Resolving Civil Disputes (Outline)

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Intro to Civil Procedure

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.
    • 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.

Case Management

Case management is the idea that judges manage cases in order to increase efficiency and give effect to the overriding purpose. The judges have the power to give directions to fulfill this duty:

  • CPA Division 2 of Part 6:
    • s 61 directions as to practice and procedure generally. Subsection 1 states the court may give orders as it thinks fit for the speedy determination of the real issues.
    • s 62 directions as to conduct of hearing.
    • s 63 directions with respect to procedural irregularities. Failure to comply does not invalidate the proceedings, subject to subsection 3 where the court has power to set aside proceedings.
  • UCPR Part 2:
    • r 2.1 - the court may give directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings .
    • r 2.3 - directions and orders may relate to and of the listed court processes for the purposes of case management.
  • Application:
    • Courts balance the dictates of justice (allowing parties to make amendments etc) against the need to keep proportionate costs and eliminating delay.
    • Court is required to give weight to all three considerations: Dennis v Australian Broadcasting Corp.
    • The powers of the court to issue directions and so on under the CPA and the UCPR mean that the process of justice is overlaid with the consideration of delay and costs: Aon Risk Services Australia v ANU
    • There is no right to an indulgence (eg, amendments of pleadings or adjournments), costs order not always sufficient to compensate injustice: Aon Risk Services Australia v ANU

Costs and Security for Costs

Legal costs should be be proportionate to the complexity proceedings. Courts have unlimited power to determine costs in a proceeding: s 98.

  • Costs may be imposed on a practitioner for causing non-compliance with the overriding purpose (s 56 (4) CPA) or for litigating without prospect of success (s 347 Legal Profession Act)
    • However, costs are not imposed on practitioners lightly: Treadwell v Hickey.
  • Costs can be used as encouragement to make a party comply with procedural laws: r 42.10 ; Dr Bronte Douglass v Lawton (No 2).
  • Costs follow the event - party who loses the case usually pays 'party-party costs' (the legal costs of the other party), although court has discretion to decide differently: 42.1.
    • Party-Party costs usually paid on an ordinary basis (partial, not full): r 42.2; Baulderstone Hornibrook Engineering v Gordian Runoff.
    • Can be awarded on indemnity basis (full as long as not unreasonable) if there court decides that there was some delinquency on behalf of the losing party (usually because of unreasonable refusal of settlement offer): r 42.5; Baulderstone Hornibrook Engineering v Gordian Runoff.
  • Security for costs - court has the power to order a party to give security for costs: Kieren Leslie Welzel v Stephen Paul Francis; rr 2.1 & 42.21 (only certain circumstances) . Test for security of costs as follows: Fire Containment v Peter Robins.
    1. Is there reason to believe the plaintiff will be unable to meet a costs order?
      • There is no need to establish that the plaintiff will actually be unable to meet the order - only to establish that there is reason to believe to believe he wont. Not a demanding test.
      • Mere impecunosity in case of a natural person not enough: Lucas v Yorke.
    2. Should the discretion be exercised?
      • Relevant factors include promptness in bringing the application, whether the case is a bona fide or a sham, whether the request is oppressive, whether the plaintiff has backers who will pay the costs order, the public interest and other factors.

Limitation Periods and Interim Preservation Orders

Limitation periods are time during which a plaintiff is allowed to bring a claim - when they expire, they are barred from bringing a claim. Limitation periods are substantive law and not merely procedural: John Pfeiffer v Rogerson.

Interim preservation orders are interlocutory orders which restrict one's dealings with its property. The main ones dealt with here are:

  • Interim injunction
    • Supreme Court can issue whenever just or convenient by virtue of its inherent jurisdiction and s 66 (4) of the Supreme Court Act 1970.
    • Federal Court has power under: Federal Court of Australia 1976 (Cth), s 23.
    • District Court has limited power to grant temporary injunctions for a period not exceeding 14 days or exceeding that period if necessary to enable Supreme Court proceedings to be commenced or heard: District Court Act 1973, (NSW) s 14.
      • Applicant must show that there is a “prima facie” case and that the “balance of convenience” favours the order being made. Usually continue for a short period of time (measured in days).
  • Freezing orders (Mareva injunction) - restricts disposal of assets when there is a danger that the party will abscond/not be able to pay: 25.11, r 25.14.
    • Delivery of assets as security goes well beyond a freezing order: Jackson v Sterling Industries
    • Can be ordered against third parties if (:Cardile v LED Builders):
      1. That party holds power of disposition over assets of potential judgment debtor, or
      2. When some process enforceable by courts may be available to judgment creditor pursuant to which third party may be obliged to contribute funds to help satisfy judgment debt (for example, a guarantor).
  • Search orders (Anton Piller Orders) - seizure of documents and other evidence obtained on an ex parte basis: r 25.19 UCPR. Test for search orders is (:r 25.20 UCPR):
    1. That an applicant seeking the order has a strong prima facie case on an accrued cause of action; and
    2. The potential or actual loss or damage to the applicant will be serious if the search order is not made; and
    3. There is sufficient evidence in relation to the respondent that:
      1. The respondent possesses important evidentiary material, and
      2. There is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.

Preliminary Discovery

Preliminary discovery is a form of discovery applied for before the proceedings even start. A party may apply for preliminary discovery for one of the following purposes:

  • Ascertaining the identity or whereabouts of the prospective defendant: r 5.2.
    • The order can be made when (both must be satisfied):
      1. The applicant has been unable to ascertain the identity/location of the prospective defendant concerned despite making reasonable enquiries;
        • The availability of alternative method which has not been tried does not automatically mean that the applicant failed to make reasonable enquiries - the other methods might be, in the circumstances, unreasonable due to cost, delay or uncertainty: Roads & Traffic Authority vs Australian National Car Parks.
      2. The person whom the order is to be made against may have information relating to the identity/whereabouts of the prospective defendant.
    • The order can require documents to be produced and/or a person to be orally examined in court.
  • Seeing whether or not to commence an action: r 5.3.
    • The order can be made when (all three must be satisfied):
      1. The applicant may be entitled to make a claim;
        • Only requires to show that there is reasonable cause to believe that there is a cause of action against the prospective defendant: Panasonic Australia v Ngage.
      2. Has been unable to ascertain sufficient information whether to commence proceedings despite making reasonable enquiries;
      3. The prospective defendant may have information which can assists in this decision, and the inspection of the evidence may assist the applicant in the decision.
    • The order can require only documents to be produced.

The making of an order is ultimately at the discretion of the judge. In a scenario where a defendant does not appear or provide any evidence to contest the order, the court should not refuse to exercise its discretion: Panasonic Australia v Ngage.

Court-annexed Mediation

Court-annexed mediation is mediation that is forced upon the parties by orders of the court. The discretion to refer (unwilling) parties to mediation arises under s 26 of the CPA.

  • The discretion is very wide, the only bar being if the court believes mediation would be pointless: Higgins v Higgins. Mediation is appropriate:
    • When litigation is complex and protracted.
    • When the court thinks that the parties' approach to the proceedings is being unduly influenced by subjective considerations and might benefit from a skilled conciliator.
  • Parties must participate in mediation in good faith: s 27.
  • The court can give effect to any agreement made during mediation proceedings: s 29.
  • Statements made during mediation are protected (can't give rise to defamation): s 30.
  • Mediator cannot disclose any of the information obtained in the mediation unless in one of the cases mentioned in the CPA: s 31.
  • A mediator has the same protection and immunity as a judicial officer: s 33.

ADR clauses in contracts are enforceable by courts: United Group Rail Services v Rail Corporation NSW.

Offers of Compromise and Calderbank Letters

Settlement offers take the form of either Calderbank letters or Offers of compromise under the UCPR.

  • Offers of compromise under the UCPR
    • To qualify as offer of compromise under the UCPR, offer must:
      • Explicitly state that they comply with the UCPR: r 20.26 (3).
      • Be exclusive of costs: r 20.26 (2).
      • Cannot be withdrawn before the time specified: r 20.26 (11).
    • Result: unless in the case of "exceptional circumstances" (r 42.14), if a plaintiff offers a compromise which is rejected and then is awarded a higher amount than he offered by the court, he will receive costs on an indemnity basis from the day of the offer.
      • Offeree has the onus of proving exceptional circumstances.
  • Calderbank letters:
    • Rejected Calderbank letters do not necessarily result in indemnity costs orders - indemnity costs will be awarded only if (:SMEC v Campbelltown City Council):
      1. The offer contained a genuine compromise.
        • 'Walk away' or 'trivial' offers are usually not considered genuine Offers: Kain v Mobbs'; Miwa v Siantan Properties.
        • A waiver of interest can constitute a compromise: Manly Council v Byrne (No 2).
      2. The rejection was so unreasonable to the degree that it "warrants departure from the ordinary rule as to costs". In determining this, relevant considerations include (:Miwa v Siantan Properties):
        • Promptness of the application.
        • Whether there was sufficient time to consider?
        • The extent to which the compromise was fair.
        • Whether there was adequate information given to consider the offer?
        • At what stage was the offer made? Have there been any developments since the offer was made?
        • What were the prospects of success?
        • Whether any conditions were attached to the offer and whether they were unreasonable?
    • Failed Offers of Compromise will still serve as Calderbank letters: Kain v Mobbs.

Client Legal Privilege

Client legal privilege prevents certain communications from being produced even under orders such as discovery or subpoenas. The doctrine is substantive law and even a common law immunity.

  • To be protected by privilege, a party must establish:
    1. A professional relationship between a lawyer and client;
    2. Confidential communications (oral or documents );
      • 'Confidential' refers to communications which were made under express or implied obligation not to disclose its contents: s 117 of the CPA.
    3. Created for the dominant purpose of legal advice (s 118) or litigation (s 119).
      • Dominant purpose test: (Esso Australia Resources v Commissioner of Taxation):
        • Determined objectively: Esso Australia Resources v Commissioner of Taxation.
        • Determined according to intention of person who commissioned it, not author: Mitsubishi Electric v Victorian Workcover Authority.
        • Copy of a non-privileged document can still be privileged if the copy itself was made for the dominant purpose of legal advice or litigation :Commissioner Australian Federal Police v Propend Finance.
      • Privilege applies to third-parties only if made for purpose of litigation (not legal advice): Mitsubishi Electric v Victorian Workcover Authority.
  • Loss of privilege:
    • Where the privilege prevents the enforcement of a court order: s 121.
    • Where there has been a waiver of the privilege. A waiver can be express or implied, or even deduced when a client acts in a way which is inconsistent with the maintenance of the privilege: s 122.
      • There will not be a waiver if the disclosure of communication was done confidentially, was due to duress, or was compelled by court: s 122 (5) (confidential disclosure: Mann v Carnell; duress/compelled: Waugh v Merrill Lynch).
      • A disclosure of the ' substance ' of communications will constitute a waiver of the privilege as to the entire communication: s 122 (3).
        • Requires an evaluation - provision of reasoning as well as conclusion constitutes 'substance': Fenwick v Wambo Coal (No 2).
    • When there are joint civil defendants: s 124.
    • When a communication was made "in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty" or the communication was one that the lawyer/client knew/ought to have known was made "in furtherance of a deliberate abuse of a power": s 125.
    • When a communication "is reasonably necessary to enable a proper understanding of the communication" that has lost privilege under one of the above laws: s 126.

Causes of Action

The broad principle of res judicata (claim preclusion) means that previous matters already decided cannot be brought up again. It is operated through various forms of estoppel:

  • Cause of action estoppel - a cause of action which has been decided in a judgment cannot be brought up again as long as that judgment stands. It has merged with the rest of the judgment and lost it independence: Chamberlain v Deputy Commissioner of Taxation.
  • Issue estoppel - a legal issue which was determined during a judgment cannot be brought up again either . It has merged with the rest of the judgment and lost it independence: Blair v Curran.
    • Applies to legal issues, not facts.
    • Does not apply in criminal law.
    • Only applies after a final decision by a court with jurisdiction which made a decision on the merits of the case (ie, not one which was dealt with by a summary disposal procedure).
  • Anshun estoppel - prevents a party from bringing claims which should have been pursued in former proceedings. Applies only if (:Port of Melbourne Authority v Anshun Pty Ltd):
    1. Allowing the new proceedings would result in an inconsistency with the old ruling; or
    2. Claim was so relevant that not including it in the earlier proceeding was unreasonable.
      • This ground alone is relevant but not conclusive if parties aren't the same in new proceedings: Redowood v Link Market Services.

Settlement Negotiations Privilege

Settlement negotiations privilege means that communications made for the purpose of reaching a settlement cannot be admitted as evidence:s 131 of the Evidence Act 1995 (NSW).

  • The question is whether the communication was ancillary enough to the settlement negotiations that it was protected: Field v Commissioner for Railways
  • Exceptions detailed in s 131.
  • Privilege may be waived by agreement of the parties.
  • No judicial discretion to determine whether privilege attaches to documents.
  • Communications during court-annexed mediation given an extra protection: s 30 of the CPA:
    • Only for court-annexed mediation: Azzi & Ors v Volvo Car Australia.
    • Exception: for purposes of enforcing mediation agreements: s 29 (2).
    • Exceptions under s 131 of the Evidence Act do not remove bars set by the CPA for mediation: Azzi & Ors v Volvo Car Australia.


Pleadings are formal claims, defences and replies stated in documents in a trial scenario.

  • The first pleadings is the originating process which starts a dispute: r 6.2 UCPR. It takes two forms:
    1. Statement of claim - used for disputed contentions of fact (starts a trial).
    2. Summons - used for questions of law only (starts a summary procedure).
  • The defendant must enter an appearance or risk a default judgment.
    • An appearance usually takes the form of a defence: r 6.9.
    • Alternatively, the defendant can object to the jurisdiction, originating process or service of the originating process through a notice: r 12.11.
  • Pleadings can be withdrawn: r 12.6 (2)
    • Should only be granted when there was an actual mistake: Group (Australia) v Karabassis.
  • Relief is restricted to those claimed in the pleadings: Banque Commerciale SA v Akhil Holdings Ltd.
    • Trial by ambush (alleging things not in the pleadings) is not allowed r 14.14.
    • However, plaintiff cannot circumvent a certain explanation by simply not addressing it in the pleadings: will still need to disprove things: Kasupene v Ajax Foundry.
    • Plaintiff is allowed to attack the defence in cross-examination with claims which were not in its statement of claim: ASIC v Rich.
  • Pleadings must contain all material facts: Charlie Carter Pty Ltd v Allied Employee’s Association (WA).
    • Material facts to be verified by an affidavit: r.14.23.
  • No evidence in pleadings: r 14.7.
  • Particulars to be provided (especially in breach of fraud, misrepresentation, trust, wilful default, undue influence, negligence and breach of a statutory duty): r 15.1.
    • The court may make an order for particulars: r 15.10.
    • Where there has been no departure during the trial from the pleaded cause of action, a conflict between evidence and the particulars previously given will not disentitle a party to a verdict based upon the evidence: Dare v Pulhamwhere.
  • Pleadings can be struck out if they (:r 14.28)
    1. Do not disclose a reasonable cause of action/defence.
    2. Have tendency to cause prejudice, embarrassment or delay.
      • A pleading is 'embarrassing' where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Priest v NSW.
    3. Are an otherwise abuse of process.


An order for discovery means that one (or multiple) parties have to make all documents of a certain class available to the other parties for inspection: r 21.2.

  • All documents within the class specified by the court must be made discoverable, regardless of whether the party considers them relevant: Priest v NSW
    • Class of documents should not be too general (otherwise the order is oppressive): r 21.2 (2).
  • No discovery for personal injury unless there are special reasons: r 21.8.
    • “Special reasons” in this context: unusual or different to take the matter the subject of the discretion out of the ordinary course: Priest v NSW.
  • Discovery should only be made after the parties served their evidence, unless there are exceptional circumstances: Practice Note No. SC Eq 11

Implied Undertaking

The doctrine of implied undertaking prevents parties received documents under court entitlements (such as discovery or subpoenas from using them for other purposes: Hearne v Street. Such documents can only be used for other purposes or 'released' if:

  1. The documents were admitted as evidence and thus became public (subject to an order to the contrary).
  2. The party was released from the undertaking by the court. The court will release a party if (:Premier Travel v Satellite Centres of Australia):
    1. Such use will result in injustice to the person who produced the documents under subpoena; and
    2. There are special circumstances. The special circumstances test involves considering the following factors:
      • The particular nature of the material produced
      • The policy underlying implied undertaking
      • Whether the needs of justice are better served by relieving from or maintaining the undertaking; and
      • Any other relevant factors.

Subpoenas and Interrogatories

Through a subpoena, a court may order parties (and third-parties) to produce documents. Subpoenas may be set aside on application (r 33.4), if they contain any of the following characteristics (:Commissioner of Police v Tuxford):

  • The subpoena is used to substitute to discovery.
  • The subpoena is oppressive. Defined as:
    1. Subpoena fails to sufficiently specify what documents it called for; or
    2. Compliance with supoena is too onerous (eg, a massive amount of documents).
  • The subpoena has an improper purpose - ie, not for the purposes of litigation.
  • There is an absence of apparent relevance of the documents.
  • The subpoena has no legitimate forensic purpose. Applicant must show forensic purpose before subpoena is granted. Two step process (:Attorney General for NSW v Chidgey):
    1. Identify a legitimate forensic purpose for which access is sought.
      • A legitimate forensic purpose is different to mere relevance.
    2. Establish that it is “on the cards” that the documents will materially assist his or her case.
      • This has been interpreted as 'likely': ICAP Australia v BGC Partners (Australia)

Non-compliance with a subpoena is not taken lightly as is punishable with contempt: r 33.12; J P Morgan Trust v Kapetanovic.

Interrogatories is discovery of evidence through questions under oath (answers constitute evidence: r 22.6). It is ordered when proving other matters in the pleadings has been (or may be) difficult or expensive: Lang v Australian Coastal Shipping Commission.

  • Though interrogatories can be applied for at any stage of the proceedings (r 22.1 (1)), they are usually only ordered after evidence has been submitted, since they are only to be ordered when 'necessary': r 22.1 (4); Vanacom Pty Ltd v Morgan Brooks Pty Ltd.
  • A party can object to answering interrogatories if the interrogatory does not relate to any matter in issue between the parties, is vexatious or oppressive or the answer could disclose privileged information: r 22.2

Parties may be ordered to answer questions, and will have to provide affidavits verifying the answers: r 22.3.

Concluding Proceedings

Some proceedings are concluded through summary disposal procedures as opposed to trials or settlements. Summary disposal procedures is where a party applies to the court to dispose of the claim summarily (there are a number of ways) because of a deficiency in the opposing party's case. Summary disposal procedures and their relevant principles include:

  • Default judgment - when the defendant does not enter an appearance/fail to back it up with an affidavit/the defence was struck out (:r 16.2), a plaintiff can ask for a default judgment: r 16.3.
    • Default judgments may be set aside: r 36.16 (a) and (b).
      • Applicant would need to explain the reason for the default and show that there is a reasonable defence to the claim.
  • Summary judgment - summary judgment for the plaintiff when the defendant does not reveal a valid defence to the claim: r 13.1.
    • Application for summary judgment must include 'evidence of belief' that the defendant has no valid defence: r 13.1.
    • Summary judgments to be given with extreme caution, only when it is absolutely certain and clear that there are no triable issues: Cosmos E-C Commerce v Bidwell:
  • Summary dismissal - summary judgment for the defendant when statement of claim is either:
    1. Frivolous or vexatious,
    2. Has no reasonable chance of success; or
    3. Is an abuse of process.
    • Suing someone in order to compel a closely related entity to pay compensation is not an abuse of process: Van Der Lee v NSW.
    • Summary dismissal is only given in extraordinary cases where proceeding would clearly inflict unnecessary injustice upon the opposite party: Fawcett v Cannon.
  • Dismissal due to 'lack of due despatch - judgment to either party on the basis that opponent is not abiding by deadlines: r 12.7.

When proceedings have been summarily dismissed in one way or another (lack of due dispatch, summary disposal etc) before a hearing on the merits of the claim, the plaintiff is not usually prevented from instituting fresh proceedings: CPA, s 91 (1).

  • However, if the court summarily dismissed the proceedings based on its merits, then the plaintiff will be prevented from instituting fresh proceedings.

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