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:

o Superior courts have an inherent jurisdiction to regulate their
processes and prevent an abuse of process: Jago v District Court
of New South Wales
o 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
o 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
o 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
o 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 fulfil this duty:

CPA Division 2 of Part 6:

o 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
o s 62 directions as to conduct of hearing
o 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
o r 2.3 - directions and orders may relate to and of the listed court
processes for the purposes of case management
Application:
o Courts balance the dictates of justice (allowing parties to
make amendments etc) against the need to
keep proportionate costs and eliminating delay
o Court is required to give weight to all three
considerations: Dennis v Australian Broadcasting Corp
o 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
o 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
o

Costs and Security for Costs

Legal costs should 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)
o 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
o Party-Party costs usually paid on an ordinary basis (partial, not
full): r 42.2; Baulderstone Hornibrook Engineering v Gordian
Runof
o 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 Runof
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?
o 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
o

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 Pfeifer 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
o Supreme Court can issue whenever just or convenient by
virtue of its inherent jurisdiction and s 66 (4) of the Supreme
Court Act 1970
o Federal Court has power under: Federal Court of Australia
1976 (Cth), s 23
o 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
o Delivery of assets as security goes well beyond a freezing
order: Jackson v Sterling Industries
o 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
o 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
"may have information" only requires that the
information may assist in the process, not necessarily
'definitively resolve' the question (this applies to the
other purpose too): Roads & Traffic Authority vs
Australian National Car Parks
o 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
o 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
o 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:
o When litigation is complex and protracted
o 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

o 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)
o 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:
o 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);
o '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)
o 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
o Privilege applies to third-parties only if made for purpose
of litigation (not legal advice): Mitsubishi Electric v Victorian
Workcover Authority
Loss of privilege:

o
o

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
o Applies to legal issues, not facts
o Does not apply in criminal law
o 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
o 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:
o Only for court-annexed mediation: Azzi & Ors v Volvo Car
Australia
o Exception: for purposes of enforcing mediation agreements:
s 29 (2)
o 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
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
o An appearance usually takes the form of a defence: r 6.9
o 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)
o 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
o 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
o 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 Employees Association (WA)
o 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
o The court may make an order for particulars: r 15.10
o 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
o 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
o

Discovery
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
o 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
o 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
o Special circumstances in this context: out of the ordinary - not
"exceptional" at large but "exceptional" because they
necessitate disclosure: In the matter of Mempoll, Anakin and
Gold Kings (Australia)
o A situation where highly relevant information is largely in
the possession of one party constitutes exceptional
circumstances for this purpose: In the matter of Mempoll, Anakin
and Gold Kings (Australia)

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):
o Such use will result in injustice to the person who produced
the documents under subpoena; and
o 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 subpoena 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
o 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
o 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); Venacom 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
o 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
o Application for summary judgment must include 'evidence of
belief' that the defendant has no valid defence: r 13.1
The 'evidence of belief' does not need to be express - it
can be inferred from the affidavit: Cosmos E-C Commerce
v Bidwell
o 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
o Suing someone in order to compel a closely related entity to pay
compensation is not an abuse of process: Van Der Lee v NSW
o 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