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Lecture 1 – Introduction; Guiding Principles; Case Management and the Overriding Purpose Procedural Law

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Procedural law is the law that governs the conduct of proceedings before the court. Procedural law is “rules which are directed to governing or regulating the mode or conduct of court proceedings” – McKain v RW Miller & Co (SA) Pty Ltd

Purposes  

Provides the institutions and rules which facilitate dispute resolution. Civil procedure law has an important role in managing the flow and conduct of litigants. It has practical economic and bureaucratic functions which are very important in a litigious age where the costs of court action are ever-increasing.

Sources – three sources; divided between each arm of the government   

The legislature – NSW government, which creates instruments like the Supreme Court Act and the Civil Procedure Act The executive – Uniform Civil Procedure Rules 2005 – which are made pursuant to the CPA The judiciary – Through the inherent jurisdiction of superior courts, court practice notes, and judicial decision, the courts develop their own forms of procedural law o Inherent jurisdiction  a superior court has the jurisdiction to hear any matter that comes before it and thus allows courts to “property exercise their powers, perform their functions, and to control abuse of process” – Riley McKay Pty Ltd v McKay

Overriding Purpose (s 56) CPA 

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S 56(1)  “The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” The overriding purpose of the CPA is not about the court’s final decision on the substantive rights and interests in the legal dispute, rather, it is relevant to the process through which the dispute is resolved – the procedural decisions of judges and the conduct of judges, parties and lawyers along the way The overriding purpose is relevant to all case management decisions made by judges pursuant to CPA and UCPR. Hans Pet Constructions Pty Limited v Cassar (Allsop J) o “The reforms of the system of civil litigation in NSW in recent years, typified by the CPA and the UCPR reflect the deliberate governmental aims of promoting and facilitating the speedy disposition of proceedings in order that citizens of the State can obtain prompt resolution of their complaints.” It’s clear that there is an inherent tension between justice, efficiency, and cheapness – Halpin v Lumley General Insurance Ltd (Basten J) o “s 56 purports to identify a single ‘overriding purpose’, namely to facilitate ‘the just, quick and cheap resolution of the real issues’ in civil proceedings. It is self-evident that what will be required in most cases is the resolution of a tension between speed (including avoidance of delay), reduction of costs and the proper consideration of the issues raised by the parties, especially in cases of complexity”

Objects of Case Management (s 57) CPA 

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S 57(1)  “For the purposes of furthering the overriding purpose referred to in s 56(1), proceedings in any court are to be managed having regard to the following objects” o (a) the just determination of the proceedings o (b) the efficient disposal of the business of the court o (c) the efficient use of available judicial and administrative resources o (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties Conscious decision of the courts and the legislature to overcome unacceptable delay and costs and promote the civil legal system as an administrator of justice for all

Case Management – UCPR r 2.1 – 2.3 o

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2.1 – “The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or nor inconsistent with these rules or any other rules of court) for the just, quick, and cheap disposal of the proceedings” 2.3 – “Without limiting the generality of rule 2.1, directions and orders may relate to any of the following”; (a) – (k) “An approach to the control of litigation which the court supervises or controls the progress of the case through its interlocutory phase” – Colbran et al, Readings p.89 Case management still guided by overriding purpose – not efficiency or cost alone

Dictates of Justice (s 58) CPA  

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Court must seek to act with the dictates of justice in deciding whether to make any order or direction for the management of proceedings (1) in deciding: o (a) whether to make any order or direction for the management of proceedings, including:  (i) any order for the amendment of a document, and  (ii) any order granting an adjournment or stay of proceedings, and  (iii) any other order of a procedural nature, and  (iv) any direction under Division 2, and o (b) the terms in which why such order or direction is to be made, the court must seek to act in accordance with the dictates of justice (2) For the purpose of determining what are the dictates of justice in a particular case, the court: o (a) must have regard to the provisions of s 56 and s 57, and o (b) may have regard to the following matters to the extent to which it considers them relevant:  (i) the degree of difficulty or complexity to which the issues in the proceedings give rise  (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities

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(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties (iv) the degree to which the respective parties have fulfilled their duties under s 56(3) (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in proceedings (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction (vii) such other matters as the court considers relevant in the circumstances of the case

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Facts   

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Parties were engaged in a long running commercial dispute concerning a lease to develop certain land Estimated length of trial was four months After a number of interlocutory hearings and several amendments to the defence, the defendants applied again to amend their defence. All but one of their amendments were allowed Kiefel J in the FCA refused leave to add defence which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead The judge considered that maintaining that date was a more pressing consideration than a party’s right to present a further defence Defendant’s had amended defence a number of times and finally Kiefel J in FCA refused leave to add a defence as this would have prevented the trial from occurring at the fixed date

Held    

That while case management principles were a relevant consideration, they could not be used to prevent a party from litigating an issue which was fairly arguable A party should be permitted to raise an arguable defence provided any prejudice to other parties could be compensated by costs Defendant should have been allowed to raise a further defence as procedural fairness was more important than fixed trial date Dawson, Gaudron and McHugh JJ o “Nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable.” o “Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant (supersede or replace) that aim.”

“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.” Case management considerations, including the availability of court resources, are not irrelevant, but “justice is the paramount consideration in determining an application such as the one in question”  justice takes priority over case management o

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AON Risk Service v Australian National University (2009) 239 CLR 175 Facts o

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Rule 21(2) of the Court Procedures Rules 2006 (ACT) provided that the rules were to be applied in civil proceedings “with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties” Rule 501 provided that “all necessary amendments of a document must be made for the purpose of (a) deciding the real issues in the proceedings; or … (c) avoiding multiple proceedings”. Rule 501(2) provided that “at any stage of a proceeding, the court may give leave for a party to amend … an originating process … a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate”. On the third day of the four-week trial of a proceeding that had been on foot for two years, the plaintiff applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant Plaintiff asked for adjournment during trial and for leave to amend Statement of Claim to add substantial new claim. The issue is whether application could be dismissed on case management principles

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That, to be regarded as a real issue for the purposes of r 501(a), and for amendment therefore to be necessary, the relevant dispute or controversy had to exist at the time of the application That, when considering whether an amendment was necessary to avoid multiple proceedings under r 501(c), the court was entitled to consider whether reasonable diligence on the part of the moving party would have led to the bringing of the claim in the existing proceedings, so that any further proceedings might be barred on grounds of abuse of process or estoppel. That amendments raising entirely new issues fell to be considered under the general discretion given by r 502(1), read with the objectives outlined in r 21(2). A party did not have an entitlement to amend a pleading, subject to payment of costs by way of compensation. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants – the concerns of case management – would assume importance on an application for leave to amend. Relevant matters would also include the nature and importance of the amendment to the party applying, the stage the litigation had reached

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when the amendment was sought, and the explanation for any delay in applying for amendment When considering leave to amend, the substantial costs and delay should be considered equally against the need to achieve justice (don’t automatically have the right to amend pleading)

Lecture 2 – Alternative Dispute Resolution; Facilitative, Advisory and Determinative Processes Alternative Dispute Resolution (ADR)  

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Use of methods such as mediation or arbitration to resolve a dispute without resort to litigation ADR processes “are designed to provide disputants with procedural options that are appropriate to the dispute. The procedures may be faster, cheaper, less adversarial and more flexible than litigation, but more structured and regulated than the disputants’ own efforts to resolve the conflict. ADR aspires to provide a broad framework for resolving disputes in ways that are accessible, effective, psychologically satisfactory, and procedurally fair to the disputants” Serves as a: o Risk management tool to settle an individual dispute without litigation or publicity o Case management tool to reduce the workload of a court or the number of complaints within an org or across an industry o Useful management tool to gauge what is generating conflict and how to create a conflict resilient organization o Potential makes justice more accessible and affordable Objectives o To resolve or limit disputes in an effective and efficient way o To provide fairness in procedure o To achieve outcomes that are broadly consistent with public and party interests Benefits o Faster – not going through the formalities of legal system o Cheaper – ADR often reduces the role of lawyers or occurs without them o Less adversarial o More flexible – as the parties are coming to their own solutions, more options on the table o Guided process – 3rd party presence trying to structure the process; mediator or arbitrator Disadvantages o If unsuccessful, may lead to longer and more stressful disputes o Some cynical parties can use it to draw out disputes o Bad faith participation and power imbalances can disadvantage vulnerable participants o Could potentially delay needed change by not allowing serious legal issues to be ventilated in court Mediation

A mediator assists the parties to identify issues involved in the dispute and helps the parties to develop options for resolution to consider alternative ways to reach a negotiated agreement. o It is  Cost and time effective  Voluntary – all parties have the right to withdraw from mediation at any time  Informal – no restrictions as to what is discussed  Controlled by the parties  Private and confidential  Privileged Arbitration o Arbitrator provides a determinative ruling in the form of an award. o The arbitrator may be appointed by the court or by agreement between the parties to the dispute Early neutral evaluation o Evaluator considers the circumstances of the dispute and allows each of the parties an opportunity to present their case. o The evaluator identifies the strengths and weaknesses of the parties’ positions and highlights the areas of agreement in the dispute o Evaluator then issues an assessment of the merits of the case, which the parties may agree will be binding or non-binding Expert determination o Expert determiners may be chosen because of legal expertise and will use their knowledge to resolve the issues involved in the dispute. o Expert determiners may decide all issues between the parties, or a specific issue chosen by the parties. The decision may be binding or non-binding Adjudication o Similar to court proceedings but occur outside of court. o Adjudicator reviews evidence and submissions put forward by opposing parties or litigants and makes a determination as to the rights and obligations between the parties. o Decision is generally binding Conciliation o Can assist parties to a dispute such as:  Identifying issues in dispute  Developing options  Considering alternatives  Working to reach an agreement o May advice on or decide the process of conciliation, recommendations for terms of settlement, give expert advice on likely settlement terms, and actively encourage the participants to reach an agreement. o They however, do not make a determination Negotiation and ADR o Various forms of negotiation are used in ADR’s and an experienced neutral third person can be used to facilitate negotiations. o

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In such circumstances, the person facilitating the negotiation does not usually advice on or determine issues being negotiated or the outcome of the process, but may advise or determine the process of negotiation Powers of the Court to refer to matters to ADR o S 26 of the CPA  (1) “if it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned” o S 38 of the CPA  (1) “the court may order that proceedings before it: o (a) in respect of a claim for the recovery of damages or other money, or o (b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money  Be referred for determination by an arbitrator” o R 20.14 of the UCPR  (1) “At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the proceedings.” o

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Lecture 3 – Access to Justice; Open Justice Pre-litigation Steps and Client Care; Case Analysis: Parties and Causes of Action; Jurisdiction Open Justice General 

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“Open justice is one of the fundamental attributes of a fair trial. That the administration of justice must take place in open courts is a ‘fundamental rule of the common law’. The High Court has said that ‘the rationale of the open court principles is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances” “It is well established that the principal 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. There is no inherent power of the court to exclude the public.” – John Fairfax Publications Pty Ltd v District Court of NSW per Spigelman CJ It is a crucial component of rule of law “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” – R v Richards & Bijkerk Only depart from open justice in exceptional circumstances (eg. Non-publication orders, pseudonyms etc.)

Exceptions to Open Justice 

S 71 CPA  the court can be closed to the public for a number of reasons, including: o “the business of a court in relation to any proceedings may be conducted in the absence of the public in any of the following circumstances”  (a) on the hearing of an interlocutory application, except while a witness is giving oral evidence  (b) if the presence of the public would defeat the ends of justice  (c) if the business concerns the guardianship, custody or maintenance of a minor  (d) if the proceedings are not before a jury and are formal or noncontentious  (e) if the business does not involve the appearance before the court of any person

(f) if, in proceedings in the equity division of the supreme court, the court thinks fit  (g) if the uniform rules so provide S 8 Court Suppression and Non-Publication Orders Act 2010 (CSPO)  relevant grounds for making a suppression or non-publication order are: o The order is “necessary to prevent prejudice to the proper administration of justice” o The order is “necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security” o The order is “necessary to protect the safety of any person” o “it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice” The court can ...