Case Lists: matter has fed & state CofA, then as long as close connection, then in its same/sim
er has fed & state CofA, then as long as close connection, then in its same/sim issue fact and/or law and where would min cost and court time; C-V
CASE FLOW MANAGEMENT
The changing nature of adversarial system: 1980s onward strong criticisms
levelled at the civil justice system in Australia as a result of (a) Long delays; (b)
Lack of efficiency; (c) High costs
Case flow management systems implemented
Cts have now take a proactive role in managing litigation from start to
finish- vs former adversarial approach where parties managed their cases
Objects: resolve disputes early, reduce trial time, reduce costs/delay,
encourage ADR and settlement options, provide a timeline for matters from
start to finish, improve public perception, reduce public expenditure, greater
access to just outcomes
R5(1): The purpose of these rules (UCPRs) is to facilitate the just and
expeditious resolution of the real issues in civil proceedings at a minimum
of expense R5 at heat case flow mgt: overriding obligations of parties/Ct
o R 5(2): rules are to be applied by cts w/ objective of avoiding undue
delay, expense & technicality and facilitating the purpose of these rules
o R 5(3): In a proceeding, a party impliedly undertakes to the ct & other
parties to proceed in an expeditious way
o R 5(4): Ct may impose approp sanctions if a party does not comply w/
rules or an order of the court **MOST
PD 17/2012: sets timelines for progress of litigious matter once originating
proceedings have been served reflects R5
Rigato Farms P/L v Ridolfi: Respondents solicitors served notice to admit facts
and sought w/in 14 days factual matters founding allegations of neg/breach of
duty; under 189(2) if fail w/in 14 days, deemed admit; after 14 days, solicitor sent
letter of consequences; at trial, appellants new solicitors claim did not receive
instruction to respond to notices by former solicitors; leave refused; H: no
inalienable right to hearing- must comply with rules and if not, R5 applies-
obligation proceed expeditiously or sanctions; respondents solicitors prep for trial
on basis of admission, overlooks justice to respondent= unfair; change in solicitor
insufficient, no effort to respond; de Jersey CJ: rules in UCPR cannot be
ignored, even inadvertently and ct not rectify omission following procedures
key to ensure ultimate result is just
JL Holdings Pty Ltd: leg requirement that Minister consent to lease for
development (refused) & argued that varied lease approved prev; late application
by D to amend defence, which caused adjournment; H: interest justice allow
amendment so rightly argue defence ct concerned with individual justice
(allowing parties to litigate an issue), subordinated case mgt & efficiency
stating that it should not shut applicant out of raising arguable def ultimate aim
ct attainment justice and no principle case mgt supplants that aim; due to delay,
cost award appropriate remedy [READ DOWN AFTER AON]
Aon Risk Services: ANU issued proceedings against 3 insurers re indemnity for
loss re property damage; later joined its broker Aon as a D for failing to arrange
renewal of insurance; ANU settled claims w/ insurers on 3rd day of trial, then
applied for adjournment & leave to amend SofC against Aon to add a substantial
new claim; HC: allowed appeal and disapproved JL Holdings; application made
late, inadequately explained, raised new **claims not prev agitated b/c of
deliberate tactical decision; unfair prejudice in unnecessarily delaying
proceedings, time of court is publicly funded, need to maintain public confidence
in the judicial system; extent & cost of the delay & prejudice are to be weighed
against the grant of permission to a party to alter its case; had suff time plead
case; unfair other party & other litigants awaiting trial; Justice not just for the
parties but also the public as a whole ie substantial public interest in reducing
cost and delay so other litigants have timely access
Althaus v Australia Meat Holdings: Ps sought leave to file a SofC; Ds sought
order Ps action be dismissed; Ps 10th attempt to plead their case due to lack
particularity; H: SofC struck out and action dismissed; no basis to believe Ps
perform task properly, unfair to Ds to prolong exposure to claims; time passed for
Ps to plead case; not comply R5 & R280 (balance: delay, reasons for delay,
prejudice D); Chesterman J: Ps persistent incompetent attempts describe case
is abuse of process- conduct scandalous- misuse rules and subject D defective
process; P responsible put case proper form & unable to do so
Courts make orders in conduct of matters in pre-trial phase
Directions hearings R366 370
R366(2): ct may give directions about conduct of a proceeding at any time; (3)
party may apply for directions at any time
R367(1): ct may make any order/direction about the conduct of a proceeding it
considers appropriate, even if inconsistent with another provision of these rules
R367(2): in making decision, interests of justice are paramount
R367(3): Directions: pleadings, time limits for the length of trial, require E to be
given in a certain way, limit # Ws, require submissions, limit time for making and
length of submissions, require parties to provide witness statements prior to trial
R367(4): Ct may consider: each party entitled to a fair hearing, time allowed must
be reasonable, complexity of case, importance of issues/case itself, volume/
character of E to be led, time expected for trial, # Ws, party to be given
reasonable opportunity to lead/XA Ws, state of court lists, other relevant matter
Specific proceedings PI R544558
Plaintiff to serve statement of loss & dmg 28 days after close of pleadings and
before request for trial date setting out claims (R547) and evidence to be relied
upon at trial. If not disclosed P unable to call that E at trial
Purpose promote sufficient info to ensure settlement neg can take place
Defendant req to serve P with stmt of expert & economic evidence 28 days after
receiving Ps stmt & before request for trial date detailing hospital, doc, experts
who have given reports on Ps injury, loss or treatment (Rr550, 551)
R553: settlement conference (another form of case management)
Supervised case list PD No 11 of 2012: Specific proceedings require
placement on supervised list where long (hearing >5 days), complex, greater
demand on resources;
Purpose: to manage preparation of these cases for trial to ensure just and timely
resolution, minimise resources
Parties required to develop case management plan take into account
R5 UCPRs and checklist set out in PD
Parties to agree on directions and submit to court for approval
Must set out time frames for action
Non compliance: costs order may be made against party/lawyer,
suspend case, strike out pleadings, list for trial
Commercial list PD No 3 of 2003
Applies to cases where hearing time 10 days or less
Case subject to control of designated commercial list judge deals
w/interlocutory applications & trial
Judge can give directions to ensure just, efficient & expeditious applied s8 transfer to NSWSC and then s5 to SASC; R lived in SA, A
disposal R5 principles
Types of cases - construction of business/comm K; Banking/finance services;
Securities; Bus & commercial agents; Exploitation of or rights to technology; IP;
Takeovers; Exporting and importing, carriage of goods etc
Family Provision proceedings PD No 8 of 2001 to encourage early resolution
Will states asset distributions (claim inadequately provided for in Will)
Draft directions order set out dispute resolution plan with timetable
If consensus after service, directions are filed and orders made
Cases not on case lists PD 17 of 2012
Cases are supervised by court registrar
If NITD not filed w/in 30 days of service of claim, proceeding deemed
resolved
If NITD and def filed parties have 180 days to file a request for trial date
Request for Trial Date
R467: Party provides form to all parties for signing; All interlocutory steps
completed, Ws available for trial etc
JURISDICTION
When decide to issue proceedings, must ensure ct where proceedings
commenced has power/jurisdiction to hear the matter; Jurisdiction founded upon
power of courts to enforce their judgments: Laurie v Carroll
Which court State or Federal?
Matter governed by State leg/c/l proceedings issued in a State court
Matter governed by Fed leg the matter may heard in a State or Federal Ct
State and territory courts:
Supreme Courts= only courts with unlimited jurisdiction (Qld: jurisdiction
defined as whatever is necessary to do justice: s58 Consti of Qld)
Courts beneath SC: smaller jurisdictional limits, fewer procedural
and remedial powers
SC can transfer smaller claims to the more appro court
Cth: HC: jurisdictional power HC must be exercised according CH III Consti
Cross-vesting legislation:
Originally, no power of courts to combine CofA jurisdictionally BUT issue when
2 courts hearing matter, or D argued P commenced in inappropriate court
If proceedings are commenced in 2 different jurisdictions/courts need to consider
whether the court will combine proceedings s 5 of the Cross Vesting Legislation
gives the court power to transfer proceedings to an appropriate court- consider cases
Jurisdiction of Courts Act (Cross-Vesting) Act [Took effect from 1 July 1988]
s5: Appropriate Ct based on the interest of justice; if in interest of justice to
transfer & no alternative, then matter must be transferred
Purpose:
1. Matters heard in the most appropriate court
2. Matters could be transferred when proceedings commenced in an
inappropriate court to an appropriate
Re Wakim conferral by cross-vesting legislation of State jurisdiction on
Federal Courts invalid constitutionally but valid as to conferral of Federal
jurisdiction on State and Territory courts (aspect that survived: cross-
vesting of state jurisdiction among state cts)
NB: accrued jurisdiction has dealt with issue of the federal court
Effect:
State & Territory Cts have the civil jurisdiction of each other in State/
Territory matters
Federal jurisdiction is invested in State & Territory Courts
Federal cts can transfer matters to State/Territory cts and State/Territory
courts can transfer matters to State courts
Application:
Supreme Courts, not lower courts (Federal Court, Family Court, state/territory
SCs, Family Court of WA)
Associated jurisdiction in the FC:
Where a claim contains CofA arising under both federal law and common
law FC can provide relief for all CofA, even though it does not have direct
jurisdiction [avoids claims in 2 separate cts]
Non federal aspects have to be very closely linked to fed aspects of the
case so as to be non severable (arose out same facts): Fencott v Muller
o Claims for dmgs based on misleading & deceptive conduct (TPA) and
claims for breach of contract for the sale of land, negligence and fraud
(common law) same transaction; H: arose out of the same matter/facts; if
associated jurisdiction, the federal court can hear both the federal & state
matters (even though cross-vesting says cannot, c/l said it can)
arise out of common substratum of facts and can be considered to be
part of the same matter as the claim that is within the courts jurisdiction:
Philip Morris v Adam P Brown Male Fashions
Cross-vesting - transfer of proceedings:**
Occurs when proceedings have not been commenced in approp ct by P
Application usually made a D
s5: Cross-vesting legislation as to when court must transfer proceedings note
shall transfer- gives ct power to transfer proceedings to appropriate ct
BHP Billiton v Schultz
Respondent suffered injury while working w/asbestos in SA; Proceedings begun
in Dust Diseases Tribunal of NSW for negligence, breach of K and breach of
statutory duty (exp, time, cost, could bring later claim & get dmgs related injuries
surface; diff rules of evidence, so easier present case); A: appro law is SA,
incorporated in Vic, carried on business in NSW and SA; HC: cases to be heard
in forum dictated by interests of justice for all parties involved ct must weigh
competing interests convenience/expense/availability Ws/where parties
live/business/law governing transaction; NB: sometimes bring proceedings
where convenient (lawyers, near death- time); torts matter & substantive law to
be applied SA, transferred
TEST: which jurisdiction is the most appro forum, upon fair balancing of
factors relevant to interest of justicejurisdiction where actions have the
most real and substantial connection with?
James Hardie & Coy v Barry basis for transfer of proceedings
1. Proceedings are pending in separate cts where parties/subject matter
related & more approp for another ct to determine
2. if a proceeding is pending in a ct that has jurisdiction solely because of
cross-vesting & in the interests of justice it is more approp to determine the
proceeding in another ct, or
3. where it is otherwise in the interests of justice that the proceeding be
determined in another court
HUB Capital v Challock: Harrington started proceedings in VSC against HUB in Dec
98. HUB started proceedings in QldSC against Challock in Jan 99 [Challock was
Harringtons family Co]= all one matter- misleading & deceptive conduct & breach of
K. HUB was located in Qld. Harrington wanted the Qld proceedings transferred to
VSC under s5(2) of the cross vesting act. H: should be 1 hearing to avoid
inconsistent findings of law/fact in 2 jurisdictions, avoid costs & inconvenience. Qld
has the most substantial connection with the action: K most likely formed &
performed in Qld, representation made in Qld, and any dmg HUB may have
sustained likely occurred in Qld, most W in Qld= balance favours Qld; video/
phone link for W in Vic NB: also believed Vic proceedings were delay tactic by H
Pegasus Leasing v Cadoroll
Separate proceedings in SCSA and FC=same parties/issues; each ct refused
transfer or stay - but FC ordered no further steps in SC until FC proceedings
determined (appeal); H: dismissed- Neaves J did not err in order restraining cont
SC proceedings; undesirable for public/parties to have foot in 2 parallel streams
of litigation in superior courts involving same issues of fact and law- each
proceeding not necessarily oppressive, but overall consequences can be
oppressive in placing onerous burdens on parties might be conflicting findings of
fact or law, which could lead to inconsistency and confusion, waste resources,
time, expense/parties/witnesses/degree progress in each jurisdiction Purpose
CVA= allow 1 ct deal with all issues & give complete relief; here at impasse, so
had to make decision re how manage litigation; only in FC can matter be fully and
finally determined and multiplicity of proceedings avoided
Pegasus Leasing v Balescope
P sued in SCSA for moneys owing under pship; Ds then issued proceedings in
FC claiming relief against P & application to stay SC until FC decided= both
dismissed; H: cross-vesting order was grounded on inconvenience & cost- but
today quick and efficient transport; issues straight forward and capable prompt
prosecution, mostly same def & those not in SC could be included by
amendment; P properly commenced in state carries on business, where debt
arose- jurisdiction to determine all issues without risk inconsistent findings BUT
fact of unsuccessful application C-V must be considered in deciding whether or
not to stay proceedings application for stay not permitted as indirect appeal
against refusal to C-V; also clause in lease agreeing to application of laws in SA
James Hardie & Coy v Barry: B issued proceedings in NSW tribunal & JH applied
for a transfer to the NSWSC & then to QldSC. B went to tribunal because he wanted
to rely on evidence & findings in the tribunal & there was no limitation to bring
proceedings. B lived in Qld & the work which led to the injury occurred in Qld. JH: Qld
was the place where the tort was committed. H: NSW same law as in Qld BUT
shortened trial in the tribunal, less of an evidentiary burden & tribunal experience in
these cases- each party and judicial system benefit from savings attributable to
tribunal; proceedings made after both side invested resources in the proceedings on
basis occur in tribunal, Ps solicitors do not have office in Qld and retained Sydney-
based medical and legal assistance- transfer, therefore, severely disadvantage P; D
also well-equipped to contest the matter in its present form [QldSC had not heard a
dust & disease matter to date] DID NOT transfer proceedings
Rosenboom v Qantas Airways: claim for dmgs for deep vein thrombosis; 8
proceedings commenced in NSWSC and >300 in VSC- where joint case
management (**like other cases- search for most appropriate forum = that which
the action had the most real and substantive connection- taking into account all
relevant matters to determine most appro forum); H: application to transfer
proceedings NSWSCVSC=interest of justice (min cost & time) interest justice
include advantages pooling cases for joint case mgt, where case involves
claim may be made by a P if there is good reason for a second choice of forum,
explanation given why second choice not made first and no prejudice to D
Ron Medich Properties: proceedings & cross-claims brought to FCA re business
dealings; Applicant sought stay of proceedings until criminal charges re murder of
one of respondents was resolved; Respondents sought order transfer
proceedings to SCNSW where criminal matter being heard; H: interest of justice
requires transfer; pros in civil proceedings has potential to compromise right to
silence and freedom from self-incrim in crim proceedings; potential for prejudice
better evaluated by ct customarily exercises crim jurisdiction SC better placed
to weigh interests/equipped to deal w/ crim
GENERAL JURISDICTION
In which court should proceedings be started?
(a) Geographical location (where did CofA occur? Where parties live?)
(b) Monetary jurisdiction of the court
(c) Can the court deal with the subject matter of the dispute? (does the ct
have jurisdiction; SC deal with anything (cts of record); Mag ct: cannot
apply for injunction and equitable remedies)
CofA: all of the important facts/circum that give rise to remedy/relief seeking
(breach K, negligent, statutory)
A) Geographical jurisdiction in Qld:
District Court 32 locations including regional and remote areas
Supreme Court (nearest BNE): 11 locations Brisbane, Bundaberg,
Cairns, Longreach, Mackay, Maryborough, Mount Isa, Rockhampton,
Roma, Toowoomba and Townsville.
R33: Starting point: proceeding in ct may be started in any central registry
R34: can start proceedings in other registry [not central if SC, DC, MC]
R35(1): If not in central registry, Person must start proceedings b/f court in one of
following districts:
(a) **district where D lives/carries on business;
(b) more than 1 D- district where 1 or more live/carry on business;
(c) if to be started Mag/District consent in writing and file consent (i) Mag;
(ii) District Court parties in DC or MC can consent to proceeding
starting in a particular ct
(d) if D agreed in writing pay debt/amount at particular place- district in
which place located
(e) **district in which all/part of CofA arose
(f) **if claim for recovery of possn land- district in which land located
NB R22(2)(c) claims filed in the DC or MC must show the court has
jurisdiction to decide the claim [$ lim, aspects above]
NB R35(2)- If proceeding to be started DC and sub(1) NA, (a) person may apply
(w/out notice other party) to DC for directions re which district proceedings should
start; (b) may start proceedings according to directions
Changing Geographical Location
R38(2): D can object (b) if the proceeding is started by claim, objection must
be included in the NITD [ct decide change/not]
(3) If no objection, ct cannot decide proceeding should have been started in
another registry
(5) Ct can: make an order dismissing the application, or proceeding, or make an
order for transfer
R39: Change of venue by court order: (1) ct can order change of venue at any
point in proceedings if satisfied more conveniently or fairly heard or dealt with at
another venue (2) ct own initiative or by application of party
R40: Change of venue by agmt: parties can apply for consent order R666 that
proceedings transfer venue
R41: Consequences of transfer: everything transferred to that registry &
registry assumes control over matter
B) Monetary and subject matter jurisdiction:
Magistrates Court
s4(a): Magistrates Courts Act (Qld): $150k or less in personal actions (25-150k)
Partnership matters: s4(b): action to recover $150k or less, which is
whole/part balance of pship account or distributive share under an
intestacy or will
Equitable claims or demand: $150k or less relief must be for
recovery of a sum of money or damages: s4(c)
Does not deal with actions relating to title to land or wills: s7
Jurisdiction to hear Cth actions: Customs Act 1901; Social Security Act
1919; Taxation Act 1953 and some minor matters under the Family Law
Act 1975, domestic violence matters, child protection orders
NB s4A MCA: consent to the jurisdiction
District Court
s68 DCQA: $150k-$750k; equitable claims or demands for recovery of money or
dmgs, claims for detention of chattels, claim for rent, claim for debt, dmgs or
compensation under an Act; equitable claims, deal with matter relating to land
and can seek declarations
NB: s72: consent to jurisdiction (by memo signed by parties & lawyers) if exceed
amt; (2) parties must state know action not within jurisdiction of DC
Supreme Court
s58: Constitution of Qld 2001
(1) SC has all jurisdiction necessary for the administration of justice in Qld
(2)(a) is the superior court of record in Qld and the supreme court of general
jurisdiction in and for the State; and
(2)(b) has, subject to the Cth Constitution, unlimited jurisdiction at law, in
equity and otherwise.
NB: normally deals w/ monetary amounts in actions from $750k+
Riley McKay inherent jurisdiction as superior court of record- so can hear
anything: inherent jurisdiction to enable the Court to properly exercise their
powers, perform their functions and prevent abuse of process
LIMITATION OF ACTIONS
ASK: (1) What is the CofA? Material issues that give rise to relief/remedy being
sought; (2) When does limitation period start/end for that CofA?; (3) Extensions?
Purpose:
Brisbane South Regional Health Authority v Taylor: (1) relevant evidence may be
lost; (2) oppressive to D for action to be brought long after circum which gave rise
to it; (3) allows ppl to arrange affairs and utilise their resources on basis claim can
no longer be made; (4) public interest that dispute be settled as quickly as
possible [Lect: protect D, P commence in timely fashion, need for certainty,
evidential issues, matter brought trial expeditiously, reduce costs R5]
Consequences:
Action will be barred subject to any prov for extension of the time limit or other
mitigating factors; D can raise a procedural defence to the P bringing that claim-
did not comply w/ approp prov re LAA= claim is statute barred
Start: When the time for the CofA accrues or all the elements of the CofA are
present depends on type of CofA
Finish: when proceedings commence (issued) [can still sue, up to D to raise def]
(1) CAUSE OF ACTION
Torts- negligence causing PI, negligence causing property dmg; Contract;
Defamation; Statutory misleading and deceptive conduct (ACL); Deceased
estates; Breach of trust; Recovery of land; Enforcing judgments (time frame to
enforce judgment once received)
Negligence (duty, breach, causation)
Contract: parties, promises, performance, breach
NB: R60: Can have multiple CofA BUT (2)(a) must be common question of
law/fact; OR (b) all rights of relief sought arise out of same transaction/events;
OR (c) Ct grants leave
(2) WHEN DOES THE TIME BEGIN TO RUN
STATUTE: would have to go to statute to identify time limitation as stipulated
CONTRACT: S10(1)(a) LAA: An action founded on contract shall not be brought
after 6 years from date on which the CofA arose
**Generally from the time of the breach
Gillespie v Elliot: action brought against Ps former solicitors for neg & breach K
relating to drafting of renewal of lease clauses in sale & purchase K; Appellant
went on to sell business later stage- options to renew the lease in original agmt
but we unenforceable & uncertain; H: action statute barred= limitation period
started to run from original K, not from when problem re option to renew the
leases arose; judge bound by legislation that stipulated cannot extend; But
comment: recognise effect decision suffer at hands of negligent solicitor-
harsh- needs attn. legislature
PURE ECONOMIC LOSS: changed: not until aware of the problem
NB: not accompanied by any physical dmg to person/property [loss of fin gain]
In pure economic loss cases, the time limit starts to run when the problem
manifests itself or crystallises:
Wardley Australia: contract that exposes person to contingent loss/liability: P
sustains no actual loss until the contingency is fulfilled and the loss becomes
actual- until then, loss is prospective & may never be incurred (not when original
indemnity executed); misleading stmts made by W to WS govt about Rothwells net
assets. On this rep, Govt provided indemnity in favour of NAB who lent money to
Rothwells. First instance, W not permitted to plead new CofA out of time b/c loss
suffered at time indemnity executed; H: indemnity created an executory & contingent
obligation which crystalised at the earliest when NAB called on indemnity (CofA)
Hawkins v Clayton: claim for negligence for economic loss time does not run
until P discovers, or could on reasonable inquiry have discovered, that dmg has
been sustained; where wrongful conduct of the D has the effect of preventing the
institution of proceedings, the commencement of the lim period is suspended for
as long as that prevention cont; solicitors breach of duty to a beneficiary; H was
executor of estate & beneficiary; brought claim for dmgs against C for failing to
take reasonable steps to inform him of his interest under will for 6 yrs; once C
realised nothing done about will & contacted H, house in disrepair/stamp
duties/fines; first instance: statute barred; HC: limitation period held to have run
from date of occurrence of the dmg- once H aware of the assets & they came
under his actual control- earliest this could have occurred: when he became
aware of the existence of the will & commenced w/in 6 yrs= not statute barred
**knowledge key date CofA accrue
NEGLIGENCE:
TORTS: s10(1)(a) LLA: An action founded on tort where the dmgs claimed by
the P do not consist of dmgs in respect of PI, 6 years from the date on which the
CofA arose when dmg was suffered (same for contract)
Cartledge v Jopling and Sons Ltd: when dmg occurs (or personal injury occurs)
Proceedings were not commenced w/in the 6 yr limit as injuries not discovered- D
sued for neg by number former em/ees and reps of those who died; contracted
disease as result inhaling silica- claimed D in breach duty not to take steps to
guard; BUT not discovered until after 1950 and not until 1955 that all were
certified to be suffering from it (6 yrs passed); H: causes of action barred;
Lordships called for reform-in another generation science may if the present
statute for limiting CofA remains unamended, render justice unattainable for
ordinary men in cases of this kind
EXCEPTIONS:
Personal Injury: s11: action not to be brought after the expiration of 3 years from
the date on which CofA
Calculation Once the relevant event happens, time starts to run from the
NEXT DAY
PI claims 27/5 personal injury occurs 3 year time limit under LAA
28/5/14 27/5/15 - year 1
28/5/15 27/5/16 year 2
28/5/16 27/5/17 year 3 times up
Defamation: s10AA: action cannot be brought after the end of 1 year from date
of pub of the matter complained of
Recovery of Land: s13: action shall not be brought after expiration 12 years
from date on which right of action accrued to the person or, if it first accrued to
some person through whom the person claims, to that person
Dust related PI claims: S11(2): not subject to a limitation period conditions not
due to smoking
Rent: s25: not be brought nor a distress made to recover arrears of rent or
damages in respect thereof after expiration of 6 years from date on which the
arrears became due
Moneies Secured by Mortgage: s26: action not brought to recover principal sum
of money secured by mrtg/other charge on property nor to recover proceeds of
sale of land after expiration 12 years from date on which right to receive $
accrued
Acquiescence s43: equitable relief can be refused: Nothing in this Act affects the
equitable jurisdiction of a court to refuse relief on the ground of acquiescence or
otherwise. [if so nothing, equitable relief may be refused]
EXTENSIONS
Defamation: s32A LAA: can apply for extension if ct satisfied not reasonable in
the circum for P to have commenced an action in relation to matter w/in 1 year
from date pub, extend time to a period of up to 3 years from date of publication
Amending pleadings to add new CofA & partiesR69 & R376 (but may be lims)
Mistake or Fraud: for actions based on fraud of D lim period shall not begin to run
until P discovers the fraud or mistake: s38 LAA
Acknowledgments & part payments ss 3537 LAA
Persons under disability
S29(1): if a person is under disability at time CofA accrues, proceedings can be
commenced b/f expiration of 6 yrs from the date when the person ceased to be
under the disability or died (whichever 1st)
(2)(a): where right of action accrued to person under disability accrues on death
to another person under disability- further extension not allowed by reason
disability of 2nd person
(b) action recover land/money charged on land not brought after expiration 30
years from date right of action accrued
**(c) action to recover dmgs PI or dmgs resulting from death not brought by a
person after expiration 3 yrs from date person ceased to be under disability or
died (whichever 1st) if you make claim PI, then only 3 yr NOT 6 yrs
(3) Section NA
(a) in a case where the right of action first accrued to a person (not under a
disability) through whom the person under a disability claims; or
(b) to an action to recover a penalty or forfeiture or sum by way of a penalty or
forfeiture by virtue of an enactment save where the action is brought by an
aggrieved party.
Disability s29 LAA persons under disability
5(2) person taken to be under a disability while an infant or of unsound mind.
5(3) For the purposes of sub(2) person shall be presumed conclusively to be of
unsound mind:
(a) while involuntary patient under the Mental Health Act 2000; or (b) while
forensic disability client under the Forensic Disability Act 2011; or (c) while in
strict custody pursuant to an order of the ct or in safe custody pursuant to an
order given by the Governor in name of Her Majesty, under section 647 CC
Mistake or Fraud
s38(1)(a) where action is based upon fraud of D or Ds agent; or (b) the right of
action is concealed by the fraud of a person in (a); or (c) action is for relief
from the consequences of mistake; the period of limitation shall not begin to
run until P has discovered the fraud/mistake or could with reasonable
diligence have discovered it.
(2) s NOT enable action to recover or enforce a charge against or set aside a
transaction affecting property that
(a) fraud: has been purchased for valuable consideration by a person who
was not a party to the fraud & did not at the time know/reason to believe
that a fraud committed; or (b) mistake: has been purchased for valuable
consideration subsequently to the transaction in which the mistake was
made by a person who did not know/reason to believe that the mistake had
been made.
Personal injuries claims s30 & 31
S31(1) s applies to actions for dmgs for neg, trespass, nuisance or breach of duty
(contract/statute) where the dmgs claimed consist of/include dmgs in respect
of PI or dmgs re injury resulting from death of any person.
***(2)(a) material fact of a decisive character relating to the right of action
was not w/in means of knowledge of applicant until after the
commencement of the yr last preceding the expiration of the period of lim
for the action; and [some point starting within 3rd yr of 3 yr period]
(b) there is evidence to establish the right of action; ct may order that the
period of lim be extended so that it expires at the end of 1 year after that date
Three Questions from Do Como- codified in s31(2):
1. Where the facts which the appellant was unaware of material?
s30(1)(a) material facts incl: (i) fact of the occurrence of neg, trespass,
nuisance or breach of duty on which the right of action is founded; (ii) identity of
the person against whom the right of action lies; (iii) fact that the neg, trespass,
nuisance or breach of duty causes PI; (iv) nature/extent of the PI; (v) extent to
which PI is caused by the neg, trespass, nuisance or breach of duty;
Sola Optical Australia Pty Ltd v Mills: material= if it is both relevant to the issue to
be proved and is of sufficient importance to be likely to have a bearing on the
case; the requirements are satisfied by objective inquiry; [loss 80% arm function]
Do Como: facts to establish occurrence of negligence is material= unaware of
safety precaution and, therefore, did not know em/er failed to take reasonable
steps to provide safe system of work
2. If they were material, were they of a decisive character in relation to the
right of action?
(b) decisive character (ie, important/sign) only if a reasonable person
knowing those facts & having taken the approp advice, would regard them as
showing: (i) action would have a reasonable prospect of success and result
award dmgs sufficient to justify bringing the action ***Do Como:
OBJECTIVE: reasonable person receiving advice think succeed? ; and (ii)
that person ought in the person's own interests & taking the person's
circumstances into account to bring an action on the right of action
(2) appropriate advice means the advice of competent persons qualified in
their respective fields to advise on the medical, legal and other aspects of
the facts [eg, got medical report]
Do Como: lack of knowledge of precautions decisive: reasonable person think
succeed- obtained legal advice and obtained report from med practitioner;
3. If material & decisive, were the facts within the means of knowledge of
the P b/f the specified time after commencement of 3rd year and within
12m of finding out?
(c) a fact is not within the means of knowledge of a person at a particular
time only if (i) person does not know the fact at that time; and (ii) person has
taken all reasonable steps to find out the fact before that time. **Do Como:
SUBJECTIVE: did get advice? When?
Do Como: alternative system of work not within appellants knowledge- took
reasonable steps to ascertain it- not in fault that 1st solicitor gave insuff advice
***Do Carmo: 3 step test!! While appellant worked for R exposed silica dust
causing silicosis-tuberculosis; sought legal advice 76 but told no basis for CofA;
advice from 2nd solicitor in79 & learned precautions em/er could have taken;
sought extension; H: not until enquired with 2nd solicitor that learned of alternate
system of work = extension granted
*Brisbane South Regional Health Authority v Taylor: presumptive right to an order
once satisfy conditions of Act but applicant still has onus of showing that the
justice of the case requires the grant showing good cause and unaware of
material fact of decisive character does not alter burden to show justice of case
requires extension those facts enliven the discretion; justice best served by
CofA being litigated w/in limitation period, notwithstanding that a good CofA may
be defeated; ** discretionary- positive burden of demonstrating that the justice of
the case sufficient to make an exception
Sola Optical Australia Pty Ltd v Mills: fact is material to a Ps case if it is both
(4) Ct must not make order w/out hearing the person or giving the person an
relevant to the issue to be proved and is of sufficient importance to be likely to
have a bearing on the case; reqs are satisfied by objective inquiry; out of time
due to fault of solicitor- brought client to office to look at medical report- injury to
arm affecting ability to work, but medical report showed functionality of loss to use
of 80%; other side: not get extension b/c solicitor knew & not pass on; H: material
fact of decisive character must be person to person- no agency situation
w/solicitor- now she knew info that did not have before
Dick v University of Queensland: P used solvent which caused him injury; did not
learn of condition until 21 July 95 when diagnosed; prev saw docs before and no
connection b/c pins & needles and solvent that was using; March 96 contacted
lawyers re will & advised might have claim; instructed lawyers issue claim but not
until 25 July 96- 4 days over 12m extension; H: extension not granted- should
have brought action when became aware of injury July 95 b/c in 96 only advised
of consequences time ran when received the MEDICAL advice
**Castensen v Frankpile Australia: P injured at work, took time off, advised could
return, then subsequently injured (suffered 3 injuries and brought action against
1st employer); H: extension granted: (1) nature & extent of injury caused by D=
material fact- likely to affect future employment- unaware until MRI; (2) decisive-
once aware injuries likely to cause more than just pain/discomfort & impact work,
but serious & permanent impairment of working capacity= he had an action worth
pursuing b/c the quantum of dmgs was substantially diff from that which he could
have pursued otherwise (prior, dmgs not suff to justify expense & uncertainty of
litigation); (3) not until MRI results did he realise permanently affect employment
and injury worth suing for had taken all reasonable steps
Queensland v Stephenson: although material facts relating to a right of CofA
were known to the P at the relevant date, the decisive character of those facts
was not within Ps means of knowledge
COMMENCING PROCEEDINGS
Lawyers commencing legal proceedings on behalf of a client where there is no
legal merit may be an abuse of process: misuse of the courts procedure
Williams v Spautz: S in dispute w/ Prof W; Univ Counsel directed S to stop
campaign against W or re misconduct, then Counsel dismissed S; commenced
over 30 proceedings against others in authority at the Uni that played a role in his
dismissal; Appellants commenced proceedings seeking declaration that actions
for defamation were abuse of process; predominant purpose=pressure on uni to
reinstate him and reputation= improper purpose= abuse of process
White Industries v Flower & Hart: Appeal by firm of solicitors from order to pay
costs of the respondent; F/H rep developer (C) who entered K with WI- failed to
pay outstanding claims, so WI stopped working; Developer consulted M (F/H)
believed that developer did not rely on rep re sum of project- obtained advice
from Queens Counsel who believed developer had case; M advised developer to
commence proceedings in order to obtain better bargaining position claims
dismissed; WI cross-claimed seeking to join F/H to pay costs; H: lawyer obliged
to make own independent assessment re commencing proceedings/prospect of
success; abuse of process b/c proceedings not instituted to vindicate a legal right,
but for ulterior purpose= delay (pymt of sum $); appeal dismissed with costs by
solicitors **commencing/maintaining proceedings w/ no prospect of success
Steindl Nominees v Laghaifar: barrister that had drafted docs on behalf of L:
allegations w/ no evidentiary basis, hundreds of pages- many irrelevant, lengthy
facts and arguments, difficult to understand= expense & time other solicitors, no
arguable defence, application had no prospect of success; S seeking cost against
barrister b/c unreasonable perused proceeding on behalf L; H: what barrister did
problematic but not go so far to make personal cost order- duty to ct not waste
ct/other partys time; Davies JA: one thing present case which is barely arguable
but another to present case plainly unarguable and bound to fail
Vexatious litigants:
R 15(1) Registrar can refer originating process to Ct if considers it an abuse of
process, frivolous, vexatious for directions
(2) Ct may direct registrar: (a) issue originating process; or (b) refuse to issue
originating process w/out leave of the ct
PD 10/2014: supervised case list for self represented litigants (must follow re
commencing and conducting proceedings)
Power Ct: Fed & all state cts power to prohibit vexatious litigants from issuing
proceedings without leave or staying proceedings issued by vexatious litigant- [power
to limit commencement & continuation of unmeritorious proceedings]
Vexatious Proceedings Act 2005 (Qld)
S5 Applications for vexatious proceedings orders
(1) Any of the following persons may apply to the Ct for a vexatious proceedings
(a) A-G; (b) Crown solicitor; (c) registrar of the Ct; *(d) a person against whom
another person has instituted or conducted a vexatious proceeding; *(e) a
person who has a sufficient interest in the matter.
(2) An application may be made by a person (1)(d) or (e) only w/ leave of the Ct
(6)(5)(a) Ct have re to proceedings instituted or conducted in any Aus
court/tribunal; and (b) orders made ct/Tribunal
Making vexatious proceedings orders
(6)(1) Section applies if Ct is satisfied that a person is--
(a) person who has frequently instituted/conducted vex. proceedings in Aus; or
(b) a person who, acting in concert w/ a person subject to a vexatious
proceedings order, has instituted/conducted a vex. proceeding
(2) Ct may make any or all of the following orders--
(a) staying all/part of any proceeding in Qld already instituted; (b) prohibit person
from instituting proceedings; (c) any other order Ct considers appropriate
(3) Ct may make a vex proceedings order on own initiative or app of a person in 5(1)
opportunity of being heard.
Dictionary in schedule - Vexatious proceeding
(a) abuse of the process of ct/tribunal; and (b) instituted to harass, annoy, cause
delay or detriment, or another wrongful purpose; and (c) instituted/pursued
w/out reasonable ground; and (d) conducted in a way so as to harass or annoy,
cause delay/r detriment, or achieve wrongful purpose.
Freeman v NAB
(a) Take account of proceedings in other cts where they have authoritatively
resolved the particular issue against the person instituting the proceedings;
(b) "habitually & persistently"=more than "frequently"; "habitually": institution of
a proceeding occurs almost automatically; "persistently": determination, and
continuing in the face of difficulty or opposition
(c) "without any reasonable ground institutes a vexatious proceeding" is to be
determined objectively- immaterial that person may believe in the justice of
her argument & not understand that it has been authoritatively rejected;
(d) attempt to relitigate what has already been decided
F entered loan agmt w/ NAB & agreed: best endeavours to re-finance debt or sell
property; NBA brought proceedings to have property sold & ct made order; F then
instituted numerous proceedings/appeals- over 16 cases; H: none grounds appeal
made out- never accepted outcome of original mediationNB: vexatious litigant
determined OBJECTIVELY and litigants belief in justice of case immaterial
Markan v Bar Association of Qld: Ms 3rd action against BAQ, 3 appeals, 2
applications for special leave; BAQ: unmeritorious claims, likely continue- should
be dismissed as vexatious; M: cross claimed that BAQ be deemed vexatious; M
made wide-ranging complaints that cts below found immaterial; various actions-
doomed to fail, missing elements in CofA lack evidence, reference to legislation
that is not binding; H: vexatious- learned nothing from prior judgments-
proceedings with no merit/prospect for success= abuse of process; persistent &
history of baseless claims; Proceeding must be seriously and unfairly
burdensome, prejudicial, damaging, troublesome, harassing
Schultz v Rowe: R instituted 113 proceedings; dispute w/ daughters school for
dmgs; school instituted proceedings & granted inj prevent R publishing material
about school & serving originating process appealed & commenced proceedings
against school and board struck out no legit purpose, but to harass; past
proceedings, judges noted no purpose use court process circumvent orders
and undertakings, waste public resources claiming same thing; H: frequently
instituted vexatious proceedings; Consider: motives; lack of grounds for claims;
repetition/similar claims which have been rejected; persistent attempts to use
courts process to circumvent its decisions; wastage of public resources;
harassment to those subject to litigation
Originating process:
Describes parties
Details formal particulars
Includes an address for service
Identifies adequately the cause of action(s) and relief sought
R17: matters to be contained in the originating process
(1)(b) if solicitor appointed: residential/business address of P; name solicitor and firm
(if one), address solicitors place of business, address for service if not same as
stated, solicitors telephone number & fax; (4) DX may be included for service
R8(1) proceeding starts when the originating process is issued by the court
(2) Can be by claim or application
(3) an application in, about or pending trial, hearing/outcome of a proceeding is
not an originating process [interlocutory application]
NB: Registry may not accept a process that contains irregularities- eg, non-
compliance w/ prescribed form or rules
R 9: proceeding must be commenced by a claim unless rules require/permit the
proceeding to be started by application
R18: if suing in a representative capacity, must be stated on originating process [LG]
R19: P or solicitor must sign the originating process
R20: P must file copy originating process with ct- to be filed and kept by court
CLAIMS
R 9: proceeding must be commenced by a claim unless rules require/permit the
proceeding to be started by application
R22(1): A claim must be in the approved form [FORM 2]
R22(2): P must (a) state briefly nature of claim & relief sought; (b) attach a SofC
[FORM 16]; and
***(c) for claim filed DC or MC, show the court has jurisdiction to decide the
claim [R35]
R22(3): claim and attachment must be filed and then served on each D
URGNECY: R11 Proceeding may be started by application if (c) insuff time to
prep claim b/c urgent nature of relief sought [FORM 5]
R23: Claim to include stmt notifying the D of (a) time for filing NITD [R137: NITD
must be filed w/in 28 days after the day the claim was served] and (b) if not filed
default judgment possible
R24: life of claim (1) claim remains in force for 1 year from date of filing
(2) If not served on D & registrar satisfied reasonable efforts or another good reason
to renew, MAY renew for 1 yr at a time, starting day after claim would otherwise end
(4) Need leave to renew if stale for 5 years
(5) Before claim renewed, stamped and show period for which it is renewed
NB: if dispute about law, then must use application; factual dispute: C and SofC
APPLICATIONS: ***see MFT/Maguire
R10: Compulsory: proceeding must be started by application if an Act/Rules require
it and do not state the type of originating process to be used, or a type of
originating process (other than claim) is required/permitted under a law
R11: Permitted: Proceeding may be started by application if (a) issue of law &
substantial dispute of fact unlikely; or (b) no opposing party to proceedings/not
intend serve originating process; or (c) insuff time prep claim b/c urgent
R26: (1) applications in approved form [FORM 5; FORM 46- affidavit], (2) name all
respondents, (4) list affidavits relied on at the hearing, (5) specify orders/relief sought,
(6) if made under Act, name of Act and s #, (7) hearing date
*(8) If filed in DC or MC must show court has jurisdiction [R35]
R29: (1) if respondent served w/ application and affidavit(s) no req to file NITD.
(2) respondent may file/serve Notice of Address for Service [FORM 8]
(3) Ct can also require NAD to be filed and served
MFT Holdings v Booth: application made for declarations that R breached K for sale
of property and b/c breach, applicant entitled to terminate and forfeit deposit; I:
should commenced by claim?; H: proceedings relate to construction of contract [not
whether there was one]=matter of law= bring proceedings is by application, not claim
Maguire v Lynch: application against vet for refusing to hand over records of
treatment; vet refused to give info to applicant but willing to send copies of records to
new vet, so long as not copy & give to A; H: no legal basis for the order sought- just
application for someone to give something to someone else- no substantive issues at
stake & records are vets property; cannot bring application for order not entitled to
If act/rules says have to start by application, then must do so
s38: Partnership Act 1891 (Qld)
On application by a partner the ct may decree a dissolution
(a) if a partner permanently unsound mind; (b) if a partner (not one suing) becomes
permanently incapable of performing K; (c) if a partner (not one suing) guilty of
conduct prejudicially affect the carrying on of the business; (d) if a partner (not one
suing) wilfully/persistently commits a breach of pship agmt/conducts self in way not
reasonably practicable for other partner(s) to carry on the business w/ him/her; (e) if
the business can only be carried on at a loss; (f) any case circumstances ct render it
just and equitable that the partnership be dissolved. **NOT APPLICATION**
Rayment v Bower: Pship act not concerned w/procedural matters such as appro
originating process- any proceedings about pship is factual; s38 concerned to
empower a partner to seek the relief & does not permit/require proceedings to be
started by application proceeding to be started by claim
What if proceedings are wrongly commenced?
R13: if a proceeding started by claim should have been started by application: (a)
ct may order cont as application; (b) give directions for conduct of proceedings; (c)
any other order approp
R14: if the proceeding started by application should have been started by claim:
(a) ct may order cont as if started by claim; (b) give directions for conduct of
proceedings; (c) if approp- order any affidavits be treated as pleadings, along or
supplemented by particulars; (d) any other order approp
NB: R5- let parties continue; expediency
Oral application if urgent relief sought
R12: Oral applications by counsel/solicitor for applicant if urgent relief sought &
undertaking to file application within time directed by ct & ct considers it appropriate
[requires good ground and must follow in writing]
Details of parties
R6: Names of all parties must be included in an originating process
(3) if parties change, each doc filed after must reflect the change
NB: interests of justice, transparency and no special deals
J v L & A Services Ps worked in pathology lab dealing w/ specimens containing
AIDS; fearful of being socially ostracized & did not want names publicized; H:
anonymity refused- open justice is more consonant w/ not only public confidence in
the judicial system but also public acceptance of the real position concerning the
HIV/AIDS disease special prov which provide benefits not gen avail can be a
source of resentment and t/f counter-productive.
SRD v Australian Securities Commission: accountant applied for order to suppress
his name to preserve professional reputation; are cases where suppression nec to
prevent prejudice to admin justice- party w/ legit claim may be deterred from pursuing
that claim if publication reveal, for example (a) person suffering from a disease which
is stigmatised & could be prejudice or embarrass person/family; (b) publication of
evidence which was commercially sensitive, such as confidential info/secret industrial
processes might act as a deterrent either to a claim or to a W cooperating; function
open justice: allows the public to know accurately what and who is the subject of the
Court's proceedings; H: supress name/firm gives appearance special treatment by Ct
Directions/Orders once action under way Applications in a proceeding
R31(1) person/their solicitor must sign the application and file it
(2) must be in approved form [FORM 9]
(3) must name as respondent any party whose interests may be affected by the
granting of the relief sought
(4) applications can be made by person not a party to proceedings but must comply
with R 17
(5) must be filed and served on each respondent at least 2 business days b/t day
set for hearing application
(6) all parties may agree to adjourn
R32: oral applications- (1) party may make oral app; (2) ct may impose conditions
req in the interest of justice to prevent prejudice to the other parties
Defending Proceedings
R135: D must file a NITD
R137: NITD must be filed within 28 days from claim being served
R139: Requirements: (a) must be in the approved form [FORM 6], (b) have Ds
defence attached [FORM 17]; (c) must be signed & dated
R140: NITD must comply with contact details/address for service under R17
R141: NITD must be filed with registry where claim issued
R142: a sealed copy of NITD must be served on Ps address for service
CNITD
R144(2) challenge to jurisdiction or assert an irregularity must file CNITD
(4) After filing, D must apply for an order under R16 within 14 days
(5) becomes unconditional if fail to apply for order (R16- setting aside originating
process) or application is determined and the order is not made
(6) If no application CNITD becomes NITD & 7 days later D req to file def
(7) If D files unconditional NITD - D taken to submit to the jurisdiction & waived
any irregularities
FORM 6: NITD
FORM 17: Defence (D answering allegations in SofC)
FORM 7: CNITD
FORM 18: Defence and CC
SERVICE
Rationale: principle of natural justice that D should be notified of proceedings & may
also incl person not party proceedings
NB: usually: personal; ordinary: prescribed in rules; lawyer can accept- ask
NB: ex parte applications (ask ct make order w/out service; must explain why; eg,
protect property or evidence)
*R101: cannot serve on Good Friday or Christmas Day unless ct order
*R103: service on a person after 4.00 pm taken to have been served the next day
(careful if time limit)
Personal service
R105(1): originating process to be served personally (C/SofC); (2) if D files an
UNITD, service is taken to be effected on the day the NITD is filed, or if D served on
an earlier day, then it is the earlier day [***R137: lim 28 days]
R106(1): Person serving required to give doc/copy to the person intended to be
served; (2) If not accept, can put down in persons presence & inform re what doc is;
(3) Person does not need to see the original document
Ordinary service
R112: If UCPRs do not req personal service, then doc can be served # of ways
(a) Leaving it with adult living at the address
(b) No-one at address, leaving where reasonably likely to come to persons attn
(c) Denied access, doc to be left where reasonably likely to come persons attn
(d) Post to relevant address
(e)(i) Fax; R122: what to incl on fax cover page (details, names, address, etc)
(e)(ii) Email
(f)(i) If solicitor then by DX, fax, email
(g) Electronic means prescribed by practice direction
R112(2): (1)(f)(i) taken to have been served bus date after left in DX
R112(3): relevant address: (a) perons address; (b) not have address- (i) last place whichever is longer: (i) 21 days; (ii) period in which the appearance would have been
of bus/residence; (ii) if individual suing/being sued in name pship- principal or last
place of bus of pship; (c) if Corp not have address- head/principal/registered office
Other forms of service: solicitor, substituted, informal, agent, contract
R115: Solicitor (1) solicitor may accept service on behalf party; (2) must make note
on doc that accept service; (3) taken to be served on party unless prove solicitor not
have authority to accept service ****personal or original****
NB: *get written instruction from client re authority- sig, date, witnessed
R117: Informal service (1)(a) if doc came into possn of person to be served (not as
required); AND (b) ct satisfied possn on or before particular day- ct may order service
on day of possn or another day stated in order
R118: Service on Qld agent if contract entered into in Qld- (1) if person
living/carrying on business outside Qld enters K through agent living in Qld, ct may
give leave for originating process to be served on agent (3) must immediately send
copy of each order and originating process to principal to (4) principals address
outside Qld by prepaid mail
R119: service pursuant to a contractual agmt to serve on another person
Proving service
R120: affidavit of service (to prevent argument that never served)
(1)(a): Made by person effecting personal service, inlc: name, time, date, place,
name of person served and how identified or
(1)(b): Relevant facts & dates showing service, can be made on info given to/belief of
server & must state source of the info
(2)(a): Have document served as an exhibit
(2)(b): Mention document sufficiently in order to be identified
NB: R122: special requirements for service by fax
Magistrates Court
R111: Personal service in MC proceedings (1) all docs MAY be served under
part 4 [R105/6]
(2): BUT doc required to be served personally must NOT be served
112(1)(b)(c)(d)(e)(g); (a) leave w/ adult; (f) solicitor
(3): BUT if person to be served resides/bus >50km from nearest ct, doc may be
served by post to residential/business address
Service on specific defendants
Corporations R107: doc required to be personally served on Corp must be served
under Corps Act/applicable law
CORPORATIONS ACT 2001 - SECT 109X
(1) Doc may be served on company by:
(a) leaving it at/posting to registered address; (b) personally delivering to director who
resides in Aus/external Territory; (c) if liquidator appointed, leave it at/post to
liquidators office from address ASIC; (d) if administrator appointed, leave at/post to
address from address ASIC;
(2) Doc may be served on director/secretary by leaving it at/posting to alternative
address from ASIC; BUT only applies to service on D/secretary: (a) in capacity as
D/S; or (b) for purposes of conduct as D/S
Partnerships
R114(a) On 1 or more partners, (b) on a person at the principal place of business
who appears to have control or mgt (prob NOT receptionist), (c) if registered under
Partnership Act, at the registered office
(2) If 1 or more partners served, all partners deemed served
(3) Also serve on any person P seeks to make L as partner but not partner at time
originating process was issued
Unregistered business
R113(2): served by leaving a copy at persons place of business w/ person who
appears to have control/mgt of the business (business carried on in name other than
persons name, but unregistered)
Young people/ MINORS
R108(1): served on litigation guardian; (2) If none, on parent/guardian/adult who has
the care of the young person or with whom they live
Persons with impaired capacity
R109: (a) served on litigation guardian, (b) if none, person entitled to be guardian or
(c) if nether, adult who has the care of the person
Prisoners
R110: (a) public trustee (if property proceeding or recovery debt/dmg), or (b) litigation
guardian, or (c) person in charge of prison
Service outside the jurisdiction outside Qld:
Previously at common law could not serve originating process outside the
jurisdiction: Laurie v Carroll; overcome by SEPA
R123: service outside Qld but within Australia- service to be in accordance with
SEPA
s13: Applies to civil proceedings
s16 need prescribed notice under regs attached to process served [if service C+SofC
have to attach notice setting out that serving under the leg & time frame that have to
file NITD]
s15(1): Initiating process issued in a State may be served in another State
(2): Service on an individual must be effected in same way as service of initiating
process in the place of issue
(3): Service on a company/reg body must be effected in accordance with s9
(4): Service on any body corporate must be effect in accordance with s10
(5): Service on a body politic (Cth/State) must be effected in same way in which
process of the SC of the State in which service is to be effected may be served on
body politic
s17(1): If person served req/permitted to enter an appearance under law of the place
of issue, period after service w/in which the person may enter an appearance is: (a)
req/permitted if the process served in place of issue [Qld: 28 days]; (b) such shorter
period as ct allows on application (2) ct considers: (a) urgency; (b) places of
residence/bus of the parties; (c) whether related/similar proceedings commenced
against the person/another
NB: can make service more complicated- in state only has 10 days NITD
Outside Australia
R124: when service permitted w/out cts leave in proceedings based on
(a) CofA arising in Qld, proceedings (b)(i) about property in Qld, (e) admin of estates,
(g) contract made in Qld, (k) proceedings re tort committed in Qld etc
R125: Service also applies to CC and third party notices
**SAFEST way outside country is personally- process servicing is the safest
R 129: If service outside Aus authorised, then pt 1-5 apply to service ***(R100 122)
go back and pick relevant rule
Substituted service
R116: Substituted service (Discretionary) (1) if impractical to serve, then ct may
make order substituting another way for service; (2) ct may order specific steps to be
taken; (3) ct may order doc taken to served on happening of specified event or time
(eg, ct order: service 2 bus days after posted); (4) Ct can make an order for SS even
though person not in Qld/was not when the proceeding started
Grounds for making the order(s):
For an order to be made, must prove: Porter v Freudenberg; Foxe v Brown
a) P, using reasonable effort, is unable to effect personal service (standard:
reasonableness, so as to show practical impossibility)
b) Method of SS is likely to bring proceedings to knowledge of D
Foxe v Brown: P passenger/D driver when accident occurred; P started proceedings
by Writ & SofC in NSW; car registered in Qld and writ became stale; P could not find
D to serve-applied for order to serve 3rd party insurer; H: must show, despite effort,
unable to serve and method likely to bring writ to Ds attn; *diff situation, as 3rd party
insurer would ultimately pay if P succeeds; [meant that D prob not become aware of
writ] *MV case ct permit serve insurer
Permanent Mortgages v McKenna: 2 sets of proceedings; C/SofC served on D1 by
dropping on ground after refusing to accept; process server also had docs for D2-
dropped on ground & explained nature of docs; Made 4 additional attempts serve D2;
could not longer access property (gated); search confirmed D1 & D2 reside same
address; H: D2 evading service- ct satisfied D probably aware claim/had copies due
to D1; order: SS to be mailed to 2 addresses and deemed to be effected 2 business
days after
Permanent Custodians v Massey: Default under loan agmt; P applied SS to D email
& lawyers email; leading up to application, Ps lawyers spoke to D on mobile &
refused give address, only email and location not know, paralegal got reply from D;
email also sent by lawyer, but used diff addresses; H: not satisfied that if make order
that service will be received by D/lawyer directly
ANZ v Woodman: C/SofC for recovery of land due default on loan; process server
went to property & neighbour provided Ps moms phone number; mom said living in
Emerald, but provided contact details; got address, but no one home; told by another
resident that no longer tenant-contacted real estate agency who agreed to pass msg
on; solicitor further search & parents address- search confirmed parents address; H:
P had done enough - serve by posting to parents address + post office box,
deemed effective 4 days after posting
Cth Bank of Australia v Diplock: recovery of land; process server went residence 7x;
obtained contact # from electoral search- called 2x & D declined accept docs; H:
clearly evading service & impractical to serve; order: service on post address &
deliver docs personally to that address, effective 2 bus days
BofQ v Emily Jane Stevenson: claim for car subject to goods mrtg; evidence D living
with mom, but unwilling to say where D was; H: Era when Ds prone to be elusive;
common sense & exp tell that sign costs can be incurred in repeated attempts track
down D; order may be req to permit proceedings to advance toward resolution;
unless clearly evading, will not make cost order against D
Cth Bank of Australia v Goudge: repossn of land, tried to serve D at property- no one
there; told by neighbours Ds moved & gave new address- tried to serve- male
answered but said not know D; process server then called D phone & heard ringing
in house; H: person evade, order service by post- deemed effective 4 days after
posting
Qld Construction & Engineering v Wagner: primary object is to bring proceedings to
knowledge to person sub service is sought and bring whole proceedings so that
person can take steps to protect their interests and rights
Citigroup v Weerakoon: Request that copy of the claim to Ds "Facebook page";
H: FB pages uncertain-anyone can create an identity that could mimic the true
person's; some info on page does not show with real force that the person who
created the pg might indeed be D
Flo Rida v Mothership Music: evidence b/f primary judge did not constitute a
sufficient basis for the making of the substituted service by means of Facebook;
the evidence did not establish, other than by mere assertion, that the page was in
fact that of Flo Rida and did not prove that a posting on it was likely to come to
his attention in a timely fashion
PARTIES
R61: ct can order addition/removal of party(s)
Necessary Parties
**R62(1): Necessary parties- Each person whose presence is necessary to enable
the ct to adjudicate effectually & completely on all matters in dispute must be
included as a party to the proceeding
(2) Ct may order a person to be included as a party if presence nec to enable the ct
to adjudicate effectually & completely on all issues raised
Joint Entitlement
R63: Joint Entitlement: if P seeks relief to which another person is jointly entitled,
that person(s) must be a party to the proceeding
R64: Joint or several (on own) liability
(1) If P seeks relief against a D who is liable jointly w/ another person and also liable
severally, the other person need not be made a D/R to proceeding.
(2) If persons are liable jointly, but not severally, under a contract, and a P seeks
relief in relation to contract against some but not all of the persons, the ct may stay
proceeding until other persons are included as Ds.
Multiple Parties
**R65(1): Inclusion of multiple parties in a proceeding- 2+ persons may be Ps or
Ds if: [*connection]
(a) if separate proceedings were brought by/against each and a common question of
law or fact may arise; or (b) all rights to relief sought (joint, several, alternative) arise
out of the same transaction/events
NB: (2) 2+ persons may be Ds if:
(a) doubt as to (i) person from whom P is entitled to relief; or (ii) respective amounts
for which each may be liable; or (b) dmg or loss has been caused to P by more than
1 person, whether/not factual connection b/t the claims apart from the involvement of
the plaintiff or applicant
R66: Identical interest in relief unnecessary- not nec for every D to be interested
in all the relief sought or in every CofA included in a proceeding
Misjoinder of parties: more than an irregularity & proceedings cannot proceed
until defect rectified
Payne v Young 7 Ps improperly joined due to absence of a common question of
law & lack of participation in a common series of transactions; Ps assert that each
has a right to relief arising out of the same transaction/ series of transactions;
each carries on business as an abattoir; under leg, animals must be inspected &
inspection fee must be paid; varying scales/fees- amt due is not common to Ps-
NOR are the inspection fees being paid to same D; H: none of Ps have any
interest in claims ($) that other Ps making; right to recovery of sums is individual
to each P & D- arising out payment by particular P to particular D & on inspection
diff animals; despite basis for claim same (relief by refund for invalidity)
R67: Parties incorrectly included/not Despite R62/3, ct may decide a proceeding
even if a person incorrectly included/not included as a party & may deal w/
proceeding as it affects the rights of the parties b/f it
R68: Inconvenient inclusion of a party (2)(a) ct can order separate trials, (b)
award costs to a party for attending, or relieve party from attending trial, (c) stay a
proceeding until another decided, (d) any other order; (1) applies if including party
may delay trial, prejudice another party or is inconvenient
***R69: Including, substituting or removing party (1) Ct may order:
(a) a person who has been improperly/unnec included as a party, or ceased to be an
appro/nec party, be removed from the proceeding; or (b) include: (i) person whose
presence nec to enable ct to adjudicate effectually & completely on all matters in
dispute; (ii) person whose presence would be desirable, just & convenient to enable
ct to adjudicate effectually & completely on all matters
R69(2): cannot include/substitute parties after end limitation period unless new
party is a nec party under R69(2) (a) (f)
R69(3): if an order made substituting/including a party, ct can make directions as to
future conduct of proceedings
**R70: person can apply to be included as a party but must be supported by an
affidavit showing the persons interest in (a) matter in dispute; or (b) matter in dispute
to be decided b/t the person and a party to the proceeding; (2) app to include person
as D must be served on all parties, including added party
What happens when a party is dead or dies?
R71: D/R dead at start of proceeding- applies when originating process is issued D
is dead and grant of representation has not been made & CofA survives persons
death; (2) if person filing process knows dead, then originating process must name
as D the estate of deceased; (3) If after start of proceedings, the proceedings is taken
to be against persons personal rep, all docs must name personal rep as D
R72(1): if death during proceedings, leave of ct required before continuing and court
may make appropriate directions
NB: if P dies (CofA survives) and no order made substituting another party,
proceeding may be dismissed
What happens if there is a change to the parties?
**R74: Amendment of proceedings after change of party
(1) If order is made changing/affect identity/designation of a party, the P must:
(a) file an amended copy of the originating process w/in time specified; if not
specified, w/in 10 days after the order; and (b) serve amended originating process on
any new party w/in time in order. (2) P must note on the amended copy a reference
to the order, date of order, date amendment filed
(3) W/in 10 days after order, applicant must serve copy of order on every continuing
party/party that becomes party b/c order
(4) If order made, the proceeding against the new D starts on the filing of the
amended copy
(5) However, for a limitation period, proceeding by/against new party is taken to
have started when the original proceeding started, unless the court orders otherwise.
(6)(a) new D who is a substituted: everything done in the proceeding b/f has the
same effect as it did for original D; and (b) new D: the proceeding must continue as if
were an original D
(7) Sub (6) N/A: (a) filing NITD by original D; (b) admission by original D; (c) cost
order for/against original D
Corporations can sue and be sued
If Corp in liquidation cannot maintain proceedings w/out ct leave: CA s440D
Once winding up proceedings brought cannot commence proceedings: CA s471B
Partnerships Rr 82 88
R82: proceedings started by/against a pship in pship name; includes proceedings
b/t pship and 1 or more of partners
R83: 2 or more partners can start a proceeding in pship name; proceedings against
alleged partners may be brought against alleged pship in pship name
R85: NITD filed in names of individual partners but proceeding cont in pship name
(each partner submit to the jurisdiction)
R87: Defence filed in the name of the partnership
Business names R89 - 92
R89: Proceeding can be started against name reg under Business Names Act 1962
R91: NITD to be in the name of the person (the proprietor registered under the
Business Names Act)
Unregistered Business
R90: If business name unreg, can commence proceedings against bus name, but
R92: need to find out names of persons carrying on the business under the business
name & amend the proceedings so cont against D and not bus name
Litigation guardians R93 98
R93: (1) If under a legal incapacity can only start/defend proceedings by LG
(2) Everything in the proceedings is done by the litigation guardian
R 94 Who may be a litigation guardian
(1) A person may be a LG if (a) not under a legal incapacity; and (b) has no interest
in the proceeding adverse to the interest of the person under incapacity; (2) If auth by
Act to conduct legal proceedings in the name of/for a person w/ impaired capacity,
authorised person is, unless ct orders otherwise, entitled to be LG
(3) A corporation may not be a litigation guardian.
Representative party (bring action on behalf group ppl/entities): R75 77
R75: proceeding may be started/cont by or against 1 or more persons who have the
same interest in the subject matter as representing all of the persons who have the
same interest and could have been parties in the proceeding.
R76: At any stage in proceedings, ct can appoint 1 or more parties named in
proceedings/another person to rep persons having same interest
CAUSES OF ACTION
Multiple proceedings:
NB: proceedings on foot, then D decides sue someone else- if same
transaction/issues of fact/law, ct power hear together & determine order of hearing
them
R78: Consolidation of proceedings: (1) ct can order consolidation of proceedings if
(a) same/sub same question involved in all proceedings and (b) the decision in 1
proceeding will decide or affect the other proceeding(s)
R79: Ct can order 2+ proceedings to be heard together or in a particular sequence
R80: Directions: if ct orders proceedings be consolidated/heard together/sequence,
can give directions considers appropriate for conduct of proceedings
R81: Variation of order: Before/during hearing of consolidated/heard
together/sequence, ct may order proceedings to be sep/heard in another sequence
Causes of action:
DEF: CofA is every fact the plaintiff must prove, if traversed, to support a right to
judgment. Evidence does not form part of a cause of action. Under the rules the P
may unite in the same action several causes of action (Cairns)
R60: P can include in the proceeding as many causes of action as P has against D,
but must be one of:
(a) Common question of law or fact
(b) All rights to relief arise out of the same transaction or event or series
of transactions or events
(c) With the courts leave, either before/after the start of the proceeding
[may not know CofA at start]
R68: Inconvenient inclusion of CofA: if CofA would delay trial, prejudice another
party or is otherwise inconvenient the ct can order separate trials, award costs,
relieve a party from attending, stay the proceeding until the trial b/t other parties is
decided on condition D accepts findings of fact, make another appropriate order [just
like consolidation; R5]
Causes of action estoppel/Res judicata:
NB: already proceedings & party decide to bring another so CofA not joined at the
time when 1st commenced
Henderson v Henderson: Ct requires parties to litigation to bring forward their whole
case and not, except under special circumstances, open the same subject matter of
litigation which might have been brought forward but omitted to do so due to
negligence, inadvertence or accident [not to have 2 bites at the cherry- bring forward
whole case]
****Port of MLB v Anshun: A1: PMA and A found liable in neg (PI) to worker injured
by a crane operated by A, hired from PMA; L apportioned: 10%A/90%PMA; A2:
PMA tried recover 90% from A under indemnity agmt; H: res judicata b/c should
have been def in A1 [bring claim at same time] new claim so closely
connected w/ subject matter of 1st action [all about same issue] that could be
expected to be relied upon as a def to claim; should have enabled relevant issues
to be determined 1 proceeding
Gibbs v Kinna: Employee dismissed & awarded compensation for wrongful
termination in Industrial Relations Court; Brought another proceeding in MC for dmgs
for breach employment K [old Trade Practices Act & Fair Trading Act]; MC: MC claim
dismissed- should have been joined to statutory claim in original proceeding; Appeal:
later claims could have been introduced into earlier proceedings BUT other factors
that indicated that employees course of action not unreasonable: limited in IRC to
raising the statutory claim & new claims would have to be adjournment & application
to transfer new proceedings (IRC could not hear sub claims) causing delay; NOT
estopped
Two considerations to determine whether failure to raise CofA
unreasonable:
(1) CofA must be one that could have been raised in the previous proceeding (could
have but switch court);
(2) Same/sub same facts will arise for consideration in 2nd proceeding
Rippon v Chilcotin: original action brought by buyers of business against sellers for
breach warranty re financial statements attached to business contract- unsuccessful;
Brought another action against accountants who prepared the financial statements
for neg misrep, which induced them to enter same K; H: abuse of process- trying to
re-litigate the issue - claims against accountants were so relevant to the subject
matter of first action that unreasonable for buyers not to rely on them (should have
been a defence); applied Anshun- new proceedings effecting integrity of the
administration of justice and raised possibility of conflicting judgments
**********EXTENDED ANSHUN: applies to non-party/party not part of original
proceeding
PLEADINGS
How to plead a claim ie material facts and required particulars
S of C: introductory matters, incl parties, jurisdiction; body: substantive
allegations (material facts & particulars); and claim (prayer) for relief
Sch 4 Dictionary: Pleading means:
(a) for a P a concise statement in a claim of the material facts on which the
plaintiff relies; or
(b) for a D the defence stated in a NITD or a defence;
and includes a joinder of issue & an affidavit ordered to stand as a pleading.
NB: Joinder of issue: D respond to SofC [admit/non admit, etc]= parties have taken
issue on things that are in dispute
PURPOSE:
(a) Set out material facts intended to prove at trial; (b) informs parties of the dispute;
(c) Informs ct about dispute; (d) prevent trial by ambush-no surprise W
Banque Commerciale v Akhil Holdings: Mason CJ and Gaudron J: function of
pleadings is to state with sufficient clarity the case that must be met. Ensures the
basic requirement of procedural fairness that a party should have the
opportunity of meeting the case against him or her and to define the issues for
decision. The rule that, in general, relief is confined to that available on the
pleadings secures a party's right to this basic requirement of procedural fairness.
**R5
Virgtel v Zabusuk: application by respondent to strike out paragraphs in SofC; H:
confirmed Banque- pleadings identify the dispute(s) b/t parties which ct has to
adjudicate integral that pleadings stated w/ sufficient clarity the case that has to be
met; SofC: unclear in what it alleged- pleaded alternative & inconsistent cases
without properly isolating the facts relevant to each alternative claim; confusing; lack
specificity= Ps case not being made out [too general & vague] order to supply
further & better particulars and struck out paragraphs
UI International v Interworks Architects: pleadings extend beyond merely narrowing
issues- it is about procedural fairness; H: where complex has (as is here), not
sufficient to plead bare elements, but to ensure procedural fairness to D, must also
include basis on which Ps seeks to prove its case complex case *more detail where
complex
FORMAL REQUIREMENTS
R146: Pleading must state proceeding number, description of the pleading, be filed,
state date filed, is signed by solicitor or party, pages and paragraphs consecutively
numbered, paragraphs to contain a separate allegation (one material fact per para),
state counsels name if settled by counsel (barrister check draft, then has to be
noted), under R 164 (except for reply) informing party about time for serving
pleadings
RULES ON PLEADINGS:
R149(1) each pleading must be:
(a) As brief as the nature of the case permits
(b) Contain a statement of all material facts but not evidence
(c) State specifically a matter so party not taken by surprise
(d) State relief claimed
(e) If a claim or defence under an Act, specific provision
R149(2): Pleading law- Can plead a conclusion of law if all material facts pleaded
[eg, accident cased by Xs negligence, only if all particulars of negligence are
pleaded, then point of law for ct to determine]
R150: Specific matters to be pleaded breach K, damages, limitations defence,
estoppel, interest (including rate & calculation), misrep, negligence or CN, payment,
performance & anything else required by a form or practice direction
R151: Presumed facts: not required to plead fact if (a) law presumes fact in partys
favour; (b) burden of proving fact does not lie on party
R152: Spoken words and documents: unless precise words are material, may
state effect of spoken words or doc briefly
R153: Condition Precedent: an allegation of a CP necessary for the case of a party
is implied in the partys pleadings
R154: Inconsistent allegations/claims: party can make inconsistent
allegations/claims only if they are pleaded in the alternative
*R155(1) DAMAGES (1) must state nature & amount of damages
(2) If the claim is for general dmgs then must state (a) nature of loss or dmgs, (b)
circumstances in which loss suffered, (c) Basis on which amount claimed has been
worked out
(3) Also plead each type of general damage and amount
(4) Plead anything relating to assessment of dmgs so as not to take a party by
surprise
Liquidated and unliquidated damages
Particulars: (not broad stmts; enough info for D work out position/prepare trail)
R157: Particulars: pleading must contain particulars necessary to define issues for
trial and prevent surprise at trial, enable opposite party to plead and support a matter
specifically pleaded under R 150
R158: Particularise loss & damage: (1) If claim dmgs, pleading must contain
contain particulars of the payment/liability; (2) If party claims exemplary/aggravated
dmgs, pleading must contain particulars of all matters relied on for the claim
R159: Interest: (3)(a) plead amount on which interest claimed, (b) interest rate, (c)
when interest claimed from (dates), (d) method of calculation
R160: Way to give particulars: particulars stated in the pleading OR in a separate
document and filed with the pleading
Allianz Australia v Newcastle Formwork: purpose of particulars is to assist in defining
the issues at the trial, whereby the opposite party knows the case it has to meet and
will not be taken by surprise, so that the evidence to be led can be appropriately
confined and costs can be limited
fine line b/t giving particulars & disclosing E by which that case is to be proved. It
all depends upon what is nec to guard other party against surprise
H: request for particulars was excessive and went beyond what was necessary to
prepare the case (other names, names and addresses all hospitals, doctors, health
absences prior to accident, med certificates, etc.)
Bloeman v Atkinson: P alleged an entitlement to a trust fund pursuant to a deed of
settlement in SofC referred to the deed & claimed money held in trust under the deed
with no detail pleaded about the deed, relevant clauses to the claim or the exact
details relating to the claim; H: order for P to supply particulars as nature of claim
could not be ascertained from the pleading
Jenkins v Martin: J claimed damages from former barrister & solicitor. Filed 8 SoC
with pleadings comprised of correspondence the D was doing for the P; H:
Docs do not inform the 1st D of the case he has to meet & they are insufficient to
indicate proper consideration has been given to formulating & pleading the case-
SoC should be struck out the proceedings against each of the Ds should NOT
be dismissed as there could be an arguable case if pleaded correctly J had to
provide D with any proposed further amended SoC with no less than 21 days
before filing & must not file without first obtaining leave/consent from all Ds
R161: Application for order of particulars (1) party can apply for an order for
further and better particulars
(3) Making of this application does not extend time for pleading
R162: Striking out particulars: if the particulars will prejudice or delay fair trial, are
unnecessary or scandalous, frivolous or vexatious, otherwise an abuse of process
court can strike out particular and award costs
R163: Failing to give particulars: if no compliance R161 court can make orders,
including judgment
PROGRESS OF PLEADINGS (P replies to Ds defence & answers Ds CC)
R164: Time for serving answer CC and reply: (1)(b) Ps reply/answer to Ds
defence/CC to be filed & served within 14 days after the day of service of defence [or
if D to CC not a party within 28 days after day of service of CC]
R169: Close of pleadings: if pleading served after def/answer to CC, on service of
pleading otherwise 14 days after service of defence
R165: Answering Pleadings: party can plead a denial, nonadmission, admission,
another matter (admit, deny or not admit)
[NB: 4 options: (1) admit what P saying; (2) deny what P saying; (3) non-admit- do
not know about this; (4) confession & avoidance- yes, this happened, but this is
why otherwise, deemed to admit must answer each allegation]
R166: Denials & nonadmissions: allegation of fact is deemed to be admitted by
opposite party unless allegation denied or not admitted or r168 applies
(2) If suffering a legal incapacity no admission due to failure to plead
(3) Can ONLY plead a non admission (I dont know what they are alleging) if party
made inquiries to ascertain truth of allegation & inquiries are reasonable bearing in
mind time constraints and party remains uncertain as to truth or falsity
(4) denial/nonadmission must explain belief why allegation of fact untrue/cannot be
admitted (5) if not, will be deemed an admission
(6) Cont obligation make inquiries & amend pleading-if plead & nonadmission
R167: Unreasonable denial or non admission: if ct considers allegation of fact
denied or not admitted should have been, may order party to pay additional costs
caused by denial/nonadmission
R168: Implied nonadmission: every allegation of fact made in last pleading filed &
served before close of pleadings taken to be a non admission unless party admits an
allegation
R 171: Striking out pleadings: if a pleading discloses no real CofA or defence, or
will prejudice or delay fair trial, is unnecessary or scandalous, frivolous or vexatious,
is otherwise an abuse of process, court can at any stage strike all or part of the
pleading & order costs on an indemnity basis [NB: normally does not end
proceedings; usually ct allow re-plead]
COUNTERCLAIMS R175 185
R176: Counterclaims: CC can be made in relation to CofA arising after the issue of
the claim
R177: CC against P: D can make CC against P, instead of bringing separate
proceeding
R178: CC against additional party: D can make CC against party other than P if:
(a) P is also party to CC; and (b) either (i) D alleges other person liable with P for
subject-matter of CC; or (ii) S claims against other person relief relating to original
subject matter of the proceeding
R179: Pleading and serving CC- must be in approved form [FORM 18] and
included in the defence [FORM 17] and served at the same time as the def
R180: Answer to CC: D to CC may plead to the CC by serving an answer
R184: Judgement for balance: if D succeeds on CC against P and there is a
balance in favour of 1 of the parties, court may give judgment for the balance
(subtract and party gets remainder)
Third Party proceedings R191208 D can join TP to proceedings b/t P & D
R192: Reasons for TP procedure: D files a TP notice when seeking
contribution/indemnity, a claim for relief/remedy from non party to original
proceedings BUT relief/remedy connected to original proceedings and substantially
the same as some relief claimed by P [requires question/issue related w/ original
subject matter of the proceeding to be decided not only between P & D but also
between either of them and non party]
R193: Content of TP notice: D issues TP notice in approved form [FORM 14],
states nature of claim & attach SofC
R194: Filing TP notice: cannot file until D filed defence & TP notice must be filed 28
days after defence filed or P agrees to extended time
R195: Serving TP notice: to be served as soon as practicable after filing & in same
way originating process is served on a D
R196: Effect of service on TP: TP becomes party to proceeding and same rights in
relation to defence as if sued in ordinary way by D
R197: NITD by TP: D becomes P to TP claim and TP becomes D & must file NITD
w/in 28 days after served with SofC
R198199: TP Party Defence & Pleadings - TP files a defence and if TP files a
pleading must serve pleading on all parties
ALTERNATIVE DISPUTE RESOLUTION
DEF: Dispute resolution refers to all processes that are used to resolve disputes,
whether within or outside ct proceedings. DR processes may be facilitative,
advisory or determinative...dispute resolution processes other than formal judicial
determination are often referred to as ADR. (NADRAC)
NB: read Civil Proceeding Act with UCPR
Dispute resolution includes:
Determinative: involve TP dispute investigation (formal: trial/informal hearing: out of
ct), making a determination, binding/non-binding
o Eg, cts, arbitration, mini trials, med /arb: if med unsuccessful, then go to arb
(legally binding award)
Facilitative: involve neutral TP who assists parties to reach a resolution (empowers
parties to make decision)
o Eg neg, mediation (preferred method), conciliation (like med, but
conciliators tend to give parties perspective of what outcomes are likely to
be if the matter goes to court)
Advisory: involve TP investigation & giving advice on issues and outcomes
(building/construction disputes)
o Eg, conciliation (tend to give parties more perspective of what outcomes
likely to be if go court), early neutral evaluation, case appraisal, expert
appraisal
NSW Couriers v Newman: McClennan J: All practitioners...should be mindful of the
possibility that direct neg ...might bring resolution of their clients problems. Proper
discharge of a practitioners obligations...reqs them to inform the client of the
possibility of neg and to raise the possibility with the opposing parties
representatives, b/f significant costs have been incurred in the preparation of the
matter. (traditional role lawyer: adversarial; lack training in DR)
ADR IN QLD COURTS Civil Proceedings Act & UCPR
NB: Trial dates may not be set until ADR process followed [registrar may req]
s37: Objects ADR: opportunity to participate in ADR, achieve negotiated
settlements, improve access to justice, reduce cost & delay, little formality &
technicality
*s42: Parties may agree to ADR process: must file consent order [FORM 33]
s43: Court may order ADR
R319: ct may direct registrar to give written notice to parties that dispute
referred to ADR
R320: Referral may be made (a) on application of a party; or (b) if proceeding
is before the ct
R321: if dispute referred ADR, dispute and all claims stayed
s44: Parties must attend, must not impede ADR convenor (process) or sanctions
apply UCPR
R322: When does a party impede ADR process: if party fails to: (a) attend;
(b) participate; (c) pay amount required to pay under a referring order within
stated time (likely sanctions= cost penalties)
s45: Procedure for case appraisal: CA decides procedures to be used BUT must
finish case as quickly as possible; (2) CA may: receive evidence; examine Ws,
administer oaths to Ws; ct may give directions about procedures
s46: Subpoenas: MAY subpoena to attend CA but NOT mediation
s47: Party unable to pay costs: If party cannot pay % of ADR costs, ct may make
order approp in the circum if someone disadvantaged/cannot pay (usually shared)
s48: Agreement at mediation: if agree on resolution, must be written down &
signed by each party & mediator (then it has the effect of being a compromise and
therefore enforceable)
s49: Mediators certificate: as soon as practical after mediation finished, mediator
must file certificate in approved form [FORM 35] & decision, if any
s50: Orders giving effect to mediation agmt: Party can apply for order giving effect
agmt reached ONLY after mediators certificate has been filed
s51: Orders giving effect to CAs decision: party may apply for order giving effect
to CA decision ONLY time for electing to go to ct have expired;
R343: election must be filed within 28 days after CAs certificate filed
in the registry period passed [FORM 36]
**s52: Immunity: (1) ADR convener- same protection SC judge; (2) party- same
protection & immunity as if b/f ct; (3) W- same protection & immunity as b/t ct; doc
same protection as if produced before ct
s53: Admissions: evidence of during ADR process admissible at trial/other civil
proceedings ONLY if parties agree
s54: Confidentiality: ADR convenor MUST not disclose info from ADR; Exceptions:
(2) Reasonable excuse: (a) parties agree; (c) statistical purposes; (d)
inquiry/proceeding about an offence happening during ADR process; (e) fraud
alleged to have happened during ADR process
MEDIATION
s40 CPA: Defines mediation: process under the rules in which the parties use a
mediator to help them resolve their dispute by negotiated agreement without
adjudication
NB: Mediator conducts the process of mediation along strict lines so as to define
dispute comprehensively, focus on parties needs & interests, assist neg, develop
creative options/solutions w/the parties which the parties can apply to the problem
avoid focus rights/entitlements **acknowledges views/feelings; self-determination
is key
When is mediation not appropriate?
Power imbalance (eg, employer/employee)
High levels of conflict (when ppl so polarised that know will not
proceed/communication)
Capacity (come to table without capacity negotiate on own behalf)
Cultural issues (religious diff, genders not to be in same room, etc)
Lack of commitment (not wanting to be there, but told by lawyer, etc)
Delay tactics
Legal rights/entitlements (my lawyers told/Im going to take you to court)
Safety concerns
Physical barriers (broken down- phone/online mediation)
SETTLEMENT MEDIATION:
Mediator encourages parties to compromise by use of persuasion, reality
testing, pressure.
Little regard for process; Mediator encourages parties to move from fixed
positions
Mediator in control of process and settlement driven
EVALUATIVE MEDIATION:
Mediator guides & advises parties on the basis of expertise with a view to
reaching settlement which accords with legal rights & obligations, industry
norms, or other objective social standards
Highly interventional; Advice & opinion may be provided
THERAPEUTIC MEDIATION:
Parties assisted by mediator to deal therapeutically with the underlying
causes of the problem with a view to improving relationship as a basis for
resolving the dispute
Can be little regard for process
lends itself to ppl from counselling/social work/psychology background
FACILITATIVE MEDIATION:
Dispute is defined in terms of parties issues & underlying
interests/needs/concerns-substantive, procedural, psychological
Objective - to avoid parties positions & strict legal entitlements in neg
Achieve settlement outcome which satisfies both parties real issues and
needs/interests
Mediator not need to be content expert but must be process expert costs/est of costs; (b) % cost party must pay; (c) to whom/by when costs to be paid
Mediators role is to facilitate communication and negotiation
UCPRs: Mediation:
R319: Registrar to give notice of proposed reference to ADR (1) Ct may direct
registrar to give written notice to parties that dispute is to be referred to ADR process;
(2) party may object to the reference by filing objection notice; (3) Objection notice
must include: reason; be filed 7 days after receiving referral notice; If not filed, ct may
require parties/reps to attend b/f it (hearing); Ct may make orders at hearing that
consider appropriate
R320: When referral may be made: ct may refer dispute for mediation: (a) on
application by a party; (b) if proceeding is otherwise b/f ct
R321: Proceedings referred to ADR process are stayed: dispute & claims stayed
until 6 business days after the report of the ADR convenor certifying finish of ADR is
filed with registrar
R322: When party may impede ADR process- May impede is fails to (a) attend; (b)
participate; (c) pay amount required
R 323: What the referring order must contain [FORM 33] appointment of
mediator [specified or selected by parties]; information for mediator, including nature
of the dispute & costs (pleadings, any other relevant info that mediator needs); est
how long med to take; req parties if med unsuccessful after 3m of referring order, to
provide report setting out circum to registrar who may refer matter to ct
R 324: When mediation must start and finish: start asap after mediators
appointment & try to finish w/in 28 days after appointment of mediator
R 325: Parties must assist mediator: parties must act reasonably & genuinely &
help mediator to start/finish mediation within the estimated time
R 326: Role of mediator: (1) may gather info about facts; (2) decide whether party
may be represented & by whom; (3) may see the parties with/without their reps
R 328: Mediator may seek independent legal advice: can seek legal/other advice
re dispute from indep 3rd parties [extra cost: consent parties/leave]
R 329: Mediation record: unless parties agree otherwise, M must ensure agmt in
s48 CPA is: placed in sealed container; marked with ct file #; marked Not to be
opened w/out order court; filed in the ct
R 331: Mediation certificate (applies to certificate s48); CT must not contain
comment re extent to which parties participated/refused in mediation; however, can
state party did not attend
***R 332: Unsuccessful mediations: if unsuccessful, dispute may go to trial/be
heard in ordinary way w/out inference drawn against party b/c failure to settle at
mediation
NADRAC: ... A process (structure process) in which the parties to a dispute,
with the assistance of a neutral third party (the mediator), identify the disputed
issues, develop options, consider alternatives and endeavour to reach an
agreement. The mediator has no advisory or determinative role in regard to the
content of the dispute or the outcome of its resolution, but may advise on or
determine the process of mediation whereby resolution is attempted. Mediation
may be undertaken voluntarily, under a court order, or subject to an existing
contractual agreement.
CASE APPRAISAL
s41 CPA: Defines case appraisal: (1) process under the rules in which a case
appraiser provisionally decides a dispute; (2) CAs decision is not binding on the
parties until (a) the time prescribed under the rules for filing an election to go to
trial has passed [R343]; and (b) a court, by order, gives effect to that decision
R343: Dissatisfied party may elect to continue: party dissatisfied w/ CAs
decision may elect to have dispute go to trial/be heard in ordinary way by filing
election in approved form with registrar [FORM 37]; (2) Election must be within
28 days after CAs certificate is filed in the registry
Early neutral evaluation is a process in which the participants to a dispute present,
at an early stage in attempting to resolve the dispute, arguments and evidence to a
dispute resolution practitioner. That practitioner makes a determination on the key
issues in dispute, and most effective means of resolving the dispute without
determining the facts of the dispute used often in dispute to bring pressure to get
settlement; usually person making ENE is expert in that area
Expert appraisal is a process in which a dispute resolution practitioner, chosen on
the basis of their expert knowledge of the subject matter, investigates the dispute.
The appraiser then provides advice on the facts and possible and desirable
outcomes & means whereby these may be achieved.
ADVISORY ADR PROCESSES CA, early neutral evaluation & expert appraisal:
Used when an expert is required dispute may be legally complex, requires
expertise and specialist knowledge
The expert expresses an opinion on the specialist, complex or technical issues
(influence to settle)
Intention to influence parties
Bring a sense of reality
Provide an opinion on quantum and liability
Allow parties & their reps to present their cases & provide supporting
documentation
May require a number of sessions
May become binding on parties
May be ct ordered, contractually derived, or parties choice once dispute
arises
UCPRs: Case Appraisal:
R 334: Referral to CA: [FORM 33] referral order must: (a) appoint CA [specified or
selected by parties]; (b) what dispute is referred; (c) enough info about dispute &
stage of proceedings; (d) time frame; (f) if not completed in 3m, req parties provide
report setting out circum of matter to registrar who may refer matter to court; (2)(a)
would lead to reduction of costs to parties here, which in turn reduced cost to
R 335: Jurisdiction of CA: CA has power of ct to decide issues; (2) However, CA
(a) only give decision that could have been given if decided in court; (b) not punish
for contempt
R 336: Appearances: party appearing b/f CA has same rights as in ct
R 337: Information: CA may seek additional info [if extra cost: consent/leave]
R 338: Recording of proceedings: CA may have proceedings recorded if considers
appropriate
R 339: Decision: (1) must be in writing, but need NOT give reasons; (2) However,
CA may, at any stage, decline to proceed further; (3) copy must be given to each
party
R 340: Costs: CA same power to award costs as ct; (2) CA decision under R339(1)
must include decision on costs
R 341: Effect of decision: if election to made under R343 (elect to go to trial),
parties taken to have consented to CAs decision being binding & decision becomes
binding and final
R 342: Certificate: (1)(a) applies to CT in CPA s49(2)(a)&(b); (2) If CA makes
decision sealed container, marked with court file number, Not to be opened without
order of court, file container in court
R 343: Dissatisfied party: (1) dissatisfied with CAs decision, party may elect to
have dispute go to trial/be heard in ordinary way by filing election in approved form
[FORM 37] w/ registrar- (2) MUST be filed w/in 28 days after CAs CT filed; (3) If
election filed- (a) CAs decision no effect other than R344; (b) dispute must be
decided in a court as if never referred to c/a
R 344: Ct to have re to CAs decision when awarding costs: (1) if cts decision is
not more favourable overall to challenger than CAs decision, costs of the proceeding
& CA awarded against the challenger; (2) However, ct may make another order
about costs if there are special circumstances
R 345: Replacement of appraiser: ct can revoke appointment of appraiser
UCPRs Costs:
R346: Payment of ADR costs: each party severally liable for their % of costs
R347: Party may anothers ADR costs: if party does not pay their % of ADR costs,
another party may pay the amount
R348: If ADR costs paid to registrar: if amt paid for a convenors/venue fee,
registrar must pay convenor/venue provider
R350: Ct may extend period w/in which costs are to be paid/grant relief: (1)
party may apply to ct for order: (a) extending time for payment ADR costs; (b) relief
from effects of noncompliance with requirement about costs
R351: Costs of failed ADR process are costs in the dispute: unless otherwise
ordered by ct, each parties costs of/incidental to ADR process are the partys costs
in the dispute
NADRAC: process in which a dispute resolution practitioner (the case appraiser)
investigates the dispute & provides advice on possible and desirable outcomes and
the means whereby these may be achieved. (case appraiser has quite a bit of power)
Barrett v Qld Newspapers: Magistrate suing for defamation- D made applied to ct to
proceed by mediation, but Mag opposed claiming defamation is not suitable for
mediation, Ds had not accepted liability and not likely to, issues complex, mediation
would take longer than 1 day, pleadings & discovery not completed, waste money,
resource and time when little prospect of success, cannot resolve credit issues at
mediation; H: ct order mediation; cannot conclude that it will not be successful; trial
est of 10 days could be made available to others; parties prepared to engage in
mediation; 2nd D offered to pay; essence of mediation is that 3rd party may be able to
assist ppl to sort out dispute out in situations where ppl cannot sort out for
themselves- skill mediator is key; application made early; costs incurred, but more at
trial, risk in litigation
Trelour v JH Mc Donald: (PI case); barrister: mediations are among great fraud to be
perpetrated upon long suffering litigants in PI actions they propagate delay, result in
incurring of expense out of all proportion to their worth and they raise
hopes/expectation when none there to be raised; H: barrister did not place b/f ct any
evidence to support his submission - should not be able express such strong view re
ADR is concerning; BUT ct, although reluctant b/c matter simple, ordered trial:
unsuccessful settlement conference, matter ready for trial, written offers had been
served, costs to P of attending mediation similar to ct; P unwilling to attend mediation
Sing v Sing: D wanted mediation, P wanted to XA witnesses at trial, exhaust his
resources & parties too far apart; H: short time ago general accept of view that no
point mediation engaged in by reluctant party- but however, many instances in which
mediation succeeded where parties opposed; ct power to order despite opposition;
another advantage of settlement is that where bitterness b/t parties, whatever the
result of trial, always risk of appeal, prolongation conflict, uncertainty in lives of those
involved and burden of costs; reasonably priced mediators available
Facer v Workcover Queensland: D wanted matter go to M, but P wanted trial; H: use
of ADR procedures not only prescribed under UCRPs but practical way to bring
parties together with independent, experienced, legal mind to isolate the issues and
encourage and assists all parties to strive to resolve their differences in less
formal/costly environment
Skalski v Brown: client suing former lawyers claiming breach of retainer agmt & neg;
D in favour of mediation- other party: futile, cannot settle, waste resources; H: guided
by R5 and ordered mediation based on interests of justice; not persuaded that
there was little prospects of success. Mediation may not solve everything, but
may well narrow the scope of the dispute. Some of the work nec for mediation
will also be needed for trial anyway. Expense of the trial was significant in the
context of the claim. Ordered mediation
Simic v LTH Investments: application for mediation; D opposed; H: opposition view
by one person not determinativemediation integral to adjudicative process;
independent 3rd parties can bring different perspective into matter; narrow the issues
and then proceed to court if not everything resolved; interest of justice; mediation
community; costs of trial were going to be significant; although can not order parties
to participate, they can be asked participate reasonably and genuinely
Baldwin Lawyer v Simala: H: issues requiring resolution of ct- efficient resolution
possible- could be done at 1 day hearing in relatively near future particularly if written
materials prepared by way of evidence in affidavit form and written statements of
contention to define issues to be decided
Wade v Gargett: P sought order for mediation conference re dmgs for PI; D
opposed; H: not referred to mediation; partys attitude not determinative- ct power
to order without consent; No real prospect of success at this point, nor likely
resolve/narrow issues; matters not been shown to have changed since
conference; believe that R made final offer and not willing to increase; late in
proceedings, ready for trial
(1) Simple case
(2) Issues clear, no need for further particularisation, only issue quantum
dmgs
(3) Trial expected to be short
(4) Ready to proceed to trial, request for trial date delivered
(5) Costs associated with preparing for trial have already been incurred-
mediation result further costs
(6) Legal cost attending mediation similar to cost of first day of trial
(7) Nothing to suggest any delay in obtaining hearing dates in a trial
Witcombe v Jordin : P, home owners, house damaged by fire; D1 alleged to have
been negligently responsible for starting fire when housesitting; D2 is insurer of
Ps home, denying policy covers D1- must prove had physical control at time; (i)
No factual issue, but legal issue (whether in physical control)= appraisal; (ii)
Factual issue (whether guilty of neg)= mediation
INTERLOCUTORY PROCEEDINGS
DEF: Applications made during the course of the proceedings- do not finally
determine issues b/t parties but are necessary for the conduct of the proceedings
[Eg, amend pleadings, disclosure, further & better particulars, preservation prop & E]
NB: Distinguish between applications made in the proceedings that are dispositive
and those which are not eg
1. App for default/summary judgment will finally dispose of proceedings;
2. App for interim relief only, eg, preserve property or evidence
3. App for procedural orders/directions, eg, correct irregularity, add parties/CofA,
amend pleadings etc
Procedure for Starting Interlocutory Application
R 31: Application in a proceeding
Application to be signed, filed and in the approved form [FORM 9]; [FORM
46]
Respondent to be any party whose interests might be affected by the
granting of the relief sought
If made by non party must comply with R17
Filed & served on each respondent at least 2 business days before the
date set for the hearing
NB: service day & hearing day excluded in time calculation under Acts
Interpretation Act
R32: Oral Applications: (1)(a) can make oral application to ct for an order that they
may make on a written application; or (b) ct making an order sought on an oral
application; (2) If make oral application, ct may impose conditions required in
interests of justice to prevent prejudice to other parties
Default Judgments (Dispositive) R281 290
R281: Can obtain DJ if D does not file NITD by time allowed in R137 (28 days)
Must Complete: Request for judgment [FORM 25]: setting out that served D as in
affidavit, set out claim and claim for interest and any other costs entitled to claim;
WITH [FORM 26]: Draft order
R282: Service must be proved: P must prove service of a claim on D b/f judgment
may be given (R120- affidavit of personal service; or notice of address for service &
not serve personally- then set out how served in affidavit *instructions from lawyers in
writing if going to serve on them)
R283: Default judgment for a debt or liquidated demand [monies owing]: P can
file request for judgment [FORM 25] for no more than amount of claim plus interest
and certain costs; (2)(a) if interest claimed- interest, calc, to the date of judgment, at
rate specified in claim or PD for Civil Proceedings Act s58; (b) the following costs: (i)
costs for issuing claim; (ii) costs for obtaining judgment; (iii) any other fees and
payments, to extent reasonably incurred and paid [Affidavit- Proof of debt, set out
claim, interest, other costs: [FORM 26]]
R283(3): Court as constituted by Registrar gives judgment
**R 284: Default judgment for [unliquidated damages]: request for judgment filed
conditional on assessment of damages [FORM 25] [FORM 26]
Registrar can assess damages or done by court R 507
NB: eg, if unsure of dmgs from injury PI & injury not subsided, so do not know extent
of claim- can request unliquidated dmgs and ct/registrar assess
R285: Default judgment for [detention of goods]: request for judgment for return
of goods or value of goods conditional on assessment *FORMS
R286: Default judgment for [recovery of possession of land]: claim to recover
land plus costs of claim, DJ, other fees/payments *FORMS
R287: Judgment by default [mixed claims 2+ above]: P entitled to judgment on
any or all claims mentioned n R283-286 *FORMS
R289: Judgment by default [costs only]: If D satisfies Ps claim for relief, P may file
request for judgment against D for costs alone if D satisfies P claim, then P ONLY
get payment of their costs *FORMS
Claim for interest
s58 Civil Proceedings Act 2011 from cause of action to date of judgment
PD 22 of 2012: amt of interest: 10% UNLESS Kual agmt b/t parties stipulating a set
% for interest (from CofA to date of judgment)
R159: Interest: (1) If party intend apply for award of interest; (2) Rule does NOT
apply to proceeding for PI or death; (3) Party must allege in pleading particulars (a)
amount(s) on which interest claimed; (b) interest rate(s) claimed; (c) day(s) on which
interest if claimed; (d) method of calculation
R283: Can abandon the interest claim, claim an agreed rate, accept a rate not higher
than specified in the PD, or argue for a higher rate [can claim costs for issuing the
claim, obtaining judgment, any other fees/payments as long as paid and reasonably
incurred]
Setting aside a Default Judgment
R290: Setting aside judgment by default & enforcement: Ct may set aside or
amend a judgment by default, and any enforcement of it, on terms, including terms
re costs & the giving of security, the ct considers appropriate.
D MUST make application [FORM 9] and supporting affidavit(s) [FORM 46]
D must show the court: [Aboyne v Dixon (5 elements below); NAB v Singh;
National Mutual Life Association v Oasis Developments]
1. D has satisfactory explanation for delay (filing NITD)
2. No unreasonable delay in making the application DJ
3. D has a defence on the merits of the case (prima facie)
4. Whether P prejudiced in such a way that could not be comp by costs
5. Court has a discretion - may set aside
6. Do acting lawyers have knowledge that NITD/def to be filed (Gavin)
Consequences:
If court sets aside DJ - D will be required to file a defence w/in a stipulated time
NB: exhibit a draft defence to applicants affidavit
Normally D will be required to pay Ps costs of the application & obtaining
DJ: Skyshades Holding Pty Ltd v Caterer
Yankee Doodles v Blenvale: any affidavit that is filed in support of application to set
aside DJ (by D) must set out all defences on which D intends to rely and briefly set
out the facts by which the D seeks to est such defences; H: A mere stmt by D that
they have a good def is NOT enough; D must demonstrate compelling reason for
failure to appear/file NITD & that it has a plausible def
Cook v DA Manufacturing Co: court supported proposition that most cogent of things
D has to show to get DJ set aside is that it has a defence on the merits (what do in
act D, exhibit to affidavit, draft defence)
Max Christmas Real Estate v Stephen John Hockley: MC applied to have DJ set
aside re dispute over payment of commission; Ct stated things to look at: satisfactory
explanation not filing defence, delay in not making application, defence on merits;
applicant D claims that he incorrectly recalled date of service: combination work
pressure, negotiation with P solicitor and difficulties of dealing with matters long
distance all contributed to failing file defence in time; H: D was sophisticated &
responsible, had real estate and law knowledge, applicant D indicated that on date
he was making inquiries with other solicitors re costs/interests so could consider
position and inform C and SofC filed, and also seeking to make direct contact to
reach settlementD not provide compelling reason for failing to appear
Gavin Boyle Constructions v Fabrok: C & SofC send to firm of accountants by Ps
lawyers via email to D- not received; D unaware until judgment obtained; H: already
engaged in settlement negotiations and solicitors involved assume that P had
knowledge & reasonably anticipate having to file a NITD & Def- failure to enquire
whether it would be defended prior to seeking DJ led to unnecessary expense (R5)
[5th consideration: if lawyers acting/have knowledge then courts less
sympathetic to set aside default judgments]
Logan Steel v McNab Constructions : P was clearly on notice that D was going to
defend the action & also had details as to the defence. H: had D been aware of
the service of the C/SoC it would have filed a defence within time + there was not
a great deal of delay b/t DJ & application for set aside [2 months] + no prejudice
to P - they never made any demand for the payment of $ owing & didnt do so for
2 years [waited such a long time to bring original claim against D]. DJ set
aside. [applicant having default judgment set aside was ordered to pay Ds costs
b/c they created the problem by failing to file their docs in time]
Skyshades Holding v Caterer: appeal from Mag decision dismissed application to
set aside DJ; P filed C for debt & interest & costs for work done for D, but did not
est work done; Irregularities: did not prove service (DJ should have been set
aside) & proceedings did not show P suing on CofA occurred in that district-
(failed comply rules); 3 factors above; Bad practice of P solicitor: D requested
better particulars + 14 days after get particulars to provide defence- P solicitor did
not reply until after signed DJ= likely D would have filed in time had replied &
matter proceed to trial=time + expense unnecessarily incurred by failing to do so;
Good defence (did not perform the work P claiming for)- DJ set aside
Summary Judgment (Dispositive): (not make out def/not make out CofA)
NB: IA [FORM 9] and supporting affidavit [FORM 46]
R292: Summary judgment for P: P can apply for a judgment against D at any time
after D has filed a NITD
(2) if ct is satisfied that D has no real prospect of successfully defending the claim &
no need for a trial
Judgment can be given for all or part of Ps claim and may make any other orders
that are appropriate
R293: Summary judgment for D: D can apply for judgment at any time after NITD
filed for judgment against P
(2) if court satisfied P has no real prospect of succeeding on all or part of Ps claim &
no need for trial
Make any other orders that are appropriate
R294: Claims not disposed of- ct can continue to hear claims not disposed of; 2nd
or later application to be made w/ leave
Spencer v Cth of Australia: prov in Federal Court Act re applying for SJ- said: ct give
judgment against one party if first party defending proceeding satisfied that other
party has no reasonable prospect of success; owner farm commenced proceedings
against govt claiming that restrictions imposed on being able clear vegetation on land
led to acquisition of property & restriction placed by state leg; argued that acquisition
was invalid; cth govt sought dismissal of claim; HC: was prospect for success; SJ
should always be exercised with caution b/c depriving person with right to trial; *said
prov requires practical judgment by ct where applicant has more than fanciful
prospect of success (Swain case); summary processes should not stall law- case
had important questions of public and constitutional law and complex questions of
fact- dismissal set aside
Deputy Commissioner of Taxation v Salcedo: whether S had defence re payment of
tax liability as D of Co; H: SJ not obtained as matter of course; judge must determine
whether respondent established real prospect of succeeding at trial- if established,
then matter must go to trial; R5- just and expeditious at min expense TEST: is
there a real vs fanciful prospect of success?; if no real prospect successful in
all/part claim and no need for trial, then other party entitled to judgement; Benefit:
saves both parties from expense of trial b/c outcome inevitable; advantages to admin
justice, that matters that could be dealt with summarily are so dealt with
Armstrong v Glenwood Homes: applicant has to clearly demonstrated that action
must fail- so untenable that could not succeed
Bakers Creek Developments v Pacific Homes: P: developer of land, D1: builder, D2:
principle of D1 Co & trustee of PH; D1 contracted with P to purchase lots of land in
subdivision, D failed to settle on K, P sought SP and dmgs; D: not right settlement
date b/c P failed to complete connection of services that was part of oral agmt (D
asserted partly oral), P sought SJ & denied existence oral agmtsubmitted D had no
real prospect defend & bound by written terms & failed to settle on due; H: even if
oral agreements, superseded by written and no defence= SJ
Andrews v Bells Sports Australia: As bike seat broke; issue re liability for injuries; the
stem manu in US but way it come to Aus was not via US manufacturer but by Aus
retailers; in relation to US Co, court said 3rd D (US Co) was not carrying on business
in Aus & P no real prospect at trial succeed against this corporation
Dispositive judgments - summary judgment:
No arguable issues of law or fact, ie no triable issue
Cts reluctant to make orders as no testing of case in a hearing where parties
have opp to present E/prove case
SJ is final (cf: DJ which on application of D, can be set aside but note can be
set aside if order made in absence of the respondent
Application to strike out pleadings
NB: IA [FORM 9] and supporting affidavit [FORM 46]
R171: This rule applies if a pleading or part of a pleading
(a) discloses no reasonable CofA or defence; or (b) tendency to prejudice/delay the
fair trial of the proceeding; or (c) unnecessary/scandalous; (d) frivolous/vexatious; (e)
otherwise an abuse of the process
(2) Ct may strike out all/part of the pleading & order the costs of the application to be
paid by a party on the indemnity basis
(3) On the hearing of an application, ct is not limited to receiving evidence about the
pleading
Applications for procedural orders
NB: Inter parte: if make app & serve (permit other side to respond to app)
NB: Ex parte: want ct order & then serve to other side- must show good reason
(lose evidence/property)
(1) amending proceedings; (2) adding/substituting parties; (3) adding CoA (4)
disclosure; (5) further & better particulars
Default by P
If D or P does not take step in proceedings- can apply for order for dismissing
proceeding
NB: [FORM 9] and supporting affidavit [FORM 46]
R 280: Default by P: if P is required to take a step under rules/comply w/ order of the
court w/in stated time AND fail to do so; D may apply for order dismissing the
proceeding for want of prosecution.
(2) Ct may dismiss the proceeding or make another approp order
(3) Order dismissing the proceeding may be set aside only on appeal or if parties
agree to it being set aside.
(4) Despite (3), Ct may vary or set aside an order dismissing the proceeding for want
of prosecution made in the absence of the P, on terms the court considers
appropriate, and without the need for an appeal.
Amending pleadings
R375 (General power): (1) ct can allow/direct a party to amend a claim, anything
written on a claim, a pleading, an application or any other doc;
(2) Ct can give leave to make an amendment even if it would include a new CofA
after proceeding started
(3) if there is a misnomer of a party, court must allow amendment to correct it
(4) subject to R376
NB: application b/f trial date, do not need leave; If after lim period: ct decide
R376: If application made to amend under R375 after limitation period
(2) Amending the name of a party can only be done if the court considers it
appropriate & mistake being corrected is genuine & not misleading or likely to cause
reasonable doubt as to identity of the person intending to sue or be sued
(3) Amend changing capacity in which a party sues can only be done if ct
considers it appropriate & changed capacity is one which at the date the proceeding
started was one party might have sued in
(4) Adding a new cause of action only if appropriate AND new CofA arises out of
the same/sub same facts
R377: Amending originating process cannot be amended unless
(a) amendment is a technical matter w/ leave of Registrar/Ct; or
(b) originating process has not served & all sealed copies returned to ct, w/ leave of
the Registrar/Ct
NB: this rule does NOT apply to a particular or pleading contained in the originating
process
R378: Amendment before request for trial- any time b/f filing of request for trial
date, party can amend if leave of court not required
R379: Disallowance of Amendment- if a party makes an amendment without leave
b/f filing of request for trial date, another party can, within 8 days of service of the
amendment, apply to disallow all or part of it
R380: Amendment after request for trial date- need leave
R381: Failure to amend an order- if party does not make amendment in time
specified in order or if no time specified within 14 days of making the order, order of
no effect
Procedural requirements
R382: Procedure for amending: (1) all amendments must be distinguished so
they are identifiable (2) must indicate date of amendment & whether made w/
leave of Ct (3) can be made in the doc being amended (4) can be made in
separate document if inconvenient/difficult to read on the doc itself
R383: Who is required to make amendment: ct can order a party, registrar,
associate or other person to make the amendment
R384: Serving amendments: (1) must be served on all parties as soon as
practicable after being made (2) court can dispense with the need for service or
give directions about service
Consequences of making amendments
R385: Pleading to Amend- If party amends pleading, another party may plead to
the amended pleading or amend the opposite partys own pleading; (2)
Pleading/amendment must be served w/in time the opposite party then has to plead
or 8 days after served with amendment, whichever later
R386: Costs- party making amendment must pay costs thrown away as result
amendment made under R378
R387: When amendment takes effect- (1) from date of doc being amended; (2)
amendment including/sub CofA takes effect on and from date of the order giving
leave
R389A: Restricting particular applications: If more than 1 application made in a
proceeding and ct considers it to be frivolous, vexatious or abuse of process can
order party not to make another application without courts leave or not start a similar
proceeding without leave
Court can dismiss an application made without hearing the applicant
****Applications for interim relief R250 265
NB: Applications are commonly made ex parte and can seek injunctive relief
Injunctive relief can be positive or negative - will prevent a party from doing
something or will order a party to do a particular thing
Purpose of interim relief is to preserve the status quo pending a final
determination
Preserve rights and property
R250: Inspection, detention, custody or preservation: Ct has power to make
order for inspection, detention, custody or preservation IF (a) the property is the
subject of the proceeding or a question may arise in the proceeding about the
property or (b) inspection is necessary to decide an issue in the proceeding
NB: Acts Interpretation Act- Property: legal or equitable interest in real or personal
property, including money
R250(2): property does not have to be in a partys possn, custody, or power
(3) can order person to (a) enter a place/do another thing to gain access to the
property, (b) take samples, (c) make observations/take photos, (d) conduct an
experiment, (e) observe a process, (f) observe/read images or information (eg tape,
disk or film), (g) photocopy/photograph information or property
(4) can order payment of costs to person not a party but has to comply w/ order OR
order security for costs of a person/party who must comply with the order
R251: Perishable Property- court can order sale or disposal of all or part perishable
property that is the subject of the proceeding
R251: Order affecting non-party- order can be made under R250/251 binding on
someone not a party to the proceeding
R253: Service of application- (1) need to ascertain who has an interest in the
property and (2) order may not be made under R250/251 unless each party with the
interest served with the application and affidavits
R254: Orders before proceedings start- in urgent circumstances, ct may make
order under R250/251 as if proceeding has started
Interlocutory injunctions can be interim or final
Interim usually made **ex parte**, other party then served and given a right
be heard
Made when there is an urgency
R259: Order without notice: application should be served but if the ct is satisfied
there is adequate reason for doing so order can be granted without notice to other
party
R259(2): ct may, with or without conditions, grant the order for a limited period, grant
the order until trial, grant the order for a limited period restraining a person from
leaving Australia or make another order
NB: Interlocutory injunctions R256 not available in MC proceedings
Mareeva order/ Freezing order
R260A: freezing order: (1) can be made to prevent the frustration or inhibition of the
cts process to meet a danger that a judgment will be wholly or partly unsatisfied; (2)
can restrain a R from removing assets within/outside Australia, or from disposing of,
dealing with or diminishing the value of those assets
R260B: Ancillary order- (1) court can make ancillary orders as appropriate including
(2)(a) obtaining information about assets relevant to freezing order; and (b) in
deciding whether to make the order
R260C: Respondent need not be party to proceeding- for order to be made
R260D: Order against judgment debtor or prospective judgment debtor or TP-
court can make a freezing order against a judgment debtor or prospective judgment
debtor if the court is satisfied that that person may abscond or remove assets out of
Australia or dispose of assets which in turn will result in a judgment for the applicant
being wholly or partly unsatisfied
R260F: Service outside Aus of app for freezing order/ancillary order- can be
served outside Australia if assets within the jurisdiction
R260G: Costs- costs orders can be made- Court can make order as considers
appropriate
NB: ct will usually req applicant to give an undertaking as to pymt of damages
Anton Piller orders/Search orders
R261A: Search order- search order can be made in a proceeding or in anticipation
of a proceeding to secure or preserve evidence and requiring a person to enter
premises to secure the preservation of evidence which is relevant to an issue in the
proceeding or anticipated proceeding
R261B: Requirement for granting search order- court has to be satisfied that (a)
applicant has strong prima facie case, (b) potential or actual loss to applicant will be
serious if order not made and (c) there is sufficient evidence that (i) respondent
possesses important evidentiary material and (ii) real possibility that respondent will
destroy material or cause it to be unavailable
R261D: Terms of search order- Search order may direct each person named (a) to
permit the other persons named (i) to enter premises specified in the order; (ii) take
any steps that are in accordance with the terms of the order
R261E: Independent Solicitors- if court makes search order, court must appoint 1
or more independent solicitors to supervise enforcement of the order
R261F: Costs- court can make any order considers appropriate
Interlocutory injunctions freezing and search orders -
Applicant must agree to be responsible for any damage respondent might suffer as a
result of order for injunction if applicant does not succeed at trial: Air Express v Ansett
Transport Industries: Dispute over airlines; H: Must give undertaking to dmgs & be
aware that in this situation responsible for any dmgs for imposition of the injunction;
distinguish: dmgs and dmgs that flowed from litigation itself [now in rule 264] -
undertaking by someone affected by the order that they will receive payment of any
dmgs/losses that they suffer if injunction should not have been granted and they lose
at trial
R 264: Undertaking as to damages an undertaking to pay a person (whether or
not a party to the proceeding) who is affected by the order the amount they may
sustain because of the order
(1) Court must not grant order for freezing/search order without undertaking being
given unless there is a good reason not to require the undertaking
R 265: Other undertaking & security to perform undertaking- court may order
person making undertaking as to payment of damages to pay money to court or give
other security
Ct to decide whether to make order based on grounds reasonableness
NB: R 263: where application made for freezing/search order can order expedited
trial under R468
Party applying for injunctive relief must show: Castlemaine Tooheys v SA
1. There is a serious question to be tried ie if the evidence is maintained P
will succeed at trial
2. The balance of convenience what inconvenience/injury will P suffer if
injunction not granted vs inconvenience/injury d will suffer if injunction
granted
3. Award of damages is not an appropriate remedy
*****Beecham Group v Bristol Laboratories: P had patent and manu penicillin; D
started manu synthetic form; P brought claim for infringement of patent & applied for
inj to stop production in Aus [interim]; P argued: if not granted, D will build market and
be in direct competition; H: prima facie case, with sufficient evidence in support;
inconvenience/injury to P if not granted: loss of business VS inconvenience D:
prevent manu/sell [inj granted]
*******INTERLOCUTORY PROCEDURES R 444 letters:
Do not apply for IA procedure unless comply with 444 & 445 cannot make
application until sent letter to other side telling them what you want and why- must
serve & give time for response [unless cause delay, expense] We will make
application for orders if you do not comply [what want]
RE: exchange of correspondence instead of affidavit evidence
REQ B/F APPLICATION IS MADE FOR INTERLOCUTORY RELIEF
R443: Applies to applications for further and better particulars, directions, failure to
comply with rules or an order/direction
R444: Applicants letter to Respondent- b/f making an application under 443,
applicant must write to R specifying (a) complaint, (b) relevant facts, (c) relief
sought, (d) why relief (e) time for respondent to reply (at least 3 business days after
date of letter) and (f) that letter written under Ch11, Part 8, R 444
R444: Letters: (2)(b) Letter can be sent by fax; (3) Letter to be sent to everyone
required to be served/notified; (4) List everyone copy of letter sent to (5) No need to
comply with R 444(3) if it would (a) cause applicant undue delay, expense or
inconvenience or (b) undue prejudice
R445 Respondents reply:
(1) R required to write to the applicant specifying (a) reply is to applicants letter under
r445, (b) Rs response and (c) if applicable, why the applicant is not entitled to the
relief sought
(2) Letter to be sent within nominated time to applicant and (3) relevant others, (4) list
persons to whom copy sent
(5) No need to comply w/ 445(3) if it would (a) cause respondent undue delay,
expense or inconvenience or (b) undue prejudice
R447: Application to court
(1) Can only apply to ct after (a) applicant receives Rs response or (b) time for reply
passed
(2) Docs to be filed with the application letter and response (if any), other relevant
correspondence, list of affidavits
R 448: Hearing on application (court) - can hear an application that has not
complied w/ above rules IF the court directs
DISCLOSURE
Def: exchange of info & documentation b/t parties [can also involve non parties]
NB: disclosure may be subject to privilege
Purpose: (a) Parties aware of the case to meet at trial; (b) No surprises; (c) More
defining of issues; (d) Obtain info to assist case preparation
R209: APPLICATION (starting point): Disclosure applies to ALL proceedings
applies to all parties including a young person & litigation guardians (court order
under r14 to proceed by claim; *primarily relate to claims)
*R210: Nature of Disclosure: disclosure is the delivery or production of documents
that are relevant
*R211(1): Duty of disclosure: must disclose each document (a) in the possession
or under the control of the 1st party and (b) directly relevant to an allegation in
issue in the pleadings and (c) if no pleadings, directly relevant to a matter in issue
in the proceedings; (2) duty of disclosure continues UNTIL proceedings finished
NB: Acts Interpretation Act 1954, s 36 Doc: any paper other material on which
writing, marks, symbols, perforation having a meaning for person qualified to
interpret, disc, tape, other article
Party must disclose a document(s) that is directly relevant to an allegation in
issue on the pleadings (UCPR r 211)
**Robson v Reb Engineering: Demack J: directly relevant means
something which tends to prove or disprove an allegation in issue; order
sought for discovery of wage records & time sheets to ascertain em/ees who
witnessed P trip over pile of rubbish (dmgs for injury from falling over rubbish);
no evidence any doc likely prove existence of rubbish time sheet only
include when worker worked and rubbish generated
Rooskov v Laconholme: D applied for production of Ps personal diaries for
99,00,01. D also sought order for examination of them on the basis that
examining 00 diary required comparison with the 99 & 01. H: diary is clearly
a doc which should be disclosed as it is directly relevant to an issue in the
proceeding. 99 & 01 diaries NOT disclosable as they were not relevant to
what was contained in the 00 [if there was missing info then there might be
an argument for the alternative]
Possession or control
Cairns: possn refers to ownership & custody refers to the mere physical
holding of a document, regardless of ownership
Erskine v Mc Dowall Robertson DCJ control did not extend to docs where a
party could obtain copies under the FOI Act; property settlement proceedings &
trying to prove who contributed to the property- application made to Centrelink
to disclose as non-party; H: could have been done under FOI
Lonrho Ltd v Shell Petroleum: a party not having a present power over a
document is not required to take steps to obtain it
R212: Docs to which disclosure does NOT apply: (1)(a) document that a claim for
privilege is made, (b) document relevant only to credit, (c) an additional copy of a
document already disclosed
****NOTE: (2) expert statements/reports not privileged from disclosureif report from
expert and not helpful, not bury in file MUST DISCLOSE!!!
R213: Privilege claim: if (a) party claims privilege from disclosure and (b) another
party challenges the claim; (2) party making claim within 7 days of the challenge, files
and serves affidavit setting out claim and (3) is made by an individual who knows the
facts [can challenge privilege claim.
Confidentiality disclosed docs only to be used for purpose of litigation
Distillers v Times Newspapers discovered docs given to a newspaper. Ct
restrained publication abuse of process;
Home Office v Harman solicitor guilty of contempt of ct for giving discovered
documents to a journalist
Documents exempt from disclosure if subject to:
1. Legal professional privilege
2. Privilege against self incrimination
3. Public interest privilege
Legal professional privilege
Def: c/l privilege that protects comm b/t lawyers & clients made for dominant
purpose of seeking or providing legal advice and comm made for the dominant
purpose of use in, or in relation to, existing or reasonably anticipated legal
proceedings [advice and litigation]
Daniels Corporation International v ACCC; LLP is a principle of substantive
rule of law that can be invoked to prevent disclosure b/t solicitor and client; LPP
is intended to preserve confidentiality and protects from disclosure docs for
existing/anticipated litigation; ACCC demanded P and Solicitor produce docs
for inspection- claiming section of TPA exclude privilege; H: in absence of
clear words in any legislative provision the rule of law still applied
Glengallen Investments v Arthur Andersen: Legal advice from an accountant
(A) who has a law degree not subject to privilege; G involved in scheme where
going to be tax benefits to investors and ATO decided would audit this project;
G retained A to work with ATO; G claimed docs requested by ATO privileged
b/c came into existence to obtain legal advice or to give that advice; H: not
legal, but accounting advice; not accept privilege extend to all recipients that
believed that communication privileged without prejudice comm is privileged
form production where genuine attempt to settle dispute and express/implied
admission during settlement
NOTE:
Privilege extends to communications in documents, conversations and
reports between lawyer and client
At common law expert reports have attracted privilege
But R212(2) excludes statements or reports of an expert from claim for
privilege
R547-552 (PI) Ps statement of loss & dmg including expert reports and
Ds statement of expert and economic evidence no privilege
Privilege and self-incrimination
s10 EA: a party not obliged to produce a document for inspection if it would
disclose incriminatory material
Public interest privilege: Lanyon Pty Ltd v Cth court weighs competing
interests of parties against needs of the govt; sensitive cabinet minutesH: not
going to be disclosed
R214: Disclosure by delivery of list of documents and copies (process); Subject
R216 (disclosure by inspection) & 223 (ct orders relating to disclosure)
Party performs duty of disclosure by: [common way]
(a) Delivery of a list of docs [FORM 19] (with documents for which privilege is
claimed)
(b) If requested, delivering to other party, copies of docs
NB: deliver to other parties list of docs- spell out what disclosing & give appropriate
description for other party to know what docs are, relevant dates and set out who
made that document; Then if request doc, must provide
R214: Times for delivery -
(a) If order made for disclosure b/f close of pleadings, time is stated in the order
(c) If further/amended pleadings, within 28 days
**(d)If doc comes into possession/control of a party after time mentioned in subrule
(2)(a) (c) within 7 days of occasion [ongoing disclosure; if first time get doc under
control]
(3) If request made from someone for doc, within 14 days to deliver to them
R215: Requirement to produce original documents- party can require inspection
of an original document
R216: Disclosure by inspection of documents (1) if it is not possible to provide
copies of docs under r 214 (#, size, quantity, volume) (2) party must produce docs for
inspection at convenient time & place & notify other party
NB: where complex matter and boxes of document, not realistic to make description
for all so allow inspection
R217: Procedure for disclosure by producing documents (procedure)
(2)(a) Documents have to be contained together, organised & identified
(3)(a)Party to provide facilities for inspection and copying
(b) Make a person available to explain arrangement of docs & help locate and
identify documents
(c) Provide list of privileged documents
R219: Costs: A party who does not make use of opportunity to inspect under R216
may not inspect unless party tenders amount for reasonable costs of providing
another opporutinty for inspection or ct orders otherwise
Court ordered disclosure
****R223: Court orders relating to disclosure- (1) ct can order disclosure by
delivering copy or producing the doc for inspection
(2) Ct can order party to file & serve an affidavit stating that a certain doc(s) does
not/never existed or set out the circum in which a doc ceased to exist or passed out
of the possession or control of the party
(3) Ct can order delivery, production or inspection be provided or not provided, or
deferred
(4) Orders under r 223 only to be made if special circumstances and interests of
justice or duty to disclose not complied with or document(s) exists, existed or passed
out of possession of party
(5) If objection court can inspect document(s) to decide objection
Relief from Disclosure
R224: Party can be relieved from disclosure based on costs, time,
inconvenience compared with amount involved in the proceeding; relative importance
of question to which document(s) relate; probable effect on outcome of proceeding;
other relevant considerations
Consequences of Non-disclosure
*****R225: Consequences of non disclosure (1)(a) cannot tender the document,
adduce evidence of its contents without leave; (b) the party is liable for contempt; (c)
party may be order to pay the costs of the proceeding
(2) Other party can apply for (a) an order staying/dismissing all or part of proceeding;
or (b) judgment or order against party for non disclosure, or (c) an order for
disclosure
Solicitor Requirements
R226: Certificate by solicitor (1) solicitor to provide a certificate [FORM 24]
addressed to the ct & signed (a) stating he/she duty to disclose has been fully
explained to party and (b) if a corporation identifying individual to whom duty
explained; (2) Certificate to be prepared & signed at or immediately before trial
NB: I advised my client re duty to disclose & signed
***R227: Production of documents at trial
Disclosed docs must be produced at trial if (a) notice to produce given with
reasonable particularity and (b) production asked for at trial; (2) Doc tendered at trial
is admissible in evidence as relevant & being what it purports to be
NB: can produce on other party notice request production at trial [cf subpoena]
Additional considerations
R23: Public interest considerations rule of law authorising or requiring the
withholding of a matter on ground that disclosure would be injurious to public interest
not affected
***R240: (1) Service on solicitors of an order for delivery, production or inspection of
doc(s) sufficient for making application for contempt, but party can show no
knowledge or notice of the order
NOTE (3) solicitor liable to a proceeding for contempt if order for delivery,
production or inspection made & served on solicitor & fails, w/out reasonable excuse
to give notice of the order to the party
Non party disclosure:
NB: If someone else has a doc not apply to client, but to that party
R242: Notice requiring non-party to disclose: party gives notice of non party
disclosure to produce within 14 days after service of the notice doc(s) (a) directly
relevant to an allegation in issue in pleadings and (b) is in possn/control of non party
and (c) is doc non party could be required to produce at trial
R243: Form & service of notice- (a) notice to be issued in same way as a claim,
(b) state the allegation in issue in the pleadings and (c) include applicants/solicitors
certificate stating no other way to obtain doc(s).
(d) Approved form [FORM 21], and (e) to be served within 3 months of issue
R244: Others affected by notice- notice also to be served on others affected within
3 months after the issue of the notice
Brady v Woolworths: application to inspect video surveillance material-
seeks to be excused under r244; P claim comp for injuries: D video of P
moving without trouble demonstrates conduct by P inconsistent w/
disabilities she asserts; D did not want to show video in chief, so could test
P [R393(2): unless ct orders otherwise, D must give video P 7 days b/f trial
to inspect and agree to admission]; H: purpose UCPR facilitate just and
expeditious resolution real issues at min expense- better served by
disclosure here; forensic value of confront witness XA to undermine
credibility not appro
R245: Objection to disclosure- (1) person can object to production w/in 7 days
after service or with leave, at a later time
(3) (a) Objection to be written, (b) served on applicant, respondent and (d)clearly
state reasons for objection
(4) Reasons can include (a) expense and inconvenience, (b) lack of relevance, (c)
lack of particularity in describing document(s), (d) claim of privilege, (e) confidential
nature of documents, (f) effect of disclosure on a person, (g) if objector not served
with the notice
R246: Objection stays the notice- service of an objection under r 245 operates as
a stay of a notice on non-party disclosure
R247: Courts decision about objection- (1) W/in 7 days after service of notice of
objection the applicant can apply for decision by court as to objection.
(2) Court can (a) lift the stay, (b) vary the notice of non party disclosure or (c) set
aside the notice
(3) Each party to bear their own costs of the application subject to (4) court looking at
a different costs order based on (a) merits of the objection, (b) public interest in
efficient and informed conduct of litigation and (c) public interest in not discouraging
objections in good faith by non parties
R248: Production & copying of documents- doc(s) in notice to be produced for
inspection at respondents place of business or at respondents solicitor within
ordinary business hours or at another agreed place
R249: Costs of productionapplicant to pay Rs reasonable costs & expenses
SETTLEMENT
Ending proceedings before trial
Most cases settle before trial- common settlement offers
Settlement offers can be made formally or informally
Can occur as part of a process eg ADR, settlement conference, informal
negotiations, under UCPRs
Consent orders
Discontinuance
Informal offers to settle without prejudice offers:
Calderbank offers Calderbank v Calderbank: offers to settle made on a without
prejudice basis which means that they are inadmissible as evidence in subsequent
proceedings; Court cannot look at substance surrounding offer BUT will be used in
respect to costs if offer not accepted & other party does not receive a more
favourable outcome at trial [costs likely to be from date offer made until award at trial]
NB: P not accept offer & succeeds at trial, then D to pay costs- but should have
accepted & got less at trial, so pay Ds costs; up until offer, D pay, then after P]
EFFECT:
Calderbank offers made when no mechanism in rules of court for making
offers to settle
Effect court considers offer made once substantive issues determined in
relation to who will pay costs of the proceedings
STANDARD: only certain costs absolutely nec for litigation are covered [not all
solicitors work- notify client that you will have to be paid on top of award]
INDEMNITY: awarded due to Ds conduct; then P get back higher cost order [must
have good reason]
Formal offers to settle R352 365:
R352: Application (starting point)- in pt 5, offer means offer to settle and
proceeding means proceeding started by claim, or where ct made order proceeding
to continue as if started by claim; or started by originating application if order/direction
made for pleadings rule says: formal offer DO NOT APPLY to originating
applications Calderbank still applies
NB: if do not comply with rules, formal offer becomes informal
R353: If offer available- (1) party can serve offer to settle 1 or more of the claims in
the proceeding on the condition specified in the offer, (3) in writing and contain a
statement that it is under Part 5
R354: Time for making offer- (a) Claim- anytime before verdict; (b) otherwise,
anytime b/f final relief granted
Note (3) if judgment conditional on assessment of dmgs offer to settle can be
served up until damages assessed
R355:Withdrawal or end of offer- (1) offer to remain open for acceptance for at
least 14 days and cannot be withdrawn during that period (2) lapses afterwards
(2) Offer lapses at end of specified period for acceptance
(3) Court can give leave to withdraw offer but can be accepted any time
up until application decided
(4) Application for leave to withdraw can be made without notice to
another party
(6) Court cannot extend time for acceptance
R356: Effect of offer- offer made under Part 5 is an offer made w/out prejudice
R357: Disclosure of offer (1) No stmt that offer been made can be contained in a
pleading or affidavit; (2) an offer must not be filed; (3) if offer not accepted, no
communication to ct unless quantum and liability decided and only issue is costs
(5): after application for leave to withdraw offer decided, court must (a) place
application and any affidavits that contain a statement of fact that offer has been
made in sealed container; (b) mark with court file number; (c) mark Not to be opened
without an order of the court; (d) file container in court
(6): container can only be opened if court orders it to be
Acceptance of offers
R358: Accepting an offer
(1) Written notice [FORM 38]
(2) An offer does not lapse on the making of a counteroffer (does not cancel out
original offer)
(4) If offer accepted court can incorporate conditions into an order/judgment
(5) If offer accepted & includes offer to pay costs order of ct taken to have been
made in accordance with offer re costs
Note R359: Person under legal incapacity (1) may make or accept an offer under
this part; (2) acceptance of offer not binding until approved by Court ( r98) or public
trustee (s59 Public Trustee Act)
**R360: Costs if offer by plaintiff- if P makes an offer that D does not accept and P
gets a judgment no less favourable than offer made, court must order D to pay Ps
costs calculated on an indemnity basis *** unless show another order of costs
appropriate in the circumstances
***R 361 Costs if offer by defendant (1) where D makes an offer and not
accepted by P, and P obtains a judgment not more favourable to P than offer, court
must order: (a) D pay Ps costs on standard basis, up to and including day of service
of offer and (b) P pay Ds costs on standard basis after day of service of offer
(3) If Ds offer served 1st day trial/later, (a) P entitled costs on standard basis to the
opening of trial on next day; (b) D entitled costs indemnity basis after opening trial
next day
R365: Failure to comply with offer if party does not comply with accepted offer to
settle, other party may elect to:
(a) Apply for a judgment on conditions of the offer or
(b) Continue with the proceeding as if offer had not been accepted
Cost Implications:
Naomi Marble & Granite v FAI general Insurance: D applies for award of indemnity
costs; 2 grounds: (1) D had made Calderbank offers to P to settle the matter; (2)
Misconduct by P; H: interests of justice- look at facts & circum and always discretion
of court; Prima facie presumption that if offer not accepted and P not get more
favourable result at trial, then should pay costs of other party on indemnity basis from
that date of making the offer; P misconduct: held P pursuing fraudulent claims
against insurer for large sum, making false allegations of fact which P should have
known and prolonged trial, persuaded hopeless claims and concealed evidence,
knew had hopeless case *poor conduct for ct to exercise discretion
Categories for awarding indemnity basis: Naomi Marble Case
Where P proceeded against D with high handed presumption
Used the court process as an alteria motive/purpose (delay)
Where some unusual/special feature justifies the ct awarding indemnity
Allegations of fraud made where P knows false or irrelevant to issues
Where P properly advised should have known no chance of success
Brian Geaney v Close Constructions: offers made by D not offer under rules b/c time
for acceptance was less than 14 days- therefore, informal Calderbank
Westpac v Commissioner of State Revenue: Commissioner accepted liable to pay
costs of W but did not accept that should be on indemnity basis; before trial W sent 2
offers to settle, both rejected; H: commissioner entitled to want to look at detail of
evidence that W would give about structure of bank operation not unreasonable to
await production of that materialso did not have to accept first offer; but should
have accepted 2nd - genuine attempt by W to save costs= H: order for indemnity
costs- Commissioner behaved unreasonably
Holloway Nominees v George: special/unusual features to justify departure stray
from ordinary practice on standard basis; allegations of fraud known to be untrue,
misconduct causing loss of time to court, proceedings commenced for ulterior motive
and allegation made that ought not ever to have been made
Underwood v Underwood: party made application for provision from estate- number
of applicants & they rejected offers made; at time estate expended on legal costs,
there was no dispute about value of estate property & obvious costs proceed to trial
would seriously deplete benefit to other beneficiaries- reckless indifference to other;
pursued claim where unlikely to be successful, when application made, respondents
notified that seek costs on indemnity basisshe ought to contribute to respondents
cost on indemnity basis after the date of the Calderbank offer
Hughes v Grogan: D2 argued costs on indemnity basis inappropriate where
substantial change in case after offer of settlement, costs should not be ordered
on indemnity basis - Claims Ps case substantially changed after compulsory
conference [medico-legal reports obtained P] & discrepancies in Ps case
preventing D2 from making appro offer; P: D2 not concerned w/ prompt &
economical disposal litigation, unreasonable in not accepting offer, should be
punished; H: not unusual for case to change after conference/offers; none of the
further reports added new complexion to case or made any significant alteration
to either party P always argued significant injury; D2 never accepted and did
not make further offer
Elton v Bywater Medical Mgt: offer that demands no less than all the relief sought is
not an offer = genuine offer required [wanted cost of whole claim]
Velvet Glove Holdings v Mount Isa Mines : Ps claim over $3m dismissed; Before
litigation, parties compulsory dispute resolution process- next day, D made
Calderbank offer, P refused; H: amt offered close to that claimed for
reimbursement, Ps rej offer unreasonable & indemnity costs awarded to D
TEST: reasonable rejection: whether the rejection of the offer was unreasonable
in the circumstances (need no be manifestly/plainly) order; (3) required to be assessed and the costs assessor must allow all costs
FACTORS: take account all relevant considerations determine rejection
Calderbank unreasonable:
(a) stage of proceedings at which offer received
(b) time allowed for offeree to consider the offer
(c) extent of the compromise offered
(d) offerees prospects of success, assessed at the date of the offer
(e) clarity with which terms of offer expressed
(f) whether offer foreshadowed an application for indemnity costs in even
offerees rejection
DISPOSITION OF PROCEEDINGS
Discontinuance and withdrawal: R303 - 312
When P no longer wishes to proceed with claim
D will usually agree subject to an appropriate agreement to pay costs
R303: Discontinuance of party representing another person- party representing
another party in proceedings can only discontinue or withdraw with courts leave
***R304: Discontinuance by P (to originating process)- (1) P or applicant can
discontinue/withdraw all or part of proceeding before service of defence or first
affidavit; (2) leave required if after service or by consent
(3) if more than 1 P or applicant, or a CC against a P, P or applicant can only
discontinue with courts leave or by consent of the other parties
(4) P can discontinue against 1 or more Ds without discontinuing against other Ds
and same for an (5) applicant re respondent(s)
R305: Discontinuance by D of CC - D can discontinue a CC or withdraw part of it
(a) before being served with Ps answer to CC; (b) otherwise with leave or by consent
of other parties, after being served with Ps answer to CC
R306: Withdrawal of NITD- party can withdraw NITD at any time with courts leave
or by consent of other parties
R307: Costs (1) discontinuing party liable to pay costs to party & costs of other party
affected
(2) Court can make orders as to costs if discontinuance where leave needed
R308A: Discontinuance by parties when proceeding settled- must give registrar
written notice that proceeding settled
R309: Notice of discontinuance or withdrawal- (1) if no leave required notice in
the approved form and serving it as soon as practicable on the other parties; (2) If
courts leave required, notice not required- discontinuance or withdrawal if effected by
the order giving leave [FORM 27- Notice of discontinuance for Ps and Ds]
R310: Subsequent proceedings- discontinuance not a defence to another
proceeding on the same/substantially the same ground just b/c discontinue
against me, I say I am not liable in other proceedings= NO
R311: Consolidated proceedings and counterclaims- Ps discontinuance does
not prejudice C-C or consolidated proceedings made by the D can continue CC,
b/c CC claim in its own right
R312: Stay pending payment of costs- ct may order stay of the subsequent
proceeding until the costs are paid (for discontinued proceedings)
COSTS
General principles: costs follow the event ie loser pays
Rationale: if a party litigates a weak case or has a weak defence they should be
responsible for paying the costs of the proceedings
STANDARD/INDEMNITY
Standard (party/party): costs necessary to litigation
Indemnity (solicitor & own client): recover greater amount- have to show good reason
for ct to deviate from standard- party did something wrong- ran weak case, prolonged
proceedings
NB: distinction between costs or professional fees payable by a client to lawyer and
costs that court orders a party to pay
NB: distinction between costs, and fees and disbursements
GEN RULE: Parties will only be able to recover costs that are reasonable (eg, wrote
3 letters v call; get back cost 1 letter)
Party and Party costs:
Costs that court orders party to pay
A partial indemnity for costs to be paid to lawyer
Party/party costs determined by reference to court scales of costs
If party entitled to costs under 687, then costs must be assessed
May agree on costs and if so, can file consent order to that effect
Costs assessed by cost assessor MUST ASSESS on standard basis-
unless ct orders otherwise
R681: applies to costs of a proceeding & application-BUT follow the event unless the
ct orders otherwise [LOSER PAYS]
Costs can be calculated by reference to scales; Costs can be assessed
R682: can be awarded at any stage of the proceeding or after proceeding ends
Costs awards:
R687: Costs to be assessed unless ct orders otherwise- if a party is entitled to
costs, the costs are to be assessed costs [itemise everything that you expect other
party to pay]
***R702: STANDARD basis: unless rules provide or ct orders, costs assessor
assesses on standard basis
R702(2): When assessed on standard basis costs assessor must allow all costs
necessary or proper for the attainment of justice or for enforcing or defending the
rights of the party whose costs are being assessed
**R703: INDEMNITY basis: ct may order costs to be assessed on indemnity basis:
(2)(a) fraud; (b) party sues/sued is trustee; (c) application for non-compliance w/ ct
**R740: Costs order becomes a judgment of the court- after certificate of
reasonably incurred and of a reasonable amount, having regard to the (a) court
scale, (b) any costs agreement and (c) charges ordinarily payable by a client to a
solicitor for work
Lawyers entitlement to costs on the standard basis costs award:
R691: Lawyers costs lawyers entitled to charge & be allowed costs under the
scales of costs for work done in the court [if standard basis, you are allowed to
charge/recover amt set out in scales Schedules of costs set out in the schedules
1(SC), 2 (DC) and 3 (MC)
R691(5): if the nature and importance, or the difficulty or urgency, of a proceeding
and the justice of the case justify it, the ct may allow an increase of not more than
30% of the Aus lawyer's costs allowable on an assessment under the relevant scale
of costs
Assessment of costs:
Process for assessment of costs see R705 738
If costs are assessed then party entitled to costs prepares a costs stmt
All work is itemised and costed
Note inclusion of disbursements
Cost statement served on party liable to pay costs
R705: Costs statement: Party seeking costs must serve costs stmt in approved
form on the party liable to pay costs [FORM 60A] (2) must contain sufficient detail
to allow party understand costs, prepare objection & obtain advice about an offer
to settle the costs
R706: Objection to costs statement- Party on whom costs stmt served has 21
days after service to object to any item by serving a notice of objection [FORM 61]
(not paying for this; done cheaper); state reasons for objections
R707: Consent order- (Agreement)- If, b/f appointment costs assessor, parties
agree on amount of costs, parties may apply for a consent order under R666
R708: Default Assessment if no objection to costs statement: party served with
costs stmt does not serve a notice of objection (R706) and party who served costs
statement files application for cost assessment (R710), then on filing of the
application, registrar must appoint a costs assessor to assess costs
R710: Application for costs assessment process- (1) Applies to party served
costs stmt or party who received costs stmt; (2) 21 days after service of the costs
stmt, apply for costs assessment; (3) in approved form [FORM 60]
Appointment of costs assessor R712 & R713
R712: Agreed costs assessor- parties can agree on costs assessor; OR R713:
Costs assessor if no agmt: can apply to registrar for appointment CA
R714: Powers of cost assessing registrar In assessing costs, may: (a)
administer an oath/receive an affirmation; (b) examine Ws; (c) if satisfied there is or
may be a conflict of interest b/t solicitor and the partyrequire the party to be
represented by another solicitor; (d) unless the ct orders otherwiseextend or
shorten the time for taking any step in the assessment; (e) direct or require a party to
produce docs; (f) give directions about the conduct of the assessment process; (g)
anything else the court directs.
R 715 Powers of costs assessors - the ct may, by order, give a costs assessor
who is not an assessing registrar a power mentioned in R714 in relation to a costs
assessment.
**R 720 Procedure on assessment- (1) CA appointed is to determine the
procedure to be followed on the assessment; (2) must be appropriate to scope and
nature of dispute and amt dispute, consistent w/ rules natural justice and fair and
efficient
**R 721 Discretion of a costs assessor- matters costs assessor must consider:
other fees/allowances payable to solicitor or counsel; nature/importance of the
proceeding; amt and principle involved; interests parties; person, fund, estate paying
the costs; gen conduct and cost of proceeding; any other relevant circum [broad
discretionconduct/costs]
**R 722 Assessment limited to an objection- if notice of objection only relates to
particular issue/item, CA must limit assessment to the resolution of matters raised in
notice in re issue/item
R 725 Parties with same lawyer- disallowing costs where lawyer acts for more
than 1 party and does work separately that could have been done for some/all of
them together, CA may disallow costs for unnecessary work
R 726 Counsels advice and settling documents- Costs of proceeding may incl
(a) advice of counsel on pleadings, evidence, other matter; (b) counsel
drawing/settling any pleadings/docs
R 727 Evidence- costs may incl obtaining E and attendance of witnesses
***R 729 Premature brief- CA NOT allow costs for the preparation/delivery of a
brief to counsel if costs incurred prematurely
R731Refresher fees- If trial/hearing >1 day, when assessing costs on standard
basis, CA may allow fees for counsel at reasonable amt for each day/halfday after
day 1
Costs assessor decides costs of the assessment
R733: Offers to settle costs- Party liable to pay costs may serve on party entitled
to costs written offer to settle the costs
R734: Acceptance of offer to settle costs- An acceptance of an offer to settle must
be in writing
R736: Agmt as to costs- parties may agree on amt of costs and CA must, on
receipt written consent, certify the costs under R737
R737: Certificate of assessment- [FORM 62] (1) At end costs assessment, CA
must certify amt(s) payable by whom & to whom in relation to application; (2)
Certificate must be filed by CA in ct w/in 14 days after end assessment and a copy
given to each party
R738: Request for written reasons for costs decision- Within 21 days after
receive copy CA certificate, party may make written request to CA for reasons; (2)
CA must give written reasons to each party within 21 days and give ct registry copy
as well
assessment filed, registrar ct makes order
R741: Costs can be set off- if party entitled to be paid costs is also liable to pay
costs, registrar may (a) set off 1 amount against other and direct party to pay
balance; (b) decline to make order for costs until party has paid amount liable for
R742: Dissatisfied party can seek a review of CAs decision- dissatisfied party
may apply ct to review decision
*****NB: R690: The ct may order a lawyer to repay to the lawyer's client all or part of
any costs ordered to be paid by the client to another party if the party incurred the
costs because of the lawyer's delay, misconduct or negligence
Myers v Elman: costs could be awarded against solicitors as a result of courts
jurisdiction to control solicitors as officers of the court
Caboolture Park v White Industries: power to award costs in proceedings extended
to awarding costs against a solicitor; WI sought order against solicitor that they pay
all costs; should not have issued proceedings in first place, weak case, trying to delay
having to pay; upmost importance for admin of justice that legal practitioners acting in
proceedings b/f the ct: honest, candid with ct, neither obstruct process ct or abuse its
process; must act in propriety
Geraldine Investments v Williams: P made claim for payment costs on indemnity
basis arguing D had no real defence and guilty of delays, which added to costs,
served with offer to settle; H: power to award indem = discretionary= must be special
reason to depart from general principlebut D also had counter claim that he was
pursuing and related to issues arising from Ps claim- as D wanted to pursue CC, no
abuse of process
Re Fountain Selected Meats v International Produce Merchants: F added director of
Co (IPM) as respondent in proceedings; H: F must have known at some point earlier
that no possibility of success against new respondent & respondent not related to
issue of trading horse meat- still cont proceedings, cont to incur costs and cont action
against him unwarranted, which should have been discontinued; Special/unusual
feature for ct to exercise discretion: ex, where someone alleges fraud and cannot
sustain that; high handed presumption on part of party; where appears commence
where applicant properly advised, known no chance of success, continues for ulterior
motive, disregard of facts or clearly established law
Di Carlo v Dubois: Special/unusual feature for indemnity to be awarded (eg, fraud)
ct requires some evidence of unreasonable conduct by a morally or ethically
delinquent party but need not be so high as vexation
Colgate-Palmolive Company v Cussons: Confirm gen rule- party/party unless some
outstanding reason; Justice of the case- special unusual feature: allegation of fraud,
evidence of misconduct that causes loss of time ct/parties (no reasonable basis for
commencing proceedings), wilfull disregard facts or established law; undue &
imprudent rejection of offer, undue prolongation of a case by ungrounded
allegations, Question: whether facts & circumstances of the case warrant making
an order for payment on indemnity E of such facts does not oblige court to award
indemnity discretionary
Maclag v Chantay: P alleged D pleaded certain points that D had no intention to
pursue at trial and therefore should not have had all costs by P; H: took all costs into
account- b/c did not pursue at trial, no costs were incurred; late disclosuredid not
deliberately withhold- late disclosure not result in additional costs; so not going to
order that pay indem but standard
Keswick Developments v Keswick Island: Application prior for respondent to R809: Person to whom enforcement hearing summons may be directed and
perform K obligations- now looking at costs; applicant seeking cost on indemnity: service- (a) enforcement debtor; (b) officer of corp; (c) partner/person who has
5 occasions applicant solicitor request to take the action that was eventually control/mgt of pship business
ordered and no response; respondent capitulated (gave in) morning of hearing; R810: Location of enforcement hearing- held in district where enforcement debtor
respondent filed no material/explanation for delay in responding requests; waste resides; (2) if not held at place where money order made
Cts time, applicants money; Factors show some ulterior motive; Applicant gave R811: Conduct money- (1) Applies to person summoned to attend enforcement
warning that an indemnity costs order would be sought; H: applicants case well hearing in district other than that which resides/carries on business; (2) Conduct $
made- seems to be ulterior motive in refusing respond over months; some must be offered when person is served w/ summons
advantage to delay; unreasonable conduct wholly unexplained; every case to be R812: Subpoena- (1) Ct can subpoena person having relevant knowledge about
judged on its merits- here: extensive K dealings, 3 proceedings, good reason to circumstances of enforcement debtor; (2) subpoena must be served 14 days b/f date
brief counsel = ordered costs, including BNE counsel, on indemnity basis enforcement hearing
Hunter v Hunter: Application for indemnity; 277 objections, covering all costs R813: Enforcement hearing- Person to whom enforcement hearing summons must
Though not based on principles, assessor sub reduced costs; complained of attend b/f ct issuing summons: (a) give info/answer Qs; and (b) produce docs/things
solciitors performance; sought to have assessor removed; H: highly undesirable states in summons [FORM 70]
for assessor to investigate standard solicitor performance; assessor did not follow R814: Orders at enforcement hearing- At hearing, CT may: (a) order an
clear steps that he outlined in letter, but must have been clear to applicant that enforcement warrant be issued; (b) make another order re enforcement; (c) stay the
could not thought could wait until after assessment to make submissions on costs enforcement order; (d) award costs
of the assessment; nature/extent of objections- objected every item, not framed R815: Failure/refusal in relation to statement of financial position/enforcement
by reference principles/rules/some with no merit= no error in how costs of hearing- applies if (a) summons req debtor to complete/return stmt financial position;
assessment apportioned application to review assessment refused (b) Fails to do so, w/out lawful excuse; (2) Person summoned/subpoenaed to attend
Interlocutory applications: and without lawful excude: (a)(i) refuses to be sworn/affirm; (ii) refuse answer Q; (iii)
Some common orders - fails answer to ct satisfaction; (iv) fails/refuse produce doc/things in summons; **(3)
Costs in any event- does not matter who wins; if get costs in your favour in Ct treat refusal as contempt of Ct
interlocutory then yours R816: Enforcement hearing warrant- Ct may issue warrant for arrest if (a) satisfied
Costs in the cause- whoever wins will end up paying costs at interlocutory person received summons to attend enforcement hearing; (b) considers person failed
Costs thrown away- ex, if D and in default, P went to get default judgment= lost at attend w/out sufficient cause
costs, so D ordered to pay Enforcing money orders: Part 3: Enforcement warrants
No order as to costs- ct not make order at all (both parties wear own costs} 1. Seizure of property under enforcement warrant R828: real and personal;
Reserved costs- ct says wait to see what happens at trial & see who pays Ct may issue enforcement warrant authorising enforcement officer to seize and
sell in satisfaction of $ order all real estate and personal property of debtor
Selling enforcement debtors property [sell assets]
2. Debts that may be redirected under enforcement warrant R840: if owed
ENFORCING JUDGMENTS money, can get it redirected; Ct may issue enforcement warrant authorising
redirection to enforcement creditor debts payable, belonging to debtor, from TP
3. Redirection of regular deductions from any account of the enforcement
What happens when unsuccessful party does not comply w/ courts judgment? debtor with a financial institution R848(2) Cont in force until total amt
Judgments can be enforced specified in warrant paid or set aside
Types of judgments: payment of money, possession of land, delivery 4. Redirection of a portion of wages/salary: R856- get deduction ordered
of goods and mandatory or injunctive orders directly ordered from their salary
When is a judgment enforceable Depends on jurisdiction & type of judgment 5. Charging order over an legal/equitable interest in shares etc: R875 over
R799: Enforcement period- money orders are enforceable at any time w/in 6 yrs shares/assets owned; in re to property, but others can be ahead in priority
after the date order was made 6. Appointing a receiver of property: R885
NB: R796: Conditional order- if money order is conditional can only be enforced if 7. If the defendant is about to abscond, arrest: R935
condition satisfied AND ct has given leave to enforce the order 8. ****Payment of the judgment debt by instalment: R868: if owed sub sum
Money orders (may stop pay & then have to enforce again) [assets would go first b/f
R800: Stay of enforcement (money orders) all/part of the money order can be instalments]
stayed b/c of facts arising or discovered after the order was made (2) debtor
application & affidavit stating facts relied upon; (3) App + affidavit must be served
personal on enforcement creditor at least 3 business days b/f hearing the application
R801:Where to enforce money order- M/C, D/C, S/C (read) if SC made order &
monetary amt in Mag ct jurisdiction, then enforce in Mag court **look amt**
Enforcement Hearings R803 816
Salient points
Purpose is to obtain information
Can take place at end of a trial or when money order made
Ct can issue an enforcement summons hearing [FORM 71]- required to
attend to answer question re means satisfying order debt & can set out
specific things want addressed & set out docs you want produced
Enforcement debtor may be required to complete a stmt of financial position
[FORM 70]- assets/liabilities to determine how to best get payment from
debtor

Enforcement hearings salient points:
If not held at the end of the trial then should be heard in district where person
served with summons resides or if not applicable where the money order was
made
Conduct money if not in district where person resides (get to hearing)
Subpoena can be issued to person w/knowledge of enforcement debtor to
attend
Failure to attend the hearing may mean a warrant for arrest
R803: Purpose of enforcement hearing- to obtain information
R804: When an enforcement hearing may take place- can end of trial or when
money order is made
R805: Application for end of trial enforcement hearing- any time after filing
request for trial date & before trial party may apply for enforcement hearing to take
place immediately after judgment; (3) party may also apply during a trial fro end of
trial enforcement hearing
R806: Outcome of application for end of trial enforcement hearing- ct can grant
application if considers it approp; (2) ct must issue enforcement hearing summons in
approved form [FORM 70]
R807: Statement of financial position- any time after money order made,
enforcement creditor by written notice may require debtor to complete/return stmt of
financial position in approved form (3) within 14 days of receipt of statement [NB:
R815: failure to complete may be contempt of ct] [FORM 71]
R808: Enforcement hearing after money order is made- enforcement creditor
may apply to ct for enforcement hearing; (2) ONLY after (a) money order made, (b)
under R807 required statement of financial position to be completed by debtor; (c) (i)
statement returned OR (ii) time for return expired