpose. Clearly relevant to the decision would be the way at which, if at all, the suggested error was pertinent to the grounds for special leave mentioned in s 35A of the Judiciary Act.

230 (2001) 180 ALR 448 at 450–1; [2001] HCA 40 at [7]

(footnotes omitted).

25.107 In Re Sinanovic’s Application, Kirby J was dealing with a criminal matter, but the principles enunciated apply equally to a second application for special leave in a civil proceeding.

Process for instituting and responding to an appeal in the High Court

25.108 The processes for instituting and responding to a High Court appeal are set out in Pt 42 and Pt 44 of the High Court Rules 2004 (Cth). An appeal is instituted by the filing of a notice of appeal, which must be filed within 14 days of the latest of the grant of leave to appeal, grant of special leave to appeal, or date of judgment below.231 The notice of appeal must also be served on each respondent within that time limit.232

231 High Court Rules 2004 (Cth) rr 42.01 and 42.03. 232 High Court Rules 2004 (Cth) r 42.05.1.

25.109 The appellant is also required to prepare a core appeal book,233 which includes the decisions and orders of the courts below, the notice of appeal or application for leave to appeal in the court below, and the order granting special leave to appeal to the High Court. The core appeal book must be filed and served within 21 days of filing the notice of appeal.234

Page 43 of 43 Chapter 25 Appeals 233 High Court Rules 2004 (Cth) r 42.13.1. 234 High Court Rules 2004 (Cth) r 42.13.10.

25.110 A respondent who wishes to cross-appeal may file a notice of cross-appeal within seven days of service of the notice of appeal,235 but a cross-appellant will only be entitled to proceed with the cross-appeal with special leave.236

235 High Court Rules 2004 (Cth) r 42.08.1. 236 High Court Rules 2004 (Cth) r 42.08.4.

End of Document

Chapter 26 Finality of Litigation Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 26 — Finality of Litigation

Chapter 26 Finality of Litigation Page 991 [Current to May 2018]

Introduction

26.1 Court adjudication provides the ultimate means for enforcing rights and is therefore the mainstay of any system that is governed by law. Court adjudication of disputes serves to reinforce rights, and bolsters the rule of law. However, the prospect of litigation can be unsettling. This is because if the legal rights of two parties are unsettled or unclear, or if a dispute has arisen but remains unsettled, there will be uncertainty about the outcome. Uncertainty tends to weaken the rule of law because people cannot manage their affairs with certainty, or fully enjoy their rights. Furthermore, it produces economic disutility, because people cannot fully use or alienate their rights whilst disputes remain on foot. Additional economic costs arise because litigation is costly, and because it diverts resources and energy away from more productive activities. There is, accordingly, a strong public interest in ensuring that the possibility of litigation is not open-ended.

26.2 The public interest in the finality of litigation has important manifestations in a number of areas. First, it favours the placing of a time limit on the possibility of initiating litigation, so that once a certain time has passed after a disputed event people can rest assured that their rights can no longer be challenged and so obtain certainty. Secondly, the public interest in finality dictates that once a dispute has been brought to court, it should be resolved in the most comprehensive way possible, so that it will not trouble the parties and the courts again. Thus the public interest dictates limits on the possibility of repeated litigation of the same issues. Finally, the public interest in the finality of litigation requires that disputes which are before the court are resolved in an expeditious manner, so that disputes do not linger interminably and certainty is achieved as quickly as possible.

26.3 The public interest in expeditious resolution of disputes finds expression in modern procedural law in case management policies, such as the court’s obligation to dispose of cases as expeditiously and comprehensively as practicable. These matters have been discussed in previous chapters. The present chapter is concerned with two topics: the rules governing limitation of action, and the rules and principles designed to prevent the reopening of matters that have already been decided by the court, or that could have been decided in previous proceedings. Limitation rules place an outer limit on the period of time during which claims

Page 992

Page 2 of 63 Chapter 26 Finality of Litigation may be brought, while the rules against relitigation ensure that controversies are finally and conclusively resolved and that litigants and courts will not be troubled with them further.

26.4 In Chapter 1, attention was drawn to the tension between resolving disputes in a timely manner, and deciding disputes according to their true merits. An equivalent tension may arise in relation to the rules of limitation and rules against relitigation. On one hand, there is a public interest in deciding disputes according to their true merits. On the other hand, there is an interest in protecting defendants from being troubled by disputes many years after the event, and in preventing the possibility of repeated litigation concerning the same facts — the interest in certainty and finality. The public interest in the finality of litigation finds expression in many principles of law, including (but not limited to) those which are discussed in this chapter. As a majority of the High Court explained in D’Orta-Ekenaike v Victoria Legal Aid :1 A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. … The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.

1

(2005) 223 CLR 1; [2005] HCA 12 at [34]–[36] omitted).

per Gleeson CJ, Gummow, Hayne and Heydon JJ (citations

26.5 In the context of limitation periods, the public interest in truth (on one hand) is not wholly divergent from the interest in certainty and finality (on the other). Where a lengthy period of time has passed since the occurrence of the facts giving rise to the dispute, the quality of evidence may have deteriorated, such that less confidence can be placed in the ability of court adjudication to arrive at a result which reflects the true merits. In such circumstances, it has been said that there is a ‘risk that the trial will be

Page 993 a mere simulacrum of the process of doing justice’.2 Accordingly, the public interests in truth and certainty converge with one another.

Page 3 of 63 Chapter 26 Finality of Litigation 2

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [105] and see generally [100]– [105] per French CJ, Kiefel, Bell, Keane and Nettle JJ. This has been identified as one of the rationales for imposing limitation periods: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551,552–3 McHugh J (Dawson J agreeing) (citations omitted), as is discussed in the following section.

per

26.6 A further factor must also be taken into account in considering the tension between truth, and finality and certainty: the efficient allocation of resources. Given that court resources are limited, it is reasonable to use them for resolving fresh disputes rather than going over disputes that have already received court attention and been determined before.

The limitation bar to the commencement of proceedings Introduction

26.7 In Australia, most civil actions are subject to a limitation period. In each jurisdiction, there is a statute (titled the Limitation Act or similar) which identifies the limitation period for various categories of actions.3 The limitation period for statutory causes of action may usually be found in the statute which creates the cause of action. The expiry of a limitation period creates a complete defence to the plaintiff’s claim. However, this is merely procedural: at common law, the expiry of a limitation period does not usually extinguish the plaintiff’s right. There are, though, a few situations in which the passage of time extinguishes the right in question. These causes of action are identified in the Limitation Acts; actions for conversion, and actions in respect of real estate, are commonly extinguished upon the expiry of the limitation period.4 It is sometimes said that the expiry of a limitation period bars the remedy and not the right. A defendant who wishes to rely on a limitation period must therefore plead it in its defence,5 and this requirement is reflected in the rules of court in each jurisdiction.6

Page 994 Depending on the circumstances, a defendant who fails to do so may be estopped from later amending its defence to rely on a limitation period, or treated as having waived the right to rely on the limitation period.7 A party who wishes to assert that the cause of action is extinguished must also plead that fact.8 For statutory causes of action, the question whether the expiry of a limitation period extinguishes the legal right (as well as barring the remedy) is a question of statutory construction.9 Where the cause of action is extinguished on the expiry of the limitation period, the usual position is that the plaintiff bears the onus of proving that the claim is within time, and must plead the relevant facts in its statement of claim.10 In the Australian Capital Territory and New South Wales, the Limitation Act provides that a party seeking to rely on an extinction of title must plead that matter.11

3

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 2005 (WA).

4

Limitation Act 1985 (ACT) Pt 4 Div 4.1; Limitation Act 1969 (NSW) Pt 4 Div 1; Limitation Act 1981 (NT) ss 19(2) and 35D(4); Limitation of Actions Act 1974 (Qld) ss 12(2) and 24; Limitation of Actions Act 1936 (SA) s 28; Limitation Act 1974 (Tas) ss 6, 13(2) and (3), 21 and 25D(5); Limitation of Actions Act 1958(Vic) ss 6(2), 11(2), (3) and 18; Limitation Act 2005 (WA) ss 75, 77–78, but cf s 74.

5

Commonwealth v Mewett (1997) 191 CLR 471 at 534–5

6

Federal Court Rules 2011 (Cth) rr 16.02(1)(e) and 16.08(c); Court Procedures Rules 2006 (ACT) rr 406(1)(e) and 407(1)(q); Uniform Civil Procedure Rules 2005 (NSW) r 14.14(2) and (3); Supreme Court Rules (NT) rr 13.02(1)(b) and 13.07(1)(a); Uniform Civil Procedure Rules 1999 (Qld) rr 149(1)(e) and 150(1)(c); Supreme Court Civil Rules 2006 (SA)

per Gummow and Kirby JJ (Brennan CJ agreeing).

Page 4 of 63 Chapter 26 Finality of Litigation r 100(1)(c), (d) and 100(3); Supreme Court Rules 2000 (Tas) r 251(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic)rr 13.02(1)(b) and 13.07(1)(a); Rules of the Supreme Court 1971 (WA) O 20 r 9(1)(a). 7

Commonwealth v Verwayen (1990) 170 CLR 394 at 431–51 , especially 446–9 per Deane J; 451–62, especially 455–62 per Dawson J; 466–73, especially 472–3 per Toohey J; 482–6 per Gaudron J, although see the discussion by the Honourable K R Handley, Estoppel by Conduct and Election, 2nd ed, Thomson Reuters, London, 2016, [15-030]– [15-035]. See also Commonwealth v Mewett (1997) 191 CLR 471 at 534–5 agreeing).

per Gummow and Kirby JJ (Brennan CJ

8

Limitation Act 1969 (NSW) s 68A.

9

See, for example, Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

10 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 73–4,76

, especially at [1]–[37]

; Grant v YYH Holdings Pty Ltd [2012]

NSWCA 360 at [44]–[45] per McColl JA (Tobias AJA agreeing). The rationale for this is that in cases of conversion (for example), the plaintiff must establish title, and the Limitation Act has the effect of extinguishing that title: Grant at [45]. 11 Limitation Act 1985 (ACT) s 45(1); Limitation Act 1969 (NSW) s 68A(1).

26.8 In Chapter 1, attention was drawn to the effects that the passage of time could have on the disposition of disputes.12 Time can harm rectitude of outcome by eroding the quality of evidence (witnesses can forget or die, for instance). Such erosion is not, however, inevitable or uniform, because in some situations evidence may last for a very long time. Some disputes concern interpretation of legislation, or of a document, rather than bare facts, so that the passage of time may be less harmful to the prospects of arriving at a correct decision (although interpretation too may change over time, because it may depend on a changing context). But whatever the prospect of determining the merits, the passage of time may erode the ability of the law to put things right, to enforce rights in a meaningful way and to provide a useful redress. Lastly, it may be unjust to expose a defendant to litigation after a long period of inactivity on the part of the plaintiff, when the defendant had reasonable grounds for conducting its affairs on the basis that its rights would not be questioned. In Brisbane South Regional Health Authority v Taylor ,13 McHugh J identified four rationales for limitation periods: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be

Page 995 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 liabilities beyond a definite period. … … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

A system that allows claims to be brought without any time limit is harmful to the community as a whole. Purchasers would be deterred from acquiring rights from vendors who were once in dispute, for fear that some later litigation would put their acquisition in jeopardy. Other economic aspects, besides property rights, could also be affected. For instance, creditors would not be able to rely on debtors’ present creditworthiness for fear that the debtors might be pursued by dormant claims. Given that uncertainty of rights is inimical to economic activity and economic efficiency, the law must place a limit on the time within which actions can be brought and rights can be disputed.

Page 5 of 63 Chapter 26 Finality of Litigation

12 See Chapter 1, 1.73–1.75. 13 (1996) 186 CLR 541 at 552–3

per McHugh J (Dawson J agreeing) (citations omitted).

26.9 The law of limitation is often presented as a compromise between the interests of defendants and plaintiffs.14 It is said that defendants are interested in short limitation periods as a protection from the deterioration of evidence,15 and in order to be free of the uncertainty of potential litigation. By contrast, plaintiffs are said to be interested in long limitation periods so that they can obtain redress for harm to their rights no matter how long after the relevant events they bring proceedings. However, analysing the law of limitation in this way is unhelpful. First, the fact that a particular person wishes to have a particular procedural advantage cannot of itself count as a reason in favour of granting that advantage. The validity of a plea for a certain procedural advantage must turn on its underlying justification. Secondly, plaintiffs do not form a class with a clear interest in unlimited freedom to sue. Citizens do not know in advance whether they are going to be plaintiffs or defendants. For instance, a house owner could turn out to be a defendant as well as a plaintiff. Most people assume that they are likely to be plaintiffs in litigation arising from road accidents and that to the extent that they are going to be defendants, their liability would be covered by insurance. But if road accident claims could be brought after many years, insurance companies would have to raise premiums in order to make provision for extra risks, which would affect all motorists. Further, the bringing of old stale claims could

Page 996 increase the court’s caseload to such an extent that plaintiffs may have to wait longer. It is therefore suggested that rather than approach the subject of limitation as a class struggle between plaintiffs and defendants, it would be better to look upon the need to place a time limit on commencement of proceedings as just another aspect of the perennial tension between the need to enable litigants to seek a determination of their rights on the merits and the need for timely resolution of disputes.16

14 Law Commission (England and Wales), Consultation Paper No 151, 1998, [1.22]–[1.38]; Limitation of Actions, Law Com No 270, 9 July 2001, [1.6]; in Australia, see, for example, Review of the Law of Negligence, 2002, [6.2]– [6.4];Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era: Final Report, ALRC Report 123, June 2014, [10.76]–[10.78]; Queensland Law Reform Commission, Review of the Limitation of Actions Act 1974 (Qld), Report No 53, September 1998, pp 9–10; South Australian Law Reform Institute, A Statutory Tort for Invasion of Privacy, Final Report 4, March 2016, [381]. 15 Defendants are thought to be more vulnerable to the loss of evidence because they may be unaware of the need to preserve evidence; if they are involved in many similar transactions, they would be unable after a long time to remember the exact circumstances of the transaction affecting the plaintiff: Law Commission (England and Wales), Consultation Paper No 151, 1998, [1.26]. 16 One American commentator has so despaired of the possibility of reaching a satisfactory limitation regime by rules that he argues for the replacement of rules by a discretionary jurisdiction; E J Richardson, ‘Eliminating the Limitations of Limitation Law’ (1997) 29 Arizona State Law Journal 1015. Another American commentator has suggested that the problems inherent in limitation rules can be ameliorated by using findings from psychological research concerning human responses to deadlines, and proposes that a better approach would be to impose an ‘incremental depreciation of the value of plaintiff ’s claim as time passes’: A J Wistrich, ‘Procrastination, Deadlines, and Statutes of Limitation’ (2008) 50 William and Mary Law Review 607.

26.10 For ease of analysis the topic is divided into four groups of questions.17 The first concerns the length of the limitation period and its consequences. The second is concerned with the starting point of limitation periods. The third addresses the problem of judicial discretion to extend the period for bringing an action. The fourth and last

Page 6 of 63 Chapter 26 Finality of Litigation group is concerned with the identification of the steps that have to be taken by the plaintiff to ensure that the action is brought within the period and the consequences of such process. In each of these areas, different arrangements can be devised. Choices made in one area will have a bearing on the choices to be made in other related areas. Furthermore, the choice of rules will be influenced by grand policy preferences, which may require the reconciliation of conflicting goals and conflicting policies.

17 Compare the four areas of debate identified in the excellent analysis of N H Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ (1998) 57 Cambridge Law Journal 589 at 590.

26.11 The Limitation Act in each jurisdiction is the principal, though not the only, statute governing limitation periods. It does not apply to actions for which limitation periods are laid down by other enactments.18 As noted earlier, the time limit for statutory causes of action is usually specified by the statute which creates the cause of action.

18 In all jurisdictions except South Australia, the Act contains an express provision to this effect: Limitation Act 1985 (ACT) s 4; Limitation Act 1969 (NSW) s 7; Limitation Act 1981 (NT) s 3; Limitation of Actions Act 1974 (Qld) s 7; Limitation Act 1974 (Tas) s 38; Limitation of Actions Act 1958 (Vic) s 33; Limitation Act 2005 (WA) s 9.

26.12 Generally, a claim that falls outside the Limitation Act or any other comparable legislation cannot be subject to a limitation period. But there are three important caveats to this. First, claims for equitable relief may be defeated by the equitable doctrines of laches and acquiescence, which bar actions for unreasonable delay.19 Secondly, where an equitable cause of action is equivalent to a cause of action which

Page 997 arises under common law or statute, the limitation period which would have applied to the common law or statutory claim may be applied to the equitable cause of action by analogy, unless it would be unconscionable to do so.20 Finally, even where there is no limitation period, or where proceedings have been commenced within time, proceedings may be permanently stayed as an abuse of process where there has been a delay in commencement. However, such an order is‘exceptional’, and would only be granted where:21 … in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.

19 See, for example, Orr v Ford (1989) 167 CLR 316

; Hourigan v The Trustees Executors and Agency Company Ltd

(1934) 51 CLR 619 . The equitable jurisdiction to refuse relief owing to acquiescence or otherwise is preserved by statute in all jurisdictions: Limitation Act 1985 (ACT) s 6; Limitation Act 1969 (NSW) s 9; Limitation Act 1981 (NT) s 7; Limitation of Actions Act 1974 (Qld) s 43; Limitation of Actions Act 1936 (SA) s 26; Limitation Act 1974 (Tas) s 36; Limitation of Actions Act 1958 (Vic) s 31; Limitation Act 2005 (WA) s 80.But note that claims for equitable relief are subject to a statutory limitation period in the Australian Capital Territory and Western Australia: Limitation Act 1985 (ACT) s 11 and Dictionary; Limitation Act 2005 (WA) s 27.

Page 7 of 63 Chapter 26 Finality of Litigation 20 See, for example, Gerace v Auzhair Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 (see especially at [34] and [70] per Meagher JA (Beazley P and Emmett JA agreeing)). In that case, claims against company directors for breaches of their fiduciary duties to the company were found to be analogous to claims for breaches of statutory duties under the Corporations Act. 21 Connellan v Murphy [2017] VSCA 116 at [54(4)] (per curiam) (citations omitted)and see at [54] generally as to the other criteria. See also Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6],[15],[69]–[70] permanently stayed).

per Gleeson CJ, Gummow, Hayne and Crennan JJ (proceedings commenced within time but

The length of the limitation period and its consequences

26.13 Each Limitation Act provides different limitation periods for different types of actions.22 The most common limitation period is six years. In all jurisdictions except the Northern Territory, this governs actions in contracts and tort, with the exception of personal injuries litigation.23 With regard to the most frequent of actions, personal injuries actions, the limitation period is three years.24 Personal injuries are defined in each of the Limitation Acts as including a disease or impairment of the physical or mental condition of a person.25 But the limitation period for defamation actions is only one year,26 whereas for some actions (often, actions concerning real property),

Page 998 it may be as long as 12 or 15 years.27 In the Australian Capital Territory, New South Wales, the Northern Territory, Queensland and Victoria, the Limitation Act provides expressly that there is no limitation period for certain causes of action arising out of the abuse of a child.28 In the Northern Territory and Queensland, no limitation period applies to personal injury claims arising from dust diseases.29

22 The limitation periods are contained in Limitation Act 1985 (ACT) Pt 2; Limitation Act 1969 (NSW) Pt 2; Limitation Act 1981 (NT) Pt 2; Limitation of Actions Act 1974 (Qld) Pt 2; Limitation of Actions Act 1936 (SA) Pts 2–5; Limitation Act 1974(Tas) Pt 2; Limitation of Actions Act 1958 (Vic) Pt 1;Limitation Act 2005 (WA) Pt 2. 23 Limitation Act 1985 (ACT) s 11; Limitation Act 1969 (NSW) s 14; Limitation of Actions Act 1974 (Qld) s 10; Limitation of Actions Act 1936 (SA) s 35; Limitation Act 1974 (Tas) s 4; Limitation of Actions Act 1958 (Vic) s 5; Limitation Act 2005 (WA) s 6. In the Northern Territory, the limitation period for all actions in contract and tort is three years: Limitation Act 1981 (NT) s 12. In Western Australia, actions for trespass, assault, battery and imprisonment are also excepted from the general limitation period, and instead have a limitation period of three years: Limitation Act 2005 (WA) s 16. 24 Limitation Act 1985 (ACT) s 16B; Limitation Act 1969 (NSW) s 50C; Limitation Act 1981 (NT) s 12; Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936(SA) s 36; Limitation Act 1974 (Tas) s 5A; Limitation of Actions Act 1958 (Vic) s 27D; Limitation Act 2005 (WA) s 14. 25 Limitation Act 1985 (ACT) Dictionary; Limitation Act 1969 (NSW) s 11(1); Limitation Act 1981 (NT) s 4; Limitation of Actions Act 1974 (Qld) s 5; Limitation of Actions Act 1936 (SA) s 36(2); Limitation Act 1974 (Tas) s 5A(2); Limitation of Actions Act 1958 (Vic);Limitation Act 2005 (WA) s 3. 26 Limitation Act 1985 (ACT) s 21B(1); Limitation Act 1969 (NSW) s 14B; Limitation Act 1981 (NT) s 12(2)(b); Limitation of Actions Act 1974 (Qld) s 10AA; Limitation of Actions Act 1936 (SA) s 37(1); Defamation Act 2005 (Tas) s 20A(1); Limitation of Actions Act 1958 (Vic) s 5(1AAA); Limitation Act 2005 (WA) s 15. 27 See, for example, the 12-year limitation periods for various actions concerning real estate: Limitation Act 1985 (ACT) ss 23 and 24; Limitation Act 1969 (NSW) ss 41 and 42; Limitation Act 1981 (NT) ss 26 and 27; Limitation of Actions Act 1974 (Qld) ss 13, 20 and 26; Limitation Act 1974 (Tas) ss 10, 18 and 23; Limitation Act 2005 (WA) ss 19, 20 and 23– 25.There are 15-year limitation periods for various actions concerning real estate in South Australia and Victoria: Limitation of Actions Act 1936 (SA) ss 4, 27 and 33; Limitation of Actions Act 1958 (Vic) ss 8, 15 and 20. 28 Limitation Act 1985 (ACT) s 21C; Limitation Act 1969 (NSW) s 6A; Limitation Act 1981 (NT) s 5A; Limitation of Actions Act 1974 (Qld) s 11A; Limitation of Actions Act 1958(Vic) Div 5. 29 Limitation Act 1981 (NT) s 12(2)(a); Limitation of Actions Act 1974 (Qld) s 11(2).

Page 8 of 63 Chapter 26 Finality of Litigation

26.14 The differentiation between the various types of actions can give rise to issues of classification. For example, where a person enters into a contract to obtain professional services, and the services are provided negligently, there might be a cause of action for breach of contract as well as a cause of action in negligence. In some jurisdictions, this possibility is dealt with expressly by the Limitation Act: the usual position is that if two limitation periods are applicable, the action will be statute-barred after the earliest limitation period has expired.30

30 Limitation Act 1985 (ACT) s 10; Limitation Act 1969 (NSW) s 13; Limitation Act 1981 (NT) s 11. But cf Limitation Act 2005 (WA) s 52: this applies only to causes of action which accrue to a person under the age of 18 years, and provides that the longer limitation period will apply.

26.15 In addition to placing a limit on the period in which an action may be brought, the law sometimes places a time limit on the survival, or the formation, of a cause of action, known as a ‘long-stop’ provision. This is discussed separately below.31

31 See 26.26 and 26.54–26.55 below.

The start of the limitation period Date of accrual of cause of action

26.16 Having determined the length of the limitation period applicable to a particular claim, one must then ascertain a starting point. Since limitation rules seek to place an outer limit on the possibility of bringing proceedings, it is natural to choose as the starting point the earliest time at which the plaintiff could theoretically advance its claim.32 The general rule is that the limitation period starts to run when the cause of action accrues, though there are numerous exceptions, as we shall see presently. A cause of action accrues when all the facts that the plaintiff has to prove in order to establish the right to the remedy claimed are in existence.33 Another way of putting it

Page 999 is to say that a cause of action accrues when the last element constituting it has come into existence.

32 Reeves v Butcher [1891] 2 QB 509 per Campbell J.

(CA); O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906 at [46]

33 Do Carmo v Ford (1984) 154 CLR 234 at 245

per Wilson J; AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139;

[2015] WASCA 63 at [138] per Buss JA. Note, however, that special provisions apply to determining the date of accrual for claims in relation to land in most jurisdictions:Limitation Act 1969 (NSW) Pt 2 Div 3; Limitation of Actions Act 1974 (Qld) Pt 2; Limitation of Actions Act 1936 (SA) Pt 2; Limitation Act 1974 (Tas) Pt 2 Div 3; Limitation of Actions Act 1958 (Vic) Pt 1 Div 3; Limitation Act 2005(WA) Pt 4 Div 2; cf Limitation Act 1985 (ACT) s 5(a). Some jurisdictions also have special provisions for the accrual of specific types of claim: see generally Limitation Act 2005 (WA) Pt 4 Div 1.

Page 9 of 63 Chapter 26 Finality of Litigation

26.17 However, two qualifications must be mentioned. The first concerns situations where the plaintiff needs to fulfil some procedural requirement before asserting its claim, such as providing a bill in a specified form. In such situations, time will start to run from the point at which the cause of action is complete, even if the procedural requirement has not yet been complied with.34 The second qualification relates to situations where there is no party capable of suing or of being sued, as where the plaintiff is an unborn child, or the defendant is a deregistered company. As a general rule, the limitation period cannot commence unless there is a party capable of suing and a party capable of being sued.35 For example, in the case of an unborn child, any cause of action accrues on birth.

34 For instance, a solicitor cannot commence legal proceedings in respect of unpaid costs unless a bill which complies with the relevant law and rules has been given, and at least 30 days have expired since the client was given the bill: see,for example, Legal Profession Uniform Law (NSW) s 194; Legal Profession Uniform Law Application Act 2014 (Vic) s 194. The legislation reflects a longstanding principle. In such cases, the cause of action accrues when the work is complete, even though the solicitor cannot commence proceedings until some time later: Coburn v Colledge [1897] 1 QB 702

(CA); Edwards v Bray [2011] 2 Qd R 310; [2011] QCA 72 at [22]–[24]

and Ann Lyons JJA agreeing); Coshott v Barry [2012] NSWSC 850 at [41]–[43] Foster [2015] VSC 230 at [219]–[226]

per Margaret Wilson AJA (White per McCallum J; Batrouney v

per Robson J.

35 Hawkins v Clayton (1988) 164 CLR 539 at 562

per Brennan J; AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139;

[2015] WASCA 63 at [138] per Buss JA. For example, where goods are converted after the owner has died intestate, time would only run from the date letters of administration were taken out: Thomson v Lord Clanmorris [1900] 1 Ch 718 (CA) at 728–9 per Vaughan-Williams LJ.

26.18 In many cases it would be relatively easy to determine the time at which the cause of action accrues. In actions for breach of contract, for example, the accrual of the cause of action and the breach will often coincide. Thus, in claims where the breach is a failure to perform (such as the non-payment of a debt), the limitation period begins to run from the date on which performance was required (such as the stipulated date of repayment). Some contracts may even make express provision for the accrual of the right to sue. Accrual is also straightforward in torts that are actionable per se, such as trespass and libel, in which case the limitation period starts to run when the wrongful act was committed, not when the harm occurred.

26.19 However, where the cause of action depends on the occurrence of harm, as it does in most tort actions and in some contract actions, the point of accrual presents greater difficulty because the harm may not be apparent to the person who suffered it. A cause of action in negligence is complete when the plaintiff can establish ‘duty, breach, and damage caused by the breach’.36 The general rule is that the time begins

Page 1000 to run when the cause of action is complete, even if the harm remained unknown until a later time.37 On the other hand, it also follows from this general rule that where there has been an act or omission which can be expected to cause loss at a later date, the cause of action will not accrue until the loss has in fact been suffered.38

Page 10 of 63 Chapter 26 Finality of Litigation

36 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16 at [5] Heydon and Crennan JJ. 37 Cartledge v E Jopling and Sons Ltd [1963] AC 758

per Gleeson CJ, Gummow, Kirby, Hayne,

; [1963] 1 All ER 341 (HL)

; Do Carmo v Ford (1984) 154 CLR

234 at 241 per Wilson J; Hawkins v Clayton (1988) 164 CLR 539 at 561 per Brennan J, 587 per Deane J. This is so, even though it may lead to unjust outcomes in particular cases, as observed by Brennan J in Hawkins v Clayton (1988) 164 CLR 539 at 560

, discussing Cartledge.

38 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16

is an example of such a case.

26.20 Quite apart from the problem of knowledge, the determination of the date of harm may be far from straightforward. The difficulty may be illustrated using an example of a claim for negligently inflicted economic loss. In Commonwealth v Cornwell,39 an employee of the Commonwealth had, in 1965, received negligent advice concerning his entitlement to join a superannuation fund. He had not joined the fund until 1976, when he had taken on a new position. The employee retired in 1994, and commenced proceedings in 1999, seeking to recover the additional entitlements which he would have received had he joined the fund in 1965. A majority of the High Court held that the claim was not statute-barred, because the loss was only suffered by the employee upon his retirement. Accordingly, the cause of action was only complete at that date.40 The general position for tort cases involving economic loss is that the cause of action accrues when the plaintiff actually suffers loss because of the negligent or wrongful act or advice.41 In other words, the cause of action does not accrue at the time of the act causing the loss, even if it is likely or virtually certain that loss will later be suffered.42 The date on which loss occurs (and the loss for which the defendant is liable) will be highly fact-sensitive.43

39 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16 . Although the plaintiff had relied on several causes of action at first instance, the High Court was concerned only with the date of accrual of the claim in tort: at [3] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. 40 Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16 at [16]–[19] Hayne, Heydon and Crennan JJ.

per Gleeson CJ, Gummow, Kirby,

41 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526,527 McHugh JJ.

per Mason CJ, Dawson, Gaudron and

42 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 524–5 McHugh JJ.

per Mason CJ, Dawson, Gaudron and

43 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 192 CLR 413; [1999] HCA 25

.

26.21 Another category of claim that requires particular care is claims arising from latent defects in building works. The difficulty which arises is that negligence in design or construction may only become apparent many years later. The present Australian approach is that defects become actionable when they ‘[become] manifest, in the sense of being discoverable by reasonable diligence’.44

Page 11 of 63 Chapter 26 Finality of Litigation 44 Hawkins v Clayton (1988) 164 CLR 539 at 587–8

per Deane J (see also at 543 per Mason CJ and Wilson J); Pirelli

General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1

; [1983] 1 All ER 65 (HL)

.

26.22 It is possible that one set of facts may ground causes of action which have different dates of accrual. For example, where the defendant owed the plaintiff duties in both contract and tort, the contractual cause of action will accrue from the date of

Page 1001 breach, whereas the tortious cause of action accrues on the date of loss,45 which may not be the same.

45 Argyropoulos v Layton [2002] NSWCA 183 at [5]

per Handley JA (Hodgson JA agreeing).

Date of knowledge in personal injuries actions

26.23 It would be unjust to allow a claim to become statute-barred before the plaintiff has been able to discover the harm and realise that they have a cause of action, especially in personal injuries actions where the limitation period is relatively short.46 In every Australian jurisdiction, there is some provision which accommodates the possibility that a personal injury claim might not be able to be brought within the usual time limits. However, the form of the provision varies. In some jurisdictions,the court has a discretionary power to extend the limitation period; the court’s power to extend a limitation period will be discussed later.47 In other jurisdictions, however, the problem is circumvented in the case of personal injury claims by altering the date on which time starts to run.

46 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.11]–[6.13], [6.15]. 47 See 26.48–26.57 below.

26.24 In the Review of the Law of Negligence: Final Report commissioned by the Federal Government in 2002, the panel observed that there were particular difficulties in identifying a date for the commencement of the limitation period where the cause of action concerned a personal injury. In particular, it was necessary to identify a date which would operate fairly across a diverse range of claims, including those in which the damage was suffered ‘immediately or soon after the accident’, those in which the damage did not emerge until much later, and those in which the damage accrued progressively.48 The panel recommended the date of discoverability as the date from which the limitation period for personal injuries claims should run;49 that is, the date on which the plaintiff knew or ought to have known that the injury occurred, was attributable to the negligence of the defendant, and was sufficiently serious to warrant bringing proceedings.50 The panel considered that this date would provide a fair way of dealing with the broad spectrum of personal injuries claims, and would enable the date of commencement to be determined relatively easily, as it would depend on when a ‘reasonable’person should have acquired knowledge, rather than the subjective knowledge of the plaintiff.51 However, as we shall presently see, what the discoverability test gains in terms of justice it loses in terms of certainty, as the Report acknowledged.52 Furthermore, the inevitable complexity of the test creates considerable scope for disputes about its interpretation.

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Page 1002

48 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.11]–[6.12]. 49 The other possibilities considered were the date of the event, the date of accrual of the cause of action, and the date when damage occurred: Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.13]–[6.17]. 50 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.19]. 51 See generally Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.20]–[6.28]. 52 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.30].

26.25 In New South Wales, Tasmania and Victoria, the limitation period in respect of a personal injury claim runs from the date on which the cause of action is discoverable by the person injured.53 The New South Wales Limitation Act provides in s 50D that:54 (1)

For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)

A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3)

In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

…

The Victorian provisions are virtually identical in their terms.55 The Tasmanian provision defines discoverability in terms which are substantially the same as s 50D(1) above, but do not include the additional qualifications in s 50D(2) and (3).56

53 Limitation Act 1969 (NSW) s 50C(1); Limitation Act 1974 (Tas) s 5A(3); Limitation of Actions Act 1958 (Vic) s 27D. 54 Limitation Act 1969 (NSW) s 50D: ‘Date cause of action is discoverable’. 55 Limitation of Actions Act 1958 (Vic) s 27F. 56 Limitation Act 1974 (Tas) s 2, ‘date of discoverability’.

26.26 In New South Wales, Tasmania and Victoria, the usual limitation period is three years from the date of discoverability. However, there is also a ‘long-stop’ provision. This provides that the limitation period will expire 12 years after the date of the act or omission said to have caused the loss.57 In New South Wales and Tasmania, the

Page 13 of 63 Chapter 26 Finality of Litigation long-stop limitation period may be extended with the leave of the court,58 but the court has no power to extend the three-year limitation period.59 In Victoria, either period may be extended.60 The purpose of the ‘long-stop’ provision is to avoid the unfairness to the defendant that might otherwise result if the limitation period was extended ‘interminably’ beyond the date of the defendant’s act or omission, through the application of the discoverability test.61

57 Limitation Act 1969 (NSW) s 50C(1)(b); Limitation Act 1974 (Tas) s 5A(3)(b); Limitation of Actions Act 1958 (Vic) s 27D(1)(b). 58 Limitation Act 1969 (NSW) s 62A; Limitation Act 1974 (Tas) s 5A(5). 59 This is consistent with the recommendations in the Report: Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.37]–[6.39], and cf [6.27]. 60 Limitation of Actions Act 1958 (Vic) s 27K. 61 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.30]–[6.34].

26.27 Some of the factors which make up the definition of knowledge require definitions of their own. The question of sufficient seriousness in s 50D(1)(c) engages

Page 1003 both medical and legal considerations,62 including consideration of the statutory provisions which place upper and lower limits on recoverability.63 The question of fault in s 50D(1)(b) has been addressed differently in different jurisdictions. In Victoria, it is necessary that the plaintiff knew that the defendant had some ‘degree of culpability or blame on behalf of the person who caused the damage’.64 Conversely, in New South Wales, this approach has been rejected, and it has been held that the ‘“fact” contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other’.65 However, in both jurisdictions, it is insufficient merely to know that the defendant caused the act or omission leading to injury.66 Section 50D(2) raises the question of what are ‘all reasonable steps’. In New South Wales, instructing a solicitor is ‘sufficient’ ‘[i]n most circumstances’ to satisfy this requirement.67

62 New South Wales v Gillett [2012] NSWCA 83 at [70] agreeing).

per Beazley JA (McColl, Campbell,Young and Whealy JJA

63 Baker-Morrison v New South Wales [2009] NSWCA 35 at [41]–[42] agreeing). 64 Spandideas v Vellar [2008] VSC 198 at [32] per Lansdowne AsJ.

per Basten JA (Ipp and Macfarlan JJA

per Kaye J; see also Angeleska v Victoria [2013] VSC 598 at [151]

65 Baker-Morrison v New South Wales [2009] NSWCA 35 at [29] 66 Baker-Morrison v New South Wales [2009] NSWCA 35 at [30] Spandideas v Vellar [2008] VSC 198 at [32]–[33]

per Basten JA (Ipp and Macfarlan JJA agreeing);

per Kaye J,cf [28]–[30].

67 Baker-Morrison v New South Wales [2009] NSWCA 35 at [58] New South Wales v Gillett [2012] NSWCA 83 at [70] Whealy JJA agreeing).

per Basten JA (Ipp and Macfarlan JJA agreeing).

per Basten JA (Ipp and Macfarlan JJA agreeing);

, see also [104]per Beazley JA (McColl, Campbell, Young and

Page 14 of 63 Chapter 26 Finality of Litigation

26.28 A plaintiff who takes all reasonable steps in seeking expert advice on its cause of action will not be fixed with knowledge which the expert advice does not, in fact, reveal. In New South Wales v Gillett, the respondent had initially been told by counsel that his claim against the police had no prospects of success. He sought a second opinion some years later, having taken various steps in the meantime in relation to internal police complaints procedures. The court found that the cause of action was not discoverable until the second opinion — even though it was based on much the same material as the first opinion — because the respondent had taken all reasonable steps.68

68 New South Wales v Gillett [2012] NSWCA 83 at [36]–[38],[90]–[110] and Whealy JJA agreeing).

per Beazley JA (McColl, Campbell, Young

26.29 As was stated earlier, the discoverability test has the potential to create uncertainty. As has been seen in the preceding paragraphs, each element of the test has the potential to lead to ambiguity in meaning and therefore uncertainty in application.Although there is merit in preventing a plaintiff becoming statute-barred before they were able to discover the existence of a cause of action, the discoverability test is an imperfect solution to this problem.

26.30 It is particularly difficult to justify the fact that, under the present test, the cause of action will not be treated as discoverable until the plaintiff knew (or ought to have known) that it was caused by the fault of the defendant. If the purpose of the

Page 1004 discoverability rule is to identify the time at which the plaintiff ought to have started their investigations of the claim, then there is a good case for saying that knowledge of the injury, and knowledge that it is‘sufficiently serious’ to justify bringing a claim, should be enough to put the plaintiff on inquiry, and to start time running for limitation purposes.

26.31 The special treatment afforded to personal injury claims becomes harder to justify when one compares the position to that of claims for economic loss, by way of example. A person who has received negligent investment advice may have a cause of action against their financial adviser. As has been seen earlier, the cause of action will not accrue until loss is actually suffered.69 However, a plaintiff who has suffered such loss may reasonably believe that their loss has been caused by the usual vicissitudes of investment, such as an economic downturn. In such a case, the limitation period will, nevertheless, begin to run from the time at which the loss occurs. This has the effect that plaintiffs are put on inquiry from the point at which the loss occurs: whether or not the loss is attributable to the fault of the defendant is treated as a matter which the plaintiff must investigate while time is running.

69 See 26.19–26.20 above.

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26.32 The South Australian provision avoids the uncertainty of the ‘discoverability’ date by providing simply that in the case of a latent personal injury, time ‘begins to run when the injury first comes to the [plaintiff’s]knowledge’.70 Thus, time begins from the point at which the plaintiff actually knew that they had an injury; knowledge about how the injury was caused is irrelevant.

70 Limitation of Actions Act 1936 (SA) s 36(1)(a).

26.33 In the Northern Territory, Queensland and Western Australia, there is no special provision for the date of knowledge of a personal injuries claim. Rather, the limitation period is calculated from the date of accrual.71 However, in each of these jurisdictions, there is provision to extend the limitation period. These provisions will be addressed in a later section of this chapter.72

71 Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 11; Limitation Act 2005 (WA) s 14(1). 72 See 26.48–26.57 below.

26.34 The Australian Capital Territory has a hybrid provision: the usual position is that a personal injury claim must be brought within three years of the occurrence of the injury, unless the injury includes a ‘disease or disorder’,in which case the limitation period is three years from the date on which the plaintiff knew that they had suffered such an injury, and that it was ‘related to’ the act or omission of another.73 There is also specific provision to extend the limitation period for personal injury claims.74

73 Limitation Act 1985 (ACT) s 16B(2). 74 Limitation Act 1985 (ACT) s 36.

Effect of disability on the running of the limitation period

26.35 In all jurisdictions, the Limitation Act provides that time will not run for the purpose of a limitation period whilst a person to whom a cause of action has accrued

Page 1005 is under a disability. In some jurisdictions, this is referred to as a postponement of the time-bar; in others, it is referred to as a suspension or an extension of the limitation period. As will be seen, whilst all jurisdictions make provision for plaintiffs who are under a disability, there are some critical differences in how these provisions operate

Page 16 of 63 Chapter 26 Finality of Litigation between jurisdictions.

26.36 In all jurisdictions, a person will be treated as being under a legal disability for any period in which they are unable to administer their affairs owing to a mental disability (the precise definition varies between jurisdictions).75 In all jurisdictions except Western Australia, a person under the age of 18 years will also be treated as under a legal disability.76 In some jurisdictions, there is also provision for a person to be treated as being under a disability where they are unable to manage their affairs in relation to the cause of action owing to war, or where they are detained or imprisoned(either following a conviction, or pursuant to some statutory power).77

75 Limitation Act 1985 (ACT) Dictionary; Limitation Act 1969 (NSW) ss 11(3), 50F(2) and (4); Limitation Act 1981 (NT) s 4; Limitation of Actions Act 1974 (Qld) s 5(2) and (3); Limitation of Actions Act 1936 (SA) s 45(2); Limitation Act 1974 (Tas) s 2(2) and (3); Limitation of Actions Act 1958 (Vic) s 3(2) and (3); Limitation Act 2005 (WA) s 3. 76 In Western Australia, there is, however, special provision for the court to extend the time for a cause of action to be commenced where the plaintiff was under the age of 18 years, and it was not reasonable for a guardian to commence the action within time: Limitation Act 2005 (WA) s 41. On such an application, the court may extend the time for commencing up until the date on which the plaintiff turns 21. 77 As to disabilities relating to war, see Limitation Act 1985 (ACT) Dictionary; Limitation Act 1969 (NSW) ss 11(3)(b)(iii), (iv) and 50F(4). As to disabilities relating to detention or imprisonment,see Limitation Act 1969 (NSW) ss 11(3)(ii) and 50F(4); Limitation Act 1981 (NT) s 4.

26.37 The provision operates differently in each jurisdiction. In Queensland, Tasmania and Victoria, the Limitation Act provides that if a person to whom a right of action accrues was under a disability ‘on the date on which a right of action accrued’, then the limitation period will generally be six years (with some exceptions), calculated from the date on which they ceased to be under a disability or died (whichever occurs first).78 The extended limitation period therefore requires that the plaintiff be under the disability at the date of accrual. It is suggested that this protection is unduly limited since it does not help a person who develops a disability after the limitation period has started to run. In these circumstances, the rule has the potential to operate in a manner which is adventitious, and therefore unjust.

78 Limitation of Actions Act 1974 (Qld) s 29(1); but see also (2) and (3); Limitation Act 1974 (Tas) s 26; Limitation of Actions Act 1958 (Vic) s 23.

26.38 In the other jurisdictions, the Limitation Act provides that where a person to whom a right of action has accrued is under a disability, the running of the limitation period will be suspended for the period of the disability.79 Thus, a person who has a right of action will not be penalised for failing to take steps to pursue it for the period of any legal disability, irrespective of whether that legal disability was operative at the date of accrual.

Page 1006

Page 17 of 63 Chapter 26 Finality of Litigation

79 Limitation Act 1985 (ACT) s 30; Limitation Act 1969 (NSW) s 52; Limitation Act 1981 (NT) s 36; Limitation of Actions Act 1936 (SA) s 45(1), see also (3); Limitation Act 2005 (WA) s 35.

26.39 It is of course right that a person under a disability should not be penalised for failing to proceed with an action. However, the breadth of the rule is unsatisfactory in one respect. In all jurisdictions except Western Australia, the Limitation Act treats alike people under a disability who have a parent or guardian and those who have none (conversely, in Western Australia, the suspension applies only for the period in which the person is without a guardian).80 It seems unnecessary to disapply the limitation rule in relation to disabled persons whose interests are in the care of competent parents or guardians.81

80 Limitation Act 2005 (WA) s 35(1)(b). A similar provision exists in New South Wales, but only in relation to personal injury claims: Limitation Act 1969 (NSW) s 50F. 81 Treasury, Review of the Law of Negligence: Final Report, September 2002, [6.46]–[6.49] made recommendations to this effect.

Fraud, concealment and mistake

26.40 It is important that special provision is made for causes of action based on fraud, and cases in which the defendant has concealed its wrongdoing, in order to ensure that defendants do not profit from their own wrong and cannot evade limitation periods by ‘covering their tracks’. Further, where a cause of action is based on mistake, it would be nonsensical for time to run from the occurrence of the event constituting the mistake: the very basis of the cause of action is that the plaintiff is seriously mistaken about an important matter, and the defendant has failed to correct its misapprehension.82 Again, it would also serve to enable the defendant to profit from its own wrongdoing.

82 As to the equitable doctrine of mistake, see, for example, Taylor v Johnson (1983) 151 CLR 422

.

26.41 Specific provision is made for fraud, concealment and mistake in almost all jurisdictions. The details of the provisions vary between the jurisdictions, but there are two distinct patterns. The Victorian Limitation of Actions Act expresses the rule in simple terms:83 Where, in the case of any action for which a period of limitation is prescribed by this Act— (a)

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b)

the right of action is concealed by the fraud of any such person as aforesaid; or

(c)

the action is for relief from the consequences of a mistake—

Page 18 of 63 Chapter 26 Finality of Litigation the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it …

The Queensland and Tasmanian provisions are in virtually identical terms.84 Thus, the provision addresses (a) causes of action based on fraud; (b) the fraudulent concealment of any cause of action; and (c) actions concerning mistakes.

Page 1007

83 Limitation of Actions Act 1958 (Vic) s 27. 84 Limitation of Actions Act 1974 (Qld) s 38; Limitation Act 1974 (Tas) s 32.

26.42 A different pattern in used in the Australian Capital Territory, New South Wales and the Northern Territory. The provision concerning mistake is expressed in different terms, but is substantially to the same effect.85 However, there are some important differences in the detail in respect to fraud and fraudulent concealment. First, the limitation period is extended for causes of action based on fraud or deceit86 — potentially a broader category. Secondly, the fraudulent concealment applies to a wider range of concealed facts: in New South Wales and the Northern Territory, the postponement applies where a cause of action or the identity of the defendant is ‘fraudulently concealed’.87 In the Australian Capital Territory, the provision is slightly broader again: the postponement applies where ‘a fact relevant to a cause of action’, or the identity of a defendant, is ‘deliberately concealed’.88

85 Limitation Act 1985 (ACT) s 34; Limitation Act 1969 (NSW) s 56; Limitation Act 1981 (NT) s 43. 86 Limitation Act 1985 (ACT) s 33(1)(a); Limitation Act 1969 (NSW) s 55(1)(a); Limitation Act 1981 (NT) s 42(1)(a). 87 Limitation Act 1969 (NSW) s 55(1)(b); Limitation Act 1981 (NT) s 42(1)(b). 88 Limitation Act 1985 (ACT) s 33(1)(b).

26.43 Thus, these three jurisdictions make express reference to the possibility of the defendant’s identity being concealed, creating the potential for the provisions to operate more broadly than in Queensland, Tasmania and Victoria. In the Australian Capital Territory, the postponement applies more widely still, to situations in which ‘a fact relevant to a cause of action’ is concealed.

26.44 South Australia and Western Australia take quite a different approach. In South Australia, it is provided that:89 In every case of a concealed fraud, the right of any person to bring equitable proceedings for the recovery of any land or rent of which he or any person through whom he claims has been deprived by that fraud shall be deemed to have first accrued at and not before the time when that fraud was or with reasonable diligence might have been first known or

Page 19 of 63 Chapter 26 Finality of Litigation discovered …

This provision is very narrow.90 However, in South Australia, the court has a general discretion to extend the limitation period (which will be discussed in a later part of this chapter):91 the terms of this provision will cover many situations of fraud, fraudulent concealment or mistake. In Western Australia, the Limitation Act makes specific provision for extending the time for commencing proceedings up to three years if the failure to start within time ‘was attributable to fraudulent or other improper conduct of the defendant’.92

89 Limitation of Actions Act 1936 (SA) s 25(1). 90 See the remarks in Ross v Perpetual Trustees Victoria Ltd [2017] SASC 61 at [56]–[60]

per Roder J.

91 See 26.51–26.52 below. 92 Limitation Act 2005 (WA) s 38.

Confirmation of rights

26.45 All jurisdictions have some provision for the limitation period to be ‘renewed’ if the defendant confirms the cause of action. The provisions are not consistent across the jurisdictions; they fall into two categories.

Page 1008

26.46 First, in the Australian Capital Territory, New South Wales, the Northern Territory and Western Australia, there is a general provision, applicable in all causes of action.93 In short, if the defendant confirms the cause or action after the date of accrual, but before the end of the limitation period,94 then the limitation period will be calculated from the date of confirmation or acknowledgment. Confirmation may occur in two principal ways. It might take the form of a written and signed acknowledgment of the right of the person to whom the acknowledgment is made.95 Alternatively, a part payment in relation to the right may also serve as a confirmation.96

93 Limitation Act 1985 (ACT) s 32; Limitation Act 1969 (NSW) s 54; Limitation Act 1981 (NT) s 41; Limitation Act 2005 (WA) s 47. 94 A confirmation after the limitation period has expired does not start time running afresh: this is provided expressly in each legislative provision; and see also Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 at 565 Wilson J (Murphy J agreeing), 572 per Brennan J.

per

95 Limitation Act 1985 (ACT) s 32(2)(a)(i) and (4); Limitation Act 1969 (NSW) s 54(2)(a)(i) and (4); Limitation Act 1981 (NT) s 41(2)(a)(i); Limitation Act 2005 (WA) ss 46(1)(a) and 48. 96 Limitation Act 1985 (ACT) s 32(2)(a)(ii) and (3); Limitation Act 1969 (NSW) s 54(2)(a)(ii) and (3); Limitation Act 1981 (NT) s 41(2)(a)(ii) and (3); Limitation Act 2005 (WA) s 46(b) and (c).

26.47

Page 20 of 63 Chapter 26 Finality of Litigation Conversely, in Queensland, South Australia, Tasmania and Victoria, the circumstances in which the postponement will operate are more limited. In those jurisdictions, the date of acknowledgment or part payment will only be treated as the date on which time starts to run for certain causes of action. The precise terms of the Limitation Acts vary, but commonly include causes of action to recover land or to recover a debt.97

97 Limitation of Actions Act 1974 (Qld) s 35; Limitation of Actions Act 1936 (SA) ss 21 and 42; Limitation Act 1974 (Tas) s 29; Limitation of Actions Act 1958 (Vic) s 24.

Discretion to extend the limitation period

26.48 No matter how well a law of limitation manages to balance the conflicting demands of justice, there will always be some cases in which it might be felt that one or other of the litigants would suffer an injustice if the rules were strictly followed. However, Australian Limitation Acts do not make room for discretion to extend the limitation period except in a very few types of claims.

26.49 There are two general approaches taken in the Limitation Acts. In the Northern Territory and South Australia, there is a general discretion to extend the limitation period. This general discretion applies to all causes of action; however, as will be seen, it is extremely limited.

26.50 In the remaining six jurisdictions (the Australian Capital Territory, New South Wales, Queensland, Tasmania, Victoria and Western Australia), there is no general discretion. Rather, there are specific provisions which enable the court to extend the limitation period in certain types of claims. In all jurisdictions (including the Northern Territory and South Australia), there are specific extension provisions for defamation claims, and in New South Wales, Queensland, Tasmania, Victoria and Western Australia there are extension provisions for personal injury claims: this is unsurprising, given that these types of actions have limitation periods which are comparatively short.

Page 1009 The personal injury discretion, and the defamation discretion, will be addressed separately below.98 It should also be noted, though, that in some jurisdictions, there are also miscellaneous additional provisions. For example, in the Australian Capital Territory, a limitation period may be extended where there has been latent damage to property;99 in Tasmania, special provision is made for shipping claims.100

98 See 26.53–26.57 in relation to personal injury claims, and 26.58–26.60 in relation to defamation claims. 99 Limitation Act 1985 (ACT) s 40. 100 Limitation Act 1974 (Tas) s 8.

General discretion to extend the limitation period

26.51

Page 21 of 63 Chapter 26 Finality of Litigation As noted above, there is a general discretion to extend the limitation period in the Northern Territory and South Australia only. This section is limited to a discussion of the position in those jurisdictions. The general provisions are similar in the Northern Territory and South Australia. There are two alternative circumstances in which the court may extend the limitation period (in each circumstance, the court must also be satisfied that it is just to grant the extension in the circumstances of the case). First, the court must be satisfied that ‘facts material to the plaintiff’s case’ were only discovered by the plaintiff in the 12 months prior to the expiry of the limitation period, or after the expiry of the limitation period, and that the plaintiff brought proceedings within 12 months of discovering those facts.101 Alternatively, the court must be satisfied that the plaintiff ’s failure to bring the proceedings within the limitation period:102 … resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances.

At first blush, this may seem similar to the provisions for postponing the limitation period where the defendant has concealed a cause of action.103 However, these provisions are broader: although they refer to the fact of the defendant’s ‘representations or conduct’, no particular representations or conduct are required. Rather, the extension provisions in the Northern Territory and South Australia focus attention on the reasonableness of the plaintiff ’s response. In fact, it is unnecessary for the ‘representations or conduct’ to emanate from the defendant; it is sufficient that it comes from a person who the plaintiff reasonably (but perhaps mistakenly) believes is acting on behalf of the defendant.

101 Limitation Act 1981 (NT) s 44(3)(b)(i); Limitation of Actions Act 1936 (SA) s 48(3)(b)(i). 102 Limitation Act 1981 (NT) s 44(3)(b)(ii); Limitation of Actions Act 1936 (SA) s 48(3)(b)(ii). 103 See 26.40–26.44 above. As noted earlier, the South Australian provisions concerning concealed fraud are limited in any event to only equitable proceedings for the recovery of land or rent.

26.52 In respect of the first alternative, the South Australian legislation provides that a fact will only be treated as material where it ‘forms an essential element of the plaintiff ’s cause of action’ or ‘would have major significance on an assessment of the plaintiff ’s loss’.104 This modifies the previous position (which would still apply in the Northern Territory). In an appeal concerning the South Australian legislation in

Page 1010 an earlier form — which, like the present Northern Territory Act,did not include any provision defining ‘material facts’ — the High Court held that:105 A fact is material to the plaintiff ’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case.

The South Australian legislation also sets out the matters to which the court should have regard in determining whether it is just to extend the limitation period in the circumstances of the case.106

104 Limitation of Actions Act 1936 (SA) s 48(3a); see also the example provided in the Act. 105 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636

(per curiam).

Page 22 of 63 Chapter 26 Finality of Litigation 106 Limitation of Actions Act 1936 (SA) s 48(3b).

Discretion to extend the limitation period in relation to personal injury claims

26.53 In New South Wales, Queensland, Tasmania, Victoria and Western Australia, the court has power to extend the limitation period for personal injury claims. The extent of the court’s power varies between the jurisdictions.

26.54 In New South Wales and Tasmania, the limitation period is the first to expire of either three years from the date of discoverability, or 12 years from the date of the act or omission said to have caused the loss.107 In each jurisdiction, the long-stop limitation period may be extended with the leave of the court,108 but the court has no power to extend the three-year limitation period. On an application to extend the long-stop limitation period, a court in New South Wales must consider all the circumstances of the case, including (but not limited to)‘the length of and reasons for the delay’, whether the plaintiff took any steps to seek expert advice, and any conduct of the defendant which may have led the plaintiff to delay commencing proceedings.109 A Tasmanian court may extend the long-stop period to a date three years after the date of discoverability, and in making any such order must consider ‘the justice of the case’, especially ‘the nature and extent of the plaintiff’s loss’, the ‘nature of the defendant’s conduct’, and whether a fair trial is still possible notwithstanding the time that has elapsed.110

107 Limitation Act 1969 (NSW) s 50C(1); Limitation Act 1974 (Tas) s 5A(3)(b). 108 Limitation Act 1969 (NSW) s 62A; Limitation Act 1974 (Tas) s 5A(5). 109 Limitation Act 1969 (NSW) s 62B. 110 Limitation Act 1974 (Tas) s 5A(5).

26.55 In Victoria, too, the limitation period is the first to expire of either three years from the date of discoverability, or 12 years from the date of the act or omission said to have caused the loss.111 Either limitation period may be extended by the court. Again, the legislation requires the court to consider all the circumstances of the case, including (but not limited to) the ‘length of and reasons for the delay’, the likely prejudice to the defendant, and the extent to which the defendant enabled the plaintiff to ascertain facts which were relevant to the cause of action.112

Page 1011

111 Limitation of Actions Act 1958 (Vic) s 27D(1). The limitation period is different where the person suffering the injury was under a disability at the time of the act or omission causing loss: the earlier of six years from the date of discoverability, and 12 years from the act or omission: s 27E. 112 Limitation of Actions Act 1958 (Vic) s 27L.

26.56

Page 23 of 63 Chapter 26 Finality of Litigation In Queensland, the court is able to extend the limitation period where a ‘material fact of a decisive character’ is not discovered until a date which is two years from the date on which the cause of action arose.113 The court must, however, be satisfied that ‘there is evidence to establish the right of action’.114 The court may only extend the limitation period until a date which is one year from the date on which the material fact was discovered, although it does not matter whether the limitation period had expired at the time of the application.115 Theoretically, therefore, the limitation period could be extended indefinitely, because there is no long-stop provision.

113 Limitation of Actions Act 1974 (Qld) s 31(2)(a). 114 Limitation of Actions Act 1974 (Qld) s 31(2)(b). 115 Limitation of Actions Act 1974 (Qld) s 31(2) and (3).

26.57 In Western Australia, the court may extend the three-year limitation period if, at the time that the limitation period expired, the plaintiff was not aware of the cause of the loss; or was not aware that it was attributable to a person; or,after reasonable inquiry, did not know the identity of the person responsible for the loss.116 Awareness in this context means actual awareness.117 On such an application, the court may extend the time up to three years from the date on which the plaintiff became aware, or ought reasonably to have become aware of those matters.118 There are obvious similarities to the date of discoverability in New South Wales, Tasmania and Victoria; the difference in Western Australia is that where a plaintiff is unaware of a fact relevant to their cause of action, they may apply to the court for an extension. Conversely, as discussed earlier,119 in New South Wales, Tasmania and Victoria, the fact that the cause of action remains undiscovered serves to postpone the date of accrual, without the need for an application to the court. As in all extension applications, the Western Australian Limitation Act requires the court to consider whether the delay in commencement ‘would unacceptably diminish the prospects of a fair trial of the action’, and whether it would ‘significantly prejudice the defendant’.120

116 Limitation Act 2005 (WA) s 39(3). See AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63 the application of the section, and the proper interpretation to be given to each aspect of the legislative test. 117 AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63 at [34]

as to

per McLure P (Newnes JA agreeing),

[197]–[198] per Buss JA; Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9–10

(per curiam). See generally

AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63 at [35]–[41] per McLure P (Newnes JA agreeing), contra [199]–[200] per Buss JA as to the level of certainty required to establish actual awareness. 118 Limitation Act 2005 (WA) s 39(4). 119 See 26.24–26.25 above. 120 Limitation Act 2005 (WA) s 44.

Discretion to extend the limitation period in relation to defamation claims

26.58 In all jurisdictions, the court must extend the limitation period for a defamation claim for a period up to three years, if it is ‘satisfied that it was not reasonable in the circumstances’ for the plaintiff to have commenced proceedings within the usual limitation period.121

Page 1012

Page 24 of 63 Chapter 26 Finality of Litigation

121 Limitation Act 1985 (ACT) s 21B(2); Limitation Act 1969 (NSW) s 56A(2); Limitation Act 1981 (NT) s 44A(2) (note the insubstantial difference in wording of that provision); Limitation of Actions Act 1974 (Qld) s 32A(2); Limitation of Actions Act 1936 (SA) s 37(2); Defamation Act 2005 (Tas) s 20A(2); Limitation of Actions Act 1958 (Vic) s 23B(2); Limitation Act 2005 (WA) s 40(2) and (3).

26.59 It has been emphasised that the test ‘does not direct attention to whether it was reasonable not to have commenced proceedings’, but instead ‘requires the court to be satisfied it was not reasonable to have commenced’ within the time limit.122 For example, it may be not reasonable to bring proceedings within one year where ‘the plaintiff is unaware of the publication’, or ‘is unable to identify the publisher or prove publication’, or ‘is engaged in non-litigious processes to vindicate his or her rights’.123 It has also been suggested that it would not be reasonable to bring proceedings where the plaintiff does not have sufficient evidence to make good their claim, such that it would be ‘speculative or irresponsible’ to commence proceedings.124

122 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at [55] per Beazley P (McColl JA and Sackville AJA agreeing at [95] and [98] respectively) (emphasis added); see also Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at [15]

per Keane JA, [30] per Holmes JA, [48]–[49], [58] per Chesterman JA.

123 Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52] per Simpson J. In relation to the use of non-litigious processes, it should be noted that the legislation provides for a dispute resolution process which is intended to avoid the use of litigation; this aspect of the litigation has been relied on as indicating that ‘In such a case, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings’: Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at [16]

per Keane JA. As to being unaware of the publication,see

Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at [61] (McColl JA and Sackville AJA agreeing at [95] and [98] respectively). 124 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at [17]

per Beazley P

per Keane JA.

26.60 The question whether it would be reasonable or not to commence proceedings is objective.125 The court must therefore consider whether it was not reasonable for the plaintiff to commence in the circumstances as they objectively existed; it is not sufficient for the plaintiff to establish a subjective belief that commencement was not reasonable.126 Once the court is satisfied that it would not have been reasonable to commence in time, the court must extend the limitation period; there is no discretion in this regard, although the court has discretion as to the length of the extension.127 The weight of judicial opinion is that the period of the extension ought not to extend beyond the period during which it was not reasonable to commence proceedings.128

125 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at [20]

per Keane JA, [65] per Chesterman JA (Holmes

JA agreeing with both at [30]); Barrett v TCN Channel Nine Pty Ltd [2016]NSWSC 1663 at [35] 126 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at [57] (McColl JA and Sackville AJA agreeing at [95] and [98] respectively).

per Davies J. per Beazley P

Page 25 of 63 Chapter 26 Finality of Litigation 127 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at [47]

per Chesterman JA; cf Casley v Australian

Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at [70]–[73] 128 Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [36]–[41]

per Hansen JA (Robson AJA agreeing). per Davies J.

Meeting the limitation deadline

26.61 In order to meet the limitation deadline prescribed for a particular cause of action, a plaintiff must commence proceedings in respect of that cause of action

Page 1013 before the expiry of the relevant period.129 The process for commencing proceedings was discussed in Chapter 4. The plaintiff must serve the originating process on the defendant after it has been filed; in some jurisdictions, the period permitted for service is as long as 12 months.130

129 Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397; [2009] NSWCA 120 [2009] NSWCA 6

; Windsurf Holdings Pty Ltd v Leonard

.

130 See Chapter 4, especially 4.56–4.121 as to the formalities for originating processes, including the period for which they are valid.

26.62 It should be noted that the bringing of an action within the limitation period does not stop the limitation period from running. If the action is aborted before judgment on the merits has been given, a fresh action could be brought only if there is still a balance left of the original limitation period.131 Suppose that an action founded on contract is brought four years after the accrual of the cause of action and is struck out for want of prosecution over two years later; because more than six years will have passed since the accrual of the cause of action, a fresh action will be barred, notwithstanding that two years of this period were taken up by litigation. In some procedural systems, litigation suspends the limitation period, so that the time taken in litigation would be added to the overall period.132 Such a rule could be supported by the argument that as the defendant knew that its right was being challenged and was engaged in defending it in the courts, there would be no loss of evidence and no injury to their sense of security. English law and Australian law have, however, rejected this arrangement in favour of an overall limit. The gain that this rule makes in certainty is at no cost to justice, because it does not deny plaintiffs an opportunity to prosecute their rights, it merely denies them a second bite at the cherry if the proceedings are dismissed after the expiry of the limitation period.

131 However, depending on the circumstances in which the first proceedings were terminated, the second proceedings may be an abuse of process: see 26.126–26.131 below. 132 For example, in the United States, the commencement of a suit stops the running of the limitation period: E J Richardson, ‘Eliminating the Limitations of Limitation Law’ (1997) 29 Arizona State Law Journal 1015 at 1041–2.

Relitigation estoppels and abuse of process — introduction The rules and principles for avoiding relitigation — introduction

Page 26 of 63 Chapter 26 Finality of Litigation

26.63 The principle of finality demands that a judgment disposing of a dispute should leave no room for further litigation on the same subject matter. It finds expression in the Latin maxim interest rei publicae ut finis sit litium: there is a general public interest in not allowing an issue to be litigated all over again.133 However, although this idea is straightforward, its practical manifestations are far from simple because Australian

Page 1014 law employs four different doctrines in order to implement it, and because these are neither sharply differentiated from each other nor clearly identified by a generally accepted terminology.134 The four doctrines are cause of action estoppel, issue estoppel, Anshun estoppel and the general discretion to prevent abuse of the court’s process.

133 Jackson v Goldsmith (1950) 81 CLR 446 at 466

per Fullagar J; Rogers v R (1994) 181 CLR 251 at 273

per

Deane and Gaudron JJ; Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615 ; [2000] 3 All ER 673 (HL) at 701 per Lord Hoffmann (Lord Browne-Wilkinson, Lord Hutton and Lord Millett agreeing); D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]

per Gleeson CJ, Gummow, Hayne and Heydon JJ.

134 In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, the majority observed that res judicata, issue estoppel and Anshun estoppel all ‘find their roots’in the policy that ‘the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings’.

26.64 Cause of action estoppel (sometimes referred to as res judicata, particularly in the English case law, and older Australian case law) provides that once a cause of action has been adjudicated, the parties to the proceedings are estopped from disputing the judgment disposing of the cause in any subsequent proceedings to which they are also parties. Cause of action estoppel is connected with the idea that a cause of action merges with the judgment given in the proceedings, so that no cause is left to pursue thereafter.135

135 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510 per Deane, Toohey and Gaudron JJ (Brennan J agreeing), at 512 per Dawson J; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [20],[22]

per French CJ, Bell, Gageler and Keane JJ.

26.65 The related doctrine of issue estoppel holds that parties to legal proceedings are bound by the court’s findings on discrete issues that were essential to the final resolution of the proceedings in which the finding was made. Accordingly,if in order to dispose of the dispute the court has determined particular essential issues of fact or law (such as whether an alleged event occurred or the meaning of a contractual term), the parties will not be allowed to advance arguments that are inconsistent with those findings in any later proceedings between themselves, even if such later proceedings are concerned with an entirely different cause of action.136

Page 27 of 63 Chapter 26 Finality of Litigation 136 Ramsay v Pigram (1968) 118 CLR 271 at 276 (2004) 220 CLR 363; [2004] HCA 34 at [40] CLR 507; [2015] HCA 28 at [22]

per Barwick CJ, quoted with approval in Kuligowski v Metrobus

(per curiam); Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256

per French CJ,Bell, Gageler and Keane JJ.

26.66 Cause of action estoppel and issue estoppel were distinguished by Dixon J in Blair v Curran in the following terms:137 … in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

137 Blair v Curran (1939) 62 CLR 464 at 532 Pty Ltd (1981) 147 CLR 589 at 597

per Dixon J, cited with approval in Port of Melbourne Authority v Anshun

per Gibbs CJ, Mason and Aickin JJ.

26.67 Beyond these two forms of estoppel, Australian courts have developed an extended doctrine, commonly known as Anshun estoppel (named after the leading case of Port of Melbourne Authority v Anshun Pty Ltd ).138 In short, Anshun estoppel

Page 1015 prevents parties from raising in subsequent proceedings an issue which could have been raised in earlier proceedings between themselves, and which was ‘so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’.139 Thus, Anshun estoppel can operate to prevent a party from litigating an issue which has never been adjudicated on previously. This principle is justified by the need to avoid the opponent and the court being troubled in respect of an issue which should have been raised and finally disposed of in earlier proceedings. To put the point another way, justice may require that a party should not only be prevented from relitigating matters that the court has decided, but also from litigating issues that the court never decided because these issues should have been placed before the court in the course of some earlier proceedings.

138 (1981) 147 CLR 589

.

139 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602

per Gibbs CJ, Mason and Aickin JJ.

26.68 These three branches of estoppel share a common justification. Parties who have invested money and effort in litigation and have obtained a final judgment are entitled to peace from further legal challenge regarding the matters that have (or should have) been adjudicated. The idea is expressed in the Latin maxim nemo debet bis vexari pro

Page 28 of 63 Chapter 26 Finality of Litigation una et eadem causa: a person should not be troubled twice for the same reason.140 It may be said that a party who challenges a court finding, made in earlier proceedings between them and another party to those proceedings, is effectively seeking to rob the latter of its hard-won victory by putting it to the trouble of litigating the matter again. There are also considerations of public policy involved here. The court should not be required to devote its scarce resources to matters that it has already considered and decided. Furthermore, relitigation of matters that have already been determined creates undesirable scope for conflicting decisions on identical matters and a potential for undermining public confidence in the adjudication process. Cause of action estoppel rests therefore on a dual justification, as Lord Blackburn explained:141 The object of the rule of res judicata is always put upon two grounds — the one public policy, that it is in the interest of the state that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.

The same objects motivate issue estoppel142 and Anshun estoppel.143

140 Jackson v Goldsmith (1950) 81 CLR 446 at 466 Brennan J. 141 Lockyer v Ferryman (1877) 2 App Cas 519 at 265

per Fullagar J; Rogers v R (1994) 181 CLR 251 at 265

at 530

per

, cited with approval in Rogers v R (1994) 181 CLR 251

per Brennan J.

142 Rogers v R (1994) 181 CLR 251 at 265

per Brennan J.

143 Shaw v Gadens Lawyers [2014] VSCA 74 at [60]–[62]

per Maxwell P (Tate JA and Garde AJA agreeing).

26.69 Cause of action estoppel, issue estoppel and Anshun estoppel are all party-relative. They apply only to attempts to relitigate the same cause or the same issues between the same parties, or their privies. (The concept of privity is discussed at 26.112–26.115 below; in short, a privy is someone who claims ‘under or through the

Page 1016 original party’).144 It does not impose restrictions on strangers, nor does it allow them to invoke court findings made in proceedings between others. In short, the three forms of estoppel may be asserted only by one party (or their privy) against another party(or their privy) to the same proceedings.145

144 Ramsay v Pigram (1968) 118 CLR 271 at 287 per Taylor J, citing Judge Pitt Taylor’s Treatise on the Law of Evidence, 12th ed, Sweet and Maxwell, London, 1931, p 1064. 145 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [23] per French CJ, Bell, Gageler and Keane JJ. Issue estoppel binds only parties and privies: Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21]–[22]

(per curiam).

26.70 A person is not bound by a decision in which they participated in a different capacity. Thus, a person who sues as personal representative of a deceased is not bound by findings made in earlier proceedings in which they sued in

Page 29 of 63 Chapter 26 Finality of Litigation their personal capacity.146 There is a perfectly good reason why in proceedings against strangers a party should be free to dispute findings made against them in earlier proceedings. The effort that a party invests in litigation is normally relative to the context of the dispute, which will include such factors as its value, its importance to the party, and what the party can afford at the time. A person litigating in a small or minor claims jurisdiction is unlikely to invest anything like the same resources that they would invest if the same issue arose in a high value claim in the Supreme Court. It would therefore be unjust to automatically hold a party bound by legal findings beyond the immediate context of the particular dispute in which the findings were made.

146 Leggott v Great Northern Railway Co (1876) 1 QBD 599 McDonald v South Australia [2011] FCA 297 at [36]

; Linsley v Petrie [1998] 1 VR 427

per Hayne JA;

per Besanko J.

26.71 However, while a rule which automatically enabled strangers to rely on findings made in proceedings to which they were not parties cannot be justified, it does not follow that it is never just to allow a stranger to rely on such findings. There will be situations where justice demands that even a stranger should be able to prevent a party from challenging a finding made against them. There may even be circumstances in which it would be justified to hold a stranger bound by court findings that were made in proceedings to which they were not strictly a party. Finally, there may be circumstances which do not fall strictly within any of the forms of relitigation estoppel, but which nevertheless entail repetitive litigation which is wasteful of the resources of the court and the opponent.

26.72 The fourth and final doctrine that Australian law uses to prevent repetitive or oppressive litigation is the general doctrine of abuse of process. It is used in the type of situation mentioned in the preceding paragraph; that is, where it would be unjust to permit litigation even though the case does not fall under cause of action estoppel, issue estoppel, or Anshun estoppel.147 The abuse of process jurisdiction is not confined by strict rules or categories but is left flexible in order to enable the court to reach the conclusion that justice and public policy dictate in the particular circumstances of the case.148

Page 1017

147 For discussion of other aspects of the jurisdiction to prevent abuse of process, see Chapter 14, 14.30–14.68. 148 The categories of abuse of process are not closed: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [9],[14]–[15]

per Gleeson CJ, Gummow, Hayne and Crennan JJ; Tomlinson v Ramsey Food

Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]

per French CJ, Bell, Gageler and Keane JJ.

26.73 The abuse of process jurisdiction enables the court to deal with a variety of situations. One important use of the jurisdiction is to prevent a party from challenging court findings in a subsequent dispute with a stranger to the proceedings in which the findings were made. In addition to sparing court resources, preventing a party from litigating with strangers issues that have already been decided against the party removes the risk of conflicting court decisions and helps to ensure that the administration of justice is not brought into disrepute. Further, there are

Page 30 of 63 Chapter 26 Finality of Litigation situations where it would amount to an abuse of process for a person to challenge findings in proceedings to which they were not a party. For instance, where a large number of claims raise identical issues, the court may direct that one of them should be tried as a test case and the rest should be stayed pending the outcome. It would amount to an abuse of process for a party to one of the stayed actions to attempt to litigate an issue that has already been determined in the test case.

26.74 It ought to be noted that there are some limited categories of judicial decision which, by their nature, operate in rem: that is, the judgment is effectively binding upon everyone. A discussion of the types of judicial decision which will be binding in rem is beyond the scope of this text; however, examples can be found in certain decisions made in matrimonial and probate decisions which, once made, cannot be challenged by any person.149

149 See generally Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, Ch 10 for a detailed treatment of this topic.

26.75 Finally, a brief point of clarification on terminology and taxonomy is necessary here.150 In the English edition of this text, the term ‘res judicata’ is used to refer collectively to cause of action estoppel and issue estoppel. This is also the approach of the leading text by Spencer Bower and Handley.151 Conversely, in Australia, the term ‘res judicata’, particularly in older case law, is more commonly used as another term for ‘cause of action estoppel’.152 ‘Res judicata’ does not include issue estoppel.153

150 As to terminology, see the discussion at Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, [1.04]. 151 See Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, [1.05]; see also Thoday v Thoday [1964] P 181 (CA) at 197–8 per Diplock LJ. 152 See, for example, Jackson v Goldsmith (1950) 81 CLR 446 at 466 Anshun Pty Ltd (1981) 147 CLR 589 at 597

per Fullagar J; Port of Melbourne Authority v

per Gibbs CJ, Mason and Aickin JJ.

153 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 at 531

per Burchett J.

26.76 Further, the English edition of this text refers to only one further doctrine concerning relitigation: the general doctrine of abuse of process. The leading judgment in Henderson v Henderson is, in English case law, treated as an ‘extended doctrine [of res judicata] based on abuse of process’.154 Conversely, in Australia, these are better thought of as two doctrines: Anshun estoppel, which draws from, but is not identical to, the English judgment in Henderson v Henderson, and a separate doctrine of abuse of process.

Page 1018

Page 31 of 63 Chapter 26 Finality of Litigation 154 Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, [26.01]. The words in parentheses appear in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Butterworths, London, 1996, [443].

26.77 This text will refer to cause of action estoppel, issue estoppel and Anshun estoppel collectively as the ‘relitigation estoppels’. However, there is a great disparity of opinion in the authorities concerning which of these operate as true estoppels in the usual sense of the word.155 For example, a majority of the High Court recently expressed the view that merger (which they also described as ‘“res judicata” in the strict sense’) was a consequence of the exercise of judicial power; cause of action estoppel, issue estoppel and Anshun estoppel were of a different nature: they operate as estoppels.156 Conversely, in the leading case of Jackson v Goldsmith (decided prior to Anshun), Fullagar J expressed the view that cause of action estoppel was a rule of public policy, and that only issue estoppel was a true estoppel. In Rogers v R, Deane and Gaudron JJ reached the opposite conclusion: issue estoppel was not a true estoppel, but rather a manifestation of policy considerations.157 And finally, the majority in CSR v Cigna observed that the judgments in Anshun ‘do not proceed by reference to the ordinary principles of estoppel’.158

155 On this diversity, see J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Sydney, 2014, [17-020]. 156 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [20]–[22] Bell, Gageler and Keane JJ. 157 Rogers v R (1994) 181 CLR 251 at 274

per French CJ,

per Deane and Gaudron JJ.

158 CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 394 Gummow and Kirby JJ.

per Dawson, Toohey, Gaudron, McHugh,

26.78 It is unnecessary to enter into this debate. For present purposes, it is sufficient to note that the terms ‘cause of action estoppel’ (sometimes referred to as res judicata), ‘issue estoppel’ and ‘Anshun estoppel’are used without controversy. However, in considering case law and texts on point, it may be important to bear in mind that sometimes these principles are described and explained in terms which characterise these doctrines as rules of estoppel, and sometimes in terms which emphasise their character as rules of public policy.

26.79 Inconsistency and lack of clarity in terminology is a well-recognised problem in this area of law. In addition to the points already raised, some specific areas of terminological inconsistency will be identified as they become relevant.

Judgments as ‘evidence’ of facts

26.80 As a general rule at common law, judgments in other proceedings are inadmissible as evidence in other proceedings of the facts established in them. The classical authority for this proposition is Hollington v F Hewthorn& Co Ltd.159 In that case, the plaintiff in a civil action wished to rely on the defendant’s earlier criminal conviction in

Page 32 of 63 Chapter 26 Finality of Litigation order to establish that the defendant had driven negligently. The principle applies equally where the earlier judgment was given in civil proceedings.160

Page 1019

159 Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35

. This rule has not, however, been accepted in Western

Australia: Mickelberg v The Director of the Perth Mint [1986] WAR 365 WASCA 37 at [144]–[146]

; Roberts v Western Australia [2005]

per McLure J.

160 Burden v Ainsworth (2004) 59 NSWLR 506; [2004] NSWCA 3 at [19]–[20] agreeing); Liao v New South Wales [2014] NSWCA 71 at [168]

per Ipp JA (Sheller and Giles JJA

per Barrett JA (Beazley P agreeing).

26.81 There are some legislative exceptions to the general position; principal amongst those are the provisions of the Uniform Evidence Acts. The Uniform Evidence Acts confirm the common law rule, but go on to create some limited exceptions. The legislation provides that:161 Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

161 Evidence Act 1995 (Cth) s 91(1); Evidence Act 2011 (ACT) s 91(1); Evidence Act 1995 (NSW) s 91(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 91(1); Evidence Act 2001 (Tas) s 91(1); Evidence Act 2008 (Vic) s 91(1).

26.82 However, such evidence may be admissible in two circumstances.162 First, grants of probate, letters of administration or similar documents may be admitted to prove the fact or date of a person’s death, or the due execution of a testamentary document. Secondly, evidence that a party, or a person through or under whom a party claims, has been convicted of an offence is admissible in civil proceedings.163 There are also legislative provisions in Queensland and South Australia enabling the admission of criminal convictions in civil proceedings in certain circumstances.164

162 Evidence Act 1995 (Cth) s 92; Evidence Act 2011 (ACT) s 92; Evidence Act 1995 (NSW) s 92; Evidence (National Uniform Legislation) Act 2011 (NT) s 92; Evidence Act 2001 (Tas) s 92; Evidence Act 2008 (Vic) s 92. 163 This exception does not apply if the conviction is subject to a review or appeal which has not yet been finally determined, or if the conviction has been quashed or set aside, or if a pardon has been granted. 164 Evidence Act 1977 (Qld) ss 78–82; Evidence Act 1929(SA) s 34A.

Identifying the right ground for objecting to raising matters decided in previous proceedings

Page 33 of 63 Chapter 26 Finality of Litigation

26.83 The fact that there are several rules and principles serving the interest in finality of litigation should cause no great difficulty in practice provided some simple rules of thumb are kept in mind. The surest way to stop a plaintiff in their tracks is to establish cause of action estoppel. Once established, the court must throw out the claim and has no discretion in the matter. If identity of cause cannot be relied upon, the next best way is to rely on issue estoppel. Once it is established that an identical issue has been determined between the same parties in previous proceedings, the court must refuse to listen to an argument that is inconsistent with its earlier determination. Once it has been established that there exists a cause of action estoppel, or an issue estoppel, the court has no discretion to waive its application.165 Only when the circumstances do not allow for the application of either of these doctrines will it be necessary to rely on Anshun estoppel. A party relying on this ground has to do more work than is required to establish the other forms of relitigation estoppel. They must convince the court that it is just to deny the opponent the opportunity to raise a matter that was not determined before. Further, the application of the doctrine is discretionary, and requires a consideration of the reasonableness of the party’s conduct in failing to raise the issue in the earlier proceedings, which in turn entails consideration of all the relevant circumstances of the earlier proceedings. Finally, a party may rely on

Page 1020 the general doctrine of abuse of process. However, the court will stay proceedings as an abuse of process only in rare circumstances, and the party who asserts that their opponent is abusing the processes of the court bears a heavy onus of making good that assertion.166

165 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 at 538 166 Williams v Spautz (1992) 174 CLR 509 at 529 (1993) 177 CLR 378 at 392 118; [2010] HCA 28 at [24]

per Burchett J.

per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner

per Mason CJ, Deane and Dawson JJ; Spencer v Commonwealth (2010) 241 CLR per French CJ and Gummow J, [60] per Hayne, Crennan,Kiefel and Bell JJ.

26.84 The relitigation estoppels can arise only from a ‘final decision’ by a ‘judicial tribunal of competent jurisdiction’.167 In Administration of Papua and New Guinea v Daera Guba,168 Gibbs J explained that this requirement does not entail a close consideration of the characteristics of the previous tribunal, but instead depends to a greater degree on the nature of the previous decision: The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative. … The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc …

167 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

at 933

per Lord Guest, cited with approval

in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [21] Gageler and Keane JJ.

per Gibbs J; see also per French CJ, Bell,

Page 34 of 63 Chapter 26 Finality of Litigation 168 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 per Gibbs J (citations omitted); see also at 402–3 per Barwick CJ (McTiernan and Menzies JJ agreeing); Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [22]

(per curiam).

26.85 A decision on the issue of jurisdiction may itself give rise to issue estoppel.169 Lack of jurisdiction is hardly ever going to present a problem in the case of decisions given by the courts in civil proceedings. But problems may arise in the field of public law where bodies other than the courts have jurisdiction to determine a variety of public law matters.170 The application of the relitigation estoppels and abuse of process to foreign judgments is discussed below.

169 Desert Sun Loan Corp v Hill [1996] 2 All ER 847 (CA). 170 Hatchett v Bowater Tutt Industries Pty Ltd (No 1) (1990) 26 FCR 561 at 567–8 of New South Wales (2003)132 FCR 147; [2003] FCAFC 180 at [56]

per von Doussa J; Miller v University

per Ryan and Gyles JJ.

Waiver

26.86 Neither cause of action estoppel nor issue estoppel may be waived by the parties; this principle is supported by the policy of maintaining the incontrovertibility of decisions which underpins the estoppel.171

Page 1021

171 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 511 per Deane, Toohey and Gaudron JJ (Brennan J agreeing), 512 per Dawson J; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 at 538 ACSR 244

per Burchett J; Cassegrain v Gerard Cassegrain and Co Pty Ltd (2013) 305 ALR 648; 281 FLR 409; 97 ; [2013] NSWCA 454 at [94]–[96]

per Beazley P (Macfarlan JA agreeing).

Relitigation estoppels arise only from adversarial proceedings

26.87 The relitigation estoppels have little part to play in non-adversarial proceedings. For example, where a trustee seeks the advice of the court, no estoppel is created; such a decision ‘does not, of itself, determine any rights’.172

172 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112; [2006] NSWCA 160 at [41] per Beazley and Giles JJA; contra at [64] per Hodgson JA; see also Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 at [69]

per Palmer J.

Page 35 of 63 Chapter 26 Finality of Litigation

Cause of action estoppel

26.88 Cause of action estoppel was described in the following terms by Fullagar J in Jackson v Goldsmith:173 … where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’.

To establish a cause of action estoppel, it must be shown that (1) the same cause of action has already been litigated; (2) that a final judgment was rendered in the earlier proceedings; and (3) that the same parties were involved in the original proceedings and the case at bar.174 There is an important caveat to the final requirement: a cause of action will also bind ‘privies’ of the parties.175

173 Jackson v Goldsmith (1950) 81 CLR 446 at 466 . His Honour was in dissent in that case, but his statement of principle has subsequently been endorsed by a majority of the High Court: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597

per Gibbs CJ, Mason and Aickin JJ.

174 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Industries of Australia Pty Ltd (1993) 43 FCR 510 at 512

at 909–10

; Effem Foods Pty Ltd v Trawl

per Northrop and Lee JJ.

175 The concept of privity is discussed at 26.112–26.115 below.

26.89 As the name suggests, cause of action estoppel is a limited doctrine: it arises only when the cause of action in later proceedings is identical to that prosecuted in earlier proceedings.176 An identical cause of action cannot be advanced again even in order to claim a new relief which could not have been claimed in the original proceedings. As Dawson J stated, ‘Once a cause of action has merged in a judgment it no longer exists to found another action.’177 So, for example, in Anshun (discussed in greater detail below), there was no cause of action estoppel in circumstances where one joint tortfeasor had made an unsuccessful contribution claim against the other in the first proceedings, and

Page 1022 then commenced fresh proceedings against the other tortfeasor, seeking to rely on a contractual indemnity to claim the same quantum of damages.178

176 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 Taxation (1988) 164 CLR 502 at 510–11 per Brennan J.

; Chamberlain v Deputy Commissioner of

per Deane, Toohey and Gaudron JJ, 512 per Dawson J; see also at 504

177 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 512 178 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597

per Dawson J. per Gibbs CJ, Mason and Aickin JJ.

Page 36 of 63 Chapter 26 Finality of Litigation

26.90 Because this form of estoppel depends critically on the identity of the cause of action in the two proceedings, it is important to be clear about the meaning of the term ‘cause of action’. In Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd, Gummow J observed that the term ‘cause of action’ may be used variously to mean:179 (i)

the series of facts which the plaintiff must allege and prove to substantiate a right to judgment;

(ii)

the legal right which has been infringed; and

(iii) the substance of the action as distinct from its form.

His Honour considered that for the purpose of the application of cause of action estoppel, the court ought to consider the ‘substance of the two proceedings’, which would include asking ‘whether the same sort of evidence would prove the plaintiff’s case in the two actions’.180 Thus, the question whether the cause of action is the same is a matter of substance and not of form.181 So, for example, a claim for negligently inflicted economic loss was precluded by cause of action estoppel, because there had been an earlier statutory claim for misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth),182 which had been based on the same representations.183 In that case, it was relevant that ‘the same evidence would be led to prove the case’ in both proceedings, that ‘one factual matrix [had] generated the controversy which is given legal form in the two pleadings’, and that ‘The gist of the recovery sought … [was] the same’.184 Similarly, a builder’s claim for restitution or quantum meruit was precluded by cause of action estoppel, in circumstances where the builder had failed in earlier proceedings in which he sought to recover payment for the same work under a contract.185

179 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 . As to the possibility that ‘cause of action’ may have various meanings, see also Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610–13 Wilson J.

per Brennan J; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245

per

180 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 . The second quoted passage was taken from the judgment of Sir William Brett MR in Brunsden v Humphrey (1884) 14 QBD 141 at 146 . 181 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418,422 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457; [2005] NSWCA 438 at [25] (Mason P and Latham J agreeing).

; see also

per Handley JA

182 Section 52 of the Trade Practices Act 1974 (Cth) has now been replaced by s 18 of the Australian Consumer Law. 183 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418,422 184 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 422

. .

185 Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457; [2005] NSWCA 438 at [25]–[33] (Mason P and Latham J agreeing).

per Handley JA

26.91 The bar to advancing an identical cause of action is absolute.186 Neither the discovery of new evidence that could not have been known before, nor a change in the

Page 37 of 63 Chapter 26 Finality of Litigation

Page 1023 law since the first decision, can justify reopening an adjudicated cause of action. The only way of reviving the cause of action is by having the original judgment set aside on grounds of fraud.187

186 See, for example, Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 504–5 187 Arnold v National Westminster Bank plc [1991] 2 AC 93 Harrison v Schipp [2002] NSWCA 78 at [5] Chapter 23, 23.41–23.43.

at 104

; [1991] 3 All ER 41 (HL)

per Brennan J. per Lord Keith;

per Handley JA. As to setting aside judgments obtained by fraud, see

26.92 Although some case law seems to treat cause of action estoppel as synonymous with merger,188 the two concepts are distinct (although related).189 A cause of action is said to merge in the judgment so that it does not survive the entering of a judgment in the proceedings in which it was advanced.190 The relationship between cause of action estoppel and merger was explained by Diplock LJ in the leading case of Thoday v Thoday in the following terms:191 … ‘cause of action estoppel,’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim‘Nemo debet bis vexari pro una et eadem causa.’

In other words, merger arises only where the plaintiff succeeds in the first set of proceedings; the cause of action has then merged in the judgment, and a plaintiff cannot seek further relief in respect of the same cause of action.192 It may therefore be said that merger prevents ‘reassertion’, whereas cause of action estoppel (like issue estoppel) also prevents ‘contradiction’.193

Page 1024

188 See, for example, Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [20],[22] per French CJ, Bell, Gageler and Keane JJ. This passage of the judgment illustrates some of the issues of taxonomy and terminology which are referred to in this chapter; at [20], the majority refer to merger as ‘equating to “res judicata” in the strict sense’.At [21], they make the point that ‘Estoppel in relation to judicial determinations is of a different nature’. Nevertheless, at [22], they observe that cause of action estoppel ‘is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment’. Thus, the boundaries between res judicata, merger, and cause of action estoppel are left unclear. 189 For an excellent explanation of the distinction between res judicata estoppel (that is, cause of action estoppel or issue estoppel) and merger, see Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis,London, 2009, [19.01] and Ch 19 generally; see also [1.04]. 190 Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J (although note that the concept of merger seems to have been equated with cause of action estoppel); Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ; see also Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508

per Deane, Toohey and Gaudron JJ.

Page 38 of 63 Chapter 26 Finality of Litigation 191 Thoday v Thoday [1964] P 181

at 197–8

; [1964] 1 All ER 341 (CA) at 352

.

192 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 409

.

193 This distinction is drawn by Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, [19.01].

Issue estoppel The general rule

26.93 Issue estoppel arises from the determination of discrete issues in the course of civil proceedings. A party is not entitled to advance an argument of fact or of law which conflicts with a court determination of the same issue in earlier proceedings between the same parties or their privies.194 Issue estoppel will arise where the following requirements have been satisfied:195 (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

194 Ramsay v Pigram (1968) 118 CLR 271 at 276 per Barwick CJ. This rule is of more recent development than cause of action estoppel. The first use of the term ‘issue estoppel’ is attributed to the judgment of Higgins J in Hoystead v Commissioner of Taxation (1921) 29 CLR 537 at 561 466

per Fullagar J; Mills v Cooper [1967] 2 QB 459

; see, for example, Jackson v Goldsmith (1950) 81 CLR 446 at at 468

see Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 All ER 536 (HL). 195 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

per Diplock LJ. For a discussion of its history, at 913–15

at 935

approval in Kuligowski v Metrobus (2004)220 CLR 363; [2004] HCA 34 at [21]

per Lord Reid; [1966] 2

per Lord Guest, quoted with (per curiam).

26.94 A judgment can give rise to an estoppel even if it was given after the start of the proceedings in which the estoppel is raised.196 The rule was explained by Barwick CJ in the following terms in Ramsay v Pigram :197 … an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

Page 39 of 63 Chapter 26 Finality of Litigation 196 Isaacs v Ocean Accident and Guarantee Corporation Ltd (1958) SR (NSW) 69 at 84 Partners v Hillman [1961] 2 QB 266 Industries Ltd (1987) 18 FCR 342 197 (1968) 118 CLR 271 at 276 [2004] HCA 34 at [40]

; [1961] 2 All ER 891 (CA)

per Owen J; Morrison Rose &

; see generally Taylor v Ansett Transport

. per Barwick CJ, quoted with approval in Kuligowski v Metrobus (2004) 220 CLR 363;

(per curiam). See, to similar effect, Blair v Curran (1939) 62 CLR 464 at 531

per Dixon J,

cited with approval by majority in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 Gibbs CJ,Mason and Aickin JJ.

per

26.95 Issue estoppel can arise only with respect to issues that a court has actually addressed and determined, and only if the issues were essential to the disposition of the cause in question.198 In other words, the estoppel applies only to ‘ultimate facts’, and not to ‘evidentiary facts’.199 The court in the second proceedings may look at any material to determine what was decided in the first, although unsurprisingly,

Page 1025 the reasons for judgment will be particularly relevant.200 Two related reasons justify excluding collateral findings (that is, findings that would not have made a difference to the outcome of the proceedings) from the application of the issue estoppel rule. First, it would be unfair to hold parties bound by decisions on matters that they were not obliged to litigate and which, therefore, they may have chosen not to prosecute thoroughly. Secondly, if issue estoppel extended to inessential issues, parties would feel obliged to invest time and effort in pursuing unimportant issues, which could result in distracting attention from the crucial issues, in delaying the disposition of the dispute and in increasing costs.

198 Blair v Curran (1939) 62 CLR 464 at 531–2 199 Blair v Curran (1939) 62 CLR 464 at 532 Fullagar J. 200 Jackson v Goldsmith (1950) 81 CLR 446 at 467

per Dixon J. per Dixon J; Jackson v Goldsmith (1950) 81 CLR 446 at 467

per

per Fullagar J.

26.96 Issue estoppel arises only in relation to final judgments, and not decisions of an interlocutory nature.201 The fact that a judgment may be overturned on appeal does not affect its finality, provided that it is a conclusive judgment on the merits of the cause of action.202 ‘The defining feature of a final decision [is] complete effectiveness unless and until it can be amended’, irrespective of the character of the decision-making body, or the process by which the decision was reached.203

201 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [25]

(per curiam).

202 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [25]

(per curiam).

203 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [32]

(per curiam).

Page 40 of 63 Chapter 26 Finality of Litigation

Circumstances in which earlier findings may be challenged

26.97 Unlike cause of action estoppel, which holds that once adjudicated a cause of action cannot be revived, issue estoppel may be overcome in certain situations. In particular, issue estoppel does not apply to issues of fact which could change over time.204 This follows from the requirement that the issue be identical between the first and second proceeding.

204 Mills v Cooper [1967] 2 QB 459

at 467

per Lord Parker CJ, 470 per Diplock LJ; see also Hamersley Iron Pty

Ltd v The National Competition Council (2008) 247 ALR 385; [2008] FCA 598 at [114]–[117]

per Weinberg J.

26.98 In England, it has been held that issue estoppel might not arise where special circumstances exist.205 The leading case is Arnold v National Westminster Bank plc. First, the estoppel might not operate where the first proceedings were terminated by a default judgment.206 Secondly, the estoppel will not operate where fresh evidence

Page 1026 has come to light subsequent to the judgment in which the findings were made, provided that it could not, with reasonable diligence, have been obtained at the earlier proceedings and that it clearly and reliably disproves the earlier finding.207 Finally, issue estoppel may be overcome where there has been a material change in the law since the findings were made.208

205 Arnold v National Westminster Bank plc [1991] 2 AC 93 at 107 ; [1991] 3 All ER 41 (HL) per Lord Keith (Lord Griffiths, Lord Oliver, Lord Jauncey and Lord Lowry agreeing). Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [25.90], argues that the exception ought also to be applicable in a further category of case: where it would be disproportionate to hold the party to the result in the first proceeding, for example because the subject matter of the second proceeding is more substantial. As to this point, see also Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

at 917

per Lord Reid. See also Charafeddine v Morgan [2014] NSWCA 74

at [24] per Beazley P (Macfarlan and Leeming JJA agreeing) for a description of the special circumstances which were recognised in Arnold. 206 Arnold v National Westminster Bank plc [1991] 2 AC 93 at 107 Griffiths, Lord Oliver, Lord Jauncey and Lord Lowry agreeing).

; [1991] 3 All ER 41 (HL)

207 McIlkenny v Chief Constable of West Midlands Police Force [1980] QB 283 National Westminster Bank plc [1991] 2 AC 93

at 108–9

208 Arnold v National Westminster Bank plc [1991] 2 AC 93

; [1980] 2 All ER 227 (CA)

; [1991] 3 All ER 41 (HL) at 109

,110–11

per Lord Keith (Lord

; Arnold v

.

; [1991] 3 All ER 41(HL)

.

26.99 Arnold has frequently been discussed by Australian courts, but it has never been applied, and courts have left open the question whether it represents the law in Australia,209 although it has been doubted by at least one member of the High Court.210

Page 41 of 63 Chapter 26 Finality of Litigation

209 See, for example, Charafeddine v Morgan [2014] NSWCA 74 at [22]–[27]

per Beazley P (Macfarlan and Leeming

JJA agreeing); Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 at [34] (per curiam); but cf Cassegrain v Gerard Cassegrain & Co Pty Ltd (2013) 305 ALR 648; 281 FLR 409; 97 ACSR 244; [2013] NSWCA 454 at [96]–[98]

per Beazley P (Macfarlan JA agreeing).

210 In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258 uncertain foundation’.

, Brennan J opined that the judgment ‘rests on an

Anshun estoppel

26.100 As a matter of general policy preference, Australian civil procedure encourages parties and the court to dispose of disputes in the most comprehensive way practicable. Rules enabling the joinder of causes of action, for example, reflect a preference for resolving all aspects of a dispute in a single set of proceedings. This avoids multiplicity of proceedings, and the consequent waste of the resources of the parties and the court.

26.101 The doctrine of Anshun estoppel underpins this general policy by preventing litigants from advancing causes of action or arguments that they could have advanced in earlier proceedings. The doctrine may be traced to the nineteenth-century judgment in Henderson v Henderson.211 The leading modern Australian authority is Port of Melbourne Authority v Anshun Pty Ltd (Anshun) ;212 following that judgment, the Australian doctrine is referred to as Anshun estoppel (although there is dispute about whether it operates as a true estoppel).213

211 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 212 (1981) 147 CLR 589

.

.

213 In CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 394 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, a majority of the High Court held that Anshun estoppel was not a true estoppel; see also J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Sydney, 2014, [17-020]. On the other hand, it was described as a ‘true estoppel’, rather than a form of res judicata, in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [21]–[22] per French CJ, Bell, Gageler and Keane JJ.

The general Henderson v Henderson principle

26.102 In Henderson v Henderson, Sir James Wigram VC set out what is often referred to as the ‘extended’ principle, socalled because it served to extend the traditional

Page 1027 categories of cause of action estoppel (or res judicata) and issue estoppel.214 The Vice-Chancellor stated:215 I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their

Page 42 of 63 Chapter 26 Finality of Litigation whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

Thus, a party may be prevented from raising a cause of action or an issue even though it has never been adjudicated, provided that the party could have advanced that cause or raised that issue in previous proceedings. Henderson v Henderson continues to be cited in Australian judgments for this general proposition. However, as will be seen, in Anshun, the High Court of Australia rejected some aspects of the English jurisprudence which had developed from the Henderson judgment.

214 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22] Gageler and Keane JJ. 215 Henderson v Henderson (1843) 3 Hare 100 at 114–15; 67 ER 313 at 319

per French CJ, Bell,

.

The Australian development of Anshun estoppel

26.103 Anshun had hired a crane from the Port of Melbourne Authority. Under the terms of the contract for hire, Anshun agreed to indemnify the Authority in respect of any personal injury claims relating to the use of the crane. A workman, Soterales,was injured by the crane. He sued both Anshun and the Authority. In those proceedings (the Sotorales proceedings), the Authority and Anshun each claimed contribution from the other. However, the Authority did not rely on the indemnity to which it was entitled. It was ultimately ordered that the Authority pay 90 per cent of the plaintiff ’s damages and costs, and Anshun pay 10 per cent. Later, the Authority commenced proceedings against Anshun, seeking to rely on the indemnity to recover the moneys it had paid to Soterales. Anshun’s defence was that the Authority was estopped from claiming its indemnity, because the Authority ought to have made its claim against Anshun in the Sotorales proceedings. Both the first instance judge and the Full Court found in favour of Anshun, relying on the principle in Henderson v Henderson.216

216 See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 592–5 JJ for the facts and procedural history.

per Gibbs CJ, Mason and Aickin

26.104 The indemnity would have been a complete defence to Anshun’s claim for contribution in the Sotorales proceedings, although it would not have applied if the

Page 1028 injury had been caused entirely by the Authority.217 But a majority of the High Court observed that ‘there was nothing to prevent determination of the indemnity issue after the determination of the plaintiff ’s claim’; in fact, had the indemnity issue been raised, it would have avoided the question of apportionment.218 The majority observed that, in making its indemnity claim in the current proceedings, the Authority was seeking a judgment ‘which would contradict the judgment which had been entered in the Sotorales action’.219

Page 43 of 63 Chapter 26 Finality of Litigation

217 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 596

per Gibbs CJ, Mason and Aickin JJ.

218 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 596

per Gibbs CJ, Mason and Aickin JJ.

219 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 596

per Gibbs CJ, Mason and Aickin JJ.

26.105 There was no cause of action estoppel because the indemnity had not been litigated in the Sotorales proceedings; therefore, the indemnity cause of action had not merged into any judgment.220 Further, there was no issue estoppel: although the indemnity would have been a defence to the contribution claim, it had not been ‘a necessary step to the decision’ for the court in the Sotorales proceedings to find that there was no entitlement to an indemnity.221 The sole issue was, therefore, whether the second proceedings were precluded by the ‘extended principle’ in Henderson v Henderson.222

220 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597

per Gibbs CJ, Mason and Aickin JJ.

221 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597–8 222 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598

per Gibbs CJ, Mason and Aickin JJ. per Gibbs CJ, Mason and Aickin JJ.

26.106 The majority accepted that the Henderson v Henderson principle was good law in Australia.223 But they rejected the subsequent English jurisprudence in two important respects. First, the majority considered that the principle had been too widely expressed by Lord Kilbrandon in Yat Tung Investment Co Ltd v Dan Heng Bank Ltd when his Lordship said that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.224 According to the majority, this statement was ‘not supported by authority’.225 Secondly, they observed that other English authority had referred to the concept of abuse of process to describe the circumstances in which relitigation of facts and issues would be prevented. The majority rejected this approach, stating that ‘the abuse of process test is not one of great utility’.226

Page 1029

223 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 224 Yat Tung Investment Co Ltd v Dan Heng Bank Ltd [1975] AC 581 Anshun Pty Ltd (1981) 147 CLR 589 at 601–2

per Gibbs CJ, Mason and Aickin JJ. at 590

; Port of Melbourne Authority v

per Gibbs CJ, Mason and Aickin JJ.

225 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602

per Gibbs CJ, Mason and Aickin JJ.

226 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602

per Gibbs CJ, Mason and Aickin JJ.

26.107

Page 44 of 63 Chapter 26 Finality of Litigation Instead, the majority formulated the following test, which is now the starting point for the application of Anshun estoppel in Australia:227 In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff ’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. …

The test propounded by the majority was therefore one which focused on the reasonableness of the party’s conduct, taking into account matters such as the forensic judgment of the party in the original proceedings, and expense. The majority then turned to consider the issue of conflicting judgments. They observed that:228 It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. …

They defined ‘conflicting judgments’ as being those:229 … which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.

In the case at bar, the majority considered that if the Authority were to succeed in the present proceedings, it would entail a judgment which was inconsistent with that given in the Sotorales proceedings — although the causes of action would be different. Accordingly, the Authority was estopped from bringing its claim: the indemnity issue was ‘so closely connected with the subject matter’ of the Sotorales proceedings that ‘it was to be expected’ that it would be raised there.230

227 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602–3 228 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603

per Gibbs CJ, Mason and Aickin JJ. per Gibbs CJ, Mason and Aickin JJ; see

also Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [60] Keane and Nettle JJ. 229 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603–4 230 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 604

per French CJ, Kiefel,

per Gibbs CJ, Mason and Aickin JJ. per Gibbs CJ, Mason and Aickin JJ.

26.108 The court also observed that although the Henderson v Henderson principle was applicable in circumstances of cause of action and issue estoppel, it should be applied to cases of issue estoppel ‘with caution’.231 This is unsurprising; whilst a party

Page 1030 may be expected to bring all causes of action and defences in the proceeding in which they arise, issue estoppel operates more broadly, precluding parties from relitigating necessary questions of fact or law. The potential for unfairness is greater when extending issue estoppel to prevent relitigation of questions of fact or law which ought to have been brought. For example, a party might abstain from raising a particular question of fact or law because it

Page 45 of 63 Chapter 26 Finality of Litigation considers that there is another way in which it can establish its cause of action, and it wishes to minimise time and expense by focusing on what it considers to be the most prospective aspects of its case.

231 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598–9

per Gibbs CJ, Mason and Aickin JJ.

Subsequent development of Anshun estoppel

26.109 Unlike cause of action estoppel and issue estoppel, Anshun estoppel does not depend on any similarities between the issues raised in the first and second proceedings.232 Rather, the question for the court is whether it was unreasonable not to raise a particular matter in earlier proceedings.233 A party will only be precluded from raising a matter in ‘the clearest of cases’ because of the possibility for the estoppel to operate unjustly.234 Although the ratio in Anshun was confined to defences, the estoppel may also preclude reliance on a claim.235

232 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [56] Keane and Nettle JJ.

per French CJ, Kiefel,

233 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [56] Keane and Nettle JJ.

per French CJ, Kiefel,

234 Solak v Registrar of Titles (2011) 33 VR 40; [2011] VSCA 279 at [73] agreeing). 235 See, for example, Shaw v Gadens Lawyers [2014] VSCA 74 at [59] agreeing).

per Warren CJ (Neave JA and Hargrave AJA

per Maxwell P (Tate JA and Garde AJA

26.110 As set out above, the majority in Anshun recognised that there are a variety of good reasons why a party might not litigate an issue in earlier proceedings. For example, in Timbercorp Finance Pty Ltd (in liq) v Collins, the defendants had been group members in an earlier group proceeding; a majority of the High Court found that it was not unreasonable for those defendants not to have raised, in that group proceeding, arguments which were personal to them, particularly in circumstances where there would have been a risk of adverse costs had the individual claim been raised in the group proceeding.236 The question whether it was unreasonable not to raise an issue in earlier proceedings will be contingent on the circumstances of the case.237 But the risk of inconsistent judgments will be the most weighty consideration.238 In order for it to have been unreasonable not to have litigated a cause of action in earlier proceedings, it must have been possible for the party to have done so.239

Page 1031

236 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [58],[64],[66] Kiefel, Keane and Nettle JJ. 237 Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 at [23]

per French CJ,

per Kenny JA (Ormiston and Phillips JJA agreeing).

Page 46 of 63 Chapter 26 Finality of Litigation 238 Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 at [25]

per Kenny JA (Ormiston and Phillips JJA agreeing); Solak v

Registrar of Titles (2011) 33 VR 40; [2011] VSCA 279 at [74] agreeing). 239 Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 at [23]

per Warren CJ (Neave JA and Hargrave AJA

per Kenny JA (Ormiston and Phillips JJA agreeing).

26.111 Where the party seeking to rely on Anshun estoppel was not party to the first proceedings, it has been suggested that the court should take particular care before enforcing the estoppel. This is because enforcing an Anshun estoppel in these circumstances would have the effect of requiring the parties to the original proceedings to join additional parties, when there may be good reasons for not doing so. In particular, it has been said that:240 … where a plaintiff may have alternative remedies against different parties, to suggest that a plaintiff should generally sue all of them, barring exceptional circumstances, would be to encourage complex and lengthy litigation, and promote the incurring of costs where there is no certainty that a Bullock or Sanderson order would be obtained. … plaintiffs should be permitted reasonable latitude in deciding whether to sue just one defendant, or to join a number of defendants in alternative claims.

240 Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286 at [50]

per Hodgson JA (Mason P and

Bryson AJA agreeing); Solak v Registrar of Titles (2011) 33 VR 40; [2011] VSCA 279 at [67]–[69],[81] CJ (Neave JA and Hargrave AJA agreeing).

per Warren

General rules concerning the relitigation estoppels Judgments bind parties and their privies

26.112 Each of the relitigation estoppels — cause of action estoppel, issue estoppel and Anshun estoppel — applies to privies of the original parties as if they had been parties to the litigation. Accordingly, privies are bound by the relitigation estoppels and may assert them against any other parties or their privies. The same principles ‘govern the identification of privies for the purpose of all forms of estoppel’.241

241 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [23] per French CJ, Bell, Gageler and Keane JJ. It should be noted that the application of Anshun estoppel to bind privies had previously been regarded as more difficult, and it had been suggested that the test for privity was different in cases of Anshun estoppel: see Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [62]–[63] P agreeing),[104] per Handley AJA.

per Giles JA (Allsop

26.113 A privy is, generally speaking, a successor in title of an original party. According to Spencer Bower and Handley:242

Page 47 of 63 Chapter 26 Finality of Litigation

Privies include any person who succeeds to the rights or liabilities of a party on death, insolvency, by assignment or by statute, or who is otherwise identified in estate or interest. The party estopped by privity must have some interest,legal or beneficial, in the previous litigation or its subject matter, and accordingly assignees are privies of the assignor.

In the leading Australian judgment of Ramsay v Pigram, Barwick CJ observed that privies may be said to be fall into three categories: ‘privies of blood, of title and of interest’.243 Most cases concern the question whether there is privity of interest.

Page 1032 ‘The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.’244

242 Spencer Bower and Handley, Res Judicata, 4th ed, LexisNexis, London, 2009, [9.38] (citations omitted). 243 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (1968) 118 CLR 271 at 279

at 910

per Lord Reid; Ramsay v Pigram

per Barwick CJ.

244 Ramsay v Pigram (1968) 118 CLR 271 at 279

per Barwick CJ.

26.114 Certain categories of relationship have been readily recognised as giving rise to privity, such that the privy will be bound by an estoppel in later litigation despite not having been party to the earlier proceedings. These include principal and agent, and beneficiary and trustee.245 In Tomlinson v Ramsey Food Processing Pty Ltd, a majority of the High Court explained that the circumstances in which privity of interest will be established fall into two categories.246 First, privity will exist where the party to one proceeding had a legal interest in the outcome of the other proceeding (whether earlier or later), which was represented by a person who was a party to the other proceeding. This may be characterised as ‘representation of interest’. The existence of a mere economic interest is insufficient to establish privity, even if the person said to be a privy exerted control over the earlier proceedings.247 Secondly, there will be privity of interest when a person acquires a legal interest from another, in circumstances where the other would be bound by an estoppel by reason of a judgment concerning the legal interest. This may be referred to as ‘derivation of interest’.

245 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [40] Gageler and Keane JJ.

per French CJ, Bell,

246 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [31]–[33] per French CJ, Bell, Gageler and Keane JJ. See also at [38]–[40] as to the policy reasons grounding the recognition of particular relationships as giving rise to privity. 247 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [35] Gageler and Keane JJ.

26.115

per French CJ, Bell,

Page 48 of 63 Chapter 26 Finality of Litigation The test for privity may be narrower in Australia than in England,248 where it has been held that ‘there must be a sufficient degree of identification between the two [parties] to make it just’ that a judgment on one be binding on the other.249

248 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [17] Gageler and Keane JJ. 249 Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 [2002] 2 AC 1

at 32

at 515

; [2001] 1 All ER 481 (HL)

per French CJ, Bell,

per Megarry VC; Johnson v Gore Wood & Co (a firm)

per Lord Bingham.

Cause of action estoppel and issue estoppel arise only from final judgments

26.116 Only decisions that are final and conclusive of the cause pleaded by the plaintiff give rise to the relitigation estoppels.250 A decision is final in this sense if it conclusively (as distinguished from provisionally) disposes of the matter. In Kuligowski v Metrobus, the High Court explained that:251

Page 1033   A ‘final’ decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be ‘final and conclusive on the merits’: ‘the cause of action must be extinguished by the decision which is said to create the estoppel’.

Interlocutory judgments cannot give rise to the relitigation estoppels,252 although the court may restrain such relitigation where it is in the interests of justice to do so.253 In some circumstances, repeated interlocutory litigation may be an abuse of process.254

250 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 412 per Gummow J: cause of action estoppel requires that there was a final judgment in the earlier matter (citing Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 [1999] HCA 27 at [160]

at 909–10

); Re Wakim; Ex parte McNally (1999) 198 CLR 511;

per Gummow and Hayne JJ. See also Tomlinson v Ramsey Food Processing Pty Ltd

(2015) 256 CLR 507; [2015] HCA 28 at [22]

per French CJ, Bell, Gageler and Keane JJ.

251 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [25]

(per curiam).

252 Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 at [34] Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [20]–[24] and Keane JJ; Liu v The Age Company Ltd [2016] NSWCA 115 at [168]

; see also Tomlinson v

per French CJ, Bell, Gageler

per McColl JA.

253 Liu v The Age Company Ltd [2016] NSWCA 115 at [168]–[169],[199] per McColl JA; see also at [13]–[14] per Beazley P, [292] per Ward JA. It should be noted, though, that a court can revisit interlocutory orders. ‘A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust’: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178

per Gibbs CJ, Aickin, Wilson and Brennan JJ.

Page 49 of 63 Chapter 26 Finality of Litigation 254 Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139 at [40] J agreeing); see generally 26.126–26.130 below, especially 26.130.

per Emmett JA (Leeming JA and Adamson

26.117 It is often said that in order to give rise to an estoppel, a decision must be on the merits.255 But this does not imply that the decision must be given after court determination of the disputed issues on the basis of evidence or argument. All that the expression implies is a final decision that disposes of the matter, other than on purely procedural grounds. Hence, a default judgment is final and conclusive for the purpose of the relitigation estoppels even if it does not result from a consideration of the merits. Lord Diplock explained the meaning of ‘on the merits’in the following terms:256 What it means in the context of judgments delivered by courts of justice is that the court has held that it has jurisdiction to adjudicate on an issue raised in the cause of action to which the particular set of facts give rise, and that its judgment on that cause of action is one that cannot be varied, reopened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction.

Thus, where a cause of action had been pleaded and ‘disposed of’ in an earlier judgment, albeit without trial, a subsequent proceeding in respect of substantially the same cause of action was precluded by cause of action estoppel.257 Default judgments and consent judgments create cause of action estoppel, and may create issue estoppel in limited circumstances, as is discussed in the next section.

Page 1034

255 See, for example, Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92 at [45] Murphy JJA agreeing).

per Newnes JA (Pullin and

256 DSV Silo — und Verwaltungsgesellschaft mbH v Owners of the Sennar [1985] 2 All ER 104; [1985] 1 WLR 490 at 106and 494

(HL)

, respectively. See also at 499 per Lord Brandon.

257 Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 526–7

per Clarke JA (Samuels JA agreeing);

Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 422

per Gummow J.

26.118 Cause of action estoppel and issue estoppel do not arise where litigation is brought to an end without any judgment at all. For example, these estoppels do not arise where the plaintiff ’s claim has been struck out for failing to disclose a cause of action,258 or where the plaintiff ’s claim has been struck out as a result of its failure to comply with a self-executing order which provided for that consequence,259 where the proceedings have been dismissed for want of prosecution,260 or where the proceeding has been discontinued.261 Having said that, one should be aware that it is sometimes possible to obtain default judgment after a pleading has been struck out for procedural reasons.262 As discussed in the following section, default judgments can support cause of action estoppel. It is therefore advisable to obtain judgment whenever possible.

258 Rogers v Legal Services Commission (SA) (1995) 64 SASR 572

per Lander J (Cox and Prior JJ agreeing).

Page 50 of 63 Chapter 26 Finality of Litigation 259 Baines v State Bank of New South Wales (1985) 2 NSWLR 729 at 738 260 Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [114] 261 Attorney-General (SA) v Kowalski [2015] SASC 123 at [116]

per Powell J.

per Fraser JA. per Blue J.

262 See Chapter 9, 9.7 and see also 9.22.

26.119 While a final and conclusive judgment is a condition precedent for cause of action estoppel, issue estoppel and Anshun estoppel, it is not necessarily so in connection with abuse of process. This latter jurisdiction is broad enough to allow the court to decide that the raising of a particular issue or cause is an abuse of process notwithstanding that it was not determined by a final judgment on the merits. For example, initiating a claim in respect of a cause of action that has already been struck out for failure to comply with court orders could, in some circumstances, amount to abuse of process.263

263 See 26.131 below.

Default and consent judgments

26.120 As already noted, a default judgment creates cause of action estoppel in just the same way as a judgment after trial because it finally disposes of the cause of action.264 But any issue estoppel arising from a default judgment will be very limited:265 … default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and … they can estop only for what must ‘necessarily and with complete precision’ have been thereby determined.

In considering what has been determined by a default judgment, it is, however, permissible to consider not only the terms of the judgment itself, but also the pleadings which provided a foundation for the judgment.266

Page 1035

264 New Brunswick Railway Co v British and French Trust Corpn Ltd [1939] AC 1 v Durnford Ford (a firm) [1992] QB 483 207 at [54]–[54]

; [1992] 2 All ER 122

; [1938] 4 All ER 747 (HL)

; Palmer

; Mango Boulevard Pty Ltd v Spencer [2010] QCA

per Muir JA.

265 New Brunswick Railway Co v British and French Trust Corpn Ltd [1939] AC 1 ; [1938] 4 All ER 747, HL(E) ; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 (PC) at 1012, see also at 1010; Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [54]

per Muir JA, [124]–[125] per Fraser JA.

266 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993

(PC) at 1013.

Page 51 of 63 Chapter 26 Finality of Litigation

26.121 It is doubtful whether Anshun estoppel, which attaches to issues and causes of action that could have been raised in earlier proceedings, can arise from a default judgment,267 save for where the default judgment would certainly be inconsistent with the judgment in the second proceedings.268 In this respect, it has been observed that there is a ‘bias … in favour of resolution of issues on the merits and against putting a party out of court who has never had such a resolution’.269

267 Atsas v Gertsch (NSWSC, Hodgson CJ in Eq, 28 July 1998, unreported); Clout v Klein [2001] QSC 401 at [44] Holmes J; LPD Holdings (Aust) Pty Ltd v Russells [2017] QSC 45 at [57]–[58] per Flangan J.

per

268 KC Park Safe (SA) Pty Ltd, Kamer & Lester v Adelaide Terrace Investments Pty Ltd (FCA, Mansfield J, 17 September 1998, unreported). 269 Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 346 Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 522

per Brennan and Dawson JJ; Linprint

per Kirby P.

26.122 A consent judgment can give rise to cause of action estoppel just as does any other judgment.270 Relitigating issues disposed of in a consent judgment may constitute an abuse of process.271 A consent judgment can also give rise to issue estoppel, but ‘only in respect of the fundamental issue or issues which were clearly determined by the judgment’.272 For this reason, relying on a consent judgment for an issue estoppel argument is not always straightforward because it may be difficult to determine precisely the issues that were essential to and determined by the consent order.273 In identifying what was determined by the earlier proceeding for the purpose of issue estoppel, ‘any material may be looked at which will show what issues were raised and decided’.274 Ordinarily, reasons for judgment will usually be the principal source.275 But other sources — such as pleadings and affidavits — may also be considered, and may be particularly relevant where the judgment has been given by consent.276

270 Isaacs v Ocean Accident and Guarantee Corporation Ltd [1958] SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508 Rogers v Legal Services Commission (1995) 64 SASR 572 at 595 271 See, for example, Leybourne v Habkouk [2012] NSWCA 212 at [21] 272 Commissioner of Taxation v Day (2007) 164 FCR 250 at [15] Makhoul v Barnes (1995) 60 FCR 572 at 582

per Deane, Toohey and Gaudron JJ;

per Lander J (Cox and Prior JJ agreeing). (per curiam). per Spender J (Edmonds J agreeing); see also

(per curiam).

273 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508 For discussion of consent judgments, see Chapter 23, 23.47–23.49. 274 Jackson v Goldsmith (1950) 81 CLR 446 at 467

per Fullagar J.

275 Jackson v Goldsmith (1950) 81 CLR 446 at 467

per Fullagar J.

per Deane, Toohey and Gaudron JJ.

276 Isaacs v Ocean Accident and Guarantee Corporation Ltd [1958] SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [23] JA (Leeming and Simpson JJA agreeing).

per Meagher

Page 52 of 63 Chapter 26 Finality of Litigation

26.123 In one case, the court found that an issue had not been determined by the earlier consent judgment because it was not addressed in the parties’ statement of facts, issues and contentions, nor in the affidavit material.277 Similarly, for the purpose of issue estoppel, parties are bound by admissions of fact which were central to the first

Page 1036 judgment, even if the admission was vitiated by error, or ‘an erroneous assumption as to the legal quality of that fact’.278

277 Commissioner of Taxation v Day (2007) 164 FCR 250 at [18]–[19] per Spender J (Edmonds J agreeing); see also Isaacs v Ocean Accident and Guarantee Corporation Ltd [1958] SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq. 278 Hoystead v Commissioner of Taxation [1926] AC 155

at 165

.

26.124 There are good reasons of policy why the court should be slow to work its way back from the terms of a consent order to the grounds on which it might be supposed the order was founded. Parties may agree an outcome, such as the dismissal of a claim or terms of payment, on the basis of wholly different assumptions about the underlying facts. A rule that held the parties bound forever after to any fact that could possibly be inferred from a consent order, would make settlements less attractive because of the fear that an agreed outcome may constrain the parties in other contexts. It is therefore suggested that in the absence of a clear agreement concerning specific issues and not just the outcome, a mere inference of an underlying fact should not give rise to issue estoppel. A plain consent order dismissing the action or ordering the defendant to pay a sum of money to the plaintiff should not give rise to issue estoppel any more than does a default judgment. There are no strong public interest reasons for giving default or consent judgments extensive issue estoppel effect, because the court will not have invested time in the determination of the issue and there is no risk of conflicting decisions, because consent orders do not represent the court’s own view on the issues. Parties who wish to be bound by discrete findings can always expressly agree a consent judgment that will have such effect.

26.125 Even if a consent judgment does not give rise to issue estoppel, it does not necessarily leave the parties free to raise issues that could have been determined in the proceedings that ended in a consent order, for there is always the possibility of invoking Anshun estoppel. A party may be prevented from pursuing an issue if it was unreasonable not to have raised it in earlier proceedings, even if those earlier proceedings were concluded by a consent judgment.279

279 Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336 at [129]–[136] per Bathurst CJ (Beazley P and Emmett JA agreeing).

Abuse of process

26.126

, especially [136]

Page 53 of 63 Chapter 26 Finality of Litigation Even where none of the estoppels apply, the court nevertheless has a residual discretion to prevent abuses of process.280 In Tomlinson v Ramsey Food Processing Pty Ltd, a majority of the High Court explained the application of general principles concerning abuse of process to the particular problem of relitigation in the following terms:281 … it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding,can constitute an abuse

Page 1037 of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

280 Walton v Gardiner (1993) 177 CLR 378 at 393 (1889) 14 App Cas 665 14.68.

. The principle is often traced to the judgment in Reichel v Magrath

. As to the court’s general power to prevent abuses of process, see Chapter 14, 14.30–

281 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26] Gageler and Keane JJ (citations omitted).

per French CJ, Bell,

26.127 The power to strike out or to stay proceedings owing to an abuse of process is, however, to be used sparingly by the court.282 The party alleging an abuse of process bears a ‘heavy’ onus.283 This is consistent with the broader principle that a party ought not to be denied access to the court unless there is a significant countervailing reason to do so.

282 Walton v Gardiner (1993) 177 CLR 378 at 392 (2010) 241 CLR 118; [2010] HCA 28 at [24] Bell JJ. 283 Williams v Spautz (1992) 174 CLR 509 at 529

per Mason CJ, Deane and Dawson JJ; Spencer v Commonwealth per French CJ and Gummow J, [60] per Hayne, Crennan, Kiefel and

per Mason CJ, Dawson, Toohey and McHugh JJ.

26.128 In Rogers v R ,284 McHugh J observed that: … abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties;or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

Page 54 of 63 Chapter 26 Finality of Litigation

284 (1994) 181 CLR 251 at 286

per McHugh J; his Honour’s statement was endorsed by the majority in Batistatos v

Roads and Traffic Authority of New South Wales (2006)226 CLR 256; [2006] HCA 27 at [15] Gummow, Hayne and Crennan JJ.

per Gleeson CJ,

26.129 Abuse of process is a broad and flexible doctrine, and the categories of case in which it will be applied are not closed.285 Nevertheless, in the relitigation context, the court ought to have regard to the following matters, identified by Giles CJ in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd :286 (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of — (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice;and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

285 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [9],[14]–[15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]

per French CJ, Bell, Gageler and Keane JJ.

286 (1997) Aust Torts Reports 81-423 (NSWSC); see also O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at [106]

,see also [107] per Beazley P (McColl JA and Tobias AJA agreeing).

26.130 There may be overlap between the doctrine of abuse of process, and the relitigation estoppels. In other words, repeatedly pressing a claim, or raising an issue of fact or law in successive proceedings, may be both an abuse of process and conduct which gives rise to an estoppel.287 But the doctrine of abuse of process has

Page 1038 wider application. For example, an abuse of process may exist even where the second proceedings do not involve the same parties (or their privies).288 It may be an abuse of process to reagitate an interlocutory matter; there would be no estoppel in such a case, because of the absence of any final judgment.289 It may also be an abuse of process to pursue the same claim in two different courts;290 again, there would be no estoppel in those circumstances, owing to the absence of any judgment.

287 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [24] Gageler and Keane JJ.

per French CJ, Bell,

Page 55 of 63 Chapter 26 Finality of Litigation 288 O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at [105] per Beazley P (McColl JA and Tobias AJA agreeing); Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26] per French CJ, Bell, Gageler and Keane JJ (citations omitted). 289 Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139 at [40] J agreeing).

per Emmett JA (Leeming JA and Adamson

290 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [90] Crennan and Bell JJ.

per Gummow ACJ, Hayne,

Abuse of process where the first proceedings have been dismissed before judgment

26.131 In England, it is well established that where proceedings are dismissed before judgment on the merits has been delivered, it may be an abuse of process to commence fresh proceedings in respect of the same cause of action.291 In Deangrove Pty Ltd (rec & mgrs apptd) v Commonwealth Bank of Australia ,292 Sackville J left open the question whether the English approach ought to be followed in Australia. His Honour considered that the plaintiff in the case at bar had given a satisfactory explanation for the conduct in the first proceedings which had led to their being dismissed, such that the second proceedings were not an abuse of process.293 The issue was considered more fully by the Court of Appeal of Western Australia in Brocx v Hughes .294 The plaintiff had failed to comply with a selfexecuting order (or ‘springing’ order), and the claim had been dismissed; an application to extend the time for compliance was unsuccessful. The plaintiff then commenced fresh proceedings.Newnes JA considered the English and Australian authorities on the point, but considered that the question whether there was an abuse of process in the circumstances must now be considered in light of modern case management principles.295 His Honour explained that:296

Page 1039   Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be ‘productive of serious and unjustified trouble and harassment’ to the defendant,if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. … Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party’s conduct was contumacious,a second action by that party to enforce the same claim will generally be an abuse of process. …

Whether the second proceedings will be regarded as an abuse of process will turn on the circumstances of the case.297 Mere failure to comply with a self-executing order will not, absent more, constitute ‘contumacious’ conduct for the purpose of the test.298

291 Securum Finance Ltd v Ashton [2001] Ch 291

; [2000] 3 WLR 1400

(EWCA); see also Janov v Morris [1981] 3 All

ER 780 ; Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 ; see generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London,2013, [25.95]. In Securum, the first proceedings had been struck out for delay, but the ratio was expressed in broader terms, and it has been held that it is not limited to such cases: Khan v Khan [2015] EWHC 2625 (Ch) at [18] per Master Bowles.

Page 56 of 63 Chapter 26 Finality of Litigation 292 (2001) 108 FCR 77; [2001] FCA 173

.

293 (2001) 108 FCR 77; [2001] FCA 173 at [21]–[28], especially [25] and [28]. An earlier judgment of Bryson J in Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700 ; cast doubt on the applicability of certain of the English judgments, but that judgment preceded Securum Finance Ltd v Ashton [2001] Ch 291 ; [2000] 3 WLR 1400 (EWCA)

.

294 (2010) 41 WAR 84; [2010] WASCA 57

.

295 Brocx v Hughes (2010) 41 WAR 84; [2010] WASCA 57 at [93]–[94]

per Newnes JA (Pullin JA agreeing).

296 Brocx v Hughes (2010) 41 WAR 84; [2010] WASCA 57 at [97]–[98] , and see also [96] as to the ‘public interest in the efficient use of [court] resources’ per Newnes JA (Pullin JA agreeing); see also at [15]–[16]per Buss JA. 297 Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92 at [45]

per Newnes JA (Pullin and Murphy JJA agreeing).

298 Brocx v Hughes (2010) 41 WAR 84; [2010] WASCA 57 at [98]

per Newnes JA (Pullin JA agreeing).

Disallowing collateral attack

26.132 A specific category of abuse of process is the collateral attack on a previous judgment.299 A collateral attack occurs where a party seeks to challenge or call into question a previous judgment, not through an appeal, but through subsequent litigation. Collateral attacks are not permitted because they undermine the public interest in the finality of litigation, and the public interest in judgments being treated as conclusive and incontrovertible.300

299 Walton v Gardiner (1993) 177 CLR 378 at 393

per Mason CJ, Deane and Dawson JJ.

300 The public interest in ‘the need for decisions of the courts … to be accepted as incontrovertibly correct’ was discussed in Rogers v R (1994) 181 CLR 251 at 273–4

per Deane and Gaudron JJ.

26.133 As will be seen, collateral attacks may take a variety of forms. One of the most well-known categories is where an unsuccessful party to litigation commences proceedings against its legal representative for negligence; the protection against such litigation is known as ‘advocates’ immunity.

26.134 As noted earlier, cause of action estoppel, issue estoppel and Anshun estoppel apply only between the parties to the proceedings and their privies. The doctrines cannot be invoked by, or against, a person who was not a party to the proceedings in which the judgment relied upon was given. Although there are, as we have seen earlier, perfectly good reasons for limiting these rules to the parties and their privies, the results of such limitation are not always satisfactory. There are situations where allowing a party to raise arguments against a stranger, which had been decided against the party in earlier proceedings, could result in unjustified inconsistencies between the findings

Page 1040

Page 57 of 63 Chapter 26 Finality of Litigation of different courts and undermine public confidence in the administration of justice. To avoid such situations the courts have pursued a general policy of discouraging collateral attacks on court decisions. In Rogers v R, Deane and Gaudron JJ considered the principles grounding the doctrines of cause of action estoppel and issue estoppel, before continuing:301 There is, however, another related principle, likewise fundamental, which is embodied in the Latin maxim res judicata pro veritate accipitur. That maxim gives expression to a rule of Roman law which has since been recognized as part of our common law. It expresses the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct. The same idea was expressed in Coke’s Institutes in terms of the ‘incontrollable credit and veritie’of the records and memorials of the judges of the courts of record, which ‘admit no averment, plea or proofe to the contrarie’. That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice. From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against ‘the scandal of conflicting decisions’. Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind. However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud.

This public policy finds expression in the exercise of the discretionary jurisdiction to prevent abuse of process. The court may exercise its discretion to restrain a party from advancing against a stranger an argument that is inconsistent with an earlier judgment that went against them, if and only if the court concludes that in the circumstances of the particular case it would be unjust to allow the party to do so. The jurisdiction is exercised in order to prevent parties from commencing proceedings which would have the effect of challenging court decisions that went against them in earlier proceedings. An abuse of process will only arise where a party seeks to relitigate an issue that was determined against it.302

301 Rogers v R (1994) 181 CLR 251 at 273–4

per Deane and Gaudron JJ (citations omitted).

302 Re HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1; [2014] NSWSC 774 at [20]

per Brereton J. See, for example, in O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698;

[2013] NSWCA 315 at [113]

per Beazley P (McColl JA and Tobias AJA agreeing), citing the judgment of Heydon JA

in R v O’Halloran (2000) 159 FLR 260; [2000] NSWCCA 528 , Beazley P remarked that there are circumstances in which relitigation will be permitted: for example, where an issue has been determined in civil litigation, it is not an abuse of process for the public prosecutor to bring criminal proceedings concerning the same issue. Her Honour went on to state, at [113], that relitigation would also be permissible ‘where some regulatory action has been taken against an individual and civil proceedings are also brought’.

26.135 One leading authority which demonstrates the importance which courts place on preventing collateral attacks is the House of Lords decision in Hunter v Chief Constable of West Midlands.303 At their trial for murder, the prosecution relied on the

Page 1041 accused’s confessions. They claimed that the confessions had been extorted by police violence. The judge allowed the confessions to go to the jury and the jury convicted despite the accused’s protestations. Subsequently, the accused brought an action against the policemen involved, claiming damages for assault. The House of Lords held that it was an abuse of the process of the court to attempt to relitigate the same issue and that the actions should be struck out. It is easy to see why the Hunter principle continues to be regarded ‘as a matter of high public policy’,304 and continues to be cited by the highest courts in Australia and England, despite the fact that after serving many years in prison the accused were found to have suffered a grave miscarriage of justice and their convictions were set aside.305 This is due to the fact that conflicting court decisions on identical issues are bound to corrode public trust in the court system. The problem could be particularly acute where criminal and civil courts

Page 58 of 63 Chapter 26 Finality of Litigation reach contradictory conclusions, which is not unlikely given the different standards of proof applicable in criminal and civil proceedings. If the plaintiffs in Hunter had been allowed to proceed with their civil action and had succeeded in establishing their claim against the police, the legitimacy of their criminal convictions would inevitably have been seriously undermined. The principle of collateral attack has often been applied in circumstances where a plaintiff seeks to commence civil proceedings which entail a collateral attack on earlier criminal proceedings; however, the principle is equally applicable where both proceedings are civil.

303 Hunter v Chief Constable of West Midlands [1982] AC 529 ; [1981] 3 All ER 727 (HL) . The Court of Appeal decision in this case was reported as McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227 (CA). 304 Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615 Steyn.

at 679

; [2000] 3 All ER 673 at 760

(HL) per Lord

305 The claimants, known as the Birmingham Six, were convicted in 1975 of murder, in the aftermath of an IRA bombing that resulted in the death of a number of persons. Their appeal against the conviction was dismissed. In 1987, their case was referred to the Court of Appeal by the Home Secretary, but was dismissed. In 1990, the case was referred again to the Court of Appeal on the basis of further evidence. In 1991, the Court of Appeal allowed the appeal on the grounds that the conviction was unsafe and unsatisfactory. The accused served 16 years in prison before being cleared.

26.136 After a review of the leading authorities, the principles relevant to determining whether there is an impermissible collateral attack on an earlier judgment were explained by Sir Andrew Morritt VC in Secretary of State for Trade and Industry v Bairstow thus:306 (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. … (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or(ii) to permit such relitigation would bring the administration of justice into disrepute.

Page 1042

306 [2004] Ch 1

; [2003] EWCA Civ 321 at [38]

(Potter and Hale LJJ agreeing). This has been cited with approval in

Australia: Cleary v Jeans (2006) 65 NSWLR 355; [2006] NSWCA 9 at [45]

per Bryson JA, and see also [36] per

Handley JA; [61]–[63] per Young CJ in Eq; Liao v New South Wales [2014] NSWCA 71 at [193] (Beazley P agreeing).

per Barrett J

Advocates’ immunity

26.137 A particular type of collateral attack, to which special rules apply, are negligence claims brought by disappointed litigants against their legal advisers. This circumstance engages the principle of ‘advocates’ immunity’.In short, the

Page 59 of 63 Chapter 26 Finality of Litigation principle is that an advocate (whether a barrister or solicitor) will not be liable to their client in negligence for acts or omissions in the course of in-court work, or in the course of ‘work done out of court which leads to a decision affecting the conduct of the case in court’.307 In respect of out-of-court work, the test for the application of advocates’ immunity has also been expressed as being whether the work in question is ‘“work intimately connected with” work in a court’.308

307 Giannarelli v Wraith (1988) 165 CLR 543 at 560 , and see also 555 and 559–60 per Mason CJ. Note that the English courts have adopted a radically different approach to negligence claims against lawyers: Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615

; [2000] 3 All ER 673 (HL)

(2005) 223 CLR 1; [2005] HCA 12 at [56]–[64] position in other jurisdictions.

. See also D’Orta-Ekenaike v Victorian Legal Aid

per Gleeson CJ, Gummow, Hayne and Heydon JJ, considering the

308 D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [86] and Heydon JJ.

per Gleeson CJ, Gummow, Hayne

26.138 The policy basis for advocates’ immunity was examined by a majority of the High Court in D’Orta-Ekenaike v Victorian Legal Aid. They explained that advocates’ immunity was based on two issues of policy.309 First, the role of the judicial process in the operation of government meant that there was a public interest in ensuring that judicial proceedings resulted in the ‘final quelling of … controversy’.310 Secondly, it was a ‘central and pervading tenet of the judicial system’, reflected in numerous specific rules of practice, that judgments could be reconsidered only in a very limited range of circumstances.311

309 These two matters were drawn from the earlier judgment of Giannarelli v Wraith (1988) 165 CLR 543

: see D’Orta-

Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [5] per Gleeson CJ, Gummow, Hayne and Heydon JJ. The prospect of civil proceedings against legal advisers might also have practical consequences (for example, because lawyers might be more inclined to prolong proceedings, to leave no stone unturned). But the majority did not consider that that was a principled reason in favour of the immunity: at [29] per Gleeson CJ, Gummow, Hayne and Heydon JJ; see also [25]. 310 D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [31]–[33],[43]–[46] Gummow, Hayne and Heydon JJ.

per Gleeson CJ,

311 D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]–[36],[43]–[46] Gummow, Hayne and Heydon JJ.

per Gleeson CJ,

26.139 Advocates’ immunity does not extend to work which is ‘unconnected with work done in court’.312 In other words, advocates’ immunity is only engaged in respect of out-of-court work where it ‘affect[s] the conduct of the case in court and the resolution of the case by that court’.313 The boundary of the immunity is informed by the principle of finality of litigation, as was demonstrated in Attwells v Jackson Lalic Lawyers Pty Ltd .314 The majority judgment held that advocates’ immunity did not extend to negligent advice concerning settlement, even where the settlement

Page 1043

Page 60 of 63 Chapter 26 Finality of Litigation was reflected in consent orders.315 This was because settlement advice could not affect judicial determination of the case. Accordingly, the principles concerning the importance of finality of litigation would not be engaged.316

312 Giannarelli v Wraith (1988) 165 CLR 543 at 559

per Mason CJ.

313 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [6] Gageler and Keane JJ. 314 (2016) 259 CLR 1; [2016] HCA 16

per French CJ, Kiefel, Bell,

, especially [30], [32]–[36] per French CJ, Kiefel,Bell, Gageler and Keane JJ.

315 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [6] Gageler and Keane JJ. 316 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 at [38]–[46]

per French CJ, Kiefel, Bell,

per French CJ, Kiefel, Bell, Gageler and

Keane JJ; see also Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 at [31]–[32] Bell, Gageler and Keane JJ agreeing).

per Edelman J (Kiefel CJ,

26.140 The same principles which underlie advocates’ immunity also ground other well-established principles. A party who is unsuccessful in litigation cannot bring civil proceedings against witnesses in respect of false evidence they have given in the earlier proceedings, irrespective of how the cause of action is framed, or the circumstances in which the witness gave evidence.317 Further, no proceedings may be brought against any superior court judge for any judicial act, provided it is within jurisdiction.318

317 Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 [2005] HCA 12 at [38]–[39],[41]–[42]

; D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1;

per Gleeson CJ, Gummow, Hayne and Heydon JJ.

318 D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [40]–[42] Hayne and Heydon JJ.

per Gleeson CJ, Gummow,

Foreign judgments

26.141 It is clear that the decisions of foreign courts can give rise to cause of action estoppel and issue estoppel.319 However, a foreign judgment must be first be recognised in Australia in order to have any effect.320 The principles for recognising a foreign judgment depend on the jurisdiction in which the judgment was delivered. For some overseas jurisdictions, legislation identifies the circumstances in which the judgment will be recognised in Australia.321 For jurisdictions outside the scope of the legislation, the common law will apply: it will be necessary to establish that the foreign court had jurisdiction, that the judgment was ‘for a sum certain’, and that it was ‘final and conclusive’ in the sense that it would be treated as res judicata in the foreign court in which it was delivered.322

Page 61 of 63 Chapter 26 Finality of Litigation 319 DSV Silo — und Verwaltungsgesellschaft mbH v Owners of The Sennar [1985] 2 All ER 104; [1985] 1 WLR 490 (HL)

; Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573; [2008] FCA 592 at [56]–[82]

; Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29; [2013] NSWSC 503 at [206]–[210]

per Sackar J.

320 For the enforcement of foreign judgments, see Chapter 24, 24.95–24.107. 321 Trans-Tasman Proceedings Act 2010 (Cth) (for judgments given in New Zealand); Foreign Judgments Act 1991 (Cth). There is some uncertainty about whether the Foreign Judgments Act 1971 (SA) has continued effect, as to which see Morf-Zinggeler v Morf [1999] WASC 96 at [10]–[22] , but cf M Davies, A Bell and P Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, Ch 41. 322 Schnabel v Lui [2002] NSWSC 15 at [75],[77]

per Bergin J, cited with approval in Telesto Investments Ltd v Ubs Ag

(2013) 94 ACSR 29; [2013] NSWSC 503 at [188]

per Sackar J.

26.142 To ground cause of action estoppel, the foreign judgment must have been on the merits,323 although it has been accepted that judgments will satisfy this criterion

Page 1044 even if they were delivered ‘undefended or by consent’,324 or are characterised by ‘brevity or apparent lack of analysis’.325 Few problems should be experienced with cause of action estoppel arising from foreign judgments since a cause of action is not normally difficult to identify.326

323 Although see Schnabel v Lui [2002] NSWSC 15 at [110]–[116] various definitions which had been given to the term ‘on the merits’. 324 Schnabel v Lui [2002] NSWSC 15 at [135]

per Bergin J,where her Honour canvassed the

per Bergin J.

325 Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29; [2013] NSWSC 503 at [189]

per Sackar J.

326 See 26.90 above. A comparison of the substance of the two causes of action, rather than the form, has been said to be of particular assistance ‘where the first action was brought in a foreign forum’: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 (2013) 94 ACSR 29; [2013] NSWSC 503 at [195]

per Gummow J; see also Telesto Investments Ltd v Ubs Ag

per Sackar J.

26.143 Establishing the identity of issues that were decided in a foreign judgment may be less straightforward.327 The conditions that need to be met in order to base an issue estoppel on a foreign judgment are the same as those applicable to domestic judgments, namely:328 (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

327 See, for example, Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29; [2013] NSWSC 503 at [211]

per Sackar J.

Page 62 of 63 Chapter 26 Finality of Litigation 328 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

at 935

per Lord Guest, endorsed by the

High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21]

(per curiam); applied in the

context of a foreign judgment in Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29; [2013] NSWSC 503 at [204] per Sackar J.

26.144 However, in applying issue estoppel to a foreign judgment, there are good reasons of policy for the court to exercise additional caution beyond what would be necessary where the first proceedings were conducted in a domestic tribunal, as Lord Reid explained in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2):329 In the first place, we are not familiar with modes of procedure in many foreign countries, and it may not be easy to be sure that a particular issue has been decided or that its decision was a basis of the foreign judgment and not merely collateral or obiter. Secondly, I have already alluded to the practical difficulties of a defendant in deciding whether, even in this country, he should incur the trouble and expense of deploying his full case in a trivial case: it might be most unjust to hold that a litigant here should be estopped from putting forward his case because it was impracticable for him to do so in an earlier case of a trivial character abroad, with the result that the decision in that case went against him. …

For these reasons Australian courts approach claims of issue estoppel based on foreign judgments with great care and are reluctant to stop a party to previous foreign proceedings from advancing an issue in this jurisdiction, particularly where the earlier judgment was interlocutory.330

Page 1045

329 Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 (HL) at 918. His Lordship went on, at 918–19, to identify a third matter: the English court must ‘be satisfied that the issues in question cannot be relitigated in the foreign country’. 330 Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573; [2008] FCA 592

.

26.145 It has been held that issue estoppel can arise from a factual finding made in an interlocutory judgment given by a foreign court on a procedural matter, such as on the issue of jurisdiction. However, a finding of jurisdiction would be binding only if the Australian court is convinced that there was an express submission of the jurisdictional issue to the foreign court, that the specific issue was raised and decided and, furthermore, that the Australian court has exercised sufficient caution before recognising the estoppel.331

331 Desert Sun Loan Corporation v Hill [1996] 2 All ER 847 (CA); Armacel Pty Ltd v Smurfit Stone Container Corporation (2008) 248 ALR 573; [2008] FCA 592 at [64]

26.146

.

Page 63 of 63 Chapter 26 Finality of Litigation Although there is little authority on point, it seems likely that Australian courts will apply the doctrine of Anshun estoppel to foreign judgments.332 In addition to the usual criteria for raising Anshun estoppel,333 such authority as there is indicates that the application of the doctrine will be limited in two principal respects. First, as for the other forms of relitigation estoppel when applied to foreign judgments, the Australian court must be satisfied that the foreign court would treat the second proceedings as precluded by the judgment in the first proceeding.334 Secondly, the Australian court will also exercise the caution which is necessitated by the considerations identified by Lord Reid in the passage extracted above.335

332 English case law recognises that the doctrine in Henderson v Henderson (which is substantially similar to Anshun estoppel) applies to foreign judgments: see Desert Sun Loan Corporation v Hill [1996] 2 All ER 847 at 854–5 (referred to in Talacko v Talacko [1999] VSC 81 at [49] per Ashley J; Charm Maritime Inc v Kyriakou [1987] 1 Lloyd’s Rep 433, cited with approval in PCH Offshore Pty Ltd(ACN 086 216 444) v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 at [100]

per Siopis J).

333 See 26.100–26.111 above. 334 PCH Offshore Pty Ltd (ACN 086 216 444) v Dunn (No 2) (2010) 273 ALR 167; [2010] FCA 897 at [105]–[112] Siopis J; Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29; [2013] NSWSC 503 at [235],[239] 335 Talacko v Talacko [1999] VSC 81 at [51] [2013] NSWSC 503 at [239]

End of Document

per Sackar J.

per

per Sackar J.

per Ashley J; Telesto Investments Ltd v Ubs Ag (2013) 94 ACSR 29;

Chapter 27 Obtaining Protection from Costs by an Offer to Settle Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 27 — Obtaining Protection from Costs by an Offer to Settle

Chapter 27 Obtaining Protection from Costs by an Offer to Settle Page 1047 [Current to May 2018]

Introduction

27.1 A number of factors combine to make litigation a potentially very costly undertaking. Clients are normally expected to pay for legal services on an hourly basis, with the result that the more complex and intense the process, the greater the costs will be. The allocation of costs between the parties is governed by the indemnity principle, which means that the unsuccessful party will normally be ordered to pay the successful party’s litigation costs (though this is limited in various ways, and will rarely be equal to the successful party’s actual expenditure on legal fees).1 Therefore, each party runs the risk of having to pay not only its own costs but also those of its opponent(s). Furthermore, there is no upper limit, or cap, to the costs that may be ordered against the unsuccessful party (subject to very few exceptions). To make matters worse, it is very difficult to assess in advance the procedural activity that might be involved in litigating a particular dispute; it is, accordingly, difficult to estimate the duration of the dispute, the number of hearings that may be involved, and the extent of procedural activity, such as discovery, witness statements and interlocutory hearings. As a consequence it is well-nigh impossible to estimate the legal fees that are likely to be generated. It follows that litigation carries a risk of an uncontrollable and unpredictable costs burden, which could even outstrip the value of the subject matter in dispute. For a party of modest means the consequences of losing the case may be ruinous.

1

See generally Chapter 28.

27.2 Given that the costs risk of litigation is high and unpredictable, it is important that litigants should have some means of limiting their exposure to this risk. Plaintiffs may avoid the risk by abstaining from taking legal proceedings. Defendants have less freedom in this regard. Moreover, defendants’ exposure to the costs risk is exacerbated by the principle that for the purpose of the indemnity rule, plaintiffs are usually considered to be the successful party if they recover any proportion of their claim.2 Thus, for instance, a plaintiff will be regarded as the successful party and

Page 1048 may be awarded its entire litigation costs if it obtains judgment for only $1000 of the $100,000 it claimed. If defendants had no way of protecting themselves from costs liability in this type of situation, other than by meeting the claim in full, plaintiffs would be able to exert unfair pressure on defendants. Plaintiffs who were confident of recovering something would be able to inflate their claims, which would have the likely effect of protracting the

Page 2 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle litigation and increasing its costs, sure in the knowledge that they will be able to recover their costs from the defendant. Such a system would be unjust and would create inequality between the litigants. Defendants must therefore have the means of gaining some protection from costs by making offers to meet some of the claim.

2

There are important caveats to this general rule, which are discussed in Chapter 28. For example, if the plaintiff has been successful only on some issues or parts of its case, the court may award costs on an issue-by-issue basis.

27.3 Historically, the first means by which this could be done was by payment into court. Broadly speaking this worked as follows. A defendant could pay a sum of money into court (representing a proportion of the claim) in full settlement of the claim. If the plaintiff accepted it, it could take out the money, would be entitled to its costs up to that point, and the action would come to an end. If the plaintiff declined the payment, the proceedings continued in the normal way, but if the plaintiff failed to recover more than the sum paid in by the defendant (that is, if it failed to better what was on offer), the plaintiff would be liable for the defendant’s costs from the date on which the payment was made.

27.4 The system of payment into court was limited, though. It related only to money claims, it could be used only by defendants, and it required the defendant to be out of funds for some period.

27.5 Today, there are two main means of obtaining protection from costs. The first is the Calderbank letter or Calderbank offer, which is, essentially, a without prejudice offer to settle the proceedings on terms. Failure to accept the offer will be taken into account by the court in the exercise of its discretion as to costs if the offeree fails to beat the offer at trial. There is a substantial body of case law guiding the use of Calderbank letters by the court in awarding costs. Secondly,there are offers to settle under the rules. The rules prescribe the process for making an offer, and the default costs consequences which will follow if the offeree rejects, and fails to beat, the offer.

27.6 In broad terms, a party who rejects a Calderbank offer, or rejects an offer under the rules, will be penalised in costs if it fails to achieve a judgment more advantageous than the offer. Thus, for example, a successful plaintiff is nevertheless likely to be liable for the defendant’s costs from the date of the offer, and those costs will likely be assessed on an indemnity basis, particularly if the failure to accept the offer was unreasonable.

27.7 A Calderbank letter or offer to settle under the rules is not equivalent to an admission of liability or to an acknowledgment that the offeror’s claim or defence is ill-founded. Like any statement made in the course of without prejudice negotiations, they may not be used against the party making the offer, except in relation to determining the incidence of costs. Therefore, a Calderbank letter or offer to settle under the rules must not be communicated to

Page 3 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle the court trying the case before deciding the claim. A party making such an offer is therefore able to protect itself from costs without risking its chances of success on the merits, should the case proceed to trial.

Page 1049

27.8 As will have become clear, a Calderbank letter or an offer to settle under the rules not only enables parties to obtain some protection from costs, but also serves to promote settlement. This is because the offeree faces the risk of adverse costs consequences if it rejects the offer of settlement. The policy reasons for penalising with costs a failure to accept an offer to settle under the rules were explained by the New South Wales Court of Appeal in Maitland Hospital v Fisher (No 2) in the following terms:3 (1)

To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff’s real claim which can be placed before its opponent without risk that its ‘bottom line’ will be revealed to the court;

(2)

To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and

(3)

To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances that party should ordinarily bear the costs of litigation.

It has been said that these objectives apply equally to the costs consequences which flow from a failure to accept a Calderbank offer.4

3

(1992) 27 NSWLR 721 at 724

(per curiam), cited with approval in Grbavac v Hart [1997] 1 VR 154

JA; see also Morgan v Johnson (1998) 44 NSWLR 578 at 582 4

per Hayne

per Mason P.

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [21]

(per curiam).

27.9 On the other hand, in making special orders for costs because a party has insisted on court adjudication rather than accepting an offer, courts have sometimes had regard to the policy objective that ‘[p]otential litigants should not be discouraged from bringing their disputes to the Courts’.5 It has also been suggested that court adjudication may be more appropriate than settlement in certain, limited categories of case, such as where a party seeks the ‘vindication’ of a judgment in the face of serious allegations against it, or where a public body seeks to have the court resolve a question of general importance.6

Page 4 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 5

Aljade & MKIC v OCBC [2004] VSC 351 at [60]

per Redlich J; Hazeldene’s Chicken Farm Pty Ltd v Victorian

WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [22] Calderbank offers. 6

(per curiam). Both cases concerned

Each of these categories was identified by Mansfield J in Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433 at [10] necessarily not be common’.

. His Honour stated, however, that ‘Such cases will

27.10 The efficacy of the system in ensuring fair treatment and in promoting settlement crucially depends on the predictability of the consequences of offers made. If a defendant could not be sure that it would be entitled to its costs in the event that the plaintiff failed to recover more than the defendant had offered, defendants would

Page 1050 not be adequately protected from the risk of costs and plaintiffs might gain unfair advantage over defendants. Similarly, if the consequences of offers are unpredictable, parties would find it difficult to assess the benefits of offers made, and to compare these benefits to the expected benefits of proceeding to trial. Certainty and predictability of consequences are not only a requirement of fairness but are the key to the successful operation of both Calderbank letters and offers to settle under the rules as a vehicle for settlement. Finally, unpredictability of consequences is bound to encourage further expensive wrangling over costs,further waste of court and litigant resources and thereby undermine the overriding objective.

27.11 Unfortunately, as will be seen, each of the systems — Calderbank letters and offers to settle under the rules — presently have limitations. Calderbank letters do not automatically generate costs consequences; rather, they are a significant matter to which the court will have regard in exercising its discretion as to costs. Whilst the exercise of the discretion is constrained by guidelines established in case law, the allocation of costs ultimately remains a matter for the discretion of the court.

27.12 On the other hand, the rules which create the regime in each jurisdiction for offers to settle do generally provide this certainty, by laying down default costs consequences which will apply unless the court otherwise orders. It is clear that there is a presumption that the default consequences will apply. Nevertheless, the circumstances in which the default consequences will be departed from are not always certain; for example, it is unsettled as to whether exceptional circumstances are required for departure. More seriously, as will be discussed in greater detail later in the chapter,7 the rules in most Australian jurisdictions make no, or inadequate, provision for the circumstances in which a plaintiff fails to accept a defendant’s offer, and the defendant is then successful at trial.

7

27.13

See 27.99–27.112 below.

Page 5 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle It might also be said that some rules provide insufficient motivation to settle, because they fail to penalise sufficiently a rejection of an offer. As will be seen, in some jurisdictions, the default consequence of failing to accept an offer,and then failing to beat it at trial, is no more punitive than the application of the usual rule that costs follow the event. There is diversity amongst jurisdictions as to the costs consequences of rejecting an offer, but certainly no Australian jurisdiction goes as far as the regime which operates in England in terms of certainty and proportionality of consequences.8

8

As to which, see generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 26, ‘Obtaining Protection from Costs by Part 36 and other Offers to Settle’.

27.14 By way of comparison, the English Civil Procedure Rules (CPR) impose severe costs consequences on a party who fails to accept an offer, and then fails to beat it at trial. The relevant rule is CPR 36, which prescribes how offers under the rules must be made (and accepted), and the consequences of acceptance and non-acceptance of the offer.9 The general costs consequences for failing to accept an offer

Page 1051 made under CPR 36 (‘Part 36 offer’) are as follows. Where a defendant has made a Part 36 offer, and the claimant has failed to beat it at trial,the defendant is entitled to costs from the date that the relevant period10 expired, and interest on those costs.11 Where a claimant has made a Part 36 offer, and has then obtained a judgment ‘at least as advantageous’ at trial, the claimant is entitled to costs on an indemnity basis from the date that the relevant period expired, together with interest on those costs. The claimant is also entitled to interest on the judgment sum from the expiry of the relevant period.12 Further, the claimant will be entitled to an additional lump sum of up to £75,000.13 The court must make these orders unless it considers it unjust to do so; the rules prescribe the matters to be taken into account in determining whether it would be unjust.14

9

For a detailed discussion of the operation of CPR Part 36, see Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 26, ‘Obtaining Protection from Costs by Part 36 and other Offers to Settle’.

10 The relevant period is a period of time (of 21 days or more) specified in the offer, during which the defendant is liable for the claimant’s costs if the offer is accepted. The relevant period is calculated differently where the offer is made less than 21 days before trial: see CPR 36.3(g) and 36.5(1)(c). 11 CPR 36.17(1)(a) and (3). 12 CPR 36.17(1)(b) and (4). 13 The additional lump sum is calculated as 10 per cent of the amount awarded by the court (as the judgment sum, or, where there is no judgment sum, as costs) up to £500,000, and 5 per cent of the amount awarded above £500,000, up to the cap of £75,000: CPR 36.17(4)(d). 14 CPR 36.17(5).

Payments into court

27.15 Payments into court were the first means by which a party could protect itself from adverse costs orders. The defendant could pay a sum of money into court, in full settlement of the claim. If the plaintiff accepted the offer, it could take the money out of court and be entitled to its costs up to that point. The proceedings would thereby be concluded. If the plaintiff did not accept the offer of payment, the proceedings would continue. But if the plaintiff failed to better the offer —that is, if judgment was given for a sum less than the payment into court — the court would normally award costs to the defendant from the date of payment into court.15

Page 6 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

15 A lengthy exposition of the law concerning payments into court is provided in B C Cairns, Australian Civil Procedure, 11th ed, Lawbook Co, Sydney, 2016, [11.240]–[11.300]. See also Leichhardt Municipal Council v Green [2004] NSWCA 341 at [11]

per Santow JA (Bryson and Stein JJA agreeing).

27.16 Only the rules in the Northern Territory and Tasmania continue to make specific provision for payments into court;16 there is also limited provision in the Australian Capital Territory for payments into court in relation to commercial arbitrations.17 The New South Wales rules provide that where a party has made a payment into court, the court may take into account the fact and the amount of payment in exercising its discretion as to costs.18

16 Supreme Court Rules (NT) O 26 Pt 4;Supreme Court Rules 2000 (Tas) Pt 8 (Payment into and out of court). 17 Court Procedures Rules 2006 (ACT) Div 3.3.2 (Commercial Arbitration – Payment into Court). 18 Uniform Civil Procedure Rules 2005 (NSW) r 42.22.

27.17 The principal formalities for making and accepting a payment into court may be shortly stated. A defendant who makes a payment into court in the Northern Territory

Page 1052 or Tasmania must give notice of that fact to the plaintiff.19 The plaintiff may accept the payment in satisfaction of the claim within 14 days of receiving the defendant’s notice, or by the commencement of the trial (whichever is earlier).20 In the Northern Territory, it is possible for the payment and the acceptance to occur after the trial has commenced; in Tasmania, the payment must be made before the commencement of trial.21 The plaintiff must give notice of the acceptance, and upon doing so, can usually receive the payment without any further court order.22 The acceptance of the payment serves to stay the proceedings.23 A defendant who wishes to withdraw its payment, or to be reimbursed the payment in the event that it is not accepted, must usually make an application to the court.24 The rules expressly provide that a plaintiff who accepts the payment is entitled to its costs up to the date of service of the defendant’s notice (in the Northern Territory) or the date of acceptance (in Tasmania).25 There is no express provision in the rules for the position where the plaintiff fails to accept the payment, but then fails to beat the offer at trial.26 The general rule that the defendant should receive its costs is a guiding principle which was developed through the exercise of the court’s discretion as to costs.

19 Supreme Court Rules (NT) r 26.17; Supreme Court Rules 2000 (Tas) r 268(2)(a). 20 Supreme Court Rules (NT) r 26.21(1) and (2); Supreme Court Rules 2000 (Tas) r 269(1). 21 Supreme Court Rules (NT) r 26.21(3); Supreme Court Rules 2000 (Tas) r 268(2)(b). 22 Supreme Court Rules (NT) r 26.21(6) and (9), but cf r 26.23 as to when a further order is required; Supreme Court Rules 2000 (Tas) r 269(2)–(4). 23 Supreme Court Rules (NT) r 26.22(1); Supreme Court Rules 2000 (Tas) r 269(5). 24 Supreme Court Rules (NT) rr 26.20 and 26.24; Supreme Court Rules 2000 (Tas) r 276. 25 Supreme Court Rules (NT) r 26.26(1); Supreme Court Rules 2000 (Tas) r 269(6).

Page 7 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 26 Supreme Court Rules (NT) r 26.26(5) and (6) provide only that the court may take into account the fact and amount of any payment into court in exercising its discretion as to costs; Supreme Court Rules 2000 (Tas) r 276 .

27.18 Payments into court have several limitations. First, they are only available in respect of money claims. Secondly, they are only available to the defendant. Practically, a payment into court also had the effect that a defendant would be out of funds for at least some period of time, irrespective of whether the payment was accepted by the plaintiff.

27.19 The procedure for payments into court has now been replaced or supplemented by the use of Calderbank letters at common law, and a more flexible regime of ‘offers to settle’ or ‘offers of compromise’ under the rules.Offers under the rules will be referred to in this chapter as ‘offers to settle’.

Calderbank offer

27.20 A Calderbank offer27 or Calderbank letter is, simply, an offer to settle the proceedings on terms, which is made on the basis that, if it is not accepted and the offeree does not receive at trial a judgment which is more favourable than the offer, the offer will be relied on by the offeror on the question of costs. This idea has often been conveyed by the offeror expressing that the letter is ‘without prejudice save as

Page 1053 to costs’. This means that whilst the offer cannot be considered by the court for the purpose of the substantive proceedings, it may be taken into account by the court in exercising its discretion as to costs.28

27 So named because of the judgment in which the practice was first contemplated: Calderbank v Calderbank [1976] Fam 93

; [1975] 3 All ER 333 (CA)

.

28 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [213]–[215]

as to the utility of Calderbank offers.

27.21 The Calderbank letter strikes a balance between two competing policy objectives. On one hand, there is good reason to enable parties to engage in without prejudice communications for the purpose of furthering the prospects of settlement.29 It has been said that:30 … the practice of Calderbank letters is allowed because it is thought to facilitate the public policy objective of providing an incentive for the disputants to end their litigation as soon as possible. Furthermore, however, it can be seen as also influenced by the related public policy of discouraging wasteful and unreasonable behaviour by litigants.

On the other hand, if one party has refused a reasonable offer to settle, and has therefore forced its opponent (and the court) to spend further time and cost unnecessarily, there is an element of unfairness in allowing it to conceal that conduct from the court, particularly if the result at trial is less favourable to the party than the offer of settlement.

Page 8 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle The unfairness arises because, as is explained in Chapter 28, one important principle which informs the allocation of costs liability is that costs will often be borne by the party whose conduct necessitated the expenditure. For example, this principle justifies the usual rule that costs follow the event, as well as the exception that even a successful party may be deprived of its costs if its conduct has caused unnecessary delay and expense.31 The utility of a Calderbank letter, therefore, is that it enables the parties to engage in without prejudice communications concerning settlement, but also enables parties to rely on those communications — in particular, any refusal of a genuine attempt at settlement — as being relevant to the exercise of the court’s discretion as to costs.

29 See Chapter 17, especially 17.1–17.2. 30 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [14]

per Santow JA (Bryson and Stein JJA agreeing),

see also [12]–[13]; Commonwealth v Gretton [2008] NSWCA 117 at [41]–[42]

per Beazley JA (Mason P agreeing).

31 See Chapter 28, 28.56 and 28.76. As to the relevance of this principle in the Calderbank context, see Commonwealth v Gretton [2008] NSWCA 117 at [85]

per Beazley JA (Mason P agreeing), [121] per Hodgson JA (Mason P agreeing).

27.22 Where a Calderbank letter has been written, a court will take the letter into account in exercising its discretion as to costs. The final order is, of course, a matter for the court’s discretion. Nevertheless, certain principles, in the nature of guidelines rather than fixed rules,32 have been developed as to how the discretion will usually be exercised.33

Page 1054

32 See Chapter 28, 28.15–28.16 as to the distinction between guidelines and rules in the context of awarding costs. 33 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [8] see also Commonwealth v Gretton [2008] NSWCA 117 at [44]

per Santow JA (Bryson and Stein JJA agreeing); per Beazley JA (Mason P agreeing).

Without prejudice status

27.23 At common law, correspondence between parties which is expressed to be ‘without prejudice’ cannot be disclosed to the court; without prejudice communications are commonly made in the course of attempting settlement.34 Conversely, correspondence which is ‘without prejudice save as to costs’ may not be disclosed to the court during the substantive proceedings, but may be disclosed for the purpose of determining the appropriate order to be made in respect of costs. At common law, a letter which is simply described as being without prejudice will not be considered by the court at any stage of the proceedings.35

34 See generally Chapter 17. 35 See, for example, AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486 at 487 Hodgson J; M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [60]–[62]

per

per Gillard J; Perry v

Page 9 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle Comcare (2006)150 FCR 319; [2006] FCA 33 at [54] 475 at [47]

per Greenwood J; Kalenik v Apostolidis (No 3) [2009] VSC

per Hargrave J.

27.24 The court’s power to consider communications which have been made for the purpose of settlement has been modified by the Evidence Act in many jurisdictions.36 For example, s 131 of the Evidence Act 1995 (NSW) relevantly provides:37 131 Exclusion of evidence of settlement negotiations (1)

Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2)

Subsection (1) does not apply if: … (h) the communication or document is relevant to determining liability for costs …

The consequence of this is that any offer of settlement will be inadmissible in proceedings, but may be admissible in relation to the question of costs.38

36 See, for example, Lowe v Lowe (No 3) [2015] NSWSC 1800 at [66]–[69]

per Kunc J.

37 See also Evidence Act 1995 (Cth) s 131(1) and (2)(h); Evidence Act 2011 (ACT) s 131(1) and (2)(h); Evidence (National Uniform Legislation) Act (NT) s 131(1) and (2)(h); Evidence Act 2001 (Tas) s 131(1) and (2)(h); Evidence Act 2008 (Vic) s 131(1) and (2)(h). The South Australian legislation excludes evidence of settlement negotiations, but does not expressly provide for an exception where costs are at issue:Evidence Act 1929 (SA) s 67C. There is no equivalent provision in the Evidence Act 1977 (Qld) or the Evidence Act 1906 (WA). 38 Lowe v Lowe (No 3) [2015] NSWSC 1800 at [39]–[54]

per Kunc J.

27.25 Nevertheless, it must be emphasised that it remains the case that for a letter to operate as a Calderbank letter, it must indicate that the writer intends to rely on it for the purpose of costs.39 Common forms of words which are used to convey this meaning

Page 1055 are that the letter will be headed without prejudice save as to costs, or without prejudice except as to costs, although it must be noted that these are merely conventional headings, and may not of themselves indicate the necessary intention that the letter operate as a Calderbank letter.40 The significance of an offer being treated as a Calderbank offer is that it will be considered by the court in the exercise of its discretion as to costs, despite its without prejudice status. A Calderbank letter ought also to satisfy certain other requirements.

Page 10 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

39 AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486 at 487 Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [60]–[62] 150 FCR 319; [2006] FCA 33 at [54]

per Hodgson J; MT

per Gillard J; Perry v Comcare (2006)

per Greenwood J; Kalenik v Apostolidis (No 3) [2009] VSC 475 at [47]

per Hargrave J; Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [42] per Bathurst CJ (Beazley P, McColl and Emmett JJA agreeing), [57] per Barrett JA; Lowe v Lowe (No 3) [2015] NSWSC 1800 at [39(2)]

per Kunc J.

40 Ziliotto v Hakim [2013] NSWCA 359 at [127]–[129]

per Tobias AJA (Macfarlan JA agreeing).

Contents of Calderbank letter Identifying the letter as a Calderbank letter

27.26 In considering whether the offeree’s failure to accept an offer was reasonable, it is relevant for the court to take into account whether the letter stated on its face that the offer was made pursuant to the Calderbank principle.41 This may, however, be inferred;42 for example, where there has been a series of correspondence which discloses a clear intention by the offeror to make a Calderbank offer.43 On the other hand, no inference was drawn in a case where the offer in question was made during a mediation, and the court considered that it would be ‘exceptional if not unknown for offers made during a mediation to be intended to operate in that way’.44

41 Azzi v Volvo Car Australia Pty Ltd (Costs) (2007) 71 NSWLR 140; [2007] NSWSC 375 at [29]

per Brereton J.

42 Azzi v Volvo Car Australia Pty Ltd (Costs) (2007) 71 NSWLR 140; [2007] NSWSC 375 at [29]

per Brereton J.

43 Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower (No 2) [2007] NSWSC 25 at [67]

per Hoeben J.

44 Azzi v Volvo Car Australia Pty Ltd (Costs) (2007) 71 NSWLR 140; [2007] NSWSC 375 at [29]–[30]

per Brereton J.

Warning the offeree that an application for indemnity costs will be made

27.27 The inclusion or omission of a warning that the Calderbank offer will be relied on in support of an application for indemnity costs may be relevant to the discretion whether to award indemnity costs, although it will not be determinative.45 In Davis v Swift,46 an application for indemnity costs was refused because the Calderbank letter

Page 1056 did not foreshadow that such an application would be made, in circumstances where the offeror could have made an offer under the rules, and indemnity costs would have been the default order had such an offer been made. On the other hand, where a series of letters were headed ‘without prejudice except as to costs’, the court has accepted that the legal representatives of the offeree would have realised that an application for indemnity costs would be the likely consequence.47 And the omission of any reference to an application for indemnity costs will not be significant where there is a chain of correspondence which makes clear that the parties were making offers and counter-offers

Page 11 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle in reliance on the Calderbank principles.48 However, it is advisable to make express the intention to ask for indemnity costs in the event that the offer is not beaten.

45 Bulsey v Queensland [2016] QCA 158 at [54] per McMeekin J (Fraser JA and Atkinson J agreeing). As to the general principle that applications for indemnity costs ought to be foreshadowed by the party who makes them, see Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 at 249–59 per Kirby P (where indemnity costs were sought following a late abandonment of an appeal). Note that this is not an inflexible rule: see Horseshoe Pastoral Co Pty Ltd v Murray Smith t/as South Coast Tile and Slate Co [1995] NSWCA 200 per Kirby P (Clarke and Powell JJA agreeing). 46 Davis v Swift (No 2) [2015] NSWCA 137 at [23]

per Meagher JA (Leeming JA and Adamson J agreeing).

47 Assaf v Skalkos [2000] NSWSC 935 at [101]–[111]

, especially [110] per Carruthers AJ.

48 Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower (No 2) [2007] NSWSC 25 at [67]

per Hoeben J.

Sufficient clarity

27.28 A Calderbank letter must be sufficiently clear to enable the offeree to understand its effect.49 There is authority that an offer of an amount of money ‘inclusive as to costs’ will not qualify as a Calderbank letter. This is because such an offer is said to be insufficiently precise, in that the offeree may not be able to identify what quantum has been offered in settlement of the claim.50 The better view is that there is no fixed rule to that effect. However, offers which are inclusive of costs can be inherently difficult for the offeree to assess. It may also be difficult for the court to determine whether the offer was bettered.This is a matter to which the court will have regard in determining the reasonableness of the offeree’s failure to accept, which is discussed later in this chapter.51 Accordingly, an offeror ought to exercise care in making an offer which is inclusive of costs, because on a later application for indemnity costs it may not be able to discharge its onus of showing that the offeree’s refusal was unreasonable.The practice has therefore been discouraged by the courts.52 Much may depend, though, on the offer and the time at which it is made. For example, if the offer is expressed to be inclusive of the offeree’s costs, the offeree ought to have no difficulty in assessing the value of the offer. Thus,there may be no uncertainty if the defendant is making an offer to the plaintiff on the basis that the defendant will pay the plaintiff an amount which is inclusive of costs, and also bear its own costs.53

Page 1057

49 Grbavac v Hart [1997] 1 VR 154 at 155,160–1

.

50 See Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [100]–[105] there cited.

per McColl JA and the cases

51 See 27.37–27.43 below. 52 See the discussion of the strands of authority and the policy reasons in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [4]–[7] per Beazley JA, [100]–[116] per McColl JA; cf at [136]–[145] per Basten JA; see also Holloway Nominees (Qld) Pty Ltd v George (No 2) [2008] QSC 71 at [7]–[10] per Martin J; Smith v Starke, Re Action Paintball Games Pty Ltd (in liq)(No 3) [2016] FCA 40 at [19] per Gleeson J. On the other hand, it has been suggested that there are benefits to offers which are inclusive of costs: see M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [118]–[126]

per Gillard J.

Page 12 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 53 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [136]–[145] Australasia Pty Ltd v GRD Group NT Pty Ltd [2012] NTSC 93 at [34]–[35]

per Basten JA; Veetemp

per Riley CJ.

27.29 In circumstances where a Calderbank offer was expressed to require the offeree to pay costs pursuant to an interlocutory costs order in favour of the offeror, the fact that the offeror had failed to disclose the costs it had incurred was considered to be ‘relevant to the question whether the offer was a genuine offer of compromise’.54 In that case, the costs had not been taxed, but the offeror had made a claim which was described by the court as seeming to be ‘extraordinarily high’; the likely claim for costs was a matter which was capable of being calculated only by the offeror; and there was evidence that the offeree regarded the unknown interlocutory costs as a significant barrier to acceptance of the offer.55

54 Commonwealth v Gretton [2008] NSWCA 117 at [99]–[100],[103] , and see [9] as to the terms of the offer per Beazley JA (Mason P agreeing). In that case, the costs incurred at the interlocutory hearing were described as being in an amount which seemed to the court ‘extraordinarily high’: at [98]. 55 Commonwealth v Gretton [2008] NSWCA 117 at [98]–[99]

, see also [96], [101]–[103].

27.30 If a Calderbank offer is accepted, its terms operate as a contract between the offeror and offeree. However, courts appear to place little weight on the ‘technical’ question whether the terms are, on their face, such as could give rise to a binding contract. Rather, the focus of the court’s inquiry is whether the offer constituted a genuine offer of settlement, and was expressed with sufficient clarity to enable the offeree to assess it.56

56 Whittle v Filaria Pty Ltd [2004] ACTSC 131 at [23]–[24] at [11],[22]–[30]

per Wilson J; Chan v Acres (No 3) [2016] NSWSC 1389 at [119]–[123]

Pearson v Williams [2002] VSC 30 at [15] [37]

per Crispin J; Dibbs v Emirates (No 2) [2015] NSWSC 1786 per McDougall J. But cf

per Ashley J; Graham Kemp v Michael J Ryan [2012] ACTCA 12 at [36]–

per Penfold, Burns and Marshall JJ.

Real element of compromise

27.31 In order to enliven the costs consequences, it is necessary that the Calderbank offer entail a ‘real element of compromise’.57 A particular question arises, therefore, as to the circumstances in which a ‘walk away’ offer will enliven the costs consequences of a Calderbank offer.

57 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [23]

per Santow JA (Bryson and Stein JJA agreeing).

Page 13 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

27.32 A ‘walk away’ offer, as the name suggests, is one in which the offeror proposes that the parties simply discontinue the litigation, each to bear their own costs. Although there have been some suggestions that a walk away offer cannot constitute a genuine offer of compromise,58 the better view, which is now widely accepted, is that it might be, provided that it is ‘a genuine attempt to reach a negotiated settlement, rather than merely to trigger any costs sanctions’.59 Taheri v Vitek (No 2)60 well illustrates the point. Three ‘walk away’ offers were made. The first two ‘invited capitulation’ by the offeree, and were made at a time when the offeror had incurred ‘virtually no costs’.61

Page 1058 The New South Wales Court of Appeal held that these offers could not lead to the costs consequences prescribed by the Uniform Civil Procedure Rules, because the only compromise offered was that the offeror bear its own,limited, costs.62 Although the offers were made under the rules, the Court of Appeal observed that the same result would apply if they had been Calderbank offers.63 Conversely, by the time of the third offer, the offeror had ‘undoubtedly incurred substantial costs’, and the offeree was aware of what the offeror’s submissions would be; it therefore entailed ‘a significant amount of compromise, and it was unreasonable for the [offeree] not to accept it’.64 The court awarded the offeror indemnity costs from the date of this third offer.65

58 Some examples of earlier, conflicting judgments in this area are considered in Leichhardt Municipal Council v Green [2004] NSWCA 341 at [31]–[36]

per Santow JA (Bryson and Stein JJA agreeing).

59 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [39] 60 [2014] NSWCA 344

per Santow JA (Bryson and Stein JJA agreeing).

.

61 Taheri v Vitek (No 2) [2014] NSWCA 344 at [8]–[9]

(per curiam).

62 Taheri v Vitek (No 2) [2014] NSWCA 344 at [10]

(per curiam).

63 Taheri v Vitek (No 2) [2014] NSWCA 344 at [11]

(per curiam).

64 Taheri v Vitek (No 2) [2014] NSWCA 344 at [12]–[13] 65 Taheri v Vitek (No 2) [2014] NSWCA 344 at [14]

(per curiam).

, and see [12] as to the date of the offer (per curiam).

27.33 It has been suggested that in assessing whether an offer represents a genuine compromise, the court ought to take into account the fact that a defendant making a Calderbank offer is in a different position to a plaintiff. A plaintiff offering to settle for, say, half of its claimed damages, may have little trouble persuading a court that its offer included a real element of compromise. A defendant, though, is in a more difficult position, as was explained by Santow JA in Leichhardt Municipal Council v Green:66 … a defendant by definition is not the claiming party, and thus is not before the Court voluntarily. If it reasonably disputes liability and has a firm belief in the strength of its case, the best solution it can hope for — that the claim is dismissed — is not a monetary one. It will in economic terms be no better or worse off for its victory by way of successful defence, costs aside. Thus, unlike a plaintiff, it cannot discount its optimum return by way of compromise.

But this consideration ought not to be given undue weight. In truth, the position of plaintiffs and defendants is symmetric. None can be made to litigate against their wish. A plaintiff who has a legitimate and unanswerable claim

Page 14 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle is not obliged to institute legal proceedings but is free to forgo its entitlement. The same is true of a defendant who has a legitimate and unanswerable defence to an unfounded claim; like the plaintiff, the defendant may choose not to litigate and thereby suffer a default judgment. In each case, declining to prosecute one’s right in legal proceedings leads to the loss of the right. It follows that just as a plaintiff can reduce the amount to which it believed it is entitled in order to avoid litigation,so the defendant can offer to pay more than it believes it owes to the same end. Each stands to reap the same costs benefit, should the other refuse a Calderbank offer which turns out to have been reasonable.

66 [2004] NSWCA 341 at [25]–[26]

per Santow JA (Bryson and Stein JJA agreeing).

Consequences of failure to satisfy these requirements

27.34 A failure to satisfy these various requirements may not be automatically fatal to the offeror’s application for indemnity costs (or costs on some other basis). However, they will be taken into account in assessing whether the offeree’s failure to accept the offer was reasonable. For example, it may be reasonable for an offeree not to accept

Page 1059 an offer if it was open only for a short period of time, or if it was expressed in unclear terms such that it was difficult for the offeree to assess its effect.

27.35 There are occasions when a party’s offer will fail to qualify as a Calderbank letter; for example, because it purported to be an offer under the rules, but was non-compliant, and failed to indicate a ‘secondary or alternative significance’as a Calderbank offer.67 The consequence of this is that there are three types of offer which may be taken into account in the exercise of the court’s discretion as to costs: offers to settle under the rules, Calderbank offers, and other offers (that is, offers which are not made pursuant to the rules, and do not qualify as Calderbank offers). In Old v McInnes, the majority view was that an offer which did not fall inside the rules, and did not qualify as a Calderbank letter,ought not to be considered by the court in the exercise of its discretion as to costs.68 But in Whitney v Dream Developments Pty Ltd, Bathurst CJ, having considered the Calderbank offer, signalled in obiter a departure from that view, observing that the parties’ conduct in the litigation— ‘including the making of open offers’ — could be relevant to the exercise of the costs discretion.69 The prevailing view now seems to be that offers may be taken into account in the exercise of the court’s discretion to make an order other than that costs follow the event, even where they fall outside both the rules and the Calderbank principles.70 Crucially, however, in such a case indemnity costs will not be available.71

67 Ziliotto v Hakim [2013] NSWCA 35 at [127]–[129]

per Tobias AJA (Macfarlan JA agreeing); Whitney v Dream

Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [59] JA agreeing).

per Barrett JA (Beazley P and McColl

68 Old v McInnes and Hodgkinson [2011] NSWCA 410 at [105]–[108],[117]–[118] agreeing); but cf at [32]–[34] per Beazley JA, in dissent on this point.

per Meagher JA (Giles JA

69 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [43] (Beazley P and McColl JA agreeing). 70 Ziliotto v Hakim [2013] NSWCA 359 at [130]–[134]

per Tobias AJA (Macfarlan JA agreeing).

per Bathurst CJ

Page 15 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 71 Ziliotto v Hakim [2013] NSWCA 359 at [145]

per Tobias AJA (Macfarlan JA agreeing).

Costs consequences of failing to accept a Calderbank offer

27.36 The usual position is that a party who fails to accept a genuine offer of settlement, and then fails to achieve a better result at trial, will be required to pay the costs of its opponent from the date on which the offer was made. This is so even though that party was successful in the litigation, in that the judgment was in its favour. In some circumstances, the order for costs may be on an indemnity basis. An order for indemnity costs will often be appropriate where the offeree’s rejection or failure to accept the offer was unreasonable in the circumstances which existed at the time of the offer.

27.37 An offeree’s failure to accept a Calderbank offer does not mean that the offeror is presumptively entitled to its costs, or to an order for indemnity costs.72 Rather:73

Page 1060   … the question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure …

72 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236 at 239 [2003] NSWCA 258 at [7]–[9]

per Lindgren J; Jones v Bradley (No 2)

(per curiam); Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority

(No 2) (2005) 13 VR 435; [2005] VSCA 298 at [18]–[19]

(per curiam).

73 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37]

per Giles JA.

27.38 Where an offeree unreasonably rejects a Calderbank offer, the court is likely to make an order for indemnity costs in favour of the offeror from the time of the offer.74 The point was expressed succinctly by the High Court in Stewart v Atco Controls Pty Ltd (in liq):75 This Court has a general discretion as to costs. The non-acceptance of a Calderbank offer is a factor, in some cases a strong factor, to be taken into account on an application for indemnity costs.

Page 16 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 74 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [217]–[218] 75 (2014) 252 CLR 331; [2014] HCA 31 at [4]

.

(per curiam).

27.39 An important factor in the exercise of the discretion to award indemnity costs is whether the failure to accept the Calderbank offer was unreasonable.76 It has been said that the questions for the court on an application for indemnity costs arising from a rejected Calderbank offer are whether there was a genuine offer of compromise, and whether it was unreasonable for the offeree not to accept it.77 The touchstone for assessing the offeree’s failure to accept is whether, in the circumstances, it was such as to justify the departure from the ordinary rules as to costs.78 The onus is on the offeror to establish that the court should depart from the ordinary rules as to costs.79

76 In identifying the circumstances which may give rise to an order for indemnity costs more generally, Sheppard J in the often-cited judgment of Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 imprudent refusal of an offer to compromise’. 77 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8] JJA agreeing).

per Basten JA (McColl and Campbell

78 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37] Bradley (No 2) [2003] NSWCA 258 at [7]–[9]

listed ‘an

per Giles JA; Jones v

(per curiam); Hazeldene’s Chicken Farm Pty Ltd v Victorian Work

Cover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [18]–[19]

(per curiam); Commonwealth v Gretton

[2008] NSWCA 117 at [14],[43] per Beazley JA (Mason P agreeing), [114] per Hodgson JA (Mason P agreeing) and [117] per Hodgson JA (Mason P agreeing). 79 Commonwealth v Gretton [2008] NSWCA 117 at [46],[74]

per Beazley JA (Mason P agreeing).

27.40 Merely rejecting an offer is not unreasonable.80 In determining whether a failure to accept was reasonable, the Victorian Court of Appeal in the important judgment of Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)81 proposed a non-exhaustive list of factors which would be relevant to the exercise of the discretion. Their Honours said:82 … a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters: (a)

the stage of the proceeding at which the offer was received;

(b)

the time allowed to the offeree to consider the offer;

(c)

the extent of the compromise offered;

(d)

the offeree’s prospects of success, assessed as at the date of the offer;

Page 1061  

Page 17 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle (e)

the clarity with which the terms of the offer were expressed;

(f)

whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.

These factors have been widely accepted across Australia as relevant to the exercise of the discretion.83 It can be observed that all of the elements identified by the Court of Appeal could be said to be relevant not only to the question of reasonableness of refusal, but also to the question whether the Calderbank letter represented a genuine offer of compromise in the first place.

80 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [217]–[218] 81 (2005) 13 VR 435; [2005] VSCA 298

.

.

82 (2005) 13 VR 435; [2005] VSCA 298 at [25]

(per curiam).

83 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [12] per Basten JA (McColl and Campbell JJA agreeing); PRO Property Pty Ltd as Trustee for Acehigh Adelaide Trust t/as Coldwell Banker PRO Property v Orchard Holdings Pty Ltd [2013] WASCA 283 at [50] per Newnes JA (Buss and Murphy JJA agreeing); J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23 at [6] (per curiam); Veda Advantage Ltd v Malouf Group Enterprises Pty Ltd (No 2) [2016] FCA 470 at [31] 74 at [25]

per Katzmann J; Szymanska v Szymanski (No 3) [2016] SASC

per Blue J.

27.41 In respect of appeal costs, though, further factors may be relevant. In particular, the court may consider whether the appeal merely involved the application of established law to the facts, or whether, on the other hand, application of the usual Calderbank criteria would ‘stultify the development of the law’ by encouraging settlement.84 Even at first instance, the public interest in promoting settlement may be outweighed by other factors. As Mansfield J explained (in a case involving the Australian Competition and Consumer Commission (ACCC), a public authority):85 There may be circumstances where compromise is not appropriate, having regard to the nature of the allegations made. For instance, in the face of an allegation of serious fraud or dishonesty, a party may properly seek the vindication which a favourable court determination will recognise. Much depends on the particular circumstances. There may be circumstances, in the case of a public regulator such as the ACCC, where the particular issues are of such importance that it is proper to seek a judicial determination of them. Such cases will necessarily not be common. The ACCC is, like any other party, obliged to seek sensible resolution of disputes.

84 Comgroup Supplies Pty Ltd v Products For Industry Pty Ltd [2016] QCA 130 at [8] Queensland [2016] QCA 158 at [76]–[78]

(per curiam); Bulsey v

per McMeekin J (Fraser JA and Atkinson J agreeing).

85 Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433 at [10] per Mansfield J.

27.42

Page 18 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle In Hazeldene, their Honours rejected the suggestion that a party making a Calderbank offer ought not to receive costs unless its letter identified ‘with some reasonable specificity’ the reasons why the offeree ought to accept (such as that the offeree could not reasonably expect to beat the offer at trial).86 Nevertheless, it seems that it will be relevant, for the purpose of assessing reasonableness, for the court to consider the extent to which the weaknesses in the offeree’s case were apparent at the time of the offer, whether that is through the Calderbank letter itself, or through other correspondence or court documents.87

Page 1062

86 (2005) 13 VR 435; [2005] VSCA 298 at [26]

(per curiam).

87 (2005) 13 VR 435; [2005] VSCA 298 at [27]

(per curiam), citing with approval Aljade & MKIC v OCBC [2004] VSC

351 at [87]

per Redlich J.

27.43 It has been held that it is unreasonable not to accept an offer where the offeree could only succeed on the basis of false evidence, and the offeror has foreshadowed that the credibility of witnesses will be in issue.88 It may be relevant to the discretion to award indemnity costs whether the Calderbank letter foreshadowed that the writer would seek indemnity costs in the event of the offer not being accepted.89

88 Blagojevch v Australian Industrial Relations Commission (2000) 98 FCR 45; [2000] FCA 483 Commonwealth v Gretton [2008] NSWCA 117 at [50]–[54],[66] 89 Bulsey v Queensland [2016] QCA 158 at [54]

, explained in

per Beazley JA (Mason P agreeing).

per McMeekin J (Fraser JA and Atkinson J agreeing).

27.44 Calderbank letters have two principal advantages over the system of payment into court. First, they may be written by either party, whereas payments into court were available only to the defendant. Secondly, they may be made in any proceedings,unlike payments into court, which are appropriate only in respect of money claims.90

90 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 at [213]

(per curiam).

27.45 Nevertheless, the advantages of the Calderbank letter are now less marked, because of the availability in all jurisdictions of rule-based regimes for ‘offers to settle’ or ‘offers of compromise’. In short, the rules prescribe how an offer is to be made under the rules, and will identify the costs consequences which will usually follow in the event that such an offer is accepted or not accepted.

Page 19 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

Offers to settle under the rules

27.46 As noted earlier, two principal difficulties of the system of payments into court were that it was available only to defendants, and that it involved a cash deposit. However, it is also important to note a further feature of the payment into court system. The general rule was that if the plaintiff failed to better the offer — that is, if the judgment in the proceedings were for a sum less than the payment into court — then the court would, in the exercise of its discretion as to costs, award costs to the defendant, usually from the date of payment into court. However, this was the outcome of the exercise of the court’s discretion. The rules of court did not prescribe this outcome; nor did they even identify this outcome as the default position.

27.47 In all jurisdictions, the rules of civil procedure now make provision for offers to settle, or offers of compromise, to be made under the rules. The term ‘offers to settle’ will be used here to refer to all such offers, although the terminology varies. In short, the rules prescribe a procedure for making offers, which may be followed by either the plaintiff or the defendant.91 Further, the rules specify the costs consequences of accepting the offer, as well as the costs consequences of not accepting the offer. Whilst the court of course retains a discretion to make a different order as to costs, the fact

Page 1063 that the rules prescribe the usual position creates greater certainty concerning the likely consequences of failing to accept an offer.92

91 There is an important exception to this. In the Northern Territory, the rules provide that an offer of compromise may be made by either a plaintiff or a defendant only where the plaintiff has made a claim for damages for or arising out of death or bodily injury: Supreme Court Rules (NT) r 26.02(1). In other claims, only the defendant may make an offer of compromise: Supreme Court Rules (NT) r 26.02(2). However, in those other claims, a plaintiff may nevertheless make an offer in writing to the defendant to compromise the claim. If such an offer has not been accepted at the time of judgment, there are separate rules specifying the costs consequences: Supreme Court Rules (NT) r 26.11. 92 See, for example, Shaw v Jarldorn (1999) 76 SASR 28 at [34]–[39] lead to a different order.

per Perry J as to the circumstances which might

27.48 The purpose of offers to settle under the rules, and the key principles concerning the application of the rules, was set out by Mason P (with whom Sheller JA agreed) in Morgan v Johnson, who extracted the following summary from the leading cases:93 (1)

The purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation.

(2)

The aim is to oblige the offeree to give serious thought to the risk involved in non-acceptance.

(3)

The prima facie consequence of non-acceptance will be that the rule will be enforced against the non-accepting party. This is because, from the time of non-acceptance ‘notionally the real cause and occasion of the litigation is the attitude adopted by [the party] which has rejected the compromise’.

Page 20 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle (4)

Lying behind the rule is the common knowledge that ‘litigation is inescapably chancy’. For this reason, the ordinary provision is expected to apply in the ordinary case. The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule. …

(5)

The discretion to displace the rule is a judicial one, requiring the private and public purposes of the rule to be borne in mind. Reasons must be given for ‘otherwise ordering’.

93 (1998) 44 NSWLR 578 at 581–2 per Doyle CJ, [34]–[39] per Perry J.

(citations omitted). See also Shaw v Jarldorn (1999) 76 SASR 28 at [3]–[10]

Formal requirements for offers to settle under the rules

27.49 The formal requirements for offers to settle differ between jurisdictions. Consequently, this section does not purport to be exhaustive in identifying the features of a valid offer under the rules, and care should be taken to ensure compliance with the precise requirements for the jurisdiction. Rather, this section identifies some of the most common requirements.

27.50 Offers to settle may, in most jurisdictions, be made at any time before judgment is delivered in the proceedings.94 They must be in writing (sometimes in the prescribed

Page 1064 court form), and must often be signed too.95 They must usually state that they are made pursuant to the rules.96 The rules usually prescribe that offers to settle must also identify the claim or claims to which they relate.97

94 Federal Court Rules 2011 (Cth) r 25.05(1); Supreme Court Rules (NT) r 26.03(1), although note that in many proceedings, the defendant may serve an offer on the plaintiff, but the plaintiff may not serve an offer on the defendant: see r 26.02(2); Uniform Civil Procedure Rules 1999 (Qld) r 354; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(1); Rules of the Supreme Court 1971 (WA) O 24A r 3(1) and 3(8), although note that different provision is made in r 3(8)(a) for trial by jury. In the Australian Capital Territory and New South Wales, no express provision to this effect is made, but that is the natural consequence of the absence of any time restriction in the rules. There are two exceptions. In Tasmania, the rules provide that offers of compromise may be made at any time before the commencement of the trial: Supreme Court Rules 2000 (Tas) r 280(6). In South Australia, the rules do not expressly limit the time in which an offer may be made. But the costs consequences of failing to accept an offer are only enlivened if the offer was filed at least 21 days before the trial, unless the court has granted an extension: Supreme Court Civil Rules 2006 (SA) r 188F(1)(e). 95 Federal Court Rules 2011 (Cth) rr 25.01(1) and 25.02; Court Procedures Rules 2006 (ACT) r 1002(1); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(1); Supreme Court Rules(NT) r 26.02(3)(a); Uniform Civil Procedure Rules 1999 (Qld) r 353(3); Supreme Court Civil Rules 2006 (SA) r 187(1) and (4)(a); Supreme Court Rules 2000 (Tas) r 281(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.02(3)(a); Rules of the Supreme Court 1971 (WA) O 24A r 3A(2)(a). 96 Federal Court Rules 2011 (Cth) r 25.01(1) and Form 45; Court Procedures Rules 2006 (ACT) r 1002(2)(d); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(d); Supreme Court Rules (NT) r 26.02(3)(b); Uniform Civil Procedure Rules 1999 (Qld) r 353(3); Supreme Court Civil Rules 2006 (SA) r 187(4)(b); Supreme Court Rules 2000 (Tas) r 281(b)(iv); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.02(3)(b); Rules of the Supreme Court 1971 (WA) O 24A r 3A(2)(b).

Page 21 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 97 Federal Court Rules 2011 (Cth) r 25.01(1) and Form 45; Court Procedures Rules 2006 (ACT) r 1002(2)(a)(i); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(a)(i); Supreme Court Civil Rules 2006 (SA) r 187(4)(c) and (d); Supreme Court Rules 2000 (Tas) r 281(d).

27.51 In the Australian Capital Territory and New South Wales, offers to settle may relate to only part of a claim, and the offeror must also identify the part of the claim to which the offer relates.98 However, if the offer relates to part only of the proceedings, the offer must also identify whether the offeror intends to concede or contest the remainder of the proceedings.99

98 Court Procedures Rules 2006 (ACT) r 1002(1); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(1). 99 Court Procedures Rules 2006 (ACT) r 1002(2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(b).

27.52 The rules of court also provide that the offeror may indicate a period within which the offer may be accepted; in some jurisdictions, the offeror must do so.100 Further, the rules stipulate the minimum period for acceptance which may be specified by the offeror.101

100 Federal Court Rules 2011 (Cth) r 25.05(3); Court Procedures Rules 2006 (ACT) r 1002(2)(e); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(f); Supreme Court Rules (NT) r 26.03(3) ; Uniform Civil Procedure Rules 1999 (Qld) r 355(1); Supreme Court Civil Rules 2006 (SA) r 187(6)(c); Supreme Court Rules 2000 (Tas) r 280(7); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(3); Rules of the Supreme Court 1971 (WA) O 24A r 3(3). 101 Federal Court Rules 2011 (Cth) r 25.05(3); Court Procedures Rules 2006 (ACT) r 1002(5); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(5); Supreme Court Rules (NT) r 26.03(3); Uniform Civil Procedure Rules 1999 (Qld) r 355(1); Supreme Court Civil Rules 2006 (SA) r 187(6)(c); Supreme Court Rules 2000 (Tas) r 280(7); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(3); Rules of the Supreme Court 1971 (WA) O 24A r 3(3).

27.53 In some jurisdictions, special provision is made for offers in proceedings which involve several defendants. In the Federal Court, Victoria and Western Australia, the consequences of failing to comply with an accepted offer do not apply in certain circumstances.102 In the Northern Territory and Tasmania, the costs consequences of failing to accept an offer do not apply in certain circumstances.103 In Queensland, restrictions are placed on the circumstances in which an offer may be made to or by

Page 1065 only one defendant.104 Further, in some jurisdictions, special provision is made for offers in proceedings involving secondary claims.105

102 Federal Court Rules 2011 (Cth) r 25.11; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07.2; Rules of the Supreme Court 1971 (WA) O 24A r 9. 103 Supreme Court Rules (NT) r 26.09; Supreme Court Rules 2000 (Tas) r 290.

Page 22 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 104 Uniform Civil Procedure Rules 1999 (Qld) r 363. 105 Federal Court Rules 2011 (Cth) r 25.13; Supreme Court Rules (NT) r 26.10; Uniform Civil Procedure Rules 1999 (Qld) r 364; Supreme Court Rules 2000 (Tas) r 291; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.10.

Content of an offer to settle under the rules

27.54 The offer to settle must identify the terms on which the settlement will take place.106 In the Australian Capital Territory and New South Wales, it must identify any orders which are proposed for the disposal of the claim, including the amount of any monetary judgment if that is one of the orders.107

106 Federal Court Rules 2011 (Cth) r 25.01(1) and Form 45; Court Procedures Rules 2006 (ACT) r 1002(1); Uniform Civil Procedure Rules 2005(NSW) r 20.26(1); Supreme Court Rules (NT) r 26.02(1) and (2); Uniform Civil Procedure Rules 1999 (Qld) r 353(1); Supreme Court Civil Rules 2006 (SA) r 187(2); Supreme Court Rules 2000 (Tas) r 280(3) and (4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.02(1); Rules of the Supreme Court 1971 (WA) O 24A r 1. 107 Court Procedures Rules 2006 (ACT) r 1002(2)(a)(ii); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(a)(ii).

27.55 An offer of compromise must contain ‘some real element of compromise’ in order to satisfy the requirements of the rules.108 The question whether such an element of compromise is present is contingent on the circumstances. It has been said that:109 Even where the offeror is completely successful in litigation, an offer requiring complete capitulation will not generally satisfy this requirement. However, a ‘walk away’ offer may be genuine where the offer involves the sacrifice of substantial recoverable costs.

108 Tickell v Trifleska Pty Ltd (1999) 25 NSWLR 353 at 355; Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76

.

109 Commonwealth Bank of Australia v Dalle Cort [2015] QSC 41 at [8] per Carmody CJ.

27.56 A walk away offer made under the rules may nevertheless constitute a genuine attempt at compromise; for example, where the litigation is well advanced and the parties have therefore incurred significant costs.110 But where an offer is made early, and is ‘in substance an invitation to surrender’, it might only trigger the costs consequences if it can be said that the offeree’s case ‘approach[es] something of the character of being frivolous or vexatious’.111

110 Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803 at [12]–[14] Finkelstein J.

per

Page 23 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 111 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [31]

(per curiam).

27.57 The nature of the claim may be relevant to the question whether there is a genuine offer of compromise. In Regency Media Pty Ltd v AAV Australia Pty Ltd, it was explained that the significance of a compromise may differ between a contractual claim (which was at issue there), and a personal injury claim, for example:112 As is usually the case in proceedings turning on an issue of contractual interpretation, this was an all or nothing case. The claims did not involve a process of evaluation or

Page 1066   assessment in which the end result could vary over a range. Either one party or the other party was correct. Whilst a marginal difference between the offer and the result may constitute a real and genuine offer of compromise in a personal injury context, that is not generally true in an all or nothing case.

112 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [29]

, and see also [30]–[33] (per curiam).

27.58 One difficult question is how to deal with offers to settle which are inclusive of costs. This problem has been discussed already in the context of Calderbank letters;113 the same problem arises for offers to settle under the rules. The problem with offers which are expressed to be inclusive of costs may be explained in short terms. If an offer is not accepted, a court may later be called upon to determine whether the judgment was more or less advantageous than the offer. If the offer is inclusive of costs, this task becomes far more difficult. Further, offers which are inclusive of the offeror’s costs may also be difficult for the offeree to assess.114

113 See 27.28–27.29 above. 114 See, for example, Commonwealth v Gretton [2008] NSWCA 117 at [97]–[100] which dealt with Calderbank letters.

per Beazley JA (Mason P agreeing),

27.59 In the context of offers to settle under the rules, the rules provide a divergent range of responses. The remainder of this section deals with the position under the current rules; however, it should be noted that until 2013, the rules in New South Wales and Victoria provided that offers to settle under the rules were required to be exclusive as to costs.

Page 24 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

27.60 One solution, adopted in the Australian Capital Territory and New South Wales, is to create a general rule that an offer to settle must ‘not include an amount for costs and must not be expressed to be inclusive of costs’,115 but then to provide a limited range of terms concerning costs which may be included in an offer to settle. To this end, the New South Wales rules provide that:116 An offer under this rule may propose: (a)

a judgment in favour of the defendant: (i) with no order as to costs, or (ii) despite [the general rule], with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff’s costs, or

(b)

that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or

(c)

that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer.

These permissible terms avoid or mitigate the problem described above in a variety of ways. Term (a)(i) does not entail any assessment of costs by the court, and requires the offeree to consider only its own costs to date in determining the net effect of the

Page 1067 offer.117 Term (a)(ii) provides a specified sum for costs. In the event that the offer is not accepted, the court is not called upon to make any comparison between a judgment sum and an offer which is inclusive of costs; the problem described above therefore does not arise. Further, both the offeree and offeror can easily calculate the net effect of the offer because the provision for costs is fixed as to amount. Terms (b) and (c) make provision for costs, but not in terms which are inclusive;the court may therefore compare the quantum of the offer to settle against the judgment actually obtained. The offeree may also assess the net effect of the offer, because it will know or can determine its own costs incurred to the date of the offer.The Tasmanian rules adopt a similar approach: the rules identify a limited range of permissible terms concerning costs, and require that an offer include one of them.118 Each of the permissible terms enables a comparison to be made between the terms of the offer and the terms of any judgment.

115 This is the terminology in the Uniform Civil Procedure Rules 2005 (NSW) r 20.26(2)(c); the equivalent rule in the Australian Capital Territory is in substantially the same terms: Court Procedures Rules 2006 (ACT) r 1002(2)(c). 116 Uniform Civil Procedure Rules 2005 (NSW) r 20.26(3); the equivalent rule in the Australian Capital Territory is in substantially the same terms: Court Procedures Rules 2006 (ACT) r 1002(3). 117 As was explained by Basten JA in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at[143] , the problem identified above does not arise because the offeree has only to ask its own lawyers what the costs are in order to assess the quantum of the offer. 118 Supreme Court Rules 2000 (Tas) r 281(c).

27.61 The rules in the Northern Territory and Western Australia make provision as to the usual costs consequences in the event that an offer is accepted: that the defendant will pay the plaintiff ’s costs up to the date of the offer, unless the court otherwise orders.119 The rules then go on to provide if an offer to settle ‘contains a term which purports to negative or limit the operation’ of those costs consequences, ‘that term shall be of no effect for any purpose’ under

Page 25 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle the rules.120 The effect of these provisions is that offers to settle must be exclusive of costs. Thus, where an offer is not accepted, the problem of inclusive offers will not arise.

119 Supreme Court Rules (NT) r 26.03(7); Rules of the Supreme Court 1971 (WA) O 24A r 10(1). 120 Supreme Court Rules (NT) r 26.03(8); Rules of the Supreme Court 1971 (WA) O 24A r 10(2).

27.62 Conversely, in the Federal Court, the rules provide only that the notice containing the offer to compromise must identify whether ‘the offer is inclusive of costs’ or ‘costs are in addition to the offer’.121 The Victorian rules are to the same effect.122 The rules in Queensland and South Australia contain no restriction on the ability of parties to make offers which are inclusive of costs.123

121 Federal Court Rules 2011 (Cth) r 25.03(1). 122 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.02(4). 123 Supreme Court Civil Rules 2006 (SA) r 187(6)(b).

27.63 There is little authority addressing how the court in these jurisdictions ought to compare the offer with the judgment ultimately obtained.124 There is some authority for the proposition that where there is only a relatively small difference between the quantum of the judgment and the offer, and the action has been ‘relatively lengthy and

Page 1068 expensive’,the court may conclude that the judgment was not more favourable, even in the absence of evidence concerning costs.125

124 In Smith v Jovanoska (No 2) [2013] VSC 714 , an offer had been made inclusive of costs; whilst the court considered the question whether it was unreasonable not to accept it in the circumstances, the problem of difficulty of comparison between the offer and the judgment was not addressed. It should be noted that the Victorian rule was introduced only in 2013, prior to which offers could not be inclusive of costs. 125 Borg v Northern Rivers Finance [2004] QSC 163 at [11]

per MacKenzie J.

Effect of failure to comply with rules

27.64 An offer purportedly made under the rules, which does not strictly comply, may nevertheless be treated as an offer under the rules for the purpose of enlivening the default costs consequences. The question whether a noncompliant offer will nevertheless be treated as an offer under the rules depends on the nature of the noncompliance, and the text and purpose of the rules.126

Page 26 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

126 Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [37] Sackville AJA agreeing).

per McColl JA (Gleeson JA and

27.65 An offer which is inconsistent with the rules will not be treated as an offer made under the rules. For example, in New South Wales, it was formerly the position that offers under the rules could not be inclusive of costs. An offer which purported to be under the rules, but which was inclusive of costs, could not be treated as an offer under the rules.127 Similarly, an offer in which the time for acceptance is less than the mandatory minimum prescribed by the rules will not be treated as an offer under the rules.128 But even then, such an offer may take effect as a Calderbank offer (as is discussed further below),129 or as otherwise relevant to the exercise of the discretion as to costs.

127 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 128 Benton v Noye (1990) 101 FLR 18 at 19

.

per Asche CJ.

129 See 27.67–27.68 below.

27.66 The position may be different in cases of mere failure to comply with formalities. For example, it has been held that where there is no inconsistency of the type described above, and the rules do not impose any sanction for noncompliance,then a non-compliant offer will be treated as effective.130 On the other hand, it has been held that the court ought not to treat a non-compliant offer as having been made under the rules ‘unless the terms of the offer are such as to leave the offeree in no reasonable doubt as to the nature and extent of what is being offered’.131 It has been suggested that courts ought not take an ‘overly technical’ approach to the question whether an offer falls within the rules, because it would undermine the purpose of trying to encourage settlement, and would also be inconsistent with the overriding objective.132

130 Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [38]–[39] per McColl JA (Gleeson JA and Sackville AJA agreeing). In that case, the time for which the offer was open for acceptance was identified in the covering letter, rather than in the offer itself. 131 Grbavac v Hart [1997] 1 VR 154

per Winneke P.

132 Ziliotto v Hakim [2013] NSWCA 359 at [12] 1786 at [12]–[21]

per Basten JA (in dissent); Dibbs v Emirates (No 2) [2015] NSWSC

per Wilson J.

27.67 Where a party has failed to comply with the requirements for making an offer under the rules, the question arises whether the offer can nevertheless be treated as a

Page 1069

Page 27 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle Calderbank offer. It depends on the terms of the offer.As noted earlier,133 the critical feature of a Calderbank offer is that the offeror expresses its intention to rely on the letter on the question of costs. Thus (in the context of the New South Wales rules):134 … an offer made expressly pursuant to r 20.26 will not of itself take effect as a Calderbank offer unless there is something in it or in the surrounding circumstances to indicate that it is proposed to be relied upon on the question of costs, irrespective of its effectiveness as an offer under r 20.26.

133 See 27.21–27.25 above. 134 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [43] (Beazley P, McColl and Emmett JJA agreeing); see also at [58]–[59] per Barrett JA.

per Bathurst CJ

27.68 Where an offer has been expressed to be made pursuant to the rules, the fact that the covering letter is headed ‘Without prejudice as to costs’ is, by itself, insufficient to treat the offer as a Calderbank offer. Although that phrase is often used to signify a Calderbank letter, it does not indicate that an offer which is expressed to be under the rules has a ‘secondary or alternative significance’.135 As noted earlier, though,136 an offer which is not compliant with the rules, and does not qualify as a Calderbank offer, may nevertheless be taken into account by the court in the exercise of its discretion as to costs, although in such a case indemnity costs would not be available.

135 Ziliotto v Hakim [2013] NSWCA 359 at [127]–[129]

per Tobias AJA (Macfarlan JA agreeing). See Whitney v Dream

Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 at [59] per Barrett JA (Beazley P and McColl JA agreeing) as to the requirement that a non-rules-compliant offer must demonstrate a ‘secondary or alternative significance’ in order to be treated as a Calderbank offer. 136 See 27.35 above.

Withdrawing an offer

27.69 Although the details of the provisions vary, the position in all jurisdictions is that during the period in which an offer is open for acceptance, the offeror will usually require the leave of the court to withdraw an offer.137 The principal circumstances in which the court will permit withdrawal are where there has been some significant change in circumstances after the offer was made,138 or where the offeror has made the offer under a mistake.139

Page 1070

137 Federal Court Rules 2011 (Cth) r 25.07(a) — note that this provision only restricts withdrawals within 14 days after the offer is made, which is the minimum period permitted for offers to be left open, and does not restrict withdrawals which are after 14 days but still within the period of acceptance; Court Procedures Rules 2006 (ACT) r 1002(9); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(11); Supreme Court Rules (NT) r 26.03(5); Uniform Civil Procedure Rules 1999 (Qld) r 355(3); Supreme Court Rules 2000 (Tas) r 283(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Page 28 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle r 26.03(5); Rules of the Supreme Court 1971 (WA) O 24A r 3(6). In the Federal Court, an offer may also be withdrawn within 14 days after it is made if it is superseded by an offer which is more favourable to the offeree: Federal Court Rules 2011 (Cth) r 25.07(b). The leave of the court is not required in South Australia: Supreme Court Civil Rules 2006 (SA) r 188(4). 138 Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411 at [12]–[14]

per Palmer J, referred to with

approval in Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427; [2005] NSWCA 27 at [56]

per Mason P

(Sheller and Beazley JJA agreeing). In Hardy Bros v Hardy Bros [2008] NSWSC 1220 at [11] accepted that the principles enunciated in Scanruby continued to apply under the new rules.

, McDougall J

139 Blake v Leondiou (No 2) [2011] SASC 152 at [12]

per Lunn M.

27.70 The need for the offeror to obtain leave of the court to withdraw its offer can give rise to difficulty. Clearly, leave of the court can only be obtained after a court hearing, made on notice to the offeree. The question then arises: can the offer be accepted after the offeror has given notice that it wishes to withdraw it? Such a situation may arise where, for example, documents are uncovered which diminish the prospects of the offeree succeeding at trial: in such circumstances, the offeror may seek to withdraw its offer on the basis that there has been a significant change in circumstances, whilst the offeree may now regard the same offer as highly attractive. Where the offeree is on notice that the offeror wishes to withdraw its offer,it has been held that the court may give leave nunc pro tunc for the offer to be withdrawn, even where it is subsequently accepted, unless the rules of court provide otherwise.140 Indeed, if the court could not permit withdrawal nunc pro tunc, then any application by an offeror for leave to withdraw its offer could be defeated merely by the offeree accepting the offer before the application was heard by the court.141 The court may also have power to permit withdrawal, or to refuse to enforce a compromise, if the settlement is unjust (such as where the offer of compromise specified an incorrect settlement figure), or where the proceedings ought to progress to judgment in the interests of justice.142

140 Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411 at [14]–[18]

per Palmer J; Nesci v Nesci [2005]

WASC 65 at [18]–[20] per Newnes M. Cf Velardo v Andonov [2010] VSCA 38 at [50]–[62] (Mandie JA and Habersberger AJA agreeing). 141 Nesci v Nesci [2005] WASC 65 at [20]

per Ashley JA

per Newnes M.

142 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528

, especially 537–8 per Finlay J, referred to with

approval in Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427; [2005] NSWCA 27 at [56] (Sheller and Beazley JJA agreeing).

per Mason P

Accepting an offer

27.71 The offeree may accept the offer by serving some form of written notice on the offeror.143 As noted earlier, there are some jurisdictions in which the offer may or must indicate the time for acceptance of the offer. Where the offer does indicate a time for acceptance, the acceptance must be served within that period.144 Where no time for acceptance has been indicated, the most common position is that the acceptance

Page 1071 must be served within 14 days after service of the notice of offer, or before the date of delivery of the judgment, whichever is earlier.145

Page 29 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

143 Federal Court Rules 2011 (Cth) r 25.08(3); Court Procedures Rules 2006 (ACT) r 1003(1); Uniform Civil Procedure Rules 2005 (NSW) r 20.27(1); Supreme Court Rules (NT) r 26.03(4); Uniform Civil Procedure Rules 1999 (Qld) r 358(1); Supreme Court Civil Rules 2006 (SA) r 188A(1) and (4); Supreme Court Rules 2000 (Tas) r 283(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(4); Rules of the Supreme Court 1971 (WA) O 24A r 3(5). Note that in Western Australia, the offeree must in any event serve an acknowledgment of receipt within three days of service of the offer: O 24A r 3(4). 144 Federal Court Rules 2011 (Cth) r 25.08(1); Court Procedures Rules 2006 (ACT) r 1003(1); Uniform Civil Procedure Rules 2005 (NSW) r 20.27(1); Supreme Court Rules (NT) r 26.03(4); Supreme Court Rules 2000 (Tas) r 283(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(4)(a); Rules of the Supreme Court 1971 (WA) O 24A r 3(5) (this rule provides that the acceptance must be served before the expiry of the period indicated in the offer, or before judgment (or summing up in a trial before jury), whichever is sooner). 145 Federal Court Rules 2011 (Cth) r 25.08(2) (this provides only that if no time is specified, acceptance may be served at any time before judgment); Supreme Court Rules (NT) r 26.03(4); Supreme Court Civil Rules 2006 (SA) r 188A(1) (response to be provided within 14 days of service of offer); Supreme Court Rules 2000 (Tas) r 283(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(4)(a) and (b); Rules of the Supreme Court 1971 (WA) O 24A r 3(5) (this rule provides for a period of 28 days, rather than 14 days). The Queensland rules make no provision for the time in which the acceptance is to be served.

27.72 It should be noted that there are various rules which have the effect of modifying the operation of ordinary contract principles to the acceptance of offers to settle. For example, in the Australian Capital Territory, New South Wales, South Australia and Tasmania, an offer may be accepted even if a subsequent offer has been made in the proceedings.146 In Queensland, an offeree may accept an offer during the period in which it is open for acceptance, even if it has previously rejected that offer.147 In the Northern Territory, Queensland, Tasmania, Victoria and Western Australia, the offeree may accept an offer even if the offeree itself has made a second, subsequent offer to the offeror; in other words, a ‘counter-offer’does not operate as a rejection of the initial offer.148

146 Court Procedures Rules 2006 (ACT) r 1003(2); Uniform Civil Procedure Rules 2005 (NSW) r 20.27(2); Supreme Court Civil Rules 2006 (SA) r 188C(2). Cf Supreme Court Rules 2000 (Tas) r 284(3), which provides that the offer may be accepted even if the offeree makes a subsequent offer during the period for acceptance (that is, the proviso deals expressly only with the situation in which the subsequent offer is made by the offeree, and does not purport to deal with the situation in which the offeror makes a second offer during the period for acceptance). 147 Uniform Civil Procedure Rules 1999 (Qld) r 358(2). 148 Supreme Court Rules (NT) r 26.03(5); Uniform Civil Procedure Rules 1999 (Qld) r 358(2) and see also (3); Supreme Court Rules 2000 (Tas) r 283(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(6); Rules of the Supreme Court 1971 (WA) O 24A r 3(7).

27.73 If an offer is accepted, then there is provision in some jurisdictions for judgment to be entered in terms of the offer.149 This rule enables the parties to resolve the cause of action with the finality of a court judgment.150

149 In the Australian Capital Territory and New South Wales, ‘any party’ to an accepted offer ‘may apply for judgment to be entered accordingly’: Court Procedures Rules 2006 (ACT) r 1003(3); Uniform Civil Procedure Rules 2005 (NSW) r 20.27(3). The Western Australian rules are to similar effect, although they provide further that on such an application‘the Court shall give such judgment or make such order as it thinks fit’: Rules of the Supreme Court 1971 (WA) O 24A r 9. Cf Uniform Civil Procedure Rules 1999 (Qld) r 358(4), which provides that ‘If an offer is accepted, the court may incorporate any of its conditions into an order’. In South Australia, the rules provide that where a ‘judgment

Page 30 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle offer’is made, then its terms may be reflected in a consent judgment: Supreme Court Civil Rules 2006 (SA) r 188C(4), and see r 187(2), which defines a judgment offer as an offer expressed ‘in terms of a judgment to be entered upon acceptance’, as distinct from a ‘contract offer’. Where a contract offer is made, the court may make ‘appropriate orders’: see r 188C(5). 150 As to the principle of finality, see generally Chapter 26.

27.74 In some jurisdictions, there is provision for the offeree to withdraw its acceptance in limited circumstances; specifically, where the offeror has failed to complete an act

Page 1072 required under the offer within 28 days, or where the court has given the offeree leave to withdraw.151 Where an acceptance is withdrawn, there is provision for the court to make a variety of consequential orders, for example to restore the parties to the position which existed at the time of acceptance.152

151 Federal Court Rules 2011 (Cth) r 25.09(1); Court Procedures Rules 2006 (ACT) r 1004(1); Uniform Civil Procedure Rules 2005 (NSW) r 20.28(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07(1); Rules of the Supreme Court 1971 (WA) O 24A r 5(1). 152 Federal Court Rules 2011 (Cth) r 25.09(2); Court Procedures Rules 2006 (ACT) r 1004(2); Uniform Civil Procedure Rules 2005 (NSW) r 20.28(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07(2); Rules of the Supreme Court 1971 (WA) O 24A r 5(2)and (3).

Failure to comply with offer

27.75 If an offer is accepted, and either party fails to comply with the terms of the offer, the rules usually provide for a variety of consequences. The court may deliver judgment or make an order in terms of the offer.153 The court may also strike out the pleadings of the party in default.154 The rules also empower the court to make orders concerning the further conduct of other claims in the proceedings which were not the subject of the offer (the precise content of the rule varies between jurisdictions).155 A different position obtains in Queensland, where the rules provide simply that the party faced with non-compliance may choose either to apply for an order in terms of the offer, or proceed as if the offer was not made.156 In some jurisdictions, the consequences of failure to comply are different where there are multiple defendants.157

Page 1073

153 Federal Court Rules 2011 (Cth) r 25.10(a); Court Procedures Rules 2006 (ACT) r 1005(1)(a) and (2)(a); Uniform Civil Procedure Rules 2005 (NSW) r 20.29(1)(a) and (2)(a); Supreme Court Rules (NT) r 26.07(1)(a); Supreme Court Civil Rules 2006 (SA) r 188E(1)(a); Supreme Court Rules 2000 (Tas) r 288(1)(a) although see also r 288(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07.01(a); cf Rules of the Supreme Court 1971 (WA) O 24A r 8(1) (the party not in default is entitled to an order that the proceedings be dismissed or that the defence be struck out (depending on the identity of the defaulting party), or ‘may apply to the Court for such judgment or order as he may be entitled to’). 154 Federal Court Rules 2011 (Cth) r 25.10(b) and (c); Court Procedures Rules 2006 (ACT) r 1005(1)(b) and (2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 20.29(1)(b) and (2)(b); Supreme Court Rules (NT) r 26.07(1)(b); Supreme Court Civil Rules 2006 (SA) r 188E(1)(b) and (2)(b); Supreme Court Rules 2000 (Tas) r 288(1)(b) and (c), although see also r 288(2) and (4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07.01(b) and (c); Rules of the

Page 31 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle Supreme Court 1971 (WA) O 24A r 8(1)(a) (the party not in default is entitled to such an order unless the court otherwise orders). 155 Federal Court Rules 2011 (Cth) r 25.10(d); Court Procedures Rules 2006 (ACT) r 1005(3); Uniform Civil Procedure Rules 2005 (NSW) r 20.29(3)(b); Supreme Court Rules (NT) r 26.07(2); Supreme Court Rules 2000 (Tas) r 288(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07.01(d); Rules of the Supreme Court 1971 (WA) O 24A r 8(2). Cf Supreme Court Civil Rules 2006 (SA) r 188E(1)(d) and (2)(d). 156 Uniform Civil Procedure Rules 1999 (Qld) r 365. 157 In the Federal Court (Federal Court Rules 2011 (Cth) r 25.11), Victoria (Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.07.2)and Western Australia (Rules of the Supreme Court 1971 (WA) O 24A r 9) the consequences of failing to comply with an accepted offer do not apply in certain circumstances.

Costs consequences of accepting an offer under the rules

27.76 In each jurisdiction, the rules make at least some provision for how costs will be awarded in the event that an offer which has been made under the rules is accepted. However, it must be emphasised that there is no pattern between the jurisdictions as to the general approach; in fact, as will be seen, different jurisdictions sometimes take diametrically opposed positions as to the question who should bear costs in the event that an offer is accepted.

27.77 It is important that the costs consequences of acceptance be predictable. This is because the offeror and the offeree ought both to be able to determine what the net result of any settlement will be. This includes not only the sum which will be paid in respect of the claim, but also the sum which will be paid in respect of costs. It would be irrational for a party to make or accept an offer if, for example, it was entirely unaware of whether it would be paying its opponent’s costs,or receiving costs from its opponent, in the event of acceptance. Supposing a claim is for a value of $200,000, an offer is made by the defendant to settle in the plaintiff’s favour for $100,000, and each of the parties has incurred $30,000 in party-party costs. The value of the settlement to the plaintiff could be as little as $40,000 (if the plaintiff bears all costs), or as much as $100,000 (if the defendant bears all costs). Greater certainty about costs consequences enables the parties to determine what will be the actual net effect of the settlement. This ought to have the effect of encouraging settlement.

27.78 In the Australian Capital Territory and New South Wales, the rules provide for the costs consequences of acceptance in the event that the offer proposed a judgment in favour of one party or the other,158 but made no provision for costs. In short, the rules provide that the party in whose favour the offer proposed a judgment will be entitled to its costs on a party and party basis.159 Where an offer is ‘mixed’ — that is, it contains elements in favour of each party — the rule has no application, and the court will exercise its general discretion.160

158 As noted earlier, the rules in each jurisdiction enable any party to an accepted offer to apply to the court for judgment in accordance with its terms: Court Procedures Rules 2006 (ACT) r 1003(3); Uniform Civil Procedure Rules 2005 (NSW) r 20.27(3). 159 Court Procedures Rules 2006 (ACT) r 1009; Uniform Civil Procedure Rules 2005 (NSW) r 42.13A. 160 Johnston v Johnston (2016) 14 ASTLR 123; [2016] NSWCA 52 at [37],[39] JJA agreeing).

per Ward JA (Leeming and Simpson

Page 32 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

27.79 As noted earlier, these jurisdictions place limits on the range of terms which may be included concerning costs. However, where the default position applies, it appears that it applies automatically; there is no provision for the court to order otherwise.161 Thus, the regime in the Australian Capital Territory and New South Wales has the advantage of certainty: either the parties can agree on the costs consequences of acceptance, or the court will impose predictable consequences, namely party and party costs payable to

Page 1074 the party in whose favour the offer proposed a judgment. Similarly, in South Australia, an offer which is silent as to costs will be taken to provide that the defendant pay the plaintiff’s costs up to the date of acceptance on a party and party basis.162

161 Note that there was a power to order otherwise under the previous version of the rule: see Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 at [25] at [64] per Emmett JA.

per Bathurst CJ (Beazley P and McColl JA agreeing); see also

162 Supreme Court Civil Rules 2006 (SA) s 187(6)(b).

27.80 The rules in the Northern Territory and Western Australia make provision as to the usual costs consequences in the event that an offer is accepted: that the defendant will pay the plaintiff ’s costs up to the date of the offer, unless the court otherwise orders.163 The rules then go on to provide that if an offer to settle ‘contains a term which purports to negative or limit the operation’ of those costs consequences, ‘that term shall be of no effect for any purpose’ under the rules.164

163 Supreme Court Rules (NT) r 26.03(7); Rules of the Supreme Court 1971 (WA) O 24A r 10(1). 164 Supreme Court Rules (NT) r 26.03(8); Rules of the Supreme Court 1971 (WA) O 24A r 10(2).

27.81 Under these rules, the offeror cannot tailor the costs consequences in its offer to the particular circumstances of the case. So, for example, even where a claim has little merit, a defendant making an offer to settle must nevertheless pay the plaintiff ’s costs unless the court orders otherwise. Thus, even if the defendant has good grounds for a costs order in its favour, a court hearing will be required to obtain that order. These arrangements have the potential to create uncertainty,and — particularly in weak claims — have the potential to operate unfairly to the defendant.

27.82 Beyond that, the rules in different jurisdictions offer a diverse approach to the question of costs on acceptance. In the Federal Court, the offeree is entitled to costs on a party and party basis, up to and including 14 days after the offer was made.165 In Queensland, Tasmania and Victoria, there is no default provision for costs in the absence of an agreement between the parties.166

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165 Federal Court Rules 2011 (Cth) r 25.12. Although the rule itself does not expressly enable the court to make an alternative order, it retains a discretion to do so: r 1.35. 166 Uniform Civil Procedure Rules 1999 (Qld) r 358, Supreme Court Rules 2000 (Tas) r 284 and Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.03(7) provide only for the consequences in the event that the offer itself deals with the allocation of costs between the parties.

Costs consequences of non-acceptance of an offer under the rules

27.83 The costs consequences of not accepting an offer made under the rules vary between the jurisdictions. Further, the terminology differs between jurisdictions, as in other areas of costs. This section therefore identifies the broad approaches taken by the various rules; as always in the field of costs, care should be taken by practitioners to refer to the precise wording of the rules.

27.84 The costs consequences of not accepting an offer represent the most fundamental aspect of the system of offers to settle under the rules and are critical to the successful operation of the system as a whole. When dealing with the consequences of non-acceptance, the court has to promote a number of objectives. It must ensure that the system remains an effective vehicle for compromise. To this end, it must strive

Page 1075 to ensure that the consequences are as predictable as possible,167 so that the parties can make well-informed decisions when they consider making or accepting settlement offers. Indeed, courts have repeatedly expressed the view that policy reasons might dictate that even an offeree who reasonably refuses an offer may nevertheless be visited with the adverse costs consequences contemplated by the rules. This arises because of the inherently uncertain nature of litigation, and the fact that the rules have the effect of placing on the offeree the obligation to make a decision about the risks and benefits of accepting or rejecting an offer. In Maitland Hospital v Fisher (No 2), the New South Wales Court of Appeal explained the position in the following terms:168 The rule does no more than to oblige litigants, and those advising them, to consider realistically, upon the best information available to them, the prospects of success and the likely outcome of the litigation. Where, in the particular circumstances, the litigant or its advisers mis-judge the prospects of success or mis-calculate the outcome, their mistake may be warranted on the material which they had available. Alternatively, it may be no more than a mis-calculation in a case with large imponderables where the course they took was nonetheless perfectly reasonable. Litigation is inescapably chancy. The purpose of the rule is to put a premium on realistic assessment of cases. It is not to demand perfect foresight which is denied even to the judges. That is why a discretion is retained, under the rule, for the Court to order otherwise than as the rule provides. But the ordinary provision is expected to apply in the ordinary case. It has added a new duty to the functions of legal practitioners advising litigants. It is a duty which is both protective of the interests of litigants and of the public interest in the prompt and economical disposal of litigation. It is the duty of courts, allowing for exceptions in particular cases,to give effect to the purpose of the rule.

167 See Ziliotto v Hakim [2013] NSWCA 359 at [13]

(per curiam).

Page 34 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 168 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 725–6

(per curiam) (citation omitted). See, to similar

effect, the remarks made in Shaw v Jarldon (1999) 76 SASR 28 at 29–31; [1999] SASC 529

per Doyle CJ.

27.85 The importance of certainty in this context was stressed by Heerey J (in the context of the Federal Court rule concerning payment into court) in Wills v Bigmac Pty Ltd & Ford Motor Co of Australia Ltd, in which his Honour stated:169 … an important element in facilitating proper consideration of a payment in is certainty as to the costs consequences. It would in my opinion require compelling and exceptional circumstances before a court ‘otherwise orders’.Were this not so, applicants might be inhibited in accepting otherwise reasonable offers because of uncertainty as to the costs consequences. The effectiveness of O.23 in promoting settlement of litigation would be diminished.

169 (FCA, Heerey J, 9 December 1994, unreported).

27.86 The court ought also to strive to ensure that the consequences are fair to both parties. However, the imperatives of predictability and of fairness are not always compatible with each other. The rules could only be perfectly predictable if they provided for a default costs consequence which would always apply where an offer was not accepted but the offeree failed to obtain a judgment which was more favourable to it than the offer. However, such a result may not always be fair. For example,the merits of the case may have changed between the time the offer was made and the

Page 1076 time that final judgment was delivered, or the offeree may not have had all information necessary to assess the offer. Further, the measure of damages at trial is notoriously unpredictable, so that it might be considered to be unfair to treat a party who has obtained a judgment in its favour, but failed by a small margin to better the offer that was made to it, in the same way as a party whose claim was entirely without merit.

27.87 For this reason, in all jurisdictions, the court has power to order otherwise; that is, to make an order which is different to the usual consequences of failing to accept an offer. However, that power ought to be exercised only in exceptional circumstances, having regard to the purpose of offers to settle.170 In the Federal Court, this principle has been described as a rebuttable presumption.171 The party who has rejected the offer bears the onus of establishing that the court ought to make an exceptional order.172 It has been said that ‘[i]t is impossible exhaustively to state the circumstances in which the court’s discretion to “order otherwise” might be exercised’.173 That the offeree acted reasonably in rejecting the offer is relevant but not determinative,174 thus distinguishing the position under the rules from the position where there has been a Calderbank offer.175

170 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 725–6 NSWLR 578 at 583

(per curiam); Morgan v Johnson (1998) 44

per Mason P (Sheller JA agreeing); Shaw v Jarldon [1999] SASC 529; (1999) 76 SASR 28 at

Page 35 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 29–30

per Doyle CJ. See, for example, IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1;

[2010] FCAFC 31 at [9]

(per curiam); Richardson v Oracle Corporation Australia Pty Ltd (No 2) [2014] FCAFC 139

at [11] (per curiam); Allen v Chadwick (No 2) [2014] SASCFC 130 at [33] per Gray and Nicholson JJ. It should be noted that there is some dispute about whether this is the position in New South Wales: Leach v Nominal (QBE Insurance (Australia)Ltd) (No 2) [2014] NSWCA 391 at [46]–[47] per McColl JA (Gleeson JA and Sackville AJA agreeing)(endorsing the ‘exceptional circumstances’ test); the question was left open by a differently constituted Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 at [18]

(per

curiam). But cf Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [15] ; Barakat (t/as Keddies Lawyers) v Bazdarova (in her capacity as executrix of the estate of the late Bazdarov) [2012] NSWCA 140 at [42]–[50] per Tobias AJA (Bathurst CJ and Whealy JA agreeing). 171 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004]FCA 1437 at [17] Hely J; Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [10]

per

per Katzmann J.

172 IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1; [2010] FCAFC 31 at [9]

per Stone,

Edmonds and Jagot JJ; Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [45] McColl JA (Gleeson JA and Sackville AJA agreeing).

per

173 Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [48] per McColl JA (Gleeson JA and Sackville AJA agreeing); the same point was made in slightly different terms in New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 at 102

per Gleeson CJ (Clarke and Cripps JJA agreeing). See also

Shaw v Jarldon [1999] SASC 529; (1999) 76 SASR 28 at 31

per Doyle CJ; Port Kembla Coal Terminal Ltd v

Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004] FCA 1437 at [18]

per Hely J.

174 Leach v Nominal (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [48] per McColl JA (Gleeson JA and Sackville AJA agreeing); cf Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004] FCA 1437 at [18]

per Hely J.

175 IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1; [2010] FCAFC 31 at [12] Edmonds and Jagot JJ.

per Stone,

27.88 It has been doubted that there is a general principle that the court ought to order otherwise where the offeree had insufficient information to make an informed decision

Page 1077 about the offer (absent other circumstances),176 or where the offeror’s case changed during the period in which the offer was open (absent other circumstances).177 It will usually be insufficient for the offeror to establish merely that ‘something unexpected or unforeseen has happened during the course of the litigation’.178

176 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004]FCA 1437 at [23] Hely J.

per

177 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281; [2004]FCA 1437 at [26] Hely J.

per

178 Shaw v Jarldon [1999] SASC 529; (1999) 76 SASR 28 at 34

per Perry J and see also 30 per Doyle CJ; Richardson

v Oracle Corporation Australia Pty Ltd (No 2) [2014] FCAFC 139 at [11]–[12]

(per curiam).

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27.89 On the other hand, there may be power to order otherwise if the offeree’s ability to assess the offer was affected by something akin to the offeror’s breach of disclosure rules,179 or if events after the offer meant that ‘… the amount of the judgment that the [offeror] ultimately recovers was materially affected by subsequent events that the [offeree] could not reasonably have anticipated’.180

179 Shaw v Jarldon [1999] SASC 529; (1999) 76 SASR 28 at 30

per Doyle CJ, 34 per Perry J.

180 Shaw v Jarldon [1999] SASC 529; (1999) 76 SASR 28 at 30

per Doyle CJ, see also at 34 per Perry J.

27.90 A further tension arises in respect of costs consequences. On one hand, offers to settle under the rules promote the public interest that proceedings be settled without progressing to final judgment. To this end, the rules in all jurisdictions impose an adverse costs consequence on parties who fail to accept an offer, and then fail to obtain a judgment in their favour which is more advantageous to them than that offer. On the other hand, however, it has been recognised that there may be circumstances in which court resolution is more appropriate than settlement, such as where a public body is a party and there is a question of general importance, or where serious allegations are made against a party and a judgment is necessary to vindicate its position.181 Further, one ought not overlook the broader public interest in having courts adjudicate matters for the purpose of clarifying or developing the law.182 The court has ordered otherwise where an appeal raised ‘generally applicable questions of public law’, and the respondent to the appeal was ‘a public authority, [which] was the only appropriate contradictor to the appellant’s claim’.183

181 See 27.41 above. 182 O Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073; in the context of Calderbank letters, it was noted earlier that this consideration may mean that Calderbank principles are applied differently on appeal: see 27.41 above. 183 Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 at [18]

(per curiam).

27.91 It must be stressed that the costs consequences of non-acceptance apply only to settlement offers that have been made in accordance with the requirements of the rules. This general observation is, however, subject to an important qualification.As noted earlier, not every minor deviation from the requirements of the rules will take an offer outside the rules.184 Further, in most jurisdictions, the costs consequences apply

Page 1078 only where the offeror can demonstrate that it was willing and able to carry out the offer at all relevant times.185

184 See 27.64–27.66 above. 185 Court Procedures Rules 2006 (ACT) r 1014; Uniform Civil Procedure Rules 2005 (NSW) r 42.17; Supreme Court Rules (NT) r 26.08(7); Uniform Civil Procedure Rules 1999 (Qld) rr 360(1)(b) and 361(1)(b); Supreme Court Rules 2000 (Tas)

Page 37 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle r 289(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(7); Rules of the Supreme Court 1971 (WA) O 24A r 10(3).

27.92 A court in imposing costs consequences will need to consider whether the judgment was more favourable or advantageous than the offer. This will be a simple exercise where the offer was for a fixed monetary settlement, and the judgment is also for a fixed monetary sum. (In most jurisdictions, the rules provide that the court must disregard any award of interest in determining costs consequences, from the date of the offer onwards.)186 But it may be more difficult where the judgment in whole or part comprises orders for non-monetary amounts. An offer may be more favourable where it contains a requirement which was not the subject of a court order.187 Further, a particular difficulty may arise where the offer included terms which the court could not order (such as a term requiring that the offeror not disclose the terms of the settlement). It has been said that in considering whether a judgment is more favourable:188 … it is necessary to have regard to the terms of the orders in their totality. While an individual order may in its terms suggest a different conclusion to the one ultimately reached by the Court, no single particular order is determinative.It is necessary to weigh the overall effect of all the orders made. The word ‘favourable’ in O 23 r 11(4) requires a balancing of the relative impacts of all the orders.

186 Court Procedures Rules 2006 (ACT) r 1013; Uniform Civil Procedure Rules 2005 (NSW) r 42.16; Supreme Court Rules (NT) r 26.08(5); Supreme Court Rules 2000 (Tas) r 289(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(5); Rules of the Supreme Court 1971 (WA) O 24A r 10(7). 187 Peterson v Hottes [2012] QCA 362 at [4]

per Muir JA (Gotterson JA and Henry J agreeing).

188 Brother Industries, Ltd v Dynamics Supplies Pty Ltd [2008] FCA 126 at [6]

per Tamberlin J, cited with approval in

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [33] the current Federal Court Rules.

per Katzmann J in relation to

Offers by plaintiffs

27.93 The rules in all jurisdictions provide that where a plaintiff makes an offer to a defendant which is not accepted, and the plaintiff subsequently obtains a judgment which is at least as advantageous as that offer, the plaintiff will be entitled to its costs, usually on an indemnity or solicitor-client basis (that is, on a more favourable basis than would ordinarily be ordered). Beyond that, the rules may be divided into two categories. In some jurisdictions, the plaintiff will be entitled to its costs on the same basis for the entire duration of the proceedings. In other jurisdictions, the plaintiff ’s entitlement to costs at the higher rate is only from the time of the making of the offer.

27.94 It should be noted that where the plaintiff has a judgment in its favour, it would ordinarily be entitled to costs in any event, on the party and party basis. Thus, the imposition of a more onerous costs order — namely, paying costs on the higher

Page 1079

Page 38 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle basis — serves to create an incentive for the plaintiff to make an offer (in the hope of having such an order in its favour), and an incentive for the defendant to accept it (in order to avoid having to satisfy such an order).

27.95 In the Federal Court, the Australian Capital Territory, New South Wales, South Australia and Victoria, the plaintiff will be entitled to indemnity or solicitor-client costs from about the date on which the offer was made (the precise point in time varies between jurisdictions), or the end of the period for acceptance (depending on the jurisdiction).189 Prior to that date, the plaintiff will be entitled to ordinary or party and party costs.

189 Federal Court Rules 2011 (Cth) r 25.14(3); Court Procedures Rules 2006 (ACT) r 1010(2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 42.14; Supreme Court Civil Rules 2006 (SA) r 188F(3) (indemnity costs are imposed from the date 14 days after service of the offer); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(2)(b) (indemnity costs are imposed from 11.00 am on the second business day after the offer was served).In the Australian Capital Territory and New South Wales, a different date is provided for where the offer was made on or after the first day of trial.

27.96 In the Northern Territory, Queensland and Tasmania, the plaintiff will be entitled to its costs for the entire duration of the proceedings on the indemnity or solicitor-client basis (that is, on a basis which is more generous to the receiving party than the usual basis for awarding costs).190 The same arrangement applies in the Australian Capital Territory and Victoria to personal injury claims.191 A defendant in these jurisdictions who receives an offer from the plaintiff therefore has a stronger incentive to accept the offer than in the jurisdictions where a ‘split order’ will be made.

190 Supreme Court Rules (NT) r 26.08(2); Uniform Civil Procedure Rules 1999 (Qld) r 360; Supreme Court Rules 2000 (Tas) r 289(1). 191 Court Procedures Rules 2006 (ACT) r 1010(2)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(2)(a).

27.97 The exception to the above scheme is Western Australia, where a plaintiff will be entitled to its costs on only a party and party basis.192 This is no different to the situation which would usually obtain where a plaintiff has succeeded at trial. However, where the failure to accept the offer was unreasonable, the plaintiff will usually be entitled to costs on the indemnity basis from the date of the offer.193

192 Rules of the Supreme Court 1971 (WA) O 24A r 10(4). 193 Rules of the Supreme Court 1971 (WA) O 24A r 10(5A).

27.98

Page 39 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle In all jurisdictions, though, the court has power to make an alternative order. The rules do not prescribe the circumstances in which an alternative order may or should be made; rather, the default costs consequences are expressed to apply‘unless the Court otherwise orders’ (or words to that effect).

Offers by defendants

27.99 The rules in each jurisdiction make separate provision for the circumstance in which a defendant makes an offer to the plaintiff which is not accepted, and which the plaintiff fails to beat at trial. Regrettably, the rules concerning the costs consequences where a defendant has made an offer are, in some jurisdictions, in terms which lead to anomalous and unfair results, or in terms which fail to provide comprehensively — and

Page 1080 in some jurisdictions, fail to provide at all — for adverse costs consequences for the plaintiff in the event that the defendant is successful at trial. The jurisdictions may be divided into four categories for the purpose of considering the costs consequences where a defendant’s offer is not accepted and is not beaten at trial by the plaintiff. Different problems or lacunae arise in each, and will be identified in the discussion which follows.

27.100 The rules in the Australian Capital Territory, New South Wales and South Australia are relevantly similar, and are exceptional in that they avoid the problems referred to above. In short, the rules distinguish between two situations. Where the plaintiff obtains a judgment in its favour which is no more favourable than the offer, then a ‘split order’ will be made. The plaintiff will be entitled to its costs, on an ordinary or party and party basis, up to and including the date of the offer. The defendant will be entitled to costs after that date, on a party and party basis (in the Australian Capital Territory and South Australia) or an indemnity basis (in New South Wales).194 Different provisions are made in the Australian Capital Territory for personal injury claims.195

194 Court Procedures Rules 2006 (ACT) r 1011(2)(b); Uniform Civil Procedure Rules 2005 (NSW) r 42.15; Supreme Court Civil Rules 2006(SA) r 188F(5). In the Australian Capital Territory and New South Wales, a different date is provided for where the offer was made on or after the first day of trial; cf Supreme Court Civil Rules 2006 (SA) r 188F(1)(e). 195 Court Procedures Rules 2006 (ACT) r 1011(2)(a).

27.101 The rules in the Australian Capital Territory, New South Wales and South Australia make separate provision where the plaintiff has failed to accept an offer, and the defendant has obtained a judgment which is no less favourable than the offer it made (in other words, if the defendant has bettered its offer at trial). In those circumstances, a different type of ‘split order’ will be made. The defendant will be entitled to its ordinary or party and party costs up to and including the date of the offer; thereafter, the defendant will be entitled to costs on the indemnity or solicitor and client basis.196

196 Court Procedures Rules 2006 (ACT) r 1012; Uniform Civil Procedure Rules 2005 (NSW) r 42.15A; Supreme Court Civil Rules 2006(SA) r 188F(4). In the Australian Capital Territory and New South Wales, a different date is provided for where the offer was made on or after the first day of trial; cf Supreme Court Civil Rules 2006 (SA) r 188F(1)(e).

Page 40 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

27.102 The rules in the Australian Capital Territory, New South Wales and South Australia are rational in two respects. First, they provide an adverse costs consequence to the plaintiff for a failure to accept in any circumstances where the plaintiff fails to better that offer at trial. Secondly, the costs consequences are more disadvantageous where the plaintiff has failed entirely at trial (and judgment has been entered in favour of the defendant), compared to where the plaintiff has succeeded at trial but the judgment is less advantageous than the defendant’s offer. The problems which arise in the rules of the other jurisdictions may be understood more clearly in comparison to these rules.

27.103 The rules in Queensland and Tasmania form a second category. It is necessary to set out the Queensland rule to illustrate the problem which arises. Rule 361 provides that the costs consequences arise where:197 … the defendant makes an offer that is not accepted by the plaintiff and the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer …

Page 1081 In those circumstances, the plaintiff will be entitled to its costs on a standard or party and party basis up to and including the date of the offer; the defendant will be entitled to its costs on a standard or party and party basis thereafter.198

197 Uniform Civil Procedure Rules 1999 (Qld) r 361(1)(a). 198 Uniform Civil Procedure Rules 1999 (Qld) r 361; Supreme Court Rules 2000 (Tas) r 289(2). In Queensland, different provision is made where the offer was served on or after the first day of trial.

27.104 The difficulty is that these rules apply to two situations: the situation in which the plaintiff succeeds at trial and ‘obtains’ an order (albeit that it is less favourable than the offer), and the situation in which the plaintiff is entirely unsuccessful, and therefore ‘does not obtain an order that is more favourable’ than the offer. This creates an anomaly. Taken literally, the rules provide that the entirely unsuccessful plaintiff is entitled to its costs up to the date on which the defendant made an offer. The unsuccessful plaintiff, who has failed to accept an offer, therefore receives a bonus, because the rules provide, as a default position, that it is nevertheless entitled to its costs up to the time of the offer.199

199 In Queensland, r 361 was previously in similar terms to the rule which currently exists in the Northern Territory and Western Australia (discussed below) — namely, it was entirely silent as to the consequences if a defendant were successful. Civil Procedure Queensland currently states that ‘Rule 361 has no application where the plaintiff does not recover judgment for any sum because r 361(1)(a) is satisfied only where the plaintiff obtains a judgment’. It is respectfully suggested that this observation is no longer accurate, although it was accurate under the earlier version of the rule.

Page 41 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

27.105 Of course, in both jurisdictions, the court has the power to make alternative orders, and it is suggested that the court ought to do so as a matter of course where the defendant is successful because the rules create an absurd and unfair result when applied literally. But the defendant is then placed in the position of requiring the court to exercise its costs discretion in its favour, rather than enjoying the benefits of a predictable outcome which should result from an offer under the rules.

27.106 The rules in the Northern Territory and Western Australia form a third category. In those jurisdictions, the rules provide adverse costs consequences for the plaintiff where:200 … the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer …

In those circumstances, the usual order will be that the plaintiff will be entitled to costs up to and including the date the offer was made, and the defendant will be entitled to costs thereafter, taxed on a party and party or standard basis.201 In Western Australia, the defendant’s costs will be taxed on an indemnity basis if the plaintiff’s failure to accept was unreasonable.202

200 Supreme Court Rules (NT) r 26.08(3); Rules of the Supreme Court 1971 (WA) O 24A r 10(5). 201 Supreme Court Rules (NT) r 26.08(3); Rules of the Supreme Court 1971 (WA) O 24A r 10(5). 202 Rules of the Supreme Court 1971 (WA) O 24A r 10(7A).

27.107 However, the rules in both jurisdictions are silent as to what happens in the event that the defendant is successful and defeats the claim in its entirety at trial, having made an offer to the plaintiff. This is because, as set out above, the adverse costs consequence for the plaintiff applies only where ‘the plaintiff obtains judgment’. Thus,

Page 1082 where the defendant is successful after having made an offer, the costs consequences fall to be resolved by the exercise of the common law discretion.

27.108 In Anderson v McPherson,203 Edelman J noted this omission in the rules, and left open the question whether (and how) the existence of the rule might be taken into account by the court in the exercise of its common law discretion as to costs. The equivalent rules in the Federal Court, New South Wales and Queensland previously contained the condition that the plaintiff obtain judgment, although they have now been amended. Earlier jurisprudence from those jurisdictions may therefore be of assistance in considering costs consequences under the current rules in the Northern Territory and Western Australia. It was accepted in the Federal Court that a successful defendant whose offer had been rejected had no prima facie entitlement to indemnity costs, and could not rely on the rules in support of an application for indemnity costs.204 This was so even though the rules provided indemnity costs to the

Page 42 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle defendant after the date of the offer where the plaintiff had obtained a judgment, but failed to beat the offer. But the defendant’s offer would be relevant to the question whether the court should order that costs be paid on indemnity basis.205 When a rule in the same form existed in Queensland, the position was that the offer would be treated like a Calderbank letter.206

203 [2012] WASC 19 (S2) at [8]

.

204 Seven Network Ltd v News Ltd (2007) 244 ALR 374; [2007] FCA 1489 at [32]–[34] 205 Seven Network Ltd v News Ltd (2007) 244 ALR 374; [2007] FCA 1489 at [32]

per Sackville J. per Sackville J.

206 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 2) [2009] 2 Qd R 287; [2008] QCA 398 at [7]–[13] (McMurdo P and Holmes JA agreeing).

per White AJA

27.109 The present state of the rules in the Northern Territory and Western Australia is, therefore, highly unsatisfactory. The rules provide for no adverse costs consequence where a plaintiff rejects an offer and is then entirely unsuccessful at trial. Instead, the costs will be resolved by the exercise of the court’s general discretion. The court will take the offer into account in this exercise, and may grant the defendant indemnity costs. But this result is far from certain. Thus, the costs consequences are unpredictable, even though the defendant’s offer was made pursuant to the rules.

27.110 The rules in the Federal Court and Victoria form a final category. Like the Australian Capital Territory and New South Wales rules, they distinguish the situation in which the plaintiff is successful but fails to beat the offer from the situation in which the defendant is successful. In the former case, a ‘split order’ is made — the defendant is entitled to costs on the ordinary basis (in Victoria) or the indemnity basis (in the Federal Court) after 11.00 am on the second business day after the offer was served. Before that time, the plaintiff is entitled to its ordinary costs.207

207 Federal Court Rules 2011 (Cth) r 25.14(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(3). The Federal Court rules do not expressly refer to the plaintiff’s entitlement, but this would follow as an ordinary application of the rule that costs follow the event.

27.111 Where a defendant is successful, and the plaintiff has unreasonably failed to accept an earlier offer, then the defendant will be entitled to party and party or ordinary costs up to 11.00 am on the second business day after the offer was served,

Page 1083 and indemnity costs thereafter.208 But the rules are silent as to the costs consequences if the defendant is successful, but the plaintiff ’s failure to accept was reasonable. The default position in that situation would be that costs would follow the event, and the defendant would ordinarily be entitled to its party and party or ordinary costs. Where a defendant has made an offer under the rules, and is then successful at trial, it is therefore in no better position than if it had made no offer. There is a small anomaly here, therefore: the plaintiff who rejects an offer will

Page 43 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle suffer no adverse costs consequence if it is entirely unsuccessful (beyond the application of the usual rule that costs follow the event), whereas the plaintiff who succeeds at trial but fails to beat an offer will be penalised in costs for failing to accept the offer.

208 Federal Court Rules 2011 (Cth) r 25.14(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(4).

27.112 In summary, therefore, the rules in Queensland and Tasmania provide for an anomalous result in the event that a plaintiff rejects an offer and is then entirely unsuccessful at trial; the rules in the Australian Capital Territory and Western Australia fail to provide for this scenario. The court can avoid the anomalous outcomes described above, through the use of its residual discretion. However, resort to the residual discretion undermines the principal advantage of having defined costs consequences in the rules: they create certainty. It is, therefore, respectfully suggested that the rules concerning the costs consequences of failure to accept an offer are ripe for reform in these jurisdictions.

The difference between Calderbank offers, and offers under the rules

27.113 The crucial distinction between offers made under the rules and other offers to settle is that the default costs consequences specified in the rules apply only to offers made in accordance with the rules. Calderbank offers (and, indeed, other informal offers) are relevant only to the exercise of the court’s discretion as to costs. The difference between the two systems was explained by Santow JA (with whom Bryson and Stein JJA agreed) in Leichhardt Municipal Council v Green:209 There are some distinctions between the two procedures in their attendant costs consequences. A key difference is that where an offer of compromise has been made under the Rules, a prima facie entitlement arises in the relevant party to have costs awarded in accordance with the appropriate Rule. This entitlement, though subject to the Court’s discretion to prevent substantial injustice in exceptional cases, will rarely be interfered with. By contrast, the costs consequences attendant under general law upon an offer of compromise made in a Calderbank letter lie within the discretion of the Court, to be exercised having regard to all the relevant circumstances of the case. It is not the case that unaccepted offers of compromise by Calderbank letter should give rise to a prima facie presumption of indemnity costs if the offer is not bettered.

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209 Leichhardt Municipal Council v Green [2004] NSWCA 341 at [19]

per Santow JA (Bryson and Stein JJA agreeing)

(citations omitted); see also, to similar effect, Commonwealth v Gretton [2008] NSWCA 117 at [114] JA (Mason P agreeing).

per Hodgson

27.114 There is a greater degree of flexibility in Calderbank letters — for example, the offeror can choose how long the offer is open for, although this may be taken into account in determining whether the offeree’s refusal was

Page 44 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle reasonable.210 Thus, the potential for uncertainty as to the consequences is greater, as the court must decide on a case-by-case basis whether, for example, a very short window of time in which to accept the offer renders the offeree’s refusal reasonable,or indicates that the offer was not a genuine attempt at compromise.

210 As a further example, a Calderbank offer may be withdrawn by the offeror simply withdrawing the offer: GIO General Ltd v Allen [2002] NSWCA 333 per Handley and Hodgson JJA.Conversely, leave of the court is usually required to withdraw an offer made under the rules: see 27.74 above.

27.115 Depending on the terms of the rules, a further difference between a Calderbank offer and an offer under the rules might be that a Calderbank offer may include terms which could not be included in an offer made under the rules. For example,in Commonwealth v Gretton,211 the terms of the Calderbank offer included that the offeree not disclose those terms in circumstances where other litigation arising out of the same event was still pendant. Such an offer could not have been made under the Uniform Civil Procedure Rules. Beazley JA, with whom Mason P agreed, did not accept that the inclusion of this term by the offeror was necessarily unreasonable. However, the inclusion of such a term was relevant to the exercise of the court’s discretion, and whether the offeror could nevertheless discharge its onus of showing that it was entitled to the costs order it sought.212

211 Commonwealth v Gretton [2008] NSWCA 117 at [92]–[93]

per Beazley JA (Mason P agreeing).

212 Commonwealth v Gretton [2008] NSWCA 117 at [94]–[95]

per Beazley JA (Mason P agreeing).

Comparing an offer with a judgment

27.116 Where an offer is relevant to the application of the court rules concerning costs, or to the exercise of the court’s discretion as to costs, the court must compare the offer against the judgment obtained. This is so, irrespective of whether the offer was made under the rules, Calderbank principles, or otherwise.

27.117 Where the offer and judgment are both in monetary terms, this may be a straightforward task. In other circumstances, the comparison may be more difficult. For example, a judgment may award non-monetary relief, or the offer may include a condition which the court could not have ordered. The critical question for the court in such circumstances is that posed by the English Court of Appeal in Roache v News Group Newspapers Ltd:213 Who, as a matter of substance and reality, had won? Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Had the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?

Although the Court of Appeal was concerned there with a payment into court, this approach has been applied to issues of comparison in Australia. In Timms v Clift,214

Page 1085

Page 45 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle the judgment sum substantially exceeded the offer. However, it had been argued that the costs consequences of an unaccepted offer should not apply because the offer included a requirement that an apology be published, an element not quantifiable in monetary terms, and thus (it was submitted) it could not be said to be ‘no less favourable’. The Queensland Court of Appeal referred to Roache, and continued:215 Although the question considered in that case arose in a context different from the present, the line of reasoning is applicable here; the expression ‘a judgment no less favourable’ in r 118 does not in our opinion exclude from consideration relief sought other than money claims. For example, if an action was brought relating to the winding up of a partnership, various items of relief might be claimed, including declaratory relief; it would be a matter for the Court’s judgment as to whether, an offer to settle having been made, the effect of the judgment overall was ‘no less favourable’ to the plaintiff than the offer.

In that case, although no apology could have been ordered via the judgment, the court concluded that the judgment ‘including ample vindication of the respondent’s position, was more favourable’, such that the rule concerning the usual costs consequences of a rejected offer was engaged. This approach has been followed by courts undertaking comparisons under other (differently worded) rules and statutory provisions concerning costs, and in the context of Calderbank letters.216

213 [1992] TLR 551

.

214 [1998] 2 Qd R 100

.

215 [1998] 2 Qd R 100

(per curiam).

216 Stambulich v Ekamper (2001) 48 ATR 159; [2001] WASCA 283 at [97]–[98] per Templeman J (Malcolm CJ and Kennedy J agreeing); Manefield v Association of Quality Child Care Centres of NSW Incorporated (t/as Child Care NSW) [2011] NSWSC 104 at [38]–[45] 1450 at [25]–[26]

per Kirby J; Metz Holdings Pty Ltd v Simmac Pty Ltd (No 3) [2011] FCA

and see also [13]–[19] and [21] for the submissions on the question per Barker J; Balnaves v

Smith [2012] QSC 408 at [30]–[50] per Byrne SJA. As to comparison of offers and judgments concerning nonmonetary relief, see also Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA 433 at [19]–[29] J.

per Mansfield J; Eatock v Bolt (No 2) [2011] FCA 1180 at [36]–[46]

per Bromberg

Prohibition on disclosure of an offer to settle prior to judgment

27.118 The system of offers to settle is founded on the idea that a party who has declined an offer to settle is taking the risk of adverse costs consequences, should it fail to better the offer at the trial. This system can work fairly only if the court decides the merits of the case independently of costs consequences.

27.119 In all jurisdictions, the rules provide that unless expressly stated, offers to settle will be without prejudice.217 This means that the content of the offer is inadmissible in evidence and may not be disclosed to the court.218

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Page 46 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle

217 Federal Court Rules 2011 (Cth) r 25.05(4); Court Procedures Rules 2006 (ACT) r 1002(7); Uniform Civil Procedure Rules 2005 (NSW) r 20.26(9); Supreme Court Rules (NT) r 26.04; Uniform Civil Procedure Rules 1999 (Qld) r 356; Supreme Court Civil Rules 2006 (SA) r 187(6a); Supreme Court Rules 2000 (Tas) r 285; Supreme Court (General Civil Procedure) Rules 2015(Vic) r 26.04; Rules of the Supreme Court 1971 (WA) O 24A r 6. 218 See 27.23–27.25 above; see also Chapter 17.

27.120 Further, the rules of court in most jurisdictions also provide specifically that the fact that an offer has been made may not be disclosed to the court at trial, nor referred to in any pleading or affidavit.219 The rules provide a variety of exceptions to this;220 disclosure after judgment is a common exception to the rule, for the obvious reason that it will then be relevant to the exercise of the court’s jurisdiction as to costs. Various other exceptions are identified in the rules of one or more jurisdictions, including where there has been a failure to comply with the offer, or where there is an application to withdraw the offer or withdraw acceptance. It is suggested that where the rules provide for an application procedure in respect of a failure to comply with an offer, or to withdraw an offer or acceptance, then the offer must be able to be disclosed to the court hearing that application, even if the rules do not contain a specific provision to that effect.

219 Federal Court Rules 2011 (Cth) r 25.06(1) and (2) (note that this rule precludes any disclosure to the court, not only disclosure at trial); Court Procedures Rules 2006 (ACT) r 1006(1) and (2); Uniform Civil Procedure Rules 2005 (NSW) r 20.30(1) and (2); Supreme Court Rules (NT) r 26.05(1) and (2); Uniform Civil Procedure Rules 1999 (Qld) r 357(1) and (3); Supreme Court Rules 2000 (Tas) r 286(1) and (2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.05(1) and (2); Rules of the Supreme Court 1971 (WA) O 24A r 7(1) and (2). The South Australian rules are slightly different, providing instead that ‘no reference to the terms of a formal offer is to be made in any pleading, affidavit or other document filed or lodged with the Court’; this does not, on its face, prevent reference to the fact of an offer having been made: Supreme Court Civil Rules 2006 (SA) r 188B(1)(a). 220 Federal Court Rules 2011 (Cth) r 25.06(2); Court Procedures Rules 2006 (ACT) r 1006(3); Uniform Civil Procedure Rules 2005 (NSW) r 20.30(3); Supreme Court Rules (NT) r 26.05(2); Uniform Civil Procedure Rules 1999 (Qld) rr 357(4), 357(1) and 365; Supreme Court Civil Rules 2006 (SA) r 188B; Supreme Court Rules 2000 (Tas) r 286(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.05(2); Rules of the Supreme Court 1971 (WA) O 24A r 7(2).

27.121 It is suggested that there may be good policy reasons to enable disclosure at an interim application of the fact that a party has made an offer under the rules, if it is relevant to an issue arising in such application. For instance, an offer could be relevant to the issue of irreparable harm in an application for an interim injunction.221 In some circumstances, the existence or content of an offer to settle could be relevant to case management decisions. This appears to be the position in England in respect of offers under the rules.222 On the current rules in most jurisdictions, this would not be possible because of the ‘without prejudice’ status of the offer.223 Great care would, of course, need to be taken to ensure that disclosure during a pre-trial stage was not communicated to the trial judge and that it in no way affected the outcome of the decision on the merits. But if this could be assured,there may well be a good case for permitting the disclosure of offers to settle in certain, limited, interlocutory contexts.

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221 For irreparable harm, see Chapter 10, 10.42–10.54. 222 Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, [26.97].

Page 47 of 47 Chapter 27 Obtaining Protection from Costs by an Offer to Settle 223 Macplan Logistics Systems Pty Ltd v Baxter Healthcare Pty Ltd (1996) 39 NSWLR 324 . See also the provisions in the Evidence Act in several jurisdictions: 27.24 above. In the Federal Court, it is also precluded by the general rule that the fact or content of an offer must not be communicated to the court generally (not just at trial): Federal Court Rules 2011 (Cth) r 25.06(2).

Conclusion

27.122 All Australian jurisdictions facilitate a party’s efforts to protect its costs position by making an offer to settle — through Calderbank letters, offers to settle, and the largely superseded procedure of payments into court. These rules confer a number of benefits: enabling parties (particularly defendants) to protect themselves from adverse costs orders, facilitating settlement (with private and public costs savings), and promoting certainty.

27.123 As has been discussed in this chapter, though, the present state of the law and rules in most jurisdictions tends towards discretion (and therefore fairness in the instant case) rather than certainty of outcome. For example, the continued use of Calderbank letters, the uncertainty about when the court will depart from the default orders in the event that an offer is made under the rules (in particular, whether exceptional circumstances are required before the court will order otherwise) and anomalous results under certain rules all have a tendency to undermine certainty. Further, in all jurisdictions, the costs consequences of failing to accept an offer under the rules are far less onerous than under the equivalent rule in England.224 There is, therefore, scope in the Australian rules of court to take further steps to promote settlement through the use of offers to settle.

224 CPR 36; see generally Zuckerman on Civil Procedure, 3rd ed, Sweet & Maxwell, London, 2013, Ch 27.

End of Document

Chapter 28 Costs Zuckerman on Australian Civil Procedure 2018 (book)

Zuckerman on Australian Civil Procedure 2018 (book) > Chapter 28 — Costs

Chapter 28 Costs Page 1089 [Current to May 2018]

Basic concepts Introduction

28.1 The subject of costs, which would deserve only modest attention in a well-balanced system, requires extensive treatment in Australia. Far from being incidental to the substantive issues in civil proceedings, the various aspects of litigation costs occupy a central place in the Australian administration of civil justice. Issues concerning who should bear litigation costs, and their calculation, can themselves give rise to litigation, which is liable occasionally to be more extensive and costly than the litigation over the underlying dispute. Despite efforts of rule-makers to introduce procedural reforms aimed at reducing the cost of civil proceedings1 the cost of litigation in Australia remains high, and is prohibitive for many.2 In 2014, the Australian civil justice system was ranked by the World Justice Project as amongst the worst performers in the OECD on the criterion of ‘accessibility and affordability’.3 It is therefore necessary to preface this subject by saying something about the phenomenon of high litigation costs.

1

See generally Chapter 1.

2

Australian Government Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, pp 114–24.

3

World Justice Project, 184; referred to by the Australian Government Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, 5 September 2014, p 115.

28.2 It is natural that providers of professional services should tend to generate an upward pressure on the cost of their services. However, such a tendency is normally counterbalanced by resistance on the part of the users of professional services.In an efficient market, the price of the service will reach a level that accommodates the interests of both users and providers. This is not, however, the case in the area of litigation legal services. The reasons are many and complex and include such factors as restrictions on the size of the legal profession, and the need to uphold the interests of the administration of justice.

28.3

Page 2 of 137 Chapter 28 Costs Crucially, though, the market for legal services has features which impede efficiency.4 First, there is information asymmetry between the providers of legal

Page 1090 services, and their clients. Since most clients have little knowledge of the law and are infrequent users of litigation legal services, they are unlikely to be able to assess value for money offered by lawyers. It is well-nigh impossible for lay persons to compare the overall cost and quality of legal services offered by different lawyers. Legal services are often described as a ‘credence good’, because it might be difficult to assess the quality of the service even after it has been provided.5 A ‘win’ or ‘loss’ in litigation is not necessarily a reflection of the lawyer’s skill, nor of the time and effort that they properly expended on the matter. Further, clients are rarely able to form a reliable judgment about the quality of the advice provided by lawyers, be it concerning litigation as compared to mediation or which procedural steps should be taken.6 This leads to the second problem, which may be described as a ‘principal/agent’ problem. The interests of the lawyer and the interests of the client are not perfectly aligned, and nowhere is this more apparent than in the field of costs, where the client’s interest is that costs remain low, whereas its legal representatives are likely to benefit financially from running higher costs. Lawyers’ fees and billing practices are, of course, restricted by law and professional obligations, but the fact remains that the more complex and protracted litigation becomes, the more lawyers earn. It is difficult for any system of regulation to correct entirely all of the sources of inefficiency which are created by lawyers’economic incentives to maximise income. Concerns about the information asymmetry between lawyers and their clients led the Productivity Commission in 2014 to recommend various measures for the protection of consumers.7

4

For a discussion of the market failures which affect the legal profession, see F H Stephen, Lawyers, Markets and Regulation, Edward Elgar, Cheltenham, 2013, especially pp 12–16.

5

F H Stephen, Lawyers, Markets and Regulation, Edward Elgar, Cheltenham, 2013, p 13.

6

Cf F H Stephen, Lawyers, Markets and Regulation, Edward Elgar, Cheltenham, 2013, pp 14–15.

7

Australian Government Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, pp 43–5.

28.4 The goal of keeping down the cost of litigation forms a central part of the overriding objective8 and should therefore be one of the principal aims of court control of litigation. The court may express its approval or disapproval of the way that the parties or their legal representatives have conducted themselves before and during litigation by means of adverse costs orders. Whenever the court makes an interim or a final decision, it may look back and assess the parties’ conduct in order to determine who should pay the costs of the proceedings and on what basis they should be calculated.Yet such measures appear to have contributed little to bringing down the costs of litigation.

8

See generally Chapter 1.

Overarching principles

28.5 The allocation of costs between parties to litigation continues to be governed substantially by the traditional indemnity principle, which has three limbs. First, the successful party is normally entitled to recover its litigation costs from the unsuccessful party. Secondly, the receiving party is not entitled to claim as costs more than it has actually spent or are duty-bound to pay its own lawyers. Thirdly, the receiving party is only entitled to recover costs that were reasonably incurred and that are reasonable in amount.

Page 3 of 137 Chapter 28 Costs

Page 1091

28.6 These principles must now be considered in light of recent modifications to the rules and law. One substantial development has been the introduction of requirements that litigation be conducted in a proportionate manner — specifically,at proportionate cost. Although this requirement exists in the overriding objective in all jurisdictions,9 it has been criticised as being essentially ‘aspirational’,10 and therefore unlikely to generate real change in litigation practice. More concrete requirements exist in some jurisdictions. In the Federal Court, the requirement of proportionate cost in the overriding objective must be taken into account by the court in the exercise of its discretion as to costs.11 In New South Wales and Victoria, the Legal Profession Uniform Law has provided that legal practices may only ‘charge costs that are no more than fair and reasonable in the circumstances’, and which are proportionate and reasonable to be incurred, and in amount.12 These principles also apply to the assessment of costs on an inter partes basis.13

9

See generally Chapter 1.

10 Yara Australia Pty Ltd v Radhika Pankaj Oswal [2013] VSCA 337 at [17]

(per curiam).

11 Brooke & McKenzie Pty Ltd v El-Gra Engineering Pty Ltd (2015) 331 ALR 535; [2015] FCA 1495 at [20]–[22] Middleton J.

per

12 Legal Profession Uniform Law (NSW) s 172; Legal Profession Uniform Law (Vic) s 172. 13 Legal Profession Uniform Law (NSW) ss 199(2) and 200; Legal Profession Uniform Law (Vic) ss 199(2) and 200.

28.7 In Victoria, there is further provision enabling the court to take into account, in the exercise of its costs discretion, any breaches of the overarching obligations,14 and to order that any person who breaches an overarching obligation pay legal costs caused by the breach, and/or compensate any loss caused by the breach (amongst other orders).15 This latter power is currently unique in Australia.16 The Court of Appeal observed in Yara Australia Pty Ltd v Radhika Pankaj Oswal that the power to impose costs and other sanctions on parties who failed to comply with the overarching obligation ‘has both compensatory and punitive elements’.17 This is a marked departure from the traditional view that the purpose of costs orders is to provide an indemnity to the successful party, and is thus purely compensatory.18

14 Civil Procedure Act 2010 (Vic) s 28. 15 Civil Procedure Act 2010 (Vic) s 29. 16 Yara Australia Pty Ltd v Radhika Pankaj Oswal [2013] VSCA 337 at [17]

(per curiam).

17 Yara Australia Pty Ltd v Radhika Pankaj Oswal [2013] VSCA 337 at [24] Scholastic Cleaning and Consultancy Services (No 4) [2013] VSC 14 at [5]–[7]

(per curiam),citing Hudspeth and per Dixon J.

18 See, for example, Cilli v Abbott (1981) 53 FLR 108 at 111 (per curiam); Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, 562–3 per Toohey J, 566–7 per McHugh J; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67]–[68]

per McHugh J (Brennan CJ agreeing), but cf at [44] per Gaudron and Gummow JJ.

Page 4 of 137 Chapter 28 Costs

28.8 Proportionality of cost is furthered in other ways in modern rules of court. For example, rules aimed at the early identification of issues,19 or limiting discovery,20 have a tendency to reduce costs either by promoting settlement or by reducing the extent

Page 1092 of interlocutory stages of litigation. Court rules prescribe scale costs in all jurisdictions except New South Wales.21 Courts may order fixed costs rather than order taxation. This serves the purpose of proportionality of costs where the cost of the taxation exercise itself would be disproportionate.22

19 Such as the ‘genuine steps’ statement in the Federal Court: Civil Dispute Resolution Act 2011 (Cth) ss 6 and 7; Federal Court Rules 2011 (Cth) rr 8.02 and 5.03. 20 See, for example, the practice note in the New South Wales Equity Division limiting the circumstances in which disclosure will be ordered: Practice Note No SC EQ 11: Disclosure in the Equity Division (issued 22 March 2012). 21 See 28.126–28.128 below as to the use of court scales in assessing the reasonableness of costs. 22 See, for example, Beach Petroleum NL & Claremont Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123 ; see also the discussion in Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No 2) [2010] FCA 455 at [3]–[8] per Middleton J.

28.9 These innovations have added to the complexity of an already intricate subject. Furthermore, in addition to legislation, rules of court and common law, costs are also dealt with by the codes of the professional bodies which regulate the Australian legal profession.

28.10 The court’s jurisdiction over costs encompasses costs payable by one party to another as a consequence of litigation (known as inter partes costs), the entitlement to which arises only from a court order or an agreement between the parties. The court’s jurisdiction over costs may also encompass the costs payable by clients to their own solicitors (known as solicitor and own client costs), which are otherwise a matter of contract between them. However, while the entitlement to recover the cost of litigation from another party (or indeed a third party) can only arise from a court order or agreement between the parties, the amount payable could be influenced by the agreement between the party entitled to costs (the receiving party) and its solicitors.

28.11 Legislation regulating the legal profession contains provisions concerning lawyers’ duties in relation to billing and legal costs, and the procedure for assessment.23 The present work provides an overview of the provisions governing the type of agreement that a solicitor may enter with the client concerning litigation fees and the principles applicable to the assessment of bills presented by solicitors to their own clients.24

Page 5 of 137 Chapter 28 Costs 23 See generally 28.298–28.313 below in relation to solicitor and own client costs. 24 For a comprehensive account of this topic, see G Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Sydney, 2013, Ch 5.

28.12 It is impossible to provide a comprehensive account of the subject in the present framework. The main aim of this chapter is to outline the principles governing the exercise of the jurisdiction to order one party (or, occasionally, a non-party)to pay another party’s litigation costs, and the principles governing the level of costs that are recoverable under such orders. This involves a discussion of the modern devices of conditional costs agreements and third party litigation funding,which are relatively new developments that have the potential to effect significant change in the area of costs. The treatment of the subject will be kept at the level of general principles and rules.

The court’s power to award costs

28.13 Unless the parties have agreed the costs consequences of civil proceedings, an entitlement to costs can only arise from a court order. In each jurisdiction, the

Page 1093 power of the Supreme Court to award costs is provided for by statute and/or the rules of court.25 The court has a very wide discretionary jurisdiction to determine by whom and to what extent the costs of proceedings should be paid; for example, several jurisdictions follow the pattern of the South Australian Supreme Court Act 1935 in providing simply that:26 40 — Power of court with regard to costs (1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed,the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.

25 Federal Court of Australia Act 1976 (Cth) s 43; Court Procedures Rules 2006 (ACT) r 1721; Civil Procedure Act 2005 (NSW) s 98; Supreme Court Rules (NT) r 63.03; Uniform Civil Procedure Rules 1999 (Qld) rr 681 and 682; Supreme Court Act 1935 (SA) s 40(1); Supreme Court Civil Procedure Act 1932 (Tas) s 12; Supreme Court Act 1986 (Vic) s 24; Supreme Court Act 1935 (WA) s 37. 26 Supreme Court Act 1935 (SA) s 40(1).

28.14 In each jurisdiction, the court not only has discretion whether or not to order the payment of costs, it also has discretion to decide by whom costs should be paid and to whom, and it has discretion to determine the amount of costs to be paid and the time of payment. The court may even order a non-party to pay the litigation costs of a party.27 In some jurisdictions, these matters are expressly provided for. However, even where statute or rules confer discretion on a superior court only in general terms, such as those set out above, the power ought to be interpreted widely, rather than being subject to implicit limitations.28

Page 6 of 137 Chapter 28 Costs

27 See Knight v FP Special Assets (1992) 174 CLR 178 at 192–3 per Mason CJ and Deane J as to some of the categories of case in which the court will order costs against a third party; see also at 198–200 per Dawson J. The ability of the court to order a non-party to pay costs is discussed further below. 28 Knight v FP Special Assets (1992) 174 CLR 178 at 185,190 per Gaudron J.

per Mason CJ and Deane J, 202–3 per Dawson J, 205

28.15 Nevertheless, the exercise of discretion is governed by the rules of court, which sometimes prescribe ‘default’ costs orders which will be made unless the court otherwise orders. The discretion must also be exercised judicially,29 which means that the exercise of the discretion as to costs will be guided by established common law principles. Such an approach is necessary to ensure consistency of judicial decision-making.30

29 Donald Campbell & Co Ltd v Pollak [1927] AC 732 Phillimore agreeing), 813–14 per Lord Atkinson. 30 Norbis v Norbis (1986) 161 CLR 513 at 519

at 809

per Viscount Cave LC (Viscount Dunedin and Lord

per Mason CJ and Deane J; Latoudis v Casey (1990) 170 CLR 534

at 558 per Dawson J.

28.16 However, because the statute confers a discretion in all jurisdictions, courts have continuously emphasised that even well-settled common law principles concerning the allocation of costs are guiding principles, and must not be treated as settled legal rules. In Norbis v Norbis, Brennan J explained the difference between principles and

Page 1094 rules in circumstances where a court is called upon to exercise a discretion which has been conferred by statute:31 It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise. …

In Oshlack v Richmond River Council, Gaudron and Gummow JJ confirmed the applicability of that approach to the exercise of the costs discretion (specifically, in that case, the recognition of ‘a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary’).32 Consequently, it must be emphasised that, aside from rules of court and legislative provisions which make specific provision for the allocation of costs in particular circumstances, the allocation of costs is always factually contingent and subject to the exercise of a judicially constrained discretion.

Page 7 of 137 Chapter 28 Costs 31 (1986) 161 CLR 513 at 537; see also at 533–4 per Wilson and Dawson JJ. But cf at 519 per Mason CJ and Deane J and Latoudis v Casey (1990) 170 CLR 534 making.

at 558 per Dawson J as to the need for consistency in judicial decision-

32 Oshlack v Richmond River Council (1998) 193 CLR 72 at [35]

; but cf Norbis v Norbis (1986) 161 CLR 513 at 519

per Mason CJ and Deane J and Latoudis v Casey (1990) 170 CLR 534 at 541–2

per Mason CJ.

Terminology

28.17 In the area of costs, as in other areas of civil procedure, the terminology used by rules of court varies between jurisdictions. This section aims only to identify some important terms which are used in discussing costs, to identify some ambiguities which can lead to confusion, and to define terminology for the remainder of the chapter.

28.18 The term ‘costs’ itself may be used to mean different things in different contexts. For example, the term ‘costs’ may sometimes be used to refer to the amount paid by a client to its solicitor. In this text, these sorts of costs will be referred to as ‘solicitor and own client costs’. In other contexts, the term ‘costs’ may be used to refer to the amount payable by one party to another in litigation. Most jurisdictions contain some definition of costs in its rules and/or statute, but those definitions are not necessarily complete.33 For example, in New South Wales, the Civil Procedure Act 2005 provides that ‘costs … means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration’; contrast the Federal Court Rules, which provide only that ‘costs … means costs between party and party’, and the Northern Territory rules, which provide only that ‘costs includes disbursements’. In considering cost principles emerging from rules and case law, it is therefore important to bear in mind the definition of costs which is applicable in that jurisdiction, and the context, to avoid misunderstanding.

Page 1095

33 Federal Court Rules 2011 (Cth) Dictionary; Court Procedures Rules 2006 (ACT) r 1700; Civil Procedure Act 2005 (NSW) s 3(1); Supreme Court Rules (NT) r 63.01(1); Supreme Court Civil Rules 2006 (SA) r 4; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.01(1); Rules of the Supreme Court 1971 (WA) O 1 r 4(1).

28.19 A distinction is sometimes drawn between costs and disbursements; the two forms of expense may also be referred to as fees and disbursements. Disbursements are payments made by solicitors on behalf of clients, and are therefore distinguishable from costs or fees, which, in this context, are limited to the fees charged by the solicitor for their own work. Counsel fees, court fees, and fees for expert witnesses are common examples of disbursements.

28.20 There is an important difference between the legal costs (fees and disbursements) that a client must pay its solicitor, and the costs that a party to litigation must pay its opponent if a costs order is made against it. The former

Page 8 of 137 Chapter 28 Costs are referred to in this text as ‘solicitor and own client costs’. They are the costs that the client is obliged to pay its own lawyer, pursuant to the terms of the retainer agreement.

28.21 If the client is successful in litigation, and is entitled to costs, the amount it will receive in costs from its opponent — the costs payable inter partes — will almost always be less than the solicitor and own client costs. The basis for quantifying costs inter partes is considered separately below.

Types of costs orders

28.22 The court has wide discretion in allocating the costs. It may decline to make any order, in which case each party will bear its own costs. If it does decide to order costs to be paid by one party to another, it may do so in a variety of ways.In some jurisdictions, the rules make express provision for the court’s power to make these sorts of orders. However, even where the rules do not expressly confer on the court the power to make particular types of orders, the court’s general discretion ought to be widely construed. The orders which are discussed below are all well established as orders which the court may make in the exercise of the general discretion as to costs. For example, it may award a party all of its costs, or only part of them. Where the court orders part only of the costs, it may use a variety of criteria for defining the part. The court may, for instance, order that one party pay to another a proportion of the whole costs, or the costs of particular issues,or the costs of particular stages in the proceedings. Moreover, the court may make an outright award or make the award conditional on some future event, such as the outcome of the proceedings. There is, therefore, a very large number of costs orders that the court may make. It is not necessary to list all of them, but it would be useful to mention some of the terminology that is often used in this regard.

28.23 Some costs orders are specific to interlocutory applications. The court may choose to make an order concerning the costs of an interlocutory application at the conclusion of that application, in which case it has a number of choices open to it. It may decide to make a final order disposing of the costs question there and then. One order which would dispose of the question of costs would be for the court to award the costs of the hearing to one party outright, in which case the court will make an order of costs or costs in any event in favour of one of the parties. Such an order means that the party in whose favour the order is made is entitled to costs in respect of the part of the proceedings to which the order relates, regardless of whether that party obtains

Page 1096 a favourable judgment at the end of the proceedings and regardless of any subsequent costs orders that the court may make. Alternatively,if the court decides that no party is entitled to a costs order in its favour, it may direct no order as to costs or each party to pay their own costs, in which case each party would have to bear its own costs of the application hearing; again, regardless of the final result of the proceedings and of any final costs order. Each of these orders — costs in any event or no order as to costs — will finally dispose of the question of costs of the interlocutory application.

28.24 However, the court may make liability for the costs of the interim application dependent on the eventual outcome of the case. To this end, the court may order costs in the cause or costs in the proceeding, which means that

Page 9 of 137 Chapter 28 Costs whichever party is awarded costs at the end of the proceedings will also be entitled to its costs in the application to which the costs order relates. There is a further option in this regard. The court may make an order of plaintiff’s/defendant’s costs in the cause. If such an order is made in favour of the plaintiff (for example), it means that if the plaintiff is awarded costs at the end of the proceedings,it will also be entitled to its costs of the interim application to which the order relates. However, if any other party is awarded costs at the end of the proceedings, that party is not liable to pay the costs of the plaintiff in respect of the part of the proceedings to which the order relates. It and the plaintiff will each bearits its own costs.34 An equivalent order may be made in favour of the defendant, which would be defendant’s costs in the cause.

34 Lord Denning MR described the difference between various costs orders which may be made in interlocutory applications in J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547

at 1552–3

.

28.25 Alternatively, a court hearing an interlocutory application may decide not to deal with the incidence of costs at that stage but leave it to be determined at a later stage, in which case it will make an order of costs reserved. As the name suggests, an order of costs reserved means that the court intends to revisit the question of costs and make a new order at a later date.

28.26 In some jurisdictions, provision is made for a ‘default’ order, if the costs of the interlocutory hearing are reserved, but no subsequent order is made.35 In the Australian Capital Territory,36 South Australia37 and Victoria,38 costs reserved will be treated as costs in the cause (described as ‘follow[ing] the event of the action’ in the language of the South Australian rules and costs in the proceeding in the Victorian terminology). Conversely, in the Federal Court,39 Queensland40 and Tasmania,41 costs reserved will follow the event unless the court otherwise orders. This means that the party who is successful in the interlocutory hearing — the event for this purpose — will receive its costs.42

Page 1097

35 Cf Supreme Court Rules (NT) r 63.20. 36 Court Procedures Rules 2006 (ACT) r 1728. 37 Supreme Court Civil Rules 2006 (SA) r 268. 38 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.22. 39 Federal Court Rules 2011 (Cth) r 40.03. 40 Uniform Civil Procedure Rules 1999 (Qld) r 698. 41 Supreme Court Rules 2000 (Tas) r 67. 42 See, for example, Returned and Services League of Australia (Queensland Branch) Sarina Sub Branch Inc v Returned and Services League of Australia (Queensland Branch) (No 2) (2012) 207 FCR 594; [2012] FCA 1138

.

Page 10 of 137 Chapter 28 Costs

28.27 In some jurisdictions, the rules provide for a default order in the event that the court makes no order for the costs of an interlocutory hearing. In Victoria,43 the costs of an interlocutory application will be costs in the proceeding where no order as to costs is made at the time of the application. Conversely, in the Federal Court, costs will follow the event (of the interlocutory application) if an order is made in favour of any party, but will otherwise be costs in the cause.44

43 Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20. 44 Federal Court Rules 2011 (Cth) r 40.04.

28.28 There are a number of orders that the court may make when an interim decision has certain consequential effects. One such order is in respect of costs thrown away, which may be made, for example, where a judgment or order is set aside. Suppose that the plaintiff obtains a judgment in default of a defence. The defendant accepts that it was at fault in not serving a defence but manages to persuade the court to give it another chance to defend and to set aside the default judgment.45 The court may order the defendant to compensate the plaintiff for the costs it has incurred in attending the hearing and in trying to enforce the default judgment which has now been set aside. Costs thrown away may also be ordered against a party who has been granted an adjournment, in favour of its opponent who was ready to proceed on the allotted day, and whose costs of preparation may have been wasted (in whole or part).46 The court may similarly make an order of costs of and caused by a particular interim decision. For example, where it gives the plaintiff permission to amend its pleadings, the court may order it to pay the defendant’s costs of preparing for and attending the application and the costs of any consequential amendment to its defence. Another order which may be made, especially where one party has necessitated another’s expenditure of costs (such as an application for adjournment) is an order for costs of the day, which includes attendance at the hearing in question, and preparation for the hearing.

45 For the circumstances in which a court will set aside a default judgment, see generally Chapter 9, 9.38–9.55. 46 Sobey v Commissioner of Taxation [2008] FCA 1621 at [21]

per Kenny J.

28.29 In some cases, court rules make provision for one of these orders to be the ‘default’ order on the occurrence of particular events. For example, in Queensland and South Australia, a party who applies to extend time must pay the costs of that application, unless the court otherwise orders.47 There are also common law principles concerning the usual order when particular interlocutory proceedings are concluded in a particular manner. For example, where a party has unsuccessfully applied for summary judgment, the court will usually order costs in the cause, or costs reserved.48 Following applications for interlocutory injunctions the usual order will be costs in the cause, or costs reserved.49 Again, though, exceptions may be made to these general rules, and the court has the power to otherwise order if the justice of the case requires.

Page 1098

Page 11 of 137 Chapter 28 Costs

47 Uniform Civil Procedure Rules 1999 (Qld) r 695; Supreme Court Civil Rules 2006 (SA) r 263(2)(a). 48 See Dale v Clayton Utz (No 3) [2013] VSC 593 at [15]–[17] this rule, and the exceptions to it.

per Hollingworth J for an explanation of the rationale for

49 See Dale v Clayton Utz (No 3) [2013] VSC 593 at [18]–[22] this rule, and the exceptions to it.

per Hollingworth J for an explanation of the rationale for

28.30 When an order is made for the costs of the interlocutory application, the costs of that application will usually be assessed and paid only at the conclusion of the proceeding.50 The rules of court sometimes include provision to confirm that that will be the usual position, unless the court otherwise orders.51 The rationale for such a rule was explained by Hollingworth J as being:52 (a)

Avoiding multiple taxations, and the attendant costs;

(b)

Avoiding interlocutory applications being used as a means to exhaust the funds of an opposing party; and

(c)

Avoiding unfairness in a case where, for example, a party who is ultimately successful is unable to set off their judgment against an earlier liability to pay costs.

The unfairness referred to in the last rationale arises because:53 … since an interlocutory proceeding does not resolve the final issues between the parties, it would, in ordinary circumstances, be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately,since that party might ultimately be entitled to an order for costs in the substantive proceeding.

However, immediate taxation may be ordered by the court, where the justice of the case demands.

50 Oswal v Commissioner of Taxation (No 5) [2016] FCA 916 at [8]

per Pagone J.

51 Federal Court Rules 2011 (Cth) r 40.13; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 (and see Dale v Clayton Utz (No 3) [2013] VSC 593 at [56]–[58] in Victoria). 52 Dale v Clayton Utz (No 3) [2013] VSC 593 at [58]

for the proposition that this was intended to alter the position

per Hollingworth J and the cases there cited.

53 Brasington v Overton Investments Pty Ltd [2001] FCA 571 at [13] Taxation (No 5) [2016] FCA 916 at [8] new Federal Court Rules.

per Emmett J; see also Oswal v Commissioner of

per Pagone J, where the same rationale was applied in the context of the

28.31 Where a party has succeeded on a discrete issue, such as where part of the proceedings have been heard and determined separately on their merits, it may be appropriate to order that costs be paid before the entire proceedings have concluded.54 In such circumstances, it has been said that ‘[i]t would be wrong if … successful parties do not enjoy the fruits of their order for costs for such a long time’.55 The Victorian Court of Appeal has summarised the circumstances in which immediate taxation may be appropriate as being where:56

Page 12 of 137 Chapter 28 Costs

(1) there is prospect of considerable delay in completion of the proceeding; (2) the issue the subject of the interlocutory order was discrete from what will finally require determinations; (3) the party against whom the substantive order was made was guilty of unsatisfactory conduct — described variously as ‘unreasonable’ or ‘reprehensible’, or as involving a want of ‘competence and diligence’.

54 Amalia Investments Ltd v Virgtel Global Networks NV [2011] FCA 409 at [22]–[25]

per Greenwood J.

55 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 13) (FCA, Lockhart, Lindgren and Tamberlin JJ, 17 August 1995, unreported). 56 Setka v Honourable Tony Abbott MP [2013] VSCA 376 at [27]

, citing with approval the explanation of these

principles by Hollingworth J in Dale v Clayton Utz (No 3) [2013] VSC 593

.

28.32 There are also orders which are specific to hearings on appeal. Where a rehearing is ordered following an appeal, an order may be made for costs in the rehearing, which

Page 1099 means that the cost of the appeal will be awarded to the party who is successful on the rehearing. An order of costs here and below means that the party in whose favour the order is made is entitled not only to its costs in respect of the proceedings in which the court makes the order but also to its costs of the proceedings in any lower court.

Key elements: determination of entitlement, criterion of quantification and taxation

28.33 Unless the parties have agreed the incidence of costs, the process of costs recovery involves three steps. Since the entitlement to costs can arise only from a court order, a party who wishes to recover costs must first obtain an order directing another party (or occasionally a non-party) to pay its litigation costs. The second step involves determining the basis on which costs will be quantified (for example, on a party and party basis, or an indemnity basis). Like the entitlement to costs,the basis of quantification is a matter for court decision. Rules of court often identify presumptions as to the basis on which costs will be quantified.57 The third and final step in the recovery process consists of calculating or quantifying the amount of money that the paying party is liable to pay to the receiving party. The parties are of course free to agree the amount payable in respect of costs. However, in the absence of agreement, the costs may be determined by an officer of the court. This is historically called taxation of costs, but is now called adjudication or assessment in some jurisdictions.58 The court will examine the bill presented by the receiving party and will, generally speaking, allow only costs that have been reasonably incurred and that are reasonable in amount. In most jurisdictions, there is provision for costs to be quantified either in a summary manner, or, alternatively, through a detailed process of assessment.59

57 See 28.94 below as to the default basis of assessment. 58 See G Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Sydney, 2013, [18.1]. 59 See 28.153 below.

Unenforceable costs agreements

Page 13 of 137 Chapter 28 Costs

28.34 Costs agreements between lawyers and their clients are subject to the normal rules governing contracts. Accordingly, a costs agreement may be set aside for the same reasons that any other contract may be set aside, such as where entry into the agreement was procured by misrepresentation.60 However, there are some principles which are particularly relevant to costs agreements. Specifically, costs agreements may be rendered void where they do not comply with the legislation regulating the legal profession in the given jurisdiction,or where they fall foul of the doctrines of maintenance and champerty or abuse of process.

Page 1100

60 The Legal Profession Acts in each jurisdiction (which are discussed further in the next section) specifically provide that costs agreements may be enforced in the same manner as any other contract: Legal Profession Act 2006 (ACT) s 286; Legal Profession Uniform Law (NSW) s 184; Legal Profession Act 2006 (NT) s 321; Legal Profession Act 2007 (Qld) s 326; Legal Practitioners Act 1981 (SA) Sch 3 cl 28; Legal Profession Act 2007 (Tas) s 310; Legal Profession Uniform Law (Vic) s 184; Legal Profession Act 2008 (WA) s 286.

Failure to comply with legislative provisions concerning costs agreements

28.35 Costs agreements between solicitors and their clients are regulated by legislation which is substantially similar across Australian jurisdictions. A costs agreement which does not comply with the legislative requirements is void.61 Costs agreements must be made or evidenced in writing (amongst a limited number of formal requirements).62 However, most of the specific requirements as to the content of costs agreements concern conditional costs agreements, which are discussed separately later in this chapter.63

61 Legal Profession Act 2006 (ACT) s 287(1); Legal Profession Uniform Law (NSW) s 185(1), but see also s 178(1); Legal Profession Act 2006 (NT) s 322(1); Legal Profession Act 2007 (Qld) s 327(1); Legal Practitioners Act 1981 (SA) Sch 3 cl 29(1); Legal Profession Act 2007 (Tas) s 311(1); Legal Profession Uniform Law (Vic) s 178(1);Legal Profession Act 2008 (WA) s 287(1). 62 Legal Profession Act 2006 (ACT) s 282(2), and see s 282 generally; Legal Profession Uniform Law (NSW) s 180(2) and see s 180 generally; Legal Profession Act 2006 (NT) s 317(2) and see s 317 generally; Legal Profession Act 2007 (Qld) s 322(2),and see s 322 generally; Legal Practitioners Act 1981 (SA) Sch 3 cl 24(2) and see cl 24 generally; Legal Profession Act 2007 (Tas) s 306(2) and see s 306 generally; Legal Profession Uniform Law (Vic) s 180(2)and see s 180 generally; Legal Profession Act 2008 (WA) s 282(2), and see s 282 generally. In New South Wales and Victoria, this requirement does not apply to certain categories of client: Legal Profession Uniform Law (NSW) s 170;Legal Profession Uniform Law (Vic) s 170. 63 See 28.189–28.195 below.

28.36 In all jurisdictions except New South Wales and Victoria, the legislation also confers on the court the power to set aside a costs agreement which is not fair and reasonable.64 Without limiting the court’s power to consider relevant matters, the legislation identifies as potentially relevant the circumstances and the parties’ conduct before and after the entry into the agreement, whether the client’s entry into the agreement was affected by fraud or

Page 14 of 137 Chapter 28 Costs misrepresentation by the law practice, and whether the agreement dealt with changes in circumstances which were reasonably foreseeable (amongst other things).

64 Legal Profession Act 2006 (ACT) s 288; Legal Profession Act 2006 (NT) s 323; Legal Profession Act 2007 (Qld) s 328; Legal Practitioners Act 1981 (SA) Sch 3 cl 30; Legal Profession Act 2007 (Tas) s 312; Legal Profession Act 2008 (WA) s 288.

28.37 In New South Wales and Victoria, lawyers must charge only such costs as are fair and reasonable: namely, costs which are ‘proportionately and reasonably incurred’ and ‘proportionate and reasonable in amount’, having regard to the circumstances. However, provided that the lawyer has complied with the obligations of disclosure, and that the agreement otherwise complies with the formalities required by the legislation, the costs agreement itself is ‘prima facie evidence that legal costs disclosed in the agreement are fair and reasonable’.65

65 Legal Profession Uniform Law (NSW) s 172; Legal Profession Uniform Law (Vic) s 172.

28.38 Nevertheless, where an agreement is void, the legislation in each jurisdiction provides that the lawyer may still be entitled to some costs.66 The extent of the lawyer’s

Page 1101 entitlement varies between jurisdictions; in some jurisdictions, for example, the lawyer will be entitled only to scale costs.

66 Legal Profession Act 2006 (ACT) ss 287(2) and 279(b) and (c); Legal Profession Act 2006 (NT) s 21(b) and (c); Legal Profession Act 2007 (Tas)ss 311(2) and 303; Legal Profession Act 2008 (WA) ss 287(2) and 271(b) and (c). Cf Legal Profession Uniform Law (NSW) s 185 and see also s 178(1); Legal Profession Uniform Law (Vic) s 185 and see also s 178(1).

28.39 In addition, legislation provides that the law practice must disclose to the client certain matters concerning costs before the retainer is entered, or as soon as practicable thereafter. The matters which must be disclosed include the basis of charging, an estimate of costs (or, if that is not reasonably practicable, a range, and an explanation of the major variables which will affect costs), the client’s rights with respect to costs, and the means by which the client may dispute the costs, amongst other things.67 A failure to disclose has various consequences, including that the client need not pay legal costs unless they have been adjudicated under the Act, and the client may apply for the agreement to be set aside.68 Significantly, in New South Wales and Victoria, there is a further consequence: the agreement is void.69

Page 15 of 137 Chapter 28 Costs 67 As to the solicitor’s duty of disclosure, see generally 28.300–28.302 below. 68 As to the consequences of failing to comply with the obligation of disclosure, see 28.303 below. 69 Legal Profession Uniform Law (NSW) s 178(1)(a); Legal Profession Uniform Law (Vic) s 178(1)(a).

28.40 Legislation imposes additional disclosure requirements where the retainer is in the nature of a conditional costs agreement; that is, one in which ‘some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate’. Conditional costs agreements are discussed later in this chapter.70

70 See 28.189–28.195 below.

Funding, fee agreements and abuse of process

28.41 Maintenance and champerty have historically been the main instances in which costs are disallowed on grounds of public policy, although as will be seen, the significance of these doctrines has been greatly diminished in Australia. Maintenance consists in supporting the litigation of another person with no legitimate concern or just cause. Champerty consists in the maintenance of another’s litigation for a share in the proceeds of the action. Maintenance and champerty each used to constitute a criminal offence and a tort. The crime and tort have been abolished by statute in the Australian Capital Territory, New South Wales, South Australia and Victoria, and they have likely fallen into obsolescence in the other jurisdictions.71 However, even in those jurisdictions which have abolished the crime and tort, the legislation makes clear that it does not affect any rule of law under which certain contracts are considered to be contrary to public policy or otherwise illegal.Therefore, maintenance and champerty have survived as a rule of public policy capable of rendering a contract unenforceable.

71 Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 203 v Fostif Pty Ltd (2006) 229 CLR 386 at [85]

; but see Campbells Cash and Carry Pty Ltd

per Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing).

28.42 Public policy considerations against allowing non-parties to acquire an interest in the outcome of litigation are no longer as weighty as they were perceived to be

Page 1102 in the past. In the leading case of Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (a case concerning the funding of a class action by a third party, acting for profit), the plurality stated:72 … many people seek profit from assisting the processes of litigation. That a person who hazards funds in litigation wishes to control the litigation is hardly surprising. That someone seeks out those who may have a claim and excites litigation where otherwise there would be none could be condemned as contrary to public policy only if a general rule against the maintenance of actions were to be adopted. But that approach has long since been abandoned …

Page 16 of 137 Chapter 28 Costs

72 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at [89] JJ (Gleeson CJ agreeing).

per Gummow, Hayne and Crennan

28.43 Having said that, it must be stressed that the rule of public policy has not disappeared. In particular, the doctrines of maintenance and champerty underpin the prohibition on lawyers entering into contingency fee agreements — that is,agreements in which the lawyer acquires an interest in the subject matter of litigation; this prohibition is, today, reflected in legislation in all jurisdictions.73

73 See 28.194 below.

28.44 In the leading case of Clyne v New South Wales Bar Association, the High Court distinguished between cases in which the possibility of being remunerated was conditional on the outcome of the litigation (which was permissible) and cases in which the solicitor had an interest in the very subject matter of the litigation:74 … a solicitor may with perfect propriety act for a client who has no means, and expend his own money in payment of counsel’s fees and other outgoings, although he has no prospect of being paid either fees or outgoings except by virtue of a judgment or order against the other party to the proceedings. This, however, is subject to two conditions. One is that he has considered the case and believes that his client has a reasonable cause of action or defence as the case may be. And the other is that he must not in any case bargain with his client for an interest in the subject-matter of litigation, or (what is in subtance [sic] the same thing) for remuneration proportionate to the amount which may be recovered by his client in a proceeding.

74 (1960) 104 CLR 186 at 203 (per curiam) (citations omitted). See Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582 at [50] per Ferguson JA as to the continued applicability of the principle, and its consistency with modern legislative provisions.

28.45 In a recent series of judgments, the Victorian Supreme Court and Court of Appeal have used the doctrine of abuse of process to place limits on the range of permissible costs and funding agreements which may be permitted in class actions. In Bolitho v Banksia Securities (No 4) ,75 the defendant to a class action sought to restrain the solicitor and senior counsel for the class from acting. The solicitor was retained on a conditional costs agreement, which included an uplift fee of 25 per cent (the maximum permitted under the legislation regulating conditional costs agreements).76 The class action was also funded by a third party litigation funder, which was entitled to share up to 30 per cent of the proceeds in the event of success.

Page 17 of 137 Chapter 28 Costs

Page 1103 Entities associated with the solicitor held 45 per cent of the shares in the funder, and a company associated with the wife of the senior counsel held another 45 per cent of the shares.77 Thus, the solicitor had two financial interests in the litigation: via the conditional costs agreement (entered into in his capacity as solicitor), and via the funding agreement.

75 [2014] VSC 582

.

76 Bolitho v Banksia Securities (No 4) [2014] VSC 582 at [6]

.

77 Bolitho v Banksia Securities (No 4) [2014] VSC 582 at [7]–[8]

.

28.46 Ferguson JA observed that the court had an inherent jurisdiction to restrain a lawyer from acting ‘to ensure the due administration of justice and to protect the integrity of the judicial process’; the test for the exercise of this power was:78 … whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

Ferguson JA noted that the distinction which had been drawn in Clyne continued to be relevant; that is, the distinction between arrangements in which ‘lawyers have an interest in protecting their fees’(which are permissible) and those in which lawyers have ‘an interest in the subject matter of the litigation’ (which are not).79 Her Honour considered that the solicitor ought to be restrained from acting, for reasons which are worth replicating in some detail:80 … the legislature has seen fit to place a 25 per cent limit on the uplift fee that may be charged by solicitors acting on a ‘no win no fee’ basis and has banned contingency fees, such that a solicitor may not charge as a fee a percentage of the amount obtained by the client from the litigation. … Here, the [fair-minded, reasonably informed member of the public] is likely to conclude that although the litigation funding agreement success fee would not be payable to [the solicitor] in his capacity as a solicitor, nevertheless it is a contingency fee that would benefit him. The [fair-minded, reasonably informed member of the public] would likely take the view that where the legal practitioner’s interest in the funder is sizeable, it would be inimical to the appearance of justice for lawyers to skirt around the prohibition on contingency fees by this means. The position might be different in circumstances where the lawyer’s interest was more modest, but here the 45 per cent interest and the quantum of the claim take it beyond something that might be seen as insufficiently significant to give rise to concern. The current factual scenario is also to be contrasted with a case where a person who is a lawyer by profession has an interest in the litigation funder but is not the lawyer for the plaintiff in the case that is being funded.

Accordingly, her Honour ordered that both the solicitor and senior counsel be prevented from acting.

Page 1104

78 Bolitho v Banksia Securities (No 4) [2014] VSC 582 at [16(a)]

.

Page 18 of 137 Chapter 28 Costs 79 Bolitho v Banksia Securities (No 4) [2014] VSC 582 at [50]

; see also at [18]–[19].

80 Bolitho v Banksia Securities (No 4) [2014] VSC 582 at [50]–[52] . Her Honour observed that a further difficulty arose because of the ‘number of hats’ the solicitor wore: at [53]. As to the application of this reasoning to the senior counsel (who was also restrained), see at [61].

28.47 The same solicitor was involved in the arrangements at issue in Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd .81 The solicitor was the sole director and shareholder of Melbourne City Investments (MCI). The first instance judge found that MCI had been ‘created … as a vehicle for bringing representative proceedings against listed companies alleging breaches of continuous disclosure obligations’; MCI was to be the lead plaintiff, and would retain the solicitor. Significantly, the first instance judge found that the purpose of commencing the representative proceedings was for the purpose of generating fees for the solicitor.82

81 (2014) 45 VR 585; [2014] VSCA 351

.

82 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [4]–[5] per Maxwell P and Nettle JA. MCI’s loss was less than $700, leading to the inference that the arrangements were not driven by a desire to recover compensation.

28.48 The majority of the Court of Appeal ordered that the proceedings be stayed permanently, as an abuse of process, because the predominant purpose for which they were brought was not legitimate.83 It was illegitimate to use court processes ‘merely to enable income to be generated for solicitors’.84 The majority noted the novelty of the case: no previous case had been cited in which proceedings had been permanently stayed because they had been brought for the predominant purpose of generating solicitor’s fees. But they went on to observe that:85 … that is neither surprising nor significant. In view of the economics of what is involved, there would have been very few cases in the history of Anglo-Australian litigation where a plaintiff has instituted a proceeding with the predominant purpose of enriching its solicitor, and indeed it would probably not have been a realistic possibility until the advent of the modern form of class action litigation during the last 20 years.

83 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [9]–[12] per Maxwell P and Nettle JA for the majority’s reasoning on the question whether the proceedings were brought for a legitimate purpose. This conclusion has been confirmed by the Court of Appeal in the subsequent case of Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 at[45]–[45] (per curiam), although the court left open whether the language used by the majority might have expressed the relevant test too widely. See also Melbourne City Investments Pty Ltd v Myer Holdings Ltd (No 2) [2016] VSC 655 at [130]–[132],[136],[147] per Sifris J. The proceedings there were also stayed as an abuse of process on the basis that they had been brought for the predominant purpose of generating income (albeit not legal fees). 84 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [14] Maxwell P and Nettle JA.

per

Page 19 of 137 Chapter 28 Costs 85 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [21] see also at [22] per Maxwell P and Nettle JA.

, and

The principle that the successful party recovers its costs Costs follow the event — a mere starting point

28.49 Although costs have always been considered to be in the discretion of the court, the general rule has historically been that the court should normally order the

Page 1105 unsuccessful party to pay the successful party’s costs.86 To a large extent, this principle still holds good today. It is reflected in the commonly used expression of costs follow the event. In some jurisdictions, the rules prescribe that costs ought generally to follow the event, unless the court otherwise orders.87

86 Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 809 per Viscount Cave LC (Viscount Dunedin and Lord Phillimore agreeing), at 814 per Lord Atkinson; Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477 (per curiam); Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] McHugh J (Brennan CJ agreeing).

per

87 Uniform Civil Procedure Rules 2005 (NSW) r 42.1; Uniform Civil Procedure Rules 1999 (Qld) r 681; Supreme Court Civil Rules 2006 (SA) r 263(1); Rules of the Supreme Court 1971 (WA)O 66 r 1(1).

28.50 The basic justification for the principle was that a person should not be out of pocket as a result of having to seek court adjudication to vindicate his or her rights.88 The right of a successful party to be indemnified for its legal expenses is all the more important in a system, such as the Australian system, where litigation costs are high and could well exceed the value of the subject matter in dispute.In the absence of the possibility of recovering one’s litigation costs, disputants might be deterred from going to court for fear that even a favourable judgment may be more expensive than giving up the right in question. As a majority of the High Court observed in De L v DirectorGeneral, New South Wales Department of Community Services :89 The power to provide costs is an important one designed to ensure that a court may protect a successful party against the substantial burden of costs which could otherwise render its success nugatory. The crushing burden of costs might be a disincentive to parties prosecuting just and lawful arguments in this Court.

88 Latoudis v Casey (1990) 170 CLR 534 at 543 Cilli v Abbott (1981) 53 FLR 108 at 111 [67]

per Mason CJ, 562–3 per Toohey J, 566–7 per McHugh J; see also

; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at

per McHugh J (Brennan CJ agreeing).

89 (1997) 190 CLR 207 at 221

per Toohey, Gaudron, McHugh, Gummow and Kirby JJ.

Page 20 of 137 Chapter 28 Costs

28.51 There are other justifications for the principle that costs will usually follow the event. In particular, it is said that costs recovery deters plaintiffs from bringing unmeritorious claims, and defendants from making unmeritorious defences.90

90 Oshlack v Richmond River Council (1998) 193 CLR 72 ; [1998] HCA 11 at [68] per McHugh J (Brennan CJ agreeing); the same principle has been explained at greater length in English case law: R v Lord Chancellor; Ex parte Child Poverty Action Group [1998] 2 All ER 755 at 764

per Dyson J.

28.52 The rule that costs follow the event has traditionally been accompanied by another general rule: a plaintiff is to be considered the successful party, and therefore entitled to costs, if it achieves any victory in the proceedings.91 Courts have explained this as an aspect of the costs following the event of the litigation, with the event being the result of the claim.92 (This is, of course, subject to possibility that the defendant might successfully protect itself against costs by payment into court or by a settlement offer, which was discussed in Chapter 27.) Put simply, in each case there is a ‘winner’,

Page 1106 or ‘successful party’, on the case as a whole, who will recover its litigation costs from the ‘loser’,or the ‘unsuccessful party’ who will pay these costs.

91 A classic statement of the principle may be found in Reid, Hewitt & Co v Joseph [1918] AC 717 Lord Finlay.

at 724–5

92 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [14]–[15] curiam).

per

(per

28.53 The court has always had power to award costs on a partial basis. For example, a successful plaintiff may be deprived of its costs relating to an issue on which it was unsuccessful, if that issue was dominant in the proceedings, and clearly separable from the issues on which it was successful.93 However, this power has usually been regarded as one to be exercised only exceptionally.94 The justification for this approach was explained by Jacobs J in Crettazo v Lombardi ,95 a case which continues to be cited with approval:96 … I would wish to sound a note of cautious disapproval of applications, which are being made with increasing frequency, to apportion costs according only to the success or failure of one party or the other on the various issues of fact or law, which arise in the course of a trial. … The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of

Page 21 of 137 Chapter 28 Costs issues upon which he may have succeeded, based merely on his success in those particular issues.

93 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]

(per curiam).

94 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; [1993] FCA 259

(per curiam); Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]

per Finkelstein and Gordon JJ. 95 (1975) 13 SASR 4 at 16

per Jacobs J.

96 See, for example, Priestley v Priestley (No 2) [2016] NSWSC 1259 at [33]

per White J.

28.54 A ‘winner takes all’ approach has the potential to operate very unfairly.97 For example, one can imagine a situation in which a plaintiff pleads several alternative causes of action, each of which would be sufficient of itself to justify the court granting relief to the plaintiff. If only one of the causes of action is strong, but the others are less meritorious — and yet occupy a significant proportion of the parties’ time and costs in preparation — then it may be unfair to the defendant to award costs on a global basis to the plaintiff, when the defendant has been successful on the issues which contributed most significantly to cost.

97 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [4]–[5] JJ.

per Finkelstein and Gordon

28.55 There are some signs now that courts are more willing to make orders for costs which reflect the degree of success that the receiving party had in the litigation. That is, rather than adopting a ‘winner takes all’ approach, where a party will be treated as winning — and therefore entitled to costs — irrespective of the extent of its win, the modern approach is to use costs orders to more closely reflect the extent to which each party has succeeded in its claim or defence, and the responsibility that each party bears for causing expenditure.98

Page 1107

98 See, for example, Baulderstone Hornibrook v Qantas Airways Ltd (No 3) [2003] FCA 325 at [4] Evans Deakin Pty Ltd v Siebel Furniture Ltd [2003] FCA 282 at [13] (No 3) [2007] FCA 510 at [4]

per Finkelstein J; Perochinsky v Kirschner (No 2) [2013] NSWSC 837 at [16]–[18]

per White J; Farah v Elias [2015] NSWSC 1417 at [23] [2016] SASCFC 27 at [5]

per Finkelstein J;

per Allsop J; AMP Services Ltd v Manning

per Harrison J; A, DC v Prince Alfred College Inc (No 2)

(per curiam). See also Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008]

Page 22 of 137 Chapter 28 Costs FCAFC 107 at [3]–[5] per Finkelstein and Gordon JJ, where their Honours advocated greater departure from the traditional rule despite the Federal Court Rules not having yet been amended to that effect.

28.56 This approach is, it is submitted, consistent with the general principle which underpins the exceptions to the rule that costs follow the event. Exceptions generally apply where a party has caused its opponent to incur unnecessary costs. In Commonwealth v Gretton, Hodgson JA explained how the general rule, and the exceptions to it, could be justified by the same principle:99 … underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled. Departures from the general rule that costs follow the event are broadly based on a similar approach.

99 Commonwealth v Gretton [2008] NSWCA 117 at [121]

per Hodgson JA (Mason P agreeing)(citations omitted).

28.57 In many jurisdictions, the rules make express provision for costs to be awarded on an issue-by-issue basis, or a percentage basis.100 However, even where an express provision does not exist, such an order is within the general discretion, and courts have long recognised a general power to award costs on an issue-by-issue basis, at least where the successful party has lost on an issue which is clearly severable.101 The court may also order a specified sum in respect of costs.102

100 Court Procedures Rules 2006 (ACT) r 1705; Civil Procedure Act 2005 (NSW) s 98(4)(b) and (d); Supreme Court Rules (NT) r 63.07(a); Uniform Civil Procedure Rules 1999 (Qld) rr 684 and 687(2)(a); Supreme Court Civil Rules 2006(SA) r 264(5)(c) (the court may ‘award costs on any other basis the Court considers appropriate’); Supreme Court Rules 2000 (Tas) r 839(a); Civil Procedure Act 2010 (Vic) s 65C(2)(b) ; Rules of the Supreme Court 1971 (WA) O 66 r 1(3). 101 In Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]–[5] per Finkelstein and Gordon JJ, their Honours advocated greater departure from the traditional rule despite the Federal Court Rules not having yet been amended to that effect. 102 Federal Court Rules 2011 (Cth) r 40.02(b); Civil Procedure Act 2005 (NSW) s 98(4)(c); Supreme Court Rules (NT) r 63.07(c); Uniform Civil Procedure Rules 1999 (Qld) r 687(2)(c); Supreme Court Civil Rules 2006 (SA) r 264(5)(c) ; Supreme Court Rules 2000 (Tas) r 839(c); Civil Procedure Act 2010 (Vic) s 65C(2)(c); Rules of the Supreme Court 1971 (WA) O 66 r 13(a).

28.58

Page 23 of 137 Chapter 28 Costs The effect of more nuanced orders as to costs ought to be to encourage reasonable litigation practice. Parties ought to consider carefully whether to plead numerous alternative causes of action, of varying degrees of strength, if they know that they may bear their own cost of litigating weak or unnecessary points even if they win overall.103 Similar considerations ought to apply to parties who consider that there

Page 1108 might be some tactical advantage in taking wasteful and unnecessary interlocutory steps. However, the risks of adopting an issue-by-issue approach to costs are twofold. First, there is likely to be greater uncertainty about the costs consequences of litigation as the court becomes more reluctant to adopt a ‘winner takes all’ approach. Secondly, depending on the method of calculation(issue-based, versus a percentage approach), the assessment of costs may become unduly complicated. For example, it might be difficult (and therefore time-consuming and costly) to identify which parts of the lawyers’ work are attributable to the winning issues, and which are attributable only to losing issues. Further, considering which party bore responsibility for costs being incurred will require scrutiny of the manner in which the litigation was conducted; again, this could be a difficult,time-consuming and costly task, particularly given that costs will usually be taxed or assessed by a court officer other than the judge who heard the trial, or the judge who was responsible for the case management of the proceedings.

103 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261, 272; [1993] FCA 259; A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27 at [7]–[10]

(per curiam).

The application of the principle that costs follow the event where there are multiple defendants or secondary claims Multiple defendants

28.59 Where a plaintiff sues two defendants, but is successful against only one of them, the plaintiff is entitled to recover its own costs from the defendant against whom it has succeeded. Such a situation may arise, for example, where the plaintiff cannot confidently identify which defendant is responsible for its loss. However, prima facie, the plaintiff will also be liable to the other defendant (against whom the plaintiff ’s claim failed) for that defendant’s costs. The question therefore arises: can the plaintiff recover the costs it must pay to the successful defendant from the unsuccessful defendant? To put the question another way: should the unsuccessful defendant be liable for both the costs of the plaintiff and the successful defendant?

28.60 The fairness of requiring the unsuccessful defendant to pay the costs both of the plaintiff and the successful defendant in these circumstances was explained by King CJ in Fennell v Supervision and Engineering Services Holdings Pty Ltd :104 The unsuccessful defendant has caused the litigation by his wrongful act and by disputing liability for it. He therefore ought to pay all costs reasonably incurred by the plaintiff in connection with the litigation. If it was reasonable,as between the plaintiff and the unsuccessful defendant, for the plaintiff to sue the successful defendant, the unsuccessful defendant ought therefore in justice be liable to indemnify the plaintiff against the costs of so doing, including those which he is ordered to pay to the successful defendant.

Page 24 of 137 Chapter 28 Costs

104 (1988) 47 SASR 6 at 7

.

28.61 Requiring the unsuccessful defendant to pay the costs of the successful defendant may also promote the interests of avoiding a multiplicity of proceedings.105

Page 1109 On the other hand, there is a countervailing policy consideration: it would be unfair to impose additional costs upon an unsuccessful defendant in order to ‘pay for the plaintiff ’s error or overcaution’106 in proceeding against other defendants who were not, in fact, liable to the plaintiff.

105 See, for example, Russo v Russo (No 2) [2015] NSWSC 449 at [57] per Slattery J (finding that ‘[w]here a joint venture or partnership is alleged’, it would ‘often’ be reasonable to join all joint venturers (or partners) as defendants in the interests of avoiding multiplicity of proceedings); Victoria v Horvath (No 2) [2003] VSCA 24 at [13] 106 Gould v Vaggelas (1985) 157 CLR 215 at 229

(per curiam).

per Gibbs CJ.

28.62 Thus, the reasonableness of the plaintiff’s decision to proceed against several defendants is not the only criterion for the court to take into account in exercising its discretion as to costs in these circumstances (and it has been said that, of itself, reasonableness is insufficient).107 It is also necessary that there be some aspect of the unsuccessful defendant’s conduct which makes it fair that it bears the costs of the successful defendant.108 It has been said that:109 Such conduct will be found where the unsuccessful defendant tells the plaintiff in one way or another that it should look to the successful defendant for its remedy or has done something to induce the plaintiff to maintain its suit against the successful defendant.

For example, it was reasonable for the plaintiff to join the successful defendants in circumstances where the unsuccessful defendant had raised the suggestion that it was responsible for the plaintiff’s loss, and denied that it owed a duty of care to the plaintiff.110 Other examples of reasonable joinder by the plaintiff of successful defendants include where they had already been joined by the unsuccessful defendants (who had denied their own liability),111 and where it was unclear on the information available to the plaintiff which defendant to sue, and the unsuccessful defendant’s position after proceedings were commenced was to blame the other defendant (thus making it reasonable for the plaintiff to continue proceedings against that other defendant).112

107 Gould v Vaggelas (1985) 157 CLR 215 at 229–30 per Gibbs CJ. As to the necessity of showing that the plaintiff was reasonable in joining the successful defendant, see at 230 per Gibbs CJ, 247 per Wilson J (Murphy J agreeing at 232), 260 per Brennan J. 108 Gould v Vaggelas (1985) 157 CLR 215 at 229–30

per Gibbs CJ.

Page 25 of 137 Chapter 28 Costs 109 Central Goldfields Shire v Haley (No 2) [2009] VSCA 203 at [9] per Redlich JA (Neave JA and Pagone AJA agreeing) (citations omitted); Victorian Workcover Authority v Kagan Bros Consolidated Pty Ltd (2011) 31 VR 386; [2011] VSCA 91 at [26]

(per curiam) (citations omitted).

110 Stevedoring Industry Finance Committee v Ronald J Gibson (2000) 20 NSWCCR 417; [2000]NSWCA 179 at [132]– [136] per Mason P (Stein and Heydon JJA agreeing). Several examples of circumstances in which the unsuccessful defendant’s conduct made the plaintiff’s joinder of the successful defendants reasonable are summarised in ACQ v Cook (No 2) [2008] NSWCA 306 at [36]–[43] 111 Victoria v Horvath (No 2) [2003] VSCA 24 at [12]

per Campbell JA (Beazley and Giles JJA agreeing). (per curiam); ACQ v Cook (No 2) [2008] NSWCA 306 at [46],[51]

per Campbell JA (Beazley and Giles JJA agreeing). 112 Coastal Hire Pty Ltd v Ewers [2009] WASCA 36 at [41]–[43]

per Newnes JA (Wheeler and Buss JJA agreeing).

28.63 An often-cited summary of the relevant principles was provided by Asche CJ in Lackersteen v Jones (No 2):113

Page 1110   1.

It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant.

2.

The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other.

3.

While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion.

4.

Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants,so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful.

113 Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449

, cited with approval in Stevedoring Industry Finance

Committee v Ronald J Gibson (2000) 20 NSWCCR 417; [2000] NSWCA 179 at [128]

per Mason P (Stein and

Heydon JJA agreeing); Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [16]

(per curiam)

(amongst others).See also, to similar effect, Central Goldfields Shire v Haley (No 2) [2009] VSCA 203 at [9]

per

Redlich JA (Neave JA and Pagone AJA agreeing); in Coastal Hire Pty Ltd v Ewers [2009] WASCA 36 at [24] per Newnes JA (Wheeler and Buss JJA agreeing), the first three circumstances identified in Lackersteen were identified as the only circumstances in which a Bullock or Sanderson order would be made.

28.64

Page 26 of 137 Chapter 28 Costs There are two specific types of order that the court may make in these circumstances. First, there is a Bullock order,114 by which the unsuccessful defendant becomes liable to the plaintiff for the costs of both the plaintiff and the successful defendant. Secondly, there is a Sanderson order, by which the unsuccessful defendant becomes liable to the plaintiff for its costs, and is also directly liable to the successful defendant for its costs.115 The difference between the two orders will be most pronounced where the unsuccessful defendant is insolvent and cannot satisfy an order for costs in favour of the other parties. In that circumstance, the plaintiff would be responsible for costs of the successful defendant if a Bullock order were made, and would not be compensated by the unsuccessful defendant for these costs, nor for its own costs. On the other hand, if a Sanderson order were made, neither the plaintiff nor the successful defendant would recoup its costs from the unsuccessful defendant, but the successful defendant would be unable to look to the plaintiff for its costs. The court’s preference is for a Sanderson order, owing to the greater efficiency of that course;but this consideration may be displaced in favour of a Bullock order if, for example, the unsuccessful defendant is insolvent.116

Page 1111

114 Bullock v London General Omnibus Co [1907] 1 KB 264 115 Sanderson v Blyth Theatre Co [1903] 2 KB 533 116 Russo v Russo (No 2) [2015] NSWSC 449 at [59]

.

. per Slattery J. His Honour observed that the preference for

Sanderson orders had existed at common law (Vucadinovic v Lombardi [1967] VR 81 ), but that it was now ‘reinforced by Civil Procedure Act, s 56’ which required the ‘“just, quick and cheap” disposition of proceedings’. As to the principle that a Sanderson order is to be preferred for reasons of administrative efficiency, see ACQ v Cook (No 2) [2008] NSWCA 306 at [52] per Campbell JA (Beazley and Giles JJA agreeing). As to the relevance of the insolvency or impecuniosity of the unsuccessful defendant in the exercise of the discretion, see Victoria v Horvath (No 2) [2003] VSCA 24 at [15] (per curiam); Coastal Hire Pty Ltd v Ewers [2009] WASCA 36 at [24] Newnes JA (Wheeler and Buss JJA agreeing).

per

Secondary claims

28.65 The general principle, that a successful party is entitled to recover its costs from the unsuccessful party, applies to defendants who have been sued by other defendants by means of a secondary claim.117 Suppose, for example, that the purchaser of a vehicle sues the vendor for defects, and the vendor brings a secondary claim (for contribution) against the distributor from which it, in turn, purchased the vehicle. If the purchaser’s claim is dismissed, then it follows that the purchaser is liable for the costs of the vendor. However, in this event, the vendor’s secondary claim against the distributor will also be dismissed. By application of the general principle that costs follow the event, the defendant to the secondary claim (the distributor) is entitled to its costs from the plaintiff to the secondary claim, who is also the principal defendant (the vendor).118

117 See Chapter 4, 4.122–4.156 as to secondary claims generally. 118 Johnson v Ribbins (Sir Francis Pittis & Son (a firm), third party) [1977] 1 All ER 806; [1977] 1 WLR 1458 Financial Services Pty Ltd v Aussie Home Loans Ltd (2010) 31 VR 46; [2010] VSCA 355 at [15]–[16]

28.66

; Kheirs (per curiam).

Page 27 of 137 Chapter 28 Costs The more difficult question is whether the vendor (as the principal defendant) can recover those costs from the plaintiff. The starting position is that the plaintiff will be liable for the principal defendant’s costs, and the principal defendant will be liable for the costs of the third party against whom it brought a secondary claim.119 Beyond that, though, the position becomes more complicated. As King CJ explained in Lombard Insurance Co (Australia) Ltd v Mara Pastro :120 The basic guiding principle is that costs ordinarily follow the event. The application of that principle to unsuccessful third party proceedings presents difficulties as the diverse outcomes of the decided cases indicate. There is no great difficulty where a third party claim by a defendant is unsuccessful because the defendant has failed to establish its right to recover from the third party the amount which it is required to pay to the plaintiff, or the amount which it would have been required to pay if the plaintiff ’s claim had been successful. In such cases the defendant is ordinarily required to pay the costs of the third party and cannot recoup them from the plaintiff. Where, however, the third party claim fails solely because the plaintiff has failed in its claim against the defendant, the position is more complex. … The third party claim has not been an issue between the plaintiff and the defendant and there has therefore been no ‘event’ in relation to it as between the plaintiff and defendant. Other guiding principles must be sought.

119 Furber v Stacey [2005] NSWCA 242 at [30]

per Hodgson JA; Kheirs Financial Services Pty Ltd v Aussie Home

Loans Ltd (2010) 31 VR 46; [2010] VSCA 355 at [28] [42]

(per curiam); Boz One Pty Ltd v McLellan [2015] VSCA 145 at

(per curiam).

120 (1994) 175 LSJS 448 at 449

(Mullighan J agreeing).

28.67 In GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd ,121 Finn J went on to identify other guiding principles. His Honour identified that the central question was ‘whether in the circumstances the costs of the successful third party

Page 1112 “ought fairly to be borne”by the unsuccessful applicant’.122 In answering that question, relevant considerations included:123 •

whether it was reasonable or appropriate for the defendant to make the secondary claim;

•

whether the secondary claim raised ‘private issues’, such that the third party ‘was not necessarily joined because of the plaintiff’s claim’;

•

whether the original claim by the plaintiff had been the ‘catalyst’ for the secondary claim, in that its commencement led inexorably to the commencement of the secondary proceedings — where the original claim can be said to have prompted the secondary claim, the principal defendant will usually be able to recover from the plaintiff the costs that it must pay to the third party;124

•

perhaps most significantly, the relationship between the plaintiff’s original claim and the secondary claim. For example, in cases involving a ‘string of contracts’ alleged to have been breached, the unsuccessful plaintiff would ordinarily be liable for the costs of the principal defendant, and the costs of third and subsequent parties would also be passed along the string, such that the plaintiff would bear them too.125

Later cases have also identified as relevant considerations whether the joinder of the third party was ‘reasonably foreseeable by the plaintiff, such that [it] might be viewed as having some responsibility’ for its costs, and the amount of time spent at the hearing on the respective proceedings.126

Page 28 of 137 Chapter 28 Costs 121 (2003) 201 ALR 55; [2003] FCA 688 [113]–[114] per Einstein J.

. Followed in Furber v Stacey [2005] NSWCA 242 at [32]

per Hodgson JA,

122 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; [2003] FCA 688 at [72] per Finn J. 123 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; [2003] FCA 688 at [73]–[75] per Finn J. See also Furber v Stacey [2005] NSWCA 242 at [33] v Victorian Workcover Authority [2015] VSCA 187 at [9]–[10]

per Hodgson JA; Boral Australian Gypsum Ltd

(per curiam).

124 Boral Australian Gypsum Ltd v Victorian Workcover Authority [2015] VSCA 187 at [11]

(per curiam).

125 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; [2003] FCA 688 at [75] per Finn J, citing L E Cattan Ltd v A Michaelides & Co [1958] 2 All ER 125 at 128

.

126 Kheirs Financial Services Pty Ltd v Aussie Home Loans Ltd (2010) 31 VR 46; [2010] VSCA 355 at [28(4)] curiam); Boral Australian Gypsum Ltd v Victorian Workcover Authority [2015] VSCA 187 at [9]

(per

(per curiam).

28.68 Where a plaintiff is ordered to pay the costs of a third (or subsequent) party, the order may entail direct payment (via a Sanderson order) or indirect payment (via a Bullock order).127

127 Boz One Pty Ltd v McLellan [2015] VSCA 145 at [42]

(per curiam).

Discretion to depart from the ‘costs follow the event’ principle — fact-based (or issue-byissue) apportionment

28.69 The most common circumstance in which an issue-by-issue approach will be taken to the allocation of costs is where the successful party to litigation has lost on an issue which is ‘clearly dominant or separable’.128 The general principles to be

Page 1113 applied by the court were explained by the New South Wales Court of Appeal in Bostik Australia Pty Ltd v Liddiard (No 2) in the following terms:129 Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. A similar approach is adopted on appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue.

Page 29 of 137 Chapter 28 Costs

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed. A separa