Introduction to Civil Procedure

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Procedural law is the laws of the court and how to bring about a claim, as opposed to substantive law, which includes actual rights, duties, powers and liabilities.

  • Regulating abuse of process:
    • Superior courts have an inherent jurisdiction to regulate their processes and prevent an abuse of process: Jago v District Court of New South Wales.
    • Lower courts have a limited jurisdiction - arises expressly under statute, but also have implied power to do everything necessary for regulating itself: Grassby v R.
      • 'Necessary' is defined as 'reasonably required' and not 'essential': Pelechowski v Registrar.
  • Overriding purpose - the ‘just, quick and cheap resolution of the real issues in the proceedings’: s 56 (1) CPA.
    • All procedural law keeps this mind by the court (s 56 (2)), parties (s 56 (3)) and practitioners (s 46 (4)). Costs orders may apply for non-compliance (s 56 (5)).
  • Open Justice - justice is performed in the open where people can witness it. However, the court can 'close' justice under special circumstances: s 71 & Hogan v Hinch.
    • When ' really necessary ' (ie, exceptional circumstances), and not merely where 'useful' or 'desirable':John Fairfax Group Pty Ltd v Local Court of NSW.
  • Principle of fair trial: re-trial if “some substantial wrong or miscarriage”: r 51.53 UCPR.
    • An appellant needs to show was that the denial of natural justice deprived the possibility of a successful outcome. To negate, necessary to show that a properly conducted trial could not have possible produced a different result: Stead v State Government Insurance Commission

This topic is within Resolving Civil Disputes.


Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [1.20]-[1.180], [1.300]-[1.470], [1.500]-[1.510].


[1] Procedural law is “rules which are directed to governing or regulating the mode or conduct of court proceedings”.[2] In other words, procedural law is the laws of the court and how to bring about a claim, as opposed to substantive law, which includes actual rights, duties, powers and liabilities. For example:

Procedural law is put in place to facilitate dispute resolution: main consideration include to ensure the course of justice, access to justice and due process. Other considerations include providing procedural protections to weak parties. Procedural laws are discussed in Judging Civil Justice by Dame Hazel Genn:

  • Jeremy Bentham (British Philosopher) saw the power of procedure was in the link between evidence and correct decisions (rectitude) and the role of procedure in achieving accuracy in decision making continues to be seen as central today by procedural scholars.
  • Critical elements that contribute to perceptions of fairness are the opportunity to be heard, the opportunity to influence the decision maker, even handedness of the decision maker and being treated with courtesy and respect.

Source of Procedural Law

[3] The two main sources of procedural law are the Civil Procedure Act 2005 (NSW) ('the CPA') and the Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR'). Both the CPA and the UCPR apply in the Supreme, District and Local Courts (they also apply in the Land and Environment Court and the Dust and Diseases Tribunal). Non-disclosure of documents and client legal privilege are often found in the Evidence Act 1995 (NSW). Also:

  • Relevant acts of a court (Supreme Court Act, District Court Act, Local Court Act)
  • Practice notes.
  • Court rules.
  • Etc.

Inherent and Implied Jurisdiction

[4] Superior courts of record (such as the Supreme Court) have an inherent jurisdiction to regulate their processes and prevent an abuse of process.[5] The District Court and Local Court have a limited jurisdiction which arises expressly under statute or is derived by implication from statutory provisions conferring particular jurisdiction.[6]

  • If a court is conferred power by a statute (like the Local and District Courts are), "there is an implied power to do that which is required for the effective exercise of its jurisdiction".[7]

The limited jurisdiction of the lower courts was discussed in Grassby v R:[8]

  • A magistrate’s court is an inferior court…it is unable to draw upon the well undefined powers which is available to the Supreme Court.
  • However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carriers with it everything necessary for its exercise.

And also in Pelechowski v Registrar:[9]

  • Facts: in a dispute regarding a loan agreement and land, an order restraining any dealing with the land was given against the respondents (only one of them was present when it was given). The other respondent violated the order and was held in contempt. He is now appealing that decision on the basis that the District Court had no inherent jurisdiction to make that order.
  • Held: 'Necessary' from Grassby is read not as 'essential' but as 'reasonably required'. However, the order in this case was beyond that broader meaning as well - it operated in the nature of an additional security which was not restricted by any undertakings by the appellant or anything. Thus, it was beyond the limited jurisdiction and is removed.

Guiding Principles for Procedure

[10] The guiding principle for procedure is set out in the CPA s 56, where the ' overriding purpose ' is stated to be the ‘just, quick and cheap resolution of the real issues in the proceedings’.

  • s 56 (2) requires the court to give effect to the overriding purpose when it exercises any power.
  • s 56 (3) requires parties to act in accordance with the overriding purpose and comply with procedures.
  • s 56 (4) states that a practitioner cannot act in a way such as to breach subsection 3. If they do, both the client and lawyer can be punished by costs orders (subsection 5).
  • s 57 - details the objects of case management - just determination, efficient disposal of business, efficient use of resources, timely disposal and at an affordable cost.
  • ss 58-60 deal with the individual elements of the overriding purpose:
    • s 58 - follow dictates of justice (Just).
    • s 59 - elimination of delay (Quick).
    • s 60 - proportionality of costs (Cheap).

USG notes: these concepts are pretty straightforward, and most of them are tied together. The idea is to avoid complicated (and therefore long and costly) trials.

Adversarial System of Civil Litigation

[11] The main features of civil litigation in the relevant systems are:

Adversarial System Inquisitorial System
A party controlled dispute (that is the parties define the dispute and present evidence and argument) The judge’s role is both pro-active and inquisitive
The use of precedent, procedural rules and laws of evidence The main sources of law are codes with commentary from legal scholars
A reactive, impartial judge who acts as an umpire There are minimal rules of courtroom practice
A reliance on oral testimony which is adduced from witnesses and is subject to cross examination. In addition, advocates use oral argument in the presentation of their case The emphasis is on documentary proof and not on cross-examination
The trial is the climatic end of the litigation process (and is distinct from the pre-trial stages of proceedings) and There is no rigid separation between trial and pre-trial phases
The use of the trial transcript for an appeal There is no use of transcript to record court proceedings

The main criticisms against the adversarial system of litigation that it prevents access to justice because of high costs and that it produces unjust unequal or inaccurate results. The Victorian Law Reform Commission noted the following:[12]

  • Funding is critical in the operation of the system - it will influence the level of judicial resources and quality of judicial and other court personnel.
  • Court adjudication is effective if it determines claims with reasonable accuracy, within a reasonable time and with proportionate investment of litigant and public resources.
  • Court adjudication is efficient if public and litigant resources are employed to maximise the effectiveness and are not wasted unnecessarily.
  • Lastly, court adjudication is fair if the system ensures that its resources and facilitates are justly distributed between all litigants seeking court help and between present and future litigants

'Cards on the Table' Approach

[13] The traditional approach to litgiation has been compared to a card game in which the opponent’s never see some of each other’s cards until the last moment. This has been criticised as out of date,[14] with calls for a more open ('cards on the table') approach to litigation.

This was discussed in Baulderston Hornibrook Engineering v Gordion Runoff:[15]

  • “It is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during the trial”

The Principle of Open Justice

[16] The principle of open justice is the idea that justice is conducted out in the open where anyone from the public can see it being done (ie, the public are allowed to go in and witness trials, all witnesses have to give evidence in person etc). The importance of the principle has been repeatedly stressed:

  • "The principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public… is an essential quality of an Australian court of justice".[17]
  • "Publicity of proceedings is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. As Lord Hewart put it in R v Sussex Justices; Ex parte McCarthy,[18] ‘Justice must not only be done but be sent o be done’".[19]

However, there are certain circumstances in which the court can depart from the principle of open justice - eg, to protect the identity of an informer or victims of blackmail, or in matters of national security. This can be done, for example, through closing the courts to the public, letting witnesses give evidence through video means, or giving witnesses pseudonyms to protect their identity.

Common Law Power to Depart from Open Justice

[20] An inherent power of a superior court and in statutory courts to make orders that depart from the principle of open justice can be implied as necessary for the proper function of the court.[21]

  • The power arises in only when ' really necessary ' (ie, exceptional circumstances), and not merely where 'useful' or 'desirable',[22] or to save embarrassment, distress or financial loss.[23]

This power was discussed in Hogan v Hinch:[24]

  • Facts: Hinch was charged with contravening suppression orders made under s 42 of the Serious Sex Offenders Monitoring Act. He argued that s 42 was invalid because the power conferred to make suppression orders diminished the “institutional integrity” of the courts and that the prohibition under s 42 was in contravention with ch III of the Constitution that all courts must be open to the public.
  • Held:: Despite the significance of open justice principle, it may be limited where it is necessary to secure the administration of justice. Accordingly, conduct which deliberately frustrates orders limiting open justice will constitute contempt.

Provision of Reasons for Decision

Another aspect of the open justice principle is the provision of reasons for a court decision. This was discussed in Wainohu v New South Wales:[25]

  • Facts: the Crimes (Criminal Organisations Control) Act allowed judges to declare certain organisations as bikie gangs without providing reasons. The preisdent of one of the bikie gangs sought a declaration that the act was invalid because it is against open justice and the system as a whole.
  • Held: the Act was indeed invalid. “A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion”.

Principle of a Fair Trial

[26] Whilst usually the principle of a fair trial is thought of in terms of criminal proceedings, it also applies in civil proceedings. It manifests itself in the form of the obligation to provide proper notice.[27]

This was discussed in “The Truth can Cost too Much: The Principle of a Fair Trial":[28]

  • “In Australian jurisprudence, the principle of a fair trial is based on the inherent power of a court to control its own processes and, particularly, on its power to prevent abuse of its processes.”
  • “The court cannot turn a blind eye to vexatious and oppressive conduct that has occurred in relation to the proceedings even if a fair trial is still possible. Such conduct could, if tolerated by the courts, undermine the standing of the judges as impartial and independent adjudicators.”
  • “Courts have an overriding duty to maintain public confidence in the administration of justice.”
  • “Certain principles of fair trial will be found to have a measure of constitutional protection.”
  • “The obligation to obey the rules of natural justice… applies with particular force to judicial proceedings.”

This was discussed in Stead v State Government Insurance Commission:[29]

  • Facts: the trial judge told the plaintiff's counsel not to address one opposing witness' evidence, so he didn't. However, the trial judge then based his decision on this unaddressed testimony to find in favour of the defendant. The Plaintiff claimed that there was a miscarriage of justice since he wasn't allowed to argue his case properly (by addressing that witness' evidence).
  • Held: for a re-trial, an appellant needs to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility,, it's necessary to show that a properly conducted trial could not have possible produced a different result.
    • In this case, there was certainly a possibility of a successful outcome if natural justice (letting the plaintiff address a key witness) was not denied. A re-trial is ordered.

And also in Mastronardi v NSW:[30]

  • Facts: Mastonardi was a prisoner who was assaulted by fellow prisoners. He brought proceedings in negligence against the NSW because prison officers failed to provide protection against a threat of a physical attack. The claim was rejected and Mastonardi alleged a miscarriage of justice.
  • Held: a court can order a new trial if it appears to the court that “some substantial wrong or miscarriage” has been occasioned (UCPR r 51.53). In this case, the plaintiff did not have a fair trail since part of the evidence was misapprehended and part was not relied upon.

The Crown as a Model Litigant

[31] Lawyers acting for the government are required to ensure their client acts as a model litigant. A model litigant is required to act with complete propriety, fairly and in accordance with the highest professional standards. It also entails that the Crown should not try any exploitations of the system or any underhand tactics.

This was discussed in the NSW Model Litigant Policy for Civil Litigation:

  • Promptness, no necessary delay
  • Paying legitimate claims without litigation
  • Acting consistently
  • Avoid litigation where possible
  • Keeping costs to a minimum by:
    • Not requiring the other party to prove a matter which it knows true
    • Not contesting liability if the State knows the issue lies in quantum
    • Not taking advantage of a claimant who lacks resources
    • Not relying on technical defences
    • Not undertaking and pursuing appeals unless it is justified in the public interest
    • Apologising where the state or an agency is aware that it or its lawyers have acted improperly or wrongfully

The Right to a Fair Trial Recognised in Human Rights Legislation

[32] Australia does not have national human rights legislation and this could be isolating it from the jurisprudence that is rapidly developing in other common law countries such as England.

Fair trials are discussed in the International Covenant on Civil and Political Rights s 14 (1), Human Rights Act 2004 (ACT) s 21 (1), and the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24 (1).


This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.


BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 1-2.
  2. McKain v RW Miller & Co (SA) Pty Ltd (1991) at 26-27.
  3. BKL, p. 3-4.
  4. BKL, p. 4-6.
  5. Jago v District Court of New South Wales (1989) 1268 CLR 23.
  6. Grassby v R (1989) 168 CLR 1.
  7. TKWJ v The Queen (2002) 212 CLR 124.
  8. (1989) 168 CLR 1.
  9. (1999) 198 CLR 435.
  10. BKL, p. 8.
  11. BKL, p. 9-14.
  12. Victorian Law Reform Commission, Civil Justice Review: Report 14 (2008).
  13. BKL p. 14.
  14. Nowlan v Marson Transport (2001) 52 NSWLR 116 (Heydon JA).
  15. [2008] NSWCA 243.
  16. BKL, p. 15-17.
  17. John Fairfax Publications Pty Ltd v District Court of NSW (2004) y1 NSWLR 344 (Spigelman CJ).
  18. [1924] 1 KB 256.
  19. R v Richards & Bikerk (1999) 107 A Crim R 318 (Spigelman CJ).
  20. BKL, p. 16-7.
  21. John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131.
  22. John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131.
  23. Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342.
  24. (2011) 275 ALR 408.
  25. (2011) 243 CLR 181.
  26. BKL, p. 47.
  27. Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279.
  28. Spigelman, “The Truth can Cost too Much: The Principle of a Fair Trial" (2004) 78 ALJ 29.
  29. [1986] HCA 54.
  30. [2007] NSWCA 54.
  31. BKL, p. 54.
  32. BKL, p. 56-8.
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