Civil and Criminal Procedure – Tutorial 10 PDF

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Civil and Criminal Procedure – Tutorial 10 – 21/05/19     

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EXAM: Only problem style questions – no extended essay questions. Trial or No Trial. TUTORIAL 10 Trial or No Trial Problems Consider the facts of Fernando v SRA from Topic 4, tutorial 4 and answer the following questions. (a) Sam Fernando’s claim has been listed for hearing in the Supreme Court of NSW in Sydney on 21 May 2018. It has an estimate of 3 weeks. SRA’s solicitor has just been advised by its Senior Counsel that a cross claim should be issued against the manufacturer of the train door. What should the solicitor do? Consider the applications that may need to be made and any legislation or case law that might be used to support such applications. Structuring this response S66 ADJOURNMENT CASE LAW STATUTE LAW AON PART 9 UCPR. COST REPERCUSSIONS POSSIBLY YES. (s 98 and 66) Cross claim filed within 28 days of day of service. UCPR 9.1. Must be served personally S 22 CPA. Defendants right to cross claim is up to courts discretion and overriding purposes. File notice of motion for an adjournment. 66 CPA. 18.1/18.3 S Court will exercise discretion as to whether granting the adjournment. S 56 (overriding guidelines) Relevant case law: AON Risk Services v ANU (p. 107) = must consider courts time and resources. Overriding purpose of civil procedure pursuant to S 56 CPA. Justice must be performed to all litigates. Focus on justice at expense of case management. J.L Holdings = if you sought to have an amendment you have the right to that/adjournment. AON case showed that this was not the case. In this problem question: Only just been listed, so not seen as late application for adjournment like was the case in AON. Discuss AON case, and courts approach to case management and how it has shifted since that case. Service of cross claim? o UCPR 9.6 active parties/ 9.7 new parties. Must be served. Cost claims? o CPA s 66 – if adjournment party bringing claim can be ordered to pay costs. o CPA s 98 courts power to order costs (b) Assume the claim has been listed for hearing on 21 May 2018 and that SRA’s solicitor has been advised that the driver of the train (that was involved in the

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subject accident) has gone to Argentina for 3 months. SRA’s solicitor inadvertently did not issue a subpoena to give evidence to the driver. What should the solicitor do? Consider the applications that may need to be made and any legislation or case law that might be used to support such applications. Application to adjournment pursuant to s 66 CPA. Part 11A UCPR. Return date can’t impact on court listings, otherwise won’t be granted. 11A.4 UCPR application for request for service abroad including documentation and affidavit. May be able to serve internationally = Audio and Video Link Evidence Act 1998 and link the person via video. (c) Assume SRA’s solicitor did not file a Defence in the Registry. What should the plaintiff do? Consider the applications that may need to be made and any legislation or case law that might be used to support such applications. Defendant may go into default if they don’t file a defence in 28 days (Part 16 UCPR 2005) Default under 16.2 is (a) “defendant fails to file defence” (b) “fails to file affidavit” (c) “struck out”. Default judgment can only be applied in relation to proceedings commenced by a statement of claim (16.1) 16.3 if defendant at default, plaintiff can apply for judgment to be given if defendant is at default. Statement of claim must have been served properly pursuant to ______, affidavit also in support of this application. Plaintiff can then obtain un-liquidated claim and damages under 16.7 with evidence of affidavit and cost determined by the court. 36.16(2)(a) court may set aside or vary a judgment or order after it has been entered if it is a default judgment. (b) Absence of party. Dunwoodie v Teachers Mutual Bank p. 967 = set aside default judgment. Defendant must prove satisfactory explanation, and show that their defence has merit. Court has discretion as to whether to set aside default judgment. Wariwack v Hoggs (2006) – reluctance of court to allow matter to proceed without deciding on merit, must be arguable claim. Ulterrama case p. 964 S. 60 proportionality of costs. 28 DAYS TO FILE DEFENCE UNDER 14.3. (d) Assume SRA’s solicitor filed a Defence in the Registry but did not serve it on the plaintiff. What should the Plaintiff do? Consider all applications that could be made and any legislation or case law that might be used to support such applications. UCPR 10.1 = (a) filed documents must be served on the active other party as soon as practicable. UCPR 16.2(2)(c) a defendant is not in default if they have filed a defence after the time limited by these rules or allowed by the court. UCPR 14.28(1) a court may at any stage order that the whole or any part be struck out if the pleadings: (a) discloses no reasonable cause of action or defence, (b) prejudice, embarrassment or delay. (c) abuse of process. Relevant case law: Priest v NSW p.543 = struck out if pleadings cause embarrassment ot delay, unintelligible ambiguous or vague. Williams p. 547 show pleadings as an abuse of process.

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If defence is struck out we can automatically apply for a default judgment pursuant to 16.2. Order based on failure to comply with directions under S 61 CPA. Procedural irregularities s 63. Court will likely ultimately allow correction of service due to oversight. (e) If the plaintiff succeeds in his application in (c), is there anything that SRA can do? Consider the applications that could be made and any legislation or case law that might be used to support such applications. Relevant to previous question, same answers. UCPR, Dunwoodie. Set aside pursuant to 36.16 = defendant would file motion to set aside. Defendant must show why they have been delayed. UCPR 12.7 proceedings may be dismissed (alternative instead of striking out) one party isn’t abiding my deadlines, thus undermining purpose of civil procedure, relation to S 56. (f) The plaintiff wishes to make an application under UCPR 13.1. Under what circumstances would the plaintiff make such an application? Assume that the defendant has denied all claims in the statement of claim and has pleaded a defence of contributory negligence and failure to take reasonable care. Advise the plaintiff as to the success of such an application and the steps that he would need to take to make the application. Consider appropriate legislation and case law. Summary judgment has defence present but the defence is weak and wasting court resources. Plaintiff ought to be granted a judgment. Must be no real question in dispute, thus threshold is very high and defence must be groundless and untenable that could not possibly succeed. Cosmos Case = courts exercise exceptional caution in granting a summary dismissal/judgment (p.972) Dey v Victorian Railways Commissioners = cannot possibly succeed and does not have argument. Default is when defence doesn’t rock up/file a defence. Plaintiff will likely lose on application for summary judgment. (g) The defendant wishes to make an application under UCPR 13.4. Advise SRA as to the success of such an application and the steps that it would need to take to make the application. Consider appropriate legislation and case law. Defendant can enquire into a summary dismissal whilst plaintiff can enquire into summary judgment pursuant to UCPR 13.4. Burden of proof = Frivolous and vexatious proceedings = not serious or undertaken for harassment. Corresponding right to a defendant to have the proceedings set aside. (p. 979 = Fawcett v Canon = everyone has a right to bring an action and right to answer an action) (h) SRA are concerned that Sam Fernando does not have the funds to pay any of SRA’s costs should he not succeed in his claim. SRA instruct its lawyers to make an application for security of SRA’s costs of defending the plaintiff’s claim. Advise SRA as to the success of such an application and the steps that it would need to take to make the application. Consider appropriate legislation and case law. Security or cost order 42.21 UCPR. To make sure costs are covered if defendant/plaintiff is successful in litigation. CPA s 67 stay of proceedings = can apply for stay in proceedings.

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S 1335 Corporations Act. Inherent jurisdiction of the Court to order this (Wells v Francis p. 185 court has inherent power to order security for costs) o Protects the rights of the defendant, at the courts discretion. o Poverty is no bar to litigation. Idaport v Wollongong (i) Assume the hearing has not been listed and the case is being managed to ensure that it is ready for hearing. Assume that the court has ordered on several occasions for the plaintiff to serve all of his medical evidence by a certain date. Assume that the plaintiff has not complied with the court’s orders. Is there anything that SRA can do? Consider appropriate legislation and case law. Claim may be dismissed under 12.7 subsection 1 and 2. Due dispatch case may be dismissed under s 56. s 61 orders. Summary dismissal pursuant to 13.4. (j) Assume for the purpose of this question only that Sam Fernando has been advised that he only has months to live. Sam advises his lawyer that he does not wish to spend the last months of his life in litigation. Advise Sam of the options that he could take in light of his recent news. Rule 20.26 UCPR = making an offer to settle proceedings. Could settle through UCPR and Calderbank offer. UCPR settlement offer is rigid, including no discussion of costs. Certainty to what you’ll get. Calderbank offer is more flexible, not as strict rules, but more uncertain. Embedded in common law. Letter of offer without prejudice. (p. 1002-1003) UCPR is usually better pursuant to 20.26 because consequences are virtually automatic. In making an offer here, rules have automatic cost consequences, burden is on offeree to establish exceptional circumstances. Discontinue proceedings is another option pursuant to 12.1 UCPR. (p. 1007) Could also make an offer to the defendant, under UCPR 20.26/Calderbank Letter. Discretion of party as to what option to take. (k) While SRA is considering whether and how to participate in settling the matter, it continues to gather evidence in case the claims progress toward trial. SRA’s solicitors wish to obtain all documents in Sam’s solicitors’ possession that reference Sam’s travel to or from or presence in Wollongong. How would SRA go about requesting this evidence? How would Sam’s solicitors likely respond? Consider appropriate legislation and case law. Issuing subpoena 33.3 UCPR personally addressed to one person. Discovery is an option, UCPR 21.8/21.12 but it can’t be used for personal injury claims here unless exceptional circumstances. Case of Percy and case of Priest show special reasons for discovery in personal injury cases. Notice to produce Part 21 – but issues here also because it is personal injury matter. (l) The plaintiff wishes to make an offer to SRA to settle his claim for $1 million plus costs. Advise the plaintiff as to procedure/s to make such an offer and the consequences of such action. Consider appropriate legislation and case law. 20.26 offer of compromise, or offer by Calderbank letter. If offer is accepted, cost fees calculated on an ordinary basis.

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20.26(3)(b) costs can be discussed. If party unreasonably denies an offer, then potential cost consequences e.g indemnity basis. S. 98 costs are up to the court to determine. Calderbank letter leaves costs to the discretion of the court. Calculate what the result will likely be. If offer is rejected, cost consequences depend on result at the end. (m)The defendant wishes to make an offer to the plaintiff to settle his claim for $800,000 plus costs. Advise the defendant as to procedure/s to make such an offer and the consequences of such action. Consider appropriate legislation and case law. UCPR 20.26(3)(b) costs can be provided for as long as defendant pays plaintiff costs as agreed. 42.15 if offer is made by defendant, but not accepted by plaintiff, then the ultimate reward will be no more favorable than the offer to the plaintiff. (n) Assume that both offers described in (l) and (m) are made in with formal notice in accordance with UCPR 20.26. Both offers are not accepted. Assume that the plaintiff’s claim is heard by a Supreme Court judge who enters a verdict for the plaintiff and awards damages in favour of the plaintiff together with an order that the defendant pay the plaintiff’s costs. What would be the impact of the offers if the damages awarded were: (i) $1.3 million plus costs 42.14 if offer made by plaintiff, but not accepted by defendant. Defendant has to pay costs from date of commencement, through to date that offer was made. However, also have to pay indemnity basis from date of offer to date of judgment if they later lose. If they are no better off at the judgment than they were at the offer (should have accepted offer) (ii) $900,000 plus costs 42.1 costs follow the event. Courts discretion. (iii) $790,000 plus costs Plaintiff should have taken defendants offer. 42.15 defendants will pay plaintiffs cost on ordinary basis. But Plaintiff will then pay indemnity basis after this. (o) Assume that trial is set to begin on 21 May 2018. On 1 February 2018, SRA makes an Offer of Compromise under the UCPR to settle the matter for $750,000. On 15 February 2018 SRA sends a letter stating that it is withdrawing the offer made on 1 February and is making a new UCPR Offer of Compromise of $500,000. Sam’s solicitors write back to SRA accepting the 1 February offer and seek to have the court enter the settlement. SRA argues that no offer was accepted because the offer was withdrawn. How is the Court likely to rule? Offer must remain open for no less than 28 days. 20.26 (5)(a) can’t make an offer and then keep withdrawing it or changing your mind. Party may make more than one offer but not withdraw within 28 days. Can’t be withdrawn within period of acceptance. 20.27 accepting an offer....